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Mitchell F. Thompson, Esq.


R. Todd Thompson, Esq.
Thompson Gutierrez & Alcantara, P.C.
238 Archbishop Flores Street, Suite 801
Hagatfia, Guam 96910
Telephone: (671)472-2089
Facsimile: (671)477-5206

William D. Pesch, Esq.

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DISTRICT COURT OF GUAM


APR 73 2015

Guam Family Law Office


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173 Aspinall Avenue, Suite 203


Hagatna, Guam 96910
Telephone: (671) 472-8472
Facsimile: (671)477-5873

CLERK OF COURT

Attorneys for Plaintiffs Kathleen M. Aguero and


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Loretta M. Pangelinan

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IN THE DISTRICT COURT OF GUAM

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TERRITORY OF GUAM

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KATHLEEN M. AGUERO and LORETTA

CIVIL CASE NO.

M. PANGELINAN,
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Plaintiffs,
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EDDIE BAZA CALVO in his official capacity as


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Governor of Guam; and CAROLYN GARRIDO

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in her official capacity as Registrar in the Office


of Vital Statistics, Department of Public
Health and Social Services,

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Defendants.
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MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF
PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT

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ORIGINAL

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 1 of 34

00 0 0

TABLE OF CONTENTS
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INTRODUCTION

STATEMENT OF FACTS

ANALYSIS

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I.

SUMMARY JUDGMENT SHOULD BE GRANTED

EXPEDITIOUSLY BECAUSE THE LAW IS SETTLED;

AND NO AMOUNT OF DISCOVERY OR FUTURE


PROCEEDINGS CAN ALTER OR AMPLIFY ON THE
MATERIAL FACTS OR CONTROLLING LAW

A.
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B.

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II.

Summary Judgment is Appropriate under the


Circumstances at Bar

Given the Ninth Circuit's Controlling Precedent


in Latta v. Otter, Summary Judgment Should be
Granted Expeditiously and Without Delay

WHILE MOST OF GUAM'S MARRIAGE LAWS ARE

PURPORTEDLY GENDER-NEUTRAL, TOGETHER


THEY IMPERMISSIBLY RESTRICT MARRIAGE

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LICENSES TO "OPPOSITE-SEX" APPLICANTS

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A.

Guam's Marriage Eligibility Laws are Ostensibly


Gender-Neutral

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B.

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The Office of Vital Statistics Statute Defines

Marriage as for Persons of "Opposite-Sex"

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Similar Marriage License Bans have been Struck


Down to the Extent they have been Applied in a
Discriminatory Manner

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DPHSS's Application of Guam's Marriage Licensing


Laws in a Discriminatory Fashion Violates the
Constitution's Guarantee of Equal Protection

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C.
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D.
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III.

GUAM'S BAN ON MARRIAGES FOR SAME-SEX

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COUPLES DOES NOT SURVIVE HEIGHTENED

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CONTROLLING CIRCUIT PRECEDENT

EQUAL PROTECTION SCRUTINY UNDER


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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 2 of 34

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IV.

GUAM'S BAN ON MARRIAGES FOR SAME-SEX


COUPLES UNCONSTITUTIONALLY VIOLATES

PLAINTIFFS' FUNDAMENTAL RIGHT TO MARRY

CONCLUSION

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 3 of 34

TABLE OF AUTHORITIES

CASES

PAGE(S)

Anderson v. Liberty Lobby, Inc.,


3

477 U.S. 242 (1986)

Aydin Corp. v. Loral Corp.,


718 F.2d 897 (9th Cir.1983)

5
6
7

Baskin v. Bo pan.
766F.3d648 (7th Cir.), cert, denied, 135 S. Ct. 316(2014)

Bishop v. Smith.
760 F.3d 1070 (10th Cir.), cert, denied, 135 S. Ct. 271 (2014)

2,18

2,11, 12

8
9

Bishop v. United States ex rel. Holder.


962 F. Supp. 2d 1252 (N.D. Okla.), affdsub mm. Bishop. 760 F.3d 1070,
cert, denied, 135 S. Ct. 271 (2014)

10

Bostic v. Rainey,
11

970 F. Supp. 2d 456 (E.D. Va.), affdsub mm. Bostic. 760 F.3d 352,
cert, denied sub mm. Rainey v. Bostic. 135 S. Ct. 286 (2014)

12

Bostic v. Schaefer.
13

760 F.3d 352 (4th Cir.), cert, denied, 135 S. Ct. 308 (2014)

14

Bourke v. Beshear.

_ S. Ct. _, 2015 WL 213651 (2015)

2, 10,11,24

15

Bourke v. Beshear.
16

996 F. Supp. 2d 542 (W.D. Ky. 2014), rev 'dsub mm. DeBoer. 772 F.3d 388,
cert, granted. Bourke v. Beshear.
S. Ct._,2015 WL 213651 (2015)

Bowling v. Pence.
_ F. Supp. 2d _, 2014 WL 4104814 (S.D. Ind. 2014)

17
18

19

Bradacs v. Haley.

_ F. Supp. 3d _, 2014 WL 6473727 (D.S.C. 2014)

20

Brenner v. Scott.
21

999 F. Supp. 2d 1278 (N.D. Fla. 2014)

22

Burns v. Hickenlooper.
No. 14-cv-1817,2014 WL 3634834 (D. Colo. July 23, 2014)

23
in

24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 4 of 34

Campaign for S. Equal, v. Bryant.


_ F. Supp. 3d _, 2014 WL 6680570 (S.D. Miss. 2014)

Condon v. Halev.
3
4

2014 WL 5897175

10,12

Condon v. Halev.

21 F. Supp. 3d 572 (D.S.C. 2014)

2,11

6
7

Country Classic Dairies, Inc. v. State of Montana, Dep't of Commerce Milk Control Bureau.
847 F.2d 593 (9th Cir. 1988)
17
De Leon v. Perry.

975 F. Supp. 2d 632 (W.D. Tex. 2014)

DeBoer v. Snyder.
9

10

772 F.3d 388 (6th Cir. 2014)

Dobbs v. Anthem Blue Cross and Blue Shield,

600 F.3d 1275 (10th Cir. 1990)

11

11

First Nat'l Bank v. Cities Servs. Co..


12

391 U.S. 253 (1968)

13

Freeman v. City of Santa Ana.

68 F.3d 1180 (9th Cir. 1995)

18

14

Geieer v. Kitzhaber.
15

994 F. Supp. 2d 1128 (D. Or. 2014)

16

General Synod of the United Church of Christ v. Resinger.

12 F. Supp. 3d 790 (W.D.N.C. 2014)

17

Gray v. Orr,
18

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4 F. Supp. 3d 984 (N.D. 111. 2013)

Griego v. Oliver.

316 P.3d 865 (N.M. 2013)

16

20

Guam v. Guerrero.
21

290 F.3d 1210 (9th Cir. 2002)

22

Guzzo v. Mead.

17,23

No. 14-cv-200,2014 WL 5317797 (D. Wyo. Oct. 17,2014)


23
IV

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 5 of 34

2, 11,12

Hambv v. Parnell,

_ F. Supp. 3d _, 2014 WL 5089399 (D. Alaska 2014)

2, 8,10,22

Hart v. Massanari.
3

266 F.3d 1155 (9th Cir. 2001)

Henry v. Himes,

14 F. Supp. 3d 1036 (S.D. Ohio), rev'dsub nom. DeBoer. 772 F.3d 388,
cert, grantedsub nom. Obergefell v. Hodges.
S. Ct. ,
2015 WL 213646 (2015)

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Jernigan v. Crane.
7
8

_ F. Supp. 3d _, 2014 WL 6685391 (E.D. Ark. 2014)

Kitchen v. Herbert.

755 F.3d 1193 (10th Cir.), cert, denied, 135 S. Ct. 265 (2014)

2,11,12,24

Kitchen v. Herbert,
10

961F. Supp. 2d 1181 (D. Utah 2013), affd, 755 F.3d 1193,
cert, denied, 135 S. Ct. 265 (2014)

11
12

Laforge v. Consol. Rail Corp.,


1988 WL 38321 (E.D. Pa. Apr. 22,1988)

13

Latta v. Otter.

19 F. Supp. 3d 1054 (D. Idaho 2014), affd, 11\ F.3d456

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20

14

Latta v. Otter.
15

16

771 F.3d 456 (9th Cir. 2014)

passim

Lawson v. Kelly,

_F. Supp. 3d_, 2014 WL 5810215 (W.D. Mo. 2014)

17

Lee v. Orr.
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No. 13-cv-8719,2013 WL 6490577 (N.D. 111. Dec. 10,2013)

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Love v. Beshear,

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989 F. Supp. 2d 536 (W.D. Ky.), rev'dsub nom. DeBoer v. Snvder.


772 F.3d 388 (6th Cir. 2014), cert, grantedsub nom. Bourke v. Beshear.
_ S.Ct._, 2015 WL 213651 (2015)

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Loving v. Virginia.
388 U.S. 1 (1967)

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Majors v. Home.

14 F. Supp. 3d 1313 (D. Ariz. 2014)

passim

Marie v. Moser.
3

_F. Supp. 3d_, 2014 WL 5598128 (D. Kan. 2014)

2, 12, 15

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,


475 U.S. 574(1986)

McCabe v. Gen. Foods Corp..


81 lF.2d 1336 (9th Cir. 1987)

6
7

McGee v. Cole.

_ F. Supp. 3d _, 2014 WL 5802665 (S.D. W. Va. 2014)

McGee v. Cole.
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2014 WL 5802665 (S.D. W. Va. Nov. 7,2014)

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Obergefell v. Hodges,
_ S. Ct. _, 2015 WL 213646 (2015)

11

Obergefell v. Wvmyslo.

962 F. Supp. 2d 968 (S.D. Ohio 2013), rev'don other grounds sub nom.
DeBoer. 772 F.3d 388, cert, granted, Obergefell. 2015 WL 213646

14

Ogawa v. U.S. Explore & Study. Inc..


CIVIL CASE No. 11-00002,2013 WL 2256220 (D. Guam May 20, 2013)

15

Rainey v. Bostic.

12

13

135S.Ct.286(2014)

16

Rolando v. Fox,
17

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23 F. Supp. 3d 1227 (D. Mont. 2014)

2, 8,10,22

Rosenbrahn v. Daugaard.

_F. Supp. 3d_, 2015 WL 144567 (D.S.D. 2015)

Searcy v. Strange.
No. 14-cv-0208-CG-N (S.D. Ala. Jan. 23, 2015)

19
20
21

Sevcik v. Sandoval,

911 F.Supp.2d996(D.Nev.2012)

20

22

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SmithKline Beecham Corp. v. Abbott Labs.


740 F.3d 471 (9th Cir. 2014), reh 'g en banc denied,
vi

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 7 of 34

759 F.3d 990 (9th Cir. 2014)

Tanco v. Haslam.

18,20,22

_ S.Ct._, 2015. WL 213648 (2015)

Tanco v. Haslam.
4

7 F. Supp. 3d 759 (M.D. Tenn.), rev 'dsub nom. DeBoer.


772 F.3d 388, cert, granted sub nom. Tanco v. Haslam,
_ S. Ct. _, 2015. WL 213648 (2015)

Turner v. Safley.

482 U.S. 78(1987)

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U.S. v. Windsor,
8

U.S.

, 133 S.Ct. 2675 (2013)

20,21,22

United States v. Spedalieri.


910 F.2d 707 (10th Cir. 1990)

10
11

Washington v. Glucksberg,
521 U.S. 702 (1997)

12

Whitewood v. Wolf.

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992 F. Supp. 2d 410 (M.D. Pa. 2014)

13

Wolf v.Walker.
14

15
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986 F. Supp. 2d 982 (W.D. Wis.), affdsub nom. Baskin.


766 F. 3d 648 (7th Cir.), cert, denied sub nom. Walker v. Wolf.
135 U.S. 316 (2014)

Zablocki v. Redhail.

434 U.S. 374 (1978)

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17

18

STATUTES

PAGE(S)

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10 GCA 3207(h)

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19 GCA 3101

13

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19 GCA 3202(a)(8)

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19 GCA 3202(b)

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vn

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 8 of 34

OTHER AUTHORITIES

PAGE(S)

Fed. R. Civ. P. 56

4,6,7

Kansas Stat. Ann. 23 101

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NMSA 1978, Section 40-1-1 (1862-63)

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Vlll

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 9 of 34

Plaintiffs Loretta M. Pangelinan and Kathleen M. Aguero submit this memorandum of

points and authorities in support their motion for summary judgment. Plaintiffs request that

this Court declare unconstitutional under the United States Constitution and Guam's Bill of

Rights Guam's marriage laws, namely 10 G.C.A. 3207(h), and any other sources of Guam

law to the extent that they preclude same-sex couples from marriage or refuse to recognize their

lawful marriages (hereinafter the "Marriage Ban"), and enjoin Defendants and their officers,

employees, and agents from enforcing them.


INTRODUCTION

Plaintiffs only seek to enjoy the same Constitutional right to marry and equal protection

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of the laws that every other person in Guamindeed, every other person within the Ninth

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Circuitalready enjoys. They have enjoyed a committed, loving relationship for over nine

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years. From the beginning, they have been committed to wed each other, but have not done so

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because they were not sure the Guam authorities would allow them to marry. Now they know.

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Despite binding and clear federal precedent proscribing the denial of marriage to same-sex

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couples, DefendantsGuam public officialsrefused to accept Plaintiffs' Guam Marriage

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License Application, based on a facially discriminatory statute similar to those that have failed

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to withstand scrutiny under the Equal Protection and Due Process Clauses of the Fourteenth

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Amendment of the United States Constitution in nearly every jurisdiction where such laws have

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been challenged.

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Fortunately, however, this honorable Court may make quick work of the instant action

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because Plaintiffs' civil rights action only seeks to enforce the clear and unequivocal law in the

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Ninth Circuit that government officials must allow same-sex couples the freedom to marry.

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The near-unanimous pronouncement of scores of federal district and appellate courts across the
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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 10 of 34

United States that state laws precluding same-sex couples from marriage or refusing to

recognize their lawful marriages violate the constitutional guarantees of due process and equal

protection has occurred swiftly across this country and has settled the manner within this

Circuit.1 As a result, numerous courts have comprehensively rejected all of the purported

justifications for the denial of marriage licenses to same-sex couples.

1 See, e.g., Latta v. Otter. 771 F.3d 456 (9th Cir. 2014); Baskin v. Boean. 766 F.3d 648 (7th Cir.),
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cert, denied, 135 S. Ct. 316 (2014); Bostic v. Schaefer. 760 F.3d 352 (4th Cir.), cert, denied, 135 S. Ct.
308 (2014); Bishop v. Smith. 760 F.3d 1070 (10th Cir.), cert, denied, 135 S. Ct. 271 (2014); Kitchen v.
Herbert. 755 F.3d 1193 (10th Cir.), cert, denied, 135 S. Ct. 265 (2014); Searcy v. Strange. No. 14-cv0208-CG-N (S.D. Ala. Jan. 23, 2015); Rosenbrahn v. Daueaard. _ F. Supp. 3d _, 2015 WL 144567
(D.S.D. 2015); Jernigan v. Crane. _ F. Supp. 3d , 2014 WL 6685391 (E.D. Ark. 2014); Campaign
for S. Equal, v. Bryant. _ F. Supp. 3d _^ 2014 WL 6680570 (S.D. Miss. 2014); Rolando v. Fox. 23 F.
Supp. 3d 1227 (D. Mont. 2014); Bradacs v. Halev. _ F. Supp. 3d _, 2014 WL 6473727 (D.S.C. 2014);
Condon v. Halev. 21 F. Supp. 3d 572 (D.S.C. 2014); McGee v. Cole. _ F. Supp. 3d _, 2014 WL
5802665 (S.D. W. Va. 2014); Lawson v. Kelly.
F. Supp. 3d _, 2014 WL 5810215 (W.D. Mo. 2014);
Marie v. Moser. _ F. Supp. 3d _, 2014 WL 5598128 (D. Kan. 2014); Guzzo v. Mead. No. 14-cv-200,
2014 WL 5317797 (D. Wyo. Oct. 17, 2014); Hambv v. Parnell. _ F. Supp. 3d _, 2014 WL 5089399
(D. Alaska 2014); General Synod of the United Church of Christ v. Resinger. 12 F. Supp. 3d 790
(W.D.N.C. 2014); Majors v. Home. 14 F. Supp. 3d 1313 (D. Ariz. 2014); Brenner v. Scott. 999 F. Supp.
2d 1278 (N.D. Fla. 2014); Bowling v. Pence. _ F. Supp. 2d _, 2014 WL 4104814 (S.D. Ind. 2014);
Burns v. Hickenlooper. No. 14-cv-1817, 2014 WL 3634834 (D. Colo. July 23, 2014); Love v. Beshear.
989 F. Supp. 2d 536 (W.D. Ky.), rev'dsub nom. DeBoer v. Snvder. 772 F.3d 388 (6th Cir. 2014), cert.
granted sub nom. Bourke v. Beshear. _ S. Ct. , 2015 WL 213651 (2015); Whitewood v. Wolf. 992
F. Supp. 2d 410 (M.D. Pa. 2014); Baskin v. Boean. 12 F. Supp. 3d 1144 (S.D. Ind.), aff'd, 766 F.3d 648
(7th Cir.), cert, denied, 135 S. Ct. 316 (2014); Wolf v. Walker. 986 F. Supp. 2d 982 (W.D. Wis.), aff'd
sub nom. Baskin. 766 F. 3d 648 (7th Cir.), cert, denied sub nom. Walker v. Wolf. 135 U.S. 316 (2014);
Geigerv.Kitzhaber. 994 F. Supp. 2dl 128 (D. Or. 2014); Latta v. Otter. 19 F. Supp. 3d 1054 (D. Idaho),
affd, 771 F.3d 456 (9th Cir. 2014); Henry v. Himes. 14 F. Supp. 3d 1036 (S.D. Ohio), rev'dsub nom.
DeBoer. 772 F.3d 388, cert, granted sub nom. Obergefell v. Hodges. _ S. Ct. _, 2015 WL 213646
(2015); DeBoer v. Snvder. 973 F. Supp. 2d 757 (E.D. Mich. 2014), rev'd, 772 F.3d 388, cert, granted,
_ S. Ct. _, 2015 WL 213650 (2015); Bourke v. Beshear. 996 F. Supp. 2d 542 (W.D. Ky. 2014), rev'd
sub nom. DeBoer. 772 F.3d 388, cert, granted, Bourke v. Beshear. _ S. Ct. _, 2015 WL 213651
(2015); Tanco v. Haslam. 7 F. Supp. 3d 759 (M.D. Tenn.), rev'dsub nom. DeBoer. 772 F.3d 388, cert,
granted sub nom. Tanco v. Haslam. _ S. Ct. _, 2015. WL 213648 (2015); De Leon v. Perry. 975 F.
Supp. 2d 632 (W.D. Tex. 2014); Bostic v. Rainey. 970 F. Supp. 2d 456 (E.D. Va.), affd sub nom.
Bostic. 760 F.3d 352, cert, denied sub nom. Rainey v. Bostic. 135 S. Ct. 286 (2014); Bishop v. United
States ex rel. Holder. 962 F. Supp. 2d 1252 (N.D. Okla.), aff'd sub nom. Bishop. 760 F.3d 1070, cert.
denied, 135 S. Ct. 271 (2014); Obergefell v. Wvmvslo. 962 F. Supp. 2d 968 (S.D. Ohio 2013), rev'd on
othergrounds sub nom. DeBoer. 772 F.3d 388, cert, granted, Obergefell. 2015 WL 213646; Kitchen v.
Herbert. 96IF. Supp. 2d 1181 (D. Utah 2013), aff'd, 755 F.3d 1193, cert, denied, 135 S. Ct. 265 (2014);
Lee v. Orr. No. 13-cv-8719, 2013 WL 6490577 (N.D. III. Dec. 10, 2013); Gray v. Orr. 4 F. Supp. 3d
984 (N.D. 111.2013).
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While Defendants may disagree with the avalanche of federal court decisions ruling that

states may not, consistent with constitutional guarantees of liberty and equal protection,

prohibit same-sex couples and their families from the privileges and protections of marriage,

they may not disregard the rule of law. The legal issue is now completely settled in this

jurisdiction. In the Ninth Circuit, any doubt about the matter was put to rest late last year when

the court held that it is a violation of the Equal Protection clause of the Fourteenth Amendment

of the United States Constitution for a jurisdiction to forbid an otherwise qualified same sex

couple from being married. See Latta v. Otter. 771 F.3d 456 (9th Cir. 2014),pet. for reh'g en

banc denied, 779 F.3d 902 (9th Cir. Jan 9,2015).

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In Latta. the United States Court of Appeals for the Ninth Circuit unequivocally ruled

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that laws barring same-sex couples from marriage "unjustifiably discriminate on the basis of

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sexual orientation, and are in violation of the Equal Protection Clause." 771 F.3d at 476. In

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doing so, the Ninth Circuit rejected every justification the States of Idaho and Nevada had

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conjured to justify their exclusions of same-sex couples from marriage. Id. Attempts to obtain

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en banc review or to have the decision in Latta stayed were rejected by the Ninth Circuit and

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the U.S. Supreme Court, respectively. See Otter v. Latta. 135 S. Ct. 345 (2014); Latta. 779

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F.3d 902. As a result, the Ninth Circuit issued its mandate and, accordingly, it is undeniable

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that same-sex couples throughout the Ninth Circuit must now be allowed to get married.

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Consequently, Plaintiffs only seek from this Court what Latta requires: A timely ruling

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declaring Guam's Marriage Ban unconstitutional under the U.S. Constitution and Guam Bill of

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Rights, and enjoining the enforcement of Guam laws that prevent same-sex couples from

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marrying because such laws violate the constitutional guarantees of equal protection and due

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process.

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 12 of 34

STATEMENT OF FACTS

As specified in the separate CVLR Rule 56(g) Concise Statement of Undisputed Facts

accompanying this memorandum, the facts material to the resolution of this motion are entirely

undisputed.
Loretta M. ("Lo") Pangelinan and Kathleen M. ("Kate") Aguero have been in a

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6

committed, loving relationship for over nine years.

Kate works for a local bank, and Lo runs

her own maintenance and cleaning firm.3 Both Kate and Lo were born and raised on Guam.4

They are hard working life-long Guam residents with deep roots in the local community.5 Both

Kate and Lo feel that it is important to give back to the community by helping to raise and care

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for children in need on Guam.6 Both are registered foster parents with Department of Public

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Health and Social Services ("DPHSS"), and together they have cared for numerous foster

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children through the years.7 They are currently caring for three foster children.8

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Kate and Lo wish to marry each other because they love each other and are committed

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to each other for life.9 They want to celebrate their mutual love through marriage, and they

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wish to marry in Guam so that all their friends and family may attend and participate in their

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joyous occasion.10 While Kate and Lo could travel thousands ofmiles to get married inanother

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jurisdiction where marriage for same-sex couples is recognized, such travel would be costly

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2 Declaration of Kathleen M. Aguero ("Aguero Decl."), at \ 1 (Apr. 13, 2015); Declaration of


Loretta M. Pangelinan ("Pangelinan Decl."), at y 1 (Apr. 13,2015).

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3 Aguero Decl. atU2; Pangelinan Decl. atH2.


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9
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Aguero Decl. at U3; Pangelinan Decl. at%3.


Aguero Decl. at TJ 4; Pangelinan Decl. at ^ 4.
Aguero Decl. at U5; Pangelinan Decl. at| 5.
Aguero Decl. at H6; Pangelinan Decl. at II 6.
Aguero Decl. at U6; Pangelinan Decl. atH6.
Aguero Decl. at U7; Pangelinan Decl. at II7.
Aguero Decl. atJ 8; Pangelinan Decl. atII8.
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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 13 of 34

and difficult to arrange, given their busy schedules, responsibilities, and limited financial

resources.'' More importantly, they want to be able to invite their family and friends on Guam

to bear witness to their love and commitment for each other in the same way that different-sex

couples in Guam are able to do through marriage.12 Kate and Lo believe that they should not

have to leave Guam to have their love and commitment recognized.13

On April 8, 2015, Plaintiffs personally brought their application for a marriage license

to the Vital Statistics Office of DPHSS, in Mangilao, the office that processes marriage license

applications on Guam.14 DPHSS officials refused to accept the application and handed the

women two documents: (1) a 2009 opinion letter from the Acting Guam Attorney General

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regarding "common-law" unions in Guam; and (2) a copy of certain provisions from Tile 10 of

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the Guam Code Annotated, including 10 GCA Section 3207(h), indicating that, "[mjarriage

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means the legal union of persons of the opposite sex."15 At no time has any government

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official articulated any reason for failing to issue a marriage license to Plaintiffs aside from

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their status as a same sex couple.

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/ /

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/ /

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/ /

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Aguero Decl. at ^ 9; Pangelinan Decl. at H9.


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12 Aguero Decl. at ^f 10; Pangelinan Decl. at ^J10.


13 Aguero Decl. at TI11; Pangelinan Decl. at^ 11.

14 Aguero Decl. at ^12; Pangelinan Decl. at i 12.


15 Aguero Decl. atH13; Pangelinan Decl. at ^13.
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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 14 of 34

ANALYSIS

I.

SUMMARY JUDGMENT SHOULD BE GRANTED


EXPEDITIOUSLY BECAUSE THE LAW IS SETTLEDAND NO AMOUNT OF DISCOVERY OR FUTURE
PROCEEDINGS CAN ALTER OR AMPLIFY ON THE

MATERIAL FACTS OR CONTROLLING LAW

A,

According to Rule 56(b) of the Federal Rules of Civil Procedure, "[ujnless adifferent

time is set by local rule or the court orders otherwise, aparty may file amotion for summary

judgment at any time until 30 days after the close of all discovery." Rule 56(c) provides that,
"[tjhe court shall grant summary judgment ifthe movant shows that there is no genuine dispute

10

Summary Judgment is Annrnpriate under th* rircumstanrps at iw

11

as to any material fact and the movant is entitled to judgment as amatter of law." Fed. R. Civ.

12

P. 56(c). To demonstrate that amaterial fact cannot be genuinely disputed, the movant may:

13

(A)

14

cit[e] to particular parts of materials in the record,


including depositions, documents, electronically stored
information, affidavits or declarations, stipulations

(including those made for purposes of the motion


only), admissions, interrogatory answers, or other

15

materials; or
16
17
18

19

20
21

22
23
24

(B)

showf ] that the materials cited do not establish the ...

presence ofa genuine dispute, or that an adverse party


cannot produce admissible evidence to support the
fact.

Fed. R. Civ. P. 56(c)(1).

Afact is material if it might affect the outcome of the suit under the governing
substantive law. See Anderson v. Liberty Lohhv1 Inr 477 U.S. 242, 248 (1986). Thus, the
evidence presented in opposition to summary judgment must be "enough to require ajury or
judge to resolve the parties' differing versions ofthe truth at trial." Avdin Com, v. Loral fWp
6

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 15 of 34

718 F.2d 897, 902 (9th Cir.1983) (quotinz First Nat'l Bank v. Cities Servs. Co.. 391 U.S. 253,

288-89 (1968)). "The opposing party's evidence must be sufficient to create a genuine issue of

fact that is material to the outcome of the suit, whether or not it has the burden ofproof at

trial" Oeawa v. U.S. Explore & Study. Inc., CIVIL CASE No. 11-00002, 2013 WL 2256220,

at *3 (D. Guam May 20, 2013) (per Tydingco-Gatewood, C.J.) (emphasis in the original), citing

McCabe v. Gen. Foods Corp.. 811 F.2d 1336, 1340 (9th Cir. 1987). Thus, "[w]hen the moving

party has carried its burden ..., its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts . . . Where the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'"

10

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 586-87 (1986).

11

Furthermore, the Advisory Committee's Notes to the 2010 F.R.C.P. Amendments

12

recognize that Rule 56(b) eliminated the timing provisions in former subdivisions (a) and (c)

13

and "allows a motion for summary judgment to be filed at the commencement of an action."

14

The Notes recognize that, in many cases, the motion will be premature until the nonmovant has

15

had time to file a responsive pleading or other pretrial proceedings have been had.

16

Nevertheless, the new Rule clearly permits summary judgment motions to be brought,

17

maintained and ruled upon expeditiously, and in advance of discovery in appropriate cases.

18

B.

Id.

Given the Ninth Circuit's Controlling Precedent in Latta v. Otter* Summary


Judgment Should be Granted Expeditiously and Without Delay

19

Because the Ninth Circuit in Latta held that state laws barring same-sex couples from
20

marriage "unjustifiably discriminate on the basis of sexual orientation, and are in violation of
21

the Equal Protection Clause," 771 F.3d at 476, Plaintiffs respectfully request that this Court act
22

promptly to resolve the issues presented in this motion for summary judgment and lift the cloud
23
24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 16 of 34

of inferiority cast upon Plaintiffs and similarly-situated Guam residents. Simply put, the people

of Guam enjoy the same constitutional rights under the Fourteenth Amendment as every other

American. There is no reason to delay the vindication of such rights, particularly, when the law

is completely settled within this Circuit.

Because Latta is binding precedent, expedited summary judgment is appropriate in the

instant case. Indeed, upon the issuance of Latta, multiple districtcourts across the Ninth Circuit

expeditiously granted injunctive and declaratory relief against state laws, similar to Guam's

Marriage Ban, barring same-sex couples from marriage in direct response to the Ninth Circuit's

clear pronouncement that laws barring same-sex couples from marriage are unconstitutional.

10

See, e.g.. Rolando. 2014 WL 6476196, *4 (Granting summary judgment invalidating Montana's

11

ban on marriage for same-sex couples one month after Latta because "Latta represents binding

12

Ninth Circuit precedent and provides the framework that this Court must follow."); Hamby,

13

2014 WL 5089399, *12, n. 35 (Granting summary judgment invalidating Alaska's ban on

14

marriage for same-sex couples one week after Latta because "Latta is the controlling law of this

15

Circuit."); Majors, 14 F. Supp. 3d at 1315 (Granting summary judgment invalidating Arizona's

16

ban on marriage for same-sex couples ten days after Latta because "[t]his court is bound by

17

decisions of the Court of Appeals for the Ninth Circuit."); see also United States v. Spedalieri,

18

910 F.2d 707, 709 n. 2 (10th Cir. 1990) (when no Supreme Court decision establishes

19

controlling precedent, a district court "must follow the precedent of [its] circuit, regardless of its

20

views [about] the advantages of precedent from elsewhere).

21

Given that the law in the Ninth Circuit is now settled, summary judgment should be

22

granted without delay. There is no need for extensive briefing or oral argument. Nor is it

23
8
24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 17 of 34

necessary for this Court to write a lengthy opinion. Summary judgment should be granted

without delay because Ninth Circuit law controls the disposition of the instant case.

As previously noted, in Majors v. Home. 141 F. Supp. 3d 1313, the District Court for

the District of Arizona, which also sits in the Ninth Circuit, promptly granted pending summary

judgment motions challenging Arizona's ban on marriage for same-sex couples just ten days

after issuance of the Ninth Circuit's opinion in Latta. In so holding, the court's two-page Order

and Opinion stated:

When the pending motions were filed the law of this circuit
was not clear.

9
10
11

12
13
14
15

16
17

18
19

Thus, resolution of the motions would have

required this court to write a lengthy decision. However, the


Court of Appeals for the Ninth Circuit recently ruled that
substantially identical provisions of Nevada and Idaho law
that prohibit same-sex marriages are invalid because they
deny same-sex couples equal protection of the law, the right to
which is guaranteed by the Constitution of the United States.
This court is bound by decisions of the Court of Appeals
for the Ninth Circuit. For that reason, plaintiffs are
entitled to a declaration that the challenged laws are
unconstitutional together with a permanent injunction
prohibiting enforcement of the challenged laws.
Id. at 1315 (emphasis added and internal citations omitted).

The Majors court refused to stay its ruling, noting that no request for appellate or

certiorari relief would likely succeed:


A stay of this decision to allow defendants to appeal is not
warranted. It is clear that an appeal to the Ninth Circuit would
not succeed. It is also clearbased on the Supreme Court's
denial of petitions for writs of certiorari filed in connection

20

with several circuit court decisions which held that same-sex

21

marriage must be recognized in Indiana, Oklahoma, Utah,


Virginia, and Wisconsinthat the High Court will turn a deaf
ear on any request for relief from the Ninth Circuit's decision.

22

Majors. 14 F. Supp. 3d at 1315 (internal citations omitted).


23
24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 18 of 34

At the same time Majors was decided, another district court sitting within the Ninth

Circuit rendered a similar, iflonger, opinion and order granting summary judgment finding that

Alaska's ban onmarriage for same-sex couples is unconstitutional as a deprivation of basic due

process and equal protection principles under the Fourteenth Amendment of the U.S.

Constitution. Hambv v. Parnell. 2014 WL 5089399 (D. Alaska Oct. 12, 2014). In so holding,

the court noted that "Latta is the controlling law of this Circuit," and that neither the mere

pendency of an appeal nor a petition for rehearing destroyed the finality of Latta as binding

authority. Hambv. 2014 WL 5089399, at *12, n. 35. A month later the District Court for the

District of Montana also granted summary judgment invalidating Montana's marriage ban in

10

light of Latta. Rolando. 2014 WL 6476196, *4.

11

Elsewhere, courts have not hesitated to act expeditiously in the face of binding circuit

12

court rulings on the constitutionality of laws barring same-sex couples from marriage. For

13

example, in Condon v. Halev. 2014 WL 5897175, a district court judgesitting in South Carolina

14

granted summary judgment in favor of a same-sex couple less than one month after the filing of

15

an action similar to the one at bar. In Condon, the plaintiffs applied for a marriage license on

16

October 8,2014. Their application was accepted by the clerk but the Attorney General of South

17

Carolina then immediately initiated a state court action prohibiting the clerk from granting a

18

marriage license to Plaintiffs until a pending federal constitutional challenge had been heard and

19

decided. On October 15, 2014, the couple that was denied the license sued in District Court for

20

the District of South Carolina and moved for a preliminary injunction and summary judgment

21

just 6 days later, on October 22, 2104. The court granted the motions on November 12, 2014

22

based on controlling Fourth Circuit authority on point. Id., citing Bostic v. Schaefer. 760 F.3d

23

352 (4th Cir. 2014). In so holding, the district judge said the following:

24

10

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 19 of 34

While this debate over precedent and constitutional principle


is interesting, this Court finds most persuasive the clearly

stated authority of the Fourth Circuit's seminal decision in


Bostic. It is axiomatic that a decision of a circuit court, not

overruled by the United States Supreme Court, is controlling


precedent for the district courts within the circuit.

Condon v. Halev. No. CIV.A. 2:14-4010-RMG, 2014 WL 5897175 (D. S.C. Nov. 12, 2014)
5

(internal citation omitted).

Similarly, a district court in West Virginia granted summary

judgment invalidating West Virginia's ban on marriage for same-sex couples one month after
7

the Fourth Circuit's precedent in Bostic became binding because "[t]he holding in Bostic
8

controlled] th[e] case." McGee v. Cole. 2014 WL 5802665 (S.D. W. Va. Nov. 7,2014).
9

The grant of expeditious relief has not been limited to district courts within the Fourth
10

and Ninth Circuits, however. Faced with binding precedent from the Tenth Circuit in Kitchen
11

and Bishop, a district court in Wyoming granted a preliminary injunction enjoining enforcement
12

of Wyoming's ban on marriage for same-sex couples a mere ten days after the filing of the
13

original complaint and entered summary judgment less than one month after the filing of the
14

action was commenced. See Guzzo. 2014 WL 5317797 (D. Wyo., Oct. 17, 2014) *9. In
15

granting prompt relief, the Guzzo court stated that, "[w]hile the Tenth Circuit's decisions in
16

Kitchen v. Herbert. 755 F.3d 1193 (10th Cir. 2014), and Bishop v. Smith. 760 F.3d 1070 (10th
17

Cir. 2014), may be publicly debated, one thing remains undebatable:

'[A] district court is

18

bound by decisions made by its circuit court.'" Id., quoting Dobbs v. Anthem Blue Cross and
19

Blue Shield. 600 F.3d 1275, 1279 (10th Cir. 1990). In similarly prompt fashion, a district court
20

in Kansas enjoined enforcement of Kansas's ban on marriage for same-sex couples less than
21

one month after the commencement of the action "[b]ecause Tenth Circuit precedent is binding
22
23
24

11

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 20 of 34

on this Court, Kitchen and Bishop dictate the result here." See Marie v. Moser. 2014 WL

5598128 (D. Kan. Nov. 4,2014).

Moreover, as seen from the above examples, the grant of expeditious relief in cases

concerning the validity of state laws barring same-sex couples from marriage is not limited to

pending cases. In multiple instances, federal courts faced with binding precedent have granted

relief within a matter of a few weeks, if not days, after the commencement of an action. See,

e.g., Condon. 2014 WL 5897175 (granting summary judgment invalidating South Carolina's

marriage ban less than one month after the filing of the complaint); Guzzo. 2014 WL 5317797

(D. Wyo., Oct. 17, 2014) *9 (enjoining enforcement of Wyoming's marriage ban a mere ten

10

days after the filing of the complaint); Marie. 2014 WL 5598128 (enjoining enforcement of

11

Kansas's marriage ban less than one month after the commencement of the action).

12

As in all of the aforementioned cases, the Court here faces the unequivocal precedent of

13

a circuit court decision holding laws barring same-sex couples from marriage unconstitutional.

14

Because such precedent has not been overruled by the United States Supreme Court, it is

15

controlling and dispositive with respect to this action. Just as the district judges in Alaska,

16

Arizona, Kansas, Montana, South Carolina, West Virginia, and Wyoming were bound by

17

controlling Circuit precedent; this Court is bound by the Ninth Circuit's precedent in Latta. As

18

with the aforementioned courts, this Court should act expeditiously and enter summary

19

judgment without delay.

20

These and other cases demonstrate that Defendants have no legitimate justification to

21

continue to deny or delay justice to Plaintiffs, or similarly situated same-sex couples. There is

22

no effective or meaningful remedy for the loss of Constitutional rights; the only remedy of any

23

value is swift justice. This Court can rule expeditiously, as a matter of law, that the Guam's
12

24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 21 of 34

marriage ban violates Plaintiffs' fundamental constitutional rights to marry the person they
choose by faithful application ofcontrolling law as set out by the Ninth Circuit in Latta v. Otter.

This case is ripe for review without further delay; and this Court should put an end to the

unnecessary suffering, humiliation, stigma, and anxieties attendant to Guam's purported

marriage ban on Plaintiffs and all committed same-sex couples and their children who want, and

need, the security of marriage. As discussed below, every conceivable "justification" for bans

on marriage for same-sex couples has been considered and rejected by the Ninth Circuit in

Latta. Thus, itwould be a colossal waste ofjudicial resources to prolong this case.

II.

WHILE MOST OF GUAM'S MARRIAGE LAWS ARE


PURPORTEDLY GENDER-NEUTRAL, TOGETHER
THEY IMPERMISSIBLY RESTRICT MARRIAGE
LICENSES TO "OPPOSITE-SEX" APPLICANTS

10

11
12

13
14

A.

Guam's Marriage Eligibility Laws are Ostensibly Gender-Neutral

Guam's marriage laws are gender neutral insofar as they specify who is or is not

eligible for marriage. The key statute defining marriage on Guam reads as follows:

15

3101. What Constitutes Marriage.


16
17
18

Marriage is a personal relation arising out of a civil contract,


to whichthe consent of parties capable of making that contract

is necessary. Consent alone will not constitute marriage; it


must be followed by a solemnization authorized by this Title.
19 GCA 3101 (2015).

19
20

Amongst all the provisions of Title 19 regulating marriage, only a few make any
distinction at all between the gender of the marriage applicants; and none purports to ban

21

22
23
13
24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 22 of 34

marriage for same-sex couples.16 For example, none of the statutory grounds for denial of a

marriage license, set forth in Title 19 Section 3202(b) ofthe Code, has anything to do with the

gender ofthe applicants.17

B.

The Office of Vital Statistics Statute Defines Marriage as for Persons of


"Opposite-Sex"

However, gender-specific language regarding marriage licensing is found in a


6

completely separate Title of the Guam Code Annotated, Title 10. That provision falls within a
7

chapter of the Code establishing and regulating the DPHSS Office of Vital Statistics, and
8

amongst other definitions provides that, "[mjarriage means the legal union of persons of the
9

opposite sex." 10 GCA 3207(h). It is this provision that purportedly supports DPHSS's
10

denial of a license to Plaintiffs.


11
12
13
14

15
16
17

18
19
20
21

22
23

16 Sections 3108 and 3109 thereof provide that "the wife is the sole member of the contracted
union or subsequent family who may elect to use her maiden name as surname." See also 3202(a)(8)
(Providing that marriage license must indicate, "[w]hether the female elects to retain her maiden name
as her surname upon marriage as provided for by 3108.").

17 Section 3202(b) provides as follows:


(b) No license shall be issued when either of the applicants therefore is an imbecile, insane as
determined by the proper authority or who, at the time of making of the application of proof required
for said license, is under the influence of intoxicating liquor or narcotic drug. If an applicant is under
the age of eighteen (18) and has not been previously married, no license shall be issued unless the
consent in writing of a parent or guardian of the person under age is presented with the application. A
consent must be verified and such consent shall be retained with the application in the files of the
Department of Public Health and Social Services. The fact of the consent shall be noted upon the
license. In addition to the consent required, no license shall be issued for any person betweenthe age of
sixteen (16) and eighteen (18) unless the marriage of that person has been approved by an order in
writing issued from the Superior Court. A license to marry shall not be issued to any person under the
ageof sixteen (16) unless the court authorizes a license to be issued to an applicant who is under sixteen
(16) and with a child. No license shall be issued permitting marriage between first cousins, between an
adoptive parent and an adoptive child, between a step-parent anda step-child or between a guardian and
a ward unless a written order authorizing such a marriage has been issued by the Superior Court.
14

24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 23 of 34

C.

Similar Marriage License Bans have been Struck Down to the Extent they
have been Applied in a Discriminatory Manner

To the extent that DPHSS relies on the Guam Code's "opposite sex" definition of
3
4

marriage to justify its rejection of marriage licenses to same-sex couples, its reliance is
misplaced. While the particular language of purported marriage bans varies slightly from
jurisdiction to jurisdiction, there can be no doubt in the wake ofLatta that such laws violate the
Equal Protection Clause of the Fourteenth Amendment to the extent that they "deny lesbians

and gays who wish to marry persons ofthe same sex a right they afford to individuals who wish
8

to marry persons of the opposite sex." Latta. 771 F.3d at 464-65. [See also Part III of this
9

memorandum, infra.] Forthis reason, the court in Marie v. Moser. 2014 WL 5598128 (D. Kan.
10

Nov. 4, 2014), followed similar Tenth Circuit precedent on point in holding unconstitutional a
11

Kansas statutenearly identical to the Guam statute at issue herethat defined marriage as "a
12

civil contract between two parties who are of opposite sex" (together with a state constitutional
13

provision defining marriage as between "one man and one woman."). Id., at *4; Kansas Stat.
14

Ann. 23 101.
15

Because Guam's marriage statutes are similar to the corresponding statutes found in the
16

state of New Mexico, it is also useful to look to New Mexico law on point. The New Mexico
17

statutes, in kind with Guam's, describe marriage as a gender-neutral contractual arrangement


18

solemnized by the parties and sanctioned by the government.18 The substantive New Mexico
19

laws addressing eligibility to marry, like those of Guam, neither sanctioned nor prohibited
20
21

22
23

18 The New Mexico statutes provide that "marriage is contemplated by the law as a civil contract,
for which the consent of the contracting parties, capable in law of contracting, is essential." "Each
couple desiring to marry pursuant to the laws of New Mexico shall first obtain a license from the county
clerk of this stateand following a ceremony concluded in this statewhile the license for recording in the
county issuing the license." NMSA 1978, Section 40-1-1 (1862-63).
15

24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 24 of 34

marriage for same-sex couples. However, in New Mexico (circa 2013), the official marriage

license application only provided for asingle "male applicant" and a single "female applicant,"

which are the identical terms found on the Guam Marriage License Application Form.

some county clerks inNew Mexico denied same-sex couples marriage licenses.

Thus,

The Supreme Court of New Mexico in Grieeo v. Oliver, 316 P.3d 865 (N.M. 2013),

unanimously held that county clerks of that state must issue marriage licenses to same-sex

couples that meet the statutory requirements for marriage. Despite generally gender-neutral

marriage statutes, the court found statutory differentiation between same-sex and opposite-sex

couples based on a 1961 enactment authorizing the use of the gender-specific terms "male

10

applicant" and "female applicant." Id. p. 875. The New Mexico Supreme Court held that the

11

use of these terms, as well as the terms "bride" and "groom" in the marriage license form

12

evidenced a legislative intent that that a civil marriage be between a man and a woman. Id. at

13

875.20 Finding no defensible legal justification for treating same-sex couples differently than

14

opposite-sex couples, the New Mexico high court ordered county clerks to allow qualified

15

same-sex couples to wed and also required the clerks to provide gender-neutral marriage

16

license application forms. Id.

17

As indicated, the identical terms "male applicant" and "female applicant" are used in

18

Guam's Marriage Application form. As in New Mexico, it appears that the Guam Legislature

19
20

19 See Aguero Decl. at H12, Exh. A.


20 The New Mexico Supreme Courtconcluded that while none of the marriage statutes specifically

21
22
23

prohibited same-gender marriages, when read as a whole, the statutes had the effect of precluding samesex couples from marrying and benefiting from the rights, protections, and responsibilities that flowed
from a civil marriage, and, therefore, the statutory scheme was subject to state constitutional equal
protection challenge, where the phrasing of many statutes limited the concomitant state-based rights,
protections, and responsibilities of marriage to opposite-gender married couples. Griego v. Oliver. 316
P.3d at 876.
16

24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 25 of 34

had a hand in shaping these application forms, to the extent that it adopted the statute defining

marriage as "the legal union of persons of the opposite sex" and other language suggesting

gender-specific solemnization. In Guam, as in New Mexico, the legislature's tinkering with

otherwise gender-neutral marriage laws amounts to impermissible discrimination against same-

sex couples.

D.

DPHSS's Application of Guam's

Marriage

Licensing Laws in

Discriminatory Fashion Violates the Constitution's Guarantee of Equal


7

Protection

The Equal Protection clause of the Fourteenth Amendment of the federal Constitution

applies to Guam by virtue of48 USC Section 1421b(u) as well as Section 1421b(n). See Guam

10

v. Guerrero, 290 F.3d 1210, 1214 (9th Cir. 2002) (noting that Subsection (u) extended to Guam

11

"article I, section 9, clauses 2 and 3; article IV, section 1 and section 2, clause 1; the first to

12

ninth amendments inclusive; the thirteenth amendment; the second sentence of section 1 of the

13

fourteenth amendment; and the fifteenth and nineteenth amendments.").

14

The only reason the marriage license application submitted by Plaintiffs was treated any

15

differently than all the others is the fact that both applicants happened to be of the same gender.

16

DPHSS's failure to accept Plaintiffs' application can only been viewed as invidious

17

enforcement of a statue in a manner that discriminates against same-sex couples seeking to be

18

married. Plaintiffs have been denied equal protection under the law and are entitled to the

19

relief they seek herein.

20
21
22

As the Ninth Circuit has instructed:

'The first step in equal protection analysis is to identify the


[defendants'] classification of groups.' Country Classic
Dairies, Inc. v. State of Montana, Dep't of Commerce Milk
Control Bureau, 847 F.2d 593, 596 (9th Cir. 1988). To

23

accomplish this, a plaintiff can show that the law is applied in


17

24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 26 of 34

a discriminatory manner or imposes different burdens on


different classes of people. Christy v. Model, 857 F.2d 1324,

1331 (9th Cir. 1988), cert, denied, 490 U.S. 1114, 109 S.Ct.
3176, 104 L.Ed.2d 1038 (1989). "The next step ... [is] to

determine the level of scrutiny." Country Classic Dairies, 847

F.2d at 596.
4

Freeman v. Citv of Santa Ana. 68 F.3d 1180, 1187 (9th Cir. 1995), as amended on denial of

reh'pandreh'genbanc (Dec. 29,1995).


6
7

8
9
10

11
12
13
14
15

16
17

Here, "laws [that] distinguish on their face between opposite-sex couples, who are

permitted to marry ... and same-sex couples, who are not permitted to marry .. .discriminate
on the basis ofsexual orientation." Latta, 771 F.3d at 467-468. Thus, there can be no question

that Guam's marriage licensing laws are being applied in a discriminatory manner, namely to

the complete exclusion of same-sex couples. It is now settled law in the Ninth Circuit that laws

purporting to deny marriage licenses to same-sex couples "discriminate on the basis of sexual
orientation" and "are subject to heightened scrutiny." Id. at 468 {citing SmithKIine Beecham
Com, v. Abbott Labs. 740 F.3d 471 (9th Cir. 2014), reh'g en banc denied, 759 F.3d 990 (9th

Cir. 2014)); see also Baskin v. Bogan, 766 F.3d 648, 654, 656-657 (7th Cir. 2014). Likewise,

they discriminate on the basis of gender and are also subject to heightened scrutiny on that
basis. Latta. 771 F.3d at 480 (Berzon, J., concurring). Because Defendants have failed to and

cannot offer any legitimatelet alone, compellingjustification for such discrimination,

18

Plaintiffs are entitled to summary judgment in their favor.


19
20
/ /
21
22
/ /
23
18
24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 27 of 34

HI.

1
2

GUAM'S BAN ON MARRIAGES FOR SAME-SEX


COUPLES DOES NOT SURVIVE HEIGHTENED

EQUAL

PROTECTION

SCRUTINY

UNDER

CONTROLLING CIRCUIT PRECEDENT


4

As discussed, in Latta. the Ninth Circuit held that it is a violation of the Equal
5

Protection guarantee of the United States Constitution for a jurisdiction to forbid an otherwise
6

qualified same-sex couple from being married. See Latta v. Otter, 771 F.3d 456. Of course it

is well settled that "[a] district court bound by circuit authority ... has no choice but to follow
8

it, even if convinced that such authority was wrongly decided." Hart v. Massanari, 266 F.3d
9

1155, 1175 (9th Cir. 2001). Thus, to the extent that Guam's marriage laws are construed and
10

enforced as restricting marriage to opposite-sex couples, such classification simply does not
11

survive the heightened level of equal protection scrutiny required by binding, Ninth Circuit
12

authority as announced in Latta.


13

Because Latta is controlling Circuit precedent, it is useful to review the court's opinion
14

in some detail. Latta involved interpretation of Idaho and Nevada statutes and constitutional
15

amendments preventing same-sex couples from marrying and refusing to recognize the
16

marriages of same-sex couples validly performed elsewhere.

Plaintiffs in the separate

17

underlying cases were same-sex couples living in Idaho and Nevada and either wished to marry
18

there or have their out-of-state unions recognized there. They had sued for declaratory relief
19

and to enjoin the enforcement of the laws, because they deprived plaintiffs of the fundamental
20

due process right to marriage, and because they denied them equal protection of the law by
21

discriminating against them on the basis of theirsexual orientation and their sex.
22
23
19
24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 28 of 34

In the Nevada case, Sevcik v. Sandoval, 911 F.Supp.2d 996 (D. Nev. 2012), rev'd sub

nom. Latta. 771 F.3d 456, the court applied a "rational basis" standard of review and upheld

Nevada's laws. Subsequently, the Ninth Circuit handed down its decision in SmithKIine

Beecham Corp.. supra, 759 F.3d 990, which held that laws purporting to deny marriage

licenses to same-sex couples were subject to "heightened" equal protection scrutiny. After the

Ninth Circuit's decision in SmithKIine. the district court hearing the Idaho lawsuit concluded

that heightened scrutiny applied to Idaho's laws because they discriminated based on sexual

orientation, and invalidated them. Latta v. Otter. 19 F. Supp. 3d 1054 (D. Idaho 2014), aff'd,

771F.3d456.

10

On a consolidated appeal of both the Idaho and Nevada rulings, the Ninth Circuit in

11

Latta held that "the Idaho and Nevada laws at issue violate the Equal Protection Clause of the

12

Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the

13

same sex a right they afford to individuals who wish to marry persons of the opposite sex, and

14

do not satisfy the heightened scrutiny standard we adopted in SmithKIine."

15

Initially, the Latta court rejected the defendants' claims that the lawsuits did not present

16

substantial federal questions, stating, "[a]s any observer of the Supreme Court cannot help but

17

realize, this case and others like it present not only substantial but pressing federal questions."

18

Id. at 467, citing U.S. v. Windsor.

19

rejected the defendants' claim that the Idaho and Nevada marriage bans for same-sex couples

20

did not discriminate on the basis of sexual orientation, but rather on the basis of procreative

21

capacity, noting that the laws at issuelike the Guam statute at bardistinguished on their

22

face between opposite-sex couples and same-sex couples. Id. at 485. The court noted that the

23

Idaho and Nevada laws were "grossly over- and under-inclusive with respect to procreative

U.S.

, 133 S.Ct. 2675, 2694-96 (2013). Latta next

20
24

Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 29 of 34

capacity," because the states issued marriage licenses to many opposite-sex couples who cannot

or will not reproduce but not to same-sex couples who already have children or are in the

process of having or adopting them. Id. at 472.

The court then discussed its earlier ruling in SmithKIine. in which the court had held

that the Supreme Court in Windsor had "established a level of scrutiny for classifications based

on sexual orientation that is unquestionably higher than rational basis review," thus requiring

that heightened scrutiny be applied to equal protection claims involving sexual orientation." Id.

at 468, quoting SmithKIine at 481. Accordingly, the Latta court applied heightened scrutiny to

its review of the Idaho and Nevada laws, finding that the laws discriminated on the basis of

10

sexual orientation. Id. at 468.

11

Applying the heightened scrutiny standard, the Latta court then rejected, one by one, as

12

unfounded the defendants' purported justifications for the marriage bans. For example, in

13

addressing the perceived threat marriage between people of the same sex posed to the

14

institution of marriage, the court said, ". . . the fear that an established institution will be

15

undermined due to private opposition to its inclusive shift is not a legitimate basis for retaining

16

the status quo." Id. at 470. In rejecting the argument that differential treatment wasjustified in

17

order to promote an "optimal" male-female parenting model, the court said:

18

To allow same-sex couples to adopt children and then to label


their families as second-class because the adoptive parents are

19

of the same sex is cruel as well as

20

21
22

unconstitutional.

Classifying some families, and especially their children, as of


lesser value should be repugnant to all those in this nation
who profess to believe in "family values." In any event, Idaho
and Nevada's asserted preference for opposite-sex parents
does not, under heightened scrutiny, come close to justifying
unequal treatment on the basis of sexual orientation. Id. at
474.

23
21

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 30 of 34

The Latta court concluded that, "Windsor makes clear that the defendants' explicit

desire to express a preference for opposite-sex couples over same-sex couples is a categorically

inadequate justification for discrimination. Expressing such a preference is precisely what they

may not do." Id. at 473. As the court said,

Idaho and Nevada's marriage laws, by preventing same-sex

couples from marrying and refusing to recognize same-sex


marriages celebrated elsewhere, impose profound legal,
financial, social and psychic harms on numerous citizens of

those states. These harms are not inflicted on opposite-sex

9
10

couples, who may, if they wish, enjoy the rights and assume
the responsibilities of marriage. Laws that treat people
differently based on sexual orientation are unconstitutional
unless a "legitimate purpose ... overcome[s]" the injury
inflicted by the law on lesbians and gays and their families.
Id. at 475, quoting SmithKIine. 740 F.3d at 481-82.

11

In short, under a heightened scrutiny standard, the Ninth Circuit in Latta

12

comprehensively and convincingly rejected all of the defendants' purported justifications for

13

the Idaho and Nevada marriage bans.

14

It is clear in the wake of Latta, that district courts sitting within the Ninth Circuit are

15

bound to apply a heightened scrutiny to any state or territorial attempt to deny same-sex

16

partners the right to a marriage license. See, e.g., Rolando, 2014 WL 6476196, *4 ("Latta

17

represents binding Ninth Circuit precedent and provides the framework that this Court must

18

follow."); Hambv. 2014 WL 5089399, *12, n. 35 ("Latta is the controlling law of this

19

Circuit."); Majors. 14 F. Supp. 3d at 1315 ("This court is bound by decisions of the Court of

20

Appeals for the Ninth Circuit."). Unquestionably, the Defendants' unjustified and unjustifiable

21

refusal to issue a marriage license to Plaintiffs in the instant case fails to survive any level of

22

equal protection scrutiny, must less heightened scrutiny. Because Guam's statute restricting

23

marriage to "opposite sex" couples is functionally identical to the Idaho and Nevada statutes
22

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 31 of 34

restricting marriage to "a man and a woman," the Guam statute cannot withstand heightened

equal protection scrutiny.21 As a matter oflaw, Plaintiffs are entitled to summary judgment.

There can be no dispute but that the marriage ban at issue in the instant case, like

similar marriage bans throughout the country that have been struck down, imposes "profound

legal, financial, social and psychic harms on numerous citizens in those states." Latta, at 476.

Latta is binding authority within the circuit, regardless of any futile attempts by Defendants to

avoid its application. Just as district courts in Arizona, Alaska, Colorado and Wyoming

following the Ninth Circuit's decision in Latta, which struck down the Idaho and Nevada

marriage bans, this Court should apply the controlling law and grant Plaintiffs prompt and

10

comprehensive relief.
IV.

11

GUAM'S BAN ON MARRIAGES FOR SAME-SEX


COUPLES
UNCONSTITUTIONALLY
VIOLATES
PLAINTIFFS' FUNDAMENTAL RIGHT TO MARRY

12
13

Furthermore, aside from violating the constitutional guarantee to equal protection,

14

15

Guam's Marriage Ban also deprives Plaintiffs of their fundamental right to marry.

16

depriving Plaintiffs of their fundamental right to marry, the Marriage Ban violates the

17

Constitution's guarantee of due process, which protects individuals from arbitrary

18

governmental intrusion into fundamental rights. See, e.g., Washington v. Glucksberg, 521 U.S.

19

702, 719-720 (1997). The Due Process Clause of the Fourteenth Amendment of the federal

20

Constitution applies to Guam by virtue of 48 USC Section 1421b(u) as well as Section

21

1421b(e). See Guerrero. 290 F.3d at 1214.

22
23

21

See Latta. at n. 2.
23

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 32 of 34

By

As the Fourth Circuit held in Bostic. marriage bans, such as Guam's, "unquestionably

... impede the right to marry by preventing same-sex couples from marrying and nullifying the

legal import of their out-of-state marriages." 370 F.3d at 377. The freedom to marry "is a

fundamental right," Turner v. Saflev. 482 U.S. 78, 95 (1987), that "has long been recognized as

one of the vital personal rights essential to the orderly pursuit of happiness by free men,"

Loving v. Virginia, 388 U.S. 1, 12 (1967). Moreover, "[t]he choice of whether and whom to

marry is an intensely personal decision that alters the course of an individual's life. Denying

same-sex couples this choice prohibits them from participating fully in our society, which is

precisely the type of segregation that the Fourteenth Amendment cannot countenance." Bostic,

10

370 F.3d at 384. "[T]he fundamental right to marriage, repeatedly recognized by the Supreme

11

Court, in cases such as Loving v. Virginia. 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S.

12

374 (1978), and Turner v. Saflev. 482 U.S. 78 (1987), is properly understood as including the

13

right to marry an individual of one's choice. That right applies to same-sex marriage just as it

14

does to opposite-sex marriage." Latta. 771 F.3d at 477 (Reinhardt, J., concurring). As such,

15

"those who wish to marry a person of the same sex are entitled to exercise the same

16

fundamental right as is recognized for persons who wish to marry a person of theopposite sex."

17

Kitchen. 755 F.3d at 1229-1230.

18
19

"Thatthe adage 'justice delayed is justicedenied' may by now be trite, that makes it no

20

less true." Laforee v. Consol. Rail Corp.. 1988 WL 38321, at *1 (E.D. Pa. Apr. 22, 1988).

21

This truth has particular application here, where interference with rights as fundamental as

22

familial integrity and the choice of whom to marry are infringed. As special as Guam is, there

23

is nothing special about its marriage ban or the justifications supporting it that would warrant
24

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 33 of 34

continued delay. Plaintiffs, and all same-sex couples who wish to marry on Guam, should be

afforded their constitutional rights without further delay or governmental obstruction.


CONCLUSION

3
4

This brief is lengthy, but only for the sake ofthoroughness. In fact, the Court's task is

simple and straightforward. No extended opinion and order is required. Based on controlling

Ninth Circuit authority, the denial of a marriage license to same-sex couples on Guam is a

violation of the Constitutional guarantee of equal protection. It is also a deprivation of the

Plaintiffs fundamental right to marry. Accordingly, Plaintiffs' motion for summary judgment

should be GRANTED, and the Court should enjoin enforcement of Guam's ban of same-sex

10

couples from marriage and declare that same-sex couples are entitled to marry on Guam on the

11

same terms as different-sex couples.

12

Respectfully submitted this 13lh day ofApril, 2015.

13

THOMPSON GUTIERREZ & ALCANTARA, P.C.

Attorneys for Plaintiffs Kathleen M. Aguero and

14

Loretta M. Pangelinan
15

By.

16

RANDALISTOBD THOMPSON
17

PI 51021.RTT

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Case 1:15-cv-00009 Document 3 Filed 04/13/15 Page 34 of 34