3:14-cv-00064 #95

Case: 3:14-cv-00064-bbc Document #: 95 Filed: 04/10/14 Page 1 of 42
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN VIRGINIA WOLF, et al., Plaintiffs, vs. SCOTT WALKER, et al., Defendants. Case No. 14-cv-64
PLAINTIFFS RESPONSE TO STATE DEFENDANTS MOTION TO DISMISS
JOHN A. KNIGHT American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 (312) 201-9740 jaknight@aclu.org LAURENCE J. DUPUIS SBN: 1029261 American Civil Liberties Union of Wisconsin Foundation 207 E. Buffalo Street, Suite 325 Milwaukee, Wisconsin 53202 (414) 272-4032 ldupuis@aclu-wi.org * admitted pro hac vice
JAMES D. ESSEKS* American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project 125 Broad Street New York, New York 10004 (212) 549-2623 jesseks@aclu.org HANS J. GERMANN* GRETCHEN E. HELFRICH* FRANK DICKERSON* Mayer Brown LLP 71 South Wacker Drive Chicago, Illinois 60606-4637 (312) 782-0600 hgermann@mayerbrown.com ghelfrich@mayerbrown.com fdickerson@mayerbrown.com
TABLE OF CONTENTS INTRODUCTION ......................................................................................................................... 1 ARGUMENT................................................................................................................................. 2 I. II. III. IV. Plaintiffs Agree That Claims Against Defendants Chisholm And King Can Be Dismissed ......................................................................................................... 2 Plaintiffs Complaint Is Not Impermissibly Vague ............................................... 3 Plaintiffs State Claims With Respect To Defendants Chandler And Anderson ................................................................................................................ 7 Plaintiffs Have Stated A Claim That The Marriage Ban Violates The Due Process And Equal Protection Clauses ................................................................ 12 A. B. C. Count One Adequately Pleads A Claim................................................... 12 Count Two Adequately Pleads A Claim.................................................. 14 Count Three Adequately Pleads A Claim................................................ 17 1. 2. The marriage ban discriminates on the basis of sexual orientation on its face................................................................... 17 Sexual Orientation is a suspect class, and laws that discriminate against gays and lesbians are therefore subject to heightened scrutiny.................................................................. 18
D. V.
Count Four Adequately Pleads A Claim.................................................. 24
Baker v. Nelson Does Not Foreclose Plaintiffs Claims ...................................... 28
CONCLUSION............................................................................................................................ 32
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TABLE OF AUTHORITIES Page(s) CASES Ameritech Corp. v. McCann, 297 F.3d 582 (7th Cir. 2002) .................................................................................................8, 9 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), affd, 950 P.2d 1234 (Haw. 1997) .................................................24 Baker v. Nelson, 191 N.W.2d 185 (1971) .....................................................................................................29, 31 Baker v. Nelson, 409 U.S. 810 (1972)......................................................................................................... passim Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ...................................................................................................19 Bishop v. United States ex rel Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014)......................................................................... passim Bostic v. Rainey, 2014 WL 561978 (D. Va. Feb. 13, 2014) ......................................................................6, 24, 30 Bowen v. Gilliard, 483 U.S. 587 (1987)...........................................................................................................19, 22 Bowen v. Kendrick, 487 U.S. 589 (1988),..................................................................................................................5 Bowers v. Hardwick, 478 U.S. 186 (1986),................................................................................................................18 Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009) .....................................................................................................4 Caban v. Mohammed, 441 U.S. 380 (1979).................................................................................................................27 Califano v. Westcott, 443 U.S. 76 (1979)...................................................................................................................25 Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) ...................................................................................................22
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Christian Legal Socy v. Martinez, 130 S. Ct. 2971 (2010).............................................................................................................18 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ...................................................................................................32 Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).................................................................................................................21 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).................................................................................................................12 Craig v. Boren, 429 U.S. 190 (1976).................................................................................................................29 De Leon v. Perry, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014).................................................................. passim DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. March 21, 2014) .............................................................24, 31 Del Raine v. Williford, 32 F.3d 1024 (7th Cir. 1994) .....................................................................................................8 Doe by Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997), vacated and remanded on other grounds, City of Belleville v. Doe by Doe, 523 U.S. 1001 (1998)......................................................................27 Entmt Software Assn v. Blagojevich, 468 F.3d 641 (7th Cir. 2006) .....................................................................................................9 Erickson v. Pardus, 551 U.S. 89 (2007).....................................................................................................................4 Frontiero v. Richardson, 411 U.S. 677 (1973)...........................................................................................................21, 29 Garden State Equality v. Dow, 2012 WL 540608 (Sup. Ct. N.J. Feb. 21 2012) .......................................................................31 Gentry v. Duckworth, 65 F.3d 555 (7th Cir. 1995) .......................................................................................................8 Glen Theatre, Inc. v. Pearson, 802 F.2d 287 (7th Cir. 1986) ...................................................................................................28 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ...................................................................19, 20, 21, 23 -ii-
Griego v. Oliver, 316 P.3d 865 (N.M. 2013) .................................................................................................20, 26 Griswold v. Conn., 381 U.S. 479 (1965).................................................................................................................12 Hicks v. Miranda, 422 U.S. 332 (1975).................................................................................................................28 Hunter v. Erickson, 393 U.S. 385 (1969).................................................................................................................22 In re Angel Lace M., 184 Wis. 2d 492 (1994) .............................................................................................................7 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011).....................................................................................20 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ...................................................................................................13, 20 J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994).................................................................................................................25 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ...............................................................................28, 32 Johnson v. California, 543 U.S. 499 (2005).................................................................................................................26 Kerrigan v. Commr of Pub. Health, 957 A.2d 407 (Conn. 2008) .....................................................................................................20 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013).............................................................................. passim Kitchen v. Herbert, 2013 WL 6834634 (D. Utah Dec. 23, 2013)..............................................................................6 Lawrence v. Texas, 539 U.S. 558 (2003)......................................................................................................... passim Loving v. Virginia, 388 U.S. 1 (1967)............................................................................................................. passim Mandel v. Bradley, 432 U.S. 173 (1977).....................................................................................................28, 29, 31
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Massachusetts v. Dept of Health & Human Servs., 682 F.3d 1 (1st Dist. 2012) ......................................................................................................32 McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) .............................................................................................4 McGee v. Cole, 2014 WL 321122 (S.D. W. Va. Jan. 29, 2014)........................................................................31 McLaughlin v. Fla., 379 U.S. 184 (1964).................................................................................................................25 Milliken v. Bradley, 433 U.S. 267 (1977)...................................................................................................................5 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982).................................................................................................................27 Morales v. Cadena, 825 F.2d 1095 (7th Cir. 1987) ...................................................................................................8 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) .....................................................................................................20 Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) ........................................................................15, 16, 20 Pedersen v. U.S. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012).............................................................................. passim Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), appeal dismissed sub nom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013) ......................................................................................... passim Phillips v. Wisconsin Pers. Commn, 167 Wis.2d 205 (Ct. App. 1992)................................................................................................7 Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................................23 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).....................................................................................................24, 26, 27 Romer v. Evans, 517 U.S. 620 (1996)...........................................................................................................29, 31 Schroeder v. Hamilton Sch. Dist., 282 F.3d 946 (7th Cir. 2002) ...................................................................................................18 -iv-
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012)..................................................................................27, 32 Sevcik v. Sandoval, No. 12-17668 (9th Cir. 2012) ...................................................................................................27 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), overrd on other grounds, 447 F.3d 673 (9th Cir. 2006) ...................................................................................................31 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ...................................................................................................20 Stanley v. Illinois, 405 U.S. 645 (1972).................................................................................................................27 Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010) .....................................................................................................4 Turner v. Safley, 482 U.S. 78 (1987).............................................................................................................12, 13 United States v. Windsor, 133 S. Ct. 2675 (2013)..................................................................................................... passim Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ............................................................................................20, 26 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).................................................................................................................22 White v. Fleming, 522 F.2d 730 (7th Cir. 1975) ...................................................................................................26 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)...................................................................................19, 20, 21, 30 Wolf-Lillie v. Sonquist, 699 F.2d 864 (7th Cir. 1983) .................................................................................................8, 9 Zablocki v. Redhail, 434 U.S. 374 (1978).....................................................................................................12, 13, 15 CONSTITUTIONS AND STATUTES United States Constitution .........................................................................................................1, 32 U.S. Const. amend. xiv, 1 ................................................................................................... passim -v-
Wis. Const. Art. XII, 1................................................................................................................22 Wis. Const. Art. XIII, 13..................................................................................................... passim 28 U.S.C. 1738C .........................................................................................................................16 42 U.S.C. 1983..........................................................................................................................1, 7 Wis. Sess. Laws ch. 112 901 (1981)...........................................................................................21 Wis. Stat. 15.43.............................................................................................................................9 Wis. Stat. ch. 69 .............................................................................................................................10 Wis. Stat. 66.1011.......................................................................................................................15 Wis. Stat. 69.03...........................................................................................................................10 Wis. Stat. 69.03(1)-(3), (5)-(6), (8), (13) ....................................................................................11 Wis. Stat. 69.16...........................................................................................................................11 Wis. Stat. 71.03(2)(d)-(j) ..........................................................................................................10 Wis. Stat. 71.03(23)(b)................................................................................................................10 Wis. Stat. 71.07(6) ................................................................................................................10, 15 Wis. Stat. 73.03(1), (2), (15).......................................................................................................10 Wis. Stat. 111.31(1) ....................................................................................................................15 Wis. Stat. ch. 765 .......................................................................................................................3, 10 Wis. Stat. 765.001(2) ..................................................................................................................11 Wis. Stat. 765.01.........................................................................................................................11 Wis. Stat. 765.16.........................................................................................................................11 Wis. Stat. 765.20(1) ....................................................................................................................11 Wis. Stat. 765.30(1)(a)..................................................................................................................2 Wis. Stat. 861.01(1) ....................................................................................................................15 Wis. Stat. 862.21(2) ....................................................................................................................15 Wis. Stat. 990.001(2) ....................................................................................................................7 -vi-
OTHER AUTHORITIES Fed. R. Civ. P. 8...............................................................................................................................4 Richard A. Posner, Sex and Reason (1992) ...................................................................................20 Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2012).......................................................................................................14 Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245 (1997).......................................................................................................................................21 Donald P. Haider-Markel, et al., Lose, Win, or Draw?: A Reexamination of Direct Democracy and Minority Rights, 60 Pol. Research. Q. 304 (2007) ......................................21 Wis. Legis. Ref. Bureau, Constitutional Amendment & Advisory Referendum to Be Considered by Wisconsin Voters, Nov. 7, 2006, Wisconsin Briefs 06-12 (Sept. 2006) ..........7
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INTRODUCTION Plaintiffs Virginia Wolf and Carol Schumacher, Kami Young and Karina Willes, Roy Badger and Garth Wangemann, Charvonne Kemp and Marie Carlson, Judith Trampf and Katharina Heyning, Salud Garcia and Pam Kleiss, William Hurtubise and Leslie Palmer, and Johannes Wallmann and Keith Borden (collectively, Plaintiffs) filed this action pursuant to 42 U.S.C. 1983 to challenge the validity of Article XIII, 13 of the Constitution of Wisconsin, as well as all provisions of Wisconsins marriage statutes that could be construed to constitute a statutory ban on marriage for same-sex couples (collectively with Article XIII, 13, the marriage ban), under the United States Constitution. Plaintiffs Wolf and Schumacher and Young and Willes seek recognition of their legally contracted out-of-state marriage by the State of Wisconsin; Plaintiffs Badger and Wangemann, Kemp and Carlson, Trampf and Heyning, Garcia and Kleiss, and Hurtubise and Palmer seek the freedom to marry in Wisconsin to affirm publicly the love they have for each other and the mutual commitments they have made; and Plaintiffs Wallmann and Borden seek to remain married in Wisconsin, rather than have their existing marriage voided. Defendants Walker, Van Hollen, Chandler, Anderson, Chisholm, and King (collectively, the State Defendants) now seek to dismiss this action under Rule 12(b)(6) on a variety of grounds. But the State Defendants feeble assertions of vagueness, unsupported arguments about improperly named defendants, and meritless arguments regarding Plaintiffs legal theories cannot distract from the simple truth at the heart of this litigation: Wisconsins denial of the right to marry to same-sex couples violates the United States Constitution. As Plaintiffs have set forth in their Brief in Support of Their Motion for Summary Judgment (Dkt #71), the marriage ban offends the Constitution in four ways. First, as alleged in Count One of Plaintiffs Amended Complaint, the ban violates the Due Process Clause by 1
interfering with the fundamental right of gay and lesbian people to marry the person of their choice. Second, as alleged in Count Two, the marriage ban violates the fundamental right of married same-sex couples who move to Wisconsin to keep their existing marriage, rather than have the State effectively nullify that marriage for state law purposes so long as they reside in Wisconsin. Third, as alleged in Count Three, Wisconsins prohibition on marriage for same-sex couples violates the Equal Protection Clause because the ban treats people differently on the basis of their sex, but is not substantially related to an important government interest. Fourth, as alleged in Count Four, the marriage ban classifies on the basis of sexual orientation, which should be treated as a constitutionally suspect basis for legislative classification, but the ban bears no rational relationship to any legitimate state interest, and thus fails to satisfy any level of equal protection scrutiny. Because Plaintiffs Complaint makes plausible allegations supporting relief under these four counts, the State Defendants Motion to Dismiss should be denied. ARGUMENT I. Plaintiffs Agree That Claims Against Defendants Chisholm and King Can Be Dismissed Wisconsins evasion statute states that [a]ny person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state may be fined not more than $10,000 or imprisoned for not more than 9 months or both. Wis. Stat. 765.30(1)(a). Defendants King and Chisholm, represented by the Attorney General, concede that the marriage evasion statute cannot be applied to resident same-sex couples who have left Wisconsin to marry, and have further stipulated that they will not prosecute Plaintiffs Wolf and Schumacher and Young and Willes. See March 11, 2014 Stipulation (Dkt #55-1). On the basis of this Stipulation, Plaintiffs agree that Defendants 2
King and Chisholm, whose only alleged role in implementing the marriage ban is enforcement of the evasion statute, can be dismissed as defendants. As Defendants recognize (Br. at 8), the Plaintiffs do not assert a separate legal claim or cause of action challenging the constitutionality of the evasion statute. Rather, they sought relief from enforcement of the evasion statute against them by certain named Defendants with prosecutorial authority, on the grounds that the underlying marriage ban (which would be the predicate of any prosecution of a same-sex couple under the evasion statute) violates the Due Process and Equal Protection clauses. Because those Defendants have represented that they will not prosecute same-sex couples who leave Wisconsin to marry, it is unnecessary to enjoin them from enforcing the evasion statute. Plaintiffs note, however, that these Defendants concession may not be binding on district attorneys in other counties in Wisconsin or on future attorneys general, and thus the dismissal of Defendants Chisholm and King from this action as moot does not preclude Plaintiffs from asserting claims or defenses against other prosecutors if they were to threaten prosecution under the evasion statute. II. Plaintiffs Complaint Is Not Impermissibly Vague The State Defendants argue (Br. at 12-13) that Plaintiffs complaint is impermissibly vague because, in addition to Wisconsins amendment banning marriage by same-sex couples (Wis. Const. Art. XIII, 13), it challenges any and all provisions of Wisconsins marriage statutes (Wis. Stat. ch. 765) that refer to marriage as a relationship between a husband and wife, if and to the extent that such provisions constitute a statutory ban on marriage for same-sex couples. (Dkt #26 1). The State Defendants further argue (Br. at 14) that Plaintiffs complaint is vague because it requests the Court to enjoin any other sources of state law that operate to exclude same-sex couples from marriage or to deny recognition of the marriages of same-sex
couples validly contracted in another jurisdiction. (Dkt #26 151(B)). These contentions are incorrect. Under Seventh Circuit precedent interpreting Twombly and Iqbal, plaintiffs are only required to plead allegations plausibly suggesting an entitlement to relief. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). [S]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009), quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007). As the Seventh Circuit has explained, Twombly, Erickson, and Iqbal do not cast any doubt on the validity of Rule 8 of the Federal Rules of Civil Procedure which requires that a pleading contain a short and plain statement of the claim. . . Swanson v. Citibank, N.A., 614 F.3d 400, 403-04 (7th Cir. 2010). Rather, these decisions simply require more careful attention to whether a complaint give[s] the opposing party fair notice; how much detail realistically can be given, and should be given, about the nature and basis or grounds of the claim; and in what way is the pleader expected to signal the type of litigation before the court. Id. at 404. In many straightforward cases, it will not be any more difficult today for a plaintiff to meet [the pleading standard under Twombly and Iqbal] than it was before the Courts recent decisions. Id. In fact, a discrimination complaint generally need only identif[y] the type of discrimination . . ., by whom . . ., and when . . . . Id. at 405. Plaintiffs provide the State Defendants fair notice of their claims in the complaint. Plaintiffs allege that Wisconsins Constitution prohibits marriage by same-sex couples and recognition of marriage of same-sex couples entered into elsewhere, and that certain (clearly identified) provisions of Wisconsins marriage statutes may also operate as a statutory ban on such marriages and marriage recognitions. (Dkt #26 1). These prohibitions violate the Due Process and Equal Protection clauses of the Fourteenth Amendment. (Dkt #26 1, 7-9,
126-150). These laws thus deprive Plaintiffs of their constitutional rights, and harm them in a wide variety of other ways. (Dkt #26 107-125). Those allegations are sufficient to state a claim and to provide Defendants with fair notice of its grounds. The State Defendants further contend that, in order to provide relief to Plaintiffs, the Court would potentially be required to affirmatively rewrite an indefinite number of state statutes, a task that they claim is beyond judicial cognizance.1 (Br. at 14 n.4) This is incorrect. The Plaintiffs have mounted a facial challenge to Wisconsins ban on marriage for same-sex couples. Plaintiffs seek a declaratory judgment that Wisconsins prohibition on
marriage by same-sex couples and refusal to recognize out-of-state marriages contracted by such couples is unconstitutional, and a permanent injunction requiring all Defendants to stop depriving same-sex couples of their rights in regard to marriage. Thus if Plaintiffs prevail, any part of Wisconsins marriage statute that could have been interpreted to exclude same-sex couples from marriage will no longer be susceptible of that interpretation. Such an outcome requires no massive rewriting of the statute books, and is well within the equitable power of this Court. See Milliken v. Bradley, 433 U.S. 267, 280 (1977) (holding that in a school desegregation case, the nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation (emphasis added)); see also Bowen v. Kendrick, 487 U.S. 589, 628 n.2
It is absurd for the State Defendants to suggest that the relief sought is beyond judicial cognizance because making marriage available to same-sex couples would affect such couples access to a large number of state law spousal benefits and obligations. The Supreme Court was able to strike down DOMA, even though it control[led] over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law, United States v. Windsor, 133 S. Ct. 2675, 2683 (2013), without requiring the Plaintiff to identify every statutory reference and in reliance on a report of such benefits, id., citing GAO, Shah, Defense of Marriage Act: Update to Prior Report at 2 (GAO-04-353R, 2004), that disclosed that we cannot guarantee that we have captured every individual law in the United States Code in which marital status figures. Shah Report at 2, available at http://www.gao.gov/assets/100/92442.html (last visited Apr. 9, 2014). 5
(1988) (Blackmun, J., dissenting) (explaining that the district court on remand was required to undertake the delicate task of fashioning relief appropriate to the scope of any particular violation it discovers. . . .Where justified by the nature of the controversy and the evidence in the record, a federal district court may invoke broad equitable powers to prevent continued unconstitutional activity.). Indeed, in cases challenging marriage bans in other states, virtually identical relief has been requested and granted. See Complaint at 25, Kitchen v. Herbert, 2013 WL 6834634 (D. Utah Dec. 23, 2013) (requesting declaratory and injunctive relief with regard to Amendment 3 and any other Utah law that bars same-sex marriage, including the Marriage Discrimination Statutes.); 2013 WL 6834634, at *1 n.1 (The courts Order specifically mentioned [certain Utah statutes and constitutional provisions]. The courts Order also applies to any other Utah laws that prohibit same-sex couples from marrying.); Complaint at 18, Bostic v. Rainey, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) (requesting declaratory and injunctive relief in regard to certain specified provisions and any other Virginia law that bars same-sex marriage or prohibits the States recognition of otherwise-lawful same-sex marriages from other jurisdictions.); 2014 WL 561978 at *23 (This Court finds [certain Virginia statutes and constitutional provisions], and any other Virginia law that bars same-sex marriage or prohibits Virginias recognition of lawful same-sex marriages from other jurisdictions unconstitutional.); De Leon v. Perry, 2014 WL 715741, at *28 (W.D. Tex. Feb. 26, 2014) (The Court enjoins Defendants from enforcing Article I, Section 32 of the Texas Constitution, any related provisions in the Texas Family Code, and any other laws or regulations prohibiting a person from marrying another person of the same sex or recognizing same-sex marriage.). To the extent that Wisconsins laws exclude same-sex couples from marriage, this Court should declare them unconstitutional.
Finally, any ambiguity as to whether or which Wisconsin statutes function as a ban on marriage by same-sex couples is attributable to the State of Wisconsin. Ordinarily, Wisconsin statutes should be construed so that [w]ords importing one gender extend and may be applied to any gender. Wis. Stat. 990.001(2). However, Attorney General Peggy Lautenschlagers2 explanatory statement accompanying the marriage amendment stated: Under present Wisconsin law, only a marriage between a husband and a wife is recognized as valid in this state. A husband is commonly defined as a man who is married to a woman, and a wife is commonly defined as a woman who is married to a man. A yes vote would make the existing restriction on marriage as a union between a man and a woman part of the state constitution, and would prohibit any recognition of the validity of a marriage between persons other than one man and one woman. Wis. Legis. Ref. Bureau, Constitutional Amendment & Advisory Referendum to Be Considered by Wisconsin Voters, Nov. 7, 2006, Wisconsin Briefs 06-12 at 2 (Sept. 2006).3 See also In re Angel Lace M., 184 Wis. 2d 492, 504 n.1 (1994); Phillips v. Wisconsin Pers. Commn, 167 Wis. 2d 205, 213, 226 (Ct. App. 1992). Wisconsin statutes confining marriage to different-sex couples through the use of the terms husband and wife are thus also unconstitutional under the Due Process and Equal Protection clauses of the Fourteenth Amendment. III. Plaintiffs State Claims With Respect To Defendants Chandler And Anderson. Defendants next argue that Plaintiffs claims against Secretary of Revenue Chandler and State Registrar Anderson should be dismissed because there are no allegations of personal involvement in Plaintiffs injuries. This contention is erroneous and has no basis in law or fact. Defendants assert that [l]iability under 42 U.S.C. 1983 must be based on a defendants personal involvement in the alleged constitutional violation. (Br. at 15) Defendants cite four
2
Attorney General Lautenschlager was Attorney General Van Hollens predecessor, and the statement was made in her official capacity as Attorney General of the State of Wisconsin. 3 Available at http://legis.wisconsin.gov/lrb/pubs/wb/06wb12.pdf. 7
cases in support of that claim (see id.), but none of them applies to an action seeking injunctive relief against a government official in his or her official capacity. Three of Defendants cases deal with damages claims asserting a theory of supervisory liability for a government official sued in his individual capacity. See Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995); Del Raine v. Williford, 32 F.3d 1024, 1047 (7th Cir. 1994); Morales v. Cadena, 825 F.2d 1095, 1101 (7th Cir. 1987). These cases are irrelevant to this matter. Plaintiffs do not seek to hold any of the Defendants personally liable for damages for the actions of those working under them. Rather, Plaintiffs allege that the law itself is unconstitutional. As the caption to the instant case states, Defendants Chandler and Anderson (and all other Defendants) are being sued in their official capacities. See, e.g., Dkt #26 (Amended Complaint) 22 (Defendant Richard G. Chandler is sued in his official capacity as the Secretary of Revenue of the State of Wisconsin.), 23 (Defendant Oskar Anderson is sued in his official capacity as the State Registrar.). Official capacity suits are distinguished from personal
capacity suits because individual (or personal) capacity suits do not seek to conform the States conduct to federal law; rather, such suits seek recovery from the defendant personally. Ameritech Corp. v. McCann, 297 F.3d 582, 586 (7th Cir. 2002). Defendants have not cited a single case to support the idea that the personal involvement requirement for personal capacity damages suits against government officials applies to a case in which a government official is sued in his official capacity. In fact, Defendants final case, Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983), undermines their position. Defendants cite Wolf-Lillie for the proposition that [a] causal connection, or an affirmative link, between the misconduct complained of and the official sued is necessary. (Br. at 15) But the very same paragraph of Wolf-Lillie goes on to state that [i]n
this case, the district court found such an affirmative link in the [defendant] sheriffs personal failure to supervise the process division. This finding, however, was unnecessary, as the plaintiffs suit was not directed against the sheriff in his individual capacity but was instead directed against the Sheriff of Kenosha County, in his official capacity. A different analysis is thus required. . . . As an official capacity suit, the action against the sheriff is merely another form of claim against the governmental entity itself. 699 F.2d at 869-70 (footnote omitted) (emphasis added). Yet even Wolf-Lillies different analysis is not relevant here because Wolf-Lillie was still a suit for damages, and this case is not. As the Seventh Circuit has repeatedly made clear, a government official can be sued in his or her official capacity to enjoin prospective action that would violate federal law. Ameritech Corp., 297 F.3d at 585-86 (internal quotation marks omitted). Such suits for injunctive relief require only that the government official have some connection to the challenged law. Entmt Software Assn v. Blagojevich, 468 F.3d 641, 645 (7th Cir. 2006). This some connection requirement is more than satisfied in this case. For example, Chapter 15 of the Wisconsin Statutes states that the Wisconsin Department of Revenue is under the direction and supervision of the secretary of revenueSecretary Chandler. Wis. Stat. 15.43. Under Chapter 73 of the Wisconsin Statutes, Secretary Chandler and his Department of Revenue have many responsibilities, including exercis[ing] general supervision over the administration of the assessment and tax laws of the state; confer[ring] with, advis[ing] and direct[ing] assessors, boards of review and county boards of assessment as to their duties under the statutes; and consult[ing] and confer[ing] with the governor of the state upon the subject of taxation, the administration of the laws in relation thereto and the
progress of the work of the department, and . . . furnish[ing] the governor from time to time such assistance and information as the governor may require. Wis. Stat. 73.03(1), (2), (15). The tax laws administered by Secretary Chandler include provisions that must be enforced in accordance with the marriage ban, and thus disadvantage Plaintiffs (Dkt #26 114, 114(d)) and other same-sex couples. See, e.g., Wis. Stat. 71.03(2)(d)-(j) (ability of a married couple to file a joint Wisconsin state income tax return); 71.07(6) (providing for a married persons credit); 71.05(23)(b) (creating certain personal tax exemptions applicable only to spouses).4 Defendants argument that Plaintiffs have not alleged that any harm has been caused to any Plaintiff by Secretary Chandler or the Department of Revenue is therefore demonstrably false. (Br. at 17) Registrar Andersons role also satisfies the some connection requirement. Under
Chapter 69 of the Wisconsin Statutes, the state registrarDefendant Andersonhas a long list of powers and duties related to vital statistics, including: directing and supervising the office of vital statistics, administering the statutory subchapter on vital statistics, accepting and indexing original marriage documents and directing any activity related to the operation of the system of vital statistics; prescribing, furnishing, and distributing forms under Chapter 765 of the Wisconsin Statutes (the Chapter titled Marriage); reporting violations of the subchapter to the district attorney; and request[ing] the assistance of the department of justice as he or she
4
Moreover, Defendant Chandlers Department of Revenue promulgated instructions for taxpayers that: (1) expressly state Wisconsin does not recognize a same-sex marriage; (2) forbid a same-sex couple to file a joint state income tax return; and (3) require the spouses of such a couple to enter the amount that would be on a federal return using the same filing status that is allowed for Wisconsin by completing a Wisconsin Schedule S, Allocation of Income to be Reported by Same-Sex Couples Filing a Joint Federal Return, to determine the amount to fill in as federal adjusted gross income. See Wisconsin Dept of Revenue, Wisconsin Income Tax Form 1 Instructions 2013 at 9 (line 1 instructions), available at http://www.revenue.wi.gov/forms/2013/Form1_inst.pdf. 10
determines necessary for the enforcement of the subchapter. Wis. Stat. 69.03(1)-(3), (5)-(6), (8), (13). The implications for anyone seeking to marry in Wisconsin are plain. For example, Section 69.16 of the Wisconsin Statuteswhich is part of the subchapter on vital statistics that Registrar Anderson is charged with administering (see Wis. Stat. 69.03)provides that [t]he form, content, application for and registration of marriage documents shall be [in accordance with] ch. 765. Wis. Stat. 69.16. Chapter 765 repeatedly refers to marriage in terms that could be construed to exclude lesbian and gay couples. See, e.g., Wis. Stat. 765.001(2) (Under the laws of this state, marriage is a legal relationship between 2 equal persons, a husband and wife. . . . (emphasis added)); Wis. Stat. 765.01 (Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of husband and wife. (emphasis added)); Wis. Stat. 765.16 (Marriage may be validly solemnized and contracted in this state only after a marriage license has been issued therefor, and only by the mutual declarations of the 2 parties to be joined in marriage that they take each other as husband and wife . . . . (emphasis added)). And as Defendants themselves point out (Br. at 17), Registrar Anderson has responsibility for prescrib[ing] forms for blank applications, statements, consent of parents, affidavits, documents and other forms as are necessary to comply with the provisions of [Chapter 765]. Wis. Stat. 765.20(1). Defendants argument that Plaintiffs have not ple[d] any specific action taken or harm threatened by Registrar Anderson (Br. at 17) cannot be taken seriously. First, Plaintiffs are not required to show a specific action or harm threatened, but rather that Registrar Anderson has a
11
connection to the statute challenged. Second, Plaintiffs are harmed every day by the laws administered by Anderson that prevent them from marrying the person they love. Defendants argument that Defendants Chandler and Anderson must have personal involvement has no basis in law. Both Defendants easily meet the actual some connection standard for suits against government officials in their official capacities seeking declaratory and injunctive relief. Thus Defendants have given no reason why suit cannot proceed against these two Defendants. IV. Plaintiffs Have Stated A Claim That The Marriage Ban Violates The Due Process And Equal Protection Clauses. A. Count One Adequately Pleads A Claim.
It is beyond dispute that the freedom to marry is a fundamental right protected by the Due Process Clause. See, e.g., Turner v. Safley, 482 U.S. 78, 95 (1987) ([T]he decision to marry is a fundamental right.); Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (The right to marry is of fundamental importance for all individuals.); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (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.); 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.); Griswold v. Conn., 381 U.S. 479, 486 (1965) (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
The State Defendants concede that marriage is a fundamental right, but argue that no Supreme Court or Seventh Circuit authority holds that the Due Process Clause extends the fundamental right to marry to include a fundamental right to marry someone of the same sex. (Br. at 19) In addition, the State Defendants argue that because the marriage of same-sex couples is not deeply rooted in this Nations history and tradition, it cannot be a fundamental right. (Br. at 19, quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)) The State Defendants argument is based on a distinction between the right to marriage and the right to same-sex marriage that is not supported by either Supreme Court or Seventh Circuit precedent. Indeed, the Supreme Court has never defined the right to marry by reference to those permitted to exercise that right. Thus, the Supreme Court addresses the fundamental right to marry in its decisions, see Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; Zablocki, 434 U.S. at 383-86; not the right to interracial marriage, the right to inmate marriage, or the right of people owing child support to marry. Accord In re Marriage Cases, 183 P.3d 384, 421 n.33 (Cal. 2008) (Turner did not characterize the constitutional right at issue as the right to inmate marriage.). In addition, the State Defendants are incorrect to assert that a practice is constitutionally permitted simply because it is rooted in history. Loving, in particular, is instructive. In Loving, the court did not defer to the historical exclusion of mixed-race couples from marriage. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010), appeal dismissed sub nom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013). As the federal district court for the District of Utah observed in its recent decision striking down Utahs marriage ban, [i]nstead of declaring a new
13
right to interracial marriage, the Court held that individuals could not be restricted from exercising their existing right to marry on account of the race of their chosen partner. Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1202 (D. Utah 2013). The Supreme Court addressed a similar issue in Lawrence v. Texas, 539 U.S. 558 (2003), where it found that due process protected the intimate personal relations of same-sex couples. The Court concluded that the framers of the due process clause knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence, 539 U.S. at 579. Wisconsins refusal to recognize Plaintiffs relationships through marriage demeans the couple[s], whose moral and sexual choices the Constitution protects and humiliates tens of thousands of children now being raised by same sex couples. United States v. Windsor, 133 S. Ct. 2675, 2694 (2013). As such, it burdens their fundamental rights, in violation of the Due Process Clause. B. Count Two Adequately Pleads A Claim.
The marriage ban violates the due process rights of same-sex couples who are lawfully married in other states, such as Plaintiffs Johannes Wallmann and Keith Borden, by declaring that their marriages are not valid or recognized. Wis. Const. Art. XIII, 13. In practical effect, Johannes and Keiths marriage has been annulled for state law purposes without their consent for as long as they live in Wisconsin. Basic due process principles prohibit a state from capriciously interfering with an existing marriage in this way. Indeed, established due process principles support the right to remain marrieda liberty interest in the ongoing existence of ones marriage without inappropriate government interferencewhich is complementary to, but distinguishable from, the right to marry itself. Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. 14
Rev. 1421 (2012); see also Zablocki, 434 U.S. at 397 n.1 (Powell, J., concurring) (observing that there is a sphere of privacy or autonomy surrounding an existing marital relationship into which the State may not lightly intrude); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013) (recognizing a same-sex couples right to remain married as appropriately protected by the Due Process Clause). The State Defendants argue that Plaintiffs claim should be dismissed because Wisconsin does not nullify existing same-sex marital relationships but rather refuses to recognize them. (Br. at 22) This distinction is semantic, not substantive. While residing in Wisconsin, as a result of the marriage ban, Johannes and Keith lose access to an array of rights and privileges that are available to married couples in Wisconsin, including the right to access the state married persons credit and other personal exemptions for state income tax purposes, protections offered to spouses in probate law, and protection against discrimination on the basis of marital status in numerous contexts. Dkt #26 114; see also, e.g., Wis. Stat. 71.07(6) (married persons tax credit); 862.21(2) (intestate inheritance of marital property interest in home); 861.01(1) (retention of undivided one-half interest in marital property); 111.31(1) (protection against discrimination based on marital status in employment context); 66.1011 (protection against discrimination based on marital status in housing context). Ultimately, Wisconsins refusal to recognize same-sex marriages performed in other states violates the substantive due process rights of the parties to those marriages because it deprives them of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process procedural protection whatsoever. Obergefell, 962 F. Supp. 2d at 982; see also De Leon v. Perry, 2014 WL 715741, at *24 (W.D. Tex. Feb. 26, 2014) (Texass refusal to
15
recognize Plaintiffs out-of-state same-sex marriage violates due process and implicates the associational rights discussed in cases like Griswold and Zablocki.). The State Defendants further argue that the marriage ban does not deprive Johannes and Keith of the benefits and responsibilities that come with the valid marriages for which they contracted out-of-state because Johannes and Keith currently possess the same benefits and responsibilities under California law that they possessed on the day they were married; the [marriage ban] has no effect on their California marriage.5 (Br. at 23-24) This argument is not responsive to Plaintiffs claim. The validity of Plaintiffs marriage in California is not at issue, and is not affected by Wisconsins marriage ban. The due process concern, as identified in Obergefell and De Leon, is that the marriage ban deprives Keith and Johannes of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process procedural protection. Obergefell, 962 F. Supp. 2d at 982; see also De Leon, 2014 WL 715741 at *24. Finally, the State Defendants argue that Section 2 of the Defense of Marriage Act, 28 U.S.C. 1738C (DOMA), authorizes the marriage ban and is not challenged by the Plaintiffs. (Br. at 24) As the State Defendants concede, [s]everal district courts have found that Section 2 of DOMA does not foreclose similar claims. (Br. at 24 n.5) This Court should follow the lead of these well-reasoned decisions. Plaintiffs do not need to challenge Section 2 of DOMA, because it is an entirely permissive federal law that does not mandate that states take any particular action, does not remove any discretion from states, does not confer benefits upon nonrecognizing states, and does not punish recognizing states. Bishop v. United States ex rel.
5
The State Defendants incorrectly assert that Plaintiffs Johannes Wallmann and Keith Borden were married in California. Johannes and Keith were actually married in Canada. Compl. 101. Johannes and Keiths marriage was recognized as valid in California no later than May 2008. Compl. 103. This error is immaterial to the analysis of the State Defendants position. 16
Holder, 962 F. Supp. 2d 1252, 1266 (N.D. Okla. 2014). It is Wisconsins marriage ban, not Section 2 of DOMA, that harms Plaintiffs. Id. (The injury of non-recognition stems exclusively from state law.). In addition, Congress cannot, through DOMA or otherwise, authorize Wisconsin to violate the Fourteenth Amendments guarantees of equal protection and due process through its marriage ban. See De Leon, 2014 WL 715741 at *22 (Whatever powers Congress may have under the Full Faith and Credit Clause, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause. (quoting Graham v. Richardson, 403 U.S. 365, 382 (1971))). C. Count Three Adequately Pleads A Claim 1. The marriage ban discriminates on the basis of sexual orientation on its face.
Wisconsins marriage ban denies equal protection of the laws on the basis of sexual orientation on its face. The ban states that [o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state. Wis. Const. Art. XIII, 13. The marriage ban further codifies the second-class status of same-sex couples by providing that [a] legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state, ensuring that both the dignitary recognition and full panoply of substantive rights associated with marriage are denied to lesbians and gay men. Id. The State Defendants claim that [o]n its face, the Marriage Amendment does not create a classification based upon sexual orientation (Br. at 25), and explain that because [n]either heterosexuals nor homosexuals are permitted to marry someone of the same sex in Wisconsin, the Marriage Amendment treats heterosexual and homosexual people exactly the same. Id. But the absence of an express reference to sexual orientation is no defense. As Justice OConnor explained in Lawrence (concurring in the judgment on equal protection grounds), [w]hile it is 17
true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual so that [t]hose harmed by this law are people who have same-sex sexual orientation. 539 U.S. at 581, 583. The court in Perry recognized the same notion in the context of marriage, explaining that [t]hose who choose to marry someone of the opposite sexheterosexualsdo not have their choice of marital partner restricted by [Californias marriage ban]. Those who would choose to marry someone of the same sexhomosexualshave had their right to marry eliminated by an amendment to the state constitution. Perry, 704 F. Supp. 2d at 996. See also Christian Legal Socy v. Martinez, 130 S. Ct. 2971, 2990 (2010) (Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].). Because the Wisconsin law targets conduct exclusively engaged in by lesbians and gay men (i.e., marriage to a person of the same sex), it discriminates on the basis of sexual orientation. 2. Sexual Orientation is a suspect class, and laws that discriminate against gays and lesbians are therefore subject to heightened scrutiny.
The State Defendants further claim that homosexuality is not a suspect class, and therefore homosexuals are not entitled to any heightened protection under the Constitution. (Br. at 25-26 (internal quotations and citations omitted)) It is true that in the past the Seventh Circuit has applied rational basis review in cases of discrimination based on sexual orientation. See, e.g., Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002) (citing cases, including Bowers v. Hardwick, 478 U.S. 186 (1986), for the proposition that homosexuals do not enjoy any heightened protection under the Constitution and therefore must show that the law was not rationally related to a legitimate state interest.) However, the Seventh Circuits conclusion that sexual orientation is not a suspect classification is called into question by Lawrence, 539 U.S. 558, which overturned Bowers v. Hardwick. See Pedersen v. Office of Pers. 18
Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012) ([T]he Supreme Courts holding in Lawrence remov[ed] the precedential underpinnings of the federal case law supporting the defendants claim that gay persons are not a [suspect or] quasi-suspect class.) (citations omitted); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 984 (N.D. Cal. 2012) ([T]he reasoning in [prior circuit court decisions], that laws discriminating against gay men and lesbians are not entitled to heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot stand post-Lawrence.). It is therefore no longer the case that rational basis is the correct standard of review for discrimination against homosexuals.6 After Lawrence, lower courts must apply the Supreme Court-mandated criteria to determine whether sexual orientation classifications should receive heightened scrutiny: A) whether the class has been historically subjected to discrimination; B) whether the class has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless. Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987), and Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)), affd United States v. Windsor, 133 S. Ct. 2675 (2013). Of these considerations, the first two are the most important. See id. (Immutability and lack of political power are not strictly necessary factors to identify a suspect class.); accord Golinski, 824 F. Supp. 2d at 987. As several federal and state courts have recently recognized, any faithful application of those factors leads to the inescapable conclusion that classifications based on sexual orientation must be recognized as suspect or quasi-suspect and subjected to heightened scrutiny. See, e.g., Windsor, 699 F.3d at 181-85; Golinski, 824 F. Supp. 2d at 985-90; Pedersen, 881 F. Supp. 2d at
6
The Seventh Circuits most recent application of the four-factor analysis to sexual orientation predates Lawrence. See Ben-Shalom v. Marsh, 881 F.2d 454, 464-66 (7th Cir. 1989) (relying on Bowers to conclude that gays and lesbians are not members of a suspect class). 19
310-33; Obergefell, 962 F. Supp. 2d at 986-92; Perry, 704 F. Supp. 2d at 997; In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011); Griego v. Oliver, 316 P.3d 865, 880-84 (N.M. 2013); Varnum, 763 N.W.2d 862, 885-96; In re Marriage Cases, 183 P.3d at 441-44; Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008). See also SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-84 (9th Cir. 2014) (finding heightened scrutiny applicable to sexual orientation without examining the four factors). Unequivocally, lesbians and gay men have historically been subjected to discrimination. As the Second Circuit recognized in Windsor, [i]t is easy to conclude that homosexuals have suffered a history of discrimination. Windsor and several amici labor to establish and document this history, but we think it is not much in debate. 699 F.3d at 182. For centuries, the prevailing attitude toward lesbians and gay men has been one of strong disapproval, frequent ostracism, social and legal discrimination, and at times ferocious punishment. Richard A. Posner, Sex and Reason 291 (1992); see also Nabozny v. Podlesny, 92 F.3d 446, 457 n.10 (7th Cir. 1996) (recognizing considerable discrimination leveled against homosexuals). The
existence of the marriage ban itself, targeted at lesbians and gay men, is further evidence of discrimination. Moreover, courts have agreed with near unanimity that homosexuality is irrelevant to ones ability to perform or contribute to society. There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individuals ability to contribute to society, at least in some respect. But homosexuality is not one of them. Windsor, 699 F.3d at 182; accord Golinski, 824 F. Supp. 2d at 986 ([T]here is no dispute in the record or the law that sexual orientation has no relevance to a persons ability to contribute to society); Pedersen, 881 F. Supp. 2d at 320 (same). In this respect, sexual orientation is akin to race, gender, alienage,
20
and national origin, all of which are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. Cleburne, 473 U.S. at 440.7 Third, the limited ability of gay people as a group to protect themselves in the political process, although not essential for recognition as a suspect or quasi-suspect class, see Windsor, 699 F.3d at 181, also weighs in favor of heightened scrutiny. In analyzing this factor, [t]he question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination. Id. at 184. The political influence of lesbians and gay men stands in sharp contrast to the political power of women in 1973, when a plurality of the Supreme Court concluded in Frontiero v. Richardson that sex-based classifications required heightened scrutiny. 411 U.S. 677, 688 (1973). After all, Congress had already passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, both of which protect women from discrimination in the workplace. See id. at 687-88. In contrast, there is still no express federal ban on sexual orientation discrimination in employment, housing, or public accommodations, and 29 states have no such protections either. See Golinski, 824 F. Supp. 2d at 988-89; Pedersen, 881 F. Supp. 2d at 326-28. And over the past 20 years, more than two-thirds of ballot initiatives that proposed to enact (or prevent the repeal of) basic antidiscrimination protections for gay and lesbian individuals have failed. Indeed, gay people have seen their civil rights put to a popular vote more often than any other group. Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245, 257 (1997); see also Donald P. Haider7
Indeed, Wisconsins own antidiscrimination protections for gays and lesbians recognize that sexual orientation is virtually never a relevant criterion in evaluating an individual. See Wis. Sess. Laws ch. 112 901 (1981) (adding sexual orientation as a protected class to numerous Wisconsin antidiscrimination statutes). 21
Markel, et al., Lose, Win, or Draw?: A Reexamination of Direct Democracy and Minority Rights, 60 Pol. Research Q. 304 (2007). The constitutional marriage ban itself acts to lock same-sex couples out of the normal political process. Wisconsins exclusion of same-sex couples from marriage is the only marriage law enshrined in the Wisconsin Constitution. Wis. Const. Art. XIII, 13. Plaintiffs cannot simply lobby the Wisconsin state legislature to remove the marriage ban through the ordinary political process. Instead, they are uniquely burdened with having to amend the Wisconsin Constitution, a much more difficult and cumbersome process. See Wis. Const. Art. XII, 1 (governing the amendment process). A selective disparity in the ability to advocate for a change in the law, disadvantaging a single class of people, is constitutionally suspect. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 483-84 (1982) (laws that subject one group to a debilitating and often insurmountable disadvantage in enacting legislation are constitutionally suspect); Hunter v. Erickson, 393 U.S. 385, 393 (1969) ([T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any persons vote or give any group a smaller representation than another of comparable size.). Finally, sexual orientation is an immutable characteristic. Bowen v. Gilliard, 483 U.S. 587, 602 (1987). The Seventh Circuit has noted that an immutable or fundamental
characteristic might be membership in an extended family, sexual orientation, a former association with a controversial group, or membership in a group whose ideas or practices run counter to the cultural or social convention of the country. The latter group might seem
plausibly alterable, but we respect an individuals right to maintain characteristics that are fundamental to their individual identities. Cece v. Holder, 733 F.3d 662, 669 (7th Cir. 2013)
22
(citation and quotation marks omitted) (emphasis added).
The Seventh Circuits view is
consistent with a broad medical and scientific consensus that sexual orientation is immutable. See Perry, 704 F. Supp. 2d at 966 (No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.); accord Golinski, 824 F. Supp. 2d at 986; Pedersen, 881 F. Supp. 2d at 32024. It is also consistent with the Supreme Courts recognition that sexual orientation is so fundamental to a persons identity that one ought not be forced to choose between ones sexual orientation and ones rights as an individualeven if such a choice could be made. See
Lawrence, 539 U.S. at 576-77 (recognizing that individual decisions by consenting adults concerning the intimacies of their relationships are an integral part of human freedom). Because classifications based on sexual orientation are suspect based on the factors identified in Bowen and Cleburne, they should be subject to strict scrutiny. Classifications that disadvantage a suspect class are treated as presumptively invidious and must be precisely tailored to serve a compelling government interest to pass constitutional muster. Plyler v. Doe, 457 U.S. 202, 216-17 (1982). As argued more fully in Plaintiffs Memoranudum in Support of Their Motion for Summary Judgment (Dkt #71 at 26-40), Wisconsins marriage ban is unconstitutional under any level of scrutiny. The marriage ban cannot survive heightened scrutiny because the State cannot meet its burden of demonstrating that the ban is necessary to serve a compelling governmental interest, let alone that the ban is precisely tailored so as to use the least restrictive means consistent with the attainment of that interest. Indeed, several district courts have held that substantively similar marriage bans fail even rational basis review because they bear no rational relationship to any legitimate state interest. See, e.g., Kitchen, 961 F. Supp. 2d at 1207-10;
23
Bishop v. United States ex rel Holder, 962 F. Supp. 2d at 1288-96 (N.D. Okla. 2014); Bostic v. Rainey, 2014 WL 561978, at *14-22 (E. D. Va. Feb. 13, 2014); De Leon v. Perry, 2014 WL 715741, at *14-17 (W.D. Tex. Feb. 26, 2014); DeBoer v. Snyder, 2014 WL 1100794, at *11-15 (E.D. Mich. Mar. 21, 2014). The State Defendants provide no reason to disregard these wellreasoned opinions. D. Count Four Adequately Pleads A Claim
Both on its face and as applied, Wisconsins marriage ban restricts Plaintiffs rights based on their gender. Each Plaintiff would have the right to marry his or her partner if the Plaintiff were of a different sex. Consequently, Plaintiffs own sex precludes them from marrying the individual of their choosing. A law that restricts marriage based on a persons sex is facially
discriminatory. See Kitchen, 961 F. Supp. 2d at 1196; Perry, 704 F. Supp. 2d at 996; Baehr v. Lewin, 852 P.2d 44, 64 (Haw. 1993) (Hawaii marriage statute on its face and as applied, regulates access to the marital status and its concomitant rights and benefits on the basis of the applicants sex.), affd, 950 P.2d 1234 (Haw. 1997).8 Furthermore, the marriage ban subjects Plaintiffs to sex stereotyping, which is a form of gender discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (restrictions based on sex stereotypes is discrimination on the basis of gender). Defendants argue that Plaintiffs sex discrimination claim must be dismissed because the marriage ban on its face does not create a classification based upon gender. (Br. at 27) Defendants go on to claim that the marriage ban treats men and women exactly the same and
8
Initially, Baehr was a plurality decision of two of the five judges, with a third judge concurring on different grounds, and the case was ordered remanded for trial to determine whether the state had a compelling justification for the exclusion. Before the case was remanded, however, one of the two dissenting judges was replaced, and the court then ruled that on remand the trial would be conducted consistent with the plurality opinion, which thereby became the opinion of the court. 852 P.2d at 74. 24
has nothing to do with gender discrimination. Id. Defendants argument is both superficial and wrong. Defendants assertion that the marriage ban treats men and women exactly the same, by denying the right to marry to both men (who wish to marry men) and women (who wish to marry women) equally, is no defense. This argument, made with regard to race instead of sex, was squarely rejected in Loving v. Virginia. In Loving, the State of Virginia argued that its antimiscegenation laws did not discriminate based on race because the prohibition against mixedrace marriage applied equally to both black and white citizens. 388 U.S. at 7-8. The Supreme Court held that the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. Id. at 9. See also McLaughlin v. Fla., 379 U.S. 184, 192-93 (1964) (holding that a race-related anti-cohabitation law was an unconstitutional racial classification even though the law applied equally to white and black persons). The court in Kitchen recognized that, as in Loving, the fact of equal application to both men and women does not immunize Utahs Amendment 3 [which similarly denied the validity or recognition of marriages between same-sex couples] from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex. Kitchen, 961 F. Supp. 2d at 1206.9
Loving and McLaughlin cannot be cabined on a theory that those cases addressed race, not sex. The same reasoning has clearly been applied to gender. See J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994) (striking down peremptory challenges based on gender-based assumptions as to both sexes, despite equal application of the rule as to men and women); see also Califano v. Westcott, 443 U.S. 76, 83-85 (1979) (classification can be sex-based even if the effects of its application are felt equally by men and women). Nor can the marriage ban be defended on the ground that it was not enacted with the intent to discriminate against either men or women. See Loving, 388 U.S. at 11 n.11 (holding that Virginias ban on interracial marriage was unconstitutional even assuming an even-handed state purpose to protect the integrity of all 25
Defendants further contend that the marriage ban does not violate the Equal Protection Clause because it does not draw upon stereotypes applicable only to male or female couples. (Br. at 27) But for the reason above, laws founded on sex-based stereotypes are gender
classifications, even if they apply to both sexes. As explained in Plaintiffs Brief in Support of Their Motion for Summary Judgment (at 18-20), Wisconsins marriage ban perpetuates and enforces stereotypes regarding the expected and traditional roles of men and women. Most obviously, the ban imposes the stereotype that men marry and create families with women, and women marry and create families with men. More precisely, the ban limits a persons freedom to marry by requiring that any marriage conform to this stereotype. Indeed, the stereotyping
inherent in the exclusion of same-sex couples from marriage is revealed by one of the frequently asserted justifications for such bans: that optimal parenting requires two parents of different sexes. See, e.g., Bishop v. United States ex rel Holder, 962 F. Supp. 2d at 1293-94 (N.D. Okla. 2014); Griego, 316 P.3d at 886; Kitchen, 961 F. Supps. 2d at 1210. As the Supreme Court of Iowa explained: the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotypes than anything else. Varnum, 763 N.W.2d at 899 n.26 (Iowa 2009) (emphasis added). Defendants denials notwithstanding, the marriage ban plainly imposes stereotypes based on sex. When government restricts men and women from participation in civil society and its institutions based on sex stereotypes, it does so on the basis of gender. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989). See also White v. Fleming, 522 F.2d 730, 737 (7th Cir.
races); Johnson v. California, 543 U.S. 499, 506 (2005) (holding that Californias racially neutral practice of segregating inmates by race when first incarcerated to avoid racial violence was a race classification that had to be reviewed under strict scrutiny, notwithstanding the fact that prison officials were not singling out one race for differential treatment). 26
1975) ([I]t is impermissible under the equal protection clause to classify on the basis of stereotyped assumptions concerning propensities thought to exist in some members of a given sex.); Doe by Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997) (holding that reliance upon stereotypical notions about how men and women should appear and behave reasonably suggests that a particular action . . . can be attributed to sex.), vacated and remanded on other grounds, City of Belleville v. Doe by Doe, 523 U.S. 1001 (1998). The Supreme Court has made emphatically clear that gender classifications cannot be based on or validated by fixed notions concerning the roles and abilities of males and females. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982). And in the context of parenting responsibilities, the Supreme Court has rejected the notion of any universal difference between maternal and paternal relations at every phase of a childs development. Caban v. Mohammed, 441 U.S. 380, 388-89 (1979); see also Stanley v. Illinois, 405 U.S. 645 (1972) (holding that a state law presumption that unmarried fathers were unfit parents violated Due Process and Equal Protection Clauses). While any given couple may choose to assume (and enjoy) stereotypical roles within their marriage, it is not permissible for the state to enforce conformity with traditional sex stereotypes. Price Waterhouse, 490 U.S. at 250. The marriage ban does precisely that. Defendants cite two district court cases that have failed to recognize the sex-based discrimination and sex stereotyping that is inherent in the exclusion of same-sex couples from marriage. (Br. at 27-28) But these cases are not persuasive. In Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1005 (D. Nev. 2012), which is still on appeal (see Sevcik v. Sandoval, No. 12-17668 (9th Cir. 2012)), the court recognized that the classification drawn in Nevadas marriage ban could be characterized as gender-based under the
27
Loving reciprocal-disability principle, but then concluded that for the purposes of an equal protection challenge, the distinction is definitely sexual-orientation based. Without citation to authority, the Sevcik court apparently believed that it had to choose one type of classification only. But there is no basis for this conclusion, and the marriage ban in Wisconsin classifies on the basis of sex as much as it does so on the basis of sexual orientation. In Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1098 (D. Haw. 2012), by contrast, the court did not even address Loving in considering the gender discrimination claim, and thus repeated the equal application error, holding that Hawaiis marriage ban was not a sex-based classification because the statute prohibit[ed] men and women equally from marrying a member of the same sex. V. Baker v. Nelson Does Not Foreclose Plaintiffs Claims Finally, Defendants contend that the Supreme Courts 1972 summary dismissal for want of a substantial federal question in Baker v. Nelson, 409 U.S. 810 (1972), is controlling and requires dismissal of Plaintiffs claims here. As most courts considering challenges to bans on marriage for same-sex couples have recognized in recent years, Baker has been overtaken by events and is no longer dispositive of the questions before this Court. There is no dispute that a dismissal for want of a substantial federal question is a binding decision on the merits. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Its reach, however, is
limited to the precise issues presented and necessarily decided. Mandel v. Bradley, 432 U.S. 173, 176 (1977). Summary actions . . . should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved. Id.
Moreover, even when the Supreme Court has once branded a question as unsubstantial, it does not remain[] so . . . when doctrinal developments indicate otherwise. Hicks, 422 U.S. at 344. Accord Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 288 (7th Cir. 1986) (discussing Hicks and 28
noting that [i]f the facts, issues, or law is different, then there is reason not to follow the summary action); Mandel, 432 U.S. at 180 (Brennan, J. concurring) (clarifying Hicks and explaining that appropriate, but not necessarily conclusive, weight is to be given this Courts summary dispositions) (internal quotation marks omitted). Here, a number of major doctrinal developments have occurred since 1972 that make reliance on Baker inappropriate. First, the year after Baker was decided,10 the Supreme Court held that classifications based on sex must, like race and national origin, be subjected to heightened judicial scrutiny. See Frontiero v. Richardson, 411 U.S. 677, 688 (1973); Craig v. Boren, 429 U.S. 190, 218 (1976) (Rehnquist, J. dissenting) (identifying the Courts scrutiny of sex-based classifications as intermediate). Second, the Court in Romer v. Evans, 517 U.S. 620 (1996), held that a Colorado state constitutional amendment imposing a disadvantage on gay and lesbian people and born of animosity lacked any rational relation to a legitimate governmental purpose. Id. at 634-35 (We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.). Third, the Supreme Court decided in Lawrence v. Texas, 539 U.S. 558, 567 (2003), that two adults of the same sex were free under the Constitution to engage in intimate sexual conduct in the confines of their homes and their own private lives and still retain their dignity as free persons. The Court found that [w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more
10
The lower courts holding in Baker appeared to rest on the premise that the marriage ban was a classification based on sex. See Baker v. Nelson, 191 N.W.2d 185, 187 (1971) (distinguishing Loving v. Virginia, 381 U.S. 1 (1967), and holding that in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex). 29
enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Id. Further, Justice OConnor in concurrence found that for purposes of rational basis review of Texass anti-sodomy law, [m]oral disapproval of this group [i.e. gays and lesbians], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. Id. at 582. Finally, the Supreme Court held last year in Windsor that the federal government could not treat the state-sanctioned marriages of same-sex couples differently from the state-sanctioned marriages of different-sex couples for purposes of federal protections and obligations based on marital status. 133 S. Ct. at 2694. The Court found that this differential treatment demeans the couple, whose moral and sexual choices the Constitution protects. Id. The doctrinal developments sketched above are dramatic, and in their light the summary dismissal handed down 42 years ago in Baker simply cannot bind this Court. This shift is the reason that courts that have considered the matter recently have concluded that Baker no longer has force. See, e.g., Windsor, 699 F.3d at 178-79 (2d Cir. 2012) (Even if Baker might have had resonance for Windsors case in 1971, it does not today. . . . In the forty years after Baker, there have been manifold changes to the Supreme Courts equal protection jurisprudence.), affd 133 S. Ct. 2675 (2013); Kitchen, 961 F. Supp. 2d at 1194-95 (D. Utah 2013) ([S]everal doctrinal developments in the Courts analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbians demonstrate that the Courts summary dismissal in Baker has little if any precedential effect today.); Bishop, 962 F. Supp. 2d at 1276 (N.D. Okla. 2014) ([T]here have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question.); Bostic v. Rainey, 2014 WL 561978, at *10 (D. Va. Feb. 13, 2014) (This Court concludes that doctrinal
30
developments since 1971 compel the conclusion that Baker is no longer binding.); McGee v. Cole, 2014 WL 321122, at *8-10 (S.D. W. Va. Jan. 29, 2014); DeBoer v. Snyder, 2014 WL 1100794, at *15 n.6 (E.D. Mich. Mar. 21, 2014) (quoting Kitchen); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (Doctrinal developments show it is not reasonable to conclude the questions presented in the Baker jurisdictional statement would still be viewed by the Supreme Court as unsubstantial.), overruled on other grounds, Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006); Garden State Equality v. Dow, 2012 WL 540608, at *4 (N.J. Super. Ct. Feb. 21, 2012) (Baker was decided forty years ago and both doctrinal and societal developments since Baker indicate that it has sustained serious erosion.). In addition to the above changes in doctrine, Baker does not control here because this case does not involve the precise issues presented and necessarily decided in Baker. Mandel, 432 U.S. at 176. The Minnesota law at issue in Baker lacked an express statutory prohibition against same-sex marriages. Baker, 191 N.W.2d at 185. Here, Wisconsins marriage ban clearly, unequivocally, and intentionally excludes same-sex couples from marriage and refuses to recognize valid marriages between people of the same sex entered into in other jurisdictions. A law of this kind raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. Romer, 517 U.S. at 624. The Baker court did not have occasion to consider the issues raised by such a law, and thus does not preclude this Court from doing so now. Defendants cite two cases in which courts have found Baker to control, but those authorities are wrongly decided. To begin with, all of Defendants authorities pre-date the Supreme Courts decision in Windsor, which the Kitchen court described as highly relevant and . . . therefore a significant doctrinal development. Kitchen, 961 F. Supp. 2d at 1196. Without
31
consideration of Windsor, any embrace of Baker is unpersuasive. Second, the cases cited by the Defendants involve either no consideration of doctrinal developments at all, see Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1003-04 (D. Nev. 2012), or impose an inappropriate requirement that Baker be directly repudiated. See, e.g., Massachusetts v. Dept of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent.); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1085 (D. Haw. 2012) (The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts with any reason to believe that the holding is invalid.). Third, Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 870-71 (8th Cir. 2006), is not a marriage case, and does not rely on Baker at all in its actual analysis, but only mentions the case for the first time in passingin the conclusion. Baker v. Nelson simply has no purchase here, and is no basis for dismissing Plaintiffs well-pled allegations that the Wisconsin marriage ban violates the United States Constitution. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court dismiss Defendants King and Chisholm, but otherwise deny Defendants motion.
Dated: April 10, 2014
By: /s Gretchen E. Helfrich Counsel for Plaintiffs
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JOHN A. KNIGHT American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 (312) 201-9740 jaknight@aclu.org LAURENCE J. DUPUIS SBN: 1029261 American Civil Liberties Union of Wisconsin Foundation 207 E. Buffalo Street, Suite 325 Milwaukee, Wisconsin 53202 (414) 272-4032 ldupuis@aclu-wi.org * admitted pro hac vice
JAMES D. ESSEKS* American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project 125 Broad Street New York, New York 10004 (212) 549-2623 jesseks@aclu.org HANS J. GERMANN* GRETCHEN E. HELFRICH* FRANK DICKERSON* Mayer Brown LLP 71 South Wacker Drive Chicago, Illinois 60606-4637 (312) 782-0600 hgermann@mayerbrown.com ghelfrich@mayerbrown.com fdickerson@mayerbrown.com
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PLAINTIFFS RESPONSE TO STATE DEFENDANTS MOTION TO DISMISS

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Count Four Adequately Pleads A Claim.................................................. 24

Baker v. Nelson Does Not Foreclose Plaintiffs Claims ...................................... 28

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(citation and quotation marks omitted) (emphasis added).

The Seventh Circuits view is

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Dated: April 10, 2014

By: /s Gretchen E. Helfrich Counsel for Plaintiffs

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