Nos.

14-2386, 14-2387, 14-2388

In The United States Court of Appeals
For The Seventh Circuit


MARILYN RAE BASKIN, et al.,
Plaintiffs-Appellees,
v.

GREG ZOELLER, et al.,
Defendants-Appellants.


MIDORI FUJII, et al.,
Plaintiffs-Appellees,
v.

COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF REVENUE,
in his official capacity, et al.,
Defendants-Appellants.


PAMELA LEE, et al.,
Plaintiffs-Appellees,
v.

BRIAN ABBOTT, et al.,
Defendants-Appellants.


On Appeal From The United States District Court
For The Southern District of Indiana
Case Nos. 1:14-cv-00355-RLY-TAB,
1:14-cv-00404-RLY-TAB, 1:14-cv-00406-RLY-MJD
The Honorable Richard L. Young Presiding

SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES
VOL. 1 OF 2
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (1 of 518)


Paul D. Castillo (Counsel of Record)
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500
Dallas, Texas 75219

Jordan M. Heinz
Brent P. Ray
Dmitriy G. Tishyevich
Melanie MacKay
Scott Lerner
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, Illinois 60654

Camilla B. Taylor
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
105 West Adams, Suite 2600
Chicago, Illinois 60603


Counsel for Plaintiffs-Appellees Marilyn Rae Baskin, et al.

Kenneth J. Falk (Counsel of Record)
Gavin M. Rose
Kelly R. Eskew
ACLU OF INDIANA
1031 East Washington Street
Indianapolis, Indiana 46202

Sean C. Lemieux
LEMIEUX LAW
23 East 39th Street
Indianapolis, Indiana 46205


James Esseks
Chase Strangio
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004

Counsel for Plaintiffs-Appellees Midori Fujii, et al.

William R. Groth (Counsel of Record)
FILLENWARTH DENNERLINE
GROTH & TOWE LLP
429 E. Vermont Street, Suite 200
Indianapolis, Indiana 46202

Karen Celestino-Horseman
Of Counsel, AUSTIN & JONES, P.C.
One North Pennsylvania Street,
Suite 220
Indianapolis, Indiana 46204

Mark W. Sniderman
SNIDERMAN NGUYEN, LLP
47 South Meridian Street, Suite 400
Indianapolis, Indiana 46204
Kathleen M. Sweeney
SWEENEY HAYES LLC
141 East Washington, Suite 225
Indianapolis, Indiana 46204

Counsel for Plaintiffs-Appellees Pamela Lee, et al.
Additional Counsel Listed on Signature Block
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (2 of 518)



Dated: July 29, 2014

Respectfully submitted,

/s/ Jordan M. Heinz

Jordan M. Heinz
Brent P. Ray
Dmitriy G. Tishyevich
Melanie MacKay
Scott Lerner
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, Illinois 60654
(312) 862-2000
jordan.heinz@kirkland.com
brent.ray@kirkland.com
dmitriy.tishyevich@kirkland.com
melanie.mackay@kirkland.com
scott.lerner@kirkland.com

Barbara J. Baird
LAW OFFICE OF BARBARA J. BAIRD
445 North Pennsylvania Street, Suite
401
Indianapolis, Indiana 46204-0000
(317) 637-2345
bjbaird@bjbairdlaw.com

Counsel for Plaintiffs-Appellees
Marilyn Rae Baskin, et al.


Paul D. Castillo (Counsel of Record)
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500
Dallas, Texas 75219
(214) 219-8585, ext. 242
pcastillo@lambdalegal.org

Camilla B. Taylor
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
105 West Adams, Suite 2600
Chicago, Illinois 60603
(312) 663-4413
ctaylor@lambdalegal.org


/s/ Kenneth J. Falk
Kenneth J. Falk (Counsel of Record)
Gavin M. Rose
Kelly R. Eskew
ACLU OF INDIANA
1031 East Washington Street
Indianapolis, Indiana 46202
(317) 635-4059
kfalk@aclu-in.org
grose@aclu-in.org
keskew@aclu-in.org

/s/ Sean C. Lemieux
Sean C. Lemieux
LEMIEUX LAW
23 East 39th Street
Indianapolis, Indiana 46205
(317) 985-5809
sean@lemieuxlawoffices.com



Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (3 of 518)



James Esseks
Chase Strangio
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004
(212) 549-2627
jesseks@aclu.org
cstrangio@aclu.org

Counsel for Plaintiffs-Appellees
Midori Fujii, et al.


/s/ Karen Celestino-Horseman
Karen Celestino-Horseman
Of Counsel, AUSTIN & JONES, P.C.
One North Pennsylvania Street, Suite
220
Indianapolis, Indiana 46204
(317) 632-5633
karen@kchorseman.com

Mark W. Sniderman
SNIDERMAN NGUYEN, LLP
47 South Meridian Street, Suite 400
Indianapolis, Indiana 46204
(317) 361-4700
mark@snlawyers.com

Robert A. Katz
Indiana University
McKinney School of Law
530 West New York Street, Room 349
Indianapolis, Indiana 46202

Counsel for Plaintiffs-Appellees
Pamela Lee, et al.
/s/ William R. Groth
William R. Groth (Counsel of Record)
FILLENWARTH DENNERLINE
GROTH & TOWE, LLP
429 East Vermont Street, Suite 200
Indianapolis, Indiana 46202
(317) 353-9363
wgroth@fdgtlaborlaw.com

Kathleen M. Sweeney
SWEENEY HAYES LLC
141 East Washington Street, Suite 225
Indianapolis, Indiana 46204
(317) 491-1050
ksween@gmail.com






Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (4 of 518)



CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2014, I caused a true and correct copy of the
foregoing SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES (VOL. 1
OF 2) to be electronically filed with the Clerk of the Court for the United States
Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that
all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.

Dated: July 29, 2014 /s/ Jordan M. Heinz



Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (5 of 518)


Unpublished Cases Cited in Brief of Plaintiffs-Appellees
No. Case
1
Baskin v. Bogan, No. 1:14-cv-00355, 2014 WL 2884868 (S.D. Ind. June 25,
2014)
2
Bishop v. Smith, Nos. 14-5003, 14-5006, 2014 WL 3537847 (10th Cir. July
18, 2014)
3 Bostic v. Schaefer, No. 14-1167 (4th Cir. July 28, 2014)
4 Bourke v. Beshear, 3:13-cv-750-H, 2014 WL 556729 (W.D. Ky. Feb 12, 2014)
5
Brinkman v. Long, No. 13-cv-32572, 2014 WL 3408024 (Adams Cnty. Dist.
Ct. July 9, 2014)
6
Burns v. Hickenlooper, No. 14-cv-01817, 2014 WL 3634834 (D. Colo. July 23,
2014)
7 Evans v. Utah, No. 2:14-cv-00055, 2014 WL 2048343 (D. Utah May 19, 2014)
8
Geiger v. Kitzhaber, Nos. 6:13-cv-01834, 6:13-cv-02256, 2014 WL 2054264
(D. Or. May 19, 2014)

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Baskin v. Bogan, --- F.Supp.2d ---- (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 2884868
Only the Westlaw citation is currently available.
United States District Court,
S.D. Indiana,
Indianapolis Division.
Marilyn Rae BASKIN and Esther Fuller; Bonnie
Everly and Linda Judkins; Dawn Lynn Carver and
Pamela Ruth Elease Eanes; Henry Greene and
Glenn Funkhouser, individually and as parents
and next friends of C.A.G.; Nikole Quasney, and
Amy Sandler, individually and as parents and
next friends of A.Q.-S. and M.Q.-S., Plaintiffs,
v.
Penny BOGAN, in her official capacity as
Boone County Clerk; Karen M. Martin, in
her official capacity as Porter County Clerk;
Michael A. Brown, in his official capacity as
Lake County Clerk; Peggy Beaver, in her official
capacity as Hamilton County Clerk; William C.
Vanness II, M.D., in his official capacity as the
Commissioner, Indiana State Department of
Health; and Greg Zoeller, in his official capacity
as Indiana Attorney General, Defendants.
Midori Fujii; Melody Layne and Tara Betterman;
Scott and Rodney Moubray–Carrico; Monica
Wehrle and Harriet Miller; Gregory Hasty and
Christopher Vallero; Rob MacPherson and
Steven Stolen, individually and as parents and
next friends of L. M.-C. and A. M.-S., Plaintiffs,
v.
Governor, State of Indiana, in his official capacity;
Commissioner, Indiana State Department of
Health, in his official capacity; Commissioner,
Indiana State Department of Revenue, in his
official capacity; Clerk, Allen County, Indiana,
in her official capacity; Clerk, Hamilton County,
Indiana, in her official capacity, Defendants.
Officer Pamela Lee, Candace Batten–Lee, Officer
Teresa Welborn, Elizabeth J. Piette, Batallion Chief
Ruth Morrison, Martha Leverett, Sergeant Karen
Vaughn–Kajmowicz, Tammy Vaughn–Kajmowicz,
and J.S. V., T.S. V., T.R.V., by their parents and
next friends Sergeant Karen Vaughn–Kajmowicz
and Tammy Vaughn–Kajmowicz, Plaintiffs,
v.
Mike Pence, in his official capacity as Governor
of the State of Indiana; Brian Abbott, Chris
Atkins, Ken Cochran, Steve Daniels, Jodi Golden,
Michael Pinkham, Kyle Rosebrough, and Bret
Swanson, in their official capacities as members
of the Board of Trustees of the Indiana Public
Retirement System; and Steve Russo, in his
official capacity as Executive Director of the
Indiana Public Retirement System, Defendants.
Nos. 1:14–cv–00355–RLY–TAB, 1:14–
cv–00404–RLY–TAB, 1:14–cv–00406–
RLY–MJD. | Signed June 25, 2014.
Synopsis
Background: Same-sex couples brought action challenging
constitutionality of Indiana statute banning same-sex
marriage, and all other laws precluding such marriages
or preventing their recognition. Parties cross-moved for
summary judgment.
Holdings: The District Court, Richard L. Young, Chief
Judge, held that:
[1] Indiana Attorney General was a proper defendant;
[2] governor of Indiana was not a proper defendant;
[3] commissioner of the Indiana Department of Revenue was
a proper defendant;
[4] statute banning same-sex marriage violated same-sex
couples' fundamental right to marry;
[5] statute banning same-sex marriage did not discriminate
against same-sex couples based on their gender; but
[6] statute banning same-sex marriage discriminated against
same-sex couples based on their sexual orientation; and
[7] there was no rational basis for treating same-sex couples
differently by excluding them from marriage.
Motions granted in part and denied in part.
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Baskin v. Bogan, --- F.Supp.2d ---- (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2
West Codenotes
Held Unconstitutional
West's A.I.C. 31–11–1–1.
Recognized as Unconstitutional
1 U.S.C.A. § 7
Limited on Constitutional Grounds
West's A.I.C. 4–6–1–6, 31–11–4–1, 31–11–11–1, 31–11–11–
3, 31–11–11–4, 31–11–11–5, 31–11–11–7
Attorneys and Law Firms
Barbara J. Baird, The Law Office of Barbara J. Baird,
Indianapolis, IN, Brent Phillip Ray, Jordan Heinz, Kirkland
& Ellis LLP, Chicago, IL, Camilla B. Taylor, Christopher
R. Clark, Lambda Legal Defense and Education Fund, Inc.,
Chicago, IL, Paul D. Castillo, Dallas, TX, for Plaintiffs.
Robert V. Clutter, Kirtley, Taylor, Sims, Chadd & Minnette,
P.C., Lebanon, IN, Elizabeth A. Knight, Valparaiso, IN,
John S. Dull, Law Office of John S. Dull, PC, Merrillville,
IN, Nancy Moore Tiller, Nancy Moore Tiller & Associates,
Crown Point, IN, Omas M. Fisher, Office of the Attorney
General, Indianapolis, IN, Darren J. Murphy, Howard &
Associates, Noblesville, IN, for Defendants.
Opinion
ENTRY ON CROSS–MOTIONS
FOR SUMMARY JUDGMENT
RICHARD L. YOUNG, Chief Judge.
*1 The court has before it three cases, Baskin v. Bogan,
Fujii v. Pence, and Lee v. Pence. All three allege that
Indiana Code Section 31–11–1–1 (“Section 31–11–1–1”),
which defines marriage as between one man and one
woman and voids marriages between same-sex persons, is
facially unconstitutional. Plaintiffs in the Baskin and Fujii
cases challenge the entirety of Section 31–11–1–1, while
Plaintiffs in the Lee case challenge only Section 31–11–
1–1(b). Plaintiffs, in all three cases, allege that Section
31–11–1–1 violates their rights to due process and equal
protection under the Fourteenth Amendment of the United
States Constitution. In each case, Plaintiffs seek declaratory
and injunctive relief against the respective Defendants. Also
in each case, Plaintiffs and Defendants have moved for
summary judgment, agreeing that there are no issues of
material fact. For the reasons set forth below, the court
finds that Indiana's same sex marriage ban violates the due
process clause and equal protection clause and is, therefore,
unconstitutional. The court GRANTS in part and DENIES
in part the Plaintiffs' motions for summary judgment and
GRANTS in part and DENIES in part the Defendants'
motions.
I. Background
A. The Baskin Plaintiffs
The court considers the case of Baskin v. Bogan to be the
lead case and thus will recite only those facts relevant to
that dispute. In Baskin v. Bogan, Plaintiffs are comprised
of five same-sex couples and three minor children of
two of the couples. (Amended Complaint ¶ 1, Filing No.
30).
1
Four couples, Marilyn Rae Baskin and Esther Fuller,
Bonnie Everly and Linda Judkins, Dawn Carver and Pamela
Eanes, Henry Greene and Glenn Funkhouser (collectively
the “unmarried plaintiffs”), are not married; one couple,
Nikole Quasney and Amy Sandler (collectively the “married
plaintiffs”), married in Massachusetts while on their annual
vacation to the Sandler family home. Each couple resides in
Indiana and has been in a loving, committed relationship for
over a decade. Each couple has their own set of fears and
concerns should something happen to his or her significant
other.
Plaintiffs challenge Section 31–11–1–1, which states:
(a) Only a female may marry a male. Only a male may
marry a female. (hereinafter “Section A”)
(b) A marriage between persons of the same gender is void
in Indiana even if the marriage is lawful in the place where
it is solemnized. (hereinafter “Section B”)
In addition, Plaintiffs broadly challenge other Indiana statutes
that have the effect of carrying out the marriage ban.
(hereinafter, collectively, with Section 31–11–1–1, referred
to as “Indiana's marriage laws”). On April 10, 2014, the
court granted a temporary restraining order (Filing No. 51)
prohibiting the Baskin Defendants from enforcing Section
B against Nikole Quasney and Amy Sandler. The parties in
Baskin agreed to fully brief their motions for preliminary
injunction and summary judgments for a combined hearing
held on May 2, 2014. The court granted a preliminary
injunction extending the temporary restraining order. (Filing
No. 65). The court now considers the cross motions for
summary judgment in the three cases.
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B. Indiana's Marriage Laws
*2 In order to marry in the State of Indiana, a couple must
apply for and be issued a marriage license. See Ind.Code §
31–11–4–1. The couple need not be residents of the state.
See Ind.Code § 31–11–4–3. However, the two individuals
must be at least eighteen years of age or meet certain
exceptions. See Ind.Code § 31–11–1–4; Ind.Code § 31–11–
1–5. An application for a marriage license must include
information such as full name, birthplace, residence, age, and
information about each person's parents. See Ind.Code § 31–
11–4–4.
2
The application only has blanks for information
from a male and female applicant. See Marriage License
Application, available at www.in.gov/judiciary/2605.htm. It
is a Class D Felony to provide inaccurate information in
the marriage license or to provide inaccurate information
about one's physical condition.
3
See Ind.Code § 31–11–11–
1; Ind.Code § 31–11–11–3. The clerk may not issue a license
if an individual has been adjudged mentally incompetent or is
under the influence of alcohol or drugs. See Ind.Code § 31–
11–4–11.
The marriage license serves as the legal authority to
solemnize a marriage. See Ind.Code § 31–11–4–14. The
marriage may be solemnized by religious or non-religious
figures. See Ind.Code § 31–11–6–1. If an individual attempts
to solemnize a marriage in violation of Indiana Code Chapter
31–11–1, which includes same-sex marriages, then that
person has committed a Class B Misdemeanor. See Ind.Code
§ 31–11–11–7.
[1] In addition to prohibiting same-sex marriages, Indiana
prohibits bigamous marriages and marriages between
relatives more closely related than second cousins unless they
are first cousins over the age of sixty-five. See Ind.Code § 31–
11–1–2 (cousins); see Ind.Code § 31–11–1–3 (polygamy).
Nevertheless, when evaluating the legality of marriages,
the Indiana Supreme Court found that “the presumption in
favor of matrimony is one of the strongest known to law.”
Teter v. Teter, 101 Ind. 129, 131–32 (Ind.1885). In general,
Indiana recognizes out-of-state marriages that were valid in
the location performed. Bolkovac v. State, 229 Ind. 294, 98
N.E.2d 250, 304 (Ind.1951) ( “[t]he validity of a marriage
depends upon the law of the place where it occurs.”).
II. Summary Judgment Standard
The purpose of summary judgment is to “pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986). Summary judgment is appropriate if the record
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
FED R. CIV. P. 56(a). A genuine issue of material fact exists
if there is sufficient evidence for a reasonable jury to return
a verdict in favor of the non-moving party on the particular
issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
*3 On a motion for summary judgment, the burden rests
with the moving party to demonstrate “that there is an absence
of evidence to support the nonmoving party's case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). After the moving party demonstrates
the absence of a genuine issue for trial, the responsibility
shifts to the non-movant to “go beyond the pleadings” and
point to evidence of a genuine factual dispute precluding
summary judgment. Id. at 322–23. “If the non-movant does
not come forward with evidence that would reasonably permit
the finder of fact to find in her favor on a material question,
then the court must enter summary judgment against her.”
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
Cir.1994) (citing Matsushita Elec. Indus. Co., 475 U.S. at
585–87); see Celotex, 477 U.S. at 322–24; see also Anderson,
477 U.S. at 249–52.
Prior to discussing the merits of the summary judgment
motions, the court must decide several threshold issues.
First, the court must determine whether Defendants Attorney
General Zoeller, Governor Pence, and the Commissioner of
the Indiana State Department of Revenue (“Department of
Revenue Commissioner”) are proper parties, and second,
whether Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34
L.Ed.2d 65 (1972) bars the present lawsuit.
III. Proper Party—Defendants
[2] [3] Under the Eleventh Amendment, a citizen cannot
sue their state in federal court unless the state consents.
However, the Supreme Court created an important exception
to that immunity in Ex Parte Young. 209 U.S. 123, 28
S.Ct. 441, 52 L.Ed. 714 (1908). Under that doctrine, “a
private party can sue a state officer in his or her official
capacity to enjoin prospective action that would violate
federal law.” Ameritech Corp. v. McCann, 297 F.3d 582,
585–86 (7th Cir.2002)(quoting Dean Foods Co. v. Brancel,
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187 F.3d 609, 613 (7th Cir.1999)). Because Plaintiffs seek
an injunction to enjoin actions which violate federal law, Ex
Parte Young applies. The question here rather, is who is a
proper defendant?
[4] The proper defendants are those who bear “ ‘legal
responsibility for the flaws [plaintiffs] perceive in the system’
and not one[s] from whom they ‘could not ask anything ...
that could conceivably help their cause.’ “ Sweeney v.
Daniels, No. 2:12–cv81–PPS/PRC, 2013 WL 209047, * 3
(N.D.Ind.Jan.17, 2013) (quoting Hearne v. Bd. of Educ., 185
F.3d 770, 777 (7th Cir.1999)). Defendants Zoeller, Pence, and
the Department of Revenue Commissioner assert that they
are not the proper parties. For the reasons explained below,
the court agrees with Governor Pence and disagrees with
Attorney General Zoeller and the Department of Revenue
Commissioner.
A. Defendant Zoeller
[5] Defendant Zoeller, sued in Baskin v. Bogan, asserts that
he neither has the authority to enforce nor has any other
role respecting Section 31–11–1–1 as the Attorney General.
However, the Baskin Plaintiffs' complaint broadly challenges
Section 31–11–1–1 and the State's other laws precluding such
marriages, and requests that the court declare Section 31–
11–1–1 “and all other sources of Indiana law that preclude
marriage for same-sex couples or prevent recognition of their
marriages” unconstitutional. (Amended Complaint §§ 3, 80,
Filing No. 30, at ECF p. 2, 26). This relief would encompass
such criminal statutes as listed above in Part I.B.
*4 The Attorney General has the broad authority to assist
in the prosecution of any offense if he decides that it is
in the public interest. See Ind.Code. § 4–6–1–6. Noting
this broad authority, the court has previously found that
the Attorney General is a proper party when challenging
statutes regarding abortion. See Arnold v. Sendak, 416
F.Supp. 22, 23 (S.D.Ind.1976), aff'd, 429 U.S. 476 (1976)
(finding “[t]he Attorney General thus has broad powers
in the enforcement of criminal laws of the state, and is
accordingly a proper defendant.”); see also Gary–Northwest
Indiana Women's Services, Inc. v. Bowen, 496 F.Supp.
894 (N.D.Ind.1980) (attorney general as a party to a law
challenging statute criminalizing abortion). Although Section
31–11–1–1 does not specifically define criminal penalties,
Indiana has criminal provisions in place to prevent individuals
from marrying in violation of it. See Ind.Code §§ 31–11–
11–7; 31–11–11–1; and 31–11–11–13. Because the Attorney
General has broad powers in the enforcement of such criminal
statutes, he has a sufficient connection and role in enforcing
such statutes for purposes of Ex Parte Young. 209 U.S. at 157.
Therefore, the court DENIES the Attorney General's motion
for summary judgment on that ground. (Filing No. 55).
B. Governor Pence
[6] Governor Pence is sued in the Fujii and Lee cases. As
the court found in Love v. Pence, another case challenging
the constitutionality of Section 31–11–1–1, the Governor is
not a proper party because the Plaintiffs' injuries are not fairly
traceable to him and cannot be redressed by him. (Love v.
Pence, No. 4:14–cv–15–RLY–TAB, Filing No. 32 (S.D. Ind.
June 24, 2014). Therefore, the court GRANTS the Governor's
motions for summary judgment (Fujii Filing No. 44) (Lee
Filing No. 41).
C. Commissioner of the Indiana State Department of
Revenue
[7] The Fujii Plaintiffs also brought suit against the
Department of Revenue Commissioner. The Commissioner
claims he is the wrong party because any harms caused by
him do not constitute a concrete injury. The court disagrees
and finds that Plaintiffs have alleged a concrete injury by
having to fill out three federal tax returns in order to file
separate returns for Indiana. See e.g. Harris v. City of Zion,
Lake County, Ill., 927 F.2d 1401, 1406 (7th Cir.1991) (“[a]n
identifiable trifle is enough for standing to fight out a question
of principle; the trifle is the basis for standing and the
principle supplies the motivation.”). The court finds that this
is an identifiable trifle. Therefore, the court DENIES the
Department of Revenue Commissioner's motion for summary
judgment on that ground. (Fujii Filing No. 44).
IV. The Effect of Baker v. Nelson
Defendants argue that this case is barred by Baker v. Nelson.
In Baker, the United States Supreme Court dismissed an
appeal from the Supreme Court of Minnesota for want of a
substantial federal question.409 U.S. at 810. The Supreme
Court of Minnesota held that: (1) the absence of an express
statutory prohibition against same-sex marriages did not
mean same-sex marriages are authorized, and (2) state
authorization of same-sex marriages is not required by the
United States Constitution. Baker v. Nelson, 291 Minn. 310,
191 N.W.2d 185 (Minn.1971), aff'd, 409 U.S. 810, 93 S.Ct.
37, 34 L.Ed.2d 65 (1972).
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*5 The parties agree that the Supreme Court's ruling has
the effect of a ruling on the merits. See Ill. Bd. of Elections
v. Socialist Workers Party, 440 U.S. 173, 182–83, 99 S.Ct.
983, 59 L.Ed.2d 230 (1979) (“a summary disposition affirms
only the judgment of the court below, and no more may
be read into [the] action than was essential to sustain the
judgment.”). Defendants contend that this case raises the
precise issue addressed by Baker and thus binds the court to
find in Defendants' favor. See Hicks v. Miranda, 422 U.S.
332, 344–45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation
omitted) (“the lower courts are bound ... until such time as the
[Supreme] Court tells them that they are not.”).
The court agrees that the issue of whether same-sex couples
may be constitutionally prohibited from marrying is the
exact issue presented in Baker. Nevertheless, the Supreme
Court created an important exception that “when doctrinal
developments indicate,” lower courts need not adhere to the
summary disposition. Id. Plaintiffs argue that three decisions
in particular are such developments: Romer v. Evans, 517
U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), Lawrence
v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508
(2003), and United States v. Windsor, ––– U.S. ––––, 133
S.Ct. 2675, 186 L.Ed.2d 808 (2013), and thus, the court no
longer must adhere to Baker.
The Supreme Court decided Baker at a different time in
the country's equal protection jurisprudence. The following
are examples of the jurisprudence at and around the time
of Baker. The Court struck down a law for discriminating
on the basis of gender for the first time only one year
before Baker. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251,
30 L.Ed.2d 225 (1971). Moreover, at the time Baker was
decided, the Court had not yet recognized gender as a quasi-
suspect classification.Regarding homosexuality, merely four
years after Baker, the Supreme Court granted a summary
affirmance in a case challenging the constitutionality of
the criminalization of sodomy for homosexuals. Doe v.
Commonwealth's Attorney for City of Richmond, 425 U.S.
901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). Thus, the
Supreme Court upheld the district court's finding that “[i]t
is enough for upholding the legislation that the conduct is
likely to end in a contribution to moral delinquency.” Doe v.
Commonwealth's Attorney for City of Richmond, 403 F.Supp.
1199, 1202 (E.D.Va.1975), aff'd 425 U.S. 901, 96 S.Ct. 1489,
47 L.Ed.2d 751 (1976). Nine years later in 1985, the Eleventh
Circuit found that particular summary affirmance was no
longer binding. Hardwick v. Bowers, 760 F.2d 1202 (11th
Cir.1985), rev'd 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d
140 (1986). However, on review, the Supreme Court held
that states were permitted to criminalize private, consensual
sex between adults of the same-sex based merely on moral
disapproval. See Bowers v. Hardwick, 478 U.S. 186, 106
S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence,
539 U.S. at 578. For ten more years, states were free to
legislate against homosexuals based merely on the majority's
disapproval of such conduct.
Then in 1996, the Supreme Court decided Romer—the
first case that clearly shows a change in direction away
from Baker. The Court held that an amendment to the
Colorado Constitution, specifically depriving homosexual
persons from the protection of anti-discrimination measures,
violated the Equal Protection Clause. Romer, 517 U.S. at 635.
The next change occurred in 2003 with Lawrence when the
Supreme Court overruled Bowers, finding that the promotion
of morality is not a legitimate state interest under the Equal
Protection Clause and the state may not criminalize sodomy
between individuals of the same sex. Lawrence, 539 U.S. at
582.
*6 Finally, in the last year even more has changed in the
Supreme Court's jurisprudence shedding any doubt regarding
the effect of Baker. The Supreme Court granted certiorari for
two cases involving the constitutionality of laws adversely
affecting individuals based on sexual orientation.First, in
United States v. Windsor, the Supreme Court invalidated
Section 3 of The Defense of Marriage Act (“DOMA”), which
defined marriage for purposes of federal law as “only a
legal union between one man and one woman.” 133 S.Ct.
at 2694 (quoting 1 U.S.C. § 7). The Court noted that the
differentiation within a state caused by DOMA “demeans
the couple, whose moral and sexual choices the Constitution
protects.” Windsor, 133 S.Ct. at 2694. Additionally, the
Court found that the purpose of DOMA “is to ensure that
if any State decides to recognize same-sex marriages, those
unions will be treated as second-class marriages.” Id. at
2693. Second, the Supreme Court dismissed an appeal of
California's prohibition on same-sex marriages, not because
Baker rendered the question insubstantial, but because the
law's supporters lacked standing to defend it. Hollingsworth
v. Perry, 133 S.Ct. 6252 (2013). These developments strongly
suggest, if not compel, the conclusion that Baker is no longer
controlling and does not bar the present challenge to Indiana's
laws. See Windsor v. United States, 699 F.3d 169, 178 (2d
Cir.2012), aff'd, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d
808 (2013) (holding that Baker was not controlling as to
the constitutionality of DOMA, reasoning that “[i]n the forty
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years after Baker, there have been manifold changes to the
Supreme Court's equal protection jurisprudence” and that
“[e]ven if Baker might have had resonance ... in 1971, it does
not today”).
The court acknowledges that this conclusion is shared with
all other district courts that have considered the issue post
—Windsor. See Wolf v. Walker, No. 3:14–cv–00064–bbc,
2014 WL 2558444, –––– 3–6 (W.D. Wisc. June 6, 2014);
Whitewood v. Wolf, No. 1:13–cv–1861, 2014 WL 2058105,
–––– 4–6 (M.D.Penn.May 20, 2014); Geiger v. Kitzhaber,
No. 6:13–cv–01834–MC, 2014 WL 2054264, *1 n .1 (D.Or.
May 19, 2014); Latta v. Otter, 1:13–cv–482–CWD, 2014
WL 1909999, –––– 7–10 (D.Idaho May 13, 2013); DeBoer
v. Snyder, 973 F.Supp.2d 757, 773 n. 6 (E.D.Mich.2014);
DeLeon v. Perry, 975 F.Supp.2d 632, 648 (W.D.Tex.2014)
(order granting preliminary injunction); Bostic v. Rainey, 970
F.Supp.2d 456, 469–70 (E.D.Va.2014); Bishop v. U.S. ex
rel. Holder, 962 F.Supp.2d 1252, 1274–77 (N.D.Okla.2014);
McGee v. Cole, No. 3:13–cv24068, 2014 WL 321122, ––––
8–10 (S.D.W.Va.Jan.29, 2014); Kitchen v. Herbert, 961
F.Supp.2d 1181, 1195 (D.Utah 2013). Finding that Baker
does not bar the present action, the court turns to the merits
of Plaintiffs' claims.
V. Right to Marry Whom?
[8] As the court has recognized before, marriage and
domestic relations are traditionally left to the states; however,
the restrictions put in place by the state must comply with the
United States Constitution's guarantees of equal protection of
the laws and due process. See Windsor, 133 S.Ct. at 2691
(citing Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18
L.Ed.2d 1010 (1967)). Plaintiffs assert that Indiana's marriage
laws violate those guarantees.
A. Due Process Clause
1. Fundamental Right
*7 [9] [10] The Due Process Clause of the Fourteenth
Amendment guarantees that no state shall “deprive any
person of life, liberty, or property without the due process of
law.” U.S. Const. amend. XIV § 1. The purpose of the Due
Process Clause is to “protect[ ] 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. Glucksburg, 521 U.S. 702, 720–21
(1997) (quotations and citations omitted). Because such rights
are so important, “an individual's fundamental rights may not
be submitted to vote.” DeLeon, 975 F.Supp.2d at 657 (citing
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638,
63 S.Ct. 1178, 87 L.Ed. 1628 (1943)). Plaintiffs assert that
the State of Indiana impedes upon their fundamental right to
marry, and thus, violates the Due Process Clause.
[11] The parties agree that a fundamental right to marry
exists; however they dispute the scope of that right. The
fact that the right to marry is a fundamental right, although
not explicitly stated by the Supreme Court, can hardly be
disputed. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384, 98
S.Ct. 673, 54 L.Ed.2d 618 (1978) (“[D]ecisions of this Court
confirm that the right to marry is of fundamental importance
for all individuals.”); United States v. Kras, 409 U.S. 434,
446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (concluding the
Court has come to regard marriage as fundamental); Loving,
388 U.S. at 12 (“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.”); Skinner v.
Okla. ex. rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86
L.Ed. 1655 (1942) (noting marriage is one of the basic civil
rights of man fundamental to our existence and survival);
Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed.
654 (1888) (characterizing marriage as “the most important
relation in life” and as “the foundation of the family and
society, without which there would be neither civilization
nor progress.”). Additionally, the parties agree that the right
to marry necessarily entails the right to marry the person of
one's choice. See Lawrence, 539 U.S. at 574 (2003) (“Our
laws and tradition afford constitutional protection to personal
decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education.”).
[12] Defendants, relying on Glucksberg, argue that the
fundamental right to marry should be limited to its traditional
definition of one man and one woman because fundamental
rights are based in history. The concept of same-sex marriage
is not deeply rooted in history; thus, according to Defendants,
the Plaintiffs are asking the court to recognize a new
fundamental right. Plaintiffs counter that Defendants' reliance
on Glucksberg is mistaken because the Supreme Court has
repeatedly defined the fundamental right to marry in broad
terms.
[13] The court agrees with Plaintiffs. “Fundamental rights,
once recognized, cannot be denied to particular groups on
the ground that these groups have historically been denied
those rights.” In re Marriage Cases, 43 Cal.4th 757, 76
Cal.Rptr.3d 683, 183 P.3d 384, 430 (Cal.2008) (superseded
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by constitutional amendment). In fact, “the history of our
Constitution ... is the story of the extension of constitutional
rights and protections to people once ignored or excluded.”
United States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264,
135 L.Ed.2d 735 (1996). The reasoning in Henry v. Himes is
particularly persuasive on this point:
*8 The Supreme Court has
consistently refused to narrow the
scope of the fundamental right to
marry by reframing a plaintiff's
asserted right to marry as a more
limited right that is about the
characteristics of the couple seeking
marriage ... [T]he Court consistently
describes a general ‘fundamental
right to marry’ rather than ‘the
right to interracial marriage,’ ‘the
right to inmate marriage,’ or ‘the
right of people owing child support
to marry.’
No. 1: 14–cv129, 2014 WL 1418395, *7 (S.D.Ohio Apr.14,
2014) (emphasis added) (citing Loving, 388 U.S. at 12;
Turner v. Safley, 482 U.S. 78, 94–96, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987); Zablocki, 434 U.S. at 383–86).
The court finds Loving v. Virginia best illustrates that concept.
In that case, the Court held that Virginia's ban on interracial
marriage violated the plaintiffs' rights under the Due Process
Clause. 388 U.S. at 12. The Loving Court stated “[t]he
freedom to marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness
by free men,” and further recognized that, “marriage is one
of the ‘basic civil rights of man.’ “ Id. If the Court in Loving
had looked only to the “traditional” approach to marriage
prior to 1967, the Court would not have recognized that there
was a fundamental right for Mildred and Richard Loving
to be married, because the nation's history was replete with
statutes banning interracial marriages between Caucasians
and African Americans. Notably, the Court did not frame the
issue of interracial marriage as a “new” right, but recognized
the fundamental right to marry regardless of that “traditional”
classification.
Unfortunately, the courts have failed to recognize the breadth
of our Due Process rights before in cases such as Bowers. 478
U.S. at 186, overruled by Lawrence, 539 U.S. at 578. There,
the court narrowly framed the issue as “whether the Federal
Constitution confers a fundamental right upon homosexuals
to engage in sodomy....” Id. at 190. Not surprisingly, with
the issue framed so narrowly and applying only to a small
classification of people, the Court found that there was no
fundamental right at issue because our history and tradition
proscribed such conduct. Id. at 192–94. In 2003, the Supreme
Court recognized its error and reversed course. Lawrence,
539 U.S. at 567 (finding that the Bowers Court's statement
of the issue “discloses the Court's own failure to appreciate
the extent of the liberty interest at stake.”). The court found
that the sodomy laws violated plaintiffs' Due Process right to
engage in such conduct and intruded into “the personal and
private life of the individual.” Id. at 578. Notably, the Court
did not limit the right to a classification of certain people who
had historical access to that right.
Here, Plaintiffs are not asking the court to recognize a
new right; but rather, “[t]hey seek ‘simply the same right
that is currently enjoyed by heterosexual individuals: the
right to make a public commitment to form an exclusive
relationship and create a family with a partner with whom
the person shares an intimate and sustaining emotional
bond.’ “ Bostic, 970 F.Supp.2d at 472 (quoting Kitchen, 961
F.Supp.2d at 1202–03). The courts have routinely protected
the choices and circumstances defining sexuality, family,
marriage, and procreation.As the Supreme Court found in
Windsor, “[m]arriage is more than a routine classification
for purposes of certain statutory benefits,” and “[p]rivate,
consensual intimacy between two adult persons of the same
sex ... can form ‘but one element in a personal bond that
is more enduring.’ “ Windsor, 133 S.Ct. at 2693 (quoting
Lawrence, 539 U.S. at 567). The court concludes that the right
to marry should not be interpreted as narrowly as Defendants
urge, but rather encompasses the ability of same-sex couples
to marry.
2. Level of Scrutiny
*9 [14] [15] [16] [17] The level of scrutiny describes
how in depth the court must review the Defendants'
proffered reasons for a law. Scrutiny ranges from rational
basis (the most deferential to the State) to strict scrutiny
(the least deferential to the State). Defendants agree that
if the court finds that the fundamental right to marry
encompasses same-sex marriages, then heightened scrutiny
is appropriate. (Transcript 40:9–17). “When a statutory
classification significantly interferes with the exercise of a
fundamental right, it cannot be upheld unless it is supported
by sufficiently important state interests and is closely tailored
to effectuate only those interests.” Zablocki, 434 U.S. at 388.
Strict scrutiny requires the government to show that the law
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is narrowly tailored to a compelling government interest. See
id. The burden to show the constitutionality of the law rests
with the Defendants. See id.
[18] [19] For strict scrutiny to be appropriate, the court
must find: (1) there is a fundamental right, and (2) the
classification significantly interferes with the exercise of that
right. Id. First, as stated above, the court finds that the
fundamental right to marry includes the right of the individual
to marry a person of the same sex. Second, Section 31–11–1–
1 significantly interferes with that right because it completely
bans the Plaintiffs from marrying that one person of their
choosing. Therefore, Indiana's marriage laws are subject to
strict scrutiny. See Bostic, 970 F.Supp.2d at 473.
3. Application
[20] Section 31–11–1–1, classifying same-sex couples,
“cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to effectuate
only those interests .” Zablocki, 434 U.S. at 388. Here,
Defendants proffer that the state's interest in conferring the
special benefit of civil marriage to only one man and one
woman is justified by its interest in encouraging the couple to
stay together for the sake of any unintended children that their
sexual union may create. The court does not weigh whether
or not this is a sufficiently important interest, but will assume
that it is.
Defendants have failed to show that the law is “closely
tailored” to that interest. Indiana's marriage laws are both
over—and under-inclusive. The marriage laws are under-
inclusive because they only prevent one subset of couples,
those who cannot naturally conceive children, from marrying.
For example, the State's laws do not consider those post-
menopausal women, infertile couples, or couples that do
not wish to have children.Additionally, Indiana specifically
allows first cousins to marry once they reach the age that
procreation is not a realistic possibility. See Ind.Code §
31–11–1–2. On the other hand, Indiana's marriage laws
are over-inclusive in that they prohibit some opposite-sex
couples, who can naturally and unintentionally procreate,
from marriage. For example, relatives closer in degree than
second cousins can naturally and unintentionally procreate;
however, they still may not marry.
4
Most importantly,
excluding same-sex couples from marriage has absolutely no
effect on opposite-sex couples, whether they will procreate,
and whether such couples will stay together if they do
procreate. Therefore, the law is not closely tailored, and the
Defendants have failed to meet their burden.
*10 The state, by excluding same-sex couples from
marriage, violates Plaintiffs' fundamental right to marry under
the Due Process Clause. See Wolf, 2014 WL 2558444, at
* 21; Lee v. Orr, No. 1:13–cv–08719, 2014 WL 683680,
* 2 (N.D.Ill. Feb.21, 2014) (“This Court has no trepidation
that marriage is a fundamental right to be equally enjoyed
by all individuals of consenting age regardless of their
race, religion, or sexual orientation.”); Whitewood, 2014 WL
2058105 at –––– 8–9; Latta, 2014 WL 1909999 at* 13;
DeLeon, 975 F.Supp.2d at 659; Bostic, 970 F.Supp.2d at 483;
Kitchen, 961 F.Supp.2d at 1204.
B. Equal Protection Clause
[21] Plaintiffs also argue that Section 31–11–1–1 violates
the Fourteenth Amendment's Equal Protection Clause. The
Equal Protection Clause “commands that no State shall ‘deny
to any person within its jurisdiction the equal protection of
the laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985) (quoting U.S. Const., amend.
XIV., § 1). The clause must take into account the fact that
governments must draw lines between people and groups. See
Romer, 517 U.S. at 631.
1. Level of Scrutiny
[22] [23] [24] [25] “[I]f a law neither burdens a
fundamental right nor targets a suspect class, [the court] will
uphold the legislative classification so long as it bears a
rational relation to some legitimate end.” Romer, 517 U.S. at
631. The court must “insist on knowing the relation between
the classification adopted and the object to be attained.” Id. at
632. This is to ensure that the classification was not enacted
for the purpose of disadvantaging the group burdened by
the law. See id. at 633. If a law “impermissibly interferes
with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class” then the court
applies strict scrutiny. See Zablocki, 434 U.S. at 383. To
survive strict scrutiny, Indiana must show that the law is
narrowly tailored to a compelling government interest. See id.
at 388. As indicated in Part V.A. above, the court finds that the
law impermissibly interferes with a fundamental right, and
Defendants failed to satisfy strict scrutiny. Nevertheless, the
court will evaluate the Equal Protection claim independent
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from that conclusion and as an alternative reason to find the
marriage law unconstitutional.
a. Form of Discrimination
Plaintiffs argue that Indiana's marriage laws discriminate
against individuals on the basis of gender and sexual
orientation.
i. Gender
[26] According to Plaintiffs, Indiana's marriage laws
discriminate against them based on their gender. For example,
if Rae Baskin was a man she would be allowed to marry
Esther Fuller; however, because she is a female, she cannot
marry Esther. Additionally, Plaintiffs allege the law enforces
sex stereotypes, requiring men and women to adhere to
traditional marital roles. See e.g., J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
Defendants respond that the laws do not discriminate on
the basis of gender because the laws do not affect any
gender disproportionately. Plaintiffs respond that a mere
equal application of the law was rejected by the Court in
Loving.
*11 The court is not persuaded by Plaintiffs' arguments
and finds Loving to be distinguishable on this point. Unlike
Loving, where the court found evidence of an invidious racial
discrimination, the court finds no evidence of an invidious
gender-based discrimination here. See Geiger, 2014 WL
2054264 at * 7. Moreover, there is no evidence that the
purpose of the marriage laws is to ratify a stereotype about the
relative abilities of men and women or to impose traditional
gender roles on individuals. See id.; see also Bishop, 962
F.Supp.2d at 1286.
ii. Sexual Orientation
[27] Plaintiffs also argue that Indiana's marriage laws
classify individuals based on their sexual orientation, because
they prevent all same-sex couples from marrying the person
of their choice. Defendants respond that the marriage laws
do not discriminate against same-sex couples because they
may marry just like opposite-sex couples may marry; the
law merely impacts them differently. The court rejects this
notion.As the court stated above, the right to marry is
about the ability to form a partnership, hopefully lasting
a lifetime, with that one special person of your choosing.
Additionally, although Indiana previously defined marriage
in this manner, the title of Section 31–11–1–1—“Same
sex marriages prohibited”—makes clear that the law was
reaffirmed in 1997 not to define marriage but to prohibit gays
and lesbians from marrying the individual of their choice.
Thus, the court finds that Indiana's marriage laws discriminate
based on sexual orientation.
b. Level of Scrutiny
The Seventh Circuit applies rational basis review in cases of
discrimination based on sexual orientation. See Schroeder v.
Hamilton Sch. Dist., 282 F.3d 946, 950–51 (7th Cir.2002)
(“Homosexuals are not entitled to any heightened protection
under the Constitution.”). The Seventh Circuit relied on
Bowers and Romer for this conclusion. Plaintiffs argue that
since Bowers has since been overruled, the court is no longer
bound by Schroeder. The court disagrees and believes it
is bound to apply rational basis because one of the cases
the Court relied on in Schroeder, e.g. Romer, is still valid
law. The court agrees with Plaintiffs that it is likely time to
reconsider this issue, especially in light of the Ninth Circuit's
decision in SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 471, 481 (9th Cir.2014) (interpreting Windsor to mean
that gay and lesbian persons constitute a suspect class).
However, the court will leave that decision to the Seventh
Circuit, where this case will surely be headed. The court will,
therefore, apply rational basis review.
c. Application
[28] Defendants rely on Johnson v. Robison for the
proposition that “when ... the inclusion of one group
promotes a legitimate governmental purpose, and the addition
of other groups would not, we cannot say that the
statute's classification of beneficiaries and nonbeneficiaries
is invidiously discriminatory.” 415 U.S. 361, 383, 94 S.Ct.
1160, 39 L.Ed.2d 389 (1974). According to Defendants,
Johnson means that they must only show that there is a
rational reason to provide the right of marriage to opposite-
sex couples, not that there is a rational basis to exclude.
In essence, Defendants assert that the opposite-sex couples
have distinguishing characteristics, the ability to naturally and
unintentionally procreate as a couple, that allow the State to
treat them differently from same-sex couples.
*12 Plaintiffs, on the other hand, allege that the primary
purpose of the statute is to exclude same-sex couples from
marrying and thus the Defendants must show a rational basis
to exclude them. The court agrees with Plaintiffs. According
to Plaintiffs, the purpose is evident by the timing of the statute,
which was passed in an emergency session near the time that
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DOMA was passed and immediately after and in response to
a Hawaiian court's pronouncement in Baehr v. Miike, CIV.
No. 91–1394, 1996 WL 694235 (Haw.Cir.Ct. Dec. 3, 1996),
aff'd 87 Hawai‘i 34, 950 P.2d 1234 (Haw.1997), that same-
sex couples should be allowed to marry. See Family Law—
Marriage—Same Sex Marriages Void, 1997 Ind. Legis. Serv.
P.L. 198–1997 (H.E.A.1265). Because the effect of the law is
to exclude and void same-sex marriages, the Plaintiffs argue
that the court should analyze whether there is a rational basis
to exclude same-sex marriages. Additionally, Plaintiffs assert
they are similar in all relevant aspects to opposite-sex couples
seeking to marry—they are in long-term, committed, loving
relationships and some have children.
[29] The Johnson case concerned a challenge brought by
a conscientious objector seeking to declare the educational
benefits under the Veterans' Readjustment Benefits Act of
1966 unconstitutional on Equal Protection grounds. 415 U.S.
at 364. In reviewing whether or not the classification was
arbitrary, the Court looked to the purpose of that Act and
found that the legislative objective was to (1) make serving
in the Armed Forces more attractive and (2) assist those who
served on active duty in the Armed Forces in “readjusting”
to civilian life. See id. at 376–377. The Court found that
conscientious objectors were excluded from the benefits that
were offered to the veterans because the benefits could not
make service more attractive to a conscientious objector and
the need to readjust was absent. See id. The Supreme Court
found that the two groups were not similarly situated and thus,
Congress was justified in making that classification. See id.
at 382–83.
The court agrees with Plaintiffs that they are similarly
situated in all relevant aspects to opposite-sex couples for
the purposes of marriage. Also of great importance is the
fact that unlike the statute at issue in Johnson, “[m]arriage
is more than a routine classification for purposes of certain
statutory benefits.” Windsor, 133 S.Ct. at 2693. In fact
having the status of “married” comes with hundreds of rights
and responsibilities under Indiana and federal law. See 614
Reasons Why Marriage Equality Matters in Indiana, Fujii,
Filing No. 46–2). As the court in Kitchen stated in analyzing
the Equal Protection claim before it:
[T]he State poses the wrong
question.The court's focus is not on
whether extending marriage benefits
to heterosexual couples serves a
legitimate governmental interest. No
one disputes that marriage benefits
serve not just legitimate, but
compelling governmental interests,
which is why the Constitution provides
such protection to an individual's
fundamental right to marry. Instead,
courts are required to determine
whether there is a rational connection
between the challenged statute and
a legitimate state interest. Here, the
challenged statute does not grant
marriage benefits to opposite-sex
couples.
5
The effect of [Utah's
marriage ban] is only to disallow
same-sex couples from gaining access
to these benefits. The court must
therefore analyze whether the State's
interests in responsible procreation
and optimal child-rearing are furthered
by prohibiting same-sex couples from
marrying.
*13 961 F.Supp.2d at 1210–11 (reference and footnote
added). Like Utah's laws, the effect of Indiana's marriage
laws is to exclude certain people from marrying that one
special person of their choosing. This is evident by the title
of Section 31–11–1–1—“Same sex marriages prohibited.”
Consequently, the question is whether it is rational to
treat same-sex couples differently by excluding them from
marriage and the hundreds of rights that come along with that
marriage. See e.g. City of Cleburne, Tex., 473 U.S. at 449.
The court finds that there is no rational basis to exclude
same-sex couples. The purpose of marriage—to keep the
couple together for the sake of their children—is served by
marriage regardless of the sexes of the spouses. In order
to fit under Johnson's rationale, Defendants point to the
one extremely limited difference between opposite-sex and
same-sex couples, the ability of the couple to naturally
and unintentionally procreate, as justification to deny same-
sex couples a vast array of rights. The connection between
these rights and responsibilities and the ability to conceive
unintentionally is too attenuated to support such a broad
prohibition. See Romer, 517 U.S. at 635. Furthermore,
the exclusion has no effect on opposite-sex couples and
whether they have children or stay together for those
children.Defendants proffer no reason why excluding same-
sex couples from marriage benefits opposite-sex couples.
The court concludes that there simply is no rational link
between the two. See Tanco, 2014 WL 997525 at * 6; see
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© 2014 Thomson Reuters. No claim to original U.S. Government Works. 11
also Bishop, 962 F.Supp.2d at 1290–93 (finding there is
no rational link between excluding same-sex marriages and
“steering ‘naturally procreative’ relationships into marriage,
in order to reduce the number of children born out of wedlock
and reduce economic burdens on the State); see also DeBoer,
973 F.Supp.2d at 771–72 (noting that prohibiting same-sex
marriages “does not stop [gay men and lesbian women] from
forming families and raising children.Nor does prohibiting
same-sex marriage increase the number of heterosexual
marriages or the number of children raised by heterosexual
parents.”).
VI. Recognition of Out-of-state Marriages
Defendants concede that whether Indiana can refuse to
recognize out-of-state, same-sex marriages turns entirely on
whether Indiana may enforce Section A. Because the court
finds that Indiana may not exclude same-sex couples from
marriage, the court also finds it cannot refuse to recognize
out-of-state, same-sex marriages. See e .g. Loving, 388 U.S. at
4, 11. Nevertheless, the court finds that Section B violates the
Equal Protection Clause independent of its decision regarding
Section A.
[30] The parties agree that out-of-state, same-sex marriages
are treated differently than out-of-state, opposite-sex
marriages. Thus, the question is whether that difference
violates the Equal Protection Clause. In Windsor, the
Supreme Court concluded that by treating same-sex married
couples differently than opposite-sex married couples,
Section 3 of DOMA “violate[d] basic due process and equal
protection principles applicable to the Federal Government .”
133 S.Ct. at 2693. The Eastern District of Kentucky found
two guiding principles from Windsor that strongly suggest the
result here. See Bourke v. Beshear, No. 3:13–cv–750–H, 2014
WL 556729, * 7 (W.D. Ky. Feb 12, 2014). First, the court
should look to the actual purpose of the law. Id. The second
principle is that such a law “demeans the couple, whose moral
and sexual choices the Constitution protects.” Id. (quoting
Windsor, 133 S.Ct. at 2694).
*14 The purpose of the law is to prevent the recognition
of same-sex marriage in Indiana, which Plaintiffs assert was
motivated by animus. If Section 31–11–1–1 was in fact
motivated by animus, it violates the principles of the Equal
Protection Clause. See Romer, 517 U.S. at 633–35 (“[I]f the
constitutional conception of ‘equal protection of the laws'
means anything, it must at the very least mean that a bare ...
desire to harm a politically unpopular group cannot constitute
a legitimate state interest.”) (emphasis in original) (quoting
Dep't of Agriculture v. Moreno, 413 U.S. 528, 534, 93
S.Ct. 2821, 37 L.Ed.2d 782 (1973)). Section 31–11–1–1, like
DOMA, was passed during the time that Hawaii courts were
deciding whether the United States Constitution required it
to allow same-sex marriages. According to the bill's author,
his “intent [was] to clarify present Indiana law and strengthen
it.” Barb Albert, Same-sex Marriage Takes Hit in Senate,
Indianapolis Star, Feb. 11, 1997, at B2. He did not see the
statute as denying rights, because he considered marriage to
be a privilege, rather than a right. Id. Opponents of the bill
saw it as “inflaming the biases and prejudices of individuals,”
“thumbing your nose” at the Constitution, and “legislat[ing]
hate.” Id.; see also Stuart A. Hirsch, Ban on Gay Marriages
to go to Governor, Indianapolis Star, Apr. 26, 1997, at B 1.
Additionally, Section 31–11–1–1 is an unusual law for
Indiana to pass. As described above, in Indiana “[t]he validity
of a marriage depends upon the law of the place where it
occurs.” This includes recognizing marriages between first
cousins despite the fact that they cannot marry in Indiana
unless they are over 65 years of age. See Mason v. Mason,
775 N.E.2d 706, 709 (Ind.Ct.App.2002). The State of Indiana
chose one group to single out for disparate treatment. The
State's laws place same-sex marriages in a second class
category, unlike other marriages performed in other states.
Thus, like the Supreme Court in Windsor, this court can
conclude that this law is motivated by animus, thus violating
the Equal Protection Clause.
Even if it were not, the law fails rational basis review.
Defendants proffer that the state refuses to recognize same-
sex marriages because it conflicts with the State's philosophy
of marriage—that is that marriage is to ameliorate the
consequences of unintended children.Recognizing the valid
same-sex marriages performed in other states, however, has
no link whatsoever to whether opposite-sex couples have
children or stay together for those children.Thus, there is
no rational basis to refuse recognition and void out-of-state,
same-sex marriages. Therefore, Part B violates the Fourteenth
Amendment's Equal Protection Clause. See Tanco v. Haslem,
No. 3:13–cv–01159, 2014 WL 997525 (M.D.Tenn.Mar.14,
2014); see also Bourke, 2014 WL 556729.
VII. Conclusion
The court has never witnessed a phenomenon throughout the
federal court system as is presented with this issue. In less
than a year, every federal district court to consider the issue
has reached the same conclusion in thoughtful and thorough
opinions—laws prohibiting the celebration and recognition
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of same-sex marriages are unconstitutional. It is clear that
the fundamental right to marry shall not be deprived to some
individuals based solely on the person they choose to love.
In time, Americans will look at the marriage of couples such
as Plaintiffs, and refer to it simply as a marriage—not a
same-sex marriage. These couples, when gender and sexual
orientation are taken away, are in all respects like the family
down the street. The Constitution demands that we treat them
as such. Today, the “injustice that [we] had not earlier known
or understood” ends. Windsor, 133 S.Ct. at 2689 (citing
Marriage Equality Act, 2011 N.Y. Laws 749). Because “[a]s
the Constitution endures, persons in every generation can
invoke its principles in their own search for greater freedom.”
Lawrence, 539 U.S. at 579.
*15 Therefore, the court finds as follows:
1. The Baskin Plaintiffs' motion for summary judgment
(No. 1:14–cv–355, Filing No. 38) is GRANTED;
2. The Baskin Defendants' motion for summary judgment
(No. 1:14–cv–355, Filing No. 55) is DENIED;
3. The Baskin Plaintiffs' motion to consolidate preliminary
injunction proceedings with final trial on the merits (No.
1:14–cv–355, Filing No. 37) and the Baskin Defendants'
motion for stay of the preliminary injunction (No. 1:14–
cv–355, Filing No. 68) are DENIED as moot.
4. The Fujii Plaintiffs' motion for summary judgment (No.
1:14–cv–404, Filing No. 33) is GRANTED in part for
all Defendants except Governor Pence and DENIED in
part as to Governor Pence;
5. The Fujii Defendants' motion for summary judgment
(No. 1:14–cv–404, Filing No. 44) is GRANTED in part
for Governor Pence and DENIED in part for the other
Defendants;
6. The Fujii Plaintiffs' motion for preliminary injunction
(No. 1:14–cv–404, Filing No. 23) and motion to
consolidate preliminary injunction proceedings with
final trial on the merits (No. 1:14–cv–404, Filing No. 24)
are DENIED as moot.
7. The Lee Plaintiffs' motion for summary judgment (No.
1:14–cv–406, Filing No. 27) is GRANTED in part for
all Defendants except Governor Pence and DENIED in
part as to Governor Pence;
8. The Lee Defendants' motion for summary judgment (No.
1:14–cv–406, Filing No. 41) is GRANTED in part for
Governor Pence and DENIED in part for the other
Defendants;
9. The Lee Plaintiffs' motion for preliminary injunction
(No. 1:14–cv–406, Filing No. 29), motion to consolidate
preliminary injunction proceedings with final trial on the
merits (No. 1:14–cv–406, Filing No. 31), and the Lee
Defendants' motion for extension of time (No. 1:14–cv–
406, Filing No. 53) are DENIED as moot.
ORDER
Pursuant to the reasoning contained above, the court
DECLARES that Indiana Code § 31–11–1–1(a), both
facially and as applied to Plaintiffs, violates the Fourteenth
Amendment's Due Process Clause and Equal Protection
Clause. Additionally, the court DECLARES that Indiana
Code § 31–11–1–1(b), both facially and as applied to
Plaintiffs, violates the Fourteenth Amendment's Equal
Protection Clause. Because this is a facial challenge, same-
sex couples, who would otherwise qualify to marry in Indiana,
have the right to marry in Indiana.
Having found that Indiana Code § 31–11–1–1 and the
laws in place enforcing such violate the Plaintiffs' rights
under the Due Process Clause and the Equal Protection
Clause, Defendants and their officers, agents, servants,
employees and attorneys, and those acting in concert with
them are PERMANENTLY ENJOINED from enforcing
Indiana Code Section 31–11–1–1 and other Indiana laws
preventing the celebration or recognition of same-sex
marriages. Additionally, Defendants and officers, agents,
servants, employees and attorneys, and those acting in
concert with them, are PERMANENTLY ENJOINED from
enforcing or applying any other state or local law, rule,
regulation or ordinance as the basis to deny marriage to same-
sex couples otherwise qualified to marry in Indiana, or to
deny married same-sex couples any of the rights, benefits,
privileges, obligations, responsibilities, and immunities that
accompany marriage in Indiana.
*16 Specifically, this permanent injunction requires the
following, and the court ORDERS the following:
1. The Defendant Clerks, their officers, agents, servants,
employees and attorneys, and all those acting in concert
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with them, are PERMANENTLY ENJOINED from
denying a marriage license to a couple because both
applicants for the license are the same sex. Thus they
must act pursuant to their authority under Indiana Code
Chapter 31–11–4 and issue marriage licenses to couples
who, but for their sex, satisfy all the requirements to
marry under Indiana law;
2. The Attorney General, Greg Zoeller, his officers, agents,
servants, employees and attorneys, and all those acting in
concert with them, are PERMANENTLY ENJOINED
from prosecuting or assisting in the prosecution, using
his authority from Indiana Code § 4–6–1–6, of the
following:
a. same-sex couples who fill out the current marriage
license application where the spaces provided only allow
for a male and female (Ind.Code §§ 31–11–11–1 and 31–
11–11–3),
b. clerks who grant the marriage licenses to qualified same-
sex couples (Ind.Code § 31–11–11–4), or
c. those who choose to solemnize same-sex marriages
(Ind.Code §§ 31–11–11–5 and 31–11–11–7).
3. William C. Vanness II, M.D., the Commissioner of the
Indiana State Department of Health, his officers, agents,
servants, employees and attorneys, and all those acting in
concert with them, are PERMANENTLY ENJOINED
to:
a. Act pursuant to their authority under Indiana Code § 16–
37–1 to change the death certificate form to allow for
same-sex spouses,
b. Act pursuant to their authority under Indiana Code § 16–
37–3 to issue death certificates listing same-sex spouses,
and
c. Act pursuant to their authority under Indiana Code §
31–11–4–4 to revise the marriage license application to
allow for same-sex applicants.
4. The Commissioner of the Indiana State Department of
Revenue, his officers, agents, servants, employees and
attorneys, and all those acting in concert with them,
are PERMANENTLY ENJOINED to exercise their
authority under Indiana Code § 6–8.1–3 to revise the
filing guidelines to allow and process joint tax returns
for same-sex married couples as they do for opposite-
sex married couples.
5. The Board of Trustees of the Indiana Public Retirement
System and Steve Russo, the Executive Director of the
Indiana Public Retirement System, and their officers,
agents, servants, employees and attorneys, and all those
acting in concert with them, are PERMANENTLY
ENJOINED to administer the Pension Fund pursuant
to Indiana Code Chapters 5–10.5–3, 5–10.5–4, and 5–
10.5–6, so as to provide the same benefits for all married
couples, regardless of whether the couples are of the
opposite sex or the same sex.
This Order does not apply to Governor Pence, who the court
found was not a proper party. This Order takes effect on the
25th day of June 2014.
SO ORDERED.
1
Filing Numbers will refer to those documents in Baskin
v. Bogan unless stated otherwise.
2
The State Department of Health is charged under
Ind.Code § 31–11–4–4(c) with developing a uniform
application for marriage licenses.
3
In an official opinion concerning the authority of
clerks to issue marriage licenses and only referencing
one occasion where they cannot -same-sex marriages,
the Attorney General appeared to consider inaccurate
physical information to include gender. See 2004 Ind.
Op. Att'y Gen.No. 4 (Apr. 29, 2004). The Attorney
General noted that a clerk can be charged with a
misdemeanor for issuing a marriage license knowing
the information concerning the physical condition of the
applicant is false. See id.
4
The court does not evaluate the constitutionality of
such laws, but merely uses this example to show that
the present law would be over-inclusive in regard to
Defendants' stated reason for marriage.
5
Section 30–1–4.1 of the Utah Code, provides:
(1) (a) It is the policy of this state to recognize as
marriage only the legal union of a man and a woman
as provided in this chapter.
(b) Except for the relationship of marriage between a
man and a woman recognized pursuant to this chapter,
this state will not recognize, enforce, or give legal
effect to any law creating any legal status, rights,
benefits, or duties that are substantially equivalent to
those provided under Utah law to a man and woman
because they are married.
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Baskin v. Bogan, --- F.Supp.2d ---- (2014)
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Amendment 3 provides: “(1) Marriage consists only
of the legal union between a man and a woman.
(2) No other domestic union, however denominated,
may be recognized as a marriage or given the same or
substantially equivalent legal effect.”
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (20 of 518)
Only the Westlaw citation is currently available.
United States Court of Appeals,
Tenth Circuit.
Mary BISHOP and Sharon Baldwin,
Plaintiffs–Appellees,
and
Susan G. Barton and Gay E. Phillips,
Plaintiffs–Appellees/Cross–Appellants,
v.
Sally Howe SMITH, in her official capacity as
Court Clerk for Tulsa County, State of Oklahoma,
Defendant–Appellant/Cross–Appellee,
United States of America, ex rel. Eric H. Holder,
Jr., in his official capacity as Attorney General of
the United States of America, Defendant,
and
Bipartisan Legal Advisory Group of the U.S. House
of Representatives; Thad Balkman; Oklahoman's
for Protection of Marriage, Interven-
ors–Defendants.
Nos. 14–5003, 14–5006.
July 18, 2014.
Background: Lesbian couples brought action
against various government officials claiming that
Defense of Marriage Act (DOMA) section which
functioned to deprive same-sex married couples of
federal benefits, and amendment to Oklahoma con-
stitution limiting marriage to opposite-sex couples
violated due process and equal protection. Defend-
ants' motion to dismiss was granted in part and
denied in part, 447 F.Supp.2d 1239. State appealed.
The Court of Appeals, Terrence L. O'Brien, Circuit
Judge, 333 Fed.Appx. 361, 2009 WL 1566802, re-
versed in part. On remand, plaintiffs filed amended
complaint adding the Attorney General and
county's court clerk as defendants, and the com-
plaint was dismissed as to state of Oklahoma, 2009
WL 4505951. Plaintiffs moved for summary judg-
ment and for entry of final judgment, court clerk
moved for summary judgment, and Attorney Gener-
al moved to dismiss. The United States District
Court for the Northern District of Oklahoma, Ter-
ence C. Kern, J., 962 F.Supp.2d 1252, granted mo-
tion in part and denied motion in part. Parties cross-
appealed.
Holdings: The Court of Appeals, Lucero, Circuit
Judge, held that:
(1) couple established redressability, as required for
standing to challenge amendment's definition of
marriage;
(2) constitutional amendment prohibiting same-sex
marriage was not narrowly tailored;
(3) court clerk's affidavit constituted new evidence
sufficient to overcome law of the case determina-
tion that couples had standing to bring action
against clerk under amendment's recognition prong;
(4) Court of Appeals did not have obligation to con-
sider forfeited severability argument; and
(5) Court of Appeals would not exercise its discre-
tion to hear same-sex couples' forfeited severability
issue.
Affirmed.
Holmes, Circuit Judge, filed concurring opin-
ion.
Kelly, Circuit Judge, filed opinion concurring
in part and dissenting in part.
West Headnotes
[1] Constitutional Law 92 0
92 Constitutional Law
Under Oklahoma law, a constitutional amend-
ment takes the place of all the former laws existing
upon the subject with which it deals.
[2] Federal Courts 170B 0
170B Federal Courts
Court of Appeals reviews a district court's
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standing determinations de novo.
[3] Federal Civil Procedure 170A 0
170A Federal Civil Procedure
To establish standing, a plaintiff must show:
(1) it has suffered an “injury in fact” that is con-
crete and particularized and actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculat-
ive, that the injury will be redressed by a favorable
decision.
[4] Federal Civil Procedure 170A 0
170A Federal Civil Procedure
A party may raise the issue of standing for the
first time at any stage of the litigation, including on
appeal.
[5] Federal Civil Procedure 170A 0
170A Federal Civil Procedure
Redressability required to establish standing is
satisfied when a favorable decision relieves an in-
jury, but a decision does not need to relieve every
injury.
[6] Federal Civil Procedure 170A 0
170A Federal Civil Procedure
Same-sex couple established redressability, as
required for standing to challenge amendment to
Oklahoma constitution limiting marriage to oppos-
ite-sex couples as violative of due process and
equal protection, despite their failure to challenge
state statute defining marriage as between one man
and one woman; statute, which was enacted prior to
constitutional amendment was not enforceable in-
dependent of amendment. U.S.C.A. Const.Amend.
14; Okla. Const. art. 2, § 35; Okla. Stat. tit. 43, §
3(a).
[7] Statutes 361 0
361 Statutes
A time-honored rule in Oklahoma teaches that
a revising statute, or a constitutional amendment,
takes the place of all the former laws existing upon
the subject with which it deals; this is true even
though it contains no express words to that effect.
[8] Statutes 361 0
361 Statutes
Under Oklahoma law, when a constitutional
amendment addresses the same subject as a statute,
replacement is not repeal by implication and occurs
even absent express words.
[9] Federal Courts 170B 0
170B Federal Courts
If the United States Supreme Court has branded
a question as unsubstantial, it remains so except
when doctrinal developments indicate otherwise.
[10] Constitutional Law 92 0
92 Constitutional Law
Assuming that serving children's interest in be-
ing raised by their biological parents was a compel-
ling governmental goal, Oklahoma's constitutional
amendment prohibiting same-sex marriage was not
narrowly tailored to achieve that end, for purposes
of same-sex couples' Fourteenth Amendment chal-
lenge to Oklahoma's prohibition as violative of
their due process and equal protection rights; Ok-
lahoma overlooked the interests of children being
raised by their biological parents in a wide variety
of contexts, yet failed to explain how same-sex
marriage posed a unique threat such that it must be
treated differently from those other circumstances,
and Oklahoma's ban on same-sex marriage swept
too broadly in that it denied a fundamental right to
all same-sex couples who sought to marry or to
have their marriages recognized regardless of their
child-rearing ambitions. U.S.C.A. Const.Amend. 14
; Okla. Const. art. 2, § 35.
[11] Courts 106 0
106 Courts
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Under the law of the case doctrine, when a
court rules on an issue of law, the ruling should
continue to govern the same issues in subsequent
stages in the same case.
[12] Courts 106 0
106 Courts
Law of the case doctrine pertains both to rul-
ings by district courts and by previous panels in pri-
or appeals in the same litigation.
[13] Courts 106 0
106 Courts
It takes exceptionally narrow circumstances for
the court not to follow the law of the case when the
doctrine applies.
[14] Courts 106 0
106 Courts
Prior implicit determination by Court of Ap-
peals that same-sex couples had standing to bring
action against county's court clerk challenging fed-
eral constitutionality of Oklahoma constitutional
amendment prohibiting recognition of same-sex
marriages was law of the case. Okla. Const. art. 2, §
35.
[15] Courts 106 0
106 Courts
Law of the case doctrine applies to issues that
are resolved implicitly.
[16] Courts 106 0
106 Courts
Law of the case doctrine is never off the table
solely because an issue is jurisdictional.
[17] Courts 106 0
106 Courts
While prior implicit determination by Court of
Appeals that same-sex couples had standing to
bring action against county's court clerk challen-
ging Oklahoma constitutional amendment prohibit-
ing recognition of same-sex marriages as violative
of their due process and equal protection rights was
law of the case, court clerk's affidavit stating that
she had no authority to recognize any out-of-state
marriage or marriage license, regardless of whether
it was issued to an opposite-sex or same-sex couple,
constituted new evidence sufficient to overcome the
doctrine; clerk was not party to the case at time of
prior determination by Court of Appeals, and thus
could not have offered such evidence earlier, and
affidavit established couples' lack of Article III
standing as to their recognition claim against clerk.
U.S.C.A. Const.Amend. 14; Okla. Const. art. 2, §
35.
[18] Courts 106 0
106 Courts
As a practice rather than a rigid rule, the law of
the case is subject to three narrow exceptions: (1)
when new evidence emerges; (2) when intervening
law undermines the original decision; and (3) when
the prior ruling was clearly erroneous and would, if
followed, create a manifest injustice.
[19] Courts 106 0
106 Courts
An affidavit is properly categorized as new
evidence under the law of the case where it consti-
tutes admissible evidence.
[20] Courts 106 0
106 Courts
The previously-available-evidence bar is ap-
plied when the party seeking to circumvent the law
of the case had a chance to introduce the evidence
in the prior proceedings and failed to exploit that
chance.
[21] Federal Civil Procedure 170A 0
170A Federal Civil Procedure
Each plaintiff must have standing to seek each
form of relief in each claim.
Page 3
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[22] Federal Civil Procedure 170A 0
170A Federal Civil Procedure
In order to demonstrate Article III standing, a
plaintiff must show: (1) that she has suffered a con-
crete and particular injury in fact that is either actu-
al or imminent; (2) the injury is fairly traceable to
the alleged actions of the defendant; and (3) the in-
jury will likely be redressed by a favorable de-
cision. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[23] Constitutional Law 92 0
92 Constitutional Law
The question of whether an unconstitutional
provision of state law is severable from the re-
mainder of the enactment is a matter of state law.
[24] Constitutional Law 92 0
92 Constitutional Law
Question of whether a severability analysis is
triggered by the facts of the case is a matter of state
law.
[25] Federal Courts 170B 0
170B Federal Courts
Court of Appeals did not have obligation to
consider forfeited severability argument in action
challenging Oklahoma constitutional amendment
barring same-sex marriage. Okla. Const. art. 2, § 35
.
[26] Federal Courts 170B 0
170B Federal Courts
Decision regarding what issues are appropriate
to entertain on appeal in instances of lack of preser-
vation is discretionary.
[27] Federal Courts 170B 0
170B Federal Courts
Where a litigant attempts to rely upon a for-
feited theory, the failure to argue for plain error and
its application on appeal surely marks the end of
the road for an argument for reversal not first
presented to the district court.
[28] Federal Courts 170B 0
170B Federal Courts
Absent any argument for plain error, Court of
Appeals would not exercise its discretion to hear
same-sex couples' forfeited severability issue in ac-
tion challenging Oklahoma constitutional amend-
ment barring same-sex marriage. Okla. Const. art.
2, § 35.
Appeals from the United States District Court for
the Northern District of Oklahoma (D.C. No.
4:04–CV–00848–TCK–TLW).James A. Campbell,
Byron J. Babione and David Austin R. Nimocks,
Alliance Defending Freedom, Scottsdale, AZ, and
John David Luton, Assistant District Attorney, Dis-
trict Attorney's Office, Tulsa, OK, with him on the
briefs, for Defendant–Appellant/Cross–Appellee.
Don G. Holladay, James E. Warner III, Holladay &
Chilton PLLC, Oklahoma City, OK, and Joseph T.
Thai, Norman, OK, with him on the briefs, for
Plaintiffs–Appellees/Cross–Appellants.
FN*
Before KELLY, LUCERO, and HOLMES, Circuit
Judges.
LUCERO, Circuit Judge.
*1 This appeal was brought by the Court Clerk
for Tulsa County, Oklahoma, asking us to overturn
a decision by the district court declaring unenforce-
able the Oklahoma state constitutional prohibition
on issuing marriage licenses to same-sex couples. It
followed quickly on the heels of an analogous ap-
peal brought by State of Utah officials requesting
similar relief. Recognizing that the ruling in the
Utah case would likely control the disposition of
her appeal, the Oklahoma appellant asked that we
assign these cases to the same panel. Our court did
so.
Preliminary to reaching the merits, we are
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presented with two arguments challenging the
plaintiffs' standing. The first challenges whether
plaintiffs may attack state constitutional provisions
without simultaneously attacking state statutes to
the same effect. The second challenges whether the
Court Clerk is a proper defendant as to the non-
recognition portion of the Oklahoma constitutional
prohibition.
[1] We hold that plaintiffs possess standing to
directly attack the constitutionality under the
United States Constitution of Oklahoma's same-sex
marriage ban even though their claim does not
reach Oklahoma's statutory prohibitions on such
marriages. Under Oklahoma law, a constitutional
amendment “takes the place of all the former laws
existing upon the subject with which it deals.” Fent
v. Henry, 257 P.3d 984, 992 n. 20 (Okla.2011) (per
curiam) (quotation omitted). Because the statutory
prohibitions are subsumed in the challenged consti-
tutional provision, an injunction against the latter's
enforcement will redress the claimed injury.
An earlier appeal of this same case involving
the standing inquiry led to a decision by a panel of
our court that dismissed proceedings brought
against the Governor and Attorney General of Ok-
lahoma. That panel ruled that “recognition of mar-
riages is within the administration of the judiciary.”
Bishop Okla. ex rel. Edmondson, 333 F. App'x 361,
365 (10th Cir.2009) (unpublished) (“Bishop I ”).We
conclude that the law of the case doctrine applies to
Bishop I, but that the doctrine is overcome by new
evidence demonstrating that the Tulsa County
Court Clerk could not redress the non-recognition
injury, thereby depriving Gay Phillips and Susan
Barton (the “Barton couple”) of standing to sue.
Our merits disposition is governed by our rul-
ing in Kitchen Herbert, No 13–4178, 2014
U.S.App. LEXIS 11935 (10th Cir. June 25, 2014).
In that companion case, we held that: (1) plaintiffs
who wish to marry a partner of the same sex or
have such marriages recognized seek to exercise a
fundamental right; and (2) state justifications for
banning same-sex marriage that turn on the procre-
ative potential of opposite-sex couples do not satis-
fy the narrow tailoring test applicable to laws that
impinge upon fundamental liberties. Exercising jur-
isdiction under 28 U.S.C. § 1291, and governed by
our ruling in Kitchen, we affirm.
I
Mary Bishop and Sharon Baldwin are in a
long-term committed relationship and seek to
marry. They live together in Tulsa County, Ok-
lahoma, where they both work for the Tulsa World
newspaper. Bishop is a sixth-generation Oklahoman
and Baldwin is “at least a fourth-generation Ok-
lahoman.” They jointly own their home and other
property.
*2 In March 2000, the couple exchanged vows
in a church-recognized “commitment ceremony.”
They feel, however, that this ceremony fails to
“signify the equality” of their relationship, and that
marriage conveys a “level of commitment or re-
spect” that is not otherwise available. Bishop and
Baldwin sought a marriage license from the Tulsa
County Court Clerk in February 2009, but were
denied because they are both women. The couple
identifies several discrete harms they have suffered
because of their inability to marry, including
$1,300 in legal fees to prepare a power of attorney
form and healthcare proxies. Moreover, they ex-
plain that their inability to marry under Oklahoma
law is “demeaning” and “signals to others that they
should not respect our relationship.”
Phillips and Barton have been in a committed
relationship since 1984. They took part in a civil
union ceremony in Vermont in 2001, were married
in Canada in 2005, and wed again in California in
2008. The couple jointly owns a company that
provides training and assistance to non-profit agen-
cies that conduct youth out-of-home care. Barton
also teaches classes at Tulsa Community College,
including a course titled “Building Relationships.”
Phillips and Barton have suffered adverse fed-
eral tax consequences as a result of the Defense of
Marriage Act (“DOMA”), as well as adverse state
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tax consequences stemming from Oklahoma's re-
fusal to recognize their marital status. They say that
having their relationship recognized as a marriage
“should have been a dream come true.” Instead,
“the State of Oklahoma has said ours is not a real
marriage, but something inferior to the relation-
ships of married opposite sex couples.”
In November 2004, plaintiffs Bishop, Baldwin,
Barton, and Phillips filed suit against the Oklahoma
Governor and Attorney General, challenging Ok-
lahoma's state constitutional ban on same-sex mar-
riage. The Oklahoma prohibition, known as State
Question 711 (“SQ 711”), provides:
A. Marriage in this state shall consist only of the
union of one man and one woman. Neither this
Constitution nor any other provision of law shall
be construed to require that marital status or the
legal incidents thereof be conferred upon unmar-
ried couples or groups.
B. marriage between persons of the same gender
performed in another state shall not be recog-
nized as valid and binding in this state as of the
date of the marriage.
C. Any person knowingly issuing a marriage li-
cense in violation of this section shall be guilty of
a misdemeanor.
Okla. Const. art. 2, § 35. The suit also named
the United States President and Attorney General as
defendants in a constitutional challenge to DOMA.
A motion to dismiss filed by the Governor and
State Attorney General was denied by the district
court in 2006. That decision was appealed to this
court. In 2009, a panel of our court concluded that
“[b]ecause the plaintiffs failed to name a defendant
having a causal connection to their alleged injury
that is redressable by a favorable court decision, ...
the Couples do not have standing.” Bishop I, 333 F.
App'x at 364. The panel held that “recognition of
marriages is within the administration of the judi-
ciary,” and thus “the executive branch of Ok-
lahoma's government has no authority to issue a
marriage license or record a marriage.” Id. at 365.
*3 On remand, the district court permitted the
plaintiffs to file an amended complaint naming as a
defendant the “State of Oklahoma, ex rel. Sally
Howe–Smith, in her official capacity as Court
Clerk for Tulsa County.” The court granted Ok-
lahoma's motion to dismiss the state as a nominal
party, leaving Smith as the sole state defendant.
The amended complaint also asserted challenges to
§ § 2 and 3 of DOMA against the United States ex
rel. Eric Holder. However, in February 2011, the
United States notified the district court that it
would no longer defend § 3 of DOMA on the mer-
its. The Bipartisan Legal Advisory Group was per-
mitted to intervene to defend the law. The case then
progressed to the summary-judgment stage. Smith
submitted an affidavit describing her duties as they
related to the plaintiffs' allegations. In that affi-
davit, Smith swore that she had “no authority to re-
cognize or record a marriage license issued by an-
other state in any setting, regardless of whether the
license was issued to an opposite-sex or a same-sex
couple.”
After the Supreme Court issued its decision in
United States v. Windsor, ––– U.S. ––––, 133 S.Ct.
2675, 186 L.Ed.2d 808 (2013), the district court
entered an opinion and order disposing of the
United States' motion to dismiss, as well as Ok-
lahoma and plaintiffs' cross-motions for summary
judgment. See Bishop v. United States ex rel. Hold-
er, 962 F.Supp.2d 1252, 1263 (N.D.Okla.2014) (“
Bishop II ”).The district court concluded that: (1)
Phillips and Barton lacked standing to challenge § 2
of DOMA because state law, rather than that provi-
sion, resulted in non-recognition of their marriage,
id. at 1263–68; (2) any challenge to § 3 of DOMA
was moot in light of the Windsor decision, id. at
1269–72; (3) Phillips and Barton lacked standing to
challenge the non-recognition portion of the Ok-
lahoma amendment, Part B, because Smith is not
involved in the recognition of out-of-state mar-
riages, as established by her summary-judgment af-
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fidavit, id. at 1272–73; and (4) Part A of SQ 711 vi-
olates the Equal Protection Clause, id. at 1281–96.
The court permanently enjoined enforcement of
Part A. Id. at 1296. The decision, however, was
stayed pending final disposition of any appeal. Id.
Smith timely appealed the district court's mer-
its ruling as to Part A. Phillips and Barton cross-
appealed the district court's conclusion that they
lack standing to challenge Part B. The DOMA chal-
lenges are not at issue in this appeal.
II
A
[2][3][4] Smith contends that Bishop and Bald-
win (the “Bishop couple”) lack standing to chal-
lenge Part A of SQ 711 because they did not simul-
taneously contest the constitutionality of a state
statute that bars same-sex couples from marrying.
We review a district court's standing determinations
de novo. See Cressman v. Thompson, 719 F.3d
1139, 1144 (10th Cir.2013). To establish standing,
a plaintiff must show:
(1) it has suffered an “injury in fact” that is (a)
concrete and particularized and (b) actual or im-
minent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be re-
dressed by a favorable decision.
*4 Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct.
693, 145 L.Ed.2d 610 (2000). Although the Bishop
couple's standing was not raised below, a party may
“raise the issue of standing for the first time at any
stage of the litigation, including on appeal.” New
Eng. Health Care Emps. Pension Fund v. Woodruff,
512 F.3d 1283, 1288 (10th Cir.2008).
[5] The Bishop couple has not established re-
dressability, Smith argues, because a second, un-
challenged legal obstacle bars their marriage. Under
Okla. Stat. tit. 43, § 3(a), which was not properly
put at issue below, “[a]ny unmarried person who is
at least eighteen (18) years of age and not otherwise
disqualified is capable of contracting and consent-
ing to marriage with a person of the opposite sex.”
Id. Although the district court enjoined enforcement
of Part A, it did not enjoin operation of the statute.
See Bishop II, 962 F.Supp.2d at 1296. Because the
statute permits marriage only between members of
the opposite sex, Smith argues that the Bishop
couple's injury-their inability to marrywill not be
redressed by an injunction against SQ 711 alone.
FN1
“[R]edressability is satisfied when a favorable
decision relieves an injury,” but a decision does not
need to relieve “every injury.” Consumer Data In-
dus. Ass'n v. King, 678 F.3d 898, 905 (10th
Cir.2012) (emphasis omitted).
In support, Smith asserts that several courts
have concluded that plaintiffs lack standing under
circumstances somewhat similar to the present mat-
ter. In White v. United States, 601 F.3d 545 (6th
Cir.2010), a group of plaintiffs challenged the fed-
eral Animal Welfare Act (“AWA”), which restric-
ted “various activities associated with animal fight-
ing that involve interstate travel and commerce, but
did not (and does not) itself prohibit animal fight-
ing, including cockfighting.” Id. at 549. All fifty
states, however, have prohibited cockfighting under
state law. Id. The plaintiffs claimed that they had
suffered economic injuries as a result of the federal
statute's ban, including a decreased market for
fighting birds. Id. at 549–50. The Court concluded
that these allegations did not support standing:
Cockfighting is banned to a greater or lesser de-
gree in all fifty states and the District of
Columbia. Thus, while economic injuries may
constitute an injury-in-fact for the purposes of
Article III standing, the plaintiffs' alleged eco-
nomic injuries due to restrictions on cockfighting
are not traceable only to the AWA. Nor would
these injuries be redressed by the relief plaintiffs
seek, since the states' prohibitions on cockfight-
ing would remain in place notwithstanding any
action we might take in regard to the AWA.
Id. at 552 (citations omitted).
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We are referred to numerous sign ordinance
cases holding that “a plaintiff whose sign permit
applications were denied on the basis of one provi-
sion in a county's sign ordinance, but which could
have been denied on the basis of some alternate, but
unchallenged regulation, does not have a redress-
able injury.” Maverick Media Grp., Inc. v. Hills-
borough Cnty., 528 F.3d 817, 820 (11th Cir.2008)
(collecting cases). In Maverick, for example, the
court ruled that a court order barring enforcement
of a county's ban on billboards would not aid the
plaintiff because the signs it sought to build were
also prohibited by unchallenged height and size
limitations. Id. at 821, 823.
*5 We need not decide whether the cases cited
by Smith are consistent with our circuit precedent
because they are readily distinguishable from the
case at hand. Courts have concluded that plaintiffs
fail to establish redressability only when an unchal-
lenged legal obstacle is enforceable separately and
distinctly from the challenged provision. In White,
the federal statute meaningfully differed from the
state cockfighting prohibitions and was enforced by
a different sovereign. See 601 F.3d at 549. Simil-
arly, the sign cases rest on the existence of an
“alternate” regulation addressing a distinct issue.
See Maverick, 528 F.3d at 820.
[6][7] Unlike the statutes and regulations at is-
sue in the cases upon which Smith relies, Okla.
Stat. tit. 43, § 3(a) is not enforceable independent
of SQ 711. Under Oklahoma law:
A time-honored rule teaches that a revising stat-
ute (or, as in this case, a constitutional amend-
ment) takes the place of all the former laws exist-
ing upon the subject with which it deals. This is
true even though it contains no express words to
that effect. In the strictest sense this process is
not repeal by implication. Rather, it rests upon
the principle that when it is apparent from the
framework of the revision that whatever is em-
braced in the new law shall control and whatever
is excluded is discarded, decisive evidence exists
of an intention to prescribe the latest provisions
as the only ones on that subject which shall be
obligatory.
Fent, 257 P.3d at 992 n. 20 (quoting Hendrick
v. Walters, 865 P.2d 1232, 1240 (Okla.1993)). This
rule suggests that SQ 711 “takes the place of” §
3(a), and only the provisions of the constitutional
amendment “shall be obligatory.” Fent, 257 P.3d at
992 n. 20.
[8] Fent, Smith informs us, stands for the op-
posite proposition because another portion of the
opinion notes the general rules that “repeals by im-
plication are never favored,” that “it is not pre-
sumed that the legislature, in the enactment of a
subsequent statute intended to repeal an earlier one,
unless it has done so in express terms,” and that “all
provisions must be given effect unless irreconcil-
able conflicts exist.” Id. at 991. But the quoted pas-
sage clarifies that when a constitutional amendment
addresses the same subject as a statute, replacement
is “not repeal by implication” and occurs even ab-
sent “express words.” Id. at 992 n. 20.
Fent did not involve a constitutional amend-
ment replacing a statute; the court simply noted the
rule in a footnote. The relevant quotation originates
in Hendrick, which held that a constitutional
amendment providing for a new oath of office for
certain state positions superseded an existing statute
prescribing a different oath. 865 P.2d at 1240–41.
Smith is correct that the provisions at issue in
Hendrick were arguably in conflict and the court
found an “intent to abrogate.” Id. at 1240 n. 41.
However, the broad language used in Hendrick and
quoted in Fent directs that if the “framework” of a
constitutional amendment indicates “that whatever
is embraced in the new law shall control and
whatever is excluded is discarded,” courts should
treat this framework as “decisive evidence” that the
amendment is the only provision “on that subject
which shall be obligatory.” Fent, 257 P.3d at 992 n.
20 (quoting Hendrick, 865 P.2d at 1240).
*6 SQ 711 evinces such a framework. The Ok-
lahoma Supreme Court cited Lankford v. Menefee,
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45 Okla. 228, 145 P. 375 (Okla.1914), in support of
its conclusion in Hendrick. See 865 P.2d at 1240
nn. 38–40. Lankford provides that “a subsequent
statute revising the subject-matter of the former
one, and evidently intended as a substitute for it, al-
though it contains no express words to that effect,
must operate to repeal the former” as long as “it is
apparent that the Legislature designed a complete
scheme for the matter.” 145 P. at 376. It follows
that SQ 711 provides a complete scheme for Ok-
lahoma's policy regarding same-sex marriage.
The statute identified by Smith has no effect
beyond the restrictions on same-sex marriage im-
posed by SQ 711 because the two provisions are
materially identical. Total eclipse of the function of
the statute underscores our conclusion that the
amendment provides a complete scheme. Further, it
raises the concern that the statute could not be en-
forced without violating the district court's injunc-
tion. Smith was enjoined from enforcing “Part A
against same-sex couples seeking a marriage li-
cense.” Bishop II, 962 F.Supp.2d at 1296. If Smith
were to deny the Bishop couple a marriage license
because they are both women, she would simultan-
eously be enforcing both Okla. Stat. tit. 43, § 3(a)
and Part A of SQ 711. There is no scenario in
which Smith could enforce the statute but not en-
force the amendment.
FN2
Because the prohibition on same-sex marriage
contained in Okla. Stat. tit. 43, § 3(a) is not en-
forceable independently of SQ 711, we conclude
that the Bishop couple has shown that their injury is
redressable in this suit.
FN3
B
Our consideration of the merits of the Bishop
couple's appeal is largely controlled by our decision
in Kitchen. As explained more fully in that opinion,
we conclude that: (1) the Supreme Court's summary
dismissal in Baker v. Nelson, 409 U.S. 810, 93
S.Ct. 37, 34 L.Ed.2d 65 (1972) (per curiam), is not
controlling, Kitchen, 2014 U.S.App. LEXIS 11935,
at *21–31; plaintiffs seek to exercise the funda-
mental right to marry, id. at *33–63; and (3) state
arguments that same-sex marriage bans are justified
by the need to communicate a conceptual link
between marriage and procreation, encourage par-
enting by mothers and fathers, and promote sacri-
fice by parents for their children fail to satisfy the
narrow tailoring requirement of the applicable strict
scrutiny test, id. at *63–87.
Facts and arguments presented in this case dif-
fer in some respects from those in Kitchen. But our
core holdings are not affected by those differences.
State bans on the licensing of same-sex marriage
significantly burden the fundamental right to marry,
FN4
and arguments based on the procreative capa-
city of some opposite-sex couples do not meet the
narrow tailoring prong. In addition to the issues ex-
plicitly discussed in Kitchen, we address two other
arguments raised by Smith.
She contends that lower federal courts are not
free to reject on-point summary dismissals of the
Supreme Court regardless of doctrinal develop-
ments. Thus, Smith argues, Baker remains con-
trolling. Her focus is on the Court's statement that a
summary disposition “is not here of the same pre-
cedential value as would be an opinion of this Court
treating the question on the merits.” Tully v. Griffin,
Inc., 429 U.S. 68, 74, 97 S.Ct. 219, 50 L.Ed.2d 227
(1976) (quotation omitted, emphasis added). This
statement, Smith contends, indicates that, although
they may have diminished precedential value for
the Supreme Court, summary dispositions are
identical to merits decisions when considered by
lower courts. She also cites the Court's direction
that summary dispositions “prevent lower courts
from coming to opposite conclusions on the precise
issues presented and necessarily decided by those
actions.” Mandel v. Bradley, 432 U.S. 173, 176, 97
S.Ct. 2238, 53 L.Ed.2d 199 (1977).
*7 [9] Her argument that doctrinal develop-
ments do not allow a lower court to reject the con-
tinued applicability of a summary disposition is un-
dermined by the explicit language of the case creat-
ing that rule. In Hicks v. Miranda, 422 U.S. 332, 95
S.Ct. 2281, 45 L.Ed.2d 223 (1975), the Court stated
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that “inferior federal courts had best adhere to the
view that if the Court has branded a question as un-
substantial, it remains so except when doctrinal de-
velopments indicate otherwise. ” Id. at 344
(quotation omitted, emphases added); see also
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 94 n.
11, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (noting
circuit court's holding that a doctrinal development
warranted departure from precedent set by Supreme
Court's summary dispositions); Okla. Telecasters
Ass'n v. Crisp, 699 F.2d 490, 495 (10th Cir.1983)
(“[A] summary disposition is binding on the lower
federal courts, at least where substantially similar
issues are presented, until doctrinal developments
or direct decisions by the Supreme Court indicate
otherwise. ” (emphases added)), rev'd sub nom.
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691,
104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). Thus, con-
trary to Smith's position, the doctrinal develop-
ments statement is explicitly directed toward lower
courts. And as explained in Kitchen, nearly every
lower federal court to have considered the issue has
concluded that Baker has been undermined by doc-
trinal developments. Kitchen, 2014 U.S.App. LEX-
IS 11935, at *25–26.
[10] In addition to her Baker argument, Smith
also contends that children have an interest in being
raised by their biological parents. Assuming that
serving this interest is a compelling governmental
goal, we nevertheless conclude that a prohibition on
same-sex marriage is not narrowly tailored to
achieve that end. See Reno v. Flores, 507 U.S. 292,
301–02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)
(stating strict scrutiny test). Oklahoma has enacted
numerous laws that result in children being raised
by individuals other than their biological parents.
See, e.g., Okla. Stat. tit. 10, § 554 (“Any child or
children born as a result of a heterologous oocyte
donation shall be considered for all legal intents
and purposes, the same as a naturally conceived le-
gitimate child of the husband and wife which con-
sent to and receive an oocyte pursuant to the use of
the technique of heterologous oocyte donation.”); §
556(B)(1) (“Any child or children born as a result
of a human embryo transfer donation shall be con-
sidered for all legal intents and purposes, the same
as a naturally conceived legitimate child of the hus-
band and wife that consent to and receive a human
embryo transfer.”); § 7501–1.2(A) ( “The Legis-
lature of this state believes that every child should
be raised in a secure, loving home and finds that
adoption is the best way to provide a permanent
family for a child whose biological parents are not
able or willing to provide for the child's care or
whose parents believe the child's best interest will
be best served through adoption.”). And Oklahoma
permits infertile opposite-sex couples to marry des-
pite the fact that they, as much as same-sex
couples, might raise non-biological children.
*8 The State thus overlooks the interests of
children being raised by their biological parents in a
wide variety of contexts. Yet Smith does not ex-
plain why same-sex marriage poses a unique threat
such that it must be treated differently from these
other circumstances. See Zablocki v. Redhail, 434
U.S. 374, 390, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)
(“grossly underinclusive” statute did not satisfy
narrow tailoring requirement). As the Court ex-
plained in Eisenstadt v. Baird, 405 U.S. 438, 92
S.Ct. 1029, 31 L.Ed.2d 349 (1972), if “the evil, as
perceived by the State, would be identical” with re-
spect to two classes, the state may not impinge
upon the exercise of a fundamental right as to only
one class because “the underinclusion would be in-
vidious.” Id. at 454. As we explained in Kitchen,
such divergence between the characteristic claimed
to be relevant and the classification contained in the
challenged provision is inconsistent with the nar-
row tailoring requirement. See Kitchen, 2014
U.S.App. LEXIS 11935, at *64–75.
Moreover, Oklahoma's ban on same-sex mar-
riage sweeps too broadly in that it denies a funda-
mental right to all same-sex couples who seek to
marry or to have their marriages recognized regard-
less of their child-rearing ambitions. As with op-
posite-sex couples, members of same-sex couples
have a constitutional right to choose against procre-
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ation. See Eisenstadt, 405 U.S. at 453 (“If the right
of privacy means anything, it is the right of the in-
dividual, married or single, to be free from unwar-
ranted governmental intrusion into matters so fun-
damentally affecting a person as the decision
whether to bear or beget a child.” (emphasis omit-
ted)). But Oklahoma has barred all same-sex
couples, regardless of whether they will adopt,
bear, or otherwise raise children, from the benefits
of marriage while allowing all opposite-sex
couples, regardless of their child-rearing decisions,
to marry. Such a regime falls well short of estab-
lishing “the most exact connection between justific-
ation and classification.” Gratz v. Bollinger, 539
U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257
(2003) (quotation omitted); see also Frisby v.
Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101
L.Ed.2d 420 (1988) (“A statute is narrowly tailored
if it targets and eliminates no more than the exact
source of the ‘evil’ it seeks to remedy.”).
In summary, none of the arguments presented
by Smith that were unaddressed in Kitchen per-
suade us to veer from our core holding that states
may not, consistent with the United States Constitu-
tion, prohibit same-sex marriages.
III
I am grateful to Judge Holmes for his author-
ship of this, Part III of the majority opinion. Judge
Holmes was on panel for our earlier decision in
Bishop I. His authorship of this section is acknow-
ledged with thanks.
Because Smith lacks “authority to recognize
any out-of-state marriage and therefore [lacks the]
ability to redress the Barton couple's non-
recognition injury,” Bishop II, 962 F.Supp.2d at
1273, the district court held that the Barton couple
lacked standing to challenge Part B of SQ 711 as
against Smith. We conclude that although the law
of the case doctrine applied to Bishop I, Smith's af-
fidavit constituted new evidence sufficient to over-
come the doctrine. We further conclude that the
Barton couple's argument that Part B is inseverable
from Part A—and that both must therefore fall to-
gether—was forfeited.
A
*9 [11][12][13] “Under the ‘law of the case’
doctrine, when a court rules on an issue of law, the
ruling ‘should continue to govern the same issues in
subsequent stages in the same case.’ “ United States
v. Graham, 704 F.3d 1275, 1278 (10th Cir.2013)
(quoting Arizona v. California, 460 U.S. 605, 618,
103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)) (quotation
omitted). The doctrine pertains both to rulings by
district courts, see, e.g., Clark v. State Farm Mut.
Auto. Ins. Co., 590 F.3d 1134, 1140 (10th Cir.2009)
, and—as relevant here—by previous panels in pri-
or appeals in the same litigation, see, e.g., United
States v. Wardell, 591 F.3d 1279, 1300 (10th
Cir.2009). Importantly, “[w]e have routinely recog-
nized that the law of the case doctrine is
‘discretionary, not mandatory,’ and that the rule
‘merely expresses the practice of courts generally
to refuse to reopen what has been decided, not a
limit on their power.’ “ Kennedy v. Lubar, 273 F.3d
1293, 1299 (10th Cir.2001) (quoting Stifel, Nic-
olaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544
(10th Cir.1996)) (quotation omitted); accord
Haynes Trane Serv. Agency v. Am. Standard, Inc.,
573 F.3d 947, 963 (10th Cir.2009). Even so, it takes
“exceptionally narrow circumstances” for the court
not to follow the law of the case when the doctrine
applies. United States v. Alvarez, 142 F.3d 1243,
1247 (10th Cir.1998).
In Bishop I, a panel of this court found that
neither the Barton couple nor the Bishop couple
had standing to challenge SQ 711. 333 F. App'x at
365. It determined that the couples could not
demonstrate redressability, reasoning as follows:
The Couples claim they desire to be married but
are prevented from doing so, or they are married
but the marriage is not recognized in Oklahoma.
These claims are simply not connected to the du-
ties of the Attorney General or the Governor.
Marriage licenses are issued, fees collected, and
the licenses recorded by the district court clerks.
[A] district court clerk is judicial personnel and is
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an arm of the court whose duties are ministerial,
except for those discretionary duties provided by
statute. In the performance of [a] clerk's minis-
terial functions, the court clerk is subject to the
control of the Supreme Court and the supervisory
control that it has passed down to the Adminis-
trative District Judge in the clerk's administrative
district. Because recognition of marriages is with-
in the administration of the judiciary, the execut-
ive branch of Oklahoma's government has no au-
thority to issue a marriage license or record a
marriage.
Id. (alterations in original) (quotation and cita-
tions omitted). Taking this passage at face value, it
is most logically construed as the panel's determin-
ation that the Barton couple should have sued a dis-
trict court clerk on their non-recognition claim. The
panel: (1) prefaced its discussion with a reference
to both the ban and the non-recognition claims; (2)
found standing on neither; (3) reasoned that the At-
torney General and the Governor were improper de-
fendants; (4) explained that judicial personnel were
proper defendants; and (5) informed the plaintiffs
that court clerks represented the judiciary and car-
ried out many of the branch's duties relating to mar-
riage. Collectively, these points lead to but one in-
terpretation: the correct defendant for the Barton
couple's nonrecognition claim was a court clerk.
*10 One possible counterargument is that when
the panel wrote that “recognition of marriages” was
“within the administration of the judiciary,” id., it
meant in the broader sense of recognizing a
couple's right to get a marriage license in Ok-
lahoma. That argument makes little sense when one
considers the context: the first sentence of the para-
graph describes the complaint of the couples (more
specifically, the Barton couple) as alleging that
“they are married but the marriage is not recog-
nized in Oklahoma,” id. (emphasis added), and the
order consistently uses some form of the word
“recognize” to describe the Barton couple's claim,
see id. at 362–63.
Another potential counterargument is that the
panel determined only that the Barton couple
should look for a defendant in the judicial branch,
not that they should necessarily select a court clerk.
See id. at 365 (“Because recognition of marriages is
within the administration of the judiciary, the exec-
utive branch of Oklahoma's government has no au-
thority to issue a marriage license or record a mar-
riage.” (emphasis added)). Again, though, context
belies this interpretation. Why mention the role of
the court clerks in administering the marriage stat-
utes, and why describe their relationship to the rest
of the court system, if not to express the opinion
that they are appropriate defendants?
[14] That the panel concluded that a court clerk
was the proper adversary for the Barton couple
does not necessarily mean that this conclusion be-
came the law of the case. There are three potential
reasons to hold that it did not: (1) the conclusion
was dicta; (2) the conclusion dealt with recognition
of an older marriage entered into by the Barton
couple, not their current marriage; and (3) as a jur-
isdictional determination, the conclusion was not
subject to the law of the case doctrine. None of
these reasons are persuasive.
[15] Turning to the first, it is well-settled that
“[d]icta is not subject to the law of the case doc-
trine.” Homans v. City of Albuquerque, 366 F.3d
900, 904 n. 5 (10th Cir.2004); accord Octagon
Res., Inc. v. Bonnett Res. Corp. ( In re Meridian
Reserve, Inc.), 87 F.3d 406, 410 (10th Cir.1996).
Statements which appear in an opinion but which
are unnecessary for its disposition are dicta. See
United States v. Manatau, 647 F.3d 1048, 1054
(10th Cir.2011); United States v. Villarreal–Ortiz,
553 F.3d 1326, 1329 n. 3 (10th Cir.2009) (per curi-
am). One could argue that Bishop I held only that
the Governor and the Attorney General were the
wrong defendants, not that Smith was the right one.
But it is not so easy to separate the two propositions
as a logical matter, and the “law of the case applies
to issues that are resolved implicitly.” Rishell v.
Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d
1407, 1410 (10th Cir.1996). Bishop I's holding that
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the Governor and Attorney General were improper
defendants was tethered closely to the panel's view
of who the right defendant was. That is, the panel's
rationale for finding no standing was that the Gov-
ernor and Attorney General were not responsible
for administering marriage laws and the court
clerks were. See Bishop I, 333 F. App'x at 365
(“The Couples claim they desire to be married but
are prevented from doing so, or they are married
but the marriage is not recognized in Oklahoma.
These claims are simply not connected to the duties
of the Attorney General or the Governor. Marriage
licenses are issued, fees collected, and the licenses
recorded by the district court clerks.”). Therefore,
the panel held, if only implicitly, that the court
clerk was the correct defendant to name for the Bar-
ton couple's non-recognition claim.
*11 The second potential reason to rule that
Bishop I created no law of the case on standing to
sue on the non-recognition claim is that the panel
never ruled on such a claim with reference to the
Barton couple's California marriage, upon which
the claim is now based; rather, it ruled only on their
Canadian marriage and Vermont civil union, since
the California marriage was solemnized after brief-
ing in the appeal was complete. See id. at 363
(mentioning the events in Vermont and Canada but
not the California marriage). This is a distinction
without a difference. The holding in Bishop I had
nothing to do with what sovereign conferred the
status that the Barton couple wished to have recog-
nized; it had only to do with which state officials
were responsible for offering or withholding that
recognition. See id. at 365 (noting that “the execut-
ive branch of Oklahoma's government has no au-
thority to issue a marriage license or record a mar-
riage”).
[16] Lastly, it is Smith's view that the law of
the case doctrine is per se excluded from considera-
tion on this point because the standing issue is jur-
isdictional. Smith's stance is squarely foreclosed by
Supreme Court precedent. In Christianson v. Colt
Industries Operating Corp., 486 U.S. 800, 108
S.Ct. 2166, 100 L.Ed.2d 811 (1988), the Court took
up a dispute in which the Seventh Circuit and the
Federal Circuit had each disclaimed jurisdiction
and had each transferred the case to the other. Id. at
803–04. The Supreme Court admonished the feud-
ing circuit courts of the importance of “adhering
strictly to principles of law of the case.” Id. at 819.
In so doing, the Supreme Court did not tailor its ar-
ticulation of the law of the case doctrine to the jur-
isdictional context. Quite to the contrary, it expli-
citly declared that “[t]here is no reason to apply
law-of-the-case principles less rigorously to trans-
fer decisions that implicate the transferee's jurisdic-
tion.” Id. at 816 n. 5. Christianson thus makes clear
that the law of the case doctrine is never off the ta-
ble solely because an issue is jurisdictional. The cir-
cuits have agreed that this rule applies to a situ-
ation, like the one present today, where a prior pan-
el of the same court resolved a jurisdictional matter
in an earlier appeal. See Alexander v.
Jensen–Carter, 711 F.3d 905, 909 (8th Cir.2013);
Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d
699, 704 (7th Cir.2011); Free v. Abbott Labs., Inc.,
164 F.3d 270, 272–73 (5th Cir.1999); Ferreira v.
Borja, 93 F.3d 671, 674 (9th Cir.1996) (per curi-
am); LaShawn A. v. Barry, 87 F.3d 1389, 1394
(D.C.Cir.1996) (en banc); Oneida Indian Nation of
N.Y. v. New York, 860 F.2d 1145, 1151 (2d
Cir.1988).
FN5
For the proposition that the law of the case
doctrine has no applicability to jurisdictional mat-
ters, Smith relies chiefly on Baca v. King, 92 F.3d
1031 (10th Cir.1996). Baca cannot support that
weight. In the crucial passage from that case, we
stated that “[o]ne application of the ‘law of the
case’ doctrine gives an appellate court discretion to
refuse to reconsider an issue decided at an earlier
stage of the litigation” and that doctrine “is not a
fixed rule that prevents a federal court from determ-
ining the question of its own subject matter juris-
diction in a given case.” Id. at 1035. Far from
carving out an exception to customary law-
of-the-case practices in the jurisdictional context,
Baca was actually applying the classic law-
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of-the-case approach to a jurisdictional question.
That is, the law of the case is never “a fixed rule,”
id., but rather always a “discretionary ... practice of
courts generally to refuse to reopen what has been
decided.” Kennedy, 273 F.3d at 1299 (quotation
omitted). Utilizing that well-established framework,
the Baca court determined that the law of the case
did not dictate the result of the jurisdictional ques-
tion presented under the circumstances in that dis-
pute. Baca did not foreclose the possibility that the
law of the case might, in other controversies, con-
trol a jurisdictional issue.
FN6
*12 By emphasizing the jurisdictional nature of
the issue, Baca reflected the longstanding rule that
while there is no categorical exclusion from the law
of the case doctrine for jurisdictional issues, a
slightly more flexible methodology is called for in
the jurisdictional context. In this regard, we have
indicated that “[i]ssues such as subject matter juris-
diction ... may be particularly suitable for reconsid-
eration,” even where the doctrine might otherwise
counsel against it. Kennedy, 273 F.3d at 1299
(quotation and citation omitted). Our law on that
point is consistent with respected secondary author-
ity and with the pronouncements of our sister cir-
cuits. See Am. Canoe Ass'n v. Murphy Farms, Inc.,
326 F.3d 505, 515 (4th Cir.2003) (“Law of the case,
which is itself a malleable doctrine meant to bal-
ance the interests of correctness and finality, can
likewise be calibrated to reflect the increased prior-
ity placed on subject matter jurisdictional issues
generally, and Article III standing in particular
which represents perhaps the most important of all
jurisdictional requirements.” (emphasis added)
(quotation omitted)); Shakman v. Dunne, 829 F.2d
1387, 1393 (7th Cir.1987) (“[C]ourts are signific-
antly less constrained by the law of the case doc-
trine with respect to jurisdictional questions.”
(emphasis added)); 18B Charles Alan Wright et al.,
Federal Practice and Procedure § 4478.5, at 790
(2d ed.2002) (henceforth Federal Practice) (noting
that “[t]he force of law-of-the-case doctrine is af-
fected by the nature of the first ruling and by the
nature of the issues involved” and then ranking sub-
ject-matter jurisdiction as one of the issues “most
likely to be reconsidered because of [its] conceptual
importance”); id. at 798–800 (“Although a federal
court is always responsible for assuring itself that it
is acting within the limits of subject-matter jurisdic-
tion statutes and Article III, this duty need not ex-
tend to perpetual reconsideration. A court may ac-
cept its own earlier determination supporting sub-
ject-matter jurisdiction or justiciability; a denial of
subject-matter jurisdiction or justiciability is easily
adhered to. Reconsideration of these matters is par-
ticularly appropriate nonetheless ....“ (emphases ad-
ded) (footnotes omitted)).
In sum, the law of the case doctrine does apply
to prior jurisdictional determinations by merits pan-
els, but it applies in a somewhat weaker fashion
such that the court can consider with special care
whether an exception to the doctrine permits reas-
sessment of jurisdiction. That more flexible form of
the doctrine will be brought to bear in the following
section.
B
[17] Applying the law of the case doctrine with
the foregoing considerations in mind, Bishop I does
not require a finding of standing to sue on the non-
recognition claim.
[18] As a practice rather than a rigid rule, the
law of the case is subject to three narrow excep-
tions: (1) when new evidence emerges; (2) when in-
tervening law undermines the original decision; and
(3) when the prior ruling was clearly erroneous and
would, if followed, create a manifest injustice. See
Irving, 665 F.3d at 1192 n. 12; Clark, 590 F.3d at
1140.
*13 Although Smith focuses on the third ex-
ception, the first provides a better framework for
the analysis. This is so because Smith does not
make a case for why invocation of law of the case
would work “a manifest injustice,” which the
clearly-erroneous exception requires .
FN7
See, e.g.,
Zinna v. Congrove, ––– F.3d ––––, 2014 U.S.App.
LEXIS 10460, at *11 (10th Cir.2014); Irving, 665
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F.3d at 1192 n. 12; Rimbert v. Eli Lilly & Co., 647
F.3d 1247, 1251 (10th Cir.2011). Further, Smith is
relying in her law-of-the-case argument on a docu-
ment—her affidavit—that was not presented to the
courts until after Bishop I's issuance. If the affidavit
shows Smith to be an improper defendant, as she
maintains, then the Bishop I panel could not have
clearly erred in finding to the contrary, as it did not
have the benefit of that affidavit. Substantively,
then, the new-evidence exception is the more ap-
propriate exception to consider here.
Having located the relevant exception, we con-
front two questions: (1) whether the affidavit quali-
fies as new evidence for purposes of the exception;
and (2) whether the affidavit proves the absence of
standing. Both questions demand an affirmative an-
swer.
1
Turning to the first question, there can be no
serious argument that the affidavit is anything other
than new evidence within the meaning of the excep-
tion. Smith Machinery Co. v. Hesston Corp., 878
F.2d 1290 (10th Cir.1989), is a helpful place to be-
gin. In that case, a district court at summary judg-
ment reconsidered a previous ruling despite the law
of the case, relying in part on the proposition that
“the law of the case doctrine does not ... apply in
cases in which new evidence is presented to a
court.” Id . at 1292. We affirmed, noting that the
district court had before it “depositions and affi-
davits presented by both parties” attesting to new
and relevant facts. Id. at 1293. Tacitly, Smith Ma-
chinery endorsed the district court's use of the sum-
mary-judgment affidavits in its new-evidence ana-
lysis.
[19] This implicit holding is in keeping with
general principles of law. As In re Antrobus, 563
F.3d 1092 (10th Cir.2009) (per curiam), intimated,
an affidavit is properly categorized as new evidence
under the law of the case where it constitutes
“admissible evidence,” id. at 1099 n. 3, and affi-
davits are plainly competent evidence at summary
judgment, see Fed.R.Civ.P. 56(c)(1)(A) (providing
that a party moving for summary judgment may
support its motion by pointing to affidavits);
Hansen v. PT Bank Negara Indon. (Persero), 706
F.3d 1244, 1250 (10th Cir.2013) (“[A]ffidavits are
entirely proper on summary judgment....”).
FN8
Nor is there any apparent reason why an affi-
davit at summary judgment would not be regarded
as a proper piece of new evidence such that the ex-
ception is satisfied. That is presumably why the
Fifth Circuit has accepted such affidavits as new
evidence in evaluating whether the law of the case
controls or not. See United States v. Horton, 622
F.2d 144, 148 (5th Cir.1980) (per curiam) (finding
that the law of the case did not preclude the entry of
summary judgment despite an earlier contrary rul-
ing “because the production of reports, admissions,
affidavits, and other record material during the
course of the proceedings had clarified and resolved
questions of material fact on several of the
[relevant] issues”).
*14 [20] It is true that previously-available
evidence often cannot be used to unsettle the law of
the case. See In re Antrobus, 563 F.3d at 1099
(“The difficulty is that the Antrobuses have not
demonstrated that they were unable to present evid-
ence along these very same lines over a year ago,
when this litigation began.”); United States v. Mon-
sisvais, 946 F.2d 114, 117 (10th Cir.1991) (“The
‘different or new evidence’ exception does not ap-
ply because ... the additional evidence provided by
the government at the supplemental hearing was
evidence it had in its possession, but failed to pro-
duce, at the time of the original hearing.”). But
neither Smith nor any other court clerk was a party
to the case at the time of Bishop I. Smith con-
sequently did not have an opportunity to introduce
the evidence earlier, and no party had any reason to
seek it out. As demonstrated by the quotes recited
above from Antrobus and Monsisvais, this previ-
ously-available-evidence bar is applied when the
party seeking to circumvent the law of the case had
a chance to introduce the evidence in the prior pro-
ceedings and failed to exploit that chance. See In re
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Antrobus, 563 F.3d at 1099 (“The difficulty is that
the Antrobuses have not demonstrated that they
were unable to present evidence along these very
same lines over a year ago, when this litigation
began.” (emphases added)); Monsisvais, 946 F.2d
at 117 (“The ‘different or new evidence’ exception
does not apply because ... the additional evidence
provided by the government at the supplemental
hearing was evidence it had in its possession, but
failed to produce, at the time of the original hear-
ing.” (emphases added)). That is not the case here.
Smith did not fail to do anything during Bishop I
because she was not participating in Bishop I. Ac-
cordingly, this bar does not apply, and Smith's affi-
davit does qualify as new evidence within the
meaning of the new-evidence exception to the law
of the case doctrine.
FN9
2
The next question is whether the affidavit
demonstrates a lack of standing. It does.
[21][22] Article III standing is a prerequisite to
every lawsuit in federal court. See Petrella v.
Brownback, 697 F.3d 1285, 1292–93 (10th
Cir.2012); Jackson v. Volvo Trucks N. Am., Inc.,
462 F.3d 1234, 1241 (10th Cir.2006). “Each
plaintiff must have standing to seek each form of
relief in each claim.” Bronson v. Swensen, 500 F.3d
1099, 1106 (10th Cir.2007); accord Meyer v.
Christie, 634 F.3d 1152, 1157 (10th Cir.2011). In
order to demonstrate “ Article III standing, a
plaintiff must show: (1) that [she] has suffered a
concrete and particular injury in fact that is either
actual or imminent; (2) the injury is fairly traceable
to the alleged actions of the defendant; and (3) the
injury will likely be redressed by a favorable de-
cision.” Kerr v. Hickenlooper, 744 F.3d 1156, 1163
(10th Cir.2014); accord S. Utah Wilderness Alli-
ance v. Palma, 707 F.3d 1143, 1153 (10th
Cir.2013). The issue at hand turns on the third re-
quirement—that of redressability—which “is not
met when a plaintiff seeks relief against a defendant
with no power to enforce a challenged statute.”
Bronson, 500 F.3d at 1111. As established by her
affidavit, that is the case with Smith and Part B.
*15 In the affidavit, Smith swore that she had
“no authority to recognize or record a marriage li-
cense issued by another state in any setting, regard-
less of whether the license was issued to an oppos-
ite-sex or a same-sex couple.” The plaintiffs have
offered nothing of substance to contradict that
statement.
FN10
With the new affidavit, the uncon-
troverted summary-judgment record shows that
Smith had no power to recognize the Barton
couple's out-of-state marriage, and therefore no
power to redress their injury.
FN11
Since Smith was
the only state defendant named in the operative
complaint, the Barton couple had no standing to sue
on their non-recognition claim. See Cressman, 719
F.3d at 1147 (finding that a plaintiff had no stand-
ing to sue a defendant because the plaintiff
“provided no basis to conclude that the district
court could order [the defendant] to do anything in
her official capacity to redress [the plaintiff's] al-
leged injuries”); Nova Health Sys. v. Gandy, 416
F.3d 1149, 1159 (10th Cir.2005) (dismissing a
claim in part for lack of redressability where a fa-
vorable “judgment would likely do nothing to pre-
vent [the harm], and thus would not be substantially
likely to redress [the plaintiff's] injury in fact”).
There are various potential counterarguments
that resist this conclusion, but they all fail.
First, an argument could be made that the Bar-
ton couple was entitled to sue Smith as the face of
the judiciary despite the undisputed fact that she
has no personal involvement in recognizing foreign
marriages. Granted, there are scenarios in which a
plaintiff is permitted to seek relief against a defend-
ant who would only be indirectly implicated in any
harm suffered by the plaintiff. Notably, however,
these scenarios frequently arise when a plaintiff
fearing prosecution sues a state attorney general
and other law enforcement officials to challenge a
criminal statute. See, e.g., Doe v. Bolton, 410 U.S.
179, 188–89 (1973); Wilson v. Stocker, 819 F.2d
943, 946–47 (10th Cir.1987). An attorney general is
the chief law enforcement officer of his or her juris-
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diction. See Mitchell v. Forsyth, 472 U.S. 511, 520,
105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). As such, he
or she is charged with enforcing all of the criminal
statutes on the books. See, e.g., Gandy, 416 F.3d at
1158. It is therefore logical to name that person in
his or her representative capacity when one is con-
cerned about a potential criminal prosecution. See
id. (“[A]n official who is charged with enforcing a
state statute on behalf of the entire state is a proper
defendant, so long as the plaintiff shows an appre-
ciable threat of injury flowing directly from the
statute.”).
It is less logical to sue a court clerk as the face
of a non-recognition regime. Far from being deleg-
ated the responsibility to enforce that regime, the
court clerk has a very tenuous relationship to the
non-recognition provision. To be sure, Oklahoma
courts apply the State's laws regarding the validity
of marriages. See Copeland v. Stone, 842 P.2d 754,
755 (Okla.1992) (deciding a case involving a pro-
hibition on remarriage within six months of di-
vorce); Mueggenborg v. Walling, 836 P.2d 112, 112
(Okla.1992) (deciding a case involving the exist-
ence vel non of a common-law marriage); Allen v.
Allen (In re Estate of Allen), 738 P.2d 142, 143
(Okla.1987) (deciding a case posing the question of
whether a marriage had been properly dissolved for
estate-distribution purposes); see also Oral Arg. at
15:08–29 (pointing out that Oklahoma's judicial
branch makes the “ultimate determination” of mar-
riage validity with respect to matters like divorce,
child custody, inheritance, and bigamy). But all
laws are applied by the courts, and all laws are ulti-
mately given their binding meaning by the judi-
ciary. See Clajon Prod. Corp. v. Petera, 70 F.3d
1566, 1571 n. 9 (10th Cir.1995) (“ ‘[I]t is, emphat-
ically, the province and duty of the judicial depart-
ment to say what the law is.’ “ (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60
(1803))). If the judiciary's responsibility to interpret
Part B when disputes over its meaning arose were
enough to confer standing, one could always sue
the court clerk in any challenge to any state law.
Standing, “perhaps the most important of the Art-
icle III justiciability doctrines,” id. at 1572, would
then become little more than an empty formality,
easily satisfied in every case.
*16 The plaintiffs seek standing, moreover, on
the basis of their bald assertion that Smith is stat-
utorily responsible for deciding whether to recog-
nize out-of-state marriages in the sense that if a
couple with an out-of-state marriage attempts to ob-
tain an Oklahoma marriage license, Smith's office
ascertains whether the out-of-state marriage is valid
for purposes of determining whether the couple is
qualified to receive an Oklahoma license. At oral
argument, counsel for the plaintiffs elaborated on
the point, explaining that if the ban is nullified in
this litigation, same-sex couples in Oklahoma who
were validly married in other states, like the Barton
couple, would seek Oklahoma marriage licenses,
and the court clerks would then determine the
validity of those foreign marriages. This, however,
is a strained argument. And, in light of the burden
that the plaintiffs were obliged to carry at the sum-
mary-judgment stage, it is patently unavailing.
The Smith affidavit was presented to the dis-
trict court as an attachment to her motion for sum-
mary judgment. To show standing on non-
recognition in the face of Smith's unequivocal dis-
avowal of any involvement in marriage recognition,
the plaintiffs were not entitled in responding to the
affidavit to depend on “ ‘mere allegations' “ regard-
ing standing; rather, they were required to “ ‘set
forth’ by affidavit or other evidence ‘specific facts,’
which for purposes of the summary judgment mo-
tion will be taken to be true .” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992) (citation omitted) (quoting
Fed.R.Civ.P. 56(e)); accord Bronson, 500 F.3d at
1111 n. 10.
FN12
Despite Smith's affidavit, the
plaintiffs produced no such evidence indicating that
Smith would in fact inquire into the validity of their
California marriage in the event they sought an Ok-
lahoma license, and no evidence that they ever even
intended to seek an Oklahoma marriage license. In
short, they produced no evidence generating even a
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possibility that Smith would ever be called upon to
evaluate the validity of their California marriage.
Even assuming that the Barton couple had
sought a marriage license from Smith, or intended
to do so, it is implausible to imagine that Smith
would have inquired into the validity of their Cali-
fornia marriage. Looking at the state of the world at
the time the suit was filed, as the law instructs, see
Jordan v. Sosa, 654 F.3d 1012, 1019 (10th
Cir.2011); Utah Ass'n of Cntys. v. Bush, 455 F.3d
1094, 1099 (10th Cir.2006), the standing inquiry
must be predicated on the existence of a valid ban
on same-sex marriage in Oklahoma. If the Barton
couple had sought an Oklahoma marriage license in
the face of the ban, it would have been odd, to say
the least, for Smith to investigate the validity of
their California marriage rather than denying them
a license outright pursuant to the unambiguous
mandate of a law that she was duty-bound to fol-
low. That being the case, the plaintiffs have no be-
lievable hypothetical under which Smith would
even be considering the validity of the Barton
couple's marriage, and hence no believable hypo-
thetical rendering her a source of relief for their
non-recognition injury. This theory is simply too
conjectural to warrant a finding of redressability.
See Kerr, 744 F.3d at 1171 (reiterating that “an in-
jury is redressable if a court concludes it is ‘likely,
as opposed to merely speculative, that the injury
will be redressed by a favorable decision.’ “
(quoting Lujan, 504 U.S. at 561)); accord Petrella,
697 F.3d at 1294.
*17 There are other state officials with a much
closer and more concrete relationship to the with-
holding of recognition than any courthouse staff,
including Smith. The most salient example lies in
the area of taxation. In Oklahoma, the Tax Com-
mission presides over the State's tax system. See
Okla. Stat. tit. 68, § 203. One of the Commission's
responsibilities is to accept or deny joint tax returns
mailed in by couples. See Grasso v. Okla. Tax
Comm'n, 249 P.3d 1258, 1261 (Okla.Civ.App.2011)
. With that scheme in place, a non-recognition
plaintiff could file a joint tax return, have that
status denied, and then sue the members of the Tax
Commission. See, e.g., Baskin v. Bogan, –––
F.Supp.2d ––––, 2014 U.S. Dist. LEXIS 86114, at *
15, *50 (S.D.Ind.2014) (finding the commissioner
of the state department of revenue a proper party
and ordering him to permit same-sex couples to file
joint tax returns); cf. Rott v. Okla. Tax Comm'n, No.
CIV–13–1041–M, 2014 U.S. Dist. LEXIS 77173, at
*2–4 (W.D. Okla. June 6, 2014) (describing an ac-
tion brought against, inter alia, members of the Ok-
lahoma Tax Commission for wrongfully assessing
and attempting to collect income taxes from the
plaintiff in violation of his federal constitutional
rights).
Other equally straightforward paths to redress-
ability are easy enough to imagine, and several
have in fact been taken in similar challenges being
litigated elsewhere. See, e.g., Tanco v. Haslam, –––
F.Supp.2d ––––, 2014 U.S. Dist. LEXIS 33463, at
*9, *33–34 (M.D.Tenn.2014) (sustaining a non-
recognition challenge where the plaintiffs sued the
commissioner of the department of finance and ad-
ministration after they were prevented from using a
family health insurance plan provided by a public
university); Bostic v. Rainey, 970 F.Supp.2d 456,
461–63, 484 (E.D.Va.2014) (sustaining a non-
recognition challenge where the plaintiffs sued the
state registrar of vital records to obtain a birth certi-
ficate so that they could legally adopt the daughter
they raise together); Obergefell v. Wymyslo, 962
F.Supp.2d 968, 972–73, 1000 (S.D.Ohio 2013)
(sustaining a non-recognition challenge where the
plaintiffs sued the director of the state department
of health to obtain a death certificate listing the
couple as married).
FN13
The distinction between Smith and a proper de-
fendant, moreover, is not a distinction between dis-
cretionary decisions enforcing the non-recognition
provision and ministerial decisions doing so. In all
relevant respects, a tax commissioner's decision to
withhold joint-filing status is, as a practical matter,
just as ministerial as Smith's decision to withhold
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recognition. Both officials are responsible for faith-
fully applying Oklahoma law, and Oklahoma law
clearly instructs both of them to withhold marital
status from same-sex couples. If the Barton couple
had expressed a wish to file joint taxes and named a
tax official responsible for authorizing that filing,
there would be no doubt that a court order to the of-
ficial would remedy the couple's non-recognition
injury: the official would then accept the joint re-
turn. See Baskin, 2014 U.S. Dist. LEXIS 86114, at
*15, *50 (finding the commissioner of the state de-
partment of revenue a proper party and ordering
him to permit same-sex couples to file joint tax re-
turns). There is no analogue with respect to Smith.
The supposition that Smith will have any specific
involvement in recognizing or declining to recog-
nize the Barton couple's marriage lacks any demon-
strated foundation in the record or in Oklahoma
law.
FN14
*18 Unable to demonstrate standing on their
principal non-recognition injury—the refusal of the
State to recognize their marriage—the plaintiffs
seek to rely upon a different injury. Specifically,
the plaintiffs insist they have standing because “the
injury of shutting the state courthouse doors on
Plaintiffs—on top of the injuries of ... non-
recognition—would be redressed by an injunction
against [Part B].” As Smith correctly points out,
though, the Barton couple did not challenge Part B
on the grounds that it foreclosed their right to ac-
cess the state court system. Rather, they challenged
it on the grounds that it violated their equal-
protection and due-process rights to have their mar-
riage recognized. Crucially, the district court never
heard a contention from the Barton couple that Part
B visited upon them an access-to-the-courts injury,
FN15
and it was their obligation to show standing.
See Kerr, 744 F.3d at 1163; Petrella, 697 F.3d at
1293. The district court could not have entertained
jurisdiction over a claim on the basis of redressabil-
ity for an injury that the Barton couple never al-
leged.
In sum, the Barton couple had no standing to
sue, and the district court properly dismissed their
non-recognition challenge as a result.
C
In a final attempt to nullify Part B along with
Part A, the plaintiffs submit—for the first time on
appeal—that the non-recognition provision must be
struck down under severability law as soon as the
ban is struck down, no matter whether there was
standing to challenge the non-recognition provision
or not. For her part, Smith asks for a finding that
the plaintiffs forfeited their severability theory by
failing to raise it in the district court. The plaintiffs
do not deny that they omitted the argument from
their summary-judgment filings, and a review of
those filings finds no trace of severability doctrine.
Nevertheless, the plaintiffs request that we take ac-
count of severability if the ban falls, regardless of
the issue's preservation, because—in their view—a
severability analysis is required whenever a court
declares invalid part of an enactment.
[23][24] At the outset, it is necessary to de-
termine the controlling source of law. The question
of whether an unconstitutional provision of state
law is severable from the remainder of the enact-
ment is a matter of state law. See Leavitt v. Jane L.,
518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d
443 (1996) (per curiam); accord Am. Target Adver.,
Inc. v. Giani, 199 F.3d 1241, 1250 (10th Cir.2000).
So too is the question of whether a severability ana-
lysis is triggered in the first place by the facts of the
case, i.e., whether the type of judicial ruling at issue
calls for a severability inquiry. See Local 514
Transp. Workers Union of Am. v. Keating, 66 F.
App'x 768, 779 (10th Cir.2003) (certifying to the
Oklahoma Supreme Court the question of whether
severability analysis applied to certain state consti-
tutional provisions if they were declared preempted
by federal law); Local 514 Transp. Workers Union
of Am. v. Keating, 83 P.3d 835, 839 (Okla.2003)
(answering that severability analysis would not ap-
ply and holding that “whether to apply severability
analysis ... [was] a matter of state law”); see also
Local 514 Transp. Workers Union of Am. v. Keat-
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ing, 358 F.3d 743, 744 n. 1 (10th Cir.2004)
(subsequently deciding the appeal on the basis of
the Oklahoma Supreme Court's answer and incor-
porating the certification into the published opin-
ion).
*19 Unlike substantive severability law,
though, the matter of whether an argument has been
forfeited by a party's failure to raise it in the district
court is decided by federal procedural law. That
proposition is underscored by the fact that when we
have found an argument forfeited by its omission in
district court proceedings in a diversity
case—where we are applying substantive state
law—we have supported our forfeiture ruling with
citations to Tenth Circuit decisions that are either
applying substantive federal law or the substantive
law of a different state. See, e.g., Elm Ridge Explor-
ation Co. v. Engle, 721 F.3d 1199, 1213 (10th
Cir.2013); Brecek & Young Advisors, Inc. v. Lloyds
of London Syndicate 2003, 715 F.3d 1231, 1234 n.
1 (10th Cir.2013); Emp'rs Mut. Cas. Co. v. Bartile
Roofs, Inc., 618 F.3d 1153, 1176 n. 20 (10th
Cir.2010).
More relevant to the case at bar, in Awad v.
Ziriax, 670 F.3d 1111, 1132 n. 16 (10th Cir.2012),
we applied a federal approach to a highly analogous
situation. In Awad, a popular vote approved a pro-
posal to add to the state constitution a provision
that included, inter alia, language forbidding Ok-
lahoma courts from considering Sharia law in ren-
dering their decisions. Id. at 1117–18. The district
court issued a preliminary injunction, ordering state
officials not to certify the election result until the
court had ruled on the merits of a federal constitu-
tional challenge to the proposed amendment.
Awad v. Ziriax, 754 F.Supp.2d 1298, 1308
(W.D.Okla.2010). On appeal, we affirmed the pre-
liminary injunction. Awad, 670 F.3d at 1133. We
attached the following footnote to the end of our
substantive analysis:
Appellants raised the issue of severability of the
Sharia law portions of the amendment for the
first time to this court in post-oral argument sup-
plemental briefing. Their argument consisted of
one sentence and cited no authority, stating that if
this court decides the Sharia law provisions in the
amendment render the amendment invalid, “the
court should simply treat the explicatory example
as surplusage, and strike it.” Because this issue
has not been adequately briefed, we do not ad-
dress it. See United States v. Cooper, 654 F.3d
1104, 1128 (10th Cir.2011).
Id. at 1132 n. 16. In other words, in a federal
constitutional challenge to an Oklahoma constitu-
tional provision, we upheld, at least preliminarily, a
decision striking down the provision and declined
to consider severability because of a failure to ad-
equately preserve the issue for re-
view—specifically, a waiver of the issue through
deficient briefing. The Awad footnote is only ex-
plicable if an appellate court has no inherent oblig-
ation to consider severability sua sponte, as it
would with, say, a jurisdictional issue. See, e.g.,
United States v. Ramos, 695 F.3d 1035, 1046 (10th
Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct.
912, 184 L.Ed.2d 701 (2013); Columbian Fin.
Corp. v. BancInsure, Inc., 650 F.3d 1372, 1375–76
(10th Cir.2011).
*20 [25] As in Awad, this court is upholding
here a decision striking down a provision of the Ok-
lahoma Constitution on federal constitutional
grounds, and, as in Awad, the litigant failed to ad-
equately preserve the issue for review—this time,
by effecting a forfeiture through failure to present
the issue to the district court. There is no apparent
reason why the result the court reached in Awad
should not be the same here. In other words, the
same principle should have equal purchase in the
forfeiture context: if there is no obligation to con-
sider severability sua sponte where it has been
waived,
FN16
there is no obligation to consider it
where it has been forfeited.
[26][27] Having thus resolved the issue of
whether in a forfeiture context the court is oblig-
ated to consider severability, “the decision regard-
ing what issues are appropriate to entertain on ap-
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peal in instances of lack of preservation is discre-
tionary.” Abernathy v. Wandes, 713 F.3d 538, 552
(10th Cir.2013), cert. denied, ––– U.S. ––––, 134
S.Ct. 1874, –––L.Ed.2d –––– (2014). Waiver
through appellate-briefing omission and forfeiture
through silence before the district court are admit-
tedly distinct failures of preservation, and arguably
there is more discretionary leeway to consider is-
sues not preserved under the latter (forfeiture) than
the former (appellate-briefing waiver). See Richison
v. Ernest Grp., Inc., 634 F.3d 1123, 1128–30 (10th
Cir.2011) (exploring the distinction between for-
feiture and waiver, including waiver through omis-
sions in appellate briefs); see also United States v.
McGehee, 672 F.3d 860, 873 (10th Cir.2012) (“
‘Unlike waived theories, we will entertain forfeited
theories on appeal....’ “ (quoting Richison, 634 F.3d
at 1128)). However, where a litigant attempts to
rely upon a forfeited theory, “ ‘the failure to argue
for plain error and its application on appeal ...
surely marks the end of the road for an argument
for reversal not first presented to the district court.’
“ United States v. Lamirand, 669 F.3d 1091, 1100
n. 7 (10th Cir.2012) (omission in original) (quoting
Richison, 634 F.3d at 1131). The plaintiffs are at
the end of the road here.
[28] In essence, in arguing for reversal, the
plaintiffs are asserting that the district court erred in
refusing to enjoin Part B in addition to Part A under
severability law, despite their alleged lack of stand-
ing to challenge the former. They offer no explana-
tion as to how the district court plainly erred in this
regard.
FN17
In fact, the plaintiffs' only response to
Smith's forfeiture argument is that a severability
theory is not susceptible to forfeiture. As noted
above, that is incorrect—pursuant to Awad, the
plaintiffs could in fact forfeit their severability ar-
gument, and they did.
FN18
Therefore, absent any
argument by the plaintiffs for plain error, much less
a cogent one, it is appropriate to decline to exercise
the court's discretion to hear this forfeited severab-
ility issue.
To recapitulate, a severability theory can be
forfeited, the plaintiffs' severability theory was for-
feited, and the plaintiffs supply no argument for
overlooking the forfeiture. As a consequence, they
are not entitled to the benefit of any severability
analysis, and the district court's dismissal of the
challenge to Part B must be affirmed.
FN19
*21 That the non-recognition claim is doomed
to dismissal may seem a harsh result. The Barton
couple first challenged Part B almost ten years ago.
After the first appeal, the plaintiffs fairly under-
stood Bishop I as a directive instructing them to
name Smith as the lone defendant for all of their
grievances. It was reasonable of the Barton couple
to follow that perceived directive, and it is regret-
table that their compliance has resulted in a lack of
standing, especially after nearly a decade of com-
plex, time-consuming, and no doubt emotional lit-
igation.
No matter how compelling the equitable argu-
ments for reaching the merits of the non-re-
cognition claim, however, its fate must be determ-
ined by the law, and the law demands dismissal.
The frustration that may be engendered by the
court's disposition today should be tempered,
however. Although it would not be appropriate to
definitively opine on the matter, it is fair to surmise
that the court's decision in Kitchen casts serious
doubt on the continuing vitality of Part B. See 2014
U.S.App. LEXIS 11935, at *4 (“A state may not ...
refuse to recognize [a] marriage ... based solely
upon the sex of the persons in the marriage uni-
on.”).
IV
For the foregoing reasons, we AFFIRM. We
STAY our mandate pending the disposition of any
subsequently-filed petition for writ of certiorari.
See Fed. R.App. P. 41(d)(2); see also Kitchen, 2014
U.S.App. LEXIS 11935, at *97–98.
HOLMES, Circuit Judge, concurring.
In upholding the district court's substantive rul-
ing in this case, the majority concludes that Ok-
lahoma's same-sex marriage ban—found in SQ 711
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FN1
—impermissibly contravenes the fundamental
right to marry protected by the Due Process and
Equal Protection Clauses of the Constitution. I fully
agree with that conclusion and endorse without re-
servation the reasoning of the majority on this mat-
ter.
FN2
I write here, however, to focus on one signific-
ant thing that the district court wisely did not do in
rendering its substantive ruling on the same-sex
marriage ban. Specifically, the district court de-
clined to rely upon animus doctrine in striking
down SQ 711. See Bishop v. U.S. ex rel. Holder,
962 F.Supp.2d 1252, 1285 n. 32 (N.D.Okla.2014).
Most of the other recent judicial decisions invalid-
ating same-sex marriage laws have exercised the
same forbearance.
FN3
However, several district
court decisions from other jurisdictions have taken
a different tack and suggested that similar laws may
suffer from unconstitutional animus. See Baskin v.
Bogan, –––F.Supp.2d ––––, 2014 WL 2884868, at
*14 (S.D.Ind.2014); Henry v. Himes, –––F.Supp.2d
––––, 2014 WL 1418395, at *6 (S.D.Ohio 2014);
De Leon v. Perry, 975 F.Supp.2d 632, 655
(W.D.Tex.2014); Obergefell v. Wymyslo, 962
F.Supp.2d 968, 995–96 (S.D.Ohio 2013). This con-
currence endeavors to clarify the relationship
between animus doctrine and same-sex marriage
laws and to explain why the district court made the
correct decision in declining to rely upon the anim-
us doctrine.
*22 I will begin by setting forth the contours of
the animus doctrine as those contours have been
drawn by the Supreme Court's case law. Then, I
will elucidate why SQ 711 falls outside of those
boundaries and why it is consequently free from
impermissible animus.
I
To understand why animus doctrine is not dis-
positive in this appeal, one must understand three
basic features of the doctrine: (1) what is animus;
(2) how is it detected; and (3) what does a court do
once it is found. I will address each question in
turn, before applying the answers to the case at bar.
A
Beginning with first principles, when a state
law is challenged on equal-protection grounds, and
when that law does not implicate a fundamental
right, a federal court ordinarily decides what type
of analysis to apply on the basis of what sort of
characteristic the State is using to distinguish one
group of citizens from another. If the law uses a
suspect classification, like race, strict scrutiny ap-
plies. See Johnson v. California, 543 U.S. 499,
505–06, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005);
Riddle v. Hickenlooper, 742 F.3d 922, 927 (10th
Cir.2014). If the law uses a quasi-suspect classifica-
tion, like gender, intermediate scrutiny applies. See
United States v. Virginia, 518 U.S. 515, 532–33,
116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Save Pal-
isade FruitLands v. Todd, 279 F.3d 1204, 1210
(10th Cir.2002). For all other classifications, ration-
al-basis review is typically appropriate. See Armour
v. City of Indianapolis, ––– U.S. ––––, 132 S.Ct.
2073, 2079–80, 182 L.Ed.2d 998 (2012); Brown v.
Montoya, 662 F.3d 1152, 1172 (10th Cir.2011).
The animus cases depart from this well-trod
path. In those cases, the Supreme Court took up
equal-protection challenges to government action
that distinguished between people on the basis of
characteristics that the Court had not deemed sus-
pect or quasi-suspect. See Romer v. Evans, 517 U.S.
620, 624, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)
(describing the challenged law as classifying on the
basis of sexual orientation); City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 436–37, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985) (describing the
challenged law as classifying on the basis of intel-
lectual disability); U.S. Dep't of Agric. v. Moreno,
413 U.S. 528, 530, 93 S.Ct. 2821, 37 L.Ed.2d 782
(1973) (describing the challenged law as classifying
between households where the members were re-
lated to one another and households where they
were not
FN4
); see also Massachusetts, 682 F.3d at
10 (“In [Moreno, Cleburne, and Romer], the Su-
preme Court has now several times struck down
state or local enactments without invoking any sus-
pect classification.”). Because the classifications at
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issue in the animus line of cases did not involve
suspect or quasi-suspect groups, one would have
expected the Court to consider the laws under con-
ventional rational-basis review. See Armour, 132
S.Ct. at 2079–80; Brown, 662 F.3d at 1172. But
that was not what happened.
In the run-of-the-mill rational-basis case, the
Court asks whether the litigant challenging the state
action has effectively “negative[d] ‘any reasonably
conceivable state of facts that could provide a ra-
tional basis for the classification.’ “ Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121
S.Ct. 955, 148 L.Ed.2d 866 (2001) (emphasis ad-
ded) (quoting Heller v. Doe ex rel. Doe, 509 U.S.
312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993))
(internal quotation marks omitted); accord Ebonie
S. ex rel. Mary S. v. Pueblo Sch. Dist. 60, 695 F.3d
1051, 1059 (10th Cir.2012) (parroting Supreme
Court precedent in noting that we must uphold a
law on rational-basis review if “there is any reason-
ably conceivable state of facts that could provide a
rational basis for [the classification]” (quoting
Copelin–Brown v. N.M. State Pers. Office, 399 F.3d
1248, 1255 (10th Cir.2005)) (internal quotation
marks omitted)), cert. denied, ––– U.S. ––––, 133
S.Ct. 1583, 185 L.Ed.2d 577 (2013). Defying ex-
pectations, the Supreme Court in the animus cases
did not pose that broad question.
*23 Rather than relying upon the various post-
hoc rationalizations that could conceivably have
justified the laws, the Court focused on the motiva-
tions that actually lay behind the laws. See Romer,
517 U.S. at 634 (emphasizing that the challenged
law was “born of animosity toward the class of per-
sons affected” (emphasis added)); Cleburne, 473
U.S. at 450 (remarking that the challenged law “
rest[ed] on an irrational prejudice against the
[intellectually disabled]” (emphasis added));
Moreno, 413 U.S. at 534 (noting that “[t]he legis-
lative history [of the challenged law] indicate[d]
that th[e] amendment was intended to prevent so
called ‘hippies' and ‘hippie communes' from parti-
cipating in the food stamp program” (emphasis ad-
ded)); see also Am. Express Travel Related Servs.
Co. v. Kentucky, 641 F.3d 685, 692 (6th Cir.2011)
(“In each of the [animus cases], the Supreme Court
... concluded that the legislation at issue was in fact
intended to further an improper government object-
ive.” (emphasis added)).
Since the animus cases dealt with non-suspect
groups, and yet did not invoke the rational-basis
test in its classic form, the jurisprudence does not
fit easily into the tiers of scrutiny that attach to
most equal-protection claims. As a result, the type
of review used in the animus decisions has been
given a number of different labels. Sometimes the
cases are simply lumped together with all other ra-
tional-basis cases. See, e.g., Price–Cornelison v.
Brooks, 524 F.3d 1103, 1113 n. 9 (10th Cir.2008)
(interpreting Romer as a rational-basis case). Some-
times the animus cases are said to apply
“heightened rational-basis review,” see, e.g., Klein-
smith v. Shurtleff, 571 F.3d 1033, 1048 (10th
Cir.2009), or—more colorfully—“rational basis
with bite,” see, e.g., Kenji Yoshino, The New Equal
Protection, 124 Harv. L.Rev. 747, 760 (2011),
“rational basis with teeth,” see, e.g., Michael E.
Waterstone, Disability Constitutional Law, 63
Emory L.J. 527, 540 (2014) (internal quotation
marks omitted), or “rational basis plus,” see, e.g.,
Marcy Strauss, Reevaluating Suspect Classifica-
tions, 35 Seattle U.L.Rev. 135, 135 n.5 (2011)
(internal quotation marks omitted).
For present purposes, it is of no moment what
label is affixed to the distinctive equal-protection
mode of analysis that is performed in the animus
cases. What is important is to know when and how
to conduct that analysis. As suggested above, the
hallmark of animus jurisprudence is its focus on ac-
tual legislative motive. In the interest of analytical
precision, it is important to clarify exactly what
types of legislative motive may be equated with an-
imus. Those motives could be viewed as falling
somewhere on a continuum of hostility toward a
particular group.
FN5
See Black's Law Dictionary
806 (9th ed.2009) (defining “hostile,” in the relev-
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ant entry, as “[a]ntagonistic; unfriendly”); New Ox-
ford American Dictionary 818 (2d ed.2005)
(defining “hostile,” in the relevant entries, as
“unfriendly; antagonistic,” and “opposed”); Web-
ster's Third New International Dictionary 1094
(2002) (defining “hostile,” in the relevant entries,
as “marked by antagonism or unfriendliness,”
“marked by resistance esp[ecially] to new ideas,”
and “unfavorable esp[ecially] to the new or
strange”).
*24 On the weaker end of the continuum, a le-
gislative motive may be to simply exclude a partic-
ular group from one's community for no reason oth-
er than an “irrational prejudice” harbored against
that group. Cleburne, 473 U.S. at 450. In this sense,
animus may be present where the lawmaking au-
thority is motivated solely by the urge to call one
group “other,” to separate those persons from the
rest of the community (i.e., an “us versus them”
legal construct). See Romer, 517 U.S. at 635
(invalidating “a classification of persons under-
taken for its own sake, something the Equal Protec-
tion Clause does not permit”); Cleburne, 473 U.S.
at 448 (“[M]ere negative attitudes, or fear, unsub-
stantiated by factors which are properly cognizable
in a zoning proceeding, are not permissible bases
for treating a home for the [intellectually disabled]
differently from apartment houses, multiple dwell-
ings, and the like.”); see also Bowers v. NCAA, 475
F.3d 524, 554 (3d Cir.2007) (interpreting Cleburne
as prohibiting the construction of “a caste system”).
On the more extreme end of the continuum, the le-
gislative motive that implicates the animus doctrine
may manifest itself in a more aggressive
form—specifically, a “ desire to harm a politically
unpopular group.” Moreno, 413 U.S. at 534
(emphasis added). At either end of this continuum,
and everywhere in between, at its core, legislative
motivation of this sort involves hostility to a partic-
ular group and, consequently, implicates the animus
doctrine.
B
Having settled the question of what constitutes
animus, there remains the question of how one
knows when one has found it. As explained in the
following sections, the animus cases instruct us to
explore challenged laws for signs that they are, as a
structural matter, aberrational in a way that advant-
ages some and disadvantages others. Two types of
structural aberration are especially germane here:
(1) laws that impose wide-ranging and novel
deprivations upon the disfavored group; and (2)
laws that stray from the historical territory of the
lawmaking sovereign just to eliminate privileges
that a group would otherwise receive.
FN6
These
two rough categories of structural unusualness are
neatly underscored by the Supreme Court's two
most recent statements on equal-protection law in
the arena of sexual orientation: Romer and Wind-
sor.
FN7
Both will be considered in detail below.
1
The first species of structural irregularity relat-
ing to the type of harm inflicted upon the injured
class is powerfully captured by Romer. There, the
Supreme Court struck down a Colorado constitu-
tional amendment that prohibited all state entities
from promulgating civil-rights protections specific-
ally designated for homosexuals (or bisexuals) in
any context. Romer, 517 U.S. at 635. The Court
was moved to do so by the fact that the
“disadvantage imposed [was] born of animosity to-
ward the class of persons affected.” Id. at 634. That
is to say, animus entered the stage in Romer for the
principal reason that the constitutional amendment
before the Court was strikingly pervasive in ob-
structing homosexuals from obtaining any specially
designated civil-rights protections whatsoever. See
id. at 627 (“Sweeping and comprehensive is the
change in legal status effected by this law .”); id. at
632 (“[T]he amendment has the peculiar property
of imposing a broad and undifferentiated disability
on a single named group ....”); id. at 633
(“Amendment 2 ... identifies persons by a single
trait and then denies them protection across the
board.”). That sort of blanket burdening of a group
and its rights, the Court cautioned, was unheard of
and, as a consequence, inherently suspicious. See
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id. at 633 (“The resulting disqualification of a class
of persons from the right to seek specific protection
from the law is unprecedented in our jurispru-
dence.”); id. (“It is not within our constitutional tra-
dition to enact laws of this sort.”). Stated differ-
ently, Romer applied the animus doctrine because a
State had passed a law that pervasively constricted
the rights of a group in a way that few, if any, laws
had previously done. Cf. Equality Found. of Great-
er Cincinnati, Inc. v. City of Cincinnati, 128 F.3d
289, 299 (6th Cir.1997) (“[T]he Romer majority's
rejection of rational relationship assessment hinged
upon the wide breadth of Colorado Amendment 2,
which deprived a politically unpopular minority of
the opportunity to secure special rights at every
level of state law.”).
2
*25 The second species of structural irregular-
ity is on display in Windsor. Specifically, prior to
passage of DOMA, Congress had deferred to the
States' definitional authority over marriage, an au-
thority they enjoyed as part of their traditional po-
lice power in the domestic-relations sphere. See
Windsor, 133 S.Ct. at 2691 (depicting family law as
“an area that has long been regarded as a virtually
exclusive province of the States” (internal quotation
marks omitted)); id. (“The definition of marriage is
the foundation of the State's broader authority to
regulate the subject of domestic relations ....”); id.
(“[T]he states, at the time of the adoption of the
Constitution, possessed full power over the subject
of marriage and divorce ....“ (alteration in original)
(internal quotation marks omitted)). DOMA repres-
ented a radical departure from that tradition, and it
was that departure that brought animus concerns to
the fore in Windsor:
When the State used its historic and essential au-
thority to define the marital relation in this way,
[i.e., to allow same-sex marriage,] its role and its
power in making the decision enhanced the re-
cognition, dignity, and protection of the class in
their own community. DOMA, because of its
reach and extent, departs from this history and
tradition of reliance on state law to define mar-
riage. “[D]iscriminations of an unusual character
especially suggest careful consideration to de-
termine whether they are obnoxious to the consti-
tutional provision.”
Id. at 2692 (second alteration in original)
(quoting Romer, 517 U.S. at 633) (internal quota-
tion marks omitted). Shortly thereafter in Windsor,
the Supreme Court drove the same point home:
The responsibility of the States for the regulation
of domestic relations is an important indicator of
the substantial societal impact the State's classi-
fications have in the daily lives and customs of
its people. DOMA's unusual deviation from the
usual tradition of recognizing and accepting state
definitions of marriage here operates to deprive
same-sex couples of the benefits and responsibil-
ities that come with the federal recognition of
their marriages. This is strong evidence of a law
having the purpose and effect of disapproval of
that class.
Id. at 2693 (emphasis added). With these pas-
sages, the Court left no doubt that the animus doc-
trine was relevant to the disposition of the case be-
cause the federal government had gone beyond the
federalism pale and intruded into a province histor-
ically monopolized by the States, and, what is
more, that the federal government had done so
solely to restrict the rights that would have other-
wise been afforded to gay and lesbian individuals.
See Conkle, supra, at 40 (interpreting the federal-
ism concerns in Windsor as “directly linked to [the
Court's] animus rationale”).
C
When a litigant presents a colorable claim of
animus, the judicial inquiry searches for the forego-
ing clues. What happens when the clues are all
gathered and animus is detected? The answer is
simple: the law falls. Remember that under ration-
al-basis review, the most forgiving of equal-
protection standards, a law must still have a legit-
imate purpose. See Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 84, 120 S.Ct. 631, 145 L.Ed.2d 522
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(2000) (explaining that “when conducting rational
basis review we will not overturn such [government
action] unless the varying treatment of different
groups or persons is so unrelated to the achieve-
ment of any combination of legitimate purposes
that we can only conclude that the [government's]
actions were irrational” (alterations in original)
(internal quotation marks omitted)); United States
v. Angelos, 433 F.3d 738, 754 (10th Cir.2006) (“To
pass muster under the rational basis test, [the stat-
ute] must have a legitimate purpose .... “ (internal
quotation marks omitted)). A legislative motive
qualifying as animus is never a legitimate purpose.
See Romer, 517 U.S. at 632 (“[T]he amendment
seems inexplicable by anything but animus toward
the class it affects; it lacks a rational relationship to
legitimate state interests.”); Cleburne, 473 U.S. at
448 (“[M]ere negative attitudes, or fear, ... are not
permissible bases for [a statutory classification].”);
Moreno, 413 U.S. at 534 (“[The] amendment was
intended to prevent socalled ‘hippies' and ‘hippie
communes' from participating in the food stamp
program,” and such “a bare congressional desire to
harm a politically unpopular group cannot consti-
tute a legitimate governmental interest.”). In other
words, once animus is detected, the inquiry is over:
the law is unconstitutional.
*26 This fearsome quality of animus jurispru-
dence has led one commentator to refer to it, most
aptly, as “a doctrinal silver bullet.” Pollvogt, supra,
at 889. Conversely, if animus is not properly in-
voked—viz., if the clues do not add up to a picture
of hostile lawmaking—the analysis returns to the
traditional rational-basis realm and the Court com-
mences a more generous search for “any reasonably
conceivable state of facts that could provide a ra-
tional basis for the classification.” Garrett, 531
U.S. at 367 (emphasis added) (internal quotation
marks omitted); accord Ebonie S., 695 F.3d at 1059
.
II
Armed with these background principles, I am
now well-situated to examine how animus oper-
ates—or does not—in the context of the instant ap-
peal.
To review, ordinarily, a law falls prey to anim-
us only where there is structural evidence that it is
aberrational, either in the sense that it targets the
rights of a minority in a dangerously expansive and
novel fashion, see Romer, 517 U.S. at 631–35, or in
the sense that it strays from the historical territory
of the lawmaking sovereign just to eliminate priv-
ileges that a group would otherwise receive, see
Windsor, 133 S.Ct. at 2689–95. The Oklahoma law
at issue before us today is aberrational in neither re-
spect. In fact, both considerations cut strongly
against a finding of animus.
FN8
A
To begin, SQ 711 is not nearly as far-reaching
as the state constitutional amendment that Romer
invalidated. The amendment taken up by Romer
forbade any unit of state government from extend-
ing to gay and lesbian persons any special priv-
ileges or protections. See 517 U.S. at 624 (reciting
the language of the amendment); see also id. at 632
(“[T]he amendment has the peculiar property of im-
posing a broad and undifferentiated disability on a
single named group ....”); id. at 633 (“Amendment
2 ... identifies persons by a single trait and then
denies them protection across the board.”). SQ 711
cannot plausibly be painted with this brush. Unlike
the amendment in Romer, SQ 711 does not deprive
homosexuals of civil-rights “protection across the
board,” id. at 633, in a “[s]weeping and compre-
hensive” fashion, id. at 627. It excludes them from
a single institution: marriage. For animus purposes,
SQ 711 is an exclusion of a much different charac-
ter than the Colorado amendment in Romer, which
shut the door for homosexuals on myriad rights to
which they might otherwise have gained access
through the political process.
Furthermore, any fair historical narrative belies
the theory that SQ 711 is “unprecedented in our jur-
isprudence.” Id. at 633. Explicit bans on same-sex
marriage are not especially venerable, but neither
are they in their infancy. See Nancy Kubasek et al.,
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Amending the Defense of Marriage Act: A Neces-
sary Step Toward Gaining Full Legal Rights for
Same–Sex Couples, 19 Am. U.J. Gender Soc. Pol'y
& L. 959, 964 n.32 (2011) (“Maryland became the
first state to define marriage as between a man and
a woman in 1973....”).
*27 More to the point, SQ 711 and parallel en-
actments have only made explicit a tacit rule that
until recently had been universal and unquestioned
for the entirety of our legal history as a country:
that same-sex unions cannot be sanctioned as mar-
riages by the State. See Windsor, 133 S.Ct. at 2689
(“[M]arriage between a man and a woman no doubt
had been thought of by most people as essential to
the very definition of that term and to its role and
function throughout the history of civilization.”).
Even before the States made the rule explicit, mar-
riage laws that lacked express gender limitations
had the same force and effect as bans on same-sex
marriage. See Dean v. District of Columbia, 653
A.2d 307, 310 (D.C.1995) (Ferren, J., concurring in
part and dissenting in part, joined by Terry and
Steadman, JJ.); Jones v. Hallahan, 501 S.W.2d 588,
589 (Ky.Ct.App.1973); Goodridge v. Dep't of Pub.
Health, 440 Mass. 309, 798 N.E.2d 941, 953
(Mass.2003); Baker v. Nelson, 291 Minn. 310, 191
N.W.2d 185, 186 (Minn.1971); Hernandez v.
Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855
N.E.2d 1, 6 (N.Y.2006) (plurality opinion); Baker
v. State, 170 Vt. 194, 744 A.2d 864, 869 (Vt.1999);
see also Lewis v. Harris, 188 N.J. 415, 908 A.2d
196, 208 (N.J.2006) (“With the exception of Mas-
sachusetts, every state's law, explicitly or impli-
citly, defines marriage to mean the union of a man
and a woman.” (emphases added)). Far from being
“unprecedented,” then, Romer, 517 U.S. at 633,
same-sex marriage bans were literally the only pre-
cedent in all fifty states until little more than a dec-
ade ago. See Michael Sant' Ambrogio, The Ex-
tra–Legislative Veto, 102 Geo. L.J. 351, 378 (2014)
(noting that Massachusetts became the first state in
the country to legally acknowledge same-sex mar-
riages in 2003); see also David B. Oppenheimer et
al., Religiosity and Same–Sex Marriage in the
United States and Europe, 32 Berkeley J. Int'l L.
195, 195 (2014) (“Twenty years ago, no country in
the world and not a single U.S. state had authorized
same-sex marriage.”). Whether right or wrong as a
policy matter, or even right or wrong as a funda-
mental-rights matter, this ancient lineage estab-
lishes beyond peradventure that same-sex marriage
bans are not qualitatively unprecedented—they are
actually as deeply rooted in precedent as any rule
could be.
FN9
See Hernandez, 821 N.Y.S.2d 770,
855 N.E.2d at 8 (“Until a few decades ago, it was
an accepted truth for almost everyone who ever
lived, in any society in which marriage existed, that
there could be marriages only between participants
of different sex. A court should not lightly conclude
that everyone who held this belief was irrational,
ignorant or bigoted. We do not so conclude.”).
A useful point of comparison in this regard can
be located in the Ninth Circuit's Proposition 8 case,
which nicely demonstrates the sort of qualitatively
abnormal lawmaking that triggers the animus doc-
trine, and nicely demonstrates the absence of any
such lawmaking here.
By way of background on the Proposition 8
case, prior to the pertinent federal litigation, Cali-
fornia had codified a statute withholding “the offi-
cial designation of marriage” from same-sex
couples. Perry v. Brown, 671 F.3d 1052, 1065 (9th
Cir.2012), vacated on other grounds sub nom.
Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct.
2652, 186 L.Ed.2d 768 (2013). The California Su-
preme Court declared the statute unlawful as a viol-
ation of the state constitution. Id. at 1066. Follow-
ing the court's decision, a referendum succeeded in
adding an amendment—Proposition 8—to the Cali-
fornia Constitution defining marriage in man-
woman terms, thereby nullifying the judicial rul-
ing. Id. at 1067.
*28 The Ninth Circuit struck down Proposition
8 on federal constitutional grounds. Id. at 1096. It
began its analysis by noting that “Proposition 8
worked a singular and limited change to the Cali-
fornia Constitution: it stripped same-sex couples of
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the right to have their committed relationships re-
cognized by the State with the designation of
‘marriage,’ which the state constitution had previ-
ously guaranteed them.” Id. at 1076. In view of that
effect, the Ninth Circuit posed the question presen-
ted by the appeal thusly:
[D]id the People of California have legitimate
reasons for enacting a constitutional amendment
that serves only to take away from same-sex
couples the right to have their lifelong relation-
ships dignified by the official status of marriage,
and to compel the State and its officials and all
others authorized to perform marriage ceremonies
to substitute the label of domestic partnership for
their relationships?
Id. at 1079 (internal quotation marks omitted).
The Ninth Circuit stressed the distinction between
this removal of an established right and the decision
not to confer a right at all. See id. at 1079–80
(“Withdrawing from a disfavored group the right to
obtain a designation with significant societal con-
sequences is different from declining to extend that
designation in the first place.... The action of chan-
ging something suggests a more deliberate purpose
than does the inaction of leaving it as is.”).
With the question framed in this fashion, the
Ninth Circuit determined that Proposition 8 failed
constitutional scrutiny under Romer's animus ana-
lysis. See Perry, 671 F.3d at 1081. In reaching that
determination, the Perry court returned time and
time again to the fact that Proposition 8 had erased
a previously-existing right to marriage that had
been enjoyed by same-sex couples before the rati-
fication of the amendment. See id. (“Like Amend-
ment 2 [in Romer], Proposition 8 has the ‘peculiar
property’ of ‘withdraw[ing] from homosexuals, but
no others,’ an existing legal right—here, access to
the official designation of ‘marriage’—that had
been broadly available ....” (second alteration in
original) (emphases added) (citation omitted)
(quoting Romer, 517 U.S. at 632)); id. (“Like
Amendment 2, Proposition 8 ... carves out an ex-
ception to California's equal protection clause, by
removing equal access to marriage, which gays and
lesbians had previously enjoyed .... “ (emphasis ad-
ded) (internal quotation marks omitted)); id.
(“[T]he surgical precision with which [Proposition
8] excises a right belonging to gay and lesbian
couples makes it even more suspect. A law that has
no practical effect except to strip one group of the
right to use a state-authorized and socially mean-
ingful designation is all the more ‘unprecedented’
and ‘unusual’ than a law that imposes broader
changes, and raises an even stronger ‘inference that
the disadvantage imposed is born of animosity to-
ward the class of persons affected.’ “ (emphases ad-
ded) (quoting Romer, 517 U.S. at 633–34)); id. at
1096 (“By using their initiative power to target a
minority group and withdraw a right that it pos-
sessed, without a legitimate reason for doing so, the
People of California violated the Equal Protection
Clause.” (emphasis added)).
*29 There is no need in the context of this case
to pass upon the correctness vel non of the Ninth
Circuit's ultimate conclusion—viz., that Proposition
8 was unconstitutional under Romer. The essential
point to glean from Perry is that it properly recog-
nized the key factor that brought Proposition 8
within the realm of Romer: that Proposition 8 re-
moved from homosexuals a right they had previ-
ously enjoyed—marriage—just as Amendment 2
did in Romer with respect to the right to secure
civil-rights protections through the political pro-
cess. See Romer, 517 U.S. at 632 (“[T]he amend-
ment has the peculiar property of imposing a broad
and undifferentiated disability on a single named
group, an exceptional and ... invalid form of legisla-
tion.”). That is precisely the sort of atypical, hostile
state action that exposes a law to animus analysis.
And it is precisely the sort of action that is nowhere
to be seen in the case before us today.
Quite unlike the California situation, it is pat-
ent and undisputed that gay and lesbian couples in
Oklahoma never had the right to marry—as such
couples never had the right to marry in any State
that did not expressly permit them to. See Lewis,
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908 A.2d at 208 (“With the exception of Massachu-
setts, every state's law, explicitly or implicitly,
defines marriage to mean the union of a man and a
woman.” (emphases added)). The Oklahoma law
effectuated no change at all to the status quo in that
regard: the plaintiffs could not marry in Oklahoma
before SQ 711, and they could not marry after it. A
studious and conscientious reading of Romer seem-
ingly led the Ninth Circuit in Perry to the conclu-
sion that the deprivation of a right that would other-
wise exist makes all the difference in deciding
whether or not to invoke the strong medicine of the
animus doctrine. Cf. Sevcik v. Sandoval, 911
F.Supp.2d 996, 1019 (D.Nev.2012) (“Because there
has never been a right to same-sex marriage in
Nevada, Romer and Perry are inapplicable here as
to [a same-sex marriage ban].”). As noted, there
was no preexisting recognized right to same-sex
marriage in Oklahoma. In other words, there was no
predicate right to same-sex marriage to support the
Perry deprivation scenario. Thus, my examination
of Perry underscores the absence here of the sort of
qualitatively abnormal lawmaking that customarily
triggers the animus doctrine.
In sum, for the foregoing reasons, it is patent
that Romer's animus analysis cannot support an as-
sault on SQ 711.
B
Just like the first factor, the second
factor—relating to the historical role of the law-
making sovereign in regulating the field in ques-
tion—also signals the inapplicability of the animus
doctrine on these facts. As I discussed earlier, inso-
far as Windsor drew upon animus law, it did so be-
cause DOMA veered sharply from the deferential
customs that had previously defined the contours of
federal policy regarding State marriage regulations.
See Part I.B.2, supra. In contrast, when the same-
sex marriage provisions of a State are the subject of
the challenge, those same federalism concerns
found in Windsor militate powerfully in the oppos-
ite direction— viz., against an animus determina-
tion. To see why this is so, recall that in striking
down the federal statute, DOMA, Windsor returned
repeatedly to the fact that state legislatures are en-
trusted in our federalist system with drawing the
boundaries of domestic-relations law—so long as
those boundaries are consistent with the mandates
of the federal Constitution. See 133 S.Ct. at 2691
(“State laws defining and regulating marriage, of
course, must respect the constitutional rights of per-
sons, but, subject to those guarantees, regulation of
domestic relations is an area that has long been re-
garded as a virtually exclusive province of the
States.” (citation omitted) (internal quotation marks
omitted)); id. at 2692 (“Against this background
DOMA rejects the long-established precept that the
incidents, benefits, and obligations of marriage are
uniform for all married couples within each State,
though they may vary, subject to constitutional
guarantees, from one State to the next.”). But, when
the subject of the challenge is a State-enacted same-
sex marriage ban, those federalism interests “come
into play on the other side of the board .” Id. at
2697 (Roberts, C.J., dissenting). Far from showing
animus, then, Windsor's concern with traditional
federalist spheres of power is a compelling indica-
tion that SQ 711—which is a natural product of the
State of Oklahoma's sphere of regulatory con-
cern—is not inspired by animus.
*30 To summarize, the two factors that courts
are duty-bound to consider in assaying for animus
both counsel unequivocally here against an animus
finding. Simply put, boiling these two factors down
to their essence and applying them here, the chal-
lenged Oklahoma law does not sweep broadly—it
excludes gays and lesbians from the single institu-
tion of marriage—and it cannot sensibly be depic-
ted as “unusual” where the State was simply exer-
cising its age-old police power to define marriage
in the way that it, along with every other State, al-
ways had. See Conkle, supra, at 40 (“When the
question turns from DOMA to state laws, ... there
are ... reasons for avoiding animus-based reasoning.
In the first place, the state-law context eliminates
the federalism concern that was present in Windsor
and that the Court directly linked to its animus ra-
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tionale.”).
Romer and Windsor both involved extraordin-
arily unusual pieces of lawmaking: Romer because
Colorado embedded in its constitution the depriva-
tion of all specially designated civil-rights protec-
tions that an entire group might otherwise enjoy,
and Windsor because Congress exercised federal
power in a state arena for the sheer purpose of ex-
cluding a group from an institution that it otherwise
had a virtually nonexistent role in defining. In stark
contrast, SQ 711 formalized a definition that every
State had employed for almost all of American his-
tory, and it did so in a province the States had al-
ways dominated. Consequently, SQ 711 is not
plagued by impermissible animus.
III
For the foregoing reasons, I conclude that the
district court correctly found that the animus doc-
trine was inapplicable here. I respectfully concur.
KELLY, Circuit Judge, concurring in part and dis-
senting in part.
Plaintiffs made an unusual decision in this
case.
FN1
They challenged only the constitutional
amendment concerning same-gender marriage.
Okla. Const. art. II, § 35. They ignored the earlier-
enacted statutory provisions which define and only
recognize marriage as between persons of opposite
gender. Okla. Stat. tit. 43, §§ 3(A), 3.1. They also
sued the wrong defendant when it comes to non-
recognition of out-of-state same-gender marriages;
the clerk has no occasion to pass on the validity of
out-of-state marriages. The district court noticed
both of these problems, yet entered an injunction
concerning the constitutional amendment's defini-
tion of marriage. See Bishop v. United States ex rel.
Holder, 962 F.Supp.2d 1252, 1296
(N.D.Okla.2014); Fed.R.Civ.P. 65(d)(1)(C)
(requiring specificity in injunctions).
I concur with the court that the Barton couple
lacks standing to challenge the non-recognition pro-
vision, but I differ on whether the “law of the case”
applies. I dissent from this court's conclusion that
the Plaintiffs have standing even though they did
not challenge the underlying statutes. Thus, I would
not reach the merits for lack of standing. As I have
not persuaded my colleagues, were I to reach the
merits of the Bishop couple's claim, I would dissent
from this court's conclusion that Oklahoma's defini-
tion of marriage is invalid because marriage is a
fundamental right and the State's classification can-
not survive strict scrutiny. Instead, I would apply
rational basis review and uphold Oklahoma's defin-
ition of marriage.
A. Standing–Failure to Challenge the Underlying
Statutes
*31 Plaintiffs (Bishop couple) failed to chal-
lenge Oklahoma's statutory requirement concerning
“Who may marry” which provides:
Any unmarried person who is at least eighteen
(18) years of age and not otherwise disqualified
is capable of contracting and consenting to mar-
riage with a person of the opposite sex.
Okla. Stat. tit. 43, § 3(A). The district court
was aware of the statutory prohibition and stated
that no party addressed the “standing problems,”
but was satisfied that enjoining section A of the
constitutional provision “redresses a concrete injury
suffered by the Bishop couple.” Bishop, 962
F.Supp.2d at 1259 n. 2, 1274 n. 19, 1279, 1296.
Section A provides:
Marriage in this state shall consist only of the
union of one man and one woman. Neither this
Constitution nor any other provision of law shall
be construed to require that marital status or the
legal incidents thereof be conferred upon unmar-
ried couples or groups.
Okla. Const. art. II, § 35(A). Section C adds
criminal liability for non-compliance. Id. § 35(C).
No matter how important the issue, a federal court
must consider standing, including whether the in-
jury is likely to be redressed by a favorable de-
cision. Hollingsworth v. Perry, ––– U.S. ––––,
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––––, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768
(2013).
Plaintiffs (Barton couple) failed to challenge
Oklahoma's statutory non-recognition requirement
which provides:
A marriage between persons of the same gender
performed in another state shall not be recog-
nized as valid and binding in this state as of the
date of the marriage.
Okla. Stat. tit. 43, § 3.1. The constitutional
non-recognition provision is the same. Okla. Const.
art. II, § 35(B). The district court correctly ob-
served that any injury from nonrecognition comes
from both of these provisions. Bishop, 962
F.Supp.2d at 1266.
Enjoining section A of the constitutional
amendment would not solve the Bishop couple's
problem because the statute, Okla. Stat. tit. 43, §
3(A), contemplates “marriage with a person of the
opposite sex.” Enjoining section B of the constitu-
tional amendment would not solve the Barton
couple's problem because the statute, Okla. Stat. tit.
43, § 3. 1, proscribes the same thing: recognition of
same-gender marriages from other states.
According to this court, the statutory provi-
sions are not enforceable independent of the consti-
tutional provisions. But that cannot be right. In Ok-
lahoma, marriage arises out of contract and requires
consent by legally competent parties. Okla. Stat. tit.
43, § 1. Okla. Stat. tit. 43, § 3(A) imposes several
requirements including being (1) unmarried, (2) at
least age 18, and (3) not otherwise disqualified, for
the capacity to contract and consent to opposite
gender marriage. The constitutional provision
defines marriage as one man and one woman and
also provides a rule of construction for the constitu-
tion and “any other provision of law.” Okla. Const.
art. II, § 35(A). Although the non-recognition pro-
visions have identical language, one would not pre-
sume that the electorate would engage in a useless
act. If anything, the language in the constitutional
provisions suggests an intent to augment the stat-
utory provisions, as was done in other states. See
Bishop, 962 F.Supp.2d at 1283–84 (suggesting sen-
timent to create an independent bar); see also supra
n. 1. Indeed, that is the argument of the State. Aplt.
Br. 33.
*32 The most serious problem with this court's
analysis is that it is derived from cases where provi-
sions conflict; it would be an extravagant reading to
conclude that Oklahoma is not empowered to enact
a consistent and clarifying constitutional provision
without replacing the statutory provision. The rule
stated in Fent v. Henry, 257 P.3d 984 (Okla.2011),
that a constitutional amendment “takes the place of
all former laws existing upon the subject with
which it deals,”
rests upon the principle that when it is apparent
from the framework of the revision that whatever
is embraced in the new law shall control and
whatever is excluded is discarded, decisive evid-
ence exists of an intention to prescribe the latest
provisions as the only ones on that subject which
shall be obligatory.
Id. at 992 n. 20. We have no such “decisive
evidence” in this case because there is no
“framework of revision” when the constitutional
amendment in no way contradicts the statutes. Al-
though this court contends that the constitutional
amendment is “a complete scheme,” Lankford v.
Menefee, 45 Okla. 228, 145 P. 375, 376
(Okla.1914), concerning same-gender marriage, the
amendment certainly does not replace the other
marriage qualifications contained in Okla. Stat. tit.
43, § 3(A). Nor should it replace the qualification
“with a person of the opposite sex.” Of course, the
most important canon of construction must be fidel-
ity to the intent of the electorate and its representat-
ives: a canon that is not well-served by disregarding
Oklahoma's statutes and focusing only on the
amendment. This court's argument that it can envi-
sion no scenario where the clerk could enforce the
statute but not the amendment fails to appreciate
the independent and complementary nature of the
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provisions.
Invalidating state law provisions as violative of
the Constitution is one of the most serious tasks
performed by a federal court. Though the Plaintiffs
apparently thought otherwise, state statutes do mat-
ter. Plaintiffs, who have the burden on standing,
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), cannot
show redressability.
B. Law of the Case
The district court was correct in concluding
that the Barton couple lacks standing to challenge
the non-recognition constitutional provision. See
Bishop, 962 F.Supp.2d at 1272–73. This court con-
cludes that the law of the case doctrine extended to
this challenge, and the court clerk would have been
the proper defendant but for changed circum-
stances, i.e., the affidavit of the court clerk. The
law of the case doctrine does not apply. The court
clerk's duties are ministerial, and she has no author-
ity to recognize out-of-state marriages. See Okla.
Stat. tit. 43, § 5(B)(1) (listing the duties of the
clerk). The Barton couple concede that they never
asked the court clerk to recognize their California
license.
The law of the case doctrine is one of discre-
tion, not power, and applies only to issues actually
decided. Pepper v. United States, –––U.S. ––––,
–––– – ––––, 131 S.Ct. 1229, 1250–51, 179
L.Ed.2d 196 (2011). The issue actually decided in
the prior appeal of this case, Bishop I, was that the
Attorney General and the Governor were not proper
defendants. Bishop v. Oklahoma, 333 F. App'x 361,
365 (10th Cir.2009). We stated:
*33 The Couples claim they desire to be married
but are prevented from doing so, or they are mar-
ried but the marriage is not recognized in Ok-
lahoma. These claims are simply not connected to
the duties of the Attorney General or the Gov-
ernor. Marriage licenses are issued, fees collec-
ted, and the licenses recorded by the district court
clerks. See Okla. Stat. tit. 28, § 31; Okla. Stat. tit.
43, § 5. “[A] district court clerk is ‘judicial per-
sonnel’ and is an arm of the court whose duties
are ministerial, except for those discretionary du-
ties provided by statute. In the performance of [a]
clerk's ministerial functions, the court clerk is
subject to the control of the Supreme Court and
the supervisory control that it has passed down to
the Administrative District Judge in the clerk's
administrative district.” Speight v. Presley, 203
P.3d 173, 177 (Okla.2008). Because recognition
of marriages is within the administration of the
judiciary, the executive branch of Oklahoma's
government has no authority to issue a marriage
license or record a marriage.
Id. at 365 (alterations in original). We stressed
that the problem was “the alleged injury to the
Couples could not be caused by any action of the
Oklahoma officials” named. Id. In noting that
Plaintiffs never sought an injunction, we stressed
that the Plaintiffs never identified “any action” that
would be taken by those officials, that they “act or
refrain from acting.” Id. at 365 n. 6.
Merely because we described the Plaintiffs' two
claims at the beginning of the passage cannot alter
the import of what follows. No reasonable reading
results in a conclusion that the court clerk was a
proper defendant for a challenge to the amend-
ment's non-recognition provision. The only func-
tions mentioned are issuance of a license, collection
of fees, and recording a license. As stated by the
district court: “The Bishop couple has proven
standing because they sought an Oklahoma mar-
riage license from Smith, Smith denied them such
license, and Smith did so based upon their status as
a same-sex couple. Unlike with Part B, the Bishop
couple has clearly demonstrated Smith's connection
to their injury.” Bishop, 962 F.Supp.2d at 1274.
Here, the Barton couple had the burden to show
that the court clerk had some authority over the
nonrecognition provision and that their injuries are
fairly traceable to her. Cressman v. Thompson, 719
F.3d 1139, 1145–46 (10th Cir.2013); Bronson v.
Swensen, 500 F.3d 1099, 1109–10 (10th Cir.2007).
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Nothing in Bishop I remotely suggested that
the court clerk was the proper defendant for any
challenge. To the contrary, the panel discussed the
clerk's authority and that “recognition of marriages
is within the administration of the judiciary.” Bish-
op, 333 F. App'x at 365. Moreover, the panel in
Bishop I relied heavily on Bronson. Bronson
stressed that a plaintiff must establish that this de-
fendant caused the injury, and an injunction against
this defendant would provide relief. 500 F.3d at
1111–12. Merely because the clerk is considered
judicial personnel and has ministerial power over
some aspects of marriage cannot change the fact
that she has no power to recognize out-of-state mar-
riages. The district court's analysis is consistent
with the care this court has taken in the past with
standing. See Cressman, 719 F.3d at 1145–47;
Bronson, 500 F.3d at 1111–12. The standing prob-
lem is of the Barton couple's own making: as this
court notes, Plaintiffs could very easily have sought
to file a state tax return and then sued the respons-
ible official were they not allowed.
In summary, I would hold that the Barton and Bish-
op couples lack standing because they failed to
challenge Oklahoma's statutes which must be re-
spected as an independent bar to relief. I agree with
the court that the Barton couple lacks standing be-
cause they sued the wrong defendant—one with no
power to recognize their out-of-state marriage. As I
have not persuaded my colleagues on the definition
of marriage claim, I proceed to its merits.
C. Merits
*34 I adhere to my views in Kitchen v. Herbert,
––– F.3d ––––, 2014 WL 2868044, at *33 (10th
Cir. June 25, 2014) (Kelly, J., concurring in part
and dissenting in part). Same-gender marriage is a
public policy choice for the states, and should not
be driven by a uniform, judge-made fundamental
rights analysis. At a time when vigorous public de-
bate is defining policies concerning sexual orienta-
tion, this court has intervened with a view of mar-
riage ostensibly driven by the Constitution. Unfor-
tunately, this approach short-circuits the healthy
political processes leading to a rough consensus on
matters of sexual autonomy, and marginalizes those
of good faith who draw the line short of same-
gender marriage.
Essentially, relying upon substantive due pro-
cess, this court has “deduced [a right] from abstract
concepts of personal autonomy” rather than anchor-
ing it to this country's history and legal traditions
concerning marriage. See Washington v. Glucks-
berg, 521 U.S. 702, 725 (1997). When it comes to
deciding whether a state has violated a fundamental
right to marriage, the substantive due process ana-
lysis must consider the history, legal tradition, and
practice of the institution. Id. at 721. Although
Plaintiffs remind us history and tradition are not ne-
cessarily determinative, Aplee. Br. 65, Oklahoma's
efforts to retain its definition of marriage are be-
nign, and very much unlike race-based restrictions
on marriage invalidated in Loving v. Virginia, 388
U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).
This court's fundamental rights analysis turns
largely on certain “personal aspects” of marriage
including the “emotional support and public com-
mitment” inherent in the historically accepted
definition of marriage. Kitchen, 2014 WL 2868044,
at * 14–15 (relying on Turner v. Safley. 482 U.S.
78, 95–96, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)).
But analyzing marriage primarily as the public re-
cognition of an emotional union is an a historical
understanding of marriage. Western marriage has
historically included elements besides emotional
support and public commitment, including (1) ex-
clusivity, (2) monogamy, (3) non-familial pairs, and
(4) gender complementarity, distinct from procre-
ation. Not surprisingly, this historical understand-
ing and practice is the basis for much of state law.
The core marital norms throughout Oklahoma's his-
tory have included these elements. See Okla. Stat.
tit. 43, § 201 (obligation of fidelity); Okla. Const.
art. I, § 2 (prohibiting polygamy); Okla. Stat. tit.
43, § 3(C) (prohibiting incestuous marriage); Okla.
Const. art. II, § 35(A) (defining marriage as “the
union of one man and one woman”); Okla. Stat. tit.
43, § 3(A) (marriage qualifications for opposite-
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gender marriage).
Plaintiffs essentially argue that the scope of the
right is unlimited. Aplee. Br. 65. In Kitchen, this
court accepted a similar argument: that the defini-
tion of marriage cannot be determined by who has
historically been denied access to the right. See Kit-
chen, 2014 WL 2868044 at * 18. But the definition
of marriage plays an important role in determining
what relationships are recognized in the first place.
Polygamous and incestuous relationships have not
qualified for marriage because they do not satisfy
the elements of monogamy and non-familial pairs,
regardless of the individual status of the parties
(who have historically been denied access to the
right). Thus, the traditional elements of marriage
have determined the relationships that have been re-
cognized, not the other way around.
*35 This court shortchanges the analysis of
whether the fundamental right to marriage includes
same-gender couples by asserting, “[o]ne might just
as easily have argued that interracial couples are by
definition excluded from the institution of mar-
riage.” Id. at *19; accord Aplee. Br. 66. But, as far
as I can tell, no one in Loving v. Virginia, 388 U.S.
1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), could
have argued that racial homogeneity was an essen-
tial element of marriage. Here, the limitation on
marriage is derived from the fundamental elements
of marriage, elements not implicated in invalidating
marriage restrictions on inmates ( Turner v. Safley,
482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987))
or fathers with support obligations ( Zablocki v.
Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d
618 (1978)).
Simply put, none of the Supreme Court cases
suggest a definition of marriage so at odds with his-
torical understanding. The Court has been vigilant
in striking down impermissible constraints on the
right to marriage, but there is nothing in the earlier
cases suggesting that marriage has historically been
defined as only an emotional union among willing
adults. Removing gender complementarity from the
historical definition of marriage is simply contrary
to the careful analysis prescribed by the Supreme
Court when it comes to substantive due process.
Absent a fundamental right, traditional rational
basis equal protection principles should apply, and
apparently as a majority of this panel believes,
FN2
the Plaintiffs cannot prevail on that basis. Thus, any
change in the definition of marriage rightly belongs
to the people of Oklahoma, not a federal court.
APPENDIX A
27 SCHOLARS OF FEDERALISM AND JUDI-
CIAL RESTRAINT
Attorneys on the Brief: Anthony T. Caso, John C.
Eastman, D. John Sauer
46 EMPLOYERS AND ORGANIZATIONS REP-
RESENTING EMPLOYERS
Attorneys on the Brief: Meghan Bailey, Susan
Baker Manning, John V. McDermott, Lauren
Schmidt, Margaret Sheer, Michael Louis Whit-
lock
57 OTHER FAMILY LAW PROFESSORS
Attorneys on the Brief: Rita F. Lin, Laura W.
Weissbein
93 INDIVIDUAL FAITH LEADERS IN OK-
LAHOMA AND UTAH
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
9TO5, NATIONAL ASSOCIATION OF WORK-
ING WOMEN
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
ACLU OF OKLAHOMA
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
ACLU OF UTAH
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
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AFFIRMATION
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
ALDRICH, JOHN
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
ALL SOULS UNITARIAN CHURCH OF TULSA
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
ALLEN, DOUGLAS W.
*36 Attorneys on the Brief: David C. Walker
ALVARE, HELEN M.
Attorneys on the Brief: Richard D. White
AMBROSE, DOUGLAS
Attorneys on the Brief: Frank D. Mylar
AMERICAN CIVIL LIBERTIES UNION
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiessel,
John M. Mejia
AMERICAN LEADERSHIP FUND
Attorneys on the Brief: Frank D. Mylar
AMERICAN MILITARY PARTNER ASSOCI-
ATION
Attorneys on the Brief: Abbe David Lowell,
Christopher Dowden Man
AMERICAN PSYCHOLOGICAL ASSOCIATION
Attorneys on the Brief: Nathalie F.P. Gilfoyle,
Paul March Smith
AMERICAN SOCIOLOGICAL ASSOCIATION
Attorneys on the Brief: Carmine D. Boccuzzi,
Mark A. Lightner, Andrew P. Meiser, Andra
Troy
AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
ANDERSON, JANNA
Attorneys on the Brief: Dani Hartvigsen
ANDERSON, RYAN
Attorneys on the Brief: Michael Francis Smith
ANTI–DEFAMATION LEAGUE
Attorneys on the Brief: Cheryl R. Drazin, Steven
M. Freeman, Seth M. Marnin, Rocky Chiu-feng
Tsai
API EQUALITY–LA
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE,
ASIAN AMERICANS ADVANCING
JUSTICE–ASIAN LAW CAUCUS
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE,
LOS ANGELES
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
ASIAN AMERICANS ADVANCING
JUSTICE–CHICAGO
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
AUSTIN LGBT BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
BAR ASSOCIATION OF SAN FRANCISCO
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
BARDAGLIO, PETER
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
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BASCH, NORMA
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
BAY AREA LAWYERS FOR INDIVIDUAL
FREEDOM
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
BECKET FUND FOR RELIGIOUS LIBERTY
Attorneys on the Brief: Eric C. Rassbach, Asma
Tasnim Uddin
BELTRAN, LYNN
Attorneys on the Brief: Jacob Harris Hupart, Jar-
en Janghorbani, Robert A. Kaplan, Joshua Kaye,
Alan B. Morrison
BELZ, HERMAN
Attorneys on the Brief: Frank D. Mylar
BEND THE ARC: A JEWISH PARTNERSHIP
FOR JUSTICE
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
BENNE, ROBERT D.
Attorneys on the Brief: Frank D. Mylar
BLAIR, MARIANNE
Attorneys on the Brief: Rita F. Lin, Laura W.
Weissbein
BOWLER, SHAUN
*37 Attorneys on the Brief: Mark William Mosi-
er, Jennifer Schwartz
BOYLE, DAVID
Attorneys on the Brief: David Boyle
CAIN, BRUCE
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
CALIFORNIA
Attorneys on the Brief: Kamala D. Harris, Peter
Sacks
CAMP FIRE GREEN COUNTRY, INC.
Attorneys on the Brief: Christy L. Anderson,
Sarah Elizabeth April, Kathryn R. DeBord,
Stephen D. Gurr
CARBADO, DEVON
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
CARLSON, ALLAN C.
Attorneys on the Brief: Frank D. Mylar
CARROLL, JASON S.
Attorneys on the Brief: Lynn Dennis Wardle
CATHEDRAL OF HOPE OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
CATO INSTITUTE
Attorneys on the Brief: Ilya Shapiro, Elizabeth B.
Wydra
CENTER FOR CONSTITUTIONAL JURISPRU-
DENCE
Attorneys on the Brief: Anthony T. Caso, John C.
Eastman, D. John Sauer
CENTRAL CONFERENCE OF AMERICAN
RABBIS
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
CHRISTENSEN, LAVAR
Attorneys on the Brief: Robert Theron Smith
CHURCH OF THE OPEN ARMS OF OK-
LAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
CHURCH OF THE RESTORATION OF TULSA
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
CIMARRON ALLIANCE
Attorneys on the Brief: Joshua A. Block, Leah
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Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
CLAYTON, CORNELL W.
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
COLAGE
Attorneys on the Brief: Christy L. Anderson,
Sarah Elizabeth April, Kathryn R. DeBord,
Stephen D. Gurr
COLORADO GAY LESBIAN BISEXUAL
TRANSGENDER (GLBT) BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
COLORADO WOMEN'S BAR ASSOCIATION
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
CONGREGATION KOLAMI OF SALT LAKE
CITY
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
CONNECTICUT
Attorneys on the Brief: George Jepsen, Peter
Sacks
CONSTITUTIONAL ACCOUNTABILITY CEN-
TER
Attorneys on the Brief: Shapiro Ilya, Elizabeth B.
Wydra
CONSTITUTIONAL LAW SCHOLARS
Attorneys on the Brief: Lori Ann Alvino McGill,
Geoffrey R. Stone
COONTZ, STEPHANIE
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
COTT, NANCY
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
COVENANT NETWORK OF PRESBYTERIANS
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
COX, DUANE MORLEY
Attorneys on the Brief: Duane Morley Cox
CURTIS, G.M.
*38 Attorneys on the Brief: Frank D. Mylar
DELAWARE
Attorneys on the Brief: Joseph R. Biden III, Peter
Sacks
DISTRICT OF COLUMBIA
Attorneys on the Brief: Irvin B. Nathan, Peter
Sacks
DITZ, TOBY L.
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
DOLOVICH, SHARON
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
DUBLER, ARIELA R.
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
EDWARDS, LAURA F.
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
EGGEBEEN, DAVID J.
Attorneys on the Brief: David C. Walker
EMERGENCY INFANT SERVICES
Attorneys on the Brief: Christy L. Anderson,
Sarah Elizabeth April, Kathryn R. DeBord,
Stephen D. Gurr
EMERSON, MICHAEL O.
Attorneys on the Brief: Frank D. Mylar
EPISCOPAL DIOCESE OF UTAH
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
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EPWORTH UNITED METHODIST CHURCH OF
OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
EQUAL RIGHTS ADVOCATES
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
EQUALITY UTAH
Attorneys on the Brief: Troy L. Booher, Clifford
J. Rosky, Noella A. Sudbury, Michael D. Zim-
merman
FAMILY EQUALITY COUNCIL
Attorneys on the Brief: Christy L. Anderson,
Sarah Elizabeth April, Kathryn R. DeBord,
Stephen D. Gurr
FAMILY RESEARCH COUNCIL
Attorneys on the Brief: Paul Benjamin Linton
FELLOWSHIP CONGREGATIONAL UNITED
CHURCH OF CHRIST OF TULSA
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
FIRST UNITARIAN CHURCH OF OKLAHOMA
CITY
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
FLUKE, CHARLES
Attorneys on the Brief: Jacob Harris Hupart, Jar-
en Janghorbani, Robert A. Kaplan, Joshua Kaye,
Alan B. Morrison
FREEDOM TO MARRY
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
FRIENDS FOR LESBIAN, GAY, BISEXUAL,
TRANSGENDER, AND QUEER CONCERNS
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
GAY & LESBIAN ADVOCATES & DEFENDERS
Attorneys on the Brief: Felicia H. Ellsworth,
Mark C. Fleming, Leah M. Litman, Dina Bernick
Mishra, Kenneth Lee Salazar, Alan E. Schoen-
feld, Paul Reinherz Wolfson
GEORGE, ROBERT P.
Attorneys on the Brief: Michael Francis Smith
GEORGE, TIMOTHY
Attorneys on the Brief: Frank D. Mylar
GIRGIS, SHERIF
Attorneys on the Brief: Michael Francis Smith
GLMA: HEALTH PROFESSIONALS ADVAN-
CING LGBT EQUALITY
Attorneys on the Brief: Nicholas M. O'Donnell
GROSSBERG, MICHAEL
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
HADASSAH, THE WOMEN'S ZIONIST ORGAN-
IZATION OF AMERICA, INC.
*39 Attorneys on the Brief: Samual P. Bickett,
Rebecca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
HAIDER–MARKEL, DONALD P.
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
HARTOG, HENDRIK
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
HAWKINS, ALAN J.
Attorneys on the Brief: Lynn Dennis Wardle
HAYASHI, SCOTT
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
HERMAN, ELLEN
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
HERO, RODNEY
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (58 of 518)
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
HINDU AMERICAN FOUNDATION
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
HISPANIC NATIONAL BAR ASSOCIATION
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
HISTORIANS OF ANTIGAY DISCRIMINATION
Attorneys on the Brief: Katie D. Fairchild,
Madeline H. Gitomer, Jessica Black Livingston,
Katherine A. Nelson, Aaron M. Paul, Erica
Knievel Songer, Catherine Emily Stetson, Mary
Helen Wimberly
HODES, MARTHA
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
HOLLINGER, JOAN HEIFETZ
Attorneys on the Brief: Rita F. Lin, Laura W.
Weissbein
HOWARD UNIVERSITY SCHOOL OF LAW
CIVIL RIGHTS CLINIC
Attorneys on the Brief: David Scott Flugman
HUMAN RIGHTS CAMPAIGN
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
HUNTER, NAN D.
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
ILLINOIS
Attorneys on the Brief: Lisa Madigan, Peter
Sacks
INTERFAITH ALLIANCE FOUNDATION
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
INTERFAITH ALLIANCE OF COLORADO
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
IOWA
Attorneys on the Brief: Tom Miller, Peter Sacks
JAMES, HAROLD
Attorneys on the Brief: Frank D. Mylar
JAPANESE AMERICAN CITIZENS LEAGUE
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
JEWISH SOCIAL POLICY ACTION NETWORK
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
JOHNSON, BYRON R.
Attorneys on the Brief: David C. Walker
JOSLIN, COURTNEY
Attorneys on the Brief: Rita F. Lin, Laura W.
Weissbein
JUSTICE, STEVEN
Attorneys on the Brief: Frank D. Mylar
KERBER, LINDA K.
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
KESHET
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
KESSLER–HARRIS, ALICE
*40 Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
KOONS, ROBERT C.
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (59 of 518)
Attorneys on the Brief: Frank D. Mylar
KURTZ, STANLEY
Attorneys on the Brief: Frank D. Mylar
LAMBDA LEGAL DEFENSE AND EDUCATION
FUND, INC.
Attorneys on the Brief: Jennifer C. Pizer, Susan
Sommer, Camilla Taylor, Kenneth D. Upton
LEADERSHIP CONFERENCE ON CIVIL AND
HUMAN RIGHTS
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
LEE, TAEKU
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
LEGAL MOMENTUM
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
LEGAL VOICE
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
LEVI, MARGARET
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
LEWIS, GREGORY B.
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
LGBT & ALLIED LAWYERS OF UTAH BAR
ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
LIBERTY COUNSEL, INC.
Attorneys on the Brief: Anita Staver, Mathew D.
Staver
LITTLETON, CHRISTINE A.
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
LOVE HONOR CHERISH
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
LUTHERAN CHURCH–MISSOURI SYNOD
Attorneys on the Brief: Anthony T. Caso, Alexan-
der Dushku, Richard Shawn Gunnarson, Justin
W. Starr
MAINE
Attorneys on the Brief: Janet T. Mills, Peter
Sacks
MARRIAGE EQUALITY USA
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
MARTINEZ–EBERS, VALERIE
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
MARYLAND
Attorneys on the Brief: Douglas F. Gansler, Peter
Sacks
MASSACHUSETTS
Attorneys on the Brief: Martha Coakley, Michelle
L. Leung, Jonathan B. Miller, Genevieve C.
Nadeau, Peter Sacks
MAY, ELAINE TYLER
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
MAYERI, SERENA
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
MAYFLOWER CONGREGATIONAL UNITED
CHURCH OF CHRIST OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
MCCANN, MICHAEL
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
MCDERMOTT, GERALD R.
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (60 of 518)
Attorneys on the Brief: Frank D. Mylar
MCHUGH, PAUL
Attorneys on the Brief: Gerard Vincent Bradley,
Kevin Trent Snider
MCIFF, KAY
Attorneys on the Brief: Robert Theron Smith
METHODIST FEDERATION FOR SOCIAL AC-
TION
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
METROPOLITAN COMMUNITY CHURCHES
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
MINNESOTA LAVENDER BAR ASSOCIATION
*41 Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
MINTZ, STEVE
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
MOORE, RUSSELL
Attorneys on the Brief: Frank D. Mylar
MORE LIGHT PRESBYTERIANS
Attorneys on the Brief: Samual P. Bickett, Kurt
M. Denk, Rebecca Harlow, Idin Kashefipour,
Jason M. Moff, Norman C. Simon, Jeffrey S.
Trachtman, Rocky Chiu-feng Tsai
MORMONS FOR EQUALITY
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
MT. TABOR LUTHERAN CHURCH OF SALT
LAKE CITY
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
NAACP SALT LAKE BRANCH & NAACP TRI
STATE CONFERENCE OF IDAHO, NEVADA
AND UTAH
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John M. Mejia
NATIONAL ACTION NETWORK
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
NATIONAL ASIAN PACIFIC AMERICAN BAR
ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
NATIONAL ASSOCIATION FOR RESEARCH
AND THERAPY OF HOMOSEXUALITY
Attorneys on the Brief: Stephen M. Crampton,
Mary Elizabeth McAlister
NATIONAL ASSOCIATION OF EVANGELIC-
ALS
Attorneys on the Brief: Alexander Dushku,
Richard Shawn Gunnarson, Anthony R. Picarello,
Justin W. Starr
NATIONAL ASSOCIATION OF WOMEN LAW-
YERS
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
NATIONAL COUNCIL OF JEWISH WOMEN
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
NATIONAL COUNCIL OF LA RAZA
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
NATIONAL GAY AND LESBIAN TASK FORCE
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
NATIONAL ORGANIZATION FOR WOMEN
FOUNDATION
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (61 of 518)
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
NATIONAL PARTNERSHIP FOR WOMEN AND
FAMILIES
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
NATIONAL WOMEN'S LAW CENTER
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
NEHIRIM
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
NELSON, MERRILL
Attorneys on the Brief: Robert Theron Smith
NERO, NICHOLAS
Attorneys on the Brief: Jacob Harris Hupart, Jar-
en Janghorbani, Robert A. Kaplan, Joshua Kaye,
Alan B. Morrison
NEW HAMPSHIRE
Attorneys on the Brief: Joseph A. Foster, Peter
Sacks
NEW MEXICO
Attorneys on the Brief: Gary K. King, Peter Sacks
NEW MEXICO LESBIAN AND GAY LAWYERS
ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
NEW YORK
*42 Attorneys on the Brief: Peter Sacks, Eric T.
Schneiderman
O'GRADY, CLAUDIA
Attorneys on the Brief: Jacob Harris Hupart, Jar-
en Janghorbani, Robert A. Kaplan, Joshua Kaye,
Alan B. Morrison
OKLAHOMA CITY UNIVERSITY SCHOOL OF
LAW OUTLAWS
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
OKLAHOMANS FOR EQUALITY
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
OREGON
Attorneys on the Brief: Ellen F. Rosenblum, Peter
Sacks
OUTSERVE–SLDN
Attorneys on the Brief: Abbe David Lowell,
Christopher Dowden Man
PAKALUK, CATHERINE R.
Attorneys on the Brief: David C. Walker
PAQUETTE, ROBERT
Attorneys on the Brief: Frank D. Mylar
PARENTS, FAMILIES AND FRIENDS OF LES-
BIANS AND GAYS, INC.
Attorneys on the Brief: Andrew John Davis, Jiyun
Cameron Lee
PEOPLE FOR THE AMERICAN WAY FOUNDA-
TION
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
PLECK, ELIZABETH
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
POLIKOFF, NANCY
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
PRESBYTERIAN WELCOME
Attorneys on the Brief: Samual P. Bickett, Kurt
M. Denk, Rebecca Harlow, Idin Kashefipour,
Jason M. Moff, Norman C. Simon, Jeffrey S.
Trachtman, Rocky Chiu-feng Tsai
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (62 of 518)
PRICE, JOSEPH
Attorneys on the Brief: David C. Walker
PUBLIC ADVOCATES, INC.
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
QLAW–THE GLBT BAR ASSOCIATION OF
WASHINGTON
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
RAHE, PAUL A.
Attorneys on the Brief: Frank D. Mylar
RECONCILING MINISTRIES NETWORK
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
RECONCILINGWORKS: LUTHERANS FOR
FULL PARTICIPATION
Attorneys on the Brief: Samual P. Bickett, Kurt
M. Denk, Rebecca Harlow, Idin Kashefipour,
Jason M. Moff, Norman C. Simon, Jeffrey S.
Trachtman, Rocky Chiu-feng Tsai
RECONSTRUCTIONIST RABBINICAL ASSOCI-
ATION
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
RECONSTRUCTIONIST RABBINICAL COL-
LEGE
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
REGNERUS, MARK D.
Attorneys on the Brief: David C. Walker
RELIGIOUS INSTITUTE, INC.
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman,
Rocky Chiu-feng Tsai
REYNOLDS, MICHAEL A.
Attorneys on the Brief: Frank D. Mylar
RHODE ISLAND
Attorneys on the Brief: Peter F. Kilmartin, Peter
Sacks
ROVIG, STANFORD
Attorneys on the Brief: Jacob Harris Hupart, Jar-
en Janghorbani, Robert A. Kaplan, Joshua Kaye,
Alan B. Morrison
SCHULTZ, VICKI
*43 Attorneys on the Brief: Marcia D. Greenber-
ger, Cortelyou Kenney, Emily Martin
SEARS, BRAD
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
SEGURA, GARY
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
SHAMMAS, CAROLE
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
SHANLEY, MARY
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
SHERRILL, KENNETH
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
SHIFFRIN, SEANA
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
SIKH AMERICAN LEGAL DEFENSE AND
EDUCATION FUND
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
SMITH, CHARLES ANTHONY
Attorneys on the Brief: Mark William Mosier,
Jennifer Schwartz
SNOW, LOWRY
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (63 of 518)
Attorneys on the Brief: Robert Theron Smith
SOCIETY FOR HUMANISTIC JUDAISM
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
SOUTH ASIAN AMERICANS LEADING TO-
GETHER
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
SOUTHWEST WOMEN'S LAW CENTER
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
ST. STEPHEN'S UNITED METHODIST
CHURCH OF NORMAN, OKLAHOMA
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
STANLEY, AMY DRU
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
STATE OF ALABAMA
Attorneys on the Brief: Thomas Molnar Fisher,
Luther Strange
STATE OF ALASKA
Attorneys on the Brief: Thomas Molnar Fisher,
Michael C. Geraghty
STATE OF ARIZONA
Attorneys on the Brief: Thomas Molnar Fisher,
Thomas C. Horne
STATE OF COLORADO
Attorneys on the Brief: Thomas Molnar Fisher,
John Suthers
STATE OF IDAHO
Attorneys on the Brief: Thomas Molnar Fisher,
Lawrence G. Wasden
STATE OF INDIANA
Attorneys on the Brief: Thomas Molnar Fisher,
Gregory F. Zoeller
STATE OF KANSAS
Attorneys on the Brief: Jeffrey A. Chanay, Bryan
Charles Clark
STATE OF MICHIGAN
Attorneys on the Brief: Aaron Lindstrom, Bern-
ard Eric Restuccia, Bill Schuette
STATE OF MONTANA
Attorneys on the Brief: Thomas Molnar Fisher,
Timothy C. Fox
STATE OF NEBRASKA
Attorneys on the Brief: Jon Bruning, Thomas
Molnar Fisher
STATE OF OKLAHOMA
Attorneys on the Brief: Thomas Molnar Fisher, E.
Scott Pruitt
STATE OF SOUTH CAROLINA
Attorneys on the Brief: Thomas Molnar Fisher,
Alan Wilson
STONEWALL BAR ASSOCIATION OF GEOR-
GIA, INC.
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
STONEWALL BAR ASSOCIATION OF
MICHIGAN
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
STONEWALL LAW ASSOCIATION OF GREAT-
ER HOUSTON
*44 Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
STRAUB, D'ARCY WINSTON
Attorneys on the Brief: D'Arcy Winston Straub
THE CENTER FOR URBAN RENEWAL AND
EDUCATION
Attorneys on the Brief: Stephen Kent Ehat
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (64 of 518)
THE CHURCH OF JESUS CHRIST OF LAT-
TER–DAY SAINTS
Attorneys on the Brief: Alexander Dushku,
Richard Shawn Gunnarson, Anthony R. Picarello,
Justin W. Starr
THE COALITION OF AFRICAN–AMERICAN
PASTORS USA
Attorneys on the Brief: Stephen Kent Ehat
THE EQUALITY NETWORK
Attorneys on the Brief: Joshua A. Block, Leah
Farrell, Brady R. Henderson, Ryan D. Kiesel,
John Mejia
THE ETHICS & RELIGIOUS LIBERTY COM-
MISSION OF THE SOUTHERN BAPTIST CON-
VENTION
Attorneys on the Brief: Alexander Dushku,
Richard Shawn Gunnarson, Anthony R. Picarello,
Justin W. Starr
THE FREDERICK DOUGLASS FOUNDATION,
INC.
Attorneys on the Brief: Stephen Kent Ehat
THE OUTLAWS
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
THE UTAH PSYCHOLOGICAL ASSOCIATION
Attorneys on the Brief: Nathalie F.P. Gilfoyle,
Paul March Smith
TRINITY CHRISTIAN CHURCH OF EDMOND,
OKLAHOMA
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
TRUAH: THE RABBINIC CALL FOR HUMAN
RIGHTS
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
UNION FOR REFORM JUDAISM
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITARIAN UNIVERSALIST ASSOCIATION
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED CHURCH OF CHRIST
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED CHURCH OF NORMAN, OKLAHOMA
Attorneys on the Brief: Kurt M. Denk, Jason M.
Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED STATES CONFERENCE OF CATHOL-
IC BISHOPS
Attorneys on the Brief: Alexander Dushku,
Richard Shawn Gunnarson, Anthony R. Picarello,
Justin W. Starr
UNIVERSITY OF OKLAHOMA COLLEGE OF
LAW LEGAL GROUP FOR BUILDING TOLER-
ANCE AND ACCEPTANCE
Attorneys on the Brief: Nicole Susan Phillis,
Jerome Cary Roth
UPHAM, DAVID R.
Attorneys on the Brief: David Robert Upham
UTAH PRIDE CENTER
Attorneys on the Brief: Clifford J. Rosky, Noella
A. Sudbury, Michael D. Zimmerman
VERMONT
Attorneys on the Brief: Peter Sacks, William H.
Sorrell
WASHINGTON
Attorneys on the Brief: Robert W. Ferguson,
Peter Sacks
WELKE, BARBARA
Attorneys on the Brief: Orly Degani, Daniel
McNeel Lane, Matthew E. Pepping
WESTERN REPUBLICANS
Attorneys on the Brief: Stacy A. Carpenter, Ben-
nett L. Cohen, Jon R. Dedon, Sean Robert Galla-
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gher
WILKEN, ROBERT LOUIS
Attorneys on the Brief: Frank D. Mylar
WINKLER, ADAM
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
WOLFE, CHRISTOPHER
*45 Attorneys on the Brief: Frank D. Mylar
WOMEN OF REFORM JUDAISM
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
WOMEN'S LAW PROJECT
Attorneys on the Brief: Marcia D. Greenberger,
Cortelyou Kenney, Emily Martin
WOMEN'S LEAGUE FOR CONSERVATIVE
JUDAISM
Attorneys on the Brief: Samual P. Bickett, Re-
becca Harlow, Idin Kashefipour, Rocky Chiu-
feng Tsai
WOOD, PETER W.
Attorneys on the Brief: Frank D. Mylar
WORTHAM, DOUGLAS
Attorneys on the Brief: Jacob Harris Hupart, Jar-
en Janghorbani, Robert A. Kaplan, Joshua Kaye,
Alan B. Morrison
FN* The names of all amicus curiae
parties are contained in Appendix A to this
Opinion.
FN1. Smith also argues that the Barton
couple does not have standing to contest
Part B of SQ 711 because they did not
challenge Okla. Stat. tit. 43, § 3. 1, which
provides that “[a] marriage between per-
sons of the same gender performed in an-
other state shall not be recognized as valid
and binding in this state as of the date of
the marriage.” We will refer above only to
Part A in discussing plaintiffs' failure to
challenge the statutory codifications of Ok-
lahoma's same-sex marriage policy as it
relates to standing. As explained infra, the
Barton couple lacked standing to sue be-
cause they named a defendant who could
not redress their injury. Therefore, there is
no need to consider whether they lacked
standing for the alternative reason that they
failed to challenge the statutory nonrecog-
nition provision. See Niemi v. Lasshofer,
728 F.3d 1252, 1260 (10th Cir.2013)
(noting that where there are multiple
threshold issues that can be resolved
without engaging in the merits a court has
“ ‘leeway to choose among’ them and to
‘take[ ] the less burdensome course’ “
(alteration in original) (quoting Sinochem
Int'l Co. v. Malaysia Int'l Shipping Corp.,
549 U.S. 422, 431, 436, 127 S.Ct. 1184,
167 L.Ed.2d 15 (2007)).
FN2. If the court relies on the subjective
motivations of lawmakers to determine the
constitutionality of Oklahoma's two provi-
sions, Smith suggests that one might sur-
vive even if the other falls. However, as
explained in Kitchen, 2014 U.S.App. LEX-
IS 11935, at *97, we conclude that because
state laws prohibiting same-sex marriage
impinge upon a fundamental right without
satisfying the strict scrutiny test, such pro-
visions fail regardless of subjective intent.
FN3. The remaining prongs of standing as
to the Bishop couple's ability to challenge
Part A are not contested. We conclude
nonetheless the couple has satisfied those
prongs. See Alvarado v. KOB–TV, L.L.C.
(Channel 4 News), 493 F.3d 1210, 1214 n.
1 (10th Cir.2007) (this court has authority
to consider standing issues sua sponte).
Having ruled that an injunction barring en-
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forcement of Part A of SQ 711 redresses
the Bishop couple's injury—inability to
marry—we have no trouble concluding
that they satisfy the traceability require-
ment. See Cache Valley Elec. Co. v. Utah
Dep't of Transp., 149 F.3d 1119, 1123
(10th Cir.1998) (noting that in many cases,
“redressability and traceability overlap as
two sides of a causation coin” (quotation
omitted)). The Bishop couple sought a
marriage license from Smith's office, but
were denied because they are both women.
See Papasan v. Allain, 478 U.S. 265, 282
n. 14, 106 S.Ct. 2932, 92 L.Ed.2d 209
(1986) (a defendant “responsible for gener-
al supervision of the administration by loc-
al ... officials” of a challenged provision is
a proper defendant). And the Bishop
couple has identified several negative fin-
ancial consequences of that denial. See
Singleton v. Wulff, 428 U.S. 106, 113, 96
S.Ct. 2868, 49 L.Ed.2d 826 (1976)
(financial harm caused by challenged pro-
vision constitutes injury in fact).
FN4. Although the district court declined
to rule on whether the plaintiffs asserted a
fundamental right, Bishop II, 962
F.Supp.2d at 1285 n. 33, and instead ap-
plied rational basis review, id. at 1295, we
may “affirm on any ground supported by
the record, so long as the appellant has had
a fair opportunity to address that ground,”
Schanzenbach v. Town of Opal, 706 F.3d
1269, 1272 (10th Cir.2013) (quotation
omitted). As in Kitchen, we do not address
the question of whether a ban on same-sex
marriage might survive lesser forms of
scrutiny given our holding that such bans
burden fundamental rights.
FN5. The law of the case doctrine is inap-
plicable when a merits panel considers a
jurisdictional issue that was addressed by a
motions or mandamus panel. See Kennedy,
273 F.3d at 1299–1300 (mandamus panel);
Stifel, Nicolaus & Co., 81 F.3d at 1544
(motions panel). Bishop I, however, was a
fully-reasoned decision by a merits panel.
The motions-panel and mandamus-panel
exceptions are therefore not germane here.
FN6. Though worded somewhat more con-
fusingly than Baca, Smith's other central
authority for this jurisdictional argument—
Public Interest Research Group of New
Jersey v. Magnesium Elektron, Inc., 123
F.3d 111 (3d Cir.1997)—is to the same ef-
fect. There, the Third Circuit cabined the
pivotal footnote from Christianson to the
transfer context, reasoning that the Su-
preme Court could not have “intended in
one footnote to eviscerate, in all instances,
the federal courts' prerogative to revisit im-
portant jurisdictional questions.” Id. at
118. But the very reason the Magnesium
Elektron court reevaluated the jurisdiction-
al issue there was that new evidence “was
presented to the district court which had a
direct bearing on the issue of standing.” Id.
As explained at length below, new evid-
ence of this sort is one of the established
exceptions to the law of the case, United
States v. Irving, 665 F.3d 1184, 1192 n. 12
(10th Cir.2011), and the new evidence in
Magnesium Elektron was in fact the exact
type of new evidence at issue in the
present appeal. Magnesium Elektron is
therefore consistent with the approach
taken herein.
FN7. Insofar as Smith is arguing, impli-
citly, that application of law of the case
works a manifest injustice, that argument
is unconvincing. If any party here can
make a colorable claim of injustice, it is
the Barton couple, who named as a defend-
ant the official that the Bishop I panel told
them to name and who find out today that
they should have named someone else and,
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as a result, are denied the satisfaction of an
explicit invalidation of Part B.
FN8. The new-evidence exception is often
set forth with reference to new evidence at
a new trial. See, e.g., Irving, 665 F.3d at
1192 n. 12; Clark, 590 F.3d at 1140. As the
authorities assembled in this section show,
a new trial is not necessary for the produc-
tion of new evidence—a summary-judg-
ment affidavit can suffice.
FN9. Had Bishop I been published, its
force as law of the case would have been
significantly strengthened by its status as
law of the circuit as well. See LaShawn A.,
87 F.3d at 1395 (“[W]hen both [the law of
the case and the law of the circuit] are at
work, the law-of-the-circuit doctrine
should increase a panel's reluctance to re-
consider a decision made in an earlier ap-
peal in the same case.”). Because the order
was unpublished, law-of-the-case prin-
ciples are the only constraint here. See
10th Cir. R. 32.1(A) (“Unpublished de-
cisions are not precedential, but may be
cited for their persuasive value. They may
also be cited under the doctrines of law of
the case, claim preclusion, and issue pre-
clusion .”); Federal Practice § 4478.2, at
731 (“If an unpublished opinion does not
command precedential force under circuit
rules, law-of-the-case rules hold full
sway.”).
FN10. The plaintiffs assert that Smith's af-
fidavit is contradicted by her answer to the
complaint, wherein she “admit[ted] that
Defendants, and those subject to their su-
pervision, direction and control, are re-
sponsible for the enforcement of the laws
challenged by Plaintiffs' First Amended
Complaint.” In rebuttal, Smith notes that
the challenged laws referenced in the an-
swer did not include the non-recognition
provision, since the first amended com-
plaint did not address that provision. Smith
has the better argument. The parties appar-
ently came to terms on this point in the dis-
trict court, where a minute sheet reflected
their consensus “that plaintiffs' motion for
summary judgment [would] address [the
non-recognition provision], notwithstand-
ing the absence of such language in the
Amended Complaint. ” (Emphasis added).
Although the complaint included some
stray passages that appeared to attribute all
of the plaintiffs' injuries to SQ 711 as a
whole, it never explicitly mentioned the
non-recognition provision and repeatedly
suggested that it was the ban, in conjunc-
tion with DOMA, that caused the nonre-
cognition injury. Smith's “admission” in
her answer is therefore irrelevant to this is-
sue.
FN11. The authorities cited by Bishop I for
its standing determination either impose
responsibilities on court clerks with respect
to issuing marriage licenses, see Okla. Stat.
tit. 28, § 31; id. tit. 43, § 5, or examine the
general relationship between court clerks
and the judicial branch, see Speight v.
Presley, 203 P.3d 173 (Okla.2008). None
of the authorities address the role court
clerks play in regards to marriage recogni-
tion.
FN12. Of course, if the Barton couple had
been entitled to a finding of standing on
the basis of law of the case, they would not
have been required to demonstrate their
standing before the district court, or here.
That is to say, had there been no new evid-
ence to sufficiently undermine the effect of
the law of the case of Bishop I, then Bish-
op I would have been enough, without
more, to establish standing. See Christian-
son, 486 U.S. at 816 n. 5 (“There is no
reason to apply law-of-the-case principles
less rigorously to [a jurisdictional issue].”).
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But since there was new evidence that did
effectively undermine Bishop I's non-
recognition standing holding, the Barton
couple had to meet their summary-judg-
ment burden in rebutting that evidence.
See, e.g., Clark, 590 F.3d at 1140
(describing new evidence as a reason to “
depart from the [law of the case] doctrine”
(emphasis added)); United States v.
Parada, 577 F.3d 1275, 1280 (10th
Cir.2009) (same).
FN13. That the plaintiffs' action was in
part for a declaratory judgment does not
affect the standing analysis. Like any law-
suit, a declaratory-judgment action must
meet Article III's standing criteria, includ-
ing redressability. See Consumer Data In-
dus. Ass'n, 678 F.3d at 906; City of Hugo
v. Nichols (Two Cases), 656 F.3d 1251,
1263–64 (10th Cir.2011). As part of the re-
dressabilityrequirement, adeclaratory-judg-
ment action must be brought against a de-
fendant who can, if ordered to do so, rem-
edy the alleged injury. See Coll v. First
Am. Title Ins. Co., 642 F.3d 876, 892 (10th
Cir.2011); Bronson, 500 F.3d at 1111.
Since Smith cannot provide relief to the
Barton couple on their non-recognition
claim, they had no standing to sue her, re-
gardless of whether the claim was brought
in a declaratory-judgment form or not.
Similarly, the doctrine of actionable con-
duct capable of repetition yet evading re-
view is not applicable here. As an initial
matter, the doctrine creates an exception
to mootness, not to lack of standing. See
United States v. Juvenile Male, ––– U.S.
––––, ––––, 131 S.Ct. 2860, 2865, 180
L.Ed.2d 811 (2011) (per curiam); Buch-
heit v. Green, 705 F.3d 1157, 1160 (10th
Cir.2012); see also Lucero v. Bureau of
Collection Recovery, Inc., 639 F.3d
1239, 1242–43 (10th Cir.2011)
(acknowledging that the capable-
of-repetition-yet-evading-review class of
cases constitutes an exception to moot-
ness and noting that such “exceptions do
not extend to the standing inquiry”). The
Barton couple's claim is plainly not
moot, as they continue to desire recogni-
tion for their marriage and continue to be
denied such recognition. See United
States v. Alaska, 503 U.S. 569, 575 n. 4,
112 S.Ct. 1606, 118 L.Ed.2d 222 (1992)
(“We agree that the controversy is not
moot, since it involves a continuing con-
troversy....”). At any rate, to the extent
the capable-
of-repetition-yet-evading-review test
does go to redressability, the com-
plained-of conduct, i.e., the denial of
marriage recognition, does not evade re-
view. Rather, as discussed above, a non-
recognition couple could easily seek re-
cognition from the State in some fash-
ion, such as by filing a joint tax return,
and when recognition was denied, the
couple could then sue the official re-
sponsible for that non-recognition de-
cision.
FN14. In the plaintiffs' eyes, standing on
non-recognition can be found by virtue of
the fact that Smith, and the court system
that employs her, would not refuse to hon-
or a court order enjoining enforcement of
Part B. It is of no moment that Smith
would presumably obey a judicial invalida-
tion of Part B if she were directed to en-
force the provision. The problem is there is
no reason to believe that she enforces the
provision at all, and thus no conceivable
injunction for her to obey.
FN15. In their response to Smith's motion
for summary judgment, the plaintiffs did
submit in passing that Smith's affidavit
might create an injury in its own right,
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namely, the erection of “a barrier making it
more difficult for members of a group to
obtain a benefit.” However, the plaintiffs
did not frame this argument in terms of ac-
cess to the state court system, and it is
more naturally read as a point about access
to the federal court system. After all, a
finding of no standing on the basis of
Smith's affidavit removes the Barton
couple from federal court, not from state
court.
FN16. The parties in Kitchen did not ad-
dress severability in their appellate brief-
ing, thereby rendering the issue waived in
that case through briefing omission and re-
lieving this court of any responsibility to
discuss the matter in its opinion. See
United States v. Bader, 678 F.3d 858, 894
(10th Cir.2012) (observing that a litigant's
briefing omissions prompt the conclusion
that he or she “has waived [the] argu-
ment”).
FN17. A litigant may obtain relief under
the plain-error doctrine upon a showing of
“(1) an error, (2) that is plain, which means
clear or obvious under current law, and (3)
that affects substantial rights. If [she] satis-
fies these criteria, this Court may exercise
discretion to correct the error if it seriously
affects the fairness, integrity, or public
reputation of judicial proceedings.” United
States v. Goode, 483 F.3d 676, 681 (10th
Cir.2007) (quotation omitted).
FN18. The plaintiffs use Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 105
S.Ct. 2794, 86 L.Ed.2d 394 (1985), and
Panhandle Eastern Pipeline Co. v. State of
Oklahoma ex rel. Commissioners of Land
Office, 83 F.3d 1219 (10th Cir.1996), to
bolster their view that a court has an oblig-
ation to consider severability even in the
face of forfeiture. Cf. Acosta v. City of
Costa Mesa, 694 F.3d 960, 974 n. 7 (9th
Cir.2012) (relying upon Brockett, inter
alia, to support the proposition that
“severability is an inherent part of the pro-
cess of constitutional adjudication” that is
not subject to waiver by omission from ap-
pellate briefs), withdrawn, 708 F.3d 1122
(9th Cir.2013). Neither Brockett nor Pan-
handle nor any of the other Supreme Court
cases cited by Acosta say anything about
forfeiture or waiver, or anything about
whether severability had been raised or ar-
gued to the trial or appellate courts. Given
this silence, the explicit invocation of
waiver by Awad in a comparable case is
controlling here on the question of whether
severability must be considered sua sponte.
FN19. Because the plaintiffs' severability
theory is forfeited, there is no need to con-
sider Smith's argument that a severability
analysis regarding Part B is foreclosed by
the plaintiffs' lack of standing to challenge
that provision. See Sinochem Int'l Co., 549
U.S. at 431 (authorizing federal courts to
choose at their discretion among alternat-
ive threshold grounds for disposing of a
claim without reaching its merits); accord
Niemi, 728 F.3d at 1260.
FN1. Following the majority opinion, I
will refer to Oklahoma's same-sex mar-
riage provision embodied in its constitu-
tion, Okla. Const. art. II, § 35, as “SQ
711.” Also in keeping with the majority
opinion, I will refer to SQ 711's ban on
same-sex marriage as “Part A” and will
refer to SQ 711's non-recognition clause as
“Part B.”
FN2. I also fully embrace the remainder of
the majority's opinion (both its outcome
and reasoning) regarding the non-
recognition claim: that is, that the Barton
couple lacked standing to pursue that claim
and that Part B cannot be invalidated pur-
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suant to severability law because the
plaintiffs forfeited their severability argu-
ment.
FN3. See Kitchen v. Herbert, ––– F.3d
––––, 2014 WL 2868044, at *32 (10th
Cir.2014); Love v. Beshear, ––– F.Supp.2d
––––, 2014 WL 2957671, at *7 n. 14
(W.D.Ky.2014); Wolf v. Walker, 986
F.Supp.2d 982, 2014 WL 2558444, at *33
(W.D.Wis.2014); Whitewood v. Wolf,
–––F.Supp.2d ––––, 2014 WL 2058105, at
*15 (M.D.Pa.2014); Geiger v. Kitzhaber,
––– F.Supp.2d ––––, 2014 WL 2054264, at
*14 (D.Or.2014); Latta v. Otter, –––
F.Supp.2d ––––, 2014 WL 1909999, at *28
(D.Idaho 2014); Baskin v. Bogan, –––
F.Supp.2d ––––, 2014 WL 1568884, at *3
(S.D.Ind.2014); DeBoer v. Snyder, 973
F.Supp.2d 757, 775 (E.D.Mich.2014);
Tanco v. Haslam, ––– F.Supp.2d ––––,
2014 WL 997525, at *6 (M.D.Tenn.2014);
Bostic v. Rainey, 970 F.Supp.2d 456, 482
(E.D.Va.2014); Bourke v. Beshear, –––
F.Supp.2d ––––, 2014 WL 556729, at *6–7
(W.D.Ky.2014); Kitchen v. Herbert, 961
F.Supp.2d 1181, 1209–10 (D.Utah 2013),
aff'd, 2014 WL 2868044; Griego v. Oliver,
316 P.3d 865, 888 (N.M.2013).
FN4. A pair of Supreme Court cases
handed down a day apart in 1982 are occa-
sionally also included in lists of the Court's
animus decisions: Plyler v. Doe, 457 U.S.
202, 102 S.Ct. 2382, 72 L.Ed.2d 786
(1982), and Zobel v. Williams, 457 U.S.
55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982).
See, e.g., Milner v. Apfel, 148 F.3d 812,
816 (7th Cir.1998) (including Plyler and
Zobel in a list of the Court's animus cases);
Susannah W. Pollvogt, Unconstitutional
Animus, 81 Fordham L.Rev. 887, 899–900
(2012) (same). A careful reading of these
two decisions, however, causes me to dis-
agree with this inclusion. See Plyler, 457
U.S. at 227–30; Zobel, 457 U.S. at 60–64.
Although Plyler and Zobel arguably under-
take a slightly more penetrating analysis,
rooted in the States' arguments, than com-
monly found in rational-basis cases, the
Court's gaze in the two cases still extends
no further than the “ colorable state in-
terests that might support” the challenged
classification. Plyler, 457 U.S. at 227
(emphases added); see Zobel, 457 U.S. at
61 & 61 n. 7 (noting the State's proffered
“three purposes justifying the distinctions
made by” the challenged classification and
noting that the Court “need not speculate
as to the objectives of the legislature” be-
cause they were codified in the legislation
at issue). As such, Plyler and Zobel are, at
the very least, more akin to the mine-run
rational-basis cases than they are to the an-
imus cases, which (as noted infra) have as
their hallmark looking beyond colorable
interests promoted by the challenged law
into the actual motivation behind the gov-
ernmental action at issue. This sui generis
form of equal-protection review is absent
in Plyler and Zobel; accordingly, I will not
rely upon those cases in my discussion of
the animus doctrine. See Massachusetts v.
U.S. Dep't of Health & Human Servs., 682
F.3d 1, 10 (1st Cir.2012) (limiting the list
of the Supreme Court's animus cases to
Romer, Cleburne, and Moreno); Tiffany C.
Graham, Rethinking Section Five: Defer-
ence, Direct Regulation, and Restoring
Congressional Authority to Enforce the
Fourteenth Amendment, 65 Rutgers L.Rev.
667, 716 (2013) (same).
FN5. Some of the plaintiffs' amici interpret
the animus cases quite broadly, to the ex-
tent that they understand them for all in-
tents and purposes not to involve hostility
at all. See, e.g., Equality Utah Found. &
Utah Pride Ctr. Br. at 10 (“While the Su-
preme Court has sometimes suggested that
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laws drawn for the purpose of disad-
vantaging a group are based on ‘animus,’
that term simply denotes the absence of an
‘independent and legitimate’ purpose for
the law, not a subjective disdain for or dis-
like of a particular class.” (quoting Romer,
517 U.S. at 632–33)); Joan Heifetz
Hollinger et al. Br. at 4 n.8 (“ ‘Animus' as
used in Romer is a term of art and does not
mean subjective dislike or hostility, but
simply the absence of any rational reason
for excluding a particular group from pro-
tections.”). That is, in my view, simply not
a plausible reading of the animus cases,
which have targeted laws “born of animos-
ity toward the class of persons affected,”
Romer, 517 U.S. at 634 (emphasis added),
and laws motivated by “a bare congres-
sional desire to harm a politically unpopu-
lar group,” Moreno, 413 U.S. at 534
(emphasis added). See Pollvogt, supra, at
888 (“In short, animus, including hostility
toward a particular social group, is never a
valid basis for legislation or other state ac-
tion.” (emphasis added)).
FN6. It bears mention that the Supreme
Court has periodically consulted legislative
history materials in its search for unconsti-
tutional animus. See United States v. Wind-
sor, ––– U.S. ––––, 133 S.Ct. 2675, 2693,
186 L.Ed.2d 808 (2013) (considering a
House Report in concluding that the
“essence” of the Defense of Marriage Act
(“DOMA”) was “interference with the
equal dignity of same-sex marriages”);
Moreno, 413 U.S. at 534 (detailing legis-
lative history to demonstrate that the chal-
lenged enactment “was intended to prevent
socalled ‘hippies' and ‘hippie communes'
from participating in the food stamp pro-
gram”). Notably, though, the Supreme
Court has never taken into account such
materials when weighing the constitution-
ality of a popularly-enacted law—one
based upon votes directly cast by cit-
izens—like the one before us. And it has
had the opportunity to do so. Romer in-
volved a state constitutional amendment
that was passed by referendum, just as our
case does. 517 U.S. at 623. Yet the Court
did not rely on campaign literature in strik-
ing down the measure, training its gaze in-
stead on the structural attributes of the
amendment that were suggestive of anim-
us, such as its breadth and the novelty of
its effects on the injured class. See id. at
626–35. That is not surprising. The scope
of a popular poll makes it difficult, if not
impossible, for a court to apprehend the
“intent” of individual voters from record
evidence and, therefore, makes it im-
provident to ascribe hostility to that intent
and to nullify the will of the citizenry on
that basis. See Latta, 2014 WL 1909999, at
*21 (“Because over 280,000 Idahoans
voted for Amendment 2, it is not feasible
for the Court to infer a particular purpose
or intent for the provision.”); Fred O.
Smith, Jr., Due Process, Republicanism,
and Direct Democracy, 89 N.Y.U. L.Rev.
582, 610 (2014) (“There is a resounding
absence of [a meaningful legislative] re-
cord when voters directly enact meas-
ures.”).
FN7. Notably, the Supreme Court in Wind-
sor did not expressly identify the tier of
scrutiny that it applied in reviewing the
challenged federal legislation. The extent
to which Windsor is an animus case—as
opposed to, most saliently here, a funda-
mental-rights case—is not pelluc id. Com-
pare Windsor, 133 S.Ct. at 2692 (“Private,
consensual sexual intimacy between two
adult persons of the same sex may not be
punished by the State, and it can form ‘but
one element in a personal bond that is
more enduring.’ By its recognition of the
validity of same-sex marriages performed
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in other jurisdictions and then by authoriz-
ing same-sex unions and same-sex mar-
riages, New York sought to give further
protection and dignity to that bond.”
(citation omitted) (quoting Lawrence v.
Texas, 539 U.S. 558, 567, 123 S.Ct. 2472,
156 L.Ed.2d 508 (2003))), and id. at 2694
(“The differentiation demeans the couple,
whose moral and sexual choices the Con-
stitution protects, and whose relationship
the State has sought to dignify.” (citation
omitted)), with id. at 2693 (“DOMA seeks
to injure the very class New York seeks to
protect.”), and id. at 2695 (“[T]he principal
purpose and the necessary effect of this
law are to demean those persons who are
in a lawful same-sex marriage.”). No mat-
ter how one describes the measure of an-
imus doctrine at work in Windsor, it cannot
be seriously contended that Windsor is en-
tirely lacking in it. In addition to the
quotes recited above, Windsor spoke in
manifestly animus-inflected terms when it
reaffirmed that “[t]he Constitution's guar-
antee of equality ‘must at the very least
mean that a bare congressional desire to
harm a politically unpopular group cannot’
justify disparate treatment of that group,”
id. at 2693 (quoting Moreno, 413 U.S. at
534–35), and when the Court reiterated,
even more tellingly, that “[i]n determining
whether a law is motivated by an improper
animus or purpose, ‘[d]iscriminations of an
unusual character’ especially require care-
ful consideration,” id. (second alteration in
original) (quoting Romer, 517 U.S. at 633)
(internal quotation marks omitted). See
also William D. Araiza, After the Tiers:
Windsor, Congressional Power to Enforce
Equal Protection, and the Challenge of
Pointillist Constitutionalism, 94 B.U.
L.Rev. 367, 368 (2014) (characterizing
Windsor as an animus case); Daniel O.
Conkle, Evolving Values, Animus, and
Same–Sex Marriage, 89 Ind. L.J. 27, 39
(2014) (“The [Windsor] Court's primary
argument ... was that Congress had acted
with illicit ‘animus,’ thus violating equal
protection.”); Darren Lenard Hutchinson, “
Not Without Political Power”: Gays and
Lesbians, Equal Protection and the Sus-
pect Class Doctrine, 65 Ala. L.Rev. 975,
977 (2014) ( “[I]n Windsor, rather than
considering whether gays and lesbians
constitute a suspect class, the Court held
simply that DOMA violates the Equal Pro-
tection Clause because it is a product of
animus directed towards same-sex
couples.”); cf. SmithKline Beecham Corp.
v. Abbott Labs., –––F.3d ––––, 2014 WL
2862588, at *4 (9th Cir.2014)
(O'Scannlain, J., dissenting from denial of
rehearing en banc) (“In declaring [DOMA
§ 3] to be motivated by no ‘legitimate’
purpose, Windsor only applies rational
basis review in the same way that Romer
reviewed Colorado's Amendment 2 for ra-
tional basis.”). In the discussion that fol-
lows, I use Windsor exclusively with refer-
ence to the animus aspect of its reasoning.
FN8. The district court found, “as a matter
of law, that ‘moral disapproval of same-
sex marriage’ existed in the public domain
as at least one justification for voting in fa-
vor of SQ 711.” Bishop, 962 F.Supp.2d at
1289. In support of that finding, the district
court cited statements made by several
state legislators and by other supporters of
the measure. Id. at 1288–89. The district
court's analysis in this regard is most nat-
urally read as relating to its conventional
rational-basis review—wherein it con-
sidered moral disapproval as one conceiv-
able basis for the law—not as germane to a
finding of animus. See id. at 1285 n. 32
(“Because Windsor involved an unusual
federal intrusion into state domestic law
(not at issue here) and Romer involved an
unusual, total removal of any equal protec-
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (73 of 518)
tion of the law (not at issue here), the
Court proceeds to conduct a more tradi-
tional equal protection analysis by determ-
ining the proper level of scrutiny and then
considering all conceivable justifications
for Part A.”); id . at 1288 (“The Court
turns now to the conceivable justifications
for Part A's preclusion of same-sex couples
from receiving an Oklahoma marriage li-
cense[, including moral disapproval].”). As
noted supra, the Supreme Court has under-
standably (indeed, wisely) never taken into
account even more formal expressions of
legislative will (i.e., recorded legislative
history) when weighing the constitutional-
ity of a popularly-enacted law, like the one
before us, despite having had the opportun-
ity to do so. It seems questionable, there-
fore, whether it would be appropriate for a
court undertaking animus review in the
context of such a law to ever consider the
kind of materials cited by the district court
here. At any rate, even assuming that such
materials are cognizable in a case like this,
the few and scattered quotes referenced by
the district court, as well as by the
plaintiffs and some of their amici, offer far
too tenuous a basis to impugn the goodwill
of the roughly one million Oklahomans
who voted for SQ 711. See id. at 1259 n. 1
(finding that SQ 711 was approved by a
vote of 1,075,216 to 347,303).
FN9. In an otherwise incisive opinion, the
United States District Court for the West-
ern District of Wisconsin recently analo-
gized a same-sex marriage ban to the felled
laws in Windsor and Romer, reasoning that
the ban was likewise “unusual” in that it
represented “a rare, if not unprecedented,
act of using the [state] [c]onstitution to re-
strict constitutional rights rather than ex-
pand them.” Walker, 2014 WL 2558444, at
*33 (internal quotation marks omitted).
There are two problems with this argu-
ment. First, it is misleading to suggest that
a ban “restricts” a substantive constitution-
al right that had not been recognized be-
forehand. Constitutional or otherwise, the
plaintiffs' rights with respect to mar-
riage—or lack thereof—were the same be-
fore the ban as after. Second, even if it
were correct to characterize the challenged
laws as restrictions, they would not be re-
strictions of such a type as to qualify as
“unusual” under Windsor and Romer.
DOMA was unusual because it represented
an incursion by the federal government in-
to a province historically dominated by the
States. See Windsor, 133 S.Ct. at 2691
(describing family law as “an area that has
long been regarded as a virtually exclusive
province of the States” (internal quotation
marks omitted)); id. (“The definition of
marriage is the foundation of the State's
broader authority to regulate the subject of
domestic relations ....”); id. (“[T]he states,
at the time of the adoption of the Constitu-
tion, possessed full power over the subject
of marriage and divorce ....“ (alteration in
original) (internal quotation marks omit-
ted)). Colorado's Amendment 2, at issue in
Romer, was unusual because it cut off ho-
mosexuals' rights in an indiscriminate fash-
ion across numerous legal fronts. See 517
U.S. at 627 (“Sweeping and comprehens-
ive is the change in legal status effected by
this law.”); id. at 632 (noting that Amend-
ment 2 had “the peculiar property of im-
posing a broad and undifferentiated disab-
ility on a single named group, an excep-
tional and ... invalid form of legislation”);
id. at 633 (“Amendment 2 ... identifies per-
sons by a single trait and then denies them
protection across the board.”). SQ 711 is
unusual in neither of these ways. It is but
one piece of Oklahoma's marriage regime,
a regime our federalist system entrusts the
States with maintaining, and it simply con-
stitutionalizes a definition that Oklahoma
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© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (74 of 518)
has, since its creation, abided by.
FN1. See, e.g., Wolf v. Walker, No.
14–cv–64, 2014 WL 2558444, at *1, *43
(W.D.Wis. June 6, 2014) (challenging mar-
riage amendment and statutes; injunction
prohibits enforcement of both); Latta v.
Otter, No. 1:13–cv–00482, 2014 WL
1909999, at *3, *29 (D.Idaho May 13,
2014) (same).
FN2. Though this court disclaims an opin-
ion, Judge Holmes' concurrence strongly
suggests that the amendment would sur-
vive rational basis review. According to
the concurrence, Oklahoma's amendment
(1) is limited to a single institution: mar-
riage, (2) is supported by history, legal
precedent, and statutory enactments dating
back to 1973, (3) does not divest anyone of
a pre-existing right, (4) should be viewed
as the product of the goodwill of one mil-
lion Oklahomans, and (5) is consistent
with the State's police power, unlike the
federal intrusion into marriage at issue in
United States v. Windsor, ––– U.S. ––––,
133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).
C.A.10 (Okla.),2014.
Bishop v. Smith
--- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.))
END OF DOCUMENT
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© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (75 of 518)
PUBLISHED

UNI TED STATES COURT OF APPEALS
FOR THE FOURTH CI RCUI T


No. 14-1167


TI MOTHY B. BOSTI C; TONY C. LONDON; CAROL SCHALL; MARY
TOWNLEY,

Plaintiffs − Appellees,

J OANNE HARRI S; J ESSI CA DUFF; CHRI STY BERGHOFF; VI CTORI A
KI DD, on behal f of t hemsel ves and al l ot her s si mi l ar l y
si t uat ed,

I nt er venor s,

v.

GEORGE E. SCHAEFER, I I I , i n hi s of f i ci al capaci t y as t he
Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ,

Def endant – Appel l ant ,

and

J ANET M. RAI NEY, i n her of f i ci al capaci t y as St at e Regi st r ar
of Vi t al Recor ds; ROBERT F. MCDONNELL, i n hi s of f i ci al
capaci t y as Gover nor of Vi r gi ni a; KENNETH T. CUCCI NELLI , I I ,
i n hi s of f i ci al capaci t y as At t or ney Gener al of Vi r gi ni a,

Def endant s,

MI CHÈLE MCQUI GG,

I nt er venor / Def endant .

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DAVI D A. ROBI NSON; ALAN J . HAWKI NS; J ASON S. CARROLL; NORTH
CAROLI NA VALUES COALI TI ON; LI BERTY, LI FE, AND LAW
FOUNDATI ON; SOCI AL SCI ENCE PROFESSORS; FAMI LY RESEARCH
COUNCI L; VI RGI NI A CATHOLI C CONFERENCE, LLC; CENTER FOR
CONSTI TUTI ONAL J URI SPRUDENCE; STATE OF WEST VI RGI NI A;
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 1 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (76 of 518)
2

I NSTI TUTE FOR MARRI AGE AND PUBLI C POLI CY; HELEN M. ALVARE;
STATE OF I NDI ANA; STATE OF ALABAMA; STATE OF ALASKA; STATE
OF ARI ZONA; STATE OF COLORADO; STATE OF I DAHO; STATE OF
LOUI SI ANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLI NA; STATE OF SOUTH DAKOTA;
STATE OF UTAH; STATE OF WYOMI NG; WALLBUI LDERS, LLC; LI BERTY
COUNSEL; AMERI CAN COLLEGE OF PEDI ATRI CI ANS; SCHOLARS OF
HI STORY AND RELATED DI SCI PLI NES; AMERI CAN LEADERSHI P FUND;
ROBERT P. GEORGE; SHERI F GI RGI S; RYAN T. ANDERSON; PAUL
MCHUGH; UNI TED STATES CONFERENCE OF CATHOLI C BI SHOPS;
NATI ONAL ASSOCI ATI ON OF EVANGELI CALS; CHURCH OF J ESUS CHRI ST
OF LATTER−DAY SAINTS; THE ETHI CS & RELI GI OUS LI BERTY
COMMI SSI ON OF THE SOUTHERN BAPTI ST CONVENTI ON; LUTHERAN
CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS
LI BERTY; EAGLE FORUM EDUCATI ON AND LEGAL DEFENSE FUND; DAVI D
BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERI CA; THE
FAMI LY FOUNDATI ON OF VI RGI NI A,

Ami ci Suppor t i ng Appel l ant ,

CONSTI TUTI ONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE
BOLLI NGER; ERWI N CHEMERI NSKY; WALTER DELLI NGER; MI CHAEL C.
DORF; LEE EPSTEI N; DANI EL FARBER; BARRY FRI EDMAN; MI CHAEL
J AY GERHARDT, Pr of essor ; DEBORAH HELLMAN; J OHN CALVI N
J EFFRI ES, J R. ; LAWRENCE LESSI G; WI LLI AM MARSHALL; FRANK
MI CHELMAN; J ANE S. SCHACTER; CHRI STOPHER H. SCHROEDER;
SUZANNA SHERRY; GEOFFREY R. STONE; DAVI D STRAUSS; LAURENCE
H. TRI BE, Pr of essor ; WI LLI AM VAN ALSTYNE; OUTSERVE−SLDN; THE
AMERI CAN MI LI TARY PARTNER ASSOCI ATI ON; THE AMERI CAN
SOCI OLOGI CAL ASSOCI ATI ON; VI RGI NI A CONSTI TUTI ONAL LAW
PROFESSORS; AMERI CAN PSYCHOLOGI CAL ASSOCI ATI ON; THE AMERI CAN
ACADEMY OF PEDI ATRI CS; AMERI CAN PSYCHI ATRI C ASSOCI ATI ON;
NATI ONAL ASSOCI ATI ON OF SOCI AL WORKERS; VI RGI NI A
PSYCHOLOGI CAL ASSOCI ATI ON; EQUALI TY NC; SOUTH CAROLI NA
QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCI E
FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARI GNAN;
MEGAN PARKER; TERRI BECK; LESLI E ZANAGLI O; LEE KNI GHT
CAFFERY; DANA DRAA; SHAWN LONG; CRAI G J OHNSON; ESMERALDA
MEJIA; CHRISTINA GINTER−MEJIA; CATO INSTITUTE;
CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER; HI STORI ANS OF
MARRI AGE; PETER W. BARDAGLI O; NORMA BASCH; STEPHANI E COONTZ;
NANCY F. COTT; TOBY L. DI TZ; ARI ELA R. DUBLER; LAURA F.
EDWARDS; SARAH BARRI NGER GORDON; MI CHAEL GROSSBERG; HENDRI K
HARTOG; ELLEN HERMAN; MARTHA HODES; LI NDA K. KERBER; ALI CE
KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN
MI NTZ; ELI ZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY
DRU STANLEY; BARBARA WELKE; PARENTS, FAMI LI ES AND FRI ENDS OF
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 2 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (77 of 518)
3

LESBI ANS AND GAYS, I NC. ; KERRY ABRAMS, Al ber t Cl ar k Tat e,
J r . Pr of essor of Law, Uni ver si t y of Vi r gi ni a School of Law;
VI VI AN HAMI LTON, Pr of essor of Law, Wi l l i am and Mar y;
MEREDI TH HARBACH, Pr of essor of Law, Uni ver si t y of Ri chmond;
J OAN HEI FETZ HOLLI NGER, J ohn and El i zabet h Boal t Lect ur er i n
Resi dence, Uni ver si t y of Cal i f or ni a, Ber kel ey School of Law;
COURTNEY G. J OSLI N, Pr of essor of Law, Uni ver si t y of
Cal i f or ni a, Davi s School of Law; NAACP LEGAL DEFENSE AND
EDUCATI ON FUND, I NC. ; NATI ONAL ASSOCI ATI ON FOR THE
ADVANCEMENT OF COLORED PEOPLE; HOWARD UNI VERSI TY SCHOOL OF
LAW CI VI L RI GHTS CLI NI C; FAMI LY EQUALI TY COUNCI L; COLAGE;
GLMA: HEALTH PROFESSI ONALS ADVANCI NG LGBT EQUALI TY; WI LLI AM
N. ESKRI DGE, J R. ; REBECCA L. BROWN; DANI EL A. FARBER;
MI CHAEL GERHARDT; J ACK KNI GHT; ANDREW KOPPELMAN; MELI SSA
LAMB SAUNDERS; NEI L S. SI EGEL; J ANA B. SI NGER; HI STORI ANS OF
ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS
UNI TED FOR SEPARATI ON OF CHURCH AND STATE; BEND THE ARC: A
J EWI SH PARTNERSHI P FOR J USTI CE; HADASSAH, THE WOMEN' S
ZI ONI ST ORGANI ZATI ON OF AMERI CA; HI NDU AMERI CAN FOUNDATI ON;
THE I NTERFAI TH ALLI ANCE FOUNDATI ON; J APANESE AMERI CAN
CI TI ZENS LEAGUE; J EWI SH SOCI AL POLI CY ACTI ON NETWORK;
KESHET; METROPOLI TAN COMMUNI TY CHURCHES; MORE LI GHT
PRESBYTERI ANS; THE NATI ONAL COUNCI L OF J EWI SH WOMEN;
NEHI RI M; PEOPLE FOR THE AMERI CAN WAY FOUNDATI ON;
PRESBYTERI AN WELCOME; RECONCI LI NGWORKS: LUTHERANS FOR FULL
PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; SI KH AMERI CAN
LEGAL DEFENSE AND EDUCATI ON FUND; SOCI ETY FOR HUMANI STI C
J UDAI SM; T' RUAH: THE RABBI NI C CALL FOR HUMAN RI GHTS; WOMEN' S
LEAGUE FOR CONSERVATI VE J UDAI SM; COLUMBI A LAW SCHOOL
SEXUALI TY AND GENDER LAW CLI NI C; BI SHOPS OF THE EPI SCOPAL
CHURCH I N VI RGI NI A; CENTRAL ATLANTI C CONFERENCE OF THE
UNI TED CHURCH OF CHRI ST; CENTRAL CONFERENCE OF AMERI CAN
RABBI S; MORMONS FOR EQUALI TY; RECONSTRUCTI ONI ST RABBI NI CAL
ASSOCI ATI ON; RECONSTRUCTI ONI ST RABBI NI CAL COLLEGE AND J EWI SH
RECONSTRUCTI ONI ST COMMUNI TI ES; UNI ON FOR REFORM J UDAI SM; THE
UNI TARI AN UNI VERSALI ST ASSOCI ATI ON; AFFI RMATI ON; COVENANT
NETWORK OF PRESBYTERI ANS; METHODI ST FEDERATI ON FOR SOCI AL
ACTI ON; MORE LI GHT PRESBYTERI ANS; PRESBYTERI AN WELCOME;
RECONCI LI NG MI NI STRI ES NETWORK; RECONCI LI NGWORKS: LUTHERANS
FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; WOMEN OF
REFORM J UDAI SM; 28 EMPLOYERS AND ORGANI ZATI ONS REPRESENTI NG
EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF
CALI FORNI A; STATE OF CONNECTI CUT; DI STRI CT OF COLUMBI A;
STATE OF I LLI NOI S; STATE OF I OWA; STATE OF MAI NE; STATE OF
MARYLAND; STATE OF NEWHAMPSHI RE; STATE OF NEWMEXI CO; STATE
OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF
WASHI NGTON; GARY J . GATES; NATI ONAL AND WESTERN STATES
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 3 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (78 of 518)
4

WOMEN' S RI GHTS ORGANI ZATI ONS; VI RGI NI A CHAPTER OF THE
AMERI CAN ACADEMY OF MATRI MONI AL LAWYERS; THE NATI ONAL
WOMEN' S LAW CENTER; EQUAL RI GHTS ADVOCATES; LEGAL MOMENTUM;
NATI ONAL ASSOCI ATI ON OF WOMEN LAWYERS; NATI ONAL PARTNERSHI P
FOR WOMEN & FAMI LI ES; SOUTHWEST WOMEN' S LAW CENTER; WOMEN' S
LAW PROJ ECT; PROFESSORS OF LAW ASSOCI ATED WI TH THE WI LLI AMS
I NSTI TUTE; BAY AREA LAWYERS FOR I NDI VI DUAL FREEDOM;
LEADERSHI P CONFERENCE ON CI VI L AND HUMAN RI GHTS; PUBLI C
I NTEREST ORGANI ZATI ONS; BAR ASSOCI ATI ONS; FAMI LY LAW AND
CONFLI CT OF LAWS PROFESSORS; GAY AND LESBI AN ADVOCATES AND
DEFENDERS; PEOPLE OF FAI TH FOR EQUALI TY I N VI RGI NI A;
CELEBRATI ON CENTER FOR SPI RI TUAL LI VI NG; CLARENDON
PRESBYTERI AN CHURCH; COMMONWEALTH BAPTI ST CHURCH;
CONGREGATI ON OR AMI ; HOPE UNI TED CHURCH OF CHRI ST; LI TTLE
RI VER UCC; METROPOLI TAN COMMUNI TY CHURCH OF NORTHERN
VI RGI NI A; MT. VERNON UNI TARI AN CHURCH; ST. J AMES UCC, ; ST.
J OHN' S UCC; NEW LI FE METROPOLI TAN COMMUNI TY CHURCH;
UNI TARI AN UNI VERSALI ST FELLOWSHI P OF THE PENI NSULA;
UNI TARI AN UNI VERSALI ST CONGREGATI ON OF STERLI NG; UNI TED
CHURCH OF CHRI ST OF FREDERI CKSBURG; UNI TARI AN UNI VERSALI ST
CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARI E HULM ADAM; REV.
MARTY ANDERSON; REV ROBI N ANDERSON; REV. VERNE ARENS; RABBI
LI A BASS; REV. J OSEPH G. BEATTI E; REV. SUE BROWNI NG; REV.
J I M BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR.
J OHN COPERHAVER; RABBI GARY CREDI TOR; REV. DAVI D ENSI GN;
REV. HENRY FAI RMAN; RABBI J ESSE GALLOP; REV. TOM
GERSTENLAUER; REV. ROBI N H. GORSLI NE; REV. TRI SH HALL; REV.
WARREN HAMMONDS; REV. J ON HEASLET; REV. DOUGLAS HODGES; REV.
PHYLLI S HUBBELL; REV. STEPHEN G. HYDE; REV. J ANET J AMES;
REV. J OHN MANWELL; REV. J AMES W. MCNEAL; REV. MARC BOSWELL;
REV. ANDREW CLI VE MI LLARD; REV. DR. MELANI E MI LLER; REV.
AMBER NEUROTH; REV. J AMES PAPI LE; REV. LI NDA OLSON PEEBLES;
REV. DON PRANGE; RABBI MI CHAEL RAGOZI N; RABBI BEN ROMER;
REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY
SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURI ANO; REV. ROB
VAUGHN; REV. DANI EL VELEZ−RIVERA; REV. KATE R. WALKER; REV.
TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Ami ci Suppor t i ng Appel l ees.








Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 4 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (79 of 518)
5



No. 14-1169


TI MOTHY B. BOSTI C; TONY C. LONDON; CAROL SCHALL; MARY
TOWNLEY,

Plaintiffs − Appellees,

J OANNE HARRI S; J ESSI CA DUFF; CHRI STY BERGHOFF; VI CTORI A
KI DD, on behal f of t hemsel ves and al l ot her s si mi l ar l y
si t uat ed,

I nt er venor s,

v.

J ANET M. RAI NEY, i n her of f i ci al capaci t y as St at e Regi st r ar
of Vi t al Recor ds,

Def endant – Appel l ant ,

and

GEORGE E. SCHAEFER, I I I , i n hi s of f i ci al capaci t y as t he
Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ; ROBERT F.
MCDONNELL, i n hi s of f i ci al capaci t y as Gover nor of Vi r gi ni a;
KENNETH T. CUCCI NELLI , I I , i n hi s of f i ci al capaci t y as
At t or ney Gener al of Vi r gi ni a,

Def endant s,

MI CHÈLE MCQUI GG,

I nt er venor / Def endant .

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DAVI D A. ROBI NSON; ALAN J . HAWKI NS; J ASON S. CARROLL; NORTH
CAROLI NA VALUES COALI TI ON; LI BERTY, LI FE, AND LAW
FOUNDATI ON; SOCI AL SCI ENCE PROFESSORS; FAMI LY RESEARCH
COUNCI L; VI RGI NI A CATHOLI C CONFERENCE, LLC; CENTER FOR
CONSTI TUTI ONAL J URI SPRUDENCE; STATE OF WEST VI RGI NI A;
I NSTI TUTE FOR MARRI AGE AND PUBLI C POLI CY; HELEN M. ALVARE;
STATE OF I NDI ANA; STATE OF ALABAMA; STATE OF ALASKA; STATE
OF ARI ZONA; STATE OF COLORADO; STATE OF I DAHO; STATE OF
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 5 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (80 of 518)
6

LOUI SI ANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLI NA; STATE OF SOUTH DAKOTA;
STATE OF UTAH; STATE OF WYOMI NG; WALLBUI LDERS, LLC; LI BERTY
COUNSEL; AMERI CAN COLLEGE OF PEDI ATRI CI ANS; SCHOLARS OF
HI STORY AND RELATED DI SCI PLI NES; AMERI CAN LEADERSHI P FUND;
ROBERT P. GEORGE; SHERI F GI RGI S; RYAN T. ANDERSON; PAUL
MCHUGH; UNI TED STATES CONFERENCE OF CATHOLI C BI SHOPS;
NATI ONAL ASSOCI ATI ON OF EVANGELI CALS; CHURCH OF J ESUS CHRI ST
OF LATTER−DAY SAINTS; THE ETHI CS & RELI GI OUS LI BERTY
COMMI SSI ON OF THE SOUTHERN BAPTI ST CONVENTI ON; LUTHERAN
CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS
LI BERTY; EAGLE FORUM EDUCATI ON AND LEGAL DEFENSE FUND; DAVI D
BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERI CA; THE
FAMI LY FOUNDATI ON OF VI RGI NI A,

Ami ci Suppor t i ng Appel l ant ,

CONSTI TUTI ONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE
BOLLI NGER; ERWI N CHEMERI NSKY; WALTER DELLI NGER; MI CHAEL C.
DORF; LEE EPSTEI N; DANI EL FARBER; BARRY FRI EDMAN; MI CHAEL
J AY GERHARDT, Pr of essor ; DEBORAH HELLMAN; J OHN CALVI N
J EFFRI ES, J R. ; LAWRENCE LESSI G; WI LLI AM MARSHALL; FRANK
MI CHELMAN; J ANE S. SCHACTER; CHRI STOPHER H. SCHROEDER;
SUZANNA SHERRY; GEOFFREY R. STONE; DAVI D STRAUSS; LAURENCE
H. TRI BE, Pr of essor ; WI LLI AM VAN ALSTYNE; OUTSERVE−SLDN; THE
AMERI CAN MI LI TARY PARTNER ASSOCI ATI ON; THE AMERI CAN
SOCI OLOGI CAL ASSOCI ATI ON; VI RGI NI A CONSTI TUTI ONAL LAW
PROFESSORS; AMERI CAN PSYCHOLOGI CAL ASSOCI ATI ON; THE AMERI CAN
ACADEMY OF PEDI ATRI CS; AMERI CAN PSYCHI ATRI C ASSOCI ATI ON;
NATI ONAL ASSOCI ATI ON OF SOCI AL WORKERS; VI RGI NI A
PSYCHOLOGI CAL ASSOCI ATI ON; EQUALI TY NC; SOUTH CAROLI NA
QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCI E
FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN;
MEGAN PARKER; TERRI BECK; LESLI E ZANAGLI O; LEE KNI GHT
CAFFERY; DANA DRAA; SHAWN LONG; CRAI G J OHNSON; ESMERALDA
MEJIA; CHRISTINA GINTER−MEJIA; CATO INSTITUTE;
CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER; HI STORI ANS OF
MARRI AGE; PETER W. BARDAGLI O; NORMA BASCH; STEPHANI E COONTZ;
NANCY F. COTT; TOBY L. DI TZ; ARI ELA R. DUBLER; LAURA F.
EDWARDS; SARAH BARRI NGER GORDON; MI CHAEL GROSSBERG; HENDRI K
HARTOG; ELLEN HERMAN; MARTHA HODES; LI NDA K. KERBER; ALI CE
KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN
MI NTZ; ELI ZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY
DRU STANLEY; BARBARA WELKE; PARENTS, FAMI LI ES AND FRI ENDS OF
LESBI ANS AND GAYS, I NC. ; KERRY ABRAMS, Al ber t Cl ar k Tat e,
J r . Pr of essor of Law, Uni ver si t y of Vi r gi ni a School of Law;
VI VI AN HAMI LTON, Pr of essor of Law, Wi l l i am and Mar y;
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 6 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (81 of 518)
7

MEREDI TH HARBACH, Pr of essor of Law, Uni ver si t y of Ri chmond;
J OAN HEI FETZ HOLLI NGER, J ohn and El i zabet h Boal t Lect ur er i n
Resi dence, Uni ver si t y of Cal i f or ni a, Ber kel ey School of Law;
COURTNEY G. J OSLI N, Pr of essor of Law, Uni ver si t y of
Cal i f or ni a, Davi s School of Law; NAACP LEGAL DEFENSE AND
EDUCATI ON FUND, I NC. ; NATI ONAL ASSOCI ATI ON FOR THE
ADVANCEMENT OF COLORED PEOPLE; HOWARD UNI VERSI TY SCHOOL OF
LAW CI VI L RI GHTS CLI NI C; FAMI LY EQUALI TY COUNCI L; COLAGE;
GLMA: HEALTH PROFESSI ONALS ADVANCI NG LGBT EQUALI TY; WI LLI AM
N. ESKRI DGE, J R. ; REBECCA L. BROWN; DANI EL A. FARBER;
MI CHAEL GERHARDT; J ACK KNI GHT; ANDREW KOPPELMAN; MELI SSA
LAMB SAUNDERS; NEI L S. SI EGEL; J ANA B. SI NGER; HI STORI ANS OF
ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS
UNI TED FOR SEPARATI ON OF CHURCH AND STATE; BEND THE ARC: A
J EWI SH PARTNERSHI P FOR J USTI CE; HADASSAH, THE WOMEN' S
ZI ONI ST ORGANI ZATI ON OF AMERI CA; HI NDU AMERI CAN FOUNDATI ON;
THE I NTERFAI TH ALLI ANCE FOUNDATI ON; J APANESE AMERI CAN
CI TI ZENS LEAGUE; J EWI SH SOCI AL POLI CY ACTI ON NETWORK;
KESHET; METROPOLI TAN COMMUNI TY CHURCHES; MORE LI GHT
PRESBYTERI ANS; THE NATI ONAL COUNCI L OF J EWI SH WOMEN;
NEHI RI M; PEOPLE FOR THE AMERI CAN WAY FOUNDATI ON;
PRESBYTERI AN WELCOME; RECONCI LI NGWORKS: LUTHERANS FOR FULL
PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; SI KH AMERI CAN
LEGAL DEFENSE AND EDUCATI ON FUND; SOCI ETY FOR HUMANI STI C
J UDAI SM; T' RUAH: THE RABBI NI C CALL FOR HUMAN RI GHTS; WOMEN' S
LEAGUE FOR CONSERVATI VE J UDAI SM; COLUMBI A LAW SCHOOL
SEXUALI TY AND GENDER LAW CLI NI C; BI SHOPS OF THE EPI SCOPAL
CHURCH I N VI RGI NI A; CENTRAL ATLANTI C CONFERENCE OF THE
UNI TED CHURCH OF CHRI ST; CENTRAL CONFERENCE OF AMERI CAN
RABBI S; MORMONS FOR EQUALI TY; RECONSTRUCTI ONI ST RABBI NI CAL
ASSOCI ATI ON; RECONSTRUCTI ONI ST RABBI NI CAL COLLEGE AND J EWI SH
RECONSTRUCTI ONI ST COMMUNI TI ES; UNI ON FOR REFORM J UDAI SM; THE
UNI TARI AN UNI VERSALI ST ASSOCI ATI ON; AFFI RMATI ON; COVENANT
NETWORK OF PRESBYTERI ANS; METHODI ST FEDERATI ON FOR SOCI AL
ACTI ON; MORE LI GHT PRESBYTERI ANS; PRESBYTERI AN WELCOME;
RECONCI LI NG MI NI STRI ES NETWORK; RECONCI LI NGWORKS: LUTHERANS
FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; WOMEN OF
REFORM J UDAI SM; 28 EMPLOYERS AND ORGANI ZATI ONS REPRESENTI NG
EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF
CALI FORNI A; STATE OF CONNECTI CUT; DI STRI CT OF COLUMBI A;
STATE OF I LLI NOI S; STATE OF I OWA; STATE OF MAI NE; STATE OF
MARYLAND; STATE OF NEWHAMPSHI RE; STATE OF NEWMEXI CO; STATE
OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF
WASHI NGTON; GARY J . GATES; NATI ONAL AND WESTERN STATES
WOMEN' S RI GHTS ORGANI ZATI ONS; VI RGI NI A CHAPTER OF THE
AMERI CAN ACADEMY OF MATRI MONI AL LAWYERS; THE NATI ONAL
WOMEN' S LAW CENTER; EQUAL RI GHTS ADVOCATES; LEGAL MOMENTUM;
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 7 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (82 of 518)
8

NATI ONAL ASSOCI ATI ON OF WOMEN LAWYERS; NATI ONAL PARTNERSHI P
FOR WOMEN & FAMI LI ES; SOUTHWEST WOMEN' S LAW CENTER; WOMEN' S
LAW PROJ ECT; PROFESSORS OF LAW ASSOCI ATED WI TH THE WI LLI AMS
I NSTI TUTE; BAY AREA LAWYERS FOR I NDI VI DUAL FREEDOM;
LEADERSHI P CONFERENCE ON CI VI L AND HUMAN RI GHTS; PUBLI C
I NTEREST ORGANI ZATI ONS; BAR ASSOCI ATI ONS; FAMI LY LAW AND
CONFLI CT OF LAWS PROFESSORS; GAY AND LESBI AN ADVOCATES AND
DEFENDERS; PEOPLE OF FAI TH FOR EQUALI TY I N VI RGI NI A;
CELEBRATI ON CENTER FOR SPI RI TUAL LI VI NG; CLARENDON
PRESBYTERI AN CHURCH; COMMONWEALTH BAPTI ST CHURCH;
CONGREGATI ON OR AMI ; HOPE UNI TED CHURCH OF CHRI ST; LI TTLE
RI VER UCC; METROPOLI TAN COMMUNI TY CHURCH OF NORTHERN
VI RGI NI A; MT. VERNON UNI TARI AN CHURCH; ST. J AMES UCC, ; ST.
J OHN' S UCC; NEW LI FE METROPOLI TAN COMMUNI TY CHURCH;
UNI TARI AN UNI VERSALI ST FELLOWSHI P OF THE PENI NSULA;
UNI TARI AN UNI VERSALI ST CONGREGATI ON OF STERLI NG; UNI TED
CHURCH OF CHRI ST OF FREDERI CKSBURG; UNI TARI AN UNI VERSALI ST
CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARI E HULM ADAM; REV.
MARTY ANDERSON; REV ROBI N ANDERSON; REV. VERNE ARENS; RABBI
LI A BASS; REV. J OSEPH G. BEATTI E; REV. SUE BROWNI NG; REV.
J I M BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR.
J OHN COPERHAVER; RABBI GARY CREDI TOR; REV. DAVI D ENSI GN;
REV. HENRY FAI RMAN; RABBI J ESSE GALLOP; REV. TOM
GERSTENLAUER; REV. ROBI N H. GORSLI NE; REV. TRI SH HALL; REV.
WARREN HAMMONDS; REV. J ON HEASLET; REV. DOUGLAS HODGES; REV.
PHYLLI S HUBBELL; REV. STEPHEN G. HYDE; REV. J ANET J AMES;
REV. J OHN MANWELL; REV. J AMES W. MCNEAL; REV. MARC BOSWELL;
REV. ANDREW CLI VE MI LLARD; REV. DR. MELANI E MI LLER; REV.
AMBER NEUROTH; REV. J AMES PAPI LE; REV. LI NDA OLSON PEEBLES;
REV. DON PRANGE; RABBI MI CHAEL RAGOZI N; RABBI BEN ROMER;
REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY
SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURI ANO; REV. ROB
VAUGHN; REV. DANI EL VELEZ−RIVERA; REV. KATE R. WALKER; REV.
TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Ami ci Suppor t i ng Appel l ees.











Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 8 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (83 of 518)
9



No. 14-1173


TI MOTHY B. BOSTI C; TONY C. LONDON; CAROL SCHALL; MARY
TOWNLEY,

Plaintiffs − Appellees,

J OANNE HARRI S; J ESSI CA DUFF; CHRI STY BERGHOFF; VI CTORI A
KI DD, on behal f of t hemsel ves and al l ot her s si mi l ar l y
si t uat ed,

I nt er venor s,

v.

MI CHÈLE MCQUI GG,

I nt er venor / Def endant – Appel l ant ,

and

GEORGE E. SCHAEFER, I I I , i n hi s of f i ci al capaci t y as t he
Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ; J ANET M. RAI NEY,
i n her of f i ci al capaci t y as St at e Regi st r ar of Vi t al
Recor ds; ROBERT F. MCDONNELL, i n hi s of f i ci al capaci t y as
Gover nor of Vi r gi ni a; KENNETH T. CUCCI NELLI , I I , i n hi s
of f i ci al capaci t y as At t or ney Gener al of Vi r gi ni a,

Def endant s.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DAVI D A. ROBI NSON; ALAN J . HAWKI NS; J ASON S. CARROLL; NORTH
CAROLI NA VALUES COALI TI ON; LI BERTY, LI FE, AND LAW
FOUNDATI ON; SOCI AL SCI ENCE PROFESSORS; FAMI LY RESEARCH
COUNCI L; VI RGI NI A CATHOLI C CONFERENCE, LLC; CENTER FOR
CONSTI TUTI ONAL J URI SPRUDENCE; STATE OF WEST VI RGI NI A;
I NSTI TUTE FOR MARRI AGE AND PUBLI C POLI CY; HELEN M. ALVARE;
STATE OF I NDI ANA; STATE OF ALABAMA; STATE OF ALASKA; STATE
OF ARI ZONA; STATE OF COLORADO; STATE OF I DAHO; STATE OF
LOUI SI ANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLI NA; STATE OF SOUTH DAKOTA;
STATE OF UTAH; STATE OF WYOMI NG; WALLBUI LDERS, LLC; LI BERTY
COUNSEL; AMERI CAN COLLEGE OF PEDI ATRI CI ANS; SCHOLARS OF
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 9 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (84 of 518)
10

HI STORY AND RELATED DI SCI PLI NES; AMERI CAN LEADERSHI P FUND;
ROBERT P. GEORGE; SHERI F GI RGI S; RYAN T. ANDERSON; PAUL
MCHUGH; UNI TED STATES CONFERENCE OF CATHOLI C BI SHOPS;
NATI ONAL ASSOCI ATI ON OF EVANGELI CALS; CHURCH OF J ESUS CHRI ST
OF LATTER−DAY SAINTS; THE ETHI CS & RELI GI OUS LI BERTY
COMMI SSI ON OF THE SOUTHERN BAPTI ST CONVENTI ON; LUTHERAN
CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS
LI BERTY; EAGLE FORUM EDUCATI ON AND LEGAL DEFENSE FUND; DAVI D
BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERI CA; THE
FAMI LY FOUNDATI ON OF VI RGI NI A,

Ami ci Suppor t i ng Appel l ant ,

CONSTI TUTI ONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE
BOLLI NGER; ERWI N CHEMERI NSKY; WALTER DELLI NGER; MI CHAEL C.
DORF; LEE EPSTEI N; DANI EL FARBER; BARRY FRI EDMAN; MI CHAEL
J AY GERHARDT, Pr of essor ; DEBORAH HELLMAN; J OHN CALVI N
J EFFRI ES, J R. ; LAWRENCE LESSI G; WI LLI AM MARSHALL; FRANK
MI CHELMAN; J ANE S. SCHACTER; CHRI STOPHER H. SCHROEDER;
SUZANNA SHERRY; GEOFFREY R. STONE; DAVI D STRAUSS; LAURENCE
H. TRI BE, Pr of essor ; WI LLI AM VAN ALSTYNE; OUTSERVE−SLDN; THE
AMERI CAN MI LI TARY PARTNER ASSOCI ATI ON; THE AMERI CAN
SOCI OLOGI CAL ASSOCI ATI ON; VI RGI NI A CONSTI TUTI ONAL LAW
PROFESSORS; AMERI CAN PSYCHOLOGI CAL ASSOCI ATI ON; THE AMERI CAN
ACADEMY OF PEDI ATRI CS; AMERI CAN PSYCHI ATRI C ASSOCI ATI ON;
NATI ONAL ASSOCI ATI ON OF SOCI AL WORKERS; VI RGI NI A
PSYCHOLOGI CAL ASSOCI ATI ON; EQUALI TY NC; SOUTH CAROLI NA
QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCI E
FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN;
MEGAN PARKER; TERRI BECK; LESLI E ZANAGLI O; LEE KNI GHT
CAFFERY; DANA DRAA; SHAWN LONG; CRAI G J OHNSON; ESMERALDA
MEJIA; CHRISTINA GINTER−MEJIA; CATO INSTITUTE;
CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER; HI STORI ANS OF
MARRI AGE; PETER W. BARDAGLI O; NORMA BASCH; STEPHANI E COONTZ;
NANCY F. COTT; TOBY L. DI TZ; ARI ELA R. DUBLER; LAURA F.
EDWARDS; SARAH BARRI NGER GORDON; MI CHAEL GROSSBERG; HENDRI K
HARTOG; ELLEN HERMAN; MARTHA HODES; LI NDA K. KERBER; ALI CE
KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN
MI NTZ; ELI ZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY
DRU STANLEY; BARBARA WELKE; PARENTS, FAMI LI ES AND FRI ENDS OF
LESBI ANS AND GAYS, I NC. ; KERRY ABRAMS, Al ber t Cl ar k Tat e,
J r . Pr of essor of Law, Uni ver si t y of Vi r gi ni a School of Law;
VI VI AN HAMI LTON, Pr of essor of Law, Wi l l i am and Mar y;
MEREDI TH HARBACH, Pr of essor of Law, Uni ver si t y of Ri chmond;
J OAN HEI FETZ HOLLI NGER, J ohn and El i zabet h Boal t Lect ur er i n
Resi dence, Uni ver si t y of Cal i f or ni a, Ber kel ey School of Law;
COURTNEY G. J OSLI N, Pr of essor of Law, Uni ver si t y of
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 10 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (85 of 518)
11

Cal i f or ni a, Davi s School of Law; NAACP LEGAL DEFENSE AND
EDUCATI ON FUND, I NC. ; NATI ONAL ASSOCI ATI ON FOR THE
ADVANCEMENT OF COLORED PEOPLE; HOWARD UNI VERSI TY SCHOOL OF
LAW CI VI L RI GHTS CLI NI C; FAMI LY EQUALI TY COUNCI L; COLAGE;
GLMA: HEALTH PROFESSI ONALS ADVANCI NG LGBT EQUALI TY; WI LLI AM
N. ESKRI DGE, J R. ; REBECCA L. BROWN; DANI EL A. FARBER;
MI CHAEL GERHARDT; J ACK KNI GHT; ANDREW KOPPELMAN; MELI SSA
LAMB SAUNDERS; NEI L S. SI EGEL; J ANA B. SI NGER; HI STORI ANS OF
ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS
UNI TED FOR SEPARATI ON OF CHURCH AND STATE; BEND THE ARC: A
J EWI SH PARTNERSHI P FOR J USTI CE; HADASSAH, THE WOMEN' S
ZI ONI ST ORGANI ZATI ON OF AMERI CA; HI NDU AMERI CAN FOUNDATI ON;
THE I NTERFAI TH ALLI ANCE FOUNDATI ON; J APANESE AMERI CAN
CI TI ZENS LEAGUE; J EWI SH SOCI AL POLI CY ACTI ON NETWORK;
KESHET; METROPOLI TAN COMMUNI TY CHURCHES; MORE LI GHT
PRESBYTERI ANS; THE NATI ONAL COUNCI L OF J EWI SH WOMEN;
NEHI RI M; PEOPLE FOR THE AMERI CAN WAY FOUNDATI ON;
PRESBYTERI AN WELCOME; RECONCI LI NGWORKS: LUTHERANS FOR FULL
PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; SI KH AMERI CAN
LEGAL DEFENSE AND EDUCATI ON FUND; SOCI ETY FOR HUMANI STI C
J UDAI SM; T' RUAH: THE RABBI NI C CALL FOR HUMAN RI GHTS; WOMEN' S
LEAGUE FOR CONSERVATI VE J UDAI SM; COLUMBI A LAW SCHOOL
SEXUALI TY AND GENDER LAW CLI NI C; BI SHOPS OF THE EPI SCOPAL
CHURCH I N VI RGI NI A; CENTRAL ATLANTI C CONFERENCE OF THE
UNI TED CHURCH OF CHRI ST; CENTRAL CONFERENCE OF AMERI CAN
RABBI S; MORMONS FOR EQUALI TY; RECONSTRUCTI ONI ST RABBI NI CAL
ASSOCI ATI ON; RECONSTRUCTI ONI ST RABBI NI CAL COLLEGE AND J EWI SH
RECONSTRUCTI ONI ST COMMUNI TI ES; UNI ON FOR REFORM J UDAI SM; THE
UNI TARI AN UNI VERSALI ST ASSOCI ATI ON; AFFI RMATI ON; COVENANT
NETWORK OF PRESBYTERI ANS; METHODI ST FEDERATI ON FOR SOCI AL
ACTI ON; MORE LI GHT PRESBYTERI ANS; PRESBYTERI AN WELCOME;
RECONCI LI NG MI NI STRI ES NETWORK; RECONCI LI NGWORKS: LUTHERANS
FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; WOMEN OF
REFORM J UDAI SM; 28 EMPLOYERS AND ORGANI ZATI ONS REPRESENTI NG
EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF
CALI FORNI A; STATE OF CONNECTI CUT; DI STRI CT OF COLUMBI A;
STATE OF I LLI NOI S; STATE OF I OWA; STATE OF MAI NE; STATE OF
MARYLAND; STATE OF NEWHAMPSHI RE; STATE OF NEWMEXI CO; STATE
OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF
WASHI NGTON; GARY J . GATES; NATI ONAL AND WESTERN STATES
WOMEN' S RI GHTS ORGANI ZATI ONS; VI RGI NI A CHAPTER OF THE
AMERI CAN ACADEMY OF MATRI MONI AL LAWYERS; THE NATI ONAL
WOMEN' S LAW CENTER; EQUAL RI GHTS ADVOCATES; LEGAL MOMENTUM;
NATI ONAL ASSOCI ATI ON OF WOMEN LAWYERS; NATI ONAL PARTNERSHI P
FOR WOMEN & FAMI LI ES; SOUTHWEST WOMEN' S LAW CENTER; WOMEN' S
LAW PROJ ECT; PROFESSORS OF LAW ASSOCI ATED WI TH THE WI LLI AMS
I NSTI TUTE; BAY AREA LAWYERS FOR I NDI VI DUAL FREEDOM;
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 11 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (86 of 518)
12

LEADERSHI P CONFERENCE ON CI VI L AND HUMAN RI GHTS; PUBLI C
I NTEREST ORGANI ZATI ONS; BAR ASSOCI ATI ONS; FAMI LY LAW AND
CONFLI CT OF LAWS PROFESSORS; GAY AND LESBI AN ADVOCATES AND
DEFENDERS; PEOPLE OF FAI TH FOR EQUALI TY I N VI RGI NI A;
CELEBRATI ON CENTER FOR SPI RI TUAL LI VI NG; CLARENDON
PRESBYTERI AN CHURCH; COMMONWEALTH BAPTI ST CHURCH;
CONGREGATI ON OR AMI ; HOPE UNI TED CHURCH OF CHRI ST; LI TTLE
RI VER UCC; METROPOLI TAN COMMUNI TY CHURCH OF NORTHERN
VI RGI NI A; MT. VERNON UNI TARI AN CHURCH; ST. J AMES UCC, ; ST.
J OHN' S UCC; NEW LI FE METROPOLI TAN COMMUNI TY CHURCH;
UNI TARI AN UNI VERSALI ST FELLOWSHI P OF THE PENI NSULA;
UNI TARI AN UNI VERSALI ST CONGREGATI ON OF STERLI NG; UNI TED
CHURCH OF CHRI ST OF FREDERI CKSBURG; UNI TARI AN UNI VERSALI ST
CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARI E HULM ADAM; REV.
MARTY ANDERSON; REV ROBI N ANDERSON; REV. VERNE ARENS; RABBI
LI A BASS; REV. J OSEPH G. BEATTI E; REV. SUE BROWNI NG; REV.
J I M BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR.
J OHN COPERHAVER; RABBI GARY CREDI TOR; REV. DAVI D ENSI GN;
REV. HENRY FAI RMAN; RABBI J ESSE GALLOP; REV. TOM
GERSTENLAUER; REV. ROBI N H. GORSLI NE; REV. TRI SH HALL; REV.
WARREN HAMMONDS; REV. J ON HEASLET; REV. DOUGLAS HODGES; REV.
PHYLLI S HUBBELL; REV. STEPHEN G. HYDE; REV. J ANET J AMES;
REV. J OHN MANWELL; REV. J AMES W. MCNEAL; REV. MARC BOSWELL;
REV. ANDREW CLI VE MI LLARD; REV. DR. MELANI E MI LLER; REV.
AMBER NEUROTH; REV. J AMES PAPI LE; REV. LI NDA OLSON PEEBLES;
REV. DON PRANGE; RABBI MI CHAEL RAGOZI N; RABBI BEN ROMER;
REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY
SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURI ANO; REV. ROB
VAUGHN; REV. DANI EL VELEZ−RIVERA; REV. KATE R. WALKER; REV.
TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Ami ci Suppor t i ng Appel l ees.



Appeal s f r om t he Uni t ed St at es Di st r i ct Cour t f or t he East er n
Di st r i ct of Vi r gi ni a, at Nor f ol k. Ar enda L. Wr i ght Al l en,
Di st r i ct J udge. ( 2: 13- cv- 00395- AWA- LRL)


Ar gued: May 13, 2014 Deci ded: J ul y 28, 2014


Bef or e NI EMEYER, GREGORY, and FLOYD, Ci r cui t J udges.


Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 12 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (87 of 518)
13

Af f i r med by publ i shed opi ni on. J udge Fl oyd wr ot e t he maj or i t y
opi ni on, i n whi ch J udge Gr egor y j oi ned. J udge Ni emeyer wr ot e a
separ at e di ssent i ng opi ni on.



ARGUED: Davi d Br andt Oakl ey, POOLE MAHONEY PC, Chesapeake,
Vi r gi ni a; Davi d Aust i n Rober t Ni mocks, ALLI ANCE DEFENDI NG
FREEDOM, Washi ngt on, D. C. , f or Appel l ant s Geor ge E. Schaef er ,
I I I and Mi chèl e McQui gg. St uar t Al an Raphael , OFFI CE OF THE
ATTORNEY GENERAL OF VI RGI NI A, Ri chmond, Vi r gi ni a, f or Appel l ant
J anet M. Rai ney. Theodor e B. Ol son, GI BSON, DUNN & CRUTCHER,
LLP, Washi ngt on, D. C. , f or Appel l ees. J ames D. Esseks, AMERI CAN
CI VI L LI BERTI ES UNI ON, New Yor k, New Yor k, f or I nt er venor s. ON
BRIEF: J ef f r ey F. Br ooke, POOLE MAHONEY PC, Chesapeake,
Vi r gi ni a, f or Appel l ant Geor ge E. Schaef er , I I I . Byr on J .
Babi one, Kennet h J . Connel l y, J . Cal eb Dal t on, ALLI ANCE
DEFENDI NG FREEDOM, Scot t sdal e, Ar i zona, f or Appel l ant Mi chèl e B.
McQui gg. Mar k R. Her r i ng, At t or ney Gener al , Cynt hi a E. Hudson,
Chi ef Deput y At t or ney Gener al , Rhodes B. Ri t enour , Deput y
At t or ney Gener al , Al l yson K. Tysi nger , Seni or Assi st ant At t or ney
Gener al , Cat her i ne Cr ooks Hi l l , Seni or Assi st ant At t or ney
Gener al , Tr evor S. Cox, Deput y Sol i ci t or Gener al , OFFI CE OF THE
ATTORNEY GENERAL OF VI RGI NI A, Ri chmond, Vi r gi ni a, f or Appel l ant
J anet M. Rai ney. Davi d Boi es, Ar monk, New Yor k, Wi l l i am A.
I saacson, Washi ngt on, D. C. , J er emy M. Gol dman, Oakl and,
Cal i f or ni a, Rober t Si l ver , J oshua I . Schi l l er , BOI ES, SCHI LLER &
FLEXNER LLP, New Yor k, New Yor k; Theodor e J . Bout r ous, J r . ,
J oshua S. Li pshut z, GI BSON, DUNN & CRUTCHER LLP, Los Angel es,
Cal i f or ni a; Thomas B. Shut t l ewor t h, Rober t E. Rul of f , Char l es B.
Lust i g, Andr ew M. Hendr i ck, Er i k C. Por car o, SHUTTLEWORTH,
RULOFF, SWAI N, HADDAD & MORECOCK, P. C. , Vi r gi ni a Beach,
Vi r gi ni a, f or Appel l ees. Rebecca K. Gl enber g, AMERI CAN CI VI L
LI BERTI ES UNI ON OF VI RGI NI A FOUNDATI ON, I NC. , Ri chmond,
Vi r gi ni a; J oshua A. Bl ock, AMERI CAN CI VI L LI BERTI ES UNI ON
FOUNDATI ON, New Yor k, New Yor k; Gr egor y R. Nevi ns, Tar a L.
Bor el l i , LAMBDA LEGAL DEFENSE AND EDUCATI ON FUND, I NC. , At l ant a,
Geor gi a; Paul M. Smi t h, Luke C. Pl at zer , Mar k P. Gaber , J ENNER &
BLOCK LLP, Washi ngt on, D. C. , f or I nt er venor s. Davi d A.
Robi nson, Nor t h Haven, Connect i cut , as Ami cus. Lynn D. War dl e,
BRI GHAM YOUNG UNI VERSI TY LAW SCHOOL, Pr ovo, Ut ah; Wi l l i am C.
Duncan, MARRI AGE LAW FOUNDATI ON, Lehi , Ut ah, f or Ami ci Al an J .
Hawki ns and J ason S. Car r ol l . Debor ah J . Dewar t , DEBORAH J .
DEWART, ATTORNEY AT LAW, Swansbor o, Nor t h Car ol i na, f or Ami ci
Nor t h Car ol i na Val ues Coal i t i on and Li ber t y, Li f e, and Law
Foundat i on. St eve C. Tayl or , ALLI ANCE LEGAL GROUP, Chesapeake,
Vi r gi ni a, f or Ami cus Soci al Sci ence Pr of essor s. Paul Benj ami n
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 13 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (88 of 518)
14

Li nt on, Nor t hbr ook, I l l i noi s, f or Ami cus Fami l y Resear ch
Counci l . J ohn C. East man, Ant hony T. Caso, Cent er f or
Const i t ut i onal J ur i spr udence, CHAPMAN UNI VERSI TY DALE E. FOWLER
SCHOOL OF LAW, Or ange, Cal i f or ni a, f or Ami ci Vi r gi ni a Cat hol i c
Conf er ence, LLC and Cent er f or Const i t ut i onal J ur i spr udence.
Pat r i ck Mor r i sey, At t or ney Gener al , J ul i e Mar i e Bl ake, Assi st ant
At t or ney Gener al , El ber t Li n, Sol i ci t or Gener al , OFFI CE OF THE
WEST VI RGI NI A ATTORNEY GENERAL, Char l est on, West Vi r gi ni a, f or
Ami cus St at e of West Vi r gi ni a. D. J ohn Sauer , St . Loui s,
Mi ssour i , f or Ami cus I nst i t ut e f or Mar r i age and Publ i c Pol i cy.
Henr y P. Wal l , Col umbi a, Sout h Car ol i na, f or Ami cus Hel en M.
Al var e. Gr egor y F. Zoel l er , At t or ney Gener al , Thomas M. Fi sher ,
Sol i ci t or Gener al , OFFI CE OF THE ATTORNEY GENERAL, I ndi anapol i s,
I ndi ana; Lut her St r ange, At t or ney Gener al , OFFI CE OF THE
ATTORNEY GENERAL OF ALABAMA, Mont gomer y, Al abama; Mi chael C.
Ger aght y, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
ALASKA, J uneau, Al aska; Thomas C. Hor ne, At t or ney Gener al ,
OFFI CE OF THE ATTORNEY GENERAL OF ARI ZONA, Phoeni x, Ar i zona;
J ohn Sut her s, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL
OF COLORADO, Denver , Col or ado; Lawr ence G. Wasden, At t or ney
Gener al , OFFI CE OF THE ATTORNEY GENERAL OF I DAHO, Boi se, I daho;
J ames D. " Buddy" Cal dwel l , At t or ney Gener al , OFFI CE OF THE
ATTORNEY GENERAL OF LOUI SI ANA, Bat on Rouge, Loui si ana; Ti mot hy
C. Fox, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
MONTANA, Hel ena, Mont ana; J on Br uni ng, At t or ney Gener al , OFFI CE
OF THE ATTORNEY GENERAL OF NEBRASKA, Li ncol n, Nebr aska; E. Scot t
Pr ui t t , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
OKLAHOMA, Okl ahoma Ci t y, Okl ahoma; Al an Wi l son, At t or ney
Gener al , OFFI CE OF THE ATTORNEY GENERAL OF SOUTH CAROLI NA,
Col umbi a, Sout h Car ol i na; Mar t y J . J ackl ey, At t or ney Gener al ,
OFFI CE OF THE ATTORNEY GENERAL OF SOUTH DAKOTA, Pi er r e, Sout h
Dakot a; Sean Reyes, At t or ney Gener al , OFFI CE OF THE ATTORNEY
GENERAL OF THE STATE OF UTAH, Sal t Lake Ci t y, Ut ah; Pet er K.
Mi chael , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
WYOMI NG, Cheyenne, Wyomi ng, f or Ami ci St at es of I ndi ana,
Al abama, Al aska, Ar i zona, Col or ado, I daho, Loui si ana, Mont ana,
Nebr aska, Okl ahoma, Sout h Car ol i na, Sout h Dakot a, Ut ah, and
Wyomi ng. St ephen M. Cr ampt on, Mar y E. McAl i st er , LI BERTY
COUNSEL, Lynchbur g, Vi r gi ni a, f or Ami cus Wal l Bui l der s, LLC.
Mat hew D. St aver , Ani t a L. St aver , LI BERTY COUNSEL, Or l ando,
Fl or i da, f or Ami ci Li ber t y Counsel and Amer i can Col l ege of
Pedi at r i ci ans. Fr ank D. Myl ar , MYLAR LAW, P. C. , Sal t Lake Ci t y,
Ut ah, f or Ami ci Schol ar s of Hi st or y and Rel at ed Di sci pl i nes and
Amer i can Leader shi p Fund. Mi chael F. Smi t h, THE SMI TH APPELLATE
LAW FI RM, Washi ngt on, D. C. , f or Ami ci Rober t P. Geor ge, Sher i f
Gi r gi s, and Ryan T. Ander son. Ger ar d V. Br adl ey, NOTRE DAME LAW
SCHOOL, Not r e Dame, I ndi ana; Kevi n T. Sni der , PACI FI C J USTI CE
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 14 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (89 of 518)
15

I NSTI TUTE, Oakl and, Cal i f or ni a, f or Ami cus Paul McHugh. Ant hony
R. Pi car el l o, J r . , U. S. CONFERENCE OF CATHOLI C BI SHOPS,
Washi ngt on, D. C. ; R. Shawn Gunnar son, KI RTON MCCONKI E, Sal t Lake
Ci t y, Ut ah, f or Ami ci Uni t ed St at es Conf er ence of Cat hol i c
Bi shops, Nat i onal Associ at i on of Evangel i cal s, Chur ch of J esus
Chr i st of Lat t er - Day Sai nt s, The Et hi cs & Rel i gi ous Li ber t y
Commi ssi on of t he Sout her n Bapt i st Convent i on, and Lut her an
Chur ch- Mi ssour i Synod. Er i c Rassbach, Asma Uddi n, THE BECKET
FUND FOR RELI GI OUS LI BERTY, Washi ngt on, D. C. , f or Ami cus The
Becket Fund f or Rel i gi ous Li ber t y. Lawr ence J . J oseph,
Washi ngt on, D. C. f or Ami cus Eagl e For um Educat i on and Legal
Def ense Fund. Davi d Boyl e, Long Beach, Cal i f or ni a, as Ami cus.
Davi d Boyl e, Long Beach, Cal i f or ni a, f or Ami cus Rober t Oscar
Lopez. Abbe Davi d Lowel l , Chr i st opher D. Man, CHADBOURNE &
PARKE LLP, Washi ngt on, D. C. , f or Ami ci Out ser ve- SLDN and The
Amer i can Mi l i t ar y Par t ner Associ at i on. Geof f r ey R. St one, THE
UNI VERSI TY OF CHI CAGO LAWSCHOOL, Chi cago, I l l i noi s; Lor i Al vi no
McGi l l , LATHAM & WATKI NS LLP, Washi ngt on, D. C. , f or Ami ci
Const i t ut i onal Law Schol ar s Ashut osh Bhagwat , Lee Bol l i nger ,
Er wi n Chemer i nsky, Wal t er Del l i nger , Mi chael C. Dor f , Lee
Epst ei n, Dani el Far ber , Bar r y Fr i edman, Mi chael J . Ger har dt ,
Debor ah Hel l man, J ohn C. J ef f r i es, J r . , Lawr ence Lessi g, Wi l l i am
Mar shal l , Fr ank Mi chel man, J ane S. Schact er , Chr i st opher H.
Schr oeder , Suzanna Sher r y, Geof f r ey R. St one, Davi d St r auss,
Laur ence H. Tr i be, and Wi l l i amVan Al st yne. St even W. Fi t schen,
THE NATI ONAL LEGAL FOUNDATI ON, Vi r gi ni a Beach, Vi r gi ni a; Hol l y
L. Car mi chael , San J ose, Cal i f or ni a, f or Ami cus Concer ned Women
f or Amer i ca. Car mi ne D. Boccuzzi , J r . , Mar k A. Li ght ner , Andr a
Tr oy, Andr ew P. Mei ser , CLEARY GOTTLI EB STEEN & HAMI LTON LLP,
New Yor k, New Yor k, f or Ami cus The Amer i can Soci ol ogi cal
Associ at i on. L. St even Emmer t , SYKES, BOURDON, AHERN & LEVY,
P. C. , Vi r gi ni a Beach, Vi r gi ni a, f or Ami cus Vi r gi ni a
Const i t ut i onal Law Pr of essor s. Nat hal i e F. P. Gi l f oyl e, AMERI CAN
PSYCHOLOGI CAL ASSOCI ATI ON, Washi ngt on, D. C. ; Br uce V. Spi va, THE
SPI VA LAW FI RM PLLC, Washi ngt on, D. C. , f or Ami ci Amer i can
Psychol ogi cal Associ at i on, Amer i can Academy of Pedi at r i cs,
Amer i can Psychi at r i c Associ at i on, Nat i onal Associ at i on of Soci al
Wor ker s, and Vi r gi ni a Psychol ogi cal Associ at i on. Mar k
Kl ei nschmi dt , TI N FULTON WALKER & OWEN, Chapel Hi l l , Nor t h
Car ol i na; Ryan T. But l er , Gr eensbor o, Nor t h Car ol i na, f or Ami ci
Equal i t y NC and Sout h Car ol i na Equal i t y Coal i t i on. Rose A.
Saxe, J ames D. Esseks, AMERI CAN CI VI L LI BERTI ES UNI ON
FOUNDATI ON, New Yor k, New Yor k; Gar r ar d R. Beeney, Davi d A.
Cast l eman, Cat her i ne M. Br adl ey, W. Rudol ph Kl eyst euber ,
SULLI VAN & CROMWELL LLP, New Yor k, New Yor k, f or Ami ci Mar ci e
and Chant el l e Fi sher - Bor ne, Cr yst al Hendr i x and Lei gh Smi t h,
Shana Car i gnan and Megan Par ker , Ter r i Beck and Lesl i e Zanagl i o,
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 15 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (90 of 518)
16

Lee Kni ght Caf f er y and Dana Dr aa, Shawn Long and Cr ai g J ohnson,
and Esmer al da Mej i a and Chr i st i na Gi nt er - Mej i a. El i zabet h B.
Wydr a, Dougl as T. Kendal l , J udi t h E. Schaef f er , Davi d H. Gans,
CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER, Washi ngt on, D. C. ; I l ya
Shapi r o, CATO I NSTI TUTE, Washi ngt on, D. C. , f or Ami ci Cat o
I nst i t ut e and Const i t ut i onal Account abi l i t y Cent er . Dani el
McNeel Lane, J r . , Mat t hew E. Peppi ng, San Ant oni o, Texas,
J essi ca M. Wei sel , AKI N GUMP STRAUSS HAUER & FELD LLP, Los
Angel es, Cal i f or ni a, f or Ami ci Hi st or i ans of Mar r i age Pet er W.
Bar dagl i o, Nor ma Basch, St ephani e Coont z, Nancy F. Cot t , Toby L.
Di t z, Ar i el a R. Dubl er , Laur a F. Edwar ds, Sar ah Bar r i nger
Gor don, Mi chael Gr ossber g, Hendr i k Har t og, El l en Her man, Mar t ha
Hodes, Li nda K. Ker ber , Al i ce Kessl er - Har r i s, El ai ne Tyl er May,
Ser ena Mayer i , St eve Mi nt z, El i zabet h Pl eck, Car ol e Shammas,
Mar y L. Shanl ey, Amy Dr u St anl ey, and Bar bar a Wel ke. J i yun
Camer on Lee, Andr ew J . Davi s, FOLGER LEVI N LLP, San Fr anci sco,
Cal i f or ni a, f or Ami cus Par ent s, Fami l i es and Fr i ends of Lesbi ans
and Gays, I nc. Ri t a F. Li n, Laur a W. Wei ssbei n, Sar a Bar t el ,
MORRI SON & FOERSTER LLP, San Fr anci sco, Cal i f or ni a, f or Ami ci
Ker r y Abr ams, Al ber t Cl ar k Tat e, J r . Pr of essor of Law Uni ver si t y
of Vi r gi ni a School of Law, Vi vi an Hami l t on, Pr of essor of Law
Wi l l i am and Mar y, Mer edi t h Har bach, Pr of essor of Law Uni ver si t y
of Ri chmond, J oan Hei f et z Hol l i nger , J ohn and El i zabet h Boal t
Lect ur er i n Resi dence Uni ver si t y of Cal i f or ni a, Ber kel ey School
of Law, Cour t ney G. J osl i n, Pr of essor of Law Uni ver si t y of
Cal i f or ni a, Davi s School of Law, and For t y- Four Ot her Fami l y Law
Pr of essor s. Sher r i l yn I f i l l , Chr i st i na A. Swar ns, Ri a Tabacco
Mar , NAACP LEGAL DEFENSE & EDUCATI ONAL FUND, I NC. , New Yor k, New
Yor k; Ki m M. Keenan, NAACP, Bal t i mor e, Mar yl and, f or Ami ci NAACP
Legal Def ense & Educat i onal Fund, I nc. and Nat i onal Associ at i on
f or t he Advancement of Col or ed Peopl e. Ader son Bel l egar de
Fr ancoi s, HOWARD UNI VERSI TY SCHOOL OF LAW CI VI L RI GHTS CLI NI C,
Washi ngt on, D. C. ; Br ad W. Sei l i ng, Benj ami n G. Shat z, MANATT,
PHELPS & PHI LLI PS, LLP, Los Angel es, Cal i f or ni a, f or Ami cus
Howar d Uni ver si t y School of Law Ci vi l Ri ght s Cl i ni c. Al ec W.
Far r , Washi ngt on, D. C. , Tr acy M. Tal bot , Kat her i ne Keat i ng,
BRYAN CAVE LLP, San Fr anci sco, Cal i f or ni a, f or Ami ci Fami l y
Equal i t y Counci l and COLAGE. Ni chol as M. O' Donnel l , SULLI VAN &
WORCESTER LLP, Bost on, Massachuset t s, f or Ami cus GLMA: Heal t h
Pr of essi onal s Advanci ng LGBT Equal i t y. Kat hl een M. O' Sul l i van,
Mi ca D. Si mpson, PERKI NS COI E LLP, Seat t l e, Washi ngt on, f or
Ami ci Wi l l i am N. Eskr i dge, J r . , Rebecca L. Br own, Dani el A.
Far ber , Mi chael Ger har dt , J ack Kni ght , Andr ew Koppel man, Mel i ssa
Lamb Saunder s, Nei l S. Si egel , and J ana B. Si nger . Cat her i ne E.
St et son, Er i ca Kni evel Songer , Mar y Hel en Wi mber l y, Kat i e D.
Fai r chi l d, Madel i ne H. Gi t omer , HOGAN LOVELLS US LLP,
Washi ngt on, D. C. , f or Ami cus Hi st or i ans of Ant i gay
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 16 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (91 of 518)
17

Di scr i mi nat i on. Rocky C. Tsai , Samuel P. Bi cket t , Rebecca
Har l ow, ROPES & GRAY LLP, San Fr anci sco, Cal i f or ni a; St even M.
Fr eeman, Set h M. Mar ni n, Mel i ssa Gar l i ck, ANTI - DEFAMATI ON
LEAGUE, New Yor k, New Yor k, f or Ami ci Ant i - Def amat i on League,
Amer i cans Uni t ed f or Separ at i on of Chur ch and St at e, Bend t he
Ar c: A J ewi sh Par t ner shi p f or J ust i ce, Hadassah, The Women' s
Zi oni st Or gani zat i on of Amer i ca, Hi ndu Amer i can Foundat i on, The
I nt er f ai t h Al l i ance Foundat i on, J apanese Amer i can Ci t i zens
League, J ewi sh Soci al Pol i cy Act i on Net wor k, Keshet ,
Met r opol i t an Communi t y Chur ches, Mor e Li ght Pr esbyt er i ans, The
Nat i onal Counci l of J ewi sh Women, Nehi r i m, Peopl e For t he
Amer i can Way Foundat i on, Pr esbyt er i an Wel come, Reconci l i ngwor ks:
Lut her ans f or Ful l Par t i ci pat i on, Rel i gi ous I nst i t ut e, I nc. ,
Si kh Amer i can Legal Def ense and Educat i on Fund, Soci et y f or
Humani st i c J udai sm, T' Ruah: The Rabbi ni c Cal l f or Human Ri ght s,
and Women' s League For Conser vat i ve J udai sm. Mat t hew P.
McGui r e, Bever l ee E. Si l va, Di ane S. Wi zi g, ALSTON & BI RD LLP,
Dur ham, Nor t h Car ol i na; Suzanne B. Gol dber g, Sexual i t y and
Gender Law Cl i ni c, COLUMBI A LAW SCHOOL, New Yor k, New Yor k, f or
Ami cus Col umbi a Law School Sexual i t y and Gender Law Cl i ni c.
J ef f r ey S. Tr acht man, Nor man C. Si mon, J ason M. Mof f , Kur t M.
Denk, J essi ca N. Wi t t e, KRAMER LEVI N NAFTALI S & FRANKEL LLP, New
Yor k, New Yor k, f or Ami ci Bi shops of t he Epi scopal Chur ch i n
Vi r gi ni a, The Cent r al At l ant i c Conf er ence of t he Uni t ed Chur ch
of Chr i st , Cent r al Conf er ence of Amer i can Rabbi s, Mor mons f or
Equal i t y, Reconst r uct i oni st Rabbi ni cal Associ at i on,
Reconst r uct i oni st Rabbi ni cal Col l ege and J ewi sh
Reconst r uct i oni st Communi t i es, Uni on f or Ref or m J udai sm, The
Uni t ar i an Uni ver sal i st Associ at i on, Af f i r mat i on, Covenant
Net wor k of Pr esbyt er i ans, Met hodi st Feder at i on f or Soci al
Act i on, Mor e Li ght Pr esbyt er i ans, Pr esbyt er i an Wel come,
Reconci l i ng Mi ni st r i es Net wor k, Reconsi l i ngwor ks: Lut her ans For
Ful l Par t i ci pat i on, Rel i gi ous I nst i t ut e, I nc. , and Women of
Ref or m J udai sm. Susan Baker Manni ng, Mi chael L. Whi t l ock,
Mar gar et E. Sheer , J ar ed A. Cr af t , Sar a M. Car i an, J essi ca C.
Br ooks, Kat her i ne R. Moskop, J ohn A. Pol i t o, St ephani e Schust er ,
BI NGHAM MCCUTCHEN LLP, Washi ngt on, D. C. , f or Ami cus 28 Empl oyer s
and Or gani zat i ons Repr esent i ng Empl oyer s. Mar t ha Coakl ey,
At t or ney Gener al , J onat han B. Mi l l er , Assi st ant At t or ney
Gener al , Genevi eve C. Nadeau, Assi st ant At t or ney Gener al ,
Mi chel l e L. Leung, Assi st ant At t or ney Gener al , Fr eder i ck D.
Augenst er n, Assi st ant At t or ney Gener al , OFFI CE OF THE ATTORNEY
GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Bost on,
Massachuset t s; Kamal a D. Har r i s, At t or ney Gener al , OFFI CE OF THE
ATTORNEY GENERAL OF CALI FORNI A, Sacr ament o, Cal i f or ni a; Geor ge
J epsen, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
CONNECTI CUT, Har t f or d, Connect i cut ; I r vi n B. Nat han, At t or ney
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 17 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (92 of 518)
18

Gener al , OFFI CE OF THE ATTORNEY GENERAL FOR THE DI STRI CT OF
COLUMBI A, Washi ngt on, D. C. ; Li sa Madi gan, At t or ney Gener al ,
OFFI CE OF THE ATTORNEY GENERAL OF I LLI NOI S, Chi cago, I l l i noi s;
Tom Mi l l er , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
I OWA, Des Moi nes, I owa; J anet T. Mi l l s, At t or ney Gener al , OFFI CE
OF THE ATTORNEY GENERAL OF MAI NE, August a, Mai ne; Dougl as F.
Gansl er , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
MARYLAND, Bal t i mor e, Mar yl and; J oseph A. Fost er , At t or ney
Gener al , OFFI CE OF THE ATTORNEY GENERAL OF NEW HAMPSHI RE,
Concor d, New Hampshi r e; Gar y K. Ki ng, At t or ney Gener al , OFFI CE
OF THE ATTORNEY GENERAL OF NEW MEXI CO, Sant a Fe, New Mexi co;
Er i c T. Schnei der man, At t or ney Gener al , OFFI CE OF THE ATTORNEY
GENERAL OF NEW YORK, New Yor k, New Yor k; El l en F. Rosenbl um,
At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF OREGON,
Sal em, Or egon; Wi l l i am H. Sor r el l , At t or ney Gener al , OFFI CE OF
THE ATTORNEY GENERAL OF VERMONT, Mont pel i er , Ver mont ; Rober t W.
Fer guson, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF
WASHI NGTON, Ol ympi a, Washi ngt on, f or Ami ci Massachuset t s,
Cal i f or ni a, Connect i cut , Di st r i ct of Col umbi a, I l l i noi s, I owa,
Mai ne, Mar yl and, New Hampshi r e, New Mexi co, New Yor k, Or egon,
Ver mont , and Washi ngt on. Br ad W. Sei l i ng, Benj ami n G. Shat z,
MANATT, PHELPS & PHI LLI PS, LLP, Los Angel es, Cal i f or ni a, f or
Ami cus Gar y J . Gat es. Br uce A. Wessel , Moez M. Kaba, C.
Mi t chel l Hendy, Br i an Eggl est on, I RELL & MANELLA LLP, Los
Angel es, Cal i f or ni a, f or Ami cus Nat i onal and West er n St at es
Women' s Ri ght s Or gani zat i ons. Donal d K. But l er , BATZLI STI LES
BUTLER, P. C. , Ri chmond, Vi r gi ni a; Susan M. But l er , SHOUNBACH,
P. C. , Fai r f ax, Vi r gi ni a; Dani el L. Gr ay, St ephani e J . Smi t h,
Kr i st en L. Kugel , Anne B. Robi nson, COOPER GI NSBERG GRAY, PLLC,
Fai r f ax, Vi r gi ni a, f or Ami cus Vi r gi ni a Chapt er of The Amer i can
Academy of Mat r i moni al Lawyer s. Mar ci a D. Gr eenber ger , Emi l y J .
Mar t i n, Cor t el you C. Kenney, NATI ONAL WOMEN' S LAW CENTER,
Washi ngt on, D. C. , f or Ami ci The Nat i onal Women' s Law Cent er ,
Equal Ri ght s Advocat es, Legal Moment um, Nat i onal Associ at i on of
Women Lawyer s, Nat i onal Par t ner shi p f or Women & Fami l i es,
Sout hwest Women' s Law Cent er , Women' s Law Pr oj ect , and
Pr of essor s of Law Associ at ed wi t h The Wi l l i ams I nst i t ut e.
J er ome C. Rot h, Ni col e S. Phi l l i s, MUNGER, TOLLES & OLSON LLP,
San Fr anci sco, Cal i f or ni a, f or Ami cus Bay Ar ea Lawyer s f or
I ndi vi dual Fr eedom. Shannon P. Mi nt er , Chr i st opher F. St ol l ,
J ai me Hul i ng Del aye, NATI ONAL CENTER FOR LESBI AN RI GHTS,
Washi ngt on, D. C. , f or Ami ci Leader shi p Conf er ence on Ci vi l and
Human Ri ght s, Publ i c I nt er est Or gani zat i ons, and Bar
Associ at i ons. J oanna L. Gr ossman, HOFSTRA LAW SCHOOL,
Hempst ead, New Yor k; Mar j or y A. Gent r y, ARNOLD & PORTER LLP, San
Fr anci sco, Cal i f or ni a, f or Ami cus Fami l y Law and Conf l i ct of
Laws Pr of essor s. Mar k C. Fl emi ng, Fel i ci a H. El l swor t h, Bost on,
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 18 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (93 of 518)
19

Massachuset t s, Paul R. Q. Wol f son, Di na B. Mi shr a, Leah M.
Li t man, Washi ngt on, D. C. , Al an Schoenf el d, WI LMER CUTLER
PI CKERI NG HALE AND DORR LLP, New Yor k, New Yor k, f or Ami cus Gay
& Lesbi an Advocat es & Def ender s. J ohn Humphr ey, THE HUMPHREY
LAW FI RM, Al exandr i a, Vi r gi ni a, f or Ami ci Peopl e of Fai t h For
Equal i t y i n Vi r gi ni a ( POFEV) , Cel ebr at i on Cent er f or Spi r i t ual
Li vi ng, Cl ar endon Pr esbyt er i an Chur ch, Commonweal t h Bapt i st
Chur ch, Congr egat i on or AMI , Hope Uni t ed Chur ch of Chr i st ,
Li t t l e Ri ver UCC, Met r opol i t an Communi t y Chur ch of Nor t her n
Vi r gi ni a, Mt . Ver non Uni t ar i an Chur ch, St . J ames UCC, St . J ohn' s
UCC, New Li f e Met r opol i t an Communi t y Chur ch, Uni t ar i an
Uni ver sal i st Fel l owshi p of t he Peni nsul a, Uni t ar i an Uni ver sal i st
Congr egat i on of St er l i ng, Uni t ed Chur ch of Chr i st of
Fr eder i cksbur g, Uni t ar i an Uni ver sal i st Chur ch of Loudoun, Rev.
Mar i e Hul m Adam, Rev. Mar t y Ander son, Rev. Robi n Ander son, Rev.
Ver ne Ar ens, Rabbi Li a Bass, Rev. J oseph G. Beat t i e, Rev. Mar c
Boswel l , Rev. Sue Br owni ng, Rev. J i mBundy, Rev. Mar k Byr d, Rev.
St even C. Cl unn, Rev. Dr . J ohn Coper haver , Rabbi Gar y Cr edi t or ,
Rev. Davi d Ensi gn, Rev. Henr y Fai r man, Rabbi J esse Gal l op, Rev.
Tom Ger st enl auer , Rev. Dr . Robi n H. Gor sl i ne, Rev. Tr i sh Hal l ,
Rev. War r en Hammonds, Rev. J on Heasl et , Rev. Dougl as Hodges,
Rev. Phyl l i s Hubbel l , Rev. St ephen G. Hyde, Rev. J anet J ames,
Rev. J ohn Manwel l , Rev. J ames W. McNeal , Andr ew Mer t z, Rev.
Andr ew Cl i ve Mi l l ar d, Rev. Dr . Mel ani e Mi l l er , Rev. Amber
Neur ot h, Rev. J ames Papi l e, Rev. Li nda Ol son Peebl es, Rev. Don
Pr ange, Rabbi Mi chael Ragozi n, Rabbi Ben Romer , Rev. J enni f er
Ryu, Rev. Anya Samml er - Mi chael , Rabbi Amy Schwar t zman, Rev.
Danny Spear s, Rev. Mar k Sur i ano, Rev. Rob Vaughn, Rev. Dani el
Vel ez- Ri ver a, Rev. Kat e R. Wal ker , Rev. Ter r ye Wi l l i ams, and
Rev. Dr . Kar en- Mar i e Yust .







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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (94 of 518)
20

FLOYD, Ci r cui t J udge:
Vi a var i ous st at e st at ut es and a st at e const i t ut i onal
amendment , Vi r gi ni a pr event s same- sex coupl es f r om mar r yi ng and
r ef uses t o r ecogni ze same- sex mar r i ages per f or med el sewher e.
Two same- sex coupl es f i l ed sui t t o chal l enge t he
const i t ut i onal i t y of t hese l aws, al l egi ng t hat t hey vi ol at e t he
Due Pr ocess and Equal Pr ot ect i on Cl auses of t he Four t eent h
Amendment . The di st r i ct cour t gr ant ed t he coupl es’ mot i on f or
summar y j udgment and enj oi ned Vi r gi ni a f r om enf or ci ng t he l aws.
Thi s appeal f ol l owed. Because we concl ude t hat Vi r gi ni a’ s same-
sex mar r i age bans i mper mi ssi bl y i nf r i nge on i t s ci t i zens’
f undament al r i ght t o mar r y, we af f i r m.

I .
A.
Thi s case concer ns a ser i es of st at ut or y and const i t ut i onal
mechani sms t hat Vi r gi ni a empl oyed t o pr ohi bi t l egal r ecogni t i on
f or same- sex r el at i onshi ps i n t hat st at e.
1
Vi r gi ni a enact ed t he

1
Thr ee ot her st at es i n t hi s Ci r cui t have si mi l ar bans:
Nor t h Car ol i na, N. C. Const . ar t . XI V, § 6; N. C. Gen. St at .
§§ 51- 1, 51- 1. 2; Sout h Car ol i na, S. C. Const . ar t . XVI I , § 15;
S. C. Code Ann. §§ 20- 1- 10, 20- 1- 15; and West Vi r gi ni a, W. Va.
Code § 48- 2- 603. The Sout her n Di st r i ct of West Vi r gi ni a has
st ayed a chal l enge t o West Vi r gi ni a’ s st at ut e pendi ng our
r esol ut i on of t hi s appeal . McGee v. Col e, No. 3: 13- cv- 24068
( S. D. W. Va. J une 10, 2014) ( or der di r ect i ng st ay) .
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (95 of 518)
21

f i r st of t hese l aws i n 1975: Vi r gi ni a Code sect i on 20- 45. 2,
whi ch pr ovi des t hat “mar r i age bet ween per sons of t he same sex i s
pr ohi bi t ed. ” Af t er t he Supr eme Cour t of Hawai i t ook st eps t o
l egal i ze same- sex mar r i age i n t he mi d- 1990s, Vi r gi ni a amended
sect i on 20- 45. 2 t o speci f y t hat “[ a] ny mar r i age ent er ed i nt o by
per sons of t he same sex i n anot her st at e or j ur i sdi ct i on shal l
be voi d i n al l r espect s i n Vi r gi ni a and any cont r act ual r i ght s
cr eat ed by such mar r i age shal l be voi d and unenf or ceabl e. ” I n
2004, Vi r gi ni a added ci vi l uni ons and si mi l ar ar r angement s t o
t he l i st of pr ohi bi t ed same- sex r el at i onshi ps vi a t he
Af f i r mat i on of Mar r i age Act . See Va. Code Ann. § 20- 45. 3.
Vi r gi ni a’ s ef f or t s t o ban same- sex mar r i age and ot her
l egal l y r ecogni zed same- sex r el at i onshi ps cul mi nat ed i n t he
Mar shal l / Newman Amendment t o t he Vi r gi ni a Const i t ut i on:
That onl y a uni on bet ween one man and one woman may be
a mar r i age val i d i n or r ecogni zed by t hi s Commonweal t h
and i t s pol i t i cal subdi vi si ons.

Thi s Commonweal t h and i t s pol i t i cal subdi vi si ons shal l
not cr eat e or r ecogni ze a l egal st at us f or
r el at i onshi ps of unmar r i ed i ndi vi dual s t hat i nt ends t o
appr oxi mat e t he desi gn, qual i t i es, si gni f i cance, or
ef f ect s of mar r i age. Nor shal l t hi s Commonweal t h or
i t s pol i t i cal subdi vi si ons cr eat e or r ecogni ze anot her
uni on, par t ner shi p, or ot her l egal st at us t o whi ch i s
assi gned t he r i ght s, benef i t s, obl i gat i ons, qual i t i es,
or ef f ect s of mar r i age.

Va. Const . ar t . I , § 15- A. The Vi r gi ni a Const i t ut i on i mposes
t wo hur dl es t hat a pot ent i al amendment must j ump bef or e becomi ng
l aw: t he Gener al Assembl y must appr ove t he amendment i n t wo
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (96 of 518)
22

separ at e l egi sl at i ve sessi ons, and t he peopl e must r at i f y i t .
Va. Const . ar t . XI I , § 1. The Gener al Assembl y appr oved t he
Mar shal l / Newman Amendment i n 2005 and 2006. I n November 2006,
Vi r gi ni a’ s vot er s r at i f i ed i t by a vot e of f i f t y- seven per cent
t o f or t y- t hr ee per cent . I n t he aggr egat e, Vi r gi ni a Code
sect i ons 20- 45. 2 and 20- 45. 3 and t he Mar shal l / Newman Amendment
pr ohi bi t same- sex mar r i age, ban ot her l egal l y r ecogni zed same-
sex r el at i onshi ps, and r ender same- sex mar r i ages per f or med
el sewher e l egal l y meani ngl ess under Vi r gi ni a st at e l aw.

B.
Same- sex coupl es Ti mot hy B. Bost i c and Tony C. London and
Car ol Schal l and Mar y Townl ey ( col l ect i vel y, t he Pl ai nt i f f s)
br ought t hi s l awsui t t o chal l enge t he const i t ut i onal i t y of
Vi r gi ni a Code sect i ons 20- 45. 2 and 20- 45. 3, t he Mar shal l / Newman
Amendment , and “any ot her Vi r gi ni a l aw t hat bar s same- sex
mar r i age or pr ohi bi t s t he St at e’ s r ecogni t i on of ot her wi se-
l awf ul same- sex mar r i ages f r om ot her j ur i sdi ct i ons”
( col l ect i vel y, t he Vi r gi ni a Mar r i age Laws) . The Pl ai nt i f f s
cl ai m t hat t he “i nabi l i t y t o mar r y or have t hei r r el at i onshi p
r ecogni zed by t he Commonweal t h of Vi r gi ni a wi t h t he di gni t y and
r espect accor ded t o mar r i ed opposi t e- sex coupl es has caused t hem
si gni f i cant har dshi p . . . and sever e humi l i at i on, emot i onal
di st r ess, pai n, suf f er i ng, psychol ogi cal har m, and st i gma. ”
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 22 of 98
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (97 of 518)
23

Bost i c and London have been i n a l ong- t er m, commi t t ed
r el at i onshi p wi t h each ot her si nce 1989 and have l i ved t oget her
f or mor e t han t went y year s. They “desi r e t o mar r y each ot her
under t he l aws of t he Commonweal t h i n or der t o publ i cl y announce
t hei r commi t ment t o one anot her and t o enj oy t he r i ght s,
pr i vi l eges, and pr ot ect i ons t hat t he St at e conf er s on mar r i ed
coupl es. ” On J ul y 1, 2013, Bost i c and London appl i ed f or a
mar r i age l i cense f r om t he Cl er k f or t he Ci r cui t Cour t f or t he
Ci t y of Nor f ol k. The Cl er k deni ed t hei r appl i cat i on because
t hey ar e bot h men.
Schal l and Townl ey ar e women who have been a coupl e si nce
1985 and have l i ved t oget her as a f ami l y f or near l y t hi r t y
year s. They wer e l awf ul l y mar r i ed i n Cal i f or ni a i n 2008. I n
1998, Townl ey gave bi r t h t o t he coupl e’ s daught er , E. S. - T.
Schal l and Townl ey i dent i f y a host of consequences of t hei r
i nabi l i t y t o mar r y i n Vi r gi ni a and Vi r gi ni a’ s r ef usal t o
r ecogni ze t hei r Cal i f or ni a mar r i age, i ncl udi ng t he f ol l owi ng:
• Schal l coul d not vi si t Townl ey i n t he hospi t al f or sever al
hour s when Townl ey was admi t t ed due t o pr egnancy- r el at ed
compl i cat i ons.
• Schal l cannot l egal l y adopt E. S. - T. , whi ch f or ced her t o
r et ai n an at t or ney t o pet i t i on f or f ul l j oi nt l egal and
physi cal cust ody.
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (98 of 518)
24

• Vi r gi ni a wi l l not l i st bot h Schal l and Townl ey as E. S. -
T. ’ s par ent s on her bi r t h cer t i f i cat e.
• Unt i l Febr uar y 2013, Schal l and Townl ey coul d not cover one
anot her on t hei r empl oyer - pr ovi ded heal t h i nsur ance.
Townl ey has been abl e t o cover Schal l on her i nsur ance
si nce t hen, but , unl i ke an opposi t e- sex spouse, Schal l must
pay st at e i ncome t axes on t he benef i t s she r ecei ves.
• Schal l and Townl ey must pay st at e t axes on benef i t s pai d
pur suant t o empl oyee benef i t s pl ans i n t he event of one of
t hei r deat hs.
• Schal l and Townl ey cannot f i l e j oi nt st at e i ncome t ax
r et ur ns, whi ch has cost t hemt housands of dol l ar s.
On J ul y 18, 2013, Bost i c and London sued f or mer Gover nor
Rober t F. McDonnel l , f or mer At t or ney Gener al Kennet h T.
Cucci nel l i , and Geor ge E. Schaef er , I I I , i n hi s of f i ci al
capaci t y as t he Cl er k f or t he Ci r cui t Cour t f or t he Ci t y of
Nor f ol k. The Pl ai nt i f f s f i l ed t hei r Fi r st Amended Compl ai nt on
Sept ember 3, 2013. The Fi r st Amended Compl ai nt added Schal l and
Townl ey as pl ai nt i f f s, r emoved McDonnel l and Cucci nel l i as
def endant s, and added J anet M. Rai ney as a def endant i n her
of f i ci al capaci t y as t he St at e Regi st r ar of Vi t al Recor ds. The
Pl ai nt i f f s al l ege t hat t he Vi r gi ni a Mar r i age Laws ar e f aci al l y
i nval i d under t he Due Pr ocess and Equal Pr ot ect i on Cl auses of
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (99 of 518)
25

t he Four t eent h Amendment and t hat Schaef er and Rai ney vi ol at ed
42 U. S. C. § 1983 by enf or ci ng t hose l aws.
The par t i es f i l ed cr oss- mot i ons f or summar y j udgment . The
Pl ai nt i f f s al so r equest ed a per manent i nj unct i on i n connect i on
wi t h t hei r mot i on f or summar y j udgment and moved, i n t he
al t er nat i ve, f or a pr el i mi nar y i nj unct i on i n t he event t hat t he
di st r i ct cour t deni ed t hei r mot i on f or summar y j udgment . The
di st r i ct cour t gr ant ed a mot i on by Mi chèl e McQui gg—t he Pr i nce
Wi l l i am Count y Cl er k of Cour t —t o i nt er vene as a def endant on
J anuar y 21, 2014. Two days l at er , new At t or ney Gener al Mar k
Her r i ng—as Rai ney’ s counsel —submi t t ed a f or mal change i n
posi t i on and r ef used t o def end t he Vi r gi ni a Mar r i age Laws,
al t hough Vi r gi ni a cont i nues t o enf or ce t hem. McQui gg adopt ed
Rai ney’ s pr i or mot i on f or summar y j udgment and t he br i ef s i n
suppor t of t hat mot i on.
The di st r i ct cour t hel d t hat t he Vi r gi ni a Mar r i age Laws
wer e unconst i t ut i onal on Febr uar y 14, 2014. Bost i c v. Rai ney,
970 F. Supp. 2d 456, 483 ( E. D. Va. 2014) . I t t her ef or e deni ed
Schaef er ’ s and McQui gg’ s mot i ons f or summar y j udgment and
gr ant ed t he Pl ai nt i f f s’ mot i on. The di st r i ct cour t al so
enj oi ned Vi r gi ni a’ s empl oyees—i ncl udi ng Rai ney and her
empl oyees—and Schaef er , McQui gg, and t hei r of f i cer s, agent s, and
empl oyees f r om enf or ci ng t he Vi r gi ni a Mar r i age Laws. I d. at
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (100 of 518)
26

484. The cour t st ayed t he i nj unct i on pendi ng our r esol ut i on of
t hi s appeal . I d.
Rai ney, Schaef er , and McQui gg t i mel y appeal ed t he di st r i ct
cour t ’ s deci si on. We have j ur i sdi ct i on pur suant t o 28 U. S. C.
§ 1291. On Mar ch 10, 2014, we al l owed t he pl ai nt i f f s f r om
Har r i s v. Rai ney—a si mi l ar case pendi ng bef or e J udge Mi chael
Ur banski i n t he West er n Di st r i ct of Vi r gi ni a—t o i nt er vene.
J udge Ur banski had pr evi ousl y cer t i f i ed t hat case as a cl ass
act i on on behal f of “al l same- sex coupl es i n Vi r gi ni a who have
not mar r i ed i n anot her j ur i sdi ct i on” and “al l same- sex coupl es
i n Vi r gi ni a who have mar r i ed i n anot her j ur i sdi ct i on, ” excl udi ng
t he Pl ai nt i f f s. Har r i s v. Rai ney, No. 5: 13- cv- 077, 2014 WL
352188, at *1, 12 ( W. D. Va. J an. 31, 2014) .
Our anal ysi s pr oceeds i n t hr ee st eps. Fi r st , we consi der
whet her t he Pl ai nt i f f s possess st andi ng t o br i ng t hei r cl ai ms.
Second, we eval uat e whet her t he Supr eme Cour t ’ s summar y
di smi ssal of a si mi l ar l awsui t i n Baker v. Nel son, 409 U. S. 810
( 1972) ( mem. ) , r emai ns bi ndi ng. Thi r d, we det er mi ne whi ch l evel
of const i t ut i onal scr ut i ny appl i es her e and t est t he Vi r gi ni a
Mar r i age Laws usi ng t he appr opr i at e st andar d. For pur poses of
t hi s opi ni on, we adopt t he t er mi nol ogy t he di st r i ct cour t used
t o descr i be t he par t i es i n t hi s case. The Pl ai nt i f f s, Rai ney,
and t he Har r i s cl ass ar e t he “Opponent s” of t he Vi r gi ni a
Mar r i age Laws. Schaef er and McQui gg ar e t he “Pr oponent s. ”
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (101 of 518)
27

I I .
Bef or e we t ur n t o t he mer i t s of t he par t i es’ ar gument s i n
t hi s case, we consi der Schaef er ’ s cont ent i on t hat “[ t ] he t r i al
cour t er r ed as a mat t er of l aw when i t f ound al l Pl ai nt i f f s had
st andi ng and asser t ed cl ai ms agai nst al l Def endant s. ” We r evi ew
t he di st r i ct cour t ’ s di sposi t i on of cr oss- mot i ons f or summar y
j udgment —i ncl udi ng i t s det er mi nat i ons r egar di ng st andi ng—de
novo, vi ewi ng t he f act s i n t he l i ght most f avor abl e t o t he non-
movi ng par t y. Li ber t ar i an Par t y of Va. v. J udd, 718 F. 3d 308,
313 ( 4t h Ci r . 2013) ; Covenant Medi a of S. C. , LLC v. Ci t y of N.
Char l est on, 493 F. 3d 421, 427- 28 ( 4t h Ci r . 2007) . Summar y
j udgment i s appr opr i at e when “t her e i s no genui ne di sput e as t o
any mat er i al f act and t he movant i s ent i t l ed t o j udgment as a
mat t er of l aw. ” Li ber t ar i an Par t y of Va. , 718 F. 3d at 313- 14
( quot i ng Fed. R. Ci v. P. 56( a) ) .
To est abl i sh st andi ng under Ar t i cl e I I I of t he
Const i t ut i on, a pl ai nt i f f must “al l ege ( 1) an i nj ur y t hat i s
( 2) f ai r l y t r aceabl e t o t he def endant ’ s al l egedl y unl awf ul
conduct and t hat i s ( 3) l i kel y t o be r edr essed by t he r equest ed
r el i ef . ” Luj an v. Def ender s of Wi l dl i f e, 504 U. S. 555, 590
( 1992) ( quot i ng Al l en v. Wr i ght , 468 U. S. 737, 751 ( 1984) )
( i nt er nal quot at i on mar ks omi t t ed) . The st andi ng r equi r ement
appl i es t o each cl ai m t hat a pl ai nt i f f seeks t o pr ess.
Dai ml er Chr ysl er Cor p. v. Cuno, 547 U. S. 332, 352 ( 2006) .
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28

Schaef er pr emi ses hi s ar gument t hat t he Pl ai nt i f f s l ack st andi ng
t o br i ng t hei r cl ai ms on t he i dea t hat ever y pl ai nt i f f must have
st andi ng as t o ever y def endant . However , t he Supr eme Cour t has
made i t cl ear t hat “t he pr esence of one par t y wi t h st andi ng i s
suf f i ci ent t o sat i sf y Ar t i cl e I I I ’ s case- or - cont r over sy
r equi r ement . ” Rumsf el d v. For um f or Academi c & I nst i t ut i onal
Ri ght s, I nc. , 547 U. S. 47, 52 n. 2 ( 2006) ; see al so Dep’ t of
Commer ce v. U. S. House of Repr esent at i ves, 525 U. S. 316, 330
( 1999) ( hol di ng t hat a case i s j ust i ci abl e i f some, but not
necessar i l y al l , of t he pl ai nt i f f s have st andi ng as t o a
par t i cul ar def endant ) ; Vi l l . of Ar l i ngt on Hei ght s v. Met r o.
Housi ng Dev. Cor p. , 429 U. S. 252, 263- 64 ( 1977) ( same) . The
Pl ai nt i f f s’ cl ai ms can t her ef or e sur vi ve Schaef er ’ s st andi ng
chal l enge as l ong as one coupl e sat i sf i es t he st andi ng
r equi r ement s wi t h r espect t o each def endant .
Schaef er ser ves as t he Cl er k f or t he Ci r cui t Cour t f or t he
Ci t y of Nor f ol k. I n Vi r gi ni a, ci r cui t cour t cl er ks ar e
r esponsi bl e f or i ssui ng mar r i age l i censes and f i l i ng r ecor ds of
mar r i age. Va. Code Ann. §§ 20- 14, 32. 1- 267. Al t hough Schal l
and Townl ey di d not seek a mar r i age l i cense f r om Schaef er , t he
di st r i ct cour t f ound t hat Bost i c and London di d so and t hat
Schaef er deni ed t hei r r equest because t hey ar e a same- sex
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Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (103 of 518)
29

coupl e.
2
Bost i c, 970 F. Supp. 2d at 462, 467. Thi s l i cense
deni al const i t ut es an i nj ur y f or st andi ng pur poses. See S.
Bl ast i ng Ser vs. , I nc. v. Wi l kes Cnt y. , 288 F. 3d 584, 595 ( 4t h
Ci r . 2002) ( expl ai ni ng t hat t he pl ai nt i f f s had not suf f er ed an
i nj ur y because t hey had not appl i ed f or , or been deni ed, t he
per mi t i n quest i on) ; Scot t v. Gr eenvi l l e Cnt y. , 716 F. 2d 1409,
1414- 15 & n. 6 ( 4t h Ci r . 1983) ( hol di ng t hat deni al of bui l di ng
per mi t const i t ut ed an i nj ur y) . Bost i c and London can t r ace t hi s
deni al t o Schaef er ’ s enf or cement of t he al l egedl y
unconst i t ut i onal Vi r gi ni a Mar r i age Laws,
3
and decl ar i ng t hose

2
Schaef er cont ends t hat Schal l and Townl ey cannot br i ng a
§ 1983 cl ai magai nst hi mf or t he same r eason: he di d not commi t
any act or omi ssi on t hat har med t hem. To br i ng a successf ul
§ 1983 cl ai m, a pl ai nt i f f must show t hat “t he al l eged
i nf r i ngement of f eder al r i ght s [ i s] ‘ f ai r l y at t r i but abl e t o t he
st at e[ . ] ’ ” Rendel l - Baker v. Kohn, 457 U. S. 830, 838 ( 1982)
( quot i ng Lugar v. Edmondson Oi l Co. , 457 U. S. 922, 937 ( 1982) ) .
Schaef er ’ s act i on i n denyi ng Bost i c and London’ s appl i cat i on f or
a mar r i age l i cense i s cl ear l y at t r i but abl e t o t he st at e. The
di st r i ct cour t coul d t her ef or e ent er t ai n a § 1983 cl ai m agai nst
Schaef er wi t hout ascer t ai ni ng whet her he commi t t ed any act i on
wi t h r espect t o Schal l and Townl ey.
3
For t hi s r eason, and cont r ar y t o Schaef er ’ s asser t i ons,
Schaef er i s al so a pr oper def endant under Ex par t e Young, 209
U. S. 123 ( 1908) . Pur suant t o Ex par t e Young, t he El event h
Amendment does not bar a ci t i zen f r om sui ng a st at e of f i cer t o
enj oi n t he enf or cement of an unconst i t ut i onal l aw when t he
of f i cer has “some connect i on wi t h t he enf or cement of t he act . ”
Lyt l e v. Gr i f f i t h, 240 F. 3d 404, 412 ( 4t h Ci r . 2001) ( emphasi s
omi t t ed) ( quot i ng Ex par t e Young, 209 U. S. at 157) . Schaef er
bear s t he r equi si t e connect i on t o t he enf or cement of t he
Vi r gi ni a Mar r i age Laws due t o hi s r ol e i n gr ant i ng and denyi ng
appl i cat i ons f or mar r i age l i censes.
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30

l aws unconst i t ut i onal and enj oi ni ng t hei r enf or cement woul d
r edr ess Bost i c and London’ s i nj ur i es. Bost i c and London
t her ef or e possess Ar t i cl e I I I st andi ng wi t h r espect t o Schaef er .
We consequent l y need not consi der whet her Schal l and Townl ey
have st andi ng t o sue Schaef er . See Hor ne v. Fl or es, 557 U. S.
433, 446- 47 ( 2009) ( decl i ni ng t o anal yze whet her addi t i onal
pl ai nt i f f s had st andi ng when one pl ai nt i f f di d) .
Rai ney—as t he Regi st r ar of Vi t al Recor ds—i s t asked wi t h
devel opi ng Vi r gi ni a’ s mar r i age l i cense appl i cat i on f or m and
di st r i but i ng i t t o t he ci r cui t cour t cl er ks t hr oughout Vi r gi ni a.
Va. Code Ann. §§ 32. 1- 252( A) ( 9) , 32. 1- 267( E) . Nei t her
Schaef er ’ s nor Rai ney’ s r esponse t o t he Fi r st Amended Compl ai nt
di sput es i t s descr i pt i on of Rai ney’ s dut i es:
Def endant Rai ney i s r esponsi bl e f or ensur i ng
compl i ance wi t h t he Commonweal t h’ s l aws r el at i ng t o
mar r i age i n gener al and, mor e speci f i cal l y, i s
r esponsi bl e f or enf or cement of t he speci f i c pr ovi si ons
at i ssue i n t hi s Amended Compl ai nt , namel y t hose l aws
t hat l i mi t mar r i age t o opposi t e- sex coupl es and t hat
r ef use t o honor t he benef i t s of same- sex mar r i ages
l awf ul l y ent er ed i nt o i n ot her st at es.

I n addi t i on t o per f or mi ng t hese mar r i age- r el at ed f unct i ons,
Rai ney devel ops and di st r i but es bi r t h cer t i f i cat e f or ms,
over sees t he r ul es r el at i ng t o bi r t h cer t i f i cat es, and f ur ni shes
f or ms r el at i ng t o adopt i on so t hat Vi r gi ni a can col l ect t he
i nf or mat i on necessar y t o pr epar e t he adopt ed chi l d’ s bi r t h
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cer t i f i cat e. I d. §§ 32. 1- 252( A) ( 2) - ( 3) , ( 9) , 32. 1- 257, 32. 1-
261( A) ( 1) , 32. 1- 262, 32. 1- 269.
Rai ney’ s pr omul gat i on of a mar r i age l i cense appl i cat i on
f or m t hat does not al l ow same- sex coupl es t o obt ai n mar r i age
l i censes r esul t ed i n Schaef er ’ s deni al of Bost i c and London’ s
mar r i age l i cense r equest . For t he r easons we descr i be above,
t hi s l i cense deni al const i t ut es an i nj ur y. Bost i c and London
can t r ace t hi s i nj ur y t o Rai ney due t o her r ol e i n devel opi ng
t he mar r i age l i cense appl i cat i on f or m i n compl i ance wi t h t he
Vi r gi ni a Mar r i age Laws, and t he r el i ef t hey seek woul d r edr ess
t hei r i nj ur i es. Bost i c and London consequent l y have st andi ng t o
sue Rai ney.
Schal l and Townl ey al so possess st andi ng t o br i ng t hei r
cl ai ms agai nst Rai ney. They sat i sf y t he i nj ur y r equi r ement i n
t wo ways. Fi r st , i n equal pr ot ect i on cases—such as t hi s case—
“[ w] hen t he gover nment er ect s a bar r i er t hat makes i t mor e
di f f i cul t f or member s of one gr oup t o obt ai n a benef i t t han i t
i s f or member s of anot her gr oup, . . . . [ t ] he ‘ i nj ur y i n f act ’
. . . i s t he deni al of equal t r eat ment r esul t i ng f r om t he
i mposi t i on of t he bar r i er [ . ] ” Ne. Fl a. Chapt er of Associ at ed
Gen. Cont r act or s of Am. v. Ci t y of J acksonvi l l e, 508 U. S. 656,
666 ( 1993) . The Vi r gi ni a Mar r i age Laws er ect such a bar r i er ,
whi ch pr event s same- sex coupl es f r om obt ai ni ng t he emot i onal ,
soci al , and f i nanci al benef i t s t hat opposi t e- sex coupl es r eal i ze
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upon mar r i age. Second, Schal l and Townl ey al l ege t hat t hey have
suf f er ed st i gmat i c i nj ur i es due t o t hei r i nabi l i t y t o get
mar r i ed i n Vi r gi ni a and Vi r gi ni a’ s r ef usal t o r ecogni ze t hei r
Cal i f or ni a mar r i age. St i gmat i c i nj ur y st emmi ng f r om
di scr i mi nat or y t r eat ment i s suf f i ci ent t o sat i sf y st andi ng’ s
i nj ur y r equi r ement i f t he pl ai nt i f f i dent i f i es “some concr et e
i nt er est wi t h r espect t o whi ch [ he or she] [ i s] per sonal l y
subj ect t o di scr i mi nat or y t r eat ment ” and “[ t ] hat i nt er est . . .
i ndependent l y sat i sf [ i es] t he causat i on r equi r ement of st andi ng
doct r i ne. ” Al l en, 468 U. S. at 757 n. 22, abr ogat ed on ot her
gr ounds by Lexmar k I nt ’ l , I nc. v. St at i c Cont r ol Component s, 134
S. Ct . 1377 ( 2014) . Schal l and Townl ey poi nt t o sever al
concr et e ways i n whi ch t he Vi r gi ni a Mar r i age Laws have r esul t ed
i n di scr i mi nat or y t r eat ment . For exampl e, t hey al l ege t hat
t hei r mar i t al st at us has hi nder ed Schal l f r om vi si t i ng Townl ey
i n t he hospi t al , pr event ed Schal l f r om adopt i ng E. S. - T. ,
4
and
subj ect ed Schal l and Townl ey t o t ax bur dens f r om whi ch mar r i ed
opposi t e- sex coupl es ar e exempt . Because Schal l and Townl ey
hi ghl i ght speci f i c, concr et e i nst ances of di scr i mi nat i on r at her

4
Vi r gi ni a does not expl i ci t l y pr ohi bi t same- sex coupl es
f r om adopt i ng chi l dr en. The Vi r gi ni a Mar r i age Laws i mpose a
f unct i onal ban on adopt i on by same- sex coupl es because t he
Vi r gi ni a Code al l ows onl y mar r i ed coupl es or unmar r i ed
i ndi vi dual s t o adopt chi l dr en. Va. Code Ann. § 63. 2- 1232( A) ( 6) .
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t han maki ng abst r act al l egat i ons, t hei r st i gmat i c i nj ur i es ar e
l egal l y cogni zabl e.
Schal l and Townl ey’ s i nj ur i es ar e t r aceabl e t o Rai ney’ s
enf or cement of t he Vi r gi ni a Mar r i age Laws. Because decl ar i ng
t he Vi r gi ni a Mar r i age Laws unconst i t ut i onal and enj oi ni ng t hei r
enf or cement woul d r edr ess Schal l and Townl ey’ s i nj ur i es, t hey
sat i sf y st andi ng doct r i ne’ s t hr ee r equi r ement s wi t h r espect t o
Rai ney. I n sum, each of t he Pl ai nt i f f s has st andi ng as t o at
l east one def endant .

I I I .
Havi ng r esol ved t he t hr eshol d i ssue of whet her t he
Pl ai nt i f f s have st andi ng t o sue Schaef er and Rai ney, we now t ur n
t o t he mer i t s of t he Opponent s’ Four t eent h Amendment ar gument s.
We begi n wi t h t he i ssue of whet her t he Supr eme Cour t ’ s summar y
di smi ssal i n Baker v. Nel son set t l es t hi s case. Baker came t o
t he Supr eme Cour t as an appeal f r om a Mi nnesot a Supr eme Cour t
deci si on, whi ch hel d t hat a st at e st at ut e t hat t he cour t
i nt er pr et ed t o bar same- sex mar r i ages di d not vi ol at e t he
Four t eent h Amendment ’ s Due Pr ocess or Equal Pr ot ect i on Cl auses.
Baker v. Nel son, 191 N. W. 2d 185, 187 ( Mi nn. 1971) . At t he t i me,
28 U. S. C. § 1257 r equi r ed t he Supr eme Cour t t o accept appeal s of
st at e supr eme cour t cases i nvol vi ng const i t ut i onal chal l enges t o
st at e st at ut es, such as Baker . See Hi cks v. Mi r anda, 422 U. S.
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332, 344 ( 1975) . The Cour t di smi ssed t he appeal i n a one-
sent ence opi ni on “f or want of a subst ant i al f eder al quest i on. ”
Baker , 409 U. S. 810.
Summar y di smi ssal s qual i f y as “vot es on t he mer i t s of a
case. ” Hi cks, 422 U. S. at 344 ( quot i ng Ohi o ex r el . Eat on v.
Pr i ce, 360 U. S. 246, 247 ( 1959) ) ( i nt er nal quot at i on mar ks
omi t t ed) . They t her ef or e “pr event l ower cour t s f r om comi ng t o
opposi t e concl usi ons on t he pr eci se i ssues pr esent ed and
necessar i l y deci ded. ” Mandel v. Br adl ey, 432 U. S. 173, 176
( 1977) ( per cur i am) . However , t he f act t hat Baker and t he case
at hand addr ess t he same pr eci se i ssues does not end our
i nqui r y. Summar y di smi ssal s l ose t hei r bi ndi ng f or ce when
“doct r i nal devel opment s” i l l ust r at e t hat t he Supr eme Cour t no
l onger vi ews a quest i on as unsubst ant i al , r egar dl ess of whet her
t he Cour t expl i ci t l y over r ul es t he case. Hi cks, 422 U. S. at 344
( quot i ng Por t Aut h. Bondhol der s Pr ot ect i ve Comm. v. Por t of N. Y.
Aut h. , 387 F. 2d 259, 263 n. 3 ( 2d Ci r . 1967) ) ( i nt er nal quot at i on
mar ks omi t t ed) . The di st r i ct cour t det er mi ned t hat doct r i nal
devel opment s st r i pped Baker of i t s st at us as bi ndi ng pr ecedent .
Bost i c, 970 F. Supp. 2d at 469- 70. Ever y f eder al cour t t o
consi der t hi s i ssue si nce t he Supr eme Cour t deci ded Uni t ed
St at es v. Wi ndsor , 133 S. Ct . 2675 ( 2013) , has r eached t he same
concl usi on. See Bi shop v. Smi t h, Nos. 14- 5003, 14- 5006, 2014 WL
3537847, at *6- 7 ( 10t h Ci r . J ul y 18, 2014) ; Ki t chen v. Her ber t ,
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No. 13- 4178, 2014 WL 2868044, at *7- 10 ( 10t h Ci r . J une 25,
2014) ; Love v. Beshear , No. 3: 13- cv- 750- H, 2014 WL 2957671, *2- 3
( W. D. Ky. J ul y 1, 2014) ; Baski n v. Bogan, Nos. 1: 14- cv- 00355-
RLY- TAB, 1: 14- cv- 00404- RLY- TAB, 2014 WL 2884868, at *4- 6 ( S. D.
I nd. J une 25, 2014) ; Wol f v. Wal ker , No. 14- cv- 64- bbc, 2014 WL
2558444, at *4- 6 ( W. D. Wi s. J une 6, 2014) ; Whi t ewood v. Wol f ,
No. 1: 13- cv- 1861, 2014 WL 2058105, at *5- 6 ( M. D. Pa. May 20,
2014) ; Gei ger v. Ki t zhaber , Nos. 6: 13- cv- 01834- MC, 6: 13- cv-
02256- MC, 2014 WL 2054264, at *1 n. 1 ( D. Or . May 19, 2014) ;
Lat t a v. Ot t er , No. 1: 13- cv- 00482- CWD, 2014 WL 1909999, at *8- 9
( D. I daho May 13, 2014) ; DeBoer v. Snyder , 973 F. Supp. 2d 757,
773 n. 6 ( E. D. Mi ch. 2014) ; De Leon v. Per r y, 975 F. Supp. 2d
632, 647- 49 ( W. D. Tex. 2014) ; McGee v. Col e, No. 3: 13- 24068,
2014 WL 321122, at *8- 10 ( S. D. W. Va. J an. 29, 2014) .
Wi ndsor concer ned whet her sect i on 3 of t he f eder al Def ense
of Mar r i age Act ( DOMA) cont r avened t he Const i t ut i on’ s due
pr ocess and equal pr ot ect i on guar ant ees. Sect i on 3 def i ned
“mar r i age” and “spouse” as excl udi ng same- sex coupl es when t hose
t er ms appear ed i n f eder al st at ut es, r egul at i ons, and di r ect i ves,
r ender i ng l egal l y mar r i ed same- sex coupl es i nel i gi bl e f or myr i ad
f eder al benef i t s. 133 S. Ct . at 2683, 2694. When i t deci ded
t he case bel ow, t he Second Ci r cui t concl uded t hat Baker was no
l onger pr ecedent i al , Wi ndsor v. Uni t ed St at es, 699 F. 3d 169,
178- 79 ( 2d Ci r . 2012) , over t he di ssent ’ s vi gor ous ar gument s t o
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t he cont r ar y, see i d. at 192- 95 ( St r aub, J . , di ssent i ng i n par t
and concur r i ng i n par t ) . Despi t e t hi s di sput e, t he Supr eme
Cour t di d not di scuss Baker i n i t s opi ni on or dur i ng or al
ar gument .
5

The Supr eme Cour t ’ s wi l l i ngness t o deci de Wi ndsor wi t hout
ment i oni ng Baker speaks vol umes r egar di ng whet her Baker r emai ns
good l aw. The Cour t ’ s devel opment of i t s due pr ocess and equal
pr ot ect i on j ur i spr udence i n t he f our decades f ol l owi ng Baker i s
even mor e i nst r uct i ve. On t he Due Pr ocess f r ont , Lawr ence v.
Texas, 539 U. S. 558 ( 2003) , and Wi ndsor ar e par t i cul ar l y
r el evant . I n Lawr ence, t he Cour t r ecogni zed t hat t he Due
Pr ocess Cl auses of t he Fi f t h and Four t eent h Amendment s “af f or d
const i t ut i onal pr ot ect i on t o per sonal deci si ons r el at i ng t o
mar r i age, pr ocr eat i on, cont r acept i on, f ami l y r el at i onshi ps,
chi l d r ear i ng, and educat i on. . . . Per sons i n a homosexual
r el at i onshi p may seek aut onomy f or t hese pur poses, j ust as

5
The const i t ut i onal i t y of a l aw t hat pr ohi bi t ed mar r i age
f r om encompassi ng same- sex r el at i onshi ps was al so at i ssue i n
Hol l i ngswor t h v. Per r y, 133 S. Ct . 2652 ( 2013) , a case t hat t he
Supr eme Cour t ul t i mat el y deci ded on st andi ng gr ounds. Al t hough
t he pet i t i oner s’ at t or ney at t empt ed t o i nvoke Baker dur i ng or al
ar gument , J ust i ce Gi nsbur g i nt er j ect ed: “Baker v. Nel son was
1971. The Supr eme Cour t hadn’ t even deci ded t hat gender - based
cl assi f i cat i ons get any ki nd of hei ght ened scr ut i ny. . . .
[ S] ame- sex i nt i mat e conduct was consi der ed cr i mi nal i n many
st at es i n 1971, so I don’ t t hi nk we can ext r act much i n Baker v.
Nel son. ” Or al Ar gument at 11: 33, Hol l i ngswor t h v. Per r y, 133 S.
Ct . 2652 ( No. 12- 144) , avai l abl e at 2013 WL 1212745.
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het er osexual per sons do. ” I d. at 574. These consi der at i ons l ed
t he Cour t t o st r i ke down a Texas st at ut e t hat cr i mi nal i zed same-
sex sodomy. I d. at 563, 578- 79. The Wi ndsor Cour t based i t s
deci si on t o i nval i dat e sect i on 3 of DOMA on t he Fi f t h
Amendment ’ s Due Pr ocess Cl ause. The Cour t concl uded t hat
sect i on 3 coul d not wi t hst and const i t ut i onal scr ut i ny because
“t he pr i nci pal pur pose and t he necessar y ef f ect of [ sect i on 3]
ar e t o demean t hose per sons who ar e i n a l awf ul same- sex
mar r i age, ” who—l i ke t he unmar r i ed same- sex coupl e i n Lawr ence—
have a const i t ut i onal r i ght t o make “mor al and sexual choi ces. ”
133 S. Ct . at 2694- 95. These cases f i r ml y posi t i on same- sex
r el at i onshi ps wi t hi n t he ambi t of t he Due Pr ocess Cl auses’
pr ot ect i on.
The Cour t has al so i ssued sever al maj or equal pr ot ect i on
deci si ons si nce i t deci ded Baker . The Cour t ’ s opi ni ons i n Cr ai g
v. Bor en, 429 U. S. 190 ( 1976) , and Fr ont i er o v. Ri char dson, 411
U. S. 677 ( 1973) , i dent i f i ed sex- based cl assi f i cat i ons as quasi -
suspect , causi ng t hem t o war r ant i nt er medi at e scr ut i ny r at her
t han r at i onal basi s r evi ew, see Cr ai g, 429 U. S. at 218
( Rehnqui st , J . , di ssent i ng) ( coi ni ng t he t er m “i nt er medi at e
l evel scr ut i ny” t o descr i be t he Cour t ’ s t est ( i nt er nal quot at i on
mar ks omi t t ed) ) . Two decades l at er , i n Romer v. Evans, t he
Supr eme Cour t st r uck down a Col or ado const i t ut i onal amendment
t hat pr ohi bi t ed l egi sl at i ve, execut i ve, and j udi ci al act i on
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ai med at pr ot ect i ng gay, l esbi an, and bi sexual i ndi vi dual s f r om
di scr i mi nat i on. 517 U. S. 620, 624, 635 ( 1996) . The Cour t
concl uded t hat t he l aw vi ol at ed t he Four t eent h Amendment ’ s Equal
Pr ot ect i on Cl ause because “i t s sheer br eadt h i s so di scont i nuous
wi t h t he r easons of f er ed f or i t t hat t he amendment seems
i nexpl i cabl e by anyt hi ng but ani mus t owar d t he cl ass i t
af f ect s, ” causi ng t he l aw t o “l ack[ ] a r at i onal r el at i onshi p t o
l egi t i mat e st at e i nt er est s. ” I d. at 632. Fi nal l y, t he Supr eme
Cour t couched i t s deci si on i n Wi ndsor i n bot h due pr ocess and
equal pr ot ect i on t er ms. 133 S. Ct . at 2693, 2695. These cases
demonst r at e t hat , si nce Baker , t he Cour t has meani ngf ul l y
al t er ed t he way i t vi ews bot h sex and sexual or i ent at i on t hr ough
t he equal pr ot ect i on l ens.
I n l i ght of t he Supr eme Cour t ’ s appar ent abandonment of
Baker and t he si gni f i cant doct r i nal devel opment s t hat occur r ed
af t er t he Cour t i ssued i t s summar y di smi ssal i n t hat case, we
decl i ne t o vi ew Baker as bi ndi ng pr ecedent and pr oceed t o t he
meat of t he Opponent s’ Four t eent h Amendment ar gument s.

I V.
A.
Our anal ysi s of t he Opponent s’ Four t eent h Amendment cl ai ms
has t wo component s. Fi r st , we ascer t ai n what l evel of
const i t ut i onal scr ut i ny appl i es: ei t her r at i onal basi s r evi ew
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or some f or m of hei ght ened scr ut i ny, such as st r i ct scr ut i ny.
Second, we appl y t he appr opr i at e l evel of scr ut i ny t o det er mi ne
whet her t he Vi r gi ni a Mar r i age Laws pass const i t ut i onal must er .
Under bot h t he Due Pr ocess and Equal Pr ot ect i on Cl auses,
i nt er f er ence wi t h a f undament al r i ght war r ant s t he appl i cat i on
of st r i ct scr ut i ny.
6
Washi ngt on v. Gl ucksber g, 521 U. S. 702,
719- 20 ( 1997) ; Zabl ocki v. Redhai l , 434 U. S. 374, 383 ( 1978) .
We t her ef or e begi n by assessi ng whet her t he Vi r gi ni a Mar r i age
Laws i nf r i nge on a f undament al r i ght . Fundament al r i ght s spr i ng
f r om t he Four t eent h Amendment ’ s pr ot ect i on of i ndi vi dual
l i ber t y, whi ch t he Supr eme Cour t has descr i bed as “t he r i ght t o
def i ne one’ s own concept of exi st ence, of meani ng, of t he
uni ver se, and of t he myst er y of human l i f e. ” Pl anned Par ent hood
of Se. Pa. v. Casey, 505 U. S. 833, 851 ( 1992) . Thi s l i ber t y
i ncl udes t he f undament al r i ght t o mar r y. Zabl ocki , 434 U. S. at
383; Lovi ng v. Vi r gi ni a, 388 U. S. 1, 12 ( 1967) ; see Gr i swol d v.

6
The Equal Pr ot ect i on Cl ause al so di ct at es t hat some f or m
of hei ght ened scr ut i ny appl i es when a l aw di scr i mi nat es based on
a suspect or quasi - suspect cl assi f i cat i on, such as r ace or
gender . See Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Ct r . , 473 U. S.
432, 440- 41 ( 1985) ; Mass. Bd. of Ret . v. Mur gi a, 427 U. S. 307,
313- 14 ( 1976) ( per cur i am) . Thi s Cour t pr evi ousl y decl i ned t o
r ecogni ze sexual or i ent at i on as a suspect cl assi f i cat i on i n
Thomasson v. Per r y, 80 F. 3d 915, 928 ( 4t h Ci r . 1996) ( en banc) ,
and Veney v. Wyche, 293 F. 3d 726, 731- 32 ( 4t h Ci r . 2002) .
Because we concl ude t hat t he Vi r gi ni a Mar r i age Laws war r ant
st r i ct scr ut i ny due t o t hei r i nf r i ngement of t he f undament al
r i ght t o mar r y, we need not r each t he quest i on of whet her
Thomasson and Veney r emai n good l aw.
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Connect i cut , 381 U. S. 479, 485- 86 ( 1965) ( pl aci ng t he r i ght t o
mar r y wi t hi n t he f undament al r i ght t o pr i vacy) ; see al so Ski nner
v. Okl ahoma ex r el . Wi l l i amson, 316 U. S. 535, 541 ( 1942)
( char act er i zi ng mar r i age as “one of t he basi c ci vi l r i ght s of
man”) ; Maynar d v. Hi l l , 125 U. S. 190, 205 ( 1888) ( cal l i ng
mar r i age “t he most i mpor t ant r el at i on i n l i f e” and “t he
f oundat i on of t he f ami l y and of soci et y, wi t hout whi ch t her e
woul d be nei t her ci vi l i zat i on nor pr ogr ess”) .
The Opponent s and Pr oponent s agr ee t hat mar r i age i s a
f undament al r i ght . They st r ongl y di sagr ee, however , r egar di ng
whet her t hat r i ght encompasses t he r i ght t o same- sex mar r i age.
The Opponent s ar gue t hat t he f undament al r i ght t o mar r y bel ongs
t o t he i ndi vi dual , who enj oys t he r i ght t o mar r y t he per son of
hi s or her choi ce. By cont r ast , t he Pr oponent s poi nt out t hat ,
t r adi t i onal l y, st at es have sanct i oned onl y man- woman mar r i ages.
They cont end t hat , i n l i ght of t hi s hi st or y, t he r i ght t o mar r y
does not i ncl ude a r i ght t o same- sex mar r i age.
Rel yi ng on Washi ngt on v. Gl ucksber g, t he Pr oponent s aver
t hat t he di st r i ct cour t er r ed by not r equi r i ng “a car ef ul
descr i pt i on of t he asser t ed f undament al l i ber t y i nt er est , ” 521
U. S. at 721 ( i nt er nal quot at i on mar ks omi t t ed) , whi ch t hey
char act er i ze as t he r i ght t o “mar r i age t o anot her per son of t he
same sex, ” not t he r i ght t o mar r y. I n Gl ucksber g, t he Supr eme
Cour t descr i bed t he r i ght at i ssue as “a r i ght t o commi t sui ci de
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wi t h anot her ’ s assi st ance. ” I d. at 724. The Cour t decl i ned t o
cat egor i ze t hi s r i ght as a new f undament al r i ght because i t was
not , “obj ect i vel y, deepl y r oot ed i n t hi s Nat i on’ s hi st or y and
t r adi t i on. ” See i d. at 720- 21 ( quot i ng Moor e v. Ci t y of E.
Cl evel and, 431 U. S. 494, 503 ( 1977) ) ( i nt er nal quot at i on mar ks
omi t t ed) . The Pr oponent s ur ge us t o r ej ect t he r i ght t o same-
sex mar r i age f or t he same r eason.
We do not di sput e t hat st at es have r ef used t o per mi t same-
sex mar r i ages f or most of our count r y’ s hi st or y. However , t hi s
f act i s i r r el evant i n t hi s case because Gl ucksber g’ s anal ysi s
appl i es onl y when cour t s consi der whet her t o r ecogni ze new
f undament al r i ght s. See i d. at 720, 727 & n. 19 ( i dent i f yi ng t he
above pr ocess as a way of “expand[ i ng] t he concept of
subst ant i ve due pr ocess” beyond est abl i shed f undament al r i ght s,
such as t he r i ght t o mar r y ( quot i ng Col l i ns v. Ci t y of Har ker
Hei ght s, 503 U. S. 115, 125 ( 1992) ) ( i nt er nal quot at i on mar ks
omi t t ed) ) . Because we concl ude t hat t he f undament al r i ght t o
mar r y encompasses t he r i ght t o same- sex mar r i age, Gl ucksber g’ s
anal ysi s i s i nappl i cabl e her e.
Over t he decades, t he Supr eme Cour t has demonst r at ed t hat
t he r i ght t o mar r y i s an expansi ve l i ber t y i nt er est t hat may
st r et ch t o accommodat e changi ng soci et al nor ms. Per haps most
not abl y, i n Lovi ng v. Vi r gi ni a, t he Supr eme Cour t i nval i dat ed a
Vi r gi ni a l aw t hat pr ohi bi t ed whi t e i ndi vi dual s f r om mar r yi ng
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i ndi vi dual s of ot her r aces. 388 U. S. at 4. The Cour t expl ai ned
t hat “[ t ] he f r eedom t o mar r y has l ong been r ecogni zed as one of
t he vi t al per sonal r i ght s essent i al t o t he or der l y pur sui t of
happi ness by f r ee men” and t hat no val i d basi s j ust i f i ed t he
Vi r gi ni a l aw’ s i nf r i ngement of t hat r i ght . I d. at 12.
Subsequent l y, i n Zabl ocki v. Redhai l , t he Supr eme Cour t
consi der ed t he const i t ut i onal i t y of a Wi sconsi n st at ut e t hat
r equi r ed peopl e obl i gat ed t o pay chi l d suppor t t o obt ai n a cour t
or der gr ant i ng per mi ssi on t o mar r y bef or e t hey coul d r ecei ve a
mar r i age l i cense. 434 U. S. at 375, 383- 84. The st at ut e
speci f i ed t hat a cour t shoul d gr ant per mi ssi on onl y t o
appl i cant s who pr oved t hat t hey had compl i ed wi t h t hei r chi l d
suppor t obl i gat i ons and demonst r at ed t hat t hei r chi l dr en wer e
not l i kel y t o become “publ i c char ges. ” I d. at 375 ( i nt er nal
quot at i on mar ks omi t t ed) . The Cour t hel d t hat t he st at ut e
i mper mi ssi bl y i nf r i nged on t he r i ght t o mar r y. See i d. at 390-
91. Fi nal l y, i n Tur ner v. Saf l ey, t he Cour t det er mi ned t hat a
Mi ssour i r egul at i on t hat gener al l y pr ohi bi t ed pr i son i nmat es
f r om mar r yi ng was an unconst i t ut i onal br each of t he r i ght t o
mar r y. 482 U. S. 78, 82, 94- 99 ( 1987) .
These cases do not def i ne t he r i ght s i n quest i on as “t he
r i ght t o i nt er r aci al mar r i age, ” “t he r i ght of peopl e owi ng chi l d
suppor t t o mar r y, ” and “t he r i ght of pr i son i nmat es t o mar r y. ”
I nst ead, t hey speak of a br oad r i ght t o mar r y t hat i s not
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ci r cumscr i bed based on t he char act er i st i cs of t he i ndi vi dual s
seeki ng t o exer ci se t hat r i ght . The Supr eme Cour t ’ s
unwi l l i ngness t o const r ai n t he r i ght t o mar r y t o cer t ai n
subspeci es of mar r i age meshes wi t h i t s concl usi on t hat t he r i ght
t o mar r y i s a mat t er of “f r eedom of choi ce, ” Zabl ocki , 434 U. S.
at 387, t hat “r esi des wi t h t he i ndi vi dual , ” Lovi ng, 388 U. S. at
12. I f cour t s l i mi t ed t he r i ght t o mar r y t o cer t ai n coupl i ngs,
t hey woul d ef f ect i vel y cr eat e a l i st of l egal l y pr ef er r ed
spouses, r ender i ng t he choi ce of whom t o mar r y a hol l ow choi ce
i ndeed.
The Pr oponent s poi nt out t hat Lovi ng, Zabl ocki , and Tur ner
each i nvol ved opposi t e- sex coupl es. They cont end t hat , because
t he coupl es i n t hose cases chose t o ent er opposi t e- sex
mar r i ages, we cannot use t hemt o concl ude t hat t he Supr eme Cour t
woul d gr ant t he same l evel of const i t ut i onal pr ot ect i on t o t he
choi ce t o mar r y a per son of t he same sex. However , t he Supr eme
Cour t ’ s deci si ons i n Lawr ence and Wi ndsor suggest ot her wi se. I n
Lawr ence, t he Cour t expr essl y r ef used t o nar r owl y def i ne t he
r i ght at i ssue as t he r i ght of “homosexual s t o engage i n
sodomy, ” concl udi ng t hat doi ng so woul d const i t ut e a “f ai l ur e t o
appr eci at e t he ext ent of t he l i ber t y at st ake. ” 539 U. S. at
566- 67. J ust as i t has done i n t he r i ght - t o- mar r y ar ena, t he
Cour t i dent i f i ed t he r i ght at i ssue i n Lawr ence as a mat t er of
choi ce, expl ai ni ng t hat gay and l esbi an i ndi vi dual s—l i ke al l
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peopl e—enj oy t he r i ght t o make deci si ons r egar di ng t hei r
per sonal r el at i onshi ps. I d. at 567. As we not e above, t he
Cour t r ei t er at ed t hi s t heme i n Wi ndsor , i n whi ch i t based i t s
concl usi on t hat sect i on 3 of DOMA was unconst i t ut i onal , i n par t ,
on t hat pr ovi si on’ s di sr espect f or t he “mor al and sexual
choi ces” t hat accompany a same- sex coupl e’ s deci si on t o mar r y.
133 S. Ct . at 2694. Lawr ence and Wi ndsor i ndi cat e t hat t he
choi ces t hat i ndi vi dual s make i n t he cont ext of same- sex
r el at i onshi ps enj oy t he same const i t ut i onal pr ot ect i on as t he
choi ces accompanyi ng opposi t e- sex r el at i onshi ps. We t her ef or e
have no r eason t o suspect t hat t he Supr eme Cour t woul d accor d
t he choi ce t o mar r y someone of t he same sex any l ess r espect
t han t he choi ce t o mar r y an opposi t e- sex i ndi vi dual who i s of a
di f f er ent r ace, owes chi l d suppor t , or i s i mpr i soned.
Accor di ngl y, we decl i ne t he Pr oponent s’ i nvi t at i on t o
char act er i ze t he r i ght at i ssue i n t hi s case as t he r i ght t o
same- sex mar r i age r at her t han si mpl y t he r i ght t o mar r y.
Of cour se, “[ b] y r eaf f i r mi ng t he f undament al char act er of
t he r i ght t o mar r y, we do not mean t o suggest t hat ever y st at e
r egul at i on whi ch r el at es i n any way t o t he i nci dent s of or
pr er equi si t es f or mar r i age must be subj ect ed t o r i gor ous
scr ut i ny. ” Zabl ocki , 434 U. S. at 386. St r i ct scr ut i ny appl i es
onl y when l aws “si gni f i cant l y i nt er f er e” wi t h a f undament al
r i ght . See i d. at 386- 87. The Vi r gi ni a Mar r i age Laws
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unquest i onabl y sat i sf y t hi s r equi r ement : t hey i mpede t he r i ght
t o mar r y by pr event i ng same- sex coupl es f r om mar r yi ng and
nul l i f yi ng t he l egal i mpor t of t hei r out - of - st at e mar r i ages.
St r i ct scr ut i ny t her ef or e appl i es i n t hi s case.

B.
Under st r i ct scr ut i ny, a l aw “may be j ust i f i ed onl y by
compel l i ng st at e i nt er est s, and must be nar r owl y dr awn t o
expr ess onl y t hose i nt er est s. ” Car ey v. Popul at i on Ser vs.
I nt ’ l , 431 U. S. 678, 686 ( 1977) . The Pr oponent s bear t he bur den
of demonst r at i ng t hat t he Vi r gi ni a Mar r i age Laws sat i sf y t hi s
st andar d, see Fi sher v. Uni v. of Tex. at Aust i n, 133 S. Ct .
2411, 2420 ( 2013) , and t hey must r el y on t he l aws’ “act ual
pur pose[ s] ” r at her t han hypot het i cal j ust i f i cat i ons, see Shaw v.
Hunt , 517 U. S. 899, 908 n. 4 ( 1996) . The Pr oponent s
7
cont end t hat
f i ve compel l i ng i nt er est s under gi r d t he Vi r gi ni a Mar r i age Laws:
( 1) Vi r gi ni a’ s f eder al i sm- based i nt er est i n mai nt ai ni ng cont r ol
over t he def i ni t i on of mar r i age wi t hi n i t s bor der s, ( 2) t he
hi st or y and t r adi t i on of opposi t e- sex mar r i age, ( 3) pr ot ect i ng
t he i nst i t ut i on of mar r i age, ( 4) encour agi ng r esponsi bl e

7
Al t hough some of t hese ar gument s appear onl y i n McQui gg’ s
br i ef s, we at t r i but e t hem t o t he Pr oponent s because Schaef er
“r eser ved t he r i ght t o adopt and i ncor por at e i n whol e or i n
par t ” McQui gg’ s di scussi on of t he r at i onal es under l yi ng t he
Vi r gi ni a Mar r i age Laws.
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pr ocr eat i on, and ( 5) pr omot i ng t he opt i mal chi l dr ear i ng
envi r onment . We di scuss each of t hese i nt er est s i n t ur n.

1. Feder al i sm
The Const i t ut i on does not gr ant t he f eder al gover nment any
aut hor i t y over domest i c r el at i ons mat t er s, such as mar r i age.
Accor di ngl y, t hr oughout our count r y’ s hi st or y, st at es have
enj oyed t he f r eedom t o def i ne and r egul at e mar r i age as t hey see
f i t . See Wi ndsor , 133 S. Ct . at 2691- 92. St at es’ cont r ol over
mar r i age l aws wi t hi n t hei r bor der s has r esul t ed i n some
var i at i on among st at es’ r equi r ement s. For exampl e, West
Vi r gi ni a pr ohi bi t s f i r st cousi ns f r om mar r yi ng, W. Va. Code
§ 48- 2- 302, but t he r emai ni ng st at es i n t hi s Ci r cui t al l ow f i r st
cousi n mar r i age, see Md. Code Ann. , Fam. Law § 2- 202; N. C. Gen.
St at . § 51- 3; S. C. Code Ann. § 20- 1- 10; Va. Code Ann. § 20- 38. 1.
St at es’ power t o def i ne and r egul at e mar r i age al so account s f or
t hei r di f f er i ng t r eat ment of same- sex coupl es.
The Wi ndsor deci si on r est ed i n par t on t he Supr eme Cour t ’ s
r espect f or st at es’ supr emacy i n t he domest i c r el at i ons spher e.
8


8
I n Wi ndsor , t he Cour t di d not l abel t he t ype of
const i t ut i onal scr ut i ny i t appl i ed, l eavi ng us unsur e how t he
Cour t woul d f i t i t s f eder al i sm di scussi on wi t hi n a t r adi t i onal
hei ght ened scr ut i ny or r at i onal basi s anal ysi s. The l ower
cour t s have t aken di f f er i ng appr oaches, wi t h some di scussi ng
Wi ndsor and f eder al i sm as a t hr eshol d mat t er , see, e. g. , Wol f ,
2014 WL 2558444, at *8- 12; Bi shop v. Uni t ed St at es ex r el .

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The Cour t r ecogni zed t hat sect i on 3 of DOMA upset t he st at us quo
by r obbi ng st at es of t hei r abi l i t y t o def i ne mar r i age. Al t hough
st at es coul d l egal i ze same- sex mar r i age, t hey coul d not ensur e
t hat t he i nci dent s, benef i t s, and obl i gat i ons of mar r i age woul d
be uni f or m wi t hi n t hei r bor der s. See Wi ndsor , 133 S. Ct . at
2692. However , t he Cour t di d not l ament t hat sect i on 3 had
usur ped st at es’ aut hor i t y over mar r i age due t o i t s desi r e t o
saf eguar d f eder al i sm. I d. ( “[ T] he St at e’ s power i n def i ni ng t he
mar i t al r el at i on i s of cent r al r el evance i n t hi s case qui t e
apar t f r om t he pr i nci pl es of f eder al i sm. ”) . I t s concer n spr ung
f r om sect i on 3’ s cr eat i on of t wo cl asses of mar r i ed coupl es
wi t hi n st at es t hat had l egal i zed same- sex mar r i age: opposi t e-
sex coupl es, whose mar r i ages t he f eder al gover nment r ecogni zed,
and same- sex coupl es, whose mar r i ages t he f eder al gover nment
i gnor ed. I d. The r esul t i ng i nj ur y t o same- sex coupl es ser ved
as t he f oundat i on f or t he Cour t ’ s concl usi on t hat sect i on 3
vi ol at ed t he Fi f t h Amendment ’ s Due Pr ocess Cl ause. I d. at 2693.


Hol der , 962 F. Supp. 2d 1252, 1277- 79 ( N. D. Okl a. 2014) ; Ki t chen
v. Her ber t , 961 F. Supp. 2d 1181, 1193- 94 ( D. Ut ah 2013) , and
ot her s—such as t he di st r i ct cour t i n t hi s case—consi der i ng
f eder al i sm as a st at e i nt er est under l yi ng t he same- sex mar r i age
bans at i ssue, see, e. g. , Lat t a, 2014 WL 1909999, at *25- 26;
DeBoer , 973 F. Supp. 2d at 773- 75; Bost i c, 970 F. Supp. 2d at
475- 77. Al t hough we f ol l ow t he di st r i ct cour t ’ s l ead and
si t uat e our f eder al i sm di scussi on wi t hi n our appl i cat i on of
st r i ct scr ut i ny, our concl usi on woul d r emai n t he same even i f we
sel ect ed an al t er nat e or gani zat i onal appr oach.
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Ci t i ng Wi ndsor , t he Pr oponent s ur ge us t o vi ew Vi r gi ni a’ s
f eder al i sm- based i nt er est i n def i ni ng mar r i age as a sui t abl e
j ust i f i cat i on f or t he Vi r gi ni a Mar r i age Laws. However , Wi ndsor
i s act ual l y det r i ment al t o t hei r posi t i on. Al t hough t he Cour t
emphasi zed st at es’ t r adi t i onal aut hor i t y over mar r i age, i t
acknowl edged t hat “[ s] t at e l aws def i ni ng and r egul at i ng
mar r i age, of cour se, must r espect t he const i t ut i onal r i ght s of
per sons. ” I d. at 2691 ( ci t i ng Lovi ng, 388 U. S. 1) ; see al so i d.
at 2692 ( “The St at es’ i nt er est i n def i ni ng and r egul at i ng t he
mar i t al r el at i on[ ] [ i s] subj ect t o const i t ut i onal guar ant ees. ”) .
Wi ndsor does not t each us t hat f eder al i sm pr i nci pl es can j ust i f y
depr i vi ng i ndi vi dual s of t hei r const i t ut i onal r i ght s; i t
r ei t er at es Lovi ng’ s admoni t i on t hat t he st at es must exer ci se
t hei r aut hor i t y wi t hout t r ampl i ng const i t ut i onal guar ant ees.
Vi r gi ni a’ s f eder al i sm- based i nt er est i n def i ni ng mar r i age
t her ef or e cannot j ust i f y i t s encr oachment on t he f undament al
r i ght t o mar r y.
The Supr eme Cour t ’ s r ecent deci si on i n Schuet t e v.
Coal i t i on t o Def end Af f i r mat i ve Act i on, 134 S. Ct . 1623 ( 2014) ,
does not change t he concl usi on t hat Wi ndsor di ct at es. I n
Schuet t e, t he Cour t r ef used t o st r i ke down a vot er - appr oved
st at e const i t ut i onal amendment t hat bar r ed publ i c uni ver si t i es
i n Mi chi gan f r om usi ng r ace- based pr ef er ences as par t of t hei r
admi ssi ons pr ocesses. I d. at 1629, 1638. The Cour t decl i ned t o
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cl osel y scr ut i ni ze t he amendment because i t was not “used, or
. . . l i kel y t o be used, t o encour age i nf l i ct i on of i nj ur y by
r eason of r ace. ” See i d. at 1638. I nst ead, t he Cour t dwel l ed
on t he need t o r espect t he vot er s’ pol i cy choi ce, concl udi ng
t hat “[ i ] t i s demeani ng t o t he democr at i c pr ocess t o pr esume
t hat t he vot er s ar e not capabl e of deci di ng an i ssue of t hi s
sensi t i vi t y on decent and r at i onal gr ounds” and t he j udi ci ar y’ s
r ol e was not t o “di sempower t he vot er s f r om choosi ng whi ch pat h
t o f ol l ow. ” I d. at 1635- 38.
The Pr oponent s emphasi ze t hat Vi r gi ni a’ s vot er s appr oved
t he Mar shal l / Newman Amendment . Li ke t he Mi chi gan amendment at
i ssue i n Schuet t e, t he Mar shal l / Newman Amendment i s t he
codi f i cat i on of Vi r gi ni ans’ pol i cy choi ce i n a l egal ar ena t hat
i s f r aught wi t h i nt ense soci al and pol i t i cal debat e. Amer i cans’
abi l i t y t o speak wi t h t hei r vot es i s essent i al t o our democr acy.
But t he peopl e’ s wi l l i s not an i ndependent compel l i ng i nt er est
t hat war r ant s depr i vi ng same- sex coupl es of t hei r f undament al
r i ght t o mar r y.
The ver y pur pose of a Bi l l of Ri ght s
9
was t o wi t hdr aw
cer t ai n subj ect s f r om t he vi ci ssi t udes of pol i t i cal

9
Of cour se, t he Four t eent h Amendment i s not par t of t he
Bi l l of Ri ght s. Thi s excer pt f r om Bar net t e i s never t hel ess
r el evant her e due t o t he Four t eent h Amendment ’ s si mi l ar goal of
pr ot ect i ng unpopul ar mi nor i t i es f r om gover nment over r eachi ng,
see Regent s of Uni v. of Cal . v. Bakke, 438 U. S. 265, 293 ( 1978) ,
and i t s r ol e i n r ender i ng t he Bi l l of Ri ght s appl i cabl e t o t he
st at es, see Duncan v. Loui si ana, 391 U. S. 145, 147- 48 ( 1968) .
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cont r over sy, t o pl ace t hem beyond t he r each of
maj or i t i es and of f i ci al s and t o est abl i sh t hem as
l egal pr i nci pl es t o be appl i ed by t he cour t s. One’ s
r i ght t o l i f e, l i ber t y, and pr oper t y, t o f r ee speech,
a f r ee pr ess, f r eedom of wor shi p and assembl y, and
ot her f undament al r i ght s may not be submi t t ed t o vot e;
t hey depend on t he out come of no el ect i ons.

W. Va. St at e Bd. of Educ. v. Bar net t e, 319 U. S. 624, 638 ( 1943)
( f oot not e added) ; see al so Romer , 517 U. S. at 623 ( i nval i dat i ng
a vot er - appr oved amendment t o Col or ado’ s const i t ut i on) ; Lucas v.
For t y- Four t h Gen. Assembl y of Col o. , 377 U. S. 713, 736- 37 ( 1964)
( “A ci t i zen’ s const i t ut i onal r i ght s can har dl y be i nf r i nged
si mpl y because a maj or i t y of t he peopl e choose t hat i t be. ”) .
Accor di ngl y, nei t her Vi r gi ni a’ s f eder al i sm- based i nt er est i n
def i ni ng mar r i age nor our r espect f or t he democr at i c pr ocess
t hat codi f i ed t hat def i ni t i on can excuse t he Vi r gi ni a Mar r i age
Laws’ i nf r i ngement of t he r i ght t o mar r y.

2. Hi st or y and Tr adi t i on
The Pr oponent s al so poi nt t o t he “hi st or y and t r adi t i on” of
opposi t e- sex mar r i age as a compel l i ng i nt er est t hat suppor t s t he
Vi r gi ni a Mar r i age Laws. The Supr eme Cour t has made i t cl ear
t hat , even under r at i onal basi s r evi ew, t he “[ a] nci ent l i neage
of a l egal concept does not gi ve i t i mmuni t y f r om at t ack. ”
Hel l er v. Doe ex r el . Doe, 509 U. S. 312, 326 ( 1993) . The
cl osel y l i nked i nt er est of pr omot i ng mor al pr i nci pl es i s
si mi l ar l y i nf i r m i n l i ght of Lawr ence: “t he f act t hat t he
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gover ni ng maj or i t y i n a St at e has t r adi t i onal l y vi ewed a
par t i cul ar pr act i ce as i mmor al i s not a suf f i ci ent r eason f or
uphol di ng a l aw pr ohi bi t i ng t he pr act i ce; nei t her hi st or y nor
t r adi t i on coul d save a l aw pr ohi bi t i ng mi scegenat i on f r om
const i t ut i onal at t ack. ” 539 U. S. at 577- 78 ( quot i ng Bower s v.
Har dwi ck, 478 U. S. 186, 216 ( 1986) ( St evens, J . , di ssent i ng) )
( i nt er nal quot at i on mar ks omi t t ed) ; see al so i d. at 601 ( Scal i a,
J . , di ssent i ng) ( “But ‘ pr eser vi ng t he t r adi t i onal i nst i t ut i on of
mar r i age’ i s j ust a ki nder way of descr i bi ng t he St at e’ s mor al
di sappr oval of same- sex coupl es. ”) . Pr eser vi ng t he hi st or i cal
and t r adi t i onal st at us quo i s t her ef or e not a compel l i ng
i nt er est t hat j ust i f i es t he Vi r gi ni a Mar r i age Laws.

3. Saf eguar di ng t he I nst i t ut i on of Mar r i age
I n addi t i on t o ar gui ng t hat hi st or y and t r adi t i on ar e
compel l i ng i nt er est s i n t hei r own r i ght s, t he Pr oponent s war n
t hat devi at i ng f r om t he t r adi t i on of opposi t e- sex mar r i age wi l l
dest abi l i ze t he i nst i t ut i on of mar r i age. The Pr oponent s suggest
t hat l egal i zi ng same- sex mar r i age wi l l sever t he l i nk bet ween
mar r i age and pr ocr eat i on: t hey ar gue t hat , i f same- sex coupl es—
who cannot pr ocr eat e nat ur al l y—ar e al l owed t o mar r y, t he st at e
wi l l sanct i on t he i dea t hat mar r i age i s a vehi cl e f or adul t s’
emot i onal f ul f i l l ment , not si mpl y a f r amewor k f or par ent hood.
Accor di ng t o t he Pr oponent s, i f adul t s ar e t he f ocal poi nt of
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mar r i age, “t hen no l ogi cal gr ounds r ei nf or ce st abi l i zi ng nor ms
l i ke sexual excl usi vi t y, per manence, and monogamy, ” whi ch exi st
t o benef i t chi l dr en.
We r ecogni ze t hat , i n some cases, we owe “subst ant i al
def er ence t o t he pr edi ct i ve j udgment s” of t he Vi r gi ni a Gener al
Assembl y, f or whom t he Pr oponent s pur por t t o speak. Tur ner
Br oad. Sys. , I nc. v. FCC, 520 U. S. 180, 195 ( 1997) . However ,
even i f we vi ew t he Pr oponent s’ t heor i es t hr ough r ose- col or ed
gl asses, we concl ude t hat t hey ar e unf ounded f or t wo key
r easons. Fi r st , t he Supr eme Cour t r ej ect ed t he vi ew t hat
mar r i age i s about onl y pr ocr eat i on i n Gr i swol d v. Connect i cut ,
i n whi ch i t uphel d mar r i ed coupl es’ r i ght not t o pr ocr eat e and
ar t i cul at ed a vi ew of mar r i age t hat has not hi ng t o do wi t h
chi l dr en:
Mar r i age i s a comi ng t oget her f or bet t er or f or wor se,
hopef ul l y endur i ng, and i nt i mat e t o t he degr ee of
bei ng sacr ed. I t i s an associ at i on t hat pr omot es a way
of l i f e, not causes; a har mony i n l i vi ng, not
pol i t i cal f ai t hs; a bi l at er al l oyal t y, not commer ci al
or soci al pr oj ect s. Yet i t i s an associ at i on f or as
nobl e a pur pose as any i nvol ved i n our pr i or
deci si ons.

381 U. S. at 485- 86; see al so Tur ner , 482 U. S. at 95- 96
( descr i bi ng many non- pr ocr eat i ve pur poses of mar r i age) . The
f act t hat mar r i age’ s st abi l i zi ng nor ms have endur ed i n t he f i ve
decades si nce t he Supr eme Cour t made t hi s pr onouncement weakens
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t he ar gument t hat coupl es r emai n i n monogamous mar r i ages onl y
f or t he sake of t hei r of f spr i ng.
Second, t he pr i mar y suppor t t hat t he Pr oponent s of f er f or
t hei r t heor y i s t he l egacy of a whol l y unr el at ed l egal change t o
mar r i age: no- f aul t di vor ce. Al t hough no- f aul t di vor ce
cer t ai nl y al t er ed t he r eal i t i es of mar r i ed l i f e by maki ng i t
easi er f or coupl es t o end t hei r r el at i onshi ps, we have no r eason
t o t hi nk t hat l egal i zi ng same- sex mar r i age wi l l have a si mi l ar
dest abi l i zi ng ef f ect . I n f act , i t i s mor e l ogi cal t o t hi nk t hat
same- sex coupl es want access t o mar r i age so t hat t hey can t ake
advant age of i t s hal l mar ks, i ncl udi ng f ai t hf ul ness and
per manence, and t hat al l owi ng l ovi ng, commi t t ed same- sex coupl es
t o mar r y and r ecogni zi ng t hei r out - of - st at e mar r i ages wi l l
st r engt hen t he i nst i t ut i on of mar r i age. We t her ef or e r ej ect t he
Pr oponent s’ concer ns.

4. Responsi bl e Pr ocr eat i on
Next , t he Pr oponent s cont end t hat t he Vi r gi ni a Mar r i age
Laws’ di f f er ent i at i on bet ween opposi t e- sex and same- sex coupl es
st ems f r om t he f act t hat uni nt ended pr egnanci es cannot r esul t
f r om same- sex uni ons. By sanct i oni ng onl y opposi t e- sex
mar r i ages, t he Vi r gi ni a Mar r i age Laws “pr ovi d[ e] st abi l i t y t o
t he t ypes of r el at i onshi ps t hat r esul t i n unpl anned pr egnanci es,
t her eby avoi di ng or di mi ni shi ng t he negat i ve out comes of t en
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associ at ed wi t h uni nt ended chi l dr en. ” The Pr oponent s al l ege
t hat chi l dr en bor n t o unwed par ent s f ace a “si gni f i cant r i sk” of
bei ng r ai sed i n unst abl e f ami l i es, whi ch i s har mf ul t o t hei r
devel opment . Vi r gi ni a, “of cour se, has a dut y of t he hi ghest
or der t o pr ot ect t he i nt er est s of mi nor chi l dr en, par t i cul ar l y
t hose of t ender year s. ” Pal mor e v. Si dot i , 466 U. S. 429, 433
( 1984) . However , t he Vi r gi ni a Mar r i age Laws ar e not
appr opr i at el y t ai l or ed t o f ur t her t hi s i nt er est .
I f Vi r gi ni a sought t o ensur e r esponsi bl e pr ocr eat i on vi a
t he Vi r gi ni a Mar r i age Laws, t he l aws ar e woef ul l y
under i ncl usi ve. Same- sex coupl es ar e not t he onl y cat egor y of
coupl es who cannot r epr oduce acci dent al l y. For exampl e,
opposi t e- sex coupl es cannot pr ocr eat e uni nt ent i onal l y i f t hey
i ncl ude a post - menopausal woman or an i ndi vi dual wi t h a medi cal
condi t i on t hat pr event s unassi st ed concept i on.
The Pr oponent s at t empt t o downpl ay t he si mi l ar i t y bet ween
same- sex coupl es and i nf er t i l e opposi t e- sex coupl es i n t hr ee
ways. Fi r st , t hey poi nt out t hat st er i l e i ndi vi dual s coul d
r emedy t hei r f er t i l i t y t hr ough f ut ur e medi cal advances. Thi s
pot ent i al i t y, however , does not expl ai n why Vi r gi ni a shoul d
t r eat same- sex and i nf er t i l e opposi t e- sex coupl es di f f er ent l y
dur i ng t he cour se of t he l at t er gr oup’ s i nf er t i l i t y. Second,
t he Pr oponent s posi t t hat , even i f one member of a man- woman
coupl e i s st er i l e, t he ot her member may not be. They suggest
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t hat , wi t hout mar r i age’ s monogamy mandat e, t hi s f er t i l e
i ndi vi dual i s mor e l i kel y t o have an uni nt ended chi l d wi t h a
t hi r d par t y. They cont end t hat , due t o t hi s possi bi l i t y, even
opposi t e- sex coupl es who cannot pr ocr eat e need mar r i age t o
channel t hei r pr ocr eat i ve act i vi t y i n a way t hat same- sex
coupl es do not . The Pr oponent s’ ar gument assumes t hat
i ndi vi dual s i n same- sex r el at i onshi ps never have opposi t e- sex
sexual par t ner s, whi ch i s si mpl y not t he case. Thi r d, t he
Pr oponent s i mpl y t hat , by mar r yi ng, i nf er t i l e opposi t e- sex
coupl es set a posi t i ve exampl e f or coupl es who can have
uni nt ended chi l dr en, t her eby encour agi ng t hem t o mar r y. We see
no r eason why commi t t ed same- sex coupl es cannot ser ve as si mi l ar
r ol e model s. We t her ef or e r ej ect t he Pr oponent s’ at t empt s t o
di f f er ent i at e same- sex coupl es f r om ot her coupl es who cannot
pr ocr eat e acci dent al l y. Because same- sex coupl es and i nf er t i l e
opposi t e- sex coupl es ar e si mi l ar l y si t uat ed, t he Equal
Pr ot ect i on Cl ause counsel s agai nst t r eat i ng t hese gr oups
di f f er ent l y. See Ci t y of Cl ebur ne, 473 U. S. at 439 ( expl ai ni ng
t hat t he Equal Pr ot ect i on Cl ause “i s essent i al l y a di r ect i on
t hat al l per sons si mi l ar l y si t uat ed shoul d be t r eat ed al i ke”) .
Due t o t he Vi r gi ni a Mar r i age Laws’ under i ncl usi vi t y, t hi s
case r esembl es Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Cent er , I nc.
I n Ci t y of Cl ebur ne, t he Supr eme Cour t st r uck down a ci t y l aw
t hat r equi r ed gr oup homes f or t he i nt el l ect ual l y di sabl ed t o
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obt ai n a speci al use per mi t . I d. at 447- 50. The ci t y di d not
i mpose t he same r equi r ement on si mi l ar st r uct ur es, such as
apar t ment compl exes and nur si ng homes. I d. at 447. The Cour t
det er mi ned t hat t he per mi t r equi r ement was so under i ncl usi ve
t hat t he ci t y’ s mot i vat i on must have “r est [ ed] on an i r r at i onal
pr ej udi ce, ” r ender i ng t he l aw unconst i t ut i onal . I d. at 450. I n
l i ght of t he Vi r gi ni a Mar r i age Laws’ ext r eme under i ncl usi vi t y,
we ar e f or ced t o dr aw t he same concl usi on i n t hi s case.
The Pr oponent s’ r esponsi bl e pr ocr eat i on ar gument f al t er s
f or anot her r eason as wel l . St r i ct scr ut i ny r equi r es t hat a
st at e’ s means f ur t her i t s compel l i ng i nt er est . See Shaw, 517
U. S. at 915 ( “Al t hough we have not al ways pr ovi ded pr eci se
gui dance on how cl osel y t he means . . . must ser ve t he end ( t he
j ust i f i cat i on or compel l i ng i nt er est ) , we have al ways expect ed
t hat t he l egi sl at i ve act i on woul d subst ant i al l y addr ess, i f not
achi eve, t he avowed pur pose. ”) . Pr ohi bi t i ng same- sex coupl es
f r om mar r yi ng and i gnor i ng t hei r out - of - st at e mar r i ages does not
ser ve Vi r gi ni a’ s goal of pr event i ng out - of - wedl ock bi r t hs.
Al t hough same- sex coupl es cannot pr ocr eat e acci dent al l y, t hey
can and do have chi l dr en vi a ot her met hods. Accor di ng t o an
ami cus br i ef f i l ed by Dr . Gar y J . Gat es, as of t he 2010 U. S.
Census, mor e t han 2500 same- sex coupl es wer e r ai si ng mor e t han
4000 chi l dr en under t he age of ei ght een i n Vi r gi ni a. The
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Vi r gi ni a Mar r i age Laws t her ef or e i ncr ease t he number of chi l dr en
r ai sed by unmar r i ed par ent s.
The Pr oponent s acknowl edge t hat same- sex coupl es become
par ent s. They cont end, however , t hat t he st at e has no i nt er est
i n channel i ng same- sex coupl es’ pr ocr eat i ve act i vi t i es i nt o
mar r i age because same- sex coupl es “br i ng chi l dr en i nt o t hei r
r el at i onshi p[ s] onl y t hr ough i nt ent i onal choi ce and pr e- pl anned
act i on. ” Accor di ngl y, “[ t ] hose coupl es nei t her advance nor
t hr eat en soci et y’ s publ i c pur pose f or mar r i age”—st abi l i zi ng
par ent al r el at i onshi ps f or t he benef i t of chi l dr en—“i n t he same
manner , or t o t he same degr ee, t hat sexual r el at i onshi ps bet ween
men and women do. ”
I n suppor t of t hi s ar gument , t he Pr oponent s i nvoke t he
Supr eme Cour t ’ s deci si on i n J ohnson v. Robi son, 415 U. S. 361
( 1974) . J ohnson concer ned educat i onal benef i t s t hat t he f eder al
gover nment gr ant ed t o mi l i t ar y vet er ans who ser ved on act i ve
dut y. I d. at 363. The gover nment pr ovi ded t hese benef i t s t o
encour age enl i st ment and make mi l i t ar y ser vi ce mor e pal at abl e t o
exi st i ng ser vi cemember s. I d. at 382- 83. A consci ent i ous
obj ect or —who r ef used t o ser ve i n t he mi l i t ar y f or r el i gi ous
r easons—br ought sui t , cont endi ng t hat t he gover nment act ed
unconst i t ut i onal l y by gr ant i ng benef i t s t o vet er ans but not
consci ent i ous obj ect or s. I d. at 363- 64. The Cour t expl ai ned
t hat , “[ w] hen, as i n t hi s case, t he i ncl usi on of one gr oup
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pr omot es a l egi t i mat e gover nment al pur pose, and t he addi t i on of
ot her gr oups woul d not , we cannot say t hat t he st at ut e’ s
cl assi f i cat i on of benef i ci ar i es and nonbenef i ci ar i es i s
i nvi di ousl y di scr i mi nat or y. ” I d. at 383. Because of f er i ng
educat i onal benef i t s t o consci ent i ous obj ect or s woul d not
i ncent i vi ze mi l i t ar y ser vi ce, t he f eder al gover nment ’ s l i ne-
dr awi ng was const i t ut i onal . J ohnson, 415 U. S. at 382- 83. The
Pr oponent s cl ai m t hat t r eat i ng opposi t e- sex coupl es di f f er ent l y
f r om same- sex coupl es i s equal l y j ust i f i ed because t he t wo
gr oups ar e not si mi l ar l y si t uat ed wi t h r espect t o t hei r
pr ocr eat i ve pot ent i al .
J ohnson appl i ed r at i onal basi s r evi ew, i d. at 374- 75, so we
st r ongl y doubt i t s appl i cabi l i t y t o our st r i ct scr ut i ny
anal ysi s. I n any event , we can easi l y di st i ngui sh J ohnson f r om
t he i nst ant case. I n J ohnson, of f er i ng educat i onal benef i t s t o
vet er ans who ser ved on act i ve dut y pr omot ed t he gover nment ’ s
goal of maki ng mi l i t ar y ser vi ce mor e at t r act i ve. Ext endi ng
t hose benef i t s t o consci ent i ous obj ect or s, whose r el i gi ous
bel i ef s pr ecl uded mi l i t ar y ser vi ce, di d not f ur t her t hat
obj ect i ve. By cont r ast , a st abl e mar i t al r el at i onshi p i s
at t r act i ve r egar dl ess of a coupl e’ s pr ocr eat i ve abi l i t y.
Al l owi ng i nf er t i l e opposi t e- sex coupl es t o mar r y does not hi ng t o
f ur t her t he gover nment ’ s goal of channel i ng pr ocr eat i ve conduct
i nt o mar r i age. Thus, excl udi ng same- sex coupl es f r om mar r i age
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due t o t hei r i nabi l i t y t o have uni nt ended chi l dr en makes l i t t l e
sense. J ohnson t her ef or e does not al t er our concl usi on t hat
bar r i ng same- sex coupl es’ access t o mar r i age does not hi ng t o
f ur t her Vi r gi ni a’ s i nt er est i n r esponsi bl e pr ocr eat i on.

5. Opt i mal Chi l dr ear i ng
We now shi f t t o di scussi ng t he mer i t of t he f i nal
compel l i ng i nt er est t hat t he Pr oponent s i nvoke: opt i mal
chi l dr ear i ng. The Pr oponent s aver t hat “chi l dr en devel op best
when r ear ed by t hei r mar r i ed bi ol ogi cal par ent s i n a st abl e
f ami l y uni t . ” They dwel l on t he i mpor t ance of “gender -
di f f er ent i at ed par ent i ng” and ar gue t hat sanct i oni ng same- sex
mar r i age wi l l depr i ve chi l dr en of t he benef i t of bei ng r ai sed by
a mot her and a f at her , who have “di st i nct par ent i ng st yl es. ” I n
essence, t he Pr oponent s ar gue t hat t he Vi r gi ni a Mar r i age Laws
saf eguar d chi l dr en by pr event i ng same- sex coupl es f r om mar r yi ng
and st ar t i ng i nf er i or f ami l i es.
The Opponent s and t hei r ami ci cast ser i ous doubt on t he
accur acy of t he Pr oponent s’ cont ent i ons. For exampl e, as t he
Amer i can Psychol ogi cal Associ at i on, Amer i can Academy of
Pedi at r i cs, Amer i can Psychi at r i c Associ at i on, Nat i onal
Associ at i on of Soci al Wor ker s, and Vi r gi ni a Psychol ogi cal
Associ at i on ( col l ect i vel y, t he APA) expl ai n i n t hei r ami cus
br i ef , “t her e i s no sci ent i f i c evi dence t hat par ent i ng
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ef f ect i veness i s r el at ed t o par ent al sexual or i ent at i on, ” and
“t he same f act or s”—i ncl udi ng f ami l y st abi l i t y, economi c
r esour ces, and t he qual i t y of par ent - chi l d r el at i onshi ps—“ar e
l i nked t o chi l dr en’ s posi t i ve devel opment , whet her t hey ar e
r ai sed by het er osexual , l esbi an, or gay par ent s. ” Accor di ng t o
t he APA, “t he par ent i ng abi l i t i es of gay men and l esbi ans—and
t he posi t i ve out comes f or t hei r chi l dr en—ar e not ar eas wher e
most cr edi bl e sci ent i f i c r esear cher s di sagr ee, ” and t he cont r ar y
st udi es t hat t he Pr oponent s ci t e “do not r ef l ect t he cur r ent
st at e of sci ent i f i c knowl edge. ” See al so DeBoer , 973 F. Supp.
2d at 760- 68 ( maki ng f act ual f i ndi ngs and r eachi ng t he same
concl usi on) . I n f act , t he APA expl ai ns t hat , by pr event i ng
same- sex coupl es f r om mar r yi ng, t he Vi r gi ni a Mar r i age Laws
act ual l y har m t he chi l dr en of same- sex coupl es by st i gmat i zi ng
t hei r f ami l i es and r obbi ng t hem of t he st abi l i t y, economi c
secur i t y, and t oget her ness t hat mar r i age f ost er s. The Supr eme
Cour t r eached a si mi l ar concl usi on i n Wi ndsor , i n whi ch i t
obser ved t hat f ai l i ng t o r ecogni ze same- sex mar r i ages
“humi l i at es t ens of t housands of chi l dr en now bei ng r ai sed by
same- sex coupl es” and “makes i t even mor e di f f i cul t f or t he
chi l dr en t o under st and t he i nt egr i t y and cl oseness of t hei r own
f ami l y and i t s concor d wi t h ot her f ami l i es i n t hei r communi t y
and i n t hei r dai l y l i ves. ” 133 S. Ct . at 2694.
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We f i nd t he ar gument s t hat t he Opponent s and t hei r ami ci
make on t hi s i ssue ext r emel y per suasi ve. However , we need not
r esol ve t hi s di sput e because t he Pr oponent s’ opt i mal
chi l dr ear i ng ar gument f al t er s f or at l east t wo ot her r easons.
Fi r st , under hei ght ened scr ut i ny, st at es cannot suppor t a l aw
usi ng “over br oad gener al i zat i ons about t he di f f er ent t al ent s,
capaci t i es, or pr ef er ences of ” t he gr oups i n quest i on. Uni t ed
St at es v. Vi r gi ni a, 518 U. S. 515, 533- 34 ( 1996) ( r ej ect i ng
“i nher ent di f f er ences” bet ween men and women as a j ust i f i cat i on
f or excl udi ng al l women f r om a t r adi t i onal l y al l - mal e mi l i t ar y
col l ege) ; see al so St anl ey v. I l l i noi s, 405 U. S. 645, 656- 58
( 1972) ( hol di ng t hat a st at e coul d not pr esume t hat unmar r i ed
f at her s wer e unf i t par ent s) . The Pr oponent s’ st at ement s
r egar di ng same- sex coupl es’ par ent i ng abi l i t y cer t ai nl y qual i f y
as over br oad gener al i zat i ons. Second, as we expl ai n above,
st r i ct scr ut i ny r equi r es congr ui t y bet ween a l aw’ s means and i t s
end. Thi s congr ui t y i s absent her e. Ther e i s absol ut el y no
r eason t o suspect t hat pr ohi bi t i ng same- sex coupl es f r om
mar r yi ng and r ef usi ng t o r ecogni ze t hei r out - of - st at e mar r i ages
wi l l cause same- sex coupl es t o r ai se f ewer chi l dr en or i mpel
mar r i ed opposi t e- sex coupl es t o r ai se mor e chi l dr en. The
Vi r gi ni a Mar r i age Laws t her ef or e do not f ur t her Vi r gi ni a’ s
i nt er est i n channel i ng chi l dr en i nt o opt i mal f ami l i es, even i f
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we wer e t o accept t he dubi ous pr oposi t i on t hat same- sex coupl es
ar e l ess capabl e par ent s.
Because t he Pr oponent s’ ar gument s ar e based on over br oad
gener al i zat i ons about same- sex par ent s, and because t her e i s no
l i nk bet ween banni ng same- sex mar r i age and pr omot i ng opt i mal
chi l dr ear i ng, t hi s ai m cannot suppor t t he Vi r gi ni a Mar r i age
Laws. Al l of t he Pr oponent s’ j ust i f i cat i ons f or t he Vi r gi ni a
Mar r i age Laws t her ef or e f ai l , and t he l aws cannot sur vi ve st r i ct
scr ut i ny.

V.
For t he f or egoi ng r easons, we concl ude t hat t he Vi r gi ni a
Mar r i age Laws vi ol at e t he Due Pr ocess and Equal Pr ot ect i on
Cl auses of t he Four t eent h Amendment t o t he ext ent t hat t hey
pr event same- sex coupl es f r om mar r yi ng and pr ohi bi t Vi r gi ni a
f r om r ecogni zi ng same- sex coupl es’ l awf ul out - of - st at e
mar r i ages. We t her ef or e af f i r m t he di st r i ct cour t ’ s gr ant of
t he Pl ai nt i f f s’ mot i on f or summar y j udgment and i t s deci si on t o
enj oi n enf or cement of t he Vi r gi ni a Mar r i age Laws.
10


10
Because we ar e abl e t o r esol ve t he mer i t s of t he
Opponent s’ cl ai ms, we need not consi der t hei r al t er nat i ve
r equest f or a pr el i mi nar y i nj unct i on. We assume t hat t he
di st r i ct cour t ’ s deci si on t o enj oi n enf or cement of t he Vi r gi ni a
Mar r i age Laws encompassed a per manent i nj unct i on, whi ch t he
Pl ai nt i f f s r equest ed i n connect i on wi t h t hei r mot i on f or summar y
j udgment .
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We r ecogni ze t hat same- sex mar r i age makes some peopl e
deepl y uncomf or t abl e. However , i ner t i a and appr ehensi on ar e
not l egi t i mat e bases f or denyi ng same- sex coupl es due pr ocess
and equal pr ot ect i on of t he l aws. Ci vi l mar r i age i s one of t he
cor ner st ones of our way of l i f e. I t al l ows i ndi vi dual s t o
cel ebr at e and publ i cl y decl ar e t hei r i nt ent i ons t o f or m l i f el ong
par t ner shi ps, whi ch pr ovi de unpar al l el ed i nt i macy,
compani onshi p, emot i onal suppor t , and secur i t y. The choi ce of
whet her and whomt o mar r y i s an i nt ensel y per sonal deci si on t hat
al t er s t he cour se of an i ndi vi dual ’ s l i f e. Denyi ng same- sex
coupl es t hi s choi ce pr ohi bi t s t hem f r om par t i ci pat i ng f ul l y i n
our soci et y, whi ch i s pr eci sel y t he t ype of segr egat i on t hat t he
Four t eent h Amendment cannot count enance.
AFFI RMED
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NI EMEYER, Ci r cui t J udge, di ssent i ng:
To be cl ear , t hi s case i s not about whet her cour t s f avor or
di sf avor same- sex mar r i age, or whet her St at es r ecogni zi ng or
decl i ni ng t o r ecogni ze same- sex mar r i age have made good pol i cy
deci si ons. I t i s much nar r ower . I t i s about whet her a St at e’ s
deci si on not t o r ecogni ze same- sex mar r i age vi ol at es t he
Four t eent h Amendment of t he U. S. Const i t ut i on. Thus, t he
j udi ci al r esponse must be l i mi t ed t o an anal ysi s appl yi ng
est abl i shed const i t ut i onal pr i nci pl es.
The Commonweal t h of Vi r gi ni a has al ways r ecogni zed t hat
“mar r i age” i s based on t he “mut ual agr eement of a man and a
woman t o mar r y each ot her , ” Bur ke v. Shaver , 23 S. E. 749, 749
( Va. 1895) , and t hat a mar r i age’ s pur poses i ncl ude “est abl i shi ng
a f ami l y, t he cont i nuance of t he r ace, t he pr opagat i on of
chi l dr en, and t he gener al good of soci et y, ” Al exander v.
Kuykendal l , 63 S. E. 2d 746, 748 ( Va. 1951) . I n r ecent year s, i t
codi f i ed t hat under st andi ng i n sever al st at ut es, whi ch al so
expl i ci t l y excl ude f r om t he def i ni t i on of “mar r i age” t he uni on
of t wo men or t wo women. Mor eover , i n 2006 t he peopl e of
Vi r gi ni a amended t he Commonweal t h’ s Const i t ut i on t o def i ne
mar r i age as onl y bet ween “one man and one woman. ” Va. Const .
ar t . I , § 15- A.
The pl ai nt i f f s, who ar e i n l ong- t er m same- sex
r el at i onshi ps, ar e chal l engi ng t he const i t ut i onal i t y of
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Vi r gi ni a’ s mar r i age l aws under t he Due Pr ocess and Equal
Pr ot ect i on Cl auses of t he U. S. Const i t ut i on. The di st r i ct cour t
sust ai ned t hei r chal l enge, concl udi ng t hat t he pl ai nt i f f s have a
f undament al r i ght t o mar r y each ot her under t he Due Pr ocess
Cl ause of t he Four t eent h Amendment and t her ef or e t hat any
r egul at i on of t hat r i ght i s subj ect t o st r i ct scr ut i ny.
Concl udi ng t hat Vi r gi ni a’ s def i ni t i on of mar r i age f ai l ed even
“t o di spl ay a r at i onal r el at i onshi p t o a l egi t i mat e pur pose and
so must be vi ewed as const i t ut i onal l y i nf i r m, ” t he cour t st r uck
down Vi r gi ni a’ s mar r i age l aws as unconst i t ut i onal and enj oi ned
t hei r enf or cement . Bost i c v. Rai ney, 970 F. Supp. 2d 456, 482
( E. D. Va. 2014) .
The maj or i t y agr ees. I t concl udes t hat t he f undament al
r i ght t o mar r i age i ncl udes a r i ght t o same- sex mar r i age and t hat
t her ef or e Vi r gi ni a’ s mar r i age l aws must be r evi ewed under st r i ct
scr ut i ny. I t hol ds t hat Vi r gi ni a has f ai l ed t o advance a
compel l i ng st at e i nt er est j ust i f yi ng i t s def i ni t i on of mar r i age
as bet ween onl y a man and a woman. I n r eachi ng t hi s concl usi on,
however , t he maj or i t y has f ai l ed t o conduct t he necessar y
const i t ut i onal anal ysi s. Rat her , i t has si mpl y decl ar ed
syl l ogi st i cal l y t hat because “mar r i age” i s a f undament al r i ght
pr ot ect ed by t he Due Pr ocess Cl ause and “same- sex mar r i age” i s a
f or m of mar r i age, Vi r gi ni a’ s l aws decl i ni ng t o r ecogni ze same-
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sex mar r i age i nf r i nge t he f undament al r i ght t o mar r i age and ar e
t her ef or e unconst i t ut i onal .
St at ed mor e par t i cul ar l y, t he maj or i t y’ s appr oach begi ns
wi t h t he par t i es’ agr eement t hat “mar r i age” i s a f undament al
r i ght . Ant e at 40. Fr om t her e, t he maj or i t y moves t o t he
pr oposi t i on t hat “t he r i ght t o mar r y i s an expansi ve l i ber t y
i nt er est , ” ant e at 41, “t hat i s not ci r cumscr i bed based on t he
char act er i st i cs of t he i ndi vi dual s seeki ng t o exer ci se t hat
r i ght , ” ant e at 42- 43. For suppor t , i t not es t hat t he Supr eme
Cour t has st r uck down st at e r est r i ct i ons pr ohi bi t i ng i nt er r aci al
mar r i age, see Lovi ng v. Vi r gi ni a, 388 U. S. 1 ( 1967) ; pr ohi bi t i ng
pr i son i nmat es f r om mar r yi ng wi t hout speci al appr oval , see
Tur ner v. Saf l ey, 482 U. S. 78 ( 1987) ; and pr ohi bi t i ng per sons
owi ng chi l d suppor t f r om mar r yi ng, see Zabl ocki v. Redhai l , 434
U. S. 374 ( 1978) . I t t hen decl ar es, i pse di xi t , t hat “t he
f undament al r i ght t o mar r y encompasses t he r i ght t o same- sex
mar r i age” and i s t hus pr ot ect ed by t he subst ant i ve component of
t he Due Pr ocess Cl ause. Ant e at 41. I n r eachi ng t hi s
concl usi on, t he maj or i t y “decl i ne[ s] t he Pr oponent s’ i nvi t at i on
t o char act er i ze t he r i ght at i ssue i n t hi s case as t he r i ght t o
same- sex mar r i age r at her t han si mpl y t he r i ght t o mar r y. ” Ant e
at 44. And i n doi ng so, i t expl i ci t l y bypasses t he r el evant
const i t ut i onal anal ysi s r equi r ed by Washi ngt on v. Gl ucksber g,
521 U. S. 702 ( 1997) , st at i ng t hat a Gl ucksber g anal ysi s i s not
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necessar y because no new f undament al r i ght i s bei ng r ecogni zed.
Ant e at 41- 42.
Thi s anal ysi s i s f undament al l y f l awed because i t f ai l s t o
t ake i nt o account t hat t he “mar r i age” t hat has l ong been
r ecogni zed by t he Supr eme Cour t as a f undament al r i ght i s
di st i nct f r om t he newl y pr oposed r el at i onshi p of a “same- sex
mar r i age. ” And t hi s f ai l ur e i s even mor e pr onounced by t he
maj or i t y’ s acknowl edgment t hat same- sex mar r i age i s a new not i on
t hat has not been r ecogni zed “f or most of our count r y’ s
hi st or y. ” Ant e at 41. Mor eover , t he maj or i t y f ai l s t o expl ai n
how t hi s new not i on became i ncor por at ed i nt o t he t r adi t i onal
def i ni t i on of mar r i age except by l i ngui st i c mani pul at i on. Thus,
t he maj or i t y never asks t he quest i on necessar y t o f i ndi ng a
f undament al r i ght - - whet her same- sex mar r i age i s a r i ght t hat
i s “deepl y r oot ed i n t hi s Nat i on’ s hi st or y and t r adi t i on” and
“i mpl i ci t i n t he concept of or der ed l i ber t y, such t hat nei t her
l i ber t y nor j ust i ce woul d exi st i f [ i t was] sacr i f i ced. ”
Gl ucksber g, 521 U. S. at 721 ( quot i ng Moor e v. East Cl evel and,
431 U. S. 494, 503 ( 1977) ( pl ur al i t y opi ni on) ; Pal ko v.
Connect i cut , 302 U. S. 319, 325- 26 ( 1937) ) ( i nt er nal quot at i on
mar ks omi t t ed) .
At bot t om, i n hol di ng t hat same- sex mar r i age i s encompassed
by t he t r adi t i onal r i ght t o mar r y, t he maj or i t y avoi ds t he
necessar y const i t ut i onal anal ysi s, concl udi ng si mpl y and br oadl y
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t hat t he f undament al “r i ght t o mar r y” - - by ever yone and t o
anyone - - may not be i nf r i nged. And i t does not ant i ci pat e or
addr ess t he pr obl ems t hat t hi s appr oach causes, f ai l i ng t o
expl ai n, f or exampl e, why t hi s br oad r i ght t o mar r y, as t he
maj or i t y def i nes i t , does not al so encompass t he “r i ght ” of a
f at her t o mar r y hi s daught er or t he “r i ght ” of any per son t o
mar r y mul t i pl e par t ner s.
I f t he maj or i t y wer e t o r ecogni ze and addr ess t he
di st i nct i on bet ween t he t wo r el at i onshi ps - - t he t r adi t i onal one
and t he new one - - as i t must , i t woul d si mpl y be unabl e t o
r each t he concl usi on t hat i t has r eached.
I r espect f ul l y submi t t hat , f or t he r easons t hat f ol l ow,
Vi r gi ni a was wel l wi t hi n i t s const i t ut i onal aut hor i t y t o adher e
t o i t s t r adi t i onal def i ni t i on of mar r i age as t he uni on of a man
and a woman and t o excl ude f r omt hat def i ni t i on t he uni on of t wo
men or t wo women. I woul d al so agr ee t hat t he U. S. Const i t ut i on
does not pr ohi bi t a St at e f r om def i ni ng mar r i age t o i ncl ude
same- sex mar r i age, as many St at es have done. Accor di ngl y, I
woul d r ever se t he j udgment of t he di st r i ct cour t and uphol d
Vi r gi ni a’ s mar r i age l aws.

I

As t he maj or i t y has obser ved, st at e r ecogni t i on of same- sex
mar r i age i s a new phenomenon. I t s hi st or y began i n t he ear l y
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2000s wi t h t he r ecogni t i on i n some St at es of ci vi l uni ons. See,
e. g. , Vt . St at . Ann. t i t . 15, §§ 1201- 1202 ( 2000) ; D. C. Code §
32- 701 ( 1992) ( ef f ect i ve i n 2002) ; Cal . Fam. Code §§ 297- 298
( 2003) ; N. J . St at . Ann. § 26: 8A- 2 ( 2003) ; Conn. Gen. St at . Ann.
§ 46b- 38nn ( 2006) , i nval i dat ed by Ker r i gan v. Comm’ r of Pub.
Heal t h, 957 A. 2d 407 ( Conn. 2008) . And t he not i on of same- sex
mar r i age i t sel f f i r st gai ned t r act i on i n 2003, when t he
Massachuset t s Supr eme J udi ci al Cour t hel d t hat t he
Commonweal t h’ s pr ohi bi t i on on i ssui ng mar r i age l i censes t o same-
sex coupl es vi ol at ed t he St at e’ s Const i t ut i on - - t he f i r st
deci si on hol di ng t hat same- sex coupl es had a r i ght t o mar r y.
See Goodr i dge v. Dep’ t of Pub. Heal t h, 798 N. E. 2d 941, 968
( Mass. 2003) . I n 2009, Ver mont became t he f i r st St at e t o enact
l egi sl at i on r ecogni zi ng same- sex mar r i age, and, si nce t hen, 11
ot her St at es and t he Di st r i ct of Col umbi a have al so done so.
See Conn. Gen. St at . §§ 46b- 20 t o 46b- 20a; Del . Code Ann. t i t .
13, § 101; D. C. Code § 46- 401; Haw. Rev. St at . § 572- 1; 750 I l l .
Comp. St at . 5/ 201; Me. Rev. St at . t i t . 19- A, § 650- A; Md. Code
Ann. , Fam. Law §§ 2- 201 t o 2- 202; Mi nn. St at . Ann. §§ 517. 01 t o
517. 03; N. H. Rev. St at . Ann. §§ 457: 1- a t o 457: 2; N. Y. Dom. Rel .
Law § 10- a; R. I . Gen. Laws § 15- 1- 1 et seq. ; Vt . St at . Ann. t i t .
15, § 8; Wash. Rev. Code §§ 26. 04. 010 t o 26. 04. 020. Mor eover ,
seven ot her St at es cur r ent l y al l ow same- sex mar r i age as a r esul t
of cour t r ul i ngs. See Hol l i ngswor t h v. Per r y, 133 S. Ct . 2652
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( 2013) ; Var num v. Br i en, 763 N. W. 2d 862 ( I owa 2009) ; Goodr i dge,
798 N. E. 2d 941; Gar den St at e Equal i t y v. Dow, 79 A. 3d 1036 ( N. J .
2013) ; Gr i ego v. Ol i ver , 316 P. 3d 865 ( N. M. 2013) ; Gei ger v.
Ki t zhaber , ___ F. Supp. 2d ___, No. 6: 13- CV- 01834- MC, 2014 WL
2054264 ( D. Or . May 19, 2014) ; Whi t ewood v. Wol f , ___ F. Supp.
2d ___, No. 1: 13- CV- 1861, 2014 WL 2058105 ( M. D. Pa. May 20,
2014) . Thi s i s i ndeed a r ecent phenomenon.
Vi r gi ni a onl y r ecogni zes mar r i age as bet ween one man and
one woman, and, l i ke a maj or i t y of St at es, i t has codi f i ed t hi s
vi ew. See Va. Code Ann. § 20- 45. 2 ( pr ohi bi t i ng same- sex
mar r i age and decl i ni ng t o r ecogni ze same- sex mar r i ages conduct ed
i n ot her St at es) ; i d. § 20- 45. 3 ( pr ohi bi t i ng ci vi l uni ons and
si mi l ar ar r angement s bet ween per sons of t he same sex) . The bi l l
or i gi nal l y pr oposi ng what woul d become § 20- 45. 3 not ed t he basi s
f or Vi r gi ni a’ s l egi sl at i ve deci si on:
[ H] uman mar r i age i s a consummat ed t wo i n one communi on
of mal e and f emal e per sons made possi bl e by sexual
di f f er ences whi ch ar e r epr oduct i ve i n t ype, whet her or
not t hey ar e r epr oduct i ve i n ef f ect or mot i vat i on.
Thi s pr esent r el at i onshi p r ecogni zes t he equal i t y of
mal e and f emal e per sons, and ant edat es r ecor ded
hi st or y.
Af f i r mat i on of Mar r i age Act , H. D. 751, 2004 Gen. Assembl y, Reg.
Sess. ( Va. 2004) . The bi l l pr edi ct ed t hat t he r ecogni t i on of
same- sex mar r i age woul d “r adi cal l y t r ansf or m t he i nst i t ut i on of
mar r i age wi t h ser i ous and har mf ul consequences t o t he soci al
or der . ” I d. Vi r gi ni a al so amended i t s Const i t ut i on i n 2006 t o
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def i ne mar r i age as onl y bet ween “one man and one woman” and t o
pr ohi bi t “a l egal st at us f or r el at i onshi ps of unmar r i ed
i ndi vi dual s t hat i nt ends t o appr oxi mat e t he desi gn, qual i t i es,
si gni f i cance, or ef f ect s of mar r i age. ” Va. Const . ar t . I , § 15-
A. The pl ai nt i f f s commenced t hi s act i on t o chal l enge t he
const i t ut i onal i t y of Vi r gi ni a’ s mar r i age l aws.
Pl ai nt i f f s Ti mot hy B. Bost i c and Tony C. London have l i ved
i n a commi t t ed same- sex r el at i onshi p si nce 1989 and have l i ved
i n Vi r gi ni a si nce 1991. The t wo desi r ed t o mar r y i n Vi r gi ni a,
and on J ul y 1, 2013, when t hey appl i ed f or a mar r i age l i cense at
t he of f i ce of t he Cl er k of t he Ci r cui t Cour t f or t he Ci t y of
Nor f ol k, t hey wer e deni ed a l i cense and t ol d t hat same- sex
coupl es ar e i nel i gi bl e t o mar r y i n Vi r gi ni a. I n t hei r compl ai nt
chal l engi ng Vi r gi ni a’ s mar r i age l aws, t hey al l eged t hat t hei r
i nabi l i t y t o mar r y has di sadvant aged t hem i n bot h economi c and
per sonal ways - - i t has pr event ed t hem f r om f i l i ng j oi nt t ax
r et ur ns, kept t hem f r om shar i ng heal t h i nsur ance on a t ax- f r ee
basi s, and si gnal ed t hat t hey ar e “l ess t han” ot her coupl es i n
Vi r gi ni a.
Pl ai nt i f f s Car ol Schal l and Mar y Townl ey l i kewi se have
l i ved i n a commi t t ed same- sex r el at i onshi p si nce 1985 and have
l i ved i n Vi r gi ni a t hr oughout t hei r 29- year r el at i onshi p. I n
1998, Townl ey gave bi r t h t o a daught er , E. S. - T. , whomSchal l and
Townl ey have r ai sed t oget her , and i n 2008, t he t wo t r avel ed t o
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Cal i f or ni a wher e t hey wer e l awf ul l y mar r i ed. They al l eged i n
t hei r compl ai nt t hat because Vi r gi ni a does not r ecogni ze t hei r
mar r i age as val i d, t hey have been i nj ur ed i n sever al ways.
Schal l i s unabl e t o l egal l y adopt E. S. - T. , and t he t wo ar e
unabl e t o shar e heal t h i nsur ance on a t ax- f r ee basi s. The t wo
al so cl ai med t hat t hey and E. S. - T. have exper i enced st i gma as a
r esul t of Vi r gi ni a’ s nonr ecogni t i on of t hei r mar r i age.
The pl ai nt i f f s’ compl ai nt , f i l ed i n J ul y 2013, al l eged t hat
Vi r gi ni a’ s mar r i age l aws vi ol at e t hei r const i t ut i onal r i ght s
under t he Due Pr ocess and Equal Pr ot ect i on Cl auses of t he
Four t eent h Amendment . They named as def endant s Geor ge E.
Schaef er , I I I , Cl er k of Cour t f or t he Nor f ol k Ci r cui t Cour t , and
J anet M. Rai ney, t he St at e Regi st r ar of Vi t al Recor ds. A t hi r d
Vi r gi ni a of f i ci al , Mi chèl e B. McQui gg, Cl er k of Cour t f or t he
Pr i nce Wi l l i am Count y Ci r cui t Cour t , was per mi t t ed t o i nt er vene
as a def endant . As el ect ed ci r cui t cour t cl er ks, Schaef er and
McQui gg ar e r esponsi bl e f or i ssui ng i ndi vi dual mar r i age l i censes
i n t he l ocal i t i es i n whi ch t hey ser ve. And Rai ney, as t he St at e
Regi st r ar of Vi t al Recor ds, i s r esponsi bl e f or ensur i ng
compl i ance wi t h Vi r gi ni a’ s mar r i age l aws, i ncl udi ng t he l aws
chal l enged i n t hi s case.
Af t er t he par t i es f i l ed cr oss- mot i ons f or summar y j udgment ,
Vi r gi ni a under went a change i n admi ni st r at i ons, and t he newl y
el ect ed At t or ney Gener al of Vi r gi ni a, Mar k Her r i ng, f i l ed a
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not i ce of a change i n hi s of f i ce’ s l egal posi t i on on behal f of
hi s cl i ent , def endant J anet Rai ney. Hi s not i ce st at ed t hat
because, i n hi s vi ew, t he l aws at i ssue wer e unconst i t ut i onal ,
hi s of f i ce woul d no l onger def end t hem on behal f of Rai ney. He
not ed, however , t hat Rai ney woul d cont i nue t o enf or ce t he l aws
unt i l t he cour t ’ s r ul i ng. The ot her of f i ci al s have cont i nued t o
def end Vi r gi ni a’ s mar r i age l aws, and, f or conveni ence, I r ef er
t o t he def endant s her ei n as “Vi r gi ni a. ”
Fol l owi ng a hear i ng, t he di st r i ct cour t , by an or der and
memor andum dat ed Febr uar y 14, 2014, gr ant ed t he pl ai nt i f f s’
mot i on f or summar y j udgment and deni ed Vi r gi ni a’ s cr oss- mot i on.
The cour t concl uded t hat same- sex par t ner s have a f undament al
r i ght t o mar r y each ot her under t he Due Pr ocess Cl ause of t he
Four t eent h Amendment , t hus r equi r i ng t hat Vi r gi ni a’ s mar r i age
l aws r est r i ct i ng t hat r i ght be nar r owl y dr awn t o f ur t her a
compel l i ng st at e i nt er est . I t concl uded t hat t he l aws di d not
meet t hat r equi r ement and, i ndeed, “f ai l [ ed] t o di spl ay a
r at i onal r el at i onshi p t o a l egi t i mat e pur pose, and so must be
vi ewed as const i t ut i onal l y i nf i r m under even t he l east oner ous
l evel of scr ut i ny. ” Bost i c, 970 F. Supp. 2d at 482. St r i ki ng
down Vi r gi ni a’ s mar r i age l aws, t he cour t al so i ssued an or der
enj oi ni ng t hei r enf or cement but st ayed t hat or der pendi ng
appeal . Thi s appeal f ol l owed.

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I I

The pl ai nt i f f s cont end t hat , as same- sex par t ner s, t hey
have a f undament al r i ght t o mar r y t hat i s pr ot ect ed by t he
subst ant i ve component of t he Due Pr ocess Cl ause of t he U. S.
Const i t ut i on, U. S. Const . amend. XI V, § 1 ( pr ohi bi t i ng any St at e
f r om depr i vi ng “any per son of l i f e, l i ber t y, or pr oper t y,
wi t hout due pr ocess of l aw”) , and t hat Vi r gi ni a’ s l aws def i ni ng
mar r i age as onl y bet ween a man and a woman and excl udi ng same-
sex mar r i age i nf r i nge on t hat r i ght . The const i t ut i onal
anal ysi s f or adj udgi ng t hei r cl ai mi s wel l est abl i shed.
The Const i t ut i on cont ai ns no l anguage di r ect l y pr ot ect i ng
t he r i ght t o same- sex mar r i age or even t r adi t i onal mar r i age.
Any r i ght t o same- sex mar r i age, t her ef or e, woul d have t o be
f ound, t hr ough cour t i nt er pr et at i on, as a subst ant i ve component
of t he Due Pr ocess Cl ause. See Pl anned Par ent hood of
Sout heast er n Pa. v. Casey, 505 U. S. 833, 846 ( 1992) ( “Al t hough a
l i t er al r eadi ng of t he Cl ause mi ght suggest t hat i t gover ns onl y
t he pr ocedur es by whi ch a St at e may depr i ve per sons of l i ber t y,
f or at l east 105 year s . . . t he Cl ause has been under st ood t o
cont ai n a subst ant i ve component as wel l ”) .
The subst ant i ve component of t he Due Pr ocess Cl ause onl y
pr ot ect s “f undament al ” l i ber t y i nt er est s. And t he Supr eme Cour t
has hel d t hat l i ber t y i nt er est s ar e onl y f undament al i f t hey
ar e, “obj ect i vel y, ‘ deepl y r oot ed i n t hi s Nat i on’ s hi st or y and
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t r adi t i on, ’ and ‘ i mpl i ci t i n t he concept of or der ed l i ber t y, ’
such t hat ‘ nei t her l i ber t y nor j ust i ce woul d exi st i f t hey wer e
sacr i f i ced. ’ ” Gl ucksber g, 521 U. S. at 720- 21 ( ci t at i on omi t t ed)
( quot i ng Moor e, 431 U. S. at 503 ( pl ur al i t y opi ni on) ; Pal ko, 302
U. S. at 325- 26) . When det er mi ni ng whet her such a f undament al
r i ght exi st s, a cour t must al ways make “a ‘ car ef ul descr i pt i on’
of t he asser t ed f undament al l i ber t y i nt er est . ” I d. at 721
( emphasi s added) ( quot i ng Reno v. Fl or es, 507 U. S. 292, 302
( 1993) ) . Thi s “car ef ul descr i pt i on” i nvol ves char act er i zi ng t he
r i ght asser t ed i n i t s nar r owest t er ms. Thus, i n Gl ucksber g,
wher e t he Cour t was pr esent ed wi t h a due pr ocess chal l enge t o a
st at e st at ut e banni ng assi st ed sui ci de, t he Cour t nar r owl y
char act er i zed t he r i ght bei ng asser t ed i n t he f ol l owi ng manner :
The Cour t of Appeal s st at ed t hat “[ p] r oper l y anal yzed,
t he f i r st i ssue t o be r esol ved i s whet her t her e i s a
l i ber t y i nt er est i n det er mi ni ng t he t i me and manner of
one’ s deat h, ” or , i n ot her wor ds, “[ i ] s t her e a r i ght
t o di e?” Si mi l ar l y, r espondent s asser t a “l i ber t y t o
choose how t o di e” and a r i ght t o “cont r ol of one’ s
f i nal days, ” and descr i be t he asser t ed l i ber t y as “t he
r i ght t o choose a humane, di gni f i ed deat h, ” and “t he
l i ber t y t o shape deat h. ” As not ed above, we have a
t r adi t i on of car ef ul l y f or mul at i ng t he i nt er est at
st ake i n subst ant i ve- due- pr ocess cases. . . . The
Washi ngt on st at ut e at i ssue i n t hi s case pr ohi bi t s
“ai d[ i ng] anot her per son t o at t empt sui ci de, ” and,
t hus, t he quest i on bef or e us i s whet her t he “l i ber t y”
speci al l y pr ot ect ed by t he Due Pr ocess Cl ause i ncl udes
a r i ght t o commi t sui ci de whi ch i t sel f i ncl udes a
r i ght t o assi st ance i n doi ng so.

Gl ucksber g, 521 U. S. at 722- 23 ( al t er at i ons i n or i gi nal )
( emphasi s added) ( ci t at i ons omi t t ed) .
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Under t hi s f or mul at i on, because t he Vi r gi ni a l aws at i ssue
pr ohi bi t “mar r i age bet ween per sons of t he same sex, ” Va. Code
Ann. § 20- 45. 2, “t he quest i on bef or e us i s whet her t he ‘ l i ber t y’
speci al l y pr ot ect ed by t he Due Pr ocess Cl ause i ncl udes a r i ght ”
t o same- sex mar r i age. Gl ucksber g, 521 U. S. at 723; see al so
J ackson v. Aber cr ombi e, 884 F. Supp. 2d 1065, 1095 ( D. Haw.
2012) ( “[ M] i ssi ng f r om Pl ai nt i f f s’ asser t ed ‘ r i ght t o mar r y t he
per son of one’ s choi ce’ i s i t s cent er pi ece: t he r i ght t o mar r y
someone of t he same gender ”) .
When a f undament al r i ght i s so i dent i f i ed, t hen any st at ut e
r est r i ct i ng t he r i ght i s subj ect t o st r i ct scr ut i ny and must be
“nar r owl y t ai l or ed t o ser ve a compel l i ng st at e i nt er est . ”
Fl or es, 507 U. S. at 302. Such scr ut i ny i s ext r emel y di f f i cul t
f or a l aw t o wi t hst and, and, as such, t he Supr eme Cour t has
not ed t hat cour t s must be ext r emel y caut i ous i n r ecogni zi ng
f undament al r i ght s because doi ng so or di nar i l y r emoves f r eedom
of choi ce f r omt he hands of t he peopl e:
[ W] e “ha[ ve] al ways been r el uct ant t o expand t he
concept of subst ant i ve due pr ocess because gui depost s
f or r esponsi bl e deci si onmaki ng i n t hi s unchar t er ed
ar ea ar e scar ce and open- ended. ” By ext endi ng
const i t ut i onal pr ot ect i on t o an asser t ed r i ght or
l i ber t y i nt er est , we, t o a gr eat ext ent , pl ace t he
mat t er out si de t he ar ena of publ i c debat e and
l egi sl at i ve act i on. We must t her ef or e “exer ci se t he
ut most car e whenever we ar e asked t o br eak new gr ound
i n t hi s f i el d, ” l est t he l i ber t y pr ot ect ed by t he Due
Pr ocess Cl ause be subt l y t r ansf or med i nt o t he pol i cy
pr ef er ences of t he Member s of t hi s Cour t .

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Gl ucksber g, 521 U. S. at 720 ( second al t er at i on i n or i gi nal )
( emphasi s added) ( quot i ng Col l i ns v. Ci t y of Har ker Hei ght s, 503
U. S. 115, 125 ( 1992) ) .
The pl ai nt i f f s i n t hi s case, as wel l as t he maj or i t y,
r ecogni ze t hat nar r owl y def i ni ng t he asser t ed l i ber t y i nt er est
woul d r equi r e t hem t o demonst r at e a new f undament al r i ght t o
same- sex mar r i age, whi ch t hey cannot do. Thus, t hey have made
no at t empt t o ar gue t hat same- sex mar r i age i s, “obj ect i vel y,
deepl y r oot ed i n t hi s Nat i on’ s hi st or y and t r adi t i on, ” and
“i mpl i ci t i n t he concept of or der ed l i ber t y. ” Gl ucksber g, 521
U. S. at 720- 21 ( i nt er nal quot at i on mar ks omi t t ed) . I ndeed, t hey
have acknowl edged t hat r ecogni t i on of same- sex mar r i age i s a
r ecent devel opment . See ant e at 41; see al so Uni t ed St at es v.
Wi ndsor , 133 S. Ct . 2675, 2689 ( 2013) ( “Unt i l r ecent year s, many
ci t i zens had not even consi der ed t he possi bi l i t y of [ same- sex
mar r i age] ” ( emphasi s added) ) ; i d. at 2715 ( Al i t o, J . ,
di ssent i ng) ( not i ng t hat i t i s “beyond di sput e t hat t he r i ght t o
same- sex mar r i age i s not deepl y r oot ed i n t hi s Nat i on’ s hi st or y
and t r adi t i on”) ; Baehr v. Lewi n, 852 P. 2d 44, 57 ( Haw. 1993)
( “[ W] e do not bel i eve t hat a r i ght t o same- sex mar r i age i s so
r oot ed i n t he t r adi t i ons and col l ect i ve consci ence of our peopl e
t hat f ai l ur e t o r ecogni ze i t woul d vi ol at e t he f undament al
pr i nci pl es of l i ber t y and j ust i ce t hat l i e at t he base of al l
our ci vi l and pol i t i cal i nst i t ut i ons”) .
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I nst ead, t he pl ai nt i f f s and t he maj or i t y ar gue t hat t he
f undament al r i ght t o mar r i age t hat has pr evi ousl y been
r ecogni zed by t he Supr eme Cour t i s a br oad r i ght t hat shoul d
appl y t o t he pl ai nt i f f s wi t hout t he need t o r ecogni ze a new
f undament al r i ght t o same- sex mar r i age. They ar gue t hat t hi s
appr oach i s suppor t ed by t he f act t hat t he Supr eme Cour t di d not
nar r owl y def i ne t he r i ght t o mar r i age i n i t s deci si ons i n
Lovi ng, 388 U. S. at 12; Tur ner , 482 U. S. at 94- 96; or Zabl ocki ,
434 U. S. at 383- 86.
I t i s t r ue t hat , i n t hose cases, t he Cour t di d not
r ecogni ze new, separ at e f undament al r i ght s t o f i t t he f act ual
ci r cumst ances i n each case. For exampl e, i n Lovi ng, t he Cour t
di d not exami ne whet her i nt er r aci al mar r i age was, obj ect i vel y,
deepl y r oot ed i n our Nat i on’ s hi st or y and t r adi t i on. But i t was
not r equi r ed t o do so. Each of t hose cases i nvol ved a coupl e
asser t i ng a r i ght t o ent er i nt o a t r adi t i onal mar r i age of t he
t ype t hat has al ways been r ecogni zed si nce t he begi nni ng of t he
Nat i on - - a uni on bet ween one man and one woman. Whi l e t he
cont ext f or asser t i ng t he r i ght var i ed i n each of t hose cases,
i t var i ed onl y i n ways i r r el evant t o t he concept of mar r i age.
The t ype of r el at i onshi p sought was al ways t he t r adi t i onal , man-
woman r el at i onshi p t o whi ch t he t er m “mar r i age” was t her et of or e
al ways assumed t o r ef er . Thus, none of t he cases ci t ed by t he
pl ai nt i f f s and r el i ed on by t he maj or i t y i nvol ved t he asser t i on
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of a br and new l i ber t y i nt er est . To t he cont r ar y, t hey i nvol ved
t he asser t i on of one of t he ol dest and most f undament al l i ber t y
i nt er est s i n our soci et y.
To now def i ne t he pr evi ousl y r ecogni zed f undament al r i ght
t o “mar r i age” as a concept t hat i ncl udes t he new not i on of
“same- sex mar r i age” amount s t o a di ct i onar y j ur i spr udence, whi ch
def i nes t er ms as conveni ent t o at t ai n an end.
I t i s t r ue t hat same- sex and opposi t e- sex r el at i onshi ps
shar e many at t r i but es, and, t her ef or e, mar r i ages i nvol vi ng t hose
r el at i onshi ps woul d, t o a subst ant i al ext ent , be si mi l ar . Two
per sons who ar e at t r act ed t o each ot her physi cal l y and
emot i onal l y and who l ove each ot her coul d publ i cl y pr omi se t o
l i ve wi t h each ot her t her eaf t er i n a mut ual l y desi r abl e
r el at i onshi p. These aspect s ar e t he same whet her t he per sons
ar e of t he same sex or di f f er ent sexes. Mor eover , bot h
r el at i onshi ps coul d successf ul l y f unct i on t o r ai se chi l dr en,
al t hough chi l dr en i n a same- sex r el at i onshi p woul d come f r om one
par t ner or f r om adopt i on. But t her e ar e al so si gni f i cant
di st i nct i ons bet ween t he r el at i onshi ps t hat can j ust i f y
di f f er ent i al t r eat ment by l awmaker s.
Onl y t he uni on of a man and a woman has t he capaci t y t o
pr oduce chi l dr en and t hus t o car r y on t he speci es. And mor e
i mpor t ant l y, onl y such a uni on cr eat es a bi ol ogi cal f ami l y uni t
t hat al so gi ves r i se t o a t r adi t i onal l y st abl e pol i t i cal uni t .
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Ever y per son’ s i dent i t y i ncl udes t he per son’ s par t i cul ar
bi ol ogi cal r el at i onshi ps, whi ch cr eat e uni que and meani ngf ul
bonds of ki nshi p t hat ar e ext r aor di nar i l y st r ong and endur i ng
and t hat have been af f or ded a pr i vi l eged pl ace i n pol i t i cal
or der t hr oughout human hi st or y. Soci et i es have accor di ngl y
enact ed l aws pr omot i ng t he f ami l y uni t - - such as t hose r el at i ng
t o sexual engagement , mar r i age r i t es, di vor ce, i nher i t ance, name
and t i t l e, and economi c mat t er s. And many soci et i es have f ound
f ami l i al bonds so cr i t i cal t hat t hey have el evat ed mar r i age t o
be a sacr ed i nst i t ut i on t r apped wi t h r el i gi ous r i t ual s. I n
t hese r espect s, t he t r adi t i onal man- woman r el at i onshi p i s
uni que.
Thus, when t he Supr eme Cour t has r ecogni zed, t hr ough t he
year s, t hat t he r i ght t o mar r y i s a f undament al r i ght , i t has
emphasi zed t he pr ocr eat i ve and soci al or der i ng aspect s of
t r adi t i onal mar r i age. For exampl e, i t has sai d: “[ Mar r i age] i s
an i nst i t ut i on, i n t he mai nt enance of whi ch i n i t s pur i t y t he
publ i c i s deepl y i nt er est ed, f or i t i s t he f oundat i on of t he
f ami l y and of soci et y, wi t hout whi ch t her e woul d be nei t her
ci vi l i zat i on nor pr ogr ess, ” Maynar d v. Hi l l , 125 U. S. 190, 211
( 1888) ( emphasi s added) ; Mar r i age i s “one of t he basi c ci vi l
r i ght s of man. Mar r i age and pr ocr eat i on ar e f undament al t o t he
ver y exi st ence and sur vi val of t he r ace, ” Ski nner v. Okl ahoma ex
r el . Wi l l i amson, 316 U. S. 535, 541 ( 1942) ; “I t i s not sur pr i si ng
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t hat t he deci si on t o mar r y has been pl aced on t he same l evel of
i mpor t ance as deci si ons r el at i ng t o pr ocr eat i on, chi l dbi r t h,
chi l dr ear i ng, and f ami l y r el at i onshi ps. . . . [ Mar r i age] i s t he
f oundat i on of t he f ami l y i n our soci et y, ” Zabl ocki , 434 U. S. at
386.
Because t her e exi st deep, f undament al di f f er ences bet ween
t r adi t i onal and same- sex mar r i age, t he pl ai nt i f f s and t he
maj or i t y er r by conf l at i ng t he t wo r el at i onshi ps under t he
l oosel y dr awn r ubr i c of “t he r i ght t o mar r i age. ” Rat her , t o
obt ai n const i t ut i onal pr ot ect i on, t hey woul d have t o show t hat
t he r i ght t o same- sex mar r i age i s i t sel f deepl y r oot ed i n our
Nat i on’ s hi st or y. They have not at t empt ed t o do so and coul d
not succeed i f t hey wer e so t o at t empt .
I n an ef f or t t o br i dge t he obvi ous di f f er ences bet ween t he
t r adi t i onal r el at i onshi p and t he new same- sex r el at i onshi p, t he
pl ai nt i f f s ar gue t hat t he f undament al r i ght t o mar r i age “has
al ways been based on, and def i ned by, t he const i t ut i onal l i ber t y
t o sel ect t he par t ner of one’ s choi ce. ” ( Emphasi s added) . They
r el y heavi l y on Lovi ng t o asser t t hi s cl ai m. I n Lovi ng, t he
Cour t hel d t hat a st at e r egul at i on r est r i ct i ng i nt er r aci al
mar r i age i nf r i nged on t he f undament al r i ght t o mar r i age.
Lovi ng, 388 U. S. at 12. But nowher e i n Lovi ng di d t he Cour t
suggest t hat t he f undament al r i ght t o mar r y i ncl udes t he
unr est r i ct ed r i ght t o mar r y whomever one chooses, as t he
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pl ai nt i f f s cl ai m. I ndeed, Lovi ng expl i ci t l y r el i ed on Ski nner
and Mur phy, and bot h of t hose cases di scussed mar r i age i n
t r adi t i onal , pr ocr eat i ve t er ms. I d.
Thi s r eadi ng of Lovi ng i s f or t i f i ed by t he Cour t ’ s summar y
di smi ssal of Baker v. Nel son, 191 N. W. 2d 185 ( Mi nn. 1971) ,
appeal di smi ssed, 409 U. S. 810 ( 1972) , j ust f i ve year s af t er
Lovi ng was deci ded. I n Baker , t he Mi nnesot a Supr eme Cour t
i nt er pr et ed a st at e st at ut e’ s use of t he t er m “mar r i age” t o be
one of common usage meani ng a uni on “bet ween per sons of t he
opposi t e sex” and t hus not i ncl udi ng same- sex mar r i age. I d. at
186. On appeal , t he Supr eme Cour t di smi ssed t he case summar i l y
“f or want of a subst ant i al f eder al quest i on. ” 409 U. S. at 810.
The Cour t ’ s act i on i n cont ext i ndi cat es t hat t he Cour t di d not
vi ew Lovi ng or t he cases t hat pr eceded i t as pr ovi di ng a
f undament al r i ght t o an unr est r i ct ed choi ce of mar r i age par t ner .
Ot her wi se, t he st at e cour t ’ s deci si on i n Baker woul d i ndeed have
pr esent ed a subst ant i al f eder al quest i on.
I n shor t , Lovi ng si mpl y hel d t hat r ace, whi ch i s compl et el y
unr el at ed t o t he i nst i t ut i on of mar r i age, coul d not be t he basi s
of mar i t al r est r i ct i ons. See Lovi ng, 388 U. S. at 12. To
st r et ch Lovi ng’ s hol di ng t o say t hat t he r i ght t o mar r y i s not
l i mi t ed by gender and sexual or i ent at i on i s t o i gnor e t he
i next r i cabl e, bi ol ogi cal l i nk bet ween mar r i age and pr ocr eat i on
t hat t he Supr eme Cour t has al ways r ecogni zed. See Wi ndsor , 133
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S. Ct . at 2689 ( r ecogni zi ng t hat t hr oughout hi st or y, “mar r i age
bet ween a man and a woman no doubt had been t hought of by most
peopl e as essent i al t o t he ver y def i ni t i on of t hat t er m and t o
i t s r ol e and f unct i on”) . The st at e r egul at i on st r uck down i n
Lovi ng, l i ke t hose i n Zabl ocki and Tur ner , had no r el at i onshi p
t o t he f oundat i onal pur poses of mar r i age, whi l e t he gender of
t he i ndi vi dual s i n a mar r i age cl ear l y does. Thus, t he maj or i t y
er r s, as di d t he di st r i ct cour t , by i nt er pr et i ng t he Supr eme
Cour t ’ s mar r i age cases as est abl i shi ng a r i ght t hat i ncl udes
same- sex mar r i age.
The pl ai nt i f f s al so l ar gel y i gnor e t he pr obl em wi t h t hei r
posi t i on t hat i f t he f undament al r i ght t o mar r i age i s based on
“t he const i t ut i onal l i ber t y t o sel ect t he par t ner of one’ s
choi ce, ” as t hey cont end, t hen t hat l i ber t y woul d al so ext end t o
i ndi vi dual s seeki ng st at e r ecogni t i on of ot her t ypes of
r el at i onshi ps t hat St at es cur r ent l y r est r i ct , such as pol ygamous
or i ncest uous r el at i onshi ps. Cf . Romer v. Evans, 517 U. S. 620,
648- 50 ( 1996) ( Scal i a, J . , di ssent i ng) . Such an ext ensi on woul d
be a r adi cal shi f t i n our under st andi ng of mar i t al
r el at i onshi ps. Laws r est r i ct i ng pol ygamy ar e f oundat i onal t o
t he Uni on i t sel f , havi ng been a condi t i on on t he ent r ance of
Ar i zona, New Mexi co, Okl ahoma, and Ut ah i nt o st at ehood. I d.
Whi l e t he pl ai nt i f f s do at t empt t o assur e us t hat such l aws ar e
saf e because “t her e ar e wei ght y gover nment i nt er est s under l yi ng”
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t hem, such an ar gument does not bear on t he quest i on of whet her
t he r i ght i s f undament al . The gover nment ’ s i nt er est s woul d
i nst ead be r el evant onl y t o whet her t he r est r i ct i on coul d meet
t he r equi si t e st andar d of r evi ew. And because l aws pr ohi bi t i ng
pol ygamous or i ncest uous mar r i ages r est r i ct i ndi vi dual s’ r i ght
t o choose whom t hey woul d l i ke t o mar r y, t hey woul d, under t he
pl ai nt i f f s’ appr oach, have t o be exami ned under st r i ct scr ut i ny.
Per haps t he gover nment ’ s i nt er est woul d be st r ong enough t o
enabl e such l aws t o sur vi ve st r i ct scr ut i ny, but r egar dl ess,
t oday’ s deci si on woul d t r ul y be a sweepi ng one i f i t coul d be
under st ood t o mean t hat i ndi vi dual s have a f undament al r i ght t o
ent er i nt o a mar r i age wi t h any per son, or any peopl e, of t hei r
choosi ng.
At bot t om, t he f undament al r i ght t o mar r i age does not
i ncl ude a r i ght t o same- sex mar r i age. Under t he Gl ucksber g
anal ysi s t hat we ar e t hus bound t o conduct , t her e i s no new
f undament al r i ght t o same- sex mar r i age. Vi r gi ni a’ s l aws
r est r i ct i ng mar r i age t o man- woman r el at i onshi ps must t her ef or e
be uphel d i f t her e i s any r at i onal basi s f or t he l aws.

I I I

Under r at i onal - basi s r evi ew, cour t s ar e r equi r ed t o gi ve
heavy def er ence t o l egi sl at ur es. The st andar d
si mpl y r equi r es cour t s t o det er mi ne whet her t he
cl assi f i cat i on i n quest i on i s, at a mi ni mum,
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r at i onal l y r el at ed t o l egi t i mat e gover nment al goal s.
I n ot her wor ds, t he f i t bet ween t he enact ment and t he
publ i c pur poses behi nd i t need not be mat hemat i cal l y
pr eci se. As l ong as [ t he l egi sl at ur e] has a
r easonabl e basi s f or adopt i ng t he cl assi f i cat i on,
whi ch can i ncl ude “r at i onal specul at i on unsuppor t ed by
evi dence or empi r i cal dat a, ” t he st at ut e wi l l pass
const i t ut i onal must er . The r at i onal basi s st andar d
t hus embodi es an i dea cr i t i cal t o t he cont i nui ng
vi t al i t y of our democr acy: t hat cour t s ar e not
empower ed t o “si t as a super l egi sl at ur e t o j udge t he
wi sdom or desi r abi l i t y of l egi sl at i ve pol i cy
det er mi nat i ons. ”
Wi l ki ns v. Gaddy, 734 F. 3d 344, 347- 48 ( 4t h Ci r . 2013) ( emphasi s
added) ( ci t at i ons omi t t ed) ( quot i ng FCC v. Beach Commc’ ns, I nc. ,
508 U. S. 307, 315 ( 1993) ; Ci t y of New Or l eans v. Dukes, 427 U. S.
297, 303 ( 1976) ) . St at ut es subj ect t o r at i onal - basi s r evi ew
“bear [ ] a st r ong pr esumpt i on of val i di t y, and t hose at t acki ng
t he r at i onal i t y of t he l egi sl at i ve cl assi f i cat i on have t he
bur den ‘ t o negat i ve ever y concei vabl e basi s whi ch mi ght suppor t
[ t hem] . ’ ” Beach Commc’ ns, 508 U. S. at 314- 15 ( emphasi s added)
( ci t at i on omi t t ed) ( quot i ng Lehnhausen v. Lake Shor e Aut o Par t s
Co. , 410 U. S. 356, 364 ( 1973) ) .
I n cont endi ng t hat t her e i s a r at i onal basi s f or i t s
mar r i age l aws, Vi r gi ni a has emphasi zed t hat chi l dr en ar e bor n
onl y t o one man and one woman and t hat mar r i age pr ovi des a
f ami l y st r uct ur e by whi ch t o nour i sh and r ai se t hose chi l dr en.
I t cl ai ms t hat a bi ol ogi cal f ami l y i s a mor e st abl e envi r onment ,
and i t r enounces any i nt er est i n encour agi ng same- sex mar r i age.
I t ar gues t hat t he pur pose of i t s mar r i age l aws “i s t o channel
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t he pr esumpt i ve pr ocr eat i ve pot ent i al of man- woman r el at i onshi ps
i nt o endur i ng mar i t al uni ons so t hat i f any chi l dr en ar e bor n,
t hey ar e mor e l i kel y t o be r ai sed i n st abl e f ami l y uni t s. ”
( Emphasi s omi t t ed) . Vi r gi ni a hi ghl i ght s especi al l y mar r i age’ s
t endency t o pr omot e st abi l i t y i n t he event of unpl anned
pr egnanci es, asser t i ng t hat i t has “a compel l i ng i nt er est i n
addr essi ng t he par t i cul ar concer ns associ at ed wi t h t he bi r t h of
unpl anned chi l dr en. . . . [ C] hi l dr en bor n f r om unpl anned
pr egnanci es wher e t hei r mot her and f at her ar e not mar r i ed t o
each ot her ar e at si gni f i cant r i sk of bei ng r ai sed out si de
st abl e f ami l y uni t s headed by t hei r mot her and f at her j oi nt l y. ”
Vi r gi ni a st at es t hat i t s j ust i f i cat i ons f or pr omot i ng
t r adi t i onal mar r i age al so expl ai n i t s l ack of i nt er est i n
pr omot i ng same- sex mar r i age. I t mai nt ai ns t hat a t r adi t i onal
mar r i age i s “excl usi vel y [ an] opposi t e- sex i nst i t ut i on
. . . i next r i cabl y l i nked t o pr ocr eat i on and bi ol ogi cal
ki nshi p, ” Wi ndsor , 133 S. Ct . at 2718 ( Al i t o, J . , di ssent i ng) ,
and t hat same- sex mar r i age pr i or i t i zes t he emot i ons and sexual
at t r act i ons of t he t wo par t ner s wi t hout any necessar y l i nk t o
r epr oduct i on. I t asser t s t hat i t has no i nt er est i n “l i censi ng
adul t s’ l ove. ”
The pl ai nt i f f s accept t hat f ami l y st abi l i t y i s a l egi t i mat e
st at e goal , but t hey ar gue t hat l i censi ng same- sex r el at i onshi ps
wi l l not bur den Vi r gi ni a’ s achi evement of t hat goal . They
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cont end t hat “t her e i s si mpl y no evi dence or r eason t o bel i eve
t hat pr ohi bi t i ng gay men and l esbi ans f r om mar r yi ng wi l l
i ncr ease ‘ r esponsi bl e pr ocr eat i on’ among het er osexual s. ”
But t hi s ar gument does not negat e any of t he r at i onal
j ust i f i cat i ons f or Vi r gi ni a’ s l egi sl at i on. St at es ar e per mi t t ed
t o sel ect i vel y pr ovi de benef i t s t o onl y cer t ai n gr oups when
pr ovi di ng t hose same benef i t s t o ot her gr oups woul d not f ur t her
t he St at e’ s ul t i mat e goal s. See J ohnson v. Robi nson, 415 U. S.
361, 383 ( 1974) ( “When . . . t he i ncl usi on of one gr oup pr omot es
a l egi t i mat e gover nment al pur pose, and t he addi t i on of ot her
gr oups woul d not , we cannot say t hat t he st at ut e' s
cl assi f i cat i on of benef i ci ar i es and nonbenef i ci ar i es i s
i nvi di ousl y di scr i mi nat or y”) . Her e, t he Commonweal t h’ s goal of
ensur i ng t hat unpl anned chi l dr en ar e r ai sed i n st abl e homes i s
f ur t her ed onl y by of f er i ng t he benef i t s of mar r i age t o opposi t e-
sex coupl es. As Vi r gi ni a cor r ect l y asser t s, “t he r el evant
i nqui r y her e i s not whet her excl udi ng same- sex coupl es f r om
mar r i age f ur t her s [ Vi r gi ni a’ s] i nt er est i n st eer i ng man- woman
coupl es i nt o mar r i age. ” Rat her , t he r el evant i nqui r y i s whet her
al so r ecogni zi ng same- sex mar r i ages woul d f ur t her Vi r gi ni a’ s
i nt er est s. Wi t h r egar d t o i t s i nt er est i n ensur i ng st abl e
f ami l i es i n t he event of unpl anned pr egnanci es, i t woul d not .
The pl ai nt i f f s r epl y t hat even i f t hi s i s so, such “l i ne-
dr awi ng” onl y makes sense i f t he r esour ces at i ssue ar e scar ce,
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j ust i f yi ng t he St at e’ s l i mi t ed pr ovi si on of t hose r esour ces.
They ar gue t hat because “[ m] ar r i age l i censes . . . ar e not a
r emot el y scar ce commodi t y, ” t he l i ne- dr awi ng done by Vi r gi ni a’ s
mar r i age l aws i s i r r at i onal . But t hi s f undament al l y
mi sunder st ands t he nat ur e of mar r i age benef i t s. When t he
Commonweal t h gr ant s a mar r i age, i t does not si mpl y gi ve t he
coupl e a pi ece of paper and a t i t l e. Rat her , i t pr ovi des a
subst ant i al subsi dy t o t he mar r i ed coupl e - - economi c benef i t s
t hat , t he pl ai nt i f f s r epeat edl y asser t , ar e bei ng deni ed t hem.
For exampl e, mar r i ed coupl es ar e per mi t t ed t o f i l e st at e i ncome
t axes j oi nt l y, l ower i ng t hei r t ax r at es. See Va. Code Ann.
§ 58. 1- 324. Al t hough i ndi r ect , such benef i t s ar e cl ear l y
subsi di es t hat come at a cost t o t he Commonweal t h. Vi r gi ni a i s
wi l l i ng t o pr ovi de t hese subsi di es because t hey encour age
opposi t e- sex coupl es t o mar r y, whi ch t ends t o pr ovi de chi l dr en
f r om unpl anned pr egnanci es wi t h a mor e st abl e envi r onment .
Under J ohnson, t he Commonweal t h i s not obl i gat ed t o si mi l ar l y
subsi di ze same- sex mar r i ages, si nce doi ng so coul d not possi bl y
f ur t her i t s i nt er est . Thi s i s no di f f er ent f r om t he subsi di es
pr ovi ded i n ot her cases wher e t he Supr eme Cour t has uphel d l i ne-
dr awi ng, such as Medi car e benef i t s, Mat t hews v. Di az, 426 U. S.
67, 83- 84 ( 1976) , or vet er ans’ educat i onal benef i t s, J ohnson,
415 U. S. at 383.
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As an addi t i onal ar gument , Vi r gi ni a mai nt ai ns t hat mar r i age
i s a “[ c] ompl ex soci al i nst i t ut i on[ ] ” wi t h a “set of nor ms,
r ul es, pat t er ns, and expect at i ons t hat power f ul l y ( al bei t of t en
unconsci ousl y) af f ect peopl e’ s choi ces, act i ons, and
per spect i ves. ” I t asser t s t hat di scar di ng t he t r adi t i onal
def i ni t i on of mar r i age wi l l have f ar - r eachi ng consequences t hat
cannot easi l y be pr edi ct ed, i ncl udi ng “sever [ i ng] t he i nher ent
l i nk bet ween pr ocr eat i on . . . and mar r i age . . . [ and] i n
t ur n . . . power f ul l y convey[ i ng] t hat mar r i age exi st s t o
advance adul t desi r es r at her t han [ t o] ser v[ e] chi l dr en’ s
needs. ”
The pl ai nt i f f s agr ee t hat changi ng t he def i ni t i on of
mar r i age may have unf or eseen soci al ef f ect s, but t hey ar gue t hat
such pr edi ct i ons shoul d not be enough t o save Vi r gi ni a’ s
mar r i age l aws because si mi l ar j ust i f i cat i ons wer e r ej ect ed i n
Lovi ng. The Lovi ng Cour t , however , was not appl yi ng r at i onal -
basi s r evi ew. See Lovi ng, 388 U. S. at 11- 12. We ar e on a
di f f er ent f oot i ng her e. Under r at i onal - basi s r evi ew,
l egi sl at i ve choi ces “may be based on r at i onal specul at i on
unsuppor t ed by evi dence or empi r i cal dat a. ” Beach Commc’ ns, 508
U. S. at 315. “Sound pol i cymaki ng of t en r equi r es l egi sl at or s t o
f or ecast f ut ur e event s and t o ant i ci pat e t he l i kel y i mpact of
t hese event s based on deduct i ons and i nf er ences f or whi ch
compl et e empi r i cal suppor t may be unavai l abl e. ” Tur ner Br oad.
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Sys. , I nc. v. FCC, 512 U. S. 622, 665 ( 1994) ( pl ur al i t y opi ni on) .
And t he l egi sl at ur e “i s f ar bet t er equi pped t han t he j udi ci ar y”
t o make t hese eval uat i ons and ul t i mat el y deci de on a cour se of
act i on based on i t s pr edi ct i ons. I d. at 665- 66. I n enact i ng
i t s mar r i age l aws, Vi r gi ni a pr edi ct ed t hat changi ng t he
def i ni t i on of mar r i age woul d have a negat i ve ef f ect on chi l dr en
and on t he f ami l y st r uct ur e. Al t hough ot her St at es do not shar e
t hose concer ns, such eval uat i ons wer e nonet hel ess squar el y
wi t hi n t he pr ovi nce of t he Commonweal t h’ s l egi sl at ur e and i t s
ci t i zens, who vot ed t o amend Vi r gi ni a’ s Const i t ut i on i n 2006.
Vi r gi ni a has undoubt edl y ar t i cul at ed suf f i ci ent r at i onal
bases f or i t s mar r i age l aws, and I woul d f i nd t hat t hose bases
const i t ut i onal l y j ust i f y t he l aws. Those l aws ar e gr ounded on
t he bi ol ogi cal connect i on of men and women; t he pot ent i al f or
t hei r havi ng chi l dr en; t he f ami l y or der needed i n r ai si ng
chi l dr en; and, on a l ar ger scal e, t he pol i t i cal or der r esul t i ng
f r om st abl e f ami l y uni t s. Mor eover , I woul d add t hat t he
t r adi t i onal mar r i age r el at i onshi p encour ages a f ami l y st r uct ur e
t hat i s i nt er gener at i onal , gi vi ng chi l dr en not onl y a st r uct ur e
i n whi ch t o be r ai sed but al so an i dent i t y and a st r ong
r el at i onal cont ext . The mar r i age of a man and a woman t hus
r at i onal l y pr omot es a cor r el at i on bet ween bi ol ogi cal or der and
pol i t i cal or der . Because Vi r gi ni a’ s mar r i age l aws ar e
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r at i onal l y r el at ed t o i t s l egi t i mat e pur poses, t hey wi t hst and
r at i onal - basi s scr ut i ny under t he Due Pr ocess Cl ause.

I V

The maj or i t y does not subst ant i vel y addr ess t he pl ai nt i f f s’
second ar gument - - t hat Vi r gi ni a’ s mar r i age l aws i nvi di ousl y
di scr i mi nat e on t he basi s of sexual or i ent at i on, i n vi ol at i on of
t he Equal Pr ot ect i on Cl ause - - si nce i t f i nds t hat t he l aws
i nf r i nge on t he pl ai nt i f f s’ f undament al r i ght t o mar r i age. But
because I f i nd no f undament al r i ght i s i nf r i nged by t he l aws, I
al so addr ess di scr i mi nat i on under t he Equal Pr ot ect i on Cl ause.
The Equal Pr ot ect i on Cl ause, whi ch f or bi ds any St at e f r om
“deny[ i ng] t o any per son wi t hi n i t s j ur i sdi ct i on t he equal
pr ot ect i on of t he l aws, ” U. S. Const . amend. XI V, § 1, pr ohi bi t s
i nvi di ous di scr i mi nat i on among cl asses of per sons. Some
cl assi f i cat i ons - - such as t hose based on r ace, al i enage, or
nat i onal or i gi n - - ar e “so sel domr el evant t o t he achi evement of
any l egi t i mat e st at e i nt er est t hat l aws gr ounded i n such
consi der at i ons ar e deemed t o r ef l ect pr ej udi ce and ant i pat hy - -
a vi ew t hat t hose i n t he bur dened cl ass ar e not as wor t hy or
deser vi ng as ot her s. ” Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Ct r . ,
473 U. S. 432, 440 ( 1985) . Any l aws based on such “suspect ”
cl assi f i cat i ons ar e subj ect t o st r i ct scr ut i ny. See i d. I n a
si mi l ar vei n, cl assi f i cat i ons based on gender ar e “quasi -
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suspect ” and cal l f or “i nt er medi at e scr ut i ny” because t hey
“f r equent l y bear [ ] no r el at i on t o abi l i t y t o per f or m or
cont r i but e t o soci et y” and t hus “gener al l y pr ovi de[ ] no sensi bl e
gr ound f or di f f er ent i al t r eat ment . ” I d. at 440- 41 ( quot i ng
Fr ont i er o v. Ri char dson, 411 U. S. 677, 686 ( 1973) ( pl ur al i t y
opi ni on) ) ; see al so Cr ai g v. Bor en, 429 U. S. 190, 197 ( 1976) .
Laws subj ect t o i nt er medi at e scr ut i ny must be subst ant i al l y
r el at ed t o an i mpor t ant gover nment obj ect i ve. See Uni t ed St at es
v. Vi r gi ni a, 518 U. S. 515, 533 ( 1996) .
But when a r egul at i on adver sel y af f ect s member s of a cl ass
t hat i s not suspect or quasi - suspect , t he r egul at i on i s
“pr esumed t o be val i d and wi l l be sust ai ned i f t he
cl assi f i cat i on dr awn by t he st at ut e i s r at i onal l y r el at ed t o a
l egi t i mat e st at e i nt er est . ” Ci t y of Cl ebur ne, 473 U. S. at 440
( emphasi s added) . Mor eover , t he Supr eme Cour t has made i t cl ear
t hat
wher e i ndi vi dual s i n t he gr oup af f ect ed by a l aw have
di st i ngui shi ng char act er i st i cs r el evant t o i nt er est s
t he St at e has t he aut hor i t y t o i mpl ement , t he cour t s
have been ver y r el uct ant , as t hey shoul d be i n our
f eder al syst em and wi t h our r espect f or t he separ at i on
of power s, t o cl osel y scr ut i ni ze l egi sl at i ve choi ces
as t o whet her , how, and t o what ext ent t hose i nt er est s
shoul d be pur sued. I n such cases, t he Equal
Pr ot ect i on Cl ause r equi r es onl y a r at i onal means t o
ser ve a l egi t i mat e end.
I d. at 441- 42 ( emphasi s added) . Thi s i s based on t he
under st andi ng t hat “equal pr ot ect i on of t he l aws must coexi st
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wi t h t he pr act i cal necessi t y t hat most l egi sl at i on cl assi f i es
f or one pur pose or anot her , wi t h r esul t i ng di sadvant age t o
var i ous gr oups or per sons. ” Romer , 517 U. S. at 631.
The pl ai nt i f f s cont end t hat Vi r gi ni a’ s mar r i age l aws shoul d
be subj ect ed t o some l evel of hei ght ened scr ut i ny because t hey
di scr i mi nat e on t he basi s of sexual or i ent at i on. Yet t hey
concede t hat nei t her t he Supr eme Cour t nor t he Four t h Ci r cui t
has ever appl i ed hei ght ened scr ut i ny t o a cl assi f i cat i on based
on sexual or i ent at i on. They ur ge t hi s cour t t o do so f or t he
f i r st t i me. Gover ni ng pr ecedent , however , counsel s ot her wi se.
I n Romer v. Evans, t he Supr eme Cour t di d not empl oy any
hei ght ened l evel of scr ut i ny i n eval uat i ng a Col or ado
const i t ut i onal amendment t hat pr ohi bi t ed st at e and l ocal
gover nment s f r om enact i ng l egi sl at i on t hat woul d al l ow per sons
t o cl ai m “any mi nor i t y st at us, quot a pr ef er ences, pr ot ect ed
st at us, or . . . di scr i mi nat i on” based on sexual or i ent at i on.
Romer , 517 U. S. at 624. I n hol di ng t he amendment
unconst i t ut i onal under t he Equal Pr ot ect i on Cl ause, t he Cour t
appl i ed r at i onal - basi s r evi ew. See i d. at 631- 33.
And t he Supr eme Cour t made no change as t o t he appr opr i at e
l evel of scr ut i ny i n i t s mor e r ecent deci si on i n Wi ndsor , whi ch
hel d Sect i on 3 of t he Def ense of Mar r i age Act unconst i t ut i onal .
The Cour t was pr esent ed an oppor t uni t y t o al t er t he Romer
st andar d but di d not do so. Al t hough i t di d not st at e t he l evel
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of scr ut i ny bei ng appl i ed, i t di d expl i ci t l y r el y on r at i onal -
basi s cases l i ke Romer and Depar t ment of Agr i cul t ur e v. Mor eno,
413 U. S. 528 ( 1973) . See Wi ndsor , 133 S. Ct . at 2693. I n hi s
di ssent i ng opi ni on i n Wi ndsor , J ust i ce Scal i a t hus not ed, “As
near l y as I can t el l , t he Cour t agr ees [ t hat r at i onal - basi s
r evi ew appl i es] ; i t s opi ni on does not appl y st r i ct scr ut i ny, and
i t s cent r al pr oposi t i ons ar e t aken f r om r at i onal - basi s cases
l i ke Mor eno. ” I d. at 2706 ( Scal i a, J . , di ssent i ng) .
Fi nal l y, we have concl uded t hat r at i onal - basi s r evi ew
appl i es t o cl assi f i cat i ons based on sexual or i ent at i on. See
Veney v. Wyche, 293 F. 3d 726, 731- 32 ( 4t h Ci r . 2002) . I n Veney,
a pr i soner f i l ed a § 1983 act i on al l egi ng t hat he had been
di scr i mi nat ed agai nst on t he basi s of sexual pr ef er ence and
gender . I d. at 729- 30. We not ed t hat t he pl ai nt i f f “[ di d] not
al l ege t hat he [ was] a member of a suspect cl ass. Rat her , he
cl ai m[ ed] t hat he ha[ d] been di scr i mi nat ed agai nst on t he basi s
of sexual pr ef er ence and gender . Out si de t he pr i son cont ext ,
t he f or mer i s subj ect t o r at i onal basi s r evi ew, see Romer v.
Evans, 517 U. S. 620, 631- 32 ( 1996) . ” I d. at 731- 32 ( f oot not e
omi t t ed) .
The vast maj or i t y of ot her cour t s of appeal s have r eached
t he same concl usi on. See Cook v. Gat es, 528 F. 3d 42, 61 ( 1st
Ci r . 2008) ( “Romer nowher e suggest ed t hat t he Cour t r ecogni zed a
new suspect cl ass. Absent addi t i onal gui dance f r om t he Supr eme
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Cour t , we j oi n our si st er ci r cui t s i n decl i ni ng t o r ead Romer as
r ecogni zi ng homosexual s as a suspect cl ass f or equal pr ot ect i on
pur poses”) ; Pr i ce- Cor nel i son v. Br ooks, 524 F. 3d 1103, 1113- 14 &
n. 9 ( 10t h Ci r . 2008) ( “A gover nment of f i ci al
can . . . di st i ngui sh bet ween i t s ci t i zens on t he basi s of
sexual or i ent at i on, i f t hat cl assi f i cat i on bear s a r at i onal
r el at i on t o some l egi t i mat e end” ( i nt er nal quot at i on mar ks
omi t t ed) ) ; Ci t i zens f or Equal Pr ot . v. Br uni ng, 455 F. 3d 859,
865- 66 ( 8t h Ci r . 2006) ( di scussi ng Romer and r eachi ng t he
concl usi on t hat “[ t ] hough t he most r el evant pr ecedent s ar e
mur ky, we concl ude f or a number of r easons t hat [ Nebr aska’ s
same- sex mar r i age ban] shoul d r ecei ve r at i onal - basi s r evi ew
under t he Equal Pr ot ect i on Cl ause, r at her t han a hei ght ened
l evel of j udi ci al scr ut i ny”) ; J ohnson v. J ohnson, 385 F. 3d 503,
532 ( 5t h Ci r . 2004) ( “[ A] st at e vi ol at es t he Equal Pr ot ect i on
Cl ause i f i t di sadvant ages homosexual s f or r easons l acki ng any
r at i onal r el at i onshi p t o l egi t i mat e gover nment al ai ms”) ; Lof t on
v. Sec’ y of Dep’ t of Chi l dr en & Fami l y Ser vs. , 358 F. 3d 804, 818
( 11t h Ci r . 2004) ( “[ A] l l of our si st er ci r cui t s t hat have
consi der ed t he quest i on have decl i ned t o t r eat homosexual s as a
suspect cl ass. Because t he pr esent case i nvol ves nei t her a
f undament al r i ght nor a suspect cl ass, we r evi ew
t he . . . st at ut e under t he r at i onal - basi s st andar d” ( f oot not e
omi t t ed) ) ; Equal . Found. of Gr eat er Ci nci nnat i , I nc. v. Ci t y of
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96

Ci nci nnat i , 128 F. 3d 289, 294, 300 ( 6t h Ci r . 1997) ( appl yi ng
r at i onal - basi s r evi ew i n uphol di ng a ci t y char t er amendment
r est r i ct i ng homosexual r i ght s and st at i ng t hat i n Romer , t he
Cour t “di d not assess Col or ado Amendment 2 under ‘ st r i ct
scr ut i ny’ or ‘ i nt er medi at e scr ut i ny’ st andar ds, but i nst ead
ul t i mat el y appl i ed ‘ r at i onal r el at i onshi p’ st r i ct ur es t o t hat
enact ment and r esol ved t hat t he Col or ado st at e const i t ut i onal
pr ovi si on di d not i nvade any f undament al r i ght and di d not
t ar get any suspect cl ass or quasi - suspect cl ass”) ; Ben- Shal om v.
Mar sh, 881 F. 2d 454, 464 ( 7t h Ci r . 1989) ( appl yi ng r at i onal -
basi s r evi ew pr i or t o t he announcement of Romer ) ; Woodwar d v.
Uni t ed St at es, 871 F. 2d 1068, 1076 ( Fed. Ci r . 1989) ( “The
Supr eme Cour t has i dent i f i ed onl y t hr ee suspect cl asses: r aci al
st at us, nat i onal ancest r y and et hni c or i gi nal , and al i enage.
Two ot her cl assi f i cat i ons have been i dent i f i ed by t he Cour t as
quasi - suspect : gender and i l l egi t i macy. [ Pl ai nt i f f ] woul d have
t hi s cour t add homosexual i t y t o t hat l i st . Thi s we decl i ne t o
do” ( ci t at i ons and f oot not e omi t t ed) ) . But see Smi t hKl i ne
BeechamCor p. v. Abbot t Labs. , 740 F. 3d 471, 481 ( 9t h Ci r . 2014)
( appl yi ng hei ght ened scr ut i ny t o a Bat son chal l enge t hat was
based on sexual or i ent at i on) ; Wi ndsor v. Uni t ed St at es, 699 F. 3d
169, 180- 85 ( 2d Ci r . 2012) ( f i ndi ng i nt er medi at e scr ut i ny
appr opr i at e i n assessi ng t he const i t ut i onal i t y of Sect i on 3 of
t he Def ense of Mar r i age Act ) .
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97

Thus, f ol l owi ng Supr eme Cour t and Four t h Ci r cui t pr ecedent ,
I woul d hol d t hat Vi r gi ni a’ s mar r i age l aws ar e subj ect t o
r at i onal - basi s r evi ew. Appl yi ng t hat st andar d, I concl ude t hat
t her e i s a r at i onal basi s f or t he l aws, as expl ai ned i n Par t
I I I , above. At bot t om, I agr ee wi t h J ust i ce Al i t o’ s r easoni ng
t hat “[ i ] n aski ng t he cour t t o det er mi ne t hat [ Vi r gi ni a’ s
mar r i age l aws ar e] subj ect t o and vi ol at e[ ] hei ght ened scr ut i ny,
[ t he pl ai nt i f f s] t hus ask us t o r ul e t hat t he pr esence of t wo
member s of t he opposi t e sex i s as r at i onal l y r el at ed t o mar r i age
as whi t e ski n i s t o vot i ng or a Y- chr omosome i s t o t he abi l i t y
t o admi ni st er an est at e. That i s a st r i ki ng r equest and one
t hat unel ect ed j udges shoul d pause bef or e gr ant i ng. ” Wi ndsor ,
133 S. Ct . at 2717- 18 ( Al i t o, J . , di ssent i ng) .

V

Whet her t o r ecogni ze same- sex mar r i age i s an ongoi ng and
hi ghl y engaged pol i t i cal debat e t aki ng pl ace acr oss t he Nat i on,
and t he St at es ar e di vi ded on t he i ssue. The maj or i t y of cour t s
have st r uck down st at ut es t hat deny r ecogni t i on of same- sex
mar r i age, doi ng so al most excl usi vel y on t he i dea t hat same- sex
mar r i age i s encompassed by t he f undament al r i ght t o mar r y t hat
i s pr ot ect ed by t he Due Pr ocess Cl ause. Whi l e I expr ess no
vi ewpoi nt on t he mer i t s of t he pol i cy debat e, I do st r ongl y
di sagr ee wi t h t he asser t i on t hat same- sex mar r i age i s subj ect t o
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98

t he same const i t ut i onal pr ot ect i ons as t he t r adi t i onal r i ght t o
mar r y.
Because t her e i s no f undament al r i ght t o same- sex mar r i age
and t her e ar e r at i onal r easons f or not r ecogni zi ng i t , j ust as
t her e ar e r at i onal r easons f or r ecogni zi ng i t , I concl ude t hat
we, i n t he Thi r d Br anch, must al l ow t he St at es t o enact
l egi sl at i on on t he subj ect i n accor dance wi t h t hei r pol i t i cal
pr ocesses. The U. S. Const i t ut i on does not , i n my j udgment ,
r est r i ct t he St at es’ pol i cy choi ces on t hi s i ssue. I f gi ven t he
choi ce, some St at es wi l l sur el y r ecogni ze same- sex mar r i age and
some wi l l sur el y not . But t hat i s, t o be sur e, t he beaut y of
f eder al i sm.
I woul d r ever se t he di st r i ct cour t ’ s j udgment and def er t o
Vi r gi ni a’ s pol i t i cal choi ce i n def i ni ng mar r i age as onl y bet ween
one man and one woman.

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Only the Westlaw citation is currently available.
United States District Court, W.D. Kentucky,
at Louisiville.
Gregory BOURKE, et al., Plaintiffs
v.
Steve BESHEAR, et al., Defendants.
Civil Action No. 3:13–CV–750–H.
Signed Feb. 12, 2014.
Opinion Continuing Stay March 19, 2014.
Background: Four same-sex couples validly mar-
ried outside Kentucky brought § 1983 action chal-
lenging constitutionality of Kentucky's denial of re-
cognition for valid same-sex marriages.
Holdings: The District Court, John G. Heyburn II,
J., held that:
(1) rational basis review applied;
(2) Kentucky's failure to recognize marriages of
same-sex couples validly married outside of Ken-
tucky treated gay and lesbian persons differently in
a way that demeaned them; and
(3) Kentucky's interest in preserving “state's institu-
tion of traditional marriage,” standing alone, was
not rational basis.
Judgment for plaintiffs.
West Headnotes
[1] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and Civil Uni-
ons. Most Cited Cases
Rational basis review applied in § 1983 action
by same-sex couples validly married outside Ken-
tucky, alleging Kentucky's denial of recognition for
their marriages violated Fourteenth Amendment
equal protection. U.S.C.A. Const.Amend. 14; Ky.
Const. § 233A; 42 U.S.C.A. § 1983; KRS 402.005,
402.020(1)(d), 402.040(2), 402.045.
[2] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and Civil Uni-
ons. Most Cited Cases
Marriage 253 2
253 Marriage
253k2 k. Power to Regulate and Control. Most
Cited Cases
Marriage 253 17.5(2)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(2) k. Effect of Foreign Union.
Most Cited Cases
Kentucky's failure to recognize marriages of
same-sex couples validly married outside of Ken-
tucky treated gay and lesbian persons differently in
a way that demeaned them, for purposes of § 1983
action by same-sex couples, alleging violations of
Fourteenth Amendment equal protection; Kentucky
law identified subset of marriages and made them
unequal, and law burdened same-sex spouses by
preventing them from receiving certain state and
federal benefits afforded to other married couples.
U.S.C.A. Const.Amend. 14; Ky. Const. § 233A; 42
U.S.C.A. § 1983; KRS 402.005, 402.020(1)(d),
402.040(2), 402.045.
[3] Constitutional Law 92 3438
92 Constitutional Law
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92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and Civil Uni-
ons. Most Cited Cases
Marriage 253 2
253 Marriage
253k2 k. Power to Regulate and Control. Most
Cited Cases
Marriage 253 17.5(2)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(2) k. Effect of Foreign Union.
Most Cited Cases
Kentucky's interest in preserving “state's insti-
tution of traditional marriage,” standing alone, was
not rational basis required to justify state's failure to
recognize marriages of same-sex couples validly
married outside of Kentucky, and, therefore, those
provisions of Kentucky law were unconstitutional
as in violation of Fourteenth Amendment equal pro-
tection; that governing majority traditionally
viewed practice as immoral was not sufficient reas-
on for upholding laws prohibiting that practice.
U.S.C.A. Const.Amend. 14; Ky. Const. § 233A;
KRS 402.005, 402.020(1)(d), 402.040(2), 402.045.
[4] Constitutional Law 92 2450
92 Constitutional Law
92XX Separation of Powers
92XX(C) Judicial Powers and Functions
92XX(C)1 In General
92k2450 k. Nature and Scope in Gen-
eral. Most Cited Cases
It is emphatically the province and duty of the
judicial department to say what the law is.
[5] Federal Courts 170B 3463
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(F) Supersedeas or Stay of Pro-
ceedings
170Bk3463 k. Other Particular Cases.
Most Cited Cases
Order overturning Kentucky's denial of recog-
nition of valid same-sex marriages performed out-
side Kentucky would be stayed pending appeal to
the Court of Appeals; implementing the order
would have dramatic effects, and risk confusion if
it were later reversed. Fed.Rules Civ.Proc.Rule 62,
28 U.S.C.A.
[6] Federal Courts 170B 3461
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(F) Supersedeas or Stay of Pro-
ceedings
170Bk3461 k. In General. Most Cited
Cases
In determining whether to stay its own judg-
ment or order, the court will consider the following
factors: (1) whether the stay applicant has made a
strong showing of likelihood of success on the mer-
its; (2) whether the applicant will be irreparably in-
jured absent a stay; (3) whether the issuance of a
stay will substantially injure other parties interested
in the proceedings; and (4) where the public interest
lies. Fed.Rules Civ.Proc.Rule 62, 28 U.S.C.A.
[7] Federal Courts 170B 3461
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(F) Supersedeas or Stay of Pro-
ceedings
170Bk3461 k. In General. Most Cited
Cases
The loss of a constitutional right for even min-
imal periods of time constitutes irreparable harm, in
determining whether to stay an order or judgment
pending appeal. Fed.Rules Civ.Proc.Rule 62, 28
U.S.C.A.
West Codenotes
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Held UnconstitutionalKy. Const. § 233A, KRS
402.005, 402.020(1)(d), 402.040(2), 402.045.Dawn
R. Elliott, Fauver Law Office, Daniel J. Canon,
Laura E. Landenwich, Leonard J. Dunman, IV,
Louis Paz Winner, Clay Daniel Walton Adams
PLC, Shannon Renee Fauver, Fauver Law Office,
Louisville, KY, for Plaintiffs.
Brian Thomas Judy, Clay A. Barkley, Kentucky At-
torney General—Civil & Environmental Law Div.,
Frankfort, KY, for Defendants.
MEMORANDUM OPINION
JOHN G. HEYBURN II, District Judge.
*1 Four same-sex couples validly married out-
side Kentucky have challenged the constitutionality
of Kentucky's constitutional and statutory provi-
sions that exclude them from the state recognition
and benefits of marriage available to similarly situ-
ated opposite-sex couples.
While Kentucky unquestionably has the power
to regulate the recognition of civil marriages, those
regulations must comply with the Constitution of
the United States. This court's role is not to impose
its own political or policy judgments on the Com-
monwealth or its people. Nor is it to question the
importance and dignity of the institution of mar-
riage as many see it. Rather, it is to discuss the be-
nefits and privileges that Kentucky attaches to mar-
ital relationships and to determine whether it does
so lawfully under our federal constitution.
From a constitutional perspective, the question
here is whether Kentucky can justifiably deny
same-sex spouses the recognition and attendant be-
nefits it currently awards opposite-sex spouses. For
those not trained in legal discourse, the questions
may be less logical and more emotional. They con-
cern issues of faith, beliefs, and traditions. Our
Constitution was designed both to protect religious
beliefs and prevent unlawful government discrimin-
ation based upon them. The Court will address all
of these issues.
In the end, the Court concludes that Kentucky's
denial of recognition for valid same-sex marriages
violates the United States Constitution's guarantee
of equal protection under the law, even under the
most deferential standard of review. Accordingly,
Kentucky's statutes and constitutional amendment
that mandate this denial are unconstitutional.
I.
No case of such magnitude arrives absent im-
portant history and narrative. That narrative neces-
sarily discusses (1) society's evolution on these is-
sues, (2) a look at those who now demand their
constitutional rights, and (3) an explication of their
claims. For most of Kentucky's history, the limita-
tion of marriage to opposite-sex couples was as-
sumed and unchallenged. Those who might have
disagreed did so in silence. But gradual changes in
our society, political culture and constitutional un-
derstandings have encouraged some to step forward
and assert their rights.
A.
In 1972, two Kentucky women stepped forward
to apply for a marriage license. The Kentucky Su-
preme Court ruled that they were not entitled to
one, noting that Kentucky statutes included neither
a definition of “marriage” nor a prohibition on
same-sex marriage. Jones v. Hallahan, 501 S.W.2d
588, 589 (Ky.App.1973). The court defined
“marriage” according to common usage, consulting
several dictionaries. It held that no constitutional is-
sue was involved and concluded, “In substance, the
relationship proposed ... is not a marriage.” Id. at
590. This view was entirely consistent with the
then-prevailing state and federal jurisprudence. See
Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185,
187 (1971), appeal dismissed for want of a substan-
tial federal question, 409 U.S. 810, 93 S.Ct. 37, 34
L.Ed.2d 65 (1972); Anonymous v. Anonymous, 67
Misc.2d 982, 325 N.Y.S.2d 499, 501 (N.Y.Spec.
Term 1971). A lot has changed since then.
Twenty-one long years later, the Hawaii Su-
preme Court first opened the door to same-sex mar-
riage. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d
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44, 61 (1993) (ruling that the state's prohibition on
same-sex marriage was discriminatory under the
Hawaii Constitution and remanding to allow the
state to justify its position). The reaction was im-
mediate and visceral. In the next few years, twenty-
seven states passed anti-same-sex marriage legisla-
tion,
FN1
and Congress passed the Defense of Mar-
riage Act (DOMA).
FN2
*2 In 1998, Kentucky became one of those
states, enacting new statutory provisions that (1)
defined marriage as between one man and one wo-
man, K.R.S. § 402.005; (2) prohibited marriage
between members of the same sex, K.R.S. §
402.020(1)(d); (3) declared same-sex marriages
contrary to Kentucky public policy, K.R.S. §
402.040(2); and (4) declared same-sex marriages
solemnized out of state void and the accompanying
rights unenforceable, K.R.S. § 402.045.
FN3
Five years later, the Massachusetts Supreme
Judicial Court declared that the state's own ban on
same-sex marriage violated their state constitu-
tion. Goodridge v. Dep't of Pub. Health, 440
Mass. 309, 798 N.E.2d 941, 969 (2003). In May
2004, Massachusetts began marrying same-sex
couples. In response, anti-same-sex marriage ad-
vocates in many states initiated campaigns to enact
constitutional amendments to protect “traditional
marriage.”
FN4
Like-minded Kentuckians began a similar cam-
paign, arguing that although state law already pro-
hibited same-sex marriage, a constitutional amend-
ment would foreclose any possibility that a future
court ruling would allow same-sex marriages to be
performed or recognized in Kentucky. See S. DE-
BATE, 108TH CONG., 2ND SESS. (Ky. 2004),
ECF No. 38–6. The legislature placed such an
amendment on the ballot. It contained only two sen-
tences:
Only a marriage between one man and one wo-
man shall be valid or recognized as a marriage in
Kentucky. A legal status identical or substantially
similar to that of marriage for unmarried indi-
viduals shall not be valid or recognized.
KY. CONST. § 233A. Consequently, the
amendment and Kentucky's statutes have much the
same effect. On November 2, 2004, approximately
74% of participating voters approved the Amend-
ment.
FN5
Kentucky's same-sex marriage legal framework
has not changed since. In the last decade, however,
a virtual tidal wave of legislative enactments and
judicial judgments in other states have repealed, in-
validated, or otherwise abrogated state laws re-
stricting same-sex couples' access to marriage and
marriage recognition.
FN6
B.
In many respects, Plaintiffs here are average,
stable American families.
Gregory Bourke and Michael Deleon reside in
Louisville, Kentucky and have been together for 31
years. They were lawfully married in Ontario,
Canada in 2004 and have two minor children who
are also named Plaintiffs: a 14–year–old girl; and a
15–year–old boy. Jimmy Meade and Luther Bar-
lowe reside in Bardstown, Kentucky and have been
together 44 years. They were lawfully married in
Davenport, Iowa in 2009. Randell Johnson and Paul
Campion reside in Louisville, Kentucky and have
been together for 22 years. They were lawfully
married in Riverside, California in 2008 and have
four minor children who are named Plaintiffs: twin
18–year–old boys; a 14–year–old boy; and a
10–year–old girl. Kimberly Franklin and Tamera
Boyd reside in Cropper, Kentucky.
FN7
They were
lawfully married in Stratford, Connecticut in 2010.
Collectively, they assert that Kentucky's legal
framework denies them certain rights and benefits
that validly married opposite-sex couples enjoy. For
instance, a same-sex surviving spouse has no right
to an inheritance tax exemption and thus must pay
higher death taxes. They are not entitled to the
same healthcare benefits as opposite-sex couples; a
same-sex spouse must pay to add their spouse to
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their employer-provided health insurance, while op-
posite-sex spouses can elect this option free of
charge. Same-sex spouses and their children are ex-
cluded from intestacy laws governing the disposi-
tion of estate assets upon death. Same-sex spouses
and their children are precluded from recovering
loss of consortium damages in civil litigation fol-
lowing a wrongful death. Under Kentucky's work-
ers compensation law, same-sex spouses have no
legal standing to sue and recover as a result of their
spouse's fatal workplace injury.
*3 Moreover, certain federal protections are
available only to couples whose marriage is legally
recognized by their home state. For example, a
same-sex spouse in Kentucky cannot take time off
work to care for a sick spouse under the Family
Medical Leave Act. 29 C.F.R. § 825.122(b). In ad-
dition, a same-sex spouse in Kentucky is denied ac-
cess to a spouse's social security benefits. 42 U.S.C.
§ 416(h)(1)(A)(i). No one denies these disparities.
Finally, Plaintiffs assert additional non-
economic injuries as well. They say that Kentucky's
laws deny them “a dignity and status of immense
import,” stigmatize them, and deny them the stabil-
izing effects of marriage that helps keep couples to-
gether. Plaintiffs also allege injuries to their chil-
dren including: (1) a reduction in family resources
due to the State's differential treatment of their par-
ents, (2) stigmatization resulting from the denial of
social recognition and respect, (3) humiliation, and
(4) harm from only one parent being able to be lis-
ted as an adoptive parent—the other being merely
their legal guardian.
C.
Plaintiffs advance six primary claims under 42
U.S.C. § 1983:(1) deprivation of the fundamental
right to marry in violation of the Due Process
Clause of the Fourteenth Amendment; (2) discrim-
ination on the basis of sexual orientation in viola-
tion of the Equal Protection Clause of the Four-
teenth Amendment;
FN8
(3) discrimination against
same-sex couples in violation of the freedom of as-
sociation guaranteed by the First Amendment; (4)
failure to recognize valid public records of other
states in violation of the Full Faith and Credit
Clause of Article IV, Section 1; (5) deprivation of
the right to travel in violation of the Due Process
Clause of the Fourteenth Amendment; and (6) es-
tablishment of a religious definition of marriage in
violation of the Establishment Clause of the First
Amendment.
FN9
Plaintiffs seek an order enjoining
the State from enforcing the pertinent constitutional
and statutory provisions.
While Plaintiffs have many constitutional the-
ories, the Fourteenth Amendment's Equal Protec-
tion Clause provides the most appropriate analytical
framework.
FN10
If equal protection analysis de-
cides this case, the Court need not address any oth-
ers. No one disputes that the same-sex couples who
have brought this case are treated differently under
Kentucky law than those in comparable opposite-
sex marriages. No one seems to disagree that, as
presented here, the equal protection issue is purely
a question of law. The Court must decide whether
the Kentucky Constitution and statutes violate
Plaintiffs' federal constitutional rights.
II.
*4 [1] Before addressing the substance of equal
protection analysis, the Court must first determine
the applicable standard of review. Rational basis re-
view applies unless Kentucky's laws affect a sus-
pect class of individuals or significantly interfere
with a fundamental right. Zablocki v. Redhail, 434
U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)
.
A.
The Kentucky provisions challenged here im-
pose a classification based on sexual orientation.
Barely seven months ago, the Supreme Court issued
a historic opinion applying equal protection analys-
is to federal non-recognition of same-sex marriages.
United States v. Windsor, ––– U.S. ––––, 133 S.Ct.
2675, 186 L.Ed.2d 808 (2013).
FN11
Although the
majority opinion covered many topics, it never
clearly explained the applicable standard of review.
Some of Justice Kennedy's language corresponded
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to rational basis review. See id. at 2696 (“no legit-
imate purpose overcomes the purpose and effect to
disparage and to injure....”). However, the scrutiny
that the Court actually applied does not so much re-
semble it. See id. at 2706 (Scalia, J., dissenting)
(the majority “does not apply strict scrutiny, and
[although] its central propositions are taken from
rational basis cases ... the Court certainly does not
apply anything that resembles that deferential
framework.”) (emphasis in original). So, we are left
without a clear answer.
The Sixth Circuit has said that sexual orienta-
tion is not a suspect classification and thus is not
subject to heightened scrutiny. Davis v. Prison
Health Servs., 679 F.3d 433, 438 (6th Cir.2012)
(citing Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250, 261 (6th Cir.2006)). Though Davis
concerned slightly different circumstances, it would
seem to limit the Court's independent assessment of
the question. Accord Bassett v. Snyder, 951
F.Supp.2d 939, 961 (E.D.Mich.2013).
It would be no surprise, however, were the
Sixth Circuit to reconsider its view. Several theor-
ies support heightened review. Davis based its de-
cision on a line of cases relying on Bowers v. Hard-
wick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140
(1986), which has since been overruled by
Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct.
2472, 156 L.Ed.2d 508 (2003) (“ Bowers was not
correct when it was decided, and it is not correct
today.”).
FN12
Recently, several courts, including
the Ninth Circuit, have held that classifications
based on sexual orientation are subject to
heightened scrutiny. See SmithKline Beecham
Corp. v. Abbott Labs., 740 F.3d 471, 483 (9th
Cir.2014) (finding that Windsor employed
heightened scrutiny).
Moreover, a number of reasons suggest that
gay and lesbian individuals do constitute a suspect
class. They seem to share many characteristics of
other groups that are afforded heightened scrutiny,
such as historical discrimination, immutable or dis-
tinguishing characteristics that define them as a dis-
crete group, and relative political powerlessness.
See Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct.
2727, 91 L.Ed.2d 527 (1986). Further, their com-
mon characteristic does not impair their ability to
contribute to society. See City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 440–41, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985).
*5 All of these arguments have merit. To re-
solve the issue, however, the Court must look to
Windsor and the Sixth Circuit. In Windsor, no clear
majority of Justices stated that sexual orientation
was a suspect category.
B.
Supreme Court jurisprudence suggests that the
right to marry is a fundamental right. See Loving v.
Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967) (“Marriage is one of the ‘basic civil
rights of man,’ fundamental to our existence and
survival” (quoting Skinner v. Oklahoma ex rel. Wil-
liamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86
L.Ed. 1655 (1942))); Meyer v. Nebraska, 262 U.S.
390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (the
right to marry is a central part of Due Process
liberty); Maynard v. Hill, 125 U.S. 190, 205, 8
S.Ct. 723, 31 L.Ed. 654 (1888) (marriage creates
“the most important relation in life”). The right to
marry also implicates the right to privacy and the
right to freedom of association. Griswold v. Con-
necticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965) (marriage involves a “right of
privacy older than the Bill of Rights”); M.L.B. v.
S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996) (“Choices about marriage ...
are among associational rights this Court has
ranked ‘of basic importance in our society’ ” and
are protected under the Fourteenth Amendment
(quoting Boddie v. Connecticut, 401 U.S. 371, 376,
91 S.Ct. 780, 28 L.Ed.2d 113 (1971))).
Despite this comforting language, neither the
Supreme Court nor the Sixth Circuit has stated that
the fundamental right to marry includes a funda-
mental right to marry someone of the same sex.
Moreover, Plaintiffs do not seek the right to marry
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in Kentucky. Rather, they challenge the State's lack
of recognition for their validly solemnized mar-
riages.
FN13
To resolve the issue, the Court must again look
to Windsor. In Windsor, the Supreme Court did not
clearly state that the non-recognition of marriages
under Section 3 of DOMA implicated a fundament-
al right, much less significantly interfered with one.
Therefore, the Court will apply rational basis re-
view. Ultimately, the result in this case is unaf-
fected by the level of scrutiny applied.
C.
*6 Under this standard, the Court must determ-
ine whether these Kentucky laws are rationally re-
lated to a legitimate government purpose. Plaintiffs
have the burden to prove either that there is no con-
ceivable legitimate purpose for the law or that the
means chosen to effectuate a legitimate purpose are
not rationally related to that purpose. This standard
is highly deferential to government activity but is
surmountable, particularly in the context of dis-
crimination based on sexual orientation. “Rational
basis review, while deferential, is not ‘toothless.’ ”
Peoples Rights Org., Inc. v. City of Columbus, 152
F.3d 522, 532 (6th Cir.1998) (quoting Mathews v.
Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49
L.Ed.2d 651 (1976)). This search for a rational rela-
tionship “ensure[s] that classifications are not
drawn for the purpose of disadvantaging the group
burdened by the law.” Romer v. Evans, 517 U.S.
620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
Even under this most deferential standard of re-
view, courts must still “insist on knowing the rela-
tion between the classification adopted and the ob-
ject to be attained.” Id. at 632, 116 S.Ct. 1620
(emphasis added).
III.
In a democracy, the majority routinely enacts
its own moral judgments as laws. Kentucky's cit-
izens have done so here. Whether enacted by a le-
gislature or by public referendum, those laws are
subject to the guarantees of individual liberties con-
tained within the United States Constitution. Wind-
sor, 133 S.Ct. at 2691; see e.g., Loving, 388 U.S. at
12, 87 S.Ct. 1817 (statute prohibiting interracial
marriage violated equal protection).
Ultimately, the focus of the Court's attention
must be upon Justice Kennedy's majority opinion in
Windsor. While Justice Kennedy did not address
our specific issue, he did address many others
closely related. His reasoning about the legitimacy
of laws excluding recognition of same-sex mar-
riages is instructive. For the reasons that follow, the
Court concludes that Kentucky's laws are unconsti-
tutional.
A.
In Windsor, Justice Kennedy found that by
treating same-sex married couples differently than
opposite-sex married couples, Section 3 of DOMA
“violate[d] basic due process and equal protection
principles applicable to the Federal Government.”
Windsor, 133 S.Ct. at 2693. His reasoning estab-
lishes certain principles that strongly suggest the
result here.
FN14
[2] The first of those principles is that the actu-
al purpose of Kentucky's laws is relevant to this
analysis to the extent that their purpose and princip-
al effect was to treat two groups differently. Id. As
described so well by substituting our particular cir-
cumstances within Justice Kennedy's own words,
that principle applies quite aptly here:
[Kentucky's laws'] principal effect is to identify a
subset of state-sanctioned marriages and make
them unequal. The principal purpose is to impose
inequality, not for other reasons like government-
al efficiency.
*7 Id. at 2694. The legislative history of Ken-
tucky's laws clearly demonstrates the intent to per-
manently prevent the recognition of same-sex mar-
riage in Kentucky.
FN15
Whether that purpose also
demonstrates an obvious animus against same-sex
couples may be debatable. But those two motiva-
tions are often different sides of the same coin.
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The second principle is that such an amend-
ment demeans one group by depriving them of
rights provided for others. As Justice Kennedy
would say:
Responsibilities, as well as rights, enhance the
dignity and integrity of the person. And
[Kentucky's laws] contrive[ ] to deprive some
couples [married out of state], but not other
couples [married out of state], of both rights and
responsibilities. By creating two contradictory
marriage regimes within the same State,
[Kentucky's laws] force[ ] same-sex couples to
live as married for the purpose of [federal law]
but unmarried for the purpose of [Kentucky]
law.... This places same-sex couples [married out
of state] in an unstable position of being in a
second-tier marriage [in Kentucky]. The differen-
tiation demeans the couple, whose moral and
sexual choices the Constitution protects, see
Lawrence, 539 U.S. 558, 123 S.Ct. 2472.
Id. Under Justice Kennedy's logic, Kentucky's
laws burden the lives of same-sex spouses by pre-
venting them from receiving certain state and feder-
al governmental benefits afforded to other married
couples. Id. Those laws “instruct[ ] all ... officials,
and indeed all persons with whom same-sex
couples interact, including their own children, that
their marriage is less worthy than the marriages of
others.” Id. at 2696. Indeed, Justice Kennedy's ana-
lysis would seem to command that a law refusing to
recognize valid out-of-state same-sex marriages has
only one effect: to impose inequality.
From this analysis, it is clear that Kentucky's
laws treat gay and lesbian persons differently in a
way that demeans them. Absent a clear showing of
animus, however, the Court must still search for
any rational relation to a legitimate government
purpose.
B.
[3] The State's sole justification for the chal-
lenged provisions is: “the Commonwealth's public
policy is rationally related to the legitimate govern-
ment interest of preserving the state's institution of
traditional marriage.” Certainly, these laws do fur-
ther that policy.
That Kentucky's laws are rooted in tradition,
however, cannot alone justify their infringement on
individual liberties. 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.”); Williams v. Illinois, 399 U.S. 235, 239,
90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (“[N]either
the antiquity of a practice nor the fact of steadfast
legislative and judicial adherence to it through the
centuries insulates it from constitutional attack....”).
Over the past forty years, the Supreme Court has
refused to allow mere tradition to justify marriage
statutes that violate individual liberties. See, e.g.,
Loving, 388 U.S. at 12, 87 S.Ct. 1817 (states cannot
prohibit interracial marriage); Lawrence, 539 U.S.
at 577–78, 123 S.Ct. 2472 (states cannot criminal-
ize private, consensual sexual conduct); Nev. Dep't
of Human Res. v. Hibbs, 538 U.S. 721, 733–35, 123
S.Ct. 1972, 155 L.Ed.2d 953 (2003) (states cannot
act based on stereotypes about women's assumption
of primary childcare responsibility). Justice
Kennedy restated the principle most clearly: “
‘[T]he fact that the governing majority in a State
has traditionally viewed a particular practice as im-
moral is not a sufficient reason for upholding a law
prohibiting the practice....’ ” Lawrence, 539 U.S. at
577, 123 S.Ct. 2472 (quoting Bowers, 478 U.S. at
216, 106 S.Ct. 2841 (Stevens, J., dissenting)).
Justice Scalia was more blunt, stating that “
‘preserving the traditional institution of marriage’
is just a kinder way of describing the State's moral
disapproval of same-sex couples.” Id. at 601, 123
S.Ct. 2472 (Scalia, J., dissenting) (emphasis in ori-
ginal).
Usually, as here, the tradition behind the chal-
lenged law began at a time when most people did
not fully appreciate, much less articulate, the indi-
vidual rights in question. For years, many states had
a tradition of segregation and even articulated reas-
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ons why it created a better, more stable society.
Similarly, many states deprived women of their
equal rights under the law, believing this to prop-
erly preserve our traditions. In time, even the most
strident supporters of these views understood that
they could not enforce their particular moral views
to the detriment of another's constitutional rights.
Here as well, sometime in the not too distant future,
the same understanding will come to pass.
C.
*8 The Family Trust Foundation of Kentucky,
Inc. submitted a brief as amicus curiae which cast a
broader net in search of reasons to justify Ken-
tucky's laws. It offered additional purported legit-
imate interests including: responsible procreation
and childrearing, steering naturally procreative rela-
tionships into stable unions, promoting the optimal
childrearing environment, and proceeding with cau-
tion when considering changes in how the state
defines marriage. These reasons comprise all those
of which the Court might possibly conceive.
The State, not surprisingly, declined to offer
these justifications, as each has failed rational basis
review in every court to consider them post- Wind-
sor, and most courts pre- Windsor. See, e.g., Bishop
v. United States ex rel. Holder, 962 F.Supp.2d
1252, 1290–96 (N.D.Okla.2014) (responsible pro-
creation and childrearing, steering naturally procre-
ative relationships into stable unions, promoting the
ideal family unit, and avoiding changes to the insti-
tution of marriage and unintended consequences);
Kitchen v. Herbert, 961 F.Supp.2d 1181, 1211–14
(D.Utah 2013) (responsible procreation, optimal
childrearing, proceeding with caution); Obergefell
v. Wymyslo, 962 F.Supp.2d 968, 993–95 (S.D.Ohio
2013) (optimal childrearing). The Court fails to see
how having a family could conceivably harm chil-
dren. Indeed, Justice Kennedy explained that it was
the government's failure to recognize same-sex
marriages that harmed children, not having married
parents who happened to be of the same sex:
[I]t humiliates tens of thousands of children now
being raised by same-sex couples. The law in
question makes it even more difficult for the chil-
dren to understand the integrity and closeness of
their own family and its concord with other fam-
ilies in their community and in their daily lives.
Windsor, 133 S.Ct. at 2694.
As in other cases that have rejected the
amicus's arguments, no one in this case has offered
factual or rational reasons why Kentucky's laws are
rationally related to any of these purposes. Ken-
tucky does not require proof of procreative ability
to have an out-of-state marriage recognized. The
exclusion of same-sex couples on procreation
grounds makes just as little sense as excluding post-
menopausal couples or infertile couples on procre-
ation grounds. After all, Kentucky allows gay and
lesbian individuals to adopt children. And no one
has offered evidence that same-sex couples would
be any less capable of raising children or any less
faithful in their marriage vows. Compare this with
Plaintiffs, who have not argued against the many
merits of “traditional marriage.” They argue only
that they should be allowed to enjoy them also.
Other than those discussed above, the Court
cannot conceive of any reasons for enacting the
laws challenged here. Even if one were to conclude
that Kentucky's laws do not show animus, they can-
not withstand traditional rational basis review.
D.
*9 The Court is not alone in its assessment of
the binding effects of Supreme Court jurisprudence,
particularly Justice Kennedy's substantive analysis
articulated over almost two decades.
Nine state and federal courts have reached con-
clusions similar to those of this Court. After the
Massachusetts Supreme Judicial Court led the way
by allowing same-sex couples to marry, five years
later the Connecticut Supreme Court reached a sim-
ilar conclusion regarding its state constitution on
equal protection grounds. Kerrigan v. Comm'r of
Pub. Health, 289 Conn. 135, 957 A.2d 407, 482
(2008). Other courts soon began to follow. See
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Varnum v. Brien, 763 N.W.2d 862, 907 (Iowa
2009) (holding that banning same-sex marriage vi-
olated equal protection as guaranteed by the Iowa
Constitution); Perry v. Schwarzenegger, 704
F.Supp.2d 921, 1003 (N.D.Cal.2010) (holding that
the state's constitutional ban on same-sex marriage
enacted via popular referendum violated the Equal
Protection and Due Process clauses of the Four-
teenth Amendment to the United States Constitu-
tion) aff'd sub nom. Perry v. Brown, 671 F.3d 1052
(9th Cir.2012) vacated and remanded sub nom.
Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct.
2652, 186 L.Ed.2d 768 (2013); Garden State
Equality v. Dow, 434 N.J.Super. 163, 82 A.3d 336,
367–68 (2013) (holding that disallowing same-sex
marriage violated the New Jersey Constitution, and
the governor withdrew the state's appeal); Griego v.
Oliver, 316 P.3d 865, 872 (N.M.2013) (holding that
denying same-sex couples the right to marry viol-
ated the state constitution's equal protection clause).
Over the last several months alone, three feder-
al district courts have issued well-reasoned opin-
ions supporting the rights of non-heterosexual per-
sons to marriage equality in similar circumstances.
See Bishop, 962 F.Supp.2d at 1258–59 (holding that
the state's ban on same-sex marriage violated the
Equal Protection Clause of the Fourteenth Amend-
ment); Obergefell, 962 F.Supp.2d at 972–74
(holding that Ohio's constitutional and statutory ban
on the recognition of same-sex marriages validly
performed out-of-state was unconstitutional as ap-
plied to Ohio death certificates); Kitchen, 961
F.Supp.2d at 1187–88 (holding that the state's con-
stitutional and statutory ban on same-sex marriage
violated the Equal Protection and Due Process
clause of the Fourteenth Amendment).
Indeed, to date, all federal courts that have con-
sidered same-sex marriage rights post- Windsor
have ruled in favor of same-sex marriage rights.
This Court joins in general agreement with their
analyses.
IV.
*10 For many, a case involving these issues
prompts some sincere questions and concerns. After
all, recognizing same-sex marriage clashes with
many accepted norms in Kentucky—both in society
and faith. To the extent courts clash with what
likely remains that majority opinion here, they risk
some of the public's acceptance. For these reasons,
the Court feels a special obligation to answer some
of those concerns.
A.
Many Kentuckians believe in “traditional mar-
riage.” Many believe what their ministers and scrip-
tures tell them: that a marriage is a sacrament insti-
tuted between God and a man and a woman for so-
ciety's benefit. They may be confused—even
angry—when a decision such as this one seems to
call into question that view. These concerns are un-
derstandable and deserve an answer.
Our religious beliefs and societal 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 tra-
ditional 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 accom-
modates our individual faith's definition of mar-
riage while preventing the government from unlaw-
fully treating us differently. This is hardly surpris-
ing since it was written by people who came to
America to find both freedom of religion and free-
dom from it.
B.
Many others may wonder about the future of
marriages generally and the right of a religion or an
individual church to set its own rules governing it.
For instance, must Kentucky now allow same-sex
couples to marry in this state? Must churches now
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marry same-sex couples? How will this decision
change or affect my marriage?
First, the Court was not presented with the par-
ticular question whether Kentucky's ban on same-
sex marriage is constitutional. However, there is no
doubt that Windsor and this Court's analysis sug-
gest a possible result to that question.
Second, allowing same-sex couples the state re-
cognition, benefits, and obligations of marriage
does not in any way diminish those enjoyed by op-
posite-sex married couples. No one has offered any
evidence that recognizing same-sex marriages will
harm opposite-sex marriages, individually or col-
lectively. One's belief to the contrary, however sin-
cerely held, cannot alone justify denying a selected
group their constitutional rights.
Third, no court can require churches or other
religious institutions to marry same-sex couples or
any other couple, for that matter. This is part of our
constitutional guarantee of freedom of religion.
That decision will always be based on religious
doctrine.
What this opinion does, however, is make real
the promise of equal protection under the law. It
will profoundly affect validly married same-sex
couples' experience of living in the Commonwealth
and elevate their marriage to an equal status in the
eyes of state law.
C.
*11 Many people might assume that the cit-
izens of a state by their own state constitution can
establish the basic principles of governing their
civil life. How can a single judge interfere with that
right?
It is true that the citizens have wide latitude to
codify their traditional and moral values into law.
In fact, until after the Civil War, states had almost
complete power to do so, unless they encroached on
a specific federal power. See Barron v. City of Bal-
timore, 32 U.S. 243, 250–51, 7 Pet. 243, 8 L.Ed.
672 (1833). However, in 1868 our country adopted
the Fourteenth Amendment, which prohibited state
governments from infringing upon our individual
rights. Over the years, the Supreme Court has said
time and time again that this Amendment makes the
vast majority of the original Bill of Rights and oth-
er fundamental rights applicable to state govern-
ments.
In fact, the first justice to articulate this view
was one of Kentucky's most famous sons, Justice
John Marshall Harlan. See Hurtado v. California,
110 U.S. 516, 558, 4 S.Ct. 111, 28 L.Ed. 232
(1884) (Harlan, J., dissenting). He wrote that the
Fourteenth Amendment “added greatly to the dig-
nity and glory of American citizenship, and to the
security of personal liberty, by declaring that ... ‘no
state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any
person of life, liberty or property without due pro-
cess of law, nor deny to any person within its juris-
diction the equal protection of the laws.’ ” Plessy v.
Ferguson, 163 U.S. 537, 555, 16 S.Ct. 1138, 41
L.Ed. 256 (1896) (Harlan, J., dissenting) (quoting
U.S. CONST. amend. XIV).
[4] So now, the Constitution, including its
equal protection and due process clauses, protects
all of us from government action at any level,
whether in the form of an act by a high official, a
state employee, a legislature, or a vote of the people
adopting a constitutional amendment. As Chief
Justice John Marshall said, “[i]t is emphatically the
province and duty of the judicial department to say
what the law is.” Marbury v. Madison, 1 Cranch
137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803). Initially
that decision typically rests with one judge; ulti-
mately, other judges, including the justices of the
Supreme Court, have the final say. That is the way
of our Constitution.
D.
For many others, this decision could raise basic
questions about our Constitution. For instance, are
courts creating new rights? Are judges changing the
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meaning of the Fourteenth Amendment or our Con-
stitution? Why is all this happening so suddenly?
The answer is that the right to equal protection
of the laws is not new. History has already shown
us that, while the Constitution itself does not
change, our understanding of the meaning of its
protections and structure evolves.
FN16
If this were
not so, many practices that we now abhor would
still exist.
*12 Contrary to how it may seem, there is
nothing sudden about this result. The body of con-
stitutional jurisprudence that serves as its founda-
tion has evolved gradually over the past forty-seven
years. The Supreme Court took its first step on this
journey in 1967 when it decided the landmark case
Loving v. Virginia, which declared that Virginia's
refusal to marry mixed-race couples violated equal
protection. The Court affirmed that even areas such
as marriage, traditionally reserved to the states, are
subject to constitutional scrutiny and “must respect
the constitutional rights of persons.” Windsor, 133
S.Ct. at 2691 (citing Loving ).
Years later, in 1996, Justice Kennedy first
emerged as the Court's swing vote and leading ex-
plicator of these issues in Romer v. Evans. Romer,
517 U.S. at 635, 116 S.Ct. 1620 (holding that Col-
orado's constitutional amendment prohibiting all le-
gislative, executive, or judicial action designed to
protect homosexual persons violated the Equal Pro-
tection Clause). He explained that if the “
‘constitutional conception of ‘equal protection of
the laws' means anything, it must at the very least
mean that a bare ... desire to harm a politically un-
popular group cannot constitute a legitimate gov-
ernmental interest.’ ” Id. at 634–35, 116 S.Ct. 1620
(emphasis in original) (quoting Dep't of Agric. v.
Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37
L.Ed.2d 782 (1973)). These two cases were the vir-
tual roadmaps for the cases to come next.
In 2003, Justice Kennedy, again writing for the
majority, addressed another facet of the same issue
in Lawrence v. Texas, explaining that sexual rela-
tions are “but one element in a personal bond that is
more enduring” and holding that a Texas statute
criminalizing certain sexual conduct between per-
sons of the same sex violated the Constitution. 539
U.S. at 567, 123 S.Ct. 2472. Ten years later came
Windsor. And, sometime in the next few years at
least one other Supreme Court opinion will likely
complete this judicial journey.
So, as one can readily see, judicial thinking on
this issue has evolved ever so slowly. That is be-
cause courts usually answer only the questions that
come before it. Judge Oliver Wendell Holmes aptly
described this process: “[J]udges do and must legis-
late, but they can do so only interstitially; they are
confined from molar to molecular motions.” S. Pac.
Co. v. Jensen, 244 U.S. 205, 221, 37 S.Ct. 524, 61
L.Ed. 1086 (1917) (Holmes, J., dissenting). In
Romer, Lawrence, and finally, Windsor, the Su-
preme Court has moved interstitially, as Holmes
said it should, establishing the framework of cases
from which district judges now draw wisdom and
inspiration. Each of these small steps has led to this
place and this time, where the right of same-sex
spouses to the state-conferred benefits of marriage
is virtually compelled.
The Court will enter an order consistent with
this Memorandum Opinion.
MEMORANDUM OPINION AND ORDER
*13 [5] Defendant, the Governor of Kentucky,
has moved for a stay of enforcement of this Court's
February 27, 2014 final order, pending its appeal to
the United States Court of Appeals for the Sixth
Circuit. On February 28, the Court granted a stay
up to and including March 20, 2014, in order to al-
low the state a reasonable time to implement the or-
der. Defendant moved the Court for an extension of
the stay on March 14, and the parties appeared be-
fore the Court for a telephonic hearing on the mat-
ter on March 17. Defendant filed a notice of appeal
on March 18.
I.
[6] Federal Rule of Civil Procedure 62 em-
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powers this Court to stay enforcement of its own
orders and judgments. Particularly in civil matters,
there are no rigid rules that govern such a stay, and
courts have a fair amount of discretion. The Court
will consider the following factors: (1) whether the
stay applicant has made a strong showing of likeli-
hood of success on the merits; (2) whether the ap-
plicant will be irreparably injured absent a stay; (3)
whether the issuance of a stay will substantially in-
jure other parties interested in the proceedings; and
(4) where the public interest lies. Hilton v. Braun-
skill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95
L.Ed.2d 724 (1987); Baker v. Adams Cnty./Ohio
Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002).
Here, the applicant has not made a strong
showing of a likelihood of success on the merits.
The district courts are so far unanimous, but no
court of appeals has issued an opinion. So, one
must admit that ultimate resolution of these issues
is unknown.
FN1
The applicant contends that the state will suffer
irreparable harm—“chaos”—if the stay is not ex-
tended. It must demonstrate “irreparable harm that
decidedly outweighs the harm that will be inflicted
on others if a stay is granted.” Family Trust Found.
of Ky., Inc. v. Ky. Judicial Conduct Comm'n, 388
F.3d 224, 227 (6th Cir.2004) (quoting Baker, 310
F.3d at 928) (internal quotation marks omitted). To
illustrate the irreparable harm, the applicant cites
the potential granting and then taking away of
same-sex marriage recognition to couples. It also
cites the potential impacts on “businesses and ser-
vices where marital status is relevant, including
health insurance companies, creditors, [and] estate
planners....” This is a legitimate concern.
[7] On the other hand, Plaintiff same-sex
couples argue that they would rather have their
marriages recognized for a short amount of time
than never at all. Plaintiffs contend that the irrepar-
able harms cited by Defendant are actually minor
bureaucratic inconveniences which cannot over-
come their constitutional rights. The Court agrees
that further delay would be a delay in vindicating
Plaintiffs' constitutional rights and obtaining access
to important government benefits. The loss of a
constitutional right for even minimal periods of
time constitutes irreparable harm. See Connection
Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th
Cir.1998) (citing Elrod v. Burns, 427 U.S. 347, 373,
96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)).
Finally, the applicant argues that avoiding
chaos and uncertainty is in the public's best interest.
However, as the Court previously noted, the public
interest is twofold: that the Constitution be upheld,
and that changes in the law be implemented con-
sistently and without undue confusion. The Court
has concerns about implementing an order which
has dramatic effects, and then having that order re-
versed, which is one possibility. Under such cir-
cumstances, rights once granted could be cast in
doubt.
*14 In this Court's view, the application of
these four factors is mixed.
II.
Another issue of great concern is the signific-
ance of the Supreme Court's stay of the district
court's injunction in Herbert v. Kitchen, ––– U.S.
––––, 134 S.Ct. 893, 187 L.Ed.2d 699 (2014). Since
then, three additional cases in which Plaintiffs
sought the issuance of marriage licenses have
entered stays on their rulings pending appeal. See
Bishop v. United States ex rel. Holder, 962
F.Supp.2d 1252, 1295–96 (N.D.Okla.2014); Bostic
v. Rainey, 970 F.Supp.2d 456, ––––, 2014 WL
561978, at *23 (E.D.Va.2014); De Leon v. Perry,
SA–13–CA–00982–OLG, ––– F.Supp.2d ––––,
––––, 2014 WL 715741, at *28 (W.D.Tex. Feb. 26,
2014). The applicant says that it is precedential
here.
Plaintiffs make a compelling argument that, at
the time of the Supreme Court's guidance in Kit-
chen, the Tenth Circuit had already directed exped-
ited briefing and argument. Here, there is no such
guarantee of expedited briefing before the Sixth
Circuit. It may be years before the appeals process
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is completed. Also, our case is different than Kit-
chen. Nevertheless, the Supreme Court has sent a
strong message by its unusual intervention and or-
der in that case. It cannot be easily ignored.
Perhaps it is difficult for Plaintiffs to under-
stand how rights won can be delayed. It is a truth
that our judicial system can act with stunning
quickness, as this Court has; and then with some-
times maddening slowness. One judge may decide a
case, but ultimately others have a final say. It is the
entire process, however, which gives our judicial
system and our judges such high credibility and ac-
ceptance. This is the way of our Constitution. It is
that belief which ultimately informs the Court's de-
cision to grant a stay. It is best that these moment-
ous changes occur upon full review, rather than risk
premature implementation or confusing changes.
That does not serve anyone well.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that the stay of this
Court's February 27, 2014 final order is extended
until further order of the Sixth Circuit.
FN1. See ALA.CODE § 30–1–19 (2013);
ARIZ.REV.STAT. ANN. §§ 25–101, –125
(2013); ARK.CODE ANN. §§
9–11–208(b), –107(b) (West 2013);
COLO.REV.STAT. ANN. § 14–2–104
(West 2013); FLA. STAT. ANN.. §
741.212 (West 2013); GA.CODE ANN. §
19–3–3.1 (West 2013); HAW.REV.STAT.
§§ 572–1, –1.6 (West 2013) (repealed
2011); IDAHO CODE ANN. § 32–209
(West 2013); 750 ILL. COMP. STAT.
ANN.N. 5/212(a)(5), 5/213.1 (West 2013);
IND.CODE ANN. § 31–11–1–1 (West
2013); KAN. STAT. ANN. . §§ 23–2501,
23–2508 (West 2013); LA. CIV.CODE
ANN. art. 89, 3520 (2013); MICH. COMP.
LAWS ANN. §§ 551.1, .271(2) (West
2013); MISS.CODE ANN. §§ 93–1–1(2)
(West 2013); MO. ANN. STAT. § 451.022
(West 2013); MONT.CODE ANN. §
40–1–401(1)(d) (2013); N.C. GEN.STAT.
ANN. § 51–1.2 (West 2013); N.D.
CENT.CODE ANN. §§ 14–03–01, –08
(West 2013); OKLA. STAT. tit. 43, § 3.1
(2013); 23 PA. CONS.STAT. ANN. §§
1102, 1704 (West 2013); S.C.CODE ANN.
§§ 20–1–10, –15 (2013); S.D. CODIFIED
LAWS §§ 25–1–1, –38 (2013);
TENN.CODE ANN. § 36–3–113 (West
2013); TEX. FAM.CODE ANN. §§ 1.103,
2.001 (West 2013); UTAH CODE ANN. §
30–1–2 (West 2013), invalidated by Kit-
chen v. Herbert, 961 F.Supp.2d 1181
(D.Utah 2013); VA.CODE ANN. §
20–45.2 (West 2013); W. VA.CODE
ANN. §§ 48–2–104, –401 (West 2013).
FN2. The bill included commentary that
stated: “a redefinition of marriage in
Hawaii to include homosexual couples
could make such couples eligible for a
whole range of federal rights and benefits.”
H.R.REP. NO. 104–664, at 4–11, 1996
U.S.C.C.A.N. 2905, 2914 (1996).
FN3. The pertinent text of these provisions
is:
402.005: As used and recognized in the
law of the Commonwealth, “marriage”
refers only to the civil status, condition,
or relation of one (1) man and one (1)
woman....
402.020:(1) Marriage is prohibited and
void (d) Between members of the same
sex.
402.040:(2) A marriage between mem-
bers of the same sex is against Kentucky
public policy and shall be subject to the
prohibitions established in K.R.S.
402.045.
402.045:(1) A marriage between mem-
bers of the same sex which occurs in an-
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other jurisdiction shall be void in Ken-
tucky. (2) Any rights granted by virtue
of the marriage, or its termination, shall
be unenforceable in Kentucky courts.
KY.REV.STAT. ANN. §§ 402.005–.045
(West 2013).
FN4. States passing constitutional amend-
ments banning same-sex marriage in 2004
include Arkansas, Georgia, Kentucky,
Louisiana, Michigan, Mississippi, Mis-
souri, Montana, North Dakota, Ohio, Ok-
lahoma, Oregon, and Utah. Other states
followed suit: in 2005, Kansas and Texas;
in 2006, Alabama, Colorado, Idaho, South
Carolina, South Dakota, Tennessee, Vir-
ginia, and Wisconsin; in 2008, Arizona,
California, and Florida; and in 2012, North
Carolina. Alaska passed its constitutional
ban in 1998, and Nebraska and Nevada did
so in 2000. California's, Utah's, and Ok-
lahoma's constitutional bans have since
been overturned.
FN5. 53.6% of Kentucky's registered
voters participated.
FN6. Recognition by legislation and by
popular vote has occurred in Vermont
(Apr. 7, 2009), New Hampshire (June 3,
2009), District of Columbia (Dec. 18,
2009), New York (June 24, 2011), Wash-
ington (Nov. 6, 2012), Maine (Nov. 6,
2012), Maryland (Nov. 6, 2012), Delaware
(May 7, 2013), Minnesota (May 14, 2013),
Rhode Island (May 2, 2013), Hawaii (Nov.
13, 2013), and Illinois (Nov. 20, 2013)
(effective June 1, 2014). State and federal
court judgments have occurred in Mas-
sachusetts, Connecticut, Iowa, California,
New Jersey, New Mexico, Utah, and Ok-
lahoma. The Utah and Oklahoma decisions
are currently being appealed.
FN7. Plaintiffs Franklin and Boyd are res-
idents of Shelby County and originally
filed suit in the Eastern District of Ken-
tucky. Judge Gregory Van Tatenhove gran-
ted Plaintiffs and Defendants' joint motion
for change of venue pursuant to 28 U.S.C.
§ 1404 to the Western District of Ken-
tucky. The case was assigned to Judge
Thomas Russell, who transferred it here in
the interest of judicial economy and to
equalize the docket. Although the cases
were not consolidated, Plaintiffs here sub-
sequently added Franklin and Boyd to this
action in their Second Amended Com-
plaint.
FN8. In their Second Amended Complaint,
Plaintiffs also alleged discrimination on
the basis of sex. However, the current mo-
tion before the Court does not mention any
such basis. Therefore, the Court will con-
strue this claim to allege only discrimina-
tion based on sexual orientation.
FN9. Plaintiffs also seek a declaration that
Section 2 of the Defense of Marriage Act
(DOMA), 28 U.S.C. § 1738C, as applied to
Plaintiffs and similarly situated same-sex
couples violates the Due Process, Equal
Protection, Freedom of Association, and
Full Faith and Credit clauses of the United
States Constitution. The Court finds that
Section 2 of DOMA, as a permissive stat-
ute, is not necessary to the disposition of
Plaintiffs' case and therefore will not ana-
lyze its constitutionality.
FN10. The Fourteenth Amendment to the
U.S. Constitution provides, in pertinent
part:
No State shall make or enforce any law
which shall abridge the privileges or im-
munities of citizens of the United States;
nor shall any State deprive any person of
life, liberty, or property without due pro-
cess of law; nor deny to any person with-
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in its jurisdiction the equal protection of
the laws.
U.S. CONST. amend. XIV § 1.
FN11. In Windsor, the state of New York
enacted legislation recognizing same-sex
marriages performed out of state and later
amended its own laws to permit same-sex
marriage. Section 3 of the Defense of Mar-
riage Act (DOMA) denied recognition to
same-sex marriages for the purposes of
federal law. As a result of DOMA, a same-
sex spouse did not qualify for the marital
exemption from the federal estate tax. She
brought an action challenging the constitu-
tionality of Section 3 of DOMA in federal
court. The Windsor Court applied Fifth
Amendment due process and equal protec-
tion analysis to the plaintiff's challenge of
a federal statute. Our case involves a chal-
lenge to a state constitutional provision
and state statutes, thus falling under the
protections of the Fourteenth Amendment,
which is subject to the same substantive
analysis.
FN12. Indeed, one district court in this Cir-
cuit has found that Lawrence destroyed the
jurisprudential foundation of Davis's line
of Sixth Circuit cases, thus leaving the
level of scrutiny an open question for
lower courts to resolve. See Obergefell v.
Wymyslo, 962 F.Supp.2d at 986–87
(S.D.Ohio 2013).
FN13. Some courts have construed the
right to marry to include the right to re-
main married. See, e.g., Obergefell v.
Wymyslo, 962 F.Supp.2d 968 (S.D.Ohio
2013). The logic is that Kentucky's laws
operate to render Plaintiffs' marriage inval-
id in the eyes of state law. This could
amount to a functional deprivation of
Plaintiffs' lawful marriage, and therefore a
deprivation of liberty. See id. at 977–79.
FN14. Indeed, Justice Scalia stated that
Windsor indicated the way the Supreme
Court would view future cases involving
same-sex marriage “beyond mistaking.”
133 S.Ct. at 2709 (Scalia, J., dissenting).
FN15. Senate Bill 245 proposed the
amendment to the Kentucky Constitution.
The bill's sponsor, state senator Vernie
McGaha said:
Marriage is a divine institution designed
to form a permanent union between man
and woman.... [T]he scriptures make it
the most sacred relationship of life, and
nothing could be more contrary to the
spirit than the notion that a personal
agreement ratified in a human court sat-
isfies the obligation of this ordinance....
[I]n First Corinthians 7:2, if you notice
the pronouns that are used in this scrip-
ture, it says, ‘Let every man have his
own wife, and let every woman have her
own husband.’ The Defense of Marriage
Act, passed in 1996 by Congress,
defined marriage for the purpose of fed-
eral law as the legal union between one
man and one woman. And while Ken-
tucky's law did prohibit the same thing,
in '98 we passed a statute that gave it a
little more strength and assured that such
unions in other states and countries also
would not be recognized here. There are
similar laws across 38 states that express
an overwhelming agreement in our coun-
try that we should be protecting the insti-
tute [sic ] of marriage. Nevertheless this
institution of marriage is under attack by
judges and elected officials who would
legislate social policy that has already
been in place for us for many, many
years.... In May of this year, Massachu-
setts will begin issuing marriage licenses
to same-sex couples.... We in the legis-
lature, I think, have no other choice but
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to protect our communities from the de-
secration of these traditional values....
Once this amendment passes, no activist
judge, no legislature or county clerk
whether in the Commonwealth or out-
side of it will be able to change this fun-
damental fact: the sacred institution of
marriage joins together a man and a wo-
man for the stability of society and for
the greater glory of God.
S. DEBATE, 108TH CONG., 2ND
SESS. (Ky. 2004), ECF No. 38–6 at
1:00:30–1:05:10. Similarly, cosponsor
state senator Gary Tapp proclaimed:
For many years, Kentucky has had laws
that define marriage as one man and one
woman, and in 1998, the General As-
sembly did strengthen those laws ensur-
ing that same-sex marriages performed
in other states or countries would not be
recognized here.... While we're not pro-
posing any new language regarding the
institution of marriage in Kentucky, this
pro-marriage constitutional amendment
will solidify existing law so that even an
activist judge cannot question the defini-
tion of marriage according to Kentucky
law.... [W]hen the citizens of Kentucky
accept this amendment, no one, no
judge, no mayor, no county clerk, will be
able to question their beliefs in the tradi-
tions of stable marriages and strong fam-
ilies.
Id. at 1:05:43–1:07:45. The final state
senator to speak on behalf of the bill, Ed
Worley, said that the bill was not inten-
ded to be a discrimination bill. Id. at
1:26:10. However, he offered no other
purpose other than reaffirming the his-
torical and Biblical definition of mar-
riage. See, e.g., id. at 1:26:20–1:26:50.
One state senator, Ernesto Scorsone,
spoke out against the constitutional
amendment. He said:
The efforts to amend the U.S. Constitu-
tion over the issue of interracial mar-
riage failed despite repeated religious ar-
guments and Biblical references.... The
proposal today is a shocking departure
from [our constitutional] principles.... To
institutionalize discrimination in our
constitution is to turn the document on
its head. To allow the will of the major-
ity to forever close the door to a minor-
ity, no matter how disliked, to any right,
any privilege, is an act of political
heresy.... Their status will be that of
second-class citizens forever.... Discrim-
ination and prejudices will not survive
the test of time.
Id. at 1:16:07–1:24:00.
FN16. The Supreme Court in Lawrence v.
Texas explained:
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 prin-
ciples in their own search for greater
freedom.
539 U.S. at 578–79, 123 S.Ct. 2472.
FN1. The applicant cites a potential issue
of the applicability of Baker v. Nelson, 409
U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65
(1972). However, Baker dismissed for
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want of a substantial federal question an
action requesting the issuance of a same-
sex marriage license, an issue that was not
before the Court in our underlying case.
W.D.Ky.,2014.
Bourke v. Beshear
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Brinkman v. Long, 2014 WL 3408024 (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 3408024 (Colo.Dist.Ct.) (Trial Order)
District Court of Colorado.
Adams County
Rebecca BRINKMAN and Margaret Burd Plaintiffs,
v.
Karen LONG and The State of Colorado, Defendants.
and
G. Kristian MCDANEIL-MICCIO, et. al., Plaintiffs,
v.
STATE OF COLORADO, et. al., Defendants.
Nos. 13-CV-32572, 14-CV-30731.
July 9, 2014.
*1 Division: C
Courtroom: 506
MDL Case No. 14MD4.
Summary Judgment Order
C. Scott Crabtree, Judge.
Plaintiffs Rebecca Brinkman (Brinkman) and Margaret Burd (Burd) (collectively Adco Plaintiffs) filed a Motion for Summary
Judgment (Adco Motion) on May 2, 2014. The State of Colorado (the State) filed a Cross-Motion for Summary Judgment (State
Adco Motion) on May 2, 2014. Adams County Plaintiffs filed a Reply (Adco Response) on May 30, 2014. The State filed a
Combined Response on May 30, 2014. Plaintiffs Kristian McDaniel-Miccio and Nan McDaniel-Miccio, Sandra Abbott and
Amy Smart, Wendy Alfredsen and Michelle Alfredsen, Kevin Bemis and Kyle Bemis, Tommy Craig and Joshua Wells, James
Davis and Christopher Massey, Sara Knickerbocker and Jessica Ryann Peyton, Jodi Lupien and Kathleen Porter and Tracey
MacDermott and Heather Shockey (Denver Plaintiffs) filed a Motion for Summary Judgment (Denver Motion) in Denver
County on May 2, 2014. The State filed its Motion for Summary Judgment (Denver State Motion) in Denver County on May 2,
2014. Denver Plaintiffs filed a Response on May 30, 2014. The State filed a Combined Response on May 30, 2014. An Amicus
Brief was filed by the Alliance Defending Freedom on May 7, 2014. Governor Hickenlooper filed a Response (Hickenlooper
Response) on May 30, 2014. The Court heard oral arguments of the parties on June 16, 2014. The Court, being fully informed
finds and orders as follows:
Procedural History
Adams County
Adco Plaintiffs filed their complaint on October 9, 2013. Karen Long, Adams Clerk and Recorder (Long), filed an answer on
January 2, 2014. On December 13, 2014 the State filed an Unopposed Motion to Intervene which was granted on December
23, 2013. The State filed an answer on January 6, 2014. Long filed a motion to be excused from the proceedings on January
29, 2014, which was denied on February 27, 2014. On February 13, 2014 the parties filed a stipulation for a proposed case
management order which was granted February 14, 2014. The Order provided for a briefing schedule for cross-motions for
summary judgment and an opportunity for oral argument. The stipulation provided for the filing of affidavits to be responded
to, if appropriate. On April 1, 2014 the parties filed a stipulation to amend the case management order to extend the briefing
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Brinkman v. Long, 2014 WL 3408024 (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2
schedule. Oral argument was set for June 2, 2014. On March 31, 2014 the State filed a Notice of Motion to Consolidate
Multidistrict Litigation. The briefing proceeded in accordance with the agreed upon schedule and as set forth above. On May
2, 2014 the MDL Panel made a recommendation to the Chief Justice of the Colorado Supreme Court to consolidate the Denver
and Adams County cases and that venue was proper in Adams County to be assigned to the undersigned District Court Judge.
The Order also stayed further proceedings in the respective courts pending the assignment by the Chief Justice. On May 7,
2013 the Alliance Defending Freedom filed a Motion to Intervene and an Amicus Brief. On May 8, 2014 the Order from the
Chief Justice consolidating the two cases into Adams County was filed. After motions practice, on May 16, 2014, the Court
denied the motion to intervene, but permitted the amicus brief to be filed. By separate Order the Court indicated that it would
not consider portions of the amicus brief. By agreement, the date for oral argument was changed to June 16, 2014.
Denver County
*2 Denver plaintiffs filed their complaint on February 19, 2014. Defendant Debra Johnson, Denver County Clerk and Recorder
(Johnson), filed an answer on March 12, 2014. The State filed an Answer on April 2, 2014. Governor Hickenlooper filed an
answer on April 2, 2014. The State also filed a Notice of Filing of Motion to Consolidate Multidistrict Litigation in Denver
and Adams counties on April 2, 2014. As previously noted, the cases were ordered consolidated by the Chief Justice on May
8, 2014 and oral argument was set for June 16, 2014.
The Parties
Adco Plaintiffs
Brinkman is a female and a resident of Adams County, Colorado. She wishes to marry her long-time partner, Burd, whom she
loves and has lived with continuously since 1986. She and Burd are not related to each other and have not previously been
married.
1
Burd is a female and a resident of Adams County, Colorado. She wishes to marry her long-time partner, Brinkman,
whom she loves and has lived with continuously since 1986.
2
On October 30, 2013 Brinkman and Burd went to the marriage
license desk at the office of the Adams County Clerk and Recorder and asked for a marriage license application. They were
prepared to present the clerk with proof of their names, gender, address, social security numbers and dates and places of birth.
They each presented their driver's license when requested and had sufficient funds to pay the fee for the marriage license. The
deputy clerk advised them that they could not get married to each other because they were both female. She said they could only
apply for and get a license for a civil union. They declined to obtain the civil union because it was not the same as marriage.
3
Denver Plaintiffs
Denver Plaintiffs, Tracey MacDermott and Heather Shockey; Wendy and Michelle Alfredsen; Tommy Craig and Joshua Wells;
Jodi Lupien and Kathleen Porter; and Christopher Massey and James Davis (Unmarried Plaintiffs), are each in a committed
same-sex relationship and reside in Colorado. Each couple desires to enter into a marriage that is recognized as valid under
Colorado law. They have each completed and signed an application for a marriage license and have attained the age of 18 years
old, and have the ability to pay any applicable fees for a marriage license. The Unmarried Plaintiffs meet all of the statutory
requirements for marriage, except they are same-sex couples.
In February 2014 the Unmarried Plaintiffs appeared at the Denver Office of the Clerk and Recorder to apply for marriage
licenses. A deputy of the Denver Clerk and Recorder declined to issue marriage licenses to the Unmarried Couples because they
are same-sex couples and their licenses would not be valid because Colorado law does not recognize same-sex marriages.
4
Denver Plaintiffs Amy Smart and Sandra Abbott; Kevin and Kyle Bemis; Kris and Nan McDaniel-Miccio; and Sara
Knickerbocker and Ryann Peyton (Married Plaintiffs) were each married in a state that permits same-sex marriage, are in
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committed same-sex relationships and reside in Colorado. They have marriage certificates in the states where they were married.
Each couple that was married out of state desires their marriage to be recognized as valid under Colorado law.
5
Denver Plaintiffs Amy Smart and Sandra Abbott; Wendy and Michelle Alfredsen; Jodi Lupien and Kathleen Porter; and Sara
Knickerbocker and Ryann Peyton are raising children together. Denver Plaintiffs Christopher Massey and James Davis are
expecting the birth of their first child in XX/XX/2014.
6
Karen Long
*3 Long is the Adams County Clerk and Recorder. In her answer to the complaint she stated:
Defendant, Adams County Clerk and Recorder, is a constitutional and statutory officer and has no authority to disregard
Colorado law. Defendant takes no position on any substantive issue raised in this matter and will follow any order that this
court deems proper. Since the Clerk and Recorder does not plan to actively defend this case, she does not plan to participate
in any discovery or briefing and asks that she be excused from the requirements of Rule 16 and Rule 26 and be excused from
attending future court dates that may be set in this case. The Clerk and Recorder will cooperate with any other party or the Court
to the extent that she has relevant information that may be helpful to resolution of this case.
7
Debra Johnson
Johnson is the Clerk and Recorder for the City and County of Denver. As the Clerk and Recorder she is responsible for complying
with Colorado law and acts under color of state law when issuing marriage licenses.
State of Colorado
The State of Colorado is a state with its capital in Denver, Colorado. The State has enacted ordinances and policies that extend
protections and benefits based upon, or otherwise recognize, marital status; however, relying on art. II, § 31 of the Colorado
Constitution and C.R.S. §§ 14-2-104(1)(b), and 14-2-104(2), the State does not allow same-sex couples to marry or recognize
the marriages of same-sex couples.
John Hickenlooper
Defendant John W. Hickenlooper, Jr., is Governor of the State of Colorado. He is responsible for upholding and ensuring
compliance with the state constitution and statutes prescribed by the legislature, including Colorado's laws barring same-sex
couples from marriage and refusing to recognize the valid out-of-state marriages of same-sex couples. Governor Hickenlooper
also bears the authority and responsibility for the formulation and implementation of policies of the executive branch.
8
The Complaints
Adco Plaintiffs
The Adco Plaintiffs' complaint alleges that the first claim for relief is brought pursuant to 42 U.S.C. § 1983, asserting that
the Colorado statute and constitutional amendment prohibiting same-sex marriages constitute a form of gender discrimination.
Further, the laws violate the Equal Protection and Due Process provisions of the Fourteenth Amendment to the United States
Constitution. The second claim for relief seeks a declaration pursuant to the Colorado Uniform Declaratory Judgments Act
that C.R.S. § 14-2-104(1)(b) and (2) and art. II, § 31 of the Colorado Constitution arbitrarily, capriciously and intentionally
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discriminate against the Adco Plaintiffs. The Adco Plaintiffs sought a preliminary and permanent injunction mandating the
Adams County Clerk and Recorder to issue a marriage license to the Adco Plaintiffs.
Denver Plaintiffs
The Denver Plaintiffs' first claim for relief alleged that Colorado's ban on marriage by same-sex couples deprives the Unmarried
Plaintiffs their rights to due process. The second claim for relief alleged that Colorado's failure to recognize the marriage of the
Married Plaintiffs violates their right to due process. The third claim for relief alleged that Colorado's ban on marriage by same-
sex couples deprives the Unmarried Plaintiffs their rights to equal protection of the laws. The fourth claim for relief alleged that
Colorado's failure to recognize the marriage of the Married Plaintiffs violates their right to equal protection of the laws. The
fifth claim for relief sought a declaration that Colorado's laws violate the Denver Plaintiffs' constitutional rights. The Denver
Plaintiffs sought an injunction precluding enforcement of the laws.
The Challenged Laws
Colorado's Statute
*4 In 2000, the Colorado legislature amended the Uniform Marriage Act, C.R.S. §§ 14-2-101 et seq., by adding paragraph
(1)(b) to section 14-2-104. C.R.S. § 14-2-104 reads as follows:
(1) Except as otherwise provided in subsection (3) of this section, a marriage is valid in this state if:
(a) It is licensed, solemnized, and registered as provided in this part 1; and
(b) It is only between one man and one woman.
(2) Notwithstanding the provisions of section 14-2-112, any marriage contracted within or outside this state that does not satisfy
paragraph (b) of subsection (1) of this section shall not be recognized as valid in this state.
(3) Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one
man and one woman:
(a) Entered into prior to September 1, 2006; or
(b) Entered into on or after September 1, 2006, that complies with section 14-2-109.5.
The Colorado Constitutional Amendment
At a general election on November 7, 2006 Colorado voters approved Amendment 43. By proclamation of the Governor on
December 31, 2006, the proposal became art. II, § 31 of the Colorado Constitution. It reads as follows:
Only a union of one man and one woman shall be valid or recognized as a marriage in this state.
Brief Summary of the Parties' Positions Adco Motion
The right to marry the person of your own choosing is a fundamental right guaranteed by the due process clause of the Fourteenth
Amendment. U.S. CONST. amend. XIV. The United States Constitution states that, “The constitution and laws of the United
States...shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or
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laws of any state to the contrary notwithstanding.” U.S. CONST. art. VI, § 2. Any state law which infringes on rights guaranteed
by the United States Constitution is invalid under the Supremacy Clause of Article VI. U.S. CONST. art. VI, cl. 2. The Supreme
Court of the United States in Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984) held that our federal constitution
“undoubtedly imposes constraints on the state's power to control the selection of one's spouse.”
A long and uninterrupted line of Supreme Court decisions recognizes that the right to marry is a “fundamental” right protected
by both the substantive provisions of the Due Process Clause and by the Equal Protection Clause of the Fourteenth Amendment.
See, e.g. Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., Brennan, J. and Warren, C.J., concurring) (“The entire
fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital
privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.”).
Laws which abridge fundamental rights are subject to strict scrutiny analysis under the Due Process Clause. Such laws can only
survive if the government demonstrates that they are “narrowly tailored to serve a compelling state interest.” Reno v. Flores,
507 U.S. 292, 302 (1993). No state since U.S. v. Windsor, 133 S. Ct. 2675 (2013) has been able to justify its ban under even
the rational basis test, much less under the strict scrutiny test.
*5 The Enabling Act which authorized Colorado's admission to the Union empowered the citizens of Colorado to adopt a
constitution and form a state government. Section 4 states, in part, that, “provided that the constitution shall be republican in
form ... and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.”
The statute in question and the Constitutional Amendment violate the principles of the U.S. Constitution. The mandate that the
Constitution “neither knows nor tolerates classes among citizens” is the starting point for any Equal Protection analysis. Same
gender couples are similarly situated to opposite gender couples for purposes of Equal Protection analysis.
A class-based Equal Protection challenge such as the one raised here generally requires a two-step analysis. The Court must
first determine whether the challenged state action intentionally discriminates between groups of persons. Secondly, the Court
must determine whether the state's intentional decision to discriminate can be justified by reference so some upright government
purpose. SECYS, L.L.C. v. Vigil, 666 F.3d 678, 685-86 (10th Cir. 2012).
Somewhere between the “strict scrutiny” test, which applies to suspect classifications such as race, alienage and religion, and
the rational basis test, lies intermediate or heightened scrutiny, which applies to “quasi-suspect” classes. The intermediate level
of scrutiny upholds state laws only if they are “substantially related to an important governmental objective.” Clark v. Jeter,
486 U.S. 456, 461 (1988). “Substantially related” means that the explanation must be “exceedingly persuasive.” United States
v. Virginia, 518 U.S. 515, 533 (1996). Two primary factors must be satisfied for heightened scrutiny to apply: First, the group
must have suffered a history of invidious discrimination. Second, the characteristics which distinguish the group's members
must bear no relation to their ability to perform or contribute to society. A third consideration, used less often, is whether the
law discriminates on the basis of “immutable ... or distinguishing characteristics that define persons as a discrete group.” A
fourth consideration, also used less often, is whether the group is “a minority or politically powerless.” Adco Plaintiffs analyzed
each of the four factors.
The Adco Plaintiffs are members of a quasi-suspect class and the heightened scrutiny analysis must be applied. Even though
Windsor did not specify that it had applied such a test, it did not apply a true rational basis review. See Windsor, 133 S.
Ct. at 2718. Adco Plaintiffs noted several other decisions issued post-Windsor where the heightened scrutiny test had been
adopted. It is entirely proper under this standard of review to consider the purpose behind any law which discriminates against a
politically unpopular minority. Even if this Court declines to find that homosexual persons are a quasi-suspect class and applies
intermediate scrutiny, it must still “carefully consider” not only the relationship between the marriage bans and the proffered
reasons, but the legislative and political histories which led to their enactments as well as their actual purpose and effect.
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Like DOMA, the expressed purpose of the amendment is to discriminate against an unpopular minority by denying members of
the minority access to a right which the United States Supreme Court has repeatedly said is “fundamental.” Under any reading
of Romer v. Evans, 517 U.S. 620 (1996) and Windsor, these laws cannot stand constitutional scrutiny and must be stricken.
The State's post-hoc attempt to justify its discrimination is implausible. As enunciated in the State's amicus brief in Kitchen
v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. 2014), the State claims that “[T]he exclusive capacity and tendency
of heterosexual intercourse to produce children, and the State's need to ensure that those children are cared for, provides that
rational basis.” Brief of the State of Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma and
South Carolina as Amici Curiae in Support of Reversal at 13, Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir.
2014) (hereinafter, State's Amicus Brief). Such an argument ignores that many heterosexual couples who marry without the
intent or ability to naturally procreate children are nonetheless allowed to marry. This “responsible procreation” justification
has been raised by many other states in defending their similar bans on same gender marriages and has failed in every case.
Colorado law is devoid of any proscription on parenting by same gender couples and the Uniform Parentage Act, C.R.S. §
19-4-101, expressly allows for two parents of the same gender. The State allows same gender couples to adopt children, to
beget or give birth to children through artificial means or surrogacy and to retain custody after a failed heterosexual marriage.
*6 The fact that the State has created two classes of legally recognized relationships, marriages and civil unions, is compelling
evidence they are not the same. If civil unions were truly the same as marriages, they would be called marriages and not civil
unions. If they were the same, there would be no need for both of them. In Kerrigan v. Comm'r of Public Health, 957 A.2d 407,
412 (Conn. 2008), the Court stated, “[W]e conclude that in light of the history of pernicious discrimination faced by gay men
and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification
of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constituted
cognizable harm.” The fact that Colorado denies same gender couples the same right to apply for federal benefits that it grants
to opposite gender couples is a violation of the Equal Protection Clause.
Denver Motion
Colorado bans same-sex marriages in two ways. First, Colorado law prevents county clerks from issuing marriage licenses to
same-sex couples (the Celebration Ban). Second, Colorado refuses to recognize same-sex marriages legally entered in other
jurisdictions (the Recognition Ban) (collectively, the Marriage Bans).
The Marriage Bans harm Denver Plaintiffs and other same-sex couples and their children. The inability of Unmarried Plaintiffs
to be legally married in Colorado denies them certain rights and benefits that validly married opposite-sex couples enjoy.
Children of same-sex couples are stigmatized and humiliated for being raised by the targeted same-sex couples.
Colorado's Marriage Bans are unconstitutional under Windsor because they are based on prejudice. Therein the Supreme Court
found that the state could demonstrate no “legitimate purpose” that could overcome the discriminatory purpose and effect of
the federal marriage ban, and accordingly, struck it down. Voters considering Amendment 43 were told the amendment was
“necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado.” COLO. CONST. art. II,
§ 31. This constitutional amendment was adopted even though the legislature had already enacted a statutory provision with
the identical effect. This historic fact evidences a clear intent to ensure that gay and lesbian Coloradans be preemptively denied
rights under the Constitution. The Recognition Ban is invalid under Windsor because Colorado dramatically altered its inter-
state relationships to discriminate only against same-sex couples. Same-sex couples legally married in the other states have
their marriages dissolved and replaced with civil unions upon entry into the state. By operation of law alone, Colorado strips
them of certain legal rights and protections as well as the “dignity and status of immense import” conferred upon them by
marriage. Windsor, 133 S. Ct. at 2675.
Since Windsor, every single court to evaluate same-sex marriage bans has found them unconstitutional, either under the federal
or relevant state constitutions. The Equal Protection Clause of the U.S. Constitution's Fourteenth Amendment provides that no
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state shall “deny to any person within its jurisdiction the equal protection of its laws.” U.S. CONST. amend. XIV, § 1. The
Supreme Court's instruction in Windsor that the states can no longer single out gay and lesbian relationships for second-class
status makes it unnecessary to apply traditional heightened scrutiny under the Equal Protection Clause. Nevertheless, Supreme
Court precedent requires this Court to apply that test to classifications like the Marriage Ban and the Celebration Ban, because
they discriminate on the basis of both sexual orientation and gender. This heightened standard shifts the burden to the state to
demonstrate that the ban is “substantially related to an important government objective.” Jeter, 486 U.S. at 461. In a footnote it
was noted that the State has admitted that its justification cannot meet strict scrutiny.
9
When the four traditional criteria used
by the Supreme Court to determine whether a particular group qualifies as a quasi-suspect class are applied to homosexuals, the
conclusion is that classification based on sexual orientation requires at least heightened scrutiny. Denver Plaintiffs identified a
plethora of courts which have now reached that same conclusion. The Denver Motion analyzed those four criteria and concluded
that gays and lesbians are a suspect or semi-suspect class entitled to protection of heightened scrutiny.
*7 The State cannot meet its burden under heightened scrutiny given that the Marriage Ban bears no rational relationship to
any conceivable government interest. Although the Court should apply the heightened scrutiny test, the Marriage Ban lacks
even a rational basis. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative
end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer,
517 U.S. at 633. A state “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render
the distinction arbitrary or irrational.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). Every court
to consider whether nearly identical marriage bans pass rational basis review following the Windsor decision has concluded
that they do not.
Tradition alone cannot form a rational basis for upholding the marriage ban. Heller v. Doe, 509 U.S. 312, 327 (1993). “[T]he
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; neither history nor tradition could save a law prohibiting miscegenation from
constitutional attack.” Lawrence v. Texas, 539 U.S. 558, 577-78 (citing Bowers v. Hardwick, 478 U.S. 186, 204 (1986)
(Blackmun, J., Brennan, J., Marshall, J., and Stevens, J., dissenting)).
There can be no doubt that same-sex couples are equally equipped to raise healthy, happy children as opposite-sex couples. It
is the State's policy to encourage same sex couples to foster and adopt children in the government's custody.
The State's second conceivable rationale for the Marriage Bans related to children is that restricting the institution of marriage
to opposite-gender couples will “encourage potentially procreative couples to raise children produced by their sexual union
together.” State's Amicus Brief at 15. There is no logical reason to believe extending the marriage right to all couples would have
this effect. As the Kitchen court explained, “It defies reason to conclude that allowing same-sex couples to marry will diminish
the example that married opposite-sex couples set for their unmarried counterparts.” Kitchen v. Herbert, 961 F.Supp.2d 1181,
1211 (D. Utah 2013).
The State's Celebration Ban denies plaintiffs their fundamental right to marry. Denver Plaintiffs addressed a long line of cases
declaring that the right to marry is a fundamental right. Marriage is also a fundamental right to marry the person of your
choosing. “Same-sex marriage is included within the fundamental right to marry.” De Leon v. Perry, 975 F.Supp.2d 632, 660
(W.D. Tex. 2014). The history of Loving confirms that the fundamental right to marry cannot be defined “in so narrow a fashion
that the basic protections afforded by the right are withheld from a class of persons ... who historically have been denied the
benefit of such rights.” In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008).
Colorado's Recognition Ban denies plaintiffs their right to remain married. “[O]nce you get married lawfully in one state, another
state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental
liberty interest protected by the Due Process Clause of the United States Constitution.” Obergefell v. Wymyslo, 962 F.Supp.2d
968, 973 (S.D. Ohio 2013). The Recognition Ban denies same-sex couples their fundamental right to travel. Like voting, the
right to marry is a fundamental right and the Recognition Ban unconstitutionally penalizes the exercise of the right to travel
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by forcing married couples to choose between moving to Colorado and remaining married. Defendants must show that the
Marriage Bans are “necessary to promote a compelling state interest and do[ ]so in the least restrictive manner possible.” Romer,
882 P.2d at 1341.
*8 Civil unions are a separate, second-class institution which does not confer the same benefits and protections as marriage.
“The history of our nation has demonstrated that separate is seldom, if ever, equal.” Opinions of the Justices to the Senate,
802 N.E.2d 565, 569 (Mass. 2004).
State Adco and Denver Motions
10
The State opened its Motion by declaring that what is at stake is marriage, not homosexuality. Individuals' commitment to
love one another is the central purpose of marriage as a personal institution, but that is not the purpose of marriage as a
governmental institution. “Government marriage” is important, but its purposes are more limited than the overall concept of
marriage. Government's role in marriage is not about recognizing parties' love or conferring approval on an individual's choice
of a companion. Government marriage is an attempt to deal with a problem, and one that has become worse in recent years: the
creation of children by parents who are not committed to raising them. This case is not about homosexuality, and it is not even
about marriage in general. It is about the narrower issue of governmental marriage, and the problem caused by uncommitted
opposite-sex couples that it seeks to address. It is also about the courts' historic and wise recognition of two important principles:
the danger of upsetting settled understandings and historical practices and the limited role the judiciary must play in a democratic
society.
Plaintiffs must convince the court not only that Colorado's marriage laws may be or even probably are unconstitutional they must
prove it “beyond any reasonable doubt,” citing City of Greenwood Village v. Petitioners for the Proposed City of Centennial,
3 P.3d 427, 440 (Colo. 2000). Plaintiffs will argue that heightened scrutiny should apply to the question of same sex-marriage.
Most laws do not trigger heightened scrutiny and are reviewed by courts only under the limited rational basis. All laws draw
lines and treat people differently-the question is which lines or classifications are permissible and which are not. That means
plaintiffs can prevail if they establish beyond a reasonable doubt that either sexual orientation is a suspect classification, or
that the right to marry anyone of one's choosing is a fundamental right. As with most laws, Colorado's marriage laws could not
survive if strict scrutiny were applied. This case turns on the level of scrutiny the Court decides to apply.
The trilogy of cases, Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003) and United States v.
Windsor, 133 S. Ct. 2675 (2013) gave the Supreme Court the opportunity to declare either that sexual orientation is a suspect
classification, or same-sex marriage is a fundamental right, or both, but it flatly did not. At most these cases reaffirm the states'
sovereign power to define and regulate marriage. Colorado's marriage laws memorialize its citizens' traditional perspective on
marriage and the historically unquestioned principle that marriage is a one-man, one-woman institution.
Windsor did not expand the scope of fundamental rights and it did not declare sexual orientation a suspect class.
The Supreme Court's decision does not require states to repeal their own similar definitions of marriage and did not
expand the scope of constitutionally protected fundamental rights.
*9 It is well established that the only suspect classifications demanding heightened scrutiny under the Equal Protection Clause
are race and related proxies such as national origin, religion and gender, often called a quasi-suspect class. Before Windsor every
Federal Circuit rejected the argument that sexual orientation should receive heightened scrutiny. The Supreme Court's own
cases, including Windsor, have never applied heightened scrutiny to this classification, instead applying rational basis review.
Plaintiffs are simply not similar to opposite sex couples in all relevant respects when it comes to the governmental institution
of marriage. The reason for the government to recognize marriage is not to recognize the love between the participants, but to
encourage two people who might create and bring into society a child to remain committed to one another even if their personal
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commitment cools. The argument that Colorado's marriage laws discriminate on the basis of gender fails. Federal and many
state courts have rejected the argument that traditional marriage laws discriminate on the basis of gender, as opposed to sexual
orientation. Defining marriage as the union of a man and a woman does not discriminate on the basis of sex because it treats
men and women equally-each man or woman may marry one person of the opposite sex and each man or woman is prohibited
from any other marital arrangement.
If a statute does not abridge a fundamental right, it will withstand judicial scrutiny if it bears a “reasonable relation to a legitimate
state interest.” Washington v. Glucksberg, 521 U.S. 702, 722 (1997). Loving does not open the door to same-sex marriage, but
affirms that marriage is a traditional institution subject to the State's police powers. Instead, plaintiffs must rely on the Loving
court's statement that Virginia's law also violates the Due Process Clause because marriage is a fundamental civil right. The
one paragraph devoted to Due Process recognized only that race cannot be used as a basis for infringing on the fundamental
right to marry.
Colorado's marriage laws were not borne of hatred, animus or supremacy; rather they stem from the traditional view that
marriage is linked to procreation and biological kinship. Throughout Colorado's existence, marriage as a one-man, one-woman
institution has been a foregone conclusion. Although same-sex relationships are a basic and intimate exercise of personal
autonomy, same-sex governmental marriage is not deeply rooted in Colorado's history and traditions, or the Nation's for that
matter. The right to marry someone of the same sex is not a liberty interest “so rooted in the traditions and conscience of our
people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Colorado, like many other states,
has placed restrictions on those who may marry by adopting laws proscribing certain people from marrying despite their love
and commitment.
Legal precedent requires the application of the rational basis test. Rational basis is “the most relaxed and tolerant form of judicial
scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). The laws must be given a
“strong presumption of validity.” Heller, 509 U.S. at 320. The law must be upheld “so long as there is a plausible policy reason
for the classification.” Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). Laws should not be overturned “unless 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 [classifications] were irrational.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000).
*10 Colorado has a rational basis in seeking to encourage social institutions that help avoid the social problems of children
being born and raised without both parents around to raise them. The traditional institution of marriage serves the state's
important governmental interest in discouraging the creation of children through those relationships outside the optimal
environment for children to be born into and raised to adulthood. Colorado has numerous laws based on the interest of
encouraging mothers and fathers to be responsible parents to their children whenever possible. But how to help raised children
whose biological parents have failed to take care of them is not the problem that government marriage aims to mitigate. The
problem is, again, that opposite-sex couples are apt to create such children, and left to their own devices they are not always
as committed to long-term parenting as society wants and needs. Government marriage is meant to try to fight the instinct to
create children without remaining committed to their upbringing into adulthood.
Colorado has many other rational bases for continuing to adhere to the traditional marriage structure. The value of gender
diversity in parenting; encouraging adequate reproduction for society to support itself; and promoting stability and responsibility
in marriages between mothers and fathers for their children's sake.
Amicus Brief of Alliance Defending Freedom
The Amicus Brief tracked many of the same arguments and legal authority cited by and relied upon by the State. As previously
noted in the Court's Order of May 30, 2014:
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There were approximately 35 separate publications, treatises, articles, books and other materials referenced within the Amici
brief. The full text of these materials was not attached and only snippets or paraphrases were provided. The Court has no
intention of retrieving any of the articles, books or materials for reading. Inasmuch as only select phrases were referenced, there
is no way to determine for certain that any of the materials were addressed to the interpretation of the law or the lawmaking
process. The titles of most of the publications, however, clearly suggest that they are addressed to sociological and moral issues
involved in marriage, divorce and adolescents. The Court finds that the publications, studies and articles cited in the Amici brief
are not legislative facts and will not be considered in ruling on the cross-motions for summary judgment.
Adco Response
The State argued that the standard for review for plaintiffs' Equal Protection claims is the rational basis test.
11
Plaintiffs
believe that heightened Equal Protection scrutiny is appropriate. The State's claims that no Circuit Court of Appeals has applied
heightened scrutiny to classification based on sexual origination, was based on cases handed down before the Windsor decision.
In the Windsor opinion in the Second Circuit, the court held that “our conclusion [is] that homosexuals compose a class that is
subject to heightened scrutiny. We further conclude that the class is quasi-suspect ... [.]” Windsor v. United States, 699 F.3d 169,
185 (2d Cir. 2012). When the Supreme Court affirmed the judgment of the Second Circuit, it did not comment on this holding,
much less disapprove of it. Adco Plaintiffs addressed the line of cases addressing the heightened scrutiny standard. Although
Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not representative of deferential review.
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.
Even if this Court declines to find that homosexual persons are a quasi-suspect class and applies true intermediate scrutiny, it
must still carefully consider not only the relationship between the marriage bans and the proffered reasons, but the legislative
and political histories which led up to their enactment as well as their actual purpose and effect.
*11 The legislative record is now on file and demonstrates that the purpose and intent of Colorado's ban on same gender
marriage was solely intended to ban same gender marriage and thus to deny same gender couples the same right to marry
the legislature gave to heterosexual couples. No other purpose appears anywhere in the legislative records. It was not enacted
to protect children or foster an ideal child-rearing environment. In Windsor, the Supreme Court noted, “[T]he Constitution's
guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group can’
justify disparate treatment of that group ... In determining whether a law is motivated by an improper purpose or animus,
‘[d]iscrimination of an unusual character’ especially requires careful consideration.” Id. at 2693.
A fundamental requirement of the Equal Protection Clause is that all laws must be enacted to further a legitimate governmental
purpose and not to disadvantage a particular group. “When the primary purpose and effect of a law is to harm an identifiable
group, the fact that the law may also incidentally service some other neutral governmental interest cannot save it from
unconstitutionality.” Obergefell, 962 F.Supp.2d at 995. When a law has the purpose and effect of imposing legal disabilities
on same gender couples, courts may not uncritically defer to the state's proffered justification, but must determine whether any
justification exists that is sufficiently strong to justify the harms imposed on same gender couples and their children. SmithKline
Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 482-83 (9th Cir. 2014).
Under the rational basis test, a state law does not violate the Equal Protection Clause if the statutory classification is rationally
related to a legitimate governmental purpose. Heller, 509 U.S. at 320. The State cannot show that the marriage ban is rationally
related to its justification. The State cannot “rely on a classification whose relationship to an asserted goal is so attenuated as to
render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 447. Every state and federal court which has applied
the rational basis test to marriage exclusion laws post-Windsor has found that the laws do not satisfy even the deferential test
because there is no logical connection between the stated purpose and the effect of the laws.
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The State has pronounced that this case is about the narrower issue of government marriage, and the problem caused by
uncommitted opposite-sex couples that it seeks to address. The State fails to explain how excluding same gender couples from
“government” marriage will encourage opposite gender, procreative couples to marry each other before having children. This
argument is the legal equivalent of grasping at straws. The State's argument ignores the fact under its definition of “government”
marriage, it still allows, and always has allowed, couples to marry who have neither the intent nor the ability to procreate. Unwed
couples are as free to procreate after the Marriage Bans were enacted as they were before. The State's definition of marriage
flies in the face of Supreme Court decisions defining the real meaning of marriage. Every case since Windsor to address the
question of same gender marriage has held that marriage is not a child-centric institution, since infertile men and women and
couples who choose not to procreate are allowed to marry.
Denver Response
The State has offered no support for its post hoc definition of marriage. The State has attempted to create a new definition of
marriage, untethered to history or common sense. Civil marriage is far broader than the State's narrow definition.
As held in Griswold:
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.
*12 Griswold, 381 U.S. at 486.
The Marriage Bans cannot withstand Equal Protection scrutiny under any standard of review. As the Ninth Circuit has now
recognized, the Supreme Court's decision in Windsor, while not expressly using the phrases “heightened scrutiny” or “suspect
class,” plainly applied a more exacting analysis to the Federal Marriage Ban than traditional rational basis review. SmithKline,
740 F.3d at 483.
Because the Marriage Bans single out individuals for differential treatment based on a suspect classification, they merit
heightened scrutiny. Same-sex couples meet the traditional four part test for membership in a suspect class. “[C]lassifications
based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore
be subjected to strict judicial scrutiny.” Frontiero v. Richardson, 411 U.S. 677, 688 (1973). In trying to avoid application of
heightened scrutiny, the State claims that heightened scrutiny does not apply because the Marriage Bans do “not discriminate
on the basis of sex because they “treat [ ] men and women equally.” This argument has been rejected by the Supreme Court
in Loving.
There is no rational relationship between any legitimate governmental purpose and the Marriage Bans. According to the State,
the sole purpose of civil marriage is to discourage “procreating without commitment” and since “same sex couples do not
significantly contribute to” this problem, “the state's use of marriage to help mitigate it sensibly does not include them.” The
Marriage Ban exacerbates the very problem the State purportedly seeks to solve by insisting that the children of same-sex
couples continue to be denied the stability and dignity of their parents' marriage. Further, the State's asserted interest is belied
by its own laws. No state, including Colorado, restricts marriage to the procreative and the fertile.
The State has misrepresented the holding and history of Loving. Seven federal courts have relied on Loving in finding that
marriage bans, like the ones at issue here, violate same-sex couples' fundamental right to marry. Further, Loving is not limited
to racial issues. Instead, it went farther and held that the laws violated the Loving couple's right to marry. The Supreme Court
has stated that, “Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court
confirm that the right to marry is of fundamental importance to all individuals.” Zablocki v. Redhail, 434 U.S. 374, 383 (1978).
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Plaintiffs are not seeking a “boundary-less” right to marry whomever they may desire, as claimed by the State. Instead,
plaintiffs seek to exercise the same right enjoyed by opposite-sex couples, the right to choose one's spouse subject to reasonable
restrictions. The State's notation of laws limiting marriage highlights the difference between legitimate limitations on marriage
and the Marriage Bans. The Marriage Bans target same-sex couples based on their sexual orientation.
The Hickenlooper Brief
*13 While the State's Attorney General is defending the same-sex marriage ban, the Governor is doubtful that Amendment
43 and related statutes are constitutional based upon evolving jurisprudence. This dispute inevitably may require the Court to
undertake an analysis about what level of scrutiny to apply under the Due Process and Equal Protection Clauses of the United
States Constitution. Regardless of the level of scrutiny that is applied-no state ban on same-sex marriage has survived in the
wake of Windsor. Rather than weighing in on these issues which have been thoroughly addressed by the parties, the Governor's
brief addressed whether the four claims brought against the Governor pursuant to 42 U.S.C. § 1983 should stand. Plaintiffs are
required to show that the Governor personally participated in the deprivation of their civil rights. First, a government official
must be exercising some grant of power from the state to be held liable. The second part of the inquiry focuses on whether a
party is a state actor. The Governor does not contest that he is a state actor, but the missing piece is whether he has exerted any
power granted to him to deny plaintiffs their civil rights. Federal courts have required some level of “personal participation”
for a governor to be held liable in his official capacity under 42 U.S.C. § 1983. The Governor did not direct the clerk and
recorders to act in a certain manner. Likewise the Governor does not participate in the enforcement of Colorado's marital laws.
The Governor's generalized duty to enforce the laws is insufficient to attach liability under 42 U.S.C. § 1983 for Colorado's
same-sex marriage ban.
The State's Combined Response
One thing holds true-marriage remains a matter within the State's sovereign power to regulate and, consequently, the states
may, and do, limit who may marry who based on a number of factors. 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 Colorado's
marriage laws unconstitutional may exist. Courts are not arbiters of moral and political debates, which this case presents. 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 congratulatory certificate, could damage the
institution of marriage and its role in helping to encourage heterosexual couples to stay together to raise the children they create?
Plaintiffs relied heavily on an isolated portion of the Windsor decision to support their argument that Colorado's marriage laws
are “designed to deprive same sex couples full protection and benefit of the law and of social recognition” and serve to injure,
stigmatize, demean and degrade same-sex couples.
Colorado has no obligation to recognize marriages that contradict its strong policy interests. The “full faith and credit clause
does not require one state to substitute for its own statute, applicable to persons and events with it, the conflicting status of
another state. Nevada v. Hall, 440 U.S. 410, 423-24 (1979).
The State again argued that the sexual orientation is not a suspect class requiring application of heightened scrutiny. The
Supreme Court has never concluded that sexual orientation constitutes a quasi-suspect or suspect class. The rational basis review
should be applied and the laws upheld. Colorado's definition of marriage supports conceivable and legitimate state ends. The
State has an interest in maximizing the number of children that are raised by their biological parents.
The echo-chamber of cases coming after Windsor all share the same flaw of misreading the Supreme Court's Windsor opinion,
and often, engaging in taking sides in the moral and social debate about marriage that has little to do with relevant constitutional
claims.
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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.
Plaintiffs have no answer to Glucksberg. Glucksberg remains the binding, definitive rule that this Court must determine if the
claimed right is (1) “objectively, deeply rooted in this Nation's history and traditions,” and (2) the right is carefully described.
Issues
*14 1. Are the Challenged Laws
12
unconstitutional?
a. Do the Challenged Laws violate plaintiffs' due process rights?
b. Do the Challenged Laws violate plaintiffs' equal protection rights?
2. Should civil union survive as a separate but equal institution?
3. Should Denver Plaintiffs' claims against Governor Hickenlooper be dismissed?
4. Should the Court issue a stay of its ruling?
Principles of Law
C.R.C.P. 56(c): Summary Judgment and Rulings on Questions of Law- Motion and Proceedings Thereon
“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”
Standard of Review
Summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Peterson v. Halsted, 829 P.2d 373, 376 (Colo. 1992). The court must base its evaluation of
genuine issues of material fact on “the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits.” C.R.C.P. 56(c). The trial court may not assess witness credibility and the weight of evidence when determining a
motion for summary judgment. Anderson v. Vail Corp., 251 P.3d 1125, 1127 (Colo. App. 2010) (quoting Kaiser Found. Health
Plan of Colo. v. Sharp, 741 P.2d 714, 718 (Colo. 1987)).
The moving party bears the initial burden of establishing that no genuine issue of material fact exists; any doubt should be
resolved in favor of the non-moving party. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251,
1256 (Colo. 1995). This must be an affirmative demonstration of an absence of evidence in the record. Continental Airlines,
Inc. v. Keenan, 731 P.2d 708, n. 2 (Colo. 1987). Once the moving party meets its burden, the opposing party then must establish
that there is a genuine issue for trial. Id. All doubts as to the existence of a triable issue of fact must be resolved against the
moving party. Martini v. Smith, 42 P.3d 629, 632 (Colo. 2002).
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Stipulation and Agreement of the Parties
On page 2 of the Adco Motion it was recited as follows:
The parties have stipulated that this case may be decided on summary judgment because there are no disputed issues of material
fact and because the questions it presents are questions which arise under the Constitutions and laws of the United States and
the State of Colorado. C.R.C.P. 56.
In a footnote on the first page of the State's Adco Motion it was recited, inter alia, that:
Because both cases are legally and factually similar, and no material facts are disputed, the State is filing identical summary
judgment briefs in the two cases in the interest of judicial efficiency.
Analysis
1. Are the Challenged Laws unconstitutional?
a. Do the Challenged Laws violate plaintiffs' due process rights?
*15 The [Due Process] Clause also provides heightened protection against government interference with certain fundamental
rights and liberty interests.
Glucksburg, 521 U.S. at 720.
As Justice Brandeis (joined by Justice Holmes) observed, “[d]espite arguments to the contrary which had seemed to me
persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as
to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution
from invasion by the States.”
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846-47 (1992) (quoting Whitney v. California, 274 U.S. 357,
373 (1927)).
As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe ... ‘fundamental’ liberty interests
at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”
Glucksberg, 521 U.S. at 721 (quoting Flores, 507 U.S. at 302 (1993).
Marriage as a fundamental right
Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.
Loving v. Virginia, 388 U.S. 1, 12 (1967) (citing Skinner v. State of Oklahoma, 316 U.S. 535, 541 (1942)).
The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the
relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance
of a family-marriage, e.g., Zablocki v. Redhail, supra; childbirth, e.g., Carey v. Population Services International, supra; the
raising and education of children, e.g., Smith v. Organization of Foster Families, supra; and cohabitation with one's relatives,
e.g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the
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necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs
but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as
relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in
critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the
considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.”
Roberts v. U.S., 468 U.S. 609, 619-20 (1984).
Although “(t)he Constitution does not explicitly mention any right of privacy,” the Court has recognized that one aspect of the
“liberty” protected by the Due Process Clause of the Fourteenth Amendment is “a right of personal privacy, or a guarantee
of certain areas or zones of privacy.” This right of personal privacy includes “the interest in independence in making certain
kinds of important decisions.” While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that
among the decisions that an individual may make without unjustified government interference are personal decisions “relating
to marriage
*16 Carey v. Population Services Intern. 431 U.S. 678, 684-85 (1977) (citations omitted).
In the first of these the supreme court of Kentucky said that marriage was more than a contract; that it was the most elementary
and useful of all the social relations; was regulated and controlled by the sovereign power of the state, and could not, like
mere contracts, be dissolved by the mutual consent of the contracting parties, but might be abrogated by the sovereign will
whenever the public good, or justice to both parties, or either of the parties, would thereby be subserved; that being more than
a contract, and depending especially upon the sovereign will, it was not embraced by the constitutional inhibition of legislative
acts impairing the obligation of contracts. In the second case the supreme court of Rhode Island said that ‘marriage, in the
sense in which it is dealt with by a decree of divorce, is not a contract, but one of the domestic relations. In strictness, though
formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than
any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make.
Maynard v. Hill, 125 U.S. 190, 212 (1888).
The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights
to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically
protected.”
Griswold, 381 U.S. at 495.
This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties
protected by the Due Process Clause of the Fourteenth Amendment.
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974).
The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed
to the plaintiff in error by the Fourteenth Amendment:
“No state ... shall deprive any person of life, liberty or property without due process of law.”
While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration
and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint
but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge,
to marry [...]
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Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Bankruptcy is hardly akin to free speech or marriage or to those other rights, so many of which are imbedded in the First
Amendment, that the Court has come to regard as fundamental and that demand the lofty requirement of a compelling
governmental interest before they may be significantly regulated.”
U.S. v. Kras, 409 U.S. 434, 446 (1973).
But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the
rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man.
Marriage and procreation are fundamental to the very existence and survival of the race.
*17 Skinner, 316 U.S. at 541.
Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as “of
basic importance in our society,” [...] rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation,
disregard, or disrespect.
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (other citations omitted).
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. Our cases recognize “the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a
child.” Our precedents “have respected the private realm of family life which the state cannot enter.” These matters, involving
the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. 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 (citations omitted).
In Planned Parenthood [ ], the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause.
The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating
to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the
Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal
dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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.”
Lawrence, 539 U.S.at 573-74 (2003) (quoting Casey, 505 U.S. at 851).
The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution
[.] See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“[D]ecisions of this Court confirm that the right to marry is of
fundamental importance for all individuals.”); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come
to regard marriage as fundamental); 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.”); Skinner v. Oklahoma ex. rel.
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Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and
survival); Maynard v. Hill,125 U.S. 190, 205, 211 (1888) (characterizing marriage as “the most important relation in life” and
as “the foundation of the family and society, without which there would be neither civilization nor progress.”).
*18 While the right to marry is not explicitly mentioned in the text of the Constitution, this right is nevertheless protected by
the guarantee of liberty under the Due Process Clause.
De Leon v. Perry, 975 F.Supp.2d 632, 657-58 (W.D. Tex. 2014).
The right to marry is an example of a fundamental right that is not mentioned explicitly in the text of the Constitution but is
nevertheless protected by the guarantee of liberty under the Due Process Clause. The Supreme Court has long emphasized that
the right to marry is of fundamental importance. In Maynard v. Hill, the Court characterized marriage as “the most important
relation in life” and as “the foundation of the family and society, without which there would be neither civilization nor progress.”
125 U.S. 190, 205, 211 (1888). In Meyer v. Nebraska, the Court recognized that the right “to marry, establish a home and bring
up children” is a central part of the liberty protected by the Due Process Clause. 262 U.S. 390, 399 (1923). And in Skinner v.
Oklahoma ex rel. Williamson, the Court ruled that marriage is “one of the basic civil rights of man.” 316 U.S. 535, 541 (1942).
In more recent cases, the Court has held that the right to marry implicates additional rights that are protected by the Fourteenth
Amendment. For instance, the Court's decision in Griswold v. Connecticut, in which the Court struck down a Connecticut law
that prohibited the use of contraceptives, established that the right to marry is intertwined with an individual's right of privacy.”
381 U.S. 479, 486 (1965).
Kitchen, 961 F.Supp.2d at 1197.
The United States Supreme Court initially discussed the constitutional right to marry as an aspect of the fundamental substantive
“liberty” protected by the due process clause of the federal Constitution (see Meyer v. Nebraska, 262 U.S. 390, 399 (1923)),
but thereafter in Griswold v. Connecticut, 381 U.S. 479, 485 (1965), the federal high court additionally identified the right to
marry as a component of a “right of privacy” protected by the federal Constitution.
In re Marriage Cases, 183 P.3d at 420.
There is no question that the right to marry is a fundamental right.
What “right to marry” is at stake?
The Court heartily endorses the recent holding by the Tenth Circuit in Kitchen v. Herbert that the marital right at issue was
never framed as the “right to interracial marriage in Loving or the “prisoner's right to marriage” in Turner or the “dead-beat
dad's” right to marriage in Zablocki. See Kitchen, 961 F.Supp.2d at 1200. Instead, the Supreme Court has repeatedly utilized
the term “fundamental right to marry” without any limitations. The Court rejects the State's attempt to too narrowly describe
the marital right at issue to the right to marry a person of the same sex.
The Court also concurs with the growing number of courts which have held that the fundamental right to marry includes the
right to remain married. See Kitchen, 961 F.Supp.2d at 1201; Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999, at
*13 (D. Idaho May 13, 2014); De Leon, 975 F.Supp.2d at 654; Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *7
(S.D. Ohio Apr. 14, 2014); Obergefell, 962 F.Supp.2d at 978.
Are the Marriage Bans necessary to promote a compelling state interest?
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*19 “When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless
it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434
U.S. at 388 (citations omitted).
The State has variously described its interest in maintaining the Marriage Bans as follows:
It is an attempt to deal with a problem, and one that has become worse in recent years: the creation of children by parents who
are not committed to raising them.
State's Motions, p. 6.
So again, Government Marriage, as distinguished from personal or religious or familial marriage, is not about recognizing
or congratulating individuals who love each other. It is about avoiding the problems that society encounters when childbirth
outside monogamous relationships becomes widespread. Same-sex couples, biologically speaking, simply cannot contribute
to this problem.
State's Motions, p.7.
As noted above and explained more below, the animating reason for the government to recognize marriage is not to recognize the
love between the participants, but to encourage two people who might create and bring into society a child to remain committed
to one another even if their personal commitment cools.
State's Motions, p. 19.
The traditional institution of marriage serves the state's important government interest in discouraging the creation of children
through those relationships outside the optimal environment for children to be born into and raised to adulthood.
State's Motions, p. 33.
Government marriage is meant to try to fight the instinct to create children without remaining committed to their upbringing
into adulthood. This problem is not caused by same-sex couples, at least not to any significant extent, and the state thus need
not extend this part of its solution to them.
State's Motions, p. 36.
The state has an interest in maximizing the number of children that are raised by their biological parents.
State's Combined Response, p. 19.
The avowed State interest can be distilled down to encouraging procreation and marital commitment for the benefit of the
children. The problem with this post-hoc explanation is that it utterly ignores those who are permitted to marry without the
ability or desire to procreate. It is merely a pretext for discriminating against same-sex marriages.
This recently fabricated “state interest” is also belied by legislative history which accompanied the enactment of the 2000
amendments to C.R.S. § 14-2-104. On February 21, 2000, at the second reading on HB 1249, Rep. Mark Paschall stated, “What
we're opening the door here to, and even though the issue is being framed around same sex relationships, we're talking about
opening the door to polygamy, polyandry, and polyamorous relationships.” Later in the debate, Rep. Paschall stated that “[t]his
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is going to allow incestuous relationships. We don't want to be allowing any kind of solemnized relationship in the State of
Colorado, and that's what this is going to do.” Rep. Doug Dean stated, “[b]ut where I think it's important for me as a legislator
to say that we don't want to recognize same-sex unions, same-sex marriages, because we believe that it contributes to the decay
of society ... it will be harmful to our state.” Out of more than a dozen comments on the bill, only one comment was made
about marriage providing a stable environment for children to be brought into the world and raised. But that same senator,
John Andrews completed his comments noting that, “marriage, as an institution, thousands of years old, I would argue, is
strengthened, when we maintain that traditional definition.”
*20 Likewise, when Amendment 43 was being submitted to the voters, the Amendment 43 Blue Book told voters that one
reason to pass Amendment 43 was to “preserv[e] the commonly accepted definition of marriage. Marriage as an institution has
historically consisted of one man and one woman.”
This notion of “responsible procreation” has been raised many times before and been met without success. See, e.g., Perry v.
Brown, 671 F.3d 1052, 1089 (9th Cir. 2012), vacated and remanded, Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013); Perry
v. Schwarzenegger, 704 F. Supp.2d 921, 999 (N.D. Cal. 2010); Kitchen, 961 F.Supp.2d at 1211-12; De Leon, 975 F.Supp.2d at
653; DeBoer v. Snyder, 973 F.Supp.2d 757, 768 (E.D. Mich. 2014); Bishop v U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1291
(N.D. Okla. 2014); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL 2054264, at *13 (D. Or. May 19, 2014); Griego
v. Oliver, 316 P.2d 865, 886 (N.M. 2013).
To the extent the State's interest is in preserving the historical tradition of one-man one-woman marriage, it cannot survive
any level of scrutiny.
Proponents suggest that these state interests in tradition arise from a legitimate desire to discourage individuals from abusing
marriage rights by marrying for the sole purpose of qualifying for benefits for which they would otherwise not qualify ... The
“[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller v. Doe, 509 U.S.
312, 326 (1993). This proffer lacks any rational basis.
Bostic v. Rainey, 970 F. Supp. 2d 456, 474 (E.D. Va. 2014) (citation omitted).
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice STEVENS came to
these conclusions: “Our prior cases make two propositions abundantly clear. First, 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; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual
decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce
offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection
extends to intimate choices by unmarried as well as married persons.” Justice STEVENS' analysis, in our view, should have
been controlling in Bowers and should control here.
Lawrence, 539 U.S. at 577-78 (citations omitted).
The Court holds that the State does not have a sufficiently important/ compelling interest in forbidding same-sex marriages
or nullifying Colorado residents' valid out-of-state same-sex marriages. The Marriage Bans are unconstitutional because they
violate plaintiffs' due process rights.
b. Do the Challenged Laws violate plaintiffs' equal protection rights?
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction
the equal protection of its laws.” U.S. CONST. amend. XIV, § 1.
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Instead, the Equal Protection Clause is a more particular and profound recognition of the essential and radical equality of all
human beings. It seeks to ensure that any classifications the law makes are made “without respect to persons,” that like cases
are treated alike, that those who “appear similarly situated” are not treated differently without, at the very least, “a rational
reason for the difference.”
*21 Vigil, 666 F.3d at 684-85 (quoting Enquist v. Oregon Dep't of Agric., 553 U.S. 591, 601 (2008)).
In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, U.S. Const., Amdt.
14, § 1, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must
be rationally related to a legitimate governmental purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17
(1973); cf. Lyng v. Automobile Workers, 485 U.S. 360, 370, (1988). Classifications based on race or national origin, e.g., Loving
v. Virginia, 388 U.S. 1, 11 (1967), and classifications affecting fundamental rights, e.g., Harper v. Virginia Bd. of Elections,
383 U.S. 663, 672 (1966), are given the most exacting scrutiny. Between these extremes of rational basis review and strict
scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex
or illegitimacy.
Jeter, 486 U.S. at 461.
To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” Clark
v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L.Ed.2d 465 (1988). “Substantially related” means that the explanation must
be “ ‘exceedingly persuasive.” ’ United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 135 L.Ed.2d 735 (1996) (quoting
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S. Ct. 3331, 73 L.Ed.2d 1090 (1982)). “The justification must
be genuine, not hypothesized or invented post hoc in response to litigation.” Id.
Windsor, 699 F.3d at 185, cert. granted, 133 S. Ct. 786 (2012) and aff'd, 133 S. Ct. 2675 (U.S. 2013), cert. denied, 133 S. Ct.
2884 ( 2013), cert. denied, 133 S. Ct. 2885 (2013).
The Court has previously found that the State's professed governmental interest was a mere pretext for discrimination against
same-sex marriages created “post hoc in response to litigation.” Thus, the Marriage Bans cannot even pass muster under the
rational basis analysis. The sole basis for precluding same-sex marriage is self-evident-the parties are of the same sex and for
that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples. The Court holds that the
Marriage Bans are unconstitutional because they violate plaintiffs' equal protection rights.
2. Should civil union survive as a separate but equal institution?
Having found that the Marriage Bans are unconstitutional, it would seem that the continuation of civil unions is a moot issue.
Nevertheless, the Court will analyze Colorado's civil unions as it may bear on a legitimate alternative to civil marriage.
The general assembly declares that the public policy of this state, as set forth in section 31 of article II of the state constitution,
recognizes only the union of one man and one woman as a marriage. The general assembly declares that the purpose of this
article is to provide eligible couples the opportunity to obtain the benefits, protections, and responsibilities afforded by Colorado
law to spouses consistent with the principles of equality under law and religious freedom embodied in both the United States
constitution and the constitution of this state. The general assembly declares that a second purpose of the act is to protect
individuals who are or may become partners in a civil union against discrimination in employment, housing, and in places of
public accommodation. The general assembly further finds that the general assembly, in the exercise of its plenary power, has
the authority to define other arrangements, such as a civil union between two unmarried persons regardless of their gender, and
to set forth in statute any state-level benefits, rights, and protections to which a couple is entitled by virtue of entering into a
civil union. The general assembly finds that the “Colorado Civil Union Act” does not alter the public policy of this state, which
recognizes only the union of one man and one woman as a marriage. The general assembly also declares that a third purpose
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in enacting the “Colorado Civil Union Act” is to state that Colorado courts may offer same-sex couples the equal protection of
the law and to give full faith and credit to recognize relationships legally created in other jurisdictions that are similar to civil
unions created by this article and that are not otherwise recognized pursuant to Colorado law.
*22 C.R.S. § 14-15-102: Civil Unions.
“The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language
that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.” In re Opinions of the
Justices to the Senate, 802 N.E.2d at 570. The fact is that those in a civil union do not and cannot obtain the same benefits
and protections of federal law as married couples including filing joint tax returns, Family Medical Leave Act benefits, and
facing loss of social security and veterans benefits. If civil unions were somehow the equivalent of marriage, there would be
no real need for this second tier relationship. The State paid only lip-service to the plaintiffs' arguments that civil unions were
not unlike the “separate but equal” black and white educational systems.
13
Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered; see part V A
of this opinion; we cannot discount the plaintiffs' assertion that the legislature, in establishing a statutory scheme consigning
same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the
institution of marriage. In other words, “[b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is
legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message
is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot
have the name of marriage.”
Kerrigan, 957 A.2d at 417.
The Court finds that confining same-sex couples to civil unions is further evidence of discrimination against same-sex couples
and does not ameliorate the discriminatory effect of the Marriage Bans.
3. Should Denver Plaintiffs' claims against Governor Hickenlooper be dismissed?
Denver Plaintiffs have asserted four claims for relief against Governor Hickenlooper based on 42 U.S.C. 1983-due process and
equal protection claims for denying Unmarried Plaintiffs from getting married and due process and equal protection claims for
not recognizing Married Plaintiffs' out-of-state marriages.
According to Denver Plaintiffs' complaint:
Article IV, section 2 of the Colorado Constitution states: “The supreme executive power of the state shall be vested in the
governor, who shall take care that the laws be faithfully executed.” He is responsible for upholding and ensuring compliance
with the state constitution and statutes prescribed by the legislature, including Colorado's laws barring same-sex couples from
marriage and refusing to recognize the valid out-of-state marriages of same-sex couples. Governor Hickenlooper also bears the
authority and responsibility for the formulation and implementation of policies of the executive branch. Governor Hickenlooper
is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.
Governor Hickenlooper's official residence is in the City and County of Denver, Colorado. He is being sued in his official
capacity.
*23 Paragraph 85 of the Denver Plaintiffs' complaint avers that:
As Colorado's Governor and chief executive officer, defendant Hickenlooper's duties and actions to enforce Colorado's
exclusion of same-sex couples from marriage, including those actions taken pursuant to his responsibility for the policies and
actions of the executive branch relating to, for example and without limitation, health insurance coverage, vital records, tax
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obligations, and state employee benefits programs, violate plaintiffs' fundamental right to marry; fundamental interests in liberty,
dignity, privacy, autonomy, family integrity, and intimate association; and the fundamental right to travel under the Fourteenth
Amendment to the United States Constitution.
Defendants similarly argue that the section 1983 damages claim against Hickenlooper and Kelley should be dismissed because
they have no personal involvement in the alleged constitutional deprivations, and there is no supervisory liability under section
1983. Once again, Defendants are correct. For the reasons discussed above, Plaintiffs have not plead or otherwise shown how
Defendants Hickenlooper and Kelley have had any personal involvement in the enforcement of the RES. See Foote v. Spiegel,
118 F.3d 1416, 1423 (10th Cir.1997) (“Individual liability under § 1983 must be based on personal involvement in the alleged
constitutional violation.”).
Am. Tradition Inst. v. Colorado, 876 F. Supp. 2d 1222, 1239-40 (D. Colo. 2012).
Denver Plaintiffs have only alleged a generalized oversight of matters relating to marriage in the State of Colorado.
Here, the Oklahoma officials' generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging
a constitutional amendment they have no specific duty to enforce. See Women's Emergency Network v. Bush, 323 F.3d 937,
949-50 (11th Cir. 2003) (“Where the enforcement of a statute is the responsibility of parties other than the governor (the cabinet
in this case), the governor's general executive power is insufficient to confer jurisdiction.”); see also Waste Mgm't. Holdings, Inc.
v. Gilmore, 252 F.3d 316, 330-31 (4th Cir. 2001) (concluding governor's general duty to enforce the laws of Virginia insufficient
when he lacks a specific duty to enforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th Cir. 2001) (en
banc) (constitutional challenge to state tort statute against Governor and Attorney General not viable under the Ex Parte Young
doctrine because no enforcement connection existed between Governor or Attorney General and the statute in question); 1st
Westco Corp. v. Sch. Dist. of Phila.,6 F.3d 108, 112-13, 116 (3d Cir. 1993) (“If we were to allow [plaintiffs] to join ... [the State
officials] in this lawsuit based on their general obligation to enforce the laws ..., we would quickly approach the nadir of the
slippery slope; each state's high policy officials would be subject to defend every suit challenging the constitutionality of any
state statute, no matter how attenuated his or her connection to it.”).
*24 Bishop, 333 F.App'x at 365.
The Court has now declared the Marriage Bans unconstitutional. Although it is likely that the Marriage Bans will remain in
place until further judicial scrutiny by a superior court of law, the Court finds that Denver Plaintiffs have not alleged sufficient
facts to demonstrate that Governor Hickenlooper could be found liable for violating plaintiffs' equal protection or due process
rights by the continuation of the Marriage Bans. Denver Plaintiffs' complaint against Governor Hickenlooper is dismissed
without prejudice.
4. Should the Court issue a stay of its ruling?
After the completion of oral argument the State filed a Partially Stipulated Motion for Stay in the Event of Judgment for the
Plaintiffs on June 25, 2014. Therein it was recited that the Adco Plaintiffs and the State agreed to a stay if the Court ruled in
plaintiffs' favor. The motion declared that the Governor and the Adams County Clerk & Recorder agreed not to oppose the
motion. Denver Plaintiffs and Denver Clerk & Recorder filed a Response in Opposition on June 26, 2014. The State filed a
Reply on June 30, 2014. On July 2, 2014 Adco Plaintiffs withdrew their agreement to a stay based on actions by the State. On
July 2, 2014 Denver Plaintiffs filed a Sur-reply.
Denver Plaintiffs argued that the State had misrepresented the status of stays issued by federal courts. Denver Plaintiffs asserted
that federal law regarding stays is not controlling, but rather that Colorado procedural law applies. Denver Plaintiffs referred
to a four-factor test “when considering whether to stay an order denying or granting an injunction.” Romero, 307 P.3d at 122.
Denver Plaintiffs also argued that, based on Colorado Supreme Court precedent affirming preliminary injunctions, a declaration
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that the Marriage Bans are unconstitutional may preclude entry of a stay. Denver Plaintiffs examined the six-part test set forth
in Rathke v. MacFarlane, 648 P.2d 653-54 (Colo. 1982).
The Court has read and re-read the briefs filed by the parties in an attempt to find any discussion of the grant or denial of an
injunction and has found none. None of the briefs mentioned Rathke or analyzed the facts of this case in light of the six factors set
forth therein. This Court has found the Marriage Bans unconstitutional but has not issued an injunction, mandatory or otherwise.
The State advised in its recent Reply that the United States Supreme Court stayed an injunction granted by a district court in
Utah, involving a challenge to that state's marriage laws.
14
Equally significant is that four Federal Courts of Appeals have
issued stays of the orders finding the marriage bans unconstitutional. Romero indicated that it was recognizing and adopting
federal standards for granting stays.
15
Romero identified four factors to be considered by a court in determining whether to
grant a stay.
16
Romero does not, however, remove the discretion of a trial court to grant a stay. “Consequently, the trial court
properly refused to dismiss his suit and acted within its discretion when it stayed the case pending resolution of the appeal.”
Rantz v. Kaufman, 109 P.3d 132, 133 (Colo. 2005). “[A grant of stay] is ... ‘an exercise of judicial discretion,’ and ‘[t]he
propriety of its issue is dependent upon the circumstances of the particular case.’ (‘[T]he traditional stay factors contemplate
individualized judgments in each case’).” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting, e.g., Hilton v. Braunskill, 481
U.S. 770, 777 (1987)).
*25 In addition, the Court has not found language in Romero or Michigan Coalition, requiring that a party seeking a stay must
establish each of the four factors, but that they be considered in exercising the discretion to grant or deny a stay.
17
a. Likelihood of success on the merits
Depending on circumstances in the cases, this factor has taken on several meanings. “The probability of success that must
be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay.” Michigan
Coalition, 945 F.2d at 153. “[S]erious questions going to the merits.” Id. at 154 (citing Friendship Materials, Inc. v. Michigan
Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). The State's ultimate likelihood of success on the merits has become increasingly
in doubt given the avalanche of court decisions striking down same-sex marriage bans. Nevertheless, the grant of a stay by the
Supreme Court in the Utah district court case and the four federal circuit courts suggests that this issue is far from over.
b. The threat of irreparable harm to the State if the stay is not granted
“ ‘Irreparable harm” ’ is a pliant term adaptable to the unique circumstances that an individual case might present. See State
Comm'n on Human Relations v. Talbot County Detention Ctr., 803 A.2d 527, 542 (2002). Generally, irreparable harm has been
defined as ‘certain and imminent harm for which a monetary award does not adequately compensate.” ’ Gitlitz v. Bellock, 171
P.3d 1274, 1278-79 (Colo. App. 2007). The State has also identified holdings by appellate courts that held that a state suffers
irreparable injury whenever an enactment of its people is enjoined. Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719
(9th Cir. 1997); O Centro Espirita Beneficiente Uniao De Vegetal. v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002) and Planned
Parenthood, 134 S. Ct. at 506. The Court has confirmed the cited holding in these cases and finds that the Court's holding that
the State's Marriage Bans are unconstitutional may constitute irreparable injury.
c. Whether the stay will substantially injure the other parties interested in the proceeding
Plaintiffs have alleged that they have endured discrimination for a substantial period of time and suffered injury from the
enactment of bans on same-sex marriage. Stays of court orders finding the bans against same-sex marriage unconstitutional
are being entered around the United States. The Court cannot find that staying the effect of this Court's Order will result in
substantial injury to the plaintiffs.
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d. The public interest in granting the stay
*26 The Marriage Bans came into existence based upon actions taken by the Colorado legislature and an amendment to the
Colorado Constitution based upon a vote of the citizens of this state. While plaintiffs are members of the public, they do not
represent the interests of all of Colorado's citizens. The public has an interest in the orderly determination of the constitutionality
of its laws and granting a stay will effectuate that end.
This Court is under no delusion that the resolution of the issue of same-sex marriages will end with this Court's decision or
any lower courts' decisions. The final chapter of this debate will undoubtedly have to be written in either Denver, Colorado
or Washington, D.C. While the striking down of laws banning same-sex marriages has been progressing at a rapid rate, it will
take time for this issue to be finally resolved. Having considered the Romero factors, all other circumstances of this case, and
the events surrounding the issue of same-sex marriage, the Court finds that a stay is necessary to avoid the instability and
uncertainty which would result in the State of Colorado if the Court did not stay its ruling
18
and for the orderly administration
of justice. The Court orders that this judgment is stayed pending a resolution of this matter on appeal.
Order
The Court holds that the Marriage Bans violate plaintiffs' due process and equal protection guarantees under the Fourteenth
Amendment to the U.S. Constitution. The existence of civil unions is further evidence of discrimination against same-sex
couples and does not ameliorate the discriminatory effect of the Marriage Bans. Denver Plaintiffs' claims against Governor
Hickenlooper are dismissed without prejudice. The Court's Judgment is stayed pending a resolution of the issue on appeal.
Dated this 9
th
day of July, 2014.
By the Court:
<<signature>>
C. Scott Crabtree
District Court Judge
Footnotes
1 Brinkman affidavit.
2 Burd affidavit.
3 Brinkman and Burd affidavits.
4 Parties' Stipulated Facts for Summary Judgment, ¶¶1, 3, 6 and 7.
5 Parties' Stipulated Facts for Summary Judgment, ¶8.
6 Parties' Stipulated Facts for Summary Judgment, ¶¶11 and 12.
7 Karen Long Answer, p. 3, Disclaimer.
8 Answer of John W. Hickenlooper, Jr.
9 Denver Motion, p. 15, fn. 2.
10 In a footnote on the first page of the State's Motions it was reflected that the Motions were identical. The Court will refer to the
motions in the singular.
11 The State's argument regarding proving unconstitutionality beyond a reasonable doubt only applies to challenges under the state
constitution. Adco Plaintiffs' claims are brought under the federal constitution and the reasonable doubt standard does not apply.
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12 C.R.S. § 14-2-104(1)(b) and (2) and Article II, § 31 of the Colorado Constitution.
13 The State's argument included a mere 13 lines in a 32-page brief. Combined Response, pp. 18-19.
14 Included in a footnote was the text of the Supreme Court's Order granting the stay of the permanent injunction issued by the U.S.
District Court for the District of Utah pending final disposition of the appeal by the 10
th
Circuit.
15 Romero concluded that the formulation set forth by the Sixth Circuit in Michigan Coalition of Radioactive Material Users, Inc. v.
Griepentrog, 945 F. 2d 150 (6th Cir. 1991), to be the most appropriate test.
16 These factors are not unlike those applied in granting an injunction.
17 “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Michigan
Coalition, 945 F.2d at 153.
18
Witness the continued issuance of marriage licenses in Boulder (despite a stay of the 10
th
Circuit decision) which has prompted the
Attorney General to file a lawsuit in Boulder to enjoin the practice.
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
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Burns v. Hickenlooper, Not Reported in F.Supp.2d (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 3634834
Only the Westlaw citation is currently available.
United States District Court, D. Colorado.
Catherine Burns; Sheila Schroeder; Mark
Thrun; Geoffrey Bateman; Rachel Catt;
Cassie Rubald; Breanna Alexander; Stacy
Parrish; Angela Cranmore; Julianne Deloy;
Karen Collier; and Denise Lord; Plaintiffs,
v.
John W. Hickenlooper, Jr., in his official capacity
as Governor of Colorado; John Suthers, in his
official capacity as Attorney General of Colorado;
and Pam Anderson, in her official capacity as Clerk
and Recorder for Jefferson County, Defendants.
Civil Action No. 14–cv–01817–
RM–KLM | Signed July 23, 2014
Attorneys and Law Firms
Danielle C. Jefferis, Darren M. Jankord, David Arthur Lane,
Mari Anne Newman, Killmer, Lane & Newman, LLP,
Denver, CO, for Plaintiffs.
Opinion
ORDER
RAYMOND P. MOORE, United States District Judge
*1 Plaintiffs are six same-sex couples who have been legally
married in another state but whose marriage Colorado does
not legally recognize or who have been refused a Colorado
marriage license, solely because they are same-sex couples.
Two issues are before the Court: (1) whether a preliminary
injunction should be entered enjoining Defendants from
enforcing Article II, Section 31 of the Colorado Constitution
and C.R.S. §§ 14–2–104(1)(b) and 14–2–104(2) (collectively,
“Challenged Laws”), laws which declare that only a union
between one man and one woman may be recognized as a
marriage in Colorado; and (2) if a preliminary injunction
is ordered, whether such order and this entire proceeding
should thereafter be stayed until such time as Kitchen v.
Herbert, No. 13–4178, ––– F.3d ––––, 2014 WL 2868044
(10th Cir. June 25, 2014) becomes final. In Kitchen, the Tenth
Circuit found that Utah's ban against same-sex marriage,
which is similar to the Challenged Laws, violated the Due
Process and Equal Protection Clauses of the United States
Constitution. The mandate in Kitchen has been stayed by
the Tenth Circuit pending the disposition of any petition for
writ of certiorari. Upon consideration of all relevant matters,
including argument of counsel, and for the reasons stated
herein, the Plaintiffs' Motion for Preliminary Injunction is
GRANTED; the Defendants' Motion to Stay the preliminary
injunction until resolution of Kitchen is DENIED, but instead
only a temporary stay is GRANTED; and the Defendants'
Motion to Stay further proceedings in this matter, apart from
the preliminary injunction, is GRANTED.
I. PLAINTIFFS' MOTION FOR
PRELIMINARY INJUNCTION
Plaintiffs' civil rights action for declaratory and injunctive
relief seeks to declare the Challenged Laws banning same-
sex marriage as unconstitutional under the United States
Constitution, and to enjoin the Defendants from enforcing
those laws. Plaintiffs' two claims for relief under 42 U.S.C.
§ 1983 allege violations of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment of the
United States Constitution. Plaintiffs have filed a Motion for
Preliminary Injunction (ECF No. 8) supported by affidavits.
Defendants have filed a “non-opposition” (ECF No. 16),
revealing a far from unified front. Defendant Attorney
General believes Kitchen is incorrect while Defendant
Governor believes Kitchen was correctly decided. Defendant
Anderson takes no position on this issue. Nevertheless,
Defendants collectively do not oppose entry of a preliminary
injunction, but also ask that the injunction, as well as further
proceedings in this matter, be stayed. Relying primarily on the
Kitchen decision, Plaintiffs argue they have established the
requisite elements for the issuance of a preliminary injunction
against Defendants. Based on its independent analysis, the
Court agrees.
Before a preliminary injunction may be issued, the moving
party must establish: “(1) a substantial likelihood of success
on the merits; (2) irreparable injury will result if the
injunction does not issue; (3) the threatened injury to the
movant outweighs any damage the injunction may cause the
opposing party; and (4) issuance of the injunction would
not be adverse to the public interest.” Northern Natural
Gas Co. v. L.D. Drilling, Inc., 697 F.3d 1259, 1266 (10th
Cir. 2012) (internal quotation marks omitted). “Generally,
where the three latter factors weigh in favor of the movant,
the probability of success factor is relaxed.” Id. (internal
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© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2
alterations and quotation marks omitted). That is not the
case, however, where the requested injunction is one of three
disfavored types of preliminary injunctions, i.e., those that
alter the status quo, “mandatory” preliminary injunctions, and
those granting the moving party all the relief it could achieve
at trial. See id.; Flood v. ClearOne Commc'ns, Inc., 618 F.3d
1110, 1117 n.1 (10th Cir. 2010). With disfavored injunctions,
the movant must satisfy a heightened standard and make a
“strong showing” as to the likelihood of success on the merits
and that the balance of harm favors issuing the requested
injunction. See Northern Natural Gas Co., 697 F.3d at 1266;
ClearOne Commc'ns, Inc., 618 F.3d at 1117 n.1.
*2 In this case, Plaintiffs rely on the traditional four
requirements for granting injunctive relief. Although the
Court finds Plaintiffs seek a disfavored injunction and,
therefore, a heightened standard applies, it nonetheless
concludes such standard is satisfied. First, Plaintiffs have
made a strong showing of a substantial likelihood of success
on the merits of their claims. In Kitchen, the Tenth Circuit
held that Utah's same-sex marriage bans do not withstand
constitutional scrutiny as “under the Due Process and Equal
Protection Clauses of the United States Constitution, those
who wish to marry a person of the same sex are entitled
to exercise the same fundamental right as is recognized for
persons who wish to marry a person of the opposite sex.”
Kitchen, 2014 WL 2868044, at *32. Subsequently, the Tenth
Circuit decided Bishop v. Smith, Nos. 14–5003 & 14–5006,
––– F.3d ––––, 2014 WL 3537847 (10th Cir. July 18, 2014),
which reaffirmed that “[s]tate bans on the licensing of same-
sex marriage significantly burden the fundamental right to
marry.” Id. at *6. The Court agrees with the analysis in
Kitchen and Bishop that marriage is a fundamental right and
that the Challenged Laws impermissibly infringe upon that
right. The Court therefore concludes that Plaintiffs will likely
succeed in establishing that Colorado's ban impermissibly
violates Plaintiffs' constitutional rights. Accordingly, this
factor favors granting an injunction.
Next, Plaintiffs have also shown that substantial irreparable
injury will result if the injunction does not issue. Where
the harm is “great” or “substantial,” the deprivation of
constitutional rights, for even minimal periods of time,
constitutes irreparable harm. See Hobby Lobby Stores,
Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir. 2013)
(“establishing a likely [Religious Freedom Restoration Act]
violation satisfies the irreparable harm factor”), aff'd on
other grounds, 573 U.S. ––––, 2014 WL 2921709 (2014);
Heideman v. South Salt Lake City, 348 F.3d 1182, 1190
(10th Cir. 2003) (“[T]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury.” (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976)); 11A Charles Alan Wright et al., Federal
Practice & Procedure § 2948.1 (3d ed. 2014) (where
alleged deprivation of constitutional right is involved, “most
courts hold that no further showing of irreparable injury
is necessary”). Here, Plaintiffs' establishment of a violation
of their constitutional rights—their fundamental right to
marry and to have their marriages recognized—satisfies the
irreparable harm factor.
1
See Hobby Lobby, 723 F.3d at
1146.
1
Plaintiffs also rely on financial injury, e.g., money
to address estate planning issues that would not have
been required if they were considered married, but
such economic loss, without more, does not constitute
irreparable harm. See Heideman, 348 F.3d at 1189.
Third, the threatened injury to Plaintiffs by the enforcement
of Colorado laws which are unconstitutional outweighs any
damage the injunction may cause to Defendants. Due to
Defendants' non-opposition to the granting of an injunction,
they did not address in that context how this or any other
factor favored them. Nonetheless, in arguing for a stay of
the injunction, Defendants contend that enjoining a state
law as unconstitutional creates irreparable injury. But here,
the Court is enjoining state laws without opposition from
Defendants, which laws the Court has further found to be
clearly unconstitutional. Thus, the equities tip strongly in
favor of Plaintiffs.
Finally, the issuance of the injunction would not be adverse
to the public interest as “ ‘it is always in the public interest
to prevent the violation of a party's constitutional rights.’ ”
Hobby Lobby, 723 F.3d at 1147 (quoting Awad v. Ziriax, 670
F.3d 1111, 1132 (10th Cir. 2012)). Accordingly, this factor
also favors Plaintiffs.
In summary, even under the heightened standard, Plaintiffs
have shown that all the preliminary injunction factors tip in
their favor and that an injunction should be entered.
II. DEFENDANTS' MOTION TO STAY
Defendants' Motion to Stay raises the issue of whether this
Court should stay not only this Order, but also this entire
proceeding and await a determination of whether this case
may be affected—not by an appeal of this Order in this case
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but by an appeal of another order in another case, i.e., the
Kitchen case. This issue is far from simple.
*3 A stay is not a matter of right, but rather an exercise
of judicial discretion, the propriety of which is dependent
upon the circumstances of the particular case. See Nken v.
Holder, 556 U.S. 418, 433 (2009). The party requesting the
stay of an injunction bears the burden of showing that the
circumstances justify the exercise of that discretion. Id. at
433–434. The Tenth Circuit, indeed the Supreme Court as
well, has directed courts to apply certain accepted standards
in deciding whether to issue a stay. See Planned Parenthood
of Greater Texas Surgical Health Servs. v. Abbott, 134 S.Ct.
506, 506, 187 L.Ed.2d 465 (2013); FTC v. Mainstream Mktg.
Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003). Those factors
are: (1) the likelihood of success on the merits; (2) the threat
of irreparable harm if the stay is not granted; (3) the absence
of harm to opposing parties if the stay is granted; and (4) the
risk of harm to the public interest. See Planned Parenthood,
134 S.Ct. at 506; FTC, 345 F.3d at 852. “The first two factors
are the most critical.” Planned Parenthood, 134 S.Ct. at 506
(internal quotation marks omitted).
In this case, in terms of a stay of the preliminary injunction,
Defendants have not met their burden. As previously
discussed, on the state of the record currently before the
Court, it is Plaintiffs who have shown a likelihood of
success on the merits; it is Plaintiffs who suffer irreparable
harm if Colorado's unconstitutional same-sex marriage ban
is not enjoined; and it is Plaintiffs to whom the balance
of harm and the public interest favor. Additionally, in
light of Defendants' express non-opposition to the entry of
the injunction, Defendants cannot reasonably contend that
this Court abused its discretion in granting the preliminary
injunction and, concomitantly, no stay. See Aid for Women
v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006) (appellate
court reviews grant of preliminary injunction for abuse of
discretion).
2
2
As to Defendants Governor and Anderson, it is unclear
whether any argument by them that such factors are
satisfied would withstand inquiry where Defendant
Governor has affirmatively stated that Kitchen was
correctly decided and Defendant Anderson took no
position on the merits of the underlying legal issue in this
case.
For these reasons, the posture of this case differs from
many other cases being litigated in the federal court system
where stays have issued. While the Court acknowledges
that Defendants may file a protective appeal in this
matter, Defendants cannot meet the burden required for a
stay pending such appeal under the applicable standard.
Defendants have elected to adopt a practical approach before
this Court in recognizing the significance of Kitchen, but
one consequence of that approach and the “non-opposition”
to the requested injunction is that Defendants have not met
their burden with respect to a stay pending appeal under
the traditional rules. The factors used to assess whether an
injunction should enter are largely the same as those used to
determine whether a stay should enter. Having elected largely
to stand silent with respect to such factors in the context
of the injunction, Defendants have not put before this Court
sufficient support for the factors determining entitlement to
a stay of the injunction. Rather than take issue with this,
Defendant Attorney General argues that:
with same sex-marriage litigation, federal courts have
largely skipped a methodical assessment of those four
factors in favor of entering a stay due to the “unsettled”
nature of the constitutional questions regarding same-sex
marriage and the “confusion, potential inequity, and high
costs” that would likely result if the decision granting
injunctive relief were reversed on appeal.
(Attorney General's Reply, ECF No. 41, pages 6–7.)
*4 The Court agrees that in same-sex marriage cases the
federal courts appear to have often put aside the accepted
standards they have been repeatedly directed to apply or, as
the case may be, directed the lower federal courts to apply.
The Court concludes, however, that the basis on which this is
being done is much simpler than the nuanced considerations
being proffered by Defendant Attorney General. It is being
done largely because federal courts have interpreted Supreme
Court actions as implied directives to issue stays in these
matters. As the concurrence in the Ninth Circuit's Order
granting a stay stated:
On January 6, 2014, the Supreme
Court granted the State's application
for a stay pending the disposition
of the appeal in the Tenth Circuit.
Herbert v. Kitchen, 134 S.Ct. 893
(2014). Although the Supreme Court's
terse two-sentence order did not offer a
statement of reasons, I cannot identify
any relevant differences between the
situation before us today and Herbert.
And, although the Supreme Court's
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order in Herbert is not in the strictest
sense precedential, it provides a clear
message—the Court (without noted
dissent) decided that district court
injunctions against the application
of laws forbidding same-sex unions
should be stayed at the request of state
authorities pending court of appeals
review.
Latta v. Otter, No. 14–35420, Order, at 3 (9th Cir. May 20,
2014) (Hurwitz, J., concurring). See also DeBoer v. Snyder,
No. 14–1341, Order, at 1 (6th Cir. March 25, 2014) (“In
light of the Supreme Court's issuance of a stay in a similar
case, Herbert v. Kitchen, 134 S.Ct. 893 (2014), a stay of the
district court's order is warranted.”); Bostic v. Rainey, 970
F.Supp.2d 456, 484 (E.D.Va.2014) (same); DeLeon v. Perry,
975 F.Supp.2d 632, 666 (W.D.Tex.2014) (same).
Plaintiffs challenge the notion of any directive from the
Supreme Court by noting instances in which requests to the
Supreme Court for stays have been denied. In that regard,
Plaintiffs rely on National Organization for Marriage v.
Geiger, 134 S.Ct. 2722 (U.S. June 4, 2014) and Gaffney
v. Whitewood, No. 14–3048 (U.S. July 7, 2014). Plaintiffs'
reliance, however, is misplaced because in each case, the
applicant requesting the stay was a proposed intervenor who
sought to appeal the district court's order declaring the state's
same-sex marriage laws as unconstitutional. In short, they
were outsiders to the litigation.
There is at least one aspect of this case which differs from
other same-sex marriage cases being litigated elsewhere in the
federal system which has not been emphasized by the parties.
Here, the applicable appellate court has already spoken—
more than once. Kitchen, supra ; Bishop v. Smith, supra.
Thus, it is conceivable that any perceived “directive” from the
Supreme Court to let appellate courts consider this issue does
not apply here.
The Court has given strong consideration to this difference.
The proverbial wild card in the analysis is the recent stay
entered by the Supreme Court in Herbert v. Evans, No.
14A65, 2014 WL 3557112 (U.S. July 18, 2014). Evans
involved a preliminary injunction issued by the district court
to require Utah to recognize same-sex marriages resulting
from licenses issued in the “gap” between the time that an
injunction issued in Kitchen and the Supreme Court issued
a stay. The Evans defendants requested a stay which the
Tenth Circuit denied after analyzing the request under the
accepted standards and concluding that defendants failed
to meet their burden of showing a stay should be issued.
Evans v. State of Utah, No. 14–4060 (10th Cir. July 11,
2014). Notwithstanding this denial, and the fact that the Tenth
Circuit has already spoken in Kitchen, on July 18, 2014, the
Supreme Court still issued a stay “pending final disposition of
the appeal by the United States Court of Appeals for the Tenth
Circuit.” Herbert v. Evans, No. 14A65, 2014 WL 3557112
(July 18, 2014). But, making extraction of the meaning of the
stay in Evans more difficult, Evans is a “companion” case to
Kitchen, both addressing the application of Utah's same-sex
marriage laws.
*5 Based on the most recent stay, it appears to the Court that
it may well be that a message is being sent by the Supreme
Court. But this Court is not some modern day haruspex
skilled in the art of divination. This Court cannot—and, more
importantly, it will not—tell the people of Colorado that the
access to this or any other fundamental right will be delayed
because it “thinks” or “perceives” the subtle—or not so subtle
—content of a message not directed to this case. The rule of
law demands more.
The rules which this Court is to apply in deciding this matter
are set forth in Rule 62, Fed.R.Civ.P., and the standards
described earlier. As already explained above, Defendants are
not entitled to a stay order under the applicable rules. This is
where this Court's analysis must end.
The Court recognizes that the Tenth Circuit or the Supreme
Court may choose to issue a stay in this matter. And this
Court will not foreclose Defendants from having a fair
opportunity to seek such stay. Accordingly, as it pertains to
the preliminary injunction, this Court will temporarily stay
the preliminary injunction order until 8:00 a.m. on August
25, 2014, to permit Defendants time to seek a stay of the
injunction from a higher court.
As to a stay of further proceedings, apart from the preliminary
injunction, the Court exercises its discretion to stay such
proceedings in this matter. See Ryan v. Gonzales, 133 S.Ct.
696, 707–708, 183 L.Ed.2d 528 (2013); United Steelworkers
of America v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1227
(10th Cir. 2003). Kitchen will ultimately decide this matter
—by the denial of certiorari and issuance of the mandate
from the Tenth Circuit or by Supreme Court ruling. Indeed,
Defendant Attorney General orally conceded at the July 22,
2014 hearing that if the Kitchen decision is upheld or becomes
final, the Challenged Laws are unconstitutional. And a final
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merits determination here based on Kitchen will only trail
Kitchen in the appellate courts. Little would thus be served
by requiring the parties to incur the costs and expenses
of litigating to final proceedings in this case while trailing
Kitchen.
3
3
Defendant Attorney General has suggested that this
Court defer to earlier state litigation under the Colorado
River doctrine. Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800 (1976). This Court
declines to abstain from deciding, and thus to defer to the
state, matters of federal constitutional law.
III. CONCLUSION
Based on the foregoing, it is
ORDERED that Plaintiffs' Motion for Preliminary Injunction
(ECF No. 8) is GRANTED and Defendants are hereby
ENJOINED from enforcing or applying Article II, Section
31 of the Colorado Constitution and C.R.S. §§ 14–2–104(1)
(b) and 14–2–104(2) as a basis to deny marriage to same-sex
couples or to deny recognition of otherwise valid same-sex
marriages entered in other states; and
FURTHER ORDERED that Defendants' Motion to Stay
Proceedings and Non–Opposition to Proposed Preliminary
Injunction (ECF No. 16) is DENIED as to their request to stay
the preliminary injunction but GRANTED as to a stay of all
other proceedings in this case until three (3) days after the
final mandate is issued in Kitchen v. Herbert, No. 13–4178,
––– F.3d ––––, 2014 WL 2868044 (10th Cir. June 25, 2014),
or further order of this Court; and
FURTHER ORDERED that the preliminary injunction is
TEMPORARILY STAYED until 8:00 a.m. on Monday,
August 25, 2014, to allow Defendants time to seek relief from
the United States Court of Appeals for the Tenth Circuit or
the Supreme Court.
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
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2014 WL 2048343
Only the Westlaw citation is currently available.
United States District Court,
D. Utah,
Central Division.
Jonell EVANS, Stacia Ireland, Marina Gomberg,
Elenor Heyborne, Matthew Barraza, Tony Milner,
Donald Johnson, and Karl Fritz Shultz, Plaintiffs,
v.
State of UTAH, Governor Gary Herbert,
Attorney General Sean Reyes, Defendants.
Case No. 2:14CV55DAK. | Signed May 19, 2014.
Synopsis
Background: Same-sex couples legally married in Utah
following preliminary injunction barring enforcement of
statutory and constitutional bans on same-sex marriages, but
before entry of stay of injunction, brought action against State
of Utah, alleging Utah's refusal to recognize their marriages
pending appeal of decision on bans violated their due process
rights. Couples moved for preliminary injunction requiring
Utah to continue to recognize their marriages.
Holdings: The District Court, Dale A. Kimball, J., held that:
[1] couples' request was for a prohibitory injunction, not a
disfavored mandatory injunction;
[2] couples demonstrated a clear and unequivocal likelihood
of success on the merits;
[3] Utah's statutory and constitutional bans on same-sex
marriages did not apply retroactively;
[4] couples demonstrated they would suffer irreparable harm
in absence of preliminary injunction; and
[5] State was not entitled to stay pending appeal.
Motion granted.
Attorneys and Law Firms
Erik Strindberg, Kathryn K. Harstad, Lauren I. Scholnick,
Rachel E. Otto, Strindberg & Scholnick LLC, John M. Mejia,
Leah M. Farrell, ACLU of Utah, Salt Lake City, UT, Joshua
A. Block, American Civil Liberties Union Foundation, New
York, NY, for Plaintiffs.
Kyle J. Kaiser, Utah Attorney General, Joni J. Jones, Parker
Douglas, Salt Lake City, UT, for Defendants.
Opinion
MEMORANDUM DECISION AND ORDER
DALE A. KIMBALL, District Judge.
*1 This matter is before the court on Plaintiffs JoNell
Evans, Stacia Ireland, Marina Gomberg, Elenor Heyborne,
Matthew Barraza, Tony Milner, Donald Johnson, and Karl
Fritz Shultz's Motion for Preliminary Injunction, Plaintiffs'
Motion to Certify Questions of Utah State Law to the Utah
Supreme Court, and Defendants State of Utah, Governor Gary
Herbert, and Attorney General Sean Reyes' (collectively, “the
State”) Motion to Certify Questions of Utah State Law to the
Utah Supreme Court. The court held a hearing on Plaintiffs'
Motions on March 12, 2014.
1
At the hearing, Plaintiffs were
represented by Erik Strindberg, Joshua A. Block, and John
Mejia, and the State was represented by Joni J. Jones, Kyle
J. Kaiser, and Parker Douglas. After carefully considering
the parties' arguments, as well as the law and facts relevant
to the motions, the court enters the following Memorandum
Decision and Order.
FACTUAL BACKGROUND
The present lawsuit is brought by four same-sex couples
who were married in Utah between December 20, 2013,
and January 6, 2014. Plaintiffs allege deprivations of their
property and liberty interests under Utah and federal law
resulting from the State of Utah's failure to recognize their
marriages.
A. Kitchen v. Herbert Case
On December 20, 2013, United States District Judge
Robert J. Shelby issued a ruling in Kitchen v. Herbert,
2:13cv217RJS, 2013 WL 6834634 (D.Utah Dec. 23, 2013),
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enjoining the State of Utah from enforcing its statutory
and constitutional bans on same-sex marriages (collectively,
“marriage bans”).
2
The State did not request a stay of the
ruling in the event that it lost, and the court's decision did not
sua sponte stay the ruling pending appeal. After learning of
the adverse ruling, the State then requested a stay from the
district court, which Judge Shelby denied on December 23,
2013. The Tenth Circuit denied the State's subsequent request
for a stay on December 24, 2013. The State moved for a stay
with the United States Supreme Court on December 31, 2013,
and the Supreme Court granted a stay on January 6, 2014
(“Stay Order”).
B. State's Response to Kitchen Decision
After the Kitchen decision was issued on December 20, 2013,
some county clerks began issuing marriage licenses to same-
sex couples that same day. On December 24, 2013, Governor
Herbert's office sent an email to his cabinet, stating: “Where
no conflicting laws exist you should conduct business in
compliance with the federal judge's ruling until such time that
the current district court decision is addressed by the 10th
Circuit Court.” Also on that day, a spokesperson for the Utah
Attorney General's Office publicly stated that county clerks
who did not issue licenses could be held in contempt of court.
Between December 20, 2013 and January 6, 2014, the State
of Utah issued marriage licenses to over 1,300 same-sex
couples. While it is not known how many of those couples
granted licenses solemnized their marriages before January 6,
2014, news reports put the number at over 1,000.
*2 The United States Supreme Court's January 6, 2014 Stay
Order did not address the legal status of the marriages entered
into by same-sex couples in Utah between December 20,
2013, and January 6, 2014, as a result of the Kitchen decision.
The Supreme Court's Stay Order stated:
The application for stay presented to
Justice Sotomayor and by her referred
to the Court is granted. The permanent
injunction issued by the United States
District Court for the District of Utah,
case no. 2:13–cv–217, on December
20, 2013, is stayed pending final
disposition of the appeal by the United
States Court of Appeals for the Tenth
Circuit.
Also on January 6, 2014, after the Supreme Court's Stay
Order, Utah Attorney General Sean Reyes issued the
following statement: “Utah's Office of Attorney General is
carefully evaluating the legal status of the marriages that were
performed since the District Court's decision and will not rush
to a decision that impacts Utah citizens so personally.”
Two days later, Governor Herbert's chief of staff sent an
email to the Governor's cabinet informing them of the
Supreme Court's stay and stating that “[b]ased on counsel
from the Attorney General's Office regarding the Supreme
Court decision, state recognition of same-sex marital status
is ON HOLD until further notice.” The email stated that
the cabinet members should “understand this position is not
intended to comment on the legal status of those same-
sex marriages—that is for the courts to decide. The intent
of this communication is to direct state agency compliance
with current laws that prohibit the state from recognizing
same-sex marriages.” Furthermore, the email instructed
that “[w]herever individuals are in the process of availing
themselves of state services related to same-sex martial status,
that process is on hold and will stay exactly in that position
until a final court decision is issued.”
The next day, Attorney General Reyes issued a letter
to county attorneys and county clerks to provide “legal
clarification about whether or not to mail or otherwise provide
marriage certificates to persons of the same sex whose
marriage ceremonies took place between December 20, 2013,
and January 6, 2014, prior to the issuance of the stay by the
U.S. Supreme Court.” Attorney General Reyes continued that
“although the State of Utah cannot currently legally recognize
marriages other than those between a man and a woman,
marriages between persons of the same sex were recognized
in the State of Utah between the dates of December 20, 2013
until the stay on January 6, 2014. Based on our analysis
of Utah law, the marriages were recognized at the time
the ceremony was completed.” He explained that “the act
of completing and providing a marriage certificate for all
couples whose marriage was performed prior to the morning
of January 6, 2014, is administrative and consistent with Utah
law” and “would allow, for instance, same-sex couples who
solemnized their marriage prior to the stay to have proper
documentation in states that recognize same-sex marriage.”
*3 Furthermore, Attorney General Reyes stated that the
State of Utah would not challenge the validity of those
marriages for the purposes of recognition by the federal
government or other states. But, “the validity of the marriages
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in question must ultimately be decided by the legal appeals
process presently working its way through the courts.”
On January 15, 2014, the Utah State Tax Commission issued
a notice stating that same-sex couples “may file a joint return
if they [were] married as of the close of the tax year” for 2013
because “[a]s of December 31, 2013, the Supreme Court had
not yet issued its stay of the District Court's injunction.” The
notice further stated: “This notice is limited to the 2013 tax
year. Filing information for future years will be provided as
court rulings and other information become available.”
C. Plaintiffs' Responses to Kitchen Decision
Plaintiffs Marina Gomberg and Elenor Heyborne obtained
their marriage license and solemnized their marriage on
December 20, 2013. They had been in a relationship for nine
years and had previously performed a commitment ceremony
in May 2009, even though the State of Utah did not recognize
the union. They have been contemplating having a baby but
are worried about protecting their family because the State
of Utah will only allow one of them to be a legal parent to
any children that they raise together. Gomberg and Heyborne
do not want to move to another state to have their marriage
recognized.
Plaintiffs Matthew Barraza and Tony Milner also obtained
their marriage license and solemnized their marriage on
December 20, 2013. They had been in a committed
relationship for nearly 11 years. In 2010, Barraza and Milner
traveled to Washington, D.C., and got married. However,
Utah law prevented any recognition of their marriage in Utah.
In 2009, Barraza adopted a son, J., who is now four years old.
Under Utah law, Milner was not allowed to be an adoptive
parent to J. even though he and Barraza are jointly raising J.
On December 26, 2013, Barraza and Milner initiated court
proceedings for Milner to adopt their son. The court
scheduled a hearing date for January 10, 2014. On January
9, 2014, the court informed them that the court had decided
to stay the adoption proceedings to consider whether the
Utah Attorney General's Office should be notified of the
proceedings and allowed to intervene. The court held a
hearing on January 29, 2014, and ruled that the Attorney
General's Office should be given notice. The Attorney
General's Office declined to intervene but filed a brief stating
that the court should stay the proceedings until the Tenth
Circuit decided the appeal in Kitchen. On March 26, 2014, the
state court judge, the Honorable Andrew H. Stone, rejected
the Attorney General's arguments and ordered that Milner
should be allowed to adopt J.
On April 1, 2014, Milner and Barraza's attorney went to
the Utah Department of Health, Office of Vital Records, to
obtain a new birth certificate for J. based on Judge Stone's
Decree of Adoption. Although he presented a court-certified
decree of adoption and report of adoption, which are the only
records needed under Utah law and regulation to create a new
birth certificate based on adoption, the registrar refused to
issue a new birth certificate. The registrar asked for a copy
of Barraza and Milner's marriage certificate, even though a
marriage certificate is not usually required, and contacted the
Utah Attorney General's Office. Two attorneys from the Utah
Attorney General's Office instructed the registrar not to issue
the amended birth certificate for J.
*4 On April 7, 2014, the Utah Department of Health
served Milner and Barraza with a Petition for Emergency
Extraordinary Relief, which it had filed in the Utah Supreme
Court. In that Petition, the Department of Health requests a
court order relieving it from recognizing Judge Stone's decree
of adoption because it recognizes Milner and Barraza's same-
sex marriage. On May 7, 2014, Judge Stone issued an order
for the Attorney General and other state officials to show
cause why they should not be held in contempt for refusing
to comply with the court's order to issue an amended birth
certificate. On May 16, 2014, the Utah Supreme Court issued
an order staying enforcement of the state court orders and
stating that a briefing schedule on the writ would be set.
Plaintiffs JoNell Evans and Stacia Ireland also obtained a
marriage license and solemnized their marriage on December
20, 2013. Evans and Ireland had been in a relationship for 13
years. In 2007, they had a religious marriage ceremony at the
Unitarian Church in Salt Lake City, but the marriage was not
recognized by the State of Utah.
Evans and Ireland have tried to obtain rights through the use
of medical powers of attorney because Ireland has had serious
health issues recently. In 2010, Ireland suffered a heart attack.
With the power of attorney, Evans was allowed to stay with
Ireland during her treatment but did not feel as though she was
given the same rights as a spouse. On January 1, 2014, Evans
again had to rush Ireland to the hospital emergency room
because Ireland was experiencing severe chest pains. Unlike
her previous experience, Evans was afforded all courtesies
and rights given to the married spouse of a patient. Now that
the State no longer recognizes their marriage, Evans does
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not know how she will be treated if there is another medical
situation.
Plaintiffs Donald Johnson and Karl Fritz Shultz got their
marriage license and solemnized their marriage on December
23, 2013, after waiting in line for approximately eight hours.
Johnson and Shultz have been in a relationship for over
21 years. Johnson first proposed to Shultz the Sunday after
Thanksgiving in 1992, and the couple had continued to
celebrate that day as their anniversary. Johnson researched
insurance coverage for himself and Shultz and discovered
that they could save approximately $8,000.00 each year on
health insurance. They will lose that savings without state
recognition of their marriage.
LEGAL ANALYSIS
Plaintiffs' Motion for Preliminary Injunction
Plaintiffs seek a preliminary injunction requiring the State
to continue recognizing the marriages Plaintiffs entered into
pursuant to valid Utah marriage licenses between December
20, 2013, and January 6, 2014. The State continues to
recognize Plaintiffs' marriages for purposes of joint state
tax filings for 2013 and already-issued state documents
with marriage-related name changes. However, for all other
purposes, the State is applying its marriage bans retroactively
to Plaintiffs' marriages. Plaintiffs seek an injunction requiring
the State to continue recognizing their marriages as having
all the protections and responsibilities given to all married
couples under Utah law.
I. Preliminary Injunction Standard
*5 [1] [2] Preliminary injunctive relief is appropriate if
the moving party establishes: “(1) a likelihood of success
on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3) that
the balance of equities tips in the movant's favor; and (4) that
the injunction is in the public interest.” RoDa Drilling Co.
v. Siegal, 552 F.3d 1203, 1208 (10th Cir.2009). Because a
preliminary injunction is an extraordinary remedy, the “right
to relief must be clear and unequivocal.” SCFC ILC, Inc. v.
Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991).
[3] In the Tenth Circuit, certain types of injunctions
are disfavored: “(1) preliminary injunctions that alter the
status quo; (2) mandatory preliminary injunctions; and (3)
preliminary injunctions that afford the movant to all the
relief that it could recover at the conclusion of a full trial
on the merits.” Schrier v. University of Colo., 427 F.3d
1253, 1259 (10th Cir.2005) (quoting O Centro Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973,
977 (10th Cir.2004)). “Such disfavored injunctions ‘must be
more closely scrutinized to assure that the exigencies of that
case support the granting of a remedy that is extraordinary
even in the normal course.’ ” Id. “Movants seeking such an
injunction are not entitled to rely on this Circuit's modified-
likelihood-of-success-on-the-merits standard.” O Centro, 389
F.3d at 976. The moving party must make “a strong showing
both with regard to the likelihood of success on the merits
and with regard to the balance of harms.” Awad v. Ziriax, 670
F.3d 1111, 1125 (10th Cir.2012).
[4] The status quo for purposes of a preliminary injunction
is “the ‘last peaceable uncontested status existing between
the parties before the dispute developed.’ ” Schrier, 427 F.3d
at 1260. In this case, the last peaceable uncontested status
between the parties was when the State recognized Plaintiffs'
marriages. Therefore, the requested preliminary injunction
does not disturb the status quo.
[5] However, the State argues that Plaintiffs' requested
preliminary injunction is a disfavored injunction because
it is mandatory rather than prohibitory. An injunction is
mandatory if it will “affirmatively require the nonmovant
to act in a particular way, and as a result ... place[s] the
issuing court in a position where it may have to provide
ongoing supervision to assure the nonmovant is abiding by the
injunction.” Id. at 1261. The Tenth Circuit has recognized that
“[t]here is no doubt that determining whether an injunction
is mandatory as opposed to prohibitory can be vexing.”
O Centro, 389 F.3d at 1006. “ ‘In many instances, this
distinction is more semantical than substantive. For to order
a party to refrain from performing a given act is to limit
his ability to perform any alternative act; similarly, an order
to perform in a particular manner may be tantamount to a
proscription against performing in any other.’ ” Id. (citation
omitted).
*6 [6] In this case, the court could characterize Plaintiffs'
requested injunction as prohibiting the State from enforcing
its marriage bans against couples who already have vested
marriage rights or affirmatively requiring the State to
recognize Plaintiffs' vested marriage rights. In large part, it
is a matter of semantics rather than substance. Preventing the
State from applying its marriage bans retroactively is the same
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thing as requiring the State to recognize marriages that were
entered into when such marriages were legal.
As to the second element of a mandatory injunction, however,
there is no evidence to suggest that this court would be
required to supervise the State if the court granted Plaintiffs'
requested injunction. The State's position is that it is required
by Utah law to apply Utah's marriage bans to all same-sex
marriages until a court decides the issue. The Directive that
went to Governor Herbert's cabinet stated that the “legal
status” of the same-sex marriages that took place before the
Supreme Court stay was “for the courts to decide.” And
Attorney General Reyes recognized that the validity of the
marriages in question must ultimately be decided by the legal
process. Based on the State's compliance with the injunction
in Kitchen prior to the Supreme Court's Stay Order, there is
no basis for assuming that the State would need supervision in
implementing an order from this court recognizing the same-
sex marriages.
Neither party raised the issue of whether this is an injunction
that would provide Plaintiffs with all the relief they could
receive from a trial on the merits. Plaintiffs seek declaratory
and injunctive relief that their marriages continue to be valid
under Utah and federal law. However, Plaintiffs have pleaded
a cause of action for the deprivation of property and liberty
interests in violation of the United States Constitution under
42 U.S.C. § 1983. A determination that the State has deprived
Plaintiffs of their constitutional rights could, therefore, result
in at least nominal damages at trial.
3
The court concludes, therefore, that the requested injunction
is not a disfavored injunction which would require the clear
and unequivocal standard to apply to the likelihood of success
on the merits element. Based on this court's analysis, the
preliminary injunction does not alter the status quo, is not
mandatory, and does not afford Plaintiff all the relief that
could be awarded at trial. However, to the extent that the
requested injunction could be construed as a mandatory
injunction, the court will analyze the likelihood of success on
the merits under the clear and unequivocal standard.
II. Merits
Because the court is applying the heightened standard to
Plaintiffs' request for a preliminary injunction, the court will
address the likelihood of success on the merits first and then
each element in turn.
A. Likelihood of Success on the Merits
Plaintiffs argue that they are likely to succeed on their state
and federal claims because they became vested in the rights
attendant to their valid marriages at the time those marriages
were solemnized and the State is required, under the state
and federal due process clauses, to continue recognizing their
marriages despite the fact that Utah's same-sex marriage bans
went back into effect on January 6, 2014. In their Complaint,
Plaintiffs bring causes of action for violations of their due
process and liberty interests under the Utah and United States
Constitutions. Article I, Section 7 of the Utah Constitution
provides that “[n]o person shall be deprived of life, liberty
or property, without due process of law.” The Fourteenth
Amendment to the United States Constitution guarantees that
“No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
*7 The Utah Supreme Court has recognized that “the
standards for state and federal constitutional claims are
different because they are based on different constitutional
language and different interpretive law.” Jensen ex rel. Jensen
v. Cunningham, 250 P.3d 465, 477 (Utah 2011). While
the language may be similar, the Utah Supreme Court has
explained that federal standards do not “foreclose [its] ability
to decide in the future that [its] state constitutional provisions
afford more rights than the federal Constitution.” Id. at
478 (concluding that conduct that did not give rise to a
federal constitutional violation could still give rise to a state
constitutional violation). Recognizing that the Utah Supreme
Court has the prerogative to find that the state due process
clause affords more protections, the court will analyze the
issue under only federal due process standards.
As an initial matter, the court notes that this case is not
about whether the due process clause should allow for same-
sex marriage in Utah or whether the Kitchen decision from
this District was correct. That legal analysis is separate and
distinct from the issues before this court and is currently on
appeal to the Tenth Circuit Court of Appeals. This case deals
only with whether Utah's marriage bans preclude the State of
Utah from recognizing the same-sex marriages that already
occurred in Utah between December 20, 2013, and January
6, 2014.
Plaintiffs bring their federal violation of due process and
liberty interests claim under 42 U.S.C. § 1983. While Section
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1983 “does not provide any substantive rights” of its own, it
provides “a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and
federal statutes that it describes.” See Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60
L.Ed.2d 508 (1979); Baker v. McCollan, 443 U.S. 137, 144
n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
[7] “To state a claim for a violation of due process,
plaintiff must first establish that it has a protected property
interest and, second, that defendants' actions violated that
interest.” Crown Point I, LLC v. Intermountain Rural Elec.
Ass'n, 319 F.3d 1211, 1216 (10th Cir.2003). “The Supreme
Court defines ‘property’ in the context of the Fourteenth
Amendment's Due Process Clause as a ‘legitimate claim
of entitlement’ to some benefit.” Hyde Park Co. v. Santa
Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000)
(quoting Board of Regents v. Roth, 408 U.S. 564, 577,
92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). These claims of
entitlement generally “arise from independent sources such as
state statutes, local ordinances, established rules, or mutually
explicit understandings.” Dickeson v. Quarberg, 844 F.2d
1435, 1437 (10thCir.1988). In assessing a due process claim,
the Tenth Circuit has recognized that “a liberty interest can
either inhere in the Due Process Clause or it may be created
by state law.” Elwell v. Byers, 699 F.3d 1208, 1213 (10th
Cir.2012).
1. Interest Inherent in the Due Process
*8 In finding a liberty interest inherent in the Due Process
Clause, the Tenth Circuit explained that “[t]here can be no
doubt that ‘freedom of personal choice in matters of marriage
and family life is one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment.’ ” Id. at 1215
(quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632,
639–40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974)). “As the Court
declared in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67
L.Ed. 1042 (1923), the liberty guaranteed by the Due Process
Clause ‘denotes not merely freedom from bodily restraint but
also the right of the individual ... to marry, establish a home
and bring up children.’ ” Id.
In Windsor, the United States Supreme Court struck down
the federal Defense of Marriage Act because it was
“unconstitutional as a deprivation of the liberty of the person
protected by” the Due Process Clause. Id. In prior cases, the
court has also found that “the relationship of love and duty
in a recognized family unit is an interest in liberty entitled to
constitutional protection.” Lehr v. Robertson, 463 U.S. 248,
258, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).
[8] In this case, Plaintiffs solemnized legally valid marriages
under Utah law as it existed at the time of such solemnization.
At that time, the State granted Plaintiffs all the substantive
due process and liberty protections of any other marriage.
The Windsor Court held that divesting “married same-sex
couples of the duties and responsibilities that are an essential
part of married life” violates due process. United States v.
Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 2695, 186 L.Ed.2d
808 (2013).
As in Windsor, the State's decision to put same-sex marriages
on hold, “deprive[s] some couples married under the laws
of their State, but not other couples, of both rights and
responsibilities.” Id. at 2694. Similarly, the “principal effect”
of the State's actions “is to identify a subset of state-
sanctioned marriages and make them unequal.” The court,
therefore, concludes that under Tenth Circuit law, Plaintiffs
have demonstrated a liberty interest that inheres in the Due
Process Clause.
2. Interest Created by State Law
Plaintiffs have also asserted that they have a state property
interest in their valid marriages under Utah state law. The
only state court to look at an issue similar to the one before
this court is the California Supreme Court in Strauss v.
Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48
(2009). The Strauss court addressed the continuing validity
of the same-sex marriages that occurred after the California
Supreme Court decision allowing same-sex marriage under
the California Constitution and the passage of Proposition
8, which amended the California Constitution to preclude
same-sex marriages. Id., 93 Cal.Rptr.3d 591, 207 P.3d at
119–22. The Strauss court began its analysis by recognizing
the presumption against finding an enactment to have
retroactive effect and examining the language of Proposition
8 to determine whether the amendment could be applied
retroactively. Id., 93 Cal.Rptr.3d 591, 207 P.3d at 120–
21. The court concluded that Proposition 8 did not apply
retroactively. Id.
*9 In making its determination on retroactivity, the court
also acknowledged that its “determination that Proposition
8 cannot properly be interpreted to apply retroactively
to invalidate lawful marriages of same-sex couples that
were performed prior to the adoption of Proposition 8 is
additionally supported by our recognition that a contrary
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resolution of the retroactivity issue would pose a serious
potential conflict with the state constitutional due process
clause.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 121.
The Strauss court explained that its “past cases establish that
retroactive application of a new measure may conflict with
constitutional principles ‘if it deprives a person of a vested
right without due process of law.’ ” Id. (citations omitted).
“In determining whether a retroactive law contravenes the
due process clause,” the court must “consider such factors
as the significance of the state interest served by the law,
the importance of the retroactive application of the law to
the effectuation of that interest, the extent of reliance upon
the former law, the legitimacy of that reliance, the extent of
actions taken on the basis of that reliance, and the extent
to which the retroactive application of the new law would
disrupt those actions.” Id.
Applying these principles to whether the same-sex marriages
entered into prior to Proposition 8 should remain valid,
the Strauss court concluded that applying Proposition 8
retroactively “would create a serious conflict between the
new constitutional provision and the protections afforded by
the state due process clause.” Id. at 122. The court reasoned
that the same-sex couples “acquired vested property rights
as lawfully married spouses with respect to a wide range
of subjects, including, among many others, employment
benefits, interests in real property, and inheritances.” Id.
Furthermore, the couples' reliance was “entirely legitimate,”
and “retroactive application of the initiative would disrupt
thousands of actions taken in reliance on the [prior court
ruling] by these same-sex couples, their employers, their
creditors, and many others, throwing property rights into
disarray, destroying the legal interests and expectations of
thousands of couples and their families, and potentially
undermining the ability of citizens to plan their lives
according to the law as it has been determined by this state's
highest court.” Id. “By contrast, a retroactive application
of Proposition 8 is not essential to serve the state's current
interest (as reflected in the adoption of Proposition 8) in
preserving the traditional definition of marriage by restricting
marriage to opposite-sex couples; that interest is honored
by applying the measure prospectively and by having the
traditional definition of marriage enshrined in the state
Constitution where it can be altered only by a majority of
California voters.” Id.
In this case, the State seeks to apply its marriage bans
retroactively to Plaintiff's previously-entered marriages. The
marriage bans were legal nullities at the time Plaintiffs were
married. However, once the Supreme Court entered its Stay
Order, the State asserts that the marriage bans went back into
effect.
*10 [9] Like California, Utah law has a strong presumption
against retroactive application of laws. “Constitutions, as
well as statutes, should operate prospectively only unless the
words employed show a clear intention that they should have
a retroactive effect.” Shupe v. Wasatch Elec. Co., 546 P.2d
896, 898 (Utah 1976). The presumption against retroactive
application of changes in the law is deeply rooted in principles
of fairness and due process. The United States Supreme
Court has explained that “the presumption against retroactive
legislation ... embodies a legal doctrine centuries older than
our Republic.” Landgraf v. USI Film Prods., 511 U.S. 244,
266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). “The principle
that the legal effect of conduct should ordinarily be assessed
under the law that existed when the conduct took place has
timeless and universal appeal.” Id.
[10] [11] Because retroactive application of a law is highly
disfavored, “a court will and ought to struggle hard against
a construction which will, by retrospective operation, affect
the rights of parties.” Thomas v. Color Country Mgmt., 84
P.3d 1201, 1210 (Utah 2004) (Durham, C.J., concurring).
Utah's presumption against retroactivity can be overcome
only by “explicit statements that the statute should be applied
retroactively or by clear and unavoidable implication that the
statute operates on events already past.” Evans & Sutherland
Computer Corp. v. Utah State Tax Comm'n, 953 P.2d 435,
437 (Utah 1997).
In this case, Utah's statutory and constitutional provisions do
not explicitly state that they apply retroactively. Utah Code
Section 30–1–2 states that marriages “between persons of the
same sex” “are prohibited and declared void.” Utah Code
Ann. § 30–1–2(5). Utah Code Section 30–1–4.1 provides: “It
is the policy of this state to recognize as marriage only the
legal union of a man and a woman;” and “this state will not
recognize, enforce, or give legal effect to any law creating
any legal status, rights, benefits, or duties [to same-sex
couples] that are substantially equivalent to those provided
under Utah law to a man and a woman because they are
married.” Id. § 30–1–4.1(1)(a), (b). Article I, Section 29 to
the Utah Constitution provides: “(1) Marriage consists only
of the legal union between a man and a woman. (2) No other
domestic union, however denominated, may be recognized as
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a marriage or given the same or substantially equivalent legal
effect.”
The use of the present tense in these same-sex marriage
bans indicates that the bans do not apply retroactively. In
Waddoups v. Noorda, 2013 UT 64, 321 P.3d 1108, the Utah
Supreme Court stated: “It simply cannot be said that the use
of the present tense communicates a clear and unavoidable
implication that the statute operates on events already past.
If anything, use of the present tense implies an intent that
the statute apply to the present, as of its effective date, and
continuing forward.” Id. at ¶ 7.
*11 The Waddoups court's analysis is consistent with the
Strauss court's conclusion that Proposition 8's use of the
present tense did not retroactively apply to prior marriages
because “a measure written in the present tense (‘is valid or
recognized’) does not clearly demonstrate that the measure
is intended to apply retroactively.” Strauss, 93 Cal.Rptr.3d
591, 207 P.3d at 120. The Waddoups' decision is further
consistent with other courts concluding that statutes stating
that a marriage “is prohibited and void” does not apply
retroactively. See Cook v. Cook, 209 Ariz. 487, 104 P.3d
857, 865 n. 2 (Ariz.Ct.App.2005) (finding “[m]arriage ...
between first cousins is prohibited and void” does not
apply retroactively); Succession of Yoist, 132 La. 309, 61
So. 384, 385 (1913) (statute declaring, “Marriages between
white persons and persons of color are prohibited, and
the celebration of such marriages is forbidden, and such
celebration carries with it no effect, and is mull and void,”
does not apply retroactively).
[12] Thus, the use of present and future tenses in Utah's
marriage bans does not provide a “clear and unavoidable”
implication that they “operate on events already past.”
Waddoups, 2013 UT at ¶ 7. The court concludes that,
under Utah law, nothing in the language of Utah's marriage
bans indicates or implies that the bans should or can apply
retroactively.
Moreover, nothing in the United States Supreme Court's Stay
Order speaks to the legal status of the marriages that had
already taken place or whether Utah's marriage bans would
have retroactive effect when they were put back in place.
While the State asserts that the Stay Order placed the marriage
bans back into effect as of December 20, 2013, the State
cites to no language in the Stay Order that would support that
assertion. In addition, the State has not presented any case law
indicating that a Stay Order has that effect.
The State argues that application of Utah's previously existing
marriage bans after the Supreme Court's Stay Order is not
retroactive application of the bans because the laws were
enacted long before Plaintiffs entered into their marriages.
However, this argument completely ignores the change in the
law that occurred. The marriage bans became legal nullities
when the Kitchen decision was issued and were not reinstated
until the Stay Order. In addition, the State's argument fails
to recognize that Utah law defines a retroactive application
of a law as an application that “ ‘takes away or impairs
vested rights acquired under existing laws ... in respect to
transactions or considerations already past.’ ” Payne By and
Through Payne v. Myers, 743 P.2d 186, 190 (Utah 1987).
Under this definition, the State's application of the marriage
bans to place Plaintiffs' marriages “on hold,” necessarily
“takes away or impairs vested rights acquired under existing
law.”
When discussing the due process concerns implicated in a
retroactive application of Proposition 8, the Strauss court had
clear California precedents to rely upon that identified the
state's recognition of vested rights in marriage. 93 Cal.Rptr.3d
591, 207 P.3d at 121. In this case, however, the State disputes
whether Plaintiffs have vested rights in their marriages under
Utah law.
*12 [13] Under Utah law, a marriage becomes valid on the
date of solemnization. See Walters v. Walters, 812 P.2d 64, 68
(Utah Ct.App.1991); State v. Giles, 966 P.2d 872, 877 (Utah
Ct.App.1998) (marriage valid from date of solemnization,
even if officiant does not return certificate to county clerk).
There is no dispute in this case that Plaintiffs' marriages
were valid under the law as it existed at the time they were
solemnized. In Miller v. USAA Cas. Ins. Co., 44 P.3d 663, 674
(Utah 2002), the Utah Supreme Court recognized that the due
process protection in the Utah Constitution “is not confined
to mere tangible property but extends to every species of
vested rights.” And, as early as 1892, the Utah Supreme
Court recognized the fundamental vested rights associated
with marriage. Tufts v. Tufts, 8 Utah 142, 30 P. 309, 310
(1892).
In Tufts v. Tufts, the court addressed the retroactive
application of divorce laws and stated that the rights and
liabilities of spouses “grew out of a contract governing the
marriage relation which existed at the time” the alleged
conduct occurred. Id. The court relied on precedent stating
that “[w]hen a right has arisen upon a contract, or a transaction
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in the nature of a contract, authorized by statute, and has
been so far perfected that nothing remains to be done by the
party asserting it, the repeal of the statute does not affect
it, or any action for its enforcement. It has then become a
vested right, which stands independent of the statute.” Id. The
court also stated that the rights and liabilities of spouses are
“sacred” and, “while the relation is based upon contract,” “it
is a contract that differs from all others, and is the basis of
civilized society.” Id. at 310–11.
In this case, Plaintiffs' marriages were authorized by law at the
time they occurred. The marriages were solemnized and valid
under the existing law so that nothing remained to be done.
No separate step can or must be taken after solemnization for
the rights of a marriage to vest. Moreover, Plaintiffs began to
exercise the rights associated with such valid marriages prior
to the entry of the Supreme Court's Stay Order. As in Tufts,
therefore, the change in the law does not affect the vested
rights associated with those marriages. The vested rights
in Plaintiffs' validly-entered marriages stand independent of
the change in the law. For over a hundred years, the Tufts
decision has never been called into question because it states
a fundamental principle of basic fairness.
This application of Utah law is consistent with the Strauss
court's recognition that the “same-sex couples who married
after the [court's] decision in the Marriage Cases ... and before
Proposition 8 was adopted, acquired vested property rights
as lawfully married spouses with respect to a wide range
of subjects, including, among many others, employment
benefits, interests in real property, and inheritances.” 93
Cal.Rptr.3d 591, 207 P.3d at 121. Moreover, the State
has failed to cite any law from any jurisdiction supporting
the proposition that rights in a valid marriage do not vest
immediately upon valid solemnization of the marriage.
*13 Plainly, to deprive Plaintiffs of the vested rights in
their validly-entered marriages raises the same due process
concerns that were addressed in Strauss. The State argues that
Plaintiffs in this case do not have a property interest in their
marriages because their right to marry was based on a non-
final district court opinion instead of a decision by the state's
highest court as in Strauss. To make this argument, however,
the State cites to cases involving non-final consent decrees
that are factually distinct from a final district court judgment
and that are wholly irrelevant to the issue before this court.
[14] [15] While a factual difference exists between this
case and Strauss, the court finds no basis for legally
distinguishing between the final judgment in Kitchen and the
California Supreme Court's decision in its marriage cases.
Both decisions allowed for same-sex couples to marry legally.
“[A]n appeal from a decree granting, refusing or dissolving
an injunction does not disturb its operative effects.” Hovey
v. McDonald, 109 U.S. 150, 161, 3 S.Ct. 136, 27 L.Ed. 888
(1883). “The general rule is that the judgment of a district
court becomes effective and enforceable as soon as it is
entered; there is no suspended effect pending appeal unless a
stay is entered.” In re Copper Antitrust Litig., 436 F.3d 782,
793 (7th Cir.2006).
The State's arguments as to Plaintiffs' reliance on the final
judgment in Kitchen also ignore the fact that Plaintiffs
are claiming a vested right in their validly-entered legal
marriages. Plaintiffs are not claiming they have a vested
right in the continuation of the Kitchen injunction or
judgment. Plaintiffs contend that their rights vested upon
the solemnization of their valid marriages and that their
validly-entered marriages do not rely on the continuation or
reinstatement of the Kitchen injunction. Thus Plaintiffs seek
recognition of their marriages separate and apart from the
ultimate outcome of the Kitchen appeals.
Plaintiffs' claims, therefore, are factually and legally
distinguishable from the cases the State cites applying the
“vested rights doctrine.” See Axel Johnson, Inc. v. Arthur
Andersen & Co., 6 F.3d 78 (2d Cir.1993); Casiano–Montanez
v. State Ins. Fund Corp., 707 F.3d 124 (1stCir.2013). In
those cases, the plaintiffs were relying on rights fixed by a
district court judgment, whereas, Plaintiffs, in this case, are
relying on the validity of their marriage licenses. The State, in
this case, issued and recognized Plaintiffs' marriage licenses,
which became valid under Utah law when the marriages
were solemnized. The State did not issue provisionally-
valid marriage licenses. Moreover, Plaintiffs' vested rights
in their legally recognized marriages are not dependent on
the ultimate outcome in Kitchen. Whether or not Kitchen
is ultimately upheld, the district court's injunction was
controlling law and Utah's marriage bans were a legal nullity
until the Supreme Court issued the Stay Order on January 6,
2014. See Howat v. State of Kansas, 258 U.S. 181, 189–90, 42
S.Ct. 277, 66 L.Ed. 550 (1922) (“An injunction duly issuing
out of a court ... must be obeyed ... however erroneous the
action of the court may be.”).
*14 The State further argues that Plaintiffs' marriages
can be declared legal nullities if the Kitchen decision is
overturned because the law has recognized instances when
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traditional marriages thought to be valid are later declared
legal nullities. However, the instances in which courts have
declared such marriages void involve mistakes of fact. In Van
Der Stappen v. Van Der Stappen, 815 P.2d 1335, 1338 (Utah
Ct.App.1991), the wife discovered that she had not completed
a previous divorce at the time of her subsequent marriage.
In the present case, the marriages were valid under the law
at the time they were solemnized and there is no alleged
mistake of fact. Therefore, the comparison is inapposite.
Cases involving marriages that were invalid at their inception
are not helpful or relevant. This case is also distinguishable
from cases where county clerks spontaneously started issuing
same-sex marriage licenses without any court order or basis
in state law. Unlike the cases before this court, those cases
were also invalid at their inception.
The more analogous case is presented in Cook v. Cook, where
the court recognized that refusing to recognize an out-of-
state marriage that had previously been recognized within the
state would violate constitutional due process guarantees. 209
Ariz. 487, 104 P.3d 857, 866 (Ariz.App.2005). In Cook, the
statutory scheme in place when the couple moved to the state
expressly allowed the marriage, but a subsequent amendment
made such a marriage void. Id. The court refused to find all
such marriages in the state on the date of the amendment void
because the couples in the state with such marriages already
had constitutionally vested rights in their marriages. Id.
[16] The State believes that all the actions taken in response
to the final judgment in Kitchen can be considered a nullity
if the decision is ultimately overturned. However, there are
several instances in which courts recognize that actions taken
in reliance on an injunction cannot be reversed. See University
of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830,
68 L.Ed.2d 175 (1981) (injunctions have legal effects that
will be “irrevocably carried out” and cannot be unwound
if the injunction is subsequently overturned on appeal); see
also Prairie Band of Potawatomi Indians v. Pierce, 253
F.3d 1234, 1247 (10th Cir.2001) (recognizing certain types
of injunctions “once complied with, cannot be undone”).
Moreover, a person who disobeys a district court injunction
that has not been stayed may be punished with contempt even
if the underlying injunction is subsequently reversed. Walker
v. City of Birmingham, 388 U.S. 307, 314, 87 S.Ct. 1824, 18
L.Ed.2d 1210 (1967).
The State further fails to recognize that Plaintiffs are claiming
a violation of substantive due process rights, not merely
procedural due process rights. Plaintiffs allege that they have
substantive vested rights in their marriages-such as, the right
to family integrity, the right to the custody and care of
children of that marriage-that the State cannot take away
regardless of the procedures the State uses. Once Plaintiffs
solemnized a legally valid marriage between December
20, 2013, and January 6, 2014, Plaintiffs obtained all the
substantive due process and liberty protections of any other
marriage.
*15 As stated above, the Supreme Court recently held
that divesting “married same-sex couples of the duties and
responsibilities that are an essential part of married life”
violates due process. United States v. Windsor, ––– U.S. ––––,
133 S.Ct. 2675, 2695, 186 L.Ed.2d 808 (2013). The State's
decision to put same-sex marriages on hold, “deprive[s] some
couples married under the laws of their State, but not other
couples, of both rights and responsibilities.” Id. at 2694.
Prior Supreme Court cases also establish that there “is
a sphere of privacy or autonomy surrounding an existing
marital relationship into which the State may not lightly
intrude.” Zablocki v. Redhail, 434 U.S. 374, 397 n. 1, 98
S.Ct. 673, 54 L.Ed.2d 618 (1978) (Powell, J., concurring).
4
The State has not attempted to argue that they have
a constitutionally adequate justification for overcoming
Plaintiffs' due process and liberty interests. Lawrence v.
Texas, 539 U.S. 558, 593, 123 S.Ct. 2472, 156 L.Ed.2d
508 (2003) (Ordinarily, “the Due Process Clause prohibits
States from infringing fundamental liberty interests, unless
the infringement is narrowly tailored to serve a compelling
state interest.”) The State has not provided the court with
a compelling state interest for divesting Plaintiffs of the
substantive rights Plaintiffs obtained in their marriages. The
State asserts merely that Plaintiffs improperly relied on the
ruling of a United States District Court. The State's argument,
however, fails to acknowledge that the State also relied on the
Kitchen decision. The State notified its county clerks that they
were required to issue marriage licenses. The State now seems
to be claiming that while it reasonably required its county
clerks to act in response to the Kitchen decision, Plaintiffs
unreasonably acted on that same decision. However, the court
has already discussed the operative effect of a district court
injunction. That operative effect applies to all parties equally.
Even though the Supreme Court's Stay Order put Utah's
marriage bans back in place, to retroactively apply the bans
to existing marriages, the State must demonstrate some state
interest in divesting Plaintiffs of their already vested marriage
rights. The State has failed to do so. Although the State has an
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Evans v. Utah, --- F.Supp.2d ---- (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 11
interest in applying state law, that interest is only in applying
the controlling law at the time. In Strauss, the court found that
a retroactive application of Proposition 8 was “not essential to
serve the state's current interest (as reflected in the adoption
of Proposition 8) in preserving the traditional definition of
marriage by restricting marriage to opposite-sex couples; that
interest is honored by applying the measure prospectively
and by having the traditional definition of marriage enshrined
in the state Constitution.” 93 Cal.Rptr.3d 591, 207 P.3d at
122. In comparison, “a retroactive application of the initiative
would disrupt thousands of actions taken in reliance on the
[In re ] Marriage Cases [43 Cal.4th 757, 76 Cal.Rptr.3d
683, 183 P.3d 384 (2008) ] by these same-sex couples,
their employers, their creditors, and many others, throwing
property rights into disarray, destroying the legal interests and
expectations of thousands of couples and their families, and
potentially undermining the ability of citizens to plan their
lives according to the law as it has been determined.” Id.
*16 As in Strauss, this court concludes that the State has not
demonstrated a state interest that would overcome Plaintiffs'
vested marriage rights. The State's decision to retroactively
apply its marriage bans and place Plaintiffs' marriages “on
hold” infringes upon fundamental constitutional protections
for the marriage relationship. Therefore, Plaintiffs have
demonstrated a clear and unequivocal likelihood of success
on the merits of their deprivation of federal due process claim
under 42 U.S.C. § 1983.
B. Irreparable Harm
[17] Under Tenth Circuit law, “[t]he party seeking
injunctive relief must show that the injury complained of is
of such imminence that there is a clear and present need for
equitable relief to prevent irreparable harm.” Heideman v. S.
Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.2003). The
State argues that the court should not find irreparable harm
because, even though Plaintiffs have the option of living in
a state that would recognize their marriage, Plaintiffs have
chosen to live in Utah for years without enjoying the rights of
marriage. This argument ignores the changes in the law that
occurred and the fact that Plaintiffs' situations were materially
altered when they became validly married in the State of Utah.
[18] [19] The Tenth Circuit recognizes that “ ‘[w]hen an
alleged constitutional right is involved, most courts hold that
no further showing of irreparable injury is necessary.’ ” Awad
v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.2012). As stated
above, Plaintiffs have demonstrated a likelihood of success
on the merits that the State is violating their due process and
liberty interests by refusing to recognize their validly-entered
marriages. The State has placed Plaintiffs and their families
in a state of legal limbo with respect to adoptions, child
care and custody, medical decisions, employment and health
benefits, future tax implications, inheritance, and many other
property and fundamental rights associated with marriage.
These legal uncertainties and lost rights cause harm each day
that the marriage is not recognized. The court concludes that
these circumstances meet the irreparable harm standard under
Tenth Circuit precedents.
C. Balance of Harms
[20] “[I]f the moving party establishes a likelihood of
success on the merits, the balance of harms normally
favors granting preliminary injunctive relief because the
public interest is not harmed by preliminarily enjoining the
enforcement of a statute that is probably unconstitutional.”
ACLU of Ill. v. Alvarez, 679 F.3d 583, 589–90 (7th Cir.2012);
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145
(10th Cir.2013). In this case, the laws themselves may not be
unconstitutional, but the State's retroactive application of the
marriage bans likely violates Plaintiffs' constitutional rights.
The State has no legitimate interest in depriving Plaintiffs of
their constitutional rights.
Although the State has a general interest in representing the
wishes of its voters, that interest does not outweigh the harms
Plaintiffs face by having their constitutional rights violated.
Plaintiffs face significant irreparable harms to themselves and
their families-inability to inherit, inability to adopt, loss of
custody, lost benefits. The State, however, has demonstrated
no real harm in continuing to recognize Plaintiffs' legally-
entered marriages. The State's harm in the Kitchen litigation
with respect to continuing to issue same-sex marriage licenses
is not the same as the harm associated with recognizing
previously-entered same-sex marriages that were valid at the
time they were solemnized. The only relevant harm in this
case is the harm that results from requiring the State to
recognize Plaintiffs' marriages.
*17 The State asserts that it is harmed by not being able
to enforce the marriage bans retroactively. But the court
has already discussed the constitutional concerns associated
with a retroactive application of the marriage bans and finds
no harm to the State based on an inability to apply the
marriage bans retroactively. The State's marriage bans are
currently in place and can stop any additional marriages from
occurring. The State's interest is in applying the current law.
The court, therefore, concludes that the balance of harms
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Evans v. Utah, --- F.Supp.2d ---- (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 12
weighs decidedly in Plaintiffs' favor and supports the court's
issuance of a preliminary injunction.
D. Public Interest
[21] “[I]t is always in the public interest to prevent the
violation of a party's constitutional rights.” Awad, 670 F.3d
at 1132. In this case, the court agrees with Plaintiffs that
the public is well served by having certainty about the
status of Plaintiffs' marriages. That certainty not only benefits
Plaintiffs and there families but State agencies, employers,
and other third parties who may be involved in situations
involving issues such as benefits, employment, inheritance,
child custody, and child care.
For the foregoing reasons, the court concludes that Plaintiffs
have met the clear and unequivocal standard for obtaining a
preliminary injunction during the pendency of this litigation.
Plaintiffs have demonstrated that they are likely to succeed
on the merits of their federal due process claims, that they
will be irreparably harmed if a preliminary injunction does
not issue, that the balance of harms weighs in their favor,
and that the injunction is in the public interest. Accordingly,
Plaintiffs' motion for a preliminary injunction is granted and
the court will enter a preliminary injunction preventing the
State from enforcing its marriage bans with respect to the
same-sex marriages that occurred in Utah between December
20, 2013, and January 6, 2014.
The State's Request for Stay Pending Appeal
In the event that the court decided to grant Plaintiffs' motion
for a preliminary injunction, the State requested that the court
stay the injunction pending appeal. Rule 62(c) provides that
“[w]hile an appeal is pending from an interlocutory order ...
that grants ... an injunction, the court may suspend, modify,
restore, or grant an injunction on terms for bond or other terms
that secure the opposing party's rights.” Rule 8(a)(1) of the
Federal Rules of Appellate Procedure provides that a party
must ordinarily first move in the district court to obtain a stay
of the judgment or order of a district court pending appeal.
Fed. R.App. P. 8(a)(1).
[22] The purpose of a stay is to preserve the status quo
pending appeal. McClendon v. City of Albuquerque, 79 F.3d
1014, 1020 (10th Cir.1996). The court has already determined
that the status quo in this case is the State recognizing
Plaintiffs' marriages. Therefore, the State's request would
alter the status quo.
*18 [23] [24] [25] The court considers the following
four factors when considering a motion to stay pending
appeal:
(1) whether the stay applicant has
made a strong showing that he is
likely to succeed on the merits;
(2) whether the applicant will be
irreparably injured absent a stay; (3)
whether issuance of the stay will
substantially injure the other parties
interested in the proceeding; and (4)
where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113,
95 L.Ed.2d 724 (1987). “With respect to the four stay
factors, where the moving party has established that the three
‘harm’ factors tip decidedly in its favor, the ‘probability
of success' requirement is somewhat relaxed.” F.T.C. v.
Mainstream Marketing Services, Inc., 345 F.3d 850, 852
(10th Cir.2003) (citations omitted). If the State “can meet the
other requirements for a stay pending appeal, they will be
deemed to have satisfied the likelihood of success on appeal
element if they show ‘questions going to the merits so serious,
substantial, difficult and doubtful, as to make the issues ripe
for litigation and deserving of more deliberate investigation.’
” McClendon, 79 F.3d at 1020 (quoting Walmer v. United
States Dep't of Defense, 52 F.3d 851, 854 (10th Cir.), cert.
denied, 516 U.S. 974, 116 S.Ct. 474, 133 L.Ed.2d 403
(1995)).
[26] Based on the court's analysis above, this court believes
that its decision is correct and that Plaintiffs, not the State,
have demonstrated a clear likelihood of success on the
merits. Also, the court has already weighed and balanced
the harms involved in issuing its preliminary injunction.
Plaintiffs have demonstrated existing clear and irreparable
harms if an injunction is not in place. As discussed above,
the balance of harms is necessarily tied to the merits of the
decision because harm to Plaintiffs' constitutional rights are
given significantly more weight than the State's harm in not
being able to apply its marriage bans retroactively to legally-
entered marriages. The irreparable nature of Plaintiffs harms
involve fundamental rights such as the ability to adopt, the
ability to inherit, child care and custody issues, and other
basic rights that would otherwise remain in legal limbo. For
these reasons, the court cannot conclude that the harm to
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Evans v. Utah, --- F.Supp.2d ---- (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 13
the State outweighs the harm to Plaintiffs during pendency
of the appeal. The need for certainty also weighs heavily
in determining the public interest. Recognition of Plaintiffs'
marriages impacts extended families, employers, hospitals,
schools, and many other third parties. The court, therefore,
concludes that the State has not met its burden of establishing
the factors required for a stay pending appeal.
In its discretion, however, the court grants the State a limited
21–day stay during which it may pursue an emergency motion
to stay with the Tenth Circuit. The court recognizes the
irreparable harms facing Plaintiffs every day. However, the
court finds some benefit in allowing the Tenth Circuit's to
review whether to stay the injunction prior to implementation
of the injunction. Therefore, notwithstanding the many
factors weighing against a stay, the court, in its discretion,
grants the State a temporary 21–day stay.
Motion to Certify Questions of State Law
*19 In addition to their Motion for a Preliminary Injunction,
Plaintiffs also ask the court to certify questions of law to the
Utah Supreme Court. Specifically, Plaintiffs ask the court to
certify two specific questions: (1) Under Utah law, do same-
sex couples who were legally married between December
20, 2013, and January 6, 2014, have vested rights in their
marriages which are protected under Article I, Section 7
of the Utah Constitution?; and (2) Once the State of Utah
recognized the marriages of same-sex couples entered into
between December 20, 2013, and January 6, 2014, could it
apply Utah's marriage bans to withdraw that recognition?
The State opposed Plaintiffs' motion to certify but has now
brought its own Motion to Certify, asking the court to certify
the following question: Do same-sex couples who received
marriage licenses, and whose marriages were solemnized,
between December 20, 2013 and January 6, 2014, have
vested property rights in their marriages which now require
recognition under present Utah law?
The State opposed Plaintiffs' motion to certify on the grounds
that the answers to Plaintiffs' proposed questions were clear
and the questions were vague and unhelpful to the court.
However, after briefing and argument on Plaintiffs' motion
to certify, the State alleges that circumstances changed when
some district court judges in Utah's state courts began ruling
that Plaintiffs had vested rights in their marriages.
Rule 41(a) of the Utah Rules of Appellate Procedure provides
that “the Utah Supreme Court may answer a question of
Utah law certified to it by a court of the United States when
requested to do so by such certifying court ... if the state of the
law of Utah applicable to a proceeding before the certifying
court is uncertain.” Utah R.App. P. 41(a). The certification
order must state (1) the “question of law to be answered,” (2)
“that the question certified is a controlling issue of law in a
proceeding pending before the certifying court,” and (3) “that
there appears to be no controlling Utah law.” Id. 41(c).
The parties' requests to certify come to this court in a
fairly unusual procedural posture. Claiming that the heart of
Plaintiffs' claims is whether the State's failure to recognize
their marriages violates the Due Process Clause of the
Fourteenth Amendment, the State removed Plaintiffs' case
from state court to federal court. The State then opposed
Plaintiffs' motion to certify question to the state court. Now,
based on rulings favorable to Plaintiffs in state district courts,
the State argues that this court should certify the vested right
question to the Utah Supreme Court “to ensure consistency
and fairness.”
As demonstrated by the parties' competing motions, both
parties in this case seek a determination from the Utah
Supreme Court as to whether Plaintiffs have vested rights
in their marriages under Utah law. In determining Plaintiffs'
federal due process claim, this court concluded that Plaintiffs
have liberty interests inherent in the Due Process Clause and
created by state law. Therefore, the vested rights issue is an
important issue of law in this case, but it does not appear to
be essential to Plaintiffs' federal due process claim. However,
with respect to the final requirement for certification—that
there is no controlling Utah law—this court concluded that,
under Utah state law, Plaintiffs clearly and unequivocally
demonstrated that they have vested rights in their legally-
entered marriages and their vested marriage rights are
protected by the federal due process clause regardless of the
ultimate outcome of the Kitchen case.
*20 The State asserts that this court should certify the vested
rights question to the Utah Supreme Court because state
district court judges in several adoption cases have ruled that
Plaintiffs' have vested marriage rights and the State has sought
review of those decisions through a writ to the Utah Supreme
Court. Although the Utah Supreme Court has granted a stay
of the adoption decrees while it considers the issue, the court's
decision to have the issue briefed makes no comment on the
merits of the writs. As Plaintiffs' asserted in their oppositions,
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (234 of 518)
Evans v. Utah, --- F.Supp.2d ---- (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 14
there may be procedural grounds for dismissal or denial of
the writs that would preclude the Utah Supreme Court from
reaching the merits of the issue.
The State asserts that this court could have determined the
state law enmeshed with the federal due process challenge
but for the state adoption rulings. This court, however, is
not aware of any case in the Utah state courts that have
been favorable to the State's position. At most, some district
courts have chosen to stay the adoption cases pending a
decision on the validity of the marriages. Several state rulings
consistent with this court's determination that Plaintiffs have
vested rights in their marriages does not provide a basis for
concluding that the issue of state law is uncertain.
Finally, if the court is to consider fairness as the State
requests, the court notes that the State chose this forum by
removing the action from state court. Unlike Plaintiffs who
seek certification in order to obtain favorable rulings from
both courts, the State seeks to begin the process anew in a
different forum from the one it chose. The court agrees with
Plaintiffs that the State's late-filed motion to certify, asserting
a nearly identical question to those posed by Plaintiffs,
appears to be a delay tactic.
5
[27] Utah law clearly provides that rights in a valid marriage
vest immediately upon solemnization. There is no further
action required to be taken or that could be taken by either
party to create the vested right. There is no basis under Utah
law for finding that Plaintiffs in this case were required to take
steps beyond solemnization in order to obtain vested rights
when such steps are not required for other marriages. Because
Utah law is clear and not ultimately controlling of the case
before this court, the court concludes that there is no basis
for certifying the state law questions to the Utah Supreme
Court. Accordingly, the parties' motions to certify state law
questions are denied.
CONCLUSION
Based on the above reasoning, Plaintiffs Motion for
Preliminary Injunction [Docket No. 8] is GRANTED;
Plaintiffs' Motion to Certify Questions of Utah State Law to
the Utah Supreme Court [Docket No. 10] is DENIED; and
Defendants' Motion to Certify Questions of Utah State Law
to the Utah Supreme Court [Docket No. 34] is DENIED.
The following Preliminary Injunction Order is temporarily
stayed for twenty-one (21) days to allow the State to seek an
emergency stay pending appeal from the Tenth Circuit.
PRELIMINARY INJUNCTION ORDER
*21 The court issues the following Preliminary Injunction
against Defendants:
Defendants State of Utah, Governor Gary Herbert and
Attorney General Sean Reyes are prohibited from applying
Utah's marriage bans retroactively to the same-sex marriages
that were entered pursuant to Utah marriage licenses issued
and solemnized between December 20, 2013, and January
6, 2014. Accordingly, Defendants State of Utah, Governor
Gary Herbert and Attorney General Sean Reyes shall
immediately recognize the marriages by same-sex couples
entered pursuant to Utah marriage licenses issued and
solemnized between December 20, 2013, and January 6,
2014, and afford these same-sex marriages all the protections,
benefits, and responsibilities given to all marriages under
Utah law.
Footnotes
1
The State's Motion to Certify Questions of Utah State Law was not filed until after the hearing was held. The motion is fully briefed,
and the court concludes that a separate hearing on the motion is unnecessary.
2
In 1977, the Utah Legislature amended Utah Code Section 30–1–2 to state “[t]he following marriages are prohibited and declared
void”: [marriages] “between persons of the same sex.” Utah Code Ann. § 30–1–2(5). In 2004, the Utah Legislature added Utah Code
Section 30–1–4.1, which provides: “It is the policy of this state to recognize as marriage only the legal union of a man and a woman;”
and “this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties [to same-
sex couples] that are substantially equivalent to those provided under Utah law to a man and woman because they are married.” Id. §
30–1–4.1(1)(a), (b). In the November 2004 general election, Utah voters passed Amendment 3, which added Article I, Section 29 to
the Utah Constitution, effective January 1, 2005, which provides: “(1) Marriage consists of only the legal union between a man and
a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially
equivalent legal effect.”
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (235 of 518)
Evans v. Utah, --- F.Supp.2d ---- (2014)
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 15
3
Plaintiffs allege financial damages due to a deprivation of rights, such as Johnson and Shultz's $8,000.00 yearly loss for insurance
premiums. Plaintiffs, however, do not specifically request monetary damages in their Prayer for Relief. Rather, Plaintiffs state only
“any other relief the court deems just and proper.”
4
Utah courts have also recognized “[t]he rights inherent in family relationships—husband-wife, parent-child, and sibling—are the
most obvious examples of rights” protected by the Constitution. In re J.P., 648 P.2d 1364, 1373 (Utah 1982).
5
The State includes a footnote in its motion to certify stating that the factors warranting the application of the Colorado River abstention
doctrine apply in this case. See Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
However, this case and the current state proceedings are not parallel actions. See Fox v. Maulding, 16 F.3d 1079, 1081 (10th Cir.1994)
(“[A] federal court must first determine whether the state and federal proceedings are parallel.”). The state actions were instituted
as adoption proceedings and are before the Utah Supreme Court on emergency writs. The case before this court is a deprivation of
due process and liberty interest under state and federal due process. Only one couple in the adoption proceedings overlap with the
Plaintiffs in this case. Also, significantly, the rights and remedies at issue in this case are far broader than those at issue in the state
court proceedings. Moreover, the only reason both cases are not in State court is because the State removed this case from State court.
It strikes the court as procedural gamesmanship for the State to remove a case to federal court and then ask the court in the forum
the State chose to abstain from acting. “The decision whether to defer to the state courts is necessarily left to the discretion of the
district court in the first instance.” Id. at 1081. Such discretion must be exercised “in light of ‘the virtually unflagging obligation of
the federal courts to exercise the jurisdiction given them.’ ” Id. (citations omitted). Because these cases are not parallel actions, the
court has no discretion to abstain and must exercise its obligation to hear and decide the case presented to it.
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (236 of 518)
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 Gov-
ernor of Oregon; Ellen Rosenblum, in her official
capacity as Attorney General of Oregon; Jennifer
Woodward, in her official capacity as State Regis-
trar, Center for Health Statistics, Oregon Health
Authority, and Randy Walruff, in his official capa-
city as Multnomah County Assessor, Defendants.
Paul Rummell and Benjamin West; Lisa Chick-
adonz and Christine Tanner; Basic Rights Educa-
tion Fund, Plaintiffs,
John Kitzhaber, in his official capacity as Governor
of Oregon; Ellen Rosenblum, in her official capa-
city as Attorney General of Oregon; Jennifer
Woodward, in her official capacity as State Regis-
trar, Center for Health Statistics, Oregon Health
Authority, and Randy Walruff, in his official capa-
city as Multnomah County Assessor, Defendants.
Case Nos. 6:13–cv–01834–MC,
6:13–cv–02256–MC.
Signed May 19, 2014.
Background: In consolidated suits, four homo-
sexual couples challenged Oregon's ban on same-
sex marriage as violative of the Equal Protection
Clause of the Fourteenth Amendment. Couples
moved for summary judgment.
Holdings: The District Court, McShane, J., held
that:
(1) Oregon's prohibition of same-sex marriage dis-
criminated on basis of sexual orientation, not
gender;
(2) tradition, alone, did not provide legitimate state
interest to support prohibition; and
(3) while goals of protecting children and encour-
aging stable families were legitimate state interests,
they were not burdened by overturning prohibition.
Motions granted.
West Headnotes
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Page 1
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Page 2
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On an equal protection challenge, classifica-
tions such as those based on gender or illegitimacy,
are subject to “heightened scrutiny,” also known as
“intermediate scrutiny,” under which the classifica-
tion must be substantially related to a sufficiently
important government interest. U.S.C.A.
Const.Amend. 14.
[10] Constitutional Law 92 1021
92 Constitutional Law
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Questions
92VI(C)3 Presumptions and Construction
as to Constitutionality
92k1006 Particular Issues and Applica-
tions
92k1021 k. Equal protection. Most
Cited Cases
Constitutional Law 92 3057
92 Constitutional Law
92XXVI Equal Protection
92XXVI(A) In General
92XXVI(A)6 Levels of Scrutiny
92k3052 Rational Basis Standard;
Reasonableness
92k3057 k. Statutes and other writ-
ten regulations and rules. Most Cited Cases
On an equal protection challenge, most classi-
fications are presumed to be valid and receive less-
exacting judicial scrutiny, known as “rational basis
review,” under which the Equal Protection Clause
is satisfied if: (1) there is a plausible policy reason
for the classification, (2) the legislative facts on
which the classification is apparently based ration-
ally may have been considered to be true by the
governmental decisionmaker, and (3) the relation-
ship of the classification to its goal is not so attenu-
ated as to render the distinction arbitrary or irra-
tional. U.S.C.A. Const.Amend. 14.
[11] Constitutional Law 92 3409
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)11 Sex or Gender
92k3408 Families and Children
92k3409 k. In general. Most Cited
Cases
Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
Page 3
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253k17.5(1) k. In general. Most Cited Cases
Oregon's prohibition of same-sex marriage dis-
criminated on basis of sexual orientation, not
gender, for purposes of equal protection challenge,
since both men and women were prohibited from
doing exact same thing, marrying someone of same
gender, and state's marriage laws instead classified
same-gender couples differently than opposite-
gender couples. U.S.C.A. Const.Amend. 14; West's
Or.Const. Art. 15, § 5A; West's Or.Rev. Stat. Ann.
§§ 106.010, 106.041(1), 106.150(1).
[12] Federal Courts 170B 3796
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(L) Determination and Disposition
of Cause
170Bk3793 Effect of Decision in Lower
Court
170Bk3796 k. Mandate. Most Cited
Cases
Federal Courts 170B 3805
170B Federal Courts
170BXVII Courts of Appeals
170BXVII(L) Determination and Disposition
of Cause
170Bk3804 Jurisdiction and Proceedings
of Court of Appeals After Remand
170Bk3805 k. In general. Most Cited
Cases
Appellate court's decision is not final until its
mandate issues, and, absent a mandate's issuance,
the circuit retains jurisdiction of the case and may
modify or rescind its opinion.
[13] Constitutional Law 92 3040
92 Constitutional Law
92XXVI Equal Protection
92XXVI(A) In General
92XXVI(A)5 Scope of Doctrine in Gener-
al
92k3038 Discrimination and Classific-
ation
92k3040 k. Intentional or purpose-
ful action requirement. Most Cited Cases
Equal Protection Clause does not allow classi-
fications drawn solely for the purpose of disad-
vantaging a particular group intentionally singled
out for unequal treatment. U.S.C.A. Const.Amend.
14.
[14] Constitutional Law 92 3057
92 Constitutional Law
92XXVI Equal Protection
92XXVI(A) In General
92XXVI(A)6 Levels of Scrutiny
92k3052 Rational Basis Standard;
Reasonableness
92k3057 k. Statutes and other writ-
ten regulations and rules. Most Cited Cases
Under rational basis review on an equal protec-
tion challenge, 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 the court can only con-
clude that the legislature's actions were irrational.
U.S.C.A. Const.Amend. 14.
[15] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(1) k. In general. Most Cited Cases
That majority of Oregon voters enacted ballot
measure in order to constitutionally embed classi-
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fications underlying state's same-sex marriage pro-
hibition made no difference to court's rational basis
review on equal protection challenge. U.S.C.A.
Const.Amend. 14; West's Or.Const. Art. 15, § 5A;
West's Or.Rev. Stat. Ann. §§ 106.010, 106.041(1),
106.150(1).
[16] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
That the traditional definition of marriage ex-
cludes same-gender couples does not end the in-
quiry, under rational basis review, on an equal pro-
tection challenge. U.S.C.A. Const.Amend. 14.
[17] Constitutional Law 92 3053
92 Constitutional Law
92XXVI Equal Protection
92XXVI(A) In General
92XXVI(A)6 Levels of Scrutiny
92k3052 Rational Basis Standard;
Reasonableness
92k3053 k. In general. Most Cited
Cases
If tradition alone was sufficient to withstand ra-
tional basis review, the right to equal protection
would be quite hollow, as tradition would thus turn
rational basis review into a rubber stamp condoning
discriminationagainst longstanding, traditionally-op-
pressed minority classes. U.S.C.A. Const.Amend.
14.
[18] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Limiting civil marriage to opposite-gender
couples based only on a traditional definition of
marriage is simply not a legitimate purpose under
rational basis review on an equal protection chal-
lenge. U.S.C.A. Const.Amend. 14.
[19] Constitutional Law 92 3039
92 Constitutional Law
92XXVI Equal Protection
92XXVI(A) In General
92XXVI(A)5 Scope of Doctrine in Gener-
al
92k3038 Discrimination and Classific-
ation
92k3039 k. In general. Most Cited
Cases
Moral disapproval of a group cannot be a legit-
imate governmental interest under the Equal Pro-
tection Clause because legal classifications must
not be drawn for the purpose of disadvantaging the
group burdened by the law. U.S.C.A. Const.Amend.
14.
[20] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(1) k. In general. Most Cited Cases
Tradition, alone, did not provide legitimate
state interest supporting classifications underlying
Oregon's same-sex marriage prohibition, and thus
prohibition could not survive rational basis review
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on this ground on four homosexual couples' equal
protection challenge; regardless of religious and so-
cial traditions, once Oregon defined marriage and
attached benefits to that definition, it had to do so
constitutionally, without imposing traditional or
faith-based limitation upon such public right
without sufficient justification, and overturning
prohibition would not upset Oregonians' religious
beliefs and freedoms. U.S.C.A. Const.Amend. 14;
West's Or.Const. Art. 15, § 5A; West's Or.Rev.
Stat. Ann. §§ 106.010, 106.041(1), 106.150(1).
[21] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(1) k. In general. Most Cited Cases
Goal of promoting stable families constituted
legitimate state interest, but this goal would not be
burdened by overturning Oregon's same-sex mar-
riage prohibition, and thus prohibition could not
survive rational basis review on this ground on four
homosexual couples' equal protection challenge;
state's interest in promoting stable families did not
stop with families of opposite-gender couples,
which state acknowledged by enabling homosexual
couples to enter domestic partnerships, even though
state further acknowledged that such partnerships
were not equal to civil marriage. U.S.C.A.
Const.Amend. 14; West's Or.Const. Art. 15, § 5A;
West's Or.Rev. Stat. Ann. §§ 106.010, 106.041(1),
106.150(1), 106.305(3, 4, 6, 7).
[22] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(1) k. In general. Most Cited Cases
Goal of protecting children constituted legitim-
ate state interest, but this goal would not be
burdened by overturning Oregon's same-sex mar-
riage prohibition, and thus prohibition could not
survive rational basis review on this ground on four
homosexual couples' equal protection challenge;
Oregon had clear policy of supporting all children
and of recognizing that same-sex couples were just
as good as opposite-sex couples in parenting their
children. U.S.C.A. Const.Amend. 14; West's
Or.Const. Art. 15, § 5A; West's Or.Rev. Stat. Ann.
§§ 106.010, 106.041(1), 106.150(1), 109.050,
109.060, 109.243.
[23] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(1) k. In general. Most Cited Cases
Procreation was not vital to Oregon's legitimate
interest in marriage, and thus Oregon's same-sex
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marriage prohibition could not survive rational
basis review on this ground on four homosexual
couples' equal protection challenge. U.S.C.A.
Const.Amend. 14; West's Or.Const. Art. 15, § 5A;
West's Or.Rev. Stat. Ann. §§ 106.010, 106.041(1),
106.150(1).
[24] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(1) k. In general. Most Cited Cases
Any governmental interest in responsible pro-
creation was not advanced by Oregon's ban of
same-sex marriage, and thus prohibition could not
survive rational basis review on this ground on four
homosexual couples' equal protection challenge;
opposite-gender couples would continue to choose
to have children responsibly or not, and those con-
siderations were not impacted in any way by wheth-
er same-gender couples were allowed to marry.
U.S.C.A. Const.Amend. 14; West's Or.Const. Art.
15, § 5A; West's Or.Rev. Stat. Ann. §§ 106.010,
106.041(1), 106.150(1).
[25] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(1) k. In general. Most Cited Cases
Any governmental interest in “natural” procre-
ation was not advanced by Oregon's ban of same-
sex marriage, and thus prohibition could not sur-
vive rational basis review on this ground on four
homosexual couples' equal protection challenge;
Oregon law played no favorites between naturally
and legitimately conceived children and those con-
ceived via artificial insemination, and its interest
was instead in child's well-being regardless of con-
ception means. U.S.C.A. Const.Amend. 14; West's
Or.Const. Art. 15, § 5A; West's Or.Rev. Stat. Ann.
§§ 106.010, 106.041(1), 106.150(1), 109.243.
[26] Constitutional Law 92 3039
92 Constitutional Law
92XXVI Equal Protection
92XXVI(A) In General
92XXVI(A)5 Scope of Doctrine in Gener-
al
92k3038 Discrimination and Classific-
ation
92k3039 k. In general. Most Cited
Cases
On an equal protection challenge, to justify
classifications singling out a particular class of per-
sons, the law must, at a minimum, contain some
factual context tying the classification to the pur-
pose sought to be achieved. U.S.C.A.
Const.Amend. 14.
[27] Constitutional Law 92 3438
92 Constitutional Law
92XXVI Equal Protection
92XXVI(B) Particular Classes
92XXVI(B)12 Sexual Orientation
92k3436 Families and Children
92k3438 k. Marriage and civil uni-
ons. Most Cited Cases
Marriage 253 17.5(1)
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253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
Unions
253k17.5(1) k. In general. Most Cited Cases
Well-being of Oregon's children was not en-
hanced by state's same-sex marriage prohibition,
and thus prohibition could not survive rational basis
review on this ground on four homosexual couples'
equal protection challenge, since prohibition
destabilized and limited rights and resources avail-
able to families of same-sex couples. U.S.C.A.
Const.Amend. 14; West's Or.Const. Art. 15, § 5A;
West's Or.Rev. Stat. Ann. §§ 106.010, 106.041(1),
106.150(1).
West Codenotes
Held UnconstitutionalWest's Or.Const. Art. 15, §
5A; West's Or.Rev. Stat. Ann. §§ 106.010,
106.041(1), 106.150(1). Lake James H. Perriguey,
Law Works, LLC, Lea Ann Easton, Dorsay & East-
on LLP, Misha A.D. Isaak, Thomas R. Johnson,
Perkins Coie, LLP, Kevin Diaz, American Civil
Liberties Union, Portland, OR, Jennifer J.
Middleton, Johnson, Johnson & Schaller, Eugene,
OR, Amanda C. Goad, Rose Saxe, American Civil
Liberties Union Foundation, Los Angeles, CA, for
Plaintiffs.
Anna M. Joyce, Oregon Department of Justice,
Salem, OR, Mary Williams, Sheila H. Potter, Ore-
gon Department of Justice, Katharine Von Ter
Stegge, Jenny M. Madkour, Portland, OR, for De-
fendants.
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 li-
censes have been or would be denied because each
couple is of the same gender. I am asked to con-
sider whether the state's constitutional and statutory
provisions (“marriage laws”) that limit civil mar-
riage to “one man and one woman” violate the
United States Constitution.
FN1
Because Oregon's
marriage laws discriminate on the basis of sexual
orientation without a rational relationship to any le-
gitimate government interest, the laws violate the
Equal Protection Clause of the Fourteenth Amend-
ment to the United States Constitution.
THE PARTIES
All of the plaintiffs
FN2
share in the character-
istics that we would normally look to when we de-
scribe the ideals of marriage and family. They
present in the record as loving and committed
couples who have established long-term relation-
ships. 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 emotion-
ally 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 individu-
als. 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 neg-
lected 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 support-
ive 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 mar-
riage of convenience. It affords the same set of
rights and privileges to Tristan and Isolde that it af-
fords 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
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gay and lesbian couples who wish to marry within
the confines of our geographic borders.
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 de-
clares the laws unconstitutional.
FN3
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 ad-
versaries.
BACKGROUND
I. Same–Gender Marriage in Oregon and Meas-
ure 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 avail-
able on the same terms to all citizens. In 1998, re-
cognizing that same-gender couples were not per-
mitted to marry, the Oregon Court of Appeals con-
cluded Article I, § 20 of the Oregon Constitution
prohibited the state from denying insurance benefits
to unmarried domestic partners of homosexual em-
ployees. Tanner v. Oregon Health Sci. Univ., 157
Or.App. 502, 525, 971 P.2d 435 (1998). The state
responded by providing benefits to same-gender
couples who are able to demonstrate they share a
committed relationship similar to a marital relation-
ship.
During this same period, challenges regarding
the, rights available to same-gender couples began
to appear in the national spotlight. In 2003, the Su-
preme Judicial Court of Massachusetts concluded
that Massachusetts's same-gender marriage ban vi-
olated their state constitution. Goodridge v. Dep't of
Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 969
(2003). With that ruling, Massachusetts became the
first state to legalize same-gender marriage.
On March 3, 2004, Multnomah County determ-
ined 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 Ore-
gon's marriage laws. Id.
Before the Supreme Court of Oregon weighed
in on the issue, Oregon voters provided their inde-
pendent 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 em-
bedded 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 mar-
riage is limited to opposite-sex couples, the context
... leaves no doubt that, as a statutory matter, mar-
riage 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 partner-
ships to receive certain state benefits. Oregon Fam-
ily Fairness Act, 2007 Or. Laws, ch. 99, § 2
(codified at Or.Rev.Stat. § 106.305). Domestic part-
nerships provided “more equal treatment of gays
and lesbians and their families,” § 106.305(6), by
granting domestic partners similar rights and priv-
ileges 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 dis-
tinctions will exist between these two legally recog-
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nized relationships”). In the declarations submitted
to this court, the plaintiffs maintain domestic part-
nerships have contributed greater confusion and ex-
pense 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 mat-
ter 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 spe-
cifically sought to protect. Windsor, 133 S.Ct. at
2693. The Court concluded “[t]he Act's demon-
strated purpose is to ensure that if any State decides
to recognize same-sex marriages, those unions will
be treated as second-class marriages for 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 oth-
er jurisdictions. State Defs.' Answer & Affirmative
Defenses to Pls.' Am. Compl. Ex. A, ECF No.
58–1.
FN4
The state also joined an amicus curiae
brief to the Ninth Circuit Court of Appeals, which
has been asked to invalidate a same-gender mar-
riage 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 obliga-
tions of marriage in the same manner as different-
sex couples.” Id. In so doing, the state effectively
acknowledged that its legitimate interest in sustain-
ing 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 to-
gether with Mr. West's income. Ms. Geiger had to
ask her employer to extend spousal relocation bene-
fits 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 les-
bian couples rights and responsibilities approximat-
ing 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 per-
sists regarding domestic partnerships. They en-
counter institutional obstacles when lawyers,
courts, and health care and funerary service pro-
viders 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 neces-
sity arise. See § 127.635(2). Such rights and protec-
tions 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 re-
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cognition and benefits. They cannot file joint feder-
al 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 in-
surance benefits covering unwed partners is feder-
ally 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 part-
nership dissolution is taxable, unlike in marriage,
see § 1041, as are the spousal-support payments
arising from such dissolutions, see § 71. As com-
pared 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 So-
cial Security benefits. See Soc. Sec. Admin., SSA
Pub. No. 05–10084, Social Security: Survivors Be-
nefits 5 (2013). Financial aid packages for the chil-
dren 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 de-
graded, humiliated, and stigmatized. Plaintiffs con-
sider 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, dead-
beat parents, and mail-order brides. They see no ra-
tionale 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 fact and the movant is entitled to judg-
ment as a matter of law.” Fed.R.Civ.P. 56(a).
DISCUSSION
I. A State's Right to Define Marriage within
Constitutional Bounds
[1] [M]arriage is often termed ... a civil contract
... [but] it is something more than a mere con-
tract.... 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 soci-
ety, without which there would be neither civiliz-
ation nor progress.
*5 Maynard v. Hill, 125 U.S. 190, 210–11, 8
S.Ct. 723, 31 L.Ed. 654 (1888).
FN5
Society's sig-
nificant interest in marriage is manifest by a
state's “rightful and legitimate concern” for its
citizens' marital statuses. Williams v. North Car-
olina, 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 be-
come healthy and productive citizens, in which
family members care for those who are sick or in
need and would otherwise have to rely on gov-
ernment assistance, and through which com-
munity is built and strengthened.
State Defs.' Resp. Mot. Summ. J. 1, ECF No. 64.
A state's concern in regulating marriage in-
cludes the power to decide what marriage is and
who may enter into it. Windsor, 133 S.Ct. at 2691.
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This principal role reflects the state governments'
longstanding monopoly over marital relations, an
arrangement prevailing even at the time of the Fed-
eral Constitution's adoption. Id.
[2][3] 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 latit-
ude 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).
[4][5] 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 pre-
sumes 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 oth-
ers. 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 legitim-
ate state purpose. Id.
[6] States can and do rationally regulate mar-
riage. 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, 87 S.Ct. 1817 (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 Wiscon-
sin law conditioning marriage on a non-custodial
parent's ability to satisfy existing child-support ob-
ligations), 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 in-
mates receive a warden's permission to wed), su-
perseded by statute, Religious Land Use and Insti-
tutionalized 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 regu-
lating marriage must advance legitimate state in-
terests, and not a mere desire to harm a particular
class of its citizens.
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 de-
priving the former of numerous federal marital be-
nefits. Windsor, 133 S.Ct. at 2694. That result frus-
trated New York's rightful decision to confer the
dignity and privilege of marriage upon gay and les-
bian couples. Id. at 2695–96. In striking down the
federal definition, the Supreme Court explained that
the law's “principal purpose and ... necessary ef-
fect” was “to demean” legally married gay and les-
bian 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 af-
ford gay and lesbian couples the full entitlements of
marriage. Id. at 2693 (“[DOMA] ... impose[s] a dis-
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advantage, a separate status ... upon all who enter
into same-sex marriages made lawful by the un-
questioned authority of the States.”). Here, the
plaintiffs challenge not federal but state law, one
which reserves civil marriage to the exclusive en-
joyment of opposite-gender couples. This and sim-
ilar state marriage laws elsewhere are simply bey-
ond the ambit of the Windsor ruling. See Bishop v.
United States ex rel. Holder, 962 F.Supp.2d 1252,
1278 (N.D.Okla.2014) (“ 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 dif-
ferences will not detract from the underlying prin-
ciple 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 mar-
riage 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 regu-
late marriage, such laws must pass constitutional
muster. Plaintiffs argue the state's marriage laws vi-
olate their rights to equal protection. When analyz-
ing a law under the Equal Protection Clause of the
Fourteenth Amendment, the court first determines
the appropriate level of scrutiny to apply.
[7][8] Strict scrutiny, the most exacting level of
scrutiny, is reserved for “suspect” classifications
such as race or national origin. Johnson v. Califor-
nia, 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 in-
vidious purpose,” courts must engage in a
“searching judicial inquiry” to ferret out any illegit-
imate 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 in-
terest. Id. at 505, 125 S.Ct. 1141.
*7 [9] 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 in-
terest.” Id. at 441, 105 S.Ct. 3249.
[10] 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 ar-
bitrary 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.
[11] 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 women, the classifica-
tion is necessarily one based on gender. Stated an-
other way, if either person in a specific couple
happened to be of the other gender, the couple
could in fact marry. Because the classification im-
pacts 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:
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marrying an individual of the same gender. The ban
does not impact males and females differently. In-
stead, 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 applica-
tion” of laws that discriminate based on suspect
classes. See Loving, 388 U.S. at 8–9, 87 S.Ct. 1817.
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 applic-
ation” 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, 87
S.Ct. 1817 (quoting Naim v. Naim, 197 Va. 80, 87
S.E.2d 749, 756 (1955)).
There is no such invidious gender-based dis-
crimination 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 fe-
males, but homosexual males and homosexual fe-
males. 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 con-
cluded 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 fun-
damental right.
Id. at 573. The court concluded that although
homosexuals suffered a history of discrimination,
they did not meet the other criteria required of sus-
pect 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 thor-
ough 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, Wind-
sor requires that heightened scrutiny be applied
to equal protection claims involving sexual ori-
entation.
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Id. at 481.
[12] 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 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 re-
quired 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 de-
cision. 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
[13][14][15] 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 implic-
ates 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 pur-
pose of disadvantaging a particular group intention-
ally singled out for unequal treatment. Id. For this
reason, courts inquire whether the classification is
rationally related to a legitimate government in-
terest. Id. at 632–33, 116 S.Ct. 1620. Courts pre-
sume the classification is valid, declaring it uncon-
stitutional only when “the varying treatment of dif-
ferent groups or persons is so unrelated to the
achievement of any combination of legitimate pur-
poses that we can only conclude that the legis-
lature'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, 116 S.Ct. 1620.
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 tradi-
tional definitions of marriage. Another is protecting
children and encouraging stable families. As dis-
cussed below, only the latter justification is a legit-
imate 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 mar-
riage laws place the plaintiffs and other gay and
lesbian couples seeking to marry in Oregon at a dis-
advantage, and the laws do so without any ration-
ally related government purpose.
i. Tradition
[16][17][18] Marriage has traditionally been
limited to opposite-gender couples. That the tradi-
tional 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 leg-
al 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.
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“Tradition” would simply turn rational basis review
into a rubber stamp condoning discrimination
against longstanding, traditionally oppressed minor-
ity 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 argu-
ment that the definition of marriage should remain
the same for the definition's sake is a circular argu-
ment, not a rational justification. Simply stating
what has always been does not address the reasons
for it. The mere fact that prior law, history, tradi-
tion, the dictionary and the Bible have defined a
term does not give that definition a rational basis, it
merely states what has been.”).
*10 [19] Certain traditions may reflect personal
religious and moral beliefs. Such beliefs likely in-
formed the votes of many who favored Measure 36.
However, as expressed merely a year before Meas-
ure 36's passage, “[m]oral disapproval of a group
cannot be a legitimate governmental interest under
the Equal Protection Clause because legal classific-
ations must not be ‘drawn for the purpose of disad-
vantaging 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., con-
curring in the judgment) (quoting Romer, 517 U.S.
at 633, 116 S.Ct. 1620). That year, the Supreme
Court concluded a Texas law criminalizing private,
consensual, sexual acts between two adults was un-
constitutional. The Court explicitly adopted Justice
Stevens' dissent in Bowers v. Hardwick, 478 U.S.
186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),
another case involving laws criminalizing homo-
sexual conduct. Lawrence, 539 U.S. at 577–78, 123
S.Ct. 2472. Over a vigorous dissent from Justice
Scalia, the Court adopted Justice Stevens' earlier
conclusion that “the fact that the governing major-
ity 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, 123 S.Ct. 2472. This remains the law of the
land, that mere moral disapproval of a particular
group of citizens is not a legitimate reason for in-
tentionally withholding rights and benefits from
that group.
[20] To be clear, this case deals with civil mar-
riage. 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 Ken-
tucky, one of an ever-increasing—and so far unan-
imous—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 them-
selves, 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. As-
signing 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 accom-
modates our individual faith's definition of mar-
riage while preventing the government from un-
lawfully 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, ––– F.Supp.2d ––––, ––––,
2014 WL 556729, at *10 (W.D.Ky.2014).
Overturning the discriminatory marriage laws
will not upset Oregonians' religious beliefs and
freedoms.
FN6
As tradition alone does not provide a
legitimate state interest supporting classifications
based on sexual orientation, I turn to other possible
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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, of-
ten turn to variations of the state's interest in pro-
tecting 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.
[21] 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 fam-
ilies, 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 econom-
ic discrimination. These couples live together, par-
ticipate in their communities together and often
raise children and care for family members togeth-
er, just as do couples who are married under Ore-
gon law.” § 106.305(3). With this finding, the legis-
lature 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 op-
posite-gender relationships the full rights, benefits,
and responsibilities of marriage, it is forced to bur-
den, demean, and harm gay and lesbian couples and
their families so long as its current marriage laws
stand. Although the state created domestic partner-
ships 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 do-
mestic 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 dif-
ficult for the children 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 [22] Nor does prohibiting same-gender
marriage further Oregon's interest in protecting all
children. For example, the state's interest in protect-
ing 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 adopt-
ive 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 legitim-
ately conceived” children any different than chil-
dren 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 demon-
strate its interest in supporting all children, includ-
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ing children raised by same-gender couples.
The above policies make perfect sense. Ore-
gon's policies accept that children fare the same
whether raised by opposite-gender or same-gender
couples. See DeBoer v. Snyder, 973 F.Supp.2d 757,
770 (E.D.Mich.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, 975 F.Supp.2d 632, 654
(W.D.Tex.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 par-
ents 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 com-
mon sense; it is also supported by “the vast major-
ity of scientific studies” examining the issue. See
Brief of the Am. Psychol. Ass'n, et al. as Amici
Curia, United States v. Windsor, 133 S.Ct. 2675,
2695–96 (2013) (12–307), 2013 WL 871958, at *19
(listing studies).
*13 [23] Some argue the state's interest in re-
sponsible procreation supports same-gender mar-
riage 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 mar-
riage 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 cous-
ins or those in which either party is already mar-
ried. § 106.020.
[24] Additionally, any governmental interest in
responsible procreation is not advanced by denying
marriage to gay a lesbian couples. There is no lo-
gical 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 re-
sponsibly 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.
[25] The logical nexus between the state's in-
terest in “natural” procreation and denying mar-
riage 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 con-
ceived via artificial insemination. § 109.243 (so
long as the husband consented to the artificial in-
semination, the child will have the same rights and
relationship as between naturally conceived chil-
dren). The state's interest is in a child's well-being
regardless of the means of conception. There is
simply no rational argument connecting this interest
to the prohibition of same-gender marriage.
[26] Although protecting children and promot-
ing stable families is a legitimate governmental
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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, 116 S.Ct. 1620. There is no such factual
context here. In fact, the relationship between pro-
hibiting 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 [27] Expanding the embrace of civil mar-
riage to gay and lesbian couples will not burden any
legitimate state interest. The attractiveness of mar-
riage 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 op-
posite-sex couples who marry, divorce, cohabit,
have children outside of marriage or otherwise af-
fect 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 Oberge-
fell 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 mar-
ried.”).
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 pre-
clusion of gay and lesbian couples from civil mar-
riage.
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 mar-
riage (and thereby expanding the benefits and rights
that accompany marriage) to gay and lesbian famil-
ies. It was these same objections that led to the pas-
sage of Measure 36 in 2004. Generations of Amer-
icans, 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 re-
member that one of the more popular, playground
games of my childhood was called “smear the
queer”
FN7
and it was played with great zeal and
without a moment's thought to today's political cor-
rectness. 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 con-
sensual sexual acts. Bowers, 478 U.S. at 197, 106
S.Ct. 2841 (Burger, C.J., concurring), overruled by
Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. Even
today I am reminded of the legacy that we have be-
queathed today's generation when my son looks dis-
missively 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 ex-
pression of these moral viewpoints, it equally pro-
tects 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
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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. Famil-
ies who we would expect our Constitution to pro-
tect, if not exalt, in equal measure. With discern-
ment 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 com-
munity.
Where will this all lead? I know that many sug-
gest we are going down a slippery slope that will
have no moral boundaries. To those who truly har-
bor such fears, I can only say this: Let us look less
to the sky to see what might fall; rather, let us look
to each other ... and rise. ORDER TO FOLLOW.
ORDER
*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 sum-
mary 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, protec-
tions, 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 Amend-
ment to the United States Constitution, and that as
such it is void and unenforceable. Defendants and
their officers, agents, and employees are PERMAN-
ENTLY 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, be-
nefits, privileges, obligations, responsibilities, and
immunities of marriage, where the couple would be
otherwise qualified to marry under Oregon law. De-
fendants 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 oth-
erwise qualified to marry in Oregon, or to deny
married same-gender couples any of the rights, be-
nefits, privileges, obligations, responsibilities, and
immunities that accompany marriage in Oregon.
The Court DECLARES that the Equal Protec-
tion Clause requires recognition of marriages of
same-gender couples legally performed in other jur-
isdictions, where those marriages are in all other re-
spects 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 val-
idly 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.
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FN1. 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 pro-
cess claims. Baker v. Nelson, 409 U.S.
810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972),
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 lesbi-
ans demonstrate that the Court's summary
dismissal in Baker has little if any preced-
ential effect today.”); accord DeBoer v.
Snyder, 973 F.Supp.2d 757, n. 6
(E.D.Mich.2014); Bishop v. United States
ex rel. Holder, 962 F.Supp.2d 1252, 1277
(N.D.Okla.2014); De Leon v. Perry, 975
F.Supp.2d 632, 648–49 (W.D.Tex.2014);
Bostic v. Rainey, 970 F.Supp.2d 456,
469–70 (E.D.Va.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 protec-
tion challenge precluded by Baker.”).
FN2. Plaintiff Basic Rights Education
Fund is a “civil rights organization dedic-
ated 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.
FN3. The record must reflect that Mult-
nomah County concluded 10 years ago that
denying marriage licenses to same-gender
couples violated the Oregon Constitution.
Walruff'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.
FN4. 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 govern-
ments, or the private sector. Or. Admin. R.
105–010–0018 (2013).
FN5. 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 affec-
tion—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).
FN6. The New Mexico Supreme Court
succinctly noted what religious impact al-
lowing same-gender marriage would have:
“Our holding will not interfere with the re-
ligious freedom of religious organizations
or clergy because (1) no religious organiz-
ation will have to change its policies to ac-
commodate same-gender couples, and (2)
no religious clergy will be required to sol-
emnize a marriage in contravention of his
or her religious beliefs.” Griego v. Oliver,
316 P.3d 865, 871 (2013); see also Kit-
chen, 961 F.Supp.2d at 1214 (“[T]he court
notes that its decision does not mandate
any change for religious institutions, which
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may continue to express their own moral
viewpoints and define their own traditions
about marriage.”).
FN7. 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 con-
tinue to play the game, now known as “kill
the carrier.”
D.Or.,2014.
Geiger v. Kitzhaber
--- F.Supp.2d ----, 2014 WL 2054264 (D.Or.)
END OF DOCUMENT
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Nos. 14-2386, 14-2387, 14-2388

In The United States Court of Appeals
For The Seventh Circuit


MARILYN RAE BASKIN, et al.,
Plaintiffs-Appellees,
v.

GREG ZOELLER, et al.,
Defendants-Appellants.


MIDORI FUJII, et al.,
Plaintiffs-Appellees,
v.

COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF REVENUE,
in his official capacity, et al.,
Defendants-Appellants.


PAMELA LEE, et al.,
Plaintiffs-Appellees,
v.

BRIAN ABBOTT, et al.,
Defendants-Appellants.


On Appeal From The United States District Court
For The Southern District of Indiana
Case Nos. 1:14-cv-00355-RLY-TAB,
1:14-cv-00404-RLY-TAB, 1:14-cv-00406-RLY-MJD
The Honorable Richard L. Young Presiding

SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES
VOL. 2 OF 2
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (259 of 518)


Paul D. Castillo (Counsel of Record)
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500
Dallas, Texas 75219

Jordan M. Heinz
Brent P. Ray
Dmitriy G. Tishyevich
Melanie MacKay
Scott Lerner
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, Illinois 60654

Camilla B. Taylor
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
105 West Adams, Suite 2600
Chicago, Illinois 60603


Counsel for Plaintiffs-Appellees Marilyn Rae Baskin, et al.

Kenneth J. Falk (Counsel of Record)
Gavin M. Rose
Kelly R. Eskew
ACLU OF INDIANA
1031 East Washington Street
Indianapolis, Indiana 46202

Sean C. Lemieux
LEMIEUX LAW
23 East 39th Street
Indianapolis, Indiana 46205


James Esseks
Chase Strangio
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004

Counsel for Plaintiffs-Appellees Midori Fujii, et al.

William R. Groth (Counsel of Record)
FILLENWARTH DENNERLINE
GROTH & TOWE LLP
429 E. Vermont Street, Suite 200
Indianapolis, Indiana 46202

Karen Celestino-Horseman
Of Counsel, AUSTIN & JONES, P.C.
One North Pennsylvania Street,
Suite 220
Indianapolis, Indiana 46204

Mark W. Sniderman
SNIDERMAN NGUYEN, LLP
47 South Meridian Street, Suite 400
Indianapolis, Indiana 46204
Kathleen M. Sweeney
SWEENEY HAYES LLC
141 East Washington, Suite 225
Indianapolis, Indiana 46204

Counsel for Plaintiffs-Appellees Pamela Lee, et al.
Additional Counsel Listed on Signature Block
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (260 of 518)



Dated: July 29, 2014

Respectfully submitted,

/s/ Jordan M. Heinz

Jordan M. Heinz
Brent P. Ray
Dmitriy G. Tishyevich
Melanie MacKay
Scott Lerner
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, Illinois 60654
(312) 862-2000
jordan.heinz@kirkland.com
brent.ray@kirkland.com
dmitriy.tishyevich@kirkland.com
melanie.mackay@kirkland.com
scott.lerner@kirkland.com

Barbara J. Baird
LAW OFFICE OF BARBARA J. BAIRD
445 North Pennsylvania Street, Suite
401
Indianapolis, Indiana 46204-0000
(317) 637-2345
bjbaird@bjbairdlaw.com

Counsel for Plaintiffs-Appellees
Marilyn Rae Baskin, et al.


Paul D. Castillo (Counsel of Record)
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500
Dallas, Texas 75219
(214) 219-8585, ext. 242
pcastillo@lambdalegal.org

Camilla B. Taylo