Case 3:13-cv-00750-JGH Document 1 Filed 07/26/13 Page 1 of 19 PageID #: 153

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE NO.__3__:_1_3_-_c__v_-_0_0_7__50-JGH

)

GREGORY BOURKE and MICHAEL )

DELEON, and I.D. AND I.D., minor )

children, by and through their

)

parents and next friends, GREGORY

)

BOURKE and MICHAEL DELEON

)

)

Plaintiffs )

)

vs.

)

)

STEVE BRESHEAR, in his official

)

capacity as Governor of Kentucky;

)

and JACK CONWAY, in his official

)

capacity as Attorney General of

)

Kentucky; and BOBBIE HOLSCLAW in )

her official capacity as

)

Jefferson County Clerk

)

)

Defendants )

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1. Plaintiffs bring this action to challenge the constitutionality of Kentucky’s laws excluding same-sex couples from marriage and voiding within the State of Kentucky the marriages of same-sex couples entered in other states or countries. KRS 402.040(2)
2. Plaintiffs Gregory Bourke and Michael Deleon are already married, having wed in Ontario Canada. Kentucky does not recognize same-sex marriages. The Plaintiffs are treated as legal strangers in their home state of Kentucky.
3. Plaintiffs I.D. and I.D. are children of the Plaintiffs, Gregory Bourke and Michael Deleon. The fact that their parents’ marriage is not recognized in Kentucky harms them materially by reducing family resources and stigmatizes them by denying their family social recognition and respect.
4. The Plaintiffs all reside in Louisville and are active members of the Catholic Church. The adult Plaintiffs work as an application consultant and database administrator and have been employed as such for 19 years and 25 years respectively. They have been together for thirty one years, having met as students at the University of Kentucky. They have been raising children together for over a decade. The situations faced by the adult Plaintiffs are similar to those faced by thousands of same-sex couples in Kentucky who are being denied the basic rights that are afforded to them by marriage.
5. The Plaintiff couple, like other committed couples, have cared for each other, supported each other, sacrificed for each other, and made plans for the future with each other. Like other couples who have made a lifetime commitment to each other, the Plaintiff couple are spouses in every sense, except that Kentucky law says even though they are married in another jurisdiction, their marriage is not honored here in Kentucky.
6. As the Plaintiff couple’s marriage is not recognized by the state, when they adopted the minor Plaintiffs, they were only able to have one parent listed as the adoptive parent, and the other parent had to go to court to acquire guardianship papers for his own children so that he could be their legal guardian, but not their legal parent. This is just one example of how the Commonwealth materially impacts the Plaintiff children’s lives.

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7. The Commonwealth’s exclusion of same-sex couples from recognition of their marriages adversely impacts the Plaintiffs and same-sex couples across the Commonwealth in other significant ways. It excludes them from the many legal protections available to spouses. For example, when one spouse dies, the surviving spouse may face serious financial hardship, including the loss of the family house, because he is denied the inheritance tax exemption provided to surviving spouses. Due to Kentucky’s refusal to allow or to recognize their marriages, same-sex couples are also denied many federal protections afforded to other married couples such as the ability to take time off work to care for a sick spouse under the Family Medical Leave Act and access to a spouse’s social security retirement benefits.
8. The exclusion from marriage undermines the Plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18 (U.S. June 26, 2013). Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells [same-sex couples and all the world - that their relationships are unworthy" of recognition. Id. at 2223. And it "humiliates the ...children now being raised by same-sex couples" and "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 23.
9. The adult Plaintiffs are old enough to remember when a majority of states had laws prohibiting marriage between people of different races and when the Supreme Court struck down such prohibitions in Loving v. Virginia, 388 U.S. 1, 12 (1967), declaring: "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."
10. Our courts and our society have discarded, one by one, marriage laws that violated the Constitution's mandate of equality, such as anti-miscegenation laws and laws that denied married women legal independence and the right to make decisions for themselves. History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution. Ending the exclusion of lesbian and gay couples

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from marriage is no different. Indeed, in 13 states and the District of Columbia, same-sex couples are marrying and the institution of marriage continues to thrive. 11. This is because, at its heart, marriage is both a personal and a public commitment of two people to one another, licensed by the state. Through marriage, the Commonwealth recognizes a couple's decision to establish a family unit together and support one another and any children of the marriage. 12. Marriage contributes to the happiness of countless couples and their families and also contributes to society. Kentucky, like other states, encourages and regulates marriage through hundreds of laws that provide benefits to and impose obligations on married couples. In exchange, the Commonwealth receives the well-established benefits that marriage brings: stable, supportive families that contribute to both the social and economic well-being of the Commonwealth. 13. Kentucky's exclusion of same-sex couples from marriage infringes on the Due Process and the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. But it cannot stand under any level of scrutiny because the exclusion does not rationally further any legitimate government interest. It serves only to disparage and injure lesbian and gay couples and their families. 14. Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief against Defendants. Specifically, Plaintiffs seek: (a) a declaration that the Commonwealth's prohibition of marriage for same-sex couples and its refusal to recognize marriages of same-sex couples validly entered into outside of the Commonwealth violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (b) a permanent injunction i) preventing Defendants from denying the Plaintiff couple and all other same-sex couples otherwise eligible to marry, the right to marry in the Commonwealth of Kentucky, and ii) directing Defendants to recognize the marriages of the Plaintiff couple and other same-sex couples validly entered into outside of Kentucky. 15. The Plaintiffs were legally married in another jurisdiction and their marriage should be recognized in Kentucky even if at the time of their marriage, it would not have been

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allowed in Kentucky. For example, Kentucky does not allow marriage by proxy, as Oklahoma does, but does not specifically void a marriage by proxy once it is legally performed in Oklahoma. If it did, it would be specifically listed in that statute, just as first cousin marriages are not only not performed here but are voided here, even when legal in the state they were performed in. This means that but for their gender, the Plaintiffs’ marriage would be recognized which is a violation of the Equal Protection Clause of the 14th Amendment.
THE PARTIES 16. Plaintiffs Gregory Bourke (“Greg”) and Michel DeLeon (“Michael”) have been together
for 31 years and have lived together for 31 years and live in Louisville, Jefferson County Kentucky. Greg is a 55 year old Applications Consultant at Humana and Michael is a 55 year old Database Administrator at General Electric. They have been together since they were students at the University of Kentucky. 17. Greg and Michael have two children, Plaintiff I.D., who is a 14 year old girl and Plaintiff I.D. who is a 15 year old boy. Both of the minor Plaintiffs were adopted by Michael as they could not be legally adopted by both of their parents as the marriage was not recognized by this Commonwealth. Greg then went to court to be designated the children’s legal guardian, but not their parent as this Commonwealth does not recognize a same-sex marriage. 18. Greg and Michael are involved at the children’s school, church and extra-curricular activities. Greg and Michael are active with I.D.’s boyscout troop and I.D.’s basketball team. 19. Greg and Michael are devout Catholics and they, as their children are members of and actively involved with their church. 20. Greg and Micheal were married in Ontario Canada, as same-sex unions were not possible in the Commonwealth on March 29, 2004. 21. Greg and Michael would like to have their marriage recognized in the Commonwealth of Kentucky in order to have the same legal protections opposite-sex married couples are

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afforded in the Commonwealth. They are unsure of how they might be treated in a time of crisis and therefore had a lawyer draw up powers of attorney for them. 22. In addition, even though they now have the option for same-sec partner health insurance through both of their employers, they would have to pay to add their spouse, but a similar situated opposite-sex married couple would not have to pay to add their spouse on their employers’ health insurance plans. 23. Moreover, when either Greg or Michael dies; they will have to pay an inheritance tax at a much higher rate than they would if their marriage was recognized by the Commonwealth. 24. Greg and Michael want their marriage recognized by the Commonwealth because they are concerned their children are being taught that the Commonwealth values their family less and is less deserving of respect and support than other families. 25. I.D. and I.D.grew up knowing that their parents are married. As they got older and came to learn that their parents marriage is not recognized in the Commonwealth, both children felt that this was unfair to the whole family. They know they are a family and want to be legally recognized as one. They believe they should not be deprived of economic resources available to families headed by opposite-sex married couples. And they feel stigmatized by the fact that their parents are excluded from marriage. They believe that allowing their parents to marry would demonstrate that society accepts their family and considers it worthy of respect.
DEFENDANTS 26. Defendant STEVE BRESHEAR is the Governor of the Commonwealth of Kentucky. In
his official capacity, he is the chief executive officer of the Commonwealth and is responsible for the faithful execution of the laws of the Commonwealth of Kentucky,
including the laws that exclude same-sex couples from marrying or having their marriages recognized KRS 402.045(1) and the Kentucky Constitution, Section 233A. 27. Defendant JACK CONWAY is the Attorney General of the Commonwealth of Kentucky. He is sued in his official capacity pursuant to the KRS 15.020. 28. Defendant BOBBI HOLSCLAW is the Jefferson County Clerk of the Commonwealth of Kentucky. She is being sued in her official capacity as such overseas the issuing of

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marriage licenses and the enforcement of the regulations surrounding said licenses. She is being sued in her official capacity. She is responsible for preparing and approving the marriage license application and marriage license forms used in county offices across the Commonwealth. 29. All Defendants named above are, and at all relevant times have been, acting under color of state law, and are sued in their official capacities.
JURISDICTION AND VENUE 30. . This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343
because the suit raises federal questions under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. 31. Venue is proper in the Western District of Kentucky under 28U.S.C. § 1391(b) because Defendants perform their official duties in this district.
FACTUAL BACKGROUND
32. The Commonwealth presently prohibits persons of the same sex from marrying by stating that “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky”. Kentucky Constitution, Section 223A, ratified November 2, 2004, provides: 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. Marriage between members of the same sex is prohibited. See KRS 402.020(1)(d). KRS 402.040(1) provides that if a resident of this state marries in another state, the marriage will be valid in Kentucky if it was valid in the state where solemnized. However, KRS 402.040(2) provides: 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. KRS 402.045(1) provides in part that, “A marriage between members of the same sex which

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occurs in another jurisdiction shall be void in Kentucky.” KRS 402,045(2) provides that “Any rights granted by virtue of the [same sex] marriage, or its termination, shall be unenforceable in Kentucky courts.” Thus under these legislative enactments no county clerk, or deputy or assistant county clerk can legally issue a marriage license to applicants of the same sex. KRS 402.990(6)3 provides that any clerk who knowingly issues a marriage license to persons prohibited from marrying shall be guilty of a Class A misdemeanor and removed from office by the judgment of the court in which the clerk is convicted. 32. As a result, marriage in Kentucky is legally available only to opposite-sex couples. Same-sex couples may not marry in Kentucky and if they are married elsewhere, their marriages are not recognized in Kentucky.
Same-Sex and Opposite-Sex Couples are Similarly Situated for Purposes of Marriage
33. The Supreme Court has called marriage "the most important relation in life," Zablocki u. Redhail, 434 U.S. 374, 384 (1978) (internal quotation marks omitted), and an "expression [] of emotional support and public commitment."Turner v. Safley, 482 U.S. 78, 95 (1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two people...." Windsor, Slip. Op. at 20. This is as true for same-sex couples as it is for opposite-sex couples.
34. Same-sex couples such as the Plaintiff couple are identical to opposite-sex couples in all of the characteristics relevant to marriage.
35. Same-sex couples make the same commitment to one another as opposite-sex couples. Like opposite-sex couples, same-sex couples build their lives together, plan their futures together and hope to grow old together. Like opposite-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness.
36. Like some opposite-sex couples, some same-sex couples like the Plaintiffs Greg and Michael are parents raising children together.

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37. Same-sex couples seeking to marry are just as willing and able as opposite-sex couples to assume the obligations of marriage. 38. The Plaintiff couple and other same-sex couples in Kentucky, if permitted to marry, would benefit no less than opposite-sex couples from the many legal protections and the social recognition afforded to married couples. 39. There was a time when an individual's sex was relevant to his or her legal rights and duties within the marital relationship. For example, husbands had a duty to support their wives but not vice versa and husbands had legal ownership of all property belonging to their wives. But these legal distinctions have all been removed such that the legal rights and duties of husbands and wives are now identical.
The Exclusion of Same-Sex Couples from Marriage Causes Substantial Harm to Couples and Their Families
40. By preventing same-sex couples from marrying and refusing to recognize their marriages from others states, the Commonwealth’s law deprives them of numerous legal protections that are available to opposite-sex couples in Kentucky by virtue of their marriages. By way of example only: a. A married person is exempt from inheritance tax on property left to him by an opposite-sex spouse, including the spouse's share of the couple's home, and, thus, protected against economic distress or loss of a home because of an estate tax bill. KRS 140.070. A same-sex surviving spouse or partner is denied this exemption and must pay a higher rate, which applies to non-family-members. KRS 392.020. b. The Commonwealth requires opposite-sex spouses to support one another financially. KRS 404.40. There is no support obligation for same-sex spouses or partners. 41. Same-sex couples are excluded from these and many other legal protections provided for married couples under Kentucky law. 42. The exclusion of same-sex couples from marriage also denies them eligibility for numerous federal protections afforded to married couples including in the areas of immigration and citizenship, taxes, and social security. Some of the federal protections for married couples are only available to couples if their marriages are legally recognized

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in the state in which they live. See, e.g., 42 U.S.C. § 416(h)(1)(A)(i) (marriage for eligibility for social security benefits based on law of state where couple resides at time of application); 29 C.F.R. § 825.122(b) (same for Family Medical Leave Act). Thus, even Plaintiffs Michael and Greg, who are already married, cannot access such federal protections as long as Kentucky refuses to recognize their existing marriage. 43. The exclusion from marriage also harms same-sex couples and their families in less tangible ways. 44. Although the Plaintiff couples are all in long-term committed relationships, they and other same-sex couples are denied the stabilizing effects of marriage, which helps keep couples together during times of crisis or conflict. 45. Excluding same-sex couples from marriage also harms couples and their children by denying them the social recognition that comes with marriage. Marriage has profound social significance both for the couple that gets married and the family, friends and community that surround them. The terms "married" and "spouse" have universally understood meanings that command respect for a couple's relationship and the commitment they have made. 46. The exclusion from the esteemed institution of marriage also demeans and stigmatizes lesbian and gay couples and their children by sending the message that they are less worthy and valued than families headed by opposite-sex couples. 47. The impact of the exclusion from marriage on same-sex couples and their families is extensive and real. The denial of the right to marry causes these couples and their families to suffer significant emotional, physical, and economic hardships. 48. The plaintiff couples recognize that marriage entails both benefits to and obligations on the partners and they welcome both.
Excluding Same-Sex Couples from Marriage Is Not Rationally Related to a Legitimate Government Interest,
-Let Alone Able to Withstand Heightened Scrutiny
49. As the evidence will show, the prohibition against marriage for same-sex couples in Kentucky is not closely tailored to serve an important government interest or

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substantially related to an exceedingly persuasive justification. In fact, as the evidence also will show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to any legitimate justifications that were offered in support of it when the Constitution was amended in 2004 or to any legitimate interest of the Commonwealth that Defendants might now offer as a basis for denying same-sex couples the freedom to marry in Kentucky. 50. When the Commonwealth enacted the 2004 amendment prohibiting marriage for same-sex couples, legislators in favor of the amendment relied on the fact that at that point there were not states that allowed same-sex marriages, so the amendment was couched as something just maintaining the status quo. There was no way for the drafters of the amendment, and the voters, to know that within a decade, there would be multiple states legalizing same-sex unions. 51. The justifications given at the time were similar to those in support of the Defense of Marriage Act and none of these justifications, or any other justification that might now be offered, passes Constitutional muster. 52. Neither tradition nor moral disapproval of same-sex relationships or marriage for lesbian and gay couples is a legitimate basis for unequal treatment of same-sex couples under the law. The fact that a discriminatory law is longstanding does not immunize it from constitutional scrutiny. And the Supreme Court has made clear that the law cannot, directly or indirectly, give effect to private biases and has expressly rejected moral disapproval of marriage for same-sex couples as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op., at 21 (an "interest in protecting traditional moral teachings reflected in heterosexual-only marriage laws" was not a legitimate justification for federal Defense of Marriage Act).
Preserving the Public Fisc and the Coffers of Private Business 53. The Commonwealth cannot justify its denial of marriage to lesbian and gay couples by claiming an interest in preserving the public fisc or the coffers of private business. Saving money is not a justification for excluding a group from a government benefit without an independent rationale for why the cost savings ought to be borne by the particular group denied the benefit. Moreover, the evidence will show that there is no

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factual basis for the notion that allowing and recognizing the marriages of same-sex couples will burden the Commonwealth financially or constitute a burden on businesses.
Protection of Children
54. The Commonwealth's ban on marriage for same-sex couples is not rationally related to child welfare concerns. The government has a vital interest in protecting the well-being of children, but the exclusion of same-sex couples from marriage bears no relation to this interest. To the contrary, it harms children in the Commonwealth. 55. Commonwealth law recognizes that neither sexual orientation nor gender has any bearing on a couple's ability to successfully rear children and, thus, treats gay and lesbian couples the same as heterosexual couples with respect to adoption and recognition as parents through the in loco parentis doctrine. Kentucky judges have granted adoptions to same-sex couples, recognizing that the adoptions are in the best interest of the child. Indeed, the government itself places children for adoption with same-sex couples like Plaintiffs Michael and Greg who jointly adopted their son I.D. out of the foster care system. Any assertion that the Commonwealth does not consider same-sex couples equally effective parents cannot be credited given its own conduct evidencing a different view. 56. Moreover, there is no valid basis for the Commonwealth to assert a preference for child-rearing by opposite-sex couples over same-sex couples. The evidence will demonstrate that there is a consensus within the scientific community, based on over thirty years of research, that children raised by same-sex couples are just as well adjusted as children raised by opposite-sex couples. This is recognized by every major professional organization dedicated to children's health and welfare including the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers and the Child Welfare League of America.

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57. Other courts have found, after trials involving expert testimony, that there is no rational basis for favoring parenting by heterosexual couples over gay and lesbian couples. See, e.g., Perry v. Schwazenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the research supporting the conclusion that "[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted" is "accepted beyond serious debate in the field of developmental psychology"), af'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) ("[B]ased 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; the best interests of children are not preserved by prohibiting homosexual adoption."), aff'd sub nom Florida Dept of Children &Families v. Adoption of X.X. G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Review Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay parents that "there was no rational relationship between the [exclusion of gay people from becoming foster parents] and the health, safety, and welfare of the foster children."), aff'd sub nom Dept of Human Sews. v. Howard, 238 S.W.3d 1 (Ark. 2006). 59. Excluding same-sex couples from marriage has no conceivable benefit to children of heterosexual couples. Denying same-sex couples the right to marry does not encourage opposite-sex couples who have children to marry or stay married for the benefit of their children. And regardless of whether same-sex couples are permitted to marry, the children of opposite-sex spouses will continue to enjoy the same benefits and protections that flow from their parents' marriage. 60. Excluding same-sex couples from marriage serves only to harm the children raised by lesbian and gay couples by denying their families significant benefits and by branding their families as inferior and less deserving of respect and, thus, encouraging private bias and discrimination. According to the 2010 United States Census, there are over 2800 same-sex couples raising children in Kentucky. The state's interest in the welfare of

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children of lesbian and gay parents is or should be as great as its interest in the welfare of other children.
CLAIMS FOR RELIEF COUNT I:
Deprivation of the Fundamental Right to Marry in Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution (42 U.S.C. § 1983)
61. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 62. The Fourteenth Amendment to the United States Constitution precludes any State from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Governmental interference with a fundamental right may be sustained only upon a showing that the legislation is closely tailored to serve an important governmental interest. 63. The Supreme Court has long recognized that marriage is a fundamental right and that choices about marriage, like choices about other aspects of family, are a central part of the liberty protected by the Due Process Clause. 64. Kentucky law denies the Plaintiff couple and other same-sex couples this fundamental right by denying them access to the state-recognized institution of marriage and refusing to recognize the marriages they entered into in other states and countries. 65. The Commonwealth can demonstrate no important interest to justify denying the Plaintiff couple this fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate interest at all.

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66. The Commonwealth's prohibition of marriage between persons of the same sex and its refusal to recognize marriages entered into by same-sex couples in other jurisdictions violates the Due Process Clause. 67. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983)
68. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 69. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no State shall ...deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV,§ 1. 70. By denying the Plaintiff couple and other lesbian and gay couples the ability to marry and to have their out-of-state marriages recognized, the Commonwealth, through Defendants, disadvantages lesbian and gay people on the basis of their sexual orientation. It denies them significant legal protections. And it "degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples interact, including their own children," that their relationship is "less worthy" than the relationships of others. Windsor, Slip Op., at 25. 71 Same-sex couples and opposite-sex couples are similarly situated for purposes of marriage. 72. The evidence will show that classifications based on sexual orientation demand heightened scrutiny.

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73. Lesbians and gay men are members of a discrete and insular minority that has suffered a history of discrimination in the Commonwealth and across the United States. 74. Sexual orientation bears no relation to an individual's ability to perform or contribute to society. 75. Sexual orientation is a core, defining trait that is so fundamental to one's identity that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. Efforts to change a person's sexual orientation through interventions by medical professionals have not been shown to be effective. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and many —including the American Psychological Association and the American Psychiatric Association —have adopted policy statements cautioning professionals and the public about these treatments. 76. Prejudice against lesbians and gay men continues to seriously curtail the operation of the political process preventing this group from obtaining redress through legislative means. Lesbians and gay men lack statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half of the states, including Kentucky. Lesbians and gay men have far fewer civil rights protections at the state and federal level than women and racial minorities had when sex and race classifications-were declared to be suspect or quasi suspect. They have been stripped of the right to marry through 30 state constitutional amendments, and have been targeted through the voter initiative process more than any other group. 77. For all these reasons, classification based on sexual orientation should be reviewed under heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The Commonwealth's exclusion of same-sex couples from marriage is not rationally related to any legitimate governmental interest. All it does it disparage and injure lesbian and gay couples and their children. 78. The Commonwealth's prohibition of marriage for same-sex couples and its refusal to recognize the marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.

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79. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT III: Discrimination on the Basis of Sex in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983)
80. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 81. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no State shall ...deny to any person within its jurisdiction the equal protection of the laws.'.' U.S. Const. amend. XIV, § 1. 82. Commonwealth law defines marriage as " Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.” Kentucky Amendment 223A. 83. By defining marriage in this way, the Commonwealth discriminates on the basis of sex. For example, Plaintiffs Greg and Michael are not permitted to marry in this Commonwealth solely because they are both men. If Michael (or Greg) were a woman, the marriage would be allowed. The only reason the marriage is prohibited is the sex of the partners. 84. In addition, the Commonwealths has made KRS 402.045(1) which provides in part that, “A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky.” KRS 402,045(2) provides that “Any rights granted by virtue of the [same sex] marriage, or its termination, shall be unenforceable in Kentucky courts.” 85.The marriage of Greg and Michael, for example, is denied recognition solely because they are both men.

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86. The Supreme Court has made clear that perpetuation of traditional gender roles is not a legitimate government interest. 87. Given that there are no longer legal distinctions between the duties of husbands and wives, there is no basis for the sex-based eligibility requirements for marriage. 88. The Defendants can demonstrate no exceedingly persuasive justification for this discrimination based on sex. 89. Commonwealth law prohibiting marriage and recognition of marriage for same-sex couples thus violates the Equal Protection Clause. 90. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that 223A Amendment to the Kentucky Constitution violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution; 2. Enter a declaratory judgment that KRS 402.045(2) and KRS 402.045 (1) violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; 3. Enter a permanent injunction enjoining Defendants from denying the Plaintiff couple and all other same-sex couples the right to marry in the Commonwealth of Kentucky and directing Defendants to recognize marriages validly entered into by the Plaintiff couple and other same-sex couples outside of the Commonwealth of Kentucky; 4. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. § 1988; and 5. Enter all further relief to which Plaintiffs may be justly entitled.
Respectfully submitted this 26th day of July, 2013.

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_/s/ DAWN ELLIOTT Dawn Elliott 1752 Frankfort Ave. Louisville, KY 40206 502.569.7710 Counsel for Plaintiffs

FAUVER LAW OFFICE, PLLC _/s/ SHANNON FAUVER Shannon Fauver 1752 Frankfort Ave. Louisville, KY 40206 502-569-7710 Counsel for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE

NO.________________

)

GREGORY BOURKE and MICHAEL )

DELEON, and I.D. AND I.D., minor

)

children, by and through their

)

parents and next friends, GREGORY

)

BOURKE and MICHAEL DELEON , and )

JIMMY LEE MEADE and LUTHER

)

BARLOWE, and RANDELL JOHNSON )

and PAUL CAMPION, and T. J.-C. AND )

T. J.-C AND D.J.-C. AND M.J.-C., minor )

children, by and through their

)

parents and next friends, RANDELL

)

JOHNSON and PAUL CHAMPION

)

Plaintiffs )

)

vs.

)

)

STEVE BRESHEAR, in his official

)

capacity as Governor of Kentucky;

)

and JACK CONWAY, in his official

)

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capacity as Attorney General of

)

Kentucky; and BOBBIE HOLSCLAW in )

her official capacity as Jefferson County )

Clerk and ELAINE FILIATREAU in her official)

Capacity as Nelson County Clerk

)

)

Defendants )

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1. Plaintiffs bring this action to challenge the constitutionality of Kentucky’s laws excluding same-sex couples from marriage and voiding within the State of Kentucky the marriages of same-sex couples entered in other states or countries. KRS 402.040(2)
2. Plaintiffs Gregory Bourke and Michael Deleon, Jimmy Meade and Luther Barlowe, and Randell Johnson and Paul Campion are already married, having wed in either another country or another state. Kentucky does not recognize same-sex marriages. The Plaintiffs are treated as legal strangers in their home state of Kentucky.
3. Plaintiffs I.D. and I.D. are children of the Plaintiffs, Gregory Bourke and Michael Deleon. Plaintiffs T.J.-C., T.J.-C, D.J.-C. and M.J.-C are children of Plaintiffs Randell Johnson and Paul Campion. The fact that their parents’ marriages are not recognized in Kentucky harms them materially by reducing family resources and stigmatizes them by denying their families social recognition and respect.
4. The Plaintiffs all reside in the Western District of Kentucky, some in Louisville and some in Bardstown and are all active members of their communities and come from all walks of life; including an application consultant, a database administrator, hospital administrator, a school counselor, an optician and an accountant (both also were business owners). All three of the adult couple Plaintiffs have been together decades, 31 years, 44 years and 22 years respectively. Two of the Plaintiff couples are raising children

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together. The situations faced by these couples are similar to those faced by thousands of same-sex couples who are being denied the basic rights that are afforded by marriage. 5. The Plaintiff couples, like other committed couples, have cared for each other, supported each other, sacrificed for each other, and made plans for the future with each other. When Jimmy Meade was diagnosed with non-Hodgkin’s lymphoma and retired, Luke Barlowe took care of him as a member of a committed couple. 6. Like other couples who have made a lifetime commitment to each other, the Plaintiff couples are spouses in every sense, except that Kentucky law says even though they are married in other jurisdictions, their marriages are not honored here in Kentucky. 7. At present, thirteen states allow same-sex marriage, as does the District of Columbia. 8. As the Plaintiff couples’ marriages are not recognized by the state, when they adopted the minor Plaintiffs, they were only able to have one parent listed as the adoptive parent, and the other parent had to go to court to acquire guardianship papers for his own children so that he could be their legal guardian, but not their legal parent. This is just one example of how the Commonwealth materially impacts the Plaintiff children’s lives. 9. The Plaintiffs with minor children have been raising children together for over a decade. The situations faced by the adult Plaintiffs are similar to those faced by thousands of same-sex couples in Kentucky who are being denied the basic rights that are afforded to them by marriage. 10. The Commonwealth’s exclusion of same-sex couples from recognition of their marriages adversely impacts the Plaintiffs and same-sex couples across the Commonwealth in other significant ways. It excludes them from the many legal protections available to spouses. For example, when one spouse dies, the surviving spouse may face serious financial hardship, including the loss of the family house, because he is denied the inheritance tax exemption provided to surviving spouses. Due to Kentucky’s refusal to allow or to recognize their marriages, same-sex couples are also denied many federal protections afforded to other married couples such as the ability to take time off work to care for a sick spouse under the Family Medical Leave Act and access to a spouse’s social security retirement benefits. 11. The exclusion from marriage undermines the Plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity

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and status of immense import." United States v. Windsor, No. 12-307, Slip Op., at 18 (U.S. June 26, 2013). Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells [same-sex couples and all the world - that their relationships are unworthy" of recognition. Id. at 2223. And it "humiliates the ...children now being raised by same-sex couples" and "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 23. 12. The adult Plaintiffs are old enough to remember when a majority of states had laws prohibiting marriage between people of different races and when the Supreme Court struck down such prohibitions in Loving v. Virginia, 388 U.S. 1, 12 (1967), declaring: "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." 13. Our courts and our society have discarded, one by one, marriage laws that violated the Constitution's mandate of equality, such as anti-miscegenation laws and laws that denied married women legal independence and the right to make decisions for themselves. History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution. Ending the exclusion of lesbian and gay couples from marriage is no different. Indeed, in 13 states and the District of Columbia, same-sex couples are marrying and the institution of marriage continues to thrive. 14. This is because, at its heart, marriage is both a personal and a public commitment of two people to one another, licensed by the state. Through marriage, the Commonwealth recognizes a couple's decision to establish a family unit together and support one another and any children of the marriage. 15. Marriage contributes to the happiness of countless couples and their families and also contributes to society. Kentucky, like other states, encourages and regulates marriage through hundreds of laws that provide benefits to and impose obligations on married couples. In exchange, the Commonwealth receives the well-established benefits that marriage brings: stable, supportive families that contribute to both the social and economic well-being of the Commonwealth.

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16. Kentucky's exclusion of same-sex couples from marriage infringes on the Due Process and the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. But it cannot stand under any level of scrutiny because the exclusion does not rationally further any legitimate government interest. It serves only to disparage and injure same-sex couples and their families.
17. Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief against Defendants. Specifically, Plaintiffs seek: (a) a declaration that the Commonwealth's prohibition of marriage for same-sex couples and its refusal to recognize marriages of same-sex couples validly entered into outside of the Commonwealth violateS the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (b) a permanent injunction i) preventing Defendants from denying the Plaintiff couple and all other same-sex couples otherwise eligible to marry, the right to marry in the Commonwealth of Kentucky, and ii) directing Defendants to recognize the marriages of the Plaintiff couples and other same-sex couples validly entered into outside of Kentucky.
18. The Plaintiffs were legally married in another jurisdiction and their marriage should be recognized in Kentucky even if at the time of their marriage, it would not have been allowed in Kentucky. For example, Kentucky does not allow marriage by proxy, as Oklahoma does, but does not specifically void a marriage by proxy once it is legally performed in Oklahoma. If it did, it would be specifically listed in that statute, just as first cousin marriages are not only not performed here but are voided here, even when legal in the state they were performed in. This means that but for their gender, the Plaintiffs’ marriage would be recognized which is a violation of the Equal Protection Clause of the 14th Amendment.
THE PARTIES The Plaintiffs Greg Bourke Michael Deleon and I.D. and I.D.

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19. Plaintiffs Gregory Bourke (“Greg”) and Michel DeLeon (“Michael”) have been together for 31 years and have lived together for 31 years and live in Louisville, Jefferson County Kentucky. Greg is a 55 year old Applications Consultant at Humana and Michael is a 55 year old Database Administrator at General Electric. They have been together since they were students at the University of Kentucky.
20. Greg and Michael have two children, Plaintiff I.D., who is a 14 year old girl and Plaintiff I.D. who is a 15 year old boy. Both of the minor Plaintiffs were adopted by Michael as they could not be legally adopted by both of their parents as the marriage was not recognized by this Commonwealth. Greg then went to court to be designated the children’s legal guardian, but not their parent as this Commonwealth does not recognize a same-sex marriage.
21. Greg and Michael are involved at the children’s school, church and extra-curricular activities. Greg and Michael are active with I.D.’s boyscout troop and I.D.’s basketball team. Michael volunteered with planning school holiday parties and supported Parent Teacher Organization at the children’s school and their activities working at school fundraisers. Greg was registered Girl Scout Leader for 8 years and Boy Scout Leader for 6 years, and he volunteered at school cafeteria, and frequently chaperoned school field trips. Last year Greg was awarded a Legislative Citation from the Commonwealth of Kentucky House of Representatives for his dedicated service to the scouting programs at their children’s school. Both have also been involved in numerous volunteer activities through scouting.
22. Greg and Michael are devout Catholics and they, as their children are members of and actively involved with their church. Michael served on the Parish Council for years and was previously Vice Chair. He is active in several church ministries including Hospitality and Church grounds keeping. Greg has served on the Worship Committee and Coordinator of the Communion Ministry. Last year he received the church’s annual Stewardship Award for volunteerism.
23. Both children have been active members of the church and have served as volunteers for several years at the annual Vacation Bible School for church youth. Both children presently attend Catholic High Schools.
24. Greg and Micheal were married in Ontario Canada, as same-sex marriages were not possible in the Commonwealth on March 29, 2004.

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25. Greg and Michael would like to have their marriage recognized in the Commonwealth of Kentucky in order to have the same legal protections opposite-sex married couples are afforded in the Commonwealth. They are unsure of how they might be treated in a time of crisis and therefore had a lawyer draw up powers of attorney for them.
26. In addition, even though they now have the option for same-sex partner health insurance through both of their employers, they would have to pay to add their spouse, but a similar situated opposite-sex married couple would not have to pay to add their spouse on their employers’ health insurance plans.
27. Moreover, when either Greg or Michael dies; they will have to pay an inheritance tax at a much higher rate than they would if their marriage was recognized by the Commonwealth.
28. Greg and Michael want their marriage recognized by the Commonwealth because they are concerned their children are being taught that the Commonwealth values their family less and is less deserving of respect and support than other families.
29. I.D. and I.D.grew up knowing that their parents are married. As they got older and came to learn that their parents marriage is not recognized in the Commonwealth, both children felt that this was unfair to the whole family. They know they are a family and want to be legally recognized as one. They believe they should not be deprived of economic resources available to families headed by opposite-sex married couples. And they feel stigmatized by the fact that their parents are excluded from marriage. They believe that allowing their parents to marry would demonstrate that society accepts their family and considers it worthy of respect.
30. For I.D.’s and I.D.’s entire lives, their parents have had to continue to declare themselves “single” on forms for school and activities as Kentucky does not recognize their parents’ marriage and therefore demeans the value of their family.
THE PARTIES The Plaintiffs Jimmy Meade and Luther Barlowe

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31. Plaintiffs Jimmy Meade (“Jim”) and Luther Barlowe (“Luke”) have been together for 44 years and have lived in Bardstown Kentucky for 7 years. Jim is 64 year old. He was an accountant and owned and ran three businesses with Luke before he was diagnosed with non-Hodgkin’s lymphoma and retired in 2002. Luke is 71 years old. Luke was a licensed optician in Kentucky, Ohio, and Iowa and owned three businesses with Jim before he also retired. They have been together for 44 years, since they met when Jim was a student at Morehead State University.
32. Jim and Luke have worked in Iowa, Tennessee and Georgia before moving to Kentucky to be closer to their family.
33. Luke is a Kentucky native and has been active in the volunteer community for decades. 34. Jim and Luke were married on July 30, 2009 in Davenport Iowa as same-sex marriages
were not possible in the Commonwealth on July 30, 2009. 35. Jim and Luke would like to have their marriage recognized in the Commonwealth of
Kentucky in order to have the same legal protections opposite-sex married couples are afforded in the Commonwealth. They are unsure of how they might be treated in a time of crisis and therefore had a lawyer draw up powers of attorney for them. 36. In addition, when either Jim or Luke dies; they will have to pay an inheritance tax at a much higher rate than they would if their marriage was recognized by the Commonwealth. 37. Jim and Luke want their marriage recognized by the Commonwealth because they want the same benefits opposite-sex married couples are entitled to by virtue of their marriage.
THE PARTIES The Plaintiffs
Randell Johnson and Paul Campion
38. Plaintiffs Randell Johnson (“Randy”) and Paul Campion (“Paul”) have been together for 22 years and have lived together for 21 years and live in Louisville, Jefferson County Kentucky. Randy is a 45 year old director of quality management and Paul is a 47 year old counselor. They have been together since Paul visited a brother who lived in Louisville 22 years ago.

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39. Randy and Paul have four children; Plaintiffs T.J.-C. and T.J.-C are twin 18 year old boys, Plaintiff D.J.-C. is a 14 year old boy and Plaintiff M.J.-C. is 10 year old girl. All three of the minor male Plaintiffs were adopted by Paul as they could not be legally adopted by both of their parents as the marriage was not recognized by this Commonwealth. The Plaintiff M.J.-C. was adopted by Randy as they could not be legally adopted by both of their parents as the marriage was not recognized by this Commonwealth.
40. Randy and Paul are involved at the children’s school and extra-curricular activities. 41. Randy and Paul were married in Riverside California, as same-sex marriages were not
possible in the Commonwealth on July 3, 2008. 42. Randy and Paul would like to have their marriage recognized in the Commonwealth of
Kentucky in order to have the same legal protections opposite-sex married couples are afforded in the Commonwealth. They are unsure of how they might be treated in a time of crisis and therefore had a lawyer draw up powers of attorney for them. 43. Also, due to an incident that occurred in the past, they actually carry around copies of their children’s adoption papers with them to show that they are the legal parents or guardians of the children (as the State does not currently allow for same-sex married couples to adopt). 44. In addition, as Paul and Randy’s marriage is not currently recognized in Kentucky, they would not be eligible for FMLA if it was needed for their spouse or one of the children whom they were not on the adoption papers for (as the State does not currently allow for same-sex married couples to adopt). This is a very real concern for them as they have four children and daily have to consider the ramifications of living in a State that does not recognize their marriage. For instance, in case of a family emergency, FMLA would be something to protect them if they were an opposite-sex married couple, but not when they are a same-sex married couple. 45. Moreover, when Paul or Randy dies; they will have to pay an inheritance tax at a much higher rate than they would if their marriage was recognized by the Commonwealth. 46. Also, when Paul or Randy dies, their children will be taxed differently than children of opposite-sex married couples as they aren’t deemed to be legal children of both of their parents.

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47. Paul and Randy want their marriage recognized by the Commonwealth because they are concerned their children are being taught that the Commonwealth values their family less and is less deserving of respect and support than other families.
48. T.J.-C. and T.J.-C and D.J.-C. and M.J.-C. grew up knowing that their parents are married. As they got older and came to learn that their parents’ marriage is not recognized in the Commonwealth, the children felt that this was unfair to the whole family. They know they are a family and want to be legally recognized as one. They believe they should not be deprived of economic resources available to families headed by opposite-sex married couples. And they feel stigmatized by the fact that their parents are excluded from marriage. They believe that allowing their parents to marry would demonstrate that society accepts their family and considers it worthy of respect.
DEFENDANTS 49. Defendant STEVE BRESHEAR is the Governor of the Commonwealth of Kentucky. In
his official capacity, he is the chief executive officer of the Commonwealth and is responsible for the faithful execution of the laws of the Commonwealth of Kentucky,
including the laws that exclude same-sex couples from marrying or having their marriages recognized KRS 402.045(1) and the Kentucky Constitution, Section 233A. 50. Defendant JACK CONWAY is the Attorney General of the Commonwealth of Kentucky. He is sued in his official capacity pursuant to the KRS 15.020. 51. Defendant BOBBI HOLSCLAW is the Jefferson County Clerk of the Commonwealth of Kentucky. She is being sued in her official capacity as such overseas the issuing of marriage licenses and the enforcement of the regulations surrounding said licenses. She is being sued in her official capacity. She is responsible for preparing and approving the marriage license application and marriage license forms used in county offices across the Commonwealth. 52. Defendant Elaine A. Filiatreau is the Nelson County Clerk of the Commonwealth of Kentucky. She is being sued in her official capacity as such overseas the issuing of marriage licenses and the enforcement of the regulations surrounding said licenses. She is being sued in her official capacity. She is responsible for preparing and approving the

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marriage license application and marriage license forms used in county offices across the Commonwealth. 53. All Defendants named above are, and at all relevant times have been, acting under color of state law, and are sued in their official capacities.
JURISDICTION AND VENUE 54. . This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343
because the suit raises federal questions under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. 55. Venue is proper in the Western District of Kentucky under 28U.S.C. § 1391(b) because Defendants perform their official duties in this district.
FACTUAL BACKGROUND
56. The Commonwealth presently prohibits persons of the same sex from marrying by stating that “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky”. Kentucky Constitution, Section 223A, ratified November 2, 2004, provides: 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. Marriage between members of the same sex is prohibited. See KRS 402.020(1)(d). KRS 402.040(1) provides that if a resident of this state marries in another state, the marriage will be valid in Kentucky if it was valid in the state where solemnized. However, KRS 402.040(2) provides: 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. KRS 402.045(1) provides in part that, “A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky.” KRS 402,045(2) provides that “Any rights granted by virtue of the [same sex] marriage, or its termination, shall be

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unenforceable in Kentucky courts.” Thus under these legislative enactments no county clerk, or deputy or assistant county clerk can legally issue a marriage license to applicants of the same sex. KRS 402.990(6)3 provides that any clerk who knowingly issues a marriage license to persons prohibited from marrying shall be guilty of a Class A misdemeanor and removed from office by the judgment of the court in which the clerk is convicted. 57. As a result, marriage in Kentucky is legally available only to opposite-sex couples. Same-sex couples may not marry in Kentucky and if they are married elsewhere, their marriages are not recognized in Kentucky.
Same-Sex and Opposite-Sex Couples are Similarly Situated for Purposes of Marriage
58. The Supreme Court has called marriage "the most important relation in life," Zablocki u. Redhail, 434 U.S. 374, 384 (1978) (internal quotation marks omitted), and an "expression [] of emotional support and public commitment."Turner v. Safley, 482 U.S. 78, 95 (1987). It is "a far-reaching legal acknowledgement of the intimate relationship between two people...." Windsor, Slip. Op. at 20. This is as true for same-sex couples as it is for opposite-sex couples.
59 Same-sex couples such as the Plaintiff couple are identical to opposite-sex couples in all of the characteristics relevant to marriage.
60. Same-sex couples make the same commitment to one another as opposite-sex couples. Like opposite-sex couples, same-sex couples build their lives together, plan their futures together and hope to grow old together. Like opposite-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness.
61. Like some opposite-sex couples, some same-sex couples like the Plaintiffs Greg and Michael and Plaintiffs Paul and Randy are parents raising children together.
62. Same-sex couples seeking to marry are just as willing and able as opposite-sex couples to assume the obligations of marriage.

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63. The Plaintiff couples and other same-sex couples in Kentucky, if permitted to marry, would benefit no less than opposite-sex couples from the many legal protections and the social recognition afforded to married couples. 64. There was a time when an individual's sex was relevant to his or her legal rights and duties within the marital relationship. For example, husbands had a duty to support their wives but not vice versa and husbands had legal ownership of all property belonging to their wives. But these legal distinctions have all been removed such that the legal rights and duties of husbands and wives are now identical.
The Exclusion of Same-Sex Couples from Marriage Causes Substantial Harm to Couples and Their Families
65. By preventing same-sex couples from marrying and refusing to recognize their marriages from others states, the Commonwealth’s law deprives them of numerous legal protections that are available to opposite-sex couples in Kentucky by virtue of their marriages. By way of example only:
a. A married person is exempt from inheritance tax on property left to him by an opposite-sex spouse, including the spouse's share of the couple's home, and, thus, protected against economic distress or loss of a home because of an estate tax bill. KRS 140.070. A same-sex surviving spouse or partner is denied this exemption and must pay a higher rate, which applies to non-family-members. KRS 392.020. b. The Commonwealth requires opposite-sex spouses to support one another financially. KRS 404.40. There is no support obligation for same-sex spouses or partners. 66. Same-sex couples are excluded from these and many other legal protections provided for married couples under Kentucky law. 67. The exclusion of same-sex couples from marriage also denies them eligibility for numerous federal protections afforded to married couples including in the areas of immigration and citizenship, taxes, and social security. Some of the federal protections for married couples are only available to couples if their marriages are legally recognized in the state in which they live. See, e.g., 42 U.S.C. § 416(h)(1)(A)(i) (marriage for eligibility for social security benefits based on law of state where couple resides at time of application); 29 C.F.R. § 825.122(b) (same

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for Family Medical Leave Act). Thus, even Plaintiffs Michael and Greg, who are already married, cannot access such federal protections as long as Kentucky refuses to recognize their existing marriage. 68. The exclusion from marriage also harms same-sex couples and their families in less tangible ways. 69. Although the Plaintiff couples are all in long-term committed relationships, they and other same-sex couples are denied the stabilizing effects of marriage, which helps keep couples together during times of crisis or conflict. 70. Excluding same-sex couples from marriage also harms couples and their children by denying them the social recognition that comes with marriage. Marriage has profound social significance both for the couple that gets married and the family, friends and community that surround them. The terms "married" and "spouse" have universally understood meanings that command respect for a couple's relationship and the commitment they have made. 71. The exclusion from the esteemed institution of marriage also demeans and stigmatizes lesbian and gay couples and their children by sending the message that they are less worthy and valued than families headed by opposite-sex couples. 72. The impact of the exclusion from marriage on same-sex couples and their families is extensive and real. The denial of the right to marry causes these couples and their families to suffer significant emotional, physical, and economic hardships. 73. The Plaintiff couples recognize that marriage entails both benefits to and obligations on the partners and they welcome both.
Excluding Same-Sex Couples from Marriage Is Not Rationally Related to a Legitimate Government Interest,
-Let Alone Able to Withstand Heightened Scrutiny
74. As the evidence will show, the prohibition against marriage for same-sex couples in Kentucky is not closely tailored to serve an important government interest or substantially related to an exceedingly persuasive justification. In fact, as the evidence also will show, the prohibition fails any level of constitutional scrutiny. It is not even rationally related to any legitimate justifications that were offered in support of it when the Constitution was amended in

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2004 or to any legitimate interest of the Commonwealth that Defendants might now offer as a basis for denying same-sex couples the freedom to marry in Kentucky. 75. When the Commonwealth enacted the 2004 amendment prohibiting marriage for samesex couples, legislators in favor of the amendment relied on the fact that at that point there were not states that allowed same-sex marriages, so the amendment was couched as something just maintaining the status quo. There was no way for the drafters of the amendment, and the voters, to know that within a decade, there would be multiple states legalizing same-sex unions. 76. The justifications given at the time were similar to those in support of the Defense of Marriage Act and none of these justifications, or any other justification that might now be offered, passes Constitutional muster. 77. Neither tradition nor moral disapproval of same-sex relationships or marriage for lesbian and gay couples is a legitimate basis for unequal treatment of same-sex couples under the law. The fact that a discriminatory law is longstanding does not immunize it from constitutional scrutiny. And the Supreme Court has made clear that the law cannot, directly or indirectly, give effect to private biases and has expressly rejected moral disapproval of marriage for same-sex couples as a legitimate basis for discriminatory treatment of lesbian and gay couples. Windsor, Slip Op., at 21 (an "interest in protecting traditional moral teachings reflected in heterosexualonly marriage laws" was not a legitimate justification for the Federal Defense of Marriage Act).
Preserving the Public Fisc and the Coffers of Private Business 78. The Commonwealth cannot justify its denial of marriage to lesbian and gay couples by claiming an interest in preserving the public fisc or the coffers of private business. Saving money is not a justification for excluding a group from a government benefit without an independent rationale for why the cost savings ought to be borne by the particular group denied the benefit. Moreover, the evidence will show that there is no factual basis for the notion that allowing and recognizing the marriages of same-sex couples will burden the Commonwealth financially or constitute a burden on businesses.
Protection of Children

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79. The Commonwealth's ban on marriage for same-sex couples is not rationally related to child welfare concerns. The government has a vital interest in protecting the well-being of children, but the exclusion of same-sex couples from marriage bears no relation to this interest. To the contrary, it harms children in the Commonwealth. 80. Commonwealth law recognizes that neither sexual orientation nor gender has any bearing on a couple's ability to successfully rear children and, thus, treats gay and lesbian couples the same as heterosexual couples with respect to adoption and recognition as parents through the in loco parentis doctrine. Kentucky judges have granted adoptions to same-sex couples, recognizing that the adoptions are in the best interest of the child. Indeed, the government itself places children for adoption with same-sex couples like Plaintiffs Randy and Paul who adopted one of their son’s out of the foster care system. Any assertion that the Commonwealth does not consider same-sex couples equally effective parents cannot be credited given its own conduct evidencing a different view. 81. Moreover, there is no valid basis for the Commonwealth to assert a preference for childrearing by opposite-sex couples over same-sex couples. The evidence will demonstrate that there is a consensus within the scientific community, based on over thirty years of research, that children raised by same-sex couples are just as well adjusted as children raised by opposite-sex couples. This is recognized by every major professional organization dedicated to children's health and welfare including the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers and the Child Welfare League of America. 82. Other courts have found, after trials involving expert testimony, that there is no rational basis for favoring parenting by heterosexual couples over gay and lesbian couples. See, e.g., Perry v. Schwazenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the research supporting the conclusion that "[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted" is "accepted beyond serious debate in the field of developmental psychology"), af'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) ("[B]ased 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

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hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption."), aff'd sub nom Florida Dept of Children &Families v. Adoption of X.X. G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Review Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay parents that "there was no rational relationship between the [exclusion of gay people from becoming foster parents] and the health, safety, and welfare of the foster children."), aff'd sub nom Dept of Human Sews. v. Howard, 238 S.W.3d 1 (Ark. 2006). 83. Excluding same-sex couples from marriage has no conceivable benefit to children of heterosexual couples. Denying same-sex couples the right to marry does not encourage oppositesex couples who have children to marry or stay married for the benefit of their children. And regardless of whether same-sex couples are permitted to marry, the children of opposite-sex spouses will continue to enjoy the same benefits and protections that flow from their parents' marriage. 84. Excluding same-sex couples from marriage serves only to harm the children raised by lesbian and gay couples by denying their families significant benefits and by branding their families as inferior and less deserving of respect and, thus, encouraging private bias and discrimination. According to the 2010 United States Census, there are over 2800 same-sex couples raising children in Kentucky. The state's interest in the welfare of children of lesbian and gay parents is or should be as great as its interest in the welfare of other children.
CLAIMS FOR RELIEF COUNT I:
Deprivation of the Fundamental Right to Marry in Violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution (42 U.S.C. § 1983)

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85. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 86. The Fourteenth Amendment to the United States Constitution precludes any State from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Governmental interference with a fundamental right may be sustained only upon a showing that the legislation is closely tailored to serve an important governmental interest. 87. The Supreme Court has long recognized that marriage is a fundamental right and that choices about marriage, like choices about other aspects of family, are a central part of the liberty protected by the Due Process Clause. 88. Kentucky law denies the Plaintiff couple and other same-sex couples this fundamental right by denying them access to the state-recognized institution of marriage and refusing to recognize the marriages they entered into in other states and countries. 89. The Commonwealth can demonstrate no important interest to justify denying the Plaintiff couple this fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate interest at all. 90. The Commonwealth's prohibition of marriage between persons of the same sex and its refusal to recognize marriages entered into by same-sex couples in other jurisdictions violates the Due Process Clause. 91. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Discrimination on the Basis of Sexual Orientation in
Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983)

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92. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 93. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no State shall ...deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV,§ 1. 94. By denying the Plaintiff couples and other lesbian and gay couples the ability to marry and to have their out-of-state marriages recognized, the Commonwealth, through Defendants, disadvantages lesbian and gay people on the basis of their sexual orientation. It denies them significant legal protections. And it "degrade[s] [and] demean[s]" them by "instruct[ing] ...all persons with whom same-sex couples interact, including their own children," that their relationship is "less worthy" than the relationships of others. Windsor, Slip Op., at 25. 95. Same-sex couples and opposite-sex couples are similarly situated for purposes of marriage. 96. The evidence will show that classifications based on sexual orientation demand heightened scrutiny. 97. Lesbians and gay men are members of a discrete and insular minority that has suffered a history of discrimination in the Commonwealth and across the United States. 98. Sexual orientation bears no relation to an individual's ability to perform or contribute to society. 99. Sexual orientation is a core, defining trait that is so fundamental to one's identity that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. Efforts to change a person's sexual orientation through interventions by medical professionals have not been shown to be effective. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and many —including the American Psychological Association and the American Psychiatric Association —have adopted policy statements cautioning professionals and the public about these treatments. 100. Prejudice against lesbians and gay men continues to seriously curtail the operation of the political process preventing this group from obtaining redress through legislative means. Lesbians and gay men lack statutory protection against discrimination in employment, public

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accommodations, and housing at the federal level and in more than half of the states, including Kentucky. Lesbians and gay men have far fewer civil rights protections at the state and federal level than women and racial minorities had when sex and race classifications-were declared to be suspect or quasi suspect. They have been stripped of the right to marry through 30 state constitutional amendments, and have been targeted through the voter initiative process more than any other group. 101. For all these reasons, classification based on sexual orientation should be reviewed under heightened scrutiny, but this one cannot survive under any level of constitutional scrutiny The Commonwealth's exclusion of same-sex couples from marriage is not rationally related to any legitimate governmental interest. All it does it disparage and injure lesbian and gay couples and their children. 102. The Commonwealth's prohibition of marriage for same-sex couples and its refusal to recognize the marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause. 103. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT III: Discrimination on the Basis of Sex in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
(42 U.S.C. § 1983)
104. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein. 105. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no State shall ...deny to any person within its jurisdiction the equal protection of the laws.'.' U.S. Const. amend. XIV, § 1. 106. Commonwealth law defines marriage as " Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.” Kentucky Amendment 223A.

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107. By defining marriage in this way, the Commonwealth discriminates on the basis of sex. For example, Plaintiffs Greg and Michael are not permitted to marry in this Commonwealth solely because they are both men. If Michael (or Greg) were a woman, the marriage would be allowed. The only reason the marriage is prohibited is the sex of the partners. 108. In addition, the Commonwealths has made KRS 402.045(1) which provides in part that, that, “A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” KRS 402.045(2) provides that “Any rights granted by virtue of the [same sex] marriage, or its termination, shall be unenforceable in Kentucky courts.”
109. The marriage of Jim and Luke, for example, is denied recognition solely because they are both men. 110. The Supreme Court has made clear that perpetuation of traditional gender roles is not a legitimate government interest. 111. Given that there are no longer legal distinctions between the duties of husbands and wives, there is no basis for the sex-based eligibility requirements for marriage. 112. The Defendants can demonstrate no exceedingly persuasive justification for this discrimination based on sex. 113. Commonwealth law prohibiting marriage and recognition of marriage for same-sex couples thus violates the Equal Protection Clause. 114. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.

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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Enter a declaratory judgment that 223A Amendment to the Kentucky Constitution violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution; 2. Enter a declaratory judgment that KRS 402.045(2) and KRS 402.045 (1) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; 3. Enter a permanent injunction enjoining Defendants from denying the Plaintiff couples and all other same-sex couples the right to marry in the Commonwealth of Kentucky and directing Defendants to recognize marriages validly entered into by the Plaintiff couples and other same-sex couples outside of the Commonwealth of Kentucky; 4. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. § 1988; and 5. Enter all further relief to which Plaintiffs may be justly entitled.
Respectfully submitted this 16th day of August, 2013.

_/s/ DAWN ELLIOTT Dawn Elliott 1752 Frankfort Ave. Louisville, KY 40206 502.569.7710 Counsel for Plaintiffs

FAUVER LAW OFFICE, PLLC _/s/ SHANNON FAUVER Shannon Fauver 1752 Frankfort Ave. Louisville, KY 40206 502-569-7710 Counsel for Plaintiffs

 
 Case 3:13-cv-00750-JGH Document 47 Filed 02/12/14 Page 1 of 23 PageID #: 724

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:13-CV-750-H

GREGORY BOURKE, et al.

PLAINTIFFS

V.

STEVE BESHEAR, et al.

DEFENDANTS

MEMORANDUM OPINION

Four same-sex couples validly married outside Kentucky have challenged the

constitutionality of Kentucky’s constitutional and statutory provisions that exclude them from

the state recognition and benefits of marriage available to similarly situated 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 Commonwealth or its

people. Nor is it to question the importance and dignity of the institution of marriage as many

see it. Rather, it is to discuss the benefits and privileges that Kentucky attaches to marital

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 benefits it currently awards opposite-sex

spouses. F or those not trained in legal discourse, the questions may be less logical and more

emotional. They concern issues of faith, beliefs, and traditions. Our Constitution was designed

both to protect religious beliefs and prevent unlawful government discrimination based upon

them. The Court will address all of these issues.

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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. A ccordingly, Kentucky’s statutes and constitutional amendment that mandate this denial are unconstitutional.
I. No case of such magnitude arrives absent important history and narrative. That narrative necessarily discusses (1) society’s evolution on these issues, (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 limitation of marriage to opposite-sex couples was assumed and unchallenged. Those who might have disagreed did so in silence. But gradual changes in our society, political culture and constitutional understandings have encouraged some to step forward and assert their rights.
A. In 1972, two Kentucky women stepped forward to apply for a marriage license. T he Kentucky Supreme 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. 1973). The court defined “marriage” according to common usage, consulting several dictionaries. It held that no c onstitutional issue 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, 191 N.W.2d 185, 187 ( Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972); Anonymous v. Anonymous, 325 N.Y.S.2d 499, 501 (N.Y. Spec. Term 1971). A lot has changed since then.
2

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Twenty-one long years later, the Hawaii Supreme Court first opened the door to same-sex
marriage. See Baehr v. Lewin, 852 P.2d 44, 61 (Haw. 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 immediate and visceral. In the next few years,
twenty-seven states passed anti-same-sex marriage legislation,1 and Congress passed the Defense
of Marriage Act (DOMA).2
In 1998, Kentucky became one of those states, enacting new statutory provisions that (1)
defined marriage as between one man and one woman, 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. §
402.045.3
1 See ALA. CODE § 30-1-19 (2013); ARIZ. REV. STAT. ANN. §§ 25-101, -125 (2013); ARK. CODE ANN. §§ 9-11-208 (b), -107(b) (West 2013); COLO. REV. STAT. ANN. § 14-2-104 (West 2013); FLA. STAT. ANN. § 741.212 (West 2013); GA. CODE ANN. § 19-3-3.1 (West 2013); HAW. REV. STAT. §§ 572-1, -1.6 (West 2013) (repealed 2011); IDAHO CODE ANN. § 32-209 (West 2013); 750 ILL. COMP. STAT. ANN. 5/212(a)(5), 5/213.1 (West 2013); IND. CODE ANN. § 31-111-1 (West 2013); KAN. STAT. ANN. §§23-2501, 23-2508 (West 2013); LA. CIV. CODE ANN. art. 89, 3520 (2013); MICH. COMP. LAWS ANN. §§ 551.1, .271(2) (West 2013); MISS. CODE ANN. §§ 93-1-1(2) (West 2013); MO. ANN. STAT. § 451.022 (West 2013); MONT. CODE ANN. § 40-1-401(1)(d) (2013); N.C. GEN. STAT. ANN. § 51-1.2 (West 2013); N.D. CENT. CODE ANN. §§ 14-03-01, -08 (West 2013); OKLA. STAT. tit. 43, § 3.1 (2013); 23 PA. CONS. STAT. ANN. §§ 1102, 1704 (West 2013); S.C. CODE ANN. §§ 20-1-10, -15 (2013); S.D. CODIFIED LAWS §§ 25-1-1, -38 (2013); TENN. CODE ANN. § 36-3-113 (West 2013); TEX. FAM. CODE ANN. §§ 1.103, 2.001 (West 2013); UTAH CODE ANN. § 30-1-2 (West 2013), invalidated by Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013)); VA. CODE ANN. § 20-45.2 (West 2013); W. VA. CODE ANN. §§ 48-2-104, -401 (West 2013). 2 The bill included commentary that stated: “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” H.R. REP. NO. 104-664, at 4−11 (1996). 3 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 members 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 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 2013).
3

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Five years later, the Massachusetts Supreme Judicial Court declared that the state’s own ban on same-sex marriage violated their state constitution. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). In May 2004, Massachusetts began marrying same-sex couples. In response, anti-same-sex marriage advocates in many states initiated campaigns to enact constitutional amendments to protect “traditional marriage.”4
Like-minded Kentuckians began a similar campaign, arguing that although state law already prohibited same-sex marriage, a constitutional amendment would foreclose any possibility that a future court ruling would allow same-sex marriages to be performed or recognized in Kentucky. See S. DEBATE, 108TH CONG., 2ND SESS. (Ky. 2004), ECF No. 38-6. The legislature placed such an amendment on the ballot. It contained only two sentences:
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. C onsequently, the amendment and Kentucky’s statutes have much the same effect. On November 2, 2004, a pproximately 74% of participating voters approved the Amendment.5 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, invalidated, or otherwise abrogated state laws restricting same-sex couples’ access to marriage and marriage recognition.6
4 States passing constitutional amendments banning same-sex marriage in 2004 include Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah. Other states followed suit: in 2005, Kansas and Texas; in 2006, Alabama, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, 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 Oklahoma’s constitutional bans have since been overturned. 5 53.6% of Kentucky’s registered voters participated. 6 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), Washington (Nov. 6, 2012), Maine (Nov.
4

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B. In many respects, Plaintiffs here are average, stable American families. Gregory Bourke and Michael Deleon reside in Louisville, Kentucky and have been together for 31 years. They were lawfully married in Ontario, Canada in 2004 and have two minor children who are also named Plaintiffs: a 14-year-old girl; and a 15-year-old boy. Jimmy Meade and Luther Barlowe reside in Bardstown, Kentucky and have been together 44 years. They were lawfully married in Davenport, Iowa in 2009. R andell Johnson and Paul Campion reside in Louisville, Kentucky and have been together for 22 years. They were lawfully married in Riverside, California in 2008 and have four minor children who are named Plaintiffs: twin 18-year-old boys; a 14-year-old boy; and a 10-year-old girl. K imberly Franklin and Tamera Boyd reside in Cropper, Kentucky.7 T hey 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 their employer-provided health insurance, while opposite-sex spouses can elect this option free of charge. Same-sex spouses and their children are excluded from intestacy laws governing the disposition of estate assets upon death. Same-sex spouses and their
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). S tate and federal court judgments have occurred in Massachusetts, Connecticut, Iowa, California, New Jersey, New Mexico, Utah, and Oklahoma. The Utah and Oklahoma decisions are currently being appealed. 7 Plaintiffs Franklin and Boyd are residents of Shelby County and originally filed suit in the Eastern District of Kentucky. J udge Gregory Van Tatenhove granted Plaintiffs and Defendants’ joint motion for change of venue pursuant to 28 U.S.C. § 1404 to the Western District of Kentucky. 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 subsequently added Franklin and Boyd to this action in their Second Amended Complaint.
5

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children are precluded from recovering loss of consortium damages in civil litigation following a wrongful death. Under Kentucky’s workers compensation law, same-sex spouses have no legal standing to sue and recover as a result of their spouse’s fatal workplace injury.
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 addition, a same-sex spouse in Kentucky is denied access 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 stabilizing effects of marriage that helps keep couples together. Plaintiffs also allege injuries to their children including: (1) a reduction in family resources due to the State’s differential treatment of their parents, (2) stigmatization resulting from the denial of social recognition and respect, (3) humiliation, and (4) harm from only one parent being able to be listed as an adoptive parent—the other being merely their legal guardian.
C. Plaintiffs advance six primary claims under 42 U.S.C. § 1983: (1) deprivation of the fundamental right to marry in violation of the Due Process Clause of the Fourteenth Amendment; (2) discrimination on the basis of sexual orientation in violation of the Equal Protection Clause of the Fourteenth Amendment;8 (3) discrimination against same-sex couples in violation of the freedom of association 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;
8 In their Second Amended Complaint, Plaintiffs also alleged discrimination on the basis of sex. However, the current motion before the Court does not mention any such basis. Therefore, the Court will construe this claim to allege only discrimination based on sexual orientation.
6

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(5) deprivation of the right to travel in violation of the Due Process Clause of the Fourteenth Amendment; and (6) establishment of a religious definition of marriage in violation of the Establishment Clause of the First Amendment.9 Plaintiffs seek an order enjoining the State from enforcing the pertinent constitutional and statutory provisions.
While Plaintiffs have many constitutional theories, the Fourteenth Amendment’s Equal Protection Clause provides the most appropriate analytical framework.10 If equal protection analysis decides this case, the Court need not address any others. No one disputes that the samesex 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. Before addressing the substance of equal protection analysis, the Court must first determine the applicable standard of review. R ational basis review applies unless Kentucky’s laws affect a s uspect class of individuals or significantly interfere with a fundamental right. Zablocki v. Redhail, 434 U.S. 374, 388 (1978).
A. The Kentucky provisions challenged here impose a cl assification based on s exual orientation. Barely seven months ago, the Supreme Court issued a historic opinion applying
9 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 statute, is not necessary to the disposition of Plaintiffs’ case and therefore will not analyze its constitutionality. 10 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.
7

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equal protection analysis to federal non-recognition of same-sex marriages. United States v. Windsor, 133 S.Ct. 2675 (2013).11 Although the majority opinion covered many topics, it never clearly explained the applicable standard of review. Some of Justice Kennedy’s language corresponded to rational basis review. See id. at 2696 ( “no legitimate purpose overcomes the purpose and effect to disparage and to injure . . . .”). H owever, the scrutiny that the Court actually applied does not so much resemble 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 orientation 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 th e 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 theories support heightened review. Davis based its decision on a l ine of cases relying on Bowers v. Hardwick, 478 U.S. 186 (1986), which has since been overruled by Lawrence v. Texas. Lawrence, 539 U.S. 558, 578 (2003) (“Bowers was not correct when it was decided, and
11 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 Marriage 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 constitutionality of Section 3 of DOMA in federal court. The Windsor Court applied Fifth Amendment due process and equal protection analysis to the plaintiff’s challenge of a federal statute. O ur case involves a ch allenge to a s tate constitutional provision and state statutes, thus falling under the protections of the Fourteenth Amendment, which is subject to the same substantive analysis.
8

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it is not correct today.”).12 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., Nos. 11-17357, 11-17373, 2014 WL 211807, at *9 (9th Cir. Jan. 21, 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 distinguishing characteristics that define them as a d iscrete group, and relative political powerlessness. See Lyng v. Castillo, 477 U.S. 635, 638 (1986). Further, their common characteristic does not impair their ability to contribute to society. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440−41 (1985).
All of these arguments have merit. To resolve 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 (1967) (“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))); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (the right to marry is a central part of Due Process liberty); Maynard v. Hill, 125 U.S. 190, 205 (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. Connecticut, 381 U .S. 479, 486 ( 1965)
12 Indeed, one district court in this Circuit 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, No. 1:13-CV-501, 2013 WL 6726688, at *13 (S.D. Ohio Dec. 23, 2013).
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(marriage involves a “right of privacy older than the Bill of Rights”); M.L.B. v. S.L.J., 519 U.S. 102, 116 ( 1996) (“Choices about marriage . . . a re 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 (1971))).
Despite this comforting language, neither the Supreme Court nor the Sixth Circuit has stated that the fundamental right to marry includes a fundamental right to marry someone of the same sex. Moreover, Plaintiffs do not seek the right to marry in Kentucky. R ather, they challenge the State’s lack of recognition for their validly solemnized marriages.13
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 fundamental right, much less significantly interfered with one. Therefore, the Court will apply rational basis review. Ultimately, the result in this case is unaffected by the level of scrutiny applied.
C. Under this standard, the Court must determine whether these Kentucky laws are rationally related to a legitimate government purpose. 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. This standard is highly deferential to government activity but is surmountable, particularly in the context of discrimination 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,
13 Some courts have construed the right to marry to include the right to remain married. See, e.g., Obergefell v. Wymyslo, No. 1:13-CV-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013). The logic is that Kentucky’s laws operate to render Plaintiffs’ marriage invalid 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 *5−6.
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427 U.S. 495, 510 (1976)). This search for a rational relationship “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 ( 1996). Even under this most deferential standard of review, courts must still “insist on knowing the relation between the classification adopted and the object to be attained.” Id. at 632 (emphasis added).
III. In a d emocracy, the majority routinely enacts its own moral judgments as laws. Kentucky’s citizens have done so here. Whether enacted by a legislature or by public referendum, those laws are subject to the guarantees of individual liberties contained within the United States Constitution. Windsor, 133 S.Ct. at 2691; see e.g., Loving, 388 U.S. at 12 (statute prohibiting interracial marriage violated equal protection). Ultimately, the focus of the Court’s attention must be upon J ustice 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 marriages is instructive. F or the reasons that follow, the Court concludes that Kentucky’s laws are unconstitutional.
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 establishes certain principles that strongly suggest the result here.14
14 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).
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The first of those principles is that the actual 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. As described so well by substituting our particular circumstances 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 governmental efficiency.
Id. at 2694. The legislative history of Kentucky’s laws clearly demonstrates the intent to
permanently prevent the recognition of same-sex marriage in Kentucky.15 Whether that purpose
15 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 satisfies the obligation of this ordinance. . . . [I]n First Corinthians 7:2, if you notice the pronouns that are used in this scripture, 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 federal law as the legal union between one man and one woman. And while Kentucky’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. T here are similar laws across 38 states that express an overwhelming agreement in our country that we should be protecting the institute [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, Massachusetts will begin issuing marriage licenses to same-sex couples. . . . We in the legislature, I think, have no other choice but to protect our communities from the desecration of these traditional values. . . . Once this amendment passes, no activist judge, no legislature or county clerk whether in the Commonwealth or outside of it will be able to change this fundamental fact: the sacred institution of marriage joins together a man and a woman for the stability of society and for the greater glory of God. S. DEBATE, 108TH CONG., 2ND SESS. (Ky. 2004), ECF No. 38-6 at 1:00:30–1:05:10. Similarly, cosponsor state senator Gary Tapp proclaimed: For many years, Kentucky has had laws that define marriage as one man and one woman, and in 1998, the General Assembly did strengthen those laws ensuring that same-sex marriages performed in other states or countries would not be recognized here. . . . While we’re not proposing 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 definition 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 traditions of stable marriages and strong families. Id. at 1:05:43–1:07:45. The final state senator to speak on behalf of the bill, Ed Worley, said that the bill was not intended to be a discrimination bill. Id. at 1:26:10. However, he offered no other purpose other than reaffirming the historical and Biblical definition of marriage. See, e.g., id. at 1:26:20–1:26:50. One state senator, Ernesto Scorsone, spoke out against the constitutional amendment. He said: The efforts to amend the U.S. Constitution over the issue of interracial marriage failed despite repeated religious arguments and Biblical references. . . . The proposal today is a s hocking departure from [our constitutional] principles. . . . To institutionalize discrimination in our constitution is to turn the document
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also demonstrates an obvious animus against same-sex couples may be debatable. But those two motivations are often different sides of the same coin.
The second principle is that such an amendment 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]. T he differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558. Id. U nder Justice Kennedy’s logic, Kentucky’s laws burden the lives of same-sex spouses by preventing them from receiving certain state and federal 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 analysis 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.
on its head. To allow the will of the majority to forever close the door to a minority, 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. . . . Discrimination and prejudices will not survive the test of time. Id. at 1:16:07–1:24:00.
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B. The State’s sole justification for the challenged provisions is: “the Commonwealth’s public policy is rationally related to the legitimate government interest of preserving the state’s institution of traditional marriage.” Certainly, these laws do further that policy. That Kentucky’s laws are rooted in tradition, however, cannot alone justify their infringement on i ndividual liberties. See Heller v. Doe, 509 U.S. 312, 326 ( 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 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it th rough the centuries insulates it f rom 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 ( states cannot prohibit interracial marriage); Lawrence, 539 U .S. at 577−78 (states cannot criminalize private, consensual sexual conduct); Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 733−35 (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 S tate has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . . ’” Lawrence, 539 U.S. at 577 (quoting Bowers, 478 U.S. at 216 (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 (Scalia, J., dissenting) (emphasis in original). Usually, as here, the tradition behind the challenged law began at a time when most people did not fully appreciate, much less articulate, the individual rights in question. For years,
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many states had a tradition of segregation and even articulated reasons why it created a better, more stable society. Similarly, many states deprived women of their equal rights under the law, believing this to properly 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. The Family Trust Foundation of Kentucky, Inc. submitted a brief as amicus curiae which cast a broader net in search of reasons to justify Kentucky’s laws. It offered additional purported legitimate interests including: responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the optimal childrearing environment, and proceeding with caution 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-Windsor, and most courts pre-Windsor. See, e.g., Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013, at *28–33 (N.D. Okla. Jan. 14, 2014) (responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the ideal family unit, and avoiding changes to the institution of marriage and unintended consequences); Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 6697874, at *25–27 (D. Utah Dec. 20, 2013) (responsible procreation, optimal childrearing, proceeding with caution); Obergefell v. Wymyslo, No. 1:13CV-501, 2013 WL 6726688, at *20 (S.D. Ohio Dec. 23, 2013) (optimal childrearing). The Court fails to see how having a family could conceivably harm children. Indeed, Justice Kennedy
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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. T he 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. 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. Kentucky 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 procreation 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 cannot withstand traditional rational basis review.
D. 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 conclusions similar to those of this Court. After the Massachusetts Supreme Judicial Court led the way by allowing same-sex couples to
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marry, five years later the Connecticut Supreme Court reached a similar conclusion regarding its state constitution on equal protection grounds. Kerrigan v. Comm’r of Pub. Health, 957 A .2d 407, 482 (Conn. 2008). Other courts soon began to follow. See Varnum v. Brien, 763 N.W.2d 862, 907 ( Iowa 2009) (holding that banning same-sex marriage violated 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 s ame-sex marriage enacted via popular referendum violated the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution) aff’d sub nom. Perry v. Brown, 671 F .3d 1052 (9th Cir. 2012) vacated and remanded sub nom. Hollingsworth v. Perry, 133 S.Ct. 2652 (2013); Garden State Equality v. Dow, 82 A.3d 336, 367−68 (N.J. Super. Ct. Law Div. 2013) (holding that disallowing same-sex marriage violated the New Jersey Constitution, and the governor withdrew the state’s appeal); Griego v. Oliver, No. 34,306, 2013 WL 6670704, at *3 (N.M. Dec. 19, 2013) (holding that denying same-sex couples the right to marry violated the state constitution’s equal protection clause).
Over the last several months alone, three federal district courts have issued well-reasoned opinions supporting the rights of non-heterosexual persons to marriage equality in similar circumstances. See Bishop, 2014 W L 116013, at *1 (holding that the state’s ban on same-sex marriage violated the Equal Protection Clause of the Fourteenth Amendment); Obergefell, 2013 WL 6726688, at*1 (holding that Ohio’s constitutional and statutory ban on t he recognition of same-sex marriages validly performed out-of-state was unconstitutional as applied to Ohio death certificates); Kitchen, 2013 WL 6697874, a t *1 ( holding that the state’s constitutional and statutory ban on same-sex marriage violated the Equal Protection and Due Process clause of the Fourteenth Amendment).
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Indeed, to date, all federal courts that have considered same-sex marriage rights postWindsor have ruled in favor of same-sex marriage rights. This Court joins in general agreement with their analyses.
IV. For many, a case involving these issues prompts some sincere questions and concerns. After all, recognizing same-sex marriage clashes with many accepted norms in Kentucky—both in society and faith. To the extent courts clash with what likely remains that majority opinion here, they risk some of the public’s acceptance. For these reasons, the Court feels a s pecial obligation to answer some of those concerns.
A. Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable 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. O nce the government defines marriage and attaches benefits to that definition, it mu st do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. A ssigning 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.
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The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully 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.
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? M ust churches now marry same-sex couples? How will this decision change or affect my marriage? First, the Court was not presented with the particular question whether Kentucky’s ban on same-sex marriage is constitutional. However, there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question. Second, allowing same-sex couples the state recognition, benefits, and obligations of marriage does not in any way diminish those enjoyed by opposite-sex married couples. No one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages, individually or collectively. One’s belief to the contrary, however sincerely held, cannot alone justify denying a selected group their constitutional rights. Third, no c ourt can require churches or other religious institutions to marry same-sex couples or any other couple, for that matter. T his 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.
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C. Many people might assume that the citizens 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 s o, unless they encroached on a s pecific federal power. See Barron v. City of Baltimore, 32 U.S. 243, 250−51 (1833). However, in 1868 our country adopted the Fourteenth Amendment, which prohibited state governments from infringing upon our individual rights. O ver 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 other fundamental rights applicable to state governments. 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 (1884) (Harlan, J., dissenting). He wrote that the Fourteenth Amendment “added greatly to the dignity 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 process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’” Plessy v. Ferguson, 163 U .S. 537, 555 (1896) (Harlan, J., dissenting) (quoting U.S. CONST. amend. XIV). 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
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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, 5 U.S. 137, 177 (1803). Initially that decision typically rests with one judge; ultimately, 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. F or instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly? The answer is that the right to equal protection of the laws is not new. H istory has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves.16 If this were not so, many practices that we now abhor would still exist. Contrary to how it ma y seem, there is nothing sudden about this result. T he 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. T he 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).
16 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 principles in their own search for greater freedom.
539 U.S. at 578−79.
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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 b are . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’” Id. at 634−35 (emphasis in original) (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). 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. 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 because courts usually answer only the questions that come before it. J udge Oliver Wendell Holmes aptly described this process: “[J]udges do and must legislate, 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 (1917) (Holmes, J., dissenting). In Romer, Lawrence, and finally, Windsor, the Supreme 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
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Case 3:13-cv-00750-JGH Document 47 Filed 02/12/14 Page 23 of 23 PageID #: 746 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.
February 12, 2014
cc: Counsel of Record
23

 
 Case 3:13-cv-00750-JGH Document 48 Filed 02/12/14 Page 1 of 1 PageID #: 747

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:13-CV-750-H

GREGORY BOURKE, et al.

PLAINTIFFS

V.

STEVE BESHEAR, et al.

DEFENDANTS

ORDER

The Court having issued a Memorandum Opinion and being otherwise sufficiently

advised,

IT IS HEREBY ORDERED that to the extent K.R.S. 402.005, .020, .040, and .045 and

Section 233A of the Kentucky Constitution deny validly married same-sex couples equal

recognition and benefits under Kentucky and federal law, they violate the Equal Protection

Clause of the Fourteenth Amendment of the United States Constitution.

The Court will set a hearing in the near future to discuss the appropriate form of relief

and the timing of its effect.

This is not a final order.

February 11, 2014
cc: Counsel of Record

 
 Case 3:13-cv-00750-JGH Document 55 Filed 02/27/14 Page 1 of 1 PageID #: 773

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:13-CV-750-H
GREGORY BOURKE, et al.
V.
STEVE BESHEAR, et al.

PLAINTIFFS DEFENDANTS

ORDER The parties and the Court having discussed the Court’s Memorandum Opinion and its Order dated February 12, 2014; no party having objection to the entry of a final order consistent with it; and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED that to the extend K.R.S. 402.055, .020, .040, and .045 and Section 233A of the Kentucky Constitution act to deny validly married same-sex couples equal recognition and benefits under Kentucky and federal law, those laws violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and they are void and unenforceable. This is a final and appealable order.

February 26, 2014
cc: Counsel of Record

 
 Case 3:13-cv-00750-JGH Document 91 Filed 07/01/14 Page 1 of 19 PageID #: 1289

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

CIVIL ACTION NO. 3:13-CV-750-H

TIMOTHY LOVE, et al.

PLAINTIFFS

V.

STEVE BESHEAR

DEFENDANT

MEMORANDUM OPINION AND ORDER

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, 3:13-CV-750-

H, 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, 133 S.Ct.

2675 (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

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.

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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 2014 WL 556729, at *1−2. 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.
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.
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).
2

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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.
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.
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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, 2014 WL 556729, at *2−3 (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 oppositesex 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.
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.
4

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II. Before reaching the constitutional issues, the Court must address Defendant’s preliminary argument that Baker v. Nelson, 409 U.S. 810 (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. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). Such a summary dismissal is usually binding precedent, see Mandel v. Bradley, 432 U.S. 173, 176 (1977), unless doctrinal developments indicate that the Court would rule differently now, see Hicks v. Miranda, 422 U.S. 332, 344 (1975). Today, it is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge. 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, 635−36 (1996). Shortly thereafter, Lawrence v. Texas invalidated under the Due Process Clause a state law criminalizing homosexual sodomy. 539 U.S. 558, 578 (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, 178−79 (2d Cir. 2012). The Court’s silence
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, 3:13-CV-750-H, 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014). Therefore, the precedential value of Baker was not at issue.
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supports a view that Baker is a dead letter.7 See Wolf v. Walker, 14-CV-64-BBC, 2014 WL
2558444, at *5 (W.D. Wis. June 6, 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.
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 (1978) (quotation
omitted). If a statutory classification “significantly interferes with the exercise of [a
fundamental] right,” heightened scrutiny applies. Id.
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 (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
7 In addition, at the oral argument for Windsor’s companion case Hollingsworth v. Perry, 133 S.Ct. 2652 (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, 133 S.Ct. 2652 (2013) (No. 12−144), available at 2013 WL 1212745. 8 See, e.g., Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044, at *10 (10th Cir. June 25, 2014); Baskin v. Bogan, 1:14-CV-00355-RLY-TAB, 2014 WL 2884868, at *6 (S.D. Ind. June 25, 2014); Wolf v. Walker, 14-CV-64-BBC, 2014 WL 2558444, at *6 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, 1:13-CV-1861, 2014 WL 2058105, at *6 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber, 6:13-CV-01834-MC, 2014 WL 2054264, at *1 n.1 (D. Or. May 19, 2014); Latta v. Otter, 1:13-CV-00482-CWD, 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 postWindsor 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.
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rational basis for the classification, and the state need not present any evidence. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
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 (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, 371−72 (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.
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 (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 right—a question that neither the Supreme Court nor the Sixth Circuit has answered. 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 (1967) (marriage is a “fundamental freedom”); Skinner v.
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Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (marriage is “one of the basic civil rights”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (the right to marry is a central part of Due Process liberty); Maynard v. Hill, 125 U.S. 190, 205 (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 (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 (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 (1971))).
Most of our liberty interests—e.g. privacy, autonomy, procreation, travel—exist independent of the government. By contrast, civil marriage and the government are inseparable. The state institution of marriage—the issuance of marriage licenses and the distribution of benefits based on marital status—has 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, 720−21 (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, Zablocki, 434 U.S. 374, and, most recently, Turner v. Safley, 482 U.S. 78 (1987). Loving declared Virginia’s anti-miscegenation law unconstitutional on both equal protection and due process grounds. See 388 U.S. at 11−12. Zablocki held that a state statute requiring a father to pay his past-due court-ordered child support payments before marrying violated the Equal
8

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Protection Clause. See 434 U.S. at 390−91. Turner found that prisoners retain their fundamental right to marry. See 482 U.S. at 95. 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 95−96. 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?
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, and Windsor, 133 S.Ct. 2675. Both of these postdate the Supreme Court’s major rightto-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.
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
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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 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, 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 (1986). The Supreme Court unambiguously repudiated Bowers in its 2003 Lawrence decision. See 539 U.S. at 578 (“Bowers was not correct when it was decided, and it is not correct today.”); id. at 575 (“[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.
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 (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 2014 WL 556729, at *4−5.
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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. 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 (1986); (2) the ability to contribute to society, see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440−41 (1985); (3) immutable defining characteristics, see Lyng, 477 U.S. at 638; and (4) political powerlessness, see id.11 For the reasons that follow, the Court concludes that gay and lesbian persons are a disadvantaged class. 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 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, 2014 WL
11 Since Windsor, every court to consider these factors has concluded that each applies to homosexual persons. See, e.g., Wolf, 2014 WL 2558444, at *27−29; Whitewood, 2014 WL 2058105, at *11−14. 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 (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 (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)).
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2558444, at *28; see also Griego v. Oliver, 2014-NMSC-003, 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. 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, 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, 2014 WL 2558444, at *29. Under this inquiry, Kentucky’s laws against homosexual persons are “Exhibit A” of this powerlessness.
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2. 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 fully explained how to distinguish between suspect and quasi-suspect classes. Among the protected classifications, sexual orientation seems most similar to the quasisuspect 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 (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 (1976) (applying intermediate scrutiny to gender classifications); Frontiero v. Richardson, 411 U.S. 677, 685−86 (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 184−85 (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, 2014 WL 2558444, at *29; Whitewood v. Wolf, 1:13-CV-1861, 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,
13 Of course, national origin and alienage are often not apparent and yet are suspect classifications.
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discrimination . . . in the political arena.” Windsor, 699 F.3d at 184 (quoting Frontiero, 411 U.S. at 685−86) (internal quotation marks omitted).
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 quasisuspect.” 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, 2014 WL 2058105, at *14; Wolf, 2014 WL 2558444, at *29. Quasi-suspect classes are given intermediate scrutiny. See Clark, 486 U.S. at 461. 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 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
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, 3:13-CV-750-H, 2014 WL 556729, at *6−7 (W.D. Ky. Feb. 12, 2014). The Court identified two principles from Justice Kennedy’s opinion. The first is that “the actual 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 *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 samesex couples. See id. 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 *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.
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Mathews, 427 U.S. at 510). Courts “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632. This “ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 633.
A. 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 procreationbased arguments have not succeeded in this Court, see Bourke, 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 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.
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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 samesex 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.” 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 (1993) (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)) (internal quotation marks omitted). However, that Kentucky’s laws do not deny licenses to other nonprocreative couples reveals the true hypocrisy of the procreation-based argument. Cf. Bishop, 962 F. Supp. 2d at 1291−92 (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,
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 arguments—chiefly, responsible procreation and child-rearing, steering naturally procreative relationships into stable unions, and promoting the optimal childrearing environment—that this Court in Bourke and other federal courts have rejected. See 2014 WL 556729, at *8. The Court sees no need to readdress these arguments and incorporates its Bourke discussion by reference.
16

Case 3:13-cv-00750-JGH Document 91 Filed 07/01/14 Page 17 of 19 PageID #: 1305
473 U.S. at 448, as explained by Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (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. 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, 1:14-CV-00355-RLY-TAB, 2014 WL 2884868, at *13 (S.D. Ind. June 25, 2014); Geiger v. Kitzhaber, 6:13-CV-01834-MC, 2014 WL 2054264, at *13 (D. Or. May 19, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757, 764−65 (E.D. Mich. 2014); Bishop, 962 F. Supp. 2d at 1291; Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1211−12 (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 2014 WL 556729, at *10−12. All those comments are equally true today.
17

Case 3:13-cv-00750-JGH Document 91 Filed 07/01/14 Page 18 of 19 PageID #: 1306
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.
On the other side, many responses reinforced in very personal ways how unconstitutional discrimination 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. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014); Baskin, 2014 WL 2884868; Wolf, 2014 WL 2558444; Whitewood, 2014 WL 2058105; Geiger, 2014 WL 2054264; Latta v. Otter, 1:13-CV-00482-CWD, 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”
18

Case 3:13-cv-00750-JGH Document 91 Filed 07/01/14 Page 19 of 19 PageID #: 1307
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. Date: JJuullyy 11,, 22001144
cc: Counsel of Record
19

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:13-CV-750-H

TIMOTHY LOVE, et al. V. STEVE BESHEAR

MEMORANDUM OPINION

PLAINTIFFS DEFENDANT

Plaintiffs move for attorney’s fees in the amount of $66,235.00 and costs in the amount of $453.00 in connection with their successful 42 U.S.C. § 1983 claim. Prevailing parties under § 1983 are entitled to an award of reasonable attorney’s fees. 42 U.S.C. § 1988. On February 26, 2014, the Court issued a final order declaring that K.R.S. 402.055, .020, .040, .045 and Section 233A of the Kentucky Constitution violate the Equal Protection Clause of the Fourteenth Amendment of the United States to the extent that they deny validly married same-sex couples equal recognition and benefits under Kentucky and federal law. Consequently, Plaintiffs are “prevailing parties” within the meaning of § 1988.1 See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“ ‘[P]laintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278−79 (1st Cir. 1978))).

1 The prevailing parties are Plaintiffs named in the Amended Complaint filed on November 15, 2013. ECF No. 31 (naming Gregory Bourke and Michael Deleon, and their minor children; Jimmy Lee Meade and Luther Barlowe; Randell Johnson and Paul Campion, and their minor children; and Kimberly Franklin and Tamara Boyd). The prevailing parties do not include Intervening Plaintiffs named in the Intervening Complaint filed on February 27, 2014. ECF No. 54 (naming Timothy Love, Lawrence Ysunza, Maurice Blanchard, and Dominique James). This case was restyled on February 27, 2014. ECF No. 57.

Defendant2 argues that the motion should be denied without prejudice or held in
abeyance pending resolution of the appeal on the merits currently before the Sixth Circuit. He
also objects to certain expenses, including (1) fees related to media and public relations, (2) fees
related to the intervening plaintiffs, (3) unnecessary fees, and (4) redundant fees from
overstaffing. Finally, he argues that any award of fees and costs should be stayed pending
appeal.
This was a difficult, novel case in which Plaintiffs’ counsel showed considerable skill and
determination. Counsel’s hourly rate of approximately $250, and their total hours of 275.54, was
most certainly reasonable. In fact, the total seems quite modest. Because Plaintiffs undertook a
difficult, unpopular case and achieved remarkable success, the Court concludes that counsel is
entitled to a small bonus to account for this risk. The Court will now consider Defendant’s
specific objections.
First, the Court agrees that media and public relations expenses are not properly included
in the calculation of Plaintiffs’ attorney’s fees. See Halderman by Halderman v. Pennhurst State
Sch. & Hosp., 49 F.3d 939, 942 (3d Cir. 1995) (“[t]he legitimate goals of litigation are almost
always attained in a courtroom, not in the media.” (quoting Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 176 (4th Cir. 1994))); Hopwood v. Texas, 999 F. Supp. 872, 912−13
(W.D. Tex. 1998) (denying requests for fees related to public and media relations), aff’d in part, rev’d in part sub nom. 236 F.3d 256, 280−81 (5th Cir. 2000).3 Second, the Court agrees that fees
2 Former Defendant Attorney General Jack Conway also filed a response to Plaintiff’s motion but was previously dismissed as a Defendant in this case by the Court’s March 24, 2014 Order. The Court therefore cannot consider Defendant Conway’s response. 3 Even if the Court were to consider allowing media-related expenses, the interactions with the media in this case were not “reasonably necessary for the proper prosecution of the lawsuit.” Gratz v. Bollinger, 353 F. Supp. 2d 929, 941 (E.D. Mich. 2005) (quoting Keyes v. Sch. Dist. No. 1, Denver, Colorado, 439 F. Supp. 393, 408 (D. Colo. 1977)) (internal quotation marks omitted). Plaintiffs’ counsel contend that their efforts were aimed to “educate the public.” Counsel have not shown that these efforts assisted in the litigation. Compare Davis v. City & County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992) (finding attorney’s fees for lobbying the San Francisco Board of

related to the Intervening Plaintiffs, who have not yet been successful on the merits, are not properly included. See Hanrahan v. Hampton, 446 U.S. 754, 756 (1980).4
However, some of the entries cited by Defendant in its Response include both objectionable and unobjectionable activities. The February 26, 2014 media and public relations entry reads: “Prep hearing for prelim inj/intervention; attend hearing; media contact.” To the extent that the four hours billed relate to the Intervening Plaintiffs or to media contact, they should be excluded. For ease, the Court will award half of the billed amount, or $500, instead of $1000. Similarly, the February 28, 20145 entry reads: “Prep/research & telephonic hearing on Motion to Stay; corresp w/ counsel; media contact.” To the extent the three hours billed relate to media contact, they should be excluded. Again for ease, the Court will award two thirds of the billed amount, or $500, instead of $750.
As to Defendant’s third objection, Plaintiffs’ counsel properly included expenses incurred while traveling to observe proceedings in related cases. With a case such as this one that presents novel issues, and in which many plaintiffs are involved, the Court does not find staffing multiple attorneys on a single telephonic hearing deciding the important issue of whether the Court would grant a stay of its final order in the case objectionable.
Supervisors was vital to the ultimate employment discrimination consent decree and thus compensable), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993); Keyes, 439 F. Supp. at 408 (finding in a public school desegregation case that time spent using the news media to reach some hard-to-reach segments of the plaintiff class was compensable). 4 Should the Intervening Plaintiffs succeed on their claims, counsel may request attorney’s fees and costs related to Intervening Plaintiffs occurring prior to the Court’s February 26, 2014 Order. 5 The entry provided by Plaintiffs’ counsel and cited by Defendant is dated 2013 instead of 2014. The Court assumes this is a scrivener’s error.

Therefore, the award of attorney’s fees and costs to Plaintiffs’ counsel will be reduced by $3,600, the amount attributable to media and public relations,6 and by a further $2,310, the amount attributable to work performed on behalf of the Intervening Plaintiffs.
The Court will award a $10,000 bonus to account for Plaintiffs’ risk and success in this litigation. In the interest of judicial economy, execution on this order will be stayed until the Sixth Circuit appeal is resolved.
Being otherwise sufficiently advised, IT IS HEREBY ORDERED that Plaintiffs’ motion for attorney’s fees and costs is SUSTAINED and Plaintiffs are awarded $70,325.00 for attorney’s fees and $453.00 for costs. IT IS FURTHER ORDERED that this order is STAYED pending the resolution of Defendant’s appeal before the Sixth Circuit Court of Appeals. Date:
MMaayy 1133,, 22001144
cc: Counsel of Record
6 This amount is the total amount objected to by Defendant, $4,350, minus the Court’s disallowances, $750, for a total of $3,600 to be deducted from Plaintiffs’ award of attorney’s fees.

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

GREGORY BOURKE, et al.

PLAINTIFFS

and

TIMOTHY LOVE, et al.

INTERVENING PLAINTIFFS

v.

CIVIL ACTION NO. 3:13-CV-00750-CRS

STEVE BESHEAR, et al.

INTERVENING DEFENDANTS MEMORANDUM OPINION

Plaintiffs move for attorney fees and costs in connection with their successful 42 U.S.C. § 1983 claim.1 Plaintiffs request:
1. Attorney fees in the amount of $1,126,664.27,2 2. Costs in the amount of $32,727.86, and 3. Enhancement to their requested attorney fees by a factor of 75% above their
services for which they billed.

For the reasons stated in this opinion, this Court will award Plaintiffs:

1. Attorney fees in the amount of $1,082,905.10 and 2. Costs in the amount of $32,727.86.

In total, the Court will award Plaintiffs $1,115,632.96 in attorney fees and costs.

1 The Court notes Plaintiffs and Defendants filed briefs to this Court plagued by problematic calculations. Plaintiffs provided multiple inconsistent summaries of attorney fees and costs that never totaled the amount Plaintiffs requested in their motion. See infra n.4. Therefore, the Court will construe Plaintiffs’ request for attorney fees and costs at the lowest amount based on figures in their supporting memorandum. Id. 2 See infra n.4.
1

The Court declines to award Plaintiffs a fee enhancement because awarding legal fees in excess of the fees actually earned and documented would be unwarranted in this case. The requested attorney fees without an enhancement already account for the attorneys’ skill, experience, labor, and success.
Courts award enhanced attorney fees under rare circumstances when an enhancement is necessary to determine a reasonable fee for the services rendered. Courts only award this enhancement when an exceptional factor is present, such as when counsel cannot be obtained without a potential for upward adjustment or counsel takes a significant risk in undertaking the litigation. That was not the case here. While the Plaintiffs were successful in this litigation, they also enjoyed widespread support at the same time many attorneys in other districts took up similar litigation.3
In this matter, the law firms of Clay Daniel Walton Adams, PLC and Fauver Law Firm, PLLC were local counsel. Local counsel attorneys included Daniel Canon, Laura Landenwich, L. Joe Dunman, Dawn Elliott, and Shannon Fauver. Local counsel associated with experienced appellate practitioners after the district court phase of litigation, including the American Civil Liberties Union Foundation (“ACLU”) and the Stanford Law School Supreme Court Litigation Clinic. These practitioners included James Esseks, Chase Strangio, and Joshua Block of the ACLU, and Jeffrey L. Fisher of the Stanford Law School Supreme Court Litigation Clinic. On June 26, 2015, the United States Supreme Court issued its opinion in this matter under the name
3 Indeed, it is notable that states defending this and similar lawsuits had a difficult time finding experienced counsel. As Adam Liptak reported in the New York Times, “Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms…. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.” Adam Liptak, “The Case Against Gay Marriage: Top Law Firms Won’t Touch It,” The New York Times (April 11, 2015).
2

Obergefell v. Hodges. Plaintiffs succeeded on all claims and the parties do not dispute Plaintiffs are “prevailing parties” under Section 1983.
DISCUSSION
1. The Lodestar Method
The Court may “allow the prevailing party … a reasonable attorney’s fee as part of the costs” in various civil rights suits, including those brought under Section 1983. 42 U.S.C. § 1988(b). In vindicating these civil rights, the plaintiff serves “as a private attorney general, vindicating a policy that Congress considered of the highest priority.” Waldo v. Consumers Energy Co., 726 F.3d 802, 824 (6th Cir. 2013) (quoting Fox v. Vice, 131 S. Ct. 2205, 2213 (2011) (internal quotations and citations omitted)). Fee shifting serves the dual purpose of reimbursing a plaintiff for vindicating civil rights and holding the violator accountable. See Fox, 131 S. Ct. at 2213.
The Court calculates attorney fees with a two-step process. See Perry v. Autozone Stores, Inc., No. 14-5185, 2015 WL 4940121, at *1 (6th Cir. Aug. 20, 2015) (citing Jordan v. City of Cleveland, 464 F.3d 584, 602 (6th Cir.2006)). First, the Court determines a reasonable attorney fee based on the “lodestar” amount. Perry, 2015 WL 4940121, at *1. The lodestar amount is “calculated by multiplying the number of hours reasonably spent on the case by an appropriate hourly rate in the relevant community for such work.” Id. “To arrive at a reasonable hourly rate, courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004).
3

The Court may then, within its discretion, “adjust the lodestar to reflect relevant considerations peculiar to the subject litigation.” Perry, 2015 WL 4940121, at *1 (quoting Adcock–Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000)) (internal quotations omitted). Although not exclusive, the Court may consider twelve factors in determining whether an adjustment is necessary:
(1) the time and labor involved; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Perry, 2015 WL 4940121, at *1 (quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)). Although this Court “enjoys wide discretion in awarding attorneys fees,” the Court is guided by a concern of reasonableness. Barnes v. City of Cincinnati, 401 F.3d 729, 746 (6th Cir. 2005); see also Perry, 2015 WL 4940121, at *1. The award should “roughly approximate[] the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010). The Court strives to reimburse the successful plaintiff, but not overcompensate the attorneys for their efforts. See Reed v. Rhodes, 179 F.3d 453, 471-72 (6th Cir. 1999).
2. The Lodestar Amount
Plaintiffs inconsistently represent the total amount of attorney fees they seek. While their second motion for attorney fees and costs says the amount is $2,091,297.34, multiple summaries
4

of the relevant fees included in the memorandum supporting the motion fall below this amount.
See Pls.’ Mem. Supp. Mot. Attorney’s Fees & Costs 1-2, ECF No. 150-1; id. 10; Proposed Order,
ECF No. 150-20. Indeed, Defendants pointed out some of these inconsistencies in their response
to the motion. See Defs.’ Resp., ECF No. 110. Due to Plaintiffs’ failure to address these
inconsistencies and miscalculations, the Court will construe Plaintiffs’ request for attorney fees
and costs at the lowest amount based on figures in their supporting memorandum: $2,002,657.83.4 This figure includes $1,124,354.27 of newly requested attorney fees. Defendants
raise numerous objections to the reasonableness of the fees included in that amount. The Court
will discuss each objection in turn.
a. Whether Plaintiffs Overstaffed Attorneys to Prepare Supreme Court Briefs
Defendants, relying on a district court case from another district within a different circuit,
first argue that the use of nine attorneys, including the director of the Stanford Supreme Court
Litigation Clinic, Jeffrey Fisher, to prepare Supreme Court briefs was unnecessary. Plaintiffs
submitted time entries for nine attorneys relating to drafting, reviewing, editing, and conferring
to produce the petition for certiorari reply brief, merits brief, and merits reply brief. Defendants
do not contest Fisher’s involvement, but do contest portions of the other eight attorneys’
submitted entries. Defendants argue that the issues involved in the case were not new or novel,
that previous courts had already issued opinions on questions raised, and that the Stanford
4 This calculation comes from Plaintiffs’ stated attorney fees and costs in their introduction to the supporting memorandum. Pls.’ Mem. Supp. Mot. Attorney’s Fees & Costs 1-2. Plaintiffs say the attorney fees are as follows: $543,405.27 (Clay Daniel Walton Adams, PLC); $219,150.00 (Fauver Law Firm, PLLC); $206,924.00 (American Civil Liberties Union Foundation); and $154,875.00 (Jeffrey L. Fisher and the Stanford Law School Supreme Court Litigation Clinic). Id. Plaintiffs also request an additional $2,310 for attorney fees related to the Intervening Plaintiffs’ intervening petition. See id. 7, n.1. Further, Plaintiffs say the costs are as follows: $18,948.87 (Clay Daniel Walton Adams, PLC); $5,978.83 (Fauver Law Firm, PLLC); and $7,800.16 (American Civil Liberties Union Foundation). Id. 1-2. This results in $1,124,354.27 in requested attorney fees, before the 75% modifier, $2,310 in requested attorney fees relating to work related to the intervening petition, and $32,727.86 in requested costs. After the requested 75% modifier is applied to $1,124,354.27, the total requested amount is $2,002,657.83.
5

Supreme Court Litigation Clinic and outside counsel provided free legal services in addition to the nine attorneys. This objection amounts to $147,5955 of the attorney fees sought.
The Court does not find Defendants’ arguments persuasive. It is reasonable for local counsel to continue active involvement with the litigation even after associating with a Supreme Court specialist. While Defendants have not contested what they believe to be “original drafting,” Defs.’ Resp. 10, it is reasonable to have multiple individuals revising and reworking a draft brief. Brief writing is often a collaborative process. Indeed, Fisher only billed 206.5 hours for the certiorari reply brief, merits brief, and merits reply brief. Fisher Time Sheet, ECF No. 110-1. The eight other attorneys spent a total of 390.95 hours drafting, reviewing, editing, and conferring to produce three appellate briefs. Defs.’ Resp. 10. Three of those eight attorneys spent less than 27 hours together on those tasks. Id. Another attorney only spent 35.9 hours working on the three briefs. Id. Hence, the majority of the hours Defendants now challenge were from four attorneys, not eight. These are reasonable costs. Defendants hyperbolize non-existent overbilling by focusing on the number of attorneys staffed and not the hours those attorneys billed.
Defendants’ argument that the issues were not new or novel is also misplaced. The existence of previous court decisions concerning similar issues does not limit Plaintiffs to only one attorney to produce three appellate briefs. Although Fisher did have pro bono assistance from students and other attorneys, this should not diminish the fees the billing attorneys now seek.
The Court will deny Defendants’ challenge to $147,595 of the requested attorney fees.
5 Defendants’ response contains a calculation error relating to the fees they dispute. Although they claim to challenge $173,695 on overstaffing grounds, Defendants included an errant “0” for the “Canon/Landenwich” time entry. See Defs.’ Resp. 10. Accounting for this error, Defendants’ challenge $147,595 of the sought attorney fees. Regardless, this error is immaterial to the Court’s decision.
6

b. Whether Plaintiffs Charged for Too Many Attorneys to be in Washington, D.C. Defendants argue that the six attorneys and one paralegal constitute an excessive number
of attorneys and staff traveling to and working in Washington, D.C. during the week of Supreme Court oral argument. This objection amounts to $73,830 of the attorney fees sought.
Similar to Defendants’ arguments concerning the staffing on the appellate briefing, challenging the number of attorneys or staff members assisting with a particular task misses the mark. While Defendants do mention particular tasks that these individuals performed while in Washington, D.C., Defendants do not elaborate on why these entries are unreasonable.
Plaintiffs explain that while Canon, counsel of record for the Kentucky plaintiffs, did attend each moot court, the other members of the legal team did not. Instead, these individuals arrived later to assist with oral argument preparation. As Plaintiffs point out, none of these attorneys argued before the Supreme Court concerning this case. Just as with brief writing, however, preparation for oral argument often requires more than the individual oralist. The immediate feedback provided by attorneys and staff on the ground in Washington, D.C. while oralists were preparing for argument allowed local counsel to advocate for their clients and “shap[e] the direction and substance of oral argument.” Pls.’ Reply 6, ECF No. 111.
The Court will deny Defendants’ challenge to $73,830 of the requested attorney fees. c. Whether Charging for Meetings with Co-Counsel in California is Reasonable
Defendants argue that it was unreasonable for Plaintiffs to charge for five local attorneys to travel to California with their clients to meet with co-counsel. Defendants say that the purpose
7

of the trip is unclear and that there is no justification to travel to California instead of digitally conferencing with co-counsel. This objection amounts to $45,817.50 of the attorney fees sought.
Although meetings with co-counsel for a reasonable purpose related to litigation may be an acceptable billing expense, it is unclear from the tendered entries the purpose of these meetings. Plaintiffs also fail to illuminate these entries in their reply brief. Without a more detailed description, the entries as submitted are not reasonable expenses.
The Court must also determine the proper amount of unreasonable fees. While Defendants object to $45,817.50 in attorney fees, some of the entries contested contain multiple tasks that are reasonable and do not relate to travel, or meetings with co-counsel or amici. The reasonable entries relate to brief editing and review, and correspondence related to those tasks. See Defs.’ Resp. 12-13. The Court will subtract from Defendants’ challenge $1,185 in fees related to Landenwich’s entries and $5,583.33 related to Elliot and Fauver’s entries, which appear to be reasonable and proper.
The Court will deny Plaintiffs’ request for $39,049.17 of the requested attorney fees.
d. Whether Charging for Time Resolving Conflicts with Counsel in Joined Cases is Reasonable Defendants argue that Plaintiffs unreasonably charged for settling a dispute between
counsel representing parties joined for Supreme Court oral argument. This dispute related to which oralist would present one of the issues. This objection amounts to $64,780 of the attorney fees sought.
The Supreme Court joined cases from four states prior to oral argument. The Supreme Court only allowed one oralist to argue each of the two questions the briefs addressed. While counsel from each case may have preferred to present oral argument, the Supreme Court required
8

counsel to agree on only two oralists. Under these involuntary constraints, Plaintiffs reasonably sought to have the best oralist argue each issue. The attorneys, however, initially differed on which attorney would advocate on the first question. In order to determine the oralist, counsel met to determine which attorney would best ensure exemplary presentation of the case. The Court finds billing for this time is reasonable. Counsel did not seek out an alternative advocate, but were compelled by the Supreme Court to compromise with involuntarily joined counsel. In achieving this compromise, they protected their clients’ interests.
The Court will deny Defendants’ challenge to $64,780 of the requested fees.
e. Whether Charging for Media-Related Expenses is Reasonable
Defendants argue that Plaintiffs fees for media-related expense are unreasonable. Plaintiffs argue these media appearances were essential to effective representation. This objection amounts to $4,710 of the attorney fees sought.
The Court reiterates Judge Heyburn’s previous ruling that “media and public relations expenses are not properly included in the calculation of Plaintiffs’ attorney’s fees.” ECF No. 85. These expenses were not “reasonably necessary for the proper prosecution of the lawsuit.” Gratz v. Bollinger, 353 F. Supp 2d 929, 941 (E.D. Mich. 2005) (quoting Keyes v. Sch. Dist. No. 1, Denver, Colo., 439 F. Supp. 393, 408 (D. Colo. 1977) (internal quotation omitted)). Plaintiffs admit their efforts were aimed to “humaniz[e] them in front of national and international audiences” and assist in the “broader social discourse.” Pls.’ Second Mot. Atty.’s Fees & Costs, 16. While it may also be true that media inquiries were numerous from an interested public, answering these inquiries cannot be considered necessary for the proper litigation of the suit.
9

The Court will deny Plaintiffs $4,7106 of the requested attorney fees.
f. Whether the Hourly Rates of Fisher and the ACLU are Reasonable
Beyond local counsel, Plaintiffs request attorney fees for Fisher, Esseks, and two other ACLU attorneys. Local counsel associated with these experienced Supreme Court practitioners prior to submitting their petition for certiorari to the Supreme Court. Plaintiffs seek $750 per hour for Fisher’s services, $700 per hour for Esseks’ services, and $400 and $325 per hour for the other ACLU attorneys’ services. Defendants do not challenge the tasks associated with the fees, but request a substantial fee rate reduction for each of these attorneys. This objection amounts to $158,860.50 of the attorney fees sought.
Defendants do not object to the qualifications of these attorneys or the need for local counsel to associate with experienced Supreme Court practitioners. Rather, Defendants argue that the fees sought are too high. Defendants point to the fees Mary Bonato, who is Counsel and Civil Rights Project Director for Gay & Lesbian Advocates & Defenders, charged for her service in the joined Michigan case. Bonato requested $350 per hour of service. Furthermore, Defendants also argue that Plaintiffs do no cite a single case where fee shifting in a similar civil matter resulted in fees this high.
Defendants’ arguments, however, miss the point. The lodestar analysis focuses on the prevailing rate for practitioners in the relevant community for such work, not the rate for one chosen attorney in a particular joined case.7 Defendants’ secondary argument that Plaintiffs have
6 Plaintiffs’ billing entries sometimes include a total amount of time billed for multiple tasks without listing the amount of time billed for discrete tasks. Where this has occurred and Defendants’ object to some, but not all, of the block billed tasks, Defendants have estimated the time for those discrete tasks it challenges. See Defs.’ Resp. 15-16. 7 Notably, the attorney, Mary Bonato, that the Defendants urge as the parallel to Fisher had not previously presented an oral argument to the United States Supreme Court. Pls.’ Reply 2.
10

failed to cite an adequate fee shifting case with similar fees is also a red herring. The lodestar amount is not the reasonable rate based only on previous fee shifting cases that the Plaintiffs also happen to cite in their brief. These arguments do not indicate Fisher, Esseks, or the other ACLU attorneys charged unreasonable rates.
Indeed, the Court finds Defendants provided sufficient justification that the rates sought for these attorneys are reasonable. Fisher is the co-director of the Stanford Supreme Court Litigation Clinic. He has practiced in front of the United States Supreme Court for approximately twelve years. Fisher Decl. ¶ 3, ECF No. 105-5. He has presented oral argument in twenty-seven cases and participated in briefing dozens of additional cases. Id. In a considerable number of those cases, Fisher represented plaintiffs in civil rights matters. Id. As cited by Plaintiffs, practitioners with similar experience earn between $1,000 and $1,800 per hour in litigating Supreme Court matters. Pls.’ Mot. Atty.’s Fees & Cost 19. Defendants do not contest that similar practitioners earn these fees for their representation before the Court.
Esseks is the Litigation Director of the ACLU Foundation’s Lesbian, Gay, Bisexual, Transgender and HIV Project. Esseks was co-counsel in United States v. Windsor and has been co-counsel in other state and federal court marriage litigation. The other two ACLU attorneys, Chase Strangio and Joshua Block, completed a substantial amount of the Supreme Court briefing. Plaintiffs provide a declaration from a practitioner in Esseks’ previous firm attesting to similar fees charged to clients for work in the relevant market with similar seniority to Esseks and the other ACLU attorneys. The Court finds that the rates requested are reasonable for attorneys in the relevant market.
The Court will deny Defendants’ challenge to $158,860.50 of the requested fees.
11

g. Whether Charging for the Solicitation of Amicus Briefs is Unreasonable
Defendants argue that it is unreasonable to charge for the solicitation of amicus briefs. This objection amounts to $6,437.50 of the attorney fees sought. Defendants’ argument, however, consists of including a block quoted rule from a district court in another district within a different circuit. Defendants do not provide any explanation why this Court should follow this rule or even any analysis of how that rule would apply to this case.
Plaintiffs do provide sufficiently detailed time entries describing attorney review of amicus briefs and discussions with various potential amici. Amicus briefs are part of appellate practice and can influence the court. These briefs are not solely filed to “make an end run around court-imposed limitations on the length of parties’ briefs,” Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003) (Posner, J., in chambers), but also function to “assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs.” Id. at 545. A paying client would expect an attorney to seek out a variety of amici that could assist in the case’s presentation. The Court finds Plaintiffs reasonably charged for the review and solicitation of amicus briefs.
The Court will deny Defendants’ challenge to $6,437.50 of the requested attorney fees.
h. Whether there Should be an Overall Reduction for Block Billing and Vagueness
Defendants’ objection to the Plaintiffs’ billing format lacks merit. Defendants cite no authority binding on this Court to support its argument that block billing is inconsistent with requesting reasonable attorney fees. The Sixth Circuit Court of Appeals has consistently held that block billing is acceptable as long as “the description of the work performed is adequate.” Smith v. Serv. Master Corp., 592 F. App’x 363, 371 (6th Cir. 2014); see also Pittsburgh & Conneaut
12

Dock Co. v. Dir., Office of Workers’ Comp. Programs, 473 F.3d 253, 273 (6th Cir. 2007). This Court does not require counsel’s descriptions of activities in a block billing entry to be “further described by time spent on each individual activity.” Pittsburgh & Conneaut Dock Co., 473 F.3d at 273.
Plaintiffs’ descriptions of local counsel’s activities are sufficient to assess “whether the cost o[f] the service is reasonably related to the quality or extent of service.” Id. Using an example Defendants cite to argue the insufficiency of the entries, one attorney time entry includes the description: “Correspondence to and from potential marriage license clients; draft, edit, and finalize intervening complaint and motion for preliminary injunction; research re motion to intervene standard.” Defs.’ Resp. 23. Another example Defendants highlight says, “Prep cover page for 6CA, corresp re editing timeline and moots for oral argument; conference with cocounsel re briefing.” Id. Although these are block entries, these descriptions detail the attorney’s activities and are sufficient to assess the reasonableness of the quality and extent of service. See Pittsburgh & Conneaut Dock Co., 473 F.3d at 273.
The Court will deny Defendants’ challenge to Plaintiffs’ block billed entries.
i. The Unmodified Attorney Fees
Plaintiffs request $1,126,664.278 in attorney fees. The Court will grant Defendants’ challenge to $43,759.17 of those fees. The Court will award Plaintiffs $1,082,905.10 in attorney fees.
3. The Fee Adjustment
8 This amount includes the $2,310 requested for attorney fees related to the Intervening Plaintiffs’ intervening petition. See Pls.’ Mot. Attorney’s Fees & Costs 7, n.1.
13

The Court has discretion to adjust the lodestar amount under rare and exceptional circumstances. Perry, 2015 WL 4940121, at *1. The party seeking to enhance attorney fees “bears the burden of showing that such an adjustment is necessary to the determination of a reasonable fee.” Gonter v. Hunt Valve Co., 510 F.3d 610, 621 (6th Cir. 2007) (internal quotations and citations omitted). The Sixth Circuit has said that the Court may consider a variety of factors in determining the appropriateness of a fee enhancement, including:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Barnes v. City of Cincinnati, 401 F.3d at 745-46 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). In the majority of cases, the lodestar amount already reflects these factors within the Court’s calculation of a reasonable hourly rate and hours billed. See Gonter, 510 F.3d at 621; Blum v. Stenson, 465 U.S. 886, 898 (1984). That is the case here.
Plaintiffs request a 75% upward fee adjustment. They argue that the litigation was a great success, although it was exceptionally complex, unpopular, and included many risks for the attorneys involved. While the Plaintiffs were clearly successful, the Court finds this litigation does not merit a fee enhancement. First, Plaintiffs mischaracterize this case as “unpopular.” Plaintiffs enjoyed support from a wide-range of individuals and organizations at every level of litigation, including amicus briefs filed in support by the American Bar Association, 167 United States Congressmen, 44 United States Senators, and officials from multiple states.
14

This widespread and varied support differs from the Sixth Circuit’s affirmation of similar multipliers in civil rights litigation. For example, in Barnes v. City of Cincinnati, the Sixth Circuit affirmed a 75% enhancement because the district court found that counsel could not be obtained without applying this multiplier. 401 F.3d at 746; see also Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 697 (9th Cir. 1996) (noting that a 100% fee enhancement was appropriate in part because of the “likelihood that no other attorney … would have accepted the case”). In Barnes, multiple attorneys submitted affidavits to the court that few attorneys locally or nationally would represent a transsexual police officer in bringing a sex discrimination claim against a city. 401 F.3d at 746.
Here, Plaintiffs did not face this overwhelming adversity. Not only would many attorneys have taken up similar cases, many attorneys across the country had and were representing similar clients with similar claims. See, e.g., Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014); Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014). The lack of undesirability which may merit a fee enhancement is underscored by the number of similar cases that were joined for oral argument. While this litigation had an important effect on society, a fee enhancement was not required to attract attorneys to take up this call to litigate.
Furthermore, the alleged complexity and novelty of this case is tempered by the previous and ongoing litigation in other districts and circuits during litigation. See, e.g., Bostic, 970 F. Supp. 2d 456; Whitewood, 992 F. Supp. 2d 410; Geiger, 994 F. Supp. 2d 1128. This case did not exist within a vacuum and Plaintiffs did not tread their path to the Supreme Court on their own.
15

The issues in this case were important to the clients and to the general public. The attorneys provided high quality representation and certainly did achieve a successful result. These reasons alone, however, are not enough for the Court to enhance the requested attorney fees. The lodestar calculation already accounts for the attorneys’ skill, experience, labor, and success.
The Court finds that the lodestar amount is appropriate and declines Plaintiffs’ request to upwardly enhance that amount.
4. Conclusion
The Court will grant Plaintiffs’ request for costs in full for the amount of $32,727.86. In total, the Court will grant in part Plaintiffs’ request for attorney fees and costs in the amount of $1,115,632.96 and will deny the remainder of their request.
A separate order will be entered in accordance with this opinion.

January 13, 2016

CharlesR.SimpsonIII,SeniorJudge UnitedStatesDistrictCourt

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 11/4/2017

Kentucky Western CM/ECF-DC
U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:13-cv-00750-CRS

CLOSED

Love et al v. Beshear Assigned to: Senior Judge Charles R. Simpson, III Cause: 42:1983 Civil Rights Act
Plaintiff Gregory Bourke TERMINATED: 02/27/2014

Date Filed: 07/26/2013 Date Terminated: 01/14/2016 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Daniel J. Canon Clay Daniel Walton Adams PLC 462 South Fourth Street, Suite 101 Louisville, KY 40202 502-561-2005 Fax: 502-589-5500 Email: dan.canon@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dawn R. Elliott Fauver Law Ofﬁce 1752 Frankfort Avenue Louisville, KY 40206 502-569-7710 Fax: 502-899-2467 Email: Dawn@dawnelliottlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich Clay Daniel Walton Adams PLC 462 South Fourth Street, Suite 101 Louisville, KY 40202 502-561-2005 Email: laura@justiceky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV 900 S. Shelby Street Louisville, KY 40203 502-442-1102 Fax: 502-442-1102 Email: joe@justiceky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Paz Winner

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Clay Daniel Walton Adams PLC 462 South Fourth Street, Suite 101 Louisville, KY 40202 502-561-2005 Email: louis@justiceky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Michael Deleon TERMINATED: 02/27/2014

Shannon Renee Fauver Fauver Law Ofﬁce 1752 Frankfort Avenue Louisville, KY 40206 502-569-7710 Fax: 502-899-2467 Email: shannon@fauverlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dawn R. Elliott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Renee Fauver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

I.D.

represented by Daniel J. Canon

minor child by and through his parents and

(See above for address)

next freinds, Gregory Bourke and Michael

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

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Deleon TERMINATED: 02/27/2014

Kentucky Western CM/ECF-ADCTTORNEY TO BE NOTICED
Dawn R. Elliott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
I.D. minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon TERMINATED: 02/27/2014

Shannon Renee Fauver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dawn R. Elliott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.kywd.uscourts.gov/cgi-bin/DktRpt.pl?7076835774439-L_1_0-1

Shannon Renee Fauver (See above for address)
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Plaintiff Luther Barlowe TERMINATED: 02/27/2014

Kentucky Western CM/ECF-DC
LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
M. J.-C. Minor Child through their parents and next friends, Randell Johnson and Paul Campion TERMINATED: 02/27/2014

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Randell Johnson TERMINATED: 02/27/2014

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jimmy Meade TERMINATED: 02/27/2014

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Paul Campion TERMINATED: 02/27/2014

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.kywd.uscourts.gov/cgi-bin/DktRpt.pl?7076835774439-L_1_0-1

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Plaintiff Tamera Boyd TERMINATED: 02/27/2014

Kentucky Western CM/ECF-ADCTTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kimberly Franklin TERMINATED: 02/27/2014

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
T. J.-C. Minor Child through their parents and next friends, Randell Johnson and Paul Campion TERMINATED: 02/27/2014

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.kywd.uscourts.gov/cgi-bin/DktRpt.pl?7076835774439-L_1_0-1

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Plaintiff T. J.-C. Minor Child through their parents and next friends, Randell Johnson and Paul Campion TERMINATED: 02/27/2014

Kentucky Western CM/ECF-DC
Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Timothy Love

represented by Daniel J. Canon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dawn R. Elliott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.kywd.uscourts.gov/cgi-bin/DktRpt.pl?7076835774439-L_1_0-1

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
7/22

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Kentucky Western CM/ECF-DC

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Lawrence M Ysunza

Shannon Renee Fauver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Renee Fauver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Maurice Blanchard

Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.kywd.uscourts.gov/cgi-bin/DktRpt.pl?7076835774439-L_1_0-1

Leonard J. Dunman , IV (See above for address)
8/22

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Kentucky Western CM/ECF-(DSCee above for address)
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Renee Fauver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Dominique James

Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura E. Landenwich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard J. Dunman , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Paz Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Renee Fauver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff

Chris Sevier

represented by Chris Sevier

TERMINATED: 04/24/2014

315 Guthrie Street

Suite 300

Louisville, KY 40202

(615) 500-4411

PRO SE

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Kentucky Western CM/ECF-PDCRO SE

V. Miscellaneous United States of America

represented by Jean Lin U.S. Department of Justice - Federal Programs P.O. Box 883 Washington, DC 20044 202-514-3716 Fax: 202-616-8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennie L. Kneedler U.S. Department of Justice - Federal Programs P.O. Box 883 Washington, DC 20044 202-305-8662 Fax: 202-616-8470 Email: jennie.l.kneedler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Bobbie Hosclaw in her ofﬁcial cpacity as Jefferson County Clerk TERMINATED: 11/15/2013
Defendant Alison Lundergan Grimes Secretary of State TERMINATED: 11/15/2013 Defendant Elaine A. Filiatreau Nelson County Clerk TERMINATED: 11/15/2013
https://ecf.kywd.uscourts.gov/cgi-bin/DktRpt.pl?7076835774439-L_1_0-1

represented by Stephanie A. French Jefferson County Attorney 531 Court Place, Suite 900 Louisville, KY 40202 502-574-8633 Fax: 502-574-4215 Email: kywd_ecf_deadletter@kywd.uscourts.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Licha H. Farah , Jr. Ward Hocker & Thornton, PLLC Lexington 333 W. Vine Street, Suite 1100 Lexington, KY 40507 859-422-6000 Fax: 859-422-6001
10/22

11/4/2017

Kentucky Western CM/ECF-FDCax: 859-422-6001
Email: lfarah@whtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Steve Breshear in his ofﬁcial capacity as Govenor of Kentucky
https://ecf.kywd.uscourts.gov/cgi-bin/DktRpt.pl?7076835774439-L_1_0-1

represented by Brian Thomas Judy Kentucky Cabinet for Health and Family Services 275 E. Main Street, 5th Floor West Frankfort, KY 40621-0001 502-696-5630 Fax: 502-564-6801 Email: brian.judy@ky.gov TERMINATED: 03/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clay A. Barkley Strobo Barkley PLLC 239 S 5th St Suite 917 Louisville, KY 40202 (502) 290-9751 Fax: (502) 378-5395 Email: cbarkley@downeystrobo.com TERMINATED: 03/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory L. Monge VanAntwerp, Monge, Jones, Edwards & McCann, LLP 1544 Winchester Avenue, 5th Floor P.O. Box 1111 Ashland, KY 41105-1111 606-329-2929 Fax: 606-329-0490 Email: gmonge@vmje.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leigh G. Latherow VanAntwerp, Monge, Jones, Edwards & McCann, LLP 1544 Winchester Avenue, 5th Floor P.O. Box 1111 Ashland, KY 41105-1111 606-329-2929 Fax: 606-329-0490 Email: llatherow@vmje.com LEAD ATTORNEY
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ATTORNEY TO BE NOTICED

Intervenor Defendant
Jack Conway in his ofﬁcial capacity as Attorney General of Kentucky

William H. Jones , Jr. VanAntwerp, Monge, Jones, Edwards & McCann, LLP P.O. Box 1111 Ashland, KY 41105-1111 606-329-2929 Fax: 606-329-0490 Email: wjones@vmje.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Thomas Judy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus The Family Trust Foundation of Kentucky, Inc.
Amicus American Civil Liberties Union of Kentucky, Inc.

Clay A. Barkley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stanton L. Cave 3060 Harrodsburg Road, Suite 200 Lexington, KY 40503 859-309-3000 Fax: 859-309-3001 Email: stan.cave@stancavelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Kincaid Adams Blackburn Domene & Burchett PLLC 614 W. Main St., Suite 3000 Louisville, KY 40202 502-584-1600 Email: jadams@bdblawky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. Painter Quintairos, Prieto, Wood & Boyer, PA 9300 Shelbyville Road, Suite 400 Louisville, KY 40222 502-423-6390 Fax: 502-423-6391 Email: ppainter@qpwblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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William E. Sharp ACLU of Kentucky Foundation, Inc. 315 Guthrie Green Street, Suite 300 Louisville, KY 40202-3820 502-584-1600 Fax: 502-584-9971 Email: wsharp@bdblawky.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/26/2013
07/26/2013 07/26/2013 07/26/2013 08/16/2013
08/16/2013 08/16/2013
08/19/2013 08/23/2013 08/23/2013 09/03/2013

# Docket Text
1 COMPLAINT against Steve Breshear, Jack Conway, Bobbie Hosclaw Filing fee $ 400, receipt number 644-1659594., ﬁled by I.D.(minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon), Gregory Bourke, Michael Deleon. (Attachments: # 1 Summons, # 2 Cover Sheet, # 3 Exhibit Marriag certiﬁcate) (JSS) ( (Main Document 1 replaced on 8/19/2013) (DAK). (Entered: 07/26/2013)
2 Case Assignment (Random Selection): Case Assigned to Judge John G. Heyburn II. Magistrate designation: Dave Whalin. (JSS) (Entered: 07/26/2013)
3 CERTIFICATE OF SERVICE by Gregory Bourke re 1 Complaint, (Attachments: # 1 Summons) (Fauver, Shannon) (Entered: 07/26/2013)
4 Summons Issued as to Steve Breshear, Jack Conway, Bobbie Hosclaw. Counsel for Plaintiff is responsible for printing and serving the attached issued summons(es). (JSS) (Entered: 07/26/2013)
5 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [AMENDED DOCUMENT] by Gregory Bourke. Amendment to 1 Complaint, by Gregory Bourke. (Fauver, Shannon) Modiﬁed on 8/16/2013 - edited title; was ﬁled as an Amended Document (DAK). (Entered: 08/16/2013)
6 AMENDED SUMMONS (AMENDED DOCUMENT) by Gregory Bourke. Amendment to 5 Amended Document by Gregory Bourke. (Fauver, Shannon) Modiﬁed on 8/19/2013 edited title; was ﬁled as amended document (DAK). (Entered: 08/16/2013)
AMENDED COMPLAINT against Jack Conway, Bobbie Hosclaw, Alison Lundergan Grimes, Elaine A. Filiatreau, ﬁled by I.D.(minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon), Gregory Bourke, Michael Deleon. See DN 5 for.pdf. (DAK) (Entered: 08/19/2013)
7 Summons Issued as Amended Complaint to Jack Conway, Elaine A. Filiatreau, Alison Lundergan Grimes, Bobbie Hosclaw. Counsel for Plaintiff is responsible for printing and serving the attached issued summons(es). (DAK) (Entered: 08/19/2013)
8 NOTICE by Michael Deleon re Amended Complaint, (Attachments: # 1 Summons, # 2 Summons) (Fauver, Shannon) (Entered: 08/23/2013)
9 Summons Issued as to Steve Breshear, Jack Conway. Counsel for Plaintiff is responsible for printing and serving the attached issued summons(es). (JSS) (Entered: 08/23/2013)
10 SUMMONS Returned Executed by Gregory Bourke. Elaine A. Filiatreau served on 8/26/2013, answer due 9/16/2013. (Fauver, Shannon) (Entered: 09/03/2013)

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09/03/2013 09/03/2013 09/03/2013 09/13/2013 09/16/2013 09/16/2013 09/17/2013 09/18/2013 09/25/2013 10/07/2013 10/07/2013 10/08/2013 10/09/2013 10/17/2013
10/28/2013 10/28/2013 10/31/2013

Kentucky Western CM/ECF-DC
11 SUMMONS Returned Executed by Michael Deleon. Bobbie Hosclaw served on 8/26/2013, answer due 9/16/2013. (Fauver, Shannon) (Entered: 09/03/2013)
12 SUMMONS Returned Executed by Gregory Bourke. Jack Conway served on 8/26/2013, answer due 9/16/2013. (Fauver, Shannon) (Entered: 09/03/2013)
13 SUMMONS Returned Executed by Gregory Bourke. Steve Breshear served on 8/26/2013, answer due 9/16/2013. (Fauver, Shannon) (Entered: 09/03/2013)
14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Elaine A. Filiatreau Responses due by 10/7/2013 (Attachments: # 1 Proposed Order) (Farah, Licha) (Entered: 09/13/2013)
15 Proposed Agreed Order/Stipulation by Steve Breshear, Jack Conway. (Barkley, Clay) (Entered: 09/16/2013)
16 MOTION to Dismiss by Defendant Bobbie Hosclaw Responses due by 10/10/2013 (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (French, Stephanie) (Entered: 09/16/2013)
17 Amended MOTION to Amend/Correct 16 MOTION to Dismiss by Defendant Bobbie Hosclaw Responses due by 10/11/2013 (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (French, Stephanie) (Entered: 09/17/2013)
18 AGREED ORDER FOR EXTENSION OF TIME TO ANSWER by Judge John G. Heyburn, II on 9/17/13. Time is extended for Dfts to answer Pltfs' complaint or respond by motion until 9/25/13. cc:counsel (SJS) (Entered: 09/18/2013)
19 ANSWER to Amended Complaint, by Steve Breshear, Jack Conway. (Barkley, Clay) (Entered: 09/25/2013)
20 Proposed Agreed Order/Stipulation to extend time to respond to Motion to Dismiss by Gregory Bourke. (Fauver, Shannon) (Entered: 10/07/2013)
21 ORDER (EBOC) by Judge John G. Heyburn, II on 10/7/2013; telephonic conference set for 10/10/2013 01:00 PM before Judge John G. Heyburn II.cc:counsel (TLB) (Entered: 10/07/2013)
22 AGREED ORDER by Judge John G. Heyburn, II on 10/8/2013; 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Response due by 10/28/2013.cc:counsel (TLB) (Entered: 10/08/2013)
23 Proposed Agreed Order/Stipulation for extension of time by Gregory Bourke. (Fauver, Shannon) (Entered: 10/09/2013)
24 ORDER for proceedings held before Judge John G. Heyburn, II. Telephonic Status Conference held on 10/10/2013. IT IS HEREBY ORDERED any dispositive motions can be ﬁled on or before 11/25/2013, with responses to be ﬁled on or before 12/16/2013. Normal reply times shall apply in accordance with the Local Rules of the Western District of Kentucky. The matters will then be submitted before the Court. cc: Counsel (TJD) (Entered: 10/17/2013)
25 NOTICE of Appearance by Laura E. Landenwich on behalf of Gregory Bourke, Michael Deleon, I.D., I.D. (Landenwich, Laura) (Entered: 10/28/2013)
26 MOTION to Modify Case Caption by Plaintiffs Gregory Bourke, Michael Deleon, I.D., I.D. Responses due by 11/21/2013 (Attachments: # 1 Proposed Order) (Landenwich, Laura) (Entered: 10/28/2013)
27 ORDER signed by Judge John G. Heyburn, II on 10/31/2013 granting 26 Motion to

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11/01/2013 11/01/2013 11/15/2013 11/15/2013
11/15/2013 11/19/2013 11/20/2013 11/25/2013
11/26/2013 12/02/2013 12/16/2013
01/13/2014 01/14/2014

Kentucky Western CM/ECF-DC
Modify Case Caption. cc: Counsel (TJD) (Entered: 10/31/2013)
28 MOTION to Dismiss by Plaintiff Gregory Bourke Responses due by 11/25/2013 (Attachments: # 1 Proposed Order) (Landenwich, Laura) (Entered: 11/01/2013)
29 MOTION for Leave to File Second Amended Complaint by Plaintiff Gregory Bourke Responses due by 11/25/2013 (Attachments: # 1 Exhibit attachment 1, # 2 Proposed Order) (Landenwich, Laura) (Entered: 11/01/2013)
30 ORDER granting 29 Motion for Leave to ﬁle Second Amended Complaint. Signed by Judge John G. Heyburn, II on 11/14/13. cc:counsel (JBM) (Entered: 11/15/2013)
31 SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against Steve Breshear, Jack Conway, ﬁled by I.D.(minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon), Michael Deleon, Gregory Bourke, Luther Barlowe, M.J.-C., Randell Johnson, Jimmy Meade, Paul Campion, Tamera Boyd, Kimberly Franklin, T.J.-C.. (JBM) (Entered: 11/15/2013)
32 ORDER granting 28 and 16 Motions to Dismiss. Claims against Defendants Bobbie Holsclaw and Elaine Filiatreau are hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge John G. Heyburn, II on 11/14/13. cc:counsel (JBM) (Entered: 11/15/2013)
33 NOTICE of Constitutional Challenge by Gregory Bourke (Landenwich, Laura) (Entered: 11/19/2013)
34 MOTION to Amend/Correct 24 Telephone Conference, Scheduling Order by Defendants Steve Breshear, Jack Conway Responses due by 12/16/2013 (Attachments: # 1 Proposed Order Proposed Agreed Order) (Barkley, Clay) (Entered: 11/20/2013)
35 MEMORANDUM AND ORDER by Judge John G. Heyburn, II on 11/23/2013. IT IS HEREBY ORDERED that motions supporting injunctive relief shall be ﬁled on or before 12/16/2013; responses shall be ﬁled on or before 1/13/2014; and replies on or before 01/23/2014. cc: Counsel (TJD) Modiﬁed on 11/25/2013-changed response date from 11/13/2014 to 1/13/2014. (DAK). (Entered: 11/25/2013)
36 NOTICE of Appearance by Leonard J. Dunman on behalf of Gregory Bourke (Landenwich, Laura) Modiﬁed on 11/26/2013-corrected attorney (MLG). (Entered: 11/26/2013)
37 ANSWER to 31 Amended Complaint, by Steve Breshear, Jack Conway. (Barkley, Clay) (Entered: 12/02/2013)
38 MOTION for Summary Judgment by Plaintiffs Luther Barlowe, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, Randell Johnson, Jimmy Meade Responses due by 1/9/2014 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1. Obergefell Opinion, # 3 Exhibit 2. Bourke Afﬁdavit, # 4 Exhibit 3. Franklin Afﬁdavit, # 5 Exhibit 4. Johnson Afﬁdavit, # 6 Exhibit 5. Meade Afﬁdavit, # 7 Exhibit 6. Senate Chambers, # 8 Exhibit 7. Amicus Brief, # 9 Exhibit 8. Bassett Opinion, # 10 Proposed Order Proposed Order) (Landenwich, Laura) (Entered: 12/16/2013)
39 RESPONSE to Motion re 38 MOTION for Summary Judgment ﬁled by Steve Breshear, Jack Conway. Replies due by 1/30/2014. (Attachments: # 1 Proposed Order Proposed Order) (Judy, Brian) (Entered: 01/13/2014)
40 REPLY to Response to Motion re 38 MOTION for Summary Judgment ﬁled by Luther Barlowe, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, Randell Johnson, Jimmy Meade. (Attachments: # 1 Exhibit 1. Kitchen v. Herbert, # 2 Exhibit 2. Obergefell) (Landenwich, Laura) (Entered: 01/14/2014)

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Kentucky Western CM/ECF-DC
41 MOTION for Leave to ﬁle Amicus Curiae Brief by Amicus The Family Trust Foundation of Kentucky, Inc. Responses due by 2/10/2014 (Attachments: # 1 Proposed Order, # 2 Exhibit) (Cave, Stanton) (Entered: 01/16/2014)

01/17/2014

42 ORDER signed by Judge John G. Heyburn, II on 01/17/2014 granting 41 Motion for Leave to ﬁle amicus curiae brief. cc: Counsel of Record (TJD) (Entered: 01/17/2014)

01/17/2014

43 BRIEF OF AMICUS CURIAE by The Family Trust Foundation of Kentucky, Inc re 39 Response to Motion ﬁled by Jack Conway, Steve Breshear. (TJD) (Entered: 01/17/2014)

01/21/2014

44 NOTICE (Acknowledgement of Constitutional Challenge) by United States of America re 33 Notice (Other) (Kneedler, Jennie) (Entered: 01/21/2014)

01/23/2014

45 ORDER by Judge John G. Heyburn, II on 1/23/2014; Plaintiffs shall have to 2/3/2014 in which to respond to the amicus brief, should they so choose.cc:counsel (TLB) (Entered: 01/23/2014)

02/03/2014

46 RESPONSE to re 43 Brief of Amicus ﬁled by Luther Barlowe, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, I.D.(minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon), Randell Johnson, M.J.-C., Jimmy Meade, T.J.-C.(Minor Child through their parents and next friends, Randell Johnson and Paul Campion). (Attachments: # 1 Exhibit Hollingsworth ASA Brief) (Canon, Daniel) (Entered: 02/03/2014)

02/12/2014

47 MEMORANDUM OPINION by Judge John G. Heyburn, II on 2/11/2014; re 38 MOTION for Summary Judgment ﬁled by Paul Campion, Jimmy Meade, Gregory Bourke, Luther Barlowe, Tamera Boyd, Michael Deleon, Kimberly Franklin, Randell Johnson. The Court will enter an order consistent with this Memorandum Opinion.cc:counsel (DAK) (Entered: 02/12/2014)

02/12/2014

48 ORDER by Judge John G. Heyburn, II on 2/11/2014; re 38 MOTION for Summary Judgment ﬁled by Paul Campion, Jimmy Meade, Gregory Bourke, Luther Barlowe, Tamera Boyd, Michael Deleon, Kimberly Franklin, Randell Johnson, 47 Memorandum & Opinion - To the extent K.R.S. 402.005,.020,.040, and.045 and Section 233A of the Kentucky Constitution deny validly married same-sex couples equal recognition and beneﬁts under Kentucky and federal law, they violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The Court will set a hearing in the near future to discuss the appropriate form of relief and the timing of its effect. This is not a ﬁnal order.cc: Counselcc:counsel (DAK) (Entered: 02/12/2014)

02/14/2014

49 MOTION to Intervene by Intervenor Parties Timothy Love, Lawrence M Ysunza, Maurice Blanchard, Dominique James Responses due by 3/10/2014 (Attachments: # 1 Exhibit Intervening Complaint, # 2 Proposed Order) (Canon, Daniel) (Entered: 02/14/2014)

02/14/2014

50 Emergency MOTION for Preliminary Injunction , MOTION for Permanent Injunction by Intervenor Parties Maurice Blanchard, Dominique James, Timothy Love, Lawrence M Ysunza Responses due by 3/10/2014 (Attachments: # 1 Proposed Order) (Canon, Daniel) (Entered: 02/14/2014)

02/19/2014

51 ORDER (EBOC) by Judge John G. Heyburn, II on 2/19/2014; telephonic conference set for 2/26/2014 01:00 PM before Judge John G. Heyburn II.cc:counsel (TLB) (Entered: 02/19/2014)

02/19/2014

Schedules In Chambers Conference set for 2/26/2014 01:00 PM in chambers before Judge John G. Heyburn II. (ARM) (Entered: 02/19/2014)

02/26/2014

Proceedings held before Judge John G. Heyburn, II: Status Conference held on 2/26/2014. (TLB) (Entered: 02/27/2014)

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02/27/2014 02/27/2014
02/27/2014 02/27/2014
02/27/2014 02/28/2014 02/28/2014 02/28/2014 03/11/2014
03/14/2014 03/14/2014

Kentucky Western CM/ECF-DC
52 MOTION to Stay re 48 Order,, 47 Memorandum & Opinion, by Defendants Steve Breshear, Jack Conway Responses due by 3/24/2014 (Attachments: # 1 Proposed Order) (Barkley, Clay) (Entered: 02/27/2014)
53 ORDER by Judge John G. Heyburn, II on 2/27/2014; status/motion hearing held 2/26/2014; 49 Motion to Intervene SUSTAINED; intervening complaint will be ﬁled in the record as of this date; the court establishes the following ﬁling and brieﬁng schedule: Answer to Intervening Complaint due 3/19/2014; Motion and Memorandum for Relief by Plaintiffs due 4/18/2014; response to any motions by Plaintiff or other Amicus Parties due 5/19/2014; reply to any motions by Plaintiff due 5/28/2014. cc:counsel (TLB) (Entered: 02/27/2014)
54 INTERVENING COMPLAINT AND PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF, ﬁled by Maurice Blanchard, Dominique James, Timothy Love, Lawrence M Ysunza. (TLB) (Entered: 02/27/2014)
55 ORDER by Judge John G. Heyburn, II on 2/26/2014; the parties and the Court having discussed 47 Memorandum Opinion and 48 Order; no party having objection to the entry of a ﬁnal order consistent with it; that to the extend K.R.S. 402.055,.020,.040, and.045 and Section 233A of the Kentucky Constitution act to deny validly married same-sex couples equal recognition and beneﬁts under Kentucky and federal law, those laws violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and they are void and unenforceable; this is a ﬁnal and appealable order.cc:counsel (TLB) (Entered: 02/27/2014)
56 ORDER (EBOC) by Judge John G. Heyburn, II on 2/27/2014; telephonic conference set for 2/28/2014 02:30 PM before Judge John G. Heyburn II ; parties shall beprepared to discuss pending 52 MOTION to Stay. cc:counsel (TLB) (Entered: 02/27/2014)
57 ORDER by Judge John G. Heyburn, II on 02/27/2014. IT IS HEREBY ORDERED that the Clerk shall modify the style of the case to Love, et al. vs. Beshear, et al. cc: Counsel (TJD) (Entered: 02/28/2014)
58 ORDER Signed by Judge John G. Heyburn, II on 2/28/2014 granting 52 Motion to Stay. The Court concludes that a limited stay allows the state proper time to administratively prepare for compliance with the Order.Being otherwise sufﬁciently advised, IT IS HEREBY ORDERED that enforcement of the Courts ﬁnal order entered February 27, 2014, is STAYED until March 20, 2014.cc:counsel (ARM) (Entered: 02/28/2014)
59 ORDER Signed by Judge John G. Heyburn, II on 2/28/2014. denying 50 Motion for Preliminary Injunction; denying 50 Motion for Permanent Injunction.cc:counsel (ARM) (Entered: 02/28/2014)
60 MOTION for Attorney Fees and Costs by Plaintiffs Luther Barlowe, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, I.D., I.D., Randell Johnson, M.J.-C., Jimmy Meade, T.J.-C., T.J.-C. Responses due by 4/4/2014 (Attachments: # 1 Afﬁdavit Afﬁdavit of Daniel J. Canon, # 2 Afﬁdavit Afﬁdavit of Shannon Fauver, # 3 Exhibit Time records for Clay Daniel Walton Adams, PLC, # 4 Afﬁdavit Afﬁdavit of Louis P. Winner, # 5 Exhibit Time records of Fauver Law Ofﬁce, # 6 Afﬁdavit Afﬁdavit of Gregory A. Belzley, # 7 Exhibit Declaration of Paul Hershberg, # 8 Proposed Order) (Canon, Daniel) (Entered: 03/11/2014)
61 NOTICE of Appearance by Leigh G. Latherow on behalf of Steve Breshear (Latherow, Leigh) (Entered: 03/14/2014)
62 MOTION to Withdraw as Attorney . (Continue to receive notice:Yes)by Intervenor Defendant Steve Breshear Responses due by 4/3/2014 (Attachments: # 1 Exhibit Consent,

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# 2 Proposed Order) (Barkley, Clay) (Entered: 03/14/2014)

03/14/2014

63 MOTION to Stay re 55 Order, Add and Terminate Parties,,,, by Intervenor Defendant Steve Breshear Responses due by 4/7/2014 (Attachments: # 1 Memorandum in Support, # 2 Exhibit unpublished cases cited, # 3 Proposed Order) (Latherow, Leigh) (Entered: 03/14/2014)

03/17/2014

Schedules Telephone Conference set for 3/17/2014 02:30 PM in Teleconference before Judge John G. Heyburn II on pending motion to stay. (ARM) (Entered: 03/17/2014)

03/17/2014

64 Objection to 63 MOTION to Stay re 55 Order, Add and Terminate Parties,,,, ﬁled by Luther Barlowe, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, Randell Johnson, Jimmy Meade. (Attachments: # 1 Afﬁdavit Cristal Fox) (Landenwich, Laura) (Additional attachment(s) added on 3/19/2014: # 2 Proposed Order) (TG). (Entered: 03/17/2014)

03/17/2014

65 ORDER signed by Judge John G. Heyburn, II on 03/17/2014 granting 62 Motion to Withdraw as Attorney. Upon Motion of the Hon. Brian T. Judy and Hon. Clay Barkley to withdraw as counsel, and the court being otherwise sufﬁciently advised, the motion is hereby GRANTED and the attorneys are permitted to withdraw as attorneys of record in this matter. cc: Counsel (TJD) (Entered: 03/17/2014)

03/18/2014

66 NOTICE of Deﬁciency re 64 Objection, : failure to comply will be brought to the attention of the Court. Response due by 3/25/2014. (TG) (Entered: 03/18/2014)

03/18/2014

67 Proposed Order Denying Defendant's Motion for Stay re 64 Objection, by Luther Barlowe, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, Randell Johnson, Jimmy Meade. (Landenwich, Laura) (Entered: 03/18/2014)

03/18/2014

68 NOTICE OF APPEAL as to 48 Order,, 55 Order, Add and Terminate Parties,,,, 47 Memorandum & Opinion, by Steve Breshear. Filing fee $ 505, receipt number 06441788494. (Latherow, Leigh) (Entered: 03/18/2014)

03/19/2014

69 ANSWER to 54 Intervenor Complaint by Steve Breshear. (Latherow, Leigh) (Entered: 03/19/2014)

03/19/2014

70 ORDER for proceedings held before Judge John G. Heyburn, II. Telephone Conference regarding pending motion to stay (DN 63 ) held on 3/17/2014. (Court Reporter Alan Wernecke.) IT IS HEREBY ORDERED the brieﬁng schedule established in the February 27, 2014 Order (DN 53 ) is amended to reﬂect a motion for leave to ﬁle as an amicus must be ﬁled on or before MAY 2, 2014. IT IS FURTHER ORDERED that upon oral motion by Family Trust Foundation of Kentucky, Inc. to ﬁle a amicus brief is sustained. The motion to stay is hereby taken under advisement and a separate order shall issue. cc: Counsel (TJD) (Entered: 03/19/2014)

03/19/2014

71 MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 3/19/2014 re 63 Motion to Stay; stay of this Court's February 27, 2014 ﬁnal order is extended until further order of the Sixth Circuit. cc:counsel (TLB) (Entered: 03/19/2014)

03/20/2014

72 MOTION to Dismiss by Intervenor Defendant Jack Conway Responses due by 4/14/2014 (Attachments: # 1 Proposed Order Proposed Order) (Judy, Brian) (Entered: 03/20/2014)

03/24/2014

73 ORDER signed by Judge John G. Heyburn, II on 03/21/2014 granting 72 Motion to Dismiss Defendant Jack Conway, in his ofﬁcial capacity as Attorney General of Kentucky, from this action. cc: Counsel (TJD) (Entered: 03/24/2014)

04/04/2014

74 RESPONSE to Motion re 60 MOTION for Attorney Fees and Costs ﬁled by Steve Breshear. Replies due by 4/21/2014. (Attachments: # 1 Addendum Unpublished Opinions, # 2 Proposed Order) (Latherow, Leigh) (Entered: 04/04/2014)

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Kentucky Western CM/ECF-DC
75 RESPONSE to Motion re 60 MOTION for Attorney Fees and Costs ﬁled by Jack Conway. Replies due by 4/21/2014. (Attachments: # 1 Proposed Order Proposed Order) (Judy, Brian) (Entered: 04/04/2014)

04/09/2014

76 REPLY re 74 Response to Motion for Attorney Fees and Costs ﬁled by Luther Barlowe, Maurice Blanchard, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, I.D.(minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon), Dominique James, Randell Johnson, Timothy Love, M.J.C., Jimmy Meade, T.J.-C.(Minor Child through their parents and next friends, Randell Johnson and Paul Campion), Lawrence M Ysunza. (Attachments: # 1 Exhibit Exhibit 1 Unpublished Case - Dumas v. NUMM, # 2 Exhibit Exhibit 2 - Unpublished Case Giuffre v. Hyundai, # 3 Proposed Order) (Dunman, Leonard) (Entered: 04/09/2014)

04/18/2014

77 MOTION for Summary Judgment by Intervenor Plaintiffs Maurice Blanchard, Dominique James, Timothy Love, Lawrence M Ysunza Responses due by 5/19/2014 -per DN# 53 Order-- (Attachments: # 1 Memorandum in Support, # 2 Afﬁdavit Love/Ysunza Afﬁdavit, # 3 Afﬁdavit Blanchard Afﬁdavit, # 4 Proposed Order) (Canon, Daniel) Modiﬁed on 4/23/2014 to correct response ddl. (ARM). (Entered: 04/18/2014)

04/22/2014

78 MOTION to Intervene by Intervenor Plaintiff Chris Sevier. Responses due by 5/16/2014. (Attachments: # 1 Motion to Intervene as a Plaintiff, # 2 Proposed Intervening Complaint) (TJD) (Entered: 04/23/2014)

04/23/2014

79 NOTICE of Deﬁciency re 78 Motion to Intervene: failure to comply, by returning original signatures, will be brought to the attention of the Court. Response due by 5/27/2014. (TJD) (Entered: 04/23/2014)

04/23/2014

NOTICE TO COUNSEL: Update to docket text re 77 MOTION for Summary Judgment to reﬂect correct response ddl as 5/19/14, per DN# 53 Order. (ARM) (Entered: 04/23/2014)

04/24/2014

80 MEMORANDUM AND ORDER by Senior Judge Thomas B. Russell declining to rule on 78 Motion to Intervene as it relates to the original action and denying 78 Motion to Intervene in the remaining intervening complaint. cc: counsel; Chris Sevier, pro se (JLS) (Entered: 04/24/2014)

04/29/2014

81 MOTION for Leave to File Amicus Curiae Brief by Amicus American Civil Liberties Union of Kentucky, Inc. Responses due by 5/23/2014 (Attachments: # 1 Proposed Order, # 2 Amicus Curiae Brief) (Adams, Jennifer) (Entered: 04/29/2014)

05/12/2014

82 ORDER signed by Senior Judge John G. Heyburn, II on 05/12/2014 granting 81 Motion for Leave to File Amicus Curiae Brief. cc: Counsel (TJD) (Entered: 05/12/2014)

05/12/2014

83 AMICUS CURIAE BRIEF OF THE ACLU OF KENTUCKY IN SUPPORT OF INTERVENING PLAINTIFFS ﬁled by American Civil Liberties Union of Kentucky, Inc. re 82 Order on Motion for Leave to File Amicus Curiae Brief. (TJD) (Entered: 05/12/2014)

05/13/2014

84 NOTICE of Change of Address by Jennifer Kincaid Adams (Adams, Jennifer) (Entered: 05/13/2014)

05/14/2014

85 MEMORANDUM OPINION signed by Senior Judge John G. Heyburn, II on 05/13/2014 sustaining 60 Motion for Attorney Fees. IT IS HEREBY ORDERED that Plaintiffs' motion for attorney's fees and costs is SUSTAINED and Plaintiffs are awarded $70,325.00 for attorney's fees and $453.00 for costs. IT IS FURTHER ORDERED that this order is STAYED pending the resolution of Defendant's appeal before the Sixth Circuit Court of Appeals. cc: Counsel of Record (TJD) (Entered: 05/14/2014)

05/19/2014 86 BRIEF of Amicus Curiae, The Family Trust Foundation of Kentucky, Inc., in opposition

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05/19/2014
05/27/2014 05/28/2014 05/29/2014 07/01/2014
07/08/2014 07/15/2014 08/06/2014
11/07/2014 11/20/2014 01/20/2015

Kentucky Western CM/ECF-DC
to Motion for Summary Judgment by Timothy Love Plaintiffs re 77 MOTION for Summary Judgment ﬁled by Timothy Love, Lawrence M Ysunza, Maurice Blanchard, Dominique James by The Family Trust Foundation of Kentucky, Inc.. (Cave, Stanton) (Entered: 05/19/2014)
87 RESPONSE to Motion re 77 MOTION for Summary Judgment ﬁled by Steve Breshear. Replies due by 5/28/2014--PER DN# 53 Order-. (Attachments: # 1 Exhibit 1 - NPR Article, # 2 Exhibit 2 - New York Times, # 3 Exhibit 3 - SMH Article, # 4 Exhibit 4 Washington Post, # 5 Proposed Order) (Latherow, Leigh) Modiﬁed on 5/21/2014 (ARM). (Entered: 05/19/2014)
88 Mail Returned as Undeliverable. Mail sent to Chris Sevier (KJA) (Entered: 05/28/2014)
89 REPLY re 77 MOTION for Summary Judgment ﬁled by Maurice Blanchard, Dominique James, Timothy Love, Lawrence M Ysunza. (Attachments: # 1 Exhibit 1: Birth Rates) (Landenwich, Laura) (Entered: 05/28/2014)
90 Mail sent to Chris Sevier Returned as Undeliverable re: DN 79 . (TJD) (Entered: 05/29/2014)
91 MEMORANDUM OPINION AND ORDER by Senior Judge John G. Heyburn, II on 7/1/2014; re 77 MOTION for Summary Judgment ﬁled by Timothy Love, Lawrence M Ysunza, Maurice Blanchard, Dominique James - 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 Courts 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.cc:counsel (DAK) (Entered: 07/01/2014)
92 NOTICE OF APPEAL as to 91 Memorandum & Opinion,,, by Steve Breshear. Filing fee $ 505, receipt number 0644-1846213. (Latherow, Leigh) (Entered: 07/08/2014)
93 MOTION for Extension of Time to File Petition for Attorney Fees by Intervenor Plaintiffs Maurice Blanchard, Dominique James, Timothy Love, Lawrence M Ysunza Responses due by 7/25/2014 (Attachments: # 1 Exhibit 1 Joint Motion to Consolidate, # 2 Proposed Order) (Landenwich, Laura) (Entered: 07/15/2014)
94 ORDER signed by Senior Judge John G. Heyburn, II on 08/06/2014 granting 93 Motion for Extension of Time to File. IT IS HEREBY ORDERED that any fee petition ﬁled in this case shall be ﬁled within thirty (30) days of ﬁnal disposition by the Sixth Circuit Court of Appeals or, if applicable, the United States Supreme Court. cc: Counsel (TJD) (Entered: 08/06/2014)
95 NOTICE RECEIVED FROM USCA re 68 Notice of Appeal, 92 Notice of Appeal. OPINION and JUDGMENT ﬁled : The judgment of the district court is REVERSED. Mandate to Issue. (TG) (Entered: 11/07/2014)
96 NOTICE RECEIVED FROM USCA - re 68 Notice of Appeal, 92 Notice of Appeal. U.S. Supreme Court notice ﬁled regarding a petition for a writ of certiorari ﬁled by Appellee Gregory Bourke in 14-5291. Supreme Court Case No:14-574. (TLG) (Entered: 11/20/2014)
97 NOTICE RECEIVED FROM USCA - U.S. Supreme Court letter ﬁled granting the petitions for writs of certiorari limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two

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people of the same sex when their marriage was lawfully licensed and performed out-ofstate? 157 ﬁled by Gregory Bourke.. Supreme Court Case No: 14-574, 01/16/2015.. [145291, 14-5818] (Cathryn Lovely) (TLG) (Entered: 01/21/2015)
98 .S. Supreme Court opinion ﬁled : REVERSED. Supreme Court Case No: 14-574. [145291, 14-5818] (JBM) (Entered: 06/26/2015)
99 MOTION for Extension of Time to File Attorney Fee Petition ( Responses due by 8/6/2015), MOTION Assignment ( Responses due by 8/20/2015)by Plaintiffs Luther Barlowe, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, I.D., I.D., Randell Johnson, M.J.-C., Jimmy Meade, T.J.-C., T.J.-C., Intervenor Plaintiffs Maurice Blanchard, Dominique James, Timothy Love, Lawrence M Ysunza (Attachments: # 1 Proposed Order) (Landenwich, Laura) (Entered: 07/26/2015)
100 Case Assignment (Random Selection): Case Assigned to Senior Judge Charles R. Simpson III. (MLG) (Entered: 07/27/2015)
101 TEXT ORDER by Chief Judge Joseph H. McKinley, Jr on 7/27/15; Pursuant to GO 201502, this case is reassigned to Senior Judge Charles R. Simpson III, for all further proceedings. Senior Judge John G. Heyburn, II, is no longer assigned to case.

This Notice of Electronic Filing is the Ofﬁcial ORDER for this entry. No document is attached.

cc:counsel (MLG) (Entered: 07/27/2015)

07/28/2015

102 NOTICE RECEIVED FROM USCA: U.S. Supreme Court judgment ﬁled : REVERSED, with costs to be recovered by petitioners. Amount: $26, 778.00 (in cases 14-556, 14-562 & 14-574); $7,431.80 (in case 14-571). Supreme Court Case No: 14-574, 07/28/2015. [14-5291, 14-5818. (TLG) (Entered: 07/28/2015)

08/17/2015

103 NOTICE From 6th Circuit Court of Appeals re 68 Notice of Appeal, 92 Notice of Appeal - ORDER ﬁled : In light of the United States Supreme Court's decision, see Obergefell v. Hodges, 135 S. Ct. 2584 (2015), these appeals are remanded to the district courts from which they originated to allow further proceedings as necessary. The appeals are closed, and the mandate shall issue forthwith. (DAK) (Main Document 103 replaced on 8/17/2015) (DAK). (Entered: 08/17/2015)

08/17/2015

104 MANDATE of USCA as to 68 Notice of Appeal ﬁled by Steve Breshear, 92 Notice of Appeal ﬁled by Steve Breshear (DAK) (Main Document 104 replaced on 8/17/2015) (DAK). (Entered: 08/17/2015)

08/21/2015

105 Second MOTION for Attorney Fees and Costs by Plaintiffs Luther Barlowe, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, I.D., I.D., Randell Johnson, M.J.-C., Jimmy Meade, T.J.-C., T.J.-C., Intervenor Plaintiffs Maurice Blanchard, Dominique James, Timothy Love, Lawrence M Ysunza Responses due by 9/14/2015 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A - Canon Declaration, # 3 Exhibit B - Esseks Declaration, # 4 Exhibit C - Fauver Declaration, # 5 Exhibit D - Fisher Declaration, # 6 Exhibit E - Belzley Declaration, # 7 Exhibit F Hershberg Declaration, # 8 Exhibit G - Dellinger Declaration, # 9 Exhibit H - Clark Declaration, # 10 Exhibit I - CDWA Time Record, # 11 Exhibit J - Dunman Time Record, # 12 Exhibit K - Fauver Time Record, # 13 Exhibit L - ACLU Time Record, # 14 Exhibit M - Esseks Time Record, # 15 Exhibit N - Block Time Record, # 16 Exhibit O - Strangio Time Record, # 17 Exhibit P - Fisher Time Record, # 18 Exhibit Q - Stack of Briefs, # 19 Exhibit R - Hate Mail) (Canon, Daniel) (Additional attachment(s) added on 8/24/2015: # 20 Proposed Order) (JSS). (Entered: 08/21/2015)

08/24/2015 106 NOTICE of Filing Proposed Order by Luther Barlowe, Maurice Blanchard, Gregory

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Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, I.D.(minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon), Dominique James, Randell Johnson, Timothy Love, M.J.-C., Jimmy Meade, T.J.-C. (Minor Child through their parents and next friends, Randell Johnson and Paul Campion), Lawrence M Ysunza re 105 Second MOTION for Attorney Fees and Costs (Attachments: # 1 Proposed Order) (Canon, Daniel) (Entered: 08/24/2015)
107 AMENDED DOCUMENT by Gregory Bourke. Amendment to 105 Second MOTION for Attorney Fees and Costs (Attachments: # 1 Exhibit) by Gregory Bourke. (Canon, Daniel) (Entered: 09/04/2015)
108 Proposed Agreed Order/Stipulation by Steve Breshear. (Latherow, Leigh) (Entered: 09/11/2015)
109 AGREED ORDER FOR EXTENSION OF TIME by Senior Judge Charles R. Simpson, III on 9/14/2015 re: 105 Second MOTION for Attorney Fees and Costs: Responses due by 9/25/2015. cc:counsel (JBM) (Entered: 09/14/2015)
110 RESPONSE to Motion re 105 Second MOTION for Attorney Fees and Costs ﬁled by Steve Breshear. Replies due by 10/13/2015. (Attachments: # 1 Exhibit 1 - Billing Records for Preparing Supreme Court Briefs, # 2 Exhibit 2 - Bishop Case, # 3 Exhibit 3 - Billing Records for Supreme Court Arguments, # 4 Exhibit 4 - Billing Records related to impasse, # 5 Proposed Order) (Latherow, Leigh) (Entered: 09/25/2015)
111 REPLY to Response to Motion re 105 Second MOTION for Attorney Fees and Costs ﬁled by Luther Barlowe, Maurice Blanchard, Gregory Bourke, Tamera Boyd, Paul Campion, Michael Deleon, Kimberly Franklin, I.D.(minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon), Dominique James, Randell Johnson, Timothy Love, M.J.-C., Jimmy Meade, T.J.-C.(Minor Child through their parents and next friends, Randell Johnson and Paul Campion), Lawrence M Ysunza. (Canon, Daniel) (Entered: 10/13/2015)
112 MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 1/13/2016, re 105 Second MOTION for Attorney Fees and Costs.cc: Counsel (RLK) (Entered: 01/13/2016)
113 ORDER signed by Senior Judge Charles R. Simpson, III on 1/13/2016, GRANTING IN PART AND DENYING IN PART 105 Plaintiffs' Second Motion for Attorney Fees. The Court GRANTS the motion for $1,115,632.96 of requested attorney fees and costs. The Court DENIES the motion for the remainder of Plaintiffs' requested attorney fees and costs. cc: Counsel(RLK) (Entered: 01/13/2016)
114 NOTICE OF SATISFACTION OF JUDGMENT by Gregory Bourke, Timothy Love (Landenwich, Laura) (Entered: 02/10/2016)

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 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0275p.06
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

14-1341

┐

APRIL DEBOER, et al.,

│ │

Plaintiffs-Appellees, │

v.
RICHARD SNYDER, Governor, State of Michigan, in his official capacity, et al.,
Defendants-Appellants.

││>
│ │ │

│

14-3057

│

JAMES OBERGEFELL, et al.,

│

v.

Plaintiffs-Appellees,

│ │

│

RICHARD HODGES, Director of the Ohio Department │

of Health, in his official capacity,

│

Defendant-Appellant.

│ │

│

14-3464

│

BRITTANI HENRY, et al.,

│

Plaintiffs-Appellees,

│ │

v.

│

RICHARD HODGES, Director of the Ohio Department of Health, in his official capacity,
Defendant-Appellant.

│ │ │ │

│

14-5291

│

GREGORY BOURKE, et al.,

│

Plaintiffs-Appellees,

│ │

v.

│

STEVE BESHEAR, Governor, Commonwealth of Kentucky, in his official capacity,
Defendant-Appellant.

│ │ │ │

│

│

Nos. 14-1341; 3057; 3464; 5291; 5297; 5818

1

Nos. 14-1341/ 3057/ 3464/ 5291/ 5297/ 5818 DeBoer v. Snyder

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14-5297

│

VALERIA TANCO, et al.,

│ │

Plaintiffs-Appellees, │

v.

│ │

WILLIAM EDWARD “BILL” HASLAM, Governor, State │

of Tennessee, in his official capacity, et al.,

│

Defendants-Appellants. │ │

14-5818

│

TIMOTHY LOVE, et al.,

│ │

Plaintiffs/Intervenors-Appellees, │

v.

│ │

STEVE BESHEAR, Governor, Commonwealth of

│

Kentucky, in his official capacity,

│

Defendant-Appellant. │ ┘

14-1341 Appeal from the United States District Court for the Eastern District of Michigan at Detroit; No. 2:12-cv-10285—Bernard A. Friedman, District Judge.
14-3057 & 14-3464 Appeals from the United States District Court for the Southern District of Ohio at Cincinnati; Nos. 1:13-cv-00501 & 1:14-cv-00129—Timothy S. Black, District Judge.
14-5291 & 14-5818 Appeals from the United States District Court for the Western District of Kentucky at Louisville; No. 3:13-cv-00750—John G. Heyburn II, District Judge.

14-5297 Appeal from the United States District Court for the Middle District of Tennessee at Nashville; No. 3:13-cv-01159—Aleta Arthur Trauger, District Judge.

Argued: August 6, 2014

Decided and Filed: November 6, 2014

Before: DAUGHTREY, SUTTON and COOK, Circuit Judges.

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_________________
COUNSEL
ARGUED: Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant in 14-1341. Carole M. Stanyar, Ann Arbor, Michigan, for Appellees in 14-1341. Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 14-3057 and 14-3464. Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees in 14-3057 and 143464. Leigh Gross Latherow, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant in 14-5291 and 14-5818. Laura E. Landenwich, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees in 14-5291 and 145818. Joseph F. Whalen, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants in 14-5297. William L. Harbison, SHERRARD & ROE, PLC, Nashville, Tennessee, for Appellees in 14-5297. ON BRIEF: 14-1341: Aaron D. Lindstrom, Kristin M. Heyse, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Ann Arbor, Michigan, Dana M. Nessel, Detroit, Michigan, Robert A. Sedler, WAYNE STATE UNIVERSITY LAW SCHOOL, Detroit, Michigan, Kenneth M. Mogill, MOGILL, POSNER & COHEN, Lake Orion, Michigan, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Paul Benjamin Linton, Northbrook, Illinois, James R. Wierenga, DAVID & WIERENGA, P.C., Grand Rapids, Michigan, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., James J. Walsh, Thomas J. Rheaume, Jr., BODMAN PLC, Detroit, Michigan, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Lawrence J. Joseph, Washington, D.C., Thomas M. Fisher, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, LIBERTY COUNSEL, Orlando, Florida, Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S. CONFERENCE OF CATHOLIC BISHOPS, Washington, D.C., Alexander Dushku, R. Shawn Gunnarson, KIRTON MCCONKIE, Salt Lake City, Utah, Erin Elizabeth Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Jason Walta, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Diana Raimi, JAFFE RAITT HEUER & WEISS, P.C., Ann Arbor, Michigan, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Alan M. Gershel, THOMAS M. COOLEY LAW SCHOOL, Auburn Hills, Michigan, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan,

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Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Jonathan B. Miller, OFFICE OF THE MASSACHUSETTS ATTORNEY GENERAL, Boston, Massachusetts, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., for Amici Curiae. 14-3057: Bridget E. Coontz, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Chase B. Strangio, James D. Esseks, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Drew Dennis, ACLU OF OHIO, INC., Cleveland, Ohio, for Appellees. Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Lawrence J. Joseph, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Susan L. Sommer, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New York, Camilla B. Taylor, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Roberta A. Kaplan, Jaren Janghorbani, Joshua D. Kaye, Jacob H. Hupart, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, Thomas D. Warren, BAKER & HOSTETLER LLP, Cleveland, Ohio, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Shannon P. Minter, Christopher F. Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, Washington, D.C., for Amici Curiae. 14-3464: Eric E. Murphy, Bridget E. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Susan L. Sommer, M. Currey Cook, Keith Hammeran, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., New York, New York, Paul D. Castillo, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., Dallas, Texas, for Appellees. Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Sean R. Gallagher, POLSINELLI PC,

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Denver, Colorado, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Paul D. Ritter, Jr., Christopher J. Weber, Robert G. Schuler, KEGLER, BROWN, HILL & RITTER CO., L.P.A., Columbus, Ohio, Lawrence J. Joseph, Washington, D.C., Harlan D. Karp, Tina R. Haddad, Cleveland, Ohio, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Joseph R. Guerra, SIDLEY AUSTIN LLP, Washington, D.C., Emma L. Dill, BRYAN CAVE LLP, San Francisco, California, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, G. David Carter, Joseph P. Bowser, Hunter T. Carter, ARENT FOX LLP, Washington, D.C., Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Harlan D. Karp, Cleveland, Ohio, for Amici Curiae. 14-5291: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, Shannon R. Fauver, Dawn R. Elliott, FAUVER LAW OFFICE, PLLC, Louisville, Kentucky, for Appellees. David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Stanton L. Cave, LAW OFFICE OF STAN CAVE, Lexington, Kentucky, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER, LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Suzanne B. Goldberg,

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COLUMBIA LAW SCHOOL, New York, New York, Joshua A. Block, Chase Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., for Amici Curiae. 14-5297: Joseph F. Whalen, Martha A. Campbell, Kevin G. Steiling, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. William L. Harbison, Phillip F. Cramer, J. Scott Hickman, John L. Farringer, SHERRARD & ROE, PLC, Nashville, Tennessee, Abby R. Rubenfeld, RUBENFELD LAW OFFICE, PC, Nashville, Tennessee, Maureen T. Holland, HOLLAND AND ASSOCIATES, PLLC, Memphis, Tennessee, Regina M. Lambert, Knoxville, Tennessee, Shannon P. Minter, Christopher F. Stoll, Amy Whelan, Asaf Orr, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Appellees. Deborah J. Dewart, Swansboro, North Carolina, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Barbara J. Chisholm, P. Casey Pitts, ALTSHULER BERZON LLP, San Francisco, California, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Joshua A. Block, Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN

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GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, for Amici Curiae. 14-5818: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees. Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, for Amicus Curiae.
SUTTON, J., delivered the opinion of the court, in which COOK, J., joined. DAUGHTREY, J. (pp. 43–64), delivered a separate dissenting opinion.
_________________

OPINION _________________

SUTTON, Circuit Judge. This is a case about change—and how best to handle it under the United States Constitution. From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago. For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.
But things change, sometimes quickly. Since 2003, nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples, some through state legislation, some through initiatives of the people, some through state court decisions, and some through the actions of state governors and attorneys general who opted not to appeal adverse court decisions. Nor does this momentum show any signs of slowing. Twelve of the nineteen States that now recognize gay marriage did so in the last couple of years. On top of that, four federal courts of appeals have compelled several other States to permit same-sex marriages under the Fourteenth Amendment.

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What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, libertyassuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?
Through a mixture of common law decisions, statutes, and constitutional provisions, each State in the Sixth Circuit has long adhered to the traditional definition of marriage. Sixteen gay and lesbian couples claim that this definition violates their rights under the Fourteenth Amendment. The circumstances that gave rise to the challenges vary. Some involve a birth, others a death. Some involve concerns about property, taxes, and insurance, others death certificates and rights to visit a partner or partner’s child in the hospital. Some involve a couple’s effort to obtain a marriage license within their State, others an effort to achieve recognition of a marriage solemnized in another State. All seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

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I.
Michigan. One case comes from Michigan, where state law has defined marriage as a relationship between a man and a woman since its territorial days. See An Act Regulating Marriages § 1 (1820), in 1 Laws of the Territory of Michigan 646, 646 (1871). The State reaffirmed this view in 1996 when it enacted a law that declared marriage “inherently a unique relationship between a man and a woman.” Mich. Comp. Laws § 551.1. In 2004, after the Massachusetts Supreme Judicial Court invalidated the Commonwealth’s prohibition on same-sex marriage, Goodridge v. Dep’t of Pub. Health , 798 N.E.2d 941 (Mass. 2003), nearly fifty-nine percent of Michigan voters opted to constitutionalize the State’s definition of marriage. “To secure and preserve the benefits of marriage for our society and for future generations of children,” the amendment says, “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Mich. Const. art. I, § 25.
April DeBoer and Jayne Rowse, a lesbian couple living in Michigan, challenge the constitutionality of this definition. Marriage was not their first objective. DeBoer and Rowse each had adopted children as single parents, and both wanted to serve as adoptive parents for the other partner’s children. Their initial complaint alleged that Michigan’s adoption laws violated the Equal Protection Clause of the Fourteenth Amendment. The State moved to dismiss the lawsuit for lack of standing, and the district court tentatively agreed. Rather than dismissing the action, the court “invit[ed the] plaintiffs to seek leave to amend their complaint to . . . challenge” Michigan’s laws denying them a marriage license. DeBoer R. 151 at 3. DeBoer and Rowse accepted the invitation and filed a new complaint alleging that Michigan’s marriage laws violated the due process and equal protection guarantees of the Fourteenth Amendment.
Both sets of parties moved for summary judgment. The district court concluded that the dispute raised “a triable issue of fact” over whether the “rationales” for the Michigan laws furthered “a legitimate state interest,” and it held a nine-day trial on the issue. DeBoer R. 89 at 4, 8. The plaintiffs’ experts testified that same-sex couples raise children as well as opposite-sex couples, and that denying marriage to same-sex couples creates instabilities for their children and families. The defendants’ experts testified that the evidence regarding the comparative success of children raised in same-sex households is inconclusive. The district court sided with the

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plaintiffs. It rejected all of the State’s bases for its marriage laws and concluded that the laws failed to satisfy rational basis review.
Kentucky. Two cases challenge two aspects of Kentucky’s marriage laws. Early on, Kentucky defined marriage as “the union of a man and a woman.” Jones v. Hallahan , 501 S.W.2d 588, 589 (Ky. 1973); see An Act for Regulating the Solemnization of Marriages § 1, 1798 Ky. Acts 49, 49–50. In 1998, the Kentucky legislature codified the common law definition. The statute says that “‘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.” Ky. Rev. Stat. § 402.005. In 2004, the Kentucky legislature proposed a constitutional amendment providing that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.” Ky. Const. § 233A. Seventy-four percent of the voters approved the amendment.
Two groups of plaintiffs challenge these Kentucky laws. One group, the fortuitously named Love plaintiffs, challenges the Commonwealth’s marriage-licensing law. Two couples filed that lawsuit: Timothy Love and Lawrence Ysunza, along with Maurice Blanchard and Dominique James. Both couples claim that the Fourteenth Amendment prohibits Kentucky from denying them marriage licenses.
The other group, the Bourke plaintiffs, challenges the ban on recognizing out-of-state same-sex marriages. Four same-sex couples filed the lawsuit: Gregory Bourke and Michael DeLeon; Jimmy Meade and Luther Barlowe; Randell Johnson and Paul Campion; and Kimberly Franklin and Tamera Boyd. All four couples were married outside Kentucky, and they contend that the State’s recognition ban violates their due process and equal protection rights. Citing the hardships imposed on them by the recognition ban—loss of tax breaks, exclusion from intestacy laws, loss of dignity—they seek to enjoin its enforcement.
The district court ruled for the plaintiffs in both cases. In Love, the court held that the Commonwealth could not justify its definition of marriage on rational basis grounds. It also thought that classifications based on sexual orientation should be subjected to intermediate

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scrutiny, which the Commonwealth also failed to satisfy. In Bourke, the court invalidated the recognition ban on rational basis grounds.
Ohio. Two cases challenge Ohio’s refusal to recognize out-of-state same-sex marriages. Ohio also has long adhered to the traditional definition of marriage. See An Act Regulating Marriages § 1, 1803 Ohio Laws 31, 31; Carmichael v. State , 12 Ohio St. 553, 560 (1861). It reaffirmed this definition in 2004, when the legislature passed a Defense of Marriage Act, which says that marriage “may only be entered into by one man and one woman.” Ohio Rev. Code § 3101.01(A). “Any marriage entered into by persons of the same sex in any other jurisdiction,” it adds, “shall be considered and treated in all respects as having no legal force or effect.” Id. § 3101.01(C)(2). Later that same year, sixty-two percent of Ohio voters approved an amendment to the Ohio Constitution along the same lines. As amended, the Ohio Constitution says that Ohio recognizes only “a union between one man and one woman” as a valid marriage. Ohio Const. art. XV, § 11.
Two groups of plaintiffs challenge these Ohio laws. The first group, the Obergefell plaintiffs, focuses on one application of the law. They argue that Ohio’s refusal to recognize their out-of-state marriages on Ohio-issued death certificates violates due process and equal protection. Two same-sex couples in long-term, committed relationships filed the lawsuit: James Obergefell and John Arthur; and David Michener and William Herbert Ives. All four of them are from Ohio and were married in other States. When Arthur and Ives died, the State would not list Obergefell and Michener as spouses on their death certificates. Obergefell and Michener sought an injunction to require the State to list them as spouses on the certificates. Robert Grunn, a funeral director, joined the lawsuit, asking the court to protect his right to recognize same-sex marriages on other death certificates.
The second group, the Henry plaintiffs, raises a broader challenge. They argue that Ohio’s refusal to recognize out-of-state marriages between same-sex couples violates the Fourteenth Amendment no matter what marital benefit is affected. The Henry case involves four same-sex couples, all married in other States, who want Ohio to recognize their marriages on their children’s birth certificates. Three of the couples (Brittani Henry and Brittni Rogers; Nicole and Pam Yorksmith; Kelly Noe and Kelly McCracken) gave birth to children in Ohio and wish to have both of their names listed on each child’s birth certificate rather than just the child’s

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biological mother. The fourth couple (Joseph Vitale and Robert Talmas) lives in New York and adopted a child born in Ohio. They seek to amend their son’s Ohio birth certificate so that it lists both of them as parents.
The district court granted the plaintiffs relief in both cases. In Obergefell, the court concluded that the Fourteenth Amendment protects a fundamental right to keep existing marital relationships intact, and that the State failed to justify its law under heightened scrutiny. The court likewise concluded that classifications based on sexual orientation deserve heightened scrutiny under equal protection, and that Ohio failed to justify its refusal to recognize the couples’ existing marriages. Even under rational basis review, the court added, the State came up short. In Henry, the district court reached many of the same conclusions and expanded its recognition remedy to encompass all married same-sex couples and all legal incidents of marriage under Ohio law.
Tennessee. The Tennessee case is of a piece with the two Ohio cases and one of the Kentucky cases, as it too challenges the State’s same-sex-marriage recognition ban. Tennessee has always defined marriage in traditional terms. See An Act Concerning Marriages § 3 (1741), in Public A cts of the G eneral Assembly of North-Carolina and Tennessee 46, 46 (1815). In 1996, the Tennessee legislature reaffirmed “that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.” Tenn. Code Ann. § 36-3-113(a). In 2006, the State amended its constitution to incorporate the existing definition of marriage. See Tenn. Const. art. XI, § 18. Eighty percent of the voters supported the amendment.
Three same-sex couples, all in committed relationships, challenge the recognition ban: Valeria Tanco and Sophy Jesty; Ijpe DeKoe and Thomas Kostura; and Johno Espejo and Matthew Mansell. All three couples were legally married in other States. The district court preliminarily enjoined the law. Relying on district court decisions within the circuit and elsewhere, the court concluded that the couples likely would show that Tennessee’s ban failed to satisfy rational basis review. The remaining preliminary injunction factors, the court held, also weighed in the plaintiffs’ favor.

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All four States appealed the decisions against them.
II.
Does the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment require States to expand the definition of marriage to include same-sex couples? The Michigan appeal (DeBoer) presents this threshold question, and so does one of the Kentucky appeals (Love). Caselaw offers many ways to think about the issue.
A.
Perspective of an in termediate co urt. Start with a recognition of our place in the hierarchy of the federal courts. As an “inferior” court (the Constitution’s preferred term, not ours), a federal court of appeals begins by asking what the Supreme Court’s precedents require on the topic at hand. Just such a precedent confronts us.
In the early 1970s, a Methodist minister married Richard Baker and James McConnell in Minnesota. Afterwards, they sought a marriage license from the State. When the clerk of the state court denied the request, the couple filed a lawsuit claiming that the denial of their request violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The Minnesota Supreme Court rejected both claims. As for the due process claim, the state court reasoned: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. . . . This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause . . . is not a charter for restructuring it by judicial legislation.” Id. As for the equal protection claim, the court reasoned: “[T]he state’s classification of persons authorized to marry” does not create an “irrational or invidious discrimination. . . . [T]hat the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate . . . [creates only a] theoretically imperfect [classification] . . . [and] ‘abstract symmetry’ is not demanded by the Fourteenth Amendment.” Id. at 187. The Supreme Court’s decision four years earlier in Loving v. Virginia, 388 U.S. 1 (1967), which invalidated Virginia’s ban on interracial marriages, did not change this conclusion. “[I]n commonsense and in a constitutional sense,” the state court

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explained, “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Baker, 191 N.W.2d at 187.
Baker and McConnell appealed to the United States Supreme Court. The Court rejected their challenge, issuing a one-line order stating that the appeal did not raise “a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 810 (1972). This type of summary decision, it is true, does not bind the Supreme Court in later cases. But it does confine lower federal courts in later cases. It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” Hicks v. Miranda, 422 U.S. 332, 345 (1975) (internal quotation marks omitted). The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.
But that was then; this is now. And now, claimants insist, must account for United States v. Windsor, 133 S. Ct. 2675 (2013), which invalidated the Defense of Marriage Act of 1996, a law that refused for purposes of federal statutory benefits to respect gay marriages authorized by state law. Yet Windsor does not answer today’s question. The decision never mentions Baker, much less overrules it. And the outcomes of the cases do not clash. Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it. To respect one decision does not slight the other. Nor does Windsor’s reasoning clash with Baker. Windsor hinges on the Defense of Marriage Act’s unprecedented intrusion into the States’ authority over domestic relations. Id. at 2691–92. Before the Act’s passage in 1996, the federal government had traditionally relied on state definitions of marriage instead of purporting to define marriage itself. Id. at 2691. That premise does not work—it runs the other way—in a case involving a challenge in federal court to state laws defining marriage. The point of Windsor was to prevent the Federal Government from “divest[ing]” gay couples of “a dignity and status of immense import” that New York’s extension of the definition of marriage gave them, an extension that “without doubt” any State could provide. Id. at 2692, 2695. Windsor made explicit that it does not answer today’s question, telling us that the “opinion and its holding are confined to . . . lawful

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marriages” already protected by some of the States. Id. at 2696. Bringing the matter to a close, the Court held minutes after releasing Windsor that procedural obstacles in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), prevented it from considering the validity of state marriage laws. Saying that the Court declined in Hollingsworth to overrule Baker openly but decided in Windsor to overrule it by stealth makes an unflattering and unfair estimate of the Justices’ candor.
Even if Windsor did not overrule Baker by name, the claimants point out, lower courts still may rely on “doctrinal developments” in the aftermath of a summary disposition as a ground for not following the decision. Hicks, 422 U.S. at 344. And Windsor, they say, together with Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996), permit us to cast Baker aside. But this reading of “doctrinal developments” would be a groundbreaking development of its own. From the perspective of a lower court, summary dispositions remain “controlling precedent, unless and until re-examined by [the Supreme] Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976); see Hicks, 422 U.S. at 343–45. And the Court has told us to treat the two types of decisions, whether summary dispositions or full-merits decisions, the same, “prevent[ing] lower courts” in both settings “from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley , 432 U.S. 173, 176 (1977). Lest doubt remain, the Court has also told us not to ignore its decisions even when they are in tension with a new line of cases. “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, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see Agostini v. Felton, 521 U.S. 203, 237 (1997).
Just two scenarios, then, permit us to ignore a Supreme Court decision, whatever its form: when the Court has overruled the decision by name (if, say, Windsor had directly overruled Baker) or when the Court has overruled the decision by outcome (if, say, Hollingsworth had invalidated the California law without mentioning Baker). Any other approach returns us to a world in which the lower courts may anticipatorily overrule all manner of Supreme Court decisions based on counting-to-five predictions, perceived trajectories in the caselaw, or, worst of all, new appointments to the Court. In the end, neither of the two preconditions for ignoring Supreme Court precedent applies here. Windsor as shown does not

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mention Baker, and it clarifies that its “opinion and holding” do not govern the States’ authority to define marriage. Hollingsworth was dismissed. And neither Lawrence nor Romer mentions Baker, and neither is inconsistent with its outcome. The one invalidates a State’s criminal antisodomy law and explains that the case “does not involve . . . formal recognition” of same-sex relationships. Lawrence, 539 U.S. at 578. The other invalidates a “[s]weeping” and “unprecedented” state law that prohibited local communities from passing laws that protect citizens from discrimination based on sexual orientation. Romer, 517 U.S. at 627, 633, 635–36.
That brings us to another one-line order. On October 6, 2014, the Supreme Court “denied” the “petitions for writs of certiorari” in 1,575 cases, seven of which arose from challenges to decisions of the Fourth, Seventh, and Tenth Circuits that recognized a constitutional right to same-sex marriage. But this kind of action (or inaction) “imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States v. Carver , 260 U.S. 482, 490 (1923). “The ‘variety of considerations [that] underlie denials of the writ’ counsels against according denials of certiorari any precedential value.” Teague v. Lane , 489 U.S. 288, 296 (1989) (internal citation omitted). Just as the Court’s three decisions to stay those same court of appeals decisions over the past year, all without a registered dissent, did not end the debate on this issue, so too the Court’s decision to deny certiorari in all of these appeals, all without a registered dissent, does not end the debate either. A decision not to decide is a decision not to decide.
But don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not. Even if we grant the premise and assume that same-sex marriage will be recognized one day in all fifty States, that does not tell us how— whether through the courts or through democracy. And, if through the courts, that does not tell us why—whether through one theory of constitutional invalidity or another. Four courts of appeals thus far have recognized a constitutional right to same-sex marriage. They agree on one thing: the result. But they reach that outcome in many ways, often more than one way in the same decision. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (fundamental rights); Baskin v. Bogan , 766 F.3d 648 (7th Cir. 2014) (rational basis, animus); Latta v. Otter , No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) (animus, fundamental rights, suspect classification); Bishop v. Smith , 760 F.3d 1070 (10th Cir. 2014) (fundamental rights); Kitchen v. Herbert ,

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755 F.3d 1193 (10th Cir. 2014) (same). The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories. If a federal court denies the people suffrage over an issue long thought to be within their power, they deserve an explanation. We, for our part, cannot find one, as several other judges have concluded as well. See Bostic, 760 F.3d at 385–98 (Niemeyer, J., dissenting); Kitchen, 755 F.3d at 1230–40 (Kelly, J., concurring in part and dissenting in part); Conde-Vidal v. Garcia-Padilla , No. 14-1253-PG, 2014 WL 5361987 (D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014).
There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
B.
Original meaning. All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it. If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation—that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. See U.S. Const. art. V. If American lawyers in all manner of settings still invoke the original meaning of Magna Carta, a Charter for England in 1215, surely it is not too much to ask that they (and we) take seriously the original meaning of the United States Constitution, a Charter for this country in 1789. Any other approach, too

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lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it.
Many precedents gauging individual rights and national power, leading to all manner of outcomes, confirm the import of original meaning in legal debates. See, e.g. , Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173–80 (1803); McCulloch v. Ma ryland, 17 U.S. (4 Wheat.) 316, 401–25 (1819); Legal Tender C ases, 79 U.S. 457, 536–38 (1870); Myers v. United States , 272 U.S. 52, 110–39 (1926); INS v. Chadha , 462 U.S. 919, 944–59 (1983); Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 218–25 (1995); Washington v. Glucksburg , 521 U.S. 702, 710–19 (1997); Crawford v. Washington, 541 U.S. 36, 42–50 (2004); Boumediene v. Bush, 553 U.S. 723, 739–46 (2008); Giles v. California, 554 U.S. 353, 358–61 (2008); District of Columbia v. Heller, 554 U.S. 570, 576–600 (2008).
In trying to figure out the original meaning of a provision, it is fair to say, the line between interpretation and evolution blurs from time to time. That is an occupational hazard for judges when it comes to old or generally worded provisions. Yet that knotty problem does not confront us. Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded; it says: “[N]or 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.” Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.
Tradition reinforces the point. Only months ago, the Supreme Court confirmed the significance of long-accepted usage in constitutional interpretation. In one case, the Court held that the customary practice of opening legislative meetings with prayer alone proves the constitutional permissibility of legislative prayer, quite apart from how that practice might fare under the most up-to-date Establishment Clause test. Town of Greece v. Galloway , 134 S. Ct. 1811, 1818–20 (2014). In another case, the Court interpreted the Recess Appointments Clause based in part on long-accepted usage. NLRB v. Noel Canning, 134 S. Ct. 2550, 2559–60 (2014). Applied here, this approach permits today’s marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.

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C.
Rational basis review. Doctrine leads to the same place as history. A first requirement of any law, whether under the Due Process or Equal Protection Clause, is that it rationally advance a legitimate government policy. Vance v. B radley, 440 U.S. 93, 97 (1979). Two words (“judicial restraint,” FCC v. Beach Commc’ns, Inc. , 508 U.S. 307, 314 (1993)) and one principle (trust in the people that “even improvident decisions will eventually be rectified by the democratic process,” Vance, 440 U.S. at 97) tell us all we need to know about the light touch judges should use in reviewing laws under this standard. So long as judges can conceive of some “plausible” reason for the law—any plausible reason, even one that did not motivate the legislators who enacted it—the law must stand, no matter how unfair, unjust, or unwise the judges may consider it as citizens. Heller v. Doe, 509 U.S. 312, 330 (1993); Nordlinger v. Hahn, 505 U.S. 1, 11, 17–18 (1992).
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition. What is it? Two at a minimum suffice to meet this low bar. One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.
Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way

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to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues. Dandridge v. Williams, 397 U.S. 471, 486–87 (1970).
No doubt, that is not the only way people view marriage today. Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers. Yet it does not show that the States, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.
The signature feature of rational basis review is that governments will not be placed in the dock for doing too much or for doing too little in addressing a policy question. Id. In a modern sense, crystallized at some point in the last ten years, many people now critique state marriage laws for doing too little—for being underinclusive by failing to extend the definition of marriage to gay couples. Fair enough. But rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial factfinding. If legislative choices may rest on “rational speculation unsupported by evidence or empirical data,” Beach Commc’ns , 508 U.S. at 315, it is hard to see the point of premising a ruling of unconstitutionality on factual findings made by one unelected federal judge that favor a different policy. Rational basis review does not empower federal courts to “subject” legislative line-

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drawing to “courtroom” factfinding designed to show that legislatures have done too much or too little. Id.
What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.
To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. As a matter of state law, the possibility of gay marriage became real in 2003 with the Massachusetts Supreme Judicial Court’s decision in Goodridge. Eleven years later, the clock has not run on assessing the benefits and burdens of expanding the definition of marriage. Eleven years indeed is not even the right timeline. The fair question is whether in 2004, one year after Goodridge, Michigan voters could stand by the traditional definition of marriage. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a

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dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.
In accepting these justifications for the four States’ marriage laws, we do not deny the foolish, sometimes offensive, inconsistencies that have haunted marital legislation from time to time. States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect. States will not even prevent an individual from remarrying the same person three or four times, where practice no longer seems to be the issue. With love and commitment nowhere to be seen, States will grant a marriage license to two friends who wish to share in the tax and other material benefits of marriage, at least until the State’s no-fault divorce laws allow them to exit the partnership freely. And States allow couples to continue procreating no matter how little stability, safety, and love they provide the children they already have. Nor has unjustified sanctimony stayed off the stage when it comes to marital legislation—with monogamists who “do not monog” criticizing alleged polygamists who “do not polyg.” See Paul B. Beers, Pennsylvania Politics Today and Yesterday 51 (1980).
How, the claimants ask, could anyone possibly be unworthy of this civil institution? Aren’t gay and straight couples both capable of honoring this civil institution in some cases and of messing it up in others? All of this, however, proves much too much. History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed. Even if we think about today’s issue and today’s alleged inconsistencies solely from the perspective of the claimants in this case, it is difficult to call that formula, already coming to terms with a new view of marriage, a failure.
Any other approach would create line-drawing problems of its own. Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little

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because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there. No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails.
Several cases illustrate just how seriously the federal courts must take the line-drawing deference owed the democratic process under rational basis review. Massachusetts Board of Retirement v. Murgia , 427 U.S. 307 (1976), holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-year-olds swim/bike/run triathlons), why doesn’t a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don’t have kids and many gay couples do)? Armour v. City of Indianapolis , 132 S. Ct. 2073 (2012), says that if a city cancels a tax, the bureaucratic hassle of issuing refunds entitles it to keep money already collected from citizens who paid early. If administrative convenience amounts to an adequate public purpose, why not a rough sense of social stability? More deferential still, Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552 (1947), concludes that a State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism?
The debate over marriage of course has another side, and we cannot deny the costs to the plaintiffs of allowing the States to work through this profound policy debate. The traditional definition of marriage denies gay couples the opportunity to publicly solemnize, to say nothing

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of subsidize, their relationships under state law. In addition to depriving them of this status, it deprives them of benefits that range from the profound (the right to visit someone in a hospital as a spouse or parent) to the mundane (the right to file joint tax returns). These harms affect not only gay couples but also their children. Do the benefits of standing by the traditional definition of marriage make up for these costs? The question demands an answer—but from elected legislators, not life-tenured judges. Our task under the Supreme Court’s precedents is to decide whether the law has some conceivable basis, not to gauge how that rationale stacks up against the arguments on the other side. Respect for democratic control over this traditional area of state expertise ensures that “a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage” can have free and reasonable rein. Windsor, 133 S. Ct. at 2689.
D.
Animus. Given the broad deference owed the States under the democracy-reinforcing norms of rational basis review, the cases in which the Supreme Court has struck down a state law on that basis are few. When the Court has taken this step, it usually has been due to the novelty of the law and the targeting of a single group for disfavored treatment under it. In one case, a city enacted a new zoning code with the none-too-subtle purpose of closing down a home for the intellectually disabled in a neighborhood that apparently wanted nothing to do with them. The reality that the code applied only to homes for the intellectually disabled—and not to other dwellings such as fraternity houses—led the Court to invalidate the regulation on the ground that the city had based it upon “an irrational prejudice against the mentally retarded.” City o f Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 450 (1985). In another case, a statewide initiative denied gays, and gays alone, access to the protection of the State’s existing antidiscrimination laws. The novelty of the law, coupled with the distance between the reach of the law and any legitimate interest it might serve, showed that the law was “born of animosity toward” gays and suggested a design to make gays “unequal to everyone else.” Romer, 517 U.S. at 634–35.
None of the statewide initiatives at issue here fits this pattern. The four initiatives, enacted between 2004 and 2006, codified a long-existing, widely held social norm already reflected in state law. “[M]arriage between a man and a woman,” as the Court reminded us just

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last year, “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.” Windsor, 133 S. Ct. at 2689.
Neither was the decision to place the definition of marriage in a State’s constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period. Human Rights Campaign Found., Equality from State to State 2006 , at 13–14 (2006), available at http://s3.amazonaws.com/hrc-assets//files/assets/resources/StateToState2007.pdf. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.
Who in retrospect can blame the voters for having this fear? By then, several state courts had altered their States’ traditional definitions of marriage under the States’ constitutions. Since then, more have done the same. Just as state judges have the authority to construe a state constitution as they see fit, so do the people have the right to overrule such decisions or preempt them as they see fit. Nor is there anything static about this process. In some States, the people have since re-amended their constitutions to broaden the category of those eligible to marry. In other States, the people seemed primed to do the same but for now have opted to take a waitand-see approach of their own as federal litigation proceeds. See, e.g., Wesley Lowery, SameSex Marriage Is Gaining Mome ntum, but Some Advocates Don’ t W ant I t on the Ballo t in Ohio, Wash. Post (June 14, 2014), http://www.washingtonpost.com/politics/same-sex-marriageis-gaining-momentum-but-ohio-advocates-dont-want-it-on-the-ballot/2014/06/14/a090452ae77e-11e3-afc6-a1dd9407abcf_story.html (explaining that Ohio same-sex marriage advocates opted not to place the question on the 2014 state ballot despite collecting nearly twice the number of required signatures). What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette v. Coal. to De fend Affirm ative Action , 134 S. Ct. 1623, 1638 (2014). “It is demeaning to the

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democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Id. at 1637.
What of the possibility that other motivations affected the amendment process in the four States? If assessing the motives of multimember legislatures is difficult, assessing the motives of all voters in a statewide initiative strains judicial competence. The number of people who supported each initiative—Michigan (2.7 million), Kentucky (1.2 million), Ohio (3.3 million), and Tennessee (1.4 million)—was large and surely diverse. In addition to the proper role of the courts in a democracy, many other factors presumably influenced the voters who supported and opposed these amendments: that some politicians favored the amendment and others opposed it; that some faith groups favored the amendment and others opposed it; that some thought the amendment would strengthen families and others thought it would weaken them or were not sure; that some thought the amendment would be good for children and others thought it would not be or were not sure; and that some thought the amendment would preserve a long-established definition of marriage and others thought it was time to accommodate gay couples. Even a rough sense of morality likely affected voters, with some thinking it immoral to exclude gay couples and others thinking the opposite. For most people, whether for or against the amendment, the truth of why they did what they did is assuredly complicated, making it impossible to pin down any one consideration, as opposed to a rough aggregation of factors, as motivating them. How in this setting can we indict the 2.7 million Michigan voters who supported the amendment in 2004, less than one year after the first state supreme court recognized a constitutional right to gay marriage, for favoring the amendment for prejudicial reasons and for prejudicial reasons alone? Any such conclusion cannot be squared with the benefit of the doubt customarily given voters and legislatures under rational basis review. Even the gay-rights community, remember, was not of one mind about taking on the benefits and burdens of marriage until the early 1990s. See George Chauncey, Why Marriage? The History Shaping Today’s Debate over Gay Equality 58, 88 (2004); Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage 48–52 (2013). A decade later, a State’s voters should not be taken to task for failing to be of one mind about the issue themselves.

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Some equanimity is in order in assessing the motives of voters who invoked a constitutionally respected vehicle for change and for resistance to change: direct democracy. See Pac. States Tel. & Tel. Co. v. Oregon , 223 U.S. 118, 151 (1912). Just as gay individuals are no longer abstractions, neither should we treat States as abstractions. Behind these initiatives were real people who teach our children, create our jobs, and defend our shores. Some of these people supported the initiative in 2004; some did not. It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families. “Tolerance,” like respect and dignity, is best traveled on a “two-way street.” Ward v. Polite, 667 F.3d 727, 735 (6th Cir. 2012). If there is a dominant theme to the Court’s cases in this area, it is to end otherness, not to create new others.
All of this explains why the Court’s decisions in City of Cleburne and Romer do not turn on reading the minds of city voters in one case or of statewide initiative supporters in the other. They turn on asking whether anything but prejudice to the affected class could explain the law. See City of Cleburne, 473 U.S. at 450; Romer, 517 U.S. at 635. No such explanations existed in those cases. Plenty exist here, as shown above and as recognized by many others. See Lawrence, 539 U.S. at 585 (O’Connor, J., concurring in the judgment) (“Unlike the moral disapproval of same-sex relations[,] . . . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”); Bishop, 760 F.3d at 1104–09 (Holmes, J., concurring) (same); Citizens for Equal Prot. v. Bruning , 455 F.3d 859, 868 (8th Cir. 2006) (enactment not “‘inexplicable by anything but animus’ towards same-sex couples”); Conaway v. Deane, 932 A.2d 571, 635 (Md. 2007) (no reason to “infer antipathy”); Hernandez v. Robles , 855 N.E.2d 1, 8 (N.Y. 2006) (those who favor the traditional definition are not “irrational, ignorant or bigoted”); Andersen v. King Cnty. , 138 P.3d 963, 981 (Wash. 2006) (en banc) (“the only reason” for the law was not “anti-gay sentiment”).
One other point. Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common

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law definitions of marriage applicable to one man and one woman—definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States’ other marital laws on state constitutional grounds. No one filed such a challenge here, however.
E.
Fundamental right to marry. Under the Due Process Clause, courts apply more muscular review—“strict,” “rigorous,” usually unforgiving, scrutiny—to laws that impair “fundamental” rights. In considering the claimants’ arguments that they have a fundamental right to marry each other, we must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects—from education to healthcare to living conditions to decisions about when to die— would be subject to unforgiving review. They are not. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (public education); Maher v. Roe , 432 U.S. 464, 469 (1977) (healthcare); Lindsey v. Normet , 405 U.S. 56, 73–74 (1972) (housing); Glucksberg, 521 U.S. at 728 (right to die). Instead, the question is whether our nation has treated the right as fundamental and therefore worthy of protection under substantive due process. More precisely, the test is whether the right is “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 721 (internal citations omitted). That requirement often is met by placing the right in the Constitution, most obviously in (most of) the guarantees in the Bill of Rights. See id. at 720. But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist.
That leaves the other option—that, even though a proposed right to same-sex marriage does not appear in the Constitution, it turns on bedrock assumptions about liberty. This too does not work. The first state high court to redefine marriage to include gay couples did not do so until 2003 in Goodridge.
Matters do not change because Loving v. Virginia , 388 U.S. 1 (1967), held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between

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a man and a woman no doubt [was] thought of . . . as essential to the very definition of that term.” Windsor, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. Had a gay AfricanAmerican male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.
A similar problem confronts the claimants’ reliance on other decisions treating marriage as a fundamental right, whether in the context of a statute denying marriage licenses to fathers who could not pay child support, Zablocki v. Redhail, 434 U.S. 374, 383 (1978), or a regulation restricting prisoners’ ability to obtain marriage licenses, Turner v. Safley , 482 U.S. 78, 94–95 (1987). It strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.
No doubt, many people, many States, even some dictionaries, now define marriage in a way that is untethered to biology. But that does not transform the fundamental-rights decision of Loving under the old definition into a constitutional right under the new definition. The question is whether the old reasoning applies to the new setting, not whether we can shoehorn new meanings into old words. Else, evolving-norm lexicographers would have a greater say over the meaning of the Constitution than judges.

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The upshot of fundamental-rights status, keep in mind, is strict-scrutiny status, subjecting all state eligibility rules for marriage to rigorous, usually unforgiving, review. That makes little sense with respect to the trials and errors societies historically have undertaken (and presumably will continue to undertake) in determining who may enter and leave a marriage. Start with the duration of a marriage. For some, marriage is a commitment for life and beyond. For others, it is a commitment for life. For still others, it is neither. In 1969, California enacted the first pure no-fault divorce statute. See Family Law Act of 1969, 1969 Cal. Stat. 3312. A dramatic expansion of similar laws followed. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev. 79, 90. The Court has never subjected these policy fits and starts about who may leave a marriage to strict scrutiny.
Consider also the number of people eligible to marry. As late as the eighteenth century, “[t]he predominance of monogamy was by no means a foregone conclusion,” and “[m]ost of the peoples and cultures around the globe” had adopted a different system. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 9 (2000). Over time, American officials wove monogamy into marriage’s fabric. Beginning in the nineteenth century, the federal government “encouraged or forced” Native Americans to adopt the policy, and in 1878 the Supreme Court upheld a federal antibigamy law. Id. at 26; see Reynolds v. United States , 98 U.S. 145 (1878). The Court has never taken this topic under its wing. And if it did, how would the constitutional, as opposed to policy, arguments in favor of same-sex marriage not apply to plural marriages?
Consider finally the nature of the individuals eligible to marry. The age of consent has not remained constant, for example. Under Roman law, men could marry at fourteen, women at twelve. The American colonies imported that rule from England and kept it until the mid-1800s, when the people began advocating for a higher minimum age. Today, all but two States set the number at eighteen. See Vivian E. Hamilton, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage, 92 B.U. L. Rev. 1817, 1824–32 (2012). The same goes for the social acceptability of marriage between cousins, a union deemed “desirable in many parts of the world”; indeed, around “10 percent of marriages worldwide are between people who are second cousins or closer.” Sarah Kershaw, Living Together: Shaking Off the Shame, N.Y. Times (Nov. 25, 2009), http://www.nytimes.com/2009/11/26/garden/26cousins.html. Even in the United States, cousin marriage was not prohibited until the mid-nineteenth century, when

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Kansas—followed by seven other States—enacted the first ban. See Diane B. Paul & Hamish G. Spencer, “It’s Ok, We’re Not Cousin s by Blood”: The Cousin Marriage Controversy in Historical Perspective, 6 PLoS Biology 2627, 2627 (2008). The States, however, remain split: half of them still permit the practice. Ghassemi v. Ghassemi, 998 So. 2d 731, 749 (La. Ct. App. 2008). Strict scrutiny? Neither Loving nor any other Supreme Court decision says so.
F.
Discrete and insular class without political power. A separate line of cases, this one under the Equal Protection Clause, calls for heightened review of laws that target groups whom legislators have singled out for unequal treatment in the past. This argument faces an initial impediment. Our precedents say that rational basis review applies to sexual-orientation classifications. See Davis v. Prison Health Servs. , 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough v. Morgan Cnty. Bd. of Educ. , 470 F.3d 250, 260–61 (6th Cir. 2006); Stemler v. City of Florence, 126 F.3d 856, 873–74 (6th Cir. 1997).
There is another impediment. The Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in more than four decades. There are ample reasons for staying the course. Courts consider four rough factors in deciding whether to treat a legislative classification as suspect and presumptively unconstitutional: whether the group has been historically victimized by governmental discrimination; whether it has a defining characteristic that legitimately bears on the classification; whether it exhibits unchanging characteristics that define it as a discrete group; and whether it is politically powerless. See Rodriguez, 411 U.S. at 28.
We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens. Stonewall, Anita Bryant’s uninvited answer to the question “Who are we to judge?”, unequal enforcement of antisodomy laws between gay and straight partners, Matthew Shepard, and the language of insult directed at gays and others make it hard for anyone to deny the point. But we also cannot deny that the institution of marriage arose independently of this record of discrimination. The traditional definition of marriage goes back thousands of years and spans

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almost every society in history. By contrast, “American laws targeting same-sex couples did not
develop until the last third of the 20th century.” Lawrence, 539 U.S. at 570. This order of events prevents us from inferring from history that prejudice against gays led to the traditional
definition of marriage in the same way that we can infer from history that prejudice against
African Americans led to laws against miscegenation. The usual leap from history of
discrimination to intensification of judicial review does not work.
Windsor says nothing to the contrary. In arguing otherwise, plaintiffs mistake Windsor’s avoidance of one federalism question for avoidance of federalism altogether. Here is the key
passage:
Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, 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 marriage. “‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”
Windsor, 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633). Plaintiffs read these words (and others that follow) as an endorsement of heightened review in today’s case, pointing to the first
two sentences as proof that individual dignity, not federalism, animates Windsor’s holding.
Yet federalism permeates both parts of this passage and both parts of the opinion.
Windsor begins by expressing doubts about whether Congress has the delegated power to enact a statute like DOMA at all. But instead of resolving the case on the far-reaching enumerated-
power ground, it resolves the case on the narrower Romer ground—that anomalous exercises of power targeting a single group raise suspicion that bigotry rather than legitimate policy is afoot.
Why was DOMA anomalous? Only federalism can supply the answer. The national statute
trespassed upon New York’s time-respected authority to define the marital relation, including by
“enhanc[ing] the recognition, dignity, and protection” of gay and lesbian couples. Id. Today’s case involves no such “divest[ing]”/“depriv[ing]”/“undermin[ing]” of a marriage status granted

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through a State’s authority over domestic relations within its borders and thus provides no basis for inferring that the purpose of the state law was to “impose a disadvantage”/“a separate status”/“a stigma” on gay couples. Id. at 2692–95. When the Framers “split the atom of sovereignty,” U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838 (Kennedy, J., concurring), they did so to enhance liberty, not to allow the National Government to divest liberty protections granted by the States in the exercise of their historic and in this instance nearly exclusive power. What we have here is something entirely different. It is the States doing exactly what every State has been doing for hundreds of years: defining marriage as they see it. The only thing that has changed is the willingness of many States over the last eleven years to expand the definition of marriage to encompass gay couples.
Any other reading of Windsor would require us to subtract key passages from the opinion and add an inverted holding. The Court noted that New York “without doubt” had the power under its traditional authority over marriage to extend the definition of marriage to include gay couples and that Congress had no power to enact “unusual” legislation that interfered with the States’ long-held authority to define marriage. Windsor, 133 S. Ct. at 2692–93. A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago—to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead. That would leave the States with little authority to resolve ever-changing debates about how to define marriage (and the benefits and burdens that come with it) outside the beck and call of Congress and the Court. How odd that one branch of the National Government (Congress) would be reprimanded for entering the fray in 2013 and two branches of the same Government (the Court and Congress) would take control of the issue a short time later.
Nor, as the most modest powers of observation attest, is this a setting in which “political powerlessness” requires “extraordinary protection from the majoritarian political process.” Rodriguez, 411 U.S. at 28. This is not a setting in which dysfunction mars the political process. See Reynold s v. Sims , 377 U.S. 533 (1964); Baker v. Carr , 369 U.S. 186 (1962). It is not a setting in which the recalcitrance of Jim Crow demands judicial, rather than we-can’t-wait-

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forever legislative, answers. See Brown v. Bd. of Educ. , 347 U.S. 483 (1954). It is not a setting in which time shows that even a potentially powerful group cannot make headway on issues of equality. See Frontiero v. Richardson , 411 U.S. 677 (1973). It is not a setting where a national crisis—the Depression—seemingly demanded constitutional innovation. See W. Coast Hotel Co. v. Parrish , 300 U.S. 379 (1937). And it is not a setting, most pertinently, in which the local, state, and federal governments historically disenfranchised the suspect class, as they did with African Americans and women. See United States v. Carolene Prods. Co. , 304 U.S. 144, 152 n.4 (1938).
Instead, from the claimants’ perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold. Throughout that time, other advances for the claimants’ cause are manifest. Nationally, “Don’t Ask, Don’t Tell” is gone. Locally, the Cincinnati charter amendment that prevented gay individuals from obtaining certain preferences from the city, upheld by our court in 1997, Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati , 128 F.3d 289 (6th Cir. 1997), is no more. The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives—some succeed, some fail—particularly when succeeding more and failing less are in the offing.
Why, it is worth asking, the sudden change in public opinion? If there is one thing that seems to challenge hearts and minds, even souls, on this issue, it is the transition from the abstract to the concrete. If twenty-five percent of the population knew someone who was openly gay in 1985, and seventy-five percent knew the same in 2000, Klarman, supra, at 197, it is fair to wonder how few individuals still have not been forced to think about the matter through the lens of a gay friend or family member. That would be a discrete and insular minority.
The States’ undoubted power over marriage provides an independent basis for reviewing the laws before us with deference rather than with skepticism. An analogy shows why. When a state law targets noncitizens—a group marked by its lack of political power and its history of enduring discrimination—it must in general meet the most demanding of constitutional tests in order to survive a skirmish with a court. But when a federal law targets noncitizens, a mere rational basis will save it from invalidation. This disparity arises because of the Nation’s

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authority (and the States’ corresponding lack of authority) over international affairs. Mathews v. Diaz, 426 U.S. 67, 84–85 (1976). If federal preeminence in foreign relations requires lenient review of federal immigration classifications, why doesn’t state preeminence in domestic relations call for equally lenient review of state marriage definitions?
G.
Evolving meaning. If all else fails, the plaintiffs invite us to consider that “[a] core strength of the American legal system . . . is its capacity to evolve” in response to new ways of thinking about old policies. DeBoer Appellees’ Br. at 57–58. But even if we accept this invitation and put aside the past—original meaning, tradition, time-respected doctrine—that does not take the plaintiffs where they wish to go. We could, to be sure, look at this case alongside evolving moral and policy considerations. The Supreme Court has done so before. Lawrence, 539 U.S. at 573. It may do so again. “A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights . . . to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). Why not do so here?
Even on this theory, the marriage laws do not violate the Constitution. A principled jurisprudence of constitutional evolution turns on evolution in society’s values, not evolution in judges’ values. Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way. Lawrence, by contrast, dealt with a situation in which just thirteen States continued to prohibit sodomy, and even then most of those laws had fallen into desuetude, rarely being enforced at all. On this record, what right do we have to say that societal values, as opposed to judicial values, have evolved toward agreement in favor of same-sex marriage?
The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace. It follows that States must enjoy some latitude in matters of timing, for reasonable people can disagree about just when public norms have evolved enough to require a democratic response. Today’s case captures the point. Not long ago American society took for granted the rough correlation between marriage and creation of new life, a vision under which limiting

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marriage to opposite-sex couples seemed natural. Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today’s society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second.
If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another. So far, not a single United States Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment. No one would accuse the Supreme Court of acting irrationally in failing to recognize a right to same-sex marriage in 2013. Likewise, we should hesitate to accuse the States of acting irrationally in failing to recognize the right in 2004 or 2006 or for that matter today. Federal judges engaged in the inherent pacing that comes with living constitutionalism should appreciate the inherent pacing that comes with democratic majorities deciding within reasonable bounds when and whether to embrace an evolving, as opposed to settled, societal norm. The one form of pacing is akin to the other, making it anomalous for the Court to hold that the States act unconstitutionally when making reasonable pacing decisions of their own.
From time to time, the Supreme Court has looked beyond our borders in deciding when to expand the meaning of constitutional guarantees. Lawrence, 539 U.S. at 576. Yet foreign practice only reinforces the impropriety of tinkering with the democratic process in this setting. The great majority of countries across the world—including such progressive democracies as Australia and Finland—still adhere to the traditional definition of marriage. Even more telling, the European Court of Human Rights ruled only a few years ago that European human rights laws do not guarantee a right to same-sex marriage. Schalk & Kopf v. A ustria, 2010-IV Eur. Ct. H.R. 409. “The area in question,” it explained in words that work just as well on this side of the Atlantic, remains “one of evolving rights with no established consensus,” which means that States must “enjoy [discretion] in the timing of the introduction of legislative changes.” Id. at 438. It reiterated this conclusion as recently as this July, declaring that “the margin of appreciation to be afforded” to States “must still be a wide one.” Hämäläinen v. Finland, No. 37359/09, HUDOC, at *19 (Eur. Ct. H.R. July 16, 2014). Our Supreme Court relied on the

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European Court’s gay-rights decisions in Lawrence. 539 U.S. at 576. What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.
Other practical considerations also do not favor the creation of a new constitutional right here. While these cases present a denial of access to many benefits, what is “[o]f greater importance” to the claimants, as they see it, “is the loss of . . . dignity and respect” occasioned by these laws. Love Appellees’ Br. at 5. No doubt there is much to be said for “dignity and respect” in the eyes of the Constitution and its interpreters. But any loss of dignity and respect on this issue did not come from the Constitution. It came from the neighborhoods and communities in which gay and lesbian couples live, and in which it is worth trying to correct the problem in the first instance—and in that way “to allow the formation of consensus respecting the way the members” of a State “treat each other in their daily contact and constant interaction with each other.” Windsor, 133 S. Ct. at 2692.
For all of the power that comes with the authority to interpret the United States Constitution, the federal courts have no long-lasting capacity to change what people think and believe about new social questions. If the plaintiffs are convinced that litigation is the best way to resolve today’s debate and to change heads and hearts in the process, who are we to say? Perhaps that is not the only point, however. Yes, we cannot deny thinking the plaintiffs deserve better—earned victories through initiatives and legislation and the greater acceptance that comes with them. But maybe the American people too deserve better—not just in the sense of having a say through representatives in the legislature rather than through representatives in the courts, but also in the sense of having to come face to face with the issue. Rights need not be countermajoritarian to count. See, e.g. , Civil Rights Act of 1964, Pub. L. No. 88352, 78 Stat. 241. Isn’t the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups through majoritarian laws rather than through decisions issued by a majority of Supreme Court Justices? It is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.
Last, but not least, federal courts never expand constitutional guarantees in a vacuum. What one group wants on one issue from the courts today, another group will want on another

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issue tomorrow. The more the Court innovates under the Constitution, the more plausible it is for the Court to do still more—and the more plausible it is for other advocates on behalf of other issues to ask the Court to innovate still more. And while the expansion of liberal and conservative constitutional rights will solve, or at least sidestep, the amendment-difficulty problem that confronts many individuals and interest groups, it will exacerbate the judgeconfirmation problem. Faith in democracy with respect to issues that the Constitution has not committed to the courts reinforces a different, more sustainable norm.
III.
Does the Constitution prohibit a State from denying recognition to same-sex marriages conducted in other States? That is the question presented in the two Ohio cases (Obergefell and Henry), one of the Kentucky cases (Bourke), and the Tennessee case (Tanco). Our answer to the first question goes a long way toward answering this one. If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the State to stand by that definition with respect to couples married in other States or countries.
The Constitution in general does not delineate when a State must apply its own laws and when it must apply the laws of another State. Neither any federal statute nor federal common law fills the gap. Throughout our history, each State has decided for itself how to resolve clashes between its laws and laws of other sovereigns—giving rise to the field of conflict of laws. The States enjoy wide latitude in fashioning choice-of-law rules. Sun Oil Co. v. Wortman , 486 U.S. 717, 727–29 (1988); Allstate Ins. Co. v. Hague, 449 U.S. 302, 307–08 (1981).
The plaintiffs in these cases do not claim that refusal to recognize out-of-state gay and lesbian marriages violates the Full Faith and Credit Clause, the principal constitutional limit on state choice-of-law rules. Wisely so. The Clause “does not require a State to apply another State’s law in violation of its own legitimate public policy.” Nevada v. Hall, 440 U.S. 410, 422 (1979). If defining marriage as an opposite-sex relationship amounts to a legitimate public policy—and we have just explained that it does—the Full Faith and Credit Clause does not prevent a State from applying that policy to couples who move from one State to another.
The plaintiffs instead argue that failure to recognize gay marriages celebrated in other States violates the Due Process and Equal Protection Clauses. But we do not think that the

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invocation of these different clauses justifies a different result. As shown, compliance with the Due Process and Equal Protection Clauses in this setting requires only a rational relationship between the legislation and a legitimate public purpose. And a State does not behave irrationally by insisting upon its own definition of marriage rather than deferring to the definition adopted by another State. Preservation of a State’s authority to recognize, or to opt not to recognize, an outof-state marriage preserves a State’s sovereign interest in deciding for itself how to define the marital relationship. It also discourages evasion of the State’s marriage laws by allowing individuals to go to another State, marry there, then return home. Were it irrational for a State to adhere to its own policy, what would be the point of the Supreme Court’s repeated holdings that the Full Faith and Credit Clause “does not require a State to apply another State’s law in violation of its own public policy”? Id.
Far from undermining these points, Windsor reinforces them. The case observes that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities.” 133 S. Ct. at 2691 (internal quotation marks omitted). How could it be irrational for a State to decide that the foundation of its domesticrelations law will be its definition of marriage, not somebody else’s? Windsor adds that “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.” Id. How could it be irrational for a State to apply its definition of marriage to a couple in whose marital status the State as a sovereign has a rightful and legitimate concern?
Nor does the policy of nonrecognition trigger Windsor’s (or Romer’s) principle that unprecedented exercises of power call for judicial skepticism. States have always decided for themselves when to yield to laws of other States. Exercising this power, States often have refused to enforce all sorts of out-of-state rules on the grounds that they contradict important local policies. See Restatement (First) of Conflict of Laws § 612; Restatement (Second) of Conflict of Laws § 90. Even more telling, States in many instances have refused to recognize marriages performed in other States on the grounds that these marriages depart from cardinal principles of the State’s domestic-relations laws. See Restatement (First) of Conflict of Laws

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§ 134; Restatement (Second) of Conflict of Laws § 283. The laws challenged here involve routine rather than anomalous uses of state power.
What of the reality that Ohio recognizes some heterosexual marriages solemnized in other States even if those marriages could not be performed in Ohio? See, e.g. , Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). The only reason Ohio could have for banning recognition of same-sex marriages performed elsewhere and not prohibiting heterosexual marriages performed elsewhere, the Ohio plaintiffs claim, is animus or “discrimination[] of an unusual character.” Obergefell Appellees’ Br. at 18 (quoting Windsor, 133 S. Ct. at 2692).
But, in making this argument, the plaintiffs misapprehend Ohio law, wrongly assuming that Ohio would recognize as valid any heterosexual marriage that was valid in the State that sanctioned it. That is not the case. Ohio law recognizes some out-of-state marriages that could not be performed in Ohio, but not all such marriages. See, e.g., Mazzolini, 155 N.E.2d at 208 (marriage of first cousins); Hardin v. Davis , 16 Ohio Supp. 19, 20 (Ohio Ct. Com. Pl. 1945) (marriage by proxy). In Mazzolini, the most relevant precedent, the Ohio Supreme Court stated that a number of heterosexual marriages—ones that were “incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited”—would not be recognized in the State, even if they were valid in the jurisdiction that performed them. 155 N.E.2d at 208–09 (noting that first-cousin marriages fell outside this rule because they were “not made void by explicit provision” and “not incestuous”). Ohio law declares same-sex marriage contrary to the State’s public policy, placing those marriages within the longstanding exception to Ohio’s recognition rule. See Ohio Rev. Code § 3101.01(C).
IV.
That leaves one more claim, premised on the constitutional right to travel. In the Tennessee case (Tanco) and one of the Ohio cases (Henry), the claimants maintain that a State’s refusal to recognize out-of-state same-sex marriages illegitimately burdens the right to travel—in the one case by penalizing couples who move into the State by refusing to recognize their marriages, in the other by preventing their child from obtaining a passport because the State refused to provide a birth certificate that included the names of both parents.

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The United States Constitution does not mention a right to travel by name. “Yet the constitutional right to travel from one State to another is firmly embedded in our jurisprudence.” Saenz v. Roe , 526 U.S. 489, 498 (1999) (internal quotation marks omitted). It provides three guarantees: (1) “the right of a citizen of one State to enter and to leave another State”; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien” when visiting a second State; and (3) the right of new permanent residents “to be treated like other citizens of that State.” Id. at 500.
Tennessee’s nonrecognition law does not violate these prohibitions. It does not ban, or for that matter regulate, movement into or out of the State other than in the respect all regulations create incentives or disincentives to live in one place or another. Most critically, the law does not punish out-of-state new residents in relation to its own born and bred. Nonresidents are “treated” just “like other citizens of that State,” id., because the State has not expanded the definition of marriage to include gay couples in all settings, whether the individuals just arrived in Tennessee or descend from Andrew Jackson.
The same is true for the Ohio law. No regulation of movement or differential treatment between the newly resident and the longstanding resident occurs. All Ohioans must follow the State’s definition of marriage. With respect to the need to obtain an Ohio birth certificate before obtaining a passport, they can get one. The certificate just will not include both names of the couple. The “just” of course goes to the heart of the matter. In that respect, however, it is due process and equal protection, not the right to travel, that govern the issue.
* * *
This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.
If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people—

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will meet today’s challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
For these reasons, we reverse.

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_________________

DISSENT _________________

MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting.

“The great tides and currents which engulf the rest of men do not turn aside in their course to pass the judges by.” Benjamin Cardozo, The Nature of the Judicial Process (1921)
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.
In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully

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legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry.1
Readers who are familiar with the Supreme Court’s recent opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), and its progeny in the circuit courts, particularly the Seventh Circuit’s opinion in Baskin v. Bogan , 766 F.3d 648, 654 (7th Cir. 2014) (“Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, . . . they are about the welfare of American children.”), must have said to themselves at various points in the majority opinion, “But what about the children?” I did, and I could not find the answer in the opinion. For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit “within which children may flourish,” they ignore the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.
Indeed, with the exception of Ohio, the defendants in each of these cases—the proponents of their respective “defense of marriage” amendments—spent virtually their entire oral arguments professing what has come to be known as the “irresponsible procreation” theory: that limiting marriage and its benefits to opposite-sex couples is rational, even necessary, to provide for “unintended offspring” by channeling their biological procreators into the bonds of matrimony. When we asked counsel why that goal required the simultaneous exclusion of samesex couples from marrying, we were told that permitting same-sex marriage might denigrate the institution of marriage in the eyes of opposite-sex couples who conceive out of wedlock, causing subsequent abandonment of the unintended offspring by one or both biological parents. We also were informed that because same-sex couples cannot themselves produce wanted or unwanted offspring, and because they must therefore look to non-biological means of parenting that require planning and expense, stability in a family unit headed by same-sex parents is assured without the benefit of formal matrimony. But, as the court in Baskin pointed out, many “abandoned children [born out of wedlock to biological parents] are adopted by homosexual couples, and

1See, e.g., Loving v. Virg inia, 388 U.S. 1, 12 (1967) (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). The Supreme Court has described the right to marry as “of fundamental importance for all individuals” and as “part of the fundamental ‘right of privacy’ implicit in the Fourteenth Amendment's Due Process Clause.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978).

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those children would be better off both emotionally and economically if their adoptive parents were married.” Id. How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry. As an obviously exasperated Judge Posner responded after puzzling over this same paradox in Baskin, “Go figure.” Id. at 662.
In addressing the “irresponsible procreation” argument that has been referenced by virtually every state defendant in litigation similar to this case, the Baskin court noted that estimates put the number of American children being raised by same-sex parents at over 200,000. Id. at 663. “Unintentional offspring are the children most likely to be put up for adoption,” id. at 662, and because statistics show that same-sex couples are many times more likely to adopt than opposite-sex couples, “same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters.” Id. at 663. Moreover, “[i]f marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents.” Id. at 664.
The concern for the welfare of children that echoes throughout the Baskin opinion can be traced in part to the earlier opinion in Windsor, in which the Supreme Court struck down, as unconstitutional on equal-protection grounds, section 3 of the federal Defense of Marriage Act (DOMA), which defined the term “marriage” for federal purposes as “mean[ing] only a legal union between one man and one woman as husband and wife,” and the term “spouse” as “refer[ring] only to a person of the opposite sex who is a husband or a wife.” Id. at 2683 (citing 1 U.S.C. § 7). Although DOMA did not affect the prerogative of the states to regulate marriage within their respective jurisdictions, it did deprive same-sex couples whose marriages were considered valid under state law of myriad federal benefits. As Justice Kennedy, writing for the majority, pointed out:
DOMA’s 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 governmental efficiency . . . . The differentiation demeans the [samesex] couple, whose moral and sexual choices the Constitution protects, see

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Lawrence [v. Texas], 539 U.S. 558 [(2003)], 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.
Looking more closely at the situation of just one of the same-sex couples from the six cases before us brings Justice Kennedy’s words on paper to life. Two of the Michigan plaintiffs, April DeBoer and Jayne Rowse, are unmarried, same-sex partners who have lived as a couple for eight years in a home they own together. They are both trained and employed as nurses, DeBoer in a hospital neonatal department and Rowse in an emergency department at another hospital. Together they are rearing three children but, due to existing provisions in Michigan’s adoption laws, DeBoer and Rowse are prohibited from adopting the children as joint parents because they are unmarried. Instead, Rowse alone adopted two children, who are identified in the record as N and J. DeBoer adopted the third child, who is identified as R.
All three children had difficult starts in life, and two of them are now characterized as “special needs” children. N was born on January 25, 2009, to a biological mother who was homeless, had psychological impairments, was unable to care for N, and subsequently surrendered her legal rights to N. The plaintiffs volunteered to care for the boy and brought him into their home following his birth. In November 2009, Rowse completed the necessary steps to adopt N legally.
Rowse also legally adopted J after the boy’s foster care agency asked Rowse and DeBoer initially to serve as foster parents and legal guardians for him, despite the uphill climb the baby faced. According to the plaintiffs’ amended complaint:
J was born on November 9, 2009, at Hutzel Hospital, premature at 25 weeks, to a drug addicted prostitute. Upon birth, he weighed 1 pound, 9 ounces and tested positive for marijuana, cocaine, opiates and methadone. His birth mother abandoned him immediately after delivery. J remained in the hospital in the NICU for four months with myriad different health complications, and was not expected to live. If he survived, he was not expected to be able to walk, speak or function on a normal level in any capacity. . . . With Rowse and DeBoer’s constant care and medical attention, many of J’s physical conditions have resolved.

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The third adopted child, R, was born on February 1, 2010, to a 19-year-old girl who received no prenatal care and who gave birth at her mother’s home before bringing the infant to the hospital where plaintiff DeBoer worked. R continues to experience issues related to her lack of prenatal care, including delayed gross motor skills. She is in a physical-therapy program to address these problems.
Both DeBoer and Rowse share in the responsibilities of raising the two four-year-olds and the five-year-old. The plaintiffs even have gone so far as to “coordinate their work schedules so that at least one parent is generally home with the children” to attend to their medical needs and perform other parental duties. Given the close-knit, loving environment shared by the plaintiffs and the children, DeBoer wishes to adopt N and J legally as a second parent, and Rowse wishes to adopt R legally as her second parent.
Although Michigan statutes allow married couples and single persons to adopt, those laws preclude unmarried couples from adopting each other’s children. As a result, DeBoer and Rowse filed suit in federal district court challenging the Michigan adoption statute, Michigan Compiled Laws § 710.24, on federal equal-protection grounds. They later amended their complaint to include a challenge to the so-called Michigan Marriage Amendment, see Mich. Const. art. I, § 25, added to the Michigan state constitution in 2004, after the district court suggested that the plaintiffs’ “injury was not traceable to the defendants’ enforcement of section [710.24]” but, rather, flowed from the fact that the plaintiffs “were not married, and any legal form of same-sex union is prohibited” in Michigan. The case went to trial on the narrow legal issue of whether the amendment could survive rational basis review, i.e., whether it proscribes conduct in a manner that is rationally related to any conceivable legitimate governmental purpose.
The bench trial lasted for eight days and consisted of testimony from sociologists, economists, law professors, a psychologist, a historian, a demographer, and a county clerk. Included in the plaintiffs’ presentation of evidence were statistics regarding the number of children in foster care or awaiting adoption, as well as testimony regarding the difficulties facing same-sex partners attempting to retain parental influence over children adopted in Michigan. Gary Gates, a demographer, and Vivek Sankaran, the director of both the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School,

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together offered testimony painting a grim picture of the plight of foster children and orphans in the state of Michigan. For example, Sankaran noted that just under 14,000 foster children reside in Michigan, with approximately 3,500 of those being legal orphans. Nevertheless, same-sex couples in the state are not permitted to adopt such children as a couple. Even though one person can legally adopt a child, should anything happen to that adoptive parent, there is no provision in Michigan’s legal framework that would “ensure that the children would necessarily remain with the surviving non-legal parent,” even if that parent went through the arduous, time-consuming, expensive adoption-approval process. Thus, although the State of Michigan would save money by moving children from foster care or state care into adoptive families, and although same-sex couples in Michigan are almost three times more likely than opposite-sex couples to be raising an adopted child and twice as likely to be fostering a child, there remains a legal disincentive for same-sex couples to adopt children there.
David Brodzinsky, a developmental and clinical psychologist, for many years on the faculty at Rutgers University, reiterated the testimony that Michigan’s ban on adoptions by same-sex couples increases the potential risks to children awaiting adoptions. The remainder of his testimony was devoted to a systematic, statistic-based debunking of studies intimating that children raised in gay or lesbian families, ipso facto, are less well-adjusted than children raised by heterosexual couples. Brodzinsky conceded that marriage brings societal legitimatization and stability to children but noted that he found no statistically significant differences in general characteristics or in development between children raised in same-sex households and children raised in opposite-sex households, and that the psychological well-being, educational development, and peer relationships were the same in children raised in gay, lesbian, or heterosexual homes.
Such findings led Brodzinsky to conclude that the gender of a parent is far less important than the quality of the parenting offered and that family processes and resources are far better predictors of child adjustment than the family structure. He testified that those studies presuming to show that children raised in gay and lesbian families exhibited more adjustment problems and decreased educational achievement were seriously flawed, simply because they relied on statistics concerning children who had come from families experiencing a prior traumatic breakup of a failed heterosexual relationship. In fact, when focusing upon children of

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lesbian families created through donor insemination, Brodzinsky found no differences in comparison with children from donor insemination in heterosexual families or in comparison with children conceived naturally in heterosexual families. According to Brodzinsky, such a finding was not surprising given the fact that all such children experienced no family disruption in their past. For the same reason, few differences were noted in studies of children adopted at a very early age by same-sex couples and children naturally born into heterosexual families.
Nancy Cott, a professor of history at Harvard University, the director of graduate studies there, and the author of Public Vows: A History of Marriage and the Nation, also testified on behalf of the plaintiffs. She explained how the concept of marriage and the roles of the marriage partners have changed over time. As summarized by Cott, the wife’s identity is no longer subsumed into that of her husband, interracial marriages are legal now that the antiquated, racist concept of preserving the purity of the white race has fallen into its rightful place of dishonor, and traditional gender-assigned roles are no longer standard. Cott also testified that solemnizing marriages between same-sex partners would create tangible benefits for Michigan citizens because spouses would then be allowed to inherit without taxation and would be able to receive retirement, Social Security, and veteran’s benefits upon the death of an eligible spouse. Moreover, statistics make clear that heterosexual marriages have not suffered or decreased in number as a result of states permitting same-sex marriages. In fact, to the contrary, Cott noted that there exists some evidence that many young people now refuse to enter into heterosexual marriages until their gay or lesbian friends can also enjoy the legitimacy of state-backed marriages.
Michael Rosenfeld, a Stanford University sociologist, testified about studies he had undertaken that confirmed the hypothesis that legitimation of same-sex relationships promotes their stability. Specifically, Rosenfeld’s research established that although same-sex couples living in states without recognition of their commitments to each other did have a higher breakup rate than heterosexual married couples, the break-up rates of opposite-sex married couples and same-sex couples in recognized civil unions were virtually identical. Similarly, the break-up rates of same-sex couples not living in a state-recognized relationship approximated the break-up rate of heterosexual couples cohabiting without marriage.

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Rosenfeld also criticized the methodology of studies advanced by the defendants that disagreed with his conclusions. According to Rosenfeld, those critical studies failed to take into account the stability or lack of stability of the various groups examined. For example, he testified that one such study compared children who had experienced no adverse family transitions with children who had lived through many such traumatic family changes. Not surprisingly, children from broken homes with lower-income-earning parents who had less education and lived in urban areas performed more poorly in school than other children. According to Rosenfeld, arguments to the contrary that failed to control for such differences, taken to their extreme, would lead to the conclusion that only high-income individuals of Asian descent who earned advanced degrees and lived in suburban areas should be allowed to marry.
To counteract the testimony offered by the plaintiffs’ witnesses, the defendants presented as witnesses the authors or co-authors of three studies that disagreed with the conclusions reached by the plaintiffs’ experts. All three studies, however, were given little credence by the district court because of inherent flaws in the methods used or the intent of the authors. For example, the New Family Structures Study reported by Mark Regnerus, a sociologist at the University of Texas at Austin, admittedly relied upon interviews of children from gay or lesbian families who were products of broken heterosexual unions in order to support a conclusion that living with such gay or lesbian families adversely affected the development of the children. Regnerus conceded, moreover, that his own department took the highly unusual step of issuing the following statement on the university website in response to the release of the study:
[Dr. Regnerus’s opinions] do not reflect the views of the sociology department of the University of Texas at Austin. Nor do they reflect the views of the American Sociological Association which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that the findings from Dr. Regnerus’[s] work have been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families.
In fact, the record before the district court reflected clearly that Regnerus’s study had been funded by the Witherspoon Institute, a conservative “think tank” opposed to same-sex marriage, in order to vindicate “the traditional understanding of marriage.”
Douglas Allen, the co-author of another study with Catherine Pakaluk and Joe Price, testified that children raised by same-sex couples graduated from high school at a significantly

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lower rate than did children raised by heterosexual married couples. On cross-examination, however, Allen conceded that “many of those children who . . . were living in same-sex households had previously lived in an opposite sex household where their parents had divorced, broken up, some kind of separation or transition.” Furthermore, Allen provided evidence of the bias inherent in his study by admitting that he believed that engaging in homosexual acts “means eternal separation from God, in other words[,] going to hell.”
The final study advanced by the defendants was conducted by Loren Marks, a professor in human ecology at Louisiana State University, in what was admittedly an effort to counteract the “groupthink” portrayed by perceived “liberal psychologists.” But although Marks criticized what he perceived to be “a pronounced liberal lean on social issues” by many psychologists, he revealed his own bias by acknowledging that he was a lay clergyman in the Church of Jesus Christ of Latter Day Saints (LDS) and that the LDS directive “for a couple to be married by God’s authority in God’s house, the holy temple, and then to have children per the teaching that God’s commandment for his children to multiply and replenish the earth remains in force.”
Presented with the admitted biases and methodological shortcomings prevalent in the studies performed by the defendant’s experts, the district court found those witnesses “largely unbelievable” and not credible. DeBoer v. Snyder, 973 F. Supp.2d 757, 768 (E.D. Mich. 2014). Proceeding to a legal analysis of the core issue in the litigation, the district court then concluded that the proscriptions of the marriage amendment are not rationally related to any legitimate state interest. Addressing the defendants’ three asserted rational bases for the amendment,2 the district court found each such proffered justification without merit.
Principally, the court determined that the amendment is in no way related to the asserted state interest in ensuring an optimal environment for child-rearing. The testimony adduced at trial clearly refuted the proposition that, all things being equal, same-sex couples are less able to provide for the welfare and development of children. Indeed, marriage, whether between samesex or opposite-sex partners, increases stability within the family unit. By permitting same-sex

2In the district court, the state did not advance an “unintended pregnancy” argument, nor was that claim included in the state’s brief on appeal, although counsel did mention it during oral argument. In terms of “optimal environment,” the state emphasized the need for children to have “both a mom and a dad,” because “men and women are different,” and to have a “biological connection to their parents.”

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couples to marry, that stability would not be threatened by the death of one of the parents. Even more damning to the defendants’ position, however, is the fact that the State of Michigan allows heterosexual couples to marry even if the couple does not wish to have children, even if the couple does not have sufficient resources or education to care for children, even if the parents are pedophiles or child abusers, and even if the parents are drug addicts.
Furthermore, the district court found no reason to believe that the amendment furthers the asserted state interests in “proceeding with caution” before “altering the traditional definition of marriage” or in “upholding tradition and morality.” As recognized by the district court, there is no legitimate justification for delay when constitutional rights are at issue, and even adherence to religious views or tradition cannot serve to strip citizens of their right to the guarantee of equal protection under the law.
Finally, and relatedly, the district court acknowledged that the regulation of marriage traditionally has been seen as part of a state’s police power but concluded that this fact cannot serve as an excuse to ignore the constitutional rights of individual citizens. Were it otherwise, the court observed, the prohibition in Virginia and in many other states against miscegenation still would be in effect today. Because the district court found that “regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail,” the court held the amendment and its implementing statutes “unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Id. at 775.
If I were in the majority here, I would have no difficulty in affirming the district court's opinion in DeBoer. The record is rich with evidence that, as a pragmatic matter, completely refutes the state’s effort to defend the ban against same-sex marriage that is inherent in the marriage amendment. Moreover, the district court did a masterful job of supporting its legal conclusions. Upholding the decision would also control the resolution of the other five cases that were consolidated for purposes of this appeal.
Is a thorough explication of the legal basis for such a result appropriate? It is, of course. Is it necessary? In my judgment, it is not, given the excellent—even eloquent—opinion in DeBoer and in the opinions that have come from four other circuits in the last few months that

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have addressed the same issues involved here: Kitchen v. Herbert , 755 F.3d 1193 (10th Cir. 2014) (holding Utah statutes and state constitutional amendment banning same-sex marriage unconstitutional under the Fourteenth Amendment); Bostic v. Schaefer , 760 F.3d 352 (4th Cir. 2014) (same, Virginia); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (same, Indiana statute and Wisconsin state constitutional amendment); and Latta v. Otter , Nos. 14-35420, 14-35421, 1217668, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) (same, Idaho and Nevada statutes and state constitutional amendments).3
Kitchen was decided primarily on the basis of substantive due process, based on the Tenth Circuit’s determination that under Supreme Court precedents, the right to marry includes the right to marry the person of one’s choice. The court located the source of that right in Supreme Court opinions such as Maynard v. Hill , 125 U.S. 190, 205 (1888) (recognizing marriage as “the most important relation in life”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (holding that the liberty protected by the Fourteenth Amendment includes the freedom “to marry, establish a home and bring up children”); 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.”); Zablocki, 434 U.S. at 384 (recognizing that “the right to marry is of fundamental importance for all individuals”); and Turner v. Safley, 482 U.S. 78, 95-96 (1987) (in the context of a prison inmate’s right to marry, “[such] marriages are expressions of emotional support and public commitment[,] . . . elements [that] are important and significant aspects of the marital relationship” even in situations in which procreation is not possible). Kitchen, 755 F.3d at 1209-11. The Tenth Circuit also found that the Utah laws violated equal protection, applying strict scrutiny because the classification in question impinged on a fundamental right. In doing so, the court rejected the state’s reliance on various justifications offered to establish a compelling state interest in denying marriage to same-sex couples, finding “an insufficient causal connection” between the prohibition on same-sex marriage and the state’s “articulated goals,” which included a purported interest in fostering biological reproduction, encouraging optimal childrearing, and maintaining gendered parenting styles. Id. at 1222. The court also

3On October 6, the Supreme Court denied certiorari and lifted stays in Kitchen, Bostic, and Baskin, putting into effect the district court injunctions entered in each of those three cases. A stay of the mandate in the Idaho case in Latta also has been vacated, and the appeal in the Nevada case is not being pursued. As a result, marriage licenses are currently being issued to same-sex couples throughout most—if not all—of the Fourth, Seventh, Ninth, and Tenth Circuits.

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rejected the state’s prediction that legalizing same-sex marriage would result in social discord, citing Watson v. City of Memphis , 373 U.S. 526, 535 (1963) (rejecting “community confusion and turmoil” as a reason to delay desegregation of public parks). Id. at 1227.
The Fourth Circuit in Bostic also applied strict scrutiny to strike down Virginia’s samesex-marriage prohibitions as infringing on a fundamental right, citing Loving and observing that “[o]ver the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.” 760 F.3d at 376. In a thoughtful opinion, the court analyzed each of the state’s proffered interests: maintaining control of the “definition of marriage,” adhering to the “tradition of opposite-sex marriage,” “protecting the institution of marriage,” “encouraging responsible procreation,” and “promoting the optimal childrearing environment.” Id. at 378. In each instance, the court found that there was no link between the state’s purported “compelling interest” and the exclusion of same-sex couples “from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.” Id. at 384. As to the state’s interest in federalism, the court pointed to the long-recognized principle that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons,” id. at 379 (quoting Windsor, 133 S. Ct. at 2691), and highlighted Windsor’s reiteration of “Loving’s admonition that the states must exercise their authority without trampling constitutional guarantees.” Id. Addressing the state’s contention that marriage under state law should be confined to opposite-sex couples because unintended pregnancies cannot result from same-sex unions, the court noted that “[b]ecause same-sex couples and infertile opposite-sex couples are similarly situated, the Equal Protection Clause counsels against treating these groups differently.” Id. at 381-82 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).
The Seventh Circuit’s Baskin opinion is firmly grounded in equal-protection analysis. The court proceeded from the premise that “[d]iscrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.” 766 F.3d at 654. But the court also found that “discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is

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not subjected to heightened scrutiny.” Id. at 656. This conclusion was based on the court’s rejection of “the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended,” an argument “so full of holes that it cannot be taken seriously.” Id. (emphasis in original). The court therefore found it unnecessary to engage in “the more complex analysis found in more closely balanced equal-protection cases” or under the due process clause of the Fourteenth Amendment.” Id. at 656-57.
The Ninth Circuit’s opinion in Latta also focuses on equal-protection principles in finding that Idaho’s and Nevada’s statutes and constitutional amendments prohibiting same-sex marriage violate the Fourteenth Amendment. Because the Ninth Circuit had recently held in SmithKline Beecham Corp. v. Abbott Labs. , 740 F.3d 471, 481 (9th Cir. 2014), that classifications based on sexual orientation are subject to heightened scrutiny, a conclusion the court drew from its reading of Windsor to require assessment more rigorous than rational-basis review, the path to finding an equal-protection violation was less than arduous. As did the Tenth Circuit in Kitchen, the court in Latta found it “wholly illogical” to think that same-sex marriage would affect opposite-sex couples’ choices with regard to procreation. Latta, 2014 WL 4977682, *5 (citing Kitchen, 755 F.3d at 1223).
These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us. Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of samesex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. Perhaps that is the case, but it does not relieve the dissenting member of the panel from the obligation of a rejoinder.

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Baker v. Nelson
If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v. Nelson, 409 U.S. 810 (1972), is a prime candidate. It lacks only a stake through its heart. Nevertheless, the majority posits that we are bound by the Court’s aging one-line order denying review of an appeal from the Minnesota Supreme Court “for want of a substantial federal question.” As the majority notes, the question concerned the state’s refusal to issue a marriage license to a same-sex couple, but the decision came at a point in time when sodomy was legal in only one state in the country, Illinois, which had repealed its anti-sodomy statute in 1962. The Minnesota statute criminalizing same-sex intimate relations was not struck down until 2001, almost 30 years after Baker was announced.4 The Minnesota Supreme Court’s denial of relief to a same-sex couple in 1971 and the United States Supreme Court’s conclusion that there was no substantial federal question involved in the appeal thus is unsurprising. As the majority notes— not facetiously, one hopes—“that was then; this is now.”
At the same time, the majority argues that we are bound by the eleven words in the order, despite the Supreme Court silence on the matter in the 42 years since it was issued. There was no recognition of Baker in Romer v. Evans , 517 U.S. 620 (1996), nor in Lawrence v. Texas , 539 U.S. 558 (2003), and not in Windsor, despite the fact that the dissenting judge in the Second Circuit’s opinion in Windsor made the same argument that the majority makes in this case. See Windsor v. United States, 699 F.3d 169, 189, 192-95 (2d Cir. 2012) (Straub, J., dissenting in part and concurring in part). And although the argument was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor,5 neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker. In addition, the order was not cited in the three orders of October 6, 2014, denying certiorari in Kitchen, Bostic, and Baskin. If this string of cases—Romer, Lawrence, Windsor, Kitchen, Bostic, and Baskin—does not represent the Court’s overruling of Baker sub silentio, it certainly creates the “doctrinal development” that frees the lower courts from the strictures of a summary

4See Doe v. Ventura, No. 01-489, 2001 WL 543734 (D. Ct. of Hennepin Cnty. May 15, 2001) (unreported). 5See United States v. Windsor, Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives, No. 12-307, 2013 WL 267026 at 16-19, 25-26 (Jan. 22, 2013).

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disposition by the Supreme Court. See Hicks v. Miranda , 422 U.S. 332, 344 (1975) (internal quotation marks and citation omitted).

Definition of Marriage
The majority’s “original meaning” analysis strings together a number of case citations but can tell us little about the Fourteenth Amendment, except to assure us that “the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage.” The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws across the country, beginning in California in 1948 and culminating in the Loving decision in 1967. Despite a civil war, the end of slavery, and ratification of the Fourteenth Amendment in 1868, extensive litigation has been necessary to achieve even a modicum of constitutional protection from discrimination based on race, and it has occurred primarily by judicial decree, not by the democratic election process to which the majority suggests we should defer regarding discrimination based on sexual orientation.
Moreover, the majority’s view of marriage as “a social institution defined by relationships between men and women” is wisely described in the plural. There is not now and never has been a universally accepted definition of marriage. In early Judeo-Christian law and throughout the West in the Middle Ages, marriage was a religious obligation, not a civil status. Historically, it has been pursued primarily as a political or economic arrangement. Even today, polygynous marriages outnumber monogamous ones—the practice is widespread in Africa, Asia, and the Middle East, especially in countries following Islamic law, which also recognizes temporary marriages in some parts of the world. In Asia and the Middle East, many marriages are still arranged and some are even coerced.
Although some of the older statutes regarding marriage cited by the majority do speak of the union of “a man and a woman,” the picture hardly ends there. When Justice Alito noted in Windsor that the opponents of DOMA were “implicitly ask[ing] us to endorse [a more expansive definition of marriage and] to reject the traditional view,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting), he may have been unfamiliar with all that the “traditional view” entailed, especially for women who were subjected to coverture as a result of Anglo-American common law.

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Fourteenth Amendment cases decided by the Supreme Court in the years since 1971 that
“invalidat[ed] various laws and policies that categorized by sex have been part of a
transformation that has altered the very institution at the heart of this case, marriage.” Latta,
2014 WL 4977682, at *20 (Berzon, J., concurring).
Historically, marriage was a profoundly unequal institution, one that imposed distinctly different rights and obligations on men and women. The law of coverture, for example, deemed the “the husband and wife . . . one person,” such that “the very being or legal existence of the woman [was] suspended . . . or at least [was] incorporated and consolidated into that of the husband” during the marriage. 1 William Blackstone, Commentaries on the Laws of England 441 (3d rev. ed. 1884). Under the principles of coverture, “a married woman [was] incapable, without her husband’s consent, of making contracts . . . binding on her or him.” Bradwell v. Illinois , 83 U.S. 130, 141 (1872) (Bradley, J., concurring). She could not sue or be sued without her husband’s consent. See, e.g., Nancy F. Cott, Public Vows: A History of Marriage and the Nation 11–12 (2000). Married women also could not serve as the legal guardians of their children. Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (plurality op.).
Marriage laws further dictated economically disparate roles for husband and wife. In many respects, the marital contract was primarily understood as an economic arrangement between spouses, whether or not the couple had or would have children. “Coverture expressed the legal essence of marriage as reciprocal: a husband was bound to support his wife, and in exchange she gave over her property and labor.” Cott, Public Vows, at 54. That is why “married women traditionally were denied the legal capacity to hold or convey property . . . .” Frontiero, 411 U.S. at 685. Notably, husbands owed their wives support even if there were no children of the marriage. See, e.g., Hendrik Hartog, Man and Wife in America: A History 156 (2000).
There was also a significant disparity between the rights of husbands and wives with regard to physical intimacy. At common law, “a woman was the sexual property of her husband; that is, she had a duty to have intercourse with him.” John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 79 (3d ed. 2012). Quite literally, a wife was legally “the possession of her husband, . . . [her] husband’s property.” Hartog, Man and Wife in America, at 137. Accordingly, a husband could sue his wife’s lover in tort for “entic[ing]” her or “alienat[ing]” her affections and thereby interfering with his property rights in her body and her labor. Id. A husband’s possessory interest in his wife was undoubtedly also driven by the fact that, historically, marriage was the only legal site for licit sex; sex outside of marriage was almost universally criminalized. See, e.g., Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex , 115 Yale L.J. 756, 763–64 (2006).
Notably, although sex was strongly presumed to be an essential part of marriage, the ability to procreate was generally not. See, e.g. , Chester Vernier, American

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Family Laws: A Comparative Study of the Family Law of the Forty-Eight American States, Alaska, the District of Columbia, and Hawaii (to Jan. 1, 1931) (1931) I § 50, 239–46 (at time of survey, grounds for annulment typically included impotency, as well as incapacity due to minority or “non-age”; lack of understanding and insanity; force or duress; fraud; disease; and incest; but not inability to conceive); II § 68, at 38–39 (1932) (at time of survey, grounds for divorce included “impotence”; vast majority of states “generally held that impotence. . . does not mean sterility but must be of such a nature as to render complete sexual intercourse practically impossible”; and only Pennsylvania “ma[d]e sterility a cause” for divorce).
The common law also dictated that it was legally impossible for a man to rape his wife. Men could not be prosecuted for spousal rape. A husband’s “incapacity” to rape his wife was justified by the theory that “‘the marriage constitute[d] a blanket consent to sexual intimacy which the woman [could] revoke only by dissolving the marital relationship.’” See, e.g. , Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape , 88 Calif. L. Rev 1373, 1376 n.9 (2000) (quoting Model Penal Code and Commentaries, § 213.1 cmt. 8(c), at 342 (Official Draft and Revised Comments 1980)).
Concomitantly, dissolving the marital partnership via divorce was exceedingly difficult. Through the mid-twentieth century, divorce could be obtained only on a limited set of grounds, if at all. At the beginning of our nation’s history, several states did not permit full divorce except under the narrowest of circumstances; separation alone was the remedy, even if a woman could show “cruelty endangering life or limb.” Peter W. Bardaglio, Reconstructing the Household: Families, Sex, and th e Law in th e Nineteenth-Century South 33 (1995); see also id. 32–33. In part, this policy dovetailed with the grim fact that, at English common law, and in several states through the beginning of the nineteenth century, “a husband’s prerogative to chastise his wife”—that is, to beat her short of permanent injury—was recognized as his marital right. Reva B. Siegel, “The Rule of Love”: Wife Beati ng as Prerogative and Privacy , 105 Yale L.J. 2117, 2125 (1996).
Id. at *20-21.
Women were not the only class deprived of equal status in “traditional marriage.” Until
the end of the Civil War in 1865, slaves were prohibited from contracting legal marriages and
often resorted to “jumping the broomstick” to mark a monogamous conjugal relationship.
Informal “slave marriage” was the rule until the end of the war, when Freedmen’s Bureaus began
issuing marriage licenses to former slaves who could establish the existence of long-standing
family relationships, despite the fact that family members were sometimes at great distances
from one another. The ritual of jumping the broomstick, thought of in this country in terms of

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slave marriages, actually originated in England, where civil marriages were not available until enactment of the Marriage Act of 1837. Prior to that, the performance of valid marriages was the sole prerogative of the Church of England, unless the participants were Quakers or Jews. The majority’s admiration for “traditional marriage” thus seems misplaced, if not naïve. The legal status has been through so many reforms that the marriage of same-sex couples constitutes merely the latest wave in a vast sea of change.

Rational-Basis Review.
The principal thrust of the majority’s rational-basis analysis is basically a reiteration of the same tired argument that the proponents of same-sex-marriage bans have raised in litigation across the country: marriage is about the regulation of “procreative urges” of men and women who therefore do not need the “government’s encouragement to have sex” but, instead, need encouragement to “create and maintain stable relationships within which children may flourish.” The majority contends that exclusion of same-sex couples from marriage must be considered rational based on “the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended children.” As previously noted, however, this argument is one that an eminent jurist has described as being “so full of holes that it cannot be taken seriously.” Baskin, 766 F.3d at 656 (Posner, J.).
At least my colleagues are perceptive enough to acknowledge that “[g]ay couples, no less than straight couples, are capable of sharing such relationships . . . [and] are capable of raising stable families.” The majority is even persuaded that the “quality of [same-sex] relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment.” All of which, the majority surmises, “supports the policy argument made by many that marriage laws should be extended to gay couples.” But this conclusion begs the question: why reverse the judgments of four federal district courts, in four different states, and in six different cases that would do just that?
There are apparently two answers; first, “let the people decide” and, second, “give it time.” The majority posits that “just as [same-sex marriage has been adopted in] nineteen states and the District of Columbia,” the change-agents in the Sixth Circuit should be “elected

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legislators, not life-tenured judges.” Of course, this argument fails to acknowledge the impracticalities involved in amending, re-amending, or un-amending a state constitution.6 More to the point, under our constitutional system, the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite. As the Supreme Court has noted, “It is plain that the electorate as a whole, whether by referendum or otherwise, could not order [government] action violative of the Equal Protection Clause, and the [government] may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic.” City of Cleburne , 473 U.S. at 448 (internal citation omitted).
Moreover, as it turns out, legalization of same-sex marriage in the “nineteen states and the District of Columbia” mentioned by the majority was not uniformly the result of popular vote or legislative enactment. Nine states now permit same-sex marriage because of judicial decisions, both state and federal: Massachusetts, Connecticut, Iowa, New Mexico, and Colorado (state supreme court decisions); New Jersey (state superior court decision not appealed by defendant); California (federal district court decision allowed to stand in ruling by United States Supreme Court); and Oregon and Pennsylvania (federal district court decisions not appealed by defendants). Despite the majority’s insistence that, as life-tenured judges, we should step aside and let the voters determine the future of the state constitutional provisions at issue here, those nine federal and state courts have seen no acceptable reason to do so. In addition, another 16 states have been or soon will be added to the list, by virtue of the Supreme Court’s denial of certiorari review in Kitchen, Bostick, and Baskin, and the Court’s order dissolving the stay in Latta. The result has been the issuance of hundreds—perhaps thousands—of marriage licenses in the wake of those orders. Moreover, the 35 states that are now positioned to recognize samesex marriage are comparable to the 34 states that permitted interracial marriage when the

6In Tennessee, for example, a proposed amendment must first be approved by a simple majority of both
houses. In the succeeding legislative session, which can occur as long as a year or more later, the same proposed amendment must then be approved “by two-thirds of all the members elected to each house.” Tenn. Const. art. XI, § 3. The proposed amendment is then presented “to the people at the next general election in which a Governor is to be chosen,” id., which can occur as long as three years or more later. If a majority of all citizens voting in the gubernatorial election also approve of the proposed amendment, it is considered ratified. The procedure for amending the constitution by convention can take equally long and is, if anything, more complicated. In Michigan, a constitutional convention, one of three methods of amendment, can be called no more often than every 16 years. See Mich. Const. art. XII, § 3.

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Supreme Court decided Loving. If the majority in this case is waiting for a tipping point, it seems to have arrived.
The second contention is that we should “wait and see” what the fallout is in the states where same-sex marriage is now legal. The majority points primarily to Massachusetts, where same-sex couples have had the benefit of marriage for “only” ten years—not enough time, the majority insists, to know what the effect on society will be. But in the absence of hard evidence that the sky has actually fallen in, the “states as laboratories of democracy” metaphor and its pitch for restraint has little or no resonance in the fast-changing scene with regard to same-sex marriage. Yet, whenever the expansion of a constitutional right is proposed, “proceed with caution” seems to be the universal mantra of the opponents. The same argument was made by the State of Virginia in Loving. And, in Frontiero v. Richardson , 411 U.S. 677 (1973), the government asked the Court to postpone applying heightened scrutiny to allegations of gender discrimination in a statute denying equal benefits to women until the Equal Rights Amendment could be ratified. If the Court had listened to the argument, we would, of course, still be waiting. One is reminded of the admonition in Martin Luther King, Jr.’s “Letter from Birmingham Jail” (1963): “For years now I have heard the word "Wait”! . . . [But h]uman progress never rolls in on wheels of inevitability . . . [and] time itself becomes an ally of the forces of social stagnation.”

Animus
Finally, there is a need to address briefly the subject of unconstitutional animus, which the majority opinion equates only with actual malice and hostility on the part of members of the electorate. But in many instances involving rational-basis review, the Supreme Court has taken a more objective approach to the classification at issue, rather than a subjective one. Under such an analysis, it is not necessary for a court to divine individual malicious intent in order to find unconstitutional animus. Instead, the Supreme Court has instructed that an exclusionary law violates the Equal Protection Clause when it is based not upon relevant facts, but instead upon only a general, ephemeral distrust of, or discomfort with, a particular group, for example, when legislation is justified by the bare desire to exclude an unpopular group from a social institution or arrangement. In City of Cleburne , for example, the Court struck down a zoning regulation that was justified simply by the “negative attitude” of property owners in the community toward individuals with intellectual disabilities, not necessarily by actual malice toward an unpopular

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minority. In doing so, the Court held that “the City may not avoid the strictures of the [Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic,” 473 U.S. at 448, and cited Palmore v. Sidoti , 466 U.S. 429, 433 (1984), for the proposition that “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” In any event, as the majority here concedes, we as a country have such a long history of prejudice based on sexual orientation that it seems hypocritical to deny the existence of unconstitutional animus in the rational-basis analysis of the cases before us.
To my mind, the soundest description of this analysis is found in Justice Stevens’s separate opinion in City of Cleburne:
In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a “tradition of disfavor” by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment? In most cases the answer to these questions will tell us whether the statute has a “rational basis.”
Id. at 453 (Stevens, J., concurring) (footnotes omitted). I would apply just this analysis to the constitutional amendments and statutes at issue in these cases, confident that the result of the inquiry would be to affirm the district courts’ decisions in all six cases. I therefore dissent from the majority’s decision to overturn those judgments.
Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.
More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the

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authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

 
 (Slip Opinion)

OCTOBER TERM, 2014

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO 
 DEPARTMENT OF HEALTH, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 14–556. Argued April 28, 2015—Decided June 26, 2015*
Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed.
Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28. (a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before the Court. Pp. 3–10. (1) The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases. To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities, as illustrated by the pe-
—————— * Together with No. 14–562, Tanco et al. v. Haslam, Governor of Ten-
nessee, et al., No. 14–571, DeBoer et al. v. Snyder, Governor of Michigan, et al., and No. 14–574, Bourke et al. v. Beshear, Governor of Kentucky, also on certiorari to the same court.

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Syllabus
titioners’ own experiences. Pp. 3–6. (2) The history of marriage is one of both continuity and change.
Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.
This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making samesex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575. In 2012, the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U. S. ___. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue. Pp. 6– 10.
(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 10–27.
(1) The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, 388 U. S. 1, 12, invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78, 95, held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship in-

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3

Syllabus
volving opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. Pp. 10–12.
(2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

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Syllabus
Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. Pp. 12–18.
(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has invoked equal protection principles to invalidate laws imposing sexbased inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450 U. S. 455, 460–461, and confirmed the relation between liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120–121.
The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See Lawrence, 539 U. S., at 575. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 18–22.
(4) The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protec-

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5

Syllabus
tion Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Pp. 22–23.
(5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment. The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents’ argument that allowing samesex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Pp. 23–27.
(c) The Fourteenth Amendment requires States to recognize samesex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. Pp. 27–28.
772 F. 3d 388, reversed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.

Cite as: 576 U. S. ____ (2015)

1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE KENNEDY delivered the opinion of the Court.
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow

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Opinion of the Court
persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
I
These cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman. See, e.g., Mich. Const., Art. I, §25; Ky. Const. §233A; Ohio Rev. Code Ann. §3101.01 (Lexis 2008); Tenn. Const., Art. XI, §18. The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.
Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. Citations to those cases are in Appendix A, infra. The respondents appealed the decisions against them to the United States Court of Appeals for the Sixth Circuit. It consolidated the cases and reversed the judgments of the District Courts. DeBoer v. Snyder, 772 F. 3d 388 (2014). The Court of Appeals held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State.
The petitioners sought certiorari. This Court granted review, limited to two questions. 574 U. S. ___ (2015). The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio,

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3

Opinion of the Court
Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a samesex marriage licensed and performed in a State which does grant that right.
II
Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.
A
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures,

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and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.
That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.
The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
Recounting the circumstances of three of these cases illustrates the urgency of the petitioners’ cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from

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Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a stateimposed separation Obergefell deems “hurtful for the rest of time.” App. in No. 14–556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur’s death certificate.
April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.
Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two

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settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.
The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.
B
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.
For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000); S. Coontz, Marriage, A History 15–16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes.

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Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).
These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.
This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5–28.
For much of the 20th century, moreover, homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. See Position Statement on Homosexuality and Civil

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Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7–17.
In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.
This Court first gave detailed consideration to the legal status of homosexuals in Bowers v. Hardwick, 478 U. S. 186 (1986). There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans, 517 U. S. 620 (1996), the Court invalidated an amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575.
Against this background, the legal question of same-sex marriage arose. In 1993, the Hawaii Supreme Court held Hawaii’s law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its implications and reaffirmed in their laws that marriage is

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defined as a union between opposite-sex partners. So too in 1996, Congress passed the Defense of Marriage Act (DOMA), 110 Stat. 2419, defining marriage for all federallaw purposes as “only a legal union between one man and one woman as husband and wife.” 1 U. S. C. §7.
The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State’s Constitution guaranteed same-sex couples the right to marry. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003). After that ruling, some additional States granted marriage rights to samesex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B, infra. Two Terms ago, in United States v. Windsor, 570 U. S. ___ (2013), this Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples “who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” Id., at ___ (slip op., at 14).
Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider. With the exception of the opinion here under review and one other, see Citizens for Equal Protection v. Bruning, 455 F. 3d 859, 864–868 (CA8 2006), the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution. There also have been many

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thoughtful District Court decisions addressing same-sex marriage—and most of them, too, have concluded samesex couples must be allowed to marry. In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions. These state and federal judicial opinions are cited in Appendix A, infra.
After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage. See Office of the Atty. Gen. of Maryland, The State of Marriage Equality in America, State-by-State Supp. (2015).
III
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Griswold v. Connecticut, 381 U. S. 479, 484–486 (1965).
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradi-

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tion guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 116 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U. S. 632, 639–640 (1974); Griswold, supra, at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942); Meyer v. Nebraska, 262 U. S. 390, 399 (1923).
It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions,

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has made assumptions defined by the world and time of which it is a part. This was evident in Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.
Still, there are other, more instructive precedents. This Court’s cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g., Lawrence, 539 U. S., at 574; Turner, supra, at 95; Zablocki, supra, at 384; Loving, supra, at 12; Griswold, supra, at 486. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454; Poe, supra, at 542–553 (Harlan, J., dissenting).
This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. Indeed, the Court has noted it would

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be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386.
Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___– ___ (slip op., at 22–23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”).
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. 381 U. S., at 485. Suggesting that marriage is a right “older than the Bill of Rights,” Griswold described marriage this way:
“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

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projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. ” Id., at 486.
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U. S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made samesex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer, 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: “[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.” Zablocki, 434 U. S., at 384

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(quoting Meyer, supra, at 399). Under the laws of the several States, some of marriage’s protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows 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, supra, at ___ (slip op., at 23). Marriage also affords the permanency and stability important to children’s best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22–27.
As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents, see id., at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___ (slip op., at 23).
That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of

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precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago:
“There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs.” 1 Democracy in America 309 (H. Reeve transl., rev. ed. 1990).
In Maynard v. Hill, 125 U. S. 190, 211 (1888), the Court echoed de Tocqueville, explaining that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been “ ‘a great public institution, giving character to our whole civil polity.’ ” Id., at 213. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community.
For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the

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basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6–9; Brief for American Bar Association as Amicus Curiae 8–29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor, 570 U. S., at ___ – ___ (slip op., at 15–16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come

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the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.
Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which called for a “ ‘careful description’ ” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg, 521 U. S., at 752–773 (Souter, J., concurring in judgment); id., at 789–792 (BREYER, J., concurring in judgments).
That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566–567.
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources

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alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. See M. L. B., 519 U. S., at 120– 121; id., at 128–129 (KENNEDY, J., concurring in judgment); Bearden v. Georgia, 461 U. S. 660, 665 (1983). This interrelation of the two principles furthers our understanding of what freedom is and must become.
The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court

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first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” 388 U. S., at 12. With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: “To deny this fundamental freedom on so unsupportable a basis as the racial 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.” Ibid. The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.
The synergy between the two protections is illustrated further in Zablocki. There the Court invoked the Equal Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marrying without judicial approval. The equal protection analysis depended in central part on the Court’s holding that the law burdened a right “of fundamental importance.” 434 U. S., at 383. It was the essential nature of the marriage right, discussed at length in Zablocki, see id., at 383–387, that made apparent the law’s incompatibility with requirements of equality. Each concept—liberty and equal protection—leads to a stronger understanding of the other.
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of cover-

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ture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 (1980); Califano v. Westcott, 443 U. S. 76 (1979); Orr v. Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.
Other cases confirm this relation between liberty and equality. In M. L. B. v. S. L. J., the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to appeal the termination of their parental rights. See 519 U. S., at 119–124. In Eisenstadt v. Baird, the Court invoked both principles to invalidate a prohibition on the distribution of contraceptives to unmarried persons but not married persons. See 405 U. S., at 446–454. And in Skinner v. Oklahoma ex rel. Williamson, the Court invalidated under both principles a law that allowed steriliza-

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tion of habitual criminals. See 316 U. S., at 538–543. In Lawrence the Court acknowledged the interlocking
nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State “cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Id., at 578.
This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383–388; Skinner, 316 U. S., at 541.
These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No

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Opinion of the Court
longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as oppositesex couples.
IV
There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages. See DeBoer, 772 F. 3d, at 409.
Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life—state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities— have devoted substantial attention to the question. This has led to an enhanced understanding of the issue—an understanding reflected in the arguments now presented

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for resolution as a matter of constitutional law. Of course, the Constitution contemplates that democ-
racy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id., at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id., at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “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.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid.

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Opinion of the Court
It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of samesex couples to marry.
This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights. In Bowers, a bare majority upheld a law criminalizing same-sex intimacy. See 478 U. S., at 186, 190–195. That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect, Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court. See id., at 199 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id., at 214 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why Lawrence held Bowers was “not correct when it was decided.” 539 U. S., at 578. Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.
A ruling against same-sex couples would have the same effect—and, like Bowers, would be unjustified under the Fourteenth Amendment. The petitioners’ stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Ijpe DeKoe and

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Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with the petitioners’ cases, the Court has a duty to address these claims and answer these questions.
Indeed, faced with a disagreement among the Courts of Appeals—a disagreement that caused impermissible geographic variation in the meaning of federal law—the Court granted review to determine whether same-sex couples may exercise the right to marry. Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society’s most basic compact. Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.
The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See Kitchen v. Herbert, 755 F. 3d 1193, 1223 (CA10 2014) (“[I]t 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”). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they

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27

Opinion of the Court
describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
V
These cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the case of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples.
Being married in one State but having that valid marriage denied in another is one of “the most perplexing and distressing complication[s]” in the law of domestic relations. Williams v. North Carolina, 317 U. S. 287, 299 (1942) (internal quotation marks omitted). Leaving the current state of affairs in place would maintain and pro-

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mote instability and uncertainty. For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages already have occurred—the disruption caused by the recognition bans is significant and ever-growing.
As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. See Tr. of Oral Arg. on Question 2, p. 44. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
* * *
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.

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29

AppendOixpiAnitoonoopfinthioenCoofutrhte Court

APPENDICES 

A 
 State and Federal Judicial Decisions 

Addressing Same-Sex Marriage


United States Courts of Appeals Decisions

Adams v. Howerton, 673 F. 2d 1036 (CA9 1982) Smelt v. County of Orange, 447 F. 3d 673 (CA9 2006)
Citizens for Equal Protection v. Bruning, 455 F. 3d 859 (CA8 2006)
Windsor v. United States, 699 F. 3d 169 (CA2 2012) Massachusetts v. Department of Health and Human
Services, 682 F. 3d 1 (CA1 2012) Perry v. Brown, 671 F. 3d 1052 (CA9 2012)
Latta v. Otter, 771 F. 3d 456 (CA9 2014) Baskin v. Bogan, 766 F. 3d 648 (CA7 2014)
Bishop v. Smith, 760 F. 3d 1070 (CA10 2014) Bostic v. Schaefer, 760 F. 3d 352 (CA4 2014)
Kitchen v. Herbert, 755 F. 3d 1193 (CA10 2014) DeBoer v. Snyder, 772 F. 3d 388 (CA6 2014)
Latta v. Otter, 779 F. 3d 902 (CA9 2015) (O’Scannlain, J., dissenting from the denial of rehearing en banc)

United States District Court Decisions

Adams v. Howerton, 486 F. Supp. 1119 (CD Cal. 1980) Citizens for Equal Protection, Inc. v. Bruning, 290
F. Supp. 2d 1004 (Neb. 2003) Citizens for Equal Protection v. Bruning, 368 F. Supp.
2d 980 (Neb. 2005)
Wilson v. Ake, 354 F. Supp. 2d 1298 (MD Fla. 2005) Smelt v. County of Orange, 374 F. Supp. 2d 861 (CD Cal.
2005) Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp. 2d
1239 (ND Okla. 2006)

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AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Massachusetts v. Department of Health and Human Services, 698 F. Supp. 2d 234 (Mass. 2010)
Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (Mass. 2010)
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (ND Cal. 2010)
Dragovich v. Department of Treasury, 764 F. Supp. 2d 1178 (ND Cal. 2011)
Golinski v. Office of Personnel Management, 824
 F. Supp. 2d 968 (ND Cal. 2012)

Dragovich v. Department of Treasury, 872 F. Supp. 2d
 944 (ND Cal. 2012)

Windsor v. United States, 833 F. Supp. 2d 394 (SDNY
 2012) 

Pedersen v. Office of Personnel Management, 881 
 F. Supp. 2d 294 (Conn. 2012)
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (Haw. 2012)
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (Nev. 2012) Merritt v. Attorney General, 2013 WL 6044329 (MD La., Nov. 14, 2013) Gray v. Orr, 4 F. Supp. 3d 984 (ND Ill. 2013) Lee v. Orr, 2013 WL 6490577 (ND Ill., Dec. 10, 2013) Kitchen v. Herbert, 961 F. Supp. 2d 1181 (Utah 2013) Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (SD Ohio 2013) Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (ND Okla. 2014) Bourke v. Beshear, 996 F. Supp. 2d 542 (WD Ky. 2014) Lee v. Orr, 2014 WL 683680 (ND Ill., Feb. 21, 2014) Bostic v. Rainey, 970 F. Supp. 2d 456 (ED Va. 2014) De Leon v. Perry, 975 F. Supp. 2d 632 (WD Tex. 2014) Tanco v. Haslam, 7 F. Supp. 3d 759 (MD Tenn. 2014) DeBoer v. Snyder, 973 F. Supp. 2d 757 (ED Mich. 2014) Henry v. Himes, 14 F. Supp. 3d 1036 (SD Ohio 2014) Latta v. Otter, 19 F. Supp. 3d 1054 (Idaho 2014)

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31

AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (Ore. 2014) Evans v. Utah, 21 F. Supp. 3d 1192 (Utah 2014) Whitewood v. Wolf, 992 F. Supp. 2d 410 (MD Pa. 2014) Wolf v. Walker, 986 F. Supp. 2d 982 (WD Wis. 2014) Baskin v. Bogan, 12 F. Supp. 3d 1144 (SD Ind. 2014) Love v. Beshear, 989 F. Supp. 2d 536 (WD Ky. 2014) Burns v. Hickenlooper, 2014 WL 3634834 (Colo., July 23, 2014) Bowling v. Pence, 39 F. Supp. 3d 1025 (SD Ind. 2014) Brenner v. Scott, 999 F. Supp. 2d 1278 (ND Fla. 2014) Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (ED La. 2014) General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (WDNC 2014) Hamby v. Parnell, 56 F. Supp. 3d 1056 (Alaska 2014) Fisher-Borne v. Smith, 14 F. Supp. 3d 695 (MDNC 2014) Majors v. Horne, 14 F. Supp. 3d 1313 (Ariz. 2014) Connolly v. Jeanes, ___ F. Supp. 3d ___, 2014 WL 5320642 (Ariz., Oct. 17, 2014) Guzzo v. Mead, 2014 WL 5317797 (Wyo., Oct. 17, 2014) Conde-Vidal v. Garcia-Padilla, 54 F. Supp. 3d 157 (PR 2014) Marie v. Moser, ___ F. Supp. 3d ___, 2014 WL 5598128 (Kan., Nov. 4, 2014) Lawson v. Kelly, 58 F. Supp. 3d 923 (WD Mo. 2014) McGee v. Cole, ___ F. Supp. 3d ___, 2014 WL 5802665 (SD W. Va., Nov. 7, 2014) Condon v. Haley, 21 F. Supp. 3d 572 (S. C. 2014) Bradacs v. Haley, 58 F. Supp. 3d 514 (S. C. 2014) Rolando v. Fox, 23 F. Supp. 3d 1227 (Mont. 2014) Jernigan v. Crane, ___ F. Supp. 3d ___, 2014 WL 6685391 (ED Ark., Nov. 25, 2014) Campaign for Southern Equality v. Bryant, ___ F. Supp. 3d ___, 2014 WL 6680570 (SD Miss., Nov. 25, 2014) Inniss v. Aderhold, ___ F. Supp. 3d ___, 2015 WL 300593 (ND Ga., Jan. 8, 2015)

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AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862 (S. D., 2015)
Caspar v. Snyder, ___ F. Supp. 3d ___, 2015 WL 224741 (ED Mich., Jan. 15, 2015)
Searcey v. Strange, 2015 U. S. Dist. LEXIS 7776 (SD Ala., Jan. 23, 2015)
Strawser v. Strange, 44 F. Supp. 3d 1206 (SD Ala. 2015) Waters v. Ricketts, 48 F. Supp. 3d 1271 (Neb. 2015)

State Highest Court Decisions
Baker v. Nelson, 291 Minn. 310, 191 N. W. 2d 185 (1971) Jones v. Hallahan, 501 S. W. 2d 588 (Ky. 1973) Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993) Dean v. District of Columbia, 653 A. 2d 307 (D. C. 1995) Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999) Brause v. State, 21 P. 3d 357 (Alaska 2001) (ripeness) Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003) In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N. E. 2d 565 (2004) Li v. State, 338 Or. 376, 110 P. 3d 91 (2005) Cote-Whitacre v. Department of Public Health,446 Mass. 350, 844 N. E. 2d 623 (2006) Lewis v. Harris, 188 N. J. 415, 908 A. 2d 196 (2006) Andersen v. King County, 158 Wash. 2d 1, 138 P. 3d 963 (2006) Hernandez v. Robles, 7 N. Y. 3d 338, 855 N. E. 2d 1 (2006) Conaway v. Deane, 401 Md. 219, 932 A. 2d 571 (2007) In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384 (2008) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A. 2d 407 (2008) Strauss v. Horton, 46 Cal. 4th 364, 207 P. 3d 48 (2009)

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33

AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009) 
 Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316 
 P. 3d 865 (2013) Garden State Equality v. Dow, 216 N. J. 314, 79 A. 3d 1036 (2013) Ex parte State ex rel. Alabama Policy Institute, ___ So. 3d ___, 2015 WL 892752 (Ala., Mar. 3, 2015)

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AppendOixpiBnitoonoopfinthioenCoofutrhte Court
B 
 State Legislation and Judicial Decisions

Legalizing Same-Sex Marriage


Legislation

Del. Code Ann., Tit. 13, §129 (Cum. Supp. 2014) D. C. Act No. 18–248, 57 D. C. Reg. 27 (2010) Haw. Rev. Stat. §572 –1 (2006) and 2013 Cum. Supp.)
Ill. Pub. Act No. 98–597 Me. Rev. Stat. Ann., Tit. 19, §650–A (Cum. Supp. 2014) 2012 Md. Laws p. 9
2013 Minn Laws p. 404 2009 N. H. Laws p. 60
2011 N. Y Laws p. 749 2013 R. I. Laws p. 7 2009 Vt. Acts & Resolves p. 33
2012 Wash. Sess. Laws p. 199

Judicial Decisions
Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003)
Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A. 2d 407 (2008)
Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009) Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316 P. 3d 865 (2013) Garden State Equality v. Dow, 216 N. J. 314, 79 A. 3d 1036 (2013)

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1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the

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OBERGEFELL v. HODGES

ROBERTS, C. J., dissenting
past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

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3

ROBERTS, C. J., dissenting
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” Ante, at 19. I have no choice but to dissent.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

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ROBERTS, C. J., dissenting

I 

Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?
The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even if history and precedent are not “the end” of these cases, ante, at 4, I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us. Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (slip op., at 8).
A
As the majority acknowledges, marriage “has existed for millennia and across civilizations.” Ante, at 3. For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. See ante, at 4; Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). As the Court explained two Terms ago, “until recent years, . . . 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.” United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 13).
This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbi-

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ans. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. See G. Quale, A History of Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57 (W. Miller transl. 1913) (“For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”).
The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.
Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002).
This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between

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a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers like John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end, procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “was a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006).
The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” Windsor, 570 U. S., at ___ (slip op., at 17) (quoting In re Burrus, 136 U. S. 586, 593–594 (1890)). There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388, 396–399 (CA6 2014). Even when state laws did not specify this definition expressly, no one doubted what they meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning of “marriage” went without saying.
Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the

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maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civil status of one man and one woman united in law for life.” Black’s Law Dictionary 756 (1891) (emphasis deleted). The dictionary maintained essentially that same definition for the next century.
This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as “the union for life of one man and one woman,” Murphy v. Ramsey, 114 U. S. 15, 45 (1885), which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888). We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967); see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942). More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail, 434 U. S. 374, 386 (1978).
As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court.

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Loving, 388 U. S., at 6–7. The majority observes that these developments “were
not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6.
B
Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972).
In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage.
Over the last few years, public opinion on marriage has

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shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage.
In all, voters and legislators in eleven States and the District of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage.
Petitioners brought lawsuits contending that the Due Process and Equal Protection Clauses of the Fourteenth Amendment compel their States to license and recognize marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged the democratic “momentum” in favor of “expand[ing] the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” 772 F. 3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm.
II
Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majority nevertheless resolves these cases for petitioners based

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almost entirely on the Due Process Clause. The majority purports to identify four “principles and
traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
A
Petitioners’ “fundamental right” claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. See ante, at 3, 14. They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.”
This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993). The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts, 291

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U. S. 97, 105 (1934). Allowing unelected federal judges to select which un-
enumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) (internal quotation marks omitted); see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”).
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical

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opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Id., at 621.
Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law.” Id., at 58.
The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to legislative concern about the health of bakery employees, an issue on which there was at least “room for debate and for an honest difference of opinion.” Id., at 72 (opinion of Harlan, J.). The majority’s contrary conclusion required adopting as constitutional law “an economic theory which a large part of the country does not entertain.” Id., at 75 (opinion of Holmes, J.). As Justice Holmes memorably put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. Ibid. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embody-

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ing them conflict with the Constitution.” Id., at 75–76. In the decades after Lochner, the Court struck down
nearly 200 laws as violations of individual liberty, often over strong dissents contending that “[t]he criterion of constitutionality is not whether we believe the law to be for the public good.” Adkins v. Children’s Hospital of D. C., 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights 42 (1958).
Eventually, the Court recognized its error and vowed not to repeat it. “The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726, 730 (1963); see DayBrite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952) (“we do not sit as a super-legislature to weigh the wisdom of legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955).
Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for “judicial self-restraint.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992). Our precedents have required that implied fundamental rights be “objec-

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tively, 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 720–721 (internal quotation marks omitted).
Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in Glucksberg, many other cases both before and after have adopted the same approach. See, e.g., District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 72 (2009); Flores, 507 U. S., at 303; United States v. Salerno, 481 U. S. 739, 751 (1987); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”); Troxel v. Granville, 530 U. S. 57, 96–101 (2000) (KENNEDY, J., dissenting) (consulting “ ‘[o]ur Nation’s history, legal traditions, and practices’ ” and concluding that “[w]e owe it to the Nation’s domestic relations legal structure . . . to proceed with caution” (quoting Glucksberg, 521 U. S., at 721)).
Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. Ante, at 18. But given the few “guideposts for responsible decisionmaking in this unchartered area,” Collins, 503 U. S., at 125, “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on [an] abstract formula,” Moore, 431 U. S., at 504, n. 12 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identify-

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ing fundamental rights, ante, at 10–11, does not provide a meaningful constraint on a judge, for “what he is really likely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut, 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment).
B
The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.
1
The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. Ante, at 3, 4, 6, 28. Nobody disputes those points. Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.
When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987); Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. These cases

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do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.
None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) (“at common law there was no ban on interracial marriage”); post, at 11–12, n. 5 (THOMAS, J., dissenting). Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.” Ante, at 11.
In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. See Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 8) (“What Windsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a very new right.”). Neither petitioners nor the majority cites a

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single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.
2
The majority suggests that “there are other, more instructive precedents” informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold, 381 U. S., at 486. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id., at 485– 486. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485. In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird, 405 U. S. 438, 453–454, n. 10 (1972) (internal quotation marks omitted); see Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).
The Court also invoked the right to privacy in Lawrence v. Texas, 539 U. S. 558 (2003), which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touc[h] upon the most private human conduct, sexual behavior . . . in the most private of places, the home.” Id., at 562, 567.
Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneli-

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ness” by the laws challenged in these cases—no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.”
The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961). As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id., at 546.
In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 35–37 (1973); post, at 9–13 (THOMAS, J., dissenting). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.

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3
Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. Ante, at 18 (quoting 521 U. S., at 721). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.
Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).
To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences

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adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).
The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” Ante, at 25. On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period.
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 144117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their

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children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.
4
Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” Ante, at 27. This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” 198 U. S., at 57.

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Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics. See Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does not enact any one concept of marriage.
The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” Ante, at 11. As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. “The

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past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951).
III
In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Ante, at 20. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.” G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013). The majority’s approach today is different:
“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” Ante, at 19.
The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Ante, at 22. Yet the majority fails to provide even a single sentence explaining how the Equal

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Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009). In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment).
It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.
IV
The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (KENNEDY, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the

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people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” Ante, at 7–9.
Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description— and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies.
Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unre-

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solved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16– 17).
The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of samesex marriage. They see voters carefully considering samesex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.
When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting).
But today the Court puts a stop to all that. By deciding

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this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for

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religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept samesex marriage. Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. Ante, at 19. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring defini-

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tion of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. Ante, at 19.
In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.
* * *
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
I respectfully dissent.

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SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

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Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
I
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of govern-

—————— 1 Brief for Respondents in No. 14–571, p. 14.

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ment is supposed to work.2 The Constitution places some constraints on self-rule—
constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people”9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?
Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):
“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10

——————
2 Accord, Schuette v. BAMN, 572 U. S. ___, ___–___ (2014) (plurality opinion) (slip op., at 15–17).
3 U. S. Const., Art. I, §10. 4 Art. IV, §1. 5 Amdt. 1. 6 Ibid. 7 Amdt. 2. 8 Amdt. 4. 9 Amdt. 10. 10 United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 16) (internal quotation marks and citation omitted).

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“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11
But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.12 We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its
——————
11 Id., at ___ (slip op., at 17). 12 See Town of Greece v. Galloway, 572 U. S. ___, ___–___ (2014) (slip op., at 7–8). 13 Ante, at 10.

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dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section

——————
14 Ante, at 11. 15 Ibid. 16 Ante, at 10–11. 17 Ante, at 12–18.

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of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
II
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that

——————
18 The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14–571 and 14– 574, pp. 1–5.
19 See Pew Research Center, America’s Changing Religious Landscape 4 (May 12, 2015).

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every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often
——————
20 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003).
21 Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 7). 22 If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that

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SCALIA, J., dissenting
profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court
——————
allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
23 Ante, at 13. 24 Ante, at 19. 25 Ibid.

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SCALIA, J., dissenting
really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
* * *
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

——————
26 The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A. Hamilton).

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1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our

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THOMAS, J., dissenting
Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
I
The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or property.” I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago, 561 U. S. 742, 811–812 (2010) (THOMAS, J., concurring in part and concurring in judgment). It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. U. S. Const., Amdt. 14, §1. Worse, it invites judges to do exactly what the majority has done here—“ ‘roa[m] at large in the constitutional field’ guided only by their personal views” as to the “ ‘fundamental rights’ ” protected by that document. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (Harlan, J., concurring in judgment)).
By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue

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that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” Brief for Petitioners in No. 14–562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court, ante, at 25, is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.1
II
Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.

——————
1 The majority states that the right it believes is “part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” Ante, at 19. Despite the “synergy” it finds “between th[ese] two protections,” ante, at 20, the majority clearly uses equal protection only to shore up its substantive due process analysis, an analysis both based on an imaginary constitutional protection and revisionist view of our history and tradition.

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A 1
As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.
Both of the Constitution’s Due Process Clauses reach back to Magna Carta. See Davidson v. New Orleans, 96 U. S. 97, 101–102 (1878). Chapter 39 of the original Magna Carta provided, “No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” Magna Carta, ch. 39, in A. Howard, Magna Carta: Text and Commentary 43 (1964). Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: “No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land.” 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words “by the law of the land” to mean the same thing as “by due proces of the common law.” Id., at 50.
After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ibid., William Blackstone referred to this provision as protecting the “absolute rights

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of every Englishman.” 1 Blackstone 123. And he formulated those absolute rights as “the right of personal security,” which included the right to life; “the right of personal liberty”; and “the right of private property.” Id., at 125. He defined “the right of personal liberty” as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” Id., at 125, 130.2
The Framers drew heavily upon Blackstone’s formulation, adopting provisions in early State Constitutions that replicated Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”3 State
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2 The seeds of this articulation can also be found in Henry Care’s influential treatise, English Liberties. First published in America in 1721, it described the “three things, which the Law of England . . . principally regards and taketh Care of,” as “Life, Liberty and Estate,” and described habeas corpus as the means by which one could procure one’s “Liberty” from imprisonment. The Habeas Corpus Act, comment., in English Liberties, or the Free-born Subject’s Inheritance 185 (H. Care comp. 5th ed. 1721). Though he used the word “Liberties” by itself more broadly, see, e.g., id., at 7, 34, 56, 58, 60, he used “Liberty” in a narrow sense when placed alongside the words “Life” or “Estate,” see, e.g., id., at 185, 200.
3 Maryland, North Carolina, and South Carolina adopted the phrase “life, liberty, or property” in provisions otherwise tracking Magna Carta: “That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.” Md. Const., Declaration of Rights, Art. XXI (1776), in 3 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 1688 (F. Thorpe ed. 1909); see also S. C. Const., Art. XLI (1778), in 6 id., at 3257; N. C. Const., Declaration of Rights, Art. XII (1776), in 5 id., at 2788. Massachusetts and New Hampshire did the same, albeit with some alterations to Magna Carta’s framework: “[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” Mass. Const., pt. I, Art. XII (1780), in 3 id., at 1891; see also

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decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word “liberty” to refer only to freedom from physical restraint. See Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 441–445 (1926). Even one case that has been identified as a possible exception to that view merely used broad language about liberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint. Cf. id., at 444–445.
In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s language in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See id., at 375. And that usage avoids rendering superfluous those protections for “life” and “property.”
If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California, 110 U. S. 516, 534–535 (1884). Indeed, this Court has previously commented, “The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” Ibid. And this
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N. H. Const., pt. I, Art. XV (1784), in 4 id., at 2455.

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Court’s earliest Fourteenth Amendment decisions appear to interpret the Clause as using “liberty” to mean freedom from physical restraint. In Munn v. Illinois, 94 U. S. 113 (1877), for example, the Court recognized the relationship between the two Due Process Clauses and Magna Carta, see id., at 123–124, and implicitly rejected the dissent’s argument that “ ‘liberty’ ” encompassed “something more . . . than mere freedom from physical restraint or the bounds of a prison,” id., at 142 (Field, J., dissenting). That the Court appears to have lost its way in more recent years does not justify deviating from the original meaning of the Clauses.
2
Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.
The founding-era understanding of liberty was heavily influenced by John Locke, whose writings “on natural rights and on the social and governmental contract” were cited “[i]n pamphlet after pamphlet” by American writers. B. Bailyn, The Ideological Origins of the American Revolution 27 (1967). Locke described men as existing in a state of nature, possessed of the “perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.” J. Locke, Second Treatise of Civil Government, §4, p. 4 (J. Gough ed. 1947) (Locke). Because that state of nature left men insecure in their persons and property, they entered civil society, trading a portion of their natural liberty for an increase in their security. See

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id., §97, at 49. Upon consenting to that order, men obtained civil liberty, or the freedom “to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will or restraint of any law, but what that legislative shall enact according to the trust put in it.” Id., §22, at 13.4
This philosophy permeated the 18th-century political scene in America. A 1756 editorial in the Boston Gazette, for example, declared that “Liberty in the State of Nature” was the “inherent natural Right” “of each Man” “to make a free Use of his Reason and Understanding, and to chuse that Action which he thinks he can give the best Account of,” but that, “in Society, every Man parts with a Small Share of his natural Liberty, or lodges it in the publick Stock, that he may possess the Remainder without Controul.” Boston Gazette and Country Journal, No. 58, May 10, 1756, p. 1. Similar sentiments were expressed in public speeches, sermons, and letters of the time. See 1 C.

——————
4 Locke’s theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that “natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” and described civil liberty as that “which leaves the subject entire master of his own conduct,” except as “restrained by human laws.” 1 Blackstone 121–122. And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry, ante, at 5 (THOMAS, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, “By liberty we mean the power, which a man has to act as he thinks fit, where no law restrains him; it may therefore be called a mans right over his own actions.” 1 T. Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions is originally under, is the obligation of governing himself by the law of nature, and the law of God,” and that “[w]hatever right those of our own species may have . . . to restrain [those actions] within certain bounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated our liberty, or transferred the right of directing our actions from ourselves to them.” Id., at 147–148.

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Hyneman & D. Lutz, American Political Writing During the Founding Era 1760–1805, pp. 100, 308, 385 (1983).
The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government. See Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L. J. 907, 918–919 (1993). As one later commentator observed, “[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from, not freedom to, freedom from a number of social and political evils, including arbitrary government power.” J. Reid, The Concept of Liberty in the Age of the American Revolution 56 (1988). Or as one scholar put it in 1776, “[T]he common idea of liberty is merely negative, and is only the absence of restraint.” R. Hey, Observations on the Nature of Civil Liberty and the Principles of Government §13, p. 8 (1776) (Hey). When the colonists described laws that would infringe their liberties, they discussed laws that would prohibit individuals “from walking in the streets and highways on certain saints days, or from being abroad after a certain time in the evening, or . . . restrain [them] from working up and manufacturing materials of [their] own growth.” Downer, A Discourse at the Dedication of the Tree of Liberty, in 1 Hyneman, supra, at 101. Each of those examples involved freedoms that existed outside of government.
B
Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.
Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They

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have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.
Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.
Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.
To the extent that the Framers would have recognized a natural right to marriage that fell within the broader

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definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse—without governmental interference. At the founding, such conduct was understood to predate government, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.” Locke §77, at 39; see also J. Wilson, Lectures on Law, in 2 Collected Works of James Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding “that to the institution of marriage the true origin of society must be traced”). Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition. Brief for Petitioners in No. 14– 556, p. 33.
Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.5 They were each sen-
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5 The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between “ ‘freeborne English women’ ” and “ ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong

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tenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3.6 In a similar vein, Zablocki v. Redhail, 434 U. S. 374 (1978), involved a man who was prohibited, on pain of criminal penalty, from “marry[ing] in Wisconsin or elsewhere” because of his outstanding child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley, 482 U. S. 78 (1987), involved state inmates who were prohibited from entering marriages without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental
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slavery in the colony. Id., at 19–20. Virginia’s antimiscegenation laws likewise were passed in a 1691 resolution entitled “An act for suppressing outlying Slaves.” Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 1969) (italics deleted). “It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy.” Pascoe, supra, at 27–28.
Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” Id., at 8. And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time).
6 The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment’s Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia, O.T. 1966, No. 395, pp. 12–16.

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recognition and benefits associated with marriage. In a concession to petitioners’ misconception of liberty,
the majority characterizes petitioners’ suit as a quest to “find . . . liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” Ante, at 2. But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority’s “better informed understanding of how constitutional imperatives define . . . liberty,” ante, at 19,—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’ ” Reid v. Covert, 354 U. S. 1, 9 (1957) (plurality opinion), not “Thou shalt provides.”
III
The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.
A
The majority apparently disregards the political process as a protection for liberty. Although men, in forming a civil society, “give up all the power necessary to the ends for which they unite into society, to the majority of the community,” Locke §99, at 49, they reserve the authority to exercise natural liberty within the bounds of laws established by that society, id., §22, at 13; see also Hey §§52, 54, at 30–32. To protect that liberty from arbitrary interference, they establish a process by which that society can

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adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree. See Locke §98, at 49 (suggesting that society would cease to function if it required unanimous consent to laws). What matters is that the process established by those who created the society has been honored.
That process has been honored here. The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition of marriage. Brief for Respondents in No. 14–571, pp. 1a– 7a. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.
B
Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.
The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422– 1425 (1990). When they arrived, they created their own havens for religious practice. Ibid. Many of these havens were initially homogenous communities with established

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religions. Ibid. By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion. Id., at 1437. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, id., at 1455, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution. But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See, e.g., Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.; Conn. Gen. Stat. §52–571b (2015).
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious

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practice.7 Although our Constitution provides some protection
against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.
IV
Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. Ante, at 3, 13, 26, 28.8 The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal”
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7 Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers who performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies. Va. Code Ann. §20–60 (1960).
8 The majority also suggests that marriage confers “nobility” on individuals. Ante, at 3. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.

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and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.
* * *
Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible

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understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

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SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.1 The question in
——————
1 I use the phrase “recognize marriage” as shorthand for issuing mar-

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these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.
I
The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.
To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, 521 U. S. 701, 720–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. ___, ___ (2013) (ALITO, J., dissenting) (slip op., at 7). Indeed:
“In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass.
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riage licenses and conferring those special benefits and obligations
 provided under state law for married persons. 


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309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.
“What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id., at ___ (slip op., at 7–8) (footnote omitted).
For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.
II
Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States

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encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that samesex marriage serves the States’ objectives in the same way as opposite-sex marriage.
This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.2 This de-
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2 See, e.g., Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, D. Martin, B. Hamilton, M. Osterman, S. Curtin, & T. Matthews, Births: Final Data for 2013, 64 National Vital Statistics Reports, No. 1, p. 2 (Jan. 15, 2015), online at http://www.cdc.gov/nchs/data/nvsr/nvsr64/

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velopment undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.
While, for many, the attributes of marriage in 21stcentury America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.
As I wrote in Windsor:
“The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
“We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some
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nvsr64_01.pdf (all Internet materials as visited June 24, 2015, and available in Clerk of Court’s case file); cf. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics (NCHS), S. Ventura, Changing Patterns of Nonmartial Childbearing in the United States, NCHS Data Brief, No. 18 (May 2009), online at http://www.cdc.gov/ nchs/ data/databrief/db18.pdf.

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time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution.
“At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.” 570 U. S., at ___ (dissenting opinion) (slip op., at 8–10) (citations and footnotes omitted).
III
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

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Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that

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preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.