1817167

DISTRICT COURT, CITY AND COUNTY OF DENVER,

COLORADO
1437 Bannock Street
Denver, Colorado 80202





Plaintiffs:
G. Kristian McDaniel-Miccio and Nan McDaniel-Miccio,
Sandra Abbott and Amy Smart, Wendy Alfredsen and
Michelle Alfredsen, Kevin Bemis and Kyle Bemis, Tommy
Craig and Joshua Wells, James Davis and Christopher
Massey, Sara Knickerbocker and Jessica Ryann Peyton, Jodi
Lupien and Kathleen Porter, and Tracey MacDermott and
Heather Shockey

Defendants:
State of Colorado; John W. Hickenlooper, Jr., in his official
capacity as Governor for the state of Colorado; Debra
Johnson, in her official capacity as Clerk and Recorder for the
City and County of Denver.














COURT USE ONLY
Attorneys for Plaintiffs:
John M. McHugh, #45456; jmchugh@rplaw.com
Amy R. Gray, #40814; agray@rplaw.com
Michael Kotlarczyk, # 43250; mkotlarczyk@rplaw.com
Tess Hand-Bender, #42681; thandbender@rplaw.com
Jason M. Lynch, #39130; jlynch@rplaw.com
REILLY POZNER LLP
1900 Sixteenth Street, Suite 1700
Denver, Colorado 80202
Phone: (303) 893-6100; Fax: (303) 893-6110
Marcus Lock, #33048; mlock@lawoftherockies.com
LAW OF THE ROCKIES
525 North Main St.
Gunnison, Colorado 81230
Phone: (970) 641-1903; Fax: (970) 641-1943
Ann Gushurst, #29187; ann@ggfamilylaw.com
GUTTERMAN GRIFFITHS PC
10375 Park Meadows Blvd., Suite 520
Littleton, Colorado 80124
Phone: (303) 858-8090; Fax: (303) 858-8181
Case No. 14-CV-30731

Division/Courtroom: 376
BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
i

TABLE OF CONTENTS
INTRODUCTION ............................................................................................................................. 1
STATEMENT OF MATERIAL AND UNDISPUTED FACTS ....................................................... 3
ARGUMENT ..................................................................................................................................... 5
I. The Marriage Bans Harm Same-Sex Couples and Their Children ........................................ 5
A. The Marriage Bans Harm the Plaintiffs and Other Same-Sex Couples ..................... 5
B. The Marriage Bans Harm Children............................................................................ 7
II. The Supreme Courts Decision in Windsor Renders Colorados Marriage Bans
Unconstitutional ..................................................................................................................... 8
A. Colorados Marriage Bans Are Unconstitutional Under Windsor Because
They Are Based on Prejudice .................................................................................... 8
B. The Recognition Ban is Invalid under Windsor because Colorado
Dramatically Altered Its Inter-State Relationships to Discriminate Against
Same-Sex Couples ................................................................................................... 11
C. Since Windsor, Court Have Unanimously Found Marriage Bans
Unconstitutional ....................................................................................................... 12
III. Colorados Marriage Bans Deny Plaintiffs Equal Protection of the Laws .......................... 14
A. Colorados Marriage Bans Fail Under Heightened Scrutiny ................................... 15
1. Colorados Marriage Bans Discriminate on the Basis of Sexual
Orientation and Are Subject to Heightened Scrutiny .................................. 15
2. Colorados Celebration Ban Discriminates on the Basis of Gender and
is Subject to Heightened Scrutiny ................................................................ 20
3. The State Cannot Meet its Burden of Showing an Important Purpose
Justifying the Marriage Ban ......................................................................... 20
B. Colorados Marriage Bans Fail Under Rational Basis Review ............................... 21
1. No Rational Connection Exists Between the Marriage Ban and Any
Conceivable Justification ............................................................................. 22
IV. The Marriage Bans Violate Plaintiffs Due Process Rights ................................................. 27
ii

A. Colorados Celebration Ban Denies Plaintiffs Their Fundamental Right to
Marry........................................................................................................................ 28
1. Marriage Is a Fundamental Right to Marry the Person of Your Choosing .. 29
2. Plaintiffs Seek Nothing More than Access to the Same Right Already
Held by Opposite-Sex Couples in Colorado ................................................ 30
B. Colorados Recognition Ban Denies Plaintiffs Their Right to Remain
Married ..................................................................................................................... 33
C. The Recognition Ban Denies Same-Sex Couples their Fundamental Right to
Travel ....................................................................................................................... 34
D. Colorados Marriage Bans Are Not Necessary to Effectuate a Compelling
State Interest............................................................................................................. 35
V. Colorados Civil Union Law Is Inadequate And Fails to Cure the Constitutional
Infirmities of the Marriage Bans .......................................................................................... 36
A. Civil Unions Are A Separate, Second-Class Institution .......................................... 36
B. Civil Unions Do Not Confer the Same Benefits and Protections as Marriage ........ 39
1. Plaintiffs Do Not Receive the Same Benefits and Protections of
State Law ..................................................................................................... 39
2. Plaintiffs Do Not Receive the Same Benefits and Protections of
Federal Law ................................................................................................. 41
C. Even If Civil Unions Were Equal, Which They Are Not, Such Separate
Status Is Not Permissible ......................................................................................... 42
CONCLUSION ................................................................................................................................ 44


iii

TABLE OF AUTHORITIES

Cases
Appling v. Doyle, 826 N.W.2d 666 (Wis. App. 2012) ..................................................................... 42
Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898 (1986) .................................................................... 34
Baehr v. Lewin, 852 P.2d 44 ............................................................................................................ 32
Baehr v. Miike, 1996 WL 694235, aff'd 950 P.2d 1234 (Haw. 1997) ............................................. 14
Baker v. State, 744 A.2d 864 (Vt. 1999) .......................................................................................... 39
Baskin v. Bogan, --F.2d--, 2014 WL 1568884 (S.D. Ind. April 18, 2014) ...................................... 12
Ben-Shalom v. Marsh, 881 F.2d 454(7th Cir. 1989), ....................................................................... 16
Bishop v. United States ex rel. Holder, 17, 1252 (N.D. Okla. 2014) .................................. 13, 21, 23
Boddie v. Connecticut, 401 U.S. 371 (1971) ................................................................................... 28
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014)............................................................ passim
Bourke v. Beshar, -- F. Supp. 2d -- , 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ................... 13, 21
Bowen v. Gilliard, 483 U.S. 587 (1987) ..................................................................................... 16, 17
Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954) ............................. 42, 43
City of Florence v. Pepper, 145 P.3d 654 (Colo. 2006) .................................................................. 22
Clark v. Jeter, 486 U.S. 456 (1988) ................................................................................................. 15
Cleburne, 473 U.S. at 440 .................................................................................................... 19, 21, 23
Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974) ............................................................... 28
Craig v. Boren, 429 U.S. 190 (1976) ............................................................................................... 20
De Leon v. Perry, --- F. Supp. 2d ---, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) ............. passim
DeBoer v. Snyder, -- F. Supp. 2d -- , 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) ............ passim
Dunn v. Blumstein, 405 U.S. 330 (1972) ............................................................................. 28, 34, 35
iv

Engquist v. Oregon Dep't of Agric., 553 U.S. 591 (2008) ............................................................... 14
Evans v. Romer, 882 P.2d 1335(Colo. 1994) ( .......................................................................... 28, 36
Frontiero v. Richardson, 411 U.S. 677 (1973) .......................................................................... 17, 20
Gallegos v. Phipps, 779 P.2d 856 (Colo. 1989)............................................................................... 22
Garden State Equality v. Dow, 82 A.3d 336 (N.J. 2013) .................................................... 13, 37, 41
Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010) ......................................... 8
Golinski v. United States Office of Personnel Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) . passim
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ................................................. 30
Griego v. Oliver, 316 P.3d 865 (N.M. 2013) ............................................................................ passim
Griswold v. Connecticut, 381 U.S. 479 (1965) ................................................................................ 28
Harman v. Forssenius, 380 U.S. 528 (1965) ................................................................................... 34
HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879 (Colo. 2002) .......................................... 22
Heller v. Doe, 509 U.S. 312 (1993) ................................................................................................. 22
Heninger v. Charnes, 200 Colo. 194 (1980) .................................................................................... 34
Henry v. Himes, -- F. Supp. 2d --, 2014 WL 1418395 (S.D. Ohio April 14, 2014) ................. passim
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ............................................................. 18
Higgs v. W. Landscaping & Sprinkler Sys., Inc., 804 P.2d 161 (Colo. 1991) ................................. 21
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563(9th Cir. 1990), ............... 16
Hodgson v. Minnesota, 497 U.S 417 (1990) .................................................................................... 29
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ........................................................................ 13, 14
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ................................................................... 15, 17
In re Marriage Cases, 183 P.3d 384 (Cal. 2008)...................................................................... passim
In re Parental Responsibilities of A.R.L., 318 P.3d 581 (Colo. App. 2013) ...................................... 8
Indus. Claim Appeals Office of State of Colo. v. Romero, 912 P.2d 62 (Colo. 1996) ..................... 22
v

Jones v. Helms, 452 U.S. 412 (1981) ............................................................................................... 34
Karouni v. Gonzales, 399 F. 3d 1163 (9th Cir. 2005) ..................................................................... 18
Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) ............................................ passim
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ....................................................... passim
Lawrence v. Texas, 539 U.S. 558 (2003) ....................................................................... 18, 29, 23, 33
Lee v. Orr, -- F. Supp. 2d --, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) ....................................... 13
Lewis v. Harris, 908 A.2d 196 (N.J. 2006) ...................................................................................... 39
Loving v. Virginia, 388 U.S. 1 (1967)....................................................................................... passim
Massachusetts v. U.S. Dep't. of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012) ............ 23, 26
Meyer v. Nebraska, 262 U.S. 390 (1923) ........................................................................................ 29
Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) .................................................................. 20
Naim v. Naim, 87 S.E.2d 749 (Va. 1955) ........................................................................................ 31
Obergerfell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) ............................................. passim
Payne v. Payne, 214 P.2d 495 (Colo. 1950) .................................................................................... 11
Pederson v. Office of Personnel Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012).................. 15, 17, 19
Pepper v. Indus. Claim Appeals Office of State, 131 P.3d 1137 (Colo. App. 2005) ....................... 22
Perez v. Sharp, 198 P.2d 17 (Cal. 1948) .......................................................................................... 32
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ......................................................................... 13, 37
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ............................................ passim
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ....................................................... 28
Plessy v. Ferguson, 163 U.S. 537 (1896) .............................................................................. 1, 14, 42
Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................. 28
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ........................................................................... 29, 33
Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994) ............................................... 35
vi

Rodriguez v. Schutt, 914 P.2d 921 (Colo. 1996) .............................................................................. 21
Romer v. Evans, 517 U.S. 620 (1996)........................................................................................ 10, 21
SECSYS, LLC v. Vigil, 666 F.3d 678 (10th Cir. 2012) .................................................................... 14
Senate, 802 N.E.2d 565 (Mass. 2004) ....................................................................................... 38, 42
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) .......................................................... 19, 39
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ....................................................... 29
Smithkline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ................................. 8, 16
Sweatt v. Painter, 339 U.S. 629 (1950) ........................................................................................... 43
Tanco v. Haslam, -- F. Supp. 2d -- , 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) ............... 13, 21
Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) ....................................................................... 18
Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (2001) .............................................................................. 20
Turner v. Safley, 482 U.S. 78 (1987) ......................................................................................... 28, 31
United States v. Virginia, 518 U.S. 515 (1996) ......................................................................... 20, 43
United States v. Windsor, 133 S.Ct. 2675 (2013) ..................................................................... passim
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ............................................................ 14, 15, 17, 25
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ............................................................ 27
Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) ....................................................................... 17
Williams v. North Carolina, 317 U.S. 287 (1942) ........................................................................... 33
Windsor v. United States, 699 F.3d 169(2d Cir. 2012), ....................................................... 15, 16, 17
Zablocki v. Redhail, 434 U.S. 374 ....................................................................................... 28, 29, 31
Statutes
17 U.S.C. 101 ............................................................................................................................ 6, 41
38 U.S.C. 103(c) ....................................................................................................................... 6, 41
42 U.S.C. 416(h)(1)(A)(i) ......................................................................................................... 6, 41
vii

C.R.S 14-2-104 ............................................................................................................................... 4
C.R.S. 14-15-102 .......................................................................................................................... 36
C.R.S. 14-15-107(4) ...................................................................................................................... 24
C.R.S. 14-15-116 .......................................................................................................................... 12
C.R.S. 14-15-117 .......................................................................................................................... 40
C.R.S. 39-22-107 .......................................................................................................................... 40
C.R.S. 14-15-103(4) .................................................................................................................... 41
C.R.S. 14-15-107(1) .............................................................................................................. 25, 26
C.R.S. 14-15-103(5) ......................................................................................................................... 37
C.R.S. 14-15-103(6) ......................................................................................................................... 37
C.R.S. Ch. 90 ................................................................................................................................... 33
Cal. Const. art I ................................................................................................................................ 14
Colo. Const. art. II........................................................................................................................ 4, 20
U.S. Const. amend I ......................................................................................................................... 23
U.S. Const. amend. XIV ............................................................................................................ 14, 28
Regulations
29 C.F.R. 825.122(b) ................................................................................................................ 6, 41


1

INTRODUCTION
The Constitution of the United States neither knows nor tolerates classes among citizens.
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Colorado law, however
creates two classes of citizens: those free to marry the person they love and those denied that
fundamental right. In 2013, Colorado enacted the Colorado Civil Union Act, creating a separate-
and-unequal marriage-like institution for same-sex couples. Far from curing the ills of
Colorados marriage bans, the Act multiplied the disparate classes of couples in Colorado by
creating a new legal relationship status. In addition, the Act reaffirmed the States insistence on
denying a class of its citizens equal protection of the laws and the fundamental right to marry.
Colorado bans same-sex marriages in two ways. First, Colorado law prevents county
clerks from issuing marriage licenses to same sex couples (the Celebration Ban). Second,
Colorado refuses to recognize same-sex marriages legally entered in other jurisdictions (the
Recognition Ban) (collectively the Marriage Bans). The Marriage Bans actively harm same-
sex couples and their children both psychologically and financially. The Marriage Bans stigmatize
and humiliate same-sex couples and their children by deeming their relationships and families
unworthy of the same respect and status offered to opposite-sex couples. Same-sex couples are
also denied access to federal and state benefits, including the right to file tax returns as a married
couple, which can cost a couple thousands of dollars. Further, same-sex couples incur significant
expenses to execute legal documents that ensure they are protected in times of sickness, that their
children are cared for, and that their wishes are carried out after their deaths, protections
unambiguously provided to opposite-sex married couples.
The Supreme Courts recent ruling in United States v. Windsor renders Colorados
Marriage Bans unconstitutional. Like the federal Defense of Marriage Act (DOMA), Colorados
2

Marriage Bans were enacted solely for the purpose of harming same sex couples and in enacting
them, Colorado dramatically altered its laws governing the recognition of marriages performed in
other states in order to target and exclude same-sex couples. Since Windsor, every court to
evaluate marriage bans like Colorados has found them unconstitutional, including decisions in
eleven federal cases and two state supreme court cases.
The Marriage Bans also violate the Equal Protection Clause because they discriminate
against same sex couples on the basis of their sexual orientation and gender. Because they single
out committed gay and lesbian couples for inferior treatment, the Marriage Bans must be evaluated
under heightened scrutiny requiring the State to justify the discrimination with a legitimate and
important purpose. Even if heightened scrutiny did not apply, the Bans must still be struck down
because they are not rationally related to a legitimate governmental end.
Similarly, the Marriage Bans violate the Due Process Clause by infringing on same-sex
couples rights to marry, to remain married, and to travel. Because the Marriage Bans are not
necessary to effectuate a compelling state interest, they are an unconstitutional infringements on
these rights.
Colorado cannot cure these constitutional deficiencies by offering same-sex couples a
second-class and unequal skim-milk alternative. While the Civil Union Act is an attempt to
make civil unions equal to marriage, there remain considerable and substantial differences between
the two designations. There is no question that civil marriage is a widely recognized and
respected social and legal institution for two adults who have committed to building a life together.
Civil unions, on the other hand, do not have the same societal recognition or status. Not
surprisingly, every court that has analyzed whether marriage equivalents such as civil unions are
equal in social status to marriage has found that they are not. Nor do civil unions confer to same-
3

sex couples the same benefits and protections that are available to opposite-sex couples through
marriage. Colorado forbids couples in a civil union who are not married in another state from
filing their state tax returns jointly. These same couples are also denied the benefits and
protections of over 1,000 federal laws simply because Colorado withholds the word marriage
from their relationship. Even same-sex couples who are legally married in another state lose
certain federal benefits by living in Colorado.
The United States Constitution does not permit Colorado to withhold from same-sex
couples the dignity, rights, and benefits associated with marriage. Colorados attempt to substitute
a relationship status that implies inferiority in civil society cannot remedy the constitutional
infirmity inherent in Colorados denial of fundamental rights to a class of its citizens. With
marriage, as with public education, separate is inherently unequal.
STATEMENT OF MATERIAL AND UNDISPUTED FACTS
1

The material facts necessary for resolution of this dispute are simple and not disputed. The
State of Colorado has enacted ordinances and policies that extend protections and benefits based
upon, or otherwise recognize, marital status for opposite-sex couples. SSF 15. In 2000, the
Colorado legislature amended the Uniform Marriage Act to provide, in relevant parts:
(1) . . . [A] marriage is valid in this state if: (b) It is only between one man and one
woman. (2) Notwithstanding the provision of section 14-2-112, any marriage
contracted within or outside this state that does not satisfy paragraph (b) of
subsection (1) of this section shall not be recognized as valid in this state.
C.R.S 14-2-104. Relying on this provision, Colorado does not recognize same-sex marriages.
SSF 15. Despite already statutorily banning same-sex marriages, Colorado amended its
Constitution in 2006 to provide: Only a union of one man and one woman shall be valid or

1
The parties complete Statement of Stipulated Facts (the SSF) is attached as Appendix A. The Plaintiffs complete
Statement of Undisputed Facts (the SUF) is attached as Appendix B.
4

recognized as a marriage in this state. Colo. Const. art. II, 31 (Amendment 43). As a result
of these statutory and constitutional amendments, [t]he State of Colorado does not recognize
same-sex marriages, including legal marriages performed in other states and countries. SSF
10, 15. Defendant Governor Hickenlooper is responsible for upholding and ensuring
compliance with these laws. See id. 19. Defendant Debra Johnson, as Clerk and Recorder of the
City and County of Denver, is charged with the duty of issuing marriage licenses upon receipt of a
completed marriage application, payment of the applicable fee, and verification that the marriage is
not prohibited by law. Id. 2.
Plaintiffs Tracey MacDermott and Heather Shockey, Wendy and Michelle Alfredsen,
Tommy Craig and Joshua Wells, Jodi Lupien and Kathleen Porter, and Christopher Massey and
James Davis (the Unmarried Plaintiffs) are in committed same-sex relationships, reside in
Colorado and desire to enter into marriages that are recognized as valid under Colorado law. Id.
1. The Unmarried Plaintiffs meet all of the statutory requirements for marriage except that they
are same-sex couples. Id. 3. They each completed and signed applications for marriage licenses
and are able to pay the applicable fee. Id. 1. The Unmarried Plaintiffs appeared at the Denver
Office of the Clerk and Recorder to apply for marriage licenses, but the authorized deputy declined
to issue them marriage licenses because they are same-sex couples. Id. 6-7.
Plaintiffs Amy Smart and Sandra Abbott, Kevin and Kyle Bemis, Kris and Nan McDaniel-
Miccio, and Sara Knickerbocker and Ryann Peyton (the Married Plaintiffs) are also in
committed same-sex relationships and reside in Colorado. The Married Plaintiffs were legally
married in another state and desire to have their marriages recognized as valid under Colorado law.
Id. 8. The State of Colorado does not recognize these marriages, or any same-sex marriages
5

performed in other states and countries. Id. 10. By operation of law, the state of Colorado deems
the Married Plaintiffs to be in civil unions. Id. 9.
ARGUMENT
I. The Marriage Bans Harm Same-Sex Couples and Their Children
A. The Marriage Bans Harm the Plaintiffs and Other Same-Sex Couples
The harms experienced by same-sex couples in Colorado as a result of their inability to
marry or have their marriages recognized cannot be disputed. To apply the Supreme Courts
reasoning in Windsor, Colorados Marriage Bans tell[] those couples, and all the world, that their
otherwise valid [relationships] are unworthy of [state] recognition. This places same-sex couples
in an unstable position of being in a second-tier [relationship]. The differentiation demeans the
couple, whose moral and sexual choices the Constitution protects. See United States v. Windsor,
133 S.Ct. 2675, 2694 (2013).
The Plaintiffs inability to be legally married in Colorado denies them certain rights and
benefits that validly married opposite-sex couples enjoy. For instance, those couples that are not
married in another state, including couples in a Colorado civil union, cannot enjoy the over 1,100
federal rights implicated by marital status, including the ability to file joint federal tax returns,
spousal eligibility for immigration purposes, and federal employee benefits. See SUF 86. Those
couples in a Colorado civil union but not legally married in another state cannot jointly file their
Colorado state tax returns. SUF 87. The Plaintiffs have incurred significant expenses to ensure
protections automatically granted to opposite-sex married couples, e.g., execution of legal
documents that ensure they are protected in times of sickness, that their children are cared for, and
that their wishes are carried out after their deaths. See SUF 18a-c, 27c-e, 31a, 34c-d, 38, 41b-c,
58a-d, 62-64, 65b, 70a, 79a-d. When they leave the state of Colorado, the Plaintiffs are careful to
6

take extra precautions to ensure that their relationships are honored and protected, precautions that
couples lawfully married in their home state do not have to undertake. See SUF 18a, 27c-d, 31,
34d, 41b, 58a-c, 65b, 70d, 79a-d.
Colorados Marriage Bans also bar Plaintiffs from receiving certain federal protections that
are available only to couples whose marriages are legally recognized by their home state. For
example, a same-sex spouse in Colorado cannot take time off work to care for a sick spouse under
the Family Medical Leave Act. See SUF 63, 65b; 29 C.F.R. 825.122(b). They also do not
have the rights of a widow or widower under the Copyright Act. 17 U.S.C. 101 (defining
widow and widower by the law of domicile at the time of the spouses death). A same-sex
spouse in Colorado may be denied access to a spouses social security benefits. 42 U.S.C.
416(h)(1)(A)(i). At least one veteran of the United States Army was denied benefits by the
United States Department of Veterans Affairs because her Iowa same-sex marriage is not
recognized as a marriage in Colorado. 38 U.S.C. 103(c) (In determining whether or not a
person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of
all laws administered by the Secretary according to the law of the place where the parties resided at
the time of the marriage or the law of the place where the parties resided when the right to benefits
accrued.).
But the harm that the Plaintiffs experience goes far beyond financial damage and the loss of
particular legal rights. Plaintiffs are considered inferior and unworthy under Colorado law as well.
Plaintiffs feel this stigmatization and humiliation on a daily basis. See SUF 27a, 41a, 51, 65a,
70c, 74, 83. All of the Plaintiffs have been denied the joy of celebrating their legal marriages in
the state that they call home. See SUF 9-10. They face constant uncertainty as to how the State
will treat their relationships with each other and with their children. See SUF 82-83. Although
7

Colorado offers these couples something more than it did a year ago, civil unions are not the same
legal relationship as marriage under Colorado law. See SUF 11; C.R.S. 14-15-103(1), (4)
(separately defining civil union and marriage). Civil unions are not equal to marriages in
social recognition, tradition, or status. See SUF 1, 4, 5; infra V.A. Those Plaintiff couples in
civil unions struggle to explain to colleagues, friends, and family what that legal status means. See
SUF 20, 34a-b, 41a, 65a. As the Supreme Court held in Windsor, marriage, and only
marriage, confers a dignity and status of immense import. See 133 S.Ct. at 2692.
B. The Marriage Bans Harm Children
In addition to harming the Plaintiffs themselves, the Marriage Bans cause significant
damage to the Plaintiffs and other same-sex couples children. See De Leon v. Perry, --- F. Supp.
2d ---, 2014 WL 715741, at *14 (W.D. Tex. Feb. 26, 2014) (Texas marriage ban causes needless
stigmatization and humiliation for children being raised by the loving same-sex couples being
targeted). Marriage bans like Colorados humiliate tens of thousands of children now being
raised by same-sex couples. See Windsor, 133 S.Ct. at 2694. [N]eedlessly stigmatizing and
humiliating children who are being raised by the loving couples targeted by [a states] Marriage
Laws betrays the states interest in the welfare of its children because it results in needlessly
depriving the thousands of children being raised by same-sex couples . . . the protection, the
stability, the recognition and the legitimacy that marriage conveys. Bostic v. Rainey, 970 F. Supp.
2d 456 (E.D. Va. 2014). The only effect [marriage bans] have on childrens well-being is
harming the children of same-sex couples who are denied the protection and stability of having
parents who are legally married. Obergerfell v. Wymyslo, 962 F. Supp. 2d 968, 994-95 (S.D.
Ohio 2013). Denying same-sex couples the right to marry also prevents children of same-sex
couples from enjoying the immeasurable advantages that flow from the assurance of a stable
8

family structure when afforded equal recognition under federal law. Gill v. Office of Personnel
Mgmt., 699 F. Supp. 2d 374, 389 (D. Mass. 2010) (citation, quotation omitted). Colorado courts
have recognized the same. See In re Parental Responsibilities of A.R.L., 318 P.3d 581, 587 (Colo.
App. 2013) (The prerogative of a child to claim the love and support of two parents does not
evaporate simply because the parents are the same sex. It applies to all children, regardless of
whether they were conceived during a heterosexual or same-sex relationship.).
The experience of Plaintiffs children is no different. They are members of families that
are manifestly different in the eyes of the law than the families of their peers. See SUF 83. The
Plaintiffs who are parents have struggled and will struggle to explain to their children why they
cannot be married like other moms and dadswhy they have been relegated to a second status
instead. See SUF 85. They legitimately worry that their inability to be married in Colorado not
only confuses and humiliates their children, but exposes them to shame and ridicule and may
permanently affect the hearts and minds of their children as they become adults. See SUF __.
II. The Supreme Courts Decision in Windsor Renders Colorados Marriage Bans
Unconstitutional
A. Colorados Marriage Bans Are Unconstitutional Under Windsor Because They Are
Based on Prejudice
The Constitutional legitimacy of Colorados Marriage Bans is resolved by the Supreme
Courts recent decision in Windsor. As the Ninth Circuit explained, Windsor refuses to tolerate
the imposition of a second-class status on gays and lesbians. Smithkline Beecham Corp. v. Abbott
Labs., 740 F.3d 471, 482 (9th Cir. 2014). In Windsor, the Supreme Court considered the
constitutionality of a Federal recognition ban, and concluded that the ban injure[d],
stigma[tized], demean[ed], and degrade[d] same sex couples, treating their relationships as
second-class, second-tier, and unworthy of [] recognition. 133 S. Ct. at 2692-94, 2695-96.
9

DOMA could not withstand Constitutional scrutiny because it instructed not only government
officials but indeed all persons with whom same-sex couples interact, including their own
children, that their marriage is less worthy than the marriages of others. Id. at 2696. Holding that
this discrimination[] of an unusual character . . . require[d] careful consideration, the Court
found that the State could demonstrate no legitimate purpose that could overcome the
discriminatory purpose and effect of the Federal marriage ban and, accordingly, struck it down. Id.
at 2692, 2696.
Application of Windsor to Colorados Marriage Bans requires the same result. In assessing
the validity of DOMA, the Court began by examining the laws design, purpose, and effect. Id.
at 2689. The design, purpose, and effect of the Marriage Bans is identical to DOMAsthey are
designed to deprive same sex couples full protection and benefit of the law and of social
recognition, their purpose is to treat those relationships as second-class, second-tier, and
unworthy of [] recognition, and their effect is to injure, stigmatize, demean, and degrade
same sex couples. See id. at 2692-96. Voters considering Amendment 43 were told the
Amendment was necessary to avoid court rulings that expand marriage beyond one man and one
woman in Colorado, and were advised of the list of benefits and rights accorded married couples
that would be denied to same sex couples. See McHugh Decl. Ex. 13: Colo. Leg. Council, Colo.
Blue Book, Amend. 43: Marriage 13 (2006) (the Amendment 43 Blue Book). This
Constitutional amendment was also adopted even though the legislature had already enacted a
statutory provision with the identical effect. This historic fact evidences a clear intent to ensure
that gay and lesbian Coloradans be preemptively denied rights they may have already had under
the Constitution, and might formally be granted by the Colorado courts. See Kitchen v. Herbert,
10

961 F. Supp. 2d 1181, 1215 (D. Utah 2013) (noting that similar historical context for Utah
marriage ban suggested discrimination of an unusual character).
The State has all but admitted that the sole purpose and effect of the Celebration Ban is
to withhold the word marriage, and its attendant dignity and status of immense import, Windsor,
133 S. Ct. at 2692, 2693, and access to federal benefits available to married couples, from same-
sex couples only. In its Answer, the State asserted as an affirmative defense that Colorados Civil
Union Act provides same-sex couples, including same-sex couples who were married out-of-state,
the opportunity to obtain the benefits, protections, and responsibilities afforded by Colorado law to
opposite-sex couples. States Ans. at 12 (emphasis added). While the States assertion is wrong,
see infra at VI, its belief nonetheless confirms that the only purpose of the Celebration Ban is to
withhold the word marriage from same-sex couples and impose inequality, not for other
reasons like governmental efficiency. Windsor, 133 S. Ct. at 2694.
The effectiveness of Colorados Marriage Bans in carrying out their intent to harm same
sex couples and deprive them of various rights accorded to heterosexual couples is demonstrated
by the injuries to the Plaintiffs in this case. See supra I. Like DOMA, the Bans avowed
purpose and practical effect [is] to impose a disadvantage, a separate status, and so a stigma upon
all who [desire to] enter into same-sex marriages . . . . Windsor, 133 S. Ct. at 2693. Because the
Bans principal purpose is to impose inequality, it cannot withstand Constitutional scrutiny.
Id. at 2694; see also Romer v. Evans, 517 U.S. 620, 632 (1996) (striking down Colorado
Constitutional amendment where it had the peculiar property of imposing a broad and
undifferentiated disability on a single named group, an exceptional and . . . invalid form of
legislation.).
11

B. The Recognition Ban is Invalid under Windsor because Colorado Dramatically
Altered Its Inter-State Relationships to Discriminate Against Same-Sex Couples
Opposite-sex couples who are married in California, Connecticut, Delaware, Hawaii,
Illinois (Cook County), Iowa, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New
Jersey, New Mexico, New York, Rhode Island, Utah, Vermont, Washington, Washington, D.C.,
Argentina, Belgium, Brazil, Canada, Denmark, England, France, Iceland, Mexico City, the
Mexican states of Yucatan, Quintana Roo, Oaxaca, Colima, Chihuahua, Jalisco, and Guanajuato,
the Netherlands, Norway, Portugal, Spain, South Africa, Sweden, or Wales have those marriages
treated as valid marriages by the state of Colorado. See Payne v. Payne, 214 P.2d 495, 497 (Colo.
1950) ([W]e have repeatedly held that a marriage contracted in a jurisdiction other than Colorado,
which was valid under the laws of the jurisdiction in which it was performed, is a valid
marriage.). Under the Recognition Ban, however, same-sex couples legally married in the exact
same states and countries have their marital status dissolved and replaced with civil unions upon
entry to Colorado. C.R.S. 14-15-116. By operation of law alone, Colorado strips them of certain
legal rights and protections as well as the dignity and status of immense import conferred upon
them by marriage. See Windsor, 133 S. Ct. at 2692. Instead, Colorado forces them into a separate
and unequal relationship status called civil unions.
Like DOMA, Colorados Recognition Ban represents a significant departure from its
history and reliance on the determination of other states and countries that marriages performed
there are valid. Except for same-sex marriages, Colorado recognizes that a marriage contracted in
a jurisdiction other than Colorado, which was valid under the laws of the jurisdiction in which it
was performed, is a valid marriage. Payne, 214 P.2d at 497. Except for same-sex couples,
Colorado recognizes foreign marriages even when Colorado law would have banned the
12

marriage because, for example, the parties were too young or the marriage violated Colorados
prior anti-miscegenation law. Instead, the State strips married same-sex couples of their marital
status and forces them into the separate and unequal institution of a civil union. See C.R.S. 14-
15-116. By doing so, it deprives couples married in other states but living in Colorado certain
federal rights, including rights as a spouse under the Family Medical Leave Act and rights as a
widow or widower under the Copyright Act. 17 U.S.C. 101; 29 C.F.R. 825.122(b).
The Supreme Court described the federal governments similar departure from its historical
recognition as valid any marriage that was valid in the state in which it was performed as strong
evidence of a law having the purpose and effect of disapproval of that class. Windsor, 133 S. Ct.
at 2693. As with DOMA, the Recognition Bans interference with the equal dignity of same-sex
marriages, a dignity conferred by [a] State[] in the exercise of [its] sovereign power, was more
than an incidental effect . . . . It was its essence. Id. Like DOMA, Colorados Recognition Ban
uses a state defined class . . . to impose restrictions and disabilities. Id. at 2692. The
Recognition Ban contrives to deprive some couples married under the laws of [another] State, but
not other couples, of both rights and responsibilities. Id. at 2694. Accordingly, the Recognition
Ban is unconstitutional.
C. Since Windsor, Court Have Unanimously Found Marriage Bans Unconstitutional
The Supreme Court issued its landmark opinion in Windsor on June 26, 2013. Since then,
every single court to evaluate same-sex marriage bans have found them unconstitutional, either
under the federal or relevant state constitution. See Henry v. Himes, -- F. Supp. 2d --, 2014 WL
1418395, at * 18 (S.D. Ohio April 14, 2014) (permanently enjoining Ohios recognition ban);
Baskin v. Bogan, --F.2d--, 2014 WL 1568884, at *5 (S.D. Ind. April 18, 2014) (preliminarily
enjoining Indiana's marriage recognition ban); DeBoer v. Snyder, -- F. Supp. 2d -- , 2014 WL
13

1100794, at *17 (E.D. Mich. Mar. 21, 2014) (permanently enjoining Michigans celebration ban
on equal protection grounds); Tanco v. Haslam, -- F. Supp. 2d -- , 2014 WL 997525, at **6, 9
(M.D. Tenn. Mar. 14, 2014) (enjoining enforcement of Tennessees recognition ban on equal
protection grounds); De Leon, 2014 WL 715741 at **1, 24 (preliminarily enjoining Texas
marriage bans on equal protection and due process grounds); Lee v. Orr, -- F. Supp. 2d --, 2014
WL 683680, at *2 (N.D. Ill. Feb. 21, 2014) (declaring Illinois celebration ban unconstitutional on
equal protection grounds); Bostic v. Rainey, 970 F. Supp. 2d 456 (finding Virginias marriage bans
unconstitutional on due process and equal protection grounds, and preliminarily enjoining
enforcement); Bourke v. Beshar, -- F. Supp. 2d -- , 2014 WL 556729, at *1 (W.D. Ky. Feb. 12,
2014) (declaring Kentuckys recognition ban unconstitutional on equal protection grounds);
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014)
(permanently enjoining Oklahomas celebration ban on equal protection grounds); Obergefell, 962
F. Supp. 2d at 997-98 (permanently enjoining, as to plaintiffs, enforcement of Ohios recognition
ban on due process and equal protection grounds); Kitchen, 961 F. Supp. 2d at 1216 (permanently
enjoining Utahs marriage bans on due process and equal protection grounds); Gray v. Orr, -- F.
Supp. 2d --, 2013 WL 635518, at *6 (N.D. Ill. Dec. 5, 2013) (granting temporary injunctive relief
from marriage bans to same-sex couple); Griego v. Oliver, 316 P.3d 865, 888-89 (N.M. 2013)
(finding that New Mexicos marriage laws violate its constitution to the extent they ban same-sex
marriages); Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. 2013) (requiring New Jersey to
allow same-sex couples to marry). See also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997
(N.D. Cal. 2010) (finding Californias marriage ban unconstitutional on due process and equal
protection grounds), affd on alternative grounds sub. nom. Perry v. Brown, 671 F.3d 1052 (9th
Cir. 2012), vacated sub. nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 2667 (2013) (The
14

judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the
appeal for lack of jurisdiction.); Varnum v. Brien, 763 N.W.2d 862, 907 (Iowa 2009)
(permanently enjoining Iowas marriage ban and holding parallel civil institutions for same sex
couples inadequate on equal protection grounds); In re Marriage Cases, 183 P.3d 384, 441-42
(Cal. 2008) (declaring Californias marriage bans unconstitutional on equal protection grounds),
superseded by constitutional amendment, Cal. Const. art I, 7.5, as recognized in Hollingsworth v.
Perry, 133 S. Ct. 2652, 2659 (2013); Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 525-31
(Conn. 2008) (declaring Connecticuts marriage bans violate its constitutions equal protection
principles); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) (striking down
Massachusettes marriage ban under the states due process and equal provisions) Baehr v. Miike,
1996 WL 694235, at **1, 22 (Hawaii Cir. Ct. Dec. 3, 1996) (permanently enjoining Hawaiis
marriage ban on equal protection grounds), affd 950 P.2d 1234 (Haw. 1997).
III. Colorados Marriage Bans Deny Plaintiffs Equal Protection of the Laws
The Equal Protection Clause of the U.S. Constitutions Fourteenth Amendment provides
that no state shall deny to any person within its jurisdiction the equal protection of its laws. U.S.
Const. amend. XIV, 1. The Constitution neither knows nor tolerates classes among citizens.
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). This clause of the
Constitution is a profound recognition of the essential and radical equality of all human beings. It
seeks to ensure that any classifications the law makes are made without respect to persons, that
like cases are treated alike, that those who appear similarly situated are not treated differently
without, at the very least, a rational reason for the difference. SECSYS, LLC v. Vigil, 666 F.3d
678, 684-85 (10th Cir. 2012) (quoting Engquist v. Oregon Dept of Agric., 553 U.S. 591, 602
(2008)).
15

A. Colorados Marriage Bans Fail Under Heightened Scrutiny
The Supreme Courts instruction in Windsor that the State can no longer single out gay and
lesbian relationships for second-class status, see supra II-A, makes it unnecessary to apply
traditional heightened scrutiny under the Equal Protection Clause. Nonetheless, Supreme Court
precedent also requires this Court to apply a heightened standard to classifications, like the
Marriage Bans, which discriminate on the basis of both sexual orientation and gender. This
heightened standard shifts the burden to the State to demonstrate that the ban is substantially
related to an important government objective. See Clark v. Jeter, 486 U.S. 456, 461 (1988). The
State cannot meet its burden.
2

1. Colorados Marriage Bans Discriminate on the Basis of Sexual Orientation
and Are Subject to Heightened Scrutiny
When the four traditional criteria used by the Supreme Court to determine whether a
particular group qualifies as a quasi-suspect class are applied to homosexuals the conclusion is
unmistakable: classifications based on sexual orientation require at least heightened scrutiny. A
litany of courts has now reached this same conclusion. See, e.g., Windsor v. United States, 699
F.3d 169, 181 (2d Cir. 2012), affd on other grounds by Windsor, 133 S. Ct. at 2695; Obergerfell,
962 F. Supp. 2d at 991; Pederson v. Office of Personnel Mgmt., 881 F. Supp. 2d 294, 310-33 (D.
Conn. 2012); Golinski v. United States Office of Personnel Mgmt., 824 F. Supp. 2d 968, 985-90
(N.D. Cal. 2012); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011); Perry, 704 F. Supp.
2d at 997; Griego, 316 P.3d at 885; Varnum, 763 N.W.2d at 885-96; In re Marriage Cases, 183
P.3d at 441-42; Kerrigan, 957 A.2d at 525-31. In addition, the Ninth Circuit has held that, apart

2
The State cannot meet the burden of strict scrutiny, which would require that the ban be suitably tailored to serve a
compelling state interest, see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). By only
offering in its Answer that the ban is related to the achievement of important governmental objectives, the State
effectively admits its strict scrutiny failure. See States Ans. at 12.
16

from these traditional factors, Windsor and Lawrence require application of heightened scrutiny.
See SmithKline Beecham Corp., 740 F.3d at 480-81. Finally, this conclusion has also been reached
by the Department of Justice. See McHugh Decl. Ex. 14: Windsor v. U.S., Brief of the United
States on the Merits Question at 16.
The Supreme Court instructs courts to apply four criteria to determine whether a group of
individuals qualifies as a suspect or semi-suspect class entitled to the protection of heightened
scrutiny. Those criteria include:
A) whether the class has been historically subject 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, 699 F.3d at 181 (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987)). These four
criteria do not all apply equally; rather, the last two are not strictly necessary factors to identify a
suspect class, but are nevertheless indicative. Windsor, 699 F.3d at 181. Sexual orientation
nonetheless satisfies each of these four traditional criteria.
a. Gay and Lesbian Individuals Have Suffered a History of
Discrimination
The history of discrimination against gay and lesbian individuals has been both severe and
pervasive. Obergerfell, 962 F. Supp. 2d at 987 (collecting some of the most egregious examples
of discrimination); see also SUF 95-103. It is easy to conclude that that homosexuals have
suffered a history of discrimination and this question is not much in debate. Windsor, 699 F.3d
at 182. In fact, every court to consider the question has concluded that this factor is satisfied. See,
e.g., Windsor, 669 F.3d at 169; High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563, 573 (9th Cir. 1990), overruled on other grounds by Smithkline, 740 F.3d at 480; Ben-Shalom
17

v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990); Obergerfell, 962
F. Supp. 2d at 897, Pederson, 881 F. Supp. 2d at 314; Golinski, 824 F. Supp. 2d at 985-86; Perry,
704 F. Supp. 2d at 981-82; In re Balas, 449 B.R. at 576; Greigo, 316 P.3d at 871; Varnum, 763
N.W.2d at 889-90; In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 432-34.
Accordingly, this factor weighs in favor of finding that classifications based on sexual orientation
demand heightened scrutiny.
b. Homosexuality Bears No Relationship to an Individuals Ability to
Contribute to Society
Beyond suffering a severe history of discrimination, the Supreme Court has instructed that
the other essential characteristic a group must possess to warrant heightened scrutiny is a relevant
group characteristic that bears no relationship to the groups ability to contribute to society. See
Frontiero v. Richardson, 411 U.S. 677, 686 (1973). Importantly, the parties here all agree that
[n]one of the Plaintiffs sexual orientation bears any relation to his or her ability to perform in or
contribute to society. SSF 14. The great majority of courts to consider the question have
similarly concluded that sexual orientation is irrelevant to a persons ability to contribute to
society. See, e.g., Windsor, 699 F.3d at 182-83; Obergerfell, 962 F. Supp. 2d at 988-89; Golinski,
824 F. Supp. 2d at 986; Pederson, 881 F. Supp. 2d at 320; Perry, 704 F. Supp. 2d at 1002; Watkins
v. U.S. Army, 875 F.2d 699, 725 (9th Cir. 1989). Accordingly, there can be no debate that
classifications based on sexual orientation satisfy this criterion.
c. Gay and Lesbian Individuals Share a Distinguishing Characteristic
The test for heightened scrutiny also sometimes looks at whether the group in question
possesses an immutable . . . or distinguishing characteristic that define [persons] as a discrete
group. Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (quotation omitted). Immutability is not
18

limited to characteristics that are strictly unchangeable, but looks at whether a characteristic is a
core trait or condition that one cannot or should not be required to abandon. Obergerfell, 962 F.
Supp. 2d at 990. [S]exual 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. Id. at 991; see also Karouni v. Gonzales, 399 F. 3d 1163, 1173 (9th
Cir. 2005) (finding that homosexuality is a fundamental aspect of . . . human identity);
Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (Sexual orientation and sexual
identity are immutable; they are so fundamental to ones identity that a person should not be
required to abandon them.), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d
1177 (9th Cir. 2005); Griego, 316 P.3d at 884; In re Marriage Cases, 183 P.3d at 442; Kerrigan,
957 A.2d at 438 (In view of the central role that sexual orientation plays in a persons
fundamental right to self-determination, we fully agree with the plaintiffs that their sexual
orientation represents the kind of distinguishing characteristic that defines them as a discrete group
for purposes of determining whether that group should be afforded heightened protection . . . .).
As the Supreme Court has already explained, the right to engage in intimate sexual conduct
between consenting adults constitutes an integral part of human freedom . . . . Lawrence v.
Texas, 539 U.S. 558, 577 (2003).
d. Gay and Lesbian Individuals Lack Political Power
Finally, while the Court need not necessarily find that homosexuals lack political power in
order to find that classifications based on sexual orientation must be subject to heightened scrutiny,
gay and lesbian individuals also satisfy this criterionarguably the only criterion of the four that is
open to some debate. See Griego, 316 P.3d at 882 (Focusing on the political powerless prong is a
reasonable strategy for the opponents of same-gender marriage because whether same-gender
19

couples (the LGBT community) are a discrete group who have been subjected to a history of
purposeful unequal treatment is not fairly debatable.). This factor examines relative political
power and seeks the answer to the question whether the discrimination is unlikely to be soon
rectified by legislative means. Golinski, 824 F. Supp. 2d at 987 (quoting Cleburne, 473 U.S. at
440).
Here again, courts considering this prong overwhelmingly conclude that, as a group, gay
and lesbian individuals to possess a limited ability to protect themselves in the political process.
Obergerfell, 962 F. Supp. 2d at 989-90; Pederson, 881 F. Supp. 2d at 832-33; Griego, 316 P.3d at
884 (finding that members of the LGBT community do not have sufficient political strength to
protect themselves from purposeful discrimination); Golinski, 824 F. Supp. 2d at 989 (finding
that the unequivocal evidence demonstrates that, although not completely politically powerless,
the gay and lesbian community lacks meaningful political power); but see Sevcik v. Sandoval, 911
F. Supp. 2d 996, 1009-1010 (D. Nev. 2012). In fact, the history of same-sex marriage bans across
the nation illustrates the historical lack of political power possessed by gays and lesbians. De
Leon, 2014 WL 715741, at *13. This lack of political power is caused by a number of factors,
including small population size and dispersion, the effect of HIV/AIDS on the community,
violence against gay and lesbian people, relative invisibility because many gay, lesbian, and
bisexual people are not open about their sexual orientation, censorship, public hostility and
prejudice, political and social hostility, unreliable allies in the political process, moral and political
condemnation, and a powerful, numerous, and well-funded opposition. Obergerfell, 962 F. Supp.
2d at 989-90.
20

2. Colorados Celebration Ban Discriminates on the Basis of Gender and is
Subject to Heightened Scrutiny
The Celebration Ban also violates the Equal Protection Clause because it discriminates on
the basis of gender. The Celebration Ban treats couples consisting of a man and a woman
differently than couples consisting of a man and a man or a woman and a woman. See, e.g., Colo.
Const. art. II, 31 (Only a union of one man and one woman shall be valid or recognized as a
marriage this state.) (emphasis added). Accordingly, the denial of civil marriage turns on the
gender of the individual one wishes to marry: a man who wishes to marry a man may not do so
because he is a man; a woman may not marry a woman because she is a woman. See, e.g., SSF
2. This distinction based on gender requires heightened scrutiny. See United States v. Virginia,
518 U.S. 515, 532-33 (1996); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v.
Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality).
This level of review shifts the burden to the State to show at least that the challenged
classification serves important governmental objectives and that the discriminatory means
employed are substantially related to the achievement of those objectives. Virginia, 518 U.S. at
533 (quotations omitted).
3. The State Cannot Meet its Burden of Showing an Important Purpose
Justifying the Marriage Ban
Regardless of whether the Court finds that the Celebration Ban discriminates on the basis
of sexual orientation or gender, either classification merits heightened review and shifts the burden
to the State to demonstrate that the law is substantially related to an actual and important
government objective. See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 77 (2001).
3
Whatever

3
In its answer, the State claims that [t]he challenged state laws are the product of the will of the people of Colorado
and are related to the achievement of important governmental objectives. See States Ans. at 12. The mere fact that a
law is the product of the will of the people cannot shield it from the dictates of the United States Constitution. See,
21

allegedly important governmental objectives the State asserts, it is apparent that the State cannot
meet its burden under heightened scrutiny given that the marriage ban bears no rational
relationship to any conceivable government interest, as explained below.
B. Colorados Marriage Bans Fail Under Rational Basis Review
Though the Court should apply heightened scrutiny, the marriage bans lack even a rational
basis. [E]ven in the ordinary equal protection case calling for the most deferential of standards,
[courts] insist on knowing the relation between the classification adopted and the object to be
attained. Romer, 517 U.S. at 632. By requiring that the classification bear a rational relationship
to an independent and legitimate legislative end, we ensure that classifications are not drawn for
the purpose of disadvantaging the group burdened by the law. Id. at 633 (citation omitted). A
state may not rely on a classification whose relationship to an asserted goal is so attenuated as to
render the distinction arbitrary or irrational. Cleburne, 473 U.S. at 447.
Every court to consider whether nearly identical marriage bans pass rational basis review
following the Supreme Courts decision in Windsor have concluded that they do not. DeBoer,
2014 WL 1100794, at **11-16; Bourke, 2014 WL 556729, at **6-8 (challenging only recognition
ban); Kitchen, 961 F. Supp. 2d at 1210-14; Bishop, 962 F. Supp. 2d at 1287-95; Tanco, 2014 WL
997525, at **5-6 (granting preliminary injunction as to challenge of recognition ban only); De
Leon, 2014 WL 715741, at **21-23. Similarly, Colorado courts applying an identical standard
rational basis standard have repeatedly struck down laws for failing to meet it. See, e.g., Rodriguez
v. Schutt, 914 P.2d 921, 927 (Colo. 1996) (striking down statute under rational basis review as
based upon an arbitrary and illusory difference); Higgs v. W. Landscaping & Sprinkler Sys., Inc.,

e.g., Romer, 517 U.S. at 623, 685-36 (striking down an amendment to Colorado Constitution adopted by state-wide
referendum).
22

804 P.2d 161, 165 (Colo. 1991) (same); Indus. Claim Appeals Office of State of Colo. v. Romero,
912 P.2d 62, 68 (Colo. 1996) (same); Gallegos v. Phipps, 779 P.2d 856, 861-63 (Colo. 1989)
(finding legitimate government purpose but striking down statue because it was not rationally
related to it); Pepper v. Indus. Claim Appeals Office of State, 131 P.3d 1137, 1140 (Colo. App.
2005) aff'd on other grounds sub nom. City of Florence v. Pepper, 145 P.3d 654 (Colo. 2006); see
also HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879, 893 n.7 (Colo. 2002) (The
analytical framework used to evaluate the right to equal protectionstrict scrutiny, intermediate
scrutiny, and rational basisis the same under both the Colorado and federal constitutions.).
1. No Rational Connection Exists Between the Marriage Ban and Any
Conceivable Justification
a. Preserving Traditional Marriage Solely for the Sake of Tradition is
not a Legitimate State Interest
Colorado voters were told that one reason to pass Amendment 43 was to preserv[e] the
commonly accepted definition of marriage. Marriage as an institution has historically consisted of
one man and one woman . . . . Amendment 43 Blue Book; see also McHugh Decl. Ex. 15: Brief
of the States as Amici Curiae in Kitchen at 14-15 (the States Amicus Br.). But tradition alone
cannot form a rational basis for upholding the marriage ban. See Heller v. Doe, 509 U.S. 312, 327
(1993) (the [a]ncient lineage of a legal concept does not give it immunity from attack for lacking
a rational basis); Bostic, 2014 WL 561978 (tradition alone cannot justify denying same-sex
couples the right to marry any more than it could justify Virginias ban on interracial marriage).
Whats more, that bare adherence to the way things have always been is the most commonly-cited
rationale for marriage bans and makes them particularly suspect. As the Supreme Court has
instructed, courts must be especially vigilant in evaluating the rationality of any classification
involving a group that has been subject to a tradition of disfavor for a traditional classification is
23

more likely to be used without pausing to consider its justification than is a newly created
classification. Cleburne, 473 U.S. at 453 n.6 (Stevens, J., concurring) (quotation omitted).
What the State may try to couch as protecting Traditional Marriage is nothing more than
moral condemnation of gays and lesbians and their families. The U.S. Supreme Court has long
held that the majoritys moral disapproval of a minority practice or group does not constitute a
legitimate state interest. [T]he fact that the governing majority in a State has traditionally viewed
a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the
practice; neither history nor tradition could save a law prohibiting miscegenation from
constitutional attack. Lawrence, 539 U.S. at 477-78; see also Massachusetts v. U.S. Dept. of
Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (invalidating section 3 of the Defense of
Marriage Act because the statute expressed a moral disapproval of homosexuality); Bishop, 962 F.
Supp. 2d at 1289 ([M]oral disapproval of homosexuals as a class, or same-sex marriage as a
practice, is not a permissible justification for a law.); De Leon, 2014 WL 715741, at *16-17
(rejecting morality as a justification); Kitchen, 2013 WL 6697874, at *27 (same). The fact that the
Marriage Bans may reflect some Coloradans religious views does not save them from
Constitutional attack. DeBoer, 2014 WL 1100794, at *15 (The same Constitution that protects
the free exercise of ones faith in deciding whether to solemnize certain marriages rather than
others, is the same Constitution that prevents the state from either mandating adherence to an
established religion, U.S. Const. amend I, or enforcing private moral or religious beliefs without
an accompanying secular purpose.) (quoting Perry, 704 F. Supp. 2d at 930931).

24

b. There Exists No Rational Connection Between Colorados Marriage
Ban and Optimal Child-Rearing
Amendment 43 voters were also told that traditional marriage provides the optimal
environment for creating, nurturing, and protecting children and preserving families. Amend. 43
Blue Book; see also States Amicus Br. at 15. There is little doubt that encouraging optimal
conditions for children is a compelling and legitimate governmental interest. The notion that
marriage bans bear any relationship whatsoever to that interest however, has been soundly rejected
by nearly every court to consider the question.
First, there can no longer be any doubt that same-sex couples are equally equipped to raise
healthy, happy children as opposite-sex couples. Indeed, the Colorado legislature acknowledged
this fact when it passed Colorados Civil Unions bill. See C.R.S. 14-15-107(4) (affording same
sex couples the same rights and obligations with respect to their children as married couples).
Consistent with this view, the States policy is to encourage same-sex couples to foster and adopt
children in the governments custody. See SSF 16; SUF 93. Even before civil unions were
passed, various counties, at the direction of the State, placed children in their custody with same-
sex couples. SUF 94.
Moreover, the overwhelming scientific consensus, based on decades of peer-reviewed
scientific research, shows unequivocally that children raised by same-sex couples are just as well
adjusted as those raised by heterosexual couples. Henry, 2014 WL 1418395 at *16; see also
DeBoer, 2014 WL 1100794, at *4 (children of same-sex couples do just as well in school as the
children of heterosexual married couples, and that same-sex couples are just as stable as
heterosexual couples); Perry, 704 F. Supp. 2d at 980 (Children raised by gay or lesbian parents
are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.
25

The research supporting this conclusion is accepted beyond serious debate in the field of
developmental psychology) (emphasis added); Varnum, 763 N.W.2d at 899 (Plaintiffs presented
an abundance of evidence and research, confirmed by our independent research, supporting the
proposition that the interests of children are served equally by same-sex parents and opposite-sex
parents); Golinski, 824 F. Supp. 2d at 991 (More than thirty years of scholarship resulting in
over fifty peer-reviewed empirical reports have overwhelmingly demonstrated that children raised
by same-sex parents are as likely to be emotionally healthy, and educationally and socially
successful as those raised by opposite-sex parents.). With respect to children raised by same-sex
or opposite-sex couples, there is a strong no differences consensus within the professional
associations in the psychological and sociological fields. DeBoer, 2014 WL 1100794, at *4. The
only study that purports to show contrary evidence was deemed entirely unbelievable and not
worthy of serious consideration. Id.
The State has implicitly recognized this no difference by conferring the same parental
rights and responsibilities as married couples, see C.R.S. 14-15-107(1), (4), (5)(g), and by
encouraging same-sex couples to foster and adopt children in governmental custody. SSF 16,
SUF 93. The State went even further and declared that the responsibilities and rights of parties
to a civil union with respect to the biological child of one of the parties, which child is conceived
during the term of the civil union, are determined as if the parties were spouses . . . . C.R.S. 14-
15-107(6). This includes the presumption that a child conceived during a civil union is the child of
both parties to the civil union to the exclusion of any other potential parent. See id. 19-4-105.
Thus the State has legally eschewed any preference for dual biological parenting or opposite-
gender parenting. Further, not only does the Marriage Bans fail to serve the purpose of protecting
children, it actively harms them. See supra I.B.
26

The genuineness of any claim by the State that childrens welfare is the actual purpose
behind the Marriage Bans must be viewed with considerable skepticism considering the States
decision to afford gay and lesbian parents the same rights and benefits with respect to children
through Civil Unions, see C.R.S. 14-15-107(1),(4),(5),(9) as well as the States practice of
encouraging same-sex couples to foster and adopt children in county custody, SSF 1b, SUF 93.
c. There is No Rational Connection Between Colorados Marriage
Bans and Encouraging Marriage and Responsible Procreation
The States second conceivable rationale for the Marriage Bans related to rearing children
is that restricting the institution of marriage to opposite-gender couples will encourage potentially
procreative couples to raise children produced by their sexual union together. See States Amicus
Br. at 15. This rationale turns on the fact that only opposite-sex couples can reproduce
accidentlyand thus their relationships require the incentive of marriage in order to promote
stability in families that risk producing unintended children. See id. at 17-18. As many courts
have recognized, this rationale ignores two key undisputed facts: first, traditional marriage has
never been restricted to only those who might accidently procreate by their union, see, e.g., De
Leon, 2014 WL 715741 at *15 (the procreative rationale threatens the legitimacy of marriages
involving post-menopausal women, infertile individuals, and individuals who choose to refrain
from procreating), and second, same-sex couples have and continue to procreate, as evidenced by
the five couples in this case who currently have or are expecting children. See SSF 11-12.
More fundamentally, the notion that heterosexual couples need marriage to remain
exclusive to them in order to maintain their desire to enter into the institution (and thereby the
protection of their sometimes-accidental children) is premised on an assumption that extending
marriage to all committed couples will have a detrimental effect on the frequency of marriage
27

among heterosexuals. But there is no logical reason to believe extending marriage rights to all
couples would have this effect, nor is there any empirical evidence that supports this claim. As the
Kitchen court explained, [i]t defies reason to conclude that allowing same-sex couples to marry
will diminish the example that married opposite-sex couples set for their unmarried counterparts.
Both opposite-sex and same-sex couples model the formation of committed, exclusive
relationships, and both establish families based on mutual love and support. Kitchen, 961 F.
Supp. 2d at 1211; see also De Leon, 2014 WL 715741 at *15 (finding that state of Texas failed to
establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual
couples will marry, or how other individuals will raise their families); Perry, 704 F. Supp. 2d at
972 (Permitting same-sex couples to marry will not affect the number of opposite-sex couples
who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of
opposite-sex marriage.); Griego, 316 P.3d at 886 (Regarding responsible procreation, we fail to
see how forbidding same-gender marriages will result in the marriages of more opposite-gender
couples for the purpose of procreating, or how authorizing same-gender marriages will result in the
marriages of fewer opposite-gender couples for the purpose of procreating.). Accordingly, there
is no rational connection between any asserted interest in encouraging responsible procreation and
Colorados marriage ban.
IV. The Marriage Bans Violate Plaintiffs Due Process Rights
The U.S. Constitution guarantees that all citizens have certain fundamental rights. Because
they are so important, an individuals fundamental rights may not be submitted to vote; they
depend on the outcome of no elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638
(1943). The Due Process clause of the Fourteenth Amendment states that: nor shall any State
deprive any person of life, liberty or property, without due process of law . . . . U.S. Const.
28

amend. XIV, 1. The Supreme Court has held that all fundamental rights comprised within the
term liberty are protected by the Federal constitution from invasion by the States. Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992) (quotation omitted). A legislative
enactment which infringes on a fundamental right . . . is constitutionally permissible only if it is
necessary to promote a compelling state interest and does so in the least restrictive manner
possible. Evans v. Romer, 882 P.2d 1335, 1341 (Colo. 1994) affd, 517 U.S. 620 (1996)
(emphasis in original) (quoting Dunn v. Blumstein, 405 U.S. 330, 342 (1972); citing Plyler v. Doe,
457 U.S. 202, 217 (1982)).
A. Colorados Celebration Ban Denies Plaintiffs Their Fundamental Right to Marry
There can be no serious doubt that in America the right to marry is a rigorously protected
fundamental right. Bostic, 970 F. Supp. 2d 456; see also Casey, 505 U.S. at 847-48 (finding
marriage to be an aspect of liberty protected against state interference); Turner v. Safley, 482
U.S. 78, 97 (1987) (finding that a regulation that prohibited inmates from marrying without the
permission of the warden impermissibly burden[ed] the right to marry); Zablocki v. Redhail, 434
U.S. 374, 38386 (1978) (defining marriage as a right of liberty); Cleveland Board of Ed. 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.); Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (finding
that choices about marriage are among associational rights this Court has ranked as of basic
importance in our society) (citations, quotations omitted); 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. Connecticut, 381 U.S. 479,
486 (1965) (Marriage is a coming together for better or for worse, hopefully enduring, and
29

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.); Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (finding marriage to be a basic civil
right[ ] of man); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (finding that marriage is a liberty
protected by the Fourteenth Amendment).
Further, the choice of whether to marry, and whom to marry, is protected by the Due
Process Clause from intrusion by the state. See Lawrence, 539 U.S. at 574 ([O]ur laws and
tradition afford constitutional protection to personal decisions relating to marriage . . . .) (citation
omitted); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) ([T]he Constitution
undoubtedly imposes constraints on the States power to control the selection of ones
spouse . . . .); Loving, 388 U.S. at 12 (Under our Constitution, the freedom to marry or not to
marry a person of another race resides with the individual and cannot be infringed by the State.).
1. Marriage Is a Fundamental Right to Marry the Person of Your Choosing
The right to marry is not simply the right to become a married person by signing a
contract with someone of the opposite sex. . . . A persons choices about marriage implicate the
heart of the right to liberty that is protected by the Fourteenth Amendment. Kitchen, 961 F. Supp.
2d at 1200 (citation omitted); see also Hodgson v. Minnesota, 497 U.S 417, 435 (1990) ([T]he
regulation of constitutionally protected decisions, such as . . . whom he or she shall marry, must be
predicated on legitimate state concerns other than disagreement with the choice the individual has
made.) (citation omitted); Zablocki, 434 U.S. at 384 (Although Loving arose in the context of
racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is
of fundamental importance for all individuals.); Loving, 388 U.S. at 12 (The Fourteenth
30

Amendment requires that the freedom of choice to marry not be restricted by invidious racial
discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of
another race resides with the individual and cannot be infringed by the State.).
2. Plaintiffs Seek Nothing More than Access to the Same Right Already Held
by Opposite-Sex Couples in Colorado
[S]ame-sex marriage is included within the fundamental right to marry. De Leon, 2014
WL 715741, at *20; see also Kitchen, 961 F. Supp. 2d at 1202-03 (citation omitted) (The alleged
right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right
that is currently enjoyed by heterosexual individuals: the right to make a public commitment to
form an exclusive relationship and create a family with a partner with whom the person shares an
intimate and sustaining emotional bond.); Bostic, 970 F Supp. 2d at 456 (Just as there can be no
question that marriage is a fundamental right, there is also no dispute that under Virginias
Marriage Laws, Plaintiffs and Virginia citizens similar to Plaintiffs are deprived of that right to
marry.); Perry, 704 F. Supp. 2d at 993 (To characterize plaintiffs objective as the right to
same-sex marriage would suggest that plaintiffs seek something different from what opposite-sex
couples across the state enjoynamely, marriage. Rather, plaintiffs ask California to recognize
their relationships for what they are: marriages.); In re Marriage Cases, 183 P.3d at 433-34 (the
right to marry . . . guarantees same-sex couples the same substantive constitutional rights as
opposite-sex couples to choose ones life partner and enter with that person into a committed,
officially recognized, and protected family relationship that enjoys all the constitutionally based
incidents of marriage); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 958 (Mass. 2003)
([a]s both Perez and Loving make clear, the right to marry means little if it does not include the
right to marry the person of ones choice).
31

The Supreme Court has consistently refused to narrow the scope of the fundamental
right to marry by reframing a plaintiffs asserted right to marry as a more limited
right that is about the characteristics of the couple seeking marriage. In individual
cases regarding parties to potential marriages with a wide variety of characteristics,
the Court consistently describes a general fundamental right to marry rather than
the right to interracial marriage, the right to inmate marriage, or the right of
people owing child support to marry.
Henry, 2014 WL 1418395, at *7 (citing Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d
968, 982 n.5 (N.D. Cal. 2012) (citing Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96, Zablocki,
434 U.S. at 383-86)); see also In re Marriage Cases, 183 P.3d at 421 n.33 (Turner did not
characterize the constitutional right at issue as the right to inmate marriage.). While courts use
history and tradition to identify the interests that due process protects, they do not carry forward
historical limitations, either traditional or arising by operation of prior law, on which Americans
may exercise a right, once that right is recognized as one that due process protects. Henry, 2014
WL 1418395, at *8; see also In re Marriage Cases, 183 P.3d at 430 (Fundamental rights, once
recognized, cannot be denied to particular groups on the ground that these groups have historically
been denied those rights.) (quotation omitted).
The history of Loving confirms that the fundamental right to marry cannot be defined in so
narrow a fashion that the basic protections afforded by the right are withheld from a class of
persons . . . who historically have been denied the benefit of such rights. In re Marriage Cases,
183 P.3d at 430. In a prior challenge to Virginias anti-miscegenation statute, the Supreme Court
of Appeals of Virginia described the right at issue as the right to interracial marriage. Naim v.
Naim, 87 S.E.2d 749, 755 (Va. 1955) ( No such claim for the intermarriage of the races could be
supported; by no sort of valid reasoning could it be found to be a foundation of good citizenship or
a right which must be made available to all on equal terms.) (emphasis added) vacated and
remanded, 350 U.S. 891 (1955), affd 90 S.E.2d 849, app. dism. 350 U.S. 985 (1956). When the
32

Supreme Court invalidated these laws, however, it did not understand the right at issue to be the
right to interracial marriage, but instead recognized that the right to marry a person of a different
race, despite the historical ban on such practices, was included in the fundamental right to marry.
Loving, 388 U.S. at 12. Under Loving an interracial marriage was considered to be a subset of
marriage, in the same way that same-sex marriage is included within the fundamental right to
marry. De Leon, 2014 WL 715741, at *20. The California Supreme Court has described its own
landmark decision striking down the states anti-miscegenation laws as confirming that the right to
marry includes the right to same-sex marriage:
in this courts 1948 decision holding that the California statutory provisions
prohibiting interracial marriage were unconstitutionalthe court did not
characterize the constitutional right that the plaintiffs in that case sought to obtain as
a right to interracial marriage and did not dismiss the plaintiffs constitutional
challenge on the ground that such marriages never had been permitted in California.
Instead, the Perez decision focused on the substance of the constitutional right at
issuethat is, the importance to an individual of the freedom to join in marriage
with the person of ones choicein determining whether the statute impinged
upon the plaintiffs fundamental constitutional right.
In re Marriage Cases, 183 P.3d at 420 (emphasis in original) (citing Perez v. Sharp, 198 P.2d 17,
19 (Cal. 1948)); see Baehr v. Lewin, 852 P.2d 44, 63 (Haw. 1993 (noting Hawaiis arguments in
support of its marriage ban was tautological and circular and comparing them to Virginias
argument that it had never been the custom of the state to recognize mixed marriages, marriage
always having been construed to presuppose a different configuration.).
Previously, the State has argued that while defining marriage as the right to make a public
commitment to form an exclusive relationship and create a family with a partner with whom the
person shares an intimate and sustaining emotional bond . . . might sound deeply rooted in the
nations history, it plainly fails to meet the Glucksberg requirement that a careful description of
the asserted fundamental liberty interest be made. States Amicus Br. at 7 (citing Washington v.
33

(1997)G" \s "WSFTA_14c4654838664731b5c8b926cf2c200f" \c 3 Washington v. Glucksberg, 521
U.S. 702 at 720-721 (1997); Kitchen, 961 F. Supp. 2d at 1202-03).
4
On the contrary, Colorados
own statutory history evinces an ability to carefully descri[be] the right to marry in terms that are
neither tied to procreation nor to gender. Prior to 1973, Colorados definition of marriage was
simply: Marriage is considered in law a civil contract to which the consent of the parties is
essential. C.R.S. Ch. 90-1-1 (1963) (current version at C.R.S. 14-1-101 (1973)).
B. Colorados Recognition Ban Denies Plaintiffs Their Right to Remain Married
[O]nce you get married lawfully in one state, another state cannot summarily take your
marriage away, because the right to remain married is properly recognized as a fundamental liberty
interest protected by the Due Process Clause of the United States Constitution. Obergefell, 962 F.
Supp. 2d at 973; see also Henry, 2014 WL 1418395, at *9. [T]he idea of being married in one
state and unmarried in another is one of the most perplexing and distressing complication[s] in the
domestic relations of citizens. Obergefell, 962 F. Supp. 2d at 978 (quoting Williams v. North
Carolina, 317 U.S. 287, 299 (1942)) (alteration in original). The Supreme Court has established
that existing marital, family, and intimate relationships are areas into which the government should
generally not intrude without substantial justification. Obergefell, 962 F. Supp. 2d at 978 (citing
Roberts, 468 U.S. at 618; Lawrence, 539 U.S. at 578) (emphasis in original). When a state
effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes
into the realm of private marital, family, and intimate relations specifically protected by the
Supreme Court. Obergefell, 962 F. Supp. 2d at 979; Henry, 2014 WL 1418395 at 9. As the
Supreme Court has held: this differential treatment humiliates tens of thousands of children now

4
The Glucksberg analysis is irrelevant where, as here, parties are seeking access to a pre-existing fundamental right,
rather than asking the court to recognize a new fundamental right. See Kitchen, 961 F. Supp. 2d at 1203.
34

being raised by same-sex couples, Id. (quoting Windsor, 133 S. Ct. at 2694) (emphasis removed),
which includes the children being raised by Amy Smart and Sandra Abbott, Wendy and Michelle
Alfredsen, Sara Knickerbocker and Ryann Peyton, and Jodi Lupien and Kathleen Porter as well as
the child who will be born to James Davis and Christopher Massey.
C. The Recognition Ban Denies Same-Sex Couples their Fundamental Right to Travel
The Recognition Ban also violates the fundamental right to interstate travel. The right to
travel interstate is without question a fundamental right under the United States Constitution.
Heninger v. Charnes, 200 Colo. 194, 198 (1980) (citations omitted).
It is, of course, well settled that the right of a United States citizen to travel from
one State to another and to take up residence in the State of his choice is protected
by the Federal Constitution . . . . [A] State may neither tax nor penalize a citizen for
exercising his right to leave one State and enter another.
Jones v. Helms, 452 U.S. 412, 417-19 (1981). A state law implicates the right to travel when it
actually deters such travel . . . or when it uses any classification which serves to penalize the
exercise of that right. Atty Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (citations,
quotations omitted); see also Dunn v. Blumenstein, 405 U.S. 330, 341 (1972) (It has long been
established that a State may not impose a penalty upon those who exercise a right guaranteed by
the Constitution . . . . Constitutional rights would be of little value if they could be . . . indirectly
denied . . . .) (quoting Harman v. Forssenius, 380 U.S. 528, 540 (1965)).
The Recognition Ban deters and penalizes married same-sex couples who wish to move to
Colorado because it forces such couples to forfeit legal recognition of their marriage as the cost of
moving to Colorado. In Dunn, the Supreme Court struck down a Tennessee statute that precluded
individuals from voting until they had resided within the state for one year. 405 U.S. 330. The
Dunn Court concluded that this law force[s] a person who wishes to travel and change residences
35

to choose between travel and the basic right to vote. Absent a compelling state interest, a State
may not burden the right to travel in this way. Id. at 342 (citations omitted).
Like voting, the right to marry is a fundamental right. See Robertson v. City & County of
Denver, 874 P.2d 325, 340 (Colo. 1994) (the United States Supreme Court has held that the right
to marry, to vote, and the right to interstate travel are fundamental rights) (footnotes omitted).
Just as Tennessee forced an unconstitutional choice on individuals between exercising their
fundamental rights to vote and to travel, the Recognition Ban imposes a similar unconstitutional
choice on same-sex married couples who wish to take up residence in Colorado between their right
to marry and their right to interstate travel. See Dunn, 405 U.S. at 342. The State can offer no
compelling interest that justifies this burden on the right travel.
The Recognition Ban unconstitutionally penalizes the exercise of the right to travel by
forcing married couples to choose between moving to Colorado and remaining married. In an age
of widespread travel and ease of mobility, it would create inordinate confusion and defy the
reasonable expectations of citizens whose marriage is valid in one state to hold that marriage
invalid elsewhere. Henry, 2014 WL 1418395, at *10 (citation, quotation omitted). A law that
forces couples to check their legal marriages at the state line as the cost of exercising their right to
interstate travel violates the United States Constitution.
D. Colorados Marriage Bans Are Not Necessary to Effectuate a Compelling State
Interest
Because the Plaintiffs seek to exercise their fundamental rights to marryincluding the
right to remain marriedand travel, the defendants must show that the Marriage Bans are
necessary to promote a compelling state interest and do[] so in the least restrictive manner
possible. Evans II, 882 P.2d at 1341 (emphasis omitted) (citation, quotation omitted).
36

Defendants cannot make such a showing, and the State has implicitly conceded as much. See
States Amicus Br. at 13-23 (making no attempt to justify the Marriage Ban under any standard
other than rational basis); see also States Ans. at 12 (defending the Marriage Bans as related to
the achievement of important governmental objectives not compelling state interests). Because
none of the justifications presented by Defendants survive even rational basis review, see supra
III-B, they necessarily fail to meet the strict scrutiny review required here.
V. Colorados Civil Union Law Is Inadequate And Fails to Cure the Constitutional
Infirmities of the Marriage Bans
In 2013, Colorado enacted the Colorado Civil Union Act, which purports to provide
eligible couples the opportunity to obtain the benefits, protections, and responsibilities afforded by
Colorado law to spouses consistent with the principles of equality under law and religious freedom
embodied in both the United States Constitution and Constitution of this State. C.R.S. 14-15-
102. In its Answer, the State invoked the Civil Union Act as an affirmative defense: Colorados
Civil Union Act provides same-sex couples, including same-sex couples who were married out-of-
state, the opportunity to obtain the benefit, protections, and responsibilities afforded by Colorado
law to opposite-sex married couples. States Ans. at 12. The Civil Union Act, however, neither
provides same-sex couples the same rights as opposite-sex couples, nor the State any cover to
justify the Marriage Bans.
A. Civil Unions Are A Separate, Second-Class Institution
[M]arriage is more than a routine classification for purposes of certain statutory benefits.
Windsor, 133 S.Ct. at 2692. The designation of the word marriage has
extraordinary significance . . . because marriage is the name that society gives to
the relationship that matters most between two adults. . . . It is the designation of
marriage itself that expresses validation, by the state and the community, and that
37

serves as a symbol, like a wedding ceremony or a wedding ring, of something
profoundly important.
Perry, 671 F.3d at 1078 (citation omitted).
[T]he institution of marriage carries with it a status and significance that the newly created
classification of civil unions does not embody . . . . Kerrigan, 957 A.2d at 412 (2008) (finding
that the segregation of heterosexual and homosexual couples into separate institutions constitutes
a cognizable harm.). While marriage is as old as civilization, and carries with it a dignity and
status of immense import, Windsor, 133 S.Ct. at 2689, 2692, civil unions (first introduced in
Denmark in 1989 and in the U.S. in 2000) are newer than cell phones (1973) or the Internet
(TCP/IP was standardized in 1982). The universal lexicon surrounding marriage is simply missing
from civil unions. Garden State Equality, 82 A.3d at 366 (There is, for example, no commonly
understood definition of what a civil union means.). A married couple consists of spouses,
C.R.S. 14-15-103(6), while the Civil Union Act uses the equally awkward phrases partner in a
civil union or party to a civil union to describe a person in a civil union, id. 14-15-103(5).
Similarly, one gets married, is in a marriage, and has marital assets. Does one get
unionized civil unionized? Are jointly owned assets union assets? None of the Plaintiffs
consider civil unions the equivalent of marriages. See SUF 14, 27b, 34e, 41a, 47, 51. The
Plaintiffs in a civil union experience the stigma from their inferior status of their relationship on a
daily basis. Id. at 27b, 34e, 41a, 47, 51. The differences in language between marriage and
civil union status perpetuate treating gays and lesbians and their families as different, as other,
with stigmatizing results. McHugh Decl. Ex. 16: Report of the Vermont Commission on Family
Recognition and Protection at 9 (April 21, 2008) (the Vermont Civil Union Report); id. Ex. 17:
The Legal, Medical, Economic & Social Consequences of New Jersey Civil Union Law, Final
38

Report of the New Jersey Civil Union Review Commission at 2 (Dec. 10, 2008) (the New Jersey
Civil Union Report) (marriage is a term of persuasive weight that everyone understands and
respects). It is no wonder Plaintiffs in a civil union routinely struggle to explain to family and
friends what the term means. Id. at 26, 34a-b, 41a, 65a.
Not surprisingly, courts analyzing whether marriage equivalents like civil unions are
equal in social status to marriage have without exception found that they are not. See Kerrigan,
957 A.2d at 418 (In view of the exalted status of marriage in our society, it is hardly surprising
that civil unions are perceived to be inferior to marriage.); In re Marriage Cases, 183 P.3d at 434
(The current statuesby drawing a distinction between the name assigned to the family
relationship available to opposite-sex couples and the name assigned to the family relationship
available to same-sex couples, and by reserving the historic and highly respected designation of
marriage exclusively to opposite-sex couples while offering same-sex couples only the new and
unfamiliar designation of domestic partnershippose a serious risk of denying the official family
relationship of same-sex couples the equal dignity and respect that is a core element of the
constitutional right to marry); Opinions of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass.
2004) (The dissimilitude between the terms civil marriage and civil union is not innocuous; it
is a considered choice of language that reflects a demonstrable assigning of same-sex, largely
homosexual, couples to second-class status); Perry, 704 F. Supp. 2d at 970, 971 (finding as facts
after trial that [d]omestic partnerships lack the social meaning associated with marriage, and
marriage is widely regarded as the definitive expression of love and commitment in the United
States and that [t]he availability of domestic partnership does not provide gays and lesbians with
a status equivalent to marriage because the cultural meaning of marriage and its associated benefits
39

are intentionally withheld from same-sex couples in domestic partnerships.).
5
See also Vermont
Civil Union Report at 6-14 (detailing the experienced inequality of civil unions); New Jersey Civil
Union Report at 11-23 (same).
In addition to being new, the institution of civil unions lack the guaranteed permanency of
marriage. As even a dissenting judge in Kerrigan recognized,
The institution of civil union is purely a creature of statute, subject to change or
repeal at the pleasure of the legislature. Marriage, on the other hand, is a
fundamental civil right protected by the constitution. Although the legislature has
the authority to alter the legal incidents of marriage, it presumably could not abolish
the institution altogether, and would be required to apply any statutory changes
uniformly to all married couples. Thus, contrary to the trial courts conclusion, the
difference between the two institutions is not merely one of nomenclature but has
specific legal consequences for the plaintiffs.
Kerrigan, 957 A.2d at 516 (Zarella, J., dissenting). The marriages of opposite-sex couples in
Colorado not only come with all the statutory and federal benefits available to married couples, but
are also protected by the United States Constitution. The Civil Union Act, however, is subject to
the whims of the electorate and legislature and could be repealed during the next legislative
session.
B. Civil Unions Do Not Confer the Same Benefits and Protections as Marriage
1. Plaintiffs Do Not Receive the Same Benefits and Protections of State Law
The Civil Union Act does not provide Plaintiffs Jodi Lupien and Kathleen Porter, Tommy
Craig and Josh Wells, and Wendy and Michelle Alfredsen and other same-sex couples who are in a

5
In comparison, Baker v. State, 744 A.2d 864 (Vt. 1999); Lewis v. Harris, 908 A.2d 196 (N.J. 2006), and Sevcik, 911
F. Supp. 2d at 1015-18, focused on the legal rights associated with marriage and not the social status. None of these
decisions can survive Windsors observation that [m]arriage is more than a routine classification for purposes of
certain statutory benefits. 133 S. Ct. at 2692. In fact, the Nevada Attorney General has recognized its arguments
grounded upon equal protection and due process in Sevcik are no longer sustainable under Windsor, and has
withdrawn from the case. Catherine Cortez Masto, Attorney General Mastos Statement on Same-Sex Marriage Case,
Nev. Atty. Gen. (Feb. 10, 2014),
http://ag.nv.gov/News/PR/2014/Miscellaneous/Attorney_General_Mastos_Statement_On_Same-
Sex_Marriage_Case/.
40

civil union but not married in another jurisdiction (the Civil Union Couples), the opportunity to
obtain the benefits, protections, and responsibilities afforded by Colorado law to opposite-sex
married couples. States Ans. at 12. As originally written, the Civil Unions Act explicitly denied
Civil Union Couples the right to file their state tax return jointly:
(1) The general assembly finds that current federal law prohibits the filing of a joint
income tax return by parties who are not considered legally married under federal
law. Since Colorado income tax filings are tied to the federal income tax form by
requiring taxpayers to pay a percentage of their federal taxable income as their state
income taxes, this prevents the filing by the parties to a civil union of a joint state
income tax return.
(2) Until a statutory change is enacted to authorize the filing of a joint state income
tax return by parties to a civil union, this article shall not be construed to permit the
filing of a joint state income tax return by the parties to a civil union.
C.R.S. 14-15-117 (2013) (amended 2014). On February 27, 2014, Colorado amended its tax
statutes to require that:
(1) If the federal taxable income of two taxpayers may legally be determined on a
joint federal return but actually is determined on separate federal returns, such
income for purposes of the Colorado income tax shall be separately determined.
(2) If the federal taxable income of two taxpayers is determined on a joint federal
return, their tax shall be determined on their joint federal taxable income.
C.R.S. 39-22-107; see also C.R.S. 14-15-117 (2014). After Windsor, the IRS clarified that
same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as
married for federal tax purposes. The ruling applies regardless of whether the couple lives in a
jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex
marriage. IRS Notice IR-2013-72 (Aug. 29, 2013). However, the IRS further noted that the
ruling does not apply to registered domestic partnerships, civil unions or similar formal
relationships recognized under state law. Id. (emphasis added). Because the State has chosen to
tie its state taxes to federal law and has chosen to provide same-sex couples only the option of civil
41

unions, Civil Union Couples may not file their state tax returns jointly. SUF 87. Certain Civil
Union Couples will thus pay more state income tax than if they were allowed to marry. Id. 91.
2. Plaintiffs Do Not Receive the Same Benefits and Protections of Federal Law
The Civil Union Act explicitly reserves the terms marriage and spouse to opposite-sex
couples. C.R.S. 14-15-103(4), (6). There are over 1,000 federal laws in which marital or
spousal status is addressed as a matter of federal law. Windsor, 133 S. Ct. at 2683. Because
federal statutes and regulations use the terms marriage and spouse, federal benefits that would
be available to same-sex couples if they were allowed to be lawfully married in Colorado are not
available to them as partners in a civil union. See Garden State Equality, 82 A.3d 336 at 365
([T]he Office of Personnel Management, Department of State, the Department of Labor, the
Internal Revenue Service, and the Centers for Medicaid and Medicare, have stated that they will
not be recognizing civil unions, and rather will be confining eligibility for benefits to spouses in
lawful marriages.). Even same-sex couples who are legally married in another state lose certain
federal benefits because Colorado does not recognize them as married, including protections under
the Family Medical Leave Act, 29 C.F.R. 825.122(b) and the Copyright Act, see 17 U.S.C.
101; and may lose social security and veterans benefits. See 42 U.S.C. 416(h)(1)(A)(i); SUF
106; 38 U.S.C. 103(c).
In addition to making Civil Union Couples ineligible for many federal benefits, civil
unions, unlike marriages, are not recognized in every state as a legal relationship. The majority of
states do not recognize civil unions as a legal relationship, nor do the majority of foreign countries.
See Vermont Civil Union Report at 26 (noting that only 8 states recognize a Vermont Civil
Union); New Jersey Civil Union Report at 38 (noting lack of clarity regarding recognition of New
Jersey Civil Unions). In those states and foreign nations, Civil Union Couples would be deemed
42

legal strangers to each other. See, e.g., Appling v. Doyle, 826 N.W.2d 666, 674 (Wis. App. 2012)
(noting that Wisconsin does not recognize civil unions from other states); see also Perry 704 F.
Supp. 2d at 971 (The court asked the parties to identify which states recognize California
domestic partnerships. No party could identify with certainty the states that recognize them.).
Even when couples take additional legal steps to help provide greater protections for themselves
and their children, when they travel there is no amount of supplementary paperwork that can
provide all the benefits and protections of marriage.
C. Even If Civil Unions Were Equal, Which They Are Not, Such Separate Status Is
Not Permissible
The history of our nation has demonstrated that separate is seldom, if ever, equal.
Opinions of the Justices to the Senate, 802 N.E.2d at 569. Justice Harlan opined on the issue of
separate but equal in his dissent in Plessy v. Ferguson where he insisted that the Constitution
prohibits distinctions implying inferiority in civil society because there is in this country no
superior, dominant or ruling class of citizens. 163 U.S. at 556, 559 (Harlan, J., dissenting). Our
constitution . . . neither knows nor tolerates classes among citizens. In respect of civil rights, all
citizens are equal before the law. Id. at 559. He further explained that this is true even of laws
that confer equal rights and benefits, stating that the thin disguise of equal
accommodations. . .will not mislead anyone . . . . Id. at 562.
More importantly, the same principles that were present in the landmark case of Brown v.
Board of Education are present today with Colorados civil union law and marriage recognition
ban. See Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954). The core
issues raised by the separate status for same-sex couples embodied in the civil union law are the
same as courts faced in Brown. See id. In Brown, the Supreme Court rejected the idea that
43

equality of treatment is accorded when races are provided substantially equal facilities. Id. at
488. The Court reasoned that segregation generates a feeling of inferiority as to [blacks] status
in the community that may affect their hearts and minds in a way unlikely ever to be undone. Id.
at 494. Similarly, in United States v. Virginia, the Fourth Circuit had initially found that single-
gender education at Virginia Military Institute could be justified by its institutional mission, and
allowed VMI to create a separate school for women. United States v. Virginia, 518 U.S. 515, 527-
29 (1996). The Supreme Court overturned the exclusion of women from VMI holding that the
exclusion denied women full citizenship stature and that a separate facility could not provide
equality. Id. at 532, 534-35. The Court found the scheme was unconstitutional because the
womens school was not equal to VMI. Id. at 53. Thus, the Court ruled that a separate facility
could not provide equality. Id. at 551-54. Significantly, the Court noted that a separate institution
for women could not provide the standing in the community, traditions and prestige that would
be provided by full inclusion. Id. at 554 (quoting Sweatt v. Painter, 339 U.S. 629, 634 (1950)).
Civil unions exclude same-sex couples from marriage and creates a system that is unclear,
unjust and just plain unequal. [T]he provisioning of the rights of marriage through the separate
status of civil unions perpetuates the unequal treatment of committed same-sex couples. New
Jersey Civil Union Report at 2; see also id. at 1 (this Commission finds that the separate
categorization established by the Civil Union Act invites and encourages unequal treatment of
same-sex couples and their children). Looking back through history, the U.S. Supreme Court has
repeatedly admonished these types of schemes. The same principles can be applied here to the
notion that same-sex relationships must be placed in a separate category. Additionally, courts have
increasingly recognized that the alternative status that Colorado assigns to same-sex couples is
inadequate and unequal and that gay people must have the same rights available to others. It is this
44

two-tiered marriage/civil union statutory structure that reinforces the view that civil unions are
inadequate, and continue to represent a separate and unequal system that history shown to be
unacceptable.
CONCLUSION
For all of these reasons, summary judgment should be granted in Plaintiffs favor on all of
their claims for relief.
DATED this 2nd day of May, 2014.
Respectfully submitted,


s/ John M. McHugh
John M. McHugh, #45456; jmchugh@rplaw.com
Amy R. Gray, #40814; agray@rplaw.com
Michael Kotlarczyk, # 43250; mkotlarczyk@rplaw.com
Tess Hand-Bender, #42681; thandbender@rplaw.com
Jason M. Lynch, #39130; jlynch@rplaw.com
REILLY POZNER LLP
1900 Sixteenth Street, Suite 1700
Denver, Colorado 80202
Phone: (303) 893-6100; Fax: (303) 893-6110

s/ Marcus Lock
Marcus Lock, #33048; mlock@lawoftherockies.com
LAW OF THE ROCKIES
525 North Main Street
Gunnison, Colorado 81230
Phone: (970) 641-1903; Fax: (970) 641-1943

s/ Ann Gushurst
Ann Gushurst, #29187; ann@ggfamilylaw.com
GUTTERMAN GRIFFITHS PC
10375 Park Meadows Blvd., Suite 520
Littleton, Colorado 80124
Phone: (303) 858-8090; Fax: (303) 858-8181

45

CERTIFICATE OF SERVICE
I hereby certify that on May 2, 2014, I electronically filed the foregoing BRIEF IN
SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT through ICCES which
will send notification of such filing to the following:

Jack Finlaw
Benjamin Figa
Governors Office of Legal Counsel
121 State Capitol
Denver, CO 80203
Jack.finlaw@state.co.us
Ben.figa@state.co.us

Attorneys for Gov. John W. Hickenlooper, Jr.

Dan Domenico
Michael Francisco
Kathryn Starnella
Colorado Attorney Generals Office
1300 Broadway, 10
th
Floor
Denver, CO 80202
Dan.domenico@state.co.us
Michael.francisco@state.co.us
Kathryn.starnella@state.co.us

Attorneys for the State of Colorado

Wendy Shea
Denver City Attorneys Office
1437 Bannock St.
Denver, CO 80202
Wendy.shea@denvergov.org

Attorney for Debra Johnson, Clerk and
Recorder for the City and County of Denver
Ralph Ogden
M. Anne Wilcox
Wilcox & Ogden, P.C.
160 Lafayette Street
Denver, CO 80218

Professor Thomas Russell
1001 16
th
Street B180 # 175
Denver CO 80265

Attorneys for the Adams County Plaintiffs


s/ Janie Cohen
Janie Cohen