In The United States Court of Appeals For The Seventh Circuit
MARILYN RAE BASKIN, et al., Plaintiffs-Appellees, v.
GREG ZOELLER, et al., Defendants-Appellants.
MIDORI FUJII, et al., Plaintiffs-Appellees, v.
COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF REVENUE, in his official capacity, et al., Defendants-Appellants.
PAMELA LEE, et al., Plaintiffs-Appellees, v.
BRIAN ABBOTT, et al., Defendants-Appellants.
On Appeal From The United States District Court For The Southern District of Indiana Case Nos. 1:14-cv-00355-RLY-TAB, 1:14-cv-00404-RLY-TAB, 1:14-cv-00406-RLY-MJD The Honorable Richard L. Young Presiding
SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES VOL. 1 OF 2 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (1 of 518)
Paul D. Castillo (Counsel of Record) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219
Jordan M. Heinz Brent P. Ray Dmitriy G. Tishyevich Melanie MacKay Scott Lerner KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654
Camilla B. Taylor LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, Illinois 60603
Counsel for Plaintiffs-Appellees Marilyn Rae Baskin, et al.
Kenneth J. Falk (Counsel of Record) Gavin M. Rose Kelly R. Eskew ACLU OF INDIANA 1031 East Washington Street Indianapolis, Indiana 46202
Sean C. Lemieux LEMIEUX LAW 23 East 39th Street Indianapolis, Indiana 46205
James Esseks Chase Strangio AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004
Counsel for Plaintiffs-Appellees Midori Fujii, et al.
William R. Groth (Counsel of Record) FILLENWARTH DENNERLINE GROTH & TOWE LLP 429 E. Vermont Street, Suite 200 Indianapolis, Indiana 46202
Karen Celestino-Horseman Of Counsel, AUSTIN & JONES, P.C. One North Pennsylvania Street, Suite 220 Indianapolis, Indiana 46204
Mark W. Sniderman SNIDERMAN NGUYEN, LLP 47 South Meridian Street, Suite 400 Indianapolis, Indiana 46204 Kathleen M. Sweeney SWEENEY HAYES LLC 141 East Washington, Suite 225 Indianapolis, Indiana 46204
Counsel for Plaintiffs-Appellees Pamela Lee, et al. Additional Counsel Listed on Signature Block Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (2 of 518)
Dated: July 29, 2014
Respectfully submitted,
/s/ Jordan M. Heinz
Jordan M. Heinz Brent P. Ray Dmitriy G. Tishyevich Melanie MacKay Scott Lerner KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000 jordan.heinz@kirkland.com brent.ray@kirkland.com dmitriy.tishyevich@kirkland.com melanie.mackay@kirkland.com scott.lerner@kirkland.com
Barbara J. Baird LAW OFFICE OF BARBARA J. BAIRD 445 North Pennsylvania Street, Suite 401 Indianapolis, Indiana 46204-0000 (317) 637-2345 bjbaird@bjbairdlaw.com
Counsel for Plaintiffs-Appellees Marilyn Rae Baskin, et al.
Paul D. Castillo (Counsel of Record) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219 (214) 219-8585, ext. 242 pcastillo@lambdalegal.org
Camilla B. Taylor LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, Illinois 60603 (312) 663-4413 ctaylor@lambdalegal.org
/s/ Kenneth J. Falk Kenneth J. Falk (Counsel of Record) Gavin M. Rose Kelly R. Eskew ACLU OF INDIANA 1031 East Washington Street Indianapolis, Indiana 46202 (317) 635-4059 kfalk@aclu-in.org grose@aclu-in.org keskew@aclu-in.org
/s/ Sean C. Lemieux Sean C. Lemieux LEMIEUX LAW 23 East 39th Street Indianapolis, Indiana 46205 (317) 985-5809 sean@lemieuxlawoffices.com
James Esseks Chase Strangio AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 (212) 549-2627 jesseks@aclu.org cstrangio@aclu.org
Counsel for Plaintiffs-Appellees Midori Fujii, et al.
/s/ Karen Celestino-Horseman Karen Celestino-Horseman Of Counsel, AUSTIN & JONES, P.C. One North Pennsylvania Street, Suite 220 Indianapolis, Indiana 46204 (317) 632-5633 karen@kchorseman.com
Mark W. Sniderman SNIDERMAN NGUYEN, LLP 47 South Meridian Street, Suite 400 Indianapolis, Indiana 46204 (317) 361-4700 mark@snlawyers.com
Robert A. Katz Indiana University McKinney School of Law 530 West New York Street, Room 349 Indianapolis, Indiana 46202
Counsel for Plaintiffs-Appellees Pamela Lee, et al. /s/ William R. Groth William R. Groth (Counsel of Record) FILLENWARTH DENNERLINE GROTH & TOWE, LLP 429 East Vermont Street, Suite 200 Indianapolis, Indiana 46202 (317) 353-9363 wgroth@fdgtlaborlaw.com
Kathleen M. Sweeney SWEENEY HAYES LLC 141 East Washington Street, Suite 225 Indianapolis, Indiana 46204 (317) 491-1050 ksween@gmail.com
I hereby certify that on July 29, 2014, I caused a true and correct copy of the foregoing SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES (VOL. 1 OF 2) to be electronically filed with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
Unpublished Cases Cited in Brief of Plaintiffs-Appellees No. Case 1 Baskin v. Bogan, No. 1:14-cv-00355, 2014 WL 2884868 (S.D. Ind. June 25, 2014) 2 Bishop v. Smith, Nos. 14-5003, 14-5006, 2014 WL 3537847 (10th Cir. July 18, 2014) 3 Bostic v. Schaefer, No. 14-1167 (4th Cir. July 28, 2014) 4 Bourke v. Beshear, 3:13-cv-750-H, 2014 WL 556729 (W.D. Ky. Feb 12, 2014) 5 Brinkman v. Long, No. 13-cv-32572, 2014 WL 3408024 (Adams Cnty. Dist. Ct. July 9, 2014) 6 Burns v. Hickenlooper, No. 14-cv-01817, 2014 WL 3634834 (D. Colo. July 23, 2014) 7 Evans v. Utah, No. 2:14-cv-00055, 2014 WL 2048343 (D. Utah May 19, 2014) 8 Geiger v. Kitzhaber, Nos. 6:13-cv-01834, 6:13-cv-02256, 2014 WL 2054264 (D. Or. May 19, 2014)
Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (6 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 2884868 Only the Westlaw citation is currently available. United States District Court, S.D. Indiana, Indianapolis Division. Marilyn Rae BASKIN and Esther Fuller; Bonnie Everly and Linda Judkins; Dawn Lynn Carver and Pamela Ruth Elease Eanes; Henry Greene and Glenn Funkhouser, individually and as parents and next friends of C.A.G.; Nikole Quasney, and Amy Sandler, individually and as parents and next friends of A.Q.-S. and M.Q.-S., Plaintiffs, v. Penny BOGAN, in her official capacity as Boone County Clerk; Karen M. Martin, in her official capacity as Porter County Clerk; Michael A. Brown, in his official capacity as Lake County Clerk; Peggy Beaver, in her official capacity as Hamilton County Clerk; William C. Vanness II, M.D., in his official capacity as the Commissioner, Indiana State Department of Health; and Greg Zoeller, in his official capacity as Indiana Attorney General, Defendants. Midori Fujii; Melody Layne and Tara Betterman; Scott and Rodney MoubrayCarrico; Monica Wehrle and Harriet Miller; Gregory Hasty and Christopher Vallero; Rob MacPherson and Steven Stolen, individually and as parents and next friends of L. M.-C. and A. M.-S., Plaintiffs, v. Governor, State of Indiana, in his official capacity; Commissioner, Indiana State Department of Health, in his official capacity; Commissioner, Indiana State Department of Revenue, in his official capacity; Clerk, Allen County, Indiana, in her official capacity; Clerk, Hamilton County, Indiana, in her official capacity, Defendants. Officer Pamela Lee, Candace BattenLee, Officer Teresa Welborn, Elizabeth J. Piette, Batallion Chief Ruth Morrison, Martha Leverett, Sergeant Karen VaughnKajmowicz, Tammy VaughnKajmowicz, and J.S. V., T.S. V., T.R.V., by their parents and next friends Sergeant Karen VaughnKajmowicz and Tammy VaughnKajmowicz, Plaintiffs, v. Mike Pence, in his official capacity as Governor of the State of Indiana; Brian Abbott, Chris Atkins, Ken Cochran, Steve Daniels, Jodi Golden, Michael Pinkham, Kyle Rosebrough, and Bret Swanson, in their official capacities as members of the Board of Trustees of the Indiana Public Retirement System; and Steve Russo, in his official capacity as Executive Director of the Indiana Public Retirement System, Defendants. Nos. 1:14cv00355RLYTAB, 1:14 cv00404RLYTAB, 1:14cv00406 RLYMJD. | Signed June 25, 2014. Synopsis Background: Same-sex couples brought action challenging constitutionality of Indiana statute banning same-sex marriage, and all other laws precluding such marriages or preventing their recognition. Parties cross-moved for summary judgment. Holdings: The District Court, Richard L. Young, Chief Judge, held that: [1] Indiana Attorney General was a proper defendant; [2] governor of Indiana was not a proper defendant; [3] commissioner of the Indiana Department of Revenue was a proper defendant; [4] statute banning same-sex marriage violated same-sex couples' fundamental right to marry; [5] statute banning same-sex marriage did not discriminate against same-sex couples based on their gender; but [6] statute banning same-sex marriage discriminated against same-sex couples based on their sexual orientation; and [7] there was no rational basis for treating same-sex couples differently by excluding them from marriage. Motions granted in part and denied in part. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (7 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 West Codenotes Held Unconstitutional West's A.I.C. 311111. Recognized as Unconstitutional 1 U.S.C.A. 7 Limited on Constitutional Grounds West's A.I.C. 4616, 311141, 3111111, 311111 3, 3111114, 3111115, 3111117 Attorneys and Law Firms Barbara J. Baird, The Law Office of Barbara J. Baird, Indianapolis, IN, Brent Phillip Ray, Jordan Heinz, Kirkland & Ellis LLP, Chicago, IL, Camilla B. Taylor, Christopher R. Clark, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Paul D. Castillo, Dallas, TX, for Plaintiffs. Robert V. Clutter, Kirtley, Taylor, Sims, Chadd & Minnette, P.C., Lebanon, IN, Elizabeth A. Knight, Valparaiso, IN, John S. Dull, Law Office of John S. Dull, PC, Merrillville, IN, Nancy Moore Tiller, Nancy Moore Tiller & Associates, Crown Point, IN, Omas M. Fisher, Office of the Attorney General, Indianapolis, IN, Darren J. Murphy, Howard & Associates, Noblesville, IN, for Defendants. Opinion ENTRY ON CROSSMOTIONS FOR SUMMARY JUDGMENT RICHARD L. YOUNG, Chief Judge. *1 The court has before it three cases, Baskin v. Bogan, Fujii v. Pence, and Lee v. Pence. All three allege that Indiana Code Section 311111 (Section 311111), which defines marriage as between one man and one woman and voids marriages between same-sex persons, is facially unconstitutional. Plaintiffs in the Baskin and Fujii cases challenge the entirety of Section 311111, while Plaintiffs in the Lee case challenge only Section 3111 11(b). Plaintiffs, in all three cases, allege that Section 311111 violates their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. In each case, Plaintiffs seek declaratory and injunctive relief against the respective Defendants. Also in each case, Plaintiffs and Defendants have moved for summary judgment, agreeing that there are no issues of material fact. For the reasons set forth below, the court finds that Indiana's same sex marriage ban violates the due process clause and equal protection clause and is, therefore, unconstitutional. The court GRANTS in part and DENIES in part the Plaintiffs' motions for summary judgment and GRANTS in part and DENIES in part the Defendants' motions. I. Background A. The Baskin Plaintiffs The court considers the case of Baskin v. Bogan to be the lead case and thus will recite only those facts relevant to that dispute. In Baskin v. Bogan, Plaintiffs are comprised of five same-sex couples and three minor children of two of the couples. (Amended Complaint 1, Filing No. 30). 1 Four couples, Marilyn Rae Baskin and Esther Fuller, Bonnie Everly and Linda Judkins, Dawn Carver and Pamela Eanes, Henry Greene and Glenn Funkhouser (collectively the unmarried plaintiffs), are not married; one couple, Nikole Quasney and Amy Sandler (collectively the married plaintiffs), married in Massachusetts while on their annual vacation to the Sandler family home. Each couple resides in Indiana and has been in a loving, committed relationship for over a decade. Each couple has their own set of fears and concerns should something happen to his or her significant other. Plaintiffs challenge Section 311111, which states: (a) Only a female may marry a male. Only a male may marry a female. (hereinafter Section A) (b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized. (hereinafter Section B) In addition, Plaintiffs broadly challenge other Indiana statutes that have the effect of carrying out the marriage ban. (hereinafter, collectively, with Section 311111, referred to as Indiana's marriage laws). On April 10, 2014, the court granted a temporary restraining order (Filing No. 51) prohibiting the Baskin Defendants from enforcing Section B against Nikole Quasney and Amy Sandler. The parties in Baskin agreed to fully brief their motions for preliminary injunction and summary judgments for a combined hearing held on May 2, 2014. The court granted a preliminary injunction extending the temporary restraining order. (Filing No. 65). The court now considers the cross motions for summary judgment in the three cases. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (8 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 B. Indiana's Marriage Laws *2 In order to marry in the State of Indiana, a couple must apply for and be issued a marriage license. See Ind.Code 311141. The couple need not be residents of the state. See Ind.Code 311143. However, the two individuals must be at least eighteen years of age or meet certain exceptions. See Ind.Code 311114; Ind.Code 3111 15. An application for a marriage license must include information such as full name, birthplace, residence, age, and information about each person's parents. See Ind.Code 31 1144. 2 The application only has blanks for information from a male and female applicant. See Marriage License Application, available at www.in.gov/judiciary/2605.htm. It is a Class D Felony to provide inaccurate information in the marriage license or to provide inaccurate information about one's physical condition. 3 See Ind.Code 311111 1; Ind.Code 3111113. The clerk may not issue a license if an individual has been adjudged mentally incompetent or is under the influence of alcohol or drugs. See Ind.Code 31 11411. The marriage license serves as the legal authority to solemnize a marriage. See Ind.Code 3111414. The marriage may be solemnized by religious or non-religious figures. See Ind.Code 311161. If an individual attempts to solemnize a marriage in violation of Indiana Code Chapter 31111, which includes same-sex marriages, then that person has committed a Class B Misdemeanor. See Ind.Code 3111117. [1] In addition to prohibiting same-sex marriages, Indiana prohibits bigamous marriages and marriages between relatives more closely related than second cousins unless they are first cousins over the age of sixty-five. See Ind.Code 31 1112 (cousins); see Ind.Code 311113 (polygamy). Nevertheless, when evaluating the legality of marriages, the Indiana Supreme Court found that the presumption in favor of matrimony is one of the strongest known to law. Teter v. Teter, 101 Ind. 129, 13132 (Ind.1885). In general, Indiana recognizes out-of-state marriages that were valid in the location performed. Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250, 304 (Ind.1951) ( [t]he validity of a marriage depends upon the law of the place where it occurs.). II. Summary Judgment Standard The purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate if the record shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED R. CIV. P. 56(a). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). *3 On a motion for summary judgment, the burden rests with the moving party to demonstrate that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to go beyond the pleadings and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 32223. If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994) (citing Matsushita Elec. Indus. Co., 475 U.S. at 58587); see Celotex, 477 U.S. at 32224; see also Anderson, 477 U.S. at 24952. Prior to discussing the merits of the summary judgment motions, the court must decide several threshold issues. First, the court must determine whether Defendants Attorney General Zoeller, Governor Pence, and the Commissioner of the Indiana State Department of Revenue (Department of Revenue Commissioner) are proper parties, and second, whether Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) bars the present lawsuit. III. Proper PartyDefendants [2] [3] Under the Eleventh Amendment, a citizen cannot sue their state in federal court unless the state consents. However, the Supreme Court created an important exception to that immunity in Ex Parte Young. 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Under that doctrine, a private party can sue a state officer in his or her official capacity to enjoin prospective action that would violate federal law. Ameritech Corp. v. McCann, 297 F.3d 582, 58586 (7th Cir.2002)(quoting Dean Foods Co. v. Brancel, Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (9 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 187 F.3d 609, 613 (7th Cir.1999)). Because Plaintiffs seek an injunction to enjoin actions which violate federal law, Ex Parte Young applies. The question here rather, is who is a proper defendant? [4] The proper defendants are those who bear legal responsibility for the flaws [plaintiffs] perceive in the system and not one[s] from whom they could not ask anything ... that could conceivably help their cause. Sweeney v. Daniels, No. 2:12cv81PPS/PRC, 2013 WL 209047, * 3 (N.D.Ind.Jan.17, 2013) (quoting Hearne v. Bd. of Educ., 185 F.3d 770, 777 (7th Cir.1999)). Defendants Zoeller, Pence, and the Department of Revenue Commissioner assert that they are not the proper parties. For the reasons explained below, the court agrees with Governor Pence and disagrees with Attorney General Zoeller and the Department of Revenue Commissioner. A. Defendant Zoeller [5] Defendant Zoeller, sued in Baskin v. Bogan, asserts that he neither has the authority to enforce nor has any other role respecting Section 311111 as the Attorney General. However, the Baskin Plaintiffs' complaint broadly challenges Section 311111 and the State's other laws precluding such marriages, and requests that the court declare Section 31 1111 and all other sources of Indiana law that preclude marriage for same-sex couples or prevent recognition of their marriages unconstitutional. (Amended Complaint 3, 80, Filing No. 30, at ECF p. 2, 26). This relief would encompass such criminal statutes as listed above in Part I.B. *4 The Attorney General has the broad authority to assist in the prosecution of any offense if he decides that it is in the public interest. See Ind.Code. 4616. Noting this broad authority, the court has previously found that the Attorney General is a proper party when challenging statutes regarding abortion. See Arnold v. Sendak, 416 F.Supp. 22, 23 (S.D.Ind.1976), aff'd, 429 U.S. 476 (1976) (finding [t]he Attorney General thus has broad powers in the enforcement of criminal laws of the state, and is accordingly a proper defendant.); see also GaryNorthwest Indiana Women's Services, Inc. v. Bowen, 496 F.Supp. 894 (N.D.Ind.1980) (attorney general as a party to a law challenging statute criminalizing abortion). Although Section 311111 does not specifically define criminal penalties, Indiana has criminal provisions in place to prevent individuals from marrying in violation of it. See Ind.Code 3111 117; 3111111; and 31111113. Because the Attorney General has broad powers in the enforcement of such criminal statutes, he has a sufficient connection and role in enforcing such statutes for purposes of Ex Parte Young. 209 U.S. at 157. Therefore, the court DENIES the Attorney General's motion for summary judgment on that ground. (Filing No. 55). B. Governor Pence [6] Governor Pence is sued in the Fujii and Lee cases. As the court found in Love v. Pence, another case challenging the constitutionality of Section 311111, the Governor is not a proper party because the Plaintiffs' injuries are not fairly traceable to him and cannot be redressed by him. (Love v. Pence, No. 4:14cv15RLYTAB, Filing No. 32 (S.D. Ind. June 24, 2014). Therefore, the court GRANTS the Governor's motions for summary judgment (Fujii Filing No. 44) (Lee Filing No. 41). C. Commissioner of the Indiana State Department of Revenue [7] The Fujii Plaintiffs also brought suit against the Department of Revenue Commissioner. The Commissioner claims he is the wrong party because any harms caused by him do not constitute a concrete injury. The court disagrees and finds that Plaintiffs have alleged a concrete injury by having to fill out three federal tax returns in order to file separate returns for Indiana. See e.g. Harris v. City of Zion, Lake County, Ill., 927 F.2d 1401, 1406 (7th Cir.1991) ([a]n identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.). The court finds that this is an identifiable trifle. Therefore, the court DENIES the Department of Revenue Commissioner's motion for summary judgment on that ground. (Fujii Filing No. 44). IV. The Effect of Baker v. Nelson Defendants argue that this case is barred by Baker v. Nelson. In Baker, the United States Supreme Court dismissed an appeal from the Supreme Court of Minnesota for want of a substantial federal question.409 U.S. at 810. The Supreme Court of Minnesota held that: (1) the absence of an express statutory prohibition against same-sex marriages did not mean same-sex marriages are authorized, and (2) state authorization of same-sex marriages is not required by the United States Constitution. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn.1971), aff'd, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (10 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 *5 The parties agree that the Supreme Court's ruling has the effect of a ruling on the merits. See Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 18283, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (a summary disposition affirms only the judgment of the court below, and no more may be read into [the] action than was essential to sustain the judgment.). Defendants contend that this case raises the precise issue addressed by Baker and thus binds the court to find in Defendants' favor. See Hicks v. Miranda, 422 U.S. 332, 34445, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation omitted) (the lower courts are bound ... until such time as the [Supreme] Court tells them that they are not.). The court agrees that the issue of whether same-sex couples may be constitutionally prohibited from marrying is the exact issue presented in Baker. Nevertheless, the Supreme Court created an important exception that when doctrinal developments indicate, lower courts need not adhere to the summary disposition. Id. Plaintiffs argue that three decisions in particular are such developments: Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), and thus, the court no longer must adhere to Baker. The Supreme Court decided Baker at a different time in the country's equal protection jurisprudence. The following are examples of the jurisprudence at and around the time of Baker. The Court struck down a law for discriminating on the basis of gender for the first time only one year before Baker. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Moreover, at the time Baker was decided, the Court had not yet recognized gender as a quasi- suspect classification.Regarding homosexuality, merely four years after Baker, the Supreme Court granted a summary affirmance in a case challenging the constitutionality of the criminalization of sodomy for homosexuals. Doe v. Commonwealth's Attorney for City of Richmond, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). Thus, the Supreme Court upheld the district court's finding that [i]t is enough for upholding the legislation that the conduct is likely to end in a contribution to moral delinquency. Doe v. Commonwealth's Attorney for City of Richmond, 403 F.Supp. 1199, 1202 (E.D.Va.1975), aff'd 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). Nine years later in 1985, the Eleventh Circuit found that particular summary affirmance was no longer binding. Hardwick v. Bowers, 760 F.2d 1202 (11th Cir.1985), rev'd 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). However, on review, the Supreme Court held that states were permitted to criminalize private, consensual sex between adults of the same-sex based merely on moral disapproval. See Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence, 539 U.S. at 578. For ten more years, states were free to legislate against homosexuals based merely on the majority's disapproval of such conduct. Then in 1996, the Supreme Court decided Romerthe first case that clearly shows a change in direction away from Baker. The Court held that an amendment to the Colorado Constitution, specifically depriving homosexual persons from the protection of anti-discrimination measures, violated the Equal Protection Clause. Romer, 517 U.S. at 635. The next change occurred in 2003 with Lawrence when the Supreme Court overruled Bowers, finding that the promotion of morality is not a legitimate state interest under the Equal Protection Clause and the state may not criminalize sodomy between individuals of the same sex. Lawrence, 539 U.S. at 582. *6 Finally, in the last year even more has changed in the Supreme Court's jurisprudence shedding any doubt regarding the effect of Baker. The Supreme Court granted certiorari for two cases involving the constitutionality of laws adversely affecting individuals based on sexual orientation.First, in United States v. Windsor, the Supreme Court invalidated Section 3 of The Defense of Marriage Act (DOMA), which defined marriage for purposes of federal law as only a legal union between one man and one woman. 133 S.Ct. at 2694 (quoting 1 U.S.C. 7). The Court noted that the differentiation within a state caused by DOMA demeans the couple, whose moral and sexual choices the Constitution protects. Windsor, 133 S.Ct. at 2694. Additionally, the Court found that the purpose of DOMA is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages. Id. at 2693. Second, the Supreme Court dismissed an appeal of California's prohibition on same-sex marriages, not because Baker rendered the question insubstantial, but because the law's supporters lacked standing to defend it. Hollingsworth v. Perry, 133 S.Ct. 6252 (2013). These developments strongly suggest, if not compel, the conclusion that Baker is no longer controlling and does not bar the present challenge to Indiana's laws. See Windsor v. United States, 699 F.3d 169, 178 (2d Cir.2012), aff'd, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (holding that Baker was not controlling as to the constitutionality of DOMA, reasoning that [i]n the forty Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (11 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 years after Baker, there have been manifold changes to the Supreme Court's equal protection jurisprudence and that [e]ven if Baker might have had resonance ... in 1971, it does not today). The court acknowledges that this conclusion is shared with all other district courts that have considered the issue post Windsor. See Wolf v. Walker, No. 3:14cv00064bbc, 2014 WL 2558444, 36 (W.D. Wisc. June 6, 2014); Whitewood v. Wolf, No. 1:13cv1861, 2014 WL 2058105, 46 (M.D.Penn.May 20, 2014); Geiger v. Kitzhaber, No. 6:13cv01834MC, 2014 WL 2054264, *1 n .1 (D.Or. May 19, 2014); Latta v. Otter, 1:13cv482CWD, 2014 WL 1909999, 710 (D.Idaho May 13, 2013); DeBoer v. Snyder, 973 F.Supp.2d 757, 773 n. 6 (E.D.Mich.2014); DeLeon v. Perry, 975 F.Supp.2d 632, 648 (W.D.Tex.2014) (order granting preliminary injunction); Bostic v. Rainey, 970 F.Supp.2d 456, 46970 (E.D.Va.2014); Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252, 127477 (N.D.Okla.2014); McGee v. Cole, No. 3:13cv24068, 2014 WL 321122, 810 (S.D.W.Va.Jan.29, 2014); Kitchen v. Herbert, 961 F.Supp.2d 1181, 1195 (D.Utah 2013). Finding that Baker does not bar the present action, the court turns to the merits of Plaintiffs' claims. V. Right to Marry Whom? [8] As the court has recognized before, marriage and domestic relations are traditionally left to the states; however, the restrictions put in place by the state must comply with the United States Constitution's guarantees of equal protection of the laws and due process. See Windsor, 133 S.Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)). Plaintiffs assert that Indiana's marriage laws violate those guarantees. A. Due Process Clause 1. Fundamental Right *7 [9] [10] The Due Process Clause of the Fourteenth Amendment guarantees that no state shall deprive any person of life, liberty, or property without the due process of law. U.S. Const. amend. XIV 1. The purpose of the Due Process Clause is to protect[ ] those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty.... Washington v. Glucksburg, 521 U.S. 702, 72021 (1997) (quotations and citations omitted). Because such rights are so important, an individual's fundamental rights may not be submitted to vote. DeLeon, 975 F.Supp.2d at 657 (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)). Plaintiffs assert that the State of Indiana impedes upon their fundamental right to marry, and thus, violates the Due Process Clause. [11] The parties agree that a fundamental right to marry exists; however they dispute the scope of that right. The fact that the right to marry is a fundamental right, although not explicitly stated by the Supreme Court, can hardly be disputed. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) ([D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals.); United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (concluding the Court has come to regard marriage as fundamental); Loving, 388 U.S. at 12 (The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888) (characterizing marriage as the most important relation in life and as the foundation of the family and society, without which there would be neither civilization nor progress.). Additionally, the parties agree that the right to marry necessarily entails the right to marry the person of one's choice. See Lawrence, 539 U.S. at 574 (2003) (Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.). [12] Defendants, relying on Glucksberg, argue that the fundamental right to marry should be limited to its traditional definition of one man and one woman because fundamental rights are based in history. The concept of same-sex marriage is not deeply rooted in history; thus, according to Defendants, the Plaintiffs are asking the court to recognize a new fundamental right. Plaintiffs counter that Defendants' reliance on Glucksberg is mistaken because the Supreme Court has repeatedly defined the fundamental right to marry in broad terms. [13] The court agrees with Plaintiffs. Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 430 (Cal.2008) (superseded Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (12 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 by constitutional amendment). In fact, the history of our Constitution ... is the story of the extension of constitutional rights and protections to people once ignored or excluded. United States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). The reasoning in Henry v. Himes is particularly persuasive on this point: *8 The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff's asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage ... [T]he Court consistently describes a general fundamental right to marry rather than the right to interracial marriage, the right to inmate marriage, or the right of people owing child support to marry. No. 1: 14cv129, 2014 WL 1418395, *7 (S.D.Ohio Apr.14, 2014) (emphasis added) (citing Loving, 388 U.S. at 12; Turner v. Safley, 482 U.S. 78, 9496, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Zablocki, 434 U.S. at 38386). The court finds Loving v. Virginia best illustrates that concept. In that case, the Court held that Virginia's ban on interracial marriage violated the plaintiffs' rights under the Due Process Clause. 388 U.S. at 12. The Loving Court stated [t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men, and further recognized that, marriage is one of the basic civil rights of man. Id. If the Court in Loving had looked only to the traditional approach to marriage prior to 1967, the Court would not have recognized that there was a fundamental right for Mildred and Richard Loving to be married, because the nation's history was replete with statutes banning interracial marriages between Caucasians and African Americans. Notably, the Court did not frame the issue of interracial marriage as a new right, but recognized the fundamental right to marry regardless of that traditional classification. Unfortunately, the courts have failed to recognize the breadth of our Due Process rights before in cases such as Bowers. 478 U.S. at 186, overruled by Lawrence, 539 U.S. at 578. There, the court narrowly framed the issue as whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.... Id. at 190. Not surprisingly, with the issue framed so narrowly and applying only to a small classification of people, the Court found that there was no fundamental right at issue because our history and tradition proscribed such conduct. Id. at 19294. In 2003, the Supreme Court recognized its error and reversed course. Lawrence, 539 U.S. at 567 (finding that the Bowers Court's statement of the issue discloses the Court's own failure to appreciate the extent of the liberty interest at stake.). The court found that the sodomy laws violated plaintiffs' Due Process right to engage in such conduct and intruded into the personal and private life of the individual. Id. at 578. Notably, the Court did not limit the right to a classification of certain people who had historical access to that right. Here, Plaintiffs are not asking the court to recognize a new right; but rather, [t]hey seek simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. Bostic, 970 F.Supp.2d at 472 (quoting Kitchen, 961 F.Supp.2d at 120203). The courts have routinely protected the choices and circumstances defining sexuality, family, marriage, and procreation.As the Supreme Court found in Windsor, [m]arriage is more than a routine classification for purposes of certain statutory benefits, and [p]rivate, consensual intimacy between two adult persons of the same sex ... can form but one element in a personal bond that is more enduring. Windsor, 133 S.Ct. at 2693 (quoting Lawrence, 539 U.S. at 567). The court concludes that the right to marry should not be interpreted as narrowly as Defendants urge, but rather encompasses the ability of same-sex couples to marry. 2. Level of Scrutiny *9 [14] [15] [16] [17] The level of scrutiny describes how in depth the court must review the Defendants' proffered reasons for a law. Scrutiny ranges from rational basis (the most deferential to the State) to strict scrutiny (the least deferential to the State). Defendants agree that if the court finds that the fundamental right to marry encompasses same-sex marriages, then heightened scrutiny is appropriate. (Transcript 40:917). When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Zablocki, 434 U.S. at 388. Strict scrutiny requires the government to show that the law Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (13 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 8 is narrowly tailored to a compelling government interest. See id. The burden to show the constitutionality of the law rests with the Defendants. See id. [18] [19] For strict scrutiny to be appropriate, the court must find: (1) there is a fundamental right, and (2) the classification significantly interferes with the exercise of that right. Id. First, as stated above, the court finds that the fundamental right to marry includes the right of the individual to marry a person of the same sex. Second, Section 31111 1 significantly interferes with that right because it completely bans the Plaintiffs from marrying that one person of their choosing. Therefore, Indiana's marriage laws are subject to strict scrutiny. See Bostic, 970 F.Supp.2d at 473. 3. Application [20] Section 311111, classifying same-sex couples, cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests . Zablocki, 434 U.S. at 388. Here, Defendants proffer that the state's interest in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create. The court does not weigh whether or not this is a sufficiently important interest, but will assume that it is. Defendants have failed to show that the law is closely tailored to that interest. Indiana's marriage laws are both overand under-inclusive. The marriage laws are under- inclusive because they only prevent one subset of couples, those who cannot naturally conceive children, from marrying. For example, the State's laws do not consider those post- menopausal women, infertile couples, or couples that do not wish to have children.Additionally, Indiana specifically allows first cousins to marry once they reach the age that procreation is not a realistic possibility. See Ind.Code 311112. On the other hand, Indiana's marriage laws are over-inclusive in that they prohibit some opposite-sex couples, who can naturally and unintentionally procreate, from marriage. For example, relatives closer in degree than second cousins can naturally and unintentionally procreate; however, they still may not marry. 4 Most importantly, excluding same-sex couples from marriage has absolutely no effect on opposite-sex couples, whether they will procreate, and whether such couples will stay together if they do procreate. Therefore, the law is not closely tailored, and the Defendants have failed to meet their burden. *10 The state, by excluding same-sex couples from marriage, violates Plaintiffs' fundamental right to marry under the Due Process Clause. See Wolf, 2014 WL 2558444, at * 21; Lee v. Orr, No. 1:13cv08719, 2014 WL 683680, * 2 (N.D.Ill. Feb.21, 2014) (This Court has no trepidation that marriage is a fundamental right to be equally enjoyed by all individuals of consenting age regardless of their race, religion, or sexual orientation.); Whitewood, 2014 WL 2058105 at 89; Latta, 2014 WL 1909999 at* 13; DeLeon, 975 F.Supp.2d at 659; Bostic, 970 F.Supp.2d at 483; Kitchen, 961 F.Supp.2d at 1204. B. Equal Protection Clause [21] Plaintiffs also argue that Section 311111 violates the Fourteenth Amendment's Equal Protection Clause. The Equal Protection Clause commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting U.S. Const., amend. XIV., 1). The clause must take into account the fact that governments must draw lines between people and groups. See Romer, 517 U.S. at 631. 1. Level of Scrutiny [22] [23] [24] [25] [I]f a law neither burdens a fundamental right nor targets a suspect class, [the court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end. Romer, 517 U.S. at 631. The court must insist on knowing the relation between the classification adopted and the object to be attained. Id. at 632. This is to ensure that the classification was not enacted for the purpose of disadvantaging the group burdened by the law. See id. at 633. If a law impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class then the court applies strict scrutiny. See Zablocki, 434 U.S. at 383. To survive strict scrutiny, Indiana must show that the law is narrowly tailored to a compelling government interest. See id. at 388. As indicated in Part V.A. above, the court finds that the law impermissibly interferes with a fundamental right, and Defendants failed to satisfy strict scrutiny. Nevertheless, the court will evaluate the Equal Protection claim independent Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (14 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 9 from that conclusion and as an alternative reason to find the marriage law unconstitutional. a. Form of Discrimination Plaintiffs argue that Indiana's marriage laws discriminate against individuals on the basis of gender and sexual orientation. i. Gender [26] According to Plaintiffs, Indiana's marriage laws discriminate against them based on their gender. For example, if Rae Baskin was a man she would be allowed to marry Esther Fuller; however, because she is a female, she cannot marry Esther. Additionally, Plaintiffs allege the law enforces sex stereotypes, requiring men and women to adhere to traditional marital roles. See e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Defendants respond that the laws do not discriminate on the basis of gender because the laws do not affect any gender disproportionately. Plaintiffs respond that a mere equal application of the law was rejected by the Court in Loving. *11 The court is not persuaded by Plaintiffs' arguments and finds Loving to be distinguishable on this point. Unlike Loving, where the court found evidence of an invidious racial discrimination, the court finds no evidence of an invidious gender-based discrimination here. See Geiger, 2014 WL 2054264 at * 7. Moreover, there is no evidence that the purpose of the marriage laws is to ratify a stereotype about the relative abilities of men and women or to impose traditional gender roles on individuals. See id.; see also Bishop, 962 F.Supp.2d at 1286. ii. Sexual Orientation [27] Plaintiffs also argue that Indiana's marriage laws classify individuals based on their sexual orientation, because they prevent all same-sex couples from marrying the person of their choice. Defendants respond that the marriage laws do not discriminate against same-sex couples because they may marry just like opposite-sex couples may marry; the law merely impacts them differently. The court rejects this notion.As the court stated above, the right to marry is about the ability to form a partnership, hopefully lasting a lifetime, with that one special person of your choosing. Additionally, although Indiana previously defined marriage in this manner, the title of Section 311111Same sex marriages prohibitedmakes clear that the law was reaffirmed in 1997 not to define marriage but to prohibit gays and lesbians from marrying the individual of their choice. Thus, the court finds that Indiana's marriage laws discriminate based on sexual orientation. b. Level of Scrutiny The Seventh Circuit applies rational basis review in cases of discrimination based on sexual orientation. See Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 95051 (7th Cir.2002) (Homosexuals are not entitled to any heightened protection under the Constitution.). The Seventh Circuit relied on Bowers and Romer for this conclusion. Plaintiffs argue that since Bowers has since been overruled, the court is no longer bound by Schroeder. The court disagrees and believes it is bound to apply rational basis because one of the cases the Court relied on in Schroeder, e.g. Romer, is still valid law. The court agrees with Plaintiffs that it is likely time to reconsider this issue, especially in light of the Ninth Circuit's decision in SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir.2014) (interpreting Windsor to mean that gay and lesbian persons constitute a suspect class). However, the court will leave that decision to the Seventh Circuit, where this case will surely be headed. The court will, therefore, apply rational basis review. c. Application [28] Defendants rely on Johnson v. Robison for the proposition that when ... the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute's classification of beneficiaries and nonbeneficiaries is invidiously discriminatory. 415 U.S. 361, 383, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). According to Defendants, Johnson means that they must only show that there is a rational reason to provide the right of marriage to opposite- sex couples, not that there is a rational basis to exclude. In essence, Defendants assert that the opposite-sex couples have distinguishing characteristics, the ability to naturally and unintentionally procreate as a couple, that allow the State to treat them differently from same-sex couples. *12 Plaintiffs, on the other hand, allege that the primary purpose of the statute is to exclude same-sex couples from marrying and thus the Defendants must show a rational basis to exclude them. The court agrees with Plaintiffs. According to Plaintiffs, the purpose is evident by the timing of the statute, which was passed in an emergency session near the time that Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (15 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 10 DOMA was passed and immediately after and in response to a Hawaiian court's pronouncement in Baehr v. Miike, CIV. No. 911394, 1996 WL 694235 (Haw.Cir.Ct. Dec. 3, 1996), aff'd 87 Hawaii 34, 950 P.2d 1234 (Haw.1997), that same- sex couples should be allowed to marry. See Family Law MarriageSame Sex Marriages Void, 1997 Ind. Legis. Serv. P.L. 1981997 (H.E.A.1265). Because the effect of the law is to exclude and void same-sex marriages, the Plaintiffs argue that the court should analyze whether there is a rational basis to exclude same-sex marriages. Additionally, Plaintiffs assert they are similar in all relevant aspects to opposite-sex couples seeking to marrythey are in long-term, committed, loving relationships and some have children. [29] The Johnson case concerned a challenge brought by a conscientious objector seeking to declare the educational benefits under the Veterans' Readjustment Benefits Act of 1966 unconstitutional on Equal Protection grounds. 415 U.S. at 364. In reviewing whether or not the classification was arbitrary, the Court looked to the purpose of that Act and found that the legislative objective was to (1) make serving in the Armed Forces more attractive and (2) assist those who served on active duty in the Armed Forces in readjusting to civilian life. See id. at 376377. The Court found that conscientious objectors were excluded from the benefits that were offered to the veterans because the benefits could not make service more attractive to a conscientious objector and the need to readjust was absent. See id. The Supreme Court found that the two groups were not similarly situated and thus, Congress was justified in making that classification. See id. at 38283. The court agrees with Plaintiffs that they are similarly situated in all relevant aspects to opposite-sex couples for the purposes of marriage. Also of great importance is the fact that unlike the statute at issue in Johnson, [m]arriage is more than a routine classification for purposes of certain statutory benefits. Windsor, 133 S.Ct. at 2693. In fact having the status of married comes with hundreds of rights and responsibilities under Indiana and federal law. See 614 Reasons Why Marriage Equality Matters in Indiana, Fujii, Filing No. 462). As the court in Kitchen stated in analyzing the Equal Protection claim before it: [T]he State poses the wrong question.The court's focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest. No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual's fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. Here, the challenged statute does not grant marriage benefits to opposite-sex couples. 5 The effect of [Utah's marriage ban] is only to disallow same-sex couples from gaining access to these benefits. The court must therefore analyze whether the State's interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying. *13 961 F.Supp.2d at 121011 (reference and footnote added). Like Utah's laws, the effect of Indiana's marriage laws is to exclude certain people from marrying that one special person of their choosing. This is evident by the title of Section 311111Same sex marriages prohibited. Consequently, the question is whether it is rational to treat same-sex couples differently by excluding them from marriage and the hundreds of rights that come along with that marriage. See e.g. City of Cleburne, Tex., 473 U.S. at 449. The court finds that there is no rational basis to exclude same-sex couples. The purpose of marriageto keep the couple together for the sake of their childrenis served by marriage regardless of the sexes of the spouses. In order to fit under Johnson's rationale, Defendants point to the one extremely limited difference between opposite-sex and same-sex couples, the ability of the couple to naturally and unintentionally procreate, as justification to deny same- sex couples a vast array of rights. The connection between these rights and responsibilities and the ability to conceive unintentionally is too attenuated to support such a broad prohibition. See Romer, 517 U.S. at 635. Furthermore, the exclusion has no effect on opposite-sex couples and whether they have children or stay together for those children.Defendants proffer no reason why excluding same- sex couples from marriage benefits opposite-sex couples. The court concludes that there simply is no rational link between the two. See Tanco, 2014 WL 997525 at * 6; see Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (16 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 11 also Bishop, 962 F.Supp.2d at 129093 (finding there is no rational link between excluding same-sex marriages and steering naturally procreative relationships into marriage, in order to reduce the number of children born out of wedlock and reduce economic burdens on the State); see also DeBoer, 973 F.Supp.2d at 77172 (noting that prohibiting same-sex marriages does not stop [gay men and lesbian women] from forming families and raising children.Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.). VI. Recognition of Out-of-state Marriages Defendants concede that whether Indiana can refuse to recognize out-of-state, same-sex marriages turns entirely on whether Indiana may enforce Section A. Because the court finds that Indiana may not exclude same-sex couples from marriage, the court also finds it cannot refuse to recognize out-of-state, same-sex marriages. See e .g. Loving, 388 U.S. at 4, 11. Nevertheless, the court finds that Section B violates the Equal Protection Clause independent of its decision regarding Section A. [30] The parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages. Thus, the question is whether that difference violates the Equal Protection Clause. In Windsor, the Supreme Court concluded that by treating same-sex married couples differently than opposite-sex married couples, Section 3 of DOMA violate[d] basic due process and equal protection principles applicable to the Federal Government . 133 S.Ct. at 2693. The Eastern District of Kentucky found two guiding principles from Windsor that strongly suggest the result here. See Bourke v. Beshear, No. 3:13cv750H, 2014 WL 556729, * 7 (W.D. Ky. Feb 12, 2014). First, the court should look to the actual purpose of the law. Id. The second principle is that such a law demeans the couple, whose moral and sexual choices the Constitution protects. Id. (quoting Windsor, 133 S.Ct. at 2694). *14 The purpose of the law is to prevent the recognition of same-sex marriage in Indiana, which Plaintiffs assert was motivated by animus. If Section 311111 was in fact motivated by animus, it violates the principles of the Equal Protection Clause. See Romer, 517 U.S. at 63335 ([I]f the constitutional conception of equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate state interest.) (emphasis in original) (quoting Dep't of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). Section 311111, like DOMA, was passed during the time that Hawaii courts were deciding whether the United States Constitution required it to allow same-sex marriages. According to the bill's author, his intent [was] to clarify present Indiana law and strengthen it. Barb Albert, Same-sex Marriage Takes Hit in Senate, Indianapolis Star, Feb. 11, 1997, at B2. He did not see the statute as denying rights, because he considered marriage to be a privilege, rather than a right. Id. Opponents of the bill saw it as inflaming the biases and prejudices of individuals, thumbing your nose at the Constitution, and legislat[ing] hate. Id.; see also Stuart A. Hirsch, Ban on Gay Marriages to go to Governor, Indianapolis Star, Apr. 26, 1997, at B 1. Additionally, Section 311111 is an unusual law for Indiana to pass. As described above, in Indiana [t]he validity of a marriage depends upon the law of the place where it occurs. This includes recognizing marriages between first cousins despite the fact that they cannot marry in Indiana unless they are over 65 years of age. See Mason v. Mason, 775 N.E.2d 706, 709 (Ind.Ct.App.2002). The State of Indiana chose one group to single out for disparate treatment. The State's laws place same-sex marriages in a second class category, unlike other marriages performed in other states. Thus, like the Supreme Court in Windsor, this court can conclude that this law is motivated by animus, thus violating the Equal Protection Clause. Even if it were not, the law fails rational basis review. Defendants proffer that the state refuses to recognize same- sex marriages because it conflicts with the State's philosophy of marriagethat is that marriage is to ameliorate the consequences of unintended children.Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children.Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages. Therefore, Part B violates the Fourteenth Amendment's Equal Protection Clause. See Tanco v. Haslem, No. 3:13cv01159, 2014 WL 997525 (M.D.Tenn.Mar.14, 2014); see also Bourke, 2014 WL 556729. VII. Conclusion The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinionslaws prohibiting the celebration and recognition Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (17 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 12 of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriagenot a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such. Today, the injustice that [we] had not earlier known or understood ends. Windsor, 133 S.Ct. at 2689 (citing Marriage Equality Act, 2011 N.Y. Laws 749). Because [a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence, 539 U.S. at 579. *15 Therefore, the court finds as follows: 1. The Baskin Plaintiffs' motion for summary judgment (No. 1:14cv355, Filing No. 38) is GRANTED; 2. The Baskin Defendants' motion for summary judgment (No. 1:14cv355, Filing No. 55) is DENIED; 3. The Baskin Plaintiffs' motion to consolidate preliminary injunction proceedings with final trial on the merits (No. 1:14cv355, Filing No. 37) and the Baskin Defendants' motion for stay of the preliminary injunction (No. 1:14 cv355, Filing No. 68) are DENIED as moot. 4. The Fujii Plaintiffs' motion for summary judgment (No. 1:14cv404, Filing No. 33) is GRANTED in part for all Defendants except Governor Pence and DENIED in part as to Governor Pence; 5. The Fujii Defendants' motion for summary judgment (No. 1:14cv404, Filing No. 44) is GRANTED in part for Governor Pence and DENIED in part for the other Defendants; 6. The Fujii Plaintiffs' motion for preliminary injunction (No. 1:14cv404, Filing No. 23) and motion to consolidate preliminary injunction proceedings with final trial on the merits (No. 1:14cv404, Filing No. 24) are DENIED as moot. 7. The Lee Plaintiffs' motion for summary judgment (No. 1:14cv406, Filing No. 27) is GRANTED in part for all Defendants except Governor Pence and DENIED in part as to Governor Pence; 8. The Lee Defendants' motion for summary judgment (No. 1:14cv406, Filing No. 41) is GRANTED in part for Governor Pence and DENIED in part for the other Defendants; 9. The Lee Plaintiffs' motion for preliminary injunction (No. 1:14cv406, Filing No. 29), motion to consolidate preliminary injunction proceedings with final trial on the merits (No. 1:14cv406, Filing No. 31), and the Lee Defendants' motion for extension of time (No. 1:14cv 406, Filing No. 53) are DENIED as moot. ORDER Pursuant to the reasoning contained above, the court DECLARES that Indiana Code 311111(a), both facially and as applied to Plaintiffs, violates the Fourteenth Amendment's Due Process Clause and Equal Protection Clause. Additionally, the court DECLARES that Indiana Code 311111(b), both facially and as applied to Plaintiffs, violates the Fourteenth Amendment's Equal Protection Clause. Because this is a facial challenge, same- sex couples, who would otherwise qualify to marry in Indiana, have the right to marry in Indiana. Having found that Indiana Code 311111 and the laws in place enforcing such violate the Plaintiffs' rights under the Due Process Clause and the Equal Protection Clause, Defendants and their officers, agents, servants, employees and attorneys, and those acting in concert with them are PERMANENTLY ENJOINED from enforcing Indiana Code Section 311111 and other Indiana laws preventing the celebration or recognition of same-sex marriages. Additionally, Defendants and officers, agents, servants, employees and attorneys, and those acting in concert with them, are PERMANENTLY ENJOINED from enforcing or applying any other state or local law, rule, regulation or ordinance as the basis to deny marriage to same- sex couples otherwise qualified to marry in Indiana, or to deny married same-sex couples any of the rights, benefits, privileges, obligations, responsibilities, and immunities that accompany marriage in Indiana. *16 Specifically, this permanent injunction requires the following, and the court ORDERS the following: 1. The Defendant Clerks, their officers, agents, servants, employees and attorneys, and all those acting in concert Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (18 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 13 with them, are PERMANENTLY ENJOINED from denying a marriage license to a couple because both applicants for the license are the same sex. Thus they must act pursuant to their authority under Indiana Code Chapter 31114 and issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Indiana law; 2. The Attorney General, Greg Zoeller, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from prosecuting or assisting in the prosecution, using his authority from Indiana Code 4616, of the following: a. same-sex couples who fill out the current marriage license application where the spaces provided only allow for a male and female (Ind.Code 3111111 and 31 11113), b. clerks who grant the marriage licenses to qualified same- sex couples (Ind.Code 3111114), or c. those who choose to solemnize same-sex marriages (Ind.Code 3111115 and 3111117). 3. William C. Vanness II, M.D., the Commissioner of the Indiana State Department of Health, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to: a. Act pursuant to their authority under Indiana Code 16 371 to change the death certificate form to allow for same-sex spouses, b. Act pursuant to their authority under Indiana Code 16 373 to issue death certificates listing same-sex spouses, and c. Act pursuant to their authority under Indiana Code 311144 to revise the marriage license application to allow for same-sex applicants. 4. The Commissioner of the Indiana State Department of Revenue, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to exercise their authority under Indiana Code 68.13 to revise the filing guidelines to allow and process joint tax returns for same-sex married couples as they do for opposite- sex married couples. 5. The Board of Trustees of the Indiana Public Retirement System and Steve Russo, the Executive Director of the Indiana Public Retirement System, and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to administer the Pension Fund pursuant to Indiana Code Chapters 510.53, 510.54, and 5 10.56, so as to provide the same benefits for all married couples, regardless of whether the couples are of the opposite sex or the same sex. This Order does not apply to Governor Pence, who the court found was not a proper party. This Order takes effect on the 25th day of June 2014. SO ORDERED. 1 Filing Numbers will refer to those documents in Baskin v. Bogan unless stated otherwise. 2 The State Department of Health is charged under Ind.Code 311144(c) with developing a uniform application for marriage licenses. 3 In an official opinion concerning the authority of clerks to issue marriage licenses and only referencing one occasion where they cannot -same-sex marriages, the Attorney General appeared to consider inaccurate physical information to include gender. See 2004 Ind. Op. Att'y Gen.No. 4 (Apr. 29, 2004). The Attorney General noted that a clerk can be charged with a misdemeanor for issuing a marriage license knowing the information concerning the physical condition of the applicant is false. See id. 4 The court does not evaluate the constitutionality of such laws, but merely uses this example to show that the present law would be over-inclusive in regard to Defendants' stated reason for marriage. 5 Section 3014.1 of the Utah Code, provides: (1) (a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter. (b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and woman because they are married. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (19 of 518) Baskin v. Bogan, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 14 Amendment 3 provides: (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect. End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (20 of 518) Only the Westlaw citation is currently available. United States Court of Appeals, Tenth Circuit. Mary BISHOP and Sharon Baldwin, PlaintiffsAppellees, and Susan G. Barton and Gay E. Phillips, PlaintiffsAppellees/CrossAppellants, v. Sally Howe SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, DefendantAppellant/CrossAppellee, United States of America, ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America, Defendant, and Bipartisan Legal Advisory Group of the U.S. House of Representatives; Thad Balkman; Oklahoman's for Protection of Marriage, Interven- orsDefendants. Nos. 145003, 145006. July 18, 2014. Background: Lesbian couples brought action against various government officials claiming that Defense of Marriage Act (DOMA) section which functioned to deprive same-sex married couples of federal benefits, and amendment to Oklahoma con- stitution limiting marriage to opposite-sex couples violated due process and equal protection. Defend- ants' motion to dismiss was granted in part and denied in part, 447 F.Supp.2d 1239. State appealed. The Court of Appeals, Terrence L. O'Brien, Circuit Judge, 333 Fed.Appx. 361, 2009 WL 1566802, re- versed in part. On remand, plaintiffs filed amended complaint adding the Attorney General and county's court clerk as defendants, and the com- plaint was dismissed as to state of Oklahoma, 2009 WL 4505951. Plaintiffs moved for summary judg- ment and for entry of final judgment, court clerk moved for summary judgment, and Attorney Gener- al moved to dismiss. The United States District Court for the Northern District of Oklahoma, Ter- ence C. Kern, J., 962 F.Supp.2d 1252, granted mo- tion in part and denied motion in part. Parties cross- appealed. Holdings: The Court of Appeals, Lucero, Circuit Judge, held that: (1) couple established redressability, as required for standing to challenge amendment's definition of marriage; (2) constitutional amendment prohibiting same-sex marriage was not narrowly tailored; (3) court clerk's affidavit constituted new evidence sufficient to overcome law of the case determina- tion that couples had standing to bring action against clerk under amendment's recognition prong; (4) Court of Appeals did not have obligation to con- sider forfeited severability argument; and (5) Court of Appeals would not exercise its discre- tion to hear same-sex couples' forfeited severability issue. Affirmed. Holmes, Circuit Judge, filed concurring opin- ion. Kelly, Circuit Judge, filed opinion concurring in part and dissenting in part. West Headnotes [1] Constitutional Law 92 0 92 Constitutional Law Under Oklahoma law, a constitutional amend- ment takes the place of all the former laws existing upon the subject with which it deals. [2] Federal Courts 170B 0 170B Federal Courts Court of Appeals reviews a district court's Page 1 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (21 of 518) standing determinations de novo. [3] Federal Civil Procedure 170A 0 170A Federal Civil Procedure To establish standing, a plaintiff must show: (1) it has suffered an injury in fact that is con- crete and particularized and actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculat- ive, that the injury will be redressed by a favorable decision. [4] Federal Civil Procedure 170A 0 170A Federal Civil Procedure A party may raise the issue of standing for the first time at any stage of the litigation, including on appeal. [5] Federal Civil Procedure 170A 0 170A Federal Civil Procedure Redressability required to establish standing is satisfied when a favorable decision relieves an in- jury, but a decision does not need to relieve every injury. [6] Federal Civil Procedure 170A 0 170A Federal Civil Procedure Same-sex couple established redressability, as required for standing to challenge amendment to Oklahoma constitution limiting marriage to oppos- ite-sex couples as violative of due process and equal protection, despite their failure to challenge state statute defining marriage as between one man and one woman; statute, which was enacted prior to constitutional amendment was not enforceable in- dependent of amendment. U.S.C.A. Const.Amend. 14; Okla. Const. art. 2, 35; Okla. Stat. tit. 43, 3(a). [7] Statutes 361 0 361 Statutes A time-honored rule in Oklahoma teaches that a revising statute, or a constitutional amendment, takes the place of all the former laws existing upon the subject with which it deals; this is true even though it contains no express words to that effect. [8] Statutes 361 0 361 Statutes Under Oklahoma law, when a constitutional amendment addresses the same subject as a statute, replacement is not repeal by implication and occurs even absent express words. [9] Federal Courts 170B 0 170B Federal Courts If the United States Supreme Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise. [10] Constitutional Law 92 0 92 Constitutional Law Assuming that serving children's interest in be- ing raised by their biological parents was a compel- ling governmental goal, Oklahoma's constitutional amendment prohibiting same-sex marriage was not narrowly tailored to achieve that end, for purposes of same-sex couples' Fourteenth Amendment chal- lenge to Oklahoma's prohibition as violative of their due process and equal protection rights; Ok- lahoma overlooked the interests of children being raised by their biological parents in a wide variety of contexts, yet failed to explain how same-sex marriage posed a unique threat such that it must be treated differently from those other circumstances, and Oklahoma's ban on same-sex marriage swept too broadly in that it denied a fundamental right to all same-sex couples who sought to marry or to have their marriages recognized regardless of their child-rearing ambitions. U.S.C.A. Const.Amend. 14 ; Okla. Const. art. 2, 35. [11] Courts 106 0 106 Courts Page 2 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (22 of 518) Under the law of the case doctrine, when a court rules on an issue of law, the ruling should continue to govern the same issues in subsequent stages in the same case. [12] Courts 106 0 106 Courts Law of the case doctrine pertains both to rul- ings by district courts and by previous panels in pri- or appeals in the same litigation. [13] Courts 106 0 106 Courts It takes exceptionally narrow circumstances for the court not to follow the law of the case when the doctrine applies. [14] Courts 106 0 106 Courts Prior implicit determination by Court of Ap- peals that same-sex couples had standing to bring action against county's court clerk challenging fed- eral constitutionality of Oklahoma constitutional amendment prohibiting recognition of same-sex marriages was law of the case. Okla. Const. art. 2, 35. [15] Courts 106 0 106 Courts Law of the case doctrine applies to issues that are resolved implicitly. [16] Courts 106 0 106 Courts Law of the case doctrine is never off the table solely because an issue is jurisdictional. [17] Courts 106 0 106 Courts While prior implicit determination by Court of Appeals that same-sex couples had standing to bring action against county's court clerk challen- ging Oklahoma constitutional amendment prohibit- ing recognition of same-sex marriages as violative of their due process and equal protection rights was law of the case, court clerk's affidavit stating that she had no authority to recognize any out-of-state marriage or marriage license, regardless of whether it was issued to an opposite-sex or same-sex couple, constituted new evidence sufficient to overcome the doctrine; clerk was not party to the case at time of prior determination by Court of Appeals, and thus could not have offered such evidence earlier, and affidavit established couples' lack of Article III standing as to their recognition claim against clerk. U.S.C.A. Const.Amend. 14; Okla. Const. art. 2, 35. [18] Courts 106 0 106 Courts As a practice rather than a rigid rule, the law of the case is subject to three narrow exceptions: (1) when new evidence emerges; (2) when intervening law undermines the original decision; and (3) when the prior ruling was clearly erroneous and would, if followed, create a manifest injustice. [19] Courts 106 0 106 Courts An affidavit is properly categorized as new evidence under the law of the case where it consti- tutes admissible evidence. [20] Courts 106 0 106 Courts The previously-available-evidence bar is ap- plied when the party seeking to circumvent the law of the case had a chance to introduce the evidence in the prior proceedings and failed to exploit that chance. [21] Federal Civil Procedure 170A 0 170A Federal Civil Procedure Each plaintiff must have standing to seek each form of relief in each claim. Page 3 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (23 of 518) [22] Federal Civil Procedure 170A 0 170A Federal Civil Procedure In order to demonstrate Article III standing, a plaintiff must show: (1) that she has suffered a con- crete and particular injury in fact that is either actu- al or imminent; (2) the injury is fairly traceable to the alleged actions of the defendant; and (3) the in- jury will likely be redressed by a favorable de- cision. U.S.C.A. Const. Art. 3, 2, cl. 1. [23] Constitutional Law 92 0 92 Constitutional Law The question of whether an unconstitutional provision of state law is severable from the re- mainder of the enactment is a matter of state law. [24] Constitutional Law 92 0 92 Constitutional Law Question of whether a severability analysis is triggered by the facts of the case is a matter of state law. [25] Federal Courts 170B 0 170B Federal Courts Court of Appeals did not have obligation to consider forfeited severability argument in action challenging Oklahoma constitutional amendment barring same-sex marriage. Okla. Const. art. 2, 35 . [26] Federal Courts 170B 0 170B Federal Courts Decision regarding what issues are appropriate to entertain on appeal in instances of lack of preser- vation is discretionary. [27] Federal Courts 170B 0 170B Federal Courts Where a litigant attempts to rely upon a for- feited theory, the failure to argue for plain error and its application on appeal surely marks the end of the road for an argument for reversal not first presented to the district court. [28] Federal Courts 170B 0 170B Federal Courts Absent any argument for plain error, Court of Appeals would not exercise its discretion to hear same-sex couples' forfeited severability issue in ac- tion challenging Oklahoma constitutional amend- ment barring same-sex marriage. Okla. Const. art. 2, 35. Appeals from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:04CV00848TCKTLW).James A. Campbell, Byron J. Babione and David Austin R. Nimocks, Alliance Defending Freedom, Scottsdale, AZ, and John David Luton, Assistant District Attorney, Dis- trict Attorney's Office, Tulsa, OK, with him on the briefs, for DefendantAppellant/CrossAppellee. Don G. Holladay, James E. Warner III, Holladay & Chilton PLLC, Oklahoma City, OK, and Joseph T. Thai, Norman, OK, with him on the briefs, for PlaintiffsAppellees/CrossAppellants. FN* Before KELLY, LUCERO, and HOLMES, Circuit Judges. LUCERO, Circuit Judge. *1 This appeal was brought by the Court Clerk for Tulsa County, Oklahoma, asking us to overturn a decision by the district court declaring unenforce- able the Oklahoma state constitutional prohibition on issuing marriage licenses to same-sex couples. It followed quickly on the heels of an analogous ap- peal brought by State of Utah officials requesting similar relief. Recognizing that the ruling in the Utah case would likely control the disposition of her appeal, the Oklahoma appellant asked that we assign these cases to the same panel. Our court did so. Preliminary to reaching the merits, we are Page 4 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (24 of 518) presented with two arguments challenging the plaintiffs' standing. The first challenges whether plaintiffs may attack state constitutional provisions without simultaneously attacking state statutes to the same effect. The second challenges whether the Court Clerk is a proper defendant as to the non- recognition portion of the Oklahoma constitutional prohibition. [1] We hold that plaintiffs possess standing to directly attack the constitutionality under the United States Constitution of Oklahoma's same-sex marriage ban even though their claim does not reach Oklahoma's statutory prohibitions on such marriages. Under Oklahoma law, a constitutional amendment takes the place of all the former laws existing upon the subject with which it deals. Fent v. Henry, 257 P.3d 984, 992 n. 20 (Okla.2011) (per curiam) (quotation omitted). Because the statutory prohibitions are subsumed in the challenged consti- tutional provision, an injunction against the latter's enforcement will redress the claimed injury. An earlier appeal of this same case involving the standing inquiry led to a decision by a panel of our court that dismissed proceedings brought against the Governor and Attorney General of Ok- lahoma. That panel ruled that recognition of mar- riages is within the administration of the judiciary. Bishop Okla. ex rel. Edmondson, 333 F. App'x 361, 365 (10th Cir.2009) (unpublished) (Bishop I ).We conclude that the law of the case doctrine applies to Bishop I, but that the doctrine is overcome by new evidence demonstrating that the Tulsa County Court Clerk could not redress the non-recognition injury, thereby depriving Gay Phillips and Susan Barton (the Barton couple) of standing to sue. Our merits disposition is governed by our rul- ing in Kitchen Herbert, No 134178, 2014 U.S.App. LEXIS 11935 (10th Cir. June 25, 2014). In that companion case, we held that: (1) plaintiffs who wish to marry a partner of the same sex or have such marriages recognized seek to exercise a fundamental right; and (2) state justifications for banning same-sex marriage that turn on the procre- ative potential of opposite-sex couples do not satis- fy the narrow tailoring test applicable to laws that impinge upon fundamental liberties. Exercising jur- isdiction under 28 U.S.C. 1291, and governed by our ruling in Kitchen, we affirm. I Mary Bishop and Sharon Baldwin are in a long-term committed relationship and seek to marry. They live together in Tulsa County, Ok- lahoma, where they both work for the Tulsa World newspaper. Bishop is a sixth-generation Oklahoman and Baldwin is at least a fourth-generation Ok- lahoman. They jointly own their home and other property. *2 In March 2000, the couple exchanged vows in a church-recognized commitment ceremony. They feel, however, that this ceremony fails to signify the equality of their relationship, and that marriage conveys a level of commitment or re- spect that is not otherwise available. Bishop and Baldwin sought a marriage license from the Tulsa County Court Clerk in February 2009, but were denied because they are both women. The couple identifies several discrete harms they have suffered because of their inability to marry, including $1,300 in legal fees to prepare a power of attorney form and healthcare proxies. Moreover, they ex- plain that their inability to marry under Oklahoma law is demeaning and signals to others that they should not respect our relationship. Phillips and Barton have been in a committed relationship since 1984. They took part in a civil union ceremony in Vermont in 2001, were married in Canada in 2005, and wed again in California in 2008. The couple jointly owns a company that provides training and assistance to non-profit agen- cies that conduct youth out-of-home care. Barton also teaches classes at Tulsa Community College, including a course titled Building Relationships. Phillips and Barton have suffered adverse fed- eral tax consequences as a result of the Defense of Marriage Act (DOMA), as well as adverse state Page 5 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (25 of 518) tax consequences stemming from Oklahoma's re- fusal to recognize their marital status. They say that having their relationship recognized as a marriage should have been a dream come true. Instead, the State of Oklahoma has said ours is not a real marriage, but something inferior to the relation- ships of married opposite sex couples. In November 2004, plaintiffs Bishop, Baldwin, Barton, and Phillips filed suit against the Oklahoma Governor and Attorney General, challenging Ok- lahoma's state constitutional ban on same-sex mar- riage. The Oklahoma prohibition, known as State Question 711 (SQ 711), provides: A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmar- ried couples or groups. B. marriage between persons of the same gender performed in another state shall not be recog- nized as valid and binding in this state as of the date of the marriage. C. Any person knowingly issuing a marriage li- cense in violation of this section shall be guilty of a misdemeanor. Okla. Const. art. 2, 35. The suit also named the United States President and Attorney General as defendants in a constitutional challenge to DOMA. A motion to dismiss filed by the Governor and State Attorney General was denied by the district court in 2006. That decision was appealed to this court. In 2009, a panel of our court concluded that [b]ecause the plaintiffs failed to name a defendant having a causal connection to their alleged injury that is redressable by a favorable court decision, ... the Couples do not have standing. Bishop I, 333 F. App'x at 364. The panel held that recognition of marriages is within the administration of the judi- ciary, and thus the executive branch of Ok- lahoma's government has no authority to issue a marriage license or record a marriage. Id. at 365. *3 On remand, the district court permitted the plaintiffs to file an amended complaint naming as a defendant the State of Oklahoma, ex rel. Sally HoweSmith, in her official capacity as Court Clerk for Tulsa County. The court granted Ok- lahoma's motion to dismiss the state as a nominal party, leaving Smith as the sole state defendant. The amended complaint also asserted challenges to 2 and 3 of DOMA against the United States ex rel. Eric Holder. However, in February 2011, the United States notified the district court that it would no longer defend 3 of DOMA on the mer- its. The Bipartisan Legal Advisory Group was per- mitted to intervene to defend the law. The case then progressed to the summary-judgment stage. Smith submitted an affidavit describing her duties as they related to the plaintiffs' allegations. In that affi- davit, Smith swore that she had no authority to re- cognize or record a marriage license issued by an- other state in any setting, regardless of whether the license was issued to an opposite-sex or a same-sex couple. After the Supreme Court issued its decision in United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the district court entered an opinion and order disposing of the United States' motion to dismiss, as well as Ok- lahoma and plaintiffs' cross-motions for summary judgment. See Bishop v. United States ex rel. Hold- er, 962 F.Supp.2d 1252, 1263 (N.D.Okla.2014) ( Bishop II ).The district court concluded that: (1) Phillips and Barton lacked standing to challenge 2 of DOMA because state law, rather than that provi- sion, resulted in non-recognition of their marriage, id. at 126368; (2) any challenge to 3 of DOMA was moot in light of the Windsor decision, id. at 126972; (3) Phillips and Barton lacked standing to challenge the non-recognition portion of the Ok- lahoma amendment, Part B, because Smith is not involved in the recognition of out-of-state mar- riages, as established by her summary-judgment af- Page 6 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (26 of 518) fidavit, id. at 127273; and (4) Part A of SQ 711 vi- olates the Equal Protection Clause, id. at 128196. The court permanently enjoined enforcement of Part A. Id. at 1296. The decision, however, was stayed pending final disposition of any appeal. Id. Smith timely appealed the district court's mer- its ruling as to Part A. Phillips and Barton cross- appealed the district court's conclusion that they lack standing to challenge Part B. The DOMA chal- lenges are not at issue in this appeal. II A [2][3][4] Smith contends that Bishop and Bald- win (the Bishop couple) lack standing to chal- lenge Part A of SQ 711 because they did not simul- taneously contest the constitutionality of a state statute that bars same-sex couples from marrying. We review a district court's standing determinations de novo. See Cressman v. Thompson, 719 F.3d 1139, 1144 (10th Cir.2013). To establish standing, a plaintiff must show: (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or im- minent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be re- dressed by a favorable decision. *4 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 18081, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Although the Bishop couple's standing was not raised below, a party may raise the issue of standing for the first time at any stage of the litigation, including on appeal. New Eng. Health Care Emps. Pension Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir.2008). [5] The Bishop couple has not established re- dressability, Smith argues, because a second, un- challenged legal obstacle bars their marriage. Under Okla. Stat. tit. 43, 3(a), which was not properly put at issue below, [a]ny unmarried person who is at least eighteen (18) years of age and not otherwise disqualified is capable of contracting and consent- ing to marriage with a person of the opposite sex. Id. Although the district court enjoined enforcement of Part A, it did not enjoin operation of the statute. See Bishop II, 962 F.Supp.2d at 1296. Because the statute permits marriage only between members of the opposite sex, Smith argues that the Bishop couple's injury-their inability to marrywill not be redressed by an injunction against SQ 711 alone. FN1 [R]edressability is satisfied when a favorable decision relieves an injury, but a decision does not need to relieve every injury. Consumer Data In- dus. Ass'n v. King, 678 F.3d 898, 905 (10th Cir.2012) (emphasis omitted). In support, Smith asserts that several courts have concluded that plaintiffs lack standing under circumstances somewhat similar to the present mat- ter. In White v. United States, 601 F.3d 545 (6th Cir.2010), a group of plaintiffs challenged the fed- eral Animal Welfare Act (AWA), which restric- ted various activities associated with animal fight- ing that involve interstate travel and commerce, but did not (and does not) itself prohibit animal fight- ing, including cockfighting. Id. at 549. All fifty states, however, have prohibited cockfighting under state law. Id. The plaintiffs claimed that they had suffered economic injuries as a result of the federal statute's ban, including a decreased market for fighting birds. Id. at 54950. The Court concluded that these allegations did not support standing: Cockfighting is banned to a greater or lesser de- gree in all fifty states and the District of Columbia. Thus, while economic injuries may constitute an injury-in-fact for the purposes of Article III standing, the plaintiffs' alleged eco- nomic injuries due to restrictions on cockfighting are not traceable only to the AWA. Nor would these injuries be redressed by the relief plaintiffs seek, since the states' prohibitions on cockfight- ing would remain in place notwithstanding any action we might take in regard to the AWA. Id. at 552 (citations omitted). Page 7 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (27 of 518) We are referred to numerous sign ordinance cases holding that a plaintiff whose sign permit applications were denied on the basis of one provi- sion in a county's sign ordinance, but which could have been denied on the basis of some alternate, but unchallenged regulation, does not have a redress- able injury. Maverick Media Grp., Inc. v. Hills- borough Cnty., 528 F.3d 817, 820 (11th Cir.2008) (collecting cases). In Maverick, for example, the court ruled that a court order barring enforcement of a county's ban on billboards would not aid the plaintiff because the signs it sought to build were also prohibited by unchallenged height and size limitations. Id. at 821, 823. *5 We need not decide whether the cases cited by Smith are consistent with our circuit precedent because they are readily distinguishable from the case at hand. Courts have concluded that plaintiffs fail to establish redressability only when an unchal- lenged legal obstacle is enforceable separately and distinctly from the challenged provision. In White, the federal statute meaningfully differed from the state cockfighting prohibitions and was enforced by a different sovereign. See 601 F.3d at 549. Simil- arly, the sign cases rest on the existence of an alternate regulation addressing a distinct issue. See Maverick, 528 F.3d at 820. [6][7] Unlike the statutes and regulations at is- sue in the cases upon which Smith relies, Okla. Stat. tit. 43, 3(a) is not enforceable independent of SQ 711. Under Oklahoma law: A time-honored rule teaches that a revising stat- ute (or, as in this case, a constitutional amend- ment) takes the place of all the former laws exist- ing upon the subject with which it deals. This is true even though it contains no express words to that effect. In the strictest sense this process is not repeal by implication. Rather, it rests upon the principle that when it is apparent from the framework of the revision that whatever is em- braced in the new law shall control and whatever is excluded is discarded, decisive evidence exists of an intention to prescribe the latest provisions as the only ones on that subject which shall be obligatory. Fent, 257 P.3d at 992 n. 20 (quoting Hendrick v. Walters, 865 P.2d 1232, 1240 (Okla.1993)). This rule suggests that SQ 711 takes the place of 3(a), and only the provisions of the constitutional amendment shall be obligatory. Fent, 257 P.3d at 992 n. 20. [8] Fent, Smith informs us, stands for the op- posite proposition because another portion of the opinion notes the general rules that repeals by im- plication are never favored, that it is not pre- sumed that the legislature, in the enactment of a subsequent statute intended to repeal an earlier one, unless it has done so in express terms, and that all provisions must be given effect unless irreconcil- able conflicts exist. Id. at 991. But the quoted pas- sage clarifies that when a constitutional amendment addresses the same subject as a statute, replacement is not repeal by implication and occurs even ab- sent express words. Id. at 992 n. 20. Fent did not involve a constitutional amend- ment replacing a statute; the court simply noted the rule in a footnote. The relevant quotation originates in Hendrick, which held that a constitutional amendment providing for a new oath of office for certain state positions superseded an existing statute prescribing a different oath. 865 P.2d at 124041. Smith is correct that the provisions at issue in Hendrick were arguably in conflict and the court found an intent to abrogate. Id. at 1240 n. 41. However, the broad language used in Hendrick and quoted in Fent directs that if the framework of a constitutional amendment indicates that whatever is embraced in the new law shall control and whatever is excluded is discarded, courts should treat this framework as decisive evidence that the amendment is the only provision on that subject which shall be obligatory. Fent, 257 P.3d at 992 n. 20 (quoting Hendrick, 865 P.2d at 1240). *6 SQ 711 evinces such a framework. The Ok- lahoma Supreme Court cited Lankford v. Menefee, Page 8 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (28 of 518) 45 Okla. 228, 145 P. 375 (Okla.1914), in support of its conclusion in Hendrick. See 865 P.2d at 1240 nn. 3840. Lankford provides that a subsequent statute revising the subject-matter of the former one, and evidently intended as a substitute for it, al- though it contains no express words to that effect, must operate to repeal the former as long as it is apparent that the Legislature designed a complete scheme for the matter. 145 P. at 376. It follows that SQ 711 provides a complete scheme for Ok- lahoma's policy regarding same-sex marriage. The statute identified by Smith has no effect beyond the restrictions on same-sex marriage im- posed by SQ 711 because the two provisions are materially identical. Total eclipse of the function of the statute underscores our conclusion that the amendment provides a complete scheme. Further, it raises the concern that the statute could not be en- forced without violating the district court's injunc- tion. Smith was enjoined from enforcing Part A against same-sex couples seeking a marriage li- cense. Bishop II, 962 F.Supp.2d at 1296. If Smith were to deny the Bishop couple a marriage license because they are both women, she would simultan- eously be enforcing both Okla. Stat. tit. 43, 3(a) and Part A of SQ 711. There is no scenario in which Smith could enforce the statute but not en- force the amendment. FN2 Because the prohibition on same-sex marriage contained in Okla. Stat. tit. 43, 3(a) is not en- forceable independently of SQ 711, we conclude that the Bishop couple has shown that their injury is redressable in this suit. FN3 B Our consideration of the merits of the Bishop couple's appeal is largely controlled by our decision in Kitchen. As explained more fully in that opinion, we conclude that: (1) the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (per curiam), is not controlling, Kitchen, 2014 U.S.App. LEXIS 11935, at *2131; plaintiffs seek to exercise the funda- mental right to marry, id. at *3363; and (3) state arguments that same-sex marriage bans are justified by the need to communicate a conceptual link between marriage and procreation, encourage par- enting by mothers and fathers, and promote sacri- fice by parents for their children fail to satisfy the narrow tailoring requirement of the applicable strict scrutiny test, id. at *6387. Facts and arguments presented in this case dif- fer in some respects from those in Kitchen. But our core holdings are not affected by those differences. State bans on the licensing of same-sex marriage significantly burden the fundamental right to marry, FN4 and arguments based on the procreative capa- city of some opposite-sex couples do not meet the narrow tailoring prong. In addition to the issues ex- plicitly discussed in Kitchen, we address two other arguments raised by Smith. She contends that lower federal courts are not free to reject on-point summary dismissals of the Supreme Court regardless of doctrinal develop- ments. Thus, Smith argues, Baker remains con- trolling. Her focus is on the Court's statement that a summary disposition is not here of the same pre- cedential value as would be an opinion of this Court treating the question on the merits. Tully v. Griffin, Inc., 429 U.S. 68, 74, 97 S.Ct. 219, 50 L.Ed.2d 227 (1976) (quotation omitted, emphasis added). This statement, Smith contends, indicates that, although they may have diminished precedential value for the Supreme Court, summary dispositions are identical to merits decisions when considered by lower courts. She also cites the Court's direction that summary dispositions prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). *7 [9] Her argument that doctrinal develop- ments do not allow a lower court to reject the con- tinued applicability of a summary disposition is un- dermined by the explicit language of the case creat- ing that rule. In Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), the Court stated Page 9 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (29 of 518) that inferior federal courts had best adhere to the view that if the Court has branded a question as un- substantial, it remains so except when doctrinal de- velopments indicate otherwise. Id. at 344 (quotation omitted, emphases added); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 94 n. 11, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (noting circuit court's holding that a doctrinal development warranted departure from precedent set by Supreme Court's summary dispositions); Okla. Telecasters Ass'n v. Crisp, 699 F.2d 490, 495 (10th Cir.1983) ([A] summary disposition is binding on the lower federal courts, at least where substantially similar issues are presented, until doctrinal developments or direct decisions by the Supreme Court indicate otherwise. (emphases added)), rev'd sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). Thus, con- trary to Smith's position, the doctrinal develop- ments statement is explicitly directed toward lower courts. And as explained in Kitchen, nearly every lower federal court to have considered the issue has concluded that Baker has been undermined by doc- trinal developments. Kitchen, 2014 U.S.App. LEX- IS 11935, at *2526. [10] In addition to her Baker argument, Smith also contends that children have an interest in being raised by their biological parents. Assuming that serving this interest is a compelling governmental goal, we nevertheless conclude that a prohibition on same-sex marriage is not narrowly tailored to achieve that end. See Reno v. Flores, 507 U.S. 292, 30102, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (stating strict scrutiny test). Oklahoma has enacted numerous laws that result in children being raised by individuals other than their biological parents. See, e.g., Okla. Stat. tit. 10, 554 (Any child or children born as a result of a heterologous oocyte donation shall be considered for all legal intents and purposes, the same as a naturally conceived le- gitimate child of the husband and wife which con- sent to and receive an oocyte pursuant to the use of the technique of heterologous oocyte donation.); 556(B)(1) (Any child or children born as a result of a human embryo transfer donation shall be con- sidered for all legal intents and purposes, the same as a naturally conceived legitimate child of the hus- band and wife that consent to and receive a human embryo transfer.); 75011.2(A) ( The Legis- lature of this state believes that every child should be raised in a secure, loving home and finds that adoption is the best way to provide a permanent family for a child whose biological parents are not able or willing to provide for the child's care or whose parents believe the child's best interest will be best served through adoption.). And Oklahoma permits infertile opposite-sex couples to marry des- pite the fact that they, as much as same-sex couples, might raise non-biological children. *8 The State thus overlooks the interests of children being raised by their biological parents in a wide variety of contexts. Yet Smith does not ex- plain why same-sex marriage poses a unique threat such that it must be treated differently from these other circumstances. See Zablocki v. Redhail, 434 U.S. 374, 390, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (grossly underinclusive statute did not satisfy narrow tailoring requirement). As the Court ex- plained in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), if the evil, as perceived by the State, would be identical with re- spect to two classes, the state may not impinge upon the exercise of a fundamental right as to only one class because the underinclusion would be in- vidious. Id. at 454. As we explained in Kitchen, such divergence between the characteristic claimed to be relevant and the classification contained in the challenged provision is inconsistent with the nar- row tailoring requirement. See Kitchen, 2014 U.S.App. LEXIS 11935, at *6475. Moreover, Oklahoma's ban on same-sex mar- riage sweeps too broadly in that it denies a funda- mental right to all same-sex couples who seek to marry or to have their marriages recognized regard- less of their child-rearing ambitions. As with op- posite-sex couples, members of same-sex couples have a constitutional right to choose against procre- Page 10 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (30 of 518) ation. See Eisenstadt, 405 U.S. at 453 (If the right of privacy means anything, it is the right of the in- dividual, married or single, to be free from unwar- ranted governmental intrusion into matters so fun- damentally affecting a person as the decision whether to bear or beget a child. (emphasis omit- ted)). But Oklahoma has barred all same-sex couples, regardless of whether they will adopt, bear, or otherwise raise children, from the benefits of marriage while allowing all opposite-sex couples, regardless of their child-rearing decisions, to marry. Such a regime falls well short of estab- lishing the most exact connection between justific- ation and classification. Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (quotation omitted); see also Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (A statute is narrowly tailored if it targets and eliminates no more than the exact source of the evil it seeks to remedy.). In summary, none of the arguments presented by Smith that were unaddressed in Kitchen per- suade us to veer from our core holding that states may not, consistent with the United States Constitu- tion, prohibit same-sex marriages. III I am grateful to Judge Holmes for his author- ship of this, Part III of the majority opinion. Judge Holmes was on panel for our earlier decision in Bishop I. His authorship of this section is acknow- ledged with thanks. Because Smith lacks authority to recognize any out-of-state marriage and therefore [lacks the] ability to redress the Barton couple's non- recognition injury, Bishop II, 962 F.Supp.2d at 1273, the district court held that the Barton couple lacked standing to challenge Part B of SQ 711 as against Smith. We conclude that although the law of the case doctrine applied to Bishop I, Smith's af- fidavit constituted new evidence sufficient to over- come the doctrine. We further conclude that the Barton couple's argument that Part B is inseverable from Part Aand that both must therefore fall to- getherwas forfeited. A *9 [11][12][13] Under the law of the case doctrine, when a court rules on an issue of law, the ruling should continue to govern the same issues in subsequent stages in the same case. United States v. Graham, 704 F.3d 1275, 1278 (10th Cir.2013) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)) (quotation omitted). The doctrine pertains both to rulings by district courts, see, e.g., Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1140 (10th Cir.2009) , andas relevant hereby previous panels in pri- or appeals in the same litigation, see, e.g., United States v. Wardell, 591 F.3d 1279, 1300 (10th Cir.2009). Importantly, [w]e have routinely recog- nized that the law of the case doctrine is discretionary, not mandatory, and that the rule merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power. Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir.2001) (quoting Stifel, Nic- olaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir.1996)) (quotation omitted); accord Haynes Trane Serv. Agency v. Am. Standard, Inc., 573 F.3d 947, 963 (10th Cir.2009). Even so, it takes exceptionally narrow circumstances for the court not to follow the law of the case when the doctrine applies. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.1998). In Bishop I, a panel of this court found that neither the Barton couple nor the Bishop couple had standing to challenge SQ 711. 333 F. App'x at 365. It determined that the couples could not demonstrate redressability, reasoning as follows: The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the du- ties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. [A] district court clerk is judicial personnel and is Page 11 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (31 of 518) an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk's minis- terial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Adminis- trative District Judge in the clerk's administrative district. Because recognition of marriages is with- in the administration of the judiciary, the execut- ive branch of Oklahoma's government has no au- thority to issue a marriage license or record a marriage. Id. (alterations in original) (quotation and cita- tions omitted). Taking this passage at face value, it is most logically construed as the panel's determin- ation that the Barton couple should have sued a dis- trict court clerk on their non-recognition claim. The panel: (1) prefaced its discussion with a reference to both the ban and the non-recognition claims; (2) found standing on neither; (3) reasoned that the At- torney General and the Governor were improper de- fendants; (4) explained that judicial personnel were proper defendants; and (5) informed the plaintiffs that court clerks represented the judiciary and car- ried out many of the branch's duties relating to mar- riage. Collectively, these points lead to but one in- terpretation: the correct defendant for the Barton couple's nonrecognition claim was a court clerk. *10 One possible counterargument is that when the panel wrote that recognition of marriages was within the administration of the judiciary, id., it meant in the broader sense of recognizing a couple's right to get a marriage license in Ok- lahoma. That argument makes little sense when one considers the context: the first sentence of the para- graph describes the complaint of the couples (more specifically, the Barton couple) as alleging that they are married but the marriage is not recog- nized in Oklahoma, id. (emphasis added), and the order consistently uses some form of the word recognize to describe the Barton couple's claim, see id. at 36263. Another potential counterargument is that the panel determined only that the Barton couple should look for a defendant in the judicial branch, not that they should necessarily select a court clerk. See id. at 365 (Because recognition of marriages is within the administration of the judiciary, the exec- utive branch of Oklahoma's government has no au- thority to issue a marriage license or record a mar- riage. (emphasis added)). Again, though, context belies this interpretation. Why mention the role of the court clerks in administering the marriage stat- utes, and why describe their relationship to the rest of the court system, if not to express the opinion that they are appropriate defendants? [14] That the panel concluded that a court clerk was the proper adversary for the Barton couple does not necessarily mean that this conclusion be- came the law of the case. There are three potential reasons to hold that it did not: (1) the conclusion was dicta; (2) the conclusion dealt with recognition of an older marriage entered into by the Barton couple, not their current marriage; and (3) as a jur- isdictional determination, the conclusion was not subject to the law of the case doctrine. None of these reasons are persuasive. [15] Turning to the first, it is well-settled that [d]icta is not subject to the law of the case doc- trine. Homans v. City of Albuquerque, 366 F.3d 900, 904 n. 5 (10th Cir.2004); accord Octagon Res., Inc. v. Bonnett Res. Corp. ( In re Meridian Reserve, Inc.), 87 F.3d 406, 410 (10th Cir.1996). Statements which appear in an opinion but which are unnecessary for its disposition are dicta. See United States v. Manatau, 647 F.3d 1048, 1054 (10th Cir.2011); United States v. VillarrealOrtiz, 553 F.3d 1326, 1329 n. 3 (10th Cir.2009) (per curi- am). One could argue that Bishop I held only that the Governor and the Attorney General were the wrong defendants, not that Smith was the right one. But it is not so easy to separate the two propositions as a logical matter, and the law of the case applies to issues that are resolved implicitly. Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d 1407, 1410 (10th Cir.1996). Bishop I's holding that Page 12 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (32 of 518) the Governor and Attorney General were improper defendants was tethered closely to the panel's view of who the right defendant was. That is, the panel's rationale for finding no standing was that the Gov- ernor and Attorney General were not responsible for administering marriage laws and the court clerks were. See Bishop I, 333 F. App'x at 365 (The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.). Therefore, the panel held, if only implicitly, that the court clerk was the correct defendant to name for the Bar- ton couple's non-recognition claim. *11 The second potential reason to rule that Bishop I created no law of the case on standing to sue on the non-recognition claim is that the panel never ruled on such a claim with reference to the Barton couple's California marriage, upon which the claim is now based; rather, it ruled only on their Canadian marriage and Vermont civil union, since the California marriage was solemnized after brief- ing in the appeal was complete. See id. at 363 (mentioning the events in Vermont and Canada but not the California marriage). This is a distinction without a difference. The holding in Bishop I had nothing to do with what sovereign conferred the status that the Barton couple wished to have recog- nized; it had only to do with which state officials were responsible for offering or withholding that recognition. See id. at 365 (noting that the execut- ive branch of Oklahoma's government has no au- thority to issue a marriage license or record a mar- riage). [16] Lastly, it is Smith's view that the law of the case doctrine is per se excluded from considera- tion on this point because the standing issue is jur- isdictional. Smith's stance is squarely foreclosed by Supreme Court precedent. In Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988), the Court took up a dispute in which the Seventh Circuit and the Federal Circuit had each disclaimed jurisdiction and had each transferred the case to the other. Id. at 80304. The Supreme Court admonished the feud- ing circuit courts of the importance of adhering strictly to principles of law of the case. Id. at 819. In so doing, the Supreme Court did not tailor its ar- ticulation of the law of the case doctrine to the jur- isdictional context. Quite to the contrary, it expli- citly declared that [t]here is no reason to apply law-of-the-case principles less rigorously to trans- fer decisions that implicate the transferee's jurisdic- tion. Id. at 816 n. 5. Christianson thus makes clear that the law of the case doctrine is never off the ta- ble solely because an issue is jurisdictional. The cir- cuits have agreed that this rule applies to a situ- ation, like the one present today, where a prior pan- el of the same court resolved a jurisdictional matter in an earlier appeal. See Alexander v. JensenCarter, 711 F.3d 905, 909 (8th Cir.2013); Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d 699, 704 (7th Cir.2011); Free v. Abbott Labs., Inc., 164 F.3d 270, 27273 (5th Cir.1999); Ferreira v. Borja, 93 F.3d 671, 674 (9th Cir.1996) (per curi- am); LaShawn A. v. Barry, 87 F.3d 1389, 1394 (D.C.Cir.1996) (en banc); Oneida Indian Nation of N.Y. v. New York, 860 F.2d 1145, 1151 (2d Cir.1988). FN5 For the proposition that the law of the case doctrine has no applicability to jurisdictional mat- ters, Smith relies chiefly on Baca v. King, 92 F.3d 1031 (10th Cir.1996). Baca cannot support that weight. In the crucial passage from that case, we stated that [o]ne application of the law of the case doctrine gives an appellate court discretion to refuse to reconsider an issue decided at an earlier stage of the litigation and that doctrine is not a fixed rule that prevents a federal court from determ- ining the question of its own subject matter juris- diction in a given case. Id. at 1035. Far from carving out an exception to customary law- of-the-case practices in the jurisdictional context, Baca was actually applying the classic law- Page 13 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (33 of 518) of-the-case approach to a jurisdictional question. That is, the law of the case is never a fixed rule, id., but rather always a discretionary ... practice of courts generally to refuse to reopen what has been decided. Kennedy, 273 F.3d at 1299 (quotation omitted). Utilizing that well-established framework, the Baca court determined that the law of the case did not dictate the result of the jurisdictional ques- tion presented under the circumstances in that dis- pute. Baca did not foreclose the possibility that the law of the case might, in other controversies, con- trol a jurisdictional issue. FN6 *12 By emphasizing the jurisdictional nature of the issue, Baca reflected the longstanding rule that while there is no categorical exclusion from the law of the case doctrine for jurisdictional issues, a slightly more flexible methodology is called for in the jurisdictional context. In this regard, we have indicated that [i]ssues such as subject matter juris- diction ... may be particularly suitable for reconsid- eration, even where the doctrine might otherwise counsel against it. Kennedy, 273 F.3d at 1299 (quotation and citation omitted). Our law on that point is consistent with respected secondary author- ity and with the pronouncements of our sister cir- cuits. See Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir.2003) (Law of the case, which is itself a malleable doctrine meant to bal- ance the interests of correctness and finality, can likewise be calibrated to reflect the increased prior- ity placed on subject matter jurisdictional issues generally, and Article III standing in particular which represents perhaps the most important of all jurisdictional requirements. (emphasis added) (quotation omitted)); Shakman v. Dunne, 829 F.2d 1387, 1393 (7th Cir.1987) ([C]ourts are signific- antly less constrained by the law of the case doc- trine with respect to jurisdictional questions. (emphasis added)); 18B Charles Alan Wright et al., Federal Practice and Procedure 4478.5, at 790 (2d ed.2002) (henceforth Federal Practice) (noting that [t]he force of law-of-the-case doctrine is af- fected by the nature of the first ruling and by the nature of the issues involved and then ranking sub- ject-matter jurisdiction as one of the issues most likely to be reconsidered because of [its] conceptual importance); id. at 798800 (Although a federal court is always responsible for assuring itself that it is acting within the limits of subject-matter jurisdic- tion statutes and Article III, this duty need not ex- tend to perpetual reconsideration. A court may ac- cept its own earlier determination supporting sub- ject-matter jurisdiction or justiciability; a denial of subject-matter jurisdiction or justiciability is easily adhered to. Reconsideration of these matters is par- ticularly appropriate nonetheless .... (emphases ad- ded) (footnotes omitted)). In sum, the law of the case doctrine does apply to prior jurisdictional determinations by merits pan- els, but it applies in a somewhat weaker fashion such that the court can consider with special care whether an exception to the doctrine permits reas- sessment of jurisdiction. That more flexible form of the doctrine will be brought to bear in the following section. B [17] Applying the law of the case doctrine with the foregoing considerations in mind, Bishop I does not require a finding of standing to sue on the non- recognition claim. [18] As a practice rather than a rigid rule, the law of the case is subject to three narrow excep- tions: (1) when new evidence emerges; (2) when in- tervening law undermines the original decision; and (3) when the prior ruling was clearly erroneous and would, if followed, create a manifest injustice. See Irving, 665 F.3d at 1192 n. 12; Clark, 590 F.3d at 1140. *13 Although Smith focuses on the third ex- ception, the first provides a better framework for the analysis. This is so because Smith does not make a case for why invocation of law of the case would work a manifest injustice, which the clearly-erroneous exception requires . FN7 See, e.g., Zinna v. Congrove, F.3d , 2014 U.S.App. LEXIS 10460, at *11 (10th Cir.2014); Irving, 665 Page 14 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (34 of 518) F.3d at 1192 n. 12; Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir.2011). Further, Smith is relying in her law-of-the-case argument on a docu- menther affidavitthat was not presented to the courts until after Bishop I's issuance. If the affidavit shows Smith to be an improper defendant, as she maintains, then the Bishop I panel could not have clearly erred in finding to the contrary, as it did not have the benefit of that affidavit. Substantively, then, the new-evidence exception is the more ap- propriate exception to consider here. Having located the relevant exception, we con- front two questions: (1) whether the affidavit quali- fies as new evidence for purposes of the exception; and (2) whether the affidavit proves the absence of standing. Both questions demand an affirmative an- swer. 1 Turning to the first question, there can be no serious argument that the affidavit is anything other than new evidence within the meaning of the excep- tion. Smith Machinery Co. v. Hesston Corp., 878 F.2d 1290 (10th Cir.1989), is a helpful place to be- gin. In that case, a district court at summary judg- ment reconsidered a previous ruling despite the law of the case, relying in part on the proposition that the law of the case doctrine does not ... apply in cases in which new evidence is presented to a court. Id . at 1292. We affirmed, noting that the district court had before it depositions and affi- davits presented by both parties attesting to new and relevant facts. Id. at 1293. Tacitly, Smith Ma- chinery endorsed the district court's use of the sum- mary-judgment affidavits in its new-evidence ana- lysis. [19] This implicit holding is in keeping with general principles of law. As In re Antrobus, 563 F.3d 1092 (10th Cir.2009) (per curiam), intimated, an affidavit is properly categorized as new evidence under the law of the case where it constitutes admissible evidence, id. at 1099 n. 3, and affi- davits are plainly competent evidence at summary judgment, see Fed.R.Civ.P. 56(c)(1)(A) (providing that a party moving for summary judgment may support its motion by pointing to affidavits); Hansen v. PT Bank Negara Indon. (Persero), 706 F.3d 1244, 1250 (10th Cir.2013) ([A]ffidavits are entirely proper on summary judgment....). FN8 Nor is there any apparent reason why an affi- davit at summary judgment would not be regarded as a proper piece of new evidence such that the ex- ception is satisfied. That is presumably why the Fifth Circuit has accepted such affidavits as new evidence in evaluating whether the law of the case controls or not. See United States v. Horton, 622 F.2d 144, 148 (5th Cir.1980) (per curiam) (finding that the law of the case did not preclude the entry of summary judgment despite an earlier contrary rul- ing because the production of reports, admissions, affidavits, and other record material during the course of the proceedings had clarified and resolved questions of material fact on several of the [relevant] issues). *14 [20] It is true that previously-available evidence often cannot be used to unsettle the law of the case. See In re Antrobus, 563 F.3d at 1099 (The difficulty is that the Antrobuses have not demonstrated that they were unable to present evid- ence along these very same lines over a year ago, when this litigation began.); United States v. Mon- sisvais, 946 F.2d 114, 117 (10th Cir.1991) (The different or new evidence exception does not ap- ply because ... the additional evidence provided by the government at the supplemental hearing was evidence it had in its possession, but failed to pro- duce, at the time of the original hearing.). But neither Smith nor any other court clerk was a party to the case at the time of Bishop I. Smith con- sequently did not have an opportunity to introduce the evidence earlier, and no party had any reason to seek it out. As demonstrated by the quotes recited above from Antrobus and Monsisvais, this previ- ously-available-evidence bar is applied when the party seeking to circumvent the law of the case had a chance to introduce the evidence in the prior pro- ceedings and failed to exploit that chance. See In re Page 15 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (35 of 518) Antrobus, 563 F.3d at 1099 (The difficulty is that the Antrobuses have not demonstrated that they were unable to present evidence along these very same lines over a year ago, when this litigation began. (emphases added)); Monsisvais, 946 F.2d at 117 (The different or new evidence exception does not apply because ... the additional evidence provided by the government at the supplemental hearing was evidence it had in its possession, but failed to produce, at the time of the original hear- ing. (emphases added)). That is not the case here. Smith did not fail to do anything during Bishop I because she was not participating in Bishop I. Ac- cordingly, this bar does not apply, and Smith's affi- davit does qualify as new evidence within the meaning of the new-evidence exception to the law of the case doctrine. FN9 2 The next question is whether the affidavit demonstrates a lack of standing. It does. [21][22] Article III standing is a prerequisite to every lawsuit in federal court. See Petrella v. Brownback, 697 F.3d 1285, 129293 (10th Cir.2012); Jackson v. Volvo Trucks N. Am., Inc., 462 F.3d 1234, 1241 (10th Cir.2006). Each plaintiff must have standing to seek each form of relief in each claim. Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir.2007); accord Meyer v. Christie, 634 F.3d 1152, 1157 (10th Cir.2011). In order to demonstrate Article III standing, a plaintiff must show: (1) that [she] has suffered a concrete and particular injury in fact that is either actual or imminent; (2) the injury is fairly traceable to the alleged actions of the defendant; and (3) the injury will likely be redressed by a favorable de- cision. Kerr v. Hickenlooper, 744 F.3d 1156, 1163 (10th Cir.2014); accord S. Utah Wilderness Alli- ance v. Palma, 707 F.3d 1143, 1153 (10th Cir.2013). The issue at hand turns on the third re- quirementthat of redressabilitywhich is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute. Bronson, 500 F.3d at 1111. As established by her affidavit, that is the case with Smith and Part B. *15 In the affidavit, Smith swore that she had no authority to recognize or record a marriage li- cense issued by another state in any setting, regard- less of whether the license was issued to an oppos- ite-sex or a same-sex couple. The plaintiffs have offered nothing of substance to contradict that statement. FN10 With the new affidavit, the uncon- troverted summary-judgment record shows that Smith had no power to recognize the Barton couple's out-of-state marriage, and therefore no power to redress their injury. FN11 Since Smith was the only state defendant named in the operative complaint, the Barton couple had no standing to sue on their non-recognition claim. See Cressman, 719 F.3d at 1147 (finding that a plaintiff had no stand- ing to sue a defendant because the plaintiff provided no basis to conclude that the district court could order [the defendant] to do anything in her official capacity to redress [the plaintiff's] al- leged injuries); Nova Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir.2005) (dismissing a claim in part for lack of redressability where a fa- vorable judgment would likely do nothing to pre- vent [the harm], and thus would not be substantially likely to redress [the plaintiff's] injury in fact). There are various potential counterarguments that resist this conclusion, but they all fail. First, an argument could be made that the Bar- ton couple was entitled to sue Smith as the face of the judiciary despite the undisputed fact that she has no personal involvement in recognizing foreign marriages. Granted, there are scenarios in which a plaintiff is permitted to seek relief against a defend- ant who would only be indirectly implicated in any harm suffered by the plaintiff. Notably, however, these scenarios frequently arise when a plaintiff fearing prosecution sues a state attorney general and other law enforcement officials to challenge a criminal statute. See, e.g., Doe v. Bolton, 410 U.S. 179, 18889 (1973); Wilson v. Stocker, 819 F.2d 943, 94647 (10th Cir.1987). An attorney general is the chief law enforcement officer of his or her juris- Page 16 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (36 of 518) diction. See Mitchell v. Forsyth, 472 U.S. 511, 520, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). As such, he or she is charged with enforcing all of the criminal statutes on the books. See, e.g., Gandy, 416 F.3d at 1158. It is therefore logical to name that person in his or her representative capacity when one is con- cerned about a potential criminal prosecution. See id. ([A]n official who is charged with enforcing a state statute on behalf of the entire state is a proper defendant, so long as the plaintiff shows an appre- ciable threat of injury flowing directly from the statute.). It is less logical to sue a court clerk as the face of a non-recognition regime. Far from being deleg- ated the responsibility to enforce that regime, the court clerk has a very tenuous relationship to the non-recognition provision. To be sure, Oklahoma courts apply the State's laws regarding the validity of marriages. See Copeland v. Stone, 842 P.2d 754, 755 (Okla.1992) (deciding a case involving a pro- hibition on remarriage within six months of di- vorce); Mueggenborg v. Walling, 836 P.2d 112, 112 (Okla.1992) (deciding a case involving the exist- ence vel non of a common-law marriage); Allen v. Allen (In re Estate of Allen), 738 P.2d 142, 143 (Okla.1987) (deciding a case posing the question of whether a marriage had been properly dissolved for estate-distribution purposes); see also Oral Arg. at 15:0829 (pointing out that Oklahoma's judicial branch makes the ultimate determination of mar- riage validity with respect to matters like divorce, child custody, inheritance, and bigamy). But all laws are applied by the courts, and all laws are ulti- mately given their binding meaning by the judi- ciary. See Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1571 n. 9 (10th Cir.1995) ( [I]t is, emphat- ically, the province and duty of the judicial depart- ment to say what the law is. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803))). If the judiciary's responsibility to interpret Part B when disputes over its meaning arose were enough to confer standing, one could always sue the court clerk in any challenge to any state law. Standing, perhaps the most important of the Art- icle III justiciability doctrines, id. at 1572, would then become little more than an empty formality, easily satisfied in every case. *16 The plaintiffs seek standing, moreover, on the basis of their bald assertion that Smith is stat- utorily responsible for deciding whether to recog- nize out-of-state marriages in the sense that if a couple with an out-of-state marriage attempts to ob- tain an Oklahoma marriage license, Smith's office ascertains whether the out-of-state marriage is valid for purposes of determining whether the couple is qualified to receive an Oklahoma license. At oral argument, counsel for the plaintiffs elaborated on the point, explaining that if the ban is nullified in this litigation, same-sex couples in Oklahoma who were validly married in other states, like the Barton couple, would seek Oklahoma marriage licenses, and the court clerks would then determine the validity of those foreign marriages. This, however, is a strained argument. And, in light of the burden that the plaintiffs were obliged to carry at the sum- mary-judgment stage, it is patently unavailing. The Smith affidavit was presented to the dis- trict court as an attachment to her motion for sum- mary judgment. To show standing on non- recognition in the face of Smith's unequivocal dis- avowal of any involvement in marriage recognition, the plaintiffs were not entitled in responding to the affidavit to depend on mere allegations' regard- ing standing; rather, they were required to set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment mo- tion will be taken to be true . Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted) (quoting Fed.R.Civ.P. 56(e)); accord Bronson, 500 F.3d at 1111 n. 10. FN12 Despite Smith's affidavit, the plaintiffs produced no such evidence indicating that Smith would in fact inquire into the validity of their California marriage in the event they sought an Ok- lahoma license, and no evidence that they ever even intended to seek an Oklahoma marriage license. In short, they produced no evidence generating even a Page 17 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (37 of 518) possibility that Smith would ever be called upon to evaluate the validity of their California marriage. Even assuming that the Barton couple had sought a marriage license from Smith, or intended to do so, it is implausible to imagine that Smith would have inquired into the validity of their Cali- fornia marriage. Looking at the state of the world at the time the suit was filed, as the law instructs, see Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir.2011); Utah Ass'n of Cntys. v. Bush, 455 F.3d 1094, 1099 (10th Cir.2006), the standing inquiry must be predicated on the existence of a valid ban on same-sex marriage in Oklahoma. If the Barton couple had sought an Oklahoma marriage license in the face of the ban, it would have been odd, to say the least, for Smith to investigate the validity of their California marriage rather than denying them a license outright pursuant to the unambiguous mandate of a law that she was duty-bound to fol- low. That being the case, the plaintiffs have no be- lievable hypothetical under which Smith would even be considering the validity of the Barton couple's marriage, and hence no believable hypo- thetical rendering her a source of relief for their non-recognition injury. This theory is simply too conjectural to warrant a finding of redressability. See Kerr, 744 F.3d at 1171 (reiterating that an in- jury is redressable if a court concludes it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. (quoting Lujan, 504 U.S. at 561)); accord Petrella, 697 F.3d at 1294. *17 There are other state officials with a much closer and more concrete relationship to the with- holding of recognition than any courthouse staff, including Smith. The most salient example lies in the area of taxation. In Oklahoma, the Tax Com- mission presides over the State's tax system. See Okla. Stat. tit. 68, 203. One of the Commission's responsibilities is to accept or deny joint tax returns mailed in by couples. See Grasso v. Okla. Tax Comm'n, 249 P.3d 1258, 1261 (Okla.Civ.App.2011) . With that scheme in place, a non-recognition plaintiff could file a joint tax return, have that status denied, and then sue the members of the Tax Commission. See, e.g., Baskin v. Bogan, F.Supp.2d , 2014 U.S. Dist. LEXIS 86114, at * 15, *50 (S.D.Ind.2014) (finding the commissioner of the state department of revenue a proper party and ordering him to permit same-sex couples to file joint tax returns); cf. Rott v. Okla. Tax Comm'n, No. CIV131041M, 2014 U.S. Dist. LEXIS 77173, at *24 (W.D. Okla. June 6, 2014) (describing an ac- tion brought against, inter alia, members of the Ok- lahoma Tax Commission for wrongfully assessing and attempting to collect income taxes from the plaintiff in violation of his federal constitutional rights). Other equally straightforward paths to redress- ability are easy enough to imagine, and several have in fact been taken in similar challenges being litigated elsewhere. See, e.g., Tanco v. Haslam, F.Supp.2d , 2014 U.S. Dist. LEXIS 33463, at *9, *3334 (M.D.Tenn.2014) (sustaining a non- recognition challenge where the plaintiffs sued the commissioner of the department of finance and ad- ministration after they were prevented from using a family health insurance plan provided by a public university); Bostic v. Rainey, 970 F.Supp.2d 456, 46163, 484 (E.D.Va.2014) (sustaining a non- recognition challenge where the plaintiffs sued the state registrar of vital records to obtain a birth certi- ficate so that they could legally adopt the daughter they raise together); Obergefell v. Wymyslo, 962 F.Supp.2d 968, 97273, 1000 (S.D.Ohio 2013) (sustaining a non-recognition challenge where the plaintiffs sued the director of the state department of health to obtain a death certificate listing the couple as married). FN13 The distinction between Smith and a proper de- fendant, moreover, is not a distinction between dis- cretionary decisions enforcing the non-recognition provision and ministerial decisions doing so. In all relevant respects, a tax commissioner's decision to withhold joint-filing status is, as a practical matter, just as ministerial as Smith's decision to withhold Page 18 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (38 of 518) recognition. Both officials are responsible for faith- fully applying Oklahoma law, and Oklahoma law clearly instructs both of them to withhold marital status from same-sex couples. If the Barton couple had expressed a wish to file joint taxes and named a tax official responsible for authorizing that filing, there would be no doubt that a court order to the of- ficial would remedy the couple's non-recognition injury: the official would then accept the joint re- turn. See Baskin, 2014 U.S. Dist. LEXIS 86114, at *15, *50 (finding the commissioner of the state de- partment of revenue a proper party and ordering him to permit same-sex couples to file joint tax re- turns). There is no analogue with respect to Smith. The supposition that Smith will have any specific involvement in recognizing or declining to recog- nize the Barton couple's marriage lacks any demon- strated foundation in the record or in Oklahoma law. FN14 *18 Unable to demonstrate standing on their principal non-recognition injurythe refusal of the State to recognize their marriagethe plaintiffs seek to rely upon a different injury. Specifically, the plaintiffs insist they have standing because the injury of shutting the state courthouse doors on Plaintiffson top of the injuries of ... non- recognitionwould be redressed by an injunction against [Part B]. As Smith correctly points out, though, the Barton couple did not challenge Part B on the grounds that it foreclosed their right to ac- cess the state court system. Rather, they challenged it on the grounds that it violated their equal- protection and due-process rights to have their mar- riage recognized. Crucially, the district court never heard a contention from the Barton couple that Part B visited upon them an access-to-the-courts injury, FN15 and it was their obligation to show standing. See Kerr, 744 F.3d at 1163; Petrella, 697 F.3d at 1293. The district court could not have entertained jurisdiction over a claim on the basis of redressabil- ity for an injury that the Barton couple never al- leged. In sum, the Barton couple had no standing to sue, and the district court properly dismissed their non-recognition challenge as a result. C In a final attempt to nullify Part B along with Part A, the plaintiffs submitfor the first time on appealthat the non-recognition provision must be struck down under severability law as soon as the ban is struck down, no matter whether there was standing to challenge the non-recognition provision or not. For her part, Smith asks for a finding that the plaintiffs forfeited their severability theory by failing to raise it in the district court. The plaintiffs do not deny that they omitted the argument from their summary-judgment filings, and a review of those filings finds no trace of severability doctrine. Nevertheless, the plaintiffs request that we take ac- count of severability if the ban falls, regardless of the issue's preservation, becausein their viewa severability analysis is required whenever a court declares invalid part of an enactment. [23][24] At the outset, it is necessary to de- termine the controlling source of law. The question of whether an unconstitutional provision of state law is severable from the remainder of the enact- ment is a matter of state law. See Leavitt v. Jane L., 518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996) (per curiam); accord Am. Target Adver., Inc. v. Giani, 199 F.3d 1241, 1250 (10th Cir.2000). So too is the question of whether a severability ana- lysis is triggered in the first place by the facts of the case, i.e., whether the type of judicial ruling at issue calls for a severability inquiry. See Local 514 Transp. Workers Union of Am. v. Keating, 66 F. App'x 768, 779 (10th Cir.2003) (certifying to the Oklahoma Supreme Court the question of whether severability analysis applied to certain state consti- tutional provisions if they were declared preempted by federal law); Local 514 Transp. Workers Union of Am. v. Keating, 83 P.3d 835, 839 (Okla.2003) (answering that severability analysis would not ap- ply and holding that whether to apply severability analysis ... [was] a matter of state law); see also Local 514 Transp. Workers Union of Am. v. Keat- Page 19 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (39 of 518) ing, 358 F.3d 743, 744 n. 1 (10th Cir.2004) (subsequently deciding the appeal on the basis of the Oklahoma Supreme Court's answer and incor- porating the certification into the published opin- ion). *19 Unlike substantive severability law, though, the matter of whether an argument has been forfeited by a party's failure to raise it in the district court is decided by federal procedural law. That proposition is underscored by the fact that when we have found an argument forfeited by its omission in district court proceedings in a diversity casewhere we are applying substantive state lawwe have supported our forfeiture ruling with citations to Tenth Circuit decisions that are either applying substantive federal law or the substantive law of a different state. See, e.g., Elm Ridge Explor- ation Co. v. Engle, 721 F.3d 1199, 1213 (10th Cir.2013); Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate 2003, 715 F.3d 1231, 1234 n. 1 (10th Cir.2013); Emp'rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1176 n. 20 (10th Cir.2010). More relevant to the case at bar, in Awad v. Ziriax, 670 F.3d 1111, 1132 n. 16 (10th Cir.2012), we applied a federal approach to a highly analogous situation. In Awad, a popular vote approved a pro- posal to add to the state constitution a provision that included, inter alia, language forbidding Ok- lahoma courts from considering Sharia law in ren- dering their decisions. Id. at 111718. The district court issued a preliminary injunction, ordering state officials not to certify the election result until the court had ruled on the merits of a federal constitu- tional challenge to the proposed amendment. Awad v. Ziriax, 754 F.Supp.2d 1298, 1308 (W.D.Okla.2010). On appeal, we affirmed the pre- liminary injunction. Awad, 670 F.3d at 1133. We attached the following footnote to the end of our substantive analysis: Appellants raised the issue of severability of the Sharia law portions of the amendment for the first time to this court in post-oral argument sup- plemental briefing. Their argument consisted of one sentence and cited no authority, stating that if this court decides the Sharia law provisions in the amendment render the amendment invalid, the court should simply treat the explicatory example as surplusage, and strike it. Because this issue has not been adequately briefed, we do not ad- dress it. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir.2011). Id. at 1132 n. 16. In other words, in a federal constitutional challenge to an Oklahoma constitu- tional provision, we upheld, at least preliminarily, a decision striking down the provision and declined to consider severability because of a failure to ad- equately preserve the issue for re- viewspecifically, a waiver of the issue through deficient briefing. The Awad footnote is only ex- plicable if an appellate court has no inherent oblig- ation to consider severability sua sponte, as it would with, say, a jurisdictional issue. See, e.g., United States v. Ramos, 695 F.3d 1035, 1046 (10th Cir.2012), cert. denied, U.S. , 133 S.Ct. 912, 184 L.Ed.2d 701 (2013); Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 137576 (10th Cir.2011). *20 [25] As in Awad, this court is upholding here a decision striking down a provision of the Ok- lahoma Constitution on federal constitutional grounds, and, as in Awad, the litigant failed to ad- equately preserve the issue for reviewthis time, by effecting a forfeiture through failure to present the issue to the district court. There is no apparent reason why the result the court reached in Awad should not be the same here. In other words, the same principle should have equal purchase in the forfeiture context: if there is no obligation to con- sider severability sua sponte where it has been waived, FN16 there is no obligation to consider it where it has been forfeited. [26][27] Having thus resolved the issue of whether in a forfeiture context the court is oblig- ated to consider severability, the decision regard- ing what issues are appropriate to entertain on ap- Page 20 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (40 of 518) peal in instances of lack of preservation is discre- tionary. Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir.2013), cert. denied, U.S. , 134 S.Ct. 1874, L.Ed.2d (2014). Waiver through appellate-briefing omission and forfeiture through silence before the district court are admit- tedly distinct failures of preservation, and arguably there is more discretionary leeway to consider is- sues not preserved under the latter (forfeiture) than the former (appellate-briefing waiver). See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 112830 (10th Cir.2011) (exploring the distinction between for- feiture and waiver, including waiver through omis- sions in appellate briefs); see also United States v. McGehee, 672 F.3d 860, 873 (10th Cir.2012) ( Unlike waived theories, we will entertain forfeited theories on appeal.... (quoting Richison, 634 F.3d at 1128)). However, where a litigant attempts to rely upon a forfeited theory, the failure to argue for plain error and its application on appeal ... surely marks the end of the road for an argument for reversal not first presented to the district court. United States v. Lamirand, 669 F.3d 1091, 1100 n. 7 (10th Cir.2012) (omission in original) (quoting Richison, 634 F.3d at 1131). The plaintiffs are at the end of the road here. [28] In essence, in arguing for reversal, the plaintiffs are asserting that the district court erred in refusing to enjoin Part B in addition to Part A under severability law, despite their alleged lack of stand- ing to challenge the former. They offer no explana- tion as to how the district court plainly erred in this regard. FN17 In fact, the plaintiffs' only response to Smith's forfeiture argument is that a severability theory is not susceptible to forfeiture. As noted above, that is incorrectpursuant to Awad, the plaintiffs could in fact forfeit their severability ar- gument, and they did. FN18 Therefore, absent any argument by the plaintiffs for plain error, much less a cogent one, it is appropriate to decline to exercise the court's discretion to hear this forfeited severab- ility issue. To recapitulate, a severability theory can be forfeited, the plaintiffs' severability theory was for- feited, and the plaintiffs supply no argument for overlooking the forfeiture. As a consequence, they are not entitled to the benefit of any severability analysis, and the district court's dismissal of the challenge to Part B must be affirmed. FN19 *21 That the non-recognition claim is doomed to dismissal may seem a harsh result. The Barton couple first challenged Part B almost ten years ago. After the first appeal, the plaintiffs fairly under- stood Bishop I as a directive instructing them to name Smith as the lone defendant for all of their grievances. It was reasonable of the Barton couple to follow that perceived directive, and it is regret- table that their compliance has resulted in a lack of standing, especially after nearly a decade of com- plex, time-consuming, and no doubt emotional lit- igation. No matter how compelling the equitable argu- ments for reaching the merits of the non-re- cognition claim, however, its fate must be determ- ined by the law, and the law demands dismissal. The frustration that may be engendered by the court's disposition today should be tempered, however. Although it would not be appropriate to definitively opine on the matter, it is fair to surmise that the court's decision in Kitchen casts serious doubt on the continuing vitality of Part B. See 2014 U.S.App. LEXIS 11935, at *4 (A state may not ... refuse to recognize [a] marriage ... based solely upon the sex of the persons in the marriage uni- on.). IV For the foregoing reasons, we AFFIRM. We STAY our mandate pending the disposition of any subsequently-filed petition for writ of certiorari. See Fed. R.App. P. 41(d)(2); see also Kitchen, 2014 U.S.App. LEXIS 11935, at *9798. HOLMES, Circuit Judge, concurring. In upholding the district court's substantive rul- ing in this case, the majority concludes that Ok- lahoma's same-sex marriage banfound in SQ 711 Page 21 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (41 of 518) FN1 impermissibly contravenes the fundamental right to marry protected by the Due Process and Equal Protection Clauses of the Constitution. I fully agree with that conclusion and endorse without re- servation the reasoning of the majority on this mat- ter. FN2 I write here, however, to focus on one signific- ant thing that the district court wisely did not do in rendering its substantive ruling on the same-sex marriage ban. Specifically, the district court de- clined to rely upon animus doctrine in striking down SQ 711. See Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252, 1285 n. 32 (N.D.Okla.2014). Most of the other recent judicial decisions invalid- ating same-sex marriage laws have exercised the same forbearance. FN3 However, several district court decisions from other jurisdictions have taken a different tack and suggested that similar laws may suffer from unconstitutional animus. See Baskin v. Bogan, F.Supp.2d , 2014 WL 2884868, at *14 (S.D.Ind.2014); Henry v. Himes, F.Supp.2d , 2014 WL 1418395, at *6 (S.D.Ohio 2014); De Leon v. Perry, 975 F.Supp.2d 632, 655 (W.D.Tex.2014); Obergefell v. Wymyslo, 962 F.Supp.2d 968, 99596 (S.D.Ohio 2013). This con- currence endeavors to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the anim- us doctrine. *22 I will begin by setting forth the contours of the animus doctrine as those contours have been drawn by the Supreme Court's case law. Then, I will elucidate why SQ 711 falls outside of those boundaries and why it is consequently free from impermissible animus. I To understand why animus doctrine is not dis- positive in this appeal, one must understand three basic features of the doctrine: (1) what is animus; (2) how is it detected; and (3) what does a court do once it is found. I will address each question in turn, before applying the answers to the case at bar. A Beginning with first principles, when a state law is challenged on equal-protection grounds, and when that law does not implicate a fundamental right, a federal court ordinarily decides what type of analysis to apply on the basis of what sort of characteristic the State is using to distinguish one group of citizens from another. If the law uses a suspect classification, like race, strict scrutiny ap- plies. See Johnson v. California, 543 U.S. 499, 50506, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005); Riddle v. Hickenlooper, 742 F.3d 922, 927 (10th Cir.2014). If the law uses a quasi-suspect classifica- tion, like gender, intermediate scrutiny applies. See United States v. Virginia, 518 U.S. 515, 53233, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Save Pal- isade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th Cir.2002). For all other classifications, ration- al-basis review is typically appropriate. See Armour v. City of Indianapolis, U.S. , 132 S.Ct. 2073, 207980, 182 L.Ed.2d 998 (2012); Brown v. Montoya, 662 F.3d 1152, 1172 (10th Cir.2011). The animus cases depart from this well-trod path. In those cases, the Supreme Court took up equal-protection challenges to government action that distinguished between people on the basis of characteristics that the Court had not deemed sus- pect or quasi-suspect. See Romer v. Evans, 517 U.S. 620, 624, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (describing the challenged law as classifying on the basis of sexual orientation); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 43637, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (describing the challenged law as classifying on the basis of intel- lectual disability); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 530, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (describing the challenged law as classifying between households where the members were re- lated to one another and households where they were not FN4 ); see also Massachusetts, 682 F.3d at 10 (In [Moreno, Cleburne, and Romer], the Su- preme Court has now several times struck down state or local enactments without invoking any sus- pect classification.). Because the classifications at Page 22 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (42 of 518) issue in the animus line of cases did not involve suspect or quasi-suspect groups, one would have expected the Court to consider the laws under con- ventional rational-basis review. See Armour, 132 S.Ct. at 207980; Brown, 662 F.3d at 1172. But that was not what happened. In the run-of-the-mill rational-basis case, the Court asks whether the litigant challenging the state action has effectively negative[d] any reasonably conceivable state of facts that could provide a ra- tional basis for the classification. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (emphasis ad- ded) (quoting Heller v. Doe ex rel. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)) (internal quotation marks omitted); accord Ebonie S. ex rel. Mary S. v. Pueblo Sch. Dist. 60, 695 F.3d 1051, 1059 (10th Cir.2012) (parroting Supreme Court precedent in noting that we must uphold a law on rational-basis review if there is any reason- ably conceivable state of facts that could provide a rational basis for [the classification] (quoting CopelinBrown v. N.M. State Pers. Office, 399 F.3d 1248, 1255 (10th Cir.2005)) (internal quotation marks omitted)), cert. denied, U.S. , 133 S.Ct. 1583, 185 L.Ed.2d 577 (2013). Defying ex- pectations, the Supreme Court in the animus cases did not pose that broad question. *23 Rather than relying upon the various post- hoc rationalizations that could conceivably have justified the laws, the Court focused on the motiva- tions that actually lay behind the laws. See Romer, 517 U.S. at 634 (emphasizing that the challenged law was born of animosity toward the class of per- sons affected (emphasis added)); Cleburne, 473 U.S. at 450 (remarking that the challenged law rest[ed] on an irrational prejudice against the [intellectually disabled] (emphasis added)); Moreno, 413 U.S. at 534 (noting that [t]he legis- lative history [of the challenged law] indicate[d] that th[e] amendment was intended to prevent so called hippies' and hippie communes' from parti- cipating in the food stamp program (emphasis ad- ded)); see also Am. Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 692 (6th Cir.2011) (In each of the [animus cases], the Supreme Court ... concluded that the legislation at issue was in fact intended to further an improper government object- ive. (emphasis added)). Since the animus cases dealt with non-suspect groups, and yet did not invoke the rational-basis test in its classic form, the jurisprudence does not fit easily into the tiers of scrutiny that attach to most equal-protection claims. As a result, the type of review used in the animus decisions has been given a number of different labels. Sometimes the cases are simply lumped together with all other ra- tional-basis cases. See, e.g., PriceCornelison v. Brooks, 524 F.3d 1103, 1113 n. 9 (10th Cir.2008) (interpreting Romer as a rational-basis case). Some- times the animus cases are said to apply heightened rational-basis review, see, e.g., Klein- smith v. Shurtleff, 571 F.3d 1033, 1048 (10th Cir.2009), ormore colorfullyrational basis with bite, see, e.g., Kenji Yoshino, The New Equal Protection, 124 Harv. L.Rev. 747, 760 (2011), rational basis with teeth, see, e.g., Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 540 (2014) (internal quotation marks omitted), or rational basis plus, see, e.g., Marcy Strauss, Reevaluating Suspect Classifica- tions, 35 Seattle U.L.Rev. 135, 135 n.5 (2011) (internal quotation marks omitted). For present purposes, it is of no moment what label is affixed to the distinctive equal-protection mode of analysis that is performed in the animus cases. What is important is to know when and how to conduct that analysis. As suggested above, the hallmark of animus jurisprudence is its focus on ac- tual legislative motive. In the interest of analytical precision, it is important to clarify exactly what types of legislative motive may be equated with an- imus. Those motives could be viewed as falling somewhere on a continuum of hostility toward a particular group. FN5 See Black's Law Dictionary 806 (9th ed.2009) (defining hostile, in the relev- Page 23 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (43 of 518) ant entry, as [a]ntagonistic; unfriendly); New Ox- ford American Dictionary 818 (2d ed.2005) (defining hostile, in the relevant entries, as unfriendly; antagonistic, and opposed); Web- ster's Third New International Dictionary 1094 (2002) (defining hostile, in the relevant entries, as marked by antagonism or unfriendliness, marked by resistance esp[ecially] to new ideas, and unfavorable esp[ecially] to the new or strange). *24 On the weaker end of the continuum, a le- gislative motive may be to simply exclude a partic- ular group from one's community for no reason oth- er than an irrational prejudice harbored against that group. Cleburne, 473 U.S. at 450. In this sense, animus may be present where the lawmaking au- thority is motivated solely by the urge to call one group other, to separate those persons from the rest of the community (i.e., an us versus them legal construct). See Romer, 517 U.S. at 635 (invalidating a classification of persons under- taken for its own sake, something the Equal Protec- tion Clause does not permit); Cleburne, 473 U.S. at 448 ([M]ere negative attitudes, or fear, unsub- stantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the [intellectually disabled] differently from apartment houses, multiple dwell- ings, and the like.); see also Bowers v. NCAA, 475 F.3d 524, 554 (3d Cir.2007) (interpreting Cleburne as prohibiting the construction of a caste system). On the more extreme end of the continuum, the le- gislative motive that implicates the animus doctrine may manifest itself in a more aggressive formspecifically, a desire to harm a politically unpopular group. Moreno, 413 U.S. at 534 (emphasis added). At either end of this continuum, and everywhere in between, at its core, legislative motivation of this sort involves hostility to a partic- ular group and, consequently, implicates the animus doctrine. B Having settled the question of what constitutes animus, there remains the question of how one knows when one has found it. As explained in the following sections, the animus cases instruct us to explore challenged laws for signs that they are, as a structural matter, aberrational in a way that advant- ages some and disadvantages others. Two types of structural aberration are especially germane here: (1) laws that impose wide-ranging and novel deprivations upon the disfavored group; and (2) laws that stray from the historical territory of the lawmaking sovereign just to eliminate privileges that a group would otherwise receive. FN6 These two rough categories of structural unusualness are neatly underscored by the Supreme Court's two most recent statements on equal-protection law in the arena of sexual orientation: Romer and Wind- sor. FN7 Both will be considered in detail below. 1 The first species of structural irregularity relat- ing to the type of harm inflicted upon the injured class is powerfully captured by Romer. There, the Supreme Court struck down a Colorado constitu- tional amendment that prohibited all state entities from promulgating civil-rights protections specific- ally designated for homosexuals (or bisexuals) in any context. Romer, 517 U.S. at 635. The Court was moved to do so by the fact that the disadvantage imposed [was] born of animosity to- ward the class of persons affected. Id. at 634. That is to say, animus entered the stage in Romer for the principal reason that the constitutional amendment before the Court was strikingly pervasive in ob- structing homosexuals from obtaining any specially designated civil-rights protections whatsoever. See id. at 627 (Sweeping and comprehensive is the change in legal status effected by this law .); id. at 632 ([T]he amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group ....); id. at 633 (Amendment 2 ... identifies persons by a single trait and then denies them protection across the board.). That sort of blanket burdening of a group and its rights, the Court cautioned, was unheard of and, as a consequence, inherently suspicious. See Page 24 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (44 of 518) id. at 633 (The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurispru- dence.); id. (It is not within our constitutional tra- dition to enact laws of this sort.). Stated differ- ently, Romer applied the animus doctrine because a State had passed a law that pervasively constricted the rights of a group in a way that few, if any, laws had previously done. Cf. Equality Found. of Great- er Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 299 (6th Cir.1997) ([T]he Romer majority's rejection of rational relationship assessment hinged upon the wide breadth of Colorado Amendment 2, which deprived a politically unpopular minority of the opportunity to secure special rights at every level of state law.). 2 *25 The second species of structural irregular- ity is on display in Windsor. Specifically, prior to passage of DOMA, Congress had deferred to the States' definitional authority over marriage, an au- thority they enjoyed as part of their traditional po- lice power in the domestic-relations sphere. See Windsor, 133 S.Ct. at 2691 (depicting family law as an area that has long been regarded as a virtually exclusive province of the States (internal quotation marks omitted)); id. (The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations ....); id. ([T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce .... (alteration in original) (internal quotation marks omitted)). DOMA repres- ented a radical departure from that tradition, and it was that departure that brought animus concerns to the fore in Windsor: When the State used its historic and essential au- thority to define the marital relation in this way, [i.e., to allow same-sex marriage,] its role and its power in making the decision enhanced the re- cognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define mar- riage. [D]iscriminations of an unusual character especially suggest careful consideration to de- termine whether they are obnoxious to the consti- tutional provision. Id. at 2692 (second alteration in original) (quoting Romer, 517 U.S. at 633) (internal quota- tion marks omitted). Shortly thereafter in Windsor, the Supreme Court drove the same point home: The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State's classi- fications have in the daily lives and customs of its people. DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibil- ities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. Id. at 2693 (emphasis added). With these pas- sages, the Court left no doubt that the animus doc- trine was relevant to the disposition of the case be- cause the federal government had gone beyond the federalism pale and intruded into a province histor- ically monopolized by the States, and, what is more, that the federal government had done so solely to restrict the rights that would have other- wise been afforded to gay and lesbian individuals. See Conkle, supra, at 40 (interpreting the federal- ism concerns in Windsor as directly linked to [the Court's] animus rationale). C When a litigant presents a colorable claim of animus, the judicial inquiry searches for the forego- ing clues. What happens when the clues are all gathered and animus is detected? The answer is simple: the law falls. Remember that under ration- al-basis review, the most forgiving of equal- protection standards, a law must still have a legit- imate purpose. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84, 120 S.Ct. 631, 145 L.Ed.2d 522 Page 25 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (45 of 518) (2000) (explaining that when conducting rational basis review we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achieve- ment of any combination of legitimate purposes that we can only conclude that the [government's] actions were irrational (alterations in original) (internal quotation marks omitted)); United States v. Angelos, 433 F.3d 738, 754 (10th Cir.2006) (To pass muster under the rational basis test, [the stat- ute] must have a legitimate purpose .... (internal quotation marks omitted)). A legislative motive qualifying as animus is never a legitimate purpose. See Romer, 517 U.S. at 632 ([T]he amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.); Cleburne, 473 U.S. at 448 ([M]ere negative attitudes, or fear, ... are not permissible bases for [a statutory classification].); Moreno, 413 U.S. at 534 ([The] amendment was intended to prevent socalled hippies' and hippie communes' from participating in the food stamp program, and such a bare congressional desire to harm a politically unpopular group cannot consti- tute a legitimate governmental interest.). In other words, once animus is detected, the inquiry is over: the law is unconstitutional. *26 This fearsome quality of animus jurispru- dence has led one commentator to refer to it, most aptly, as a doctrinal silver bullet. Pollvogt, supra, at 889. Conversely, if animus is not properly in- vokedviz., if the clues do not add up to a picture of hostile lawmakingthe analysis returns to the traditional rational-basis realm and the Court com- mences a more generous search for any reasonably conceivable state of facts that could provide a ra- tional basis for the classification. Garrett, 531 U.S. at 367 (emphasis added) (internal quotation marks omitted); accord Ebonie S., 695 F.3d at 1059 . II Armed with these background principles, I am now well-situated to examine how animus oper- atesor does notin the context of the instant ap- peal. To review, ordinarily, a law falls prey to anim- us only where there is structural evidence that it is aberrational, either in the sense that it targets the rights of a minority in a dangerously expansive and novel fashion, see Romer, 517 U.S. at 63135, or in the sense that it strays from the historical territory of the lawmaking sovereign just to eliminate priv- ileges that a group would otherwise receive, see Windsor, 133 S.Ct. at 268995. The Oklahoma law at issue before us today is aberrational in neither re- spect. In fact, both considerations cut strongly against a finding of animus. FN8 A To begin, SQ 711 is not nearly as far-reaching as the state constitutional amendment that Romer invalidated. The amendment taken up by Romer forbade any unit of state government from extend- ing to gay and lesbian persons any special priv- ileges or protections. See 517 U.S. at 624 (reciting the language of the amendment); see also id. at 632 ([T]he amendment has the peculiar property of im- posing a broad and undifferentiated disability on a single named group ....); id. at 633 (Amendment 2 ... identifies persons by a single trait and then denies them protection across the board.). SQ 711 cannot plausibly be painted with this brush. Unlike the amendment in Romer, SQ 711 does not deprive homosexuals of civil-rights protection across the board, id. at 633, in a [s]weeping and compre- hensive fashion, id. at 627. It excludes them from a single institution: marriage. For animus purposes, SQ 711 is an exclusion of a much different charac- ter than the Colorado amendment in Romer, which shut the door for homosexuals on myriad rights to which they might otherwise have gained access through the political process. Furthermore, any fair historical narrative belies the theory that SQ 711 is unprecedented in our jur- isprudence. Id. at 633. Explicit bans on same-sex marriage are not especially venerable, but neither are they in their infancy. See Nancy Kubasek et al., Page 26 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (46 of 518) Amending the Defense of Marriage Act: A Neces- sary Step Toward Gaining Full Legal Rights for SameSex Couples, 19 Am. U.J. Gender Soc. Pol'y & L. 959, 964 n.32 (2011) (Maryland became the first state to define marriage as between a man and a woman in 1973....). *27 More to the point, SQ 711 and parallel en- actments have only made explicit a tacit rule that until recently had been universal and unquestioned for the entirety of our legal history as a country: that same-sex unions cannot be sanctioned as mar- riages by the State. See Windsor, 133 S.Ct. at 2689 ([M]arriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.). Even before the States made the rule explicit, mar- riage laws that lacked express gender limitations had the same force and effect as bans on same-sex marriage. See Dean v. District of Columbia, 653 A.2d 307, 310 (D.C.1995) (Ferren, J., concurring in part and dissenting in part, joined by Terry and Steadman, JJ.); Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky.Ct.App.1973); Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 953 (Mass.2003); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 186 (Minn.1971); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 6 (N.Y.2006) (plurality opinion); Baker v. State, 170 Vt. 194, 744 A.2d 864, 869 (Vt.1999); see also Lewis v. Harris, 188 N.J. 415, 908 A.2d 196, 208 (N.J.2006) (With the exception of Mas- sachusetts, every state's law, explicitly or impli- citly, defines marriage to mean the union of a man and a woman. (emphases added)). Far from being unprecedented, then, Romer, 517 U.S. at 633, same-sex marriage bans were literally the only pre- cedent in all fifty states until little more than a dec- ade ago. See Michael Sant' Ambrogio, The Ex- traLegislative Veto, 102 Geo. L.J. 351, 378 (2014) (noting that Massachusetts became the first state in the country to legally acknowledge same-sex mar- riages in 2003); see also David B. Oppenheimer et al., Religiosity and SameSex Marriage in the United States and Europe, 32 Berkeley J. Int'l L. 195, 195 (2014) (Twenty years ago, no country in the world and not a single U.S. state had authorized same-sex marriage.). Whether right or wrong as a policy matter, or even right or wrong as a funda- mental-rights matter, this ancient lineage estab- lishes beyond peradventure that same-sex marriage bans are not qualitatively unprecedentedthey are actually as deeply rooted in precedent as any rule could be. FN9 See Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 8 (Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.). A useful point of comparison in this regard can be located in the Ninth Circuit's Proposition 8 case, which nicely demonstrates the sort of qualitatively abnormal lawmaking that triggers the animus doc- trine, and nicely demonstrates the absence of any such lawmaking here. By way of background on the Proposition 8 case, prior to the pertinent federal litigation, Cali- fornia had codified a statute withholding the offi- cial designation of marriage from same-sex couples. Perry v. Brown, 671 F.3d 1052, 1065 (9th Cir.2012), vacated on other grounds sub nom. Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). The California Su- preme Court declared the statute unlawful as a viol- ation of the state constitution. Id. at 1066. Follow- ing the court's decision, a referendum succeeded in adding an amendmentProposition 8to the Cali- fornia Constitution defining marriage in man- woman terms, thereby nullifying the judicial rul- ing. Id. at 1067. *28 The Ninth Circuit struck down Proposition 8 on federal constitutional grounds. Id. at 1096. It began its analysis by noting that Proposition 8 worked a singular and limited change to the Cali- fornia Constitution: it stripped same-sex couples of Page 27 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (47 of 518) the right to have their committed relationships re- cognized by the State with the designation of marriage, which the state constitution had previ- ously guaranteed them. Id. at 1076. In view of that effect, the Ninth Circuit posed the question presen- ted by the appeal thusly: [D]id the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relation- ships dignified by the official status of marriage, and to compel the State and its officials and all others authorized to perform marriage ceremonies to substitute the label of domestic partnership for their relationships? Id. at 1079 (internal quotation marks omitted). The Ninth Circuit stressed the distinction between this removal of an established right and the decision not to confer a right at all. See id. at 107980 (Withdrawing from a disfavored group the right to obtain a designation with significant societal con- sequences is different from declining to extend that designation in the first place.... The action of chan- ging something suggests a more deliberate purpose than does the inaction of leaving it as is.). With the question framed in this fashion, the Ninth Circuit determined that Proposition 8 failed constitutional scrutiny under Romer's animus ana- lysis. See Perry, 671 F.3d at 1081. In reaching that determination, the Perry court returned time and time again to the fact that Proposition 8 had erased a previously-existing right to marriage that had been enjoyed by same-sex couples before the rati- fication of the amendment. See id. (Like Amend- ment 2 [in Romer], Proposition 8 has the peculiar property of withdraw[ing] from homosexuals, but no others, an existing legal righthere, access to the official designation of marriagethat had been broadly available .... (second alteration in original) (emphases added) (citation omitted) (quoting Romer, 517 U.S. at 632)); id. (Like Amendment 2, Proposition 8 ... carves out an ex- ception to California's equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed .... (emphasis ad- ded) (internal quotation marks omitted)); id. ([T]he surgical precision with which [Proposition 8] excises a right belonging to gay and lesbian couples makes it even more suspect. A law that has no practical effect except to strip one group of the right to use a state-authorized and socially mean- ingful designation is all the more unprecedented and unusual than a law that imposes broader changes, and raises an even stronger inference that the disadvantage imposed is born of animosity to- ward the class of persons affected. (emphases ad- ded) (quoting Romer, 517 U.S. at 63334)); id. at 1096 (By using their initiative power to target a minority group and withdraw a right that it pos- sessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. (emphasis added)). *29 There is no need in the context of this case to pass upon the correctness vel non of the Ninth Circuit's ultimate conclusionviz., that Proposition 8 was unconstitutional under Romer. The essential point to glean from Perry is that it properly recog- nized the key factor that brought Proposition 8 within the realm of Romer: that Proposition 8 re- moved from homosexuals a right they had previ- ously enjoyedmarriagejust as Amendment 2 did in Romer with respect to the right to secure civil-rights protections through the political pro- cess. See Romer, 517 U.S. at 632 ([T]he amend- ment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and ... invalid form of legisla- tion.). That is precisely the sort of atypical, hostile state action that exposes a law to animus analysis. And it is precisely the sort of action that is nowhere to be seen in the case before us today. Quite unlike the California situation, it is pat- ent and undisputed that gay and lesbian couples in Oklahoma never had the right to marryas such couples never had the right to marry in any State that did not expressly permit them to. See Lewis, Page 28 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (48 of 518) 908 A.2d at 208 (With the exception of Massachu- setts, every state's law, explicitly or implicitly, defines marriage to mean the union of a man and a woman. (emphases added)). The Oklahoma law effectuated no change at all to the status quo in that regard: the plaintiffs could not marry in Oklahoma before SQ 711, and they could not marry after it. A studious and conscientious reading of Romer seem- ingly led the Ninth Circuit in Perry to the conclu- sion that the deprivation of a right that would other- wise exist makes all the difference in deciding whether or not to invoke the strong medicine of the animus doctrine. Cf. Sevcik v. Sandoval, 911 F.Supp.2d 996, 1019 (D.Nev.2012) (Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to [a same-sex marriage ban].). As noted, there was no preexisting recognized right to same-sex marriage in Oklahoma. In other words, there was no predicate right to same-sex marriage to support the Perry deprivation scenario. Thus, my examination of Perry underscores the absence here of the sort of qualitatively abnormal lawmaking that customarily triggers the animus doctrine. In sum, for the foregoing reasons, it is patent that Romer's animus analysis cannot support an as- sault on SQ 711. B Just like the first factor, the second factorrelating to the historical role of the law- making sovereign in regulating the field in ques- tionalso signals the inapplicability of the animus doctrine on these facts. As I discussed earlier, inso- far as Windsor drew upon animus law, it did so be- cause DOMA veered sharply from the deferential customs that had previously defined the contours of federal policy regarding State marriage regulations. See Part I.B.2, supra. In contrast, when the same- sex marriage provisions of a State are the subject of the challenge, those same federalism concerns found in Windsor militate powerfully in the oppos- ite direction viz., against an animus determina- tion. To see why this is so, recall that in striking down the federal statute, DOMA, Windsor returned repeatedly to the fact that state legislatures are en- trusted in our federalist system with drawing the boundaries of domestic-relations lawso long as those boundaries are consistent with the mandates of the federal Constitution. See 133 S.Ct. at 2691 (State laws defining and regulating marriage, of course, must respect the constitutional rights of per- sons, but, subject to those guarantees, regulation of domestic relations is an area that has long been re- garded as a virtually exclusive province of the States. (citation omitted) (internal quotation marks omitted)); id. at 2692 (Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.). But, when the subject of the challenge is a State-enacted same- sex marriage ban, those federalism interests come into play on the other side of the board . Id. at 2697 (Roberts, C.J., dissenting). Far from showing animus, then, Windsor's concern with traditional federalist spheres of power is a compelling indica- tion that SQ 711which is a natural product of the State of Oklahoma's sphere of regulatory con- cernis not inspired by animus. *30 To summarize, the two factors that courts are duty-bound to consider in assaying for animus both counsel unequivocally here against an animus finding. Simply put, boiling these two factors down to their essence and applying them here, the chal- lenged Oklahoma law does not sweep broadlyit excludes gays and lesbians from the single institu- tion of marriageand it cannot sensibly be depic- ted as unusual where the State was simply exer- cising its age-old police power to define marriage in the way that it, along with every other State, al- ways had. See Conkle, supra, at 40 (When the question turns from DOMA to state laws, ... there are ... reasons for avoiding animus-based reasoning. In the first place, the state-law context eliminates the federalism concern that was present in Windsor and that the Court directly linked to its animus ra- Page 29 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (49 of 518) tionale.). Romer and Windsor both involved extraordin- arily unusual pieces of lawmaking: Romer because Colorado embedded in its constitution the depriva- tion of all specially designated civil-rights protec- tions that an entire group might otherwise enjoy, and Windsor because Congress exercised federal power in a state arena for the sheer purpose of ex- cluding a group from an institution that it otherwise had a virtually nonexistent role in defining. In stark contrast, SQ 711 formalized a definition that every State had employed for almost all of American his- tory, and it did so in a province the States had al- ways dominated. Consequently, SQ 711 is not plagued by impermissible animus. III For the foregoing reasons, I conclude that the district court correctly found that the animus doc- trine was inapplicable here. I respectfully concur. KELLY, Circuit Judge, concurring in part and dis- senting in part. Plaintiffs made an unusual decision in this case. FN1 They challenged only the constitutional amendment concerning same-gender marriage. Okla. Const. art. II, 35. They ignored the earlier- enacted statutory provisions which define and only recognize marriage as between persons of opposite gender. Okla. Stat. tit. 43, 3(A), 3.1. They also sued the wrong defendant when it comes to non- recognition of out-of-state same-gender marriages; the clerk has no occasion to pass on the validity of out-of-state marriages. The district court noticed both of these problems, yet entered an injunction concerning the constitutional amendment's defini- tion of marriage. See Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1296 (N.D.Okla.2014); Fed.R.Civ.P. 65(d)(1)(C) (requiring specificity in injunctions). I concur with the court that the Barton couple lacks standing to challenge the non-recognition pro- vision, but I differ on whether the law of the case applies. I dissent from this court's conclusion that the Plaintiffs have standing even though they did not challenge the underlying statutes. Thus, I would not reach the merits for lack of standing. As I have not persuaded my colleagues, were I to reach the merits of the Bishop couple's claim, I would dissent from this court's conclusion that Oklahoma's defini- tion of marriage is invalid because marriage is a fundamental right and the State's classification can- not survive strict scrutiny. Instead, I would apply rational basis review and uphold Oklahoma's defin- ition of marriage. A. StandingFailure to Challenge the Underlying Statutes *31 Plaintiffs (Bishop couple) failed to chal- lenge Oklahoma's statutory requirement concerning Who may marry which provides: Any unmarried person who is at least eighteen (18) years of age and not otherwise disqualified is capable of contracting and consenting to mar- riage with a person of the opposite sex. Okla. Stat. tit. 43, 3(A). The district court was aware of the statutory prohibition and stated that no party addressed the standing problems, but was satisfied that enjoining section A of the constitutional provision redresses a concrete injury suffered by the Bishop couple. Bishop, 962 F.Supp.2d at 1259 n. 2, 1274 n. 19, 1279, 1296. Section A provides: Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmar- ried couples or groups. Okla. Const. art. II, 35(A). Section C adds criminal liability for non-compliance. Id. 35(C). No matter how important the issue, a federal court must consider standing, including whether the in- jury is likely to be redressed by a favorable de- cision. Hollingsworth v. Perry, U.S. , Page 30 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (50 of 518) , 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013). Plaintiffs (Barton couple) failed to challenge Oklahoma's statutory non-recognition requirement which provides: A marriage between persons of the same gender performed in another state shall not be recog- nized as valid and binding in this state as of the date of the marriage. Okla. Stat. tit. 43, 3.1. The constitutional non-recognition provision is the same. Okla. Const. art. II, 35(B). The district court correctly ob- served that any injury from nonrecognition comes from both of these provisions. Bishop, 962 F.Supp.2d at 1266. Enjoining section A of the constitutional amendment would not solve the Bishop couple's problem because the statute, Okla. Stat. tit. 43, 3(A), contemplates marriage with a person of the opposite sex. Enjoining section B of the constitu- tional amendment would not solve the Barton couple's problem because the statute, Okla. Stat. tit. 43, 3. 1, proscribes the same thing: recognition of same-gender marriages from other states. According to this court, the statutory provi- sions are not enforceable independent of the consti- tutional provisions. But that cannot be right. In Ok- lahoma, marriage arises out of contract and requires consent by legally competent parties. Okla. Stat. tit. 43, 1. Okla. Stat. tit. 43, 3(A) imposes several requirements including being (1) unmarried, (2) at least age 18, and (3) not otherwise disqualified, for the capacity to contract and consent to opposite gender marriage. The constitutional provision defines marriage as one man and one woman and also provides a rule of construction for the constitu- tion and any other provision of law. Okla. Const. art. II, 35(A). Although the non-recognition pro- visions have identical language, one would not pre- sume that the electorate would engage in a useless act. If anything, the language in the constitutional provisions suggests an intent to augment the stat- utory provisions, as was done in other states. See Bishop, 962 F.Supp.2d at 128384 (suggesting sen- timent to create an independent bar); see also supra n. 1. Indeed, that is the argument of the State. Aplt. Br. 33. *32 The most serious problem with this court's analysis is that it is derived from cases where provi- sions conflict; it would be an extravagant reading to conclude that Oklahoma is not empowered to enact a consistent and clarifying constitutional provision without replacing the statutory provision. The rule stated in Fent v. Henry, 257 P.3d 984 (Okla.2011), that a constitutional amendment takes the place of all former laws existing upon the subject with which it deals, rests upon the principle that when it is apparent from the framework of the revision that whatever is embraced in the new law shall control and whatever is excluded is discarded, decisive evid- ence exists of an intention to prescribe the latest provisions as the only ones on that subject which shall be obligatory. Id. at 992 n. 20. We have no such decisive evidence in this case because there is no framework of revision when the constitutional amendment in no way contradicts the statutes. Al- though this court contends that the constitutional amendment is a complete scheme, Lankford v. Menefee, 45 Okla. 228, 145 P. 375, 376 (Okla.1914), concerning same-gender marriage, the amendment certainly does not replace the other marriage qualifications contained in Okla. Stat. tit. 43, 3(A). Nor should it replace the qualification with a person of the opposite sex. Of course, the most important canon of construction must be fidel- ity to the intent of the electorate and its representat- ives: a canon that is not well-served by disregarding Oklahoma's statutes and focusing only on the amendment. This court's argument that it can envi- sion no scenario where the clerk could enforce the statute but not the amendment fails to appreciate the independent and complementary nature of the Page 31 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (51 of 518) provisions. Invalidating state law provisions as violative of the Constitution is one of the most serious tasks performed by a federal court. Though the Plaintiffs apparently thought otherwise, state statutes do mat- ter. Plaintiffs, who have the burden on standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), cannot show redressability. B. Law of the Case The district court was correct in concluding that the Barton couple lacks standing to challenge the non-recognition constitutional provision. See Bishop, 962 F.Supp.2d at 127273. This court con- cludes that the law of the case doctrine extended to this challenge, and the court clerk would have been the proper defendant but for changed circum- stances, i.e., the affidavit of the court clerk. The law of the case doctrine does not apply. The court clerk's duties are ministerial, and she has no author- ity to recognize out-of-state marriages. See Okla. Stat. tit. 43, 5(B)(1) (listing the duties of the clerk). The Barton couple concede that they never asked the court clerk to recognize their California license. The law of the case doctrine is one of discre- tion, not power, and applies only to issues actually decided. Pepper v. United States, U.S. , , 131 S.Ct. 1229, 125051, 179 L.Ed.2d 196 (2011). The issue actually decided in the prior appeal of this case, Bishop I, was that the Attorney General and the Governor were not proper defendants. Bishop v. Oklahoma, 333 F. App'x 361, 365 (10th Cir.2009). We stated: *33 The Couples claim they desire to be married but are prevented from doing so, or they are mar- ried but the marriage is not recognized in Ok- lahoma. These claims are simply not connected to the duties of the Attorney General or the Gov- ernor. Marriage licenses are issued, fees collec- ted, and the licenses recorded by the district court clerks. See Okla. Stat. tit. 28, 31; Okla. Stat. tit. 43, 5. [A] district court clerk is judicial per- sonnel and is an arm of the court whose duties are ministerial, except for those discretionary du- ties provided by statute. In the performance of [a] clerk's ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk's administrative district. Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma's government has no authority to issue a marriage license or record a marriage. Id. at 365 (alterations in original). We stressed that the problem was the alleged injury to the Couples could not be caused by any action of the Oklahoma officials named. Id. In noting that Plaintiffs never sought an injunction, we stressed that the Plaintiffs never identified any action that would be taken by those officials, that they act or refrain from acting. Id. at 365 n. 6. Merely because we described the Plaintiffs' two claims at the beginning of the passage cannot alter the import of what follows. No reasonable reading results in a conclusion that the court clerk was a proper defendant for a challenge to the amend- ment's non-recognition provision. The only func- tions mentioned are issuance of a license, collection of fees, and recording a license. As stated by the district court: The Bishop couple has proven standing because they sought an Oklahoma mar- riage license from Smith, Smith denied them such license, and Smith did so based upon their status as a same-sex couple. Unlike with Part B, the Bishop couple has clearly demonstrated Smith's connection to their injury. Bishop, 962 F.Supp.2d at 1274. Here, the Barton couple had the burden to show that the court clerk had some authority over the nonrecognition provision and that their injuries are fairly traceable to her. Cressman v. Thompson, 719 F.3d 1139, 114546 (10th Cir.2013); Bronson v. Swensen, 500 F.3d 1099, 110910 (10th Cir.2007). Page 32 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (52 of 518) Nothing in Bishop I remotely suggested that the court clerk was the proper defendant for any challenge. To the contrary, the panel discussed the clerk's authority and that recognition of marriages is within the administration of the judiciary. Bish- op, 333 F. App'x at 365. Moreover, the panel in Bishop I relied heavily on Bronson. Bronson stressed that a plaintiff must establish that this de- fendant caused the injury, and an injunction against this defendant would provide relief. 500 F.3d at 111112. Merely because the clerk is considered judicial personnel and has ministerial power over some aspects of marriage cannot change the fact that she has no power to recognize out-of-state mar- riages. The district court's analysis is consistent with the care this court has taken in the past with standing. See Cressman, 719 F.3d at 114547; Bronson, 500 F.3d at 111112. The standing prob- lem is of the Barton couple's own making: as this court notes, Plaintiffs could very easily have sought to file a state tax return and then sued the respons- ible official were they not allowed. In summary, I would hold that the Barton and Bish- op couples lack standing because they failed to challenge Oklahoma's statutes which must be re- spected as an independent bar to relief. I agree with the court that the Barton couple lacks standing be- cause they sued the wrong defendantone with no power to recognize their out-of-state marriage. As I have not persuaded my colleagues on the definition of marriage claim, I proceed to its merits. C. Merits *34 I adhere to my views in Kitchen v. Herbert, F.3d , 2014 WL 2868044, at *33 (10th Cir. June 25, 2014) (Kelly, J., concurring in part and dissenting in part). Same-gender marriage is a public policy choice for the states, and should not be driven by a uniform, judge-made fundamental rights analysis. At a time when vigorous public de- bate is defining policies concerning sexual orienta- tion, this court has intervened with a view of mar- riage ostensibly driven by the Constitution. Unfor- tunately, this approach short-circuits the healthy political processes leading to a rough consensus on matters of sexual autonomy, and marginalizes those of good faith who draw the line short of same- gender marriage. Essentially, relying upon substantive due pro- cess, this court has deduced [a right] from abstract concepts of personal autonomy rather than anchor- ing it to this country's history and legal traditions concerning marriage. See Washington v. Glucks- berg, 521 U.S. 702, 725 (1997). When it comes to deciding whether a state has violated a fundamental right to marriage, the substantive due process ana- lysis must consider the history, legal tradition, and practice of the institution. Id. at 721. Although Plaintiffs remind us history and tradition are not ne- cessarily determinative, Aplee. Br. 65, Oklahoma's efforts to retain its definition of marriage are be- nign, and very much unlike race-based restrictions on marriage invalidated in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). This court's fundamental rights analysis turns largely on certain personal aspects of marriage including the emotional support and public com- mitment inherent in the historically accepted definition of marriage. Kitchen, 2014 WL 2868044, at * 1415 (relying on Turner v. Safley. 482 U.S. 78, 9596, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). But analyzing marriage primarily as the public re- cognition of an emotional union is an a historical understanding of marriage. Western marriage has historically included elements besides emotional support and public commitment, including (1) ex- clusivity, (2) monogamy, (3) non-familial pairs, and (4) gender complementarity, distinct from procre- ation. Not surprisingly, this historical understand- ing and practice is the basis for much of state law. The core marital norms throughout Oklahoma's his- tory have included these elements. See Okla. Stat. tit. 43, 201 (obligation of fidelity); Okla. Const. art. I, 2 (prohibiting polygamy); Okla. Stat. tit. 43, 3(C) (prohibiting incestuous marriage); Okla. Const. art. II, 35(A) (defining marriage as the union of one man and one woman); Okla. Stat. tit. 43, 3(A) (marriage qualifications for opposite- Page 33 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (53 of 518) gender marriage). Plaintiffs essentially argue that the scope of the right is unlimited. Aplee. Br. 65. In Kitchen, this court accepted a similar argument: that the defini- tion of marriage cannot be determined by who has historically been denied access to the right. See Kit- chen, 2014 WL 2868044 at * 18. But the definition of marriage plays an important role in determining what relationships are recognized in the first place. Polygamous and incestuous relationships have not qualified for marriage because they do not satisfy the elements of monogamy and non-familial pairs, regardless of the individual status of the parties (who have historically been denied access to the right). Thus, the traditional elements of marriage have determined the relationships that have been re- cognized, not the other way around. *35 This court shortchanges the analysis of whether the fundamental right to marriage includes same-gender couples by asserting, [o]ne might just as easily have argued that interracial couples are by definition excluded from the institution of mar- riage. Id. at *19; accord Aplee. Br. 66. But, as far as I can tell, no one in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), could have argued that racial homogeneity was an essen- tial element of marriage. Here, the limitation on marriage is derived from the fundamental elements of marriage, elements not implicated in invalidating marriage restrictions on inmates ( Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)) or fathers with support obligations ( Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)). Simply put, none of the Supreme Court cases suggest a definition of marriage so at odds with his- torical understanding. The Court has been vigilant in striking down impermissible constraints on the right to marriage, but there is nothing in the earlier cases suggesting that marriage has historically been defined as only an emotional union among willing adults. Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes, FN2 the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court. APPENDIX A 27 SCHOLARS OF FEDERALISM AND JUDI- CIAL RESTRAINT Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer 46 EMPLOYERS AND ORGANIZATIONS REP- RESENTING EMPLOYERS Attorneys on the Brief: Meghan Bailey, Susan Baker Manning, John V. McDermott, Lauren Schmidt, Margaret Sheer, Michael Louis Whit- lock 57 OTHER FAMILY LAW PROFESSORS Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein 93 INDIVIDUAL FAITH LEADERS IN OK- LAHOMA AND UTAH Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman 9TO5, NATIONAL ASSOCIATION OF WORK- ING WOMEN Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia ACLU OF OKLAHOMA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia ACLU OF UTAH Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia Page 34 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (54 of 518) AFFIRMATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman ALDRICH, JOHN Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz ALL SOULS UNITARIAN CHURCH OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman ALLEN, DOUGLAS W. *36 Attorneys on the Brief: David C. Walker ALVARE, HELEN M. Attorneys on the Brief: Richard D. White AMBROSE, DOUGLAS Attorneys on the Brief: Frank D. Mylar AMERICAN CIVIL LIBERTIES UNION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiessel, John M. Mejia AMERICAN LEADERSHIP FUND Attorneys on the Brief: Frank D. Mylar AMERICAN MILITARY PARTNER ASSOCI- ATION Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man AMERICAN PSYCHOLOGICAL ASSOCIATION Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith AMERICAN SOCIOLOGICAL ASSOCIATION Attorneys on the Brief: Carmine D. Boccuzzi, Mark A. Lightner, Andrew P. Meiser, Andra Troy AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai ANDERSON, JANNA Attorneys on the Brief: Dani Hartvigsen ANDERSON, RYAN Attorneys on the Brief: Michael Francis Smith ANTIDEFAMATION LEAGUE Attorneys on the Brief: Cheryl R. Drazin, Steven M. Freeman, Seth M. Marnin, Rocky Chiu-feng Tsai API EQUALITYLA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia ASIAN AMERICANS ADVANCING JUSTICE, ASIAN AMERICANS ADVANCING JUSTICEASIAN LAW CAUCUS Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia ASIAN AMERICANS ADVANCING JUSTICE, LOS ANGELES Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia ASIAN AMERICANS ADVANCING JUSTICECHICAGO Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia AUSTIN LGBT BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth BAR ASSOCIATION OF SAN FRANCISCO Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth BARDAGLIO, PETER Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping Page 35 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (55 of 518) BASCH, NORMA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth BECKET FUND FOR RELIGIOUS LIBERTY Attorneys on the Brief: Eric C. Rassbach, Asma Tasnim Uddin BELTRAN, LYNN Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison BELZ, HERMAN Attorneys on the Brief: Frank D. Mylar BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai BENNE, ROBERT D. Attorneys on the Brief: Frank D. Mylar BLAIR, MARIANNE Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein BOWLER, SHAUN *37 Attorneys on the Brief: Mark William Mosi- er, Jennifer Schwartz BOYLE, DAVID Attorneys on the Brief: David Boyle CAIN, BRUCE Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz CALIFORNIA Attorneys on the Brief: Kamala D. Harris, Peter Sacks CAMP FIRE GREEN COUNTRY, INC. Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr CARBADO, DEVON Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin CARLSON, ALLAN C. Attorneys on the Brief: Frank D. Mylar CARROLL, JASON S. Attorneys on the Brief: Lynn Dennis Wardle CATHEDRAL OF HOPE OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman CATO INSTITUTE Attorneys on the Brief: Ilya Shapiro, Elizabeth B. Wydra CENTER FOR CONSTITUTIONAL JURISPRU- DENCE Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer CENTRAL CONFERENCE OF AMERICAN RABBIS Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai CHRISTENSEN, LAVAR Attorneys on the Brief: Robert Theron Smith CHURCH OF THE OPEN ARMS OF OK- LAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman CHURCH OF THE RESTORATION OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman CIMARRON ALLIANCE Attorneys on the Brief: Joshua A. Block, Leah Page 36 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (56 of 518) Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia CLAYTON, CORNELL W. Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz COLAGE Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr COLORADO GAY LESBIAN BISEXUAL TRANSGENDER (GLBT) BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth COLORADO WOMEN'S BAR ASSOCIATION Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin CONGREGATION KOLAMI OF SALT LAKE CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman CONNECTICUT Attorneys on the Brief: George Jepsen, Peter Sacks CONSTITUTIONAL ACCOUNTABILITY CEN- TER Attorneys on the Brief: Shapiro Ilya, Elizabeth B. Wydra CONSTITUTIONAL LAW SCHOLARS Attorneys on the Brief: Lori Ann Alvino McGill, Geoffrey R. Stone COONTZ, STEPHANIE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping COTT, NANCY Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping COVENANT NETWORK OF PRESBYTERIANS Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman COX, DUANE MORLEY Attorneys on the Brief: Duane Morley Cox CURTIS, G.M. *38 Attorneys on the Brief: Frank D. Mylar DELAWARE Attorneys on the Brief: Joseph R. Biden III, Peter Sacks DISTRICT OF COLUMBIA Attorneys on the Brief: Irvin B. Nathan, Peter Sacks DITZ, TOBY L. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping DOLOVICH, SHARON Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin DUBLER, ARIELA R. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping EDWARDS, LAURA F. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping EGGEBEEN, DAVID J. Attorneys on the Brief: David C. Walker EMERGENCY INFANT SERVICES Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr EMERSON, MICHAEL O. Attorneys on the Brief: Frank D. Mylar EPISCOPAL DIOCESE OF UTAH Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman Page 37 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (57 of 518) EPWORTH UNITED METHODIST CHURCH OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman EQUAL RIGHTS ADVOCATES Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin EQUALITY UTAH Attorneys on the Brief: Troy L. Booher, Clifford J. Rosky, Noella A. Sudbury, Michael D. Zim- merman FAMILY EQUALITY COUNCIL Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr FAMILY RESEARCH COUNCIL Attorneys on the Brief: Paul Benjamin Linton FELLOWSHIP CONGREGATIONAL UNITED CHURCH OF CHRIST OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman FIRST UNITARIAN CHURCH OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman FLUKE, CHARLES Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison FREEDOM TO MARRY Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth FRIENDS FOR LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUEER CONCERNS Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman GAY & LESBIAN ADVOCATES & DEFENDERS Attorneys on the Brief: Felicia H. Ellsworth, Mark C. Fleming, Leah M. Litman, Dina Bernick Mishra, Kenneth Lee Salazar, Alan E. Schoen- feld, Paul Reinherz Wolfson GEORGE, ROBERT P. Attorneys on the Brief: Michael Francis Smith GEORGE, TIMOTHY Attorneys on the Brief: Frank D. Mylar GIRGIS, SHERIF Attorneys on the Brief: Michael Francis Smith GLMA: HEALTH PROFESSIONALS ADVAN- CING LGBT EQUALITY Attorneys on the Brief: Nicholas M. O'Donnell GROSSBERG, MICHAEL Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping HADASSAH, THE WOMEN'S ZIONIST ORGAN- IZATION OF AMERICA, INC. *39 Attorneys on the Brief: Samual P. Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai HAIDERMARKEL, DONALD P. Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz HARTOG, HENDRIK Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping HAWKINS, ALAN J. Attorneys on the Brief: Lynn Dennis Wardle HAYASHI, SCOTT Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman HERMAN, ELLEN Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping HERO, RODNEY Page 38 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (58 of 518) Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz HINDU AMERICAN FOUNDATION Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai HISPANIC NATIONAL BAR ASSOCIATION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia HISTORIANS OF ANTIGAY DISCRIMINATION Attorneys on the Brief: Katie D. Fairchild, Madeline H. Gitomer, Jessica Black Livingston, Katherine A. Nelson, Aaron M. Paul, Erica Knievel Songer, Catherine Emily Stetson, Mary Helen Wimberly HODES, MARTHA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping HOLLINGER, JOAN HEIFETZ Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC Attorneys on the Brief: David Scott Flugman HUMAN RIGHTS CAMPAIGN Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia HUNTER, NAN D. Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin ILLINOIS Attorneys on the Brief: Lisa Madigan, Peter Sacks INTERFAITH ALLIANCE FOUNDATION Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai INTERFAITH ALLIANCE OF COLORADO Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai IOWA Attorneys on the Brief: Tom Miller, Peter Sacks JAMES, HAROLD Attorneys on the Brief: Frank D. Mylar JAPANESE AMERICAN CITIZENS LEAGUE Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai JEWISH SOCIAL POLICY ACTION NETWORK Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai JOHNSON, BYRON R. Attorneys on the Brief: David C. Walker JOSLIN, COURTNEY Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein JUSTICE, STEVEN Attorneys on the Brief: Frank D. Mylar KERBER, LINDA K. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping KESHET Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai KESSLERHARRIS, ALICE *40 Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping KOONS, ROBERT C. Page 39 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (59 of 518) Attorneys on the Brief: Frank D. Mylar KURTZ, STANLEY Attorneys on the Brief: Frank D. Mylar LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Attorneys on the Brief: Jennifer C. Pizer, Susan Sommer, Camilla Taylor, Kenneth D. Upton LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia LEE, TAEKU Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz LEGAL MOMENTUM Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin LEGAL VOICE Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin LEVI, MARGARET Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz LEWIS, GREGORY B. Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz LGBT & ALLIED LAWYERS OF UTAH BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth LIBERTY COUNSEL, INC. Attorneys on the Brief: Anita Staver, Mathew D. Staver LITTLETON, CHRISTINE A. Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin LOVE HONOR CHERISH Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth LUTHERAN CHURCHMISSOURI SYNOD Attorneys on the Brief: Anthony T. Caso, Alexan- der Dushku, Richard Shawn Gunnarson, Justin W. Starr MAINE Attorneys on the Brief: Janet T. Mills, Peter Sacks MARRIAGE EQUALITY USA Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth MARTINEZEBERS, VALERIE Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz MARYLAND Attorneys on the Brief: Douglas F. Gansler, Peter Sacks MASSACHUSETTS Attorneys on the Brief: Martha Coakley, Michelle L. Leung, Jonathan B. Miller, Genevieve C. Nadeau, Peter Sacks MAY, ELAINE TYLER Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping MAYERI, SERENA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping MAYFLOWER CONGREGATIONAL UNITED CHURCH OF CHRIST OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman MCCANN, MICHAEL Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz MCDERMOTT, GERALD R. Page 40 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (60 of 518) Attorneys on the Brief: Frank D. Mylar MCHUGH, PAUL Attorneys on the Brief: Gerard Vincent Bradley, Kevin Trent Snider MCIFF, KAY Attorneys on the Brief: Robert Theron Smith METHODIST FEDERATION FOR SOCIAL AC- TION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman METROPOLITAN COMMUNITY CHURCHES Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai MINNESOTA LAVENDER BAR ASSOCIATION *41 Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth MINTZ, STEVE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping MOORE, RUSSELL Attorneys on the Brief: Frank D. Mylar MORE LIGHT PRESBYTERIANS Attorneys on the Brief: Samual P. Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai MORMONS FOR EQUALITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman MT. TABOR LUTHERAN CHURCH OF SALT LAKE CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman NAACP SALT LAKE BRANCH & NAACP TRI STATE CONFERENCE OF IDAHO, NEVADA AND UTAH Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia NATIONAL ACTION NETWORK Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY Attorneys on the Brief: Stephen M. Crampton, Mary Elizabeth McAlister NATIONAL ASSOCIATION OF EVANGELIC- ALS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr NATIONAL ASSOCIATION OF WOMEN LAW- YERS Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin NATIONAL COUNCIL OF JEWISH WOMEN Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai NATIONAL COUNCIL OF LA RAZA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia NATIONAL GAY AND LESBIAN TASK FORCE Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia NATIONAL ORGANIZATION FOR WOMEN FOUNDATION Page 41 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (61 of 518) Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin NATIONAL WOMEN'S LAW CENTER Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin NEHIRIM Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai NELSON, MERRILL Attorneys on the Brief: Robert Theron Smith NERO, NICHOLAS Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison NEW HAMPSHIRE Attorneys on the Brief: Joseph A. Foster, Peter Sacks NEW MEXICO Attorneys on the Brief: Gary K. King, Peter Sacks NEW MEXICO LESBIAN AND GAY LAWYERS ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth NEW YORK *42 Attorneys on the Brief: Peter Sacks, Eric T. Schneiderman O'GRADY, CLAUDIA Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW OUTLAWS Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth OKLAHOMANS FOR EQUALITY Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia OREGON Attorneys on the Brief: Ellen F. Rosenblum, Peter Sacks OUTSERVESLDN Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man PAKALUK, CATHERINE R. Attorneys on the Brief: David C. Walker PAQUETTE, ROBERT Attorneys on the Brief: Frank D. Mylar PARENTS, FAMILIES AND FRIENDS OF LES- BIANS AND GAYS, INC. Attorneys on the Brief: Andrew John Davis, Jiyun Cameron Lee PEOPLE FOR THE AMERICAN WAY FOUNDA- TION Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai PLECK, ELIZABETH Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping POLIKOFF, NANCY Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin PRESBYTERIAN WELCOME Attorneys on the Brief: Samual P. Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai Page 42 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (62 of 518) PRICE, JOSEPH Attorneys on the Brief: David C. Walker PUBLIC ADVOCATES, INC. Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia QLAWTHE GLBT BAR ASSOCIATION OF WASHINGTON Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth RAHE, PAUL A. Attorneys on the Brief: Frank D. Mylar RECONCILING MINISTRIES NETWORK Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman RECONCILINGWORKS: LUTHERANS FOR FULL PARTICIPATION Attorneys on the Brief: Samual P. Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai RECONSTRUCTIONIST RABBINICAL ASSOCI- ATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman RECONSTRUCTIONIST RABBINICAL COL- LEGE Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman REGNERUS, MARK D. Attorneys on the Brief: David C. Walker RELIGIOUS INSTITUTE, INC. Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai REYNOLDS, MICHAEL A. Attorneys on the Brief: Frank D. Mylar RHODE ISLAND Attorneys on the Brief: Peter F. Kilmartin, Peter Sacks ROVIG, STANFORD Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison SCHULTZ, VICKI *43 Attorneys on the Brief: Marcia D. Greenber- ger, Cortelyou Kenney, Emily Martin SEARS, BRAD Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin SEGURA, GARY Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz SHAMMAS, CAROLE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping SHANLEY, MARY Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping SHERRILL, KENNETH Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz SHIFFRIN, SEANA Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin SIKH AMERICAN LEGAL DEFENSE AND EDUCATION FUND Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai SMITH, CHARLES ANTHONY Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz SNOW, LOWRY Page 43 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (63 of 518) Attorneys on the Brief: Robert Theron Smith SOCIETY FOR HUMANISTIC JUDAISM Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai SOUTH ASIAN AMERICANS LEADING TO- GETHER Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai SOUTHWEST WOMEN'S LAW CENTER Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin ST. STEPHEN'S UNITED METHODIST CHURCH OF NORMAN, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman STANLEY, AMY DRU Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping STATE OF ALABAMA Attorneys on the Brief: Thomas Molnar Fisher, Luther Strange STATE OF ALASKA Attorneys on the Brief: Thomas Molnar Fisher, Michael C. Geraghty STATE OF ARIZONA Attorneys on the Brief: Thomas Molnar Fisher, Thomas C. Horne STATE OF COLORADO Attorneys on the Brief: Thomas Molnar Fisher, John Suthers STATE OF IDAHO Attorneys on the Brief: Thomas Molnar Fisher, Lawrence G. Wasden STATE OF INDIANA Attorneys on the Brief: Thomas Molnar Fisher, Gregory F. Zoeller STATE OF KANSAS Attorneys on the Brief: Jeffrey A. Chanay, Bryan Charles Clark STATE OF MICHIGAN Attorneys on the Brief: Aaron Lindstrom, Bern- ard Eric Restuccia, Bill Schuette STATE OF MONTANA Attorneys on the Brief: Thomas Molnar Fisher, Timothy C. Fox STATE OF NEBRASKA Attorneys on the Brief: Jon Bruning, Thomas Molnar Fisher STATE OF OKLAHOMA Attorneys on the Brief: Thomas Molnar Fisher, E. Scott Pruitt STATE OF SOUTH CAROLINA Attorneys on the Brief: Thomas Molnar Fisher, Alan Wilson STONEWALL BAR ASSOCIATION OF GEOR- GIA, INC. Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth STONEWALL BAR ASSOCIATION OF MICHIGAN Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth STONEWALL LAW ASSOCIATION OF GREAT- ER HOUSTON *44 Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth STRAUB, D'ARCY WINSTON Attorneys on the Brief: D'Arcy Winston Straub THE CENTER FOR URBAN RENEWAL AND EDUCATION Attorneys on the Brief: Stephen Kent Ehat Page 44 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (64 of 518) THE CHURCH OF JESUS CHRIST OF LAT- TERDAY SAINTS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr THE COALITION OF AFRICANAMERICAN PASTORS USA Attorneys on the Brief: Stephen Kent Ehat THE EQUALITY NETWORK Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia THE ETHICS & RELIGIOUS LIBERTY COM- MISSION OF THE SOUTHERN BAPTIST CON- VENTION Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr THE FREDERICK DOUGLASS FOUNDATION, INC. Attorneys on the Brief: Stephen Kent Ehat THE OUTLAWS Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth THE UTAH PSYCHOLOGICAL ASSOCIATION Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith TRINITY CHRISTIAN CHURCH OF EDMOND, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman TRUAH: THE RABBINIC CALL FOR HUMAN RIGHTS Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai UNION FOR REFORM JUDAISM Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman UNITARIAN UNIVERSALIST ASSOCIATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman UNITED CHURCH OF CHRIST Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman UNITED CHURCH OF NORMAN, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman UNITED STATES CONFERENCE OF CATHOL- IC BISHOPS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr UNIVERSITY OF OKLAHOMA COLLEGE OF LAW LEGAL GROUP FOR BUILDING TOLER- ANCE AND ACCEPTANCE Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth UPHAM, DAVID R. Attorneys on the Brief: David Robert Upham UTAH PRIDE CENTER Attorneys on the Brief: Clifford J. Rosky, Noella A. Sudbury, Michael D. Zimmerman VERMONT Attorneys on the Brief: Peter Sacks, William H. Sorrell WASHINGTON Attorneys on the Brief: Robert W. Ferguson, Peter Sacks WELKE, BARBARA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping WESTERN REPUBLICANS Attorneys on the Brief: Stacy A. Carpenter, Ben- nett L. Cohen, Jon R. Dedon, Sean Robert Galla- Page 45 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (65 of 518) gher WILKEN, ROBERT LOUIS Attorneys on the Brief: Frank D. Mylar WINKLER, ADAM Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin WOLFE, CHRISTOPHER *45 Attorneys on the Brief: Frank D. Mylar WOMEN OF REFORM JUDAISM Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai WOMEN'S LAW PROJECT Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin WOMEN'S LEAGUE FOR CONSERVATIVE JUDAISM Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai WOOD, PETER W. Attorneys on the Brief: Frank D. Mylar WORTHAM, DOUGLAS Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison FN* The names of all amicus curiae parties are contained in Appendix A to this Opinion. FN1. Smith also argues that the Barton couple does not have standing to contest Part B of SQ 711 because they did not challenge Okla. Stat. tit. 43, 3. 1, which provides that [a] marriage between per- sons of the same gender performed in an- other state shall not be recognized as valid and binding in this state as of the date of the marriage. We will refer above only to Part A in discussing plaintiffs' failure to challenge the statutory codifications of Ok- lahoma's same-sex marriage policy as it relates to standing. As explained infra, the Barton couple lacked standing to sue be- cause they named a defendant who could not redress their injury. Therefore, there is no need to consider whether they lacked standing for the alternative reason that they failed to challenge the statutory nonrecog- nition provision. See Niemi v. Lasshofer, 728 F.3d 1252, 1260 (10th Cir.2013) (noting that where there are multiple threshold issues that can be resolved without engaging in the merits a court has leeway to choose among them and to take[ ] the less burdensome course (alteration in original) (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431, 436, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007)). FN2. If the court relies on the subjective motivations of lawmakers to determine the constitutionality of Oklahoma's two provi- sions, Smith suggests that one might sur- vive even if the other falls. However, as explained in Kitchen, 2014 U.S.App. LEX- IS 11935, at *97, we conclude that because state laws prohibiting same-sex marriage impinge upon a fundamental right without satisfying the strict scrutiny test, such pro- visions fail regardless of subjective intent. FN3. The remaining prongs of standing as to the Bishop couple's ability to challenge Part A are not contested. We conclude nonetheless the couple has satisfied those prongs. See Alvarado v. KOBTV, L.L.C. (Channel 4 News), 493 F.3d 1210, 1214 n. 1 (10th Cir.2007) (this court has authority to consider standing issues sua sponte). Having ruled that an injunction barring en- Page 46 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (66 of 518) forcement of Part A of SQ 711 redresses the Bishop couple's injuryinability to marrywe have no trouble concluding that they satisfy the traceability require- ment. See Cache Valley Elec. Co. v. Utah Dep't of Transp., 149 F.3d 1119, 1123 (10th Cir.1998) (noting that in many cases, redressability and traceability overlap as two sides of a causation coin (quotation omitted)). The Bishop couple sought a marriage license from Smith's office, but were denied because they are both women. See Papasan v. Allain, 478 U.S. 265, 282 n. 14, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (a defendant responsible for gener- al supervision of the administration by loc- al ... officials of a challenged provision is a proper defendant). And the Bishop couple has identified several negative fin- ancial consequences of that denial. See Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (financial harm caused by challenged pro- vision constitutes injury in fact). FN4. Although the district court declined to rule on whether the plaintiffs asserted a fundamental right, Bishop II, 962 F.Supp.2d at 1285 n. 33, and instead ap- plied rational basis review, id. at 1295, we may affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground, Schanzenbach v. Town of Opal, 706 F.3d 1269, 1272 (10th Cir.2013) (quotation omitted). As in Kitchen, we do not address the question of whether a ban on same-sex marriage might survive lesser forms of scrutiny given our holding that such bans burden fundamental rights. FN5. The law of the case doctrine is inap- plicable when a merits panel considers a jurisdictional issue that was addressed by a motions or mandamus panel. See Kennedy, 273 F.3d at 12991300 (mandamus panel); Stifel, Nicolaus & Co., 81 F.3d at 1544 (motions panel). Bishop I, however, was a fully-reasoned decision by a merits panel. The motions-panel and mandamus-panel exceptions are therefore not germane here. FN6. Though worded somewhat more con- fusingly than Baca, Smith's other central authority for this jurisdictional argument Public Interest Research Group of New Jersey v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir.1997)is to the same ef- fect. There, the Third Circuit cabined the pivotal footnote from Christianson to the transfer context, reasoning that the Su- preme Court could not have intended in one footnote to eviscerate, in all instances, the federal courts' prerogative to revisit im- portant jurisdictional questions. Id. at 118. But the very reason the Magnesium Elektron court reevaluated the jurisdiction- al issue there was that new evidence was presented to the district court which had a direct bearing on the issue of standing. Id. As explained at length below, new evid- ence of this sort is one of the established exceptions to the law of the case, United States v. Irving, 665 F.3d 1184, 1192 n. 12 (10th Cir.2011), and the new evidence in Magnesium Elektron was in fact the exact type of new evidence at issue in the present appeal. Magnesium Elektron is therefore consistent with the approach taken herein. FN7. Insofar as Smith is arguing, impli- citly, that application of law of the case works a manifest injustice, that argument is unconvincing. If any party here can make a colorable claim of injustice, it is the Barton couple, who named as a defend- ant the official that the Bishop I panel told them to name and who find out today that they should have named someone else and, Page 47 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (67 of 518) as a result, are denied the satisfaction of an explicit invalidation of Part B. FN8. The new-evidence exception is often set forth with reference to new evidence at a new trial. See, e.g., Irving, 665 F.3d at 1192 n. 12; Clark, 590 F.3d at 1140. As the authorities assembled in this section show, a new trial is not necessary for the produc- tion of new evidencea summary-judg- ment affidavit can suffice. FN9. Had Bishop I been published, its force as law of the case would have been significantly strengthened by its status as law of the circuit as well. See LaShawn A., 87 F.3d at 1395 ([W]hen both [the law of the case and the law of the circuit] are at work, the law-of-the-circuit doctrine should increase a panel's reluctance to re- consider a decision made in an earlier ap- peal in the same case.). Because the order was unpublished, law-of-the-case prin- ciples are the only constraint here. See 10th Cir. R. 32.1(A) (Unpublished de- cisions are not precedential, but may be cited for their persuasive value. They may also be cited under the doctrines of law of the case, claim preclusion, and issue pre- clusion .); Federal Practice 4478.2, at 731 (If an unpublished opinion does not command precedential force under circuit rules, law-of-the-case rules hold full sway.). FN10. The plaintiffs assert that Smith's af- fidavit is contradicted by her answer to the complaint, wherein she admit[ted] that Defendants, and those subject to their su- pervision, direction and control, are re- sponsible for the enforcement of the laws challenged by Plaintiffs' First Amended Complaint. In rebuttal, Smith notes that the challenged laws referenced in the an- swer did not include the non-recognition provision, since the first amended com- plaint did not address that provision. Smith has the better argument. The parties appar- ently came to terms on this point in the dis- trict court, where a minute sheet reflected their consensus that plaintiffs' motion for summary judgment [would] address [the non-recognition provision], notwithstand- ing the absence of such language in the Amended Complaint. (Emphasis added). Although the complaint included some stray passages that appeared to attribute all of the plaintiffs' injuries to SQ 711 as a whole, it never explicitly mentioned the non-recognition provision and repeatedly suggested that it was the ban, in conjunc- tion with DOMA, that caused the nonre- cognition injury. Smith's admission in her answer is therefore irrelevant to this is- sue. FN11. The authorities cited by Bishop I for its standing determination either impose responsibilities on court clerks with respect to issuing marriage licenses, see Okla. Stat. tit. 28, 31; id. tit. 43, 5, or examine the general relationship between court clerks and the judicial branch, see Speight v. Presley, 203 P.3d 173 (Okla.2008). None of the authorities address the role court clerks play in regards to marriage recogni- tion. FN12. Of course, if the Barton couple had been entitled to a finding of standing on the basis of law of the case, they would not have been required to demonstrate their standing before the district court, or here. That is to say, had there been no new evid- ence to sufficiently undermine the effect of the law of the case of Bishop I, then Bish- op I would have been enough, without more, to establish standing. See Christian- son, 486 U.S. at 816 n. 5 (There is no reason to apply law-of-the-case principles less rigorously to [a jurisdictional issue].). Page 48 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (68 of 518) But since there was new evidence that did effectively undermine Bishop I's non- recognition standing holding, the Barton couple had to meet their summary-judg- ment burden in rebutting that evidence. See, e.g., Clark, 590 F.3d at 1140 (describing new evidence as a reason to depart from the [law of the case] doctrine (emphasis added)); United States v. Parada, 577 F.3d 1275, 1280 (10th Cir.2009) (same). FN13. That the plaintiffs' action was in part for a declaratory judgment does not affect the standing analysis. Like any law- suit, a declaratory-judgment action must meet Article III's standing criteria, includ- ing redressability. See Consumer Data In- dus. Ass'n, 678 F.3d at 906; City of Hugo v. Nichols (Two Cases), 656 F.3d 1251, 126364 (10th Cir.2011). As part of the re- dressabilityrequirement, adeclaratory-judg- ment action must be brought against a de- fendant who can, if ordered to do so, rem- edy the alleged injury. See Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir.2011); Bronson, 500 F.3d at 1111. Since Smith cannot provide relief to the Barton couple on their non-recognition claim, they had no standing to sue her, re- gardless of whether the claim was brought in a declaratory-judgment form or not. Similarly, the doctrine of actionable con- duct capable of repetition yet evading re- view is not applicable here. As an initial matter, the doctrine creates an exception to mootness, not to lack of standing. See United States v. Juvenile Male, U.S. , , 131 S.Ct. 2860, 2865, 180 L.Ed.2d 811 (2011) (per curiam); Buch- heit v. Green, 705 F.3d 1157, 1160 (10th Cir.2012); see also Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 124243 (10th Cir.2011) (acknowledging that the capable- of-repetition-yet-evading-review class of cases constitutes an exception to moot- ness and noting that such exceptions do not extend to the standing inquiry). The Barton couple's claim is plainly not moot, as they continue to desire recogni- tion for their marriage and continue to be denied such recognition. See United States v. Alaska, 503 U.S. 569, 575 n. 4, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992) (We agree that the controversy is not moot, since it involves a continuing con- troversy....). At any rate, to the extent the capable- of-repetition-yet-evading-review test does go to redressability, the com- plained-of conduct, i.e., the denial of marriage recognition, does not evade re- view. Rather, as discussed above, a non- recognition couple could easily seek re- cognition from the State in some fash- ion, such as by filing a joint tax return, and when recognition was denied, the couple could then sue the official re- sponsible for that non-recognition de- cision. FN14. In the plaintiffs' eyes, standing on non-recognition can be found by virtue of the fact that Smith, and the court system that employs her, would not refuse to hon- or a court order enjoining enforcement of Part B. It is of no moment that Smith would presumably obey a judicial invalida- tion of Part B if she were directed to en- force the provision. The problem is there is no reason to believe that she enforces the provision at all, and thus no conceivable injunction for her to obey. FN15. In their response to Smith's motion for summary judgment, the plaintiffs did submit in passing that Smith's affidavit might create an injury in its own right, Page 49 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (69 of 518) namely, the erection of a barrier making it more difficult for members of a group to obtain a benefit. However, the plaintiffs did not frame this argument in terms of ac- cess to the state court system, and it is more naturally read as a point about access to the federal court system. After all, a finding of no standing on the basis of Smith's affidavit removes the Barton couple from federal court, not from state court. FN16. The parties in Kitchen did not ad- dress severability in their appellate brief- ing, thereby rendering the issue waived in that case through briefing omission and re- lieving this court of any responsibility to discuss the matter in its opinion. See United States v. Bader, 678 F.3d 858, 894 (10th Cir.2012) (observing that a litigant's briefing omissions prompt the conclusion that he or she has waived [the] argu- ment). FN17. A litigant may obtain relief under the plain-error doctrine upon a showing of (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If [she] satis- fies these criteria, this Court may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007) (quotation omitted). FN18. The plaintiffs use Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985), and Panhandle Eastern Pipeline Co. v. State of Oklahoma ex rel. Commissioners of Land Office, 83 F.3d 1219 (10th Cir.1996), to bolster their view that a court has an oblig- ation to consider severability even in the face of forfeiture. Cf. Acosta v. City of Costa Mesa, 694 F.3d 960, 974 n. 7 (9th Cir.2012) (relying upon Brockett, inter alia, to support the proposition that severability is an inherent part of the pro- cess of constitutional adjudication that is not subject to waiver by omission from ap- pellate briefs), withdrawn, 708 F.3d 1122 (9th Cir.2013). Neither Brockett nor Pan- handle nor any of the other Supreme Court cases cited by Acosta say anything about forfeiture or waiver, or anything about whether severability had been raised or ar- gued to the trial or appellate courts. Given this silence, the explicit invocation of waiver by Awad in a comparable case is controlling here on the question of whether severability must be considered sua sponte. FN19. Because the plaintiffs' severability theory is forfeited, there is no need to con- sider Smith's argument that a severability analysis regarding Part B is foreclosed by the plaintiffs' lack of standing to challenge that provision. See Sinochem Int'l Co., 549 U.S. at 431 (authorizing federal courts to choose at their discretion among alternat- ive threshold grounds for disposing of a claim without reaching its merits); accord Niemi, 728 F.3d at 1260. FN1. Following the majority opinion, I will refer to Oklahoma's same-sex mar- riage provision embodied in its constitu- tion, Okla. Const. art. II, 35, as SQ 711. Also in keeping with the majority opinion, I will refer to SQ 711's ban on same-sex marriage as Part A and will refer to SQ 711's non-recognition clause as Part B. FN2. I also fully embrace the remainder of the majority's opinion (both its outcome and reasoning) regarding the non- recognition claim: that is, that the Barton couple lacked standing to pursue that claim and that Part B cannot be invalidated pur- Page 50 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (70 of 518) suant to severability law because the plaintiffs forfeited their severability argu- ment. FN3. See Kitchen v. Herbert, F.3d , 2014 WL 2868044, at *32 (10th Cir.2014); Love v. Beshear, F.Supp.2d , 2014 WL 2957671, at *7 n. 14 (W.D.Ky.2014); Wolf v. Walker, 986 F.Supp.2d 982, 2014 WL 2558444, at *33 (W.D.Wis.2014); Whitewood v. Wolf, F.Supp.2d , 2014 WL 2058105, at *15 (M.D.Pa.2014); Geiger v. Kitzhaber, F.Supp.2d , 2014 WL 2054264, at *14 (D.Or.2014); Latta v. Otter, F.Supp.2d , 2014 WL 1909999, at *28 (D.Idaho 2014); Baskin v. Bogan, F.Supp.2d , 2014 WL 1568884, at *3 (S.D.Ind.2014); DeBoer v. Snyder, 973 F.Supp.2d 757, 775 (E.D.Mich.2014); Tanco v. Haslam, F.Supp.2d , 2014 WL 997525, at *6 (M.D.Tenn.2014); Bostic v. Rainey, 970 F.Supp.2d 456, 482 (E.D.Va.2014); Bourke v. Beshear, F.Supp.2d , 2014 WL 556729, at *67 (W.D.Ky.2014); Kitchen v. Herbert, 961 F.Supp.2d 1181, 120910 (D.Utah 2013), aff'd, 2014 WL 2868044; Griego v. Oliver, 316 P.3d 865, 888 (N.M.2013). FN4. A pair of Supreme Court cases handed down a day apart in 1982 are occa- sionally also included in lists of the Court's animus decisions: Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), and Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982). See, e.g., Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.1998) (including Plyler and Zobel in a list of the Court's animus cases); Susannah W. Pollvogt, Unconstitutional Animus, 81 Fordham L.Rev. 887, 899900 (2012) (same). A careful reading of these two decisions, however, causes me to dis- agree with this inclusion. See Plyler, 457 U.S. at 22730; Zobel, 457 U.S. at 6064. Although Plyler and Zobel arguably under- take a slightly more penetrating analysis, rooted in the States' arguments, than com- monly found in rational-basis cases, the Court's gaze in the two cases still extends no further than the colorable state in- terests that might support the challenged classification. Plyler, 457 U.S. at 227 (emphases added); see Zobel, 457 U.S. at 61 & 61 n. 7 (noting the State's proffered three purposes justifying the distinctions made by the challenged classification and noting that the Court need not speculate as to the objectives of the legislature be- cause they were codified in the legislation at issue). As such, Plyler and Zobel are, at the very least, more akin to the mine-run rational-basis cases than they are to the an- imus cases, which (as noted infra) have as their hallmark looking beyond colorable interests promoted by the challenged law into the actual motivation behind the gov- ernmental action at issue. This sui generis form of equal-protection review is absent in Plyler and Zobel; accordingly, I will not rely upon those cases in my discussion of the animus doctrine. See Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 10 (1st Cir.2012) (limiting the list of the Supreme Court's animus cases to Romer, Cleburne, and Moreno); Tiffany C. Graham, Rethinking Section Five: Defer- ence, Direct Regulation, and Restoring Congressional Authority to Enforce the Fourteenth Amendment, 65 Rutgers L.Rev. 667, 716 (2013) (same). FN5. Some of the plaintiffs' amici interpret the animus cases quite broadly, to the ex- tent that they understand them for all in- tents and purposes not to involve hostility at all. See, e.g., Equality Utah Found. & Utah Pride Ctr. Br. at 10 (While the Su- preme Court has sometimes suggested that Page 51 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (71 of 518) laws drawn for the purpose of disad- vantaging a group are based on animus, that term simply denotes the absence of an independent and legitimate purpose for the law, not a subjective disdain for or dis- like of a particular class. (quoting Romer, 517 U.S. at 63233)); Joan Heifetz Hollinger et al. Br. at 4 n.8 ( Animus' as used in Romer is a term of art and does not mean subjective dislike or hostility, but simply the absence of any rational reason for excluding a particular group from pro- tections.). That is, in my view, simply not a plausible reading of the animus cases, which have targeted laws born of animos- ity toward the class of persons affected, Romer, 517 U.S. at 634 (emphasis added), and laws motivated by a bare congres- sional desire to harm a politically unpopu- lar group, Moreno, 413 U.S. at 534 (emphasis added). See Pollvogt, supra, at 888 (In short, animus, including hostility toward a particular social group, is never a valid basis for legislation or other state ac- tion. (emphasis added)). FN6. It bears mention that the Supreme Court has periodically consulted legislative history materials in its search for unconsti- tutional animus. See United States v. Wind- sor, U.S. , 133 S.Ct. 2675, 2693, 186 L.Ed.2d 808 (2013) (considering a House Report in concluding that the essence of the Defense of Marriage Act (DOMA) was interference with the equal dignity of same-sex marriages); Moreno, 413 U.S. at 534 (detailing legis- lative history to demonstrate that the chal- lenged enactment was intended to prevent socalled hippies' and hippie communes' from participating in the food stamp pro- gram). Notably, though, the Supreme Court has never taken into account such materials when weighing the constitution- ality of a popularly-enacted lawone based upon votes directly cast by cit- izenslike the one before us. And it has had the opportunity to do so. Romer in- volved a state constitutional amendment that was passed by referendum, just as our case does. 517 U.S. at 623. Yet the Court did not rely on campaign literature in strik- ing down the measure, training its gaze in- stead on the structural attributes of the amendment that were suggestive of anim- us, such as its breadth and the novelty of its effects on the injured class. See id. at 62635. That is not surprising. The scope of a popular poll makes it difficult, if not impossible, for a court to apprehend the intent of individual voters from record evidence and, therefore, makes it im- provident to ascribe hostility to that intent and to nullify the will of the citizenry on that basis. See Latta, 2014 WL 1909999, at *21 (Because over 280,000 Idahoans voted for Amendment 2, it is not feasible for the Court to infer a particular purpose or intent for the provision.); Fred O. Smith, Jr., Due Process, Republicanism, and Direct Democracy, 89 N.Y.U. L.Rev. 582, 610 (2014) (There is a resounding absence of [a meaningful legislative] re- cord when voters directly enact meas- ures.). FN7. Notably, the Supreme Court in Wind- sor did not expressly identify the tier of scrutiny that it applied in reviewing the challenged federal legislation. The extent to which Windsor is an animus caseas opposed to, most saliently here, a funda- mental-rights caseis not pelluc id. Com- pare Windsor, 133 S.Ct. at 2692 (Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form but one element in a personal bond that is more enduring. By its recognition of the validity of same-sex marriages performed Page 52 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (72 of 518) in other jurisdictions and then by authoriz- ing same-sex unions and same-sex mar- riages, New York sought to give further protection and dignity to that bond. (citation omitted) (quoting Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003))), and id. at 2694 (The differentiation demeans the couple, whose moral and sexual choices the Con- stitution protects, and whose relationship the State has sought to dignify. (citation omitted)), with id. at 2693 (DOMA seeks to injure the very class New York seeks to protect.), and id. at 2695 ([T]he principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.). No mat- ter how one describes the measure of an- imus doctrine at work in Windsor, it cannot be seriously contended that Windsor is en- tirely lacking in it. In addition to the quotes recited above, Windsor spoke in manifestly animus-inflected terms when it reaffirmed that [t]he Constitution's guar- antee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group, id. at 2693 (quoting Moreno, 413 U.S. at 53435), and when the Court reiterated, even more tellingly, that [i]n determining whether a law is motivated by an improper animus or purpose, [d]iscriminations of an unusual character especially require care- ful consideration, id. (second alteration in original) (quoting Romer, 517 U.S. at 633) (internal quotation marks omitted). See also William D. Araiza, After the Tiers: Windsor, Congressional Power to Enforce Equal Protection, and the Challenge of Pointillist Constitutionalism, 94 B.U. L.Rev. 367, 368 (2014) (characterizing Windsor as an animus case); Daniel O. Conkle, Evolving Values, Animus, and SameSex Marriage, 89 Ind. L.J. 27, 39 (2014) (The [Windsor] Court's primary argument ... was that Congress had acted with illicit animus, thus violating equal protection.); Darren Lenard Hutchinson, Not Without Political Power: Gays and Lesbians, Equal Protection and the Sus- pect Class Doctrine, 65 Ala. L.Rev. 975, 977 (2014) ( [I]n Windsor, rather than considering whether gays and lesbians constitute a suspect class, the Court held simply that DOMA violates the Equal Pro- tection Clause because it is a product of animus directed towards same-sex couples.); cf. SmithKline Beecham Corp. v. Abbott Labs., F.3d , 2014 WL 2862588, at *4 (9th Cir.2014) (O'Scannlain, J., dissenting from denial of rehearing en banc) (In declaring [DOMA 3] to be motivated by no legitimate purpose, Windsor only applies rational basis review in the same way that Romer reviewed Colorado's Amendment 2 for ra- tional basis.). In the discussion that fol- lows, I use Windsor exclusively with refer- ence to the animus aspect of its reasoning. FN8. The district court found, as a matter of law, that moral disapproval of same- sex marriage existed in the public domain as at least one justification for voting in fa- vor of SQ 711. Bishop, 962 F.Supp.2d at 1289. In support of that finding, the district court cited statements made by several state legislators and by other supporters of the measure. Id. at 128889. The district court's analysis in this regard is most nat- urally read as relating to its conventional rational-basis reviewwherein it con- sidered moral disapproval as one conceiv- able basis for the lawnot as germane to a finding of animus. See id. at 1285 n. 32 (Because Windsor involved an unusual federal intrusion into state domestic law (not at issue here) and Romer involved an unusual, total removal of any equal protec- Page 53 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (73 of 518) tion of the law (not at issue here), the Court proceeds to conduct a more tradi- tional equal protection analysis by determ- ining the proper level of scrutiny and then considering all conceivable justifications for Part A.); id . at 1288 (The Court turns now to the conceivable justifications for Part A's preclusion of same-sex couples from receiving an Oklahoma marriage li- cense[, including moral disapproval].). As noted supra, the Supreme Court has under- standably (indeed, wisely) never taken into account even more formal expressions of legislative will (i.e., recorded legislative history) when weighing the constitutional- ity of a popularly-enacted law, like the one before us, despite having had the opportun- ity to do so. It seems questionable, there- fore, whether it would be appropriate for a court undertaking animus review in the context of such a law to ever consider the kind of materials cited by the district court here. At any rate, even assuming that such materials are cognizable in a case like this, the few and scattered quotes referenced by the district court, as well as by the plaintiffs and some of their amici, offer far too tenuous a basis to impugn the goodwill of the roughly one million Oklahomans who voted for SQ 711. See id. at 1259 n. 1 (finding that SQ 711 was approved by a vote of 1,075,216 to 347,303). FN9. In an otherwise incisive opinion, the United States District Court for the West- ern District of Wisconsin recently analo- gized a same-sex marriage ban to the felled laws in Windsor and Romer, reasoning that the ban was likewise unusual in that it represented a rare, if not unprecedented, act of using the [state] [c]onstitution to re- strict constitutional rights rather than ex- pand them. Walker, 2014 WL 2558444, at *33 (internal quotation marks omitted). There are two problems with this argu- ment. First, it is misleading to suggest that a ban restricts a substantive constitution- al right that had not been recognized be- forehand. Constitutional or otherwise, the plaintiffs' rights with respect to mar- riageor lack thereofwere the same be- fore the ban as after. Second, even if it were correct to characterize the challenged laws as restrictions, they would not be re- strictions of such a type as to qualify as unusual under Windsor and Romer. DOMA was unusual because it represented an incursion by the federal government in- to a province historically dominated by the States. See Windsor, 133 S.Ct. at 2691 (describing family law as an area that has long been regarded as a virtually exclusive province of the States (internal quotation marks omitted)); id. (The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations ....); id. ([T]he states, at the time of the adoption of the Constitu- tion, possessed full power over the subject of marriage and divorce .... (alteration in original) (internal quotation marks omit- ted)). Colorado's Amendment 2, at issue in Romer, was unusual because it cut off ho- mosexuals' rights in an indiscriminate fash- ion across numerous legal fronts. See 517 U.S. at 627 (Sweeping and comprehens- ive is the change in legal status effected by this law.); id. at 632 (noting that Amend- ment 2 had the peculiar property of im- posing a broad and undifferentiated disab- ility on a single named group, an excep- tional and ... invalid form of legislation); id. at 633 (Amendment 2 ... identifies per- sons by a single trait and then denies them protection across the board.). SQ 711 is unusual in neither of these ways. It is but one piece of Oklahoma's marriage regime, a regime our federalist system entrusts the States with maintaining, and it simply con- stitutionalizes a definition that Oklahoma Page 54 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (74 of 518) has, since its creation, abided by. FN1. See, e.g., Wolf v. Walker, No. 14cv64, 2014 WL 2558444, at *1, *43 (W.D.Wis. June 6, 2014) (challenging mar- riage amendment and statutes; injunction prohibits enforcement of both); Latta v. Otter, No. 1:13cv00482, 2014 WL 1909999, at *3, *29 (D.Idaho May 13, 2014) (same). FN2. Though this court disclaims an opin- ion, Judge Holmes' concurrence strongly suggests that the amendment would sur- vive rational basis review. According to the concurrence, Oklahoma's amendment (1) is limited to a single institution: mar- riage, (2) is supported by history, legal precedent, and statutory enactments dating back to 1973, (3) does not divest anyone of a pre-existing right, (4) should be viewed as the product of the goodwill of one mil- lion Oklahomans, and (5) is consistent with the State's police power, unlike the federal intrusion into marriage at issue in United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). C.A.10 (Okla.),2014. Bishop v. Smith --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) END OF DOCUMENT Page 55 --- F.3d ----, 2014 WL 3537847 (C.A.10 (Okla.)) (Cite as: 2014 WL 3537847 (C.A.10 (Okla.))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (75 of 518) PUBLISHED
UNI TED STATES COURT OF APPEALS FOR THE FOURTH CI RCUI T
No. 14-1167
TI MOTHY B. BOSTI C; TONY C. LONDON; CAROL SCHALL; MARY TOWNLEY,
Plaintiffs Appellees,
J OANNE HARRI S; J ESSI CA DUFF; CHRI STY BERGHOFF; VI CTORI A KI DD, on behal f of t hemsel ves and al l ot her s si mi l ar l y si t uat ed,
I nt er venor s,
v.
GEORGE E. SCHAEFER, I I I , i n hi s of f i ci al capaci t y as t he Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ,
Def endant Appel l ant ,
and
J ANET M. RAI NEY, i n her of f i ci al capaci t y as St at e Regi st r ar of Vi t al Recor ds; ROBERT F. MCDONNELL, i n hi s of f i ci al capaci t y as Gover nor of Vi r gi ni a; KENNETH T. CUCCI NELLI , I I , i n hi s of f i ci al capaci t y as At t or ney Gener al of Vi r gi ni a,
DAVI D A. ROBI NSON; ALAN J . HAWKI NS; J ASON S. CARROLL; NORTH CAROLI NA VALUES COALI TI ON; LI BERTY, LI FE, AND LAW FOUNDATI ON; SOCI AL SCI ENCE PROFESSORS; FAMI LY RESEARCH COUNCI L; VI RGI NI A CATHOLI C CONFERENCE, LLC; CENTER FOR CONSTI TUTI ONAL J URI SPRUDENCE; STATE OF WEST VI RGI NI A; Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 1 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (76 of 518) 2
I NSTI TUTE FOR MARRI AGE AND PUBLI C POLI CY; HELEN M. ALVARE; STATE OF I NDI ANA; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARI ZONA; STATE OF COLORADO; STATE OF I DAHO; STATE OF LOUI SI ANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLI NA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WYOMI NG; WALLBUI LDERS, LLC; LI BERTY COUNSEL; AMERI CAN COLLEGE OF PEDI ATRI CI ANS; SCHOLARS OF HI STORY AND RELATED DI SCI PLI NES; AMERI CAN LEADERSHI P FUND; ROBERT P. GEORGE; SHERI F GI RGI S; RYAN T. ANDERSON; PAUL MCHUGH; UNI TED STATES CONFERENCE OF CATHOLI C BI SHOPS; NATI ONAL ASSOCI ATI ON OF EVANGELI CALS; CHURCH OF J ESUS CHRI ST OF LATTERDAY SAINTS; THE ETHI CS & RELI GI OUS LI BERTY COMMI SSI ON OF THE SOUTHERN BAPTI ST CONVENTI ON; LUTHERAN CHURCHMISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS LI BERTY; EAGLE FORUM EDUCATI ON AND LEGAL DEFENSE FUND; DAVI D BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERI CA; THE FAMI LY FOUNDATI ON OF VI RGI NI A,
Ami ci Suppor t i ng Appel l ant ,
CONSTI TUTI ONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE BOLLI NGER; ERWI N CHEMERI NSKY; WALTER DELLI NGER; MI CHAEL C. DORF; LEE EPSTEI N; DANI EL FARBER; BARRY FRI EDMAN; MI CHAEL J AY GERHARDT, Pr of essor ; DEBORAH HELLMAN; J OHN CALVI N J EFFRI ES, J R. ; LAWRENCE LESSI G; WI LLI AM MARSHALL; FRANK MI CHELMAN; J ANE S. SCHACTER; CHRI STOPHER H. SCHROEDER; SUZANNA SHERRY; GEOFFREY R. STONE; DAVI D STRAUSS; LAURENCE H. TRI BE, Pr of essor ; WI LLI AM VAN ALSTYNE; OUTSERVESLDN; THE AMERI CAN MI LI TARY PARTNER ASSOCI ATI ON; THE AMERI CAN SOCI OLOGI CAL ASSOCI ATI ON; VI RGI NI A CONSTI TUTI ONAL LAW PROFESSORS; AMERI CAN PSYCHOLOGI CAL ASSOCI ATI ON; THE AMERI CAN ACADEMY OF PEDI ATRI CS; AMERI CAN PSYCHI ATRI C ASSOCI ATI ON; NATI ONAL ASSOCI ATI ON OF SOCI AL WORKERS; VI RGI NI A PSYCHOLOGI CAL ASSOCI ATI ON; EQUALI TY NC; SOUTH CAROLI NA QUALITY COALITION; CHANTELLE FISHERBORNE; MARCI E FISHERBORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARI GNAN; MEGAN PARKER; TERRI BECK; LESLI E ZANAGLI O; LEE KNI GHT CAFFERY; DANA DRAA; SHAWN LONG; CRAI G J OHNSON; ESMERALDA MEJIA; CHRISTINA GINTERMEJIA; CATO INSTITUTE; CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER; HI STORI ANS OF MARRI AGE; PETER W. BARDAGLI O; NORMA BASCH; STEPHANI E COONTZ; NANCY F. COTT; TOBY L. DI TZ; ARI ELA R. DUBLER; LAURA F. EDWARDS; SARAH BARRI NGER GORDON; MI CHAEL GROSSBERG; HENDRI K HARTOG; ELLEN HERMAN; MARTHA HODES; LI NDA K. KERBER; ALI CE KESSLERHARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN MI NTZ; ELI ZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY DRU STANLEY; BARBARA WELKE; PARENTS, FAMI LI ES AND FRI ENDS OF Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 2 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (77 of 518) 3
LESBI ANS AND GAYS, I NC. ; KERRY ABRAMS, Al ber t Cl ar k Tat e, J r . Pr of essor of Law, Uni ver si t y of Vi r gi ni a School of Law; VI VI AN HAMI LTON, Pr of essor of Law, Wi l l i am and Mar y; MEREDI TH HARBACH, Pr of essor of Law, Uni ver si t y of Ri chmond; J OAN HEI FETZ HOLLI NGER, J ohn and El i zabet h Boal t Lect ur er i n Resi dence, Uni ver si t y of Cal i f or ni a, Ber kel ey School of Law; COURTNEY G. J OSLI N, Pr of essor of Law, Uni ver si t y of Cal i f or ni a, Davi s School of Law; NAACP LEGAL DEFENSE AND EDUCATI ON FUND, I NC. ; NATI ONAL ASSOCI ATI ON FOR THE ADVANCEMENT OF COLORED PEOPLE; HOWARD UNI VERSI TY SCHOOL OF LAW CI VI L RI GHTS CLI NI C; FAMI LY EQUALI TY COUNCI L; COLAGE; GLMA: HEALTH PROFESSI ONALS ADVANCI NG LGBT EQUALI TY; WI LLI AM N. ESKRI DGE, J R. ; REBECCA L. BROWN; DANI EL A. FARBER; MI CHAEL GERHARDT; J ACK KNI GHT; ANDREW KOPPELMAN; MELI SSA LAMB SAUNDERS; NEI L S. SI EGEL; J ANA B. SI NGER; HI STORI ANS OF ANTIGAY DISCRIMINATION; ANTIDEFAMATION LEAGUE; AMERICANS UNI TED FOR SEPARATI ON OF CHURCH AND STATE; BEND THE ARC: A J EWI SH PARTNERSHI P FOR J USTI CE; HADASSAH, THE WOMEN' S ZI ONI ST ORGANI ZATI ON OF AMERI CA; HI NDU AMERI CAN FOUNDATI ON; THE I NTERFAI TH ALLI ANCE FOUNDATI ON; J APANESE AMERI CAN CI TI ZENS LEAGUE; J EWI SH SOCI AL POLI CY ACTI ON NETWORK; KESHET; METROPOLI TAN COMMUNI TY CHURCHES; MORE LI GHT PRESBYTERI ANS; THE NATI ONAL COUNCI L OF J EWI SH WOMEN; NEHI RI M; PEOPLE FOR THE AMERI CAN WAY FOUNDATI ON; PRESBYTERI AN WELCOME; RECONCI LI NGWORKS: LUTHERANS FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; SI KH AMERI CAN LEGAL DEFENSE AND EDUCATI ON FUND; SOCI ETY FOR HUMANI STI C J UDAI SM; T' RUAH: THE RABBI NI C CALL FOR HUMAN RI GHTS; WOMEN' S LEAGUE FOR CONSERVATI VE J UDAI SM; COLUMBI A LAW SCHOOL SEXUALI TY AND GENDER LAW CLI NI C; BI SHOPS OF THE EPI SCOPAL CHURCH I N VI RGI NI A; CENTRAL ATLANTI C CONFERENCE OF THE UNI TED CHURCH OF CHRI ST; CENTRAL CONFERENCE OF AMERI CAN RABBI S; MORMONS FOR EQUALI TY; RECONSTRUCTI ONI ST RABBI NI CAL ASSOCI ATI ON; RECONSTRUCTI ONI ST RABBI NI CAL COLLEGE AND J EWI SH RECONSTRUCTI ONI ST COMMUNI TI ES; UNI ON FOR REFORM J UDAI SM; THE UNI TARI AN UNI VERSALI ST ASSOCI ATI ON; AFFI RMATI ON; COVENANT NETWORK OF PRESBYTERI ANS; METHODI ST FEDERATI ON FOR SOCI AL ACTI ON; MORE LI GHT PRESBYTERI ANS; PRESBYTERI AN WELCOME; RECONCI LI NG MI NI STRI ES NETWORK; RECONCI LI NGWORKS: LUTHERANS FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; WOMEN OF REFORM J UDAI SM; 28 EMPLOYERS AND ORGANI ZATI ONS REPRESENTI NG EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF CALI FORNI A; STATE OF CONNECTI CUT; DI STRI CT OF COLUMBI A; STATE OF I LLI NOI S; STATE OF I OWA; STATE OF MAI NE; STATE OF MARYLAND; STATE OF NEWHAMPSHI RE; STATE OF NEWMEXI CO; STATE OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF WASHI NGTON; GARY J . GATES; NATI ONAL AND WESTERN STATES Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 3 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (78 of 518) 4
WOMEN' S RI GHTS ORGANI ZATI ONS; VI RGI NI A CHAPTER OF THE AMERI CAN ACADEMY OF MATRI MONI AL LAWYERS; THE NATI ONAL WOMEN' S LAW CENTER; EQUAL RI GHTS ADVOCATES; LEGAL MOMENTUM; NATI ONAL ASSOCI ATI ON OF WOMEN LAWYERS; NATI ONAL PARTNERSHI P FOR WOMEN & FAMI LI ES; SOUTHWEST WOMEN' S LAW CENTER; WOMEN' S LAW PROJ ECT; PROFESSORS OF LAW ASSOCI ATED WI TH THE WI LLI AMS I NSTI TUTE; BAY AREA LAWYERS FOR I NDI VI DUAL FREEDOM; LEADERSHI P CONFERENCE ON CI VI L AND HUMAN RI GHTS; PUBLI C I NTEREST ORGANI ZATI ONS; BAR ASSOCI ATI ONS; FAMI LY LAW AND CONFLI CT OF LAWS PROFESSORS; GAY AND LESBI AN ADVOCATES AND DEFENDERS; PEOPLE OF FAI TH FOR EQUALI TY I N VI RGI NI A; CELEBRATI ON CENTER FOR SPI RI TUAL LI VI NG; CLARENDON PRESBYTERI AN CHURCH; COMMONWEALTH BAPTI ST CHURCH; CONGREGATI ON OR AMI ; HOPE UNI TED CHURCH OF CHRI ST; LI TTLE RI VER UCC; METROPOLI TAN COMMUNI TY CHURCH OF NORTHERN VI RGI NI A; MT. VERNON UNI TARI AN CHURCH; ST. J AMES UCC, ; ST. J OHN' S UCC; NEW LI FE METROPOLI TAN COMMUNI TY CHURCH; UNI TARI AN UNI VERSALI ST FELLOWSHI P OF THE PENI NSULA; UNI TARI AN UNI VERSALI ST CONGREGATI ON OF STERLI NG; UNI TED CHURCH OF CHRI ST OF FREDERI CKSBURG; UNI TARI AN UNI VERSALI ST CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARI E HULM ADAM; REV. MARTY ANDERSON; REV ROBI N ANDERSON; REV. VERNE ARENS; RABBI LI A BASS; REV. J OSEPH G. BEATTI E; REV. SUE BROWNI NG; REV. J I M BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR. J OHN COPERHAVER; RABBI GARY CREDI TOR; REV. DAVI D ENSI GN; REV. HENRY FAI RMAN; RABBI J ESSE GALLOP; REV. TOM GERSTENLAUER; REV. ROBI N H. GORSLI NE; REV. TRI SH HALL; REV. WARREN HAMMONDS; REV. J ON HEASLET; REV. DOUGLAS HODGES; REV. PHYLLI S HUBBELL; REV. STEPHEN G. HYDE; REV. J ANET J AMES; REV. J OHN MANWELL; REV. J AMES W. MCNEAL; REV. MARC BOSWELL; REV. ANDREW CLI VE MI LLARD; REV. DR. MELANI E MI LLER; REV. AMBER NEUROTH; REV. J AMES PAPI LE; REV. LI NDA OLSON PEEBLES; REV. DON PRANGE; RABBI MI CHAEL RAGOZI N; RABBI BEN ROMER; REV. JENNIFER RYU; REV. ANYA SAMMLERMICHAEL; REV. AMY SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURI ANO; REV. ROB VAUGHN; REV. DANI EL VELEZRIVERA; REV. KATE R. WALKER; REV. TERRYE WILLIAMS; REV. DR. KARENMARIE YUST,
TI MOTHY B. BOSTI C; TONY C. LONDON; CAROL SCHALL; MARY TOWNLEY,
Plaintiffs Appellees,
J OANNE HARRI S; J ESSI CA DUFF; CHRI STY BERGHOFF; VI CTORI A KI DD, on behal f of t hemsel ves and al l ot her s si mi l ar l y si t uat ed,
I nt er venor s,
v.
J ANET M. RAI NEY, i n her of f i ci al capaci t y as St at e Regi st r ar of Vi t al Recor ds,
Def endant Appel l ant ,
and
GEORGE E. SCHAEFER, I I I , i n hi s of f i ci al capaci t y as t he Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ; ROBERT F. MCDONNELL, i n hi s of f i ci al capaci t y as Gover nor of Vi r gi ni a; KENNETH T. CUCCI NELLI , I I , i n hi s of f i ci al capaci t y as At t or ney Gener al of Vi r gi ni a,
DAVI D A. ROBI NSON; ALAN J . HAWKI NS; J ASON S. CARROLL; NORTH CAROLI NA VALUES COALI TI ON; LI BERTY, LI FE, AND LAW FOUNDATI ON; SOCI AL SCI ENCE PROFESSORS; FAMI LY RESEARCH COUNCI L; VI RGI NI A CATHOLI C CONFERENCE, LLC; CENTER FOR CONSTI TUTI ONAL J URI SPRUDENCE; STATE OF WEST VI RGI NI A; I NSTI TUTE FOR MARRI AGE AND PUBLI C POLI CY; HELEN M. ALVARE; STATE OF I NDI ANA; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARI ZONA; STATE OF COLORADO; STATE OF I DAHO; STATE OF Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 5 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (80 of 518) 6
LOUI SI ANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLI NA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WYOMI NG; WALLBUI LDERS, LLC; LI BERTY COUNSEL; AMERI CAN COLLEGE OF PEDI ATRI CI ANS; SCHOLARS OF HI STORY AND RELATED DI SCI PLI NES; AMERI CAN LEADERSHI P FUND; ROBERT P. GEORGE; SHERI F GI RGI S; RYAN T. ANDERSON; PAUL MCHUGH; UNI TED STATES CONFERENCE OF CATHOLI C BI SHOPS; NATI ONAL ASSOCI ATI ON OF EVANGELI CALS; CHURCH OF J ESUS CHRI ST OF LATTERDAY SAINTS; THE ETHI CS & RELI GI OUS LI BERTY COMMI SSI ON OF THE SOUTHERN BAPTI ST CONVENTI ON; LUTHERAN CHURCHMISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS LI BERTY; EAGLE FORUM EDUCATI ON AND LEGAL DEFENSE FUND; DAVI D BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERI CA; THE FAMI LY FOUNDATI ON OF VI RGI NI A,
Ami ci Suppor t i ng Appel l ant ,
CONSTI TUTI ONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE BOLLI NGER; ERWI N CHEMERI NSKY; WALTER DELLI NGER; MI CHAEL C. DORF; LEE EPSTEI N; DANI EL FARBER; BARRY FRI EDMAN; MI CHAEL J AY GERHARDT, Pr of essor ; DEBORAH HELLMAN; J OHN CALVI N J EFFRI ES, J R. ; LAWRENCE LESSI G; WI LLI AM MARSHALL; FRANK MI CHELMAN; J ANE S. SCHACTER; CHRI STOPHER H. SCHROEDER; SUZANNA SHERRY; GEOFFREY R. STONE; DAVI D STRAUSS; LAURENCE H. TRI BE, Pr of essor ; WI LLI AM VAN ALSTYNE; OUTSERVESLDN; THE AMERI CAN MI LI TARY PARTNER ASSOCI ATI ON; THE AMERI CAN SOCI OLOGI CAL ASSOCI ATI ON; VI RGI NI A CONSTI TUTI ONAL LAW PROFESSORS; AMERI CAN PSYCHOLOGI CAL ASSOCI ATI ON; THE AMERI CAN ACADEMY OF PEDI ATRI CS; AMERI CAN PSYCHI ATRI C ASSOCI ATI ON; NATI ONAL ASSOCI ATI ON OF SOCI AL WORKERS; VI RGI NI A PSYCHOLOGI CAL ASSOCI ATI ON; EQUALI TY NC; SOUTH CAROLI NA QUALITY COALITION; CHANTELLE FISHERBORNE; MARCI E FISHERBORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN; MEGAN PARKER; TERRI BECK; LESLI E ZANAGLI O; LEE KNI GHT CAFFERY; DANA DRAA; SHAWN LONG; CRAI G J OHNSON; ESMERALDA MEJIA; CHRISTINA GINTERMEJIA; CATO INSTITUTE; CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER; HI STORI ANS OF MARRI AGE; PETER W. BARDAGLI O; NORMA BASCH; STEPHANI E COONTZ; NANCY F. COTT; TOBY L. DI TZ; ARI ELA R. DUBLER; LAURA F. EDWARDS; SARAH BARRI NGER GORDON; MI CHAEL GROSSBERG; HENDRI K HARTOG; ELLEN HERMAN; MARTHA HODES; LI NDA K. KERBER; ALI CE KESSLERHARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN MI NTZ; ELI ZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY DRU STANLEY; BARBARA WELKE; PARENTS, FAMI LI ES AND FRI ENDS OF LESBI ANS AND GAYS, I NC. ; KERRY ABRAMS, Al ber t Cl ar k Tat e, J r . Pr of essor of Law, Uni ver si t y of Vi r gi ni a School of Law; VI VI AN HAMI LTON, Pr of essor of Law, Wi l l i am and Mar y; Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 6 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (81 of 518) 7
MEREDI TH HARBACH, Pr of essor of Law, Uni ver si t y of Ri chmond; J OAN HEI FETZ HOLLI NGER, J ohn and El i zabet h Boal t Lect ur er i n Resi dence, Uni ver si t y of Cal i f or ni a, Ber kel ey School of Law; COURTNEY G. J OSLI N, Pr of essor of Law, Uni ver si t y of Cal i f or ni a, Davi s School of Law; NAACP LEGAL DEFENSE AND EDUCATI ON FUND, I NC. ; NATI ONAL ASSOCI ATI ON FOR THE ADVANCEMENT OF COLORED PEOPLE; HOWARD UNI VERSI TY SCHOOL OF LAW CI VI L RI GHTS CLI NI C; FAMI LY EQUALI TY COUNCI L; COLAGE; GLMA: HEALTH PROFESSI ONALS ADVANCI NG LGBT EQUALI TY; WI LLI AM N. ESKRI DGE, J R. ; REBECCA L. BROWN; DANI EL A. FARBER; MI CHAEL GERHARDT; J ACK KNI GHT; ANDREW KOPPELMAN; MELI SSA LAMB SAUNDERS; NEI L S. SI EGEL; J ANA B. SI NGER; HI STORI ANS OF ANTIGAY DISCRIMINATION; ANTIDEFAMATION LEAGUE; AMERICANS UNI TED FOR SEPARATI ON OF CHURCH AND STATE; BEND THE ARC: A J EWI SH PARTNERSHI P FOR J USTI CE; HADASSAH, THE WOMEN' S ZI ONI ST ORGANI ZATI ON OF AMERI CA; HI NDU AMERI CAN FOUNDATI ON; THE I NTERFAI TH ALLI ANCE FOUNDATI ON; J APANESE AMERI CAN CI TI ZENS LEAGUE; J EWI SH SOCI AL POLI CY ACTI ON NETWORK; KESHET; METROPOLI TAN COMMUNI TY CHURCHES; MORE LI GHT PRESBYTERI ANS; THE NATI ONAL COUNCI L OF J EWI SH WOMEN; NEHI RI M; PEOPLE FOR THE AMERI CAN WAY FOUNDATI ON; PRESBYTERI AN WELCOME; RECONCI LI NGWORKS: LUTHERANS FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; SI KH AMERI CAN LEGAL DEFENSE AND EDUCATI ON FUND; SOCI ETY FOR HUMANI STI C J UDAI SM; T' RUAH: THE RABBI NI C CALL FOR HUMAN RI GHTS; WOMEN' S LEAGUE FOR CONSERVATI VE J UDAI SM; COLUMBI A LAW SCHOOL SEXUALI TY AND GENDER LAW CLI NI C; BI SHOPS OF THE EPI SCOPAL CHURCH I N VI RGI NI A; CENTRAL ATLANTI C CONFERENCE OF THE UNI TED CHURCH OF CHRI ST; CENTRAL CONFERENCE OF AMERI CAN RABBI S; MORMONS FOR EQUALI TY; RECONSTRUCTI ONI ST RABBI NI CAL ASSOCI ATI ON; RECONSTRUCTI ONI ST RABBI NI CAL COLLEGE AND J EWI SH RECONSTRUCTI ONI ST COMMUNI TI ES; UNI ON FOR REFORM J UDAI SM; THE UNI TARI AN UNI VERSALI ST ASSOCI ATI ON; AFFI RMATI ON; COVENANT NETWORK OF PRESBYTERI ANS; METHODI ST FEDERATI ON FOR SOCI AL ACTI ON; MORE LI GHT PRESBYTERI ANS; PRESBYTERI AN WELCOME; RECONCI LI NG MI NI STRI ES NETWORK; RECONCI LI NGWORKS: LUTHERANS FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; WOMEN OF REFORM J UDAI SM; 28 EMPLOYERS AND ORGANI ZATI ONS REPRESENTI NG EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF CALI FORNI A; STATE OF CONNECTI CUT; DI STRI CT OF COLUMBI A; STATE OF I LLI NOI S; STATE OF I OWA; STATE OF MAI NE; STATE OF MARYLAND; STATE OF NEWHAMPSHI RE; STATE OF NEWMEXI CO; STATE OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF WASHI NGTON; GARY J . GATES; NATI ONAL AND WESTERN STATES WOMEN' S RI GHTS ORGANI ZATI ONS; VI RGI NI A CHAPTER OF THE AMERI CAN ACADEMY OF MATRI MONI AL LAWYERS; THE NATI ONAL WOMEN' S LAW CENTER; EQUAL RI GHTS ADVOCATES; LEGAL MOMENTUM; Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 7 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (82 of 518) 8
NATI ONAL ASSOCI ATI ON OF WOMEN LAWYERS; NATI ONAL PARTNERSHI P FOR WOMEN & FAMI LI ES; SOUTHWEST WOMEN' S LAW CENTER; WOMEN' S LAW PROJ ECT; PROFESSORS OF LAW ASSOCI ATED WI TH THE WI LLI AMS I NSTI TUTE; BAY AREA LAWYERS FOR I NDI VI DUAL FREEDOM; LEADERSHI P CONFERENCE ON CI VI L AND HUMAN RI GHTS; PUBLI C I NTEREST ORGANI ZATI ONS; BAR ASSOCI ATI ONS; FAMI LY LAW AND CONFLI CT OF LAWS PROFESSORS; GAY AND LESBI AN ADVOCATES AND DEFENDERS; PEOPLE OF FAI TH FOR EQUALI TY I N VI RGI NI A; CELEBRATI ON CENTER FOR SPI RI TUAL LI VI NG; CLARENDON PRESBYTERI AN CHURCH; COMMONWEALTH BAPTI ST CHURCH; CONGREGATI ON OR AMI ; HOPE UNI TED CHURCH OF CHRI ST; LI TTLE RI VER UCC; METROPOLI TAN COMMUNI TY CHURCH OF NORTHERN VI RGI NI A; MT. VERNON UNI TARI AN CHURCH; ST. J AMES UCC, ; ST. J OHN' S UCC; NEW LI FE METROPOLI TAN COMMUNI TY CHURCH; UNI TARI AN UNI VERSALI ST FELLOWSHI P OF THE PENI NSULA; UNI TARI AN UNI VERSALI ST CONGREGATI ON OF STERLI NG; UNI TED CHURCH OF CHRI ST OF FREDERI CKSBURG; UNI TARI AN UNI VERSALI ST CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARI E HULM ADAM; REV. MARTY ANDERSON; REV ROBI N ANDERSON; REV. VERNE ARENS; RABBI LI A BASS; REV. J OSEPH G. BEATTI E; REV. SUE BROWNI NG; REV. J I M BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR. J OHN COPERHAVER; RABBI GARY CREDI TOR; REV. DAVI D ENSI GN; REV. HENRY FAI RMAN; RABBI J ESSE GALLOP; REV. TOM GERSTENLAUER; REV. ROBI N H. GORSLI NE; REV. TRI SH HALL; REV. WARREN HAMMONDS; REV. J ON HEASLET; REV. DOUGLAS HODGES; REV. PHYLLI S HUBBELL; REV. STEPHEN G. HYDE; REV. J ANET J AMES; REV. J OHN MANWELL; REV. J AMES W. MCNEAL; REV. MARC BOSWELL; REV. ANDREW CLI VE MI LLARD; REV. DR. MELANI E MI LLER; REV. AMBER NEUROTH; REV. J AMES PAPI LE; REV. LI NDA OLSON PEEBLES; REV. DON PRANGE; RABBI MI CHAEL RAGOZI N; RABBI BEN ROMER; REV. JENNIFER RYU; REV. ANYA SAMMLERMICHAEL; REV. AMY SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURI ANO; REV. ROB VAUGHN; REV. DANI EL VELEZRIVERA; REV. KATE R. WALKER; REV. TERRYE WILLIAMS; REV. DR. KARENMARIE YUST,
TI MOTHY B. BOSTI C; TONY C. LONDON; CAROL SCHALL; MARY TOWNLEY,
Plaintiffs Appellees,
J OANNE HARRI S; J ESSI CA DUFF; CHRI STY BERGHOFF; VI CTORI A KI DD, on behal f of t hemsel ves and al l ot her s si mi l ar l y si t uat ed,
I nt er venor s,
v.
MI CHLE MCQUI GG,
I nt er venor / Def endant Appel l ant ,
and
GEORGE E. SCHAEFER, I I I , i n hi s of f i ci al capaci t y as t he Cl er k of Cour t f or Nor f ol k Ci r cui t Cour t ; J ANET M. RAI NEY, i n her of f i ci al capaci t y as St at e Regi st r ar of Vi t al Recor ds; ROBERT F. MCDONNELL, i n hi s of f i ci al capaci t y as Gover nor of Vi r gi ni a; KENNETH T. CUCCI NELLI , I I , i n hi s of f i ci al capaci t y as At t or ney Gener al of Vi r gi ni a,
DAVI D A. ROBI NSON; ALAN J . HAWKI NS; J ASON S. CARROLL; NORTH CAROLI NA VALUES COALI TI ON; LI BERTY, LI FE, AND LAW FOUNDATI ON; SOCI AL SCI ENCE PROFESSORS; FAMI LY RESEARCH COUNCI L; VI RGI NI A CATHOLI C CONFERENCE, LLC; CENTER FOR CONSTI TUTI ONAL J URI SPRUDENCE; STATE OF WEST VI RGI NI A; I NSTI TUTE FOR MARRI AGE AND PUBLI C POLI CY; HELEN M. ALVARE; STATE OF I NDI ANA; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARI ZONA; STATE OF COLORADO; STATE OF I DAHO; STATE OF LOUI SI ANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLI NA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WYOMI NG; WALLBUI LDERS, LLC; LI BERTY COUNSEL; AMERI CAN COLLEGE OF PEDI ATRI CI ANS; SCHOLARS OF Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 9 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (84 of 518) 10
HI STORY AND RELATED DI SCI PLI NES; AMERI CAN LEADERSHI P FUND; ROBERT P. GEORGE; SHERI F GI RGI S; RYAN T. ANDERSON; PAUL MCHUGH; UNI TED STATES CONFERENCE OF CATHOLI C BI SHOPS; NATI ONAL ASSOCI ATI ON OF EVANGELI CALS; CHURCH OF J ESUS CHRI ST OF LATTERDAY SAINTS; THE ETHI CS & RELI GI OUS LI BERTY COMMI SSI ON OF THE SOUTHERN BAPTI ST CONVENTI ON; LUTHERAN CHURCHMISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS LI BERTY; EAGLE FORUM EDUCATI ON AND LEGAL DEFENSE FUND; DAVI D BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERI CA; THE FAMI LY FOUNDATI ON OF VI RGI NI A,
Ami ci Suppor t i ng Appel l ant ,
CONSTI TUTI ONAL LAW SCHOLARS; ASHUTOSH BHAGWAT; LEE BOLLI NGER; ERWI N CHEMERI NSKY; WALTER DELLI NGER; MI CHAEL C. DORF; LEE EPSTEI N; DANI EL FARBER; BARRY FRI EDMAN; MI CHAEL J AY GERHARDT, Pr of essor ; DEBORAH HELLMAN; J OHN CALVI N J EFFRI ES, J R. ; LAWRENCE LESSI G; WI LLI AM MARSHALL; FRANK MI CHELMAN; J ANE S. SCHACTER; CHRI STOPHER H. SCHROEDER; SUZANNA SHERRY; GEOFFREY R. STONE; DAVI D STRAUSS; LAURENCE H. TRI BE, Pr of essor ; WI LLI AM VAN ALSTYNE; OUTSERVESLDN; THE AMERI CAN MI LI TARY PARTNER ASSOCI ATI ON; THE AMERI CAN SOCI OLOGI CAL ASSOCI ATI ON; VI RGI NI A CONSTI TUTI ONAL LAW PROFESSORS; AMERI CAN PSYCHOLOGI CAL ASSOCI ATI ON; THE AMERI CAN ACADEMY OF PEDI ATRI CS; AMERI CAN PSYCHI ATRI C ASSOCI ATI ON; NATI ONAL ASSOCI ATI ON OF SOCI AL WORKERS; VI RGI NI A PSYCHOLOGI CAL ASSOCI ATI ON; EQUALI TY NC; SOUTH CAROLI NA QUALITY COALITION; CHANTELLE FISHERBORNE; MARCI E FISHERBORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN; MEGAN PARKER; TERRI BECK; LESLI E ZANAGLI O; LEE KNI GHT CAFFERY; DANA DRAA; SHAWN LONG; CRAI G J OHNSON; ESMERALDA MEJIA; CHRISTINA GINTERMEJIA; CATO INSTITUTE; CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER; HI STORI ANS OF MARRI AGE; PETER W. BARDAGLI O; NORMA BASCH; STEPHANI E COONTZ; NANCY F. COTT; TOBY L. DI TZ; ARI ELA R. DUBLER; LAURA F. EDWARDS; SARAH BARRI NGER GORDON; MI CHAEL GROSSBERG; HENDRI K HARTOG; ELLEN HERMAN; MARTHA HODES; LI NDA K. KERBER; ALI CE KESSLERHARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN MI NTZ; ELI ZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY DRU STANLEY; BARBARA WELKE; PARENTS, FAMI LI ES AND FRI ENDS OF LESBI ANS AND GAYS, I NC. ; KERRY ABRAMS, Al ber t Cl ar k Tat e, J r . Pr of essor of Law, Uni ver si t y of Vi r gi ni a School of Law; VI VI AN HAMI LTON, Pr of essor of Law, Wi l l i am and Mar y; MEREDI TH HARBACH, Pr of essor of Law, Uni ver si t y of Ri chmond; J OAN HEI FETZ HOLLI NGER, J ohn and El i zabet h Boal t Lect ur er i n Resi dence, Uni ver si t y of Cal i f or ni a, Ber kel ey School of Law; COURTNEY G. J OSLI N, Pr of essor of Law, Uni ver si t y of Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 10 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (85 of 518) 11
Cal i f or ni a, Davi s School of Law; NAACP LEGAL DEFENSE AND EDUCATI ON FUND, I NC. ; NATI ONAL ASSOCI ATI ON FOR THE ADVANCEMENT OF COLORED PEOPLE; HOWARD UNI VERSI TY SCHOOL OF LAW CI VI L RI GHTS CLI NI C; FAMI LY EQUALI TY COUNCI L; COLAGE; GLMA: HEALTH PROFESSI ONALS ADVANCI NG LGBT EQUALI TY; WI LLI AM N. ESKRI DGE, J R. ; REBECCA L. BROWN; DANI EL A. FARBER; MI CHAEL GERHARDT; J ACK KNI GHT; ANDREW KOPPELMAN; MELI SSA LAMB SAUNDERS; NEI L S. SI EGEL; J ANA B. SI NGER; HI STORI ANS OF ANTIGAY DISCRIMINATION; ANTIDEFAMATION LEAGUE; AMERICANS UNI TED FOR SEPARATI ON OF CHURCH AND STATE; BEND THE ARC: A J EWI SH PARTNERSHI P FOR J USTI CE; HADASSAH, THE WOMEN' S ZI ONI ST ORGANI ZATI ON OF AMERI CA; HI NDU AMERI CAN FOUNDATI ON; THE I NTERFAI TH ALLI ANCE FOUNDATI ON; J APANESE AMERI CAN CI TI ZENS LEAGUE; J EWI SH SOCI AL POLI CY ACTI ON NETWORK; KESHET; METROPOLI TAN COMMUNI TY CHURCHES; MORE LI GHT PRESBYTERI ANS; THE NATI ONAL COUNCI L OF J EWI SH WOMEN; NEHI RI M; PEOPLE FOR THE AMERI CAN WAY FOUNDATI ON; PRESBYTERI AN WELCOME; RECONCI LI NGWORKS: LUTHERANS FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; SI KH AMERI CAN LEGAL DEFENSE AND EDUCATI ON FUND; SOCI ETY FOR HUMANI STI C J UDAI SM; T' RUAH: THE RABBI NI C CALL FOR HUMAN RI GHTS; WOMEN' S LEAGUE FOR CONSERVATI VE J UDAI SM; COLUMBI A LAW SCHOOL SEXUALI TY AND GENDER LAW CLI NI C; BI SHOPS OF THE EPI SCOPAL CHURCH I N VI RGI NI A; CENTRAL ATLANTI C CONFERENCE OF THE UNI TED CHURCH OF CHRI ST; CENTRAL CONFERENCE OF AMERI CAN RABBI S; MORMONS FOR EQUALI TY; RECONSTRUCTI ONI ST RABBI NI CAL ASSOCI ATI ON; RECONSTRUCTI ONI ST RABBI NI CAL COLLEGE AND J EWI SH RECONSTRUCTI ONI ST COMMUNI TI ES; UNI ON FOR REFORM J UDAI SM; THE UNI TARI AN UNI VERSALI ST ASSOCI ATI ON; AFFI RMATI ON; COVENANT NETWORK OF PRESBYTERI ANS; METHODI ST FEDERATI ON FOR SOCI AL ACTI ON; MORE LI GHT PRESBYTERI ANS; PRESBYTERI AN WELCOME; RECONCI LI NG MI NI STRI ES NETWORK; RECONCI LI NGWORKS: LUTHERANS FOR FULL PARTI CI PATI ON; RELI GI OUS I NSTI TUTE, I NC. ; WOMEN OF REFORM J UDAI SM; 28 EMPLOYERS AND ORGANI ZATI ONS REPRESENTI NG EMPLOYERS; COMMONWEALTH OF MASSACHUSETTS; STATE OF CALI FORNI A; STATE OF CONNECTI CUT; DI STRI CT OF COLUMBI A; STATE OF I LLI NOI S; STATE OF I OWA; STATE OF MAI NE; STATE OF MARYLAND; STATE OF NEWHAMPSHI RE; STATE OF NEWMEXI CO; STATE OF NEW YORK; STATE OF OREGON; STATE OF VERMONT; STATE OF WASHI NGTON; GARY J . GATES; NATI ONAL AND WESTERN STATES WOMEN' S RI GHTS ORGANI ZATI ONS; VI RGI NI A CHAPTER OF THE AMERI CAN ACADEMY OF MATRI MONI AL LAWYERS; THE NATI ONAL WOMEN' S LAW CENTER; EQUAL RI GHTS ADVOCATES; LEGAL MOMENTUM; NATI ONAL ASSOCI ATI ON OF WOMEN LAWYERS; NATI ONAL PARTNERSHI P FOR WOMEN & FAMI LI ES; SOUTHWEST WOMEN' S LAW CENTER; WOMEN' S LAW PROJ ECT; PROFESSORS OF LAW ASSOCI ATED WI TH THE WI LLI AMS I NSTI TUTE; BAY AREA LAWYERS FOR I NDI VI DUAL FREEDOM; Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 11 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (86 of 518) 12
LEADERSHI P CONFERENCE ON CI VI L AND HUMAN RI GHTS; PUBLI C I NTEREST ORGANI ZATI ONS; BAR ASSOCI ATI ONS; FAMI LY LAW AND CONFLI CT OF LAWS PROFESSORS; GAY AND LESBI AN ADVOCATES AND DEFENDERS; PEOPLE OF FAI TH FOR EQUALI TY I N VI RGI NI A; CELEBRATI ON CENTER FOR SPI RI TUAL LI VI NG; CLARENDON PRESBYTERI AN CHURCH; COMMONWEALTH BAPTI ST CHURCH; CONGREGATI ON OR AMI ; HOPE UNI TED CHURCH OF CHRI ST; LI TTLE RI VER UCC; METROPOLI TAN COMMUNI TY CHURCH OF NORTHERN VI RGI NI A; MT. VERNON UNI TARI AN CHURCH; ST. J AMES UCC, ; ST. J OHN' S UCC; NEW LI FE METROPOLI TAN COMMUNI TY CHURCH; UNI TARI AN UNI VERSALI ST FELLOWSHI P OF THE PENI NSULA; UNI TARI AN UNI VERSALI ST CONGREGATI ON OF STERLI NG; UNI TED CHURCH OF CHRI ST OF FREDERI CKSBURG; UNI TARI AN UNI VERSALI ST CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARI E HULM ADAM; REV. MARTY ANDERSON; REV ROBI N ANDERSON; REV. VERNE ARENS; RABBI LI A BASS; REV. J OSEPH G. BEATTI E; REV. SUE BROWNI NG; REV. J I M BUNDY; REV. MARK BYRD; REV. STEVEN C. CLUNN; REV. DR. J OHN COPERHAVER; RABBI GARY CREDI TOR; REV. DAVI D ENSI GN; REV. HENRY FAI RMAN; RABBI J ESSE GALLOP; REV. TOM GERSTENLAUER; REV. ROBI N H. GORSLI NE; REV. TRI SH HALL; REV. WARREN HAMMONDS; REV. J ON HEASLET; REV. DOUGLAS HODGES; REV. PHYLLI S HUBBELL; REV. STEPHEN G. HYDE; REV. J ANET J AMES; REV. J OHN MANWELL; REV. J AMES W. MCNEAL; REV. MARC BOSWELL; REV. ANDREW CLI VE MI LLARD; REV. DR. MELANI E MI LLER; REV. AMBER NEUROTH; REV. J AMES PAPI LE; REV. LI NDA OLSON PEEBLES; REV. DON PRANGE; RABBI MI CHAEL RAGOZI N; RABBI BEN ROMER; REV. JENNIFER RYU; REV. ANYA SAMMLERMICHAEL; REV. AMY SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURI ANO; REV. ROB VAUGHN; REV. DANI EL VELEZRIVERA; REV. KATE R. WALKER; REV. TERRYE WILLIAMS; REV. DR. KARENMARIE YUST,
Ami ci Suppor t i ng Appel l ees.
Appeal s f r om t he Uni t ed St at es Di st r i ct Cour t f or t he East er n Di st r i ct of Vi r gi ni a, at Nor f ol k. Ar enda L. Wr i ght Al l en, Di st r i ct J udge. ( 2: 13- cv- 00395- AWA- LRL)
Ar gued: May 13, 2014 Deci ded: J ul y 28, 2014
Bef or e NI EMEYER, GREGORY, and FLOYD, Ci r cui t J udges.
Af f i r med by publ i shed opi ni on. J udge Fl oyd wr ot e t he maj or i t y opi ni on, i n whi ch J udge Gr egor y j oi ned. J udge Ni emeyer wr ot e a separ at e di ssent i ng opi ni on.
ARGUED: Davi d Br andt Oakl ey, POOLE MAHONEY PC, Chesapeake, Vi r gi ni a; Davi d Aust i n Rober t Ni mocks, ALLI ANCE DEFENDI NG FREEDOM, Washi ngt on, D. C. , f or Appel l ant s Geor ge E. Schaef er , I I I and Mi chl e McQui gg. St uar t Al an Raphael , OFFI CE OF THE ATTORNEY GENERAL OF VI RGI NI A, Ri chmond, Vi r gi ni a, f or Appel l ant J anet M. Rai ney. Theodor e B. Ol son, GI BSON, DUNN & CRUTCHER, LLP, Washi ngt on, D. C. , f or Appel l ees. J ames D. Esseks, AMERI CAN CI VI L LI BERTI ES UNI ON, New Yor k, New Yor k, f or I nt er venor s. ON BRIEF: J ef f r ey F. Br ooke, POOLE MAHONEY PC, Chesapeake, Vi r gi ni a, f or Appel l ant Geor ge E. Schaef er , I I I . Byr on J . Babi one, Kennet h J . Connel l y, J . Cal eb Dal t on, ALLI ANCE DEFENDI NG FREEDOM, Scot t sdal e, Ar i zona, f or Appel l ant Mi chl e B. McQui gg. Mar k R. Her r i ng, At t or ney Gener al , Cynt hi a E. Hudson, Chi ef Deput y At t or ney Gener al , Rhodes B. Ri t enour , Deput y At t or ney Gener al , Al l yson K. Tysi nger , Seni or Assi st ant At t or ney Gener al , Cat her i ne Cr ooks Hi l l , Seni or Assi st ant At t or ney Gener al , Tr evor S. Cox, Deput y Sol i ci t or Gener al , OFFI CE OF THE ATTORNEY GENERAL OF VI RGI NI A, Ri chmond, Vi r gi ni a, f or Appel l ant J anet M. Rai ney. Davi d Boi es, Ar monk, New Yor k, Wi l l i am A. I saacson, Washi ngt on, D. C. , J er emy M. Gol dman, Oakl and, Cal i f or ni a, Rober t Si l ver , J oshua I . Schi l l er , BOI ES, SCHI LLER & FLEXNER LLP, New Yor k, New Yor k; Theodor e J . Bout r ous, J r . , J oshua S. Li pshut z, GI BSON, DUNN & CRUTCHER LLP, Los Angel es, Cal i f or ni a; Thomas B. Shut t l ewor t h, Rober t E. Rul of f , Char l es B. Lust i g, Andr ew M. Hendr i ck, Er i k C. Por car o, SHUTTLEWORTH, RULOFF, SWAI N, HADDAD & MORECOCK, P. C. , Vi r gi ni a Beach, Vi r gi ni a, f or Appel l ees. Rebecca K. Gl enber g, AMERI CAN CI VI L LI BERTI ES UNI ON OF VI RGI NI A FOUNDATI ON, I NC. , Ri chmond, Vi r gi ni a; J oshua A. Bl ock, AMERI CAN CI VI L LI BERTI ES UNI ON FOUNDATI ON, New Yor k, New Yor k; Gr egor y R. Nevi ns, Tar a L. Bor el l i , LAMBDA LEGAL DEFENSE AND EDUCATI ON FUND, I NC. , At l ant a, Geor gi a; Paul M. Smi t h, Luke C. Pl at zer , Mar k P. Gaber , J ENNER & BLOCK LLP, Washi ngt on, D. C. , f or I nt er venor s. Davi d A. Robi nson, Nor t h Haven, Connect i cut , as Ami cus. Lynn D. War dl e, BRI GHAM YOUNG UNI VERSI TY LAW SCHOOL, Pr ovo, Ut ah; Wi l l i am C. Duncan, MARRI AGE LAW FOUNDATI ON, Lehi , Ut ah, f or Ami ci Al an J . Hawki ns and J ason S. Car r ol l . Debor ah J . Dewar t , DEBORAH J . DEWART, ATTORNEY AT LAW, Swansbor o, Nor t h Car ol i na, f or Ami ci Nor t h Car ol i na Val ues Coal i t i on and Li ber t y, Li f e, and Law Foundat i on. St eve C. Tayl or , ALLI ANCE LEGAL GROUP, Chesapeake, Vi r gi ni a, f or Ami cus Soci al Sci ence Pr of essor s. Paul Benj ami n Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 13 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (88 of 518) 14
Li nt on, Nor t hbr ook, I l l i noi s, f or Ami cus Fami l y Resear ch Counci l . J ohn C. East man, Ant hony T. Caso, Cent er f or Const i t ut i onal J ur i spr udence, CHAPMAN UNI VERSI TY DALE E. FOWLER SCHOOL OF LAW, Or ange, Cal i f or ni a, f or Ami ci Vi r gi ni a Cat hol i c Conf er ence, LLC and Cent er f or Const i t ut i onal J ur i spr udence. Pat r i ck Mor r i sey, At t or ney Gener al , J ul i e Mar i e Bl ake, Assi st ant At t or ney Gener al , El ber t Li n, Sol i ci t or Gener al , OFFI CE OF THE WEST VI RGI NI A ATTORNEY GENERAL, Char l est on, West Vi r gi ni a, f or Ami cus St at e of West Vi r gi ni a. D. J ohn Sauer , St . Loui s, Mi ssour i , f or Ami cus I nst i t ut e f or Mar r i age and Publ i c Pol i cy. Henr y P. Wal l , Col umbi a, Sout h Car ol i na, f or Ami cus Hel en M. Al var e. Gr egor y F. Zoel l er , At t or ney Gener al , Thomas M. Fi sher , Sol i ci t or Gener al , OFFI CE OF THE ATTORNEY GENERAL, I ndi anapol i s, I ndi ana; Lut her St r ange, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF ALABAMA, Mont gomer y, Al abama; Mi chael C. Ger aght y, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF ALASKA, J uneau, Al aska; Thomas C. Hor ne, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF ARI ZONA, Phoeni x, Ar i zona; J ohn Sut her s, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF COLORADO, Denver , Col or ado; Lawr ence G. Wasden, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF I DAHO, Boi se, I daho; J ames D. " Buddy" Cal dwel l , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF LOUI SI ANA, Bat on Rouge, Loui si ana; Ti mot hy C. Fox, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF MONTANA, Hel ena, Mont ana; J on Br uni ng, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF NEBRASKA, Li ncol n, Nebr aska; E. Scot t Pr ui t t , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF OKLAHOMA, Okl ahoma Ci t y, Okl ahoma; Al an Wi l son, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF SOUTH CAROLI NA, Col umbi a, Sout h Car ol i na; Mar t y J . J ackl ey, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF SOUTH DAKOTA, Pi er r e, Sout h Dakot a; Sean Reyes, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF THE STATE OF UTAH, Sal t Lake Ci t y, Ut ah; Pet er K. Mi chael , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF WYOMI NG, Cheyenne, Wyomi ng, f or Ami ci St at es of I ndi ana, Al abama, Al aska, Ar i zona, Col or ado, I daho, Loui si ana, Mont ana, Nebr aska, Okl ahoma, Sout h Car ol i na, Sout h Dakot a, Ut ah, and Wyomi ng. St ephen M. Cr ampt on, Mar y E. McAl i st er , LI BERTY COUNSEL, Lynchbur g, Vi r gi ni a, f or Ami cus Wal l Bui l der s, LLC. Mat hew D. St aver , Ani t a L. St aver , LI BERTY COUNSEL, Or l ando, Fl or i da, f or Ami ci Li ber t y Counsel and Amer i can Col l ege of Pedi at r i ci ans. Fr ank D. Myl ar , MYLAR LAW, P. C. , Sal t Lake Ci t y, Ut ah, f or Ami ci Schol ar s of Hi st or y and Rel at ed Di sci pl i nes and Amer i can Leader shi p Fund. Mi chael F. Smi t h, THE SMI TH APPELLATE LAW FI RM, Washi ngt on, D. C. , f or Ami ci Rober t P. Geor ge, Sher i f Gi r gi s, and Ryan T. Ander son. Ger ar d V. Br adl ey, NOTRE DAME LAW SCHOOL, Not r e Dame, I ndi ana; Kevi n T. Sni der , PACI FI C J USTI CE Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 14 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (89 of 518) 15
I NSTI TUTE, Oakl and, Cal i f or ni a, f or Ami cus Paul McHugh. Ant hony R. Pi car el l o, J r . , U. S. CONFERENCE OF CATHOLI C BI SHOPS, Washi ngt on, D. C. ; R. Shawn Gunnar son, KI RTON MCCONKI E, Sal t Lake Ci t y, Ut ah, f or Ami ci Uni t ed St at es Conf er ence of Cat hol i c Bi shops, Nat i onal Associ at i on of Evangel i cal s, Chur ch of J esus Chr i st of Lat t er - Day Sai nt s, The Et hi cs & Rel i gi ous Li ber t y Commi ssi on of t he Sout her n Bapt i st Convent i on, and Lut her an Chur ch- Mi ssour i Synod. Er i c Rassbach, Asma Uddi n, THE BECKET FUND FOR RELI GI OUS LI BERTY, Washi ngt on, D. C. , f or Ami cus The Becket Fund f or Rel i gi ous Li ber t y. Lawr ence J . J oseph, Washi ngt on, D. C. f or Ami cus Eagl e For um Educat i on and Legal Def ense Fund. Davi d Boyl e, Long Beach, Cal i f or ni a, as Ami cus. Davi d Boyl e, Long Beach, Cal i f or ni a, f or Ami cus Rober t Oscar Lopez. Abbe Davi d Lowel l , Chr i st opher D. Man, CHADBOURNE & PARKE LLP, Washi ngt on, D. C. , f or Ami ci Out ser ve- SLDN and The Amer i can Mi l i t ar y Par t ner Associ at i on. Geof f r ey R. St one, THE UNI VERSI TY OF CHI CAGO LAWSCHOOL, Chi cago, I l l i noi s; Lor i Al vi no McGi l l , LATHAM & WATKI NS LLP, Washi ngt on, D. C. , f or Ami ci Const i t ut i onal Law Schol ar s Ashut osh Bhagwat , Lee Bol l i nger , Er wi n Chemer i nsky, Wal t er Del l i nger , Mi chael C. Dor f , Lee Epst ei n, Dani el Far ber , Bar r y Fr i edman, Mi chael J . Ger har dt , Debor ah Hel l man, J ohn C. J ef f r i es, J r . , Lawr ence Lessi g, Wi l l i am Mar shal l , Fr ank Mi chel man, J ane S. Schact er , Chr i st opher H. Schr oeder , Suzanna Sher r y, Geof f r ey R. St one, Davi d St r auss, Laur ence H. Tr i be, and Wi l l i amVan Al st yne. St even W. Fi t schen, THE NATI ONAL LEGAL FOUNDATI ON, Vi r gi ni a Beach, Vi r gi ni a; Hol l y L. Car mi chael , San J ose, Cal i f or ni a, f or Ami cus Concer ned Women f or Amer i ca. Car mi ne D. Boccuzzi , J r . , Mar k A. Li ght ner , Andr a Tr oy, Andr ew P. Mei ser , CLEARY GOTTLI EB STEEN & HAMI LTON LLP, New Yor k, New Yor k, f or Ami cus The Amer i can Soci ol ogi cal Associ at i on. L. St even Emmer t , SYKES, BOURDON, AHERN & LEVY, P. C. , Vi r gi ni a Beach, Vi r gi ni a, f or Ami cus Vi r gi ni a Const i t ut i onal Law Pr of essor s. Nat hal i e F. P. Gi l f oyl e, AMERI CAN PSYCHOLOGI CAL ASSOCI ATI ON, Washi ngt on, D. C. ; Br uce V. Spi va, THE SPI VA LAW FI RM PLLC, Washi ngt on, D. C. , f or Ami ci Amer i can Psychol ogi cal Associ at i on, Amer i can Academy of Pedi at r i cs, Amer i can Psychi at r i c Associ at i on, Nat i onal Associ at i on of Soci al Wor ker s, and Vi r gi ni a Psychol ogi cal Associ at i on. Mar k Kl ei nschmi dt , TI N FULTON WALKER & OWEN, Chapel Hi l l , Nor t h Car ol i na; Ryan T. But l er , Gr eensbor o, Nor t h Car ol i na, f or Ami ci Equal i t y NC and Sout h Car ol i na Equal i t y Coal i t i on. Rose A. Saxe, J ames D. Esseks, AMERI CAN CI VI L LI BERTI ES UNI ON FOUNDATI ON, New Yor k, New Yor k; Gar r ar d R. Beeney, Davi d A. Cast l eman, Cat her i ne M. Br adl ey, W. Rudol ph Kl eyst euber , SULLI VAN & CROMWELL LLP, New Yor k, New Yor k, f or Ami ci Mar ci e and Chant el l e Fi sher - Bor ne, Cr yst al Hendr i x and Lei gh Smi t h, Shana Car i gnan and Megan Par ker , Ter r i Beck and Lesl i e Zanagl i o, Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 15 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (90 of 518) 16
Lee Kni ght Caf f er y and Dana Dr aa, Shawn Long and Cr ai g J ohnson, and Esmer al da Mej i a and Chr i st i na Gi nt er - Mej i a. El i zabet h B. Wydr a, Dougl as T. Kendal l , J udi t h E. Schaef f er , Davi d H. Gans, CONSTI TUTI ONAL ACCOUNTABI LI TY CENTER, Washi ngt on, D. C. ; I l ya Shapi r o, CATO I NSTI TUTE, Washi ngt on, D. C. , f or Ami ci Cat o I nst i t ut e and Const i t ut i onal Account abi l i t y Cent er . Dani el McNeel Lane, J r . , Mat t hew E. Peppi ng, San Ant oni o, Texas, J essi ca M. Wei sel , AKI N GUMP STRAUSS HAUER & FELD LLP, Los Angel es, Cal i f or ni a, f or Ami ci Hi st or i ans of Mar r i age Pet er W. Bar dagl i o, Nor ma Basch, St ephani e Coont z, Nancy F. Cot t , Toby L. Di t z, Ar i el a R. Dubl er , Laur a F. Edwar ds, Sar ah Bar r i nger Gor don, Mi chael Gr ossber g, Hendr i k Har t og, El l en Her man, Mar t ha Hodes, Li nda K. Ker ber , Al i ce Kessl er - Har r i s, El ai ne Tyl er May, Ser ena Mayer i , St eve Mi nt z, El i zabet h Pl eck, Car ol e Shammas, Mar y L. Shanl ey, Amy Dr u St anl ey, and Bar bar a Wel ke. J i yun Camer on Lee, Andr ew J . Davi s, FOLGER LEVI N LLP, San Fr anci sco, Cal i f or ni a, f or Ami cus Par ent s, Fami l i es and Fr i ends of Lesbi ans and Gays, I nc. Ri t a F. Li n, Laur a W. Wei ssbei n, Sar a Bar t el , MORRI SON & FOERSTER LLP, San Fr anci sco, Cal i f or ni a, f or Ami ci Ker r y Abr ams, Al ber t Cl ar k Tat e, J r . Pr of essor of Law Uni ver si t y of Vi r gi ni a School of Law, Vi vi an Hami l t on, Pr of essor of Law Wi l l i am and Mar y, Mer edi t h Har bach, Pr of essor of Law Uni ver si t y of Ri chmond, J oan Hei f et z Hol l i nger , J ohn and El i zabet h Boal t Lect ur er i n Resi dence Uni ver si t y of Cal i f or ni a, Ber kel ey School of Law, Cour t ney G. J osl i n, Pr of essor of Law Uni ver si t y of Cal i f or ni a, Davi s School of Law, and For t y- Four Ot her Fami l y Law Pr of essor s. Sher r i l yn I f i l l , Chr i st i na A. Swar ns, Ri a Tabacco Mar , NAACP LEGAL DEFENSE & EDUCATI ONAL FUND, I NC. , New Yor k, New Yor k; Ki m M. Keenan, NAACP, Bal t i mor e, Mar yl and, f or Ami ci NAACP Legal Def ense & Educat i onal Fund, I nc. and Nat i onal Associ at i on f or t he Advancement of Col or ed Peopl e. Ader son Bel l egar de Fr ancoi s, HOWARD UNI VERSI TY SCHOOL OF LAW CI VI L RI GHTS CLI NI C, Washi ngt on, D. C. ; Br ad W. Sei l i ng, Benj ami n G. Shat z, MANATT, PHELPS & PHI LLI PS, LLP, Los Angel es, Cal i f or ni a, f or Ami cus Howar d Uni ver si t y School of Law Ci vi l Ri ght s Cl i ni c. Al ec W. Far r , Washi ngt on, D. C. , Tr acy M. Tal bot , Kat her i ne Keat i ng, BRYAN CAVE LLP, San Fr anci sco, Cal i f or ni a, f or Ami ci Fami l y Equal i t y Counci l and COLAGE. Ni chol as M. O' Donnel l , SULLI VAN & WORCESTER LLP, Bost on, Massachuset t s, f or Ami cus GLMA: Heal t h Pr of essi onal s Advanci ng LGBT Equal i t y. Kat hl een M. O' Sul l i van, Mi ca D. Si mpson, PERKI NS COI E LLP, Seat t l e, Washi ngt on, f or Ami ci Wi l l i am N. Eskr i dge, J r . , Rebecca L. Br own, Dani el A. Far ber , Mi chael Ger har dt , J ack Kni ght , Andr ew Koppel man, Mel i ssa Lamb Saunder s, Nei l S. Si egel , and J ana B. Si nger . Cat her i ne E. St et son, Er i ca Kni evel Songer , Mar y Hel en Wi mber l y, Kat i e D. Fai r chi l d, Madel i ne H. Gi t omer , HOGAN LOVELLS US LLP, Washi ngt on, D. C. , f or Ami cus Hi st or i ans of Ant i gay Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 16 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (91 of 518) 17
Di scr i mi nat i on. Rocky C. Tsai , Samuel P. Bi cket t , Rebecca Har l ow, ROPES & GRAY LLP, San Fr anci sco, Cal i f or ni a; St even M. Fr eeman, Set h M. Mar ni n, Mel i ssa Gar l i ck, ANTI - DEFAMATI ON LEAGUE, New Yor k, New Yor k, f or Ami ci Ant i - Def amat i on League, Amer i cans Uni t ed f or Separ at i on of Chur ch and St at e, Bend t he Ar c: A J ewi sh Par t ner shi p f or J ust i ce, Hadassah, The Women' s Zi oni st Or gani zat i on of Amer i ca, Hi ndu Amer i can Foundat i on, The I nt er f ai t h Al l i ance Foundat i on, J apanese Amer i can Ci t i zens League, J ewi sh Soci al Pol i cy Act i on Net wor k, Keshet , Met r opol i t an Communi t y Chur ches, Mor e Li ght Pr esbyt er i ans, The Nat i onal Counci l of J ewi sh Women, Nehi r i m, Peopl e For t he Amer i can Way Foundat i on, Pr esbyt er i an Wel come, Reconci l i ngwor ks: Lut her ans f or Ful l Par t i ci pat i on, Rel i gi ous I nst i t ut e, I nc. , Si kh Amer i can Legal Def ense and Educat i on Fund, Soci et y f or Humani st i c J udai sm, T' Ruah: The Rabbi ni c Cal l f or Human Ri ght s, and Women' s League For Conser vat i ve J udai sm. Mat t hew P. McGui r e, Bever l ee E. Si l va, Di ane S. Wi zi g, ALSTON & BI RD LLP, Dur ham, Nor t h Car ol i na; Suzanne B. Gol dber g, Sexual i t y and Gender Law Cl i ni c, COLUMBI A LAW SCHOOL, New Yor k, New Yor k, f or Ami cus Col umbi a Law School Sexual i t y and Gender Law Cl i ni c. J ef f r ey S. Tr acht man, Nor man C. Si mon, J ason M. Mof f , Kur t M. Denk, J essi ca N. Wi t t e, KRAMER LEVI N NAFTALI S & FRANKEL LLP, New Yor k, New Yor k, f or Ami ci Bi shops of t he Epi scopal Chur ch i n Vi r gi ni a, The Cent r al At l ant i c Conf er ence of t he Uni t ed Chur ch of Chr i st , Cent r al Conf er ence of Amer i can Rabbi s, Mor mons f or Equal i t y, Reconst r uct i oni st Rabbi ni cal Associ at i on, Reconst r uct i oni st Rabbi ni cal Col l ege and J ewi sh Reconst r uct i oni st Communi t i es, Uni on f or Ref or m J udai sm, The Uni t ar i an Uni ver sal i st Associ at i on, Af f i r mat i on, Covenant Net wor k of Pr esbyt er i ans, Met hodi st Feder at i on f or Soci al Act i on, Mor e Li ght Pr esbyt er i ans, Pr esbyt er i an Wel come, Reconci l i ng Mi ni st r i es Net wor k, Reconsi l i ngwor ks: Lut her ans For Ful l Par t i ci pat i on, Rel i gi ous I nst i t ut e, I nc. , and Women of Ref or m J udai sm. Susan Baker Manni ng, Mi chael L. Whi t l ock, Mar gar et E. Sheer , J ar ed A. Cr af t , Sar a M. Car i an, J essi ca C. Br ooks, Kat her i ne R. Moskop, J ohn A. Pol i t o, St ephani e Schust er , BI NGHAM MCCUTCHEN LLP, Washi ngt on, D. C. , f or Ami cus 28 Empl oyer s and Or gani zat i ons Repr esent i ng Empl oyer s. Mar t ha Coakl ey, At t or ney Gener al , J onat han B. Mi l l er , Assi st ant At t or ney Gener al , Genevi eve C. Nadeau, Assi st ant At t or ney Gener al , Mi chel l e L. Leung, Assi st ant At t or ney Gener al , Fr eder i ck D. Augenst er n, Assi st ant At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Bost on, Massachuset t s; Kamal a D. Har r i s, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF CALI FORNI A, Sacr ament o, Cal i f or ni a; Geor ge J epsen, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF CONNECTI CUT, Har t f or d, Connect i cut ; I r vi n B. Nat han, At t or ney Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 17 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (92 of 518) 18
Gener al , OFFI CE OF THE ATTORNEY GENERAL FOR THE DI STRI CT OF COLUMBI A, Washi ngt on, D. C. ; Li sa Madi gan, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF I LLI NOI S, Chi cago, I l l i noi s; Tom Mi l l er , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF I OWA, Des Moi nes, I owa; J anet T. Mi l l s, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF MAI NE, August a, Mai ne; Dougl as F. Gansl er , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF MARYLAND, Bal t i mor e, Mar yl and; J oseph A. Fost er , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF NEW HAMPSHI RE, Concor d, New Hampshi r e; Gar y K. Ki ng, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF NEW MEXI CO, Sant a Fe, New Mexi co; Er i c T. Schnei der man, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF NEW YORK, New Yor k, New Yor k; El l en F. Rosenbl um, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF OREGON, Sal em, Or egon; Wi l l i am H. Sor r el l , At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF VERMONT, Mont pel i er , Ver mont ; Rober t W. Fer guson, At t or ney Gener al , OFFI CE OF THE ATTORNEY GENERAL OF WASHI NGTON, Ol ympi a, Washi ngt on, f or Ami ci Massachuset t s, Cal i f or ni a, Connect i cut , Di st r i ct of Col umbi a, I l l i noi s, I owa, Mai ne, Mar yl and, New Hampshi r e, New Mexi co, New Yor k, Or egon, Ver mont , and Washi ngt on. Br ad W. Sei l i ng, Benj ami n G. Shat z, MANATT, PHELPS & PHI LLI PS, LLP, Los Angel es, Cal i f or ni a, f or Ami cus Gar y J . Gat es. Br uce A. Wessel , Moez M. Kaba, C. Mi t chel l Hendy, Br i an Eggl est on, I RELL & MANELLA LLP, Los Angel es, Cal i f or ni a, f or Ami cus Nat i onal and West er n St at es Women' s Ri ght s Or gani zat i ons. Donal d K. But l er , BATZLI STI LES BUTLER, P. C. , Ri chmond, Vi r gi ni a; Susan M. But l er , SHOUNBACH, P. C. , Fai r f ax, Vi r gi ni a; Dani el L. Gr ay, St ephani e J . Smi t h, Kr i st en L. Kugel , Anne B. Robi nson, COOPER GI NSBERG GRAY, PLLC, Fai r f ax, Vi r gi ni a, f or Ami cus Vi r gi ni a Chapt er of The Amer i can Academy of Mat r i moni al Lawyer s. Mar ci a D. Gr eenber ger , Emi l y J . Mar t i n, Cor t el you C. Kenney, NATI ONAL WOMEN' S LAW CENTER, Washi ngt on, D. C. , f or Ami ci The Nat i onal Women' s Law Cent er , Equal Ri ght s Advocat es, Legal Moment um, Nat i onal Associ at i on of Women Lawyer s, Nat i onal Par t ner shi p f or Women & Fami l i es, Sout hwest Women' s Law Cent er , Women' s Law Pr oj ect , and Pr of essor s of Law Associ at ed wi t h The Wi l l i ams I nst i t ut e. J er ome C. Rot h, Ni col e S. Phi l l i s, MUNGER, TOLLES & OLSON LLP, San Fr anci sco, Cal i f or ni a, f or Ami cus Bay Ar ea Lawyer s f or I ndi vi dual Fr eedom. Shannon P. Mi nt er , Chr i st opher F. St ol l , J ai me Hul i ng Del aye, NATI ONAL CENTER FOR LESBI AN RI GHTS, Washi ngt on, D. C. , f or Ami ci Leader shi p Conf er ence on Ci vi l and Human Ri ght s, Publ i c I nt er est Or gani zat i ons, and Bar Associ at i ons. J oanna L. Gr ossman, HOFSTRA LAW SCHOOL, Hempst ead, New Yor k; Mar j or y A. Gent r y, ARNOLD & PORTER LLP, San Fr anci sco, Cal i f or ni a, f or Ami cus Fami l y Law and Conf l i ct of Laws Pr of essor s. Mar k C. Fl emi ng, Fel i ci a H. El l swor t h, Bost on, Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 18 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (93 of 518) 19
Massachuset t s, Paul R. Q. Wol f son, Di na B. Mi shr a, Leah M. Li t man, Washi ngt on, D. C. , Al an Schoenf el d, WI LMER CUTLER PI CKERI NG HALE AND DORR LLP, New Yor k, New Yor k, f or Ami cus Gay & Lesbi an Advocat es & Def ender s. J ohn Humphr ey, THE HUMPHREY LAW FI RM, Al exandr i a, Vi r gi ni a, f or Ami ci Peopl e of Fai t h For Equal i t y i n Vi r gi ni a ( POFEV) , Cel ebr at i on Cent er f or Spi r i t ual Li vi ng, Cl ar endon Pr esbyt er i an Chur ch, Commonweal t h Bapt i st Chur ch, Congr egat i on or AMI , Hope Uni t ed Chur ch of Chr i st , Li t t l e Ri ver UCC, Met r opol i t an Communi t y Chur ch of Nor t her n Vi r gi ni a, Mt . Ver non Uni t ar i an Chur ch, St . J ames UCC, St . J ohn' s UCC, New Li f e Met r opol i t an Communi t y Chur ch, Uni t ar i an Uni ver sal i st Fel l owshi p of t he Peni nsul a, Uni t ar i an Uni ver sal i st Congr egat i on of St er l i ng, Uni t ed Chur ch of Chr i st of Fr eder i cksbur g, Uni t ar i an Uni ver sal i st Chur ch of Loudoun, Rev. Mar i e Hul m Adam, Rev. Mar t y Ander son, Rev. Robi n Ander son, Rev. Ver ne Ar ens, Rabbi Li a Bass, Rev. J oseph G. Beat t i e, Rev. Mar c Boswel l , Rev. Sue Br owni ng, Rev. J i mBundy, Rev. Mar k Byr d, Rev. St even C. Cl unn, Rev. Dr . J ohn Coper haver , Rabbi Gar y Cr edi t or , Rev. Davi d Ensi gn, Rev. Henr y Fai r man, Rabbi J esse Gal l op, Rev. Tom Ger st enl auer , Rev. Dr . Robi n H. Gor sl i ne, Rev. Tr i sh Hal l , Rev. War r en Hammonds, Rev. J on Heasl et , Rev. Dougl as Hodges, Rev. Phyl l i s Hubbel l , Rev. St ephen G. Hyde, Rev. J anet J ames, Rev. J ohn Manwel l , Rev. J ames W. McNeal , Andr ew Mer t z, Rev. Andr ew Cl i ve Mi l l ar d, Rev. Dr . Mel ani e Mi l l er , Rev. Amber Neur ot h, Rev. J ames Papi l e, Rev. Li nda Ol son Peebl es, Rev. Don Pr ange, Rabbi Mi chael Ragozi n, Rabbi Ben Romer , Rev. J enni f er Ryu, Rev. Anya Samml er - Mi chael , Rabbi Amy Schwar t zman, Rev. Danny Spear s, Rev. Mar k Sur i ano, Rev. Rob Vaughn, Rev. Dani el Vel ez- Ri ver a, Rev. Kat e R. Wal ker , Rev. Ter r ye Wi l l i ams, and Rev. Dr . Kar en- Mar i e Yust .
FLOYD, Ci r cui t J udge: Vi a var i ous st at e st at ut es and a st at e const i t ut i onal amendment , Vi r gi ni a pr event s same- sex coupl es f r om mar r yi ng and r ef uses t o r ecogni ze same- sex mar r i ages per f or med el sewher e. Two same- sex coupl es f i l ed sui t t o chal l enge t he const i t ut i onal i t y of t hese l aws, al l egi ng t hat t hey vi ol at e t he Due Pr ocess and Equal Pr ot ect i on Cl auses of t he Four t eent h Amendment . The di st r i ct cour t gr ant ed t he coupl es mot i on f or summar y j udgment and enj oi ned Vi r gi ni a f r om enf or ci ng t he l aws. Thi s appeal f ol l owed. Because we concl ude t hat Vi r gi ni a s same- sex mar r i age bans i mper mi ssi bl y i nf r i nge on i t s ci t i zens f undament al r i ght t o mar r y, we af f i r m.
I . A. Thi s case concer ns a ser i es of st at ut or y and const i t ut i onal mechani sms t hat Vi r gi ni a empl oyed t o pr ohi bi t l egal r ecogni t i on f or same- sex r el at i onshi ps i n t hat st at e. 1 Vi r gi ni a enact ed t he
1 Thr ee ot her st at es i n t hi s Ci r cui t have si mi l ar bans: Nor t h Car ol i na, N. C. Const . ar t . XI V, 6; N. C. Gen. St at . 51- 1, 51- 1. 2; Sout h Car ol i na, S. C. Const . ar t . XVI I , 15; S. C. Code Ann. 20- 1- 10, 20- 1- 15; and West Vi r gi ni a, W. Va. Code 48- 2- 603. The Sout her n Di st r i ct of West Vi r gi ni a has st ayed a chal l enge t o West Vi r gi ni a s st at ut e pendi ng our r esol ut i on of t hi s appeal . McGee v. Col e, No. 3: 13- cv- 24068 ( S. D. W. Va. J une 10, 2014) ( or der di r ect i ng st ay) . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 20 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (95 of 518) 21
f i r st of t hese l aws i n 1975: Vi r gi ni a Code sect i on 20- 45. 2, whi ch pr ovi des t hat mar r i age bet ween per sons of t he same sex i s pr ohi bi t ed. Af t er t he Supr eme Cour t of Hawai i t ook st eps t o l egal i ze same- sex mar r i age i n t he mi d- 1990s, Vi r gi ni a amended sect i on 20- 45. 2 t o speci f y t hat [ a] ny mar r i age ent er ed i nt o by per sons of t he same sex i n anot her st at e or j ur i sdi ct i on shal l be voi d i n al l r espect s i n Vi r gi ni a and any cont r act ual r i ght s cr eat ed by such mar r i age shal l be voi d and unenf or ceabl e. I n 2004, Vi r gi ni a added ci vi l uni ons and si mi l ar ar r angement s t o t he l i st of pr ohi bi t ed same- sex r el at i onshi ps vi a t he Af f i r mat i on of Mar r i age Act . See Va. Code Ann. 20- 45. 3. Vi r gi ni a s ef f or t s t o ban same- sex mar r i age and ot her l egal l y r ecogni zed same- sex r el at i onshi ps cul mi nat ed i n t he Mar shal l / Newman Amendment t o t he Vi r gi ni a Const i t ut i on: That onl y a uni on bet ween one man and one woman may be a mar r i age val i d i n or r ecogni zed by t hi s Commonweal t h and i t s pol i t i cal subdi vi si ons.
Thi s Commonweal t h and i t s pol i t i cal subdi vi si ons shal l not cr eat e or r ecogni ze a l egal st at us f or r el at i onshi ps of unmar r i ed i ndi vi dual s t hat i nt ends t o appr oxi mat e t he desi gn, qual i t i es, si gni f i cance, or ef f ect s of mar r i age. Nor shal l t hi s Commonweal t h or i t s pol i t i cal subdi vi si ons cr eat e or r ecogni ze anot her uni on, par t ner shi p, or ot her l egal st at us t o whi ch i s assi gned t he r i ght s, benef i t s, obl i gat i ons, qual i t i es, or ef f ect s of mar r i age.
Va. Const . ar t . I , 15- A. The Vi r gi ni a Const i t ut i on i mposes t wo hur dl es t hat a pot ent i al amendment must j ump bef or e becomi ng l aw: t he Gener al Assembl y must appr ove t he amendment i n t wo Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 21 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (96 of 518) 22
separ at e l egi sl at i ve sessi ons, and t he peopl e must r at i f y i t . Va. Const . ar t . XI I , 1. The Gener al Assembl y appr oved t he Mar shal l / Newman Amendment i n 2005 and 2006. I n November 2006, Vi r gi ni a s vot er s r at i f i ed i t by a vot e of f i f t y- seven per cent t o f or t y- t hr ee per cent . I n t he aggr egat e, Vi r gi ni a Code sect i ons 20- 45. 2 and 20- 45. 3 and t he Mar shal l / Newman Amendment pr ohi bi t same- sex mar r i age, ban ot her l egal l y r ecogni zed same- sex r el at i onshi ps, and r ender same- sex mar r i ages per f or med el sewher e l egal l y meani ngl ess under Vi r gi ni a st at e l aw.
B. Same- sex coupl es Ti mot hy B. Bost i c and Tony C. London and Car ol Schal l and Mar y Townl ey ( col l ect i vel y, t he Pl ai nt i f f s) br ought t hi s l awsui t t o chal l enge t he const i t ut i onal i t y of Vi r gi ni a Code sect i ons 20- 45. 2 and 20- 45. 3, t he Mar shal l / Newman Amendment , and any ot her Vi r gi ni a l aw t hat bar s same- sex mar r i age or pr ohi bi t s t he St at e s r ecogni t i on of ot her wi se- l awf ul same- sex mar r i ages f r om ot her j ur i sdi ct i ons ( col l ect i vel y, t he Vi r gi ni a Mar r i age Laws) . The Pl ai nt i f f s cl ai m t hat t he i nabi l i t y t o mar r y or have t hei r r el at i onshi p r ecogni zed by t he Commonweal t h of Vi r gi ni a wi t h t he di gni t y and r espect accor ded t o mar r i ed opposi t e- sex coupl es has caused t hem si gni f i cant har dshi p . . . and sever e humi l i at i on, emot i onal di st r ess, pai n, suf f er i ng, psychol ogi cal har m, and st i gma. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 22 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (97 of 518) 23
Bost i c and London have been i n a l ong- t er m, commi t t ed r el at i onshi p wi t h each ot her si nce 1989 and have l i ved t oget her f or mor e t han t went y year s. They desi r e t o mar r y each ot her under t he l aws of t he Commonweal t h i n or der t o publ i cl y announce t hei r commi t ment t o one anot her and t o enj oy t he r i ght s, pr i vi l eges, and pr ot ect i ons t hat t he St at e conf er s on mar r i ed coupl es. On J ul y 1, 2013, Bost i c and London appl i ed f or a mar r i age l i cense f r om t he Cl er k f or t he Ci r cui t Cour t f or t he Ci t y of Nor f ol k. The Cl er k deni ed t hei r appl i cat i on because t hey ar e bot h men. Schal l and Townl ey ar e women who have been a coupl e si nce 1985 and have l i ved t oget her as a f ami l y f or near l y t hi r t y year s. They wer e l awf ul l y mar r i ed i n Cal i f or ni a i n 2008. I n 1998, Townl ey gave bi r t h t o t he coupl e s daught er , E. S. - T. Schal l and Townl ey i dent i f y a host of consequences of t hei r i nabi l i t y t o mar r y i n Vi r gi ni a and Vi r gi ni a s r ef usal t o r ecogni ze t hei r Cal i f or ni a mar r i age, i ncl udi ng t he f ol l owi ng: Schal l coul d not vi si t Townl ey i n t he hospi t al f or sever al hour s when Townl ey was admi t t ed due t o pr egnancy- r el at ed compl i cat i ons. Schal l cannot l egal l y adopt E. S. - T. , whi ch f or ced her t o r et ai n an at t or ney t o pet i t i on f or f ul l j oi nt l egal and physi cal cust ody. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 23 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (98 of 518) 24
Vi r gi ni a wi l l not l i st bot h Schal l and Townl ey as E. S. - T. s par ent s on her bi r t h cer t i f i cat e. Unt i l Febr uar y 2013, Schal l and Townl ey coul d not cover one anot her on t hei r empl oyer - pr ovi ded heal t h i nsur ance. Townl ey has been abl e t o cover Schal l on her i nsur ance si nce t hen, but , unl i ke an opposi t e- sex spouse, Schal l must pay st at e i ncome t axes on t he benef i t s she r ecei ves. Schal l and Townl ey must pay st at e t axes on benef i t s pai d pur suant t o empl oyee benef i t s pl ans i n t he event of one of t hei r deat hs. Schal l and Townl ey cannot f i l e j oi nt st at e i ncome t ax r et ur ns, whi ch has cost t hemt housands of dol l ar s. On J ul y 18, 2013, Bost i c and London sued f or mer Gover nor Rober t F. McDonnel l , f or mer At t or ney Gener al Kennet h T. Cucci nel l i , and Geor ge E. Schaef er , I I I , i n hi s of f i ci al capaci t y as t he Cl er k f or t he Ci r cui t Cour t f or t he Ci t y of Nor f ol k. The Pl ai nt i f f s f i l ed t hei r Fi r st Amended Compl ai nt on Sept ember 3, 2013. The Fi r st Amended Compl ai nt added Schal l and Townl ey as pl ai nt i f f s, r emoved McDonnel l and Cucci nel l i as def endant s, and added J anet M. Rai ney as a def endant i n her of f i ci al capaci t y as t he St at e Regi st r ar of Vi t al Recor ds. The Pl ai nt i f f s al l ege t hat t he Vi r gi ni a Mar r i age Laws ar e f aci al l y i nval i d under t he Due Pr ocess and Equal Pr ot ect i on Cl auses of Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 24 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (99 of 518) 25
t he Four t eent h Amendment and t hat Schaef er and Rai ney vi ol at ed 42 U. S. C. 1983 by enf or ci ng t hose l aws. The par t i es f i l ed cr oss- mot i ons f or summar y j udgment . The Pl ai nt i f f s al so r equest ed a per manent i nj unct i on i n connect i on wi t h t hei r mot i on f or summar y j udgment and moved, i n t he al t er nat i ve, f or a pr el i mi nar y i nj unct i on i n t he event t hat t he di st r i ct cour t deni ed t hei r mot i on f or summar y j udgment . The di st r i ct cour t gr ant ed a mot i on by Mi chl e McQui ggt he Pr i nce Wi l l i am Count y Cl er k of Cour t t o i nt er vene as a def endant on J anuar y 21, 2014. Two days l at er , new At t or ney Gener al Mar k Her r i ngas Rai ney s counsel submi t t ed a f or mal change i n posi t i on and r ef used t o def end t he Vi r gi ni a Mar r i age Laws, al t hough Vi r gi ni a cont i nues t o enf or ce t hem. McQui gg adopt ed Rai ney s pr i or mot i on f or summar y j udgment and t he br i ef s i n suppor t of t hat mot i on. The di st r i ct cour t hel d t hat t he Vi r gi ni a Mar r i age Laws wer e unconst i t ut i onal on Febr uar y 14, 2014. Bost i c v. Rai ney, 970 F. Supp. 2d 456, 483 ( E. D. Va. 2014) . I t t her ef or e deni ed Schaef er s and McQui gg s mot i ons f or summar y j udgment and gr ant ed t he Pl ai nt i f f s mot i on. The di st r i ct cour t al so enj oi ned Vi r gi ni a s empl oyeesi ncl udi ng Rai ney and her empl oyeesand Schaef er , McQui gg, and t hei r of f i cer s, agent s, and empl oyees f r om enf or ci ng t he Vi r gi ni a Mar r i age Laws. I d. at Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 25 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (100 of 518) 26
484. The cour t st ayed t he i nj unct i on pendi ng our r esol ut i on of t hi s appeal . I d. Rai ney, Schaef er , and McQui gg t i mel y appeal ed t he di st r i ct cour t s deci si on. We have j ur i sdi ct i on pur suant t o 28 U. S. C. 1291. On Mar ch 10, 2014, we al l owed t he pl ai nt i f f s f r om Har r i s v. Rai neya si mi l ar case pendi ng bef or e J udge Mi chael Ur banski i n t he West er n Di st r i ct of Vi r gi ni at o i nt er vene. J udge Ur banski had pr evi ousl y cer t i f i ed t hat case as a cl ass act i on on behal f of al l same- sex coupl es i n Vi r gi ni a who have not mar r i ed i n anot her j ur i sdi ct i on and al l same- sex coupl es i n Vi r gi ni a who have mar r i ed i n anot her j ur i sdi ct i on, excl udi ng t he Pl ai nt i f f s. Har r i s v. Rai ney, No. 5: 13- cv- 077, 2014 WL 352188, at *1, 12 ( W. D. Va. J an. 31, 2014) . Our anal ysi s pr oceeds i n t hr ee st eps. Fi r st , we consi der whet her t he Pl ai nt i f f s possess st andi ng t o br i ng t hei r cl ai ms. Second, we eval uat e whet her t he Supr eme Cour t s summar y di smi ssal of a si mi l ar l awsui t i n Baker v. Nel son, 409 U. S. 810 ( 1972) ( mem. ) , r emai ns bi ndi ng. Thi r d, we det er mi ne whi ch l evel of const i t ut i onal scr ut i ny appl i es her e and t est t he Vi r gi ni a Mar r i age Laws usi ng t he appr opr i at e st andar d. For pur poses of t hi s opi ni on, we adopt t he t er mi nol ogy t he di st r i ct cour t used t o descr i be t he par t i es i n t hi s case. The Pl ai nt i f f s, Rai ney, and t he Har r i s cl ass ar e t he Opponent s of t he Vi r gi ni a Mar r i age Laws. Schaef er and McQui gg ar e t he Pr oponent s. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 26 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (101 of 518) 27
I I . Bef or e we t ur n t o t he mer i t s of t he par t i es ar gument s i n t hi s case, we consi der Schaef er s cont ent i on t hat [ t ] he t r i al cour t er r ed as a mat t er of l aw when i t f ound al l Pl ai nt i f f s had st andi ng and asser t ed cl ai ms agai nst al l Def endant s. We r evi ew t he di st r i ct cour t s di sposi t i on of cr oss- mot i ons f or summar y j udgment i ncl udi ng i t s det er mi nat i ons r egar di ng st andi ngde novo, vi ewi ng t he f act s i n t he l i ght most f avor abl e t o t he non- movi ng par t y. Li ber t ar i an Par t y of Va. v. J udd, 718 F. 3d 308, 313 ( 4t h Ci r . 2013) ; Covenant Medi a of S. C. , LLC v. Ci t y of N. Char l est on, 493 F. 3d 421, 427- 28 ( 4t h Ci r . 2007) . Summar y j udgment i s appr opr i at e when t her e i s no genui ne di sput e as t o any mat er i al f act and t he movant i s ent i t l ed t o j udgment as a mat t er of l aw. Li ber t ar i an Par t y of Va. , 718 F. 3d at 313- 14 ( quot i ng Fed. R. Ci v. P. 56( a) ) . To est abl i sh st andi ng under Ar t i cl e I I I of t he Const i t ut i on, a pl ai nt i f f must al l ege ( 1) an i nj ur y t hat i s ( 2) f ai r l y t r aceabl e t o t he def endant s al l egedl y unl awf ul conduct and t hat i s ( 3) l i kel y t o be r edr essed by t he r equest ed r el i ef . Luj an v. Def ender s of Wi l dl i f e, 504 U. S. 555, 590 ( 1992) ( quot i ng Al l en v. Wr i ght , 468 U. S. 737, 751 ( 1984) ) ( i nt er nal quot at i on mar ks omi t t ed) . The st andi ng r equi r ement appl i es t o each cl ai m t hat a pl ai nt i f f seeks t o pr ess. Dai ml er Chr ysl er Cor p. v. Cuno, 547 U. S. 332, 352 ( 2006) . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 27 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (102 of 518) 28
Schaef er pr emi ses hi s ar gument t hat t he Pl ai nt i f f s l ack st andi ng t o br i ng t hei r cl ai ms on t he i dea t hat ever y pl ai nt i f f must have st andi ng as t o ever y def endant . However , t he Supr eme Cour t has made i t cl ear t hat t he pr esence of one par t y wi t h st andi ng i s suf f i ci ent t o sat i sf y Ar t i cl e I I I s case- or - cont r over sy r equi r ement . Rumsf el d v. For um f or Academi c & I nst i t ut i onal Ri ght s, I nc. , 547 U. S. 47, 52 n. 2 ( 2006) ; see al so Dep t of Commer ce v. U. S. House of Repr esent at i ves, 525 U. S. 316, 330 ( 1999) ( hol di ng t hat a case i s j ust i ci abl e i f some, but not necessar i l y al l , of t he pl ai nt i f f s have st andi ng as t o a par t i cul ar def endant ) ; Vi l l . of Ar l i ngt on Hei ght s v. Met r o. Housi ng Dev. Cor p. , 429 U. S. 252, 263- 64 ( 1977) ( same) . The Pl ai nt i f f s cl ai ms can t her ef or e sur vi ve Schaef er s st andi ng chal l enge as l ong as one coupl e sat i sf i es t he st andi ng r equi r ement s wi t h r espect t o each def endant . Schaef er ser ves as t he Cl er k f or t he Ci r cui t Cour t f or t he Ci t y of Nor f ol k. I n Vi r gi ni a, ci r cui t cour t cl er ks ar e r esponsi bl e f or i ssui ng mar r i age l i censes and f i l i ng r ecor ds of mar r i age. Va. Code Ann. 20- 14, 32. 1- 267. Al t hough Schal l and Townl ey di d not seek a mar r i age l i cense f r om Schaef er , t he di st r i ct cour t f ound t hat Bost i c and London di d so and t hat Schaef er deni ed t hei r r equest because t hey ar e a same- sex Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 28 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (103 of 518) 29
coupl e. 2 Bost i c, 970 F. Supp. 2d at 462, 467. Thi s l i cense deni al const i t ut es an i nj ur y f or st andi ng pur poses. See S. Bl ast i ng Ser vs. , I nc. v. Wi l kes Cnt y. , 288 F. 3d 584, 595 ( 4t h Ci r . 2002) ( expl ai ni ng t hat t he pl ai nt i f f s had not suf f er ed an i nj ur y because t hey had not appl i ed f or , or been deni ed, t he per mi t i n quest i on) ; Scot t v. Gr eenvi l l e Cnt y. , 716 F. 2d 1409, 1414- 15 & n. 6 ( 4t h Ci r . 1983) ( hol di ng t hat deni al of bui l di ng per mi t const i t ut ed an i nj ur y) . Bost i c and London can t r ace t hi s deni al t o Schaef er s enf or cement of t he al l egedl y unconst i t ut i onal Vi r gi ni a Mar r i age Laws, 3 and decl ar i ng t hose
2 Schaef er cont ends t hat Schal l and Townl ey cannot br i ng a 1983 cl ai magai nst hi mf or t he same r eason: he di d not commi t any act or omi ssi on t hat har med t hem. To br i ng a successf ul 1983 cl ai m, a pl ai nt i f f must show t hat t he al l eged i nf r i ngement of f eder al r i ght s [ i s] f ai r l y at t r i but abl e t o t he st at e[ . ] Rendel l - Baker v. Kohn, 457 U. S. 830, 838 ( 1982) ( quot i ng Lugar v. Edmondson Oi l Co. , 457 U. S. 922, 937 ( 1982) ) . Schaef er s act i on i n denyi ng Bost i c and London s appl i cat i on f or a mar r i age l i cense i s cl ear l y at t r i but abl e t o t he st at e. The di st r i ct cour t coul d t her ef or e ent er t ai n a 1983 cl ai m agai nst Schaef er wi t hout ascer t ai ni ng whet her he commi t t ed any act i on wi t h r espect t o Schal l and Townl ey. 3 For t hi s r eason, and cont r ar y t o Schaef er s asser t i ons, Schaef er i s al so a pr oper def endant under Ex par t e Young, 209 U. S. 123 ( 1908) . Pur suant t o Ex par t e Young, t he El event h Amendment does not bar a ci t i zen f r om sui ng a st at e of f i cer t o enj oi n t he enf or cement of an unconst i t ut i onal l aw when t he of f i cer has some connect i on wi t h t he enf or cement of t he act . Lyt l e v. Gr i f f i t h, 240 F. 3d 404, 412 ( 4t h Ci r . 2001) ( emphasi s omi t t ed) ( quot i ng Ex par t e Young, 209 U. S. at 157) . Schaef er bear s t he r equi si t e connect i on t o t he enf or cement of t he Vi r gi ni a Mar r i age Laws due t o hi s r ol e i n gr ant i ng and denyi ng appl i cat i ons f or mar r i age l i censes. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 29 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (104 of 518) 30
l aws unconst i t ut i onal and enj oi ni ng t hei r enf or cement woul d r edr ess Bost i c and London s i nj ur i es. Bost i c and London t her ef or e possess Ar t i cl e I I I st andi ng wi t h r espect t o Schaef er . We consequent l y need not consi der whet her Schal l and Townl ey have st andi ng t o sue Schaef er . See Hor ne v. Fl or es, 557 U. S. 433, 446- 47 ( 2009) ( decl i ni ng t o anal yze whet her addi t i onal pl ai nt i f f s had st andi ng when one pl ai nt i f f di d) . Rai neyas t he Regi st r ar of Vi t al Recor dsi s t asked wi t h devel opi ng Vi r gi ni a s mar r i age l i cense appl i cat i on f or m and di st r i but i ng i t t o t he ci r cui t cour t cl er ks t hr oughout Vi r gi ni a. Va. Code Ann. 32. 1- 252( A) ( 9) , 32. 1- 267( E) . Nei t her Schaef er s nor Rai ney s r esponse t o t he Fi r st Amended Compl ai nt di sput es i t s descr i pt i on of Rai ney s dut i es: Def endant Rai ney i s r esponsi bl e f or ensur i ng compl i ance wi t h t he Commonweal t h s l aws r el at i ng t o mar r i age i n gener al and, mor e speci f i cal l y, i s r esponsi bl e f or enf or cement of t he speci f i c pr ovi si ons at i ssue i n t hi s Amended Compl ai nt , namel y t hose l aws t hat l i mi t mar r i age t o opposi t e- sex coupl es and t hat r ef use t o honor t he benef i t s of same- sex mar r i ages l awf ul l y ent er ed i nt o i n ot her st at es.
I n addi t i on t o per f or mi ng t hese mar r i age- r el at ed f unct i ons, Rai ney devel ops and di st r i but es bi r t h cer t i f i cat e f or ms, over sees t he r ul es r el at i ng t o bi r t h cer t i f i cat es, and f ur ni shes f or ms r el at i ng t o adopt i on so t hat Vi r gi ni a can col l ect t he i nf or mat i on necessar y t o pr epar e t he adopt ed chi l d s bi r t h Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 30 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (105 of 518) 31
cer t i f i cat e. I d. 32. 1- 252( A) ( 2) - ( 3) , ( 9) , 32. 1- 257, 32. 1- 261( A) ( 1) , 32. 1- 262, 32. 1- 269. Rai ney s pr omul gat i on of a mar r i age l i cense appl i cat i on f or m t hat does not al l ow same- sex coupl es t o obt ai n mar r i age l i censes r esul t ed i n Schaef er s deni al of Bost i c and London s mar r i age l i cense r equest . For t he r easons we descr i be above, t hi s l i cense deni al const i t ut es an i nj ur y. Bost i c and London can t r ace t hi s i nj ur y t o Rai ney due t o her r ol e i n devel opi ng t he mar r i age l i cense appl i cat i on f or m i n compl i ance wi t h t he Vi r gi ni a Mar r i age Laws, and t he r el i ef t hey seek woul d r edr ess t hei r i nj ur i es. Bost i c and London consequent l y have st andi ng t o sue Rai ney. Schal l and Townl ey al so possess st andi ng t o br i ng t hei r cl ai ms agai nst Rai ney. They sat i sf y t he i nj ur y r equi r ement i n t wo ways. Fi r st , i n equal pr ot ect i on casessuch as t hi s case [ w] hen t he gover nment er ect s a bar r i er t hat makes i t mor e di f f i cul t f or member s of one gr oup t o obt ai n a benef i t t han i t i s f or member s of anot her gr oup, . . . . [ t ] he i nj ur y i n f act . . . i s t he deni al of equal t r eat ment r esul t i ng f r om t he i mposi t i on of t he bar r i er [ . ] Ne. Fl a. Chapt er of Associ at ed Gen. Cont r act or s of Am. v. Ci t y of J acksonvi l l e, 508 U. S. 656, 666 ( 1993) . The Vi r gi ni a Mar r i age Laws er ect such a bar r i er , whi ch pr event s same- sex coupl es f r om obt ai ni ng t he emot i onal , soci al , and f i nanci al benef i t s t hat opposi t e- sex coupl es r eal i ze Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 31 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (106 of 518) 32
upon mar r i age. Second, Schal l and Townl ey al l ege t hat t hey have suf f er ed st i gmat i c i nj ur i es due t o t hei r i nabi l i t y t o get mar r i ed i n Vi r gi ni a and Vi r gi ni a s r ef usal t o r ecogni ze t hei r Cal i f or ni a mar r i age. St i gmat i c i nj ur y st emmi ng f r om di scr i mi nat or y t r eat ment i s suf f i ci ent t o sat i sf y st andi ng s i nj ur y r equi r ement i f t he pl ai nt i f f i dent i f i es some concr et e i nt er est wi t h r espect t o whi ch [ he or she] [ i s] per sonal l y subj ect t o di scr i mi nat or y t r eat ment and [ t ] hat i nt er est . . . i ndependent l y sat i sf [ i es] t he causat i on r equi r ement of st andi ng doct r i ne. Al l en, 468 U. S. at 757 n. 22, abr ogat ed on ot her gr ounds by Lexmar k I nt l , I nc. v. St at i c Cont r ol Component s, 134 S. Ct . 1377 ( 2014) . Schal l and Townl ey poi nt t o sever al concr et e ways i n whi ch t he Vi r gi ni a Mar r i age Laws have r esul t ed i n di scr i mi nat or y t r eat ment . For exampl e, t hey al l ege t hat t hei r mar i t al st at us has hi nder ed Schal l f r om vi si t i ng Townl ey i n t he hospi t al , pr event ed Schal l f r om adopt i ng E. S. - T. , 4 and subj ect ed Schal l and Townl ey t o t ax bur dens f r om whi ch mar r i ed opposi t e- sex coupl es ar e exempt . Because Schal l and Townl ey hi ghl i ght speci f i c, concr et e i nst ances of di scr i mi nat i on r at her
4 Vi r gi ni a does not expl i ci t l y pr ohi bi t same- sex coupl es f r om adopt i ng chi l dr en. The Vi r gi ni a Mar r i age Laws i mpose a f unct i onal ban on adopt i on by same- sex coupl es because t he Vi r gi ni a Code al l ows onl y mar r i ed coupl es or unmar r i ed i ndi vi dual s t o adopt chi l dr en. Va. Code Ann. 63. 2- 1232( A) ( 6) . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 32 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (107 of 518) 33
t han maki ng abst r act al l egat i ons, t hei r st i gmat i c i nj ur i es ar e l egal l y cogni zabl e. Schal l and Townl ey s i nj ur i es ar e t r aceabl e t o Rai ney s enf or cement of t he Vi r gi ni a Mar r i age Laws. Because decl ar i ng t he Vi r gi ni a Mar r i age Laws unconst i t ut i onal and enj oi ni ng t hei r enf or cement woul d r edr ess Schal l and Townl ey s i nj ur i es, t hey sat i sf y st andi ng doct r i ne s t hr ee r equi r ement s wi t h r espect t o Rai ney. I n sum, each of t he Pl ai nt i f f s has st andi ng as t o at l east one def endant .
I I I . Havi ng r esol ved t he t hr eshol d i ssue of whet her t he Pl ai nt i f f s have st andi ng t o sue Schaef er and Rai ney, we now t ur n t o t he mer i t s of t he Opponent s Four t eent h Amendment ar gument s. We begi n wi t h t he i ssue of whet her t he Supr eme Cour t s summar y di smi ssal i n Baker v. Nel son set t l es t hi s case. Baker came t o t he Supr eme Cour t as an appeal f r om a Mi nnesot a Supr eme Cour t deci si on, whi ch hel d t hat a st at e st at ut e t hat t he cour t i nt er pr et ed t o bar same- sex mar r i ages di d not vi ol at e t he Four t eent h Amendment s Due Pr ocess or Equal Pr ot ect i on Cl auses. Baker v. Nel son, 191 N. W. 2d 185, 187 ( Mi nn. 1971) . At t he t i me, 28 U. S. C. 1257 r equi r ed t he Supr eme Cour t t o accept appeal s of st at e supr eme cour t cases i nvol vi ng const i t ut i onal chal l enges t o st at e st at ut es, such as Baker . See Hi cks v. Mi r anda, 422 U. S. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 33 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (108 of 518) 34
332, 344 ( 1975) . The Cour t di smi ssed t he appeal i n a one- sent ence opi ni on f or want of a subst ant i al f eder al quest i on. Baker , 409 U. S. 810. Summar y di smi ssal s qual i f y as vot es on t he mer i t s of a case. Hi cks, 422 U. S. at 344 ( quot i ng Ohi o ex r el . Eat on v. Pr i ce, 360 U. S. 246, 247 ( 1959) ) ( i nt er nal quot at i on mar ks omi t t ed) . They t her ef or e pr event l ower cour t s f r om comi ng t o opposi t e concl usi ons on t he pr eci se i ssues pr esent ed and necessar i l y deci ded. Mandel v. Br adl ey, 432 U. S. 173, 176 ( 1977) ( per cur i am) . However , t he f act t hat Baker and t he case at hand addr ess t he same pr eci se i ssues does not end our i nqui r y. Summar y di smi ssal s l ose t hei r bi ndi ng f or ce when doct r i nal devel opment s i l l ust r at e t hat t he Supr eme Cour t no l onger vi ews a quest i on as unsubst ant i al , r egar dl ess of whet her t he Cour t expl i ci t l y over r ul es t he case. Hi cks, 422 U. S. at 344 ( quot i ng Por t Aut h. Bondhol der s Pr ot ect i ve Comm. v. Por t of N. Y. Aut h. , 387 F. 2d 259, 263 n. 3 ( 2d Ci r . 1967) ) ( i nt er nal quot at i on mar ks omi t t ed) . The di st r i ct cour t det er mi ned t hat doct r i nal devel opment s st r i pped Baker of i t s st at us as bi ndi ng pr ecedent . Bost i c, 970 F. Supp. 2d at 469- 70. Ever y f eder al cour t t o consi der t hi s i ssue si nce t he Supr eme Cour t deci ded Uni t ed St at es v. Wi ndsor , 133 S. Ct . 2675 ( 2013) , has r eached t he same concl usi on. See Bi shop v. Smi t h, Nos. 14- 5003, 14- 5006, 2014 WL 3537847, at *6- 7 ( 10t h Ci r . J ul y 18, 2014) ; Ki t chen v. Her ber t , Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 34 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (109 of 518) 35
No. 13- 4178, 2014 WL 2868044, at *7- 10 ( 10t h Ci r . J une 25, 2014) ; Love v. Beshear , No. 3: 13- cv- 750- H, 2014 WL 2957671, *2- 3 ( W. D. Ky. J ul y 1, 2014) ; Baski n v. Bogan, Nos. 1: 14- cv- 00355- RLY- TAB, 1: 14- cv- 00404- RLY- TAB, 2014 WL 2884868, at *4- 6 ( S. D. I nd. J une 25, 2014) ; Wol f v. Wal ker , No. 14- cv- 64- bbc, 2014 WL 2558444, at *4- 6 ( W. D. Wi s. J une 6, 2014) ; Whi t ewood v. Wol f , No. 1: 13- cv- 1861, 2014 WL 2058105, at *5- 6 ( M. D. Pa. May 20, 2014) ; Gei ger v. Ki t zhaber , Nos. 6: 13- cv- 01834- MC, 6: 13- cv- 02256- MC, 2014 WL 2054264, at *1 n. 1 ( D. Or . May 19, 2014) ; Lat t a v. Ot t er , No. 1: 13- cv- 00482- CWD, 2014 WL 1909999, at *8- 9 ( D. I daho May 13, 2014) ; DeBoer v. Snyder , 973 F. Supp. 2d 757, 773 n. 6 ( E. D. Mi ch. 2014) ; De Leon v. Per r y, 975 F. Supp. 2d 632, 647- 49 ( W. D. Tex. 2014) ; McGee v. Col e, No. 3: 13- 24068, 2014 WL 321122, at *8- 10 ( S. D. W. Va. J an. 29, 2014) . Wi ndsor concer ned whet her sect i on 3 of t he f eder al Def ense of Mar r i age Act ( DOMA) cont r avened t he Const i t ut i on s due pr ocess and equal pr ot ect i on guar ant ees. Sect i on 3 def i ned mar r i age and spouse as excl udi ng same- sex coupl es when t hose t er ms appear ed i n f eder al st at ut es, r egul at i ons, and di r ect i ves, r ender i ng l egal l y mar r i ed same- sex coupl es i nel i gi bl e f or myr i ad f eder al benef i t s. 133 S. Ct . at 2683, 2694. When i t deci ded t he case bel ow, t he Second Ci r cui t concl uded t hat Baker was no l onger pr ecedent i al , Wi ndsor v. Uni t ed St at es, 699 F. 3d 169, 178- 79 ( 2d Ci r . 2012) , over t he di ssent s vi gor ous ar gument s t o Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 35 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (110 of 518) 36
t he cont r ar y, see i d. at 192- 95 ( St r aub, J . , di ssent i ng i n par t and concur r i ng i n par t ) . Despi t e t hi s di sput e, t he Supr eme Cour t di d not di scuss Baker i n i t s opi ni on or dur i ng or al ar gument . 5
The Supr eme Cour t s wi l l i ngness t o deci de Wi ndsor wi t hout ment i oni ng Baker speaks vol umes r egar di ng whet her Baker r emai ns good l aw. The Cour t s devel opment of i t s due pr ocess and equal pr ot ect i on j ur i spr udence i n t he f our decades f ol l owi ng Baker i s even mor e i nst r uct i ve. On t he Due Pr ocess f r ont , Lawr ence v. Texas, 539 U. S. 558 ( 2003) , and Wi ndsor ar e par t i cul ar l y r el evant . I n Lawr ence, t he Cour t r ecogni zed t hat t he Due Pr ocess Cl auses of t he Fi f t h and Four t eent h Amendment s af f or d const i t ut i onal pr ot ect i on t o per sonal deci si ons r el at i ng t o mar r i age, pr ocr eat i on, cont r acept i on, f ami l y r el at i onshi ps, chi l d r ear i ng, and educat i on. . . . Per sons i n a homosexual r el at i onshi p may seek aut onomy f or t hese pur poses, j ust as
5 The const i t ut i onal i t y of a l aw t hat pr ohi bi t ed mar r i age f r om encompassi ng same- sex r el at i onshi ps was al so at i ssue i n Hol l i ngswor t h v. Per r y, 133 S. Ct . 2652 ( 2013) , a case t hat t he Supr eme Cour t ul t i mat el y deci ded on st andi ng gr ounds. Al t hough t he pet i t i oner s at t or ney at t empt ed t o i nvoke Baker dur i ng or al ar gument , J ust i ce Gi nsbur g i nt er j ect ed: Baker v. Nel son was 1971. The Supr eme Cour t hadn t even deci ded t hat gender - based cl assi f i cat i ons get any ki nd of hei ght ened scr ut i ny. . . . [ S] ame- sex i nt i mat e conduct was consi der ed cr i mi nal i n many st at es i n 1971, so I don t t hi nk we can ext r act much i n Baker v. Nel son. Or al Ar gument at 11: 33, Hol l i ngswor t h v. Per r y, 133 S. Ct . 2652 ( No. 12- 144) , avai l abl e at 2013 WL 1212745. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 36 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (111 of 518) 37
het er osexual per sons do. I d. at 574. These consi der at i ons l ed t he Cour t t o st r i ke down a Texas st at ut e t hat cr i mi nal i zed same- sex sodomy. I d. at 563, 578- 79. The Wi ndsor Cour t based i t s deci si on t o i nval i dat e sect i on 3 of DOMA on t he Fi f t h Amendment s Due Pr ocess Cl ause. The Cour t concl uded t hat sect i on 3 coul d not wi t hst and const i t ut i onal scr ut i ny because t he pr i nci pal pur pose and t he necessar y ef f ect of [ sect i on 3] ar e t o demean t hose per sons who ar e i n a l awf ul same- sex mar r i age, whol i ke t he unmar r i ed same- sex coupl e i n Lawr ence have a const i t ut i onal r i ght t o make mor al and sexual choi ces. 133 S. Ct . at 2694- 95. These cases f i r ml y posi t i on same- sex r el at i onshi ps wi t hi n t he ambi t of t he Due Pr ocess Cl auses pr ot ect i on. The Cour t has al so i ssued sever al maj or equal pr ot ect i on deci si ons si nce i t deci ded Baker . The Cour t s opi ni ons i n Cr ai g v. Bor en, 429 U. S. 190 ( 1976) , and Fr ont i er o v. Ri char dson, 411 U. S. 677 ( 1973) , i dent i f i ed sex- based cl assi f i cat i ons as quasi - suspect , causi ng t hem t o war r ant i nt er medi at e scr ut i ny r at her t han r at i onal basi s r evi ew, see Cr ai g, 429 U. S. at 218 ( Rehnqui st , J . , di ssent i ng) ( coi ni ng t he t er m i nt er medi at e l evel scr ut i ny t o descr i be t he Cour t s t est ( i nt er nal quot at i on mar ks omi t t ed) ) . Two decades l at er , i n Romer v. Evans, t he Supr eme Cour t st r uck down a Col or ado const i t ut i onal amendment t hat pr ohi bi t ed l egi sl at i ve, execut i ve, and j udi ci al act i on Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 37 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (112 of 518) 38
ai med at pr ot ect i ng gay, l esbi an, and bi sexual i ndi vi dual s f r om di scr i mi nat i on. 517 U. S. 620, 624, 635 ( 1996) . The Cour t concl uded t hat t he l aw vi ol at ed t he Four t eent h Amendment s Equal Pr ot ect i on Cl ause because i t s sheer br eadt h i s so di scont i nuous wi t h t he r easons of f er ed f or i t t hat t he amendment seems i nexpl i cabl e by anyt hi ng but ani mus t owar d t he cl ass i t af f ect s, causi ng t he l aw t o l ack[ ] a r at i onal r el at i onshi p t o l egi t i mat e st at e i nt er est s. I d. at 632. Fi nal l y, t he Supr eme Cour t couched i t s deci si on i n Wi ndsor i n bot h due pr ocess and equal pr ot ect i on t er ms. 133 S. Ct . at 2693, 2695. These cases demonst r at e t hat , si nce Baker , t he Cour t has meani ngf ul l y al t er ed t he way i t vi ews bot h sex and sexual or i ent at i on t hr ough t he equal pr ot ect i on l ens. I n l i ght of t he Supr eme Cour t s appar ent abandonment of Baker and t he si gni f i cant doct r i nal devel opment s t hat occur r ed af t er t he Cour t i ssued i t s summar y di smi ssal i n t hat case, we decl i ne t o vi ew Baker as bi ndi ng pr ecedent and pr oceed t o t he meat of t he Opponent s Four t eent h Amendment ar gument s.
I V. A. Our anal ysi s of t he Opponent s Four t eent h Amendment cl ai ms has t wo component s. Fi r st , we ascer t ai n what l evel of const i t ut i onal scr ut i ny appl i es: ei t her r at i onal basi s r evi ew Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 38 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (113 of 518) 39
or some f or m of hei ght ened scr ut i ny, such as st r i ct scr ut i ny. Second, we appl y t he appr opr i at e l evel of scr ut i ny t o det er mi ne whet her t he Vi r gi ni a Mar r i age Laws pass const i t ut i onal must er . Under bot h t he Due Pr ocess and Equal Pr ot ect i on Cl auses, i nt er f er ence wi t h a f undament al r i ght war r ant s t he appl i cat i on of st r i ct scr ut i ny. 6 Washi ngt on v. Gl ucksber g, 521 U. S. 702, 719- 20 ( 1997) ; Zabl ocki v. Redhai l , 434 U. S. 374, 383 ( 1978) . We t her ef or e begi n by assessi ng whet her t he Vi r gi ni a Mar r i age Laws i nf r i nge on a f undament al r i ght . Fundament al r i ght s spr i ng f r om t he Four t eent h Amendment s pr ot ect i on of i ndi vi dual l i ber t y, whi ch t he Supr eme Cour t has descr i bed as t he r i ght t o def i ne one s own concept of exi st ence, of meani ng, of t he uni ver se, and of t he myst er y of human l i f e. Pl anned Par ent hood of Se. Pa. v. Casey, 505 U. S. 833, 851 ( 1992) . Thi s l i ber t y i ncl udes t he f undament al r i ght t o mar r y. Zabl ocki , 434 U. S. at 383; Lovi ng v. Vi r gi ni a, 388 U. S. 1, 12 ( 1967) ; see Gr i swol d v.
6 The Equal Pr ot ect i on Cl ause al so di ct at es t hat some f or m of hei ght ened scr ut i ny appl i es when a l aw di scr i mi nat es based on a suspect or quasi - suspect cl assi f i cat i on, such as r ace or gender . See Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Ct r . , 473 U. S. 432, 440- 41 ( 1985) ; Mass. Bd. of Ret . v. Mur gi a, 427 U. S. 307, 313- 14 ( 1976) ( per cur i am) . Thi s Cour t pr evi ousl y decl i ned t o r ecogni ze sexual or i ent at i on as a suspect cl assi f i cat i on i n Thomasson v. Per r y, 80 F. 3d 915, 928 ( 4t h Ci r . 1996) ( en banc) , and Veney v. Wyche, 293 F. 3d 726, 731- 32 ( 4t h Ci r . 2002) . Because we concl ude t hat t he Vi r gi ni a Mar r i age Laws war r ant st r i ct scr ut i ny due t o t hei r i nf r i ngement of t he f undament al r i ght t o mar r y, we need not r each t he quest i on of whet her Thomasson and Veney r emai n good l aw. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 39 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (114 of 518) 40
Connect i cut , 381 U. S. 479, 485- 86 ( 1965) ( pl aci ng t he r i ght t o mar r y wi t hi n t he f undament al r i ght t o pr i vacy) ; see al so Ski nner v. Okl ahoma ex r el . Wi l l i amson, 316 U. S. 535, 541 ( 1942) ( char act er i zi ng mar r i age as one of t he basi c ci vi l r i ght s of man) ; Maynar d v. Hi l l , 125 U. S. 190, 205 ( 1888) ( cal l i ng mar r i age t he most i mpor t ant r el at i on i n l i f e and t he f oundat i on of t he f ami l y and of soci et y, wi t hout whi ch t her e woul d be nei t her ci vi l i zat i on nor pr ogr ess) . The Opponent s and Pr oponent s agr ee t hat mar r i age i s a f undament al r i ght . They st r ongl y di sagr ee, however , r egar di ng whet her t hat r i ght encompasses t he r i ght t o same- sex mar r i age. The Opponent s ar gue t hat t he f undament al r i ght t o mar r y bel ongs t o t he i ndi vi dual , who enj oys t he r i ght t o mar r y t he per son of hi s or her choi ce. By cont r ast , t he Pr oponent s poi nt out t hat , t r adi t i onal l y, st at es have sanct i oned onl y man- woman mar r i ages. They cont end t hat , i n l i ght of t hi s hi st or y, t he r i ght t o mar r y does not i ncl ude a r i ght t o same- sex mar r i age. Rel yi ng on Washi ngt on v. Gl ucksber g, t he Pr oponent s aver t hat t he di st r i ct cour t er r ed by not r equi r i ng a car ef ul descr i pt i on of t he asser t ed f undament al l i ber t y i nt er est , 521 U. S. at 721 ( i nt er nal quot at i on mar ks omi t t ed) , whi ch t hey char act er i ze as t he r i ght t o mar r i age t o anot her per son of t he same sex, not t he r i ght t o mar r y. I n Gl ucksber g, t he Supr eme Cour t descr i bed t he r i ght at i ssue as a r i ght t o commi t sui ci de Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 40 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (115 of 518) 41
wi t h anot her s assi st ance. I d. at 724. The Cour t decl i ned t o cat egor i ze t hi s r i ght as a new f undament al r i ght because i t was not , obj ect i vel y, deepl y r oot ed i n t hi s Nat i on s hi st or y and t r adi t i on. See i d. at 720- 21 ( quot i ng Moor e v. Ci t y of E. Cl evel and, 431 U. S. 494, 503 ( 1977) ) ( i nt er nal quot at i on mar ks omi t t ed) . The Pr oponent s ur ge us t o r ej ect t he r i ght t o same- sex mar r i age f or t he same r eason. We do not di sput e t hat st at es have r ef used t o per mi t same- sex mar r i ages f or most of our count r y s hi st or y. However , t hi s f act i s i r r el evant i n t hi s case because Gl ucksber g s anal ysi s appl i es onl y when cour t s consi der whet her t o r ecogni ze new f undament al r i ght s. See i d. at 720, 727 & n. 19 ( i dent i f yi ng t he above pr ocess as a way of expand[ i ng] t he concept of subst ant i ve due pr ocess beyond est abl i shed f undament al r i ght s, such as t he r i ght t o mar r y ( quot i ng Col l i ns v. Ci t y of Har ker Hei ght s, 503 U. S. 115, 125 ( 1992) ) ( i nt er nal quot at i on mar ks omi t t ed) ) . Because we concl ude t hat t he f undament al r i ght t o mar r y encompasses t he r i ght t o same- sex mar r i age, Gl ucksber g s anal ysi s i s i nappl i cabl e her e. Over t he decades, t he Supr eme Cour t has demonst r at ed t hat t he r i ght t o mar r y i s an expansi ve l i ber t y i nt er est t hat may st r et ch t o accommodat e changi ng soci et al nor ms. Per haps most not abl y, i n Lovi ng v. Vi r gi ni a, t he Supr eme Cour t i nval i dat ed a Vi r gi ni a l aw t hat pr ohi bi t ed whi t e i ndi vi dual s f r om mar r yi ng Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 41 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (116 of 518) 42
i ndi vi dual s of ot her r aces. 388 U. S. at 4. The Cour t expl ai ned t hat [ t ] he f r eedom t o mar r y has l ong been r ecogni zed as one of t he vi t al per sonal r i ght s essent i al t o t he or der l y pur sui t of happi ness by f r ee men and t hat no val i d basi s j ust i f i ed t he Vi r gi ni a l aw s i nf r i ngement of t hat r i ght . I d. at 12. Subsequent l y, i n Zabl ocki v. Redhai l , t he Supr eme Cour t consi der ed t he const i t ut i onal i t y of a Wi sconsi n st at ut e t hat r equi r ed peopl e obl i gat ed t o pay chi l d suppor t t o obt ai n a cour t or der gr ant i ng per mi ssi on t o mar r y bef or e t hey coul d r ecei ve a mar r i age l i cense. 434 U. S. at 375, 383- 84. The st at ut e speci f i ed t hat a cour t shoul d gr ant per mi ssi on onl y t o appl i cant s who pr oved t hat t hey had compl i ed wi t h t hei r chi l d suppor t obl i gat i ons and demonst r at ed t hat t hei r chi l dr en wer e not l i kel y t o become publ i c char ges. I d. at 375 ( i nt er nal quot at i on mar ks omi t t ed) . The Cour t hel d t hat t he st at ut e i mper mi ssi bl y i nf r i nged on t he r i ght t o mar r y. See i d. at 390- 91. Fi nal l y, i n Tur ner v. Saf l ey, t he Cour t det er mi ned t hat a Mi ssour i r egul at i on t hat gener al l y pr ohi bi t ed pr i son i nmat es f r om mar r yi ng was an unconst i t ut i onal br each of t he r i ght t o mar r y. 482 U. S. 78, 82, 94- 99 ( 1987) . These cases do not def i ne t he r i ght s i n quest i on as t he r i ght t o i nt er r aci al mar r i age, t he r i ght of peopl e owi ng chi l d suppor t t o mar r y, and t he r i ght of pr i son i nmat es t o mar r y. I nst ead, t hey speak of a br oad r i ght t o mar r y t hat i s not Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 42 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (117 of 518) 43
ci r cumscr i bed based on t he char act er i st i cs of t he i ndi vi dual s seeki ng t o exer ci se t hat r i ght . The Supr eme Cour t s unwi l l i ngness t o const r ai n t he r i ght t o mar r y t o cer t ai n subspeci es of mar r i age meshes wi t h i t s concl usi on t hat t he r i ght t o mar r y i s a mat t er of f r eedom of choi ce, Zabl ocki , 434 U. S. at 387, t hat r esi des wi t h t he i ndi vi dual , Lovi ng, 388 U. S. at 12. I f cour t s l i mi t ed t he r i ght t o mar r y t o cer t ai n coupl i ngs, t hey woul d ef f ect i vel y cr eat e a l i st of l egal l y pr ef er r ed spouses, r ender i ng t he choi ce of whom t o mar r y a hol l ow choi ce i ndeed. The Pr oponent s poi nt out t hat Lovi ng, Zabl ocki , and Tur ner each i nvol ved opposi t e- sex coupl es. They cont end t hat , because t he coupl es i n t hose cases chose t o ent er opposi t e- sex mar r i ages, we cannot use t hemt o concl ude t hat t he Supr eme Cour t woul d gr ant t he same l evel of const i t ut i onal pr ot ect i on t o t he choi ce t o mar r y a per son of t he same sex. However , t he Supr eme Cour t s deci si ons i n Lawr ence and Wi ndsor suggest ot her wi se. I n Lawr ence, t he Cour t expr essl y r ef used t o nar r owl y def i ne t he r i ght at i ssue as t he r i ght of homosexual s t o engage i n sodomy, concl udi ng t hat doi ng so woul d const i t ut e a f ai l ur e t o appr eci at e t he ext ent of t he l i ber t y at st ake. 539 U. S. at 566- 67. J ust as i t has done i n t he r i ght - t o- mar r y ar ena, t he Cour t i dent i f i ed t he r i ght at i ssue i n Lawr ence as a mat t er of choi ce, expl ai ni ng t hat gay and l esbi an i ndi vi dual sl i ke al l Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 43 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (118 of 518) 44
peopl eenj oy t he r i ght t o make deci si ons r egar di ng t hei r per sonal r el at i onshi ps. I d. at 567. As we not e above, t he Cour t r ei t er at ed t hi s t heme i n Wi ndsor , i n whi ch i t based i t s concl usi on t hat sect i on 3 of DOMA was unconst i t ut i onal , i n par t , on t hat pr ovi si on s di sr espect f or t he mor al and sexual choi ces t hat accompany a same- sex coupl e s deci si on t o mar r y. 133 S. Ct . at 2694. Lawr ence and Wi ndsor i ndi cat e t hat t he choi ces t hat i ndi vi dual s make i n t he cont ext of same- sex r el at i onshi ps enj oy t he same const i t ut i onal pr ot ect i on as t he choi ces accompanyi ng opposi t e- sex r el at i onshi ps. We t her ef or e have no r eason t o suspect t hat t he Supr eme Cour t woul d accor d t he choi ce t o mar r y someone of t he same sex any l ess r espect t han t he choi ce t o mar r y an opposi t e- sex i ndi vi dual who i s of a di f f er ent r ace, owes chi l d suppor t , or i s i mpr i soned. Accor di ngl y, we decl i ne t he Pr oponent s i nvi t at i on t o char act er i ze t he r i ght at i ssue i n t hi s case as t he r i ght t o same- sex mar r i age r at her t han si mpl y t he r i ght t o mar r y. Of cour se, [ b] y r eaf f i r mi ng t he f undament al char act er of t he r i ght t o mar r y, we do not mean t o suggest t hat ever y st at e r egul at i on whi ch r el at es i n any way t o t he i nci dent s of or pr er equi si t es f or mar r i age must be subj ect ed t o r i gor ous scr ut i ny. Zabl ocki , 434 U. S. at 386. St r i ct scr ut i ny appl i es onl y when l aws si gni f i cant l y i nt er f er e wi t h a f undament al r i ght . See i d. at 386- 87. The Vi r gi ni a Mar r i age Laws Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 44 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (119 of 518) 45
unquest i onabl y sat i sf y t hi s r equi r ement : t hey i mpede t he r i ght t o mar r y by pr event i ng same- sex coupl es f r om mar r yi ng and nul l i f yi ng t he l egal i mpor t of t hei r out - of - st at e mar r i ages. St r i ct scr ut i ny t her ef or e appl i es i n t hi s case.
B. Under st r i ct scr ut i ny, a l aw may be j ust i f i ed onl y by compel l i ng st at e i nt er est s, and must be nar r owl y dr awn t o expr ess onl y t hose i nt er est s. Car ey v. Popul at i on Ser vs. I nt l , 431 U. S. 678, 686 ( 1977) . The Pr oponent s bear t he bur den of demonst r at i ng t hat t he Vi r gi ni a Mar r i age Laws sat i sf y t hi s st andar d, see Fi sher v. Uni v. of Tex. at Aust i n, 133 S. Ct . 2411, 2420 ( 2013) , and t hey must r el y on t he l aws act ual pur pose[ s] r at her t han hypot het i cal j ust i f i cat i ons, see Shaw v. Hunt , 517 U. S. 899, 908 n. 4 ( 1996) . The Pr oponent s 7 cont end t hat f i ve compel l i ng i nt er est s under gi r d t he Vi r gi ni a Mar r i age Laws: ( 1) Vi r gi ni a s f eder al i sm- based i nt er est i n mai nt ai ni ng cont r ol over t he def i ni t i on of mar r i age wi t hi n i t s bor der s, ( 2) t he hi st or y and t r adi t i on of opposi t e- sex mar r i age, ( 3) pr ot ect i ng t he i nst i t ut i on of mar r i age, ( 4) encour agi ng r esponsi bl e
7 Al t hough some of t hese ar gument s appear onl y i n McQui gg s br i ef s, we at t r i but e t hem t o t he Pr oponent s because Schaef er r eser ved t he r i ght t o adopt and i ncor por at e i n whol e or i n par t McQui gg s di scussi on of t he r at i onal es under l yi ng t he Vi r gi ni a Mar r i age Laws. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 45 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (120 of 518) 46
pr ocr eat i on, and ( 5) pr omot i ng t he opt i mal chi l dr ear i ng envi r onment . We di scuss each of t hese i nt er est s i n t ur n.
1. Feder al i sm The Const i t ut i on does not gr ant t he f eder al gover nment any aut hor i t y over domest i c r el at i ons mat t er s, such as mar r i age. Accor di ngl y, t hr oughout our count r y s hi st or y, st at es have enj oyed t he f r eedom t o def i ne and r egul at e mar r i age as t hey see f i t . See Wi ndsor , 133 S. Ct . at 2691- 92. St at es cont r ol over mar r i age l aws wi t hi n t hei r bor der s has r esul t ed i n some var i at i on among st at es r equi r ement s. For exampl e, West Vi r gi ni a pr ohi bi t s f i r st cousi ns f r om mar r yi ng, W. Va. Code 48- 2- 302, but t he r emai ni ng st at es i n t hi s Ci r cui t al l ow f i r st cousi n mar r i age, see Md. Code Ann. , Fam. Law 2- 202; N. C. Gen. St at . 51- 3; S. C. Code Ann. 20- 1- 10; Va. Code Ann. 20- 38. 1. St at es power t o def i ne and r egul at e mar r i age al so account s f or t hei r di f f er i ng t r eat ment of same- sex coupl es. The Wi ndsor deci si on r est ed i n par t on t he Supr eme Cour t s r espect f or st at es supr emacy i n t he domest i c r el at i ons spher e. 8
8 I n Wi ndsor , t he Cour t di d not l abel t he t ype of const i t ut i onal scr ut i ny i t appl i ed, l eavi ng us unsur e how t he Cour t woul d f i t i t s f eder al i sm di scussi on wi t hi n a t r adi t i onal hei ght ened scr ut i ny or r at i onal basi s anal ysi s. The l ower cour t s have t aken di f f er i ng appr oaches, wi t h some di scussi ng Wi ndsor and f eder al i sm as a t hr eshol d mat t er , see, e. g. , Wol f , 2014 WL 2558444, at *8- 12; Bi shop v. Uni t ed St at es ex r el .
The Cour t r ecogni zed t hat sect i on 3 of DOMA upset t he st at us quo by r obbi ng st at es of t hei r abi l i t y t o def i ne mar r i age. Al t hough st at es coul d l egal i ze same- sex mar r i age, t hey coul d not ensur e t hat t he i nci dent s, benef i t s, and obl i gat i ons of mar r i age woul d be uni f or m wi t hi n t hei r bor der s. See Wi ndsor , 133 S. Ct . at 2692. However , t he Cour t di d not l ament t hat sect i on 3 had usur ped st at es aut hor i t y over mar r i age due t o i t s desi r e t o saf eguar d f eder al i sm. I d. ( [ T] he St at e s power i n def i ni ng t he mar i t al r el at i on i s of cent r al r el evance i n t hi s case qui t e apar t f r om t he pr i nci pl es of f eder al i sm. ) . I t s concer n spr ung f r om sect i on 3 s cr eat i on of t wo cl asses of mar r i ed coupl es wi t hi n st at es t hat had l egal i zed same- sex mar r i age: opposi t e- sex coupl es, whose mar r i ages t he f eder al gover nment r ecogni zed, and same- sex coupl es, whose mar r i ages t he f eder al gover nment i gnor ed. I d. The r esul t i ng i nj ur y t o same- sex coupl es ser ved as t he f oundat i on f or t he Cour t s concl usi on t hat sect i on 3 vi ol at ed t he Fi f t h Amendment s Due Pr ocess Cl ause. I d. at 2693.
Hol der , 962 F. Supp. 2d 1252, 1277- 79 ( N. D. Okl a. 2014) ; Ki t chen v. Her ber t , 961 F. Supp. 2d 1181, 1193- 94 ( D. Ut ah 2013) , and ot her ssuch as t he di st r i ct cour t i n t hi s caseconsi der i ng f eder al i sm as a st at e i nt er est under l yi ng t he same- sex mar r i age bans at i ssue, see, e. g. , Lat t a, 2014 WL 1909999, at *25- 26; DeBoer , 973 F. Supp. 2d at 773- 75; Bost i c, 970 F. Supp. 2d at 475- 77. Al t hough we f ol l ow t he di st r i ct cour t s l ead and si t uat e our f eder al i sm di scussi on wi t hi n our appl i cat i on of st r i ct scr ut i ny, our concl usi on woul d r emai n t he same even i f we sel ect ed an al t er nat e or gani zat i onal appr oach. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 47 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (122 of 518) 48
Ci t i ng Wi ndsor , t he Pr oponent s ur ge us t o vi ew Vi r gi ni a s f eder al i sm- based i nt er est i n def i ni ng mar r i age as a sui t abl e j ust i f i cat i on f or t he Vi r gi ni a Mar r i age Laws. However , Wi ndsor i s act ual l y det r i ment al t o t hei r posi t i on. Al t hough t he Cour t emphasi zed st at es t r adi t i onal aut hor i t y over mar r i age, i t acknowl edged t hat [ s] t at e l aws def i ni ng and r egul at i ng mar r i age, of cour se, must r espect t he const i t ut i onal r i ght s of per sons. I d. at 2691 ( ci t i ng Lovi ng, 388 U. S. 1) ; see al so i d. at 2692 ( The St at es i nt er est i n def i ni ng and r egul at i ng t he mar i t al r el at i on[ ] [ i s] subj ect t o const i t ut i onal guar ant ees. ) . Wi ndsor does not t each us t hat f eder al i sm pr i nci pl es can j ust i f y depr i vi ng i ndi vi dual s of t hei r const i t ut i onal r i ght s; i t r ei t er at es Lovi ng s admoni t i on t hat t he st at es must exer ci se t hei r aut hor i t y wi t hout t r ampl i ng const i t ut i onal guar ant ees. Vi r gi ni a s f eder al i sm- based i nt er est i n def i ni ng mar r i age t her ef or e cannot j ust i f y i t s encr oachment on t he f undament al r i ght t o mar r y. The Supr eme Cour t s r ecent deci si on i n Schuet t e v. Coal i t i on t o Def end Af f i r mat i ve Act i on, 134 S. Ct . 1623 ( 2014) , does not change t he concl usi on t hat Wi ndsor di ct at es. I n Schuet t e, t he Cour t r ef used t o st r i ke down a vot er - appr oved st at e const i t ut i onal amendment t hat bar r ed publ i c uni ver si t i es i n Mi chi gan f r om usi ng r ace- based pr ef er ences as par t of t hei r admi ssi ons pr ocesses. I d. at 1629, 1638. The Cour t decl i ned t o Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 48 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (123 of 518) 49
cl osel y scr ut i ni ze t he amendment because i t was not used, or . . . l i kel y t o be used, t o encour age i nf l i ct i on of i nj ur y by r eason of r ace. See i d. at 1638. I nst ead, t he Cour t dwel l ed on t he need t o r espect t he vot er s pol i cy choi ce, concl udi ng t hat [ i ] t i s demeani ng t o t he democr at i c pr ocess t o pr esume t hat t he vot er s ar e not capabl e of deci di ng an i ssue of t hi s sensi t i vi t y on decent and r at i onal gr ounds and t he j udi ci ar y s r ol e was not t o di sempower t he vot er s f r om choosi ng whi ch pat h t o f ol l ow. I d. at 1635- 38. The Pr oponent s emphasi ze t hat Vi r gi ni a s vot er s appr oved t he Mar shal l / Newman Amendment . Li ke t he Mi chi gan amendment at i ssue i n Schuet t e, t he Mar shal l / Newman Amendment i s t he codi f i cat i on of Vi r gi ni ans pol i cy choi ce i n a l egal ar ena t hat i s f r aught wi t h i nt ense soci al and pol i t i cal debat e. Amer i cans abi l i t y t o speak wi t h t hei r vot es i s essent i al t o our democr acy. But t he peopl e s wi l l i s not an i ndependent compel l i ng i nt er est t hat war r ant s depr i vi ng same- sex coupl es of t hei r f undament al r i ght t o mar r y. The ver y pur pose of a Bi l l of Ri ght s 9 was t o wi t hdr aw cer t ai n subj ect s f r om t he vi ci ssi t udes of pol i t i cal
9 Of cour se, t he Four t eent h Amendment i s not par t of t he Bi l l of Ri ght s. Thi s excer pt f r om Bar net t e i s never t hel ess r el evant her e due t o t he Four t eent h Amendment s si mi l ar goal of pr ot ect i ng unpopul ar mi nor i t i es f r om gover nment over r eachi ng, see Regent s of Uni v. of Cal . v. Bakke, 438 U. S. 265, 293 ( 1978) , and i t s r ol e i n r ender i ng t he Bi l l of Ri ght s appl i cabl e t o t he st at es, see Duncan v. Loui si ana, 391 U. S. 145, 147- 48 ( 1968) . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 49 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (124 of 518) 50
cont r over sy, t o pl ace t hem beyond t he r each of maj or i t i es and of f i ci al s and t o est abl i sh t hem as l egal pr i nci pl es t o be appl i ed by t he cour t s. One s r i ght t o l i f e, l i ber t y, and pr oper t y, t o f r ee speech, a f r ee pr ess, f r eedom of wor shi p and assembl y, and ot her f undament al r i ght s may not be submi t t ed t o vot e; t hey depend on t he out come of no el ect i ons.
W. Va. St at e Bd. of Educ. v. Bar net t e, 319 U. S. 624, 638 ( 1943) ( f oot not e added) ; see al so Romer , 517 U. S. at 623 ( i nval i dat i ng a vot er - appr oved amendment t o Col or ado s const i t ut i on) ; Lucas v. For t y- Four t h Gen. Assembl y of Col o. , 377 U. S. 713, 736- 37 ( 1964) ( A ci t i zen s const i t ut i onal r i ght s can har dl y be i nf r i nged si mpl y because a maj or i t y of t he peopl e choose t hat i t be. ) . Accor di ngl y, nei t her Vi r gi ni a s f eder al i sm- based i nt er est i n def i ni ng mar r i age nor our r espect f or t he democr at i c pr ocess t hat codi f i ed t hat def i ni t i on can excuse t he Vi r gi ni a Mar r i age Laws i nf r i ngement of t he r i ght t o mar r y.
2. Hi st or y and Tr adi t i on The Pr oponent s al so poi nt t o t he hi st or y and t r adi t i on of opposi t e- sex mar r i age as a compel l i ng i nt er est t hat suppor t s t he Vi r gi ni a Mar r i age Laws. The Supr eme Cour t has made i t cl ear t hat , even under r at i onal basi s r evi ew, t he [ a] nci ent l i neage of a l egal concept does not gi ve i t i mmuni t y f r om at t ack. Hel l er v. Doe ex r el . Doe, 509 U. S. 312, 326 ( 1993) . The cl osel y l i nked i nt er est of pr omot i ng mor al pr i nci pl es i s si mi l ar l y i nf i r m i n l i ght of Lawr ence: t he f act t hat t he Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 50 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (125 of 518) 51
gover ni ng maj or i t y i n a St at e has t r adi t i onal l y vi ewed a par t i cul ar pr act i ce as i mmor al i s not a suf f i ci ent r eason f or uphol di ng a l aw pr ohi bi t i ng t he pr act i ce; nei t her hi st or y nor t r adi t i on coul d save a l aw pr ohi bi t i ng mi scegenat i on f r om const i t ut i onal at t ack. 539 U. S. at 577- 78 ( quot i ng Bower s v. Har dwi ck, 478 U. S. 186, 216 ( 1986) ( St evens, J . , di ssent i ng) ) ( i nt er nal quot at i on mar ks omi t t ed) ; see al so i d. at 601 ( Scal i a, J . , di ssent i ng) ( But pr eser vi ng t he t r adi t i onal i nst i t ut i on of mar r i age i s j ust a ki nder way of descr i bi ng t he St at e s mor al di sappr oval of same- sex coupl es. ) . Pr eser vi ng t he hi st or i cal and t r adi t i onal st at us quo i s t her ef or e not a compel l i ng i nt er est t hat j ust i f i es t he Vi r gi ni a Mar r i age Laws.
3. Saf eguar di ng t he I nst i t ut i on of Mar r i age I n addi t i on t o ar gui ng t hat hi st or y and t r adi t i on ar e compel l i ng i nt er est s i n t hei r own r i ght s, t he Pr oponent s war n t hat devi at i ng f r om t he t r adi t i on of opposi t e- sex mar r i age wi l l dest abi l i ze t he i nst i t ut i on of mar r i age. The Pr oponent s suggest t hat l egal i zi ng same- sex mar r i age wi l l sever t he l i nk bet ween mar r i age and pr ocr eat i on: t hey ar gue t hat , i f same- sex coupl es who cannot pr ocr eat e nat ur al l yar e al l owed t o mar r y, t he st at e wi l l sanct i on t he i dea t hat mar r i age i s a vehi cl e f or adul t s emot i onal f ul f i l l ment , not si mpl y a f r amewor k f or par ent hood. Accor di ng t o t he Pr oponent s, i f adul t s ar e t he f ocal poi nt of Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 51 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (126 of 518) 52
mar r i age, t hen no l ogi cal gr ounds r ei nf or ce st abi l i zi ng nor ms l i ke sexual excl usi vi t y, per manence, and monogamy, whi ch exi st t o benef i t chi l dr en. We r ecogni ze t hat , i n some cases, we owe subst ant i al def er ence t o t he pr edi ct i ve j udgment s of t he Vi r gi ni a Gener al Assembl y, f or whom t he Pr oponent s pur por t t o speak. Tur ner Br oad. Sys. , I nc. v. FCC, 520 U. S. 180, 195 ( 1997) . However , even i f we vi ew t he Pr oponent s t heor i es t hr ough r ose- col or ed gl asses, we concl ude t hat t hey ar e unf ounded f or t wo key r easons. Fi r st , t he Supr eme Cour t r ej ect ed t he vi ew t hat mar r i age i s about onl y pr ocr eat i on i n Gr i swol d v. Connect i cut , i n whi ch i t uphel d mar r i ed coupl es r i ght not t o pr ocr eat e and ar t i cul at ed a vi ew of mar r i age t hat has not hi ng t o do wi t h chi l dr en: Mar r i age i s a comi ng t oget her f or bet t er or f or wor se, hopef ul l y endur i ng, and i nt i mat e t o t he degr ee of bei ng sacr ed. I t i s an associ at i on t hat pr omot es a way of l i f e, not causes; a har mony i n l i vi ng, not pol i t i cal f ai t hs; a bi l at er al l oyal t y, not commer ci al or soci al pr oj ect s. Yet i t i s an associ at i on f or as nobl e a pur pose as any i nvol ved i n our pr i or deci si ons.
381 U. S. at 485- 86; see al so Tur ner , 482 U. S. at 95- 96 ( descr i bi ng many non- pr ocr eat i ve pur poses of mar r i age) . The f act t hat mar r i age s st abi l i zi ng nor ms have endur ed i n t he f i ve decades si nce t he Supr eme Cour t made t hi s pr onouncement weakens Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 52 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (127 of 518) 53
t he ar gument t hat coupl es r emai n i n monogamous mar r i ages onl y f or t he sake of t hei r of f spr i ng. Second, t he pr i mar y suppor t t hat t he Pr oponent s of f er f or t hei r t heor y i s t he l egacy of a whol l y unr el at ed l egal change t o mar r i age: no- f aul t di vor ce. Al t hough no- f aul t di vor ce cer t ai nl y al t er ed t he r eal i t i es of mar r i ed l i f e by maki ng i t easi er f or coupl es t o end t hei r r el at i onshi ps, we have no r eason t o t hi nk t hat l egal i zi ng same- sex mar r i age wi l l have a si mi l ar dest abi l i zi ng ef f ect . I n f act , i t i s mor e l ogi cal t o t hi nk t hat same- sex coupl es want access t o mar r i age so t hat t hey can t ake advant age of i t s hal l mar ks, i ncl udi ng f ai t hf ul ness and per manence, and t hat al l owi ng l ovi ng, commi t t ed same- sex coupl es t o mar r y and r ecogni zi ng t hei r out - of - st at e mar r i ages wi l l st r engt hen t he i nst i t ut i on of mar r i age. We t her ef or e r ej ect t he Pr oponent s concer ns.
4. Responsi bl e Pr ocr eat i on Next , t he Pr oponent s cont end t hat t he Vi r gi ni a Mar r i age Laws di f f er ent i at i on bet ween opposi t e- sex and same- sex coupl es st ems f r om t he f act t hat uni nt ended pr egnanci es cannot r esul t f r om same- sex uni ons. By sanct i oni ng onl y opposi t e- sex mar r i ages, t he Vi r gi ni a Mar r i age Laws pr ovi d[ e] st abi l i t y t o t he t ypes of r el at i onshi ps t hat r esul t i n unpl anned pr egnanci es, t her eby avoi di ng or di mi ni shi ng t he negat i ve out comes of t en Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 53 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (128 of 518) 54
associ at ed wi t h uni nt ended chi l dr en. The Pr oponent s al l ege t hat chi l dr en bor n t o unwed par ent s f ace a si gni f i cant r i sk of bei ng r ai sed i n unst abl e f ami l i es, whi ch i s har mf ul t o t hei r devel opment . Vi r gi ni a, of cour se, has a dut y of t he hi ghest or der t o pr ot ect t he i nt er est s of mi nor chi l dr en, par t i cul ar l y t hose of t ender year s. Pal mor e v. Si dot i , 466 U. S. 429, 433 ( 1984) . However , t he Vi r gi ni a Mar r i age Laws ar e not appr opr i at el y t ai l or ed t o f ur t her t hi s i nt er est . I f Vi r gi ni a sought t o ensur e r esponsi bl e pr ocr eat i on vi a t he Vi r gi ni a Mar r i age Laws, t he l aws ar e woef ul l y under i ncl usi ve. Same- sex coupl es ar e not t he onl y cat egor y of coupl es who cannot r epr oduce acci dent al l y. For exampl e, opposi t e- sex coupl es cannot pr ocr eat e uni nt ent i onal l y i f t hey i ncl ude a post - menopausal woman or an i ndi vi dual wi t h a medi cal condi t i on t hat pr event s unassi st ed concept i on. The Pr oponent s at t empt t o downpl ay t he si mi l ar i t y bet ween same- sex coupl es and i nf er t i l e opposi t e- sex coupl es i n t hr ee ways. Fi r st , t hey poi nt out t hat st er i l e i ndi vi dual s coul d r emedy t hei r f er t i l i t y t hr ough f ut ur e medi cal advances. Thi s pot ent i al i t y, however , does not expl ai n why Vi r gi ni a shoul d t r eat same- sex and i nf er t i l e opposi t e- sex coupl es di f f er ent l y dur i ng t he cour se of t he l at t er gr oup s i nf er t i l i t y. Second, t he Pr oponent s posi t t hat , even i f one member of a man- woman coupl e i s st er i l e, t he ot her member may not be. They suggest Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 54 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (129 of 518) 55
t hat , wi t hout mar r i age s monogamy mandat e, t hi s f er t i l e i ndi vi dual i s mor e l i kel y t o have an uni nt ended chi l d wi t h a t hi r d par t y. They cont end t hat , due t o t hi s possi bi l i t y, even opposi t e- sex coupl es who cannot pr ocr eat e need mar r i age t o channel t hei r pr ocr eat i ve act i vi t y i n a way t hat same- sex coupl es do not . The Pr oponent s ar gument assumes t hat i ndi vi dual s i n same- sex r el at i onshi ps never have opposi t e- sex sexual par t ner s, whi ch i s si mpl y not t he case. Thi r d, t he Pr oponent s i mpl y t hat , by mar r yi ng, i nf er t i l e opposi t e- sex coupl es set a posi t i ve exampl e f or coupl es who can have uni nt ended chi l dr en, t her eby encour agi ng t hem t o mar r y. We see no r eason why commi t t ed same- sex coupl es cannot ser ve as si mi l ar r ol e model s. We t her ef or e r ej ect t he Pr oponent s at t empt s t o di f f er ent i at e same- sex coupl es f r om ot her coupl es who cannot pr ocr eat e acci dent al l y. Because same- sex coupl es and i nf er t i l e opposi t e- sex coupl es ar e si mi l ar l y si t uat ed, t he Equal Pr ot ect i on Cl ause counsel s agai nst t r eat i ng t hese gr oups di f f er ent l y. See Ci t y of Cl ebur ne, 473 U. S. at 439 ( expl ai ni ng t hat t he Equal Pr ot ect i on Cl ause i s essent i al l y a di r ect i on t hat al l per sons si mi l ar l y si t uat ed shoul d be t r eat ed al i ke) . Due t o t he Vi r gi ni a Mar r i age Laws under i ncl usi vi t y, t hi s case r esembl es Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Cent er , I nc. I n Ci t y of Cl ebur ne, t he Supr eme Cour t st r uck down a ci t y l aw t hat r equi r ed gr oup homes f or t he i nt el l ect ual l y di sabl ed t o Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 55 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (130 of 518) 56
obt ai n a speci al use per mi t . I d. at 447- 50. The ci t y di d not i mpose t he same r equi r ement on si mi l ar st r uct ur es, such as apar t ment compl exes and nur si ng homes. I d. at 447. The Cour t det er mi ned t hat t he per mi t r equi r ement was so under i ncl usi ve t hat t he ci t y s mot i vat i on must have r est [ ed] on an i r r at i onal pr ej udi ce, r ender i ng t he l aw unconst i t ut i onal . I d. at 450. I n l i ght of t he Vi r gi ni a Mar r i age Laws ext r eme under i ncl usi vi t y, we ar e f or ced t o dr aw t he same concl usi on i n t hi s case. The Pr oponent s r esponsi bl e pr ocr eat i on ar gument f al t er s f or anot her r eason as wel l . St r i ct scr ut i ny r equi r es t hat a st at e s means f ur t her i t s compel l i ng i nt er est . See Shaw, 517 U. S. at 915 ( Al t hough we have not al ways pr ovi ded pr eci se gui dance on how cl osel y t he means . . . must ser ve t he end ( t he j ust i f i cat i on or compel l i ng i nt er est ) , we have al ways expect ed t hat t he l egi sl at i ve act i on woul d subst ant i al l y addr ess, i f not achi eve, t he avowed pur pose. ) . Pr ohi bi t i ng same- sex coupl es f r om mar r yi ng and i gnor i ng t hei r out - of - st at e mar r i ages does not ser ve Vi r gi ni a s goal of pr event i ng out - of - wedl ock bi r t hs. Al t hough same- sex coupl es cannot pr ocr eat e acci dent al l y, t hey can and do have chi l dr en vi a ot her met hods. Accor di ng t o an ami cus br i ef f i l ed by Dr . Gar y J . Gat es, as of t he 2010 U. S. Census, mor e t han 2500 same- sex coupl es wer e r ai si ng mor e t han 4000 chi l dr en under t he age of ei ght een i n Vi r gi ni a. The Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 56 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (131 of 518) 57
Vi r gi ni a Mar r i age Laws t her ef or e i ncr ease t he number of chi l dr en r ai sed by unmar r i ed par ent s. The Pr oponent s acknowl edge t hat same- sex coupl es become par ent s. They cont end, however , t hat t he st at e has no i nt er est i n channel i ng same- sex coupl es pr ocr eat i ve act i vi t i es i nt o mar r i age because same- sex coupl es br i ng chi l dr en i nt o t hei r r el at i onshi p[ s] onl y t hr ough i nt ent i onal choi ce and pr e- pl anned act i on. Accor di ngl y, [ t ] hose coupl es nei t her advance nor t hr eat en soci et y s publ i c pur pose f or mar r i agest abi l i zi ng par ent al r el at i onshi ps f or t he benef i t of chi l dr eni n t he same manner , or t o t he same degr ee, t hat sexual r el at i onshi ps bet ween men and women do. I n suppor t of t hi s ar gument , t he Pr oponent s i nvoke t he Supr eme Cour t s deci si on i n J ohnson v. Robi son, 415 U. S. 361 ( 1974) . J ohnson concer ned educat i onal benef i t s t hat t he f eder al gover nment gr ant ed t o mi l i t ar y vet er ans who ser ved on act i ve dut y. I d. at 363. The gover nment pr ovi ded t hese benef i t s t o encour age enl i st ment and make mi l i t ar y ser vi ce mor e pal at abl e t o exi st i ng ser vi cemember s. I d. at 382- 83. A consci ent i ous obj ect or who r ef used t o ser ve i n t he mi l i t ar y f or r el i gi ous r easonsbr ought sui t , cont endi ng t hat t he gover nment act ed unconst i t ut i onal l y by gr ant i ng benef i t s t o vet er ans but not consci ent i ous obj ect or s. I d. at 363- 64. The Cour t expl ai ned t hat , [ w] hen, as i n t hi s case, t he i ncl usi on of one gr oup Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 57 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (132 of 518) 58
pr omot es a l egi t i mat e gover nment al pur pose, and t he addi t i on of ot her gr oups woul d not , we cannot say t hat t he st at ut e s cl assi f i cat i on of benef i ci ar i es and nonbenef i ci ar i es i s i nvi di ousl y di scr i mi nat or y. I d. at 383. Because of f er i ng educat i onal benef i t s t o consci ent i ous obj ect or s woul d not i ncent i vi ze mi l i t ar y ser vi ce, t he f eder al gover nment s l i ne- dr awi ng was const i t ut i onal . J ohnson, 415 U. S. at 382- 83. The Pr oponent s cl ai m t hat t r eat i ng opposi t e- sex coupl es di f f er ent l y f r om same- sex coupl es i s equal l y j ust i f i ed because t he t wo gr oups ar e not si mi l ar l y si t uat ed wi t h r espect t o t hei r pr ocr eat i ve pot ent i al . J ohnson appl i ed r at i onal basi s r evi ew, i d. at 374- 75, so we st r ongl y doubt i t s appl i cabi l i t y t o our st r i ct scr ut i ny anal ysi s. I n any event , we can easi l y di st i ngui sh J ohnson f r om t he i nst ant case. I n J ohnson, of f er i ng educat i onal benef i t s t o vet er ans who ser ved on act i ve dut y pr omot ed t he gover nment s goal of maki ng mi l i t ar y ser vi ce mor e at t r act i ve. Ext endi ng t hose benef i t s t o consci ent i ous obj ect or s, whose r el i gi ous bel i ef s pr ecl uded mi l i t ar y ser vi ce, di d not f ur t her t hat obj ect i ve. By cont r ast , a st abl e mar i t al r el at i onshi p i s at t r act i ve r egar dl ess of a coupl e s pr ocr eat i ve abi l i t y. Al l owi ng i nf er t i l e opposi t e- sex coupl es t o mar r y does not hi ng t o f ur t her t he gover nment s goal of channel i ng pr ocr eat i ve conduct i nt o mar r i age. Thus, excl udi ng same- sex coupl es f r om mar r i age Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 58 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (133 of 518) 59
due t o t hei r i nabi l i t y t o have uni nt ended chi l dr en makes l i t t l e sense. J ohnson t her ef or e does not al t er our concl usi on t hat bar r i ng same- sex coupl es access t o mar r i age does not hi ng t o f ur t her Vi r gi ni a s i nt er est i n r esponsi bl e pr ocr eat i on.
5. Opt i mal Chi l dr ear i ng We now shi f t t o di scussi ng t he mer i t of t he f i nal compel l i ng i nt er est t hat t he Pr oponent s i nvoke: opt i mal chi l dr ear i ng. The Pr oponent s aver t hat chi l dr en devel op best when r ear ed by t hei r mar r i ed bi ol ogi cal par ent s i n a st abl e f ami l y uni t . They dwel l on t he i mpor t ance of gender - di f f er ent i at ed par ent i ng and ar gue t hat sanct i oni ng same- sex mar r i age wi l l depr i ve chi l dr en of t he benef i t of bei ng r ai sed by a mot her and a f at her , who have di st i nct par ent i ng st yl es. I n essence, t he Pr oponent s ar gue t hat t he Vi r gi ni a Mar r i age Laws saf eguar d chi l dr en by pr event i ng same- sex coupl es f r om mar r yi ng and st ar t i ng i nf er i or f ami l i es. The Opponent s and t hei r ami ci cast ser i ous doubt on t he accur acy of t he Pr oponent s cont ent i ons. For exampl e, as t he Amer i can Psychol ogi cal Associ at i on, Amer i can Academy of Pedi at r i cs, Amer i can Psychi at r i c Associ at i on, Nat i onal Associ at i on of Soci al Wor ker s, and Vi r gi ni a Psychol ogi cal Associ at i on ( col l ect i vel y, t he APA) expl ai n i n t hei r ami cus br i ef , t her e i s no sci ent i f i c evi dence t hat par ent i ng Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 59 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (134 of 518) 60
ef f ect i veness i s r el at ed t o par ent al sexual or i ent at i on, and t he same f act or si ncl udi ng f ami l y st abi l i t y, economi c r esour ces, and t he qual i t y of par ent - chi l d r el at i onshi psar e l i nked t o chi l dr en s posi t i ve devel opment , whet her t hey ar e r ai sed by het er osexual , l esbi an, or gay par ent s. Accor di ng t o t he APA, t he par ent i ng abi l i t i es of gay men and l esbi ansand t he posi t i ve out comes f or t hei r chi l dr enar e not ar eas wher e most cr edi bl e sci ent i f i c r esear cher s di sagr ee, and t he cont r ar y st udi es t hat t he Pr oponent s ci t e do not r ef l ect t he cur r ent st at e of sci ent i f i c knowl edge. See al so DeBoer , 973 F. Supp. 2d at 760- 68 ( maki ng f act ual f i ndi ngs and r eachi ng t he same concl usi on) . I n f act , t he APA expl ai ns t hat , by pr event i ng same- sex coupl es f r om mar r yi ng, t he Vi r gi ni a Mar r i age Laws act ual l y har m t he chi l dr en of same- sex coupl es by st i gmat i zi ng t hei r f ami l i es and r obbi ng t hem of t he st abi l i t y, economi c secur i t y, and t oget her ness t hat mar r i age f ost er s. The Supr eme Cour t r eached a si mi l ar concl usi on i n Wi ndsor , i n whi ch i t obser ved t hat f ai l i ng t o r ecogni ze same- sex mar r i ages humi l i at es t ens of t housands of chi l dr en now bei ng r ai sed by same- sex coupl es and makes i t even mor e di f f i cul t f or t he chi l dr en t o under st and t he i nt egr i t y and cl oseness of t hei r own f ami l y and i t s concor d wi t h ot her f ami l i es i n t hei r communi t y and i n t hei r dai l y l i ves. 133 S. Ct . at 2694. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 60 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (135 of 518) 61
We f i nd t he ar gument s t hat t he Opponent s and t hei r ami ci make on t hi s i ssue ext r emel y per suasi ve. However , we need not r esol ve t hi s di sput e because t he Pr oponent s opt i mal chi l dr ear i ng ar gument f al t er s f or at l east t wo ot her r easons. Fi r st , under hei ght ened scr ut i ny, st at es cannot suppor t a l aw usi ng over br oad gener al i zat i ons about t he di f f er ent t al ent s, capaci t i es, or pr ef er ences of t he gr oups i n quest i on. Uni t ed St at es v. Vi r gi ni a, 518 U. S. 515, 533- 34 ( 1996) ( r ej ect i ng i nher ent di f f er ences bet ween men and women as a j ust i f i cat i on f or excl udi ng al l women f r om a t r adi t i onal l y al l - mal e mi l i t ar y col l ege) ; see al so St anl ey v. I l l i noi s, 405 U. S. 645, 656- 58 ( 1972) ( hol di ng t hat a st at e coul d not pr esume t hat unmar r i ed f at her s wer e unf i t par ent s) . The Pr oponent s st at ement s r egar di ng same- sex coupl es par ent i ng abi l i t y cer t ai nl y qual i f y as over br oad gener al i zat i ons. Second, as we expl ai n above, st r i ct scr ut i ny r equi r es congr ui t y bet ween a l aw s means and i t s end. Thi s congr ui t y i s absent her e. Ther e i s absol ut el y no r eason t o suspect t hat pr ohi bi t i ng same- sex coupl es f r om mar r yi ng and r ef usi ng t o r ecogni ze t hei r out - of - st at e mar r i ages wi l l cause same- sex coupl es t o r ai se f ewer chi l dr en or i mpel mar r i ed opposi t e- sex coupl es t o r ai se mor e chi l dr en. The Vi r gi ni a Mar r i age Laws t her ef or e do not f ur t her Vi r gi ni a s i nt er est i n channel i ng chi l dr en i nt o opt i mal f ami l i es, even i f Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 61 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (136 of 518) 62
we wer e t o accept t he dubi ous pr oposi t i on t hat same- sex coupl es ar e l ess capabl e par ent s. Because t he Pr oponent s ar gument s ar e based on over br oad gener al i zat i ons about same- sex par ent s, and because t her e i s no l i nk bet ween banni ng same- sex mar r i age and pr omot i ng opt i mal chi l dr ear i ng, t hi s ai m cannot suppor t t he Vi r gi ni a Mar r i age Laws. Al l of t he Pr oponent s j ust i f i cat i ons f or t he Vi r gi ni a Mar r i age Laws t her ef or e f ai l , and t he l aws cannot sur vi ve st r i ct scr ut i ny.
V. For t he f or egoi ng r easons, we concl ude t hat t he Vi r gi ni a Mar r i age Laws vi ol at e t he Due Pr ocess and Equal Pr ot ect i on Cl auses of t he Four t eent h Amendment t o t he ext ent t hat t hey pr event same- sex coupl es f r om mar r yi ng and pr ohi bi t Vi r gi ni a f r om r ecogni zi ng same- sex coupl es l awf ul out - of - st at e mar r i ages. We t her ef or e af f i r m t he di st r i ct cour t s gr ant of t he Pl ai nt i f f s mot i on f or summar y j udgment and i t s deci si on t o enj oi n enf or cement of t he Vi r gi ni a Mar r i age Laws. 10
10 Because we ar e abl e t o r esol ve t he mer i t s of t he Opponent s cl ai ms, we need not consi der t hei r al t er nat i ve r equest f or a pr el i mi nar y i nj unct i on. We assume t hat t he di st r i ct cour t s deci si on t o enj oi n enf or cement of t he Vi r gi ni a Mar r i age Laws encompassed a per manent i nj unct i on, whi ch t he Pl ai nt i f f s r equest ed i n connect i on wi t h t hei r mot i on f or summar y j udgment . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 62 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (137 of 518) 63
We r ecogni ze t hat same- sex mar r i age makes some peopl e deepl y uncomf or t abl e. However , i ner t i a and appr ehensi on ar e not l egi t i mat e bases f or denyi ng same- sex coupl es due pr ocess and equal pr ot ect i on of t he l aws. Ci vi l mar r i age i s one of t he cor ner st ones of our way of l i f e. I t al l ows i ndi vi dual s t o cel ebr at e and publ i cl y decl ar e t hei r i nt ent i ons t o f or m l i f el ong par t ner shi ps, whi ch pr ovi de unpar al l el ed i nt i macy, compani onshi p, emot i onal suppor t , and secur i t y. The choi ce of whet her and whomt o mar r y i s an i nt ensel y per sonal deci si on t hat al t er s t he cour se of an i ndi vi dual s l i f e. Denyi ng same- sex coupl es t hi s choi ce pr ohi bi t s t hem f r om par t i ci pat i ng f ul l y i n our soci et y, whi ch i s pr eci sel y t he t ype of segr egat i on t hat t he Four t eent h Amendment cannot count enance. AFFI RMED Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 63 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (138 of 518) NI EMEYER, Ci r cui t J udge, di ssent i ng: To be cl ear , t hi s case i s not about whet her cour t s f avor or di sf avor same- sex mar r i age, or whet her St at es r ecogni zi ng or decl i ni ng t o r ecogni ze same- sex mar r i age have made good pol i cy deci si ons. I t i s much nar r ower . I t i s about whet her a St at e s deci si on not t o r ecogni ze same- sex mar r i age vi ol at es t he Four t eent h Amendment of t he U. S. Const i t ut i on. Thus, t he j udi ci al r esponse must be l i mi t ed t o an anal ysi s appl yi ng est abl i shed const i t ut i onal pr i nci pl es. The Commonweal t h of Vi r gi ni a has al ways r ecogni zed t hat mar r i age i s based on t he mut ual agr eement of a man and a woman t o mar r y each ot her , Bur ke v. Shaver , 23 S. E. 749, 749 ( Va. 1895) , and t hat a mar r i age s pur poses i ncl ude est abl i shi ng a f ami l y, t he cont i nuance of t he r ace, t he pr opagat i on of chi l dr en, and t he gener al good of soci et y, Al exander v. Kuykendal l , 63 S. E. 2d 746, 748 ( Va. 1951) . I n r ecent year s, i t codi f i ed t hat under st andi ng i n sever al st at ut es, whi ch al so expl i ci t l y excl ude f r om t he def i ni t i on of mar r i age t he uni on of t wo men or t wo women. Mor eover , i n 2006 t he peopl e of Vi r gi ni a amended t he Commonweal t h s Const i t ut i on t o def i ne mar r i age as onl y bet ween one man and one woman. Va. Const . ar t . I , 15- A. The pl ai nt i f f s, who ar e i n l ong- t er m same- sex r el at i onshi ps, ar e chal l engi ng t he const i t ut i onal i t y of Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 64 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (139 of 518) 65
Vi r gi ni a s mar r i age l aws under t he Due Pr ocess and Equal Pr ot ect i on Cl auses of t he U. S. Const i t ut i on. The di st r i ct cour t sust ai ned t hei r chal l enge, concl udi ng t hat t he pl ai nt i f f s have a f undament al r i ght t o mar r y each ot her under t he Due Pr ocess Cl ause of t he Four t eent h Amendment and t her ef or e t hat any r egul at i on of t hat r i ght i s subj ect t o st r i ct scr ut i ny. Concl udi ng t hat Vi r gi ni a s def i ni t i on of mar r i age f ai l ed even t o di spl ay a r at i onal r el at i onshi p t o a l egi t i mat e pur pose and so must be vi ewed as const i t ut i onal l y i nf i r m, t he cour t st r uck down Vi r gi ni a s mar r i age l aws as unconst i t ut i onal and enj oi ned t hei r enf or cement . Bost i c v. Rai ney, 970 F. Supp. 2d 456, 482 ( E. D. Va. 2014) . The maj or i t y agr ees. I t concl udes t hat t he f undament al r i ght t o mar r i age i ncl udes a r i ght t o same- sex mar r i age and t hat t her ef or e Vi r gi ni a s mar r i age l aws must be r evi ewed under st r i ct scr ut i ny. I t hol ds t hat Vi r gi ni a has f ai l ed t o advance a compel l i ng st at e i nt er est j ust i f yi ng i t s def i ni t i on of mar r i age as bet ween onl y a man and a woman. I n r eachi ng t hi s concl usi on, however , t he maj or i t y has f ai l ed t o conduct t he necessar y const i t ut i onal anal ysi s. Rat her , i t has si mpl y decl ar ed syl l ogi st i cal l y t hat because mar r i age i s a f undament al r i ght pr ot ect ed by t he Due Pr ocess Cl ause and same- sex mar r i age i s a f or m of mar r i age, Vi r gi ni a s l aws decl i ni ng t o r ecogni ze same- Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 65 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (140 of 518) 66
sex mar r i age i nf r i nge t he f undament al r i ght t o mar r i age and ar e t her ef or e unconst i t ut i onal . St at ed mor e par t i cul ar l y, t he maj or i t y s appr oach begi ns wi t h t he par t i es agr eement t hat mar r i age i s a f undament al r i ght . Ant e at 40. Fr om t her e, t he maj or i t y moves t o t he pr oposi t i on t hat t he r i ght t o mar r y i s an expansi ve l i ber t y i nt er est , ant e at 41, t hat i s not ci r cumscr i bed based on t he char act er i st i cs of t he i ndi vi dual s seeki ng t o exer ci se t hat r i ght , ant e at 42- 43. For suppor t , i t not es t hat t he Supr eme Cour t has st r uck down st at e r est r i ct i ons pr ohi bi t i ng i nt er r aci al mar r i age, see Lovi ng v. Vi r gi ni a, 388 U. S. 1 ( 1967) ; pr ohi bi t i ng pr i son i nmat es f r om mar r yi ng wi t hout speci al appr oval , see Tur ner v. Saf l ey, 482 U. S. 78 ( 1987) ; and pr ohi bi t i ng per sons owi ng chi l d suppor t f r om mar r yi ng, see Zabl ocki v. Redhai l , 434 U. S. 374 ( 1978) . I t t hen decl ar es, i pse di xi t , t hat t he f undament al r i ght t o mar r y encompasses t he r i ght t o same- sex mar r i age and i s t hus pr ot ect ed by t he subst ant i ve component of t he Due Pr ocess Cl ause. Ant e at 41. I n r eachi ng t hi s concl usi on, t he maj or i t y decl i ne[ s] t he Pr oponent s i nvi t at i on t o char act er i ze t he r i ght at i ssue i n t hi s case as t he r i ght t o same- sex mar r i age r at her t han si mpl y t he r i ght t o mar r y. Ant e at 44. And i n doi ng so, i t expl i ci t l y bypasses t he r el evant const i t ut i onal anal ysi s r equi r ed by Washi ngt on v. Gl ucksber g, 521 U. S. 702 ( 1997) , st at i ng t hat a Gl ucksber g anal ysi s i s not Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 66 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (141 of 518) 67
necessar y because no new f undament al r i ght i s bei ng r ecogni zed. Ant e at 41- 42. Thi s anal ysi s i s f undament al l y f l awed because i t f ai l s t o t ake i nt o account t hat t he mar r i age t hat has l ong been r ecogni zed by t he Supr eme Cour t as a f undament al r i ght i s di st i nct f r om t he newl y pr oposed r el at i onshi p of a same- sex mar r i age. And t hi s f ai l ur e i s even mor e pr onounced by t he maj or i t y s acknowl edgment t hat same- sex mar r i age i s a new not i on t hat has not been r ecogni zed f or most of our count r y s hi st or y. Ant e at 41. Mor eover , t he maj or i t y f ai l s t o expl ai n how t hi s new not i on became i ncor por at ed i nt o t he t r adi t i onal def i ni t i on of mar r i age except by l i ngui st i c mani pul at i on. Thus, t he maj or i t y never asks t he quest i on necessar y t o f i ndi ng a f undament al r i ght - - whet her same- sex mar r i age i s a r i ght t hat i s deepl y r oot ed i n t hi s Nat i on s hi st or y and t r adi t i on and i mpl i ci t i n t he concept of or der ed l i ber t y, such t hat nei t her l i ber t y nor j ust i ce woul d exi st i f [ i t was] sacr i f i ced. Gl ucksber g, 521 U. S. at 721 ( quot i ng Moor e v. East Cl evel and, 431 U. S. 494, 503 ( 1977) ( pl ur al i t y opi ni on) ; Pal ko v. Connect i cut , 302 U. S. 319, 325- 26 ( 1937) ) ( i nt er nal quot at i on mar ks omi t t ed) . At bot t om, i n hol di ng t hat same- sex mar r i age i s encompassed by t he t r adi t i onal r i ght t o mar r y, t he maj or i t y avoi ds t he necessar y const i t ut i onal anal ysi s, concl udi ng si mpl y and br oadl y Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 67 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (142 of 518) 68
t hat t he f undament al r i ght t o mar r y - - by ever yone and t o anyone - - may not be i nf r i nged. And i t does not ant i ci pat e or addr ess t he pr obl ems t hat t hi s appr oach causes, f ai l i ng t o expl ai n, f or exampl e, why t hi s br oad r i ght t o mar r y, as t he maj or i t y def i nes i t , does not al so encompass t he r i ght of a f at her t o mar r y hi s daught er or t he r i ght of any per son t o mar r y mul t i pl e par t ner s. I f t he maj or i t y wer e t o r ecogni ze and addr ess t he di st i nct i on bet ween t he t wo r el at i onshi ps - - t he t r adi t i onal one and t he new one - - as i t must , i t woul d si mpl y be unabl e t o r each t he concl usi on t hat i t has r eached. I r espect f ul l y submi t t hat , f or t he r easons t hat f ol l ow, Vi r gi ni a was wel l wi t hi n i t s const i t ut i onal aut hor i t y t o adher e t o i t s t r adi t i onal def i ni t i on of mar r i age as t he uni on of a man and a woman and t o excl ude f r omt hat def i ni t i on t he uni on of t wo men or t wo women. I woul d al so agr ee t hat t he U. S. Const i t ut i on does not pr ohi bi t a St at e f r om def i ni ng mar r i age t o i ncl ude same- sex mar r i age, as many St at es have done. Accor di ngl y, I woul d r ever se t he j udgment of t he di st r i ct cour t and uphol d Vi r gi ni a s mar r i age l aws.
I
As t he maj or i t y has obser ved, st at e r ecogni t i on of same- sex mar r i age i s a new phenomenon. I t s hi st or y began i n t he ear l y Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 68 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (143 of 518) 69
2000s wi t h t he r ecogni t i on i n some St at es of ci vi l uni ons. See, e. g. , Vt . St at . Ann. t i t . 15, 1201- 1202 ( 2000) ; D. C. Code 32- 701 ( 1992) ( ef f ect i ve i n 2002) ; Cal . Fam. Code 297- 298 ( 2003) ; N. J . St at . Ann. 26: 8A- 2 ( 2003) ; Conn. Gen. St at . Ann. 46b- 38nn ( 2006) , i nval i dat ed by Ker r i gan v. Comm r of Pub. Heal t h, 957 A. 2d 407 ( Conn. 2008) . And t he not i on of same- sex mar r i age i t sel f f i r st gai ned t r act i on i n 2003, when t he Massachuset t s Supr eme J udi ci al Cour t hel d t hat t he Commonweal t h s pr ohi bi t i on on i ssui ng mar r i age l i censes t o same- sex coupl es vi ol at ed t he St at e s Const i t ut i on - - t he f i r st deci si on hol di ng t hat same- sex coupl es had a r i ght t o mar r y. See Goodr i dge v. Dep t of Pub. Heal t h, 798 N. E. 2d 941, 968 ( Mass. 2003) . I n 2009, Ver mont became t he f i r st St at e t o enact l egi sl at i on r ecogni zi ng same- sex mar r i age, and, si nce t hen, 11 ot her St at es and t he Di st r i ct of Col umbi a have al so done so. See Conn. Gen. St at . 46b- 20 t o 46b- 20a; Del . Code Ann. t i t . 13, 101; D. C. Code 46- 401; Haw. Rev. St at . 572- 1; 750 I l l . Comp. St at . 5/ 201; Me. Rev. St at . t i t . 19- A, 650- A; Md. Code Ann. , Fam. Law 2- 201 t o 2- 202; Mi nn. St at . Ann. 517. 01 t o 517. 03; N. H. Rev. St at . Ann. 457: 1- a t o 457: 2; N. Y. Dom. Rel . Law 10- a; R. I . Gen. Laws 15- 1- 1 et seq. ; Vt . St at . Ann. t i t . 15, 8; Wash. Rev. Code 26. 04. 010 t o 26. 04. 020. Mor eover , seven ot her St at es cur r ent l y al l ow same- sex mar r i age as a r esul t of cour t r ul i ngs. See Hol l i ngswor t h v. Per r y, 133 S. Ct . 2652 Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 69 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (144 of 518) 70
( 2013) ; Var num v. Br i en, 763 N. W. 2d 862 ( I owa 2009) ; Goodr i dge, 798 N. E. 2d 941; Gar den St at e Equal i t y v. Dow, 79 A. 3d 1036 ( N. J . 2013) ; Gr i ego v. Ol i ver , 316 P. 3d 865 ( N. M. 2013) ; Gei ger v. Ki t zhaber , ___ F. Supp. 2d ___, No. 6: 13- CV- 01834- MC, 2014 WL 2054264 ( D. Or . May 19, 2014) ; Whi t ewood v. Wol f , ___ F. Supp. 2d ___, No. 1: 13- CV- 1861, 2014 WL 2058105 ( M. D. Pa. May 20, 2014) . Thi s i s i ndeed a r ecent phenomenon. Vi r gi ni a onl y r ecogni zes mar r i age as bet ween one man and one woman, and, l i ke a maj or i t y of St at es, i t has codi f i ed t hi s vi ew. See Va. Code Ann. 20- 45. 2 ( pr ohi bi t i ng same- sex mar r i age and decl i ni ng t o r ecogni ze same- sex mar r i ages conduct ed i n ot her St at es) ; i d. 20- 45. 3 ( pr ohi bi t i ng ci vi l uni ons and si mi l ar ar r angement s bet ween per sons of t he same sex) . The bi l l or i gi nal l y pr oposi ng what woul d become 20- 45. 3 not ed t he basi s f or Vi r gi ni a s l egi sl at i ve deci si on: [ H] uman mar r i age i s a consummat ed t wo i n one communi on of mal e and f emal e per sons made possi bl e by sexual di f f er ences whi ch ar e r epr oduct i ve i n t ype, whet her or not t hey ar e r epr oduct i ve i n ef f ect or mot i vat i on. Thi s pr esent r el at i onshi p r ecogni zes t he equal i t y of mal e and f emal e per sons, and ant edat es r ecor ded hi st or y. Af f i r mat i on of Mar r i age Act , H. D. 751, 2004 Gen. Assembl y, Reg. Sess. ( Va. 2004) . The bi l l pr edi ct ed t hat t he r ecogni t i on of same- sex mar r i age woul d r adi cal l y t r ansf or m t he i nst i t ut i on of mar r i age wi t h ser i ous and har mf ul consequences t o t he soci al or der . I d. Vi r gi ni a al so amended i t s Const i t ut i on i n 2006 t o Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 70 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (145 of 518) 71
def i ne mar r i age as onl y bet ween one man and one woman and t o pr ohi bi t a l egal st at us f or r el at i onshi ps of unmar r i ed i ndi vi dual s t hat i nt ends t o appr oxi mat e t he desi gn, qual i t i es, si gni f i cance, or ef f ect s of mar r i age. Va. Const . ar t . I , 15- A. The pl ai nt i f f s commenced t hi s act i on t o chal l enge t he const i t ut i onal i t y of Vi r gi ni a s mar r i age l aws. Pl ai nt i f f s Ti mot hy B. Bost i c and Tony C. London have l i ved i n a commi t t ed same- sex r el at i onshi p si nce 1989 and have l i ved i n Vi r gi ni a si nce 1991. The t wo desi r ed t o mar r y i n Vi r gi ni a, and on J ul y 1, 2013, when t hey appl i ed f or a mar r i age l i cense at t he of f i ce of t he Cl er k of t he Ci r cui t Cour t f or t he Ci t y of Nor f ol k, t hey wer e deni ed a l i cense and t ol d t hat same- sex coupl es ar e i nel i gi bl e t o mar r y i n Vi r gi ni a. I n t hei r compl ai nt chal l engi ng Vi r gi ni a s mar r i age l aws, t hey al l eged t hat t hei r i nabi l i t y t o mar r y has di sadvant aged t hem i n bot h economi c and per sonal ways - - i t has pr event ed t hem f r om f i l i ng j oi nt t ax r et ur ns, kept t hem f r om shar i ng heal t h i nsur ance on a t ax- f r ee basi s, and si gnal ed t hat t hey ar e l ess t han ot her coupl es i n Vi r gi ni a. Pl ai nt i f f s Car ol Schal l and Mar y Townl ey l i kewi se have l i ved i n a commi t t ed same- sex r el at i onshi p si nce 1985 and have l i ved i n Vi r gi ni a t hr oughout t hei r 29- year r el at i onshi p. I n 1998, Townl ey gave bi r t h t o a daught er , E. S. - T. , whomSchal l and Townl ey have r ai sed t oget her , and i n 2008, t he t wo t r avel ed t o Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 71 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (146 of 518) 72
Cal i f or ni a wher e t hey wer e l awf ul l y mar r i ed. They al l eged i n t hei r compl ai nt t hat because Vi r gi ni a does not r ecogni ze t hei r mar r i age as val i d, t hey have been i nj ur ed i n sever al ways. Schal l i s unabl e t o l egal l y adopt E. S. - T. , and t he t wo ar e unabl e t o shar e heal t h i nsur ance on a t ax- f r ee basi s. The t wo al so cl ai med t hat t hey and E. S. - T. have exper i enced st i gma as a r esul t of Vi r gi ni a s nonr ecogni t i on of t hei r mar r i age. The pl ai nt i f f s compl ai nt , f i l ed i n J ul y 2013, al l eged t hat Vi r gi ni a s mar r i age l aws vi ol at e t hei r const i t ut i onal r i ght s under t he Due Pr ocess and Equal Pr ot ect i on Cl auses of t he Four t eent h Amendment . They named as def endant s Geor ge E. Schaef er , I I I , Cl er k of Cour t f or t he Nor f ol k Ci r cui t Cour t , and J anet M. Rai ney, t he St at e Regi st r ar of Vi t al Recor ds. A t hi r d Vi r gi ni a of f i ci al , Mi chl e B. McQui gg, Cl er k of Cour t f or t he Pr i nce Wi l l i am Count y Ci r cui t Cour t , was per mi t t ed t o i nt er vene as a def endant . As el ect ed ci r cui t cour t cl er ks, Schaef er and McQui gg ar e r esponsi bl e f or i ssui ng i ndi vi dual mar r i age l i censes i n t he l ocal i t i es i n whi ch t hey ser ve. And Rai ney, as t he St at e Regi st r ar of Vi t al Recor ds, i s r esponsi bl e f or ensur i ng compl i ance wi t h Vi r gi ni a s mar r i age l aws, i ncl udi ng t he l aws chal l enged i n t hi s case. Af t er t he par t i es f i l ed cr oss- mot i ons f or summar y j udgment , Vi r gi ni a under went a change i n admi ni st r at i ons, and t he newl y el ect ed At t or ney Gener al of Vi r gi ni a, Mar k Her r i ng, f i l ed a Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 72 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (147 of 518) 73
not i ce of a change i n hi s of f i ce s l egal posi t i on on behal f of hi s cl i ent , def endant J anet Rai ney. Hi s not i ce st at ed t hat because, i n hi s vi ew, t he l aws at i ssue wer e unconst i t ut i onal , hi s of f i ce woul d no l onger def end t hem on behal f of Rai ney. He not ed, however , t hat Rai ney woul d cont i nue t o enf or ce t he l aws unt i l t he cour t s r ul i ng. The ot her of f i ci al s have cont i nued t o def end Vi r gi ni a s mar r i age l aws, and, f or conveni ence, I r ef er t o t he def endant s her ei n as Vi r gi ni a. Fol l owi ng a hear i ng, t he di st r i ct cour t , by an or der and memor andum dat ed Febr uar y 14, 2014, gr ant ed t he pl ai nt i f f s mot i on f or summar y j udgment and deni ed Vi r gi ni a s cr oss- mot i on. The cour t concl uded t hat same- sex par t ner s have a f undament al r i ght t o mar r y each ot her under t he Due Pr ocess Cl ause of t he Four t eent h Amendment , t hus r equi r i ng t hat Vi r gi ni a s mar r i age l aws r est r i ct i ng t hat r i ght be nar r owl y dr awn t o f ur t her a compel l i ng st at e i nt er est . I t concl uded t hat t he l aws di d not meet t hat r equi r ement and, i ndeed, f ai l [ ed] t o di spl ay a r at i onal r el at i onshi p t o a l egi t i mat e pur pose, and so must be vi ewed as const i t ut i onal l y i nf i r m under even t he l east oner ous l evel of scr ut i ny. Bost i c, 970 F. Supp. 2d at 482. St r i ki ng down Vi r gi ni a s mar r i age l aws, t he cour t al so i ssued an or der enj oi ni ng t hei r enf or cement but st ayed t hat or der pendi ng appeal . Thi s appeal f ol l owed.
The pl ai nt i f f s cont end t hat , as same- sex par t ner s, t hey have a f undament al r i ght t o mar r y t hat i s pr ot ect ed by t he subst ant i ve component of t he Due Pr ocess Cl ause of t he U. S. Const i t ut i on, U. S. Const . amend. XI V, 1 ( pr ohi bi t i ng any St at e f r om depr i vi ng any per son of l i f e, l i ber t y, or pr oper t y, wi t hout due pr ocess of l aw) , and t hat Vi r gi ni a s l aws def i ni ng mar r i age as onl y bet ween a man and a woman and excl udi ng same- sex mar r i age i nf r i nge on t hat r i ght . The const i t ut i onal anal ysi s f or adj udgi ng t hei r cl ai mi s wel l est abl i shed. The Const i t ut i on cont ai ns no l anguage di r ect l y pr ot ect i ng t he r i ght t o same- sex mar r i age or even t r adi t i onal mar r i age. Any r i ght t o same- sex mar r i age, t her ef or e, woul d have t o be f ound, t hr ough cour t i nt er pr et at i on, as a subst ant i ve component of t he Due Pr ocess Cl ause. See Pl anned Par ent hood of Sout heast er n Pa. v. Casey, 505 U. S. 833, 846 ( 1992) ( Al t hough a l i t er al r eadi ng of t he Cl ause mi ght suggest t hat i t gover ns onl y t he pr ocedur es by whi ch a St at e may depr i ve per sons of l i ber t y, f or at l east 105 year s . . . t he Cl ause has been under st ood t o cont ai n a subst ant i ve component as wel l ) . The subst ant i ve component of t he Due Pr ocess Cl ause onl y pr ot ect s f undament al l i ber t y i nt er est s. And t he Supr eme Cour t has hel d t hat l i ber t y i nt er est s ar e onl y f undament al i f t hey ar e, obj ect i vel y, deepl y r oot ed i n t hi s Nat i on s hi st or y and Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 74 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (149 of 518) 75
t r adi t i on, and i mpl i ci t i n t he concept of or der ed l i ber t y, such t hat nei t her l i ber t y nor j ust i ce woul d exi st i f t hey wer e sacr i f i ced. Gl ucksber g, 521 U. S. at 720- 21 ( ci t at i on omi t t ed) ( quot i ng Moor e, 431 U. S. at 503 ( pl ur al i t y opi ni on) ; Pal ko, 302 U. S. at 325- 26) . When det er mi ni ng whet her such a f undament al r i ght exi st s, a cour t must al ways make a car ef ul descr i pt i on of t he asser t ed f undament al l i ber t y i nt er est . I d. at 721 ( emphasi s added) ( quot i ng Reno v. Fl or es, 507 U. S. 292, 302 ( 1993) ) . Thi s car ef ul descr i pt i on i nvol ves char act er i zi ng t he r i ght asser t ed i n i t s nar r owest t er ms. Thus, i n Gl ucksber g, wher e t he Cour t was pr esent ed wi t h a due pr ocess chal l enge t o a st at e st at ut e banni ng assi st ed sui ci de, t he Cour t nar r owl y char act er i zed t he r i ght bei ng asser t ed i n t he f ol l owi ng manner : The Cour t of Appeal s st at ed t hat [ p] r oper l y anal yzed, t he f i r st i ssue t o be r esol ved i s whet her t her e i s a l i ber t y i nt er est i n det er mi ni ng t he t i me and manner of one s deat h, or , i n ot her wor ds, [ i ] s t her e a r i ght t o di e? Si mi l ar l y, r espondent s asser t a l i ber t y t o choose how t o di e and a r i ght t o cont r ol of one s f i nal days, and descr i be t he asser t ed l i ber t y as t he r i ght t o choose a humane, di gni f i ed deat h, and t he l i ber t y t o shape deat h. As not ed above, we have a t r adi t i on of car ef ul l y f or mul at i ng t he i nt er est at st ake i n subst ant i ve- due- pr ocess cases. . . . The Washi ngt on st at ut e at i ssue i n t hi s case pr ohi bi t s ai d[ i ng] anot her per son t o at t empt sui ci de, and, t hus, t he quest i on bef or e us i s whet her t he l i ber t y speci al l y pr ot ect ed by t he Due Pr ocess Cl ause i ncl udes a r i ght t o commi t sui ci de whi ch i t sel f i ncl udes a r i ght t o assi st ance i n doi ng so.
Gl ucksber g, 521 U. S. at 722- 23 ( al t er at i ons i n or i gi nal ) ( emphasi s added) ( ci t at i ons omi t t ed) . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 75 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (150 of 518) 76
Under t hi s f or mul at i on, because t he Vi r gi ni a l aws at i ssue pr ohi bi t mar r i age bet ween per sons of t he same sex, Va. Code Ann. 20- 45. 2, t he quest i on bef or e us i s whet her t he l i ber t y speci al l y pr ot ect ed by t he Due Pr ocess Cl ause i ncl udes a r i ght t o same- sex mar r i age. Gl ucksber g, 521 U. S. at 723; see al so J ackson v. Aber cr ombi e, 884 F. Supp. 2d 1065, 1095 ( D. Haw. 2012) ( [ M] i ssi ng f r om Pl ai nt i f f s asser t ed r i ght t o mar r y t he per son of one s choi ce i s i t s cent er pi ece: t he r i ght t o mar r y someone of t he same gender ) . When a f undament al r i ght i s so i dent i f i ed, t hen any st at ut e r est r i ct i ng t he r i ght i s subj ect t o st r i ct scr ut i ny and must be nar r owl y t ai l or ed t o ser ve a compel l i ng st at e i nt er est . Fl or es, 507 U. S. at 302. Such scr ut i ny i s ext r emel y di f f i cul t f or a l aw t o wi t hst and, and, as such, t he Supr eme Cour t has not ed t hat cour t s must be ext r emel y caut i ous i n r ecogni zi ng f undament al r i ght s because doi ng so or di nar i l y r emoves f r eedom of choi ce f r omt he hands of t he peopl e: [ W] e ha[ ve] al ways been r el uct ant t o expand t he concept of subst ant i ve due pr ocess because gui depost s f or r esponsi bl e deci si onmaki ng i n t hi s unchar t er ed ar ea ar e scar ce and open- ended. By ext endi ng const i t ut i onal pr ot ect i on t o an asser t ed r i ght or l i ber t y i nt er est , we, t o a gr eat ext ent , pl ace t he mat t er out si de t he ar ena of publ i c debat e and l egi sl at i ve act i on. We must t her ef or e exer ci se t he ut most car e whenever we ar e asked t o br eak new gr ound i n t hi s f i el d, l est t he l i ber t y pr ot ect ed by t he Due Pr ocess Cl ause be subt l y t r ansf or med i nt o t he pol i cy pr ef er ences of t he Member s of t hi s Cour t .
Gl ucksber g, 521 U. S. at 720 ( second al t er at i on i n or i gi nal ) ( emphasi s added) ( quot i ng Col l i ns v. Ci t y of Har ker Hei ght s, 503 U. S. 115, 125 ( 1992) ) . The pl ai nt i f f s i n t hi s case, as wel l as t he maj or i t y, r ecogni ze t hat nar r owl y def i ni ng t he asser t ed l i ber t y i nt er est woul d r equi r e t hem t o demonst r at e a new f undament al r i ght t o same- sex mar r i age, whi ch t hey cannot do. Thus, t hey have made no at t empt t o ar gue t hat same- sex mar r i age i s, obj ect i vel y, deepl y r oot ed i n t hi s Nat i on s hi st or y and t r adi t i on, and i mpl i ci t i n t he concept of or der ed l i ber t y. Gl ucksber g, 521 U. S. at 720- 21 ( i nt er nal quot at i on mar ks omi t t ed) . I ndeed, t hey have acknowl edged t hat r ecogni t i on of same- sex mar r i age i s a r ecent devel opment . See ant e at 41; see al so Uni t ed St at es v. Wi ndsor , 133 S. Ct . 2675, 2689 ( 2013) ( Unt i l r ecent year s, many ci t i zens had not even consi der ed t he possi bi l i t y of [ same- sex mar r i age] ( emphasi s added) ) ; i d. at 2715 ( Al i t o, J . , di ssent i ng) ( not i ng t hat i t i s beyond di sput e t hat t he r i ght t o same- sex mar r i age i s not deepl y r oot ed i n t hi s Nat i on s hi st or y and t r adi t i on) ; Baehr v. Lewi n, 852 P. 2d 44, 57 ( Haw. 1993) ( [ W] e do not bel i eve t hat a r i ght t o same- sex mar r i age i s so r oot ed i n t he t r adi t i ons and col l ect i ve consci ence of our peopl e t hat f ai l ur e t o r ecogni ze i t woul d vi ol at e t he f undament al pr i nci pl es of l i ber t y and j ust i ce t hat l i e at t he base of al l our ci vi l and pol i t i cal i nst i t ut i ons) . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 77 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (152 of 518) 78
I nst ead, t he pl ai nt i f f s and t he maj or i t y ar gue t hat t he f undament al r i ght t o mar r i age t hat has pr evi ousl y been r ecogni zed by t he Supr eme Cour t i s a br oad r i ght t hat shoul d appl y t o t he pl ai nt i f f s wi t hout t he need t o r ecogni ze a new f undament al r i ght t o same- sex mar r i age. They ar gue t hat t hi s appr oach i s suppor t ed by t he f act t hat t he Supr eme Cour t di d not nar r owl y def i ne t he r i ght t o mar r i age i n i t s deci si ons i n Lovi ng, 388 U. S. at 12; Tur ner , 482 U. S. at 94- 96; or Zabl ocki , 434 U. S. at 383- 86. I t i s t r ue t hat , i n t hose cases, t he Cour t di d not r ecogni ze new, separ at e f undament al r i ght s t o f i t t he f act ual ci r cumst ances i n each case. For exampl e, i n Lovi ng, t he Cour t di d not exami ne whet her i nt er r aci al mar r i age was, obj ect i vel y, deepl y r oot ed i n our Nat i on s hi st or y and t r adi t i on. But i t was not r equi r ed t o do so. Each of t hose cases i nvol ved a coupl e asser t i ng a r i ght t o ent er i nt o a t r adi t i onal mar r i age of t he t ype t hat has al ways been r ecogni zed si nce t he begi nni ng of t he Nat i on - - a uni on bet ween one man and one woman. Whi l e t he cont ext f or asser t i ng t he r i ght var i ed i n each of t hose cases, i t var i ed onl y i n ways i r r el evant t o t he concept of mar r i age. The t ype of r el at i onshi p sought was al ways t he t r adi t i onal , man- woman r el at i onshi p t o whi ch t he t er m mar r i age was t her et of or e al ways assumed t o r ef er . Thus, none of t he cases ci t ed by t he pl ai nt i f f s and r el i ed on by t he maj or i t y i nvol ved t he asser t i on Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 78 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (153 of 518) 79
of a br and new l i ber t y i nt er est . To t he cont r ar y, t hey i nvol ved t he asser t i on of one of t he ol dest and most f undament al l i ber t y i nt er est s i n our soci et y. To now def i ne t he pr evi ousl y r ecogni zed f undament al r i ght t o mar r i age as a concept t hat i ncl udes t he new not i on of same- sex mar r i age amount s t o a di ct i onar y j ur i spr udence, whi ch def i nes t er ms as conveni ent t o at t ai n an end. I t i s t r ue t hat same- sex and opposi t e- sex r el at i onshi ps shar e many at t r i but es, and, t her ef or e, mar r i ages i nvol vi ng t hose r el at i onshi ps woul d, t o a subst ant i al ext ent , be si mi l ar . Two per sons who ar e at t r act ed t o each ot her physi cal l y and emot i onal l y and who l ove each ot her coul d publ i cl y pr omi se t o l i ve wi t h each ot her t her eaf t er i n a mut ual l y desi r abl e r el at i onshi p. These aspect s ar e t he same whet her t he per sons ar e of t he same sex or di f f er ent sexes. Mor eover , bot h r el at i onshi ps coul d successf ul l y f unct i on t o r ai se chi l dr en, al t hough chi l dr en i n a same- sex r el at i onshi p woul d come f r om one par t ner or f r om adopt i on. But t her e ar e al so si gni f i cant di st i nct i ons bet ween t he r el at i onshi ps t hat can j ust i f y di f f er ent i al t r eat ment by l awmaker s. Onl y t he uni on of a man and a woman has t he capaci t y t o pr oduce chi l dr en and t hus t o car r y on t he speci es. And mor e i mpor t ant l y, onl y such a uni on cr eat es a bi ol ogi cal f ami l y uni t t hat al so gi ves r i se t o a t r adi t i onal l y st abl e pol i t i cal uni t . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 79 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (154 of 518) 80
Ever y per son s i dent i t y i ncl udes t he per son s par t i cul ar bi ol ogi cal r el at i onshi ps, whi ch cr eat e uni que and meani ngf ul bonds of ki nshi p t hat ar e ext r aor di nar i l y st r ong and endur i ng and t hat have been af f or ded a pr i vi l eged pl ace i n pol i t i cal or der t hr oughout human hi st or y. Soci et i es have accor di ngl y enact ed l aws pr omot i ng t he f ami l y uni t - - such as t hose r el at i ng t o sexual engagement , mar r i age r i t es, di vor ce, i nher i t ance, name and t i t l e, and economi c mat t er s. And many soci et i es have f ound f ami l i al bonds so cr i t i cal t hat t hey have el evat ed mar r i age t o be a sacr ed i nst i t ut i on t r apped wi t h r el i gi ous r i t ual s. I n t hese r espect s, t he t r adi t i onal man- woman r el at i onshi p i s uni que. Thus, when t he Supr eme Cour t has r ecogni zed, t hr ough t he year s, t hat t he r i ght t o mar r y i s a f undament al r i ght , i t has emphasi zed t he pr ocr eat i ve and soci al or der i ng aspect s of t r adi t i onal mar r i age. For exampl e, i t has sai d: [ Mar r i age] i s an i nst i t ut i on, i n t he mai nt enance of whi ch i n i t s pur i t y t he publ i c i s deepl y i nt er est ed, f or i t i s t he f oundat i on of t he f ami l y and of soci et y, wi t hout whi ch t her e woul d be nei t her ci vi l i zat i on nor pr ogr ess, Maynar d v. Hi l l , 125 U. S. 190, 211 ( 1888) ( emphasi s added) ; Mar r i age i s one of t he basi c ci vi l r i ght s of man. Mar r i age and pr ocr eat i on ar e f undament al t o t he ver y exi st ence and sur vi val of t he r ace, Ski nner v. Okl ahoma ex r el . Wi l l i amson, 316 U. S. 535, 541 ( 1942) ; I t i s not sur pr i si ng Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 80 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (155 of 518) 81
t hat t he deci si on t o mar r y has been pl aced on t he same l evel of i mpor t ance as deci si ons r el at i ng t o pr ocr eat i on, chi l dbi r t h, chi l dr ear i ng, and f ami l y r el at i onshi ps. . . . [ Mar r i age] i s t he f oundat i on of t he f ami l y i n our soci et y, Zabl ocki , 434 U. S. at 386. Because t her e exi st deep, f undament al di f f er ences bet ween t r adi t i onal and same- sex mar r i age, t he pl ai nt i f f s and t he maj or i t y er r by conf l at i ng t he t wo r el at i onshi ps under t he l oosel y dr awn r ubr i c of t he r i ght t o mar r i age. Rat her , t o obt ai n const i t ut i onal pr ot ect i on, t hey woul d have t o show t hat t he r i ght t o same- sex mar r i age i s i t sel f deepl y r oot ed i n our Nat i on s hi st or y. They have not at t empt ed t o do so and coul d not succeed i f t hey wer e so t o at t empt . I n an ef f or t t o br i dge t he obvi ous di f f er ences bet ween t he t r adi t i onal r el at i onshi p and t he new same- sex r el at i onshi p, t he pl ai nt i f f s ar gue t hat t he f undament al r i ght t o mar r i age has al ways been based on, and def i ned by, t he const i t ut i onal l i ber t y t o sel ect t he par t ner of one s choi ce. ( Emphasi s added) . They r el y heavi l y on Lovi ng t o asser t t hi s cl ai m. I n Lovi ng, t he Cour t hel d t hat a st at e r egul at i on r est r i ct i ng i nt er r aci al mar r i age i nf r i nged on t he f undament al r i ght t o mar r i age. Lovi ng, 388 U. S. at 12. But nowher e i n Lovi ng di d t he Cour t suggest t hat t he f undament al r i ght t o mar r y i ncl udes t he unr est r i ct ed r i ght t o mar r y whomever one chooses, as t he Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 81 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (156 of 518) 82
pl ai nt i f f s cl ai m. I ndeed, Lovi ng expl i ci t l y r el i ed on Ski nner and Mur phy, and bot h of t hose cases di scussed mar r i age i n t r adi t i onal , pr ocr eat i ve t er ms. I d. Thi s r eadi ng of Lovi ng i s f or t i f i ed by t he Cour t s summar y di smi ssal of Baker v. Nel son, 191 N. W. 2d 185 ( Mi nn. 1971) , appeal di smi ssed, 409 U. S. 810 ( 1972) , j ust f i ve year s af t er Lovi ng was deci ded. I n Baker , t he Mi nnesot a Supr eme Cour t i nt er pr et ed a st at e st at ut e s use of t he t er m mar r i age t o be one of common usage meani ng a uni on bet ween per sons of t he opposi t e sex and t hus not i ncl udi ng same- sex mar r i age. I d. at 186. On appeal , t he Supr eme Cour t di smi ssed t he case summar i l y f or want of a subst ant i al f eder al quest i on. 409 U. S. at 810. The Cour t s act i on i n cont ext i ndi cat es t hat t he Cour t di d not vi ew Lovi ng or t he cases t hat pr eceded i t as pr ovi di ng a f undament al r i ght t o an unr est r i ct ed choi ce of mar r i age par t ner . Ot her wi se, t he st at e cour t s deci si on i n Baker woul d i ndeed have pr esent ed a subst ant i al f eder al quest i on. I n shor t , Lovi ng si mpl y hel d t hat r ace, whi ch i s compl et el y unr el at ed t o t he i nst i t ut i on of mar r i age, coul d not be t he basi s of mar i t al r est r i ct i ons. See Lovi ng, 388 U. S. at 12. To st r et ch Lovi ng s hol di ng t o say t hat t he r i ght t o mar r y i s not l i mi t ed by gender and sexual or i ent at i on i s t o i gnor e t he i next r i cabl e, bi ol ogi cal l i nk bet ween mar r i age and pr ocr eat i on t hat t he Supr eme Cour t has al ways r ecogni zed. See Wi ndsor , 133 Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 82 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (157 of 518) 83
S. Ct . at 2689 ( r ecogni zi ng t hat t hr oughout hi st or y, mar r i age bet ween a man and a woman no doubt had been t hought of by most peopl e as essent i al t o t he ver y def i ni t i on of t hat t er m and t o i t s r ol e and f unct i on) . The st at e r egul at i on st r uck down i n Lovi ng, l i ke t hose i n Zabl ocki and Tur ner , had no r el at i onshi p t o t he f oundat i onal pur poses of mar r i age, whi l e t he gender of t he i ndi vi dual s i n a mar r i age cl ear l y does. Thus, t he maj or i t y er r s, as di d t he di st r i ct cour t , by i nt er pr et i ng t he Supr eme Cour t s mar r i age cases as est abl i shi ng a r i ght t hat i ncl udes same- sex mar r i age. The pl ai nt i f f s al so l ar gel y i gnor e t he pr obl em wi t h t hei r posi t i on t hat i f t he f undament al r i ght t o mar r i age i s based on t he const i t ut i onal l i ber t y t o sel ect t he par t ner of one s choi ce, as t hey cont end, t hen t hat l i ber t y woul d al so ext end t o i ndi vi dual s seeki ng st at e r ecogni t i on of ot her t ypes of r el at i onshi ps t hat St at es cur r ent l y r est r i ct , such as pol ygamous or i ncest uous r el at i onshi ps. Cf . Romer v. Evans, 517 U. S. 620, 648- 50 ( 1996) ( Scal i a, J . , di ssent i ng) . Such an ext ensi on woul d be a r adi cal shi f t i n our under st andi ng of mar i t al r el at i onshi ps. Laws r est r i ct i ng pol ygamy ar e f oundat i onal t o t he Uni on i t sel f , havi ng been a condi t i on on t he ent r ance of Ar i zona, New Mexi co, Okl ahoma, and Ut ah i nt o st at ehood. I d. Whi l e t he pl ai nt i f f s do at t empt t o assur e us t hat such l aws ar e saf e because t her e ar e wei ght y gover nment i nt er est s under l yi ng Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 83 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (158 of 518) 84
t hem, such an ar gument does not bear on t he quest i on of whet her t he r i ght i s f undament al . The gover nment s i nt er est s woul d i nst ead be r el evant onl y t o whet her t he r est r i ct i on coul d meet t he r equi si t e st andar d of r evi ew. And because l aws pr ohi bi t i ng pol ygamous or i ncest uous mar r i ages r est r i ct i ndi vi dual s r i ght t o choose whom t hey woul d l i ke t o mar r y, t hey woul d, under t he pl ai nt i f f s appr oach, have t o be exami ned under st r i ct scr ut i ny. Per haps t he gover nment s i nt er est woul d be st r ong enough t o enabl e such l aws t o sur vi ve st r i ct scr ut i ny, but r egar dl ess, t oday s deci si on woul d t r ul y be a sweepi ng one i f i t coul d be under st ood t o mean t hat i ndi vi dual s have a f undament al r i ght t o ent er i nt o a mar r i age wi t h any per son, or any peopl e, of t hei r choosi ng. At bot t om, t he f undament al r i ght t o mar r i age does not i ncl ude a r i ght t o same- sex mar r i age. Under t he Gl ucksber g anal ysi s t hat we ar e t hus bound t o conduct , t her e i s no new f undament al r i ght t o same- sex mar r i age. Vi r gi ni a s l aws r est r i ct i ng mar r i age t o man- woman r el at i onshi ps must t her ef or e be uphel d i f t her e i s any r at i onal basi s f or t he l aws.
I I I
Under r at i onal - basi s r evi ew, cour t s ar e r equi r ed t o gi ve heavy def er ence t o l egi sl at ur es. The st andar d si mpl y r equi r es cour t s t o det er mi ne whet her t he cl assi f i cat i on i n quest i on i s, at a mi ni mum, Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 84 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (159 of 518) 85
r at i onal l y r el at ed t o l egi t i mat e gover nment al goal s. I n ot her wor ds, t he f i t bet ween t he enact ment and t he publ i c pur poses behi nd i t need not be mat hemat i cal l y pr eci se. As l ong as [ t he l egi sl at ur e] has a r easonabl e basi s f or adopt i ng t he cl assi f i cat i on, whi ch can i ncl ude r at i onal specul at i on unsuppor t ed by evi dence or empi r i cal dat a, t he st at ut e wi l l pass const i t ut i onal must er . The r at i onal basi s st andar d t hus embodi es an i dea cr i t i cal t o t he cont i nui ng vi t al i t y of our democr acy: t hat cour t s ar e not empower ed t o si t as a super l egi sl at ur e t o j udge t he wi sdom or desi r abi l i t y of l egi sl at i ve pol i cy det er mi nat i ons. Wi l ki ns v. Gaddy, 734 F. 3d 344, 347- 48 ( 4t h Ci r . 2013) ( emphasi s added) ( ci t at i ons omi t t ed) ( quot i ng FCC v. Beach Commc ns, I nc. , 508 U. S. 307, 315 ( 1993) ; Ci t y of New Or l eans v. Dukes, 427 U. S. 297, 303 ( 1976) ) . St at ut es subj ect t o r at i onal - basi s r evi ew bear [ ] a st r ong pr esumpt i on of val i di t y, and t hose at t acki ng t he r at i onal i t y of t he l egi sl at i ve cl assi f i cat i on have t he bur den t o negat i ve ever y concei vabl e basi s whi ch mi ght suppor t [ t hem] . Beach Commc ns, 508 U. S. at 314- 15 ( emphasi s added) ( ci t at i on omi t t ed) ( quot i ng Lehnhausen v. Lake Shor e Aut o Par t s Co. , 410 U. S. 356, 364 ( 1973) ) . I n cont endi ng t hat t her e i s a r at i onal basi s f or i t s mar r i age l aws, Vi r gi ni a has emphasi zed t hat chi l dr en ar e bor n onl y t o one man and one woman and t hat mar r i age pr ovi des a f ami l y st r uct ur e by whi ch t o nour i sh and r ai se t hose chi l dr en. I t cl ai ms t hat a bi ol ogi cal f ami l y i s a mor e st abl e envi r onment , and i t r enounces any i nt er est i n encour agi ng same- sex mar r i age. I t ar gues t hat t he pur pose of i t s mar r i age l aws i s t o channel Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 85 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (160 of 518) 86
t he pr esumpt i ve pr ocr eat i ve pot ent i al of man- woman r el at i onshi ps i nt o endur i ng mar i t al uni ons so t hat i f any chi l dr en ar e bor n, t hey ar e mor e l i kel y t o be r ai sed i n st abl e f ami l y uni t s. ( Emphasi s omi t t ed) . Vi r gi ni a hi ghl i ght s especi al l y mar r i age s t endency t o pr omot e st abi l i t y i n t he event of unpl anned pr egnanci es, asser t i ng t hat i t has a compel l i ng i nt er est i n addr essi ng t he par t i cul ar concer ns associ at ed wi t h t he bi r t h of unpl anned chi l dr en. . . . [ C] hi l dr en bor n f r om unpl anned pr egnanci es wher e t hei r mot her and f at her ar e not mar r i ed t o each ot her ar e at si gni f i cant r i sk of bei ng r ai sed out si de st abl e f ami l y uni t s headed by t hei r mot her and f at her j oi nt l y. Vi r gi ni a st at es t hat i t s j ust i f i cat i ons f or pr omot i ng t r adi t i onal mar r i age al so expl ai n i t s l ack of i nt er est i n pr omot i ng same- sex mar r i age. I t mai nt ai ns t hat a t r adi t i onal mar r i age i s excl usi vel y [ an] opposi t e- sex i nst i t ut i on . . . i next r i cabl y l i nked t o pr ocr eat i on and bi ol ogi cal ki nshi p, Wi ndsor , 133 S. Ct . at 2718 ( Al i t o, J . , di ssent i ng) , and t hat same- sex mar r i age pr i or i t i zes t he emot i ons and sexual at t r act i ons of t he t wo par t ner s wi t hout any necessar y l i nk t o r epr oduct i on. I t asser t s t hat i t has no i nt er est i n l i censi ng adul t s l ove. The pl ai nt i f f s accept t hat f ami l y st abi l i t y i s a l egi t i mat e st at e goal , but t hey ar gue t hat l i censi ng same- sex r el at i onshi ps wi l l not bur den Vi r gi ni a s achi evement of t hat goal . They Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 86 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (161 of 518) 87
cont end t hat t her e i s si mpl y no evi dence or r eason t o bel i eve t hat pr ohi bi t i ng gay men and l esbi ans f r om mar r yi ng wi l l i ncr ease r esponsi bl e pr ocr eat i on among het er osexual s. But t hi s ar gument does not negat e any of t he r at i onal j ust i f i cat i ons f or Vi r gi ni a s l egi sl at i on. St at es ar e per mi t t ed t o sel ect i vel y pr ovi de benef i t s t o onl y cer t ai n gr oups when pr ovi di ng t hose same benef i t s t o ot her gr oups woul d not f ur t her t he St at e s ul t i mat e goal s. See J ohnson v. Robi nson, 415 U. S. 361, 383 ( 1974) ( When . . . t he i ncl usi on of one gr oup pr omot es a l egi t i mat e gover nment al pur pose, and t he addi t i on of ot her gr oups woul d not , we cannot say t hat t he st at ut e' s cl assi f i cat i on of benef i ci ar i es and nonbenef i ci ar i es i s i nvi di ousl y di scr i mi nat or y) . Her e, t he Commonweal t h s goal of ensur i ng t hat unpl anned chi l dr en ar e r ai sed i n st abl e homes i s f ur t her ed onl y by of f er i ng t he benef i t s of mar r i age t o opposi t e- sex coupl es. As Vi r gi ni a cor r ect l y asser t s, t he r el evant i nqui r y her e i s not whet her excl udi ng same- sex coupl es f r om mar r i age f ur t her s [ Vi r gi ni a s] i nt er est i n st eer i ng man- woman coupl es i nt o mar r i age. Rat her , t he r el evant i nqui r y i s whet her al so r ecogni zi ng same- sex mar r i ages woul d f ur t her Vi r gi ni a s i nt er est s. Wi t h r egar d t o i t s i nt er est i n ensur i ng st abl e f ami l i es i n t he event of unpl anned pr egnanci es, i t woul d not . The pl ai nt i f f s r epl y t hat even i f t hi s i s so, such l i ne- dr awi ng onl y makes sense i f t he r esour ces at i ssue ar e scar ce, Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 87 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (162 of 518) 88
j ust i f yi ng t he St at e s l i mi t ed pr ovi si on of t hose r esour ces. They ar gue t hat because [ m] ar r i age l i censes . . . ar e not a r emot el y scar ce commodi t y, t he l i ne- dr awi ng done by Vi r gi ni a s mar r i age l aws i s i r r at i onal . But t hi s f undament al l y mi sunder st ands t he nat ur e of mar r i age benef i t s. When t he Commonweal t h gr ant s a mar r i age, i t does not si mpl y gi ve t he coupl e a pi ece of paper and a t i t l e. Rat her , i t pr ovi des a subst ant i al subsi dy t o t he mar r i ed coupl e - - economi c benef i t s t hat , t he pl ai nt i f f s r epeat edl y asser t , ar e bei ng deni ed t hem. For exampl e, mar r i ed coupl es ar e per mi t t ed t o f i l e st at e i ncome t axes j oi nt l y, l ower i ng t hei r t ax r at es. See Va. Code Ann. 58. 1- 324. Al t hough i ndi r ect , such benef i t s ar e cl ear l y subsi di es t hat come at a cost t o t he Commonweal t h. Vi r gi ni a i s wi l l i ng t o pr ovi de t hese subsi di es because t hey encour age opposi t e- sex coupl es t o mar r y, whi ch t ends t o pr ovi de chi l dr en f r om unpl anned pr egnanci es wi t h a mor e st abl e envi r onment . Under J ohnson, t he Commonweal t h i s not obl i gat ed t o si mi l ar l y subsi di ze same- sex mar r i ages, si nce doi ng so coul d not possi bl y f ur t her i t s i nt er est . Thi s i s no di f f er ent f r om t he subsi di es pr ovi ded i n ot her cases wher e t he Supr eme Cour t has uphel d l i ne- dr awi ng, such as Medi car e benef i t s, Mat t hews v. Di az, 426 U. S. 67, 83- 84 ( 1976) , or vet er ans educat i onal benef i t s, J ohnson, 415 U. S. at 383. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 88 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (163 of 518) 89
As an addi t i onal ar gument , Vi r gi ni a mai nt ai ns t hat mar r i age i s a [ c] ompl ex soci al i nst i t ut i on[ ] wi t h a set of nor ms, r ul es, pat t er ns, and expect at i ons t hat power f ul l y ( al bei t of t en unconsci ousl y) af f ect peopl e s choi ces, act i ons, and per spect i ves. I t asser t s t hat di scar di ng t he t r adi t i onal def i ni t i on of mar r i age wi l l have f ar - r eachi ng consequences t hat cannot easi l y be pr edi ct ed, i ncl udi ng sever [ i ng] t he i nher ent l i nk bet ween pr ocr eat i on . . . and mar r i age . . . [ and] i n t ur n . . . power f ul l y convey[ i ng] t hat mar r i age exi st s t o advance adul t desi r es r at her t han [ t o] ser v[ e] chi l dr en s needs. The pl ai nt i f f s agr ee t hat changi ng t he def i ni t i on of mar r i age may have unf or eseen soci al ef f ect s, but t hey ar gue t hat such pr edi ct i ons shoul d not be enough t o save Vi r gi ni a s mar r i age l aws because si mi l ar j ust i f i cat i ons wer e r ej ect ed i n Lovi ng. The Lovi ng Cour t , however , was not appl yi ng r at i onal - basi s r evi ew. See Lovi ng, 388 U. S. at 11- 12. We ar e on a di f f er ent f oot i ng her e. Under r at i onal - basi s r evi ew, l egi sl at i ve choi ces may be based on r at i onal specul at i on unsuppor t ed by evi dence or empi r i cal dat a. Beach Commc ns, 508 U. S. at 315. Sound pol i cymaki ng of t en r equi r es l egi sl at or s t o f or ecast f ut ur e event s and t o ant i ci pat e t he l i kel y i mpact of t hese event s based on deduct i ons and i nf er ences f or whi ch compl et e empi r i cal suppor t may be unavai l abl e. Tur ner Br oad. Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 89 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (164 of 518) 90
Sys. , I nc. v. FCC, 512 U. S. 622, 665 ( 1994) ( pl ur al i t y opi ni on) . And t he l egi sl at ur e i s f ar bet t er equi pped t han t he j udi ci ar y t o make t hese eval uat i ons and ul t i mat el y deci de on a cour se of act i on based on i t s pr edi ct i ons. I d. at 665- 66. I n enact i ng i t s mar r i age l aws, Vi r gi ni a pr edi ct ed t hat changi ng t he def i ni t i on of mar r i age woul d have a negat i ve ef f ect on chi l dr en and on t he f ami l y st r uct ur e. Al t hough ot her St at es do not shar e t hose concer ns, such eval uat i ons wer e nonet hel ess squar el y wi t hi n t he pr ovi nce of t he Commonweal t h s l egi sl at ur e and i t s ci t i zens, who vot ed t o amend Vi r gi ni a s Const i t ut i on i n 2006. Vi r gi ni a has undoubt edl y ar t i cul at ed suf f i ci ent r at i onal bases f or i t s mar r i age l aws, and I woul d f i nd t hat t hose bases const i t ut i onal l y j ust i f y t he l aws. Those l aws ar e gr ounded on t he bi ol ogi cal connect i on of men and women; t he pot ent i al f or t hei r havi ng chi l dr en; t he f ami l y or der needed i n r ai si ng chi l dr en; and, on a l ar ger scal e, t he pol i t i cal or der r esul t i ng f r om st abl e f ami l y uni t s. Mor eover , I woul d add t hat t he t r adi t i onal mar r i age r el at i onshi p encour ages a f ami l y st r uct ur e t hat i s i nt er gener at i onal , gi vi ng chi l dr en not onl y a st r uct ur e i n whi ch t o be r ai sed but al so an i dent i t y and a st r ong r el at i onal cont ext . The mar r i age of a man and a woman t hus r at i onal l y pr omot es a cor r el at i on bet ween bi ol ogi cal or der and pol i t i cal or der . Because Vi r gi ni a s mar r i age l aws ar e Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 90 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (165 of 518) 91
r at i onal l y r el at ed t o i t s l egi t i mat e pur poses, t hey wi t hst and r at i onal - basi s scr ut i ny under t he Due Pr ocess Cl ause.
I V
The maj or i t y does not subst ant i vel y addr ess t he pl ai nt i f f s second ar gument - - t hat Vi r gi ni a s mar r i age l aws i nvi di ousl y di scr i mi nat e on t he basi s of sexual or i ent at i on, i n vi ol at i on of t he Equal Pr ot ect i on Cl ause - - si nce i t f i nds t hat t he l aws i nf r i nge on t he pl ai nt i f f s f undament al r i ght t o mar r i age. But because I f i nd no f undament al r i ght i s i nf r i nged by t he l aws, I al so addr ess di scr i mi nat i on under t he Equal Pr ot ect i on Cl ause. The Equal Pr ot ect i on Cl ause, whi ch f or bi ds any St at e f r om deny[ i ng] t o any per son wi t hi n i t s j ur i sdi ct i on t he equal pr ot ect i on of t he l aws, U. S. Const . amend. XI V, 1, pr ohi bi t s i nvi di ous di scr i mi nat i on among cl asses of per sons. Some cl assi f i cat i ons - - such as t hose based on r ace, al i enage, or nat i onal or i gi n - - ar e so sel domr el evant t o t he achi evement of any l egi t i mat e st at e i nt er est t hat l aws gr ounded i n such consi der at i ons ar e deemed t o r ef l ect pr ej udi ce and ant i pat hy - - a vi ew t hat t hose i n t he bur dened cl ass ar e not as wor t hy or deser vi ng as ot her s. Ci t y of Cl ebur ne v. Cl ebur ne Li vi ng Ct r . , 473 U. S. 432, 440 ( 1985) . Any l aws based on such suspect cl assi f i cat i ons ar e subj ect t o st r i ct scr ut i ny. See i d. I n a si mi l ar vei n, cl assi f i cat i ons based on gender ar e quasi - Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 91 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (166 of 518) 92
suspect and cal l f or i nt er medi at e scr ut i ny because t hey f r equent l y bear [ ] no r el at i on t o abi l i t y t o per f or m or cont r i but e t o soci et y and t hus gener al l y pr ovi de[ ] no sensi bl e gr ound f or di f f er ent i al t r eat ment . I d. at 440- 41 ( quot i ng Fr ont i er o v. Ri char dson, 411 U. S. 677, 686 ( 1973) ( pl ur al i t y opi ni on) ) ; see al so Cr ai g v. Bor en, 429 U. S. 190, 197 ( 1976) . Laws subj ect t o i nt er medi at e scr ut i ny must be subst ant i al l y r el at ed t o an i mpor t ant gover nment obj ect i ve. See Uni t ed St at es v. Vi r gi ni a, 518 U. S. 515, 533 ( 1996) . But when a r egul at i on adver sel y af f ect s member s of a cl ass t hat i s not suspect or quasi - suspect , t he r egul at i on i s pr esumed t o be val i d and wi l l be sust ai ned i f t he cl assi f i cat i on dr awn by t he st at ut e i s r at i onal l y r el at ed t o a l egi t i mat e st at e i nt er est . Ci t y of Cl ebur ne, 473 U. S. at 440 ( emphasi s added) . Mor eover , t he Supr eme Cour t has made i t cl ear t hat wher e i ndi vi dual s i n t he gr oup af f ect ed by a l aw have di st i ngui shi ng char act er i st i cs r el evant t o i nt er est s t he St at e has t he aut hor i t y t o i mpl ement , t he cour t s have been ver y r el uct ant , as t hey shoul d be i n our f eder al syst em and wi t h our r espect f or t he separ at i on of power s, t o cl osel y scr ut i ni ze l egi sl at i ve choi ces as t o whet her , how, and t o what ext ent t hose i nt er est s shoul d be pur sued. I n such cases, t he Equal Pr ot ect i on Cl ause r equi r es onl y a r at i onal means t o ser ve a l egi t i mat e end. I d. at 441- 42 ( emphasi s added) . Thi s i s based on t he under st andi ng t hat equal pr ot ect i on of t he l aws must coexi st Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 92 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (167 of 518) 93
wi t h t he pr act i cal necessi t y t hat most l egi sl at i on cl assi f i es f or one pur pose or anot her , wi t h r esul t i ng di sadvant age t o var i ous gr oups or per sons. Romer , 517 U. S. at 631. The pl ai nt i f f s cont end t hat Vi r gi ni a s mar r i age l aws shoul d be subj ect ed t o some l evel of hei ght ened scr ut i ny because t hey di scr i mi nat e on t he basi s of sexual or i ent at i on. Yet t hey concede t hat nei t her t he Supr eme Cour t nor t he Four t h Ci r cui t has ever appl i ed hei ght ened scr ut i ny t o a cl assi f i cat i on based on sexual or i ent at i on. They ur ge t hi s cour t t o do so f or t he f i r st t i me. Gover ni ng pr ecedent , however , counsel s ot her wi se. I n Romer v. Evans, t he Supr eme Cour t di d not empl oy any hei ght ened l evel of scr ut i ny i n eval uat i ng a Col or ado const i t ut i onal amendment t hat pr ohi bi t ed st at e and l ocal gover nment s f r om enact i ng l egi sl at i on t hat woul d al l ow per sons t o cl ai m any mi nor i t y st at us, quot a pr ef er ences, pr ot ect ed st at us, or . . . di scr i mi nat i on based on sexual or i ent at i on. Romer , 517 U. S. at 624. I n hol di ng t he amendment unconst i t ut i onal under t he Equal Pr ot ect i on Cl ause, t he Cour t appl i ed r at i onal - basi s r evi ew. See i d. at 631- 33. And t he Supr eme Cour t made no change as t o t he appr opr i at e l evel of scr ut i ny i n i t s mor e r ecent deci si on i n Wi ndsor , whi ch hel d Sect i on 3 of t he Def ense of Mar r i age Act unconst i t ut i onal . The Cour t was pr esent ed an oppor t uni t y t o al t er t he Romer st andar d but di d not do so. Al t hough i t di d not st at e t he l evel Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 93 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (168 of 518) 94
of scr ut i ny bei ng appl i ed, i t di d expl i ci t l y r el y on r at i onal - basi s cases l i ke Romer and Depar t ment of Agr i cul t ur e v. Mor eno, 413 U. S. 528 ( 1973) . See Wi ndsor , 133 S. Ct . at 2693. I n hi s di ssent i ng opi ni on i n Wi ndsor , J ust i ce Scal i a t hus not ed, As near l y as I can t el l , t he Cour t agr ees [ t hat r at i onal - basi s r evi ew appl i es] ; i t s opi ni on does not appl y st r i ct scr ut i ny, and i t s cent r al pr oposi t i ons ar e t aken f r om r at i onal - basi s cases l i ke Mor eno. I d. at 2706 ( Scal i a, J . , di ssent i ng) . Fi nal l y, we have concl uded t hat r at i onal - basi s r evi ew appl i es t o cl assi f i cat i ons based on sexual or i ent at i on. See Veney v. Wyche, 293 F. 3d 726, 731- 32 ( 4t h Ci r . 2002) . I n Veney, a pr i soner f i l ed a 1983 act i on al l egi ng t hat he had been di scr i mi nat ed agai nst on t he basi s of sexual pr ef er ence and gender . I d. at 729- 30. We not ed t hat t he pl ai nt i f f [ di d] not al l ege t hat he [ was] a member of a suspect cl ass. Rat her , he cl ai m[ ed] t hat he ha[ d] been di scr i mi nat ed agai nst on t he basi s of sexual pr ef er ence and gender . Out si de t he pr i son cont ext , t he f or mer i s subj ect t o r at i onal basi s r evi ew, see Romer v. Evans, 517 U. S. 620, 631- 32 ( 1996) . I d. at 731- 32 ( f oot not e omi t t ed) . The vast maj or i t y of ot her cour t s of appeal s have r eached t he same concl usi on. See Cook v. Gat es, 528 F. 3d 42, 61 ( 1st Ci r . 2008) ( Romer nowher e suggest ed t hat t he Cour t r ecogni zed a new suspect cl ass. Absent addi t i onal gui dance f r om t he Supr eme Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 94 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (169 of 518) 95
Cour t , we j oi n our si st er ci r cui t s i n decl i ni ng t o r ead Romer as r ecogni zi ng homosexual s as a suspect cl ass f or equal pr ot ect i on pur poses) ; Pr i ce- Cor nel i son v. Br ooks, 524 F. 3d 1103, 1113- 14 & n. 9 ( 10t h Ci r . 2008) ( A gover nment of f i ci al can . . . di st i ngui sh bet ween i t s ci t i zens on t he basi s of sexual or i ent at i on, i f t hat cl assi f i cat i on bear s a r at i onal r el at i on t o some l egi t i mat e end ( i nt er nal quot at i on mar ks omi t t ed) ) ; Ci t i zens f or Equal Pr ot . v. Br uni ng, 455 F. 3d 859, 865- 66 ( 8t h Ci r . 2006) ( di scussi ng Romer and r eachi ng t he concl usi on t hat [ t ] hough t he most r el evant pr ecedent s ar e mur ky, we concl ude f or a number of r easons t hat [ Nebr aska s same- sex mar r i age ban] shoul d r ecei ve r at i onal - basi s r evi ew under t he Equal Pr ot ect i on Cl ause, r at her t han a hei ght ened l evel of j udi ci al scr ut i ny) ; J ohnson v. J ohnson, 385 F. 3d 503, 532 ( 5t h Ci r . 2004) ( [ A] st at e vi ol at es t he Equal Pr ot ect i on Cl ause i f i t di sadvant ages homosexual s f or r easons l acki ng any r at i onal r el at i onshi p t o l egi t i mat e gover nment al ai ms) ; Lof t on v. Sec y of Dep t of Chi l dr en & Fami l y Ser vs. , 358 F. 3d 804, 818 ( 11t h Ci r . 2004) ( [ A] l l of our si st er ci r cui t s t hat have consi der ed t he quest i on have decl i ned t o t r eat homosexual s as a suspect cl ass. Because t he pr esent case i nvol ves nei t her a f undament al r i ght nor a suspect cl ass, we r evi ew t he . . . st at ut e under t he r at i onal - basi s st andar d ( f oot not e omi t t ed) ) ; Equal . Found. of Gr eat er Ci nci nnat i , I nc. v. Ci t y of Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 95 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (170 of 518) 96
Ci nci nnat i , 128 F. 3d 289, 294, 300 ( 6t h Ci r . 1997) ( appl yi ng r at i onal - basi s r evi ew i n uphol di ng a ci t y char t er amendment r est r i ct i ng homosexual r i ght s and st at i ng t hat i n Romer , t he Cour t di d not assess Col or ado Amendment 2 under st r i ct scr ut i ny or i nt er medi at e scr ut i ny st andar ds, but i nst ead ul t i mat el y appl i ed r at i onal r el at i onshi p st r i ct ur es t o t hat enact ment and r esol ved t hat t he Col or ado st at e const i t ut i onal pr ovi si on di d not i nvade any f undament al r i ght and di d not t ar get any suspect cl ass or quasi - suspect cl ass) ; Ben- Shal om v. Mar sh, 881 F. 2d 454, 464 ( 7t h Ci r . 1989) ( appl yi ng r at i onal - basi s r evi ew pr i or t o t he announcement of Romer ) ; Woodwar d v. Uni t ed St at es, 871 F. 2d 1068, 1076 ( Fed. Ci r . 1989) ( The Supr eme Cour t has i dent i f i ed onl y t hr ee suspect cl asses: r aci al st at us, nat i onal ancest r y and et hni c or i gi nal , and al i enage. Two ot her cl assi f i cat i ons have been i dent i f i ed by t he Cour t as quasi - suspect : gender and i l l egi t i macy. [ Pl ai nt i f f ] woul d have t hi s cour t add homosexual i t y t o t hat l i st . Thi s we decl i ne t o do ( ci t at i ons and f oot not e omi t t ed) ) . But see Smi t hKl i ne BeechamCor p. v. Abbot t Labs. , 740 F. 3d 471, 481 ( 9t h Ci r . 2014) ( appl yi ng hei ght ened scr ut i ny t o a Bat son chal l enge t hat was based on sexual or i ent at i on) ; Wi ndsor v. Uni t ed St at es, 699 F. 3d 169, 180- 85 ( 2d Ci r . 2012) ( f i ndi ng i nt er medi at e scr ut i ny appr opr i at e i n assessi ng t he const i t ut i onal i t y of Sect i on 3 of t he Def ense of Mar r i age Act ) . Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 96 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (171 of 518) 97
Thus, f ol l owi ng Supr eme Cour t and Four t h Ci r cui t pr ecedent , I woul d hol d t hat Vi r gi ni a s mar r i age l aws ar e subj ect t o r at i onal - basi s r evi ew. Appl yi ng t hat st andar d, I concl ude t hat t her e i s a r at i onal basi s f or t he l aws, as expl ai ned i n Par t I I I , above. At bot t om, I agr ee wi t h J ust i ce Al i t o s r easoni ng t hat [ i ] n aski ng t he cour t t o det er mi ne t hat [ Vi r gi ni a s mar r i age l aws ar e] subj ect t o and vi ol at e[ ] hei ght ened scr ut i ny, [ t he pl ai nt i f f s] t hus ask us t o r ul e t hat t he pr esence of t wo member s of t he opposi t e sex i s as r at i onal l y r el at ed t o mar r i age as whi t e ski n i s t o vot i ng or a Y- chr omosome i s t o t he abi l i t y t o admi ni st er an est at e. That i s a st r i ki ng r equest and one t hat unel ect ed j udges shoul d pause bef or e gr ant i ng. Wi ndsor , 133 S. Ct . at 2717- 18 ( Al i t o, J . , di ssent i ng) .
V
Whet her t o r ecogni ze same- sex mar r i age i s an ongoi ng and hi ghl y engaged pol i t i cal debat e t aki ng pl ace acr oss t he Nat i on, and t he St at es ar e di vi ded on t he i ssue. The maj or i t y of cour t s have st r uck down st at ut es t hat deny r ecogni t i on of same- sex mar r i age, doi ng so al most excl usi vel y on t he i dea t hat same- sex mar r i age i s encompassed by t he f undament al r i ght t o mar r y t hat i s pr ot ect ed by t he Due Pr ocess Cl ause. Whi l e I expr ess no vi ewpoi nt on t he mer i t s of t he pol i cy debat e, I do st r ongl y di sagr ee wi t h t he asser t i on t hat same- sex mar r i age i s subj ect t o Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 97 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (172 of 518) 98
t he same const i t ut i onal pr ot ect i ons as t he t r adi t i onal r i ght t o mar r y. Because t her e i s no f undament al r i ght t o same- sex mar r i age and t her e ar e r at i onal r easons f or not r ecogni zi ng i t , j ust as t her e ar e r at i onal r easons f or r ecogni zi ng i t , I concl ude t hat we, i n t he Thi r d Br anch, must al l ow t he St at es t o enact l egi sl at i on on t he subj ect i n accor dance wi t h t hei r pol i t i cal pr ocesses. The U. S. Const i t ut i on does not , i n my j udgment , r est r i ct t he St at es pol i cy choi ces on t hi s i ssue. I f gi ven t he choi ce, some St at es wi l l sur el y r ecogni ze same- sex mar r i age and some wi l l sur el y not . But t hat i s, t o be sur e, t he beaut y of f eder al i sm. I woul d r ever se t he di st r i ct cour t s j udgment and def er t o Vi r gi ni a s pol i t i cal choi ce i n def i ni ng mar r i age as onl y bet ween one man and one woman.
Appeal: 14-1167 Doc: 234 Filed: 07/28/2014 Pg: 98 of 98 Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (173 of 518) Only the Westlaw citation is currently available. United States District Court, W.D. Kentucky, at Louisiville. Gregory BOURKE, et al., Plaintiffs v. Steve BESHEAR, et al., Defendants. Civil Action No. 3:13CV750H. Signed Feb. 12, 2014. Opinion Continuing Stay March 19, 2014. Background: Four same-sex couples validly mar- ried outside Kentucky brought 1983 action chal- lenging constitutionality of Kentucky's denial of re- cognition for valid same-sex marriages. Holdings: The District Court, John G. Heyburn II, J., held that: (1) rational basis review applied; (2) Kentucky's failure to recognize marriages of same-sex couples validly married outside of Ken- tucky treated gay and lesbian persons differently in a way that demeaned them; and (3) Kentucky's interest in preserving state's institu- tion of traditional marriage, standing alone, was not rational basis. Judgment for plaintiffs. West Headnotes [1] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and Civil Uni- ons. Most Cited Cases Rational basis review applied in 1983 action by same-sex couples validly married outside Ken- tucky, alleging Kentucky's denial of recognition for their marriages violated Fourteenth Amendment equal protection. U.S.C.A. Const.Amend. 14; Ky. Const. 233A; 42 U.S.C.A. 1983; KRS 402.005, 402.020(1)(d), 402.040(2), 402.045. [2] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and Civil Uni- ons. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to Regulate and Control. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of Foreign Union. Most Cited Cases Kentucky's failure to recognize marriages of same-sex couples validly married outside of Ken- tucky treated gay and lesbian persons differently in a way that demeaned them, for purposes of 1983 action by same-sex couples, alleging violations of Fourteenth Amendment equal protection; Kentucky law identified subset of marriages and made them unequal, and law burdened same-sex spouses by preventing them from receiving certain state and federal benefits afforded to other married couples. U.S.C.A. Const.Amend. 14; Ky. Const. 233A; 42 U.S.C.A. 1983; KRS 402.005, 402.020(1)(d), 402.040(2), 402.045. [3] Constitutional Law 92 3438 92 Constitutional Law Page 1 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (174 of 518) 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and Civil Uni- ons. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to Regulate and Control. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of Foreign Union. Most Cited Cases Kentucky's interest in preserving state's insti- tution of traditional marriage, standing alone, was not rational basis required to justify state's failure to recognize marriages of same-sex couples validly married outside of Kentucky, and, therefore, those provisions of Kentucky law were unconstitutional as in violation of Fourteenth Amendment equal pro- tection; that governing majority traditionally viewed practice as immoral was not sufficient reas- on for upholding laws prohibiting that practice. U.S.C.A. Const.Amend. 14; Ky. Const. 233A; KRS 402.005, 402.020(1)(d), 402.040(2), 402.045. [4] Constitutional Law 92 2450 92 Constitutional Law 92XX Separation of Powers 92XX(C) Judicial Powers and Functions 92XX(C)1 In General 92k2450 k. Nature and Scope in Gen- eral. Most Cited Cases It is emphatically the province and duty of the judicial department to say what the law is. [5] Federal Courts 170B 3463 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(F) Supersedeas or Stay of Pro- ceedings 170Bk3463 k. Other Particular Cases. Most Cited Cases Order overturning Kentucky's denial of recog- nition of valid same-sex marriages performed out- side Kentucky would be stayed pending appeal to the Court of Appeals; implementing the order would have dramatic effects, and risk confusion if it were later reversed. Fed.Rules Civ.Proc.Rule 62, 28 U.S.C.A. [6] Federal Courts 170B 3461 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(F) Supersedeas or Stay of Pro- ceedings 170Bk3461 k. In General. Most Cited Cases In determining whether to stay its own judg- ment or order, the court will consider the following factors: (1) whether the stay applicant has made a strong showing of likelihood of success on the mer- its; (2) whether the applicant will be irreparably in- jured absent a stay; (3) whether the issuance of a stay will substantially injure other parties interested in the proceedings; and (4) where the public interest lies. Fed.Rules Civ.Proc.Rule 62, 28 U.S.C.A. [7] Federal Courts 170B 3461 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(F) Supersedeas or Stay of Pro- ceedings 170Bk3461 k. In General. Most Cited Cases The loss of a constitutional right for even min- imal periods of time constitutes irreparable harm, in determining whether to stay an order or judgment pending appeal. Fed.Rules Civ.Proc.Rule 62, 28 U.S.C.A. West Codenotes Page 2 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (175 of 518) Held UnconstitutionalKy. Const. 233A, KRS 402.005, 402.020(1)(d), 402.040(2), 402.045.Dawn R. Elliott, Fauver Law Office, Daniel J. Canon, Laura E. Landenwich, Leonard J. Dunman, IV, Louis Paz Winner, Clay Daniel Walton Adams PLC, Shannon Renee Fauver, Fauver Law Office, Louisville, KY, for Plaintiffs. Brian Thomas Judy, Clay A. Barkley, Kentucky At- torney GeneralCivil & Environmental Law Div., Frankfort, KY, for Defendants. MEMORANDUM OPINION JOHN G. HEYBURN II, District Judge. *1 Four same-sex couples validly married out- side Kentucky have challenged the constitutionality of Kentucky's constitutional and statutory provi- sions that exclude them from the state recognition and benefits of marriage available to similarly situ- ated opposite-sex couples. While Kentucky unquestionably has the power to regulate the recognition of civil marriages, those regulations must comply with the Constitution of the United States. This court's role is not to impose its own political or policy judgments on the Com- monwealth or its people. Nor is it to question the importance and dignity of the institution of mar- riage as many see it. Rather, it is to discuss the be- nefits and privileges that Kentucky attaches to mar- ital relationships and to determine whether it does so lawfully under our federal constitution. From a constitutional perspective, the question here is whether Kentucky can justifiably deny same-sex spouses the recognition and attendant be- nefits it currently awards opposite-sex spouses. For those not trained in legal discourse, the questions may be less logical and more emotional. They con- cern issues of faith, beliefs, and traditions. Our Constitution was designed both to protect religious beliefs and prevent unlawful government discrimin- ation based upon them. The Court will address all of these issues. In the end, the Court concludes that Kentucky's denial of recognition for valid same-sex marriages violates the United States Constitution's guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky's statutes and constitutional amendment that mandate this denial are unconstitutional. I. No case of such magnitude arrives absent im- portant history and narrative. That narrative neces- sarily discusses (1) society's evolution on these is- sues, (2) a look at those who now demand their constitutional rights, and (3) an explication of their claims. For most of Kentucky's history, the limita- tion of marriage to opposite-sex couples was as- sumed and unchallenged. Those who might have disagreed did so in silence. But gradual changes in our society, political culture and constitutional un- derstandings have encouraged some to step forward and assert their rights. A. In 1972, two Kentucky women stepped forward to apply for a marriage license. The Kentucky Su- preme Court ruled that they were not entitled to one, noting that Kentucky statutes included neither a definition of marriage nor a prohibition on same-sex marriage. Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky.App.1973). The court defined marriage according to common usage, consulting several dictionaries. It held that no constitutional is- sue was involved and concluded, In substance, the relationship proposed ... is not a marriage. Id. at 590. This view was entirely consistent with the then-prevailing state and federal jurisprudence. See Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971), appeal dismissed for want of a substan- tial federal question, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972); Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499, 501 (N.Y.Spec. Term 1971). A lot has changed since then. Twenty-one long years later, the Hawaii Su- preme Court first opened the door to same-sex mar- riage. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d Page 3 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (176 of 518) 44, 61 (1993) (ruling that the state's prohibition on same-sex marriage was discriminatory under the Hawaii Constitution and remanding to allow the state to justify its position). The reaction was im- mediate and visceral. In the next few years, twenty- seven states passed anti-same-sex marriage legisla- tion, FN1 and Congress passed the Defense of Mar- riage Act (DOMA). FN2 *2 In 1998, Kentucky became one of those states, enacting new statutory provisions that (1) defined marriage as between one man and one wo- man, K.R.S. 402.005; (2) prohibited marriage between members of the same sex, K.R.S. 402.020(1)(d); (3) declared same-sex marriages contrary to Kentucky public policy, K.R.S. 402.040(2); and (4) declared same-sex marriages solemnized out of state void and the accompanying rights unenforceable, K.R.S. 402.045. FN3 Five years later, the Massachusetts Supreme Judicial Court declared that the state's own ban on same-sex marriage violated their state constitu- tion. Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 969 (2003). In May 2004, Massachusetts began marrying same-sex couples. In response, anti-same-sex marriage ad- vocates in many states initiated campaigns to enact constitutional amendments to protect traditional marriage. FN4 Like-minded Kentuckians began a similar cam- paign, arguing that although state law already pro- hibited same-sex marriage, a constitutional amend- ment would foreclose any possibility that a future court ruling would allow same-sex marriages to be performed or recognized in Kentucky. See S. DE- BATE, 108TH CONG., 2ND SESS. (Ky. 2004), ECF No. 386. The legislature placed such an amendment on the ballot. It contained only two sen- tences: Only a marriage between one man and one wo- man shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried indi- viduals shall not be valid or recognized. KY. CONST. 233A. Consequently, the amendment and Kentucky's statutes have much the same effect. On November 2, 2004, approximately 74% of participating voters approved the Amend- ment. FN5 Kentucky's same-sex marriage legal framework has not changed since. In the last decade, however, a virtual tidal wave of legislative enactments and judicial judgments in other states have repealed, in- validated, or otherwise abrogated state laws re- stricting same-sex couples' access to marriage and marriage recognition. FN6 B. In many respects, Plaintiffs here are average, stable American families. Gregory Bourke and Michael Deleon reside in Louisville, Kentucky and have been together for 31 years. They were lawfully married in Ontario, Canada in 2004 and have two minor children who are also named Plaintiffs: a 14yearold girl; and a 15yearold boy. Jimmy Meade and Luther Bar- lowe reside in Bardstown, Kentucky and have been together 44 years. They were lawfully married in Davenport, Iowa in 2009. Randell Johnson and Paul Campion reside in Louisville, Kentucky and have been together for 22 years. They were lawfully married in Riverside, California in 2008 and have four minor children who are named Plaintiffs: twin 18yearold boys; a 14yearold boy; and a 10yearold girl. Kimberly Franklin and Tamera Boyd reside in Cropper, Kentucky. FN7 They were lawfully married in Stratford, Connecticut in 2010. Collectively, they assert that Kentucky's legal framework denies them certain rights and benefits that validly married opposite-sex couples enjoy. For instance, a same-sex surviving spouse has no right to an inheritance tax exemption and thus must pay higher death taxes. They are not entitled to the same healthcare benefits as opposite-sex couples; a same-sex spouse must pay to add their spouse to Page 4 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (177 of 518) their employer-provided health insurance, while op- posite-sex spouses can elect this option free of charge. Same-sex spouses and their children are ex- cluded from intestacy laws governing the disposi- tion of estate assets upon death. Same-sex spouses and their children are precluded from recovering loss of consortium damages in civil litigation fol- lowing a wrongful death. Under Kentucky's work- ers compensation law, same-sex spouses have no legal standing to sue and recover as a result of their spouse's fatal workplace injury. *3 Moreover, certain federal protections are available only to couples whose marriage is legally recognized by their home state. For example, a same-sex spouse in Kentucky cannot take time off work to care for a sick spouse under the Family Medical Leave Act. 29 C.F.R. 825.122(b). In ad- dition, a same-sex spouse in Kentucky is denied ac- cess to a spouse's social security benefits. 42 U.S.C. 416(h)(1)(A)(i). No one denies these disparities. Finally, Plaintiffs assert additional non- economic injuries as well. They say that Kentucky's laws deny them a dignity and status of immense import, stigmatize them, and deny them the stabil- izing effects of marriage that helps keep couples to- gether. Plaintiffs also allege injuries to their chil- dren including: (1) a reduction in family resources due to the State's differential treatment of their par- ents, (2) stigmatization resulting from the denial of social recognition and respect, (3) humiliation, and (4) harm from only one parent being able to be lis- ted as an adoptive parentthe other being merely their legal guardian. C. Plaintiffs advance six primary claims under 42 U.S.C. 1983:(1) deprivation of the fundamental right to marry in violation of the Due Process Clause of the Fourteenth Amendment; (2) discrim- ination on the basis of sexual orientation in viola- tion of the Equal Protection Clause of the Four- teenth Amendment; FN8 (3) discrimination against same-sex couples in violation of the freedom of as- sociation guaranteed by the First Amendment; (4) failure to recognize valid public records of other states in violation of the Full Faith and Credit Clause of Article IV, Section 1; (5) deprivation of the right to travel in violation of the Due Process Clause of the Fourteenth Amendment; and (6) es- tablishment of a religious definition of marriage in violation of the Establishment Clause of the First Amendment. FN9 Plaintiffs seek an order enjoining the State from enforcing the pertinent constitutional and statutory provisions. While Plaintiffs have many constitutional the- ories, the Fourteenth Amendment's Equal Protec- tion Clause provides the most appropriate analytical framework. FN10 If equal protection analysis de- cides this case, the Court need not address any oth- ers. No one disputes that the same-sex couples who have brought this case are treated differently under Kentucky law than those in comparable opposite- sex marriages. No one seems to disagree that, as presented here, the equal protection issue is purely a question of law. The Court must decide whether the Kentucky Constitution and statutes violate Plaintiffs' federal constitutional rights. II. *4 [1] Before addressing the substance of equal protection analysis, the Court must first determine the applicable standard of review. Rational basis re- view applies unless Kentucky's laws affect a sus- pect class of individuals or significantly interfere with a fundamental right. Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) . A. The Kentucky provisions challenged here im- pose a classification based on sexual orientation. Barely seven months ago, the Supreme Court issued a historic opinion applying equal protection analys- is to federal non-recognition of same-sex marriages. United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). FN11 Although the majority opinion covered many topics, it never clearly explained the applicable standard of review. Some of Justice Kennedy's language corresponded Page 5 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (178 of 518) to rational basis review. See id. at 2696 (no legit- imate purpose overcomes the purpose and effect to disparage and to injure....). However, the scrutiny that the Court actually applied does not so much re- semble it. See id. at 2706 (Scalia, J., dissenting) (the majority does not apply strict scrutiny, and [although] its central propositions are taken from rational basis cases ... the Court certainly does not apply anything that resembles that deferential framework.) (emphasis in original). So, we are left without a clear answer. The Sixth Circuit has said that sexual orienta- tion is not a suspect classification and thus is not subject to heightened scrutiny. Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir.2012) (citing Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir.2006)). Though Davis concerned slightly different circumstances, it would seem to limit the Court's independent assessment of the question. Accord Bassett v. Snyder, 951 F.Supp.2d 939, 961 (E.D.Mich.2013). It would be no surprise, however, were the Sixth Circuit to reconsider its view. Several theor- ies support heightened review. Davis based its de- cision on a line of cases relying on Bowers v. Hard- wick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which has since been overruled by Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) ( Bowers was not correct when it was decided, and it is not correct today.). FN12 Recently, several courts, including the Ninth Circuit, have held that classifications based on sexual orientation are subject to heightened scrutiny. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 483 (9th Cir.2014) (finding that Windsor employed heightened scrutiny). Moreover, a number of reasons suggest that gay and lesbian individuals do constitute a suspect class. They seem to share many characteristics of other groups that are afforded heightened scrutiny, such as historical discrimination, immutable or dis- tinguishing characteristics that define them as a dis- crete group, and relative political powerlessness. See Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). Further, their com- mon characteristic does not impair their ability to contribute to society. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 44041, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). *5 All of these arguments have merit. To re- solve the issue, however, the Court must look to Windsor and the Sixth Circuit. In Windsor, no clear majority of Justices stated that sexual orientation was a suspect category. B. Supreme Court jurisprudence suggests that the right to marry is a fundamental right. See Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (Marriage is one of the basic civil rights of man, fundamental to our existence and survival (quoting Skinner v. Oklahoma ex rel. Wil- liamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942))); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (the right to marry is a central part of Due Process liberty); Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888) (marriage creates the most important relation in life). The right to marry also implicates the right to privacy and the right to freedom of association. Griswold v. Con- necticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (marriage involves a right of privacy older than the Bill of Rights); M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (Choices about marriage ... are among associational rights this Court has ranked of basic importance in our society and are protected under the Fourteenth Amendment (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971))). Despite this comforting language, neither the Supreme Court nor the Sixth Circuit has stated that the fundamental right to marry includes a funda- mental right to marry someone of the same sex. Moreover, Plaintiffs do not seek the right to marry Page 6 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (179 of 518) in Kentucky. Rather, they challenge the State's lack of recognition for their validly solemnized mar- riages. FN13 To resolve the issue, the Court must again look to Windsor. In Windsor, the Supreme Court did not clearly state that the non-recognition of marriages under Section 3 of DOMA implicated a fundament- al right, much less significantly interfered with one. Therefore, the Court will apply rational basis re- view. Ultimately, the result in this case is unaf- fected by the level of scrutiny applied. C. *6 Under this standard, the Court must determ- ine whether these Kentucky laws are rationally re- lated to a legitimate government purpose. Plaintiffs have the burden to prove either that there is no con- ceivable legitimate purpose for the law or that the means chosen to effectuate a legitimate purpose are not rationally related to that purpose. This standard is highly deferential to government activity but is surmountable, particularly in the context of dis- crimination based on sexual orientation. Rational basis review, while deferential, is not toothless. Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th Cir.1998) (quoting Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976)). This search for a rational rela- tionship ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Even under this most deferential standard of re- view, courts must still insist on knowing the rela- tion between the classification adopted and the ob- ject to be attained. Id. at 632, 116 S.Ct. 1620 (emphasis added). III. In a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky's cit- izens have done so here. Whether enacted by a le- gislature or by public referendum, those laws are subject to the guarantees of individual liberties con- tained within the United States Constitution. Wind- sor, 133 S.Ct. at 2691; see e.g., Loving, 388 U.S. at 12, 87 S.Ct. 1817 (statute prohibiting interracial marriage violated equal protection). Ultimately, the focus of the Court's attention must be upon Justice Kennedy's majority opinion in Windsor. While Justice Kennedy did not address our specific issue, he did address many others closely related. His reasoning about the legitimacy of laws excluding recognition of same-sex mar- riages is instructive. For the reasons that follow, the Court concludes that Kentucky's laws are unconsti- tutional. A. In Windsor, Justice Kennedy found that by treating same-sex married couples differently than opposite-sex married couples, Section 3 of DOMA violate[d] basic due process and equal protection principles applicable to the Federal Government. Windsor, 133 S.Ct. at 2693. His reasoning estab- lishes certain principles that strongly suggest the result here. FN14 [2] The first of those principles is that the actu- al purpose of Kentucky's laws is relevant to this analysis to the extent that their purpose and princip- al effect was to treat two groups differently. Id. As described so well by substituting our particular cir- cumstances within Justice Kennedy's own words, that principle applies quite aptly here: [Kentucky's laws'] principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like government- al efficiency. *7 Id. at 2694. The legislative history of Ken- tucky's laws clearly demonstrates the intent to per- manently prevent the recognition of same-sex mar- riage in Kentucky. FN15 Whether that purpose also demonstrates an obvious animus against same-sex couples may be debatable. But those two motiva- tions are often different sides of the same coin. Page 7 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (180 of 518) The second principle is that such an amend- ment demeans one group by depriving them of rights provided for others. As Justice Kennedy would say: Responsibilities, as well as rights, enhance the dignity and integrity of the person. And [Kentucky's laws] contrive[ ] to deprive some couples [married out of state], but not other couples [married out of state], of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, [Kentucky's laws] force[ ] same-sex couples to live as married for the purpose of [federal law] but unmarried for the purpose of [Kentucky] law.... This places same-sex couples [married out of state] in an unstable position of being in a second-tier marriage [in Kentucky]. The differen- tiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, 123 S.Ct. 2472. Id. Under Justice Kennedy's logic, Kentucky's laws burden the lives of same-sex spouses by pre- venting them from receiving certain state and feder- al governmental benefits afforded to other married couples. Id. Those laws instruct[ ] all ... officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. Id. at 2696. Indeed, Justice Kennedy's ana- lysis would seem to command that a law refusing to recognize valid out-of-state same-sex marriages has only one effect: to impose inequality. From this analysis, it is clear that Kentucky's laws treat gay and lesbian persons differently in a way that demeans them. Absent a clear showing of animus, however, the Court must still search for any rational relation to a legitimate government purpose. B. [3] The State's sole justification for the chal- lenged provisions is: the Commonwealth's public policy is rationally related to the legitimate govern- ment interest of preserving the state's institution of traditional marriage. Certainly, these laws do fur- ther that policy. That Kentucky's laws are rooted in tradition, however, cannot alone justify their infringement on individual liberties. See Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.); Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) ([N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack....). Over the past forty years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties. See, e.g., Loving, 388 U.S. at 12, 87 S.Ct. 1817 (states cannot prohibit interracial marriage); Lawrence, 539 U.S. at 57778, 123 S.Ct. 2472 (states cannot criminal- ize private, consensual sexual conduct); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 73335, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (states cannot act based on stereotypes about women's assumption of primary childcare responsibility). Justice Kennedy restated the principle most clearly: [T]he fact that the governing majority in a State has traditionally viewed a particular practice as im- moral is not a sufficient reason for upholding a law prohibiting the practice.... Lawrence, 539 U.S. at 577, 123 S.Ct. 2472 (quoting Bowers, 478 U.S. at 216, 106 S.Ct. 2841 (Stevens, J., dissenting)). Justice Scalia was more blunt, stating that preserving the traditional institution of marriage is just a kinder way of describing the State's moral disapproval of same-sex couples. Id. at 601, 123 S.Ct. 2472 (Scalia, J., dissenting) (emphasis in ori- ginal). Usually, as here, the tradition behind the chal- lenged law began at a time when most people did not fully appreciate, much less articulate, the indi- vidual rights in question. For years, many states had a tradition of segregation and even articulated reas- Page 8 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (181 of 518) ons why it created a better, more stable society. Similarly, many states deprived women of their equal rights under the law, believing this to prop- erly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another's constitutional rights. Here as well, sometime in the not too distant future, the same understanding will come to pass. C. *8 The Family Trust Foundation of Kentucky, Inc. submitted a brief as amicus curiae which cast a broader net in search of reasons to justify Ken- tucky's laws. It offered additional purported legit- imate interests including: responsible procreation and childrearing, steering naturally procreative rela- tionships into stable unions, promoting the optimal childrearing environment, and proceeding with cau- tion when considering changes in how the state defines marriage. These reasons comprise all those of which the Court might possibly conceive. The State, not surprisingly, declined to offer these justifications, as each has failed rational basis review in every court to consider them post- Wind- sor, and most courts pre- Windsor. See, e.g., Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 129096 (N.D.Okla.2014) (responsible pro- creation and childrearing, steering naturally procre- ative relationships into stable unions, promoting the ideal family unit, and avoiding changes to the insti- tution of marriage and unintended consequences); Kitchen v. Herbert, 961 F.Supp.2d 1181, 121114 (D.Utah 2013) (responsible procreation, optimal childrearing, proceeding with caution); Obergefell v. Wymyslo, 962 F.Supp.2d 968, 99395 (S.D.Ohio 2013) (optimal childrearing). The Court fails to see how having a family could conceivably harm chil- dren. Indeed, Justice Kennedy explained that it was the government's failure to recognize same-sex marriages that harmed children, not having married parents who happened to be of the same sex: [I]t humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the chil- dren to understand the integrity and closeness of their own family and its concord with other fam- ilies in their community and in their daily lives. Windsor, 133 S.Ct. at 2694. As in other cases that have rejected the amicus's arguments, no one in this case has offered factual or rational reasons why Kentucky's laws are rationally related to any of these purposes. Ken- tucky does not require proof of procreative ability to have an out-of-state marriage recognized. The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post- menopausal couples or infertile couples on procre- ation grounds. After all, Kentucky allows gay and lesbian individuals to adopt children. And no one has offered evidence that same-sex couples would be any less capable of raising children or any less faithful in their marriage vows. Compare this with Plaintiffs, who have not argued against the many merits of traditional marriage. They argue only that they should be allowed to enjoy them also. Other than those discussed above, the Court cannot conceive of any reasons for enacting the laws challenged here. Even if one were to conclude that Kentucky's laws do not show animus, they can- not withstand traditional rational basis review. D. *9 The Court is not alone in its assessment of the binding effects of Supreme Court jurisprudence, particularly Justice Kennedy's substantive analysis articulated over almost two decades. Nine state and federal courts have reached con- clusions similar to those of this Court. After the Massachusetts Supreme Judicial Court led the way by allowing same-sex couples to marry, five years later the Connecticut Supreme Court reached a sim- ilar conclusion regarding its state constitution on equal protection grounds. Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 957 A.2d 407, 482 (2008). Other courts soon began to follow. See Page 9 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (182 of 518) Varnum v. Brien, 763 N.W.2d 862, 907 (Iowa 2009) (holding that banning same-sex marriage vi- olated equal protection as guaranteed by the Iowa Constitution); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1003 (N.D.Cal.2010) (holding that the state's constitutional ban on same-sex marriage enacted via popular referendum violated the Equal Protection and Due Process clauses of the Four- teenth Amendment to the United States Constitu- tion) aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir.2012) vacated and remanded sub nom. Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013); Garden State Equality v. Dow, 434 N.J.Super. 163, 82 A.3d 336, 36768 (2013) (holding that disallowing same-sex marriage violated the New Jersey Constitution, and the governor withdrew the state's appeal); Griego v. Oliver, 316 P.3d 865, 872 (N.M.2013) (holding that denying same-sex couples the right to marry viol- ated the state constitution's equal protection clause). Over the last several months alone, three feder- al district courts have issued well-reasoned opin- ions supporting the rights of non-heterosexual per- sons to marriage equality in similar circumstances. See Bishop, 962 F.Supp.2d at 125859 (holding that the state's ban on same-sex marriage violated the Equal Protection Clause of the Fourteenth Amend- ment); Obergefell, 962 F.Supp.2d at 97274 (holding that Ohio's constitutional and statutory ban on the recognition of same-sex marriages validly performed out-of-state was unconstitutional as ap- plied to Ohio death certificates); Kitchen, 961 F.Supp.2d at 118788 (holding that the state's con- stitutional and statutory ban on same-sex marriage violated the Equal Protection and Due Process clause of the Fourteenth Amendment). Indeed, to date, all federal courts that have con- sidered same-sex marriage rights post- Windsor have ruled in favor of same-sex marriage rights. This Court joins in general agreement with their analyses. IV. *10 For many, a case involving these issues prompts some sincere questions and concerns. After all, recognizing same-sex marriage clashes with many accepted norms in Kentuckyboth in society and faith. To the extent courts clash with what likely remains that majority opinion here, they risk some of the public's acceptance. For these reasons, the Court feels a special obligation to answer some of those concerns. A. Many Kentuckians believe in traditional mar- riage. Many believe what their ministers and scrip- tures tell them: that a marriage is a sacrament insti- tuted between God and a man and a woman for so- ciety's benefit. They may be confusedeven angrywhen a decision such as this one seems to call into question that view. These concerns are un- derstandable and deserve an answer. Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a tra- ditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons. The beauty of our Constitution is that it accom- modates our individual faith's definition of mar- riage while preventing the government from unlaw- fully treating us differently. This is hardly surpris- ing since it was written by people who came to America to find both freedom of religion and free- dom from it. B. Many others may wonder about the future of marriages generally and the right of a religion or an individual church to set its own rules governing it. For instance, must Kentucky now allow same-sex couples to marry in this state? Must churches now Page 10 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (183 of 518) marry same-sex couples? How will this decision change or affect my marriage? First, the Court was not presented with the par- ticular question whether Kentucky's ban on same- sex marriage is constitutional. However, there is no doubt that Windsor and this Court's analysis sug- gest a possible result to that question. Second, allowing same-sex couples the state re- cognition, benefits, and obligations of marriage does not in any way diminish those enjoyed by op- posite-sex married couples. No one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages, individually or col- lectively. One's belief to the contrary, however sin- cerely held, cannot alone justify denying a selected group their constitutional rights. Third, no court can require churches or other religious institutions to marry same-sex couples or any other couple, for that matter. This is part of our constitutional guarantee of freedom of religion. That decision will always be based on religious doctrine. What this opinion does, however, is make real the promise of equal protection under the law. It will profoundly affect validly married same-sex couples' experience of living in the Commonwealth and elevate their marriage to an equal status in the eyes of state law. C. *11 Many people might assume that the cit- izens of a state by their own state constitution can establish the basic principles of governing their civil life. How can a single judge interfere with that right? It is true that the citizens have wide latitude to codify their traditional and moral values into law. In fact, until after the Civil War, states had almost complete power to do so, unless they encroached on a specific federal power. See Barron v. City of Bal- timore, 32 U.S. 243, 25051, 7 Pet. 243, 8 L.Ed. 672 (1833). However, in 1868 our country adopted the Fourteenth Amendment, which prohibited state governments from infringing upon our individual rights. Over the years, the Supreme Court has said time and time again that this Amendment makes the vast majority of the original Bill of Rights and oth- er fundamental rights applicable to state govern- ments. In fact, the first justice to articulate this view was one of Kentucky's most famous sons, Justice John Marshall Harlan. See Hurtado v. California, 110 U.S. 516, 558, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (Harlan, J., dissenting). He wrote that the Fourteenth Amendment added greatly to the dig- nity and glory of American citizenship, and to the security of personal liberty, by declaring that ... no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due pro- cess of law, nor deny to any person within its juris- diction the equal protection of the laws. Plessy v. Ferguson, 163 U.S. 537, 555, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting) (quoting U.S. CONST. amend. XIV). [4] So now, the Constitution, including its equal protection and due process clauses, protects all of us from government action at any level, whether in the form of an act by a high official, a state employee, a legislature, or a vote of the people adopting a constitutional amendment. As Chief Justice John Marshall said, [i]t is emphatically the province and duty of the judicial department to say what the law is. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803). Initially that decision typically rests with one judge; ulti- mately, other judges, including the justices of the Supreme Court, have the final say. That is the way of our Constitution. D. For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the Page 11 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (184 of 518) meaning of the Fourteenth Amendment or our Con- stitution? Why is all this happening so suddenly? The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. FN16 If this were not so, many practices that we now abhor would still exist. *12 Contrary to how it may seem, there is nothing sudden about this result. The body of con- stitutional jurisprudence that serves as its founda- tion has evolved gradually over the past forty-seven years. The Supreme Court took its first step on this journey in 1967 when it decided the landmark case Loving v. Virginia, which declared that Virginia's refusal to marry mixed-race couples violated equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the states, are subject to constitutional scrutiny and must respect the constitutional rights of persons. Windsor, 133 S.Ct. at 2691 (citing Loving ). Years later, in 1996, Justice Kennedy first emerged as the Court's swing vote and leading ex- plicator of these issues in Romer v. Evans. Romer, 517 U.S. at 635, 116 S.Ct. 1620 (holding that Col- orado's constitutional amendment prohibiting all le- gislative, executive, or judicial action designed to protect homosexual persons violated the Equal Pro- tection Clause). He explained that if the constitutional conception of equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically un- popular group cannot constitute a legitimate gov- ernmental interest. Id. at 63435, 116 S.Ct. 1620 (emphasis in original) (quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). These two cases were the vir- tual roadmaps for the cases to come next. In 2003, Justice Kennedy, again writing for the majority, addressed another facet of the same issue in Lawrence v. Texas, explaining that sexual rela- tions are but one element in a personal bond that is more enduring and holding that a Texas statute criminalizing certain sexual conduct between per- sons of the same sex violated the Constitution. 539 U.S. at 567, 123 S.Ct. 2472. Ten years later came Windsor. And, sometime in the next few years at least one other Supreme Court opinion will likely complete this judicial journey. So, as one can readily see, judicial thinking on this issue has evolved ever so slowly. That is be- cause courts usually answer only the questions that come before it. Judge Oliver Wendell Holmes aptly described this process: [J]udges do and must legis- late, but they can do so only interstitially; they are confined from molar to molecular motions. S. Pac. Co. v. Jensen, 244 U.S. 205, 221, 37 S.Ct. 524, 61 L.Ed. 1086 (1917) (Holmes, J., dissenting). In Romer, Lawrence, and finally, Windsor, the Su- preme Court has moved interstitially, as Holmes said it should, establishing the framework of cases from which district judges now draw wisdom and inspiration. Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled. The Court will enter an order consistent with this Memorandum Opinion. MEMORANDUM OPINION AND ORDER *13 [5] Defendant, the Governor of Kentucky, has moved for a stay of enforcement of this Court's February 27, 2014 final order, pending its appeal to the United States Court of Appeals for the Sixth Circuit. On February 28, the Court granted a stay up to and including March 20, 2014, in order to al- low the state a reasonable time to implement the or- der. Defendant moved the Court for an extension of the stay on March 14, and the parties appeared be- fore the Court for a telephonic hearing on the mat- ter on March 17. Defendant filed a notice of appeal on March 18. I. [6] Federal Rule of Civil Procedure 62 em- Page 12 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (185 of 518) powers this Court to stay enforcement of its own orders and judgments. Particularly in civil matters, there are no rigid rules that govern such a stay, and courts have a fair amount of discretion. The Court will consider the following factors: (1) whether the stay applicant has made a strong showing of likeli- hood of success on the merits; (2) whether the ap- plicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially in- jure other parties interested in the proceedings; and (4) where the public interest lies. Hilton v. Braun- skill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987); Baker v. Adams Cnty./Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002). Here, the applicant has not made a strong showing of a likelihood of success on the merits. The district courts are so far unanimous, but no court of appeals has issued an opinion. So, one must admit that ultimate resolution of these issues is unknown. FN1 The applicant contends that the state will suffer irreparable harmchaosif the stay is not ex- tended. It must demonstrate irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. Family Trust Found. of Ky., Inc. v. Ky. Judicial Conduct Comm'n, 388 F.3d 224, 227 (6th Cir.2004) (quoting Baker, 310 F.3d at 928) (internal quotation marks omitted). To illustrate the irreparable harm, the applicant cites the potential granting and then taking away of same-sex marriage recognition to couples. It also cites the potential impacts on businesses and ser- vices where marital status is relevant, including health insurance companies, creditors, [and] estate planners.... This is a legitimate concern. [7] On the other hand, Plaintiff same-sex couples argue that they would rather have their marriages recognized for a short amount of time than never at all. Plaintiffs contend that the irrepar- able harms cited by Defendant are actually minor bureaucratic inconveniences which cannot over- come their constitutional rights. The Court agrees that further delay would be a delay in vindicating Plaintiffs' constitutional rights and obtaining access to important government benefits. The loss of a constitutional right for even minimal periods of time constitutes irreparable harm. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). Finally, the applicant argues that avoiding chaos and uncertainty is in the public's best interest. However, as the Court previously noted, the public interest is twofold: that the Constitution be upheld, and that changes in the law be implemented con- sistently and without undue confusion. The Court has concerns about implementing an order which has dramatic effects, and then having that order re- versed, which is one possibility. Under such cir- cumstances, rights once granted could be cast in doubt. *14 In this Court's view, the application of these four factors is mixed. II. Another issue of great concern is the signific- ance of the Supreme Court's stay of the district court's injunction in Herbert v. Kitchen, U.S. , 134 S.Ct. 893, 187 L.Ed.2d 699 (2014). Since then, three additional cases in which Plaintiffs sought the issuance of marriage licenses have entered stays on their rulings pending appeal. See Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 129596 (N.D.Okla.2014); Bostic v. Rainey, 970 F.Supp.2d 456, , 2014 WL 561978, at *23 (E.D.Va.2014); De Leon v. Perry, SA13CA00982OLG, F.Supp.2d , , 2014 WL 715741, at *28 (W.D.Tex. Feb. 26, 2014). The applicant says that it is precedential here. Plaintiffs make a compelling argument that, at the time of the Supreme Court's guidance in Kit- chen, the Tenth Circuit had already directed exped- ited briefing and argument. Here, there is no such guarantee of expedited briefing before the Sixth Circuit. It may be years before the appeals process Page 13 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (186 of 518) is completed. Also, our case is different than Kit- chen. Nevertheless, the Supreme Court has sent a strong message by its unusual intervention and or- der in that case. It cannot be easily ignored. Perhaps it is difficult for Plaintiffs to under- stand how rights won can be delayed. It is a truth that our judicial system can act with stunning quickness, as this Court has; and then with some- times maddening slowness. One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and ac- ceptance. This is the way of our Constitution. It is that belief which ultimately informs the Court's de- cision to grant a stay. It is best that these moment- ous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well. Being otherwise sufficiently advised, IT IS HEREBY ORDERED that the stay of this Court's February 27, 2014 final order is extended until further order of the Sixth Circuit. FN1. See ALA.CODE 30119 (2013); ARIZ.REV.STAT. ANN. 25101, 125 (2013); ARK.CODE ANN. 911208(b), 107(b) (West 2013); COLO.REV.STAT. ANN. 142104 (West 2013); FLA. STAT. ANN.. 741.212 (West 2013); GA.CODE ANN. 1933.1 (West 2013); HAW.REV.STAT. 5721, 1.6 (West 2013) (repealed 2011); IDAHO CODE ANN. 32209 (West 2013); 750 ILL. COMP. STAT. ANN.N. 5/212(a)(5), 5/213.1 (West 2013); IND.CODE ANN. 311111 (West 2013); KAN. STAT. ANN. . 232501, 232508 (West 2013); LA. CIV.CODE ANN. art. 89, 3520 (2013); MICH. COMP. LAWS ANN. 551.1, .271(2) (West 2013); MISS.CODE ANN. 9311(2) (West 2013); MO. ANN. STAT. 451.022 (West 2013); MONT.CODE ANN. 401401(1)(d) (2013); N.C. GEN.STAT. ANN. 511.2 (West 2013); N.D. CENT.CODE ANN. 140301, 08 (West 2013); OKLA. STAT. tit. 43, 3.1 (2013); 23 PA. CONS.STAT. ANN. 1102, 1704 (West 2013); S.C.CODE ANN. 20110, 15 (2013); S.D. CODIFIED LAWS 2511, 38 (2013); TENN.CODE ANN. 363113 (West 2013); TEX. FAM.CODE ANN. 1.103, 2.001 (West 2013); UTAH CODE ANN. 3012 (West 2013), invalidated by Kit- chen v. Herbert, 961 F.Supp.2d 1181 (D.Utah 2013); VA.CODE ANN. 2045.2 (West 2013); W. VA.CODE ANN. 482104, 401 (West 2013). FN2. The bill included commentary that stated: a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits. H.R.REP. NO. 104664, at 411, 1996 U.S.C.C.A.N. 2905, 2914 (1996). FN3. The pertinent text of these provisions is: 402.005: As used and recognized in the law of the Commonwealth, marriage refers only to the civil status, condition, or relation of one (1) man and one (1) woman.... 402.020:(1) Marriage is prohibited and void (d) Between members of the same sex. 402.040:(2) A marriage between mem- bers of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in K.R.S. 402.045. 402.045:(1) A marriage between mem- bers of the same sex which occurs in an- Page 14 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (187 of 518) other jurisdiction shall be void in Ken- tucky. (2) Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts. KY.REV.STAT. ANN. 402.005.045 (West 2013). FN4. States passing constitutional amend- ments banning same-sex marriage in 2004 include Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Mis- souri, Montana, North Dakota, Ohio, Ok- lahoma, Oregon, and Utah. Other states followed suit: in 2005, Kansas and Texas; in 2006, Alabama, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Vir- ginia, and Wisconsin; in 2008, Arizona, California, and Florida; and in 2012, North Carolina. Alaska passed its constitutional ban in 1998, and Nebraska and Nevada did so in 2000. California's, Utah's, and Ok- lahoma's constitutional bans have since been overturned. FN5. 53.6% of Kentucky's registered voters participated. FN6. Recognition by legislation and by popular vote has occurred in Vermont (Apr. 7, 2009), New Hampshire (June 3, 2009), District of Columbia (Dec. 18, 2009), New York (June 24, 2011), Wash- ington (Nov. 6, 2012), Maine (Nov. 6, 2012), Maryland (Nov. 6, 2012), Delaware (May 7, 2013), Minnesota (May 14, 2013), Rhode Island (May 2, 2013), Hawaii (Nov. 13, 2013), and Illinois (Nov. 20, 2013) (effective June 1, 2014). State and federal court judgments have occurred in Mas- sachusetts, Connecticut, Iowa, California, New Jersey, New Mexico, Utah, and Ok- lahoma. The Utah and Oklahoma decisions are currently being appealed. FN7. Plaintiffs Franklin and Boyd are res- idents of Shelby County and originally filed suit in the Eastern District of Ken- tucky. Judge Gregory Van Tatenhove gran- ted Plaintiffs and Defendants' joint motion for change of venue pursuant to 28 U.S.C. 1404 to the Western District of Ken- tucky. The case was assigned to Judge Thomas Russell, who transferred it here in the interest of judicial economy and to equalize the docket. Although the cases were not consolidated, Plaintiffs here sub- sequently added Franklin and Boyd to this action in their Second Amended Com- plaint. FN8. In their Second Amended Complaint, Plaintiffs also alleged discrimination on the basis of sex. However, the current mo- tion before the Court does not mention any such basis. Therefore, the Court will con- strue this claim to allege only discrimina- tion based on sexual orientation. FN9. Plaintiffs also seek a declaration that Section 2 of the Defense of Marriage Act (DOMA), 28 U.S.C. 1738C, as applied to Plaintiffs and similarly situated same-sex couples violates the Due Process, Equal Protection, Freedom of Association, and Full Faith and Credit clauses of the United States Constitution. The Court finds that Section 2 of DOMA, as a permissive stat- ute, is not necessary to the disposition of Plaintiffs' case and therefore will not ana- lyze its constitutionality. FN10. The Fourteenth Amendment to the U.S. Constitution provides, in pertinent part: No State shall make or enforce any law which shall abridge the privileges or im- munities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due pro- cess of law; nor deny to any person with- Page 15 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (188 of 518) in its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV 1. FN11. In Windsor, the state of New York enacted legislation recognizing same-sex marriages performed out of state and later amended its own laws to permit same-sex marriage. Section 3 of the Defense of Mar- riage Act (DOMA) denied recognition to same-sex marriages for the purposes of federal law. As a result of DOMA, a same- sex spouse did not qualify for the marital exemption from the federal estate tax. She brought an action challenging the constitu- tionality of Section 3 of DOMA in federal court. The Windsor Court applied Fifth Amendment due process and equal protec- tion analysis to the plaintiff's challenge of a federal statute. Our case involves a chal- lenge to a state constitutional provision and state statutes, thus falling under the protections of the Fourteenth Amendment, which is subject to the same substantive analysis. FN12. Indeed, one district court in this Cir- cuit has found that Lawrence destroyed the jurisprudential foundation of Davis's line of Sixth Circuit cases, thus leaving the level of scrutiny an open question for lower courts to resolve. See Obergefell v. Wymyslo, 962 F.Supp.2d at 98687 (S.D.Ohio 2013). FN13. Some courts have construed the right to marry to include the right to re- main married. See, e.g., Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D.Ohio 2013). The logic is that Kentucky's laws operate to render Plaintiffs' marriage inval- id in the eyes of state law. This could amount to a functional deprivation of Plaintiffs' lawful marriage, and therefore a deprivation of liberty. See id. at 97779. FN14. Indeed, Justice Scalia stated that Windsor indicated the way the Supreme Court would view future cases involving same-sex marriage beyond mistaking. 133 S.Ct. at 2709 (Scalia, J., dissenting). FN15. Senate Bill 245 proposed the amendment to the Kentucky Constitution. The bill's sponsor, state senator Vernie McGaha said: Marriage is a divine institution designed to form a permanent union between man and woman.... [T]he scriptures make it the most sacred relationship of life, and nothing could be more contrary to the spirit than the notion that a personal agreement ratified in a human court sat- isfies the obligation of this ordinance.... [I]n First Corinthians 7:2, if you notice the pronouns that are used in this scrip- ture, it says, Let every man have his own wife, and let every woman have her own husband. The Defense of Marriage Act, passed in 1996 by Congress, defined marriage for the purpose of fed- eral law as the legal union between one man and one woman. And while Ken- tucky's law did prohibit the same thing, in '98 we passed a statute that gave it a little more strength and assured that such unions in other states and countries also would not be recognized here. There are similar laws across 38 states that express an overwhelming agreement in our coun- try that we should be protecting the insti- tute [sic ] of marriage. Nevertheless this institution of marriage is under attack by judges and elected officials who would legislate social policy that has already been in place for us for many, many years.... In May of this year, Massachu- setts will begin issuing marriage licenses to same-sex couples.... We in the legis- lature, I think, have no other choice but Page 16 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (189 of 518) to protect our communities from the de- secration of these traditional values.... Once this amendment passes, no activist judge, no legislature or county clerk whether in the Commonwealth or out- side of it will be able to change this fun- damental fact: the sacred institution of marriage joins together a man and a wo- man for the stability of society and for the greater glory of God. S. DEBATE, 108TH CONG., 2ND SESS. (Ky. 2004), ECF No. 386 at 1:00:301:05:10. Similarly, cosponsor state senator Gary Tapp proclaimed: For many years, Kentucky has had laws that define marriage as one man and one woman, and in 1998, the General As- sembly did strengthen those laws ensur- ing that same-sex marriages performed in other states or countries would not be recognized here.... While we're not pro- posing any new language regarding the institution of marriage in Kentucky, this pro-marriage constitutional amendment will solidify existing law so that even an activist judge cannot question the defini- tion of marriage according to Kentucky law.... [W]hen the citizens of Kentucky accept this amendment, no one, no judge, no mayor, no county clerk, will be able to question their beliefs in the tradi- tions of stable marriages and strong fam- ilies. Id. at 1:05:431:07:45. The final state senator to speak on behalf of the bill, Ed Worley, said that the bill was not inten- ded to be a discrimination bill. Id. at 1:26:10. However, he offered no other purpose other than reaffirming the his- torical and Biblical definition of mar- riage. See, e.g., id. at 1:26:201:26:50. One state senator, Ernesto Scorsone, spoke out against the constitutional amendment. He said: The efforts to amend the U.S. Constitu- tion over the issue of interracial mar- riage failed despite repeated religious ar- guments and Biblical references.... The proposal today is a shocking departure from [our constitutional] principles.... To institutionalize discrimination in our constitution is to turn the document on its head. To allow the will of the major- ity to forever close the door to a minor- ity, no matter how disliked, to any right, any privilege, is an act of political heresy.... Their status will be that of second-class citizens forever.... Discrim- ination and prejudices will not survive the test of time. Id. at 1:16:071:24:00. FN16. The Supreme Court in Lawrence v. Texas explained: Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its prin- ciples in their own search for greater freedom. 539 U.S. at 57879, 123 S.Ct. 2472. FN1. The applicant cites a potential issue of the applicability of Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). However, Baker dismissed for Page 17 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (190 of 518) want of a substantial federal question an action requesting the issuance of a same- sex marriage license, an issue that was not before the Court in our underlying case. W.D.Ky.,2014. Bourke v. Beshear --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) END OF DOCUMENT Page 18 --- F.Supp.2d ----, 2014 WL 556729 (W.D.Ky.) (Cite as: 2014 WL 556729 (W.D.Ky.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (191 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 3408024 (Colo.Dist.Ct.) (Trial Order) District Court of Colorado. Adams County Rebecca BRINKMAN and Margaret Burd Plaintiffs, v. Karen LONG and The State of Colorado, Defendants. and G. Kristian MCDANEIL-MICCIO, et. al., Plaintiffs, v. STATE OF COLORADO, et. al., Defendants. Nos. 13-CV-32572, 14-CV-30731. July 9, 2014. *1 Division: C Courtroom: 506 MDL Case No. 14MD4. Summary Judgment Order C. Scott Crabtree, Judge. Plaintiffs Rebecca Brinkman (Brinkman) and Margaret Burd (Burd) (collectively Adco Plaintiffs) filed a Motion for Summary Judgment (Adco Motion) on May 2, 2014. The State of Colorado (the State) filed a Cross-Motion for Summary Judgment (State Adco Motion) on May 2, 2014. Adams County Plaintiffs filed a Reply (Adco Response) on May 30, 2014. The State filed a Combined Response on May 30, 2014. Plaintiffs Kristian McDaniel-Miccio and Nan McDaniel-Miccio, Sandra Abbott and Amy Smart, Wendy Alfredsen and Michelle Alfredsen, Kevin Bemis and Kyle Bemis, Tommy Craig and Joshua Wells, James Davis and Christopher Massey, Sara Knickerbocker and Jessica Ryann Peyton, Jodi Lupien and Kathleen Porter and Tracey MacDermott and Heather Shockey (Denver Plaintiffs) filed a Motion for Summary Judgment (Denver Motion) in Denver County on May 2, 2014. The State filed its Motion for Summary Judgment (Denver State Motion) in Denver County on May 2, 2014. Denver Plaintiffs filed a Response on May 30, 2014. The State filed a Combined Response on May 30, 2014. An Amicus Brief was filed by the Alliance Defending Freedom on May 7, 2014. Governor Hickenlooper filed a Response (Hickenlooper Response) on May 30, 2014. The Court heard oral arguments of the parties on June 16, 2014. The Court, being fully informed finds and orders as follows: Procedural History Adams County Adco Plaintiffs filed their complaint on October 9, 2013. Karen Long, Adams Clerk and Recorder (Long), filed an answer on January 2, 2014. On December 13, 2014 the State filed an Unopposed Motion to Intervene which was granted on December 23, 2013. The State filed an answer on January 6, 2014. Long filed a motion to be excused from the proceedings on January 29, 2014, which was denied on February 27, 2014. On February 13, 2014 the parties filed a stipulation for a proposed case management order which was granted February 14, 2014. The Order provided for a briefing schedule for cross-motions for summary judgment and an opportunity for oral argument. The stipulation provided for the filing of affidavits to be responded to, if appropriate. On April 1, 2014 the parties filed a stipulation to amend the case management order to extend the briefing Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (192 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 schedule. Oral argument was set for June 2, 2014. On March 31, 2014 the State filed a Notice of Motion to Consolidate Multidistrict Litigation. The briefing proceeded in accordance with the agreed upon schedule and as set forth above. On May 2, 2014 the MDL Panel made a recommendation to the Chief Justice of the Colorado Supreme Court to consolidate the Denver and Adams County cases and that venue was proper in Adams County to be assigned to the undersigned District Court Judge. The Order also stayed further proceedings in the respective courts pending the assignment by the Chief Justice. On May 7, 2013 the Alliance Defending Freedom filed a Motion to Intervene and an Amicus Brief. On May 8, 2014 the Order from the Chief Justice consolidating the two cases into Adams County was filed. After motions practice, on May 16, 2014, the Court denied the motion to intervene, but permitted the amicus brief to be filed. By separate Order the Court indicated that it would not consider portions of the amicus brief. By agreement, the date for oral argument was changed to June 16, 2014. Denver County *2 Denver plaintiffs filed their complaint on February 19, 2014. Defendant Debra Johnson, Denver County Clerk and Recorder (Johnson), filed an answer on March 12, 2014. The State filed an Answer on April 2, 2014. Governor Hickenlooper filed an answer on April 2, 2014. The State also filed a Notice of Filing of Motion to Consolidate Multidistrict Litigation in Denver and Adams counties on April 2, 2014. As previously noted, the cases were ordered consolidated by the Chief Justice on May 8, 2014 and oral argument was set for June 16, 2014. The Parties Adco Plaintiffs Brinkman is a female and a resident of Adams County, Colorado. She wishes to marry her long-time partner, Burd, whom she loves and has lived with continuously since 1986. She and Burd are not related to each other and have not previously been married. 1 Burd is a female and a resident of Adams County, Colorado. She wishes to marry her long-time partner, Brinkman, whom she loves and has lived with continuously since 1986. 2 On October 30, 2013 Brinkman and Burd went to the marriage license desk at the office of the Adams County Clerk and Recorder and asked for a marriage license application. They were prepared to present the clerk with proof of their names, gender, address, social security numbers and dates and places of birth. They each presented their driver's license when requested and had sufficient funds to pay the fee for the marriage license. The deputy clerk advised them that they could not get married to each other because they were both female. She said they could only apply for and get a license for a civil union. They declined to obtain the civil union because it was not the same as marriage. 3 Denver Plaintiffs Denver Plaintiffs, Tracey MacDermott and Heather Shockey; Wendy and Michelle Alfredsen; Tommy Craig and Joshua Wells; Jodi Lupien and Kathleen Porter; and Christopher Massey and James Davis (Unmarried Plaintiffs), are each in a committed same-sex relationship and reside in Colorado. Each couple desires to enter into a marriage that is recognized as valid under Colorado law. They have each completed and signed an application for a marriage license and have attained the age of 18 years old, and have the ability to pay any applicable fees for a marriage license. The Unmarried Plaintiffs meet all of the statutory requirements for marriage, except they are same-sex couples. In February 2014 the Unmarried Plaintiffs appeared at the Denver Office of the Clerk and Recorder to apply for marriage licenses. A deputy of the Denver Clerk and Recorder declined to issue marriage licenses to the Unmarried Couples because they are same-sex couples and their licenses would not be valid because Colorado law does not recognize same-sex marriages. 4 Denver Plaintiffs Amy Smart and Sandra Abbott; Kevin and Kyle Bemis; Kris and Nan McDaniel-Miccio; and Sara Knickerbocker and Ryann Peyton (Married Plaintiffs) were each married in a state that permits same-sex marriage, are in Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (193 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 committed same-sex relationships and reside in Colorado. They have marriage certificates in the states where they were married. Each couple that was married out of state desires their marriage to be recognized as valid under Colorado law. 5 Denver Plaintiffs Amy Smart and Sandra Abbott; Wendy and Michelle Alfredsen; Jodi Lupien and Kathleen Porter; and Sara Knickerbocker and Ryann Peyton are raising children together. Denver Plaintiffs Christopher Massey and James Davis are expecting the birth of their first child in XX/XX/2014. 6 Karen Long *3 Long is the Adams County Clerk and Recorder. In her answer to the complaint she stated: Defendant, Adams County Clerk and Recorder, is a constitutional and statutory officer and has no authority to disregard Colorado law. Defendant takes no position on any substantive issue raised in this matter and will follow any order that this court deems proper. Since the Clerk and Recorder does not plan to actively defend this case, she does not plan to participate in any discovery or briefing and asks that she be excused from the requirements of Rule 16 and Rule 26 and be excused from attending future court dates that may be set in this case. The Clerk and Recorder will cooperate with any other party or the Court to the extent that she has relevant information that may be helpful to resolution of this case. 7 Debra Johnson Johnson is the Clerk and Recorder for the City and County of Denver. As the Clerk and Recorder she is responsible for complying with Colorado law and acts under color of state law when issuing marriage licenses. State of Colorado The State of Colorado is a state with its capital in Denver, Colorado. The State has enacted ordinances and policies that extend protections and benefits based upon, or otherwise recognize, marital status; however, relying on art. II, 31 of the Colorado Constitution and C.R.S. 14-2-104(1)(b), and 14-2-104(2), the State does not allow same-sex couples to marry or recognize the marriages of same-sex couples. John Hickenlooper Defendant John W. Hickenlooper, Jr., is Governor of the State of Colorado. He is responsible for upholding and ensuring compliance with the state constitution and statutes prescribed by the legislature, including Colorado's laws barring same-sex couples from marriage and refusing to recognize the valid out-of-state marriages of same-sex couples. Governor Hickenlooper also bears the authority and responsibility for the formulation and implementation of policies of the executive branch. 8 The Complaints Adco Plaintiffs The Adco Plaintiffs' complaint alleges that the first claim for relief is brought pursuant to 42 U.S.C. 1983, asserting that the Colorado statute and constitutional amendment prohibiting same-sex marriages constitute a form of gender discrimination. Further, the laws violate the Equal Protection and Due Process provisions of the Fourteenth Amendment to the United States Constitution. The second claim for relief seeks a declaration pursuant to the Colorado Uniform Declaratory Judgments Act that C.R.S. 14-2-104(1)(b) and (2) and art. II, 31 of the Colorado Constitution arbitrarily, capriciously and intentionally Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (194 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 discriminate against the Adco Plaintiffs. The Adco Plaintiffs sought a preliminary and permanent injunction mandating the Adams County Clerk and Recorder to issue a marriage license to the Adco Plaintiffs. Denver Plaintiffs The Denver Plaintiffs' first claim for relief alleged that Colorado's ban on marriage by same-sex couples deprives the Unmarried Plaintiffs their rights to due process. The second claim for relief alleged that Colorado's failure to recognize the marriage of the Married Plaintiffs violates their right to due process. The third claim for relief alleged that Colorado's ban on marriage by same- sex couples deprives the Unmarried Plaintiffs their rights to equal protection of the laws. The fourth claim for relief alleged that Colorado's failure to recognize the marriage of the Married Plaintiffs violates their right to equal protection of the laws. The fifth claim for relief sought a declaration that Colorado's laws violate the Denver Plaintiffs' constitutional rights. The Denver Plaintiffs sought an injunction precluding enforcement of the laws. The Challenged Laws Colorado's Statute *4 In 2000, the Colorado legislature amended the Uniform Marriage Act, C.R.S. 14-2-101 et seq., by adding paragraph (1)(b) to section 14-2-104. C.R.S. 14-2-104 reads as follows: (1) Except as otherwise provided in subsection (3) of this section, a marriage is valid in this state if: (a) It is licensed, solemnized, and registered as provided in this part 1; and (b) It is only between one man and one woman. (2) Notwithstanding the provisions of section 14-2-112, any marriage contracted within or outside this state that does not satisfy paragraph (b) of subsection (1) of this section shall not be recognized as valid in this state. (3) Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman: (a) Entered into prior to September 1, 2006; or (b) Entered into on or after September 1, 2006, that complies with section 14-2-109.5. The Colorado Constitutional Amendment At a general election on November 7, 2006 Colorado voters approved Amendment 43. By proclamation of the Governor on December 31, 2006, the proposal became art. II, 31 of the Colorado Constitution. It reads as follows: Only a union of one man and one woman shall be valid or recognized as a marriage in this state. Brief Summary of the Parties' Positions Adco Motion The right to marry the person of your own choosing is a fundamental right guaranteed by the due process clause of the Fourteenth Amendment. U.S. CONST. amend. XIV. The United States Constitution states that, The constitution and laws of the United States...shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (195 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 laws of any state to the contrary notwithstanding. U.S. CONST. art. VI, 2. Any state law which infringes on rights guaranteed by the United States Constitution is invalid under the Supremacy Clause of Article VI. U.S. CONST. art. VI, cl. 2. The Supreme Court of the United States in Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984) held that our federal constitution undoubtedly imposes constraints on the state's power to control the selection of one's spouse. A long and uninterrupted line of Supreme Court decisions recognizes that the right to marry is a fundamental right protected by both the substantive provisions of the Due Process Clause and by the Equal Protection Clause of the Fourteenth Amendment. See, e.g. Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., Brennan, J. and Warren, C.J., concurring) (The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.). Laws which abridge fundamental rights are subject to strict scrutiny analysis under the Due Process Clause. Such laws can only survive if the government demonstrates that they are narrowly tailored to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, 302 (1993). No state since U.S. v. Windsor, 133 S. Ct. 2675 (2013) has been able to justify its ban under even the rational basis test, much less under the strict scrutiny test. *5 The Enabling Act which authorized Colorado's admission to the Union empowered the citizens of Colorado to adopt a constitution and form a state government. Section 4 states, in part, that, provided that the constitution shall be republican in form ... and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence. The statute in question and the Constitutional Amendment violate the principles of the U.S. Constitution. The mandate that the Constitution neither knows nor tolerates classes among citizens is the starting point for any Equal Protection analysis. Same gender couples are similarly situated to opposite gender couples for purposes of Equal Protection analysis. A class-based Equal Protection challenge such as the one raised here generally requires a two-step analysis. The Court must first determine whether the challenged state action intentionally discriminates between groups of persons. Secondly, the Court must determine whether the state's intentional decision to discriminate can be justified by reference so some upright government purpose. SECYS, L.L.C. v. Vigil, 666 F.3d 678, 685-86 (10th Cir. 2012). Somewhere between the strict scrutiny test, which applies to suspect classifications such as race, alienage and religion, and the rational basis test, lies intermediate or heightened scrutiny, which applies to quasi-suspect classes. The intermediate level of scrutiny upholds state laws only if they are substantially related to an important governmental objective. Clark v. Jeter, 486 U.S. 456, 461 (1988). Substantially related means that the explanation must be exceedingly persuasive. United States v. Virginia, 518 U.S. 515, 533 (1996). Two primary factors must be satisfied for heightened scrutiny to apply: First, the group must have suffered a history of invidious discrimination. Second, the characteristics which distinguish the group's members must bear no relation to their ability to perform or contribute to society. A third consideration, used less often, is whether the law discriminates on the basis of immutable ... or distinguishing characteristics that define persons as a discrete group. A fourth consideration, also used less often, is whether the group is a minority or politically powerless. Adco Plaintiffs analyzed each of the four factors. The Adco Plaintiffs are members of a quasi-suspect class and the heightened scrutiny analysis must be applied. Even though Windsor did not specify that it had applied such a test, it did not apply a true rational basis review. See Windsor, 133 S. Ct. at 2718. Adco Plaintiffs noted several other decisions issued post-Windsor where the heightened scrutiny test had been adopted. It is entirely proper under this standard of review to consider the purpose behind any law which discriminates against a politically unpopular minority. Even if this Court declines to find that homosexual persons are a quasi-suspect class and applies intermediate scrutiny, it must still carefully consider not only the relationship between the marriage bans and the proffered reasons, but the legislative and political histories which led to their enactments as well as their actual purpose and effect. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (196 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 Like DOMA, the expressed purpose of the amendment is to discriminate against an unpopular minority by denying members of the minority access to a right which the United States Supreme Court has repeatedly said is fundamental. Under any reading of Romer v. Evans, 517 U.S. 620 (1996) and Windsor, these laws cannot stand constitutional scrutiny and must be stricken. The State's post-hoc attempt to justify its discrimination is implausible. As enunciated in the State's amicus brief in Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. 2014), the State claims that [T]he exclusive capacity and tendency of heterosexual intercourse to produce children, and the State's need to ensure that those children are cared for, provides that rational basis. Brief of the State of Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma and South Carolina as Amici Curiae in Support of Reversal at 13, Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. 2014) (hereinafter, State's Amicus Brief). Such an argument ignores that many heterosexual couples who marry without the intent or ability to naturally procreate children are nonetheless allowed to marry. This responsible procreation justification has been raised by many other states in defending their similar bans on same gender marriages and has failed in every case. Colorado law is devoid of any proscription on parenting by same gender couples and the Uniform Parentage Act, C.R.S. 19-4-101, expressly allows for two parents of the same gender. The State allows same gender couples to adopt children, to beget or give birth to children through artificial means or surrogacy and to retain custody after a failed heterosexual marriage. *6 The fact that the State has created two classes of legally recognized relationships, marriages and civil unions, is compelling evidence they are not the same. If civil unions were truly the same as marriages, they would be called marriages and not civil unions. If they were the same, there would be no need for both of them. In Kerrigan v. Comm'r of Public Health, 957 A.2d 407, 412 (Conn. 2008), the Court stated, [W]e conclude that in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constituted cognizable harm. The fact that Colorado denies same gender couples the same right to apply for federal benefits that it grants to opposite gender couples is a violation of the Equal Protection Clause. Denver Motion Colorado bans same-sex marriages in two ways. First, Colorado law prevents county clerks from issuing marriage licenses to same-sex couples (the Celebration Ban). Second, Colorado refuses to recognize same-sex marriages legally entered in other jurisdictions (the Recognition Ban) (collectively, the Marriage Bans). The Marriage Bans harm Denver Plaintiffs and other same-sex couples and their children. The inability of Unmarried Plaintiffs to be legally married in Colorado denies them certain rights and benefits that validly married opposite-sex couples enjoy. Children of same-sex couples are stigmatized and humiliated for being raised by the targeted same-sex couples. Colorado's Marriage Bans are unconstitutional under Windsor because they are based on prejudice. Therein the Supreme Court found that the state could demonstrate no legitimate purpose that could overcome the discriminatory purpose and effect of the federal marriage ban, and accordingly, struck it down. Voters considering Amendment 43 were told the amendment was necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado. COLO. CONST. art. II, 31. This constitutional amendment was adopted even though the legislature had already enacted a statutory provision with the identical effect. This historic fact evidences a clear intent to ensure that gay and lesbian Coloradans be preemptively denied rights under the Constitution. The Recognition Ban is invalid under Windsor because Colorado dramatically altered its inter- state relationships to discriminate only against same-sex couples. Same-sex couples legally married in the other states have their marriages dissolved and replaced with civil unions upon entry into the state. By operation of law alone, Colorado strips them of certain legal rights and protections as well as the dignity and status of immense import conferred upon them by marriage. Windsor, 133 S. Ct. at 2675. Since Windsor, every single court to evaluate same-sex marriage bans has found them unconstitutional, either under the federal or relevant state constitutions. The Equal Protection Clause of the U.S. Constitution's Fourteenth Amendment provides that no Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (197 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 state shall deny to any person within its jurisdiction the equal protection of its laws. U.S. CONST. amend. XIV, 1. The Supreme Court's instruction in Windsor that the states can no longer single out gay and lesbian relationships for second-class status makes it unnecessary to apply traditional heightened scrutiny under the Equal Protection Clause. Nevertheless, Supreme Court precedent requires this Court to apply that test to classifications like the Marriage Ban and the Celebration Ban, because they discriminate on the basis of both sexual orientation and gender. This heightened standard shifts the burden to the state to demonstrate that the ban is substantially related to an important government objective. Jeter, 486 U.S. at 461. In a footnote it was noted that the State has admitted that its justification cannot meet strict scrutiny. 9 When the four traditional criteria used by the Supreme Court to determine whether a particular group qualifies as a quasi-suspect class are applied to homosexuals, the conclusion is that classification based on sexual orientation requires at least heightened scrutiny. Denver Plaintiffs identified a plethora of courts which have now reached that same conclusion. The Denver Motion analyzed those four criteria and concluded that gays and lesbians are a suspect or semi-suspect class entitled to protection of heightened scrutiny. *7 The State cannot meet its burden under heightened scrutiny given that the Marriage Ban bears no rational relationship to any conceivable government interest. Although the Court should apply the heightened scrutiny test, the Marriage Ban lacks even a rational basis. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633. A state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). Every court to consider whether nearly identical marriage bans pass rational basis review following the Windsor decision has concluded that they do not. Tradition alone cannot form a rational basis for upholding the marriage ban. Heller v. Doe, 509 U.S. 312, 327 (1993). [T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Lawrence v. Texas, 539 U.S. 558, 577-78 (citing Bowers v. Hardwick, 478 U.S. 186, 204 (1986) (Blackmun, J., Brennan, J., Marshall, J., and Stevens, J., dissenting)). There can be no doubt that same-sex couples are equally equipped to raise healthy, happy children as opposite-sex couples. It is the State's policy to encourage same sex couples to foster and adopt children in the government's custody. The State's second conceivable rationale for the Marriage Bans related to children is that restricting the institution of marriage to opposite-gender couples will encourage potentially procreative couples to raise children produced by their sexual union together. State's Amicus Brief at 15. There is no logical reason to believe extending the marriage right to all couples would have this effect. As the Kitchen court explained, It defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Kitchen v. Herbert, 961 F.Supp.2d 1181, 1211 (D. Utah 2013). The State's Celebration Ban denies plaintiffs their fundamental right to marry. Denver Plaintiffs addressed a long line of cases declaring that the right to marry is a fundamental right. Marriage is also a fundamental right to marry the person of your choosing. Same-sex marriage is included within the fundamental right to marry. De Leon v. Perry, 975 F.Supp.2d 632, 660 (W.D. Tex. 2014). The history of Loving confirms that the fundamental right to marry cannot be defined in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons ... who historically have been denied the benefit of such rights. In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008). Colorado's Recognition Ban denies plaintiffs their right to remain married. [O]nce you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution. Obergefell v. Wymyslo, 962 F.Supp.2d 968, 973 (S.D. Ohio 2013). The Recognition Ban denies same-sex couples their fundamental right to travel. Like voting, the right to marry is a fundamental right and the Recognition Ban unconstitutionally penalizes the exercise of the right to travel Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (198 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 8 by forcing married couples to choose between moving to Colorado and remaining married. Defendants must show that the Marriage Bans are necessary to promote a compelling state interest and do[ ]so in the least restrictive manner possible. Romer, 882 P.2d at 1341. *8 Civil unions are a separate, second-class institution which does not confer the same benefits and protections as marriage. The history of our nation has demonstrated that separate is seldom, if ever, equal. Opinions of the Justices to the Senate, 802 N.E.2d 565, 569 (Mass. 2004). State Adco and Denver Motions 10 The State opened its Motion by declaring that what is at stake is marriage, not homosexuality. Individuals' commitment to love one another is the central purpose of marriage as a personal institution, but that is not the purpose of marriage as a governmental institution. Government marriage is important, but its purposes are more limited than the overall concept of marriage. Government's role in marriage is not about recognizing parties' love or conferring approval on an individual's choice of a companion. Government marriage is an attempt to deal with a problem, and one that has become worse in recent years: the creation of children by parents who are not committed to raising them. This case is not about homosexuality, and it is not even about marriage in general. It is about the narrower issue of governmental marriage, and the problem caused by uncommitted opposite-sex couples that it seeks to address. It is also about the courts' historic and wise recognition of two important principles: the danger of upsetting settled understandings and historical practices and the limited role the judiciary must play in a democratic society. Plaintiffs must convince the court not only that Colorado's marriage laws may be or even probably are unconstitutional they must prove it beyond any reasonable doubt, citing City of Greenwood Village v. Petitioners for the Proposed City of Centennial, 3 P.3d 427, 440 (Colo. 2000). Plaintiffs will argue that heightened scrutiny should apply to the question of same sex-marriage. Most laws do not trigger heightened scrutiny and are reviewed by courts only under the limited rational basis. All laws draw lines and treat people differently-the question is which lines or classifications are permissible and which are not. That means plaintiffs can prevail if they establish beyond a reasonable doubt that either sexual orientation is a suspect classification, or that the right to marry anyone of one's choosing is a fundamental right. As with most laws, Colorado's marriage laws could not survive if strict scrutiny were applied. This case turns on the level of scrutiny the Court decides to apply. The trilogy of cases, Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003) and United States v. Windsor, 133 S. Ct. 2675 (2013) gave the Supreme Court the opportunity to declare either that sexual orientation is a suspect classification, or same-sex marriage is a fundamental right, or both, but it flatly did not. At most these cases reaffirm the states' sovereign power to define and regulate marriage. Colorado's marriage laws memorialize its citizens' traditional perspective on marriage and the historically unquestioned principle that marriage is a one-man, one-woman institution. Windsor did not expand the scope of fundamental rights and it did not declare sexual orientation a suspect class. The Supreme Court's decision does not require states to repeal their own similar definitions of marriage and did not expand the scope of constitutionally protected fundamental rights. *9 It is well established that the only suspect classifications demanding heightened scrutiny under the Equal Protection Clause are race and related proxies such as national origin, religion and gender, often called a quasi-suspect class. Before Windsor every Federal Circuit rejected the argument that sexual orientation should receive heightened scrutiny. The Supreme Court's own cases, including Windsor, have never applied heightened scrutiny to this classification, instead applying rational basis review. Plaintiffs are simply not similar to opposite sex couples in all relevant respects when it comes to the governmental institution of marriage. The reason for the government to recognize marriage is not to recognize the love between the participants, but to encourage two people who might create and bring into society a child to remain committed to one another even if their personal Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (199 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 9 commitment cools. The argument that Colorado's marriage laws discriminate on the basis of gender fails. Federal and many state courts have rejected the argument that traditional marriage laws discriminate on the basis of gender, as opposed to sexual orientation. Defining marriage as the union of a man and a woman does not discriminate on the basis of sex because it treats men and women equally-each man or woman may marry one person of the opposite sex and each man or woman is prohibited from any other marital arrangement. If a statute does not abridge a fundamental right, it will withstand judicial scrutiny if it bears a reasonable relation to a legitimate state interest. Washington v. Glucksberg, 521 U.S. 702, 722 (1997). Loving does not open the door to same-sex marriage, but affirms that marriage is a traditional institution subject to the State's police powers. Instead, plaintiffs must rely on the Loving court's statement that Virginia's law also violates the Due Process Clause because marriage is a fundamental civil right. The one paragraph devoted to Due Process recognized only that race cannot be used as a basis for infringing on the fundamental right to marry. Colorado's marriage laws were not borne of hatred, animus or supremacy; rather they stem from the traditional view that marriage is linked to procreation and biological kinship. Throughout Colorado's existence, marriage as a one-man, one-woman institution has been a foregone conclusion. Although same-sex relationships are a basic and intimate exercise of personal autonomy, same-sex governmental marriage is not deeply rooted in Colorado's history and traditions, or the Nation's for that matter. The right to marry someone of the same sex is not a liberty interest so rooted in the traditions and conscience of our people as to be ranked as fundamental. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Colorado, like many other states, has placed restrictions on those who may marry by adopting laws proscribing certain people from marrying despite their love and commitment. Legal precedent requires the application of the rational basis test. Rational basis is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). The laws must be given a strong presumption of validity. Heller, 509 U.S. at 320. The law must be upheld so long as there is a plausible policy reason for the classification. Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). Laws should not be overturned unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [classifications] were irrational. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000). *10 Colorado has a rational basis in seeking to encourage social institutions that help avoid the social problems of children being born and raised without both parents around to raise them. The traditional institution of marriage serves the state's important governmental interest in discouraging the creation of children through those relationships outside the optimal environment for children to be born into and raised to adulthood. Colorado has numerous laws based on the interest of encouraging mothers and fathers to be responsible parents to their children whenever possible. But how to help raised children whose biological parents have failed to take care of them is not the problem that government marriage aims to mitigate. The problem is, again, that opposite-sex couples are apt to create such children, and left to their own devices they are not always as committed to long-term parenting as society wants and needs. Government marriage is meant to try to fight the instinct to create children without remaining committed to their upbringing into adulthood. Colorado has many other rational bases for continuing to adhere to the traditional marriage structure. The value of gender diversity in parenting; encouraging adequate reproduction for society to support itself; and promoting stability and responsibility in marriages between mothers and fathers for their children's sake. Amicus Brief of Alliance Defending Freedom The Amicus Brief tracked many of the same arguments and legal authority cited by and relied upon by the State. As previously noted in the Court's Order of May 30, 2014: Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (200 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 10 There were approximately 35 separate publications, treatises, articles, books and other materials referenced within the Amici brief. The full text of these materials was not attached and only snippets or paraphrases were provided. The Court has no intention of retrieving any of the articles, books or materials for reading. Inasmuch as only select phrases were referenced, there is no way to determine for certain that any of the materials were addressed to the interpretation of the law or the lawmaking process. The titles of most of the publications, however, clearly suggest that they are addressed to sociological and moral issues involved in marriage, divorce and adolescents. The Court finds that the publications, studies and articles cited in the Amici brief are not legislative facts and will not be considered in ruling on the cross-motions for summary judgment. Adco Response The State argued that the standard for review for plaintiffs' Equal Protection claims is the rational basis test. 11 Plaintiffs believe that heightened Equal Protection scrutiny is appropriate. The State's claims that no Circuit Court of Appeals has applied heightened scrutiny to classification based on sexual origination, was based on cases handed down before the Windsor decision. In the Windsor opinion in the Second Circuit, the court held that our conclusion [is] that homosexuals compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect ... [.] Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012). When the Supreme Court affirmed the judgment of the Second Circuit, it did not comment on this holding, much less disapprove of it. Adco Plaintiffs addressed the line of cases addressing the heightened scrutiny standard. Although Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not representative of deferential review. Far from affording the statute the presumption of validity, Windsor found DOMA unconstitutional because no legitimate purpose overcomes the purpose and effect to disparage and to injure. Windsor, 133 S. Ct. at 2696. Even if this Court declines to find that homosexual persons are a quasi-suspect class and applies true intermediate scrutiny, it must still carefully consider not only the relationship between the marriage bans and the proffered reasons, but the legislative and political histories which led up to their enactment as well as their actual purpose and effect. *11 The legislative record is now on file and demonstrates that the purpose and intent of Colorado's ban on same gender marriage was solely intended to ban same gender marriage and thus to deny same gender couples the same right to marry the legislature gave to heterosexual couples. No other purpose appears anywhere in the legislative records. It was not enacted to protect children or foster an ideal child-rearing environment. In Windsor, the Supreme Court noted, [T]he Constitution's guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group can justify disparate treatment of that group ... In determining whether a law is motivated by an improper purpose or animus, [d]iscrimination of an unusual character especially requires careful consideration. Id. at 2693. A fundamental requirement of the Equal Protection Clause is that all laws must be enacted to further a legitimate governmental purpose and not to disadvantage a particular group. When the primary purpose and effect of a law is to harm an identifiable group, the fact that the law may also incidentally service some other neutral governmental interest cannot save it from unconstitutionality. Obergefell, 962 F.Supp.2d at 995. When a law has the purpose and effect of imposing legal disabilities on same gender couples, courts may not uncritically defer to the state's proffered justification, but must determine whether any justification exists that is sufficiently strong to justify the harms imposed on same gender couples and their children. SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 482-83 (9th Cir. 2014). Under the rational basis test, a state law does not violate the Equal Protection Clause if the statutory classification is rationally related to a legitimate governmental purpose. Heller, 509 U.S. at 320. The State cannot show that the marriage ban is rationally related to its justification. The State cannot rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. City of Cleburne, 473 U.S. at 447. Every state and federal court which has applied the rational basis test to marriage exclusion laws post-Windsor has found that the laws do not satisfy even the deferential test because there is no logical connection between the stated purpose and the effect of the laws. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (201 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 11 The State has pronounced that this case is about the narrower issue of government marriage, and the problem caused by uncommitted opposite-sex couples that it seeks to address. The State fails to explain how excluding same gender couples from government marriage will encourage opposite gender, procreative couples to marry each other before having children. This argument is the legal equivalent of grasping at straws. The State's argument ignores the fact under its definition of government marriage, it still allows, and always has allowed, couples to marry who have neither the intent nor the ability to procreate. Unwed couples are as free to procreate after the Marriage Bans were enacted as they were before. The State's definition of marriage flies in the face of Supreme Court decisions defining the real meaning of marriage. Every case since Windsor to address the question of same gender marriage has held that marriage is not a child-centric institution, since infertile men and women and couples who choose not to procreate are allowed to marry. Denver Response The State has offered no support for its post hoc definition of marriage. The State has attempted to create a new definition of marriage, untethered to history or common sense. Civil marriage is far broader than the State's narrow definition. As held in Griswold: Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. *12 Griswold, 381 U.S. at 486. The Marriage Bans cannot withstand Equal Protection scrutiny under any standard of review. As the Ninth Circuit has now recognized, the Supreme Court's decision in Windsor, while not expressly using the phrases heightened scrutiny or suspect class, plainly applied a more exacting analysis to the Federal Marriage Ban than traditional rational basis review. SmithKline, 740 F.3d at 483. Because the Marriage Bans single out individuals for differential treatment based on a suspect classification, they merit heightened scrutiny. Same-sex couples meet the traditional four part test for membership in a suspect class. [C]lassifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Frontiero v. Richardson, 411 U.S. 677, 688 (1973). In trying to avoid application of heightened scrutiny, the State claims that heightened scrutiny does not apply because the Marriage Bans do not discriminate on the basis of sex because they treat [ ] men and women equally. This argument has been rejected by the Supreme Court in Loving. There is no rational relationship between any legitimate governmental purpose and the Marriage Bans. According to the State, the sole purpose of civil marriage is to discourage procreating without commitment and since same sex couples do not significantly contribute to this problem, the state's use of marriage to help mitigate it sensibly does not include them. The Marriage Ban exacerbates the very problem the State purportedly seeks to solve by insisting that the children of same-sex couples continue to be denied the stability and dignity of their parents' marriage. Further, the State's asserted interest is belied by its own laws. No state, including Colorado, restricts marriage to the procreative and the fertile. The State has misrepresented the holding and history of Loving. Seven federal courts have relied on Loving in finding that marriage bans, like the ones at issue here, violate same-sex couples' fundamental right to marry. Further, Loving is not limited to racial issues. Instead, it went farther and held that the laws violated the Loving couple's right to marry. The Supreme Court has stated that, Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance to all individuals. Zablocki v. Redhail, 434 U.S. 374, 383 (1978). Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (202 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 12 Plaintiffs are not seeking a boundary-less right to marry whomever they may desire, as claimed by the State. Instead, plaintiffs seek to exercise the same right enjoyed by opposite-sex couples, the right to choose one's spouse subject to reasonable restrictions. The State's notation of laws limiting marriage highlights the difference between legitimate limitations on marriage and the Marriage Bans. The Marriage Bans target same-sex couples based on their sexual orientation. The Hickenlooper Brief *13 While the State's Attorney General is defending the same-sex marriage ban, the Governor is doubtful that Amendment 43 and related statutes are constitutional based upon evolving jurisprudence. This dispute inevitably may require the Court to undertake an analysis about what level of scrutiny to apply under the Due Process and Equal Protection Clauses of the United States Constitution. Regardless of the level of scrutiny that is applied-no state ban on same-sex marriage has survived in the wake of Windsor. Rather than weighing in on these issues which have been thoroughly addressed by the parties, the Governor's brief addressed whether the four claims brought against the Governor pursuant to 42 U.S.C. 1983 should stand. Plaintiffs are required to show that the Governor personally participated in the deprivation of their civil rights. First, a government official must be exercising some grant of power from the state to be held liable. The second part of the inquiry focuses on whether a party is a state actor. The Governor does not contest that he is a state actor, but the missing piece is whether he has exerted any power granted to him to deny plaintiffs their civil rights. Federal courts have required some level of personal participation for a governor to be held liable in his official capacity under 42 U.S.C. 1983. The Governor did not direct the clerk and recorders to act in a certain manner. Likewise the Governor does not participate in the enforcement of Colorado's marital laws. The Governor's generalized duty to enforce the laws is insufficient to attach liability under 42 U.S.C. 1983 for Colorado's same-sex marriage ban. The State's Combined Response One thing holds true-marriage remains a matter within the State's sovereign power to regulate and, consequently, the states may, and do, limit who may marry who based on a number of factors. With the growing number of lower court decisions that have struck other states' laws that either ban or do not recognize same-sex marriage, a temptation to simply declare Colorado's marriage laws unconstitutional may exist. Courts are not arbiters of moral and political debates, which this case presents. Before this Court wades into the moral and political debate inherent in this lawsuit, consider the following: Can a rational person believe that redefining marriage, so as to belittle it to no more than a status symbol or congratulatory certificate, could damage the institution of marriage and its role in helping to encourage heterosexual couples to stay together to raise the children they create? Plaintiffs relied heavily on an isolated portion of the Windsor decision to support their argument that Colorado's marriage laws are designed to deprive same sex couples full protection and benefit of the law and of social recognition and serve to injure, stigmatize, demean and degrade same-sex couples. Colorado has no obligation to recognize marriages that contradict its strong policy interests. The full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events with it, the conflicting status of another state. Nevada v. Hall, 440 U.S. 410, 423-24 (1979). The State again argued that the sexual orientation is not a suspect class requiring application of heightened scrutiny. The Supreme Court has never concluded that sexual orientation constitutes a quasi-suspect or suspect class. The rational basis review should be applied and the laws upheld. Colorado's definition of marriage supports conceivable and legitimate state ends. The State has an interest in maximizing the number of children that are raised by their biological parents. The echo-chamber of cases coming after Windsor all share the same flaw of misreading the Supreme Court's Windsor opinion, and often, engaging in taking sides in the moral and social debate about marriage that has little to do with relevant constitutional claims. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (203 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 13 If government marriage is truly about love and commitment, then the message communicated by the State will undermine the role of marriage as a prophylactic for inevitable sexual relations between opposite-sex couples that are naturally capable of producing children. Marriage as an institution based on emotion will also communicate that marriages can be discarded later in time, due to nothing more than the emotional whims of the parties to the marriage. Plaintiffs have no answer to Glucksberg. Glucksberg remains the binding, definitive rule that this Court must determine if the claimed right is (1) objectively, deeply rooted in this Nation's history and traditions, and (2) the right is carefully described. Issues *14 1. Are the Challenged Laws 12 unconstitutional? a. Do the Challenged Laws violate plaintiffs' due process rights? b. Do the Challenged Laws violate plaintiffs' equal protection rights? 2. Should civil union survive as a separate but equal institution? 3. Should Denver Plaintiffs' claims against Governor Hickenlooper be dismissed? 4. Should the Court issue a stay of its ruling? Principles of Law C.R.C.P. 56(c): Summary Judgment and Rulings on Questions of Law- Motion and Proceedings Thereon The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Standard of Review Summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Peterson v. Halsted, 829 P.2d 373, 376 (Colo. 1992). The court must base its evaluation of genuine issues of material fact on the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. C.R.C.P. 56(c). The trial court may not assess witness credibility and the weight of evidence when determining a motion for summary judgment. Anderson v. Vail Corp., 251 P.3d 1125, 1127 (Colo. App. 2010) (quoting Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714, 718 (Colo. 1987)). The moving party bears the initial burden of establishing that no genuine issue of material fact exists; any doubt should be resolved in favor of the non-moving party. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo. 1995). This must be an affirmative demonstration of an absence of evidence in the record. Continental Airlines, Inc. v. Keenan, 731 P.2d 708, n. 2 (Colo. 1987). Once the moving party meets its burden, the opposing party then must establish that there is a genuine issue for trial. Id. All doubts as to the existence of a triable issue of fact must be resolved against the moving party. Martini v. Smith, 42 P.3d 629, 632 (Colo. 2002). Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (204 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 14 Stipulation and Agreement of the Parties On page 2 of the Adco Motion it was recited as follows: The parties have stipulated that this case may be decided on summary judgment because there are no disputed issues of material fact and because the questions it presents are questions which arise under the Constitutions and laws of the United States and the State of Colorado. C.R.C.P. 56. In a footnote on the first page of the State's Adco Motion it was recited, inter alia, that: Because both cases are legally and factually similar, and no material facts are disputed, the State is filing identical summary judgment briefs in the two cases in the interest of judicial efficiency. Analysis 1. Are the Challenged Laws unconstitutional? a. Do the Challenged Laws violate plaintiffs' due process rights? *15 The [Due Process] Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Glucksburg, 521 U.S. at 720. As Justice Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846-47 (1992) (quoting Whitney v. California, 274 U.S. 357, 373 (1927)). As we stated recently in Flores, the Fourteenth Amendment forbids the government to infringe ... fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Glucksberg, 521 U.S. at 721 (quoting Flores, 507 U.S. at 302 (1993). Marriage as a fundamental right Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. Loving v. Virginia, 388 U.S. 1, 12 (1967) (citing Skinner v. State of Oklahoma, 316 U.S. 535, 541 (1942)). The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family-marriage, e.g., Zablocki v. Redhail, supra; childbirth, e.g., Carey v. Population Services International, supra; the raising and education of children, e.g., Smith v. Organization of Foster Families, supra; and cohabitation with one's relatives, e.g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (205 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 15 necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Roberts v. U.S., 468 U.S. 609, 619-20 (1984). Although (t)he Constitution does not explicitly mention any right of privacy, the Court has recognized that one aspect of the liberty protected by the Due Process Clause of the Fourteenth Amendment is a right of personal privacy, or a guarantee of certain areas or zones of privacy. This right of personal privacy includes the interest in independence in making certain kinds of important decisions. While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage *16 Carey v. Population Services Intern. 431 U.S. 678, 684-85 (1977) (citations omitted). In the first of these the supreme court of Kentucky said that marriage was more than a contract; that it was the most elementary and useful of all the social relations; was regulated and controlled by the sovereign power of the state, and could not, like mere contracts, be dissolved by the mutual consent of the contracting parties, but might be abrogated by the sovereign will whenever the public good, or justice to both parties, or either of the parties, would thereby be subserved; that being more than a contract, and depending especially upon the sovereign will, it was not embraced by the constitutional inhibition of legislative acts impairing the obligation of contracts. In the second case the supreme court of Rhode Island said that marriage, in the sense in which it is dealt with by a decree of divorce, is not a contract, but one of the domestic relations. In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make. Maynard v. Hill, 125 U.S. 190, 212 (1888). The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected. Griswold, 381 U.S. at 495. This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974). The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment: No state ... shall deprive any person of life, liberty or property without due process of law. While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry [...] Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (206 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 16 Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Bankruptcy is hardly akin to free speech or marriage or to those other rights, so many of which are imbedded in the First Amendment, that the Court has come to regard as fundamental and that demand the lofty requirement of a compelling governmental interest before they may be significantly regulated. U.S. v. Kras, 409 U.S. 434, 446 (1973). But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. *17 Skinner, 316 U.S. at 541. Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, [...] rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (other citations omitted). Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Our precedents have respected the private realm of family life which the state cannot enter. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Casey, 505 U.S. at 851 (citations omitted). In Planned Parenthood [ ], the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Lawrence, 539 U.S.at 573-74 (2003) (quoting Casey, 505 U.S. at 851). The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution [.] See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ([D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals.); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) (The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.); Skinner v. Oklahoma ex. rel. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (207 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 17 Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill,125 U.S. 190, 205, 211 (1888) (characterizing marriage as the most important relation in life and as the foundation of the family and society, without which there would be neither civilization nor progress.). *18 While the right to marry is not explicitly mentioned in the text of the Constitution, this right is nevertheless protected by the guarantee of liberty under the Due Process Clause. De Leon v. Perry, 975 F.Supp.2d 632, 657-58 (W.D. Tex. 2014). The right to marry is an example of a fundamental right that is not mentioned explicitly in the text of the Constitution but is nevertheless protected by the guarantee of liberty under the Due Process Clause. The Supreme Court has long emphasized that the right to marry is of fundamental importance. In Maynard v. Hill, the Court characterized marriage as the most important relation in life and as the foundation of the family and society, without which there would be neither civilization nor progress. 125 U.S. 190, 205, 211 (1888). In Meyer v. Nebraska, the Court recognized that the right to marry, establish a home and bring up children is a central part of the liberty protected by the Due Process Clause. 262 U.S. 390, 399 (1923). And in Skinner v. Oklahoma ex rel. Williamson, the Court ruled that marriage is one of the basic civil rights of man. 316 U.S. 535, 541 (1942). In more recent cases, the Court has held that the right to marry implicates additional rights that are protected by the Fourteenth Amendment. For instance, the Court's decision in Griswold v. Connecticut, in which the Court struck down a Connecticut law that prohibited the use of contraceptives, established that the right to marry is intertwined with an individual's right of privacy. 381 U.S. 479, 486 (1965). Kitchen, 961 F.Supp.2d at 1197. The United States Supreme Court initially discussed the constitutional right to marry as an aspect of the fundamental substantive liberty protected by the due process clause of the federal Constitution (see Meyer v. Nebraska, 262 U.S. 390, 399 (1923)), but thereafter in Griswold v. Connecticut, 381 U.S. 479, 485 (1965), the federal high court additionally identified the right to marry as a component of a right of privacy protected by the federal Constitution. In re Marriage Cases, 183 P.3d at 420. There is no question that the right to marry is a fundamental right. What right to marry is at stake? The Court heartily endorses the recent holding by the Tenth Circuit in Kitchen v. Herbert that the marital right at issue was never framed as the right to interracial marriage in Loving or the prisoner's right to marriage in Turner or the dead-beat dad's right to marriage in Zablocki. See Kitchen, 961 F.Supp.2d at 1200. Instead, the Supreme Court has repeatedly utilized the term fundamental right to marry without any limitations. The Court rejects the State's attempt to too narrowly describe the marital right at issue to the right to marry a person of the same sex. The Court also concurs with the growing number of courts which have held that the fundamental right to marry includes the right to remain married. See Kitchen, 961 F.Supp.2d at 1201; Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999, at *13 (D. Idaho May 13, 2014); De Leon, 975 F.Supp.2d at 654; Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *7 (S.D. Ohio Apr. 14, 2014); Obergefell, 962 F.Supp.2d at 978. Are the Marriage Bans necessary to promote a compelling state interest? Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (208 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 18 *19 When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Zablocki, 434 U.S. at 388 (citations omitted). The State has variously described its interest in maintaining the Marriage Bans as follows: It is an attempt to deal with a problem, and one that has become worse in recent years: the creation of children by parents who are not committed to raising them. State's Motions, p. 6. So again, Government Marriage, as distinguished from personal or religious or familial marriage, is not about recognizing or congratulating individuals who love each other. It is about avoiding the problems that society encounters when childbirth outside monogamous relationships becomes widespread. Same-sex couples, biologically speaking, simply cannot contribute to this problem. State's Motions, p.7. As noted above and explained more below, the animating reason for the government to recognize marriage is not to recognize the love between the participants, but to encourage two people who might create and bring into society a child to remain committed to one another even if their personal commitment cools. State's Motions, p. 19. The traditional institution of marriage serves the state's important government interest in discouraging the creation of children through those relationships outside the optimal environment for children to be born into and raised to adulthood. State's Motions, p. 33. Government marriage is meant to try to fight the instinct to create children without remaining committed to their upbringing into adulthood. This problem is not caused by same-sex couples, at least not to any significant extent, and the state thus need not extend this part of its solution to them. State's Motions, p. 36. The state has an interest in maximizing the number of children that are raised by their biological parents. State's Combined Response, p. 19. The avowed State interest can be distilled down to encouraging procreation and marital commitment for the benefit of the children. The problem with this post-hoc explanation is that it utterly ignores those who are permitted to marry without the ability or desire to procreate. It is merely a pretext for discriminating against same-sex marriages. This recently fabricated state interest is also belied by legislative history which accompanied the enactment of the 2000 amendments to C.R.S. 14-2-104. On February 21, 2000, at the second reading on HB 1249, Rep. Mark Paschall stated, What we're opening the door here to, and even though the issue is being framed around same sex relationships, we're talking about opening the door to polygamy, polyandry, and polyamorous relationships. Later in the debate, Rep. Paschall stated that [t]his Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (209 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 19 is going to allow incestuous relationships. We don't want to be allowing any kind of solemnized relationship in the State of Colorado, and that's what this is going to do. Rep. Doug Dean stated, [b]ut where I think it's important for me as a legislator to say that we don't want to recognize same-sex unions, same-sex marriages, because we believe that it contributes to the decay of society ... it will be harmful to our state. Out of more than a dozen comments on the bill, only one comment was made about marriage providing a stable environment for children to be brought into the world and raised. But that same senator, John Andrews completed his comments noting that, marriage, as an institution, thousands of years old, I would argue, is strengthened, when we maintain that traditional definition. *20 Likewise, when Amendment 43 was being submitted to the voters, the Amendment 43 Blue Book told voters that one reason to pass Amendment 43 was to preserv[e] the commonly accepted definition of marriage. Marriage as an institution has historically consisted of one man and one woman. This notion of responsible procreation has been raised many times before and been met without success. See, e.g., Perry v. Brown, 671 F.3d 1052, 1089 (9th Cir. 2012), vacated and remanded, Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013); Perry v. Schwarzenegger, 704 F. Supp.2d 921, 999 (N.D. Cal. 2010); Kitchen, 961 F.Supp.2d at 1211-12; De Leon, 975 F.Supp.2d at 653; DeBoer v. Snyder, 973 F.Supp.2d 757, 768 (E.D. Mich. 2014); Bishop v U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1291 (N.D. Okla. 2014); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL 2054264, at *13 (D. Or. May 19, 2014); Griego v. Oliver, 316 P.2d 865, 886 (N.M. 2013). To the extent the State's interest is in preserving the historical tradition of one-man one-woman marriage, it cannot survive any level of scrutiny. Proponents suggest that these state interests in tradition arise from a legitimate desire to discourage individuals from abusing marriage rights by marrying for the sole purpose of qualifying for benefits for which they would otherwise not qualify ... The [a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. Heller v. Doe, 509 U.S. 312, 326 (1993). This proffer lacks any rational basis. Bostic v. Rainey, 970 F. Supp. 2d 456, 474 (E.D. Va. 2014) (citation omitted). The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice STEVENS came to these conclusions: Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons. Justice STEVENS' analysis, in our view, should have been controlling in Bowers and should control here. Lawrence, 539 U.S. at 577-78 (citations omitted). The Court holds that the State does not have a sufficiently important/ compelling interest in forbidding same-sex marriages or nullifying Colorado residents' valid out-of-state same-sex marriages. The Marriage Bans are unconstitutional because they violate plaintiffs' due process rights. b. Do the Challenged Laws violate plaintiffs' equal protection rights? The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of its laws. U.S. CONST. amend. XIV, 1. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (210 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 20 Instead, the Equal Protection Clause is a more particular and profound recognition of the essential and radical equality of all human beings. It seeks to ensure that any classifications the law makes are made without respect to persons, that like cases are treated alike, that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference. *21 Vigil, 666 F.3d at 684-85 (quoting Enquist v. Oregon Dep't of Agric., 553 U.S. 591, 601 (2008)). In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, U.S. Const., Amdt. 14, 1, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973); cf. Lyng v. Automobile Workers, 485 U.S. 360, 370, (1988). Classifications based on race or national origin, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967), and classifications affecting fundamental rights, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 672 (1966), are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. Jeter, 486 U.S. at 461. To withstand intermediate scrutiny, a classification must be substantially related to an important government interest. Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L.Ed.2d 465 (1988). Substantially related means that the explanation must be exceedingly persuasive. United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 135 L.Ed.2d 735 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S. Ct. 3331, 73 L.Ed.2d 1090 (1982)). The justification must be genuine, not hypothesized or invented post hoc in response to litigation. Id. Windsor, 699 F.3d at 185, cert. granted, 133 S. Ct. 786 (2012) and aff'd, 133 S. Ct. 2675 (U.S. 2013), cert. denied, 133 S. Ct. 2884 ( 2013), cert. denied, 133 S. Ct. 2885 (2013). The Court has previously found that the State's professed governmental interest was a mere pretext for discrimination against same-sex marriages created post hoc in response to litigation. Thus, the Marriage Bans cannot even pass muster under the rational basis analysis. The sole basis for precluding same-sex marriage is self-evident-the parties are of the same sex and for that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples. The Court holds that the Marriage Bans are unconstitutional because they violate plaintiffs' equal protection rights. 2. Should civil union survive as a separate but equal institution? Having found that the Marriage Bans are unconstitutional, it would seem that the continuation of civil unions is a moot issue. Nevertheless, the Court will analyze Colorado's civil unions as it may bear on a legitimate alternative to civil marriage. The general assembly declares that the public policy of this state, as set forth in section 31 of article II of the state constitution, recognizes only the union of one man and one woman as a marriage. The general assembly declares that the purpose of this article is to provide eligible couples the opportunity to obtain the benefits, protections, and responsibilities afforded by Colorado law to spouses consistent with the principles of equality under law and religious freedom embodied in both the United States constitution and the constitution of this state. The general assembly declares that a second purpose of the act is to protect individuals who are or may become partners in a civil union against discrimination in employment, housing, and in places of public accommodation. The general assembly further finds that the general assembly, in the exercise of its plenary power, has the authority to define other arrangements, such as a civil union between two unmarried persons regardless of their gender, and to set forth in statute any state-level benefits, rights, and protections to which a couple is entitled by virtue of entering into a civil union. The general assembly finds that the Colorado Civil Union Act does not alter the public policy of this state, which recognizes only the union of one man and one woman as a marriage. The general assembly also declares that a third purpose Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (211 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 21 in enacting the Colorado Civil Union Act is to state that Colorado courts may offer same-sex couples the equal protection of the law and to give full faith and credit to recognize relationships legally created in other jurisdictions that are similar to civil unions created by this article and that are not otherwise recognized pursuant to Colorado law. *22 C.R.S. 14-15-102: Civil Unions. The dissimilitude between the terms civil marriage and civil union is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. In re Opinions of the Justices to the Senate, 802 N.E.2d at 570. The fact is that those in a civil union do not and cannot obtain the same benefits and protections of federal law as married couples including filing joint tax returns, Family Medical Leave Act benefits, and facing loss of social security and veterans benefits. If civil unions were somehow the equivalent of marriage, there would be no real need for this second tier relationship. The State paid only lip-service to the plaintiffs' arguments that civil unions were not unlike the separate but equal black and white educational systems. 13 Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered; see part V A of this opinion; we cannot discount the plaintiffs' assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. In other words, [b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as real marriage, that such lesser relationships cannot have the name of marriage. Kerrigan, 957 A.2d at 417. The Court finds that confining same-sex couples to civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans. 3. Should Denver Plaintiffs' claims against Governor Hickenlooper be dismissed? Denver Plaintiffs have asserted four claims for relief against Governor Hickenlooper based on 42 U.S.C. 1983-due process and equal protection claims for denying Unmarried Plaintiffs from getting married and due process and equal protection claims for not recognizing Married Plaintiffs' out-of-state marriages. According to Denver Plaintiffs' complaint: Article IV, section 2 of the Colorado Constitution states: The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed. He is responsible for upholding and ensuring compliance with the state constitution and statutes prescribed by the legislature, including Colorado's laws barring same-sex couples from marriage and refusing to recognize the valid out-of-state marriages of same-sex couples. Governor Hickenlooper also bears the authority and responsibility for the formulation and implementation of policies of the executive branch. Governor Hickenlooper is a person within the meaning of 42 U.S.C. 1983 and was acting under color of state law at all times relevant to this complaint. Governor Hickenlooper's official residence is in the City and County of Denver, Colorado. He is being sued in his official capacity. *23 Paragraph 85 of the Denver Plaintiffs' complaint avers that: As Colorado's Governor and chief executive officer, defendant Hickenlooper's duties and actions to enforce Colorado's exclusion of same-sex couples from marriage, including those actions taken pursuant to his responsibility for the policies and actions of the executive branch relating to, for example and without limitation, health insurance coverage, vital records, tax Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (212 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 22 obligations, and state employee benefits programs, violate plaintiffs' fundamental right to marry; fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association; and the fundamental right to travel under the Fourteenth Amendment to the United States Constitution. Defendants similarly argue that the section 1983 damages claim against Hickenlooper and Kelley should be dismissed because they have no personal involvement in the alleged constitutional deprivations, and there is no supervisory liability under section 1983. Once again, Defendants are correct. For the reasons discussed above, Plaintiffs have not plead or otherwise shown how Defendants Hickenlooper and Kelley have had any personal involvement in the enforcement of the RES. See Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997) (Individual liability under 1983 must be based on personal involvement in the alleged constitutional violation.). Am. Tradition Inst. v. Colorado, 876 F. Supp. 2d 1222, 1239-40 (D. Colo. 2012). Denver Plaintiffs have only alleged a generalized oversight of matters relating to marriage in the State of Colorado. Here, the Oklahoma officials' generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce. See Women's Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir. 2003) (Where the enforcement of a statute is the responsibility of parties other than the governor (the cabinet in this case), the governor's general executive power is insufficient to confer jurisdiction.); see also Waste Mgm't. Holdings, Inc. v. Gilmore, 252 F.3d 316, 330-31 (4th Cir. 2001) (concluding governor's general duty to enforce the laws of Virginia insufficient when he lacks a specific duty to enforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th Cir. 2001) (en banc) (constitutional challenge to state tort statute against Governor and Attorney General not viable under the Ex Parte Young doctrine because no enforcement connection existed between Governor or Attorney General and the statute in question); 1st Westco Corp. v. Sch. Dist. of Phila.,6 F.3d 108, 112-13, 116 (3d Cir. 1993) (If we were to allow [plaintiffs] to join ... [the State officials] in this lawsuit based on their general obligation to enforce the laws ..., we would quickly approach the nadir of the slippery slope; each state's high policy officials would be subject to defend every suit challenging the constitutionality of any state statute, no matter how attenuated his or her connection to it.). *24 Bishop, 333 F.App'x at 365. The Court has now declared the Marriage Bans unconstitutional. Although it is likely that the Marriage Bans will remain in place until further judicial scrutiny by a superior court of law, the Court finds that Denver Plaintiffs have not alleged sufficient facts to demonstrate that Governor Hickenlooper could be found liable for violating plaintiffs' equal protection or due process rights by the continuation of the Marriage Bans. Denver Plaintiffs' complaint against Governor Hickenlooper is dismissed without prejudice. 4. Should the Court issue a stay of its ruling? After the completion of oral argument the State filed a Partially Stipulated Motion for Stay in the Event of Judgment for the Plaintiffs on June 25, 2014. Therein it was recited that the Adco Plaintiffs and the State agreed to a stay if the Court ruled in plaintiffs' favor. The motion declared that the Governor and the Adams County Clerk & Recorder agreed not to oppose the motion. Denver Plaintiffs and Denver Clerk & Recorder filed a Response in Opposition on June 26, 2014. The State filed a Reply on June 30, 2014. On July 2, 2014 Adco Plaintiffs withdrew their agreement to a stay based on actions by the State. On July 2, 2014 Denver Plaintiffs filed a Sur-reply. Denver Plaintiffs argued that the State had misrepresented the status of stays issued by federal courts. Denver Plaintiffs asserted that federal law regarding stays is not controlling, but rather that Colorado procedural law applies. Denver Plaintiffs referred to a four-factor test when considering whether to stay an order denying or granting an injunction. Romero, 307 P.3d at 122. Denver Plaintiffs also argued that, based on Colorado Supreme Court precedent affirming preliminary injunctions, a declaration Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (213 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 23 that the Marriage Bans are unconstitutional may preclude entry of a stay. Denver Plaintiffs examined the six-part test set forth in Rathke v. MacFarlane, 648 P.2d 653-54 (Colo. 1982). The Court has read and re-read the briefs filed by the parties in an attempt to find any discussion of the grant or denial of an injunction and has found none. None of the briefs mentioned Rathke or analyzed the facts of this case in light of the six factors set forth therein. This Court has found the Marriage Bans unconstitutional but has not issued an injunction, mandatory or otherwise. The State advised in its recent Reply that the United States Supreme Court stayed an injunction granted by a district court in Utah, involving a challenge to that state's marriage laws. 14 Equally significant is that four Federal Courts of Appeals have issued stays of the orders finding the marriage bans unconstitutional. Romero indicated that it was recognizing and adopting federal standards for granting stays. 15 Romero identified four factors to be considered by a court in determining whether to grant a stay. 16 Romero does not, however, remove the discretion of a trial court to grant a stay. Consequently, the trial court properly refused to dismiss his suit and acted within its discretion when it stayed the case pending resolution of the appeal. Rantz v. Kaufman, 109 P.3d 132, 133 (Colo. 2005). [A grant of stay] is ... an exercise of judicial discretion, and [t]he propriety of its issue is dependent upon the circumstances of the particular case. ([T]he traditional stay factors contemplate individualized judgments in each case). Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting, e.g., Hilton v. Braunskill, 481 U.S. 770, 777 (1987)). *25 In addition, the Court has not found language in Romero or Michigan Coalition, requiring that a party seeking a stay must establish each of the four factors, but that they be considered in exercising the discretion to grant or deny a stay. 17 a. Likelihood of success on the merits Depending on circumstances in the cases, this factor has taken on several meanings. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Michigan Coalition, 945 F.2d at 153. [S]erious questions going to the merits. Id. at 154 (citing Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). The State's ultimate likelihood of success on the merits has become increasingly in doubt given the avalanche of court decisions striking down same-sex marriage bans. Nevertheless, the grant of a stay by the Supreme Court in the Utah district court case and the four federal circuit courts suggests that this issue is far from over. b. The threat of irreparable harm to the State if the stay is not granted Irreparable harm is a pliant term adaptable to the unique circumstances that an individual case might present. See State Comm'n on Human Relations v. Talbot County Detention Ctr., 803 A.2d 527, 542 (2002). Generally, irreparable harm has been defined as certain and imminent harm for which a monetary award does not adequately compensate. Gitlitz v. Bellock, 171 P.3d 1274, 1278-79 (Colo. App. 2007). The State has also identified holdings by appellate courts that held that a state suffers irreparable injury whenever an enactment of its people is enjoined. Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997); O Centro Espirita Beneficiente Uniao De Vegetal. v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002) and Planned Parenthood, 134 S. Ct. at 506. The Court has confirmed the cited holding in these cases and finds that the Court's holding that the State's Marriage Bans are unconstitutional may constitute irreparable injury. c. Whether the stay will substantially injure the other parties interested in the proceeding Plaintiffs have alleged that they have endured discrimination for a substantial period of time and suffered injury from the enactment of bans on same-sex marriage. Stays of court orders finding the bans against same-sex marriage unconstitutional are being entered around the United States. The Court cannot find that staying the effect of this Court's Order will result in substantial injury to the plaintiffs. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (214 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 24 d. The public interest in granting the stay *26 The Marriage Bans came into existence based upon actions taken by the Colorado legislature and an amendment to the Colorado Constitution based upon a vote of the citizens of this state. While plaintiffs are members of the public, they do not represent the interests of all of Colorado's citizens. The public has an interest in the orderly determination of the constitutionality of its laws and granting a stay will effectuate that end. This Court is under no delusion that the resolution of the issue of same-sex marriages will end with this Court's decision or any lower courts' decisions. The final chapter of this debate will undoubtedly have to be written in either Denver, Colorado or Washington, D.C. While the striking down of laws banning same-sex marriages has been progressing at a rapid rate, it will take time for this issue to be finally resolved. Having considered the Romero factors, all other circumstances of this case, and the events surrounding the issue of same-sex marriage, the Court finds that a stay is necessary to avoid the instability and uncertainty which would result in the State of Colorado if the Court did not stay its ruling 18 and for the orderly administration of justice. The Court orders that this judgment is stayed pending a resolution of this matter on appeal. Order The Court holds that the Marriage Bans violate plaintiffs' due process and equal protection guarantees under the Fourteenth Amendment to the U.S. Constitution. The existence of civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans. Denver Plaintiffs' claims against Governor Hickenlooper are dismissed without prejudice. The Court's Judgment is stayed pending a resolution of the issue on appeal. Dated this 9 th day of July, 2014. By the Court: <<signature>> C. Scott Crabtree District Court Judge Footnotes 1 Brinkman affidavit. 2 Burd affidavit. 3 Brinkman and Burd affidavits. 4 Parties' Stipulated Facts for Summary Judgment, 1, 3, 6 and 7. 5 Parties' Stipulated Facts for Summary Judgment, 8. 6 Parties' Stipulated Facts for Summary Judgment, 11 and 12. 7 Karen Long Answer, p. 3, Disclaimer. 8 Answer of John W. Hickenlooper, Jr. 9 Denver Motion, p. 15, fn. 2. 10 In a footnote on the first page of the State's Motions it was reflected that the Motions were identical. The Court will refer to the motions in the singular. 11 The State's argument regarding proving unconstitutionality beyond a reasonable doubt only applies to challenges under the state constitution. Adco Plaintiffs' claims are brought under the federal constitution and the reasonable doubt standard does not apply. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (215 of 518) Brinkman v. Long, 2014 WL 3408024 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 25 12 C.R.S. 14-2-104(1)(b) and (2) and Article II, 31 of the Colorado Constitution. 13 The State's argument included a mere 13 lines in a 32-page brief. Combined Response, pp. 18-19. 14 Included in a footnote was the text of the Supreme Court's Order granting the stay of the permanent injunction issued by the U.S. District Court for the District of Utah pending final disposition of the appeal by the 10 th Circuit. 15 Romero concluded that the formulation set forth by the Sixth Circuit in Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F. 2d 150 (6th Cir. 1991), to be the most appropriate test. 16 These factors are not unlike those applied in granting an injunction. 17 These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together. Michigan Coalition, 945 F.2d at 153. 18 Witness the continued issuance of marriage licenses in Boulder (despite a stay of the 10 th Circuit decision) which has prompted the Attorney General to file a lawsuit in Boulder to enjoin the practice. End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (216 of 518) Burns v. Hickenlooper, Not Reported in F.Supp.2d (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 3634834 Only the Westlaw citation is currently available. United States District Court, D. Colorado. Catherine Burns; Sheila Schroeder; Mark Thrun; Geoffrey Bateman; Rachel Catt; Cassie Rubald; Breanna Alexander; Stacy Parrish; Angela Cranmore; Julianne Deloy; Karen Collier; and Denise Lord; Plaintiffs, v. John W. Hickenlooper, Jr., in his official capacity as Governor of Colorado; John Suthers, in his official capacity as Attorney General of Colorado; and Pam Anderson, in her official capacity as Clerk and Recorder for Jefferson County, Defendants. Civil Action No. 14cv01817 RMKLM | Signed July 23, 2014 Attorneys and Law Firms Danielle C. Jefferis, Darren M. Jankord, David Arthur Lane, Mari Anne Newman, Killmer, Lane & Newman, LLP, Denver, CO, for Plaintiffs. Opinion ORDER RAYMOND P. MOORE, United States District Judge *1 Plaintiffs are six same-sex couples who have been legally married in another state but whose marriage Colorado does not legally recognize or who have been refused a Colorado marriage license, solely because they are same-sex couples. Two issues are before the Court: (1) whether a preliminary injunction should be entered enjoining Defendants from enforcing Article II, Section 31 of the Colorado Constitution and C.R.S. 142104(1)(b) and 142104(2) (collectively, Challenged Laws), laws which declare that only a union between one man and one woman may be recognized as a marriage in Colorado; and (2) if a preliminary injunction is ordered, whether such order and this entire proceeding should thereafter be stayed until such time as Kitchen v. Herbert, No. 134178, F.3d , 2014 WL 2868044 (10th Cir. June 25, 2014) becomes final. In Kitchen, the Tenth Circuit found that Utah's ban against same-sex marriage, which is similar to the Challenged Laws, violated the Due Process and Equal Protection Clauses of the United States Constitution. The mandate in Kitchen has been stayed by the Tenth Circuit pending the disposition of any petition for writ of certiorari. Upon consideration of all relevant matters, including argument of counsel, and for the reasons stated herein, the Plaintiffs' Motion for Preliminary Injunction is GRANTED; the Defendants' Motion to Stay the preliminary injunction until resolution of Kitchen is DENIED, but instead only a temporary stay is GRANTED; and the Defendants' Motion to Stay further proceedings in this matter, apart from the preliminary injunction, is GRANTED. I. PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Plaintiffs' civil rights action for declaratory and injunctive relief seeks to declare the Challenged Laws banning same- sex marriage as unconstitutional under the United States Constitution, and to enjoin the Defendants from enforcing those laws. Plaintiffs' two claims for relief under 42 U.S.C. 1983 allege violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. Plaintiffs have filed a Motion for Preliminary Injunction (ECF No. 8) supported by affidavits. Defendants have filed a non-opposition (ECF No. 16), revealing a far from unified front. Defendant Attorney General believes Kitchen is incorrect while Defendant Governor believes Kitchen was correctly decided. Defendant Anderson takes no position on this issue. Nevertheless, Defendants collectively do not oppose entry of a preliminary injunction, but also ask that the injunction, as well as further proceedings in this matter, be stayed. Relying primarily on the Kitchen decision, Plaintiffs argue they have established the requisite elements for the issuance of a preliminary injunction against Defendants. Based on its independent analysis, the Court agrees. Before a preliminary injunction may be issued, the moving party must establish: (1) a substantial likelihood of success on the merits; (2) irreparable injury will result if the injunction does not issue; (3) the threatened injury to the movant outweighs any damage the injunction may cause the opposing party; and (4) issuance of the injunction would not be adverse to the public interest. Northern Natural Gas Co. v. L.D. Drilling, Inc., 697 F.3d 1259, 1266 (10th Cir. 2012) (internal quotation marks omitted). Generally, where the three latter factors weigh in favor of the movant, the probability of success factor is relaxed. Id. (internal Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (217 of 518) Burns v. Hickenlooper, Not Reported in F.Supp.2d (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 alterations and quotation marks omitted). That is not the case, however, where the requested injunction is one of three disfavored types of preliminary injunctions, i.e., those that alter the status quo, mandatory preliminary injunctions, and those granting the moving party all the relief it could achieve at trial. See id.; Flood v. ClearOne Commc'ns, Inc., 618 F.3d 1110, 1117 n.1 (10th Cir. 2010). With disfavored injunctions, the movant must satisfy a heightened standard and make a strong showing as to the likelihood of success on the merits and that the balance of harm favors issuing the requested injunction. See Northern Natural Gas Co., 697 F.3d at 1266; ClearOne Commc'ns, Inc., 618 F.3d at 1117 n.1. *2 In this case, Plaintiffs rely on the traditional four requirements for granting injunctive relief. Although the Court finds Plaintiffs seek a disfavored injunction and, therefore, a heightened standard applies, it nonetheless concludes such standard is satisfied. First, Plaintiffs have made a strong showing of a substantial likelihood of success on the merits of their claims. In Kitchen, the Tenth Circuit held that Utah's same-sex marriage bans do not withstand constitutional scrutiny as under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex. Kitchen, 2014 WL 2868044, at *32. Subsequently, the Tenth Circuit decided Bishop v. Smith, Nos. 145003 & 145006, F.3d , 2014 WL 3537847 (10th Cir. July 18, 2014), which reaffirmed that [s]tate bans on the licensing of same- sex marriage significantly burden the fundamental right to marry. Id. at *6. The Court agrees with the analysis in Kitchen and Bishop that marriage is a fundamental right and that the Challenged Laws impermissibly infringe upon that right. The Court therefore concludes that Plaintiffs will likely succeed in establishing that Colorado's ban impermissibly violates Plaintiffs' constitutional rights. Accordingly, this factor favors granting an injunction. Next, Plaintiffs have also shown that substantial irreparable injury will result if the injunction does not issue. Where the harm is great or substantial, the deprivation of constitutional rights, for even minimal periods of time, constitutes irreparable harm. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir. 2013) (establishing a likely [Religious Freedom Restoration Act] violation satisfies the irreparable harm factor), aff'd on other grounds, 573 U.S. , 2014 WL 2921709 (2014); Heideman v. South Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) ([T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); 11A Charles Alan Wright et al., Federal Practice & Procedure 2948.1 (3d ed. 2014) (where alleged deprivation of constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary). Here, Plaintiffs' establishment of a violation of their constitutional rightstheir fundamental right to marry and to have their marriages recognizedsatisfies the irreparable harm factor. 1 See Hobby Lobby, 723 F.3d at 1146. 1 Plaintiffs also rely on financial injury, e.g., money to address estate planning issues that would not have been required if they were considered married, but such economic loss, without more, does not constitute irreparable harm. See Heideman, 348 F.3d at 1189. Third, the threatened injury to Plaintiffs by the enforcement of Colorado laws which are unconstitutional outweighs any damage the injunction may cause to Defendants. Due to Defendants' non-opposition to the granting of an injunction, they did not address in that context how this or any other factor favored them. Nonetheless, in arguing for a stay of the injunction, Defendants contend that enjoining a state law as unconstitutional creates irreparable injury. But here, the Court is enjoining state laws without opposition from Defendants, which laws the Court has further found to be clearly unconstitutional. Thus, the equities tip strongly in favor of Plaintiffs. Finally, the issuance of the injunction would not be adverse to the public interest as it is always in the public interest to prevent the violation of a party's constitutional rights. Hobby Lobby, 723 F.3d at 1147 (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)). Accordingly, this factor also favors Plaintiffs. In summary, even under the heightened standard, Plaintiffs have shown that all the preliminary injunction factors tip in their favor and that an injunction should be entered. II. DEFENDANTS' MOTION TO STAY Defendants' Motion to Stay raises the issue of whether this Court should stay not only this Order, but also this entire proceeding and await a determination of whether this case may be affectednot by an appeal of this Order in this case Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (218 of 518) Burns v. Hickenlooper, Not Reported in F.Supp.2d (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 but by an appeal of another order in another case, i.e., the Kitchen case. This issue is far from simple. *3 A stay is not a matter of right, but rather an exercise of judicial discretion, the propriety of which is dependent upon the circumstances of the particular case. See Nken v. Holder, 556 U.S. 418, 433 (2009). The party requesting the stay of an injunction bears the burden of showing that the circumstances justify the exercise of that discretion. Id. at 433434. The Tenth Circuit, indeed the Supreme Court as well, has directed courts to apply certain accepted standards in deciding whether to issue a stay. See Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 134 S.Ct. 506, 506, 187 L.Ed.2d 465 (2013); FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003). Those factors are: (1) the likelihood of success on the merits; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) the risk of harm to the public interest. See Planned Parenthood, 134 S.Ct. at 506; FTC, 345 F.3d at 852. The first two factors are the most critical. Planned Parenthood, 134 S.Ct. at 506 (internal quotation marks omitted). In this case, in terms of a stay of the preliminary injunction, Defendants have not met their burden. As previously discussed, on the state of the record currently before the Court, it is Plaintiffs who have shown a likelihood of success on the merits; it is Plaintiffs who suffer irreparable harm if Colorado's unconstitutional same-sex marriage ban is not enjoined; and it is Plaintiffs to whom the balance of harm and the public interest favor. Additionally, in light of Defendants' express non-opposition to the entry of the injunction, Defendants cannot reasonably contend that this Court abused its discretion in granting the preliminary injunction and, concomitantly, no stay. See Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006) (appellate court reviews grant of preliminary injunction for abuse of discretion). 2 2 As to Defendants Governor and Anderson, it is unclear whether any argument by them that such factors are satisfied would withstand inquiry where Defendant Governor has affirmatively stated that Kitchen was correctly decided and Defendant Anderson took no position on the merits of the underlying legal issue in this case. For these reasons, the posture of this case differs from many other cases being litigated in the federal court system where stays have issued. While the Court acknowledges that Defendants may file a protective appeal in this matter, Defendants cannot meet the burden required for a stay pending such appeal under the applicable standard. Defendants have elected to adopt a practical approach before this Court in recognizing the significance of Kitchen, but one consequence of that approach and the non-opposition to the requested injunction is that Defendants have not met their burden with respect to a stay pending appeal under the traditional rules. The factors used to assess whether an injunction should enter are largely the same as those used to determine whether a stay should enter. Having elected largely to stand silent with respect to such factors in the context of the injunction, Defendants have not put before this Court sufficient support for the factors determining entitlement to a stay of the injunction. Rather than take issue with this, Defendant Attorney General argues that: with same sex-marriage litigation, federal courts have largely skipped a methodical assessment of those four factors in favor of entering a stay due to the unsettled nature of the constitutional questions regarding same-sex marriage and the confusion, potential inequity, and high costs that would likely result if the decision granting injunctive relief were reversed on appeal. (Attorney General's Reply, ECF No. 41, pages 67.) *4 The Court agrees that in same-sex marriage cases the federal courts appear to have often put aside the accepted standards they have been repeatedly directed to apply or, as the case may be, directed the lower federal courts to apply. The Court concludes, however, that the basis on which this is being done is much simpler than the nuanced considerations being proffered by Defendant Attorney General. It is being done largely because federal courts have interpreted Supreme Court actions as implied directives to issue stays in these matters. As the concurrence in the Ninth Circuit's Order granting a stay stated: On January 6, 2014, the Supreme Court granted the State's application for a stay pending the disposition of the appeal in the Tenth Circuit. Herbert v. Kitchen, 134 S.Ct. 893 (2014). Although the Supreme Court's terse two-sentence order did not offer a statement of reasons, I cannot identify any relevant differences between the situation before us today and Herbert. And, although the Supreme Court's Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (219 of 518) Burns v. Hickenlooper, Not Reported in F.Supp.2d (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 order in Herbert is not in the strictest sense precedential, it provides a clear messagethe Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review. Latta v. Otter, No. 1435420, Order, at 3 (9th Cir. May 20, 2014) (Hurwitz, J., concurring). See also DeBoer v. Snyder, No. 141341, Order, at 1 (6th Cir. March 25, 2014) (In light of the Supreme Court's issuance of a stay in a similar case, Herbert v. Kitchen, 134 S.Ct. 893 (2014), a stay of the district court's order is warranted.); Bostic v. Rainey, 970 F.Supp.2d 456, 484 (E.D.Va.2014) (same); DeLeon v. Perry, 975 F.Supp.2d 632, 666 (W.D.Tex.2014) (same). Plaintiffs challenge the notion of any directive from the Supreme Court by noting instances in which requests to the Supreme Court for stays have been denied. In that regard, Plaintiffs rely on National Organization for Marriage v. Geiger, 134 S.Ct. 2722 (U.S. June 4, 2014) and Gaffney v. Whitewood, No. 143048 (U.S. July 7, 2014). Plaintiffs' reliance, however, is misplaced because in each case, the applicant requesting the stay was a proposed intervenor who sought to appeal the district court's order declaring the state's same-sex marriage laws as unconstitutional. In short, they were outsiders to the litigation. There is at least one aspect of this case which differs from other same-sex marriage cases being litigated elsewhere in the federal system which has not been emphasized by the parties. Here, the applicable appellate court has already spoken more than once. Kitchen, supra ; Bishop v. Smith, supra. Thus, it is conceivable that any perceived directive from the Supreme Court to let appellate courts consider this issue does not apply here. The Court has given strong consideration to this difference. The proverbial wild card in the analysis is the recent stay entered by the Supreme Court in Herbert v. Evans, No. 14A65, 2014 WL 3557112 (U.S. July 18, 2014). Evans involved a preliminary injunction issued by the district court to require Utah to recognize same-sex marriages resulting from licenses issued in the gap between the time that an injunction issued in Kitchen and the Supreme Court issued a stay. The Evans defendants requested a stay which the Tenth Circuit denied after analyzing the request under the accepted standards and concluding that defendants failed to meet their burden of showing a stay should be issued. Evans v. State of Utah, No. 144060 (10th Cir. July 11, 2014). Notwithstanding this denial, and the fact that the Tenth Circuit has already spoken in Kitchen, on July 18, 2014, the Supreme Court still issued a stay pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. Herbert v. Evans, No. 14A65, 2014 WL 3557112 (July 18, 2014). But, making extraction of the meaning of the stay in Evans more difficult, Evans is a companion case to Kitchen, both addressing the application of Utah's same-sex marriage laws. *5 Based on the most recent stay, it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannotand, more importantly, it will nottell the people of Colorado that the access to this or any other fundamental right will be delayed because it thinks or perceives the subtleor not so subtle content of a message not directed to this case. The rule of law demands more. The rules which this Court is to apply in deciding this matter are set forth in Rule 62, Fed.R.Civ.P., and the standards described earlier. As already explained above, Defendants are not entitled to a stay order under the applicable rules. This is where this Court's analysis must end. The Court recognizes that the Tenth Circuit or the Supreme Court may choose to issue a stay in this matter. And this Court will not foreclose Defendants from having a fair opportunity to seek such stay. Accordingly, as it pertains to the preliminary injunction, this Court will temporarily stay the preliminary injunction order until 8:00 a.m. on August 25, 2014, to permit Defendants time to seek a stay of the injunction from a higher court. As to a stay of further proceedings, apart from the preliminary injunction, the Court exercises its discretion to stay such proceedings in this matter. See Ryan v. Gonzales, 133 S.Ct. 696, 707708, 183 L.Ed.2d 528 (2013); United Steelworkers of America v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1227 (10th Cir. 2003). Kitchen will ultimately decide this matter by the denial of certiorari and issuance of the mandate from the Tenth Circuit or by Supreme Court ruling. Indeed, Defendant Attorney General orally conceded at the July 22, 2014 hearing that if the Kitchen decision is upheld or becomes final, the Challenged Laws are unconstitutional. And a final Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (220 of 518) Burns v. Hickenlooper, Not Reported in F.Supp.2d (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 merits determination here based on Kitchen will only trail Kitchen in the appellate courts. Little would thus be served by requiring the parties to incur the costs and expenses of litigating to final proceedings in this case while trailing Kitchen. 3 3 Defendant Attorney General has suggested that this Court defer to earlier state litigation under the Colorado River doctrine. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). This Court declines to abstain from deciding, and thus to defer to the state, matters of federal constitutional law. III. CONCLUSION Based on the foregoing, it is ORDERED that Plaintiffs' Motion for Preliminary Injunction (ECF No. 8) is GRANTED and Defendants are hereby ENJOINED from enforcing or applying Article II, Section 31 of the Colorado Constitution and C.R.S. 142104(1) (b) and 142104(2) as a basis to deny marriage to same-sex couples or to deny recognition of otherwise valid same-sex marriages entered in other states; and FURTHER ORDERED that Defendants' Motion to Stay Proceedings and NonOpposition to Proposed Preliminary Injunction (ECF No. 16) is DENIED as to their request to stay the preliminary injunction but GRANTED as to a stay of all other proceedings in this case until three (3) days after the final mandate is issued in Kitchen v. Herbert, No. 134178, F.3d , 2014 WL 2868044 (10th Cir. June 25, 2014), or further order of this Court; and FURTHER ORDERED that the preliminary injunction is TEMPORARILY STAYED until 8:00 a.m. on Monday, August 25, 2014, to allow Defendants time to seek relief from the United States Court of Appeals for the Tenth Circuit or the Supreme Court. End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (221 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 2048343 Only the Westlaw citation is currently available. United States District Court, D. Utah, Central Division. Jonell EVANS, Stacia Ireland, Marina Gomberg, Elenor Heyborne, Matthew Barraza, Tony Milner, Donald Johnson, and Karl Fritz Shultz, Plaintiffs, v. State of UTAH, Governor Gary Herbert, Attorney General Sean Reyes, Defendants. Case No. 2:14CV55DAK. | Signed May 19, 2014. Synopsis Background: Same-sex couples legally married in Utah following preliminary injunction barring enforcement of statutory and constitutional bans on same-sex marriages, but before entry of stay of injunction, brought action against State of Utah, alleging Utah's refusal to recognize their marriages pending appeal of decision on bans violated their due process rights. Couples moved for preliminary injunction requiring Utah to continue to recognize their marriages. Holdings: The District Court, Dale A. Kimball, J., held that: [1] couples' request was for a prohibitory injunction, not a disfavored mandatory injunction; [2] couples demonstrated a clear and unequivocal likelihood of success on the merits; [3] Utah's statutory and constitutional bans on same-sex marriages did not apply retroactively; [4] couples demonstrated they would suffer irreparable harm in absence of preliminary injunction; and [5] State was not entitled to stay pending appeal. Motion granted. Attorneys and Law Firms Erik Strindberg, Kathryn K. Harstad, Lauren I. Scholnick, Rachel E. Otto, Strindberg & Scholnick LLC, John M. Mejia, Leah M. Farrell, ACLU of Utah, Salt Lake City, UT, Joshua A. Block, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs. Kyle J. Kaiser, Utah Attorney General, Joni J. Jones, Parker Douglas, Salt Lake City, UT, for Defendants. Opinion MEMORANDUM DECISION AND ORDER DALE A. KIMBALL, District Judge. *1 This matter is before the court on Plaintiffs JoNell Evans, Stacia Ireland, Marina Gomberg, Elenor Heyborne, Matthew Barraza, Tony Milner, Donald Johnson, and Karl Fritz Shultz's Motion for Preliminary Injunction, Plaintiffs' Motion to Certify Questions of Utah State Law to the Utah Supreme Court, and Defendants State of Utah, Governor Gary Herbert, and Attorney General Sean Reyes' (collectively, the State) Motion to Certify Questions of Utah State Law to the Utah Supreme Court. The court held a hearing on Plaintiffs' Motions on March 12, 2014. 1 At the hearing, Plaintiffs were represented by Erik Strindberg, Joshua A. Block, and John Mejia, and the State was represented by Joni J. Jones, Kyle J. Kaiser, and Parker Douglas. After carefully considering the parties' arguments, as well as the law and facts relevant to the motions, the court enters the following Memorandum Decision and Order. FACTUAL BACKGROUND The present lawsuit is brought by four same-sex couples who were married in Utah between December 20, 2013, and January 6, 2014. Plaintiffs allege deprivations of their property and liberty interests under Utah and federal law resulting from the State of Utah's failure to recognize their marriages. A. Kitchen v. Herbert Case On December 20, 2013, United States District Judge Robert J. Shelby issued a ruling in Kitchen v. Herbert, 2:13cv217RJS, 2013 WL 6834634 (D.Utah Dec. 23, 2013), Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (222 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 enjoining the State of Utah from enforcing its statutory and constitutional bans on same-sex marriages (collectively, marriage bans). 2 The State did not request a stay of the ruling in the event that it lost, and the court's decision did not sua sponte stay the ruling pending appeal. After learning of the adverse ruling, the State then requested a stay from the district court, which Judge Shelby denied on December 23, 2013. The Tenth Circuit denied the State's subsequent request for a stay on December 24, 2013. The State moved for a stay with the United States Supreme Court on December 31, 2013, and the Supreme Court granted a stay on January 6, 2014 (Stay Order). B. State's Response to Kitchen Decision After the Kitchen decision was issued on December 20, 2013, some county clerks began issuing marriage licenses to same- sex couples that same day. On December 24, 2013, Governor Herbert's office sent an email to his cabinet, stating: Where no conflicting laws exist you should conduct business in compliance with the federal judge's ruling until such time that the current district court decision is addressed by the 10th Circuit Court. Also on that day, a spokesperson for the Utah Attorney General's Office publicly stated that county clerks who did not issue licenses could be held in contempt of court. Between December 20, 2013 and January 6, 2014, the State of Utah issued marriage licenses to over 1,300 same-sex couples. While it is not known how many of those couples granted licenses solemnized their marriages before January 6, 2014, news reports put the number at over 1,000. *2 The United States Supreme Court's January 6, 2014 Stay Order did not address the legal status of the marriages entered into by same-sex couples in Utah between December 20, 2013, and January 6, 2014, as a result of the Kitchen decision. The Supreme Court's Stay Order stated: The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case no. 2:13cv217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. Also on January 6, 2014, after the Supreme Court's Stay Order, Utah Attorney General Sean Reyes issued the following statement: Utah's Office of Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court's decision and will not rush to a decision that impacts Utah citizens so personally. Two days later, Governor Herbert's chief of staff sent an email to the Governor's cabinet informing them of the Supreme Court's stay and stating that [b]ased on counsel from the Attorney General's Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. The email stated that the cabinet members should understand this position is not intended to comment on the legal status of those same- sex marriagesthat is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages. Furthermore, the email instructed that [w]herever individuals are in the process of availing themselves of state services related to same-sex martial status, that process is on hold and will stay exactly in that position until a final court decision is issued. The next day, Attorney General Reyes issued a letter to county attorneys and county clerks to provide legal clarification about whether or not to mail or otherwise provide marriage certificates to persons of the same sex whose marriage ceremonies took place between December 20, 2013, and January 6, 2014, prior to the issuance of the stay by the U.S. Supreme Court. Attorney General Reyes continued that although the State of Utah cannot currently legally recognize marriages other than those between a man and a woman, marriages between persons of the same sex were recognized in the State of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed. He explained that the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law and would allow, for instance, same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage. *3 Furthermore, Attorney General Reyes stated that the State of Utah would not challenge the validity of those marriages for the purposes of recognition by the federal government or other states. But, the validity of the marriages Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (223 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 in question must ultimately be decided by the legal appeals process presently working its way through the courts. On January 15, 2014, the Utah State Tax Commission issued a notice stating that same-sex couples may file a joint return if they [were] married as of the close of the tax year for 2013 because [a]s of December 31, 2013, the Supreme Court had not yet issued its stay of the District Court's injunction. The notice further stated: This notice is limited to the 2013 tax year. Filing information for future years will be provided as court rulings and other information become available. C. Plaintiffs' Responses to Kitchen Decision Plaintiffs Marina Gomberg and Elenor Heyborne obtained their marriage license and solemnized their marriage on December 20, 2013. They had been in a relationship for nine years and had previously performed a commitment ceremony in May 2009, even though the State of Utah did not recognize the union. They have been contemplating having a baby but are worried about protecting their family because the State of Utah will only allow one of them to be a legal parent to any children that they raise together. Gomberg and Heyborne do not want to move to another state to have their marriage recognized. Plaintiffs Matthew Barraza and Tony Milner also obtained their marriage license and solemnized their marriage on December 20, 2013. They had been in a committed relationship for nearly 11 years. In 2010, Barraza and Milner traveled to Washington, D.C., and got married. However, Utah law prevented any recognition of their marriage in Utah. In 2009, Barraza adopted a son, J., who is now four years old. Under Utah law, Milner was not allowed to be an adoptive parent to J. even though he and Barraza are jointly raising J. On December 26, 2013, Barraza and Milner initiated court proceedings for Milner to adopt their son. The court scheduled a hearing date for January 10, 2014. On January 9, 2014, the court informed them that the court had decided to stay the adoption proceedings to consider whether the Utah Attorney General's Office should be notified of the proceedings and allowed to intervene. The court held a hearing on January 29, 2014, and ruled that the Attorney General's Office should be given notice. The Attorney General's Office declined to intervene but filed a brief stating that the court should stay the proceedings until the Tenth Circuit decided the appeal in Kitchen. On March 26, 2014, the state court judge, the Honorable Andrew H. Stone, rejected the Attorney General's arguments and ordered that Milner should be allowed to adopt J. On April 1, 2014, Milner and Barraza's attorney went to the Utah Department of Health, Office of Vital Records, to obtain a new birth certificate for J. based on Judge Stone's Decree of Adoption. Although he presented a court-certified decree of adoption and report of adoption, which are the only records needed under Utah law and regulation to create a new birth certificate based on adoption, the registrar refused to issue a new birth certificate. The registrar asked for a copy of Barraza and Milner's marriage certificate, even though a marriage certificate is not usually required, and contacted the Utah Attorney General's Office. Two attorneys from the Utah Attorney General's Office instructed the registrar not to issue the amended birth certificate for J. *4 On April 7, 2014, the Utah Department of Health served Milner and Barraza with a Petition for Emergency Extraordinary Relief, which it had filed in the Utah Supreme Court. In that Petition, the Department of Health requests a court order relieving it from recognizing Judge Stone's decree of adoption because it recognizes Milner and Barraza's same- sex marriage. On May 7, 2014, Judge Stone issued an order for the Attorney General and other state officials to show cause why they should not be held in contempt for refusing to comply with the court's order to issue an amended birth certificate. On May 16, 2014, the Utah Supreme Court issued an order staying enforcement of the state court orders and stating that a briefing schedule on the writ would be set. Plaintiffs JoNell Evans and Stacia Ireland also obtained a marriage license and solemnized their marriage on December 20, 2013. Evans and Ireland had been in a relationship for 13 years. In 2007, they had a religious marriage ceremony at the Unitarian Church in Salt Lake City, but the marriage was not recognized by the State of Utah. Evans and Ireland have tried to obtain rights through the use of medical powers of attorney because Ireland has had serious health issues recently. In 2010, Ireland suffered a heart attack. With the power of attorney, Evans was allowed to stay with Ireland during her treatment but did not feel as though she was given the same rights as a spouse. On January 1, 2014, Evans again had to rush Ireland to the hospital emergency room because Ireland was experiencing severe chest pains. Unlike her previous experience, Evans was afforded all courtesies and rights given to the married spouse of a patient. Now that the State no longer recognizes their marriage, Evans does Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (224 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 not know how she will be treated if there is another medical situation. Plaintiffs Donald Johnson and Karl Fritz Shultz got their marriage license and solemnized their marriage on December 23, 2013, after waiting in line for approximately eight hours. Johnson and Shultz have been in a relationship for over 21 years. Johnson first proposed to Shultz the Sunday after Thanksgiving in 1992, and the couple had continued to celebrate that day as their anniversary. Johnson researched insurance coverage for himself and Shultz and discovered that they could save approximately $8,000.00 each year on health insurance. They will lose that savings without state recognition of their marriage. LEGAL ANALYSIS Plaintiffs' Motion for Preliminary Injunction Plaintiffs seek a preliminary injunction requiring the State to continue recognizing the marriages Plaintiffs entered into pursuant to valid Utah marriage licenses between December 20, 2013, and January 6, 2014. The State continues to recognize Plaintiffs' marriages for purposes of joint state tax filings for 2013 and already-issued state documents with marriage-related name changes. However, for all other purposes, the State is applying its marriage bans retroactively to Plaintiffs' marriages. Plaintiffs seek an injunction requiring the State to continue recognizing their marriages as having all the protections and responsibilities given to all married couples under Utah law. I. Preliminary Injunction Standard *5 [1] [2] Preliminary injunctive relief is appropriate if the moving party establishes: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir.2009). Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991). [3] In the Tenth Circuit, certain types of injunctions are disfavored: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant to all the relief that it could recover at the conclusion of a full trial on the merits. Schrier v. University of Colo., 427 F.3d 1253, 1259 (10th Cir.2005) (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir.2004)). Such disfavored injunctions must be more closely scrutinized to assure that the exigencies of that case support the granting of a remedy that is extraordinary even in the normal course. Id. Movants seeking such an injunction are not entitled to rely on this Circuit's modified- likelihood-of-success-on-the-merits standard. O Centro, 389 F.3d at 976. The moving party must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms. Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir.2012). [4] The status quo for purposes of a preliminary injunction is the last peaceable uncontested status existing between the parties before the dispute developed. Schrier, 427 F.3d at 1260. In this case, the last peaceable uncontested status between the parties was when the State recognized Plaintiffs' marriages. Therefore, the requested preliminary injunction does not disturb the status quo. [5] However, the State argues that Plaintiffs' requested preliminary injunction is a disfavored injunction because it is mandatory rather than prohibitory. An injunction is mandatory if it will affirmatively require the nonmovant to act in a particular way, and as a result ... place[s] the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction. Id. at 1261. The Tenth Circuit has recognized that [t]here is no doubt that determining whether an injunction is mandatory as opposed to prohibitory can be vexing. O Centro, 389 F.3d at 1006. In many instances, this distinction is more semantical than substantive. For to order a party to refrain from performing a given act is to limit his ability to perform any alternative act; similarly, an order to perform in a particular manner may be tantamount to a proscription against performing in any other. Id. (citation omitted). *6 [6] In this case, the court could characterize Plaintiffs' requested injunction as prohibiting the State from enforcing its marriage bans against couples who already have vested marriage rights or affirmatively requiring the State to recognize Plaintiffs' vested marriage rights. In large part, it is a matter of semantics rather than substance. Preventing the State from applying its marriage bans retroactively is the same Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (225 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 thing as requiring the State to recognize marriages that were entered into when such marriages were legal. As to the second element of a mandatory injunction, however, there is no evidence to suggest that this court would be required to supervise the State if the court granted Plaintiffs' requested injunction. The State's position is that it is required by Utah law to apply Utah's marriage bans to all same-sex marriages until a court decides the issue. The Directive that went to Governor Herbert's cabinet stated that the legal status of the same-sex marriages that took place before the Supreme Court stay was for the courts to decide. And Attorney General Reyes recognized that the validity of the marriages in question must ultimately be decided by the legal process. Based on the State's compliance with the injunction in Kitchen prior to the Supreme Court's Stay Order, there is no basis for assuming that the State would need supervision in implementing an order from this court recognizing the same- sex marriages. Neither party raised the issue of whether this is an injunction that would provide Plaintiffs with all the relief they could receive from a trial on the merits. Plaintiffs seek declaratory and injunctive relief that their marriages continue to be valid under Utah and federal law. However, Plaintiffs have pleaded a cause of action for the deprivation of property and liberty interests in violation of the United States Constitution under 42 U.S.C. 1983. A determination that the State has deprived Plaintiffs of their constitutional rights could, therefore, result in at least nominal damages at trial. 3 The court concludes, therefore, that the requested injunction is not a disfavored injunction which would require the clear and unequivocal standard to apply to the likelihood of success on the merits element. Based on this court's analysis, the preliminary injunction does not alter the status quo, is not mandatory, and does not afford Plaintiff all the relief that could be awarded at trial. However, to the extent that the requested injunction could be construed as a mandatory injunction, the court will analyze the likelihood of success on the merits under the clear and unequivocal standard. II. Merits Because the court is applying the heightened standard to Plaintiffs' request for a preliminary injunction, the court will address the likelihood of success on the merits first and then each element in turn. A. Likelihood of Success on the Merits Plaintiffs argue that they are likely to succeed on their state and federal claims because they became vested in the rights attendant to their valid marriages at the time those marriages were solemnized and the State is required, under the state and federal due process clauses, to continue recognizing their marriages despite the fact that Utah's same-sex marriage bans went back into effect on January 6, 2014. In their Complaint, Plaintiffs bring causes of action for violations of their due process and liberty interests under the Utah and United States Constitutions. Article I, Section 7 of the Utah Constitution provides that [n]o person shall be deprived of life, liberty or property, without due process of law. The Fourteenth Amendment to the United States Constitution guarantees that No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. *7 The Utah Supreme Court has recognized that the standards for state and federal constitutional claims are different because they are based on different constitutional language and different interpretive law. Jensen ex rel. Jensen v. Cunningham, 250 P.3d 465, 477 (Utah 2011). While the language may be similar, the Utah Supreme Court has explained that federal standards do not foreclose [its] ability to decide in the future that [its] state constitutional provisions afford more rights than the federal Constitution. Id. at 478 (concluding that conduct that did not give rise to a federal constitutional violation could still give rise to a state constitutional violation). Recognizing that the Utah Supreme Court has the prerogative to find that the state due process clause affords more protections, the court will analyze the issue under only federal due process standards. As an initial matter, the court notes that this case is not about whether the due process clause should allow for same- sex marriage in Utah or whether the Kitchen decision from this District was correct. That legal analysis is separate and distinct from the issues before this court and is currently on appeal to the Tenth Circuit Court of Appeals. This case deals only with whether Utah's marriage bans preclude the State of Utah from recognizing the same-sex marriages that already occurred in Utah between December 20, 2013, and January 6, 2014. Plaintiffs bring their federal violation of due process and liberty interests claim under 42 U.S.C. 1983. While Section Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (226 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 1983 does not provide any substantive rights of its own, it provides a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979); Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). [7] To state a claim for a violation of due process, plaintiff must first establish that it has a protected property interest and, second, that defendants' actions violated that interest. Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1216 (10th Cir.2003). The Supreme Court defines property in the context of the Fourteenth Amendment's Due Process Clause as a legitimate claim of entitlement to some benefit. Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). These claims of entitlement generally arise from independent sources such as state statutes, local ordinances, established rules, or mutually explicit understandings. Dickeson v. Quarberg, 844 F.2d 1435, 1437 (10thCir.1988). In assessing a due process claim, the Tenth Circuit has recognized that a liberty interest can either inhere in the Due Process Clause or it may be created by state law. Elwell v. Byers, 699 F.3d 1208, 1213 (10th Cir.2012). 1. Interest Inherent in the Due Process *8 In finding a liberty interest inherent in the Due Process Clause, the Tenth Circuit explained that [t]here can be no doubt that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Id. at 1215 (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 63940, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974)). As the Court declared in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the liberty guaranteed by the Due Process Clause denotes not merely freedom from bodily restraint but also the right of the individual ... to marry, establish a home and bring up children. Id. In Windsor, the United States Supreme Court struck down the federal Defense of Marriage Act because it was unconstitutional as a deprivation of the liberty of the person protected by the Due Process Clause. Id. In prior cases, the court has also found that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection. Lehr v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). [8] In this case, Plaintiffs solemnized legally valid marriages under Utah law as it existed at the time of such solemnization. At that time, the State granted Plaintiffs all the substantive due process and liberty protections of any other marriage. The Windsor Court held that divesting married same-sex couples of the duties and responsibilities that are an essential part of married life violates due process. United States v. Windsor, U.S. , 133 S.Ct. 2675, 2695, 186 L.Ed.2d 808 (2013). As in Windsor, the State's decision to put same-sex marriages on hold, deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities. Id. at 2694. Similarly, the principal effect of the State's actions is to identify a subset of state- sanctioned marriages and make them unequal. The court, therefore, concludes that under Tenth Circuit law, Plaintiffs have demonstrated a liberty interest that inheres in the Due Process Clause. 2. Interest Created by State Law Plaintiffs have also asserted that they have a state property interest in their valid marriages under Utah state law. The only state court to look at an issue similar to the one before this court is the California Supreme Court in Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (2009). The Strauss court addressed the continuing validity of the same-sex marriages that occurred after the California Supreme Court decision allowing same-sex marriage under the California Constitution and the passage of Proposition 8, which amended the California Constitution to preclude same-sex marriages. Id., 93 Cal.Rptr.3d 591, 207 P.3d at 11922. The Strauss court began its analysis by recognizing the presumption against finding an enactment to have retroactive effect and examining the language of Proposition 8 to determine whether the amendment could be applied retroactively. Id., 93 Cal.Rptr.3d 591, 207 P.3d at 120 21. The court concluded that Proposition 8 did not apply retroactively. Id. *9 In making its determination on retroactivity, the court also acknowledged that its determination that Proposition 8 cannot properly be interpreted to apply retroactively to invalidate lawful marriages of same-sex couples that were performed prior to the adoption of Proposition 8 is additionally supported by our recognition that a contrary Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (227 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 resolution of the retroactivity issue would pose a serious potential conflict with the state constitutional due process clause. Id., 93 Cal.Rptr.3d 591, 207 P.3d at 121. The Strauss court explained that its past cases establish that retroactive application of a new measure may conflict with constitutional principles if it deprives a person of a vested right without due process of law. Id. (citations omitted). In determining whether a retroactive law contravenes the due process clause, the court must consider such factors as the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions. Id. Applying these principles to whether the same-sex marriages entered into prior to Proposition 8 should remain valid, the Strauss court concluded that applying Proposition 8 retroactively would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause. Id. at 122. The court reasoned that the same-sex couples acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. Id. Furthermore, the couples' reliance was entirely legitimate, and retroactive application of the initiative would disrupt thousands of actions taken in reliance on the [prior court ruling] by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court. Id. By contrast, a retroactive application of Proposition 8 is not essential to serve the state's current interest (as reflected in the adoption of Proposition 8) in preserving the traditional definition of marriage by restricting marriage to opposite-sex couples; that interest is honored by applying the measure prospectively and by having the traditional definition of marriage enshrined in the state Constitution where it can be altered only by a majority of California voters. Id. In this case, the State seeks to apply its marriage bans retroactively to Plaintiff's previously-entered marriages. The marriage bans were legal nullities at the time Plaintiffs were married. However, once the Supreme Court entered its Stay Order, the State asserts that the marriage bans went back into effect. *10 [9] Like California, Utah law has a strong presumption against retroactive application of laws. Constitutions, as well as statutes, should operate prospectively only unless the words employed show a clear intention that they should have a retroactive effect. Shupe v. Wasatch Elec. Co., 546 P.2d 896, 898 (Utah 1976). The presumption against retroactive application of changes in the law is deeply rooted in principles of fairness and due process. The United States Supreme Court has explained that the presumption against retroactive legislation ... embodies a legal doctrine centuries older than our Republic. Landgraf v. USI Film Prods., 511 U.S. 244, 266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal. Id. [10] [11] Because retroactive application of a law is highly disfavored, a court will and ought to struggle hard against a construction which will, by retrospective operation, affect the rights of parties. Thomas v. Color Country Mgmt., 84 P.3d 1201, 1210 (Utah 2004) (Durham, C.J., concurring). Utah's presumption against retroactivity can be overcome only by explicit statements that the statute should be applied retroactively or by clear and unavoidable implication that the statute operates on events already past. Evans & Sutherland Computer Corp. v. Utah State Tax Comm'n, 953 P.2d 435, 437 (Utah 1997). In this case, Utah's statutory and constitutional provisions do not explicitly state that they apply retroactively. Utah Code Section 3012 states that marriages between persons of the same sex are prohibited and declared void. Utah Code Ann. 3012(5). Utah Code Section 3014.1 provides: It is the policy of this state to recognize as marriage only the legal union of a man and a woman; and this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties [to same-sex couples] that are substantially equivalent to those provided under Utah law to a man and a woman because they are married. Id. 3014.1(1)(a), (b). Article I, Section 29 to the Utah Constitution provides: (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (228 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 8 a marriage or given the same or substantially equivalent legal effect. The use of the present tense in these same-sex marriage bans indicates that the bans do not apply retroactively. In Waddoups v. Noorda, 2013 UT 64, 321 P.3d 1108, the Utah Supreme Court stated: It simply cannot be said that the use of the present tense communicates a clear and unavoidable implication that the statute operates on events already past. If anything, use of the present tense implies an intent that the statute apply to the present, as of its effective date, and continuing forward. Id. at 7. *11 The Waddoups court's analysis is consistent with the Strauss court's conclusion that Proposition 8's use of the present tense did not retroactively apply to prior marriages because a measure written in the present tense (is valid or recognized) does not clearly demonstrate that the measure is intended to apply retroactively. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 120. The Waddoups' decision is further consistent with other courts concluding that statutes stating that a marriage is prohibited and void does not apply retroactively. See Cook v. Cook, 209 Ariz. 487, 104 P.3d 857, 865 n. 2 (Ariz.Ct.App.2005) (finding [m]arriage ... between first cousins is prohibited and void does not apply retroactively); Succession of Yoist, 132 La. 309, 61 So. 384, 385 (1913) (statute declaring, Marriages between white persons and persons of color are prohibited, and the celebration of such marriages is forbidden, and such celebration carries with it no effect, and is mull and void, does not apply retroactively). [12] Thus, the use of present and future tenses in Utah's marriage bans does not provide a clear and unavoidable implication that they operate on events already past. Waddoups, 2013 UT at 7. The court concludes that, under Utah law, nothing in the language of Utah's marriage bans indicates or implies that the bans should or can apply retroactively. Moreover, nothing in the United States Supreme Court's Stay Order speaks to the legal status of the marriages that had already taken place or whether Utah's marriage bans would have retroactive effect when they were put back in place. While the State asserts that the Stay Order placed the marriage bans back into effect as of December 20, 2013, the State cites to no language in the Stay Order that would support that assertion. In addition, the State has not presented any case law indicating that a Stay Order has that effect. The State argues that application of Utah's previously existing marriage bans after the Supreme Court's Stay Order is not retroactive application of the bans because the laws were enacted long before Plaintiffs entered into their marriages. However, this argument completely ignores the change in the law that occurred. The marriage bans became legal nullities when the Kitchen decision was issued and were not reinstated until the Stay Order. In addition, the State's argument fails to recognize that Utah law defines a retroactive application of a law as an application that takes away or impairs vested rights acquired under existing laws ... in respect to transactions or considerations already past. Payne By and Through Payne v. Myers, 743 P.2d 186, 190 (Utah 1987). Under this definition, the State's application of the marriage bans to place Plaintiffs' marriages on hold, necessarily takes away or impairs vested rights acquired under existing law. When discussing the due process concerns implicated in a retroactive application of Proposition 8, the Strauss court had clear California precedents to rely upon that identified the state's recognition of vested rights in marriage. 93 Cal.Rptr.3d 591, 207 P.3d at 121. In this case, however, the State disputes whether Plaintiffs have vested rights in their marriages under Utah law. *12 [13] Under Utah law, a marriage becomes valid on the date of solemnization. See Walters v. Walters, 812 P.2d 64, 68 (Utah Ct.App.1991); State v. Giles, 966 P.2d 872, 877 (Utah Ct.App.1998) (marriage valid from date of solemnization, even if officiant does not return certificate to county clerk). There is no dispute in this case that Plaintiffs' marriages were valid under the law as it existed at the time they were solemnized. In Miller v. USAA Cas. Ins. Co., 44 P.3d 663, 674 (Utah 2002), the Utah Supreme Court recognized that the due process protection in the Utah Constitution is not confined to mere tangible property but extends to every species of vested rights. And, as early as 1892, the Utah Supreme Court recognized the fundamental vested rights associated with marriage. Tufts v. Tufts, 8 Utah 142, 30 P. 309, 310 (1892). In Tufts v. Tufts, the court addressed the retroactive application of divorce laws and stated that the rights and liabilities of spouses grew out of a contract governing the marriage relation which existed at the time the alleged conduct occurred. Id. The court relied on precedent stating that [w]hen a right has arisen upon a contract, or a transaction Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (229 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 9 in the nature of a contract, authorized by statute, and has been so far perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not affect it, or any action for its enforcement. It has then become a vested right, which stands independent of the statute. Id. The court also stated that the rights and liabilities of spouses are sacred and, while the relation is based upon contract, it is a contract that differs from all others, and is the basis of civilized society. Id. at 31011. In this case, Plaintiffs' marriages were authorized by law at the time they occurred. The marriages were solemnized and valid under the existing law so that nothing remained to be done. No separate step can or must be taken after solemnization for the rights of a marriage to vest. Moreover, Plaintiffs began to exercise the rights associated with such valid marriages prior to the entry of the Supreme Court's Stay Order. As in Tufts, therefore, the change in the law does not affect the vested rights associated with those marriages. The vested rights in Plaintiffs' validly-entered marriages stand independent of the change in the law. For over a hundred years, the Tufts decision has never been called into question because it states a fundamental principle of basic fairness. This application of Utah law is consistent with the Strauss court's recognition that the same-sex couples who married after the [court's] decision in the Marriage Cases ... and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. 93 Cal.Rptr.3d 591, 207 P.3d at 121. Moreover, the State has failed to cite any law from any jurisdiction supporting the proposition that rights in a valid marriage do not vest immediately upon valid solemnization of the marriage. *13 Plainly, to deprive Plaintiffs of the vested rights in their validly-entered marriages raises the same due process concerns that were addressed in Strauss. The State argues that Plaintiffs in this case do not have a property interest in their marriages because their right to marry was based on a non- final district court opinion instead of a decision by the state's highest court as in Strauss. To make this argument, however, the State cites to cases involving non-final consent decrees that are factually distinct from a final district court judgment and that are wholly irrelevant to the issue before this court. [14] [15] While a factual difference exists between this case and Strauss, the court finds no basis for legally distinguishing between the final judgment in Kitchen and the California Supreme Court's decision in its marriage cases. Both decisions allowed for same-sex couples to marry legally. [A]n appeal from a decree granting, refusing or dissolving an injunction does not disturb its operative effects. Hovey v. McDonald, 109 U.S. 150, 161, 3 S.Ct. 136, 27 L.Ed. 888 (1883). The general rule is that the judgment of a district court becomes effective and enforceable as soon as it is entered; there is no suspended effect pending appeal unless a stay is entered. In re Copper Antitrust Litig., 436 F.3d 782, 793 (7th Cir.2006). The State's arguments as to Plaintiffs' reliance on the final judgment in Kitchen also ignore the fact that Plaintiffs are claiming a vested right in their validly-entered legal marriages. Plaintiffs are not claiming they have a vested right in the continuation of the Kitchen injunction or judgment. Plaintiffs contend that their rights vested upon the solemnization of their valid marriages and that their validly-entered marriages do not rely on the continuation or reinstatement of the Kitchen injunction. Thus Plaintiffs seek recognition of their marriages separate and apart from the ultimate outcome of the Kitchen appeals. Plaintiffs' claims, therefore, are factually and legally distinguishable from the cases the State cites applying the vested rights doctrine. See Axel Johnson, Inc. v. Arthur Andersen & Co., 6 F.3d 78 (2d Cir.1993); CasianoMontanez v. State Ins. Fund Corp., 707 F.3d 124 (1stCir.2013). In those cases, the plaintiffs were relying on rights fixed by a district court judgment, whereas, Plaintiffs, in this case, are relying on the validity of their marriage licenses. The State, in this case, issued and recognized Plaintiffs' marriage licenses, which became valid under Utah law when the marriages were solemnized. The State did not issue provisionally- valid marriage licenses. Moreover, Plaintiffs' vested rights in their legally recognized marriages are not dependent on the ultimate outcome in Kitchen. Whether or not Kitchen is ultimately upheld, the district court's injunction was controlling law and Utah's marriage bans were a legal nullity until the Supreme Court issued the Stay Order on January 6, 2014. See Howat v. State of Kansas, 258 U.S. 181, 18990, 42 S.Ct. 277, 66 L.Ed. 550 (1922) (An injunction duly issuing out of a court ... must be obeyed ... however erroneous the action of the court may be.). *14 The State further argues that Plaintiffs' marriages can be declared legal nullities if the Kitchen decision is overturned because the law has recognized instances when Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (230 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 10 traditional marriages thought to be valid are later declared legal nullities. However, the instances in which courts have declared such marriages void involve mistakes of fact. In Van Der Stappen v. Van Der Stappen, 815 P.2d 1335, 1338 (Utah Ct.App.1991), the wife discovered that she had not completed a previous divorce at the time of her subsequent marriage. In the present case, the marriages were valid under the law at the time they were solemnized and there is no alleged mistake of fact. Therefore, the comparison is inapposite. Cases involving marriages that were invalid at their inception are not helpful or relevant. This case is also distinguishable from cases where county clerks spontaneously started issuing same-sex marriage licenses without any court order or basis in state law. Unlike the cases before this court, those cases were also invalid at their inception. The more analogous case is presented in Cook v. Cook, where the court recognized that refusing to recognize an out-of- state marriage that had previously been recognized within the state would violate constitutional due process guarantees. 209 Ariz. 487, 104 P.3d 857, 866 (Ariz.App.2005). In Cook, the statutory scheme in place when the couple moved to the state expressly allowed the marriage, but a subsequent amendment made such a marriage void. Id. The court refused to find all such marriages in the state on the date of the amendment void because the couples in the state with such marriages already had constitutionally vested rights in their marriages. Id. [16] The State believes that all the actions taken in response to the final judgment in Kitchen can be considered a nullity if the decision is ultimately overturned. However, there are several instances in which courts recognize that actions taken in reliance on an injunction cannot be reversed. See University of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (injunctions have legal effects that will be irrevocably carried out and cannot be unwound if the injunction is subsequently overturned on appeal); see also Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1247 (10th Cir.2001) (recognizing certain types of injunctions once complied with, cannot be undone). Moreover, a person who disobeys a district court injunction that has not been stayed may be punished with contempt even if the underlying injunction is subsequently reversed. Walker v. City of Birmingham, 388 U.S. 307, 314, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). The State further fails to recognize that Plaintiffs are claiming a violation of substantive due process rights, not merely procedural due process rights. Plaintiffs allege that they have substantive vested rights in their marriages-such as, the right to family integrity, the right to the custody and care of children of that marriage-that the State cannot take away regardless of the procedures the State uses. Once Plaintiffs solemnized a legally valid marriage between December 20, 2013, and January 6, 2014, Plaintiffs obtained all the substantive due process and liberty protections of any other marriage. *15 As stated above, the Supreme Court recently held that divesting married same-sex couples of the duties and responsibilities that are an essential part of married life violates due process. United States v. Windsor, U.S. , 133 S.Ct. 2675, 2695, 186 L.Ed.2d 808 (2013). The State's decision to put same-sex marriages on hold, deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities. Id. at 2694. Prior Supreme Court cases also establish that there is a sphere of privacy or autonomy surrounding an existing marital relationship into which the State may not lightly intrude. Zablocki v. Redhail, 434 U.S. 374, 397 n. 1, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (Powell, J., concurring). 4 The State has not attempted to argue that they have a constitutionally adequate justification for overcoming Plaintiffs' due process and liberty interests. Lawrence v. Texas, 539 U.S. 558, 593, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (Ordinarily, the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.) The State has not provided the court with a compelling state interest for divesting Plaintiffs of the substantive rights Plaintiffs obtained in their marriages. The State asserts merely that Plaintiffs improperly relied on the ruling of a United States District Court. The State's argument, however, fails to acknowledge that the State also relied on the Kitchen decision. The State notified its county clerks that they were required to issue marriage licenses. The State now seems to be claiming that while it reasonably required its county clerks to act in response to the Kitchen decision, Plaintiffs unreasonably acted on that same decision. However, the court has already discussed the operative effect of a district court injunction. That operative effect applies to all parties equally. Even though the Supreme Court's Stay Order put Utah's marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so. Although the State has an Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (231 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 11 interest in applying state law, that interest is only in applying the controlling law at the time. In Strauss, the court found that a retroactive application of Proposition 8 was not essential to serve the state's current interest (as reflected in the adoption of Proposition 8) in preserving the traditional definition of marriage by restricting marriage to opposite-sex couples; that interest is honored by applying the measure prospectively and by having the traditional definition of marriage enshrined in the state Constitution. 93 Cal.Rptr.3d 591, 207 P.3d at 122. In comparison, a retroactive application of the initiative would disrupt thousands of actions taken in reliance on the [In re ] Marriage Cases [43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008) ] by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined. Id. *16 As in Strauss, this court concludes that the State has not demonstrated a state interest that would overcome Plaintiffs' vested marriage rights. The State's decision to retroactively apply its marriage bans and place Plaintiffs' marriages on hold infringes upon fundamental constitutional protections for the marriage relationship. Therefore, Plaintiffs have demonstrated a clear and unequivocal likelihood of success on the merits of their deprivation of federal due process claim under 42 U.S.C. 1983. B. Irreparable Harm [17] Under Tenth Circuit law, [t]he party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.2003). The State argues that the court should not find irreparable harm because, even though Plaintiffs have the option of living in a state that would recognize their marriage, Plaintiffs have chosen to live in Utah for years without enjoying the rights of marriage. This argument ignores the changes in the law that occurred and the fact that Plaintiffs' situations were materially altered when they became validly married in the State of Utah. [18] [19] The Tenth Circuit recognizes that [w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary. Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.2012). As stated above, Plaintiffs have demonstrated a likelihood of success on the merits that the State is violating their due process and liberty interests by refusing to recognize their validly-entered marriages. The State has placed Plaintiffs and their families in a state of legal limbo with respect to adoptions, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance, and many other property and fundamental rights associated with marriage. These legal uncertainties and lost rights cause harm each day that the marriage is not recognized. The court concludes that these circumstances meet the irreparable harm standard under Tenth Circuit precedents. C. Balance of Harms [20] [I]f the moving party establishes a likelihood of success on the merits, the balance of harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional. ACLU of Ill. v. Alvarez, 679 F.3d 583, 58990 (7th Cir.2012); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir.2013). In this case, the laws themselves may not be unconstitutional, but the State's retroactive application of the marriage bans likely violates Plaintiffs' constitutional rights. The State has no legitimate interest in depriving Plaintiffs of their constitutional rights. Although the State has a general interest in representing the wishes of its voters, that interest does not outweigh the harms Plaintiffs face by having their constitutional rights violated. Plaintiffs face significant irreparable harms to themselves and their families-inability to inherit, inability to adopt, loss of custody, lost benefits. The State, however, has demonstrated no real harm in continuing to recognize Plaintiffs' legally- entered marriages. The State's harm in the Kitchen litigation with respect to continuing to issue same-sex marriage licenses is not the same as the harm associated with recognizing previously-entered same-sex marriages that were valid at the time they were solemnized. The only relevant harm in this case is the harm that results from requiring the State to recognize Plaintiffs' marriages. *17 The State asserts that it is harmed by not being able to enforce the marriage bans retroactively. But the court has already discussed the constitutional concerns associated with a retroactive application of the marriage bans and finds no harm to the State based on an inability to apply the marriage bans retroactively. The State's marriage bans are currently in place and can stop any additional marriages from occurring. The State's interest is in applying the current law. The court, therefore, concludes that the balance of harms Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (232 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 12 weighs decidedly in Plaintiffs' favor and supports the court's issuance of a preliminary injunction. D. Public Interest [21] [I]t is always in the public interest to prevent the violation of a party's constitutional rights. Awad, 670 F.3d at 1132. In this case, the court agrees with Plaintiffs that the public is well served by having certainty about the status of Plaintiffs' marriages. That certainty not only benefits Plaintiffs and there families but State agencies, employers, and other third parties who may be involved in situations involving issues such as benefits, employment, inheritance, child custody, and child care. For the foregoing reasons, the court concludes that Plaintiffs have met the clear and unequivocal standard for obtaining a preliminary injunction during the pendency of this litigation. Plaintiffs have demonstrated that they are likely to succeed on the merits of their federal due process claims, that they will be irreparably harmed if a preliminary injunction does not issue, that the balance of harms weighs in their favor, and that the injunction is in the public interest. Accordingly, Plaintiffs' motion for a preliminary injunction is granted and the court will enter a preliminary injunction preventing the State from enforcing its marriage bans with respect to the same-sex marriages that occurred in Utah between December 20, 2013, and January 6, 2014. The State's Request for Stay Pending Appeal In the event that the court decided to grant Plaintiffs' motion for a preliminary injunction, the State requested that the court stay the injunction pending appeal. Rule 62(c) provides that [w]hile an appeal is pending from an interlocutory order ... that grants ... an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights. Rule 8(a)(1) of the Federal Rules of Appellate Procedure provides that a party must ordinarily first move in the district court to obtain a stay of the judgment or order of a district court pending appeal. Fed. R.App. P. 8(a)(1). [22] The purpose of a stay is to preserve the status quo pending appeal. McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir.1996). The court has already determined that the status quo in this case is the State recognizing Plaintiffs' marriages. Therefore, the State's request would alter the status quo. *18 [23] [24] [25] The court considers the following four factors when considering a motion to stay pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). With respect to the four stay factors, where the moving party has established that the three harm factors tip decidedly in its favor, the probability of success' requirement is somewhat relaxed. F.T.C. v. Mainstream Marketing Services, Inc., 345 F.3d 850, 852 (10th Cir.2003) (citations omitted). If the State can meet the other requirements for a stay pending appeal, they will be deemed to have satisfied the likelihood of success on appeal element if they show questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation. McClendon, 79 F.3d at 1020 (quoting Walmer v. United States Dep't of Defense, 52 F.3d 851, 854 (10th Cir.), cert. denied, 516 U.S. 974, 116 S.Ct. 474, 133 L.Ed.2d 403 (1995)). [26] Based on the court's analysis above, this court believes that its decision is correct and that Plaintiffs, not the State, have demonstrated a clear likelihood of success on the merits. Also, the court has already weighed and balanced the harms involved in issuing its preliminary injunction. Plaintiffs have demonstrated existing clear and irreparable harms if an injunction is not in place. As discussed above, the balance of harms is necessarily tied to the merits of the decision because harm to Plaintiffs' constitutional rights are given significantly more weight than the State's harm in not being able to apply its marriage bans retroactively to legally- entered marriages. The irreparable nature of Plaintiffs harms involve fundamental rights such as the ability to adopt, the ability to inherit, child care and custody issues, and other basic rights that would otherwise remain in legal limbo. For these reasons, the court cannot conclude that the harm to Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (233 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 13 the State outweighs the harm to Plaintiffs during pendency of the appeal. The need for certainty also weighs heavily in determining the public interest. Recognition of Plaintiffs' marriages impacts extended families, employers, hospitals, schools, and many other third parties. The court, therefore, concludes that the State has not met its burden of establishing the factors required for a stay pending appeal. In its discretion, however, the court grants the State a limited 21day stay during which it may pursue an emergency motion to stay with the Tenth Circuit. The court recognizes the irreparable harms facing Plaintiffs every day. However, the court finds some benefit in allowing the Tenth Circuit's to review whether to stay the injunction prior to implementation of the injunction. Therefore, notwithstanding the many factors weighing against a stay, the court, in its discretion, grants the State a temporary 21day stay. Motion to Certify Questions of State Law *19 In addition to their Motion for a Preliminary Injunction, Plaintiffs also ask the court to certify questions of law to the Utah Supreme Court. Specifically, Plaintiffs ask the court to certify two specific questions: (1) Under Utah law, do same- sex couples who were legally married between December 20, 2013, and January 6, 2014, have vested rights in their marriages which are protected under Article I, Section 7 of the Utah Constitution?; and (2) Once the State of Utah recognized the marriages of same-sex couples entered into between December 20, 2013, and January 6, 2014, could it apply Utah's marriage bans to withdraw that recognition? The State opposed Plaintiffs' motion to certify but has now brought its own Motion to Certify, asking the court to certify the following question: Do same-sex couples who received marriage licenses, and whose marriages were solemnized, between December 20, 2013 and January 6, 2014, have vested property rights in their marriages which now require recognition under present Utah law? The State opposed Plaintiffs' motion to certify on the grounds that the answers to Plaintiffs' proposed questions were clear and the questions were vague and unhelpful to the court. However, after briefing and argument on Plaintiffs' motion to certify, the State alleges that circumstances changed when some district court judges in Utah's state courts began ruling that Plaintiffs had vested rights in their marriages. Rule 41(a) of the Utah Rules of Appellate Procedure provides that the Utah Supreme Court may answer a question of Utah law certified to it by a court of the United States when requested to do so by such certifying court ... if the state of the law of Utah applicable to a proceeding before the certifying court is uncertain. Utah R.App. P. 41(a). The certification order must state (1) the question of law to be answered, (2) that the question certified is a controlling issue of law in a proceeding pending before the certifying court, and (3) that there appears to be no controlling Utah law. Id. 41(c). The parties' requests to certify come to this court in a fairly unusual procedural posture. Claiming that the heart of Plaintiffs' claims is whether the State's failure to recognize their marriages violates the Due Process Clause of the Fourteenth Amendment, the State removed Plaintiffs' case from state court to federal court. The State then opposed Plaintiffs' motion to certify question to the state court. Now, based on rulings favorable to Plaintiffs in state district courts, the State argues that this court should certify the vested right question to the Utah Supreme Court to ensure consistency and fairness. As demonstrated by the parties' competing motions, both parties in this case seek a determination from the Utah Supreme Court as to whether Plaintiffs have vested rights in their marriages under Utah law. In determining Plaintiffs' federal due process claim, this court concluded that Plaintiffs have liberty interests inherent in the Due Process Clause and created by state law. Therefore, the vested rights issue is an important issue of law in this case, but it does not appear to be essential to Plaintiffs' federal due process claim. However, with respect to the final requirement for certificationthat there is no controlling Utah lawthis court concluded that, under Utah state law, Plaintiffs clearly and unequivocally demonstrated that they have vested rights in their legally- entered marriages and their vested marriage rights are protected by the federal due process clause regardless of the ultimate outcome of the Kitchen case. *20 The State asserts that this court should certify the vested rights question to the Utah Supreme Court because state district court judges in several adoption cases have ruled that Plaintiffs' have vested marriage rights and the State has sought review of those decisions through a writ to the Utah Supreme Court. Although the Utah Supreme Court has granted a stay of the adoption decrees while it considers the issue, the court's decision to have the issue briefed makes no comment on the merits of the writs. As Plaintiffs' asserted in their oppositions, Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (234 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 14 there may be procedural grounds for dismissal or denial of the writs that would preclude the Utah Supreme Court from reaching the merits of the issue. The State asserts that this court could have determined the state law enmeshed with the federal due process challenge but for the state adoption rulings. This court, however, is not aware of any case in the Utah state courts that have been favorable to the State's position. At most, some district courts have chosen to stay the adoption cases pending a decision on the validity of the marriages. Several state rulings consistent with this court's determination that Plaintiffs have vested rights in their marriages does not provide a basis for concluding that the issue of state law is uncertain. Finally, if the court is to consider fairness as the State requests, the court notes that the State chose this forum by removing the action from state court. Unlike Plaintiffs who seek certification in order to obtain favorable rulings from both courts, the State seeks to begin the process anew in a different forum from the one it chose. The court agrees with Plaintiffs that the State's late-filed motion to certify, asserting a nearly identical question to those posed by Plaintiffs, appears to be a delay tactic. 5 [27] Utah law clearly provides that rights in a valid marriage vest immediately upon solemnization. There is no further action required to be taken or that could be taken by either party to create the vested right. There is no basis under Utah law for finding that Plaintiffs in this case were required to take steps beyond solemnization in order to obtain vested rights when such steps are not required for other marriages. Because Utah law is clear and not ultimately controlling of the case before this court, the court concludes that there is no basis for certifying the state law questions to the Utah Supreme Court. Accordingly, the parties' motions to certify state law questions are denied. CONCLUSION Based on the above reasoning, Plaintiffs Motion for Preliminary Injunction [Docket No. 8] is GRANTED; Plaintiffs' Motion to Certify Questions of Utah State Law to the Utah Supreme Court [Docket No. 10] is DENIED; and Defendants' Motion to Certify Questions of Utah State Law to the Utah Supreme Court [Docket No. 34] is DENIED. The following Preliminary Injunction Order is temporarily stayed for twenty-one (21) days to allow the State to seek an emergency stay pending appeal from the Tenth Circuit. PRELIMINARY INJUNCTION ORDER *21 The court issues the following Preliminary Injunction against Defendants: Defendants State of Utah, Governor Gary Herbert and Attorney General Sean Reyes are prohibited from applying Utah's marriage bans retroactively to the same-sex marriages that were entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014. Accordingly, Defendants State of Utah, Governor Gary Herbert and Attorney General Sean Reyes shall immediately recognize the marriages by same-sex couples entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014, and afford these same-sex marriages all the protections, benefits, and responsibilities given to all marriages under Utah law. Footnotes 1 The State's Motion to Certify Questions of Utah State Law was not filed until after the hearing was held. The motion is fully briefed, and the court concludes that a separate hearing on the motion is unnecessary. 2 In 1977, the Utah Legislature amended Utah Code Section 3012 to state [t]he following marriages are prohibited and declared void: [marriages] between persons of the same sex. Utah Code Ann. 3012(5). In 2004, the Utah Legislature added Utah Code Section 3014.1, which provides: It is the policy of this state to recognize as marriage only the legal union of a man and a woman; and this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties [to same- sex couples] that are substantially equivalent to those provided under Utah law to a man and woman because they are married. Id. 3014.1(1)(a), (b). In the November 2004 general election, Utah voters passed Amendment 3, which added Article I, Section 29 to the Utah Constitution, effective January 1, 2005, which provides: (1) Marriage consists of only the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (235 of 518) Evans v. Utah, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 15 3 Plaintiffs allege financial damages due to a deprivation of rights, such as Johnson and Shultz's $8,000.00 yearly loss for insurance premiums. Plaintiffs, however, do not specifically request monetary damages in their Prayer for Relief. Rather, Plaintiffs state only any other relief the court deems just and proper. 4 Utah courts have also recognized [t]he rights inherent in family relationshipshusband-wife, parent-child, and siblingare the most obvious examples of rights protected by the Constitution. In re J.P., 648 P.2d 1364, 1373 (Utah 1982). 5 The State includes a footnote in its motion to certify stating that the factors warranting the application of the Colorado River abstention doctrine apply in this case. See Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). However, this case and the current state proceedings are not parallel actions. See Fox v. Maulding, 16 F.3d 1079, 1081 (10th Cir.1994) ([A] federal court must first determine whether the state and federal proceedings are parallel.). The state actions were instituted as adoption proceedings and are before the Utah Supreme Court on emergency writs. The case before this court is a deprivation of due process and liberty interest under state and federal due process. Only one couple in the adoption proceedings overlap with the Plaintiffs in this case. Also, significantly, the rights and remedies at issue in this case are far broader than those at issue in the state court proceedings. Moreover, the only reason both cases are not in State court is because the State removed this case from State court. It strikes the court as procedural gamesmanship for the State to remove a case to federal court and then ask the court in the forum the State chose to abstain from acting. The decision whether to defer to the state courts is necessarily left to the discretion of the district court in the first instance. Id. at 1081. Such discretion must be exercised in light of the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them. Id. (citations omitted). Because these cases are not parallel actions, the court has no discretion to abstain and must exercise its obligation to hear and decide the case presented to it. End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (236 of 518) Only the Westlaw citation is currently available. United States District Court, D. Oregon. Deanna L. GEIGER and Janine M. Nelson: Robert Duehmig and William Grieser, Plaintiffs, v. John KITZHABER, in his official capacity as Gov- ernor of Oregon; Ellen Rosenblum, in her official capacity as Attorney General of Oregon; Jennifer Woodward, in her official capacity as State Regis- trar, Center for Health Statistics, Oregon Health Authority, and Randy Walruff, in his official capa- city as Multnomah County Assessor, Defendants. Paul Rummell and Benjamin West; Lisa Chick- adonz and Christine Tanner; Basic Rights Educa- tion Fund, Plaintiffs, John Kitzhaber, in his official capacity as Governor of Oregon; Ellen Rosenblum, in her official capa- city as Attorney General of Oregon; Jennifer Woodward, in her official capacity as State Regis- trar, Center for Health Statistics, Oregon Health Authority, and Randy Walruff, in his official capa- city as Multnomah County Assessor, Defendants. Case Nos. 6:13cv01834MC, 6:13cv02256MC. Signed May 19, 2014. Background: In consolidated suits, four homo- sexual couples challenged Oregon's ban on same- sex marriage as violative of the Equal Protection Clause of the Fourteenth Amendment. Couples moved for summary judgment. Holdings: The District Court, McShane, J., held that: (1) Oregon's prohibition of same-sex marriage dis- criminated on basis of sexual orientation, not gender; (2) tradition, alone, did not provide legitimate state interest to support prohibition; and (3) while goals of protecting children and encour- aging stable families were legitimate state interests, they were not burdened by overturning prohibition. Motions granted. West Headnotes [1] Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Society's significant interest in marriage is manifest by a state's rightful and legitimate concern in regulating marriage, including the power to de- cide what marriage is and who may enter into it. [2] Marriage 253 3 253 Marriage 253k3 k. What law governs. Most Cited Cases Federal government defers to state marriage authority, accepting that marital policies may vary from state to state. [3] Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Although states have wide latitude in regulat- ing marriage, any such laws must abide by the fed- eral Constitution. [4] Constitutional Law 92 3039 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)5 Scope of Doctrine in Gener- al 92k3038 Discrimination and Classific- ation 92k3039 k. In general. Most Cited Cases Page 1 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (237 of 518) Constitutional Law 92 3043 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)5 Scope of Doctrine in Gener- al 92k3038 Discrimination and Classific- ation 92k3043 k. Statutes and other writ- ten regulations and rules. Most Cited Cases Fourteenth Amendment's Equal Protection Clause presumes that one class of citizens will re- main entitled to the same benefits and burdens as the law affords to other classes, but this presump- tion is tempered by the practical necessity that most legislation classifies for one purpose or another, granting a degree of favor to some and disadvant- age to others. U.S.C.A. Const.Amend. 14. [5] Constitutional Law 92 3057 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Reasonableness 92k3057 k. Statutes and other writ- ten regulations and rules. Most Cited Cases Courts balance the principle of the Fourteenth Amendment's Equal Protection Clause with the practical reality that most legislation classifies for one purpose or another by tolerating laws that clas- sify groups and individuals only if such laws are ra- tionally related to a legitimate state purpose. U.S.C.A. Const.Amend. 14. [6] Constitutional Law 92 3736 92 Constitutional Law 92XXVI Equal Protection 92XXVI(E) Particular Issues and Applica- tions 92XXVI(E)16 Families and Children 92k3736 k. Marriage and divorce in general. Most Cited Cases To satisfy equal protection, laws regulating marriage must advance legitimate state interests, and not a mere desire to harm a particular class of citizens. U.S.C.A. Const.Amend. 14. [7] Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases Constitutional Law 92 3078 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3069 Particular Classes 92k3078 k. Race, national origin, or ethnicity. Most Cited Cases On an equal protection challenge, strict scru- tiny, as the most exacting level of scrutiny, is re- served for suspect classifications such as race or na- tional origin, as these classifications raise special fears that they are motivated by an invidious pur- pose, thus warranting a searching judicial inquiry to ferret out any illegitimate uses of such classifica- tions. U.S.C.A. Const.Amend. 14. [8] Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases Under the strict scrutiny level of review on an Page 2 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (238 of 518) equal protection challenge, the government has the burden of demonstrating the classifications are nar- rowly tailored to further a compelling government interest. U.S.C.A. Const.Amend. 14. [9] Constitutional Law 92 3074 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3069 Particular Classes 92k3074 k. Illegitimacy. Most Cited Cases Constitutional Law 92 3081 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3069 Particular Classes 92k3081 k. Sex or gender. Most Cited Cases On an equal protection challenge, classifica- tions such as those based on gender or illegitimacy, are subject to heightened scrutiny, also known as intermediate scrutiny, under which the classifica- tion must be substantially related to a sufficiently important government interest. U.S.C.A. Const.Amend. 14. [10] Constitutional Law 92 1021 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)3 Presumptions and Construction as to Constitutionality 92k1006 Particular Issues and Applica- tions 92k1021 k. Equal protection. Most Cited Cases Constitutional Law 92 3057 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Reasonableness 92k3057 k. Statutes and other writ- ten regulations and rules. Most Cited Cases On an equal protection challenge, most classi- fications are presumed to be valid and receive less- exacting judicial scrutiny, known as rational basis review, under which the Equal Protection Clause is satisfied if: (1) there is a plausible policy reason for the classification, (2) the legislative facts on which the classification is apparently based ration- ally may have been considered to be true by the governmental decisionmaker, and (3) the relation- ship of the classification to its goal is not so attenu- ated as to render the distinction arbitrary or irra- tional. U.S.C.A. Const.Amend. 14. [11] Constitutional Law 92 3409 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)11 Sex or Gender 92k3408 Families and Children 92k3409 k. In general. Most Cited Cases Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions Page 3 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (239 of 518) 253k17.5(1) k. In general. Most Cited Cases Oregon's prohibition of same-sex marriage dis- criminated on basis of sexual orientation, not gender, for purposes of equal protection challenge, since both men and women were prohibited from doing exact same thing, marrying someone of same gender, and state's marriage laws instead classified same-gender couples differently than opposite- gender couples. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1). [12] Federal Courts 170B 3796 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(L) Determination and Disposition of Cause 170Bk3793 Effect of Decision in Lower Court 170Bk3796 k. Mandate. Most Cited Cases Federal Courts 170B 3805 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(L) Determination and Disposition of Cause 170Bk3804 Jurisdiction and Proceedings of Court of Appeals After Remand 170Bk3805 k. In general. Most Cited Cases Appellate court's decision is not final until its mandate issues, and, absent a mandate's issuance, the circuit retains jurisdiction of the case and may modify or rescind its opinion. [13] Constitutional Law 92 3040 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)5 Scope of Doctrine in Gener- al 92k3038 Discrimination and Classific- ation 92k3040 k. Intentional or purpose- ful action requirement. Most Cited Cases Equal Protection Clause does not allow classi- fications drawn solely for the purpose of disad- vantaging a particular group intentionally singled out for unequal treatment. U.S.C.A. Const.Amend. 14. [14] Constitutional Law 92 3057 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Reasonableness 92k3057 k. Statutes and other writ- ten regulations and rules. Most Cited Cases Under rational basis review on an equal protec- tion challenge, courts presume the classification is valid, declaring it unconstitutional only when the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that the court can only con- clude that the legislature's actions were irrational. U.S.C.A. Const.Amend. 14. [15] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases That majority of Oregon voters enacted ballot measure in order to constitutionally embed classi- Page 4 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (240 of 518) fications underlying state's same-sex marriage pro- hibition made no difference to court's rational basis review on equal protection challenge. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1). [16] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases That the traditional definition of marriage ex- cludes same-gender couples does not end the in- quiry, under rational basis review, on an equal pro- tection challenge. U.S.C.A. Const.Amend. 14. [17] Constitutional Law 92 3053 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Reasonableness 92k3053 k. In general. Most Cited Cases If tradition alone was sufficient to withstand ra- tional basis review, the right to equal protection would be quite hollow, as tradition would thus turn rational basis review into a rubber stamp condoning discriminationagainst longstanding, traditionally-op- pressed minority classes. U.S.C.A. Const.Amend. 14. [18] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Limiting civil marriage to opposite-gender couples based only on a traditional definition of marriage is simply not a legitimate purpose under rational basis review on an equal protection chal- lenge. U.S.C.A. Const.Amend. 14. [19] Constitutional Law 92 3039 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)5 Scope of Doctrine in Gener- al 92k3038 Discrimination and Classific- ation 92k3039 k. In general. Most Cited Cases Moral disapproval of a group cannot be a legit- imate governmental interest under the Equal Pro- tection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law. U.S.C.A. Const.Amend. 14. [20] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Tradition, alone, did not provide legitimate state interest supporting classifications underlying Oregon's same-sex marriage prohibition, and thus prohibition could not survive rational basis review Page 5 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (241 of 518) on this ground on four homosexual couples' equal protection challenge; regardless of religious and so- cial traditions, once Oregon defined marriage and attached benefits to that definition, it had to do so constitutionally, without imposing traditional or faith-based limitation upon such public right without sufficient justification, and overturning prohibition would not upset Oregonians' religious beliefs and freedoms. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1). [21] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Goal of promoting stable families constituted legitimate state interest, but this goal would not be burdened by overturning Oregon's same-sex mar- riage prohibition, and thus prohibition could not survive rational basis review on this ground on four homosexual couples' equal protection challenge; state's interest in promoting stable families did not stop with families of opposite-gender couples, which state acknowledged by enabling homosexual couples to enter domestic partnerships, even though state further acknowledged that such partnerships were not equal to civil marriage. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1), 106.305(3, 4, 6, 7). [22] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Goal of protecting children constituted legitim- ate state interest, but this goal would not be burdened by overturning Oregon's same-sex mar- riage prohibition, and thus prohibition could not survive rational basis review on this ground on four homosexual couples' equal protection challenge; Oregon had clear policy of supporting all children and of recognizing that same-sex couples were just as good as opposite-sex couples in parenting their children. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1), 109.050, 109.060, 109.243. [23] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Procreation was not vital to Oregon's legitimate interest in marriage, and thus Oregon's same-sex Page 6 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (242 of 518) marriage prohibition could not survive rational basis review on this ground on four homosexual couples' equal protection challenge. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1). [24] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Any governmental interest in responsible pro- creation was not advanced by Oregon's ban of same-sex marriage, and thus prohibition could not survive rational basis review on this ground on four homosexual couples' equal protection challenge; opposite-gender couples would continue to choose to have children responsibly or not, and those con- siderations were not impacted in any way by wheth- er same-gender couples were allowed to marry. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1). [25] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Any governmental interest in natural procre- ation was not advanced by Oregon's ban of same- sex marriage, and thus prohibition could not sur- vive rational basis review on this ground on four homosexual couples' equal protection challenge; Oregon law played no favorites between naturally and legitimately conceived children and those con- ceived via artificial insemination, and its interest was instead in child's well-being regardless of con- ception means. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1), 109.243. [26] Constitutional Law 92 3039 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)5 Scope of Doctrine in Gener- al 92k3038 Discrimination and Classific- ation 92k3039 k. In general. Most Cited Cases On an equal protection challenge, to justify classifications singling out a particular class of per- sons, the law must, at a minimum, contain some factual context tying the classification to the pur- pose sought to be achieved. U.S.C.A. Const.Amend. 14. [27] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) Page 7 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (243 of 518) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Well-being of Oregon's children was not en- hanced by state's same-sex marriage prohibition, and thus prohibition could not survive rational basis review on this ground on four homosexual couples' equal protection challenge, since prohibition destabilized and limited rights and resources avail- able to families of same-sex couples. U.S.C.A. Const.Amend. 14; West's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1). West Codenotes Held UnconstitutionalWest's Or.Const. Art. 15, 5A; West's Or.Rev. Stat. Ann. 106.010, 106.041(1), 106.150(1). Lake James H. Perriguey, Law Works, LLC, Lea Ann Easton, Dorsay & East- on LLP, Misha A.D. Isaak, Thomas R. Johnson, Perkins Coie, LLP, Kevin Diaz, American Civil Liberties Union, Portland, OR, Jennifer J. Middleton, Johnson, Johnson & Schaller, Eugene, OR, Amanda C. Goad, Rose Saxe, American Civil Liberties Union Foundation, Los Angeles, CA, for Plaintiffs. Anna M. Joyce, Oregon Department of Justice, Salem, OR, Mary Williams, Sheila H. Potter, Ore- gon Department of Justice, Katharine Von Ter Stegge, Jenny M. Madkour, Portland, OR, for De- fendants. OPINION McSHANE, District Judge: *1 The plaintiffs include four Oregon couples seeking marriage in Multnomah County. Although they meet the legal requirements of civil marriage in all other respects, their requests, for marriage li- censes have been or would be denied because each couple is of the same gender. I am asked to con- sider whether the state's constitutional and statutory provisions (marriage laws) that limit civil mar- riage to one man and one woman violate the United States Constitution. FN1 Because Oregon's marriage laws discriminate on the basis of sexual orientation without a rational relationship to any le- gitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amend- ment to the United States Constitution. THE PARTIES All of the plaintiffs FN2 share in the character- istics that we would normally look to when we de- scribe the ideals of marriage and family. They present in the record as loving and committed couples who have established long-term relation- ships. Each has solemnized that relationship in the presence of their families and friends. One couple legally married in Canada, and others temporarily obtained marriage licenses in Multnomah County in 2004. Three of the four couples are parents, and are involved in their children's schools and activities. They support each other financially and emotion- ally and, by all accounts, their lives have become more meaningful in the single life that they share together. All of the plaintiffs have worked in Oregon to support each other and their children. They are a highly educated and productive group of individu- als. Many of the plaintiffs work in the field of medicine and the health sciences. Mr. Griesar is a teacher. Mr. Rummell is a veteran of the United States Air Force. They pay taxes. They volunteer. They foster and adopt children who have been neg- lected and abused. They are a source of stability to their extended family, relatives, and friends. Despite the fact that these couples present so vividly the characteristics of a loving and support- ive relationship, none of these ideals we attribute to marriage are spousal prerequisites under Oregon law. In fact, Oregon recognizes a marriage of love with the same equal eye that it recognizes a mar- riage of convenience. It affords the same set of rights and privileges to Tristan and Isolde that it af- fords to a Hollywood celebrity waking up in Las Vegas with a blurry memory and a ringed finger. It does not, however, afford these very same rights to Page 8 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (244 of 518) gay and lesbian couples who wish to marry within the confines of our geographic borders. The defendants include the State Registrar, the Governor, and the Attorney General of Oregon, as well as the Assessor for Multnomah County. The defendants concede that Oregon's marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court de- clares the laws unconstitutional. FN3 The case, in this respect, presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between ad- versaries. BACKGROUND I. SameGender Marriage in Oregon and Meas- ure 36 *2 Article I, 20 of the Oregon Constitution prohibits granting privileges or immunities to any citizen or class of citizens that are not equally avail- able on the same terms to all citizens. In 1998, re- cognizing that same-gender couples were not per- mitted to marry, the Oregon Court of Appeals con- cluded Article I, 20 of the Oregon Constitution prohibited the state from denying insurance benefits to unmarried domestic partners of homosexual em- ployees. Tanner v. Oregon Health Sci. Univ., 157 Or.App. 502, 525, 971 P.2d 435 (1998). The state responded by providing benefits to same-gender couples who are able to demonstrate they share a committed relationship similar to a marital relation- ship. During this same period, challenges regarding the, rights available to same-gender couples began to appear in the national spotlight. In 2003, the Su- preme Judicial Court of Massachusetts concluded that Massachusetts's same-gender marriage ban vi- olated their state constitution. Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 969 (2003). With that ruling, Massachusetts became the first state to legalize same-gender marriage. On March 3, 2004, Multnomah County determ- ined that its failure, to issue marriage licenses to same-gender couples violated Article I, 20 of the Oregon Constitution. Li v. State, 338 Or. 376, 38384, 110 P.3d 91 (2005). In the following weeks, approximately 3000 gay and lesbian couples received marriage licenses in Multnomah County. Id. at 384, 110 P.3d 91. At the Governor's direction, the State Registrar refused to register the same-sex marriages and several same-gender couples brought a legal challenge to decide the inclusivity of Ore- gon's marriage laws. Id. Before the Supreme Court of Oregon weighed in on the issue, Oregon voters provided their inde- pendent judgment on the question by approving a 2004 ballot initiative known as Measure 36. That measure amended the state constitution to define marriage as a union composed of one man and one woman. Or. Const. art. 15, 5A. Measure 36 em- bedded constitutionally what the Oregon Supreme Court would later conclude the state's statutes had already required. Li, 338 Or. at 386, 110 P.3d 91 ([A]lthough nothing ... expressly states that mar- riage is limited to opposite-sex couples, the context ... leaves no doubt that, as a statutory matter, mar- riage in Oregon is so limited.). Nearly a year after Multnomah County began issuing marriage licenses to same-gender couples, those licenses were deemed invalid. Id. at 398, 110 P.3d 91. In 2007, the Oregon State Legislature passed the Oregon Family Farness Act, allowing same- gender couples to register their domestic partner- ships to receive certain state benefits. Oregon Fam- ily Fairness Act, 2007 Or. Laws, ch. 99, 2 (codified at Or.Rev.Stat. 106.305). Domestic part- nerships provided more equal treatment of gays and lesbians and their families, 106.305(6), by granting domestic partners similar rights and priv- ileges to those enjoyed by married spouses, 106.305(5). The Legislature acknowledged, however, that domestic partnerships did not include the magnitude of rights inherent in the definition of marriage. 106.305(7) (noting that numerous dis- tinctions will exist between these two legally recog- Page 9 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (245 of 518) nized relationships). In the declarations submitted to this court, the plaintiffs maintain domestic part- nerships have contributed greater confusion and ex- pense to the lives of gay and lesbian couples and their families. *3 Last summer, the United States Supreme Court declared 3 of the Defense Against Marriage Act (DOMA) unconstitutional. United States v. Windsor, U.S. , 133 S.Ct. 2675, 269596, 186 L.Ed.2d 808 (2013). As discussed below, DOMA defined marriage as a union between one man and one woman, 1 U.S.C. 7 (2012), thereby prohibiting the federal government from extending marriage benefits to legally wed, same-gender spouses, Windsor, 133 S.Ct. at 2683. The Court noted marriage regulations were traditionally a mat- ter of state concern and that New York sought to protect same-gender couples by granting them the right to marry. DOMA violated due process and equal protection principles because it impermissibly sought to injure a class of persons New York spe- cifically sought to protect. Windsor, 133 S.Ct. at 2693. The Court concluded [t]he Act's demon- strated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. Id. at 269394. Following the landmark decision in Windsor, Oregon concluded its own agencies must recognize same-gender marriages lawfully entered into in oth- er jurisdictions. State Defs.' Answer & Affirmative Defenses to Pls.' Am. Compl. Ex. A, ECF No. 581. FN4 The state also joined an amicus curiae brief to the Ninth Circuit Court of Appeals, which has been asked to invalidate a same-gender mar- riage ban in Nevada. Brief of Massachusetts, et al., as Amici Curiae in Supp. Mot.App. 2, Sevcik v. Sandoval (No. 1217668). In lending its support, the state endorsed the contention that same-sex couples form families, raise children, and avail themselves of the benefits and abide by the obliga- tions of marriage in the same manner as different- sex couples. Id. In so doing, the state effectively acknowledged that its legitimate interest in sustain- ing both families and communities would be furthered if gay- and lesbian couples were able to marry. Id. II. The Harm Caused to Plaintiffs by the State's Marriage Laws The state's marriage laws impact the plaintiffs in a myriad of ways. The laws frustrate the plaintiffs' freedom to structure a family life and plan for the future. Mr. Rummell did not receive a low-interest veteran loan to aid in purchasing a home because his income was not considered to- gether with Mr. West's income. Ms. Geiger had to ask her employer to extend spousal relocation bene- fits to Ms. Nelson; a benefit that automatically vests with married couples. When Ms. Chickadonz gave birth to her and Ms. Tanner's children, they encumbered adoption expenses in order for Ms. Tanner to be the legal parent of her own children. Domestic partnerships pledged to gay and les- bian couples rights and responsibilities approximat- ing those afforded to married couples. Or.Rev.Stat. 106.340(1)-(4). The plaintiffs submit that time has tarnished the promise of domestic partnerships. The plaintiffs explain that a general confusion per- sists regarding domestic partnerships. They en- counter institutional obstacles when lawyers, courts, and health care and funerary service pro- viders are unfamiliar with the rights that domestic partners are entitled to under the law. Domestic partners must draft advance medical directives to ensure they will be able to make important medical decisions on their partner's behalf should the neces- sity arise. See 127.635(2). Such rights and protec- tions pass automatically to married couples. 127.635(2)(b). Likewise, domestic partners must draw up legal devices to imitate marriage's estate- planning benefits. See 112.025, .035. Domestic partners are not guaranteed the same treatment at retirement as married couples. 106.340(6)-(8). *4 Oregon's marriage laws foreclose its same- gender couples (even those registered as domestic partners) from enjoying newly available federal re- Page 10 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (246 of 518) cognition and benefits. They cannot file joint feder- al income tax returns. Rev. Rul. 1317, 201338 I.R.B. 204. Instead, unmarried gay and lesbian couples pay for costly measures that account for their mutual incomes, expenses, and assets. Decl. Clift 4, ECF No. 56. Oregon's marriage laws also foreclose the pathway to citizenship that a non- national can access by import of their marriage to a United States citizen. Employer-provided health in- surance benefits covering unwed partners is feder- ally taxable income. See 26 U.S.C. 105(b), 106(b). Establishing joint ownership over an unwed couple's assets may trigger federal gift taxation. See Rev. Rul. 1317 at 203; 2503(b). Domestic part- nership dissolution is taxable, unlike in marriage, see 1041, as are the spousal-support payments arising from such dissolutions, see 71. As com- pared to divorce, federally qualified retirement plans are indivisible among separating domestic partners. See I.R.S. Notice 200830, 200812 I.R.B. 638. Gay and lesbian couples waiting for the right to marry in Oregon risk a surviving partner being found ineligible for a deceased partner's So- cial Security benefits. See Soc. Sec. Admin., SSA Pub. No. 0510084, Social Security: Survivors Be- nefits 5 (2013). Financial aid packages for the chil- dren of gay and lesbian families are calculated only on the basis of one parent's income. See 1087nn(b). Oregon's marriage laws weigh on the plaintiffs in ways less tangible, yet no less painful. The laws leave the plaintiffs and their families feeling de- graded, humiliated, and stigmatized. Plaintiffs con- sider the time, energy, and sacrifice they devote to building a meaningful life with their loved ones, but find their efforts less worthy in the eyes of the law. They face a tiered system of recognition that grants greater legal status to married felons, dead- beat parents, and mail-order brides. They see no ra- tionale for such treatment, and are angered by what they perceive as state-sanctioned discrimination against them. Accordingly, the plaintiffs request that the state's laws withholding civil marriage from same-gender couples be found unconstitutional. STANDARD OF REVIEW The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judg- ment as a matter of law. Fed.R.Civ.P. 56(a). DISCUSSION I. A State's Right to Define Marriage within Constitutional Bounds [1] [M]arriage is often termed ... a civil contract ... [but] it is something more than a mere con- tract.... It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of soci- ety, without which there would be neither civiliz- ation nor progress. *5 Maynard v. Hill, 125 U.S. 190, 21011, 8 S.Ct. 723, 31 L.Ed. 654 (1888). FN5 Society's sig- nificant interest in marriage is manifest by a state's rightful and legitimate concern for its citizens' marital statuses. Williams v. North Car- olina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 L.Ed. 279 (1942); see also Li, 338 Or. at 39192, 110 P.3d 91 (quoting Dakin v. Dakin, 197 Or. 69, 72, 251 P.2d 462 (1952) (The marital relationship [is] one in which the state is deeply concerned and over which it exercises a jealous dominion. )). As the state eloquently notes: Simply put, marriage matters. It matters not only for the individuals who decide to enter into the civil union, but also for the state. This is why the state links so many rights and protections to the decision to marry. Strong, stable marriages create unions in which children may be raised to be- come healthy and productive citizens, in which family members care for those who are sick or in need and would otherwise have to rely on gov- ernment assistance, and through which com- munity is built and strengthened. State Defs.' Resp. Mot. Summ. J. 1, ECF No. 64. A state's concern in regulating marriage in- cludes the power to decide what marriage is and who may enter into it. Windsor, 133 S.Ct. at 2691. Page 11 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (247 of 518) This principal role reflects the state governments' longstanding monopoly over marital relations, an arrangement prevailing even at the time of the Fed- eral Constitution's adoption. Id. [2][3] The federal government defers to state marriage authority, accepting that marital policies may vary from state to state. Id. Those variations reflect the dynamics of our federal system, which empowers citizens to seek a voice in shaping the destiny of their own times, Bond v. United States, U.S. , 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269 (2011), and to form[ ] a consensus respecting the way [they] treat each other in their daily contact and constant interaction with each other, Windsor, 133 S.Ct. at 2692. Although states have wide latit- ude in regulating marriage, any such laws must abide by the Constitution. Loving v. Virginia, 388 U.S. 1, 1112, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). [4][5] The Constitution commands that no state may deny to any person ... the equal protection of the laws. U.S. Const. amend. XIV, 1. This pledge of equal protection ensures that all persons similarly circumstanced shall be treated alike. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920). The clause pre- sumes that one class of citizens will remain entitled to the same benefits and burdens as the law affords to other classes. Yet, this presumption is tempered by the practical necessity that most legislation classifies for one purpose or another, granting a degree of favor to some and disadvantage to oth- ers. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The courts balance the constitutional principle with practical reality by tolerating laws that classify groups and individuals only if such laws are rationally related to a legitim- ate state purpose. Id. [6] States can and do rationally regulate mar- riage. A state may, for example, permit eighteen year olds to marry, but not twelve year olds. See Jonathan Todres, Maturity, 48 Hous. L.Rev. 1107, 1143 (2012). A state may not, however, prevent a white adult from marrying a non-white adult, Loving, 388 U.S. at 11, 87 S.Ct. 1817 (overturning one such anti-miscegenation law in Virginia), nor may it withhold marriage from either the destitute, Zablocki v. Redhail, 434 U.S. 374, 38788, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (overturning a Wiscon- sin law conditioning marriage on a non-custodial parent's ability to satisfy existing child-support ob- ligations), or the incarcerated, Turner v. Safley, 482 U.S. 78, 9699, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (overturning Missouri's requirement that in- mates receive a warden's permission to wed), su- perseded by statute, Religious Land Use and Insti- tutionalized Persons Act of 2000, Pub.L. No. 106274, 3, 114 Stat. 804. One lesson to borrow from these and similar precedents is that laws regu- lating marriage must advance legitimate state in- terests, and not a mere desire to harm a particular class of its citizens. II. The Windsor Decision and its Applicability to the Plaintiffs' Claims *6 As noted, DOMA was a federal attempt to regulate marriage. That law defined marriage and spouse to encompass opposite-gender couples only. See 1 U.S.C. 7. The definition's effect was to make legally married same-gender couples less equal than married opposite-gender couples by de- priving the former of numerous federal marital be- nefits. Windsor, 133 S.Ct. at 2694. That result frus- trated New York's rightful decision to confer the dignity and privilege of marriage upon gay and les- bian couples. Id. at 269596. In striking down the federal definition, the Supreme Court explained that the law's principal purpose and ... necessary ef- fect was to demean legally married gay and les- bian couples. Id. at 2695. [N]o legitimate purpose behind DOMA could overcome such injury. Id. at 2696. The case before me is not a reproduction of Windsor. There, the Supreme Court invalidated a federal act that impinged New York's ability to af- ford gay and lesbian couples the full entitlements of marriage. Id. at 2693 ([DOMA] ... impose[s] a dis- Page 12 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (248 of 518) advantage, a separate status ... upon all who enter into same-sex marriages made lawful by the un- questioned authority of the States.). Here, the plaintiffs challenge not federal but state law, one which reserves civil marriage to the exclusive en- joyment of opposite-gender couples. This and sim- ilar state marriage laws elsewhere are simply bey- ond the ambit of the Windsor ruling. See Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1278 (N.D.Okla.2014) ( Windsor does not answer whether a state may prohibit same-sex marriage in the. first instance.). Windsor may be distinguished from the present case in several respects. Yet, recounting such dif- ferences will not detract from the underlying prin- ciple shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state's mar- riage laws not degrade or demean the plaintiffs in violation of their rights to equal protection. See Windsor, 133 S.Ct. at 2695. III. The State's Marriage Laws Violate the Plaintiffs' Rights to Equal Protection As discussed above, although states may regu- late marriage, such laws must pass constitutional muster. Plaintiffs argue the state's marriage laws vi- olate their rights to equal protection. When analyz- ing a law under the Equal Protection Clause of the Fourteenth Amendment, the court first determines the appropriate level of scrutiny to apply. [7][8] Strict scrutiny, the most exacting level of scrutiny, is reserved for suspect classifications such as race or national origin. Johnson v. Califor- nia, 543 U.S. 499, 50506, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). Because suspect classifications raise special fears that they are motivated by an in- vidious purpose, courts must engage in a searching judicial inquiry to ferret out any illegit- imate uses of such classifications. Id. Under this level of review, the government has the burden of demonstrating the classifications are narrowly tailored to further a compelling government in- terest. Id. at 505, 125 S.Ct. 1141. *7 [9] Other classifications, such as those based on gender or illegitimacy, are subject to heightened scrutiny. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 44041, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Under this level of review, the classification must be substantially related to a sufficiently important government in- terest. Id. at 441, 105 S.Ct. 3249. [10] Most classifications are presumed to be valid and receive less-exacting judicial scrutiny, known as rational basis review. Under rational basis review, the Equal Protection Claus is satisfied if: (1) there is a plausible policy reason for the classification, (2) the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and (3) the relationship of the classification to its goal is not so attenuated as to render the distinction ar- bitrary or irrational. Bowers v. Whitman, 671 F.3d 905, 917 (9th Cir.2012) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)) (internal quotations omitted). A. Discriminatory Classification. [11] Plaintiffs argue the state's marriage laws discriminate based on gender, and therefore must receive heightened scrutiny. This argument reasons that because men may not marry other men, and women may not marry other women, the classifica- tion is necessarily one based on gender. Stated an- other way, if either person in a specific couple happened to be of the other gender, the couple could in fact marry. Because the classification im- pacts each couple based solely on the gender of each person, plaintiffs argue the classification must be categorized as one based on gender. I disagree. The state's marriage laws discriminate based on sexual orientation, not gender. In fact, the ban does not treat genders differently at all. Men and women are prohibited from doing the exact same thing: Page 13 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (249 of 518) marrying an individual of the same gender. The ban does not impact males and females differently. In- stead, the state's marriage laws classify same- gender couples differently than opposite-gender couples. While opposite-gender couples may marry a partner of their choice, same-gender couples may not. Plaintiffs argue the Supreme Court has rejected government arguments based on equal applica- tion of laws that discriminate based on suspect classes. See Loving, 388 U.S. at 89, 87 S.Ct. 1817. The discriminatory laws in Loving, however, are not applicable to Oregon's marriage laws. First, the Court specifically noted the anti-miscegenation laws at issue therebecause they involved racial classificationscould not survive an equal applic- ation explanation. Id. Second, the anti- miscegenation laws there were invidious racial discriminations, with proffered purposes of preserv[ing] the racial integrity of its citizens and preventing the corruption of bldod[.] Id. at 7, 87 S.Ct. 1817 (quoting Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, 756 (1955)). There is no such invidious gender-based dis- crimination here. The state's marriage laws clearly were meant to, and indeed accomplished the goal of, preventing same-gender couples from marrying. The targeted group here is neither males nor fe- males, but homosexual males and homosexual fe- males. Therefore, I conclude the state's marriage laws discriminate on the basis of sexual orientation, not gender. See Sevcik, 911 F.Supp.2d at 1005 (analyzing a similar Nevada law, the court con- cluded the law was not directed toward any one gender and did not affect one gender in a way demonstrating any gender-based animus, but was intended to prevent homosexuals from marrying). B. Applicable Level of Scrutiny *8 That the state's marriage laws discriminate based on sexual orientation does not answer the question of what level of scrutiny applies. For the past quarter century, laws discriminating on the basis of sexual orientation received rational basis review in the Ninth Circuit. High Tech Gays v. Def. Indus. Sec. Clearance Off., 895 F.2d 563, 574 (9th Cir.1990). In High Tech Gays, a class of plaintiffs challenged the Department of Defense's policy of refusing to grant security clearances to known or suspected gay applicants on equal protection grounds. Id. at 565. The court had to determine whether homosexuals were a suspect or quasi-suspect class justifying the classifications to heightened review. The court inquired whether homosexuals: 1) Have suffered a history of discrimination; 2) exhibit obvious immutable, or distinguishing characteristics that define them as a discrete group; and 3) show that they are a minority or politically powerless, or alternatively show that the statutory classification at issue burdens a fun- damental right. Id. at 573. The court concluded that although homosexuals suffered a history of discrimination, they did not meet the other criteria required of sus- pect classes. Therefore, classifications based on sexual orientation received rational basis review. Id. at 574. A Ninth Circuit panel recently considered whether High Tech Gays remains good law in light of Windsor. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 48084 (9th Cir.2014). After noting that Windsor was silent as to the precise level of scrutiny applied to the sexual orientation discrimination at issue there, the SmithKline court looked at what Windsor actually did in analyzing that equal protection claim. Id. at 480. After a thor- ough and persuasive analysis, the court concluded: In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Wind- sor requires that heightened scrutiny be applied to equal protection claims involving sexual ori- entation. Page 14 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (250 of 518) Id. at 481. [12] No mandate issued from SmithKline and, although neither party requested a rehearing en banc, at least one active judge of the Ninth Circuit made a sua sponte call for a rehearing en banc. March 27, 2014 Order. (No. 1117357, ECF No. 88). An appellate court's decision is not final until its mandate issues. Beardslee v. Brown, 393 F.3d 899, 901 (9th Cir.2004); accord United States v. Ruiz, 935 F.2d 1033, 1037 (9th Cir.1991) (citation and internal quotations omitted) ([T]he legitimacy of an expectation of finality of an appellate order depends on the issuance or not of the mandate re- quired to enforce the order.). Absent a mandate's issuance, the circuit retains jurisdiction of the case and may modify or rescind its opinion. Ruiz, 935 F.2d at 1037; accord Carver v. Lehman, 558 F.3d 869, 878 (9th Cir.2009). *9 In other words, the panel's decision in SmithKline is not yet a truly final and binding de- cision. The opinion may be modified, rescinded, or receive a majority vote for en banc review. I could independently conclude the Supreme Court did what SmithKline persuasively concluded it did. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (circuit panels and district courts may reject a prior panel's opinion when that opinion is effectively overruled by higher court). That is unnecessary here, as the state's marriage laws cannot withstand even the most relaxed level of scrutiny. C. Rational Basis Review [13][14][15] As described above, it is beyond question that Oregon's marriage laws place burdens upon same-gender couples that are not placed upon opposite-gender couples. This classification implic- ates the Equal Protection Clause. Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.). The Equal Protection Clause does not allow classifications drawn solely for the pur- pose of disadvantaging a particular group intention- ally singled out for unequal treatment. Id. For this reason, courts inquire whether the classification is rationally related to a legitimate government in- terest. Id. at 63233, 116 S.Ct. 1620. Courts pre- sume the classification is valid, declaring it uncon- stitutional only when the varying treatment of dif- ferent groups or persons is so unrelated to the achievement of any combination of legitimate pur- poses that we can only conclude that the legis- lature's actions were irrational. Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). That a majority of Oregon voters enacted Measure 36 in order to constitutionally embed such classifications makes no difference to this analysis. Romer, 517 U.S. at 635, 116 S.Ct. 1620. As noted by the state, justifications offered in enacting Measure 36 are similar to those offered by other states in defending other bans on same-gender marriage. One such justification is protecting tradi- tional definitions of marriage. Another is protecting children and encouraging stable families. As dis- cussed below, only the latter justification is a legit- imate state interest. Especially when viewed in light of the state's other official policies, many of which are unique to Oregon, the state's ban on same- gender marriage is clearly unrelated to protecting children and encouraging stable families. The mar- riage laws place the plaintiffs and other gay and lesbian couples seeking to marry in Oregon at a dis- advantage, and the laws do so without any ration- ally related government purpose. i. Tradition [16][17][18] Marriage has traditionally been limited to opposite-gender couples. That the tradi- tional definition of marriage excluded same-gender couples, however, does not end the inquiry. See Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (Ancient lineage of a leg- al concept does not give it immunity from attack for lacking a rational basis.). If tradition alone was sufficient to withstand rational basis review, the right to equal protection would be quite hollow. Page 15 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (251 of 518) Tradition would simply turn rational basis review into a rubber stamp condoning discrimination against longstanding, traditionally oppressed minor- ity classes everywhere. Limiting civil marriage to opposite-gender couples based only on a traditional definition of marriage is simply not a legitimate purpose. Golinski v. Off. of Pers. Mgmt., 824 F.Supp.2d 968, 998 (N.D.Cal.2012) ([T]he argu- ment that the definition of marriage should remain the same for the definition's sake is a circular argu- ment, not a rational justification. Simply stating what has always been does not address the reasons for it. The mere fact that prior law, history, tradi- tion, the dictionary and the Bible have defined a term does not give that definition a rational basis, it merely states what has been.). *10 [19] Certain traditions may reflect personal religious and moral beliefs. Such beliefs likely in- formed the votes of many who favored Measure 36. However, as expressed merely a year before Meas- ure 36's passage, [m]oral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classific- ations must not be drawn for the purpose of disad- vantaging the group burdened by the law. Lawrence v. Texas, 539 U.S. 558, 583, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (O'Connor, J., con- curring in the judgment) (quoting Romer, 517 U.S. at 633, 116 S.Ct. 1620). That year, the Supreme Court concluded a Texas law criminalizing private, consensual, sexual acts between two adults was un- constitutional. The Court explicitly adopted Justice Stevens' dissent in Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), another case involving laws criminalizing homo- sexual conduct. Lawrence, 539 U.S. at 57778, 123 S.Ct. 2472. Over a vigorous dissent from Justice Scalia, the Court adopted Justice Stevens' earlier conclusion that the fact that the governing major- ity in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice[.] Id. at 577, 123 S.Ct. 2472. This remains the law of the land, that mere moral disapproval of a particular group of citizens is not a legitimate reason for in- tentionally withholding rights and benefits from that group. [20] To be clear, this case deals with civil mar- riage. The state recognizes that marriage is a civil contract. Or.Rev.Stat. 106.010. It is that right, to enter into a civil contract of marriage, and the right to share in the benefits and obligations flowing from that civil contract, that are at issue here. Judge John G. Heyburn II of the Western District of Ken- tucky, one of an ever-increasingand so far unan- imousnumber of state and federal judges to strike down similar state bans following Windsor, put it very well: Our religious and social traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for them- selves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. As- signing a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons. The beauty of our Constitution is that it accom- modates our individual faith's definition of mar- riage while preventing the government from un- lawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it. Bourke v. Beshear, F.Supp.2d , , 2014 WL 556729, at *10 (W.D.Ky.2014). Overturning the discriminatory marriage laws will not upset Oregonians' religious beliefs and freedoms. FN6 As tradition alone does not provide a legitimate state interest supporting classifications based on sexual orientation, I turn to other possible Page 16 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (252 of 518) justifications for the state's marriage laws. ii. Protecting Children and Encouraging Stable Families *11 Supporters of Measure 36, and defenders of similar marriage laws throughout the country, of- ten turn to variations of the state's interest in pro- tecting children and families in supporting such laws. These arguments range from state interests in encouraging responsible and natural procreation to arguments that children fare better in opposite- gender families. Although protecting children and promoting stable families is certainly a legitimate governmental interest, the state's marriage laws do not advance this interestthey harm it. [21] Although the state has a legitimate interest in promoting stable families, its interest does not stop with families of opposite-gender couples. By enabling gay and lesbian couples to enter domestic partnerships, the state acknowledged the value and importance such families can provide. Specifically, the Oregon Legislature, in enacting the Oregon Family Fairness Act, found that [t]his state has a strong interest in promoting stable and lasting fam- ilies, including the families of same-sex couples and their children. All Oregon families should be provided with the opportunity to obtain necessary legal protections and status and the ability to achieve their fullest potential. 106.305(4). The legislature also found that [m]any gay and lesbian Oregonians have formed lasting, committed, caring and faithful relationships with individuals of the same sex, despite long-standing social and econom- ic discrimination. These couples live together, par- ticipate in their communities together and often raise children and care for family members togeth- er, just as do couples who are married under Ore- gon law. 106.305(3). With this finding, the legis- lature acknowledged that our communities depend on, and are strengthened by, strong, stable families of all types whether headed by gay, lesbian, or straight couples. Yet, because the state is unable to extend to op- posite-gender relationships the full rights, benefits, and responsibilities of marriage, it is forced to bur- den, demean, and harm gay and lesbian couples and their families so long as its current marriage laws stand. Although the state created domestic partner- ships to ensure[e] more equal treatment of gays and lesbians and their families, 106.305(6), it also recognized domestic partnerships are not equal to civil marriage, 106.305(7). Recognizing do- mestic partnerships are not equal to marriage simply states the obvious. In Windsor, Justice Kennedy recently pointed out rather dramatically these inequalities. Justice Kennedy recognized that prohibiting same-gender couples from joining in marriage humiliates children being raised by same-gender couples and makes it even more dif- ficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives. 133 S.Ct. at 2694. Creating second-tier families does not advance the state's strong interest in promoting and protecting all families. *12 [22] Nor does prohibiting same-gender marriage further Oregon's interest in protecting all children. For example, the state's interest in protect- ing children concerns more than just those children created in wedlock. 109.060 (relationship between child and parents is the same regardless of parents' marital status). The state has an interest in protecting all children, including adopted children. 109.050 (relationship of adoptive child and adopt- ive parents is the same as would exist if the child had been the adoptive parents' biological child). And the state does not treat naturally and legitim- ately conceived children any different than chil- dren conceived in other ways. 109.243 (rights between a child produced by artificial insemination and a mother's husband are the same as those that exist in a naturally conceived birth). When the-state seeks homes to provide security and support for vulnerable children, it does so without asking if the adults in such households are married, same-gender partnered, or single. St. Defs.' Resp. Mot. Summ. J. 22, ECF No. 64. The state's policies clearly demon- strate its interest in supporting all children, includ- Page 17 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (253 of 518) ing children raised by same-gender couples. The above policies make perfect sense. Ore- gon's policies accept that children fare the same whether raised by opposite-gender or same-gender couples. See DeBoer v. Snyder, 973 F.Supp.2d 757, 770 (E.D.Mich.2014) (noting approximately 150 sociological and psychological studies confirm there is simply no scientific basis to conclude that children raised in same-sex households fare worse than those raised in heterosexual households.); De Leon v. Perry, 975 F.Supp.2d 632, 654 (W.D.Tex.2014) ([S]ame-sex couples can be just as responsible for a child's welfare as the countless heterosexual couples across the nation.); Bostic v. Rainey, 970 F.Supp.2d 456, 479 (E.D.Va.2014) (Same-sex couples can be just as responsible for a child's existence as the countless couples across the nation who choose, or are compelled to rely upon, enhanced or alternative reproduction methods for procreation.); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 980 (N.D.Cal.2010) (finding [r]he gender of a child's parent is not a factor in a child's adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian par- ents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.). The realization that same-gender couples make just as good parents as opposite- gender couples is supported by more than just com- mon sense; it is also supported by the vast major- ity of scientific studies examining the issue. See Brief of the Am. Psychol. Ass'n, et al. as Amici Curia, United States v. Windsor, 133 S.Ct. 2675, 269596 (2013) (12307), 2013 WL 871958, at *19 (listing studies). *13 [23] Some argue the state's interest in re- sponsible procreation supports same-gender mar- riage bans. Procreation, however, is not vital to the state's interest in marriage. Procreative potential is not a marriage prerequisite. 106.010 (marriage is a civil contract between males and females at least 17 years of age). There is no prohibition to mar- riage as to sterile or infertile persons, or upon couples who have no desire to have children. The only prohibited marriages, other than those between same-gender couples, are those involving first cous- ins or those in which either party is already mar- ried. 106.020. [24] Additionally, any governmental interest in responsible procreation is not advanced by denying marriage to gay a lesbian couples. There is no lo- gical nexus between the interest and the exclusion. See Bishop, 962 F.Supp.2d. at 1291 ([T]here is no rational link between excluding same-sex couples from marriage and the goals of encouraging responsible procreation....). Opposite-gender couples will continue to choose to have children re- sponsibly or not, and those considerations are not impacted in any way by whether same-gender couples are allowed to marry. Nothing in this court's opinion today will effect the miracle of birth, accidental or otherwise. A couple who has had an unplanned child has, by definition, given little thought to the outcome of their actions. The fact that their lesbian neighbors got married in the month prior to conception seems of little import to the stork that is flying their way. [25] The logical nexus between the state's in- terest in natural procreation and denying mar- riage to same-gender couples is as unpersuasive as the argument in favor of responsible procreation. Oregon law plays no favorites between naturally and legitimately conceived children and those con- ceived via artificial insemination. 109.243 (so long as the husband consented to the artificial in- semination, the child will have the same rights and relationship as between naturally conceived chil- dren). The state's interest is in a child's well-being regardless of the means of conception. There is simply no rational argument connecting this interest to the prohibition of same-gender marriage. [26] Although protecting children and promot- ing stable families is a legitimate governmental Page 18 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (254 of 518) purpose, prohibiting same-gender couples from marrying is not rationally related to that interest. To justify classifications singling out a particular class of persons, the law must, at a minimum, contain some factual context tying the classification to the purpose sought to be achieved. Romer, 517 U.S. at 63233, 116 S.Ct. 1620. There is no such factual context here. In fact, the relationship between pro- hibiting same-gender couples from marrying and protecting children and promoting stable families is utterly arbitrary and completely irrational. The state's marriage laws fly in the face of the state's strong interest in promoting stable and lasting families, including the families of same-sex couples and their children. 106.305(4). *14 [27] Expanding the embrace of civil mar- riage to gay and lesbian couples will not burden any legitimate state interest. The attractiveness of mar- riage to opposite-gender couples is not derived from its inaccessibility to same-gender couples. See Perry, 704 F.Supp.2d at 972 (Permitting same-sex couples to marry will not affect the number of op- posite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise af- fect the stability of opposite-sex marriages.). The well-being of Oregon's children is not enhanced by destabilizing and limiting the rights and resources available to gay and lesbian families. See Oberge- fell v. Wymyslo, 962 F.Supp.2d 968, 99495 (S.D.Ohio 2013) (The only effect the bans have on children's well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally mar- ried.). The state's marriage laws unjustifiably treat same-gender couples differently than opposite- gender couples. The laws assess a couple's fitness for civil marriage based on their sexual orientation: opposite-gender couples pass; same-gender couples do not. No legitimate state purpose justifies the pre- clusion of gay and lesbian couples from civil mar- riage. CONCLUSION I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil mar- riage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian famil- ies. It was these same objections that led to the pas- sage of Measure 36 in 2004. Generations of Amer- icans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I re- member that one of the more popular, playground games of my childhood was called smear the queer FN7 and it was played with great zeal and without a moment's thought to today's political cor- rectness. On a darker level, that same worldview led to an environment of cruelty, violence, and self- loathing. It was but 1986 when the United States Supreme Court justified, on the basis of a millennia of moral teaching, the imprisonment of gay men and lesbian women who engaged in con- sensual sexual acts. Bowers, 478 U.S. at 197, 106 S.Ct. 2841 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. Even today I am reminded of the legacy that we have be- queathed today's generation when my son looks dis- missively at the sweater I bought him for Christmas and, with a roll of his eyes, says dad ... that is so gay. It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the ex- pression of these moral viewpoints, it equally pro- tects the minority from being diminished by them. It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading God Hates Fags make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain Page 19 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (255 of 518) rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities. *15 My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Famil- ies who we would expect our Constitution to pro- tect, if not exalt, in equal measure. With discern- ment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater com- munity. Where will this all lead? I know that many sug- gest we are going down a slippery slope that will have no moral boundaries. To those who truly har- bor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise. ORDER TO FOLLOW. ORDER *16 The Court, having considered the Plaintiffs' Motions for Summary Judgment (ECF Nos. 23 and 42), the Defendants' Responses (ECF Nos. 48 and 64), the oral arguments made by all parties on April 23, 2014, and the briefs filed by amicus (ECF Nos. 66, 70, and 79), GRANTS sum- mary judgment in favor of Plaintiffs. The Court finds that there is no legitimate state interest that would justify the denial of the full and equal recognition, attendant rights, benefits, protec- tions, privileges, obligations, responsibilities, and immunities of marriage to same-gender couples solely on the basis that those couples are of the same gender. NOW, THEREFORE, The Court GRANTS the Motions for Summary Judgment (ECF Nos. 23 and 42) filed by the plaintiffs in each of the consolidated cases. The Court hereby DECLARES that Article 15, section 5A, of the Oregon Constitution violates the Equal Protection Clause of the Fourteenth Amend- ment to the United States Constitution, and that as such it is void and unenforceable. Defendants and their officers, agents, and employees are PERMAN- ENTLY ENJOINED from enforcing Article 15, section 5A, of the Oregon Constitution. The Court also DECLARES that ORS 106.010, ORS 106.041(1), and ORS 106.150(1) violate the Equal Protection Clause and are unenforceable to the extent that they would prohibit a person from marrying another person of the same gender, or would deny same-gender couples the right to marry with full and equal recognition, attendant rights, be- nefits, privileges, obligations, responsibilities, and immunities of marriage, where the couple would be otherwise qualified to marry under Oregon law. De- fendants and their officers, agents, and employees are PERMANENTLY ENJOINED from enforcing or applying those statutesor any other, state or local law, rule, regulation, or ordinanceas the basis to deny marriage to same-gender couples oth- erwise qualified to marry in Oregon, or to deny married same-gender couples any of the rights, be- nefits, privileges, obligations, responsibilities, and immunities that accompany marriage in Oregon. The Court DECLARES that the Equal Protec- tion Clause requires recognition of marriages of same-gender couples legally performed in other jur- isdictions, where those marriages are in all other re- spects valid under Oregon law, and that no state or local law, rule, regulation, or ordinance can deny recognition of a same-gender couple's marriage val- idly performed in another jurisdiction. The Court PERMANENTLY ENJOINS Defendants and their officers, agents, and employees from denying that recognition. This Order shall be effective immediately upon filing. *17 IT IS SO ORDERED. Page 20 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (256 of 518) FN1. In 1972, the Supreme Court found a lack of substantial federal question in the appeal of two men seeking to marry one another after the Minnesota Supreme Court rejected their equal protection and due pro- cess claims. Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), dismissing appeal from 291 Minn. 310, 191 N.W.2d 185 (1971). Considering 40 years of Supreme Court decisions, the Court's summary order in Baker yields no lasting precedential effect in 2014. Kitchen v. Herbert, 961 F.Supp.2d 1181, 119495 (D.Utah 2013) ([D]octrinal developments in the Court's analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbi- ans demonstrate that the Court's summary dismissal in Baker has little if any preced- ential effect today.); accord DeBoer v. Snyder, 973 F.Supp.2d 757, n. 6 (E.D.Mich.2014); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1277 (N.D.Okla.2014); De Leon v. Perry, 975 F.Supp.2d 632, 64849 (W.D.Tex.2014); Bostic v. Rainey, 970 F.Supp.2d 456, 46970 (E.D.Va.2014); but see Sevcik v. Sandoval, 911 F.Supp.2d 996, 1003 (D.Nev.2012) ([T]he present challenge is in the main a garden-variety equal protec- tion challenge precluded by Baker.). FN2. Plaintiff Basic Rights Education Fund is a civil rights organization dedic- ated to education about and advocacy for equal rights for lesbian, gay, bisexual, and transgender Oregonians[.] Rummell Mem. Supp. Mot. Summ. J., 5, ECF No. 33. FN3. The record must reflect that Mult- nomah County concluded 10 years ago that denying marriage licenses to same-gender couples violated the Oregon Constitution. Walruff's Resp. Mot. Summ. J. 1, ECF No. 59. (The County is proud to have stood firm on this core civil rights issue a decade ago when backing marriage rights for all was neither easy nor politically safe.). Still, due to the State's marriage laws, Multnomah County requires a court order to resume issuing marriage licenses to same-gender couples. FN4. The State's recognition of out- of-state same-gender marriages is limited to administrative agencies, and does not apply to the court system, local govern- ments, or the private sector. Or. Admin. R. 1050100018 (2013). FN5. It might be more helpful to think of marriage as just marriagea relationship out of which spring duties to both spouse and society and from which are derived rights, [ ] such as the right to society and services and to conjugal love and affec- tionrights which generally prove to be either priceless or worthless, but which none the less the law sometimes attempts to evaluate in terms of money. Williams v. North Carolina, 317 U.S. 287, 317, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (Jackson, J., dissenting). FN6. The New Mexico Supreme Court succinctly noted what religious impact al- lowing same-gender marriage would have: Our holding will not interfere with the re- ligious freedom of religious organizations or clergy because (1) no religious organiz- ation will have to change its policies to ac- commodate same-gender couples, and (2) no religious clergy will be required to sol- emnize a marriage in contravention of his or her religious beliefs. Griego v. Oliver, 316 P.3d 865, 871 (2013); see also Kit- chen, 961 F.Supp.2d at 1214 ([T]he court notes that its decision does not mandate any change for religious institutions, which Page 21 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (257 of 518) may continue to express their own moral viewpoints and define their own traditions about marriage.). FN7. The game entailed boys tackling one another until one survivor remained standing. Frazier v. Norton, 334 N.W.2d 865, 866 (S.D.1983). Children today con- tinue to play the game, now known as kill the carrier. D.Or.,2014. Geiger v. Kitzhaber --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) END OF DOCUMENT Page 22 --- F.Supp.2d ----, 2014 WL 2054264 (D.Or.) (Cite as: 2014 WL 2054264 (D.Or.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-1 Filed: 07/29/2014 Pages: 258 (258 of 518)
Nos. 14-2386, 14-2387, 14-2388
In The United States Court of Appeals For The Seventh Circuit
MARILYN RAE BASKIN, et al., Plaintiffs-Appellees, v.
GREG ZOELLER, et al., Defendants-Appellants.
MIDORI FUJII, et al., Plaintiffs-Appellees, v.
COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF REVENUE, in his official capacity, et al., Defendants-Appellants.
PAMELA LEE, et al., Plaintiffs-Appellees, v.
BRIAN ABBOTT, et al., Defendants-Appellants.
On Appeal From The United States District Court For The Southern District of Indiana Case Nos. 1:14-cv-00355-RLY-TAB, 1:14-cv-00404-RLY-TAB, 1:14-cv-00406-RLY-MJD The Honorable Richard L. Young Presiding
SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES VOL. 2 OF 2 Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (259 of 518)
Paul D. Castillo (Counsel of Record) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219
Jordan M. Heinz Brent P. Ray Dmitriy G. Tishyevich Melanie MacKay Scott Lerner KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654
Camilla B. Taylor LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, Illinois 60603
Counsel for Plaintiffs-Appellees Marilyn Rae Baskin, et al.
Kenneth J. Falk (Counsel of Record) Gavin M. Rose Kelly R. Eskew ACLU OF INDIANA 1031 East Washington Street Indianapolis, Indiana 46202
Sean C. Lemieux LEMIEUX LAW 23 East 39th Street Indianapolis, Indiana 46205
James Esseks Chase Strangio AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004
Counsel for Plaintiffs-Appellees Midori Fujii, et al.
William R. Groth (Counsel of Record) FILLENWARTH DENNERLINE GROTH & TOWE LLP 429 E. Vermont Street, Suite 200 Indianapolis, Indiana 46202
Karen Celestino-Horseman Of Counsel, AUSTIN & JONES, P.C. One North Pennsylvania Street, Suite 220 Indianapolis, Indiana 46204
Mark W. Sniderman SNIDERMAN NGUYEN, LLP 47 South Meridian Street, Suite 400 Indianapolis, Indiana 46204 Kathleen M. Sweeney SWEENEY HAYES LLC 141 East Washington, Suite 225 Indianapolis, Indiana 46204
Counsel for Plaintiffs-Appellees Pamela Lee, et al. Additional Counsel Listed on Signature Block Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (260 of 518)
Dated: July 29, 2014
Respectfully submitted,
/s/ Jordan M. Heinz
Jordan M. Heinz Brent P. Ray Dmitriy G. Tishyevich Melanie MacKay Scott Lerner KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000 jordan.heinz@kirkland.com brent.ray@kirkland.com dmitriy.tishyevich@kirkland.com melanie.mackay@kirkland.com scott.lerner@kirkland.com
Barbara J. Baird LAW OFFICE OF BARBARA J. BAIRD 445 North Pennsylvania Street, Suite 401 Indianapolis, Indiana 46204-0000 (317) 637-2345 bjbaird@bjbairdlaw.com
Counsel for Plaintiffs-Appellees Marilyn Rae Baskin, et al.
Paul D. Castillo (Counsel of Record) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219 (214) 219-8585, ext. 242 pcastillo@lambdalegal.org
Camilla B. Taylor LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, Illinois 60603 (312) 663-4413 ctaylor@lambdalegal.org
/s/ Kenneth J. Falk Kenneth J. Falk (Counsel of Record) Gavin M. Rose Kelly R. Eskew ACLU OF INDIANA 1031 East Washington Street Indianapolis, Indiana 46202 (317) 635-4059 kfalk@aclu-in.org grose@aclu-in.org keskew@aclu-in.org
/s/ Sean C. Lemieux Sean C. Lemieux LEMIEUX LAW 23 East 39th Street Indianapolis, Indiana 46205 (317) 985-5809 sean@lemieuxlawoffices.com
James Esseks Chase Strangio AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 (212) 549-2627 jesseks@aclu.org cstrangio@aclu.org
Counsel for Plaintiffs-Appellees Midori Fujii, et al.
/s/ Karen Celestino-Horseman Karen Celestino-Horseman Of Counsel, AUSTIN & JONES, P.C. One North Pennsylvania Street, Suite 220 Indianapolis, Indiana 46204 (317) 632-5633 karen@kchorseman.com
Mark W. Sniderman SNIDERMAN NGUYEN, LLP 47 South Meridian Street, Suite 400 Indianapolis, Indiana 46204 (317) 361-4700 mark@snlawyers.com
Robert A. Katz Indiana University McKinney School of Law 530 West New York Street, Room 349 Indianapolis, Indiana 46202
Counsel for Plaintiffs-Appellees Pamela Lee, et al. /s/ William R. Groth William R. Groth (Counsel of Record) FILLENWARTH DENNERLINE GROTH & TOWE, LLP 429 East Vermont Street, Suite 200 Indianapolis, Indiana 46202 (317) 353-9363 wgroth@fdgtlaborlaw.com
Kathleen M. Sweeney SWEENEY HAYES LLC 141 East Washington Street, Suite 225 Indianapolis, Indiana 46204 (317) 491-1050 ksween@gmail.com
I hereby certify that on July 29, 2014, I caused a true and correct copy of the foregoing SUPPLEMENTAL APPENDIX OF PLAINTIFFS-APPELLEES (VOL. 2 OF 2) to be electronically filed with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
Unpublished Cases Cited in Brief of Plaintiffs-Appellees No. Case 9 Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) 10 Huntsman v. Heavlin, No. 2014-CA-305-K (Monroe Cnty. Cir. Ct. July 17, 2014) 11 Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014) 12 Latta v. Otter, No. 1:13-cv-00482, 2014 WL 1909999 (D. Idaho May 13, 2014) 13 Lee v. Orr, 13-cv-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) 14 Love v. Beshear, No. 3:13-cv-750, 2014 WL 2957671 (W.D. Ky. July 1, 2014) 15 Pareto v. Ruvin, No. 14-1661 (Miami-Dade Cnty. Cir. Ct. July 25, 2014) 16 Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) 17 United States v. Windsor, No. 12-307, 2013 WL 267026 (Jan. 22, 2013) 18 Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014) 19 Wright v. Arkansas, No. 60CV-13-2662, 2014 WL 1908815 (Pulaski Cnty. Cir. Ct. May 9, 2014)
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (264 of 518) Only the Westlaw citation is currently available. United States District Court, S.D. Ohio. Brittani HENRY, et al., Plaintiffs, v. Lance HIMES, et al., Defendants. Case No. 1:14cv129. Signed April 14, 2014. Background: Same-sex couples married in juris- dictions that provided for such marriages brought action against state officials, alleging ban on same- sex marriages in Ohio violated the Fourteenth Amendment. Couples moved for declaratory judg- ment and permanent injunction. Holdings: The District Court, Timothy S. Black, J., held that: (1) intermediate scrutiny applied; (2) Ohio's interest in preserving the traditional definition of marriage was not a legitimate justi- fication; (3) Ohio's refusal to recognize same-sex marriages performed in other jurisdictions was not justified under heightened or rational basis review by its preference for procreation or childrearing by het- erosexual couples; and (4) refusal to recognize same-sex marriages per- formed in other jurisdictions caused irreparable harm. Motion granted. West Headnotes [1] Civil Rights 78 1450 78 Civil Rights 78III Federal Remedies in General 78k1449 Injunction 78k1450 k. In General. Most Cited Cases A party is entitled to a permanent injunction if it can establish that it suffered a constitutional viol- ation and will suffer continuing irreparable injury for which there is no adequate remedy at law. [2] Injunction 212 1009 212 Injunction 212I Injunctions in General; Permanent Injunc- tions in General 212I(A) Nature, Form, and Scope of Remedy 212k1008 Discretionary Nature of Rem- edy 212k1009 k. In General. Most Cited Cases It lies within the sound discretion of a district court to grant or deny a motion for permanent in- junction. [3] Constitutional Law 92 4384 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4384 k. In General. Most Cited Cases While states have a legitimate interest in regu- lating and promoting marriage, the fundamental right to marry protected by the Fourteenth Amend- ment due process clause belongs to the individual. U.S.C.A. Const.Amend. 14. [4] Constitutional Law 92 4384 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4384 k. In General. Most Cited Cases Page 1 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (265 of 518) Constitutional Law 92 4475 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)25 Other Particular Issues and Applications 92k4475 k. In General. Most Cited Cases Under Fourteenth Amendment due process, the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. U.S.C.A. Const.Amend. 14. [5] Constitutional Law 92 1052 92 Constitutional Law 92VII Constitutional Rights in General 92VII(A) In General 92k1052 k. Fundamental Rights. Most Cited Cases Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. [6] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and Civil Uni- ons. Most Cited Cases Intermediate scrutiny applied in action alleging Ohio's ban on same-sex marriages violated Four- teenth Amendment substantive due process. U.S.C.A. Const.Amend. 14; Ohio Const. Art. 15, 11; Ohio R.C. 3101.01(C). [7] Constitutional Law 92 1045 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)5 Effect of Determination 92k1045 k. In General. Most Cited Cases Unconstitutional laws cannot stand, even when passed by popular vote. [8] Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-Sex Marriage. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of Foreign Union. Most Cited Cases Ohio's interest in preserving the traditional definition of marriage was not a legitimate justi- fication for its refusal to recognize same-sex mar- riages validly performed in other jurisdictions, and, therefore, refusal was unconstitutional on its face as in violation of Fourteenth Amendment substantive due process; marriage laws implicated individuals' property, inheritance, and family interests, which included identifying parents on birth certificates. U.S.C.A. Const.Amend. 14; Ohio Const. Art. 15, 11; Ohio R.C. 3101.01(C). [9] Constitutional Law 92 4384 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children Page 2 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (266 of 518) 92k4383 Marital Relationship 92k4384 k. In General. Most Cited Cases State regulation of marriage is subject to con- stitutional guarantees and the fact that each state has the exclusive power to create marriages within its territory does not logically lead to the conclu- sion that states can nullify already-established mar- riages absent due process of law. U.S.C.A. Const.Amend. 14. [10] Constitutional Law 92 3082 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3069 Particular Classes 92k3082 k. Sexual Orientation. Most Cited Cases Classifications based on sexual orientation must pass muster under heightened scrutiny to sur- vive constitutional challenge under Fourteenth Amendment equal protection. U.S.C.A. Const.Amend. 14. [11] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and Civil Uni- ons. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of Foreign Union. Most Cited Cases Ohio's refusal to recognize same-sex marriages validly performed in other jurisdictions was not jus- tified under heightened or rational basis review by Ohio's preference for procreation or childrearing by heterosexual couples, and, therefore, refusal was unconstitutional on its face as in violation of Four- teenth Amendment equal protection; overwhelming scientific consensus, based on decades of peer- reviewed scientific research, showed that children raised by same-sex couples were just as well adjus- ted as those raised by heterosexual couples. U.S.C.A. Const.Amend. 14; Ohio Const. Art. 15, 11; Ohio R.C. 3101.01(C). [12] Civil Rights 78 1456 78 Civil Rights 78III Federal Remedies in General 78k1449 Injunction 78k1456 k. Other Particular Cases and Contexts. Most Cited Cases Declaratory Judgment 118A 92.1 118A Declaratory Judgment 118AII Subjects of Declaratory Relief 118AII(B) Status and Legal Relations 118Ak92 Marital Status 118Ak92.1 k. In General. Most Cited Cases Declaratory Judgment 118A 387 118A Declaratory Judgment 118AIII Proceedings 118AIII(G) Judgment 118Ak386 Executory or Coercive Relief 118Ak387 k. Injunction. Most Cited Cases Ohio's refusal to recognize same-sex marriages performed in other jurisdictions in violation of Fourteenth Amendment substantive due process and equal protection caused irreparable harm to same- sex couples validly married outside Ohio, and, therefore, warranted declaratory relief and perman- ent injunction prohibiting enforcement of laws that banned recognition of those marriages; refusal to recognize marriages implicated couples' property, inheritance, and family interests, which included Page 3 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (267 of 518) identifying parents on birth certificates, and, without injunction, couples would suffer delays, bureaucratic complications, increased costs, and in- vasions of privacy, including questioning their legal status as parents. U.S.C.A. Const.Amend. 14; Ohio Const. Art. 15, 11; Ohio R.C. 3101.01(C). West Codenotes Held UnconstitutionalOhio R.C. 3101.01(C); Ohio Const. Art. 15, 11Alphonse Adam Gerhard- stein, Jacklyn Gonzales Martin, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Lisa Tal- madge Meeks, Newman & Meeks Co. LPA, Ellen Essig, Cincinnati, OH, Marshall Currey Cook, Susan L. Sommer, Lambda Legal Defense and Edu- cation Fund, Inc., New York, NY, Paul D. Castillo, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, for Plaintiffs. Peter J. Stackpole, City of Cincinnati, Cincinnati, OH, Bridget C. Coontz, Ryan L. Richardson, Zach- ery Paul Keller, Ohio Attorney General, Columbus, OH, for Defendants. ORDER GRANTING PLAINTIFFS' MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION TIMOTHY S. BLACK, District Judge. *1 On December 23, 2013, this Court ruled in no uncertain terms that: Article 15, Section 11, of the Ohio Constitu- tion, and Ohio Revised Code Section 3101.01(C) [Ohio's marriage recognition bans], violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out- of-state marriage recognized and accepted as leg- al in Ohio, are denied their fundamental right to marriage recognition without due process of law; and are denied their fundamental right to equal protection of the laws when Ohio does recognize comparable heterosexual marriages from other jurisdictions, even if obtained to circumvent Ohio law. Obergefell v. Wymyslo, 962 F.Supp.2d 968, 997 (S.D.Ohio 2013). The Obergefell ruling was constrained by the limited relief requested by the Plaintiffs in that case, but the analysis was nevertheless universal and unmitigated, and it directly compels the Court's conclusion today. The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State's ongoing arbitrary dis- crimination on the basis of sexual orientation, and, therefore, Ohio's marriage recognition bans are facially unconstitutional and unenforceable under any circumstances. FN1 It is this Court's responsibility to give meaning and effect to the guarantees of the federal constitu- tion for all American citizens, and that responsibil- ity is never more pressing than when the funda- mental rights of some minority of citizens are im- pacted by the legislative power of the majority. As the Supreme Court explained over 70 years ago: The very purpose of a Bill of Rights was to with- draw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the out- come of no elections. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (emphasis supplied). This principle is embodied by the Court's decision today and by the ten out of ten federal rulings since the Supreme Court's hold- ing in United States v. Windsorall declaring un- constitutional and enjoining similar bans in states across the country. FN2 The pressing and clear nature of the ongoing constitutional violations em- Page 4 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (268 of 518) bodied by these kinds of state laws is evidenced by the fact the Attorney General of the United States and eight state attorneys general have refused to de- fend provisions similar to Ohio's marriage recogni- tion bans. (Doc. 25 at 2). This civil action is now before the Court on Plaintiffs' Motion for Declaratory Judgment and Permanent Injunction (Doc. 18) and the parties' re- sponsive memoranda. (Docs. 20 and 25). Plaintiffs include four same-sex couples married in jurisdic- tions that provide for such marriages, including three female couples who are expecting children conceived via anonymous donors within the next few months and one male couple with an Ohio-born adopted son. All four couples are seeking to have the names of both parents recorded on their chil- dren's Ohio birth certificates. More specifically, Plaintiffs seek a declaration that Ohio's refusal to recognize valid same-sex marriages is unconstitu- tional, a permanent injunction prohibiting Defend- ants and their officers and agents from enforcing those bans or denying full faith and credit to de- crees of adoption duly obtained by same-sex couples in other jurisdictions, and the issuance of birth certificates for the Plaintiffs' children listing both same-sex parents. (Doc. 18 at 12). I. ESTABLISHED FACTS A. Marriage Law in Ohio FN3 *2 The general rule in the United States for in- terstate marriage recognition is the place of celeb- ration rule, or lex loci contractus, which provides that marriages valid where celebrated are valid everywhere. Historically, Ohio has recognized mar- riages that would be invalid if performed in Ohio, but are valid in the jurisdiction where celebrated. This is true even when such marriages clearly viol- ate Ohio law and are entered into outside of Ohio with the purpose of evading Ohio law with respect to marriage. Ohio departed from this tradition in 2004 to adopt its marriage recognition ban. Prior to 2004, the Ohio legislature had never passed a law denying recognition to a specific type of marriage solemnized outside of the state. Ohio Revised Code Section 3101 was amended in 2004 to prohibit same-sex marriages in the state and to prohibit recognition of same-sex marriages from other states. Sub-section (C) provides the fol- lowing: (1) Any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state. (2) Any marriage entered into by persons of the same sex in any other jurisdiction shall be con- sidered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state. (3) The recognition or extension by the state of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state. Any public act, record, or judicial proceeding of this state, as defined in section 9.82 of the Revised Code, that extends the specific statutory benefits of legal marriage to nonmarital relationships between per- sons of the same sex or different sexes is void ab initio ... (4) Any public act, record, or judicial proceeding of any other state, country, or other jurisdiction outside this state that extends the specific bene- fits of legal marriage to nonmarital relationships between persons of the same sex or different sexes shall be considered and treated in all re- spects as having no legal force or effect in this state and shall not be recognized by this state. Ohio Rev.Code Ann. 3101.01. Also adopted in 2004 was an amendment to the Ohio Constitution, which states: Only a union between one man and one woman Page 5 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (269 of 518) may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recog- nize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of mar- riage. Ohio Const. art. XV, 11. B. Plaintiffs 1. Henry/Rogers Family FN4 Plaintiffs Brittani Henry and Brittni Rogers met in 2008. They have been in a loving, committed same-sex relationship since that time. On January 17, 2014, they were validly married in the state of New York, which state legally recognizes their marriage. Having established a home together and enjoying the support of their families, the couple decided they wanted to have children. Henry be- came pregnant through artificial insemination (AI), and she is due to deliver a baby boy in June 2014. The sperm donor is anonymous. Without ac- tion by this Court, Defendants Jones and Himes will list only one of these Plaintiffs as their son's parent on his birth certificate. 2. Yorksmith Family FN5 *3 Nicole and Pam Yorksmith met and fell in love in 2006. They were married on October 14, 2008 in California, which state legally recognizes their marriage. The Yorksmith family already in- cludes a three-year-old son born in Cincinnati in 2010. He was conceived through AI using an an- onymous sperm donor. Nicole is their son's birth mother, but Pam was fully engaged in the AI pro- cess, pregnancy, and birth. They share the ongoing role as parents. However, only Nicole is listed on their son's birth certificate because Defendants will not list the names of both same-sex married parents on the birth certificates of their children conceived through AI. Failing to have both parents listed on their son's birth certificate has caused the Yorksmith Family great concern. They have created docu- ments attempting to ensure that Pam will be recog- nized with authority to approve medical care, deal with childcare workers and teachers, travel alone with their son, and otherwise address all the issues parents must resolve. Nicole and Pam allege that Defendants' denial of recognition of Pam's role as parent to their child is degrading and humiliating for the family. Now Nicole is pregnant with their second child. She expects to give birth in June in Cincin- nati. Nicole and Pam are married and will continue to be a married couple when their second child is born, but Defendants have taken the position that they are prohibited under Ohio law from recogniz- ing the California marriage and both married spouses on the birth certificate of the Yorksmiths' baby boy. Without action by this Court, Defendants Jones and Himes will list only one of these Plaintiffs as their son's parent on his birth certific- ate. 3. Noe/McCracken Family FN6 Plaintiffs Kelly Noe and Kelly McCracken have been in a loving, committed same-sex rela- tionship since 2009. From the beginning of their time together, they agreed that they would have children. They were married in 2011 in the state of Massachusetts, which legally recognizes their mar- riage. Noe became pregnant through AI using an anonymous sperm donor. She expects to deliver a baby in a Cincinnati hospital in June 2014. Mc- Cracken consented to and was a full participant in the decision to build their family using AI. Noe and McCracken are married now and will continue to be a married couple when their child is born, but De- fendants have taken the position that they are pro- hibited under Ohio law from recognizing the Mas- sachusetts marriage and the marital presumption of parentage that should apply to this family for pur- poses of naming both parents on the baby's birth certificate. Without action by this Court, Defend- ants Jones and Himes will list only one of these Page 6 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (270 of 518) Plaintiffs as a parent on the baby's birth certificate when the child is born. 4. Vitale/Talmas Family FN7 Plaintiffs Joseph J. Vitale and Robert Talmas met in 1997. They live in New York City, where they work as corporate executives. Vitale and Tal- mas married on September 20, 2011 in New York, which state legally recognizes their marriage. The couple commenced work with Plaintiff Adoption S.T.A.R. to start a family through adoption. Adop- ted Child Doe was born in Ohio in 2013 and cus- tody was transferred to Plaintiff Adoption S.T.A.R. shortly after birth. Vitale and Talmas immediately assumed physical custody and welcomed their son into their home. On January 17, 2014, an Order of Adoption of Adopted Child Doe was duly issued by the Surrogate's Court of the State of New York, County of New York, naming both Vitale and Tal- mas as full legal parents of Adopted Child Doe. *4 Plaintiffs are applying to the Ohio Depart- ment of Health, Office of Vital Statistics, for an amended birth certificate listing Adopted Child Doe's adoptive name and naming Vitale and Talmas as his adoptive parents. Based on the experience of Plaintiff Adoption S.T.A.R. with other clients and their direct communications with Defendant Himes's staff at the Ohio Department of Health, Adopted Child Doe will be denied a birth certificate that lists both men as parents. On the other hand, heterosexual couples married in New York who se- cure an order of adoption from a New York court regarding a child born in Ohio have the child's ad- optive name placed on his or her birth certificate along with the names of both spouses as the parents of the adoptive child as a matter of course. Without action by this Court, Defendant Himes will allow only one of these Plaintiffs to be listed as the parent on the birth certificate of Adopted Child Doe. Vitale and Talmas object to being forced to choose which one of them to be recognized as their son's parent and to allowing this vitally important document to misrepresent the status of their family. They do not wish to expose their son to the life- long risks and harms they allege are attendant to having only one of his parents listed on his birth certificate. 5. Adoption S.T.A.R. FN8 Plaintiffs allege that prior to Governor Kasich, Attorney General DeWine, and prior-Defendant Wymyslo taking office in January, 2011, the Ohio Department of Health provided same-sex married couples such as Plaintiffs Vitale and Talmas with birth certificates for their adopted children, consist- ent with those requested in the Complaint. (Doc. 1). Defendant Himes has changed that practice, and now denies married same-sex couples with out- of-state adoption decrees amended birth certificates for their Ohio-born children naming both adoptive parents. (See Docs. 46, 47, and 48). As a result of Ohio's practice of not amending birth certificates for the adopted children of married same-sex parents, Plaintiff Adoption S.T.A.R. al- leges it has been forced to change its placement agreements to inform potential same-sex adoptive parents that they will not be able to receive an ac- curate amended birth certificate for adopted chil- dren born in Ohio. Adoption S.T.A.R. alleges it has expended unbudgeted time and money to change its agreements and advise same-sex adoptive parents of Ohio's discriminatory practice. It alleges it has devoted extra time and money to cases like that of Plaintiffs Vitale and Talmas involving same-sex married couples who adopt children born in Ohio through court actions in other states. Adoption S.T.A.R. alleges that the process to seek an accur- ate birth certificate for Adopted Child Doeincluding participation in this lawsuitis ex- pected to be a protracted effort that will cause the expenditure of extra time and money. Adoption S.T.A.R. has served same-sex mar- ried couples in previous adoption cases and is cur- rently serving other same-sex married couples in various stages of the adoption process in other states for children born in Ohio. Adoption S.T.A.R. alleges it will serve additional same-sex married couples in this capacity in the future. Adoption Page 7 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (271 of 518) S.T.A.R. alleges that its clients' inability to secure amended birth certificates from Defendant Himes accurately listing both same-sex married persons as the legal parents of their adopted children imposes a significant burden on the agency's ability to provide adequate and equitable adoption services to its clients, results in incomplete adoptions and loss of revenue, and frustrates the very purpose of providing adoption services to its clients in the first place. II. STANDARD OF REVIEW *5 Plaintiffs go beyond the as-applied chal- lenge pursued in Obergefell and now seek a declar- ation that Ohio's marriage recognition ban is fa- cially unconstitutional, invalid, and unenforceable. (Doc. 18 at 15). In other words, Plaintiffs allege that no set of circumstances exists under which the [challenged marriage recognition ban] would be valid, and the ban should therefore be struck down in its entirety. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see also De Leon v. Perry, 975 F.Supp.2d 632 (W.D.Tex.2014) (declaring that Texas's ban on same-sex marriages and marriage recognition fails the constitutional facial challenge because ... De- fendants have failed to provide anyand the Court finds norational basis that banning same-sex mar- riage furthers a legitimate governmental interest). [1][2] A party is entitled to a permanent in- junction if it can establish that it suffered a consti- tutional violation and will suffer continuing irrepar- able injury for which there is no adequate remedy at law. Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir.2012); Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir.2006) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir.1998)); Obergefell, 962 F.Supp.2d at 977. It lies within the sound dis- cretion of the district court to grant or deny a mo- tion for permanent injunction. eBay Inc. v. MercEx- change, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006); Obergefell, 962 F.Supp.2d at 977 (citing Kallstrom, 136 F.3d at 1067); Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir.1994). The existence of another adequate remedy does not preclude a declaratory judgment that is other- wise appropriate. Fed.R.Civ.P. 57. In the Sixth Cir- cuit, [t]he two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. Savoie v. Martin, 673 F.3d 488, 49596 (6th Cir.2012) (quoting Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir.1984)); see also Obergefell, 962 F.Supp.2d at 977. Both circum- stances arise here. III. ANALYSIS This Court has already held in Obergefell that Ohio's refusal to recognize the out-of-state mar- riages of same-sex couples violates the Fourteenth Amendment due process right not to be deprived of one's already-existing legal marriage and its at- tendant benefits and protections. 962 F.Supp.2d at 978. In the birth certificate context, much like in the death certificate context, the marriage recogni- tion ban denies same-sex married couples the attendant benefits and protections associated with state marriage recognition and documentation. This Court further held in Obergefell that the marriage recognition ban violate[s] Plaintiffs' constitutional rights by denying them equal protection of the laws. Id. at 983. Finally, this Court declared the marriage recognition ban unconstitutional and un- enforceable in the death certificate context. *6 The Court's analysis in Obergefell controls here, and compels not only the conclusion that the marriage recognition ban is unenforceable in the birth certificate context, but that it is facially un- constitutional and unenforceable in any context whatsoever. A. Facial Challenge Despite the limited relief pursued by the Page 8 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (272 of 518) Plaintiffs in that case, this Court's conclusion in Obergefell clearly and intentionally expressed the facial invalidity of Ohio's marriage recognition ban, not only as applied to the Plaintiffs and the issue of death certificates, but in any application to any married same-sex couple. 962 F.Supp.2d at 997. Ohio's marriage recognition ban embodies an un- equivocal, purposeful, and explicitly discriminatory classification, singling out same-sex couples alone, for disrespect of their out-of-state marriages and denial of their fundamental liberties. This classific- ation, relegating lesbian and gay married couples to a second-class status in which only their marriages are deemed void in Ohio, is the core constitutional violation all of the Plaintiffs challenge. The United States Constitution neither knows nor tolerates classes among citizens. Romer v. Evans, 517 U.S. 620, 623, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (emphasis supplied). There can be no circumstance under which this discrimin- atory classification is constitutional, as it was inten- ded to, and on its face does, stigmatize and disad- vantage same-sex couples and their families, deny- ing only to them protected rights to recognition of their marriages and violating the guarantee of equal protection. Indeed, this Court already held as much in Obergefell, finding that Ohio enacted the mar- riage recognition bans with discriminatory animus and without a single legitimate justification. 962 F.Supp.2d at 995. As noted, following the Supreme Court's ruling in United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), a spate of fed- eral courts from across the nation has issued rulings similar to Obergefell, holding that a state's ban on the right of same-sex couples to marry or to have their out-of-state marriages recognized violates the constitutional due process and equal protection rights of these families. There is a growing national judicial consensus that state marriage laws treating heterosexual and same-sex couples differently viol- ate the Fourteenth Amendment, and it is this Court's responsibility to act decisively to protect rights secured by the United States Constitution. The Supreme Court explained in Citizens United v. Federal Election Commission that the distinction between facial and as-applied challenges is not so well defined that it has some automatic ef- fect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). The distinction between the two goes to the breadth of the remedy employed by the Court, not what must be pleaded in a com- plaint. Id. Even in a case explicitly framed only as an as-applied challenge (which this case is not), the Court has authority to facially invalidate a chal- lenged law. [O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly as-applied cases.' Id. at 331, 130 S.Ct. 876 (quoting Richard H. Fallon, Jr., AsApplied and Fa- cial Challenges and ThirdParty Standing, 113 HARV. L.REV.. 1321, 1339 (2000)). *7 It is therefore well within the Court's discre- tion to find the marriage ban facially unconstitu- tional and unenforceable in all circumstances on the record before it, and given the Court's extensive and comprehensive analysis in Obergefell pointing to the appropriateness of just such a conclusion, Defendants have been on notice of the likely facial unconstitutionality of the marriage ban since before this case was ever filed. B. Due Process Clause The Due Process Clause of the Fourteenth Amendment establishes that no state may deprive any person of life, liberty, or property, without due process of law. U.S. Const. amend. XIV, 1. The Due Process Clause protects vital personal rights essential to the orderly pursuit of happiness by free men, more commonly referred to as fundamental rights. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). There are a number of fundamental rights and/or liberty interests pro- tected by the Due Process clause that are implicated by the marriage recognition ban, including the right Page 9 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (273 of 518) to marry, the right to remain married, FN9 and the right to parental autonomy. 1. Right to Marry The freedom to marry has long been recog- nized as a fundamental right protected by the Due Process Clause. Loving, 388 U.S. at 12, 87 S.Ct. 1817 (1967). FN10 Some courts have not found that a right to same-sex marriage is implicated in the fundamental right to marry. See, e.g., Jackson v. Abercrombie, 884 F.Supp.2d 1065, 109498 (D.Haw.2012). FN11 However, neither the Sixth Circuit nor the Supreme Court have spoken on the issue, and this Court finds no reasonable basis on which to exclude gay men, lesbians, and others who wish to enter into same-sex marriages from this cul- turally foundational institution. [3][4] First, while states have a legitimate in- terest in regulating and promoting marriage, the fundamental right to marry belongs to the individu- al. Accordingly, the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (emphasis supplied); see also Loving, 388 U.S. at 12, 87 S.Ct. 1817 (Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State); Roberts v. U.S. Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ([T]he Constitution undoubtedly imposes con- straints on the State's power to control the selection of one's spouse ...). The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff's asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Court consistently de- scribes 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. See 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, 87 S.Ct. 1817; Turner, 482 U.S. at 9496, 107 S.Ct. 2254); Zablocki v. Redhail, 434 U.S. 374, 38386, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); accord In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 421 n. 33 (2008) (Turner did not characterize the constitutional right at issue as the right to inmate marriage ). *8 In Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the Supreme Court held that the right of consenting adults (including same-sex couples) to engage in private, sexual intimacy is protected by the Fourteenth Amendment's protection of liberty, notwithstanding the historical existence of sodomy laws and their use against gay people. For the same reasons, the fundamental right to marry is deeply rooted in this Nation's history and tradition for purposes of con- stitutional protection even though same-sex couples have not historically been allowed to exercise that right. [H]istory and tradition are the starting point but not in all cases the ending point of the substant- ive due process inquiry. Id. at 572, 123 S.Ct. 2472 (citation omitted). While courts use history and tra- dition to identify the interests that due process pro- tects, they do not carry forward historical limita- tions, 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. [5] Fundamental rights, once recognized, can- not be denied to particular groups on the ground that these groups have historically been denied those rights. In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 430 (quotation omitted). For ex- ample, when the Supreme Court held that anti- miscegenation laws violated the fundamental right to marry in Loving, it did so despite a long tradition of excluding interracial couples from marriage. Page 10 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (274 of 518) Planned Parenthood v. Casey, 505 U.S. 833, 84748, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ([I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt cor- rect in finding it to be an aspect of liberty protected against state interference by the substantive com- ponent of the Due Process Clause in Loving ...); Lawrence, 539 U.S. at 57778, 123 S.Ct. 2472 ([N]either history nor tradition could save a law prohibiting miscegenation from constitutional at- tack) (citation omitted). Indeed, the fact that a form of discrimination has been traditional is a reason to be more skeptical of its rationality and cause for courts to be especially vigilant. Cases subsequent to Loving have similarly con- firmed that the fundamental right to marry is available even to those who have not traditionally been eligible to exercise that right. See Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (states may not require indigent individuals to pay court fees in order to obtain a di- vorce, since doing so unduly burdened their funda- mental right to marry again); see also Zablocki, 434 U.S. at 38890, 98 S.Ct. 673 (state may not condi- tion ability to marry on fulfillment of existing child support obligations). Similarly, the right to marry as traditionally understood in this country did not extend to people in prison. See Virginia L. Hard- wick, Punishing the Innocent: Unconstitutional Re- strictions on Prison Marriage and Visitation, 60 N.Y.U. L.Rev. 275, 27779 (1985). Nevertheless, in Turner, 482 U.S. at 9597, 107 S.Ct. 2254, the Supreme Court held that a state cannot restrict a prisoner's ability to marry without sufficient justi- fication. When analyzing other fundamental rights and liberty interests in other contexts, the Supreme Court has consistently adhered to the principle that a fundamental right, once recognized, properly be- longs to everyone. FN12 *9 Consequently, based on the foregoing, the right to marriage is a fundamental right that is denied to same-sex couples in Ohio by the marriage recognition bans. 2. Right of Marriage Recognition Defendants also violate the married Plaintiffs' right to remain married by enforcing the marriage bans, which right this Court has already identified as a fundamental liberty interest appropriately pro- tected by the Due Process Clause of the United States Constitution. Obergefell, 962 F.Supp.2d at 978. When a state effectively terminates the mar- riage of a same-sex couple married in another juris- diction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. Id. at 979; see also Wind- sor, 133 S.Ct. at 2694 (When one jurisdiction re- fuses recognition of family relationships legally es- tablished in another, the differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify). As the Supreme Court has held: this differential treatment humiliates tens of thousands of children now be- ing raised by same-sex couples, which group in- cludes Adopted Child Doe and the children who will be born to the Henry/Rogers, Yorksmith, and Noe/McCracken families. Windsor, 133 S.Ct. at 2694. 3. Right to Parental Authority Finally, the marriage recognition bans also im- plicate the parenting rights of same-sex married couples with children. The Constitution accords parents significant rights in the care and control of their children. See Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). Parents enjoy unique rights to make crucial decisions for their children, including decisions about schooling, religion, medical care, and with whom the child may have contact. See, e.g., id. (medical decisions); Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (education and religion); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (education); Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (visitation with relatives). U.S. Supreme Court rulings, reflected in state laws, make clear that these parental rights are fundamental and may Page 11 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (275 of 518) be curtailed only under exceptional circumstances. See Troxel, 530 U.S. at 66, 120 S.Ct. 2054; Stanley v. Illinois, 405 U.S. 645, 65152, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); see also, e.g., In re D.A., 113 Ohio St.3d 88, 862 N.E.2d 829, 832 (2007) (citing Ohio cases on parents' paramount right to custody of their children). 4. Level of Scrutiny As a general matter, the Supreme Court applies strict scrutiny when a state law encroaches on a fundamental right, and thus such scrutiny is appro- priate in the context of the right to marry and the right to parental authority. See, e.g., Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). [6] The right to marriage recognition has not been expressly recognized as fundamental, however, and in the previously referenced set of cases establishing the highly-protected status of ex- isting marriage, family, and intimate relationships, the Supreme Court has often applied an intermedi- ate standard of review falling in between rational basis and strict scrutiny. See, e.g., Moore, 431 U.S. at 503, 97 S.Ct. 1932 (1977) (balancing the state in- terests advanced and the extent to which they are served by the challenged law against the burden on plaintiff's rights); Zablocki, 434 U.S. at 374, 98 S.Ct. 673 (same). As this Court held in Obergefell, the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding intoand in fact erasingPlaintiffs' already-established marital and family relations. 962 F.Supp.2d at 979. 5. Burden on Plaintiffs *10 When couplesincluding same-sex couplesenter into marriage, it generally involves long-term plans for how they will organize their finances, property, and family lives. 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. In re Estate of Lenherr, 455 Pa. 225, 314 A.2d 255, 258 (1974). Married couples moving from state to state have an expectation that their marriage and, more concretely, the property interests involved with itincluding bank accounts, inheritance rights, property, and other rights and benefits asso- ciated with marriagewill follow them. When a state effectively terminates the mar- riage of a same-sex couple married in another jur- isdiction by refusing to recognize the marriage, that state unlawfully intrudes into the realm of private marital, family, and intimate relations spe- cifically protected by the Supreme Court. After Lawrence, same-sex relationships fall squarely within this sphere, and when it comes to same-sex couples, a state may not seek to control a personal relationship, define the meaning of the relation- ship, or set its boundaries absent injury to a per- son or abuse of an institution the law protects. Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. For example, when a parent's legal relationship to his or her child is terminated by the state, it must present clear and convincing evidence supporting its action to overcome the burden of its loss, San- tosky v. Kramer, 455 U.S. 745, 753, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); and, here, a similar legal familial relationship is terminated by Ohio's marriage recognition ban. Moreover, the official statutory and constitutional establishment of same- sex couples married in other jurisdictions as a dis- favored and disadvantaged subset of relationships has a destabilizing and stigmatizing impact on those relationships. In striking down the statutory provi- sion that had denied gay and lesbian couples federal recognition of their otherwise valid marriages in Windsor, the Supreme Court observed: [The relevant statute] tells those couples, and all the world, that their otherwise valid marriages are unworthy of ... recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation de- means the couple, whose moral and sexual choices the Constitution protects ... And it humi- liates tens of thousands of children now being Page 12 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (276 of 518) raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. 133 S.Ct. at 2694 (emphasis supplied). In the family law context, while opposite-sex married couples can invoke step-parent adoption procedures or adopt children together, same-sex married couples cannot. Ohio courts allow an indi- vidual gay or lesbian person to adopt a child, but not a same-sex couple. Obergefell, 962 F.Supp.2d at 980. Same-sex couples are denied local and state tax benefits available to heterosexual married couples, denied access to entitlement programs (Medicaid, food stamps, welfare benefits, etc.) available to heterosexual married couples and their families, barred by hospital staff and/or relatives from their long-time partners' bedsides during seri- ous and final illnesses due to lack of legally-re- cognized relationship status, denied the remedy of loss of consortium when a spouse is seriously in- jured through the acts of another, denied the rem- edy of a wrongful death claim when a spouse is fatally injured through the wrongful acts of another, and evicted from their homes following a spouse's death because same-sex spouses are considered complete strangers to each other in the eyes of the law. Id. *11 Identification on the child's birth certific- ate is the basic currency by which parents can freely exercise these protected parental rights and responsibilities. It is also the only common govern- mentally-conferred, uniformly-recognized, readily- accepted record that establishes identity, parentage, and citizenship, and it is required in an array of leg- al contexts. Obtaining a birth certificate that ac- curately identifies both parents of a child born us- ing anonymous donor insemination or adopted by those parents is vitally important for multiple pur- poses. The birth certificate can be critical to regis- tering the child in school; FN13 determining the parents' (and child's) right to make medical de- cisions at critical moments; obtaining a social se- curity card for the child; FN14 obtaining social se- curity survivor benefits for the child in the event of a parent's death; establishing a legal parent-child re- lationship for inheritance purposes in the event of a parent's death; FN15 claiming the child as a de- pendent on the parent's insurance plan; claiming the child as a dependent for purposes of federal income taxes; and obtaining a passport for the child and traveling internationally. FN16 The inability to ob- tain an accurate birth certificate saddles the child with the life-long disability of a government iden- tity document that does not reflect the child's par- entage and burdens the ability of the child's par- ents to exercise their parental rights and respons- ibilities. The benefits of state-sanctioned marriage are extensive, and the injuries raised by Plaintiffs rep- resent just a portion of the harm suffered by same- sex married couples due to Ohio's refusal to recog- nize and give legal effect to their lawful unions. 6. Potential State Interests [7] Defendants advance a number of interests in support of Ohio's marriage recognition ban. (Doc. 20 at 3236). Defendants cite the decision to preserve uniformly the traditional definition of mar- riage without regard to contrary determinations by some other jurisdictions, avoiding judicial intru- sion upon a historically legislative function, assur[ing] that it is the will of the people of Ohio ... that controls, approaching social change with deliberation and due care, and [p]reserving the traditional definition of marriage, although they raise these interests in the context of a rational basis equal protection analysis. (Id.) Although strict scru- tiny is implicated by more than one fundamental right threatened by the marriage recognition ban, even in the intermediate scrutiny context, these vague, speculative, and/or unsubstantiated state in- terests rise nowhere near the level necessary to counterbalance the specific, quantifiable, particular- ized injuries detailed above suffered by same-sex couples when their existing legal marriages and the Page 13 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (277 of 518) attendant protections and benefits are denied to them by the state. In particular, the Court notes that given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defend- ants' repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious. *12 [8] The stated interest in preserving the traditional definition of marriage is not a legitim- ate justification for Ohio's arbitrary discrimination against gays based solely on their sexual orienta- tion. As federal judge John G. Heyburn II elo- quently explained in invalidating Kentucky's simil- ar marriage recognition ban: Many Kentuckians believe in traditional mar- riage. Many believe what their ministers and scriptures tell them: that a marriage is a sacra- ment instituted between God and a man and a woman for society's benefit. They may be con- fusedeven angrywhen a decision such as this one seems to call into question that view. These concerns are understandable and deserve an an- swer. Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It can- not impose a traditional or faith-based limitation upon a public right without a sufficient justifica- tion for it. Assigning a religious or traditional ra- tionale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons. The beauty of our Constitution is that is accom- modates our individual faith's definition of mar- riage while preventing the government from un- lawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of reli- gion and freedom from it. Bourke v. Beshear, F.Supp.2d , , 2014 WL 556729, at *10 (W.D.Ky. Feb. 12, 2014) (emphasis supplied) (declaring Kentucky's anti- recognition provisions unconstitutional on equal protection grounds). [9] Defendants argue that Windsor stressed that regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States. 133 S.Ct. at 2692. However, as this Court emphasized in Obergefell, this state regula- tion of marriage is subject to constitutional guar- antees and the fact that each state has the exclus- ive power to create marriages within its territory does not logically lead to the conclusion that states can nullify already-established marriages absent due process of law. 962 F.Supp.2d at 981. Quintessentially, as the Supreme Court has held, marriage confers a dignity and status of im- mense import. Windsor, 133 S.Ct. at 2692. When a state uses its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhance[s] the re- cognition, dignity, and protection of the class in their own community. Id. Here, based on the re- cord, Defendants have again failed to provide evid- ence of any state interest compelling enough to counteract the harm Plaintiffs suffer when they lose this immensely important dignity, status, recogni- tion, and protection, as such a state interest does not exist. *13 Accordingly, Ohio's refusal to recognize same-sex marriages performed in other jurisdictions violates the substantive due process rights of the parties to those marriages because it deprives them of their rights to marry, to remain married, and to effectively parent their children, absent a sufficient articulated state interest for doing so. C. Equal Protection Clause Page 14 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (278 of 518) This Court's analysis in Obergefell also com- pels the conclusion that Defendants violate Plaintiffs' right to equal protection by denying re- cognition to their marriages and the protections for families attendant to marriage. In Obergefell, this Court noted Ohio's long history of respecting out- of-state marriages if valid in the place of celebra- tion, with only the marriages of same-sex couples singled out for differential treatment. 962 F.Supp.2d at 98384. Under Ohio law, if the Henry/Rogers, York- smith, and Noe/McCracken couples' marriages were accorded respect, both spouses in the couple would be entitled to recognition as the parents of their ex- pected children. As a matter of statute, Ohio re- spects the parental status of the non-biologically re- lated parent whose spouse uses AI to conceive a child born to the married couple. See Ohio Rev.Code 3111.95 (providing that if a married woman uses non-spousal artificial insemination to which her spouse consented, the spouse shall be treated in law and regarded as the parent of the child, and the sperm donor shall have no parental rights); see also Ohio Rev.Code 3111.03 (providing that a child born to a married couple is presumed the child of the birth mother's spouse). An Ohio birth certificate is a legal document, not a medical record. Birth certificates for newborn babies are generated by Defendants through use of the Integrated Perinatal Health Information System (IPHIS) with information collected at birth facil- ities. FN17 Informants are advised that [t]he birth certificate is a document that will be used for im- portant purposes including proving your child's age, citizenship and parentage. The birth certificate will be used by your child throughout his/her life. FN18 The Ohio Department of Health routinely issues birth certificates naming as parents both spouses to opposite-sex married couples who use AI to conceive their children. FN19 However, De- fendants refuse to recognize these Plaintiffs' mar- riages and the parental presumptions that flow from them, and will refuse to issue birth certificates identifying both women in these couples as parents of their expected children. (Doc. 15 at 5962). Similarly, when an Ohio-born child is adopted by the decree of a court of another state, the Ohio Department of Health shall issue ... a new birth re- cord using the child's adoptive name and the names of and data concerning the adoptive parents. Ohio Rev.Code 3705.12(A)(1). However, the Depart- ment of Health refuses to comply with this require- ment based on Ohio Rev.Code 3107.18(A), which provides that [e]xcept when giving effect to such a decree would violate the public policy of this state, a court decree ... establishing the relationship by adoption, issued pursuant to due process of law by a court of any jurisdiction outside this state ... shall be recognized in this state. *14 Before Governor Kasich's administration and prior-Defendant Wymyslo's leadership of the Department of Health, Ohio recognized out-of-state adoption decrees of same-sex couples and supplied amended birth certificates identifying the adoptive parents. (See Docs. 46, 47, and 48). However, the current administration takes the position that is- suing birth certificates under such circumstances would violate public policy, i.e., Ohio's purported limitation on adoptions within the State to couples only if those couples are married. O.R.C. 3107.03(A). If the Vitale/Talmas spouses were an opposite-sex couple, Defendant Himes would re- cognize their marriage, their New York adoption decree, and their right to an accurate birth certi- ficate for Adopted Child Doe. 1. Heightened Scrutiny As the Court discussed in Obergefell, the Sixth Circuit has not reviewed controlling law regarding the appropriate level of scrutiny for reviewing clas- sifications based on sexual orientation, such as Ohio's marriage recognition ban, since Windsor. 962 F.Supp.2d at 986. The most recent Sixth Cir- cuit case to consider the issue, Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir.2012), re- jected heightened scrutiny by relying on Scar- brough v. Morgan Cnty. Bd. of Educ., 470 F.3d Page 15 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (279 of 518) 250, 261 (6th Cir.2006), which in turn relied on Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir.1997). As the Court concluded in Obergefell, however, Equality Foundation now rests on shaky ground and there are ample reasons to revisit the question of whether sexual orientation is a suspect classification, including the fact that Sixth Circuit precedent on this issue Equality Foundation among itis based on Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which was overruled by Lawrence, 539 U.S. at 558, 123 S.Ct. 2472. Bassett v. Snyder, 951 F.Supp.2d 939, 94546 (E.D.Mich.2013) (same-sex couples demonstrated a likelihood of success on the merits of their equal protection claim regarding a Michigan law prohibiting same-sex partners from receiving public employer benefits). FN20 The Su- preme Court, in overruling Bowers, emphatically declared that it was not correct when it was de- cided and is not correct today. Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. [10] As a result, this Court held in Obergefell that lower courts without controlling post- Lawrence precedent on the issue should now apply the criteria mandated by the Supreme Court to de- termine whether sexual orientation classifications should receive heightened scrutiny. 962 F.Supp.2d at 987. The Court then analyzed the four factors that, to varying degrees, may be considered to de- termine whether classifications qualify as suspect or quasi-suspect: whether the class (1) has faced historical discrimination, (2) has a defining charac- teristic that bears no relation to ability to contribute to society, (3) has immutable characteristics, and (4) is politically powerless. Id. at 98791. The Court concluded that [s]exual orientation discrim- ination accordingly fulfills all the criteria the Su- preme Court has identified, thus Defendants must justify Ohio's failure to recognize same-sex mar- riages in accordance with a heightened scrutiny analysis, and finally that Defendants utterly failed to do so. Id. at 991. Subsequent to Oberge- fell, the Ninth Circuit similarly held that Windsor requires heightened scrutiny for classifications based on sexual orientation. SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir.2014) (we are required by Windsor to ap- ply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection ... Thus, there can no longer be any question that gays and lesbians are no longer a group or class of individuals normally subject to rational basis' re- view. ) (citation omitted). The Court's entire Obergefell analysis applies and controls here, and classifications based on sexual orientation must pass muster under heightened scrutiny to survive constitutional challenge. *15 [11] Here, Defendants' discriminatory conduct most directly affects the children of same- sex couples, subjecting these children to harms spared the children of opposite-sex married par- ents. Ohio refuses to give legal recognition to both parents of these children, based on the State's dis- approval of their same-sex relationships. Defend- ants withhold accurate birth certificates from these children, burdening the children because their par- ents are not the opposite-sex married couples who receive the State's special stamp of approval. The Supreme Court has long held that disparate treat- ment of children based on disapproval of their parents' status or conduct violates the Equal Pro- tection Clause. See, e.g., Plyler v. Doe, 457 U.S. 202, 220, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (striking down statute prohibiting undocumented immigrant children from attending public schools because it imposes its discriminatory burden on the basis of a legal characteristic over which the children can have little control). FN21 Such dis- crimination also triggers heightened scrutiny. See, e.g., Pickett v. Brown, 462 U.S. 1, 8, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983). The children in Plaintiffs' and other same-sex married couples' families cannot be denied the right to two legal parents, reflected on their birth certific- ates and given legal respect, without a sufficient justification. No such justification exists. Page 16 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (280 of 518) 2. Rational Basis As the Court further held in Obergefell, even if no heightened level of scrutiny is applied to Ohio's marriage recognition bans, they still fail to pass constitutional muster. 962 F.Supp.2d at 991. The Court noted that [e]ven in the ordinary equal pro- tection case calling for the most deferential of standards, [the Court] insist[s] on knowing the rela- tion between the classification adopted and the ob- ject to be attained, that some objectives ... are not legitimate state interests, and, even when a law is justified by an ostensibly legitimate purpose, that [t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Romer, 517 U.S. at 632, 116 S.Ct. 1620; City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 44647, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). At the most basic level, by requiring that clas- sifications be justified by an independent and le- gitimate purpose, the Equal Protection Clause prohibits classifications from being drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633, 116 S.Ct. 1620 (emphasis supplied); see also Windsor, 133 S.Ct. at 2693; City of Cleburne, Tex., 473 U.S. at 450, 105 S.Ct. 3249; U.S. Dep't of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). This Court concluded by not- ing that in Bassett, 951 F.Supp.2d at 96871, the court held that same-sex couples demonstrated a likelihood of success on the merits of their equal protection claim regarding a Michigan law prohibit- ing same-sex partners from receiving public em- ployee benefits where [t]he historical background and legislative history of the Act demonstrate that it was motivated by animus against gay men and les- bians. The Court further determined that a review of the historical background and legislative history of the laws at issue and the evidentiary record es- tablished conclusively that the requested relief must also be granted to Plaintiffs on the basis of the Equal Protection Clause. Obergefell, 962 F.Supp.2d at 993. *16 Again, the Court's prior analysis controls, and Ohio's marriage recognition bans also fail ra- tional basis review. 3. Potential State Interests This Court has already considered and rejec- ted as illegitimate and irrational any purported State interests justifying the marriage recognition bans. Obergefell, 962 F.Supp.2d at 99395. Based on this controlling analysis, the government cer- tainly cannot meet its burden under heightened scrutiny to demonstrate that the marriage recogni- tion ban is necessary to further important State in- terests. All advanced State interests are as inad- equate now as they were several months ago to jus- tify the discrimination caused by the marriage re- cognition ban and the ban's particularly harmful im- pact on Ohio-born children. Of particular relevance to this case, in Oberge- fell this Court analyzed and roundly rejected any claimed government justifications based on a pref- erence for procreation or childrearing by hetero- sexual couples. 962 F.Supp.2d at 994. This Court further concluded that the overwhelming scientific consensus, based on decades of peerreviewed sci- entific research, shows unequivocally that chil- dren raised by same-sex couples are just as well adjusted as those raised by heterosexual couples. Id. at n. 20. In fact, the U.S. Supreme Court in Windsor (and more recently, numerous lower courts around the nation) similarly rejected a purported government interest in establishing a preference for or encouraging parenting by heterosexual couples as a justification for denying marital rights to same- sex couples and their families. The Supreme Court was offered the same false conjectures about child welfare this Court rejected in Obergefell, and the Supreme Court found those arguments so insub- stantial that it did not deign to acknowledge them. Instead, the Supreme Court concluded: DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, Page 17 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (281 of 518) including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate pur- pose overcomes the purpose and effect to dispar- age and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protec- tion and treating those persons as living in mar- riages less respected than others [the federal gov- ernment's non-recognition of marriages is uncon- stitutional]. Windsor, 133 S.Ct. at 2696 (emphasis sup- plied). All of the federal trial court decisions since Windsor have included similar conclusions on this issue, including that child welfare concerns weigh exclusively in favor of recognizing the marital rights of same-sex couples. FN22 In sum, under Supreme Court jurisprudence, and as confirmed in numerous recent trial court de- cisions, states do not have any governmental in- terest sufficient to justify their refusal to recognize lawful out-of-state marriages between same-sex couples. FN23 D. Full Faith and Credit *17 Because this Court has found that Ohio's marriage recognition bans are constitutionally in- valid on their face and unenforceable, Defendants no longer have a basis on which to argue that re- cognizing same-sex marriages on out-of-state adop- tion decrees violates Ohio public policy, and thus it is unnecessary to reach Plaintiffs' arguments based on the Full Faith and Credit Clause. However, the Court determines that, as expressed infra in endnote i, Plaintiffs have also demonstrated a compelling basis on which to find, and the Court does so find, that Plaintiffs Vitale and Talmas have a right to full faith and credit for their New York adoption decree here in Ohio. FN24 E. Irreparable Harm [12] Finally, Plaintiffs have easily met their burden to demonstrate they are suffering irreparable harm from Defendants' violation of their rights to due process, equal protection, and full faith and credit for their adoption decrees. Birth certificates are vitally important documents. As outlined above, Ohio's refusal to recognize Plaintiffs' and other same-sex couples' valid marriages imposes numer- ous indignities, legal disabilities, and psychological harms. Further, the State violates Plaintiffs' and other same-sex couples' fundamental constitutional rights to marry, to remain married, and to function as a family. Constitutional violations are routinely recog- nized as causing irreparable harm unless they are promptly remedied. Obergefell, 962 F.Supp.2d at 996; see also Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (loss of constitu- tional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury); Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (violation of the right to travel interstate constitutes irreparable injury). Without a permanent injunction and declaratory re- lief, the affected same-sex couples and their chil- dren would have to continue to navigate life without the birth certificates that pave the way through numerous transactions, large and small. They would needlessly suffer harmful delays, bur- eaucratic complications, increased costs, embar- rassment, invasions of privacy, and disrespect. Same-sex couples' legal status as parents will be open to question, including in moments of crisis when time and energy cannot be spared to over- come the extra hurdles Ohio's discrimination erects. FN25 The marital status of the couples will like- wise be open to question, depriving these families of the far-reaching security, protections, and dignity that come with recognition of their marriages. Plaintiffs and other affected same-sex couples require injunctive and declaratory relief to lift the stigma imposed by Defendants' disrespect for their spousal and parental statuses. Imposition of these burdens on same-sex couples serves no legitimate public interest that could counteract the severe and irreparable harm imposed by the marriage recogni- Page 18 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (282 of 518) tion bans. Plaintiffs have therefore more than adequately demonstrated their entitlement to declaratory and injunctive relief. FN26 IV. CONCLUSION *18 Accordingly, based on the foregoing, Plaintiffs' Motion for Declaratory Judgment and Permanent Injunction (Doc. 18) is hereby GRAN- TED. Specifically: 1. The Court finds that those portions of Ohio Const. Art. XV, 11, Ohio Rev.Code 3101.01(C), and any other provisions of the Ohio Revised Code that may be relied on to deny legal recognition to the marriages of same-sex couples validly entered in other jurisdictions, violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out- of-state marriages recognized and accepted as legal in Ohio and the enjoy the rights, protec- tions, and benefits of marriage provided to het- erosexual married couples under Ohio law, are denied significant liberty interests and funda- mental rights without due process of law and in violation of their right to equal protection. 2. Defendants and their officers and agents are permanently enjoined from (a) enforcing the mar- riage recognition ban, (b) denying same-sex couples validly married in other jurisdictions all the rights, protections, and benefits of marriage provided under Ohio law, and (c) denying full faith and credit to decrees of adoption duly ob- tained by same-sex couples in other jurisdictions. The Court will separately issue an Order of Per- manent Injunction to this effect. 3. Defendants shall issue birth certificates to Plaintiffs for their children listing both same-sex parents. IT IS SO ORDERED. FN27 FN1. The Court's Order today does NOT require Ohio to authorize the performance of same-sex marriage in Ohio. Today's rul- ing merely requires Ohio to recognize val- id same-sex marriages lawfully performed in states which do authorize such mar- riages. FN2. See, e.g., Kitchen v. Herbert, 961 F.Supp.2d 1181, 1216 (D.Utah 2013) (permanently enjoining Utah anti- celebration provisions on due process and equal protection grounds); Obergefell, 962 F.Supp.2d at 99798 (permanently enjoin- ing as to plaintiffs enforcement of Ohio anti-recognition provisions on due process and equal protection grounds); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 129597 (N.D.Okla.2014) (permanently enjoining Oklahoma's anti- celebration provisions on equal protection grounds); Bourke v. Beshear, F.Supp.2d , , 2014 WL 556729, at *1 (W.D.Ky. Feb. 2, 2014) (declaring Kentucky's anti-recognition provisions unconstitutional on equal pro- tection grounds); Bostic v. Rainey, 970 F.Supp.2d 456, 48384 (E.D.Va.2014) (finding Virginia's anti-celebration and anti-recognition laws unconstitutional on due process and equal protection grounds, and preliminarily enjoining enforcement); Lee v. Orr, 2014 WL 683680 (N.D.Ill. Feb. 21, 2014) (declaring Illinois celebration ban unconstitutional on equal protection grounds); De Leon v. Perry, 975 F.Supp.2d 632, 63940, 66263 (W.D.Tex.2014) (preliminarily enjoining Texas anti- celebration and anti-recognition provisions on equal protection and due process grounds); Tanco v. Haslam, F.Supp.2d , , , 2014 WL 997525, at *6, *9 (M.D.Tenn. Mar. 14, 2014) (enjoining enforcement of Tennessee anti-recognition provisions on equal protection grounds); Page 19 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (283 of 518) DeBoer v. Snyder, 973 F.Supp.2d 757, 775 (E.D.Mich.2014) (permanently enjoining Michigan anti-celebration provisions on equal protection grounds); Baskin v. Bogan (S.D.Ind. April 10, 2014) (J. Young) (temporarily enjoining Indiana's marriage recognition ban). FN3. See Obergefell, 962 F.Supp.2d at 97475. FN4. See Doc. 42. FN5. See Doc. 43. FN6. See Doc. 44. FN7. See Doc. 45. FN8. See Doc. 46. FN9. The concept of the right to remain married as a liberty interest protected by the Due Process Clause is advanced by Professor Steve Sanders in his article The Constitutional Right to (Keep Your) SameSex Marriage, 110 MICH. L.REV. 1421 (2011). FN10. See also Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (The decision to marry is a funda- mental right); Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) ([T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition); Griswold v. Connecticut, 381 U.S. 479, 485486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (intrusions into the sacred precincts of marital bedrooms of- fend rights older than the Bill of Rights); id. at 495496, 85 S.Ct. 1678 (Goldberg, J., concurring) (the law in question disrupt[ed] the traditional relation of the familya relation as old and as funda- mental as our entire civilization); see gen- erally Washington v. Glucksberg, 521 U.S. 702, 727 n. 19, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (citing cases). FN11. See also Wilson v. Ake, 354 F.Supp.2d 1298, 130607 (M.D.Fla.2005) (No federal court has recognized that [due process] ... includes the right to marry a person of the same sex) (internal citation omitted); Conaway v. Deane, 401 Md. 219, 932 A.2d 571, 628 (Md.App.2007) ([V]irtually every court to have con- sidered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 9 (2006) (The right to marry is unquestionably a fundamental right ... The right to marry someone of the same sex, however, is not deeply rooted, it has not even been asserted until relatively recent times). FN12. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 31516, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (an individual involun- tarily committed to a custodial facility be- cause of a disability retained liberty in- terests including a right to freedom from bodily restraint, thus departing from a longstanding historical tradition in which people with serious disabilities were not viewed as enjoying such substantive due process rights and were routinely subjected to bodily restraints in institutions); Eisen- stadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (striking down a ban on distributing contraceptives to unmarried persons, building on a hold- ing in Griswold, 381 U.S. at 486, 85 S.Ct. 1678, that states could not prohibit the use of contraceptives by married persons); Lawrence, 539 U.S. at 56667, 123 S.Ct. Page 20 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (284 of 518) 2472 (lesbian and gay Americans could not be excluded from the existing fundamental right to sexual intimacy, even though his- torically they had often been prohibited from full enjoyment of that right). FN13. See Ohio Rev.Code Ann. 3313.672(A)(1) (birth certificate generally must be presented at time of initial entry into public or nonpublic school). FN14. See Social Security Administration, Social Security Numbers for Children, ht- tp://www.ssa.gov/pubs/EN050023.pdf # nameddest=adoptiveparents (last visited Feb. 26, 2014). FN15. See Sefcik v. Mouyos, 171 Ohio App.3d 14, 869 N.E.2d 105, 108 (2007) (noting that a child's birth certificate is prima facie evidence of parentage for in- heritance purposes). FN16. See Minors under Age 16, U.S. Dept. of State, U.S. Passports & Int'l Travel, ht- tp://travel.state.gov/passport/get/minors/mi nors_834.html (last visited Feb. 26 2014); New U.S. Birth Certificate Requirement, U.S. Dept of State, U.S. Passports & Int'l Travel, http:// travel.state.gov/passport/passport_5401.ht ml (last visited Feb. 26, 2014) (certified birth certificates listing full names of ap- plicant's parents must be submitted with passport application as evidence of citizen- ship). FN17. A suggested worksheet is provided to the hospital or other birth facility by the Ohio Department of Health for use by the birth mother or other informant. A copy of the worksheet can be found at Ohio De- partment of Health, ht- tp://vitalsupport.odh.ohio.gov/gd/gd.aspx? Page=3&TopicRelationID=5&Content=59 94 (last visited Feb. 28, 2014). The hospit- al or birth facility then enters the informa- tion gathered into the IPHIS. Two flow sheets describing the typical sequence of steps leading to a birth certificate can be found at Birth Facility EasyStep Guide For IPHIS, pages 45, Ohio Department of Health, http:// vitalsup- port.odh.ohio.gov/gd/gd.aspx? Page=3&TopicRelationID=519&Content= 4597 (last visited Feb. 28, 2014). FN18. Mother's Worksheet for Child's Birth, available at Ohio Department of Health, ht- tp://vitalsupport.odh.ohio.gov/gd/gd.aspx? Page=3&TopicRelationID=5&Content=59 94 (last visited February 28, 2014). FN19. See Ohio Rev.Code 3111.03(A)(1) ([a] man is presumed to be the natural father of a child, including when [t]he man and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separ- ation agreement); see also Ohio Rev.Code 3111.95(A) (If a married woman is the subject of a non-spousal artificial insemin- ation and if her husband consented to the artificial insemination, the husband shall be treated in law and regarded as the natur- al father of a child conceived as a result of the artificial insemination, and a child so conceived shall be treated in law and re- garded as the natural child of the hus- band.); Ohio Rev.Code 3705.08(B) (All birth certificates shall include a state- ment setting forth the names of the child's parents ...). FN20. See also Pedersen v. Office of Pers. Mgmt., 881 F.Supp.2d 294, 312 Page 21 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (285 of 518) (D.Conn.2012) (The Supreme Court's holding in Lawrence remov[ed] the pre- cedential underpinnings of the federal case law supporting the defendants' claim that gay persons are not a [suspect or] quasi- suspect class ) (citations omitted); Golin- ski, 824 F.Supp.2d at 984 ([T]he reason- ing in [prior circuit court decisions], that laws discriminating against gay men and lesbians are not entitled to heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot stand post- Lawrence ). FN21. See also Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976) (visiting condemnation upon the child in order to express society's dis- approval of the parents' liaisons is illogic- al and unjust ); Weber v. Aetna Cas. Sur. Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) (imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal bur- dens should bear some relationship to indi- vidual responsibility or wrongdoing); Walton v. Hammons, 192 F.3d 590, 599 (6th Cir.1999) (holding state could not withhold children's food stamp support based on their parents' non-cooperation in establishing paternity of their children). FN22. See, e.g., De Leon, 975 F.Supp.2d 632 (declaring unconstitutional Texas bans on same-sex marriage and out-of-state marriage recognition, and rejecting as irra- tional purported childrearing and procre- ation justifications); Bostic, 970 F.Supp.2d at 478 (declaring unconstitutional Virgin- ia's marriage ban, which has the effect of needlessly stigmatizing and humiliating children who are being raised by same- sex couples and betrays rather than serves an interest in child welfare); Bourke, F.Supp.2d at , 2014 WL 556729 at *8 (rejecting purported govern- ment interest in withholding marriage re- cognition to advance procreation and chil- drearing goals, and holding Kentucky's marriage recognition ban, similar to Ohio's, unconstitutional); Bishop, 962 F.Supp.2d at 129096 (rejecting purported government interests in responsible procre- ation and childrearing as justifications for Oklahoma's same-sex marriage ban, which was held unconstitutional); Kitchen, 961 F.Supp.2d at 121114 (declaring Utah's marriage ban unconstitutional and finding that same-sex couples' children are also worthy of the State's protection, yet the marriage ban harms them for the same reasons that the Supreme Court found that DOMA harmed the children of same-sex couples); Griego v. Oliver, N.M. , 316 P.3d 865, 872 (2013) (rejecting responsible procreation and childrearing rationales to justify New Mexico's mar- riage ban, and declaring ban in violation of state constitution). FN23. Again, the Court's Order today does NOT require Ohio to authorize the per- formance of same-sex marriage in Ohio. Today's ruling merely requires Ohio to re- cognize valid same-sex marriages lawfully performed in states which authorize such marriages. FN24. Article IV, 1 of the U.S. Constitu- tion provides that Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. In incorporating this clause into our Constitution, the Framers foresaw that there would be a perpetual change and interchange of citizens between the several states. McElmoyle, for Use of Bailey v. Cohen, 38 U.S. 312, 315, 13 Pet. 312, 10 L.Ed. 177 (1839). The Supreme Court has explained that the Page 22 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (286 of 518) animating purpose of the full faith and credit command is: to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin. Baker v. Gen. Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) (quoting Milwaukee Cnty. v. M.E., White Co., 296 U.S. 268, 277, 56 S.Ct. 229, 80 L.Ed. 220 (1935)). In the context of judgments, the full faith and credit obligation is exacting, giving nationwide force to a final judgment rendered in a state by a court of compet- ent jurisdiction. Baker, 522 U.S. at 233, 118 S.Ct. 657. Proper full faith and cred- it analysis distinguishes between public acts, which may be subject to public policy exceptions to full faith and credit, and judicial proceedings, which de- cidedly are not subject to any public policy exception to the mandate of full faith and credit See id. at 232, 118 S.Ct. 657 (Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments); Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 437, 64 S.Ct. 208, 88 L.Ed. 149 (1943) (The full faith and credit clause and the Act of Congress imple- menting it have, for most purposes, placed a judgment on a different footing from a statute of one state, judicial re- cognition of which is sought in anoth- er). The Supreme Court has thus rejected any notion that a state may disregard the full faith and credit obligation simply be- cause the state finds the policy behind the out-of-state judgment contrary to is own public policies. According to the Court, our decisions support no roving public policy exception to the full faith and credit due judgments. Baker, 522 U.S. at 233, 118 S.Ct. 657; see also Es- tin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948) (Full Faith and Credit Clause ordered submission ... even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, deman- ded it); Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (requiring North Carolina to re- cognize change in marital status effected by Nevada divorce decree contrary to laws of North Carolina). Consistent with the guarantee of full faith and credit, Defendant Himes's De- partment of Health is mandated under a provision of the Vital Statistics section of the Ohio Code to issue an amended birth certificate upon receipt of an adop- tion decree issued by the court of anoth- er state. Pursuant to Ohio Revised Code 3705.12(A) and (B), upon receipt of a decree of adoption of an Ohio-born child, issued with due process by the court of another state, the department of health shall issue, unless otherwise re- quested by the adoptive parents, a new birth record using the child's adopted name and the names of and data con- cerning the adoptive parents.... This statute does not leave discretion in De- fendant Himes's hands to reject duly is- sued out-of-state adoption decrees based on whether the adoption could have been obtained under Ohio law. Page 23 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (287 of 518) Indeed, as already discussed, before the tenure of prior-Defendant Wymyslo, Ohio issued amended birth certificates based on the out-of-state adoption de- crees of same-sex parents, notwithstand- ing Ohio's purported policy against ad- options by unmarried couples within the State. Only recently has the Department of Health taken the position that Ohio Revised Code. 3107.18, a separate pro- vision of the Adoption section of the Code, frees it of its obligation to issue a corrected birth certificate upon receipt of another state's duly issued judgment of adoption decreeing a same-sex couple as adoptive parents. (Doc. 46 at 45). Ac- cording to Defendant Himes, that provi- sion requires the Department of Health to refuse recognition to out-of-state ad- option decrees of same-sex parents, whose marriages are disrespected under Ohio law, because giving effect to such a decree would violate the public policy of this state. Ohio Revised Code 3107.18. This backward evolution in Ohio, from granting accurate birth certificates to ad- optive same-sex parents and their chil- dren, to the current administration's re- fusal to do so, is yet another manifesta- tion of the irrational animus motivating Defendants' discriminatory treatment of lesbian and gay families. The application of section 3107.18's public policy ex- ception to the adoption decree of another state is contrary to Ohio's consistent re- cognition of the duly-issued adoption de- crees of state courts of competent juris- diction nationwide. See, e.g., Matter of Bosworth, No. 86AP903, 1987 WL 14234, at *2 (Ohio Ct.App. 10th Dist. July 16, 1987) (recognizing Florida ad- option decree because, if due process was followed by another state's court in issuing an adoption decree, an Ohio court is mandated to give full faith and credit to that state's decree); Matter of Swanson, No. 90CA23, 1991 WL 76457 (Ohio Ct.App. 5th Dist. May 3, 1991) (recognizing New York adoption decree over objection of Ohio biological parents). Defendant Himes impermiss- ibly injects a roving public policy ex- ception to the full faith and credit due judgments, precisely what the Supreme Court has made clear the Full Faith and Credit Clause prohibits. The duty to effectuate this command has commonly fallen on state courts in ac- tions to enforce judgments obtained in out-of-state litigation, which is why many Supreme Court cases identify state courts as violators of the state's full faith and credit obligations. See Adar v. Smith, 639 F.3d 146, 171 (5th Cir.2011) (Weiner, J., dissenting) (citing Guinness PLC v. Ward, 955 F.2d 875, 890 (4th Cir.1992) ([U]nder the common law, the procedure to enforce the judgment of one jurisdiction in another required the filing of a new suit in the second juris- diction to enforce the judgment of the first)). However, this historical fact does not dictate that the command is dir- ected only to state courts. For example, now all but two or three of the fifty states have enacted some version of the Revised Uniform Enforcement of For- eign Judgments Act, which authorizes nonjudicial officers to register out- of-state judgments, thereby entrusting to them their states' obligations under the [Full Faith and Credit] Clause. Adar, 639 F.3d at 171 (Weiner, J., dissenting) (citation omitted). Ohio's vital statistics statutes likewise transfer to state execut- ive officials the responsibility to receive and recognize out-of-state judgments of Page 24 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (288 of 518) adoption and to issue amended Ohio birth certificates based on those judg- ments. See Ohio Revised Code 3705.12(A) and (B). The Fifth Circuit stands alone in holding that federal claims to enforce rights con- ferred by the Full Faith and Credit Clause are unavailable under 1983 against nonjudicial state officials. Adar, 639 F.3d at 153. Given that 1983 cre- ates a remedy for those denied rights, privileges, or immunities secured by the Constitution and laws, 42 U.S.C. 1983, and that the Supreme Court has re- peatedly held that 1983 is a remedial statute that must be applied expansively to assure the protection of constitutional rights (see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 70001, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ( 1983 is to be broadly construed, against all forms of official violation[s] of federally protec- ted rights); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) ( 1983's coverage is to be broadly construed); Wayne v. Vill. of Sebring, 36 F.3d 517, 528 (6th Cir.1994) (same)), other circuits have unremark- ably entertained such claims. See Rosin v. Monken, 599 F.3d 574, 575 (7th Cir.2010) (adjudicating full faith and credit claim against state actors on the merits in 1983 action); United Farm Workers v. Ariz. Agric. Emp't Relations Bd., 669 F.2d 1249, 1257 (9th Cir.1982) (same); Lamb Enters., Inc. v. Kiroff, 549 F.2d 1052, 1059 (6th Cir.1977) (propriety of 1983 claim in federal court to enforce full faith and credit ob- ligation against state judge not ques- tioned, but abstention deemed warran- ted). The Supreme Court has employed a three-part test, articulated in Golden State Transit Corp., 493 U.S. at 106, 110 S.Ct. 444, to determine whether a consti- tutional provision creates a right action- able under 1983: whether the provision 1) creates obligations binding on the governmental unit, 2) that are suffi- ciently concrete and specific as to be ju- dicially enforced, and 3) were intended to benefit the putative plaintiff. Den- nis v. Higgins, 498 U.S. 439, 449, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991) (internal quotations and citations omit- ted). The Full Faith and Credit Clause explicitly creates obligations binding on the states, is concrete and judicially re- cognizable, and was intended to protect the rights of individuals to require re- spect across state lines for judgments in their favor. See Thomas v. Wash. Gas Light Co., 448 U.S. 261, 278 n. 23, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980) ([T]he purpose of [the Clause] was to preserve rights acquired or confirmed under the ... judicial proceedings of one state by requiring recognition of their validity in other states ....) (quoting Pac. Emp'rs Ins. Co. v. Indus. Accident Comm'n of Cal., 306 U.S. 493, 501, 59 S.Ct. 629, 83 L.Ed. 940 (1939)); Magno- lia Petroleum Co., 320 U.S. at 439, 64 S.Ct. 208 (referring to the Clause as pre- serving judicially established rights); see also Adar, 639 F.3d at 176 (Weiner, J., dissenting) (For all the same reasons advanced by the Dennis Court in recog- nizing the private federal right created by the Commerce Clause ... the [Full Faith and Credit] Clause indisputably does confer a constitutional right for which 1983 provides an appropriate remedy). In Finstuen v. Crutcher, 496 F.3d 1139 Page 25 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (289 of 518) (10th Cir.2007), a 1983 action, the Tenth Circuit held that Oklahoma was required to issue an amended birth certi- ficate listing as parents both members of a California same-sex couple that had legally adopted a child born in Ok- lahoma, notwithstanding Oklahoma's prohibition against such adoptions with- in the state. Id. at 114142. Oklahoma, like Ohio, had a statute providing for is- suance of amended birth certificates for children adopted in other states' courts. The Tenth Circuit ruled that the Full Faith and Credit Clause required Ok- lahoma to apply its own law to enforce [those] adoption order[s] in an even-handed manner. Id. at 1154 (citing Baker, 522 U.S. at 235, 118 S.Ct. 657). The Tenth Circuit concluded: We hold today that final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause. Id. at 1156. Oklahoma's refusal to recognize final adoption orders of other states that permit adoption by same-sex couples was therefore unconstitutional. Id. The principles and precedent outlined above provide a compelling basis to con- clude that the Full Faith and Credit Clause also requires full recognition of Plaintiffs Vitale's and Talmas's New York adoption decree, and this Court so holds. (As in Obergefell, this Court again ac- knowledges the continuing pendency of Section 2 of the discredited federal De- fense of Marriage Act (DOMA), which was not before the Supreme Court in Windsor, and wherein Congress has sought to invoke its power under the Full Faith and Credit Clause to establish that [n]o State ... shall be required to give effect to any public act, record, or judi- cial proceeding of any other State ... re- specting a relationship between persons of the same sex that is treated as a mar- riage under the laws of such other State, 28 U.S.C. 1738C. However, as in Obergefell, although Section 2 of DOMA is not specifically before the Court, the implications of today's ruling speak for themselves.) FN25. For example, families can be barred in hospitals from their loved ones' bedsides due to a lack of legally-recognized rela- tionship status. (Id. Doc. 173 at 23). And, although Ohio same-sex couples may obtain co-custody agreements for their children, such an agreement does not ... create the full rights and responsibilities of a legally recognized child-parent relation- ship. (Id. at 19). Moreover, inheritance is governed in part by parentage (Id. at 21, 24, 30), and children are entitled to bring wrongful death actions (Doc. 177 at 37). Indeed, [s]ame-sex married couples and their children live in an Ohio that auto- matically denies most state and federal rights, benefits and privileges to them. ( Id. at 103). FN26. However, the Court agrees with De- fendants that Plaintiff Adoption S.T.A.R. lacks standing to pursue its claims. Rather than relying on its own rights, Adoption S.T.A.R. purports to bring this action on behalf of its clients who seek to complete adoptions involving Ohio-born children and seeks relief for any ... same-sex couples married in [other] jurisdiction ... who become clients of Plaintiff Adoption S.T.A.R.... (Doc. 1 at 17). To establish Article III standing, a plaintiff must show that an injury is concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a Page 26 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (290 of 518) favorable ruling. Clapper v. Amnesty In- tern. USA, U.S. , 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (internal quotations omitted). Adoption S.T.A.R. bears the burden of proving each element of standing in the same way as any other matter on which the plaintiff bears the bur- den of proof, i.e., with the manner and de- gree of evidence required at successive stages of the litigation. Lujan v. Defend- ers of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). [A] party generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (internal quotations omitted). If a party can demonstrate injury, however, that party may pursue the rights of others when it can establish that (1) the party asserting the right has a close relationship with the person who possesses the right and (2) there is a hindrance to the pos- sessor's ability to protect his own in- terests. Boland v. Holder, 682 F.3d 531, 537 (6th Cir.2012) (internal quota- tions omitted). The concept of third- party standing is typically disfavored. Kowalski, 543 U.S. at 130, 125 S.Ct. 564; see also Singleton v. Wulff, 428 U.S. 106, 11314, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (outlining reasons why [f]ederal courts must hesitate be- fore resolving a controversy, even one within their constitutional power to re- solve, on the basis of the rights of third persons not parties to the litigation). Here, Adoption S.T.A.R. fails to satisfy its burden of establishing standing be- cause it fails to satisfy the hindrance re- quirement. Adoption S.T.A.R. must demonstrate that its clients face some obstacle in litigating their rights them- selves. Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 641 F.3d 197, 209 (6th Cir.2011). In analyzing this question, the United States Supreme Court has gener- ally looked for daunting barriers or insurmountable procedural obstacles to support a finding of hindrance. See Miller v. Albright, 523 U.S. 420, 44950, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (O'Connor, J., concurring, Kennedy, J., joining) (A hindrance sig- nals that the rightholder did not simply decline to bring the claim on his own be- half, but could not in fact do so). Adop- tion S.T.A.R. has not shown that same- sex couples married in other jurisdic- tions are hindered from litigating their own rights, and the participation of the other Plaintiffs in this lawsuit demon- strates that such parties are capable of doing so. Moreover, because birth certi- ficates can be amended and reissued, there are no significant time restrictions on the ability of potential third parties to bring their own actions. Under these cir- cumstances, where the time constraints and logistical and emotional burdens that prevented injured third parties from vindicating their rights in Obergefelldo not exist, there is no basis for departing from the ordinary rule that one may not claim standing ... to vindicate the consti- tutional rights of some third party. Bar- rows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Consequently, the Court finds that Plaintiff Adoption S.T.A.R. lacks stand- ing to pursue its claims. The Court also notes, however, that given today's ruling, the question of Adoption S.T.A.R.'s standing is ultimately of no practical ef- fect. Page 27 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (291 of 518) Happy Adoption Day Words and Music by John McCulcheon 1992 John McCutcheon/Appalsongs (ASCAP) Oh who would have guessed, who could have seen Who could have possibly known All these roads we have traveled, the places we've been Would have finally taken us home. So here's to you, three cheers to you Let's shout it, Hip, hip horray! For out of a world so tattered and torn, You came to our house on that wonder- ful morn And all of a sudden this family was born Oh, happy Adoption Day! There are those who think families hap- pen by chance A mystery their whole life through But we had a voice and we had a choice We were working and waiting for you. So here's to you, three cheers to you Let's shout it, Hip, hip horray! For out of a world so tattered and torn, You came to our house on that wonder- ful morn And all of a sudden this family was born Oh, happy Adoption Day! No matter the time and no matter the age No matter how you came to be No matter the skin, we are all of us kin We are all of us one family. So here's to you, three cheers to you Let's shout it, Hip, hip horray! For out of a world so tattered and torn, You came to our house on that wonder- ful morn And all of a sudden this family was born Oh, happy Adoption Day! FN27. The Court STAYS enforcement of this Order and the Permanent Injunction until the parties have briefed whether or not this Court should fully stay its Orders until completion of appeal to the United States Court of Appeals for the Sixth Cir- cuit and the United States Supreme Court. The Court is inclined to stay its finding of facial unconstitutionality but not to stay the Orders as to the as-applied claims of the four couples who are Plaintiffs because they have demonstrated that a stay will harm them individually due to the immin- ent births of their children and other time- sensitive concerns. The Court inclines to- ward a finding that the issuance of correct birth certificates for Plaintiffs' children, due in June or earlier, should not be stayed. The Court is further inclined to conclude that the Defendants will not be harmed by compliance with the require- ments of the United States Constitution. Nevertheless, Plaintiffs shall file today their memorandum contra Defendants' oral motion to stay, and Defendants shall file a Page 28 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (292 of 518) reply memorandum before 3:00 p.m. to- morrow. The Court shall then rule expedi- tiously. S.D.Ohio,2014. Henry v. Himes --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) END OF DOCUMENT Page 29 --- F.Supp.2d ----, 2014 WL 1418395 (S.D.Ohio) (Cite as: 2014 WL 1418395 (S.D.Ohio)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (293 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (294 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (295 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (296 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (297 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (298 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (299 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (300 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (301 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (302 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (303 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (304 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (305 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (306 of 518) Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (307 of 518) Only the Westlaw citation is currently available. United States Court of Appeals, Tenth Circuit. Derek KITCHEN; Moudi Sbeity; Karen Archer; Kate Call; Laurie Wood; Kody Partridge, individu- ally, PlaintiffsAppellees, v. Gary R. HERBERT, in his official capacity as Gov- ernor of Utah; Sean Reyes, in his official capacity as Attorney General of Utah, Defend- antsAppellants, and Sherrie Swensen, in her official capacity as Clerk of Salt Lake County, Defendant. No. 134178. June 25, 2014. Background: Three gay and lesbian couples who either desired to be married in Utah or, having already married elsewhere, wished to have their marriage recognized in Utah, brought action against Utah's Governor, Attorneys General, and county clerk, seeking to challenge amendment to Utah's Constitution, as well as two statutes, that prohibited same-sex marriage as violative of same-sex couples' due process and equal protection rights un- der Fourteenth Amendment. The United States Dis- trict Court for the District of Utah, Robert J. Shelby , J., granted summary judgment for plaintiffs. The Governor and Attorney General appealed. Holdings: The Court of Appeals, Lucero, Circuit Judge, held that: (1) two same sex couples had standing to bring ac- tion against county clerk; (2) Governor and Attorney General had requisite nexus with challenged provisions to have standing to appeal; (3) challenge presented substantial federal question; (4) same-sex couples had fundamental right to marry under doctrine of substantive due process; (5) Utah's interest in fostering biological reproduc- tion within marriages did not justify prohibition against same-sex marriage; (6) Utah's interest in promoting childbearing and optimal childrearing did not justify prohibition against same-sex marriage; (7) Utah's interest in encouraging gendered parent- ing styles did not justify prohibition against same- sex marriage; and (8) concerns that some substantial degree of discord would follow state recognition of same-sex mar- riage were insufficient to justify prohibition against same-sex marriage. Affirmed. Kelly, Circuit Judge, filed opinion concurring in part and dissenting in part. West Headnotes [1] Constitutional Law 92 704 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(A) Persons Entitled to Raise Constitu- tional Questions; Standing 92VI(A)3 Particular Questions or Grounds of Attack in General 92k704 k. Family law; marriage. Most Cited Cases Two gay and lesbian couples had standing to bring action against a county clerk, challenging an amendment to Utah's Constitution, as well as two statutes, that prohibited same-sex marriage, after the couples were denied a marriage license by a county clerk; couples claimed financial injuries flowing from denial of marriage license, county clerks were responsible for issuing marriage li- censes and recording marriage certificates, and the couples' injuries would be cured by injunction pro- hibiting enforcement of the amendment and stat- utes. Wests U.C.A. Const. Art. 1 29; West's U.C.A. 3012(5), 3014.1, 3017(1), Page 1 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (308 of 518) 30112(1). [2] Federal Civil Procedure 170A 103.2 170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing in General 170Ak103.2 k. In general; injury or in- terest. Most Cited Cases Federal Civil Procedure 170A 103.3 170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing in General 170Ak103.3 k. Causation; redressabil- ity. Most Cited Cases To possess Article III standing, a plaintiff must establish: (1) that he or she has suffered an injury in fact; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely that the injury will be redressed by a favor- able decision. U.S.C.A. Const. Art. 3, 1 et seq. [3] Officers and Public Employees 283 119 283 Officers and Public Employees 283III Rights, Powers, Duties, and Liabilities 283k119 k. Actions by or against officers and employees. Most Cited Cases Plaintiffs suing public officials can satisfy the causation and redressability requirements of Article III standing by demonstrating a meaningful nexus between the defendant and the asserted injury. U.S.C.A. Const. Art. 3, 1 et seq. [4] Officers and Public Employees 283 119 283 Officers and Public Employees 283III Rights, Powers, Duties, and Liabilities 283k119 k. Actions by or against officers and employees. Most Cited Cases The causation element of Article III standing for claims asserted against public officials requires the named defendants to possess authority to en- force the complained-of provision. U.S.C.A. Const. Art. 3, 1 et seq. [5] Officers and Public Employees 283 119 283 Officers and Public Employees 283III Rights, Powers, Duties, and Liabilities 283k119 k. Actions by or against officers and employees. Most Cited Cases The redressability prong of Article III standing for claims asserted against public officials is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute. U.S.C.A. Const. Art. 3, 1 et seq. [6] Federal Courts 170B 2377 170B Federal Courts 170BV Suits Against States; Eleventh Amend- ment and Sovereign Immunity 170Bk2372 Exceptions to Immunity 170Bk2377 k. Suits for injunctive or other prospective or equitable relief; Ex parte Young doc- trine. Most Cited Cases Federal Courts 170B 2384 170B Federal Courts 170BV Suits Against States; Eleventh Amend- ment and Sovereign Immunity 170Bk2379 What Are Suits Against States; Entities and Individuals Entitled to Immunity 170Bk2384 k. Agencies, officers, and public employees. Most Cited Cases Under Ex parte Young, a state defendant sued in his official capacity must have some connection with the enforcement of a challenged provision; the officer need not have a special connection to the al- legedly unconstitutional statute, but need only have a particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty. [7] Federal Courts 170B 3255 170B Federal Courts 170BXVII Courts of Appeals Page 2 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (309 of 518) 170BXVII(B) Appellate Jurisdiction and Pro- cedure in General 170Bk3253 Persons Entitled to Seek Re- view or Assert Arguments; Parties; Standing 170Bk3255 k. Particular persons. Most Cited Cases Actual exercise of supervisory power by Utah's Governor and Attorney General and their authority to compel compliance from county clerks and other officials provided requisite nexus between officials and constitutional and statutory provisions that pro- hibited same-sex marriage, and thus officials had standing to appeal decision of District Court which found prohibition on issuing same-sex marriage li- censes unconstitutional, even after county clerk who refused to issue the licenses declined to appeal District Court's decision. Wests U.C.A. Const. Art. 1 29; West's U.C.A. 3012(5), 3014.1. [8] States 360 193 360 States 360VI Actions 360k193 k. Rights of action against state or state officers. Most Cited Cases For purposes of rule that plaintiffs suing public officials must satisfy the causation and redressabil- ity requirements of standing by demonstrating a meaningful nexus between the defendant and the asserted injury, a state official is a proper defendant for a challenge to a state law if he is responsible for general supervision of the administration by the local officials of the challenged provision, even if the state official is not specifically empowered to ensure compliance with the statute at issue, if the official clearly has assisted or currently assists in giving effect to the law. [9] Federal Courts 170B 3516 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(I) Dismissal, Withdrawal, or Abandonment 170Bk3516 k. Want of jurisdiction. Most Cited Cases In light of recent doctrinal developments, chal- lenge to Utah constitutional and statutory prohibi- tions of same-sex marriage, as violative of same- sex couples' due process and equal protection rights, presented substantial federal question, pre- cluding summary dismissal of appeal. U.S.C.A. Const.Amend. 14; West's U.C.A. Const. Art. 1, 29; West's U.C.A. 30-1-2, 30-1-4.1. [10] Courts 106 107 106 Courts 106II Establishment, Organization, and Proced- ure 106II(K) Opinions 106k107 k. Operation and effect in gener- al. Most Cited Cases Summary dismissals do not have the same pre- cedential value as an opinion of the Supreme Court after briefing and oral argument on the merits. [11] Courts 106 107 106 Courts 106II Establishment, Organization, and Proced- ure 106II(K) Opinions 106k107 k. Operation and effect in gener- al. Most Cited Cases Federal Courts 170B 3516 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(I) Dismissal, Withdrawal, or Abandonment 170Bk3516 k. Want of jurisdiction. Most Cited Cases Federal Courts 170B 3766 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(L) Determination and Disposition of Cause 170Bk3765 Affirmance 170Bk3766 k. In general. Most Cited Page 3 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (310 of 518) Cases Summary affirmances and dismissals for want of a substantial federal question without doubt re- ject the specific challenges presented in the state- ment of jurisdiction, and prevent lower courts from coming to opposite conclusions on the precise is- sues presented and necessarily decided by those ac- tions. [12] Federal Courts 170B 3616(1) 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(K) Scope and Extent of Review 170BXVII(K)2 Standard of Review 170Bk3612 Remedial Matters 170Bk3616 Injunction 170Bk3616(1) k. In general. Most Cited Cases The Court of Appeals reviews the decision to grant a permanent injunction for abuse of discre- tion. [13] Injunction 212 1032 212 Injunction 212I Injunctions in General; Permanent Injunc- tions in General 212I(B) Factors Considered in General 212k1032 k. Grounds in general; multiple factors. Most Cited Cases To obtain a permanent injunction, a plaintiff must show: (1) actual success on the merits; (2) ir- reparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. [14] Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-sex marriage. Most Cited Cases The right to marry, protected as a fundamental liberty under the doctrine of substantive due pro- cess, included the right of gay and lesbian couples to marry and to have their marriages recognized by the state, despite contention that marriage by defini- tion meant only a legal union between one man and one woman as husband and wife. U.S.C.A. Const.Amend. 14. [15] Constitutional Law 92 3873 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3868 Rights, Interests, Benefits, or Privileges Involved in General 92k3873 k. Liberties and liberty in- terests. Most Cited Cases All fundamental rights comprised within the term liberty are protected by the Federal Constitu- tion from invasion by the States. U.S.C.A. Const.Amend. 14. [16] Constitutional Law 92 3850 92 Constitutional Law 92XXVII Due Process 92XXVII(A) In General 92k3848 Relationship to Other Constitu- tional Provisions; Incorporation 92k3850 k. Bill of Rights in general. Most Cited Cases Constitutional Law 92 3894 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3892 Substantive Due Process in Gen- eral 92k3894 k. Rights and interests protec- Page 4 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (311 of 518) ted; fundamental rights. Most Cited Cases The doctrine of substantive due process ex- tends protections to fundamental rights in addition to the specific freedoms protected by the Bill of Rights. U.S.C.A. Const.Amend. 14. [17] Constitutional Law 92 3894 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3892 Substantive Due Process in Gen- eral 92k3894 k. Rights and interests protec- ted; fundamental rights. Most Cited Cases To qualify as fundamental right protected un- der the doctrine of substantive due process, a right must be objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. U.S.C.A. Const.Amend. 14. [18] Constitutional Law 92 4384 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4384 k. In general. Most Cited Cases The right to marry is a fundamental liberty, protected under doctrine of substantive due process. U.S.C.A. Const.Amend. 14. [19] Constitutional Law 92 3873 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3868 Rights, Interests, Benefits, or Privileges Involved in General 92k3873 k. Liberties and liberty in- terests. Most Cited Cases The liberty protected by the Fourteenth Amendment includes the freedom to marry, estab- lish a home, and bring up children. U.S.C.A. Const.Amend. 14. [20] Constitutional Law 92 4384 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4384 k. In general. Most Cited Cases The fundamental right to marry, protected un- der doctrine of substantive due process, necessarily includes right to remain married. U.S.C.A. Const.Amend. 14. [21] Constitutional Law 92 1073 92 Constitutional Law 92VII Constitutional Rights in General 92VII(B) Particular Constitutional Rights 92k1073 k. Fourteenth Amendment in general. Most Cited Cases Congress cannot authorize a state to violate the Fourteenth Amendment. U.S.C.A. Const.Amend. 14. [22] Constitutional Law 92 3901 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3901 k. Levels of scrutiny; strict or heightened scrutiny. Most Cited Cases The Due Process Clause forbids the govern- ment to infringe certain fundamental liberty in- terests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. U.S.C.A. Page 5 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (312 of 518) Const.Amend. 14. [23] Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases If a classification impinges upon the exercise of a fundamental right, the Equal Protection Clause requires the State to demonstrate that its classifica- tion has been precisely tailored to serve a compel- ling governmental interest. U.S.C.A. Const.Amend. 14. [24] Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases A provision subject to equal protection strict scrutiny cannot rest upon generalized assertion as to the classification's relevance to its goals. U.S.C.A. Const.Amend. 14. [25] Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases The purpose of the narrow tailoring require- ment of equal protection strict scrutiny review of a fundamental interest is to ensure that the means chosen fit the compelling goal so closely that there is little or no possibility that the motive for the clas- sification was illegitimate; only the most exact con- nection between justification and classification sur- vives. U.S.C.A. Const.Amend. 14. [26] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-sex marriage. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Even assuming that Utah's interest in fostering biological reproduction within marriages was com- pelling government interest, Utah's constitutional and statutory prohibitions against recognition of same-sex marriage were not narrowly tailored to promote that interest, and thus prohibitions violated same-sex couples' fundamental right to marry under Page 6 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (313 of 518) Due Process and Equal Protection clauses; the pro- hibitions did not differentiate between procreative and non-procreative couples, and permitted oppos- ite-sex couples to marry regardless of the pairing's procreative capacity or inclination to bear children. U.S.C.A. Const.Amend. 14; 1 U.S.C.A. 7; West's U.C.A. Const. Art. 1, 29; West's U.C.A. 30-1-2, 30-1-4.1. [27] Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases Constitutional Law 92 3894 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3892 Substantive Due Process in Gen- eral 92k3894 k. Rights and interests protec- ted; fundamental rights. Most Cited Cases State may not impinge upon exercise of funda- mental right, protected by substantive due process or equal protection, as to some, but not all, of the individuals who share a characteristic urged to be relevant. U.S.C.A. Const.Amend. 14. [28] Constitutional Law 92 3041 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)5 Scope of Doctrine in Gener- al 92k3038 Discrimination and Classific- ation 92k3041 k. Similarly situated per- sons; like circumstances. Most Cited Cases The Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike. U.S.C.A. Const.Amend. 14. [29] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-sex marriage. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Even assuming that Utah's interest in promot- ing childbearing and optimal childrearing was a compelling government interest, Utah's constitu- tional and statutory prohibitions against the recog- nition of same-sex marriage were not causally con- nected to that interest, and thus the prohibitions vi- olated same-sex couples' fundamental right to marry under the Due Process and Equal Protection clauses; it was wholly illogical to believe that state Page 7 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (314 of 518) recognition of the love and commitment between same-sex couples would alter the most intimate and personal decisions of opposite-sex couples. U.S.C.A. Const.Amend. 14; 1 U.S.C.A. 7; West's U.C.A. Const. Art. 1, 29; West's U.C.A. 30-1-2, 30-1-4.1. [30] Constitutional Law 92 2480 92 Constitutional Law 92XX Separation of Powers 92XX(C) Judicial Powers and Functions 92XX(C)2 Encroachment on Legislature 92k2479 Determination of Facts 92k2480 k. In general. Most Cited Cases Constitutional Law 92 3057 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Reasonableness 92k3057 k. Statutes and other writ- ten regulations and rules. Most Cited Cases In some instances, courts must accord substan- tial deference to the predictive judgments of legis- lative authorities, but even under more relaxed forms of equal protection scrutiny, a challenged classification must find some footing in the realities of the subject addressed by the legislation based on a reasonably conceivable state of facts. U.S.C.A. Const.Amend. 14. [31] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Even assuming that Utah's interest in encour- aging gendered parenting styles was a compelling government interest, Utah's constitutional and stat- utory prohibitions against the recognition of same- sex marriage were not narrowly tailored toward the goal of encouraging gendered parenting styles, and thus the prohibitions violated same-sex couples' fundamental right to marry under the Equal Protec- tion Clause; the speculative claim that children raised by opposite-sex parents fared better than children raised by same-sex parents did not over- come the harm to children of same-sex couples who were denied the protection and stability of having parents who are legally married. U.S.C.A. Const.Amend. 14; 1 U.S.C.A. 7; West's U.C.A. Const. Art. 1, 29; West's U.C.A. 30-1-2, 30-1-4.1. [32] Constitutional Law 92 967 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)1 In General 92k964 Form and Sufficiency of Ob- jection, Allegation, or Pleading 92k967 k. Particular claims. Most Cited Cases On strict scrutiny under the Equal Protection Clause, an argument based only on pure speculation and conjecture cannot carry the day. U.S.C.A. Const.Amend. 14. [33] Constitutional Law 92 3438 Page 8 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (315 of 518) 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-sex marriage. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Utah's constitutional and statutory prohibitions against recognition of same-sex marriage could not be justified, against due process and equal protec- tion challenges, by concerns that some substantial degree of civil discord would otherwise ensue. U.S.C.A. Const.Amend. 14; 1 U.S.C.A. 7; West's U.C.A. Const. Art. 1, 29; West's U.C.A. 30-1-2, 30-1-4.1. [34] Judges 227 24 227 Judges 227III Rights, Powers, Duties, and Liabilities 227k24 k. Judicial powers and functions in general. Most Cited Cases It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. [35] Constitutional Law 92 1065 92 Constitutional Law 92VII Constitutional Rights in General 92VII(B) Particular Constitutional Rights 92k1065 k. In general. Most Cited Cases One's right to life, liberty, and property, to free speech, a free press, freedom of worship and as- sembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. U.S.C.A. Const.Amends. 1, 14. West Codenotes Held UnconstitutionalWest's U.C.A. Const. Art. 1, 29West's U.C.A. 3012(5), 3014.1 Recognized as Unconstitutional1 U.S.C.A. 7 Appeal from the United States District Court for the District of Utah (D.C. No. 2:13CV00217RJS). Gene C. Schaerr, Special Assistant Attorney Gener- al, Salt Lake City, UT (Brian L. Tarbet, Chief Deputy Attorney General, Parker Douglas, Chief of Staff and General Counsel, Stanford E. Purser, and Philip S. Lott, Assistant Utah Attorneys General, Salt Lake City, UT, and John J. Bursch, Warner Norcross & Judd LLP, Grand Rapids, MI, and Monte N. Stewart, Boise, ID, with him on the briefs), for DefendantsAppellants. Peggy A. Tomsic, Magleby & Greenwood PC, Salt Lake City, UT (James E. Magleby and Jennifer Fraser Parrish, Magleby & Greenwood PC, Salt Lake City, UT, and Kathryn D. Kendell, Shannon P. Minter, David C.Codell, National Center for Les- bian Rights, San Francisco, CA, with her on the brief), for PlaintiffsAppellees. FN* Before KELLY, LUCERO, and HOLMES, Circuit Judges. LUCERO, Circuit Judge. Page 9 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (316 of 518) *1 Our commitment as Americans to the prin- ciples of liberty, due process of law, and equal pro- tection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal brought to us by the Governor and Attorney Gener- al of the State of Utah from an adverse ruling of the district court. We are told that because they felt threatened by state-court opinions allowing same-sex marriage, Utah legislators andby legislatureinitiated ac- tion-the citizens of the State of Utah amended their statutes and state constitution in 2004 to ensure that the State will not recognize, enforce, or give legal effect to any law that provides substantially equi- valent benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex. Utah Code 3014.1. These laws were also intended to assure non-recognition irrespective of how such a domestic union might be denominated, or where it may have been per- formed. Id. Plaintiffs challenged the constitutional- ity of these laws and the district court agreed with their position. Under 28 U.S.C. 1291, we enter- tain the appeal of that ruling. Our Circuit has not previously considered the validity of same-sex marriage bans. When the seed of that question was initially presented to the United States Supreme Court in 1972, the Court did not consider the matter of such substantial moment as to present a justiciable federal question. Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (per curiam). Since that date, the seed has grown, however. Last year the Court entertained the federal aspect of the issue in striking down 3 of the Defense of Marriage Act (DOMA), United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), yet left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry? Having heard and carefully considered the ar- gument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the mar- riage union. For the reasons stated in this opinion, we affirm. I Utah residents Derek Kitchen and Moudi Sbeity have been in a loving, committed relation- ship for several years. The couple lives together in Salt Lake City, where they jointly own and operate a business. Kitchen declares that Sbeity is the man with whom I have fallen in love, the man I want to marry, and the man with whom I want to spend the rest of my life. In March 2013, Kitchen and Sbeity applied for a marriage license from the Salt Lake County Clerk's office, but were denied because they are both men. Being excluded from the institution of marriage has caused Kitchen and Sbeity to un- dertake a burdensome process of drawing up wills and other legal documents to enable them to make important decisions for each other. Even with these protections, however, the couple cannot access various benefits of marriage, including the ability to file joint state tax returns and hold marital property. Sbeity also states that the legal documents the couple have obtained do not and cannot provide the dignity, respect, and esteem of marriage. The inability to dignify [his] relationship though mar- riage, Kitchen explains, communicates to him that his relationship with Sbeity is unworthy of respect, Page 10 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (317 of 518) equal treatment, and social recognition. *2 Laurie Wood and Kody Partridge are also Utah residents who wish to confirm [their] life commitment and love through marriage. They ap- plied for a marriage license from the Salt Lake County Clerk's office in March 2013, but were denied because they are both women. This denial made Wood feel like a second class citizen. The couple's inability to marry carries financial con- sequences. Because Partridge will be unable to ob- tain benefits under Wood's pension, the couple has procured additional life insurance policies. Part- ridge states that she and Wood face risks and stig- mas that none of [her] heterosexual married friends and family ever have to face. She points to the ex- ample of her parents, who were married for fifty- five years, observing that her father never had to worry about his ability to be present or make med- ical decisions when his wife became terminally ill. Wood hopes that marriage to Partridge will allow both society and our families [to] recognize the life commitment and love we feel for each other. Karen Archer and Kate Call are also Utah res- idents in a loving, committed relationship. Archer, who suffers from chronic health problems, fears that the legal documents the couple has prepared will be subject to challenge if she passes away. Her past experience surviving other partners informs this fear. Although the documents she prepared in a prior relationship served their purpose when her former partner passed, Archer was ineligible to re- ceive her partner's military pension benefits. Seek- ing the security enjoyed by other married couples, Archer and Call travelled to Iowa in July 2011, where they were wed. Because they could not be married in their home state, financial constraints dictated a modest wedding unattended by family and friends. Despite the inconvenience and sad pragmatism of our Iowa marriage, Call explains, we needed whatever protections and security we could get for our relationship because of Archer's failing health. However, Utah does not recognize Archer and Call's marriage. In March 2013, Kitchen, Sbeity, Wood, Part- ridge, Archer, and Call filed suit against the Gov- ernor and Attorney General of Utah and the Clerk of Salt Lake County (all in their official capacities). Plaintiffs challenged three provisions of Utah law relating to same-sex marriage. Utah Code 3012(5) includes among the marriages that are prohibited and declared void those between per- sons of the same sex. Id. In 2004, the Utah Legis- lature passed 3014.1, which provides: (1)(a) It is the policy of this state to recognize as marriage only the legal union of a man and a wo- man as provided in this chapter. (b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, en- force, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married. *3 (2) Nothing in Subsection (1) impairs any con- tract or other rights, benefits, or duties that are enforceable independently of this section. Id. The Legislature also referred a proposed constitutional amendment, known as Amendment 3, to Utah's voters. It states: (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denomin- ated, may be recognized as a marriage or given the same or substantially equivalent legal effect. Utah Const. art. I, 29; see Laws 2004, H.J.R. 25 1. The State's official voter pamphlet described rulings by courts in other states striking down stat- utory prohibitions on same-sex marriage as incon- sistent with state constitutional provisions. In the arguments for section, written by a state repres- entative and a state senator, the proponents argued Page 11 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (318 of 518) that the Amendment was necessary to protect against a similar state-court ruling. They posited that the proposed amendment would not promote intolerance, hatred, or bigotry but would instead preserve[an] historic understanding of marriage rooted in government's strong interest in maintain- ing public morality, the justified preference for het- erosexual marriage with its capacity to perpetuate the human race and the importance of raising chil- dren in that preferred relationship. Opponents of the amendment argued that it singles out one spe- cific grouppeople who are our relatives, neigh- bors, and co-workersto deny them hundreds of rights and protections that other Utahns enjoy. Amendment 3 passed with approximately 66% of the vote and became 29 of Article I of the Utah Constitution. This opinion will refer to both of the foregoing statutes, along with the constitutional amendment, collectively as Amendment 3. Plaintiffs allege that Amendment 3 violates their right to due process under the Fourteenth Amendment by depriving them of the fundamental liberty to marry the person of their choice and to have such a marriage recognized. They also claim that Amendment 3 violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs as- serted their claims under 42 U.S.C. 1983, seeking both a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement. On cross motions for summary judgment, the district court ruled in favor of the plaintiffs. It con- cluded that [a]ll citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual's ability to marry and the intimate choices a person makes about mar- riage and family. Kitchen v. Herbert, 961 F.Supp.2d 1181, 1204 (D.Utah 2013). The court further held that Amendment 3 denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. Id. at 120607, 121015. It declared Amendment 3 un- constitutional and permanently enjoined enforce- ment of the challenged provisions. Id. at 1216. *4 Utah's Governor and Attorney General filed a timely notice of appeal and moved to stay the dis- trict court's decision. Both the district court and this court denied a stay. The Supreme Court, however, granted a stay of the district court's injunction pending final disposition of the appeal by this court. II [1][2] We first consider the issue of standing, although it was not raised by the parties. See Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir.2009) ([S]tanding is a component of this court's jurisdiction, and we are obliged to consider it sua sponte to ensure the existence of an Article III case or controversy .). To possess Article III standing, a plaintiff must establish (1) that he or she has suffered an injury in fact; (2) that the injury is fairly traceable to the challenged action of the de- fendant; and[ ](3) that it is likely that the injury will be redressed by a favorable decision. Awad v. Ziri- ax, 670 F.3d 1111, 1120 (10th Cir.2012) (quotations omitted). [3][4][5][6] Plaintiffs suing public officials can satisfy the causation and redressability require- ments of standing by demonstrating a meaningful nexus between the defendant and the asserted in- jury. Bronson v. Swensen, 500 F.3d 1099, 111112 (10th Cir.2007). [T]he causation element of stand- ing requires the named defendants to possess au- thority to enforce the complained-of provision, id. at 1110, and [t]he redressability prong is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute, id. at 1111. Whether the Defendants have enforce- ment authority is related to whether, under Ex parte Young, they are proper state officials for suit. Cressman v. Thompson, 719 F.3d 1139, 1146 n. 8 (10th Cir.2013) (citation omitted). Under Ex parte Young, a state defendant sued in his official capa- city must have some connection with the enforce- ment of a challenged provision. 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908). An officer need Page 12 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (319 of 518) not have a special connection to the allegedly un- constitutional statute; rather, he need only have a particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty. Chamber of Commerce of the U.S. v. Edmondson, 594 F.3d 742, 760 (10th Cir.2010) (quotation omit- ted); see also Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir.2007) (So long as there is [some] connection [with enforcement of the act], it is not necessary that the officer's enforcement duties be noted in the act. (quotation omitted)). We have no doubt that at least four of the plaintiffs possessed standing to sue the Salt Lake County Clerk based on their inability to obtain mar- riage licenses from the Clerk's office. Plaintiffs have identified several harms that flow from this denial, including financial injury. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir.2005) (economic loss may constitute injury-in-fact). Be- cause county clerks are responsible under Utah law for issuing marriage licenses and recording mar- riage certificates, Utah Code 3017(1) & 30112(1), these plaintiffs' injuries were caused by the Clerk's office and would be cured by an in- junction prohibiting the enforcement of Amend- ment 3. Accordingly, the Salt Lake County Clerk possessed the requisite nexus to plaintiffs' injuries. *5 [7] The Salt Lake County Clerk, however, has not appealed from the district court's order. We must therefore consider whether the Governor and Attorney General are proper appellants absent the County Clerk. See Hollingsworth v. Perry, U.S. , , 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013) ([S]tanding must be met by persons seek- ing appellate review, just as it must be met by per- sons appearing in courts of first instance. (quotation omitted)). In Bishop v. Oklahoma ex rel. Edmondson, 333 F. App'x 361 (10th Cir.2009) (unpublished), we held that Oklahoma's Governor and Attorney General were not proper defendants in a challenge to that state's prohibition on same-sex marriage. Id. at 365. Because of the legal and factu- al differences between that case and this one, we reach the opposite conclusion as to Utah's Governor and Attorney General. Our holding in Bishop turned on the conclusion that marriage licensing and recognition in Ok- lahoma were within the administration of the judi- ciary. Id. The district court clerk charged with various duties related to marriage is judicial per- sonnel and is an arm of the court ... subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrat- ive District Judge in the clerk's administrative dis- trict. Id. (quoting Speight v. Presley, 203 P.3d 173, 177 (Okla.2008) (additional internal quotation omitted)). Accordingly, we concluded that the ex- ecutive branch of Oklahoma's government has no authority to issue a marriage license or record a marriage. Id. In Utah, marriage licenses are issued not by court clerks but by county clerks. See Utah Code 17204 (listing duties of county clerks) & 1753101 (providing for election of county clerks). The Governor and Attorney General have explicitly taken the position in this litigation that they have ample authority to ensure that the Salt Lake County Clerk return[s] to her former practice of limiting marriage licenses to man-woman couples in compliance with Utah law. This asser- tion is supported by the Utah Code. The Governor is statutorily charged with supervis[ing] the offi- cial conduct of all executive and ministerial of- ficers FN1 and see[ing] that all offices are filled and the duties thereof performed. 6711(1) & (2). In addition, he may require the attorney gener- al to aid any county attorney or district attorney in the discharge of his duties. 6711(7). Utah law allows an action for the removal of a county officer for malfeasance in office to be brought by a county attorney, or district attorney for the county in which the officer was elected or appointed, or by the attorney general. 7761 & 2. The Attorney General is required to exercise supervisory powers over the district and county at- torneys of the state in all matters pertaining to the Page 13 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (320 of 518) duties of their offices and when required by the public service or directed by the governor, assist any county, district, or city attorney in the dis- charge of his duties. 6751(6) & (8). A clerk who knowingly issues a license for any prohibited marriage is guilty of a class A misdemeanor. 30116. Such charges would be filed by a county or district attorney under the supervision of the At- torney General. See 1718a201 (district and county attorneys act as public prosecutors). And the Governor could order the Attorney General to assist in such prosecution. 6711(7). *6 The Governor and Attorney General have also demonstrated a willingness to exercise their duty to ensure clerks and other state officials en- force Amendment 3. Chamber of Commerce, 594 F.3d at 760 (quotation omitted). The record shows that the Governor coordinated state agencies' re- sponse to the district court's order, informing his cabinet: For those agencies that now face conflicting laws either in statute or administrative rule, you should consult with the Assistant Attorney Generals as- signed to your agency on the best course to re- solve those conflicts. You should also advise your analyst in [the Governor's Office of Man- agement and Budget] of the plans for addressing the conflicting laws. Where no conflicting laws exist you should conduct business in compliance with the federal judge's ruling until such time that the current dis- trict court decision is addressed by the 10th Cir- cuit Court. Thus, state agencies with responsibility for the recognition of out-of-state marriages are being dir- ected by the Governor in consultation with the At- torney General. These officials' authority over such agencies is confirmed by Utah law. For example, Plaintiffs Archer and Call, who were married in Iowa, specifically seek to file joint Utah tax returns. Although the Utah State Tax Commission is charged in the first instance with the duty to ad- minister and supervise the tax laws of the state, Utah Code 591210(5), the Attorney General in his constitutional role as the legal adviser of the State officers, Utah Const. art. VII, 16, is re- quired by statute to offer his opinion in writing ... to any state officer, board, or commission, Utah Code 6751(7). The Attorney General considers his opinions to the Utah State Tax Commission, even informal ones, to be authoritative for the pur- poses of the Commission with respect to the spe- cific questions presented. Applicability of Sales & Use Tax to Transfer of Motor Vehicle from a Part- ner to a P'ship, Op. Utah Att'y Gen. 8613 (1987), 1987 Utah AG LEXIS 15, at *22. The Attorney General is empowered to direct the Tax Commis- sion to recognize Archer and Call's Iowa wedding, and the Commission would be legally obligated to follow that instruction and accept a joint tax return. Accordingly, Archer and Call had standing to sue the Attorney General for the injuries caused by Amendment 3's nonrecognition provisions. See gen- erally Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir.2011) (Plaintiffs must have standing to seek each form of relief in each claim. (quotation omitted)). The same is true with respect to the Governor. Utah's executive power is vested in the Gov- ernor. Utah Const. art. VII, 5. In the exercise of that power, the Governor appoints the state's tax commissioners and has the power to initiate pro- ceedings to remove them from office. Utah Code 591201. Shortly after the Governor sent the above-quoted message to state agencies, the Tax Commission issued a Tax Notice stating that [s]ame-sex couples who are eligible to file a joint federal income tax return and who elect to file jointly, may also file a joint 2013 Utah Individual Income Tax return. Utah State Tax Commission, Individual Income Tax Returns for SameSex Couples for Tax Year 2013 (Jan. 15, 2014) (available at ht- tp://tax.utah.gov/notice/20140115.pdf). The Tax Notice refers to the district court's injunction, not- ing that a stay of that order had not been granted as Page 14 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (321 of 518) of December 31, 2013. Id. Thus, one of the injuries explicitly cited by plaintiffs Archer and Call has been at least temporarily redressed by the district court's decision and actions taken in response to it by the Governor after consultation with the Attor- ney General. *7 [8] We conclude that the Governor's and the Attorney General's actual exercise of supervisory power and their authority to compel compliance from county clerks and other officials provide the requisite nexus between them and Amendment 3. Although it does not suffice if the injury com- plained of is the result of the independent action of some third party not before the court, that does not exclude injury produced by determinative or coer- cive effect upon the action of someone else. Ben- nett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotation, alteration, and emphasis omitted). And a state official is a proper defendant if he is responsible for general supervi- sion of the administration by the local ... officials of a challenged provision. Papasan v. Allain, 478 U.S. 265, 282 n. 14, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (quotation omitted). This is so even if the state officials are not specifically empowered to ensure compliance with the statute at issue, if they clearly have assisted or currently assist in giving effect to the law. Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir.2007) (footnote omitted). Having concluded that the Governor and Attor- ney General were properly made defendants below, we hold that they have standing to appeal the dis- trict court's decision without participation of the Salt Lake County Clerk. See Finstuen, 496 F.3d at 1151 (Nothing in Ex Parte Young requires that any appeal of a lower court's judgment involve all named state defendants.). As unsuccessful parties below, both appellants were injured by the judg- ment sought to be reviewed. Parr v. United States, 351 U.S. 513, 516, 76 S.Ct. 912, 100 L.Ed. 1377 (1956); see also Concorde Res., Inc. v. Woosley ( In re Woosley ), 855 F.2d 687, 688 (10th Cir.1988) (Ordinarily, only a litigant who is a party below and who is aggrieved by the judgment or order may appeal. (quotation and emphasis omitted)). Both the Governor and the Attorney General are subject to the district court's injunction prohibiting them from enforcing Amendment 3. See Kitchen, 961 F.Supp.2d at 1216; cf. Hollingsworth, 133 S.Ct. at 2662 (concluding appellants lacked standing to ap- peal because the District Court had not ordered [the intervenors] to do or refrain from doing any- thing). We thus conclude that standing issues do not prevent us from considering this appeal. III [9] In 1972, the Supreme Court summarily dismissed for want of substantial federal question an appeal from the Minnesota Supreme Court up- holding a ban on same-sex marriage. Baker, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65. The state court considered whether a marriage of two per- sons of the same sex is authorized by state statutes and, if not, whether state authorization is constitu- tionally compelled. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185 (Minn.1971). It con- cluded that the statute used the term marriage as one of common usage, meaning the state of union between persons of the opposite sex. Id. at 18586. The state court further reasoned that [t]he institution of marriage as a union of man and wo- man, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis and that [t]he due process clause of the Fourteenth Amendment is not a charter for restruc- turing [the institution of marriage] by judicial legis- lation. Id. at 186. As to the Equal Protection Clause, the court ruled that [t]here is no irrational or invidious discrimination because in common- sense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the funda- mental difference in sex. Id. at 187. *8 [10][11] The Supreme Court has held that summary dismissals are, of course, to be taken as rulings on the merits, in the sense that they rejected Page 15 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (322 of 518) the specific challenges presented in the statement of jurisdiction and left undisturbed the judgment ap- pealed from. Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 477 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (quotation and citation omitted). Summary dis- missals do not, however, have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits. A sum- mary dismissal of an appeal represents no more than a view that the judgment appealed from was correct as to those federal questions raised and necessary to the decision. It does not, as we have continued to stress, necessarily reflect our agree- ment with the opinion of the court whose judg- ment is appealed. Id. (citations omitted); see Neely v. Newton, 149 F.3d 1074, 1079 (10th Cir.1998) (The Su- preme Court has cautioned that for purposes of de- termining the binding effect of a summary action, the action should not be interpreted as adopting the rationale of the lower court, but rather as affirming only the judgment of that court.). Summary af- firmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdic- tion. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). And [t]hey do prevent lower courts from coming to opposite con- clusions on the precise issues presented and neces- sarily decided by those actions. Id. [I]f the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation omitted). FN2 The district court concluded that doctrinal developments had superseded Baker. Kitchen, 961 F.Supp.2d at 119495. We agree. Two landmark decisions by the Supreme Court have undermined the notion that the question presented in Baker is insubstantial. Baker was de- cided before the Supreme Court held that intimate conduct with another person ... can be but one ele- ment in a personal bond that is more enduring. The liberty protected by the Constitution allows homo- sexual persons the right to make this choice. Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The decision in Baker also pre-dates the Court's opinion in Wind- sor. Several courts held prior to Windsor that Baker controlled the same-sex marriage question. See, e.g., Massachusetts v. U.S. Dep't of Health & Hu- man Servs., 682 F.3d 1, 8 (1st Cir.2012) ( Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.); Don- aldson v. State, 367 Mont. 228, 292 P.3d 364, 371 n. 5 (Mont.2012) (The U.S. Supreme Court's ac- tion in Baker has been described as binding preced- ent. (citations omitted)). However, since Windsor was decided, nearly every federal court to have considered the issueincluding the district court belowhas ruled that Baker does not control. See Wolf v. Walker, No. 14cv64bbc, 2014 U.S. Dist. LEXIS 77125, at *1018 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, No. 1:13cv1861, 2014 U.S. Dist. LEXIS 68771, at * 1418 (M.D.Pa. May 20, 2014); Geiger v. Kitzhaber, Nos. 6:13cv01834MC & 6:13cv02256MC, 2014 U.S. Dist. LEXIS 68171, at *7 n. 1 (D.Or. May 19, 2014); Latta v. Otter, No. 1:13cv00482CWD, 2014 U.S. Dist. LEXIS 66417, at *28 (D.Idaho May 13, 2014); DeBoer v. Snyder, No. 12CV10285, 2014 U.S. Dist. LEXIS 37274, at *46 n. 6 (E.D.Mich. Mar. 21, 2014); De Leon v. Perry, No. SA13CA00982OLG, 2014 U .S. Dist. LEXIS 26236, at *2829 (W.D.Tex. Feb.26, 2014); Bostic v. Rainey, 970 F.Supp.2d 456, 470 (E.D.Va.2014); McGee v. Cole, No. 3:1324068, 2014 U.S. Dist. LEXIS 10864, at *32 (S.D.W.Va. Jan. 29, 2014); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1277 (N.D.Okla.2014); Kitchen, 961 F.Supp.2d at 1195. But see Merritt v. Att'y Gen., No. 13215BAJSCR, 2013 U.S. Dist. LEXIS 163235, at *2 (M.D.La. Oct. 2, 2013), ma- gistrate judge report adopted by 2013 U.S. Dist. LEXIS 162583 (M.D.La. Nov. 13, 2013) (citing Page 16 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (323 of 518) Baker as controlling in dismissing pro se complaint, but not considering whether doctrinal developments had undermined Baker ). *9 We acknowledge that the question presented in Windsor is not identical to the question before us. DOMA interfered with New York's decision that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other mar- ried persons, a decision designed to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. Windsor, 133 S.Ct. at 2689. The State used its historic and essential authority to define the marital relation in this way, and its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. Id. at 2692. Because DOMA used this state-defined class for the oppos- ite purposeto impose restrictions and disabilit- ies, the Court framed the dispositive question as whether the resulting injury and indignity is a deprivation of an essential part of the liberty pro- tected by the Fifth Amendment. Id. Although it is true that Windsor resolved tension between a state law permitting same-sex marriage and a federal non-recognition provision, the Court's description of the issue indicates that its holding was not solely based on the scope of federal versus state powers. Appellants stress the presence of these federal- ism concerns in Windsor, which, as the Chief Justice noted in dissent, come into play on the oth- er side of the board in ... cases about the constitu- tionality of state bans on same-sex marriage. Id. at 2697 (Roberts, C.J., dissenting). The Windsor ma- jority stated repeatedly that the regulation of mar- riage has traditionally been a state function. See id. at 2691 (State laws defining and regulating mar- riage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States. (quotation and citation omitted)); id. (The states, at the time of the adoption of the Con- stitution, possessed full power over the subject of marriage and divorce .... (quotation and alterations omitted)); id. (Consistent with this allocation of authority, the Federal Government, through our his- tory, has deferred to state-law policy decisions with respect to domestic relations.). Appellants urge us to conclude that the principles of federalism that Windsor would later reaffirm require us to adhere to the Court's summary affirmance in Baker. However, the Windsor Court also explained that the federal government in enacting discrete statutes, can make determinations that bear on mar- ital rights and privileges. Id. at 2690. For example, Congress can preempt state marriage laws dealing with insurance proceeds in a federal program, reject sham marriages for immigration purposes even if the marriage is valid under state law, and recognize common-law marriage for the purpose of establish- ing income-based Social Security benefit eligibility regardless of state law. Id. The Windsor Court con- cluded it was unnecessary to decide whether DOMA is a violation of the Constitution because it disrupts the federal balance. Id. at 2692. *10 Rather than relying on federalism prin- ciples, the Court framed the question presented as whether the injury and indignity caused by DOMA is a deprivation of an essential part of the liberty protected by the Fifth Amendment. Id. And the Court answered that question in the affirmative: The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohib- ition against denying to any person the equal pro- tection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. Id. at 2695 (citations omitted). Page 17 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (324 of 518) The history of DOMA's enactment and its own text, the Court concluded, demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its es- sence. Id. at 2693. DOMA impose[d] a disadvant- age, a separate status, and so a stigma upon all who enter into same-sex marriages.... Id. The statute undermine[d] both the public and private signific- ance of state-sanctioned same-sex marriages by telling those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. Id. at 2694. And it humiliate[d] tens of thousands of children now being raised by same- sex couples by making it even more difficult for the children to understand the integrity and close- ness of their own family and its concord with other families in their community and in their daily lives. Id. Because DOMA's differentiation de- means [same-sex] couple[s], whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508, and whose relationship[s] the State has sought to dignify, the Court held that the stat- ute violated the Fifth Amendment. Windsor, 133 S.Ct. at 269495. The Windsor majority expressly cabined its holding to state-recognized marriages, id. at 2696, and is thus not directly controlling. But the similar- ity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored. This is particularly true with respect to plaintiffs Archer and Call, who seek recognition by Utah of a marriage that is valid in the state where it was performed. More generally, all six plaintiffs seek equal dignity for their marital aspirations. All claim that the state's differential treatment of them as compared to opposite-sex couples demeans and undermines their relationships and their personal autonomy. Although reasonable judges may dis- agree on the merits of the same-sex marriage ques- tion, we think it is clear that doctrinal developments foreclose the conclusion that the issue is, as Baker determined, wholly insubstantial. FN3 IV *11 We turn now to the merits of the issue be- fore us. We must first decide whether the liberty in- terest protected in this case includes the right to marry, and whether that right is limited, as appel- lants contend, to those who would wed a person of the opposite sex. The district court granted summary judgment in favor of the plaintiffs. We review a grant of sum- mary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir.2009). A party is entitled to summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the movant is entitled to judgment as a matter of law. Id.; see Fed.R.Civ.P. 56(a). [12][13] We review the decision to grant a permanent injunction for abuse of discretion. FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir.2009). To obtain a permanent injunction, a plaintiff must show: (1) actual success on the mer- its; (2) irreparable harm unless the injunction is is- sued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. Sw. Stainless, LP v. Sap- pington, 582 F.3d 1176, 1191 (10th Cir.2009). Be- cause appellants have challenged only the merits aspect of the district court's decision, we do not consider the remaining factors. See Bronson, 500 F.3d at 1104 ([T]he omission of an issue in an opening brief generally forfeits appellate considera- tion of that issue.). A [14][15][16][17] [A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Planned Parenthood v. Casey, 505 U.S. 833, 84647, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quotation omitted). The doctrine of sub- stantive due process extends protections to funda- Page 18 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (325 of 518) mental rights in addition to the specific freedoms protected by the Bill of Rights. Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); see also Casey, 505 U.S. at 848, 112 S.Ct. 2791 (Neither the Bill of Rights nor the specific practices of States at the time of the ad- option of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.). To qualify as fundamental, a right must be objectively, deeply rooted in this Nation's history and tradition ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed. Glucksberg, 521 U.S. at 72021, 117 S.Ct. 2258 (quotations omitted). 1 [18][19] There can be little doubt that the right to marry is a fundamental liberty. The marital rela- tionship is older than the Bill of Rightsolder than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. *12 Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Court has long recognized that marriage is the most important relation in life. Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888). Without doubt, the liberty protected by the Fourteenth Amendment includes the freedom to marry, establish a home[,] and bring up chil- dren. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); see also Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (The freedom to marry has long been recognized as one of the vital personal rights essen- tial to the orderly pursuit of happiness by free men.). Appellants contend that these precedents and others establish only that opposite-sex marriage is a fundamental right. They highlight the Court's ad- monition to undertake a careful description of the asserted fundamental liberty interest. Glucksberg, 521 U.S. at 721 (quotation omitted). This ap- proach tends to rein in the subjective elements that are necessarily present in due-process judicial re- view. Id.; see also Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (courts must exercise utmost care and be reluctant to expand the concept of substantive due process because guideposts for re- sponsible decisionmaking in this unchartered area are scarce and open-ended). A right to same-sex marriage cannot be deeply rooted in our tradition, appellants argue, because until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. Windsor, 133 S.Ct. at 2689; see also id. at 2715 (Alito, J ., dissenting) (In this country, no State permitted same-sex mar- riage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to oppos- ite-sex couples violated the State Constitution.). But the right to marry is of fundamental im- portance for all individuals. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). In numerous cases, the Court has discussed the right to marry at a broader level of generality than would be consistent with appellants' argument. The Loving Court concluded that a state statute voiding marriages between white and non-white participants violated the Due Process Clause. 388 U.S. at 4 n. 3, 12. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. To deny this fundamental freedom on so unsup- portable a basis as the racial classifications em- bodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to de- Page 19 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (326 of 518) prive all the State's citizens of liberty without due process of law. The Fourteenth Amendment re- quires that the freedom of choice to marry not be restricted by invidious racial discriminations. Un- der our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State. *13 Id. at 12 (quotation and citation omitted). As the Court later explained, [m]arriage is mentioned nowhere in the Bill of Rights and inter- racial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive com- ponent of the Due Process Clause in Loving v. Vir- ginia. Casey, 505 U.S. at 84748, 112 S.Ct. 2791 (citation omitted); see also Lawrence, 539 U.S. at 57778, 123 S.Ct. 2472 ([N]either history nor tra- dition could save a law prohibiting miscegenation from constitutional attack. (quotation omitted)). Thus the question as stated in Loving, and as char- acterized in subsequent opinions, was not whether there is a deeply rooted tradition of interracial mar- riage, or whether interracial marriage is implicit in the concept of ordered liberty; the right at issue was the freedom of choice to marry. Loving, 388 U.S. at 12. Similarly, Zablocki considered an equal protec- tion challenge to a state law barring individuals in arrearage of child support obligations from marry- ing. Because the right to marry is of fundamental importance and the classification at issue ... sig- nificantly interfere[d] with the exercise of that right, the Court determined that critical examina- tion of the state interests advanced in support of the classification [wa]s required. Zablocki, 434 U.S. at 383, 98 S.Ct. 673 (quotation omitted). It cau- tioned that not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not sig- nificantly interfere with decisions to enter into the marital relationship may legitimately be imposed. Id. at 386. But the statute at issue was impermiss- ible because it constituted a serious intrusion into [the] freedom of choice in an area in which we have held such freedom to be fundamental and could not be upheld unless it [wa]s supported by suffi- ciently important state interests and [wa]s closely tailored to effectuate only those interests. Id. at 387, 388. The right at issue was characterized as the right to marry, not as the right of child-support debtors to marry. 2 It is true that both Loving and Zablocki in- volved opposite-sex couples. Such pairings, appel- lants remind us, may be naturally procreativea potentially meaningful consideration given that the Court has previously discussed marriage and pro- creation together. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (Marriage and procreation are fundamental to the very existence and survival of the race.); Carey v. Population Servs. Int'l, 431 U.S. 678, 68485, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) ([I]t it is clear that among the decisions that an individual may make without unjustified govern- ment interference are personal decisions relating to marriage, procreation, contraception, family rela- tionships, and child rearing and education. The de- cision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally pro- tected choices. (quotation omitted)). *14 But the Court has also described the funda- mental right to marry as separate from the right to procreate, including in Glucksberg itself, the case upon which appellants' fundamental-right argument turns. See Glucksberg, 521 U.S. at 720 (describing Loving as a right-to-marry case and Skinner as a right-to-procreate case); accord M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (same). Appellants' contention that the right to marriage is fundamental because of its procreat- ive potential is also undercut by Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, the Court invalidated a prison rule Page 20 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (327 of 518) barring inmates from marrying unless a prison su- perintendent found compelling reasons for the mar- riage. Id. at 8182. [G]enerally only a pregnancy or the birth of an illegitimate child would be con- sidered a compelling reason. Id. at 82. Thus, the challenged rule operated to bar inmates who had not procreated from marrying. The Court began its analysis of the marriage restriction by dismissing the argument that the rule does not deprive prison- ers of a constitutionally protected right even though the decision to marry is a fundamental right because a different rule should obtain in a prison forum. Id. at 9495 (quotation and ellipses omitted). Despite the substantial restrictions [imposed] as a result of incarceration, the Court concluded, inmates could not be denied the funda- mental right of marriage simply because of their imprisonment. Id. at 95. The right at issue was nev- er framed as inmate marriage; the Court simply asked whether the fact of incarceration made it im- possible for inmates to benefit from the important attributes of marriage. Id.; see Latta, 2014 U.S. Dist. LEXIS 66417, at *37 (Loving was no more about the right to interracial marriage than Turner was about the prisoner's right to marry or Zab- locki was about the dead-beat dad's right to marry. Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.); Obergefell v. Wymyslo, 962 F.Supp.2d 968, 982 n. 10 (S.D.Ohio 2013) (In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Supreme Court consistently describes a general fundamental right to marry rather than the right to interracial mar- riage, the right to inmate marriage, or the right of people owing child support to marry. ). The Turner Court's description of the important attributes of marriage [that] remain ... after taking into account the limitations imposed by prison life, 482 U.S. at 95, 107 S.Ct. 2254, is rel- evant to the case at bar: First, inmate marriages, like others, are expres- sions of emotional support and public commit- ment. These elements are an important and signi- ficant aspect of the marital relationship. In addi- tion, many religions recognize marriage as hav- ing spiritual significance; for some inmates and their spouses, therefore, the commitment of mar- riage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by pa- role or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a pre-condition to the re- ceipt of government benefits (e.g., Social Secur- ity benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tan- gible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of con- finement or the pursuit of legitimate corrections goals. *15 Id. at 9596. The Court ruled that these remaining elements are sufficient to form a consti- tutionally protected marital relationship in the pris- on context even under the reasonable relationship test applicable to prison regulations. Id. at 9697. FN4 As the Turner opinion highlights, the import- ance of marriage is based in great measure on personal aspects including the expression[ ] of emotional support and public commitment. Id. at 9596. This conclusion is consistent with the Court's other pronouncements on the freedom to marry, which focus on the freedom to choose one's spouse. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 63940, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (This Court has long recognized that free- dom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amend- ment.); see also Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) Page 21 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (328 of 518) (plurality opinion) FN5 ([T]he regulation of con- stitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns oth- er than disagreement with the choice the individual has made.); Roberts v. U.S. Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ([T]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse....); Carey, 431 U.S. at 68485, 97 S.Ct. 2010 ([A]mong the decisions that an individual may make without unjustified government interfer- ence are personal decisions relating to marriage .... (quotation omitted)). The Turner Court also high- lighted the role of marriage in allowing its parti- cipants to gain access to legal and financial benefits they would otherwise be denied. 482 U.S. at 96, 107 S.Ct. 2254. We must reject appellants' efforts to downplay the importance of the personal elements inherent in the institution of marriage, which they contend are not the principal interests the State pursues by reg- ulating marriage. Rather than being [m]utually exclusive of the procreative potential of marriage, these freedomsto choose one's spouse, to decide whether to conceive or adopt a child, to publicly proclaim an enduring commitment to remain to- gether through thick and thinreinforce the chil- drearing family structure. Further, such freedoms support the dignity of each person, a factor emphas- ized by the Windsor Court. See 133 S.Ct. at 2692 (The State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.); id. (New York's decision enhanced the recognition, dignity, and protection of the class); id. (By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same- sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.); id. (plaintiff's relationship was deemed by the State worthy of dignity in the community equal with all other marriages). *16 Of course, the Windsor decision dealt with federal recognition of marriages performed under state law. But with respect to plaintiffs Archer and Call, who were married in Iowa and whose mar- riage Utah will not recognize under Amendment 3, the analogy to Windsor is particularly apt. Amend- ment 3's non-recognition provision, like DOMA, contrives to deprive some couples married under the laws of [another] State, but not other couples, of both rights and responsibilities.... By this dy- namic [Amendment 3] undermines both the pub- lic and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [Utah's] recognition.... The dif- ferentiation demeans the couple, whose moral and sexual choices the Constitution protects. Id. at 2694. [20][21] In light of Windsor, we agree with the multiple district courts that have held that the fun- damental right to marry necessarily includes the right to remain married. See Latta, 2014 U.S. Dist. LEXIS 66417, at *40 (Idaho's Marriage Laws render the Plaintiff couples legal strangers, strip- ping them of the choice to marry or remain married in the state they call home. Therefore, Idaho's Mar- riage Laws impermissibly infringe on Plaintiffs' fundamental right to marry.); Henry v. Himes, No. 1:14cv129, 2014 U.S. Dist. LEXIS 51211, at *22 (S.D.Ohio Apr. 14, 2014) (There are a number of fundamental rights and/or liberty interests protected by the Due Process clause that are implicated by the marriage recognition ban, including the right to marry, the right to remain married, and the right to parental autonomy. (footnote omitted)); De Leon, 2014 U.S. Dist. LEXIS 26236, at *66 ([B]y declar- ing existing, lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process.); Obergefell, 962 F.Supp.2d at 978 (The right to remain married is ... properly recog- nized as one that is a fundamental liberty interest Page 22 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (329 of 518) appropriately protected by the Due Process Clause of the United States Constitution.). FN6 And although we acknowledge that state recog- nition serves to enhance[ ] the interests at stake, Windsor, 133 S.Ct. at 2692, surely a great deal of the dignity of same-sex relationships inheres in the loving bonds between those who seek to marry and the personal autonomy of making such choices. As the Court held in Lawrence, several years before discussing the state recognition issues present in Windsor, adults may choose to enter upon [an intimate] re- lationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expres- sion in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. *17 539 U.S. at 567, 123 S.Ct. 2472. Appellants' assertion that the right to marry is fundamental because it is linked to procreation is further undermined by the fact that individuals have a fundamental right to choose against reproduction. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into mat- ters so fundamentally affecting a person as the de- cision whether to bear or beget a child. Eisen- stadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (emphasis omitted); see also Griswold, 381 U.S. at 48586, 85 S.Ct. 1678 (recognizing right of married individuals to use contraception). The Court has repeatedly referenced the raising of childrenrather than just their creationas a key factor in the inviolability of marital and famili- al choices. See, e.g., Carey, 431 U.S. at 685, 97 S.Ct. 2010 (child rearing and education decisions protected from unjustified government interfer- ence (quotation omitted)); Moore v. City of East Cleveland, 431 U.S. 494, 505, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion) ([d]ecisions concerning child rearing have been recognized as entitled to constitutional protec- tion); Pierce v. Soc'y of Sisters, 268 U.S. 510, 53435, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (discussing the liberty of parents and guardians to direct the upbringing and education of children un- der their control); Meyer, 262 U.S. at 399, 43 S.Ct. 625 (liberty protected by the Due Process Clause includes right to marry, establish a home[,] and bring up children). Although cohabitating same- sex couples are prohibited from jointly adopting children under Utah law as a result of the same-sex marriage ban, Utah Code 78B6117(3), the re- cord shows that nearly 3,000 Utah children are be- ing raised by same-sex couples. Thus childrearing, a liberty closely related to the right to marry, is one exercised by same-sex and opposite-sex couples alike, as well as by single individuals. FN7 Children of same-sex couples may lack a biolo- gical connection to at least one parent, but biological relationships are not [the] exclusive de- termina[nt] of the existence of a family. Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) . [T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promoting a way of life through the in- struction of children. Id. at 844 (quotation omit- ted); see also Utah Code 78B6139 (granting adoptive parents all rights and duties of biological parents). As the Court in Windsor held, restrictions on same-sex marriage humiliate[ ] tens of thou- sands of children now being raised by same-sex couples and make[ ] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other fam- ilies in their community and in their daily lives. 133 S.Ct. at 2694. Such statutes bring[ ] financial harm to children of same-sex couples ... raise[ ] the Page 23 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (330 of 518) cost of health care for families by taxing health be- nefits provided by employers to their workers' same-sex spouses and den[y] or reduce[ ] benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. Id. at 2695. These laws deny to the chil- dren of same-sex couples the recognition essential to stability, predictability, and dignity. Read liter- ally, they prohibit the grant or recognition of any rights to such a family and discourage those chil- dren from being recognized as members of a family by their peers. *18 Appellants urge us to conclude that a court cannot determine whether there is a right to mar- riage without first defining the institution. They also say that the term marriage by its nature ex- cludes same-sex couples. Glucksberg requires us to develop a careful description of the asserted fun- damental liberty interest, relying on [o]ur Na- tion's history, legal traditions, and practices [to] provide the crucial guideposts for responsible de- cisionmaking. 521 U.S. at 721 (quotation omitted). But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex. As we have dis- cussed, the Supreme Court has traditionally de- scribed the right to marry in broad terms independ- ent of the persons exercising it. The Court's other substantive due process cases similarly eschew a discussion of the right-holder in defining the scope of the right. In Glucksberg, for example, the Court framed the question presented as whether the liberty specially protected in the Due Process Clause includes a right to commit suicide which it- self includes a right to assistance in doing so. 521 U.S. at 723 (footnote omitted). The Court's formu- lation implicitly rejected respondents' framing of the claimed liberty as exercised by a specific class of persons: Whether the Fourteenth Amendment's guarantee of liberty protects the decision of a men- tally competent, terminally ill adult to bring about impending death in a certain, humane, and dignified manner. Br. of Resp't at i, Glucksberg, 521 U.S. 702 (No. 96110) (emphasis added). Prior to the Windsor decision, several courts concluded that the well-established right to marry eo ipso cannot be exercised by those who would choose a spouse of the same sex. See, e.g., Jackson v. Abercrombie, 884 F.Supp.2d 1065, 109498 (D.Haw.2012) ([T]he right at issue here is an as- serted new right to same-sex marriage.); Andersen v. King Cnty., 158 Wash.2d 1, 138 P.3d 963, 979 (Wash.2006) (en banc) (Plaintiffs have not estab- lished that at this time the fundamental right to marry includes the right to marry a person of the same sex.); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 10 (N.Y.2006) ([B]y defining marriage as it has, the New York Legislature has not restricted the exercise of a fun- damental right.). We nonetheless agree with plaintiffs that in describing the liberty interest at stake, it is impermissible to focus on the identity or class-membership of the individual exercising the right. See De Leon, 2014 U.S. Dist. LEXIS 26236, at *5859 (a state cannot define marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry, nor may it deny the same status and dignity to each citizen's de- cision (quotations omitted)). Simply put, funda- mental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them. Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 24 (Kaye, C.J., dissenting); see also Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 97273 (Mass.2003) (Greaney, J., concurring) (To define the institution of marriage by the char- acteristics of those to whom it always has been ac- cessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question....). Plaintiffs seek to enter into legally recognized marriages, with all the concomitant rights and responsibilities en- shrined in Utah law. They desire not to redefine the institution but to participate in it. *19 Appellants' assertion that plaintiffs are ex- cluded from the institution of marriage by defini- tion is wholly circular. Nothing logically or physic- ally precludes same-sex couples from marrying, as Page 24 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (331 of 518) is amply demonstrated by the fact that many states now permit such marriages. See Bostic, 970 F.Supp.2d at 473 (Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships.). Appellants' reliance on the modifier definitional does not serve a meaningful function in this context. To claim that marriage, by definition, excludes certain couples is simply to in- sist that those couples may not marry because they have historically been denied the right to do so. One might just as easily have argued that interracial couples are by definition excluded from the institu- tion of marriage. But neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Lawrence, 539 U.S. at 57778, 123 S.Ct. 2472 (quotation omitted); see also Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) ([N]either the antiquity of a practice nor the fact of steadfast le- gislative and judicial adherence to it through the centuries insulates it from constitutional attack....); In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 451 (Cal.2008) ([E]ven the most familiar and generally accepted of social practices and traditions often mask an un- fairness and inequality that frequently is not recog- nized or appreciated by those not directly harmed by those practices or traditions.), superseded by constitutional amendment as stated in Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, 59 (Cal.2009). Our conclusion that we are not required to de- fer to Utah's characterization of its ban on same-sex marriage as a definition is reinforced by the Court's opinion in Windsor. Section 3 of DOMA, which the Court invalidated, amend [ed] the Dic- tionary Act ... of the United States Code to provide a federal definition of marriage and spouse. Windsor, 133 S.Ct. at 2683. In relevant part, the statute read: [T]he word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a hus- band or a wife.' Id. (quoting 1 U.S.C. 7). Appel- lants repeatedly assert that Amendment 3 simply defines marriage, at one point contrasting the tra- ditional definition of marriage with the anti- miscegenation laws invalidated in Loving. They contend that Utah's marriage laws merely define marriage within its borders. The Court's holding in Windsor demonstrates that a provision labeled a definition is not immune from constitutional scrutiny. We see no reason to allow Utah's invoca- tion of its power to define the marital relation, Windsor, 133 S.Ct. at 2692, to become a talisman, by whose magic power the whole fabric which the law had erected ... is at once dissolved, Bank of the U.S. v. Dandridge, 25 U.S. (12 Wheat.) 64, 113, 6 L.Ed. 552 (1827) (Marshall, C.J., dissenting). *20 Whether a state has good reason to exclude individuals from the marital relationship based on a specific characteristic certainly comes into play in determining if the classification survives the appro- priate level of scrutiny. Even when a fundamental right is impinged, [s]trict scrutiny is not strict in theory, but fatal in fact. Grutter v. Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (quoting Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)). But the challenged classifica- tion cannot itself define the scope of the right at is- sue. The judiciary's obligation is to define the liberty of all. Casey, 505 U.S. at 850, 112 S.Ct. 2791. Although courts may be tempted to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified .... such a view would be inconsistent with our law. Id. at 847 (citation omitted). A prime part of the history of our Constitution ... is the story of the extension of constitutional rights and protections to people once ignored or ex- cluded. United States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). 3 Page 25 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (332 of 518) The Supreme Court's sexual orientation juris- prudence further precludes us from defining the fundamental right at issue in the manner sought by the appellants. In Lawrence, the Court struck down as violative of due process a statute that prohibited sexual conduct between individuals of the same sex. The Court reversed Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which in upholding a similar statute had framed the question as whether the Federal Constitution con- fers a fundamental right upon homosexuals to en- gage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. Id. at 190. The Lawrence Court held that this framing fail[ed] to appreciate the extent of the liberty at stake and misapprehended the claim of liberty there presen- ted to it. 539 U.S. at 567, 123 S.Ct. 2472. The Court acknowledged that for centuries there have been powerful voices to condemn homo- sexual conduct as immoral, but held that its oblig- ation was to define the liberty of all, not to man- date our own moral code. Id. at 571 (quotation omitted). [B]efore 1961 all 50 States had outlawed sodomy, yet [h]istory and tradition are the start- ing point but not in all cases the ending point of the substantive due process inquiry. Id. at 572 (quotation omitted). The Court firmly rejected Bowers' characterization of the liberty at issue: To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. Id. at 567. The Court's rejection of the manner in which Bowers described the liberty interest involved is ap- plicable to the framing of the issue before us. There was clearly no history of a protected right to homosexual sodomy, just as there is no lengthy tradition of same-sex marriage. But the Lawrence opinion indicates that the approach urged by appel- lants is too narrow. Just as it was improper to ask whether there is a right to engage in homosexual sex, we do not ask whether there is a right to parti- cipate in same-sex marriage. FN8 *21 We must also note that Lawrence itself al- luded to marriage, stating that our laws and tradi- tion afford constitutional protection to personal de- cisions relating to marriage, procreation, contracep- tion, family relationships, child rearing, and educa- tion. 539 U.S. at 574, 123 S.Ct. 2472. The Court quoted Casey's holding that matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dig- nity and autonomy, are central to the liberty protec- ted by the Fourteenth Amendment and ruled that [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. Lawrence, 539 U.S. at 574, 123 S.Ct. 2472 (quotation omitted). The drafters of the Fifth and Fourteenth Amendments knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Id. at 579. A gen- eration ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the de- claration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the district court elo- quently explained, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. Kitchen, 961 F.Supp.2d at 1203. Consistent with our constitutional tradition of re- cognizing the liberty of those previously excluded, we conclude that plaintiffs possess a fundamental right to marry and to have their marriages recog- nized. B Page 26 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (333 of 518) [22][23] The Due Process Clause forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (quotation and emphasis omitted). By the same token, if a classification impinge[s] upon the exercise of a fundamental right, the Equal Protec- tion Clause requires the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. Plyler v. Doe, 457 U.S. 202, 21617, 102 S.Ct. 2382, 72 L.Ed.2d 786 (quotation omitted). Having persuaded us that the right to marry is a fundamental liberty, plaintiffs will prevail on their due process and equal protection claims unless appellants can show that Amendment 3 survives strict scrutiny. [24][25] A provision subject to strict scrutiny cannot rest upon a generalized assertion as to the classification's relevance to its goals. Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). The purpose of the narrow tailoring requirement is to ensure that the means chosen fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate. Grutter, 539 U.S. at 333, 123 S.Ct. 2325 (quotation omit- ted). Only the most exact connection between jus- tification and classification survives. Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (quotation omitted). *22 Appellants advance four justifications for Amendment 3. They contend it furthers the state's interests in: (1) fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children; (2) children being raised by their biological mothers and fathersor at least by a married mother and fatherin a stable home; (3) ensuring adequate reproduction; and (4) accommodating religious freedom and reducing the potential for civic strife. 1 [26] We will assume that the first three ra- tionales asserted by appellants are compelling. These justifications falter, however, on the means prong of the strict scrutiny test. Each rests on a link between marriage and procreation. Appellants con- tend that Utah has steadfastly sought to reserve unique social recognition for man-woman marriage so as to guide as many procreative couples as pos- sible into the optimal, conjugal childrearing mod- el; that children suffer when procreation and chil- drearing occur outside stable man-woman mar- riages; and that [b]y providing special privileges and status to couples that are uniquely capable of producing offspring without biological assistance from third parties, the State sends a clear if subtle message to all of its citizens that natural reproduc- tion is healthy, desirable and highly valued. (Emphasis omitted.) The common thread running through each of appellants' first three arguments is the claim that allowing same-sex couples to marry would break the critical conceptual link between marriage and procreation. The challenged restrictions on the right to marry and on recognition of otherwise valid mar- riages, however, do not differentiate between pro- creative and non-procreative couples. Instead, Utah citizens may choose a spouse of the opposite sex re- gardless of the pairing's procreative capacity. The elderly, those medically unable to conceive, and those who exercise their fundamental right not to have biological children are free to marry and have their out-of-state marriages recognized in Utah, ap- parently without breaking the conceptual link between marriage and procreation. The only expli- cit reference to reproduction in Utah's marriage law is a provision that allows first cousins to marry if both parties are 65 years of age or older; or ... if both parties are 55 years of age or older, upon a finding by the district court ... that either party is unable to reproduce. Utah Code 3011(2). This statute thus extends marriage rights to certain couples based on a showing of inability to repro- duce. FN9 Page 27 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (334 of 518) Such a mismatch between the class identified by a challenged law and the characteristic allegedly relevant to the state's interest is precisely the type of imprecision prohibited by heightened scrutiny. See Shaw v. Hunt, 517 U.S. 899, 908, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (The means chosen to accomplish the State's asserted purpose must be specifically and narrowly framed to accomplish that purpose. (quotation and alteration omitted)). Utah's ban on polygamy, for example, is justified by arguments against polygamy. See Utah Const. art. III ([P]olygamous or plural marriages are forever prohibited.); see also Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir.1985) (concluding that the State is justified, by a com- pelling interest, in upholding and enforcing its ban on plural marriage based on its commitment to a system of domestic relations based exclusively upon the practice of monogamy which is inextricably woven into the fabric of our society and the bedrock upon which our culture is built (quotation omitted)). Similarly, barring minors from marriage may be justified based on arguments specific to minors as a class. See Utah Code 3019 (minors may not marry absent parental con- sent); see also Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) ([E]ven where there is an invasion of protected freedoms the power of the state to control the conduct of chil- dren reaches beyond the scope of its authority over adults. (quotation omitted)); Lee v. Gaufin, 867 P.2d 572, 578 (Utah 1993) ([Minors'] legal incapa- city is based on fundamental differences between adults and minors with respect to their physical, in- tellectual, psychological, and judgmental matur- ity.). But appellants fail to advance any argument against same-sex marriage that is based specifically on its alleged intrinsic ills. *23 Instead of explaining why same-sex mar- riage qua same-sex marriage is undesirable, each of the appellants' justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples. Same-sex marriage must be banned, appellants ar- gue, because same-sex couples are not naturally procreative. But the state permits many other types of non-procreative couples to wed. See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) ([W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples ... ? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.). Same-sex marriage cannot be allowed, appellants assert, because it is better for children to be raised by biological parents. Yet adoptive parents, who have the full panoply of rights and duties of biolo- gical parents, are free to marry. See Utah Code 78B6139 (adoptive parents have same rights and duties). As are opposite-sex couples who choose as- sisted reproduction. See 78B15701 to 707 (providing rules for parental rights in cases of as- sisted reproduction); 78B15801 to 809 (providing rules governing gestational agreements). Several recent district court decisions have re- jected nearly identical state attempts to justify same-sex marriage bans based on procreative con- cerns. See Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (Procreative potential is not a marriage pre- requisite.); Latta, 2014 U.S. Dist. LEXIS 66417, at *68 (Idaho does not condition marriage licenses or marital benefits on heterosexual couples' ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate.); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *37 (The pre- requisites for obtaining a marriage license under Michigan law do not include the ability to have children....); De Leon, 2014 U.S. Dist. LEXIS 26236, at *44 (This procreation rationale threatens the legitimacy of marriages involving post- menopausal women, infertile individuals, and indi- viduals who choose to refrain from procreating.); Bostic, 970 F.Supp.2d. at 47879 (The for-the-children rationale also fails because it would threaten the legitimacy of marriages in- volving post-menopausal women, infertile individu- als, and individuals who choose to refrain from pro- Page 28 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (335 of 518) creating.). The Supreme Court has similarly eschewed such means-ends mismatches. For example, in Bernal v. Fainter, 467 U.S. 216, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984), the Court concluded that a Texas statute prohibiting resident aliens from be- coming notaries failed strict scrutiny. Id . at 22728. The state argued that the provision was justified by the state's interest in licensing notaries familiar with state law. Id. at 227. But the Court re- jected the state's attempt to justify a classification based on alienage with an explanation based on knowledge: *24 [I]f the State's concern with ensuring a not- ary's familiarity with state law were truly com- pelling, one would expect the State to give some sort of test actually measuring a person's famili- arity with the law. The State, however, adminis- ters no such test. To become a notary public in Texas, one is merely required to fill out an ap- plication that lists one's name and address and that answers four questions pertaining to one's age, citizenship, residency, and criminal record.... Id. (footnote and quotation omitted). Just as a state cannot justify an alienage classification by ref- erence to a separate characteristic such as familiar- ity with state law, appellants cannot assert procreat- ive potential as a basis to deny marriage rights to same-sex couples. Under strict scrutiny, the state must justify the specific means it has chosen rather than relying on some other characteristic that cor- relates loosely with the actual restriction at issue. Utah law sanctions many marriages that share the characteristicinability to procre- ateostensibly targeted by Amendment 3. The ab- sence of narrow tailoring is often revealed by such under-inclusiveness. In Zablocki, the state attemp- ted to defend its prohibition on marriage by child- support debtors on the ground that the statute prevent[ed] the applicants from incurring new sup- port obligations. 434 U.S. at 390, 98 S.Ct. 673. But the challenged provisions, the Court ex- plained, are grossly underinclusive with respect to this purpose, since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. Id. Similarly, in Eisenstadt, the Court rejected the ar- gument that unmarried individuals might be prohib- ited from using contraceptives based on the view that contraception is immoral. See 405 U.S. at 45254. The Court held that the State could not, consistently with the Equal Protection Clause, out- law distribution to unmarried but not to married persons. In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious. Id. at 454; see also Jimenez v. Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974) (provision of Social Security Act allowing certain illegitimate children benefits under limited circumstances held impermissibly underinclusive in that it conclusively excludes some illegitimates in appellants' subclass who are, in fact, dependent upon their disabled parent (quotation omitted)). [27] A state may not impinge upon the exercise of a fundamental right as to some, but not all, of the individuals who share a characteristic urged to be relevant. The framers of the Constitution knew, and we should not forget today, that there is no more ef- fective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Con- versely, nothing opens the door to arbitrary ac- tion so effectively as to allow those officials to pick and choose only a few to whom they will ap- ply legislation and thus to escape the political ret- ribution that might be visited upon them if larger numbers were affected. *25 Eisenstadt, 405 U.S. at 454, 92 S.Ct. 1029 (quoting Ry. Express Agency v. New York, 336 U.S. 106, 11213, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (Jackson, J., concurring)). Page 29 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (336 of 518) A hypothetical state law restricting the institu- tion of marriage to only those who are able and willing to procreate would plainly raise its own constitutional concerns. See id. at 453 (If the right of privacy means anything, it is the right of the in- dividual, married or single, to be free from unwar- ranted governmental intrusion into matters so fun- damentally affecting a person as the decision whether to bear or beget a child. (emphasis omit- ted)). That question is not before us, and we do not address it. We merely observe that a state may not satisfy the narrow tailoring requirement by pointing to a trait shared by those on both sides of a chal- lenged classification. Appellants suggest that banning all non- procreative individuals from marrying would be im- practicable. But the fact that the implementation of a program capable of providing individualized con- sideration might present administrative challenges does not render constitutional an otherwise prob- lematic system. Gratz, 539 U.S. at 275, 123 S.Ct. 2411 (quotation omitted). And the appellants provide no explanation for Utah Code 3011(2), which specifically allows a subset of non- procreative couples to marry. Such a law is irrecon- cilable with appellants' arguments regarding Utah's interest in marriage and procreation. Among the myriad types of non-procreative couples, only those Utahns who seek to marry a partner of the same sex are categorically excluded from the institution of marriage. Only same-sex couples, appellants claim, need to be excluded to further the state's interest in communicating the link between unassisted biological procreation and mar- riage. As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to appellants' interest in fostering biological reproduction within marriages. [28] The Equal Protection Clause is essen- tially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Extending the bene- fits and protections of a civil society to some but not all similarly situated families violates this crit- ical guarantee. 2 [29] Appellants argue that procreative couples must be channeled into committed relationships in order to promote the State's interests in childbear- ing and optimal childrearing. This argument fails because the prohibition on same-sex marriage has an insufficient causal connection to the State's artic- ulated goals. It is urged upon us that permitting same-sex couples to marry would have far-reaching and drastic consequences for Utah's opposite-sex couples. Appellants contend that the recognition of same-sex marriage would result in a parade of hor- ribles, causing: parents to raise their existing bio- logical children without the other biological parent (emphasis omitted); couples conceiving children without the stability that marriage would otherwise bring; a substantial decline in the public's interest in marriage; adults to [forgo] or severely limit the number of their children based on concerns for their own convenience; and a busy or irresponsible parent to believe it's appropriate to sacrifice his child's welfare to his own needs for independence, free time, etc. *26 [30] In some instances, courts must ac- cord substantial deference to the predictive judg- ments of legislative authorities. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) ( Turner II )(quotation omitted). FN10 Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which com- plete empirical support may be unavailable. Turn- er I, 512 U.S. at 622, 114 S.Ct. 2445. But even un- der more relaxed forms of scrutiny, a challenged classification must find some footing in the realit- ies of the subject addressed by the legislation based on a reasonably conceivable state of facts. Page 30 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (337 of 518) Heller v. Doe ex rel. Doe, 509 U.S. 312, 320, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quotation omitted). FN11 We emphatically agree with the numerous cases decided since Windsor that it is wholly illo- gical to believe that state recognition of the love and commitment between same-sex couples will al- ter the most intimate and personal decisions of op- posite-sex couples. As the district court held, [t]here is no reason to believe that Amendment 3 has any effect on the choices of couples to have or raise children, whether they are opposite-sex couples or same-sex couples. Kitchen, 961 F.Supp.2d at 1212. This was the first of several fed- eral court decisions reaching the same conclusion. See Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 ([A]ny governmental interest in responsible pro- creation is not advanced by denying marriage to gay a[nd] lesbian couples. There is no logical nexus between the interest and the exclusion.); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *40 (Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.); De Leon, 2014 U.S. Dist. LEXIS 26236, at *4243 (Defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether hetero- sexual couples will marry, or how other individuals will raise their families.); Bostic, 970 F.Supp.2d at 478 ([R]ecognizing a gay individual's fundamental right to marry can in no way influence whether oth- er individuals will marry, or how other individuals will raise families.); Bishop, 962 F.Supp.2d at 1291 (Marriage is incentivized for naturally pro- creative couples to precisely the same extent re- gardless of whether same-sex couples (or other non-procreative couples) are included.). Appellants liken the recognition of same-sex marriage to another change in marriage law, ar- guing that there is a compelling parallel between the unintended consequences of no-fault divorce, which harmed children by weakening marriage and fatherhood, and the harms that will likely result from permitting same-sex couples to marry. We cannot accept appellants' claim that allowing same- sex couples to marry is analogous to a law that per- mits married couples to divorce. The former causes an increase in the number of married individuals, whereas the latter decreases the number of mar- riages in a state. See Wolf, 2014 U.S. Dist. LEXIS 77125, at *117 ([T]he no-fault divorce rules that defendants cite actually undermine their argument by showing that [the state] already supports an adult-centric notion of marriage to some extent by allowing easy divorce even when the couple has children. (emphasis omitted)). *27 Setting aside the implausibility of the com- parison, we observe that Utah has adopted precisely the no-fault divorce regime that appellants decry in their briefing. See Thronson v. Thronson, 810 P.2d 428, 431 n. 3 (Utah Ct.App.1991) (Utah added irreconcilable differences' to its list of nine fault- based grounds [for divorce] in 1987.); Haumont v. Haumont, 793 P.2d 421, 427 (Utah Ct.App.1990) (irreconcilable differences subsection is intended to be a no-fault provision); see also Utah Code 3031(3)(h) (current location of irreconcilable dif- ferences provision). Utah's adoption of one provi- sion that it considers problematic with respect to the communicative function of marriage (no-fault divorce), but not another (same-sex marriage), un- dermines its claim that Amendment 3 is narrowly tailored to its desired ends. Through its no-fault di- vorce statute, Utah allows a spousethe bedrock component of the marital unitto leave his family whenever he wants and for whatever reason moves him. It is difficult to imagine how the State's refusal to recognize same-sex marriage undercuts in any meaningful way a state message of support for mar- ital constancy given its adoption of a divorce policy that conveys a message of indifference to marital longevity. A state's interest in developing and sustaining committed relationships between childbearing couples is simply not connected to its recognition of same-sex marriages. Regardless of whether some Page 31 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (338 of 518) individuals are denied the right to choose their spouse, the same set of duties, responsibilities, and benefits set forth under Utah law apply to those nat- urally procreative pairings touted by appellants. We cannot imagine a scenario under which recognizing same-sex marriages would affect the decision of a member of an opposite-sex couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a child. We agree with the district court that such decisions, among the most intimate and personal ... a person may make in a lifetime, choices central to personal dignity and autonomy, Casey, 505 U.S. at 851, 112 S.Ct. 2791, are unrelated to the government's treatment of same-sex marriage. See Kitchen, 961 F.Supp.2d at 1212. To the extent that they are related, the rela- tion exists because the State of Utah has chosen to burden the ability of one class of citizens to make such intimate and personal choices. See Utah Code 78B6117(3) (prohibiting adoption by a person who is cohabitating in a relationship that is not a legally valid and binding marriage under the laws of the state and thus forcing same-sex couples to choose between adoption and marriage). 3 [31] Appellants also argue that Utah's ban on same-sex marriage is justified by gendered parent- ing preferences. They contend that even for famil- ies that are not biologically connected, the state has an interest in limiting marriage to opposite-sex couples because men and women parent children differently. *28 But a prohibition on same-sex marriage is not narrowly tailored toward the goal of encour- aging gendered parenting styles. The state does not restrict the right to marry or its recognition of mar- riage based on compliance with any set of parenting roles, or even parenting quality. See Latta, 2014 U.S. Dist. LEXIS 66417, at *68 (Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal par- ents.); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *37 (The prerequisites for obtaining a marriage li- cense under Michigan law do not include ... a re- quirement to raise [children] in any particular fam- ily structure, or the prospect of achieving certain outcomes' for children.); Bishop, 962 F.Supp.2d at 1295 (With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreat- ive, parenting, or fidelity requirements.). Instead, every same-sex couple, regardless of parenting style, is barred from marriage and every opposite- sex couple, irrespective of parenting style, is per- mitted to marry. The state's child custody regime also belies ad- herence to a rigidly gendered view of parents' abil- ities. See 30310(1)(a) (In determining any form of custody, including a change in custody, the court shall consider the best interests of the child without preference for either the mother or father solely because of the biological sex of the par- ent....). As with appellants' asserted procreation ra- tionale, we are offered no coherent explanation for the state's decision to impose disabilities upon only one subclass of those sharing a claimed deficiency. The Supreme Court has previously rejected state attempts to classify parents with such a broad brush. In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court considered the validity of a state law that made children of un- wed parents wards of the state upon death of the mother. Id. at 646. The state defended this provi- sion by asserting that unmarried fathers can reas- onably be presumed to be unqualified to raise their children. Id. at 653. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children. Id. at 654. Just as the state law at issue in Stanley needlessly risk[ed] running roughshod over the important interests of both parent and child, id. at 657, Amendment 3 cannot be justified by the impermissibly overbroad assumption that any opposite-sex couple is prefer- able to any same-sex couple. Cf. Skinner, 316 U.S. at 545, 62 S.Ct. 1110 (A law which condemns, without hearing, all the individuals of a class to so Page 32 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (339 of 518) harsh a measure as the present because some or even many merit condemnation, is lacking in the first principles of due process.). Appellants have retreated from any categorical conclusions regarding the quality of same-sex par- enting. Although they presented to the district court voluminous scholarship addressing various parent- ing issues, they now take the position that the social science is unsettled. See Rule 28(j) Letter at 2, No. 134178 (10th Cir., filed Apr. 9, 2014) (acknowledging that appellants' main scientific au- thority on this issue cannot be viewed as conclus- ively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrange- ments). At oral argument, counsel for appellants stated that the bottom line regarding the con- sequences of same-sex parenting is that the sci- ence is inconclusive. *29 [32] Although we assume that the State's asserted interest in biological parenting is compel- ling, this assumption does not require us to accept appellants' related arguments on faith. We cannot embrace the contention that children raised by op- posite-sex parents fare better than children raised by same-sex parentsto the extent appellants con- tinue to press itin light of their representations to this court. Appellants' only reasoning in this regard is that there might be advantages in one parenting arrangement that are lacking in the other. On strict scrutiny, an argument based only on pure specula- tion and conjecture cannot carry the day. See Wis- consin v. Yoder, 406 U.S. 205, 224, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (striking down state action on strict scrutiny where the argument for the interest was highly speculative and had no specific evid- ence to support it). Appellants' tepid defense of their parenting theory further highlights the loose- ness of the fit between the State's chosen means and appellants' asserted end. Against the State's claim of uncertainty we must weigh the harm Amendment 3 currently works against the children of same-sex couples. See Obergefell, 962 F.Supp.2d at 995 (same-sex mar- riage bans harm[ ] the children of same-sex couples who are denied the protection and stability of having parents who are legally married). If ap- pellants cannot tell us with any degree of confid- ence that they believe opposite-sex parenting pro- duces better outcomes on the wholeand they evidently cannotthey fail to justify this palpable harm that the Supreme Court has unequivocally condemned. The Windsor majority, stressing the same detrimental impacts of DOMA, explained that the refusal to recognize same-sex marriages brings financial harm to children of same-sex couples and makes it even more difficult for the children [of same-sex couples] to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. 133 S.Ct. at 2694, 2695. Windsor thus indicates that same-sex marriage restrictions communicate to children the message that same-sex parents are less deserving of family recognition than other parents. See id. at 2696 (DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.). Appel- lants rely heavily on their predictions that Amend- ment 3 will encourage adults to make various de- cisions that benefit society. But regardless of the signals the law sends to adults, Amendment 3, like DOMA, conveys a harmful message to the children of same-sex couples. These collateral consequences further suggest that the fit between the means and the end is insufficient to survive strict scrutiny. See Latta, 2014 U.S. Dist. LEXIS 66417, at *74 (same-sex marriage bans are dramatically underin- clusive because they deny resources to children whose parents happen to be homosexual); De Le- on, 2014 U.S. Dist. LEXIS 26236, at *42 ([F]ar from encouraging a stable environment for chil- drearing, [same sex marriage bans] den [y] children of same-sex parents the protections and stability they would enjoy if their parents could marry.); Bostic, 970 F.Supp.2d at 478 ([N]eedlessly stig- Page 33 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (340 of 518) matizing and humiliating children who are being raised by the loving couples targeted by Virginia's Marriage Laws betrays [the state's interest in child welfare].). FN12 4 *30 [33] Appellants' fourth and final justifica- tion for Amendment 3, accommodating religious freedom and reducing the potential for civic strife, fails for reasons independent of the foregoing. Ap- pellants contend that a prohibition on same-sex marriage is essential to preserving social harmony in the State and that allowing same-sex couples to marry would create the potential for religion-re- lated strife. Even assuming that appellants are correct in predicting that some substantial degree of discord will follow state recognition of same-sex marriage, the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights. See, e.g., Palmer v. Thompson, 403 U.S. 217, 226, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971) (Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility....). In Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963), for example, the Court rejected a city's claim that community confusion and turmoil per- mitted it to delay desegregation of its public parks. Id. at 535. And in Cleburne, the Court held that negative attitudes toward the class at issue (intellectually impaired individuals) are not per- missible bases for treating a home for the mentally retarded differently. 473 U.S. at 448, 105 S.Ct. 3249. It is plain that the electorate as a whole, whether by referendum or otherwise, could not or- der city action violative of the Equal Protection Clause, and the city may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic. Id. (quotation omitted). Appellants acknowledge that a state may not invoke concerns about religious freedom or reli- gion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution. But they argue that the social and religious strife ar- gument qualifies as legitimate because a funda- mental right is not at issue in this case. Because we have rejected appellants' contention on this point, their fourth justification necessarily fails. We also emphasize, as did the district court, that today's decision relates solely to civil marriage. See Kitchen, 961 F.Supp.2d at 1214 ([T]he court notes that its decision does not mandate any change for religious institutions, which may continue to ex- press their own moral viewpoints and define their own traditions about marriage.). Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sac- raments and traditions as they see fit. We respect the views advanced by members of various reli- gious communities and their discussions of the theological history of marriage. And we continue to recognize the right of the various religions to define marriage according to their moral, historical, and ethical precepts. Our opinion does not intrude into that domain or the exercise of religious principles in this arena. The right of an officiant to perform or decline to perform a religious ceremony is unaf- fected by today's ruling. See Griego v. Oliver, 316 P.3d 865, 871 (N.M.2013) (Our holding [that same-sex marriage is required by the state constitu- tion] will not interfere with the religious freedom of religious organizations or clergy because (1) no re- ligious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious be- liefs.); Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 957 A.2d 407, 475 (Conn.2008) (Religious freedom will not be jeopardized by the marriage of same sex couples because religious or- ganizations that oppose same sex marriage as irre- concilable with their beliefs will not be required to perform same sex marriages or otherwise to con- done same sex marriage or relations.); In re Mar- riage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at Page 34 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (341 of 518) 45152 ([A]ffording same-sex couples the oppor- tunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no reli- gion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.). FN13 C *31 Appellants raise a number of prudential concerns in addition to the four legal justifications discussed above. They stress the value of democrat- ic decision-making and the benefits of federalism in allowing states to serve as laboratories for the rules concerning marriage. As a matter of policy, it might well be preferable to allow the national debate on same-sex marriage to play out through legislative and democratic channels. Some will no doubt view today's decision as robbing the winners of an hon- est victory, and the losers of the peace that comes from a fair defeat. Windsor, 133 S.Ct. at 2711 (Scalia, J., dissenting). [34][35] But the judiciary is not empowered to pick and choose the timing of its decisions. It is a judge's duty to decide all cases within his jurisdic- tion that are brought before him, including contro- versial cases that arouse the most intense feelings in the litigants. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of funda- mental rights are not matters for opinion polls or the ballot box. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other 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, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Similarly, the experimental value of federalism cannot overcome plaintiffs' rights to due process and equal protection. Despite Windsor's emphasis on state authority over marriage, the Court re- peatedly tempered its pronouncements with the caveat that [s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons. 133 S.Ct. at 2691; see also id. at 2692 ([T]he incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to consti- tutional guarantees, from one State to the next.); id. (The States' interest in defining and regulating the marital relation, subject to constitutional guar- antees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.). Our federalist structure is designed to secure[ ] to citizens the liberties that derive from the diffusion of sovereign power rather than to limit fundamental freedoms. New York v. United States, 505 U.S. 144, 181, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (quotation omitted). Appellants also suggest that today's ruling will place courts on a slippery slope towards recogniz- ing other forms of currently prohibited marriages. Although we have no occasion to weigh in on the validity of laws not challenged in this case, same- sex marriage prohibitions differ in at least one key respect from the types of marriages the appellants identify: Unlike polygamous or incestuous mar- riages, the Supreme Court has explicitly extended constitutional protection to intimate same-sex rela- tionships, see Lawrence, 539 U.S. at 567, 123 S.Ct. 2472, and to the public manifestations of those rela- tionships, Windsor, 133 S.Ct. at 2695. Our holding that plaintiffs seek to exercise a fundamental right turns in large measure on this jurisprudential found- ation that does not exist as to the hypothetical chal- lenges identified by appellants. *32 Another slippery-slope argument brought forward by appellants is that federal constitutional Page 35 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (342 of 518) protection for same-sex marriage might lead to the wholesale privatization of marriage through the enactment of a civil-union regime for all couples, with religious and other organizations being free to offer the title of marriage as they see fit. But they provide no authority for the proposition that an unconstitutional restriction on access to an institu- tion can be saved by the possibility that its priv- ilegesor the name attached to themcould be withdrawn from everyone. If a state were entitled to defend the deprivation of fundamental rights in this way, it might always make the same threat. Lastly, appellants express concern that a ruling in plaintiffs' favor will unnecessarily brand those who oppose same-sex marriage as intolerant. We in no way endorse such a view and actively discour- age any such reading of today's opinion. Although a majority's traditional[ ] view[ of] a particular prac- tice as immoral is not a sufficient reason for up- holding a law prohibiting the practice, Lawrence, 539 U.S. at 577, 123 S.Ct. 2472 (quoting Bowers, 478 U.S. at 216, 106 S.Ct. 2841 (Stevens, J., dis- senting)), for many individuals, religious precepts concerning intimate choices constitute profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus de- termine the course of their lives, id. at 571. Courts do not sit in judgment of the hearts and minds of the citizenry. Our conclusion that plaintiffs possess a fundamental right to marry and to have their mar- riages recognized in no way impugns the integrity or the good-faith beliefs of those who supported Amendment 3. See Wolf, 2014 U.S. Dist. LEXIS 77125, at *45 (In reaching [the] decision [that a same-sex marriage ban is unconstitutional, there is no need] to disparage the legislators and citizens who voted in good conscience for the marriage amendment.). V In summary, we hold that under the Due Pro- cess and Equal Protection Clauses of the United States Constitution, those who wish to marry a per- son of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. We AF- FIRM the judgment of the district court. In consideration of the Supreme Court's de- cision to stay the district court's injunction pending the appeal to our circuit, we conclude it is appropri- ate to STAY our mandate pending the disposition of any subsequently filed petition for writ of certi- orari. FN14 See Fed. R.App. P. 41(d)(2) (allowing circuit courts to stay their mandates pending the completion of certiorari proceedings); Massachu- setts v. U.S. Dep't of Health & Human Servs., 682 F.3d at 17 (declaring DOMA 3 unconstitutional and staying the mandate in the same opinion); Nat- ural Res. Def. Council, Inc. v. Winter, 518 F.3d 704, 705 (9th Cir.2008) (issuing a stay sua sponte); see also Latta v. Otter, No. 1435420, Order, at 2 (9th Cir. May 20, 2014) (unpublished) (relying on the Supreme Court's Kitchen order to stay a district court injunction against a same-sex marriage ban); DeBoer v. Snyder, No. 141341, Order, at 1 (6th Cir. Mar. 25, 2014) (unpublished) (same). FN15 *33 It is so ordered. KELLY, Circuit Judge, concurring in part and dis- senting in part. I concur with the court's result that Plaintiffs have standing to challenge the provisions at issue, FN1 that the Salt Lake County Clerk, Governor, and Attorney General were proper Defendants, and that the appeal may proceed despite the absence of the Salt Lake County Clerk. I disagree with this court's conclusions that (1) Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), need not be followed and that (2) the liberty guaranteed by the Fourteenth Amendment includes a funda- mental right which requires Utah to extend mar- riage to same-gender couples and recognize same- gender marriages from other states. Because I con- clude that there is no such fundamental right, it is unnecessary to consider whether Utah's justifica- tions for retaining its repeatedly-enacted concept of Page 36 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (343 of 518) marriage pass heightened scrutiny. In my view, the provisions should be analyzed under traditional equal protection analysis and upheld as rationally related to (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area. Same-sex marriage presents a highly emotion- al and important question of public policybut not a difficult question of constitutional law, at least when it comes to the States' right to enact laws pre- serving or altering the traditional composition of marriage. See United States v. Windsor, U.S. , , 133 S.Ct. 2675, 2714, 186 L.Ed.2d 808 (2013) (Alito, J., dissenting). The Constitution is si- lent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. See Windsor, 133 S.Ct. at 269192. And while the Court has re- cognized a fundamental right to marriage, every de- cision vindicating that right has involved two per- sons of the opposite gender. Indeed, the Court has been less than solicitious of plural marriages or polygamy. If the States are the laboratories of democracy, requiring every state to recognize same-gender uni- onscontrary to the views of its electorate and rep- resentativesturns the notion of a limited national government on its head. See Bond v. United States, U.S. , , 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269 (2011) (explaining that federalism al- lows for state responses instead of relying upon the eventuality of a federal policy). Marriage is an im- portant social institution commonly understood to protect this and future generations. That states sin- cerely differ about the best way to do this (including whether to extend marriage to same- gender couples) is inevitable. See id.; Utah Code. 3011, 2. And given the recent advent of same-gender marriage, Windsor, 133 S.Ct. at 2689, it is hardly remarkable that a state might codify what was once implicit. For the following reasons, I respectfully dissent. A. Baker v. Nelson The starting point for a claim that same-gender marriage is required by the Constitution must be the Constitution. Because the Constitution does not speak to the issue of same-gender marriageor marriage at allthe next step is to review the Su- preme Court's decisions on the issue. And on the question presented here, the Supreme Court has already spoken. In Baker v. Nelson, the Court dis- missed an appeal asking whether the Constitution forces a state to recognize same-gender marriage for want of a substantial federal question. 409 U.S. 810 (1972). That dismissal should foreclose the Plaintiffs' claims, at least in this court. *34 The petitioners in Baker argued that Min- nesota's marriage scheme violated due process and equal protection. Jurisdictional Statement, No. 711027, at 319 (Oct. Term 1972). The Minnesota Supreme Court unambiguously rejected the notion that same-gender marriage was a fundamental right, interpreting Loving v. Virginia as resting upon the Constitution's prohibition of race discrimination. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (Minn.1971). Absent irrational or invidious discrimination, a theoretically imperfect marriage classification does not offend equal protection or due process under the Fourteenth Amendment. Id. The import of Baker to this case is clear: neither due process nor equal protection bar states from de- fining marriage as between one man and one wo- man, or require states to extend marriage to same- gender couples. A summary dismissal is a merits determination and a lower federal court should not come to an op- posite conclusion on the issues presented. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam). The district court relied upon a statement in Hicks v. Miranda that a question remains unsubstantial unless doctrinal de- velopments may suggest otherwise. 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). On this point, Miranda held that a summary dismissal could not be disregarded. Id. at 34445. Were there any doubt, the doctrinal developments exception was Page 37 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (344 of 518) followed by a statement that summary decisions are binding on lower courts until the Court notifies oth- erwise. Id. The rule is clear: if a Supreme Court case is directly on point, a lower federal court should rely on it so the Supreme Court may exercise the prerogative of overruling its own decisions. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). The Supreme Court is certainly free to re-examine its precedents, but it discourages lower courts from concluding it has overruled earlier pre- cedent by implication. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (reaffirming Rodriguez de Quijas ). The majority construes the unequivocal statement in Rodriguez de Quijas (and presumably Agostini ) as inapplic- able because it appeared in a merits disposition and accordingly did not overrule the doctrinal devel- opments rule as to summary dispositions. But that is just another way of stating that a summary dis- position is not a merits disposition, which is pat- ently incorrect. Though the Supreme Court may not accord Baker the same deference as an opinion after briefing and argument, it is nonetheless pre- cedential for this court. Caban v. Mohammed, 441 U.S. 380, 390 n. 9, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). Summary dismissals are merits rulings as to those questions raised in the jurisdictional state- ment. Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 476 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979). Plaintiffs argue that Baker did not address the precise issues here because [t]he judgment af- firmed in Baker addressed whether same-sex couples were denied equal protection and due pro- cess by Minnesota's marriage statutea measure that did not indicate on its face whether same-sex couples could marry and that had not been enacted for the express purpose of excluding same-sex couples from marriage. Aplee. Br. 23. They fur- ther argue that Utah's non-recognition of Plaintiffs Archer and Call's Iowa marriage distinguishes this case from Baker. Neither reason is persuasive. The fact remains that the Minnesota Supreme Court in- terpreted the state statute (at the time) to not require same-gender marriage and decided largely the same federal constitutional questions presented here. To the extent there is no right to same-gender marriage emanating from the Fourteenth Amendment, a state should not be compelled to recognize it. See Utah Code 3014(1) (declining to recognize foreign same-gender marriages). *35 Regardless, subsequent doctrinal develop- ments have not undermined the Court's traditional deference to the States in the field of domestic rela- tions. To be sure, the district court concluded other- wise based upon the following Supreme Court de- velopments: (1) gender becoming a quasi-suspect class, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), (2) invalidation of a state law repealing and barring sexual-orientation protection, Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), (3) invalidation of a statute that pro- scribed same-gender sexual relations insofar as private conduct among consenting adults, Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), (4) declaring the Defense of Marriage Act's (DOMA) definition of marriage and spouse to exclude same-gender marriages as violative of Fifth Amendment due process and equal protection principles, United States v. Wind- sor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). Kitchen v. Herbert, 961 F.Supp.2d 1181, 119495 (D.Utah 2013). This court relies on Lawrence and Windsor as justification for not de- ferring to Baker. As discussed below, none of these developments can override our obligation to follow (rather than lead) on the issue of whether a state is required to extend marriage to same-gender couples. At best, the developments relied upon are ambiguous and certainly do not compel the conclu- sion that the Supreme Court will interpret the Four- teenth Amendment to require every state to extend marriage to same-gender couples, regardless of Page 38 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (345 of 518) contrary state law. See Massachusetts. v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 8 (1st Cir.2012) (rejecting the idea that Romer or Lawrence require states to permit same-gender mar- riage and that the Supreme Court has repudiated Baker ). Because I have not persuaded the panel, I pro- ceed to analyze the remaining issues. B. Equal ProtectionGender Discrimination Plaintiffs argue that defining marriage to ex- clude same-gender unions is based upon gender ste- reotyping where the law presumed women to be legally, socially, and financially dependent upon men. Aplee. Br. at 5563. But this case involves no disparate treatment based upon gender that might invite intermediate scrutiny. See Craig, 429 U.S. at 197, 97 S.Ct. 451 (such scrutiny requires that the law be substantially related to furthering important governmental interests). Utah's constitu- tional and statutory provisions, Utah Const. art. I, 29 and Utah Code 3012(5), 3014.1, enacted in 1977 and 2004, simply define marriage as the legal union of a man and a woman and do not re- cognize any other domestic union, i.e., same-gender marriage. They apply to same-gender male couples and same-gender female couples alike. Disparate treatment of men and women as a class is an essential element of an equal protection, gender discrimination claim. See United States v. Virginia, 518 U.S. 515, 51920, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (women excluded from at- tending VMI); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 71923, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (men excluded from attending nursing school); Craig, 429 U.S. at 19192, 97 S.Ct. 451 (women allowed to buy beer at younger age than men); Frontiero, 411 U.S. at 67879 (women seek- ing military benefits required to demonstrate the spouse's economic dependency, but not requiring the same of men); Reed v. Reed, 404 U.S. 7273 (1971) (automatic preference for men over women for estate administration). Plaintiffs cannot show that either gender as a class is disadvantaged by the Utah provisions defining marriage. C. Equal ProtectionSexual Orientation *36 Plaintiffs argue that defining marriage to exclude same-gender unions is a form of sexual ori- entation discrimination triggering heightened scru- tiny. Aplee. Br. at 4855. The Supreme Court has yet to decide the level of scrutiny attendant to clas- sifications based upon sexual orientation, see Wind- sor, 133 S.Ct. at 268384, but this court has rejec- ted heightened scrutiny, see PriceCornelison v. Brooks, 524 F.3d 1103, 1113 n. 9 (10th Cir.2008); Walmer v. U.S. Dep't of Defense, 52 F.3d 851, 854 (10th Cir.1995); Jantz v. Muci, 976 F.2d 623, 630 (10th Cir.1992). Although Plaintiffs argue that our precedent does not justify such a position, one pan- el of this court may not overrule another absent su- perseding en banc review or a Supreme Court de- cision invalidating our precedent. Rezaq v. Nalley, 677 F.3d 1001, 1012 n. 5 (10th Cir.2012). Neither has occurred here. D. Due ProcessFundamental Right The Plaintiffs contend that they are not relying upon a fundamental right to same-gender marriage, but instead a fundamental right to marriage simpli- citer. Aplee. Br. at 16, 3339. They contend that freedom to marry is self-defining and without refer- ence to those who assert it or have been excluded from it. Id. at 34. Of course, the difficulty with this is that marriage does not exist in a vacuum; it is a public institution, and states have the right to regu- late it. That right necessarily encompasses the right to limit marriage and decline to recognize mar- riages which would be prohibited; were the rule as the Plaintiffs contend, that marriage is a freestand- ing right, Utah's prohibition on bigamy would be an invalid restriction, see Utah Const. art. III; see also Utah Code 3012(1) (bigamy), 3014(1) (non-recognition of such marriages solemnized elsewhere), 767101 (criminalizing bigamy), 767101.5 (criminalizing child bigamy). That pro- position has been soundly rejected. Reynolds, 98 U.S. at 16667; Bronson v. Swensen, 500 F.3d 1099, 11051106 (10th Cir.2007); see also Paris Page 39 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (346 of 518) Adult Theatre I v. Slaton, 413 U.S. 49, 68 n. 15, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). Likewise, were marriage a freestanding right without reference to the parties, Utah would be hard-pressed to prohibit marriages for minors under 15 and impose condi- tions for other minors. Utah Code 3012(3), 3019. As noted, the Court has recognized a funda- mental right to marriage protected by substantive due process. Turner, 482 U.S. at 94, 107 S.Ct. 2254; Zablocki, 434 U.S. at 38486, 98 S.Ct. 673; Loving, 388 U.S. at 12. As such, restrictions on the right are subject to strict scrutiny: they must be nar- rowly tailored to further compelling state interests. Zablocki, 434 U.S. at 388, 98 S.Ct. 673; Loving, 388 U.S. at 1112. But it is a stretch to cast those cases in support of a fundamental right to same- gender marriage. Here's why. First, same-gender marriage is a very recent phenomenon; for centuries marriage has been universally understood to require two per- sons of opposite gender. Windsor, 133 S.Ct. at 2689. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term marriage as used in those cases had any meaning other than what was com- monly understood for centuries. Courts do not de- cide what is not before them. That the Court did not refer to a right to interracial marriage, or a right to inmate marriage cannot obscure what was de- cided; the Supreme Court announced a right with objective meaning and contours. Third, given the ephemeral nature of substantive due process, recog- nition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue. Washington v. Glucksberg, 521 U.S. 702, 72021, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Thus, contrary to Plaintiffs' contention, Aplee. Br. at 34 n.5, it is entirely appropriate for the State to charac- terize the right sought as one of same-gender mar- riage and focus attention on its recent develop- ment. Perhaps someday same-gender marriage will become part of this country's history and tradition, but that is not a choice this court should make. *37 Much of this court's opinion is dedicated to finding otherwise by separating marriage from pro- creation and expounding on how other substantive due process and privacy concepts, including per- sonal autonomy, dignity, family relationships, re- productive rights, and the like, are the antecedents and complements of same-gender marriage. But we should be reluctant to announce a fundamental right by implication. Not only is that beyond our power, it is completely arbitrary and impractical; as in this case, a state should be allowed to adopt change if desired and implement it. As these proceedings demonstrate, the State has a much better handle on what statutory and administrative provisions are in- volved, and what is necessary to implement change, than we do. Nothing in the Court's trilogy of cases, Romer, Lawrence, or Windsor, points to a different result. Though the cases may afford constitutional protec- tion for certain moral and sexual choices of same gender couples, Windsor, 133 S.Ct. at 2694, they simply have not created a fundamental right to same-gender marriage, let alone heightened scru- tiny for any provision which may be implicated. Romer is an equal protection case invalidating a Colorado constitutional provision which effected a [s]weeping and comprehensive change in the law by permanently withdrawing and barring anti- discrimination protections against this particular group. 517 U.S. at 627, 116 S.Ct. 1620; see PriceCornelison, 524 F.3d at 1113 n. 9 (noting that Romer used a rational basis test). Lawrence also is an equal protection case that invalidated a Texas statute proscribing only same-gender sexual contact, no matter whether private and consensual, because the provision furthered no legitimate state interest. 539 U.S. at 578, 123 S.Ct. 2472; id. at 58183 (O'Connor, J., concurring); See gmiller v. LaVerkin City, 528 F.3d 762, 771 (10th Cir.2008) (noting that Lawrence did not announce a funda- Page 40 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (347 of 518) mental right to private, consensual sexual activity as it was decided on rational basis review). Plaintiffs suggest that Lawrence should frame the inquiry as a right to marry rather than a right to same-gender marriage. To be sure, the Court recog- nized that criminalizing private, consensual conduct for one group interfered with personal autonomy, but the Court expressly disclaimed entering the same-gender union fray. See Lawrence, 539 U.S. at 578, 123 S.Ct. 2472; id. at 585 (O'Connor, J., con- curring) (noting that preserving the traditional in- stitution of marriage would be a legitimate state interest beyond moral disapproval). Moreover, as discussed above, numerous restrictions are already imposed on marriage. It cannot be evaluated devoid of context. While Windsor is the only Supreme Court case concerning same-gender marriage, it simply did not decide the issue of state prohibitions on same- gender marriages; instead, it concentrated on same- gender marriages already authorized by state law. Windsor, 133 S.Ct. at 2696. It certainly did not re- quire every state to extend marriage to same-gender couples, regardless of the contrary views of the electorate and their representatives. After Windsor, a state remains free (consistent with federal law and comity) to not recognize such marriages. 28 U.S.C. 1738C. Windsor protected valid same-gender, state law marriages based on federalism concerns, as well as Fifth Amendment due process and im- plied equal protection concerns. Id. at 2695. As in Lawrence, the Court employed an equal protection construct in determining that no legitimate pur- pose could justify DOMA's unequal treatment of same-gender marriages already authorized by state law. Id. at 2693, 2696. Given an unusual federal in- trusion into state authority, the Court analyzed the nature, purpose, and effect of the federal law, alert for discrimination of unusual character. Id. at 2693. *38 Windsor did not create a fundamental right to same-gender marriage. To the contrary, Windsor recognized the authority of the States to redefine marriage and stressed the need for popular con- sensus in making such change. Id. at 2692. Consist- ent with federalism, state policies concerning do- mestic relations and marriage will vary. Id. at 2691. Traditionally, the federal government has deferred to those policies, including the definition of mar- riage. Id. at 2691, 2693. Courts should follow suit. Plaintiffs argue that Windsor dictates the out- come here because we need only look to the pur- pose and effect of the Utah constitutional amend- ment defining marriage and not recognizing any other union. But this case does not involve interfer- ence with traditional state prerogatives so it is ques- tionable whether such a directive from Windsor ap- plies. If it does, Plaintiffs draw only one conclu- sion: the provision is designed to impose inequality on same-gender couples and their children. Aplt. Br. at 3948. But DOMA is an outlier. It was unique in not deferring to the States' power to define marriage and instead interfering with the legal effect (or equal dignity) of those marriages. In this case, Utah seeks to preserve the status quo and the right of the people to decide this issue. Not surprisingly, the district court resisted a finding of animus. Kitchen, 961 F.Supp.2d at 1209. That was undoubtedly correct. The Plaintiffs' one- sided formulation ignores the obvious and real con- cern that this issue generates both on the merits and procedurally. Nearly everyone is or has been af- fected from birth by the presence or absence of marriage. In any event, this record hardly reflects a bare ... desire to harm a politically unpopular group. U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 53435, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In addition to statements for and against, the Utah legislature's impartial analysis discussed federal constitutional implications. Aplt.App. at 3448. The power of judicial review is strong medicine, and we should be reluctant to invalidate state con- stitutional or legislative enactments based upon motive. Rather, it is only an evident and inevitable unconstitutional effect that warrants such treat- ment. United States v. O'Brien, 391 U.S. 367, 385, Page 41 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (348 of 518) 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). E. Equal ProtectionRational Basis Plaintiffs contend and the district court so found that the provisions cannot be sustained under rational basis review. Kitchen, 961 F.Supp.2d at 121015. The State offered several rationales in- cluding (1) encouraging responsible procreation given the unique ability of opposite-gender couples to conceive, (2) effective parenting to benefit the offspring, and (3) proceeding with caution insofar as altering and expanding the definition of mar- riage. The district court rejected these rationales based on a lack of evidence and/or a lack of a ra- tional connection between excluding same-gender couples from marriage and the asserted justifica- tion. FN2 *39 Equal protection is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Given the provisions in this case, we should look at the definition of marriage and the exclusion of same-gender couples and inquire whether the classification ... is rationally related to a legitimate state interest. Id. at 440. To the extent the district court thought that the State had any obligation to produce evidence, surely it was incorrect. Vance v. Bradley, 440 U.S. 93, 11011, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). Though the State is not precluded from relying upon evidence, rational basis analysis is a legal in- quiry. See Id. at 111112; see also United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 17577, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). The district court seems to have misunderstood the essence of rational basis review: extreme deference, the hall- mark of judicial restraint. United States v. Alvarez, U.S. , , 132 S.Ct. 2537, 2552, 183 L.Ed.2d 574 (2012) (Breyer, J., concurring); Fed. Commc'n Comm'n v. Beach Commc'ns, 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). The State could rely upon any plausible reason and contend that the classification might arguably ad- vance that reason. Armour v. City of Indianapolis, U.S. , , 132 S.Ct. 2073, 208081, 182 L.Ed.2d 998 (2012). Plaintiffs had the burden of refuting all plausible reasons for the challenged amendment and statutes. See Vance, 440 U.S. at 111, 99 S.Ct. 939. Whether a reason actually motivated the elect- orate or the legislature is irrelevant; neither is re- quired to state its reason for a choice. See Fritz, 449 U.S. at 179, 101 S.Ct. 453. Legislative choices in- volve line-drawing, and the fact that such line- drawing may result in some inequity is not determ- inative. See Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Accordingly, an enactment may be over-inclusive and/or under- inclusive yet still have a rational basis. The fact that the classification could be improved or is ill- advised is not enough to invalidate it; the political process is responsible for remedying perceived problems. City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249 (The Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.). Judged against these standards, Utah should prevail on a rational basis analysis. Plaintiffs have not overcome their heavy burden of demonstrat- ing that the provisions are arbitrary and irration- al, that no electorate or legislature could reason- ably believe the underlying legislative facts to be true. See Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463, 465, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). It is biologically undeniable that oppos- ite-gender marriage has a procreative potential that same-gender marriage lacks. The inherent differ- ences between the biological sexes are permissible legislative considerations, and indeed distinguish gender from those classifications that warrant strict scrutiny. See United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). In Nguyen v. I.N.S., for example, the Court upheld a legislative scheme imposing more onerous burdens on unwed fathers than unwed mothers to prove the citizenship of their foreign-born children because of Page 42 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (349 of 518) the opportunity for mothers to develop a relation- ship with their child at childbirth. 533 U.S. 53, 5659, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). The Court recognized important government in- terests in ensuring both a biological relationship between the citizen and the child and an opportun- ity to develop a meaningful parent-child relation- ship. Id. at 6265. The Court stressed the govern- ment's critically important interest in ensuring some opportunity for a tie between citizen father and foreign born child as a proxy for the opportun- ity for connection childbirth affords the mother. Id. at 66. Nguyen suggests that when it comes to pro- creation, gender can be considered and that biolo- gical relationships are significant interests. *40 Nor is the State precluded from consider- ing procreation in regulating marriage. Merely be- cause the Court has discussed marriage as a funda- mental right apart from procreation or other rights including contraception, child rearing, and educa- tion does not suggest that the link between marriage and procreation may not be considered when the State regulates marriage. The Court's listing of vari- ous rights from time to time is intended to be illus- trative of cases upholding a right of privacy, ensur- ing that certain personal decisions might be made without unjustified government interference. Carey v. Population Servs. Int'l, 431 U.S. 678, 68485, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). In- deed, it is difficult to separate marriage from pro- creation considering the State's interest in regulat- ing both. Even in Turner, where the Court dis- cussed marriage as a fundamental right for inmates based upon other advantages of marriage, the Court explained that most inmate marriages are formed in the expectation that they will ultimately be fully consummated and mentioned the advantage of legitimation of children born out of wedlock. 482 U.S. at 96, 107 S.Ct. 2254. It goes without saying that there are procreative and personal dimensions of marriage, but a state may place greater emphasis on one or the other as it regulates marriage without violating the Fourteenth Amendment. FN3 It is also undeniable that the State has an im- portant interest in ensuring the well-being of result- ing offspring, be they planned or unplanned. To that end, the State can offer marriage and its bene- fits to encourage unmarried parents to marry and married parents to remain so. Thus, the State could seek to limit the marriage benefit to opposite- gender couples completely apart from history and tradition. Far more opposite-gender couples will produce and care for children than same-gender couples and perpetuation of the species depends upon procreation. Consistent with the greatest good for the greatest number, the State could rationally and sincerely believe that children are best raised by two parents of opposite gender (including their biological parents) and that the present arrangement provides the best incentive for that outcome. Ac- cordingly, the State could seek to preserve the clar- ity of what marriage represents and not extend it. Of course, other states may disagree. And it is always possible to argue that there are exceptions. But on this issue we should defer. To be sure, the constant refrain in these cases has been that the States' justifications are not advanced by excluding same-gender couples from marriage. But that is a matter of opinion; any improvement on the clas- sification should be left to the state political pro- cess. At the very least, same-gender marriage is a new social phenomenon with unknown outcomes and the State could choose to exercise caution. Utah's justifications for not extending marriage to include same-gender couples are not irrefutable. But they don't need to be; they need only be based upon any reasonably conceivable state of facts. Beach Commc'ns, 508 U.S. at 313, 113 S.Ct. 2096. In conducting this analysis, we must defer to the predictive judgments of the electorate and the legis- lature and those judgments need not be based upon complete, empirical evidence. See Turner Broad- casting System, Inc. v. Fed. Commc'n Comm'n, 512 U.S. 622, 66566, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Page 43 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (350 of 518) *41 No matter how many times we are re- minded that (1) procreative ability and effective parenting are not prerequisites to opposite-gender marriage (exclusion of same-gender couples is un- der-inclusive), (2) it is doubtful that the behavior of opposite-gender couples is affected by same-gender marriage (lack of evidence), (3) the evidence is equivocal concerning the effects of gender diversity on parenting (lack of evidence) and (4) the present scheme disadvantages the children of same-gender couples (exclusion is over-inclusive), FN4 the State's classification does not need to be perfect. It can be under-inclusive and over-inclusive and need only arguably serve the justifications urged by the State. It arguably does. That the Constitution does not compel the State to recognize same-gender marriages within its own borders demonstrates a fortiori that it need not re- cognize those solemnized without. Unlike the fed- eral government in Windsor, a state has the historic and essential authority to define the marit- al relation as applied to its residents and citizens. Windsor, 133 S.Ct. at 269192. To that end, Utah has the authority to decline to recognize valid mar- riages from other states that are inconsistent with its public policy choices. See In re Vetas' Estate, 110 Utah 187, 170 P.2d 183, 187 (Utah 1946) (declining to recognize foreign common law mar- riage when such marriages were not recognized by Utah) (superseded by statute as stated in Whyte v. Blair, 885 P.2d 791, 793 (Utah 1994)). To conclude otherwise would nationalize the regulation of mar- riage, thereby forcing each state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is com- petent to legislate. Baker by Thomas v. Gen. Mo- tors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). Such a result runs in direct contravention of the law of comity between states and its uncontroversial corollary that marriage laws necessarily vary from state to state. Windsor, 133 S.Ct. at 2691. The State has satisfied its burden on rational basis review. One only need consider the reams of sociological evidence urged by the parties and the scores of amicus briefs on either side to know that the State's position is (at the very least) arguable. It most certainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legis- lature could conceivably believe. Though the Plaintiffs would weigh the interests of the State dif- ferently and discount the procreation, child-rearing, and caution rationales, that prerogative belongs to the electorate and their representatives. Or as the Court recently stated: The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that po- sition with respect to any particular election, it is inconsistent with the underlying premises of a re- sponsible, functioning democracy. *42 Schuette v. Coalition to Defend Affirmative Action, U.S. , , 134 S.Ct. 1623, 1637, 188 L.Ed.2d 613 (2014) (plurality opinion). We should resist the temptation to become philosopher- kings, imposing our views under the guise of con- stitutional interpretation of the Fourteenth Amend- ment. APPENDIX A 27 SCHOLARS OF FEDERALISM AND JU- DICIAL RESTRAINT Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer 46 EMPLOYERS AND ORGANIZATIONS REPRESENTING EMPLOYERS Attorneys on the Brief: Meghan Bailey, Susan Baker Manning, John V. McDermott, Lauren Schmidt, Margaret Sheer, Michael Louis Whit- lock 93 INDIVIDUAL FAITH LEADERS IN OK- Page 44 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (351 of 518) LAHOMA AND UTAH Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman 9TO5, NATIONAL ASSOCIATION OF WORKING WOMEN Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia ACLU OF OKLAHOMA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia ACLU OF UTAH Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia AFFIRMATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman ALL SOULS UNITARIAN CHURCH OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman ALLEN, DOUGLAS W. Attorneys on the Brief: David C. Walker ALLIANCE FOR A BETTER UTAH Attorneys on the Brief: Courtney Bowman, Sarah KrollRosenbaum, Shawn Scott Ledingham ALVAR, HELEN M. Attorneys on the Brief: Richard D. White AMBROSE, DOUGLAS Attorneys on the Brief: Frank D. Mylar APPENDIX A AMERICAN CIVIL LIBERTIES UNION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia AMERICAN LEADERSHIP FUND Attorneys on the Brief: Frank D. Mylar AMERICAN MILITARY PARTNER ASSO- CIATION Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man AMERICAN PSYCHOLOGICAL ASSOCI- ATION Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith AMERICAN SOCIOLOGICAL ASSOCI- ATION Attorneys on the Brief: Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andrew P. Meiser, Andra Troy AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai ANDERSON, JANNA Attorneys on the Brief: Dani Hartvigsen ANDERSON, RYAN Attorneys on the Brief: Michael Francis Smith ANTIDEFAMATION LEAGUE Page 45 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (352 of 518) Attorneys on the Brief: Michelle Deutchman, Steven M. Freeman, Seth M. Marnin, Rocky Chiu-feng Tsai API EQUALITYLA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia ASIAN AMERICANS ADVANCING JUSTICE, ASIAN AMERICANS ADVANCING JUSTICEASIAN LAW CAUCUS *43 Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kies- el, John M. Mejia ASIAN AMERICANS ADVANCING JUSTICECHICAGO Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia APPENDIX A AUSTIN LGBT BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth BAR ASSOCIATION OF SAN FRANCISCO Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth BARDAGLIO, PETER Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping BASCH, NORMA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth BECKET FUND FOR RELIGIOUS LIBERTY Attorneys on the Brief: Eric C. Rassbach, Asma Uddin BELTRAN, LYNN Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison BELZ, HERMAN Attorneys on the Brief: Frank D. Mylar BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai BENNE, ROBERT D. Attorneys on the Brief: Frank D. Mylar BOYLE, DAVID Attorneys on the Brief: David Boyle CALIFORNIA Attorneys on the Brief: Kamala D. Harris, Peter Sacks CARBADO, DEVON Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin APPENDIX A CARLSON, ALLAN C. Attorneys on the Brief: Frank D. Mylar CARROLL, JASON S. Page 46 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (353 of 518) Attorneys on the Brief: Lynn Dennis Wardle CATHEDRAL OF HOPE OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman CATO INSTITUTE Attorneys on the Brief: Ilya Shapiro, Elizabeth B. Wydra CENTER FOR CONSTITUTIONAL JURIS- PRUDENCE Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer CENTRAL CONFERENCE OF AMERICAN RABBIS Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai CHILDREN'S CENTER OF SALT LAKE CITY Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr CHRISTENSEN, LAVAR Attorneys on the Brief: Robert Theron Smith CHURCH OF THE OPEN ARMS OF OK- LAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman CHURCH OF THE RESTORATION OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman CIMARRON ALLIANCE Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia COLAGE Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr APPENDIX A *44 COLORADO GAY LESBIAN BISEXU- AL TRANSGENDER (GLBT) BAR ASSOCI- ATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth COLORADO WOMEN'S BAR ASSOCI- ATION Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin CONCERNED WOMEN FOR AMERICA Attorneys on the Brief: Steven W. Fitschen CONGREGATION KOLAMI OF SALT LAKE CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman CONKLE, DANIEL O. Attorneys on the Brief: Brett Gilbert Scharffs CONNECTICUT Attorneys on the Brief: George Jepsen, Peter Sacks CONSTITUTIONAL ACCOUNTABILITY CENTER Attorneys on the Brief: Ilya Shapiro, Elizabeth B. Page 47 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (354 of 518) Wydra CONSTITUTIONAL LAW SCHOLARS Attorneys on the Brief: Lori Ann Alvino McGill, Geoffrey R. Stone COONTZ, STEPHANIE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping COTT, NANCY Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping COVENANT NETWORK OF PRESBYTERI- ANS Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman COX, DUANE MORLEY Attorneys on the Brief: Duane Morley Cox APPENDIX A CURTIS, G.M. Attorneys on the Brief: Frank D. Mylar DELAWARE Attorneys on the Brief: Joseph R. Biden III, Peter Sacks DISTRICT OF COLUMBIA Attorneys on the Brief: Irvin B. Nathan, Peter Sacks DITZ, TOBY L. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping DOLOVICH, SHARON Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin DUBLER, ARIELA R. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND Attorneys on the Brief: Lawrence John Joseph EDWARDS, LAURA F. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping EGGEBEEN, DAVID J. Attorneys on the Brief: David C. Walker EIGHTY ONE UTAH STATE LEGISLAT- ORS Attorneys on the Brief: Robert Theron Smith EMERSON, MICHAEL O. Attorneys on the Brief: Frank D. Mylar EPISCOPAL DIOCESE OF UTAH Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman APPENDIX A EPWORTH UNITED METHODIST CHURCH OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman EQUAL RIGHTS ADVOCATES Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin EQUALITY UTAH Attorneys on the Brief: Troy L. Booher, Clifford Page 48 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (355 of 518) J. Rosky, Noella A. Sudbury, Michael D. Zim- merman FAMILY EQUALITY COUNCIL Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr FAMILY LAW AND CONFLICT OF LAWS PROFESSORS Attorneys on the Brief: Marjory A. Gentry, Joanna L. Grossman, John S. Throckmorton *45 FAMILY LAW PROFESSORS Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein FAMILY RESEARCH COUNCIL Attorneys on the Brief: Paul Benjamin Linton FELLOWSHIP CONGREGATIONAL UNITED CHURCH OF CHRIST OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman FIRST UNITARIAN CHURCH OF OK- LAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman FLUKE, CHARLES Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison FREEDOM TO MARRY Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth APPENDIX A FRIENDS FOR LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUEER CONCERNS Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman GAY & LESBIAN ADVOCATES & DE- FENDERS Attorneys on the Brief: Felicia H. Ellsworth, Mark C. Fleming, Leah M. Litman, Dina Bernick Mishra, Kenneth Lee Salazar, Alan E. Schoen- feld, Paul Reinherz Wolfson GEORGE, ROBERT P. Attorneys on the Brief: Michael Francis Smith GEORGE, TIMOTHY Attorneys on the Brief: Frank D. Mylar GIRGIS, SHERIF Attorneys on the Brief: Michael Francis Smith GLMA: HEALTH PROFESSIONALS AD- VANCING LGBT EQUALITY Attorneys on the Brief: Nicholas M. O'Donnell GROSSBERG, MICHAEL Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping HADASSAH, THE WOMEN'S ZIONIST OR- GANIZATION OF AMERICA, INC. Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai HARTOG, HENDRIK Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping HAWKINS, ALAN J. Attorneys on the Brief: David C. Walker Page 49 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (356 of 518) HAYASHI, SCOTT Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman APPENDIX A HERMAN, ELLEN Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping HINDU AMERICAN FOUNDATION Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai HISPANIC NATIONAL BAR ASSOCIATION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia HISTORIANS OF ANTIGAY DISCRIMINA- TION Attorneys on the Brief: Katie D. Fairchild, Madeline H. Gitomer, Jessica Black Livingston, Katherine A. Nelson, Aaron M. Paul, Erica Knievel Songer, Catherine E. Stetson HODES, MARTHA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC Attorneys on the Brief: David Scott Flugman HUMAN RIGHTS CAMPAIGN Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia HUNTER, NAN D. *46 Attorneys on the Brief: Marcia D. Greenber- ger, Cortelyou Kenney, Emily Martin ILLINOIS Attorneys on the Brief: Lisa Madigan, Peter Sacks INSTITUTE FOR MARRIAGE AND PUBLIC POLICY Attorneys on the Brief: Jennifer L. Bursch INTERFAITH ALLIANCE FOUNDATION Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai APPENDIX A INTERFAITH ALLIANCE OF COLORADO Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai IOWA Attorneys on the Brief: Tom Miller, Peter Sacks JAMES, HAROLD Attorneys on the Brief: Frank D. Mylar JAPANESE AMERICAN CITIZENS LEAGUE Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai JEWISH SOCIAL POLICY ACTION NET- WORK Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai JOHNSON, BYRON R. Page 50 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (357 of 518) Attorneys on the Brief: David C. Walker JUSTICE, STEVEN Attorneys on the Brief: Frank D. Mylar KERBER, LINDA K. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping KESHET Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai KESSLERHARRIS, ALICE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping KOONS, ROBERT C. Attorneys on the Brief: Frank D. Mylar KURTZ, STANLEY Attorneys on the Brief: Frank D. Mylar APPENDIX A LAMBDA LEGAL DEFENSE AND EDUCA- TION FUND, INC. Attorneys on the Brief: Jennifer C. Pizer, Susan Sommer, Camilla Taylor, Kenneth D. Upton LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia LEGAL MOMENTUM Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin LEGAL VOICE Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin LGBT & ALLIED LAWYERS OF UTAH BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth LIBERTY COUNSEL, INC. Attorneys on the Brief: Anita Staver, Mathew D. Staver LITTLETON, CHRISTINE A. Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin LOPEZ, ROBERT OSCAR Attorneys on the Brief: Dani Hartvigsen LOVE HONOR CHERISH Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth LUTHERAN CHURCHMISSOURI SYNOD Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr MAINE Attorneys on the Brief: Janet T. Mills, Peter Sacks MAINWARING, DOUG Attorneys on the Brief: Dani Hartvigsen APPENDIX A MARRIAGE EQUALITY USA Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth *47 MARYLAND Page 51 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (358 of 518) Attorneys on the Brief: Douglas F. Gansler, Peter Sacks MASSACHUSETTS Attorneys on the Brief: Martha Coakley, Michelle L. Leung, Jonathan B. Miller, Genevieve C. Nadeau, Peter Sacks MAY, ELAINE TYLER Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping MAYERI, SERENA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping MAYFLOWER CONGREGATIONAL UNITED CHURCH OF CHRIST OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman McDERMOTT, GERALD R. Attorneys on the Brief: Frank D. Mylar McHUGH, PAUL Attorneys on the Brief: Gerard Vincent Bradley, Kevin Trent Snider McIFF, KAY Attorneys on the Brief: Robert Theron Smith METHODIST FEDERATION FOR SOCIAL ACTION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman METROPOLITAN COMMUNITY CHURCHES Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai MINNESOTA LAVENDER BAR ASSOCI- ATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth APPENDIX A MINTZ, STEVE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping MOORE, RUSSELL Attorneys on the Brief: Frank D. Mylar MORE LIGHT PRESBYTERIANS Attorneys on the Brief: Samual P. Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai MORMONS FOR EQUALITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman MT. TABOR LUTHERAN CHURCH OF SALT LAKE CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman NAACP SALT LAKE BRANCH & NAACP TRI STATE CONFERENCE OF IDAHO, NEVADA AND UTAH Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia NATIONAL ACTION NETWORK Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, Page 52 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (359 of 518) John Mejia NATIONAL ASIAN PACIFIC AMERICA BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth NATIONAL ASSOCIATION FOR RE- SEARCH AND THERAPY OF HOMOSEXUAL- ITY Attorneys on the Brief: Stephen M. Crampton, Mary Elizabeth McAlister NATIONAL ASSOCIATION OF EVANGEL- ICALS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr NATIONAL ASSOCIATION OF WOMEN LAWYERS Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin APPENDIX A NATIONAL COUNCIL OF JEWISH WOMEN Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai NATIONAL COUNCIL OF LA RAZA Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia *48 NATIONAL GAY AND LESBIAN TASK FORCE Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia NATIONAL ORGANIZATION FOR WOMEN FOUNDATION Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin NATIONAL WOMEN'S LAW CENTER Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin NEHIRIM Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai NELSON, MERRILL Attorneys on the Brief: Robert Theron Smith NERO, NICHOLAS Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison NEW HAMPSHIRE Attorneys on the Brief: Joseph A. Foster, Peter Sacks NEW MEXICO Attorneys on the Brief: Gary K. King, Peter Sacks NEW MEXICO LESBIAN AND GAY LAW- YERS ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth APPENDIX A Page 53 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (360 of 518) NEW YORK Attorneys on the Brief: Peter Sacks, Eric T. Schneiderman NEWMAN, ALANA Attorneys on the Brief: Dani Hartvigsen O'GRADY, CLAUDIA Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW OUTLAWS Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth OKLAHOMANS FOR EQUALITY Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia OREGON Attorneys on the Brief: Ellen F. Rosenblum, Peter Sacks OUTSERVESLDN Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man PAKALUK, CATHERINE R. Attorneys on the Brief: David C. Walker PAQUETTE, ROBERT Attorneys on the Brief: Frank D. Mylar PARENTS AND FRIENDS OF EXGAYS & GAYS Attorneys on the Brief: Arthur Andrew Schulcz, Jr. PARENTS, FAMILIES AND FRIENDS OF LESBIANS AND GAYS, INC. Attorneys on the Brief: Andrew John Davis, Jiyun Cameron Lee PEOPLE FOR THE AMERICAN WAY FOUNDATION Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai PERRY, MICHAEL J. Attorneys on the Brief: Brett Gilbert Scharffs APPENDIX A PLECK, ELIZABETH Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping POLIKOFF, NANCY Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin PRESBYTERIAN WELCOME Attorneys on the Brief: Samual P. Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai PRICE, JOSEPH Attorneys on the Brief: David C. Walker *49 PUBLIC ADVOCATES, INC. Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia QLAWTHE GLBT BAR ASSOCIATION OF WASHINGTON Attorneys on the Brief: Nicole Susan Phillis, Page 54 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (361 of 518) Jerome Cary Roth RAHE, PAUL A. Attorneys on the Brief: Frank D. Mylar RECONCILING MINISTRIES NETWORK Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman RECONCILINGWORKS: LUTHERANS FOR FULL PARTICIPATION Attorneys on the Brief: Samual P. Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai RECONSTRUCTIONIST RABBINICAL AS- SOCIATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman RECONSTRUCTIONIST RABBINICAL COLLEGE Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman APPENDIX A REGNERUS, MARK D. Attorneys on the Brief: David C. Walker RELIGIOUS INSTITUTE, INC. Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman REYNOLDS, MICHAEL A. Attorneys on the Brief: Frank D. Mylar RHODE ISLAND Attorneys on the Brief: Peter F. Kilmartin, Peter Sacks ROVIG, STANFORD Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison SCHARFFS, BRETT GILBERT Attorneys on the Brief: Brett Gilbert Scharffs SCHULTZ, VICKI Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin SEARS, BRAD Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin SHAMMAS, CAROLE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping SHANLEY, MARY Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping SHIFFRIN, SEANA Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin SIKH AMERICAN LEGAL DEFENSE AND EDUCATION FUND Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai APPENDIX A SNOW, LOWRY Attorneys on the Brief: Robert Theron Smith SOCIETY FOR HUMANISTIC JUDAISM Attorneys on the Brief: Samual P. Bickett, Re- Page 55 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (362 of 518) becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai SOUTH ASIAN AMERICANS LEADING TOGETHER Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai SOUTHWEST WOMEN'S LAW CENTER Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin ST. STEPHEN'S UNITED METHODIST CHURCH OF NORMAN, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman STANLEY, AMY DRU Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping *50 STATE OF ALABAMA Attorneys on the Brief: Thomas Molnar Fisher, Luther Strange STATE OF ALASKA Attorneys on the Brief: Thomas Molnar Fisher, Michael C. Geraghty STATE OF ARIZONA Attorneys on the Brief: Thomas Molnar Fisher, Thomas C. Horne STATE OF COLORADO Attorneys on the Brief: Thomas Molnar Fisher, John Suthers STATE OF IDAHO Attorneys on the Brief: Thomas Molnar Fisher, Lawrence G. Wasden STATE OF INDIANA Attorneys on the Brief: Thomas Molnar Fisher, Gregory F. Zoeller STATE OF KANSAS Attorneys on the Brief: Jeffrey A. Chanay, Bryan Charles Clark APPENDIX A STATE OF MICHIGAN Attorneys on the Brief: Aaron Lindstrom, Bern- ard Eric Restuccia, Bill Schuette STATE OF MONTANA Attorneys on the Brief: Thomas Molnar Fisher, Timothy C. Fox STATE OF NEBRASKA Attorneys on the Brief: Jon Bruning, Thomas Molnar Fisher STATE OF OKLAHOMA Attorneys on the Brief: Thomas Molnar Fisher, E. Scott Pruitt STATE OF SOUTH CAROLINA Attorneys on the Brief: Thomas Molnar Fisher, Alan Wilson STONEWALL BAR ASSOCIATION OF GEORGIA, INC. Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth STONEWALL BAR ASSOCIATION OF MICHIGAN Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth Page 56 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (363 of 518) STONEWALL LAW ASSOCIATION OF GREATER HOUSTON Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth STRAUB, D'ARCY WINSTON Attorneys on the Brief: D'Arcy Winston Straub THE CENTER FOR URBAN RENEWAL AND EDUCATION Attorneys on the Brief: Stephen Kent Ehat THE CHURCH OF JESUS CHRIST OF LAT- TERDAY SAINTS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr THE COALITION OF AFRIC- ANAMERICAN PASTORS USA Attorneys on the Brief: Stephen Kent Ehat THE EQUALITY NETWORK Attorneys on the Brief:, Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia APPENDIX A THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr THE FREDERICK DOUGLASS FOUNDA- TION, INC. Attorneys on the Brief: Stephen Kent Ehat THE OUTLAWS Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth THE SUTHERLAND INSTITUTE Attorneys on the Brief: William C. Duncan THE UTAH PSYCHOLOGICAL ASSOCI- ATION Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA Attorneys on the Brief: Samuel P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai TRINITY CHRISTIAN CHURCH OF ED- MOND, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman T'RUAH: THE RABBINIC CALL FOR HU- MAN RIGHTS *51 Attorneys on the Brief: Samual P. Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai UNION FOR REFORM JUDAISM Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman UNITARIAN UNIVERSALIST ASSOCI- ATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman UNITED CHURCH OF CHRIST Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman Page 57 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (364 of 518) APPENDIX A UNITED CHURCH OF NORMAN, OK- LAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman UNITED STATES CONFERENCE OF CATH- OLIC BISHOPS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr UNIVERSITY OF OKLAHOMA COLLEGE OF LAW LEGAL GROUP FOR BUILDING TOL- ERANCE AND ACCEPTANCE Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth UPHAM, DAVID R. Attorneys on the Brief: David Robert Upham UTAH COUNTIES Attorneys on the Brief: Jared W. Eldredge, Lynn Dennis Wardle UTAH PRIDE CENTER Attorneys on the Brief: Troy L. Booher, Clifford J. Rosky, Noella A. Sudbury, Michael D. Zim- merman VERMONT Attorneys on the Brief: Peter Sacks, William H. Sorrell VOICES FOR UTAH CHILDREN Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr WASHINGTON Attorneys on the Brief: Robert W. Ferguson, Peter Sacks WELKE, BARBARA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping WESTERN REPUBLICANS Attorneys on the Brief: Stacy A. Carpenter, Ben- nett L. Cohen, Jon R. Dedon, Sean Robert Galla- gher WILKEN, ROBERT LOUIS Attorneys on the Brief: Frank D. Mylar APPENDIX A WINKLER, ADAM Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin WOLFE, CHRISTOPHER Attorneys on the Brief: Frank D. Mylar WOMEN OF REFORM JUDAISM Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai WOMEN'S LAW PROJECT Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin WOMEN'S LEAGUE FOR CONSERVATIVE JUDAISM Attorneys on the Brief: Samual P. Bickett, Re- becca Harlow, Idin Kashefipour, Rocky Chiu- feng Tsai WOOD, PETER W. Attorneys on the Brief: Frank D. Mylar Page 58 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (365 of 518) WORTHAM, DOUGLAS Attorneys on the Brief: Jacob Harris Hupart, Jar- en Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison FN* The names of all amicus curiae parties are contained in Appendix A to this Opinion. FN1. In her answer, the Salt Lake County Clerk stated that her duties are purely ministerial, and that the State of Utah controls the content of the form application to be completed by those seeking marriage licenses in the State of Utah. FN2. Utah argues that doctrinal develop- ments are insufficient to undermine a summary disposition, asserting that the Court overruled Hicks in Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), in stating that [i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which dir- ectly controls, leaving to this Court the prerogative of overruling its own de- cisions. Id. at 484; see also Conover v. Aetna U.S. Healthcare, Inc., 320 F.3d 1076, 1078 n. 2 (10th Cir.2003) ([T]he Supreme Court instructed us to avoid con- cluding its more recent cases have, by im- plication, overruled an earlier precedent. (quotation omitted)). But both of these cases dealt with opinions on the merits. We do not read them as overruling the doctrin- al developments rule as to summary dis- positions. FN3. Some have suggested that Baker im- plicates a court's subject matter jurisdic- tion. See, e.g., Bostic, 970 F.Supp.2d at 469 (Defendants here contend that be- cause the Supreme Court found a substan- tial federal question lacking in Baker, this Court is precluded from exercising juris- diction.). Given our conclusion that sub- sequent doctrinal developments have rendered Baker no longer binding, such an assertion necessarily fails. We further note that because plaintiffs have filed plausible federal constitutional claims pursuant to 42 U.S.C. 1983, which specifically allows such claims to be filed in federal court, they have presented a federal question suf- ficient to confer subject matter jurisdiction. See Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) ( 28 U.S.C. 1331 is invoked by and large by plaintiffs pleading a cause of action cre- ated by federal law (e.g., claims under 42 U.S.C. 1983)). FN4. The Court distinguished its prior summary affirmance of Johnson v. Rocke- feller, 365 F.Supp. 377 (S.D.N.Y.1973), which upheld a prohibition on marriage for inmates serving a life sentence. Turner, 482 U.S. at 96, 107 S.Ct. 2254; see Butler v. Wilson, 415 U.S. 953, 94 S.Ct. 1479, 39 L.Ed.2d 569 (1974) (per curiam) (summary affirmance). Appellants argue that this dis- tinction shows that only those individuals who can procreate have a fundamental right to marry, but the Turner Court did not rely on procreation in distinguishing the summary affirmance in Butler, holding instead that importantly, denial of the right was part of the punishment for crime and citing a concurrence for the proposi- tion that the asserted governmental in- terest of punishing crime [was] sufficiently important to justify deprivation of [the] right. 482 U.S. at 96, 107 S.Ct. 2254. We acknowledge that the three-judge panel in Johnson did mention the impossibility of a Page 59 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (366 of 518) life-incarcerated prisoner participating in the begetting and raising of children, which is described (along with cohabitation and sexual intercourse) as among the aspects of marriage which make it one of the basic civil rights of man. 365 F.Supp. at 380. But [b]ecause a summary affirmance is an affirmance of the judgment only, the rationale of the af- firmance may not be gleaned solely from the opinion below. Turner, 482 U.S. at 96, 107 S.Ct. 2254 (quotation omitted). We thus cannot read the summary affirmance in Butler as standing for the proposition that procreation is an essential aspect of the marriage relationship. FN5. Hodgson was a splintered decision. Justice Stevens delivered the opinion of the Court as to certain portions of his writ- ing, but the quotation that follows is from a section joined only by Justice Brennan. FN6. Appellants contend that 2 of DOMA forecloses any challenge to the nonrecognition provisions of Amendment 3. However, they raise this issue only in a footnote and in conclusory fashion. See In re C.W. Mining Co., 740 F.3d 548, 564 (10th Cir.2014) ([A]rguments raised in a perfunctory manner, such as in a footnote, are waived. (quotation and emphasis omitted)). Because we conclude that mar- riage is a fundamental right and the state's arguments for restricting it to opposite-sex couples fail strict scrutiny, appellants' ar- guments regarding 2 of DOMA also fail on the merits. Congress cannot authorize a state to violate the Fourteenth Amendment. See Graham v. Richardson, 403 U.S. 365, 382, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (Congress does not have the power to au- thorize the individual States to violate the Equal Protection Clause.). FN7. Utah also permits adoption by un- married, non-cohabitating individuals if it is in the best interests of the child to place the child with a single person. Utah Code 78B6117(4)(e). But any person who is cohabitating in a relationship that is not a legally valid and binding marriage under the laws of this state, 78B6117(3), may not adopt a child, with no explicit ex- ception for the child's best interest. FN8. In Seegmiller v. Laverkin City, 528 F.3d 762 (10th Cir.2008), we concluded that Lawrence did not announce a funda- mental right to engage in private sexual conduct. Id. at 771. As explained above, however, Lawrence did expressly reject Bowers' narrow, class-based framing of the liberty interest at issue. FN9. We do not express any view on the constitutionality of this provision. Instead, we note the inconsistency between the message sent by this statute and the mes- sage appellants claim the same-sex mar- riage ban conveys. FN10. It appears that the only cases in which the Supreme Court has deferred to the predictions of legislators in evaluating the constitutionality of their enactments have involved, at most, intermediate scru- tiny. See City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion) (applying the less stringent standard ... for evaluating restrictions on symbolic speech (quotation omitted)); Turner II, 520 U.S. at 213, 117 S.Ct. 1174; Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ( Turner I )(plurality opinion). These cases also consider circumstances in which lawmaking authorities made factual findings regarding the feared risks before they promulgated the challenged laws, see Erie, 529 U.S. at 297, 120 S.Ct. 1382; Page 60 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (367 of 518) Turner II, 520 U.S. at 191225, 117 S.Ct. 1174. Appellants have not directed us to any such findings. FN11. Because we conclude that marriage is a fundamental right, we do not consider whether Amendment 3 passes muster un- der rational basis review. Similarly, we do not address whether Amendment 3 might be subject to heightened scrutiny on any alternative basis. FN12. We also note, with respect to the first three rationales asserted by appellants, that the same arguments were submitted to the Court in Windsor and rejected. The ini- tial brief filed by the Bipartisan Legal Ad- visory Group (BLAG) in that case ar- gued that DOMA was justified based on the link between procreation and mar- riage. Initial Br. for BLAG at 44, Wind- sor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (No. 12307). BLAG also ar- gued that refusing to recognize same-sex marriage offers special encouragement and support for relationships that can result in mothers and fathers jointly raising their biological children and that biological differentiation in the roles of mothers and fathers makes it rational to encourage situ- ations in which children have one of each. Id. at 48. Justice Alito's dissent in Windsor relied on these arguments. 133 S.Ct. at 2718 (Alito, J., dissenting) (asserting that states are free to support the traditional or conjugal view of marriage as an intrinsically opposite- sex institution ... created for the purpose of channeling heterosexual intercourse into a structure that supports child rear- ing). The majority did not mention these justifications, but concluded that DOMA is unconstitutional as a depriva- tion of the liberty of the person protected by the Fifth Amendment of the Constitu- tion. Id. at 2695. FN13. Although appellants suggest that re- ligious institutions might be subject to hy- pothetical lawsuits under various scenari- os, such lawsuits would be a function of antidiscrimination law, not legal recogni- tion of same-sex marriage. FN14. If no petition for certiorari is filed, we would lift the stay and issue our man- date when the deadline for filing the peti- tion lapses. See Perry v. Brown, 681 F.3d 1065, 106667 (9th Cir.2012) (per curi- am). If a petition for certiorari is filed and denied, we would lift the stay and issue the mandate. See Stafford v. Ward, 60 F.3d 668, 671 (10th Cir.1995). And if a petition for certiorari is filed and granted, the stay will remain in effect until the Supreme Court resolves the dispute. See id. at 670. FN15. The Supreme Court recently denied without explanation a motion to stay a dis- trict court's order enjoining the enforce- ment of a state's same-sex marriage ban. See Nat'l Org. for Marriage v. Geiger, No. 13A1173, 2014 U.S. LEXIS 3990 (June 4, 2014). We note that in that case the named defendants declined to defend the chal- lenged laws before the district court. Gei- ger, 2014 U.S. Dist. LEXIS 68171, at *10. A third party, whose motion to intervene in the district court had been denied, sought a stay from the Supreme Court. As a result, the Court may have denied a stay in Geiger for lack of a proper party requesting one. Thus, Geiger does not clearly indicate that the Court no longer wishes to preserve the status quo regarding same-sex marriage in Utah. FN1. Utah Const. art. I, 29 and Utah Code 3012(5) (enacted in 1977), Page 61 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (368 of 518) 3014.1. FN2. On appeal, the State offers a different formulation: (1) fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children, (2) children being raised by their biological mothers and fathersor at least by a married mother and fatherin a stable home, (3) ensuring adequate re- production by parents willing and able to provide a high-quality home environment for their children, and (4) accommodating religious freedom and reducing the poten- tial for civic strife. Aplt. Br. at iii. Not- withstanding its endorsement of many sim- ilar (though more general) values in the substantive due process discussion, this court is only willing to assume (apparently without deciding) that the first three are compelling. Be that as it may, Plaintiffs correctly point out that the fourth argument was not raised in the district court. Aplee. Br. at 81 n.26. The State responds that the district court discussed and rejected this argument in its decision, but the court merely made an offhand comment that religious freedom would be furthered by allowing churches to perform same- gender weddings (if they so choose). Aplee. Reply Br. at 41 n.19 (citing Kit- chen, 961 F.Supp.2d at 1214). The State also argues that rational basis review is not confined to explanations of the statute's rationality that may be offered by the litigants or other courts. Id. (quoting Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988)). That may be, but the State as a litigant is of- fering an explanation that was not pre- served. Finally, the State argues that ap- pellate courts may address a waived is- sue in the public interest or to avoid manifest injustice. Id. We normally con- duct appellate review based upon argu- ments raised in the district court. For those that were not, absent a full plain error argument in the opening brief, we consider such arguments waived. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir.2011) ([T]he fail- ure to argue for plain error and its ap- plication on appeal[ ]surely marks the end of the road for an argument for re- versal not first presented to the district court.). FN3. These permissible considerations easily distinguish this case from Loving v. Virginia, upon which Plaintiffs rely. As opposed to the Court-approved interests furthered by the regulations here, the mis- cegenation law invalidated in Loving was based upon distinctions drawn according to race, and the law furthered only the patently impermissible pursuit of invidious discrimination (maintaining White Su- premacy). 388 U.S. at 1112. The Court has always considered racial classifications as different than those based upon gender, or any other consideration. FN4. The Court's conclusion that children raised by same-gender couples are some- how stigmatized, see Windsor, 133 S.Ct. at 2694, seems overwrought when one con- siders that 40.7% of children are now born out of wedlock. See Center for Disease Control and Prevention, FastStats Homepage, available at ht- tp://www.cdc.gov/nchs/fastats/unmarried-c hildbearing.htm (last visited June 24, 2014). Of course, there are numerous al- ternative family arrangements that exist to care for these children. We should be hes- itant to suggest stigma where substantial numbers of children are raised in such en- Page 62 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (369 of 518) vironments. Moreover, it is pure specula- tion that every two-parent household, re- gardless of gender, desires marriage. See Schuette v. Coalition to Defend Affirmative Action, U.S. , , 134 S.Ct. 1623, 1634, 188 L.Ed.2d 613 (2014) (plurality opinion) (cautioning against as- suming that members of the same group think alike and share the same views). C.A.10 (Utah),2014. Kitchen v. Herbert --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) END OF DOCUMENT Page 63 --- F.3d ----, 2014 WL 2868044 (C.A.10 (Utah)) (Cite as: 2014 WL 2868044 (C.A.10 (Utah))) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (370 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 1909999 Only the Westlaw citation is currently available. United States District Court, D. Idaho. Susan LATTA and Traci Ehlers, Lori Watsen and Sharene Watsen, Shelia Robertson and Andrea Altmayer, Amber Beierle and Rachael Robertson, Plaintiffs, v. C.L. Butch OTTER, as Governor of the State of Idaho, in his official capacity, and Christopher Rich, as Recorder of Ada County, Idaho, in his official capacity, Defendants, and State of Idaho, DefendantIntervenor. Case No. 1:13cv00482 CWD. | Signed May 13, 2014. Synopsis Background: Two same-sex couples seeking to marry in Idaho, and two same-sex couples seeking to have their out-of-state marriages recognized in Idaho, brought action under 1983 against Idaho's governor and county recorder seeking declaratory judgment that statutes and constitutional provision defining marriage as between opposite-sex couples only were unconstitutional, and a permanent injunction against enforcement of those laws and provision. The same- sex couples moved for summary judgment. Holdings: The District Court, Candy Wagahoff Dale, United States Chief Magistrate Judge, held that: [1] Supreme Court's prior summary disposition did not preclude review; [2] laws violated due process; [3] laws violated Equal Protection Clause; [4] heightened scrutiny applied to sexual orientation classifications; [5] purpose of laws was, in part, to express moral disapproval; [6] state's interest in child welfare was not persuasive; and [7] state's interest in religious freedom was not persuasive. Motion granted. West Codenotes Held Unconstitutional West's I.C.A. 32201, 32209; Idaho Const. Art. 3, 28. Attorneys and Law Firms Deborah A. Ferguson, The Law Office of Deborah A. Ferguson, PLLC, Craig Durham, Durham Law Office, PLLC, Boise, ID, Christopher F. Stoll, Shannon Minter, San Francisco, CA, for Plaintiffs. Monte N. Stewart, Daniel W. Bower, Stewart Taylor & Morris PLLC, Thomas C. Perry, Cally Ann Younger, Office of the Governor, Steven Lamar Olsen, Office of the Attorney General, Boise, ID, for Defendants. Clay R. Smith, W. Scott Zanzig, Office of the Attorney General, Boise, ID, for Defendants/DefendantIntervenor. Opinion MEMORANDUM DECISION AND ORDER CANDY WAGAHOFF DALE, United States Chief Magistrate Judge. I. INTRODUCTION *1 It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority. The Honorable Harry Blackmun 1 This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority. Plaintiffs are two same-sex couples who desire to marry in Idaho and two same-sex couples who legally married in other states and wish to have their marriages recognized in Idaho. Under Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (371 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 the Constitution and laws of the State of Idaho (Idaho's Marriage Laws), marriage between a man and a woman is the only legally recognized domestic union. Idaho effectively prohibits same-sex marriage and nullifies same-sex marriages legally celebrated in other states. Plaintiffs request the Court declare these laws unconstitutional and enjoin Idaho from enforcing them, which would allow the Unmarried Plaintiffs to marry and the Married Plaintiffs to be legally recognized as married in the state they consider home. Although 17 states legally recognize same-sex marriages, 2 Idaho is one of many states that has chosen the opposite course. Like courts presiding over similar cases across the country, the Court must examine whether Idaho's chosen course is constitutional. Significantly, the Supreme Court of the United States recently held that the federal government cannot constitutionally define marriage as a legal union between one man and one woman. United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). Writing for the majority in Windsor, Justice Kennedy reasoned the purpose and effect of the federal man- woman marriage definition was to disparage and injure legally married same-sex couples in derogation of the liberty, due process, and equal protection guaranteed by the Fifth Amendment to the United States Constitution. Id. at 2696. Here, the Court considers a related but distinct question: Do Idaho's Marriage Laws deny Plaintiffs the due process or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution? After careful consideration, the Court finds Idaho's Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government a state's broad authority to regulate matters of state concern does not include the power to violate an individual's protected constitutional rights. See, e.g., id. at 2691 (State laws defining and regulating marriage, of course, must respect the constitutional rights of persons....). Idaho's Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second- class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny. II. BACKGROUND *2 Marriage works a fundamental change on the lives of all who experience it. The decision to marry is both a deeply personal expression of love and a public declaration of commitment. For many, marriage is also a profoundly important religious institution, cementing and celebrating a life-long union enriched by enduring traditions. These traditions vary from faith to faith, but when most people think of marriage they think of the ceremonythe wedding with all of the hope and joy those pivotal moments entail. Compared to the immense personal and spiritual significance of marriage as a ceremonial rite, the civil institution of marriage is much more prosaic. A. Idaho's Marriage Laws A series of licensing statutes govern civil marriage in Idaho. As far as the State is concerned, marriage is a contract evidenced by a State-issued license and a solemnization. Idaho Code 32201(1). The solemnization itself can be secular or religious, and the officiant need not be an ordained minister. Id. 32303 to 304. Regardless of their preferred method of solemnization, opposite-sex couples are eligible for a marriage license so long as they meet certain minimal requirements. See id. 32202 (age limitations); 205, 206 (consanguinity limitations); 207 (prohibition of polygamous marriages). A multitude of legal benefits and responsibilities flow from a valid civil marriage contract. These marital benefits include the right to be recognized as a spouse when petitioning to adopt a child born to a spouse, see id. 161503, 1506; have access to an ill spouse at the hospital and to make medical decisions for an ill or incapacitated spouse without a written power of attorney, see id. 394504; file a joint state income tax return as a married couple, see id. 633031; inherit a share of the estate of a spouse who dies without a will, see id. 152102; preclude a spouse from testifying in a court proceeding about confidential communications made during the marriage, see id. 9203; and jointly own community property with right of survivorship, see id. 15 6401. These incidents of marriage touch every aspect of a person's life. From the deathbed to the tax form, property rights to parental rights, the witness stand to the probate court, the legal status of spouse provides unique and undeniably important protections. Opposite-sex married couples enjoy many of these benefits by automatic operation of law. A couple need not marry in Idaho to enjoy these benefits, as Idaho generally follows the so-called place of celebration rule. See Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766, 769 (1942) (Having assumed and entered into the marital relation with appellant in Montana, the status Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (372 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 thus established followed Morrison to Idaho and could not be shed like a garment on entering this state.). Under this longstanding rule, a marriage contracted outside Idaho will be valid in Idaho if the marriage is valid where contracted. See Idaho Code 32209. That is, unless the marriage is between two persons of the same sex. Id. *3 Same-sex couples are categorically prohibited from obtaining a marriage license in Idaho or from having their otherwise valid out-of-state marriages recognized in Idaho. But for the fact they are same-sex couples, Plaintiffs would either be recognized as married or be eligible to marry. Plaintiffs challenge three specific provisions of Idaho law. 3 First, Idaho Code 32201 defines marriage as a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making it is necessary. Id. 32201(1). This statute prohibits same-sex marriage regardless of whether a couple otherwise qualifies for a marriage license. Second, Idaho Code 32209 provides the mechanism by which Idaho recognizes the legal validity of marriages contracted in other states or countries. The statute provides: All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same- sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state. Id. 32209. This statute creates a two-tiered system for out- of-state marriages. While opposite-sex couples benefit from the place of celebration rule, married same-sex couples shed their marital status upon entering Idaho. Although the State's non-recognition policy is not limited to same-sex marriages and marriages contracted with the intent to evade Idaho law, the statute lists no other form of marriage specifically. Third, the Idaho Constitution effectively bans legal recognition of same-sex unions. In November of 2006, a majority of Idaho's electorate voted to add the following language to the Idaho Constitution: A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state. Idaho Const. Art. III, 28. This provision has the combined legal effect of the two statutes referenced above. But, by virtue of its place in the Idaho Constitution, the amendment imposes powerful restraints on Idaho's Legislature and Judiciary. The provision effectively precludes a state court from finding that Idaho law requires the State to recognize any type of same-sex union. And it precludes every legislative body in Idaho from recognizing civil unions or any other same-sex relationship approximating marriage. Absent a superseding constitutional amendment, no branch of state government may authorize or recognize the marriage of two persons of the same sex. Thus, Idaho's Marriage Laws prevent same-sex couples, whether married or unmarried, from obtaining the marital status and benefits afforded to opposite-sex couples. B. The Plaintiffs Plaintiffs are four same-sex couples. The Married Plaintiffs, Susan Latta and Traci Ehlers, and Lori Watsen and Sharene Watsen, legally married in other states and wish to have their marriages recognized in Idaho. The Unmarried Plaintiffs, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson, desire to be married in Idaho, but the County Recorder of Ada County, Defendant Rich, denied their marriage license applications. The following undisputed facts are contained in the pleadings and in Plaintiffs' declarations. 1. Susan Latta and Traci Ehlers *4 Susan Latta has lived in Boise for 22 years. Traci Ehlers has resided in Idaho's Treasure Valley for 38 years. Latta is a professional artist and adjunct professor at Boise State University, and Ehlers owns a small business in Boise. They met at a book club and began dating in 2003. Ehlers proposed to Latta in 2004, and, in 2006, the couple celebrated a meaningful but not legally binding wedding ceremony in Boise. (Latta Dec. 11, Dkt. 48.) In 2008, the couple legally married in California soon after that state began allowing same-sex marriages. Neither Latta nor Ehlers had been married before, but they decided to marry because they wanted to spend the rest of their lives together. Although Ehlers never thought she would have children, she is now step-mother to Latta's children and step-grandmother to Latta's grandchildren. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (373 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 Both Latta and Ehlers attest that Idaho's refusal to recognize their marriage complicates and demeans their lives. They worry about the ramifications of aging without a legally recognized marriage, a reality that implicates taxes, inheritance, Social Security benefits, hospital visitation rights, and medical decision-making. Although they can file a married tax return for federal purposes, Idaho law requires them to file single state tax returns. Latta and Ehlers plan to seek professional assistance to prepare their state tax returns. The couple also is unsure about the status of property they acquired during their marriage because a quitclaim deed purporting to grant each of them title to community property with right of survivorship may not be enforceable absent a legally recognized marriage. Ehlers explains, it is painful that the state we love, the place that we have made our home, where we vote and pay taxes, where we have our businesses, where we participate, and volunteer, and donate, treats us as second-class citizens. (Ehlers Dec. 18, Dkt. 49.) 2. Lori Watsen and Sharene Watsen Lori and Sharene Watsen reside in Boise, where Sharene works as a physician assistant and Lori works as a social worker. Friends introduced the Watsens in 2009, and the two have been together as a couple since their first date. In 2011, the couple married in a small legal ceremony in New York. They held a larger celebration of their marriage at their church in Boise during the summer of 2012. The Watsens both describe their marriage as an important symbol of their love for and commitment to each other, not least because they both grew up in deeply religious families that value the institution greatly. Also in 2012, the Watsens decided to start a family. Their son was conceived by artificial insemination in September 2012, and Sharene gave birth in May 2013. Although they requested that Lori be listed as their son's parent, his birth certificate lists only Sharene. In the summer of 2013, the Watsens hired an attorney to assist Lori's adoption of their son. An Ada County magistrate judge dismissed the adoption petition and, despite their valid New York marriage, deemed Lori to be Sharene's unmarried cohabitating, committed partner without legal standing to adopt Sharene's son. (S. Watsen Dec. Ex. C., Dkt. 513 at 5.) The couple felt demeaned by the magistrate judge's decision, and Lori plans to again petition for adoption. 4 *5 Like Latta and Ehlers, the Watsens are concerned about the many complications Idaho's Marriage Laws add to their family life. Lori Watsen must create a new medical power of attorney every six months, for, without one, she cannot consent to medical treatment for her son. In addition, the Watsens have the same tax and community property problems as Latta and Ehlers. Above all, Lori Watsen wants their son to have the same pride in us, as his parents, that I feel for my parents, who have been married for 50 years. (L. Watsen Dec. 36, Dkt. 50.) 3. Shelia Robertson and Andrea Altmayer Shelia Robertson and Andrea Altmayer live together in Boise. Altmayer works as a massage therapist. Robertson, who has advanced training in communicative disorders, teaches deaf students at a local school district and works part-time as a video relay interpreter. The two have been in a committed, exclusive relationship since friends introduced them 16 years ago. If Idaho allowed same-sex marriages, they would have married years ago. Although the couple considered marrying outside Idaho, they did not wish to incur the expense of traveling away from their family and friends only to return home with a marriage not recognized in Idaho. Even so, Robertson and Altmayer decided to start a family. Altmayer became pregnant through artificial insemination and gave birth to their son in 2009. Similar to the Watsens' experience, Robertson and Altmayer completed birth certificate forms identifying Altmayer as the mother and Robertson as a parent. But the birth certificate lists only Altmayer as their son's parent. The lack of a legally recognized parental relationship between Robertson and her son means she cannot consent to medical treatment for him and otherwise prevents the couple from equally sharing numerous parental responsibilities. Robertson and Altmayer worry their son will not have the security and stability afforded by two legal parents. Both are deeply concerned their son will grow up believing there is something wrong with his family because his parents cannot marry. On November 6, 2013, Robertson and Altmayer submitted a marriage license application to the Ada County Recorder. The application was denied only because Robertson and Altmayer are both women. Demeaned but undeterred by this experience, the couple wishes to be married so that other people understand that we are a family, in a permanent life- long relationship. (S. Robertson Dec. 15, Dkt. 53.) 4. Amber Beierle and Rachael Robertson Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (374 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 Amber Beierle and Rachael Robertson both grew up, reside, and wish to marry in Idaho. Beierle holds a M.S. in Applied Historical Research and works for the Idaho State Historical Society. Roberston is an Army veteran, having served a tour of duty in Iraq from June 2004 to November 2005. During her military service, Robertson earned the Army Combat Medal and the Soldier Good Conduct Medal. She was honorably discharged from the Army in 2008 and now manages a warehouse in Boise. *6 Beierle and Robertson met in 2006 and began dating in 2010. The two have been in a committed, exclusive relationship since Valentine's Day, 2011. They bought a house together in December of 2012. The couple plans to raise children, but they worry their children will grow up thinking something is wrong with their family because Beierle and Robertson cannot marry. Although they considered marrying in another state, they wish to be married in their home state of Idaho. And, even if they were married in another state, Idaho law would prevent them from being buried together at the Idaho Veterans Cemetery because they are a same-sex couple. Beierle and Robertson also applied for a marriage license on November 6, 2013. Although they otherwise qualify for a marriage license, the Ada County Recorder's Office denied the application because they are both women. This experience demeaned Beierle and Robertson. They want to have the same freedom as opposite-sex couples to marry the person [they] love and to share the benefits and responsibilities of marriage and in the recognition and protections of marriage. (Beierle Dec. 19, Dkt. 54.) C. The Defendants Defendant C.L. Butch Otter is the Governor of the State of Idaho. He is sued in his official capacity. As Governor, Defendant Otter is responsible for upholding and ensuring compliance with the Idaho Constitution and statutes enacted by the Legislature, including the marriage laws at issue in this case. See Idaho Const. Art. IV, 5 (The supreme executive power of the state is vested in the governor, who shall see that the laws are faithfully executed.). Defendant Christopher Rich is Recorder of Ada County, Idaho. He is sued in his official capacity. As the Ada County Recorder, Defendant Rich has the authority to issue marriage licenses to any party applying for the same who may be entitled under the laws of this state to contract matrimony. Idaho Code 32401. On November 6, 2013, an authorized deputy of Defendant Rich denied the Unmarried Plaintiffs' applications for marriage licenses because, as same-sex couples, they were not entitled to contract matrimony in Idaho. Early in this case, the State of Idaho moved and was permitted to intervene as a defendant. (Dkt. 38.) The State, by and through the Idaho Attorney General, asserts a strong, independent interest in defending Idaho's laws against constitutional attack. Throughout this litigation, the State has joined in Recorder Rich's motions and briefing. D. Requested Relief Plaintiffs bring suit under 42 U.S.C. 1983, alleging that Governor Otter and Recorder Rich acted in their official capacities and under color of law to deprive them of rights protected by the Fourteenth Amendment to the United States Constitution. 5 They request a declaration that all Idaho laws prohibiting same-sex marriage or barring recognition of valid out-of-state same-sex marriages violate the due process and equal protection guarantees in the Fourteenth Amendment. They also request a permanent injunction against enforcement of any Idaho law that would prohibit or withhold recognition of same-sex marriages. These claims constitute a facial constitutional attack on the validity of any Idaho law that prohibits same-sex marriage in Idaho or withholds recognition of same-sex marriages validly contracted in another state. 6 III. STANDARD OF REVIEW *7 [1] The parties seek judicial resolution of this case via three motions: Defendant Recorder Rich and Defendant Intervenor Idaho's motion to dismiss for failure to state a claim (Dkt. 43) 7 , Plaintiffs' motion for summary judgment (Dkt. 45), and Defendant Governor Otter's motion for summary judgment (Dkt. 57). Typically, motions to dismiss are evaluated under different standards than motions for summary judgment. But here, the motion to dismiss must be treated as a motion for summary judgment. Recorder Rich and DefendantIntervenor Idaho's motion to dismiss attaches and references numerous documents outside the pleadings. These documents include five articles on marriage and parenting. (Dkt. 306 to 10.) The parties vigorously dispute the meaning and import of the sociological literature on these points. Because the Court considered the literature submitted with the motion to dismiss, the Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (375 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d); see also Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 92122 (9th Cir.2004) (finding a represented party's submission of extra-pleading materials justified treating motion to dismiss as motion for summary judgment). The Court will evaluate all pending motions under the summary judgment standard. A party is entitled to summary judgment when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). When parties submit cross-motions for summary judgment, the court must review the evidence submitted in support of each cross-motion and decide each on its own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). IV. ANALYSIS The Court has considered the parties' briefs and supporting materials, as well as oral arguments presented during a May 5, 2014 hearing on all dispositive motions. As a preliminary matter, the Court finds the Supreme Court's summary decision in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), does not prevent lower federal courts from deciding the constitutional issues in this case. With respect to Plaintiffs' due process claim, Idaho's Marriage Laws are subject to strict scrutiny because they infringe upon Plaintiffs' fundamental right to marry. Under the Equal Protection Clause, Idaho's Marriage Laws are subject to heightened scrutiny because they intentionally discriminate on the basis of sexual orientation. The Court finds that Idaho's Marriage Laws do not survive any applicable level of constitutional scrutiny and therefore violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The reasons for these findings are discussed below. A. Baker v. Nelson [2] Defendants initially argue that Baker v. Nelson is binding precedent that shields Idaho's Marriage Laws from constitutional attack. Baker was an appeal to the United States Supreme Court from a decision of the Supreme Court of Minnesota. The Minnesota court held that neither Minnesota law nor the United States Constitution required the issuance of marriage licenses to a same-sex couple. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). Based on a brief review of then-existing due process and equal protection jurisprudence, the Minnesota court rejected the plaintiffs' due process and equal protection claims. On appeal, the Supreme Court summarily dismissed the case for want of a substantial federal question. Baker, 409 U.S. at 810, 93 S.Ct. 37. *8 [3] [4] [5] Summary dismissals have real but narrow precedential value. A summary disposition affirms only the judgment of the court below, and no more may be read into [the] action than was essential to sustain the judgment. Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 18283, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citations omitted). The dismissal prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided in the action. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). When a case raises the precise issue addressed by a summary dismissal, the lower courts are bound ... until such time as the [Supreme] Court informs them that they are not. Hicks v. Miranda, 422 U.S. 332, 34445, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation omitted). Defendants correctly note that Baker necessarily decided the precise issues presented in this case and that the Supreme Court has not expressly overruled Baker in the four decades after it was summarily decided. Although Baker speaks to the precise issues presented in this case, there is good reason to find its guidance no longer binding. The Supreme Court has instructed that inferior federal courts had best adhere to the view that if the Court has branded a question as insubstantial, it remains so except when doctrinal developments indicate otherwise. Hicks, 422 U.S. at 344, 95 S.Ct. 2281 (emphasis added). Defendants make forceful arguments about the binding nature of summary dismissals, but they overlook the doctrinal developments exception stated in Hicks. In fact, Defendants cite only one case that analyzes the doctrinal developments since Baker, and that case was decided before Windsor. See Jackson v. Abercrombie, 884 F.Supp.2d 1065, 108586 (D.Haw.2012) (concluding pre-Windsor doctrinal developments did not overcome Baker ). The Supreme Court's due process and equal protection jurisprudence has developed significantly in the four decades after Baker, and, in last year's Windsor decision, the Court dramatically changed tone with regard to laws that withhold marriage benefits from same-sex couples. In 1972, the Supreme Court had not recognized gender as a quasi-suspect classification. See Frontiero v. Richardson, 411 Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (376 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). 8 Nor had the Court applied heightened equal protection scrutiny to gender- based classifications. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). It was not until 1996 that the Supreme Court recognized laws based on a bare ... desire to harm homosexuals were not rationally related to any legitimate government interest. Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (quoting U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). Since Baker, the Supreme Court's equal protection jurisprudence has expanded, scrutinizing both gender and sexual orientation discrimination in more exacting ways. In 1972, states could constitutionally criminalize private, consensual sex between adults of the same sex based on nothing more than moral disapproval of the homosexual lifestyle. See Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). But, just 11 years ago, the Court reversed course and held the government could not lawfully demean [homosexuals'] existence or control their destiny by making their private sexual conduct a crime. Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. Lawrence reaffirmed that the Due Process Clause protects fundamental rights of personhood, definitively establishing that individuals do not forfeit their rights because of their sexual orientation. Id. At the very least, Romer and Lawrence strongly suggest that state- approved discrimination based on sexual orientation is now a substantial federal question. *9 Although courts formerly were reluctant to find these developments sufficient to overcome Baker, e.g., Jackson, 884 F.Supp.2d at 108586, much has changed in just the last year. In June of 2013, the Supreme Court struck down the federal man-woman definition of marriage because, when applied to legally married same-sex couples, it demean[ed] the couple, whose moral and sexual choices the Constitution protects. Windsor, 133 S.Ct. at 2694. In doing so, the Supreme Court affirmed the decision of the United States Court of Appeals for the Second Circuit, which expressly held that Baker did not foreclose review of the federal marriage definition. Windsor v. United States, 699 F.3d 169, 17880 (2d Cir.2012) (Even if Baker might have had resonance ... in 1971, it does not today.). Also last summer, the Supreme Court declined to review a decision invalidating California's voter-approved man-woman marriage definition. Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). The Supreme Court dismissed the appeal not because Baker rendered the question insubstantial, but because the law's supporters lacked standing to defend it after the State of California decided not to. These are doctrinal developments sufficient to overcome the narrow precedential effect of a summary dismissal. Since Windsor, no federal court has ruled to the contrary. In fact, every court to consider Baker in the context of a post-Windsor challenge to laws against same-sex marriage has found that doctrinal developments since 1972 provide ample reason to reach the merits. Kitchen v. Herbert, 961 F.Supp.2d 1181, 119495 (D.Utah 2013); Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014); Bostic v. Rainey, 970 F.Supp.2d 456, 46870 (E.D.Va.2014); McGee v. Cole, F.Supp.2d , , 2014 WL 321122 at *810 (S.D.W.Va. Jan. 29, 2014); Bourke v. Beshear, F.Supp.2d , 2014 WL 556729 (W.D.Ky. Feb. 12, 2014); De Leon v. Perry, 975 F.Supp.2d 632, 64649 (W.D.Tex.2014); DeBoer v. Snyder, 973 F.Supp.2d 757, 773 n. 6 (E.D.Mich.2014). Consistent with the findings of its sister courts, the Court concludes that Baker is not controlling and does not bar review of Plaintiffs' claims. B. Due Process [6] The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees fair process and places substantive limits on the States' authority to constrain individual liberty. Many of our most cherished liberties originate in the Bill of Rightsamong them the freedoms of speech, press, and religion; the right to be free from unreasonable searches and seizures; and the right to just compensation when the government takes private property. Initially, the Bill of Rights guarded against only actions by the federal government. But, upon the adoption of the Fourteenth Amendment, a more comprehensive protection came into force: No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive a person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws. U.S. Const. amend. XIV, 1. Now, most of the Bill of Rights applies to the states by virtue of the Fourteenth Amendment. See McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 303436, 3050, 177 L.Ed.2d 894 (2010) (chronicling selective incorporation of the Bill of Rights and incorporating the Second Amendment). *10 The Supreme Court also has recognized that the liberty guaranteed by the Fourteenth Amendment extends beyond the Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (377 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 8 Bill of Rights to the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). [7] [8] An individual's protected liberties include certain fundamental rights of personhood. These rights center on the most significant decisions of a lifetimewhom to marry, whether to have children, and how to raise and educate children. Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. These choices are protected because they implicate associational rights ... of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). [9] Ordinarily, laws do not offend the Due Process Clause when they are rationally related to a legitimate government interest. Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). But laws that implicate fundamental rights are subject to strict scrutiny, surviving only if narrowly tailored to a compelling government interest. Reno v. Flores, 507 U.S. 292, 30102, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The essential issue for due process purposes is whether Idaho's Marriage Laws infringe on Plaintiffs' fundamental rights. The decisions of the United States Supreme Court confirm that the right to marry is of fundamental importance for all individuals. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). 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 and women. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). 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. Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Against this background, Plaintiffs wish to exercise their fundamental right to marry. Defendants acknowledge that the fundamental right to marry exists, but they argue it does not extend to same-sex couples. Rather, Defendants contend Plaintiffs seek recognition of a new fundamental right, the right to same-sex marriage. [10] [11] [12] Defendants appropriately note that the Supreme Court has explicitly cautioned against finding new fundamental rights. [T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Glucksberg, 521 U.S. at 72021, 117 S.Ct. 2258 (quotations and citations omitted). A careful description of the newly asserted liberty interest also is necessary. Id. at 721, 117 S.Ct. 2258. Moreover, the Nation's history, legal traditions, and practices ... provide the crucial guideposts for responsible decisionmaking, that direct and restrain [the Court's] exposition of the Due Process Clause. Id. (quotation and citation omitted). *11 The Glucksberg decision is instructive on how the Supreme Court evaluates new fundamental rights. There, the plaintiffs asserted the State of Washington's ban on causing or aiding another person's suicide violated a constitutionally protected right to choose the manner of one's own death. The Supreme Court surveyed the history of the law regarding suicide, concluding [t]he history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. Id. at 728, 117 S.Ct. 2258. Given this largely unbroken tradition, the Court declined to recognize a new constitutionally protected right to suicide or assisted suicide. The Supreme Court then upheld Washington's assisted suicide ban because the ban rationally related to Washington's legitimate interest in preserving human life. The restraint exercised in Glucksberg is not warranted here. Although marriage is not mentioned in the Bill of Rights, the Supreme Court has uniformly treated marriage as an established fundamental right. A long line of cases recognize marriage as a fundamental right, variously describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), of privacy, Griswold, 381 U.S. at 486, 85 S.Ct. 1678, and of association, M.L.B., 519 U.S. at 116, 117 S.Ct. 555. This exalted status among personal rights is based on the recognition that marriage involv[es] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.... Casey, 505 U.S. at 851, 112 S.Ct. 2791. In fact, Glucksberg cites the right to marry as one of the well- Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (378 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 9 established fundamental rights. 521 U.S. at 720, 117 S.Ct. 2258. Because the right to marry is fundamental, the Supreme Court has repeatedly invalidated laws that infringe upon it. In the pathmarking case of Loving v. Virginia, our Nation's highest court found unconstitutional a Virginia statute banning interracial marriages. 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Similar to the Idaho Marriage Laws challenged here, Virginia's anti-miscegenation laws prohibited the issuance of marriage licenses to interracial couples and further forbade attempts to evade the ban by marrying out-of-state. Loving, 388 U.S. at 46, 87 S.Ct. 1817. Violation of these Virginia's law was a criminal offense punishable by imprisonment for up to five years. Id. at 5, 87 S.Ct. 1817. Regardless of the historical precedent for such laws, the Supreme Court made clear that the freedom to marry or not marry[ ] a person of another race resides with the individual and cannot be infringed by the State. Id. at 12, 87 S.Ct. 1817. The Supreme Court reaffirmed the fundamental and individual character of the right to marry in Zablocki v. Redhail. There, the Court reviewed a Wisconsin law that required residents to seek court permission to marry if a Wisconsin resident had children not in the resident's custody. Zablocki, 434 U.S. at 375, 98 S.Ct. 673. Under that law, permission to marry would be granted only if the resident could show full compliance with any child- support obligations and further demonstrate children covered by a support order were not then and [were] not likely thereafter to become public charges. Id. (quoting Wis. Stat. 245.10 (1973)). Despite the State's interest in child welfare, the Supreme Court invalidated the statute because it unnecessarily impinge[d] on the right to marry in a context where Wisconsin had numerous other means for advancing its interest. Id. at 38889, 98 S.Ct. 673. *12 Next, in 1987, the Supreme Court struck down a Missouri prison regulation that restricted inmates' right to marry. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Under the regulation, an inmate could marry only with approval from the superintendent of prisons, permission that would be granted under compelling circumstances such as pregnancy or the birth of an illegitimate child. Id. at 82, 107 S.Ct. 2254. While prisoners are subject to a variety of restrictions on their constitutional liberties, the Court found that [m]any important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. Id. at 95, 107 S.Ct. 2254. Recognizing the emotional, public, and spiritual significance of marriage, as well as the many government benefits that flow from marital status, the Court struck down the prison regulation. According to the Supreme Court, these incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate penological objectives. Id. at 9596, 107 S.Ct. 2254. More recently, the Supreme Court confirmed that gay and lesbian individuals do not forfeit their constitutional liberties simply because of their sexual orientation. Lawrence, 539 U.S. 558, 123 S.Ct. 2472. The Court observed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id. at 574, 123 S.Ct. 2472. Emphasizing that these are personal rights, the Court concluded [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. Id. (emphasis added). And, less than one year ago, the Supreme Court struck down the federal Defense of Marriage Act's man-woman definition of marriage because it amounted to unconstitutional interference with the equal dignity of same-sex marriages recognized by some states. Windsor, 133 S.Ct. at 2693. The message of these cases is unmistakableall individuals have a fundamental right to marry. Defendants argue these cases do not apply here because the Supreme Court has recognized a fundamental right to only heterosexual marriage. Relying on Glucksberg, the Defendants characterize this case as one involving the right to same-sex marriage, a right lacking both historical precedent and constitutional protection. Defendants' argument suffers from three critical flaws. This new right argument attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms. Loving was no more about the right to interracial marriage than Turner was about the prisoner's right to marry or Zablocki was about the dead-beat dad's right to marry. Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case. While Glucksberg demands that new rights be carefully described and deeply rooted, the cases above demonstrate that the Supreme Court has long recognized an unembellished right to marry. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (379 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 10 *13 On the other hand, the holding in Glucksberg followed directly from the unbroken pattern of state laws and legal traditions disapproving suicide and assisted suicide. 521 U.S. at 71011, 117 S.Ct. 2258 (Indeed, opposition to and condemnation of suicideand, therefore, assisting suicide are consistent and enduring themes of our philosophical, legal, and cultural heritages.). Given that context, it was a truly novel proposition to say that the concept of liberty substantively protects a person's freedom to end his or her life. Finding the policy of condemning and discouraging suicide both deeply rooted and nearly universal in contemporary society, the Court declined to recognize a new fundamental right. Id. at 728, 117 S.Ct. 2258. The context here is dramatically different. Far from a uniform pattern of laws rejecting the practice, a fast-growing number of states now recognize that same-sex and opposite-sex marriages are equal. And, while Glucksberg makes much of the consistent legal, medical, and social policies against suicide, the Court is not aware of a similarly pervasive policy against marriage. To the contrary, the Defendants make abundantly clear that marriage is a life-affirming institution something to be encouraged because it provides stability not only for couples, but also for children. Finally, and most critically, the Supreme Court's marriage cases demonstrate that the right to marry is an individual right, belonging to all. See Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. 9 Defendants offer no other answer. In their effort to avoid the question, Defendants commit the same analytical mistake as the majority in Bowers v. Hardwick, the decision that declined to announce a fundamental right to engage in homosexual sodomy. 478 U.S. 186, 191, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence, 539 U.S. at 577, 123 S.Ct. 2472. The crucial mistake in Bowers was that the majority narrowed and thus fail[ed] to appreciate the extent of the liberty at stake. Lawrence, 539 U.S. at 567, 123 S.Ct. 2472. For that reason, the Supreme Court in Lawrence concluded Bowers was not correct when it was decided, and it is not correct today. Id. at 577, 123 S.Ct. 2472. Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights to make intimate personal choices as heterosexual individuals enjoy, but that judicial attempts to parse those rights out of existence will be met with a harsh rebuke. The Supreme Court's marriage cases recognize an individual's fundamental right to marry. The right transcends one's race, confinement to prison, or ability to support children. Lawrence unequivocally cements marriage as among the constitutionally protected liberties shared by homosexual and heterosexual persons alike. The teaching of these cases is that the fundamental right to marry cannot be narrowed in the manner Defendants urge. Idaho's Marriage Laws render the Plaintiff couples legal strangers, stripping them of the choice to marry or remain married in the state they call home. Therefore, Idaho's Marriage Laws impermissibly infringe on Plaintiffs' fundamental right to marry. 10 C. Equal Protection *14 [13] [14] Plaintiffs also claim Idaho's Marriage Laws violate the Equal Protection Clause of the Fourteenth Amendment. That clause commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting U.S. Const., amend. XIV., 1). The equal protection guarantee is in tension with the reality that laws almost inevitably draw lines between groups of people, advantaging some and disadvantaging others. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The Supreme Court has developed tiers of judicial scrutiny in an effort to reconcile this practical reality with the constitutional principle. The level of scrutiny depends on the characteristics of the disadvantaged group or the rights implicated by the classification. [15] [16] [17] [18] [19] A law that neither targets a suspect class nor burdens a fundamental right is subject to rational basis scrutiny. Heller v. Doe, 509 U.S. 312, 319 21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The Court in such cases presumes the law is valid unless the challenger can show the difference in treatment bears no rational relation to a conceivable government interest. Id. A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality. Id. at 321, 113 S.Ct. 2637 (quoting Dandridge Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (380 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 11 v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). But, even under this most deferential standard, the State may not rely on a classification whose relationship to the asserted goal is so attenuated as to render the decision arbitrary or irrational. Cleburne, 473 U.S. at 446, 105 S.Ct. 3249. For this reason, courts insist on knowing the relation between the classification adopted and the object to be attained. Romer, 517 U.S. at 632, 116 S.Ct. 1620; see also Heller, 509 U.S. at 321, 113 S.Ct. 2637 (explaining the classification must find some footing in the realities of the subject addressed by the legislation). [20] Strict scrutiny lies at the other end of the spectrum. This level of scrutiny applies when a legislative classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Such classifications are presumed unconstitutional and will survive strict scrutiny only when the government can show the law is narrowly tailored to a compelling governmental interest. See Zablocki, 434 U.S. at 388, 98 S.Ct. 673. [21] [22] Between the extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). These classifications are considered quasi-suspect, and survive heightened constitutional scrutiny only if the State shows the classification is substantially related to an important governmental objective. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). Discrimination against a quasi-suspect class, such as women, must be supported by an exceedingly persuasive justification and not hypothesized or invented post hoc in response to litigation. United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). The purpose of this heightened level of scrutiny is to ensure quasi-suspect classifications do not perpetuate unfounded stereotypes or second-class treatment. Id. at 534, 116 S.Ct. 2264. *15 The Court's principal tasks here are to determine the form of discrimination at issue and next identify and apply the appropriate level of scrutiny. 1. Form of Discrimination [23] Plaintiffs argue that Idaho's Marriage Laws discriminate against individuals on the basis of sex and sexual orientation. The Defendants counter that Idaho's Marriage Laws do not prefer one sex over the other, nor do they target gay and lesbian persons. [24] A person's gender and sexual orientation are two sides of the same coin. As one court aptly observed, sex and sexual orientation are necessarily interrelated, as an individual's choice of romantic or intimate partner based on sex is a large part of what defines an individual's sexual orientation. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 996 (N.D.Cal.2010). However, the Supreme Court has not equated sexual orientation discrimination and sex discrimination despite several opportunities to do so. See Romer, 517 U.S. at 635, 116 S.Ct. 1620 (We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.); Lawrence, 539 U.S. at 583, 123 S.Ct. 2472 (O'Connor, J., concurring) ([T]he conduct targeted by this law is conduct that is closely correlated with being homosexual.); Windsor, 133 S.Ct. at 2695 (The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State.). Considering the Supreme Court's treatment of this issue, this Court finds that sex discrimination and sexual orientation discrimination are distinct phenomena. In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 439 (2008); see also Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014) (Common sense dictates that the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened scrutiny on that basis.). Idaho's Marriage Laws allow heterosexuals, but not homosexuals, to marry and thus clearly discriminate on the basis of sexual orientation. This distinction does not prefer one gender over the othertwo men have no more right to marry under Idaho law than two women. In other words, Idaho's Marriage Laws are facially gender neutral and there is no evidence that they were motivated by a gender discriminatory purpose. See In re Kandu, 315 B.R. 123, 143 (Bankr.W.D.Wash.2004) (The test to evaluate whether a facially gender-neutral statute discriminates on the basis of sex is whether the law can be traced to a discriminatory purpose.) (internal quotations omitted). 2. Level of Scrutiny Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (381 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 12 [25] Plaintiffs advance two reasons for applying heightened scrutiny to Idaho's Marriage Laws. First, they argue sexual orientation is subject to heightened scrutiny under recent precedent of the United States Court of Appeals for the Ninth Circuit. Second, they claim that classifications based on sexual orientation are constitutionally suspect. a. Ninth Circuit Precedent *16 Plaintiffs first argue that heightened scrutiny applies to sexual orientation discrimination by virtue of the Ninth Circuit's recent decision in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir.2014). The Defendants claim SmithKline is distinguishable on its facts. The State and Recorder Rich argue SmithKline is a case about discriminatory jury selection and, as such, its holding is limited to cases involving intentional sexual orientation discrimination based on stereotypes. In a similar vein, Governor Otter claims SmithKline is inapplicable because Idaho's Marriage Laws are not motivated by animus toward homosexuals. Defendants misread the case. SmithKline involved a constitutional challenge to a preemptory strike of a prospective juror during jury selection for a trial between two pharmaceutical companies, SmithKline Beecham and Abbott Laboratories. The parties' dispute centered on the pricing of HIV medications, which is a subject of considerable controversy in the gay community. Id. at 474. During the jury selection process, Juror B was the only self-identified gay member of the jury pool. Immediately after Abbott exercised its first peremptory strike against Juror B, SmithKline's counsel raised a Batson challenge that the trial judge denied. 11 The Ninth Circuit concluded that Abbott's challenge amounted to purposeful sexual orientation discrimination before answering the dispositive question: Whether classifications based on sexual orientation are subject to heightened scrutiny. To answer this question, the Ninth Circuit looked to the Supreme Court's equal protection analysis in Windsor. Although Windsor does not announce the level of scrutiny, the SmithKline court considered what the Supreme Court actually did and determined the Supreme Court's analysis was inconsistent with pure rational basis review. Id. at 481. SmithKline 's examination of Windsor is authoritative and binding upon this Court. According to SmithKline, Windsor's constitutional analysis exhibits none of the hallmarks of rational basis review. First, the Supreme Court ignored the hypothetical justifications for the Defense of Marriage Act and instead carefully considered the law's actual purpose. Id. at 48182 (citing Windsor, 133 S.Ct. at 269394). Second, the critical part of Windsor begins by demanding that Congress's purpose justify disparate treatment of the group. Id. at 482 (quoting Windsor, 133 S.Ct. at 2693). Wholly inconsistent with rational basis review, this demand neither defers to legislative choices nor presumes a law is constitutional. Compare Williamson v. Lee Optical, 348 U.S. 483, 487, 75 S.Ct. 461, 99 L.Ed. 563 (1955) ([I]t is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.) with Windsor, 133 S.Ct. at 2696 (The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.). Concluding its analysis, the Ninth Circuit held that Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. SmithKline, 740 F.3d at 483. *17 This holding is unqualified and logically preceded the court's analysis of the Batson challenge. Indeed, the Batson analysis otherwise would have been foreclosed because the Ninth Circuit's pre-Windsor equal protection precedent held that sexual orientation discrimination is subject to rational basis review. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir.1990), abrogation recognized by SmithKline, 740 F.3d at 483. Reexamining its precedent in light of Windsor, the SmithKline court found that earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor. 740 F.3d at 483. Only after the Ninth Circuit found Juror B belonged to a group subject to heightened scrutiny did it then proceed with its Batson analysis. In this Court's view, SmithKline establishes a broadly applicable equal protection principle that is not limited to the jury selection context. Also, contrary to Defendants' contentions, SmithKline does not limit the application of heightened scrutiny to instances of proven animus or irrational stereotyping. SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes, but it does so in the context of the Batson analysisnot in the discussion about Windsor. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (382 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 13 Id. at 48486. With respect to Windsor, the court's holding is undeniably broad: Windsor's heightened scrutiny applies to classifications based on sexual orientation. Id. at 483. Had the Ninth Circuit intended to limit its holding to cases involving animus or irrational stereotyping, it easily could have done so. Instead, it found Windsor to be dispositive of the question of the appropriate level of scrutiny in this case, a case that fits into the broader category of classifications based on sexual orientation. Id. at 480. Just as the Ninth Circuit was bound by [Windsor 's] controlling, higher authority when deciding SmithKline, this Court is bound to apply Windsor's heightened scrutiny to Idaho's Marriage Laws. 12 b. Suspect class [26] Apart from SmithKline, Plaintiffs also contend Idaho's Marriage Laws are subject to heightened scrutiny because classifications based on sexual orientation are constitutionally suspect. The Court need not dissect this argument because the Supreme Court has accepted it by implication. If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have applied rational basis scrutiny in Windsor. But, as recognized in SmithKline, the Supreme Court applied heightened scrutiny. Indeed, the Supreme Court affirmed the Second Circuit without questioning (or even discussing) the lower court's express holding: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non- obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority. *18 Windsor v. United States, 699 F.3d 169, 18182 (2d Cir.2012), aff'd United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). The Second Circuit's holding was both approved and essential to the scrutiny the Supreme Court applied in Windsor. Had the Supreme Court disagreed with the Second Circuit, it would not have applied heightened scrutiny. It is not necessary to repeat the Second Circuit's analysis, for that analysis is implicit in both Windsor and SmithKline. D. Idaho's Marriage Laws Fail Constitutional Scrutiny Because Idaho's Marriage Laws impermissibly infringe on Plaintiffs' fundamental right to marry, the Laws are subject to strict due process and equal protection scrutiny. But SmithKline directs the Court to apply heightened equal protection scrutiny to laws that discriminate on the basis of sexual orientation. Idaho's Marriage Laws do not withstand this heightened scrutiny. [27] At a minimum, the Court must examine Idaho's Marriage Laws and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second- class status. SmithKline, 740 F.3d at 483. Based on Windsor, and as explained in SmithKline, four principles guide the Court's equal protection analysis. The Court (1) looks to the Defendants to justify Idaho's Marriage Laws, (2) must consider the Laws' actual purposes, (3) need not accept hypothetical, post hoc justifications for the Laws, and (4) must decide whether the Defendants' proffered justifications overcome the injury and indignity inflicted on Plaintiffs and others like them. See id. at 48183. [28] These principles most closely correspond to the intermediate scrutiny test applied to quasi-suspect classifications based on gender and illegitimacy. See Windsor v. United States, 699 F.3d 169, 18588 (2d Cir.2012) (applying intermediate scrutiny). In those cases the burden of justification is demanding and it rests entirely on the State. United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). While intermediate scrutiny permits classifications designed to remedy economic injuries or promote equality, the test focuses on differential treatment and denial of opportunity to ensure that discriminatory laws do not create or perpetuate the legal, social, and economic inferiority of the affected class. Id. at 53334, 116 S.Ct. 2264. 1. The Actual Purpose of Idaho's Marriage Laws [29] The Court begins its inquiry into the actual purpose of Idaho's Marriage Laws by examining their text. See Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 926 (9th Cir.2004). The plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a result demonstrably at Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (383 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 14 odds with the intention of its drafters. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). The meaning of Idaho's Marriage Laws could not be plainer. *19 The only recognized domestic legal union in Idaho is a marriage between a man and a woman. Idaho Const. Art. III, 28. A marriage can be licensed and solemnized only if it is a civil contract between a man and a woman.... Idaho Code 32201. All marriages contracted outside of Idaho are valid in Idaho except marriages that violate Idaho's public policy. Id. 32209. The statutory list of marriages that violate Idaho's public policy is nonexclusive, but it specifically identifies only two categoriessame- sex marriages, and marriages entered into ... with the intent to evade the prohibitions of Idaho's Marriage Laws. Id. The parties do not cite, and the Court does not find, a published Idaho case holding that anything other than same- sex marriage violates the public policy set forth in Idaho Code 32209. Each of these laws unambiguously expresses a singular purposeto exclude same-sex couples from civil marriage in Idaho. The Laws' legislative history makes their exclusionary purpose even clearer. Idaho Code Sections 32201 and 32 209 were both amended in the mid1990's, at a time when no state recognized same-sex marriage. In 1993, however, the Hawaii Supreme Court became the first court in the country to strike down a statutory same-sex marriage ban. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 61 (1993) (remanding for consideration of justifications for the ban). After Baehr, over half of the states passed laws prohibiting same-sex marriage. See Bourke v. Beshear, F.Supp.2d , n. 1, 2014 WL 556729, at *1 n. 1 (W.D.Ken. Feb. 12, 2014) (listing laws). In addition, the United States Congress reacted in 1996 by passing the Defense of Marriage Actthe law found partially unconstitutional in Windsor. The present versions of Sections 32201 and 32209 also took effect in 1996. The Idaho Legislature amended 32201 in 1995 to add, among other language, the words between a man and a woman. 1995 Idaho Sess. Laws, ch. 104, 3. In addition to this definitional change, the 1995 amendment abolished common law marriage. Id. 35. Indeed, abolition of common law marriage appears to be the amendment's primary purpose, as its legislative history does not include a single direct reference to the between a man and a woman provision. The Compiler's Notes for the 1995 amendment do, however, include the following: It is the intent of this act to promote the stability and best interests of marriage and the family. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization and of vital interest to society and the state. Common-law marriages entered into in this state on and after January 1, 1996, will no longer be recognized. 1995 Idaho Sess. Laws, ch. 104, 1. The stated intent and apparent purpose of the amendment to Idaho Code 32201 was to promote family stability, morality, and a traditional view of the marriage institution. *20 Section 32201's manwoman marriage definition took effect on January 1, 1996. A few months later, the Idaho Legislature amended 32209 to include a public policy against same-sex and evasive marriages. 1996 Idaho Sess. Laws, Ch. 331, 1. From Idaho's territorial days until the amendment's approval in 1996, Idaho law codified the long-established place of celebration rule, whereby [a]ll marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state. Idaho Code Ann. 32209 (1983); see also Hilton v. Stewart, 15 Idaho 150, 96 P. 579, 583 (1908) (This statute merely announces the general rule of law, as we understand it, that any contract which is a valid marriage according to the law of the place where the contract is made is valid everywhere.). But in 1996, the Legislature ended Idaho's tradition of comity toward out-of-state marriages. At the time, Speaker of the House Simpson voiced his concern that Hawaii might recognize same-sex marriages and leave Idaho with no choice but to reinforce its current policy or recognize same-sex marriage by default. Relating to Recognition of Foreign Marriages: Minutes for Feb. 15, 1996 Meeting on H.B. 658 Before the H. Judiciary, Rules, & Admin. Comm., 53d Legis. Sess., 2d Reg. Sess. 2 (Idaho 1996). According to Representative William Sali, there was no time to delay or study the matter because Hawaii would dictate Idaho's marriage policy if the Legislature did not act. Id. Despite opposition from religious leaders, civil liberties advocates, and both homosexual and heterosexual citizens, the bill easily passed the House and Senate before arriving on Governor Batt's desk. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (384 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 15 With the Governor's signature, the law took immediate effect on March 18, 1996. This swift transition from bill to governing law was due to a legislative declaration of emergency that accompanied the substantive changes to 32 209. 1996 Idaho Sess. Laws, Ch. 331, 2. The Legislature's sense of urgency was vindicated when, later that year, a Hawaii trial court rejected every proffered justification for Hawaii's same-sex marriage ban and enjoined Hawaii from denying marriage license applications solely because of the applicants' sexual orientation. Baehr v. Miike, 1996 WL 694235 (Haw.Cir.Ct. Dec. 3, 1996), superseded by statute, Haw.Rev.Stat. 5721 (1998). Thus, the purpose of the 1996 amendment to Idaho Code 32209 was to buttress Idaho's traditional definition of marriage against changes in other states' marriage laws. By 2003, the highest courts in Vermont and Massachusetts had ruled that their respective state constitutions precluded the denial of marriage benefits on the basis of sexual orientation. Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999); Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003). These developments again prompted legislative reactions across the country. This time, however, the Idaho Legislature sought to place on the ballot a proposed amendment to the Idaho Constitution that would prevent an Idaho court from reaching a result similar to those in Vermont and Massachusetts. Efforts to do so in 2004 and 2005 failed to garner the necessary two-thirds majority in the Idaho Senate. But, in 2006, a third measure was introduced in the House, debated, and this time passed both chambers. H.R.J. Res. 2, 58th Leg., 2d Reg. Sess. (Idaho 2006). The legislative approval allowed the following question to appear on the November 2006 general election ballot: *21 Shall Article III, of the Constitution of the State of Idaho be amended by the addition of a new Section 28, to provide that a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state? (Dkt. 578 at 2.) The public debate over the proposal, which became known as Amendment 2, centered on tradition, family, and equality. See generally (Dkt. 574; Dkt. 577 at 616, 1820, 35; Dkt. 578 at 5, 42128.) Supporters of the amendment argued that traditional marriage between a man and a woman formed a foundation for stable and nurturing families. Both sides debated the relative quality of opposite-sex versus same-sex parenting. Those opposed to the amendment emphasized that same-sex couples could be just as loving and committed to each other and their children as opposite-sex couples. Some framed the debate in explicitly religious terms, but faith leaders spoke out on both sides. Others characterized the matter as a secular issue, often citing the need for equality among citizens. On November 7, 2006, Idaho's electorate took to the ballot box, and 63.3% voted in favor of Amendment 2. (Dkt. 57 8 at 8.) The amendment immunized Idaho's man-woman marriage definition from attack in the State's courts or legislative bodies. As a result, nothing short of a successful federal constitutional challenge or a superseding amendment to Idaho's Constitution would be sufficient to change Idaho's Marriage Laws. Because over 280,000 Idahoans voted for Amendment 2, it is not feasible for the Court to infer a particular purpose or intent for the provision. But, as Plaintiffs argue, it is obvious that Idaho's Marriage Laws purposefully discriminate on the basis of sexual orientation. Suggesting that the laws' discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho's traditional civil marriage institution. But preserving the traditional institution of marriage is just a kinder way of describing the State's moral disapproval of same-sex couples. Lawrence, 539 U.S. at 601, 123 S.Ct. 2472 (Scalia, J., dissenting). Although the Court finds Idaho's Marriage Laws were motivated, in part, by important governmental interests, their history demonstrates that moral disapproval of homosexuality was an underlying, animating factor. As with DOMA, the practical effect of Idaho's Marriage Laws is to impose a disadvantage, a separate status, and so a stigma on a class of people based solely on their sexual orientation. Windsor, 133 S.Ct. at 2693. The question now is whether any of the Defendants' asserted justifications overcome the inequality imposed upon Plaintiffs and others like them. 2. Asserted Justifications for Idaho's Marriage Laws All Defendants assert that Idaho's Marriage Laws relate to the State's interest in maximizing child welfare but differ on how the meansdenying marital status to same-sex couples serve this child-welfare end. Governor Otter primarily contends the definition fosters a traditional, child-centric marriage culture and otherwise promotes optimal family structures. The State and Recorder Rich claim the definition Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (385 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 16 allows Idaho to channel its limited fiscal resources toward naturally procreative relationships. *22 Aside from child welfare, the Governor and amicus curiae Cornerstone Family Council of Idaho assert Idaho's Marriage Laws serve additional, important interests. They maintain that the Laws further the State's interest in federalism. Governor Otter also claims Idaho's Marriage Laws serve the State's interests in accommodating religious freedom, avoiding civic strife, and affirming democratic consensus. The Court addresses each asserted justification below. a. Child Welfare [30] Governor Otter contends that Idaho's Marriage Laws advance the State's interest in protecting children. Children are indeed both vulnerable and essential to the perpetuation of society. And, although the Court agrees that the State has a compelling interest in maximizing child welfare, the link between the interest in protecting children and Idaho's Marriage Laws is so attenuated that it is not rational, let alone exceedingly persuasive. [31] Governor Otter observes that man-woman marriage is an ancient and traditional child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults. 13 (Dkt. 572 at 10.) The Governor emphasizes this conjugal view of marriage encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children. (Id.) And, the Governor asserts, Idaho's Marriage Laws reinforce this traditional, child-centric norm by offering marital status only to couples with the natural capacity to procreate. The Governor claims that recognizing same-sex marriages would radically redefine the institution by imposing a consent-based marriage regime. Without the normative guidance of traditional marriage, the Governor fears that the social institution of marriage will erode. This deinstitutionalization of marriage could cause parents to turn away from the self-sacrifice that, the Governor asserts, is a hallmark of Idaho's traditional, child-centric regime. The Governor also claims that Idaho's Marriage Laws further the State's interest in child-welfare by promoting optimal family structures. Citing to volumes of sociological studies, the Governor advances the general proposition that two parents in a low-conflict marriage constitute the optimal child-rearing environment. See generally (Dkt. 578 at 103 128; 579 through 5711 at 150.) Plaintiffs do not dispute this general conclusion. (Lamb Dec., Dkt. 47 1720.) But the Governor further argues that children uniquely benefit from parental gender complementaritythat is, parenting by parents of the opposite sex. (Dkt. 90 at 3.) Plaintiffs counter by emphasizing the broad consensus among sociological experts that gender of the two parents makes no difference for a child's well-being. (Lamb Dec., Dkt. 47 3236.) Thus, the parties fundamentally disagree on whether same- sex parenting negatively affects a child's well-being. 14 The best that can be said for Defendants' position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. (Id. 35 41.) But the Court need noteven if it could at the summary judgment stageresolve this sociological debate. The parties' debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho's wholesale prohibition of same-sex marriage. That link is faulty for at least four reasons. *23 First, civil marriage in Idaho is and has long been a designedly consent-based institution. The law speaks of marriage as a civil contract ... to which the consent of parties capable of making it is necessary. Idaho Code 32201. True, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship. Windsor, 133 S.Ct. at 2718 (Alito, J., dissenting). But Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision or simply seek a tax break. That such a crass objective would be sufficient to obtain a marriage license does not mean marriage is a cheap convenience. Instead, it means that the value of marriage derives from a place beyond the law's reach. Important as the child-centered vision of marriage is, Idaho's consent-based marriage regime does not require heterosexual couples to accept or follow this norm. Whatever the beliefs or intentions of the parties, there is nothing conjugal or child- centric about the formality of obtaining a marriage license. The Governor offers only conjecture to support his critical pointthat allowing Plaintiffs or people like them to marry risks vitiating the child-centered norm. There is no evidence that allowing same-sex marriages will have any effect on when, how, or why opposite-sex couples choose to marry. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (386 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 17 Second, Idaho does not condition marriage licenses or marital benefits on heterosexual couples' ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate. Indeed, as the State and Recorder Rich observe, [a]ttempting to restrict civil marriage to couples who intend to have children would demand governmental inquiry into sensitive matters of personal privacy and raise insuperable, or at a minimum very significant, privacy-based constitutional concerns. (Dkt. 73 at 17.) To claim that civil marriage is somehow tied to a governmental interest in procreation is to threaten the legitimacy of marriages involving post- menopausal women, infertile individuals, and individuals who choose to refrain from procreating. Bostic v. Rainey, 970 F.Supp.2d 456, 47879 (E.D.Va.2014). [32] Third, Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents. Under Idaho law, everyone from multiple divorcees, dead-beat dads, see Zablocki, 434 U.S. 374, 98 S.Ct. 673, to prison inmates, see Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), may marry, as long as they marry someone of the opposite sex. Yet Plaintiffssix of whom have children or step-childrenare deemed unworthy of marital benefits because they might be less fit parents according to an inconclusive body of scientific literature. To the extent this amounts to a presumption of parental unfitness, it bears emphasis that a similar presumption was found unconstitutional over 40 years ago. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (holding due process entitles unwed fathers to a hearing before they could be deemed unfit parents). Constitutionality aside, sexual orientation [is] wholly irrelevant to whether a person can adopt children in Idaho. In re Adoption of Doe, Idaho , P.3d , , 2014 WL 527144, at *6 (Idaho February 10, 2014). In a state where the privilege of becoming a child's adoptive parent does not hinge on a person's sexual orientation, it is impossible to fathom how hypothetical concerns about the same person's parental fitness possibly could relate to civil marriage. *24 Finally, and most importantly, the Governor's child welfare rationales disregard the welfare of children with same-sex parents. It is undisputed that poverty and social isolation [are] associated with maladjustment [in children], and adequate resources support[ ] healthy adjustment. (Lamb Dec., Dkt. 47 18.c.) It is also clear that [m]arriage can yield important benefits for children and families, including state and federal legal protections, economic resources, family stability, and social legitimacy. These benefits are equally advantageous for children and adolescents in families headed by same-sex and different-sex couples. (Id. 48.) Although the State and Recorder Rich dismiss same-sex households as statistically insignificant, (Dkt. 73 at 12 n. 3), no Defendant suggests that the State's child welfare interest does not extend to the children in these households. In this most glaring regard, Idaho's Marriage Laws fail to advance the State's interest because they withhold legal, financial, and social benefits from the very group they purportedly protectchildren. As Justice Kennedy observed, a law that withdraws these benefits humiliates ... children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Windsor, 133 S.Ct. at 2694. Failing to shield Idaho's children in any rational way, Idaho's Marriage Laws fall on the sword they wield against same-sex couples and their families. b. Focusing Governmental Resources on Couples with Biological Procreative Capacity [33] The State and Recorder Rich articulate a somewhat different link between child welfare and Idaho's prohibition of same-sex marriage. They propose that Idaho's interest in child welfare is served by directing the State's limited resources to opposite-sex couples. The State is justified in reserving marital benefits for these couples, the argument continues, because only they have the natural ability to procreate. Pointing to the public costs of divorce, single parenting, and tax breaks for married couples, Recorder Rich and the State argue that the State can avoid some of these costs by not allowing same-sex couples to marry. Even in rational basis cases, the Supreme Court has rejected the argument that cost-cutting is a sufficient reason for denying benefits to a discrete group. Plyler v. Doe, 457 U.S. 202, 229, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (invalidating a Texas statute that denied free public education to children of undocumented immigrants). When Arizona threatened to deny health care benefits to the same-sex domestic partners of state employees, the Ninth Circuit affirmed the district court's rejection of the Arizona's cost-saving rationale. Diaz v. Brewer, 656 F.3d 1008, 1013 (9th Cir.2011). In both cases, Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (387 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 18 the chief constitutional problem was that the states' attempts to cut costs fell on an arbitrarily selected group. *25 Because heightened scrutiny applies here, the Court must focus on the Laws' actual purposes. The Court finds that defending the State's fiscal resources is not an actual purpose of any law challenged in this case. Aside from the cost of putting Amendment 2 on the ballot, (Dkt. 577 at 3), the record indicates that the only public costs referenced during the debate over the measure were the cost of defending it in litigation, (Dkt. 578 at 5), and the cost of driving businesses away from Idaho with a State-approved message of intolerance. (Id. at 74.) Even assuming cost-cutting was an actual purpose for Idaho's Marriage Laws, the State and Rich do not explain how avoiding the public cost of same-sex marriages improves child welfare. The Laws do not create new benefits for naturally procreative couples; instead, they arbitrarily withhold benefits from a statistically insignificant class of households with children. (Dkt. 73 at 12 n. 3.) There is no showing that forbidding same-sex marriages makes naturally procreative couples more likely to marry, let alone stay married. Nor is there any evidence that the State has any compunction about expending its limited resources on non- procreative or unstable heterosexual marriages. Defendants' only explanation is that a law does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (internal quotation omitted). While this may be the case when a court reviews economic legislation under the rational basis standard, e.g., U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), more precision is necessary where, as here, the law discriminates on the basis of sexual orientation. See SmithKline, 740 F.3d at 48182. If Idaho's Marriage Laws seek to improve child welfare by focusing limited public resources on heterosexual marriages, they do so in a patently arbitrary manner. They are at once grossly overinclusiveby expending the State's limited resources on unstable marriages and married couples with no intent or ability to procreateand dramatically underinclusiveby denying those resources to children whose parents happen to be homosexual. The burden of this imprecision falls on families that seek the same stability that Idaho claims to incentivize. This is not fiscal prudence; it is a State- endorsed message of unworthiness that does not withstand constitutional scrutiny. c. Federalism [34] [35] Governor Otter and amicus curiae Cornerstone Family Council of Idaho claim that federalism principles require the Court to uphold the State's traditional authority to define marriage. Defendants also make two more specific state's rights arguments. In particular, Governor Otter claims that Idaho's policy against recognizing out-of-state same- sex marriages must be accepted under the well-established public policy exception to the Full Faith and Credit Clause. See Nevada v. Hall, 440 U.S. 410, 422, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979). Defendants also claim that Section 2 of the federal Defense of Marriage Act, codified at 28 U.S.C. 1738C, authorizes Idaho to refuse recognition of same-sex marriages. All of these arguments fail to consider that neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment. Saenz v. Roe, 526 U.S. 489, 508, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). *26 It is true federalism favors preserving a state's right to choose policies uniquely suited to the preferences of its citizens. By creating a system with both state and federal governments, the Framers [of the Constitution] thus ensured that powers which in the ordinary course of affairs, concern the lives, liberties, and properties of the people were held by governments more local and more accountable than a distant bureaucracy. Nat'l Fed'n of Indep. Bus. v. Sebelius, U.S. , 132 S.Ct. 2566, 2578, 183 L.Ed.2d 450 (2012) (quoting The Federalist No. 45, at 293 (J. Madison)). Thus, a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting). Windsor upheld this principle by invalidating the federal man-woman marriage definition, in part, because of its unusual deviation from the federal government's usual deference to state domestic relations laws. 133 S.Ct. at 2693. [36] [37] However, States are not the sole intended beneficiaries of federalism. Bond v. United States, U.S. , 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269 (2011). Federalism has another dimension, one that secures to citizens the liberties that derive from the diffusion of sovereign power. Coleman v. Thompson, 501 U.S. 722, Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (388 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 19 759, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (Blackmun, J., dissenting). Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. Bond, 131 S.Ct. at 2364 (citation omitted). Federalism is not just a bulwark against federal government overreach; it is also an essential check on state power. For that reason, federalism is no answer where, as here, individuals claim their state government has trampled their constitutional rights. Indeed, Windsor also recognizes the transcendent quality of individual constitutional rights, even when those rights conflict with a state's traditional sovereign authority. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving.... Windsor, 133 S.Ct. at 2691 (emphasis added). As other courts have recognized, Windsor's citation to Loving for this proposition is a disclaimer of enormous proportions. Bishop v. U.S., 962 F.Supp.2d 1252, 1279 (N.D.Okla.2014). In Loving, Virginia's sovereign authority over marital relations could not save the State's anti- miscegenation laws. And, just as in Loving, Idaho's right to regulate domestic relations is subject to the paramount rights of its citizens. That is the way of our federal system. d. Accommodating Religious Freedom, Avoiding Civic Strife, and Assuring Social Consensus *27 [38] Finally, Governor Otter argues that Idaho's Marriage Laws should be upheld because they serve the related goals of supporting religious liberty, avoiding the potential for religion-centered conflicts, and affirming a prevailing social consensus on marriage. Analogizing to the Supreme Court's days-old decision in Schuette v. BAMN, U.S. , 134 S.Ct. 1623, L.Ed.2d (2014), the Governor argues that a state's voters can ban preferences and that courts should let[ ] the people make difficult policy choices through democratic means. (Dkt. 93 at 2.) Yet the Governor acknowledges, as he must, this is not to say the State can invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution. (Dkt. 572 at 53.) The Governor's argument concerning religious liberty is myopic. No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture. But not all religions share the view that opposite- sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. (S. Watsen Dec. 13, Dkt. 51.) To the extent Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho. By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices. Kitchen v. Herbert, 961 F.Supp.2d 1181, 1214 (D.Utah 2013). [39] Likewise, a desire to protect or maintain a particular social consensus does not withstand constitutional scrutiny. A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be. Lucas v. FortyFourth Gen. Assembly of Colo., 377 U.S. 713, 73637, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). The Supreme Court's decision in Schuette says nothing to the contrary. Unlike this case, Schuette involved the Michigan electorate's vote to stop the racially discriminatory, albeit arguably beneficial, practice of affirmative action. 134 S.Ct. at 1630 (The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.). Far from establishing a state's right to violate the Fourteenth Amendment by majority vote, Schuette stands for the unremarkable proposition that voters can and should be allowed to end their state's discriminatory policies. That principle has no application in a case, like this one, where voters imposed a purposefully discriminatory policy that undermines a fundamental right. Rather, the dispositive principle in this case is that fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (389 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 20 (1943). The Supreme Court has endorsed this principle again and again. As Justice Robert Jackson so eloquently put it: *28 The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation. Railway Express Agency v. New York, 336 U.S. 106, 112113, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (Jackson, J., concurring). This principle resonates today, as 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case. 15 Considering many of the same arguments and much of the same law, each of these courts concluded that state laws prohibiting or refusing to recognize same-sex marriage fail to rationally advance legitimate state interests. This judicial consensus was forged from each court's independent analysis of Supreme Court cases extending from Loving through Romer, Lawrence, and Windsor. The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage. Because Idaho's Marriage Laws do not withstand any applicable form of constitutional scrutiny, the Court finds they violate the Fourteenth Amendment to the United States Constitution. V. CONCLUSION The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho's Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho's Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love. The Defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children. Without proof, the Defendants' justifications echo the unsubstantiated fears that could not prop up the anti-miscegenation laws and rigid gender roles of days long past. Then as now, it is the duty of the courts to apply the law to the facts in evidence. Here, the facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny. The Fourteenth Amendment guarantees of due process and equal protection lie at the core of our constitutional system. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today's decision. [T]he history of our Constitution ... is the story of the extension of constitutional rights and protections to people once ignored or excluded. United States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Slow as the march toward equality may seem, it is never in vain. ORDER *29 The Court GRANTS Plaintiffs' Motion for Summary Judgment (Dkt. 45). Defendant Governor Otter's Motion for Summary Judgment (Dkt. 57) and Defendant Recorder Rich and DefendantIntervenor Idaho's Motions to Dismiss (Dkt. 30, 41, 43) are DENIED. The Court hereby DECLARES that Idaho's Marriage Laws are unconstitutional because they violate Plaintiffs' rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The Court PERMANENTLY ENJOINS the State of Idaho and its officers, employees, agents, and political subdivisions from enforcing Article III, 28 of the Idaho Constitution; Idaho Code Sections 32201 and 32209; and any other laws or regulations to the extent they do not recognize same- sex marriages validly contracted outside Idaho or prohibit Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (390 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 21 otherwise qualified same-sex couples from marrying in Idaho. This injunction shall take effect at 9:00 a.m. MDT on May 16, 2014. IT IS SO ORDERED. Footnotes 1 Bowers v. Hardwick, 478 U.S. 186, 211, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Blackmun, J., dissenting), overruled by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). 2 Six states have legalized same-sex marriage through court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, and New Mexico); eight have done so through legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, and Vermont); and three have legalized same-sex marriage by popular vote (Maine, Maryland, and Washington). See Kitchen v. Herbert, 961 F.Supp.2d 1181, 1192 n. 4 (D.Utah 2013). The District of Columbia also legalized same-sex marriage through legislation. Id. 3 The Idaho Code is replete with provisions referencing husband and wife or the traditional, opposite-sex definition of marriage. See, e.g., id. 32202 (referring to the male and the female parties to a marriage contract); 32304 (requiring couple to declare they take each other as husband and wife); 32901 to 929 (relating to Husband and WifeSeparate and Community Property). The Court need not survey these scattered provisions because, as discussed in Part II.D below, Plaintiffs' requested relief is broad enough to cover any source of Idaho law that would prohibit or refuse to recognize same-sex marriages, wherever contracted. 4 After the dismissal of Lori Watsen's adoption petition, the Idaho Supreme Court held Idaho's adoption statutes plainly allow a woman to adopt her same-sex partner's children. In re Adoption of Doe, Idaho , P.3d , , 2014 WL 527144, at *6 (Idaho Feb. 10, 2014). The court made clear it would not imply ... restrictions based on Idaho's marital statutes and that sexual orientation was wholly irrelevant to our analysis. Id. 5 There is no dispute that Plaintiffs have standing to bring this lawsuit or, considering the relief requested, that Defendants are proper parties. 6 The undersigned United States Magistrate Judge has jurisdiction over this matter by virtue of all parties' express written consent. 28 U.S.C. 636(c); see also D. Idaho Loc. Civ. R. 72.1(a)(1) (authorization to decide civil cases with the parties' consent), (Dkt. 40) (consents). 7 Recorder Rich first moved to dismiss this case on January 9, 2014. (Dkt. 30.) After the Court permitted the State to intervene, the State filed a motion to dismiss that adopted all arguments made in Recorder Rich's initial motion. (Dkt. 41.) Plaintiffs thereafter filed an Amended Complaint, (Dkt. 42), which Recorder Rich and the State jointly moved to dismiss based on the reasons stated in their earlier motions to dismiss. (Dkt. 43.) 8 November 22, 1971less than a year before the summary decision in Bakerwas the first time the Supreme Court struck down a law because it unconstitutionally discriminated on the basis of gender. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Overruling the Idaho Supreme Court, Reed held that Idaho's statutory preference for male estate administrators was the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.... Id. at 76, 92 S.Ct. 251. 9 No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 966 (N.D.Cal.2010); see also HernandezMontiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000) (reviewing literature on the essential link between sexual and personal identity). 10 For this reason, Idaho's Marriage Laws are subject to strict due process and equal protection scrutiny. See Zablocki, 434 U.S. at 388, 98 S.Ct. 673. But the Laws do not survive under the lower level of equal protection scrutiny applied in Part IV.D below. Consequently, the Laws would fail strict scrutiny. 11 In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court found that the Equal Protection Clause limits the privilege of exercising peremptory strikes when selecting a jury. Although Batson considered strikes based on race, its underlying constitutional principle now extends to classes of persons subject to intermediate or strict equal protection scrutiny. J.E.B. v. Alabama, 511 U.S. 127, 143, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (Parties may ... exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to rational basis' review.). 12 Currently, Nevada's laws prohibiting same-sex marriage are before the Ninth Circuit and Oregon's are before the District of Oregon. The Attorneys General of Nevada and Oregon both recently concluded that heightened scrutiny under SmithKline eviscerates the legal bases for their defenses. (Dkt. 772 at 5; Dkt. 773 at 22.) Consequently, both Attorneys General have refused to defend their state's marriage laws. 13 The Governor does not argue that Idaho's Marriage Laws advance traditional marriage for tradition's sake alone. But it bears repeating that the [a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. Heller v. Doe, 509 Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (391 of 518) Latta v. Otter, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 22 U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Moreover, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Lawrence v. Texas, 539 U.S. 558, 57778, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Stevens, J., dissenting)). 14 Two federal district courts have held bench trials that focused on this question. Perry v. Schwarzenegger, 704 F.Supp.2d 921 (2010); DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D.Mich.2014). Both found that the overwhelming scientific consensus favors the no differences view. 15 Kitchen v. Herbert, 961 F.Supp.2d 1181, (D.Utah 2013); Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014); Bourke v. Beshear, F.Supp.2d , 2014 WL 556729 (W.D.Ky. Feb. 12, 2014); Bostic v. Rainey, 970 F.Supp.2d 456 (E.D.Va.2014); Lee v. Orr, F.Supp.2d , 2014 WL 683680 (N.D.Ill. Feb. 21, 2014); De Leon v. Perry, 975 F.Supp.2d 632 (W.D.Tex.2014); Tanco v. Haslam, F.Supp.2d , 2014 WL 997525 (M.D.Tenn. Mar. 14, 2014); DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D.Mich.2014); Henry v. Himes, F.Supp.2d , 2014 WL 1418395 (S.D.Ohio Apr. 14, 2014); Baskin v. Bogan, F.Supp.2d , 2014 WL 1568884 (S.D.Ind. Apr. 18, 2014). End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (392 of 518) Lee v. Orr, Not Reported in F.Supp.2d (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 683680 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division. Brenda Lee and Lee Edwards; Patricia Tucker and Ingrid Swenson; Elvie Jordan and Challis Gibbs; Ronald Dorfman and Kenneth Ilio, on behalf of themselves and all others similarly situated, Plaintiffs, v. David Orr, in his official capacity as Cook County Clerk, Defendant. Case No. 13cv8719 | Filed February 21, 2014 Attorneys and Law Firms Camilla Bronwen Taylor, Christopher R. Clark, Lambda Legal Defense & Education Fund, Inc., Harvey Michael Grossman, John A. Knight, Karen A. Sheley, Roger Baldwin Foundation of ACLU, Inc., Jeremy Mark Press, Jordan Mitchell Heinz, Kirkland & Ellis LLP, Kay L. Dawson, M. David Weisman, Marc Oliver Beem, Zachary J. Freeman, Miller Shakman & Beem LLP, Chicago, IL, for Plaintiffs. Kent Stephen Ray, Paul Leo Fangman, Sisavanh Baccam Baker, Chicago, IL, for Defendant. Opinion MEMORANDUM OPINION AND ORDER Sharon Johnson Coleman, United States District Judge *1 On December 24, 2013, plaintiffs filed a motion for summary judgment [36] asserting that the Illinois ban on same-sex marriage frustrates the individual and class plaintiffs' desire to marry in their home state by denying them equal protection under the law and infringing on their fundamental right to marry. Defendants, David Orr and the intervenor, Illinois Attorney General Lisa Madigan, do not oppose entry of summary judgment in this matter. For the reasons stated herein, this Court grants the motion. Background The Illinois Marriage and Dissolution of Marriage Act authorizes marriage only between a man and a woman. 750 ILCS 5/201. The statute also states that marriage between same-sex individuals is contrary to the public policy of this State. 750 ILCS 5/213.1. On November 5, 2013, the Illinois General Assembly passed Senate Bill 10 (SB10) amending the Illinois marriage statute to allow same-sex couples to marry. However, SB10 did not immediately go into effect because the Illinois Constitution, article IV, 10, stipulates that [a] bill passed after May 31 shall not become effective prior to June 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date. The General Assembly did not vote in favor of an earlier effective date and therefore the plaintiffs initially asked this Court to intervene on behalf of a class of gay and lesbian couples where one or both partners were terminally ill and thus would be permanently denied the right to marry. The Court granted that motion on December 10, 2013. Now, plaintiffs come before the Court on behalf of all gay and lesbian couples in Cook County asking this Court to find the Marriage Act that remains in effect until June 1, 2014, unconstitutional on its face as an infringement of the fundamental right to marry. Legal Standard Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non- moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether to grant summary judgment, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See id. at 255. Discussion There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs' fundamental right to marry. Indeed, the defendant and intervenor have joined in plaintiffs' motion, with the caveat the defendant David Orr is bound to follow the law in Illinois. Since the parties agree that marriage is a fundamental right available to all individuals and should not Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (393 of 518) Lee v. Orr, Not Reported in F.Supp.2d (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 be denied, the focus in this case shifts from the we can't wait for terminally ill individuals to why should we wait for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN'T WAIT 74 (1964). *2 This Court has no trepidation that marriage is a fundamental right to be equally enjoyed by all individuals of consenting age regardless of their race, religion, or sexual orientation, and the public policy of this State has been duly amended to reflect that position. The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. The cases that plaintiffs rely on in support of their motion were in a significantly different posture. In all of those cases, the plaintiffs sought to have state statutes and constitutional provisions or proposed amendments banning same sex marriage found unconstitutional either as applied to individual couples or to the state as a whole, and they faced significant opposition to their efforts. Here, the complaint affects only one county and there is no opposition. In fact, the Cook County Clerk filed a brief in support of plaintiffs' claims. Intervenor Lisa Madigan, Illinois Attorney General, provides additional support for plaintiffs' position in a brief filed on behalf of the State of Illinois. 1 Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment's Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit. There is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry. Accordingly, the provisions of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/201 (authorizing marriages between a man and a woman), 750 ILCS 5/212(a)(5) (prohibiting marriage between 2 individuals of the same sex), and 750 ILCS 5/213.1 (stating that same-sex marriages are contrary to the public policy of the state), violate the Equal Protection Clause by discriminating against individuals based on their sexual orientation. No genuine issue of material fact exists for a trier-of-fact to resolve therefore this Court grants summary judgment in favor of the plaintiffs. IT IS SO ORDERED. Footnotes 1 Presumably, Attorney General Madigan in her official capacity is representing the position of all counties in Illinois and not just the residents of Cook County. End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (394 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 2957671 Only the Westlaw citation is currently available. United States District Court, W.D. Kentucky, at Louisiville. Timothy LOVE, et al., Plaintiffs v. Steve BESHEAR, Defendant. Civil Action No. 3:13CV 750H. | Signed July 1, 2014. Synopsis Background: Two same-sex couples who wished to marry brought action challenging Kentucky's constitutional and statutory provisions that prohibited them from doing so. Holdings: The District Court, John G. Heyburn, II, Senior District Judge, held that: [1] homosexual persons constituted disadvantaged class, justifying application of heightened equal protection scrutiny; [2] homosexual persons constitute a quasi-suspect class for the purposes of equal protection analysis; and [3] Kentucky's constitutional and statutory provisions prohibiting same-sex couples from marrying did not withstand rational scrutiny under Equal Protection Clause. Ordered accordingly. West Codenotes Held Unconstitutional Ky.Const. 233A, KRS 402.005, 402.020(1)(d) Recognized as Unconstitutional 1 U.S.C.A. 7 Validity Called into Doubt KRS 402.040(2), 402.045 Attorneys and Law Firms Dawn R. Elliott, Shannon Renee Fauver, Fauver Law Office, Laura E. Landenwich, Leonard J. Dunman, IV, Louis Paz Winner, Daniel J. Canon, Clay Daniel Walton Adams PLC, Louisville, KY, for Plaintiffs. Gregory L. Monge, Leigh G. Latherow, William H. Jones, Jr., Vanantwerp, Monge, Jones, Edwards & McCann, LLP, Ashland, KY, for Defendant. Opinion MEMORANDUM OPINION AND ORDER JOHN G. HEYBURN II, Senior District Judge. *1 Two same-sex couples who wish to marry in Kentucky have challenged Kentucky's constitutional and statutory provisions that prohibit them from doing so. See KY. CONST. 233A; KY.REV.STAT. ANN. 402.005, .020(1) (d) (West 2014). 1 On February 12, 2014, this Court held that, insofar as these provisions denied state recognition to same- sex couples who were validly married outside Kentucky, they violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Bourke v. Beshear, 3:13CV750H, F.Supp.2d , 2014 WL 556729 (W.D.Ky. Feb. 12, 2014). Since then, these four Plaintiffs have intervened to assert their own related claims. 2 Since the Supreme Court's landmark decision in United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), every federal court to consider state bans on same-sex marriage and recognition has declared them unconstitutional. Most of these courts have done so under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 3 This Court's opinion differs in that it does not determine whether Kentucky's laws interfere with a fundamental right. The Court's chief reason for declining to do so is its careful reading of Windsor, which suggests that the Supreme Court is unwilling and unlikely to view the right Plaintiffs seek to exercise as fundamental under the Constitution. For the reasons that follow, this Court holds that the Commonwealth's exclusion of same-sex couples from civil marriage violates the Equal Protection Clause. I. This case arises from the same history discussed at length in Bourke, which the Court incorporates by reference. See Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (395 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 F.Supp.2d at , 2014 WL 556729, at *12. Briefly, in 1998, Kentucky enacted statutory provisions that defined marriage as between one man and one woman and voided marriages between persons of the same sex. 4 Six years later, in 2004, Kentucky citizens voted to approve the following state constitutional amendment: Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. KY. CONST. 233A. Plaintiffs here are Kentucky citizens who want to marry in Kentucky but are prevented from doing so under these laws because they are same-sex couples. Timothy Love and Lawrence Ysunza reside in Louisville, Kentucky and have lived together for 34 years. On February 13, 2014, they requested a Kentucky marriage license from the Jefferson County Clerk's Office, presenting the requisite identification and filing fees. The Commonwealth refused to issue them a license because they are a same-sex couple. They allege that their inability to obtain a marriage license has affected them in many ways. For example, last summer, Love underwent emergency heart surgery, which had to be delayed in order to execute documents allowing Ysunza access and decision-making authority for Love. As another surgery for Love is imminent, the couple fears what will happen if complications arise. The couple fears that healthcare providers and assisted living facilities may not allow them to be together or care for each other as they age. In addition, the couple has had difficulties with professional service providers; they found out after they purchased their home that their real estate attorney disregarded their request to include survivorship rights in the deed. *2 Maurice Blanchard and Dominique James reside in Louisville, Kentucky and have been together for ten years. On June 3, 2006, they had a religious marriage ceremony in Louisville. On January 22, 2013, they requested a Kentucky marriage license from the Jefferson County Clerk's Office, presenting the requisite identification and filing fees. The Commonwealth refused to issue them a license because they are a same-sex couple. They too have faced challenges as a result. For example, they allege that their neighborhood association will not recognize them as a married couple because Kentucky does not allow them to marry. In addition, their inability to obtain parental rights as a married couple has deterred them from adopting children. They also share a number of Love and Ysunza's concerns. Plaintiffs assert that Kentucky's laws violate the Equal Protection Clause by denying them a marriage license and refusing them the accompanying benefits that opposite-sex spouses enjoy. See Bourke, F.Supp.2d at , 2014 WL 556729, at *23 (describing these benefits in detail). These benefits include but are not limited to: lower income and estate taxes, leave from work under the Family and Medical Leave Act, family insurance coverage, the ability to adopt children as a couple, the participation in critical legal and medical decisions on behalf of one's partner, and, perhaps most importantly, the intangible and emotional benefits of civil marriage. Plaintiffs seek an order declaring the state's pertinent constitutional and statutory provisions unconstitutional and enjoining their enforcement. Although many courts have discussed the Equal Protection and Due Process Clauses in tandem, ultimately, this Court sees this case as more clearly about the imposition of a classification than about the contours of a due process right. The constitutional question is whether a state can lawfully exclude a certain class of individuals, i.e. homosexual persons, from the status and dignity of marriage. The Court will resolve Plaintiffs' claims solely on equal protection grounds. 5 No one disputes that Kentucky's laws treat same-sex couples differently than opposite-sex couples who wish to marry in Kentucky. No one disputes that the equal protection issue before the Court involves purely questions of law. Therefore, Plaintiffs' challenge is properly resolved on summary judgment. The Court must decide whether Kentucky's laws violate Plaintiffs' federal constitutional rights. II. Before reaching the constitutional issues, the Court must address Defendant's preliminary argument that Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), bars Plaintiffs' challenge to the Commonwealth's ban on same-sex marriage. 6 In Baker, the Supreme Court dismissed for want of a substantial federal question a challenge to a Minnesota Supreme Court ruling, which found that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses. Id. (per curiam); see Baker v. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (396 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971). Such a summary dismissal is usually binding precedent, see Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977), unless doctrinal developments indicate that the Court would rule differently now, see Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Today, it is difficult to take seriously the argument that Baker bars Plaintiffs' challenge. *3 Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape. For example, Romer v. Evans invalidated under the Equal Protection Clause a state constitutional amendment that discriminated on the basis of sexual orientation. 517 U.S. 620, 63536, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Shortly thereafter, Lawrence v. Texas invalidated under the Due Process Clause a state law criminalizing homosexual sodomy. 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Most recently, Windsor held unconstitutional Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, which defined marriage and spouse for the purposes of federal law in a way that excluded same-sex partners. 133 S.Ct. at 2695. In Windsor, the Supreme Court ignored the Baker issue in oral argument and in its opinion, even though the Second Circuit had ruled on it. See Windsor v. United States, 699 F.3d 169, 17879 (2d Cir.2012). The Court's silence supports a view that Baker is a dead letter. 7 See Wolf v. Walker, 986 F.Supp.2d 982, , 2014 WL 2558444, at *5 (W.D.Wis.2014). Indeed, since Windsor, almost every court to confront this issue has found that Baker is not controlling. 8 This Court concludes that, due to doctrinal developments, Baker does not bar consideration of Plaintiffs' claims. III. [1] [2] The most difficult part of the equal protection analysis here is determining the proper standard of review. Courts consider two factors. First, courts look to the individual interests affected by the challenged law. Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (quotation omitted). If a statutory classification significantly interferes with the exercise of [a fundamental] right, heightened scrutiny applies. Id. [3] Next, courts examine the nature of the classification imposed by the law. Id. The Supreme Court has fashioned three different levels of scrutiny that correspond to certain statutory classifications. Most statutory classifications receive rational basis review, under which the classification must only be rationally related to a legitimate governmental purpose. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (citation omitted). Under this deferential standard, the law must be upheld if there is any reasonably conceivable set of facts that could provide a rational basis for the classification, and the state need not present any evidence. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). [4] [5] The two heightened tiers of scrutiny demand more exacting judicial review. Under strict scrutiny, the state must show that the statutory classification is narrowly tailored to further a compelling governmental interest[ ]. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). This standard is reserved for certain suspect classifications such as those based on race, alienage, and national origin. See Graham v. Richardson, 403 U.S. 365, 37172, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). For a small number of quasi- suspect classifications, such as gender and illegitimacy, the courts apply intermediate scrutiny, under which the statutory classification must be substantially related to an important governmental objective. Clark, 486 U.S. at 461, 108 S.Ct. 1910. *4 The Court will first consider whether heightened review applies here based on the individual interest affected and will next consider the nature of the statutory classification. A. If the classification imposed by Kentucky's laws significantly interferes with the exercise of a fundamental right, critical examination of the state interests advanced in support of that classification is required, i.e. strict scrutiny applies. Zablocki, 434 U.S. at 383, 98 S.Ct. 673 (quotation omitted). Kentucky's laws prevent all same-sex couples from marrying. This acts as a complete bar to Plaintiffs' ability to marry each other, thus satisfying the significant interference threshold. The only question that remains is whether the right Plaintiffs seek to exercise is a fundamental righta question that neither the Supreme Court nor the Sixth Circuit has answered. [6] [7] The right to marry is a fundamental right situated within the due process right to liberty. See Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (marriage is a fundamental freedom); Skinner v. Oklahoma Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (397 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (marriage is one of the basic civil rights); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (the right to marry is a central part of Due Process liberty); Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888) (marriage is the most important relation in life). The right to marry is a nonenumerated fundamental right; that is, it is not written in the Constitution. Its constitutional significance arises from various protected liberty interests, such as the right to privacy and freedom of association. See Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (marriage is a right of privacy older than the Bill of Rights); M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) ([c]hoices about marriage ... are among associational rights this Court has ranked as of basic importance in our society (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971))). Most of our liberty interestse.g. privacy, autonomy, procreation, travelexist independent of the government. By contrast, civil marriage and the government are inseparable. The state institution of marriagethe issuance of marriage licenses and the distribution of benefits based on marital statushas become an integral component of the fundamental right to marry. It is in this way that civil marriage has become objectively, deeply rooted in this Nation's history and tradition ... and implicit in the concept of ordered liberty. Washington v. Glucksberg, 521 U.S. 702, 72021, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quotations omitted). This atypical tie to the government makes the fundamental right to marry all the more challenging to consider. The three foundational right-to-marry Supreme Court cases are Loving, 388 U.S. 1, 87 S.Ct. 1817, Zablocki, 434 U.S. 374, 98 S.Ct. 673, and, most recently, Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Loving declared Virginia's anti-miscegenation law unconstitutional on both equal protection and due process grounds. See 388 U.S. at 1112, 87 S.Ct. 1817. Zablocki held that a state statute requiring a father to pay his past-due court-ordered child support payments before marrying violated the Equal Protection Clause. See 434 U.S. at 39091, 98 S.Ct. 673. Turner found that prisoners retain their fundamental right to marry. See 482 U.S. at 95, 107 S.Ct. 2254. In that case, the Court's discussion of elements or incidents of marriage suggests that evaluating the application of the fundamental right to marry to this case might involve a discussion of the scope or contours of the right to marry. Id. at 9596, 107 S.Ct. 2254. Under this view, the question before the Court can be distilled to: is same-sex marriage part of or included in the fundamental right to marry, or is it something else altogether? *5 The best evidence of the Supreme Court's thinking on this question is found in Justice Kennedy's recent opinions involving sexual orientation-based classifications, Lawrence, 539 U.S. 558, 123 S.Ct. 2472, and Windsor, 133 S.Ct. 2675. Both of these postdate the Supreme Court's major right-to- marry cases mentioned above. Both can be interpreted to have employed something more than rational basis review, but neither explicitly applied heightened scrutiny, even when intimacy, a right that seems firmly rooted in the fundamental right to privacy and autonomy, was directly at issue. See Lawrence, 539 U.S. at 564, 123 S.Ct. 2472. Just last year, Windsor held Section 3 of DOMA unconstitutional on both equal protection and due process grounds. See 133 S.Ct. at 2695. However, Justice Kennedy's opinion neither articulated a standard of review nor discussed the fundamental right to marry, despite having had the opportunity to do so. Although Windsor did not need to squarely address the application of the fundamental right to marry to reach its holding, Justice Kennedy's choice to remain silent on the question is significant. Justice Kennedy could have much more easily resolved the case by finding that DOMA implicated a fundamental right. If the inquiry here is viewed as a contours-of-the-right question, holding that the fundamental right to marry encompasses same-sex marriage would be a dramatic step that the Supreme Court has not yet indicated a willingness to take. Further, it is a step that is unnecessary to the ultimate result in this action. Given the current posture of relevant constitutional jurisprudence, this Court finds caution here a more appropriate approach to avoid overreaching in its own constitutional analysis. 9 B. The Court next considers whether the statutory classification at issue justifies heightened equal protection scrutiny, that is, whether homosexual persons constitute a suspect class. The Supreme Court has never explicitly decided this question. For the reasons that follow, the Court holds that they do. 10 The Supreme Court's most recent case involving sexual orientation did not discuss this specific issue, nor did it Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (398 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 declare what precise equal protection standard it applied. See Windsor, 133 S.Ct. 2675. In a different context, the Sixth Circuit has suggested that sexual orientation classifications should not receive heightened scrutiny. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir.2012). However, as this Court previously noted, It would be no surprise ... were the Sixth Circuit to reconsider its view. Bourke, F.Supp.2d at , 2014 WL 556729, at *4. The Davis decision applied rational basis review based on a line of cases explicitly relying on Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). The Supreme Court unambiguously repudiated Bowers in its 2003 Lawrence decision. See 539 U.S. at 578, 123 S.Ct. 2472 (Bowers was not correct when it was decided, and it is not correct today.); id. at 575, 123 S.Ct. 2472 ([Bowers's ] continuance as precedent demeans the lives of homosexual persons.). This Court, like other district courts in the Sixth Circuit, concludes that it must now conduct its own analysis to determine whether sexual orientation classifications should receive heightened scrutiny. See, e.g., Bassett v. Snyder, 951 F.Supp.2d 939, 961 (E.D.Mich.2013) (The tarnished provenance of Davis and the cases upon which it relies provides ample reasons to revisit the question of whether sexual orientation is a suspect classification under equal protection jurisprudence.); Obergefell v. Wymyslo, 962 F.Supp.2d 968, 986 (S.D.Ohio 2013). 1. *6 [8] The Supreme Court has identified four factors that determine whether a group of persons is a disadvantaged class for the purposes of equal protection analysis: (1) historical discrimination, see Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986); (2) the ability to contribute to society, see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 44041, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); (3) immutable defining characteristics, see Lyng, 477 U.S. at 638, 106 S.Ct. 2727; and (4) political powerlessness, see id. 11 For the reasons that follow, the Court concludes that gay and lesbian persons are a disadvantaged class. [9] Historical discrimination against homosexual persons is readily apparent and cannot reasonably be disputed. Further, the Court cannot think of any reason why homosexuality would affect a person's ability to contribute to society. No court has concluded otherwise. The remaining two factors, immutability and political powerlessness, are slightly less straightforward. 12 [10] [11] [12] As to immutability, the relevant inquiry is not whether a person could, in fact, change a characteristic, but rather whether the characteristic is so integral to a person's identity that it would be inappropriate to require her to change it to avoid discrimination. Accord Wolf, 986 F.Supp.2d at , 2014 WL 2558444, at *28; see also Griego v. Oliver, 2014NMSC003, 316 P.3d 865, 884 (N.M.2013). For example, strictly speaking, a person can change her citizenship, religion, and even gender. Legislative classifications based on these characteristics nevertheless receive heightened scrutiny because, even though they are in a sense subject to choice, no one should be forced to disavow or change them. That is, these characteristics are an integral part of human freedom entitled to constitutional protection, as is sexual expression. Lawrence, 539 U.S. at 577, 123 S.Ct. 2472. Thus, even if sexual orientation is not strictly immutable, it fits within the realm of protected characteristics fundamental to a person's identity, which satisfies the immutability factor. De Leon v. Perry, 975 F.Supp.2d 632, 651 (W.D.Tex.2014); see Wolf, 986 F.Supp.2d at , 2014 WL 2558444, at *28; Bassett, 951 F.Supp.2d at 960. Finally, the Court finds that homosexual persons are politically powerless within the constitutional meaning of this phrase. In discussing this factor, the Second Circuit noted: The question is not whether homosexuals have achieved political influence and success over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination. Windsor, 699 F.3d at 184. Indeed, if the standard were whether a given minority group had achieved any political successes over the years, virtually no group would qualify as a suspect or quasi-suspect class. A more effective inquiry looks to the vulnerability of a class in the political process due to its size or political or cultural history. See Wolf, 986 F.Supp.2d at , 2014 WL 2558444, at *29. Under this inquiry, Kentucky's laws against homosexual persons are Exhibit A of this powerlessness. 2. *7 Having found that all four factors clearly weigh in favor of heightened scrutiny, the Court must identify which level of heightened scrutiny applies. The Supreme Court has not Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (399 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 fully explained how to distinguish between suspect and quasi- suspect classes. Among the protected classifications, sexual orientation seems most similar to the quasi-suspect classes. Sexual orientation is not obvious in the way that race, a suspect class, is. 13 Cf. Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976) (finding illegitimacy a quasi-suspect class where perhaps in part because illegitimacy does not carry an obvious badge, as race or sex do, ... discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes). It is certainly not more apparent than a person's sex, which is a quasi-suspect class. See Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (applying intermediate scrutiny to gender classifications); Frontiero v. Richardson, 411 U.S. 677, 685 86, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion) (women face pervasive discrimination in part because of the high visibility of the sex characteristic). For this reason, to afford greater protection to sexual orientation than gender would seem inappropriate. In addition, some courts have found sexual orientation similar to gender in various ways. See Windsor, 699 F.3d at 18485 (listing parallels between the status of women at the time the Court found they constituted a suspect class and homosexual individuals today, and finding homosexual persons to be quasi-suspect class based in part on analogy to gender); accord Wolf, 986 F.Supp.2d at , 2014 WL 2558444, at *29; Whitewood v. Wolf, 1:13CV1861, F.Supp.2d , , 2014 WL 2058105, at *14 (M.D.Pa. May 20, 2014). For example, although the acceptance of homosexual persons has improved markedly in recent decades, they still face pervasive, although at times more subtle, discrimination ... in the political arena. Windsor, 699 F.3d at 184 (quoting Frontiero, 411 U.S. at 68586, 93 S.Ct. 1764) (internal quotation marks omitted). [13] [14] This Court finds that homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. Windsor, 699 F.3d at 185. In so doing, it agrees with the Second Circuit and the many other district courts to confront this question. See id.; see, e.g., Whitewood, F.Supp.2d at , 2014 WL 2058105, at *14; Wolf, 986 F.Supp.2d at , 2014 WL 2558444, at *29. Quasi-suspect classes are given intermediate scrutiny. See Clark, 486 U.S. at 461, 108 S.Ct. 1910. Therefore, here, the state must show that the sexual orientation classification imposed by Kentucky's laws is substantially related to an important governmental objective. Id. IV. Ultimately, Kentucky's laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs' challenge under rational basis review. 14 *8 [15] [16] Under this standard, Plaintiffs have the burden to prove either that there is no conceivable legitimate purpose for the law or that the means chosen to effectuate a legitimate purpose are not rationally related to that purpose. Rational basis review, while deferential, is not toothless. Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th Cir.1998) (quoting Mathews, 427 U.S. at 510, 96 S.Ct. 2755). Courts insist on knowing the relation between the classification adopted and the object to be attained. Romer, 517 U.S. at 632, 116 S.Ct. 1620. This ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Id. at 633, 116 S.Ct. 1620. A. [17] The Court will begin with Defendant's only asserted justification for Kentucky's laws prohibiting same-sex marriage: encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate. Perhaps recognizing that procreation-based arguments have not succeeded in this Court, see Bourke, F.Supp.2d at , 2014 WL 556729, at *8, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state's long-term economic stability. These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (400 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 who choose to get married, the number who choose to have children, or the number of children they have. See Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1291 (N.D.Okla.2014) (Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.). The Court finds no rational relation between the exclusion of same-sex couples from marriage and the Commonwealth's asserted interest in promoting naturally procreative marriages. The state's attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in ensuring humanity's continued existence are at best illogical and even bewildering. These arguments fail for the precise reasons that Defendant's procreation argument fails. 15 Numerous courts have repeatedly debunked all other reasons for enacting such laws. The Court can think of no other conceivable legitimate reason for Kentucky's laws excluding same-sex couples from marriage. B. To sidestep these obvious deficiencies, Defendant argues that the state is not required to draw perfect lines in its classifications. By this argument, the state can permissibly deny marriage licenses to same-sex couples but not other couples who cannot or choose not to procreate naturally. *9 [18] It is true that [a] classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality. Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)) (internal quotation marks omitted). However, that Kentucky's laws do not deny licenses to other non-procreative couples reveals the true hypocrisy of the procreation-based argument. Cf. Bishop, 962 F.Supp.2d at 129192 (finding state laws' failure to deny marriage licenses to other nonprocreative couples to be probative of a lack of rationality under the logic of City of Cleburne, 473 U.S. at 448, 105 S.Ct. 3249, as explained by Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001)). Even [r]ationality review has a limit, and this well exceeds it. Id. at 1293. More importantly, the imperfect line-drawing argument assumes incorrectly that the Court bases its ruling on a comparison between same-sex couples and other non- procreative couples. On the contrary, this Court bases its ruling primarily upon the utter lack of logical relation between the exclusion of same-sex couples from marriages and any conceivable legitimate state interest. Any relationship between Kentucky's ban on same-sex marriage and its interest in procreation and long-term economic stability is so attenuated as to render the distinction arbitrary or irrational. City of Cleburne, 473 U.S. at 446, 105 S.Ct. 3249. This Court agrees with the many other federal courts that have found procreation-related arguments incapable of withstanding rational basis review. See, e.g., Baskin v. Bogan, 1:14CV00355RLYTAB, F.Supp.2d , , 2014 WL 2884868, at *13 (S.D.Ind. June 25, 2014); Geiger v. Kitzhaber, 6:13CV01834MC, F.Supp.2d , , 2014 WL 2054264, at *13 (D.Or. May 19, 2014); DeBoer v. Snyder, 973 F.Supp.2d 757, 76465 (E.D.Mich.2014); Bishop, 962 F.Supp.2d at 1291; Kitchen v. Herbert, 961 F.Supp.2d 1181, 121112 (D.Utah 2013). In sum, the laws challenged here violate Plaintiffs' constitutional rights and do not further any conceivable legitimate governmental purpose. Therefore, Kentucky's laws cannot withstand rational basis review. V. In Bourke, this Court devoted considerable thought and effort to addressing the sincere questions and concerns of Kentuckians about the recognition of same-sex marriage. See F.Supp.2d at , 2014 WL 556729, at *1012. All those comments are equally true today. Not surprisingly, the Bourke opinion received significant attention and response, both in support and in opposition. Those opposed by and large simply believe that the state has the right to adopt a particular religious or traditional view of marriage regardless of how it may affect gay and lesbian persons. But, as this Court has respectfully explained, in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted. *10 On the other side, many responses reinforced in very personal ways how unconstitutional discrimination Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (401 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 8 harms individuals and families to their very core. These responses reinforce the notion that invalidating Kentucky's laws validates the enduring relationships of same-sex couples in the same way that opposite-sex couples' relationships are validated. Since this Court's Bourke opinion, the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry. See Kitchen v. Herbert, No. 134178, F.3d , 2014 WL 2868044 (10th Cir. June 25, 2014); Baskin, F.Supp.2d , 2014 WL 2884868; Wolf, 986 F.Supp.2d 982; Whitewood, F.Supp.2d , 2014 WL 2058105; Geiger, F.Supp.2d , 2014 WL 2054264; Latta v. Otter, 1:13CV00482CWD, F.Supp.2d , 2014 WL 1909999 (D.Idaho May 13, 2014); De Leon, 975 F.Supp.2d 632; DeBoer, 973 F.Supp.2d 757; Bostic v. Rainey, 970 F.Supp.2d 456 (E.D.Va.2014). With this opinion, this Court joins their company. Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same- sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples' right to marry seems to be a uniquely free constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future. The Court's holding today is consistent with Bourke, although it requires different relief. The ability to marry in one's state is arguably much more meaningful, to those on both sides of the debate, than the recognition of a marriage performed in another jurisdiction. But it is for that very reason that the Court is all the more confident in its ruling today. Being otherwise sufficiently advised, IT IS HEREBY ORDERED THAT to the extent Ky.Rev.Stat. 402.005 and .020(1)(d) and Section 233A of the Kentucky Constitution deny same-sex couples the right to marry in Kentucky, they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they are void and unenforceable. IT IS FURTHER ORDERED that for all the reasons set forth in this Court's Memorandum Opinion and Orders in this case dated February 28, 2014 and March 19, 2014, the order here is STAYED until further order of the Sixth Circuit. This is a final and appealable order. 1 Sections 402.040(2) and .045 were also challenged, but these provisions address [m]arriage in another state and the recognition and enforceability of [s]ame- sex marriage [solemnized] in another jurisdiction, respectively. KY.REV.STAT. ANN. 402.040(2), .045 (West 2014). These sections do not seem to affect Plaintiffs' right to marry in the Commonwealth. To the extent that they do, this Memorandum Opinion and Order likewise applies to them. 2 On February 26, the Court granted Plaintiffs Timothy Love, Lawrence Ysunza, Maurice Blanchard, and Dominique James's motion to intervene. On the same date, the Bourke order became final. On February 28, the Court stayed its enforcement to allow the state to prepare for compliance, and on March 19, the Court extended the stay pending resolution of the state's appeal before the Sixth Circuit Court of Appeals. On March 21, the Court dismissed Defendant Attorney General of Kentucky Jack Conway from this action upon his motion indicating that he would no longer defend the challenged provisions. As amici curiae, the American Civil Liberties Union of Kentucky submitted a brief supporting the intervening Plaintiffs, and the Family Trust Foundation of Kentucky, Inc. submitted a brief in opposition. 3 The Fourteenth Amendment to the U.S. Constitution provides, in pertinent part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, 1. 4 The pertinent text of these provisions is: 402.005: As used and recognized in the law of the Commonwealth, marriage refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (402 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 9 402.020(1): Marriage is prohibited and void: (d) Between members of the same sex. 402.040(2): A marriage between members of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in KRS 402.045. 402.045:(1) A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky. (2) Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts. KY.REV.STAT. ANN. 402.005.045 (West 2014). 5 Plaintiffs also allege that Kentucky's laws violate (1) the Due Process Clause of the Fourteenth Amendment, (2) the Establishment Clause of the First Amendment, (3) freedom of association as guaranteed by the First Amendment, and (4) the Supremacy Clause of Article VI. 6 This Court's Bourke analysis was limited in scope to the distribution of state benefits to same-sex couples validly married outside Kentucky. See Bourke v. Beshear, 3:13CV750H, F.Supp.2d , , 2014 WL 556729, at *1 (W.D.Ky. Feb. 12, 2014). Therefore, the precedential value of Baker was not at issue. 7 In addition, at the oral argument for Windsor's companion case Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013), Justice Ginsburg interrupted counsel's argument that Baker precluded the Court's consideration of the claim by saying: Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. Transcript of Oral Argument at *12, Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) (No. 12144), available at 2013 WL 1212745. 8 See, e.g., Kitchen v. Herbert, No. 134178, F.3d , , 2014 WL 2868044, at *10 (10th Cir. June 25, 2014); Baskin v. Bogan, 1:14CV00355 RLYTAB, F.Supp.2d , , 2014 WL 2884868, at *6 (S.D.Ind. June 25, 2014); Wolf v. Walker, 986 F.Supp.2d 982, , 2014 WL 2558444, at *6 (W.D.Wis.2014); Whitewood v. Wolf, 1:13CV1861, F.Supp.2d , , 2014 WL 2058105, at *6 (M.D.Pa. May 20, 2014); Geiger v. Kitzhaber, 6:13 CV01834MC, F.Supp.2d , n. 1, 2014 WL 2054264, at *1 n. 1 (D.Or. May 19, 2014); Latta v. Otter, 1:13CV00482CWD, F.Supp.2d , , 2014 WL 1909999, at *9 (D.Idaho May 13, 2014); De Leon v. Perry, 975 F.Supp.2d 632, 648 49 (W.D.Tex.2014); DeBoer v. Snyder, 973 F.Supp.2d 757, 773 n. 6 (E.D.Mich.2014); Bostic v. Rainey, 970 F.Supp.2d 456, 470 (E.D.Va.2014); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1277 (N.D.Okla.2014); Kitchen v. Herbert, 961 F.Supp.2d 1181, 1195 (D.Utah 2013). The only post-Windsor case disallowing a challenge to a state ban on same-sex marriage is Merritt v. Attorney Gen., CIV.A. 1300215 BAJ, 2013 WL 6044329, at *2 (M.D.La. Nov. 14, 2013). The Court does not find Merritt persuasive, as the viability of Baker was not briefed, and the court did not clearly state that it was dismissing on Baker grounds. 9 Under the inapplicable but analogous canon of constitutional avoidance, courts are instructed to exercise judicial restraint to avoid unnecessarily reaching a question of constitutional law. Cf. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346 48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J. concurring) (listing seven situations in which constitutional avoidance is appropriate). 10 This Court's Bourke opinion discussed but did not decide this issue. See F.Supp.2d at , 2014 WL 556729, at *45. 11 Since Windsor, every court to consider these factors has concluded that each applies to homosexual persons. See, e.g., Wolf, 986 F.Supp.2d at , 2014 WL 2558444, at *2729; Whitewood, F.Supp.2d at , 2014 WL 2058105, at *1114. 12 Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Windsor v. United States, 699 F.3d 169, 181 (2d Cir.2012) (citing City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 442 n. 10, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ( [T]here's not much left of the immutability theory, is there? ) (internal quotation omitted)); id. (citing City of Cleburne, 473 U.S. at 472 n. 24, 105 S.Ct. 3249 (Marshall, J., concurring in part and dissenting in part) (The political powerlessness' of a group may be relevant, but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates.) (internal quotation omitted)). 13 Of course, national origin and alienage are often not apparent and yet are suspect classifications. 14 In Bourke, the Court explored the question whether Windsor altered the application of rational basis review in the same-sex marriage context. See Bourke v. Beshear, 3:13CV750H, F.Supp.2d , , 2014 WL 556729, at *67 (W.D.Ky. Feb. 12, 2014). The Court identified two principles from Justice Kennedy's opinion. The first is that the actual Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (403 of 518) Love v. Beshear, --- F.Supp.2d ---- (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 10 purpose of Kentucky's laws is relevant to this analysis to the extent that their purpose and principal effect was to treat two groups differently. Id. at , at *6. The legislative history of Kentucky's constitutional ban clearly demonstrates the intent to permanently prevent the performance of same-sex marriages in Kentucky, which suggests animus against same-sex couples. See id. at n. 15, at *7 n. 15. The second principle is that such a ban demeans one group by depriving them of rights provided for others. Id. at , at *7. Kentucky's laws undoubtedly burden the lives of same- sex couples by excluding them from the institution of marriage and all of its associated benefits. While there is some evidence of animus against homosexual persons, many people likely supported Kentucky's laws based on sincere religious and traditional reasons. Bourke thus concluded that, absent a clear showing of animus, the Court must apply traditional rational basis review. See id. 15 Amicus the Family Trust Foundation phrased the state's interest slightly differently: to channel the presumptive procreative potential of man-woman couples into committed unions for the good of children and society. It then went on to make the exact same argumentschiefly, responsible procreation and child- rearing, steering naturally procreative relationships into stable unions, and promoting the optimal childrearing environmentthat this Court in Bourke and other federal courts have rejected. See F.Supp.2d at , 2014 WL 556729, at *8. The Court sees no need to readdress these arguments and incorporates its Bourke discussion by reference. End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (404 of 518)
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CATHERINA PARETO, et al., CIVIL DIVISION CASE NO.: 14-1661 CA 24 Plaintiffs, vs. HARVEY RUVIN, as Clerk of the Courts of Miami-Dade County, Florida, in his official capacity,
ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT This Cause came to the Court on the Plaintiffs Motion for Summary Judgment. The Court, having reviewed the motion, the States memorandum of law in opposition, and the amicus briefs, having considered the arguments of counsel, and being otherwise fully advised in the premises, hereby finds as follows: I. INTRODUCTION The following language, set forth by the United States Supreme Court forty seven years ago, applies equally to the instant case when references to race are removed: To deny this fundamental freedom on so unsupportable a basis as the . . . classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious . . . discriminations.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (405 of 518) Page 2 of 36 Case No. 14-1661-CA-01
Loving v. Virginia, 388 U.S. 1, 12 (1967). Loving was not cited once in the States brief, and it was disingenuous of it to ignore this seminal case rather than attempting to distinguish it. Nevertheless, this Court finds that the only distinction between Loving and the instant case is that the instant case deals with laws that deny the fundamental freedom to marry based upon peoples sexual orientation rather than their race. Because this denial is the denial of a fundamental right, it would have to be narrowly tailored to serve a compelling governmental interest in order to be valid. The statutes and constitutional amendment at issue do not meet this standard, nor do they meet the rational basis standard which only requires them to be rationally related to a legitimate governmental interest. For the reasons stated below, this Court finds that Floridas statutory and constitutional restrictions on same-sex marriage violate the Due Process and Equal Protection Clauses of the United States Constitution. They improperly infringe upon the Plaintiffs ability to exercise their fundamental right to marry the person of their choice, and upon their liberty interests regarding personal autonomy, family integrity, association, and dignity. They also unlawfully discriminate on the basis of sexual orientation. A. The Parties The Plaintiffs include six couples who live in Florida, as well as Equality Florida Institute, Inc., a Florida based civil rights organization focused upon the rights of Floridas lesbian, gay, bisexual, and transgender community. Catherina Pareto and Karla Arguello have been in a committed relationship for fourteen years. Together, the couple is raising a fifteen- month-old son that they adopted in July 2013. Juan Carlos Rodriguez and David Price have been in a committed relationship for nearly eighteen years. The couple is raising three year old twins. Vanessa and Melanie Alenier have been in a committed relationship for eight years, and together, they are raising a son, whom they adopted in August 2010. Todd and Jeff Delmay have Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (406 of 518) Page 3 of 36 Case No. 14-1661-CA-01
been in a committed relationship for eleven years. In May 2010, they too adopted a son and are raising him together as his parents. Summer Greene and Pamela Faerber have been in a committed relationship for twenty-five years. Together, they raised Mrs. Faerbers teenage daughter from a previous marriage and currently have two grandchildren. Don Price Johnston and Jorge Diaz have been in a committed relationship for one year and recently became engaged. Aside from being of the same-sex, each couple meets all of Floridas legal requirements for the issuance of a marriage license, and on January 17, 2014, each couple personally appeared at the Office of the Clerk of the Courts in Miami-Dade County and applied for a marriage license. However, the Clerk, in his official capacity and through his authorized deputy, refused each application because both Florida law and the State Constitution prohibit same-sex marriage. 741.04(1), 741.212 Fla. Stat. (2013); Art. I, 27, Fla. Const. The Plaintiff couples assert that those portions of Floridas Constitution and statutes which prohibit them from getting married violate the Due Process and Equal Protection Clauses of the United States Constitution. The Miami-Dade Clerk of the Courts is the original Defendant in this case. The Clerk is duty-bound to remain neutral and cannot choose which laws and court decisions to follow. Thus, the Clerk has neither argued in favor of, nor against, the marriage bans at issue. The State of Florida intervened in this case approximately one week prior to hearing on the instant motion for summary judgment. The State fully participated in the argument before this Court, presenting both a written response to the motion and an oral argument. The State asserts the marriage bans do not violate the United States Constitution. Amicus groups Florida Family Action, Inc. [FFAI], Florida Democratic League, Inc. [FDL], and People United To Lead The Struggle For Equality, Inc. [PULSE] each played an instrumental role in gathering signatures to place Floridas constitutional amendment against Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (407 of 518) Page 4 of 36 Case No. 14-1661-CA-01
same-sex marriage on the ballot, and in educating and mobilizing voters to support it. In addition, FFAI actually drafted the Amendment. They also assert that Floridas marriage bans do not violate the United States Constitution, and they prepared a lengthy brief and argued at the hearing on the motion for summary judgment. Though it did not submit a brief, Amicus Christian Family Coalition was allowed by the Court to participate in that hearing with a short oral argument against granting summary judgment. In addition, the cities of Miami Beach and Orlando filed an amicus brief 1 and presented oral argument to this Court against Floridas same-sex marriage bans. The cities contend these laws not only violate the U.S. Constitution, they create social and economic harm, particularly within those cities. Charles J. Charlie Crist, who was Floridas governor when its constitution was amended to ban same-sex marriage, filed a notice supporting this position and also asserts that society has fundamentally changed since Florida adopted its constitutional amendment against same-sex marriage. The Court thanks the parties and amici as their efforts ensured that all aspects of this legal issue were fully asserted and argued. B. Florida and Same-sex Marriage Prohibitions Same-sex marriage has been explicitly prohibited in Florida by law since 1977, when the Legislature amended section 741.04(1), to expressly bar county judges and circuit court clerks from issuing a license for the marriage of any person unless . . . one party is a male and the other party is a female. This section was Floridas only law concerning same-sex marriage until the 1990s, when, in 1993, the Hawaii Supreme Court held that its states prohibition of same-sex marriage was discriminatory under the Hawaiian Constitution. See Baehr v. Lewin, 852 P.2d 44
1 The Village of Biscayne Park, Florida, subsequently joined this brief and adopted its arguments. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (408 of 518) Page 5 of 36 Case No. 14-1661-CA-01
(1993). This decision marked the first time that any court recognized same-sex marriage, and [t]he reaction was immediate and visceral. In the next few years, twenty-seven states passed anti-same-sex marriage legislation, and Congress passed the Defense of Marriage Act (DOMA). Bourke v. Beshear, 2014 WL 556729 at *1 (W.D. Ky. 2014) (internal citations omitted). Florida was among those states. In 1997, the Legislature enacted section 741.212, Florida Statutes, which specifically addresses Marriages between persons of the same-sex. The section provides that: 1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship.
3) For purposes of interpreting any state statute or rule, the term marriage means only a legal union between one man and one woman as husband and wife, and the term spouse applies only to a member of such a union.
A similar reaction swept through the nation in 2003 after the Massachusetts Supreme Judicial Court legalized same-sex marriage, and Massachusetts began issuing same-sex marriage licenses the following year. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). This time, however, gay marriage opponents initiated campaigns to enact constitutional amendments to protect traditional marriage. Bourke, 2014 WL 556729 at *2. By amending state constitutions to prohibit same-sex marriage, opponents of such unions could ensure that same-sex marriage bans would not be held to violate their state constitutions. The campaign to Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (409 of 518) Page 6 of 36 Case No. 14-1661-CA-01
amend state constitutions came to Florida in 2008, and a ballot-initiative to add the following language to the Florida Constitution was placed before Florida voters: Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.
The voters approved, and said amendment is now article 1, section 27 of Floridas Constitution. C. This Case The instant complaint challenges the validity of article I, section 27 of the Florida Constitution, and the portions of sections 741.04(1) and 741.212, Florida Statutes, which preclude same-sex couples from marrying in Florida on the basis that they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Relatedly, the Clerk of the Court has asked the Court to 1) address section 741.05, Florida Statutes, as this law makes violating section 741.04(1) a misdemeanor offense; and 2) provide guidance on how to modify the marriage license forms if necessary. At its heart, this case is about the right to marry the person of ones choice. It is about whether the right to marry can be denied to members of a particular group based upon their sexual orientation, and whether couples and families who have members that fall into that group are entitled to the respect, benefits, and protections which marriage brings. However, it is important to note that this decision only affects civil marriage. It will not affect any religious institutions rights involving marriage. Just as religion cannot be used to justify the laws at issue, this Court cannot require religious institutions to perform or recognize same-sex marriages. See DeBoer v. Snyder, 973 F. Supp. 2d 757, 773 (E.D. Mich. 2014) (The same Constitution that protects the free exercise of one's faith in deciding whether to solemnize certain marriages rather than others, is the same Constitution that prevents the state from either Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (410 of 518) Page 7 of 36 Case No. 14-1661-CA-01
mandating adherence to an established religion, or enforcing private moral or religious beliefs without an accompanying secular purpose.) (internal citation omitted). 2 Similarly, this order does not interfere with any individuals religious or other fundamental rights. II. Summary Judgment The Plaintiffs have moved for summary judgment. Summary judgment is proper if there are no genuine issues of material facts and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); see also Fla. R. Civ. P. 1.510 (2014). Only competent evidence may be considered in ruling on a motion for summary judgment, Bryson v. Branch Banking & Trust Co., 75 So. 3d 783, 786 (Fla. 2d DCA 2011), and a court must review the record evidence in the light most favorable to the non-moving party. Daneri v. BCRE Brickell, LLC, 79 So. 3d 91, 94 (Fla. 3d DCA 2012) (internal citation omitted). Here, the Plaintiffs contend that no genuine issue of material fact is disputed in this case and only a purely legal question remains: whether Floridas same-sex marriage bans are constitutional. The Party-Defendants neither challenge this argument nor dispute the ripeness of this cause for disposition by summary judgment. Only Amicus Curiae FFAI, FDL and PULSE assert that issues of fact are in doubt. More specifically, these amici claim the Plaintiffs have presented no evidence on issues such as whether they are Florida residents who applied for and were denied marriage licenses. An amicus, however, is not an official party to a case, and thus, should not argue the facts in issue. Ciba-Geigy Ltd. v. Fish Peddler, Inc., 683 So. 2d 522, 523
2 It is also worth noting that civil marriage is a legal construct, not a biological rule of nature, so it can be and has been changed over the years; there is nothing impossible about defining marriage to include same-sex couples, as has been demonstrated by the decisions of a number of countries and states to do just that. Wolf v. Walker, 2014 WL 2558444 *19 (W.D. Wisc. 2014).
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (411 of 518) Page 8 of 36 Case No. 14-1661-CA-01
(Fla. 4th DCA 1996). Regardless, each Plaintiff filed a declaration on May 1, 2014 stating, in pertinent part, that he or she: 1) lives in Florida; 2) went to the Miami-Dade Countys Clerk of Courts Office to apply for a marriage license; 3) meets all of Floridas marriage requirements except for the fact that he or she is the same gender as the person that he or she wants to marry; and that 4) the Clerk, per Florida law, refused to issue marriage licenses because the members of each couple were of the same-sex. No facts other than these are needed to resolve the legal issues in this case. III. Preliminary Challenges This Court must resolve two threshold issues before addressing the Plaintiffs due process and equal protection claims. First, the State asserts this Court lacks subject-matter jurisdiction over the Plaintiffs claims because Plaintiffs exclusively rely on the United States Constitution, and the United States Supreme Court has found that challenges to a States refusal to recognize same-sex marriage do not raise a substantial federal question. See Baker v. Nelson, 409 U.S. 810 (1972). Second, both the State and the Amici opposing same-sex marriage claim this Court cannot overturn article 1, section 27, of the Florida Constitution because it was a citizen-initiated amendment, and this Court is bound to respect the will of the voters. A. Baker v. Nelson In 1972, the United States Supreme Court dismissed a challenge to a states denial of a marriage license to a same-sex couple for want of a substantial federal question. Id. In the instant case, the State argues that Baker bars this Court from finding that Floridas same-sex marriage bans violate the United States Constitution. However, given doctrinal developments that have occurred over the last forty years, including the landmark case of United States v. Windsor, 133 S.Ct 2675 (2013), it no longer appears that Baker is controlling. In fact, there have Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (412 of 518) Page 9 of 36 Case No. 14-1661-CA-01
been over twenty cases which have been decided since Windsor which have examined whether state same-sex marriage bans are constitutional, and based on the Courts review not one has found Baker bars such examination. 3
The United States Supreme Court has held that its dismissals for want of a substantial federal question are decisions on the merits, despite being summary dispositions. Hicks v. Miranda, 422 U.S. 332, 344 (1975). As such, they are binding upon lower courts, unless doctrinal developments since the finding of insubstantiality suggest that the Court would rule differently now. Id.; Mandel v. Bradley, 432 U.S. 173, 176 (1977); see also Kitchen v. Herbert, 2014 WL 2868044 (10th Cir. 2014); Love v. Beshear, 2014 WL 2957671 (W.D. Ky. July 1, 2014). The issue, therefore, is whether the Supreme Court would still find that a same-sex marriage challenge does not raise a substantial federal question. 4
Given the deluge of pertinent doctrinal developments that have mushroomed across the constitutional landscape since 1972: it is difficult to take seriously the argument that Baker bars the Plaintiffs challenge today. Love v. Beshear, 2014 WL 2957671 at *2-3 (W.D. Ky. July 1, 2014). For example, two decades after Baker, the United States Supreme Court quashed, on
3 It is also worth noting that every one of those cases has found that same-sex marriage bans violate the United States Constitution, including a very recent (July 17, 2014) Florida case from the Sixteenth Judicial Circuit, striking down the same laws challenged in this case.
4 The State argues that since Hicks and Mandel, the Supreme Court has prohibited departures from its precedent even if there appears to be a doctrinal shift. See Agostini v. Felton, 521 U.S. 203, 207 (1997) (The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent.); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.). However, these later cases do not purport to overrule the doctrinal developments rule specifically set forth in Hicks regarding dismissals for want of a substantial federal question. See Kitchen, 2014 WL 2868044 at *8, n.2 (10th Cir. 2014). More specifically, Agostini and Rodriguez de Quijas only address the impermissibility of overruling by implication the legal holdings set forth in full opinions; they say nothing about summary dismissals for want of a substantial federal question. Thus, per their own reasoning, Rodriguez de Quijas and Agostini do not overrule Hicks by implication. Hicks stands as good law, and therefore, if doctrinal shifts suggest that the Supreme Court would no longer find an issue fails to raise a substantial federal question, then its previous finding of insubstantiality is no longer binding. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (413 of 518) Page 10 of 36 Case No. 14-1661-CA-01
equal protection grounds, a state constitutional amendment that discriminated on the basis of sexual orientation. Romer v. Evans, 517 U.S. 620 (1996). In 2003, the Court found that due process protects the liberty of homosexuals to engage in intimate sexual conduct. Lawrence v. Texas, 539 U.S. 558 (2003). And just last year, the Court struck down Section 3 of DOMA, which defined marriage and spouse to exclude same-sex marriages from federal recognition. Windsor, 133 S.Ct 2675 (2013). It is therefore untenable to assert that the Supreme Court continues to deem that issues concerning sexual orientation discrimination, gay rights, or same-sex marriage are in want of a substantial federal question. See Kitchen, 2014 WL 2868044 at *10 (10th Cir. 2014) ([I]t is clear that doctrinal developments foreclose the conclusion that the [same-sex marriage] issue is, as Baker determined, wholly insubstantial.). 5
Thus, this Court finds that Baker does not prevent it from considering whether Floridas same- sex marriage restrictions violate the federal Constitution. B. Will of the Voters The State and the amici opposing same-sex marriage also assert this Court lacks subject- matter jurisdiction because article 1, section 27 of Floridas Constitution was enacted via a citizen-led ballot initiative, and this Court must respect the voters policy preferences. While citizen-participation in government and the right to vote are the hallmarks of a democracy, it is also the judiciarys responsibility to examine the constitutionally of the laws of this State when they are called into question. See Marbury v. Madison, 5 U.S. 137 (1803) The law is not a static entity. It evolves and adapts to social change. This Nation and State, moreover, are constitutional democracies with certain principles enshrined into a governing text. A states
5 See also Transcript of Oral Argument at *12, for Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), Statement of Justice Ruth Bader Ginsberg, available at 2013 WL 1212745 (Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. . . . And same-sex intimate conduct was considered criminal in many States in 1971, so I don't think we can extract much [from Baker.]). Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (414 of 518) Page 11 of 36 Case No. 14-1661-CA-01
constitution cannot insulate a law that otherwise violates the U.S. Constitution. The United States Constitution would be meaningless if its principles were not shielded from the will of the majority. See W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Id. (emphasis added). Accordingly, the will of the voters does not immunize Article 1, Section 27 of Floridas Constitution from judicial review into whether it comports with the commands of the U.S. Constitution. See Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 981 (S.D. Ohio 2013). Regardless of the justifications provided by an enactment's proponents, . . . if such an enactment violates the U.S. Constitutionwhether passed by the people or their representativesjudicial intervention is necessary to preserve the rule of law . . . The electorate cannot order a violation of the Due Process or Equal Protection Clauses by referendum or otherwise, just as the state may not avoid their application by deferring to the wishes or objections of its citizens.
Id. (emphasis supplied). To hold otherwise would sanction the tyranny of the majority. 6
IV. Due Process The Fourteenth Amendment to the U.S. Constitution states, in pertinent part, that: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. CONST., amend. XIV, 1. The portion of this Amendment stating that no State shall deprive any person of life, liberty, or property, without due process of law, is known as the
6 The Court does not mean to disparage anyone who voted for Floridas same-sex marriage amendment by using the phrase, tyranny of the majority. This commonly used term of art simply means that a majority of people, no matter how good their intentions, or sincere in their beliefs, if not checked in their power, may, in imposing upon others what they believe to be right, interfere with the rights of those others. Our Nations Founders, at the dawn of our nation, were well-aware of this possibility, and they consequently designed our system of government to include various checks on the will of the voters so that it does not impinge upon the rights of the minority. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (415 of 518) Page 12 of 36 Case No. 14-1661-CA-01
Due Process Clause, and it protects the fundamental rights of the people. The liberty protected by this clause encompasses those freedoms expressed in the Bill of Rights as well as other fundamental rights. See Troxel v. Granville, 530 U.S. 57, 65 (2000). As explained by the United States Supreme Court: The Due Process Clause guarantees more than fair process, and the liberty it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) ([Due Process] protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301-302 (1993).
Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). (internal citations omitted or altered). In other words, all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring). A. The Right to Marry Indisputably among the other liberties protected by due process is the right to marry. Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (listing marriage as one of the rights that are [w]ithout doubt protected by the Due Process Clause). Supreme Court recognition of marriage as a fundamental, important, and vital right is not only long-standingsee Maynard v. Hill, 125 U.S. 190, 206 and 211 (1888) (calling marriage the most important relation in life and the foundation of the family and of society) it has also been frequently reaffirmed. 7 The United
7 See Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978) (reaffirming the fundamental character of marriage and stating that it is of fundamental importance for all individuals); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause.); United States v. Kras, 409 U.S. 434, 446 (1973) (listing marriage as a right that the Court has come to regard as fundamental and that demand the lofty requirement of a compelling governmental interest before they may be significantly regulated); 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
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (416 of 518) Page 13 of 36 Case No. 14-1661-CA-01
States Supreme Court has also found that marriage is related to other protected rights such as privacy and association. See Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (referring to the privacy surrounding the marriage relationship); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society,. . . , rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect.) (internal citations ommitted). Thus, marriage is clearly a fundamental right that is protected by the Fourteenth Amendment. B. Scope of Marriage Right Nevertheless, the State asserts that there is no fundamental right to same-sex marriage because that specific category of marriage is not objectively, deeply rooted in this Nations history and tradition. Glucksberg, 521 U.S. at 720-21. 8 However, none of the United States Supreme Courts proclamations on the fundamental right to marry have defined marriage categorically. See Latta v. Otter, 2014 WL 1909999 *12 (D. Idaho 2014) (While Glucksberg demands that new rights be carefully described and deeply rooted, . . . the Supreme Court has long recognized an unembellished right to marry.); Henry v. Himes, 2014 WL 1418395 at *7 (S.D. Ohio 2014) (The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing [it] as a more limited right that is about the characteristics of the couple seeking marriage.).
orderly pursuit of happiness . . . . Marriage is one of the basic civil rights . . . fundamental to our very existence and survival.) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
8 The State points out that same-sex marriage was not permitted anywhere in the United States until 2003 and was not permitted in any country before 2000.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (417 of 518) Page 14 of 36 Case No. 14-1661-CA-01
The Supreme Court has never analyzed whether a fundamental right to marry exists by defining the right to include only those who are not being excluded from access to that right. Most obviously, in Loving v. Virginia, the Court did not inquire whether interracial marriage was a basic civil right, but instead identified marriage as the basic civil right at issue and examined whether a State could deny that right to people who wished to marry someone of another race. See Loving 388 U.S. at 12; see also Kitchen, 2014 WL 2868044 at *13 (10th Cir. 2014) ([T]he question as stated in Loving, and as characterized in subsequent opinions, was not whether there is a deeply rooted tradition of interracial marriage, or whether interracial marriage is implicit in the concept of ordered liberty; the right at issue was the freedom of choice to marry.) Similarly, in a challenge to a state law limiting the ability of child-support debtors to marry, the Court spoke of the fundamental character of the right to marry, not of a right for child-support debtors to marry. See Zablocki, 434 U.S. at 383-86. Likewise, when reviewing restrictions on prisoners access to marriage, the Court only analyzed the degree to which the right to marry could be restricted for prisoners; it did not examine whether a right to prisoner marriage was deeply rooted in our history and tradition. See Turner v. Safley, 482 U.S. 78, 95- 96 (1987). In short, by categorizing the right at issue the right to same-sex marriage rather than the right to marriage, the State is attempt[ing] to narrowly parse a right that the Supreme Court has framed in remarkably broad terms, See Latta, 2014 WL 1909999 at *12. 9
9 That constitutional rights should not be defined narrowly is demonstrated by the analysis set forth in Lawrence v. Texas, 539 U.S. 558 (2003), a case examining the constitutionality of a law prohibiting sodomy, in which the United States Supreme Court found that its previous analysis in Bowers v. Hardwick, 478 U.S. 186, 190 (1986) misconstrued the right at issue by stating the issue of the case too narrowly:
The Court began its substantive discussion in Bowers as follows: The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. Id., at 190. That statement, we now conclude, discloses the Courts own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (418 of 518) Page 15 of 36 Case No. 14-1661-CA-01
When analyzing the scope of the fundamental right to marry (or any fundamental right), it would be both circular and insincere to use the group being denied a right to define the right itself. See Kitchen, 2014 WL 2868044 at *18-19 (10th Cir. 2014) (stating that the assertion that plaintiffs are excluded from the institution of marriage by definition is wholly circular, and that in describing the liberty interest at stake, it is impermissible to focus on the identity or class-membership of the individual exercising the right.); Henry, 2014 WL 1418395 at *7 (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.); See also Goodridge, 798 N.E.2d at 97273 (Greaney, J., concurring) (To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question.). Same-sex couples desire not to redefine the institution [of marriage] but to participate in it. Kitchen, 2014 WL 2868044 at *18. The right Plaintiffs seek to exercise is not a new right, but is rather a right that these individuals have always been guaranteed by the United States
the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Lawrence, 539 U.S. at 566-67.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (419 of 518) Page 16 of 36 Case No. 14-1661-CA-01
Constitution. Whitewood v. Wolf, 2014 WL 2058105 (M.D. Pa. 2014). Although this right has always been theirs, it is only recently that historical blinders have begun to fall so that we have been able to recognize that the right belongs to them as well. Simply put, fundamental rights belong to everyone. See Henry, 2014 WL 1418395 at *8. 10 All individuals have a fundamental right to marry. See Latta, 2014 WL 1909999 at *12; Zablocki, 434 U.S. at 384 ([T]he right to marry is of fundamental importance for all individuals) (emphasis added). The inquiry is not whether there is a right to same-sex marriage, but whether same-sex couples can be excluded from the right to marriage. See Wolf, 2014 WL 2558444. C. States Ability to Regulate the Fundamental Right to Marry As with all fundamental rights, marriage is subject to regulation by the States. See Windsor, 133 S.Ct. at 2680. However, a state's broad authority to regulate matters of state concern does not include the power to violate an individual's protected constitutional rights. Latta, 2014 WL 1909999 at *1; see Windsor, 133 S.Ct. at 2680 (Subject to certain constitutional guarantees, . . . regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.) (internal citations omitted). Thus, a States marriage laws must respect the constitutional rights of persons . . . . Windsor, 133 S.Ct.
10 Although fundamental rights belong to everyone, our understanding of those rights and the limitations that it is permissible to place upon them have changed over time. As explained in Lawrence:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence 539 U.S. at 57879.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (420 of 518) Page 17 of 36 Case No. 14-1661-CA-01
at 2691. In particular, as it pertains to this case, the powers of a State are subject to the commands of the Fourteenth Amendment. See Loving, 388 U.S. at 7. D. Standard of Scrutiny for Restrictions on the Fundamental Right to Marry Although the government may place restrictions on fundamental rights, including the right to marry, such restrictions must meet a certain standard in order to be valid: A restriction will only be upheld if the infringement is narrowly tailored to serve a compelling state interest. Flores, 507 U.S. at 302; see also D.M.T. v. T.M.H., 129 So. 3d 320, 339 (Fla. 2013) (We subject statutes that interfere with an individual's fundamental rights to strict scrutiny analysis, which requires the State to prove that the legislation furthers a compelling governmental interest through the least intrusive means.) E. Government Interests In the instant case, the State has not identified any government interest served by banning same-sex marriages. Instead, it argues that the rational basis test applies, that it has no obligation to identify such interests, and that this Court must instead examine every conceivable basis which might support same-sex marriage bans. Although this Court has determined that strict scrutiny applies to this case because it involves a restriction on the fundamental right to marry, it will not assume that the State implicitly concedes that no other legitimate or compelling state interest exists for these bans. The Court, in the interest of thoroughness, will address the arguments of the amici supporting the bans, arguments discussed in the opinions of other courts on this issue, and arguments put forth by the State of Florida in Brenner, et al. v. Scott, Case No. 4:14cv 107-RH/CAS, which is pending in the United Stated District Court for the Northern District of Florida.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (421 of 518) Page 18 of 36 Case No. 14-1661-CA-01
a. Tradition In Brenner, the State of Florida argued that the same-sex marriage ban is supported by history and tradition and the Amici supporting the ban make the same argument here. This argument, in essence, is that our long-history of denying same-sex couples the right to marry is reason enough to continue doing so. However, neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack. Williams v. Illinois, 399 U.S. 235, 239 (1970). Tradition alone does not constitute a rational basis for any law because preserving tradition for its own sake is a circular proposition. See De Leon v. Perry, 975 F. Supp. 2d 632, 655 (W.D. Tex. 2014). The Framers also understood that contemporary prejudices can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. Lawrence, 539 U.S. at 579. The Constitution is not so rigid that it always mandates the same outcome even when its principles operate on a new set of facts that were previously unknown. Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1203 (D. Utah 2013). Thus, history and tradition may be the road to substantive due process inquiry, but they are not always the final destination. See Lawrence, 539 U.S. at 572. Instead, history and tradition identify the liberties due process protects; but once a right is recognized, the courts do not carry forward historical limitations of that right. Henry, 2014 WL 1418395 at *8; see also Planned Parenthood of SE Pennsylvania v. Casey, 505 U.S. 833, 847 (1992) (holding that history and tradition are not to be defined at the most specific level when determining whether a right is protected by due process). 11
11 Adherence to the pasts prescriptions on fundamental rights would not only defeat the purpose of recognizing the right itself, it would license society to continue practices, such as the separation of races, which we now abhor. If historic limitations created limits to fundamental rights, not only could interracial couples still be excluded from
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (422 of 518) Page 19 of 36 Case No. 14-1661-CA-01
Using history as a starting point, marriage, as previously noted, has been viewed in our country as a fundamental, important, and vital right. Furthermore, as argued by the amici opposing same-sex marriage, marriage has existed for millennia. See Memorandum of Law of Amici Curiae FFAI, FDL, and PULSE in Opposition to Plaintiffs Motion for Summary Judgment at 11. However, by focusing solely on when same-sex marriage was first legalized in the United States, the State and its amici diminish marriages true meaning and value. They also lose sight of the fact that the capacity to form, preserve and celebrate loving, intimate, and lasting relationships is an innate human quality that bears no relation to sexual orientation. Bostic v. Rainey, 970 F. Supp. 2d 456, 473 (E.D. Va. 2014). Same and opposite sex marriage are two-sides of the same coin, and therefore, since we have always given great deference to an individuals personal relationship choices, our Nations history and tradition actually favors marriage equality for homosexuals. See Bostic, 970 F. Supp. 2d at 472-73. Denying same-sex couples the right to marry, only because marriage has historically and traditionally been between a man and a woman, is neither a compelling nor even a legitimate governmental interest. See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 998 (N.D. Cal. 2012) (finding that the argument that the definition of marriage should remain the same for the definition's sake is a circular argument, not a rational justification.) b. Childrearing The amici opposing same-sex marriage next claim the marriage bans at issue are necessary because opposite-sex households are the best environment for childrearing. Protecting
marriage, but black and white children could still be required to attend different schools, unmarried persons could still be prevented from obtaining contraceptives, homosexuals could still be prohibited from engaging in sexual intimacy, and Native Americans could still be denied the right to vote. See Loving, 388 U.S. 1; Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955); Eisenstadt v. Baird, 405 U.S. 438 (1972); Lawrence, 539 U.S. at 566- 67; Harrison v. Laveen, 67 Ariz. 337, 341, 196 P.2d 456, 458 (1948).
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (423 of 518) Page 20 of 36 Case No. 14-1661-CA-01
children is undoubtedly a compelling governmental interest. However, denying same-sex couples the right to marry does not promote that goal. In Florida Dept. of Children & Families v. Adoption of X.X.G., 45 So. 3d 79, 86-87 (Fla. 3d DCA 2010) the Third District Court of Appeal accepted the trial courts findings that: The quality and breadth of research available . . . [on] gay parenting and children of gay parents, is robust and has provided the basis for a consensus in the field. Many well renowned, regarded and respected professionals have [produced] methodologically sound longitudinal and cross-sectional studies into hundreds of reports . . . [that have been] published in many well-respected peer reviewed journals [and thus] withstood the rigorous . . . process [of being] tested statistically, rationally and methodologically by seasoned professionals prior to publication.
In addition to the volume, the body of research is broad; comparing children raised by lesbian couples to children raised by married heterosexual couples; children raised by lesbian parents from birth to children raised by heterosexual married couples from birth; children raised by single homosexuals to children raised by single heterosexuals; and children adopted by homosexual parents to those raised by homosexual biological parents, to name a few. These reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children. These conclusions have been accepted, adopted and ratified by the American Psychological Association, the American Psychiatry Association, the American Pediatric Association, the American Academy of Pediatrics, the Child Welfare League of America, and the National Association of Social Workers. As a result, based on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise.
Id. (emphasis supplied). Laws based on an unfounded presumption are unconstitutional. See De Leon, 975 F. Supp. at 654. The Third District Court of Appeal also found the States argument was undermined by the fact that it utilize[ed] homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons. In re Adoption of X.X.G., 45 So. 3d at 86. Though this finding was made in the context of gay adoption, the same dichotomy exists with Floridas marriage laws. Currently, homosexuals can Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (424 of 518) Page 21 of 36 Case No. 14-1661-CA-01
legally, and do, start families via adoption, assisted reproductive technology, or by being foster parents or guardians. Accordingly, the issue of same-sex marriage is inapposite to the purported goal of preventing same-sex couples from being parents. Rather, the marriage bans merely prevent same-sex couples from having their already existent families and partnerships recognized in the same manner as opposite-sex couples. This discrepancy not only demeans the couple, but humiliates tens of thousands of children now being raised by same-sex couples. Windsor, 133 S. Ct. at 2694. Thus, laws limiting marriage to opposite-sex couples actually harm the amicis stated objective of promoting the best interest of children. See id. ([DOMA] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.). Promoting the best interest of children bears no relationship whatsoever to denying same-sex marriage, and therefore, this justification fails both strict scrutiny and rational basis analysis. c. Procreation The amici opposing same-sex marriage also contend that Floridas restrictions on same- sex marriage further responsible and natural procreation. Marriage, however, cannot and has never been preconditioned on ones ability to reproduce. Procreation is simply one reason among many to marry. See Turner v. Safley, 482 U.S. 78, 95-96 (1987) (listing some of the important attributes of marriage); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 993 (N.D. Cal. 2012); Baker v. State, 744 A.2d 864, 881 (Vt. 1999) (It is equally undisputed that many opposite-sex couples marry for reasons unrelated to procreation.). Florida, for instance, like all other states, allows post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating to marry. See De Leon, 975 F. Supp. 2d at Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (425 of 518) Page 22 of 36 Case No. 14-1661-CA-01
654. Thus, adopting this rationale to prevent same-sex marriage would only undercut the legitimacy of many opposite-sex couple marriages. The amici, moreover, have not explained how banning same-sex marriage makes it more or less likely that heterosexuals will marry and engage in activities that can lead to procreation. De Leon, 975 F. Supp. 2d at 654. It is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples. Kitchen, 2014 WL 2868044 at *26 (10th Cir. 2014). Procreation, after all, freelyand not always irresponsiblyoccurs outside of wedlock. While only opposite-sex couples can naturally procreate, they too use artificial means like adoption and assisted reproductive technology to start families. Floridas same-sex marriage prohibitions only hinder the encouragement of stable environments for procreation, see De Leon, 975 F. Supp. 2d at 654; because the reality today is that [an] increasing number of same-sex couples are employing [these artificial] techniques to conceive and raise children. Baker, 744 A.2d at 882 (Vt. 1999). Barring same-sex couples from marrying is not narrowly tailored to the governments interest in encouraging any particular type of procreation, and thus it does not pass strict scrutiny. It is not even rationally related to that interest. d. Other Possible Justifications In similar challenges to same-sex marriage bans of other states, supporters of these laws have raised a variety of different arguments from the foregoing, but the fact that no court has yet to uphold such a ban since the Supreme Court decided Windsor is indicative of the merits of these other arguments. The amici supporting Floridas same-sex marriage bans also raise one claim that appears to be unique. They insist these laws prevent the spread of HIV and certain cancers that are more prevalent among gay men. They assert that allowing same-sex marriage Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (426 of 518) Page 23 of 36 Case No. 14-1661-CA-01
will de-stigmatize homosexual conduct, and thereby encourage sexual practices which help spread those diseases. However, it is absurd to suggest that a marriage law can combat a medical disease. The alleged connection between banning same-sex marriage and affecting homosexuals intimate conduct is not narrowly tailored to the result it seeks to accomplish, and it is too indirect and theoretical to pass even the rational basis test. Moreover, stigmatization and moral disapproval are not constitutionally permissible bases for legislation. Windsor, 133 S.Ct at 2693; Lawrence, 539 U.S. at 584. Supporters of these laws have relatedly stressed the importance of proceeding with caution on this issue. However, [t]he basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled. Watson v. Memphis, 373 U.S. 526, 532- 33 (1963). This Court, therefore, cannot deny same-sex couples their martial rights simply for the sake of delay. F. Harmful Impact of Prohibiting Same-Sex Marriage The amici opposing same-sex marriage argue that marriage is inherently good. Id. at 20. They state that Marriage provides a framework for mutual benefits financial, sexual and otherwise and for affection. Id. (internal citations omitted). They also argue that it is inherently good for structuring families, and that families are the building blocks for a healthy society, and for encouraging permanence and exclusivity in relationships. These benefits, or purposes of marriage are inherently good. Id. The Plaintiffs agree with these sentiments. As the United States Supreme Court explained: Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (427 of 518) Page 24 of 36 Case No. 14-1661-CA-01
Griswold, 381 U.S. at 486; see also Kitchen, 961 F. Supp. 2d at 1202-03 (D. Utah 2013) ([Marriage is] 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). Marriage is not just good; it is noble. Supporting Floridas same-sex marriage bans, however, conflicts with the amicis interest in protecting and advancing this inherently good institution because these laws do nothing but limit the institution. For instance, because of these laws, same-sex couples are denied: The right to be supported financially during marriage, enforced by criminal penalties for non-support. Killian v. Lawson, 387 So. 2d 960, 962 (Fla. 1980); 61.90, 856.04, Fla. Stat.
The right to be a presumed parent to a child born to a spouse during marriage. Fla. Dept of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006); 742.091, 742.11(a), Fla. Stat.
The right to make medical decisions for an ill or incapacitated spouse without an advance health care directive. 765.401, Fla. Stat.
The right to spousal insurance coverage and benefits, when spousal benefits are otherwise available.
A host of federal rights and responsibilities that pertain to married couples, including but not limited to, those related to Social Security, Medicare, Medicaid, the Family Medical Leave Act, and the Veterans Administration.
The right to a court-ordered equitable distribution of property upon the dissolution of the marriage. 61.075, Fla. Stat.
The right to receive certain workers compensation benefits for a deceased spouse who has died as a result of a work-related accident. 440.16, Fla. Stat.
The right to inherit a share . . . [and] to priority in appointment as the personal representative of the estate of a spouse who dies without a will. 732.201, 733.301, Fla. Stat.
The right to receive an elective share of the estate of a spouse who died with a will. 732.201, Fla. Stat.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (428 of 518) Page 25 of 36 Case No. 14-1661-CA-01
The privilege not to have a spouse testify in a court proceeding about confidential communications made during the marriage. 90.504, Fla. Stat.
The right of spouses of military personnel to be eligible to participate in the states employment advocacy and assistance program for military spouses. 445.005, Fla. Stat.
Compl. at 3-5. Without access to these and other rights, homosexuals are made second-class citizens, and [o]ur Constitution . . . neither knows nor tolerates classes among citizens. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Although some employers utilize creative benefit structures that attempt to compensate for the unavailability of same-sex marriage, no such workaround is able to fully alleviate the damage of same-sex marriage bans. See Brief of the City of Miami Beach and the City of Orlando as Amici Curiae in Support of the Plaintiffs at 14-18. Furthermore, these workarounds also impose significant administrative burdens on said employers. Id. As such, the Court concludes that same-sex marriage neither harms humanity nor undermines marriage and family as institutions. These concepts indeed play central roles in society, but they have broad and inherently mutable definitions. See BLACKS LAW DICTIONARY 637, 992 (8th ed. 2004) (defining marriage as a legal union of a couple and family as 1.) a group of persons connected by blood, . . . affinity, or by law; 2.) a group consisting of parents and their children; or as 3.) a group of persons who live together and have a shared commitment to a domestic relationship); see also AMERICAN HERITAGE DICTIONARY 488 (2d college ed. 1982). The concepts of marriage and family have also, in fact, changed over time. D.M.T., 129 So. 3d at 337 (The legal parameters and definitions of parents, marriage, and family have undergone major changes in the past several decades, from holding a state's ban on interracial marriage unconstitutional, see Loving v. Virginia, 388 U.S. 1, . . . to recognizing the fundamental right to be a parent even for unmarried couples . . . . (internal citations omitted). Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (429 of 518) Page 26 of 36 Case No. 14-1661-CA-01
In respect of civil rights, all citizens are equal before the law. Plessy, 163 U.S. at 559 (Harlan, J., dissenting). Treating homosexuals as inferiors, undeserving of the fundamental right to marry the individual that they love, deprives them of basic human dignity. Accordingly, it is held that article I, section 27 of Floridas Constitution, and those parts of sections 741.04(1) and 741.212, Florida Statutes, prohibiting same-sex couples from marrying in Florida violate the due process protections of the Fourteenth Amendment. These unconstitutional laws are thus void and unenforceable. Furthermore, as shown below, they also violate the federal constitutional guarantee of equal protection. V. Equal Protection The Plaintiffs contend that Floridas same-sex marriage ban unlawfully discriminates on the basis of sexual orientation in violation of the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection clause commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting U.S. CONST., amend. XIV., 1). The United States Supreme Court has nonetheless recognized that effective governance requires this constitutional promise to coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Romer, 517 U.S. at 631. A. Standard of Review Accordingly, the Court has held that, so long as a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. Id. It is this link that gives substance to the Equal Protection Clause. Id. at 632. However, laws that impair a fundamental right, or target a Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (430 of 518) Page 27 of 36 Case No. 14-1661-CA-01
suspect class are subjected to strict or heightened review. City of Dallas v. Stanglin, 490 U.S. 19, 23 (1989); D.M.T., 129 So. 3d at 339. Suspect classifications include those based on race, alienage, or national origin, Cleburne, 473 U.S. at 440; and as previously discussed, in order to survive strict scrutiny, the government must show that a law is narrowly tailored towards furthering a compelling [governmental] interest. Flores, 507 U.S. at 302. There is also a mid- level review for certain classifications, such as those based on sex, that the Court has deemed quasi-suspect. See United States v. Virginia, 518 U.S. 515, 524 (1996). Laws targeting quasi- suspect groups receive intermediate scrutiny, which requires the government to show that the classification is substantially related to an important governmental objective. Id. 1. Sexual Orientation Discrimination The marriage restrictions at issue discriminate on the basis of sexual orientation because they prevent same-sex couples from marrying the person of their choice. To hold otherwise, i.e., find these laws merely impact homosexuals differently as these individuals may still marry like opposite-sex couples, would fundamentally conflict with the constitutional guarantees surrounding the right to marry. Marriage, after all, is about the ability to form a partnership, hopefully lasting a lifetime, with that one special person of [ones] choosing, Baskin v. Bogan, 2014 WL 2884868 *11 (S.D. Ind. 2014); and it works a fundamental change on the lives of all who experience it. Latta, 2014 WL 1909999 at *2. The right to marry would be meaningless if it did not honor the choice of two consenting adults to select each other as spouses. A chosen spouse cannot be substituted with any other person. People are not fungible. Accordingly, it is held that Floridas same-sex marriage bans discriminate on the basis of sexual orientation. 12
12 Since the Court agrees with the Plaintiffs argument that the laws at issue discriminate on the basis of sexual orientation, it declines to address their claim that they also discriminate based on gender. It is noted, though, that many courts have rejected this argument. See, e.g., Wolf, 2014 WL 2558444 *22-23.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (431 of 518) Page 28 of 36 Case No. 14-1661-CA-01
2. Level of Scrutiny for Sexual Orientation Discrimination The question thus becomes what level of scrutiny this Court must use to examine whether these discriminatory laws violate the constitutional promise of equal protection for targeting a suspect class. On this matter, this Court is bound by the Florida Supreme Courts 2013 statement that [s]exual orientation has not been determined to constitute a protected class, and therefore, sexual orientation does not provide an independent basis for using heightened scrutiny to review State action that results in unequal treatment to homosexuals. D.M.T., 129 So. 3d at 341-42 (applying rational basis review in an as-applied constitutional challenge to Floridas assisted reproductive technology statute.).
However, if this Court were not bound by this statement, it might have very well agreed with other courts examining same-sex marriage bans and finding that homosexuality is a quasi- suspect class. 13 Laws targeting sexual orientation would consequently be subject to intermediate scrutiny. More specifically, these other courts examined the factors set forth by the United States Supreme Court to determine whether a class of persons is suspect. These standards include whether the class: (1) has been subjected to a history of purposeful unequal treatment, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam);
13 Since the Hawaii Supreme Courts landmark decision in 1993, Baehr v. Lewin, 852 P.2d 44, 67 (1993) but before Windsor, the state supreme courts of Connecticut, California, and Iowa as well as the Second Circuit Court of Appeals also found sexual orientation to be a protected class. See Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 432 (Conn. 2008); In re Marriage Cases, 183 P.3d 384, 442 (2008); Varnum v. Brien, 763 N.W.2d 862, 895-96 (Iowa 2009); Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) (The Second Circuit hears appeals from federal courts in Connecticut, New York, and Vermont.) The number of courts reaching the same conclusion has ballooned since Windsor with the New Mexico Supreme Court, federal district courts in Ohio, Wisconsin, Pennsylvania, Idaho, and Kentucky, and the Ninth Circuit Court of Appeals finding homosexuality a protected class. Griego v. Oliver, 316 P.3d 865, 884 (N.M. 2013); Obergefell, 962 F. Supp. 2d at 991; Wolf, 2014 WL 2558444 at *29; Whitewood 2014 WL 2058105 at *14; Latta, 2014 WL 1909999 at *17; Love, 2014 WL 2957671 at *7; SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (The Ninth Circuit hears appeals from federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands.). Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (432 of 518) Page 29 of 36 Case No. 14-1661-CA-01
(2) possesses a characteristic that frequently bears no relation to ability to perform or contribute to society, Cleburne, 473 U.S. at 44041;
(3) exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group, Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (citations omitted); and
(4) is a minority or politically powerless. Id.
Whitewood, 2014 WL 2058105 at * 11. A quick analysis of these factors illustrates the persuasiveness of the heightened scrutiny argument. a. History of Discrimination First, the notion that homosexuals have not faced a long history of discrimination has been routinely rejected by the courts. See, e.g., Lawrence, 539 U.S. at 571 ([F]or centuries there have been powerful voices to condemn homosexual conduct as immoral . . . lesbians and gay men have suffered a long history of discrimination and condemnation.); Rowland v. Mad River Local Sch. Dist., Montgomery Cnty., Ohio, 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting) (Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely . . . to reflect deep-seated prejudice rather than . . . rationality. ) (internal citations omitted); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) ([H]omosexuals have suffered a history of discrimination.); BenShalom v. Marsh, 881 F.2d 454, 46566 (7th Cir. 1989) (Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) ([T]the strong objection to homosexual conduct . . . has prevailed in Western culture for the past seven centuries.). Further discussion on this point is thus unnecessary as examples of this discrimination are provided in Whitewood, 2014 WL 2058105 at *12. 14
14 In terms of government-sanctioned discrimination, in 1952, Congress prohibited gay men and women from
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (433 of 518) Page 30 of 36 Case No. 14-1661-CA-01
b. Ability to Contribute to Society Equally indisputable and in no need of discussion is the fact that sexual orientation does not impact an individuals ability to contribute to society. The backgrounds of the six instant Party Couples highlight the irrationality of all arguments to the contrary. c. Immutability As to the immutable factor, the relevant inquiry is not whether a person could, in fact, change a characteristic, but rather whether the characteristic is so integral to a person's identity that it would be inappropriate to require [him or] her to change it to avoid discrimination. Love, 2014 WL 2957671 at *6 (emphasis supplied). Here, the trait at issue is sexual expression, i.e., something that is fundamental to a persons identity and an integral part of human freedom. Lawrence, 539 U.S. at 577; De Leon, 975 F. Supp. 2d at 631. No one, therefore, can be asked or expected to change his or her sexual orientation even if said choice is possible. d. Political Power With respect to political power, the test is not whether a group has achieved political influence and success over the years, but whether it has the strength to politically protect
entering the country or securing citizenship. In 1953, President Eisenhower issued an executive order banning the employment of homosexuals and requiring that private contractors currently employing gay individuals search out and terminate them. Although the ban on hiring gay employees was lifted in 1975, federal agencies were free to discriminate against homosexuals in employment matters until President Clinton forbade the practice in 1998. Beginning in World War II, the military developed systematic policies to exclude personnel on the basis of homosexuality, and, following the war, the Veterans Administration denied GI benefits to service members who had been discharged because of their sexuality. Within our lifetime, gay people have been the targets of pervasive police harassment, including raids on bars, clubs, and private homes; portrayed by the press as perverts and child molesters; and victimized in horrific hate crimes. Gay and lesbian persons have been prevented from adopting and serving as foster parents, and the majority of states prohibit same-sex marriage. Perhaps most illustrative of the pervasive historic discrimination faced by gays and lesbians was the widespread and enduring criminalization of homosexual conduct. Before the 1960s, all states punished sexual intimacy between men, and, until the publish of Lawrence . . . in 2003, thirteen states categorized sodomy as a felony offense. Our country's military continued to make sodomy a crime until 2013. (internal citations omitted).
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (434 of 518) Page 31 of 36 Case No. 14-1661-CA-01
[itself] from wrongful discrimination. Windsor, 699 F.3d at 184 (2d Cir. 2012). Otherwise, virtually no group would qualify as a suspect or quasi-suspect class, especially the gay community, which has clearly experienced political success in recent years. Love, 2014 WL 2957671 at *6. A more effective inquiry looks to the vulnerability of a class in the political process due to its size or political or cultural history, and under this lens, Floridas same-sex marriage bans exemplifies the political powerlessness of homosexuals. Id. B. Scrutiny to be Applied in the Instant Case Based on the foregoing, it is respectfully suggested that the question of what level of judicial scrutiny applies to sexual orientation discrimination be revisited on appeal. This Court, though, must follow the Florida Supreme Courts direction and apply rational basis review to laws discriminating against homosexuality, provided that the law does not impact a fundamental right. See D.M.T., 129 So. 3d at 341-342. Same-sex marriage bans, however, cannot withstand constitutional review regardless of the standard. See, e.g., Love, 2014 WL 2957671 at *6; De Leon, 975 F. Supp. 2d at 652; DeBoer, 973 F. Supp. 2d at 769. As noted previously, same-sex marriage bans impact the fundamental right to marry, and as such strict scrutiny is appropriate, but the government interests discussed do not support a finding of constitutionality under the strict scrutiny standard. Also as previously noted, those governmental interests fail to pass even the more lenient rational basis test. Furthermore, in addition to not being rationally related to protecting children, banning same-sex marriage irrationally discriminates between homosexual and heterosexual couples because there is no requirement that opposite-sex couples be optimal parents, or to utilize any particular parenting style, in order to be married. If the state declines to make such a requirement applicable to heterosexual couples, there is no rational basis for making such a requirement applicable to same-sex couples. An asserted interest in procreation likewise would irrationally discriminate Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (435 of 518) Page 32 of 36 Case No. 14-1661-CA-01
against homosexuals given that opposite-sex couples may freely marry without regard to the ability or intent to procreate. Legal classifications, moreover, only survive if they are based on a real difference which is reasonably related to the subject and purpose of the regulation. State v. Leicht, 402 So. 2d 1153, 1155 (Fla. 1981) (emphasis added). It, however, is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples. Kitchen, 2014 WL 2868044 at *26 (10th Cir. 2014). Accordingly, it is held that article I, section 27 of Floridas Constitution, and the portions of sections 741.04(1) and 741.212, that preclude same-sex couples from marrying in Florida are void and unenforceable because they violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. VI. Conclusion In 1776, our Nations Founders went to war in pursuit of a then-novel, yet noble, goal: the creation of a government that recognizes its people are endowed . . . with certain inalienable rights and that all are equal in the eyes of the law. THE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776). Unfortunately, history shows that prejudice corrupted the implementation of these ideals and that the corrective wheels of justice turn at a glacial pace. Slavery, for instance, plagued this nation from the time of its birth, and it took a bloody civil war, nearly one hundred years later, to break free from this malady. Segregation, though, took slaverys place, and it was not until the 1960s that we rid ourselves of this similarly horrible disease. Women too, had to fight for equality, and it was not until 1920 that they were first able to vote. Nevertheless, like race, it was not until the social unrest of the 1960s that gender equality had any meaning. The Native Americans also faced rampant discrimination until the 1960s and 1970s as well. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (436 of 518) Page 33 of 36 Case No. 14-1661-CA-01
Notably absent from this protracted march towards social justice was any progress for the gay, lesbian, bisexual, and transgender community until quite recently. However, as evidenced by the avalanche of court decisions unanimously favoring marriage equality, the dam that was denying justice on this front has been broken. The Court, nonetheless, recognizes that its decision today is divisive and will cause some Floridians great discomfort. This decision, though, is not made in defiance of the great people of [Florida] or the [Florida] Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. De Leon, 975 F. Supp. 2d at 665-66. The recognition that the right to marry encompasses categories of people not traditionally considered to be accorded that right has been slow in coming, but it has become increasingly obvious that it is not constitutionally permissible to deny same-sex couples the right to marry. 15
15 See Bourke, 2014 WL 556729 at *11-12: [T]he right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. If this were not so, many practices that we now abhor would still exist. Contrary to how it may seem, there is nothing sudden about this result. The body of constitutional jurisprudence that serves as its foundation has evolved gradually over the past forty-seven years. The Supreme Court took its first step on this journey in 1967 when it decided the landmark case Loving v. Virginia, which declared that Virginia's refusal to marry mixed-race couples violated equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the states, are subject to constitutional scrutiny and must respect the constitutional rights of persons. Windsor, 133 S.Ct. at 2691 (citing Loving). Years later, in 1996, Justice Kennedy first emerged as the Court's swing vote and leading explicator of these issues in Romer v. Evans. Romer, 517 U.S. at 635 (holding that Colorado's constitutional amendment prohibiting all legislative, executive, or judicial action designed to protect homosexual persons violated the Equal Protection Clause). He explained that if the constitutional conception of equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Id. at 63435 (emphasis in original) [internal citation omitted]. These two cases were the virtual roadmaps for the cases to come next. In 2003, Justice Kennedy, again writing for the majority, addressed another facet of the same issue in Lawrence v. Texas, explaining that sexual relations are but one element in a personal bond that is more enduring and holding that a Texas statute criminalizing certain sexual conduct between persons of the same sex violated the Constitution. 539 U.S. at 567. Ten years later came Windsor.
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (437 of 518) Page 34 of 36 Case No. 14-1661-CA-01
The flood of cases that have come out since Windsor amply demonstrates this truth as not one court has found a same-sex marriage ban to be constitutional. As case after case has come out, unified in their well-reasoned constitutional condemnation of the deprivation of one class of persons right to marry, the answer to the question of whether it is constitutionally permissible to deprive same-sex couples of the right to marry has become increasingly obvious: Of course it is not. Preventing couples from marrying solely on the basis of their sexual orientation serves no governmental interest. It serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society. The journey of our Nation towards becoming a more perfect Union does not stop at any particular generation; it is instead a fluid process through every generation. U.S. CONST. pmbl. The Court, therefore, foresees a day when the term same-sex marriage is viewed in the same absurd vein as separate but equal and is thus forsaken and supplanted by ordinary marriage. See Whitewood, 2014 WL 2058105 at *15. Accordingly, it is hereby ORDERED and ADJUDGED that: 1.) Floridas same-sex marriage bans violate the Due Process and Equal Protection Clauses of the United States Constitution, and they also offend basic human dignity. The Plaintiffs Motion for Summary Judgment is therefore GRANTED.
2.) Article 1, section 27 of Floridas Constitution is void and unenforceable.
3.) Except for those portions denying State recognition of valid same-sex marriages in other jurisdictions, section 741.212, Florida Statutes, is also void and unenforceable. The excepted subsections were not challenged in this case, but the Court notes their validity is under review in Floridas Northern Federal District Court.
And, sometime in the next few years at least one other Supreme Court opinion will likely complete this judicial journey. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (438 of 518) Page 35 of 36 Case No. 14-1661-CA-01
4.) The portion of section 741.04(1), Florida Statutes, prohibiting the issuance of a marriage license unless one party is a male and the other party is a female is similarly void and unenforceable.
5.) The Clerk of Courts shall NOT be prosecuted under section 741.05, Florida Statutes, for attempting to comply with this Order.
6.) The Clerk of Courts is also directed to modify its marriage license forms so that they conform to this Orders holding in the manner it deems most appropriate.
7.) Understanding its ruling is unlikely to be the final word on the topic of same-sex marriage, the Court immediately stays this Order pending the outcome of the expected appeal(s). Although this Court recognizes that a person should not be denied a fundamental right for even one day, it feels the uncertainty that could arise if same-sex couples were to marry pursuant to an order that is subsequently reversed on appeal warrants a stay. If affirmed, the Party-Defendants are hereby required to issue marriage licenses to the Plaintiffs and to all otherwise qualified same-sex couples who apply for marriage licenses, subject to the same restrictions and limitations applicable to opposite-sex couples.
8.) Finally, the Court retains jurisdiction for the purposes of enforcing this Order and for subsequent determination and assignment of attorney fees, court costs, etc.
DONE and ORDERED on July 25, 2014.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 07/25/14.
_____________________________ SARAH ZABEL CIRCUIT COURT JUDGE
No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT
The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (439 of 518) Page 36 of 36 Case No. 14-1661-CA-01
Signed original order sent electronically to the Clerk of Courts for filing in the Court file. SARAH I. ZABEL CIRCUIT COURT JUDGE
Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (440 of 518) Only the Westlaw citation is currently available. United States District Court, M.D. Tennessee, Nashville Division. Valeria TANCO and Sophie Jesty, Ijpe DeKoe and Thomas Kostura, and Johno Espejo and Matthew Mansell, Plaintiffs, v. William Edward Bill HASLAM, as Governor of the State of Tennessee, in his official capacity; Larry Martin, as Commissioner of the Department of Finance and Administration, in his official capa- city, and Robert Cooper, as Attorney General & Re- porter of the State of Tennessee, in his official ca- pacity, Defendants. Case No. 3:13cv01159. Filed March 14, 2014. Background: Married, same-sex couples who lived and were legally married in other states before moving to Tennessee brought action against Ten- nessee officials, challenging constitutionality of Tennessee's antirecognition laws, which voided and rendered unenforceable in Tennessee any mar- riage prohibited in the state. Couples moved for preliminary injunction to prohibit officials from en- forcing the antirecognition laws against them. Holdings: The District Court, Aleta A. Trauger, J., held that: (1) couples' cause of action accrued, and Tenness- ee's one-year statute of limitations began to run, each day their constitutional rights were allegedly violated; (2) couples had likelihood of success on merits of their claim that the antirecognition laws violated their constitutional rights; (3) couples would likely suffer irreparable harm ab- sent the injunction; (4) balance of hardships favored issuance of the in- junction; and (5) public interest supported grant of the injunction. Motion granted. West Headnotes [1] Injunction 212 1092 212 Injunction 212II Preliminary, Temporary, and Interlocutory Injunctions in General 212II(B) Factors Considered in General 212k1092 k. Grounds in General; Mul- tiple Factors. Most Cited Cases A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunc- tion is in the public interest. [2] Injunction 212 1033 212 Injunction 212I Injunctions in General; Permanent Injunc- tions in General 212I(B) Factors Considered in General 212k1033 k. Balancing or Weighing Factors; Sliding Scale. Most Cited Cases The factors to be considered in assessing whether an injunction is appropriate are to be bal- anced and are not prerequisites that must be satis- fied. [3] Limitation of Actions 241 58(1) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or De- fense 241k58 Liabilities Created by Statute 241k58(1) k. In General. Most Cited Cases Married, same-sex couples' cause of action ac- crued, and Tennessee's one-year statute of limita- Page 1 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (441 of 518) tions began to run, each day their constitutional rights were allegedly violated by Tennessee's ongo- ing refusal to recognize their marriages in other states pursuant to Tennessee's antirecognition laws, which voided and rendered unenforceable in Tennessee any marriage prohibited in the state. West's T.C.A. Const. Art. 11, 18; West's T.C.A. 283104(a)(3), 363113. [4] Limitation of Actions 241 165 241 Limitation of Actions 241IV Operation and Effect of Bar by Limita- tion 241k165 k. Operation as to Rights or Remed- ies in General. Most Cited Cases The continued enforcement of an unconstitu- tional statute cannot be insulated by the statute of limitations. [5] Limitation of Actions 241 58(1) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or De- fense 241k58 Liabilities Created by Statute 241k58(1) k. In General. Most Cited Cases A law that works an ongoing violation of con- stitutional rights does not become immunized from legal challenge for all time merely because no one challenges it within the applicable state statute of limitations. [6] Limitation of Actions 241 58(1) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or De- fense 241k58 Liabilities Created by Statute 241k58(1) k. In General. Most Cited Cases When a law impinges each day on a plaintiff's constitutional rights, a new limitations period be- gins to run each day as to that day's damage. [7] Civil Rights 78 1762 78 Civil Rights 78V State and Local Remedies 78k1759 Injunction 78k1762 k. Other Particular Cases and Contexts. Most Cited Cases Married, same-sex couples who lived and were legally married in other states before moving to Tennessee, seeking preliminary injunction prohibit- ing Tennessee officials from enforcing Tennessee's antirecognition laws against them, so as to void their marriages and render them unenforceable in Tennessee, had substantial likelihood of success on merits of claim that Tennessee's antirecognition laws violated their constitutional rights under the equal protection clause. U.S.C.A. Const.Amend. 14 ; West's T.C.A. Const. Art. 11, 18; West's T.C.A. 363113. [8] Civil Rights 78 1762 78 Civil Rights 78V State and Local Remedies 78k1759 Injunction 78k1762 k. Other Particular Cases and Contexts. Most Cited Cases Married, same-sex couples who lived and were legally married in other states before moving to Tennessee would likely suffer irreparable harm by violation of their constitutional rights under the equal protection clause in absence of preliminary injunction prohibiting Tennessee officials from en- forcing Tennessee's antirecognition laws against them, so as to void their marriages and render them unenforceable in Tennessee, where state's refusal to recognize their marriages de-legitimized their rela- tionships, degraded them in their interactions with the state, caused them to suffer public indignity, and invited public and private discrimination and stigmatization. U.S.C.A. Const.Amend. 14; West's T.C.A. Const. Art. 11, 18; West's T.C.A. 363113. Page 2 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (442 of 518) [9] Injunction 212 1106 212 Injunction 212II Preliminary, Temporary, and Interlocutory Injunctions in General 212II(B) Factors Considered in General 212k1101 Injury, Hardship, Harm, or Ef- fect 212k1106 k. Irreparable Injury. Most Cited Cases The loss of a constitutional right, even for a minimal period of time, unquestionably constitutes irreparable injury; thus, when reviewing a motion for preliminary injunction, if it is found that a con- stitutional right is being threatened or impaired, a finding of irreparable injury is mandated. [10] Civil Rights 78 1762 78 Civil Rights 78V State and Local Remedies 78k1759 Injunction 78k1762 k. Other Particular Cases and Contexts. Most Cited Cases Balance of hardships favored preliminary in- junction prohibiting Tennessee officials from enfor- cing Tennessee's antirecognition laws against mar- ried, same-sex couples who lived and were legally married in other states before moving to Tennessee, so as to void their marriages and render them unen- forceable in Tennessee, where the antirecognition laws were likely to be found unconstitutional, as vi- olating couples' equal protection rights, and Ten- nessee had no valid interest in enforcing an uncon- stitutional policy. U.S.C.A. Const.Amend. 14; West's T.C.A. Const. Art. 11, 18; West's T.C.A. 363113. [11] Injunction 212 1047 212 Injunction 212I Injunctions in General; Permanent Injunc- tions in General 212I(B) Factors Considered in General 212k1041 Injury, Hardship, Harm, or Ef- fect 212k1047 k. Injury or Inconvenience to Defendant or Respondent. Most Cited Cases No substantial harm can be shown in the en- joinment of an unconstitutional policy. [12] Civil Rights 78 1762 78 Civil Rights 78V State and Local Remedies 78k1759 Injunction 78k1762 k. Other Particular Cases and Contexts. Most Cited Cases Public interest supported grant of preliminary injunction prohibiting Tennessee officials from en- forcing Tennessee's antirecognition laws against married, same-sex couples who lived and were leg- ally married in other states before moving to Ten- nessee, so as to void their marriages and render them unenforceable in Tennessee, although issuing the injunction would temporarily stay enforcement of democratically enacted laws, where the antirecognition laws were likely unconstitutional as violating the couples' equal protection rights. U.S.C.A. Const.Amend. 14; West's T.C.A. Const. Art. 11, 18; West's T.C.A. 363113. [13] Injunction 212 1039 212 Injunction 212I Injunctions in General; Permanent Injunc- tions in General 212I(B) Factors Considered in General 212k1039 k. Public Interest Considera- tions. Most Cited Cases Ultimately, it is always in the public interest to prevent the violation of a party's constitutional rights, and, for purposes of assessing whether an in- junction is appropriate, the public interest is pro- moted by the robust enforcement of constitutional rights. West Codenotes Validity Called into DoubtWest's T.C.A. 363113.Abby Rose Rubenfeld, Rubenfeld Law Office, PC, John L. Farringer, IV, Phillip F. Cramer , Scott Hickman, William L. Harbison, Sherrard & Page 3 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (443 of 518) Roe, Nashville, TN, ASAF ORR, Christopher F. Stoll, Shannon P. Minter, San Francisco, CA, Maureen T. Holland, Holland & Associates, PLLC, Memphis, TN, Regina M. Lambert, Law Office of Regina M. Lambert, Knoxville, TN, for Plaintiffs. Martha A. Campbell, Kevin Gene Steiling, Ten- nessee Attorney General's Office, Nashville, TN, for Defendants. MEMORANDUM ALETA A. TRAUGER, District Judge. *1 Before the court is the plaintiffs' Motion for Preliminary Injunction (Docket No. 29), to which the defendants filed a Response in opposition (Docket No. 35) and the Family Action Council of Tennessee (FACT) filed an amicus brief in op- position (Docket No. 43), and the plaintiffs filed a Reply (Docket No. 46) and several Notices of Fil- ing of Supplementary Authority (Docket Nos. 48, 55, 56, and 58). For the reasons stated herein, the motion will be granted. OVERVIEW The plaintiffs are three married, same-sex couples who lived and were legally married in other states before moving to Tennessee. FN1 Tennessee does not recognize their marriages for one reason only: they do not reflect a union between one man and one woman. See Tenn. Const. Art. XI, 18; Tenn.Code Ann. 363113 (collectively, the AntiRecognition Laws). FN2 The plaintiffs challenge the constitutionality of the AntiRecognition Laws. FN3 Pending a final de- cision on the merits of their claims, the plaintiffs seek a preliminary injunction that would prevent the defendants from enforcing the AntiRecognition Laws against them. At the outset, given the sensitivity of the issues presented, the court emphasizes the narrowness of the decision it is issuing today. First, the nature of a preliminary injunction remedy is just thatpreliminary. It is not a final judgment on the merits of a case. Instead, it prelim- inarily enjoins a party (here, effectively, the State of Tennessee) from engaging in a particular action until the court can rule on the merits of the plaintiffs' claims at a later stage, typically with the benefit of more evidence and legal authority. In making its decision, the court must decide, among other things, whether the plaintiffs are likely to pre- vail on the merits of their claims, not that they have prevailed or that they necessarily will prevail on their claims. In other words, the court's decision today simply reflects its best projection, based on the evidence and the existing state of the law, as to whether the plaintiffs are likely to win their case. Currently, all relevant federal authority indicates that the plaintiffs in this case are indeed likely to prevail on their claims that the AntiRecognition Laws are unconstitutional. That said, by the time that this court is asked to render a final judgment, it may be that other federal courts will have reached a different interpretation that favors the defendants' position. By the same token, it may be that federal courts will continue uniformly to strike down anti- recognition laws, state same-sex marriage bans, and other laws that discriminate based on sexual orient- ation. The impact of future decisions, which are forthcoming as the result of continuing litigation in other federal trial and appellate courts across the country, will inevitably influence the ultimate dis- position of this case. Second, the plaintiffs have not directly chal- lenged Tennessee's refusal to permit same-sex mar- riages from being consummated in Tennessee. In- stead, the plaintiffs challenge only Tennessee's re- fusal to recognize marriages legally consummated by same-sex couples in other states, such as a same- sex couple that weds in New York (a state that per- mits same-sex marriage) before moving to Tenness- ee. *2 Third, even with respect to the AntiRecognition Laws, the plaintiffs seek tempor- ary relief only as to the six specific plaintiffs (three couples) remaining in this lawsuit. They do not Page 4 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (444 of 518) seek class relief in their Complaint or in their re- quest for a preliminary injunction. As explained in this opinion, the plaintiffs have persuaded the court to enjoin enforcement of the AntiRecognition Laws against them, pending a fi- nal decision on the merits. The court's order only means that, at least for the time being, Tennessee will not be able to enforce the AntiRecognition Laws against six people (three same-sex couples) until the court renders a final judgment in the case. Thus, even after today, Tennessee's ban on the con- summation of same-sex marriages within Tennessee remains in place, and Tennessee may continue to refuse to recognize same-sex marriages consum- mated in other states, except as to the six plaintiffs in this case. The court's opinion should not be con- strued in any other way. FN4 THE PLAINTIFFS The plaintiffs in this case have filed unrebutted affidavits that describe their personal backgrounds, how they met their respective spouses, when and why they moved to Tennessee, and the harm that they have suffered, or may suffer, from Tennessee's enforcement of the AntiRecognition Laws. The court will summarize the circumstances of each couple briefly. I. Dr. Valeria Tanco and Dr. Sophia Jesty Valeria Tanco and Sophia Jesty are both pro- fessors at the University of Tennessee College of Veterinary Medicine. They met in 2009 at the Col- lege of Veterinary Medicine at Cornell University in Ithaca, New York, fell in love in 2010, and leg- ally married each other in New York on September 9, 2011. After spending a year living apart, they sought to find work as professors in the same geo- graphic area. When the University of Tennessee's College of Veterinary Medicine offered positions to both of them, they accepted the offers and began residing together in Knoxville, Tennessee. In addition to certain alleged injuries common to all plaintiffs, Dr. Tanco and Dr. Jesty have sever- al special concerns. First, they purchased a house together, but, because Tennessee law may treat them as strangers rather than as a married couple, they are not assured of the same property protec- tions in their home as a heterosexual married couple. Second, the University of Tennessee health insurance system will not permit them to combine their respective individual health insurance plans into a family plan, because UT's insurance plan in- corporates the AntiRecognition Laws. Third, in the summer of 2013, Dr. Tanco became pregnant through artificial insemination, and her due date is March 21, 2014. FN5 Under the existing state of the law in Tennessee, upon the birth of their child, Dr. Jesty will not be recognized as the child's parent, and many of the legal rights that would otherwise attach to the birth of a child (artificially insemin- ated or otherwise) will not apply to Dr. Jesty or to the child. These include the child's right to Social Security benefits as a surviving child if Dr. Jesty should die, the right for Dr. Jesty to visit her child at a hospital if Dr. Tanco is unable to give consent to her presence at the time the baby is born, and the right of Dr. Jesty to make medical decisions regard- ing the medical care provided to their baby in the event that Dr. Tanco is unable to make those de- cisions. Fourth, and finally, they are concerned about the environment in which their child will be raised, fearing that Tennessee's refusal to recognize her parents' marriage will stigmatize her, cause her to believe that she and her family are entitled to less dignity than her peers and their families, and give her the impression that her parents' love and their family unit is somehow less stable. II. Sergeant Ijpe DeKoe & Mr. Thomas Kostura *3 Ijpe DeKoe is a Sergeant First Class in the United States Army Reserves. He resides and is sta- tioned in Memphis, Tennessee. Thomas Kostura is a graduate student at the Memphis College of Fine Arts. In March 2011, Sgt. DeKoe began dating Mr. Kostura, who was a New York resident at the time. They fell in love that year. At some point before August 2011, Sgt. DeKoe was transferred to Fort Dix in New Jersey in preparation for deployment to Afghanistan. On August 4, 2011, before Sgt. Page 5 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (445 of 518) DeKoe was deployed, he and Mr. Kostura legally married in New York. In May 2012, after Sgt. DeKoe returned from his deployment to Afgh- anistan, he and Mr. Kostura moved to Memphis, where was DeKoe was again stationed. On September 3, 2013, the United States De- partment of Defense began recognizing Sgt. DeKoe and Mr. Kostura's marriage. Although the military recognizes Sgt. DeKoe's marriage to Mr. Kostura, Tennessee does not. Sgt. DeKoe avers that, [a]s someone who has dedicated my career and risked my life to protect American values of freedom, liberty, and equality, it is particularly painful to re- turn home after serving in Afghanistan only to have my citizenship diminished by Tennessee's refusal to recognize our marriage. III. Johno Espejo & Matthew Mansell Johno Espejo met Matthew Mansell in approx- imately 1995 in San Francisco, California. They began dating and have been in a committed rela- tionship since that time. While living in Alameda, California, they decided to start a family together by adopting children from the Alameda foster care system. In December 2007, the foster agency placed a thirteen-month old boy in their home. Ap- proximately five months later, in 2008, the agency placed a newborn girl in their home. On August 5, 2008, Mr. Espejo and Mr. Mansell legally married each other in California. On September 25, 2009, Mr. Espejo and Mr. Mansell legally adopted the two foster children. Mr. Espejo gave up his job as a forklift driver to be a stay-at-home parent for their children. Approximately four years ago, Mr. Mansell began working at a large international law firm in San Francisco, California, conducting conflict- of-interest checks. In 2012, the law firm announced that it would be centralizing and relocating its ad- ministrative services, including Mr. Mansell's de- partment, to a new office located in Nashville, Ten- nessee. In May 2012, Mr. Espejo and Mr. Mansell moved to Franklin, Tennessee, so that Mansell could continue working for the law firm. Mr. Es- pejo took a part-time job at his local YMCA, which allowed him to balance his duties as a stay-at-home parent with his job. Similar to the fears that Dr. Tanco and Dr. Jesty harbor for the child they are expecting, Mr. Espejo and Mr. Mansell are concerned about the impact of Tennessee's AntiRecognition laws on their children. IV. Common Statements The plaintiffs' declarations contain statements about their experiences, hopes, and fears. Each couple married for several reasons, including their commitment to love and support one another, to demonstrate their mutual commitment to their fam- ily, friends, and colleagues, and to show others that they should be treated as a family. They also mar- ried to make a legally binding mutual commitment, to join their resources together in a legal unit, and to be treated by others as a legal family unit, rather than as legally unrelated individuals. Finally, each couple married so that they could access the legal responsibilities of marriage to protect themselves and their families, just as heterosexual couples do. *4 The plaintiffs agree that they have been warmly welcomed by many Tennesseans, including their neighbors and colleagues. However, each couple is aware that Tennessee does not afford them the same rights as opposite-sex married couples and that the state government does not treat their relationship with the same dignity and respect as opposite-sex married couples. Because Tenness- ee law does not extend them certain rights of mar- riage, including certain protections in times of crisis, emergency, or death, they are denied the se- curity and peace of mind that those protections provide to other families. Although they acknow- ledge that they can take additional steps to reduce some of these uncertaintiessuch as executing powers of attorney, wills, and other probate docu- mentsthey aver that these steps would be costly and time-consuming, that opposite-sex married couples would not need to take these measures, and that they would result in only minimal legal protec- Page 6 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (446 of 518) tions relative to the full panoply of rights that other- wise attach to state-sanctioned marriage. The couples have also described how Tenness- ee's refusal to recognize their marriages causes them dignitary and reputational harm. When they interact with Tennessee officials or fill out official forms to identify themselves as married, they brace themselves for degrading experiences that often oc- cur because of Tennessee's refusal to recognize their marriages. They regard these experiences as insulting to their personal dignity, insulting to their family's dignity, and demeaning to their relation- ships. The plaintiffs also state that, by treating their marriages as if they did not exist, the state of Ten- nessee encourages private citizens to deny their marriages and exposes them to discrimination in their daily lives. Finally, the plaintiffs aver as follows: Every day that Tennessee refuses to respect our marriage is a day that our family must suffer the indignity, stress, and stigma of not knowing whether or when our marriage will be recognized. Unlike opposite-sex couples who have the secur- ity of knowing that their marriage will be univer- sally respected by the state and by private actors, Tennessee's constitutional and statutory denial of recognition to our marriage means that whatever recognition our marriage may receive is only by the forbearance and good graces of private actors. V. This Lawsuit and the Preliminary Injunction Motion On October 23, 2013, the plaintiffs filed this lawsuit, which challenges the constitutionality of the AntiRecognition Laws. On November 29, 2013, the plaintiffs moved to enjoin enforcement of the AntiRecognition Laws against them, arguing that the AntiRecognition Laws violate their rights under the United States Constitution to due process, interstate travel, and equal protection. FN6 The government opposes the motion, contending that the claims are untimely, that the plaintiffs are not likely to succeed on the merits of their claims, that the plaintiffs will suffer no irreparable harm in the absence of a preliminary injunction, that the balance of harms favors the government, and that the public interest would be best served by denying the motion. FN7 PRELIMINARY INJUNCTION STANDARD *5 [1][2] Under Fed.R.Civ.P. 65, the court may issue a preliminary injunction under appropriate circumstances. In assessing whether an injunction is appropriate, the court applies the following stand- ard: A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the mer- its, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an in- junction is in the public interest. Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir.2012) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). These four considerations are factors to be balanced and not prerequisites that must be satisfied. Nat'l Viatical, Inc. v. Uni- versal Settlements Int'l, Inc., 716 F.3d 952 (6th Cir.2013) (citing Am. Imaging Servs., Inc. v. EaglePicher Indus., Inc., 963 F.2d 855, 859 (6th Cir.1992)); Performance Unlimited v. Questar Pubs., Inc., 52 F.3d 1373, 1381 (6th Cir.1995). ANALYSIS I. Likelihood of Success on the Merits A. Statute of Limitations [3] The parties agree that Tennessee's one-year statute of limitations governs the plaintiffs' claims. See Tenn.Code Ann. 283104(a)(3); Hughes v. Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir.2000). The defendants argue that the one-year statute of limitations bars the plaintiffs' claims. Page 7 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (447 of 518) [4][5][6] The continued enforcement of an un- constitutional statute cannot be insulated by the statute of limitations. Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 522 (6th Cir.1997). A law that works an ongoing violation of constitution- al rights does not become immunized from legal challenge for all time merely because no one chal- lenges it within the applicable state statute of lim- itations. Id. Where, as here, a law impinges each day on a plaintiff's constitutional rights, a new lim- itations period begins to run each day as to that day's damage. Id. Here, the plaintiffs have each al- leged various ongoing harms resulting from Ten- nessee's refusal to recognize their marriages, in- cluding dignitary harms and reputational harms, as well as daily concerns related to parentage, medical care, insurance, property ownership, and the like. These injuries occurred within a year of filing suit and, for the reasons explained in the next section, likely reflect ongoing deprivations of their constitu- tional rights. Therefore, the court finds that the stat- ute of limitations does not bar the plaintiffs' claims. B. Alleged Deprivation of Constitutional Rights [7] The parties vigorously dispute whether Tennessee's AntiRecognition Laws violate the plaintiffs' constitutional rights. The plaintiffs, the defendants, and FACT (as amicus curiae ) have thoroughly and cogently briefed their respective po- sitions concerning the complex, sensitive, and im- portant legal issues presented by this case. In United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the Su- preme Court struck down a provision of the federal Defense of Marriage Act and held that the federal government cannot refuse to recognize valid mar- riages in states that recognize same-sex marriage. Since the Supreme Court issued Windsor, numerous federal courts, including courts within the Sixth Circuit, have addressed the impact of Windsor on state laws relating to same-sex couples and sexual orientation. These courts have uniformly rejected a narrow reading of Windsorsuch as that advanced by the defendants hereand have found that Wind- sor protects the rights of same-sex couples in vari- ous contexts, notwithstanding earlier Supreme Court and circuit court precedent that arguably sug- gested otherwise. FN8 These cases include decisions both inside and outside of this circuit, finding that similar state anti-recognition laws are or likely are unconstitutional ( Bourke, Obergefell I and II, and De Leon), decisions granting a preliminary injunc- tion under similar circumstances ( De Leon, Bostic ), and decisions finding that same-sex marriage bans are unconstitutional in the first place ( De Le- on, Kitchen, Bostic, and Lee ). FN9 In these thor- ough and well-reasoned cases, courts have found that same-sex marriage bans and/or anti-recognition laws are unconstitutional because they violate the Equal Protection Clause and/or the Due Process Clause, even under rational basis review, which is the least demanding form of constitutional re- view. *6 In light of this rising tide of persuasive post- Windsor federal caselaw, it is no leap to conclude that the plaintiffs here are likely to succeed in their challenge to Tennessee's AntiRecognition Laws. With respect to the plaintiffs' Equal Protection Clause challenge, the defendants offer arguments that other federal courts have already considered and have consistently rejected, such as the argu- ment that notions of federalism permit Tennessee to discriminate against same-sex marriages consum- mated in other states, that Windsor does not bind the states the same way that it binds the federal government, and that AntiRecognition Laws have a rational basis because they further a state's in- terest in procreation, which is essentially the only rational basis advanced by the defendants here. FN10 In particular, at this stage, the court finds Judge Heyburn's equal protection analysis in Bourke, which involved an analogous Kentucky anti- recognition law, to be especially persuasive with re- spect to the plaintiffs' likelihood of success on the merits of their Equal Protection Clause challenge in this case. There, the court analyzed the lineage of Page 8 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (448 of 518) Supreme Court and Sixth Circuit precedent on the issue of marriage generally and same-sex marriage specifically, the animating principles in Windsor, and the relationship between discriminatory state marriage laws and the United States Constitution's guarantees, to which any state law is subordinate. See F.Supp.2d at , 2014 WL 556729, at *312. Although that court strongly sus- pected that discrimination based on sexual orienta- tion might warrant heightened scrutiny, it neverthe- less subjected the anti-recognition law to a rational basis test under the Equal Protection Clause, found that none of the offered justifications satisfied ra- tional basis review, and held that the anti- recognition law was unconstitutional. Id. In a final section, the court explained how its decision was consistent with constitutional values and require- ments, was respectful of individual faith, was con- sistent with the public's desire to maintain the sanc- tity of marriage, fostered equality under the law, protected minority rights, and was the natural result of a long but steady progression in Supreme Court jurisprudence from Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) through Windsor in 2013. Id. at , 2014 WL 556729 at *912. The anti-recognition laws at issue here and in other cases are substantially similar and are subject to the same constitutional framework. The defend- ants have not persuaded the court that Tennessee's AntiRecognition Laws will likely suffer a differ- ent fate than the anti-recognition laws struck down and/or enjoined in Bourke, Obergefell, and De Le- on. Accordingly, the court finds that the plaintiffs are likely to succeed on the merits of their equal protection challenge, even under a rational basis standard of review. For this reason, the court need not address at this stage whether sexual orientation discrimination merits a heightened standard of con- stitutional review or whether the plaintiffs are likely to prevail on their additional due process and right to travel challenges. II. Remaining Rule 65 Factors A. Irreparable Harm *7 [8][9] The loss of a constitutional right, even for a minimal period[ ] of time, unquestion- ably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Thus, when reviewing a motion for pre- liminary injunction, if it is found that a constitu- tional right is being threatened or impaired, a find- ing of irreparable injury is mandated. Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.2001). FN11 Because the court has found that the plaintiffs are likely to prevail on their claims that the AntiRecognition Laws are unconstitutional, it ax- iomatic that the continued enforcement of those laws will cause them to suffer irreparable harm. Moreover, the evidence shows that the plaintiffs are suffering dignitary and practical harms that cannot be resolved through monetary re- lief. The state's refusal to recognize the plaintiffs' marriages de-legitimizes their relationships, de- grades them in their interactions with the state, causes them to suffer public indignity, and invites public and private discrimination and stigmatiza- tion. For example, Sergeant DeKoe, who served nearly a year abroad in defense of the United States, is considered married while on military property in Memphis but unmarried off of it, which he understandably finds painful, demeaning, and di- minishing. These are harms against which the Con- stitution protects. See Windsor, 133 S.Ct. at 269596. Also, relative to opposite-sex couples, the plaintiffs are deprived of some state law protec- tions, or at least the certainty that the same rights afforded to heterosexual marriages will be afforded to them. For example, they have no assurance that Tennessee will recognize their ownership of a home as tenants by the entirety, rather than as strangers with divisible interests. To the extent that plaintiffs could secure some of these rights by contract, they will be unfairly forced to engage in time-consuming Page 9 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (449 of 518) and expensive measures to secure them, and even then only with respect to a subset of marriage rights. For Dr. Jesty and Dr. Tanco, and for Mr. Es- pejo and Mr. Mansell, there is also an imminent risk of potential harm to their children during their developing years from the stigmatization and den- igration of their family relationship. The circum- stances of Dr. Jesty and Dr. Tanco are particularly compelling: their baby is due any day, and any complications or medical emergencies associated with the baby's birthparticularly one incapacitat- ing Dr. Tancomight require Dr. Jesty to make medical decisions for Dr. Tanco or their child. Fur- thermore, if Dr. Jesty were to die, it appears that her child would not be entitled to Social Security benefits as a surviving child. Finally, Dr. Tanco reasonably fears that Dr. Jesty will not be permitted to see the baby in the hospital if Dr. Tanco is other- wise unable to give consent. FN12 For all of these reasons, the court finds that the plaintiffs have shown that they will suffer irrepar- able harm from enforcement of the AntiRecognition Laws. See Obergefell I, 2013 WL 3814262, at *67; De Leon, F.Supp.2d at , 2014 WL 715741, at *2425. B. Balance of the Equities *8 [10][11] [N]o substantial harm can be shown in the enjoinment of an unconstitutional policy. Chabad of S. Ohio & Congregation Lub- avitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir.2004); Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 274 F.3d 377, 400 (6th Cir.2001). Here, because the court has found that the AntiRecognition Laws are likely to be found unconstitutional, the balance of the equities necessarily favors the plaintiffs. Ten- nessee has no valid interest in enforcing an uncon- stitutional policy. Furthermore, the administrative burden on Tennessee from preliminarily recogniz- ing the marriages of the three couples in this case would be negligible. Therefore, the court finds that the balance of the equities favors issuance of a pre- liminary injunction. FN13 C. Public Interest [12] The defendants argue that granting an in- junction would override by judicial fiat the results of Tennessee's valid democratic process establish- ing the public policy of this state, cause harm to Tennessee in the form of an affront to its sover- eignty, and create the impression that Tennessee's public policy is subservient to that of other States. (Defs.' Mem. at pp. 2526.) As the defendants point out, Tennessee overwhelmingly passed the constitu- tional amendment at issue with approximately 80% support in 2006. [13] Although the defendants are correct that issuing an injunction will temporarily stay the en- forcement of democratically enacted laws, that is essentially the case with any federal decision that overturns or stays enforcement of a state law that violates the federal Constitution. Ultimately, [i]t is always in the public interest to prevent the violation of a party's constitutional rights. G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir.1994). Thus, [t]he public in- terest is promoted by the robust enforcement of constitutional rights. Am. Freedom Def. Initiative v. Suburban Mobility Authority for Reg'l Transp., 698 F.3d 885, 896 (6th Cir.2012); Planned Parent- hood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir.1987) ([T]he public is certainly interested in the prevention of enforce- ment of ordinances which may be unconstitution- al.); Chabad, 363 F.3d at 436 ([T]he public in- terest is served by preventing the violation of con- stitutional rights.); see also Obergefell I, 2013 WL 3814262, at *7; De Leon, F.Supp.2d at , 2014 WL 715741, at *2627. Applying that principle here, the court finds that issuing an in- junction would serve the public interest because the AntiRecognition Laws are likely unconstitutional. III. Summary In determining whether a preliminary injunc- tion is warranted, the court's obligation is to bal- ance the four Rule 65 factors. Here, all four factors Page 10 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (450 of 518) favor the plaintiffs, and little balancing need be done. Therefore, the court will issue a preliminary injunction that bars enforcement of the AntiRecognition Laws against the plaintiffs. The injunction will remain in force until the court renders judgment on the merits of the plaintiffs' claims at a later stage in this case. Again, the court emphasizes the narrow nature of its holding today: the court's order temporarily enjoins enforcement of the AntiRecognition Laws only as to the six plaintiffs in this case. The court is not directly hold- ing that Tennessee's AntiRecognition Laws are ne- cessarily unconstitutional or that Tennessee's ban on the consummation of same-sex marriages within Tennessee is unconstitutional. *9 At some point in the future, likely with the benefit of additional precedent from circuit courts and, perhaps, the Supreme Court, the court will be asked to make a final ruling on the plaintiffs' claims. At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs' marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American his- tory. CONCLUSION For the reasons stated herein, the plaintiffs' Motion for Preliminary Injunction will be granted, and the court will issue an injunction against the defendants, prohibiting them from enforcing the AntiRecognition Laws against the six plaintiffs in this case. An appropriate order will enter. FN1. This lawsuit was originally filed by four same-sex couples. On March 10, 2014, the parties stipulated to the dismissal of one of the couples (Kellie Miller and Vanessa DeVillez) and defendant Bill Gib- bons, Commissioner of the Department of Safety and Homeland Security. (Docket No. 59.) The remaining plaintiffs are Va- leria Tanco and Sophie Jesty, Ijpe DeKoe and Thomas Kostura, and Johno Espejo and Matthew Mansell. The remaining de- fendants are Governor Bill Haslam, Com- missioner of the Department of Finance and Administration Larry Martin, and At- torney General Robert Cooper. FN2. Tenn.Code Ann. 363113 provides that, among other things, [i]f an- other state or foreign jurisdiction issues a license for persons to marry, which mar- riages are prohibited in this state, any such marriage shall be void and unenforceable in this state. Id. at 113(d). The statute fur- ther provides that it is [ ] the public policy of this state that the historical institution and legal contract solemnizing the relation- ship of (1) man and one (1) woman shall be the only legally recognized marital con- tract in this state in order to provide the unique and exclusive rights and privileges to marriage. Id. at 113(a). The Tenness- ee Constitution, which was amended in 2006 to incorporate the so-called Tennessee Marriage Protection Amend- ment following a popular referendum, contains essentially the same provisions. FN3. To the extent that the court refer- ences laws in other states that similarly discriminate against same-sex marriages consummated in another state that recog- nizes same-sex marriage, the court will refer to those laws without capitalization as anti-recognition laws for ease of ref- erence. FN4. In De Leon v. Perry, F.Supp.2d , 2014 WL 715741 (W.D.Tex. Feb. 26, 2014), the parties disputed whether the district's injunction against enforcement of a similar Texas anti-recognition law ap- plied only to the plaintiffs in that case, as opposed to all similarly situated plaintiffs statewide. In a footnote, the court found Page 11 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (451 of 518) that its preliminary injunction would apply statewide. Id. at n. 7, 2014 WL 715741 at *27 n. 7. Here, the plaintiffs have not argued that their injunction should or would apply statewide; to the contrary, they have argued that the narrow- ness of the requested injunction justifies its issuance (see Docket No. 30 at p. 39 (Any administrative burden on the State from re- cognizing Plaintiffs' four additional valid marriages would be negligible.)), and their request for relief is limited to the plaintiffs in this case (see id. at p. 40 (Plaintiffs respectfully request that the Court issue a preliminary injunction bar- ring Defendants and those under their su- pervision from enforcing the AntiRecognition Laws against the four plaintiff couples in this case while this ac- tion is pending.) (emphasis added)). Be- cause the plaintiffs have limited their re- quest for preliminary injunctive relief in this fashion, the court expresses no opinion concerning the potential application of its ruling statewide, if these or any other po- tential plaintiffs were to request broader relief in the future. FN5. In support of the plaintiffs' Motion to Ascertain Status (Docket No. 61), the plaintiffs filed a supplemental Declaration of Valeria Tanco (Docket No. 62), which, among other things, stated Dr. Tanco's due date. FN6. In support of their motion, the plaintiffs filed a Memorandum of Law (Docket No. 30), an Appendix of cases (Docket No. 31), and a Notice containing separate declarations from each plaintiff (Docket No. 32). FN7. In support of their brief in opposi- tion, the defendants filed an Appendix of legal authority (Docket No. 36) and a No- tice containing the Declaration of Mark Goins, State Coordinator of Elections (Docket No. 37, Attachment No. 1), and the Affidavit of Connie Walden (id., At- tachment No. 2). FACT filed an amicus brief in support of the defendants' position. (Docket No. 43.) FN8. See generally Obergefell v. Kasich, 2013 WL 3814262 (S.D.Ohio July 22, 2013) ( Obergefell I ) (preliminarily en- joining enforcement of Ohio anti- recognition law); Kitchen v. Herbert, 961 F.Supp.2d 1181 (D.Utah 2013) (Utah ban on same-sex marriage unconstitutional); Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D.Ohio 2013) ( Obergefell II ) (Ohio anti-recognition law unconstitutional); Bishop v. United States, 962 F.Supp.2d 1252 (N.D.Okla.2014) (Oklahoma ban on same-sex marriage unconstitutional); Bourke v. Beshear, F.Supp.2d , 2014 WL 556729 (W.D.Ky. Feb. 12, 2014) (finding that Kentucky anti-recognition law was unconstitutional); Bostic v. Rainey, 970 F.Supp.2d 456 (E.D.Va.2014) (Virginia ban on same-sex marriage uncon- stitutional); Lee v. Orr, 2014 WL 683680 (N.D.Ill. Feb. 21, 2014) (Illinois ban on same-sex marriage unconstitutional as ap- plied to a particular county); De Leon, F.Supp.2d , 2014 WL 715741 (issuing preliminary injunction barring Texas from enforcing prohibition on re- cognition of out-of-state same-sex mar- riages). FN9. Notably, Oregon, Virginia, and Nevada have also declined to defend or have abandoned their defense of same-sex marriage bans in those states, on the basis that the laws are unconstitutional. See, e.g. Geiger et al. v. Kitzhaber, et al., Case No. 6:13cv018340MC (D.Or.), Geiger Docket No. 47 at 28 (State Defendants will not defend the Oregon ban on same- Page 12 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (452 of 518) sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot with- stand a federal constitutional challenge un- der any standard of review.); Bostic, 970 F.Supp.2d at , 2014 WL 561978, at *2 (On January 23, 2014, Defendant Rainey, in conjunction with the Office of the Attor- ney General, submitted a formal change in position, and relinquished her prior de- fense of Virginia's Marriage Laws.); Sev- cik et al. v. Sandoval et al., No. 1217668 (9th Cir.) (pending appeal), Sevcik Appel- late Docket No. 171 (defendants withdraw- ing their brief in support of appeal, be- cause intervening caselaw indicated that discrimination against same-sex couples is unconstitutional). In a recent case, the Ninth Circuit also found that classifica- tions based on sexual orientation require heightened scrutiny. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 48384 (9th Cir.2014). Numerous state courts have also found that state bans on same-sex marriage are or likely are un- constitutional. See, e.g., Garden State Equality v. Dow, 216 N.J. 314, 79 A.3d 1036 (2013) (in light of Windsor, refusing to stay trial court order requiring New Jer- sey officials to administer marriage laws equally for same-sex couples). FN10. (See Docket No. 35, Defs. Mem., at pp. 1417.) FN11. This rule has been applied in a vari- ety of constitutional contexts, including equal protection challenges premised on same-sex discrimination. See Bassett v. Snyder, 951 F.Supp.2d 939 (E.D.Mich.2013) (enjoining Michigan law prohibiting public employers from provid- ing medical and other fringe benefits to any person co-habitating with a public em- ployee unless that person was legally mar- ried to the employee, was a legal depend- ent, or was otherwise ineligible to inherit under the state's intestacy laws); Oberge- fell I, 2013 WL 3814262, at *6 and *6 n. 1 (collecting cases); De Leon, F.Supp.2d at , 2014 WL 715741, at *25; see also Elrod, 427 U.S. at 373, 96 S.Ct. 2673 (First Amendment); Ramirez v. Webb, 835 F.2d 1153, 1158 (6th Cir.1987) (Fourth Amendment); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981) (fundamental right to privacy under Fourteenth and/or Ninth Amend- ment) (cited approvingly in Bonnell, 241 F.3d at 809). FN12. The state has taken the position that the plaintiffs' fears, including those of Dr. Tanco and Dr. Jesty with respect to the up- coming birth of their baby and their rights in their home should one of them die, are speculative, conjectural, and hypothetical. But the court need not wait, for instance, for Dr. Tanco to die in childbirth to conclude that she and her spouse are suffering or will suffer irrepar- able injury from enforcement of the AntiRecognition Laws. FN13. At least two federal courts have similarly found that, where laws discrimin- ating against same-sex marriages are likely to be found unconstitutional, the balance of the equities unequivocally favors the plaintiffs. As explained in Obergefell I: No one beyond the plaintiffs themselves will be affected by such a limited order at all. Without an injunction, however, the harm to Plaintiffs is severe. Plaintiffs are not currently accorded the same dig- nity and recognition as similarly situated opposite-sex couples. Moreover, upon Mr. Arthur's death, Plaintiffs' legally valid marriage will be incorrectly recor- ded in Ohio as not existing. Balanced Page 13 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (453 of 518) against this severe and irreparable harm to Plaintiffs is the truth that there is no evidence in the record that the issuance of a preliminary injunction would cause substantial harm to the public. 2013 WL 3814262, at *7; see also De Leon, F.Supp.2d at , 2014 WL 715741, at *2526 (finding that injury to plaintiff outweighed dam- age to Texas from enjoining enforcement of same-sex marriage ban and anti- recognition law, and stating that an in- dividual's federal constitutional rights are not submitted to state vote and may not depend on the outcome of state legis- lation or a state constitution). M.D.Tenn.,2014. Tanco v. Haslam --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) END OF DOCUMENT Page 14 --- F.Supp.2d ----, 2014 WL 997525 (M.D.Tenn.) (Cite as: 2014 WL 997525 (M.D.Tenn.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (454 of 518) For Opinion See 133 S.Ct. 2675 , 133 S.Ct. 1521 , 133 S.Ct. 1515 , 133 S.Ct. 815 , 133 S.Ct. 814 , 133 S.Ct. 786 U.S.,2013. Supreme Court of the United States. UNITED STATES OF AMERICA, Petitioner, v. Edith Schlain WINDSOR andBIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRES- ENTATIVES, Respondents. No. 12-307. January 22, 2013. On Writ of Certiorari to the United States Court of Appeals for the Second Circuit Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Repres- entatives Kerry W. Kircher General Counsel William Pittard Deputy General Counsel Christine Davenport Senior Assistant Counsel Todd B. Tatelman Mary Beth Walker Eleni M. Roumel Assistant Counsels Office of General Counsel United States House of Representatives 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700 Paul D. Clement Counsel of Record H. Christopher Bartolomucci Nicholas J. Nelson Michael H. McGinley Bancroft PLLC 1919 M Street, N.W. Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives *i QUESTION PRESENTED Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, violates the equal protection compon- ent of the Due Process Clause of the Fifth Amend- ment. *II PARTIES TO THE PROCEEDING The Bipartisan Legal Advisory Group of the United States House of Representatives intervened as a de- fendant in the district court and was an appellant and appellee in the court of appeals. [FN*] FN* The United States House of Repres- entatives has articulated its institutional position in litigation matters through a five-member bipartisan leadership group since at least the early 1980's (although the formulation of the group's name has changed somewhat over time). Since 1993, the House rules have formally acknow- ledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Rep- resentatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representat- ives, 112th Cong. (2011). While the group seeks consensus whenever possible, it, like the institution it represents, functions on a majoritarian basis when consensus cannot 2013 WL 267026 (U.S.) Page 1 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (455 of 518) be achieved. The Bipartisan Legal Advis- ory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Ma- jority Leader, the Honorable Kevin Mc- Carthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3's constitution- ality in this and other cases. Edith Schlain Windsor was the plaintiff in the dis- trict court and an appellee in the court of appeals. The United States of America was a defendant in the district court and an appellant and appellee in the court of appeals. West Headnotes Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Marriage 253 54(2) 253 Marriage 253k54 Effect of Informal or Invalid Marriage or Union 253k54(2) k. Same-sex and other non- traditional union. Most Cited Cases Does Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C.A. 7, which defines marriage under federal law as the legal union between one man and one woman as husband and wife, thereby excluding same-sex couples, violate the equal pro- tection component of the Due Process Clause of the Fifth Amendment? U.S.C.A. Const.Amend. 5. *iii TABLE OF CONTENTS QUESTION PRESENTED ... i PARTIES TO THE PROCEEDING ... ii TABLE OF AUTHORITIES ... vi OPINIONS BELOW ... 1 JURISDICTION ... 1 CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED ... 1 STATEMENT OF THE CASE ... 2 A. The Defense of Marriage Act ... 2 B. The Justice Department Stops Defending DOMA and Starts Attacking It ... 12 C. Ms. Windsor's Challenge to DOMA ... 14 SUMMARY OF THE ARGUMENT ... 19 ARGUMENT ... 22 I. Rational Basis Review Applies To DOMA ... 24 II. Multiple Rational Bases Support DOMA And Its Decision To Retain The Traditional Definition Of Marriage For Federal-Law Purposes ... 28 A. DOMA Rationally Preserves Each Sovereign's Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition ... 30 *iv B. DOMA Ensures National Uniformity in Eli- 2013 WL 267026 (U.S.) Page 2 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (456 of 518) gibility for Federal Benefits and Programs Based on Marital Status ... 33 C. DOMA Preserves Past Legislative Judgments, Conserves Financial Resources, and Avoids Uncer- tain and Unpredictable Effects on the Federal Fisc ... 37 D. Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States ... 41 E. The Federal Government Could Rationally Re- tain the Traditional Definition for the Same Reas- ons States Can Rationally Retain that Definition ... 43 1. Providing a Stable Structure to Raise Uninten- ded and Unplanned Offspring ... 44 2. Encouraging the Rearing of Children by Their Biological Parents ... 47 3. Promoting Childrearing by Both a Mother and a Father ... 48 III. The Longstanding List Of Suspect And Quasi- Suspect Classes Should Not Be Expanded To In- clude Sexual Orientation ... 49 *v A. Gays and Lesbians Are Far from Politically Powerless ... 51 B. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Government's Interests in Recognizing Marriage ... 54 C. Sexual Orientation Is Not an Immutable Char- acteristic ... 54 D. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy Are Different ... 56 CONCLUSION ... 59 STATUTORY APPENDIX U.S. Const. amend. V ... 1a Defense of Marriage Act, 3, 1 U.S.C. 7 ... 2a Defense of Marriage Act, 2, 28 U.S.C. 1738C ... 3a *vi TABLE OF AUTHORITIES Cases Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) ... 5, 38 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ... 5 Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) ... 29 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ... 2 Baker v. Nelson, 409 U.S. 810 (1972) ... 16, 25 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ... 13, 51, 55 Bowen v. Owens, 476 U.S. 340 (1986) ... 41 Bowers v. Hardwick, 478 U.S. 186 (1986) ... 27 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ... 13, 46, 54 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ... passim City of Dallas v. Stanglin, 490 U.S. 19 (1989) ... 29 Clark v. Jeter, 486 U.S. 456 (1988) ... 25 Conaway v. Deane, 932 A.2d 571 (Md. 2007) ... 46 *vii Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ... 13 Dandridge v. Williams, 397 U.S. 471 (1970) ... 41 Davis v. Prison Health Servs., 679 F.3d 433 (6th 2013 WL 267026 (U.S.) Page 3 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (457 of 518) Cir. 2012) ... 13 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ... 5 FCC v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) ... 28, 29, 30, 49 Frontiero v. Richardson, 411 U.S. 677 (1973) ... 56 Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) ... 14, 24 Helvering v. Davis, 301 U.S. 619 (1937) ... 36 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ... 2, 46 High Tech Gays v. Def. Indus. Sec. Clearance Of- fice, 895 F.2d 563 (9th Cir. 1990) ... 13, 51, 55 Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) ... 56 Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005) ... 12 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ... 12 Jimenez v. Weinberger, 417 U.S. 628 (1974) ... 24 *viii Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ... 13 Johnson v. Robison, 415 U.S. 361 (1974) ... 49 King v. Smith, 392 U.S. 309 (1968) ... 45 Lawrence v. Texas, 539 U.S. 558 (2003) ... 27, 28, 57 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ... 29 Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ... 13 Lyng v. Castillo, 477 U.S. 635 (1986) ... 50 Mandel v. Bradley, 432 U.S. 173 (1977) ... 26 Marsh v. Chambers, 463 U.S. 783 (1983) ... 42 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ... 50 Massachusetts v. U.S. Dep't of HHS, 682 F.3d 1 (1st Cir. 2012) ... passim Mathews v. Diaz, 426 U.S. 67 (1976) ... 29 Murphy v. Ramsey, 114 U.S. 15 (1885) ... 10 Nat'l Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ... 43 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ... 42 *ix Nguyen v. INS, 533 U.S. 53 (2001) ... 47 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ... 13 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ... 13 Regan v. Time, Inc., 468 U.S. 641 (1984) ... 23 Romer v. Evans, 517 U.S. 620 (1996) ... 26, 27 Rostker v. Goldberg, 453 U.S. 57 (1981) ... 23 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ... 50 Santosky v. Kramer, 455 U.S. 745 (1982) ... 47 Schweiker v. Wilson, 450 U.S. 221 (1981) ... 29 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ... 12 Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) ... 3, 12 Smelt v. Cnty. of Orange, 549 U.S. 959 (2006) ... 3 Smith v. Org. of Foster Families for Equal. & Re- 2013 WL 267026 (U.S.) Page 4 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (458 of 518) form, 431 U.S. 816 (1977) ... 47 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ... 13 U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973) ... 23, 24 *x U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ... 37 United States v. Carotene Prods. Co., 304 U.S. 144 (1938) ... 58 United States v. Five Gambling Devices, 346 U.S. 441 (1953) ... 23 United States v. Turley, 352 U.S. 407 (1957) ... 36 United States v. Virginia, 518 U.S. 515 (1996) ... 48 Vance v. Bradley, 440 U.S. 93 (1979) ... 28 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) ... 30 Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305 (1985) ... 22 Washington v. Glucksberg, 521 U.S. 702 (1997) ... 59 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ... 12 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ... 13, 55 Yarborough v. Yarborough, 290 U.S. 202 (1933) ... 44 Zablocki v. Redhail, 434 U.S. 374 (1978) ... 44 Constitutional Provision U.S. Const. art. II, 3 ... 12 *xi Statutes & Regulations 5 U.S.C. 8101 ... 5 5 U.S.C. 8341(a) ... 5 8 U.S.C. 1186a(b)(1) ... 5 22 U.S.C. 4081 ... 3 26 U.S.C. 2(b)(2) ... 5 26 U.S.C. 6013(a) ... 5 26 U.S.C. 7703(b) ... 5 38 U.S.C. 101(31) ... 5 42 U.S.C. 416 ... 5 42 U.S.C. 1382c(d)(2) ... 4 Don't Ask Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. 654 note ... 52 Revenue Act of 1921, 223(b), 42 Stat. 227 ... 5 Presidential Mem., Extension of Benefits to Same- Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32,247 (June 2, 2010) ... 4 U.S. Dep't of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995) ... 5 Other Authorities 142 Cong. Rec. 10468 (1996) (Sen. Nickles) ... 34 142 Cong. Rec. 16969 (1996) (Rep. Canady) ... 6 142 Cong. Rec. 17079 (1996) (Rep. Bryant) ... 7 142 Cong. Rec. 17089 (1996) (Rep. Hyde) ... 7 142 Cong. Rec. 17094 (1996) ... 2 *xii 142 Cong. Rec. 22262 (1996) (Sen. Lieber- man) ... 11 142 Cong. Rec. 22438 (1996) (Sen. Lott) ... 7 142 Cong. Rec. 22440 (1996) (Sen. Nickles) ... 7 2013 WL 267026 (U.S.) Page 5 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (459 of 518) 142 Cong. Rec. 22443 (1996) (Sen. Gramm) ... 9, 39 142 Cong. Rec. 22446 (1996) (Sen. Byrd) ... 6, 11 142 Cong. Rec. 22448 (1996) (Sen. Byrd) ... 9, 39 142 Cong. Rec. 22452 (1996) (Sen. Mikulski) ... 7 142 Cong. Rec. 22453 (1996) (Sen. Hatfield) ... 8 142 Cong. Rec. 22453 (1996) (Sen. Murkowski) ... 8 142 Cong. Rec. 22454 (1996) (Sen. Burns) ... 10 142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) ... 8, 34 142 Cong. Rec. 22463 (1996) (Sen. Bradley) ... 10 142 Cong. Rec. 22467 (1996) ... 2 Am. Psychological Ass'n, Answers to Your Ques- tions: For a Better Understanding of Sexual Orient- ation & Homosexuality, http:// www.apa.org/topics/sexuality/orientation.aspx/ ... 56 Bara Vaida and Neil Munro, Interest Groups - Re- versal of Fortunes, Nat'l J., Nov. 11, 2006 ... 53 *xiii Charles Mahtesian, A Record Number of Gay Candidates, POLITICO.com (Oct. 2, 2012), ht- tp://www.politico.com/blogs/charlie-mahtesian/201 2/10/a-record-number-of-gay-candidates-137289.ht ml ... 52 Cong. Budget Office, The Potential Budgetary Im- pact of Recognizing Same-Sex Marriages (2004), http:// www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55 xx/doc5559/06-21-samesexmarriage.pdf ... 40 Council on Families in America, Marriage in America: A Report to the Nation (1995) ... 10 Dan Eggen, The Influence Industry: Same-Sex Mar- riage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http:// www.washingtonpost.com/politics/same-sex-marria ge-de- bate- many- of-oba- mas- top-fun- draisers- are-gay/2012/05/09/gIQASJYSDU_story.html ... 53 Frank Newport, For First Time, Majority of Amer- icans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), ht- tp://www.gallup.com/poll/147662/first-time-majorit y-americans-favor-legal-gay-marriage.aspx ... 51 George Chauncey, Why Marriage?: The History Shaping Today's Debate Over Gay Equality (2004) ... 57 H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ... passim *xiv Human Rights Campaign Lauds 2008 Election Results, HRC.org (Nov. 4, 2008), ht- tp://www.hrc.org/press-releases/entry/human-rights -campaign-lauds-2008-election-results ... 53 Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief (2002), ht- tp://www.childtrends.org/files/marriagerb602.pdf ... 48 Letter from Andrew Fois, Asst. Att'y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ... 11 Letter from Andrew Fois, Asst. Att'y Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ... 11 Letter from Andrew Fois, Asst. Att'y Gen., to Sen. 2013 WL 267026 (U.S.) Page 6 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (460 of 518) Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ... 11 Letter from Att'y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http:// www.justice.gov/opa/pr/2011/February/11-ag-223.h tml ... 12, 13 *xv Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Women's Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111 (2001) ... 56 Michael Falcone, Maine Vote Repeals Gay Mar- riage Law, POLITICO.com, (Nov. 4, 2009), ht- tp://www.politico.com/news/stories/1109/29119.ht ml ... 52 Michelle Garcia & Andrew Harmon, Obama's Power Gays, Advocate.com (Oct. 24, 2011), ht- tp://www.advocate.com/news/daily-news/2011/10/2 4/obamas-power-gays ... 53 Owen Keehnen, The Case for Gay Marriage: Talk- ing with Why Marriage? Author George Chauncey, GLBTQ.com (2004), http:// www.glbtq.com/sfeatures/interviewgchauncey.html ... 57 The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ... 7, 11 William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America's Children, 15 Future of Children 97 (2005), http:// futureofchil- dren.org/futureofchildren/publications/docs/15_02_ 06.pdf ... 42 *1 OPINIONS BELOW The opinion of the Court of Appeals for the Second Circuit is reported at 699 F.3d 169, and reproduced in the Appendix to the Supplemental Brief for the United States (Supp. App.) at 1a. The opinion of the District Court on the merits is reported at 833 F. Supp. 2d 394, and reproduced in the Appendix to the Petition for a Writ of Certiorari Before Judg- ment (App.) at 1a. The district court's opinion on intervention is reported at 797 F. Supp. 2d 320, and reproduced in the Joint Appendix (JA) at JA 218. JURISDICTION The district court's judgment was entered on June 7, 2012. App. 23a. The Bipartisan Legal Advisory Group of the United States House of Representat- ives (the House) filed a notice of appeal on June 8, 2012. App. 27a-29a. The United States filed its own notice of appeal on June 14, 2012. App. 25a-26a. On September 11, 2011, while the case was pending in the court of appeals, the United States filed a petition for certiorari before judg- ment, invoking this Court's jurisdiction under 28 U.S.C. 1254(1) and 2101(e). The court of ap- peals rendered its judgment on October 18, 2012. Supp. App. 1a. On December 7, 2012, this Court granted the United States' petition. CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED The provisions of the Fifth Amendment to the Con- stitution and Sections 2 and 3 of the Defense of Marriage Act are reproduced in the Appendix to this brief at 1a. *2 STATEMENT OF THE CASE A. The Defense of Marriage Act For more than two centuries after our Nation's Founding, every state and the federal government defined marriage as the legal union of a woman and a man. Indeed, [u]ntil a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). By 1996, however, a Hawaii Supreme Court de- 2013 WL 267026 (U.S.) Page 7 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (461 of 518) cision had called that uniform approach into ques- tion. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (indicating that same-sex marriage licenses may have been required by Hawaii's constitution). The Baehr decision raised the novel question of whether one state's redefinition of marriage should automat- ically extend to other states via full faith and credit principles or to the federal government when it came to federal programs linked to marriage. Congress addressed this question by passing the Defense of Marriage Act of 1996 (DOMA), which was enacted with strong majorities in both Houses [of Congress] and signed into law by Pres- ident Clinton. Massachusetts v. U.S. Dep't of HHS, 682 F.3d 1, 6 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 & 12-15. DOMA passed in the House of Representatives by a vote of 342-67, see 142 Cong. Rec. 17094-95 (1996), and in the Senate by a vote of 85-14, see id. at 22467. In the Senate supporters included then-Senator Biden; then- Minority Leader *3 Daschle; current Majority Leader Reid; and current Judiciary Committee Chairman Leahy. In the House, Rep. Hoyer, the Current Minority Whip, supported DOMA. DOMA reflected Congress' determination that each sovereign should be able to determine for itself how to define marriage for purposes of its own law. DOMA does not override or invalidate any sover- eign's decision to modify the definition of marriage, but it does preserve that prerogative for each sover- eign. Section 2 of DOMA allows each state to de- cide for itself whether to retain the traditional definition without having another jurisdiction's de- cision imposed upon it via full faith and credit prin- ciples. And Section 3 preserves the federal govern- ment's ability to use the traditional definition of marriage for purposes of federal law and programs. It does so not by singling out any category of rela- tionships for specific exclusion, but rather by clari- fying what marriage means for purposes of federal law: It clarifies that, for purposes of federal law, marriage means the legal union of one man and one woman, and spouse means a person of the opposite sex who is a husband or wife. 1 U.S.C. 7 . DOMA does not preclude Congress or anyone else in the federal system from extending benefits to those who are not included within [its] definition. Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006). Thus, some federal statutes provide benefits for families, see, e.g., 22 U.S.C. 4081 (extending certain financial benefits to Foreign Service mem- bers and their families), and the President has in- terpreted that *4 term, which is not defined by DOMA, to include same-sex couples. See Presiden- tial Mem., Extension of Benefits to Same-Sex Do- mestic Partners of Federal Employees, 75 Fed. Reg. 32,247 (June 2, 2010) (directing the Office of Personnel Management to clarify that, for pur- poses of employee assistance programs, same-sex domestic partners and their children qualify as family members' ). DOMA's definitions apply for federal-law purposes only: DOMA does not bar or invalidate any state- law marriage, but leaves states free to decide whether they will recognize same-sex marriages. DOMA simply asserts the federal government's right as a separate sovereign to provide its own definition for purposes of its own federal programs and funding. Historically, the federal government often has found it convenient to accept the marital determina- tions made by the several states (which for the most part have varied only in the particulars) for pur- poses of federal law - just as the states typically re- cognize marriages licensed by other states for pur- poses of their own law. But Congress also has a long history, when it sees fit, of supplying its own definitions of marriage for various federal pur- poses. These longstanding federal definitions some- times provide marital benefits to couples who a state may not recognize as married, [FN1] and sometimes decline to extend federal regulation or benefits to couples *5 despite a state-issued mar- riage certificate. [FN2] 2013 WL 267026 (U.S.) Page 8 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (462 of 518) FN1. See, e.g., 42 U.S.C. 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition). FN2. See, e.g., 5 U.S.C. 8101(6), (11), 8341(a)(1)(A)-(a)(2)(A) (federal employ- ee-benefits statutes defining widow and widower restrictively); 8 U.S.C. 1186a(b)(1) (denying recognition to some state-law marriages in immigration law context); 26 U.S.C. 2(b)(2) (tax law pro- vision deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); 26 U.S.C. 7703(b) (excluding some couples living apart from federal marriage definition for tax purposes); 42 U.S.C. 416 (defining spouse, wife, husband, widow, widower, and divorce, for social-se- curity purposes). Similarly, even before DOMA was enacted, feder- al-law references to marriage employed the tradi- tional definition, as Congress, the Executive Branch, and the courts have recognized. See, e.g., Revenue Act of 1921, 223(b), 42 Stat. 227 (permitting a husband and wife living together to file a joint tax return; cf. 26 U.S.C. 6013(a) (A husband and wife may make a single return jointly of income taxes)); 38 U.S.C. 101(31) (for pur- poses of veterans' benefits, spouse means a per- son of the opposite sex); U.S. Dep't of Labor, Fi- nal Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of spouse that would have in- cluded same-sex relationships); Adams v. Hower- ton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (Congress, as a matter of federal law, did not in- tend that a person of one sex could be a spouse to a person of the same sex for immigration law pur- poses), aff'd, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia's 1901 marriage statute, intended that *6 marriage is limited to opposite-sex couples). Congress explained that, in defining the terms marriage and spouse, Section 3 of DOMA merely restates the current understanding of what those terms mean for purposes of federal law. H.R. Rep. No. 104-664, at 30 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (House Rep.); see also id. at 10 ([I]t can be stated with certainty that none of the federal statutes or regulations that use the words marriage or spouse were thought by even a single Member of Congress to refer to same-sex couples.); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (Section 3 changes nothing; it simply re- affirms existing law.); id. at 22446 (Sen. Byrd) ([A]ll this bill does is reaffirm for purposes of Federal law what is already understood by every- one.). Congress emphasized that [t]he most important as- pect of Section 3 is that it applies to federal law only and does not have any effect whatsoever on the manner in which any State might choose to define these words. House Rep. 30 (parenthetical omitted). Section 3 defines these two words only insofar as they are used in federal law. Id. Con- gress thus reaffirmed the federal government's abil- ity to make its own decision regarding whether to recognize same-sex relationships as marriages, without having its hand forced by a minority of the states or forcing any state to follow the federal definition for purposes of its own state law. In addition, Congress wanted to preserve the right of each state - like the federal government - to define marriage within its own sphere. DOMA Sec- tion 2 prevents a decision by one state to re-define marriage from trumping the decisions of other states *7 via full faith and credit principles. Section 3 similarly prevents such a state re-definition from being automatically picked up for federal-law pur- poses. See 142 Cong. Rec. 17079 (1996) (Rep. Bry- ant) (Certainly we should not allow one State, 2013 WL 267026 (U.S.) Page 9 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (463 of 518) whether it be Hawaii or any other State, to, in ef- fect, establish what the Federal law will be in re- gards to what a marriage is.); id. at 17089 (Rep. Hyde) ([A]s to defining marriage in the Federal code, who else should define it except this Con- gress, the Federal legislature.); The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong, at 2 (1996) (Senate Hrg.) (Sen. Hatch) (DOMA ensures that each State can define for itself the concept of mar- riage and not be bound by decisions made by other States. [DOMA] also makes clear that no Federal law should be read to treat a same-sex union as a marriage. ); id. at 41 (statement of Prof. Lynn Wardle) (Section 3 protects Congress' authority to control federal laws, programs and agencies. It pre- vents the imposition of same-sex marriage upon federal law without the approval of Congress. That, too, protects our federalism.); 142 Cong. Rec. 22438 (1996) (Sen. Lott) (DOMA will ensure that each State can reach its own decision about this ex- tremely controversial matter: The legal status of same-sex unions. [DOMA], likewise, ensures that for the purposes of Federal programs, marriages will be defined by Federal law.); id. at 22440 (Sen. Nickles) (Without DOMA, if Hawaii, or any other State, gives new meaning to the words marriage and spouse, reverberations may be felt throughout the Federal Code.); id. at 22452 (Sen. Mikulski) ([This bill] puts in the Federal law books *8 what has always been the definition of a marriage and allows each State to determine for itself what is considered a marriage under that State's laws.); id. at 22453 (Sen. Hatfield) (The bill would restrict the effect of any state law that allows same-sex marriage to that state only.); id. (Sen. Murkowski) (By defining the term marriage, Congress is pro- tecting the sovereignty of each State and avoiding the ramifications of the absence of a definition of marriage in Federal law.). Members of Congress also stressed that conflicting state definitions of marriage should not be permit- ted to create geographical disparities in the eligibil- ity for federal benefits. As Senator Ashcroft stated, having a uniform federal definition of marriage is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differ- ently [and] people in different States would have different eligibility to receive Federal benefits, which would be inappropriate. 142 Cong. Rec. 22459 (1996). Federal benefits, he observed, should be uniform for people no matter where they come from in this country. People in one State should not have a higher claim on Federal benefits than people in another State. Id. It would be irrational and inconsistent, he said, if citizens of one State [were given] higher benefits or different benefits than citizens of another State. Id. [I]t is entirely appropriate for us, as a Congress, to say that we want a Federal benefits structure that fol- lows a uniform definition of marriage. Id.; see also id. at 22453 (Sen. Murkowski) (DOMA estab- lishes uniformity in federal benefits, rights and privileges *9 for married persons.); id. at 22448 (Sen. Byrd) (Without a Federal definition every department and every agency of the Federal Gov- ernment that administers public benefit programs would be left in the lurch.). Congress additionally noted that DOMA helped to preserve the public fisc and avoid the unpredictable effects of changing traditional federal definitions that governed eligibility for federal benefits and taxes. Government currently provides an array of material and other benefits to married couples, and those benefits impose certain fiscal obligations on the federal government. House Rep. 18. Congress believed that DOMA would preserve scarce gov- ernment resources, surely a legitimate government purpose. Id. As Senator Gramm observed, without DOMA, state recognition of same-sex marriage will create a whole group of new beneficiaries - no one knows what the number would be - tens of thousands, hun- dreds of thousands, potentially more - who will be beneficiaries of newly created survivor benefits un- der Social Security, Federal retirement plans, and military retirement plans. [I]t will impose a 2013 WL 267026 (U.S.) Page 10 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (464 of 518) whole new set of benefits and expenses which have not been planned or budgeted for under current law. 142 Cong. Rec. 22443 (1996). If the federal gov- ernment were forced to recognize same-sex mar- riages, Sen. Byrd noted, it is [not] inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars, if not billions of Federal taxpayer dollars. Id. at 22448; *10 see also id. at 22454 (Sen. Burns) (Given the budget difficulties we are currently fa- cing, it would be an understatement to say that this [federal recognition of same-sex marriages] could have an enormous financial impact on our coun- try.). In retaining the traditional definition for federal- law purposes, Congress also emphasized [t]he enormous importance of [traditional] marriage for civilized society. House Rep. 13 (quoting Coun- cil on Families in America, Marriage in America: A Report to the Nation 10 (1995)). The House Report quoted approvingly from this Court's decision in Murphy v. Ramsey, which referred to the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization. House Rep. 12 (quoting 114 U.S. 15, 45 (1885)) (emphasis in House Rep.). Congress recognized that the insti- tution of marriage has traditionally been defined in American law as the union of one man and one wo- man, and was cognizant of the need for caution in changing such an important institution. See House Rep. 3 ([T]he uniform and unbroken rule has been that only opposite-sex couples can marry.); 142 Cong. Rec. 22463 (1996) (Sen. Bradley) ([W]hen we contemplate giving state sanction to same-sex marriages, we need to proceed cautiously.). Congress further explained that the institution of marriage is a response to the unique social concerns surrounding the inherently procreative nature of heterosexual relationships - specifically, that society recognizes the institution of marriage and grants married persons preferred legal status *11 because it has a deep and abiding interest in en- couraging responsible procreation and childrear- ing. House Rep. 12, 13. Congress recognized the basic biological fact that only a man and a woman can beget a child together without advance plan- ning, which means that opposite-sex couples have a unique tendency to produce unplanned and uninten- ded offspring. Congress sought to encourage the raising of such children by both their biological parents in a stable family structure. See 142 Cong. Rec. 22446 (Sen. Byrd); id. at 22262 (Sen. Lieber- man) (DOMA affirms another basic American mainstream value, marriage as an institution between a man and a woman, the best institution to raise children in our society.). While Congress was considering DOMA, it reques- ted the opinion of the Department of Justice on the bill's constitutionality, and the Department three times reassured Congress that DOMA was constitu- tional. See Letters from Andrew Fois, Asst. Att'y Gen., to Rep. Canady (May 29, 1996), reprinted in House Rep. 34; to Rep. Hyde (May 14, 1996), re- printed in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in Senate Hrg. 2. Congress also received and considered other expert advice and concluded that DOMA was plainly constitu- tional. House Rep. 33; see also Senate Hrg. 1, 2 (Sen. Hatch) (DOMA is a constitutional piece of legislation and a legitimate exercise of Congress' power); id. at 23-41 (testimony of Professor Wardle); id. at 44 n.1 (statement of Professor Cass Sunstein) (opining that DOMA Section 3 would be upheld as constitutional); id. at 56-59 (letter from Professor Michael McConnell). *12 B. The Justice Department Stops Defending DOMA and Starts Attacking It Following DOMA's enactment, the Department of Justice discharged its constitutional duty to take Care that the Laws be faithfully executed, U.S. Const. art. II, 3, and successfully defended Sec- tion 3 of DOMA against several constitutional chal- lenges, prevailing in every case to reach final judg- ment. [FN3] The Department continued to defend 2013 WL 267026 (U.S.) Page 11 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (465 of 518) DOMA during the first two years of the current Ad- ministration. FN3. See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff'd in part and vacated in part for lack of stand- ing, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004). In February 2011, however, the Administration ab- ruptly reversed course and abdicated its duty to de- fend DOMA's constitutionality. See Letter from Att'y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (Holder Letter), http:// www.justice.gov/opa/pr/2011/February/11-ag-223.h tml. Attorney General Holder announced that he and President Obama were now of the view that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease de- fense of Section 3. Id. The Attorney General acknowledged that, in light of the respect appropriately due to a coequal branch of government, the Department has a longstanding practice of defending the constitution- ality of duly-enacted statutes if reasonable argu- ments can be *13 made in their defense. Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every federal court of appeals to have considered the issue by that point in time (eleven of the thirteen circuits) had applied ra- tional basis review to sexual orientation classifica- tions and that a reasonable argument for Section 3 's constitutionality may be proffered under [the ra- tional basis] standard. Id. [FN4] FN4. See, e.g., Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-574 (9th Cir. 1990); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989). Although the Holder Letter had said only that the Department would cease defense of DOMA Sec- tion 3, the Department did not merely bow out of DOMA litigation. Instead, it affirmatively assailed DOMA in court - arguing that Section 3 violates equal protection and urging courts to render judg- ment in favor of plaintiffs challenging the law even in Circuits in which rational basis was binding cir- cuit law. The Department even went so far as to ac- cuse the Congress that enacted DOMA - many of whose Members still serve - of being motivated by animus. Br. for United States 25, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012), ECF 120. *14 In response to the Department's remarkable about face on DOMA, Massachusetts, 682 F.3d at 7, the House intervened as a party-defendant in more than a dozen cases (fifteen to date), around the country, in which one or more plaintiffs chal- lenged the constitutionality of DOMA Section 3; the House did so to ensure that a duly-enacted fed- eral statute would have an adequate constitutional defense. No court denied intervention. C. Ms. Windsor's Challenge to DOMA Respondent Edith Schlain Windsor and another wo- man, Thea Clara Spyer, obtained a certificate of marriage from the province of Ontario, Canada in 2007. At that time, their home state of New York 2013 WL 267026 (U.S.) Page 12 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (466 of 518) did not issue marriage licenses to same-sex couples. Ms. Spyer died in 2009, naming Ms. Windsor the executor and sole beneficiary of her estate. Nine months after Ms. Spyer's passing, the New York Court of Appeals expressly reserved the question of whether New York law recognized foreign, same- sex marriage certificates. See Godfrey v. Spano, 920 N.E.2d 328, 337 (N.Y. 2009). New York did not itself begin issuing marriage licenses to same- sex couples until 2011. After paying more than $363,000 in federal estate taxes, Ms. Windsor, as executor, sought a refund on the theory that the estate was entitled to the marital deduction, even though both Ms. Windsor and Ms. Spyer continued to file individual income tax re- turns after obtaining an Ontario marriage certificate in 2007. Recognizing that federal law offers this deduction only when the beneficiary of the estate is a spouse within the meaning of federal tax law and *15 DOMA, Ms. Windsor claimed that the fail- ure to extend this favorable treatment to her viol- ated her equal protection rights. The IRS denied the refund, and Ms. Windsor filed this suit in her capa- city as executor of the estate. Ms. Windsor's consti- tutional challenge is premised on the notion that New York would have recognized the 2007 Cana- dian marriage certificate, even though New York did not issue marriage certificates to same-sex couples until after Ms. Spyer's death. After the Justice Department abandoned DOMA's defense in early 2011, the district court sua sponte invited Congress to intervene in the litigation, and the House did so. The district court followed the First Circuit's lead and invalidated DOMA under a variant of rational basis it labeled intensified scru- tiny. 682 F.3d at 10. On appeal, the Second Circuit first found that the Department had appellate standing and then ad- dressed Ms. Windsor's standing. It recognized that, [a]t the time of Spyer's death in 2009, New York did not yet license same-sex marriage itself and therefore decisive for standing in this case is whether in 2009 New York recognized same-sex marriages entered into in other jurisdictions. Supp. App. 5a. The Second Circuit declined to certify this sensitive question of state law, reasoning that the New York Court of Appeals had signaled its disin- clination to decide this very question in Godfrey. Supp. App. 6a. Instead, the panel predict[ed] that Windsor's marriage would have been recog- nized under New York law at the time of Spyer's death, based on three New York lower court rul- ings, two of which pre-dated Godfrey. App. 6a-7a. *16 On the merits, the panel majority recognized that this Court's decision in Baker v. Nelson, 409 U.S. 810 (1972), held that the use of the traditional definition of marriage for a state's own regulation of marriage status did not violate equal protection. Supp. App. 3a. Yet the panel majority concluded that Baker does not control equal protection re- view of DOMA because DOMA is a federal law and there had been doctrinal changes in equal protection law since 1971. Supp. App. 8a, 10a. In its equal protection analysis, the panel majority explained that a party urging the absence of any rational basis takes up a heavy load and [t]hat would seem to be true in this case - the law was passed by overwhelming bipartisan majorities in both houses of Congress and the definition of marriage it affirms has been long-supported and en- couraged. Supp. App. 12a-13a. Indeed, the panel majority did not dispute Judge Straub's conclusion that DOMA survives rational basis review. See Supp. App. 14a. It also declined to apply rational basis plus review, because this Court has not ex- pressly sanctioned such modulation in the level of rational basis review. Supp. App. 13a. The panel majority ultimately determined - in con- flict with eleven other circuits - that heightened scrutiny applies to classifications based on sexual orientation. Supp. App. 15a. The panel majority ac- knowledged that homosexuals clearly have at- tained political successes over the years, but deemed that they cannot adequately protect them- selves from the discriminatory wishes of the major- 2013 WL 267026 (U.S.) Page 13 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (467 of 518) itarian public. Supp. App. 21a-23a. Finally, the panel majority concluded that *17Sec- tion 3 of DOMA could not survive heightened scru- tiny. The Court recognized Congress' concern with ensuring uniform eligibility for federal marital be- nefits, but found it suspicious that Congress would attempt to define the word marriage when it had traditionally deferred to the states. Supp. App. 24a-25a. It also recognized the budgetary con- cerns motivating DOMA, but held them insufficient to satisfy intermediate scrutiny. Supp. App. 26a-28a. The panel majority agree [d] that promo- tion of procreation can be an important government objective, but held that DOMA does not further that objective because it affected only federal bene- fits. Supp. App. 30a. Thus, although it acknow- ledged that same-sex marriage is unknown to his- tory and tradition, the panel majority nonetheless invalidated DOMA. Supp. App. 29a-31a. Judge Straub dissented on the merits, noting that DOMA reflects the understanding of marriage throughout our nation's history, and that, [i]f this understanding is to be changed, it is for the American people to do so. Supp. App. 31a-32a. Judge Straub found that this Court's decision in Baker resolved the essentially identical challenge we have here, because although Baker involved a state law, the equal protection component of the Fifth Amendment is identical to and coextensive with the Fourteenth Amendment guarantee. Supp. App. 32a, 45a. Even apart from Baker, Judge Straub concluded that routine respect for extant precedent requires the application of rational-basis review to sexual- orientation classifications. Supp. App. 81a. He ob- served that this Court has warned the lower *18 courts to be wary of creating new suspect or quasi-suspect classifications, that it has not itself recognized any such classifications in decades, and that this Court applied rational-basis review in Romer despite having the opportunity to apply heightened review. Supp. App. 33a, 78a, 81a. Applying rational basis review, Judge Straub found that DOMA centers on legitimate state interests that go beyond mere moral disapproval of an ex- cluded group. Supp. App. 33a. He noted that DOMA promotes uniformity in federal marital be- nefits and does nothing to strip the status that states confer on couples they marry. Supp. App. 63a-64a. He concluded that it is rational for Con- gress to limit the national impact of state-level policy development and to take an approach that attempts to create uniformity across the states in matters governed by federal law. Supp. App. 67a-68a, 69a. Judge Straub also noted that this Court has contin- ued to view the biological link of parents to chil- dren as deserving of special recognition and protec- tion. Supp. App. 71a. He therefore concluded that DOMA furthers the legitimate government interest in encouraging heterosexual relationships, with their unique tendency to produce unintended off- spring, to be channeled into an institution designed to facilitate the raising of such offspring. Supp. App. 55a-62a. Judge Straub therefore concluded that [w]hether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is an issue for the American people and their elected *19 rep- resentatives to settle through the democratic pro- cess. Supp. App. 83a. He noted the robust politic- al debate on this topic and expressed regret that striking down DOMA poisons the political well by interven[ing] in this robust debate only to cut it short. Id. SUMMARY OF THE ARGUMENT Although the passions that surround the issue of same-sex marriage undoubtedly run high, the issue before this Court is quite narrow. Assuming that states remain free either to recognize same-sex mar- riages or retain the traditional definition, the ques- tion here is whether the federal government retains the same latitude to choose a definition for federal- 2013 WL 267026 (U.S.) Page 14 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (468 of 518) law purposes, or whether instead it must borrow state-law definitions as its own, recognizing same- sex marriages of U.S. citizens residing in Mas- sachusetts (because Massachusetts does) but not same-sex relationships of U.S. citizens residing in Virginia (because Virginia does not). Bedrock prin- ciples of federalism make clear that the federal gov- ernment has the same latitude as the states to adopt its own definition of marriage for federal-law pur- poses and has a unique interest in treating citizens across the nation the same. To be sure, the federal government also has the op- tion of borrowing state-law definitions, as it did during the long period when the states uniformly employed the traditional definition. But in 1996 when it appeared that states soon would begin ex- perimenting with changing the traditional defini- tion, the federal government was under no obliga- tion to follow suit. Congress could, and did, ration- ally decide to retain the traditional definition *20 as the uniform rule for federal-law purposes. Congress could, and someday may, adopt a different ap- proach and either incorporate varying state ap- proaches or uniformly extend rights to same-sex couples even in states that retain the traditional definition. But under our system of government those decisions are wisely left to Congress and the democratic process. In considering DOMA's constitutionality, the Court should apply rational basis review as it previously has done when considering classifications on the basis of sexual orientation. And under that deferen- tial standard, there is little question that DOMA ra- tionally furthers multiple legitimate government in- terests. In 1996, Congress confronted an unpreced- ented dynamic with at least one state on the verge of experimenting with a fundamental change to the traditional definition of marriage. In DOMA, Con- gress acted to ensure that no one state's decision to adopt a new definition would dictate the result for other sovereigns either via full faith and credit prin- ciples or by federal law borrowing state definitions. In our federal system, there is certainly nothing ir- rational about allowing each sovereign - including the federal government - to make this important de- cision for itself. Indeed, the justly celebrated ability of states to act as laboratories of democracy ne- cessarily assumes the ability of each sovereign to run its own experiments. And it was certainly rational for the federal govern- ment to retain the traditional definition as the gov- erning definition for federal-law purposes. The fed- eral government has a unique interest in ensuring that federal benefits and tax burdens are *21 dis- tributed equally such that a same-sex couple in Vir- ginia is treated no differently for federal-law pur- poses from one in Massachusetts. And if the federal government can rationally favor a uniform rule, it was eminently rational to choose the traditional definition, which was the uniform state-law rule in 1996 and remains the majority approach today. That decision also was rational because it accur- ately reflected the intent of the prior Congresses that created the multitude of programs that tie bene- fits and burdens to the institution of marriage as tra- ditionally understood. It also avoided the uncertain and unpredictable fiscal impact of expanding the class of federal beneficiaries in unintended ways. And wholly apart from these unique federal in- terests that fully justify DOMA, Congress could ra- tionally decide to retain the traditional definition for the same basic reasons that states adopted the traditional definition in the first place and that many continue to retain it: There is a unique rela- tionship between marriage and procreation that stems from marriage's origins as a means to address the tendency of opposite-sex relationships to pro- duce unintended and unplanned offspring. There is nothing irrational about declining to extend mar- riage to same-sex relationships that, whatever their other similarities to opposite-sex relationships, simply do not share that same tendency. Congress likewise could rationally decide to foster relation- ships in which children are raised by both of their biological parents. Finally, the Second Circuit erred when it became 2013 WL 267026 (U.S.) Page 15 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (469 of 518) the first court of appeals to treat sexual orientation *22 as a quasi-suspect class. Creating new suspect classes takes issues away from the democratic pro- cess, and this Court has wisely refrained from re- cognizing new suspect classes over the last four decades. Homosexuality would be a particularly an- omalous place to eschew that reluctance, as gays and lesbians have substantial political power, which has grown exponentially with each election cycle. Nor do the other factors this Court has looked to support recognizing a new suspect class here. To the contrary, with an issue as divisive and fast- moving as same-sex marriage, the correct answer is to leave this issue to the democratic process. In that process, there is a premium on persuading oppon- ents, rather than labeling them as bigots motivated by animus. And the democratic process allows compromise and way-stations, whereas constitu- tionalizing an issue yields a one- size-fits-all-solution that tends to harden the views of those who lose out at the courthouse, rather than the ballot box. In the final analysis, the democratic process is at work on this issue; there is no sound reason to constitutionalize it. ARGUMENT As a statute duly enacted by Congress and signed by the President, DOMA is entitled to a strong pre- sumption of validity. Judging the constitutionality of an Act of Congress is properly considered the gravest and most delicate duty that this Court is called upon to perform. Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 319 (1985) (quotation marks omitted). The Congress is a co- equal branch of government whose Members take the same oath we do to uphold the Constitution of the United States. *23Rostker v. Goldberg, 453 U.S. 57, 64 (1981). Furthermore, [a] ruling of un- constitutionality frustrates the intent of the elected representatives of the people. Regan v. Time, Inc., 468 U.S. 641, 652 (1984). Therefore, [t]his Court does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliber- ate judgment by constitutional majorities of the two Houses of Congress that an Act is constitutional. United States v. Five Gambling Devices, 346 U.S. 441, 449 (1953) (plurality). And [t]he customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress spe- cifically considered the question of the Act's consti- tutionality. Rostker, 453 U.S. at 64; see supra at 11. The deference owed to the coordinate branches of government is at its zenith when it comes to ration- al basis review. It is one thing to conclude that a coordinate branch has crossed one of the sometimes murky lines that delineate the protections of the Bill of Rights, but it is quite another thing for this Court to declare that the two coordinate branches of the national government have acted not just im- prudently, but wholly without rational basis. For that reason, it is perhaps no surprise that this Court has on only one occasion (at most two) invalidated an Act of Congress while applying rational basis re- view. See U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973). [FN5] And even then, this Court inval- idated only *24 a single obscure amendment added in conference. Id. at 534 n.6. Striking down as irra- tional a statute like DOMA that was debated in both chambers, viewed as constitutional by the Justice Department, passed by large bipartisan majorities and then signed into law by the President would be wholly unprecedented. [FN6] FN5. Moreno is readily distinguishable. The classification there could not further the interests identified by the government because the vast majority of individuals excluded could easily rearrange their af- fairs to become eligible, while only the neediest people could not. See Moreno, 413 U.S. at 538. There are no analogous difficulties with DOMA. The only other even arguable example is Jimenez v. Wein- berger, 417 U.S. 628 (1974), in which the Court found a classification based on ille- gitimacy invalid under any standard of re- 2013 WL 267026 (U.S.) Page 16 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (470 of 518) view when the Court was in the process of recognizing illegitimacy as a quasi-suspect classification. FN6. Before it can consider DOMA's con- stitutionality, this Court must resolve a threshold issue of Article III standing. New York law did not recognize same-sex mar- riage until after Ms. Spyer's passing. Thus, Ms. Windsor only has standing to chal- lenge DOMA and the denial of a marital exemption from the estate tax if New York would have recognized her 2007 Ontario marriage certificate at a time when New York did not itself issue marriage certific- ates to same-sex couples. See Supp. App. 5a (recognizing that this question is decisive for standing in this case). That question is not free from doubt; the New York Court of Appeals expressly reserved that state-law question in its 2009 Godfrey decision, nine months after Ms. Spyer's passing. See Godfrey, 920 N.E.2d at 337. Both courts below predicted that New York would have recognized the Ontario marriage certificate, which presumably does not obviate the need for this Court to assure itself of its Article III jurisdiction. I. Rational Basis Review Applies To DOMA. Ms. Windsor and the Justice Department contend that Section 3 of DOMA classifies based on sexual orientation and that therefore heightened scrutiny applies. But this Court has never classified sexual *25 orientation as a suspect or quasi-suspect class, and indeed has gone out of its way to apply rational basis review. This Court should do the same here and apply rational basis review to DOMA. [FN7] FN7. By its terms, DOMA does not classi- fy based on a married couple's sexual ori- entation. Rather, DOMA classifies based on whether a marriage is (i) a legal union (ii) between two persons (iii) of the oppos- ite sex. A marriage between a man and a woman would fall within DOMA's defini- tion even if one or both spouses were ho- mosexual. Similarly, the marriage of two men would fall outside the definition even if both were heterosexual. There is no question, however, that DOMA has a dis- proportionate impact on individuals with a homosexual orientation. Under this Court's equal protection cases, there are only three levels of scrutiny. Strict scrutiny is re- served for laws that classify based on race, alien- age, or national origin. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Classifications based on sex or illegitimacy are quasi-suspect and receive intermediate scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988). All other classifications trigger only rational basis review. This Court has never considered sexual orientation to be a suspect or quasi-suspect classification and instead has repeatedly applied rational basis review to such classifications. This Court considered a classification similar to DOMA in Baker v. Nelson, 409 U.S. 810 (1972). The Baker Court rejected for want of a substantial federal question an equal protection challenge to Minnesota's statute defining marriage as a union between persons of the opposite sex. Baker, 409 U.S. at 810. Although the Court's summary disposi- tion *26 did not specify the level of scrutiny it ap- plied, subsequent decisions, discussed in the para- graphs immediately below, make clear that the Court applied only rational basis review to the Min- nesota statute's limitation of marriage to opposite- sex couples. Such a summary dismissal is, of course, a decision on the merits and, while it does not have the same force before this Court as a de- cision reached after plenary review, it carries pre- cedential effect. Summary affirmances and dis- missals for want of a substantial federal question without doubt reject the specific challenges presen- ted in the statement of jurisdiction. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); see also Massachusetts, 682 F.3d at 8 (Baker is 2013 WL 267026 (U.S.) Page 17 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (471 of 518) precedent binding on lower courts and thus fore- closes arguments that presume or rest on a consti- tutional right to same-sex marriage). This Court subsequently considered an equal pro- tection challenge to a sexual orientation classifica- tion on plenary review and applied rational basis re- view. See Romer v. Evans, 517 U.S. 620 (1996). Romer involved a voter-enacted referendum in Col- orado known as Amendment 2, which prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to pro- tect the named class of homosexual persons or gays and lesbians. Id. at 624. The Colorado Su- preme Court applied strict scrutiny to invalidate Amendment 2. Id. at 625. Despite the Colorado Supreme Court's application of strict scrutiny, this Court reviewed Amendment 2 under the rational basis test, which applies when a law neither burdens a fundamental right nor tar- gets a suspect class. Id. at 631. Under that test, *27 legislation is upheld so long as it bears a ra- tional relation to some legitimate end. Id. This Court held that Amendment 2 fails, indeed defies, even this conventional inquiry. Id. at 632 (emphasis added). See also id. at 635 (concluding that a law must bear a rational relationship to a le- gitimate governmental purpose, and Amendment 2 does not. (citation omitted)). Thus, even in the face of the protestations of the dissent that it was applying something other than rational basis re- view, see id. at 651 (Scalia, J., dissenting), the Court made clear that it was applying conventional rational basis review, not any form of heightened scrutiny, to the sexual orientation classification be- fore it in Romer. In Lawrence v. Texas, 539 U.S. 558 (2003), this Court once again declined to apply heightened scru- tiny. Lawrence struck down a Texas statute that criminalized intimate sexual conduct between two persons of the same sex, while not reaching oppos- ite-sex couples engaging in the same conduct. Rather than addressing that differential treatment under the Equal Protection Clause, the Court de- cided the case under the Due Process Clause and in- validated the Texas statute and overruled Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence Court emphasized the limited nature of that due process holding and specified that it was not hold- ing that the government must give formal recogni- tion to any relationship that homosexual persons seek to enter. 539 U.S. at 578. Justice O'Connor preferred to decide the case under the Equal Protection Clause and, consistent with Romer, applied rational basis review. She explained that her analysis of the Texas law does *28 not mean that other laws distinguishing between het- erosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as preserving the traditional institution of marriage. Id. at 585 (O'Connor, J., concurring in the judgment) (emphasis added). Although the court of appeals here applied heightened scrutiny to DOMA, the traditional factors this Court looks to in ascertaining the appro- priate level of equal protection scrutiny do not sup- port that conclusion. See Part III, infra. Rather, the proper result under this Court's precedents and the law of every other Circuit to consider the question is that rational basis review applies. As shown next, multiple rational bases support Congress' decision to employ the traditional definition of marriage for federal-law purposes. II. Multiple Rational Bases Support DOMA And Its Decision To Retain The Traditional Definition Of Marriage For Federal-Law Purposes. Rational basis review is a paradigm of judicial re- straint. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313-14 (1993). [T]he Constitution presumes that even improvident decisions will eventually be rectified by the democratic process. Cleburne, 473 U.S. at 440. Thus, judicial intervention is gener- ally unwarranted no matter how unwisely we may think a political branch has acted. Vance v. Brad- ley, 440 U.S. 93, 97 (1979). The judicial role is 2013 WL 267026 (U.S.) Page 18 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (472 of 518) modest precisely because rational basis is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. *29City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). The statute enjoys a strong presumption of validity, and the chal- lenger bears the burden to negative every con- ceivable basis which might support it without re- gard to whether the conceived reason for the chal- lenged distinction actually motivated the legis- lature. Beach, 508 U.S. at 314-15 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)); see also Armour v. City of Indi- anapolis, 132 S. Ct. 2073, 2080-81 (2012). As noted, deference is particularly strong when it comes to reviewing the work of the two coordinate political branches of the federal government. And deference is at its zenith when it comes to statutory definitions and other line-drawing exercises such as DOMA Section 3. This Court has recognized that in formulating definitions or establishing categories of beneficiaries, Congress had to draw the line some- where, Beach, 508 U.S. at 316, which inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line. Mathews v. Diaz, 426 U.S. 67, 83 (1976); see Schweiker v. Wilson, 450 U.S. 221, 238 (1981) (prescribing extra defer- ence for statutory distinctions that inevitably in- volve[] the kind of line-drawing that will leave some comparably needy person outside the favored circle (footnote omitted)). The Court has applied this deferential approach not just to economic legis- lation, but also to benefits legislation, e.g., Sch- weiker, and even to government determinations of who or what constitutes a family, Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974) (upholding on rational basis review zoning regulation defining unmarried couples *30 as families permitted to live together, but prohibiting cohabitation by larger groups). In such cases, Congress' decision where to draw the line is virtually unreviewable. Beach, 508 U.S. at 316. Applying this deferential review to DOMA, it is clear that Congress, when confronting the unpre- cedented phenomenon of states beginning to experi- ment with the traditional definition of marriage, had and maintains multiple rational bases to retain the traditional definition as the operative definition for purposes of federal law. A. DOMA Rationally Preserves Each Sovereign's Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition. When Congress enacted DOMA in 1996, it con- fronted a unique phenomenon. Up until that point, every state in the nation defined marriage in tradi- tional terms as a union between a man and a wo- man. There was little doubt that when Congress used terms like marriage, married, and spouse in federal statutes, it too had the tradition- al definition in mind. But Congress did not even need to consider whether it preferred a uniform fed- eral definition of marriage or instead preferred to defer to the states, because every state adopted the same, traditional approach. Only as that began to change did Congress consider DOMA. The Hawaii Supreme Court's decision in Baehr raised the prospect that some states would begin to experiment with the traditional definition and ex- pand it to include same-sex couples. At least in *31 Hawaii, the impetus for this change came not from the democratic process, but from the state courts' interpretation of the state constitution. And in our federalist system, the prospect that one state would alter the traditional definition raised the distinct prospect that one state could effectively change the law for other states via full faith and credit prin- ciples - and for the federal government to the extent federal law simply borrowed the state's definition. DOMA's two operative provisions responded to this unprecedented dynamic in a manner that preserved each sovereign's ability to define marriage for it- self. Section 2 preserved each state's ability to define marriage as it preferred by ensuring that any one state's definition would not trump another 2013 WL 267026 (U.S.) Page 19 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (473 of 518) state's judgment by operation of full faith and credit principles. In a similar fashion, Section 3 ensured that federal law would not simply borrow whatever definition or redefinition a state chose to adopt, but instead that the federal government would distinct- ively define marriage for federal-law purposes only and would retain the traditional definition. Congress' approach in DOMA was a balanced one that fully reflects and respects our federalist sys- tem. Congress did not attempt to override any state's decision to experiment with the definition of marriage or deem any particular redefinition of marriage irrational. But at the same time Congress recognized that states could rationally decide to ex- pand the traditional definition of marriage to in- clude same-sex couples, it also recognized that oth- er jurisdictions, including the federal government *32 for uniquely federal purposes, could rationally decide to retain the traditional definition. DOMA permitted states to perform their role as laboratories of democracy, while at the same time ensuring that no one state's experiment would be imposed on other states or on the federal govern- ment. DOMA thus reflects an interest in ensuring that, at a time of unprecedented reconsideration of the tra- ditional definition of marriage, each sovereign in our federal system may decide this important issue for itself. That surely is a rational indeed an import- ant and vital - basis for action in our system of dual federalism. And the federal government's decision to retain the traditional definition as its own also surely was a rational one. As shown in more detail below, at the time of DOMA's enactment every state retained the traditional definition and that remains the approach of the majority of the states. It plainly was rational for Congress to adopt the majority definition as its own, especially when that traditional definition was the underlying assumption of countless past federal legislative decisions, and when altering that defini- tion would have unpredictable fiscal effects and would undermine uniquely federal interests in the uniformity of federal benefits and burdens. Further, Congress could rationally retain the traditional definition for all the reasons a state could rationally retain the traditional definition. While the federal definition of marriage does not have the same direct impact on the institution as a state decision, it has some effect. Assuming that states continue to have the flexibility to retain the *33 traditional defini- tion, there is no reason why the federal government does not have the same latitude. B. DOMA Ensures National Uniformity in Eligibil- ity for Federal Benefits and Programs Based on Marital Status. As long as all the states retained the traditional definition of marriage, there was no need for the Congress to choose between having a uniform fed- eral definition for federal benefits and burdens and simply borrowing the state definition of marriage. But when Hawaii was on the verge of becoming the first state to experiment with altering the traditional definition, Congress had to choose between retain- ing a uniform federal rule or continuing simply to borrow state definitions in a manner that would cre- ate the possibility of disparities in federal benefits across jurisdictions. Congress chose the former, and that decision was eminently rational. In a nation where some states would recognize same-sex marriage and other states would not, Con- gress rationally could desire to maintain uniformity in the federal approach to this question, rather than adopting a patchwork of disparate state-law rules. DOMA Section 3 accomplishes exactly that, ensur- ing that similarly-situated couples will have the same federal benefits regardless of the state in which they happen to reside. The uniform federal rule reaffirmed by DOMA also avoids a confusing situation in which same-sex couples would lose (or gain) federal marital status simply by moving between states with different policies on recogni- tion of same-sex marriages. See, e.g., 142 Cong. Rec. 10468 (1996) (Sen. Nickles) (DOMA will eliminate legal uncertainty concerning Federal *34 benefits); id. at 22459 (Sen. Ashcroft) (finding it 2013 WL 267026 (U.S.) Page 20 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (474 of 518) very important to prevent people in different States [from having] different eligibility to receive Federal benefits). Likewise, a uniform federal rule also avoids the prospect that a federal employee - military or civilian - would resist moving from one jurisdiction to another for fear it would affect his or her federal benefits or tax status. The adoption of a uniform federal rule also serves the government's rational interest in easing admin- istrative burdens. While it may seem a simple mat- ter to determine which jurisdictions have recog- nized same-sex marriage, this case illustrates that the issue is far more complicated. Ms. Windsor's claim to a marital exemption from the estate tax does not turn on New York's very public adoption of laws permitting same-sex marriage in 2011 but, rather, on obscure, and as-yet not definitively settled, choice-of-law principles concerning New York's recognition of foreign marriage certificates in 2009. Ms. Windsor filed her claim here before New York recognized same-sex marriage, and her success depends on whether New York courts would have recognized a Canadian marriage certi- ficate issued to a same-sex couple at a time when New York would not issue such a certificate itself. If her claim is successful, the federal government would have to confront similar choice-of-law ques- tions in all the jurisdictions that retain the tradition- al definition. It was certainly rational for the federal government to prefer a uniform federal rule to the vagaries and difficulties of undertaking a multitude of such complex choice-of-law determinations. *35 When Hawaii threatened to break up the uni- formity of the states' definition of marriage, Con- gress essentially had two decisions to make. First, it had to decide between adopting a uniform federal rule or borrowing state definitions in a way that would produce a disparity in federal benefits. It was clearly rational for Congress, with its unique con- cern for treating citizens in Oklahoma the same as citizens in Hawaii, to choose the former. Second, once Congress decided to adopt a uniform rule, it had to decide whether to retain the traditional defin- ition and the approach of all 50 states at the time, or to alter the traditional definition to include same- sex couples. While either choice would have been rational, adopting the overwhelming majority ap- proach surely was a permissible option. By the same token, if at some future point all but a handful of jurisdictions recognize same-sex marriages, it would be entirely rational for Congress to change the law and adopt that majority approach as the uni- form rule. In short, the rationality of the federal government interest in uniformity is independent of the rule adopted. Despite the rationality of preferring a uniform fed- eral rule and adopting the majority approach as the federal rule, the courts below regarded Congress' interest in a uniform federal-law definition of mar- riage as at best suspicious, Supp. App. 24a, and at worst an illegitimate intrusion into state au- thority over marriage, Supp. App. 25a-26a. But such suspicions ignore both the unprecedented situ- ation Congress confronted and basic tenets of feder- alism. Suspicion of Congress' adoption of a uniform definition seems to stem from Congress' *36 tradi- tional willingness to borrow state law definitions. But when state definitions of marriage vary only in the details, it is understandable and commendable for federal law to borrow those definitions. On the other hand, when a state is on the verge of making a fundamental change to the definition, that creates a need for Congress to choose between uniformity and borrowing (a need that simply did not exist be- fore), and as demonstrated above, it is certainly ra- tional to choose the former. The suggestion that states somehow have special constitutional authority to define what the words marriage and spouse mean for purposes of fed- eral law runs entirely counter to our basic constitu- tional structure. Indeed, the presumption is the op- posite. It is well established that, unless Congress plainly manifests an intent to incorporate diverse state laws into a federal statute, the meaning of [a] federal statute should not be dependent on state law. United States v. Turley, 352 U.S. 407, 411 2013 WL 267026 (U.S.) Page 21 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (475 of 518) (1957); see also Helvering v. Davis, 301 U.S. 619, 645 (1937) (When money is spent to promote the general welfare, the concept of welfare is shaped by Congress, not the states.); see also Massachu- setts, 682 F.3d at 12 (Congress surely has an in- terest in who counts as married. The statutes and programs that section 3 governs are federal regimes and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.). The genius of the framers was in establishing two orders of government, each with its own direct *37 relationship, its own privity, its own set of mu- tual rights and obligations to the people who sustain it and are governed by it. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). Thus, when it comes to defining mar- riage for purposes of state law, the states may well enjoy constitutional power to make such determina- tions without federal interference. But DOMA does not interfere with or override state law, and Section 2 affirmatively promotes each state's interest in de- ciding this important issue for itself. At the same time, nothing in our federalism prevents the fed- eral sovereign from exercising its authority to inde- pendently determine the meaning of words in its own law. To be sure, Congress may choose to bor- row state-law definitions as a matter of cooperative federalism - and it historically has done so in many, but far from all, contexts with respect to marriage definitions. See supra at 4-6. But the notion that Congress is somehow constitutionally required to do so - that state law can reverse preempt con- trary federal statutes in this area, and eliminate what otherwise would be the legitimate federal in- terest in uniform federal legal rules of nationwide applicability - is wholly unprecedented and foreign to our constitutional tradition. C. DOMA Preserves Past Legislative Judgments, Conserves Financial Resources, and Avoids Uncer- tain and Unpredictable Effects on the Federal Fisc. Congress' decision to retain the traditional federal definition as the uniform federal rule in 1996 was supported by a number of other rational bases that are uniquely federal in nature. First, retaining the *38 traditional definition preserved the legislative judgments of earlier Congresses. Congress recog- nized that whatever the future held for the defini- tion of marriage, the multitude of federal statutes already on the books that used the terms marriage or spouse intended to incorporate the traditional definition of marriage. In some cases, that intent was explicit as statutes included references to husband and wife or other terms clearly incorpor- ating the traditional definition. In other cases, the legislative judgment reflected the traditional defini- tion implicitly, because the definition was uni- formly applied. See, e.g., Adams, 486 F. Supp. at 1122 (The term marriage necessarily and ex- clusively involves a contract, a status, and a rela- tionship between persons of different sexes. That is the way the term marriage is defined in every leg- al source that I have examined, starting with Black's Law Dictionary.). But in every case, the Congress that enacted DOMA in 1996 knew that each of the existing references to marriage in the United States Code, many of which were the product of legislative compromise, reflected the tra- ditional definition. Against that backdrop, it cer- tainly was rational for Congress to preserve those past legislative judgments and expressly adopt the traditional definition as an accurate reflection of past Congresses' intent when they used the defined terms in federal law. Congress' retention of the traditional definition of marriage also rationally avoided uncertain and un- predictable (but presumed negative) effects on the federal fisc. In enacting DOMA, Congress recog- nized that a great many financial benefits from *39 the government turn on whether one is married for purposes of federal law. See House Rep. 18. In DOMA, Congress made the conscious decision not to expand the category of beneficiaries just because a state chose to expand its definition of marriage. See id. (stating that DOMA will preserve scarce 2013 WL 267026 (U.S.) Page 22 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (476 of 518) government resources, surely a legitimate govern- ment purpose); 142 Cong. Rec. 22443 (1996) (Sen. Gramm) (DOMA prevents a new set of be- nefits and expenses which have not been planned or budgeted for under current law). Congress operated on the assumption that expand- ing the definition of marriage would have a sub- stantial net negative effect on the federal fisc. See id. at 22448 (Sen. Byrd) (changing definition of marriage could cost federal government hundreds of millions of dollars, if not billions); see also supra at 9-10. The exact net effect is uncertain be- cause although some benefits are extended exclus- ively to married couples, other laws operate as a marriage penalty or save the federal government funds if a marriage makes individuals ineligible for means-tested programs based on joint income. But Congress could rationally conclude that the net ef- fect would be negative (if for no other reason than couples with a financial disincentive to do so might be less inclined to officially tie the knot), and in all events Congress could rationally decide to avoid a potentially large and uncertain effect that would have radically different impacts across federal agencies. See Massachusetts, 682 F.3d at 9 (explaining that under rational basis standard, challenge to DOMA cannot prevail because Congress could rationally have believed that DOMA *40 would reduce costs). [FN8] Since DOMA would preserve the status quo ante of providing federal benefits only to couples married under the traditional definition, Section 3 would avoid this uncertain and unpredictable effect. [FN9] This Court has recognized *41 that when Congress declines to extend benefits to those not previously eligible - as it did in DOMA - such actions are sup- ported by the government's rational interest in pro- ceeding cautiously and protecting the fisc. Bowen v. Owens, 476 U.S. 340, 348 (1986). FN8. Ms. Windsor disputes DOMA's cost savings, pointing to a Congressional Budget Office report published in 2004 (eight years after DOMA's enactment). See Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same- Sex Marriages (2004), http:// www.cbo.gov/sites/default/files/cbofiles/ft pdocs/ 55xx/doc5559/06-21-samesexmarriage.pdf. But the Second Circuit correctly concluded that it was Congress' prerogative to find that DOMA will achieve a net benefit to the Treasury. App. 27a. The First Circuit likewise concluded that avoiding an uncer- tain impact on the federal fisc provides a rational basis for DOMA despite the CBO report. See Massachusetts, 682 F.3d at 9. Furthermore, the cursory ten-page CBO re- port - which acknowledged that its estimates are highly uncertain (at 3) - ap- pears to make a critical analytical error: In claiming that many same-sex couples would become ineligible for federal means-tested benefits after their incomes were combined (as marriage would re- quire), the report seemingly neglects to consider that many couples likely would avoid this financial hit simply by not mar- rying. Cf. id. (how many same-sex part- ners would marry if allowed is unknown). FN9. The Second Circuit viewed DOMA not as preserving the status quo, but as a benefit withdrawal because it function- ally eliminated longstanding federal recog- nition of all marriages that are properly ratified under state law. Supp. App. 27a. But that plainly is wrong because it ignores the state of the world in which Congress acted in 1996 in which the federal govern- ment had never extended a federal marital benefit to a same-sex couple. It also largely begs the question (and ignores Congress' bipartisan judgment in DOMA) by assuming that Congress' dominant in- tent had always been to borrow state law whatever its content rather than employ the traditional definition, notwithstanding the 2013 WL 267026 (U.S.) Page 23 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (477 of 518) numerous federal statutes that by their terms apply only to opposite-sex couples, see supra at 4-6. [T]he Constitution does not empower this Court to second-guess officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Dandridge v. Williams, 397 U.S. 471, 487 (1970). And here, there is no denying that a redefinition of marriage by a substantial number of states would have a significant, if not entirely predictable, effect on the federal budget. Thus, it is not surprising that the First Circuit recognized that DOMA satisfies traditional rational basis review because Congress could rationally have believed that DOMA would reduce costs. Massachusetts, 682 F.3d at 9. D. Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States. In enacting DOMA and adopting the traditional definition as the uniform federal rule, Congress re- cognized that the institution of marriage as between a man and a woman is, to borrow this Court's words from another context, deeply embedded in the his- tory and tradition of this country and has become part of the fabric of our society. Marsh v. Cham- bers, 463 U.S. 783, 786, 792 (1983). Congress ra- tionally could have regarded any significant change in the definition of this bedrock *42 institution as having potentially significant consequences. Con- gress thus rationally could have concluded that any experimentation with such a longstanding institu- tion should proceed first at the state level, while the federal government retains the traditional definition for its own purposes. See House Rep. 15. Virtually no society anywhere has had even a single generation's worth of experience with treating same-sex relationships as marriages. There thus is ample room for a wide range of rational predictions about the likely effects of such recognition - on the institution of marriage, on society as a whole, and on distinctly federal interests. As two supporters of same-sex marriage put it, whether same-sex mar- riage would prove socially beneficial, socially harmful, or trivial is an empirical question . There are plausible arguments on all sides of the is- sue, and as yet there is no evidence sufficient to settle them. William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America's Children, 15 Future of Children 97, 110 (2005), ht- tp:// futureofchil- dren.org/futureofchildren/publications/docs/15_02_ 06.pdf (endorsing limited, localized experiment at state level). One of the great benefits of federal- ism is that it allows states to adopt novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 310 (1932) (Brandeis, J., dissenting). In light of the uncertainty about the consequences of changing such a long-established institution, it certainly was rational for Congress to decide to al- low states to act as laboratories of democracy, while the federal government awaited the results of such state *43 experiments. E. The Federal Government Could Rationally Re- tain the Traditional Definition for the Same Reas- ons States Can Rationally Retain that Definition. Given its role in our federalist system, the federal government has unique interests in adopting the tra- ditional definition as the uniform national rule for federal-law purposes. The national government has a distinct interest in treating citizens in different states similarly for federal-law purposes, without regard to the vagaries of states' treatment of foreign judgments, and has a distinct interest in making a federal employee indifferent between working in Maryland or Virginia. But in addition to such uniquely national interests, Congress has the same reasons for retaining the traditional definition as the substantial majority of states that have done so. Al- though the federal government does not have the same direct effect on the institution of marriage as the sovereigns that directly issue marriage certific- 2013 WL 267026 (U.S.) Page 24 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (478 of 518) ates, federal law and federal definitions can still ef- fect such institutions at the margin. See Nat'l Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012) ([T]he Federal Government [has] consider- able influence even in areas where it cannot directly regulate.). Thus, the federal government can retain the traditional definition based on a rational belief that doing so will rationally further the institution of marriage in the long run. Indeed, the burden on the challengers to DOMA is to explain why, if states can rationally choose either to expand the tra- ditional definition to include same-sex couples or retain the traditional definition, the federal *44 government cannot rationally make the same choice. 1. Providing a Stable Structure to Raise Uninten- ded and Unplanned Offspring Many states have chosen to retain the traditional definition because of the intrinsic connection between marriage and children. In enacting DOMA, Congress recognized that, [s]imply put, govern- ment has an interest in marriage because it has an interest in children. House Rep. 13. Similarly, this Court has repeatedly recognized that marriage's im- portance is derived from its intrinsic connection to procreation. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 386 (1978) ([A] decision to marry and raise the child in a traditional family setting must receive [constitutional] protection.). The link between procreation and marriage itself re- flects a unique social difficulty with opposite-sex couples that is not present with same-sex couples - namely, the undeniable and distinct tendency of op- posite-sex relationships to produce unplanned and unintended pregnancies. Government from time im- memorial has had an interest in having such unin- tended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society. See Yarborough v. Yarborough, 290 U.S. 202, 221 (1933) (In order that children may not become public charges, the duty of maintenance is one imposed primarily upon the parents); King v. Smith, 392 U.S. 309, 330 (1968) (biological parents have legal duties of support that government fills when abdicated). Particularly in an earlier era when employment opportunities for women were at best limited, the prospect that *45 unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society was a substantial government concern. Thus, the core purpose and defining characteristic of the institu- tion of marriage always has been the creation of a social structure to deal with the inherently procreat- ive nature of the male-female relationship. Spe- cifically, the institution of marriage represents soci- ety's and government's attempt to encourage current and potential mothers and fathers to establish and maintain close, interdependent, and permanent rela- tionships, for the sake of their children, as well as society at large. It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring. Although much has changed over the years, the bio- logical fact that opposite-sex relationships have a unique tendency to produce unplanned and uninten- ded offspring has not. While medical advances, and the amendment of adoption laws through the demo- cratic process, have made it possible for same-sex couples to raise children, substantial advance plan- ning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without ad- vance planning). Thus, the traditional definition of marriage remains society's rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is per- fectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their *46 other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children. Indeed, Congress re- cognized as much. See House Rep. 14 (Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particu- lar interest in encouraging citizens to come together 2013 WL 267026 (U.S.) Page 25 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (479 of 518) in a committed relationship.). Court decisions upholding traditional marriage laws on the state level have employed similar reasoning. See, e.g., Hernandez, 855 N.E.2d at 7 ([The Legis- lature] could find that an important function of mar- riage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement - in the form of marriage and its attendant benefits - to op- posite-sex couples who [marry]. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples.); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006) (upholding Neb- raska's marriage law based a government interest in steering procreation into marriage ; noting that the statute confer[s] the inducements of marital re- cognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot); Con- away v. Deane, 932 A.2d 571, 630-31 (Md. 2007). DOMA's definition of marriage as between a wo- man and a man is rational - and constitutional - be- cause it is tailored to fit the social issue that the in- stitution of marriage addresses. The equal protec- tion guarantee is essentially a direction that *47 all persons similarly situated should be treated alike. Cleburne, 473 U.S. at 439. Opposite-sex couples and same-sex couples, whatever their other similar- ities, are not similarly situated with regard to their propensity to result in unplanned pregnancies. Principles of equal protection do not require Con- gress to ignore this reality. Nguyen v. INS, 533 U.S. 53, 66 (2001). 2. Encouraging the Rearing of Children by Their Biological Parents One of the strongest presumptions known to our culture and law is that a child's biological mother and father are the child's natural and most suitable guardians and caregivers, and that this family rela- tionship should be encouraged. See Santosky v. Kramer, 455 U.S. 745, 760 n.11, 766 (1982); Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843-47 (1977); Supp. App. 72a-73a & n.11. To be sure, our tradition offers the same protections for an adoptive parent-child relation- ship, once it is formed. But nonetheless when both biological parents want to raise their child, the law has long recognized a distinct preference for the child to be raised by those biological parents. Cf. Smith, 431 U.S. 816 at 823. And this bedrock as- sumption is grounded in common sense and human experience: Biological parents have a genetic stake in the success of their children that no one else does. See Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief 1-2 (2002), http:// www.childtrends.org/files/marriagerb602.pdf. Of course, only relationships between opposite-sex *48 couples can result in children being raised by both of their biological parents. Therefore, when government offers special encouragement and sup- port for relationships that can result in mothers and fathers jointly raising their biological children, it rationally furthers its legitimate interest in promot- ing this type of family structure in a way that ex- tending similar regulation to other relationships would not. 3. Promoting Childrearing by Both a Mother and a Father Finally, biological differentiation in the roles of mothers and fathers makes it rational to encourage situations in which children have one of each. As this Court has recognized, the two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both. United States v. Virginia, 518 U.S. 515, 533 (1996) (quotation marks omitted). Men and women are different. So are mothers and fathers. Common sense, and the experience of countless parents, in- forms us that children relate and often react differ- ently to mothers and fathers. It is thus rational for governments to offer special encouragement for 2013 WL 267026 (U.S.) Page 26 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (480 of 518) family structures in which these differing parental roles can complement each other. Moreover, the different challenges faced by boys and girls as they grow to adulthood make it at least rational to think that children benefit from having parental role mod- els of both sexes. *** The court of appeals concluded that reserving a special set of federal marital regulations and *49 in- centives for opposite-sex couples has nothing to do with the government interests in procreation and childrearing, because extending the same regime to same-sex couples would not change the availability of benefits to opposite-sex couples. Supp. App. 29a-30a. But that is not obviously correct in a world of limited resources and, in any event, is not the proper inquiry under rational basis review. In an equal protection challenge, a classification is ra- tional if the inclusion of one group promotes a le- gitimate governmental purpose, and the addition of other groups would not. Johnson v. Robison, 415 U.S. 361, 383 (1974). Even if extending the defini- tion of marriage to same-sex couples would not harm opposite-sex couples in the least, the question remains whether it was rational for Congress to draw the line where it did. And because the institu- tion of marriage arose in large measure in response to a unique social difficulty that opposite-sex couples, but not same-sex couples, posed, it was ra- tional for Congress to draw the line where it did. III. The Longstanding List Of Suspect And Quasi- Suspect Classes Should Not Be Expanded To In- clude Sexual Orientation. While rational basis review is a paradigm of judi- cial restraint, Beach, 508 U.S. at 314, the recogni- tion of quasi-suspect and suspect classes has the op- posite effect. It extracts certain issues from the nor- mal democratic process and limits the ability of states and the federal government to address those issues through their political branches. Accord- ingly, this Court has cautioned that the judiciary must be very reluctant to establish new suspect (or quasi-suspect) classes given our federal *50 system and our respect for the separation of powers. Cleburne, 473 U.S. at 441. In keeping with that admonition, this Court has not added to the short list of suspect or quasi-suspect classes in the last forty years, and indeed has rejected every proposed such class during that span, including mental disability, id. at 442-47, kinship, Lyng v. Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodrig- uez, 411 U.S. 1 (1973). This Court has had opportunities to declare sexual orientation a suspect class and has declined to do so. See Massachusetts, 682 F.3d at 9 (noting that this Court conspicuously failed to do so in Romer - a case that could readily have been disposed by such a demarche); App. 31a. The Second Circuit's holding in this case that sexual orientation classific- ations are quasi-suspect is truly an outlier - it is contrary to the thrust of this Court's decisions and directly conflicts with the decisions of eleven other circuits holding that such classifications are not subject to any heightened scrutiny. See supra at 13 n.4. This Court has identified four relevant factors in determining whether a class is suited for suspect or quasi-suspect treatment. None of these factors ad- equately supports adding sexual orientation to the list, and perhaps the most important - the political power to participate in the democratic process - tips decisively against making sexual orientation the first new suspect or quasi-suspect class in forty years. *51 A. Gays and Lesbians Are Far from Politically Powerless. More than twenty years ago, the Seventh and Ninth Circuits recognized that homosexuals are not without growing political power, and that [a] political approach is open to them to pursue their objectives. Ben-Shalom, 881 F.2d at 466; accord High Tech Gays, 895 F.2d at 574. Whatever the 2013 WL 267026 (U.S.) Page 27 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (481 of 518) limits of that conclusion two decades ago, there can be no serious doubt that the political power of gays and lesbians has increased exponentially since then. Today, same-sex marriage is supported by Presid- ent Obama (who has called for DOMA's repeal), Vice President Biden (who voted for DOMA as a Senator in 1996 but has since changed his view), and the Senate majority leader, the House minority leader, and the Democratic Party's 2012 platform. One-third of the Members of the U.S. House of Representatives filed a brief in the court below at- tacking both the wisdom and constitutionality of DOMA. Polling indicates that by 2011, the proportion of Americans supporting same-sex marriage had in- creased from 27% to 53% in a span of only 16 years. See Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gal- lup.com (May 20, 2011), ht- tp://www.gallup.com/poll/147662/first-time-majorit y-americans-favor-legal-gay-marriage.aspx. The November 2012 elections witnessed a record num- ber of openly gay candidates for Congress, and the election of the first openly gay U.S. Senator. Charles Mahtesian, A Record Number of Gay Can- didates, POLITICO.com (Oct. 2, 2012),http:// www.politico.com/blogs/ charlie-*52 mahtesian/ 2012/10/a-record-number-of-gay-candidates-13728 9.html. In that same election cycle, voters in Maine, Maryland, and Washington state passed measures allowing same-sex marriage, and Minnesota voters defeated a proposed traditional marriage amend- ment to the state constitution. The Maine result demonstrates the capacity for the give and take of the political process to change voters' minds, as the Maine referendum effectively reversed the result of a 2009 referendum. See Michael Falcone, Maine Vote Repeals Gay Marriage Law, POLITICO.com (Nov. 4, 2009), http:// www.politico.com/news/stories/1109/29119.html. In all, nine states and the District of Columbia now permit same-sex marriage. Although the initial pro- cess of recognizing same-sex marriage was promp- ted by judicial decisions interpreting state constitu- tions (as Congress foresaw in 1996), more recent gains have come via legislatures and at the polls through referenda. Nor have the successes been limited to the marriage issue, as dramatically illustrated by the repeal of the military's Don't Ask Don't Tell policy. See Don't Ask Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. 654 note. Even more broadly, the Human Rights Campaign, one of the nation's leading gay-rights organizations, has been ranked the second most successful polit- ical organization in the entire country by National Journal. Human Rights Campaign Lauds 2008 Election Results, HRC.org (Nov. 4, 2008), ht- tp://www.hrc.org/press-releases/entry/human-rights -campaign-lauds-2008-election-results (citing Bara Vaida and Neil Munro, Interest Groups-*53 Re- versal of Fortunes, Nat'l J., Nov. 11, 2006). And gays and lesbians represent nearly 20% of President Obama's top fundraisers. Michelle Garcia & An- drew Harmon, Obama's Power Gays, Advoc- ate.com (Oct. 24, 2011), http:// www.advocate.com/news/dailynews/2011/10/24/ob amas-power-gays; Dan Eggen, The Influence In- dustry: Same-Sex Marriage Issue Shows Import- ance of Gay Fundraisers, Wash. Post (May 9, 2012), http:// www.washingtonpost.com/politics/same-sex-marria ge-debate-many-of- obamas- top-fun- draisers- are-gay/2012/05/09/gIQASJYSDU_story.html. Last but not least, the decision of the President and Attorney General to stop defending and start attack- ing DOMA itself demonstrates the remarkable political clout of the same-sex marriage movement. As the Chief Judge of the Second Circuit remarked to the Department's representative at oral argument, your presence here is like an argument against your argument. Appendix to Response in Support of Writ of Certiorari Before Judgment, No. 12-307, 37a (Oct. 10, 2012). 2013 WL 267026 (U.S.) Page 28 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (482 of 518) In short, gays and lesbians are one of the most in- fluential, best-connected, best-funded, and best- organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characteriz- ing such a group as politically powerless would be wholly inconsistent with this Court's admonition that a class should not be regarded as suspect when the group has some ability to attract the attention of the lawmakers. Cleburne, 473 U.S. at 445. Gays and lesbians not only have the *54 attention of law- makers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. This Court has never definit- ively determined which of the four factors is neces- sary or sufficient, but given that the ultimate in- quiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here. B. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Government's Interests in Recognizing Marriage. This Court has also looked to the question whether a group has distinguishing characteristics relev- ant to the distinctions actually drawn. Whatever the relevance of homosexuality in any other context, the relevant distinguishing characteristic of same- sex couples is their propensity to engage in rela- tionships that do not produce unplanned and unin- tended offspring. Citizens for Equal Prot., 455 F.3d at 866-67 (quoting Cleburne, 445 U.S. at 441). And, as explained supra, the evolution of marriage as a response to the unique social concerns of the unintended and unplanned offspring of opposite-sex relationships makes this distinguishing characterist- ic of same-sex relationships highly relevant. Id. at 867; see supra at 44-47. C. Sexual Orientation Is Not an Immutable Char- acteristic. Sexual orientation differs in multiple dimensions from any previously recognized suspect or quasi- *55 suspect class. It is defined by a propensity to engage in a certain kind of conduct; the cause of that propensity is not well understood by science; sexual orientation is not determinable at birth; for at least some, sexual orientation is a fluid character- istic capable of changing over a person's lifetime; and the proposed class is difficult to define. As courts have recognized, homosexuality differs fundamentally from those [characteristics] defining any of the recognized suspect or quasi-suspect classes . The conduct or behavior of the members of a recognized suspect or quasi-suspect class has no relevance to the identification of those groups. Woodward, 871 F.2d at 1076; Ben-Shalom, 881 F.2d at 464; accord High Tech Gays, 895 F.2d at 573-74. There is no precedent for creating a suspect class that is based on the class' propensity to engage in a certain kind of conduct. Not only is sexual orientation different from every recognized suspect class in that it is based on a propensity to engage in certain conduct, the cause of that propensity is not well understood. Accord- ing to Ms. Windsor's own expert, Dr. Letitia Pe- plau: Currently, the factors that cause an individual to be- come heterosexual, homosexual, or bisexual are not well understood. Many theories have been proposed but no single theory has gained prominence or is definitively established by scientific research. Today, most social and behavioral scientists view sexual orientation as resulting from the interplay of biological, psychological, and social factors. *56 JA 500. Thus, while sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality), the same cannot be said of sexual orientation. For some persons, sexual orientation is fluid. And, as Dr. Peplau ad- mits, a person's sexual orientation often cannot be 2013 WL 267026 (U.S.) Page 29 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (483 of 518) readily categorized as heterosexual, homosexual, or perhaps bisexual. In fact, human experience often defies such clear-cut categories. Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Wo- men's Sexual Orientation: Implications for Ther- apy, 24 Women & Therapy 111, 113 (2001). In- stead, according to the American Psychological As- sociation, sexual orientations form a continuum, from exclusive attraction to the other sex to exclus- ive attraction to the same sex. Am. Psychological Ass'n, Answers to Your Questions: For a Better Un- derstanding of Sexual Orientation & Homosexual- ity, http:// www.apa.org/topics/sexuality/orientation.aspx/. Fi- nally, when considering homosexuality as a poten- tial suspect class, the complexities involved merely in defining the term would prohibit a de- termination of suspect classification. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977) (declining to recognize transsexuals as a sus- pect class). D. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy Are Different. Finally, each of the recognized suspect and quasi- suspect classes - racial minorities, aliens, women, and those born out of wedlock - have suffered *57 discrimination for longer than history has been re- corded. In contrast, as this Court noted in Lawrence, there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. 539 U.S. at 568. Indeed, the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. Id. As Ms. Windsor's own expert, Dr. George Chauncey, has written, although antigay discrim- ination is popularly thought to have ancient roots, in fact it is a unique and relatively short-lived product of the twentieth century. George Chaun- cey, Why Marriage?: The History Shaping Today's Debate Over Gay Equality 14 (2004). According to Dr. Chauncey, [m]ost of the [discrimination] was put in place between the 1920s and 1950s, and most was dismantled between the 1960s and the 1990s. Owen Keehnen, The Case for Gay Marriage: Talk- ing with Why Marriage? Author George Chauncey, GLBTQ.com (2004), http:// www.glbtq.com/sfeatures/interviewgchauncey.html . More important, unlike racial minorities and wo- men, homosexuals as a class have never been polit- ically disenfranchised - the kind of pervasive offi- cial discrimination that most clearly supports sus- pect class treatment by the courts. See United States v. Carotene Prods. Co., 304 U.S. 144, 152 n.4 (1938). [FN10] FN10. Although heightened scrutiny is clearly inappropriate, DOMA could sur- vive even under that more demanding standard. In our federalist system, it is surely an important interest for each sover- eign to be able to address an issue as divis- ive and fast-moving as same-sex marriage for itself. DOMA is narrowly tailored to accomplish this important government in- terest by preventing one state's decision from dictating the result for other states or the federal government. *58 *** In sum, the traditional factors this Court has as- sessed in determining whether to recognize a new quasi-suspect or suspect class are absent when it comes to gays and lesbians. Perhaps most critically, gays and lesbians have substantial political power, and that power is growing. Victories at the ballot box that would have been unthinkable a decade ago have become routine. To be sure, those victories have not been uniform and have come first in blue states rather than red ones, but that is the nature of the political process. There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fast-moving as same-sex marriage. As Judge Straub observed, the definition of marriage is an issue for the American people and their elected rep- 2013 WL 267026 (U.S.) Page 30 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (484 of 518) resentatives to settle through the democratic pro- cess. Supp. App. 83a. Indeed, the democratic process has substantial ad- vantages over constitutionalizing this issue. Same- sex marriage is being actively debated in legis- latures, in the press, and at every level of govern- ment and society across the country. That is how it should be. These fora require participants on both sides to persuade those who disagree, rather than labeling them irrational or bigoted. By contrast, courts can intervene in this robust de- bate only to cut it short, Supp. App. 83a, and only *59 by denouncing the positions of hundreds of Members of Congress who voted for DOMA, of the President who signed it, and of a vast swath of the American people as not just mistaken or antiquated, but as wholly irrational. That conclusion is plainly unwarranted as a matter of constitutional law, and judicially constitutionalizing the issue of same-sex marriage is unwarranted as a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves. This Court should permit[] this de- bate to continue, as it should in a democratic soci- ety. Washington v. Glucksberg, 521 U.S. 702, 735 (1997). CONCLUSION For the foregoing reasons, the judgment of the court of appeals should be reversed. *1A TABLE OF CONTENTS Relevant Constitutional and Statutory Provisions U.S. Const. amend. V ... 1a Defense of Marriage Act, 3, 1 U.S.C. 7 ... 2a Defense of Marriage Act, 2, 28 U.S.C. 1738C ... 3a *2A RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Const. amend V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. *3a Defense of Marriage Act, 3, 1 U.S.C. 7 In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a hus- band or a wife. *4a Defense of Marriage Act, 2, 28 U.S.C. 1738C No State, territory, or possession of the United States, or Indian tribe, shall be required to give ef- fect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe re- specting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession or tribe, or a right or claim arising from such relationship. United States of America v. Windsor 2013 WL 267026 (U.S. ) (Appellate Brief ) END OF DOCUMENT 2013 WL 267026 (U.S.) Page 31 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (485 of 518) Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Deb WHITEWOOD, et al., Plaintiffs, v. Michael WOLF, in his official capacity as Secret- ary, Pennsylvania Department of Health, et al., De- fendants. No. 1:13cv1861. Signed May 20, 2014. Background: Plaintiffs, including eleven lesbian and gay couples, one widow, and two teenage chil- dren of one of aforesaid couples, brought 1983 action against Commonwealth of Pennsylvania, challenging two provisions of state's Domestic Re- lations Code that limited marriage to opposite-sex couples and prohibited recognition of same-sex marriages legally entered into in other jurisdictions. Parties moved and cross-moved for summary judg- ment. Holdings: The District Court, John E. Jones III, J., held that: (1) Supreme Court's summary dismissal in Baker v. Nelson was no longer controlling precedent; (2) plaintiffs sufficiently established that they suffered actionable harms due to challenged provi- sions; (3) plaintiffs had fundamental right to marry, which was infringed by same-sex marriage ban; (4) non-recognition provision violated plaintiffs' fundamental liberty interest in legal recognition of their marriages; (5) on equal protection challenge, intermediate scrutiny was warranted; and (6) challenged provisions did not survive intermedi- ate scrutiny. Plaintiff's motion granted. West Headnotes [1] Courts 106 96(3) 106 Courts 106II Establishment, Organization, and Proced- ure 106II(G) Rules of Decision 106k88 Previous Decisions as Controlling or as Precedents 106k96 Decisions of United States Courts as Authority in Other United States Courts 106k96(3) k. Supreme Court de- cisions. Most Cited Cases Courts 106 96(7) 106 Courts 106II Establishment, Organization, and Proced- ure 106II(G) Rules of Decision 106k88 Previous Decisions as Controlling or as Precedents 106k96 Decisions of United States Courts as Authority in Other United States Courts 106k96(7) k. Particular questions or subject matter. Most Cited Cases United States Supreme Court's summary dis- missal in Baker v. Nelson, which challenged Min- nesota's restriction of marriage to same-sex couples as violative of due process and equal protection rights under Fourteenth Amendment, was no longer controlling precedent, and thus present 1983 suit to challenge constitutionality of Pennsylvania stat- utes limiting marriage to opposite-sex couples and prohibiting recognition of same-sex marriages leg- ally entered into in other jurisdictions presented substantial question of federal law over which dis- trict court had jurisdiction; since Baker v. Nelson, Supreme Court had decided several cases demon- strating that it no longer viewed constitutional chal- lenges based on sex or sexual identity classifica- tions as unsubstantial, and Supreme Court ulti- mately held in Windsor that provision of Defense of Marriage Act (DOMA) defining, for federal law, marriage only as legal union between a man and Page 1 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (486 of 518) a woman and spouse only as person of opposite sex who was husband or wife, violated Fifth Amendment's Due Process Clause. U.S.C.A. Const.Amends. 5, 14; 42 U.S.C.A. 1983; 1 U.S.C.A. 7; 23 Pa.C.S.A. 1102, 1704. [2] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-sex marriage. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of foreign union. Most Cited Cases Plaintiffs, including eleven lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples, sufficiently estab- lished that they suffered actionable harms due to two provisions of Pennsylvania's Domestic Rela- tions Code that limited marriage to opposite-sex couples and prohibited recognition of same-sex marriages legally entered into in other jurisdictions, as required to meet their burden of proof on 1983 claim to challenge those provisions as violative of due process and equal protection, since those provi- sions imposed disadvantage, separate status, and stigma upon plaintiffs in eyes of state and broader community, as well as daily harms in areas of child-rearing, healthcare, taxation, and end-of-life planning. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. 1983; 23 Pa.C.S.A. 1102, 1704. [3] Constitutional Law 92 3873 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3868 Rights, Interests, Benefits, or Privileges Involved in General 92k3873 k. Liberties and liberty in- terests. Most Cited Cases Due Process Clause of the Fourteenth Amend- ment guarantees that all citizens have certain funda- mental rights, comprised within the term liberty, that are protected by the federal Constitution from invasion by the states. U.S.C.A. Const.Amend. 14. [4] Constitutional Law 92 4384 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4384 k. In general. Most Cited Cases Encompassed within the right to liberty under the Due Process Clause of the Fourteenth Amend- Page 2 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (487 of 518) ment is the fundamental right to marry. U.S.C.A. Const.Amend. 14. [5] Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-sex marriage. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Plaintiffs, including eleven lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples, had fundamental right to marry under Due Process Clause of Fourteenth Amendment, and such right was infringed upon by provision of Pennsylvania's Domestic Relations Code that limited marriage to opposite-sex couples; such right was personal right to be exercised by in- dividual, and concepts of history and tradition did not dictate that same-sex marriage was excluded from this right, and such right was not a new right, but was rather right that plaintiffs were always guaranteed by federal Constitution. U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1102. [6] Constitutional Law 92 3893 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3892 Substantive Due Process in Gen- eral 92k3893 k. In general. Most Cited Cases History and tradition are the starting point, but not in all cases the ending point, of the substantive due process inquiry. U.S.C.A. Const.Amend. 14. [7] Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-sex marriage. Most Cited Cases Fundamental right to marry, as protected by the Due Process Clause of the Fourteenth Amendment, encompasses the right to marry a person of one's own sex. U.S.C.A. Const.Amend. 14. [8] Constitutional Law 92 4385 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)18 Families and Children 92k4383 Marital Relationship 92k4385 k. Same-sex marriage. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of foreign union. Most Cited Cases Page 3 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (488 of 518) Provision of Pennsylvania's Domestic Rela- tions Code that prohibited recognition of same-sex marriages legally entered into in other jurisdictions violated Due Process Clause of Fourteenth Amend- ment by robbing those individuals who were already married of their fundamental liberty interest in legal recognition of their marriages. U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1704. [9] Constitutional Law 92 3041 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)5 Scope of Doctrine in Gener- al 92k3038 Discrimination and Classific- ation 92k3041 k. Similarly situated per- sons; like circumstances. Most Cited Cases Equal Protection Clause of the Fourteenth Amendment effectively directs the like treatment of similarly-situated persons. U.S.C.A. Const.Amend. 14. [10] Constitutional Law 92 3050 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3050 k. In general. Most Cited Cases Laws reviewed under the Equal Protection Clause are subject to various levels of scrutiny de- pending upon the classification imposed. U.S.C.A. Const.Amend. 14. [11] Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases Constitutional Law 92 3072 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3069 Particular Classes 92k3072 k. Alien status. Most Cited Cases Constitutional Law 92 3078 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3069 Particular Classes 92k3078 k. Race, national origin, or ethnicity. Most Cited Cases On a challenge under the Equal Protection Clause, strict scrutiny is reserved for statutes en- gendering suspect classifications, such as those based on race, alienage, or national origin, and re- quires the government to demonstrate that the law is narrowly tailored to further compelling state in- terests. U.S.C.A. Const.Amend. 14. [12] Constitutional Law 92 3061 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3061 k. Intermediate scrutiny in general. Most Cited Cases Constitutional Law 92 3074 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny Page 4 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (489 of 518) 92k3069 Particular Classes 92k3074 k. Illegitimacy. Most Cited Cases Constitutional Law 92 3081 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3069 Particular Classes 92k3081 k. Sex or gender. Most Cited Cases On a challenge under the Equal Protection Clause, to survive intermediate scrutiny, as applied to classifications deemed quasi-suspect, such as those based on sex or illegitimacy, a statutory clas- sification must be substantially related to an im- portant governmental objective. U.S.C.A. Const.Amend. 14. [13] Constitutional Law 92 3057 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Reasonableness 92k3057 k. Statutes and other writ- ten regulations and rules. Most Cited Cases On an equal protection challenge to statutory classifications that do not target suspect or quasi- suspect groups, courts apply rational-basis review, which is satisfied if a statutory classification is ra- tionally related to a legitimate governmental pur- pose. U.S.C.A. Const.Amend. 14. [14] Constitutional Law 92 1040 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)4 Burden of Proof 92k1032 Particular Issues and Applica- tions 92k1040 k. Equal protection. Most Cited Cases Constitutional Law 92 3057 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Reasonableness 92k3057 k. Statutes and other writ- ten regulations and rules. Most Cited Cases On a challenge under the Equal Protection Clause, review for rationality is highly deferential to the legislature, and the burden rests with the challenger to negate every possible basis for the law. U.S.C.A. Const.Amend. 14. [15] Constitutional Law 92 3061 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3061 k. Intermediate scrutiny in general. Most Cited Cases Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases Certain criteria should be evaluated in determ- ining whether a class qualifies as suspect or quasi- suspect, for purposes of determining the appropriate level of scrutiny to apply on an equal protection challenge, querying whether the group: (1) has been Page 5 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (490 of 518) subjected to a history of purposeful unequal treat- ment; (2) possesses a characteristic that frequently bears no relation to ability to perform or contribute to society; (3) exhibits obvious, immutable, or dis- tinguishing characteristics that define them as a dis- crete group; and (4) is a minority or politically powerless. U.S.C.A. Const.Amend. 14. [16] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of foreign union. Most Cited Cases Protracted historical record of injustices against gay and lesbian persons in United States, including in Pennsylvania, strongly favored recognition of sexual orientation as quasi-suspect class, and thus application of heightened scrutiny on equal protec- tion challenge against two provisions of Pennsylvania's Domestic Relations Code that lim- ited marriage to opposite-sex couples and prohib- ited recognition of same-sex marriages legally entered into in other jurisdictions; that history in- cluded government-sanctioned discrimination such as criminalization of homosexual conduct and in areas of immigration, citizenship, and employment, as well as pervasive police harassment, portrayal in media as perverts and child molesters, and victimiz- ation in hate crimes. U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1102, 1704. [17] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of foreign union. Most Cited Cases Relation to ability factor weighed strongly in favor of recognizing sexual orientation as a quasi- suspect class, and thus in favor of applying heightened scrutiny on equal protection challenge against two provisions of Pennsylvania's Domestic Relations Code that limited marriage to opposite- sex couples and prohibited recognition of same-sex marriages legally entered into in other jurisdictions, since sexual orientation had no relevance to plaintiffs' capabilities as citizens. U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1102, 1704. [18] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children Page 6 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (491 of 518) 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of foreign union. Most Cited Cases Distinguishing characteristic factor weighed in favor of recognizing sexual orientation as a quasi- suspect class, and thus in favor of applying heightened scrutiny on equal protection challenge against two provisions of Pennsylvania's Domestic Relations Code that limited marriage to opposite- sex couples and prohibited recognition of same-sex marriages legally entered into in other jurisdictions, since sexual orientation was so fundamental to plaintiffs' identities that no individual should be re- quired to abandon it. U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1102, 1704. [19] Constitutional Law 92 3061 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3061 k. Intermediate scrutiny in general. Most Cited Cases Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases When determining whether a class qualifies as suspect or quasi-suspect, for purposes of determin- ing the appropriate level of scrutiny to apply on an equal protection challenge, although the distin- guishing characteristic factor is often phrased in terms of immutability, the test is broader, encom- passing groups whose members can hide the distin- guishing trait and where the characteristic is subject to change. U.S.C.A. Const.Amend. 14. [20] Constitutional Law 92 3061 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3061 k. Intermediate scrutiny in general. Most Cited Cases Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases Political power factor for determining whether a class qualifies as suspect or quasi-suspect, for purposes of determining the appropriate level of scrutiny to apply on an equal protection challenge, centers on relative political influence and inquires whether the discrimination is unlikely to be soon rectified by legislative means. U.S.C.A. Const.Amend. 14. [21] Constitutional Law 92 3061 Page 7 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (492 of 518) 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3061 k. Intermediate scrutiny in general. Most Cited Cases Constitutional Law 92 3062 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3062 k. Strict scrutiny and com- pelling interest in general. Most Cited Cases While germane, the political power factor for determining whether a class qualifies as suspect or quasi-suspect, for purposes of determining the ap- propriate level of scrutiny to apply on an equal pro- tection challenge, is not essential for recognition as a suspect or quasi-suspect class. U.S.C.A. Const.Amend. 14. [22] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Under political power factor for determining whether sexual orientation should be considered suspect or quasi suspect class, for purposes of de- termining appropriate level of scrutiny to apply on equal protection challenge against two provisions of Pennsylvania's Domestic Relations Code that limited marriage to opposite-sex couples and pro- hibited recognition of same-sex marriages legally entered into in other jurisdictions, question was not whether homosexual individuals had achieved political successes in part, as they clearly had, but rather whether they had strength to politically pro- tect themselves from wrongful discrimination. U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1102, 1704. [23] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of foreign union. Most Cited Cases Political power factor weighed slightly in favor of recognizing sexual orientation as a quasi-suspect class, and thus in favor of applying heightened scrutiny on equal protection challenge against two provisions of Pennsylvania's Domestic Relations Code that limited marriage to opposite-sex couples and prohibited recognition of same-sex marriages legally entered into in other jurisdictions, despite gains that had been achieved by gay rights move- ment, in view of general lack of statutory protec- tions for homosexual individuals. U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1102, 1704. [24] Constitutional Law 92 3082 92 Constitutional Law 92XXVI Equal Protection Page 8 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (493 of 518) 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3069 Particular Classes 92k3082 k. Sexual orientation. Most Cited Cases Homosexual individuals compose a class that is subject to heightened scrutiny on an equal protec- tion challenge, and this class is quasi-suspect, as opposed to suspect. U.S.C.A. Const.Amend. 14. [25] Constitutional Law 92 3061 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3059 Heightened Levels of Scru- tiny 92k3061 k. Intermediate scrutiny in general. Most Cited Cases Quasi-suspect classifications are subject to heightened review on an equal protection challenge because the preeminent characteristic of the group generally provides no sensible ground for differen- tial treatment. U.S.C.A. Const.Amend. 14. [26] Constitutional Law 92 3438 92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)12 Sexual Orientation 92k3436 Families and Children 92k3438 k. Marriage and civil uni- ons. Most Cited Cases Marriage 253 2 253 Marriage 253k2 k. Power to regulate and control. Most Cited Cases Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases Marriage 253 17.5(2) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(2) k. Effect of foreign union. Most Cited Cases Commonwealth of Pennsylvania failed to ad- vance any sufficiently important government in- terest that was served by two provisions of its Do- mestic Relations Code that limited marriage to op- posite-sex couples and prohibited recognition of same-sex marriages legally entered into in other jurisdictions, and thus provisions did not survive in- termediate scrutiny on equal protection challenge asserted by eleven lesbian and gay couples, one widow, and two teenage children of one of afore- said couples; Pennsylvania advanced several in- terests, but only defended two of those interests, tradition and promotion of procreation, child- rearing, and well-being of children, but it claimed only that these interests were legitimate, advan- cing no argument that these interests were important, and it did not explain purported rela- tionship between classification and these interests, much less any persuasive justification. U.S.C.A. Const.Amend. 14; 23 Pa.C.S.A. 1102, 1704. [27] Marriage 253 17.5(1) 253 Marriage 253k17.5 Same-Sex and Other Non-Traditional Unions 253k17.5(1) k. In general. Most Cited Cases That same-sex marriage causes discomfort in some does not make its prohibition constitutional. [28] Constitutional Law 92 3000 92 Constitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)1 In General 92k3000 k. In general. Most Cited Page 9 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (494 of 518) Cases Constitutional Law 92 3840 92 Constitutional Law 92XXVII Due Process 92XXVII(A) In General 92k3840 k. In general. Most Cited Cases Past tradition cannot trump the bedrock consti- tutional guarantees of due process and equal protec- tion. U.S.C.A. Const.Amends. 5, 14. West Codenotes Held Unconstitutional23 Pa.C.S.A. 1102, 1704. Dylan J. Steinberg, John S. Stapleton, Mark A. Aronchick, Hangley Aronchick Segal Pudlin & Schiller, Mary Catherine Roper, American Civil Liberties Union of Pennsylvania, Molly M. TackHooper, ACLU of Pennsylvania, Rebecca S. Melley, Segal Pudlin & Schiller, Seth F. Kreimer, Philadelphia, PA, James D. Esseks, Leslie Cooper, American Civil Liberties Union Foundation, New York, NY, Witold J. Walczak, American Civil Liberties Union of PA, Pittsburgh, PA, Helen E. Casa, Hangley Aronchick Segal Pudlin & Schiller, Norristown, PA, for Plaintiffs. Joel L. Frank, William H. Lamb, Lamb McErlane P.C., West Chester, PA, Thomas J. Jezewski, Swartz Campbell, LLC, Pittsburgh, PA, Frank A. Chernak, John P. McLaughlin, Ballard Spahr An- drews & Ingersoll LLP, Philadelphia, PA, for De- fendants. MEMORANDUM OPINION JOHN E. JONES III, District Judge. *1 Today, certain citizens of the Common- wealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Common- wealth's laws to the contrary are unconstitutional. We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage. I. BACKGROUND Plaintiffs in this action protest the constitution- ality of two provisions of Pennsylvania's Domestic Relations Code, which limit marriage to opposite- sex couples and prohibit the recognition of same- sex marriages legally entered into in other jurisdic- tions (collectively, the Marriage Laws). A. The Marriage Laws In 1996, Pennsylvania was one of 14 states to amend its laws to add anti-ceremony and anti- recognition provisions applicable to same-sex couples. The proliferation of such laws across the countryanother 11 states added similar provisions the following yearwas in response to litigation in Hawaii, in which the Hawaii Supreme Court had held the state's ban on same-sex marriage to be pre- sumptively violative of the state's equal protection clause. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). In Pennsylvania, Representative C. Allan Egolf of Perry County sponsored the marriage amend- ment and described it as an expression of Pennsylvania's traditional and longstanding policy of moral opposition to same-sex marriages ... and support of the traditional family unit. (Doc. 11518, p. 27). Ultimately, both houses passed the legislation by overwhelming majorities, the House by 177 to 16, and the Senate by 43 to 5. The Pennsylvania Marriage Laws define marriage as [a] civil contract by which one man and one woman take each other for husband and wife. 23 Pa.C.S. 1102. In addition, a provision entitled Marriage between persons of the same sex states as follows: Page 10 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (495 of 518) It is hereby declared to be the strong and long- standing public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth. 23 Pa.C.S. 1704. As stated, the Marriage Laws have the effect of preventing same-sex couples from marrying in Pennsylvania and nullify- ing the marriages of same-sex couples legally mar- ried elsewhere for purposes of recognition in the Commonwealth. B. The Plaintiffs FN1 Plaintiffs are Deb and Susan Whitewood, and their teenage daughters, A.W. and K.W.; Maureen Hennessey; Lynn and Fredia Hurdle; Fernando ChangMuy and Len Rieser; Julia Lobur and Marla Cattermole; Dawn Plummer and Diana Polson; Dara Raspberry and Helena Miller; Ron Gebhardts- bauer and Greg Wright; Sandy Ferlanie and Christine Donato; Heather and Kath Poehler; An- gela Gillem and Gail Lloyd; and Edwin Hill and David Palmer. Five of the couples are unmarried, seeking to wed in Pennsylvania, and six of the couples, as well as Maureen Hennessey, desire to have their valid, out-of-state marriages recognized by the Commonwealth. *2 As a group, they represent the great di- versity of the Commonwealth of Pennsylvania. They hail from across the state, making their homes in Allegheny, Dauphin, Centre, Northampton, Delaware, Chester, and Philadelphia Counties. They come from all walks of life; they include a nurse, state employees, lawyers, doctors, an artist, a newspaper delivery person, a corporate executive, a dog trainer, university professors, and a stay- at-home parent. They have served our country in the Army and Navy. Plaintiffs' personal back- grounds reflect a richness and diversity: they are AfricanAmerican, Caucasian, Latino, and Asian; they are Catholic, Baptist, Methodist, Jewish, Quaker, Buddhist, and secular. In terms of age, they range from a couple in their 30s with young chil- dren, to retirees in their 60s. Many of the couples have been together for decades. As plainly reflected in the way they live their lives, the plaintiff couples are spouses in every sense, except that the laws of the Commonwealth prevent them from being recognized as such. For better, for worse The plaintiff couples have shared in life's joys. They have purchased homes together and blended their property and finances. They have started fam- ilies, welcoming children through birth and adop- tion. Some of them have celebrated their commit- ment to each other through marriage in other states, sharing their wedding day with family and friends. Yet, with each of these joys there has been con- comitant hardship resulting from the Marriage Laws. In terms of property ownership, all of the couples face the payment of Pennsylvania's inherit- ance taxincluding on half of the value of jointly- owned homes and bank accountsat 15 percent, the highest rate. For those couples who have had children, like Dawn Plummer and Diana Polson, the non- biological parent has had to apply for a second-par- ent adoption. Dawn expresses that she and Diana are presently saving money so that she can legally adopt their second son, J.P. Until the adoption is complete, she has no legal ties to J.P., despite that, together, she and Diana dreamed of welcoming him to their family, prepared for his birth, and func- tioned as a married couple long before having him. Christine Donato, who together with Sandy Fer- lanie completed a second-parent adoption in similar circumstances, describes the process as long, ex- pensive, and humiliating. The couples choosing to adopt, like Fernando ChangMuy and Len Rieser, had to undergo a two-step process, incurring double the costs, in which one became their child's legal parent and, later, the other petitioned for a second- parent adoption. For the children of these couples, it can be difficult to understand why their parents Page 11 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (496 of 518) are not married or recognized as married. In the words of Deb Whitewood, It sends the message to our children that their family is less deserving of re- spect and support than other families. That's a hurt- ful message. In addition, for the couples who have chosen to marry out-of-state, they are acutely sensitive that their marital status changes when they cross state lines. Edwin Hill describes driving home to Pennsylvania after wedding David Palmer in Maine in 2013, elated to be traveling through all of the northeastern states that recognize their marriage. And then we crossed the Delaware River into Pennsylvania, he recalls, and we looked at each other and said, We're not married anymore. And that hurt. Further, the married couples must still identify themselves as single in Pennsylvania, for example, on their state income taxes. Many have remarked on the pain this causes them, describing that it feels terrible, wrong, and like a denial of [their] relationship to tick the box marked single. For richer, for poorer *3 The plaintiff couples share their resources and support each other financially. But Plaintiffs commonly echo a sense of legal and economic vul- nerability because of Pennsylvania's Marriage Laws. Many of them have paid lawyers to draft pro- tective documents, like wills and powers of attor- ney, in efforts to emulate some of the protections afforded to couples recognized as married. Susan Whitewood estimates that her family has spent over $10,000 in legal fees for the preparation and main- tenance of such documents, which would not have been necessary if the Commonwealth acknow- ledged their marriage. Angela Gillem and Gail Lloyd describe feeling particularly insecure. Angela is a clinical psycholo- gist and the primary bread-winner, while Gail is an artist who does not draw a steady paycheck or con- tribute to Social Security. Angela expresses that she has taken every step [she] can to ensure [Gail's] financial security but that they still cannot duplic- ate all of the protections married couples receive, and she live[s] every day with the fear that the steps [she has] taken will not be enough to protect Gail if something should happen to [her]. In sickness and in health The plaintiff couples have supported each other through illness and medical emergencies. Yet, be- cause Pennsylvania considers them legal strangers, they may be left vulnerable in times of crisis. Vari- ous of the plaintiffs express anxiety at the possibil- ity that they would not be allowed to comfort or gain information about their partner's condition in the event of an emergency, despite the fact that they have prepared powers of attorney. Lynn Hurdle re- members feelings of fear and helplessness when her partner, Fredia, was admitted to the hospital for un- expected surgery. Doctors began operating earlier than planned, and when Lynn discovered Fredia's hospital room to be empty, staff would not tell her why Fredia had been taken early or where she was. Until death do us part The plaintiff couples demonstrate an intention to live out their lives together. Plaintiff Maureen Hennessey and her partner of 29 years, Mary Beth McIntyre, present a powerful example. When Mary Beth was diagnosed with inoperable Stage 4 lung cancer, Maureen left her job to care for her and to help run Mary Beth's business until her death. To- wards the end of her life, Mary Beth required Maureen's help to get out of bed and to the bath- room, and to assist in self-care and administer med- ications. They were married in Massachusetts after Mary Beth fell ill, but because Pennsylvania does not recognize their marriage, the line for surviving spouse was left blank and Mary Beth was identi- fied as never married on her death certificate. Maureen was listed as the informant. Wishing to have their relationships recognized for what they are in the state they call home, and by doing so to transcend the pain, uncertainty, and in- justice visited by the Marriage Laws, Plaintiffs brought this suit. Page 12 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (497 of 518) II. PROCEDURAL HISTORY *4 Plaintiffs commenced this action on July 9, 2013 against Defendants Governor Thomas Corbett; Secretary of the Pennsylvania Department of Health Michael Wolf; Attorney General Kath- leen Kane; Register of Wills of Washington County Mary Jo Poknis; and Register of Wills and Clerk of Orphans' Court of Bucks County Donald Petrille, Jr. (Doc. 1). Plaintiffs seek declarations that the Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amend- ment and a permanent injunction enjoining Defend- ants from depriving Plaintiffs and other same-sex couples of the right to marry and directing Defend- ants to recognize same-sex marriages validly entered into in other jurisdictions, as well as costs, fees, and any other relief deemed appropriate by the Court. On September 30, 2013, Defendants filed mo- tions to dismiss. During the pendency of those mo- tions, Plaintiffs voluntarily dismissed Defendants Corbett, Kane, and Poknis. Thereafter, on Novem- ber 7, 2013, Plaintiffs filed an amended complaint against Defendants Wolf and Petrille, and addition- ally named Pennsylvania Secretary of Revenue Dan Meuser, as a defendant. (Doc. 64). On November 15, 2013, we denied Defendants' motions to dis- miss. (Doc. 67). After the conclusion of discovery, the parties filed cross-motions for summary judgment. (Docs. 113, 116). The motions have been fully briefed, and the parties agree that there are no genuine disputes of material fact. FN2 Accordingly, the constitutional issues presented to this Court are fully at issue and ripe for our disposition. FN3 III. PRELIMINARY CHALLENGES Before undertaking the due process and equal protection analyses at the heart of this matter, we must first entertain two preliminary, yet threshold, challenges to Plaintiffs' efforts to have the Marriage Laws declared unconstitutional. First, Defendants contend that pursuant to the Supreme Court's 1972 decision in Baker v. Nelson, there is no substantial federal question implicated by any of Plaintiffs' claims, and thus this Court lacks subject matter jur- isdiction to hear the case. Second, Defendants as- sert that Plaintiffs have failed to meet their burden of proof under 42 U.S.C. 1983 because they have not established a personal, cognizable harm caused by the enforcement of the Marriage Laws. We shall discuss each of these preliminary contentions seri- atim. A. Baker v. Nelson [1] Although we previously considered, and re- jected, Defendants' argument that we lack subject matter jurisdiction over this matter pursuant to the United States Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (dismissing for want of a sub- stantial federal question an appeal from a ruling by the Supreme Court of Minnesota that a state law ban on same-sex marriage did not violate the Due Process Clause of the United States Constitution), inasmuch as Defendants have reiterated this juris- dictional challenge, we shall repeat herein our reas- ons for rejecting this argument. *5 There is no dispute that the summary dis- missal in Baker is considered precedential, see Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (dismissal for lack of a substantial federal question is a decision on the merits), however we, and our sister district courts that have examined precisely this same issue, no longer consider Baker v. Nelson controlling due to the significant doctrinal developments in the four decades that have elapsed since it was announced by the Supreme Court. See id. ([I]f the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate other- wise[.]); Windsor v. United States, 699 F.3d 169, 17880 (2d Cir.2012); Geiger v. Kitzhaber, 131834, F.Supp.2d , 2014 WL 2054264, 2014 U.S. Dist LEXIS 68171 (D.Oregon May 19, 2014); Latta v. Otter, F.Supp.2d , , 2014 U.S. Dist. LEXIS 66417, at *2229, 2014 WL 1909999, at *710 (D.Idaho 2014); De- Page 13 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (498 of 518) Boer v. Snyder, 973 F.Supp.2d 757, 774, n. 6 (E.D.Mich.2014); De Leon v. Perry, 975 F.Supp.2d 632, , 2014 WL 715741, at *810 (W.D.Tex.2014); Bostic v. Rainey, 970 F.Supp.2d 456, 46970 (E.D.Va.2014); McGee v. Cole, F.Supp.2d , , 2014 WL 321122, at *810 (S.D.W.Va.2014); Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252, 127477 (N.D.Okla.2014); Kitchen v. Herbert, 961 F.Supp.2d 1181, 119495 (D.Utah 2013). As we previously explained: The jurisprudence of equal protection and sub- stantive due process has undergone what can only be characterized as a sea change since 1972. The Supreme Court has decided several cases since Baker which demonstrate that it no longer views constitutional challenges based on sex or sexual identity classifications as unsubstantial. For ex- ample, when Baker was decided, intermediate scrutiny was not yet in the Court's vernacular and classifications based on illegitimacy and sex were not yet deemed quasi-suspect. Windsor v. United States, 699 F.3d 169, 179 (2d Cir.2012) (citing Craig v. Boren, 429 U.S. 190, 218[, 97 S.Ct. 451, 50 L.Ed.2d 397] (1976) (Rehnquist, J., dissenting) (coining intermediate level scru- tiny); Lalli v. Lalli, 439 U.S. 259, 26465[, 99 S.Ct. 518, 58 L.Ed.2d 503] (1978) (applying in- termediate scrutiny to a classification based on il- legitimacy, and describing how heightened scru- tiny had been used for such classifications since 1976); Frontiero v. Richardson, 411 U.S. 677, 682[, 93 S.Ct. 1764, 36 L.Ed.2d 583] (1973) (plurality) (identifying sex as a suspect class)). The Supreme Court had also not yet ruled that a classification [based on sexuality] undertaken for its own sake lacked a rational basis. Romer v. Evans, 517 U.S. 620, 635[, 116 S.Ct. 1620, 134 L.Ed.2d 855] (1996). Further, in 1972, govern- ments could lawfully demean [homosexual per- sons'] existence or control their destiny by mak- ing their private sexual conduct a crime. Lawrence v. Texas, 539 U.S. 558, 578[, 123 S.Ct. 2472, 156 L.Ed.2d 508] (2003). Finally, in June of [2013], the Supreme Court held that a federal statute defining marriage as only between hetero- sexual couples violated the equal protection and due process rights of same-sex couples who had married in states where same-sex marriage is leg- ally recognized. See United States v. Windsor, 570 U.S. [, 133 S.Ct. 2675, 186 L.Ed.2d 808] (2013). *6 (Doc. 67, pp. 56). Defendants have presen- ted us with no compelling reason to part company with our previous determination, which has been resoundingly echoed by our sister district courts which have considered, and rejected, Baker's pre- cedential value in light of doctrinal developments in the areas of constitutional due process and equal protection. The only new component of Defendants' argu- ment is their contention that, in view of the Su- preme Court's recent decision to stay the District of Utah's order in Kitchen v. Herbert, the Supreme Court is bound to overturn the District of Utah's de- cision. FN4 See Herbert v. Kitchen, U.S. , 134 S.Ct. 893, 187 L.Ed.2d 699 (2014). Simply put, this constitutes nothing more than speculation on the part of Defendants. Accordingly, we do not agree with Defendants that this procedural order of the Supreme Court forecasts pending disapproval of the District of Utah's decision or its intention to re- affirm the precedential value of Baker. Based on the foregoing, we again reject the contention that Baker v. Nelson presents a jurisdic- tional bar to Plaintiffs' claims. B. Burden of Proof under 42 U.S.C. 1983 FN5 [2] Defendants contend that Plaintiffs have failed to meet their burden of proof with respect to their constitutional claims because they have offered no facts establishing that Defendants took an action against them or are likely to be involved in acts or omissions regarding the Marriage Laws that caused or is likely to cause Plaintiffs harm. De- fendants' argument focuses specifically on Page 14 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (499 of 518) Plaintiffs' alleged failure to assert a cognizable in- jury against them by virtue of enforcement of the Marriage Laws. In view of the reasoning and hold- ing in United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), this argument is easily rejected. Writing for the majority in Windsor, Justice Kennedy opined that discrimination caused by the non-recognition of same-sex couples' marriages impose[s] a disadvantage, a separate status, and so a stigma upon same-sex couples in the eyes of the state and the broader community. Id. at 2693. Not only are these stigmatizing harms cognizable, they are profoundly personal to Plaintiffs and all other gay and lesbian couples, married or not, who live within the Commonwealth of Pennsylvania and thus are subject to the Marriage Laws. Additionally, and as discussed in greater detail above, see discus- sion supra Part I.B., Plaintiffs suffer a multitude of daily harms, for instance, in the areas of child- rearing, healthcare, taxation, and end-of-life plan- ning. With the Plaintiffs' stories in mind, we easily find that Plaintiffs have sufficiently established that they suffer actionable harms, and Defendants' argu- ment to the contrary is rejected. IV. SUBSTANTIVE QUESTIONS Having resolved the preliminary challenges ad- vanced by Defendants against Plaintiffs' claims, we now turn to the substantive questions presented by Plaintiffs in this action. Specifically, those ques- tions are as follows: (1) whether the Marriage Laws violate Plaintiffs' due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution; and (2) whether the Marriage Laws violate Plaintiffs' rights to equal protection as guar- anteed by the Fourteenth Amendment to the United States Constitution. A. Due Process 1. Fundamental Right to Marry *7 [3] The Due Process Clause of the Four- teenth Amendment guarantees that all citizens have certain fundamental rights comprised within the term liberty [that] are protected by the Federal Con- stitution from invasion by the States. Planned Par- enthood v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quoting Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927)). The Supreme Court has de- scribed the individual's right to liberty as the right to define one's own concept of existence, of mean- ing, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed un- der compulsion of the State. Id. at 851, 112 S.Ct. 2791. [4] Encompassed within the right to liberty is the fundamental right to marry. See Maynard v. Hill, 125 U.S. 190, 205, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888) (characterizing marriage as the most important relation in life and the foundation of the family and of society, without which there would be neither civilization nor progress); see also Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) ([T]he right to marry is of fundamental importance for all indi- viduals.). The fundamental right to marry has been historically and repeatedly recognized by the Su- preme Court and was perhaps most eloquently de- scribed in the concluding lines of Griswold v. Con- necticut, We deal with a right of privacy older than the Bill of Rightsolder than our political parties, older than our school system. Marriage is a com- ing together for better or for worse, hopefully en- during, and intimate to the degree of being sac- red. 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 so- cial projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). [5] The parties to this action certainly do not dispute that the Due Process Clause of the Four- teenth Amendment guarantees individuals the fun- Page 15 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (500 of 518) damental right to marry. They stridently part com- pany, however, over whether the fundamental right to marry encompasses the right to marry a person of the same sex. Plaintiffs contend that the fundament- al right to marry belongs to the individual and pro- tects each individual's choice of whom to marry. In stark contrast, Defendants contend that, because [t]he United States Supreme Court has never re- cognized that the fundamental right to marry in- cludes the right to marry a person of one's choice, the Marriage Laws do not violate Plaintiffs' due process rights. (Doc. 117, p. 20) (emphasis in ori- ginal). Against this jurisprudential backdrop, and in view of the parties' polarized positions, we are tasked to consider and address the scope of the fun- damental right to marry. While the Supreme Court has cautioned that the Due Process Clause only protects those funda- mental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, ... and implicit in the concept of ordered liberty, Washington v. Glucksberg, 521 U.S. 702, 72021, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal citation and quotation marks ommitted), the Su- preme Court has clarified the boundaries of the fun- damental right to marry when tested by new societ- al norms. Perhaps the most classic example of such clarification is Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In Loving, the Supreme Court struck down Virginia's laws against interracial marriage, finding the state's anti- miscegenation statutes violative of both the Due Process and Equal Protection Clauses of the Four- teenth Amendment. The Supreme Court character- ized the right to marry as one that resides with the individual and cannot be infringed by the State. Id. at 12, 87 S.Ct. 1817. *8 In a retrospective discussion of Loving, the Supreme Court reaffirmed that its decision to find Virginia's anti-miscegenation statutes unconstitu- tional was entirely correct, despite a long historical tradition in this nation of prohibiting interracial couples from marrying. See Casey, 505 U.S. at 847848, 112 S.Ct. 2791; see also Bowers v. Hard- wick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Stevens, J., dissenting) ([N]either history nor tradition could save a law prohibiting miscegenation from constitutional at- tack.), overruled by Bowers, 478 U.S. 186, 106 S.Ct. 2841; Perry v. Schwarzenegger, 704 F.Supp.2d 921, 992 (N.D.Cal.2010) ([T]he Court recognized that race restrictions, despite their his- torical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.). Thereafter, in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court reaffirmed that the right to marry resides with the individual when it struck down a Missouri regu- lation that prohibited inmates from marrying unless the prison superintendent approved of the marriage. The Supreme Court held that inmates retained their fundamental right to marry even though they had a reduced expectation of liberty during incarceration and despite the fact that the marriage, at least ini- tially, would not result in procreation. See id. at 9596, 107 S.Ct. 2254. More recently, in Lawrence v. Texas, the Su- preme Court confirmed that gay and lesbian indi- viduals do not forfeit their constitutional liberties simply because of their sexual orientation, noting that our laws and tradition afford constitutional protection to personal decisions relating to mar- riage, procreation, contraception, family relation- ships, child rearing, and education. 539 U.S. at 574, 123 S.Ct. 2472. Emphasizing that these rights are personal to the individual, the Supreme Court stated that [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as het- erosexual persons do. Id. In June of last year, the Supreme Court determined that the federal DOMA's one man and one woman definition of marriage was an unconstitutional interference with the equal dignity of same-sex marriages legally re- cognized in some states. Windsor, 133 S.Ct. at 2693 . Page 16 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (501 of 518) [6][7] With the weight and impetus of the fore- going Supreme Court jurisprudence in mind, this Court is not only moved by the logic that the funda- mental right to marry is a personal right to be exer- cised by the individual, but also rejects Defendants' contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry. The right Plaintiffs seek to exercise is not a new right, but is rather a right that these individuals have always been guar- anteed by the United States Constitution. As aptly explained by the Supreme Court in Lawrence: Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Four- teenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution en- dures, persons in every generation can invoke its principles in their own search for greater free- dom. *9 539 U.S. at 57879, 123 S.Ct. 2472; see also Roberts v. U.S. Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ([T]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse....); Kitchen, 961 F.Supp.2d at 1203 (The Constitution is not so rigid that it always mandates the same outcome even when its principles operate on a new set of facts that were previously unknown [.]). Recognizing that [h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry, Lawrence, 539 U.S. at 572, 123 S.Ct. 2472 (citation and internal quotation marks omitted), we specific- ally hold that the fundamental right to marry as pro- tected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution en- compasses the right to marry a person of one's own sex. FN6 We further hold that this fundamental right is infringed upon by 23 Pa.C.S. 1102, which defines marriage as between one man and one wo- man and thus precludes same-sex marriage. Ac- cordingly, 23 Pa.C.S. 1102 is unconstitutional. 2. Marriage Recognition [8] Having reached the conclusion that same- sex marriage is included within the fundamental right to marry and is infringed upon by 23 Pa.C.S. 1102, it necessarily follows that 23 Pa.C.S. 1704, which refuses to recognize same-sex marriages val- idly performed in other jurisdictions, is also uncon- stitutional. Specifically, Pennsylvania's non- recognition law robs those of the Plaintiffs who are already married of their fundamental liberty interest in the legal recognition of their marriages in Pennsylvania. See De Leon, 975 F.Supp.2d at 662 ([B]y declaring existing, lawful same-sex mar- riages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process.); Obergefell v. Wymyslo, 962 F.Supp.2d 968, 979 (S.D.Ohio 2013) (When a state effectively terminates the marriage of a same-sex couple married in another jurisdic- tion, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court.); Henry, F.Supp.2d at , 2014 U.S. Dist. LEXIS 51211, at *29, 2014 WL 1418395, *910 (right to remain married is a fundamental liberty interest appropriately protected by the Due Process Clause); Baskin v. Bogan, F.Supp.2d , 2014 U.S. Dist. LEXIS 63421, 2014 WL 1814064 (S.D.Ind.2014); see also Wind- sor, 133 S.Ct. at 2694 (When one jurisdiction re- fuses recognition of family relationships legally es- tablished in another, [t]he differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify.). Accordingly, we de- clare that 23 Pa.C.S. 1704 violates the Due Pro- cess Clause of the United States Constitution and is therefore unconstitutional. B. Equal Protection Page 17 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (502 of 518) [9] Plaintiffs also advocate that the Marriage Laws violate the Equal Protection Clause of the Fourteenth Amendment. That provision forbids a state from denying to any person within its jurisdic- tion the equal protection of the laws, see U.S. CONST. amend. XIV, 1, effectively directing the like treatment of similarly-situated persons, see Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). *10 [10][11][12][13][14] Laws reviewed under the Equal Protection Clause are subject to various levels of scrutiny depending upon the classification imposed. See generally City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 43941, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Strict scrutiny is reserved for statutes engendering suspect classi- fications, such as those based on race, alienage, or national origin, and requires the government to demonstrate that the law is narrowly tailored to fur- ther compelling state interests. See id. at 440, 105 S.Ct. 3249; Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). Inter- mediate or heightened scrutiny has been applied to classifications deemed quasi-suspect, FN7 such as those based on sex or illegitimacy. See Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). To survive intermediate scru- tiny, a statutory classification must be substantially related to an important governmental objective. See Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). Lastly, for classifications that do not target suspect or quasi-suspect groups, courts apply rational-basis review, which is satis- fied if a statutory classification is rationally related to a legitimate governmental purpose. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Review for rationality is highly deferential to the legislature, and the burden rests with the challenger to negate every possible basis for the law. See id. FN8 As an initial matter, the parties disagree on the level of scrutiny applicable to classifications based on sexual orientation. Defendants argue for ration- al-basis review, while Plaintiffs would have us ap- ply heightened scrutiny. FN9 1. Heightened Scrutiny The Third Circuit has never discoursed on the appropriate level of scrutiny to be applied to classi- fications based on sexual orientation, nor has the Supreme Court rendered an explicit holding on that point. Thus, we must consider and determine whether gay and lesbian persons comprise a quasi- suspect class for purposes of an equal protection analysis of the Marriage Laws. While Windsor, the most recent apposite pronouncement by the Su- preme Court, offers little concrete guidance, we glean from it and other Supreme Court jurispru- dence that heightened scrutiny is, at minimum, not foreclosed. Indeed, in the tea leaves of Windsor and its forebears we apprehend the application of scru- tiny more exacting than deferential. As Justice Scalia cogently remarked in his dis- sent, if [Windsor] is meant to be an equal- protection opinion, it is a confusing one. Windsor, 133 S.Ct. at 2706 (Scalia, J., dissenting). Although Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not represent- ative of deferential review. See id. (Scalia, J., dis- senting) (observing that the Court certainly does not apply anything that resembles [the rational- basis] framework (emphasis omitted)). The Court did not evaluate hypothetical justifications for the law but rather focused on the harm resulting from DOMA, which is inharmonious with deferential re- view. See, e.g., McGowan v. State of Md., 366 U.S. 420, 42526, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) (explaining that, under rational-basis scrutiny, le- gislatures are presumed to have acted constitution- ally despite the fact that, in practice, their laws result in some inequality, and [a] statutory dis- crimination will not be set aside if any state of facts reasonably may be conceived to justify it). Indeed, far from affording the statute the presumption of validity, Windsor found DOMA unconstitutional Page 18 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (503 of 518) because no legitimate purpose overcomes the pur- pose and effect to disparage and to injure. Wind- sor, 133 S.Ct. at 2696 (emphasis added); see SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480, 483 (9th Cir.2014) (examining what the Court actually did in Windsor and con- cluding that the decision requires heightened scru- tiny) (citation and internal quotation marks omit- ted). *11 It has been observed that other of the Su- preme Court's equal protection cases purporting to apply deferential review have also, in practice, probed more deeply, especially where the subject group has suffered historic patterns of deprivation. See, e.g., Massachusetts v. U.S. Dept. of Health & Human Servs., 682 F.3d 1, 11 (1st Cir.2012) (The Court has ... undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review [in examining statutes targeting women, the poor, the mentally impaired, and gays and lesbians].). Notably, the Court's sexual orientation jurisprudence has gener- ally afforded considerably less deference than would be expected under usual rational-basis re- view. See generally Note, The Benefits of Unequal Protection, 126 HARV. L.REV.. 1348, 1362 (2013) (referencing Romer and Lawrence, and explaining that many commentators have characterized the scrutiny applied to sexual orientation classifications as rational basis with bite). Furthermore, a determination to apply heightened scrutiny to classifications standing on sexual orientation would be far from unpreceden- ted, as a number of federal and state courts have in- dicated that such scrutiny is warranted. FN10 Hence, we proceed to consider whether classi- fications based on sexual orientation qualify as quasi-suspect. a. Indicia of Suspectness FN11 [15] The Supreme Court has established certain criteria for evaluating whether a class qualifies as suspect or quasi-suspect, which query whether the group: (1) has been subjected to a history of pur- poseful unequal treatment, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam ); (2) possesses a characteristic that frequently bears no relation to ability to perform or contribute to society, Cleburne, 473 U.S. at 44041, 105 S.Ct. 3249; (3) exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group [,] Bowen v. Gilliard, 483 U.S. 587, 602, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987) (citation and internal quotation marks omitted); and (4) is a minority or politically powerless. Id. Of the four factors, the first two are most meaningful. See Windsor, 699 F.3d at 181 (Immutability and lack of political power are not strictly necessary factors to identify a suspect class.). The criteria function as a lodestar, and as Justice Thurgood Marshall effectually ob- served, [n]o single talisman can define those groups likely to be the target of classifications of- fensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experi- ence, not abstract logic, must be the primary guide. Cleburne, 473 U.S. at 472, 105 S.Ct. 3249 n. 24 (Marshall, J., concurring in part and dissent- ing in part). Defendants do not advance that sexual orienta- tion is mutable or bears a relation to ability to parti- cipate in society. Rather, they dispute only that gay and lesbian persons have suffered requisite historic- al discrimination and lack political power. Nonethe- less, we address each criterion in turn. i. History of Discrimination *12 [16] That the gay and lesbian community has endured historical discrimination at the national level is uncontested. In terms of government-sanc- tioned discrimination, in 1952, Congress prohibited gay men and women from entering the country or securing citizenship. (Doc. 1151, pp. 12930). In 1953, President Eisenhower issued an executive or- der banning the employment of homosexuals and requiring that private contractors currently employ- ing gay individuals search out and terminate them. ( Page 19 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (504 of 518) Id. p. 129). Although the ban on hiring gay employ- ees was lifted in 1975, federal agencies were free to discriminate against homosexuals in employment matters until President Clinton forbade the practice in 1998. (Id. p. 137). Beginning in World War II, the military developed systematic policies to ex- clude personnel on the basis of homosexuality, and, following the war, the Veterans Administration denied GI benefits to service members who had been discharged because of their sexuality. (Id. p. 128). Within our lifetime, gay people have been the targets of pervasive police harassment, including raids on bars, clubs, and private homes; portrayed by the press as perverts and child molesters; and victimized in horrific hate crimes. (E.g., id. pp. 12628, 13132, 141). Gay and lesbian persons have been prevented from adopting and serving as foster parents, and the majority of states prohibit same-sex marriage. (Id. pp. 139, 142). Perhaps most illustrative of the pervasive his- toric discrimination faced by gays and lesbians was the widespread and enduring criminalization of ho- mosexual conduct. Before the 1960s, all states pun- ished sexual intimacy between men, and, until the publish of Lawrence v. Texas in 2003, thirteen states categorized sodomy as a felony offense. (Id. p. 121). Our country's military continued to make sodomy a crime until 2013. (Id. p. 128). The nation's history of discrimination against gays and lesbians speaks for itself. What Defend- ants contest is a record of discrimination in Pennsylvania, which they appear to believe is re- quired for a finding of historical injustice. However, Defendants provide no authority direct- ing a narrowed geographic focus in discerning longstanding discrimination, and our review of Su- preme Court jurisprudence suggests no such con- straint. Cf., e.g., Murgia, 427 U.S. at 313, 96 S.Ct. 2562 (in assessing the constitutionality of a Mas- sachusetts mandatory retirement law, evaluating the treatment of the aged in this Nation). FN12 As an apparently alternative position, Defend- ants advocate taking a shorter view of national his- tory, focusing on the legal and social progress of the gay community in the past few decades to argue against a finding of historical discrimination. They highlight that many laws adversely targeting homo- sexuals have been repealed, a number of states have extended anti-discrimination protections to gay men and lesbians, and the media now depicts gay people more widely and positively. (Doc. 1151, pp. 122, 137, 139). We agree with Plaintiffs that [t]he fact that some forms of discrimination against gay people have ceased or become less prevalent does not change the fact that lesbian and gay people con- tinue to live with the legacy of a long history of dis- crimination that created and reinforced the belief that they are an inferior class. (Doc. 128, p. 6 (citing Doc. 1151, pp. 120, 378)); see Frontiero, 411 U.S. at 68586, 93 S.Ct. 1764 (applying heightened scrutiny to classifications based on sex even though the position of women in America has improved markedly in recent decades; observing that women still face pervasive, although at times more subtle, discrimination in the public sphere) (footnotes omitted). *13 In view of the protracted historical record of injustices against gay and lesbian persons in our country (inclusive of this Commonwealth), we find that this consideration points strongly toward the application of heightened scrutiny. ii. Relation to Ability [17] We need not linger on this criterion: it is axiomatic that sexual orientation has no relevance to a person's capabilities as a citizen. Accord Golin- ski, 824 F.Supp.2d at 986 ([T]here is no dispute in the record or the law that sexual orientation has no relevance to a person's ability to contribute to soci- ety.). FN13 Defendants' silence on this point speaks volumes, and either connotes candor, agree- ment with Plaintiffs, or both. This factor weighs heavily in favor of recognizing sexual orientation as a quasi-suspect class. iii. Distinguishing Characteristic Page 20 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (505 of 518) [18][19] Whether sexual orientation constitutes a sufficiently discernable characteristic is also little in debate and, for our purposes, undisputed by De- fendants. Briefly, although this factor is often phrased in terms of immutability, the test is broader, encompassing groups whose members can hide the distinguishing trait and where the charac- teristic is subject to change. See Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976) (observing that illegitimate children do not carry an obvious badge); Pedersen, 881 F.Supp.2d at 320 (noting that status as a resident alien or as illegitimate may be subject to change, yet that these classifications compel increased scru- tiny). Here, the characteristic in issue is so funda- mental to one's identity that a person should not be required to abandon [it]. HernandezMontiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir.2000), over- ruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005). This factor, too, indicates the appropriateness of heightened scrutiny. iv. Political Power [20][21] Lastly, we consider whether the sub- ject group lacks political power or is a minority. See Bowen, 483 U.S. at 602, 107 S.Ct. 3008. This consideration centers on relative political influence and inquires whether the discrimination is un- likely to be soon rectified by legislative means. Golinski, 824 F.Supp.2d at 987 (quoting Cleburne, 473 U.S. at 440, 105 S.Ct. 3249); see also San Ant- onio Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct. 1278 (to satisfy this factor, the class must be relegated to such a position of political powerless- ness as to command extraordinary protection from the majoritarian political process). While germane, this factor is not essential for recognition as a sus- pect or quasi-suspect class. See Cleburne, 473 U.S. at 472 n. 24, 105 S.Ct. 3249 (Marshall, J., concur- ring in part and dissenting in part) (The political powerlessness' of a group may be relevant, ... but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates.). [22] In our case, [t]he question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is wheth- er they have the strength to politically protect them- selves from wrongful discrimination. Windsor, 699 F.3d at 184. Defendants contend that the gay community does possess such force, centrally citing Sevcik v. Sandoval, 911 F.Supp.2d 996 (D.Nev.2012). In that case, a district court con- cluded that homosexuals possessed sufficient polit- ical power, noting cultural shifts toward acceptance of gay people, including the President's endorse- ment of same-sex marriage, and recent political successes, such as on marriage ballot initiatives at the state level. See id. at 1008, 1013. Defendants highlight that, at present, at least 17 bills have been introduced in Pennsylvania that would protect and benefit gay men and lesbians, four of which re- define marriage inclusively. *14 [23] While the gay rights movement has undoubtedly gained recognition as a vigorous force and has influenced public policy to some extent, there remains an absence of statutory, anti- discrimination protections which may indicate con- tinuing political weakness. See Obergefell, 962 F.Supp.2d at 989; Pedersen, 881 F.Supp.2d at 327. Today, in over half of states including Pennsylvania, gay and lesbian individuals lack statewide, statutory protections against discrimina- tion in housing and public accommodation, as well as in firing, refusal to hire, and demotion in private- sector employment. (Doc. 1151, p. 137). As to the proposed legislation in Pennsylvania, we find it of little assistance to our inquiry as there can be no as- surance that such bills will garner sufficient support for passage. Furthermore, some courts finding homosexuals to be politically powerless have taken guidance from the plurality in Frontiero, noting that women had achieved great political victories at the time of the decision but were nonetheless considered a quasi-suspect class. See, e.g., Pedersen, 881 Page 21 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (506 of 518) F.Supp.2d at 32829; Varnum, 763 N.W.2d at 894. Similar to the status of women in 1973, homosexu- als' position has improved markedly in recent dec- ades, but they still face pervasive, although at times more subtle, discrimination ... in the political arena. Frontiero, 411 U.S. at 68586, 93 S.Ct. 1764 (footnotes omitted); see Windsor, 699 F.3d at 184. This factor appears more equivocal than the others. However, in view of the general lack of stat- utory protections for homosexual persons, we per- ceive a weak positive in favor of heightened scru- tiny. [24] To summarize, we find that all four factors weigh in favor of a finding that gay and lesbian per- sons compose a class that is subject to heightened scrutiny. We agree with the Second Circuit, and the district court cases that followed it, that the class is quasi-suspectas opposed to suspectbased on the weight of the factors and on analogy to the clas- sifications recognized as suspect and quasi-sus- pect. Windsor, 699 F.3d at 185. Having concluded that classifications based on sexual orientation are quasi-suspect, we proceed to apply intermediate scrutiny to the Marriage Laws in consideration of their constitutionality. b. Application of Heightened Scrutiny [25] As stated, a statutory classification sur- vives intermediate scrutiny if it is substantially re- lated to an important governmental objective, with the party defending the statute carrying the burden to demonstrate the rationale. See Clark, 486 U.S. at 461, 108 S.Ct. 1910. The Supreme Court has also described the standard as demanding an exceedingly persuasive justification for the clas- sification. Miss. Univ. for Women, 458 U.S. at 724, 102 S.Ct. 3331 (citing Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981); Personnel Admin'r of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). Quasi-suspect classifications are subject to heightened review because the preeminent charac- teristic of the group generally provides no sensible ground for differential treatment. Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. *15 [26] In terms of state interests served by Pennsylvania's Marriage Laws, Defendants advance the following: the promotion of procreation, child- rearing and the well-being of children, tradition, and economic protection of Pennsylvania busi- nesses. Defendants appear to defend only the first two aims, stating that numerous federal and state courts have agreed that responsible procreation and child-rearing are legitimate state interests and providing extensive authority for that proposition. Significantly, Defendants claim only that the ob- jectives are legitimate, advancing no argument that the interests are important state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants ar- gue within the framework of deferential review and go no further. FN14 Indeed, it is unsurprising that Defendants muster no argument engaging the stric- tures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Mar- riage Laws from being invalidated under this more- searching standard. FN15 In sum, Defendants have failed to carry their burden, and we conclude that the classification im- posed by the Marriage Laws based on sexual orient- ation is not substantially related to an important governmental interest. Accordingly, we hold that the Marriage Laws violate the principles of equal protection and are therefore unconstitutional. V. CONCLUSION Based on the foregoing, we hold that Pennsylvania's Marriage Laws violate both the Due Process and Equal Protection Clauses of the Four- teenth Amendment to the United States Constitu- tion. Because these laws are unconstitutional, we shall enter an order permanently enjoining their en- forcement. By virtue of this ruling, same-sex Page 22 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (507 of 518) couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth. [27][28] The issue we resolve today is a divis- ive one. Some of our citizens are made deeply un- comfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitution- al. Nor can past tradition trump the bedrock consti- tutional guarantees of due process and equal protec- tion. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of separate but equal. See Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), overruling Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). In the sixty years Brown was decided, separate has thankfully faded into history, and only equal remains. Similarly, in future genera- tions the label same-sex marriage will be aban- doned, to be replaced simply by marriage. We are a better people than what these laws represent, and it is time to discard them into the ash heap of history. *16 An appropriate Order shall issue. ORDER In conformity with the Memorandum Opinion issued on today's date, it is hereby ORDERED that Plaintiffs' Motion for Summary Judgment (Doc. 113) is GRANTED and Defendants' Motion for Summary Judgment (Doc. 116) is DENIED. It is further ORDERED and DECLARED that Pennsylvania's Marriage Laws, 23 Pa.C.S. 1102 and 1704, which prohibit same-sex marriage and treat as void the marriages of same-sex couples val- idly entered into in other jurisdictions VIOLATE the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and are therefore UNCONSTITU- TIONAL. It is further ORDERED that the Defendants are PERMANENTLY ENJOINED from enforcing 23 Pa.C.S. 1102 and 1704. FN1. The facts regarding Plaintiffs' per- sonal backgrounds are derived from their Statement of Facts (Doc. 115) and personal declarations. (Docs. 115211514). FN2. We thank all counsel for their con- sistent collegiality, dedication to alacrity, and general professionalism exhibited throughout the course of this litigation. FN3. Federal Rule of Civil Procedure 56(a) provides that [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FN4. In Kitchen, the district judge held that Utah's prohibition on same-sex mar- riage conflicts with the guarantees of equal protection and due process under the Four- teenth Amendment to the United States Constitution. The district court reasoned that Utah's laws denied gay and lesbian cit- izens their fundamental right to marry and, in so doing, demeaned the dignity of these same-sex couples for no rational reason. See Kitchen, 961 F.Supp.2d 1181. FN5. 42 U.S.C. 1983 is an enabling stat- ute that provides individuals with access to remedies for violations of their federal constitutional or statutory rights. FN6. Several of our sister district courts have reached precisely this same conclu- sion in recently penned opinions. See Latta, F.Supp.2d , 2014 U.S. Dist. LEXIS 66417, 2014 WL 1909999; Henry v. Himes, No. 14129, F.Supp.2d , 2014 U.S. Dist. LEXIS 51211, 2014 WL 1418395 (S.D.Ohio April 14, 2014); Page 23 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (508 of 518) De Leon, 975 F.Supp.2d 632; Bostic, 970 F.Supp.2d 456; Kitchen, 961 F.Supp.2d 1181. FN7. We use the terms heightened scru- tiny and intermediate scrutiny inter- changeably to refer to the analysis applic- able to laws targeting quasi-suspect classes. FN8. An additional strand of equal protec- tion jurisprudence protects against the in- fringement of fundamental rights and ap- plies strict scrutiny where the government discriminates among people as to the exer- cise of such rights. See generally ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES & POLICIES 691 (4th ed.2011). Based on our discussion supra, determining that Plaintiffs have suffered a deprivation of their fundamental right to marry and be recognized as mar- ried, we conclude that strict scrutiny is ap- propriate under the fundamental rights strand of equal protection jurisprudence. However, we focus our attention on the more typical application of equal protec- tion principles, involving the constitution- ality of distinctions among classes. FN9. Specifically, Plaintiffs argue that, when evaluating statutes categorizing on the basis of sexual orientation, [t]his Court should apply at least the intermedi- ate scrutiny applied to quasi-suspect classi- fications .... (Doc. 114, p. 50). Interpret- ing that Plaintiffs' arguments largely ad- vocate for the application of intermediate scrutiny, rather than strict scrutiny, we, too, confine our analysis to the appropri- ateness of heightened scrutiny. As an additional, alternative argument, Plaintiffs also contend that the Marriage Laws impose sex-based classifications and, on this ground, are subject to inter- mediate scrutiny. We find this character- ization less compelling, observing, as a practical matter, that the intentional dis- crimination occurring in this case has nothing to do with gender-based preju- dice or stereotypes[.] Bishop, 962 F.Supp.2d at 1286; see In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 439 (2008) ([D]iscrimination on the basis of sex[ ] and discrimination on the basis of sexual orientation ... traditionally have been viewed as distinct phenomena.). FN10. See, e.g., SmithKline, 740 F.3d at 48384; Windsor, 699 F.3d at 185; Latta, F.Supp.2d at , 2014 U.S. Dist. LEXIS 66417, at *22, 2014 WL 1909999, at *7; Henry, F.Supp.2d at , 2014 U.S. Dist. LEXIS 51211, at *4651, 2014 WL 1418395, at *1517; De Leon, 975 F.Supp.2d at , 2014 WL 715741, at *1314, 2014 U.S. Dist. LEXIS 26236, at *39; Obergefell, 962 F.Supp.2d at 991; Golinski v. U.S. Office of Personnel Mgmt., 824 F.Supp.2d 968, 98990 (N.D.Cal.2012); Pedersen v. Office of Per- sonnel Mgmt., 881 F.Supp.2d 294, 333 (D.Conn.2012); Perry, 704 F.Supp.2d at 997; In re Balas, 449 B.R. 567, 575 (Bankr.C.D.Cal.2011) (decision of 20 Bankruptcy Judges); Varnum v. Brien, 763 N.W.2d 862, 89596 (Iowa 2009); In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 444; Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 957 A.2d 407, 47576 (2008). FN11. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (coining indicia of suspectness). FN12. To address the merits of Defend- ants' concern, however, we pause to note that Pennsylvania's treatment of homo- Page 24 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (509 of 518) sexuals also evidences long-term discrim- ination. For example, in the 1950s, the Philadelphia police formed a morals squad, arresting some 200 gay men per month. (Doc. 1151, p. 132). In 1986, a Pennsylvania appellate court upheld an or- der heavily restricting a father's custody rights based on his sexuality, endorsing that his daughters were innocent and im- pressionable and that exposure to his ho- mosexual relationship would inevitably result in emotional disturbance, perhaps severe. (Id. pp. 13536) (citing Pas- carella v. Pascarella, 355 Pa.Super. 5, 512 A.2d 715 (1986)). Also, state legislators have sponsored bills in every session since 2006 proposing to amend the Constitution to enshrine the definition of marriage as between one man and one woman. (Id. p. 144). During debate, elected officials re- marked that failing to exclude same-sex couples from marriage could lead to the legalization of incest and bestiality, and one senator called homosexual relation- ships dysfunctional, comparing same-sex marriage to pedophilia. (Id. p. 145). Fur- ther, as discussed infra, Pennsylvania lacks statutory anti-discrimination legislation protecting gay and lesbian persons, thereby permitting discrimination, e.g., in the work place, housing, and public accommodation. See discussion infra Part IV.B.1.a.iv. In view of this recitation, we would not find that Pennsylvania lacks a history of dis- crimination toward gay people. FN13. See also Pedersen, 881 F.Supp.2d at 320 (Sexual orientation is not a distin- guishing characteristic like mental retarda- tion or age which undeniably impacts an individual's capacity and ability to contrib- ute to society. Instead like sex, race, or il- legitimacy, homosexuals have been subjec- ted to unique disabilities on the basis of stereotyped characteristics not truly indic- ative of their abilities.); Varnum, 763 N.W.2d at 890 (Not surprisingly, none of the same-sex marriage decisions from oth- er state courts around the nation have found a person's sexual orientation to be indicative of the person's general ability to contribute to society. (footnote omitted)). FN14. Amicus, a group of current and former Pennsylvania legislators, submitted a brief also arguing that rational basis re- view is satisfied here. Accordingly, their assertions do not aid our examination un- der heightened scrutiny. FN15. Parenthetically, a number of courts considering the constitutionality of com- parable state marriage laws, underpinned by state interests not dissimilar to those forwarded here, have concluded that those laws cannot withstand even rational-basis review. See, e.g., Geiger, F.Supp.2d , 2014 WL 2054264, 2014 U.S. Dist. LEXIS 68171; DeBoer, 973 F.Supp.2d at , 2014 WL 1100794, at *11, 2014 U.S. Dist. LEXIS 37274, at *33; Bourke, 2014 U.S. Dist. LEXIS 17457, at *32; Bishop, 962 F.Supp.2d at 1295; Kitchen, 961 F.Supp.2d at 1206. M.D.Pa.,2014. Whitewood v. Wolf --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) END OF DOCUMENT Page 25 --- F.Supp.2d ----, 2014 WL 2058105 (M.D.Pa.) (Cite as: 2014 WL 2058105 (M.D.Pa.)) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (510 of 518) Wright v. State, 2014 WL 1908815 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 1908815 (Ark.Cir.) (Trial Order) Circuit Court of Arkansas. Second Division Pulaski County M. Kendall WRIGHT, et al. v. STATE of Arkansas, et al. No. 60CV-13-2662. May 9, 2014. Order Granting Summary Judgment in favor of the Plaintiffs and Finding Act 144 of 1997 and Amendment 83 Unconstitutional Christopher Charles Piazza, Judge. *1 This case involves twelve same-sex couples who seek to marry in Arkansas and eight same-sex couples who have married in states that permit marriage between same-sex couples and seek to have their marriages recognized in Arkansas. There are two state laws at issue in this matter which expressly prohibit such recognition-Act 144 of 1997 of the Arkansas General Assembly and Amendment 83 to the Arkansas Constitution. Act 144 states that a marriage shall be only between a man and a woman. A marriage between persons of the same sex is void. Ark. ACT 144 of 1997, 1 (codified at Ark. Code Ann. 9-11-109). The Act further provides that a marriage which would be valid by the laws of the state or country entered into by a person of the same sex is void in Arkansas. Id. at 2 (codified at Ark. Code Ann. 9-11-107). Amendment 83, which was approved by a majority of voters in a general election on November 2, 2004, states: 1. Marriage Marriage consists of only the union of one man and one woman 2. Marital Status Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman. 3. Capacity, rights, obligations, privileges and immunities The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage. The plaintiffs contend that these prohibitions infringe upon their due process and equal protection rights under the Fourteenth Amendment of the United States Constitution and Article 2, 3 of the Arkansas Constitution's Declaration of Rights. The State of Arkansas defends that it has the right to define marriage according to the judgment of its citizens through legislative and constitutional acts. Both parties have submitted motions for summary judgment. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (511 of 518) Wright v. State, 2014 WL 1908815 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 The Equal Protection Clause forbids a state from denying to any person within its jurisdiction the equal protection of the laws, U.S. Const, amend. XIV, 1, and promotes the ideal that all persons similarly situated should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). However, states are empowered to perform many of the vital functions of modern government, Nat'l Fed'n of Indep. Bus. v. Sebelius, U.S. , 132 S.Ct. 2566, 2578 (2012), which necessarily involves adopting regulations which distinguish between certain groups within society. See Romer v. Evans, 517 U.S. 620, 631 (1996). Therefore, all courts must balance equal protection principles with the practical purposes of government when reviewing constitutional challenges to state laws. The United States Supreme Court has outlined three categories for analyzing equal protection challenges. The most rigorous is referred to as strict scrutiny, which is reserved for laws that interfere with the exercise of a fundamental right or discriminate against suspect classes. See Plyler v. Doe, 457 U.S. 202, 216-217 (1982). A more relaxed standard of review is intermediate or heightened scrutiny, which courts have applied to laws that discriminate against groups on the basis of gender, alienage or illegitimacy (also referred to as quasi-suspect classes). See Clark v. Jeter, 486 U.S. 456, 461 (1988); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723-724 (1982). When the law does not interfere with a fundamental right or the rights of a suspect or quasi-suspect class, rational basis review applies. Here, the Arkansas marriage laws implicate both a fundamental right and the rights of a suspect or quasi-suspect class. *2 Although marriage is not expressly identified as a fundamental right in the Constitution, the United States Supreme Court has repeatedly recognized it as such. 1 It has also consistently applied heightened scrutiny to laws that discriminate against groups considered to be a suspect or quasi-suspect classification. Mass. Bd. of Ret. v. Murgia, 421 U.S. 307, 313 (1976) (a group that has experienced a history of purposeful unequal treatment or [has] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.). Courts consider whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society, Cleburne, 473 U.S. at 440-41; whether the distinguishing characteristic is immutable or beyond the group member's control, Lyng v. Castillo, 477 U.S. 635, 638 (1986); and whether the group is a minority or politically powerless, Bowen v. Gilliard, 483 U.S. 587, 602 (1987). On this issue, this Court finds the rationale of De Leon v. Perry, Obergefell v. Wymyslo, and the extensive authority cited in both cases to be highly persuasive, leading to the undeniable conclusion that same-sex couples fulfill all four factors to be considered a suspect or quasi-suspect classification. See respectively, SA-13-CA-00982-OLG, 2014 WL 715741, *12 (W.D. Tex. Feb. 26, 2014) and 962 F. Supp.2d 968, 987-88 (S.D. Ohio 2013) (internal citations omitted). Therefore, at a minimum, heightened scrutiny must be applied to this Court's review of the Arkansas marriage laws. 1 See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting 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 ); Planned Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833, 848 (1992) (finding marriage to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause); 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 burdened their right to marry); Zablocki v. Redhail, 434 U.S. 374, 383-84 (1978) (defining marriage as a right of liberty); Carey v. Population Servs. Int'l, 431 U.S. 678, 684-85 (1977) (finding that the right to privacy includes personal decisions relating to marriage); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding that the Court has come to regard [marriage] as fundamental); Boddie, 401 U.S. at 376 (defining marriage as a basic importance in our society); Loving v. Virgina, 388 U.S. 1, 12 (Marriage is one of the basic civil rights of man, fundamental to our existence and survival (quoting Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535 541 (1942)); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (defining marriage as a right of privacy and a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred); 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) (the right to marry is a central part of Due Process liberty); Andrews v. Andrews, 188 U.S. 14, 30 (1903) (quoting Maynard v. Hill, 125 U.S. 190, 205 (1888)) (finding marriage to be most important relation in life), abrogated on other grounds, Sherrer v. Sherrer, 334 U.S. 343, 352 (1948); Maynard, 125 U.S. at 205 (marriage creates the most important relation in life)(same). Regardless of the level of review required, Arkansas's marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (512 of 518) Wright v. State, 2014 WL 1908815 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 a rational basis review. Under this standard, the laws must proscribe conduct in a manner that is rationally related to the achievement of a legitimate governmental purpose. See Vance v. Bradley, 440 U.S. 93, 97 (1979). [S]ome objectives ... are not legitimate state interests and, even when a law is justified by an ostensibly legitimate purpose, [t]he 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 446-47. *3 At the most basic level, by requiring that classifications be justified by an independent and legitimate purpose, the Equal Protection Clause prohibits classifications from being drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633; see also United States v. Windsor, 570 U.S. -, 133 S.Ct. 2675 (2013); Cleburne, 473 U.S. at 450; Rational basis review is a deferential standard, but it is not a toothless one. Mathews v. Lucas, 427 U.S. 495, 510 (1976). The Supreme Court invoked this principle most recently in Windsor when it held that the principal provision of the federal Defense of Marriage Act (DOMA) violated equal protection guarantees because the purpose and practical effect of the law ... [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages. Windsor, 570 U.S. -, 133 S.Ct. at 2693. The case at bar and many around the country have since challenged state laws that ban same- sex marriage as a result of that decision. See e.g., De Leon, 2014 WL 715741; Lee v. Orr, No. 13-cv-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014); Bostic v. Rainey, 970 F. Supp.2d 456 (E.D. Va. Feb. 13, 2014); Bourke, F.Supp.2d, 2014 WL 556729 (W.D. Ky. Mar. 19, 2013); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2014); Obergefell, 962 F. Supp.2d 968; Kitchen v. Herbert, 961 F.Supp.2d 1181 (CD. Utah 2013). Edith Windsor and Thea Spyer were a same-sex couple that married in Canada and lived in New York, a state that recognizes same-sex marriages. When Spyer died, Windsor attempted to claim the estate tax exemption, but DOMA prevented her from doing so, and she filed suit to obtain a $363,053 tax refund from the federal government. In the Windsor opinion, Justice Kennedy explained how the strict labels placed upon the definition of a marriage have begun to evolve: It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in a lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who have long held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Id. at 2689. He further points out how this restriction on marriage impacts not only the individuals involved but also their families: This places same-sex couples in an unstable position of being in a second tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Id. at 2694 (citation omitted). The Court concluded that this impact deprived a person of liberty protected by the Fifth Amendment and held that DOMA is unconstitutional. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (513 of 518) Wright v. State, 2014 WL 1908815 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 *4 While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. Id. at 2695. Since Windsor, a Virginia federal district court has considered the constitutionality of the Virginia law that banned same-sex marriages and found that the laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Bostic, 970 F. Supp. 2d at 482. The court explained, Justice has often been forged from fires of indignities and prejudices suffered. Our triumphs that celebrate the freedom of choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect. Id at 483-484. The Bostic opinion includes a statement made by Mildred Loving on the fortieth anniversary of Loving v. Virginia, 388 U.S. 1 (1967). Her statement further demonstrates how definitions and concepts of marriage can change and evolve with time: We made a commitment to each other in our love and loves, and now had the legal commitment, called marriage, to match. Isn't that what marriage is? ... I have lived long enough now to see big changes. The older generations' fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the wrong kind of person for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others... I support the freedom to marry for all. That's what Loving, and loving, are all about. Id at 1 (quoting Mildred Loving, Loving for All). In Kitchen v. Herbert, a Utah federal district court also held that its state's constitutional ban of same-sex marriage violated plaintiffs' federal due process and equal protection rights. 961 F.Supp.2d at 1216. The Court explained: Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs' desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse. *5 Id. at 1215-1216. The defendants offer several rationalizations for the disparate treatment of same-sex couples such as the basic premise of the referendum process, procreation, that denying marriage protections to same-sex couples and their families is justified in the name of protecting children, and continuity of the laws and tradition. None of these reasons provide a rational basis for adopting the amendment. The state defendants contend that this court must follow the last pronouncement by Arkansas voters, as long as the ban does not violate a fundamental right of the United States Constitution. They argue that the Arkansas Constitution can be amended by the people, and three out of four voters in the 2004 general election said that same-sex couples cannot marry. This position is unsuccessful from both a federal and state constitution perspective. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (514 of 518) Wright v. State, 2014 WL 1908815 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 5 Article 2, 2 of the Arkansas Constitution guarantees Arkansans certain inherent and inalienable rights, including the enjoyment of life and liberty and the pursuit of happiness. All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing, and protecting property, and reputation; and of pursuing their own happiness, To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed. ARK. CONST., art 2, 2. In this case, Article 2 2 was left intact by the voters, but in Amendment 83 they singled out same-sex couples for the purpose of disparate treatment. This is an unconstitutional attempt to narrow the definition of equality. The exclusion of a minority for no rational reason is a dangerous precedent. Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny as to federal rights. The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual's fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Id. at 638. Defendants also cite Donaldson v. State, 367 Mont. 228 (2012), for the proposition that procreation can be a legitimate rational basis for the upholding of a ban on same-sex marriages. The replication, by children, of the procreative marital relationship as role-modeled by their married parents not only perpetuates the race-sustaining function by populating the race, but also builds extended families which share hereditary characteristics of a common gene pool. Id at 237. In a 1955 decision, the Supreme Court of Appeals of Virginia accepted the state's legitimate purposes to preserve the racial integrity of its citizens, to prevent the corruption of blood, a mongrel breed of citizens and the obliteration of racial pride. Nairn v. Nairn, 197 Va. 80, 90 (1955). In a comparison of Donaldson to Nairn, the state's purposes sound eerily similar. *6 Procreation is not a prerequisite in Arkansas for a marriage license. Opposite-sex couples may choose not to have children or they may be infertile, and certainly we are beyond trying to protect the gene pool. A marriage license is a civil document and is not, nor can it be, based upon any particular faith. Same-sex couples are a morally disliked minority and the constitutional amendment to ban same-sex marriages is driven by animus rather than a rational basis. This violates the United States Constitution. Even if it were rational for the state to speculate that children raised by opposite-sex couples are better off than children raised by same-sex couples, there is no rational relationship between the Arkansas same-sex marriage bans and the this goal because Arkansas's marriage laws do not prevent same-sex couples from having children. The only effect the bans have on children is harming those children of same-sex couples who are denied the protection and stability of parents who are legally married. The defendants also argue that Windsor is a federalism issue and claim the states have the authority to regulate marriage as a matter of history and tradition, and that DOMA interfered with New York's law allowing same-sex marriage. The state defendant points to Baker v. Nelson, as precedent for upholding the application of Amendment 83 to the Arkansas Constitution. 191 Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (515 of 518) Wright v. State, 2014 WL 1908815 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 N.W.2d 185 (1971). In that case, the United States Supreme Court dismissed an appeal from the Minnesota Supreme Court for lack of a substantial federal question. 409 U.S. 810 (1972). While a summary disposition is considered precedential, the courts that have considered this issue since Windsor, supra., have found that doctrinal developments render the decision in Baker no longer binding. Bostic, 970 F. Supp. 2d at 469. Tradition alone cannot form a rational basis for a law. Heller v. Doe, 509 U.S. 312, 326 (1993) (stating that the [a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.). The fact that a particular discrimination has been traditional is even more of a reason to be skeptical of its rationality. The Court must be especially vigilant in evaluating the rationality of any classification involving a group that has been subjected to a tradition of disfavor for a traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification. Cleburne, 473 U.S. at 454 n. 6 (Stevens, J., concurring). Just as the tradition of banning interracial marriage represented the embodiment of deeply-held prejudice and long-term racial discrimination in Loving, 388 U.S. at 1, the same is true here with regard to Arkansas's same-sex marriage bans and discrimination based on sexual orientation. The traditional view of marriage has in the past included certain views about race and gender roles that were insufficient to uphold laws based on these views. See Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) ([N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack) (citation omitted). And, as Justice Scalia has noted in dissent, preserving the traditional institution of marriage is just a kinder way of describing the State's moral disapproval of same- sex couples. Lawrence, 539 U.S. at 601 (Scalia, J., dissenting). Defendants contend that the Eighth Circuit decision in Citizens for Equal Protection v. Bruning, 455 F. 3 rd 859 (2006) is dispositive of this issue because it upheld a Nebraska constitutional ban on same-sex marriage. However, both the Donaldson and Bruning decisions predate Windsor where the United States Supreme Court held: *7 DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure these whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. Windsor at 2696 (emphasis added). The state defendant attempts to distinguish Windsor by claiming that DOMA is related only to states that have allowed same- sex marriages. However: The Constitution's guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. Dep't of Agriculture v. Moreno, 413 U.S. 528, 534-535 (1973). The issues presented in the case at bar are of epic constitutional dimensions-the charge is to reconcile the ancient view of marriage as between one man and one woman, held by most citizens of this and many other states, against a small, politically unpopular group of same-sex couples who seek to be afforded that same right to marry. Attempting to find a legal label for what transpired in Windsor is difficult but as United States District Judge Terence C. Kern wrote in Bishop v. United States, this court knows a rhetorical shift when it sees one. Judge Kern applied deferential rational review and found no rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. 962 F. Supp. 2d 1252, 1296 (2014). Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (516 of 518) Wright v. State, 2014 WL 1908815 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 The strength of our nation is in our freedom which includes, among others, freedom of expression, freedom of religion, the right to marry, the right to bear arms, the right to be free of unreasonable searches and seizures, the right of privacy, the right of due process and equal protection, and the right to vote regardless of race or sex. The court is not unmindful of the criticism that judges should not be super legislators. However, the issue at hand is the fundamental right to marry being denied to an unpopular minority. Our judiciary has failed such groups in the past. In Dred Scott v. John Sandford, Chief Justice Taney narrowed this issue by contemplating when and if a person can attain certain fundamental rights and freedoms that were not originally granted to that individual or group of individuals. 60 U.S. 393 (1856). Scott, a slave whose ancestors were brought to America on a slave ship, attempted to file a case in federal court to protect his wife and children. In the majority opinion, Chief Justice Taney pondered: The question is simply this: Can a negro, whose ancestors were imported in to this country, and sold as slaves, become a member of the political community formed and brought into existence by the constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution. Id. at 403. The Court majority in 1856 relied on a strict interpretation of the intent of the drafters to come to their decision. We think they are not, and that they are not included, and were not intended to be included, under the word citizens in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, there were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. *8 Id. at 404-405. One hundred years later, in Loving, the Supreme Court was still struggling with race in a miscegenation statute from the state of Virginia where interracial marriages were considered a criminal violation. The Lovings were convicted and sentenced to one year in jail suspended for twenty-five years on the condition that they leave the state for twenty-five years. 388 U.S. at 1. The trial judge stated in his opinion that: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages, The fact that he separated the races shows that he did not intend for the races to mix. Id. at 2 (citation omitted). The U.S. Supreme Court disagreed with the trial court and in their opinion, Chief Justice Warren stated that 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. Id. at 12. Our freedoms are often acquired slowly, but our country has evolved as a beacon of liberty in what is sometimes a dark world. These freedoms include a right to privacy. The United States Supreme Court observed: Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (517 of 518) Wright v. State, 2014 WL 1908815 (2014) 2014 Thomson Reuters. No claim to original U.S. Government Works. 8 We deal with a right of privacy older than the BILL OF RIGHTS-older than our political parties, older than our school system. Marriage is a coming together for the better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Griswold v. Connecticut, 381 U.S. 479, 486 (1965). The Arkansas Supreme Court has previously addressed the right to privacy as it involves same-sex couples. In Jegley v. Picado, the Arkansas Supreme Court struck down the sodomy statute as unconstitutional in violating Article 2, 2 and the right to privacy. 349 Ark. 600, 638 (2002). Justice Brown, in Arkansas Dep't of Human Services v. Cole, noted that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution. 2011 Ark. 145, 380 S.W. 3d. 429, 435 (2011) (citing Jegley, id. at 632). The Arkansas Supreme Court applied a heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex couples from adopting children. Id at 442. The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex families is within the privacy of their homes. THEREFORE, THIS COURT HEREBY FINDS the Arkansas constitutional and legislative ban on same-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional. *9 It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it. IT IS SO ORDERED this 9th day of May, 2014 <<signature>> CHRISTOPHER CHARLES PIAZZA CIRCUIT COURT JUDGE End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works. Case: 14-2386 Document: 110-2 Filed: 07/29/2014 Pages: 260 (518 of 518)
The Seven Principles for Making Marriage Work: A Practical Guide from the Country's Foremost Relationship Expert by John Gottman PhD | Conversation Starters