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2

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5 UNITED STATES DISTRICT COURT
6 DISTRICT OF NEVADA
7

8 BEVERLY SEVCIK et al.,

9

Plaintiffs,

10

vs.

11 BRIAN SANDOVAL et al.,

12

Defendants.

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2:12-cv-00578-RCJ-PAL

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ORDER

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14

This case arises out of the refusal of the State of Nevada to permit same-sex couples to

15 enter into civil marriages, as well as its refusal to recognize same-sex marriages performed in

16 other states as “marriages” under Nevada law. The question before the Court is not the wisdom

17 of providing for or recognizing same-sex marriages as a matter of policy but whether the Equal

18 Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibits the People of

19 the State of Nevada from maintaining statutes that reserve the institution of civil marriage to one-

20 man–one-woman relationships or from amending their state constitution to prohibit the State

21 from recognizing marriages formed in other states as “marriages” under Nevada law if those

22 marriages do not conform to Nevada’s one-man–one-woman civil marriage institution. For the

23 reasons given herein, the Court rules that it does not. To the extent the present challenge is not

24 precluded by U.S. Supreme Court precedent, Defendants are entitled to summary judgment.

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1 I. FACTS AND PROCEDURAL HISTORY

2

The sixteen Plaintiffs in this case comprise eight same-sex couples who desire to marry

3 one another in Nevada or who have validly married one another in other jurisdictions and desire

4 to have their marriages recognized as “marriages” by the State of Nevada. (See Compl. ¶¶ 5–12,

5 Apr. 10, 2012, ECF No. 1). Defendants are Governor Brian Sandoval, Clark County Clerk and

6 Commissioner of Civil Marriages Diana Alba, Washoe County Clerk and Commissioner of Civil

7 Marriages Amy Harvey, and Carson City Clerk–Recorder Alan Glover. (See id. ¶¶ 13–16).

8 Except for the fact that they are of the same sex, the unmarried Plaintiff couples are otherwise

9 legally qualified to marry one another in Nevada. (See id. ¶ 24). Between April 1 and 6, 2012,

10 four of the unmarried Plaintiff couples were denied marriage licenses in Clark County, Washoe

11 County, and Carson City, variously, for this reason. (See id. ¶¶ 25–28). The other four Plaintiff

12 couples were validly married in other jurisdictions and challenge the State’s refusal to recognize

13 their foreign marriages as “marriages,” as opposed to “domestic partnerships,” under Nevada

14 law. (See id. ¶¶ 29–32).

15

Plaintiffs sued Defendants in this Court on a single claim under the Equal Protection

16 Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, requesting declaratory and

17 injunctive relief. The Court granted the Coalition for the Protection of Marriage’s (the

18 “Coalition”) motion to intervene after Plaintiffs withdrew their opposition to the motion. The

19 Court has heard oral argument on Governor Sandoval’s and Clerk–Recorder Glover’s separate

20 motions to dismiss. The Coalition, Clerk–Recorder Glover, Governor Sandoval, and Plaintiffs

21 have since filed cross motions for summary judgment. The Court decides all of these motions

22 via the present Order.

23 II. LEGAL STANDARDS

24

A. Dismissal

25

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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1 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

2 what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

3 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

4 that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

5 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

6 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

7 failure to state a claim, dismissal is appropriate only when the complaint does not give the

8 defendant fair notice of a legally cognizable claim and the factual grounds upon which it rests.

9 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint

10 is sufficient to state a claim, the court will take all material allegations as true and construe them

11 in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

12 Cir. 1986). The court, however, is not required to accept as true allegations that are merely

13 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

14 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

15 with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own

16 case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79

17 (2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff

18 pleads factual content that allows the court to draw the reasonable inference that the defendant is

19 liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule

20 8(a), a plaintiff must not only specify a cognizable legal theory (Conley review), but also must

21 plead the facts of his own case so that the court can determine whether he has any plausible basis

22 for relief under the legal theory he has specified, assuming the facts are as he alleges (Twombly-

23 Iqbal review).

24

“Generally, a district court may not consider any material beyond the pleadings in ruling

25 on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

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1 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

2 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

3 whose contents are alleged in a complaint and whose authenticity no party questions, but which

4 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

5 motion to dismiss” without converting the motion to dismiss into a motion for summary

6 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

7 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

8 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

9 considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

10 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

11 2001).

12

B. Summary Judgment

13

A court must grant summary judgment when “the movant shows that there is no genuine

14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

15 Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v.

16 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there

17 is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A

18 principal purpose of summary judgment is “to isolate and dispose of factually unsupported

19 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In determining summary

20 judgment, a court uses a burden-shifting scheme:

21

When the party moving for summary judgment would bear the burden of proof at

trial, it must come forward with evidence which would entitle it to a directed verdict

22

if the evidence went uncontroverted at trial. In such a case, the moving party has the

initial burden of establishing the absence of a genuine issue of fact on each issue

23

material to its case.

24 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations

25 and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden

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1 of proving the claim or defense, the moving party can meet its burden in two ways: (1) by

2 presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by

3 demonstrating that the nonmoving party failed to make a showing sufficient to establish an

4 element essential to that party’s case on which that party will bear the burden of proof at trial. See

5 Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, summary

6 judgment must be denied and the court need not consider the nonmoving party’s evidence. See

7 Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

8

If the moving party meets its initial burden, the burden then shifts to the opposing party to

9 establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

10 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party

11 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

12 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

13 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

14 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment

15 by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d

16 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and

17 allegations of the pleadings and set forth specific facts by producing competent evidence that

18 shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

19

At the summary judgment stage, a court’s function is not to weigh the evidence and

20 determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477

21 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are

22 to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely

23 colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50.

24 ///

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1 III. ANALYSIS

2

A. Nevada’s Marriage and Domestic Partnership Laws

3

The Nevada Constitution prohibits official recognition of same-sex marriages by the

4 State. See Nev. Const. art. I, § 21 (“Only a marriage between a male and female person shall be

5 recognized and given effect in [Nevada].”). The Nevada Legislature, however, has recently

6 provided for “domestic partnerships” between two persons of any gender. See generally Nev.

7 Rev. Stat. ch. 122A. Nevada recognizes both foreign marriages and foreign quasi-marriage

8 relationships that do not qualify as “marriages” under the Nevada Constitution as “domestic

9 partnerships” under Chapter 122A, regardless of the label used in the jurisdiction where the

10 relationship was formed. See Nev. Rev. Stat. § 122A.500.

11

A couple desiring to enter into a domestic partnership in Nevada must satisfy eligibility

12 requirements similar to, but not identical to, those requirements a couple desiring to enter into a

13 marriage must satisfy. See Nev. Rev. Stat. §§ 122A.100, 122A.110. Prospective domestic

14 partners must prove to the Secretary of State that they share a residence on at least a part-time

15 basis, that they are neither married nor in a domestic partnership in any state, that they are not

16 related by blood in a way that would prevent them from being married in Nevada, and that they

17 are both eighteen years old and competent to consent. See id. at § 122A.100(2), (4). If these

18 requirements are satisfied, the couple must then file with the Secretary of State a signed,

19 notarized form declaring their decision “to share one another’s lives in an intimate and

20 committed relationship of mutual caring” and that they desire of their own free will to enter into

21 a domestic partnership, and they must pay a reasonable fee to the Office of the Secretary of State.

22 See id. at § 122A.100(1). Domestic partners may solemnize their relationship, but they need not

23 do so to perfect it, and religious ministers and organizations may choose not to solemnize or

24 otherwise recognize such relationships. See id. at § 122A.110. Nevada’s laws do not purport to

25 prevent the celebration of domestic partnerships in religious or secular ceremonies, nor do they

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1 purport to prevent domestic partners or others from using the word “marriage” to describe the

2 relationship.

3

A couple desiring to enter into a civil marriage must satisfy slightly different

4 requirements, some of which are more stringent, and some of which are less stringent.

5 Prospective spouses must be one male and one female, and both must be eighteen years old,

6 although a person who is at least sixteen years old may marry with the permission of at least one

7 parent or legal guardian, and a person under sixteen may marry with the permission of at least

8 one parent or legal guardian plus approval by the district court—exceptions that are not available

9 to prospective domestic partners. See id. at §§ 122.020, 122.025. Although prospective domestic

10 partners must be neither married nor in another domestic partnership, see Nev. Rev. Stat.

11 § 122A.100(2)(b), a person who is already in a domestic partnership could apparently marry a

12 third person in Nevada, because the anti-bigamy clause under the marriage chapter prevents only

13 married persons from marrying again and says nothing of persons who are already in domestic

14 partnerships, see id. at § 122.020(1). Also, Chapter 122A is silent on whether opposite-sex

15 couples may enter into domestic partnerships; presumably, therefore, they can, though such a

16 union would not constitute a “marriage” under the Nevada Constitution. See id. at § 122A.510.

17 Unlike prospective domestic partners, prospective spouses may obtain the required marriage

18 license from the county clerk in any county in Nevada but must provide the clerk with certain

19 documentary evidence and must answer questions on the application form under oath. See id. at

20 § 122.040. They must also pay a fee to the county clerk. See id. at § 122.060. However, unlike

21 the “reasonable fee” to be charged by the Secretary of State to prospective domestic partners, the

22 fees to be paid by prospective spouses to county clerks are fixed by statute. See id. at § 122.060.

23 Unlike domestic partnerships, a judge, justice, or minister must solemnize a marriage. See id. at

24 § 122.010.

25

Except as otherwise provided in the statutes, domestic partners in Nevada have the same

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1 rights and responsibilities as spouses have, Nev. Rev. Stat. § 122A.200(1)(a), former domestic

2 partners have the same rights and responsibilities as former spouses have, id. at

3 § 122A.200(1)(b), surviving domestic partners have the same rights and responsibilities as

4 widows and widowers have, id. at § 122A.200(1)(c), domestic partners and former and surviving

5 domestic partners have the same rights and responsibilities with respect to their children as

6 spouses and former and surviving spouses have, id. at § 122A.200(1)(d), where state actors are

7 concerned, Nevada law immunizes domestic partners from any discriminatory effects of federal

8 law, id. at § 122A.200(1)(e) (“[t]o the extent that provisions of Nevada law adopt, refer to or rely

9 upon provisions of federal law in a way that otherwise would cause domestic partners to be

10 treated differently from spouses, domestic partners must be treated by Nevada law as if federal

11 law recognized a domestic partnership in the same manner as Nevada law”), and domestic

12 partners have the same right to nondiscriminatory treatment as spouses as a general matter, id. at

13 § 122A.200(1)(f). There is at least one notable exception to these equality provisions: “The

14 provisions of this chapter do not require a public or private employer in this State to provide

15 health care benefits to or for the domestic partner of an officer or employee,” id. at

16 § 122A.210(1), though employers may offer such coverage voluntarily, id. at § 122A.210(2).

17 Although the Nevada Constitution independently provides that a domestic partnership between

18 persons of the same sex cannot be a “marriage” in Nevada, Chapter 122A itself provides that no

19 domestic partnership is a “marriage” under the Nevada Constitution. See id. at § 122A.510. The

20 statutory provision is likely only important for opposite-sex domestic partners, because it adds

21 nothing to the Nevada Constitution’s prohibition against same-sex marriages.

22

B. Baker v. Nelson

23

Defendants argue that the present equal protection challenge is precluded by Baker v.

24 Nelson, 409 U.S. 810 (1972). In that case, the Supreme Court summarily dismissed an equal

25 protection challenge to Minnesota’s marriage laws for lack of a substantial federal question. See

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1 id. at 810.

2

The summary dismissal of an appeal for want of a substantial federal question operates as

3 a decision on the merits. Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (“[U]nless and until the

4 Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that

5 if the Court has branded a question as unsubstantial, it remains so except when doctrinal

6 developments indicate otherwise. . . . [L]ower courts are bound by summary decisions by this

7 Court until such time as the Court informs [them] that [they] are not.” (citations and internal

8 quotation marks omitted; alterations in original)). “Summary . . . dismissals for want of a

9 substantial federal question . . . reject the specific challenges presented in the statement of

10 jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts

11 from coming to opposite conclusions on the precise issues presented and necessarily decided by

12 those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). “A summary disposition affirms

13 only the judgment of the court below, and no more may be read into [the] action than was

14 essential to sustain that judgment.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S.

15 173, 182–83 (1979) (citation omitted). “Questions which ‘merely lurk in the record’ are not

16 resolved, and no resolution of them may be inferred.” Id. at 183 (citation omitted). Accordingly,

17 Baker controls the present case, unless the specific challenge presented in this case was not

18 decided by the Minnesota Supreme Court.

19

In Baker, the Minnesota Supreme Court ruled, inter alia, that “[t]he equal protection

20 clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s

21 classification of persons authorized to marry. . . . We hold, therefore, that [the statute permitting

22 only opposite-sex marriage] does not offend the . . . Fourteenth Amendment[] to the United

23 States Constitution.” Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). The Supreme Court

24 summarily dismissed the appeal from this decision “for want of a substantial federal question.”

25 See Baker, 409 U.S. at 810. The challenged statute in Baker was Chapter 517 of the Minnesota

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1 Statutes, which prohibited same-sex marriages. See Baker, 191 N.W.2d at 186. The plaintiffs in

2 Baker challenged that statute under the Ninth Amendment and the Due Process and Equal

3 Protection Clauses of the Fourteenth Amendment. See id. The Minnesota Supreme Court ruled

4 that the statute offended none of these constitutional provisions. See id. at 186–87. The U.S.

5 Supreme Court summarily dismissed the appeal, see Baker, 409 U.S. at 810, so this Court “had

6 best adhere to the view that” the question of whether a state’s refusal to recognize same-sex

7 marriage offends the Equal Protection Clause is constitutionally insubstantial, see Hicks, 422

8 U.S. at 344–45, and the Court is prevented from coming to an opposite conclusion, see Mandel,

9 432 U.S. at 176.

10

Governor Sandoval and Clerk–Recorder Glover therefore ask the Court to dismiss.

11 Plaintiffs respond that Baker does not control because Baker concerned the broader question of

12 whether the Equal Protection Clause requires a state to permit same-sex marriages, whereas the

13 present case concerns the narrower question of whether the Equal Protection Clause permits a

14 state to set up nearly identical civil institutions, i.e., marriage and domestic partnership, and then

15 exclude same-sex couples from one and not the other. As discussed in more detail, infra, the

16 State of Nevada has not done this in the way Plaintiffs argue it has. The Court finds that the

17 present challenge is in the main a garden-variety equal protection challenge precluded by Baker.

18 Plaintiffs also argue that the outcome in Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) cannot be

19 squared with Defendants’ interpretation of the Hicks doctrine. But the Court finds Perry to be

20 consistent with the view that Baker precludes a large part of the present challenge. The equal

21 protection claim is the same in this case as it was in Baker, i.e., whether the Equal Protection

22 Clause prevents a state from refusing to permit same-sex marriages. There is an additional line

23 of argument potentially applicable in this case based upon Romer v. Evans, 517 U.S. 620 (1996)

24 concerning the withdrawal of existing rights or a broad, sweeping change to a minority group’s

25 legal status. A Romer-type analysis is not precluded by Baker, because the Romer doctrine was

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1 not created until after Baker was decided. But the traditional equal protection claim is precluded,

2 and this is consistent with Perry. The Perry court was clear and emphatic that its decision was

3 based solely upon the Supreme Court’s withdrawal-of-existing-rights theory adopted in Romer in

4 1996, twenty-four years after Baker was decided, not upon a general equal protection challenge,

5 which the Court finds Baker precludes.

6

In summary, the present equal protection claim is precluded by Baker insofar as the claim

7 does not rely on the Romer line of cases, and Defendants are entitled to dismissal in part,

8 accordingly. Although the Court finds that Baker precludes a large part of the present challenge,

9 the Court will conduct a full equal protection analysis so that the Court of Appeals need not

10 remand for further proceedings should it rule that Baker does not control or does not control as

11 broadly as the Court finds.

12

C. Plaintiffs’ Equal Protection Challenge

13

“[B]ecause of the[] differences [in the rights and responsibilities of spouses and domestic

14 partners], coupled with the stigma of exclusion and of being branded by the government as

15 inferior, same-sex couples and their children suffer both tangible and dignitary harms, all of

16 which are of constitutional dimension.” (See Compl. ¶ 39). For this reason, Plaintiffs challenge

17 Section 21 of Article I of the Nevada Constitution (“Section 21”) and Nevada Revised Statutes

18 (“NRS”) section 122.020 under the Equal Protection Clause of the Fourteenth Amendment, both

19 facially and as applied. (See Compl. ¶¶ 88–89). Section 21 provides that only a marriage

20 between one man and one woman may be recognized as a marriage in Nevada, see Nev. Const.

21 art I, § 21, and NRS section 122.020 provides that prospective spouses must be, inter alia, of

22 opposite sexes to qualify for marriage, see Nev. Rev. Stat. § 122.020. Plaintiffs do not appear to

23 challenge any other provisions of Nevada law in the present lawsuit, and they have brought no

24 due process challenge.

25

In analyzing an equal protection challenge, a court first identifies the categorical

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1 distinction the state has drawn and determines what level of constitutional scrutiny applies to

2 such distinctions. E.g., United States v. Lopez-Flores, 63 U.S. 1468, 1472 (9th Cir. 1995) (citing

3 Jones v. Helms, 452 U.S. 412, 423–24 (1981); Hernandez v. Texas, 347 U.S. 475, 479 (1954)).

4 The court then scrutinizes the challenged law, accordingly. Id. (citing Plyler v. Doe, 457 U.S.

5 202, 217–18 (1982)).

6

1. Identification of the Distinction Drawn by the State

7

The parties appear to agree that the distinction drawn by the state of Nevada is

8 heterosexual versus homosexual persons, except that at least one Defendant argues that the State

9 has drawn no distinction at all because the laws at issue are facially neutral with respect to both

10 gender and sexual orientation. Under the conception of the distinction drawn by the State as

11 being between homosexual and heterosexual persons, the Court would apply rational-basis

12 scrutiny. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.

13 1990).

14

Before determining the level of review, however, the Court will more closely analyze the

15 distinction the State has drawn. Although the distinction the State has drawn (between one-

16 man–one-woman marriages on the one hand, and any other gender- or number-configuration of

17 spouses on the other hand) largely burdens homosexuals, the distinction is not by its own terms

18 drawn according to sexual orientation. Homosexual persons may marry in Nevada, but like

19 heterosexual persons, they may not marry members of the same sex. That is, a homosexual man

20 may marry anyone a heterosexual man may marry, and a homosexual woman may marry anyone

21 a heterosexual woman may marry. In this sense, the State of Nevada has drawn no distinction at

22 all. Under this conception of the (lack of) distinction drawn by the State, the laws at issue would

23 receive no scrutiny at all under the Equal Protection Clause.

24

In another sense, the State of Nevada may be said to have drawn a gender-based

25 distinction, because although the prohibition against same-sex marriage applies equally to men

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1 and women, “the statutes proscribe generally accepted conduct if engaged in by members of” the

2 same gender. Loving v. Virginia, 388 U.S. 1, 11 (1967). In pre-1967 Virginia, both Caucasians

3 and non-Caucasians were prohibited from interracial marriage (though a non-Caucasian could

4 marry another non-Caucasian of a difference race), and in Nevada, both men and women are

5 prohibited from same-sex marriage. The Loving Court, however, specifically rejected the

6 argument that a reciprocal disability necessarily prevents heightened scrutiny under the Equal

7 Protection Clause. See id. at 8 (“Because we reject the notion that the mere ‘equal application’ of

8 a statute containing racial classifications is enough to remove the classifications from the

9 Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept

10 the State’s contention that these statutes should be upheld if there is any possible basis for

11 concluding that they serve a rational purpose.”). In other words, Loving could fairly be said to

12 stand, inter alia, for the proposition that if a person could engage in generally acceptable activity

13 (marriage) but for characteristic X1 (non-Caucasian), then the level of scrutiny applicable to X14 based (race-based) distinctions applies to the disability, regardless of whether persons with

15 characteristic X2 (Caucasian) are subject to a reciprocal disability according to their own X-based 16 characteristic. Application of this principle here might counsel the use of intermediate scrutiny.

17 That is, just as in pre-1967 Virginia a Caucasian but not a non-Caucasian could marry another

18 Caucasian, and vice versa, in Nevada a man but not a woman may marry another woman, and

19 vice versa. Cf. id. at 11 (“There can be no question but that Virginia’s miscegenation statutes rest

20 solely upon distinctions drawn according to race. The statutes proscribe generally accepted

21 conduct if engaged in by members of different races.”). Under this conception of the distinction

22 drawn by the State, i.e., a gender-based distinction, the Court would apply intermediate scrutiny.

23 See, e.g., Hibbs v. Dep’t of Human Res., 273 F.3d 844, 855 (9th Cir. 2001).

24

Although the State appears to have drawn no distinction at all at first glance, and although

25 the distinction drawn by the State could be characterized as gender-based under the Loving

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1 reciprocal-disability principle, the Court finds that for the purposes of an equal protection

2 challenge, the distinction is definitely sexual-orientation based. The issue turns upon the alleged

3 discriminatory intent behind the challenged laws, which is the sine qua non of a claim of

4 unconstitutional discrimination. See Washington v. Davis, 426 U.S. 229, 240 (1976). “To state a

5 claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth

6 Amendment a plaintiff must show that the defendants acted with an intent or purpose to

7 discriminate against the plaintiff based upon membership in a protected class.” Lee v. City of

8 L.A., 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th

9 Cir. 1998)). “Where the challenged governmental policy is ‘facially neutral,’ proof of its

10 disproportionate impact on an identifiable group can satisfy the intent requirement only if it tends

11 to show that some invidious or discriminatory purpose underlies the policy.” Id. (citing Vill. of

12 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–66 (1977) (citing Washington,

13 426 U.S. at 242)).

14

The laws at issue here are not directed toward persons of any particular gender, nor do

15 they affect people of any particular gender disproportionately such that a gender-based animus

16 can reasonably be perceived. So although the Loving reciprocal-disability principle would

17 indicate a gender-based distinction in a case where the members of a particular gender were

18 targeted, because it is homosexuals who are the target of the distinction here, the level of scrutiny

19 applicable to sexual-orientation-based distinctions applies. See Loving, 388 U.S. at 11 (noting

20 that the anti-miscegenation laws at issue in that case targeted racial minorities because the laws

21 were “designed to maintain White Supremacy”). Here, there is no indication of any intent to

22 maintain any notion of male or female superiority, but rather, at most, of heterosexual superiority

23 or “heteronormativity” by relegating (mainly) homosexual legal unions to a lesser status. In

24 Loving, the elements of the disability were different as between Caucasians and non-Caucasians,

25 whereas here, the burden on men and women is the same. The distinction might be gender based

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1 if only women could marry a person of the same sex, or if only women could marry a

2 transgendered person, or if the restriction included some other asymmetry between the burdens

3 placed on men and the burdens placed on women. But there is no distinction here between men

4 and women, and the intent behind the law is to prevent homosexuals from marrying.

5

2. The Level of Scrutiny Applicable to Sexual-Orientation-Based Distinctions

6

The Supreme Court has never explicitly stated what level of scrutiny inferior courts are to

7 apply to distinctions drawn according to sexual orientation, though it has implied that rational

8 basis scrutiny applies because it has never applied any higher standard in relevant cases. See, e.g.,

9 Romer, 517 U.S. at 631–32 (citing Heller v. Doe, 509 U.S. 312, 319–20 (1993)) (applying the

10 rational basis standard). The Court of Appeals, however, has ruled that “homosexuals do not

11 constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the

12 equal protection component of the Due Process Clause of the Fifth Amendment.” High Tech 13 Gays, 895 F.2d at 574.1 Although the High Tech Gays court cited to Bowers v. Hardwick, 478

14 U.S. 186 (1986) (holding that private, homosexual activity may be criminalized), which was

15 overruled by Lawrence v. Texas, 539 U.S. 558 (2003), see Golinski v. Office of Pers. Mgmt., 824

16 F. Supp. 2d 968, 983–84 (N.D. Cal. 2012), the Lawrence Court did not adopt any standard of

17 review applicable to distinctions drawn according to sexual orientation for the purposes of equal

18 protection, and therefore Lawrence is not on point for the purposes of the standard of review to

19 be applied, and only the Court of Appeals sitting en banc may overrule High Tech Gays’

20 adoption of the rational basis standard for distinctions drawn according to sexual orientation, see

21 Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).

22

23 1 Although High Tech Gays concerned the “equal protection component” of the Fifth
24 Amendment, see id., “[e]qual protection analysis in the Fifth Amendment area is the same as that
under the [Equal Protection Clause of the] Fourteenth Amendment,” Buckley v. Valeo, 424 U.S. 25 1, 93 (1976).

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1

High Tech Gays’ adoption of rational basis scrutiny for sexual-orientation-based

2 distinctions is not “clearly irreconcilable” with Lawrence such that a district court may ignore it

3 under Miller. Rather, the Court agrees with the Jackson and Dragovic courts, which have ruled

4 that High Tech Gays survived Lawrence in this regard. See Jackson v. Abercrombie, No.

5 11–00734 ACK–KSC, 2012 WL 3255201, at *29, (D. Haw. 2012) (ruling that Lawrence did not

6 undercut High Tech Gays’ holding that rational basis scrutiny applies to sexual-orientation-based

7 distinctions); Dragovich v. U.S. Dep’t of the Treasury, No. C 10–01564 CW, 2012 WL 1909603,

8 at *9 (N.D. Cal. 2012) (same). More importantly, as those courts also noted, the Court of

9 Appeals directly ruled just four years ago that High Tech Gays survived Lawrence with respect to

10 the level of scrutiny to be applied in sexual-orientation-based equal protection challenges. See

11 Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008) (citing Philips v. Perry, 106 F.3d

12 1420, 1424–25 (1997) (citing High Tech Gays, 895 F.2d at 574)) (“Philips clearly held that [the

13 Department of Defense’s former ‘don’t ask, don’t tell’ policy] does not violate equal protection

14 under rational basis review, and that holding was not disturbed by Lawrence, which declined to

15 address equal protection.” (citation omitted)).

16

And this would be the result even in the absence of Witt. The Lawrence Court had

17 certified three questions: (1) whether Texas’ anti-sodomy law was infirm under the Equal

18 Protection Clause of the Fourteenth Amendment; (2) whether the law was infirm under the Due

19 Process Clause of the Fourteenth Amendment; and (3) whether Bowers should be overruled. See

20 539 U.S. at 564. The Court resolved the case under the second two questions. See id. (“We

21 conclude the case should be resolved by determining whether the petitioners were free as adults

22 to engage in the private conduct in the exercise of their liberty under the Due Process Clause of

23 the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to

24 reconsider the Court’s holding in Bowers.”). Lawrence’s rejection of Texas’ anti-sodomy law

25 was based upon the Due Process Clause, not upon the Equal Protection Clause. See id. at 578

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1 (“Their right to liberty under the Due Process Clause gives them the full right to engage in their

2 conduct without intervention of the government.”). Bowers in turn had also been decided purely

3 under the Due Process Clause. See Bowers, 478 U.S. at 190 (“The issue presented is whether the

4 Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . . .”);

5 id. at 201 (Blackmun, J., dissenting) (lamenting the Court’s refusal to consider an equal

6 protection challenge).

7

The High Tech Gays court noted that other Courts of Appeals had reasoned that the fact

8 that homosexual behavior could be criminalized outright necessarily precluded a ruling that a

9 group defined by a desire or propensity to engage in such activity could be a suspect or quasi-

10 suspect class for the purposes of equal protection. See 895 F.2d at 571 & n.6. But it simply does

11 not follow that because Bowers independently prevented heightened scrutiny, that heightened

12 scrutiny is necessarily an open question now that Bowers has been overruled. That would be the

13 case if High Tech Gays had relied exclusively upon Bowers, but it did not. The High Tech Gays

14 court’s analysis of whether sexual-orientation-based distinctions deserve heightened scrutiny did

15 not need to rely on Bowers simply because Bowers independently necessitated the result. The

16 High Tech Gays court separately analyzed whether homosexuals constituted a suspect class under

17 the traditional factors and determined they did not. See 895 F.2d at 573–74. The court noted that

18 to obtain recognition as a suspect class for equal protection purposes, the class “must 1) have

19 suffered a history of discrimination; 2) exhibit obvious, immutable, or distinguishing

20 characteristics that define them as a discrete group; and 3) show that they are a minority or

21 politically powerless, or alternatively show that the statutory classification at issue burdens a

22 fundamental right.” Id. at 573 (citing Bowen v. Gilliard, 483 U.S. 587, 602–03 (1987) (citing

23 Lyng v. Castillo, 477 U.S. 635, 638 (1986))). The court found that homosexuals had suffered a

24 history of discrimination, but that homosexuality was not immutable and that homosexuals were

25

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1 not politically powerless because they had successfully lobbied legislatures to pass anti-

2 discrimination legislation protecting them. See id. at 573–74.

3

Although Witt confirmed that Lawrence did not reopen High Tech Gays’ determination

4 that homosexuals are not a suspect or quasi-suspect class, reexamination of the issue today would

5 only tend to tilt the scales further towards rational basis review. First, homosexuals have indeed

6 suffered a history of discrimination, but it is indisputable that public acceptance and legal

7 protection from discrimination has increased enormously for homosexuals, such that this factor is

8 weighted less heavily towards heightened scrutiny than it was in 1990. It is the present state of

9 affairs and any lingering effects of past discrimination that are important to the analysis, not the

10 mere historical facts of discrimination taken in a vacuum. Although historical discrimination

11 taken alone may be relevant to a showing under the second factor, i.e., whether the group is in

12 fact a discretely identifiable group, without a showing of continuing discrimination or lingering

13 effects of past discrimination, the first factor does not tend to support an argument that the group

14 need be protected from majoritarian processes. Unlike members of minority races, for example,

15 homosexuals do not in effect inherit the effects of past discrimination through their parents. That

16 is, members of certain racial minorities are more likely to begin life at a socioeconomic

17 disadvantage because of historical discrimination against their ancestors, the effects of which are

18 passed from parent to child, taking many generations to ameliorate via the later removal of

19 discrimination. On the contrary, homosexuality by its nature, whether chosen or not, is a

20 characteristic particularly unlikely to be passed from parent to child in such a way that the effects

21 of past discrimination against one’s ancestors will have effects upon oneself. In the context of a

22 characteristic like homosexuality, where no lingering effects of past discrimination are inherited,

23 it is contemporary disadvantages that matter for the purposes of assessing disabilities due to

24 discrimination. Any such disabilities with respect to homosexuals have been largely erased since

25 1990.

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1

Second, the Supreme Court has not yet ruled that homosexuality is immutable for the

2 purposes of equal protection, so although public and scientific opinion on the matter may have

3 changed in the intervening years, High Tech Gays’ analysis on the point cannot be

4 countermanded by a district court on that basis. Assuming for the sake of argument that the

5 characteristic is immutable for the purposes of an equal protection analysis, this factor would

6 weigh in favor of heightened scrutiny.

7

Third, and most importantly, the Supreme Court has not ruled that homosexuals lack

8 political power such that High Tech Gays’ determination that they do not lack it has been

9 undermined, and homosexuals have in fact gained significant political power in the years since

10 High Tech Gays was decided. Today, unlike in 1990, the public media are flooded with editorial,

11 commercial, and artistic messages urging the acceptance of homosexuals. Anti-homosexual

12 messages are rare in the national informational and entertainment media, except that anti-

13 homosexual characters are occasionally used as foils for pro-homosexual viewpoints in

14 entertainment media. Homosexuals serve openly in federal and state political offices. The

15 President of the United States has announced his personal acceptance of the concept of same-sex

16 marriage, and the announcement was widely applauded in the national media. Not only has the

17 President expressed his moral support, he has directed the Attorney General not to defend against

18 legal challenges to the Defense of Marriage Act (“DOMA”), a federal law denying recognition to

19 same-sex marriages at the federal level. It is exceedingly rare that a president refuses in his

20 official capacity to defend a democratically enacted federal law in court based upon his personal

21 political disagreements. That the homosexual-rights lobby has achieved this indicates that the

22 group has great political power. The State of Nevada has itself outlawed sexual-orientation-

23 based discrimination as a general matter. See generally Nev. Rev. Stat. ch. 233. Congress has

24 not included the category under Title VII’s protections, however. See 42 U.S.C. § 2000e-2. In

25 2012 America, anti-homosexual viewpoints are widely regarded as uncouth. All in all, the

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1 political power of homosexuals has increased tremendously since 1990 when the High Tech Gays

2 court ruled that the group did not, even then, sufficiently lack political power for the purposes of

3 an equal protection analysis. This factor therefore weighs greatly in favor of rational basis

4 review.

5

The Court respectfully disagrees with the recent conclusion of the Second Circuit to the

6 contrary in a DOMA case. See Windsor v. United States, Nos. 12-2335, 12-2435, 2012 WL

7 4937310 (2nd Cir. 2012). That court concluded: “The question is not whether homosexuals have

8 achieved political successes over the years; they clearly have. The question is whether they have

9 the strength to politically protect themselves from wrongful discrimination.” Id. at *9. That

10 statement is strictly true, but the answer to the second question is powerfully influenced by the

11 answer to the first question, because political success is the most direct, if not defining, indicator

12 of the ability to protect oneself through political processes. The Court believes the test as

13 presented, or at least as applied, by the Second Circuit is little test at all, but rather a reason

14 behind an absolute (or nearly absolute) rule that the Second Circuit has now impliedly adopted,

15 i.e., that a discrete minority group challenging a discriminatory law necessarily lacks political

16 power for the purposes of a level-of-scrutiny analysis based purely upon the fact that the group

17 has not been able democratically to avoid or alter the law it is challenging in a particular case.

18 That result obviates the Supreme Court’s use of political powerlessness as a factor in assessing

19 the level of scrutiny to be applied. If a plaintiff could necessarily win on the political

20 powerlessness factor of the level-of-scrutiny analysis by the very fact that he was unable to

21 challenge a particular law democratically, the factor would be meaningless. Political

22 powerlessness for the purpose of an equal protection analysis does not mean that the members of

23 a group have failed to achieve all of their goals or have failed to achieve the particular goal they

24 aim to achieve via the lawsuit in which the political powerlessness issue is litigated. The English

25 suffix “-less” means “without,” and “powerless” means “without power,” not “without total

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1 power.” If there were no legal space in which a minority group had sufficient political power

2 such that it were not entitled to heightened scrutiny under an equal protection analysis, but where

3 it had failed to succeed democratically on a particular challenged issue, then the analysis of the

4 group’s political power for the purposes of a heightened scrutiny analysis would be no analysis at

5 all—a plaintiff would have prevailed on the issue by the mere fact that he had standing to file a

6 lawsuit. What legal space would such reasoning leave for a state to prevail on the Supreme

7 Court’s political powerlessness factor, which inferior courts must presumably treat as a

8 meaningful inquiry?

9

Any minority group can reasonably argue that its political power is less than it might be

10 were the group either not a minority or more popular. That is simply an inherent aspect of

11 democracy. That issue is relevant to the powerlessness analysis, but it is not dispositive of it.

12 There are a myriad of factors in a democratic society that may permit a minority or disfavored

13 group to succeed democratically, such as legislators’ disinclination to be labeled as bigots or

14 even as unreasonable, the desire of another faction to pass legislation on which it needs the first

15 minority’s or their allies’ cooperation, or other factors. The question of “powerlessness” under

16 an equal protection analysis requires that the group’s chances of democratic success be virtually

17 hopeless, not simply that its path to success is difficult or challenging because of democratic

18 forces. Even assuming that homosexuals are themselves under-represented in legislatures, see id.

19 (discussing the practical difficulty in assessing this fact), this does not mean that pro-homosexual

20 legislators are under-represented or that anti-homosexual (or indifferent) legislators cannot be

21 made to compromise democratically. In the present case, it simply cannot be disputed that there

22 have historically been sufficient pro-homosexual legislators (or anti-homosexual and indifferent

23 legislators who can be democratically bargained with) in the State of Nevada to protect

24 homosexuals from oppression as a general matter. See, e.g., Nev. Rev. Stat. §§ 118.020, 233.010,

25 613.330. Plaintiffs’ democratic loss on a particular issue does not prove that they lack political

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1 power for the purposes of an equal protection analysis. That homosexuals cannot protect

2 themselves democratically without aid from other groups is a conclusion that is necessarily true

3 for any minority group by definition, so treating this point as dispositive would avoid any

4 meaningful analysis of the political powerlessness factor. See City of Cleburne v. Cleburne

5 Living Ctr., 473 U.S. 432, 445 (1985) (“Any minority can be said to be powerless to assert direct

6 control over the legislature, but if that were a criterion for higher level scrutiny by the courts,

7 much economic and social legislation would now be suspect.”). The relevant consideration is the

8 group’s “ability to attract the attention of the lawmakers,” an ability homosexuals cannot

9 seriously be said not to possess. See id. The issue of homosexual rights, and particularly the

10 issue of same-sex marriages or quasi-marriage relationships has been front and center in

11 American politics for nearly a decade. Just this month, the People of several more States voted

12 whether to approve or prohibit same-sex marriages.

13

The Windsor court wrote that “it is safe to say that the seemingly small number of

14 acknowledged homosexuals [in positions of power or authority] is attributable either to a

15 hostility that excludes them or to a hostility that keeps their sexual preference private—which,

16 for our purposes, amounts to much the same thing.” Id. But it is not necessarily safe to say this.

17 A small number of homosexuals in certain positions of power could just as easily indicate that

18 homosexuals constitute an equally small proportion of the population. The number of open

19 homosexuals in such positions will only “seem[] small” to an observer who assumes that the

20 proportion of homosexuals in society at large is greater than the proportion of open homosexuals

21 in these kinds of positions. And there is a third option the Windsor court did not discuss, i.e.,

22 that the “seemingly” small number of open homosexuals in positions of power or authority may

23 be largely attributable to neither exclusion nor sexual-orientation-based shame that discourages

24 them from identifying themselves, but rather to the fact that people as a general matter—and

25 especially people in positions of power and prestige—tend not to draw attention to their sexual

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1 practices or preferences, whatever they may be, for social, career, and economic reasons. This

2 natural disinclination of public figures to announce their sexual practices or preferences does not

3 necessarily transform into passive oppression simply because the sexual practices or preferences

4 of a particular subset of persons also happens to be a matter of special social controversy. Lastly,

5 a homosexual person simply need not announce his or her own homosexuality to be active in the

6 fight for homosexual rights. Many advocates of homosexual rights are themselves heterosexual,

7 and there is no need to announce one’s sexual orientation or preferences in order to advocate for

8 homosexual rights. To whatever degree homosexuals have not been able to succeed politically to

9 the extent many people wish, it is clear that, in Nevada at least, homosexuals have been able to

10 enact laws protecting their interests through the democratic process, including laws protecting

11 them from discrimination in areas such as employment and housing, as well as laws creating

12 outright legal status for homosexual relationships.

13

In arguing for heightened scrutiny for gender-based distinctions in 1973, Justice Brennan

14 opined that women’s recent political successes should not be dispositive of the political

15 powerlessness analysis. See Frontiero v. Richardson, 411 U.S. 677, 685–86 (1973) (Brennan, J.) 16 (plurality opinion).2 But even assuming this reasoning were precedential, the reasons with which

17 Justice Brennan supported his conclusion in that case are for the most part not present here.

18 Although women had been able to attract the attention of lawmakers during the early- and mid-

19 Twentieth Century, they had been under-represented democratically for a long time prior to those

20 political successes because they could not vote, such that for centuries their political voice was

21 disproportionately small compared to their numbers. See id. at 685. Women had also been

22 excluded from juries and even been denied the basic right of property ownership for centuries.

23 2Four justices concurred in the judgment, based upon rational basis review. See id. at 691
24 (Stewart, J., concurring in the judgment with Burger, C.J., and Blackmun, J.) (citing Reed v.
Reed, 401 U.S. 71 (1971)); id. (Powell, J., concurring in the judgment) (citing Reed, 401 U.S. 25 71).

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1 See id. Homosexuals have not historically been denied the right to vote, the right to serve on

2 juries, or the right to own property. Although the right to vote could have been lost for

3 conviction under a felony anti-sodomy law, the fraction of homosexuals disenfranchised due to

4 conviction of such crimes was almost certainly minuscule, and the need or desire to keep one’s

5 sexual orientation secret because of such laws, though perhaps regrettable, would have no effect

6 on one’s ability to vote, serve on a jury, or otherwise participate in American democracy. Also,

7 the continued discrimination against women in 1973 was largely due to the high visibility of the

8 sex characteristic, a visibility that the characteristic of homosexuality does not have to nearly the

9 same extent as gender. See id. at 686.

10

The assessment of a group’s disabilities and its political power to remove them is a

11 critical factor in determining whether heightened scrutiny should apply under the Fourteenth

12 Amendment where a particular prohibition is not textually clear, because political power is the

13 factor that speaks directly to whether a court should take the extreme step of removing from the

14 People the ability to legislate in a given area. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411

15 U.S. 1, 28 (1973) (noting that a suspect class is one that is “saddled with such disabilities, or

16 subjected to such a history of purposeful unequal treatment, or relegated to such a position of

17 political powerlessness as to command extraordinary protection from the majoritarian political

18 process”).

19

Gross movements by the judiciary with respect to democratic processes can cause an

20 awkward unbalancing of powers in a Madisonian constitutional democracy3 and undermine both

21

3Justice Powell’s note in concurrence in Frontiero that the plurality’s suggestion of strict

22 scrutiny for gender-based classifications would preempt the democratic adoption of the Equal Rights Amendment (“ERA”) then being considered for ratification by the states was prophetic.

23 See Frontiero, 411 U.S. at 692 (Powell, J., concurring in the judgment). Perhaps because of the

usurpation of the issue by the courts, the state legislatures felt neither the need nor the political

24 pressure to adopt that proposed amendment, which has languished for nearly half a century after

approval by Congress. Because the courts have withdrawn the issue from legislative control,

25 what rational state legislator would risk his political career by attempting to force a vote on the

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1 public confidence in the judiciary and the legitimacy of the government in general. Where a

2 constitutional prohibition is reasonably clear, a court’s removal of the relevant issue from

3 legislative control is largely uncontroversial, and appropriately so, because the People realize that

4 the issue has in fact already been decided democratically, either at the Constitutional Convention

5 or later via the Article V amendment procedure. In such cases, the judiciary does not usurp the

6 democratic process but rather respects and enforces a democratic decision made at the

7 constitutional level as against a more recent democratic attempt to change the law at a lower

8 legislative level.

9

The Constitution and Amendments thereto, which have been ratified by the States,

10 represent a collection of democratic choices adopted in order to control future democratic

11 choices. The Constitution is in this regard a “super statute,” i.e., a statute that controls the

12 enactment of statutes. Cf. H.L.A. Hart, The Concept of Law 81 (2d ed. 1961) (explaining what he

13 calls “primary” and “secondary” rules). When the judiciary interferes with a legislative

14 democratic choice in favor of a constitutional democratic choice, it ensures that a legislature

15 cannot countermand an earlier democratic choice to which the People have assigned a higher

16 level of priority. See Marbury v. Madison, 5 U.S. 137, 176–80 (1803) (Marshall, C.J.). Such an

17 act of “judicial review” is therefore not in derogation of democratic principles, but rather is

18 ultimately in support of them.4

19 ERA where there is no longer any practical need to do so? The supporters of the ERA no longer

exert pressure on the legislatures to act, because they have been satisfied by the courts. A 20 legislator has little to gain by supporting the ERA at this stage but the enmity of the amendment’s

opponents.

21

4It is often said that the Constitution is “anti-democratic” because it restricts legislative

22 choices. But so long as judges read constitutional restrictions reasonably, the process remains democratic at its core, because the Constitution itself was and is subject to democratic forces. It

23 was ratified by the People of the States, and it remains subject to amendment through a defined,

democratic process. By contrast, in some nations, such as in the Islamic Republic of Iran, the

24 process of judicial review is truly anti-democratic, because the standards by which a body such as

the Guardian Council reviews the acts of the legislature are subject not only to a written

25 constitution, but also to the Guardian Council’s interpretation of a religious tradition that is not

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1

But a court must only take such action when the constitutional rule is reasonably clear.

2 The most difficult problems arise when the text of a constitutional provision provides vague

3 standards, such as “equal protection of the laws.” Judges and laymen alike often disagree

4 whether a particular law runs afoul of the vaguer prohibitions of the Constitution. Where a court

5 considers invalidating a democratically adopted law because of a conflict with one of these

6 vaguer clauses, it must tread lightly, lest its rulings appear to the People not to constitute a fair

7 and reasonable enforcement of constitutional restrictions to which they or their ancestors have

8 previously democratically agreed, but rather a usurpation of democratic governance via judicial

9 whim—a judicial practice much in vogue today. Where there is no clear prohibition of

10 discrimination according to a particular category, and where the group complaining of

11 discrimination has meaningful political power to protect its own interests, it is inappropriate for a

12 court to remove the issue from legislative control.

13

The States are currently in the midst of an intense democratic debate about the novel

14 concept of same-sex marriage, and homosexuals have meaningful political power to protect their

15 interests. At the state level, homosexuals recently prevailed during the 2012 general elections on

16 same-sex marriage ballot measures in the States of Maine, Maryland, and Washington, and they

17 prevailed against a fourth ballot measure that would have prohibited same sex marriage under the

18 Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other

19
and has never been subject to democratic forces. Whether such a standard is grounded in religion 20 or secular philosophy makes no difference with respect to the issue of self-governance. If the 21 standards by which a judge reviews legislative acts are the product of his private philosophical
views, and not simply a reasonable interpretation of a legal text to which the governed have 22 agreed, he exceeds his lawful power over the governed and to that extent becomes a despot just
as if an executive officer had made the decision himself. Were a court’s opinions in the area of 23 judicial review treated only as advisory, the possibility of harm would not be so great. But so
long as the Executive and the States are not practically free to ignore a court’s opinions in the 24 area of judicial review, but rather will follow them as a matter of course according to the
constitutional culture of the Nation, it makes no difference that the judge himself does not have 25 the power of execution via officers directly in his employ.

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1 recent democratic victories, that homosexuals do not have the ability to protect themselves from

2 discrimination through democratic processes such that extraordinary protection from majoritarian

3 processes is appropriate.5

4

“[D]emocratic institutions are weakened, and confidence in the restraint of the Court is

5 impaired, when we appear unnecessarily to decide sensitive issues of broad social and political

6 importance at the very time they are under consideration within the prescribed constitutional

7 processes.” Frontiero, 401 U.S. at 692 (Powell, J., concurring in the judgment). Only where a

8 discrete minority group’s political power is so weak and ineffective as to make attempts to

9 succeed democratically utterly futile is it even arguably appropriate for a court to remove relevant

10 issues from the democratic process, except where a constitutional prohibition clearly removes the

11 issue from legislative control, in which case a court’s intervention is mandated by democratic

12 constitutional principles. See Marbury, 5 U.S. at 176–80. The Equal Protection Clause of the

13 Fourteenth Amendment does not clearly remove laws distinguishing between persons on the

14 basis of sexual orientation from democratic control. Although the courts have ruled that a

15 challenge to virtually any law is entitled to at least rational basis review under the Equal

16 Protection Clause, the above analysis makes heightened scrutiny inappropriate in this case.

17

The High Tech Gays court also ruled that no fundamental rights were burdened in that

18 case, because there was no fundamental right to homosexual activity. That holding has been

19 directly overruled by the Lawrence Court, but unlike the Department of Defense policy at issue

20 in High Tech Gays that made homosexual activity an automatic trigger for heightened

21 investigative attention when applying for a security clearance, see 895 F.2d at 568, the laws at

22 issue in the present case do not burden the right to private, consensual, homosexual activity that

23 5The fact that national attitudes are shifting in favor of acceptance of same-sex marriage
24 and homosexual rights in general only tends to weaken the argument that homosexuals require
extraordinary protection from majoritarian processes via heightened scrutiny under the Equal 25 Protection Clause.

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1 the Lawrence Court recognized. The rights burdened under the challenged laws in this case are

2 certain state-created rights, such as the right to have one’s partner covered under an employer-

3 provided health insurance plan and the right to enter into a marriage or quasi-marriage

4 relationship with a sixteen or seventeen year-old person if that person’s parent or guardian

5 consents, see supra, which rights are not fundamental. Although there is a fundamental right to

6 “marry,” that right consists substantively of the ability to establish a family, raise children, and,

7 in certain contexts, maintain privacy. Zablocki v. Redhail, 434 U.S. 374, 383–84 (1978)

8 (collecting cases). It is these components that comprise the fundamental “right to marry”

9 recognized under the Fourteenth Amendment, not the civil benefits and responsibilities

10 accompanying the legal status of marriage, which vary from state to state. Although the title of

11 “marriage” has been withheld, the State of Nevada has burdened none of the core substantive

12 rights that comprise the right to marry, sometimes referred to as the “constitutional incidents of

13 marriage.” Plaintiffs may establish legally cognizable families under Nevada’s domestic

14 partnership laws—an option that was not available to Mr. Redhail in 1978 Wisconsin.

15

It is also worth noting that Nevada’s laws do not purport to prevent (nor could they under

16 the First Amendment prevent) the private use of the word “marriage” in the context of same-sex

17 relationships, and same-sex couples will of course use the word if they wish to. This has no

18 bearing on whether the State must give the title its imprimatur.

19

Finally, the right to privacy is not implicated here, as Plaintiffs desire not to be left alone,

20 but, on the contrary, desire to obtain public recognition of their relationships. In summary, no

21 fundamental rights are burdened by Nevada’s marriage–domestic partnership regime. Because

22 homosexuals are not a suspect or quasi-suspect class, and because the laws at issue burden no

23 fundamental rights, rational basis scrutiny applies.

24 ///

25 ///

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1

3. Application of Rational Basis Scrutiny

2

Under rational basis review, a court does not judge the perceived wisdom or fairness of a

3 law, nor does it examine the actual rationale for the law when adopted, but asks only whether

4 “there is any reasonably conceivable state of facts that could provide a rational basis for the

5 classification.” Heller, 509 U.S. at 319–20 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S.

6 307, 313 (1993)). Those challenging a law on rational basis grounds “have the burden to

7 negat[e] every conceivable basis which might support it.” Diaz v. Brewer, 676 F.3d 823, 826 (9th

8 Cir. 2012) (O’Scannlain, J., dissenting from order denying rehearing en banc) (quoting Beach

9 Commc’ns, 508 U.S. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356,

10 364 (1973))) (alteration in Diaz; internal quotation marks omitted)). The question of rationality

11 is a matter of law for which a state need not provide evidence but may rely on speculation alone.

12 Heller, 509 U.S. at 320. In the summary judgment context, if the facts determining a question

13 that is subject only to rational basis review are “at least debatable,” the state is entitled to

14 summary judgment. See Jackson, 2012 WL 3255201, at *33 (citing Vance v. Bradley, 440 U.S.

15 93, 110–11 (1979); Lupert v. Cal. State Bar, 761 F.2d 1325, 1328 (1985)).

16

The protection of the traditional institution of marriage, which is a conceivable basis for

17 the distinction drawn in this case, is a legitimate state interest. Although traditional moral

18 disapproval is not alone a valid state interest for prohibiting private, consensual activity, see

19 Lawrence, 539 U.S. at 577–78 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)), civil

20 marriage is at least partially a public activity, and preventing “abuse of an institution the law

21 protects” is a valid state interest, see id. at 567. More specifically:

22

That [the Texas anti-sodomy law] as applied to private, consensual conduct

is unconstitutional under the Equal Protection Clause does not mean that other laws

23

distinguishing between heterosexuals and homosexuals would similarly fail under

rational basis review. Texas cannot assert any legitimate state interest here, such as

24

national security or preserving the traditional institution of marriage. Unlike the

moral disapproval of same-sex relations—the asserted state interest in this

25

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1

case—other reasons exist to promote the institution of marriage beyond mere moral

disapproval of an excluded group.

2

Id. at 585 (O’Connor, J., concurring in the judgment) (emphases added). The Lawrence Court

3

appears to have strongly implied that in an appropriate case, such as the present one, the

4

preservation of the traditional institution of marriage should be considered a legitimate state

5

interest rationally related to prohibiting same-sex marriage. See id. at 578 (majority opinion)

6

(“The present case does not involve . . . whether the government must give formal recognition to

7

any relationship that homosexual persons seek to enter.”). The State of Nevada has made

8

available to same-sex partners the vast majority of the civil rights and responsibilities of

9

marriage, and it has made all of the fundamental rights comprising the “right to marry” available

10

via the domestic partnership laws, even assuming for the sake of argument that it is the “right to

11

marry” or the “right to marry a person of one’s choice,” and not the “right to marry a person of

12

the same sex” that is at issue. The State has not crossed the constitutional line by maintaining

13

minor differences in civil rights and responsibilities that are not themselves fundamental rights

14

comprising the constitutional component of the right to marriage, or by reserving the label of

15

“marriage” for one-man–one-woman couples in a culturally and historically accurate way. And

16

unlike in Perry, the State of Nevada has not stripped away any existing right to the title of

17

“marriage” while leaving its constitutional incidents in place. See Perry, 671 F.3d at 1076–78.

18

As Justice O’Connor noted in concurrence in Lawrence, there are additional reasons to

19

promote the traditional institution of marriage apart from mere moral disapproval of homosexual

20

behavior, and these reasons provide a rational basis for distinguishing between opposite-sex and

21

same-sex couples in the context of civil marriage. Human beings are created through the

22

conjugation of one man and one woman. The percentage of human beings conceived through

23

non-traditional methods is minuscule, and adoption, the form of child-rearing in which same-sex

24

couples may typically participate together, is not an alternative means of creating children, but

25

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1 rather a social backstop for when traditional biological families fail. The perpetuation of the
2 human race depends upon traditional procreation between men and women. The institution
3 developed in our society, its predecessor societies, and by nearly all societies on Earth throughout
4 history to solidify, standardize, and legalize the relationship between a man, a woman, and their
5 offspring, is civil marriage between one man and one woman. See Maynard v. Hill, 125 U.S. 190,
6 211 (1888) (“It is an institution, in the maintenance of which in its purity the public is deeply
7 interested, for it is the foundation of the family and of society, without which there would be
8 neither civilization nor progress.”).6 Should that institution be expanded to include same-sex
9 couples with the state’s imprimatur, it is conceivable that a meaningful percentage of
10 heterosexual persons would cease to value the civil institution as highly as they previously had
11 and hence enter into it less frequently, opting for purely private ceremonies, if any, whether
12 religious or secular, but in any case without civil sanction, because they no longer wish to be
13 associated with the civil institution as redefined,7 leading to an increased percentage of out-of-
14 6 Plaintiffs’ historical and sociological experts attest that marriage has changed in various
15 ways throughout history, that homosexuality is no longer considered a “disorder” by mainstream psychiatrists and sociologists, that same-sex couples can be suitable parents, that same-sex
16 marriage would not harm traditional marriages, that there is and has been discrimination against homosexuals, that they lack political power, and even concerning the alleged economic impact of
17 the challenged laws, but even assuming the Court were to find all of these opinions credible—a finding the Court need not make in the rational basis context—none of Plaintiffs’ experts attest
18 that same sex marriage has ever been recognized in the history of the Anglo-American peoples except very recently and sporadically. (See generally Cott. Decl., Sept. 4, 2012, ECF No. 86-2, at
19 3; Peplau Decl., Aug. 20, 2012, ECF No. 86-2, at 45; Badgett Decl., Spet. 7, 2012, ECF No. 86-
20 2, at 92; Chauncey Decl., June 27, 2012, ECF No. 86-2, at 132; Segura Decl., Sept. 5, 2012, ECF No. 86-3, at 3; Lamb Decl., Aug. 27, 2012, ECF No. 86-3, at 57). The level of scrutiny is
21 controlled by precedent in this case. Because that level of scrutiny is rational basis scrutiny, the Court need not examine the parties’ evidence (which evidence is, in any case, better
22 characterized as dueling collections of sociological opinions as opposed to scientific or other specialized evidence). The State need only have a conceivable basis for its laws.
23 7 Some commentators have argued that the fact that same-sex couples may marry takes
24 nothing from the value of an opposite-sex couple’s marriage. See, e.g., Michael Mello, For Today, I’m Gay: The Unfinished Battle for Same-Sex Marriage in Vermont, 25 Vt. L. Rev. 149,
25 229 (2000). Traditional spouses will have lost no rights, after all. But the legal question under
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1 wedlock children, single-parent families, difficulties in property disputes after the dissolution of

2 what amount to common law marriages in a state where such marriages are not recognized, or

3 other unforeseen consequences. See Jackson, 2012 WL 3255201, at *39–41. Because the family

4 is the basic societal unit, the State could have validly reasoned that the consequences of altering

5 the traditional definition of civil marriage could be severe. See id. at *44 (“[I]t is not beyond

6 rational speculation to conclude that fundamentally altering the definition of marriage to include

7 same-sex unions might result in undermining the societal understanding of the link between

8 marriage, procreation, and family structure.”). The Court finds Judge Kay’s conclusions

9 concerning the rational bases for Hawaii’s marriage–civil union regime equally persuasive as

10 applied to Nevada’s marriage–domestic partnership regime. See id. at *38–45.

11

Although a nontrivial argument can be made that the nature of marriage as a

12 philosophical matter is any exclusive romantic relationship between any two (or more) persons,

13 or some other such definition, and that the condition that the partners in a marriage must be one

14 man and one woman is only a special case no matter how historically consistent, the State of

15 Nevada need not eschew tradition in the name of philosophical purity, not in the context of

16 rational basis review, anyway, and certainly not where the philosophical issue is itself

17 controversial. The legal question is not whether Plaintiffs have any conceivable rational

18

19 rational basis review is not whether spouses or prospective spouses have good reasons (in a
20 court’s reckoning) for believing that their marriages will be harmed by the inclusion of same-sex couples in the institution of civil marriage. The question is whether the State has any
21 conceivable basis, even speculatively, to believe that spouses or prospective spouses might feel this way, for whatever reason, and that their reaction to the redefinition of civil marriage to
22 include same-sex couples might have detrimental societal effects. See Jackson, 2012 WL 3255201, at *44. One might argue by analogy that the expected reaction of bigots would be an
23 insufficient reason for a state to refuse to implement policies of racial equality, but the analogy
would be flawed, because race-based distinctions command strict scrutiny under the Equal 24 Protection Clause, whereas sexual-orientation-based restrictions command only rational basis
scrutiny. 25

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1 philosophical argument concerning the nature of marriage. They do.8 The legal question is

2 whether the State of Nevada has any conceivable rational basis for the distinction it has drawn. It

3 does, and the laws at issue in this case therefore survive rational basis review under the Equal 4 Protection Clause.9

5

Plaintiffs also argue that because the State has provided for domestic partnerships with

6 most of the same rights and responsibilities that accompany civil marriage, the State has

7 necessarily abandoned any possible basis for withholding the title of “marriage” apart from the

8 sole and improper purpose of stigmatizing Plaintiffs. But the Court finds that there are rational

9 bases for withholding the title of marriage. See supra. The conceivable benefits to society from

10 maintaining a distinction between traditional marriage and same-sex domestic partnerships

11 provide a rational basis for the State of Nevada to maintain the distinction, even if one result of

12 the distinction is the stigmatization of same-sex relationships or if bias was one motivating

13 factor. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (citing Cleburne, 473

14 U.S. at 448) (noting that even where animus is a motivating factor, a law survives rational basis

15 review where there is also a conceivable legitimate purpose behind it). Preserving the traditional

16 institution of marriage is different from the mere moral disapproval of a disfavored group,

17 8If the State were to adopt a “genderless marriage” regime, it would almost certainly
18 withstand a putative equal protection attack by opposite-sex spouses arguing that the state had no
rational basis for implementing genderless marriage because of some perceived reduction in the 19 prestige of their traditional marriages, i.e., a putative “reverse stigma” argument. Where both
sides of an issue have fair arguments, the State may choose between them without risking an 20 equal protection violation under rational basis review.

21

9 As to a putative due process challenge, which Plaintiffs do not bring, unlike laws against

homosexual activity per se, which were not prevalent in the United States until the late

22 Nineteenth Century and therefore have no “ancient roots,” see Lawrence, 539 U.S. at 568–70, the prohibition against same-sex civil marriage has been nearly ubiquitous since antiquity, see, e.g.,

23 Andersen v. King Cnty., 138 P.3d 963, 976–77 (Wash. 2006) (en banc) (collecting cases). Until

very recently, it has been utterly unknown to the history or traditions of this Nation, and it is still

24 unknown in the vast majority of American jurisdictions, as well as in the vast majority of

international jurisdictions. Unlike private, consensual, homosexual activity, therefore, same-sex

25 civil marriage is not a fundamental right.

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1 Massachusetts v. HHS, 682 F.3d 1, 16 (1st Cir. 2012), and the positive benefits of preserving the

2 distinction need only be conceivable for the state’s laws to stand. Plaintiffs argue that preserving

3 the traditional institution of marriage as between one man and one woman necessarily excludes

4 same-sex couples, based at least in part upon a normative bias. But this is permitted so long as

5 preserving the traditional institution of marriage is a legitimate state interest in-and-of-itself and

6 any attendant bias is based upon a distinction subject only to rational basis review. See Cleburne,

7 473 U.S. at 448.

8

Plaintiffs’ argument that Nevada’s creation of a parallel but differently titled civil

9 institution for same-sex relationships necessarily renders the State’s pre-existing prohibition

10 against same-sex marriages invalid, if accepted, would permit a plaintiff to show an equal

11 protection violation by the very fact that a state had recently increased his rights in relevant

12 respects, which is not the law. Cf. Jackson, 2012 WL 3255201, at *37 (noting that such a holding

13 would both discourage the states from experimenting with social change for fear of

14 constitutionalizing issues and would provide perverse incentives for the states to withhold

15 rights). Perhaps if there had previously been no such institution as civil marriage, and if the State

16 of Nevada had simultaneously, or nearly so, created both the institutions of civil marriage and

17 domestic partnership, excluding only same-sex couples from one but not the other, Plaintiffs’

18 stigmatization argument would carry more weight. In such a case, although same-sex partners’

19 rights would have been increased by the State in an absolute sense, their rights with respect to

20 other persons’ rights would have been simultaneously decreased, indicating a potential

21 constitutional harm. Here, the State of Nevada has only increased Plaintiffs’ rights and has not

22 simultaneously decreased them with respect to other persons’ rights. The traditional form of civil

23 marriage predates the State of Nevada by many centuries, having existed in the same form in the

24 relevant respect (one man and one woman) for millennia in Nevada’s predecessor societies. The

25 State of Nevada’s extension of the fundamental (and most of the civil) incidents of marriage to

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1 same-sex couples in recent years cannot reasonably be said to reflect anti-homosexual animosity

2 under these circumstances, but only benevolence. Perceiving a violative malevolence in the

3 expansion of rights alone is possible only if one presupposes that there is an additional right

4 being withheld, which reasoning is circular. Where a minority group’s rights have not been

5 decreased by a state’s acts either absolutely or in relation to other person’s rights, the proffered

6 additional right must stand on its own.

7

Furthermore, standing in this case cannot be based upon an allegation of harm consisting

8 of pure stigma, because the relief Plaintiffs seek cannot redress that measure of harm. See Lujan

9 v. Defenders of Wildlife, 504 U.S. 555, 568 (1992). Any stigma arising out of the State’s refusal

10 to recognize same-sex relationships as “marriages” simply cannot be removed by judicial decree.

11 In some cases, where the stigma complained of is entirely created by the state, as in the

12 hypothetical example given above, a judicial decree might remedy it. Here, however, one-

13 man–one-woman civil marriage is a longstanding institution not created by State of Nevada, and

14 the decision not to recognize same-sex marriages was adopted by the People through ballot

15 initiative. It is not plausible that the People of the State of Nevada will change their views on the

16 matter because of any judicial decree or proclamation by the State (voluntary or not) that

17 conflicts with their private beliefs concerning the nature of marriage. Nor can a judicial decree

18 cure the State’s own contribution to any stigma, because an act or statement made involuntarily is

19 not, and will be known both by Plaintiffs and the rest of the populace not to be, a genuine

20 reflection of the State’s viewpoint, which is, of course, simply the collection of the viewpoints of

21 its citizens. That is, the People will know—because they know their own opinions—that the

22 State of Nevada does not approve of same-sex marriages despite the fact that it has been forced

23 by judicial decree to act as if it does. This is not to say that Plaintiffs have no recourse, but they

24 must rely on more than pure stigma as the measure of harm. Plaintiffs must rely on a measure of

25

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1 harm that the Court can actually redress, i.e., the denial of equal treatment under the law itself.

2 The Court has addressed Plaintiffs’ claim in this regard under the relevant standards.

3

4. Romer v. Evans

4

There is an additional line of cases to consider when a state withdraws an existing right or

5 enacts sweeping, draconian changes in a minority group’s legal status, and the Court finds that

6 analysis under this line of cases is not precluded by Baker. In Romer, the Supreme Court ruled

7 that a law born of animosity for a discrete minority group that withdraws existing rights from the

8 group, or which effects a sweeping change in the legal status of the group, does not survive

9 rational basis review under the Equal Protection Clause. See 517 U.S. at 627 (“The amendment

10 withdraws from homosexuals, but no others, specific legal protection from the injuries caused by

11 discrimination, and it forbids reinstatement of these laws and policies”).10

12

Based upon Romer, the Court of Appeals recently struck down an amendment to the

13 California Constitution that had withdrawn an existing state law right to same-sex marriage while

14 leaving the constitutional incidents of marriage in place via the domestic partnership laws. See

15 Perry, 671 F.3d at 1076 (citing Romer, 517 U.S. at 634–35) (“Proposition 8 singles out same-sex

16 couples for unequal treatment by taking away from them alone the right to marry, and this action

17 amounts to a distinct constitutional violation because the Equal Protection Clause protects

18 minority groups from being targeted for the deprivation of an existing right without a legitimate

19 reason.”). The Perry court, however, explicitly declined to address whether the amendment

20 would have failed under the Fourteenth Amendment had there never been a right to same-sex

21

10The Perry Court struck down the amendment to the California Constitution enacted via

22 Proposition 8 because it believed Romer prevented the targeted withdrawal of any right whatsoever from a minority group, whereas the dissent believed Romer prevented only sweeping

23 changes in a minority group’s legal status. In other words, the dispositive disagreement in that

case concerned the meaning of Romer, which is somewhat cryptic as to its applicability beyond

24 the facts of that case itself. Although the Romer doctrine is still nascent and controversial, the

Court will for the sake of argument assume that either type of state action—withdrawal of an

25 existing right or a sweeping change in legal status—is infirm under Romer.

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1 marriage in California. See id. at 1064. The dispositive issue in Perry was that the State of

2 California had targeted a discrete group and withdrawn an existing right from its members. See

3 id. at 1076. The People of California had only withdrawn from same-sex couples the right to the

4 title of “marriage,” while leaving the constitutional incidents of marriage in place via a domestic

5 partnership regime. See id. at 1077–78 (“Proposition 8 did not affect [certain civil incidents of

6 marriage under California law] or any of the other constitutionally based incidents of marriage

7 guaranteed to same-sex couples and their families. In adopting the amendment, the People

8 simply took the designation of marriage away from lifelong same-sex partnerships, and with it

9 the State’s authorization of that official status . . . .” (citations and internal quotation marks

10 omitted)). The Court of Appeals ruled that the right to the title of marriage was concrete enough

11 to establish an injury (though not itself of constitutional dimension), and that the withdrawal of

12 the right to the title of marriage was therefore unconstitutional under Romer regardless of the

13 constitutional dimension of the right itself. See id. at 1096 (“By using their initiative power to

14 target a minority group and withdraw a right that it possessed, without a legitimate reason for

15 doing so, the People of California violated the Equal Protection Clause.”).

16

Because there has never been a right to same-sex marriage in Nevada, Romer and Perry

17 are inapplicable here as to NRS section 122.020. That section of the NRS removed no

18 preexisting right and effected no change whatsoever to the legal status of homosexuals when

19 adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65

20 (1861–1873).

21

It can be argued, however, that Section 21 removed an existing right for the purposes of a

22 Romer analysis. Section 21 did not remove any preexisting right to the formation of same-sex

23 marriage, but it did make it more difficult to change section 122.020 and other statutes through

24 the democratic process. Before the adoption of Section 21, the People of the State of Nevada

25 could have democratically altered section 122.020 via legislation to provide for same sex

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1 marriages. Section 21 removed their ability to do so. Although homosexuals have meaningful

2 political power, they would now have to convince their fellow citizens to amend the Nevada

3 Constitution to achieve the particular democratic goal of legalizing same-sex marriage in

4 Nevada, and it is more difficult to amend the Nevada Constitution than it is to amend the NRS.

5

The Romer Court does not, however, appear to have announced a general constitutional

6 principle that any state action making it more difficult for the People to achieve a particular goal

7 in aid of the rights of a discrete minority group through democratic processes is necessarily

8 infirm under the Equal Protection Clause. Such a rule would be so broad and dramatic as to be 9 unmistakable when announced.11 Rather, the Romer Court emphasized the insidious nature of

10 laws that impose general hardships, as contrasted with laws imposing only particular disabilities.

11 See 517 U.S. at 633 (“Respect for this principle explains why laws singling out a certain class of

12 citizens for disfavored legal status or general hardships are rare. A law declaring that in general

13 it shall be more difficult for one group of citizens than for all others to seek aid from the

14 government is itself a denial of equal protection of the laws in the most literal sense.” (emphases

15 added)). That is not to say that laws imposing particular disabilities are immune from equal

16 protection challenges, but it is to say that such challenges are governed by traditional equal

17 protection principles, not by Romer, which governs only the imposition of generalized

18 disabilities upon a disfavored group.

19

20
11Although, according to a separate line of cases not argued by the parties, an equal 21
protection violation may result from a law making it more difficult for members of a racial 22 minority group to protect themselves through democratic processes, such violations only occur in
the context of race. Hunter v. Erickson, 393 U.S. 385, 391–93 (1969); Coalition to Defend 23 Affirmative Action v. Regents of the Univ. of Mich., ---F.3d ----, 2012 WL 5519918, at *8 (6th
Cir. 2012). Also, the Hunter principal applies only when the racial classification appears on the 24 face of the challenged law. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 484–85 (1982).
Section 21 contains no facial distinction on the basis of sexual orientation, much less on the basis 25 of race.

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1

Where a legitimate state purpose is furthered by the challenged legislation, as here, it

2 survives an equal protection analysis at the rational basis level. There was no legitimate state

3 purpose behind the challenged law in Romer, because the sole conceivable purpose there was

4 anti-homosexual animus. See id. at 634–35. Colorado’s constitutional provision “prohibit[ed] all

5 legislative, executive or judicial action at any level of state or local government designed to

6 protect the named class,” id. at 624, effected a “[s]weeping and comprehensive . . . change in

7 legal status,” id. at 627, and was “inexplicable by anything but animus toward the class it

8 affect[ed],” id. at 632. Section 21, by contrast, imposes a single, particularized disability, not a

9 broad, sweeping change in legal status, and it was not passed without any legitimate purpose.

10 Romer was an extreme case concerning a novel and ambitious type of law—a law that identified

11 a minority group and declared that no organ of the State of Colorado should dare attempt to

12 protect the group under the law. That kind of law is prevalent only under totalitarian regimes,

13 and the Romer Court noted that it was totally outside of American constitutional traditions to

14 enact such laws. See id. at 633. Section 21 is not in the character of the constitutional provision

15 struck down in Romer. It does not purport to remove any of the many protections already in

16 place in the State of Nevada prohibiting discrimination on the basis of sexual orientation or to

17 prevent the adoption of additional protections. It prevents only the amendment of state statutes

18 to provide for same-sex marriage—a targeted discrimination, to be sure, but one based upon a

19 distinction subject only to rational basis review, based at least in part upon a legitimate state

20 interest, i.e., the protection of the traditional institution of marriage, and not based purely upon

21 anti-homosexual animus, as the constitutional provision in Romer was. Section 21 therefore

22 survives Romer review.

23

Because the maintenance of the traditional institution of civil marriage as between one

24 man and one woman is a legitimate state interest, because the exclusion of same-sex couples

25 from the institution of civil marriage is rationally related to furthering that interest, and because

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1 the challenged laws neither withdraw any existing rights nor effect a broad change in the legal 2 status or protections of homosexuals based upon pure animus, the State is entitled to summary 3 judgment. As to those Plaintiffs validly married in other jurisdictions whose marriages the State 4 of Nevada refuses to recognize, the protection of Nevada’s public policy is a valid reason for the 5 State’s refusal to credit the judgment of another state, lest other states be able to dictate the 6 public policy of Nevada. See Nevada v. Hall, 440 U.S. 410, 423–24 (1979) (“Full Faith and 7 Credit does not . . . enable one state to legislate for the other or to project its laws across state 8 lines so as to preclude the other from prescribing for itself the legal consequences of acts within 9 it.” (quoting Pac. Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493, 504–05 (1939))). 10 /// 11 /// 12 //// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 ///
Page 40 of 41

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1

CONCLUSION

2

IT IS HEREBY ORDERED that the Motions to Dismiss (ECF Nos. 32, 33) are

3 GRANTED IN PART and DENIED IN PART. The Complaint is dismissed as precluded by

4 Baker v. Nelson with respect to the traditional equal protection challenge, but the Complaint is

5 not dismissed with respect to the challenge under Romer v. Evans.

6

IT IS FURTHER ORDERED that the Motions for Summary Judgment (ECF Nos. 72, 74,

7 85) are GRANTED.

8

IT IS FURTHER ORDERED that the Motion for Summary Judgment (ECF No. 86) is

9 DENIED.

10

IT IS FURTHER ORDERED that the Motion for Leave to File Reply (ECF No. 100) is

11 DENIED. No party has been permitted to file a reply. The arguments have been

12 comprehensively presented, and no reply is necessary to preserve the relevant issues on appeal.

13

IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

14

IT IS SO ORDERED.

15 DATED: This 26th day of November, 2012.

16

17

_____________________________________

ROBERT C. JONES

18

United States District Judge

19

20

21

22

23

24

25

Page 41 of 41

 
 Case 2:12-cv-00578-RCJ -PAL Document 1 Filed 04/10/12 Page 1 of 30

1 JON W. DAVIDSON

TARA L. BORELLI 2 PETER C. RENN

3 SHELBI DAY (above counsel will comply with LR IA 10-2 within 10 days)

4 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

3325 Wilshire Boulevard, Suite 1300

5 Los Angeles, California 90010

6

Email: jdavidson@lambdalegal.org tborelli@lambdalegal.org

7

prenn@lambdalegal.org

sday@lambdalegal.org

8 Tel: 213.382.7600 | Fax: 213.351.6050

9 CARLA CHRISTOFFERSON

10

DAWN SESTITO MELANIE CRISTOL

11 RAHI AZIZI (above counsel will comply with LR IA 10-2 within 10 days)

12 O’MELVENY & MYERS LLP

400 South Hope Street 13 Los Angeles, California 90071

14

Email: cchristofferson@omm.com dsestito@omm.com

15

mcristol@omm.com

razizi@omm.com

16 Tel: 213.430.6000 | Fax: 213.430.6407

17 KELLY H. DOVE (Nevada Bar No. 10569)

18

MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP

19 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169

20 Email: kdove@swlaw.com

mbute@swlaw.com

21 Tel: 702.784.5200 | Fax: 702.784.5252

22 Attorneys for Plaintiffs

23

UNITED STATES DISTRICT COURT

24

DISTRICT OF NEVADA

25 BEVERLY SEVCIK and MARY
26 BARANOVICH; ANTIOCO CARRILLO and THEODORE SMALL; KAREN
27 GOODY and KAREN VIBE; FLETCHER
WHITWELL and GREG FLAMER; 28 MIKYLA MILLER and KATRINA

No. ________________________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:12-cv-00578-RCJ -PAL Document 1 Filed 04/10/12 Page 2 of 30

1 MILLER; ADELE TERRANOVA and

TARA NEWBERRY; CAREN 2 CAFFERATA-JENKINS and FARRELL

3 CAFFERATA-JENKINS; and MEGAN LANZ and SARA GEIGER,

4 Plaintiffs,

5 v.

6 BRIAN SANDOVAL, in his official capacity

7 as Governor of the State of Nevada; DIANA

ALBA, in her official capacity as Clerk for 8 Clark County; AMY HARVEY, in her

9

official capacity as Clerk for Washoe County; and ALAN GLOVER, in his official

10 capacity as Clerk-Recorder for Carson City,

11

Defendants

12

13

Plaintiffs Beverly Sevcik and Mary Baranovich; Antioco Carrillo and Theodore Small;

14 Karen Goody and Karen Vibe; Fletcher Whitwell and Greg Flamer; Mikyla Miller and Katrina

15 Miller; Adele Terranova and Tara Newberry; Caren Cafferata-Jenkins and Farrell Cafferata-

16 Jenkins; Megan Lanz and Sara Geiger, by and through their attorneys, file this Complaint against

17 Defendants, Brian Sandoval, Diana Alba, Amy Harvey, and Alan Glover, and allege as follows:

18

INTRODUCTION

19

1. Plaintiffs are eight loving, committed same-sex couples. They bring this action,

20 pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief for the violation of their

21 rights under the Fourteenth Amendment to the United States Constitution caused by their being

22 denied the right to marry in the State of Nevada (the “State”). The State has instead relegated

23 these couples to the inferior and novel status of registered domestic partnerships, and has

24 disrespected the marriages some of them have entered in other jurisdictions, because they are

25 lesbians and gay men in same-sex relationships.

26

2. Civil marriage plays a unique role in society as the universally recognized and

27 celebrated hallmark of a couple’s commitment to build family life together. Plaintiffs have

28 formed committed, enduring family bonds equally worthy of the respect afforded by the State to

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1 different-sex couples through access to the status of marriage. Yet the State, without any

2 adequate justification, has deprived lesbian and gay Nevadans of the right to marry, or to have

3 their valid marriages from other jurisdictions recognized as marriages, based solely on their

4 sexual orientation and sex. This discrimination (referred to herein as the State’s “marriage ban”)

5 is enshrined both in Nevada statutes, and in article 1, section 21 of the Nevada Constitution,

6 which limits marriage solely to couples composed of “a male and female.”

7

3. After barring lesbians and gay men from civil marriage, the State created an

8 alternative status that they are allowed to enter that, with only a few exceptions, provides “the

9 same rights, protections and benefits” and “the same responsibilities, obligations and duties . . . as

10 are granted to and imposed upon spouses.” Nev. Rev. Stat. § 122A.200(1)(a). The State’s

11 selective bar to access to marriage—despite a public policy recognizing that same-sex couples

12 merit the same family, parenting, and relationship rights and responsibilities as different-sex

13 spouses—serves no purpose other than to impose a stigmatizing government label of inferiority

14 upon lesbians and gay men and their relationships and denies Plaintiffs equal treatment based on

15 their sexual orientation and sex.

16

4. This exclusion from marriage and relegation to a second-class status inflicts

17 serious and irreparable harms upon Plaintiffs and other same-sex couples and their children.

18 Plaintiffs seek equal access to the institution of marriage as the only means to fully eliminate the

19 myriad harms inflicted by the State on them and other same-sex couples.

20

PARTIES

21

A. Plaintiffs

22

5. Plaintiffs Beverly Sevcik and Mary Baranovich are lesbian individuals who are a

23 committed same-sex couple residing in Carson City, Nevada.

24

6. Plaintiffs Antioco Carrillo and Theodore Small are gay male individuals who are a

25 committed same-sex couple residing in Las Vegas, Nevada.

26

7. Plaintiffs Karen Goody and Karen Vibe are lesbian individuals who are a

27 committed same-sex couple residing in Reno, Nevada.

28

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1

8. Plaintiffs Fletcher Whitwell and Greg Flamer are gay male individuals who are a

2 committed same-sex couple residing in Las Vegas, Nevada.

3

9. Plaintiffs Mikyla Miller and Katrina Miller are lesbian individuals who are a

4 committed same-sex couple residing in Reno, Nevada.

5

10. Plaintiffs Adele Terranova and Tara Newberry are lesbian individuals who are a

6 committed same-sex couple residing in Las Vegas, Nevada.

7

11. Plaintiffs Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins (full name, Janet

8 Farrell Cafferata-Jenkins) are lesbian individuals who are a committed same-sex couple residing

9 in Carson City, Nevada.

10

12. Plaintiffs Megan Lanz and Sara Geiger are lesbian individuals who are a

11 committed same-sex couple residing in Las Vegas, Nevada.

12

B. Defendants

13

13. Defendant Brian Sandoval is sued in his official capacity as Governor of the State

14 of Nevada. As decreed by article 5, sections 1 and 7 of the Nevada Constitution, Governor

15 Sandoval is vested with the executive power of the State and has the duty to see that the State’s

16 laws are faithfully executed, including the state’s marriage ban. Governor Sandoval is a person

17 within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times

18 relevant to this complaint.

19

14. Diana Alba is sued in her official capacity as the County Clerk and Commissioner

20 of Civil Marriages for Clark County, Nevada. Ms. Alba’s duties include issuing marriage

21 licenses, solemnizing marriages, certifying other persons who may solemnize a marriage in the

22 county, and maintaining records relating to marriage licenses. Ms. Alba must ensure compliance

23 through all of these functions with relevant Nevada laws, including those that exclude same-sex

24 couples from marriage. Ms. Alba is a person within the meaning of 42 U.S.C. § 1983 and was

25 acting under color of state law at all times relevant to this complaint.

26

15. Amy Harvey is sued in her official capacity as the County Clerk and

27 Commissioner of Civil Marriages for Washoe County, Nevada. Ms. Harvey’s duties include

28 issuing marriage licenses, solemnizing marriages, certifying other persons who may solemnize a

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1 marriage in the county, and maintaining records relating to marriage licenses. Ms. Harvey must

2 ensure compliance through all of these functions with relevant Nevada laws, including those that

3 exclude same-sex couples from marriage. Ms. Harvey is a person within the meaning of 42

4 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.

5

16. Alan Glover is sued in his official capacity as the Clerk-Recorder for Carson City,

6 Nevada. As the Clerk-Recorder, Mr. Glover oversees the operations of the city’s Marriage

7 Bureau and his duties include issuing marriage licenses, certifying other persons who may

8 solemnize a marriage in the city, and maintaining records relating to marriage licenses. Mr.

9 Glover must ensure compliance through all of these functions with relevant Nevada laws,

10 including those that exclude same-sex couples from marriage. Mr. Glover is a person within the

11 meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this

12 complaint.

13

17. Each of the Defendants, and those subject to their supervision, direction, and

14 control, intentionally performed, participated in, aided and/or abetted in some manner the acts

15 alleged herein, proximately caused the harm alleged herein, and will continue to injure Plaintiffs

16 irreparably if not enjoined.

17

JURISDICTION AND VENUE

18

18. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the

19 deprivation under color of state law of rights secured by the United States Constitution.

20

19. This Court has original jurisdiction over the subject matter of this action pursuant

21 to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution

22 and laws of the United States.

23

20. Venue is proper in this Court under 28 U.S.C. § 1391(b) because all Defendants

24 reside within the District and State of Nevada, and a substantial part of the events that gave rise to

25 Plaintiffs’ claims took place within the District of Nevada.

26

21. This Court has the authority to enter a declaratory judgment and to provide

27 preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of

28 Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.

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1

22. This Court has personal jurisdiction over Defendants because they are domiciled in

2 the State.

3

STATEMENT OF FACTS

4

23. Plaintiffs are residents of Nevada who experience the same joys and shoulder the

5 same challenges of family life as their heterosexual neighbors, co-workers, and other community

6 members who freely may marry. Plaintiffs are productive, contributing citizens who support their

7 families and nurture their children, but must do so without the same dignity and respect afforded

8 by the State to other families through access to the universally celebrated status of marriage.

9 Instead, Plaintiffs are consigned to registered domestic partnership, which lacks the same

10 reputation, standing in the community, and traditions and prestige as marriage. The State’s

11 exclusion of Plaintiffs from marriage, relegating them to the second-class status of registered

12 domestic partnership, subjects Plaintiffs to legal vulnerability and related stress, while depriving

13 them and their children of equal dignity and security. Through its constitutional and statutory

14 marriage bans, and its relegation of same-sex couples to the lesser registered domestic partnership

15 status, the State sends a purposeful message that the State views lesbians and gay men and their

16 children as second-class citizens who are undeserving of the legal sanction, respect, and support

17 that different-sex spouses and their families enjoy.

18

A. Plaintiffs’ Attempts to Marry and Marriages in Other Jurisdictions.

19

24. But for the fact that they are of the same-sex, each unmarried Plaintiff couple is

20 legally qualified to marry under the laws of Nevada and wishes to marry in the State. Each

21 Plaintiff is over the requisite age of 18, no Plaintiff is precluded from marriage as a result of being

22 closely related to his or her life partner, and no Plaintiff is recognized by the State as having

23 another spouse. Nev. Rev. Stat. § 122.020(1).

24

25. On April 3, 2012, Beverly Sevcik and Mary Baranovich appeared in person at the

25 Carson City Marriage Bureau in Carson City, Nevada to seek a marriage license. They both were

26 prepared to present valid forms of identification to prove their names and ages, pay the required

27 $75 fee, and complete a marriage application. When the couple requested a marriage license, the

28 employee working behind the counter stated “You have to go to the Secretary of State’s office to

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1 register as domestic partners, we don’t do that here.” When Beverly clarified that they had

2 already registered as domestic partners in Nevada and wanted to get a marriage license, the

3 employee refused their request. Beverly and Mary accordingly were denied the opportunity to

4 obtain a marriage license by an employee of Defendant Glover based solely on Nevada’s

5 prohibition on marriage for same-sex couples and Plaintiffs’ respective sex and sexual

6 orientation.

7

26. On April 6, 2012, Antioco Carrillo and Theodore Small (“Theo”) appeared in

8 person at the Marriage Bureau for the Office of the Clerk for Clark County in Las Vegas, Nevada

9 to seek a marriage license. They both were prepared to present valid forms of identification to

10 prove their names and ages, pay the required $60 fee, and complete a marriage application. As

11 they approached the counter to apply for a marriage license they saw a sign indicating that

12 applicants must be a “bride and groom only.” Antioco and Theodore asked an agent or employee

13 of Defendant Alba for a marriage license application, and she responded that the couple would

14 have to contact the Secretary of State to register as domestic partners. When Antioco and Theo

15 indicated that they had already registered as domestic partners and wished to marry, she said they

16 could not because the state does not issue marriage licenses for same-sex couples. Defendant

17 Alba’s agent or employee denied the couple’s request for a marriage license, based solely on

18 Nevada’s prohibition on marriage for same-sex couples and Plaintiffs’ respective sex and sexual

19 orientation.

20

27. On April 1, 2012, Karen Goody (“Karen G.”) and Karen Vibe (“Karen V.”)

21 appeared in person at the Washoe County Marriage Bureau in Reno, Nevada to seek a marriage

22 license. They both were prepared to present valid forms of identification to prove their names

23 and ages, pay the required $60 fee, and complete a marriage application. They were barred,

24 however, from even going through security to enter the Marriage Bureau. When they entered the

25 building a security officer asked about the purpose of their visit, and the couple said that they

26 wanted to apply for a marriage license for the two of them to marry one another. The security

27 officer then asked them “Do you have a man with you?” When Karen V. said no and explained

28 that she and Karen G. wished to obtain a marriage license, the security guard told them that they

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1 could not. Karen V. asked if they could at least fill out the marriage license application, and an

2 employee of Defendant Harvey who was standing behind the Marriage Bureau counter responded

3 “Two women can’t apply.” The security officer added that it has to “be between a man and a

4 woman.” The employee behind the counter then indicated that the couple’s option was to “apply

5 for a civil partnership with the Secretary of State.” Karen G. and Karen V. accordingly were

6 denied the opportunity to obtain a marriage license by an employee of Defendant Harvey based

7 solely on Nevada’s prohibition on marriage for same-sex couples and Plaintiffs’ respective sex

8 and sexual orientation.

9

28. On April 4, 2012, Fletcher Whitwell and Greg Flamer appeared in person at the

10 Marriage Bureau for the Office of the Clerk for Clark County in Las Vegas, Nevada to seek a

11 marriage license. They both were prepared to present valid forms of identification to prove their

12 names and ages, pay the required $60 fee, and complete a marriage application. When the couple

13 took their application for a marriage license to the clerk, who is an agent or employee of

14 Defendant Alba, they were directed to the Secretary of State’s website to register as domestic

15 partners. When Greg clarified that they were there to get a marriage license, the clerk denied

16 their request, based solely on Nevada’s prohibition on marriage for same-sex couples and

17 Plaintiffs’ respective sex and sexual orientation.

18

29. Mikyla Miller and Katrina Miller were validly married in another jurisdiction and

19 seek through this suit to end the State’s current denial of recognition of their marriage on the

20 ground that it is a marriage entered by two individuals of the same sex.

21

30. Adele Terranova and Tara Newberry were validly married in another jurisdiction

22 and seek through this suit to end the State’s current denial of recognition of their marriage on the

23 ground that it is a marriage entered by two individuals of the same sex.

24

31. Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins were validly married in

25 another jurisdiction and seek through this suit to end the State’s current denial of recognition of

26 their marriage on the ground that it is a marriage entered by two individuals of the same sex.

27

28

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1

32. Megan Lanz and Sara Geiger were validly married in another jurisdiction and seek

2 through this suit to end the State’s current denial of recognition of their marriage on the ground

3 that it is a marriage entered by two individuals of the same sex.

4

B. Nevada’s Exclusion of Same-Sex Couples from Marriage and Consignment of

Same-Sex Couples to an Inferior Registered Domestic Partnership Status. 5

6

33. Nevada Revised Statutes § 122.020(1) restricts marriage to a male and a female

7 couple.

8

34. In 2000, a group called the Coalition for the Protection of Marriage collected the

9 number of signatures required to place a proposed amendment to Nevada’s Constitution on the

10 general election ballot that year. The proposed amendment provided that “Only a marriage

11 between a male and female person shall be recognized and given effect in this state.” The voters

12 approved the measure biennially (during the 2000 and 2002 general elections), as required to

13 amend the state constitution, pursuant to Nev. Const. art. 1, § 21.

14

35. Many of the campaign messages used to persuade voters to amend the constitution

15 relied on false, stigmatizing messages that same-sex couples are inferior to different-sex couples,

16 and that both the institution of marriage and children need to be protected from same-sex couples.

17 One 2002 flyer, for example, urged voters to adopt the constitutional amendment by saying “Let’s

18 not experiment with Nevada’s children.” Other campaign material falsely suggested that

19 allowing same-sex couples to marry would lead to schools teaching “explicit homosexual sex

20 acts” and “promot[ing] homosexuality.”

21

36. In 2009, the Nevada state legislature enacted a law entitled the “Nevada Domestic

22 Partnership Act” to allow eligible same-sex and different-sex couples who have “chosen to share

23 one another’s lives in an intimate and committed relationship of mutual caring” to register with

24 the state as domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010 et seq. Couples are

25 eligible to register if they share a common residence, are not married or in a domestic partnership

26 with a different person, are not related by blood in a way that would prevent them from being

27 married to each other in the State, are at least 18 years of age, and are competent to consent to the

28 domestic partnership. Nev. Rev. Stat. § 122A.100. The law took effect on October 1, 2009.

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1

37. Pursuant to Nevada Revised Statutes § 122A.200(1)(a), and with only a few

2 exceptions described below, registered domestic partners “have the same rights, protections and

3 benefits, and are subject to the same responsibilities, obligations and duties under law, whether

4 derived from statutes, administrative regulations, court rules, government policies, common law

5 or any other provisions or sources of law, as are granted to and imposed upon spouses.” That

6 statute also provides that former domestic partners “have the same rights, protections and

7 benefits, and are subject to the same responsibilities, obligations and duties under law, whether

8 derived from statutes, administrative regulations, court rules, government policies, common law

9 or any other provisions or sources of law, as are granted to and imposed upon former spouses,”

10 and that a surviving domestic partner “has the same rights, protections and benefits, and is subject

11 to the same responsibilities, obligations and duties under law, whether derived from statutes,

12 administrative regulations, court rules, government policies, common law or any other provisions

13 or sources of law, as are granted to and imposed upon a widow or a widower.” Registered

14 domestic partners enjoy rights and responsibilities related to, for example, pre-marital

15 agreements, Nev. Rev. Stat. § 123A.010 et seq.; postnuptial agreements, Nev. Rev. Stat. §

16 123.070 et seq.; community property and community debt, Nev. Rev. Stat. § 123.220 et seq.;

17 dissolution of the relationship in family court, Nev. Rev. Stat. § 125.010 et seq.; and spousal

18 support, Nev. Rev. Stat. § 125.150 et seq.

19

38. The law expressly provides that the rights and responsibilities of registered

20 domestic partners “with respect to a child of either of them are the same as those of spouses.”

21 Nev. Rev. Stat. § 122A.200(1)(d). The State thus treats same-sex couples who are registered

22 domestic partners as equal to different-sex spouses for the full spectrum of parenting obligations

23 and protections. For example, as is true for different-sex spouses, both members of a registered

24 domestic partnership are presumed parents of a child born to a domestic partner during the

25 domestic partnership, Nev. Rev. Stat. § 126.051. The State also treats registered domestic

26 partners in the same manner as spouses with respect to allocation of child custody and visitation,

27 Nev. Rev. Stat. § 125.450 et seq. and Nev. Rev. Stat. § 125C.010 et seq.; child support, Nev. Rev.

28

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1 Stat. § 125B.020 et seq.; and access to joint and step-parent adoption, Nev. Rev. Stat. § 127.010

2 et seq.

3

39. Although registered domestic partnership and civil marriage entail substantially

4 similar rights and responsibilities, notable differences remain between the two statuses. Because

5 of these differences, coupled with the stigma of exclusion and of being branded by government as

6 inferior, same-sex couples and their children suffer both tangible and dignitary harms, all of

7 which are of constitutional dimension.

8

40. The status of marriage has unique social significance and recognition. Without

9 access to the familiar language and legal label of marriage, Plaintiffs are unable instantly or

10 adequately to communicate to others the depth and permanence of their commitment, or to obtain

11 respect for that commitment as others do simply by invoking their married status.

12

41. Plaintiffs’ exclusion from marriage frustrates their life goals and dreams, their

13 personal happiness, and their self-determination. For example, Plaintiffs Antioco Carrillo and

14 Theo Small have family and friends eagerly awaiting the day that they can attend the couple’s

15 wedding. Antioco’s family sees marriage as the honorable way to respect one’s life partner and

16 the couple’s intentions for the future. He is disheartened that the law bars him from the state-

17 sanctioned ceremony and ritual that means so much to his loved ones. As Plaintiff Beverly

18 Sevcik said of her life partner Mary Baranovich, “We’ve been together for almost 41 years.

19 We’ve seen each other through thick and thin, in sickness and in health. After four decades of

20 sharing a life together, all we want is to commemorate our love for each other in the same way as

21 other couples, through marriage.”

22

42. The substantive and dignitary inequities imposed on committed same-sex couples

23 include particular harms for same-sex couples’ children, who are equally deserving of the

24 stability, permanence, and legitimacy that children of different-sex spouses enjoy. Civil marriage

25 affords official sanctuary to the family unit, offering parents and children a familiar and public

26 means of demonstrating to third parties a legal basis for the parent-child relationship. By denying

27 same-sex couples marriage, the State reinforces the view held by some that the family bonds that

28 tie same-sex parents and their children are less consequential, enduring, and meaningful than

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1 those of different-sex parents and their children. Same-sex parents and their children thus are

2 deprived of the family security that inheres in a ready and familiar method of communicating to

3 others the significance and permanence of their familial relationships. Same-sex couples and

4 their children accordingly must live with the vulnerability and stress inflicted by the ever-present

5 possibility that others may question their familial relationship—in social, educational, and

6 medical settings and in moments of crisis—in a way that spouses can avoid by simple reference

7 to being married.

8

43. Children from a young age understand that marriage signifies an enduring family

9 unit, and likewise understand when the State has deemed a class of families as less worthy than

10 other families, undeserving of marriage, and not entitled to the same societal recognition and

11 support as other families. The State has no adequate interest to justify marking the children of

12 same-sex couples, including the children of Plaintiffs Fletcher Whitwell and Greg Flamer, Adele

13 Terranova and Tara Newberry, Caren and Farrell Cafferata-Jenkins, and Megan Lanz and Sara

14 Geiger, and the expected daughter of Mikyla and Katrina Miller, with a badge of inferiority that

15 invites disrespect in school, on the playground, and in every other sphere of their lives.

16

44. Couples who marry in Nevada have their marriages solemnized pursuant to state

17 law, Nev. Rev. Stat. § 122.010(1), but the law provides no state-approved mechanism to

18 solemnize a registered domestic partnership, Nev. Rev. Stat. § 122A.110. By solemnizing only

19 marriages and not registered domestic partnerships, the State sends a message that marital

20 commitments are preferred and are more significant.

21

45. The State refuses same-sex couples the same opportunity to celebrate their

22 marriage with official State sanction, which can negatively affect how their family members and

23 others view the couples’ relationship. Same-sex couples instead must register as domestic

24 partners by filing a notarized form with the Secretary of State, Nev. Rev. Stat. § 122A.100, a

25 process not unlike that required to license a business, Nev. Rev. Stat. § 76.100; to apply for

26 appointment as a notary, Nev. Rev. Stat. § 240.010; or to register as an athlete’s agent, Nev. Rev.

27 Stat. § 398.452. By treating same-sex couples as unworthy of state-sanctioned solemnization, the

28

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1 State denies them the dignity, respect, and stature afforded to different-sex couples who can

2 marry.

3

46. Nevada law also fails to afford registered domestic partners the same streamlined

4 process for one partner to adopt the other’s surname, an important rite for many couples to signify

5 to themselves, their children, and the community that they are forming a family. Unlike different-

6 sex spouses, who can effect a name change through the federal Social Security Administration

7 and Nevada Department of Motor Vehicles with a marriage certificate, registered domestic

8 partners instead must obtain a court-ordered name change. This requires same-sex couples who

9 wish to adopt a family name at the time that they enter into a legal relationship to file a verified

10 petition in state court certifying that they are neither a felon nor attempting to defraud creditors,

11 and to publish notice of the requested name change in a newspaper. Nev. Rev. Stat. §§ 41.270,

12 41.280. This process not only requires time and expense, but also imposes the demeaning burden

13 of publicly proving to others that one is not engaging in criminal or fraudulent activity before the

14 name change can be granted, which is not required of different-sex spouses.

15

47. The government is a powerful teacher of discrimination to others. Bearing the

16 imprimatur of the government, Nevada’s statutory and constitutional marriage ban, which

17 relegates same-sex couples and their children to the unfamiliar and lesser status of domestic

18 partnership, not only proliferates confusion regarding the legal rights of committed same-sex

19 couples, but also causes others to follow the government’s example in discriminating against

20 them. Many private entities defer to the State’s bestowment of marital status in defining “family”

21 for purposes of an array of important benefits, often resulting in the exclusion of same-sex

22 couples and their children from important safety nets such as private employer-provided health

23 insurance for family members. The State also encourages disrespect of committed same-sex

24 couples and their children by others in workplaces, schools, businesses, and other major arenas of

25 life, in ways that would be less likely to occur and more readily corrected if marriage were

26 available to same-sex couples.

27

48. Plaintiffs do not challenge the inclusion of different-sex partners in the State’s

28 domestic partnership law. Different-sex couples, however, have two options for protecting their

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1 families: marriage, which communicates a status with deep social significance that is readily

2 understood and respected, and the novel alternative status of registered domestic partnership. In

3 contrast, committed same-sex couples are denied that option and relegated to the latter, less-

4 respected status.

5

49. Additionally, marriages entered by different-sex spouses in other jurisdictions

6 regularly are honored as marriages by the State, without any additional steps required. The State

7 refuses, however, to recognize marriages entered by same-sex spouses in other jurisdictions as

8 marriages. Instead, a same-sex couple’s marriage may only be recognized as a registered

9 domestic partnership and only if the same-sex couple pays the fee required of couples registering

10 as domestic partners, a step that no different-sex spouses need undertake. Nev. Rev. Stat. §

11 122A.500.

12

C. Plaintiffs Are Similarly Situated To Different-Sex Nevada Couples In All

Material Respects And Are Injured By The State’s Denial of Marriage

13

Equality.

14

50. Plaintiffs are loving and devoted same-sex couples who have pledged their

15 commitment to love and to cherish one another, but the State denies them the ability to make the

16 same state-sanctioned commitment to each other as spouses do through civil marriage.

17

Plaintiffs Beverly Sevcik and Mary Baranovich

18

51. Plaintiffs Beverly Sevcik, age 73, and Mary Baranovich, age 76, are a lesbian

19 couple residing in Carson City, Nevada. They are proud grandmothers to their several

20 grandchildren and will celebrate their forty-first year together as a couple in October of this year.

21

52. Beverly and Mary did not dream when they began their relationship decades ago

22 that they might someday identify openly as a couple. When Beverly and Mary committed their

23 lives to each other on October 2, 1971 and bought rings to signify their relationship, they were

24 careful not to purchase matching rings for fear of having their relationship discovered. They

25 worried about facing discrimination commonly visited upon lesbians and gay men at that time,

26 such as harassment from their neighbors, being fired from their jobs, and potentially losing

27 Beverly’s children—then ages eight, ten, and twelve—whom they were raising together.

28

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1

53. Mary had always known that she was different from other women, but did not

2 learn that she was gay until she took an “abnormal psychology” college class in the mid-1950s.

3 Being gay was still understood as a mental illness at that time, and she was taught that it was

4 abnormal and unhealthy. She recalls vividly that when she began going to bars that quietly

5 catered to lesbians—one of the only places lesbians could associate with each other in the

6 1950s—police routinely would raid the facilities with their nightsticks drawn. Although Beverly

7 and Mary could not have imagined when they first fell in love that same-sex couples might

8 someday be permitted to marry, they have come to wonder why their decades of commitment

9 cannot earn them that honored status. Mary felt deeply hurt by messages from the campaign to

10 amend Nevada’s constitution that allowing same-sex couples to marry would hurt the marriages

11 of heterosexuals because she cannot understand how her lifelong commitment to Beverly harms

12 others.

13

54. Beverly and Mary go to all of their medical appointments together and often have

14 to confront the question of how to identify themselves on hospital and doctor’s office forms.

15 They are frustrated that not even four decades of family life together will allow them to check the

16 only box that feels fitting: “married.”

17

Plaintiffs Antioco Carrillo and Theodore Small

18

55. Plaintiffs Antioco Carrillo, age 44, and Theo Small, age 43, are a gay male couple

19 residing in Las Vegas, Nevada. Antioco is the executive director of a non-profit organization that

20 provides support and advocacy for adults and children living with HIV/AIDS in southern Nevada.

21 Theo is a teacher and has worked in the same school district for nearly two decades. Theo was

22 recently nominated as a Classroom Superhero, as part of a project created by the National

23 Education Association that allows parents, students, and community members to show support to

24 educators. Antioco and Theo have known each other since the mid-1990s through mutual

25 community involvement. They have been in a loving, committed relationship for more than five

26 years and have registered as domestic partners in Nevada.

27

56. Antioco and Theo wish to marry because they love each other and are committed

28 to one another for life. Antioco knows that Theo is “the one” for him, because Antioco cannot

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1 see himself with anyone else. For Theo, Antioco is the essential ingredient that allows Theo to be

2 his “best self.” Each knows that the other will always be there for him, no matter what happens.

3

57. In 2010, in the middle of a bank lobby, the two of them raised their right hands

4 before a notary public in order to complete a domestic partnership registration form, which they

5 filed with the Secretary of State. It was a quiet and sterile process. When friends asked why the

6 couple did not have a wedding-like ceremony to celebrate their registration, they explained that to

7 do so would, for them, feel inauthentic. They do not want something “like” a wedding; they want

8 a wedding. As Antioco puts it, he does not want the crumbs of a full life; he wants for them to

9 live a full life. They both long for the day when they can invite their family and friends to bear

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

11 Nevada are able to do, through marriage.

12

Plaintiffs Karen Goody and Karen Vibe

13

58. Plaintiffs Karen G., age 51, and Karen V., age 37, are a lesbian couple residing in

14 Reno, Nevada. Karen G. works as a sales agent for a medical supply company, and Karen V. is a

15 financial advisor. Karen V. also is a percussionist with the Reno Philharmonic Orchestra and

16 mentors youth through a philharmonic program called Discovery Music. Karen G. and Karen V.

17 have been in a loving, committed relationship since meeting during the summer of 2005. In

18 December of 2005, Karen V. asked Karen G. to marry her, and they have been engaged ever since.

19 They have not registered as domestic partners with the State because they do not want to enter into

20 a second-class status that brands their relationship as “less than” others. As Karen V. describes it,

21 when she proposed to Karen G., her question was “Will you marry me?” and not “Will you enter a

22 secondary status with me?”

23

59. Marriage has played a significant role in both women’s families. Karen G.’s

24 parents were married for 50 years before her father passed away, and Karen V.’s for more than 40

25 years. The couple anxiously await the day that they can have such a state-sanctioned wedding that

26 communicates to others the same depth of commitment as their parents’ marriages. Karen V. is so

27 proud of their relationship that she wants to “tell the world about it,” but is frustrated not to have

28 access to the language that readily expresses their lifelong commitment such as “spouse” or

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1 “wife.” Without these terms, the couple struggles to explain their relationship to others, including

2 at the networking events they often attend for work. They frequently have to correct others’

3 confusion about whether they are business partners instead of life partners. They find the ongoing

4 need to explain their relationship stressful and belittling when the State allows others to describe

5 their relationships through one word instantly understood by others: marriage.

6

Plaintiffs Fletcher Whitwell and Greg Flamer

7

60. Fletcher Whitwell, age 37, and Greg Flamer, age 39, are a gay male couple

8 residing in Las Vegas, Nevada. Fletcher and Greg have been in a loving, committed relationship

9 for 14 years and have registered as domestic partners in Nevada. Both share a passion for

10 advancing child welfare. Greg helps find homes for abused and neglected children in his position

11 as a licensing supervisor with the Clark County Department of Family Services. Fletcher, an

12 advertising executive, serves on the board of a non-profit literacy program that distributes books

13 to schools in southern Nevada. Fletcher also is an active member of a foundation engaged in an

14 anti-bullying campaign, which was launched in 2010 after a surge in reported suicides among gay

15 teens. Fletcher and Greg met in 1998 and instantly connected because of their mutual interest in

16 sports, travel, music, and, most importantly, family and friends. The couple moved to Las Vegas

17 in 2006 so that Fletcher could pursue his current job.

18

61. In 2011, Fletcher and Greg welcomed a baby girl, Hudson Whitwell, into their

19 family through adoption. Fletcher and Greg share the typical responsibilities and joys of

20 parenting a young child: they feed, bathe, and clothe her; they teach her to walk and to recognize

21 different shapes and colors; they play peek-a-boo with her and take her to visit her grandparents;

22 they care for her when she’s sick; they read her bedtime stories and rock her to sleep at night.

23 Fletcher and Greg wish to marry for their daughter’s sake as well as for their own. Fletcher and

24 Greg worry that, as Hudson grows older, she will be deprived of a sense of normalcy and may

25 feel socially outcast because she will absorb the message she receives from her government that

26 her parents are not worthy of marriage. They hope that, one day, Hudson can walk down the aisle

27 at their wedding as their flower girl and that she will understand that the love and commitment

28

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1 her parents feel for one another—and for their family—is as great as that felt by other couples

2 who currently may marry.

3

Plaintiffs Mikyla Miller and Katrina Miller

4

62. Plaintiffs Mikyla Miller, age 29, and Katrina Miller (“Katie”), age 27, are a lesbian

5 couple residing in Reno, Nevada. Mikyla is a recent law school graduate who works part-time

6 with a non-profit agency serving low-income clients and part-time at a restaurant to make ends

7 meet. Katie is working on a Ph.D. in English at the University of Nevada, Reno. Shortly after

8 they began dating in 2004, they each knew that the other was “the one,” and have been a

9 committed, loving couple ever since. They married in California on June 17, 2008 and have

10 registered as domestic partners in both Nevada and California. Mikyla adopted Katie’s surname

11 and is carrying the couple’s first child, which is due in July. As part of a tradition in Katie’s

12 family, their daughter will be named Amelia Love Miller, making her the sixth generation in

13 Katie’s family to adopt the middle name “Love.”

14

63. While living in California, Katie and Mikyla each proposed to the other and

15 planned a commitment ceremony. Just two days before the ceremony, the California Supreme

16 Court ruled that same-sex couples must be permitted to marry. Although that decision was not

17 yet in effect, Katie and Mikyla were overjoyed that their ceremony could feel more “real” in light

18 of the Court’s ruling, and found that, because people understood it as such, it was an important

19 rite of passage that drew their families closer together. Katie’s mom planned the ceremony, and

20 all who attended took a vow during it to support the couple’s relationship. Mikyla’s mother

21 began to treat Katie differently after the ceremony, introducing her to others as a daughter-in-law,

22 instead of as Mikyla’s “friend.”

23

64. When the couple moved to Nevada, their family and friends were shocked to learn

24 that their marriage is not recognized there and that they, in effect, have been “unmarried.” Since

25 then, Mikyla and Katie repeatedly have encountered confusion from others about their

26 relationship. When they looked for their first rental home, the landlord told them that she

27 preferred to rent to a married couple, and they had to explain that they would offer the same

28 stability as a married couple. When Mikyla went to the hospital in February for chest pain, with

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1 Katie arriving separately from another location, Mikyla asked the receptionist to let Katie join her

2 when Katie arrived. The receptionist refused, saying that only patients could be allowed in the

3 emergency room treatment area, even though Mikyla could see that a heterosexual spouse of a

4 patient had been admitted to the same area. When Katie arrived, the receptionist refused to let

5 Katie join Mikyla, and Mikyla finally had to seek out her doctor for help, who then had to escort

6 Katie back to Mikyla.

7

65. Based on these experiences, Mikyla and Katie feel anxiety about how the State’s

8 refusal to recognize them as married encourages disrespect from others, and worry particularly

9 about how this will affect recognition of their legal relationship to their baby. When the child is

10 born, Mikyla and Katie would like to insure her through Katie’s health insurance plan, which

11 provides far superior coverage to Mikyla’s. Katie’s insurance company, however, advised

12 Mikyla that, unlike a marriage, a domestic partnership is not sufficient for their daughter’s birth to

13 be considered a qualifying event, and Katie may only insure her after an adoption. Katie and

14 Mikyla will spend thousands of dollars in attorney and court fees for Katie to adopt their child—

15 money they could otherwise set aside for their daughter’s education.

16

Plaintiffs Adele Terranova and Tara Newberry

17

66. Plaintiffs Adele Terranova, age 31, and Tara Newberry, age 37, reside in Las

18 Vegas, Nevada. Tara, formerly a police officer, is now an attorney at a small law firm, and Adele

19 works as the firm’s office manager. Their lives revolve around their two children, Evan

20 Newberry, age two, and Emily Newberry, three months old, and they are actively involved in a

21 children’s play group for same-sex couples’ families called “We Are Family.” Tara also

22 volunteers to help youth in a juvenile offender diversion program.

23

67. Adele and Tara have been a loving, committed couple since 2005. They married

24 in California in 2008, and are registered domestic partners in both California and Nevada. They

25 have encountered numerous examples of disrespect for their domestic partnership, including

26 being denied marriage-related discounts by their insurance company for Tara’s health coverage.

27 They feel a particular sense of urgency about having their marriage recognized because of the

28 confusion their domestic partnership has caused in circumstances involving their children. For

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1 example, although registered domestic partners are presumed the parents of children born into the

2 relationship, when Evan was born a hospital social worker insisted that “the dad” had to fill out

3 the declaration of paternity and refused to let both parents be listed. Evan’s birth certificate was

4 returned from the State with a blank for the second parent’s name, and it took a year-and-a-half to

5 get a corrected certificate listing Tara as the second parent. During this process, Tara had to

6 complete another declaration of paternity form, though she had to alter it by crossing out various

7 provisions to make references to her in it accurate. The State returned the form, insisting that it

8 could not be processed as altered, and Tara had to struggle to get the State to accept the form as

9 modified, pointing out that to do otherwise would require Tara to perjure herself on the form.

10 Adele and Tara also are distressed to find themselves answering questions that generally are

11 never asked of different-sex spouses. For example, when the couple took their daughter Emily to

12 the emergency room in February, hospital staff asked “which one is the real mom?” If they were

13 able to inform hospital staff that they are married, their family structure and relationship to their

14 children would not be as subject to question and disrespect.

15

Plaintiffs Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins

16

68. Caren Cafferata-Jenkins, age 53, and J. Farrell Cafferata-Jenkins, age 48, are a

17 lesbian couple residing in Carson City, Nevada. Caren and Farrell have been in a loving,

18 committed relationship for 15 years and have registered as domestic partners in Nevada. Caren is

19 the Executive Director of the Nevada Ethics Commission and Farrell is the President and Founder

20 of the Nevada Academy of Sign Language. Farrell’s family has deep ties to Nevada; her

21 grandmother was the first woman in Nevada elected to federal office. Caren and Farrell have two

22 boys, Dean and Quinn, ages 8 and 7, respectively. When Dean was diagnosed with autism at age

23 2, Farrell learned sign language so that they could better communicate. The couple now serves

24 on the board of a statewide advocacy and resource center for those who are deaf and hard of

25 hearing.

26

69. Caren and Farrell met 15 years ago at a potluck, at which Caren had arrived on a

27 motorcycle. When Caren took off her helmet, and Farrell locked eyes with her, there was an

28 instant “zing.” Caren then hired Farrell to help with landscaping work and insists that Farrell

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1 took longer than necessary pulling weeds so the two could spend more time together. They have

2 been together ever since. In 2002, they held a commitment ceremony in Reno. Because they

3 could not marry, they had to explain on their invitations that the ceremony was instead a b’rit

4 ahu’vah, which is Hebrew for “covenant of love.” They also traveled to California in 2008 to

5 marry.

6

70. Caren and Farrell know first-hand how marriage can change the way they and

7 others view their relationship—but they also know first-hand how hurtful it can feel for that

8 marriage to be disregarded. After returning to their home state of Nevada, they felt as though the

9 State “unmarried” them and that they had to start over from scratch. Although they registered as

10 domestic partners in Nevada, it felt like consigning themselves to bronze, when they previously

11 had a taste of gold. Marriage has always been important to the couple: both Caren and Farrell’s

12 parents have been married for more than 50 years, and Caren and Farrell yearn for the opportunity

13 to follow in their parents’ footsteps and celebrate a golden anniversary. Recognition of their

14 marriage would also be important for their children. Caren and Farrell experience difficulty in

15 identifying to others that both of them are parents to their children, because school forms often

16 only envision different-sex married parents.

17

Plaintiffs Megan Lanz and Sara Geiger

18

71. Sara Geiger, age 27, and Megan Lanz, age 31, are a lesbian couple residing in Las

19 Vegas, Nevada. The couple met in 2005 through their mutual passion for music. At the time,

20 both were pursuing music degrees at the University of Nevada at Las Vegas. Megan now serves

21 on the faculty at the College of Southern Nevada and maintains a flute studio. Sara is working

22 toward her master’s degree in music performance. Sara proposed to Megan with the engagement

23 ring that Sara’s father had given to her mother and the couple married in Vancouver, Canada in

24 2007, surrounded by a handful of close family and friends.

25

72. The couple’s inability to be recognized as married in Nevada causes them harm.

26 In January 2009, Sara gave birth in Nevada to the couple’s daughter, Jordan Geiger-Lanz. At the

27 hospital, staff told Megan, “You know, we don’t have to let you stay here, but we’re just going to

28 look the other way.” Jarred by this experience, Sara and Megan subsequently registered as

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1 domestic partners in Nevada on the first day when they could do so. Although they had

2 previously married outside Nevada at the time of Jordan’s birth, Megan’s parent-child

3 relationship with Jordan is not afforded express protection under Nevada law, because Nevada

4 does not recognize their marriage and because domestic partnerships were not even available at

5 the time of Jordan’s birth. As such, Megan’s status as a parent is vulnerable to challenges by

6 others, such as the hospital staff on the day of Jordan’s birth. In the absence of the State’s

7 recognition of her marriage, Megan’s only option is to adopt Jordan, the cost of which is currently

8 prohibitive for the couple. Megan also finds this forced choice demeaning when different-sex

9 married couples are not forced to adopt their own children to be recognized as parents. If the

10 State recognized Sara and Megan’s marriage as it would a different-sex couple’s marriage (i.e.,

11 existing as of the date it was entered), then there would be no question that the presumption of

12 parenthood would apply to Megan.

13

73. While vulnerability surrounding their daughter is particularly distressing to the

14 couple, Megan and Sara are frustrated that the law causes others confusion about their

15 relationship in a range of contexts. For example, Megan and Sara also have car insurance in

16 which Sara is listed as the primary insured, but when Megan tried to explain to a police officer

17 during a traffic stop that Sara was her wife, the police officer asked, “What’s that about? What

18 do you mean, it’s your wife?” Sara and Megan have been together as a same-sex couple in a

19 loving, committed relationship for 6 years, have registered as domestic partners in Nevada, and

20 wish to have their marriage recognized in Nevada.

21

D. The State’s Exclusion of Plaintiffs from Marriage Is Not Narrowly Tailored

to a Compelling State Purpose or Even Reasonably Related To a Legitimate

22

State Purpose.

23

74. No legitimate, let alone important or compelling, interest exists to exclude same-

24 sex couples from the historic and highly venerated institution of marriage, especially where the

25 State already grants lesbians and gay men access to almost all substantive spousal rights and

26 responsibilities through registered domestic partnership. As the State has acknowledged by

27 creating the parallel, but less respected, institution of registered domestic partnership, an

28 individual’s capacity to establish a loving and enduring relationship does not depend upon sexual

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1 orientation or his or her sex in relation to his or her committed life partner, nor is there even any

2 legitimate interest justifying denial of spousal protections, rights, and responsibilities on such

3 bases.

4

75. The State’s decision to exclude same-sex couples from marriage, relegating them

5 to the institution of registered domestic partnership, bears no relation to the State’s interests in

6 parenting or child welfare.

7

76. Barring lesbians and gay men from civil marriage does not affect who becomes a

8 parent. Nevada same-sex couples can and do bear children through use of reproductive

9 technology that is available to both same-sex and different-sex couples. They also bring children

10 into their families through foster care or adoption or from a prior relationship.

11

77. Parentage can be determined for all children regardless of marital status, Nev. Rev.

12 Stat. § 126.031 et seq., and parents are required to support their children regardless of marital

13 status, Nev. Rev. Stat. § 125B.020 et seq. Moreover, marriage has never been the sole province

14 of couples who are parents. Neither Nevada nor any other state in this country has ever restricted

15 marriage to those capable of or intending to procreate.

16

78. The consensus within the scientific community is that children and adolescents

17 reared by same-sex parents are as successful psychologically, emotionally, and socially as

18 children and adolescents raised by different-sex parents. The consensus among respected

19 researchers in the field is that parenting abilities are not a function of gender, sexual orientation,

20 or biological connection.

21

79. This consensus is reflected by numerous leading organizations of child welfare,

22 medical, and mental health professionals, which have issued statements confirming that same-sex

23 parents are as effective as different-sex parents in rearing well-adjusted children and adolescents.

24 The State’s own public policy also incorporates this view by making no distinction with respect to

25 the parenting rights of same-sex and different-sex couples.

26

80. Excluding same-sex couples from civil marriage will not make children of

27 different-sex spouses more secure. Different-sex spouses’ children will continue to enjoy the

28

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1 benefits that flow from their parents’ marriage, regardless of whether same-sex couples are

2 permitted to marry.

3

81. Excluding same-sex couples from marriage does, however, harm same-sex

4 couples’ children, including by branding their families as inferior and less deserving of respect,

5 and by encouraging private bias and discrimination.

6

82. The State’s interest in the welfare of children of lesbian and gay parents is as great

7 as its interest in the welfare of any other children. The family security that comes from the

8 State’s official recognition and support is no less important for same-sex parents and their

9 children than it is for different-sex parents and their children.

10

83. Excluding same-sex couples from marriage does nothing to protect or enhance the

11 rights of different-sex spouses. Different-sex spouses will continue to enjoy the same rights and

12 status conferred by marriage regardless of whether same-sex couples may marry, unimpaired by

13 the acknowledgment that this freedom belongs equally to lesbians and gay men.

14

84. Neither history nor tradition can justify the State’s discriminatory exclusion of

15 same-sex couples. Marriage has remained vital and enduring because of, not despite, its

16 resiliency in response to a dynamic society, as society and the courts have cast off prior

17 restrictions on interracial marriage and coverture. The Constitution is not confined to historic

18 notions of equality, and no excuse for the State’s discriminatory restriction can be found in the

19 ancient pedigree of such discrimination.

20

85. Although the State has a valid interest in protecting the public fisc, it may not

21 pursue that interest by making invidious distinctions between classes of its citizens without

22 adequate justification. Moreover, the State not only lacks any such fiscal justification but rather

23 would likely accrue cost-savings by allowing same-sex couples to enter the institution of marriage

24 rather than registered domestic partnership.

25

CLAIM FOR RELIEF

26

Equal Protection on the Basis of Sexual Orientation and Sex

27

U.S. Const. Amend. XIV, 42 U.S.C. § 1983

28

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1

86. Plaintiffs incorporate by reference and reallege paragraphs 1 to 85 of this

2 complaint.

3

87. Plaintiffs state this cause of action against Defendants in their official capacities

4 for purposes of seeking declaratory and injunctive relief.

5

88. The Fourteenth Amendment to the United States Constitution, enforceable

6 pursuant to 42 U.S.C. § 1983, provides that no state shall deny to any person the equal protection

7 of the laws. The conduct of Defendants and their agents in enforcing Nevada Constitution article

8 1, § 21, and Nevada Revised Statutes § 122.020, and all other sources of state law that preclude

9 marriage for same-sex couples and restrict them solely to registered domestic partnership, violates

10 Plaintiffs’ right to equal protection of the laws by discriminating impermissibly on the basis of

11 sexual orientation and sex.

12

89. Nevada Constitution article 1, § 21, Nevada Revised Statutes § 122.020, and all

13 other sources of state law that preclude marriage for same-sex couples or prevent recognition of

14 marriages because they were entered by individuals of the same sex violate the equal protection

15 guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.

16

90. As the State’s chief executive officer, Defendant Sandoval’s duties and actions to

17 enforce the State’s discriminatory marriage ban violate Plaintiffs’ constitutional rights to equal

18 treatment, without regard to sexual orientation or sex, under the Fourteenth Amendment to the

19 United States Constitution.

20

91. As the County Clerk and Commissioner of Civil Marriages for Clark County,

21 Defendant Alba’s duties and actions to ensure compliance with the State’s discriminatory

22 marriage ban through denying marriage licenses, refusing to solemnize marriages, certifying

23 those eligible to solemnize marriages, and maintaining marriage license records, violate the

24 constitutional rights to equal treatment, without regard to sexual orientation or sex, under the

25 Fourteenth Amendment to the United States Constitution of Plaintiffs Antioco Carrillo, Theo

26 Small, Fletcher Whitwell, and Greg Flamer.

27

92. As the County Clerk and Commissioner of Civil Marriages for Washoe County,

28 Defendant Harvey’s duties and actions to ensure compliance with the State’s discriminatory

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1 marriage ban through denying marriage licenses, refusing to solemnize marriages, certifying

2 those eligible to solemnize marriages, and maintaining marriage license records, violate the

3 constitutional rights to equal treatment, without regard to sexual orientation or sex, under the

4 Fourteenth Amendment to the United States Constitution of Plaintiffs Karen Goody and Karen

5 Vibe.

6

93. As the Clerk-Recorder for Carson City, Defendant Glover’s duties and actions to

7 ensure compliance with the State’s discriminatory marriage ban through denying marriage

8 licenses, certifying those eligible to solemnize marriages, and maintaining marriage license

9 records, violate the constitutional rights to equal treatment, without regard to sexual orientation or

10 sex, under the Fourteenth Amendment to the United States Constitution of Plaintiffs Beverly

11 Sevcik and Mary Baranovich.

12

94. By acting intentionally to enforce the State’s discriminatory marriage ban, each

13 Defendant has set in motion, or has refused to terminate, acts by others to enforce and implement

14 those laws that Defendants know, or reasonably should know, will cause others to inflict these

15 constitutional injuries upon the Plaintiffs. Through this conduct, each Defendant also knowingly

16 has acquiesced in the constitutional deprivations of those that he or she supervises, and has shown

17 a reckless or callous indifference to the rights of Plaintiffs, thereby proximately causing them

18 injury.

19

95. The State’s marriage ban, and Defendants’ actions to enforce it, denies same-sex

20 couples equal dignity and respect and relegates them to a separate-and-unequal status that is

21 demonstrably inferior. The State’s marriage ban brands lesbians and gay men and their children

22 as second-class citizens through a message of government-imposed stigma and causes private

23 bias and discrimination. The State’s marriage ban and Defendants’ actions reflect moral

24 disapproval and antipathy toward lesbians and gay men.

25

96. The State’s marriage ban targets lesbian and gay Nevadans as a class for exclusion

26 from marriage and discriminates against each Plaintiff based on his or her sexual orientation both

27 facially and as applied.

28

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1

97. Plaintiffs are similarly situated to different-sex spouses in every relevant respect.

2 Plaintiffs and their children are as worthy of respect, dignity, social acceptance, and legitimacy as

3 different-sex spouses and their children. The emotional, romantic, and dignitary reasons

4 Plaintiffs seek to marry are similar to those of different-sex couples who choose to marry.

5

98. Although the denial of equal treatment is invalid under any form of constitutional

6 scrutiny, differential treatment by the government based on Plaintiffs’ sexual orientation warrants

7 at least heightened scrutiny. The government’s differential treatment of Plaintiffs based on their

8 sex also warrants heightened scrutiny.

9

99. Lesbians and gay men have suffered a long history of discrimination. They have

10 endured hostility and antipathy from both public and private parties. Being gay or lesbian has

11 been classified as a mental illness. The intimate relationships of same-sex couples have been

12 criminalized. Lesbian and gay civil servants have been purged from federal and municipal

13 employment. Lesbians and gay men disproportionately have been the victims of brutal hate

14 crimes.

15

100. Further, as the State has acknowledged by granting same-sex registered domestic

16 partners virtually the same family, parenting, and relationship rights and responsibilities as

17 spouses enjoy and by prohibiting discrimination based on sexual orientation in employment

18 housing, and public accommodations, Nev. Rev. Stat. §§ 613.330, 118.020, 651.070, neither

19 Plaintiffs’ sexual orientation nor their sex bears any relation to their worth as committed life

20 partners or parents, or their ability to contribute to society.

21

101. Sexual orientation is a core, defining trait and is so fundamental to one’s identity

22 and conscience that a person cannot be required to abandon it as a condition of equal treatment.

23

102. Sexual orientation generally is fixed at an early age and highly resistant to change

24 through intervention. No credible evidence supports the notion that such interventions are either

25 effective or safe; indeed, they often are harmful and damaging. No mainstream mental health

26 professional organization approves interventions to change sexual orientation, and virtually all of

27 them have adopted policy statements cautioning professionals and the public about these

28 treatments.

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1

103. Lesbians and gay men are a small minority of the population, and the legacy of

2 discrimination against them is evident in their ongoing relative vulnerability and lack of political

3 power. Lesbians and gay men lack statutory protection against discrimination in employment,

4 public accommodations, and housing at the federal level and in 29 states; are systematically

5 underrepresented in federal, state, and local democratic bodies; have been stripped of the right to

6 marry through 29 state constitutional amendments and currently are not permitted to marry in a

7 total of 44 states; and now have been targeted through the voter initiative process more than any

8 other group.

9

104. The State’s marriage ban discriminates against each Plaintiff on the basis of sex

10 both facially and as applied, barring each Plaintiff from marriage and relegating him or her to

11 registered domestic partnership solely because he or she wishes to marry a life partner of the

12 same sex.

13

105. The State’s marriage ban also serves the impermissible purpose of blocking

14 departures from sex stereotypes by excluding each Plaintiff from marriage and relegating him or

15 her to registered domestic partnership with the one person he or she loves, because Plaintiffs have

16 failed to conform to the prevailing and State-enforced stereotype that men should marry women

17 and that women should marry men.

18

DECLARATORY AND INJUNCTIVE RELIEF

19

28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65

20

106. Plaintiffs incorporate by reference and reallege paragraphs 1 to 105 of this

21 complaint.

22

107. This case presents an actual controversy because Defendants’ present and ongoing

23 denial of equal treatment to Plaintiffs subjects them to serious and immediate harms, warranting

24 the issuance of a declaratory judgment.

25

108. Plaintiffs seek preliminary and/or permanent injunctive relief to protect their

26 constitutional rights and avoid the injuries described above. A favorable decision enjoining

27 Defendants would redress and prevent the irreparable injuries to Plaintiffs identified herein, for

28 which Plaintiffs have no adequate remedy at law or in equity.

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1

109. The State will incur little to no burden in allowing same-sex couples to marry and

2 in recognizing the valid marriages of same-sex couples from other jurisdictions on the same terms

3 as different-sex couples, whereas the hardship for Plaintiffs of being denied equal treatment and

4 relegated to a demonstrably inferior relationship status is severe, subjecting them to an irreparable

5 denial of their constitutional rights. The balance of hardships thus tips strongly in favor of

6 Plaintiffs.

7

PRAYER FOR RELIEF

8

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

9

A. Declaring that the provisions and enforcement by Defendants of Nevada

10 Constitution Article 1, § 21, Nevada Revised Statutes § 122.020, and any other sources of state

11 law that exclude same-sex couples from marrying and relegate them to only registered domestic

12 partnership, violate Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth

13 Amendment to the United States Constitution; and, for those couples legally married in another

14 jurisdiction, declaring that it is unconstitutional for Defendants to refuse, based solely on the fact

15 that Plaintiffs are same-sex couples, to respect Plaintiffs’ out-of-state valid marriages as

16 marriages in Nevada;

17

B. Preliminarily and permanently enjoining enforcement by Defendants of Nevada

18 Constitution Article 1, § 21, Nevada Revised Statutes § 122.020, and any other sources of state

19 law that exclude same-sex couples from marriage and restrict them to only registered domestic

20 partnership; and for those same-sex couples who are legally married in another jurisdiction,

21 enjoining Defendants from denying recognition of those marriages based solely on the fact that

22 Plaintiffs are same-sex couples;

23

C. Requiring Defendants in their official capacities to allow same-sex couples to

24 marry on the same terms as different-sex couples, and to recognize the valid marriages of same-

25 sex couples from other jurisdictions on the same terms as the valid marriages of different-sex

26 couples from other jurisdictions;

27

D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant

28 to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and

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Case No. 12-17668

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and
COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge.

PLAINTIFFS-APPELLANTS’ MOTION FOR LEAVE TO EXCEED TYPE-VOLUME LIMITATION

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600

Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY &
MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes
Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

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Pursuant to Ninth Circuit Rule 32-2, Plaintiffs-Appellants respectfully seek leave to file an opening brief of no more than 26,500 words, which exceeds the applicable type-volume limitation. See Fed. R. App. P. 32(a)(7)(B).
This case involves issues of immense importance for thousands of same-sex couples throughout the Ninth Circuit, asking whether the federal guarantees of due process and equal protection afford same-sex couples the freedom to marry. Eight loving and committed same-sex couples (“Plaintiff Couples”) from Nevada brought suit against various government officials (“Defendant Officials”) who enforce Nevada law barring same-sex couples from civil marriage. This classbased exclusion of lesbians and gay men from marriage imposes manifold harms on them and their children, including the deprivation of sweeping federal rights and responsibilities for spouses, and a host of practical difficulties, vulnerabilities, and dignitary harms that accompany being marked by one’s government as secondclass citizens.
Substantial need supports Plaintiff Couples’ request to file an oversized brief, given the profound importance and uniqueness of the underlying issues, the detailed nature of the underlying record, including expert and other evidence, the fact that this appeal presents multiple questions of either first impression or unsettled law in this Circuit as well as other federal Courts of Appeals, and the fact

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that recent decisions of the Supreme Court require briefing of certain involved issues for the first time before any federal appellate court.
As an example, the district court held that the fundamental right to marry shelters only different-sex couples, and not same-sex couples. No U.S. Court of Appeals has yet decided whether the fundamental right to marry — or other fundamental rights and liberty interests in autonomy, family integrity, and association — afford same-sex couples the freedom to marry. This case also asks whether same-sex couples are protected against discrimination in marriage by guarantees of equal protection without regard to sexual orientation — an issue that this Court decided in an opinion that was subsequently vacated. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated on other grounds sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
The demanding legal analysis and importance of this case have only heightened in light of recent rulings of the Supreme Court. This Circuit had weighed in on the constitutionality of marriage bans in the context of California’s Proposition 8. But because that decision was vacated, the Court will here decide as a matter of first impression whether marriage bans, such as the Nevada ban challenged in this case, can survive the appropriate level of constitutional review. On the same day that the Court decided Hollingsworth, moreover, it also held the key portion of the federal Defense of Marriage Act (“DOMA”) unconstitutional in

2

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United States v. Windsor, 133 S. Ct. 2675 (2013). The Court held that this provision of DOMA “violates basic due process and equal protection principles.” Id. at 2693. The legal impact of Windsor, and how its due process and equal protection analysis applies to the States, has not been presented to any U.S. Court of Appeals. The recent development of the law by the Supreme Court, therefore, further demonstrates the substantial need for additional space to brief these evolving and multi-faceted legal issues.
This appeal involves other unsettled areas of law with implications for the constitutional rights of lesbians and gay men extending beyond the questions about marriage presented here. For example, the appropriate level of constitutional scrutiny for government classifications based on sexual orientation remains an open question in this Circuit, and the answer to that question will determine the analysis for a range of claims involving unfavorable treatment of gay people by the government. A brief of this size is thus necessary to give careful consideration and description to the wide array of factual and legal issues in this case.
In addition, the district court decision incorporated and relied heavily on the lengthy decision of another district court, Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012), thus requiring Plaintiff Couples to respond to two lower courts’ analysis in their brief. Plaintiff Couples’ brief also must address the arguments of three different parties defending Nevada’s marriage ban, including

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Defendants-Appellees Governor Sandoval and Carson City Clerk-Recorder Alan Glover, and Intervenor-Defendant-Appellee Coalition for the Protection of Marriage, each of whom filed separate briefs in the district court.
All of Plaintiff Couples’ claims are supported by extensive written testimony from six experts on topics including the essential attributes of marriage and its history in Nevada and across the United States; the history of discrimination against gay people; the fixed, core nature of sexual orientation; similarities between the committed relationships of same-sex and different-sex couples; the factors that affect the length and stability of relationships for both different-sex and same-sex couples; the political powerlessness of lesbians and gay men; and the scientific research showing that the children of same-sex couples and different-sex couples are equally well-adjusted. An adequate exposition of the Plaintiff Couples’ claims and the supporting evidence accordingly requires additional length for the brief. This Court’s resolution of the motion to exceed the page limits in Perry provides further support for Plaintiff Couples’ motion here. In that appeal, which involved similar issues, this Court granted permission for an opening brief of up to 31,000 words. Perry v. Brown, No. 10-16696, Dkt. 20-1, 25.
No other party in this case opposes Plaintiff Couples’ request: 1. Counsel for Defendant-Appellee Governor Sandoval indicated that he consents to this request.

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2. Counsel for Defendant-Appellee Clark County Clerk Diana Alba indicated that she has no position on this request.
3. Counsel for Defendant-Appellee Washoe County Clerk Nancy Parent indicated that she does not oppose this request.1
4. Counsel for Defendant-Appellee Carson City Clerk-Recorder Alan Glover, and for Intervenor-Defendant-Appellee Coalition for the Protection of Marriage (“Coalition”), indicated that their respective clients do not oppose this request, on the condition that Plaintiff Couples would not object if their clients also sought leave to file an oversize answering brief. Assuming that any such request would seek leave to file a brief no longer than the 26,500 words requested here, Plaintiff Couples would not object.
This appeal involves one of the most “vital personal rights essential to the orderly pursuit of happiness,” Loving v. Virginia, 388 U.S. 1, 12 (1967), and will determine the course of family life for thousands of same-sex couples. In light of the nature of this case and the numerous, currently unresolved legal issues that

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Washoe County Clerk Nancy Parent is substituted for her predecessor, Amy Harvey.
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must be addressed in the briefing, Plaintiff Couples respectfully request leave to

file an opening brief of no more than 26,500 words.

DATE: October 18, 2013

Respectfully submitted,

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.

Carla Christofferson Dawn Sestito Melanie Cristol Rahi Azizi Dimitri Portnoi O’MELVENY & MYERS LLP

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP

By: s/ Tara L. Borelli Tara L. Borelli
Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Tara L. Borelli

.

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Case No. 12-17668

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and
COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge.

DECLARATION OF TARA L. BORELLI

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600

Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY &
MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes
Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

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I, Tara L. Borelli, declare as follows: 1. I am an attorney with Lambda Legal Defense and Education Fund, Inc., counsel for Plaintiffs-Appellants Beverly Sevcik and Mary Baranovich; Antioco Carrillo and Theodore Small; Karen Goody and Karen Vibe; Fletcher Whitwell and Greg Flamer; Mikyla Miller and Katrina Miller; Adele Terranova and Tara Newberry; Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins; and Megan Lanz and Sara Geiger. I make this declaration in support of PlaintiffsAppellants’ Motion for Leave to Exceed Type-Volume Limitation for their opening brief. I have personal knowledge of the facts set forth herein. 2. This case involves issues of immense importance for thousands of same-sex couples throughout the Ninth Circuit, asking whether the federal guarantees of due process and equal protection afford same-sex couples the freedom to marry. Eight loving and committed same-sex couples (“Plaintiff Couples”) from Nevada brought suit against various government officials (“Defendant Officials”) who enforce Nevada law barring same-sex couples from civil marriage. This class-based exclusion of lesbians and gay men from marriage imposes manifold harms on them and their children, including the deprivation of sweeping federal rights and responsibilities for spouses, and a host of practical difficulties, vulnerabilities, and dignitary harms that accompany being marked by one’s government as second-class citizens.
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3. Substantial need supports Plaintiff Couples’ request to file an oversized brief, given the profound importance and uniqueness of the underlying issues, the detailed nature of the underlying record, including expert and other evidence, the fact that this appeal presents multiple questions of either first impression or unsettled law in this Circuit as well as other federal Courts of Appeals, and the fact that recent decisions of the Supreme Court require briefing of certain involved issues for the first time before any federal appellate court.
4. As an example, the district court held that the fundamental right to marry shelters only different-sex couples, and not same-sex couples. No U.S. Court of Appeals has yet decided whether the fundamental right to marry — or other fundamental rights and liberty interests in autonomy, family integrity, and association — afford same-sex couples the freedom to marry. This case also asks whether same-sex couples are protected against discrimination in marriage by guarantees of equal protection without regard to sexual orientation — an issue that this Court decided in an opinion that was subsequently vacated. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated on other grounds sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
5. The demanding legal analysis and importance of this case have only heightened in light of recent rulings of the Supreme Court. This Circuit had weighed in on the constitutionality of marriage bans in the context of California’s

2

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Proposition 8. But because that decision was vacated, the Court will here decide as a matter of first impression whether marriage bans, such as the Nevada ban challenged in this case, can survive the appropriate level of constitutional review. On the same day that the Court decided Hollingsworth, moreover, it also held the key portion of the federal Defense of Marriage Act (“DOMA”) unconstitutional in United States v. Windsor, 133 S. Ct. 2675 (2013). The Court held that this provision of DOMA “violates basic due process and equal protection principles.” Id. at 2693. The legal impact of Windsor, and how its due process and equal protection analysis applies to the States, has not been presented to any U.S. Court of Appeals. The recent development of the law by the Supreme Court, therefore, further demonstrates the substantial need for additional space to brief these evolving and multi-faceted legal issues.
6. This appeal involves other unsettled areas of law with implications for the constitutional rights of lesbians and gay men extending beyond the questions about marriage presented here. For example, the appropriate level of constitutional scrutiny for government classifications based on sexual orientation remains an open question in this Circuit, and the answer to that question will determine the analysis for a range of claims involving unfavorable treatment of gay people by the government. A brief of this size is thus necessary to give careful consideration and description to the wide array of factual and legal issues in this case.

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7. In addition, the district court decision incorporated and relied heavily on the lengthy decision of another district court, Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012), thus requiring Plaintiff Couples to respond to two lower courts’ analysis in their brief. Plaintiff Couples’ brief also must address the arguments of three different parties defending Nevada’s marriage ban, including Defendants-Appellees Governor Sandoval and Carson City Clerk-Recorder Alan Glover, and Intervenor-Defendant-Appellee Coalition for the Protection of Marriage, each of whom filed separate briefs in the district court.
8. All of Plaintiff Couples’ claims are supported by extensive written testimony from six experts on topics including the essential attributes of marriage and its history in Nevada and across the United States; the history of discrimination against gay people; the fixed, core nature of sexual orientation; similarities between the committed relationships of same-sex and different-sex couples; the factors that affect the length and stability of relationships for both different-sex and same-sex couples; the political powerlessness of lesbians and gay men; and the scientific research showing that the children of same-sex couples and different-sex couples are equally well-adjusted. An adequate exposition of the Plaintiff Couples’ claims and the supporting evidence accordingly requires additional length for the brief. This Court’s resolution of the motion to exceed the page limits in Perry provides further support for Plaintiff Couples’ motion here. In that appeal,

4

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which involved similar issues, this Court granted permission for an opening brief of up to 31,000 words. Perry v. Brown, No. 10-16696, Dkt. 20-1, 25.
9. No other party in this case opposes Plaintiff Couples’ request: a. Counsel for Defendant-Appellee Governor Sandoval indicated
that he consents to this request. b. Counsel for Defendant-Appellee Clark County Clerk Diana
Alba indicated that she has no position on this request. c. Counsel for Defendant-Appellee Washoe County Clerk Nancy
Parent indicated that she does not oppose this request.1 d. Counsel for Defendant-Appellee Carson City Clerk-Recorder
Alan Glover, and for Intervenor-Defendant-Appellee Coalition for the Protection of Marriage (“Coalition”), indicated that their respective clients do not oppose this request, on the condition that Plaintiff Couples would not object if their clients also sought leave to file an oversize answering brief. Assuming that any such request would seek leave to file a brief no longer than the 26,500 words requested here, Plaintiff Couples would not object.

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Washoe County Clerk Nancy Parent is substituted for her predecessor, Amy Harvey.
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10. In light of the nature of this case and the numerous, currently unresolved legal issues that must be addressed in the briefing, Plaintiff Couples respectfully request leave to file an opening brief of no more than 26,500 words.
I declare, under penalty of perjury under the laws of the United States, that these facts are true and correct and that this Declaration is executed this 18th day of October 2013 in Los Angeles, California.
s/ Tara L. Borelli Tara L. Borelli

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Tara L. Borelli

.

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Case No. 12-17668

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and
COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge.

PLAINTIFFS-APPELLANTS’ OPENING BRIEF

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600

Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY &
MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes
Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

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TABLE OF CONTENTS

Page

INTRODUCTION ....................................................................................................1
JURISDICTIONAL STATEMENT .........................................................................3
STATEMENT OF THE ISSUES..............................................................................4
ADDENDUM OF PERTINENT AUTHORITIES...................................................5
STATEMENT OF THE CASE.................................................................................5
STATEMENT OF FACTS .......................................................................................9
SUMMARY OF THE ARGUMENT .....................................................................14
ARGUMENT ..........................................................................................................16
I. THE STANDARD OF REVIEW IS DE NOVO ............................................16
II. NEVADA’S MARRIAGE BAN INFLICTS PROFOUND HARMS UPON SAME-SEX COUPLES AND THEIR CHILDREN, AND SHUNTING SAME-SEX COUPLES INTO REGISTERED DOMESTIC PARTNERSHIPS DOES NOT CURE THESE HARMS..........................................................17
A. The Marriage Ban Deprives Same-Sex Couples’ Families of a Sweeping Safety Net of Federal Protections ....................17
B. The Marriage Ban Visits a Host of Other Practical Harms and Difficulties upon Same-Sex Couples’ Families ................22
C. The Marriage Ban Inflicts Profound Dignitary Harms upon Same-Sex Couples’ Families ..........................................27
III. NEVADA’S MARRIAGE BAN VIOLATES SAME-SEX COUPLES’ FUNDAMENTAL RIGHTS AND LIBERTY INTERESTS, INCLUDING THEIR RIGHT TO EQUAL DIGNITY........................................................30
A. The Marriage Ban Denies Same-Sex Couples the Fundamental Right to Marry and Other Important Liberty Interests ....................................................................................31
B. The Marriage Ban Improperly Infringes the Right to Equal Dignity ...........................................................................38

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TABLE OF CONTENTS (continued)

Page

IV. NEVADA’S MARRIAGE BAN VIOLATES THE FOURTEENTH AMENDMENT’S GUARANTEE OF EQUAL PROTECTION .........................48
A. Heightened Review Applies to Sexual Orientation Discrimination .......................................................................... 49
1. No Ninth Circuit precedent forecloses heightened scrutiny ..........................................................................50
2. Although this Court already has found a history of discrimination against gay people, the district court refused to follow that holding........................................52
3. Sexual orientation is not related to the ability to contribute to society.......................................................54
4. Sexual orientation is a core, defining, and immutable characteristic................................................55
5. The District Court erred by ruling that relative political powerlessness requires a group’s chances of legislative success to be “virtually hopeless.” ..........58
B. At a Minimum, Rational Basis Review of the Marriage Ban Must Be Meaningful, Although the Marriage Ban Cannot Withstand Any Form of Rational Review...................62
1. The Court must closely consider a law that targets and demeans a historically disfavored group or impinges upon important relationships .........................62
2. Same-sex couples may not be barred from marriage merely to sustain the tradition of excluding them or based on a private view that their inclusion mars the institution ................................66
a. Tradition ..............................................................66
b. Caution ................................................................69
c. Private bias ..........................................................70

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TABLE OF CONTENTS (continued)

Page

3. No additional rationales offered by Defendant Officials or Intervenor can survive rational basis review ............................................................................72
a. Excluding same-sex couples from marriage promotes neither “responsible procreation” nor interests in child welfare, serving instead only to harm Plaintiff Couples’ children.............72
i. Channeling procreation.............................73
ii. Promoting children’s well-being ..............78
b. Affording same-sex couples access to civil marriage will have no effect on religious liberties ................................................................84
C. Nevada’s Marriage Ban Also Discriminates Based on Sex, Further Warranting Heightened Review..........................86
D. Nevada’s Marriage Ban Discriminates with Respect to Fundamental Rights and Liberty Interests and Must Be Afforded Heightened Scrutiny for that Reason as Well ..........92
V. BAKER V. NELSON PRESENTS NO BARRIER TO RELIEF IN THIS CASE ...................................................................................................95
CONCLUSION .......................................................................................................97

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TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Page(s)

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)............................................................................................60

Baker v. Nelson, 409 U.S. 810 (1972)........................................................................6, 7, 95, 96, 97

Boddie v. Connecticut, 401 U.S. 371 (1971)......................................................................................32, 34

Bowen v. Gilliard, 483 U.S. 587 (1987)............................................................................................58

Bowers v. Hardwick, 478 U.S. 186 (1986)..........................................................................50, 51, 64, 75

Brecht v. Abrahamson, 507 U.S. 619 (1993)............................................................................................52

Brown v. Bd. of Educ., 347 U.S. 483 (1954)............................................................................................82

Califano v. Jobst, 434 U.S. 47 (1977)..............................................................................................32

Carey v. Population Servs. Int’l, 431 U.S. 678 (1977)............................................................................................31

Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971 (2010)........................................................................................57

Citizens United v. FEC, 558 U.S. 310 (2010)..............................................................................................4

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)....................................................................50, 51, 54, 58, 59

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974)............................................................................................32

Craig v. Boren, 429 U.S. 190 (1976)............................................................................................91
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TABLE OF AUTHORITIES (continued)

Page(s)

Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990)............................................................................................46

Eisenstadt v. Baird, 405 U.S. 438 (1972)....................................................................76, 77, 80, 82, 94

Frontiero v. Richardson, 411 U.S. 677 (1973)..........................................................................59, 60, 61, 96

Griswold v. Connecticut, 381 U.S. 479 (1965)....................................................................31, 35, 36, 75, 77

Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966)............................................................................................93

Heckler v. Mathews, 465 U.S. 728 (1984)............................................................................................29

Heller v. Doe, 509 U.S. 312 (1993)............................................................................................65

Hicks v. Miranda, 422 U.S. 332 (1975)............................................................................................96

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)..................................................................................96, 97

Hope v. Pelzer, 536 U.S. 730 (2002)............................................................................................41

Hunter v. Erickson, 393 U.S. 385 (1969)............................................................................................70

J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994)................................................................................87, 88, 89

Kelo v. City of New London, 545 U.S. 469 (2005)............................................................................................62

Korematsu v. United States, 323 U.S. 214 (1944)......................................................................................40, 59

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TABLE OF AUTHORITIES (continued)

Page(s)

Lawrence v. Texas, 539 U.S. 558 (2003).....................................................................................passim

Locke v. Davey, 540 U.S. 712 (2004)............................................................................................89

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

M.L.B. v. S.L.J., 519 U.S. 102 (1996)............................................................................................34

Mandel v. Bradley, 432 U.S. 173 (1977)............................................................................................97

Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976)......................................................................................52, 58

Mathews v. Lucas, 427 U.S. 495 (1976)............................................................................................65

Maynard v. Hill, 125 U.S. 190 (1888)............................................................................................31

McLaughlin v. Florida, 379 U.S. 184 (1964)............................................................................................87

Mem’l Hosp. v. Maricopa Cnty., 415 U.S. 250 (1974)............................................................................................93

Meyer v. Nebraska, 262 U.S. 390 (1923)......................................................................................31, 42

Miranda v. Arizona, 384 U.S. 436 (1966)............................................................................................41

Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982)............................................................................................91

Moore v. East Cleveland, 431 U.S. 494 (1977)......................................................................................42, 43

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TABLE OF AUTHORITIES (continued)

Page(s)

Orr v. Orr, 440 U.S. 268 (1979)................................................................................29, 89, 92

Palmore v. Sidoti, 466 U.S. 429 (1984)............................................................................................71

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007)............................................................................................40

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)......................................................................................31, 42

Planned Parenthood v. Casey, 505 U.S. 833 (1992)....................................................................37, 39, 43, 46, 80

Plessy v. Ferguson, 183 U.S. 557 (1896)............................................................................................91

Plyler v. Doe, 457 U.S. 202 (1982)..........................................................................52, 55, 79, 80

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972)..............................................................................................93

Prince v. Massachusetts, 321 U.S. 158 (1944)......................................................................................31, 42

Reed v. Reed, 404 U.S. 71 (1971)........................................................................................29, 48

Republican Party of Minn. v. White, 536 U.S. 765 (2002)............................................................................................76

Rice v. Cayetano, 528 U.S. 495 (2000)............................................................................................40

Richardson v. Ramirez, 418 U.S. 24 (1974)..............................................................................................95

Romer v. Evans, 517 U.S. 620 (1996).....................................................................................passim

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Rosenblatt v. Baer, 383 U.S. 75 (1966)..............................................................................................38

Schmerber v. California, 384 U.S. 757 (1966)............................................................................................41

Schuette v. Coal. to Defend Affirmative Action, 185 L. Ed. 2d 615 (U.S. Mar. 25, 2013) .............................................................70

Shelley v. Kraemer, 334 U.S. 1 (1948)................................................................................................87

Skinner v. Oklahoma, 316 U.S. 535 (1942)......................................................................................44, 92

Snyder v. Phelps, 131 S. Ct. 1207 (2011)........................................................................................85

Stenberg v. Carhart, 530 U.S. 914 (2000)............................................................................................42

Sweatt v. Painter, 339 U.S. 629 (1950)............................................................................................29

Taylor v. Louisiana, 419 U.S. 522 (1975)......................................................................................28, 29

Tex. Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)................................................................................................67

Trop v. Dulles, 356 U.S. 86 (1958)..............................................................................................41

Truax v. Corrigan, 257 U.S. 312 (1921)............................................................................................41

Turner v. Safley, 482 U.S. 78 (1987)............................................................................35, 36, 37, 76

United States v. Carolene Prods. Co., 304 U.S. 144 (1938)............................................................................................82

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United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952)..............................................................................................52

United States v. Virginia, 518 U.S. 515 (1996).....................................................................................passim

United States v. Windsor, 133 S. Ct. 2675 (2013).................................................................................passim

Washington v. Glucksberg, 521 U.S. 702 (1997)............................................................................................46

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)............................................................................................70

Wayte v. United States, 470 U.S. 598 (1985)............................................................................................89

Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972)......................................................................................79, 80

Williams v. Illinois, 399 U.S. 235 (1970)............................................................................................67

Zablocki v. Redhail, 434 U.S. 374 (1978).....................................................................................passim

UNITED STATES COURT OF APPEALS CASES
Cmty. House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) ..............................................................................4
Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466 (6th Cir. 2012) ..............................................................................70
Gutierrez v. McGinnis, 389 F.3d 300 (2d Cir. 2004) ...............................................................................52

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Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ............................................................................55

High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) .......................................................................passim

In re Levenson, 560 F.3d 1145 (9th Cir. EDR Op. 2009) ............................................................86

Jones v. Bates, 127 F.3d 839 (9th Cir. 1997) ..............................................................................96

Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005) ............................................................................56

Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054 (9th Cir. 2013) ............................................................................16

Massachusetts v. U.S. Dep’t of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012)...................................................................................79

Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) ..............................................................................51

Perry v. Proposition 8 Official Proponents, 587 F.3d 947 (9th Cir. 2009) .......................................................................passim

Pickup v. Brown, Nos. 12-17681, 13-15023, 2013 U.S. App. LEXIS 18068 (9th Cir. Aug. 29, 2013) ......................................................................................................53, 56,

Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1992) ............................................................................51

Rhoades v. Avon Prods., Inc., 504 F.3d 1151 (9th Cir. 2007) ............................................................................16

Sethy v. Alameda Cnty. Water Dist., 545 F.2d 1157 (9th Cir. 1976) ............................................................................52

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Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) ............................................................................56

Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) ........................................................................55, 57

Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ...............................................................................49

Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ......................................................50, 51, 52, 63, 64

UNITED STATES DISTRICT COURT CASES
Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010)...........................................................79, 81
Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .........................................................passim
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ...................................................49, 50, 86
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012)....................................................72, 73, 78
Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013) .......................34
Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012)..........................................................passim
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .........................................................passim

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STATE CASES
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ....................................................................................86
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ...........................................................................95
Garden State Equal. v. Dow, No. MER L-1729-11, slip op. (Sup. Ct., Mercer Cnty. Div. Sept. 27, 2013) ...................................................................................................................19
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) .............................................................................98
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .............................................................................passim
Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008) ....................................................................28, 50, 85
St. Mary v. Damon, No. 58315, 129 Nev., Advance Opinion 68 (Oct. 3, 2013)................................83
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) .......................................................................49, 85

FEDERAL STATUTES 5 U.S.C. § 5583(a) ...................................................................................................19 5 U.S.C. § 8901........................................................................................................19 5 U.S.C. § 8905........................................................................................................19 8 U.S.C. § 1186a ......................................................................................................19 11 U.S.C. § 101(14A) ..............................................................................................19
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11 U.S.C. § 507(a)(1)(A) .........................................................................................19

11 U.S.C. § 523(a) ...................................................................................................19

17 U.S.C. § 101........................................................................................................22

26 U.S.C. § 105........................................................................................................19

26 U.S.C. § 106(a) ...................................................................................................19

28 U.S.C. § 1257(2) .................................................................................................95

28 U.S.C. § 1292(a)(1)...............................................................................................4

28 U.S.C. § 1331........................................................................................................3

28 U.S.C. § 1343........................................................................................................3

29 U.S.C. § 1163......................................................................................................19

29 U.S.C. § 1167(3) .................................................................................................19

38 U.S.C. § 103(c) ...................................................................................................22

42 U.S.C. § 416(h)(1)(A)(ii) ....................................................................................21

42 U.S.C. § 3796(a) .................................................................................................19

42 U.S.C. § 3796d(3) ...............................................................................................19

42 U.S.C. § 3796d-1(a)(1) .......................................................................................19

Defense of Marriage Act (DOMA), 1 U.S.C. § 7 .............................................passim

Family Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. ..............................22

STATE STATUTES Nev. Rev. Stat. § 41.270 ..........................................................................................25 Nev. Rev. Stat. § 41.280 ..........................................................................................25
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Nev. Rev. Stat. § 122.010 ..................................................................................23, 84

Nev. Rev. Stat. § 122.020(1)..........................................................................5, 11, 89

Nev. Rev. Stat. § 122.040 ........................................................................................11

Nev. Rev. Stat. § 122.064 ........................................................................................11

Nev. Rev. Stat. § 122.173 ........................................................................................11

Nev. Rev. Stat. § 122.240 ........................................................................................11

Nev. Rev. Stat. § 122A.010 ...............................................................................12, 13

Nev. Rev. Stat. § 122A.100 .........................................................................12, 13, 23

Nev. Rev. Stat. § 122A.200 ....................................................................13, 14, 54 82

Nev. Rev. Stat. § 122A.300 .....................................................................................24

Nev. Rev. Stat. § 122A.500 .....................................................................................21

Nev. Rev. Stat. § 123.070 et seq. .............................................................................13

Nev. Rev. Stat. § 123.220 et seq. .............................................................................13

Nev. Rev. Stat. § 123A.010 et seq. ..........................................................................13

Nev. Rev. Stat. § 125.010 et seq. .............................................................................13

Nev. Rev. Stat. § 125.150 et seq. .............................................................................13

Nev. Rev. Stat. § 613.330 ........................................................................................54

Nev. Rev. Stat. § 651.050(3)....................................................................................85

Nev. Rev. Stat. § 651.070 ..................................................................................54, 85

Washoe Cnty, Nev., Code § 5.460...........................................................................11

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CONSTITUTIONAL AUTHORITIES Nev. Const. art. 5 .....................................................................................................11 Nev. Const. art. 1, § 21 ..................................................................................5, 11, 89 U.S. Const. amend. I ..........................................................................................84, 85 U.S. Const. amend. IV .............................................................................................41 U.S. Const. amend. V.........................................................................................41, 45 U.S. Const. amend. VIII...........................................................................................41 U.S. Const. amend. XIV ...................................................................................passim

REGULATIONS 26 C.F.R. § 1.106-1 (1960) ......................................................................................19 28 C.F.R. § 32.3 .......................................................................................................19 28 C.F.R. § 32.33 .....................................................................................................19 29 C.F.R. § 825.102 .................................................................................................22

RULES 9th Cir. R. 28-2.7 .......................................................................................................5 Fed. R. App. P. 4........................................................................................................4 Fed. R. App. P. 43......................................................................................................6 Fed. R. Civ. P. 12 .................................................................................................6, 17

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OTHER AUTHORITIES
78 Fed. Reg. 57,067 (Sept. 17, 2013) ......................................................................21
78 Fed. Reg. 54,633 (Sept. 5, 2013) ........................................................................21
Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994) ...........................................88
Br. on the Merits for Resp’t the Bipartisan Legal Advisory Group of the U.S. House of Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 280 ...............64, 65, 68, 84
Dep’t of Health & Human Servs., “Impact of United States v. Windsor on Skilled Nursing Facility Benefits . . .” (Aug. 29, 2013) .....................................20
Dep’t of Labor, “Technical Release No. 2013-04, Guidance to Employee Benefit Plans on the Definition of ‘Spouse’ and ‘Marriage’ under ERISA . . .” (Sept. 18, 2013)...........................................................................................20
Dep’t of Labor, Wage & Hour Div., “Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act” (August 2013)................20
Dep’t of State, “U.S. Visas for Same-Sex Spouses, FAQs for Post-Defense of Marriage Act” ...........................................................................................20, 21
Erwin Chemerinsky, Constitutional Law: Principles and Policies, § 10.1.1.....92, 93
The Federalist No. 1 (Alexander Hamilton) ............................................................40
The Federalist No. 39 (James Madison) ..................................................................40
Internal Revenue Serv., “Treasury and IRS Announce That All Legal SameSex Marriages Will Be Recognized for Federal Tax Purposes . . .” (Aug. 29, 2013) .............................................................................................................20
Markus Dirk Dubber, Toward a Constitutional Law of Crime and Punishment, 55 Hastings L.J. 509 (2004).....................................................39, 40
Mary Ann Case, Marriage Licenses, 89 Minn. L. Rev. 1758 (2005)......................34 -xvi-

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Michael J. Meyer, Kant’s Concept of Dignity and Modern Political Thought, in 8 Hist. of Eur. Ideas 319 (1987) .....................................................................40

Office of Gov’t Ethics, “LA-13-10: Effect of the Supreme Court’s Decision in United States v. Windsor on the Executive Branch Ethics Program,” at 2 (Aug. 19, 2013) ................................................................................................20

Office of Pers. Mgmt., “Benefits Administration Letter” (July 17, 2013) ..............19

Opinions of the Justices to the Senate, 440 Mass. 1201 (2004) ..............................27

Thomas Paine, Rights of Man (Gregory Claeys ed., Hackett Pubs. 1992) (1791) ..................................................................................................................57

William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433 (1986)...............................57

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INTRODUCTION This case arises from the exclusion of same-sex couples in Nevada from one of the most profound and cherished relationships in life: civil marriage. Two of the plaintiffs, Beverly Sevcik and Mary Baranovich, met decades ago when they lived across the street from one another. After spending many months talking and visiting, Beverly realized she had fallen in love with Mary — and Mary felt the same way. They exchanged rings on October 2, 1971, to symbolize their lifelong commitment to one another. More than forty years later, Mary and Beverly are grandparents living in Carson City, Nevada. Mary has “tremendous respect and admiration” for Beverly and “cannot imagine life without her.” Beverly loves, admires, and respects so many things about Mary that she “could not possibly list them all.” They have stood by one another “through the joys and struggles of life,” and have shown time and again that their commitment to one another is truly “’til death do us part.”1 Despite this commitment, Beverly and Mary cannot get married in Nevada. They were turned away by the Carson City Marriage Bureau when they applied for a marriage license.2 Although they can (and have3) registered as domestic partners,
1 Excerpts of Record (“ER”) 180–181 ¶¶ 2, 7–8, 185 ¶ 2, 186 ¶ 8 (beginning of Beverly and Mary’s relationship); 181 ¶ 9, 186 ¶ 9 (exchange of rings); 180 ¶¶ 4– 5, 181 ¶ 8, 186–187 ¶ 9 (Beverly and Mary’s status as grandmothers); 182 ¶¶ 11– 12, 187 ¶ 10 (Beverly and Mary’s feelings about each other). 2 ER 182–183 ¶ 14; 187–188 ¶ 13.
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domestic partnership is different than marriage. As the Supreme Court recently reaffirmed, marriage confers “a dignity and status of immense import” that uniquely provides not only government but also community “recognition” and “protection” of couples and their families. United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). It also confers a status recognized in over a thousand federal statutes, many intended to support family stability. And it has been recognized, in numerous opinions of the Supreme Court, as a fundamental right that may be a core component of an individual’s pursuit of happiness.
Nevada denies same-sex couples access to marriage by constitutional amendment and statute. Defendants enforce their “marriage ban” both by barring same-sex couples from entering marriage, and by refusing to recognize marriages validly entered in other jurisdictions. But as the Supreme Court has acknowledged, treating the relationships of same-sex couples differently has the “purpose and practical effect . . . to impose a disadvantage, a separate status, and so a stigma.” Id. at 2693.
This case, arising under the federal Equal Protection and Due Process Clauses, was brought by Beverly and Mary and seven other same-sex couples whose relationships have flourished for a combined total of more than 100 years. Most of the couples have children, ranging from toddlers to middle-aged, and other
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couples are planning to have children soon. Some couples live near the Vegas
Strip surrounded by dozens of wedding chapels, some live in northern Nevada
amidst the Sierra Madres. Some have been married in other jurisdictions, some are
registered as domestic partners in Nevada, and some are waiting for state-
sanctioned rights until marriage is legal in their home state. One thing unites all of these couples: They wish to be married in the State of Nevada.4
The district court rejected Beverly, Mary, and the other Plaintiffs’ claims
primarily on the ground that, if same-sex couples were permitted to marry, “it is
conceivable that a meaningful percentage of heterosexual persons would cease to
value the civil institution as highly as they previously had and hence enter into it
less frequently . . . because they no longer wish to be associated with the civil
institution as redefined,” ER 32 — in other words, that some might not want to join
the club if “those people” are admitted. This appeal followed.
JURISDICTIONAL STATEMENT The United States District Court for the District of Nevada (the “district
court”) had original subject matter jurisdiction of this matter under 28 U.S.C. §§
1331 and 1343 because the case raises claims under the Constitution of the United 4 See ER 179–88 (declarations of Beverly Sevcik and Mary Baranovich); 189–98 (declarations of Theodore Small and Antioco Carrillo); 199–207 (declarations of Karen Goody and Karen Vibe); 208–215 (declarations of Greg Flamer and Fletcher Whitwell); 216–223 (declarations of Mikyla and Katrina Miller); 224–231 (declarations of Adele and Tara Newberry); 232–239 (declarations of Caren and Farrell Cafferata-Jenkins); 240–248 (declarations of Sara Geiger and Megan Lanz).
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States. Ruling on cross-motions for summary judgment, the district court issued a
decision on the merits and ordered entry of judgment on November 26, 2012.
Judgment was entered and Plaintiffs filed a notice of appeal on December 3, 2012.
The appeal is timely under Fed. R. App. P. 4(a)(1)(A). This Court has jurisdiction
pursuant to 28 U.S.C. § 1292(a)(1).
STATEMENT OF THE ISSUES 1. Whether the district court erred in holding that federal due process
guarantees do not secure the freedom to marry for same-sex couples in Nevada, or
require that their valid marriages from other jurisdictions be recognized as marriages in Nevada.5
2. Whether the district court erred in rejecting Plaintiffs’ claim that
excluding same-sex couples from marriage in Nevada, or from having their valid
marriages from other jurisdictions recognized as marriages in Nevada, violates the
federal right to equal protection regardless of one’s sexual orientation. This claim
was raised by Plaintiffs in their complaint, briefed by the parties on the merits, and
decided in the district court’s decision. ER 717–22 ¶¶ 86–103. 5 While Plaintiffs did not raise this claim below, the district court ruled on the issue regardless, ER 29, rendering appellate review of that ruling appropriate. See, e.g., Citizens United v. FEC, 558 U.S. 310, 323 (2010) (“Citizens United raises this issue for the first time before us, but we consider the issue because it was addressed by the court below.”) (internal quotation marks omitted); Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2007) (“even if a party fails to raise an issue in the district court, we generally will not deem the issue waived if the district court actually considered it”).
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3. Whether the district court erred in rejecting Plaintiffs’ claim that excluding same-sex couples from marriage in Nevada, or from having their valid marriages from other jurisdictions recognized as marriages in Nevada, violates the federal right to equal protection regardless of one’s sex. This claim was raised by Plaintiffs in their complaint, briefed by the parties on the merits, and decided in the district court’s decision. ER 13–16; 719–20 ¶¶ 86–94; 721 ¶¶ 97–98, 100; 722 ¶¶ 104–05.
The Court’s review of these issues is de novo. See Section I, below. ADDENDUM OF PERTINENT AUTHORITIES
Pursuant to Ninth Circuit Rule 28-2.7, Appellants have reproduced pertinent constitutional and statutory provisions in an Addendum to this brief.
STATEMENT OF THE CASE Plaintiffs (collectively, “Plaintiffs” or “Plaintiff Couples”) filed suit against Governor Brian Sandoval and three city and county clerks (“Defendant Officials”) on April 10, 2012 challenging “Nevada Constitution article 1, § 21, Nevada Revised Statutes § 122.020, and all other sources of state law that preclude marriage for same-sex couples or prevent recognition of marriages because those marriages were entered by individuals of the same sex.” ER 719 ¶ 89.6 Plaintiff

6 The district court puzzlingly stated that, aside from the Nevada constitutional and statutory ban on marriage for same-sex couples, “Plaintiff [Couples] do not appear to challenge any other provisions of Nevada law,” ER 12, overlooking
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Couples sought injunctive and declaratory relief to redress the violation of their rights under the Fourteenth Amendment to the United States Constitution. ER 723 ¶¶ A–C. The Coalition for the Protection of Marriage, which was the proponent of the Nevada constitutional amendment banning access to marriage, moved to participate as a Defendant-Intervenor (“Intervenor”). Dist. Ct. Dkt. 307; ER 3.
Governor Sandoval moved to dismiss the case, arguing solely that the district court lacked subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) to hear Plaintiff Couples’ claims based on the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.). Dist. Ct. Dkt. 32. The district court, without explanation, subsequently recast this as a motion under Rule 12(b)(6). ER 4–5. Carson City Clerk-Recorder Alan Glover joined Governor Sandoval’s motion. Dist. Ct. Dkt. 33. Clark County Clerk Diana Alba and Washoe County Clerk Nancy Parent8 filed answers to the complaint. Dist. Ct. Dkt. 34, 35. Ms. Parent’s answer indicated “that she has no intention to defend the

Plaintiffs’ allegations that they challenge all sources of state law restricting them from marriage, or from having a valid marriage from another jurisdiction recognized. ER 719 ¶¶ 88–89; 723 ¶¶ A–B.
7 All “Dkt.” references are to filings in the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”). All “Dist. Ct. Dkt.” references are to filings in the district court.
8 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Washoe County Clerk Nancy Parent is substituted for her predecessor, Amy Harvey.
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substantive merits of this case,” Dist. Ct. Dkt. 35 at 2, and neither Ms. Alba nor Ms. Parent has submitted any substantive filings since.
On August 10, 2012, at the hearing that had been scheduled on both the motion to intervene and the motion to dismiss, the parties entered stipulations into the record expressing their agreement to defer argument and decision on the motion to dismiss for consideration with additional dispositive motions, and to proceed with a schedule for cross-motions for summary judgment. ER 644–45. Plaintiffs agreed to withdraw their opposition to intervention as of right but reserved the ability to revisit the issue at a later stage if necessary. ER 644-46.
The district court issued an order allowing the case to proceed accordingly and granted Intervenor’s request for intervention. Dist. Ct. Dkt. 67. Cross-motions for summary judgment were filed by Plaintiffs, Governor Sandoval, Defendant Glover, and Intervenor, Dist. Ct. Dkt. 72, 74, 85, and 86, and the district court ruled on all pending motions in a November 26, 2012 order.
In that order, the district court granted Defendant Sandoval and Glover’s motion to dismiss in part, finding that Plaintiff Couples’ claims were precluded by Baker v. Nelson, except to the extent that they relied on Romer v. Evans, 517 U.S. 620 (1996), which was decided after Baker. ER 11–12. The district court found that rational basis review governs Plaintiff Couples’ claim that the marriage ban violates guarantees of equal protection regardless of one’s sexual orientation. ER
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13. Applying this standard, the district court found that the marriage ban is supported by a governmental interest in the “protection of the traditional institution of marriage.” ER 30–31. The court also held that the “perpetuation of the human race depends upon traditional procreation between men and women,” and if samesex couples are permitted to marry it is “conceivable that a meaningful percentage of heterosexual persons” would see the institution as marred and “enter into it less frequently, . . . leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.” ER 32–33.
The district court rejected Plaintiff Couples’ claim that the marriage ban discriminates against them based on their sex in relation to the sex of their partner or spouse, because, according to the court, “it is homosexuals who are the target of the distinction here,” and not “members of a particular gender.” ER 15. Acknowledging that Plaintiff Couples had not raised a due process claim, ER 12, the district court ruled on the issue regardless, holding that the marriage ban does not deprive same-sex couples of the fundamental right to marry. ER 28–29.
In its November 26, 2012 order, the district court also granted Governor Sandoval, Defendant Glover, and Intervenor summary judgment, and denied

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Plaintiff Couples the same. ER 42.9 The court entered judgment, and Plaintiffs
noticed their appeal on December 3, 2012. ER 43–45. On December 5, 2012
Intervenor filed a petition for certiorari before judgment with the Supreme Court,
which was denied on June 27, 2013. Dkt. 3, 16.
STATEMENT OF FACTS I. PLAINTIFF COUPLES.
Each unmarried Plaintiff wishes to marry his or her one irreplaceable love in
life, and each married Plaintiff Couple wishes to be recognized as married in the
place they call home. ER 182–83 ¶ 14; 192 ¶ 12; 202 ¶ 11; 211 ¶ 12; 218 ¶¶ 6–7;
231 ¶11; 238 ¶¶ 8–9; 248 ¶¶ 12–13. Plaintiff Couples reflect the rich diversity of
Nevada and include two proud grandmothers to their four grandchildren, a social
worker for abused children and an advertising executive, a teacher and a non-profit
executive director who advocates for adults and children with HIV, professionals
in medical sales and financial advice, a couple who work together as a civil
litigator and an office manager, a Ph.D. student and a lawyer for low-income
clients, the executive director of Nevada’s ethics commission and the founder of a
9 The district court also denied Plaintiff Couples’ request to submit a reply brief and supplemental declarations. ER 42. The proposed reply brief and declarations sought to respond to, inter alia, new, unfounded attacks on Plaintiff Couples’ child welfare expert, which were raised for the first time in Intervenor’s summary judgment opposition. ER 46–130. The district court had informed the parties that it would accept reply briefs on summary judgment if needed to respond to new material, ER 655:18 – 656:5, and the district court erred in thereafter denying Plaintiff Couples the opportunity to do precisely that.
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sign language academy, and a professional flutist and a college music instructor. ER 180 ¶ 5; 186–87 ¶ 9; 190 ¶ 3; 195 ¶ 3; 200 ¶ 3; 204 ¶ 3; 209 ¶¶ 5–6; 213 ¶ 4; 217 ¶ 3; 221 ¶ 3; 225 ¶ 3; 229 ¶ 3; 233 ¶ 3; 237 ¶ 5; 241 ¶ 4; 246 ¶ 4. All couples have devoted years of their lives to each other, with relationships ranging from six to more than forty years together. See, e.g., ER 180 ¶ 2; 190 ¶ 2. Six couples are raising or have raised children together, and others plan to adopt in the near future. ER 186–87 ¶ 9; 191 ¶ 9; 210 ¶ 8; 218 ¶ 8; 226 ¶ 8; 237 ¶ 5; 247 ¶ 8.
The enforcement of the marriage ban denies Plaintiff Couples access to marriage — the venerated hallmark of a couple’s commitment to build a family life together. This denial touches every aspect of their lives. Some Plaintiffs have encountered medical professionals who tried to block them from their partner’s bedside during medical emergencies, or made clear that one partner could be dismissed from the hospital room at staff whim. ER 218 ¶ 6; 222 ¶ 10; 242 ¶ 11; 247 ¶ 8. Other Plaintiff Couples have struggled to obtain health insurance or equal treatment by government agencies and businesses. ER 218–19 ¶¶ 8–9; 222 ¶¶ 9, 11; 229–30 ¶¶ 7–9; 234–35 ¶¶ 7–8; 238 ¶ 10; 247–48 ¶¶ 10–11. Plaintiffs routinely struggle to correct confusion about the nature, depth, and permanence of their relationships in work, family, and doctor’s office settings because they cannot honestly state that they are married in Nevada. ER 182 ¶ 13; 192 ¶ 11; 197 ¶ 10; 201–02 ¶¶ 9–10; 206–07 ¶¶ 11, 13–14; 214 ¶ 9; 226–27 ¶¶ 10. Even children
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understand that marriage is a cherished status in society. The State’s consignment of same-sex couples to a second-class status, therefore, sends profoundly hurtful messages to Plaintiffs’ children, teaching them that their families do not deserve the same societal status and respect as others. ER 191–92 ¶ 9; 196 ¶ 8; 210–11 ¶ 11; 214 ¶ 8; 218 ¶ 8; 231 ¶ 11; 238 ¶ 10; 242–43 ¶ 12. II. NEVADA’S AND DEFENDANT OFFICIALS’ EXCLUSION OF SAME-SEX
COUPLES FROM MARRIAGE. Nevada’s exclusion of same-sex couples from marriage is enshrined both in state constitutional amendment and statute. Nev. Const. art. 1, § 21 (“Only a marriage between a male and female person shall be recognized and given effect in this state.”); Nev. Rev. Stat. § 122.020(1) (“a male and a female person . . . may be joined in marriage”). Defendant Officials play various roles in enforcing the marriage ban, including Governor Sandoval’s responsibility for executing the marriage ban, Nev. Const. art. 5, §§ 1, 7, and the roles of City and County Clerks Alba, Parent, and Glover in, inter alia, issuing marriage licenses, solemnizing marriages or certifying other persons to solemnize marriages, and maintaining records relating to marriage licenses, all in compliance with the marriage ban. Nev. Rev. Stat. §§ 122.040, 122.064, 122.173, 122.240; Washoe Cnty., Nev., Code § 5.460; Dkt. 34 ¶ 3; Dkt. 35 ¶ 15; ER 698–99 ¶¶ 14–15; 144 ¶¶ 1–2; 148–58; 182– 83 ¶ 14; 192–93 ¶ 12; 207 ¶¶ 15–16; 211 ¶ 12.

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Nevada’s constitutional amendment was enacted in 2002, after voters in the 2000 and 2002 general elections approved the initiative known as “Question 2” biennially, as required to amend the state constitution. ER 144 ¶¶ 3–4; 159–69. Some of the campaign messages used to persuade voters to amend the state constitution relied on false, stigmatizing messages that same-sex couples are inferior to different-sex couples, and that both the institution of marriage and children need to be protected from same-sex couples. For example, one 2002 flier urged voters to adopt the constitutional amendment by saying “Let’s not experiment with Nevada’s children.” ER 250 ¶ 2; 251–52. Intervenor, which managed the campaign, also issued a flier warning that, if same-sex couples could marry, “we would be unable to stop the proliferation of teaching that promotes homosexuality in our schools.” ER 250 ¶ 3; 253–56.
Nevada’s public policy now, however, recognizes that committed same-sex couples should be treated equally with respect to virtually every state law right and responsibility Nevada affords spouses.10 Enacted in 2009, the Nevada Domestic Partnership Act (the “Act”) allows same-sex couples who have “chosen to share one another’s lives in an intimate and committed relationship of mutual caring” to

10 As described further below, domestic partners are treated differently in the way they must register with the State, as compared to solemnizing a marriage, and with respect to adopting a common last name.
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register with the State as domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010 et seq.11
The Act provides that registered domestic partners “have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon spouses.” Nev. Rev. Stat. § 122A.200(1)(a).12 Registered domestic partners thus assume rights and responsibilities related to, for example, community property and community debt, Nev. Rev. Stat. § 123.220 et seq.; pre-marital agreements, Nev. Rev. Stat. § 123A.010 et seq.; postnuptial agreements, Nev. Rev. Stat. § 123.070 et seq.; dissolution of the relationship in family court, Nev. Rev. Stat. § 125.010 et seq.; and spousal support obligations, Nev. Rev. Stat. § 125.150 et seq. The Act similarly provides the rights and responsibilities of former spouses to former domestic partners, and of surviving spouses to surviving domestic partners. Nev. Rev. Stat. § 122A.200(1)(b), (c).
11 Although different-sex couples may register as domestic partners, Nev. Rev. Stat. § 122A.100, they also are provided the choice to marry — an option denied same-sex couples. 12 As discussed below, however, by not allowing access to marriage itself Defendants preclude same-sex couples from being able to obtain the full panoply of federal rights and benefits afforded to married couples and their families.
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The Act expressly provides that the “rights and obligations of domestic partners with respect to a child of either of them are the same as those of spouses,” and includes the same protections for former or surviving domestic partners who are parents. Nev. Rev. Stat. § 122A.200(1)(d).
SUMMARY OF THE ARGUMENT Defendant Officials’ enforcement of the marriage ban inflicts serious, sweeping harms on Plaintiff Couples and their families. Same-sex couples’ exclusion from the institution of marriage brands them as less deserving of equal dignity and respect and demeans them and their children. The marriage ban also blocks same-sex couples from rights and responsibilities across the entire spectrum of federal law. Relegating same-sex couples to registered domestic partnership is no remedy. That novel, inferior status qualifies unmarried same-sex couples for virtually no federal benefits, and instead designates same-sex couples as secondclass citizens and subjects them to a host of practical difficulties and vulnerabilities. The marriage ban violates core principles of due process by depriving samesex couples of the fundamental right to marry. This fundamental right cannot be denied based on wordplay — the claim that Plaintiff Couples seek a different right of “same-sex marriage,” rather than the fundamental right to marry. Rather, the right has always been defined by its nature and not the identity of those who seek
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it. And lesbians and gay men, as Windsor and Lawrence v. Texas demonstrate, seek to create the enduring bonds that make a marriage. Excluding same-sex couples from marriage also impermissibly infringes upon the due process right to liberty, privacy, and autonomy in core personal decisions regarding intimate association, structuring one’s family, and child-rearing. Due process guarantees recognize that each individual’s essential dignity, worth, and independence is core to our system of ordered liberty. Windsor held that same-sex couples share in this right, by speaking of their right to “equal dignity.” The marriage ban violates all of these rights in the most manifest way.
Nevada’s marriage ban also violates same-sex couples’ right to equal protection without discrimination based on sexual orientation and sex. The ban should be subjected to heightened scrutiny on both grounds, because, as confirmed in case law and expert testimony, lesbians and gay men have faced a history of discrimination based on a fixed trait that is unrelated to the ability to contribute to society, and they remain politically vulnerable. The marriage ban should be subjected to heightened scrutiny also because it discriminates with respect to fundamental rights and liberty interests.
Defendant Officials’ exclusion of same-sex couples from marriage, however, cannot survive even rational basis review. Rational basis is not met when officials merely want to continue a historical practice of discrimination, or
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because of a baseless private view that marriage equality tarnishes the institution of marriage. Different-sex couples’ decisions about whether to marry or have children are not affected by whether same-sex couples may share in the celebrated institution of marriage. Instead, the marriage ban serves only to punish the children of same-sex couples, depriving them of the myriad tangible benefits and societal status that accompany access to marriage. The expert testimony offered below and the consensus among all major medical and mental health organizations confirm that the children of same-sex and different-sex couples are equally welladjusted. Nevada already acknowledges that same-sex couples are worthy of parenting rights and responsibilities of spouses by providing those rights and responsibilities through registered domestic partnership.
ARGUMENT I. THE STANDARD OF REVIEW IS DE NOVO.
Although the district court erroneously ruled on Governor Sandoval and Defendant Glover’s motion to dismiss as if it had been raised under Rule 12(b)(6) instead of Rule 12(b)(1), ER 4, this Court reviews motions under both Rules de novo. Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir. 2007) (“We review de novo dismissals under Rules 12(b)(1) and 12(b)(6).”). The Court also reviews “de novo a district court’s grant or denial of summary judgment.” LopezValenzuela v. County of Maricopa, 719 F.3d 1054, 1059 (9th Cir. 2013).
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II. NEVADA’S MARRIAGE BAN INFLICTS PROFOUND HARMS UPON SAME-SEX COUPLES AND THEIR CHILDREN, AND SHUNTING SAME-SEX COUPLES INTO REGISTERED DOMESTIC PARTNERSHIPS DOES NOT CURE THESE HARMS. The district court failed to appreciate the extraordinary injuries inflicted by
the marriage ban. See, e.g., ER 29 (minimizing the burdens imposed by the marriage ban on Plaintiff Couples). Those harms have only increased — in fact, exponentially — since Section 3 of the federal Defense of Marriage Act (“DOMA”) was held unconstitutional. The marriage ban now subjects unmarried same-sex couples to the same deprivation of federal rights and responsibilities that Windsor held unconstitutional, imposes practical hardships on same-sex couples, and inflicts dignitary harms on same-sex couples and their families.
A. The Marriage Ban Deprives Same-Sex Couples’ Families of a Sweeping Safety Net of Federal Protections.
On June 26, 2013, the Supreme Court found Section 3 of DOMA unconstitutional. Windsor, 133 S. Ct. at 2695–96. As a result, the federal government no longer treats the valid marriages of same-sex couples as nullities, or the spouses in those marriages as strangers to each other for all federal purposes. Windsor, 133 S. Ct. at 2695–96 (finding unconstitutional 1 U.S.C. § 7, which provided that for all federal purposes, “marriage” and “spouse” could only refer to different-sex married couples). DOMA’s effect was far-reaching, comprising “a directive applicable to over 1,000 federal statutes and the whole realm of federal

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regulations.” Id. at 2690; see also id. at 2694 (“Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.”).
Windsor confirmed both that our federalist system delegates authority to the states as gatekeepers to marriage, and that all marriage eligibility rules must comport with basic federal constitutional guarantees. Id. at 2691 (“[State marriage laws], of course, must respect the constitutional rights of persons, . . . but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”) (internal citation and quotation marks omitted). As the arbiter of which couples may be married in the State, Nevada thus holds the key to access for the sweeping array of spousal rights and responsibilities available under federal law, and keeps them locked away from same-sex couples under the marriage ban. By foreclosing same-sex couples from marriage, Nevada inflicts virtually the same collection of federal harms and deprivations on unmarried same-sex couples as DOMA previously did, since nearly all federal benefits are unavailable to unmarried couples, regardless of whether they are registered domestic partners. Same-sex couples married in other jurisdictions also face harms, as discussed below.
The federal benefits and obligations now barred to unmarried same-sex couples in Nevada include, for example, exemptions from income tax payments on
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health care coverage for a spouse, 26 U.S.C. §§ 105, 106(a), 26 C.F.R. § 1.106-1 (1960); access to COBRA coverage for a spouse and a spouse’s children, 29 U.S.C. §§ 1163(1)–(6), 1167(3); health insurance coverage for federal employees’ spouses, 5 U.S.C. §§ 8901(5), 8901(10), 8905; payment of money to a “widow or widower” of a deceased federal employee, 5 U.S.C. § 5583(a); certain public safety officers’ death benefits, 42 U.S.C. §§ 3796(a), 3796d(3), 3796d-1(a)(1), 28 C.F.R. §§ 32.3, 32.33; bankruptcy code protections for domestic-support obligations and other debts to a spouse or child, 11 U.S.C. §§ 101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15); and a citizen’s ability to sponsor a spouse for immigration purposes, 8 U.S.C. § 1186a. In addition, after Windsor a number of federal agencies have issued implementation guidance, and “the clear trend has been . . . to limit the extension of benefits to only those same-sex couples in legally recognized marriages.” Garden State Equal. v. Dow, No. MER L-1729-11, slip op. at 15 (Sup. Ct., Mercer Cnty. Div. Sept. 27, 2013), available at www.judiciary. state.nj.us/samesex/Decision_Summary_Judgment_and%20Order.pdf.13 The

13 The federal agencies that have extended benefits to only married same-sex couples include:
1. Office of Pers. Mgmt., “Benefits Administration Letter,” at 2 (July 17, 2013), available at http://www.opm.gov/retirement-services/publicationsforms/benefits-administration-letters/2013/13-203.pdf (“[S]ame-sex couples who are in a civil union or other forms of domestic partnership other than marriage will remain ineligible for most Federal benefits programs.”).
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2. Office of Gov’t Ethics, “LA-13-10: Effect of the Supreme Court’s Decision in United States v. Windsor on the Executive Branch Ethics Program,” at 2 (Aug. 19, 2013), available at www.oge.gov/OGE-Advisories/Legal-Advisories/LA-1310--Effect-of-the-Supreme-Court-s-Decision-in-United-States-v--Windsor-on-theExecutive-Branch-Ethics-Program (explaining that the term “spouse” does not “include a federal employee in a civil union, domestic partnership, or other legally recognized relationship other than a marriage”).
3. Internal Revenue Serv., “Treasury and IRS Announce That All Legal SameSex Marriages Will Be Recognized for Federal Tax Purposes . . .” (Aug. 29, 2013), available at http://www.irs.gov/uac/Newsroom/Treasury-and-IRS-Announce-ThatAll-Legal-Same-Sex-Marriages-Will-Be-Recognized-For-Federal-Tax-Purposes;Ruling-Provides-Certainty,-Benefits-and-Protections-Under-Federal-Tax-Law-forSame-Sex-Married-Couples (announcing equal federal tax treatment for same-sex spouses, clarifying that “the ruling does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law”).
4. Dep’t of Health & Human Servs., “Impact of United States v. Windsor on Skilled Nursing Facility Benefits . . .” at 1 (Aug. 29, 2013), available at http://www.cms.gov/Medicare/Health-Plans/HealthPlansGenInfo/Downloads/ SNF_Benefits_Post_Windsor.pdf (defining spouse to include only “individuals of the same sex who are lawfully married under the law of a state, territory, or foreign jurisdiction”).
5. Dep’t of Labor, Wage & Hour Div., “Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act,” at 2 (August 2013), available at http://www.dol.gov/whd/regs/compliance/whdfs28f.htm (clarifying that a spouse must be “recognized under state law for purposes of marriage in the state where the employee resides”).
6. Dep’t of Labor, “Technical Release No. 2013-04, Guidance to Employee Benefit Plans on the Definition of ‘Spouse’ and ‘Marriage’ under ERISA . . .” (Sept. 18, 2013), available at http://www.dol.gov/ebsa/newsroom/tr13-04.html (providing that same-sex spouses shall be recognized for purposes of ERISA, but not “individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union”).
7. Dep’t of State, “U.S. Visas for Same-Sex Spouses, FAQs for Post-Defense of Marriage Act,” available at http://travel.state.gov/visa/frvi/frvi_6036.html
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federal rights and responsibilities Nevada now denies these couples, like DOMA itself, burdens these couples’ lives “by reason of government decree, in visible and public ways . . . touch[ing] many aspects of married and family life, from the mundane to the profound.” Windsor, 133 S. Ct. at 2694.
Same-sex couples married in another state may be recognized — at most — as domestic partners under Nevada law, if they take the additional step of registering in compliance with the same rules for domestic partners (something not required of different-sex married couples). Nev. Rev. Stat. § 122A.500. But, even if married same-sex couples take that step, the language of a number of statutes and regulations governing access to certain federal rights and benefits (including family medical leave, certain copyright rights, and certain spousal veterans’ benefits) refer to whether an individual’s state of residence or domicile recognizes

(“[O]nly a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes.”).
Thus far, only the Department of Defense and Department of Veterans Affairs have suggested they may or will provide benefits more broadly than to validly married same-sex couples. See 78 Fed. Reg. 54,633 (Sept. 5, 2013); 78 Fed. Reg. 57,067 (Sept. 17, 2013) (to be codified at 38 C.F.R. pt. 17) (allowing domestic partners access to services, but only for certain kinds of counseling).
In addition, a mere handful of benefits may be available to same-sex registered domestic partners in Nevada, where the federal government also allows access based on a state’s laws of intestacy, but these are rare exceptions to the rule. See, e.g., 42 U.S.C. § 416(h)(1)(A)(ii) (defining family status for purposes of the Social Security Act).
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them as married.14 Nevada’s refusal to recognize marriages legally entered by
same-sex couples as marriages under Nevada law thus prevents those couples from
obtaining federal rights and benefits available to all other legally-married couples.
Countless of these rights have tangible and financial consequences for same-
sex couples and their families, in many instances depriving them of resources that
different-sex couples may use as a matter of course to support family needs, such
as their children’s education. See Windsor, 133 S. Ct. at 2695 (“DOMA also
brings financial harm to children of same-sex couples.”). Nevada’s marriage ban,
like DOMA before it, “writes inequality into the entire United States Code,” and
“divests married same-sex couples of the duties and responsibilities that are an
essential part of married life and that they in most cases would be honored to
accept.” Id. at 2694, 2695.
B. The Marriage Ban Visits a Host of Other Practical Harms and Difficulties upon Same-Sex Couples’ Families.
Nevada’s marriage ban “instructs all . . . officials, and indeed all persons
with whom same-sex couples interact, including their own children, that their
14 See, e.g., Family Medical Leave Act (“FMLA”) of 1993, 29 U.S.C. §§ 2601 et seq., 29 C.F.R. § 825.102 (defining “spouse” for purposes of the FMLA as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides”); 17 U.S.C. § 101 (“author’s ‘widow’ or ‘widower’ is the author’s surviving spouse under the law of the author’s domicile”); 38 U.S.C. § 103(c) (“In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid . . . according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.”).
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[relationship] is less worthy than the [relationships] of others.” See Windsor, 133
S. Ct. at 2696. This treatment frustrates same-sex couples’ goals and dreams,
personal happiness and self-determination, and it triggers disrespect in virtually
every sphere of their lives.15
For many, the pinnacle of entering married life is a wedding with loved ones
present to bear witness to their commitment. Conducted pursuant to the State’s
requirement that marriages be solemnized, these ceremonies carry not only deep
personal significance, but also the imprimatur of State approval. Nev. Rev. Stat.
§ 122.010(1). While many heterosexual couples remember their wedding day as
among the best in their life, there is no such ritual for domestic partnership, which
instead is done merely by filing a notarized form with the Secretary of State. Nev.
Rev. Stat. § 122A.100.16 Same-sex couples’ inability to marry also can negatively
affect how family and others view their relationship.17
15 See also ER 314 ¶¶ 38–40 (expert testimony reviewing a large body of research demonstrating that marriage fosters “psychological well-being, physical health, and longevity”). 16 See ER 192 ¶ 10 (when Plaintiffs Theodore Small (“Theo”) and Antioco Carrillo (“Antioco”) registered as domestic partners, it was a sterile process devoid of any celebration, and Theo “recall[s] standing in the middle of a bank lobby with our right hands raised to swear that the information on the form was true. That is not the equivalent of a wedding on any level, where two people take vows to love and care for each other in sickness and in health, through a public celebration that melds their families as one.”). 17 See ER 221–22 ¶ 8 (although Plaintiffs Mikyla Jewel Miller (“Mikyla”) and Katrina Miller (“Katie”) previously had a commitment ceremony with friends and
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In a further signal of the State’s official view that domestic partnerships are less significant and enduring, they may be summarily terminated through the Secretary of State, rather than through the family court proceedings required to dissolve a marriage. Nev. Rev. Stat. § 122A.300; ER 313–14 ¶ 36 (testimony of expert psychologist describing how barriers to ending a relationship increase couples’ likelihood of staying together).
Nevada law also denies registered domestic partners the same streamlined process for one partner to adopt the other’s surname, an important rite for many couples to signify to themselves, their children, and the community that they are forming a family. Unlike different-sex spouses, however, who may change a last name in connection with their marriage, registered domestic partners must obtain a court order. ER 234 ¶ 7; 143–44; 170–76. The partner wishing to adopt a common name must file a state court petition certifying that she is neither a felon

family, it was only after they were legally married in California that Mikyla’s parents began referring to Katie publicly as their daughter-in-law); ER 197 ¶ 10 (although Antioco’s family knows he and Theo are a couple, Antioco’s family “believes that marriage is the honorable way to show respect for your relationship and your intentions for the future, and our registered domestic partnership simply is not adequate to do that”); ER 202 ¶ 10 (Plaintiff Karen Goody’s testimony that, “Marrying [her partner Karen Vibe] would legitimize our relationship in the eyes of our family in a way that nothing else ever will”); ER 214 ¶ 9 (Plaintiff Fletcher (“Fletcher”) Whitwell’s mother acknowledges his brother’s wedding anniversary each year, but does not acknowledge any anniversary for Fletcher and his partner Greg Flamer (“Greg”), even though both couples have been together for the same amount of time).
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nor attempting to defraud creditors, and to publish notice of the petition in a newspaper. Nev. Rev. Stat. §§ 41.270, 41.280. As Plaintiff Caren CafferataJenkins testified, having to undertake this process “was a demeaning reminder of how lesbian and gay couples are treated as inferior to heterosexual couples: while heterosexual couples’ marriages are profiled in the society pages, lesbian and gay couples who merely want to change their names to unite their family must publicly attest that they are not criminals.” ER 234 ¶ 7.
The government is a powerful teacher of discrimination to others. Bearing the government’s imprimatur, Nevada’s marriage ban, and relegation of same-sex couples to the unfamiliar and lesser status of domestic partnership proliferates confusion and results in a wide range of harms.18 Many private entities defer to marital status in defining “family” for an array of important benefits, often excluding same-sex couples and their children from important safety nets such as private employer-provided health insurance for family members.19 The State also

18 See, e.g., ER 218–19 ¶ 8 (Mikyla and Katie had to struggle with hospital staff to have Katie listed as a parent on their child’s birth certificate as the domestic partnership law requires); ER 201 ¶ 9; ER 206 ¶ 131 (because Plaintiffs Karen Goody and Karen Vibe cannot use the word “spouse,” they find themselves repeatedly having to correct others’ mistaken assumption in workplace and social settings that they are merely business partners).
19 See ER 226–27 ¶ 12 (Plaintiffs Adele (“Adele”) and Tara (“Tara”) Newberry, whose valid marriage is not recognized in Nevada, have had to pay higher premiums for family health insurance than the insurer provides to different-sex spouses); ER 229–30 ¶¶ 7–8 (after hospital staff refused to list Tara on their birth
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encourages disrespect of committed same-sex couples and their children by others in workplaces, schools, businesses, and other major arenas of life, in ways that would be less likely to occur and more readily corrected if marriage were available to same-sex couples.
Children from a young age understand that marriage signifies an enduring family unit. They likewise understand when the State has deemed a class of families as less worthy than other families, undeserving of marriage, and not entitled to the same societal and governmental recognition and support as other families.20 Under Nevada’s marriage ban, same-sex couples and their children must live with the vulnerability and stress inflicted by the ever-present possibility that others may question their familial relationship — in social, educational, and

certificate for their first child, Tara went through a year-and-a-half ordeal with government agencies to obtain a birth certificate correctly listing her as the second parent; after the birth of the couple’s second child, hospital staff required Tara to leave the hospital to retrieve extensive documentation before she could be listed as a parent on the birth certificate).
20 See ER 210–11 ¶ 11 (Fletcher and Greg worry that as their toddler grows older she “will be deprived of a sense of normalcy and may feel socially outcast” because the government deems her parents unworthy of marriage); ER 242–43 ¶ 12 (Plaintiffs Sara Geiger (“Sara”) and Megan Lanz (“Megan”) fear that their young daughter will absorb the message that the State sees their family as inferior, and make it harder for her to feel “proud” of their family).
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medical settings and in moments of crisis — in a way that spouses can avoid by
simple reference to being married.21
C. The Marriage Ban Inflicts Profound Dignitary Harms upon Same-Sex Couples’ Families.
Marriage has been described by the Supreme Court as “one of the vital
personal rights essential to the orderly pursuit of happiness” and “the most
important relation in life.” Zablocki v. Redhail, 434 U.S. 374, 383, 384 (1978)
(internal quotation marks omitted).22 The California Supreme Court and numerous
21 See ER 222 ¶ 9 (as Katie testified, “People have questioned my status as a parent and often consider me A.L.M.’s stepparent rather than her mother. Some have challenged the veracity of my claim that Mikyla is my wife. I try to treat these moments as educational opportunities, but it can be frustrating and tiresome.”); ER 247 ¶ 8 (when Sara gave birth to the couple’s daughter, hospital staff said to Megan words to the effect of, “we don’t have to let you stay here, but we’re just going to look the other way”); ER 226 ¶ 10 (when Adele and Tara took one of their children to the emergency room, hospital staff asked which one of them was “the mom”; when they responded that they were both their child’s mother, the staff asked “which one is the real mom?”); ER 210 ¶ 9 (Greg carries a letter from an attorney with him at all times documenting his relationship as a father to his daughter, for fear that his relationship will be questioned). 22 See also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 970 (N.D. Cal. 2010) (“Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.”); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 417 (Conn. 2008). For similar reasons, the Massachusetts Supreme Judicial Court advised the state senate in 2004 — after the court had ruled that same-sex couples must be allowed to marry — that the senate could not implement the court’s ruling by merely providing civil unions. See Opinions of the Justices to the Senate, 440 Mass. 1201, 1207–08 (2004) (“The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex . . . couples to second-class status.”).
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other courts have held that domestic partnership cannot compare to marriage. In re Marriage Cases, 183 P.3d 384, 445 (Cal. 2008) (stating that because of the widespread understanding that marriage “describes a union unreservedly approved and favored by the community,” granting same-sex couples access “to only a novel alternative designation, realistically must be viewed as constituting significantly unequal treatment to same-sex couples”); ER 263 ¶ 9; 265 ¶ 12 (testimony of expert marriage historian about the unparalleled status marriage holds in society). The difference in stature also is borne out in different-sex couples’ preferences: In jurisdictions that allow both domestic partnerships and marriages, most eligible different-sex couples choose marriage. For example, in California in 2000, 98% of different-sex couples whose age allowed them to enter a domestic partnership were instead legally married. ER 360–62 ¶¶ 40–44 (expert testimony reviewing research that demonstrates domestic partnerships are widely viewed as less desirable than marriage).
The district court held that “[t]he State has not crossed the constitutional line by maintaining minor differences in civil rights and responsibilities . . . or by reserving the label of ‘marriage’ for one-man–one-woman couples in a culturally and historically accurate way.” ER 31. But it was also “culturally and historically accurate” that women could not serve on juries, be executors of estates, or pay alimony before those sex-based distinctions were held unconstitutional. See Taylor
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v. Louisiana, 419 U.S. 522, 531 (1975); Reed v. Reed, 404 U.S. 71, 77 (1971); Orr v. Orr, 440 U.S. 268, 283 (1979). Attempts to reserve a privileged status for a favored group through creation of a separate, inferior status for the excluded group have been rejected over several painful chapters in this country’s history. See, e.g., Sweatt v. Painter, 339 U.S. 629, 634 (1950); United States v. Virginia, 518 U.S. 515, 554 (1996). As the Supreme Court has “repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants” in the community, can cause serious “injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728, 739–40 (1984) (footnote and citations omitted).
Windsor powerfully answers the district court’s claim that consigning samesex couples to domestic partnership cures the constitutional violation. The Supreme Court’s observations about the effect of DOMA on same-sex couples’ valid marriages apply equally here: Nevada undermines “both the public and private significance” of same-sex couples’ relationships, “for it tells those couples, and all the world” that their relationships are “unworthy” of governmental recognition, and “places same-sex couples in an unstable position of being in a second-tier” relationship that “demeans the couple.” 133 S. Ct. at 2694.
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III. NEVADA’S MARRIAGE BAN VIOLATES SAME-SEX COUPLES’ FUNDAMENTAL RIGHTS AND LIBERTY INTERESTS, INCLUDING THEIR RIGHT TO EQUAL DIGNITY. By denying same-sex couples access to civil marriage and instead
consigning them to the novel, inferior status of domestic partnership, Defendant Officials violate Plaintiffs’ due process rights under the U.S. Constitution. Defendant Officials’ enforcement of the marriage ban denies Plaintiffs the fundamental right to marry, and the concomitant freedom to marry the spouse of their choice, free from interference from government. This fundamental right of liberty, privacy, and autonomy is defined by the attributes and singular status that attaches to marriage — not by the identity of the people who seek to exercise it or who have been excluded from doing so in the past. In addition, Defendant Officials’ enforcement of the marriage ban denies Plaintiff Couples equal dignity in contravention of the Fourteenth Amendment’s Due Process Clause, which does not permit the government to command whom individuals may or may not marry unless necessary to satisfy a compelling state interest. Nevadans are not mere instrumentalities of the State; they are autonomous individuals, with the right to build personal bonds of an enduring nature with those whom they choose, and to be free from stigma imposed by the government relegating one individual’s personal bonds to a less valuable status than another’s.

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A. The Marriage Ban Denies Same-Sex Couples the Fundamental Right to Marry and Other Important Liberty Interests.
“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.” Loving v. Virginia, 388 U.S. 1, 12 (1967). “Although Loving arose in the context of racial discrimination, prior and subsequent decisions of [the Supreme] Court confirm that the right to marry is of fundamental importance for all individuals.” Zablocki, 434 U.S. at 384; see also Maynard v. Hill, 125 U.S. 190, 205 (1888) (characterizing marriage as “the most important relation in life”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause).
The right to marry also is protected as part of the fundamental “right of privacy” implicit in the Due Process Clause. See Griswold v. Connecticut, 381 U.S. 479, 495 (1965) (Goldberg, J., concurring). “While the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage . . . .” Carey v. Population Servs. Int’l, 431 U.S. 678, 684–85 (1977). And the right to marry touches on other fundamental privacy rights, including decisions each individual makes about how to structure one’s family, see Prince v. Massachusetts, 321 U.S. 158, 166 (1944), and child-rearing and education, Pierce v. Soc’y of Sisters, 268 U.S. 510, 535
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(1925); see also Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974)
(“This Court has long recognized that freedom of personal choice in matters of
marriage and family life is one of the liberties protected by the Due Process Clause
of the Fourteenth Amendment”).
The Supreme Court has found numerous restraints on marriage and family
relationships to be unconstitutional — even some far less restrictive than Nevada’s
blunt, absolute denial of marriage to same-sex couples. Boddie v. Connecticut, for
example, held that filing fees for divorce actions violated the due process rights of
indigents unable to pay the fees, by burdening the freedom of indigents to marry
another person. 401 U.S. 371, 380–81 (1971). Similarly, in Zablocki, the Court
overruled a statute that required parents with existing child-support obligations to
show the parent was current on those obligations and obtain court approval, prior
to marriage. 434 U.S. at 375–77.23
23 The Zablocki Court distinguished another case, Califano v. Jobst, 434 U.S. 47 (1977), decided earlier the same term. In Jobst, the Court upheld certain sections of the Social Security Act providing for termination of a dependent child’s benefits upon marriage to a person not entitled to benefits. The Court in Jobst noted that the rule terminating benefits upon marriage was not “an attempt to interfere with the individual’s freedom to make a decision as important as marriage.” Id. at 54. The Zablocki Court noted further that the Social Security provisions “placed no direct legal obstacle in the path of persons desiring to get married, and . . . there was no evidence that the laws significantly discouraged, let alone made practically impossible, any marriages.” 434 U.S. at 387 n.12 (citation and quotation marks omitted). Here, of course, Nevada has made the marriages of certain people more than “practically” impossible, and so the regulation of marriage is direct and substantial.
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Indeed, the Supreme Court has not hesitated to strike down laws directly interfering with the freedom to marry, such as Nevada’s marriage ban, without a supportable basis, making clear that an essential part of the fundamental right to marry is the “freedom of choice” of whom to marry that “resides with the individual and cannot be infringed by the State.” Loving, 388 U.S. at 12. The freedom to marry without the freedom to choose one’s partner is no freedom to marry at all, because it robs marriage of the love and autonomy that are the center of that relationship. See Lawrence v. Texas, 539 U.S. 558, 567 (2003) (“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”). As the Supreme Court explained in Lawrence, “our laws and tradition afford constitutional protection to personal decisions relating to marriage . . . [and] family relationships” because of “the respect the Constitution demands for the autonomy of the person in making these choices” — and “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” 539 U.S. at 574.
To be sure, one could imagine a world where government is simply not necessary to marriage. “The state has been a relative latecomer in the regulation of marriage,” and only in the eighteenth century did marriage become more than “a
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purely private transaction.” Mary Ann Case, Marriage Licenses, 89 Minn. L. Rev. 1758, 1766 (2005). If the state did not hold a monopoly on authorizing marriage and divorce, individuals might be free to hold religious or secular ceremonies, hold themselves out as married, rear children, and otherwise live in an intimate relationship that is a fundamental part of the pursuit of happiness. But our history has played out differently. The state currently has a monopoly over both marriage and divorce. See Boddie, 401 U.S. at 375. The law determines, for example, whether society will recognize one partner as a widow or surviving spouse after death, see, e.g., Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013). Having assumed the monopoly over marriage from the individual, the state cannot deny it categorically to some of its citizens unless that is the least restrictive means of meeting the strongest of government interests, a test Defendant Officials cannot satisfy.
The Supreme Court has instructed states to beware of measures that would restrict the liberty of individuals to build important personal relationships. The right of all people to enter into intimate associations, and develop those associations into enduring bonds, cannot be lightly denied. See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (“Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society”) (internal quotation marks omitted). “This, as a
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general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Lawrence, 539 U.S. at 567.
There is no reason why same-sex partners are not capable of participating in matrimony. In Turner v. Safley, the Supreme Court held that the constitutional right to marry was available to prison inmates, notwithstanding the obvious limitations on a prisoners’ conduct. 482 U.S. 78 (1987). In so doing, the Court recognized the many fundamental aspects of marriage. These include “expressions of emotional support and public commitment,” 482 U.S. at 95, “an exercise of religious faith as well as an expression of personal dedication,” id. at 96, and the fact that marriage is “a pre-condition to the receipt of government benefits . . . property rights . . . and other, less tangible benefits (e.g., legitimation of children outside of wedlock).” Id. These “religious and personal aspects of the marriage commitment” are “important and significant” and, more importantly, protected by the Due Process Clause of the Fourteenth Amendment. Id. As the Court further explained in Zablocki:
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. 434 U.S. at 384 (quoting Griswold, 381 U.S. at 486).
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Lawrence, of course, established that same-sex partners suffer no disability preventing them from creating these enduring personal bonds. 539 U.S. at 567. Likewise, after Windsor it is beyond debate that those in same-sex relationships can benefit in multiple tangible and intangible ways from the protection and dignity that marriage affords. 133 S. Ct. at 2692. And the Court has never conditioned the right to marry on the power to “naturally” procreate. In Turner, 428 U.S. at 95, the Court extended the right to marry to individuals — inmates — who lack the present power to procreate with their spouse, and in Griswold, 381 U.S. at 485–86, the Court made clear that individuals have the right to choose to procreate or not regardless of whether they are married.
It is beyond cavil that there is a fundamental right to marry; countless pronouncements of the Supreme Court tell us so. The Supreme Court also warns against “attempts . . . to define the meaning of the relationship or to set its boundaries absent injury . . . .” Lawrence, 539 U.S. at 567. But Defendant Officials have not identified injury to the institution of marriage. Nor can they. Same-sex partners participate equally in the personal and spiritual aspects of marriage. They support each other in the same way different-sex partners do. And same-sex parents raise children next door to different-sex parents. Nevada recognized the absence of harm when it enacted the domestic partnership statute and when it afforded same-sex registered domestic partners all the same parenting
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rights and responsibilities as spouses. In the face of Supreme Court precedent, it is clear that Nevada cannot now directly and substantially restrict the liberties of Nevadans through the marriage ban.
The district court alluded to a question about whether it is the fundamental right to marry at stake, and not the “right to marry a person of the same sex,” ER 31, but fundamental rights are defined by what they are, not who can exercise them. This critical distinction — that history guides the what of due process rights, but not the who of which individuals have them — is central to due process jurisprudence. If it were otherwise, it would be difficult to square with Loving’s overruling — on due process grounds — of a statute outlawing interracial marriage. See Planned Parenthood v. Casey, 505 U.S. 833, 847–48 (1992) (“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving . . . .”). Supreme Court cases have not recast the fundamental right to marry as merely “the right to interracial marriage,” “the right to inmate marriage,” or “the right of people owing child support to marry.” See Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 983 n.5 (N.D. Cal. 2012) (citing Loving, 388 U.S. at 12); Turner, 482 U.S. at 94–96; Zablocki, 434 U.S. at 383–86. The same is true for

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Plaintiff Couples, who seek the fundamental right to marry — nothing more, and nothing less.
B. The Marriage Ban Improperly Infringes the Right to Equal Dignity.
“[T]he essential dignity and worth of every human being [is] a concept at the root of any decent system of ordered liberty.” Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring); see also William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 438 (1986) (stating that the Constitution “is a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law”).
The Constitution limits the scope of government’s intrusion into the decisions that men and women make about how to conduct their private lives, and how the government can treat individuals within our democratic system. The Supreme Court has recognized claims, rooted in both due process and equal protection, that involve fundamental limitations on the government’s power to strip individuals of their personal autonomy. These claims center around the extent to which the state may permissibly intrude on an intrinsically private and personal sphere of life.
The Supreme Court has recognized a protection of dignity as inherent in our constitutional structure, where dignity may be synonymous with or closely related
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to concepts of autonomy, Lawrence v. Texas, 539 U.S. 558, 562 (2003) (“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”); Casey, 505 U.S. at 851 (opinion of O’Connor, J., Kennedy, J., and Souter, J.) (“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”); freedom from government-endorsed stigma, Lawrence, 539 U.S. at 574–75 (discussing stigma created by criminalization of intimate contact by gay people); the freedom of individuals to an equal opportunity to achieve social status or rank, Windsor, 133 S. Ct. at 2689 (discussing New York’s decision to grant same-sex couples the right to marry “and so live with pride in themselves and their union and in a status of equality with all other married persons”); and the freedom of personal conscience, Casey, 505 U.S. at 851 (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”). At its heart, these concepts of dignity reflect an understanding that human beings ought never be treated as mere instruments of government, because men and women possess a dignity, autonomy, and individuality that is an essential component of humanity.24
24 This concept of dignity and the authority to govern one’s own existence was present at the founding on both sides of the Atlantic Ocean. See Markus Dirk Dubber, Toward a Constitutional Law of Crime and Punishment, 55 Hastings L.J.
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A protection of dignity need not always, but often may, intersect with the protection of equal protection. The Supreme Court has held, for instance, that “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 746 (2007) (quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000)); see also id. at 797 (Kennedy, J., concurring) (“To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society.”); Korematsu v. United States, 323 U.S. 214, 240 (1944) (Murphy, J., dissenting) (“To give constitutional sanction [to the detention of U.S. citizens of Japanese descent] . . . is to adopt one of the cruelest of rationales used by our enemies to destroy the dignity of the individual and to encourage and open

509, 542–43 (2004); Michael J. Meyer, Kant’s Concept of Dignity and Modern Political Thought, in 8 Hist. of Eur. Ideas 319, 327 (1987). Indeed, a Kantian notion that ties the rights of men as against the power of the government was celebrated by James Madison as “the capacity of mankind for self-government.” The Federalist No. 39 (James Madison); see also The Federalist No. 1 (Alexander Hamilton) (urging citizens to adopt the Constitution as “the safest course for your liberty, your dignity, and your happiness”); Thomas Paine, Rights of Man 41 (Gregory Claeys ed., Hackett Pubs. 1992) (1791) (arguing that the “natural dignity of man” was the reason to protect individual rights that transcend authoritative rule); id. at xvii (noting in introduction Thomas Jefferson’s positive reception to Paine’s views in the Rights of Man).
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the door to discriminatory actions against other minority groups . . . .”).25 The
overlap of due process and equal protection as mutually reinforcing guarantees
runs throughout federal jurisprudence, as explained further below in Section IV(D)
infra (describing the well-established principle that invidious discrimination with
respect to fundamental rights and liberty interests warrants heightened scrutiny).
See Truax v. Corrigan, 257 U.S. 312, 332 (1921) (holding the provisions “overlap”
such “that a violation of one may involve at times the violation of the other,
[though] the spheres of the protection they offer are not coterminous”). At least
one decision of the Supreme Court has also emphasized that dignity is an
overlapping concept, by equating it to “equal liberty,” a term that inherently
25 Dignity is a significant constitutional concept even outside equal protection and due process. For instance, the Supreme Court has noted, in holding that a particular punishment must conform to “evolving standards of decency,” that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” Trop v. Dulles, 356 U.S. 86, 100–01 (1958); see also Hope v. Pelzer, 536 U.S. 730, 745 (2002) (holding a particular punishment “antithetical to human dignity” because it was “degrading and dangerous”). The Court has also held that “the constitutional foundation underlying the privilege [against selfincrimination embodied by the Fifth Amendment] is the respect a government — state or federal — must accord to the dignity . . . of its citizens.” Miranda v. Arizona, 384 U.S. 436, 460 (1966). The Court has noted that the “overriding function” of the Fourth Amendment’s protection against unreasonable search and seizure is “to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 769–70 (1966) (“The interests in human dignity and privacy which the Fourth Amendment protects forbid [invasive behavior by the state].”). In the Fourth Amendment, thus, dignity is bound up with privacy. Although neither amendment is directly relevant in this case, the protections underlying these amendments emphasize a zone where the government has no right to intrude.
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embodies principles of both equal protection and due process. Stenberg v. Carhart, 530 U.S. 914, 920 (2000); see also Windsor, 133 S. Ct. at 2693 (explaining how DOMA interferes with “equal dignity” of marriages of same-sex couples).
The protection of human dignity creates both a zone of legitimate government interest, and a zone where government may not intrude. This concept of liberty has its roots in decisions of the Supreme Court protecting an individual’s right, for instance, to make personal and fundamental decisions in child-rearing free from government interference. See, e.g., Pierce, 268 U.S. at 535 (overruling state statute requiring children to attend public, not parochial schools, because of the autonomy of parent and child, and because the state may not “standardize its children” since “[t]he child is not the mere creature of the state”); Meyer, 262 U.S. at 399 (overruling state law prohibiting the education of children in the German language, because it interfered with an autonomy that is “essential to the orderly pursuit of happiness by free men.”) Indeed, courts have long recognized “the private realm of family life which the state cannot enter.” Prince, 321 U.S. at 166.26

26 In Moore v. East Cleveland, 431 U.S. 494 (1977), the Court reiterated this point with a caveat: “[T]he family is not beyond regulation.” Id. at 499. But the Court distinguished regulation that treats families equally, like those at issue in Prince, and those that “intrude[] on choices concerning family” where the court
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The protection of dignity has experienced its most profound and explicit expression when states have sought to regulate intimate associations. In Lawrence, the Court invalidated a statute criminalizing same-sex couples’ intimate relationships on the basis that the statute violated individuals’ due process rights. 539 U.S. 558. Significantly, the Court declined to rule on two, arguably narrower, grounds. The Court declined to conceive of the statute solely as a violation of privacy, id. at 564–65 (describing right to privacy but then considering the statute as a violation of general liberty), or as a violation solely of the equal protection rights of gay people who were specifically targeted by some sodomy statutes, such as one challenged in Texas, id. at 574–75. Instead, the Court overruled all remaining sodomy statutes, regardless of whether they targeted gay people alone, or physical intimacy by heterosexual couples too, based on a broader liberty interest involving “‘the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.’” Id. at 574 (quoting Casey, 505 U.S. at 851). These intimate choices, the Court continued, are critical if individuals are to “retain their dignity as free persons.” Id. at 567. In addition to an autonomy-based understanding of dignity, the Court also understood that dignity is the antithesis of government-sponsored stigma, resting its ruling in part on how this particular statute essentially labeled all gay people as criminals, “with
“must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.” Id.
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all that imports for the dignity of the persons charged.” Id. at 575. And
irrespective of whether the statutes applied to homosexual or heterosexual sodomy,
they sought “to control a personal relationship that . . . is within the liberty of
persons to choose without being punished as criminals.” Id. at 567. The Court
held:
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries . . . . It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Id.
The Supreme Court emphasized the important relationship between marriage
and dignity in Windsor.27 New York “sought to protect . . . personhood and
dignity” by granting to all couples the right to marry. 133 S. Ct. at 2696. That
liberty to marry “conferred upon” same-sex couples “a dignity and status of
immense import,” and, when New York so conferred that right, it “enhanced the

27 This connection also was made, or at least implied, by Justice Jackson’s concurrence in Skinner v. Oklahoma, 316 U.S. 535 (1942). Justice Jackson noted that “[t]here are limits to the extent to which a legislatively represented majority may conduct biological experiments,” in that case the forced sterilization of inmates, “at the expense of the dignity and personality and natural powers of a minority.” Id. at 546 (Jackson, J., concurring).
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recognition, dignity, and protection of the class in their own community.” Id. at 2692. DOMA, by contrast, caused an “injury and indignity” to “an essential part of the liberty” protected by the Due Process Clause of the Fifth Amendment. Id. DOMA thus “interfere[d] with the equal dignity of same-sex marriages.” Id. at 2693.
Cases surrounding marriage for same-sex couples in California similarly ground the right to marry as governed by a right to dignity. In first holding that marriage for same-sex couples is a protected right under the California Constitution, the California Supreme Court observed that “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . . are so integral to an individual’s liberty and personal autonomy” that these “core substantive rights include . . . the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” Marriage Cases, 183 P.3d at 399 (emphasis in original). The Court elaborated,
One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic
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designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. Id. at 400. The California Supreme Court thus understood dignity as being inherently opposed to stigmatization by being accorded a different designation and a right to stand on equal footing. In sum, the liberty interest in possessing mutual rights and responsibilities, respected on equal footing with heterosexual counterparts, represents the zone where government may not tread. To be sure, dignity is not a limitless concept. See Washington v. Glucksberg, 521 U.S. 702 (1997) (declining to find a right to assistance from others in order to die a dignified death). While the Supreme Court has sometimes allowed states to regulate the ability to enlist other individuals to assist with the exercise of a right, e.g., Glucksberg, the Supreme Court has recognized the right of individuals to directly exercise an important right — which is at issue in this case too. See, e.g., Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990) (assuming “that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition” and thereby to end one’s life). Moreover, the heart of this dignity right has always been described as the right to make “‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.’” Glucksberg, 521 U.S. at 726 (quoting Casey, 505 U.S. at 851). There is little
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question, therefore, that impositions on marriage, family relationships, and childrearing of the kind at issue here clearly impinge on Plaintiff Couples’ dignity rights.
Marriage is a key, personal, and individual decision, and the protections of the Constitution shield individuals against having the government as their matchmaker. The dignity right certainly provides that the State cannot tell individuals that they can get married, but only to a person of a certain race. See Loving v. Virginia, 388 U.S. 1 (1967).28 But the dignity right goes further than that. Absent narrow tailoring to a compelling government interest, Nevada likewise could not decree that its citizens could only marry other Nevadans, or only marry nonNevadans, or only marry persons from their own counties. Still less can Nevada

28 The Court held:
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. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Loving, 388 U.S. at 12.
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deprive lesbians and gay men of any opportunity to marry, or to be recognized as married, to their one cherished partner in life.29
Of course, as noted, the protection of dignity under the Due Process Clause carries extra force. In Lawrence, for instance, the Court emphasized that the imposition of a law with discriminatory impact bore special consideration under a due process analysis. 539 U.S. at 575. There, the Court held that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Id. Nevada’s decision to ban marriage for same-sex couples “demeans the lives of homosexual persons,” id., and it is fundamentally outside the role of any State to demean the lives of any person with respect to decisions fundamental to that person’s autonomy and self-determination. IV. NEVADA’S MARRIAGE BAN VIOLATES THE FOURTEENTH AMENDMENT’S
GUARANTEE OF EQUAL PROTECTION. Nevada’s marriage ban violates the central command of the Fourteenth Amendment’s Equal Protection Clause that “all persons similarly circumstanced shall be treated alike.” Reed, 404 U.S. at 76 (internal quotation marks omitted).

29 It is thus no answer, as was argued below, that each of the plaintiffs here can get married, so long as they choose to marry a person of the different sex. It is not the government’s province to limit such decisions, unless Defendant Officials and Intervenor meet their burden of demonstrating that limitation is the least restrictive way of achieving a compelling state interest.
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The ban violates equal protection guarantees on three principal grounds. First, it classifies same-sex couples for differential treatment based on their sexual orientation, warranting heightened scrutiny or, at a minimum, meaningful rational basis review. Defendant Officials’ exclusion of same-sex couples from marriage cannot, however, survive even the most glancing review for the reasons described below. Second, the marriage ban discriminates against same-sex couples based on their sex in relation to their cherished life partner or spouse, requiring heightened review. Third, the marriage ban discriminates with respect to Plaintiff Couples’ exercise of fundamental rights and liberty interests, also warranting heightened review.
A. Heightened Review Applies to Sexual Orientation Discrimination. A growing number of federal courts have recognized that any faithful application of the test for heightened constitutional review requires such scrutiny for sexual orientation classifications. Windsor v. U.S., 699 F.3d 169, 181 (2d Cir. 2012); Pedersen v. Ofc. of Pers. Mgmt., 881 F. Supp. 2d 294, 333 (D. Conn. 2012); Golinski, 824 F. Supp. 2d at 989; In re Balas, 449 B.R. 567, 573–75 (Bankr. C.D. Cal. 2011) (decision of 20 bankruptcy judges); Perry, 704 F. Supp. 2d at 997.30 As
30 A number of state courts have reached the same conclusion. Varnum v. Brien, 763 N.W.2d 862, 885–96 (Iowa 2009); Marriage Cases, 183 P.3d at 442–45; Kerrigan, 957 A.2d at 432–61.
Notably, the Second Circuit’s heightened scrutiny finding was squarely presented for the Supreme Court’s review in Windsor, which neither overruled nor
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explained further below, the level of review remains unsettled in this Court’s jurisprudence and the district court erred in concluding that the traditional hallmarks of heightened scrutiny do not apply to sexual orientation. Additionally, as Witt found by looking to Lawrence, this Court should find that Windsor’s “careful consideration” of the sexual orientation classification in that case requires at least some form of heightened review here. Witt v. Dep’t of Air Force, 527 F.3d 806, 819 (9th Cir. 2008).
1. No Ninth Circuit precedent forecloses heightened scrutiny. Other than a cursory citation to earlier opinions in a limited context, this Court last examined the level of scrutiny for sexual orientation classifications 23 years ago in High Tech Gays v. Defense Industrial Security Clearance Office. 895 F.2d 563, 571 (9th Cir. 1990). That precedent and its progeny, however, are no longer sound and do not bind this Court. High Tech Gays rested in part on the since-overruled Bowers v. Hardwick, 478 U.S. 186 (1986), concluding that laws classifying lesbians and gay men for adverse treatment are not subject to heightened scrutiny “because homosexual conduct can . . . be criminalized.” Id. at 571. But Lawrence definitively renounced that premise. 539 U.S. at 578 (“Bowers
even expressed doubt about the holding. Compare Windsor, 133 S. Ct. at 2684 (noting that the Second Circuit had “applied heightened scrutiny to classifications based on sexual orientation, as both the Department [of Justice] and Windsor had urged”) with City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442 (1985) (expressly overruling the Fifth Circuit’s ruling that classifications based on developmental disabilities should receive intermediate scrutiny).
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was not correct when it was decided, and it is not correct today.”). Where an intervening decision of a higher court is clearly irreconcilable with a Ninth Circuit decision, “a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).31 In fact, this Court has interpreted High Tech Gays itself as applying something more than traditional rational basis review. See Pruitt v. Cheney, 963 F.2d 1160, 1165–66 (9th Cir. 1992) (“it is clear that [in High Tech Gays] we applied the type of ‘active’ rational basis review employed by the Supreme Court in City of Cleburne v. Cleburne Living Center, Inc.”). Pruitt noted that High Tech Gays had engaged in a heightened form of review “despite our conclusion that Bowers v. Hardwick . . . militated against a higher level of scrutiny.” Id. at 1166 n.5. In light of Bowers’ demise, some form of heightened review is even more appropriate here.
This Court did not decide whether sexual-orientation classifications are subject to heightened review in Witt, 527 F.3d 806, which involved a challenge to the military’s defunct “Don’t Ask, Don’t Tell” (“DADT”) policy for gay service
31 The district court misunderstood this argument, which is not that Lawrence “adopt[ed] a[] standard of review applicable to distinctions drawn according to sexual orientation,” as the district court said. ER 16–17. Rather, Plaintiff Couples argue that to the extent High Tech Gays relied on Bowers, that analysis simply is no longer applicable law.
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members. Instead, the Court merely noted in a single sentence — in the context of
the military, where judicial deference “is at its apogee” — that if rational basis
review were applied, DADT would survive that inquiry. Id. at 821; see also id. at
823–24 (Canby, J., concurring in part, dissenting in part) (noting that Major Witt
did not pursue an equal protection claim comparing differential treatment of gay
people to heterosexuals, instead preserving it for en banc review).32
2. Although this Court already has found a history of discrimination against gay people, the district court refused to follow that holding.
While no single consideration is dispositive, see Mass. Bd. of Ret. v. Murgia,
427 U.S. 307, 321 (1976), the presence of any heightened scrutiny consideration is
a sign that the particular classification is more likely “to reflect deep-seated
prejudice rather than legislative rationality in pursuit of some legitimate objective.”
Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).
32 Witt did not hold, as the district court suggested, that “High Tech Gays survived Lawrence.” ER 17. Rather, Witt noted prior Ninth Circuit authority that DADT survives rational basis review, and assumed without deciding that such analysis applied. 527 F.3d at 821. Where the Court assumes a legal principle without expressly addressing it, subsequent panels remain free to consider the merits of the issue anew in a subsequent case. See Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (where prior cases have not “squarely addressed . . . and have at most assumed the applicability” of the relevant standard, “we are free to address the issue on the merits”) (superseded by statute on other grounds, as stated in Gutierrez v. McGinnis, 389 F.3d 300, 304 (2d Cir. 2004)); United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (holding that where an issue was not “raised in briefs or argument nor discussed in the opinion of the Court . . . the case is not a binding precedent on this point”); Sethy v. Alameda Cnty. Water Dist., 545 F.2d 1157, 1159–60 (9th Cir. 1976) (en banc).
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Both the evidence and settled law recognize that lesbians and gay men have been subjected to a long and painful history of discrimination. ER 391–426 (testimony of expert historian); High Tech Gays, 895 F.2d at 573 (“homosexuals have suffered a history of discrimination”); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009) (observing that defendants would be “hard pressed to deny that gays and lesbians have experienced discrimination in the past in light of the Ninth Circuit’s ruling in High Tech Gays”); Pickup v. Brown, Nos. 12-17681, 13-15023, 2013 U.S. App. LEXIS 18068, at *8–9 (9th Cir. Aug. 29, 2013) (describing history of efforts to change individuals’ sexual orientation, instituted at a time when homosexuality was considered a mental illness, including inducing nausea, vomiting, or paralysis; providing electric shocks; and castration); Lawrence, 539 U.S. at 571 (“for centuries there have been powerful voices to condemn homosexual conduct as immoral”).
Pronouncing itself bound by High Tech Gays, the district court nonetheless rejected High Tech Gays’ holding that gay people have suffered a history of discrimination. ER 19. Citing no authority, the district court improvised a novel standard regarding history of discrimination, insisting that because “homosexuals do not in effect inherit the effects of past discrimination through their parents,” “it is contemporary disadvantages that matter” most, and that “[a]ny such disabilities with respect to homosexuals have been largely erased since 1990.” ER 19. No
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federal case supports the district court’s invention, which defeats the very purpose of historical discrimination as a consideration. The district court also ignored the sweeping discrimination against gay people in the decades after 1990, which saw some of the most virulent targeting of gay people at the ballot box and state houses and produced patently unconstitutional laws such as those finally reversed in Romer, Windsor, and Perry.
3. Sexual orientation is not related to the ability to contribute to society.
Rather than resting on “meaningful considerations,” Cleburne, 473 U.S. at 441, laws that discriminate based on sexual orientation, like laws that discriminate based on race, national origin, or sex, target a characteristic that “bears no relation to ability to perform or contribute to society.” Id. (internal quotation marks omitted). This principle is embedded in Nevada’s state public policy, which recognizes that in every realm of life — from employment to family life, to daily transactions in society — sexual orientation discrimination has no place. See Nev. Rev. Stat. §§ 613.330, 122A.200, 651.070. This view is the consensus among mainstream social scientists, and was confirmed most recently by Windsor. See ER 311–12 ¶ 29–31; 353 ¶ 14; Windsor, 133 S. Ct. at 2694 (affirming that samesex couples are equally worthy of the federal responsibilities of marriage, which, as well as rights, “enhance the dignity and integrity of the person”).

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4. Sexual orientation is a core, defining, and immutable characteristic.
Sexual orientation classifications violate the fundamental principle that
burdens should not be distributed — particularly by a majority that would not
inflict them upon itself — on “groups disfavored by virtue of circumstances
beyond their control.” Plyler, 457 U.S. at 216 n.14. Courts have considered a trait
“immutable” when altering it would “involve great difficulty, such as requiring a
major physical change or a traumatic change of identity,” or when the trait is “so
central to a person’s identity that it would be abhorrent for government to penalize
a person for refusing to change [it].” Watkins v. U.S. Army, 875 F.2d 699, 726 (9th
Cir. 1989) (Norris, J., concurring); Golinski, 824 F. Supp. 2d at 987; Pedersen, 881
F. Supp. 2d at 326.
Although federal equal protection doctrine never has treated the immutability of a personal trait as a prerequisite for heightened scrutiny,33 this
Court has held and reaffirmed that sexual orientation should be considered
immutable. See, e.g., Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.
2000) (“Sexual orientation and sexual identity are immutable; they are so
33 Laws that classify based on religion, alienage, and legitimacy all are subject to some form of heightened scrutiny, despite the fact that religious people may convert, undocumented people may naturalize, and illegitimate children may be adopted. See Windsor, 699 F.3d at 181 (holding that immutability and relative political powerlessness are not necessary factors for identifying a suspect classification; collecting authorities).
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fundamental to one’s identity that a person should not be required to abandon them.”) (overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005)); Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (affirming that sexual orientation is “a fundamental aspect of . . . human identity”); see also Perry, 704 F. Supp. 2d at 966 (after a 12-day trial, finding that “[n]o credible evidence supports a finding that an individual may . . . change his or her sexual orientation”).
This understanding follows the settled consensus of the major professional psychological and mental health organizations. Pickup, 2013 U.S. App. LEXIS 18068, at *13 (describing “the well documented, prevailing opinion of the medical and psychological community that SOCE [sexual orientation change effort] has not been shown to be effective and that it creates a potential risk of serious harm”);34 ER 310–11 ¶¶ 26–27 (psychologist’s expert testimony that “[s]exual orientation is highly resistant to change” and “there is no credible evidence that [sexual orientation change efforts] are . . . effective”); see also generally ER 308–11 ¶¶

34 The Court explained that this overwhelming consensus is documented in materials “published by . . . the American Psychological Association, the American Psychiatric Association, the American School Counselor Association, the American Academy of Pediatrics, the American Medical Association, the National Association of Social Workers, the American Counseling Association, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, and the Pan American Health Organization.” Id., 2013 U.S. App. LEXIS 18068, at *13.
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21–28. But “[s]cientific proof aside, it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation.” Watkins, 875 F.2d at 726 (Norris, J., concurring) (emphasis in original).
Yet, the district court relied on High Tech Gays, ER 13, 16–20, which found that sexual orientation is “behavioral,” rather than a deeply rooted, immutable characteristic warranting heightened judicial protection. 895 F.2d at 573. But the Supreme Court has authoritatively rejected this artificial distinction, noting that its “decisions have declined to distinguish between status and conduct in th[e] context” of sexual orientation. Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010); see also Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (a law criminalizing same-sex intimacy is “targeted at more than conduct . . . [i]t is instead directed toward gay persons as a class”). Conditioning equal treatment on the sacrifice of a trait so fundamental to individual conscience ignores the Supreme Court’s recognition that same-sex couples in a “relationship may seek autonomy for these purposes, just as heterosexual persons do.” Lawrence, 539 U.S. at 574; see also Windsor, 133 S. Ct. at 2696 (holding that same-sex couples who have married should not have to abandon their commitment to each other to receive equal federal treatment).

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5. The District Court erred by ruling that relative political powerlessness requires a group’s chances of legislative success to be “virtually hopeless.”
Two key errors infect the district court’s holding that political powerlessness precludes heightened scrutiny for sexual orientation. First, the district court distorted the weight of this element, which is not required for heightened scrutiny. ER 25; 20 (describing relative political powerlessness as not only “a critical factor,” but also the one that figured “[m]ost importantly” in the district court’s analysis). While the political powerlessness of a group “may be relevant, . . . that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates.” Cleburne, 473 U.S. at 472 n.24 (Marshall, J., concurring and dissenting). For this reason the Supreme Court repeatedly has referred to this requirement in the disjunctive: “a suspect class is one saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Murgia, 427 U.S. at 313 (emphasis added) (internal quotation marks omitted); Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (referring to whether a group is “a minority or politically powerless”) (citing Murgia, 427 U.S. at 313–14) (emphasis added).

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Second, the district court ignored the governing standard for this element, improvising its own requirement that a group be “so weak and ineffective as to make attempts to succeed democratically utterly futile,” and show its “chances of democratic success [to] be virtually hopeless.” ER 22; 28. But when the Supreme Court has considered this element, the Court always has examined relative, not absolute, political powerlessness, i.e., whether the “discrimination is unlikely to be soon rectified by legislative means.” Cleburne, 473 U.S. at 440 (emphasis added); Windsor, 699 F.3d at 184 (“The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination.”).
The Supreme Court’s analysis of race- and sex-based classifications clearly illustrates this point. Korematsu v. United States applied heightened review to race-based classifications, even though race discrimination was prohibited by three federal constitutional amendments and federal civil rights enactments dating back to 1866. 323 U.S. at 216; ER 473–74 ¶¶ 85–86. When the Supreme Court applied heightened review to sex-based discrimination in Frontiero v. Richardson, Congress had already “manifested an increasing sensitivity to sex-based classifications” by enacting protections under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, and by approving the federal Equal Rights
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Amendment for ratification by the states. 411 U.S. 677, 685–687 (1973) (plurality); see also ER 472 ¶ 83. In stark contrast, gay people lack any express statutory protections from discrimination in employment, housing, or public accommodations at the federal level, and the majority of states still offer no express protection in any of those spheres. ER 416 ¶ 77; 417 ¶ 80.35 Moreover, the relevant inquiry is not just the degree of current political powerlessness; the Supreme Court has reaffirmed application of heightened scrutiny to race- and sexbased classifications despite still further political progress by racial minorities and women. See United States v. Virginia, 518 U.S. at 524; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).36

35 The district court tries to explain away Frontiero by noting that women were previously denied the right to vote, serve on juries, and own property, and faced discrimination based on the “high visibility” of one’s sex. ER 24–25. But as heightened scrutiny of legitimacy-based classifications illustrates, none of these historical features are required. Moreover, the fact that sexual orientation can be concealed points to political vulnerability rather than strength; the decision to hide one’s sexual orientation — an understandable one given the severe societal approbation one may face — dampens the community’s ability to mobilize and attract allies. ER 463–65 ¶¶ 57–64. See also ER 460–72 ¶¶ 49–81 (expert political scientist’s testimony about the many systemic barriers contributing to gay people’s marked disparity in political power).
36 The district court contorts the analysis by looking to Nevada’s antidiscrimination statutes, ER 20, 22, 24, but the examination of a federal equal protection claim looks to the relative political powerless of a group nationally, not in any one state. To perform the analysis differently might lead to varying conclusions state-by-state, which plainly is not consistent with equal protection jurisprudence. See, e.g., Frontiero, 411 U.S. at 685–88 (examining the relative
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High Tech Gays is not dispositive on the issue. High Tech Gays’ conclusion that lesbians and gay men are too politically powerful to warrant heightened protection is irreconcilable with the Supreme Court’s treatment of race- and sexbased classifications, and was so even when High Tech Gays was decided. Compare Frontiero, 411 U.S. at 685, 686 n.17 (finding that women still faced barriers in the political arena, even though “the position of women in America has improved markedly in recent decades” and “viewed in the abstract, women do not constitute a small and powerless minority”) with High Tech Gays, 895 F.2d at 574 n.10 (holding that gay people had demonstrated power through the enactment of limited anti-discrimination statutes in three states, and a smattering of governor’s executive orders and local ordinances). Since then, however, the nation has seen widespread and virulent political backlash against lesbians and gay men — with the Hawaii Supreme Court’s 1993 decision about marriage for same-sex couples spawning a reaction that led to the adoption of DOMA and state constitutional amendments barring marriage equality in three-fifths of the states. ER 459 ¶ 45.
Rather than affording lesbians and gay men effective means to protect themselves from discrimination, the legislative process has in some ways uniquely disadvantaged them. No other group has been stripped so persistently of basic

political powerlessness of women generally, without regard to the fact that the suit arose in Alabama).
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antidiscrimination and family protections through the legislative and initiative process. ER 459 ¶ 44 (according to testimony of expert political scientist, “the initiative process has now been used specifically against gay men and lesbians more than against any other social group”); cf. Romer, 517 U.S. at 634 (considering one of these measures, the Supreme Court observed lesbians and gay men constitute a “politically unpopular group”) (internal quotation marks omitted).
B. At a Minimum, Rational Basis Review of the Marriage Ban Must Be Meaningful, Although the Marriage Ban Cannot Withstand Any Form of Rational Review. 1. The Court must closely consider a law that targets and demeans a historically disfavored group, or impinges upon important relationships.
While any challenged law must, at a minimum, rationally relate to a legitimate government purpose, Defendant Officials’ class-based exclusion of Plaintiff Couples from marriage requires particularly meaningful review. As Justice O’Connor explained in Lawrence, the Supreme Court has applied “a more searching form of rational basis review” when a law exhibits “a desire to harm a politically unpopular group” or “inhibits personal relationships.” 539 U.S. at 580 (O’Connor, J., concurring); see also Kelo v. City of New London, 545 U.S. 469, 490–91 (2005) (Kennedy, J., concurring) (distinguishing between the rational basis test applied to “economic regulation” versus “a government classification that is

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clearly intended to injure a particular class of private parties”); Golinski, 824 F. Supp. 2d at 996.
Windsor powerfully reinforces this doctrine, reviewing DOMA with a form of “careful consideration” that clearly breaks from deferential rational basis review. To assess Windsor’s mode of analysis, this Court should engage in the same thoughtful inquiry as it did in Witt, where this Court “carefully” reviewed Lawrence “by considering what the Court actually did, rather than by dissecting isolated pieces of text.” Witt, 527 F.3d at 816 (emphasis in original); see also id. (holding that the Court “[could not] reconcile . . . Lawrence with the minimal protections afforded by traditional rational basis review”). Witt relied on three features of Lawrence to discern that the Supreme Court had applied something more than deferential rational basis review, all of which are shared by Windsor:
1) Witt noted that Lawrence focused on “the extent of the liberty at stake,” a consideration irreconcilable with rational-basis emphasis on judicial deference and interests conceived post hoc. 527 F.3d at 817. Windsor — which marries liberty and equality principles, and focuses on the extent of the harm to same-sex couples — shares this feature. 133 S. Ct. at 2693 (referring to a right of “equal dignity”); id. at 2692–96 (discussing extensively the scope of the harms DOMA inflicted on same-sex spouses, from dignitary injuries to the couple and their children, to other tangible and financial harms).
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2) Witt also noted that Lawrence relied on a number of cases that applied heightened scrutiny, and found particularly significant that Lawrence overturned Bowers because Bowers’ “‘continuance as precedent demean[ed] the lives of homosexual persons.’” Witt, 527 F.3d at 817 (quoting Lawrence, 539 U.S. at 575). Windsor similarly relied on Lawrence and focused heavily on the ways in which DOMA “demeans” same-sex couples. 133 S. Ct. at 2692, 2694.
3) Finally, Witt noted that Lawrence’s analysis was inconsistent with rational basis review because Lawrence “declared: ‘The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.’” Witt, 527 F.3d at 817 (quoting Lawrence, 539 U.S. at 578). Witt explained that were Lawrence “applying rational basis review, it would not identify a legitimate state interest to ‘justify’ the particular intrusion of liberty . . . [because] any hypothetical rationale for the law would do.” Id. Windsor uses very similar balancing-test language: “no legitimate purpose overcomes the purpose and effect to disparage and to injure” same-sex couples. 133 S. Ct. at 2696 (emphasis added). And unlike rational basis review, where “any hypothetical rationale . . . would do,” Windsor found several interests raised in DOMA’s defense — including those relating to procreation and child welfare — so inadequate that the Court did not even address them. See Br. on the Merits for Resp’t the Bipartisan Legal Advisory Group of the U.S. House of Representatives
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at 44–49, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (“Br. on the Merits for Resp’t BLAG”), 2013 U.S. S. Ct. Briefs LEXIS 280, at *74–82.
But even in the ordinary equal protection case “calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632. A governmental interest must, at a minimum, “find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S. 312, 321 (1993); Mathews v. Lucas, 427 U.S. 495, 510 (1976) (rational basis analysis is not “toothless”). These protections ensure that “classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633.
The district court erred in holding that the marriage ban can be justified by the tradition of privileging only different-sex couples with access to marriage, and by some individuals’ private dislike of gay people. ER 30–33. These rationales fail at the threshold because, as a matter of law, they are not even legitimate. Still other rationales raised by Defendant Officials and Intervenor lack any rational connection to the marriage ban. Nevada’s marriage ban thus utterly fails rational basis review, as described further below.

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2. Same-sex couples may not be barred from marriage merely to sustain the tradition of excluding them, or based on a private view that their inclusion mars the institution.
In sustaining the marriage ban, the district court primarily relied on two
rationales, both of which are not legitimate governmental purposes as a matter of
law. First, the district court held that Nevada can maintain “the traditional
institution of marriage” because a state is permitted to “prevent[] abuse of an
institution the law protects.” ER 30–31 (internal quotation marks omitted).
Second, the district court explained that:
Should [marriage] be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of- wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.
ER 32–33 (footnote omitted). As a matter of law, these purported interests are not
legitimate governmental purposes.
a. Tradition.
A tradition of a excluding a minority group merely describes rather than
explains the challenged practice, and is by itself insufficient to justify maintaining
a discriminatory classification. “[N]o one acquires a vested or protected right in
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violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.” Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989) (internal quotation marks omitted); see also Williams v. Illinois, 399 U.S. 235, 239 (1970) (holding that a law failed rational basis scrutiny even where the custom at issue “dates back to medieval England and has long been practiced in this country”). The Supreme Court has not hesitated to strike down “historic” laws targeting gay people, recognizing that the antiquity of such discrimination does not make it rational. Lawrence, 539 U.S. at 577–78 (recognizing that “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack”) (internal quotation marks omitted); Windsor, 133 S. Ct. at 2689 (finding that, notwithstanding a long history of discrimination against same-sex couples in marriage, DOMA violated equal protection guarantees).
Far from adhering to “tradition for the sake of tradition,” the institution of marriage has shed many inveterate discriminatory practices, including the doctrine of coverture (depriving wives of any separate legal or economic existence), the requirement of fault for divorce, and restrictions on interracial marriage. See generally ER 280–82 ¶¶ 73–83 (describing how marriage has thrived precisely

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because of its ability to adapt to changing societal needs).37 Nevada’s historical exclusion of same-sex couples from marriage thus speaks powerfully to the length of the injustice, not a reason to continue perpetrating it.
The district court relied on Justice O’Connor’s concurrence in Lawrence to bolster its ruling, but this does not sustain the district court’s conclusion. ER 30– 31 (citing 539 U.S. at 585 (referring to “preserving the traditional institution of marriage”)). Justice O’Connor referred opaquely to this potential state interest in her solo concurrence, but did not even speculate about its application in a future case. 539 U.S. at 585. Since then, the Supreme Court rejected precisely this argument in Windsor. Both the intervenor in that case and DOMA’s legislative history attempted to justify the law based on tradition. See Br. on the Merits for Resp’t BLAG at 10, 2013 U.S. S. Ct. Briefs LEXIS 280, at *25–26; 133 S. Ct. at 2693 (describing legislative references to “traditional heterosexual marriage”) (internal quotation marks omitted). The argument was sufficiently insubstantial that the majority opinion did not even dignify it with a response.

37 The district court’s invocation of the protection of traditional marriage is tinged with a certain irony, given Nevada’s unique history in the development of no-fault divorce laws in the country. In fact, Nevada was at the forefront of this trend, adopting laws in 1931 that made it the easiest venue in the nation to obtain a divorce, with only a six-week residency requirement and expanded grounds for divorce. ER 278–79 ¶¶ 68–69. “Reno and Las Vegas fueled the state’s economy by marketing nation-wide the availability there of quick and easy divorce, as well as quick and easy marriage.” ER 278–79 ¶ 68.
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b. Caution. Proceeding “cautiously” by continuing to deny equal treatment to an unpopular group also is not a legitimate state interest. Contrary to the district court’s suggestion, a law cannot be justified based on speculation that, absent any justification today, one may appear in the future. ER 33 (holding that the State could have reasoned that there may be future consequences from “altering the traditional definition of civil marriage”). See Pedersen, 881 F. Supp. 2d at 345–46 (“Categorizing a group of individuals as a ‘vast untested social experiment’ . . . to justify their exclusion, . . . until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, . . . would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted.”); Golinski, 824 F. Supp. 2d at 1001 (“Congress cannot, like an ostrich, merely bury its head in the sand and wait for [the purported] danger to pass, especially at the risk of permitting continued constitutional injury” upon same-sex couples). Even if proceeding cautiously were a legitimate interest, the State’s marriage ban does not rationally advance that interest. Nevada’s constitutional amendment adopted an absolute ban, unlimited in time, intended to erect a fundamental barrier

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to adoption of a different policy.38 In fact, the supporting ballot argument was that
existing statutes failed to do enough to exclude same-sex couples from marriage.
ER 144 ¶ 3–4; 159–62; 165–68. By enshrining the marriage ban in the State
Constitution, the voters did not enact a time-specific moratorium to allow more
study, but rather ensured a blunt, definitive prohibition that could not be changed
without “enlisting the citizenry of [Nevada] to amend the State Constitution,” yet
again. Romer, 517 U.S. at 631.39
c. Private bias.
The district court’s other primary rationale for upholding the exclusion of
same-sex couples from marriage must be unmasked for what it is: elevation of the
38 Nevada’s marriage ban also is constitutionally suspect because it locks samesex couples out of the normal political process, making it uniquely more difficult for them to secure access to marriage. Unlike a citizen seeking to effect a different change in Nevada’s marriage eligibility rules, such as lowering the age at which persons may marry without parental consent, same-sex couples are uniquely burdened with having to amend the Nevada constitution. It is well-established that imposing a selective disparity that disadvantages a targeted class in the ability to advocate for change in the law is constitutionally suspect. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 467–68 (1982); Hunter v. Erickson, 393 U.S. 385, 391 (1969); Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466, 477 (6th Cir. 2012) (en banc), cert. granted sub nom. Schuette v. Coal. to Defend Affirmative Action, 185 L. Ed. 2d 615 (U.S. Mar. 25, 2013). Nevada’s marriage ban is the kind of selective burden that “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.” Coal. to Defend, 701 F.3d at 470. 39 Neither the Defendants nor the district court has explained how Nevada’s decision to afford same-sex couples virtually all rights and responsibilities of spouses, while withholding only the honored designation of marriage, exhibits a “cautious” approach.
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private opposition of some into a “moral code” for all. See Lawrence, 539 U.S. at 571. The district court worried that if marriage included same-sex couples, some different-sex couples might shun it. ER 32. Such arguments have a disreputable pedigree. See Palmore v. Sidoti, 466 U.S. 429, 433–34 (1984) (collecting and denouncing cases in which state officials relied on private disquietude to defend a housing ordinance requiring segregation and delaying desegregation of city parks); United States v. Virginia, 518 U.S. at 543–45 (reviewing various prophecies that institutions would be degraded when forced to admit women to practice law, attend schools of law and medicine, and join police forces). The Supreme Court has not hesitated to reject these claims, recognizing that the “Constitution cannot control such prejudices but neither can it tolerate them,” and although private biases “may be outside the reach of the law, . . . the law cannot, directly or indirectly, give them effect.” Palmore, 466 U.S. at 433; see also Lawrence, 539 U.S. at 577 (“the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”) (internal quotation marks omitted).

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3. No additional rationales offered by Defendant Officials or Intervenor can survive rational basis review. a. Excluding same-sex couples from marriage promotes neither “responsible procreation” nor interests in child welfare, serving instead only to harm Plaintiff Couples’ children.
The district court’s primary concern about procreation was that affording same-sex couples the freedom to marry will somehow taint the institution for different-sex couples, causing them to “enter into it less frequently . . . leading to an increased percentage of out-of-wedlock children” and “single-parent families.” ER 32–33. But as described above, the private disapproval of a few is not a legitimate basis on which to govern all. The expert evidence introduced below established, and Windsor helps confirm, that although no one else’s children are harmed by allowing same-sex couples to marry, the marriage ban hurts same-sex couples’ children immeasurably. A law that accomplishes the opposite of its supposed purpose is the height of irrationality. While the district court relied primarily on the rationale that allowing same-sex couples to marry would sully marriage, driving different-sex couples to form their families outside of it, ER 32– 33, the court also cited Jackson v. Abercrombie with approval, id.; 884 F. Supp. 2d 1065 (D. Haw. 2012), and Plaintiff Couples accordingly address the reasoning in both decisions.

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i. Channeling procreation. The district court’s analysis of procreation is premised on the idea that
“[h]uman beings are created through the conjugation of one man and one woman,”
upon which the “perpetuation of the human race depends,” and that marriage by same-sex couples would threaten that regime. ER 31–32.40 Jackson relied on the
notion that maintaining “the prestige and social significance of marriage” — by
excluding same-sex couples — might induce different-sex couples to marry and
thus increase the likelihood of children being raised within marriage. 884 F. Supp.
2d at 1112. The theory posits that those who may “accidentally” conceive
particularly need inducements to marry, while those who plan for children, such as
same-sex couples, do not require the same support and protections.
But the idea that allowing same-sex couples to marry would somehow make
different-sex couples less likely to have children, or less likely to do so within the
bounds of marriage, is unworthy of credence. In fact, neither the district court nor
any other party has offered a wisp of explanation about how bolting the doors of
marriage to same-sex couples would affect the profound, life-altering decision by
different-sex couples to wed — either before, after, or in the absence of children — 40 The district court belittlingly refers to same-sex couples’ means of creating their families (means also used by many different-sex couples) as merely “a social backstop for when traditional biological families fail.” ER 32. But Windsor confirms that these children, regardless of their means of conception, are no less sheltered by constitutional guarantees protecting their dignity. 133 S. Ct. at 2694– 96.
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aside from the offensive suggestion that excluding same-sex couples makes marriage more desirable to different-sex couples. ER 32–33.
A host of courts have concluded that it is nonsensical to suggest that a heterosexual person — otherwise on bended knee and poised to propose lifelong matrimony — would abandon marriage or flee the institution simply because same-sex couples are allowed to marry. See, e.g., Perry, 704 F. Supp. 2d at 972 (“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”); Golinski, 824 F. Supp. 2d at 998 (“Denying federal benefits to same-sex married couples has no rational effect on the procreation and child-rearing practices of opposite-sex married (or unmarried) couples.”); Windsor, 699 F.3d at 188 (“DOMA does not provide any incremental reason for opposite-sex couples to engage in ‘responsible procreation.’ Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.”) (footnotes omitted).
The argument that preventing same-sex couples from marriage causes more heterosexual couples to marry is not only impossible to credit, but also disproven by the evidence. As the expert testimony below demonstrated, the factors that contribute to the stability or instability of different-sex relationships (such as communication styles and ways of handing conflict) or that contribute to divorce
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(such as age at marriage) are well-understood, and function independently of whether same-sex couples may marry. ER 141 ¶ 6; 321 ¶ 59. Allowing same-sex couples to marry, as thirteen states and the District of Columbia currently do, has not adversely affected the institution of marriage. ER 140–41 ¶ 5.
Equally important, reducing the significance of marriage to merely the regulation of sexual relations diminishes its unparalleled role in civic society — and cannot be harmonized with either its historical development or contemporary reality. Just as Lawrence found that Bowers had demeaned same-sex couples by reducing their family relationships to “the right to engage in certain sexual conduct,” rather than “a personal bond that is more enduring,” it similarly “would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 U.S. at 567; see also Griswold, 381 U.S. at 486 (“[M]arriage is an association that promotes a way of life, . . . a harmony in living, . . . [and] a bilateral loyalty.”).
Procreation is not now, nor has it ever been, “the prime mover in states’ structuring of the marriage institution in the United States.” ER 269 ¶ 26. No state in the country has barred couples either unwilling or unable to produce children from marriage. ER 268 ¶ 24. Rather, as an expert marriage historian testified below, marriage has served throughout American history to create stable households, create public order and economic benefit, legitimate children, assign
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providers to care for dependents and limit the public’s liability for them, facilitate property ownership and inheritance, and facilitate governance. ER 267–68 ¶¶ 20– 23. All of these interests apply equally to same-sex couples, making the effort to apply a procreation-based conception of marriage to gay people alone (and not any others such as the elderly, the infertile, or the sterile) all the more indefensible. See Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002) (holding that a law may be “so woefully underinclusive as to render belief in [its purported] purpose a challenge to the credulous”); Lawrence, 539 U.S. at 604 (Scalia, J., dissenting) (“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”) (internal citation omitted); Eisenstadt v. Baird, 405 U.S. 438, 449 (1972) (holding that where a law is “so riddled with exceptions,” the asserted interest “cannot reasonably be regarded as its aim”).
For all of these reasons, federal jurisprudence already has settled as a matter of law that the ability to “naturally procreate” is not a ground upon which access to marriage can be restricted. The Supreme Court has not allowed marriage to be denied to those who could not procreate when they married, such as prisoners. Turner, 482 U.S. 78; id. at 95–96 (describing the significant qualities of marriage, all of which would benefit same-sex couples equally); see also Windsor, 133 S. Ct.
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at 2689 (referring to the right to marry as the ability to “live with pride in themselves and their union and in a status of equality with all other married persons”). Conversely, the Supreme Court has made clear that individuals have the right to choose to procreate or not regardless of their marital status. See Eisenstadt, 405 U.S. at 453 (“[I]t is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as a decision whether to bear or beget a child.”); Griswold, 381 U.S. at 485–86 (recognizing the right of married couples to access contraception).
But the irrationality of the marriage ban is nowhere more evident than in its effect: the exclusion does nothing to help different-sex couples’ children, but affirmatively harms same-sex couples’ children. In fact, any potential governmental interest in channeling childrearing into marriage, so that children may benefit from its stabilizing effects, applies with equal force to same-sex couples’ children. Plaintiff Couples’ children are no less worthy than different-sex couples’ children of the security and family safeguards marriage offers. Windsor, 133 S. Ct. at 2694; Marriage Cases, 183 P.3d at 433 (“[A] stable two-parent family relationship, supported by the state’s official recognition and protection, is equally as important for the numerous children . . . who are being raised by samesex couples . . . .”); Pedersen, 881 F. Supp. 2d at 339 (“[I]t is irrational to strive to incentivize the rearing of children within the marital context by affording benefits
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to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared.”).
ii. Promoting children’s well-being. While the marriage ban does not affect, let alone help, anyone else’s children, same-sex couples’ children are profoundly harmed when their family is deprived of the same safety net as all others. Ruling pre-Windsor, Jackson found it “debatable” whether it would be best for children to be raised by different-sex biological parents. 884 F. Supp. 2d at 1115–16. This argument fails for two independent reasons. First, the marriage ban does not result in any child having different-sex biological parents rather than same-sex biological parents and therefore is not rationally related to a government aim of fostering “optimal” parenting — and a law cannot punish children to deter their parents. Second, the overwhelming scientific consensus, based on decades of peer-reviewed research, shows unequivocally that children raised by same-sex and different-sex couples are equally well-adjusted. The marriage ban has no effect on whether same-sex couples form life-long relationships with each other and raise children together, as many same-sex couples are doing across Nevada. ER 353 ¶ 13 (approximately 17% of same-sex

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couples in Nevada are raising a child under the age of 18).41 The marriage ban ensures, however, that these parents must raise their children without the dignity and instant, assured recognition of those bonds that flow from marriage. Like DOMA, this exclusion “humiliate[s]” 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.” Windsor, 133 S. Ct. at 2694. To the extent that the marriage ban visits these harms on children in an attempt (albeit irrationally) to deter same-sex couples from having children, the Supreme Court has invalidated similar efforts to incentivize parents by punishing children as “‘illogical and unjust.’” Plyler, 457 U.S. at 220 (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)). “‘Obviously, no child is responsible for his

41 As numerous courts have found, it defies rationality to think that, simply because lesbians and gay men cannot marry their partner, they will end their samesex relationships to marry a different-sex partner. See, e.g., Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 389 (D. Mass. 2010) (“[T]his court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.”), aff’d sub nom., Massachusetts v. United States Dep’t of Health and Human Servs., 682 F.3d 1, 14–15 (1st Cir. 2012) (“Certainly, the denial [of benefits under DOMA] will not affect the gender choices of those seeking marriage.”).
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birth and penalizing the . . . child is an ineffectual — as well as unjust — way of deterring the parent.’” Id. (quoting Weber, 406 U.S. at 175).42
Because the State’s interest in child welfare is not conceivably furthered by the marriage ban, that ends the inquiry and Intervenor’s arguments fail as a matter of law. But even if the Court considers whether there is any legitimate basis for preferring different-sex parents over same-sex ones, the answer is clear. An undeniable consensus among the leading authorities in pediatrics, psychology, and child welfare has long confirmed that the children of same-sex parents are equally likely to be well-adjusted as the children of different-sex parents. As Professor Lamb, a preeminent researcher on children’s adjustment and well-being, explained below, decades of scholarship and empirical study overwhelmingly demonstrate that children raised by same-sex parents are as likely to be emotionally healthy and educationally and socially successful as those raised by different-sex parents. ER 508 ¶ 29 (describing approximately 30 years of scholarship of same-sex couples and their children, including more than 100 articles and 50 peer-reviewed empirical reports); 502 ¶ 14 (it is “beyond scientific dispute” that the factors that account for the adjustment of children are the quality of the youths’ relationships

42 Any law adopted with the purpose of burdening gay people’s ability to procreate would also warrant strict scrutiny for implicating the fundamental right to decide “‘whether to bear or beget a child.’” Casey, 505 U.S. at 851 (quoting Eisenstadt, 405 U.S. at 453); see also Pedersen, 881 F. Supp. 2d at 341.
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with their parents, the quality of the relationship between the parents or significant adults in the youths’ lives, and the availability of resources — not the parents’ sex or sexual orientation).
This consensus has been confirmed by the preeminent national medical, mental health, and child welfare authorities — many of which have issued statements affirming that same-sex parents are as effective as different-sex parents in raising well-adjusted children and should not face discrimination — including the American Psychological Association, the American Psychiatric Association, the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychoanalytic Association, the National Association of Social Workers, and the Child Welfare League of America. ER 510 ¶ 34. Courts across the country also have acknowledged this consensus. See Perry, 704 F. Supp. 2d at 1000; Golinski, 824 F. Supp. 2d at 991; Gill, 699 F. Supp. 2d at 388.
Moreover, by enacting the domestic partnership law, the State has acknowledged that registered same-sex domestic partners should be treated equally to different-sex spouses for the State’s full spectrum of parental obligations and protections.43 Through registered domestic partnership, same-sex couples in
43 The district court misunderstood Plaintiff Couples’ arguments about the significance of Nevada’s domestic partnership law. ER 35–36 (claiming that Plaintiff Couples’ argument “would permit a plaintiff to show an equal protection
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Nevada have access to parenting rights identical to those of married couples,
including the presumption of parenthood for any child born into the relationship,
adoption, child custody and visitation, and obligations of child support. See Nev.
Rev. Stat. § 122A.200(1)(d). Nevada, as a matter of policy and law, thus
recognizes that lesbians and gay men “are fully capable of . . . responsibly caring
for and raising children.” Marriage Cases, 183 P.3d at 428; see also Perry, 704 F.
Supp. 2d at 1000 (finding that same-sex couples can and do have children, and
violation by the very fact that a state had recently increased his rights”). Plaintiff Couples argue not that the domestic partnership law creates the equal protection violation, but rather that the purported governmental interests in the marriage ban must be tested in light of the domestic partnership law. See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938) (“[T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.”); Brown v. Bd. of Educ., 347 U.S. 483, 492–93 (1954) (“in [evaluating segregated schools], we cannot turn the clock back to 1868 . . . [and instead] must consider public education in the light of its full development and its present place in American life . . . .”). Where a purported governmental interest defies the state’s policy and practice, that interest cannot be credited. See, e.g., Eisenstadt, 405 U.S. at 448 (recognizing that regardless of the governmental interest in a law when it is first passed, the government can “abandon[]” that interest through subsequent lawmaking).
The district court makes the odd suggestion that the domestic partnership law might be relevant if the State first offered a lesser status to same-sex couples at the same time that it restricted the superior status to different-sex couples. ER 35. This has never been the law. At the time the Fourteenth Amendment was adopted virtually no African-American children attended school in the South; that did not prevent the Supreme Court from holding unconstitutional the later-created system of segregated education. Brown, 347 U.S. at 489–90, 495. Surely the district court would blanch at the idea that interracial couples could be relegated to a lesser status of “interracial partnership,” so long as that status was created after a state instituted marriage itself.
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under California’s domestic partnership law, “[w]hen they do, they are treated identically to opposite-sex parents”). The exclusion of same-sex couples from marriage thus has absolutely no effect on the ability of same-sex couples to become parents, or the manner in which children are raised in Nevada.44
Although Nevada affords same-sex couples the same methods of securing their parental bonds with their children, it nonetheless withholds the dignity and immediate recognition of those bonds that marriage secures. The State’s marriage ban thus not only fails to further the State’s interest in promoting its children’s welfare, but instead hinders it. Windsor, 133 S. Ct. at 2694; Golinski, 824 F. Supp. 2d at 992.

44 In an en banc opinion issued just this month, the Nevada Supreme Court confirmed that this state policy applies to same-sex couples without regard to either parent’s genetic connection to the child or gender. St. Mary v. Damon, No. 58315, 129 Nev., Advance Opinion 68 (Oct. 3, 2013) (en banc). The case involved a custody dispute between a same-sex couple who had a child before Nevada’s domestic partnership law took effect, and later separated. Id. at 3–4. One mother’s fertilized egg had been implanted in the other mother, who carried the child to term. Id. The Court found the trial court had erred in treating the mother who had carried the child as a mere surrogate, and in refusing to consider the former couple’s co-parenting agreement. Id. at 3. The Court confirmed that under Nevada law, “a determination of parentage rests upon a wide array of considerations rather than genetics alone.” Id. at 9; see also id. (holding that Nevada law “clearly reflects the legislature’s intent to allow nonbiological factors to become critical in a [parentage] determination”) (internal quotation marks omitted). The “best interest of the child is the paramount concern,” id. at 11, and that “interest is served by maintaining two actively involved parents,” regardless of whether those parents are same-sex, id. at 12.
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The Chicken Little predictions described above also were raised by the respondent in Windsor, to absolutely no effect. Br. on the Merits for Resp’t BLAG at 44–49, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 280 at *74–82. Windsor found instead that where the government denies official recognition to same-sex couples’ relationships — in that case, their valid marriages — the government “diminish[es] the stability and predictability of basic personal relations.” 133 S. Ct. at 2694. Rather than credit alleged concerns about “irresponsible procreation” or stereotypes about the ability of same-sex couples to parent, Windsor found the only child-related harm worth discussing was the grievous injury caused to the children of same-sex couples when their families are cast out of the same family protection system afforded all others. Id. That ends the inquiry here too.
b. Affording same-sex couples access to civil marriage will have no effect on religious liberties.
Allowing same-sex couples to marry does not affect the First Amendment rights of those who are opposed. Although Intervenor raised religious liberty as a purported rationale for the marriage ban, the district court declined to address it — a sensible response given the argument’s implausibility. See Nev. Rev. Stat. § 122.010 (marriage “is a civil contract”). Affording same-sex couples access to civil marriage “will not impinge upon the religious freedom of any religious organization, official, or any other person” — any more than lawful interfaith
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marriages threaten the freedom of those religious entities and leaders who forbid them. Marriage Cases, 183 P.3d at 451. “[N]o religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs,” id. at 451–52 — such requirements would violate the First Amendment. In fact, the Supreme Court’s recent decision upholding the Westboro Baptist Church’s right to picket military funerals displaying crass anti-gay messages without any legal liability shows that the First Amendment remains a bulwark of protection for religious expression. Snyder v. Phelps, 131 S. Ct. 1207 (2011). For these reasons, analysis of Plaintiff Couples’ claims must be guided by constitutional standards and not private religious views; the Court is “not permitted to do less and would damage our constitution immeasurably by trying to do more.” Varnum, 763 N.W.2d at 905 (Iowa 2009); see also Perry, 704 F. Supp. 2d at 976– 77; Kerrigan, 957 A.2d at 475–76.45

45 Intervenor also argued below that allowing same-sex couples to marry would result in a parade of horribles, including the loss of tax-exempt status and liability due to anti-discrimination lawsuits. Dist. Ct. Dkt. 72 at 26–27. But no church has ever lost its tax exempt status for refusing to perform marriages it does not approve. And Nevada’s marriage ban does nothing to alter state antidiscrimination laws, which prohibit sexual orientation discrimination in public accommodations regardless of Nevada’s marriage ban. See, e.g., Nev. Rev. Stat. § 651.050(3); § 651.070 (prohibiting sexual orientation discrimination in public accommodations).
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C. Nevada’s Marriage Ban Also Discriminates Based on Sex, Further Warranting Heightened Review.
Nevada’s exclusion of same-sex couples from marriage requires heightened
scrutiny for an additional reason: it denies Plaintiff Couples equal protection based
on their sex in relation to the sex of their committed life partners. For example, if
Plaintiff Karen Goody were a man, she could marry her beloved partner, Plaintiff
Karen Vibe. Simply because she is a woman, however, Defendant Officials deny her this socially-cherished right.46 Such sex-based classifications require
heightened scrutiny. See United States v. Virginia, 518 U.S. at 524.
Courts have recognized that discrimination against gay people because they
form a life partnership with a same-sex rather than a different-sex partner is sex
discrimination. See Perry, 704 F. Supp. 2d at 996; Golinski, 824 F. Supp. 2d at
982 n.4; In re Balas, 449 B.R. at 577–78; In re Levenson, 560 F.3d 1145, 1147 (9th
Cir. EDR Op. 2009); Baehr v. Lewin, 852 P.2d 44, 67–68 (Haw. 1993). Sex and
sexual orientation “are necessarily interrelated,” because entering into an intimate
relationship with someone based on that person’s sex “is a large part of what
defines an individual’s sexual orientation.” Perry, 704 F. Supp. 2d at 996; 46 When Karen Goody and Karen Vibe went to the Washoe County Marriage Bureau to obtain a marriage license, the security officer asked, “Do you have a man with you?” ER 207 ¶ 16. When Karen Vibe said they did not, and explained that she wished to marry Karen Goody, she was told she could not even obtain or complete a marriage license application. Id. (stating that employee of Defendant Harvey told them “Two women can’t apply” for a marriage license and the security guard added that marriage is “between a man and a woman”).
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Golinski, 824 F. Supp. 2d at 982 n.4 (“Sexual orientation discrimination can take the form of sex discrimination.”). Indeed, sexual orientation cannot be understood without sex-based references and distinctions. A restriction such as Nevada’s, arising because a lesbian or a gay man has a same-sex life partner, thus constitutes discrimination based on sex as well as sexual orientation. Perry, 704 F. Supp. 2d at 996.
As the district court recognized, Loving establishes that Nevada’s restriction on marriage is not gender-neutral simply because it denies both men and women the right to marry a same-sex life partner. ER 14. Loving discarded “the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations.” Id. at 8; see also McLaughlin v. Florida, 379 U.S. 184, 191 (1964) (holding that equal protection analysis “does not end with a showing of equal application among the members of the class defined by the legislation”); J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994) (holding that the government may not strike jurors based on sex, even though such a practice, as a whole, does not favor one sex over the other). After all, “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.” Romer, 517 U.S. at 633 (internal quotation marks omitted); see also Shelley v. Kraemer, 334 U.S. 1, 21–22 (1948) (holding that it is no answer, in a
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challenge to racially restrictive covenants, that they may also be enforced against
prospective white property owners).
The district court rejected the sex discrimination claim, however, incorrectly
treating Loving’s equal application holding as cabined to the context of race. ER
15. But Loving’s wisdom is not so limited; rather, Loving found that even if racial
discrimination had not been at play and the Court presumed “an even-handed state
purpose to protect the ‘integrity’ of all races,” Virginia’s anti-miscegenation statute
still was “repugnant to the Fourteenth Amendment.” 388 U.S. at 12 n.11; see also
J.E.B., 511 U.S. at 140–41 (holding that individual jurors have a right to
nondiscriminatory jury selection, and “this right extends to both men and
women”). Nevada’s marriage ban is equally repugnant to the Fourteenth Amendment, and there is no refuge in its equal application to men and women.47
The district court also claimed the marriage ban cannot constitute sex
discrimination because “there is no indication of any intent to maintain any notion
of male or female superiority.” ER 15; see also id. (holding that no “gender-based
animus can reasonably be perceived” in the marriage ban). Two fundamental
47 See also Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 202–03 (1994) (“In the same way that the prohibition of miscegenation preserved the polarities of race on which white supremacy rested, the prohibition of homosexuality preserves the polarities of gender on which rests the subordination of women. . . . [S]tigmatization of gays in contemporary American society functions as part of a larger system of social control based on gender.”).
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errors lie therein: First, no showing of intent is necessary because the sex-based restriction is clear on the face of the marriage ban. See Wayte v. United States, 470 U.S. 598, 609 n.10 (1985) (facial discrimination obviates the need to show intent); Nev. Const. art. 1, § 21 (“Only a marriage between a male and female person shall be recognized and given effect in this state.”) (emphasis added); Nev. Rev. Stat. § 122.020(1) (“a male and a female person . . . may be joined in marriage”) (emphasis added). Second, no gender-based notions of “superiority” or “animus” are required to prove discrimination based on sex. See, e.g., Locke v. Davey, 540 U.S. 712, 732 (2004) (Scalia, J., dissenting) (racial segregation could not have been saved by “a well-meaning but misguided belief that the races would be better off apart”); also compare ER 15 (district court’s observation that there is no indication that “the members of a particular gender were targeted”) with J.E.B., 511 U.S. at 140–41 (holding that “individual jurors themselves have a right to nondiscriminatory jury selection procedures” and “this right extends to both men and women”). It matters not whether the sex-based classification is motivated by a well-intentioned but misplaced desire to provide for “women and their need for special protection,” or even “to compensate for and ameliorate the effects of past discrimination.” Orr, 440 U.S. at 283. The Fourteenth Amendment’s prohibition is simple: the government may not without an exceedingly persuasive justification

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classify its citizens for differential treatment “based on sex,” United States v. Virginia, 518 U.S. at 524, and the marriage ban is such a classification.
Nevada’s marriage ban fails for the additional reason that it is premised on impermissible sex stereotyping, by perpetuating the idea that proper women should marry and raise children with men, and proper men should marry and raise children with women. Intervenor’s papers, rife with gender-typed notions, lay bare these stereotyped ideas. See Dist. Ct. Dkt. 72 at 19 (referring to mother as “often vulnerable” and portraying father as the source of support and stability); id. at 25 (describing marriage for different-sex couples as “bridging the male-female divide,” which requires a “massive cultural effort . . . at all times and in all places”). Indeed, Intervenor’s suggestion that a marriage becomes “genderless” when entered by same-sex couples rests on the idea that only when a man and a woman are paired do they retain sufficient masculinity and femininity respectively to remain gendered in a “man-woman marriage.” See id. 2, 13 (asserting that “[g]enderless marriage is a profoundly different institution than man-woman marriage”); id. at 13, 29 (referring to “heteronormativity” as a legitimate government interest, rather than an unconstitutional interest in perpetuating sexstereotyped treatment of men and women); id. at 24–25 (asserting that so-called “man-woman marriage” is the only means of “confer[ring] the status of husband and wife” and “prepar[ing] a male for the role, status and identity of husband,
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transform[ing] him into a husband, and sustain[ing] him over time in his
performance of that role. The same is true for a female relative to wife.”). The
district court itself adopted this gendered language. ER 34 (accepting the idea that
allowing same-sex couples to marry would constitute a “‘genderless marriage’
regime”); ER 13 (claiming that the marriage ban “at most, [intends to maintain
notions] of heterosexual superiority or ‘heteronormativity’ by relegating . . .
homosexual legal unions to a lesser status”).48
The unmistakable sex stereotyping underlying Nevada’s marriage ban
constitutes impermissible sex discrimination. See Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 725 (1982) (“Care must be taken in ascertaining whether the
statutory objective itself reflects archaic and stereotypic notions [based on sex].”);
Craig v. Boren, 429 U.S. 190, 202 n.14 (1976) (overturning Oklahoma’s
differential treatment of young men and women regarding access to alcohol and
48 Intervenor’s assertion below that “heteronormativity” is a purported state interest for the marriage ban offers a surprisingly candid window into the marriage ban’s purpose: to stigmatize gay people as less worthy members of society, and to elevate heterosexuals as embodying the superior “norm.” This purpose has been rejected by federal courts. See Lawrence, 539 U.S. at 567 (lesbians and gay men have a constitutionally protected liberty interest in forming enduring family relationships); Windsor, 133 S. Ct. at 2694 (“[DOMA’s] differentiation demeans [same-sex] couple[s], whose moral and sexual choices the Constitution protects . . . .”). Premising the marriage ban on such a government goal could not more strongly violate Romer’s command that “the Constitution neither knows nor tolerates classes among citizens” (quoting Justice Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 557, 559 (1896)), and instead must “rest[] on a commitment to the law’s neutrality where the rights of persons are at stake.” 517 U.S. at 623.
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discussing the distorting effects of gender-based stereotypes); Orr, 440 U.S. at 283 (holding that where a gender-neutral law will serve a state’s purposes, the state may not adopt one that “gender classifies and therefore carries with it the baggage of sexual stereotypes”).
The marriage ban is the last vestige of sex-based discrimination in Nevada’s marriage laws. See Perry, 704 F. Supp. 2d at 998 (holding that the now-defunct California marriage ban is “nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life”). The marriage ban thus warrants the heightened judicial review afforded to sex-based classifications, which it cannot survive.
D. Nevada’s Marriage Ban Discriminates with Respect to Fundamental Rights and Liberty Interests and Must Be Afforded Heightened Scrutiny for that Reason as Well.
Nevada’s marriage ban warrants heightened scrutiny for the additional reason that it restricts the exercise of fundamental rights and liberty interests, see Section III supra, along invidious lines. Some rights acquire such importance that, absent a sufficiently important governmental interest in discrimination, they must be distributed evenhandedly. See Skinner, 316 U.S. at 541 (holding that it is “essential” that courts employ strict scrutiny when a state law denies “groups or types of individuals” rights such as “[m]arriage and procreation [that] are fundamental”); see also Erwin Chemerinsky, Constitutional Law: Principles and
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Policies, § 10.1.1 (“[O]nce a right is deemed fundamental, under due process or equal protection, strict scrutiny is generally used.”) (emphasis added).49 This marriage ban targets a particular segment of the population, lesbians and gay men, to deny them both a right to marry and equal dignity under the law. “[W]here fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966).
With respect to classifications restricting access to marriage, the Supreme Court has held that “the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that ‘critical examination’ of the state interests advanced in support of the classification is required.” Zablocki, 434 U.S. at 383 (citation omitted) (finding the challenged statute to violate equal protection guarantees). Zablocki examined, and rejected, Wisconsin’s rule that no state resident under a court order to support a

49 The Supreme Court has applied heightened review to state action that selectively denies important rights in a wide range of contexts. See, e.g., Mem’l Hosp. v. Maricopa Cnty., 415 U.S. 250, 254 (1974) (holding that a residency requirement for free medical care that discriminates with respect to the right to travel must be justified by a compelling state interest); Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 99 (1972) (observing that an ordinance treating one class of picketing differently from others “must be tailored to serve a substantial governmental interest”); Harper, 383 U.S. at 670.
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child not in his custody could marry without court permission, to be granted only upon proof of compliance with the support obligation, and a showing that his children were not presently, nor likely to become, public charges. Id. at 375. The Court explained that, for those who could not or would not satisfy the state’s concern of providing for existing offspring, blocking marriage for that targeted group was improper because it did not promote the welfare of those children and it well might lead to harm for an individual’s future children, for whom the law’s “only result [is] in the children being born out of wedlock, as in fact occurred in appellee’s case.” Id. at 390. The same is true here. The marriage ban cannot be justified as an attempt to encourage gay people to marry a different-sex partner, or to impose legal disabilities on them and their children under any standard of review, let alone the “critical examination” that Zablocki requires.
The district court claimed, without support, that the fundamental right to marry does not include access to the term “marriage,” and rather encompasses merely the family formation rights already available to registered domestic partners. ER 29. Whether or not the name “marriage” is considered a core element of that fundamental right, having now provided this status of unparalleled stature in society, the State may not withhold it from some along invidious lines of sexual orientation and sex. See Eisenstadt, 405 U.S. at 453 (“[W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same
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for the unmarried and the married alike.”). The ban “significantly interferes with the exercise of a fundamental right [and] it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate those interests.” Zablocki, 434 U.S. at 388. The Defendant Officials will not meet this test. See infra at III.
The Equal Protection Clause thus secures mutually reinforcing guarantees of freedom both from unequal treatment on the basis of invidious classifications, and from invidious classifications with respect to important rights and liberty interests. Nevada’s marriage ban violates these dual principles and cannot stand. V. BAKER V. NELSON PRESENTS NO BARRIER TO RELIEF IN THIS CASE.
The District Court held that Plaintiff Couples’ claims were largely precluded by the Supreme Court’s summary dismissal in Baker v. Nelson, which arose from a suit filed by a same-sex plaintiff couple seeking to marry in early 1970s Minnesota. ER 9–12; Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). When the Baker plaintiffs sought review of their loss in the Minnesota Supreme Court under former 28 U.S.C. § 1257(2), the Supreme Court summarily dismissed the appeal. 409 U.S. 810 (1972) (mem.).
The Supreme Court has recognized that summary decisions “are obviously not of the same precedential value as would be an opinion of this Court . . . on the merits,” Richardson v. Ramirez, 418 U.S. 24, 83 n.27 (1974). The District Court
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failed to recognize that subsequent doctrinal developments may vitiate any force a
summary decision might have had. Hicks v. Miranda, 422 U.S. 332, 344 (1975);
Jones v. Bates, 127 F.3d 839, 852 n.13 (9th Cir. 1997). In the more than 40 years
since Baker was decided, the Supreme Court has recognized that sex-based
classifications require heightened scrutiny, Frontiero, 411 U.S. at 688; held that a
bare desire to harm gay people cannot constitute a legitimate government interest,
Romer, 517 U.S. at 634–35; and recognized that lesbian and gay individuals have
the same liberty interest in intimate family relationships as heterosexuals,
Lawrence, 539 U.S. at 578.50
Any lingering shadow Baker may have cast, however, was extinguished by
Windsor. Justice Ginsburg previewed the Court’s skepticism when the issue was
raised during oral argument about California’s marriage ban in Hollingsworth,
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. . . . And the same-sex intimate conduct was
50 While it attempted to atomize Romer by treating it as distinct from equal protection doctrine, ER 11–12 (distinguishing between “Romer doctrine” and a “traditional equal protection claim”), the district court conceded that arguments pursuant to Romer could not be precluded by Baker. ER 11–12. Romer informs constitutional doctrine as a whole, as the Supreme Court recognized in relying on the decision both in Lawrence, 539 U.S. at 574–76, and Windsor, 133 S. Ct. at 2692, 2693. The district court’s artificial treatment of Romer as creating a new, severable doctrine underscores the court’s failure to appreciate that Baker simply has been superseded.
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considered criminal in many States in 1971, so I don’t think we can extract much in Baker v. Nelson. Tr. of Oral Arg. at 12, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12144), 2013 U.S. Trans. LEXIS 40, at *10. Ultimately, Baker did not earn so much as a passing reference in any of the Supreme Court’s merits opinions about samesex couples and marriage last term. See, e.g., Windsor, 133 S. Ct. at 2705–11 (Scalia, J., dissenting) (discussing the merits of DOMA’s constitutionality without referencing Baker); id. at 2714–20 (Alito, J., dissenting) (same). In light of Windsor’s ruling that DOMA is unconstitutional because it imposes “a disadvantage, a separate status, and so a stigma” on same-sex couples, as Nevada does now, it is no longer plausible that Plaintiff Couples’ claims fail even to raise a federal question. 133 S. Ct. at 2693.51

51 Even were this Court to conclude that Baker precludes a merits ruling on a due process or broad equal protection claim, Baker certainly is not a bar to any ruling in Plaintiffs’ favor. A summary dismissal’s limited precedential value extends only to “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam) (emphasis added). The Court could resolve this case in a manner tailored to Nevada’s state policy, which recognizes that same-sex couples are worthy of the rights and responsibilities of spouses by providing them through domestic partnership, even as the state denies them the honored designation of marriage. Baker could not even have imagined, let alone decided, that question in 1971, when no state in the country offered any relationship protection for same-sex couples.
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CONCLUSION In the first case to fulfill same-sex couples’ freedom to marry, Massachusetts’ high court observed that the “plaintiffs are members of our community, our neighbors, our coworkers, our friends. . . . [They] volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation” of a shared society. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 973 (Mass. 2003) (Greaney, J., concurring). Plaintiff Couples, like other same-sex couples across Nevada, yearn for recognition of their shared humanity and a family life accorded equal dignity by the State. They also hope “that someday lesbian and gay youth in Nevada will be able to grow up with the same dreams of marrying their one, cherished partner as their heterosexual peers, with all of the validation, dignity, and respect that this shared dream communicates to others.” ER 195–96 ¶ 4. Federal guarantees of due process and equal protection require nothing less. The district court’s judgment should be reversed.
///
///
///
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DATE: October 18, 2013

Respectfully submitted,
Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY & MYERS LLP
Kelly H. Dove Marek P. Bute SNELL & WILMER LLP
By: s/ Tara L. Borelli Tara L. Borelli
Attorneys for Plaintiffs-Appellants

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STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, Plaintiffs-Appellants are aware of only one other related case pending in the United States Court of Appeals for the Ninth Circuit which raises some issues closely related to those in the instant case: Jackson, et al. v. Abercrombie, Nos. 12-16995 and 12-16998 (9th Cir. filed Sept. 7, 2012).

Dated: October 18, 2013

By: s/ Tara L. Borelli Tara L. Borelli
Attorneys for Plaintiffs-Appellants

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Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-4, 29-2(c)(2) and (3), 32-2 or 32-41 for Case Number 12-17668

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pages, excluding the portions exempted by Fed. R. App. P.

32(a)(7)(B)(iii), if applicable.

This brief complies with the enlargement of brief size granted by court order dated

. The brief’s type size and type face comply with Fed. R.

App. P. 32(a)(5) and (6). This brief is

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pages, excluding the portions exempted by Fed.

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pursuant to Circuit Rule 32-2 and is 25,529

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of text or

pages, excluding the portions exempted by Fed. R.

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exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable.

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

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Date October 18, 2013
1 If filing a brief that falls within the length limitations set forth at Fed. R. App. P. 32(a)(7)(B), use Form 6, Federal Rules of Appellate Procedure.

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ADDENDUM OF PERTINENT AUTHORITIES

TABLE OF CONTENTS Page(s)
Constitutional Provisions U.S. Const. amend. XIV, § 1 ................................................................................ A-1 Nev. Const. art. I, § 21 .......................................................................................... A-1 Statutes Nev. Rev. Stat. § 122.020 ..................................................................................... A-1 Nev. Rev. Stat. § 122A.200 .............................................................................. A-2–3

A-i

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U.S. Const. amend. XIV, § 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Nev. Const. art. I, § 21
Only a marriage between a male and female person shall be recognized and given effect in this state.

Nev. Rev. Stat. § 122.020
122.020. Persons capable of marriage; consent of parent or guardian.
1. Except as otherwise provided in this section, a male and a female person, at least 18 years of age, not nearer of kin than second cousins or cousins of the half blood, and not having a husband or wife living, may be joined in marriage.
2. A male and a female person who are the husband and wife of each other may be rejoined in marriage if the record of their marriage has been lost or destroyed or is otherwise unobtainable.
3. A person at least 16 years of age but less than 18 years of age may marry only if the person has the consent of:
(a) Either parent; or
(b) Such person’s legal guardian.
A-1

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Nev. Rev. Stat. § 122A.200
122A.200. Rights and duties of domestic partners, former domestic partners and surviving domestic partners.
1. Except as otherwise provided in NRS 122A.210:
(a) Domestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon spouses.
(b) Former domestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon former spouses.
(c) A surviving domestic partner, following the death of the other partner, has the same rights, protections and benefits, and is subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon a widow or a widower.
(d) The rights and obligations of domestic partners with respect to a child of either of them are the same as those of spouses. The rights and obligations of former or surviving domestic partners with respect to a child of either of them are the same as those of former or surviving spouses.
(e) To the extent that provisions of Nevada law adopt, refer to or rely upon provisions of federal law in a way that otherwise would cause domestic partners to be treated differently from spouses, domestic partners must be treated by Nevada law as if federal law recognized a domestic partnership in the same manner as Nevada law.
(f) Domestic partners have the same right to nondiscriminatory treatment as that provided to spouses.

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(g) A public agency in this State shall not discriminate against any person or couple on the basis or ground that the person is a domestic partner rather than a spouse or that the couple are domestic partners rather than spouses.
(h) The provisions of this chapter do not preclude a public agency from exercising its regulatory authority to carry out laws providing rights to, or imposing responsibilities upon, domestic partners.
(i) Where necessary to protect the rights of domestic partners pursuant to this chapter, gender-specific terms referring to spouses must be construed to include domestic partners.
(j) For the purposes of the statutes, administrative regulations, court rules, government policies, common law and any other provision or source of law governing the rights, protections and benefits, and the responsibilities, obligations and duties of domestic partners in this State, as effectuated by the provisions of this chapter, with respect to:
(1) Community property;
(2) Mutual responsibility for debts to third parties;
(3) The right in particular circumstances of either partner to seek financial support from the other following the dissolution of the partnership; and
(4) Other rights and duties as between the partners concerning ownership of property, any reference to the date of a marriage shall be deemed to refer to the date of registration of the domestic partnership.
2. As used in this section, “public agency” means an agency, bureau, board, commission, department or division of the State of Nevada or a political subdivision of the State of Nevada.

A-3

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Tara L. Borelli

.

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Case No. 12-17668

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and
COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge.

PLAINTIFFS-APPELLANTS’ EXCERPTS OF RECORD VOLUME 1 OF 5

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600

Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY &
MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes
Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

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INDEX TO EXCERPTS OF RECORD

Volume 1 of 5

Date Filed

Document Description

12/3/2012 Judgment in a Civil Case

Dist. Ct. Dkt. No.
103

ER Pg. No.
1

11/26/2012 Order on Motion to Dismiss and Cross-Motions for Summary Judgment

102

2

Volume 2 of 5

Date Filed

Document Description

12/3/2012 Plaintiffs’ Notice of Appeal (exhibits omitted)

Dist. Ct. Dkt. No.
104

ER Pg. No.
43

11/08/2012 Plaintiffs’ Motion for Leave to File Summary

100

46

Judgment Reply Brief

.

.

Exhibit A – Plaintiffs’ Brief in Reply to the 100-1

50

Coalition’s Opposition

.

.

Exhibit B – Declaration of Michael Lamb, 100-2

56

Ph.D.

.

.

Exhibit 1 – Article

66

Exhibit 2 – Trial transcript excerpts

71

Exhibit C – Declaration of Tara Borelli

100-3

85

10/25/2012 Supplemental Declaration of Michael Lamb,

98-1

131

Ph.D. in Support of Plaintiffs’ Summary

Judgment Opposition

10/25/2012 Supplemental Declaration of Letitia Anne Peplau, Ph.D. in Support of Plaintiffs’ Summary Judgment Opposition

98-2

139

i

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Volume 2 of 5, continued

Date Filed

Document Description

9/10/2012

Plaintiffs’ Request for Judicial Notice in Support of Plaintiffs’ Motion for Summary Judgment
Exhibit A – Pages from Carson City ClerkRecorder website
Exhibit B – Page from Clark County Clerk website
Exhibit C – Ballot results for Question 2 (2000)
Exhibit D – Ballot results for Question 2 (2002)
Exhibit E – Excerpt from Social Security Administration manual
Exhibit F – Page from Nevada DMV website

Dist. Ct. Dkt. No.
87

ER Pg. No.
143 . .
148 .
157 .
159 .
165 .
170 .
174

Appendix to Plaintiffs’ Motion for Summary

86-1

177

Judgment, Vol. 1

.

Declaration of Beverly Sevcik

179

Declaration of Mary Baranovich

184

Declaration of Theodore Small

189

Declaration of Antioco Carrillo

194

Declaration of Karen Goody

199

Declaration of Karen Vibe

203

Declaration of Greg Flamer

208

Declaration of Fletcher Whitwell

212

Declaration of Mikyla Miller

216

Declaration of Katrina Miller

220

ii

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Date Filed 9/10/2012

Volume 2 of 5, continued

Document Description
Declaration of Adele Newberry Declaration of Tara Newberry Declaration of Caren Cafferata-Jenkins Declaration of Farrell Cafferata-Jenkins Declaration of Sara Geiger Declaration of Megan Lanz Declaration of Tara Borelli
Exhibit A – Campaign flyer relating to Question 2 Exhibit B – Letter from the Coalition for the Protection of Marriage relating to Question 2 (August 2002)

Dist. Ct. Dkt. No.
86-1

ER Pg. No.
224 228 232 236 240 245 249 251
. 253

Volume 3 of 5

Date Filed

Document Description

9/10/2012 Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 2 Declaration of Nancy F. Cott, Ph.D. Declaration of Letitia Anne Peplau, Ph.D. Declaration of M.V. Lee Badgett, Ph.D Declaration of George Chauncey, Ph.D.

Dist. Ct. Dkt. No.
86-2

ER Pg. No.
258

260 302 349 389

iii

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Date Filed

Volume 4 of 5 Document Description

9/10/2012

Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 3
Declaration of Gary M. Segura, Ph.D.
Declaration of Michael Lamb, Ph.D.

Dist. Ct. Dkt. No.
86-3

ER Pg. No.
442

444 498

8/10/2012 Transcript of Motion Hearing

69

640

Date Filed

Volume 5 of 5 Document Description

5/18/2012 Answer of Amy Harvey, Washoe County Clerk

5/18/2012 Answer of Diana Alba, Clark County Clerk

4/10/2012 Complaint for Declaratory and Injunctive Relief (minor names redacted)

--

U.S. District Court Docket Sheet

Dist. Ct. Dkt. No.
35

ER Pg. No.
673

34

691

1

695

--

725

iv

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2AO450 (Rev. 5/85) Judgment in a Civil Case

UNITED STATES DISTRICT COURT

DISTRICT OF

Nevada

Beverly Sevcik, et al
V. Brian Sandoval, et al

Plaintiffs,

JUDGMENT IN A CIVIL CASE
Case Number: 2:12-cv-00578-RCJ-PAL

Defendants.
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
Notice of Acceptance with Offer of Judgment. A notice of acceptance with offer of judgment has been filed in this case.
IT IS ORDERED AND ADJUDGED judgment is hereby entered per Order #102 filed November 26, 2012.

December 3, 2012 Date
ER 1

/s/ Lance S. Wilson
Clerk
/s/ Molly Morrison
(By) Deputy Clerk

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1

2

3

4

5 UNITED STATES DISTRICT COURT
6 DISTRICT OF NEVADA
7

8 BEVERLY SEVCIK et al.,

9

Plaintiffs,

10

vs.

11 BRIAN SANDOVAL et al.,

12

Defendants.

13

)

)

)

)

2:12-cv-00578-RCJ-PAL

)

)

)

ORDER

)

)

)

14

This case arises out of the refusal of the State of Nevada to permit same-sex couples to

15 enter into civil marriages, as well as its refusal to recognize same-sex marriages performed in

16 other states as “marriages” under Nevada law. The question before the Court is not the wisdom

17 of providing for or recognizing same-sex marriages as a matter of policy but whether the Equal

18 Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibits the People of

19 the State of Nevada from maintaining statutes that reserve the institution of civil marriage to one-

20 man one-woman relationships or from amending their state constitution to prohibit the State

21 from recognizing marriages formed in other states as “marriages” under Nevada law if those

22 marriages do not conform to Nevada’s one-man one-woman civil marriage institution. For the

23 reasons given herein, the Court rules that it does not. To the extent the present challenge is not

24 precluded by U.S. Supreme Court precedent, Defendants are entitled to summary judgment.

25 ///

ER 2

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1 I. FACTS AND PROCEDURAL HISTORY

2

The sixteen Plaintiffs in this case comprise eight same-sex couples who desire to marry

3 one another in Nevada or who have validly married one another in other jurisdictions and desire

4 to have their marriages recognized as “marriages” by the State of Nevada. (See Compl. ¶¶ 5 12,

5 Apr. 10, 2012, ECF No. 1). Defendants are Governor Brian Sandoval, Clark County Clerk and

6 Commissioner of Civil Marriages Diana Alba, Washoe County Clerk and Commissioner of Civil

7 Marriages Amy Harvey, and Carson City Clerk Recorder Alan Glover. (See id. ¶¶ 13 16).

8 Except for the fact that they are of the same sex, the unmarried Plaintiff couples are otherwise

9 legally qualified to marry one another in Nevada. (See id. ¶ 24). Between April 1 and 6, 2012,

10 four of the unmarried Plaintiff couples were denied marriage licenses in Clark County, Washoe

11 County, and Carson City, variously, for this reason. (See id. ¶¶ 25 28). The other four Plaintiff

12 couples were validly married in other jurisdictions and challenge the State’s refusal to recognize

13 their foreign marriages as “marriages,” as opposed to “domestic partnerships,” under Nevada

14 law. (See id. ¶¶ 29 32).

15

Plaintiffs sued Defendants in this Court on a single claim under the Equal Protection

16 Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, requesting declaratory and

17 injunctive relief. The Court granted the Coalition for the Protection of Marriage’s (the

18 “Coalition”) motion to intervene after Plaintiffs withdrew their opposition to the motion. The

19 Court has heard oral argument on Governor Sandoval’s and Clerk Recorder Glover’s separate

20 motions to dismiss. The Coalition, Clerk Recorder Glover, Governor Sandoval, and Plaintiffs

21 have since filed cross motions for summary judgment. The Court decides all of these motions

22 via the present Order.

23 II. LEGAL STANDARDS

24

A. Dismissal

25

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

ER 3

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1 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

2 what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

3 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

4 that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

5 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

6 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

7 failure to state a claim, dismissal is appropriate only when the complaint does not give the

8 defendant fair notice of a legally cognizable claim and the factual grounds upon which it rests.

9 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint

10 is sufficient to state a claim, the court will take all material allegations as true and construe them

11 in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

12 Cir. 1986). The court, however, is not required to accept as true allegations that are merely

13 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

14 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

15 with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own

16 case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677 79

17 (2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff

18 pleads factual content that allows the court to draw the reasonable inference that the defendant is

19 liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule

20 8(a), a plaintiff must not only specify a cognizable legal theory (Conley review), but also must

21 plead the facts of his own case so that the court can determine whether he has any plausible basis

22 for relief under the legal theory he has specified, assuming the facts are as he alleges (Twombly-

23 Iqbal review).

24

“Generally, a district court may not consider any material beyond the pleadings in ruling

25 on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

ER 4

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1 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

2 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

3 whose contents are alleged in a complaint and whose authenticity no party questions, but which

4 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

5 motion to dismiss” without converting the motion to dismiss into a motion for summary

6 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

7 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

8 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

9 considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

10 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

11 2001).

12

B. Summary Judgment

13

A court must grant summary judgment when “the movant shows that there is no genuine

14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

15 Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v.

16 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there

17 is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A

18 principal purpose of summary judgment is “to isolate and dispose of factually unsupported

19 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 24 (1986). In determining summary

20 judgment, a court uses a burden-shifting scheme:

21

When the party moving for summary judgment would bear the burden of proof at

trial, it must come forward with evidence which would entitle it to a directed verdict

22

if the evidence went uncontroverted at trial. In such a case, the moving party has the

initial burden of establishing the absence of a genuine issue of fact on each issue

23

material to its case.

24 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations

25 and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden

ER 5

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1 of proving the claim or defense, the moving party can meet its burden in two ways: (1) by

2 presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by

3 demonstrating that the nonmoving party failed to make a showing sufficient to establish an

4 element essential to that party’s case on which that party will bear the burden of proof at trial. See

5 Celotex Corp., 477 U.S. at 323 24. If the moving party fails to meet its initial burden, summary

6 judgment must be denied and the court need not consider the nonmoving party’s evidence. See

7 Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 60 (1970).

8

If the moving party meets its initial burden, the burden then shifts to the opposing party to

9 establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

10 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party

11 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

12 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

13 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

14 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment

15 by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d

16 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and

17 allegations of the pleadings and set forth specific facts by producing competent evidence that

18 shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

19

At the summary judgment stage, a court’s function is not to weigh the evidence and

20 determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477

21 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are

22 to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely

23 colorable or is not significantly probative, summary judgment may be granted. See id. at 249 50.

24 ///

25 ///

ER 6

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1 III. ANALYSIS

2

A. Nevada’s Marriage and Domestic Partnership Laws

3

The Nevada Constitution prohibits official recognition of same-sex marriages by the

4 State. See Nev. Const. art. I, § 21 (“Only a marriage between a male and female person shall be

5 recognized and given effect in [Nevada].”). The Nevada Legislature, however, has recently

6 provided for “domestic partnerships” between two persons of any gender. See generally Nev.

7 Rev. Stat. ch. 122A. Nevada recognizes both foreign marriages and foreign quasi-marriage

8 relationships that do not qualify as “marriages” under the Nevada Constitution as “domestic

9 partnerships” under Chapter 122A, regardless of the label used in the jurisdiction where the

10 relationship was formed. See Nev. Rev. Stat. § 122A.500.

11

A couple desiring to enter into a domestic partnership in Nevada must satisfy eligibility

12 requirements similar to, but not identical to, those requirements a couple desiring to enter into a

13 marriage must satisfy. See Nev. Rev. Stat. §§ 122A.100, 122A.110. Prospective domestic

14 partners must prove to the Secretary of State that they share a residence on at least a part-time

15 basis, that they are neither married nor in a domestic partnership in any state, that they are not

16 related by blood in a way that would prevent them from being married in Nevada, and that they

17 are both eighteen years old and competent to consent. See id. at § 122A.100(2), (4). If these

18 requirements are satisfied, the couple must then file with the Secretary of State a signed,

19 notarized form declaring their decision “to share one another’s lives in an intimate and

20 committed relationship of mutual caring” and that they desire of their own free will to enter into

21 a domestic partnership, and they must pay a reasonable fee to the Office of the Secretary of State.

22 See id. at § 122A.100(1). Domestic partners may solemnize their relationship, but they need not

23 do so to perfect it, and religious ministers and organizations may choose not to solemnize or

24 otherwise recognize such relationships. See id. at § 122A.110. Nevada’s laws do not purport to

25 prevent the celebration of domestic partnerships in religious or secular ceremonies, nor do they

ER 7

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1 purport to prevent domestic partners or others from using the word “marriage” to describe the

2 relationship.

3

A couple desiring to enter into a civil marriage must satisfy slightly different

4 requirements, some of which are more stringent, and some of which are less stringent.

5 Prospective spouses must be one male and one female, and both must be eighteen years old,

6 although a person who is at least sixteen years old may marry with the permission of at least one

7 parent or legal guardian, and a person under sixteen may marry with the permission of at least

8 one parent or legal guardian plus approval by the district court exceptions that are not available

9 to prospective domestic partners. See id. at §§ 122.020, 122.025. Although prospective domestic

10 partners must be neither married nor in another domestic partnership, see Nev. Rev. Stat.

11 § 122A.100(2)(b), a person who is already in a domestic partnership could apparently marry a

12 third person in Nevada, because the anti-bigamy clause under the marriage chapter prevents only

13 married persons from marrying again and says nothing of persons who are already in domestic

14 partnerships, see id. at § 122.020(1). Also, Chapter 122A is silent on whether opposite-sex

15 couples may enter into domestic partnerships; presumably, therefore, they can, though such a

16 union would not constitute a “marriage” under the Nevada Constitution. See id. at § 122A.510.

17 Unlike prospective domestic partners, prospective spouses may obtain the required marriage

18 license from the county clerk in any county in Nevada but must provide the clerk with certain

19 documentary evidence and must answer questions on the application form under oath. See id. at

20 § 122.040. They must also pay a fee to the county clerk. See id. at § 122.060. However, unlike

21 the “reasonable fee” to be charged by the Secretary of State to prospective domestic partners, the

22 fees to be paid by prospective spouses to county clerks are fixed by statute. See id. at § 122.060.

23 Unlike domestic partnerships, a judge, justice, or minister must solemnize a marriage. See id. at

24 § 122.010.

25

Except as otherwise provided in the statutes, domestic partners in Nevada have the same

ER 8

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1 rights and responsibilities as spouses have, Nev. Rev. Stat. § 122A.200(1)(a), former domestic

2 partners have the same rights and responsibilities as former spouses have, id. at

3 § 122A.200(1)(b), surviving domestic partners have the same rights and responsibilities as

4 widows and widowers have, id. at § 122A.200(1)(c), domestic partners and former and surviving

5 domestic partners have the same rights and responsibilities with respect to their children as

6 spouses and former and surviving spouses have, id. at § 122A.200(1)(d), where state actors are

7 concerned, Nevada law immunizes domestic partners from any discriminatory effects of federal

8 law, id. at § 122A.200(1)(e) (“[t]o the extent that provisions of Nevada law adopt, refer to or rely

9 upon provisions of federal law in a way that otherwise would cause domestic partners to be

10 treated differently from spouses, domestic partners must be treated by Nevada law as if federal

11 law recognized a domestic partnership in the same manner as Nevada law”), and domestic

12 partners have the same right to nondiscriminatory treatment as spouses as a general matter, id. at

13 § 122A.200(1)(f). There is at least one notable exception to these equality provisions: “The

14 provisions of this chapter do not require a public or private employer in this State to provide

15 health care benefits to or for the domestic partner of an officer or employee,” id. at

16 § 122A.210(1), though employers may offer such coverage voluntarily, id. at § 122A.210(2).

17 Although the Nevada Constitution independently provides that a domestic partnership between

18 persons of the same sex cannot be a “marriage” in Nevada, Chapter 122A itself provides that no

19 domestic partnership is a “marriage” under the Nevada Constitution. See id. at § 122A.510. The

20 statutory provision is likely only important for opposite-sex domestic partners, because it adds

21 nothing to the Nevada Constitution’s prohibition against same-sex marriages.

22

B. Baker v. Nelson

23

Defendants argue that the present equal protection challenge is precluded by Baker v.

24 Nelson, 409 U.S. 810 (1972). In that case, the Supreme Court summarily dismissed an equal

25 protection challenge to Minnesota’s marriage laws for lack of a substantial federal question. See

ER 9

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1 id. at 810.

2

The summary dismissal of an appeal for want of a substantial federal question operates as

3 a decision on the merits. Hicks v. Miranda, 422 U.S. 332, 344 45 (1975) (“[U]nless and until the

4 Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that

5 if the Court has branded a question as unsubstantial, it remains so except when doctrinal

6 developments indicate otherwise. . . . [L]ower courts are bound by summary decisions by this

7 Court until such time as the Court informs [them] that [they] are not.” (citations and internal

8 quotation marks omitted; alterations in original)). “Summary . . . dismissals for want of a

9 substantial federal question . . . reject the specific challenges presented in the statement of

10 jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts

11 from coming to opposite conclusions on the precise issues presented and necessarily decided by

12 those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). “A summary disposition affirms

13 only the judgment of the court below, and no more may be read into [the] action than was

14 essential to sustain that judgment.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S.

15 173, 182 83 (1979) (citation omitted). “Questions which ‘merely lurk in the record’ are not

16 resolved, and no resolution of them may be inferred.” Id. at 183 (citation omitted). Accordingly,

17 Baker controls the present case, unless the specific challenge presented in this case was not

18 decided by the Minnesota Supreme Court.

19

In Baker, the Minnesota Supreme Court ruled, inter alia, that “[t]he equal protection

20 clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s

21 classification of persons authorized to marry. . . . We hold, therefore, that [the statute permitting

22 only opposite-sex marriage] does not offend the . . . Fourteenth Amendment[] to the United

23 States Constitution.” Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). The Supreme Court

24 summarily dismissed the appeal from this decision “for want of a substantial federal question.”

25 See Baker, 409 U.S. at 810. The challenged statute in Baker was Chapter 517 of the Minnesota

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1 Statutes, which prohibited same-sex marriages. See Baker, 191 N.W.2d at 186. The plaintiffs in

2 Baker challenged that statute under the Ninth Amendment and the Due Process and Equal

3 Protection Clauses of the Fourteenth Amendment. See id. The Minnesota Supreme Court ruled

4 that the statute offended none of these constitutional provisions. See id. at 186 87. The U.S.

5 Supreme Court summarily dismissed the appeal, see Baker, 409 U.S. at 810, so this Court “had

6 best adhere to the view that” the question of whether a state’s refusal to recognize same-sex

7 marriage offends the Equal Protection Clause is constitutionally insubstantial, see Hicks, 422

8 U.S. at 344 45, and the Court is prevented from coming to an opposite conclusion, see Mandel,

9 432 U.S. at 176.

10

Governor Sandoval and Clerk Recorder Glover therefore ask the Court to dismiss.

11 Plaintiffs respond that Baker does not control because Baker concerned the broader question of

12 whether the Equal Protection Clause requires a state to permit same-sex marriages, whereas the

13 present case concerns the narrower question of whether the Equal Protection Clause permits a

14 state to set up nearly identical civil institutions, i.e., marriage and domestic partnership, and then

15 exclude same-sex couples from one and not the other. As discussed in more detail, infra, the

16 State of Nevada has not done this in the way Plaintiffs argue it has. The Court finds that the

17 present challenge is in the main a garden-variety equal protection challenge precluded by Baker.

18 Plaintiffs also argue that the outcome in Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) cannot be

19 squared with Defendants’ interpretation of the Hicks doctrine. But the Court finds Perry to be

20 consistent with the view that Baker precludes a large part of the present challenge. The equal

21 protection claim is the same in this case as it was in Baker, i.e., whether the Equal Protection

22 Clause prevents a state from refusing to permit same-sex marriages. There is an additional line

23 of argument potentially applicable in this case based upon Romer v. Evans, 517 U.S. 620 (1996)

24 concerning the withdrawal of existing rights or a broad, sweeping change to a minority group’s

25 legal status. A Romer-type analysis is not precluded by Baker, because the Romer doctrine was

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1 not created until after Baker was decided. But the traditional equal protection claim is precluded,

2 and this is consistent with Perry. The Perry court was clear and emphatic that its decision was

3 based solely upon the Supreme Court’s withdrawal-of-existing-rights theory adopted in Romer in

4 1996, twenty-four years after Baker was decided, not upon a general equal protection challenge,

5 which the Court finds Baker precludes.

6

In summary, the present equal protection claim is precluded by Baker insofar as the claim

7 does not rely on the Romer line of cases, and Defendants are entitled to dismissal in part,

8 accordingly. Although the Court finds that Baker precludes a large part of the present challenge,

9 the Court will conduct a full equal protection analysis so that the Court of Appeals need not

10 remand for further proceedings should it rule that Baker does not control or does not control as

11 broadly as the Court finds.

12

C. Plaintiffs’ Equal Protection Challenge

13

“[B]ecause of the[] differences [in the rights and responsibilities of spouses and domestic

14 partners], coupled with the stigma of exclusion and of being branded by the government as

15 inferior, same-sex couples and their children suffer both tangible and dignitary harms, all of

16 which are of constitutional dimension.” (See Compl. ¶ 39). For this reason, Plaintiffs challenge

17 Section 21 of Article I of the Nevada Constitution (“Section 21”) and Nevada Revised Statutes

18 (“NRS”) section 122.020 under the Equal Protection Clause of the Fourteenth Amendment, both

19 facially and as applied. (See Compl. ¶¶ 88 89). Section 21 provides that only a marriage

20 between one man and one woman may be recognized as a marriage in Nevada, see Nev. Const.

21 art I, § 21, and NRS section 122.020 provides that prospective spouses must be, inter alia, of

22 opposite sexes to qualify for marriage, see Nev. Rev. Stat. § 122.020. Plaintiffs do not appear to

23 challenge any other provisions of Nevada law in the present lawsuit, and they have brought no

24 due process challenge.

25

In analyzing an equal protection challenge, a court first identifies the categorical

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1 distinction the state has drawn and determines what level of constitutional scrutiny applies to

2 such distinctions. E.g., United States v. Lopez-Flores, 63 U.S. 1468, 1472 (9th Cir. 1995) (citing

3 Jones v. Helms, 452 U.S. 412, 423 24 (1981); Hernandez v. Texas, 347 U.S. 475, 479 (1954)).

4 The court then scrutinizes the challenged law, accordingly. Id. (citing Plyler v. Doe, 457 U.S.

5 202, 217 18 (1982)).

6

1. Identification of the Distinction Drawn by the State

7

The parties appear to agree that the distinction drawn by the state of Nevada is

8 heterosexual versus homosexual persons, except that at least one Defendant argues that the State

9 has drawn no distinction at all because the laws at issue are facially neutral with respect to both

10 gender and sexual orientation. Under the conception of the distinction drawn by the State as

11 being between homosexual and heterosexual persons, the Court would apply rational-basis

12 scrutiny. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.

13 1990).

14

Before determining the level of review, however, the Court will more closely analyze the

15 distinction the State has drawn. Although the distinction the State has drawn (between one-

16 man one-woman marriages on the one hand, and any other gender- or number-configuration of

17 spouses on the other hand) largely burdens homosexuals, the distinction is not by its own terms

18 drawn according to sexual orientation. Homosexual persons may marry in Nevada, but like

19 heterosexual persons, they may not marry members of the same sex. That is, a homosexual man

20 may marry anyone a heterosexual man may marry, and a homosexual woman may marry anyone

21 a heterosexual woman may marry. In this sense, the State of Nevada has drawn no distinction at

22 all. Under this conception of the (lack of) distinction drawn by the State, the laws at issue would

23 receive no scrutiny at all under the Equal Protection Clause.

24

In another sense, the State of Nevada may be said to have drawn a gender-based

25 distinction, because although the prohibition against same-sex marriage applies equally to men

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1 and women, “the statutes proscribe generally accepted conduct if engaged in by members of” the

2 same gender. Loving v. Virginia, 388 U.S. 1, 11 (1967). In pre-1967 Virginia, both Caucasians

3 and non-Caucasians were prohibited from interracial marriage (though a non-Caucasian could

4 marry another non-Caucasian of a difference race), and in Nevada, both men and women are

5 prohibited from same-sex marriage. The Loving Court, however, specifically rejected the

6 argument that a reciprocal disability necessarily prevents heightened scrutiny under the Equal

7 Protection Clause. See id. at 8 (“Because we reject the notion that the mere ‘equal application’ of

8 a statute containing racial classifications is enough to remove the classifications from the

9 Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept

10 the State’s contention that these statutes should be upheld if there is any possible basis for

11 concluding that they serve a rational purpose.”). In other words, Loving could fairly be said to

12 stand, inter alia, for the proposition that if a person could engage in generally acceptable activity

13 (marriage) but for characteristic X1 (non-Caucasian), then the level of scrutiny applicable to X14 based (race-based) distinctions applies to the disability, regardless of whether persons with

15 characteristic X2 (Caucasian) are subject to a reciprocal disability according to their own X-based 16 characteristic. Application of this principle here might counsel the use of intermediate scrutiny.

17 That is, just as in pre-1967 Virginia a Caucasian but not a non-Caucasian could marry another

18 Caucasian, and vice versa, in Nevada a man but not a woman may marry another woman, and

19 vice versa. Cf. id. at 11 (“There can be no question but that Virginia’s miscegenation statutes rest

20 solely upon distinctions drawn according to race. The statutes proscribe generally accepted

21 conduct if engaged in by members of different races.”). Under this conception of the distinction

22 drawn by the State, i.e., a gender-based distinction, the Court would apply intermediate scrutiny.

23 See, e.g., Hibbs v. Dep’t of Human Res., 273 F.3d 844, 855 (9th Cir. 2001).

24

Although the State appears to have drawn no distinction at all at first glance, and although

25 the distinction drawn by the State could be characterized as gender-based under the Loving

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1 reciprocal-disability principle, the Court finds that for the purposes of an equal protection

2 challenge, the distinction is definitely sexual-orientation based. The issue turns upon the alleged

3 discriminatory intent behind the challenged laws, which is the sine qua non of a claim of

4 unconstitutional discrimination. See Washington v. Davis, 426 U.S. 229, 240 (1976). “To state a

5 claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth

6 Amendment a plaintiff must show that the defendants acted with an intent or purpose to

7 discriminate against the plaintiff based upon membership in a protected class.” Lee v. City of

8 L.A., 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th

9 Cir. 1998)). “Where the challenged governmental policy is ‘facially neutral,’ proof of its

10 disproportionate impact on an identifiable group can satisfy the intent requirement only if it tends

11 to show that some invidious or discriminatory purpose underlies the policy.” Id. (citing Vill. of

12 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 66 (1977) (citing Washington,

13 426 U.S. at 242)).

14

The laws at issue here are not directed toward persons of any particular gender, nor do

15 they affect people of any particular gender disproportionately such that a gender-based animus

16 can reasonably be perceived. So although the Loving reciprocal-disability principle would

17 indicate a gender-based distinction in a case where the members of a particular gender were

18 targeted, because it is homosexuals who are the target of the distinction here, the level of scrutiny

19 applicable to sexual-orientation-based distinctions applies. See Loving, 388 U.S. at 11 (noting

20 that the anti-miscegenation laws at issue in that case targeted racial minorities because the laws

21 were “designed to maintain White Supremacy”). Here, there is no indication of any intent to

22 maintain any notion of male or female superiority, but rather, at most, of heterosexual superiority

23 or “heteronormativity” by relegating (mainly) homosexual legal unions to a lesser status. In

24 Loving, the elements of the disability were different as between Caucasians and non-Caucasians,

25 whereas here, the burden on men and women is the same. The distinction might be gender based

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1 if only women could marry a person of the same sex, or if only women could marry a

2 transgendered person, or if the restriction included some other asymmetry between the burdens

3 placed on men and the burdens placed on women. But there is no distinction here between men

4 and women, and the intent behind the law is to prevent homosexuals from marrying.

5

2. The Level of Scrutiny Applicable to Sexual-Orientation-Based Distinctions

6

The Supreme Court has never explicitly stated what level of scrutiny inferior courts are to

7 apply to distinctions drawn according to sexual orientation, though it has implied that rational

8 basis scrutiny applies because it has never applied any higher standard in relevant cases. See, e.g.,

9 Romer, 517 U.S. at 631 32 (citing Heller v. Doe, 509 U.S. 312, 319 20 (1993)) (applying the

10 rational basis standard). The Court of Appeals, however, has ruled that “homosexuals do not

11 constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the

12 equal protection component of the Due Process Clause of the Fifth Amendment.” High Tech 13 Gays, 895 F.2d at 574.1 Although the High Tech Gays court cited to Bowers v. Hardwick, 478

14 U.S. 186 (1986) (holding that private, homosexual activity may be criminalized), which was

15 overruled by Lawrence v. Texas, 539 U.S. 558 (2003), see Golinski v. Office of Pers. Mgmt., 824

16 F. Supp. 2d 968, 983 84 (N.D. Cal. 2012), the Lawrence Court did not adopt any standard of

17 review applicable to distinctions drawn according to sexual orientation for the purposes of equal

18 protection, and therefore Lawrence is not on point for the purposes of the standard of review to

19 be applied, and only the Court of Appeals sitting en banc may overrule High Tech Gays’

20 adoption of the rational basis standard for distinctions drawn according to sexual orientation, see

21 Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).

22

23 1 Although High Tech Gays concerned the “equal protection component” of the Fifth
24 Amendment, see id., “[e]qual protection analysis in the Fifth Amendment area is the same as that
under the [Equal Protection Clause of the] Fourteenth Amendment,” Buckley v. Valeo, 424 U.S. 25 1, 93 (1976).

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1

High Tech Gays’ adoption of rational basis scrutiny for sexual-orientation-based

2 distinctions is not “clearly irreconcilable” with Lawrence such that a district court may ignore it

3 under Miller. Rather, the Court agrees with the Jackson and Dragovic courts, which have ruled

4 that High Tech Gays survived Lawrence in this regard. See Jackson v. Abercrombie, No.

5 11 00734 ACK KSC, 2012 WL 3255201, at *29, (D. Haw. 2012) (ruling that Lawrence did not

6 undercut High Tech Gays’ holding that rational basis scrutiny applies to sexual-orientation-based

7 distinctions); Dragovich v. U.S. Dep’t of the Treasury, No. C 10 01564 CW, 2012 WL 1909603,

8 at *9 (N.D. Cal. 2012) (same). More importantly, as those courts also noted, the Court of

9 Appeals directly ruled just four years ago that High Tech Gays survived Lawrence with respect to

10 the level of scrutiny to be applied in sexual-orientation-based equal protection challenges. See

11 Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008) (citing Philips v. Perry, 106 F.3d

12 1420, 1424 25 (1997) (citing High Tech Gays, 895 F.2d at 574)) (“Philips clearly held that [the

13 Department of Defense’s former ‘don’t ask, don’t tell’ policy] does not violate equal protection

14 under rational basis review, and that holding was not disturbed by Lawrence, which declined to

15 address equal protection.” (citation omitted)).

16

And this would be the result even in the absence of Witt. The Lawrence Court had

17 certified three questions: (1) whether Texas’ anti-sodomy law was infirm under the Equal

18 Protection Clause of the Fourteenth Amendment; (2) whether the law was infirm under the Due

19 Process Clause of the Fourteenth Amendment; and (3) whether Bowers should be overruled. See

20 539 U.S. at 564. The Court resolved the case under the second two questions. See id. (“We

21 conclude the case should be resolved by determining whether the petitioners were free as adults

22 to engage in the private conduct in the exercise of their liberty under the Due Process Clause of

23 the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to

24 reconsider the Court’s holding in Bowers.”). Lawrence’s rejection of Texas’ anti-sodomy law

25 was based upon the Due Process Clause, not upon the Equal Protection Clause. See id. at 578

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1 (“Their right to liberty under the Due Process Clause gives them the full right to engage in their

2 conduct without intervention of the government.”). Bowers in turn had also been decided purely

3 under the Due Process Clause. See Bowers, 478 U.S. at 190 (“The issue presented is whether the

4 Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . . .”);

5 id. at 201 (Blackmun, J., dissenting) (lamenting the Court’s refusal to consider an equal

6 protection challenge).

7

The High Tech Gays court noted that other Courts of Appeals had reasoned that the fact

8 that homosexual behavior could be criminalized outright necessarily precluded a ruling that a

9 group defined by a desire or propensity to engage in such activity could be a suspect or quasi-

10 suspect class for the purposes of equal protection. See 895 F.2d at 571 & n.6. But it simply does

11 not follow that because Bowers independently prevented heightened scrutiny, that heightened

12 scrutiny is necessarily an open question now that Bowers has been overruled. That would be the

13 case if High Tech Gays had relied exclusively upon Bowers, but it did not. The High Tech Gays

14 court’s analysis of whether sexual-orientation-based distinctions deserve heightened scrutiny did

15 not need to rely on Bowers simply because Bowers independently necessitated the result. The

16 High Tech Gays court separately analyzed whether homosexuals constituted a suspect class under

17 the traditional factors and determined they did not. See 895 F.2d at 573 74. The court noted that

18 to obtain recognition as a suspect class for equal protection purposes, the class “must 1) have

19 suffered a history of discrimination; 2) exhibit obvious, immutable, or distinguishing

20 characteristics that define them as a discrete group; and 3) show that they are a minority or

21 politically powerless, or alternatively show that the statutory classification at issue burdens a

22 fundamental right.” Id. at 573 (citing Bowen v. Gilliard, 483 U.S. 587, 602 03 (1987) (citing

23 Lyng v. Castillo, 477 U.S. 635, 638 (1986))). The court found that homosexuals had suffered a

24 history of discrimination, but that homosexuality was not immutable and that homosexuals were

25

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1 not politically powerless because they had successfully lobbied legislatures to pass anti-

2 discrimination legislation protecting them. See id. at 573 74.

3

Although Witt confirmed that Lawrence did not reopen High Tech Gays’ determination

4 that homosexuals are not a suspect or quasi-suspect class, reexamination of the issue today would

5 only tend to tilt the scales further towards rational basis review. First, homosexuals have indeed

6 suffered a history of discrimination, but it is indisputable that public acceptance and legal

7 protection from discrimination has increased enormously for homosexuals, such that this factor is

8 weighted less heavily towards heightened scrutiny than it was in 1990. It is the present state of

9 affairs and any lingering effects of past discrimination that are important to the analysis, not the

10 mere historical facts of discrimination taken in a vacuum. Although historical discrimination

11 taken alone may be relevant to a showing under the second factor, i.e., whether the group is in

12 fact a discretely identifiable group, without a showing of continuing discrimination or lingering

13 effects of past discrimination, the first factor does not tend to support an argument that the group

14 need be protected from majoritarian processes. Unlike members of minority races, for example,

15 homosexuals do not in effect inherit the effects of past discrimination through their parents. That

16 is, members of certain racial minorities are more likely to begin life at a socioeconomic

17 disadvantage because of historical discrimination against their ancestors, the effects of which are

18 passed from parent to child, taking many generations to ameliorate via the later removal of

19 discrimination. On the contrary, homosexuality by its nature, whether chosen or not, is a

20 characteristic particularly unlikely to be passed from parent to child in such a way that the effects

21 of past discrimination against one’s ancestors will have effects upon oneself. In the context of a

22 characteristic like homosexuality, where no lingering effects of past discrimination are inherited,

23 it is contemporary disadvantages that matter for the purposes of assessing disabilities due to

24 discrimination. Any such disabilities with respect to homosexuals have been largely erased since

25 1990.

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1

Second, the Supreme Court has not yet ruled that homosexuality is immutable for the

2 purposes of equal protection, so although public and scientific opinion on the matter may have

3 changed in the intervening years, High Tech Gays’ analysis on the point cannot be

4 countermanded by a district court on that basis. Assuming for the sake of argument that the

5 characteristic is immutable for the purposes of an equal protection analysis, this factor would

6 weigh in favor of heightened scrutiny.

7

Third, and most importantly, the Supreme Court has not ruled that homosexuals lack

8 political power such that High Tech Gays’ determination that they do not lack it has been

9 undermined, and homosexuals have in fact gained significant political power in the years since

10 High Tech Gays was decided. Today, unlike in 1990, the public media are flooded with editorial,

11 commercial, and artistic messages urging the acceptance of homosexuals. Anti-homosexual

12 messages are rare in the national informational and entertainment media, except that anti-

13 homosexual characters are occasionally used as foils for pro-homosexual viewpoints in

14 entertainment media. Homosexuals serve openly in federal and state political offices. The

15 President of the United States has announced his personal acceptance of the concept of same-sex

16 marriage, and the announcement was widely applauded in the national media. Not only has the

17 President expressed his moral support, he has directed the Attorney General not to defend against

18 legal challenges to the Defense of Marriage Act (“DOMA”), a federal law denying recognition to

19 same-sex marriages at the federal level. It is exceedingly rare that a president refuses in his

20 official capacity to defend a democratically enacted federal law in court based upon his personal

21 political disagreements. That the homosexual-rights lobby has achieved this indicates that the

22 group has great political power. The State of Nevada has itself outlawed sexual-orientation-

23 based discrimination as a general matter. See generally Nev. Rev. Stat. ch. 233. Congress has

24 not included the category under Title VII’s protections, however. See 42 U.S.C. § 2000e-2. In

25 2012 America, anti-homosexual viewpoints are widely regarded as uncouth. All in all, the

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1 political power of homosexuals has increased tremendously since 1990 when the High Tech Gays

2 court ruled that the group did not, even then, sufficiently lack political power for the purposes of

3 an equal protection analysis. This factor therefore weighs greatly in favor of rational basis

4 review.

5

The Court respectfully disagrees with the recent conclusion of the Second Circuit to the

6 contrary in a DOMA case. See Windsor v. United States, Nos. 12-2335, 12-2435, 2012 WL

7 4937310 (2nd Cir. 2012). That court concluded: “The question is not whether homosexuals have

8 achieved political successes over the years; they clearly have. The question is whether they have

9 the strength to politically protect themselves from wrongful discrimination.” Id. at *9. That

10 statement is strictly true, but the answer to the second question is powerfully influenced by the

11 answer to the first question, because political success is the most direct, if not defining, indicator

12 of the ability to protect oneself through political processes. The Court believes the test as

13 presented, or at least as applied, by the Second Circuit is little test at all, but rather a reason

14 behind an absolute (or nearly absolute) rule that the Second Circuit has now impliedly adopted,

15 i.e., that a discrete minority group challenging a discriminatory law necessarily lacks political

16 power for the purposes of a level-of-scrutiny analysis based purely upon the fact that the group

17 has not been able democratically to avoid or alter the law it is challenging in a particular case.

18 That result obviates the Supreme Court’s use of political powerlessness as a factor in assessing

19 the level of scrutiny to be applied. If a plaintiff could necessarily win on the political

20 powerlessness factor of the level-of-scrutiny analysis by the very fact that he was unable to

21 challenge a particular law democratically, the factor would be meaningless. Political

22 powerlessness for the purpose of an equal protection analysis does not mean that the members of

23 a group have failed to achieve all of their goals or have failed to achieve the particular goal they

24 aim to achieve via the lawsuit in which the political powerlessness issue is litigated. The English

25 suffix “-less” means “without,” and “powerless” means “without power,” not “without total

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1 power.” If there were no legal space in which a minority group had sufficient political power

2 such that it were not entitled to heightened scrutiny under an equal protection analysis, but where

3 it had failed to succeed democratically on a particular challenged issue, then the analysis of the

4 group’s political power for the purposes of a heightened scrutiny analysis would be no analysis at

5 all a plaintiff would have prevailed on the issue by the mere fact that he had standing to file a

6 lawsuit. What legal space would such reasoning leave for a state to prevail on the Supreme

7 Court’s political powerlessness factor, which inferior courts must presumably treat as a

8 meaningful inquiry?

9

Any minority group can reasonably argue that its political power is less than it might be

10 were the group either not a minority or more popular. That is simply an inherent aspect of

11 democracy. That issue is relevant to the powerlessness analysis, but it is not dispositive of it.

12 There are a myriad of factors in a democratic society that may permit a minority or disfavored

13 group to succeed democratically, such as legislators’ disinclination to be labeled as bigots or

14 even as unreasonable, the desire of another faction to pass legislation on which it needs the first

15 minority’s or their allies’ cooperation, or other factors. The question of “powerlessness” under

16 an equal protection analysis requires that the group’s chances of democratic success be virtually

17 hopeless, not simply that its path to success is difficult or challenging because of democratic

18 forces. Even assuming that homosexuals are themselves under-represented in legislatures, see id.

19 (discussing the practical difficulty in assessing this fact), this does not mean that pro-homosexual

20 legislators are under-represented or that anti-homosexual (or indifferent) legislators cannot be

21 made to compromise democratically. In the present case, it simply cannot be disputed that there

22 have historically been sufficient pro-homosexual legislators (or anti-homosexual and indifferent

23 legislators who can be democratically bargained with) in the State of Nevada to protect

24 homosexuals from oppression as a general matter. See, e.g., Nev. Rev. Stat. §§ 118.020, 233.010,

25 613.330. Plaintiffs’ democratic loss on a particular issue does not prove that they lack political

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1 power for the purposes of an equal protection analysis. That homosexuals cannot protect

2 themselves democratically without aid from other groups is a conclusion that is necessarily true

3 for any minority group by definition, so treating this point as dispositive would avoid any

4 meaningful analysis of the political powerlessness factor. See City of Cleburne v. Cleburne

5 Living Ctr., 473 U.S. 432, 445 (1985) (“Any minority can be said to be powerless to assert direct

6 control over the legislature, but if that were a criterion for higher level scrutiny by the courts,

7 much economic and social legislation would now be suspect.”). The relevant consideration is the

8 group’s “ability to attract the attention of the lawmakers,” an ability homosexuals cannot

9 seriously be said not to possess. See id. The issue of homosexual rights, and particularly the

10 issue of same-sex marriages or quasi-marriage relationships has been front and center in

11 American politics for nearly a decade. Just this month, the People of several more States voted

12 whether to approve or prohibit same-sex marriages.

13

The Windsor court wrote that “it is safe to say that the seemingly small number of

14 acknowledged homosexuals [in positions of power or authority] is attributable either to a

15 hostility that excludes them or to a hostility that keeps their sexual preference private which,

16 for our purposes, amounts to much the same thing.” Id. But it is not necessarily safe to say this.

17 A small number of homosexuals in certain positions of power could just as easily indicate that

18 homosexuals constitute an equally small proportion of the population. The number of open

19 homosexuals in such positions will only “seem[] small” to an observer who assumes that the

20 proportion of homosexuals in society at large is greater than the proportion of open homosexuals

21 in these kinds of positions. And there is a third option the Windsor court did not discuss, i.e.,

22 that the “seemingly” small number of open homosexuals in positions of power or authority may

23 be largely attributable to neither exclusion nor sexual-orientation-based shame that discourages

24 them from identifying themselves, but rather to the fact that people as a general matter and

25 especially people in positions of power and prestige tend not to draw attention to their sexual

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1 practices or preferences, whatever they may be, for social, career, and economic reasons. This

2 natural disinclination of public figures to announce their sexual practices or preferences does not

3 necessarily transform into passive oppression simply because the sexual practices or preferences

4 of a particular subset of persons also happens to be a matter of special social controversy. Lastly,

5 a homosexual person simply need not announce his or her own homosexuality to be active in the

6 fight for homosexual rights. Many advocates of homosexual rights are themselves heterosexual,

7 and there is no need to announce one’s sexual orientation or preferences in order to advocate for

8 homosexual rights. To whatever degree homosexuals have not been able to succeed politically to

9 the extent many people wish, it is clear that, in Nevada at least, homosexuals have been able to

10 enact laws protecting their interests through the democratic process, including laws protecting

11 them from discrimination in areas such as employment and housing, as well as laws creating

12 outright legal status for homosexual relationships.

13

In arguing for heightened scrutiny for gender-based distinctions in 1973, Justice Brennan

14 opined that women’s recent political successes should not be dispositive of the political

15 powerlessness analysis. See Frontiero v. Richardson, 411 U.S. 677, 685 86 (1973) (Brennan, J.) 16 (plurality opinion).2 But even assuming this reasoning were precedential, the reasons with which

17 Justice Brennan supported his conclusion in that case are for the most part not present here.

18 Although women had been able to attract the attention of lawmakers during the early- and mid-

19 Twentieth Century, they had been under-represented democratically for a long time prior to those

20 political successes because they could not vote, such that for centuries their political voice was

21 disproportionately small compared to their numbers. See id. at 685. Women had also been

22 excluded from juries and even been denied the basic right of property ownership for centuries.

23 2Four justices concurred in the judgment, based upon rational basis review. See id. at 691
24 (Stewart, J., concurring in the judgment with Burger, C.J., and Blackmun, J.) (citing Reed v.
Reed, 401 U.S. 71 (1971)); id. (Powell, J., concurring in the judgment) (citing Reed, 401 U.S. 25 71).

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1 See id. Homosexuals have not historically been denied the right to vote, the right to serve on

2 juries, or the right to own property. Although the right to vote could have been lost for

3 conviction under a felony anti-sodomy law, the fraction of homosexuals disenfranchised due to

4 conviction of such crimes was almost certainly minuscule, and the need or desire to keep one’s

5 sexual orientation secret because of such laws, though perhaps regrettable, would have no effect

6 on one’s ability to vote, serve on a jury, or otherwise participate in American democracy. Also,

7 the continued discrimination against women in 1973 was largely due to the high visibility of the

8 sex characteristic, a visibility that the characteristic of homosexuality does not have to nearly the

9 same extent as gender. See id. at 686.

10

The assessment of a group’s disabilities and its political power to remove them is a

11 critical factor in determining whether heightened scrutiny should apply under the Fourteenth

12 Amendment where a particular prohibition is not textually clear, because political power is the

13 factor that speaks directly to whether a court should take the extreme step of removing from the

14 People the ability to legislate in a given area. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411

15 U.S. 1, 28 (1973) (noting that a suspect class is one that is “saddled with such disabilities, or

16 subjected to such a history of purposeful unequal treatment, or relegated to such a position of

17 political powerlessness as to command extraordinary protection from the majoritarian political

18 process”).

19

Gross movements by the judiciary with respect to democratic processes can cause an

20 awkward unbalancing of powers in a Madisonian constitutional democracy3 and undermine both

21

3Justice Powell’s note in concurrence in Frontiero that the plurality’s suggestion of strict

22 scrutiny for gender-based classifications would preempt the democratic adoption of the Equal Rights Amendment (“ERA”) then being considered for ratification by the states was prophetic.

23 See Frontiero, 411 U.S. at 692 (Powell, J., concurring in the judgment). Perhaps because of the

usurpation of the issue by the courts, the state legislatures felt neither the need nor the political

24 pressure to adopt that proposed amendment, which has languished for nearly half a century after

approval by Congress. Because the courts have withdrawn the issue from legislative control,

25 what rational state legislator would risk his political career by attempting to force a vote on the

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1 public confidence in the judiciary and the legitimacy of the government in general. Where a

2 constitutional prohibition is reasonably clear, a court’s removal of the relevant issue from

3 legislative control is largely uncontroversial, and appropriately so, because the People realize that

4 the issue has in fact already been decided democratically, either at the Constitutional Convention

5 or later via the Article V amendment procedure. In such cases, the judiciary does not usurp the

6 democratic process but rather respects and enforces a democratic decision made at the

7 constitutional level as against a more recent democratic attempt to change the law at a lower

8 legislative level.

9

The Constitution and Amendments thereto, which have been ratified by the States,

10 represent a collection of democratic choices adopted in order to control future democratic

11 choices. The Constitution is in this regard a “super statute,” i.e., a statute that controls the

12 enactment of statutes. Cf. H.L.A. Hart, The Concept of Law 81 (2d ed. 1961) (explaining what he

13 calls “primary” and “secondary” rules). When the judiciary interferes with a legislative

14 democratic choice in favor of a constitutional democratic choice, it ensures that a legislature

15 cannot countermand an earlier democratic choice to which the People have assigned a higher

16 level of priority. See Marbury v. Madison, 5 U.S. 137, 176 80 (1803) (Marshall, C.J.). Such an

17 act of “judicial review” is therefore not in derogation of democratic principles, but rather is

18 ultimately in support of them.4

19 ERA where there is no longer any practical need to do so? The supporters of the ERA no longer

exert pressure on the legislatures to act, because they have been satisfied by the courts. A 20 legislator has little to gain by supporting the ERA at this stage but the enmity of the amendment’s

opponents.

21

4It is often said that the Constitution is “anti-democratic” because it restricts legislative

22 choices. But so long as judges read constitutional restrictions reasonably, the process remains democratic at its core, because the Constitution itself was and is subject to democratic forces. It

23 was ratified by the People of the States, and it remains subject to amendment through a defined,

democratic process. By contrast, in some nations, such as in the Islamic Republic of Iran, the

24 process of judicial review is truly anti-democratic, because the standards by which a body such as

the Guardian Council reviews the acts of the legislature are subject not only to a written

25 constitution, but also to the Guardian Council’s interpretation of a religious tradition that is not

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1

But a court must only take such action when the constitutional rule is reasonably clear.

2 The most difficult problems arise when the text of a constitutional provision provides vague

3 standards, such as “equal protection of the laws.” Judges and laymen alike often disagree

4 whether a particular law runs afoul of the vaguer prohibitions of the Constitution. Where a court

5 considers invalidating a democratically adopted law because of a conflict with one of these

6 vaguer clauses, it must tread lightly, lest its rulings appear to the People not to constitute a fair

7 and reasonable enforcement of constitutional restrictions to which they or their ancestors have

8 previously democratically agreed, but rather a usurpation of democratic governance via judicial

9 whim a judicial practice much in vogue today. Where there is no clear prohibition of

10 discrimination according to a particular category, and where the group complaining of

11 discrimination has meaningful political power to protect its own interests, it is inappropriate for a

12 court to remove the issue from legislative control.

13

The States are currently in the midst of an intense democratic debate about the novel

14 concept of same-sex marriage, and homosexuals have meaningful political power to protect their

15 interests. At the state level, homosexuals recently prevailed during the 2012 general elections on

16 same-sex marriage ballot measures in the States of Maine, Maryland, and Washington, and they

17 prevailed against a fourth ballot measure that would have prohibited same sex marriage under the

18 Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other

19
and has never been subject to democratic forces. Whether such a standard is grounded in religion 20 or secular philosophy makes no difference with respect to the issue of self-governance. If the 21 standards by which a judge reviews legislative acts are the product of his private philosophical
views, and not simply a reasonable interpretation of a legal text to which the governed have 22 agreed, he exceeds his lawful power over the governed and to that extent becomes a despot just
as if an executive officer had made the decision himself. Were a court’s opinions in the area of 23 judicial review treated only as advisory, the possibility of harm would not be so great. But so
long as the Executive and the States are not practically free to ignore a court’s opinions in the 24 area of judicial review, but rather will follow them as a matter of course according to the
constitutional culture of the Nation, it makes no difference that the judge himself does not have 25 the power of execution via officers directly in his employ.

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1 recent democratic victories, that homosexuals do not have the ability to protect themselves from

2 discrimination through democratic processes such that extraordinary protection from majoritarian

3 processes is appropriate.5

4

“[D]emocratic institutions are weakened, and confidence in the restraint of the Court is

5 impaired, when we appear unnecessarily to decide sensitive issues of broad social and political

6 importance at the very time they are under consideration within the prescribed constitutional

7 processes.” Frontiero, 401 U.S. at 692 (Powell, J., concurring in the judgment). Only where a

8 discrete minority group’s political power is so weak and ineffective as to make attempts to

9 succeed democratically utterly futile is it even arguably appropriate for a court to remove relevant

10 issues from the democratic process, except where a constitutional prohibition clearly removes the

11 issue from legislative control, in which case a court’s intervention is mandated by democratic

12 constitutional principles. See Marbury, 5 U.S. at 176 80. The Equal Protection Clause of the

13 Fourteenth Amendment does not clearly remove laws distinguishing between persons on the

14 basis of sexual orientation from democratic control. Although the courts have ruled that a

15 challenge to virtually any law is entitled to at least rational basis review under the Equal

16 Protection Clause, the above analysis makes heightened scrutiny inappropriate in this case.

17

The High Tech Gays court also ruled that no fundamental rights were burdened in that

18 case, because there was no fundamental right to homosexual activity. That holding has been

19 directly overruled by the Lawrence Court, but unlike the Department of Defense policy at issue

20 in High Tech Gays that made homosexual activity an automatic trigger for heightened

21 investigative attention when applying for a security clearance, see 895 F.2d at 568, the laws at

22 issue in the present case do not burden the right to private, consensual, homosexual activity that

23 5The fact that national attitudes are shifting in favor of acceptance of same-sex marriage
24 and homosexual rights in general only tends to weaken the argument that homosexuals require
extraordinary protection from majoritarian processes via heightened scrutiny under the Equal 25 Protection Clause.

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1 the Lawrence Court recognized. The rights burdened under the challenged laws in this case are

2 certain state-created rights, such as the right to have one’s partner covered under an employer-

3 provided health insurance plan and the right to enter into a marriage or quasi-marriage

4 relationship with a sixteen or seventeen year-old person if that person’s parent or guardian

5 consents, see supra, which rights are not fundamental. Although there is a fundamental right to

6 “marry,” that right consists substantively of the ability to establish a family, raise children, and,

7 in certain contexts, maintain privacy. Zablocki v. Redhail, 434 U.S. 374, 383 84 (1978)

8 (collecting cases). It is these components that comprise the fundamental “right to marry”

9 recognized under the Fourteenth Amendment, not the civil benefits and responsibilities

10 accompanying the legal status of marriage, which vary from state to state. Although the title of

11 “marriage” has been withheld, the State of Nevada has burdened none of the core substantive

12 rights that comprise the right to marry, sometimes referred to as the “constitutional incidents of

13 marriage.” Plaintiffs may establish legally cognizable families under Nevada’s domestic

14 partnership laws an option that was not available to Mr. Redhail in 1978 Wisconsin.

15

It is also worth noting that Nevada’s laws do not purport to prevent (nor could they under

16 the First Amendment prevent) the private use of the word “marriage” in the context of same-sex

17 relationships, and same-sex couples will of course use the word if they wish to. This has no

18 bearing on whether the State must give the title its imprimatur.

19

Finally, the right to privacy is not implicated here, as Plaintiffs desire not to be left alone,

20 but, on the contrary, desire to obtain public recognition of their relationships. In summary, no

21 fundamental rights are burdened by Nevada’s marriage domestic partnership regime. Because

22 homosexuals are not a suspect or quasi-suspect class, and because the laws at issue burden no

23 fundamental rights, rational basis scrutiny applies.

24 ///

25 ///

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1

3. Application of Rational Basis Scrutiny

2

Under rational basis review, a court does not judge the perceived wisdom or fairness of a

3 law, nor does it examine the actual rationale for the law when adopted, but asks only whether

4 “there is any reasonably conceivable state of facts that could provide a rational basis for the

5 classification.” Heller, 509 U.S. at 319 20 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S.

6 307, 313 (1993)). Those challenging a law on rational basis grounds “have the burden to

7 negat[e] every conceivable basis which might support it.” Diaz v. Brewer, 676 F.3d 823, 826 (9th

8 Cir. 2012) (O’Scannlain, J., dissenting from order denying rehearing en banc) (quoting Beach

9 Commc’ns, 508 U.S. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356,

10 364 (1973))) (alteration in Diaz; internal quotation marks omitted)). The question of rationality

11 is a matter of law for which a state need not provide evidence but may rely on speculation alone.

12 Heller, 509 U.S. at 320. In the summary judgment context, if the facts determining a question

13 that is subject only to rational basis review are “at least debatable,” the state is entitled to

14 summary judgment. See Jackson, 2012 WL 3255201, at *33 (citing Vance v. Bradley, 440 U.S.

15 93, 110 11 (1979); Lupert v. Cal. State Bar, 761 F.2d 1325, 1328 (1985)).

16

The protection of the traditional institution of marriage, which is a conceivable basis for

17 the distinction drawn in this case, is a legitimate state interest. Although traditional moral

18 disapproval is not alone a valid state interest for prohibiting private, consensual activity, see

19 Lawrence, 539 U.S. at 577 78 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)), civil

20 marriage is at least partially a public activity, and preventing “abuse of an institution the law

21 protects” is a valid state interest, see id. at 567. More specifically:

22

That [the Texas anti-sodomy law] as applied to private, consensual conduct

is unconstitutional under the Equal Protection Clause does not mean that other laws

23

distinguishing between heterosexuals and homosexuals would similarly fail under

rational basis review. Texas cannot assert any legitimate state interest here, such as

24

national security or preserving the traditional institution of marriage. Unlike the

moral disapproval of same-sex relations the asserted state interest in this

25

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1

case other reasons exist to promote the institution of marriage beyond mere moral

disapproval of an excluded group.

2

Id. at 585 (O’Connor, J., concurring in the judgment) (emphases added). The Lawrence Court

3

appears to have strongly implied that in an appropriate case, such as the present one, the

4

preservation of the traditional institution of marriage should be considered a legitimate state

5

interest rationally related to prohibiting same-sex marriage. See id. at 578 (majority opinion)

6

(“The present case does not involve . . . whether the government must give formal recognition to

7

any relationship that homosexual persons seek to enter.”). The State of Nevada has made

8

available to same-sex partners the vast majority of the civil rights and responsibilities of

9

marriage, and it has made all of the fundamental rights comprising the “right to marry” available

10

via the domestic partnership laws, even assuming for the sake of argument that it is the “right to

11

marry” or the “right to marry a person of one’s choice,” and not the “right to marry a person of

12

the same sex” that is at issue. The State has not crossed the constitutional line by maintaining

13

minor differences in civil rights and responsibilities that are not themselves fundamental rights

14

comprising the constitutional component of the right to marriage, or by reserving the label of

15

“marriage” for one-man one-woman couples in a culturally and historically accurate way. And

16

unlike in Perry, the State of Nevada has not stripped away any existing right to the title of

17

“marriage” while leaving its constitutional incidents in place. See Perry, 671 F.3d at 1076 78.

18

As Justice O’Connor noted in concurrence in Lawrence, there are additional reasons to

19

promote the traditional institution of marriage apart from mere moral disapproval of homosexual

20

behavior, and these reasons provide a rational basis for distinguishing between opposite-sex and

21

same-sex couples in the context of civil marriage. Human beings are created through the

22

conjugation of one man and one woman. The percentage of human beings conceived through

23

non-traditional methods is minuscule, and adoption, the form of child-rearing in which same-sex

24

couples may typically participate together, is not an alternative means of creating children, but

25

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1 rather a social backstop for when traditional biological families fail. The perpetuation of the
2 human race depends upon traditional procreation between men and women. The institution
3 developed in our society, its predecessor societies, and by nearly all societies on Earth throughout
4 history to solidify, standardize, and legalize the relationship between a man, a woman, and their
5 offspring, is civil marriage between one man and one woman. See Maynard v. Hill, 125 U.S. 190,
6 211 (1888) (“It is an institution, in the maintenance of which in its purity the public is deeply
7 interested, for it is the foundation of the family and of society, without which there would be
8 neither civilization nor progress.”).6 Should that institution be expanded to include same-sex
9 couples with the state’s imprimatur, it is conceivable that a meaningful percentage of
10 heterosexual persons would cease to value the civil institution as highly as they previously had
11 and hence enter into it less frequently, opting for purely private ceremonies, if any, whether
12 religious or secular, but in any case without civil sanction, because they no longer wish to be
13 associated with the civil institution as redefined,7 leading to an increased percentage of out-of-
14 6 Plaintiffs’ historical and sociological experts attest that marriage has changed in various
15 ways throughout history, that homosexuality is no longer considered a “disorder” by mainstream psychiatrists and sociologists, that same-sex couples can be suitable parents, that same-sex
16 marriage would not harm traditional marriages, that there is and has been discrimination against homosexuals, that they lack political power, and even concerning the alleged economic impact of
17 the challenged laws, but even assuming the Court were to find all of these opinions credible a finding the Court need not make in the rational basis context none of Plaintiffs’ experts attest
18 that same sex marriage has ever been recognized in the history of the Anglo-American peoples except very recently and sporadically. (See generally Cott. Decl., Sept. 4, 2012, ECF No. 86-2, at
19 3; Peplau Decl., Aug. 20, 2012, ECF No. 86-2, at 45; Badgett Decl., Spet. 7, 2012, ECF No. 86-
20 2, at 92; Chauncey Decl., June 27, 2012, ECF No. 86-2, at 132; Segura Decl., Sept. 5, 2012, ECF No. 86-3, at 3; Lamb Decl., Aug. 27, 2012, ECF No. 86-3, at 57). The level of scrutiny is
21 controlled by precedent in this case. Because that level of scrutiny is rational basis scrutiny, the Court need not examine the parties’ evidence (which evidence is, in any case, better
22 characterized as dueling collections of sociological opinions as opposed to scientific or other specialized evidence). The State need only have a conceivable basis for its laws.
23 7 Some commentators have argued that the fact that same-sex couples may marry takes
24 nothing from the value of an opposite-sex couple’s marriage. See, e.g., Michael Mello, For Today, I’m Gay: The Unfinished Battle for Same-Sex Marriage in Vermont, 25 Vt. L. Rev. 149,
25 229 (2000). Traditional spouses will have lost no rights, after all. But the legal question under

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1 wedlock children, single-parent families, difficulties in property disputes after the dissolution of

2 what amount to common law marriages in a state where such marriages are not recognized, or

3 other unforeseen consequences. See Jackson, 2012 WL 3255201, at *39 41. Because the family

4 is the basic societal unit, the State could have validly reasoned that the consequences of altering

5 the traditional definition of civil marriage could be severe. See id. at *44 (“[I]t is not beyond

6 rational speculation to conclude that fundamentally altering the definition of marriage to include

7 same-sex unions might result in undermining the societal understanding of the link between

8 marriage, procreation, and family structure.”). The Court finds Judge Kay’s conclusions

9 concerning the rational bases for Hawaii’s marriage civil union regime equally persuasive as

10 applied to Nevada’s marriage domestic partnership regime. See id. at *38 45.

11

Although a nontrivial argument can be made that the nature of marriage as a

12 philosophical matter is any exclusive romantic relationship between any two (or more) persons,

13 or some other such definition, and that the condition that the partners in a marriage must be one

14 man and one woman is only a special case no matter how historically consistent, the State of

15 Nevada need not eschew tradition in the name of philosophical purity, not in the context of

16 rational basis review, anyway, and certainly not where the philosophical issue is itself

17 controversial. The legal question is not whether Plaintiffs have any conceivable rational

18

19 rational basis review is not whether spouses or prospective spouses have good reasons (in a
20 court’s reckoning) for believing that their marriages will be harmed by the inclusion of same-sex couples in the institution of civil marriage. The question is whether the State has any
21 conceivable basis, even speculatively, to believe that spouses or prospective spouses might feel this way, for whatever reason, and that their reaction to the redefinition of civil marriage to
22 include same-sex couples might have detrimental societal effects. See Jackson, 2012 WL 3255201, at *44. One might argue by analogy that the expected reaction of bigots would be an
23 insufficient reason for a state to refuse to implement policies of racial equality, but the analogy
would be flawed, because race-based distinctions command strict scrutiny under the Equal 24 Protection Clause, whereas sexual-orientation-based restrictions command only rational basis
scrutiny. 25

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1 philosophical argument concerning the nature of marriage. They do.8 The legal question is

2 whether the State of Nevada has any conceivable rational basis for the distinction it has drawn. It

3 does, and the laws at issue in this case therefore survive rational basis review under the Equal 4 Protection Clause.9

5

Plaintiffs also argue that because the State has provided for domestic partnerships with

6 most of the same rights and responsibilities that accompany civil marriage, the State has

7 necessarily abandoned any possible basis for withholding the title of “marriage” apart from the

8 sole and improper purpose of stigmatizing Plaintiffs. But the Court finds that there are rational

9 bases for withholding the title of marriage. See supra. The conceivable benefits to society from

10 maintaining a distinction between traditional marriage and same-sex domestic partnerships

11 provide a rational basis for the State of Nevada to maintain the distinction, even if one result of

12 the distinction is the stigmatization of same-sex relationships or if bias was one motivating

13 factor. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (citing Cleburne, 473

14 U.S. at 448) (noting that even where animus is a motivating factor, a law survives rational basis

15 review where there is also a conceivable legitimate purpose behind it). Preserving the traditional

16 institution of marriage is different from the mere moral disapproval of a disfavored group,

17 8If the State were to adopt a “genderless marriage” regime, it would almost certainly
18 withstand a putative equal protection attack by opposite-sex spouses arguing that the state had no
rational basis for implementing genderless marriage because of some perceived reduction in the 19 prestige of their traditional marriages, i.e., a putative “reverse stigma” argument. Where both
sides of an issue have fair arguments, the State may choose between them without risking an 20 equal protection violation under rational basis review.

21

9 As to a putative due process challenge, which Plaintiffs do not bring, unlike laws against

homosexual activity per se, which were not prevalent in the United States until the late

22 Nineteenth Century and therefore have no “ancient roots,” see Lawrence, 539 U.S. at 568 70, the prohibition against same-sex civil marriage has been nearly ubiquitous since antiquity, see, e.g.,

23 Andersen v. King Cnty., 138 P.3d 963, 976 77 (Wash. 2006) (en banc) (collecting cases). Until

very recently, it has been utterly unknown to the history or traditions of this Nation, and it is still

24 unknown in the vast majority of American jurisdictions, as well as in the vast majority of

international jurisdictions. Unlike private, consensual, homosexual activity, therefore, same-sex

25 civil marriage is not a fundamental right.

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1 Massachusetts v. HHS, 682 F.3d 1, 16 (1st Cir. 2012), and the positive benefits of preserving the

2 distinction need only be conceivable for the state’s laws to stand. Plaintiffs argue that preserving

3 the traditional institution of marriage as between one man and one woman necessarily excludes

4 same-sex couples, based at least in part upon a normative bias. But this is permitted so long as

5 preserving the traditional institution of marriage is a legitimate state interest in-and-of-itself and

6 any attendant bias is based upon a distinction subject only to rational basis review. See Cleburne,

7 473 U.S. at 448.

8

Plaintiffs’ argument that Nevada’s creation of a parallel but differently titled civil

9 institution for same-sex relationships necessarily renders the State’s pre-existing prohibition

10 against same-sex marriages invalid, if accepted, would permit a plaintiff to show an equal

11 protection violation by the very fact that a state had recently increased his rights in relevant

12 respects, which is not the law. Cf. Jackson, 2012 WL 3255201, at *37 (noting that such a holding

13 would both discourage the states from experimenting with social change for fear of

14 constitutionalizing issues and would provide perverse incentives for the states to withhold

15 rights). Perhaps if there had previously been no such institution as civil marriage, and if the State

16 of Nevada had simultaneously, or nearly so, created both the institutions of civil marriage and

17 domestic partnership, excluding only same-sex couples from one but not the other, Plaintiffs’

18 stigmatization argument would carry more weight. In such a case, although same-sex partners’

19 rights would have been increased by the State in an absolute sense, their rights with respect to

20 other persons’ rights would have been simultaneously decreased, indicating a potential

21 constitutional harm. Here, the State of Nevada has only increased Plaintiffs’ rights and has not

22 simultaneously decreased them with respect to other persons’ rights. The traditional form of civil

23 marriage predates the State of Nevada by many centuries, having existed in the same form in the

24 relevant respect (one man and one woman) for millennia in Nevada’s predecessor societies. The

25 State of Nevada’s extension of the fundamental (and most of the civil) incidents of marriage to

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1 same-sex couples in recent years cannot reasonably be said to reflect anti-homosexual animosity

2 under these circumstances, but only benevolence. Perceiving a violative malevolence in the

3 expansion of rights alone is possible only if one presupposes that there is an additional right

4 being withheld, which reasoning is circular. Where a minority group’s rights have not been

5 decreased by a state’s acts either absolutely or in relation to other person’s rights, the proffered

6 additional right must stand on its own.

7

Furthermore, standing in this case cannot be based upon an allegation of harm consisting

8 of pure stigma, because the relief Plaintiffs seek cannot redress that measure of harm. See Lujan

9 v. Defenders of Wildlife, 504 U.S. 555, 568 (1992). Any stigma arising out of the State’s refusal

10 to recognize same-sex relationships as “marriages” simply cannot be removed by judicial decree.

11 In some cases, where the stigma complained of is entirely created by the state, as in the

12 hypothetical example given above, a judicial decree might remedy it. Here, however, one-

13 man one-woman civil marriage is a longstanding institution not created by State of Nevada, and

14 the decision not to recognize same-sex marriages was adopted by the People through ballot

15 initiative. It is not plausible that the People of the State of Nevada will change their views on the

16 matter because of any judicial decree or proclamation by the State (voluntary or not) that

17 conflicts with their private beliefs concerning the nature of marriage. Nor can a judicial decree

18 cure the State’s own contribution to any stigma, because an act or statement made involuntarily is

19 not, and will be known both by Plaintiffs and the rest of the populace not to be, a genuine

20 reflection of the State’s viewpoint, which is, of course, simply the collection of the viewpoints of

21 its citizens. That is, the People will know because they know their own opinions that the

22 State of Nevada does not approve of same-sex marriages despite the fact that it has been forced

23 by judicial decree to act as if it does. This is not to say that Plaintiffs have no recourse, but they

24 must rely on more than pure stigma as the measure of harm. Plaintiffs must rely on a measure of

25

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1 harm that the Court can actually redress, i.e., the denial of equal treatment under the law itself.

2 The Court has addressed Plaintiffs’ claim in this regard under the relevant standards.

3

4. Romer v. Evans

4

There is an additional line of cases to consider when a state withdraws an existing right or

5 enacts sweeping, draconian changes in a minority group’s legal status, and the Court finds that

6 analysis under this line of cases is not precluded by Baker. In Romer, the Supreme Court ruled

7 that a law born of animosity for a discrete minority group that withdraws existing rights from the

8 group, or which effects a sweeping change in the legal status of the group, does not survive

9 rational basis review under the Equal Protection Clause. See 517 U.S. at 627 (“The amendment

10 withdraws from homosexuals, but no others, specific legal protection from the injuries caused by

11 discrimination, and it forbids reinstatement of these laws and policies”).10

12

Based upon Romer, the Court of Appeals recently struck down an amendment to the

13 California Constitution that had withdrawn an existing state law right to same-sex marriage while

14 leaving the constitutional incidents of marriage in place via the domestic partnership laws. See

15 Perry, 671 F.3d at 1076 (citing Romer, 517 U.S. at 634 35) (“Proposition 8 singles out same-sex

16 couples for unequal treatment by taking away from them alone the right to marry, and this action

17 amounts to a distinct constitutional violation because the Equal Protection Clause protects

18 minority groups from being targeted for the deprivation of an existing right without a legitimate

19 reason.”). The Perry court, however, explicitly declined to address whether the amendment

20 would have failed under the Fourteenth Amendment had there never been a right to same-sex

21

10The Perry Court struck down the amendment to the California Constitution enacted via

22 Proposition 8 because it believed Romer prevented the targeted withdrawal of any right whatsoever from a minority group, whereas the dissent believed Romer prevented only sweeping

23 changes in a minority group’s legal status. In other words, the dispositive disagreement in that

case concerned the meaning of Romer, which is somewhat cryptic as to its applicability beyond

24 the facts of that case itself. Although the Romer doctrine is still nascent and controversial, the

Court will for the sake of argument assume that either type of state action withdrawal of an

25 existing right or a sweeping change in legal status is infirm under Romer.

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1 marriage in California. See id. at 1064. The dispositive issue in Perry was that the State of

2 California had targeted a discrete group and withdrawn an existing right from its members. See

3 id. at 1076. The People of California had only withdrawn from same-sex couples the right to the

4 title of “marriage,” while leaving the constitutional incidents of marriage in place via a domestic

5 partnership regime. See id. at 1077 78 (“Proposition 8 did not affect [certain civil incidents of

6 marriage under California law] or any of the other constitutionally based incidents of marriage

7 guaranteed to same-sex couples and their families. In adopting the amendment, the People

8 simply took the designation of marriage away from lifelong same-sex partnerships, and with it

9 the State’s authorization of that official status . . . .” (citations and internal quotation marks

10 omitted)). The Court of Appeals ruled that the right to the title of marriage was concrete enough

11 to establish an injury (though not itself of constitutional dimension), and that the withdrawal of

12 the right to the title of marriage was therefore unconstitutional under Romer regardless of the

13 constitutional dimension of the right itself. See id. at 1096 (“By using their initiative power to

14 target a minority group and withdraw a right that it possessed, without a legitimate reason for

15 doing so, the People of California violated the Equal Protection Clause.”).

16

Because there has never been a right to same-sex marriage in Nevada, Romer and Perry

17 are inapplicable here as to NRS section 122.020. That section of the NRS removed no

18 preexisting right and effected no change whatsoever to the legal status of homosexuals when

19 adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65

20 (1861 1873).

21

It can be argued, however, that Section 21 removed an existing right for the purposes of a

22 Romer analysis. Section 21 did not remove any preexisting right to the formation of same-sex

23 marriage, but it did make it more difficult to change section 122.020 and other statutes through

24 the democratic process. Before the adoption of Section 21, the People of the State of Nevada

25 could have democratically altered section 122.020 via legislation to provide for same sex

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1 marriages. Section 21 removed their ability to do so. Although homosexuals have meaningful

2 political power, they would now have to convince their fellow citizens to amend the Nevada

3 Constitution to achieve the particular democratic goal of legalizing same-sex marriage in

4 Nevada, and it is more difficult to amend the Nevada Constitution than it is to amend the NRS.

5

The Romer Court does not, however, appear to have announced a general constitutional

6 principle that any state action making it more difficult for the People to achieve a particular goal

7 in aid of the rights of a discrete minority group through democratic processes is necessarily

8 infirm under the Equal Protection Clause. Such a rule would be so broad and dramatic as to be 9 unmistakable when announced.11 Rather, the Romer Court emphasized the insidious nature of

10 laws that impose general hardships, as contrasted with laws imposing only particular disabilities.

11 See 517 U.S. at 633 (“Respect for this principle explains why laws singling out a certain class of

12 citizens for disfavored legal status or general hardships are rare. A law declaring that in general

13 it shall be more difficult for one group of citizens than for all others to seek aid from the

14 government is itself a denial of equal protection of the laws in the most literal sense.” (emphases

15 added)). That is not to say that laws imposing particular disabilities are immune from equal

16 protection challenges, but it is to say that such challenges are governed by traditional equal

17 protection principles, not by Romer, which governs only the imposition of generalized

18 disabilities upon a disfavored group.

19

20
11Although, according to a separate line of cases not argued by the parties, an equal 21
protection violation may result from a law making it more difficult for members of a racial 22 minority group to protect themselves through democratic processes, such violations only occur in
the context of race. Hunter v. Erickson, 393 U.S. 385, 391 93 (1969); Coalition to Defend 23 Affirmative Action v. Regents of the Univ. of Mich., ---F.3d ----, 2012 WL 5519918, at *8 (6th
Cir. 2012). Also, the Hunter principal applies only when the racial classification appears on the 24 face of the challenged law. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 484 85 (1982).
Section 21 contains no facial distinction on the basis of sexual orientation, much less on the basis 25 of race.

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1

Where a legitimate state purpose is furthered by the challenged legislation, as here, it

2 survives an equal protection analysis at the rational basis level. There was no legitimate state

3 purpose behind the challenged law in Romer, because the sole conceivable purpose there was

4 anti-homosexual animus. See id. at 634 35. Colorado’s constitutional provision “prohibit[ed] all

5 legislative, executive or judicial action at any level of state or local government designed to

6 protect the named class,” id. at 624, effected a “[s]weeping and comprehensive . . . change in

7 legal status,” id. at 627, and was “inexplicable by anything but animus toward the class it

8 affect[ed],” id. at 632. Section 21, by contrast, imposes a single, particularized disability, not a

9 broad, sweeping change in legal status, and it was not passed without any legitimate purpose.

10 Romer was an extreme case concerning a novel and ambitious type of law a law that identified

11 a minority group and declared that no organ of the State of Colorado should dare attempt to

12 protect the group under the law. That kind of law is prevalent only under totalitarian regimes,

13 and the Romer Court noted that it was totally outside of American constitutional traditions to

14 enact such laws. See id. at 633. Section 21 is not in the character of the constitutional provision

15 struck down in Romer. It does not purport to remove any of the many protections already in

16 place in the State of Nevada prohibiting discrimination on the basis of sexual orientation or to

17 prevent the adoption of additional protections. It prevents only the amendment of state statutes

18 to provide for same-sex marriage a targeted discrimination, to be sure, but one based upon a

19 distinction subject only to rational basis review, based at least in part upon a legitimate state

20 interest, i.e., the protection of the traditional institution of marriage, and not based purely upon

21 anti-homosexual animus, as the constitutional provision in Romer was. Section 21 therefore

22 survives Romer review.

23

Because the maintenance of the traditional institution of civil marriage as between one

24 man and one woman is a legitimate state interest, because the exclusion of same-sex couples

25 from the institution of civil marriage is rationally related to furthering that interest, and because

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1 the challenged laws neither withdraw any existing rights nor effect a broad change in the legal 2 status or protections of homosexuals based upon pure animus, the State is entitled to summary 3 judgment. As to those Plaintiffs validly married in other jurisdictions whose marriages the State 4 of Nevada refuses to recognize, the protection of Nevada’s public policy is a valid reason for the 5 State’s refusal to credit the judgment of another state, lest other states be able to dictate the 6 public policy of Nevada. See Nevada v. Hall, 440 U.S. 410, 423 24 (1979) (“Full Faith and 7 Credit does not . . . enable one state to legislate for the other or to project its laws across state 8 lines so as to preclude the other from prescribing for itself the legal consequences of acts within 9 it.” (quoting Pac. Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493, 504 05 (1939))). 10 /// 11 /// 12 //// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 ///

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1

CONCLUSION

2

IT IS HEREBY ORDERED that the Motions to Dismiss (ECF Nos. 32, 33) are

3 GRANTED IN PART and DENIED IN PART. The Complaint is dismissed as precluded by

4 Baker v. Nelson with respect to the traditional equal protection challenge, but the Complaint is

5 not dismissed with respect to the challenge under Romer v. Evans.

6

IT IS FURTHER ORDERED that the Motions for Summary Judgment (ECF Nos. 72, 74,

7 85) are GRANTED.

8

IT IS FURTHER ORDERED that the Motion for Summary Judgment (ECF No. 86) is

9 DENIED.

10

IT IS FURTHER ORDERED that the Motion for Leave to File Reply (ECF No. 100) is

11 DENIED. No party has been permitted to file a reply. The arguments have been

12 comprehensively presented, and no reply is necessary to preserve the relevant issues on appeal.

13

IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

14

IT IS SO ORDERED.

15 DATED: This 26th day of November, 2012.

16

17

____________________________

__

ROBERT C. JONES

18

United States District Judge

19

20

21

22

23

24

25

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Tara L. Borelli

.

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Case No. 12-17668

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and
COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge.

PLAINTIFFS-APPELLANTS’ EXCERPTS OF RECORD VOLUME 2 OF 5

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600

Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY &
MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes
Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

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INDEX TO EXCERPTS OF RECORD

Volume 1 of 5

Date Filed

Document Description

12/3/2012 Judgment in a Civil Case

Dist. Ct. Dkt. No.
103

ER Pg. No.
1

11/26/2012 Order on Motion to Dismiss and Cross-Motions for Summary Judgment

102

2

Volume 2 of 5

Date Filed

Document Description

12/3/2012 Plaintiffs’ Notice of Appeal (exhibits omitted)

Dist. Ct. Dkt. No.
104

ER Pg. No.
43

11/08/2012 Plaintiffs’ Motion for Leave to File Summary

100

46

Judgment Reply Brief

.

.

Exhibit A – Plaintiffs’ Brief in Reply to the 100-1

50

Coalition’s Opposition

.

.

Exhibit B – Declaration of Michael Lamb, 100-2

56

Ph.D.

.

.

Exhibit 1 – Article

66

Exhibit 2 – Trial transcript excerpts

71

Exhibit C – Declaration of Tara Borelli

100-3

85

10/25/2012 Supplemental Declaration of Michael Lamb,

98-1

131

Ph.D. in Support of Plaintiffs’ Summary

Judgment Opposition

10/25/2012 Supplemental Declaration of Letitia Anne Peplau, Ph.D. in Support of Plaintiffs’ Summary Judgment Opposition

98-2

139

i

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Volume 2 of 5, continued

Date Filed

Document Description

9/10/2012

Plaintiffs’ Request for Judicial Notice in Support of Plaintiffs’ Motion for Summary Judgment
Exhibit A – Pages from Carson City ClerkRecorder website
Exhibit B – Page from Clark County Clerk website
Exhibit C – Ballot results for Question 2 (2000)
Exhibit D – Ballot results for Question 2 (2002)
Exhibit E – Excerpt from Social Security Administration manual
Exhibit F – Page from Nevada DMV website

Dist. Ct. Dkt. No.
87

ER Pg. No.
143 . .
148 .
157 .
159 .
165 .
170 .
174

Appendix to Plaintiffs’ Motion for Summary

86-1

177

Judgment, Vol. 1

.

Declaration of Beverly Sevcik

179

Declaration of Mary Baranovich

184

Declaration of Theodore Small

189

Declaration of Antioco Carrillo

194

Declaration of Karen Goody

199

Declaration of Karen Vibe

203

Declaration of Greg Flamer

208

Declaration of Fletcher Whitwell

212

Declaration of Mikyla Miller

216

Declaration of Katrina Miller

220

ii

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Date Filed 9/10/2012

Volume 2 of 5, continued

Document Description
Declaration of Adele Newberry Declaration of Tara Newberry Declaration of Caren Cafferata-Jenkins Declaration of Farrell Cafferata-Jenkins Declaration of Sara Geiger Declaration of Megan Lanz Declaration of Tara Borelli
Exhibit A – Campaign flyer relating to Question 2 Exhibit B – Letter from the Coalition for the Protection of Marriage relating to Question 2 (August 2002)

Dist. Ct. Dkt. No.
86-1

ER Pg. No.
224 228 232 236 240 245 249 251
. 253

Volume 3 of 5

Date Filed

Document Description

9/10/2012 Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 2 Declaration of Nancy F. Cott, Ph.D. Declaration of Letitia Anne Peplau, Ph.D. Declaration of M.V. Lee Badgett, Ph.D Declaration of George Chauncey, Ph.D.

Dist. Ct. Dkt. No.
86-2

ER Pg. No.
258

260 302 349 389

iii

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Date Filed

Volume 4 of 5 Document Description

9/10/2012

Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 3
Declaration of Gary M. Segura, Ph.D.
Declaration of Michael Lamb, Ph.D.

Dist. Ct. Dkt. No.
86-3

ER Pg. No.
442

444 498

8/10/2012 Transcript of Motion Hearing

69

640

Date Filed

Volume 5 of 5 Document Description

5/18/2012 Answer of Amy Harvey, Washoe County Clerk

5/18/2012 Answer of Diana Alba, Clark County Clerk

4/10/2012 Complaint for Declaratory and Injunctive Relief (minor names redacted)

--

U.S. District Court Docket Sheet

Dist. Ct. Dkt. No.
35

ER Pg. No.
673

34

691

1

695

--

725

iv

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

PLAINTIFFS’ NOTICE OF APPEAL

21

v.

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 43

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1

Notice is hereby given pursuant to Fed. R. App. P. 3 that all Plaintiffs, through counsel,

2 respectfully appeal to the United States Court of Appeals for the Ninth Circuit the District Court’s

3 November 26, 2012 order, Dkt. 102, and final judgment, Dkt. 103, insofar as they (i) grant the

4 motion to dismiss filed by Defendant Sandoval, Dkt. 32, and joined by Defendant Glover, Dkt.

5 33; (ii) grant the motions for summary judgment filed by Defendant Sandoval, Dkt. 85, Defendant

6 Glover, Dkt. 74, and Defendant-Intervenor Coalition for the Protection of Marriage, Dkt. 72; (iii)

7 deny Plaintiffs’ motion for summary judgment, Dkt. 86; and (iv) deny Plaintiffs’ motion for leave

8 to file a summary judgment reply brief and supporting declarations, Dkt. 100 through 100-4.

9

The statutory basis for this appeal is 28 U.S.C. § 1291. A copy of the order and a copy of

10 the final judgment are attached hereto as Exhibits A and B, respectively.

11

12 DATED: December 3, 2012

13 Respectfully submitted,

14 LAMBDA LEGAL DEFENSE AND

CARLA CHRISTOFFERSON (pro hac vice)

15 EDUCATION FUND, INC.

DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)

16 /s/ Tara L. Borelli JON W. DAVIDSON (pro hac vice)
17 TARA L. BORELLI (pro hac vice)

RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP 400 South Hope Street

PETER C. RENN (pro hac vice) 18 SHELBI DAY (pro hac vice)

Los Angeles, California 90071

19 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010

20 KELLY H. DOVE (Nevada Bar No. 10569)
21 MAREK P. BUTE (Nevada Bar No. 09989)

SNELL & WILMER LLP 22 3883 Howard Hughes Parkway, Suite 1100

23 Las Vegas, Nevada 89169

24 Attorneys for Plaintiffs

25

26

27

28

- 2 -
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1

CERTIFICATE OF SERVICE

2

I hereby certify that I will electronically file the foregoing with the Clerk of the Court for

3 the United States District Court, District of Nevada by using the CM/ECF system on December

4 3, 2012. All participants in the case are registered CM/ECF users, and will be served by the

5 CM/ECF system.

6

7

By: /s/ Tara L. Borelli

Tara L. Borelli

8

3325 Wilshire Boulevard, Suite 1300

Los Angeles, CA 90010 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 3 -
ER 45

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

PLAINTIFFS’ MOTION FOR LEAVE TO FILE SUMMARY JUDGMENT REPLY BRIEF AND SUPPORTING DECLARATIONS OF MICHAEL LAMB, PH.D. AND TARA BORELLI

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 46

CaseC:a1s2e-127:1626-8cv-01005/7188-/R20C1J3-PAL DIDo:c8u8m2e8n0t31800 DFktiElendtr1y1: /2008-/512 Page:210ofo4f 221(198 of 928)

1

Plaintiffs respectfully move this Court for an order permitting them to file a brief in reply

2 to the opposition of Defendant-Intervenor Coalition for the Protection of Marriage (the

3 “Coalition”) to Plaintiffs’ motion for summary judgment, in order to address new material raised

4 for the first time in the Coalition’s opposition brief and the Coalition’s related filings.

5

At a prior August 10, 2012 hearing setting a schedule for any motions for summary

6 judgment, this Court expressly noted that parties could seek leave to file reply briefs:

7

If you feel the need because of a response or something raised brand-new in the response

for the first time, then, of course, you can ask for permission and the Court will

8

undoubtedly grant you permission to file a reply for newly-raised issues in a response. …

So if in the response for the first time a party is raising something anew, of course, ask

9

permission and I'll give you permission to reply to that item.

10 Transcript of Motion Hearing, August 10, 2012, Dkt. 69 at 16:18-22, and 17:3-5. Plaintiffs seek

11 leave to address new matters raised for the first time in both the Coalition’s opposition to

12 Plaintiffs’ motion for summary judgment, Dkt. 95, and in a supplement to the Coalition’s index

13 that the Coalition untimely filed after the deadline had passed for opposition briefs, Dkt. 99.

14

On October 25, 2012, the Coalition filed its opposition to Plaintiffs’ motion for summary

15 judgment raising new arguments regarding the consistency of the testimony of Michael Lamb,

16 Ph.D., Plaintiffs’ expert on children development, and about the qualifications of two authors for

17 certain sources cited by the Coalition in opposition to Dr. Lamb’s testimony. Dkt. 95 at 14-15.

18 In addition to these new arguments, the Coalition also submitted a previously undisclosed article

19 that contains a range of factual assertions about Dr. Lamb and claims to find contradictions in Dr.

20 Lamb’s work, based on articles published early in his career and his testimony in Perry v. 21 Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).1

22

Thereafter, on October 31, 2012, the Coalition untimely filed an “Addition to Appendix,”

23 Dkt. 99, consisting of an article by Mark Regernus (which also was not offered in the form of

24 admissible evidence). Although the article indicates that it was available online since August 28,

25 2012, Dkt. 99, Coalition’s Appendix at 1459, the Coalition inexplicably neglected to include the

26 article in the appendix to the Coalition’s motion for summary judgment, which the Coalition filed

27 on September 10, 2012, 13 days after the article became available on line. Nor did the Coalition

28

1

As with all of the other materials submitted by the Coalition thus far, the substance of this

article was not even offered in the form of admissible evidence.

- 2 -
ER 47

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1 include the article in its appendix supporting its brief in opposition to plaintiffs’ motion for

2 summary judgment, which the Coalition filed on October 25, 2012, which was 58 days after the

3 article became available on line. Dkt. 95-1. Instead, 64 days after the article became available

4 online, and six days after summary judgment oppositions were due, the Coalition filed the

5 document without even seeking permission to do so untimely.

6

Accordingly, pursuant to the Court’s guidance at the September 10, 2012 hearing,

7 Plaintiffs respectfully request that the Court grant their motion for leave to file a reply brief and

8 supporting declarations, addressing only the new issues raised in the Coalition’s opposition brief

9 and this Addition to Appendix. Local Rule 7-2(e) normally authorizes the filing of a reply brief

10 in support of a motion for summary judgment within 14 days after a brief in opposition, and

11 Plaintiffs have timely filed this motion within 14 days after the Coalition filed its opposition.

12 Plaintiffs’ proposed Brief in Reply to the Coalition’s Opposition to Plaintiff’s Motion for

13 Summary Judgment is attached hereto as Exhibit A; the supporting declarations of Michael

14 Lamb, Ph.D. and Tara Borelli are attached hereto as Exhibits B and C, respectively; and a

15 proposed order is attached hereto as Exhibit D.

16 DATED: November 8, 2012

17 Respectfully submitted,

18 LAMBDA LEGAL DEFENSE AND

CARLA CHRISTOFFERSON (pro hac vice)

19 EDUCATION FUND, INC.

DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)

20 /s/ Tara L. Borelli JON W. DAVIDSON (pro hac vice)
21 TARA L. BORELLI (pro hac vice)

RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP 400 South Hope Street

PETER C. RENN (pro hac vice) 22 SHELBI DAY (pro hac vice)

Los Angeles, California 90071

23 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010

24 KELLY H. DOVE (Nevada Bar No. 10569)
25 MAREK P. BUTE (Nevada Bar No. 09989)

SNELL & WILMER LLP 26 3883 Howard Hughes Parkway, Suite 1100

27 Las Vegas, Nevada 89169

28 Attorneys for Plaintiffs

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ER 48

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1

CERTIFICATE OF SERVICE

2

I hereby certify that I will electronically file the foregoing document, and all exhibits,

3 with the Clerk of the Court for the United States District Court, District of Nevada by using the

4 CM/ECF system on November 8, 2012. All participants in the case are registered CM/ECF

5 users, and will be served by the CM/ECF system.

6

7

By: /s/ Tara Borelli

Tara Borelli

8

3325 Wilshire Boulevard, Suite 1300

Los Angeles, CA 90010 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 4 -
ER 49

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Exhibit A
ER 50

CasCea:s1e2-21:1726-6c8v-001507/81-8R/2C0J1-3PAL DIoDc:u8m8e2n8t013080-1DkFtEilnetdry1:12/0-85/12 PPaaggee: 124ooff6221(202 of 928)

1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

PLAINTIFFS’ BRIEF IN REPLY TO THE COALITION’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 51

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1

Plaintiffs respectfully submit this reply brief in response to two new arguments raised by

2 Defendant-Intervenor Coalition for the Protection of Marriage (the “Coalition”) in its opposition

3 to Plaintiffs’ motion for summary judgment, which were not previously raised in the Coalition’s

4 earlier briefs in this case: (1) that earlier work of Plaintiffs’ expert on child development,

5 Michael Lamb, Ph.D., purportedly contradicts the expert opinions Dr. Lamb has offered in this

6 case; and (2) that the authors upon which the Coalition chiefly relies are “at least as qualified in

7 their fields” as Dr. Lamb is. Both arguments are patently untrue.

8

First, the Coalition’s attack on Dr. Lamb is lacking in any basis whatsoever. The

9 Coalition relies on a piece written not by another child development expert, but instead by a

10 “legal analyst,” William Duncan. Dkt. 95-1, Coalition’s Appendix at 1332-36. Duncan makes

11 two claims about Dr. Lamb: first, that Dr. Lamb’s expert conclusions purportedly are

12 contradicted by Dr. Lamb’s early writings on fatherhood; and second, that Dr. Lamb contradicted

13 his own testimony during the Perry trial. The first assertion is misleading. Dr. Lamb explained

14 in detail during his Perry testimony that his early speculation about the role of fathers in child

15 development has been superseded by advances in research, which have proved the early

16 hypotheses incorrect. (Lamb Decl. ¶¶ 12-15.) With regard to the second assertion, the selectively

17 quoted portions of Dr. Lamb’s testimony that Duncan heralds as self-contradictory are either

18 deliberately taken out of context – with glaring omissions of Dr. Lamb’s explanations for his

19 answers – or are actually consistent with Dr. Lamb’s expert opinions in this case. (Lamb Decl.

20 ¶ 16.)

21

Second, the assertion that the two principal authors relied upon by the Coalition, Mark

22 Regnerus and Loren Marks, are “as qualified” as Dr. Lamb is so divorced from reality as to be

23 incapable of being given any credibility whatsoever. Dr. Lamb is a preeminent expert in child

24 development who has published more than 600 publications either in peer-reviewed professional

25 journals or in books published by academic presses, who has received the American

26 Psychological Association’s award for lifetime achievement in 2003, and whose expert testimony

27 has been admitted in at least 10 cases involving lesbian and gay parents over the last four years

28

- 2 -
ER 52

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1 alone. Pltfs’ Appendix, Dkt. 86-3 at 315, 317, 333.1

2

In contrast, Marks was initially designated as an expert by the Proposition 8 proponents in

3 Perry, but they withdrew him after the plaintiffs in that case filed a Daubert challenge

4 demonstrating his utter lack of qualifications to testify about child adjustment and same-sex

5 parents. Id. (See Declaration of Tara Borelli in Support of Plaintiffs’ Summary Judgment Reply 6 Brief (“Borelli Decl.”) Ex. 1.)2 Regnerus’s article, How different are the adult children of parents

7 who have same-sex relationships?, appears to be his first foray into the field of parenting by

8 same-sex couples. But Regnerus’s data and analysis are so faulty that the paper does not even

9 measure what it purports, and does not allow for any conclusions about the quality of lesbian and

10 gay parents. Regnerus himself even acknowledged that the vast majority of his respondents did

11 not come from planned families with lesbian or gay parents. Pltfs’ Appendix, Dkt. 86-3 at 326

12 n.5. As Dr. Lamb testified, the majority of respondents in Regnerus’s study described as having a

13 “gay father” or “lesbian mother” spent very little time living in households headed by same-sex

14 couples, and most were in families that went through divorces and transitions to single-parent or

15 step-family life, which are known correlates of poorer child outcomes. In contrast, for the

16 heterosexual parents in his study Regnerus excluded all who had gone through divorce, including

17 only those that remained intact throughout the respondents’ childhoods. Pltfs’ Appendix, Dkt.

18 86-3 at 325.

19

As soon as the Regnerus and Marks papers were released, experts in the field identified so

20 many deficiencies with them that the publishing journal ordered an internal audit. (Declaration of

21 Michael Lamb, Ph.D. Supporting Plaintiffs’ Summary Judgment Reply Brief (“Lamb Decl.”)

22 1

Dr. Lamb also has written or edited nearly 50 books in the field of developmental

23

psychology, development in infancy, mother-child relationships, father-child relationships, the role of the father, sibling relationships, the effects of nontraditional rearing circumstances, the

24

effects of daycare, child abuse, and forensic interview practices. Many of his books are used widely as texts in graduate courses. Pltfs’ Appendix, Dkt. 86-3 at 315.

25

2

Though the Coalition cites Marks as criticizing the research on child adjustment described

by Plaintiffs’ expert, Marks admitted in deposition in Perry that his “primary research interest” is

26

in “faith and families,” and that he does not “study the specific concept of child adjustment.” (Borelli Decl. Ex. 2 at 53:21-54:17.) He has “never conducted any original research on families

27

headed by lesbian or gay parents” or “published writings or articles in the press discuss[ing] children raised by lesbian or gay parents.” (Id. at 58:3-12.) He further admitted that he formed

28

his beliefs about “the ideal family structure” before doing any research in this area and, indeed, before he had even graduated from college. (Id. at 275:5-22.)

- 3 -
ER 53

CasCea:s1e2-21:1726-6c8v-001507/81-8R/2C0J1-3PAL DIoDc:u8m8e2n8t013080-1DkFtEilnetdry1:12/0-85/12 PPaaggee: 157ooff6221(205 of 928)

1 ¶ 5.) The internal audit concluded that the journal should not have published either paper.

2 (Lamb Decl. ¶¶ 5-8, Ex. 1.)

3

In the same edition of the journal that published the audit, Regnerus wrote a response to

4 his critics, acknowledging that the failings identified in his data and analysis were in fact true.

5 (Lamb Decl. ¶ 9-11 (Regnerus’s response acknowledged that most of the children in his so called

6 “lesbian mother” and “gay father” groups spent very little time living in households headed by

7 same-sex couples; that he had not controlled for differences between groups related to transitions

8 involving divorce or single parenting, which are known correlates of poorer outcomes; and that

9 only two respondents out of his entire sample lived with same-sex parents throughout their

10 childhood).)

11

Indeed, it is telling that the Coalition has chosen to rely upon Regnerus and Marks’s

12 articles, rather than to submit a scrap of evidence in admissible form, such as the sworn testimony 13 of those individuals.3 The purpose of the extended 45-day period afforded by this Court for

14 summary judgment oppositions was to facilitate the opportunity to depose witnesses relied upon

15 in the parties’ motions, Tr. of Mot. Hearing, August 10, 2012, Dkt. 69 at 11:5-11, and yet the

16 Coalition has opted to circumvent that process. Instead, it has tossed bald assertions about their

17 authors’ qualifications into its opposition brief, preventing Plaintiffs from testing these

18 individuals’ qualifications and opinions through deposition. This appears to be a deliberate

19 attempt to shield Marks and Regnerus from the adversarial process of discovery, where their

20 arguments have fared poorly in the past. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 944-

21 53 (N.D. Cal. 2010) (finding testimony offered by proponents of Proposition 8 on similar topics

22 to be unreliable). Upon closer examination of Regnerus and Marks, the Coalition’s motivation is

23 understandable.

24

Aside from the new issues described above, the Coalition raises no new substantive

25 arguments to support its position, restating the same claims that were answered by Plaintiffs’

26 motion for summary judgment, Dkt. 86, and Plaintiffs’ opposition to Defendants’ motions for

27 3

In fact, the Coalition claimed in its motion to intervene that the “evidence – the plaintiffs’

28

and the Coalition’s – must consist of ... expert testimony that satisfies the requirements of Rule 702, FRE.” Dkt. 42 at 3.

- 4 -
ER 54

CasCea:s1e2-21:1726-6c8v-001507/81-8R/2C0J1-3PAL DIoDc:u8m8e2n8t013080-1DkFtEilnetdry1:12/0-85/12 PPaaggee: 168ooff6221(206 of 928)

1 summary judgment, Dkt. 98, which briefing Plaintiffs incorporate herein. For all of those

2 reasons, Plaintiffs respectfully request that the Court deny Defendants’ motions for summary

3 judgment, and enter judgment in Plaintiffs’ favor.

4

5 DATED: November 8, 2012

6 Respectfully submitted,

7 LAMBDA LEGAL DEFENSE AND

CARLA CHRISTOFFERSON (pro hac vice)

8 EDUCATION FUND, INC.

DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)

9 /s/ Tara L. Borelli JON W. DAVIDSON (pro hac vice)
10 TARA L. BORELLI (pro hac vice)

RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP 400 South Hope Street

PETER C. RENN (pro hac vice) 11 SHELBI DAY (pro hac vice)

Los Angeles, California 90071

12 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010

13 KELLY H. DOVE (Nevada Bar No. 10569)
14 MAREK P. BUTE (Nevada Bar No. 09989)

SNELL & WILMER LLP 15 3883 Howard Hughes Parkway, Suite 1100

16 Las Vegas, Nevada 89169

17 Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28

- 5 -
ER 55

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Exhibit B
ER 56

CaCsea:s1e22-1:1726-6c8v-001507/81-8R/2C0J1-P3AL DIoDc:u8m8e2n8t013080-2 DkFtiElendtr1y1: /2008-/512 PPaaggee: 220ofo2f 9221(208 of 928)

1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF MICHAEL LAMB, PH.D. IN SUPPORT OF PLAINTIFFS’ SUMMARY JUDGMENT REPLY BRIEF

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

- 1 -
ER 57

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1

I, Michael Lamb, Ph.D., hereby declare and state as follows:

2

1. I am a Professor of Psychology in the Department of Psychology at the University

3 of Cambridge in the United Kingdom. I have actual knowledge of the matters stated in this

4 declaration and could and would so testify if called as a witness.

5

2. On June 24, 2011, I submitted my expert declaration in this matter, which set forth

6 my relevant background and experience (my “Original Declaration,” Dkt. 86-3, Pltfs’ Appendix

7 at 314-454), and attached my curriculum vitae and a list of my publications from the last 10 years

8 as Exhibits A and B respectively. On October 25, 2012 I submitted a supplemental declaration in

9 support of Plaintiffs’ opposition to Defendants’ motions for summary judgment (my

10 “Supplemental Declaration,” Dkt. 98-1). My Original Declaration set forth the principal opinion

11 that I am offering in this case: that children and adolescents raised by same-sex parents are as

12 likely to be well-adjusted as children raised by heterosexual parents, including those children’s

13 “biological” parents. My Supplemental Declaration responded to sources cited by the Coalition

14 for the Protection of Marriage (the “Coalition”) in support of their arguments that children are

15 best adjusted when raised by married mothers and fathers who are their biological parents, that

16 children conceived through assisted reproductive technology experience poorer outcomes, and

17 that recent papers call into question the conclusion that the children of lesbians and gay men are

18 as likely to be well-adjusted as children raised by married heterosexual couples. As I explained in

19 my Supplemental Declaration, neither the sources cited by the Coalition nor the authoritative

20 body of research on this subject support their arguments.

21

3. I have read the relevant portions of the “Coalition’s Response Brief Re: Plaintiffs’

22 Motion For Summary Judgment.” Dkt. 95 at 14-15. On pages 14 through 15, the Coalition raises

23 two arguments in an attempt to refute my prior conclusions, but neither is credible.

24

a) First, the Coalition claims that the articles by Loren Marks and Mark

25 Regnerus discussed in my Original Declaration should be credited because they appeared in peer-

26 reviewed journals. See Dkt. 95 at 14 (citing my discussion of Loren Marks and Mark Regnerus at

27

28

- 2 -
ER 58

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1 Dkt. 86-3 at 67-71).1 But as explained further below, both pieces were subsequently discredited

2 by an internal audit conducted by the journal that published them, and, more importantly, neither

3 piece actually supports the conclusions for which it has been cited. A response by Mark

4 Regnerus to his critics, discussed below, actually acknowledges that his study did not even

5 “measure” parents’ sexual orientation, and concedes the other problems that I discussed in my

6 Original Declaration. Dkt. 99, Coalition’s Appendix at 1460.

7

b) Second, the Coalition wrongly claims that my conclusions in this case are

8 contradicted by my own work, citing some of my early speculation in the 1970s about fatherhood.

9 Dkt. 95 at 14-15. In this regard, the Coalition relies on a piece from an advocacy organization,

10 written by a “legal analyst” (not a child development expert), discussing my trial testimony in

11 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010). This piece disingenuously

12 ignores my testimony at that trial explaining how that early speculation had been refuted by

13 decades of empirical research by respected experts in the field. It is this authoritative body of

14 research that I summarized in my Perry testimony, as well as in my Original Declaration. Dkt.

15 86-3, Pltfs’ Appendix at 318-330.

16 A. 17 18

Recent pieces by Marks and Regnerus do not support conclusions about the quality of lesbian and gay parents, and have been discredited in an audit by the journal that published them.
4. I have previously testified why the articles believed by the Coalition to raise

19 questions about the suitability of same-sex parents do not actually measure or accomplish what

20 they claim to do. See Dkt. 86-3, Pltfs’ Appendix at 324-26 (explaining that Regnerus’s piece,

21 How different are the adult children of parents who have same-sex relationships? Findings from

22 the New Family Structures Study, did not actually assess parental sexual orientation, or children

23 raised by intact families with same-sex parents); Dkt. 98-1 at 6-7 (explaining that Marks’s piece,

24 Same-Sex Parenting and Children’s Outcomes: A Closer Examination of the American

25 Psychological Association’s Brief on Lesbian and Gay Parenting, is a materially incomplete

26 review of the literature that mischaracterizes the extensive research about same-sex parents

27 1 The Coalition’s reference to my Original Declaration does not use the correct pagination for that

28

document, but nonetheless clearly refers to my discussion of the articles by Loren Marks and Mark Regnerus.

- 3 -
ER 59

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1 published before 2005, and ignores entirely the many informative studies published since then);

2 Dkt. 86-3, Pltfs’ Appendix at 327 (same).

3

5. Both Regnerus’s and Marks’s pieces were subsequently discredited by an internal

4 audit conducted by the journal that published them. See Darren E. Sherkat, The Editorial Process

5 and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific

6 Vigilance, Social Science Research 41 (2012) 1346–1349. A true and correct copy of this audit is

7 attached hereto as Exhibit 1.

8

6. Speaking about both the Regnerus and Marks pieces, the auditor noted that “[b]oth

9 papers have serious flaws and distortions” and “neither paper should have been published.” Id. at

10 1347, 1349.

11

7. With respect to the Regnerus piece, the auditor observed:

12

Reviewers [of Regnerus’s article] uniformly downplayed or ignored the fact that the study

did not examine children of identifiably gay and lesbian parents, and none of the

13

reviewers noticed that the data were inappropriate for a top-tier social scientific journal,

particularly given the marginal population to which these estimates pertain. Throughout

14

the paper, Regnerus points to the social and psychological deficits of children of gays and

lesbians; yet, the study found only a handful of children of gays or lesbians. This is not a

15

small semantic issue, since it cuts to the heart of what Regnerus has argued in his paper

and in the media. 16

8. With respect to the Marks piece, the auditor wrote:

17

I was very disappointed to see a paper like the Marks paper published in [Social Science

18

Review]. … [I]t appears to conduct a lowbrow meta-analysis of studies of the effect of

same sex parents on children, [and] no … systematic meta-analysis [was] conducted. It is

19

an argumentative review paper trying to make a case against a particular conclusion in an

[American Psychological Association] brief. Reviewers should have known that this was

20

inappropriate for a journal that publishes original quantitative research.

21

9. A subsequent piece by Mark Regnerus entitled Parental same-sex relationships,

22 family instability, and subsequent life outcomes for adult children: Answering critics of the New

23 Family Structures Study with additional analyses, which responds to the widespread critiques of

24 the deficiencies in his article, actually recognizes the problems I identified with his study. I

25 observed in my Original Declaration that most of the children in the so called “lesbian mother”

26 and “gay father” groups spent very little time living in households headed by same-sex couples.

27 Dkt. 86-3, Pltfs’ Appendix at 325. Regnerus recognizes that this is true. He reports that, of the

28 85 respondents who reported mothers who had same-sex relationships, the vast majority – 51 of

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1 them – lived with the same-sex couple for two years or less. Dkt. 99, Coalition’s Appendix at

2 1461. Only six lived with a same-sex couple for 10 years. Id. at 1462. Only two respondents

3 reported living with a same-sex couple from the beginning of their lives to the age of 18. Id.

4 Most of the “lesbian mother” and “gay father” participants were the product of failed

5 heterosexual marriages whose parents had same-sex relationships at some point in time. This

6 study does not tell us anything about children who grow up in families with same-sex parents.

7

10. I also testified that most of Regnerus’ so called “gay father” and “lesbian mother”

8 participants were in families that went through divorces and transitions to single-parent or step-

9 family life, which are known correlates of poorer child outcomes, while Regnerus excluded from

10 his heterosexual comparison group all of the families that went through divorce and family

11 transitions. Dkt. 86-3, Pltfs’ Appendix at 325. This, too, Regnerus acknowledges. Dkt. 99,

12 Coalition’s Appendix at 1461 (acknowledging that he did not control for these differences

13 between the two groups, and that “in an ideal data world, that makes sense”); id. at 1463 (unlike

14 in the intact heterosexual families category, Regnerus included in his lesbian mothers and gay

15 fathers categories parents who were single, another known correlate of adjustment difficulties).

16 The “alternative analyses” reported by Regnerus in his new article do not address this

17 fundamental problem: He compared exclusively intact heterosexual parent families with mostly

18 non-intact “gay father” and “lesbian mother” families and, thus, could legitimately only conclude

19 from this study something that we have long known – that family break-up is associated with

20 poorer child outcomes.

21

11. Nothing in Regnerus’s new piece alters my original conclusion that his study did

22 not actually measure outcomes for children raised by same-sex parents; to the contrary, Regnerus

23 has confirmed my concerns.

24 B. 25 26

Early hypotheses about fathers’ roles in child development have been proven incorrect by an extensive body of research; this research demonstrates beyond dispute that the gender of the parents has no bearing on children’s adjustment.
12. When I began my research in the early 1970s, as I testified in Perry, many

27 believed that children needed to be raised in heterosexual families that include fathers in order to

28 be well-adjusted, and I initially assumed that this hypothesis was likely to be true, although it had

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1 not been established by empirical research. As explained further below, a robust body of

2 evidence-based research has since proven that hypothesis incorrect, and scientists in the field

3 have long since discarded the idea that parents’ gender affects children’s adjustment.

4

13. My initial research focused on the attachments that young babies form to their

5 mothers and fathers. In that early research, I explored differences in the ways in which mothers

6 and fathers behaved and examined whether these differences were in fact important to children’s

7 adjustment, and whether they showed that children needed to be raised by both male and female

8 parents. The results of both my research and that of other child development experts has

9 confirmed the conclusion that I discussed in my Original Declaration as well as in numerous

10 articles published by a variety of scholars over at least two decades: what makes parents effective

11 is the same regardless of their gender. Children do not need to have masculine-behaving fathers

12 or feminine-behaving mothers to be well-adjusted.

13

14. Instead, as I previously testified, three categories of factors account for the

14 adjustment of children and adolescents: the quality of the parent-child relationship, the quality of

15 the relationship between the parents, and the adequacy of resources to support the family

16 (sometimes referred to herein as “family process variables”). Dkt. 86-3, Pltfs’ Appendix at 319.

17 Research in the field of child development began to focus on and coalesce around this emphasis

18 on family process variables in the early to mid-1980s, and by the early 1990s it was the

19 overwhelming consensus in the field. The literature and evidence are so extensive that experts in

20 the field consider this conclusion to be established beyond dispute.

21

15. I have reviewed a piece submitted in this case by the Coalition, which was written

22 by legal analyst William Duncan. Dkt. 95-1, Coalition’s Appendix at 1332-36 (entitled

23 Misplaced Reliance on Social Science Evidence in the Proposition 8 Case). This piece discusses

24 the trial testimony I gave in the Proposition 8 case, but profoundly misrepresents what I said. For

25 example, the piece quotes from some of my early 1970s work described above, in which I was

26 testing that era’s speculation regarding the way fathers might affect children’s development. Id.

27 at 1333-35. Duncan suggests in his piece that the difference between these early beliefs and the

28 current scientific consensus I described can only be explained by ideological bias. Id. at 1334-35.

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1 This allegation is untrue. Although Duncan quotes at some length from my testimony in Perry,

2 he does so selectively, and does not acknowledge that I answered at that trial precisely the

3 question he raises, explaining, as I have above, that research over the past three decades has

4 proved the early hypotheses about fatherhood incorrect. See Exhibit 2, attaching true and correct

5 copies of relevant excerpts from the Perry Transcript, at 1014:8 – 1015:5.

6

16. Duncan’s brief attributes a number of specific quotes about gender-differentiated

7 parenting and fathers to me, but all of them misstate my testimony:

8

a) Many of Duncan’s statements selectively quote me and deliberately omit

9 my explanation of that testimony. For example:

10

i) Duncan quotes from one of my early articles, written in 1975, in

11 which I stated, “It is disturbing that there appears to have been a devaluation of the father's role in

12 western society such that many children may suffer affective paternal deprivation.” Dkt. 95-1,

13 Coalition’s Appendix at 1333. But as I explained in my testimony, I wrote that as a graduate

14 student at the beginning of my career, when there was a singular focus on the relationships

15 between children and their heterosexual mothers in the field, and complete inattention to the

16 possibility that children might have other significant relationships. Exhibit 2, Perry Transcript at

17 1072: 2-10. My article was intended to draw attention to the fact that, for children who grew up

18 with two heterosexual parents, it was important to study the role of both of their parents, not just

19 their mothers. Id. at 1072: 10-13. I subsequently came to understand that an even broader

20 examination of the significant relationships in children’s lives, including those with siblings and

21 grandparents, is needed if we are to understand fully the factors that affect children’s

22 development. Id. at 1072:14 – 1073:2. My belief that we need to broaden our understanding of

23 the factors shaping children’s development has been a consistent theme from the beginning of my

24 scholarly career.

25

ii) Duncan quotes a statement from an article I co-authored suggesting

26 that boys “growing up without fathers seem especially prone to exhibit problems in the areas of

27 sex role and gender identity development.” Dkt. 95-1, Coalition’s Appendix at 1333. When I

28 was asked about this statement during the Perry trial, I explained that the statement was actually

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1 describing another author’s work and that this hypothesis was not supported by subsequent

2 research, which does not show differences in sex role and gender identity development in children

3 raised in families without fathers. Exhibit 2, Perry Transcript at 1074: 11-16.

4

iii) Duncan quotes a statement from another early article I wrote,

5 claiming that I said the data “suggests that the differences between maternal and paternal

6 behavior are more strongly related to either the parents’ biological gender or sex roles, than to

7 either of their degree of involvement in infant care or their attitudes regarding the desirability of

8 paternal involvement in infant care.” Dkt. 95-1, Coalition’s Appendix at 1333-34. But when I

9 was asked about this during the Perry trial, I explained that this was a description I had written

10 about another researcher’s “study that was conducted … in the late 1970s.” I also explained “that

11 is a finding that has not held up in subsequent research.” Exhibit 2, Perry Transcript at 1069: 17-

12 24; see also 1068: 15-21.

13

iv) Duncan takes out of context the questions I was asked suggesting

14 that boys without resident fathers were prone to perform poorly at school and to be more poorly

15 adjusted psychologically. Dkt. 95-1, Coalition’s Appendix at 1334. Exhibit 2, Perry Transcript

16 at 1074: 17-24. As I explained on the stand, it is not the absence of a male parent that accounts

17 for these outcomes; instead, as I testified in Perry, these outcomes are explained by the family

18 process variables I also discussed above, e.g., the quality of parent-child relationships and

19 exposure to parental conflict. Exhibit 2, Perry Transcript at 1075: 4-11.

20

v) According to Duncan, I stated that men and women are not

21 “completely interchangeable with respect to skills and abilities,” but he fails to acknowledge that

22 the quote was expressly premised on several additional paragraphs of testimony explaining what I

23 meant. Dkt. 95-1, Coalition’s Appendix at 1335. I explained at trial that I had given that

24 testimony in my deposition, during which “I continued for several paragraphs explaining what I

25 meant,” which was that the capacity to be a good parent is not determined by the parent’s gender;

26 rather, the quality of the parent-child relationship is generally shaped by the family process

27 variables I have described above. Perry Transcript at 1065: 6-7.

28

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Exhibit 1
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Social Science Research 41 (2012) 1346–1349
Contents lists available at SciVerse ScienceDirect
Social Science Research
journal homepage: www.elsevier.com/locate/ssresearch
The Editorial Process and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientiﬁc Vigilance q
Darren E. Sherkat
Department of Sociology, Southern Illinois University, Carbondale IL 62901 USA
The publication of Mark Regnerus’ research paper claiming to show that gays and especially lesbians have poor parenting outcomes has unleashed a ﬁrestorm of controversy among social scientists who study family and sexuality—fanned by the author’s cultivation of popular media reporting on the study. Less attention has been paid to the review paper by Loren Marks, arguing against the American Psychological Association’s stance that same-sex parenting is not dysfunctional, but the process by which Social Science Research published that paper is also in question. At the request of the editor, Professor James D. Wright (and at the suggestion of Dr. David Brady of Duke University), I have independently reviewed the submission and review process for both papers, and I report on that process from a perspective of editorial realism. I do this with an eye towards explaining how available and customary procedures can lead to substandard outcomes. I will leave the more detailed critiques of Regnerus’ and Marks’ studies to other scholars.
The publication of the Regnerus paper raised red ﬂags for many scholars, including myself, and the timeline of the data collection, article submission, and acceptance led many to assume that Social Science Research colluded with the author and violated standard editorial policy as well as ethical standards. Indeed, the timeline of Regnerus’ data collection effort and paper submission is highly unusual—Regnerus wrote and submitted the ﬁrst draft of the paper before the data collection had been completed. Regnerus did not indicate that data collection was ongoing in the ﬁrst draft of his paper. The paper was reviewed, revised, and accepted in only 6 weeks. Normally, an editor would be praised by the scientiﬁc community for accomplishing such a miraculous turnaround time for manuscript reviews, but in this case many questioned Wright’s actions and implied a nefarious motive. Wright provided me with all of the reviews and reviewer information, along with the timeline of correspondence, and I will summarize the review process and how I see it in terms of the normal realities of editing a major journal like Social Science Research.
This incident provides us with an opportunity to reﬂect on the peer review process, and how we critically evaluate research. There are new political realities which social scientists, perhaps especially sociologists, have not previously had to engage. And there are also constant issues of conﬂicts of interest that need to be better addressed in the editorial process—and here the onus lies as much on reviewers as on journal editors to admit when one is too close to an author or an issue to make a valid judgment about the worth of the research.
1. Editing is hard, and peer review is a crap shoot
Most scholars give little reﬂection to what it takes to edit a scholarly journal, and very few will ever take up the task. Social Science Research has received a record-breaking number of submissions each year for the last 3 years, and is on track to process more than 350 new submissions this year (plus a hundred or so revisions of papers originally submitted in previous years). Wright processes these manuscripts with one assistant and a student worker. For each manuscript at least three reviewers have to be found to provide reviews in a timely fashion, and revised manuscripts and conﬂicting reviews often require soliciting additional reviewers. Social Science Research has one of the best turnaround times among the top-tier in the social sciences. Social scientists are becoming increasingly uncooperative as reviewers in an era of increasing scholarly
q Comments and information from Neal Caren, Phillip Cohen, Lisa Keister, Shamus Khan, Debra Umberson, and Rhys Williams were helpful. Thanks also to James D. Wright for providing a thorough accounting of the editorial history of the two articles.
E-mail address: Sherkat@SIU.edu
0049-089X/$ - see front matter Ó 2012 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.ssresearch.2012.08.007
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output, and ﬁnding three willing reviewers usually takes six or more solicitations. Who cooperates and when is an issue of concern and structural features like editorial boards help but do not guarantee that reviews are produced. The result is that the review process may not always be as thorough or as objective as one would hope.
Like many journals, Social Science Research relies heavily on its editorial board for manuscript reviews, and members of the board doing research on popular topics are often called upon to review manuscripts. Wright also consults board members regarding potential reviewers. Given the frantic pace of scholarly output and paper submissions, imperfections can arise from several quarters. Both of the articles in question ﬁt squarely in the area of family and sexuality, and having two papers on a similar topic in the review process at the same time crowds out potential cooperative reviewers. There has been a marked increase in research on sexuality and the family, and because of this many scholars are up to their ears with manuscript reviews. As is normal, Wright turned ﬁrst to two editorial board members who work on topics related to the papers— and one of these board members reviewed both papers. Wright attempted to get ﬁve reviews for the Regnerus paper and he secured three reviewers, while all four scholars who were asked agreed to review the Marks paper (which is unusual). Two of the reviewers indicated that they had a potential conﬂict of interest related to consulting on the Regnerus paper but both averred that this consulting relationship would not preclude an objective, critical assessment; another reviewer reported that he had read a previous draft of the Marks paper (the reviewer claimed that he did not otherwise know Marks and had never met him in person). All of the reviewers provided quick feedback, and all of the reviews were positive. The editor required revisions in both articles as a result of the reviews, and the revisions were completed quickly and successfully with the guidance of the reviewers and the editor.
Who is asked and who cooperates to do a review is a somewhat random feature of academic publication. In a generalinterest journal like Social Science Research, the editor cannot possibly know of the conﬂicts of interest or particularities of controversies in subﬁelds far beyond his own. Social Science Research is a quantitative journal, and the editorial board and reviewers reﬂect that orientation. On the issue of sexuality and family, most studies have been smaller scale and qualitative; and scholars doing this sort of research would be unlikely to review for a quantitative journal like Social Science Research. Quantitative family scholars tend to be conservative, and three of the six reviewers for these two articles are bone ﬁde conservatives—scholars who are on public record opposing marriage rights for LGBT persons. Wright indicated to me that he knew that one of the three conservative scholars held these commitments, but he did not know of the religious/political activism of the other two. This puts Wright even with me—I knew that one of the three was a religious and political conservative, but I had to search for the public views of the other two (and I did not know of the conservatism of the scholar Wright was familiar with). Five of the reviewers are very regular, reliable, SSR reviewers, and all six were notable scholars. Indeed, the three scholars who are not publicly conservative can accurately be described as social science superstars. I should also note that none of the reviewers were female, and all but one was over 50 years old.
The reviewers are not without some connection to Regnerus. Two admitted to being paid consultants on the Regnerus study, and it would have been ideal to solicit an additional review. However, at that point, Wright was sitting on three completed reviews by distinguished scholars and Editorial Board members—all of them advocating publication. I do not know which of the six reviewers reviewed which of the two manuscripts; however, two of the six reviewers are former coauthors with Regnerus (though neither has written with him in a decade). In any case, with two exceptions the reviewers certainly did not mention their conﬂicts of interest, and the editor could not have known. Can you make an unbiased decision about research you have consulted on a project? When you are former colleagues? When the paper is authored by a former coauthor? When you have been funded by the same foundations? The answer is ‘‘maybe not.’’ More people should turn down reviews because they have conﬂicts of interest. Both Regnerus and Marks got a lucky roll of the dice—in large part because the SSR die are loaded in favor of conservatives in the area of family, and because scholars who should have known better failed to recuse themselves from the review process. It can be argued that Wright should have been more aggressive in asking about such conﬂicts but this is probably unrealistic given the large number of papers SSR processes.

2. Glad-handing reviews and the editor’s echo chamber
I see little serious engagement of the papers in any of the reviews. Both papers have serious ﬂaws and distortions that were not simply ignored, but lauded in the reviews. Given that the reviewers were mostly comfortable conservatives, it is not surprising that the reviews were very positive, and contained minimal critique of the data, measures, or methods used in the studies. This lack of critical reﬂection on the part of reviewers could be because of ideological blinders, but it is also certainly related to reviewer fatigue—if you generally like a paper and have four more on your desk to review, you may not bother pointing out what you think are minor ﬂaws (even when those ﬂaws are not minor).
I was very disappointed to see a paper like the Marks paper published in SSR. While it appears to conduct a lowbrow meta-analysis of studies of the effect of same sex parents on children, no original data were collected or analyzed, nor was a systematic meta-analysis conducted. It is an argumentative review paper trying to make a case against a particular conclusion in an APA brief. Reviewers should have known that this was inappropriate for a journal that publishes original quantitative research. Indeed, the reviewers seemed so enamored with the basic argument in the Marks paper that they failed to notice that it does not ﬁt the aims of the journal. Three reviewers voted ‘‘accept but suggest revisions’’, and one reviewer suggested ‘‘revise and resubmit’’. The manuscript was revised, resubmitted, and reviewers agreed it should be published.

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The Regnerus paper received even more favorable reviews. Reviewers uniformly downplayed or ignored the fact that the study did not examine children of identiﬁably gay and lesbian parents, and none of the reviewers noticed that the data were inappropriate for a top-tier social scientiﬁc journal, particularly given the marginal population to which these estimates pertain. Throughout the paper, Regnerus points to the social and psychological deﬁcits of children of gays and lesbians; yet, the study found only a handful of children of gays or lesbians. This is not a small semantic issue, since it cuts to the heart of what Regnerus has argued in his paper and in the media. Regnerus’ peculiar deﬁnition of ‘‘gay’’ and ‘‘lesbian’’ also guided his selection of respondents. Regnerus’ reviewers are effusively positive and point to ways to further bolster his argument and justify his use of a very bad measure on ﬂawed data. What was the vote count? Two ‘‘accept with suggested revisions’’, one ‘‘accept with revisions’’. The manuscript was revised, and reviewers thought it worthy of publication.
If I were in Wright’s shoes, I may well have made the same decisions. I might have desk-rejected the Marks paper, but I may not have noticed that the research was not real (it does appear to have tables). I might have read the Regnerus paper and realized it was substandard, but how many of those 350 manuscripts a year are you going to read with full reviewer goggles? And, it is unfair to expect Wright to hear the warning sirens when none were sounded by the reviewers. Of course, I also might also have noticed the political bent of the two papers and made sure that the reviewers were more diverse in their perspectives. One thing that was sounded by all the reviewers was that these papers will stimulate enormous interest. This is something that has helped bolster research on sexuality in the last few years (left, right, and center), and it is well known in social scientiﬁc publishing circles that sexuality is the hot-button download ticket. Indeed, last year the top two downloaded papers in Social Science Research were on homosexuality and written from a pro-civil rights perspective; and I was a coauthor of one of them (Sherkat et al., 2011). Our paper was accepted by Wright over the objections of two conservative reviewers—out of three reviews, two were certainly voting ‘‘reject’’. The accusation that Wright was somehow part of a conservative conspiracy to undermine civil rights for LGBT persons is ludicrous, and I know this from his prior actions.

3. Data quality, political interests, and scientiﬁc research
The reviewers and the commentaries on the articles uniformly failed to attend to a key problem with the Regnerus study—it estimates population parameters based on a sample from a panel maintained on-line by a research ﬁrm. The Regnerus data were ﬁnanced by two extremely conservative foundations (the Bradley Foundation and the Witherspoon Institute), who contributed $795,000 to pay for this research (according to Regnerus’ vita). Notably, these conservative institutions are not well known—and the editor was unaware of the political bent of these foundations. There should be reﬂection about a conservative scholar garnering a very large grant from exceptionally conservative foundations to make incendiary arguments about the worthiness of LGBT parents—and putting this out in time to politicize it before the 2012 United States Presidential election.
The data were derived from a panel survey constructed from a national probability sample of households and also from a random digit dialing survey (the percentage of panelists recruited using each method is unclear). Panel members were recruited using monetary incentives and free internet and computer hardware, and panel members are expected to complete 2–4 surveys per month. There is no indication from Regnerus on the percentage of randomly targeted individuals who agreed to participate in the panel, or on the initial response rate of the RDD survey. Given the standards that prevail, it is likely that the recruitment rate is extremely low for both the RDD and ‘‘address based’’ sampling. I am unclear on the basis for the national representativeness of the study, particularly given the skewed distribution on gender, religiosity, and other measures. And, given that only 1.7% of respondents were (mis)classiﬁed as children of ‘‘gays’’ or ‘‘lesbians’’, these data are certainly not up to the task of adequately informing our understanding of same sex parenting. Regnerus’ web page shows that the panel has suffered 34% attrition (what are called ‘‘withdrawn panelists’’), and only 61.6% of the current panel responded to the Regnerus survey. Regnerus uses withdrawn panelists (only 21.6% of whom responded) to sample people who claim that a parent had a ‘‘romantic relationship’’ with someone of the same sex, but withdrawn panelists are not used for the sample of respondents with biological, intact, ‘‘heterosexual’’ parents. Given that withdrawn respondents were likely withdrawn because of concerns about their reliability as members of the data panel—it is inappropriate to have 11% of the ﬁctive children of ‘‘gays and lesbians’’ recruited from these withdrawn panelists.
Predictably, there are several red ﬂags in these data. The ‘‘nationally representative’’ panel is 32.7% male and 67.3% female. Respondents who claimed that their mother had a romantic relationship with another woman were disproportionately minority: 45% were white; 26% African American; 17% Hispanic; and, 12% other. The Regnerus codebook also reveals numerous unlikely responses, for example: 26 respondents had vaginal sex before the age of 8–10 of them at age 0; 20 male respondents have had sex with more than 100 women, while 16 female respondents have had sex with more than 100 men; Two respondents were pressured into have sex with their parent/adult caregiver for the ﬁrst time after the age of 30. Ten respondents have been pregnant a dozen or more times; and, 15 respondents had sex more than 30 times in the last 2 weeks. In the rush to complete this paper before the data were even fully collected, data cleaning was apparently not something in the research agenda. Yet, none of these problems were transparent to either the reviewers or the editor, and would only be revealed by a careful analysis of additional materials from Regnerus’ website.
Data quality has declined over the last 30 years, and much of the social scientiﬁc response to this decrease in quality has been resignation and a revision of scientiﬁc standards. The fact that similar data have been used in other peer-reviewed studies should not be used to justify Regnerus’ use of marginal data to study an important and contentious issue. Nobody should

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expect to publish a paper in a journal of the tier of Social Science Research on crucial questions using data collected in this manner. Indeed, the ‘‘gold standard’’ of research on family outcomes would require a randomly drawn sample of parents and children followed longitudinally and interviewed by a human. Commenting on the speciﬁc parameter estimates produced by such a non-scientiﬁc study merely privileges this ‘‘research’’ and enables it to inform public debate on consequential issues regarding sexuality and civil rights. The ‘‘debate’’ begins with a study with a questionable sample and inappropriate measures commissioned by an activist–scholar with funding from conservative foundations; but science is not a debate. It is notable that the day after publication of the Regnerus study it was cited in an amicus curiae brief by a conservative Christian political organization to justify denying marriage rights to same sex couples (http://www.ca9.uscourts.gov/datastore/general/2012/06/11/12-15388_Amicus_brief_American_College.pdf). Thankfully, other scholars and scholarly associations (including the American Psychological Association) have ﬁled amicus briefs countering the claims made in Regnerus’ severely ﬂawed study and by the anti-LGBT activists who support it (http://www.ca9.uscourts.gov/datastore/general/2012/ 07/10/12-15388_Amicus_Brief_Psychological.pdf).

4. The numbers game and scientiﬁc priorities
My review of the editorial processing of the Regnerus and Marks papers revealed that there were no gross violations of editorial procedures—the papers were peer reviewed, and the ‘‘peers’’ for papers on this topic were similar to what you would expect at Social Science Research. Obviously, the reviewers did not do a good job—because of both ideology and inattention—but the clear signal to the editor was ‘‘publish these papers’’. Still, once they were accepted there was an unseemly rush to publication (at least for the Regnerus paper), and that was justiﬁed based on the attention that these studies would generate. The published responses were milquetoast critiques by scholars with ties to Regnerus and/or the Witherspoon Institute, and Elsevier assisted with the politicization by helping to publicize the study and by placing these papers in front of the pay wall.
Because of the race to get these into print—certainly to boost the number of hits on Social Science Research’s meter— Wright picked people he knew would write something in a timely fashion. It is easy to produce a quick response when you are a paid consultant and are already familiar with the project. All three of the respondents to these papers have ties to the Witherspoon Institute: Professor Osborne is a ‘‘key collaborator’’ on the Regnerus study, Professor Amato was a consultant, and Professor Eggebeen is a signatory of a Witherspoon declaration that limits marriage to heterosexual couples (‘‘Marriage and the Public Good: Ten Principles’’ [http://www.winst.org/family_marriage_and_democracy/WI_Marriage.pdf]. Notably, unbeknownst to the editor, Eggebeen has also been a vocal opponent of same sex marriage who testiﬁed before the Hawaii Supreme Court. Wright did try to get Professors Charlotte Patterson and Michael Rosenfeld to be respondents, but he could not secure their cooperation. It seems possible that if these papers were held up for a more normal ‘‘backlog’’ of publication several distinguished and critical reviewers would have happily responded.
Controversy over sexuality sells and in only a week after publication these papers have already skyrocketed to the most downloaded papers published in Social Science Research. But neither paper should have been published, in my opinion. Undoubtedly, any researcher doing work on same-sex parenting will now have to address the Regnerus paper, and these citations will inﬂate the all-important ‘‘impact factor’’ of the journal. It is easy to get caught up in the empirical measures of journal success, and I believe this overcame Wright in driving his decision to rush these into print. The fetishism of the journal impact factors comes from the top down, and all major publishers prod editors about the current state of their impact factor. Elsevier is particularly attentive to this and frequently inquires about what Wright is doing to improve the already admirable impact factor of Social Science Research. As social scientists, popularity should not be the end we seek, and rigorous independent evaluation of these manuscripts would have made Social Science Research a less popular but better journal.
There are a few things that might help prevent papers like these from falling through the peer review process at Social Science Research. First, the Editorial Board needs expansion and diversiﬁcation. Given the number of manuscripts being processed, the Board is too small, and perhaps a bit too old, straight, white, and male. Second, Social Science Research should begin the review process with a series of prompts about the author and the study (SSR is a single blind journal, so reviewers know who wrote the paper) to ascertain whether reviewers may have a conﬂict of interest. Third, the comments for the author/editor form should require that reviewers directly assess the quality of the data, measures, and analysis relative to the standards expected in a substantive area. This is especially important since reviewers may not recall that Social Science Research only publishes original research (not literature reviews, essays, or theoretical papers) and is a top-tier quantitative journal where data, measures, and analytic methods should be of highest quality.

Reference
Sherkat, D.E., Melissa, P.-W., Gregory, M., Kylan de Vries, 2011. Religion, politics, and support for same-sex marriage in the United States, 1988–2008. Social Science Research. 40, 167–180.

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Exhibit 2
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Volume 5

Pages 991 - 1255

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER

KRISTIN M. PERRY,

)

SANDRA B. STIER, PAUL T. KATAMI, )

and JEFFREY J. ZARRILLO,

)

)

Plaintiffs,

)

)

VS.

) NO. C 09-2292-VRW

)

ARNOLD SCHWARZENEGGER, in his

)

official capacity as Governor of )

California; EDMUND G. BROWN, JR., )

in his official capacity as

)

Attorney General of California; )

MARK B. HORTON, in his official )

capacity as Director of the

)

California Department of Public )

Health and State Registrar of

)

Vital Statistics; LINETTE SCOTT, )

in her official capacity as Deputy )

Director of Health Information & )

Strategic Planning for the

)

California Department of Public )

Health; PATRICK O'CONNELL, in his )

official capacity as

)

Clerk-Recorder for the County of )

Alameda; and DEAN C. LOGAN, in his )

official capacity as

)

Registrar-Recorder/County Clerk )

for the County of Los Angeles,

)

) San Francisco, California

Defendants.

) Friday

___________________________________) January 15, 2010

TRANSCRIPT OF PROCEEDINGS

Reported By: Katherine Powell Sullivan, CRR, CSR 5812 Debra L. Pas, CRR, CSR 11916 Official Reporters - U.S. District Court

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1 witness.

2

MR. McGILL: Thank you, your Honor. Matthew McGill

3 Gibson, Dunn and Crutcher for the plaintiffs.

4

The plaintiffs call Dr. Michael Lamb.

5

MICHAEL LAMB,

6 called as a witness for the Plaintiffs herein, having been

7 first duly sworn, was examined and testified as follows:

8

THE WITNESS: I do.

9

THE CLERK: Thank you. Please have a seat.

10

State your name, please.

11

THE WITNESS: My name is Michael Lamb, spelled

12 L-A-M-B.

13

THE CLERK: Thank you.

14

DIRECT EXAMINATION

15 BY MR. MCGILL:

16 Q. Good morning Dr. Lamb.

17 A. Good morning, Mr. McGill.

18 Q. Dr. Lamb, what is your current occupation?

19 A. I'm currently a professor and head of the Department of

20 Social and Developmental Psychology at the University of

21 Cambridge in England.

22 Q. And before you held your position at the University of

23 Cambridge, what position did you hold before that?

24 A. For 17 years before that I was head of the section on

25 social and emotional development at the National Institute of

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1 researcher to ask those questions about why these differences

2 exist, rather than simply to note the numbers themselves.

3

The final thing that's missing here, and that would

4 concern me as a summary of the evidence, is that it doesn't

5 acknowledge the fact that, notwithstanding these differences,

6 the majority of children growing up in families without their

7 father are perfectly well adjusted.

8 Q. Dr. Lamb, did you have hold the view that children need a

9 family structure with a male parent to adjust well?

10 A. You know, when I began my career in the early 1970's, that

11 was widely believed to be true. And so when I began my

12 research, it was with the presumption or prediction that this

13 was likely to be the case.

14

My first research was concerned with exploring the

15 attachments that young babies form to their mothers and

16 fathers. And I explored in that early research the differences

17 and the ways in which is mothers and fathers behaved and asked

18 whether those differences, in fact, were important, whether

19 they did show that children needed to be raised by a masculine

20 as well as by a feminine parent.

21

The results of both my research and, more

22 significantly, the larger body of research that developed since

23 the early 1970's has made clear that that initial prediction

24 was incorrect.

25

And we have now as a field come to the conclusion

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1 that I stated earlier; that what makes for an effective parent

2 is the same whether or not you are talking about a mother or a

3 father, and that children do not need to have a

4 masculine-behaving parent figure, a father, in order to be well

5 adjusted.

6 Q. Is there any support for the view that children need to

7 have a female parent to adjust well?

8 A. No. The same is true with respect to that.

9 Q. How long has it been accepted as the consensus view within

10 your field that the three factors you described earlier, as

11 opposed to family structure, are the factors that most affect

12 child adjustment?

13 A. I think the fields began to coalesce around and to focus

14 on these issues from the early to mid-1980's. And I would say

15 that by the beginning of the 1990's, this would have been the

16 overwhelming consensus in the field.

17 Q. And if I could get into Cambridge and take a class in

18 developmental psychology, is this what I would be taught today?

19 A. It is.

20 Q. Do you have -- you should have in front of you a copy of

21 two books. One is your own book, the role of the father in

22 child development, and that has been marked as PX-2266.

23

And the other is a book by Susan Golombok entitled

24 "Parenting, What Really Counts." And that is marked as

25 DIX-792.

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1 A. It certainly can, yes.

2 Q. And there is evidence that men who are married to women,

3 however, are less likely to drink heavily and less likely to

4 gamble, correct?

5 A. I've heard of that research. It's obviously outside of my

6 expertise -- range of expertise, yes.

7 Q. When it comes to parenting skills and abilities, you're

8 not saying that men and women are completely interchangeable,

9 correct?

10 A. What I'm saying is that where it comes to the aspects of

11 parenting that affect children's adjustment, it's the same

12 features of the parents' behavior that are important for their

13 children's adjustment.

14 Q. I would like to direct your attention to page 225 of your

15 deposition in this case, lines 9 through 14.

16 A. That's back to --

17 Q. Binder 1, the testimony binder.

18 A. Okay. Number 1. And what pages was that?

19 Q. 225.

20 A. Okay.

21 Q. And line 9, it says -- let me make sure I'm in the right

22 place here. All right. Line 9 through 14. Line 9 starts with

23 my question:

24

"Is it your opinion that men and women are

25

completely interchangeable in terms of

ER 76

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1 processes involved when you have something occurring very early

2 in the child's life. You have longer periods of time involved.

3 That's correct.

4 Q. The attachment between -- excuse me.

5

There are studies that show that the attachment

6 between babies and fathers is also strong, and that it might

7 serve needs that are not met in the infant-mother relationship,

8 correct?

9 A. I'm -- well, certainly, I conducted a lot of that area of

10 research on babies' attachments to mothers and fathers. And if

11 you're talking about babies being raised in families with two

12 parents, there's a significant amount of evidence that both of

13 those relationships have an important impact on those

14 children's development.

15 Q. And there is data that suggests that the differences

16 between maternal and paternal behavior are more strongly

17 related to either the parents' biological gender or sex roles,

18 than to either of their degree of involvement in infant care or

19 their attitudes regarding the desirability of paternal

20 involvement in infant care, correct?

21 A. I think that's generally not the case.

22 Q. Well, let's look at tab 12. And this is, "Attachment and

23 Affiliative Systems." And I'd like to direct your attention to

24 page 117. This is a -- do you recall writing chapter 10 of

25 this book, "Effect of Gender and Caretaking Role on

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1 Parent/Infant Interaction"?

2 A. Believe it or not, I do, even though it was written in the

3 late 1970s, and published in 1982.

4 Q. Okay. And let's turn to page 117.

5 A. Uh-huh.

6 Q. And here, you, as an author wrote:

7

"The data suggests that the differences

8

between maternal and paternal behavior are

9

more strongly related to either the parents'

10

biological gender or sex roles, than to

11

either their degree of involvement in infant

12

care or their attitudes regarding the

13

desirability of paternal involvement in

14

infant care."

15

You believed that at the time you wrote this,

16 correct?

17 A. I wrote this chapter describing a particular study that

18 was conducted, as I said, in the late 1970s. And the sentence

19 that you just read was our summary of the results of that study

20 conducted in the late 1970s.

21

As I testified earlier, I certainly believed, at that

22 point, that these issues might be really important. And that's

23 why we did studies like this. As I also testified earlier,

24 that is a finding that has not held up in subsequent research.

25 Q. Well, so science was wrong?

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1 statement to be true?

2 A. Well, as you pointed out, I wrote this when I was a

3 graduate student beginning my career, studying the

4 relationships between infants and fathers and infants and

5 mothers.

6

And in that context, in the context of a field where

7 there was a tremendous focus on the relationships between

8 children and their heterosexual mothers, and complete

9 inattention to the possibility that children might have other

10 significant relationships, I wrote this article, drawing

11 attention to the fact that for those many children who grew up

12 with two heterosexual parents it was important to study the

13 role of those other individuals in the child's life.

14

I wrote another article in the same -- in the same

15 journal, a few years later -- and perhaps you have this under

16 one of these other tabs, too, -- in which I pointed out --

17 you've done a great job for me, in bringing back these great

18 old memories --

19

(Laughter)

20 Q. There'll be more.

21 A. I'm sure.

22

-- where I focused on the fact that children actually

23 grow up in more complicated social environments. Not only do

24 many of them have significant relationships with fathers, many

25 also have a significant relationship with a brother, a sister,

ER 79

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1 A. Uh-huh.

2 Q. It's entitled "Fatherhood in the 21st Century." And you

3 were a coauthor of it; is that right?

4 A. That's right, yeah.

5 Q. Okay. And if we turn to the second page, which is page

6 128, in the left-hand column, second full paragraph, the second

7 sentence says, "Boys growing up with [sic] fathers seem

8 especially prone to exhibit problems in the areas of sex role

9 and gender identity development."

10

Has that finding that was in your article held up?

11 A. Uhm, that finding is not as clear in the larger sample

12 studies that have been conducted. The quotation there was

13 citation to a study done by a psychologist, Mavis Hetherington.

14

And most of the research on the effects of father

15 absence, as we've discussed it here, doesn't show those

16 differences in sex role and gender identity development.

17 Q. All right. Now, how about the finding that you reference

18 in your 2000 paper, about boys without fathers being prone to

19 poor school performance. Has that held up?

20 A. Yes.

21 Q. And what about psychosocial adjustment, has that finding

22 with respect to that held up?

23 A. Yeah, we talked about that on -- in the direct

24 examination. There are those correlations.

25 Q. And is there -- what about self-control?

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1 A. Uhm, there certainly are differences associated with 2 self-control; particularly manifest, say, in difficulties with 3 delinquent behavior in adolescence. 4 Q. Is there a causal connection between father absence and 5 these problems? 6 A. No. As I tried to explain earlier, the literature 7 suggests that the processes that I talked about, the quality of 8 the relationships with the parents, the quality of the 9 relationships between the parents, and the social, emotional 10 and economic resources available to the family, are the most 11 important factors in directly explaining those differences. 12 Q. All right. Now, you would agree that nurturant fathers 13 may contribute greatly to the psychological adjustment of their 14 daughters, correct? 15 A. Yeah. 16 Q. And they may facilitate their happiness in subsequent 17 heterosexual relationships? 18 A. Yes. 19 Q. All right. And there is evidence suggesting that 20 disturbed father-child relationships and the failure to achieve 21 same-sex identification may be pathogenic; is that correct? 22 A. Can we take those two things apart? 23 Q. Sure. 24 A. Just repeat them again for me. The first, in terms of the 25 importance of a satisfying relationship with a parent, that's
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1

"We conclude that in practice the kind of

2

mother-father relationship most conducive to

3

responsible fathering in contemporary U.S.

4

society is a caring, committed, collaborative

5

marriage. Outside of this arrangement,

6

substantial barriers stand in the way of

7

active, involved fathering."

8

Does this statement accurately summarize the

9 literature?

10 A. It accurately summarizes the literature that they're

11 talking about, which is studies of heterosexual parents raising

12 children, yes.

13 Q. All right. And let's turn to the next tab in your binder,

14 tab 26. This is another report by the Institute for American

15 Values. It's DIX38.

16

MR. THOMPSON: And we'd ask the Court to take

17 judicial notice of DIX38.

18

THE COURT: Very well.

19 BY MR. THOMPSON:

20 Q. And turning your attention, Dr. Lamb, to page 32 of this

21 report, under the conclusion. Are you there?

22 A. Yeah.

23 Q. Okay. It says, in the second paragraph, under conclusion:

24

"But marriage matters. Children in average

25

intact married families do better than

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1

children in average single and stepparent

2

families."

3

Do you agree with that statement?

4 A. On average, yes, I think that's -- that's true.

5 Q. Okay.

6 A. As I've testified earlier.

7 Q. I'd like to direct your attention to the next tab in your

8 binder, 27, which is DIX121. This is a document from the

9 Progressive Policy Institute entitled, "Putting Children

10 First" --

11

THE COURT: Before you go on to that --

12

MR. THOMPSON: Yes.

13

THE COURT: -- let me ask the witness: With

14 reference to the statement that counsel has referred you to in

15 DIX38, is that statement based upon evidence drawn from

16 opposite-sex couples?

17

THE WITNESS: Not to my knowledge.

18

THE COURT: So this would include same-sex couples?

19

THE WITNESS: I believe it does not.

20

THE COURT: Does not?

21

THE WITNESS: Correct. I'm sorry.

22

THE COURT: So it would be based solely upon evidence

23 drawn from studies of opposite-sex couples; is that correct?

24

THE WITNESS: I believe that's true, yes. I'm not

25 familiar with this document. But the -- you know, it's -- the

ER 83

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1

2

3

CERTIFICATE OF REPORTERS

4

We, KATHERINE POWELL SULLIVAN and DEBRA L. PAS,

5 Official Reporters for the United States Court, Northern

6 District of California, hereby certify that the foregoing

7 proceedings in C 09-2292 VRW, Kristin M. Perry, et al. vs.

8 Arnold Schwarzenegger, in his official capacity as Governor of

9 California, et al., were reported by us, certified shorthand

10 reporters, and were thereafter transcribed under our direction

11 into typewriting; that the foregoing is a full, complete and

12 true record of said proceedings at the time of filing.

13

14

/s/ Katherine Powell Sullivan

15

Katherine Powell Sullivan, CSR #5812, RPR, CRR

16

U.S. Court Reporter

17

18

19

/s/ Debra L. Pas

20

Debra L. Pas, CSR #11916, RMR CRR

U.S. Court Reporter

21

22

Saturday, January 16, 2010

23

24

25

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Exhibit C
ER 85

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

23

Defendants,

DECLARATION OF TARA BORELLI IN SUPPORT OF PLAINTIFFS’ REPLY TO THE COALITION’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

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1

I, Tara L. Borelli, hereby declare and state as follows:

2

1. I am a staff attorney with Lambda Legal Defense and Education Fund, Inc., and

3 co-counsel of record for the plaintiffs in this matter. I am licensed to practice law in the States

4 of Washington and California and was admitted pro hac vice to practice before this Court. I

5 make this declaration of my own personal knowledge and, if called as a witness, could and

6 would testify competently to the matters stated herein.

7

2. Attached as Exhibit 1 is a true and correct copy of Plaintiff’s and Plaintiff

8 Intervenor’s Notice of Motion and Motion in Limine to Exclude the Expert Reports, Opinions,

9 and Testimony of Katherine Young, Loren Marks and David Blankenhorn, filed December 7,

10 2009 in Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. Cal.).

11

3. Attached as Exhibit 2 is a true and correct copy of excerpts from the certified

12 deposition transcript of Loren Marks taken on October 30, 2009 in Perry v. Schwarzenegger,

13 No. 09-CV-2292 VRW (N.D. Cal.).

14

15

Signed under penalty of perjury under the laws of the United States this 8th day of

16 November, 2012.

17

/s/ Tara L. Borelli

18

Tara L. Borelli

19

20

21

22

23

24

25

26

27

28

- 2 -
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Exhibit 1
ER 88

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Gibson, Dunn & Crutcher LLP

GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson, SBN 38137 tolson@gibsondunn.com Matthew D. McGill, pro hac vice 1050 Connecticut Avenue, N.W., Washington, D.C. 20036 Telephone: (202) 955-8668, Facsimile: (202) 467-0539
Theodore J. Boutrous, Jr., SBN 132009 tboutrous@gibsondunn.com Christopher D. Dusseault, SBN 177557 Ethan D. Dettmer, SBN 196046 333 S. Grand Avenue, Los Angeles, California 90071 Telephone: (213) 229-7804, Facsimile: (213) 229-7520
BOIES, SCHILLER & FLEXNER LLP David Boies, pro hac vice dboies@bsfllp.com 333 Main Street, Armonk, New York 10504 Telephone: (914) 749-8200, Facsimile: (914) 749-8300
Jeremy M. Goldman, SBN 218888 jgoldman@bsfllp.com 1999 Harrison Street, Suite 900, Oakland, California 94612 Telephone: (510) 874-1000, Facsimile: (510) 874-1460
Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO
Dennis J. Herrera, SBN 139669 Therese M. Stewart, SBN 104930 Danny Chou, SBN 180240
One Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-4708, Facsimile (415) 554-4699
Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, et al.,

CASE NO. 09-CV-2292 VRW

Plaintiffs, and CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Intervenor, v.

PLAINTIFFS’ AND PLAINTIFFINTERVENOR’S NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE THE EXPERT REPORTS, OPINIONS, AND TESTIMONY OF KATHERINE YOUNG, LOREN MARKS AND DAVID BLANKENHORN

ARNOLD SCHWARZENEGGER, et al., Defendants,
and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors.
1

PLAINTIFFS’ MIL NO. 1 OF 2
[Declaration of Rebecca Justice Lazarus and Proposed Order Filed Concurrently Herewith]
Final Pretrial Conference Date: December 16, 2009 Time: 10:00 a.m. Judge: Chief Judge Walker Location: Courtroom 6, 17th Floor

09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE PROPOSED EXPERTS YOUNG, MARKS, AND BLANKENHORN
ER 89

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1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:

2

PLEASE TAKE NOTICE that on December 16, 2009, at 10:00 a.m., or as soon thereafter as

3 counsel may be heard, in the United States District Court for the Northern District of California, San

4 Francisco Division, Courtroom 6, located at 450 Golden Gate Avenue, San Francisco, California

5 94102, Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarillo

6 (collectively, “Plaintiffs”) and Plaintiff-Intervenor the City and County of San Francisco (“Plaintiff-

7 Intervenor”) will and hereby do move in limine for an order excluding the expert reports, opinions,

8 and testimony of the following individuals, each of whom were designated as an expert witness in

9 this matter by Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez,

10 Hak-Shing William Tam, Mark A. Jansson, and ProtectMarriage.com – Yes on 8, A Project of

11 California Renewal (“Proponents”):

12

(1) Katherine Young;

13

(2) Loren Marks; and

14

(3) David Blankenhorn.

15

This Motion is made pursuant to Rules 104, 403, and 702 of the Federal Rules of Evidence,

16 on the grounds that Katherine Young, Loren Marks and David Blenkhorn are not qualified experts

17 and the opinions and testimony of Proponents’ Proposed Experts are neither relevant nor reliable

18 pursuant to the standards set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and

19 its progeny. Moreover, the expert opinions and testimony of the Proposed Experts are inadmissible

20 because any probative value is substantially outweighed by the danger of unfair prejudice, confusion

21 of the issues, waste of time, undue delay, and needless presentation of cumulative evidence. See Fed.

22 R. Evid. 403.

23

Because the purported expert testimony of Katherine Young, Loren Marks, and David

24 Blankenhorn does not meet the standards set forth in Daubert, it should not be admitted into evidence

25 or, at the very least, should be accorded little to no weight. Given that this is a bench trial, Plaintiffs

26 and Plaintiff-Intervenor leave to the Court’s discretion whether it wishes to exclude this evidence in

27 advance of trial or, alternatively, explore these experts’ qualifications during trial through direct and

28 cross-examination and make the determination based on that more complete testimony. In any event,

Gibson, Dunn & Crutcher LLP

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ER 90

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1 the testimony offered by Proponents is not admissible to prove or refute any issue germane to this

2 case.

3

This Motion is based upon this Notice of Motion and Motion, the attached Memorandum of

4 Points and Authorities, the pleadings, records, and papers on file with this Court, all matters upon

5 which this Court may take judicial notice, and such oral arguments as the Court may receive.

6

7 DATED: December 7, 2009 8 9 10 11 12

GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson Theodore J. Boutrous, Jr. Christopher D. Dusseault Ethan D. Dettmer Matthew D. McGill Amir C. Tayrani Sarah E. Piepmeier Theane Evangelis Kapur Enrique A. Monagas

13

By:

/s/

14

Theodore B. Olson

15

and

16

BOIES, SCHILLER & FLEXNER LLP

David Boies

17

Jeremy M. Goldman

Roseanne C. Baxter

18

Richard J. Bettan

Beko O. Richardson

19

Theodore H. Uno

20

Attorneys for Plaintiffs

KRISTIN M. PERRY, SANDRA B. STIER,

21

PAUL T. KATAMI, and JEFFREY J. ZARRILLO

22 //
23 // 24
// 25

26

27

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Gibson, Dunn & Crutcher LLP

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ER 91

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Gibson, Dunn & Crutcher LLP

DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney DANNY CHOU Chief of Complex and Special Litigation RONALD P. FLYNN VINCE CHHABRIA ERIN BERNSTEIN CHRISTINE VAN AKEN MOLLIE M. LEE Deputy City Attorneys

By:

/s/

Therese M. Stewart

Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO

4
09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE PROPOSED EXPERTS YOUNG, MARKS, AND BLANKENHORN
ER 92

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1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ............................................................................................................................. 1

4 II. THE LEGAL STANDARD GOVERNING EXPERT TESTIMONY ............................................ 3

5

A. The Witness Must Qualify as an Expert ....................................................................... 3

6

B. The Witness’ Testimony Must Be Based on Scientific, Technical, or

“Other Specialized” Knowledge and Must Concern a Matter Beyond a

7

Layperson’s Common Knowledge................................................................................ 4

8

C. The Witness’ Testimony Must be Reliable and Relevant............................................. 4

9

1. Reliability.......................................................................................................... 4

10

2. Relevance .......................................................................................................... 6

11

D. The Probative Value of the Purported Expert’s Testimony Must

Outweigh its Prejudicial Effect ..................................................................................... 6

12

III. THE COURT SHOULD EXCLUDE THE TESTIMONY OF PROPONENTS’

13

PROPOSED EXPERTS – YOUNG, MARKS AND BLANKENHORN ................................ 7

14

A. Katherine Young ........................................................................................................... 7

15

1. Dr. Young is Not Qualified to Offer an Expert Opinion on Any

Issue in This Case ............................................................................................. 7

16

2. Dr. Young’s Opinion Lacks Relevance to the Factual Issues of

17

this Case ............................................................................................................ 8

18

3. Dr. Young’s Opinion Lacks a Reliable Methodology ...................................... 9

19

4. Dr. Young’s Testimony Would Waste Time and Create

Confusion and is thus Inadmissible Under Federal Rule of

20

Evidence 403................................................................................................... 11

21

B. Loren Marks ................................................................................................................ 11

22

1. Dr. Marks is Not Qualified to Offer an Expert Opinion in this

Case................................................................................................................. 11

23

2. Dr. Marks’ Report, Opinions, and Testimony Have No

24

Relevance to this Litigation ............................................................................ 12

25

3. Dr. Marks’ Report, Opinions, and Testimony are Unreliable......................... 14

26

4. Dr. Marks’ Report, Opinions, and Testimony Lack Probative

Value and are thus Inadmissible Under Federal Rule of

27

Evidence 403................................................................................................... 16

28

C. David Blankenhorn ..................................................................................................... 16

Gibson, Dunn & Crutcher LLP

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1

TABLE OF CONTENTS

(Continued)

2

Page

3

1. Mr. Blankenhorn is Not Qualified to Offer an Expert Opinion in

4

this Case .......................................................................................................... 16

5

2. Mr. Blankenhorn Has No Relevant Opinions to Offer ................................... 17

6

3. Mr. Blankenhorn’s Conclusions Are Not Based on a

Discernible Methodology and are Unreliable ................................................. 17

7

4. Mr. Blankenhorn’s Testimony Would Waste Time and Create

8

Confusion and is thus Inadmissible Under Federal Rule of

Evidence 403................................................................................................... 20

9

IV. THE COURT SHOULD EITHER EXCLUDE THE TESTIMONY OF THESE

10

PROPOSED EXPERTS BEFORE TRIAL OR REJECT SUCH TESTIMONY

AFTER EXPLORING THEIR QUALIFICATIONS DURING TRIAL ................................ 21

11

V. CONCLUSION .............................................................................................................................. 22

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TABLE OF AUTHORITIES
Page(s)
CASES
Beech Aircraft Corp. v. United States, 51 F.3d 834 (9th Cir. 1995)................................................................................................................ 4
Carnegie Mellon Univ. v. Hoffman-LaRoche, Inc., 55 F. Supp. 2d. 1024 (N.D. Cal. 1999) .............................................................................................. 5
CFM Commc'ns, LLC v. Mitts Telecasting Co., 424 F. Supp. 2d 1229 (E.D. Cal. 2005)............................................................................................ 21
Daubert v. Merrell Dow Pharms., 43 F.3d 1311 (9th Cir. 1995).................................................................................. 5, 9, 14, 15, 16, 20
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)................................................................................... 4, 5, 6, 7, 9, 11, 12, 13, 17
Domingo ex rel. Domingo v. T.K., 289 F.3d 600 (9th Cir. 2002)........................................................................................................ 6, 20
Fechtig v. Sea Pac. Inc., No. C 03-4056 JL 2006 WL 2982148 (N.D. Cal. Oct. 17, 2006).................................................................................. 22
Gen. Elec. v. Joiner, 522 U.S. 136 (1997)......................................................................................................... 6, 13, 14, 18
Jinro Am. Inc. v. Secure Invs., Inc., 266 F.3d 993 (9th Cir. 2001), amended by 272 F.3d 1289 (9th Cir. 2001) ............................................................................. 3, 9, 20
Jones v. United States, 127 F.3d 1154 (9th Cir. 1997).......................................................................................................... 22
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)................................................................................................. 4, 5, 9, 14, 15, 21
Laconner Assocs. Ltd. Liab. Co. v. Island Tug & Barge Co., 2008 WL 2077948 (W.D. Wash. May 15, 2008)............................................................................. 21
LuMetta v. U.S. Robotics, Inc., 824 F.2d 768 (9th Cir. 1987).............................................................................................. 3, 8, 11, 12
Mukhtar v. Cal. State Univ., 299 F.3d 1053 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003) ........................................................................... 5, 10, 20
Thomas v. Newton Int’l Enters., 42 F.3d 1266 (9th Cir. 1994).............................................................................................................. 3
United States v. Alatorre, 222 F.3d 1098 (9th Cir. 2000).......................................................................................................... 21
United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000)............................................................................................................ 3
United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001) ....................................................................................... 4
United States v. Verduzco, 373 F.3d 1022 (9th Cir. 2004)...................................................................................................... 6, 21
iii
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1

TABLE OF AUTHORITIES

(Continued)

2

Page(s)

3

Varnum v. Brien,

4 No. CV5965 (Iowa Dist. Ct. 2007) ................................................................................................ 1, 9

5

Volk v. United States, 57 F. Supp. 2d 888 (N.D. Cal. 1999) ............................................................................................... 21

6

RULES

7 Fed. R. Evid. 104 ................................................................................................................. 1, 3, 4, 7, 17

8 Fed. R. Evid. 403 ..................................................................................................... 1, 3, 6, 7, 11, 16, 21 Fed. R. Evid. 702 ....................................................................................................... 1, 2, 3, 4, 6, 7, 8, 9
9

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3

Proponents have offered three purported experts – Katherine Young, Loren Marks, and David

4 Blankenhorn – who fail to meet even the minimum requirements imposed by the Federal Rules of 5 Evidence.1

6

Katherine Young. A self-described expert in “comparative religion” with an emphasis on

7 “Hinduism,” Proponents offer Dr. Young’s testimony on “what universally constitutes marriage and

8 why.” But Dr. Young lacks any relevant expertise to opine on this topic, and the conclusions set

9 forth in her report and deposition consist of little more than her own personal reflections on the

10 meaning of marriage. They are based on no scientific or specialized methodology; indeed, Dr.

11 Young has not even reviewed the vast majority of the relevant literature and policy statements

12 produced by professional associations in the fields of anthropology, psychology, medicine, or child

13 welfare (to name only a few) because she deems them “irrelevant” to her inquiry. For many of these

14 same reasons, Dr. Young’s testimony was excluded in Varnum v. Brien, No. CV5965 (Iowa Dist. Ct.

15 2007), a case in which she offered testimony on the same issues. Because Dr. Young lacks the

16 necessary qualifications to serve as an expert on any issues relevant to this matter and has no reliable

17 support for her conclusions, her testimony should be found inadmissible.

18

Loren Marks. Dr. Marks seeks to opine generally on why the biological, marriage-based

19 family is the “ideal” structure for child outcomes, but lacks any relevant qualifications or background

20 to address that question with respect to the issues presented by this case – whether biological,

21 marriage-based families produce child outcomes that are better, worse or the same as same-sex parent

22 families, or even opposite-sex parent, adoptive families. Dr. Marks has no discernible methodology

23 on which to base his claims (indeed, at several points, he disavowed his own conclusions on the

24

25

1 Rebuttal expert discovery is ongoing and, pursuant to this Court’s order of August 19, 2009,

26

does not conclude until December 31, 2009. Doc #160. Proponents’ rebuttal experts have not

yet been deposed. Accordingly, Plaintiffs and Plaintiff-Intervenor reserve the right to move in

27

limine to exclude rebuttal expert reports, opinions, and testimony pursuant to Rules 104, 403,

and 702 of the Federal Rules of Evidence following the completion of rebuttal expert

28

discovery.

Gibson, Dunn & Crutcher LLP

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1 importance of a biological link to child outcomes) and as such, his opinions are unreliable and

2 irrelevant under Federal Rule of Evidence 702. Thus, this Court should find Dr. Marks’ testimony,

3 opinions, and report inadmissible.

4

David Blankenhorn. Mr. Blankenhorn has no expertise in any academic field relevant to this

5 litigation, but nonetheless purports to offer “expert” opinion based on nothing more than his “reading

6 and reflection” on works from various fields in which he lacks expertise. Mr. Blankenhorn’s report

7 eschews any mention of either Prop. 8 or California generally. Instead, he seeks to offer his general

8 conclusions on the purpose of the institution of marriage and the harms he personally believes will

9 result from allowing marriage of gay and lesbian individuals. He has neither reviewed, nor is aware

10 of any data that support his belief that the institution of marriage is designed primarily to provide a

11 stable and loving environment for the biological children produced from that marriage. Instead, he

12 supports his views by stringing together quotations from various other authors and pointing to his list

13 of the supposed harms of allowing gay and lesbian individuals to marry. This list consists of nothing

14 more than a partial regurgitation of a list produced during an anonymous “group thought

15 experiment,” and thus is not based on a reliable methodology as is required of admissible expert

16 conclusions under the Federal Rules of Evidence. As such, his opinions should be deemed

17 inadmissible.

18

In short, these individuals are not qualified to serve as expert witnesses. More importantly,

19 each of their generic conclusions, untethered to any of the specific factual issues in this case,

20 combined with the lack of any discernible methodology to support them, renders each of their

21 opinions unreliable and irrelevant under Federal Rule of Evidence 702. For the reasons explained

22 herein, it is entirely appropriate for this Court to exclude these witness’ testimony in advance of trial.

23 However, if the Court determines that it would be appropriate to explore their qualifications at trial

24 through direct and cross-examination, Plaintiffs and Plaintiff-Intervenor ask the Court to exclude

25 their testimony from evidence, or accord it little or no weight, after such evidence is presented during

26 trial.

27

28

Gibson, Dunn & Crutcher LLP

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1

II. THE LEGAL STANDARD GOVERNING EXPERT TESTIMONY

2

Federal Rule of Evidence 702 provides that expert testimony relating to “scientific, technical,

3 or other specialized knowledge” is admissible only if it “will assist the trier of fact to understand the

4 evidence or to determine a fact in issue.” Fed. R. Evid. 702. A witness qualified as an expert may

5 only offer testimony “in the form of an opinion or otherwise, if: (1) the testimony is based upon

6 sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the

7 witness has applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702.

8

In practical terms, this means that: (1) Proponents’ Proposed Experts must qualify as experts,

9 (2) the testimony, reports, and opinions of Proponents’ Proposed Experts must be based on scientific,

10 technical, or “other specialized knowledge” and concern a matter beyond a layperson’s

11 understanding; and (3) the testimony, reports, and opinions of Proponents’ Proposed Experts must be

12 reliable and relevant. See, e.g., United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000).

13 Additionally, expert testimony is subject to general evidentiary rules, such as Federal Rule of

14 Evidence 403. See id.

15 A. The Witness Must Qualify as an Expert

16

As a preliminary matter, a witness must first qualify as an expert before he or she may proffer

17 expert testimony. See Fed. R. Evid. 104(a). A witness may be qualified as an expert on the basis of

18 “knowledge, skill, experience, training or education.” See Fed. R. Evid. 702. While Rule 702

19 “contemplates a broad conception of expert qualifications” that may be satisfied by a “minimal

20 foundation of knowledge, skill, and experience,” see Thomas v. Newton Int’l Enters., 42 F.3d 1266,

21 1269 (9th Cir. 1994), a witness still must have some foundation of knowledge, skill, or experience—a

22 witness with cursory or very limited experience does not satisfy this “foundation” requirement. See,

23 e.g., Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993, 1005–1006 (9th Cir. 2001), amended

24 by 272 F.3d 1289 (9th Cir. 2001) (finding purported expert on Korean business culture unqualified

25 because witness lacked legal, business, or financial expertise to evaluate substance of transaction at

26 issue, and witness had no education or training as a cultural expert or on Korean culture specifically);

27 LuMetta v. United States Robotics, Inc., 824 F.2d 768, 771 (9th Cir. 1987) (affirming district court’s

28

Gibson, Dunn & Crutcher LLP

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1 finding that proffered witnesses were unqualified to serve as experts because of their minimal

2 experience and personal knowledge regarding the subject of their proposed testimony).

3 B. 4 5

The Witness’ Testimony Must Be Based on Scientific, Technical, or “Other Specialized” Knowledge and Must Concern a Matter Beyond a Layperson’s Common Knowledge
In order to be admissible expert testimony, the testimony must be based on “scientific,

6 technical, or other specialized knowledge [that] will assist the trier of fact.” Fed. R. Evid. 702. A

7 witness may not testify as an expert unless he or she testifies about matters that are beyond the ability

8 and experience of the average layperson. See United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir.

9 2001), amended by 246 F.3d 1150 (9th Cir. 2001) (explaining expert testimony must also “address an

10 issue beyond the common knowledge of the average layman”); Beech Aircraft Corporation v. United

11 States, 51 F.3d 834, 842 (9th Cir. 1995) (excluding purported experts who were to offer testimony

12 “deciphering” audio recordings because “hearing is within the ability and experience of the trier of

13 fact.”) Testimony on an issue not outside a layperson’s understanding does not assist the trier of fact

14 and is thus not admissible expert testimony.

15 C. 16

The Witness’ Testimony Must be Reliable and Relevant Under Federal Rule of Evidence 702, the trial judge is charged with the task of ensuring that

17 an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Daubert

18 v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591–592 (1993). This “gatekeeping obligation” applies

19 not only to scientific testimony, but also to testimony based on “technical” and “other specialized”

20 knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–150 (1999). Accordingly,

21 Proponents bear the burden of establishing by a preponderance of the evidence that the testimony,

22 opinions, and reports of Proponents’ Proposed Experts are relevant and reliable. See Fed. R. Evid.

23 104(a); Daubert, 509 U.S. at 589–593.

24

1. Reliability

25

To be reliable, an expert’s conclusions must be based on the knowledge and experience of his

26 or her discipline, rather than on subjective belief or unsupported speculation. See, e.g., Daubert, 509

27 U.S. at 589–590; Kumho Tire, 526 U.S. at 148. The trial court must “make certain that an expert,

28 whether basing testimony upon professional studies or personal experience, employs in the courtroom

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1 the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

2 Kumho Tire, 526 U.S. at 152 (emphasis added). In cases of scientific testimony, this means that an

3 expert’s testimony must not only reflect scientific knowledge, but it also must be “derived by the

4 scientific method” and the work product must amount to “good science.” See Daubert v. Merrell

5 Dow Pharmaceuticals, 43 F.3d 1311, 1315 (9th Cir. 1995) (emphasis added) (“Daubert II”). In cases

6 of “technical” or “other specialized” testimony, the same standard applies, as would be applied to that

7 particular field. See Kumho Tire, 526 U.S. at 147–150. In essence, the Court “must ensure that ‘junk

8 science’ plays no part in the decision.” Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063 (9th Cir.

9 2002), amended by 319 F.3d 1073 (9th Cir. 2003).

10

The following non-exclusive factors may be considered in evaluating the reliability of an

11 expert’s methodology or technique: (1) whether the methodology or technique used can be (and has

12 been) tested; (2) whether the methodology or technique has been subjected to peer review and

13 publication; (3) whether the methodology or technique has a known potential rate of error; and (4)

14 whether the methodology or technique is generally accepted in the relevant scientific or technical

15 community. See Daubert, 509 U.S. at 591, 593–594; Kumho Tire, 526 U.S. at 149–150.

16

Whether the expert’s testimony “grow[s] naturally and directly out of research they have

17 conducted independent of the litigation, or whether they have developed their opinions expressly for

18 purposes of testifying” is particularly significant in evaluating reliability. Daubert II, 43 F.3d at 1317

19 (emphasis added). The Court, with few exceptions, “may not ignore the fact that a scientist’s normal

20 workplace is in the lab or the field, not the courtroom or the lawyer’s office.” Id. If evidence of pre-

21 litigation research or peer review is not available, the expert must (1) “explain precisely how they

22 went about reaching their conclusions” and (2) “point to some objective source – a learned treatise, a

23 policy statement of a professional association, a published article in a reputable science journal or the

24 like to show that they have followed the scientific method as it is practiced by (at least) a recognized

25 minority of scientists in their field. Carnegie Mellon Univ. v. Hoffman-LaRoche, Inc., 55 F. Supp.

26 2d. 1024, 1030, 1034 (N.D. Cal. 1999), citing Daubert II, 43 F.3d at 1319.

27

Finally, the Court must inquire into whether the witness has applied the principles and

28 methods reliably to the facts of the case. See Daubert, 509 U.S. at 593. Although the trial court may

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1 not decide upon the correctness of the expert’s conclusion, it may “conclude that there is simply too

2 great an analytical gap between the data and the opinion proffered.” Domingo ex rel. Domingo v.

3 T.K., 289 F.3d 600, 607 (9th Cir. 2002) (quoting General Electric v. Joiner, 522 U.S. 136, 146

4 (1997)). In other words, the necessary connection between the expert’s methodology and ultimate

5 conclusion may not be established on speculation alone. Joiner, 522 U.S. at 146 (“[N]othing in either

6 Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is

7 connected to existing data only by the ipse dixit of the expert.”)

8

2. Relevance

9

In addition to being based reliable, an expert’s testimony must be relevant. The Court must

10 assess whether the proffered expert testimony is sufficiently tied to the facts of the case such that it

11 will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Daubert, 509

12 U.S. at 591 (citing Fed. R. Evid. 702). Specifically, there must be a “fit” or valid connection between

13 the expert’s reasoning or methodology and the pertinent inquiry—the facts at issue—before the

14 Court. Daubert, 509 U.S. at 591–593.

15

In the context of this case, this Court has already identified areas of factual dispute that may

16 be relevant to the issues presented in three areas: (1) the appropriate level of scrutiny under the Equal

17 Protection clause; (2) evaluation of the state interests Proponents assert as bases for Prop. 8; and (3)

18 whether Prop. 8 discriminates based on sexual orientation or gender or both; and (4) whether Prop. 8

19 was passed with a discriminatory intent. Doc #76 at 6–9. With respect to each of these categories,

20 the Court elaborated the areas of factual development that may assist the Court in deciding these

21 issues:

22 D. The Probative Value of the Purported Expert’s Testimony Must Outweigh its Prejudicial Effect
23 Finally, as with all evidence, expert testimony may be excluded if its probative value is
24 substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time,
25 undue delay, or needless presentation of cumulative evidence. Fed. R. Evid. 403; United States v.
26 Verduzco, 373 F.3d 1022, 1032–1035 (9th Cir. 2004) (affirming trial court’s exclusion of testimony
27 of expert witness under Fed. R. Evid. 403). Because expert evidence may be misleading and is
28

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1 difficult to evaluate, a judge “exercises more control over experts than lay witnesses” in weighing

2 prejudice against probative value. Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of

3 the Federal Rules is Sound, 138 F.R.D. 631, 632 (1991)).

4

III. THE COURT SHOULD EXCLUDE THE TESTIMONY OF PROPONENTS’

PROPOSED EXPERTS – YOUNG, MARKS AND BLANKENHORN

5

Proponents offer Katherine Young, Loren Marks and David Blankenhorn as expert witnesses

6 in this case. The reports of each of these witnesses and their statements during their depositions

7 establish that they do not meet the requirements set forth in Federal Rule of Evidence 104, 403 and

8 702.

9

A. Katherine Young 10

1. Dr. Young is Not Qualified to Offer an Expert Opinion on Any Issue in

11

This Case

12

Proponents proffer Katherine Young, a professor in the Faculty of Religious Studies at

13 McGill University, as an expert in “comparative religion.” (Young Expert Report (“Young Rep.”) 1.)

14 Dr. Young seeks to offer her “expertise” to explain “what universally constitutes marriage and why.”

15 (Id.) Dr. Young is not an expert in sociology, psychology, anthropology, biology, medicine, child

16 development, statistics, survey construction and methodology or political science. (Young Dep. 7:8-

17 20; 37:14-38:9, November 13, 2009.) She admits she has not submitted any articles for peer review

18 in any relevant field. (See, e.g., id. at 11:19-13:5.) Indeed, her “expertise” is far more narrow than

19 the term “comparative religion” might indicate. She considers herself an expert only in the field of

20 religious studies, and then only in Hinduism. (Id. at 29:11-19; 60:19-25.) She does not specialize in

21 American religions, and she is not an expert on American denominations. (Id. at 65:14-16; 67:5-11.)

22 She has not studied marriage of same-sex couples in California, the United States, or in the world

23 generally. (Id. at 104:14-25.) As an academic in the field of Hindu religious studies, Dr. Young

24 simply has no foundation of knowledge, skill or experience necessary to serve as an expert on

25 “comparative religion” and certainly not on any of the factual issues presented by this case. Indeed,

26 she has acknowledged that the separation of church and state renders any comparison between legal

27 regimes based on religion (i.e., Hindu) to western civil law regimes inapposite to the question of

28 whether Prop. 8 is unconstitutional under Equal Protection Clause. (Id. at 232:21-233:6.)

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1 Accordingly, Dr. Young lacks even a minimal foundation of knowledge required by Federal Rule of

2 Evidence 702 to qualify her as an expert in this case. See, e.g., LuMetta, 824 F.2d at 771 (affirming

3 exclusion of experts for their minimal experience and lack of substantial personal knowledge of the

4 subject matter relevant to the case).

5

2. Dr. Young’s Opinion Lacks Relevance to the Factual Issues of this Case

6

This Court has identified certain factual issues that may be pertinent to the resolution of the

7 issues presented by this litigation. Doc #76 at 6–9. Those issues are specific to the factual situation

8 presented in this case – the passage of Prop. 8 in California and the resulting deprivation of the

9 constitutional rights of gay and lesbian individuals in California. Not only does Dr. Young’s

10 testimony in her expert report and deposition have no relationship to any of the issues identified by

11 the Court, but Dr. Young has expressly disclaimed her willingness or ability to offer expert testimony

12 on those issues, even when those issues might have some interplay with her study of religion.

13 Specifically, Dr. Young has stated that she has no opinion on: (1) whether permitting marriage of

14 same-sex couples would affect the number of heterosexual marriages or divorces (id. at 120:3-14);

15 (2) whether permitting marriage of same-sex couples affects the desire of heterosexuals to marry (id.

16 at 120:15-18); (3) whether or not discrimination against gay and lesbian individuals causes stress or

17 psychological damage (id. at 172:5-16; 173:18-25); (4) whether or not prohibiting gay and lesbian

18 individuals from marrying would have an adverse effect on them or their children, or whether

19 permitting them to marry would benefit them and their children. (Id. at 191:17-192:1.) She has

20 further stated that she has no opinion on what proportion of people opposed to marriage of same-sex

21 couples in California were motivated primarily by their religious beliefs. (Id. at 69:6-13.)

22

In short, Dr. Young seeks to testify on some broad-based conception of the “universal”

23 features and functions of marriage that have no relationship to any of the factual issues in dispute and

24 is based on little more than her speculation that such musings might be relevant. They are not and,

25 even if testimony on such supposed “universal” truths were somehow relevant, any opinion Dr.

26 Young might provide could not meet the standards for reliable expert testimony under Federal Rule

27 of Evidence 702. Indeed, any opinions Dr. Young has – by her own admission – are not based on

28 review of any studies that might enable her to offer conclusions on any issue in this case, and thus her

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1 opinions are based on nothing more than the “subjective belief or unsupported speculation” found

2 insufficient in Daubert. Daubert, 509 U.S. at 589–590.

3

3. Dr. Young’s Opinion Lacks a Reliable Methodology

4

As an initial matter, Dr. Young lacks any methodology for arriving at the conclusions stated

5 in her report and deposition. Her report consists of nothing more than her examination of a random

6 selection of societies to search for patterns that she categorizes as “universal.” (Young Rep. 2, 8.)

7 And her “comparative study of the worldview of major cultures and religions and the worldviews of

8 small-scale societies” is based on nothing more than her review of the work of one other academic

9 who did not consider the possibility of marriage of same-sex couples. (Young Rep. 2, 12; Young

10 Dep. 137:1-141:18.) Dr. Young has no systematic criteria for determining what constitutes a

11 “pattern” or what can determine “universality” and even concedes that these characterizations are not

12 absolute. (Young Rep. 2.) This haphazard sampling cannot constitute a methodology and amounts to

13 little more than a recitation of Dr. Young’s personal musings on what might be included in the

14 definition of marriage. The absence of any discernible methodology renders Dr. Young’s testimony

15 inadmissible as unreliable under Federal Rule of Evidence 702. Daubert, 509 U.S. at 590 (“Proposed

16 testimony must be supported by appropriate validation”); Daubert II, 43. F.3d at 1319 (“experts must

17 explain precisely how they went about reaching their conclusions”); Jinro America Inc., 266 F.3d at

18 1006 (excluding “impressionistic generalizations” based on haphazard experiences, anecdotal

19 examples, and news articles). Indeed, Dr. Young previously offered virtually identical testimony in

20 litigation raising similar issues in Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. 2007), and the trial

21 court there ruled Dr. Young’s testimony inadmissible under the Iowa rules of evidence for precisely

22 this reason. (See Declaration of Rebecca Justice Lazarus, Exh. G at 6–7.)

23

Moreover, by definition, Dr. Young cannot bring “the same level of intellectual rigor that

24 characterizes the practice of an expert in the relevant field,” Kumho Tire, 526 U.S. at 152, to her

25 testimony because she admits that she has not studied any issues central to the factual disputes in this

26 case. She purports to offer opinions and conclusions on the importance of protecting her defined

27 “norm” of marriage and predicts that changes in those norms would destabilize marriage. (Young

28 Rep. 11; Young Dep. 222:12-15.) But Dr. Young has not studied whether allowing gay and lesbian

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1 individuals to marry would actually affect that norm. For example, Dr. Young has not studied: (1)

2 the extent to which permitting marriage of same-sex couples affects the desire of heterosexuals to

3 marry (id. at 120:15-18); (2) the extent to which permitting marriage of same-sex couples affects the

4 stability or number of heterosexual marriages (id. at 119:10-120:18); (3) whether civil unions are

5 equally as successful as marriage at creating “durable” relationships (id. at 87:20-88:23); or (4) the

6 effects of domestic partnership laws or civil unions on marriage (id at. 95:4-97:18; 98:7-101:2). In

7 effect, Dr. Young’s failure to offer any support for her conclusions renders her opinions little more

8 than “junk science” that the Court “must ensure takes no part in the decision.” Mukhtar, 299 F.3d at

9 1063.

10

Indeed, the lack of any objective data results in internal inconsistencies in Dr. Young’s

11 analysis that further undermines the reliability of her conclusions. She acknowledges that it is not

12 necessarily harmful (and, in fact, can be beneficial) if norms of the past change to accommodate

13 alterations in social values and understandings (id. at 197:12-18), but has not studied the conditions in

14 the United States that might be relevant to whether it is desirable for the United States and its citizens

15 to end the prohibition on marriage by gay and lesbian individuals. (Id. at 211:16-23.)

16

Dr. Young also cannot offer reliable testimony because she has failed to consult, review or

17 evaluate any of the relevant authorities (and their associated methodologies) in any academic field on

18 the issues surrounding the marriage rights of gay and lesbian individuals. She has not endeavored to

19 determine what the various professional associations who have issued opinions on the implications of

20 marriage of same-sex couples have said with respect to any of the opinions she advances in her expert

21 report. (Id. at 152:15-153:23.) Indeed, she believes that such information would not be relevant to

22 her analysis. (Id. at 156:5-19.) She does not know whether the professional associations in the fields

23 of psychology, anthropology or sociology have taken a position on whether gay and lesbian

24 individuals should be permitted to marry one another, much less what those positions are. (Id. at

25 105:8-106:4; 152:15-153:23.) She offers opinions on the “likely effects of legalizing same-sex

26 marriage on children” (Young Rep. 18), but she has not studied what proportion of children are being

27 raised by two married people of the opposite sex. (Id. at 73:6-19.) Similarly, she has no knowledge

28 of any statements by professional organizations concerning whether or not same-sex parents are as

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1 effective as heterosexual parents in raising well-adjusted children. (Id. at 106:5-107:16; 108:15-

2 109:22.) She has not looked at the question of whether psychologists and sociologists believe it is

3 necessary to have time series data to address the effect of marriage of same-sex couples on child

4 welfare. (Id. at 91:21-92:3.) Dr. Young simply ignores what others with actual expertise in relevant

5 academic fields have concluded or considered in analyzing the same question she purports to answer.

6 Such willful blindness renders her report unreliable. See, e.g., Daubert, 509 U.S. at 589–590

7 (holding expert conclusions must be based on the knowledge and experience of his or her discipline,

8 not on “subjective belief or unsupported speculation”); LuMetta, 824 F.2d at 771 (affirming exclusion

9 of witnesses who lacked knowledge about the relevant subject matter).

10

Even in the area of religion, in which Dr. Young purports to have some expertise, she has

11 failed to review or study any information that might provide a basis for her conclusions in this case.

12 For example, she has not studied how the major Western religions or U.S. churches view

13 homosexuality. (See, e.g., Young Dep. 63:7-20 (Roman Catholicism), 69:21-70:10 (Baptist), 70:11-

14 12 (Presbyterianism)). These deficiencies underscore that Dr. Young has not (and cannot) apply the

15 principles she espouses to the facts of this case in any reliable manner.

16

4. Dr. Young’s Testimony Would Waste Time and Create Confusion and is

thus Inadmissible Under Federal Rule of Evidence 403

17

Dr. Young does not even purport to offer any opinion on any factual dispute in this case, and

18 her opinions are unreliable. Thus, consideration of Dr. Young’s testimony would waste time and

19 create confusion. See Fed. R. Evid. 403. Accordingly, Dr. Young’s testimony also fails to satisfy the

20 requirements of Federal Rule of Evidence 403 and should be excluded.

21

B. Loren Marks 22

1. Dr. Marks is Not Qualified to Offer an Expert Opinion in this Case 23
Proponents also proffer Dr. Loren Marks, an associate professor at the College of Agriculture

24 at Louisiana State University. (Marks Expert Report (“Marks Rep.”) 1.) Dr. Marks seeks to testify

25 as an expert on whether a “biological, marriage-based family” is “the ideal structure for child

26 outcomes.” (Id.) But Dr. Marks does not have the experience or education necessary to make a

27 determination on what type of family structure is “ideal” for child outcomes. His self-described areas

28

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1 of research interest include faith and families and African American families – discrete areas that

2 hardly provide Dr. Marks an adequate foundation to opine on an “ideal structure” for child outcomes.

3 (Marks Dep. 44:10-16, October 30, 2009.) He has never conducted original research on children with

4 gay or lesbian parents, and has never published or even written any works on the issue. (Id. at 58:3-

5 12.) Similarly, Dr. Marks’ work has not even focused on the general subject area of child adjustment.

6 (Id. at 53:21-54:10.) Dr. Marks’ expert report further demonstrates his lack of qualifications. As Dr.

7 Marks has no experience in the field in which he is purported to be an expert, Dr. Marks’ expert

8 report contains no references to his own work, and he did not consider any of his own work for the

9 report. See Marks Rep. Thus, Dr. Marks lacks the experience or knowledge required to qualify as an

10 expert on the “ideal” family structure for “child outcomes.” See LuMetta, 824 F.2d at 771 (excluding

11 experts who had some knowledge, but lacked experience with either the specific contract in question

12 or the specific type of company in question).

13

2. Dr. Marks’ Report, Opinions, and Testimony Have No Relevance to this

Litigation 14

Dr. Marks’ expert report, opinions, and testimony should be excluded because the subjects

15

upon which Dr. Marks opines have no relevance to the factual issues in this litigation. To be

16

admissible, an expert opinion must be “sufficiently tied to the facts of the case that it will aid the jury

17

in resolving a factual dispute.” See, e.g., Daubert, 509 U.S. at 591. The only factual dispute that Dr.

18

Marks has been proffered to opine on is Proponents’ claim that the state has an interest in preventing

19

marriage of gay and lesbian individuals because it would negatively affect child outcomes. This

20

Court has specified that this specific factual dispute is whether a married mother and father provides

21

the optimal child-rearing environment and whether excluding same-sex couples from marriage

22

promotes this environment. Doc #76 at 7–8. Dr. Marks’ report does not assist in answering those

23

questions, however, because he does not address child outcomes when the parents are of the same-sex

24

and thus cannot possibly illuminate any relevant factual disputes. Dr. Marks himself admits that his

25

expert report does not express an opinion about child outcomes for same-sex couples. (Id. at 114:2-

26

115:14.) Dr. Marks’ report only addresses the comparison of outcomes for children in biological,

27

intact families with non-marital, divorced, and/or step-families. (Id. at 88:17-90:9.) All three of

28

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1 these categories exclude the relevant family unit at issue here—a couple – gay or straight, that

2 biologically cannot have children, but together decide to adopt or utilize an egg or sperm donor. As

3 Dr. Marks has asserted that his expert opinions are limited to those cited in his expert report and 4 “whatever shows up in [his] rebuttal,”2 the universe of what Dr. Marks has to offer the Court, in way

5 of expert opinion, lies in his expert report. (Id. at 61:10-62:4.) However, Dr. Marks’ expert report

6 entirely fails to address the relevant issue at hand – the outcomes of children of same-sex couples as

7 compared to children of opposite sex couples who are biologically related to their children. Thus, Dr.

8 Marks’ expert opinions must be excluded as they will not assist the Court to understand whether the

9 Proponents’ claim that excluding same-sex couples from marrying will promote optimal outcomes.

10 See Daubert, 509 U.S. at 591 (explaining expert opinion must assist trier of fact to resolve a factual

11 dispute to be admissible).

12

Further, Dr. Marks would be unable to draw any relevant conclusions from his understanding

13 of studies comparing child outcomes in a biological, “in-tact” family with non-marital, divorced, and

14 step-families, as he concedes that same-sex parents should be studied as their own discrete category.

15 (See id. at 239:14-22.) Accordingly, Dr. Marks’ complete reliance on studies excluding same-sex

16 parents undermines his ability to opine on the impact same-sex parents have on child outcomes.

17 Joiner, 522 U.S. at 144–145 (upholding district court’s rejection of expert opinions because the

18 opinions were based on studies that were too dissimilar to the facts presented in the relevant litigation

19 and the experts failed to explain how and why they were able to extrapolate their opinions from the

20 dissimilar studies). Moreover, in his deposition, Dr. Marks withdrew his claim that genetic parent-

21 child relationships are important to child outcomes and noted that he knows of no empirical research

22 that identifies biology as the cause of good outcomes for children. (Id. at 81:18-82:9; 147:9-21.) Dr.

23 Marks also has no opinion as to the best family form for a child for which the “intact, biological

24 family” (as he defines it) is unavailable. (Id. at 102:7-10.) Thus, Dr. Marks should not be permitted

25

26

2 Given the major deficiencies in Dr. Marks’ expert report, during his deposition, Dr. Marks

27

claimed that he planned to prepare and submit a rebuttal report to specifically address

literature on same-sex parents. (Marks Dep. 32:13-33:1, 37:8-40:1, 61:10-62:4.) Dr. Marks

28

never submitted such a rebuttal.

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1 to extrapolate any opinions, as he has admitted that he has no familiarity with any material that would

2 be able to support his conclusions without causing the “analytical gap” prohibited in Joiner, 522 U.S.

3 at 145.

4

3. Dr. Marks’ Report, Opinions, and Testimony are Unreliable

5

In addition to being irrelevant, Dr. Marks’ expert opinions are unreliable. To arrive at his

6 conclusions, Dr. Marks utilizes no discernible methodology. See Daubert II, 43 F.3d at 1319

7 (explaining that a failure to explain the methodology utilized to arrive at a conclusion does not satisfy

8 the Daubert reliability requirement). At best, Dr. Marks’ expert report and testimony are akin to a

9 shallow book report. As evidenced by his expert report and deposition testimony, Dr. Marks’

10 “opinions” are nothing more than brief, out-of-context quotations of other scholars. Reciting the

11 conclusions or summaries of others, without offering explanation or elaboration on how these out-of-

12 context conclusions from other studies relate to the immediate case, cannot be considered to meet the

13 “same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” See

14 Kumho Tire, 526 U.S. at 152. Further, not only does Dr. Marks simply parrot the conclusions of

15 others, Dr. Marks makes no effort to explain why such conclusions are applicable in the immediate

16 case. Although “[t]rained experts commonly extrapolate from existing data,” “opinion evidence that

17 is connected to existing data only by the ipse dixit of the expert” may be excluded. See Joiner, 522

18 U.S. at 146. Further, without any context or insight into the quoted studies, it is impossible to

19 determine if the studies themselves are reliable or being cited in a reliable manner that is true to their

20 full findings.

21

Not only does Dr. Marks fail to offer any analysis or insight into any of the studies he quoted,

22 but he admits that he did not even completely read the studies cited in his report. (Marks Dep. 65:10-

23 66:6; 67:6-13.) Failing to read the sources upon which one entirely relies to draw conclusions can 24 hardly be considered a hallmark of a reliable methodology.3 More critically, Dr. Marks did not know

25

26

3 Further calling into question Dr. Marks’ diligence, Dr. Marks admits that some of the work he

27

has done should not be considered “high quality social science.” (Marks Dep. 50:10-14; 51:9-

52:7; 54:12-17.) Dr. Marks also admits that none of his own published articles can be

28

characterized as “gold standard, high end work.” (Id. at 71:1-7.)

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1 how the studies he cited actually defined the terms “biological” or “intact” – an essential piece to

2 understanding the meaning of the studies Dr. Marks relies upon for making his conclusions. (See,

3 e.g., 158:12-159:8.) Dr. Marks was similarly unable to verify that the studies he cited that used the

4 term “biological parent” defined it in a manner which excluded adoptive parents, as Dr. Marks

5 purports the term “biological parent” should. In one instance, Dr. Marks even cites a study, which

6 cited another study, that states most studies do not distinguish biological parents from adoptive

7 parents. (Id. at 144:3-13.) This lack of clarity in how his sources use “biological” is clearly not

8 because the definition of “biological” is unimportant to Dr. Marks’ findings – Dr. Marks himself

9 admits that using two sources, that each define the term differently, to draw one conclusion is

10 problematic. (See id. at 139:14-140:9.) Thus, it would be hard for Dr. Marks to credibly claim that

11 he employed the same level of intellectual rigor that an expert in his field would be expected to

12 employ. See Kumho Tire, 526 U.S. at 152 (holding trial court must “make certain that an expert . . .

13 employs in the courtroom the same level of intellectual rigor that characterizes the practice of an

14 expert in the relevant field”).

15

Dr. Marks himself also lacks familiarity with relevant studies that would assist him in coming

16 to his conclusions. At the time of Dr. Marks’ deposition, Dr. Marks could only name two studies,

17 one from 1996 and one from 2004, that compared different family structures, including same-sex

18 parents. (See Marks Dep. 30:4-32:10.) Dr. Marks was unable to provide any specificity about either

19 study at his deposition and did not cite either study in his expert report or list either study in his

20 “materials considered” index. (See id; Marks Rep.) Dr. Marks was also unable to name or even

21 generally describe any other studies comparing child outcomes by same-sex couples and heterosexual

22 couples. (See id.) Dr. Marks stated that “if he [was] a betting person” he would assume that “there

23 have been studies that have come out recently that I’m unaware of.” (Marks Dep. 33:3-7.) Dr.

24 Marks’ lack of relevant knowledge not only indicates a likely lack of methodology, it also indicates

25 the opinions Dr. Marks has to offer about “ideal” child outcomes or child outcomes in same-sex

26 families were developed purely for this litigation. An important hallmark of evaluating reliability is

27 whether the purported expert’s opinions are based in research that was conducted independently from

28 the litigation. See Daubert II, 43 F.3d at 1317. Clearly, Dr. Marks’ opinions asserted in this

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1 litigation were developed for the first time after being commissioned for this litigation. Accordingly,

2 Dr. Marks was required to “explain precisely how [he] went about reaching [his] conclusions” –

3 which he has entirely failed to do. Id.

4

Further, Dr. Marks’ admitted personal, religious views towards traditional marriage also

5 undermine the objectivity (and thus reliability) of his conclusions. Dr. Marks’ religious conviction

6 and personal dogma is that children are entitled to be born within the bonds of matrimony and to be

7 reared by a father and mother who honor marital vows with complete fidelity. (Marks Dep. 260:15-

8 262:6.) This personal dogma was developed before Dr. Marks graduated from college and well

9 before Dr. Marks began to consider himself a “social scientist.” (Id. at 275:5-276:3.) Dr. Marks

10 admitted that this personal dogma “ran around in [his] head” when he wrote his expert report. (Id. at

11 274:8-275:4.) Accordingly, not only does Dr. Marks’ lack of methodology cast severe doubt about

12 the admissibility of his conclusions, but Dr. Marks’ own possible personal bias calls his unsupported

13 conclusions further into question.

14

4. Dr. Marks’ Report, Opinions, and Testimony Lack Probative Value and

are thus Inadmissible Under Federal Rule of Evidence 403

15

The complete irrelevance of Dr. Marks’ conclusions to any issue in the case demonstrates the

16 lack of any probative value his conclusions may offer the Court. Thus, Dr. Marks’ report, opinions,

17 and testimony are inadmissible under Fed. R. Evid. R. 403.

18

C. David Blankenhorn 19

1. Mr. Blankenhorn is Not Qualified to Offer an Expert Opinion in this Case 20
Proponents submit David Blankenhorn as an expert on “issues of family policy and family

21 well-being with a particular focus on the institution of marriage.” (Blankenhorn Expert Report

22 (“Blankenhorn Rep.”) 1.) Mr. Blankenhorn considers himself to be an expert on marriage,

23 fatherhood and family structure. (Blankenhorn Dep. 116:8-22, November 3, 2009.) But none of Mr.

24 Blankenhorn’s undergraduate or graduate course work focused on any of these issues. Indeed, he did

25 not take any courses in anthropology, psychology, child welfare or sexual orientation. (Id. at 19:18-

26 22; 22:6-17; 24:18-22.) Rather, his undergraduate course work was focused on labor history, and his

27 masters thesis researched the comparative contributions of two British cabinetmakers’ trade unions

28

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1 “in shaping the emergence of the British working people.” (Id. at 20:3-9; 23:11-24:17.) Other than

2 his bachelors and masters work focused on labor history, Mr. Blankenhorn has no other academic

3 training. (Id. at 25:6-11.) He does not have a Ph.D. (Id.) His claim to “expertise” in the areas in

4 which he seeks to testify is based on nothing more than his work with the Institute for American

5 Values and his “continuing anthropological, historical and cultural study of the institution of

6 marriage.” (Id. at 30:1-6; 54:3-15.) This “study” consists of “reading and reflecting on the texts in

7 the field” and “discussions with other scholars.” (Id. at 54:3-15.) He has never published any work

8 in any peer-reviewed journal; most of his published work is produced by his organization, the

9 Institute for American Values. (Id. at 55:19-56:14.) In short, Mr. Blankenhorn has no expertise in

10 any relevant academic field and is not qualified to serve as an expert under Federal Rule of Evidence

11 104.

12

2. Mr. Blankenhorn Has No Relevant Opinions to Offer

13

It is not at all clear what relevance Mr. Blankenhorn’s self-described “personal” views on

14 marriage and family have to the specific factual issues in this case. (Id. at 92:20-93:2.) Mr.

15 Blankenhorn has not reviewed the Complaint in this action. (Id. at 74:12-18.) He is not offering any

16 opinions about the actual motivation of voters or official proponents in passing Prop. 8. (Id. at 84:15-

17 85:2.) Indeed, he does not mention either Prop. 8 or the state of California in his report. (See

18 generally Blankenhorn Rep.; see also Blankenhorn Dep. 76:13-17; 77:21-78:2; 89:21-90:18.) In

19 these circumstances, Mr. Blankenhorn is incapable of tying his proffered testimony to the facts of the

20 case, and any testimony he might give would be irrelevant to the issues in this case. See Daubert,

21 509 U.S. at 591 (holding expert testimony must be sufficiently tied to the facts of the case such that it

22 will “assist the trier of fact to understand the evidence or to determine a fact in issue” to be

23 admissible).

24

3. Mr. Blankenhorn’s Conclusions Are Not Based on a Discernible

Methodology and are Unreliable 25

Given the lack of Mr. Blankenhorn’s expert qualifications, it is not surprising that his

26

conclusions are based on no objective data or discernible methodology, and that there are numerous

27

inconsistencies in his testimony. In his report, Mr. Blankenhorn states that “[a]s an intellectual

28

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1 matter, whether or not to grant equal marriage rights to gay and lesbian persons depends importantly

2 on one’s answer to the question, ‘What is marriage?’” (Blankenhorn Rep. 3.) He then groups

3 quotations taken from a number of sources into two categories – those quotations he believes support

4 the argument that “marriage is fundamentally a private adult commitment” and those that support the

5 argument that “marriage is fundamentally a pro-child social institution.” (Blankenhorn Rep. 3–11.)

6 Although he acknowledges that it is not possible to demonstrate empirically that the view that

7 marriage is fundamentally a “pro-child” social institution is the only valid view (Blankenhorn Rep.

8 11), Mr. Blankenhorn nonetheless asserts that it is possible to demonstrate that that view is

9 “consistent with much of the most respected scholarship of the modern era” and “widely embraced by

10 intelligent, fair-minded leaders and citizens of good will.” (Blankenhorn Rep. 11.) He then argues

11 that marriage as an institution focuses on “bringing together the male and female of the species into a

12 common life” (Blankenhorn Rep. 12) “because humans favor the survival and success of the human

13 child.” (Id. at 13.) To support this claim, Mr. Blankenhorn again lists several pages of quotations

14 taken from various selected articles and reports. (Id. at 13-15.) This list of quotations, together with

15 Mr. Blankenhorn’s personal views, are the sole basis for his conclusion that “[i]f human beings were

16 not sexually embodied creatures who everywhere reproduce sexually and give birth to helpless,

17 socially needy offspring who remain immature for long periods of time and who therefore depend

18 decisively on the love and support of both of the parents who brought them into existence, the world

19 almost certainly would not include the institution of marriage.” (Blankenhorn Rep. 15; Blankenhorn

20 Dep. at 105:16-106:9.) Indeed, this type of testimony embodies the very type of expert testimony

21 prohibited in General Electric v. Joiner, 522 U.S. at 146.

22

In a nutshell, Mr. Blankenhorn’s conclusion is that the primary purpose of marriage is to

23 insure that children receive love and support from their biological parents. But that conclusion is

24 unsupported by logic – let alone data or research. Mr. Blankenhorn admits that the law governing

25 who can marry does not inquire into the motivation of those individuals to marry – procreative or

26 otherwise. (Blankenhorn Dep. 174:19-190:2; 189:17-190:2.) Indeed, he acknowledges that people

27 who cannot procreate at all are still allowed to marry, as are people who have had children previously

28 and abandoned them. (Id. at 189:17-190:2;195:4-199:17.) He also admits that a lesbian or gay

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1 couple that adopts a child is no less attentive or loving or caring toward their children than a

2 heterosexual couple. (Id. at 211:8-21.) Indeed, in a situation in which biological parents do not want

3 a child, he is not opposed to a gay or lesbian couple adopting that child. (Id. at 231:6-22.)

4

Although Mr. Blankenhorn “personally” opposes marriage of same-sex couples on these

5 grounds (id. at 92:20-93:2), he relies on no discernible methodology to support his views. Indeed, he

6 summarizes the process through which he arrived at these views for purposes of this litigation as

7 devoting “some days and weeks to reading and trying to organize my thoughts and trying to refresh

8 my recollection about other previous work that I have done.” (Id. at 116:8-22.) He has expressly

9 disclaimed relying on anything more rigorous to form his opinion in this case (id. at 105:16-106:9)

10 and admits he has not even read all of the “materials considered” listed in his expert report in their

11 entirety. (Id. at 110:8-22.) Despite Mr. Blankenhorn’s thesis that marriage confers advantages on

12 children biologically related to both parents in the marriage, in his deposition, he could not provide

13 the name or authors of any published studies that compare one family where both parents have a

14 biological connection to the child and a family where one or both parents is not biologically

15 connected to the child. (Id. at 267:5-272:16.) And he admits that he certainly did not consider any

16 such study in assembling his report. Id. Similarly, he is aware of no studies supporting the view that

17 children raised from birth by gay or lesbian couples have any worse outcomes than those raised by

18 biological different sex parents. (Id. at 272:17-21.) He candidly admits that allowing a same-sex

19 couple with children to marry would likely be beneficial for both the couple and their children. (Id.

20 at 282:21-283:10.)

21

Mr. Blankenhorn also purports to offer the opinion that marriage of gay and lesbian

22 individuals will “deinstitutionalize” marriage, transforming it “from a pro-child social institution into

23 a post-institutional private relationship.” (Blankenhorn Rep. 22.) Of course, Mr. Blankenhorn’s

24 conclusion on this point is built on his argument that marriage is a “pro-child institution” and, as

25 explained above, he has no reliable methodology or basis to support that conclusion. Moreover, Mr.

26 Blankenhorn admits that the “deinstitutionalization” of marriage was occurring long before marriage

27 of gay and lesbian individuals was legalized in any jurisdiction. (Blankenhorn Dep. 293:21-294:13.)

28 Indeed, he identifies the primary drivers of the phenomenon as: “divorce, out of wedlock

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1 childbearing and nonmarital cohabitation,” not marriage between people of the same-sex. (Id. at

2 288:13-290:2.)

3

Mr. Blankenhorn lists “nineteen specific answers” to the question of the potential harms he

4 believes will result from allowing gay and lesbian individuals to marry. (Blankenhorn Rep. 22-24.)

5 But these “answers” can hardly constitute reliable expert testimony. The list is taken word for word

6 from his book Future of Marriage with the exception that five “answers” in the book were omitted.

7 (Blankenhorn Dep. 314:2-315:11.) But Mr. Blankenhorn did not develop the list in either Future of

8 Marriage or his report. Rather, the list represents Mr. Blankenhorn’s “report” on the results of a 9 “group thought experiment” in which the list was developed by a group of anonymous4 individuals

10 who met in three one-day sessions. (Id. at 315:12-316:10; 318:6-18.) The “methodology” employed

11 by the group to generate the list consisted of writing ideas voiced by members of the group on

12 chalkboards and poster paper over the course of these three meetings. (Id. at 316:21-317:16; 320:10-

13 14; 320:21-321:3; 322:1-6.) This is a far cry from what courts in this Circuit and elsewhere have

14 required to constitute a reliable methodology on which to base expert testimony and conclusions.

15 See, e.g., Domingo, 289 F.3d at 607 (“reasoning between steps in a theory must be based on

16 objective, verifiable evidence and scientific methodology of the kind traditionally used by experts in

17 the field”). Indeed, it would be impossible to even apply, much less evaluate, the factors courts

18 generally consider in evaluating the reliability of the expert’s methodology because Mr.

19 Blankenhorn’s “group thought experiment” is based on no methodology at all. See Daubert II, 43.

20 F.3d at 1319 (“experts must explain precisely how they went about reaching their conclusions”);

21 Mukhtar, 299 F.3d at 1063 (“the trial judge must ensure that ‘junk science’ plays no part in the

22 decision”); Jinro Am. Inc., 266 F.3d at 1006 (excluding “impressionistic generalizations”).

23

4. Mr. Blankenhorn’s Testimony Would Waste Time and Create Confusion

and is thus Inadmissible Under Federal Rule of Evidence 403 24

Mr. Blankenhorn possesses no expertise in any relevant academic field. He does not offer

25

opinions relevant to the specific facts in dispute, and his conclusions do not even approach the

26

27 4 Mr. Blankenhorn refused to identify the participants in the “group thought experiment” when

28

asked to do so at his deposition. (Blankenhorn Dep. 334:21-335:21.)

Gibson, Dunn & Crutcher LLP

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1 requirements for reliable expert testimony under the Federal Rules of Evidence. Because inclusion of

2 his testimony and conclusions would provide no benefit to the Court and, indeed, is likely to waste

3 time and confuse the issues in this case, this Court should find Mr. Blankenhorn’s testimony

4 inadmissible.

5

IV. THE COURT SHOULD EITHER EXCLUDE THE TESTIMONY OF THESE

PROPOSED EXPERTS BEFORE TRIAL OR REJECT SUCH TESTIMONY AFTER

6

EXPLORING THEIR QUALIFICATIONS DURING TRIAL

7

For the reasons set forth above, Plaintiffs and Plaintiff-Intervenor believe that this Court

8 properly could exclude the reports and testimony of Katherine Young, Loren Marks, and David

9 Blankenhorn in advance of trial and bar Proponents from calling them as witnesses. Even in a bench

10 trial, this Court may exclude the expert testimony in limine if it wishes, as the “trial judge acting as

11 trier of fact ‘has broad discretion to admit or exclude’ expert testimony that is helpful to its decision.”

12 CFM Comm., LLC v. Mitts Telecasting Co., 424 F. Supp. 2d 1229, 1234 (E.D. Cal. 2005) (citing

13 Beech Aircraft, 51 F.3d at 842 (holding that the court properly excluded from a bench trial expert

14 opinion concerning what could be heard in a tape recorded conversation because the trial judge was

15 in a better position to make that determination)).

16

However, if the Court determines that it would be appropriate to explore these experts’

17 qualifications during trial, see Kumho Tire, 526 U.S. at 142; Verduzco, 373 F.3d at 1032; United

18 States v. Alatorre, 222 F.3d 1098, 1103–1104 (9th Cir. 2000), Plaintiffs and Plaintiff-Intervenor are

19 willing to defer any decision on their motion until after the Proponents’ Proposed Experts offer full

20 testimony via direct and cross examination. This approach is commonly used in bench trials because

21 the Court is both the “gatekeeper” and the finder of fact. See, e.g., Volk v. United States, 57 F. Supp.

22 2d 888, 896 n.5 (N.D. Cal. 1999) (noting that the Daubert gatekeeping obligation may be less

23 pressing in connection with a bench trial and the court may properly consider Daubert challenges

24 either in limine or at trial); Laconner Assoc. Ltd. Liab. Co. v. Island Tug & Barge Co., 2008 WL

25 2077948, at *2 (W.D. Wash. May 15, 2008) (reserving ruling on admissibility of expert testimony

26 until after vigorous cross examination and presentation of contrary evidence); Fechtig v. Sea Pac.

27

28

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1 Inc., 2006 WL 2982148 (N.D. Cal. 2006) (rejecting expert’s theoretical conclusions after hearing 2 expert testimony and determining what weight to give the testimony).5

3

V. CONCLUSION

4

For the reasons set forth above, Plaintiffs and Plaintiff-Intervenor request that the Court find

5 that the expert testimony of Katherine Young, Loren Marks, and David Blankenhorn is inadmissible

6 at trial, or accord such testimony little or no weight. Plaintiffs and Plaintiff-Intervenors leave to this

7 Court’s discretion whether it wishes to exclude the testimony in advance of the bench trial in this

8 matter or to do so after exploring each witness’ qualifications on the witness stand.

9 //

10 //

11 //

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5 In so doing, Plaintiffs and Plaintiff-Intervenor do not waive the objections set forth in this

27

motion by their participation in examination of Proponents’ Proposed Experts. See, e.g.,

Jones v. United States, 127 F.3d 1154, 1156 (9th Cir. 1997) (noting that after two week bench

28

trial, trial court granted Plaintiff’s Daubert motion in limine to exclude expert).

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1

Respectfully Submitted,

2 DATED: December 7, 2009 3 4 5 6 7

GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson Theodore J. Boutrous, Jr. Christopher D. Dusseault Ethan D. Dettmer Matthew D. McGill Amir C. Tayrani Sarah E. Piepmeier Theane Evangelis Kapur Enrique A. Monagas

8

By:

/s/

9

Theodore B. Olson

10

and

11

BOIES, SCHILLER & FLEXNER LLP

David Boies

12

Jeremy M. Goldman

Roseanne C. Baxter

13

Richard J. Bettan

Beko O. Richardson

14

Theodore H. Uno

15

Attorneys for Plaintiffs

KRISTIN M. PERRY, SANDRA B. STIER,

16

PAUL T. KATAMI, and JEFFREY J. ZARRILLO

17 DENNIS J. HERRERA

18

City Attorney

THERESE M. STEWART

19

Chief Deputy City Attorney

DANNY CHOU

20

Chief of Complex and Special Litigation

RONALD P. FLYNN

21

VINCE CHHABRIA

ERIN BERNSTEIN

22

CHRISTINE VAN AKEN

MOLLIE M. LEE

23

Deputy City Attorneys

24

25

By:

/s/

Therese M. Stewart

26 Attorneys for Plaintiff-Intervenor

27

CITY AND COUNTY OF SAN FRANCISCO

28

Gibson, Dunn & Crutcher LLP

23
09-CV-2292 VRW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE PROPOSED EXPERTS YOUNG, MARKS, AND BLANKENHORN
ER 119

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1

ATTESTATION PURSUANT TO GENERAL ORDER NO. 45

2

Pursuant to General Order No. 45 of the Northern District of California, I attest that

3 concurrence in the filing of the document has been obtained from each of the other signatories to this

4 document.

5

By:

/s/

6

Theodore B. Olson

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Gibson, Dunn & Crutcher LLP

24
09-CV-2292 VRW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE PROPOSED EXPERTS YOUNG, MARKS, AND BLANKENHORN
ER 120

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Exhibit 2
ER 121

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Loren Dean Marks

Washington, DC

1
October 30, 2009

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3 KRISTIN M. PERRY, et al., )

4

Plaintiffs, )

5

v.

) No. 09-CV-2292 VRW

6 ARNOLD SCHWARZENEGGER, in )

7 his official capacity as )

8 Governor of California, )

9 et al.,

)

10

Defendants. )

11

12

Washington, D.C.

13

Friday, October 30, 2009

14 Deposition of LOREN DEAN MARKS, called for

15 examination by counsel for Plaintiffs in the

16 above-entitled matter, the witness being duly sworn

17 by CHERYL A. LORD, a Notary Public in and for the

18 District of Columbia, taken at the offices of COOPER

19 & KIRK PLLC, 1523 New Hampshire Avenue N.W.,

20 Washington, D.C., at 9:31 a.m., and the proceedings

21 being taken down by Stenotype by CHERYL A. LORD, RPR,

22 CRR.

ER 122

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Loren Dean Marks

Washington, DC

7
October 30, 2009

1 Dunn & Crutcher, for the plaintiffs.

2

MS. KATSUR: Melanie Katsur, of Gibson

3 Dunn & Crutcher, also for the plaintiffs.

4

MS. BERNSTEIN: Erin Bernstein, for

5 plaintiff intervenor, city and county of San

6 Francisco.

7

MR. THOMPSON: David Thompson, of Cooper &

8 Kirk, for the defendant intervenors.

9

THE WITNESS: Loren Dean Marks.

10

11 Whereupon,

12

LOREN DEAN MARKS

13 was called as a witness by counsel for Plaintiffs,

14 and, having been duly sworn by the Notary Public, was

15 examined and testified as follows:

16

17

EXAMINATION BY COUNSEL FOR PLAINTIFF

18

BY MR. McGILL:

19

Q. Thank you for joining us today, Dr. Marks.

20

Would you please state your full name for

21 today's record.

22

A. Yes.

ER 123

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Loren Dean Marks

Washington, DC

53
October 30, 2009

1

A. The way that I just used, expert, was in

2 connection with the -- the lay audience with the

3 general population.

4

Q. As of approximately what date do you

5 believe that you became an expert?

6

MR. THOMPSON: Objection to the extent it

7 calls for a legal conclusion.

8

A. In connection with this -- this expert

9 report, the first one, in -- in academia generally,

10 once -- once one has achieved tenure, that would be a

11 widely accepted benchmark, not just landing a first

12 job or receiving a Ph.D. degree, but achieving tenure

13 would be a significant landmark.

14

I think that's -- that's as good as most.

15 Still inadequate, probably.

16

BY MR. McGILL:

17

Q. And do I remember correctly that you

18 became a tenured professor about -- was it June of

19 2008 that you said?

20

A. June of 2008.

21

Q. Do you consider yourself to be an expert

22 in your areas of primary research interest?

ER 124

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Loren Dean Marks

Washington, DC

54
October 30, 2009

1

A. In the areas of faith and families and

2 specifically strong African American families, yes,

3 yes, I would.

4

Q. Are you an expert in child adjustment?

5

MR. THOMPSON: Objection, vague.

6

A. Child adjustment is one of -- again one of

7 the many, many areas that I'm responsible for knowing

8 something about.

9

Is it one of my focal interest areas?

10

No, it is not.

11

BY MR. McGILL:

12

Q. But you still consider yourself to be an

13 expert in child adjustment?

14

A. By the standards of my field, I don't

15 study the specific concept of child adjustment. I do

16 study child outcomes at some length, and family

17 outcomes.

18

Q. And you would not have contended in --

19 earlier than your date of being a tenured professor

20 that you were an expert in any field, would you?

21

MR. THOMPSON: Objection, mischaracterizes

22 the testimony.

ER 125

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Loren Dean Marks

Washington, DC

58
October 30, 2009

1 generally.

2

BY MR. McGILL:

3

Q. Am I correct that you have never conducted

4 any original research on families headed by lesbian

5 or gay parents?

6

A. Yes.

7

Q. Do any of your published writings or

8 articles in press discuss children raised by lesbian

9 or gay parents?

10

A. No, Mr. McGill, I don't believe they do

11 one way or the other, meaning positively or

12 negatively.

13

Q. Are there any other qualifications

14 that you have that we have not discussed that relate

15 to your opinion as you've set it forth in your

16 report?

17

A. In the expert report -- that's a broad

18 question.

19

None come to mind at the moment that

20 directly bear on it, but there -- there may be.

21

Q. When were you retained as an expert?

22

A. Mr. Thompson contacted me by phone in

ER 126

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Loren Dean Marks

Washington, DC

69
October 30, 2009

1 definition, any reasonable social scientist is going

2 to admit that there are differences of

3 interpretation.

4

Certainly Dr. Lamb and I would agree on

5 that point, I think.

6

BY MR. McGILL:

7

Q. You mentioned Dr. Lamb.

8

Is he an authority in his field?

9

MR. THOMPSON: Objection, vague.

10

A. He is.

11

BY MR. McGILL:

12

Q. Would you consider him an expert in his

13 field?

14

MR. THOMPSON: Objection to the extent it

15 calls for a legal conclusion.

16

A. I would.

17

BY MR. McGILL:

18

Q. Let us at last turn to your actual report.

19

Could you please turn to paragraph 42,

20 which appears on page 10 of what has been marked as

21 exhibit 2.

22

There you state: Based on available

ER 127

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Loren Dean Marks

Washington, DC

275
October 30, 2009

1 my earlier statement that I also have taken upon me

2 the burden of challenge. This is -- you know,

3 scholarship is about strengths and challenges, not

4 just dogmatically presenting one.

5

Q. When is the first time you held the belief

6 that the ideal family structure is marriage between a

7 man and a woman and a child biologically related to

8 each?

9

MR. THOMPSON: Objection, relevance.

10

A. Mr. McGill, I don't know. I don't know

11 how to answer that question.

12

BY MR. McGILL:

13

Q. Is it -- is it fair to say that you held

14 that view, you held that belief before your

15 engagement as an expert in this case?

16

A. Yes.

17

Q. Is it fair to say you held that belief

18 before you received your Ph.D. degree?

19

A. Yes.

20

Q. Did you hold that belief before you

21 graduated from college?

22

A. Yes.

ER 128

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Loren Dean Marks

Washington, DC

October 30,2009

1

MR. McGILL: Thank You-

Page 280

z

As Melanie wrote to me, "you are done. "

J

THE VIDEOGRAPHER: This concludes the

4 deposition of Dr. Loren Marks. The time is now 6:18

5 PM. The total númber of videotapes used were l.

6

Thank you.

l

(Whereupon, at 6: 18 P.m. , the taking of

B the instant deposition ceased. )

9

l_0
Lr

L2

1_3

Signature of the Witness

1-4
1_5 SUBSCRIBED AND SWORN to before me this a.(tJ¿y'u daY of

L6

Å/0,,,r*á,,<,

20 01

1-1

1B

1-9

20

Notary Public

2T
22 My Commission L!^avrn,r.i!r=a"c'ff.i

THERESA TT{OONEY
Notary Pubtic #10120
East Baton Rouge Parlsh
Louisiana Llfetime Gommisslon

ER 129

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Loren Dean Marks

Washington, DC

281
October 30, 2009

1

CERTIFICATE OF COURT REPORTER

2 UNITED STATES OF AMERICA )

3 DISTRICT OF COLUMBIA

)

4

I, CHERYL A. LORD, the reporter before

5 whom the foregoing deposition was taken, do hereby

6 certify that the witness whose testimony appears in

7 the foregoing deposition was sworn by me; that the

8 testimony of said witness was taken by me in machine

9 shorthand and thereafter transcribed by

10 computer-aided transcription; that said deposition is

11 a true record of the testimony given by said witness;

12 that I am neither counsel for, related to, nor

13 employed by any of the parties to the action in which

14 this deposition was taken; and, further, that I am

15 not a relative or employee of any attorney or counsel

16 employed by the parties hereto, or financially or

17 otherwise interested in the outcome of this action.

18

19

CHERYL A. LORD

20

Notary Public in and for

21

the District of Columbia

22 My Commission expires April 30, 2011

ER 130

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

SUPPLEMENTAL DECLARATION OF MICHAEL LAMB, PH.D. IN SUPPORT OF PLAINTIFFS’ COMBINED OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANT SANDOVAL, DEFENDANT GLOVER, AND DEFENDANTINTERVENOR COALITION FOR THE PROTECTION OF MARRIAGE

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 131

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1

I, Michael Lamb, Ph.D., hereby declare and state as follows:

2

1. I am a Professor of Psychology in the Department of Psychology at the University

3 of Cambridge in the United Kingdom. I have actual knowledge of the matters stated in this

4 declaration and could and would so testify if called as a witness.

5

2. On June 24, 2011, I submitted my expert declaration in this matter, which set forth

6 my relevant background and experience (my “Original Declaration,” Dkt. 86-3, Pltfs’ Appendix

7 at 314-454), and attached my curriculum vitae and a list of my publications from the last 10 years

8 as Exhibits A and B respectively.

9

3. That Original Declaration set forth the principal opinion that I am offering in this

10 case: that children and adolescents raised by same-sex parents are as likely to be well-adjusted as 11 children raised by heterosexual parents, including those children’s “biological” parents.1

12

4. I have read the relevant portions of the Motion for Summary Judgment and

13 Memorandum in Support filed by Defendant-Intervenor Coalition for the Protection of Marriage

14 (“Coalition”), Dkt. 72. More specifically, the text on pages 16 through 24 of the Coalition’s

15 memorandum asserts that children are best adjusted when raised by co-resident married mothers

16 and fathers who are their biological parents, Dkt. 72 at 16-24 (described as “bionormativity”);

17 that children conceived through assisted reproductive technology experience poorer outcomes,

18 Dkt. 72 at 17; and that recent papers in this field undermine the conclusion that the children of

19 lesbians and gay men have equally good outcomes as children raised by married heterosexual

20 couples, Dkt. 72 at 21-22. I submit this further declaration in order to respond to these

21 statements, which are neither correct nor credible. I also have reviewed the materials the

22 Coalition cited in this portion of its brief and submitted in its Appendix in Support of the

23 Coalition’s Motion for Summary Judgment.

24

5. In my Original Declaration, I already offered testimony rebutting a number of the

25 sources the Coalition cites in its memorandum, and I will not repeat that testimony in full here.

26 See Dkt. 86-3 at 11-13, Pltfs’ Appendix at 324-26 (discussing Mark Regnerus, How different are

27 1 All cites in this supplemental declaration that appear in shortened form refer to articles cited in

28

the Bibliography attached as Exhibit B to my Original Declaration. Dkt. 86-3, Pltfs’ Appendix at 444-454. All new sources appear in full citation form.

- 2 -
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1 the adult children of parents who have same-sex relationships? Findings from the New Family

2 Structures Study, Social Science Research 41 (2012) 752–70); Dkt. 86-3 at 14 n.6, Pltfs’

3 Appendix at 327 (discussing Loren D. Marks, Same-Sex Parenting and Children’s Outcomes: A

4 Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay

5 Parenting, 41 Soc. Sci. Research 735, 748 (2012)); Dkt. 86-3 at 10 n.1, Pltfs’ Appendix at 323

6 (discussing David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood

7 and Marriage are Indispensable for the Good of Children and Society (1996)); Dkt. 86-3 at 16

8 n.7, Pltfs’ Appendix at 329 (discussing Kristen Anderson Moore, et al., Marriage from a Child’s

9 Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child

10 Trends Research Br. (June 2002)).

11

6. As described further below, none of the additional materials submitted by the

12 Coalition substantively question the conclusion in my Original Declaration that children and

13 adolescents raised by same-sex parents are as likely to be well-adjusted as children raised by

14 different-sex parents, including biological parents, because they do not provide empirical

15 evidence in support of the claims they make. None of the Coalition’s sources provide any basis

16 for questioning the robust research in the field that consistently shows equally good outcomes for

17 children of gay and heterosexual parents.

18

A. There is no reliable social science research showing that heterosexual parents

who are biologically related to their children are superior to other parents. 19

20

7. The Coalition argues that the ideal family structure for children comprises a

21 married mother and father who are the biological parents of their children. See, e.g., Dkt. 72 at

22 19. As support for this claim, it cites certain publications reporting that children raised in

23 continuously intact households fare better on average than children raised in single-parent

24 households, divorced households, and step-families. These publications are consistent with the

25 opinions in my Original Declaration, and do not support conclusions either that parents who are

26 genetically linked to their children are inherently superior to other parents, or about the parenting

27 abilities of same-sex couples.

28

8. As I testified in my Original Declaration, advocacy groups that oppose parenting

- 3 -
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1 by same-sex couples sometimes cite research showing the risk of maladjustment associated with

2 divorce, transitions to single-parent or step-family life, or being raised in one-parent families to

3 support their claim that youths need both heterosexual mothers and fathers. Dkt. 86-3 at 15-16,

4 Pltfs’ Appendix 328-29. However, this research does not explore the effect of parental sexual

5 orientation or gender, and therefore does not allow for any conclusions to be reached about the

6 adjustment of children with same-sex parents.

7

9. Several of the conclusions cited by the Coalition involve these types of logical

8 errors, including for example, (i) Institute for American Values, Why Marriage Matters: Thirty

9 Conclusions from the Social Sciences (Third Edition 2011); (ii) Kristen Anderson Moore, et al.,

10 Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What

11 Can We Do about It, Child Trends Research Br. (June 2002); (iii) Elizabeth Wildsmith, et al.,

12 Childbearing Outside of Marriage: Estimates and Trends in the United States, Child Trends

13 Research Br. (2011); (iv) Samuel W. Sturgeon, The Relationship Between Family Structure and

14 Adolescent Sexual Activity, familyfacts.org, Special Report, At a Glance (Nov. 2008); and (v)

15 Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional

16 Well-Being of the Next Generation, 15 The Future of Children 75-96 (2005). While these sources

17 discuss a range of risk factors for couples and their children, such as the ones discussed above,

18 not one of them expressly discusses same-sex parents or their children. As such, no conclusions

19 can be drawn from them about the quality of parenting by lesbian and gay parents. Instead, such

20 publications suggest that, all other things being equal, children and adolescents with same-sex

21 parents, like their peers, likely would benefit if their parents could marry and solidify their family

22 and parental ties.2

23

2 For example, the U.S. Department of Health and Human Services, Administration for Children & Families, Distribution of Abuse and Neglect by Family Characteristics, report cited by the

24

Coalition is misrepresented by the Coalition in a similar way. The article compares families that it describes as those headed by (i) “married biological parents,” (ii) “other married parents (not

25

both biological but both having a legal parental relationship to the child),” as well as (iii) other family forms, such as single parents. Coalition’s Appendix at 658. However, those “other

26

married parents” includes step-families where children are at a higher risk for adverse outcomes for reasons explained in my Original Declaration (i.e., these children may have endured parental

27

conflict and separation, as well as related dislocations and abandonment by parents, and the stepparents may have entered their lives relatively late, adversely affecting the quality of the

28

relationships). One would not expect to see these difficulties in families formed by same-sex couples who jointly plan to marry and have children. Further, as discussed in my Original

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1

10. As for the Coalition’s assertion that biological parenthood is superior, there is high

2 quality social science research exploring possible associations between genetic linkages and

3 measures of children’s adjustment and development. Specifically, when children are conceived

4 using assisted reproductive technologies, they may be genetically linked to their mothers but not

5 their fathers (e.g., sperm donation), to their fathers but not their mothers (e.g., egg donation), or to

6 neither mothers nor fathers (e.g., embryo donation). Research has consistently showed that 7 children conceived in these ways develop well.3 The research also consistently shows that

8 individuals conceived via assisted reproductive technology also function well throughout the 9 lifespan, including adolescence4 and adulthood.5 Research on adopted children, who are not

10 genetically related to the parents who rear them, also shows that the majority benefit from

11 adoption, although some are psychologically affected by adverse earlier experiences (including 12 prenatal experiences, such as prenatal exposure to drugs or alcohol).6 In summary, well-designed,

13 high quality research that is directly relevant to the issue of genetic relatedness clearly shows that

14 children may thrive psychologically whether or not they are genetically linked to the parents who

15 rear them. Unfortunately, the Coalition’s brief ignores this body of research entirely.

16

11. The Coalition cites a report issued by the advocacy organization Institute for

17 American Values called “Daddy’s Name is Donor.” This report, which is based on an online

18 survey, purports to show poorer child outcomes among children conceived by way of sperm and

19 egg donation. Dkt. 72 at 17. It is hard to understand how purported concerns about the well-

20 being of children conceived via egg or sperm donation are relevant to the question of whether

21 same-sex couples ought to be excluded from marriage, given that – as this report acknowledges –

22 the vast majority of donor-conceived children are born into heterosexual parent families. Indeed,

23 Declaration, the consensus within the field is that processes within the family (as opposed to

24

family structures) are the best predictors of child and adolescent outcomes. 3 See, e.g., Lamb, 2012; Golombok, Murray, Jadva, Lycett, MacCallum & Rust, 2006; Golombok,

25

Tasker & Murray, 1997; MacCallum, Golombok & Brinsden, 2007; and MacCallum & Keeley, 2008. See also Golombok, S. (2013) (in press). Families created by reproductive donation.

26

Child Development Perspectives. 4 See, e.g., MacCallum & Golombok, 2004; Owen & Golombok, 2009; and Scheib, Riordan &

27

Rubin, 2005. 5 See, e.g., Golombok & Badger, 2010.

28

6 See, e.g., Grotevant, van Dulmen, Dunbar, Nelson-Christinedaughter, Christensen, Fan & Miller, 2006; Juffer & van Dzendoorn, 2005, 2007.

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1 in this report, only a small fraction of the respondents were raised by lesbian parents. In any case,

2 as discussed above, the research on donor-conceived children that has been published in scientific

3 journals after being subjected to the peer review process shows that these children are developing 4 normally.7

5

B. The Coalition’s claim that children fare better with different-sex parents is

not supported by the science, which uniformly shows that children of same-

6

sex parents are equally well-adjusted.

7

12. The Coalition claims that social scientists view child-rearing by married

8 heterosexual parents as optimal for children (see, e.g., Dkt. 72 at 21), but cites no reliable studies

9 to support that proposition. To the contrary, the Coalition relies here and throughout its briefing

10 about childrearing (Dkt. 72 at 16-22) primarily on sources taken out of context that do not support

11 the point the Coalition ascribes to them (as described above in paragraph 9, for example), and

12 sources that are not reports of scientific research, but rather are commentaries written by

13 advocates in other professions, such as philosophy and political science. See, e.g., Coalition’s

14 Appendix at 504, 607, and 1078.

15

13. None of the articles the Coalition cites are reliable sources from which to draw

16 accurate conclusions regarding children raised by gay parents. The Coalition also cites articles by

17 Mark Regnerus and Loren Marks, Dkt. 72 at 22 n.48, which, as I explained in my Original

18 Declaration, do not support the conclusions their authors offer. See Dkt. 86-3 at 11-13, Pltfs’

19 Appendix 324-26 (discussing Regnerus); Dkt. 86-3 at 14 n.6, Pltfs’ Appendix 327 (discussing

20 Loren D. Marks).

21

14. Contrary to Marks’s claims, research on child-rearing by lesbians and gay men

22 meets established standards in the field and has produced reliable conclusions consistent with the

23 wider body of research on parent-child relationships. As I mentioned previously, Marks

24 published his article in 2012, but limited his review of the literature on children raised by lesbian

25 and gay parents to studies through 2005, rendering his analysis incomplete and outdated.

26 Furthermore, Marks failed to recognize that studies published prior to and after 2005 have

27 consistently shown that children raised by gay and lesbian parents are as likely to be well-

28 7 Golombok, 2013.

- 6 -
ER 136

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1 adjusted as children raised by heterosexual parents. As described in my Original Declaration, the

2 body of research specific to same-sex parenting represents approximately 30 years of scholarship

3 and the methodologies used in the major studies of same-sex parenting meet the standards for

4 research in the field of developmental psychology and psychology generally. Dkt. 86-3 at 11, 14-

5 15, Pltfs’ Appendix 324, 327-28. Marks fails to acknowledge that research published both 6 before8 and after9 2005 included samples of both lesbian and gay parents from a representative

7 variety of ethnic and economic backgrounds – all confirming that parents’ sexual orientation is

8 not related to children’s adjustment. He also fails to acknowledge that multiple cross-sectional

9 and longitudinal studies have repeatedly revealed no significant differences in the psychological

10 adjustment of children and adolescents raised by lesbian or gay parents as opposed to

11 heterosexual parents, regardless of the methods, measures, mode of recruitment, characteristics of

12 the families, and sizes of the samples.

13

15. Relying on flawed sources such as these, as well as on a number of opinion pieces

14 that ignore the empirical evidence, the Coalition thus fundamentally mischaracterizes the

15 scientific consensus which, as more fully summarized in my Original Declaration, is that the

16 children of same-sex and different-sex parents are equally likely to be well-adjusted. Dkt. 86-3 17 (see extended bibliography attached as Exhibit B).10

18

16. The conclusion stated in my Original Declaration – that it is beyond scientific

19 dispute that children raised by gay, lesbian, and heterosexual couples are as likely as one another

20 to be well-adjusted because it is the quality of parenting and parent-child relationships, the quality

21 8 See, e.g., Wainright et al. (2004).

22

9 See, e.g., Wainright & Patterson (2006, 2008); Rosenfeld (2010). 10 Nor should one be misled by the Coalition’s submission about the consensus among national

23

child welfare organizations on this issue. As described in my Original Declaration, Dkt. 86-3 at 13, Pltfs’ Appendix at 326, numerous mainstream medical, mental health and child welfare

24

organizations, including the American Academy of Pediatrics (“AAP”), have issued statements confirming that same-sex parents are as effective as different-sex parents in raising well-adjusted

25

children and adolescents. The AAP, the largest and most prestigious group representing medical practitioners concerned with the health and well-being of children and adolescents, should not be

26

confused with the “American College of Pediatricians,” whose amicus brief the Coalition cites. Coalition’s Appendix at 750. The “American College of Pediatricians,” which was formed in

27

2002, lacks the same broad, inclusive membership, prestige and standing in the medical and child welfare community as the AAP, and lists as an express organizational goal “[t]o promote the

28

basic father-mother family unit as the optimal setting for childhood development.” See “About Us,” American College of Pediatricians, http://www.acpeds.org/About-Us/.

- 7 -
ER 137

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ER 138

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

SUPPLEMENTAL DECLARATION OF LETITIA ANNE PEPLAU, PH.D. IN SUPPORT OF PLAINTIFFS’ COMBINED OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANT SANDOVAL, DEFENDANT GLOVER, AND DEFENDANTINTERVENOR COALITION FOR THE PROTECTION OF MARRIAGE

28

ER 139

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1

I, Letitia Anne Peplau, Ph.D., hereby declare and state as follows:

2

1. I have been retained by counsel for Plaintiffs as an expert in connection with the

3 above-referenced litigation. I have actual knowledge of the matters stated in this declaration and

4 could and would so testify if called as a witness.

5

2. I have already provided a declaration of my opinions in this litigation. A complete

6 explanation of my background, qualifications, expert testimony experience, and compensation

7 appears in my declaration dated August 20, 2012. Dkt. 86-2.

8

3. I have reviewed the Motion for Summary Judgment and Memorandum in Support

9 filed by Defendant-Intervenor Coalition for the Protection of Marriage (“Coalition”). Dkt. 72.

10 Nothing in the motion disproves or contradicts the testimony I offered in my original declaration.

11 I have been called upon to respond to certain assertions made in the motion, including that (1)

12 allowing same-sex couples to marry would harm the institution of marriage and that (2) marriages

13 between same-sex couples are more focused upon love and personal fulfillment and less focused

14 upon duty and responsibility than marriages between different-sex couples. I submit this further

15 declaration in order to respond to these assertions, which are unsupported by, and disproven by,

16 the evidence.

17 I. 18

Allowing Same-Sex Couples to Marry Will Not Harm The Institution of Marriage or Minimize Its Importance in Society.

19

4. The Coalition asserts that allowing same-sex couples would “de-institutionalize

20 the man-woman marriage institution,” and defines “de-institutionalization” as when a “social

21 institution constituted by [previously institutionalized public] meanings and norms disappears.”

22 Dkt. 72 at 3. To the extent that the Coalition contends that allowing same-sex couples to marry

23 would cause the institution of marriage to “disappear” – or to be negatively affected in any way –

24 this is false and misleading.

25

5. Although marriage has changed over the years, it has not disappeared as a social

26 institution. Marriage continues to be held in high esteem by most Americans, and most

27 Americans either have married or would like to marry. See Saad, L. (2006), Americans Have

28 Complex Relationship With Marriage, Gallup News Service, retrieved September 27, 2012 from:

- 2 -
ER 140

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1 http://www.gallup.com/poll/23041/americans-complex-relationship-marriage.aspx. Allowing

2 same-sex couples to marry, as six states and the District of Columbia currently do, certainly has

3 not caused the institution of marriage to cease to exist or to be adversely affected.

4

6. There is no empirical reason to believe that allowing marriage by same-sex

5 couples will lead different-sex couples to abandon the institution of marriage, either by declining

6 to marry or ending their current marriages. To the contrary, institutions are stronger when they

7 have more (rather than fewer) members. Allowing same-sex couples to marry would bring

8 additional people within the institution of marriage who are otherwise denied membership rights.

9 As explained in my original declaration, the factors that cause different-sex couples to marry or

10 divorce and that contribute to relationship quality and stability are well-understood, and they

11 function independently of whether same-sex couples may marry.

12

7. The notion that permitting same-sex couples to marry will cause some

13 heterosexual people – either for religious or moral reasons – to reject marriage as unacceptable or

14 repugnant is also far-fetched and unsupported by anything but conjecture. Even if same-sex

15 couples could marry across the United States, those same-sex couples who married would still

16 constitute a small percentage of all married American couples. It is hard to fathom how this tiny

17 minority would suddenly become the “baseline” for the marriage experience.

18 II. 19 20

Same-Sex Couples Are Similar To Different-Sex Couples; There Is No Support For The Notion That Same-Sex Couples Are More Focused On Love And Personal Fulfillment And Less Focused on Duty and Responsibility Than Different-Sex Couples.

21

8. The Coalition asserts that allowing same-sex couples to marry would “teach[] that

22 marriage is a ‘private relationship between two people created primarily to satisfy the needs of

23 adults’” rather than children. Dkt. 72 at 14. First, it does not make sense to suggest that same-sex

24 couples who want to marry are less focused than different-sex couples on duty and responsibility

25 because, as discussed in my original declaration, marriage itself creates many duties and

26 responsibilities. Same-sex couples who marry are embracing the same responsibilities as

27 different-sex couples who marry. Allowing same-sex couples to marry has no necessary

28 implication for the many rights and responsibilities of spouses, for expectations about trust and

- 3 -
ER 141

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ER 142

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

PLAINTIFFS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 143

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1

Plaintiffs Beverly Sevcik and Mary Baranovich; Antioco Carrillo and Theodore Small;

2 Karen Goody and Karen Vibe; Fletcher Whitwell and Greg Flamer; Mikyla Miller and Katrina

3 Miller; Adele Terranova and Tara Newberry; Caren Cafferata-Jenkins and Farrell Cafferata-

4 Jenkins; and Megan Lanz and Sara Geiger (“Plaintiffs”), by and through their counsel,

5 respectfully request that the Court take judicial notice, pursuant to Rule 201 of the Federal Rules

6 of Evidence, of the following items:

7

(1) Copies of web pages from the website for Defendant Carson City Clerk-Recorder

8

Alan Glover (attached as Exhibit A), retrieved from:

9

a. http://www.carson.org/Index.aspx?page=88;

10

b. http://www.carson.org/Index.aspx?page=87;

11

c. http://www.carson.org/Index.aspx?page=2179; and

12

d. http://www.carson.org/Index.aspx?page=102.

13

(2) A copy of a web page from the website for Defendant Clark County Clerk Diana

14

Alba, retrieved from http://www.clarkcountynv.gov/depts/clerk/Pages/default.aspx

15

(attached as Exhibit B).

16

(3) A copy of excerpted material from the Nevada Secretary of State regarding the

17

results of the 2000 vote on Question 2, retrieved from

18

http://leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/2000.pdf

19

(attached as Exhibit C).

20

(4) A copy of excerpted material from the Nevada Secretary of State regarding the

21

results of the 2002 vote on Question 2, retrieved from

22

http://leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/2002.pdf

23

(attached as Exhibit D).

24

(5) A copy of an excerpt from the Social Security Administration’s (“SSA’s”)

25

Program Operations Manual entitled “PR 02707.031 Nevada,” which was

26

retrieved from the SSA’s Program Operations Manual System at

27

https://secure.ssa.gov/poms.nsf/lnx/1502707031 (attached as Exhibit E).

28

(6) A copy of a web page entitled “Name Changes” from the website for the State of

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1

Nevada, Department of Motor Vehicles, retrieved from

2

http://www.dmvnv.com/namechange.htm (attached as Exhibit F).

3

Federal Rule of Evidence 201(b) provides that a court may judicially notice “a fact that is

4 not subject to reasonable dispute because it: (1) is generally known within the trial court’s

5 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose

6 accuracy cannot reasonably be questioned.” As described below, the attached exhibits all are

7 proper subjects for judicial notice as easily verifiable public records, and as self-authenticating

8 sources pursuant to the Federal Rules of Evidence.

9

Exhibits A, B, E, and F are self-authenticating copies of web pages from official

10 government websites. Exhibits A, B, E, and F consist of print-outs of web pages from the official

11 government websites for Defendants Carson City Clerk-Recorder Alan Glover, Clark County

12 Clerk Diana Alba, the federal Social Security Administration, and Nevada’s Department of Motor

13 Vehicles, respectively. As this Court has recognized, “[i]n this new technological age, official

14 government or company documents may be judicially noticed insofar as they are available via the

15 worldwide web.” In re AgriBioTech Sec. Litig., Case No. CV-S-990144 PMP (LRL), 2000 U.S.

16 Dist. LEXIS 5643, *4-5 (D. Nev. March 2, 2000); see also Simon v. Bank of Am., N.A., Case No.

17 10-cv-00300-GMN-LRL, 2010 U.S. Dist. LEXIS 63480, *15 n.1 (D. Nev. June 23, 2010) (“The

18 Court takes judicial notice of this information provided on the government website.”); Daniels-

19 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (finding it “appropriate” to take

20 judicial notice of information posted on school district websites “as it was made publicly

21 available by government entities” and there was no dispute about its authenticity). Additionally,

22 all of these sources also are appropriate subjects for judicial notice because they are self-

23 authenticating pursuant to Federal Rule of Civil Procedure 902(5) (defining as self-authenticating 24 “[a] book, pamphlet, or other publication purporting to be issued by a public authority.”).1

25

Exhibits C and D are ballot materials issued by the Nevada Secretary of State, and thus

26 are self-authenticating public records. Exhibits C and D are properly subject to judicial notice

27 as official publications of the Nevada Secretary of State that have been archived online by the

28

1

Exhibits A and B also are admissible evidence for an independent reason: they each

qualify as party admissions pursuant to Federal Rule of Evidence 801(d)(2).

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ER 145

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1 Research Division of the Nevada Legislative Counsel Bureau (“Research Division”). See

2 http://leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/index.cfm (webpage of the

3 Research Division archiving Nevada ballot questions since 1942). First, Exhibits C and D should

4 be judicially noticed for all the reasons above, since they also constitute information issued by a

5 government agency through its official website. See also Klein v. Freedom Strategic Partners,

6 LLC, 595 F. Supp. 2d 1152, 1157 (D. Nev. 2009) (“Here, the documents presented by Plaintiffs

7 are capable of accurate and ready determination from the Nevada Secretary of State. Thus, the

8 Court will consider the documents’ contents and their filings.”); Chamness v. Bowen, Case No.

9 CV 11-01479 ODW (FFMx), 2011 U.S. Dist. LEXIS 94876, *10 n.4 (C.D. Cal. Aug. 23, 2011)

10 (taking judicial notice of sample ballots, official voter guides, and official candidate lists because

11 “a court ‘may presume that public records are authentic and trustworthy[]’”), quoting Gilbrook

12 v.City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999).

13

Additionally, Exhibits C and D – just as the Exhibits discussed above – are self-

14 authenticating pursuant to Federal Rule of Civil Procedure 902(5) as “publication[s] purporting to

15 be issued by a public authority.”

16

For the forgoing reasons, Plaintiffs respectfully request that this Court take judicial notice

17 of each of the documents described above and attached as exhibits hereto.

18 DATED: September 10, 2012.
19 Respectfully submitted,
20 /s/ Tara L. Borelli TARA L. BORELLI (pro hac vice)
21 JON W. DAVIDSON (pro hac vice) PETER C. RENN (pro hac vice)
22 SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND
23 EDUCATION FUND, INC.
24
25

CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP

26

27

28

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1

CERTIFICATE OF SERVICE

2 I hereby certify that I have electronically filed the foregoing with the Clerk of the Court
3 for the United States District Court, District of Nevada by using the CM/ECF system on
4 September 10, 2012. All participants in the case are registered CM/ECF users, and will be
5 served by the CM/ECF system.
6

7 By: /s/ Sklar Toy

8

Sklar Toy

3325 Wilshire Boulevard, Suite 1300

9

Los Angeles, CA 90010

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Exhibit A
ER 148

Carson City : The Clerk-Recorder
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City Government » Clerk-Recorder
Alan Glover

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Assessor Board of Supervisors Business Development - The BRIC City Manager's Office Clerk-Recorder
About Us The Clerk-Recorder

Alan Glover, Carson City Clerk-Recorder, is a native of Carson City, attended Carson City schools, and is a graduate of the University of Nevada in Reno. While a senior at the University he was elected to the Nevada State Assembly where he served five terms before being elected to the State Senate. In 1985 Mr. Glover resigned from the Senate and was appointed as the Carson City Recorder. In 1987 the office of Recorder was combined with that of Clerk and Mr. Glover served in that position until 1991 when he went back to private business. In 1994 he was elected Carson City Clerk-Recorder and has served in that capacity since.

Elections Department Marriage Bureau Public Guardian Recording Secretary Recorder

Mr. Glover is a past president of the County Fiscal Officers Association and the Nevada Association of County Clerks and County Election Officials. Mr. Glover is the Ex-Officio Clerk of: the First Judicial District, Board of Supervisors, Board of Equalization and General Obligation Bond Commission, and is Ex-Officio Public Administrator. Mr. Glover also oversees the operations of the Recorders Office, Marriage Bureau, Elections, and Records Management.

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City Government » Clerk-Recorder
About Us

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Assessor Board of Supervisors Business Development - The BRIC City Manager's Office Clerk-Recorder
About Us The Clerk-Recorder Elections Department

The Carson City Clerk-Recorder's mission is multi-faceted. The Clerk is responsible for the creation and maintenance of accurate, accessible, and permanent records of the meeting to the Board of Supervisors and other boards and committees, either authorized by law or created by the Board of Supervisors. This issuance of marriage licenses is a traditional function of the Clerk's Office. The Recorder's Office is responsible for recording documents, providing access to those documents, and collecting real property transfer tax. Records Management is responsible for developing and implementing the records program for Carson City. The Election Department is responsible for the administration of all elections and registration of eligible electors within Carson City.
Last updated date: 5/26/2006 1:41:47 PM

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Sheriff's Office

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Bid Opportunities

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ER 152
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Minister Licensing and Applications

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APPLICATIONS FOR CERTIFICATES OF AUTHORITY TO SOLEMNIZE MARRIAGES

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Getting Married

Chapter 122 of the Nevada Revised Statutes (NRS) governs the issuance of Certificates of Authority to Perform Marriages. According to Chapter 122:
1. You must be a licensed, ordained, or appointed minister or other person authorized to solemnize a marriage in good standing within your church or religious organization;
2. Your church or religious organization must be incorporated, organized or established in this state (except for out-of-state ministers);
3. Your ministry must be one of service to a church or religious organization.
To review Chapter 122, click on NRS which governs marriage and authority to perform marriages.  

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NOTE: NRS 122.064, Subsection 3(c), mandates that"...the county clerk shall, before approving an initial application, satisfy himself that the applicant had not been convicted of a felony, released from confinement or completed his parole or probation, whichever occurs later, within 10 years before the date of the application."

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OBTAINING CERTIFICATION TO PERFORM A MARRIAGE

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To obtain a Certificate of Authority to Perform a Marriage in the State of Nevada, please select the link for the appropriate application.
Permanent Status (PDF) - Resident of Carson City wishing to conduct wedding ceremonies on a continuous basis. Temporary Status (PDF) - Out-of-State applicant for a one-time event.

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CHURCH / RELIGIOUS ORGANIZATION FORMS - to be filled out on behalf of applicant seeking to perform marriages within the State of Nevada.

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ER 153
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Carson City : Minister Licensing and Applications
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Last updated date: 6/8/2011 8:09:11 AM Home - Employment - Municipal Codes - Online Services - Contact Us ©2003-2012 Carson City, Nevada All Rights Reserved. • City Hall: 201 North Carson Street, Carson City, NV 89701
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ER 154
http://www.carson.org/Index.aspx?page=2179[9/8/2012 5:03:22 PM]

Carson City : Marriage Bureau
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Assessor Board of Supervisors Business Development - The BRIC City Manager's Office Clerk-Recorder
About Us The Clerk-Recorder Elections Department Marriage Bureau
Getting Married Common Questions

Welcome to the Carson City Marriage Bureau
To be legally married in the State of Nevada you must purchase a marriage license and have a marriage ceremony. The license fee in Carson City is $75.00.   We accept cash or credit card. A transaction fee of $2.50 will be added to the credit card purchase.
Both parties must appear together at the Courthouse to show identification and to sign the license and application. Before you come in, you may want to fill out the Marriage License Application . The marriage license/application is good for one-year after purchase.
After the wedding ceremony, the marriage certificate needs to be mailed as soon as possible to the Carson City's Marriage Bureau. The document will be recorded and certified then mailed to you. This is included in the $75 fee. Instant Recordings of your marriage certificate are available 6 days a week at no extra charge. Some counties require your certified certificate (legal copy) to be requested separately at a later date. To obtain more information on "Getting Married" click here.

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Purchasing a copy of your marriage certificate If the license was purchased in Carson City, you may obtain a certified copy ($15) of a Recorded Marriage Certificate. Please allow 2 weeks for your copy(s) to arrive. All orders are returned via U.S. Postal Service.

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By Mail: Complete a request form (PDF) and mail to Carson City Marriages, 885 E. Musser Street, Suite 1025, Carson City, NV, 89701. (request form is optional)

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By Online Payment:  Go to our online Marriage License Payment Form.
By Telephone with Credit Card (VISA or MC only):   Call 775-887-2084 during regular business hours. A transaction fee of $2.50 will be added to the credit card order.

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To search for a marriage purchased and recorded in Carson City CLICK HERE. If you did not purchase your license in Carson City (previously known as Ormsby County), contact the County Recorder in the County where you purchased your marriage license. (List of County Recorders)

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For answers to the most common questions and directions to our office, please visit our Common Questions page.

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The Marriage Bureau is located on the first floor of the Carson City Courthouse, 885 East Musser Street, Suite 1025, Carson City, Nevada 89701.

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HOURS: 8 AM to 5 PM - Monday thru Friday AND 9 AM to 4 PM - Saturday & selected Holidays.    We are closed on Thanksgiving Day, Christmas Day and various holidays listed below.

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Always call the marriage office the day you plan on coming in. On weekends or holidays make sure the office is open!

ER 155
http://www.carson.org/Index.aspx?page=102[9/8/2012 5:04:33 PM]

Carson City : Marriage Bureau
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Treasurer Bid Opportunities
HOLIDAY HOURS
For additional information, please feel free to call (775)887-2084, 24 hour marriage information hotline (775)887-2085, fax (775)887-2146, or email marriages@carson.org.
MARRIAGE RECORDS LOOKUP Last updated date: 11/17/2011 11:15:28 AM Home - Employment - Municipal Codes - Online Services - Contact Us ©2003-2012 Carson City, Nevada All Rights Reserved. • City Hall: 201 North Carson Street, Carson City, NV 89701
Email Us • Copyright and Privacy Policy • ADA Information Website Designed and Developed by Vision Internet
ER 156
http://www.carson.org/Index.aspx?page=102[9/8/2012 5:04:33 PM]

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Exhibit B
ER 157

Clerk Home Page
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Official Records Official documents, including board meeting minutes, voting records and county contracts are maintained by the County Clerk.  Requests for copies of official records are submitted to the County Clerk rather than to members of the various boards. This is to assure that responses to such requests are timely, complete and accurate. The County Clerk responds equally and fairly to all parties needing access to county records.
Marriage Licenses The Clark County Clerk is responsible for the issuance of all marriage licenses in the County.   Clark County is home to Las Vegas, Nevada, the “marriage capital of the world.” In 2011, approximately 89,000 marriage licenses were issued by the Clark County Clerk’s Office, more than any other county. The marriage industry is a very large part of the Las Vegas tourist economy. It is the duty of the County Clerk to not only assure compliance with all laws and statutes when issuing marriage licenses, but to do everything possible to make getting married in Las Vegas a pleasant and happy experience for the many couples who come here each year.
Minister Licensing - Certificates of Authority to Solemnize Marriages All ministers and “other persons authorized to perform marriages” must obtain a Certificate of Authority to Solemnize Marriages from the County Clerk. The performance of marriages is a serious responsibility. Getting married changes a couple’s vital records. In addition, it often affects their finances, including disbursement of retirement accounts, distribution of social security benefits and beneficiary designations on life insurance policies, to name just a few.  It is the Clerk’s responsibility to ensure that individuals who solemnize marriages perform this duty responsibly, and process vital documents according to state law.

Diana Alba, Clark County Clerk

Civil Marriage Ceremonies As the Commissioner of Civil Marriages, the Clark County Clerk operates the “Office of the Commissioner of Civil Marriages” where couples may have their marriage solemnized in a tranquil, private and dignified ceremony.  The fee for these civil marriage ceremonies is set by Nevada law and Clerk employees may not receive any additional compensation for this service.

Fictitious Firm Names Every person doing business in Nevada under an assumed or fictitious name, must file with the County Clerk a certificate containing the business name. (Commonly referred to as a “DBA” certificate.)

Bonds and Oaths of Notary Publics Every person wishing to become a Notary Public must file his or her bond, together with the oath, with the County Clerk of the county in which the applicant resides. The County Clerk immediately certifies to the secretary of state that the required bond and oath have been filed and recorded. Applicants may also be sworn in by the County Clerk or one of her deputies.

Passport Acceptance The Clark County Clerk operates as a Passport Acceptance Agency for the U. S. Department of State. Passport applications and renewals are processed by the Clerk’s Office from 8 a.m. to 4 p.m., Monday through Friday.

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© 2010 Clark County, NV

500 S. Grand Central Pkwy., Las Vegas, NV 89155 (702) 455-0000

ER 158
http://www.clarkcountynv.gov/depts/clerk/Pages/default.aspx[9/8/2012 4:49:07 PM]

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Exhibit C
ER 159

CasCe:a1s2e-21:71626-8cv-001507/188-/R2C01J3-PAL IDDo:c8u8m2e8n0t387 DFkilteEdnt0r9y:/1200/-152 PPaaggee1: 812o3f 3o4f 22(3111 of 928)
ER 160

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ER 161

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ER 162

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ER 163

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ER 164

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Exhibit D
ER 165

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ER 166

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ER 167

CasCe:a1s2e-21:71626-8cv-001507/188-/R2C01J3-PAL IDDo:c8u8m2e8n0t387 DFkilteEdnt0r9y:/1200/-152 PPaaggee2: 613o1f 3o4f 22(1319 of 928)
ER 168

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ER 169

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Exhibit E
ER 170

SSA - POMS: PR 02707.031 - Nevada - 10/20/2011
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Social Security Online

POMS Section: PR 02707.031

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Effective Dates: 10/20/2011 - Present TN 6 (01-10)

PR 02707.031 Nevada

A. PR 10-045 Nevada Domestic Partner Legislation Effective October 1, 2009
DATE: December 28, 2009
1. SYLLABUS
A Certificate of Registered Domestic Partnership, entered in the State of Nevada, is not proof of a legal name change.
2. OPINION
On October 1, 2009, the Nevada Secretary of State issued a Certificate of Registered Domestic Partnership to Kaylynn S. P~ and Jennifer R. C~. You asked whether this Certificate is valid. You also asked for information about the Nevada Domestic Partnership Act and how it might affect benefits under the Social Security Act. SHORT ANSWER The Certificate of Registered Domestic Partnership that you submitted appears to be a valid document reflecting a legally registered domestic partnership (not a legal marriage) between Kaylynn S. P~ and Jennifer R. C~. The Certificate does not appear to reflect a legal name change. The Nevada Domestic Partnership Act should have no effect on spouses’ benefits or deceased spouses’ benefits under the Social Security Act. However, a valid, registered domestic partnership may impact determinations about whether and upon whom children are dependant, and determinations about claimants’ assets. ANALYSIS The Nevada Domestic Partnership Act (NDP Act) took effect on October 1, 2009. The NDP Act added a new chapter (Ch. 393) to the provisions of the Nevada Revised Statutes (NRS) pertaining to domestic relations (Title 11). NDP Act, Tit. 11, ch. 393 (2009) (to be codified at Nev. Rev. Stat. § 393.__), available at http://leg.state.nv.us/75th2009/Bills/SB/SB283_EN.pdf The NDP Act establishes the “domestic partnership as a new type of civil contract recognized in the State of Nevada,” giving registered domestic partners many of “the same rights, protections, benefits, responsibilities, obligations and duties as do parties to any other civil contract created pursuant to title 11 of NRS.” Id. The NDP Act does not require public or private employers in Nevada to provide health care benefits to the registered domestic partners of employees. Id. § 8. It specifies that “a domestic partnership is not a marriage” under the Nevada Constitution. Id. § 11. Under the Nevada Constitution, “[o]nly a marriage between a male and female person shall be recognized and given effect.” Nev. Const. Art. I, § 21. Although a registered domestic partnership is not recognized as a marriage, the NDP Act does not limit the ability to register a domestic partnership to only same-sex couples. All “persons sharing a common residence,” who are at least 18 years old and not related by blood, who are competent to consent to the partnership, and who are neither married nor a member of another domestic partnership, are eligible to register for a domestic partnership in Nevada. NDP Act, § 6.
ER 171
https://secure.ssa.gov/poms.nsf/lnx/1502707031[9/8/2012 4:40:53 PM]

SSA - POMS: PR 02707.031 - Nevada - 10/20/2011
CasCe:a1s2e-21:71626-8cv-001507/188-/R2C01J3-PAL IDDo:c8u8m2e8n0t387 DFkilteEdnt0r9y:/1200/-152 PPaaggee3: 013o5f 3o4f 22(1323 of 928) In order to register, a couple who wishes to form a legal, domestic partnership must complete a form entitled “Declaration of Domestic Partnership,” in which they declare that they meet the eligibility requirements outlined above, and of their own free will, they “have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” Id. Both parties must sign the declaration before a Notary Public, pay a filing fee, and deliver it to the Nevada Secretary of State. Nev. Sec’y of State, Information on Domestic Partnership Filings, http://nvsos.gov (last visited December 28, 2009). If the couple satisfies the requirements, the Nevada Secretary of State’s Office issues a Certificate of Registered Domestic Partnership. Id.
Registered domestic partners who submitted their paperwork in advance were able to obtain a Certificate of Registered Domestic Partnership on October 1, 2009, the date the law became effective. Id. Thus, the Certificate of Registered Domestic Partnership issued to Ms. P~ and Ms. C~ on October 1, 2009, appears to be valid. We now discuss the rights and obligations conferred by this certificate.
First, if the parties wish to terminate their registered domestic partnership, they must comply with the procedures set forth in NRS, chapter 125, pertaining to the dissolution of marriage. Nev. Rev. Stat. Ann. §§ 125.005-125.560 (West 2009). However, the parties may expedite the termination if they have been registered for less than 5 years and meet all of the following conditions: the partners have no minor children for which they have not executed a custody agreement; no female partner is pregnant; the partners have no jointly held property for which they have not executed a disposition agreement; both partners have waived their right to future support; and both partners have waived their right to terminate the partnership under NRS, chapter 125. Nev. Sec’y of State, Domestic Partnership - Frequently Asked Questions (FAQ), http://nvsos.gov (last visited December 28, 2009).
For the purposes of Nevada law, the rights and responsibilities conferred by the NDP Act upon current domestic partners, former domestic partners, and the surviving partners of deceased domestic partners are the same as those granted and imposed upon spouses, former spouses, and surviving spouses. The NDP Act sets forth the following specific rights and obligations:
The rights and obligations with respect to a child of either domestic partner shall be the same as those afforded and imposed upon spouses. The rights and obligations pertaining to community property; third-party debts; financial support following dissolution of the partnership; and other rights and duties as between the partners concerning ownership of property shall be the same as those afforded and imposed upon spouses, commencing on the date of the registration of the partnership.
Domestic partners have the same right to nondiscriminatory treatment as that provided to spouses.
Nevada public agencies shall not discriminate against any person or couple on the basis or ground that he or she is in a domestic partnership rather than a marriage.
NDP Act, § 7. The NDP Act also specifies that, to the extent that any provision of Nevada law adopts, refers to, or relies upon a provision of federal law that otherwise would cause domestic partners to be treated differently from spouses, the provision must be construed as recognizing a domestic partnership in the same manner as Nevada law. Id.
The NDP Act contains no requirement that one or both domestic partners change his/her name when entering into a registered domestic partnership. Nev. Sec’y of State, FAQ. The Secretary of State’s guidance instructs that, if one or both registered domestic partners subsequently pursue a legal name change, they may obtain a new Certificate of Registered Domestic Partnership depicting the legally-changed name(s) by filing a name change amendment and submitting a copy of the legal proof of name change (e.g., court order). Id.; see also Domestic Partnership Certificate Reorder and Amendment Form, available at http://nvsos.gov. The Secretary of State recognizes that “it is not within the Office’s jurisdiction to determine or require federal agencies to process a name change based on the Domestic Partnership certificate.” Id.
Because the NDP Act has been in effect for almost three months, we could find no cases discussing its various provisions. We anticipate that these provisions will eventually be tested in Nevada courts. Therefore, any specific questions pertaining to child relationships or assets, where a Nevada registered domestic partnership is implicated, should be referred for a legal opinion.

To Link to this section - Use this URL: http://policy.ssa.gov/poms.nsf/lnx/1502707031
ER 172
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PR 02707.031 - Nevada - 10/20/2011 Batch run: 10/20/2011

SSA - POMS: PR 02707.031 - Nevada - 10/20/2011
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Rev:10/20/2011
Privacy Policy | Website Policies & Other Important Information
ER 173
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Exhibit F
ER 174

Nevada DMV Name Changes
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Driver License/ID Card
If you are legally changing your name because of marriage, divorce or a court-approved legal name change, you must change your name with the Social Security Administration first. See Changing your name on your Social Security card. You must visit a Social Security office in person.
The DMV electronically verifies your name, birth date and social security number with the SSA. You may wish to wait for two or more business days for Social Security to update your records.
You must have your current license or ID and the original legal documents which authorize the change. For marriage, this must be the certified Marriage Certificate which is recorded with the County Recorder. The Marriage License issued before the ceremony is not acceptable. Divorce decrees or other court documents must be originals or certified copies.
You must visit a DMV Office to have a new driver license or ID card issued. This cannot be done online or through the mail. The DMV will punch a hole in your existing license or ID and return it to you with an interim document. Your new license or ID will be mailed to you.

Vehicle Registration & Title
Registration
If you are changing your name, you must have the legal document which authorizes the change (Marriage Certificate, divorce decree, etc.). Divorce decrees should include language which awards the vehicle to the new owner by Vehicle Identification Number. You do not have to change the title for a name change only, but we suggest you do so if possible.
We will match the full legal name on your driver license. You must get a new Nevada Evidence of Insurance card with the name(s) exactly as they will be listed on the license and registration. Bring the name change document, proof of insurance card and current registration slip to a DMV office.
An emissions inspection and registration renewal are not required as long as one of the current owners remains on the new registration.
You have the option of renewing your vehicle registration for a full year. You will need to complete an emissions inspection if required and if the last test was completed more than 90 days ago. Your expiration date will change if the current expiration date is more than 35 days away. Credit will be given for the unused portion of your current Nevada registration.
Vehicle Title
If you are adding or dropping vehicle owners, you must change the vehicle title as well as the registration. We suggest changing it even if the owner(s) remain the same. If you have the title, bring it with you.
If the title says 'person 1' AND 'person 2', both parties must sign it. If the title says 'person 1' OR 'person 2', either party can sign without the other.
If you have a loan or lease on the vehicle, you must ask the lienholder to approve the change. The lienholder may ask you to sign either the title or a power of attorney. The lienholder may wish to refinance any loan if you are adding or dropping vehicle owners. The lienholder will have to apply for the new title and issue you a letter, including the Vehicle Identification Number, stating they will do so. You may also satisfy the lien and bring the signed-off title to the DMV.
Lienholders who are not familiar with Nevada procedures should call Title Research at 775-684-4810 for exact instructions. See the Registration and Title Guide (PDF - 216 pages - 10 mb).
DMV Title Research 555 Wright Way Carson City, NV 89711 (775) 684-4810 in Reno/Carson City (702) 486-4368 in Las Vegas
ER 175
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Nevada DMV Name Changes
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1-877-368-7828 in rural Nevada/out of state

Family Trust
To transfer vehicles into a Family Trust, you must ask any lienholder to approve the change. The lienholder may ask you to sign either the title or a power of attorney, and may wish to refinance any loan. The lienholder will have to apply for the new title and issue you a letter, including the Vehicle Identification Number, stating they will do so. You may also satisfy the lien and bring the signed-off title to the DMV.
You must add the name of the insured trustee to the registration and title or request that your insurance company report the vehicle in the name of the trust. The name of the insured on the Nevada Evidence of Insurance card must match either a name of a trustee or the trust as the vehicle will be registered. This is necessary to comply with Nevada LIVE Insurance Validation.
Please note the name of the trust can be a maximum of 34 characters. Bring the following items to a DMV FullService Office:
Vehicle Title or lienholder letter Current registration Nevada Evidence of Insurance Card A completed Trustee Appointment and Powers Affidavit (VP-188)
An emissions inspection and registration renewal are not required.
You have the option of renewing your vehicle registration for a full year. You will need to complete an emissions inspection if required and if the last test was completed more than 90 days ago. Your expiration date will change if the current expiration date is more than 35 days away. Credit will be given for the unused portion of your current Nevada registration.
If you have a Governmental Services Tax Exemption for Veterans, Disabled Veterans, Surviving Spouses or the Blind, you may apply this to a vehicle registered to a trust by completing the Trust Affidavit for Exemptions (VP242). This must be filed at the registration renewal each year.

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ER 176
http://www.dmvnv.com/namechange.htm[9/8/2012 4:39:24 PM]

CasCea: s1e2-21:71626-c8v-001507/188-R/2C0J13-PAL DIDo:c8u8m2e8n0t3886-1 DkFtEilendtry0:92/100-5/12 PPaaggee: 114o0f o8f122(1328 of 928)

1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

APPENDIX TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, VOLUME 1

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 177

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1

APPENDIX, VOLUME 1

2

3 DECLARATION OF BEVERLY SEVCIK ................................................................................... 1

4 DECLARATION OF MARY BARANOVICH.............................................................................. 6

5 DECLARATION OF THEODORE SMALL ............................................................................... 11

6 DECLARATION OF ANTIOCO CARRILLO ............................................................................ 16

7 DECLARATION OF KAREN GOODY ...................................................................................... 21

8 DECLARATION OF KAREN VIBE ........................................................................................... 25

9 DECLARATION OF GREG FLAMER ....................................................................................... 30

10 DECLARATION OF FLETCHER WHITWELL ........................................................................ 34

11 DECLARATION OF MIKYLA MILLER ................................................................................... 38

12 DECLARATION OF KATRINA MILLER ................................................................................. 42

13 DECLARATION OF ADELE NEWBERRY............................................................................... 46

14 DECLARATION OF TARA NEWBERRY ................................................................................. 50

15 DECLARATION OF CAREN CAFFERATA-JENKINS............................................................ 54

16 DECLARATION OF FARRELL CAFFERATA-JENKINS........................................................ 58

17 DECLARATION OF SARA GEIGER ......................................................................................... 62

18 DECLARATION OF MEGAN LANZ ......................................................................................... 67

19 DECLARATION OF TARA BORELLI ...................................................................................... 71

20

Exhibit A ........................................................................................................................... 73

21

Exhibit B ........................................................................................................................... 75

22

23

24

25

26

27

28

- i -
ER 178

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF BEVERLY SEVCIK IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 179

Appendix – Page 1

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1

I, Beverly Sevcik, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my life partner Mary

3 Baranovich. I am 74 years old and I reside in Carson City, Nevada. I have personal knowledge

4 of the matters stated in this declaration and could and would so testify if called as a witness.

5

2. Mary and I are lesbian individuals in a loving, committed relationship of more

6 than 40 years. We committed our lives to one another and exchanged rings on October 2, 1971,

7 and registered as domestic partners in Nevada when it became possible to do so in 2009. Mary is

8 the love of my life, and I long for the day that I can marry her and call her my wife.

9

3. I was born in Moscow, Idaho, and spent most of my childhood in Washington

10 State. During World War II, my family moved to Bremerton, Washington so that my father could

11 work in the Bremerton Navy Yard; after the war ended, we moved to Seattle where my father had

12 been offered a job. I lived in Seattle until 2001. Over the years, I did secretarial and insurance

13 work, as well as some credit collection. I retired from employment at age 54.

14

4. Mary and I moved to Carson City in 2001. We had traveled to Reno several times

15 throughout the years to enjoy the sunshine and casinos, and we grew to really love the area. So,

16 after my ailing mother, whom I had been caring for, succumbed to Alzheimer’s Disease we

17 decided to leave Seattle. We have lived in Carson City ever since, and have found it to be a

18 wonderful community.

19

5. I have three children (ages 49, 51, and 53 years) and four grandchildren (ages 14,

20 19, 23, and 28). I have a close relationship with my children and grandchildren, and truly enjoy

21 being a mother and grandmother.

22

6. Marriage has always been very important to me. My parents each came from large

23 families in Canada, and were married for 64 years. And, at age 20, I did what was expected of

24 every young girl in the 1950s – I got married and then had children. Although I loved being a

25 mother, I was extremely unhappy in my marriage and subsequently divorced my husband. At the

26 time of my divorce, our three children were 8, 10, and 12 years old, and I was awarded primary

27 custody of all three of them.

28

7. I realized that I had always been a lesbian when I developed very strong feelings

ER 180

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Appendix – Page 2

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1 for my friend and neighbor, Mary. She and I had been friends for quite some time and spent a lot

2 of time at each other’s houses talking and visiting, but I had not previously realized that my

3 feelings for her had grown way beyond friendship. So, one day when Mary was visiting my

4 house, I told her how I felt. She was very surprised and immediately went home without any

5 further conversation. After she left, the gravity of what I had said and what that meant – that I

6 was in love with a woman – hit me like a ton of bricks. For days, I couldn’t eat or sleep and was

7 in complete emotional turmoil. I went to talk to a psychologist and he assured me that my

8 feelings were “okay” and said that “there are good productive people out there who are gay.” He

9 told me I didn’t have to feel ashamed or afraid. While it was not until the last few years that I felt

10 safe and comfortable telling people I am a lesbian, it is part of who I am and there is no denying

11 it.

12

8. Soon after I told Mary how I felt, we revisited our previous conversation and she

13 told me she was in love with me as well. We began living together and Mary helped me raise my

14 three children. Although we lived together and shared a bedroom, we hid our relationship and

15 sexual orientation and let others simply think whatever they wanted to think. Despite the fact that

16 we were very good and loving parents, it was the early 1970s and we feared having the children

17 taken away. Mary grew very close to my children and became an important parental figure in

18 their lives. Our children are very accepting of our relationship, and have never expressed anything

19 except for love and support for us. In fact, when my daughter had her first child, she asked us if

20 her child could call Mary “Nana.” Of course, we said “yes”.

21

9. Not long after we began living together, I told Mary that I wanted to be with her

22 forever, and that it was important to me that we make a verbal commitment to one another and

23 seal that promise by exchanging rings. She agreed and we designated October 2, 1971, as the day

24 we would make a lifelong commitment to one another. To celebrate, we stayed in a hotel in

25 downtown Seattle and went to JCPenney and bought each other a ring. We were careful not to

26 buy matching rings, however, because we were afraid that if we did others would figure out that

27 we were a lesbian couple. We have celebrated that day as our anniversary ever since.

28

10. In 2009, as soon as domestic partnerships became available in Nevada, we went to

ER 181

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Appendix – Page 3

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1 the Secretary of State’s Office and registered as domestic partners. We picked up our certificate 2 of domestic partnership on October 1, 2009, the day before our 38th anniversary. Although it

3 meant a lot to me, I found myself longing to be married instead.

4

11. I feel that it is truly shameful that after 40 years together, Mary and I cannot get

5 married. Our love is real and our commitment has endured over four decades. There are so many

6 things about her that I love, admire, and respect that I could not possibly list them all. She is

7 sensible and well grounded; kind, compassionate, and friendly; and I enjoy her company and love

8 spending time with her. Mary goes out of her way to take good care of me and make sure that my

9 needs are met. We are compatible in every respect – we have similar interests, dislikes, and likes.

10 Mary and I have an amazing bond, and it feels like we have been together forever. She is my best

11 friend, my companion, and my one true love. I truly cannot imagine my life without her.

12

12. Mary has been a loving parent to my children and a grandmother to my

13 grandchildren. After 40 years together, our lives are intertwined in every way possible. We have

14 been together so long, that we are emotionally, mentally, financially, and physically dependent on

15 one another. We have stood by one another through the joys and struggles of life, and we have

16 proven that our commitment to one another is truly “’til death do us part.” Like any loving and

17 committed couple, we want for our relationship to be given the respect and recognition that it

18 deserves. I want to be able to say “I do” and call Mary “my wife.”

19

13. Over the years, I have grown tired of having to explain my relationship with Mary

20 to others. Several times, I have been asked if Mary is my sister. And, the issue almost always

21 comes up when filling out forms and getting medical care. I want to be able to tell people

22 proudly, “she is my wife,” and have them understand exactly what that means. Domestic

23 partnership simply does not do that. Although registering as domestic partners and having wills

24 and powers of attorney drawn up has alleviated some stress, it just does not have the same

25 meaning as marriage. Marriage is the only way that I will feel completely secure that my

26 relationship is fully protected and recognized, as it deserves to be.

27

14. On April 3, 2012, Mary and I went to the Carson City Marriage Bureau in Carson

28 City, Nevada to get a marriage license. We had the identification required to prove our names

ER 182

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Appendix – Page 4

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ER 183

Appendix – Page 5

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF MARY BARANOVICH IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 184

Appendix – Page 6

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1

I, Mary Baranovich, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my life partner Beverly Sevcik.

3 I am 76 years old and I reside in Carson City, Nevada. I have personal knowledge of the matters

4 stated in this declaration and could and would so testify if called as a witness.

5

2. Beverly and I are lesbian individuals, and we have been in a loving and committed

6 relationship for almost 41 years. We committed our lives to one another and exchanged rings on

7 October 2, 1971, and we are registered as domestic partners in Nevada. I have spent more than

8 half of my life with Beverly, and want to be able to marry her and have our love and relationship

9 recognized for what it is – two lives shared as one in love, respect, and commitment.

10

3. I was born in Vancouver, Washington, and lived there with my parents and older

11 brother until I was 20 years old, at which time I moved to Seattle. I obtained an associate’s

12 degree in liberal arts from Clark College in Vancouver, Washington, and worked as an insurance

13 secretary and then a bookkeeper. For 7 years, during the AIDS epidemic, I also did volunteer

14 work with AIDS patients in Seattle at the Bailey-Boushay House, a residential care facility. I

15 retired from employment at age 54, and until recently I volunteered at the Nevada State Museum

16 in Carson City.

17

4. I lived in Seattle until 2001, when, after retiring, Beverly and I moved to Carson

18 City. We had traveled to the Reno area several times throughout the years, and we wanted to

19 retire in a place where we could enjoy the sunshine and good weather. We really like Carson City

20 and the surrounding area and, after so many years of rainy Seattle weather, I often joke that we

21 have “died and gone to heaven.”

22

5. I realized I was a lesbian when I was 18 years old. I was taking an “abnormal

23 psychology” class in college, and we were talking about homosexuality. The professor was

24 talking about homosexuality as “abnormal” and as a psychological disorder, and I realized he was

25 talking about me. I felt distressed and isolated, but it was not a choice I had made and was just

26 part of who I am. I began dating women in my early 20s, but never told my parents that I was a

27 lesbian.

28

6. Throughout my life, I have witnessed discrimination and homophobia in many

ER 185

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Appendix – Page 7

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1 forms. I remember being in women’s bars in the mid-to-late 1950s, when I was in my early 20s,

2 and how the police would storm in and raid the bar. As soon as the police arrived, which could

3 happen at any time, the bartender would give everyone a signal so that everyone would be on

4 their best behavior. The police would walk around amongst the tables, with their nightsticks in

5 hand. No one ever knew what was going to happen and there was always the fear that you would

6 be taken away. Also, I frequently heard stories of violence and arrests at the men’s bar. It was

7 very, very frightening.

8

7. When I went to the women’s bar, it was for a sense of community and to meet

9 other people like me. But, I was always extremely guarded and never gave anyone my last name,

10 because I knew I would be terminated from my job if my sexual orientation was discovered.

11 After Beverly and I became a couple, I even avoided associating with any lesbians who looked

12 masculine, and tried to blend into the heterosexual world the best I could to make sure no harm

13 would befall the family. I feared that, if anyone discovered my relationship with Beverly, we

14 could lose our jobs, lose custody of Beverly’s children, or have our house vandalized or broken

15 into. Unfortunately, that was just the reality of the time.

16

8. I met Beverly when I was in my early 30s. She lived across the street, and we

17 became good friends. We spent a lot of time visiting one another and grew to be very close. I

18 cared for Beverly deeply, but had not given my feelings much thought because I did not know she

19 was a lesbian and did not see her as being available. But, one day when I was visiting at

20 Beverly’s house, she told me she had fallen in love with me. I was so dumbfounded, that I went

21 home without saying a word. Soon after, we saw one another again and I told her that I too was

22 in love with her. We have been together ever since.

23

9. In 1971, I moved in with Beverly and her three young children. Shortly thereafter,

24 on October 2, 1971, we decided to make a lifelong commitment to one another and we exchanged

25 rings as a symbol of our love and commitment. Beverly and her children are my family. She has

26 always been a wonderful mother, and through the years I have grown to love her children just as

27 if they were my own. I have a great relationship with all three kids, who are now grown and have

28 children of their own. When our daughter had the first of her two children, she asked us if they

ER 186

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Appendix – Page 8

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1 could call me “Nana.” I was honored, and love being a grandmother.

2

10. Beverly is truly the love of my life. I cannot imagine life without her. She is a

3 wonderful person, and I have tremendous respect and admiration for her. She is open-minded,

4 thoughtful, and kind. One of the qualities I admire about her most is that there is simply nothing

5 that she won’t tackle – be it installing light fixtures or fixing the plumbing, to fixing a delicious

6 meal for a group of our friends. For example, when we lived in Seattle, she didn’t like the type of

7 walls we had in the house, so she single handedly tore them out and installed new ones. She also

8 has a tremendous sense of humor, and I love to hear her sing and whistle throughout the day. She

9 is a beautiful person, inside and out, and I have made it my mission in life to ensure that she is

10 happy and well taken care of. Beverly is my best friend and my closest confident, and she is the

11 most important person in my life. I want to be able to call her my wife.

12

11. Shortly after we moved to Carson City, Question 2 was on the ballot for the

13 second biennial vote. I remember hearing the degrading campaign messages on the radio and

14 television and seeing them on billboards, expressing the misguided view that allowing same-sex

15 couples to marry would somehow destroy marriage between a man and a woman. This message

16 was extremely hurtful and disparaging, and I have never heard anyone explain how recognizing

17 my commitment to Beverly of over 40 years would have an adverse effect on anyone or affect

18 anyone else’s marriage in any way whatsoever.

19

12. Although it meant a great deal to us when we registered as domestic partners in

20 2009, I am deeply disappointed and hurt by not being able to marry Beverly. We have been

21 together for more than four decades, and have proven that our love is enduring and our

22 commitment is forever. I feel like the state is saying that we are good enough to handle the same

23 responsibilities as spouses, but we are not deserving of the respect and recognition of marriage.

24

13. On April 3, 2012, Beverly and I went to the Marriage Bureau in Carson City,

25 Nevada to get a marriage license. We had the identification required to prove our names and

26 ages, and were prepared to pay the $75 fee and complete a marriage application. When we

27 requested a marriage license, an employee of Defendant Carson City Clerk-Recorder Alan

28 Glover, who was working behind the counter, directed us to the Secretary of State’s Office to

ER 187

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ER 188

Appendix – Page 10

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF THEODORE SMALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 189

Appendix – Page 11

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1

I, Theodore Small, hereby declare and state as follows:

2

1. I am a plaintiff in this case, and reside in Las Vegas, Nevada. I have actual

3 knowledge of the matters stated in this declaration and could and would so testify if called as a

4 witness.

5

2. Antioco Carrillo and I are gay men and have been in a loving, committed

6 relationship for six years and wish to marry each other. We are registered as domestic partners in

7 Nevada.

8

3. I am 44 years old, and have undergraduate and master’s degrees in education.

9 After 12 years of working in the classroom, I took a position as a professional developer and

10 trainer for teachers of English language learners, and worked as a professional developer for the

11 state to train science teachers. I returned to teach in the elementary school classroom 4 years ago.

12 I have now worked in the same school district for nearly two decades. In December of 2011, I

13 was nominated as a Classroom Superhero, as part of a project created by the National Education

14 Association that allows parents, students, and community members to show support to educators.

15 I love being a teacher and, while it is not without challenges, I feel fortunate to be able to do such

16 rewarding work.

17

4. I was born in Logan, Utah, and was raised in Bear Lake, Idaho. I moved to Las

18 Vegas in 1994 to accept a new teaching job, and this has been my home ever since.

19

5. I grew up in a conservative religious family, and was taught through my faith that

20 being gay is the worst sin next to murder. I had always known I was different, even as a young

21 child, and it was painful to be taught this core aspect of my identity was an abomination. I tried

22 to ignore my sexual orientation, but those efforts were futile. Being gay is part of my essence,

23 and it has never been a choice for me. Anti-gay teachings, and efforts to force gay youth into

24 sexual orientation conversion programs were common in my community. As a result, I saw first-

25 hand the damaging toll that these programs took on gay youth, who suffer disproportionate rates

26 of depression and suicide. Motivated to help others, I finally decided to break my silence and live

27 openly and honestly as a gay man at the age of 23.

28

6. Even then, however, I could not have imagined that I would someday meet a life

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1 partner who brings me as much joy as Antioco does. One of the things I treasure most about him

2 is his sense of humor and incredible wit. I love that he is always ready to put others at ease with a

3 joke. The story of how we met is no different. I ran a church group in the 1990s called

4 Welcoming Congregation, and Antioco participated as a panelist in one of our events. At the

5 time, we were involved in other relationships, and did not begin dating until six years ago.

6 Antioco likes to joke, however, that I waited all those years to be with him. In a sense, he is right.

7 If I had known that he was going to be my happy ending, I would have counted down the days.

8

7. Our relationship began six years ago when I was volunteering with a local chapter

9 of an organization called the Gay, Lesbian and Straight Education Network (“GLSEN”), which

10 works to reduce bullying and harassment of lesbian, gay, bisexual and transgender (“LGBT”)

11 youth. A local school was refusing to allow lesbian and gay youth to attend their homecoming

12 dance with a same-sex date, and the students were crushed by the idea of missing out on one of

13 the most important nights of their high school years. I worked with GLSEN to organize another

14 homecoming dance so that they could have their homecoming after all, and sent out emails to

15 friends looking for chaperones. With his characteristic humor, Antioco responded that he would

16 volunteer “only if I can dance with you.” I was intrigued and said in a reply email that I would

17 save him a dance.

18

8. After a year of dating, we moved in together. It did not take me long to realize

19 that Antioco was “the one” for me. I quickly came to appreciate that Antioco not only loves me

20 for who I am, but also inspires me to be my best self. With Antioco’s humor and enthusiasm for

21 life, we laugh often and love spending time together, but also support each other’s individuality.

22 We also both enjoy spending time with friends and family, an important common value that has

23 shaped our lives together.

24

9. In fact, we hope to start a family of our own in the near future. We plan to adopt

25 because we know there are many children in the child welfare system looking for a “forever”

26 home, and we want to provide that love and nurturance as parents. We both share a deep desire,

27 however, to raise our children as a married couple. We do not want our children to wonder why

28 their government treats their family differently, or to absorb the message that, because our state

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1 does not allow us to marry, their family is less worthy or valued than others.

2

10. Antioco and I registered as domestic partners with the state in October of 2010, but

3 know that it cannot begin to substitute for a marriage. We decided not to invite family and

4 friends because it could not begin to approximate a wedding, and we want to have a real

5 celebration with them on the day that we can finally get married. Our domestic partnership

6 registration, on the other hand, was a sterile process devoid of any celebration. It required us to

7 get the appropriate form notarized, and I recall standing in the middle of a bank lobby with our

8 right hands raised to swear that the information on the form was true. That is not the equivalent

9 of a wedding on any level, where two people take vows to love and care for each other in sickness

10 and in health, through a public celebration that melds their families as one. Instead, we filed the

11 form with the Nevada Secretary of State and picked it up the next day. Part of what makes a

12 wedding such a cherished life event is that there is no substitute for it, and we were painfully

13 reminded of that as we went through this dry administrative process.

14

11. We have many friends and family who are waiting for us to get married and,

15 when that day finally arrives, we know it will be the celebration of our lifetime. I also look

16 forward to the part of our lives when I do not have to confront daily reminders of the way the law

17 sets us apart, including for example, every time I have to cross out “spouse” on forms at the

18 doctor’s office, and write “domestic partner” instead.

19

12. Antioco and I are both over the age of 18, are not barred from marrying each other

20 as a result of being too closely related to each other, and are not married to anyone else. On April

21 6, 2012, we appeared in person at the Marriage Bureau for the Office of the Clerk for Clark

22 County in Las Vegas, Nevada to seek a marriage license. We both were prepared to present valid

23 forms of identification to prove our names and ages, pay the required $60 fee, and complete a

24 marriage application. As we approached the counter to apply for a marriage license we saw a

25 sign indicating that applicants must be a “bride and groom only.” When we asked a clerk for a

26 marriage license application, she responded that we would have to contact the Secretary of State

27 to register as domestic partners. When we indicated that we had already registered as domestic

28 partners and wished to marry, she said we could not because the state does not issue marriage

ER 192

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ER 193

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF ANTIOCO CARRILLO IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 194

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1

I, Antioco Carrillo, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my partner, Theodore (“Theo”)

3 Small. I am 45 years old, and reside in Las Vegas, Nevada. I have personal knowledge of the

4 matters stated in this declaration and could and would so testify if called as a witness.

5

2. Theo and I are gay men and have been in a loving, committed relationship for six

6 years and wish to marry each other. We are registered as domestic partners in Nevada.

7

3. I serve as the executive director of Aid for AIDS in Nevada, a non-profit

8 organization that provides support and advocacy for adults and children living with HIV/AIDS in

9 southern Nevada. I was trained as a social worker, receiving both a bachelor’s and master’s

10 degree in social work from the University of Nevada, Las Vegas (“UNLV”). I also am working

11 to complete a Ph.D. in clinical psychology. Prior to accepting my current position, I worked for

12 19 years at the Community Counseling Center in Las Vegas, providing HIV counseling to people

13 dealing with their HIV diagnosis, mental health issues and substance abuse related disorders,

14 eventually becoming the organization’s Chief Operating Officer. Because mentoring other

15 professionals in the field is important to me, I also teach classes at the UNLV School of Social

16 Work and serve on the school’s advisory board.

17

4. Theo and I began our relationship six years ago when he worked to organize an

18 alternative dance for some local lesbian and gay high school students who had been barred from

19 bringing their dates to their homecoming dance. I was involved in the community at that time as

20 a volunteer advisor for a youth group at the Gay & Lesbian Community Center of Southern

21 Nevada (the “Center”). This work is near and dear to my heart because of the challenges facing

22 lesbian, gay, bisexual and transgender (“LGBT”) youth, who frequently receive societal messages

23 that they are not valued, from the bullying and harassment that many face at school, to the state’s

24 relegation of same-sex couples to the second-class relationship status of domestic partnership. I

25 have seen this take a deep toll on many youth, and this is in fact one of the reasons I am

26 participating in this case: I hope that someday lesbian and gay youth in Nevada will be able to

27 grow up with the same dreams of marrying their one, cherished partner as their heterosexual

28 peers, with all of the validation, dignity, and respect that this shared dream communicates to

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1 others.

2

5. Approximately six years ago, I received an email over a listserv from Theo asking

3 for chaperones at an event for LGBT youth and their allies that Theo was helping to organize.

4 Having known Theo for a number of years I thought he was really special, and I decided to be

5 brave and make my feelings known. I emailed him to say I would volunteer “only if I can dance

6 with you.” When Theo replied that he would save me a dance, I was thrilled.

7

6. We quickly figured out that we were meant to be together, and moved into a

8 shared home just over a year after we started dating. We have entwined our finances and

9 supported each other throughout our years together, pooling our resources into joint accounts and

10 listing each other as beneficiaries on our retirement accounts. I knew early on that I wanted to

11 spend the rest of my life with Theo. We each have a deep respect for each other and a mutual

12 affection that is even stronger today than when we first fell in love. Theo is “the one” for me

13 because I simply cannot imagine myself with anyone else. Theo is very selfless, and I know

14 without question that he will remain devoted to our relationship no matter what challenges lie

15 ahead, as will I.

16

7. We also look forward to beginning the next chapter of our lives together as

17 parents. We are preparing to adopt children through the child welfare system. Having worked

18 with a number of families involved in the system as a counselor, I am prepared for some of the

19 challenges that youth face after having been removed from the homes they were living in and

20 placed in the system. With my mental health background, and Theo’s enthusiasm for kids as a

21 schoolteacher, we think that we could provide the loving home that our children would deserve.

22

8. We both long for the day, however, when we can raise children as a married

23 couple. Even children know what a marriage is, and I don’t want ours to grow up knowing that

24 the state has set their family apart as less valued because their parents cannot get married.

25

9. When we registered as domestic partners with the state in October of 2010, Theo

26 felt strongly that he did not want to have a “wedding” or family celebration until we could

27 actually be married, and I agreed. We knew that staging a ceremony bereft of the state

28 recognition afforded to different-sex couples who marry would feel inauthentic. While we have

ER 196

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1 attended commitment ceremonies for other same-sex couples, and understand their desire to find

2 some way to celebrate their commitment to live their lives together, we knew that for us it would

3 feel like an imitation. We do not want the crumbs of a full life; we want to live a full life

4 together.

5

10. We are waiting for the day when we can affirm our commitment to each other

6 through a wedding, in front of all of our loved ones. While my family knows that we are a

7 couple, and appreciates how much joy Theo has brought to my life, only the ceremony and ritual

8 of a real marriage will cause them to understand our relationship the way they understand their

9 own and others’ marriages. My family believes that marriage is the honorable way to show

10 respect for your relationship and your intentions for the future, and our registered domestic

11 partnership simply is not adequate to do that. I cannot wait for the day when everyone in my

12 family, from my mother (my father is dead) to my nieces and nephews, can see that Theo and I

13 are respected under the law just like every other married couple.

14

11. Theo and I are both over the age of 18, are not barred from marrying each other as

15 a result of being too closely related to each other, and are not married to anyone else. On April 6,

16 2012, we appeared in person at the Marriage Bureau for the Office of the Clerk for Clark County

17 in Las Vegas, Nevada to seek a marriage license. We both were prepared to present valid forms

18 of identification to prove our names and ages, pay the required $60 fee, and complete a marriage

19 application. As we approached the counter to apply for a marriage license we saw a sign

20 indicating that applicants must be a “bride and groom only.” When we asked a clerk for a

21 marriage license application, she responded that we would have to contact the Secretary of State

22 to register as domestic partners. When we indicated that we had already registered as domestic

23 partners and wished to marry, she said we could not because the state does not issue marriage

24 licenses for same-sex couples. While I was prepared for our request to be denied, I was not fully

25 prepared for the experience to feel as hurtful as it did. Although the law is a daily reminder that

26 ///

27 ///

28 ///

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ER 198

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

DECLARATION OF PLAINTIFF KAREN GOODY IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 199

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1

I, Karen Goody, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my partner Karen Vibe. I am

3 51 years old and reside in Reno, Nevada. I have personal knowledge of the matters stated in this

4 declaration and could and would so testify if called as a witness.

5

2. My partner Karen and I are lesbian individuals in a loving, committed relationship.

6 We have been together for almost 7 years. We are engaged to be married, and are waiting until

7 we have the legal right to do so in Nevada, the state in which we live and work. For the reasons

8 explained below, we have chosen not to register as domestic partners and are holding out until we

9 can legally marry in our home state.

10

3. I was born in Santa Cruz, California, and lived there with my parents and older

11 sister until I left for college when I graduated high school. I have a bachelor’s degree in

12 management from Sonoma State University. I currently am a medical sales representative for

13 Henry Schein, Inc., the largest provider of health care products and services to medical, dental,

14 and veterinary office-based practitioners.

15

4. Shortly after I began college, I realized that I am a lesbian. I had my first

16 relationship with a woman when I was 19 years old, and it was the first time I allowed myself to

17 put it all together and acknowledge my sexual orientation. Although I was out to my friends in

18 Sonoma County, I did not tell my family that I am a lesbian until approximately 10 years later.

19 Overall, my family has been very accepting, and I have maintained a good relationship with them.

20 Being a lesbian was not a choice for me, it is simply part of who I am.

21

5. I met my partner Karen in August of 2005, at a gay pride celebration in Reno. I

22 was working at a booth at the parade, for my then-employer Allstate. When I took a break to

23 walk around the festival, Karen caught my eye. She was working at the Smith Barney booth, and

24 I went over to the booth and introduced myself. We talked for a while, and I knew right away

25 that Karen was someone special.

26

6. Karen and I started spending time together and I really enjoyed her company. I

27 was interested in her, but she was very honest with me from the beginning that she was newly out

28 of a relationship and was not ready for another serious relationship. I truly appreciated and

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1 admired her honestly and openness, and so we took things slowly and started out as “just friends.”

2 While I knew I wanted more than a friendship with Karen, I felt that it was important to give her

3 the time she needed. In retrospect, that time was invaluable because it allowed us to really get to

4 know one another and create a strong foundation for what has become the most significant love of

5 my life. Despite being “just friends,” our feelings for one another grew quickly and it was not

6 long before I found myself falling in love with her. By November, we were dating exclusively.

7

7. On December 23, 2005, Karen surprised me with a marriage proposal. After a

8 romantic dinner at the steakhouse in Harrah’s, we exchanged Christmas gifts in front of the

9 fireplace. When I opened my “Christmas gift,” I found a beautiful diamond engagement ring and

10 Karen said “Will you marry me? I know it is soon, but we are made for each other. I want to be

11 with you forever.” I was so happy that I burst into tears. Of course, I said “yes.”

12

8. Karen and I have talked about our wedding and we know exactly what we want the

13 ceremony to look like. We want to get married, because of what “marriage” means to us and to

14 others in society. Our primary motivation for marriage is our love for one another and our desire

15 to commit ourselves to one another for life, not the rights and responsibilities that come with

16 marriage. So, after a lot of discussion, we have decided to wait to get married until it is legally

17 recognized in Nevada, and we have decided not to register as domestic partners. We want to be

18 married, and a domestic partnership simply is not a marriage. When Karen proposed to me, her

19 question was “Will you marry me?” not “will you be in a joint state-sanctioned relationship on a

20 secondary level with me?” We do not want to settle for less than being married.

21

9. I want to be able to call Karen my spouse. I am tired of having to figure out how

22 to describe our relationship to other people. For example, I once introduced Karen as “my

23 partner” to a coworker and for the first several minutes of our conversation, he thought Karen was

24 my business partner. This has happened to us repeatedly. From client interactions to social

25 interactions, there is hardly a time when we don’t have to educate someone on what our

26 relationship is and what that means. If I could introduce Karen as “my spouse” or “my wife” then

27 people would understand her relationship to me and my relationship to her without any further

28 explanation.

ER 201

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10. Marriage is important to me, and has always been significant to my family. My

2 par~nts were married until my father passed away shortly after their 50th wedding anniversary,

3 and my older sister has been married for more than 25 years. Marrying Karen would legitimize

4 our relationship in the eyes of our family in a way that nothing else ever will.

5

II. Karen and I are both over the age of 18, are not barred from marrying each other

6 as a result of being too elosely related to each other, and are not married to anyone clse.

7 On April 1,2012, Karen and I went to the Washoe County Marriage Bureau in Reno, Nevada to

8 get a marriage license. We both had identification so we could prove our names and ages, and

9 were prepared to pay the requir~d $60 fee and complete a marriage application. Our experience

10 was horrible. We were not even allowed to go through security to enter the Marriag~ Bureau and

II we w~re told we could not fill out a marriage license form.

12

II. I found it incredible that we were not ev~n allowed in the door to the Marriag~

13 Bureau. Not only were we made to feel like second class citizens, we were treat~d that way. The

14 whole experience was hurtful, and it reinforced our belief that p~ople will not understand or view

15 our relationship or vi~w it as truly significant, until we are abl~ to g~t married just like different~

16 sex couples who wish to commit their lives to one another.

17

Signed under penalty of peljury under the laws of the United States this ~ day of

18 September, 2012.

19

20

----)-~~ftt-:-:~~~~c

21

22

23

24

25

26

27

28

ER 202

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

DECLARATION OF PLAINTIFF KAREN VIBE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 203

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1

I, Karen Vibe, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my partner Karen Goody. I am

3 38 years old and reside in Reno, Nevada. I have personal knowledge of the matters stated in this

4 declaration and could and would so testify if called as a witness.

5

2. My partner Karen and I are lesbians and we are in a loving, committed relationship

6 with one another. We have been together for almost seven years, and we are engaged to be

7 married. The only reason we have not already married is because Nevada, the state in which we

8 both live and work, does not currently allow marriage between two people of the same-sex. As

9 explained in more detail below, we have chosen not to register as domestic partners.

10

3. I was born in Sacramento, California, and grew up in Bakersfield, California. I

11 have a bachelor’s degree in classical music performance from California State University at

12 Northridge, and a master’s degree in classical musical performance from the University of

13 Nevada – Reno (UNR). Shortly after obtaining my undergraduate degree, I moved to Reno, and

14 worked in medical sales while performing with the Reno Philharmonic Orchestra and obtaining

15 my masters degree at UNR. In March of 2005, after finishing my master’s degree, I went to work

16 for Smith Barney and have worked there since that time as a financial advisor.

17

4. Community involvement is important to me. I am on the Board of Directors for

18 the Reno Chamber Orchestra, and I am on the marketing committee of the Reno Philharmonic

19 Orchestra. I have played percussion in the Reno Philharmonic Orchestra since moving to Reno

20 twelve years ago. I volunteer for the Philharmonic’s educational outreach program, Discovery

21 Music, for which I travel with two other percussionists from the Philharmonic to Washoe County

22 Schools (K-6 grade) and perform for the students and teach them about percussion instruments in

23 hopes of getting them excited about music and interested in the orchestra.

24

5. I also am involved in the Professional Saleswomen of Nevada, a non-profit

25 networking organization that strives to develop and promote women in the business world and

26 build a network of successful professional women. In 2009, I was honored with an award for

27 Saleswoman of the Year.

28

6. I have always known I am gay and do not feel as though it was a choice for me. I

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1 was 18 years old when I had my first relationship, but I did not tell anyone that I am a lesbian for

2 three years because I was raised in an extremely conservative family and I knew that my parents

3 would not approve. I came out to my parents when I was 21 years old, and their response was to

4 completely disown me. Eventually, I re-established a relationship with them, but it has been

5 extremely rocky through the years because of their views about my sexual orientation and we

6 have not spoken for more than a year.

7

7. I met my partner Karen in August of 2005, at Reno’s annual gay pride celebration.

8 I was working at Smith Barney’s booth at the pride festival, when she walked up to the booth and

9 introduced herself. We talked for a while, and I found myself instantly drawn to her.

10

8. We began spending time together, but remained “just friends” for the first few

11 months. When we met, I was only a few months out of a six-and-a-half year relationship and

12 needed some time to continue to deal with that break up and the impact it had on me. Although I

13 was very attracted to and interested in Karen at the time, I wanted to take it slow. So, I was

14 honest with her about where I was, and she respected my needs. After two months of being “just

15 friends,” and casually dating other women, a light bulb turned on for me – the “right” person was

16 standing right in front of me and I did not want to pass up the opportunity to be with her.

17 Although we had only known each other for a short time, I knew that Karen was everything I

18 wanted in a partner and more. She is a beautiful person – inside and out; she is my best friend. I

19 felt truly connected to her, and found myself deeply in love with her. In November of 2005, we

20 began our relationship and soon thereafter I decided I wanted to make our relationship permanent.

21

9. Although our relationship was still young, I knew with all my heart that I wanted

22 to be with my partner Karen forever. I decided to ask her to marry me, and bought an

23 engagement ring to surprise her with that Christmas. Because we each had plans to spend

24 Christmas eve and Christmas day of 2005 with our families, we celebrated “our Christmas” on

25 December 23. We went to the steakhouse at Harrah’s and had a romantic dinner, and exchanged

26 Christmas gifts in front of the fireplace. When Karen opened her gift – a ring box – I asked her to

27 marry me. She said “yes.” It was one of the best nights of my life.

28

10. We have talked a lot about our wedding. We know exactly what we want the

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1 ceremony to look like, but we have decided to wait to have our wedding when we can actually get

2 married in Nevada. We have built our life together in Nevada, and I want the opportunity to tell

3 the world that I want to be with Karen forever and have our love and commitment recognized in

4 the same way as other married couples. I believe that day will come, and prefer to wait for it.

5

11. For me, the decision to marry Karen is an emotional one. Thus, Karen and I have

6 not registered with the state as domestic partners and we do not intend to do so. To me, domestic

7 partnership is a second class status and screams “you are less than us.” A domestic partnership

8 would not give my relationship with Karen the social recognition or meaning it deserves. Neither

9 our families nor the people we encounter on a day-to-day basis would understand what a domestic

10 partnership is, and they would not give our relationship the same respect they would if we were

11 married. A domestic partnership just does not hold the same weight as marriage. When I decided

12 to propose to Karen, I did not think to myself “I want to enter into a second class status with this

13 woman.” I proposed to her for the same reason most heterosexual people get married – because

14 they love the other person and want to be with that person forever.

15

12. Since we currently cannot get married in Nevada, we have taken several steps to

16 safeguard ourselves and one another. We have health care proxies, powers of attorney, and living

17 wills that name the other as the decision-maker should one of become incapacitated; and we have

18 revocable living trusts and life insurance policies that name the other as the beneficiary. We also

19 own our condo as joint tenants with the right of survivorship, and have a joint bank account from

20 which we pay our common expenses.

21

13. On a day-to-day basis, I find it difficult and frustrating to try to explain to others

22 what my relationship status is and who Karen is to me. Oftentimes, when I introduce Karen as

23 “my partner,” I get a puzzled look and end up having to explain that we are in a romantic

24 relationship and not a business relationship. It feels like I am constantly explaining my

25 relationship to others, both in business and social settings. I would love to be able to introduce

26 Karen at a work function or cocktail party and simply say, “this is my wife.” When people ask if

27 I am married, I want to be able to say “yes.”

28

14. I also have grown tired of having to fill out forms that ask my relationship status. I

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used to cross out "spouse" when it appeared on a form and would write in "partner." But, I am so

2 II tired of crossing things out on forms, that I have stopped doing it. Each time I have to fill out a

3 II form, it is a reminder that others view my relationship as less important.

4

IS. Karen and I are both over the age of 18, are not barred from marrying each other

5 II as a result of being too elosely related to each other, and are not married to anyone else. On April

6 II 1,2012, Karen and I went to the Washoe County Marriage Bureau in Reno, Nevada to get a

7 II marriage license. We both had the required identification, and were prepared to pay the required

8 II $60 lee and complete a marriage application. From the moment we arrived, we were treated like

9 II second elass citizens. The security guard would not even let us go through security to obtain a 10 I marriage license, solely because we were two women. It was very clear that, if we had been a II I man and a woman, our experience would have been very different.

12

16. When we walked into the front door of the building that houses the Marriage

13 I Bureau, the security guard asked us the purpose of our visit. I told him that we were there to

14 ! apply lor a marriage license for the two of us to marry each other. The security officer then asked

15 II us, "Do you have a man with you'?" When I said "no" and explained that the two of us wanted to 16 II marry one another, the security guard said that we could not get a marriage license. I asked him il 17 i we could at least go to the Marriage Bureau counter and fill out the marriage license application.

18 II An employee of Defendant Harvey who was standing behind the Marriage Bureau counter

19 responded, "Two women can't apply." The security officer added that the marriage has to "be

20 between a man and a woman." 'Ibe employee behind the counter then told us we could "apply for

21 II a civil partnership with the Secretary of State."

22

17. Our experience in trying to obtain a marriage license, and not even being permitted

23 past the door, was terribly distressing. It is hurtful and devaluing to be denied the same

24 recognition of our relationship as other committed couples.

25

Signed under penalty of perjury under the-laws of the United States this G"'dayof

26 September, 2012. 27 28

,
~
Karen Vibe

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF GREG FLAMER IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

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1

I, Greg Flamer, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my partner Fletcher Whitwell.

3 I am 40 years old and reside in Las Vegas, Nevada. I have personal knowledge of the matters

4 stated in this declaration and could and would so testify if called as a witness.

5

2. Fletcher and I are gay men in a loving, committed relationship. We have been

6 together for more than 14 years and have registered as domestic partners in Nevada.

7

3. I was born in the Bronx, New York, and grew up on Long Island. I have a

8 bachelor’s degree in psychology from the State University of New York at Binghamton and a

9 master’s degree in family therapy from Northwestern University.

10

4. I met Fletcher on March 14, 1998, when I was 25. That day was one of the most

11 important days of my life, along with the day Fletcher and I adopted our daughter, H.R.W.

12 Fletcher was 23 years old when we met and had only recently come out to his family about the

13 fact that he was gay, but he was ready to start a committed relationship. Fletcher has an

14 incredible heart and is a loving, loyal person. The two of us instantly connected because of our

15 mutual interest in sports, travel, music, and, most importantly, family and friends.

16

5. Almost a decade into our relationship, Fletcher and I moved from Chicago to Las

17 Vegas in 2006. Fletcher had an opportunity to advance his career, and I was happy to move so

18 that he could take advantage of that opportunity, although it meant uprooting my own career. In

19 Chicago, I had worked as a mental health counselor conducting family therapy and crisis

20 intervention and, thereafter, as the admissions director at a psychiatric hospital. The move to Las

21 Vegas was hard for me at first because I had difficulty finding work in my field, and I temporarily

22 took a job as a blackjack dealer for a few months. Nonetheless, it was important to me to support

23 Fletcher’s career, and both Fletcher and I are glad to be raising our daughter in Nevada.

24

6. I ultimately secured a position with the Clark County Department of Family

25 Services, where I currently work as a licensing supervisor helping to find homes for abused and

26 neglected children.

27

28

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1

7. On the first day when we were able to do so in 2009, Fletcher and I registered as

2 domestic partners with the State of Nevada. As much as we value the state law rights and

3 responsibilities that come with a domestic partnership, it felt like a half-measure. For example,

4 neither Fletcher nor I “proposed” to each other in order to register as domestic partners as would

5 have happened if we had been getting married, because we knew we were not being allowed to

6 marry. Our inability to marry makes us feel “less than” other people and that our relationship is

7 somehow less valuable than other relationships. Being able to say that we are married would

8 instantly convey the depth and permanence of our relationship in a way that no substitute for

9 marriage can do.

10

8. Fletcher and I have longed to start a family and that dream finally became a reality

11 in 2011, when we welcomed a baby girl, H.R.W., into our family through adoption. To increase

12 our chances of being matched with a birth mother, we used an adoption agency that works

13 nationally. All told, we spent around $60,000 finalizing H.R.W.’s adoption.

14

9. Despite the fact that I am a legal parent to H.R.W., I worry that others may

15 challenge or question my parental relationship to her, particularly given confusion and

16 misunderstanding around whether a same-sex couple in a domestic partnership can both be legal

17 parents to a child in the same way as a married different-sex couple can. I therefore carry a letter

18 with me, drafted by an attorney, explaining that Fletcher and I are in a domestic partnership and

19 that both of us are legal parents of H.R.W. I have never heard of a married couple needing to do

20 the same with respect to explaining their marriage or documenting legal ties to their own children.

21

10. Fletcher and I share the typical responsibilities and joys of parenting a young

22 child: we feed, bathe, and clothe her; we teach her to walk and to recognize different shapes and

23 colors; we play peek-a-boo with her and take her to visit her grandparents; we care for her when

24 she’s sick; and we read her bedtime stories and rock her to sleep at night.

25

11. Fletcher and I wish to marry for our daughter’s sake as well as our own. We

26 worry that, as she grows older, she will be deprived of a sense of normalcy and may feel socially

27 outcast because she will absorb the message she receives from her government that Fletcher and I

28

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ER 211

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF FLETCHER WHITWELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 212

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1

I, Fletcher Whitwell, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my partner Greg Flamer. I am

3 37 years old and reside in Las Vegas, Nevada. I have personal knowledge of the matters stated in

4 this declaration and could and would so testify if called as a witness.

5

2. Greg and I are gay men in a loving, committed relationship. We have been

6 together for more than 14 years and have registered with the State of Nevada as domestic

7 partners.

8

3. I was born in Memphis, Tennessee, and was raised in Mississippi. I have a

9 bachelor’s degree in journalism and business from the University of Mississippi.

10

4. I am currently the Vice President of Media and Digital Activation at a regional

11 advertising firm, which many know for its creation of the “what happens in Vegas stays in

12 Vegas” advertising campaign.

13

5. Greg is one of the smartest, kindest, and most patient people I know. He is a

14 selfless person and always puts others first.

15

6. Both Greg and I share a passion for advancing child welfare. Greg does this for

16 his full-time job with the Clark County Department of Family Services. I serve on the board of a

17 non-profit literacy program that distributes books to schools in southern Nevada. I am also an

18 active member of a foundation through my work that is engaged in an anti-bullying campaign,

19 which was launched in 2010 after a surge in reported suicides among gay teens. The campaign

20 has worked to meet with superintendents about this issue and has donated $1.5 million for radio

21 spots to raise awareness about bullying.

22

7. Greg and I welcomed a daughter to our family last year. Greg and I often

23 celebrate Christmas with my family in Mississippi, where extended family from surrounding

24 areas gather and continue family traditions such as singing karaoke on Christmas eve. We were

25 excited to introduce our daughter to these family traditions and added another stocking to the

26 fireplace mantle for her last year. I also enjoy playing many sports and look forward to the day

27

28

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1 when our daughter is old enough to enjoy these activities too and when I might be able to coach

2 one of her teams.

3

8. One of the things that I dread, however, is the day when we will have to explain to

4 our daughter why her parents are not married. I want her to understand that her family is as

5 valuable and worthy of dignity as any other family in the community, but it will be difficult to

6 reconcile that with the fact the State has barred our family from marriage.

7

9. Our inability to marry affects us in many ways, large and small, but each one is a

8 constant reminder that we are somehow less worthy of equal respect and treatment than others.

9 Every year, my mother writes my brother a check on his wedding anniversary, even though Greg

10 and I have been together the same amount of time as my brother and his wife, and even though

11 my parents visit Greg and I, and now H.R.W., several times a year. The money is not what is

12 important, of course. I mention this example simply to show how our inability to marry causes

13 strangers, friends, and even family to perceive us differently than other families. These moments

14 are hurtful and devaluing and chip away at our sense of equal worth in the community.

15

10. Greg and I are completely committed to each other and to our family, and our lives

16 are intertwined. We have a joint checking account; our house is in both our names; and we have

17 designated each other as beneficiaries for every account on which that is an option, including our

18 life insurance policies. We also hired an estate planning attorney because, among other things,

19 we were concerned that the one of us might be denied hospital visitation to the other in times of

20 medical emergency.

21

11. Greg and I are over the age of 18, are not barred from marrying each other as a

22 result of being too closely related to each other, and are not married to anyone else. On April 4,

23 2012, we appeared in person at the Marriage Bureau for the Office of the Clerk for Clark County

24 in Las Vegas, Nevada to seek a marriage license. We both were prepared to present valid forms

25 of identification to prove our names and ages, pay the required $60 fee, and complete a marriage

26 application. When we took our application for a marriage license to the clerk, we were directed

27 to the Secretary of State’s website to register as domestic partners. When Greg clarified that we

28

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ER 215

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF MIKYLA JEWEL MILLER IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 216

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1

I, Mikyla Jewel Miller, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my wife Katrina (Katie) Miller.

3 I am 30 years old and live in Reno, Nevada. I have personal knowledge of the matters stated in

4 this declaration and could and would so testify if called as a witness.

5

2. I was born in Oakland, California and raised in Redding, California.

6

3. I have a bachelor’s degree in speech pathology and audiology from the California

7 State University, Sacramento. In 2010, I received my law degree from the University of Pacific,

8 McGeorge School of Law. Shortly after graduating I started my own legal practice and began

9 providing services to low-income clients referred to me by a legal aid clinic. In January 2004 I

10 met the love of my life, Katie Miller. She lived in my dormitory and one day asked me if she

11 could borrow a hanger. To make a good impression, I gave her all of my hangers. We began

12 dating in February 2004 after Katie asked me out in sign language in front of the capital building.

13 Later that summer we moved in together.

14

4. I came out to my family in March 2004. My mother admitted that she had a

15 feeling that Katie was more than a friend after I had introduced her to the family. While she and

16 my stepfather were initially excited to meet Katie, my mother’s attitude changed due to influence

17 from her church. She told me that she was very concerned with my “soul.” She began attending

18 “pray the gay away” classes and tried to pressure me to accompany her. Fortunately, my mom’s

19 attitude changed again after her church appointed a new pastor. The pastor asked my mother if

20 Katie would offer me everything a husband could. When she said yes, my pastor told her that she

21 should love Katie. And so she did and does to this day.

22

5. Katie and I knew that we wanted to spend the rest of our lives together, so we

23 planned a commitment ceremony for May 17, 2008. At that time we planned the ceremony,

24 marriage was not yet available for same-sex couples in California but we wanted to celebrate our

25 commitment to each other anyway. At around the same time, the California Supreme Court

26 recognized the right of same-sex couples to marry and the state of California began issuing

27 marriage licenses to same-sex couples. On June 17, 2008, we were thrilled to obtain our marriage

28 license in California. The significance of our marriage was apparent in many ways, especially

ER 217

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1 with respect to my family’s treatment of Katie. Immediately after we were married, they started

2 referring to her as family, which they did not do before, even though they had participated in our

3 May 17, 2008 ceremony. This was one of the reasons why the passage of Proposition 8 a few

4 months later was so devastating—we were heartbroken to see other couples barred from marriage

5 after realizing how transformative it was for us.

6

6. Katie and I moved to Nevada in May 2010. It was upsetting to learn that our

7 marriage is not recognized here, and it has led to concrete problems for us. For example,

8 sometime last February, I drove to the hospital after experiencing chest pain. When my name

9 was called, I told the staff that my wife was en route and asked them to admit her to my room.

10 One of the clerks did a double take when I used the word “wife” and said that they only allow

11 patients to the rooms. I repeated the clerk’s words to the doctor, who informed me that the

12 hospital allows visitors to see patients. When I told him that I felt like I was being discriminated

13 against, he left to retrieve Katie and brought her to see me.

14

7. Because Nevada does not recognize our marriage, Katie and I registered as

15 domestic partners in Nevada on June 17, 2010. But a domestic partnership is not the same as

16 marriage. Far from it. To me, domestic partnership feels like just a piece of paper. Marriage

17 represents something far more significant—a universal recognition of our ability to love and be

18 loved. Katie and I know that we will always be together, and that is why we chose to get married

19 in California. But that commitment to each other is not recognized in Nevada.

20

8. In July, I gave birth to our daughter, A. L. M. Her middle name “Love”—which

21 has been passed down Katie’s family for five generations—symbolizes our desire to raise our

22 daughter in an environment free of intolerance and bias. We do not want the misunderstanding

23 that we have faced to affect her, but it has become difficult to protect her from it. For example, it

24 took a great deal of legwork to arrange for the hospital to designate Katie as A.L.M.’s parent on

25 her birth certificate. After researching the matter, I learned that the hospital was obliged to do

26 this. However, the hospital records staff thought I was wrong and insisted that Katie first had to

27 formally adopt A.L.M.—a step that no spouse would be required to take. I advised them to

28 consult the hospital’s legal department, and after they did so they told me that they would only

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ER 219

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF KATRINA MILLER IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 220

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1

I, Katrina Miller, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my wife Mikyla Jewel Miller.

3 I am 27 years old and live in Reno, Nevada. I have personal knowledge of the matters stated in

4 this declaration and could and would so testify if called as a witness. Although my legal name is

5 “Katrina,” I go by the name “Katie.”

6

2. I was born in Pacific Grove, California and lived there until I was 18. My father

7 passed away when I was a young child, but I had (and have) a great relationship with my mother.

8 She and my grandmother raised me.

9

3. I have a bachelor’s and a master’s degree in English from the California State

10 University, Sacramento. In 2010, I started a five-year doctoral program in English with a

11 specialization in rhetoric and composition at the University of Nevada, Reno. I also work part-

12 time as a teaching assistant.

13

4. I can say with certainty that I was born gay. It was not a choice for me. I realized

14 in middle school that I did not have the same crushes my friends who were girls had. In high

15 school I secretly dated a girl. Eventually, I began coming out to friends, and in March 2004 I

16 came out to my family.

17

5. In January 2004, I met the woman who would become the “one” in my life,

18 Mikyla Jewel Weber. We met while living in the same dormitory. I was smitten with her and we

19 began dating in February 2004, after I asked her out in sign language in front of the capital

20 building in Sacramento. That summer we moved in together.

21

6. By August 2005, Mikyla and I had grown extremely close. We lived together,

22 bought a car and a dog, and started a joint bank account. We also began wearing monogamy

23 rings. Finally, I bought her a diamond ring and proposed to her on New Year’s Day 2007.

24

7. Mikyla and I had a commitment ceremony in California on May 17, 2008,

25 attended by friends and family. At around the same time, the California Supreme Court

26 recognized the right of same-sex couples to marry and the state of California began issuing

27 marriage licenses to same-sex couples.

28

8. On June 17, 2008, we obtained our marriage license, a few weeks after the

ER 221

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1 California Supreme Court recognized the right of same-sex couples to marry in the state. The

2 impact of our marriage on our family was immediately apparent. While Mikyla’s mother and

3 stepfather had considered me a part of their family, it wasn’t until after our marriage that they

4 began publicly referring to me as family by introducing me to others as their daughter-in-law.

5

9. Mikyla and I moved to Nevada in May 2010 and were upset to learn that our

6 marriage would not be recognized here. Instead, we registered as domestic partners with the state

7 the following month. But that is not the same. We have embraced Nevada as our home, but we

8 are pained by constant reminders that we are second class citizens because the state will not

9 recognize our marriage. These reminders became more visceral after Mikyla became pregnant

10 and gave birth to our child, A.L.M., in July 2012. People have questioned my status as a parent

11 and often consider me A.L.M.’s stepparent rather than her mother. Some have challenged the

12 veracity of my claim that Mikyla is my wife. I try to treat these moments as educational

13 opportunities, but it can be frustrating and tiresome. When filling out medical and other forms,

14 Mikyla and I cannot state that we are married. We would check the domestic partnership box, but

15 it usually does not appear on these forms.

16

10. As another example, last February, Mikyla had to go to the hospital after

17 experiencing chest pain at work. I rushed to the hospital she called me, but the staff refused to let

18 me see her. Mikyla finally had to ask the doctor to intercede on our behalf. It is terribly

19 distressing that I was prevented from seeing my wife during a medical emergency. Visitors are in

20 fact allowed to see patients and the staff knew this. I do not believe that this would have

21 happened if our marriage was recognized in Nevada.

22

11. Another incident arose when I applied for financial aid at my university. On my

23 financial aid forms, I designated Mikyla as the person in charge of our household finances, but

24 the school initially declined to accept the forms because our marriage is not recognized in

25 Nevada. After a long argument with the staff, the cashier’s office finally accepted the forms.

26

12. Because of the marriage ban, I feel like my voice does not matter. I feel like other

27 people who have decided that my relationship with Mikyla does not deserve to be considered a

28 marriage are controlling my fate. I want to be in control of my own destiny by being recognized

ER 222

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ER 223

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF ADELE NEWBERRY IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 224

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1

I, Adele Newberry (formerly known as Adele Terranova), hereby declare and state as

2 follows:

3

1. I am one of the Plaintiffs in this lawsuit along with my partner Tara Newberry. I

4 am 31 years old and reside in Las Vegas, Nevada. I have personal knowledge of the matters

5 stated in this declaration and could and would so testify if called as a witness.

6

2. Tara and I are lesbian individuals in a loving, committed relationship. We have

7 been together for 7 years and have registered as domestic partners in Nevada.

8

3. I was born in Boston, Massachusetts and have lived in Nevada for approximately

9 5 years. I have a bachelor’s degree in criminology and psychology from University of

10 Massachusetts Amherst. I also obtained a certificate for fraud examination and accounting from

11 the University of California, San Diego. I work as the office manager at the Connaghan

12 Newberry Law Firm.

13

4. I met Tara in 2005 at a dinner organized by a mutual friend. We hit it off and

14 began meeting for lunch. Within months we were officially dating and we have been together

15 ever since. One thing that clued me in from the beginning that Tara was a warm and wonderful

16 person was how loving she was toward my dog. I found that very endearing.

17

5. Tara and I registered as domestic partners in California in October 2006. When

18 we filled out the domestic partnership paperwork, we went to a postal annex to get the forms

19 notarized. The notary asked us what kind of business we were opening up. This is just one

20 example of how domestic partnership is viewed differently from marriage -- I’ve never heard of

21 marriage ceremony being confused with starting a business. Domestic partnership was important

22 to us regardless, since it was all we could obtain at the time.

23

6. Tara and I moved to Nevada in 2007, and then traveled back to California to marry

24 in San Diego on October 25, 2008. We chose to get married in 2008 to demonstrate our love for

25 each other through the universally understood bonds of marriage. We celebrated the occasion

26 with friends.

27

7. Because Nevada does not recognize our marriage, and therefore did not afford us

28 with any of the recognition, rights or responsibilities of marriage, we registered as domestic

ER 225

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1 partners in Nevada when it became available in 2009.

2

8. Our lives currently revolve around our two-and-a-half year old son, E.D.N., and

3 our nine-month old daughter, E.A.N. I stayed home with E.D.N. until he started preschool at

4 eighteen months old. We took him out of preschool when his sister, E.A.N., was born earlier this

5 year. We returned him to school when she was approximately six weeks old, but he brought

6 home a virus that made her very ill. When that happened, we decided to keep the children at

7 home. Tara and I split our time between work and taking care of our children, with part-time help

8 from a nanny.

9

9. I recently changed my last name from Terranova to Newberry. Tara and I wanted

10 a single family surname for easy recognition of our parental and family relationship. Having the

11 same last name as our children is important to me so that I am not questioned when I am picking

12 up the kids from school or going to the hospital. In the past, I have been asked why I have a

13 different last name than my children and school officials assumed that the E.D.N. was Tara’s

14 child because he had Tara’s last name.

15

10. We are often forced to answer questions that generally are never asked of

16 different-sex spouses. When we took E.A.N. to the emergency room in February, hospital staff

17 asked “which one of you is the mom?” We responded that we are both E.A.N.’s mother. In

18 response, staff asked “which one is the real mom?” If we could tell hospital staff that we are

19 married, our family structure and relationship to our children would be less subject to question

20 and disrespect.

21

11. Tara and I are financially interdependent. We have a trust, pour-over will,

22 financial power of attorney, and durable power of attorney for medical decisions. We took these

23 steps to protect our family and children as soon as E.D.N. was born. If our marriage was

24 recognized in Nevada, we would not have had to take these steps because these protections and

25 responsibilities would be secure and recognized in the state.

26

12. We have encountered other examples of disrespect for our domestic partnership.

27 For example, we were denied a marriage-related discount by our insurance company for our

28 family health coverage. This means that we have had to pay higher premiums than if our

ER 226

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ER 227

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF TARA NEWBERRY IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 228

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1

I, Tara Newberry, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my partner Adele Newberry

3 (who was previously known as Adele Terranova). I am 37 years old and reside in Las Vegas,

4 Nevada. I have personal knowledge of the matters stated in this declaration and could and would

5 so testify if called as a witness.

6

2. Adele and I are lesbian individuals in a loving, committed relationship. We have

7 been together for 7 years and have registered as domestic partners in Nevada.

8

3. I was born in Shreveport, Louisiana and have lived in Nevada for approximately 5

9 years. I have a bachelor’s degree in criminal justice and history. From 1997 until 2004, I worked

10 as a police officer. I then attended California Western School of Law and graduated with a J.D.

11 in 2006. I currently work at a small law firm in Las Vegas, Connaghan Newberry Law Firm.

12

4. I am involved in the community. I have volunteered with Trial by Peers since

13 2007. Trial by Peers is a diversion program for first-time juvenile offenders. The attorneys and

14 jurors are all peers. I act as a mentor and sometimes as a judge. I am also active in a children’s

15 play group for same-sex couples’ families called “We are Family.” I also act as a state-appointed

16 mediator through a program with the Nevada Supreme Court.

17

5. I met Adele in 2005 at a dinner organized by a mutual friend. We began dating

18 shortly after that and we have been together continuously ever since. Adele is the nicest person I

19 have ever met. Her incredible kindness is part of what initially drew me to her.

20

6. Adele and I registered as domestic partners in California in October 2006. We

21 moved to Nevada in 2007, and then traveled back to California to marry in San Diego on October

22 25, 2008, while that was legally permissible there. When domestic partnership became available

23 in 2009, we also registered as domestic partners in Nevada.

24

7. Our lives currently revolve around our two-and-a-half year old son, E.D.N., and

25 our nine-month old daughter, E.A.N. Although registered domestic partners are presumed the

26 parents of children born into the relationship, when E.D.N. was born a hospital social worker

27 insisted that “the dad” had to fill out the declaration of paternity and refused to let me be listed.

28 Because of this, E.D.N.’s birth certificate was returned from the State with a blank for the second

ER 229

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1 parent’s name. It took a year-and-a-half to get a corrected certificate listing me as the second

2 parent. During this process, I had to complete another declaration of paternity form, although I

3 had to alter it by crossing out various provisions to make references to me in it accurate. The

4 State returned the form, insisting that it could not be processed as altered. It was a struggle to get

5 the State to accept the form as modified. I eventually had to point out that I would be required to

6 perjure myself on the form if I was not able to modify it. The entire process was demoralizing. I

7 believe that, if Nevada treated us as the married couple we are rather than forcing us to be

8 considered in a novel, little understood status, none of this would have happened.

9

8. There were similar issues when E.A.N. was born earlier this year. The hospital

10 social worker agreed that I could be listed on the birth certificate, but I had to provide a copy of

11 our domestic partnership paperwork and other documentation showing that Adele and I live at the

12 same address. I do not believe that I would have been required to provide that same

13 documentation if our marriage was recognized in Nevada. In order to comply, I had to leave the

14 hospital shortly after the birth of my daughter to bring back the demanded paperwork. Once I did

15 that, my name was put on E.A.N.’s birth certificate.

16

9. This is not the only example of our relationship with our children being

17 disrespected. We are sometimes asked by medical and government personnel which one of us is

18 the “real” mother and other questions that are not generally asked of different-sex, married

19 couples. As another example, E.A.N. was sick and had to be taken to the emergency room in

20 February 2012. The hospital assumed that I was the biological mother (probably because the

21 children had my last name -- Newberry -- and Adele had not yet changed her name), and were

22 told that only one of us could go into the emergency room with E.A.N. It was only after we

23 explained that we are both E.A.N.’s legal parents because we are registered domestic partners that

24 the staff let us both into the emergency room. These types of situations cause me a lot of concern

25 and so I feel a particular sense of urgency to have our marriage recognized. I believe that it will

26 help reduce this and other sorts of confusion if Adele and I can say that we are married.

27

10. I recently adopted both our children. Adopting both children was very important

28 to me because I wanted to be sure that I would be recognized as a legal parent even if we were

ER 230

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ER 231

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF CAREN CAFFERATA-JENKINS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 232

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1

I, Caren Cafferata-Jenkins, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with my partner Farrell Cafferata-

3 Jenkins. I am 54 years old and reside in Carson City, Nevada. I have personal knowledge of the

4 matters stated in this declaration and could and would so testify if called as a witness.

5

2. Farrell and I are lesbian individuals in a loving, committed relationship. We have

6 been together for more than 15 years and have registered as domestic partners in Nevada.

7

3. I was born in Philadelphia, Pennsylvania and have lived in Nevada for

8 approximately 25 years. I have a bachelor’s degree in parks and recreation from Penn State, a

9 master’s degree in arts administration from Golden Gate University, and a law degree from

10 Golden Gate University School of Law. I am currently the Executive Director of the Nevada

11 Commission on Ethics.

12

4. Both Farrell and I believe that it is important to give back to the community in

13 which we are raising our two children, and we enjoy doing so. We are both on the board of a

14 statewide advocacy and resource center for those who are deaf and hard of hearing. I also

15 previously served as the president of the Carson City Court Appointed Special Advocates, which

16 works on behalf of abused and neglected children, and as the vice-chairman of the Carson City

17 Library Board of Trustees and as an officer of the First Judicial District Bar Association.

18

5. I met Farrell 15 years ago at a potluck. As an excuse to get to know her better, I

19 hired Farrell to help with my landscaping; and she, in turn, took longer than necessary pulling

20 weeds so the two of us could spend more time together. We have been together ever since.

21

6. We had our first son in 2003 and then welcomed a second son in 2005. Farrell and

22 I traveled to California to marry in 2008 both because of our love for each other and our desire to

23 unite our entire family, including our children, through the universally understood bonds of

24 marriage. Our marriage in California possessed and imparted a legitimacy that was absent from

25 both a prior commitment ceremony that we held in Nevada in 2002, as well as our registration as

26 domestic partners in Nevada in 2009. But that legitimacy evaporated once we returned to

27 Nevada, because Farrell and I are deemed unmarried in our home state, which makes us feel like

28 outsiders in our own community, undeserving of equal respect and treatment.

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1

7. Farrell and I changed our last names to Cafferata-Jenkins—a hybrid of both our

2 last names—because, among other reasons, we wanted to convey to others that we are a family.

3 Unlike different-sex married couples, however, registered domestic partners do not have access to

4 the same streamlined process for one partner to adopt the other’s last name. Different-sex

5 spouses can complete a name change through the federal Social Security Administration and the

6 Nevada Department of Motor Vehicles with a marriage certificate, but domestic partners must

7 seek and obtain a court-ordered name change. Farrell and I undertook this expensive and time-

8 consuming process. The name change required us to file verified petitions that we were not

9 felons and that we were not attempting to defraud creditors. We also had to publish notice of our

10 requested name change in the newspaper. This was a demeaning reminder of how lesbian and

11 gay couples are treated as inferior to heterosexual couples: while heterosexual couples’ marriages

12 are profiled in the society pages, lesbian and gay couples who merely want to change their names

13 to unite their family must publicly attest that they are not criminals. We subsequently learned,

14 however, that same-sex couples who married in California need not go through this process,

15 which is an example of the confusion that same-sex couples in Nevada face even for something as

16 seemingly simple as a name change and that could be avoided if they were permitted to marry or

17 have their marriages recognized. Same-sex registered domestic partners in Nevada, who are not

18 married elsewhere, must still go through this process to change their names.

19

8. For the vast majority of the time that I have worked as a state employee, and until

20 very recently, I was excluded from receiving the same subsidized family health care coverage that

21 the State provides to different-sex spouses of state employees. Although the State allowed its

22 employees to access domestic partner health coverage, those employees were required to pay the

23 entire premium, whereas spouses of state employees received subsidized coverage. Earlier this

24 year, the state agency in charge of public employee benefits, the Public Employees’ Benefits

25 Program Board, agreed to provide domestic partners with the same subsidy as it provides to 26 spouses of state employees.1 But, for several years, I paid hundreds of dollars more per month for

27 1 This decision is reflected in the March 29, 2012 action minutes of the Public Employees’

28

Benefits Program Board, which are available at http://www.pebp.state.nv.us/brdpkts/3-2912ActionMinutes.pdf (last visited Sept. 3, 2012).

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ER 235

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF FARRELL CAFFERATA-JENKINS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

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1

I, J. Farrell Cafferata-Jenkins, hereby declare and state as follows:

2

1. I am one of the Plaintiffs in this lawsuit along with Caren Cafferata-Jenkins. I am

3 49 years old and reside in Carson City, Nevada. I have personal knowledge of the matters stated

4 in this declaration and could and would so testify if called as a witness.

5

2. I was born in Portland, Oregon, and I was raised in Reno, where my father was

6 born. Our family has deep ties to Nevada, and my grandmother was the first woman elected to

7 federal office in Nevada.

8

3. I have a bachelor’s degree in general studies from the University of Nevada at

9 Reno and recently obtained an associate’s degree in deaf studies.

10

4. Both Caren and I believe it is important to be engaged in our community. In

11 addition to my work on behalf of the deaf community, described below, I am also involved in the

12 Parent Teachers Association at our children’s school, and I formerly served on the Board of the

13 Nevada AIDS Foundation.

14

5. Caren and I have two boys, ages 8 and 7. Our older son was diagnosed with

15 autism at age 2 and became non-verbal for a period of time. His therapist encouraged sign

16 language as a way to communicate with him, and so I took sign language classes at a local

17 college. Our son no longer needs to sign to communicate, but I am still active in the deaf

18 community. I founded, and am currently the president of, the Nevada Academy of Sign

19 Language. Caren and I also serve on the board of a statewide advocacy and resource center for

20 those who are deaf and hard of hearing.

21

6. Caren and I met 15 years ago at a potluck, at which Caren had arrived on a

22 motorcycle. When Caren took off her helmet, and I locked eyes with her, there was an instant

23 “zing.” I was doing landscaping work at the time and gave Caren my business card; when I got

24 home from the potluck, there was already a voicemail message from Caren.

25

7. Both Caren and I are Jewish and, in 2002, we held a commitment ceremony in

26 Reno that incorporated elements of our faith. Surrounded by loved ones, we committed our lives

27 to each other under a red velvet chuppah, or canopy, signifying the home that we wanted to build

28 together. However, we felt that we could not accurately call it a “wedding” because same-sex

ER 237

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1 couples could not marry in Nevada and it would therefore be inaccurate for us to use the word

2 “wedding” on our invitations to friends and family. Instead, we had to explain on our invitations

3 that the ceremony was instead a b’rit ahu’vah, and then define that the phrase, in Hebrew, meant

4 “covenant of love.” It was a painful reminder—in the midst of what should have been a joyful

5 occasion—that we were not equal to other couples and could not use the same vocabulary to

6 express our love and commitment to one another. It was also a bittersweet time for us because

7 just a few days after our ceremony, which took place on October 27, 2002, the Constitution of the

8 State of Nevada was amended to exclude same-sex couples from marriage, even though there was

9 already a statute that did the same thing.

10

8. Caren and I traveled to California to marry in 2008, during the brief window of

11 time before the passage of Proposition 8 when it was possible for same-sex couples to marry

12 there. Because of that experience, we know first-hand how marriage can change the way we and

13 others view our relationship—but we also know first-hand how hurtful it can feel for that

14 marriage to be disregarded. After returning to our home state of Nevada, we felt as though the

15 State “unmarried” us and that we had to start over from scratch. Although we subsequently

16 registered as domestic partners in Nevada, it felt like consigning ourselves to an inferior, second-

17 class status, compared to being treated as married.

18

9. Marriage has always been important in our family: both Caren’s parents and my

19 parents have been married for more than 50 years, and Caren and I long for the opportunity to

20 follow in our parents’ footsteps and celebrate a golden anniversary.

21

10. Recognition of our marriage would also be important for our children. To take just

22 one example, Caren and I experience difficulty identifying to others that both of us are parents to

23 our children, because school forms often only envision different-sex married parents.

24

11. Caren and I are financially interdependent and we have also taken as many steps as

25 we can, through private contract, to protect our family in the event of death or disaster. We have

26 powers of attorney, a family trust, and pour-over wills, which were costly to obtain. But no

27 amount of estate planning can replicate the security that uniquely flows from marriage, which

28 everyone understands and respects.

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ER 239

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF SARA GEIGER IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

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1

I, Sara Geiger, hereby declare and state as follows:

2

1. I am one of the plaintiffs in this lawsuit along with my partner Megan Lanz. I am

3 27 years old and reside in Las Vegas, Nevada. I have personal knowledge of the matters stated in

4 this declaration and could and would so testify if called as a witness.

5

2. Megan and I are lesbian women in a loving, committed relationship. We have

6 been together for seven years. We are married in Canada and are registered as domestic partners

7 in Nevada.

8

3. I was born in Atlantic City, New Jersey, and grew up in Marietta, Georgia. I

9 moved to Nevada when I was 17 and have lived here ever since. Both of my parents now live in

10 Nevada as well. Megan, our daughter, and I see my mother on most Tuesdays and Wednesdays,

11 and my father watches our daughter on Thursdays. My family frequently spends weekends with

12 my parents and siblings at my father’s house on Lake Mohave.

13

4. I received my bachelor’s degree in music performance from the University of

14 Nevada, Las Vegas, in 2007. After college, I taught high school band for the Clark County

15 School District. I really enjoyed teaching and decided to pursue additional education so I could

16 teach at the College of Southern Nevada (“CSN”). This past May, I received my master’s degree

17 in music performance from UNLV. I currently teach two music appreciation classes at CSN, and

18 I also work at a coffee shop.

19

5. I met Megan at a mutual friend’s birthday party in September of 2005. She was

20 warm and inviting, and I was drawn to what I now call her “five-part smile”: first, the corners of

21 her lips start to curl up; then her lips part and you can see a little bit of her teeth; her eyes squint;

22 her lips expand into a full-blown smile; and then her tongue sticks a tiny bit between her teeth.

23 The night we met, we didn’t really talk about anything of substance, and I don’t know that I was

24 listening that much because I was just staring at her the whole time. I had a feeling I’d never felt

25 before. Someone took my chair, and I sat on the ground so I could continue talking to her.

26

6. Soon after we started dating in November of 2005, I knew a relationship couldn’t

27 get any better than this. Megan and I can talk with each other about anything, and we often spend

28 hours and hours talking without even realizing the time has gone by. When we disagree, our

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1 feelings are never hurt because we respect each other and know the best ways to communicate

2 with one another. Megan is one of the most selfless and giving people that I know, and she is an

3 incredibly talented musician. She puts so much passion into everything she does, even if she’s

4 not getting something out of it. For example, she’ll continue working with students after their

5 private lessons have ended so that her students can finish a piece of music or so they can finish a

6 discussion. She doesn’t get paid for that time, but she does it because she loves teaching and she

7 wants her students to succeed.

8

7. I proposed to Megan in November of 2006, and we got married in Vancouver,

9 Canada, in June of 2007. It was important for us to get married, once we knew that marriage was

10 available to us in Canada, rather than to voluntarily enter into a second-class status in another

11 state, such as registering as domestic partners in California. The word “partnership” makes it

12 sound like we have entered a business transaction. I don’t want to downgrade how I feel about

13 Megan.

14

8. We talked about having kids around the time we got married, and I got pregnant

15 through donor insemination in the spring of 2008. I loved being pregnant (up until the last two

16 weeks), and we couldn’t wait to become parents.

17

9. Megan was a superhero during my 22 hours of labor. I was in so much pain that I

18 couldn’t do anything but breathe, and I don’t think I could even speak to her the entire time.

19

10. Because our marriage is not recognized in Nevada and because domestic

20 partnerships were not available until after J.G.L. was born, Megan does not have an automatically

21 recognized status as the legal parent of J.G.L.

22

11. As Megan told me later, while we were in the recovery room, a nurse reminded

23 Megan that she wasn’t entitled to be there because the staff did not see her as immediate family.

24 Megan is such an integral part of my life and of our daughter’s life, and I couldn’t believe that

25 someone would just dismiss her like that. It was agonizing for me just to hear what had happened

26 to her, particularly because I was powerless to change it — I can’t imagine being in Megan’s

27 shoes during that conversation.

28

12. J.G.L. is now 3 ½ years old, and she surprises us every day with how much she

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1 knows about the world. She loves anything musical, and she makes up her own rhyming songs.

2 She knows when she is being funny and she gets proud of herself when she makes us laugh. She

3 is very empathetic — if she sees that I have a bruise or a cut, she’ll say “Oh, poor girl!” and give

4 me a kiss. J.G.L. reads books that teach her about all kinds of families (single mom, multi-racial

5 parents, grandparents raising kids, etc.), and when we ask her how she feels about having a

6 mommy and a momma, she says, “It makes me so happy.” We worry, however, that as she grows

7 older and learns that we cannot be recognized as married in Nevada, she will absorb a message

8 that the state sees her family as less worthy than others. We want her always to feel proud of our

9 family, and that’s one of the biggest reasons that being recognized as married is so important to

10 us.

11

13. Although Megan and I feel strongly that registering as domestic partners does not

12 capture the full extent of our love, commitment, and devotion to each other, we registered in

13 Nevada as soon as it was permissible, in 2009. Our marriage is not recognized in Nevada and we

14 wanted the rights and responsibilities that came with entering a legal status in our home state. We

15 also wanted to make sure that our daughter was protected to the fullest legal extent possible, and

16 we wanted to be “counted” among partnered gay couples in Nevada.

17

14. Every time Megan and I have to fill out a form that requires us to check “single” or

18 “married,” it’s a hassle. We are never sure how to list our names, and we dread the explaining

19 that is often required when we turn in forms.

20

15. We know that Megan might not be recognized as a parent at doctor’s offices or,

21 eventually, at schools. Once, J.G.L. needed to go to the doctor’s office while Megan was

22 watching her. We didn’t want to risk Megan being turned away, so I left work to bring J.G.L. to

23 the doctor.

24

16. I believe that marriage is viewed as a more stable and more final institution than

25 domestic partnership. In stark contrast to what most people envision when they think about their

26 wedding day, you can notarize your domestic partnership form at a shipping outlet like PostNet,

27 and, in many instances, it can be easily dissolved. People often dismiss the relationship as “just a

28 domestic partnership.” My relationship with Megan means so much more than that.

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF PLAINTIFF MEGAN LANZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

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1

I, Megan Lanz, hereby declare and state as follows:

2

1. I am one of the plaintiffs in this lawsuit along with my partner Sara Geiger. I am

3 31 years old and reside in Las Vegas, Nevada. I have personal knowledge of the matters stated in

4 this declaration and could and would so testify if called as a witness.

5

2. Sara and I are lesbian women in a loving, committed relationship. We have been

6 together for seven years. We are married in Canada and are registered as domestic partners in

7 Nevada.

8

3. I was born in Denver, Colorado, and I have lived in Las Vegas, Nevada, for the

9 past eight years. I received a bachelor’s degree from the University of North Texas in 2004 and a

10 master’s in 2006 and a doctorate in 2010 from the University of Nevada, Las Vegas (“UNLV”).

11 All of my degrees are in music performance.

12

4. I teach private flute lessons to children and adults across Las Vegas as well as

13 classroom lessons at the College of Southern Nevada. I also perform in local orchestras. For

14 example, I am currently performing in the pit orchestra of the touring musical Wicked, which is

15 playing a six-week run at the Smith Center in Las Vegas.

16

5. In the fall of 2005, Sara and I were both attending UNLV. I had seen her around

17 campus, and I thought she was adorable. My friend from school was having a birthday party in

18 September, and I asked her to invite Sara. Sara and I ended up talking all night, and the

19 conversation flowed seamlessly. Over the next few weeks, we spent a lot of time together. I

20 enjoyed her company, no matter what we were doing. She eventually told me she also was gay,

21 and soon after we started dating.

22

6. Sara and I have complementary personalities. When one of us is feeling stressed

23 out, the other tries to be everything that that person needs. During graduate school, I was often

24 uptight, and Sara provided the comic relief. Sara recently started teaching, so now she is

25 experiencing more stress and I am more laid back. Sara is a great listener and friend, and she’s

26 extremely trustworthy. We both have strong values and believe in the importance of honesty and

27 responsibility.

28

7. On June 15, 2007, Sara and I got married in Vancouver, Canada. Soon after, we

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1 talked about having children. One day we were standing in the bathroom both brushing our teeth,

2 and I envisioned a child walking through the door to join us at the sink — I just couldn’t wait. I

3 longed to be a parent and mentor to a child, just like my parents were to me.

4

8. I was so thrilled when Sara gave birth to our daughter J.G.L. in January of 2009.

5 The technical legal status of my relationship with my daughter was the last thing on my mind on

6 that incredible day. But then a nurse in the recovery room said words to the effect of, “You

7 know, we don’t have to let you stay here, but we’re just going to look the other way.” I couldn’t

8 understand why this nurse would taint something so special by saying that — it had no effect on

9 the ultimate outcome, but it was hurtful and stressful at a time when we were supposed to be

10 celebrating. If Nevada recognized Sara and me as married at the time our daughter was born, I

11 would have automatically been recognized as our daughter’s parent, and this hurtful incident

12 would not have occurred.

13

9. J.G.L. calls me “Momma” and calls Sara “Mommy.” Our work schedules allow us

14 to spend a good deal of time with J.G.L., and we are fortunate to have babysitting help from our

15 friends and family for the time when Sara and I have performances or meetings at the same time.

16 Although she is not yet four years old, J.G.L. is developing a great sense of imagination, and Sara

17 and I have so much fun watching her play creatively. She has wide range of interests, from

18 Tinkerbell to pirates, from Beauty and the Beast to Star Wars.

19

10. Several months after J.G.L. was born, Nevada began allowing domestic

20 partnerships. Sara and I entered into a domestic partnership on the first day it was permitted in

21 October of 2009. But since J.G.L. was born before domestic partnerships were available, and, as

22 noted above, since our Canadian marriage is not recognized in Nevada, I was not considered a

23 parent to our daughter when she was born, or even after we registered as domestic partners. Sara

24 and I have thought about me adopting J.G.L. as a second parent as is permitted by Nevada law,

25 but the process costs around $3,000, and, at this point in our careers, we cannot afford it. We also

26 are frustrated that the state’s refusal to recognize our marriage means having to divert resources to

27 have our child legally recognized as ours — different-sex spouses can put that money toward

28 summer camp for their children or a college fund.

ER 247

- 3 -

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ER 248

Appendix – Page 70

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

DECLARATION OF TARA L. BORELLI IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 249

Appendix – Page 71

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1

I, Tara L. Borelli, hereby declare and state as follows:

2

1. I am a staff attorney with Lambda Legal Defense and Education Fund, Inc., and

3 co-counsel of record for the plaintiffs in this matter. I am licensed to practice law in the States

4 of Washington and California and was admitted pro hac vice to practice before this Court. I

5 make this declaration of my own personal knowledge and, if called as a witness, could and

6 would testify competently to the matters stated herein.

7

2. Attached as Exhibit A is a true and correct copy of a document bearing the logo

8 of the Coalition for the Protection of Marriage’s “Vote Yes on 2” campaign to bar marriage for

9 same-sex couples by amending Nevada’s constitution. I retrieved this document from an online

10 repository of historical documents relating to the campaign on September 5, 2012.

11

3. Attached as Exhibit B is a true and correct copy of a letter dated August 2002

12 bearing the logo of the Coalition for the Protection of Marriage. This document was retrieved

13 from a collection of historical documents maintained by the library of the University of Nevada,

14 Las Vegas.

15

16

Signed under penalty of perjury under the laws of the United States this 7th day of

17 September, 2012.

18

/s/ Tara L. Borelli

19

Tara L. Borelli

20

21

22

23

24

25

26

27

28

ER 250

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Exhibit A

ER 251

Appendix – Page 73

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ER 252

Appendix – Page 74

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Exhibit B

ER 253

Appendix – Page 75

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ER 254

Appendix – Page 76

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ER 255

Appendix – Page 77

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ER 256

Appendix – Page 78

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1

CERTIFICATE OF SERVICE

2 I hereby certify that I have electronically filed the foregoing with the Clerk of the Court
3 for the United States District Court, District of Nevada by using the CM/ECF system on
4 September 10, 2012. All participants in the case are registered CM/ECF users, and will be
5 served by the CM/ECF system.
6

7

By: /s/ Sklar Toy

.

8

Sklar Toy

3325 Wilshire Boulevard, Suite 1300

9

Los Angeles, CA 90010

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ER 257

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-5 Page: 221 of 22(1409 of 928)

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Tara L. Borelli

.

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-6 Page: 1 of 190(410 of 928)

Case No. 12-17668

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and
COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge.

PLAINTIFFS-APPELLANTS’ EXCERPTS OF RECORD VOLUME 3 OF 5

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600

Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY &
MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes
Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-6 Page: 2 of 190(411 of 928)

INDEX TO EXCERPTS OF RECORD

Volume 1 of 5

Date Filed

Document Description

12/3/2012 Judgment in a Civil Case

Dist. Ct. Dkt. No.
103

ER Pg. No.
1

11/26/2012 Order on Motion to Dismiss and Cross-Motions for Summary Judgment

102

2

Volume 2 of 5

Date Filed

Document Description

12/3/2012 Plaintiffs’ Notice of Appeal (exhibits omitted)

Dist. Ct. Dkt. No.
104

ER Pg. No.
43

11/08/2012 Plaintiffs’ Motion for Leave to File Summary

100

46

Judgment Reply Brief

.

.

Exhibit A – Plaintiffs’ Brief in Reply to the 100-1

50

Coalition’s Opposition

.

.

Exhibit B – Declaration of Michael Lamb, 100-2

56

Ph.D.

.

.

Exhibit 1 – Article

66

Exhibit 2 – Trial transcript excerpts

71

Exhibit C – Declaration of Tara Borelli

100-3

85

10/25/2012 Supplemental Declaration of Michael Lamb,

98-1

131

Ph.D. in Support of Plaintiffs’ Summary

Judgment Opposition

10/25/2012 Supplemental Declaration of Letitia Anne Peplau, Ph.D. in Support of Plaintiffs’ Summary Judgment Opposition

98-2

139

i

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ID: 8828038 DktEntry: 20-6 Page: 3 of 190(412 of 928)

Volume 2 of 5, continued

Date Filed

Document Description

9/10/2012

Plaintiffs’ Request for Judicial Notice in Support of Plaintiffs’ Motion for Summary Judgment
Exhibit A – Pages from Carson City ClerkRecorder website
Exhibit B – Page from Clark County Clerk website
Exhibit C – Ballot results for Question 2 (2000)
Exhibit D – Ballot results for Question 2 (2002)
Exhibit E – Excerpt from Social Security Administration manual
Exhibit F – Page from Nevada DMV website

Dist. Ct. Dkt. No.
87

ER Pg. No.
143 . .
148 .
157 .
159 .
165 .
170 .
174

Appendix to Plaintiffs’ Motion for Summary

86-1

177

Judgment, Vol. 1

.

Declaration of Beverly Sevcik

179

Declaration of Mary Baranovich

184

Declaration of Theodore Small

189

Declaration of Antioco Carrillo

194

Declaration of Karen Goody

199

Declaration of Karen Vibe

203

Declaration of Greg Flamer

208

Declaration of Fletcher Whitwell

212

Declaration of Mikyla Miller

216

Declaration of Katrina Miller

220

ii

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ID: 8828038 DktEntry: 20-6 Page: 4 of 190(413 of 928)

Date Filed 9/10/2012

Volume 2 of 5, continued

Document Description
Declaration of Adele Newberry Declaration of Tara Newberry Declaration of Caren Cafferata-Jenkins Declaration of Farrell Cafferata-Jenkins Declaration of Sara Geiger Declaration of Megan Lanz Declaration of Tara Borelli
Exhibit A – Campaign flyer relating to Question 2 Exhibit B – Letter from the Coalition for the Protection of Marriage relating to Question 2 (August 2002)

Dist. Ct. Dkt. No.
86-1

ER Pg. No.
224 228 232 236 240 245 249 251
. 253

Volume 3 of 5

Date Filed

Document Description

9/10/2012 Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 2 Declaration of Nancy F. Cott, Ph.D. Declaration of Letitia Anne Peplau, Ph.D. Declaration of M.V. Lee Badgett, Ph.D Declaration of George Chauncey, Ph.D.

Dist. Ct. Dkt. No.
86-2

ER Pg. No.
258

260 302 349 389

iii

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-6 Page: 5 of 190(414 of 928)

Date Filed

Volume 4 of 5 Document Description

9/10/2012

Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 3
Declaration of Gary M. Segura, Ph.D.
Declaration of Michael Lamb, Ph.D.

Dist. Ct. Dkt. No.
86-3

ER Pg. No.
442

444 498

8/10/2012 Transcript of Motion Hearing

69

640

Date Filed

Volume 5 of 5 Document Description

5/18/2012 Answer of Amy Harvey, Washoe County Clerk

5/18/2012 Answer of Diana Alba, Clark County Clerk

4/10/2012 Complaint for Declaratory and Injunctive Relief (minor names redacted)

--

U.S. District Court Docket Sheet

Dist. Ct. Dkt. No.
35

ER Pg. No.
673

34

691

1

695

--

725

iv

CCasaes:e122:-1127-6c6v8-0051708/-1R8C/2J0-1P3AL DoIDcu: m88e2n8t 08368-2 DFkilteEdn0tr9y/:1200/1-62 PPaaggee1: 6ofo1f 81490(415 of 928)

1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

APPENDIX TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, VOLUME 2

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 258

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1

APPENDIX, VOLUME 2

2

3 DECLARATION OF NANCY F. COTT, PH.D. ......................................................................... 79

4

Exhibit A ......................................................................................................................... 102

5

Exhibit B ......................................................................................................................... 114

6 DECLARATION OF LETITIA ANNE PEPLAU, PH.D........................................................... 121

7

Exhibit A ......................................................................................................................... 143

8

Exhibit B ......................................................................................................................... 160

9 DECLARATION OF M.V. LEE BADGETT, PH.D.................................................................. 168

10

Exhibit A ......................................................................................................................... 187

11

Exhibit B ......................................................................................................................... 203

12 DECLARATION OF GEORGE CHAUNCEY, PH.D............................................................... 208

13

Exhibit A ......................................................................................................................... 246

14

Exhibit B ......................................................................................................................... 255

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ER 259

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CCasaes:e122:-1127-6c6v8-0051708/-1R8C/2J0-1P3AL DoIDcu: m88e2n8t 08368-2 DFkilteEdn0tr9y/:1200/1-62 PPaaggee3: 8ofo1f 81490(417 of 928)

1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

DECLARATION OF NANCY F. COTT, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 260

Appendix – Page 79

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1

I, Nancy F. Cott, Ph.D., hereby declare and state as follows:

2 I. QUALIFICATIONS AND ENGAGEMENT

3

1. I am presently the Jonathan Trumbull Professor of American History at Harvard

4 University. In 1969, I received a master’s degree in History of American Civilization from

5 Brandeis University. In 1974, I received a Ph.D. degree in History of American Civilization from

6 Brandeis University. Since that time, I have researched and taught United States history. I taught

7 for twenty-six years at Yale University, where I gained the highest honor of a Sterling

8 Professorship, and in 2002, I joined the faculty at Harvard University.

9

2. I teach graduate students and undergraduates in the area of American social,

10 cultural, and political history, including history of marriage, the family, and gender roles. I also

11 am the Pforzheimer Family Foundation Director of the Schlesinger Library on the History of

12 Women in America, Radcliffe Institute for Advanced Study.

13

3. I have received numerous fellowships, honors and grants, from a John Simon

14 Guggenheim Memorial Foundation Fellowship in 1985 and National Endowment for the

15 Humanities Fellowship in 1993, to a Fulbright Lectureship in Japan in 2001 and election to the

16 American Academy of Arts & Sciences in 2008.

17

4. I am the author or editor of eight published books, including Public Vows: A

18 History of Marriage and the Nation (Harvard Univ. Press, 2000), the subject of which is marriage

19 as a public institution in the United States. I also have published over twenty scholarly articles,

20 including several discussing the history of marriage in the United States. I have delivered scores

21 of academic lectures and papers over the past thirty-five years on a variety of topics, including the

22 history of marriage in the United States. I also have served on many advisory and editorial

23 boards of academic journals. My background, experience, and list of publications are

24 summarized in my curriculum vitae, which is attached as Exhibit A to this Declaration.

25

5. I spent over a decade researching the history of marriage in the United States,

26 especially its legal attributes, obligations, and social meaning, before and while writing my book

27 Public Vows: A History of Marriage and the Nation. The claims and evidence in this Declaration

28 come principally from the research for that book and are more fully documented there and in an

ER 261

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Appendix – Page 80

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1 article based on that research, “Marriage and Women’s Citizenship,” which was published in

2 American Historical Review in 1998. The numerous historical sources, legal cases, and

3 government documents that I studied and analyzed while researching and writing the book, as

4 well as the other scholars’ work that I consulted, are cited in my published footnotes in the book

5 and article. In addition, I have supplemented my past research with more recent reading and

6 research on matters referenced in this Declaration. In preparing to write this Declaration, I

7 reviewed the Complaint in this case, Public Vows, “Marriage and Women’s Citizenship” and

8 certain of the sources cited therein, and Nevada legal and historical records and other materials

9 listed in the attached Exhibit B. I have also relied on my years of experience in this field, as set

10 out in my curriculum vitae, and on the materials listed therein.

11

6. I have been retained by Plaintiffs’ counsel in connection with the above-referenced

12 litigation. I am being compensated for this effort at a flat rate of $1,000.00 for reports, $250.00

13 per hour for deposition testimony, and $1,000.00 per day for trial testimony. I also will be

14 reimbursed for expenses in the event that I have to travel in connection with my services. My

15 compensation does not depend on the outcome of this litigation, the opinions I express, or the

16 testimony I provide. My opinions expressed herein are my true opinions as an expert in the

17 history of marriage. I have actual knowledge of the matters stated in this Declaration and could

18 and would so testify if called as a witness.

19

7. I reserve the right to supplement or amend this Declaration in consequence of

20 documents or other discovery that any party, or any entity or person (including other expert

21 witnesses), has not yet produced or any witness testimony that has not yet been given.

22

8. In the past four years, I have submitted an expert report, been deposed as an

23 expert, or testified as an expert at trial in Dragovich v. U.S. Dep’t of the Treasury, 4:10-cv-01564-

24 CW (N.D. Cal.); Golinski v. Office of Personnel Management, 3:10-cv-0257-JSW (N.D. Cal.),

25 Windsor v. U.S., 1:10-cv08435-BSJ-JCF (S.D.N.Y.), Pedersen v. Office of Personnel

26 Management, 3:10-cv-01750-VLB (D. Conn.), Perry v. Schwarzenegger, 3:09-cv-2292-JW (N.D.

27 Cal.), and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services,

28 1:09-cv-11156-JLT (D. Mass.).

ER 262

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1 II. SUMMARY OF FACTS AND OPINION

2

9. I have been asked for my expert opinion concerning the United States’ history of

3 marriage, including the purpose, meaning, and evolution of marriage in the U.S. My conclusions,

4 based on my research and as set forth more fully in Section III herein, are as follows:

5

 Marriage is not a fixed institution. In the United States, marriage has changed

6

dramatically over time. It inherited and retained some essential characteristics

7

from the English Common Law, including its basis in free consent of two parties,

8

but in many other respects, marriage has changed significantly to meet changing

9

social and ethical needs.

10

 In the United States, marriage is both public and private. It is a public institution

11

in that it is constituted by the state; its form and requirements are created by public

12

authority, and it operates as systematic public sanction, bringing rights and

13

benefits along with duties. At the same time, marriage signifies a freely-chosen

14

relationship between two individuals and founds a private realm of individual

15

liberty and familial intimacy. Marriage has a unique meaning. Nothing has the

16

same meaning, significance, obligations, rights and benefits as marriage except for

17

marriage itself.

18

 Marriage in all the states of the United States has always been a civil matter, under

19

the control of legislative and judicial authorities, rather than religious authorities.

20

Religious authorities were permitted to solemnize marriages by acting as deputies

21

of the civil authorities. They were never permitted to determine the qualifications

22

for entering or leaving a marriage that would be valid at law, although they were

23

free to determine what qualifications they would accept for religious validation.

24

 Marriage in the United States has been defined and controlled at the state level,

25

historically, in accord with premises established by the U.S. Constitution.

26

Marriage has been shaped by legislators and judges in the various states to reflect

27

and adjust to the changing needs of society and culture over time. Societal change

28

over the centuries has produced new features in marriage that are commonly

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1

accepted today although they would have been unthinkable at the founding of the

2

United States. Marriage has been a successful civil institution precisely because it

3

has been flexible, not static.

4

 States have varied from one another in defining the basic elements of marriage,

5

including whether or not ceremonies are required for validation, how spousal roles

6

shall be defined and enforced, what other “race” may marry a “white” person, how

7

marriage may be dissolved, and other issues. States’ variance today on validating

8

marriage for couples of the same sex resembles and is parallel to the history of

9

states’ divergences with respect to many other dimensions of marriage validity.

10

 Heated controversy often surrounded changes to the features of marriage on which

11

state laws diverged in the past. The controversies today focusing on marriage

12

between couples of the same sex, and state variance on the matter, resemble these

13

past disagreements.

14

 The exclusion from marriage of same-sex couples stands at odds with the direction

15

of historical change in marriage in the United States. Contemporary public policy

16

assumes that marriage is a public good. Excluding some citizens from the power

17

to marry, or marking some as unfit to be part of the national family on the basis of

18

their marriage choice, is not in keeping with public policy regarding either the

19

benefit of marriage or the rights of citizens.

20 III. BASIS AND REASONS FOR OPINIONS

21

A. Significance of Marriage in American Society.

22

10. Marriage is a capacious and complex institution – a paradoxical hybrid, combining

23 public and private, status and contract, governance and liberty. It has political, social, economic,

24 legal, personal, and emotional contents, and meanings and consequences that operate in more

25 than one arena. The idea that marriage is the “happy ending,” the marker of a relationship’s

26 intimacy, a rite of passage signifying adult belonging, and the definitive expression of love,

27 commitment, and family, is deeply ingrained in our society. It is reflected in and perpetuated

28 through law, custom, literature, and even folk tales.

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1

11. Since marriage is authorized by civil authorities in all of the United States, there

2 has always been a close relation between marriage and government. It is most visible in that each

3 state sets forth the requirements for marriage eligibility, issuance of marriage licenses,

4 solemnizing and dissolving marriages. State and federal governments’ special recognition of

5 marriage appears in many forms, including the areas of immigration and citizenship, tax policy,

6 and property rights. Each state affords myriad benefits, responsibilities, and rights to spouses.

7 And, as the General Accounting Office reported in 1996, the corpus of federal law mentions more

8 than 1,000 kinds of benefits, responsibilities, and rights connected with marriage.

9

12. Marriage thus is a bundle of rights, obligations, and benefits, but it also is much

10 more than that. Marriage has a legitimacy earned through many years of validation and

11 institutionalization in law and society. Having been enhanced by government recognition for

12 centuries, the state of being married always has been, and remains, a privileged and unparalleled

13 status.

14

13. Marriage is a profound exercise of the individual freedom promised by the

15 American way of life. Legal marriage expresses and enhances individual freedoms because it is

16 based on consent and freedom of choice. Mutual consent of the two parties always has been seen

17 as essential to the marriage contract. The power to give such consent is the mark of the free

18 person in possession of basic civil rights. This fact is most compellingly illustrated by the history

19 of slavery in the United States. Slave marriages had no legal validity, most basically because

20 slaves did not have the freedom to consent to the obligations of marriage, which their masters’

21 power could always overcome.

22

B. Development of American Marriage Law and Policy.

23

14. From the beginning of the United States, marriage has been an institution

24 authorized and regulated by civil law. Each colony, state, and territory, including Nevada,

25 enacted marriage laws and regulations among its very first founding legislation. These laws

26 (often very detailed) were supreme over any religious views or practices of marriage, indicating

27

28

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1 each state’s wish to define the institution for its citizens and to use that means to create public 2 order and social benefit.1

3

15. Marriage developed this way in the United States for several reasons. The Church

4 of England was in charge of marriages in England at the time of English colonization, but never

5 succeeded in setting up an effective ecclesiastical authority in America. The arriving colonists

6 practiced more than one religion. The great majority of colonists believed in the basic tenets of

7 Christianity, but nonetheless intentionally established secular control over the making and

8 breaking of marriages. When the United States was founded, it established itself as a nation of

9 religious toleration, and all states established civil marriage.

10

16. For many, but not all, Americans, marriage is also invested with religious

11 significance, and the solemnization of marriages commonly takes religious form; nonetheless,

12 marriage is and has always been governed by civil rather than religious authorities. Whether a

13 marriage is recognized or not by a religion does not dictate its legality or validity. Religious

14 authorities have been authorized to act as deputies of the civil authorities in performing marriage

15 ceremonies, but not to determine the qualifications for entering or leaving a legally valid

16 marriage. This is true nationally and in Nevada, where state law characterizes marriage as a

17 “civil contract.” Nevada Compiled Laws: Supplement 1943-1949, 325 (1950) (“That marriage,

18 so far as its validity at law is concerned, is a civil contract, to which the consent of the parties

19 capable in law of contracting is essential.”); Clark v. Clark, 44 Nev. 44, 59-60 (1920) (“marriage

20 is a civil contract”).

21

17. Marriage in all of the United States has always been a consent-based, voluntary

22 choice by the partners. But it is also a legal status conferred and controlled by the state. Although

23 a marriage must be grounded in mutual consent, most states, like Nevada, require and prescribe a

24 form for solemnization and set out the specific requirements for obtaining a marriage license.

25 Nor can a marriage be ended simply by consent; the state controls the granting of divorce. The

26

1 “Common law marriages” in which the marital relationship has not been licensed or legally formalized, but the parties themselves consent, hold themselves out as and live together as

27

married, are recognized in some states but have been abolished in most. Nevada permitted common law marriage until 1943, when it changed its law to require solemnization of all

28

marriages newly entered into after that date. See Nevada Compiled Laws: Supplement 19431947, 325 (1950).

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1 state prescribes the obligations as well as rights of marriage in its dual role as a party to and

2 guarantor of the couple’s consent to wed. The state formally and legally transforms the status of

3 couples who follow the appropriate marriage regulations, giving them a new legal standing and a

4 distinctive set of obligations and rights pertaining to them as married persons.

5

18. Societies in various times and places have defined marriage in different ways.

6 Marriage is an institution of human culture and thus can vary as much as human cultures vary.

7 What is seen as legitimate marriage in a given society may be, for instance, polygamous or

8 monogamous, matrifocal or patrifocal, patrilineal or matrilineal, lifelong or temporary, open or

9 closed to concubinage, divorce-prone or divorce-averse, and so on.

10

19. In the United States, the institution of marriage is a public/private hybrid. Its very

11 definition by civil law makes it a public institution that the state has authorized; it is also public in

12 the sense that a couple makes vows publicly before a witness, and the state reciprocally

13 guarantees to recognize the couple's new rights and obligations by granting them a marriage

14 license. At the same time, marriage is the exercise of an individual liberty and the foundation of

15 the private familial realm.

16

C. Purposes of Marriage

17

20. Marriage in the United States has served numerous complementary purposes and

18 functions, the relative salience of which has changed over time. The private, subjective

19 experience of “being married” may vary as much as individuals vary, but historians can certainly

20 document how the institution of marriage has been defined by law, functioned and changed.

21 Among the purposes that marriage and its regulation by civil authorities have served through

22 American history are: to create stable households; to create public order and economic benefit; to

23 legitimate children; to assign providers to care for dependents (including the very young, the very

24 old, and the disabled) and thus limit the public’s liability to care for the vulnerable; to facilitate

25 property ownership and inheritance; to shape the “people,” or to compose the body politic; and to

26 facilitate governance (state regulation of the population).

27

21. In the interest of public order, state governments have bundled together legal

28 obligations with social rewards in marriage to encourage couples to choose committed

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1 relationships of sexual intimacy over transient relationships, whether or not these relationships

2 will result in children. In the Anglo-American practice of several centuries ago that underlies our

3 contemporary system, marriage was designed to be a regulatory institution that established

4 recognizable household heads who would take economic responsibility for their dependents. In

5 the early United States, state governments encouraged marriage (among the free white

6 population) because maritally-organized households organized the broader population under male

7 household heads and promised economic stability, both of which functions contributed to the

8 common good. These benefits advantaged the state in the past when households more often

9 included large numbers of people, as well as now, when most households and families are small.

10

22. Today, too, the purpose of the state in licensing and incentivizing marriage is to

11 create stable households in which the adults who reside there are committed to one another by

12 their own consent and will support one another and any dependents they may have.

13

23. Over time, marriage has developed a social meaning in which the state places a

14 unique value on the couple’s choice to join in marriage, to remain committed to one another, to

15 form a household based on their relationship, and to join in an economic partnership to support

16 one another in the material needs of life.

17

24. The ability or willingness of couples to produce progeny has never been required

18 for or necessary to marriage under the law of any American state. For example, no state ever

19 barred women past menopause from marrying or allowed a husband to divorce his wife because

20 she was past childbearing age. Men or women known to be sterile have not been prevented from

21 marrying. Nor could a marriage be annulled for an inability to bear or beget children.

22

25. In the past, widows and widowers remarried whenever a willing mate could be

23 found; although it was often clear that no children would result, marriage was nonetheless

24 desirable because it produced the division of labor expected to undergird a well-functioning

25 household. In our contemporary post-industrial economy, many divorced or widowed older

26 adults marry when they are past childbearing age, usually for reasons of intimacy and stability.

27 Ever since the 1920s, when birth control became available, sexual intimacy has been seen as

28 separable from necessary reproductive consequences even for those of reproductive age. Since

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1 then – and even more commonly since contraception became more reliable and widely available

2 in the 1960s – couples with no interest in or expectation of childbearing marry, and re-marry.

3

26. The notion that the main purpose of marriage is to provide an ideal or optimal

4 context for raising children was never the prime mover in states’ structuring of the marriage

5 institution in the United States, and it cannot be isolated as the main reason for the state’s interest

6 in marriage today. Nor is it historically correct to say that a biological link between parents and

7 children is a necessary foundation for marriage or the principal or sole reason why marriage is

8 good for society.

9

27. States’ marriage rules with respect to children have aimed more consistently at

10 supporting them than producing them. While having children was never a requirement, support

11 for any child born or adopted into a family always has been an obligation of the household head.

12 Today, it is a shared responsibility among the family, as much in the case of divorce or separation

13 as in an intact marriage. Such rules have benefitted states by putting a critical limit on public

14 responsibility for the young and the dependent.

15

28. Historically, marriage between the parents of a child was required for the child’s

16 “legitimacy.” Marriage drew the line between legitimacy and illegitimacy—a function that was

17 particularly important among the propertied who were concerned about “legitimacy” in lines of

18 inheritance. Today, parentage can be determined for all children regardless of their parents’

19 marital status, and both adoption and reproductive technology create parents apart from biology.

20 The law requires all parents to support their children, regardless of the circumstances in which

21 those children came to be and regardless of the parents’ marital status.

22

D. The Evolution of Marriage and Its Legal Meaning.

23

29. Marriage in the United States has been a flexible rather than a static or immutable

24 institution. As with other successful civil institutions, marriage has evolved over time to reflect

25 changes in society at large. Marriage has been a successful civil institution precisely because it

26 has been flexible, not static. Adjustments in key features of marital roles, duties, obligations, and

27 its rules of entry have been necessary to preserve the appeal and value of marriage in our dynamic

28 society, and to meet social needs and promises.

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1

30. Marriage rules have varied from state to state, and legislators and judges in every

2 state have changed those rules and interpretations significantly over time. Since the founding of

3 the United States, different states have set, interpreted, altered and adjusted marriage terms and

4 rules in response to local circumstances and preferences. Over time there have been many

5 nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid

6 marriage, what spousal roles should be, and what conditions permitted divorce. State marriage

7 laws arose and responded to changes in the political and economic environment, religious forces,

8 changes in the ethnic composition of a state’s residents, and many other local conditions.

9

31. Our country’s history reveals a number of striking and long-persisting episodes in

10 which marriage laws were used to discriminate among members of the populace, creating

11 hierarchies of value and benefit, declaring some persons more worthy of the freedom, liberty, and

12 privacy inherent in marriage rights than others. These laws created or enforced inequalities that

13 were justified by their supposed naturalness while they existed; over time, however, these

14 inequalities came to seem unwarranted and discriminatory – indeed, unconstitutional – because

15 they defied the guarantee of equal protection of the laws.

16

32. Regional and cultural differences, as well as state legislators’ understandings of

17 their states’ interests, resulted in a patchwork quilt of marriage rules in the United States.

18 Sometimes, as was the case with Nevada, states purposely distinguished their marriage rules from

19 those of other states to compete in drawing population to their borders or with the intent to reap

20 economic benefit for their own state.

21

33. As changes in marriage laws began to take place in the past, they were not readily

22 welcomed by everyone, and were difficult for some in society to accept. Indeed, many features of

23 modern marriage that we take for granted today – such as the ability of both spouses to act as

24 individuals, to marry someone of another race, or to divorce for numerous reasons – were fiercely

25 resisted as they were coming into being, and were viewed by opponents as threatening to destroy

26 the institution of marriage itself.

27

34. Three major areas of change over time illustrate ways that civil marriage has been

28 modified by the actions of courts and legislatures to adapt to societal changes, showing the

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1 resilience that has kept the institution of marriage vigorous and appealing: (a) spouses’ respective

2 roles and rights; (b) racial restrictions; and (c) divorce.

3

(i) Spouses’ Respective Roles and Rights.

4

35. Since our country’s founding, marriage laws have undergone many significant

5 changes, in Nevada and elsewhere, to reflect modified societal views about the equality of the two

6 sexes. Over time our country has moved to gender parity in marriage which would have been

7 unthinkable to most Americans at the founding of the United States.

8

36. Under the Anglo-American common law, marriage gave very different roles and

9 legal rights to husbands and wives. The bargain of marriage as enshrined in early American

10 statutes presumed and prescribed profound asymmetry and inequality in the respective roles and

11 rights of husband and wife.

12

37. Historically, Anglo-American marriage law was based on the legal fiction that

13 married couples were a single entity, with the husband serving as the sole legal, economic, and

14 political representative of that unit, and the woman’s identity merging into her husband’s. This

15 doctrine of marital unity was called coverture, and reflected society’s views of the marital couple

16 as a unit naturally headed by the husband.

17

38. Under coverture doctrine in American law, the wife had no separate legal or

18 economic existence. (That is why Ann Doe became Mrs. John Smith.) A married woman could

19 not, under her own name, own or dispose of property, earn money, have a debt, sue or be sued, or

20 enter into an enforceable agreement because her husband had to represent her in these things.

21 Neither married partner could testify for or against the other in court – nor commit a tort against

22 the other – because the two were considered one person. The two partners were assigned

23 opposite economic roles understood as complementary: the husband was bound to support and

24 protect the wife, and the wife owed her service and labor to her husband. Any property she

25 owned before marriage became his. In community property states such as Nevada, unlike

26 common law states, the wife retained title to her property, but coverture was reflected in the fact

27 that the husband alone controlled management of that property and had the right to dispose of it;

28 all community property was controlled solely by the husband until his death.

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1

39. During the mid-1800s, the notion that married women could have no economic

2 personhood apart from their husbands began to clash with the realities of a developing society. In

3 addition to arguments for married women’s individuality from an equal rights point of view,

4 functional economic arguments for change were persuasive to many. The static rural economy in

5 which the coverture doctrine had arisen had begun to give way to a dynamic market economy.

6 While coverture defined the roles of the two spouses as absolutely different, in practice the tasks

7 of husband and wife often overlapped. Wives needed, and began to demand, rights to their own

8 property and earnings, and legislators and husbands too could see advantages in wives being able

9 to hold property in their own names. Judges and legislators saw the societal advantages in

10 keeping families supported on both spouses’ assets rather than the husband’s only. If a wife had

11 separate property, that could keep a family solvent if a husband’s creditors sought his assets. If

12 wives could keep their earnings, then women married to profligate husbands would be able to

13 support their children, and reduce pressure on the public purse for economic relief.

14

40. The property basis of coverture, which had been in place for hundreds of years and

15 understood as absolutely essential to marriage, was nonetheless eliminated by all the states, over

16 an extended period of time. Far from viewing marriage as immutable, courts and legislatures

17 altered marriage fundamentally in order to take account of societal needs and spouses’ evolving

18 relationships within their households and in the larger society.

19

41. In several waves of statutory reform between the 1830s and the mid-twentieth

20 century, states replaced the common law understanding of marriage with their own detailed and

21 evolving provisions about the economic competence of married women. The timing and content

22 of individual state actions depended on local conditions.

23

42. The unseating of coverture was a protracted process, because it involved revising

24 the gender asymmetry in the marital bargain. The assumption that the husband was the provider,

25 and the wife his dependent, did not disappear as soon as the wife became legal owner of her own

26 property and wages earned outside the home. As late as the mid-twentieth century, the hand of

27 the past showed itself most with regard to the wife’s household labor, traditionally seen as her

28 husband’s domestic right. A legal writer in the 1930s noted that “the courts have jealously

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1 guarded the right of the husband to the wife’s services in the household,” as part of the legal

2 definition of marriage. Judges saw the wife’s service as a necessary corollary to the husband’s

3 asymmetrical obligation of support; every state legally obliged the husband to his wife but not 4 vice-versa.2

5

43. Over a century, repeated law-making in every state incrementally eliminated the

6 property basis of coverture and replaced it with myriad state laws. Community property states –

7 always seen as allowing a more equal bargain between spouses than common-law states – later

8 came to see the spousal inequalities in their marital property requirements. Nevada changed its

9 law in 1959 to reflect equality of interest in marital property between husband and wife, and

10 current Nevada law acknowledges equity between spouses in control and ownership of

11 community property. 1959 Nev. Stat., ch. 298, at 408; Nev. Rev. Stat. § 123.230.

12

44. The evolution of gender neutrality in marriage beyond the ownership and control

13 over property occurred over time through legislative developments and case holdings. During the

14 1970s, repeated successful challenges to sex discrimination in state laws had profound effects on

15 domestic relations. Although the strenuous campaign to put an Equal Rights Amendment into the

16 U.S. Constitution failed, states passed their own Equal Rights Amendments, which led toward

17 gender neutrality in marriage and divorce reform. In divorce, for example, as in other aspects of

18 family law today, gender neutrality in roles and decision-making is the premise. Obligations of

19 the two spouses upon marital dissolution used to be assigned by gender, and they were

20 asymmetrical: the husband was responsible for the economic support of any dependent children,

21 while courts gave the mother a strong preference for custody. Under current divorce laws, in

22 contrast, both parents of dependent children have responsibility for economic support and for

23 childrearing; gender neutrality is the judicial starting point for post-divorce arrangements.

24

45. For couples who consent to marry today, marriage has been transformed from an

25 institution rooted in gender inequality and prescribed spousal roles to one in which the

26 contracting parties decide on appropriate behavior toward one another, and the legal obligations

27

2 The laws requiring husbands’ support – although by no means wholly effective inside marriage or out – had consequences in marital roles, in the spouses' relative power, and in the labor market

28

(disadvantaging married women seeking employment), as well as having coercive force over husbands, who could be thrown in jail for nonsupport.

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1 and benefits of the spouses do not depend on their sex. The two partners in a marriage are still

2 economically and in other ways bound to one another by law. But the law no longer assigns

3 asymmetrical roles to the two spouses. These changes reflect the modern view of marriage as an

4 arrangement between two equal and consenting parties who have freely chosen one another.

5

46. Courts and legislatures have changed laws governing the meaning and structure of

6 marriage to keep it current with the time. The gender equality of marriage today would

7 profoundly shock any American from the era of the American Revolution or the Civil War. But,

8 they would recognize in contemporary marriage the institution’s foundation in two consenting

9 parties freely choosing one another.

10

(ii) Marriage across the Color Line.

11

47. A major example of state variation in marriage law is the criminalization,

12 nullification, and voiding of marriages that crossed a “racial” or color line. This is a chequered

13 history, not at all confined to the American South. The first such laws were passed in the

14 Chesapeake colonies, but most slaveholding states before the Civil War relied on the regime of

15 slavery itself, more than marriage bans, to prevent legitimate marriage between whites and

16 blacks. Because slaves lacked basic civil rights (i.e., the right to body, liberty and property),

17 states regarded them as also lacking the ability to consent validly to marriage. Furthermore,

18 marriage obliged those undertaking it to fulfill certain duties defined by the state; a slave’s prior

19 and overriding obligation of service to the master made carrying out the duties of marriage

20 impossible.

21

48. Following the abolition of slavery, state legislators strengthened bars to marriage

22 across the color line. Ten states enacted new laws that voided or criminalized marriage between

23 blacks and whites, eight others strengthened their similar laws, and still others kept theirs in

24 place. Enforcement of these laws usually occurred at the point of obtaining a marriage license.

25

49. Also around the time of the Civil War, fear and furor over immigration from China

26 arose in the western United States. The territorial legislature of Nevada in 1861 first named

27 "Chinese" as a group who were prohibited from marrying whites. Soon five Western states

28 (including Nevada) added Indians, Chinese and “mongolians” to those (Negro and mulatto)

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1 already prohibited from marrying whites. As theories of “race” continued to develop, laws using

2 racial designations to ban and criminalize certain marriages became more complex, especially the

3 Western states. As many as 41 states and territories of the U.S. banned, nullified, or criminalized

4 marriages across the color line for some period of their history, often using “racial” classifications

5 that are no longer recognized.

6

50. These laws varied widely across the states. New England was less avid in

7 preventing these marriages than other regions; Vermont, New York, and Connecticut never had

8 such laws, but Massachusetts, Rhode Island, and Maine did, early in their histories.

9

51. Many states had complicated histories on this issue, legislating repeatedly and

10 differently over the decades. Some imposed outsize punishments: Alabama, for example,

11 penalized marriage, adultery, or fornication between a white and “any negro, or the descendant of

12 any negro to the third generation,” with hard labor of up to seven years. Some states (especially

13 in the West) expanded the categories of groups whose marriage to whites was prohibited. As the

14 historian Peggy Pascoe has shown (WHAT COMES NATURALLY, at 119): “In one state or

15 another, all of the following groups were prohibited from marrying Whites: Negroes, Mulattoes,

16 Quadroons, Octoroons, Blacks, Persons of African Descent, Ethiopians, Persons of Color,

17 Indians, Mestizos, Half-Breeds, Mongolians, Chinese, Japanese, Malays, Kanakas, Coreans,

18 Asiatic Indians, West Indians, and Hindus.”

19

52. Nevada , in its original territorial laws in 1861, made it a criminal offense (with a

20 mandatory prison term of at least one year) for marriage or cohabitation to occur between, and for

21 someone to solemnize the marriage of any "white man or woman" with any "black person,

22 mulatto, Indian, or Chinese." In 1912, Nevada added even more prohibited categories, making its

23 law the most racially comprehensive in the nation (but then in 1919 removed the category of

24 native Americans from the ban). 1912 Rev. Laws of Nev., Vol. 2, at 1869; 1919 Nev. Stat., ch.

25 72, at 124.

26

53. Legislators often justified the laws criminalizing marriage across the color line by

27 saying that such marriages were against nature or against the Divine plan, much as opponents of

28 same-sex marriage argue today. They contended that permitting cross-racial couples to marry

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1 would fatally degrade the institution of marriage. To the white legislators who passed these laws,

2 only marriage to other whites qualified as “natural.”

3

54. Whatever the high-flown rhetoric surrounding them, however, these bars to

4 marriage served to deny public approval to intimate relationships between whites and persons of

5 color. By preventing such a relationship from ever gaining the status of marriage, legislators

6 sought to delegitimize the relationship altogether. In parallel fashion, preventing legal

7 recognition of a relationship between a couple of the same sex (either at the state or federal level)

8 functions to discredit that relationship.

9

55. While these laws did not completely exclude anyone from entering marriage, they

10 deeply constrained free choice of marital partner. Couples in love across the color line had to

11 settle for the dangerous status of informal marriage (which was also criminal in Nevada and many

12 other states, and lacked respect in their communities), or, alternatively, marrying someone other

13 than the person they loved.

14

56. These laws expressed state preferences at the time. In 1930, laws in thirty states

15 still nullified and punished marriage between whites and black, and many of them, like Nevada's

16 law, treated marriage between whites and Asians the same way. As a result, marriage was the

17 most criminalized form of race-related conduct at the time.

18

57. Social and legal views on this question changed slowly and haltingly during the

19 twentieth century, although racially-based marriage bans continued. They continued to be

20 justified on now-discredited grounds. For example, legislators often said that such prohibitions

21 mirrored what nature or God dictated, and were necessary to prevent “corruption” of the

22 institution of marriage.

23

58. A major shift of opinion occurred in the wake of World War II, which had

24 stimulated an emphasis on cultural and religious pluralism as a national value in the United

25 States. In 1948, the Supreme Court of California, where marriages between whites and either

26 blacks or Asians had been prohibited for almost a century, was the first state high court to hold

27 that race-based restrictions on marriages were unconstitutional. The Court struck down race-

28 based restrictions on choice of spouse, holding that legislation addressing the right to marry “must

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1 be free from oppressive discrimination to comply with the constitutional requirements of due

2 process and equal protection of the laws.” Perez v. Sharp, 32 Cal.2d 711, 715 (1948).

3

59. Over the next two decades, more than a dozen other states eliminated their own

4 race-based bars to marriage, spurred, to be sure, by the civil rights movement’s impact on

5 Americans’ racial views. In 1959, Nevada repealed its laws prohibiting interracial marriage.

6 1959 Nev. Stat., ch.193, at 216.

7

60. Eventually, a challenge to Virginia’s 1924 law (which made marriage between a

8 white and a non-white person a felony) led the Supreme Court of the United States to affirm

9 freedom of choice of spouse regardless of race in Loving v. Virginia, 388 U.S. 1 (1967). This

10 ended the nearly 300-year history of race-based legislation on marriage.

11

61. Today, virtually no one in the United States questions the legal right of individuals

12 to choose a marriage partner without government interference based on race. In Nevada in 2008-

13 10, more than a quarter of new marriages were cross-racial, the highest rate in the nation except 14 for Hawaii.3 A prohibition long embedded in laws and concepts of marriage in Nevada and the

15 majority of the United States has been entirely eliminated.

16

(iii) Divorce.

17

62. Legal and judicial views of divorce likewise have evolved to reflect society’s view

18 of marriage as an embodiment of choice and consent, in which the marriage partners decide

19 themselves what is an appropriate enactment of their marital roles.

20

63. Divorce was possible in some of the English colonies and was introduced in

21 several states immediately after the American Revolution. Within several decades most states

22 and territories allowed divorce, albeit under extremely limited circumstances. Divorce grounds

23 initially involved only such breaches of the marriage as adultery, desertion, or conviction of

24 certain crimes. Grounds such as cruelty appeared later, in the mid-nineteenth century. Nevada's

25 initial law stipulated divorce grounds typical in 1861 when it was passed: impotence, adultery,

26 3 Pew Research Center report, released February 16, 2012 , "The Rise of Intermarriage:
27 Rates, Characteristics Vary by Race and Gender," by Wendy Wang, Appendix 2.

28

http://www.pewsocialtrends.org/2012/02/16/the-rise-of-intermarriage/7/#appendix-2-state-andregional-rates accessed 8-30-2012.

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1 willful desertion, felony conviction, habitual drunkenness, extreme cruelty, husband's neglect to

2 provide.

3

64. Divorce began as (and long remained) an adversary proceeding; that is, one spouse

4 had to accuse the other of committing a wrong against the marriage. The essence of divorce was

5 that one of the partners had broken the social and legal contract embodied in marriage and set by

6 the state. The guilty party’s fault was a fault against the state, as well as against his or her spouse.

7

65. Like other early marriage rules, early divorce laws presupposed different and

8 asymmetrical marital roles for husband and wife. For instance, desertion by either spouse was a

9 ground for divorce, but failure to provide was a breach that only the husband could commit. In

10 court, a wife seeking divorce had to show that she had been a model of obedience and service to

11 her husband in order to succeed in her petition.

12

66. Over time, divorce became more easily obtainable as state legislation expanded the

13 grounds for it, while courts were still required to find one of the parties to be at fault. The

14 expansion of grounds for divorce was hotly debated, and fiercely opposed in some quarters,

15 throughout the nineteenth century. Critics viewed divorce as antagonistic to the institution of

16 marriage. Major religions opposed divorce entirely, or accepted adultery as the sole justification

17 for divorce.

18

67. Alarmist critics were sure that liberalized treatment of divorce would undermine

19 the marital compact entirely. As some states expanded their grounds for divorce in response to

20 local circumstances, extreme differences among them arose. For example, South Carolina

21 permitted no divorces until the late 1940s, and New York granted divorce for adultery only until

22 the 1960s. Nevada went in the opposite direction, becoming the state most generous in granting

23 divorce. The significant differences among states’ provisions caused great alarm about

24 “migratory” divorce (i.e., couples traveling from their home state to a more lenient jurisdiction

25 such as Nevada) and this possibility was attacked as a pernicious evil.

26

68. Beginning in the early 1900s, Nevada enacted increasingly liberal divorce laws. In

27 the 1910s and 1920s, Reno and Las Vegas began building a tourist economy by publicizing

28 Nevada’s divorce laws. Despite heated controversy concerning divorce throughout the nation,

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1 Nevadans reemphasized its own latitude, with especially lenient residency requirements and no

2 restrictions on remarriage. In 1927, Nevada reduced its residency requirement for divorce-

3 seekers to three months. Then, in 1931, it reduced the residency requirement further to only six

4 weeks, besides expanding grounds for divorce and requiring virtually no proof, thus becoming the

5 most liberal venue for obtaining a divorce in the nation. Reno and Las Vegas fueled the state's

6 economy by marketing nation-wide the availability there of quick and easy divorce, as well as

7 quick and easy marriage.

8

69. In 1967, Nevada adopted incompatibility as an additional ground for divorce,

9 essentially creating no-fault divorce in the state. This was the beginning of a trend, formally

10 visible when in 1969, California enacted the nation’s first complete no-fault divorce law,

11 removing consideration of marital fault from the grounds for divorce, awards of spousal support,

12 and division of property. (The American bar had led this reform, since many divorce lawyers had

13 been troubled for decades that the adversary or 'fault' principle often led to cursory fact-finding

14 hearings and even fraud upon the court by colluding spouses seeking to separate.)

15

70. The enactment of no-fault divorce was soon embraced nationally as a means of

16 dealing honestly with marital breakdowns, achieving greater equality between men and women

17 within marriage, and advancing further the notion of consent and choice as to one’s spouse. By

18 1977, all but three U.S. states had adopted some form of no-fault divorce, reflecting society’s

19 view that both parties' consent should persist through a marriage, and that the couple themselves

20 were the best judges of the sufficiency of their performance of marital roles.

21

71. The liberalization of divorce that took place in the twentieth century vastly

22 changed the institution of marriage as it had been known and experienced in earlier centuries.

23 The state, through the courts, today still retains a strong role in the ending of marriages (since

24 post-divorce terms of support must have court approval to be valid), but the move to no-fault

25 divorce showed a major shift toward enabling spouses to set their own marriage goals and to

26 determine how well those goals were being met.

27

72. In divorce, as in other aspects of family law today, the law promotes gender

28 neutrality, including as to custody and obligations of alimony and child support. Previously,

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1 when a marriage broke up, the father was responsible for the economic support of any dependent

2 children, while courts gave the mother a strong presumption for custody of young children.

3 Under current divorce laws, in contrast, both parents of dependent children have responsibility

4 both for economic support and for childrearing. Gender neutrality is the judicial starting point for

5 post-divorce arrangements, including alimony, in consequence of an equal protection challenge to

6 the gender asymmetry of earlier alimony provisions (See Orr v. Orr, 440 U.S. 268 (1979).)

7

E. Marriage Today.

8

73. Marriage has lasted as well as changed throughout the centuries. Marriage retains

9 its basis in voluntary consent, mutual love and support, and economic partnership. The changes

10 in marriage observable over time, as illustrated above, have all been in the direction of increasing

11 equality of the partners, gender-neutrality of marital roles, and control of marital role definition

12 and satisfaction by the marriage partners themselves rather than by state prescription.

13

74. Among the many other striking changes in American marriage laws over time, in

14 addition to the changes discussed above, the states have removed most criminal restrictions on

15 extramarital or nonprocreative sexual activities; the law no longer treats men who conceive

16 children out of wedlock as non-parents; children are not formally deemed “bastards” or

17 “illegitimates” at law if born out of wedlock; issues of custody and visitation have been separated

18 from marital misconduct unrelated to childrearing; and the age for entry into marriage has

19 generally risen.

20

75. Marriage has evolved into a civil institution through which the state formally

21 recognizes and ennobles individuals’ choices to enter into long-term, committed, intimate

22 relationships. In Nevada, and elsewhere, marital relationships are founded on the free choice of

23 two individuals and their continuing mutual consent to stay together.

24

76. Nevada, along with other states, has eliminated gender-based rules and distinctions

25 relating to marriage in order to reflect contemporary views of gender equality and to provide

26 fundamental fairness to both marriage partners. Nevada law treats men and women without

27 regard to sex and sex-role stereotypes – except in its statutory and constitutional requirements that

28 men may only marry women and women may only marry men.

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1

77. Nevada law expressly limits marriage to one man and one woman. See Nev. Rev.

2 Stat. § 122.020. By ballot initiative approved by voters in 2000 and 2002 during the general

3 election, Nevada amended its Constitution to define marriage as the union of one man and one

4 woman. Nev. Const. art. 1, § 21. (“Only a marriage between a male and female person shall be

5 recognized and given effect in this state.”). This sex-based requirement is out of step with the

6 gender-neutral approach of contemporary marriage law.

7

78. In 2009, the Nevada Legislature enacted the Nevada Domestic Partnership Act,

8 which allows eligible couples, either of the same sex or different sex, to register with the state as

9 domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010, et seq. This law provides registered

10 domestic partners with comprehensive rights and responsibilities under state law, comparable to

11 the rights and responsibilities of married couples. Significantly, civil union and domestic 12 partnership laws such as Nevada’s are a recent phenomenon. Never before the 21st century in any

13 of the United States have states created such a separate legal status for couples, or means of

14 obtaining comprehensive legal rights and responsibilities comparable to marriage.

15

79. The exclusion of same-sex couples from equal marriage rights stands at odds with

16 the direction of historical change in marriage in the United States. Other uses of marriage

17 restrictions to discriminate between and among groups of citizens in their freedom to marry

18 partners of their choice have been eliminated. Contemporary public policy assumes that marriage

19 is a public good. Depriving some citizens of the power to marry the one whom they love – or

20 marking some citizens as unfit to join the national family because of their choice of loved one – is

21 not in keeping with public policy regarding either the benefit of marriage or the rights of citizens.

22 IV. CONCLUSION

23

80. Despite the creation of alternative legal statuses for couples of the same sex, no

24 other means of recognizing a freely-chosen intimate relationship has the same meaning, status,

25 significance, and benefits as marriage.

26

81. Throughout American history, state legislatures and courts have made and altered

27 laws governing the meaning and structure of marriage. Restrictions on marriage that were seen as

28 necessary in their time have since been removed as unwarranted and/or unconstitutional.

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Exhibit A

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NANCY F. COTT

ncott@fas.harvard.edu

Jonathan Trumbull Professor of American History, Harvard University, and

Carl and Lily Pforzheimer Foundation Director of the Schlesinger Library on the History of Women in

America, Radcliffe Institute for Advanced Study

Department of History 35 Quincy St. Harvard University Cambridge MA 02138 tel. 617-495-3085

Schlesinger Library 10 Garden St. Cambridge MA 02138 tel. 617-495-8647

EDUCATION: Ph.D. 1974, in History of American Civilization, Brandeis University. M.A. 1969, in History of American Civilization, Brandeis University. B.A. l967, magna cum laude in History, Cornell University.

TEACHING APPOINTMENTS: Harvard University: Jonathan Trumbull Professor of American History, and Carl and Lily Pforzheimer
Foundation Director of the Schlesinger Library, Radcliffe Institute for Advanced Study, 2002— 1979-86; Professor, 1986-90; Chair of Women's Studies Program, 1980-1987, 1992-93; Chair of American Studies Program, 1994-97; Stanley Woodward Professor of History and American Studies, 1990--2000; William Clyde DeVane Professor, spring 1998; Sterling Professor of History and American Studies, 2001. Boston Public Library, NEH Learning Library Program, Lecturer, 1975. Wellesley College: Instructor of History, part-time, 1973-74. Clark University: Instructor of History, part-time, 1972. Wheaton College: Instructor of History, part-time, 1971.

HONORS, FELLOWSHIPS AND GRANTS: Mary L. Cornille Distinguished Visiting Professor in the Humanities, Wellesley College, 2012. American Academy of Arts & Sciences elected member, 2008-Centre d'etudes nord-americaines, Ecole des Hautes Etudes en Sciences Sociales, Paris: French-American
Foundation Chair, 2003-04. Fulbright Lectureship Grant (Japan-U.S. Educational Commission), July 2001. Center for Advanced Study in the Behavioral Sciences, Stanford CA, 1998-99, 2008-09. Radcliffe College Alumnae Association Graduate Society Medal, 1997. Visiting Research Scholar, Schlesinger Library, Radcliffe College, 1991, 1997. National Endowment for the Humanities Fellowship, 1993-94. Liberal Arts Fellowship in Law, Harvard Law School, 1993-94, l978-79,. A. Whitney Griswold grant (Yale Univ.), 1984, 1987, 1988, 1991, 1993, 2000. American Council of Learned Societies Grant-in-Aid, 1988. Charles Warren Center Fellowship, Harvard University, l985. John Simon Guggenheim Memorial Foundation Fellowship, l985. Fellow, Whitney Humanities Center, Yale University, l983-84, 1987. Radcliffe Research Scholarship, Spring l982. Rockefeller Foundation Humanities Fellowship, l978-79. Phi Beta Kappa, l966; Phi Kappa Phi, l967.

PUBLICATIONS: BOOKS Public Vows: A History of Marriage and the Nation (Harvard U. Press, 2000). No Small Courage: A History of Women in the United States, editor (Oxford U. Press, 2000). Root of Bitterness: Documents of the Social History of American Women, revised edition, coeditor with

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Jeanne Boydston, Ann Braude, Lori D. Ginzberg, and Molly Ladd-Taylor, Northeastern U. Press, 1996) A Woman Making History: Mary Ritter Beard Through Her Letters (Yale U. Press, 1991). The Grounding of Modern Feminism (Yale U. Press., 1987). A Heritage of Her Own: Towards a New Social History of American Women, coeditor with E. H. Pleck
(Simon & Schuster, l979). The Bonds of Womanhood: 'Woman's Sphere' in New England, l780-l835 (Yale U. Press, 1977; 2d ed.
with new preface, 1997). Root of Bitterness: Documents of the Social History of American Women (E.P.Dutton, l972)
PUBLICATIONS: ARTICLES "Revisiting the Transatlantic 1920s: Vincent Sheean vs. Malcolm Cowley," American Historical Review, forthcoming February 2013. "The Public Stake," in Just Marriage, Mary Lynn Shanley et al., (NY, Oxford U Press, 2004), 33-36. “Public Emblem, Private Realm: Family and Polity in the United States,” in Democratic Vistas, ed.
Anthony Kronman, (New Haven, Yale U. Press, 2004). “Women’s Rights Talk,” American Studies in Scandanavia 32:2 (2000), 18-29. "Marriage and Women's Citizenship in the United States, 1830-1934," American Historical Review 103:5
(Dec. 1998), 1440-74. "Justice for All? Marriage and Deprivation of Citizenship in the United States," in Justice and Injustice,
Amherst Series in Law, Jurisprudence & Social Thought, ed. Austin Sarat (Ann Arbor, U. Mich, 1996). "'Giving Character to Our Whole Civil Polity': Marriage and State Authority in the Late Nineteenth
Century," in U.S. History as Women's History, ed. Linda Kerber et al. (Chapel Hill, U.N.C., 1995). "Early Twentieth-Century Feminism in Political Context: A Comparative Look at Germany and the
United States," in Suffrage & Beyond, ed. Caroline Daley and Melanie Nolan (Auckland, NZ, Auckland U.P., 1994). "The Modern Woman of the 1920s, American Style," in La Storia Delle Donne, vol. V, Francoise Thebaud, ed., G. Laterza & Figli (Italy), 1992 (also French, Dutch, Spanish and U.S. editions). "Two Beards: Coauthorship and the Concept of Civilization," American Quarterly, 42:2 (June 1990). "Historical Perspectives: The Equal Rights Amendment in the 1920s," in Conflicts in Feminism, ed. Marianne Hirsch and Evelyn Fox Keller (N.Y., Routledge, 1990). "On Men's History and Women's History," in Meanings for Manhood: Constructions of Masculinity in Victorian America, ed. Mark Carnes and Clyde Griffen (Chicago, U. Chicago Press, 1990). "Across the Great Divide: Women's Politics Before and After 1920," in Women, Politics, and Change, ed. Louise Tilly and Patricia Gurin (N.Y.,Russell Sage Foundation, 1990); revised and reprinted in One Woman, One Vote: Rediscovering the Woman Suffrage Movement, ed. M. Wheeler (NewSage, 1995). "What's in a Name? The Limits of Social Feminism or, Expanding the Vocabulary of Women's History," Journal of American History, 76:3 (December 1989). "The South and the Nation in the History of Women's Rights," in A New Perspective: Southern Women's Cultural History from the Civil War to Civil Rights, ed. Priscilla C. Little and Robert C. Vaughan (Virginia Foundation for the Humanities, Charlottesville, 1989). "Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic," with Linda Kerber et al., William and Mary Q., 3d ser., 46 (July 1989). "Women's Rights: Unspeakable Issues in the Constitution," The Yale Review, 77:3 (Spring 1988), 38296. "Feminist Theory and Feminist Movements: The Past Before Us," in What is Feminism? ed. Juliet Mitchell and Ann Oakley (Oxford, Basil Blackwell, l986, and N.Y., Pantheon, 1986). "Feminist Politics in the l920s: The National Woman's Party," Journal of American History, 71 (June 1984). "Passionlessness: An Interpretation of Anglo-American Sexual Ideology, 1790-l840," Signs: A Journal of Women in Culture and Society, 4 (1978).

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"Notes Toward an Interpretation of Antebellum Childrearing," The Psychohistory Review 6 (Spring 1978). "Eighteenth-Century Family and Social Life Revealed in Massachusetts Divorce Records," Journal of
Social History, 10 (Fall l976). "Divorce and the Changing Status of Women in 18th-Century Massachusetts," William and Mary
Quarterly, 3rd ser., 33 (October 1976). "Young Women in the Second Great Awakening in New England," Feminist Studies, 3 (Fall 1975).
PUBLICATIONS: MISCELLANY “Introduction,” Feminists Who Changed America, 1963-75, ed. Barbara Love (U. of Illinois Press, 2006). "Afterword," Haunted by Empire: Geographies of Intimacy in North America, ed. Ann Laura Stoler, (Duke Univ. Press, 2006). "Janet Flanner," in Notable American Women: Completing the Twentieth Century (Cambridge, Harvard
Univ. Press, 2005). Co-editor with Drew Gilpin Faust, The Magazine of History, special issue on Gender History, March 2004. "Considering the State of U.S. Women's History," with others, Journal of Women's History 15:1 (2003). "Response," to "Books in Review: Public Vows: A History of Marriage and the Nation," The Good
Society, 11:3 (2002), 88-90. “The Great Demand,” in Days of Destiny, ed. James MacPherson and Alan Brinkley, Society of American
Historians (Agincourt Press, 2001). Introduction to Jane Levey’s “Imagining the Postwar Family,” Journal of Women’s History, Fall 2001. "Mary Ritter Beard," in American National Biography (Oxford U. Press, 1999). "Challenging Boundaries: Introductory Remarks," Yale Journal of Law and Feminism 9 (1997). "A Conversation with Eric Foner," culturefront 4:3 (Winter 1995-96). "Bonnie and Clyde," in Past Imperfect: History and the Movies, ed. Mark Carnes (N.Y., Henry Holt,
1995). "Privacy"; "Domesticity"; "Mary Ritter Beard"; in A Companion to American Thought, ed. Richard
Wightman Fox and James Kloppenberg (Cambridge, Basil Blackwell, 1995). "Charles A. Beard and Mary Ritter Beard," The Reader's Companion to American History, ed. Eric Foner
and John Garraty, 1991. "Comment on Karen Offen's 'Defining Feminism: A Comparative Historical Approach,'" Signs: Journal of
Women in Culture and Society, 15:11 (1989). Editorial, Special issue of Women's Studies Quarterly, XVI:1/2 Spring/(Summer 1988), "Teaching the
New Women's History." Introduction to A New England Girlhood by Lucy Larcom (Boston, Northeastern U. Press, 1985). "Women as Law Clerks: Memoir of Catherine G. Waugh," in The Female Autograph, New York
Literary Forum, 12-13 (l984). Afterword to Sarah Eisenstein, Bread and Roses, ed. Harold Benenson (London, RKP, 1983). "Mary Ritter Beard," in Notable American Women: The Modern Period (1980).
PUBLICATIONS: REVIEW ESSAYS "Adversarial Invention," American Quarterly, 47:2 (June 1995). "Patriarchy in America is Different," American Bar Foundation Research Journal, 1987:4 (Fall 1987). "Women and the Ballot," Reviews in American History, 15:2 (June 1987). "The House of Feminism," New York Review of Books, 30 (March 17, 1983). "The Confederate Elite in Crisis: A Woman's View," The Yale Review, 71 (Autumn 1981). "Liberation Movements in Two Eras," American Quarterly, 32 (Spring 1980). "Abortion, Birth Control, and Public Policy," The Yale Review, 67 (Summer 1978).

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PUBLICATIONS: REVIEWS in American Historical Review, American Prospect, Boston Globe, Business History Review, Intellectual History Newsletter, International Labor and Workingclass History, Journal of American History, Journal of Interdisciplinary History, New Mexico Historical Review, New York Times Book Review, Pacific Studies, Signs: A Journal of Women in Culture and Society, The Times Literary Supplement, Women's History Review, and The Yale Review.
PUBLICATIONS: EDITORIAL PROJECTS General editor, The Young Oxford History of Women in the United States, 11 volumes, Oxford University Press, 1994. Editor, History of Women in the United States, 20 volumes (article reprint series), K.G. Saur Publishing Co., 1993-94. Guest Editor, special issue of Women's Studies Quarterly, XVI:1/2 (Spring/Summer 1988), on "Teaching
the New Women's History."
OTHER PROFESSIONAL ACTIVITIES: GRANT PROJECTS:
Dissertation seminar in gender history for graduate students, Mellon Foundation, 2002. Steering Committee, Ford Foundation Project on Women and Gender in the Curriculum in
Newly-Coeducational Institutions, 1985-90. Principal Investigator, National Endowment for the Humanities Implementation Grant, "Strengthening Women's Studies at Yale," l983-86. Principal investigator, National Endowment for the Humanities Pilot Grant to Women's Studies, Yale University, l98l.
ACADEMIC JOURNALS AND REFERENCE WORKS: American National Biography, senior editor, 1989-98. American Quarterly, editorial board, l977-l980. Feminist Studies, associate editor, l977-85, editorial consultant, 1985-97. Gender and History, advisory board, 1987-92; editorial collective, 1993-96. Journal of American History, editorial board, 1996-99. Journal of Social History, editorial board, l978-. Journal of Women's History, editorial board, 1987-98. Notable American Women, volume 5, advisory board, 1999-04. Orim: A Jewish Journal at Yale, editorial board, l984-88. The Readers' Encyclopedia of American History, advisory board, 1989-91. Reviews in American History, editorial board, 1981-85. Women's Studies Quarterly, editorial board, 1981-94. Yale Journal of Law and the Humanities, advisory board, 1988-2001. The Yale Review, editorial board, 1980-88, 1991-99.
SERVICE IN PROFESSIONAL ORGANIZATIONS: American Historical Assocation, delegate to American Council of Learned Societies, 2008-12 Society of American Historians, Executive Board, 2006-Elected member: American Antiquarian Society, Massachusetts Historical Society, Society of American
Historians. Organization of American Historians: Merle Curti Prize Committee, 2008; Binkley-Stephenson Prize Committee, 1987-1990 (chair, 1988); elected member of Nominating Committee, 1993-95 (Chair, 199495); elected member of Executive Board, 1997-2000; OAH Lecturer, 1997--. Berkshire Conference of Women Historians: Co-Chair, Eighth Berkshire Conference on the History of Women (1990).

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American Studies Association: Nominating Committee, l98l-84; National Council, 1987-90; American Quarterly Review Committee, 1989.
ACADEMIC ADVISORY BOARDS: The Museum of Women/The Leadership Center, N.Y. State, (chair of historians’ advisory board) 2000--. Princeton University Program in Women's Studies, l985-2001. Project on Gender in Context, Mt. Holyoke College, l982-83. The Correspondence of Lydia Maria Child, 1977-80. Schlesinger Library on the History of Women, Radcliffe College, 1977-80.
AUDIOVISUAL MEDIA PROJECTS: Advisory Board, 888 Film Project, “Left on Pearl,” 2006--. Advisory Board, Women 2.0 Summit, 2007. Advisory Board, Blueberry Hill Productions Ten Stories Project, 2005-WGBH documentary proposal on the History of Marriage in America, Principal consultant, 2002. Institute on the Arts and Civic Dialogue, Affiliated Scholar, American Repertory Theatre and W.E.B. DuBois Institute, summer 1999. Margaret Sanger film project (by Bruce Alfred), Consultant, 1994—96, "One Woman, One Vote: The Struggle for Woman Suffrage in the U. S.," Advisory Board, Educational Film Center, 1991-95. "The American Experience," Advisory Board, WBGH-TV, Boston, MA, 1986--90. Consultant, "Mary Silliman's War," film by Steven Schechter, 1987. Consultant, "Lowell Fever," film by Made in U.S.A., Inc. 1985-87. "Legacies: Family History in Sound," radio course on the history of women and the family in the
U.S., Advisory Board, l984-86. Connecticut Public Radio series, "Choices"/Everyday History, Radio Programs for Children 8 to 12," Consultant, 1982-83. Dan Klugherz (Film) Productions, N.Y., Consultant, l98l-82. Stanton Project on Films on Women in American History, Advisory Board, 1974-77.
PRIZE AND FELLOWSHIP SELECTION COMMITTEES: Merle Curti Prize, Organization of American Historians, 2008. Mark Lynton History Book Prize, 2002. Bunting Institute Fellowship Program, Radcliffe College, 1982, 1996. American Antiquarian Society Fellowships, 1991, 1992, 1994. Governors' Prize, Yale University Press, 1990. American Council of Learned Societies, Fellowships for Recent Recipients of the Ph.D., 1987, 1988,
1990. Bancroft Prize (Columbia University), 1985. Radcliffe Research Scholars Program, 1982. Hamilton Prize, Women and Culture Series, U. Michigan Press, 1981.
CONSULTANT/EVALUATOR (selected list): Johns Hopkins University, History Department, February 2011. Wellesley College, Wellesley Centers for Women, June 2010. University of Helsinki, city center campus, 2005. Univ. of California at Santa Barbara, Women’s Studies Program, February 2002. National Endowment for the Humanities, fellowships for university teachers, 1998; media projects, 2001. History Department, University of Oregon, 1999. Woodrow Wilson Center Fellowships, 1991, 1992, 1994.

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State of Colorado Commission on Higher Education, 1990. National Humanities Center Fellowships, 1988, 1989, 1991, 1992, 1994. "Foundations of American Citizenship," curriculum project, Council of Chief State School Officers, 1987. Connecticut Humanities Council, 1986. Rockefeller Foundation Gender Roles Fellowships Program, 1985. Radcliffe Research Scholars, l983. Working Women's History Project, 9 to 5, Organization for Women Office Workers, 1981. Rockefeller Foundation Humanities Fellowships, l980.
ACADEMIC LECTURES, PAPERS, COMMENTS DELIVERED (selected list): "The Past, Present, and Future of Feminism," OAH night lecture for the AP U.S. Exam-Reading Session, Louisville, KY, June 2012. "The Past, Present, and Future of Feminism," keynote for the 19th annual Susan B. Anthony Institute Interdisciplinary Graduate Conference at the Univ. of Rochester, March, 2012. "The Future of Marriage," Boston Review evening symposium, M.I.T., March 2011. "The History of Marriage on Trial," Margaret Morrison Distinguished Lecture in Women’s History, Carnegie Mellon University, Pittsburgh, PA March 2011. "Why History Matters: Same-Sex Marriage," U.C.L.A. History Department, February 2011. "The History of Marriage on Trial in Perry v. Schwarzenegger," American Association of Law Schools conference, San Francisco, January 2011. "Marriage on Trial," Gender and Women's Studies Program, University of Kentucky, December 2010. "The Craft of History and the Constitution: The Role of Historians as Expert Witnesses in Perry v. Schwarzenegger," Yale Law School, October 21, 2010. Keynote, "Embedded Bodies: Reproductive Justice in Social Context," Harvard Law School, October 15, 2010. "The History of Marriage on Trial," University of California at Berkeley, History Department, March 2010. Panelist, "State of the Field: History of Women/Gender/Sexuality,” Organization of American Historians annual meeting, April 2010. "Born Modern," Center for Advanced Study in the Behavioral Sciences, Stanford University,
October 2008. “Revisiting the Jazz Age,” John O’Sullivan Memorial Lecture, Florida Atlantic U., November, 2007. “Recovering the Interwar Generation,” Modern America Workshop, Princeton University, April 2007;
University of Chicago Social History Workshop, May 2007. “The Reproduction of Gender,” graduate student conference on Nineteenth-Century Reproduction,Temple
University, February 2007. “Women in the Rubble,” Newcombe Institute Summit on Educating Women for a World in Crisis, New
Orleans, LA, February 2007. “Marriage and Citizenship in the History of the United States,” Hall Center for the Humanities,
University of Kansas, November 2006. “Women of Happenstance,” First Ladies Conference, McKinley Homestead, Canton, OH, Apr 2006. “Revisiting the 1920s Generation,” Rothermere American Institute, Oxford Univ., January 2006. "Boundaries and Blinders in History: Revisiting the 1920s Generation," keynote address, Western
Association of Women Historians annual meeting, Phoenix, AZ, April 2005. Panelist, "The Political Spectrum of Same-Sex Marriage," conference on Breaking with Tradition: New
Frontiers for Same-Sex Marriage, Yale Law School, March 2005. "Gender History and Generations," Women's History Month address, Rutgers-Camden Law School,
Camden NJ, March 2005. "Collecting Women's History at the Schlesinger Library," Society of American Archivists annual
meeting, August 2004.

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Colloquium on George Chauncey's Gay New York, Dec. 2003, Ecole Normale Superieur, Paris. Closing remarks, Library of Congress symposium, "Resourceful Women," June 19-20, 2003. "Women, Men, and Modern Marriage," Ecole des Hautes Etudes en Sciences Sociales, November 2003. “What’s Love Got to Do with It? Marriage as a Public Institution in the United States,” Fairleigh
Dickinson University, March, 2003. Comment, “Revisiting Domesticity: Symbolic Economies of Sex and Gender,” American Historical Assoc.
annual meeting, Washington, D.C., January 2003. “Gendering Colonial America, Making Women’s History Colonial: A Roundtable,” Berkshire Conference
on Women’s History, Storrs, CT, June 2002. Comment, panel on “Race and Family in Wartime America: Illegitimacy, Immigration, and the Church,”
Organization of Amer. Hist. annual meeting, Washington, D.C. April 2002. “New Directions in Women’s History after 9/11,” Brandeis University, March 2002. “The Efficacy of Women’s History,” Bridgewater State University, March 2002. “Marriage and the Nation,” Harvard Law School Legal History Forum, October 2001. “The Family, Citizenship, and Democracy in the United States,” University of Tokyo, Japan, July 2001. “Women as Workers, Citizens, and Activists in the Mid-Twentieth-Century U. S.” four- seminar series,
Ritsumeikan University, Kyoto, Japan, July 2001. “Grooming Citizens: Marriage in the Political History of the United States,” Kyoto American Studies
Seminar, Kyoto, Japan, July 2001. “Public Sanctity for a Private Realm: The Family, the Rhetoric of Democracy, and Constitutional
Values in the U.S.,” Bacon Lecture on the Constitution, Boston Univ., May 2001. “Democracy and the Family,” Yale Tercentennial Series “Democratic Vistas,” April 2001. “Marriage and the Nation: Historical Perspectives,” Northeastern University Feminist Studies
Colloquium, March 2001. “Public Vows: On Marriage and the Nation in the Early Twentieth-Century U.S.,” Center for Historical
Study, U. Maryland, College Park, October 2000. “Marriage Revised and Revived,” Associated Yale Alumni faculty lecture, May, 2000. Comment, session on “The Idea of Marriage: The British Atlantic Context,” International Seminar on the
History of the Atlantic World, 1500-1800, Harvard Univ., August 2000. “Reflections on Women and/in Authority,” Women, Justice, and Authority: A Working Conference, Yale
Law School, April 28, 2000. “Grooming Citizens: Marriage and the Civic Order in the United States,” In the Company of Scholars
Lecture Series, Yale University Graduate School, April 2000. “Public Vows: Marriage as a Public Institution,” History Department, Stanford University, January 2000. "An Archaeology of American Monogamy," History Department, Northwestern Univ., October 1999. "The Modern Architecture of Marriage," Gender and Policy Workshop, Department of Economic History,
Stockholm University, Stockholm, Sweden, October 1999. "Women's Rights Talk," conference on "Rights--Civil, Human, and Natural," University of Southern
Denmark, Odense, Denmark, October 1999. Comment, "Making and Breaking Marriages: Reconsidering American Families through the Law,
Berkshire Conference on the History of Women, June 1999. "Marriage Fraud in the Making of Immigration Restriction in the U.S." Center for Cultural Studies, Univ.
of California, Santa Cruz, May 1999. Panel discussant, women and citizenship, Univ. of California, Berkeley, October 1998. "An Approach to Citizenship through Gender History," Univ. of Colorado at Colorado Springs, Feb.1999. "Marriage and Citizenship," Legal Theory Workshop, Yale Law School, October 1998. Comment, "Public Policy and Marriage," American Society for Legal History, Seattle, WA, Oct. 1998. “Thinking about Citizenship and Nationality through Women's History," keynote address, Australian
Historical Association, Sydney, Australia, July 1998. "Race, Blood, and Citizenship: A Gendered Perspective on U.S. Immigration Restriction, 1895-1917,"

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International Federation for Research in Women's History conference, Melbourne, Australia, June 1998. Introduction, Conference on Sexual Harassment Law, Yale Law School, February 1998. "Marriage and Public Policy: The Politicization of Marriage in the 1850s," Schlesinger Library, Radcliffe
College, May 1997. Comment, "Association-Building in America," Organization of American Historians annual meeting, San
Francisco, April 1997. "Writing American Women's History: Retrospect on Nineteenth Century Domesticity," Clarion University,
Clarion, Pa., April 1997. "Against Equality: Mary Ritter Beard and Feminism," DePauw University, March 1997. "Marriage and Women's Citizenship: A Historical Excursion," N.Y.U. Law School, March 1997. Discussant, "One Woman, One Vote: Painting a 70-year Battle on a 2-hour TV Canvas," Berkshire
Conference on the History of Women, June 1996, U.N.C. Chair, "International Feminism, 1840-1945," American Historical Association annual meeting, January
1996, Atlanta, Ga. “The Gender of Citizenship and the 19th Amendment," keynote address, University of Texas 8th Biennial
Graduate Student Historical Symposium, Austin, Oct.1995; Women's History Week lecture, Fitchburg State College, Fitchburg Mass., March 1996. "Effects of the 19th Amendment," Delaware Heritage Commission Conference on the 75th Anniversary of the 19th Amendment, Delaware State Univ., November, 1995. "Forming the Body Politic: Gender, Race, and Citizenship Traditions in the U.S., "John Dewey Lecture in the Philosophy of Law, Harvard Law School, October 1994; Jane Ruby Humanities Fund Lecture, Wheaton College, March 1995. "The Marriage Knot: Gender, Race and Citizenship Policy in the U.S., 1855-1934," UCLA Center for the Study of Women, October 1994. Chair and comment, "Debating Democracy in the 19th Century," annual meeting of the Organization of American Historians, Atlanta, GA, April 1994. "Justice for All? Marriage, Race, and Deprivation of Citizenship in the Early 20th-Century U.S.," Keck Lecture, Amherst College, February 1994; Harvard University, February 1994. "Marriage, Gender, and Public Order," Symposium of the Association for Women's History, Amsterdam, Holland, November 1993. "Early Education of Women," symposium on Uncovering Women's History in Museums and Archives, Litchfield (CT) Historical Society, October 1993. "Early 20th-century Feminism in Germany and the U.S. Compared," Suffrage Centenary Conference, Wellington, New Zealand, August 1993. "Reviewing the Private and the Public through Women's History," Conference for 20 Years of the Edith Kreeger Wolf Distinguished Visiting Professorship, Northwestern Univ., April 1993. "Marriage as/and Public Policy in the Late Nineteenth-Century U.S.," annual meeting of the Organization of American Historians, Anaheim, CA, ; Northwestern University History Department, Apr1993. "Against Equality: Mary Ritter Beard and Feminism," Conference on the 200th Anniversary of Wollstonecraft's Vindication of the Rights of Women, Sussex, England, Dec. 1992. "'Enlightenment Respecting Half the Human Race': Mary Ritter Beard and Women's History," Sophia Smith Collection Semi-Centennial, September 1992. "Women's History in Contemporary Perspective," Harvard University Women's History Week, Mar 1992. "Educating Women in the U.S.," Founders Day lecture, Mary Baldwin College, October 1991. "Feminism in the U.S. in the Early 20th Century in Comparative Perspective," German Association for American Studies annual conference, Muenster, Germany, May 1991. Comment, "Women and American Political Identity," conference on Political Identity in American Thought, Yale Univ., April 1991.

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"Slavery, Race, and the History of Women's Rights in the U.S.," Trenton State College, NJ, March 1991. Comment, "Contextualizing Feminism," annual meeting of the American Historical Association, New York City, December 1990. "The Political Isn't Personal: Mary Ritter Beard's View of Women's History," Center for American Culture Studies, Columbia U., October 1990. "Mary Ritter Beard and Women's History," N.Y. Public Library, Sept. 1989. Chair, "Power in the Early Twentieth Century," Organization of American Historians annual meeting, St.
Louis, April 1989. "What's in a Name?: The Limits of Social Feminism," Boston U., Jan. 1989; Brandeis U., Sept. 1989. Panelist, "Feminist Theory," 10th Anniversary Celebration of the Women's Studies Program at Brandeis
U., November 1988. "Reconsidering Individualism and 'Nature Herself' in the Era of Laissez-Faire Constitutionalism," Harvard
U. History Department, April 1988. Panelist, "Individualism," N. Y. U. Humanities Center, March 1988. Afterword, "Masculinity in Victorian America," Barnard College, Columbia U., January 1988. Panelist, "Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic," U. of
Pennsylvania, December 1987. Chair, "Women in American Constitutional History at the Bicentennial," Annual Meeting of the
American Hist. Assoc., Washington, D.C., December 1987. "Women's Rights: Unspeakable Issues in the Constitution," Association of Yale Alumni Faculty Seminar,
September 1987, New Haven, CT; Brandeis U., March 1988; Second Annual Lowell Conference on Women's History, Lowell, MA, March 1988; Conference on the Constitution as Historical and Living Document, Duchess County Community College, April 1988; Richardson American Studies Lecture, Georgetown U., April 1988. "How Weird Was Beard? Mary Ritter Beard and American Feminism," Seventh Berkshire Conference on the History of Women, June 1987, Wellesley MA. "The Birth of Feminism," Women's Studies Program, Cornell U., March 1987. "Feminism and Women's Political Participation in the Early 20th Century," Conference on Women and Citizenship, Women Historians of the Midwest, St. Paul, MN, March 1987. "The Power of Communalism: Reflections through Women's History," Historic Communal Societies Conference, October 1986. Chair, "Women in the 1950s: An Interdisciplinary Exploration," Organization of American Historians annual meeting, N.Y., April 1986. "Feminism in the 1920s," Boston Area Feminist Colloquium, Northeastern U., January 1986. "History of Feminism," Institute for Policy Studies, Washington, D.C., May 1985. "Feminist Theory and Feminist Movements: The Past Before Us," Women's History Week, Harvard U., March 1985. "Problems of Feminism in the l920s: the Political Environment," Women's History Series, New York U., February 1985; American Studies Lecture, Smith College, March 1985; Harvard Law School Faculty Colloquium, May 1985. "Has Modern Woman Disrupted the Home? 1920s Answers," Wesleyan Center for the Humanities, October 1984. "Feminism and Women in Professional Occupations in the 1920s," American Studies lecture, Amherst College, February 1984. "Feminism in Transition, 1910-1930," Sixth Berkshire Conference on the History of Women, June 1984, Northampton, MA. Comment, "Nineteenth-Century Gender Conventions," Smith-Smithsonian Conference on Conventions of Gender, February 1984. "Definitions of Feminism in the Early Twentieth-Century United States," Whitney Humanities Center,

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Yale U., September 1983. "Challenging Myths of Victorian Womanhood," American Psychiatric Association Convention, New York City, May 1983. "Women's History and Feminism," Phi Beta Kappa Lecture, Sweet Briar College, February 1983; Sarah
Lawrence College, March l983. "Reappraising the History of Feminism in the 1920s," American Studies Series, Boston College, February
1983; History Dept. Series, U. of Virginia, February l983; Hamilton College, April 1983; Trinity College,
April 1983. "The Hundred Fragments: Feminism, the Woman Suffrage Coalition, and American Society," Whitney
Humanities Center, Yale U., January 1983; History Colloquium Series, Princeton U., March 1984. "Women's Education Before 1837," panel, Conference on Women and Education: The Last 150 Years, Mt.
Holyoke College, April 1982. "The Crisis in Feminism, 1910-1920," Radcliffe Research Scholars Series, Radcliffe College, May 1982;
Women's Studies Series, Wesleyan U., October 1982. "Feminism and Women's History," Harvard U., Women's History Week, March 1982. "The Problem of Feminism in the 1920s," Isabel McCaffrey Lecture, May 1981, Harvard U.; American
Civilization Dept., Brown U., November l98l; History and Women's Studies Series, U. of Michigan, March 1982; Center for European Studies, Harvard U., April 1982. Comment, "Consciousness and Society in New England, 1740-l840," Organization of American Historians annual meeting, April 1980, San Francisco, CA. "Women's History: Retrospect and Prospect," Harvard Divinity School History Colloquium, March 1980; U. of South Florida Women's Week, March 1980; American Assoc. for State and Local History, NE Regional Seminar, November 1980, New Haven, CT. "Women and Feminism in the 20th Century," Bunting Institute, Radcliffe College, October 1978. "Roundtable on Mary Ritter Beard," Fourth Berkshire Conference on the History of Women, August 1978, South Hadley, MA. "Ministers and Women in the Late l8th and Early l9th Century," Princeton Theological Seminary, March 1978. "New England Women's Work in the Early National Period," Historic Deerfield, MA, February 1978. Comment, "Sexuality and Ideology in l9th-century America," Southern Hist. Assoc. Conference, November 1977, New Orleans, LA. "Passionlessness: An Interpretation of Anglo-American Sexual Ideology, 1790- l840," History Dept. Colloquium, U. of Mass., April 1977; Rutgers U., March 1978; Marjorie Harris Weiss Lectureship, Brown U., March 1978. "Women and Religion in Early l9th-Century New England," History Department Colloquium Series, U.of Conn., February 1977; Old Sturbridge Village, March 1977. Chair and comment, "Comparative Perspectives on Sexual and Marital Deviance and the Law," Third Berkshire Conference on the History of Women, June 1978, Bryn Mawr, PA. "Adultery, Divorce, and the Status of Women in Revolutionary Massachusetts, "Conference on Women in the Era of the American Revolution, July, 1975, Washington, D.C.; Princeton U. Colloquium Series, November 1975; Boston State College Lecture Series on the American Revolution, November 1976. Young Women's Conversion in the Second Great Awakening," Second Berkshire Conference on the History of Women, November 1974, Cambridge, MA. Chair and comment, "Women in the Professions," First Berkshire Conference on the History of Women, March 1973, New Brunswick, N.J.
PUBLIC SERVICE LECTURES:

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"Women's Rights in the 20th Century," week-long series of lectures, Gilder-Lehrman Institute for American History seminars for teachers, June 2008, 2009, 2011. “What is Gender History?” Symposium on Women, History Connections Teaching American History
Grant, Rockford Public Schools, Rockford, Illinois, October 2007. “Marriage and the State,” Thursday Morning Club (for the benefit of Mt. Auburn Hospital), Feb. 2006. “What Can Venturesome Women of the 1920s Tell Us Today?” Linda Rosenzweig Memorial Lecture,
Wellfleet Public Library, Wellfleet MA, August 2005. "Marriage and the Public Order in the History of the United States," 2005 American Studies Summer
Institute, John F. Kennedy Library, July 2005. "Preserving Women's History at Radcliffe and Harvard," Committee on the Concerns of Women at
Harvard, June 2005. "Women's Education in the 18th Century," Adams Historic Site, Quincy, MA, April, 2005. Moderator, "What Sort of a Right is Marriage?" Harvard University Human Rights Program, March 2005. "What is Gender History?" annual luncheon for the College Board, Organization of American Historians, annual meeting, San Jose, CA, April 2005. "What the State Has to Do with It: Changing Marriage," Democrats Abroad, Paris, Dec. 2003. "Marriage and the Law," invited discussion with Senior Matrimonial Lawyers, educational retreat,
Troutbeck Conference Center, Amenia NY, October 2003. “Marriage as a Public Institution in the United States,” Harvard Neighbors, February 2003; Harvard
Librarians’ group, February 2003. “Looking at the World after 9/11 through a Women’s History Lens,” Radcliffe Seminars Final Conference,
April 2002. “Women as Workers and Citizens in the Twentieth Century,” Institute for Emerging Civil Rights Leaders,
Harvard Graduate School of Education, June 11, 2001. “The Value of Women’s Work: Historical, Public and Private Views,” Bostonian Society, May 2001. “Woman Suffrage: Why Did It Take So Long?” and “The Gender Structure of Citizenship,” NEH
Summer Institute for High School and Middle School Teachers on Women’s Rights and Citizenship in American Thought,” Ohio State Univ., July 2000. “Education in Abigail Adams’ Time,” Women and the American Revolution Lecture Series, Adams National Historical Site, Quincy, MA, June 2000. “Women of Conscience in Politics,” Maine Town Meeting, 50th anniversary of Sen. Margaret Chase Smith’s Declaration of Conscience, June 1, 2000, Skowhegan, Maine. “The History of Marriage,” testimony and discussion before the Judiciary Committee, Vermont House of Representatives, January 2000. "Women as Citizens in the 20th Century," A Millennium Evening at the White House, Washington, D.C., March 1999. "Historians and Filmmakers: A Dialogue," Chatauqua .N.Y., August 1997. "Winning the Women's Ballot: Citizenship, World War, and the Woman Suffrage Campaign," U.S. Air Force Academy, Colorado Springs, August 1995. "The Beginnings of Women's Education in the U.S.," Witmer Lecture, Social Studies Dept., Hunter College High School, March 1995. "New Immigrants, New Women," Rebecca Plank Memorial Lecture, Milton Academy, March 1995. "The South and the Nation in the History of Women's Rights," Conference of Southern Humanities Foundations, Washington, D.C., May 1988. "Women's Rights: Unspeakable Issues in the Constitution," Judicial Seminar, N.Y. State Judiciary Continuing Education, July 1988.

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Exhibit B

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Pascoe, Peggy. What Comes Naturally: Miscegenation law and the Making of Race in America (New York: Oxford, 1999).
Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society (Cambridge and New York, Cambridge University Press, 1988).
Pleck, Elizabeth H. Celebrating The Family: Ethnicity, Consumer Culture, and Family Rituals (Harvard University Press, 2001).
Riley, Glenda. Divorce: An American Tradition 65 (New York: Oxford University Press, 1991).
Sayre, Paul. “A Reconsideration of Husband's Duty to Support and Wife’s Duty to Render Services,” Virginia Law Review 29 (1943), 857-75.
Shammas, Carole. “Re-assessing the Married Women’s Property Acts,” Journal of Women’s History 6:1 (Spring 1994), 9-30.
Shammas, Carole. A History of Household Government In America (University of Virginia Press, 2002).
Shammas, Carole. “Anglo-American Household Government in Comparative Perspectives,” WMQ, 3d ser., 52:1 (Jan. 1995), 104-44.
Shanley, Mary L. Feminism, Marriage and the Law in Victorian England (Princeton, 1989).
Shanley, Mary L. Making Babies, Making Families: What Matters Most in an Age of Reproductive Technologies, Surrogacy, Adoption, and Same-Sex Unwed Parents (Beacon, 2001).
Shanley, Mary L. “Marriage Contract and Social Contract in 17th- Century English Political Thought,” The Family In Political Thought (J.B. Elshtain ed., 1982).

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Siegel, Reva B. “The Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earnings, 1860-1930,” Georgetown Law Journal 82:7 (Sept. 1994), 2127-2211.
Skocpol, Theda. Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Harvard University Press, 1992).
Stanley, Amy Dru. From Bondage to Contract: Wage Labor, Marriage and the Market in the Age of Slave Emancipation (Cambridge University Press, 1998).
Sugarman, Stephen D., and Herma Hill Kay, eds. Divorce Reform at the Crossroads (New Haven: Yale University Press, 1990).
VanBurkleo, Sandra F. ‘Belonging to the World’: Women’s Rights and American Constitutional Culture (New York: Oxford, 2001).
Vernier, Chester G. American Family Laws: A Comparative Study of the Family Law of the Forty-Eight American States . (Stanford: Stanford University Press 1931). vol I Introductory Survey and Marriage (to Jan. 1 1931); vol III, Husband and Wife (to Jan. 1, 1935).
Wallenstein, Peter, “Race, Marriage and the Law of Freedom: Alabama and Virginia, 1860-1960s,” Chicago-Kent Law Review 70:2 (1994), 371-437.
Warren, Joseph. “Husband’s Right to Wife’s Services,” Harvard Law Review 38 (Feb. 1925), pt. 1, 421-46, pt. 2, 622-50.
Welke, Barbara. Law and the Borders of Belonging in the Long Nineteenth Century United States (Cambridge University Press, 2010).

Cases Clark v. Clark, 44 Nev. 44 (1920). Loving v. Virginia 388 U.S. 1 (1967). Orr v. Orr, 440 U.S. 268 (1979). Perez v. Sharp, 198 P.2d 17 (Cal. 1948).
Constitution, Statutes, Legislative Materials and Session Reports Nev. Const. art. 1, § 21. Nev. Rev. Stat. § 122.020. Nev. Rev. Stat. § 122.110.
4
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Nev. Rev. Stat. §§ 122A.100, et seq. Nev. Rev. Stat. §§ 122A.010, et seq. Nev. Rev. Stat. § 123.230. 1862 Nev. Stat., ch. 32, at 93.
1862 Nev. Stat., ch. 33, at 98-9. 1862 Nev. Stat., ch. 76, at 239-42. 1873 Nev. Stat., ch. 119, at 194. 1897 Nev. Stat, ch. 20, at 24. 1912 Rev. Laws of Nev., Vol. 2, at 1869. 1913 Nev. Stat., ch. 10, at 11. 1915 Nev. Stat., ch. 28, at 27. 1919 Nev. Stat., ch. 72, at 124. 1927 Nev. Stat., ch. 96, at 127. 1931 Nev. Stat., ch. 97, at 161. 1959 Nev. Stat., ch. 193, at 216. 1959 Nev. Stat., ch. 298, at 408. 1967 Nev. Stat., ch. 278 at 805. The Compiled laws of Nevada In Force From 1861-1900 (Inclusive) (compiled and annotated by Henry C. Cutting, 1900), Domestic Relations - Approved November 28, 1861, 94. Nevada Compiled Laws: Supplement 1943-1949, 325 (1950).

Other Materials
Anderson, Rachel J. “Timeline: African-American Legal History in Nevada (18612011),” 20 Nevada Lawyer 8 (2012).

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“A Brief History of the Washoe County Bar Association: 1905-2005,” 13 Nevada Lawyer 7.
Pew Research Center report, released February 16, 2012 , "The Rise of Intermarriage: Rates, Characteristics Vary by Race and Gender," by Wendy Wang, Appendix 2, available at http://www.pewsocialtrends.org/2012/02/16/the-rise-ofintermarriage/7/#appendix-2-state-andregional-rates accessed 8-30-2012.

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1 JON W. DAVIDSON (pro hac vice)

TARA L. BORELLI (pro hac vice) 2 PETER C. RENN (pro hac vice)

3 SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

4 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010
5 Email: jdavidson@lambdalegal.org

tborelli@lambdalegal.org

6

prenn@lambdalegal.org

7

sday@lambdalegal.org

Tel: 213.382.7600 | Fax: 213.351.6050

8
CARLA CHRISTOFFERSON (pro hac vice) 9 DAWN SESTITO (pro hac vice)

10

MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice)

11 O’MELVENY & MYERS LLP 400 South Hope Street

12 Los Angeles, California 90071

Email: cchristofferson@omm.com

13

dsestito@omm.com

14

mcristol@omm.com razizi@omm.com

15 Tel: 213.430.6000 | Fax: 213.430.6407

16 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
17 SNELL & WILMER LLP
3883 Howard Hughes Parkway, Suite 1100 18 Las Vegas, Nevada 89169
19 Email: kdove@swlaw.com mbute@swlaw.com
20 Tel: 702.784.5200 | Fax: 702.784.5252

21 Attorneys for Plaintiffs

22

UNITED STATES DISTRICT COURT

23

DISTRICT OF NEVADA

24 BEVERLY SEVCIK and MARY
25 BARANOVICH; ANTIOCO CARRILLO and THEODORE SMALL; KAREN
26 GOODY and KAREN VIBE; FLETCHER WHITWELL and GREG FLAMER;
27 MIKYLA MILLER and KATRINA
MILLER; ADELE TERRANOVA and 28 TARA NEWBERRY; CAREN

No. 2:12-CV-00578-RCJ-PAL
DECLARATION OF LETITIA ANNE PEPLAU, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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1 CAFFERATA-JENKINS and FARRELL CAFFERATA-JENKINS; and MEGAN
2 LANZ and SARA GEIGER,

3

Plaintiffs,

4

v.

5 BRIAN SANDOVAL, in his official capacity 6 as Governor of the State of Nevada; DIANA
ALBA, in her official capacity as Clerk for 7 Clark County; AMY HARVEY, in her
official capacity as Clerk for Washoe 8 County; and ALAN GLOVER, in his official 9 capacity as Clerk-Recorder for Carson City,

10

Defendants

11

12

I, Letitia Anne Peplau, Ph.D., hereby declare and state as follows:

13

PRELIMINARY STATEMENT

14

1. My professional background, experience, and publications are detailed in my

15 curriculum vitae, which is attached as Exhibit A to this declaration. I have been retained by

16 counsel for Plaintiffs as an expert in connection with the above-captioned litigation. I have actual

17 knowledge of the matters stated in this declaration and could and would so testify if called as a

18 witness.

19

2. I was a Professor of Psychology at the University of California, Los Angeles

20 beginning in 1973, with promotions to tenure in 1978, to full professor in 1982, and to

21 Distinguished Professor in 2010. From 2005-2011, I served as Director of the UCLA

22 Interdisciplinary Relationship Science Program. This program, funded by the National Science

23 Foundation, trained doctoral students in the study of families and other personal relationships. I

24 formally retired from UCLA in June 2011, but am continuing to work at UCLA as Distinguished

25 Research Professor and as the Psychology Department Vice Chair for Graduate Studies.

26

3. In broad terms, my research addresses topics concerning personal relationships,

27 gender, and sexual orientation. I have conducted research on heterosexual couples, co-authored a

28 book entitled Close Relationships, and published articles comparing empirical findings about

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1 men’s and women’s experiences in close relationships. In the 1970s, I was one of the first

2 researchers to conduct empirical investigations of the intimate relationships of lesbians and gay

3 men, and I have continued this program of research for the past 30 years. In addition, I have

4 written several major reviews of the scientific research on same-sex relationships, including a

5 2007 article in the Annual Review of Psychology and a 2009 article in the Encyclopedia of

6 Human Relationships. I have also conducted empirical studies on gay and lesbian identity.

7

4. I received my B.A. in Honors Psychology from Brown University in 1968 and my

8 Ph.D. in Social Psychology from Harvard University in 1973. As reflected in my curriculum

9 vitae (Exhibit A), I have published more than 120 papers in scholarly journals and scholarly

10 books, primarily in the field of couple relationships. I have co-authored or co-edited over 10

11 books, and I have frequently presented my research at universities and scientific meetings.

12

5. My expertise extends beyond the specific areas addressed in my own empirical

13 research program to include other theory and empirical research related to sexual orientation and

14 same-sex relationships. A broad knowledge of this area has been necessary not only for my own

15 scholarship, but also for successfully completing my professional duties as a teacher, as Director

16 of the UCLA Interdisciplinary Relationship Science Program, and as a reviewer of academic

17 journals and book manuscripts.

18

6. As a result of my research and other accomplishments, I have received several

19 professional awards. I have been elected a fellow of the American Psychological Association and

20 of the Association for Psychological Science. I have received lifetime achievement awards from

21 the American Psychological Association, the International Association for Relationship Research,

22 and the Society for the Scientific Study of Sexuality. I also had the honor of being elected

23 president of the International Society for the Study of Personal Relationships (an organization

24 since renamed the International Association for Relationship Research).

25

7. In preparing this Declaration, I reviewed the Complaint in this case, and the

26 materials listed in the attached Bibliography (Exhibit B). I may rely on those documents, in

27 addition to the documents specifically cited as supportive examples in particular sections of this

28 Affidavit, as additional support for my opinions. I have also relied on my years of experience in

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1 this field, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein.

2

8. In the past four years, I have testified as an expert – either at trial or through

3 declaration – or been deposed as an expert in In the Matter of the Adoption of X.X.G. and N.R.G.

4 in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, Case No.

5 06-43881 FC 04, Cole v. The Arkansas Department of Human Services in the Circuit Court of

6 Pulaski County, Arkansas, Case No. CV2008-14284, Perry v. Schwarzenegger, Case No. 09-CV-

7 2292 VRW (N.D. Cal.), Golinski v. Office of Personnel Management, 3:10-cv-0257-JSW (N.D.

8 Cal.), Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), Pedersen v. Office of Personnel

9 Management, No. 3:10-cv-01750-VLB (D. Conn.), Dragovich v. U.S. Dep’t of the Treasury, CV

10 4:10-01564-CW (N.D. Cal.), and Donaldson and Guggenheim v. Montana in the Montana First

11 Judicial District Court, Lewis and Clark County, Case No. BDV-2010-702.

12

9. For my work in this matter, I am being compensated at my standard consulting rate

13 of $300 per hour for preparation time, time spent writing my report, and time spent giving

14 deposition and trial testimony. My compensation does not depend on the outcome of this

15 litigation, the opinions I express, or the testimony I provide.

16 I. Summary of Opinions

17

10. Sexual orientation refers to an enduring pattern of emotional, romantic, and/or

18 sexual attractions to men, women, or both sexes. Most adults are attracted to and form

19 relationships with members of only one sex. Efforts to change a person’s sexual orientation

20 through religious or psychotherapy interventions have not been shown to be effective.

21

11. It is well-established that homosexuality is a normal expression of human

22 sexuality. It is not a mental illness, and being gay or lesbian has no inherent association with a

23 person’s ability to lead a happy, healthy, and productive life or to contribute to society.

24

12. Research shows that same-sex couples closely resemble heterosexual couples.

25 Like their heterosexual counterparts, many lesbian, gay, and bisexual individuals form loving,

26 long-lasting relationships with a partner.

27

13. Marriage provides a range of social and other benefits and protections to spouses.

28 These contribute to enhanced psychological well-being, physical health, and longevity among

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1 married individuals. Domestic partnerships are not as well-understood or respected by the

2 community as marriage, which has significant cultural values and expectations. Same-sex

3 couples are therefore harmed by being excluded from marriage.

4

14. In the United States, lesbian, gay, and bisexual individuals experience pervasive

5 social stigma and the added stress that results from prejudice and discrimination. Stigma is

6 reflected both in acts of individuals and in the institutions of society, including its laws, that

7 legitimate and perpetuate the second-class status of gay men, lesbians, and bisexuals. Nevada’s

8 exclusion of same-sex couples from marriage both reflects and perpetuates stigma against

9 lesbians, gay men, and same-sex couples. The stigma and discrimination perpetuated by

10 Nevada’s exclusion harm not only same-sex couples, but gay men, lesbians, and bisexuals as a

11 group.

12

15. There is no scientific support for the notion that allowing same-sex couples to

13 marry would harm different-sex relationships or marriages. The factors that affect the quality,

14 stability, and longevity of different-sex relationships would not be affected by marriages between

15 same-sex couples.

16 II. Understanding Sexual Orientation

17

A. What is Sexual Orientation?

18

16. The American Psychological Association provides a widely accepted definition of

19 sexual orientation: “Sexual orientation refers to an enduring pattern of emotional, romantic,

20 and/or sexual attractions to men, women, or both sexes. Sexual orientation also refers to a

21 person’s sense of identity based on those attractions, related behaviors, and membership in a 22 community of others who share those attractions.”1

23

17. Beginning with the research of Alfred Kinsey in the 1940s, researchers have

24 recognized that sexual orientation can range along a continuum from exclusively heterosexual to

25 exclusively homosexual. Nonetheless, it is most often discussed in terms of three categories:

26 heterosexual (having emotional, romantic, or sexual attractions to members of the other sex),

27 gay/lesbian (having attractions to members of one’s own sex), and bisexual (having attractions to

28 1 American Psychological Association, 2008; Herek, 2000.

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1 both men and women). Most adults in the United States can readily categorize themselves as 2 heterosexual, gay/lesbian, or bisexual.2 The specific category name that an individual prefers 3 (e.g., homosexual, gay) may vary3, but in national surveys in the U.S., nearly all participants are

4 able to indicate their sexual orientation category.

5

18. For clarity, it is important to distinguish sexual orientation from other aspects of

6 sex and gender. These include biological sex (the anatomical, physiological, and genetic

7 characteristics associated with being male or female), gender identity (an individual’s

8 psychological sense of being male or female), and gender-role orientation (the extent to which an

9 individual conforms to cultural norms defining feminine and masculine behavior).

10

19. Social scientists view sexual orientation as a multi-faceted phenomenon involving

11 attractions, related behaviors, and identity. In research studies, the particular component of

12 sexual orientation that researchers assess will differ depending on the purpose of the research.

13 For example, a study about the experiences of individuals in same-sex marriages would recruit

14 participants based on their behavior of marrying a person of the same sex. A study of personal

15 experiences of social stigma and discrimination among openly gay and lesbian individuals would

16 most likely recruit individuals who self-identify as gay or lesbian.

17

20. Sexual orientation is inherently linked to social relationships. Sexual orientation is

18 a characteristic of an individual, like their biological sex, age, or race, and it is also about

19 relationships – whether an individual is attracted sexually or romantically to partners of the same 20 sex or the opposite sex.4 Just as heterosexual individuals often express their sexual orientation

21 through relationships including marriage with a different-sex partner, so gay and lesbian

22 individuals express their sexual orientation through relationships including marriage with a same-

23 sex partner. Further, sexual orientation is not merely about sexual behavior but also about

24 building enduring intimate relationships. In other words, sexual orientation is centrally linked to

25 the most important personal relationships that adults form with other adults in order to meet their

26 basic human needs for love, attachment, and intimacy. These relationships, whether with a same-

27

2 See, e.g., Chandra, Mosher, Copen & Sionean, 2011, pp 29-30; Laumann, Gagnon, Michael & Michaels, 1994, p. 293.

28

3 See, e.g., Herek, Norton, Allen & Sims, 2010. 4 Peplau & Cochran, 1990; Peplau & Fingerhut, 2007.

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1 sex or different-sex partner, are an essential part of an individual’s personal identity.

2

B. Can Sexual Orientation Be Changed?

3

21. Currently, the precise factors that cause an individual to be heterosexual,

4 homosexual, or bisexual are still being researched. Much research has examined possible genetic,

5 prenatal hormonal, developmental, and social influences on sexual orientation, and many 6 scientists view sexual orientation as resulting from the interplay of those factors.5

7

22. A consistent finding across many studies, beginning with the work of Alfred

8 Kinsey in the 1940s and 1950s and continuing through current research, is that most adults report 9 having sexual attractions to and experiences with members of only one sex.6 As adults, the

10 majority of these individuals have had exclusively heterosexual experiences and attraction, and a

11 minority have had exclusively same-sex experiences and attraction. A small percentage of adults 12 report sexual attractions and experiences with both sexes.7

13

23. The significant majority of adults exhibit a consistent and enduring sexual

14 orientation.8 The fact that many lesbian and gay adults form long-term intimate relationships

15 with a partner of the same sex,9 just as heterosexual adults do with a partner of the other sex,

16 provides evidence of the stability of sexual orientation over time. Nonetheless, a small minority

17 of individuals are exceptions to this majority pattern. For example, while in prison, some men

18 who identify as heterosexual may nonetheless engage in sexual activities with men since female

19 partners are unavailable. Some individuals have reported changes in their sexual orientation in

20 midlife, perhaps as a result of meeting a particular person. Understanding these kinds of

21 exceptions to the general pattern of stable sexual orientation described above is of theoretical

22 interest to scholars. Researchers have used terms like “sexual fluidity” or “sexual plasticity” to

23

5 American Psychological Association, 2008. 6 Kinsey, Pomeroy & Martin, 1948; Kinsey, Pomeroy, Martin & Gebhard, 1953; Laumann, et al.,

24

1994; Chandra, et al., 2011. 7 Some individuals are very clear about their sexual orientation at an early age. In contrast,

25

because of the social prejudice and discrimination against gay men and lesbians, some adolescents and young adults go through a prolonged period of trying to understand their own

26

sexual identity and coming to terms with being lesbian, gay, or bisexual. 8 Based on large-scale survey data, Chandra et al. (2011, p. 1) conclude that “Sexual attraction

27

and identity correlate closely but not completely with reports of sexual behavior.” Thus, most heterosexual individuals do not engage in sexual activity with same-sex partners, and most gay

28

and lesbian individuals similarly do not engage in heterosexual behavior. 9 Carpenter & Gates, 2008; see also Peplau & Fingerhut, 2007.

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1 refer to changes in sexual behavior, attractions, and identity over time or across situations.

2 Importantly, observations about fluidity in a small minority of people should not obscure the big

3 picture of stability for the majority of adults. In a discussion of women’s sexual fluidity, Peplau 4 and Garnets10 noted: “Claims about the potential erotic plasticity of women do not mean that most

5 women will actually exhibit change over time. At a young age, many women adopt patterns of

6 heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of

7 same-sex attractions and relationships.” Nor does the fact that a small minority of people may

8 experience some change in their sexual orientation over their lifetime suggest that such change is

9 within their power to effect, let alone that individuals outside this small minority have the power

10 to change voluntarily their sexual orientation. This is why standard definitions of sexual

11 orientation characterize it as stable.

12

24. Before the emergence of gay communities in the United States, it was fairly

13 common for lesbians and gay men to marry a person of the other sex.11 They entered these

14 ostensibly “heterosexual” marriages for diverse reasons: to avoid social stigma, in response to

15 pressure from family and friends, from a belief that marriage was the only way to have children,

16 and/or to participate in a fundamental social institution. In some cases, these individuals only

17 recognized or acknowledged their sexual orientation after marriage. It is psychologically harmful

18 to ask lesbians and gay men to deny a core part of who they are by ignoring their attraction to

19 same-sex partners and instead marrying a different-sex partner. Moreover, the disclosure that a

20 spouse is gay or lesbian is often hurtful to the heterosexual spouse, highly upsetting to their

21 children or other family members, and frequently sets the stage for separation or divorce.

22 Therefore, encouraging gay men and lesbians to enter into a marriage with a heterosexual partner

23 is not in the best interests of the individuals or the interests of society.

24

25. When gay men and lesbians are asked by researchers about their sexual

25 orientation, the vast majority report that they experienced no choice or very little choice about

26

10 Peplau & Garnets, 2000, p. 333. 11 Bozett, 1982; Higgins, 2006. Researchers have estimated the percentage of lesbians and gay

27

men who have been married. An analysis of responses to a 2003 survey of adults in California found that about 25% of lesbians and 9% of gay men ages 18-59 reported having ever been

28

married, most of them presumably to a person of the other sex (Carpenter & Gates, 2008, Table 3).

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1 their sexual orientation. In a national survey conducted with a representative sample of more than

2 650 self-identified lesbian, gay, and bisexual adults, 95% of the gay men and 83% of the lesbians

3 reported that they experienced “no choice at all” or “very little choice” about their sexual 4 orientation.12

5

26. Sexual orientation is highly resistant to change through psychological or religious

6 interventions. Recently, the American Psychological Association appointed a task force to

7 conduct a systematic review of the peer-reviewed journal literature on sexual orientation change 8 efforts.13 The Task Force concluded that “efforts to change sexual orientation are unlikely to be

9 successful and involve some risk of harm” (p. 3). Based on currently available research, there is

10 no credible evidence that these efforts are either effective or safe, and ample reason to believe that 11 these interventions can harm those who participate.14 The Task Force also found evidence that

12 many individuals who unsuccessfully attempt to change their sexual orientation experience

13 considerable psychological distress including anxiety, depression, thoughts of suicide, and sexual

14 dysfunction.

15

27. Currently, no major mental health professional organization has approved

16 interventions to change sexual orientation, and virtually all of them have adopted policy

17 12 Herek, Norton, Allen & Sims, 2010. In that survey, 88% of gay men reported that they had ”no

18

choice,” and 7% reported “very little choice.” Similarly, 68% of lesbians responded that they had “no choice at all,” and 15% reported having “very little choice.” See also results from a

19

California survey by Herek, Gillis & Cogan, 2009, Table 5. 13 APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of

20

the Task Force on Appropriate Therapeutic Responses to Sexual Orientation. Washington, DC: American Psychological Association. This report provides a detailed review and analysis of

21

relevant research. Available at: http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. 14 Although some psychotherapists and religious counselors have reported changing their clients’

22

sexual orientation from homosexual to heterosexual, empirical support for these claims is lacking. After reviewing published empirical research on this topic, the APA Task Force reported that it

23

found “serious methodological problems in this area of research, such that only a few studies met the minimal standards for evaluating whether psychological treatments, such as efforts to change

24

sexual orientation, are effective” (p. 2). Based on its review of the studies that met acceptable standards, the Task Force concluded that “enduring change to an individual’s sexual orientation is

25

uncommon. The participants in this body of research continued to experience same-sex attractions following SOCE [sexual orientation change efforts] and did not report significant

26

change to other-sex attractions that could be empirically validated, though some showed lessened physiological arousal to all sexual stimuli. Compelling evidence of decreased same-sex sexual

27

behavior and of engagement in sexual behavior with the other sex was rare. Few studies provided strong evidence that any changes produced in laboratory conditions translated to daily life. Thus,

28

the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE” (pp. 2-3).

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1 statements cautioning professionals and the public about these treatments.15 These include the

2 American Psychiatric Association, American Psychological Association, American Counseling

3 Association, and National Association of Social Workers. Further, since adolescents may be

4 subjected to these treatments after disclosing to their families that they are gay, lesbian, or

5 bisexual, the American Academy of Pediatrics has adopted a policy statement advising that

6 therapy directed specifically at attempting to change an adolescent’s sexual orientation should be

7 avoided and is unlikely to result in change. The Pan American Health Organization, which is the

8 World Health Organization’s regional office for the Americas and the oldest public health

9 organization in the world, has stated that “there is no scientific evidence for the effectiveness” of 10 efforts to change sexual orientation.16

11

28. In summary, there is convergent scientific evidence documenting that sexual

12 orientation reflects an enduring set of attractions and experiences for most people. Efforts to

13 change a person’s sexual orientation through religious or psychotherapy interventions have not

14 been shown to be effective.

15 III. Sexual Orientation Does Not Affect a Person’s Ability to Function Effectively

16

29. The consensus view of scientific researchers and mental health professionals is

17 that homosexuality is a normal expression of human sexuality. Homosexuality is not a mental

18 illness, and being gay or lesbian has no inherent association with a person’s ability to participate 19 in or contribute to society.17 Lesbians and gay men are as capable as heterosexuals of leading a

20 happy, healthy, and productive life. They are also as capable as heterosexuals of doing well in

21 their jobs and of excelling in school.

22

30. Although homosexuality was once believed to be a mental illness, that mistaken

23 view was discredited by scientific research beginning in the 1970s. In 1973, the American

24 Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of

25 Mental Disorders, noting that “homosexuality per se implies no impairment in judgment, stability,

26

15 These policy statements are compiled in Just the Facts About Sexual Orientation and Youth: A Primer for Principals, Educators, and School Personnel, a publication that is available from the

27

Just the Facts Coalition on the American Psychological Association’s website: http://www.apa.org/pi/lgbt/publications/just-the-facts.pdf.

28

16 Pan American Health Organization, 2012. 17 Herek, 2010; Herek & Garnets, 2007.

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1 reliability, or general social or vocational capabilities.”18 In 1975, the American Psychological

2 Association endorsed this position and urged psychologists to help educate the public and to 3 dispel the stigma of mental illness associated with homosexuality.19

4

31. Gay and lesbian individuals are subject to the same stresses of life as their

5 heterosexual counterparts, including the death of a close relative, loss of a job, or a serious illness.

6 Research consistently demonstrates that high levels of stress are harmful not only to 7 psychological well-being but also to physical health.20 In addition to the life stresses that can

8 affect everyone, members of stigmatized minority groups, including gay men and lesbians as well

9 as ethnic/racial minorities, may experience additional stress caused by prejudice and 10 discrimination. This has been termed “minority stress.”21 This excess stress has been associated

11 with an increased risk of psychological problems, especially those like anxiety and depression 12 that are most closely linked to stress.22 Despite the pervasive social stigma against homosexuality

13 and the resulting unique social stressors lesbians and gay men experience, the vast majority of

14 lesbian and gay individuals cope successfully with these challenges and lead healthy, happy, well-

15 adjusted lives. And there is nothing about sexual orientation itself – whether one is heterosexual

16 or homosexual – that makes a person more or less able to contribute to or participate in society.

17

32. Social relationships can play an important role in buffering individuals from the

18 stresses of life. Like heterosexuals, lesbians and gay men benefit from having a close intimate

19 relationship, for example, with a spouse. Further, people benefit from the social, emotional, and

20 material support that can be provided by family, friends, and others. Research also documents

21 that the psychological well-being of lesbians and gay men is enhanced by having positive feelings

22 about being gay, having developed a positive sense of gay identity, and being open about their 23 sexual orientation with important other people, such as family members.23

24 18 American Psychiatric Association, 1974. For other resolutions by this organization, see

25

http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx. 19 Conger, 1975. Also, the American Psychological Association has endorsed several resolutions

26

concerning sexual orientation. These can be found at: http://www.apa.org/pi/lgbt/resources/policy/index.aspx.

27

20 Thoits, 2010. 21 Meyer, 2003, 2007.

28

22 Herek & Garnets, 2007; Pascoe & Richman, 2009. 23 Herek & Garnets, 2007; Meyer, 2003; Pachankis, 2007; Pascoe & Richman, 2009.

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1 IV. Scientific Research Into Same-Sex Couples’ Relationships Establishes That They

2

Closely Resemble Different-Sex Couples’ Relationships

3

33. Negative stereotypes about same-sex couples are common in America, leading

4 many people to believe and argue that same-sex relationships are fundamentally different from,

5 and inferior to, heterosexual relationships. But the consensus of the scientific research is that this

6 characterization is inaccurate.

7

34. Lesbians and gay men are as able to form loving, committed relationships with a

8 same-sex partner as are heterosexuals in committed relationships with a different-sex partner.

9 Empirical research has repeatedly shown that gay men and lesbians have happy, satisfying 10 relationships.24 Like their heterosexual counterparts, lesbians and gay men form deep emotional

11 bonds and strong commitments to their partners. Research documents striking similarities

12 between same-sex and heterosexual couples on standardized measures of love, relationship

13 satisfaction, and relationship adjustment. The extensive body of research that examines the

14 quality and functioning of same-sex relationships demonstrates that same-sex couples are not

15 inherently different from heterosexual couples. To the contrary, same-sex couples closely

16 resemble heterosexual couples and the processes that affect both types of relationships are 17 remarkably similar.25

18

35. Lesbians and gay men, like heterosexuals, value committed relationships and a

19 majority would like to marry. In a national survey,26 74% of lesbians and gay men said that if

20 they could legally marry someone of the same sex, they would like to do so.

21

36. Scientific research consistently shows that the same factors that contribute to

22 commitment and stability in different-sex couples apply to same-sex couples. One factor is the

23 quality of a couple's relationship. As noted above, research shows that, on average, same-sex and

24 different-sex relationships are equally satisfying and well-adjusted. Couples with more satisfying

25 relationships are more likely to stay together than other couples, regardless of sexual orientation.

26 A second factor that contributes to commitment and stability within different-sex and same-sex

27 24 Kurdek, 2004, 2005; Peplau & Fingerhut, 2007.

28

25 American Psychological Association, 2004. 26 Kaiser Family Foundation, 2001.

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1 couples alike are barriers that make it difficult for a person to leave a relationship. Research

2 demonstrates that, as with their heterosexual counterparts, lesbians and gay men who perceive

3 more barriers to terminating a relationship are more likely to remain together. Third, certain

4 demographic characteristics of different-sex couples are consistently correlated with breakup

5 rates (e.g. their age at marriage, race, level of education, and religious affiliation). It is likely that

6 the same demographic characteristics that predict stability and instability in different-sex couples

7 also apply to same-sex couples.

8

37. In 2004, based on a review of research on marriage and same-sex relationships, the

9 American Psychological Association passed a Resolution on Sexual Orientation and Marriage,27

10 in which it concluded that “many lesbians and gay men have formed durable relationships” and

11 “the factors that predict relationship satisfaction, relationship commitment, and relationship

12 stability are remarkably similar for both same-sex cohabiting couples and heterosexual married

13 couples.”

14 V. Barring Same-Sex Couples from Marriage Causes Them Harm

15

38. There is widespread consensus among social science researchers that marriage

16 generally provides many benefits to both spouses. A large body of scientific research comparing

17 heterosexuals who are currently married to those who are not married establishes that marriage 18 fosters psychological well-being, physical health, and longevity.28 Of course, marriages that are

19 unhappy, conflict-ridden, or violent do not provide the same benefits as the average marriage.

20

39. Studies consistently associate marriage with better health and greater longevity;

21 marriage also has a moderating effect on individual risk-taking behavior.29 Illustrative data come

22 from a report by the U.S. Center for Disease Contro1.30 Using a large national database, CDC

23 researchers found that regardless of age, sex, race, ethnicity, education, or income, married adults

24 were on average healthier than cohabiting, divorced, widowed, or never married adults. Married

25 27 American Psychological Association, 2004. 28 E.g., Cherlin, 2009; Johnson, et al., 2000; Kim & McKenry, 2002; Lamb, Lee, & DeMaris,
26 2003; Nock, 1995; Proulx, et al., 2007; Schoenborn, 2004; Umberson, 1992; Waite, 1995. 29 Hu & Goldman, 1990; Johnson et al., 2000; Waite, 1995; Waldron, Hughes, & Brook, 1996.
27 30 Schoenborn, 2004. Marital status and health: United States, 1999-2002. Advance

28

Data from Vital and Health Statistics, Number 351, December 15, 2004. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services.

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1 individuals reported lower rates of smoking, drinking heavily, or being physically inactive

2 (although married men were more likely to be overweight than other men). Married adults also

3 reported lower rates of being limited in their daily activities of living, being in poor health, or

4 suffering from headaches or serious psychological distress. Other research using national data

5 reliably demonstrates that, on average, married individuals live longer than unmarried

6 individuals.

7

40. Marriage is also associated with enhanced psychological well-being. On average,

8 married individuals report less anxiety and depression and greater happiness and satisfaction with 9 life than do unmarried individuals.31

10

41. There are two explanations for the clear differences observed between married and

11 unmarried individuals.32 One explanation is known as the selection effect: to some extent,

12 individuals with better mental and physical health are more likely to choose to marry and/or better

13 able to attract a partner and maintain a relationship over time. Using a variety of research

14 methods, researchers have demonstrated that the selection effect only partially accounts for the

15 physical and psychological differences found between married and unmarried individuals. These

16 research methods include longitudinal studies of the effects of marriage over time, longitudinal

17 studies of transitions into or out of marriage, and studies that statistically control for factors such

18 as income that are known to be associated with health. For example, one longitudinal study

19 found that individuals who married between the first and second assessment were less depressed

20 at the time of the second assessment than those who remained unpartnered. This suggests that 21 getting married on average led to a reduction in depression.33

22

42. The second explanation for the positive physical and psychological benefits of

23 marriage is known as the protection effect.34 There are many ways in which marriage can provide

24 protective benefits that contribute to the health and well-being of spouses. The marriage

25

26

31 Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Proulx, et al., 2007; Waite, 1995. 32 Gove, Hughes, & Style, 1984; Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Waldron,

27

Hughes, & Brook, 1996. 33 Lamb, Lee, & DeMaris, 2003.

28

34 Cherlin, 2009; Gove, Hughes, & Style, 1984; Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Waldron, Hughes, & Brook, 1996.

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1 relationship is a social union and a legal contract that creates a well-recognized and valued

2 kinship relationship. Marriage binds spouses not only to each other but can also bind individuals

3 to the broader community, which understands, appreciates, and values the significance of the

4 marriage relationship. Marriage often “provides individuals with a sense of obligation to others, 5 which gives life meaning beyond oneself.”35 For many people, marriage has great symbolic

6 significance, establishing that the individual has a new social identity and is part of a valued and

7 respected social institution.

8

43. In addition, marriage often entails a moral commitment by spouses to support each

9 other “in sickness and in health.” Spouses often help each other to adopt more healthful

10 lifestyles, cope with the stress and uncertainty of life, and recuperate from illness and injury.

11

44. The security of marriage often enables spouses to adopt a long-term perspective,

12 putting off immediate rewards to build a future life together and encouraging mutual sacrifice. 13 This has been referred to as “enforceable trust.”36

14

45. One way that couples express the symbolic significance of their marriage is

15 through a wedding ceremony. Although cultures have differing traditions and individual couples

16 may choose to depart from certain customs and traditions, the celebration of a wedding is a ritual

17 that is important to the couple, their respective families, and the larger community. Wedding

18 ceremonies are typically state-sanctioned public rituals that signify not only the joining together

19 of the spouses, but the creation of new extended families and in-laws with shared interests and

20 mutual obligations. The formation of a marriage transforms biological strangers into kin.

21 Wedding ceremonies usually also involve members of the broader community – friends, co-

22 workers, neighbors – who come together to recognize the new status of the couple and their

23 changed position in their community.

24

46. Marriage is widely regarded as one of the most important rites of passage for

25 adulthood, and it marks a major transition in a person’s life. For many, marriage signifies entry

26 into full adulthood, with expectations that the individual will act in more mature ways. The sense

27 of being a responsible adult may be one reason why married individuals engage in less risky

28

35 Waite, 1995. 36 Cherlin, 2009.

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1 behavior than their unmarried peers. The marriage relationship itself is associated with certain

2 duties and responsibilities – for example, that spouses should care for each other and build a life

3 together.

4

47. When a couple marries, they may bring with them separate networks of family,

5 friends, and others who can support them in time of need. Marriage often merges these support

6 networks, expanding the circle of valued confidants, help givers, and others who are available to

7 the couple. Marriage typically involves spouses in new sets of social obligations: the new

8 responsibilities of each spouse toward their in-laws are complemented by the obligations of the

9 extended family to support the married couple.

10

48. Social support is central to the institution of marriage. Compared to unmarried

11 individuals, married adults tend to receive more social support from other people, especially from

12 their parents, and this support contributes to individual well-being. The public aspect of marriage

13 can increase each spouse’s sense of security that the relationship will be long-lasting.

14

49. Although these conclusions are derived from studies of heterosexual couples, it is

15 reasonable to infer that same-sex couples will generally benefit from marriage as do their

16 heterosexual counterparts. This idea is supported by the many well-established similarities in the 17 nature and quality of same-sex and heterosexual couples’ relationships.37 As it does for many

18 different-sex couples, marriage for many same-sex couples would create bonds between the

19 spouses and a social network of in-laws, friends, and others who can provide emotional support

20 and tangible assistance. As with different-sex couples, marriage would bind same-sex couples

21 together in a well-understood and highly valued social union and legal contract.

22

50. Marriage embodies many cultural values and expectations, often reflected in

23 marriage vows by which spouses pledge to love and care for each other, to be faithful to each

24 other, and to stay together through good times and bad until separated by death. These cultural

25 expectations provide a framework that individuals can draw upon to understand and build a

26 relationship together. These cultural expectations also provide guidelines that relatives and

27 society can draw on. In this regard, marriage is expected to have benefits for same-sex couples

28 37 Kurdek, 2004, 2005; Peplau & Fingerhut, 2007.

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1 that are not offered by domestic partnerships, which are not as well understood, appreciated, or

2 respected by the community as marriage.

3

51. Recent data of same-sex spouses in Massachusetts offer important insights on the

4 experience of married lesbian and gay American couples.38 Most lesbians and gay men reported

5 that marriage had improved their social relationships: 62% said their family was more accepting

6 of their partner and 41% said their family was more accepting of their sexual orientation. In

7 addition, 69% felt more accepted in their community. Most respondents said that their parents

8 reacted positively to their marriage (82%) as did their siblings (91%). Lesbians and gay men

9 were also asked about ways that marriage had improved their relationship. A majority (72%)

10 agreed that they felt more committed to their partner. Many reported that they now worry less

11 about legal problems (48%) and nearly a third said that one of the spouses receives health benefits

12 from an employer as a result of marriage. Other benefits mentioned included feeling more

13 accepted by society (38%) and feeling more financially stable (14%). One in four of the same-

14 sex couples surveyed were raising children, and 93% of these respondents agreed that their

15 children were happier or better off as a result of their marriage; 2% disagreed, and 4% were

16 unsure.

17

52. Leading organizations of mental health professionals recognize the benefits of

18 marriage for same-sex couples and the harm created by denying access to civil marriage to same-

19 sex couples. As one example, in 2005 the American Psychiatric Association, the leading

20 organization representing physicians in the field of mental health, adopted a policy statement on

21 this issue. Their resolution stated: “In the interest of maintaining and promoting mental health,

22 the American Psychiatric Association supports the legal recognition of same-sex civil marriage

23 with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions 24 to those same rights, benefits, and responsibilities.”39 Further, in its Resolution on Sexual 25 Orientation and Marriage,40 the American Psychological Association resolved “[t]hat APA

26 believes that it is unfair and discriminatory to deny same-sex couples legal access to civil

27 38 Ramos, Goldberg & Badgett, 2009.

28

39 American Psychiatric Association, 2005. 40 American Psychological Association, 2004.

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1 marriage and all its attendant benefits, rights, and privileges.”

2 VI. Barring Same-Sex Couples from Marriage Reflects and Perpetuates Stigma Against

3

Lesbians, Gay Men, and Same-Sex Couples

4

53. Lesbian, gay, and bisexual individuals are the targets of prejudice and

5 discrimination in the United States.41 National opinion surveys document that many Americans

6 have negative attitudes toward this group of people and toward marriage for same-sex couples.

7 Research has also documented that heterosexuals often view same-sex couples more negatively 8 than heterosexual couples.42 Gay, lesbian, and bisexual individuals experience discrimination at 9 work and in their communities,43 and most states provide no legal protection against

10 discrimination based on sexual orientation. Significant numbers of gay, lesbian, and bisexual 11 individuals are targets of harassment and violence.44 These facts demonstrate that gay, lesbian,

12 and bisexual individuals experience pervasive social stigma.

13

54. Social stigma refers to severe social disapproval of a class of people perceived as

14 being different, deviant, or in violation of cultural norms.45 In American society today, gay men,

15 lesbians, and bisexuals continue to be a highly stigmatized minority group. Many heterosexuals,

16 who are the dominant group in society, perceive gay men, lesbians, bisexuals, and same-sex

17 couples, as fundamentally different, hold negative stereotypes about their characteristics, and

18 view discrimination against them as acceptable. Social stigma is reflected both in the acts of

19 individuals and in the institutions of society, including its laws, that legitimate and perpetuate the

20 second-class status of gay men, lesbians, bisexuals, and same-sex couples.

21

55. By prohibiting same-sex couples from marrying, Nevada law both reflects and

22 perpetuates stigma against lesbians, gay men, and same-sex couples. Nevada law devalues and

23 delegitimizes the relationships of legally married same-sex couples. By giving heterosexuals

24 exclusive access to the benefits associated with the institution of marriage, Nevada law

25 perpetuates power differentials between heterosexual citizens and non-heterosexual citizens.

26 41 Herek, 2009a.

27

42 Testa, Kinder & Ironson, 1987. 43 Herek, 2009b.

28

44 Herek, 2009b. 45 Herek, 2009a.

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1 Nevada law signals that in the eyes of the state, the committed relationships of same-sex couples

2 are inferior to different-sex relationships and that partners in same-sex relationships are less

3 deserving of social recognition and government protection. The stigma perpetuated by Nevada

4 law affects not only individuals in committed relationships with a person of the same sex, but all

5 gay, lesbian, and bisexual individuals as a group.

6 VII. There Is No Evidence That Heterosexual Relationships Would Be Harmed If

7

Same-Sex Couples Were Permitted To Marry

8

56. For many decades, social scientists have studied and analyzed the factors that

9 contribute to rates of divorce.46 There is a scientific consensus about the key factors that may be

10 responsible. First, increasing employment opportunities for women have led to a dramatic

11 increase in the percentage of married women in the workforce. Paid employment gives wives

12 greater economic independence from their husbands which in turn makes it more feasible to end

13 an unhappy marriage. Second, since the 1970s, economic opportunities for men without college

14 education have diminished, adding financial stress to the lives of some married couples. Third,

15 there have also been important changes in public attitudes. Public acceptance of divorce has

16 increased, as has the social acceptability of unmarried cohabitation. Some scholars also suggest

17 that a growing emphasis on individualism and personal fulfillment has eroded an earlier emphasis

18 on the importance of obligation and commitment in marriage. Fourth, state “no-fault” divorce

19 laws have made it easier for spouses to end their relationships.

20

57. In addition, research has identified several demographic characteristics that are

21 associated with an increased likelihood of divorce.47 First, age at marriage matters: people who

22 marry as teenagers are more likely to divorce than those who are in their 20s or older. Second,

23 unemployment and low incomes are associated with greater rates of marital dissolution. Third, so

24 too is race or ethnicity. African Americans have significantly higher rates of marital separation,

25 Asian Americans have lower rates, and other groups fall in between. Fourth, individuals whose

26 parents divorced while they were growing up are at greater risk of divorce. Although a

27 46 Cherlin, 2009; Coontz, 2007; Bramlett & Mosher, 2002; Teachman, 2002.

28

47 Amato, 1996; Bramlett & Mosher, 2002; Heaton, 2002; Lehrer & Chiswick, 1993; Raley & Sweeney, 2007.

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1 correlation exists, there is no scientific evidence that these demographic characteristics in and of

2 themselves cause relationships to end. When spouses are similar on such characteristics as

3 religion and age, the risk of divorce is lower.

4

58. None of these factors uniquely correlates with same-sex couples or with allowing

5 them to marry. Allowing same-sex couples to marry would not alter state marriage laws,

6 economic opportunities for married heterosexual women or men, public attitudes toward divorce

7 or cohabitation, or personal values of individualism or commitment. Nor would it affect the age

8 at which heterosexuals decide to marry, their personal history of parental divorce, their choice of

9 a similar or dissimilar partner, or their race or ethnicity. Indeed, the fact that lesbians and gay

10 men, a class of citizens formerly denied legal marriage, are seeking to obtain marriage rights

11 could be seen as beneficial, because it broadens the scope of support for the value of marriage as

12 a central social institution in American society.

13

59. Allowing same-sex couples to marry would not affect the quality, stability, or

14 longevity of different-sex relationships. The quality of a heterosexual couple’s marriage depends

15 on such factors as the spouses’ personalities, their communication styles and ways of handling

16 conflict with each other, the stress a couple experiences, and the social support and resources

17 available to the couple. None of these factors is altered if a same-sex couple living down the

18 block gets married. In addition, the stability of marriages between different-sex couples depends

19 on barriers to divorce, including investments the spouses have made in each other and their

20 relationship, their moral and personal convictions about marriage, the options they see available

21 outside of marriage, and the many legal, financial, and social obligations that come with a

22 marriage license. Finally, the longevity of a marriage is also affected by the spouses’

23 demographic characteristics — their age at marriage, race, level of education, and religious

24 affiliation. These factors are not influenced by the marital status of other couples. In short, there

25 is no scientific basis for the proposition that allowing same-sex couples to marry would affect the

26 underlying processes that foster stability in different-sex marriages.

27

60. In response to an effort to ban marriage for same-sex couples, the Executive Board

28 of the American Anthropological Association, the world’s largest organization of anthropologists,

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1 issued the following statement:

2

The results of more than a century of anthropological research on households,

kinship relationships, and families, across cultures and through time, provide no

3

support whatsoever for the view that either civilization or viable social orders

depend upon marriage as an exclusively heterosexual institution. Rather,

4

anthropological research supports the conclusion that a vast array of family types,

including families built upon same-sex partnerships, can contribute to stable and

5

humane societies.48

6

61. Further, recent data from Massachusetts, where marriage for same-sex couples

7 became available in May 2004, do not support the contention that the marriages of same-sex

8 couples affects marriage for different-sex couples. An examination of statistical data from 2000

9 to 2010 (the most recent data available) indicates that marriage of same-sex couples has not led to 10 a decline in marriage nor to an increase in divorce in Massachusetts.49 As shown in the table

11 below, there are minor fluctuations in rates of marriage and divorce from year to year in

12 Massachusetts; this is typical across all states in the U.S.

13

Massachusetts Marriage and Divorce Rates Per 1,000 Residents by Year

14

Before 2004

After 2004

15

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

16 Marriage 5.8 6.2 5.9 5.6

6.5 6.2 5.9 5.9 5.7 5.6 5.6

17 Divorce 2.5 2.4 2.5 2.5

2.2 2.2 2.3 2.3 2.0 2.2 2.5

18

62. In the four years prior to when same-sex couples were permitted to marry (2000-

19 2003), the average marriage rate was 5.9 marriages per 1,000 total population in the state. In the

20 seven years after same-sex couples were permitted to marry (2004-2010), the average marriage

21 rate was 5.9. Divorce rates from Massachusetts are also informative. In the four years prior to

22 when same-sex couples were permitted to marry (2000-2003), the average divorce rate was 2.5.

23 In the seven years after same-sex couples were permitted to marry (2004-2010), the divorce rate

24 has been lower, averaging 2.2.

25 48 American Anthropological Association, 2004. 26 49 Marriage rates by State: 1990, 1995, and 1999-2010, Division of Vital Statistics, National

Center for Health Statistics, CDC. Available at: 27 http://www.cdc.gov/nchs/data/nvss/marriage_rates_90_95_99-10.pdf. Divorce rates by State:

28

1990, 1995, and 1999-2010, Division of Vital Statistics, National Center for Health Statistics, CDC. Available at: http://www.cdc.gov/nchs/data/nvss/divorce_rates_90_95_99-10.pdf.

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Exhibit A

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August, 2012

Letitia Anne Peplau

Distinguished Research Professor Department of Psychology University of California, Los Angeles, CA 90095-1563 Telephone: (310) 825-1187 FAX: (310) 206-5895 Email: lapeplau@ucla.edu

Education

B.A. in Honors Psychology, Brown University, 1968 (Summa cum laude) Ph.D. in Social Psychology, Harvard University, 1973

Academic Positions at UCLA

1973-2010 2010 2011 1983-1988 1985-1986 1988-1990 1994-1995 1999-2011 2005-2011
2004-present

Professor of Psychology Distinguished Professor of Psychology Distinguished Professor of Psychology, emeritus Director, Graduate Program in Social Psychology Associate Director, Center for the Study of Women Acting Co-Director, Center for the Study of Women Director, Graduate Program in Social Psychology Faculty Affiliate, UCLA Center for the Study of Women Director, NSF IGERT Interdisciplinary Relationship Science Program, UCLA Vice Chair for Graduate Studies, UCLA Psychology Department

Honors and Professional Societies

Danforth Graduate Fellowship, 1968-1973 National Science Foundation Predoctoral Fellowship, 1968-1970 Phi Beta Kappa Sigma Xi American Psychological Association (elected fellow in Divisions 8, 9, 35 and 44) Association for Psychological Science (fellow) American Sociological Association Society for Experimental Social Psychology Society for the Psychological Study of Social Issues International Academy of Sex Research Society for the Scientific Study of Sexuality Outstanding Achievement Award, Committee on Lesbian and Gay Concerns, APA, 1986 President, International Society for the Study of Personal Relationships, 1994-1996 Distinguished Scientific Achievement Award, Society for the Scientific Study of Sexuality,
1997 Monette/Horwitz Trust Award for Research on Gay, Lesbian, and Bisexual Studies, 2000. Outstanding Faculty Award, UCLA Lesbian, Gay, Bisexual and Transgender
Campus Center, June 2001. Distinguished Publication Award 2001, Association for Women in Psychology Distinguished Scientific Contribution Award, Division 44, APA, 2002 Invited Master Lecture at the annual meeting of the American Psychological Association, 2002.

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Elected to membership in the International Academy of Sex Research, 2003 Distinguished Teaching Award, UCLA Psychology Department, 2003 Award for Distinguished Faculty Service, Women’s Studies Program, UCLA, 2005 Mentoring Award, International Association for Relationship Research, 2006 Distinguished “Elder” Award, APA National Multicultural Summit and Conference, 2007 Heritage Award for Research, APA Division 35 (Society for the Psychology of Women), 2007 Awarded the Evelyn Hooker Award for Distinguished Contribution by an Ally, APA Division
44 (Society for the Psychological Study of Lesbian, Gay and Bisexual Issues), 2008
Editorial Activities
Member, Editorial Board, Journal of Social Issues, 1974-1977 Member, Editorial Board, Social Psychology Quarterly, 1977-1979 Consulting Editor, Psychology of Women Quarterly, 1978-1980 Member, Editorial Board, Journal of Homosexuality, 1980-1985 Member, Editorial Board, SIGNS: A Journal of Women in Culture and
Society, 1981-1989 Member, Advisory Board, Journal of Personal and Social Relationships, 1985-1987 Consulting Editor, Journal of Personality and Social Psychology, 1985-1989 Member, Editorial Board, Journal of Psychology and Human Sexuality, 1987-1989 Member, Advisory Board, Advances in Personal Relationships, l986-1992 Member, Editorial Board, Journal of Social Issues, 1992-1995 Member, Advisory Board, Columbia University Press Series on Lesbian and
Gay Studies, 1993-2000 Associate Editor, SIGNS: A Journal of Women in Culture and Society, 2000-2005 Member, Editorial Board, Contemporary Perspectives on Lesbian, Gay, and Bisexual
Psychology, APA Books, 2001-2009 Member, Editorial Board, Sexuality Research and Social Policy: Journal
of NSRC, 2003-2011 Member, International Advisory Board, Ibadan Journal of Social Sciences, 2004-2010
Selected Recent Professional Activities
Member, Editorial Board, Psychology and Sexuality Member, Scientific Review Panel for the Placek Research Award Program, American
Psychological Foundation, 1995-2000 Member, Committee on Women in Psychology Network (representative from Division 8),
1998-present Member, Working Group on Same-Sex Families, American Psychological
Association, April 2004. Chair, Fellows Selection Committee, Society for the Psychological Study of Social Issues
(Div. 9 of APA), 2004-2005. Member, Fellows Selection Committee, Society for the Psychological Study of Lesbian, Gay
and Bisexual Issues (Div. 44 of APA), 2006-2008.
Books and Edited Volumes
Taylor, S. E., Peplau, L. A., & Sears, D. O. (2006). Social psychology, 12th Ed. Upper Saddle River, NJ: Prentice-Hall.

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Taylor, S. E., Peplau, L. A., & Sears, D. O. (2003). Social psychology, 11th Ed. Upper Saddle River, NJ: Prentice-Hall.
Published into Russian in 2004.
Peplau, L. A., & Garnets, L. D. (Eds.) (2000). Women's sexualities: Perspectives on sexual orientation and gender. Journal of Social Issues, 56 (whole number 2).
This volume was selected for the 2001 Distinguished Publication Award of the Association for Women in Psychology.
Taylor, S. E., Peplau, L. A., & Sears, D. O. (2000). Social psychology, 10th Ed. Upper Saddle River, NJ: Prentice-Hall.
Peplau, L. A., DeBro, S. C., Veniegas, R. C., & Taylor, P. (Eds.) (1999). Gender, culture and ethnicity. Mountain View, CA: Mayfield Publishing.
Taylor, S. E., Peplau, L. A., & Sears, D. O. (1997). Social psychology, 9th Ed. Upper Saddle R iver, NJ: Prentice-Hall.
Peplau, L. A. & Taylor, S. E. (Eds.) (1997). Sociocultural perspectives in social psychology. Upper Saddle River, NJ: Prentice-Hall.
Taylor, S. E., Peplau, L. A., & Sears, D. O. (1994). Social psychology, 8th Ed. Englewood Cliffs, NJ: Prentice-Hall.
Rubin, Z., Peplau, L. A., & Salovey, P. (1993). Psychology, 1st Ed. Boston, MA: Houghton-Mifflin.
Sears, D. O., Peplau, L. A., & Taylor, S. E. (1991). Social psychology, 7th Ed. Englewood Cliffs, NJ: Prentice-Hall.
Peplau, L. A., Sears, D. O., Taylor, S. E. , & Freedman, J. L. (Eds.) (1988). Readings in social psychology: Classic and contemporary contributions. Englewood Cliffs, NJ: Prentice-Hall.
Sears, D. O., Peplau, L. A., Freedman, J. L., & Taylor, S. E. (1988). Social psychology, 6th Ed. Englewood Cliffs, NJ: Prentice-Hall.
Sears, D. O., Freedman, J. L., & Peplau, L. A. (1985). Social psychology, 5th Ed. Englewood Cliffs, NJ: Prentice-Hall.
Peplau, L.A., & Goldston, S. E. (Eds.) (1984). Preventing the harmful consequences of severe and persistent loneliness. DHHS Publication No. (ADM) 84-1312. Washington, DC: U.S. Government Printing Office (Monograph).
Kelley, H. H., Berscheid, E., Christensen, A., Harvey, J., Huston, T., Levinger, G., McClintock, E., Peplau, L. A., & Peterson, D. (1983). Close relationships. New York: Freeman.
Reprinted (2002) by Percheron Press.
Peplau, L. A., & Jones, R. (Issue Editors) (1982). Homosexual couples. Journal of Homosexuality, 8 (whole number 2).

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Peplau, L. A., & Perlman, D. (Eds.) (1982). Loneliness: A sourcebook of current theory, research and therapy. New York: Wiley-Interscience. Published in Japanese translation in 1988 and in Russian in 1989.
Peplau, L. A., & Hammen, C. L. (Eds.) (1977). Sexual behavior: Social psychological issues. Journal of Social Issues, 33, (whole number 2).
Articles and Book Chapters
Ghavami, N., & Peplau, L. A. (revise and resubmit). An intersectional analysis of gender and ethnic stereotypes: Testing three hypotheses. Psychology of Women Quarterly.
Lavner, J., Waterman, J., & Peplau, L. A. (under review). Parent adjustment over time in gay, lesbian, and heterosexual parent families adopting from foster care. Journal of Orthopsychiatry.
Lavner, J., Waterman, J., & Peplau, L. A. (accepted for publication). Can gay and lesbian parents promote healthy development in high-risk children adopted from foster care? Journal of Orthopsychiatry.
Fingerhut, A.W. & Peplau, L. A. (forthcoming). Same-sex romantic relationships. In C. J. Patterson & A. R. D’Augelli (Eds.), Handbook of psychology and sexual orientation. New York: Oxford University Press.
Preciado, M. A. & Peplau, L. A. (2011). Self-perception of same-sex sexuality among heterosexual women: Association with personal need for structure. Self and Identity, doi:10.1080/15298868.2010.51572.
Ghavami, N., Fingerhut, A. W., Peplau, L. A., Grant, S. K., & Wittig, M. A. (2011). Testing a model of minority identity achievement, identity affirmation and psychological well-being among ethnic minority and sexual minority individuals. Cultural Diversity and Ethnic Minority Psychology, 17, 79-88.
Fingerhut, A. W., Peplau, L. A., & Gable, S. L. (2010). Identity, minority stress and psychological well-being among gay men and lesbians. Psychology and Sexuality, 1(2), 101-114.
Beals, K. P., Peplau, L. A., & Gable, S. L. (2009). Stigma management and well-being: The role of social support, cognitive processing, and suppression. Personality and Social Psychology Bulletin, 35, 867-879.
Conley, T. D., & Peplau, L. A. (2009). Gender and perceptions of romantic partners’ sexual risk. Journal of Sexual Medicine, 7, 794-802.
Conley, T. D., Roesch, S. C., Peplau, L. A., & Gold, M. S. (2009). Testing the positive illusions model of relationship satisfaction among gay and lesbian couples. Journal of Applied Social Psychology, 39, 1417-1431.
Peplau, L. A., Frederick, D. A., Yee, C., Maisel, N., Lever, J. & Ghavami, N. (2009). Body image satisfaction among heterosexual, gay and lesbian adults. Archives of Sexual Behavior, 38(5), 713725.

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Peplau, L. A., & Ghavami, N. (2009). The relationships of lesbians, gay men and bisexuals. In H. Reis & S. Sprecher (Eds.). The encyclopedia of human relationships. Thousand Oaks, CA: Sage Publications.
Frederick, D., Lever, J., & Peplau, L. A. (2008). The Barbie mystique: Satisfaction with breast size and shape across the lifespan. International Journal of Sexual Health, 20, 200-211.
Peplau, L. A. & Huppin, M. (2008). Masculinity, femininity and the development of sexual orientation in women. Journal of Gay and Lesbian Mental Health, 12(1/2), 147-167. Also published as a chapter in R. Mathy & J. Drescher (Ed.) Childhood gender nonconformity and the development of adult homosexuality (pp 147-167). Binghamton, NY: Haworth Press.
Peplau, L. A., & Fingerhut, A. W. (2007). The close relationships of lesbians and gay men. Annual Review of Psychology, 58. 10.1-10.20.
Frederick, D. A., Buchanan, G. M., Sadeghi-Azar, L., Peplau, L. A., Haselton, M. G., Berezovskaya, A., & Lipinski, R. E. (2007). Desiring the muscular ideal: Men’s body satisfaction in the United States, Ukraine, and Ghana. Psychology of Men and Masculinity, 8, 103-117.
Frederick, D., Lever, J., & Peplau, L. A. (2007). Interest in cosmetic surgery and body image: Views of men and women across the life span. Plastic and Reconstructive Surgery, 120, 14071415.
Fingerhut, A. W., & Peplau, L. A. (2006). The impact of social roles on stereotypes of gay men. Sex Roles, 55, 273-278.
Garnets, L., & Peplau, L. A. (2006). Sexuality in the lives of adult lesbian and bisexual women. In D. C. Kimmel, T. Rose, & S. David (Eds.) Research and clinical perspectives on lesbian, gay, bisexual, and transgender aging, pp. 70-90. New York: Columbia University Press.
Beals, K. P., & Peplau, L. A. (2006). Disclosure patterns within the social networks of gay men and lesbians. Journal of Homosexuality, 51(2), 101-120.
Lever, J., Frederick, D., & Peplau, L. A. (2006). Does size matter? Men’s and women’s views on penis size across the life span. Psychology of Men and Masculinity, 7(3), 129-143.
Frederick, D. A., Peplau, L. A., & Lever, J. (2006). The swimsuit issue: Correlates of body image in a sample of 52, 677 heterosexual adults. Body Image: An International Journal of Research, 3, 413-419.
Impett, E. A., & Peplau, L. A. (2006). ”His” and “her” relationships: A review of the empirical evidence. In A. Vangelisti & D. Perlman (Eds.), The Cambridge handbook of personal relationships (pp. 884-904). New York: Cambridge University Press.
Elsesser, K., & Peplau, L. A. (2006). The glass partition: Obstacles to cross-sex friendships at work. Human Relations, 59(8), 1077-1100.
Impett, E. A., Gable, S., & Peplau, L. A. (2005). Giving up and giving in: The costs and benefits of daily sacrifice in intimate relationships. Journal of Personality and Social Psychology, 89, 327-344.

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Impett, E. A., Peplau, L. A., & Gable, S. (2005). Approach and avoidance sexual motives: Implications for personal and interpersonal well-being. Personal Relationships, 12, 465-482.
This paper received “Distinguished Publication” award from the International Association for Relationships Research, July 20, 2008.
Fingerhut, A. W., Peplau, L. A., & Ghavami, N. (2005). A dual-identity framework for understanding lesbian experience. Psychology of Women Quarterly, 29, 129-139.
Beals, K. P., & Peplau, L. A. (2005) Identity support, identity devaluation and well-being among lesbians. Psychology of Women Quarterly, 29, 140-145.
Peplau, L. A., & Fingerhut, A. (2004). The paradox of the lesbian worker. Journal of Social Issues, 60(4), 719-735.
Peplau, L. A., Fingerhut, A., & Beals, K. P. (2004). Sexuality in the relationships of lesbians and gay men. In J. Harvey, A. Wenzel, & S. Sprecher (Eds.), Handbook of sexuality in close relationships (pp. 350-369). Mahwah, NJ: Erlbaum.
Peplau, L. A. & Beals, K. P. (2004). The family lives of lesbians and gay men. In A. Vangelisti (Ed.), Handbook of family communication (pp. 233-248). Mahwah, NJ: Erlbaum.
Peplau, L. A. (2003). Human sexuality: How do men and women differ? Current Directions in Psychological Science, 12(2), 37-40.
Reprinted in J. B. Ruscher & E. Y. Hammer (Eds.) (2004). Current directions in social Psychology (pp. 76-82). Upper Saddle River, NJ: Prentice Hall.
Impett, E. A., & Peplau, L. A. (2003). Sexual compliance: Gender, motivational, and relationship perspectives. Journal of Sex Research, 40, 87-100.
This paper received the 2004 Student Research Award from the Society for Sex Therapy and Research.
Impett, E. A., & Peplau, L. A. (2002). Why some women consent to unwanted sex with a dating partner: Insights from attachment theory. Psychology of Women Quarterly, 26, 360-370.
Beals, K., Impett, E., & Peplau, L. A. (2002). Lesbians in love: Why some relationships endure and others end. Journal of Lesbian Studies, 6(1), 53-64.
Garnets, L. D., & Peplau, L. A. (2002). A new paradigm for women’s sexual orientation: Implications for therapy. Women and Therapy, 24, 111-122. Reprinted in E. Kaschak & L. Tiefer (Eds.) (2002). A new view of women’s sexual problems (pp. 111-122.) Binghamton, NY: Haworth Press.
Impett, E. A., Beals, K. P., & Peplau, L. A. (2001-02). Testing the investment model of relationship commitment and stability in a longitudinal study of married couples. Current Psychology, 20(4), 312-326.
Reprinted in N. J. Pallone (Ed.) (2003), Love, romance, and sexual interaction: Research perspectives from Current Psychology (pp. 163-181). New Brunswick, NJ: Transaction Press.

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Peplau, L. A., & Beals, K. P. (2001). Lesbians, gay men and bisexuals in relationships. In J. Worell (Ed.), Encyclopedia of women and gender (pp. 657-666). San Diego, CA: Academic Press.
Beals, K. P., & Peplau, L. A. (2001). Social involvement, disclosure of sexual orientation, and the quality of lesbian relationships. Psychology of Women Quarterly. 25, 10-19.
Peplau, L. A. (2001). Rethinking women’s sexual orientation: An interdisciplinary, relationshipfocused approach. Personal Relationships, 8, 1-19.
Peplau, L. A., & Garnets, L. D. (2000). A new paradigm for understanding women’s sexuality and sexual orientation. Journal of Social Issues, 56(2), 329-350.
Garnets, L. D., & Peplau, L. A. (2000). Understanding women’s sexualities and sexual orientations: An introduction. Journal of Social Issues, 56(2), 181-192.
Peplau, L. A., & Spalding, L. R. (2000). The close relationships of lesbians, gay men and bisexuals. In C. Hendrick & S. S. Hendrick (Eds.), Close relationships: A sourcebook (pp. 111124). Thousand Oaks, CA: Sage Publications.
Veniegas, R. C., Taylor, P. L., & Peplau, L. A. (1999). A guide to resources about gender, culture and ethnicity. In L. A. Peplau, S. C. DeBro, R. C. Veniegas, & P. Taylor (Eds.) Gender, culture and ethnicity (pp 1-13). Mountain View, CA: Mayfield Publishing.
Peplau, L. A., Veniegas, R. C., Taylor, P. L., & DeBro, S. C. (1999). Sociocultural perspectives on the lives of women and men. In L. A. Peplau, S. C. DeBro, R. C. Veniegas, & P. Taylor (Eds.) Gender, culture and ethnicity (pp 23-37). Mountain View, CA: Mayfield Publishing.
Peplau, L. A., Spalding, L. R., Conley, T. D., & Veniegas, R. C. (1999). The development of sexual orientation in women. Annual Review of Sex Research, Vol 10, 70-99.
Vincent, P. C., Peplau, L. A., & Hill, C. T. (1998). A longitudinal application of the theory of reasoned action to women's career behavior. Journal of Applied Social Psychology, 28, 761-778.
Hill, C. T., & Peplau, L. A. (1998). Premarital predictors of relationship outcomes: A 15-year followup of the Boston Couples Study. In T. N. Bradbury (Ed.), The developmental course of marital dysfunction (pp. 237-278). New York: Cambridge University Press.
Peplau, L. A., Garnets, L.D., Spalding, L. R., Conley, T. D., & Veniegas, R. C. (1998). A critique of Bem’s “Exotic Becomes Erotic” theory of sexual orientation. Psychological Review, 105(2), 387-394.
Perlman, D., & Peplau, L. A. (1998). Loneliness. In H. S. Friedman (Ed.) Encyclopedia of mental health, Vol 2 (pp. 571-581). San Diego, CA: Academic Press.
Spalding, L. R., & Peplau, L. A. (1997). The unfaithful lover: Heterosexuals' stereotypes of bisexuals and their relationships. Psychology of Women Quarterly, 21, 611-625.
Veniegas, R. C., & Peplau, L. A. (1997). Power and the quality of same-sex friendships. Psychology of Women Quarterly, 21(2), 279-297.

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This article was awarded the Graduate Student Research Prize by APA Division 35 and the Association for Women in Psychology in 1997.
Veniegas, R. C., & Peplau, L. A. (1997). A guide to sociocultural resources in social psychology. In L. A. Peplau & S. E. Taylor (Eds.), Sociocultural perspectives in social psychology (pp. xivxx). Upper Saddle River, NJ: Prentice Hall.
Peplau, L. A., Cochran, S. D., & Mays, V. M. (1997). A national survey of the intimate relationships of African-American lesbians and gay men: A look at commitment, satisfaction, sexual behavior and HIV disease. In B. Greene (Ed.) Ethnic and cultural diversity among lesbians and gay men (pp 11-38). Newbury Park: Sage Publications.
Bui, K. T., Peplau, L. A., & Hill, C. T. (1996). Testing the Rusbult model of relationship commitment and stability in a 15-year study of heterosexual couples. Personality and Social Psychology Bulletin, 22, 1244-1257.
Peplau, L. A., Veniegas, R. C., & Campbell, S. M. (1996). Gay and lesbian relationships. In R. C. Savin-Williams & K. M. Cohen (Eds.), The lives of lesbians, gays, and bisexuals: Children to adults (pp. 250-273). New York: Harcourt Brace.
Wayment, H. A., & Peplau, L. A. (1995). Social support and well-being among lesbian and heterosexual women: A structural modeling approach. Personality and Social Psychology Bulletin, 21(11), 1189-1199.
Peplau, L. A. (1994). Men and women in love. In D. L. Sollie & L. S. Leslie (Eds.), Gender, families, and close relationships: Feminist research journeys (pp. 19-49). Thousand Oaks, CA: Sage Publications.
De Bro, S. C., Campbell, S. M., & Peplau, L. A. (1994). Influencing a partner to use a condom: A college student perspective. Psychology of Women Quarterly, 18, 165-182.
Peplau, L. A., Hill, C. T., & Rubin, Z. (1993). Sex-role attitudes in dating and marriage: A 15year followup of the Boston Couples Study. Journal of Social Issues, 40(3), 31-52.
Campbell, S. M., Peplau, L. A., & De Bro, S. C. (1992). Women, men, and condoms: Attitudes and experiences of heterosexual college students. Psychology of Women Quarterly, 16(3), 273288.
Garnets, L., Hancock, K. A., Cochran, S. D., Goodchilds, J., & Peplau, L. A. (1991). Issues in psychotherapy with lesbians and gay men: A survey of psychologists. American Psychologist, 46(2), 964-972.
Reprinted in D. R. Atkinson & G. Hackett (Eds.) (1998). Counseling diverse populations. New York: McGraw-Hill.
Campbell, S. M., Dunkel-Schetter, C. A., & Peplau, L. A. (1991). Perceived control and adjustment to infertility among women undergoing in vitro fertilization. In A. L. Stanton & C. A. Dunkel-Schetter (Eds.), Psychological adjustment to infertility (pp. 133-156). New York: Plenum.
Cochran, S. D., & Peplau, L. A. (1991). Sexual risk reduction behaviors among young heterosexual adults. Social Science and Medicine, 33(1), 25-36.

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Peplau, L. A. (1991). Lesbian and gay relationships. In J. C. Gonsiorek & J. D. Weinrich (Eds.), Homosexuality: Research findings for public policy (pp. 177-196). Newbury Park, CA: Sage Publications.
Reprinted in L. D. Garnets & D. C. Kimmel (Eds.) (1993). Psychological perspectives on lesbian and gay male experiences (pp. 395-419). New York: Columbia University Press.
Peplau, L. A., & Cochran, S. D. (1990). A relationship perspective on homosexuality. In D. P. McWhirter, S. A. Sanders, & J. M. Reinisch (Eds.), Homosexuality/heterosexuality: Concepts of sexual orientation (pp. 321-349). New York: Oxford University Press.
Peplau, L. A., & Conrad, E. (1989). Beyond nonsexist research: The perils of feminist methods in psychology. Psychology of Women Quarterly, 13, 381-402.
Peplau, L. A., & Campbell, S. M. (1989). Power in dating and marriage. In J. Freeman (Ed.), Women: A feminist perspective, 4th Ed. (pp. 121-137). Palo Alto, CA: Mayfield Publishing.
Reprinted in S. J. Ferguson (Ed.), (2001). Shifting the center: Understanding contemporary families, 2nd Ed. Mountain View, CA: Mayfield, pp. 142-152.
Peplau, L. A. (1988). Loneliness: New directions in research. Participate in the challenge of mental health and psychiatric nursing in 1988 (pp. 127-142). [Proceedings of the 3rd National Conference on Psychiatric Nursing, Montreal, Quebec, Canada.]
Peplau, L. A. (1988). Reading research reports in social psychology. In L. A. Peplau, D. O. Sears, S. E. Taylor, & J. L. Freedman (Eds.), Readings in social psychology: Classic and contemporary contributions, 2nd Ed. (pp.1-5). Englewood Cliffs, NJ: Prentice-Hall.
Peplau, L. A. (1987). Loneliness and the college student. In I. Z. Rubin & E. McNeil. The psychology of being human, 4th Ed. (pp. 475-479). New York: Harper & Row.
Cochran, S. D., & Peplau, L. A. (1985). Value orientations in heterosexual relationships. Psychology of Women Quarterly, 9, 477-488.
Blasband, D., & Peplau, L. A. (1985). Sexual exclusivity versus openness in gay male couples. Archives of Sexual Behavior, 14(5), 395-412.
Peplau, L. A., & Gordon, S. L. (1985). Women and men in love: Gender differences in close heterosexual relationships. In V. E. O'Leary, R. K. Unger, & B. S. Wallston Eds.), Women, gender and social psychology (pp. 257-291). Hillsdale, NJ: Lawrence Erlbaum.
Reprinted in T. Roberts (Ed.) (1997). The Lanahan readings in the psychology of women (pp. 246-268). Baltimore, MD: Lanahan Publishers.
Peplau, L. A. (1985). Loneliness research: Basic concepts and findings. In I. G. Sarason & B. R. Sarason (Eds.), Social support: Theory, research and application (pp. 270-286). Boston: Martinus Nijhof.
Peplau, L. A. (1985). Loneliness. In A. Kuper & J. Kuper (Eds.), The social science encyclopedia (p. 474). Boston: Routledge and Kegan Paul.

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Perlman, D., & Peplau, L. A. (1984). Loneliness research: A survey of empirical findings. In L. A. Peplau & S. E. Goldston (Eds.), Preventing the harmful consequences of severe and persistent loneliness (pp. 13-46). DHHS Publication No. (ADM) 84-1312. Washington, DC: U.S. Government Printing Office.
Caldwell, M. A., & Peplau, L. A. (1984). The balance of power in lesbian relationships. Sex Roles, 10, 587-600.
Reprinted in W. R. Dynes & S. Donaldson (Eds.) (1992), Studies in homosexuality, Vol VII: Lesbianism (pp. 27-39). New York: Garland Publishing.
Hill, C. T., Peplau, L. A., & Rubin, Z.(1983). Contraceptives use by college dating couples. Population and Environment: Behavioral and Social Issues, 6(1), 60-69.
Peplau, L. A. (1983). Roles and gender. In H. H. Kelley, et al., Close relationships (pp. 220-264). New York: Freeman.
Kelley, H. H., Berscheid, E., Christensen, A., Harvey, J., Huston, T., Levinger, G., McClintock, E., Peplau, L. A., & Peterson, D. (1983). Analyzing close relationships. In H. H. Kelley, et al., Close relationships (pp. 20-64). New York: Freeman.
Berscheid, E., & Peplau, L. A. (1983). The emerging science of relationships. In H. H. Kelley, et al., Close relationships (pp. 1-19). New York: Freeman.
Peplau, L. A., & Gordon, S. L. (1983). The intimate relationships of lesbians and gay men. In E. R. Allgeier & N. B. McCormick (Eds.), The changing boundaries: Gender roles and sexual behavior (pp. 226-244). Palo Alto, CA: Mayfield.
Reprinted in J. N. Edwards & D. H. Demo (Eds.) (1991). Marriage and family in transition (pp 479-496.) Boston: Allyn and Bacon.
Rook, K. S., & Peplau, L. A. (1982). Perspectives on helping the lonely. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 351-378). New York: Wiley.
Perlman, D., & Peplau, L. A. (1982). Theoretical approaches to loneliness. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 123-134). New York: Wiley.
Peplau, L. A., & Perlman, D. (1982). Perspectives on loneliness. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 1-18). New York: Wiley.
Peplau, L. A., Padesky, C., & Hamilton, M. (1982). Satisfaction in lesbian relationships. Journal of Homosexuality, 8(2), 23-35.
Peplau, L. A., Miceli, M., & Morasch, B. (1982). Loneliness and self evaluation. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 135-151). New York: Wiley.
Peplau, L. A., Bikson, T. K., Rook, K. S., & Goodchilds, J. D. (1982). Being old and living alone. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 327-347). New York: Wiley.
Peplau, L. A., & Amaro, H. (1982). Understanding lesbian relationships. In W. Paul & J. D. Weinrich (Eds.), Homosexuality: Social, psychological and biological issues (pp. 233-248). Beverly Hills, CA: Sage.

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Reprinted in T. Roberts (Ed.) (1997). The Lanahan readings in the psychology of women (pp. 269-280). Baltimore, MD: Lanahan Publishers.
Peplau, L. A. (1982). Research on homosexual couples: An overview. Journal of Homosexuality, 8(2), 3-8.
Reprinted in J. P. DeCecco (Ed.) (1988). Gay relationships (pp. 33-40). New York: Harrington Park Press.
Michela, J. L., Peplau, L. A., & Weeks, D. G. (1982). Perceived dimensions of attributions for loneliness. Journal of Personality and Social Psychology, 43(5), 929-936.
Caldwell, M. A., & Peplau, L. A. (1982). Sex differences in same-sex friendship. Sex Roles, 8(7), 721-732.
Berg, J., & Peplau, L. A. (1982). Loneliness: The relationship of self-disclosure and androgyny. Personality and Social Psychology Bulletin, 8(4), 624-630.
Rubin, Z., Peplau, L. A., & Hill, C. T. (1981). Loving and leaving: Sex differences in romantic attachments. Sex Roles, 7(8), 821-835.
Risman, B. J., Hill, C. T., Rubin, Z., & Peplau, L. A. (1981). Living together in college: Implications for courtship. Journal of Marriage and the Family, 43, 77-83.
Perlman, D., & Peplau, L. A. (1981). Toward a social psychology of loneliness. In S. Duck & R. Gilmour (Eds.), Personal relationships in disorder (pp. 31-56). London: Academic Press.
Reprinted in B. Earn & S. Towson (Eds.) (1986). Readings in social psychology (pp. l37l55). Peterborough, Canada: Broadview Press Ltd.
Peplau, L. A., & Cochran, S. D. (1981). Value orientations in the intimate relationships of gay men. Journal of Homosexuality, 6(3), 1-19.
Reprinted in J. P. DeCecco (Ed.) (1988). Gay relationships (pp. 195-216). New York: Harrington Park Press.
Peplau, L. A. (1981, March). What homosexuals want in relationships. Psychology Today, pp. 28-34, 37-38.
Peplau, L. A. (1981). Interpersonal attraction. In D. Sherrod (Ed.), Social psychology, 2nd Ed. (pp. 195-229). New York: Random House.
Hill, C. T., Peplau, L. A., & Rubin, Z. (1981). Differing perceptions in dating couples: Sex roles vs. alternative explanations. Psychology of Women Quarterly, 5(3), 418-434.
Weeks, D. G., Michela, J. L., Peplau, L. A., & Bragg, M. E. (1980). The relation between loneliness and depression: A structural equation analysis. Journal of Personality and Social Psychology, 39(6), 1238-1244.

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Russell, D., Peplau, L. A., & Cutrona, C. E. (1980). The revised UCLA loneliness scale: Concurrent and discriminant validity evidence. Journal of Personality and Social Psychology, 39(3), 472-480.
Rubin, Z., Hill, C. T., Peplau, L. A., & Dunkel-Schetter, C. (1980). Self-disclosure in dating couples: Sex roles and the ethic of openness. Journal of Marriage and the Family, 42(2), 305317.
Peplau, L. A. (1980). Sexual aspects of lesbian relationships. Medical Aspects of Human Sexuality, 14(3), 107.
Peplau, L. A. (1980). Lesbian mothers. Medical Aspects of Human Sexuality, 14(3), 136-137.
Falbo, T., & Peplau, L.A. (1981). Power strategies in intimate relationships. Journal of Personality and Social Psychology, 38(4), 618-628.
Rubenstein, C., Shaver, P., & Peplau, L. A. (1979, February). Loneliness. Human Nature, pp. 5865.
Peplau, L. A., Russell, D., & Heim, M. (1979). The experience of loneliness. In I. H. Frieze, D. Bar-Tal, & J. S. Carroll (Eds.), New approaches to social problems: Applications of attribution theory (pp. 53-78). San Francisco, CA: Jossey-Bass.
Peplau, L. A., & Perlman, D. (1979). Blueprint for a social psychological theory of loneliness. In M. Cook & G. Wilson (Eds.), Love and attraction (pp. 99-108). Oxford, England: Pergamon.
Peplau, L. A. (1979). Power in dating relationships. In J. Freeman (Ed.), Women: A feminist perspective, 2nd Ed. (pp. 106-121). Palo Alto, CA: Mayfield Publishing. Reprinted (1984) in the 3rd Edition.
Hill, C. T., Rubin, Z., Peplau, L. A., & Willard, S. G. (1979). The volunteer couple: Sex differences, couple commitment and participation in research on interpersonal relationships. Social Psychology Quarterly, 42(4), 415-420.
Russell, D., Peplau, L. A., & Ferguson, M. (1978). Developing a measure of loneliness. Journal of Personality Assessment, 42(3), 290-294.
Peplau, L. A., Russell, D., & Heim, M. (1978). Loneliness: A bibliography of research and theory. JSAS Catalog of Selected Documents in Psychology, 8, 38. (Ms. No. 1682.)
Peplau, L. A., Cochran, S., Rook, K., & Padesky, C. (1978). Loving women: Attachment and autonomy in lesbian relationships. Journal of Social Issues, 34(3), 7-27.
This article was awarded the Evelyn C. Hooker research award by the national Gay Academics Union, November 24, 1979.
Reprinted in L. Richardson & V. A. Taylor (Eds.) (1983) Feminist frontiers: Rethinking sex, gender & society (pp. 408-419). Reading, MA: Addison-Wesley.
Peplau, L. A., & Ferguson, M. (1978). Loneliness: A cognitive analysis. Essence, 2(4), 207220. (This is a Canadian gerontology journal that devoted a special issue to loneliness.)

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Hammen, C. L., & Peplau, L. A. (1978). Brief encounters: Impact of gender, sex-role attitudes, and partner's gender on interaction and cognition. Sex Roles, 4(1), 75-90.
Peplau, L. A., Rubin, Z., & Hill, C. T. (1977). Sexual intimacy in dating relationships. Journal of Social Issues, 33(2), 86-109.
Peplau, L. A., & Hammen, C. L. (1977). Social psychological issues in sexual behavior: An overview. Journal of Social Issues, 33(2), 1-6.
Peplau, L. A., Rubin, Z., & Hill, C. T. (1976). The sexual balance of power. Psychology Today, November, pp. 142, 145, 147, 151.
Reprinted in C. Gordon & G. Johnson (Eds.) (1976), Readings in human sexuality: Contemporary perspectives, 2nd Ed. New York: Harper & Row.
Reprinted in Annual Editions (1980), Readings in personal growth and adjustment 80/81. Guilford, CT: Dushkin.
Peplau, L. A. (1976). Fear of success in dating couples. Sex Roles, 2, 249-258.
Peplau, L. A. (1976). Impact of fear of success and sex-role attitudes on women's competitive achievement. Journal of Personality and Social Psychology, 34, 561-568.
Hill, C. T., Rubin, Z., & Peplau, L. A. (1976). Breakups before marriage: The end of 103 affairs. Journal of Social Issues, 32(1), 147-168.
Reprinted in A. Skolnick & J. Skolnick (Eds.) (1977), Family in transition, 2nd Ed. Boston, MA: Little, Brown & Co.
Reprinted in G. Levinger & O. C. Moles (Eds.) (1979), Divorce and separation: A survey of causes and consequences. New York: Basic Books.
Reprinted in Peplau, L. A., Sears, D. O., Taylor, S. E., & Freedman, J. L. (Eds.) (1988), Readings in social psychology: Classic and contemporary contributions. Englewood Cliffs, NJ: Prentice-Hall.
Rubin, Z., & Peplau, L. A. (1975). Who believes in a just world? Journal of Social Issues, 31(3), 65-90.
Reprinted (1977) in Reflections, XII(1), 1-26.
Rubin, Z., & Peplau, L. A. (1973). Belief in a just world and reactions to another's lot: A study of participants in the national draft lottery. Journal of Social Issues, 29(4), 73-94.
Peplau, L. A. (1972). Intergroup behavior. In Psychology today: An introduction (pp. 545-563). Del Mar, CA: CRM Books.
Peplau, L. A. (1972). Patterns of social behavior: The case of sex roles. In Psychology today: An introduction (pp. 487-500). Del Mar, CA: CRM Books.
Peplau, L. A. (1967). Infantile autism. Perspectives in Psychiatric Care, 5(3), 112-122.
Book Reviews

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Peplau, L.A. (1996). The wit and wisdom of a feminist sexologist. Psychology of Women Quarterly, 20, 173-174. (Review of "Sex is not a natural act and other essays")
Peplau, L. A. (1994). Is it a relationship if we're not having sex? Contemporary Boston Marriages. Journal of Sex Research, 31(3), 243-245. (Review of "Boston Marriages: Romantic but Asexual Relationships among Contemporary Lesbians")
Peplau, L. A. (1988). Review of "In search of parenthood: Coping with infertility and high-tech conception." Contemporary Psychology, 33(10), 919.
Peplau, L. A. (1982). Review of "The Anatomy of Loneliness" and "In Search of Intimacy." Journal of Psychosocial Nursing, 20(11), 38-39.
Peplau, L. A., & Gutek, B. (1979). Textbooks on the psychology of women: A review essay. Psychology of Women Quarterly, 4(1), 129-136.
Peplau, L. A. (1979). Review of "Friends and Lovers." American Journal of Sociology, 84(6), 1513-1514.
Peplau, L. A. (1977). Review of "The Hite Report" and "Sex and Personality." Psychology of Women Quarterly, 2(1), 86-88.
Peplau, L. A. (1977). An Introduction to Women's Studies. Contemporary Psychology, 22(12), 933-934. (Review of "Beyond Intellectual Sexism")
Peplau, L. A. (1977). Review of "Women and Achievement." Sex Roles, 3(6), 600-602.
Peplau, L. A. (1975). Assessing sexual innovation in marriage. Contemporary Psychology, 20(12), 941-942. (Review of "Beyond Monogamy")
Selected Recent Paper Presentations, Invited Addresses and Posters
Ghavami, N., Peplau, L. A., Sears, D. & Zawatsky, J. (January, 2012). Diagnosticity of gender and ethnic stereotypes. Society for Personality and Social Psychology, San Diego, CA.
Peplau, L. A. (August, 2010). Marriage equality for same-sex couples: Perspectives from relationship research in the United States. Invited Presidential Symposium presented at the annual meeting of the American Psychological Association, San Diego, CA.
Peplau, L. A. (August, 2010). Same-sex couples: Research, law and policy. Presented at the International Lesbian, Gay, Bisexual and Transgender Psychology Summer Institute, University of Michigan, Ann Arbor, MI.
Hill, C. T., & Peplau, L. A. (July, 2008). Is love blind? Attractiveness ratings by self, partner, and others, and the outcome of dating relationships 25 years later. Paper presented at the International Congress of Psychology, Berlin, Germany.

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Fingerhut, A. D., deRoulhac, C., Natale, C., & Peplau, L. A. (2008, February). Heterosexuals’ attitudes toward gay men and lesbians: Predictors of positive and negative attitudes. Poster presented at the annual meeting of the Society for Personality and Social Psychology, Albuquerque, NM.
Frederick, D.A., & Peplau, L.A. (2007, January). The UCLA Body Matrices II: Computergenerated images of men and women varying in body fat and muscularity/breast size to assess body satisfaction and preferences. Poster presented at the annual meeting of the Society for Personality and Social Psychology, Memphis, TN.
Mulrenan, T., Frederick, D.A., Sadeghi-Azar, L., Ha, J., Peplau, L.A., & Haselton, M.G. (2006, January). The UCLA Body Matrices as measures of body image and body type preferences. Poster presented at the annual meting of the Society for Personality and Social Psychology Conference, Palm Springs, CA.
Laird, K., Mulrenan, T., Frederick, D.A., Grigorian, K., Peplau, L.A., & Haselton, M.G. (2006, January). Sex differences in preferences for dating a taller romantic partner. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, Palm Springs, CA.
Sadeghi-Azar, L., Frederick, D.A., Mulrenan, T., Peplau, A., Haselton, M.G., & Fessler, D.M.T. (2006, January). Representations of the ideal male and female bodies in popular media. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, Palm Springs, CA.
Fingerhut, A. W., & Peplau, L. A. (2006, January). Symposium: Integrating social identity perspectives with research on the experiences of lesbians and gay men. Symposium presented at the annual meeting of the Society for Social and Personality Psychology, Palm Springs, CA.
Frederick, D.A., Haselton, M., Peplau, L.A., Mansourian, A., & Allameh, S. (2005, January). Sex differences in desires for sexual variety. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, New Orleans, LA.
Ghavami, N., Fingerhut, W., & Peplau, L. A. (2005, January). A dual-identity approach to understanding stress experiences of lesbians and gay men. Poster presented at the annual meeting of the Society for Social and Personality Psychology, New Orleans, LA.
Peplau, L.A., Frederick, D.A., Lever, J., Burklund, L., & Madrid, H. (2005, January). Correlates of body image dissatisfaction among 52,171 online respondents. Society for Personality and Social Psychology Conference, New Orleans, LA.
Sadeghi-Azar, L., Frederick, D.A., Allameh, S., Lever, J., & Peplau, L.A. (2005). Attitudes toward cosmetic surgery and the body across the lifespan. American Psychological Society Convention, Los Angeles, CA.
Peplau, L.A., Frederick, D.A., Lever, J., Kroskrity, E. (2005). Body image satisfaction among lesbian, gay, and heterosexual adults. American Psychological Society Convention, Los Angeles, CA.
Frederick, D.A., Lever, J., Peplau, L.A., Casey, J., & Berezovskaya, A. (2005). Does size matter? Attitudes toward breast size and shape among heterosexual adults. American Psychological Society Convention, Los Angeles, CA.

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Fingerhut. A.W., Peplau, L.A., & Ghavami, N. (2005, February). Gay and Lesbian Psychological Health: The Role of Identity. Poster presented at the National Multicultural Conference and Summit, Los Angeles, CA.
Fingerhut, A. W., & Peplau, L. A. (2005, January). Stereotypes of women in the workforce: The role of sexual orientation and parental status. Poster presented at the annual meeting of the Society for Personality and Social Psychology, New Orleans, LA.
Peplau, L. A., Lever, J., Frederick, D., Burklund, L., & Madrid, H. (2005, January). Correlates of body image dissatisfaction among 52,171 online respondents. Poster presented at the annual meeting of the Society for Social and Personality Psychology, New Orleans, LA.
Peplau, L. A. (2004, November 12). New directions in research on women’s sexual orientation. Invited colloquium, Institute for Social and Behavioral Research, Iowa State University, Ames, Iowa.
Peplau, L. A. (2004, September 29). The development of sexual orientation in women: A socialpsychological analysis. Invited colloquium, Psychology and Women’s Studies, University of Michigan, Ann Arbor, MI.
Peplau, L. A., Fingerhut, A., & Ghavami, N. (2004, July). Individual differences in gay-related stress: A dual-identity perspective.
Hill, C. T., & Peplau, L. A. (July, 2003). Sources of self-esteem: A 25-year study. Paper presented at the 29th Inter-American Congress of Psychology.
Peplau, L. A., & Impett, E. A. (2003, April 11). Sexual compliance: Why partners make "sexual sacrifices." Invited presentation, Society for the Scientific Study of Sexuality, Western Region Annual Conference, San Jose, CA.
Peplau, L. A. (April 11, 2003). Gender differences in sex and relationships. Invited address, Society for the Scientific Study of Sexuality, Western Region Annual Conference, San Jose, CA.
Hill, C. T., & Peplau, L. A. (March 28, 2003). Romantic beliefs and marital outcomes: A 25-year study. Paper presented at the Southeast Psychological Association, New Orleans, LA.
Peplau, L. A. (August, 2002). Venus and Mars in the lab: New research on gender and sexuality. Invited Master Lecture, annual meeting of the American Psychological Association, Chicago, IL.
Hill, C. T., & Peplau, L. A. (July, 2001). Life satisfaction: A 25-year follow-up of the Boston Couples Study. Presented at the VIIth European Congress of Psychology, London, England.
Peplau, L. A., & Garnets, L. D. (May, 2001). A new paradigm for understanding women’s sexual orientation. Presented at the annual meeting of the Western Psychological Association, Maui, Hawaii.

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Exhibit B

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1990, 1995, and 1999-2010. Retrieved June 10, 2012 from: http://www.cdc.gov/nchs/data/nvss/divorce_rates_90_95_99-10.pdf. Gove, W. R., Style, C. B., & Hughes, M. (1990). The effect of marriage on the well-being of adults: A theoretical analysis. Journal of Family Issues, 11, 4-35. Heaton, T. B. (2002). Factors contributing to increasing marital stability in the United States. Journal of Family Issues, 23(3), 392-409. Herek, G. M. (2000). Homosexuality. In A.E. Kazdin (Ed.), Encyclopedia of psychology (Vol. 4, pp. 149-153). Washington, DC: American Psychological Association. Herek, G. M. (2006). Legal recognition of same-sex relationships in the United States: A social science perspective. American Psychologist, 61, 607-621. Herek, G. M. (2009a). Sexual stigma and sexual prejudice in the United States: A conceptual framework. In D.A. Hope (Ed.), Contemporary perspectives on lesbian, gay and bisexual identities: The 54th Nebraska Symposium on Motivation (pp. 65-111). New York: Springer. Herek, G. M. (2009b). Hate crimes and stigma-related experiences among sexual minority adults in the United States: Prevalence estimates from a national probability sample. Journal of Interpersonal Violence, 24, 54-74. Herek, G. M. (2010). Sexual orientation differences as deficits: Science and stigma in the history of American psychology. Perspectives on Psychological Science, 5, 693-699. Herek, G. M., & Garnets, L. D. (2007). Sexual orientation and mental health. Annual Review of Clinical Psychology, 3, 353-375.

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Herek, G. M., Gillis, J. R., & Cogan, J. C. (2009). Internalized stigma among sexual minority adults: Insights from a social psychological perspective. Journal of Counseling Psychology, 56, 32-43.
Herek, G. M., Norton, A. T., Allen, T. J., & Sims, C. L. (2010). Demographic, psychological, and social characteristics of self-identified lesbian, gay, and bisexual adults in a U.S. probability sample. Sexuality Research and Social Policy, 7, 176-200.
Higgins, D. J. (2006). Same-sex attraction in heterosexually partnered men: Reasons, rationales and reflections. Sexual and Relationship Therapy, 21, 217-228.
Hu, Y., & Goldman, N. (1990). Mortality differentials by marital status: An international comparison. Demography, 27,233-250.
Johnson, N. J., Backlund, E., Sorlie, P. D., & Loveless, C. A. (2000). Marital status and mortality: The National Longitudinal Mortality Study. Annals of Epidemiology , 10, 224238 .
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Kaiser Family Foundation. (2001). Inside-out: A report on the experiences of lesbians, gays, and bisexuals in America and the public's view on issues and politics related to sexual orientation. Menlo Park, CA: Author. Retrieved August 16, 2012 from: http://www.kff.org/kaiserpolls/upload/New-Surveys-on-Experiences-of-Lesbians-Gaysand-Bisexuals-and-the-Public-s-Views-Related-to-Sexual-Orientation-Report.pdf.
Kim, H., & McKenry, P. C. (2002). The relationship between marriage and psychological

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well-being: A longitudinal analysis. Journal of Family Issues, 23, 885-911. Kinsey, A. C., Pomeroy, W. B., & Martin, C. E. (1948). Sexual behavior in the human male.
Philadelphia, PA: W. B. Saunders. Kinsey, A. C., Pomeroy, W. B., Martin, C. E., & Gebhard, P.H. (1953). Sexual behavior in the
human female. Philadelphia, PA: W. B. Saunders. Kurdek, L. A. (2004). Are gay and lesbian cohabiting couples really different from heterosexual
married couples? Journal of Marriage and Family, 66, 880-900 Kurdek, L. A. (2005). What do we know about gay and lesbian couples? Current Directions in
Psychological Science, 14, 251-54. Lamb, K. A., Lee, G. R., & DeMaris, A. (2003). Union formation and depression: Selection and
relationship effects. Journal of Marriage and Family, 65, 953-962. Laumann, E. O., Gagnon, J. H., Michael, R. T., & Michaels, S. (1994). The social organization
of sexuality: Sexual practices in the United States. Chicago: University of Chicago Press. Lehrer, E. L., & Chiswick, C. U. (1993). Religion as a determinant of marital stability.
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Pachankis, J. E. (2007). The psychological implications of concealing a stigma: A cognitiveaffective-behavioral model. Psychological Bulletin, 133, 328-345.
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Pascoe, E. A., & Richman, L. S. (2009). Discrimination and health: A meta-analytic review. Psychological Bulletin, 135, 531-554.
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Ramos, C., Goldberg, N. G., & Badgett, M. V. L. (2009, May). The effects of marriage equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex

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couples. The Williams Institute, UCLA Law School, Los Angeles, CA. Retrieved June 10, 2012 from: http://williamsinstitute.law.ucla.edu/wp-content/uploads/RamosGoldberg-Badgett-MA-Effects-Marriage-Equality-May-2009.pdf. Schoenborn, C. A. (2004). Marital status and health: United States, 1999-2002. Advance Data from Vital and Health Statistics, Number 351, December 15, 2004. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services. Teachman, J. D. (2002). Stability across cohorts in divorce risk factors. Demography, 39(2),331 351. Testa, R. J., Kinder, B. N. & Ironson, G. (1987). Heterosexual bias in the perception of loving relationships of gay males and lesbians. Journal of Sex Research, 23, 163-72. Thoits, P. S. (2010). Stress and health: Major findings and policy implications. Journal of Health and Social Behavior, 51 no. 1 supplement, S41-S53. Umberson, D. (1992). Relationships between adult children and their parents: psychological consequences for both generations. Journal of Marriage and the Family, 54(3), 664-674. Waite, L.T. (1995). Does marriage matter? Demography, 32, 483-507. Waldron, I., Hughes, M. E., & Brooks, T. L. (1996). Marriage protection and marriage selection—prospective evidence for reciprocal effects on marital status and health. Social Science and Medicine, 43, 113-123.

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

22 BRIAN SANDOVAL, et al.,

DECLARATION OF M.V. LEE BADGETT, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

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1

I, M.V. Lee Badgett, Ph.D., hereby declare and state as follows:

2

1. I am a Professor of Economics at the University of Massachusetts Amherst, where

3 I have taught since 1997. I also serve as the University’s Director of the Center for Public Policy

4 and Administration. I have been retained by counsel for Plaintiffs as an expert in connection with

5 the above-referenced litigation. I have actual knowledge of the matters stated in this Declaration

6 and could and would so testify if called as a witness.

7

2. I am currently the Research Director of the Williams Institute for Sexual

8 Orientation Law and Public Policy at the UCLA School of Law. From 2005 to 2007, I was a

9 visiting professor at UCLA School of Law. Prior to those positions, from 1990 to 1997 I was an

10 assistant professor of Public Affairs at the School of Public Affairs, University of Maryland,

11 College Park. I have conducted research at the Amsterdam School for Social Science Research,

12 University of Amsterdam, and conducted research and taught at the Women’s Studies and

13 Lesbian and Gay Studies programs of Yale University. I received my A.B. in Economics from

14 the University of Chicago in 1982 and my Ph.D. in Economics from the University of California,

15 Berkeley, in 1990.

16

3. The primary focus of my research and teaching is in the fields of Economics,

17 including Microeconomics, Labor Economics, and Sexual Orientation and Economics; and

18 Sexual Orientation and Public Policy, including sexual orientation discrimination, family

19 structures and family policy, same-sex partner recognition in the US and Europe, domestic

20 partner health care and pension benefits, and the health insurance status of lesbians and gay men.

21

4. I am the author of two books and the co-editor of a third on sexual orientation

22 economics and public policy: Money, Myths and Change: The Economic Lives of Lesbians and

23 Gay Men (2001); Sexual Orientation Discrimination: An International Perspective (2007); and

24 When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage

25 (2009). I have also authored numerous published articles and book chapters, as set forth in my

26 curriculum vitae.

27

5. My background, experience, and list of publications from the last 10 years are

28 summarized in my curriculum vitae, which is attached as Exhibit A to this Declaration.

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1

6. In the past four years, I have testified as an expert through declaration, trial, or

2 deposition in Bassett v. Snyder, Case No. 2:12-cv-10038 (E.D. Mich.); Perry v. Schwarzenegger,

3 Case No. 09-CV-2292 VRW (N.D. Cal.); Glossip v. Missouri Dep’t of Transp. and Highway

4 Patrol Employees’ Ret. Sys., No. 10-CC00434 (Mo. Cir. Ct., Cole County) and Diaz v. Brewer,

5 Case No. CV-09-2402-PHX-JWS (previously captioned Collins v. Brewer) (D. Ariz.).

6

7. In preparing this Declaration, I reviewed the Complaint in this case and the

7 materials listed in the attached Bibliography (Exhibit B). I have also relied on my years of

8 experience in this field, as set out in my curriculum vitae, and on the materials listed therein.

9

8. For my work in this matter, I am being compensated at the rate of $150.00 per

10 hour for testimony, plus reimbursement of expenses. My compensation does not depend on the

11 outcome of this litigation, the opinions I express, or the testimony I provide.

12 II. SUMMARY OF EXPERT OPINIONS

13

9. I have been asked for my expert opinion concerning the economic impact of

14 Nevada’s marriage equality prohibition (which includes the amendment codified in article 1,

15 section 21 of the Nevada Constitution and its statutory precursor codified in section 122.020 of

16 the Nevada Revised Statutes, or collectively the “Amendment”) on Nevada and its cities and

17 counties and the economic impact of the Amendment on same-sex couples and their children.

18 This Declaration also includes certain demographic information about same-sex couples and their

19 children, which is based on my prior research and other scholarly research.

20

10. The Amendment imposes substantial costs on Nevada and its counties and cities.

21 First, the state and local subdivisions lose significant tax and fee revenue that, but for the

22 Amendment, would have accrued as a result of weddings of same-sex couples. Second, denial of

23 marriage and a resulting decrease in the number of couples entering legally-recognized

24 relationships imposes state costs for (1) additional spending on uncompensated care for uninsured

25 people and (2) the loss of productivity generated by unequal treatment of same-sex couples in the

26 workplace.

27

11. The Amendment imposes substantial economic harms on same-sex couples

28 residing in Nevada and their children in at least two ways. First, there are many same-sex couples

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1 who, due to its lesser status, have not and will not enter a registered domestic partnership in the

2 absence of the right to marry; for these couples the Amendment eliminates the economic

3 efficiencies and cost savings associated with entering a legally recognized relationship, as

4 compared to remaining single. Second, the inability to marry deprives same-sex couples and their

5 families of significant direct and indirect economic benefits that available alternatives such as

6 domestic partnership do not provide or incompletely provide, making such alternatives

7 economically inadequate or imperfect substitutes for marriage even for those same-sex couples

8 who decide to become domestic partners in the absence of the right to marry.

9 III. BASIS AND REASONS FOR OPINIONS

10

A. Demographics of Same-Sex Couples and Their Families

11

12. For purposes of the demographic information in this Declaration, I use the term

12 “same-sex couple” to mean two people of the same sex who live together and indicated on a

13 Census form or similarly reliable survey that they are either “unmarried partners” or spouses.

14 Because the U.S. Census Bureau has changed some of its data collection practices, there are three

15 different sources of information about same-sex couples used in this Declaration. The first source

16 is Census 2000. Although the Census is designed to count each person in the United States, in

17 2000 the bureau also administered a long-form survey to a sample of households. The data used

18 in this Declaration from Census 2000 is from the 5% Public Use Micro Sample that the Census 19 Bureau drew from the long-form census data (Romero, Rosky, Badgett, and Gates, 2007).1 The

20 second source is the American Community Survey, which is a survey of about 2 million U.S.

21 households per year. The third source is the 2010 Census, which consisted of a short

22 questionnaire with minimal demographic data and no long form for any households. In its

23 analysis of the 2010 Census data, the Census Bureau made corrections to some of the questions

24 1 See Adam P. Romero, Clifford J. Rosky, M. V. Lee Badgett, and Gary J. Gates, “Census

25

Snapshot: Nevada,” Williams Institute, December 2007. That study is the source of findings from Census 2000 reported in this section, and it adjusted the Census 2000 data by removing any

26

same-sex unmarried partner couples in which one or both partners had their marital status allocated (i.e. reassigned by the Census Bureau from the original answer provided by the

27

respondent). That procedure was designed to remove couples that might have actually been different-sex couples who were inadvertently counted as same-sex couples because one of the

28

individuals answered the sex question incorrectly. See MacCartney, Badgett, and Gates (2007) for further details.

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1 used to generate the count of same-sex unmarried partner couples, and in this Declaration I use

2 the counts that are labeled by the Census Bureau as their “preferred estimates” of same-sex

3 couples for the most up-to-date count of same-sex couples in Nevada (Lofquist et al., 2012).

4

13. The Census Bureau counted 7,140 same-sex couples living together in Nevada in

5 2010 (U.S. Census Bureau, “Detailed Tables,” 2011, App Tab 6b). Same-sex couples comprised

6 at least 0.7% of all couples living in Nevada (Lofquist, et al., 2012). Approximately 17% of these

7 same-sex couples in Nevada are raising children under the age of 18 (U.S. Census Bureau,

8 “Detailed Tables”).

9

14. Additional findings about same-sex couples are available from earlier research

10 using Census 2000. According to calculations from Census 2000, people in same-sex couples are

11 active contributors to Nevada’s economy, culture, and future: 77% are employed and 15% are

12 veterans, compared with 62% of people in married different-sex couples who are employed and

13 19% of whom are veterans. Just over 2.5% of adopted children in Nevada live with a lesbian or

14 gay parent (Gates, Badgett, Chambers, and Macomber, 2007).

15

B. The Amendment Imposes Costs on State and Local Governments

16

15. The State of Nevada and various local counties and cities have been suffering and

17 will continue to suffer increased costs as a direct result of the Amendment. Over the next three

18 years, the State’s economy will lose $23 to $52 million in business revenue and $1.8 to $4.2

19 million in tax revenue that would have accrued as a result of weddings by same-sex couples. The

20 State’s economy will also suffer as Nevada remains a comparatively less attractive location for

21 highly qualified workers and businesses.

22

(i) Lost wedding-related business and tax revenue for resident couple

23

marriages

24

16. To assess the amount of wedding-related business and tax revenue lost by the State

25 of Nevada, I first estimated the number of Nevada resident same-sex couples who would marry in

26 Nevada but cannot as a result of the Amendment. I used two different calculations to arrive at the

27 number of couples, in order to provide both an upper-bound and a lower-bound estimate. I then

28 multiplied the number of couples by an estimate of average spending per wedding.

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1

17. First, for an upper-bound estimate, I use figures from Massachusetts, in which

2 51% of in-state same-sex couples married from 2004 to 2007.2 Based on those figures, I predict

3 that approximately half of Nevada’s same-sex couples would marry in the first three years of

4 having the option to do so. Half of the 7,140 same-sex couples in Nevada in the 2010 Census

5 would be 3,570 couples. The upper-bound estimate assumes that all of the 3,570 couples will 6 marry, even if they have already registered as domestic partners.3

7

18. Second, to arrive at a lower-bound estimate of the number of same-sex couples

8 who would marry in the first three years of having the option to do so, I assume that none of

9 Nevada’s same-sex couples in domestic partnerships will opt to marry. I estimate that there are a 10 total of 2,038 same-sex couples in domestic partnerships living in Nevada.4 I subtract 2,038 from

11 3,570 to get 1,532 as the lower-bound estimate.

12

19. It is likely that some of the same-sex couples in Nevada have married in one of the

13 6 states where they may currently do so (Connecticut, Iowa, Massachusetts, New Hampshire,

14 New York, and Vermont) or in the District of Columbia, or in California in 2008, when it briefly

15 allowed same-sex couples to marry. In the data collected for Badgett & Herman (2011), 24 same-

16 sex couples from Nevada had married in Massachusetts, Iowa, or Connecticut. There is no

17 2 Numerator from Gary J. Gates, M. V. Lee Badgett, and Deborah Ho, “Marriage, Registration,

and Dissolution by Same-sex Couples in the United States,” Williams Institute, 2008, p. 5; 18 denominator from U.S. Census Bureau, “Detailed Tables,” 2011. Retrieved from

http://www.census.gov/hhes/samesex/files/ss-report-tables.xls (last accessed Sept. 4, 2012). 19 3 As of October 1, 2009, Nevada allows both different-sex couples and same-sex couples to enter

20

into domestic partnerships that have a package of state legal rights and obligations similar to marriage.

21

4 To calculate the number of Nevada’s same-sex couples currently in domestic partnerships, in May 2012 I obtained from the Nevada Office of the Secretary of State a list of names and

22

addresses of couples who have registered a domestic partnership in Nevada. There were 3,558 couples in domestic partnerships. Of those couples, 94%, or 3,354 couples, list addresses in

23

Nevada (“resident partners” or “resident couples”). The state’s listing did not include information on whether the couples were different-sex or same-sex couples, so we matched the first and

24

middle names of each resident partner to data from the U.S. Census Bureau giving the probability that a name belonged to a man or to a woman. When the Census data did not predict the sex of

25

the partner with a sufficient degree of likelihood, we used other sources to match the sex, including internet sources and other databases of names. In the end, we matched the sex of the

26

partners for 3,273 resident couples, constituting 98% of the resident couples, and we could not identify the sex of 81 couples, constituting 2% of the resident couples. According to our sex

27

identification, 1,989 of the resident couples (or 60.8%) were same-sex couples. If we apply the same 60.8% proportion of same-sex couples in the sex-identified couples to the 81 couples whose

28

sex we could not identify, that would add 49 couples, for a total estimate of 2,038 same-sex couples in domestic partnerships living in Nevada.

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1 current data regarding the number of same-sex couples in Nevada who traveled to California to

2 marry in 2008, when it was permissible to do so. However, because the range generated by

3 accounting for the domestic partnerships is large enough to take into account that smaller source

4 of uncertainty, I make no other adjustments to the estimates of new weddings for already-married

5 same-sex couples.

6

20. Based on wedding industry statistics, we conservatively predict that in-state

7 couples would spend 25% of the $25,054 reportedly spent on the average wedding in Nevada,5 or

8 $6,263 per wedding. This assumption is consistent with the experience in Massachusetts, in

9 which the average wedding spending by same-sex couples was approximately $7,400 per

10 wedding (Goldberg, Steinberger, and Badgett, 2009). The range of new wedding spending, then,

11 would be $9.6 million (for 1,532 weddings) to $22.4 million (for 3,570 weddings).

12

21. In addition to spending by the couples who marry, those couples are likely to

13 invite guests who live in other states and would therefore be injecting new spending into the

14 state’s economy. In Massachusetts, same-sex couples reported 16 out-of-state guests per

15 wedding. If same-sex couples in Nevada were to do the same and their guests spent only two

16 days in Nevada for the wedding, state tourism research suggest that those guests would spend

17 $304 on food, lodging, and other expenses; including spending on gaming would increase total 18 spending per guest to $750.6 Assuming that even half of the out-of-state guests participate in

19 gaming activities, and using the range for the number of weddings, suggests that spending by out-

20 of-state guests would generate $12.9 to $30.1 million.

21

22. The total lost spending by the Nevada couples and out-of-state guests would thus

22 be $23 to $52 million over three years. That lost spending would generate $1.8 to $4.2 million in

23 state and local sales tax revenue, given the Tax Foundation’s calculation of an average sales tax

24

5 The Wedding Report. (2012). Wedding Industry Report: Nevada (State). Retrieved from http://www.theweddingreport.com/wmdb/index.cfm?action=db.viewdetail&step=1.

25

6 InfoSearch International. (2008). 2007 Reno-Tahoe Visitor Profile Study. Retrieved from http://www.visitrenotahoe.com/docs/aboutus/2007RenoTahoeVisitorProfileStudy.pdf;

26

HOTELS.COM. (2010). The Hotel Price Index: Overview of Hotel Prices 2009. Retrieved from http://www.hotel-price-index.com/pdf/2010-March-HPI-USA.pdf; Nevada Commission on

27

Tourism, Research Department. (2011). Nevada Travel Impacts: Calendar Year 2010, 2009, 2008, 2007 & 2006. Source: Dean Runyan Associates & Bureau of Economic Analysis. Retrieved

28

from http://travelnevada.com/uploads/nevada-commission-on-tourism/visitorsstatistics/CY10,09,08,07,06%20NV%20Travel%20Impacts%20FAQ.pdf.

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1 rate in Nevada of 7.93% (Tax Foundation, 2011).7

2

23. After the pent-up demand for marriage is satisfied over the first few years, same-

3 sex couples in Nevada and elsewhere would continue to generate wedding-related spending, tax,

4 and fee revenues for businesses and state and local governments, although at a smaller level.

5

24. It is reasonable to expect an added boost to Nevada’s economy from out-of-state

6 couples who travel from other states to marry in Nevada. For purposes of making a conservative

7 estimate, however, I leave out that amount. It has become increasingly difficult to predict the

8 number of same-sex couples likely to travel to Nevada to marry, because (1) the states already

9 allowing same-sex couples to marry will continue to absorb the pent-up demand for marriage

10 until Nevada allows same-sex couples to marry and (2) even when Nevada allows same-sex

11 couples to marry, the state would be competing with other states for the remaining unmarried

12 same-sex couples.

13

25. Yet the economic boost due to out-of-state couples marrying in Nevada could be

14 substantial. Since only six states and the District of Columbia allow same-sex couples to marry

15 as of the date of this Declaration, same-sex couples who wish to marry in the other states must

16 travel to do so. State marriage license statistics in Iowa and Connecticut show that about 60% of

17 licenses issued to same-sex couples have been to out-of-state same-sex couples (Badgett and

18 Herman, 2011, p. 10). Same-sex couples from nearby states form the largest groups of out-of-

19 state marriage licenses issued in those states, and none of the states contiguous to Nevada allow

20 same-sex couples to marry. Also, Nevada has a longstanding wedding tourism sector. The fact

21 that Nevada’s marriage rates (dividing the number of marriages in Nevada by the state’s

22 population) are many times higher than the national average (Centers for Disease Control,

23 Marriage rates by State: 1990, 1995, and 1999-2010; CDC, National Marriage and Divorce

24 Trends) suggests that many out-of-state couples come to Nevada to marry.

25

(ii) General productivity loss

26

26. As discussed further below, the Amendment is likely to result in additional

27 workplace costs to individual productivity as a result of being denied the same rights as other

28

7 Tax Foundation. (2011). State and Local General Sales Tax Rates. Retrieved from http://www.taxfoundation.org/taxdata/show/26269.html.

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1 employees who are married or could marry (see paragraphs 61-63 infra, describing costs of

2 workplace discrimination for same-sex couples). These individual productivity losses also inflict

3 harms upon the State. Institutionalized conditions of inequality, such as state denial of the right

4 to marry and private denial of employment benefits associated with marriage, will likely reduce

5 commitment to working in Nevada or to working for companies that have differential treatment

6 of married and unmarried couples. These productivity losses will reduce business profits and

7 individual incomes, leading to lower income and business tax revenue.

8

(iii) Higher costs for health care of uninsured same-sex partners

9

27. Because many employers do not offer health care benefits to non-registered

10 domestic partners, and because some employers likely do not offer health care benefits even to

11 registered domestic partners, the number of uninsured Nevadans is higher than it would be if

12 same-sex couples could marry. This situation results in increased state expenditures on

13 uncompensated care (Hadley, et al., 2008). Uninsured workers increase the financial burden on

14 State and local government by requiring increased expenditures on various programs, including

15 Nevada’s Medicaid program and other state- and locally-funded programs to reimburse providers

16 for uncompensated care. They also increase the financial burden on local governments that

17 provide health care through county hospitals that are not fully reimbursed for the services they

18 provide to some uninsured patients.

19

(iv) Creative class loss

20

28. As a result of the Amendment, Nevada is likely to find it more difficult to attract

21 and retain some highly qualified members of the labor force, particularly those in the “creative

22 class” occupations that may be central to further economic growth in high technology industries

23 (Florida and Gates, 2001). By refusing to marry same-sex couples, Nevada is at a disadvantage in

24 attracting highly skilled workers. In particular, heterosexual and non-heterosexual members of

25 the “creative class,” or the highly-educated, relatively young workers in creative occupations such

26 as IT workers, engineers, scientists, teachers, artists/entertainers, banking/finance workers,

27 managers, and medical professionals, might be deterred from moving to Nevada.

28

29. Two sources of data suggest that marriage equality enhanced Massachusetts’

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1 ability to attract and retain workers in the creative class. First, a study of Census data found that

2 migration patterns shifted in Massachusetts before and after same-sex couples could marry

3 (Gates, 2009). In the three years before same-sex couples could marry, Massachusetts lost 603

4 people in same-sex couples. In the three years after same-sex couples could marry, the state saw

5 a net gain of 119 people in same-sex couples. Net migration to Massachusetts by people in same-

6 sex couples who are in creative-class occupations accounted for the migration shift between the

7 two periods. The timing suggests that the right to marry attracted same-sex couples among the

8 creative class.

9

30. Second, a 2009 survey of 559 individual members of same-sex married couples

10 living in Massachusetts in May 2009 found that 8% of those couples had moved to the state since

11 the right to marriage equality was affirmed there (Gates, 2009). More than half (51%) of those

12 couples who had recently moved to Massachusetts reported that their decision to move to

13 Massachusetts was influenced by marriage equality or the state’s lesbian, gay, bisexual, and

14 transgender (LGBT) rights climate.

15

31. These findings suggest that, as other states allow same-sex couples to marry,

16 Nevada will find itself in an increasingly disadvantaged situation in competing for the creative-

17 class and other highly skilled members of the nation’s workforce.

18

(v) Net magnitude of cost

19

32. The economic harm to the State and its economy discussed above are substantial.

20 First, the State will lose approximately $23 to $52 million in wedding-related business spending

21 over three years, due to the inability of same-sex couples to marry. Second, the State and its

22 subdivisions will lose approximately $1.8 to $4.2 million in lost tax revenue over three years.

23 Third, the State may suffer further significant losses due to general productivity loss, higher costs

24 for health care of uninsured partners, and creative class loss.

C. Nevada’s Limits on the Right To Marry Impose Substantial Costs on a

25

Significant Number of Same-Sex Couples and Their Families

26 33. The Amendment deprives same-sex couples and their children of significant
27 economic benefits associated with marriage. Some of these benefits, including access to some
28

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1 employer-provided health insurance coverage and avoidance of transaction costs associated with

2 domestic partnerships, are unique to marriage, so that entering into domestic partnerships does

3 not provide an equal economic substitute. Other benefits are technically available through

4 domestic partnership, but other considerations deter same-sex couples from becoming domestic

5 partners; therefore, those benefits are not realized by many same-sex couples who would avail

6 themselves of marriage.

7

34. In this section C, I address the costs imposed on two groups of same-sex couples:

8 (1) same-sex couples who wish to marry or have their valid marriage from another jurisdiction

9 recognized as a marriage but cannot, and who do not register as domestic partners with the State

10 of Nevada (“non-registered domestic partners”) and (2) same-sex couples who have legally

11 registered as domestic partners with the State of Nevada (“registered domestic partners”).

12

35. In subsection (i) below, I show that many same-sex couples strongly prefer

13 marriage to an alternative legal status because they view marriage as a superior status.

14

36. Subsection (ii) outlines the costs imposed on non-registered domestic partners in

15 Nevada when they are not allowed to marry: (a) the loss of valuable employment-related

16 benefits, such as health insurance coverage; (b) increased transaction costs; (c) costs of economic

17 inefficiency; and (d) costs of workplace discrimination.

18

37. Subsection (iii) outlines the costs imposed on registered domestic partners in

19 Nevada when they are not allowed to marry: (a) reduced access to employment-related benefits;

20 and (b) increased transaction costs.

21

(i) Domestic partnership provides only an incomplete and imperfect set of

economic benefits compared to marriage 22

23

38. Domestic partnership provides only an incomplete and imperfect set of economic

24 benefits compared to marriage. Although same-sex couples in Nevada currently have the ability

25 to register as domestic partners and gain many state-provided legal rights and benefits that are

26 also given to legally married couples, empirical research demonstrates that because same-sex

27 couples do not perceive alternative legal statuses as an adequate substitute for the right to marry

28 in a variety of respects (non-economic as well as economic), many same-sex couples in Nevada

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1 would likely marry but are unlikely to register for a domestic partnership when marriage is

2 unavailable. Those non-registered domestic partners remain vulnerable to the economic harms of

3 being denied the right to marry. As a result, the economic costs of being denied the right to marry

4 are not fully mitigated by the existence of domestic partnerships.

5

39. Marriage and domestic partnership are not equivalent, either in terms of

6 substantive rights or how they are viewed and understood. As a result, many same-sex couples

7 residing in Nevada who would marry, if permitted, will not register as domestic partners. The

8 distinction between marriage and domestic partnership means that, as a practical matter, the

9 Amendment will increase the economic harm to non-registered domestic partners and the public

10 costs to the State and local counties and cities. It is my opinion that these added costs could

11 amount to millions of dollars each year in private and public costs.

12

40. Evidence demonstrates that couples view alternative statuses, such as domestic

13 partnership, civil unions, or registered partnerships, as less desirable than marriage. Demographic

14 and qualitative data indicate two findings that support this point. First, when same-sex couples do

15 not have the option of marriage, some will opt for domestic partnership, but many others will

16 remain legally single instead. Second, when same-sex couples have a choice between marriage

17 and domestic partnership, more couples will choose to marry than to register as domestic

18 partners.

19

41. Many same-sex couples remain legally single when denied the right to marry but

20 offered an alternative status. Demographic data show that same-sex couples are much less likely

21 to enter an alternative status than to enter marriage in the first year that the status is offered

22 (Badgett and Herman, 2011). In states that allowed same-sex couples to marry (Iowa,

23 Massachusetts, and Vermont), 30% of same-sex couples did so in the first year. In states that

24 allowed couples to enter civil unions or broad domestic partnerships with rights and

25 responsibilities comparable to marriage (Connecticut, New Hampshire, New Jersey, Nevada,

26 Oregon, and Vermont), only 18% of same-sex couples entered these legal statuses in the first

27 year.

28

42. This large gap in the take-up of alternative statuses and the marriage rate suggests

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1 that in the absence of the right to marry, a significant number of same-sex couples remain single,

2 even though entering into domestic partnerships or civil unions might provide some economic

3 benefits. In other words, statutory efforts to have alternative statuses mirror or match some of the

4 benefits of marriage have not resulted in alternative statuses that same-sex couples view as

5 comparable to marriage.

6

43. The lesser value of domestic partnerships is corroborated by the fact that different-

7 sex couples mostly reject alternative statuses. In California and New Jersey, older different-sex

8 couples are permitted to register as domestic partners as well as to marry. At least one partner

9 must be 62 or older for a different-sex couple to register in California. Only 5 to 6% of registered

10 domestic partners in California are different-sex partners (Cochran, 2005). Census 2000 data for

11 California suggests that this figure accounts for only about 6% of unmarried, eligible different-

12 sex couples in that age group. In sharp contrast, 98% of different-sex couples eligible for

13 domestic partnership registration are legally married. In New Jersey, both members of the

14 different-sex couple must be over 62 to be eligible for domestic partnership. Only 90 different-

15 sex couples registered as domestic partners from July 2004 to May 2006 (Badgett, Sears, and Ho,

16 2006). Comparing that figure to the estimated 3,400 age-eligible different-sex unmarried couples

17 in New Jersey gives a very low take-up rate of 2.7%. Elsewhere in the United States, another

18 study found that only about 10% of partners registering in domestic partner registries in college

19 towns were different-sex couples, which also implies that different-sex couples have a low level

20 of interest in domestic partnerships (Willetts, 2003).

21

44. In Nevada, unmarried different-sex couples, regardless of age, are also allowed to

22 enter domestic partnerships, but relatively few choose to do so. Using calculations discussed in

23 Footnote 4, in the first three years of domestic partnership availability, approximately 1,284

24 domestic partnerships registered in Nevada were for different-sex couples who lived in the state,

25 along with approximately 85 other different-sex couples from other states. In sharp contrast,

26 108,150 different-sex couples married in Nevada in 2009 alone, the most recent year with

27 available data (National Vital Statistics System, 2010). In other words, although different-sex

28 couples had both options for legal recognition of their relationship since 2009, a tiny fraction

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1 chose domestic partnership.

2

45. This evidence demonstrates that one outcome of same-sex couples’ exclusion from

3 marriage is that many couples who would otherwise marry will not seek to register as domestic

4 partners. Allowing these non-registered domestic partners to marry would, therefore, increase the

5 number of couples that are legally recognized by the State, which in turn leads to an improvement

6 in the economic situation of those couples, the State, and the larger economy, as developed in

7 subsequent sections of this Declaration.

8 (ii) Nevada’s marriage restrictions impose substantial costs on same-sex

9

couples

10

46. The total cost to the significant number of non-registered domestic partners is

11 substantial and takes a variety of forms, including:

12

(a) Loss of employer-provided benefits

13

47. Many non-registered domestic partners lack health insurance as a result of the

14 Amendment. Recent studies show that people with same-sex unmarried partners are much more

15 likely to be uninsured than are married people (Ash & Badgett, 2006; Heck et al; Ponce et al). In

16 the United States, the most common source of insurance is through employment (DeNavas-Walt,

17 et al., 2009, Fig 7). Because the price of insurance on the open market for individual coverage is

18 so high, many persons without employment-based insurance are unable to purchase it (see

19 Badgett, 2010). Moreover, on the individual market, insurance that is provided often excludes

20 pre-existing conditions. One common method of obtaining insurance at group rates is as a spouse

21 or domestic partner of an employee who has insurance coverage through employment. However,

22 the Amendment makes it less likely that same-sex couples can obtain insurance coverage since

23 some employers might condition receipt of coverage on entering the lesser status of domestic

24 partnership, and other employers might only offer health care coverage to spouses of employees.

25

(b) Increased transaction costs

26

48. Because of the Amendment, non-registered domestic partners may face large

27 transaction costs to create legal protections through wills, durable powers of attorney, health care

28 proxies, second parent adoptions, cohabitation agreements, and other legal documents. Same-sex

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1 couples must sometimes spend thousands of dollars in legal fees to create such documents

2 (Bernard and Lieber, 2009). If couples were allowed to marry, many of these protections would

3 be automatically conferred with marriage.

4

(c) Reduced economic efficiency of the family

5

49. Economists and other scholars have suggested several ways that marriage

6 promotes interdependence and enhances economic efficiency for couples and, therefore, for

7 society as a whole. Because they are not allowed to marry under Nevada law, same-sex couples,

8 particularly non-registered domestic partners, are deprived of this enhanced economic efficiency

9 and security.

10

50. In general, marriage provides a legal framework for living an interdependent

11 economic life. Through marriage, couples can buy property together and other household goods

12 knowing that each member of the couple has ownership rights. And if the worst should happen,

13 that is, if one spouse dies or the relationship dissolves, then the ownership rights would be clear.

14 Thus the contractual nature of marriage facilitates a more efficient use of time and money

15 resources for families than is available to unmarried couples. More specifically, marriage can

16 enhance a couple’s economic efficiencies in the following ways:

17

51. Promoting Specialization Of Labor: Nobel Prize-winning economist Gary Becker

18 has argued that the marriage contract allows for increasing household efficiency (Becker, 1991).

19 Partners pool time and money, and then divide up their labor in ways that increase the family’s

20 productivity in producing goods and services for family members. Without the presumed long-

21 term nature of the relationship that marriage implies, as well as the division of marital property

22 and the possibility of alimony if a marriage ends, specialization by either party would not

23 necessarily be efficient for individuals in the long-term. For instance, marriage gives couples the

24 economic security to make decisions about education and labor force participation knowing that

25 one spouse can provide the primary economic support if the other can contribute less cash income

26 to the family. If the relationship ends, a spouse who has sacrificed some earning potential will be

27 eligible for alimony and a share of community property to compensate him or her for those

28 financial losses.

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1

52. Reducing Transaction Costs: Marriage also promotes economic efficiency

2 through reducing transaction costs for couples, removing the need to renegotiate the terms of the

3 legal relationship as couples experience changed circumstances (Pollak, 1985).

4

53. Providing Social Insurance: Marriage also facilitates wealth and income pooling

5 across individuals and within families, which provides insurance against bad times, such as a

6 disability or death or the loss of a job (Pollak, 1985).

7

54. Taking Advantage of Economies of Scale: By encouraging larger household sizes,

8 marriage helps families take advantage of economies of scale. In other words, doubling the

9 inputs of time and other resources in some tasks results in more than double the output of family-

10 related goods and services (Nelson, 1988).

11

55. Signaling Commitment: In addition, the willingness to marry is an important

12 signal of commitment to a relationship (Eskridge, 1996). Through the decision to marry, each

13 partner signals greater effort to maintain the relationship, a greater likelihood that the relationship

14 will endure, and an agreement to make a fair settlement if, despite the good intentions of the

15 parties, the relationship should end. The commitment to a long-term relationship and the rules for

16 distribution of assets and income should the relationship end underlie the specialization,

17 transaction costs, and social insurance functions of marriage.

18

56. Promoting The Provision Of Caring Labor: The long-term nature of the marital

19 commitment promotes reciprocity and altruism, as partners take care of one another and any

20 children they might be raising together. The unpaid work done in families is essential for the

21 survival of healthy human beings (Folbre, 1995).

22

57. According to these theories, the legal institution of marriage promotes efficiency at

23 the family level and therefore at the social level. Both individual couples and societies have an

24 incentive to seek out and utilize this relatively efficient institution.

25

58. To the extent that non-registered domestic partners and registered domestic

26 partners in Nevada are in positions that suggest a high level of interdependence, those couples

27 remain insecure relative to married couples because they cannot receive the full extent of public

28 and private support that accompanies marriage.

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1

59. The interdependence of members of non-registered domestic partners in Nevada is

2 also shown by the disparities between members’ individual incomes. In the average same-sex

3 couple in Census 2000, the difference in total individual incomes between the two partners was

4 $24,249, which is not statistically significantly different from a difference of $27,873 for married

5 couples. Some of the factors that result in these disparities reflect decisions that couples are

6 likely to make together: hours worked, degree of labor force participation, time in child-rearing,

7 etc. However, same-sex couples are making these decisions without the protections, such as

8 community property, provided for by marriage.

9

60. Couples also care for each other when one partner is aging, sick or disabled. In

10 5.6% of same-sex couples, one or both partners are 65 or older. In 30.4% of same-sex couples

11 (and 32.6% of married couples), at least one member of the couple has a disability. In these

12 couples, members may be taking on responsibility to provide for or care for a senior or disabled

13 member. However, when they do so they are not afforded the support that marriage would

14 provide under Nevada law.

15

(d) Costs of perceived workplace discrimination

16

61. Furthermore, individuals in same-sex couples are likely to bear additional

17 workplace costs as a result of the Amendment, most notably from the potential loss of

18 productivity as a result of being denied the same rights as other employees who are or could

19 marry. The differential treatment of employees with unmarried same-sex partners when

20 compared with married heterosexual employees is likely to be viewed as workplace

21 discrimination by lesbian, gay, and bisexual (LGB) employees (Badgett, 2001; Raeburn, 2004).

22 That perception and reality of discrimination may have harmful effects on worker job satisfaction

23 and lead to absenteeism and health problems (Waldo, 1999).

24

62. Meanwhile, the equal treatment of LGB people in the workplace tends to increase

25 the disclosure of sexual orientation by people in same-sex couples and single LGB people

26 (Badgett, 2001; Badgett, 2009; Ramos, Goldberg, and Badgett, 2009; Driscoll, Kelley, and

27 Fassinger, 1996; Griffith & Hebl, 2002; Ragins & Cornwell, 2008; Rostosky & Riggle, 2002).

28 More openness of LGB employees leads to positive workplace outcomes for those individuals

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1 and their employers, such as greater job satisfaction, increased work commitment, and lower

2 turnover (Day & Schoenrade, 1997; Griffith & Hebl, 2002; Ellis & Riggle, 1995).

3

63. These studies suggest that the beneficial effects of laws and policies promoting

4 equality are likely to improve overall workplace productivity of individuals, which in turn would

5 likely have a positive effect on individual promotion opportunities and individual wage growth.

6 However, institutionalized conditions of inequality, such as state denial of the right to marry and

7 private denial of employment benefits associated with marriage, will likely have the opposite

8 effect by reducing commitment to working in Nevada or to working for companies that have

9 differential treatment of married and unmarried couples.

10

(iii) Domestic partnership is an imperfect economic substitute even for

those same-sex couples who are willing to utilize it 11

12

64. In addition to causing economic harm to same-sex couples who have not registered

13 and will not register for domestic partnership in the absence of the right to marry, the Amendment

14 causes economic harm even to couples who do register as domestic partners. These sources of

15 economic harm to couples include lost employer-provided health insurance coverage and

16 incurring private attorney costs.

17

(a) Employment benefits

18

65. In many cases, employer policies fail to provide health care benefits to the

19 domestic partners of employees. While providing domestic partner benefits is an increasing and

20 mainstream trend, recent national data show that most employees do not have access to coverage

21 for a domestic partner. The 2011 National Compensation Survey, conducted by the U.S. Bureau

22 of Labor Statistics, found that 33% of all employees of state and local governments have access to

23 health care benefits for a same-sex partner. In the private sector, only 29% of employees can

24 designate a same-sex partner.

25

66. As noted earlier, if same-sex couples cannot get health care coverage through an

26 employer, the employee’s partner may have to turn to the individual health insurance market for

27 insurance, in which insurance plans are generally more difficult to qualify for, more expensive

28 than employer coverage, and offer inferior coverage (Badgett, 2010).

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Exhibit A

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HOME ADDRESS: 67 Willow St. Florence, MA 01062 cell: (310) 904-9761

CAMPUS ADDRESS Center for Public Policy & Administration University of Massachusetts Amherst, MA 01003 Email: lbadgett@pubpol.umass.edu (v) 413-545-3162 (f) 413-545-1108

CURRENT POSITION: Director Professor Research Director

Center for Public Policy and Administration, Univ. of Massachusetts Amherst Dept. of Economics, Univ. of Massachusetts Amherst Williams Institute, UCLA School of Law

EDUCATION: Univ. of California, Berkeley University of Chicago

DEGREE Ph.D. A.B.

DATE 1990 1982

FIELD Economics Economics

Dissertation title: "Racial Differences in Unemployment Rates and Employment Opportunities"

PREVIOUS POSITIONS: Visiting Professor, UCLA School of Law (2005-2007; summer 2008) Visiting researcher, Amsterdam School for Social Science Research, Univ. of Amsterdam (2003-4) Co-founder & Research Director, Inst. for Gay and Lesbian Strategic Studies (1994-2006, merged with Williams Inst. 2006) Assistant & Associate Professor, Dept. of Economics, University of Massachusetts-Amherst (1997-2008) Assistant Professor, School of Public Affairs, University of Maryland, College Park (1990-97) Visiting Assistant Professor, Women’s Studies and Lesbian and Gay Studies, Yale University (1995-96) Research Analyst, National Commission for Employment Policy, U.S. Dept. of Labor (Summer, 1994)

COURSES TAUGHT:

Economics: Microeconomics (UMass)

Microeconomics and Public Policy (UMass)

Political Economy of Sexuality (UMass)

Labor Economics--undergraduate and Ph.D. level (UMass)

Feminist Economics (co-taught as visiting professor at University of Minnesota)

Policy: Capstone course (UMass), Second Year Policy Project Course (UMCP)

Sexuality and Public Policy (Yale, UMCP)

Affirmative Action and Civil Rights Policy (UMCP and Yale)

Redefining the Family: Challenges from Lesbians and Gay Men (Yale)

Public Policy Analysis (UMass, UMCP)

Labor Market Policies and Regional Economic Development (UMCP)

CURRENT RESEARCH TOPICS: Sexual orientation discrimination in labor markets Family structures and family policy, esp. same-sex partner recognition in US and Europe Domestic partner health care and pension benefits

BOOKS: When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage, New York University Press, 2009. Distinguished Book Award, American Psychological Association, Division 44, 2010
Sexual Orientation Discrimination: An International Perspective, co-edited by M. V. Lee Badgett and Jeff Frank, Routledge, 2007.
Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men, University of Chicago Press, 2001.

JOURNAL ARTICLES: “Separated and Not Equal: Binational Same-Sex Couples,” Signs, Vol. 36, No. 4, Summer 2011, 793-798.
“Social Inclusion and the Value of Marriage Equality in Massachusetts and the Netherlands,” Journal of Social Issues, Vol. 67, No. 2, 2011, pp. 316-334.

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“Are We All Decisionists Now? Response to Libby Adler,” online forum of Harvard Civil Rights and Civil Liberties Review, March 2011.
“The Economic Value of Marriage for Same-sex Couples,” Drake Law Review, Vol. 58, No. 4, 2010, pp 1081-1116.
“Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008,” M.V. Lee Badgett, Brad Sears, Holning Lau, and Deborah Ho. Chicago-Kent Law Review, Vol. 84, No. 2, 2009.
“The Double-Edged Sword in Gay Economic Life: Marriage and the Market.” Washington and Lee Journal of Civil Rights and Social Justice, Vol. 15, No. 1, Fall 2008, pp. 109-128.
“Registered Domestic Partnerships Among Gay Men and Lesbians: The Role of Economic Factors,” M. V. Lee Badgett, Gary J. Gates, and Natalya Maisel, Review of Economics of the Household, December 2008.
“The Impact on Maryland’s Budget of Allowing Same-Sex Couples to Marry,” M. V. Lee Badgett, Amanda K. Baumle, Shawn Kravich, Adam P. Romero, R. Bradley Sears, University of Maryland Law Journal of Race, Religion, Gender and Class, Vol 7, No. 2, 2007, pp. 295-339.
“Supporting Families, Saving Funds: An Economic Analysis of Equality for Same-sex Couples in New Jersey,” Rutgers Journal of Law & Public Policy, by M. V. Lee Badgett, R. Bradley Sears, and Deborah Ho, Vol. 4, No. 1, 2006.
“Separate and Unequal: The Effect of Unequal Access to Employment-Based Health Insurance on Same-sex and Unmarried Different-Sex Couples,” Michael Ash and M. V. Lee Badgett, Contemporary Economic Policy, October 2006, Vol. 24, no. 4, pp 582-599.
“Predicting Partnership Rights: Applying the European Experience to the United States,” Yale Journal of Law and Feminism, Vol. 17, No. 1, Spring 2005, 71-88.
“Putting a Price on Equality? The Impact of Allowing Same-Sex Couples to Marry on California’s Budget,” coauthored with R. Bradley Sears, Stanford Law & Policy Review, Vol. 16, No. 1, 2005, pp. 197-232. Winner of 2005 Dukeminier Award for Best Sexual Orientation Law Review Articles, reprinted in The Dukeminier Award Journal, Vol. 5, 2006.
“Now That We Do: Same-Sex couples and Marriage in Massachusetts,” with Randy Albelda and Michael Ash, Massachusetts Benchmarks, Vol. 7, Issue 2, 2005, 17-24.
“Asking the Right Questions: Making the Case for Sexual Orientation Data,” 2004 Proceedings of the American Statistical Association, Statistical Computing Section [CD-ROM], Alexandria, VA: American Statistical Association.
“Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage?” Sexuality Research and Social Policy: Journal of NSRC, Vol. 1, No. 3, Sept. 2004, pp. 1-10.
"Job Gendering: Occupational Choice and the Marriage Market," M. V. Lee Badgett and Nancy Folbre, Industrial Relations, April, 42(2), 2003, 270-298.
"Wedding Bell Blues: The Income Tax Consequences of Legalizing Same-Sex Marriage," James Alm, M. V. Lee Badgett, and Leslie A. Whittington, National Tax Journal, Vol. LIII, No. 2, June 2000, pp. 201-214.
"Assigning Care," co-authored with Nancy Folbre, International Labour Review, Vol. 138, No. 3, 1999, pp. 311-326.
"Introduction: Towards Lesbian, Gay, and Bisexual Perspectives in Economics: Why and How They May Make a Difference," Prue Hyman and M. V. Lee Badgett, introduction to special section of Feminist Economics, co-edited by Badgett and Hyman, Vol. 4, No. 2, Summer 1998, pp. 49-54.
"Readings Related to Lesbian and Gay Economics: An Annotated Bibliography," Feminist Economics, Vol. 4, No. 2, Summer 1998, pp. 111-116.

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“A Queer Marketplace: Books on Lesbian and Gay Consumers, Workers, and Investors,” (review essay) Feminist Studies, Vol. 23, No. 3, Fall 1997, pp. 607-632.
"Employment and Sexual Orientation: Disclosure and Discrimination in the Workplace," Journal of Gay and Lesbian Social Services, Vol. 4, No. 4, 1996, pp. 29-52. Simultaneously published as Sexual Identity on the Job: Issues and Services, Alan L. Ellis and Ellen D.B. Riggle, editors, Harrington Park Press, 1996. Also published in Psychological Perspectives on Lesbian, Gay, and Bisexual Experiences, 2nd edition, ed. Linda D. Garnets and Douglas C. Kimmel, Columbia University Press, 2003.
"The Wage Effects of Sexual Orientation Discrimination," Industrial and Labor Relations Review, Vol. 48, No. 4, July, 1995, pp. 726-739. Reprinted in Women Transforming Politics: An Alternative Reader, ed. by Cathy J. Cohen, Kathleen B. Jones, and Joan C. Tronto, New York University Press, 1997.
"Gender, Sexuality and Sexual Orientation: All in the Feminist Family?" Feminist Economics, Vol. 1, No. 1, 1995. Reprinted in Gender and Political Economy: Incorporating Diversity into Theory and Policy, ed. by Ellen Mutari, Heather Boushey, and William Fraher IV, M.E. Sharpe, Armonk, NY, 1997.
"Affirmative Action in a Changing Legal and Economic Environment," Industrial Relations, Vol. 34, No. 4, 1995.
"Rising Black Unemployment: Changes in Job Stability or Employability?" Review of Black Political Economy, Vol. 22, No. 3, Winter 1994, pp. 55-75.
"The Economics of Sexual Orientation: Establishing a Research Agenda," M. V. Lee Badgett and Rhonda M. Williams, Feminist Studies, Vol. 18, No.3, 1992.
BOOK CHAPTERS: “Marriage by the Numbers,” in Here Come the Brides: Reflections on Lesbian Love and Marriage, ed. by Audrey Bilger & Michele Kort, Seal Press, Berkeley, 2012, pp. 170-176.
“Bringing All Families to Work Today: Equality for Gay and Lesbian Workers and Their Families,” in The Changing Realities of Work and Family: A Multidisciplinary Approach, ed. By Amy Marcus-Newhall, Diane Halpern, and Sherylle Tan, WileyBlackwell, 2008.
“The Global Gay Gap: Institutions, Markets, and Social Change,” with Jefferson Frank, Sexual Orientation Discrimination: An International Perspective, edited by Badgett and Frank, Routledge, 2007.
“Discrimination Based on Sexual Orientation: A Review of the Economics Literature and Beyond,” in The Handbook of the Economics of Discrimination, ed. By William M. Rodgers III, Edward Elgar, 2006. Also appearing in Sexual Orientation Discrimination: An International Perspective, edited by Badgett and Frank.
"Is Affirmative Action Working for Women?" (co-authored with Jeannette Lim) in Mary C. King (ed.) Squaring Up: Policy Strategies to Raise Women's Incomes in the United States. Ann Arbor, MI: University of Michigan Press, 2001.
“Lesbian and Gay Think Tanks: Thinking for Success,” Identity/Space/Power: Lesbian, Gay, Bisexual, and Transgender Politics, edited by Mark Blasius, Princeton University Press, 2000.
“The Impact of Affirmative Action on Public-Sector Employment in California, 1970-1990,” in Paul Ong, editor, Impacts of Affirmative Action: Policies & Consequences in California, AltaMira Press, 1999; and in The Impact of Affirmative Action on Public-Sector Employment and Contracting in California, A Technical Assistance Program Report of the California Policy Seminar, University of California, 1997.
"Where the Jobs Went in the 1990-91 Downturn: Varying (Mis)Fortunes or Homogeneous Distress?" Civil Rights and Race Relations in the Post Reagan-Bush Era, ed. Samuel L. Myers, Praeger, Westport, CT, 1997, pp 99-147.
“The Economic Well-Being of Lesbian and Gay Adults’ Families,” in Lesbian, Gay and Bisexual Identities in the Families: Psychological Perspectives, ed. by Charlotte J. Patterson and Anthony R. D’Augelli, Oxford University Press, 1997.
"Choices and Chances: Is Coming Out at Work a Rational Choice?" in Queer Studies: A Multicultural Anthology, ed. by Mickey Eliason and Brett Beemyn, New York University Press, 1996.

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"Beyond Biased Samples: Challenging the Myths on the Economic Status of Lesbians and Gay Men," in Homo Economics: Capitalism, Community, and Lesbian and Gay Life, ed. by Amy Gluckman and Betsy Reed, Routledge Press, 1997.
"Occupational Strategies of Lesbians and Gay Men," M. V. Lee Badgett and Mary C. King, in Homo Economics: Capitalism, Community, and Lesbian and Gay Life, ed. by Amy Gluckman and Betsy Reed, Routledge Press, 1997.
"Thinking Homo/Economically," in Walter L. Williams and James Sears, eds., Combating Homophobia and Heterosexism, forthcoming, Columbia University Press. (Reprinted in A Queer World: The CLAGS Reader, ed. by Martin Duberman, New York University Press, 1997.)

"Evidence of the Effectiveness of Equal Employment Opportunity Policies: A Review," M. V. Lee Badgett and Heidi I. Hartmann, in Economic Perspectives on Affirmative Action, ed. by Margaret C. Simms, Joint Center for Political and Economic Studies, 1995.

"The Changing Contours of Discrimination: Race, Gender, and Structural Economic Change," M. V. Lee Badgett and Rhonda M. Williams, in Understanding American Economic Decline, David Adler and Michael Bernstein, eds., Cambridge University Press, Cambridge, 1994.

POLICY REPORTS: “The Economy Impact of Extending Marriage to Same-sex Couples in Australia,” M. V. Lee Badgett and Jennifer Smith, February 2012, Williams Institute.
“Impact of Extending Sexual Orientation and Gender Identity Nondiscrimination Requirements to Federal Contractors,” Williams Institute, February 2012.
“The Economic Impact of Extending Marriage to Same-Sex Couples in Washington,” Angeliki Kastanis, M. V. Lee Badgett, and Jody L. Herman, January 2012.
“Estimating the Economic Boost of Marriage Equality in Iowa: Sales Tax,” Angeliki Kastanis, M. V. Lee Badgett, and Jody L. Herman, December 2011.
“Patterns of Relationship Recognition by Same-Sex Couples in the United States,” M. V. Lee Badgett and Jody L. Herman, Williams Institute, November 2011.
"Spending on Weddings of Same-Sex Couples in the United States," By Craig J. Konnoth, M.V. Lee Badgett, Brad Sears July 2011, Williams Institute.
“The Impact of Creating Civil Unions for Same-Sex Couples on Delaware's Budget,” By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, March 2011 Williams Institute.
"The Fiscal Impact of Creating Civil Unions on Colorado’s Budget," By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, February 2011, Williams Institute.

"The Impact on Rhode Island’s Budget of Allowing Same-Sex Couples to Marry," By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, February 2011, Williams Institute.
"Employment Discrimination against Lesbian, Gay, Bisexual, and Transgender People in Oklahoma," By Christy Mallory, Jody L. Herman, M.V. Lee Badgett, January 2011, Williams Institute.
"Employment Discrimination against LGBT Utahns," By Clifford Rosky, Christy Mallory, Jenni Smith, M.V. Lee Badgett, January 2011, WIlliams Institute.
"Utah Census Snapshot: New Study on Same-Sex Couples in Utah," By Jody L. Herman, Christy Mallory, M.V. Lee Badgett, Gary J. Gates, November 2010, Williams Institute.
"The Potential Impact of HB444 on the State of Hawai'i," by Naomi Goldberg, R. Bradley Sears, and M.V. Lee Badgett, June 2010, Williams Institute.
"The Impact of Expanding FMLA Rights to Care for Children of Same-Sex Partners," M. V. Lee Badgett, June 2010, Williams

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Institute.
"The Impact of Employment Nondiscrimination Legislation in South Dakota," Naomi Goldberg, M. V. Lee Badgett, and Chris Ramos, January 2010, Williams Institute.
"The Impact of Extending Marriage to Same-Sex Couples on the New Jersey Budget," by Brad Sears, Christopher Ramos, and M.V. Lee Badgett, December 2009, Williams Institute.
“Best Practices for Asking Questions about Sexual Orientation on Surveys,” editor and co-author, November 2009, Williams Institute.
“The Business Boost from Marriage Equality: Evidence from the Health and Marriage Equality in Massachusetts Survey,” by Naomi Goldberg, Michael Steinberger, and M.V. Lee Badgett, May 2009, Williams Institute.
“The Effects of Marriage Equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex couples,”by Christopher Ramos, Naomi G. Goldberg, and M.V. Lee Badgett, May 2009, Williams Institute.
“The Impact on Maine’s Budget of Allowing Same-Sex Couples to Marry,” by Christopher Ramos, M. V. Lee Badgett, Michael D. Steinberger, and Brad Sears, April 2009, Williams Institute.
“The Economic Impact of Extending Marriage to Same-Sex Couples in the District of Columbia,” By Christopher Ramos, M. V. Lee Badgett, and Brad Sears, April 2009, Williams Institute.
“Fact Sheet: Tax Implications for Same-Sex Couples,” by Naomi Goldberg and M. V. Lee Badgett, April 2009, Williams Institute.
“The Economic Impact of Extending Marriage to Same-sex Couples in Vermont,” By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, March 2009, Williams Institute.
“Poverty in the Lesbian, Gay, and Bisexual Community,” by Randy Albelda, M.V. Lee Badgett, Gary Gates, and Alyssa Schneebaum, March 2009, Williams Institute.
“Florida Adoption Ban/ Cost Estimate,” by Naomi Goldberg and M. V. Lee Badgett,February 2009, Williams Institute.
“Kentucky Foster Care/Adoption Ban Cost Estimate,” By Naomi Goldberg and M. V. Lee Badgett, February 2009, Williams Institute.
“The Economic Impact of Extending Marriage to Same-sex Couples in Maine,” By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, February 2009, Williams Institute.
“Evidence of Employment Discrimination on the Basis of Sexual Orientation and Gender Identity: Complaints Filed with State Enforcement Agencies 1999-2007,” By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, November 2008, Williams Institute.
“The Fiscal Impact of Extending Federal Benefits to Same-Sex Domestic Partners,” Naomi G. Goldberg, Christopher Ramos, and M.V. Lee Badgett, September 2008.
“Marriage, Registration and Dissolution by Same-sex Couples in the U.S.,” Gary J. Gates, M.V. Lee Badgett, and Deborah Ho, Williams Institute, July 2008.
“The Impact of Extending Marriage to Non-Resident Same-Sex Couples on the Massachusetts Budget,” By M. V. Lee Badgett and R. Bradley Sears, Williams Institute memo to Massachusetts Secretary of Housing and Economic Development, June 2008.
“The Impact of Extending Marriage to Same-Sex Couples on the California Budget,” Brad Sears and M.V. Lee Badgett, Williams Institute, June 2008.
“The Impact on Iowa's Budget of Allowing Same-Sex Couples to Marry,” M.V. Lee Badgett, Amanda K. Baumle, Adam P.

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Romero and Brad Sears, Williams Institute, April 2008.

“The Impact on Oregon's Budget of Introducing Same-Sex Domestic Partnerships,” By M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, and Holning Lau, Williams Institute, February 2008.

“Implications of HB 9 for Businesses in New Mexico,” M.V. Lee Badgett, Williams Institute, January 2008.

“Unequal Taxes on Equal Benefits: The Taxation of Domestic Partner Benefits,” M.V. Lee Badgett, Center for American Progress and Williams Institute, December 2007.

“The Impact on Maryland's Budget of Allowing Same-Sex Couples to Marry,” M.V. Lee Badgett, Amanda Baumle, Shawn Kravich, Adam P. Romero, and R. Bradley Sears, Williams Institute, November 2007.

Amici curiae brief, in re Marriage Cases, Supreme Court of California, September 2007, M. V. Lee Badgett and Gary J. Gates.

“Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination,” by Lee Badgett, Holning Lau, Brad Sears, and Deborah Ho, Williams Institute, UCLA, June 2007.

Census Snapshot series: 50 state reports; Williams Institute, UCLA, with various co-authors, 2007. “Methodological Details for Census Snapshot,” August 2007, Danielle MacCartney, M. V. Lee Badgett, and Gary Gates.

“Adoption and Foster Care by Gay and Lesbian Parents in the United States,” Williams Institute and Urban Institute, March 2007, Gary Gates, Lee Badgett, Jennifer Macomber, and Kate Chambers.

“The Financial Impact of Domestic Partner Benefits in New Hampshire,” Williams Institute, December 2006.

“Economic Benefits from Same-Sex Weddings in New Jersey,” Williams Institute, December 2006.

“Frequently Asked Questions about Providing Domestic Partner Benefits,” M. V. Lee Badgett and Michael A. Ash, Williams Institute, October 2006.

“The Impact of the Colorado Domestic Partnership Act on Colorado's State Budget,” M.V. Lee Badgett, R. Bradley Sears, Roger Lee, and Danielle MacCartney, Williams Institute. October 2006

“The Effect of Marriage Equality and Domestic Partnership on Business and the Economy,” M.V. Lee Badgett and Gary J. Gates, Williams Institute, October 2006.

“The Impact on Washington’s Budget of Allowing Same-Sex Couples to Marry,” M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, and Holning Lau, IGLSS and Williams Institute, 2006.

“The Impact on New Mexico’s Budget of Allowing Same-Sex Couples to Marry,” M.V. Lee Badgett, R. Bradley Sears, Steven K. Homer, Patrice Curtis, and Elizabeth Kukura, IGLSS and Williams Institute, 2006.

“Positive Effects on State of Alaska from Domestic Partnership Benefits,” Williams Institute, 2006.

“The Cost to Ocean County of Providing Pension Benefits to Employees’ Domestic Partners,” Williams Institute, 2006.

“The Impact on New Hampshire’s Budget of Allowing Same-Sex Couples to Marry,” R. Bradley Sears, M. V. Lee Badgett, and Elizabeth Kukura, IGLSS and Williams Institute, 2005.

“Counting on Couples: Fiscal Savings from Allowing Same-Sex Couples in Connecticut to Marry,” M.V. Lee Badgett, R. Bradley Sears, Patrice Curtis, and Elizabeth Kukura, IGLSS and Williams Project on Sexual Orientation and the Law, 2005.

“Will Providing Marriage Rights to Same-sex Couples Undermine Heterosexual Marriage? Evidence from Scandinavia and the Netherlands,” Discussion paper, Council on Contemporary Families and the Institute for Gay and Lesbian Strategic Studies, July 2004.

“The Business Cost Impact of Allowing Same-sex Couples to Marry,” co-authored with Gary Gates. Human Rights Campaign and Institute for Gay and Lesbian Strategic Studies, 2004.

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“Same-sex Couples and Their Children in Massachusetts: A View from Census 2000,” co-authored with Michael Ash, Nancy Folbre, Lisa Saunders, and Randy Albelda, Angles, Institute for Gay and Lesbian Strategic Studies, Amherst, MA, February 2004.
Sears, R. Bradley, and M. V. Lee Badgett. “The Impact on California’s Budget of Allowing Same-Sex Couples to Marry,” Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2004.
Sears, R. Bradley, and M. V. Lee Badgett. “Same-sex Couples and Same-sex Couples Raising Children in California,” Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2004.

“The Bottom Line on Family Equality: The Impact of AB205 on California Businesses,” M. V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project, August 2003.
“Supporting Families, Saving Funds: A Fiscal Analysis of New Jersey’s Domestic Partnership Act,” M.V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, December 2003.
“Equal Rights, Fiscal Responsibilities: The Impact of AB205 on California’s Budget,” M.V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2003.
“Left Out of the Count: Missing Same-sex Couples in Census 2000,” M. V. Lee Badgett and Marc A. Rogers, Institute for Gay and Lesbian Strategic Studies, Amherst, MA, 2003.
"Calculating Costs with Credibility: Health Care Benefits for Domestic Partners," Angles, Vol. 5, Issue 1, 2000.
Income Inflation: The Myth of Affluence Among Gay, Lesbian, and Bisexual Americans, Joint publication of NGLTF Policy Institute and Institute for Gay and Lesbian Strategic Studies, 1998. Reprinted in The Gay & Lesbian Review, Spring 2000.
"The Fiscal Impact on the State of Vermont of Allowing Same-Sex Couples to Marry," IGLSS Technical Report 98-1, Oct. 1998.
Creating Communities: Giving and Volunteering by Gay, Lesbian, Bisexual, and Transgender People, Working Group on Funding Lesbian and Gay Issues, Institute for Gay and Lesbian Strategic Studies, February 1998. (Co-authored with Nancy Cunningham)
“Vulnerability in the Workplace: Evidence of Anti-Gay Discrimination,” Angles: The Policy Journal of the Institute for Gay and Lesbian Strategic Studies, Vol. 2, No. 1, September 1997.
“For Richer, For Poorer: The Cost of Nonrecognition of Same Gender Marriages,” M. V. Lee Badgett and Josh A. Goldfoot, Angles: The Policy Journal of the Institute for Gay and Lesbian Strategic Studies, Vol. 1, No. 2, May 1996.
"Pervasive Patterns of Discrimination Against Lesbians and Gay Men: Evidence from Surveys Across the United States," Lee Badgett, Colleen Donnelly, and Jennifer Kibbe, National Gay and Lesbian Task Force Policy Institute, 1992.
"The Impact of the Construction of Luz SEGS VIII on California and the Project Area," William T. Dickens, Lee Badgett, and Carlos Davidson, February 1989.

OP-EDS AND OTHER PUBLICATIONS: “Gay Marriage Good for Family and Economy,” The Drum Opinion, ABC Online (Australian Broadcasting Corp.), March 6, 2012.
“What Obama Should Do About Workplace Discrimination,” New York Times, Feb. 6, 2012.
“High Costs of Discrimination,” Worcester Telegram, M. V. Lee Badgett and Jody Herman, May 11, 2011.
Featured guest column, The Economist debate on gay marriage, January 6, 2011, http://www.economist.com/debate/days/view/638.
“Summer of Love and Commitment,” The Huffington Post, Sept. 3, 2008.

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“Sexual Orientation, Social and Economic Consequences,” in International Encyclopedia of the Social Sciences, 2nd Edition, ed. William A. Darity, Jr., Macmillan Reference USA, 2008.
“The Wedding Economy,” The New York Times, January 7, 2007.
“The Closet Door’s Open: What’s Behind Hartford’s Surge in Gay Population?” The Hartford Courant, Gary J. Gates and M. V. Lee Badgett, November 5, 2006.
“The Future of Same-Sex Marriage,” Social Work Today, November 2006.
“The Gay Health Insurance Gap,” www.alternet.org, October 26, 2006.
“What’s Good for Same-Sex Couples is Good for Colorado,” The Daily Camera, Boulder, CO, October 28, 2006.
Book review of Inheritance Law and the Evolving Family. By Ralph Brashear. Feminist Economics, vol. 12, no. 1-2, 2006.
“Equality Doesn’t Harm ‘Family Values’”, with Joop Garssen, National Post (Canada), August 11, 2004.
“Prenuptial Jitters: Did Gay Marriage Destroy Heterosexual Marriage in Scandinavia?” Slate Magazine, May 20, 2004, http://slate.msn.com/id/2100884/.
Brad Sears and Lee Badgett, “Tourism and Same-sex Marriage,” San Diego Union-Tribune, June 2, 2004. http://www.signonsandiego.com/uniontrib/20040527/news_lz1e27sears.html
“Equality Is Not Expensive,” Connecticut Law Tribune, April 19, 2004.
“Domestic Partner Bill Won’t Be Burden to Business,” Orange County Register, April 18, 2004, with Brad Sears. “Economics” and “Boycotts”, entries for Encyclopedia of Gay, Lesbian, Bisexual, and Transgender History, ed. By Marc Stein, Scribners, forthcoming Dec 2003.
“Recognizing California Couples: Domestic-Partner Law Attacked by Anti-Gay Senator Could Boost Flow of Cash to State,” M. V. Lee Badgett and R. Bradley Sears, Daily Journal, Oct. 14, 2003.
“A Win at Cracker Barrel,” The Nation, Feb. 10, 2003.
“Why I was a Dem for a Day,” Daily Hampshire Gazette, June 2002.
Commentary on Boy Scouts of America, WFCR, Amherst, MA, August 13, 2001.
"Sexual Orientation," Richard Cornwall and M. V. Lee Badgett, entry for Encyclopedia of Feminist Economics, ed. by Meg Lewis and Janice Peterson, Edward Elgar, 2000.
"Lesbians, social and economic situation," entry for International Encyclopedia of the Social and Behavioral Sciences, forthcoming.
"One Couple's 'Penalty' remains another's privilege", with James Alm and Leslie A. Whittington, Boston Globe, Sept. 3, 2000, p. E2.
“Domestic partner status unfair to gay couples,” Springfield Sunday Republican, op-ed April 2, 2000, p. B3.
“Do Sexual Orientation Policies Help Lesbians?” in Women's Progress: Perspectives on the Past, Blueprint for the Future, Institute for Women’s Policy Research, Fifth Policy Research Conference Proceedings, Washington, DC, 1998.
"Census Data Needed," letter to the editor, The Washington Blade, November 7, 1997, p. 37.
“Same-sex partners bring nurturing--and financial benefits--to the altar,” op-ed piece with Gregory Adams, Chicago SunTimes, June 8, 1996, p. 16.
"The Last of the Modernists: A Reply," Feminist Economics, Vol. 1, No. 2, 1995.

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"Domestic Partner Recognition: Doing the Right--and Competitive--Thing," Synthesis: Law and Policy in Higher Education, Vol. 6, No. 4, Spring 1995.
"Equal Pay for Equal Families," Academe, May/June 1994.
"Lesbian and Gay Campus Organizing for Domestic Partner Benefits," in Higher Education Collective Bargaining During a Period of Change, Proceedings, Twenty-Second Annual Conference, April 1994, The National Center for the Study of Collective Bargaining in Higher Education and the Professions, Baruch College, CUNY, 1994.
"Beyond Biased Samples: Challenging the Myths on the Economic Status of Lesbians and Gay Men," pamphlet published by National Organization of Gay and Lesbian Scientists and Technical Professionals and the Institute for Gay and Lesbian Strategic Studies, 1994. (Early version of book chapter of same title.)
Co-author and co-editor, Labor and the Economy, published by the Center for Labor Research and Education, Institute of Industrial Relations, UC Berkeley, 1989.
"Looking for the Union Label: Graduate Students at U.C.," California Public Employee Relations, No. 85, June 1990.
"Rusted Dreams: Documenting an Economic Tragedy," Labor Center Reporter, No. 219, October 1987.
"How the Fed Works," Labor Center Reporter, No. 177, November 1986.
EXPERT WITNESS EXPERIENCE (LITIGATION): Written Testimony, Bassett v. Snyder, No. 2:12-cv-100382012 (E.D. Mich.), 2012 (challenge to Michigan’s Domestic Partner Benefit Restriction Act).
Written Testimony, Glossip v. Missouri Dep’t of Transp. and Highway Patrol Employees' Ret. Sys., No. 10-CC00434 (Mo. Cir. Ct., Cole Cnty.), 2011 (challenge to denial of death benefit to state trooper’s surviving same-sex partner).
Written Testimony, Collins v. Brewer (later Diaz v. Brewer), No. 2:09-cv-02402 (D. Ariz.), 2010 (challenge to Arizona’s cancellation of domestic partner benefits).
Deposition and Trial Testimony, Perry v. Schwarzenegger (later Perry v. Brown), No. 3:09-cv-02292 (N.D. Cal.), 2010 (challenge to California’s Proposition 8).
Deposition and Written Testimony, Varnum v. Brien, No. CV5965 (Iowa Dist. Ct., Polk Cnty.), 2007 (challenge to exclusion of same-sex couples from marriage in Iowa).
Written Testimony, In re California Marriage Cases, Judicial Council Coordination Proceeding No. 4365 (Calif. Super. Ct., San Francisco Cnty.), 2004 (challenge to exclusion of same-sex couples from marriage in California).
Written Testimony, Deane & Polyak v. Conaway, (Md. Cir. Ct., Baltimore Cnty.), 2005 (challenge to exclusion of same-sex couples from marriage in Maryland)
LEGISLATIVE WITNESS EXPERIENCE (Selected): U.S. Senate Committee on Health, Education, Labor, and Pensions, S.811, The Employment Non-Discrimination Act of 2011, June 12, 2012.
Written Testimony, S. 598, The Respect for Marriage Act: Assessing the Impact of DOMA on American Families, M. V. Lee Badgett, Ilan H. Meyer, Gary J. Gates, Nan D. Hunter, Jennifer C. Pizer, Brad Sears. July 2011.
U.S. House of Representatives, Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Postal Service, and the District of Columbia on HR 2517: Domestic Partnership Benefits and Obligation Act of 2009, July 2009.
U.S. House of Representatives, Committee on Education and Labor, Subcommittee on Health, Employment, Labor, and Pensions, Testimony on Employment Non-Discrimination Act (HR 2015), September 2007.

SIGNIFICANT MEDIA APPEARANCES:
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Featured guest, Encounter, Radio National, ABC (Australian Broadcasting Corp), October 9, 2011.
Featured guest, Faith Middleton Show, http://www.yourpublicmedia.org/content/wnpr/faith-middleton-show-when-gay-peopleget-married, Jan. 13, 2011.
Featured guest, “Same-Sex Marriage, Five Years On,” On Point, National Public Radio, May 27, 2009. http://www.onpointradio.org/2009/05/same-sex-marriage-five-years-on
Featured guest, “Gay Commerce,” Talk of the Nation, National Public Radio, 1997.
Featured guest, “Gay Market,” Odyssey: A Daily Talk Show of Ideas, NPR nationally syndicated show, 2005. http://www.chicagopublicradio.org/DWP_XML/od/2005_05/od_20050512_1200_4906/episode_4906.ram
Interviewed on All Things Considered, “Gay Marriage in Massachusetts, One Year Later,” May 2005. http://www.npr.org/templates/story/story.php?storyId=4655621
Featured guest, CNN American Morning: “The Future of Marriage,” June 2006. http://www.law.ucla.edu/williamsinstitute/images/CNN_AmericanMorning_FutureOfMarriage_LeeBadgett_062006.mov

WORK IN PROGRESS AND PAPERS UNDER REVIEW: “Uncovering Gay, Lesbian, and Bisexual Poverty in the United States,” Randy Albelda, M. V. Lee Badgett, and Alyssa Schneebaum.
“Are Gay People Happy?” M. V. Lee Badgett and Alyssa Schneebaum.
“Minority stress and its association with cohabitation and Domestic Partnership registration in California,” Natalya Maisel, Gary J. Gates, and M. V. Lee Badgett, August 2007, under review.
“Gay and Lesbian Families: A Research Agenda,” Gary J. Gates and M. V. Lee Badgett, August 2006.
"Breadwinner Dad, Homemaker Mom: An Interdisciplinary Analysis of Changing Gender Norms in the United States, 19771998." Lee Badgett, Pamela Davidson, Nancy Folbre, and Jeannette Lim, in progress, 2000.

SELECTED PRESENTATIONS OF PAPERS: “Waves of Change: Is Latin America Really Following Europe in Same-Sex Couples?,” at 8th Annual Update, Williams Institute, “Global Arc of Justice: Sexual Orientation Law Around the World, March 14, 2009.
“Gay poverty,” Presented at 2009 Allied Social Science Association Meeting; 2009 Association for Public Policy Analysis and Management Research Conference; 2008 IAFFE Research Conference, Torino, Italy, June 2008; Williams Institute Annual Update, February 2008.
“Registered Domestic Partnerships Among Gay Men and Lesbians: The Role of Economic Factors,” (with Gary J. Gates and Natalya Maisel), presented at 2007 APPAM Meeting, Washington, DC; 2008 Allied Social Science Associations Annual meeting, New Orleans.
“Predicting Same-Sex Marriage in Europe & the US,” Presented at 2008 IAFFE Research Conference, Torino, Italy, June 2008.
“Social Lab Outcomes: Same-Sex Couples and Legal Recognition,” Temple University Law School, “States as Social Laboratories,” Oct. 20, 2007.
“The Double-Edged Sword in Gay Economic Life: Marriage and the Market.” Washington & Lee School of Law, Feb 2008.
“Does diversity make a difference? A view from the marketplace.” Keynote Address, 7th annual international conference on diversity in organizations, communities, and nations, Amsterdam, The Netherlands. 7/1/2007
“Why Marry?” Presented at 2006 IAFFE Research Conference, Sydney, Australia, July 2006; New School for Social Research, October 2006; Sociology Family Working Group, UCLA, 2006.

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“Not-So-Gay Divorce: A Reason for Marriage,” Gay Divorce Conference, King’s College London, May 20, 2006.

“An exploration of foster care and adoption among lesbians and gay men,” joint work with Jennifer Macomber, Kate Chambers, Gary Gates. Family Pride conference, Philadelphia, PA, May 2006.

“Thinking for Change/Changing our Thinking: Effective Research in GLBT Policy Debates”, Presidential Invited Address, Division 44, American Psychological Association Convention, August 2005.

“Survey Data on Sexual Orientation: Building a Professional Consensus,” presented at 2005 Joint Statistical Association Meetings, August 2005. Also presented to Canadian Population Society, June 2005; Williams Project Annual Update, UCLA Law School, Feb. 2005.

“Alternative Legal Statuses for Same-sex couples and other families: Can Separate Be Equal Enough?” Presented at International Association for Feminist Economics, Washington DC, July 2005; APPAM, Washington, DC, November 2005; UCLA Law School 2006.

“Looking into the European Crystal Ball: What Can the U.S. Learn About Same-Sex Marriage?” Tulsa Gay and Lesbian History Project, October 2004; University of Connecticut, October 2004; Yale University, February 2005; American Psychological Association, August 2005; National Council of Family Relations (invited special session), 2005.

“Predicting Partnership Rights: Applying the European Experience to the United States,” Yale University Law School, March 5, 2005.

“Asking the Right Questions: Making the Case for Sexual Orientation Data,” Joint Statistical Meetings of the American Statistical Association, Toronto, August 2004; Williams Project Annual Update, UCLA, February 2005; Canadian Population Society, June 3, 2005.

“A New Gender Gap: Sex Differences in Registered Partnerships in Europe,” International Association for Feminist Economics research conference, London, August 2004.

“Variations on an Equitable Theme: International Same-sex Partner Recognition Laws,” Research Conference of International Associate for Feminist Economics, July 2002. Stockholm University, September 2003; University of Linz, Austria, November 2003; University of Amsterdam, June 2004; American Political Science Association, Chicago, Sept. 2004.

“The Myth of Gay Affluence and Other Tale Tales: The Political Economy of Sexual Orientation,” University of California, San Diego, June 2002.

"A Family Resemblance: Legal Recognition of Same-Sex Partners in the United States," Research Conference of International Association for Feminist Economics, Oslo, Norway, June 2001; University of Southern Maine, October 2001; University of Massachusetts, Feb. 2002; Washington University Political Science Department, March 2002; University of Wisconsin, LaCrosse, April 2002.

"A Movement and a Market: GLBT Economic Strategies for Social Change," University of Wisconsin, LaCrosse, April 2002; Macalester College, April 2002.

"Job Gendering: Occupational Choice and the Marriage Market," Research Conference of International Association for Feminist Economics, Ottawa, CA, June 1999.

"Tolerance, Taboos, and Gender Identity: The Occupational Distribution of Lesbians and Gay Men," Research Conference of International Association for Feminist Economics, Amsterdam, The Netherlands, June 1998.

“The Impact of Affirmative Action on Public-Sector Employment in California,” ASSA Meetings, 1997.

“Tolerance or Taboos: Occupational Differences by Sexual Orientation,” presented at American Economic Association Meetings, Jan. 1996, and American Psychological Association convention in Toronto, August 1996.

"A Race, Ethnicity, and Gender Analysis of the 1990-91 Recession," ASSA Meetings 1995.

"Choices and Chances: Is Coming Out at Work a Rational Choice?" The Sixth North American Lesbian, Gay, and Bisexual Studies Conference, University of Iowa, November 18, 1994.

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"Civil Rights and Civilized Research: Constructing a Sexual Orientation Policy Based on the Evidence," Association for Public Policy Analysis and Management Research Conference, Oct. 27, 1994
"Where the Jobs Went in the 1990-91 Downturn," National Conference on Race Relations and Civil Rights in the Post Reagan-Bush Era, The Roy Wilkins Center, Humphrey Institute, University of Minnesota, October 1994.
"Lesbian and Gay Campus Organizing for Domestic Partner Benefits," The American Political Science Association meeting, Sept. 1994.
Panelist, "Developing Lesbian/Gay Studies in Economics," ASSA Meetings, 1994.
"The Rainbow at Work: Differences in the Economic Status of Women Workers in the United States," presented at the 5th International Interdisciplinary Congress on Women, 1993.
"The Economic Well-Being of Lesbians and Gay Men: Pride and Prejudice," December 1992, presented at 1993 ASSA Meetings.
"Affirmative Action in a Changing Legal and Economic Environment," revised, December 1992, presented at 1993 ASSA Meetings.

"The Effects of Structural Change on the Race and Gender Distribution of Employment," with Rhonda M. Williams, presented at Eastern Economic Association Meeting, 1992.
"Changes in Racial Inequality Among Women: Evidence from Unemployment Rates," presented at AEA Meetings, 1992.
"Labor Market Discrimination--Economic and Legal Issues for Gay Men and Lesbians," presented at AEA Meetings, 1992.
"Rising Black Unemployment: Changes in Job Stability or in Employability?" presented at National Economic Assoc., 1992.

"Rising Black Unemployment and the Role of Affirmative Action Policy," presented at APPAM Research Conference, Oct. 1990.

INVITED PRESENTATIONS (Selected): IAFFE, 2011, Hangzhou China: Roundtable on Sexuality and the Economy, Roundtable on Enhancing IAFFE’s Vision in the 21st Century. June, 2011.
Keynote Address on Sexual orientation and economics, University of Illinois-Chicago, Sept. 30, 2009.

Multiple talks, University of Minnesota, Duluth, April 2009.
“On the Road to Equality: Health Care for LGBT Americans,” Opening address, 2007 National LGBT Health Expo, Washington, DC, November 2, 2007.

“Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men,” University of Toronto, March 16-17, 2005.
Guest speaker, Womens studies and political sciences courses at Smith College and Amherst College, Spring 2003; Fall 2004.
Panelist, “Aging in the Gay Community,” American Association of Retired Persons, June 2000.
“Money and Our Discontents,” Keynote speech, Smart Women/Smart Money conference by the Astraea Foundation. Nov. 1999.

"Homo Economics: The Myth of Gay Affluence and Other Tall Tales," University of Connecticut, March 1999; American University, October 1999.
Same-Sex Couples and Public Policy, panel member, University of Maryland, College Park, October 1999.

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"A Bridge to the Future or the Road to Nowhere? Respectability and Lesbian and Gay Think Tanks," Remarks prepared for the Politics of Respectability Conference, University of Chicago, April 1999
Panelist, Unifying Anti-Subordination Theories, DePaul University Law School, February 1999.
"Lesbians, Gays, and Bisexuals in a Gender Agenda," Roundtable on Feminism and Public Policy, 1998 ASSA Meetings, Chicago, IL.
“Economic Issues for Lesbians,” Workshop on Lesbian Health Research Priorities, Institute of Medicine, Board on Neuroscience and Behavioral Health, Washington, DC, October 6, 1997.
“Lesbians, Gays, Bisexuals, and Transgenders: Who Gives, How Much, and Why,” OutGiving Conference, Aspen, CO, Sept. 1997; Horizons Foundation and United Way, San Francisco, CA, Oct. 1997; NGLTF Creating Change conference, San Diego, Nov. 1997; Cream City Foundation Milwaukee, WI; Chicago, IL; Boston Foundation, February 1998.
“Lesbian and Gay Money: Is There a Gender Gap?” Towson State University, March 1997.
Panelist, “Out in the Workplace,” University of Pennsylvania, Feb. 10, 1997.
“Workplace Policy Issues for Lesbian, Gay, and Bisexual People,” Gender, Race, Economics, and Public Policy Conference of the New School for Social Research, April 5, 1996.
Panelist, “Compensating for Gender, Race, and Class Inequalities: Is Affirmative Action the Means to Social Justice,” A Future of Equality: Feminist Rethinkings of the Affirmative Action and Welfare Debates, Yale University Women’s Center, March 30, 1996.
“Equal Pay for Equal Work,” University of Delaware Lavender Scholars Series, March 7, 1996.
“Lesbian and Gay Think Tanks,” Center for Lesbian and Gay Studies, CUNY Graduate School, Feb. 9, 1996.
Panelist, Affirmative Action in the 21st Century, Chicago United, Feb. 15, 1996.
"The Economic Status of Lesbians and Gay Men: Discrimination, Data, and Debate," Bureau of Labor Statistics, U.S. Department of Labor, June 15, 1995; Institution for Social and Policy Studies, Yale University, Sept. 1995; University of Massachusetts, Boston, May 1996.
Panelist, “Gay Money: Power of the Purse,” National Lesbian & Gay Journalists Association, Oct. 19, 1995.
Panelist, Domestic Partner Benefits and Other Gay Rights Policy Issues: Creating Change on Campus, American Association of University Professors, June 9, 1995.
Prepared testimony, Select Education and Civil Rights Subcommittee, Committee on Education and Labor, U. S. House of Representatives, Testimony on the 30th Anniversary of the Equal Pay Act, 1994. (Hearing cancelled at the last minute.)
"Economic Evidence of Sexual Orientation Discrimination," Gay, Lesbian, and Bisexual Studies Faculty Seminars, Univ. of Massachusetts, Amherst, Dept. of Economics and Program for Gay, Lesbian, and Bisexual Concerns, May 11, 1994.
"The Economics of Being Lesbian, Gay, or Bisexual: Pride, Prejudice and Politics," Brown Bag Series in Gay, Lesbian, and Bisexual Studies, University of Massachusetts, Amherst, May 11, 1994.
"Thinking Homo/Economically," conference presentation, Center for Lesbian and Gay Studies, CUNY Graduate School, May 7, 1994.
"Lesbian and Gay Campus Organizing for Domestic Partner Benefits," Annual Conference, The National Center for the Study of Collective Bargaining in Higher Education and the Professions, Baruch College, CUNY, April 19, 1994. Also presented at the American Political Science Association meeting, Sept. 1994.

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"The Changing Contours of Discrimination: Race, Gender, and Structural Economic Change," presented at University of Michigan, School of Social Work, Profs. Mary Corcoran and Sheldon Danziger, March, 15, 1994.
"Redefining Families: Research and Policy," American Political Science Association meetings, Washington, D.C., Sept. 3, 1993.
"Lesbian Rights in Maryland," Maryland National Organization for Women, statewide conference, May 1, 1993.
"A Cost/Benefit Analysis of Coming Out," presented at OUT Magazine press conference, broadcast on CSPAN, April 21, 1993.

"Detecting Discrimination," at 1992 NGLTF Creating Change Conference, Los Angeles.

GRANTS: Ford Foundation, 2003-2006 (2 grants), Data on Sexual Orientation (total $600,000) 1995 Wayne F. Placek Award, American Psychological Foundation, “The Impact of Attitudes on Lesbian and Gay Male Earnings and Occupations.” ($15,000) The Aspen Institute, Nonprofit Sector Research Fund, “Lesbian, Gay, and Bisexual Giving and Volunteering,” 1996. ($40,000) 2002 Wayne F. Placek Award, American Psychological Foundation, “Health Insurance Inequality for Gay, Lesbian, and Bisexual People,” with Michael A. Ash.

PANELS AND COMMITTEES: Advisory Committee for “Real Families, Real Facts: Research Symposiums on LGBT-headed Families,” Family Pride, held May 2006. Planning committee and facilitator for research meeting held at Out & Equal Workplace conference, Sept. 2005. Reviewer, Wayne F. Placek Award, American Psychological Foundation Women's Funding Network, Lesbian Donor Research Project Advisory Committee, 1997-98 Visiting Lecturer and co-designer, Traveling Feminist Economics Ph.D. Course, Univ. of Minnesota, 1997-98

FELLOWSHIPS AND HONORS: Distinguished Book Award, American Psychological Association, Division 44, 2010 Distinguished Faculty Lecture, University of Massachusetts Amherst, Nov. 9. 2009, and Chancellor’s Medal (the highest honor bestowed on individuals for exemplary and extraordinary service to the campus) Named one of twenty most influential lesbians in academia, Curve Magazine, 2008 Rockwood Leadership Fellow in Lesbian, Gay, Bisexual, and Transgender Community & Advocacy, 2008-09 2005 Dukeminier Award for Best Sexual Orientation Law Review Article College Outstanding Teacher Award, Social and Behavioral Sciences, University of Massachusetts, 2000-2001 Out 100, Out Magazine, 2001. One of Our Best and Brightest Activists, The Advocate, 2000. Lilly Fellow, Center for Teaching, University of Massachusetts, Amherst, 1999-2000 Certificate of Appreciation, Stonewall Center, 1999. Certificate of Recognition, University of Maryland at College Park Diversity Initiative, 1994-95 Graduate Opportunity Fellowship, 1985-86, UC Berkeley A.B. with General Honors, University of Chicago Maroon Key Society, University of Chicago Abram L. Harris Prize, 1978-79, 1979-80, University of Chicago

AFFILIATIONS Association for Public Policy Analysis & Mgmt. American Economic Association Editorial Board (and past Associate Editor), Feminist Economics International Association for Feminist Economics (past board member) Editorial board, Sexuality Research and Social Policy ; Sexuality & the Law (Social Science Research Network); Law and
Social Inquiry

REFEREE:
Quarterly Journal of Economics, Industrial Relations, Journal of Human Resources, Feminist Economics, Journal of Policy Analysis & Mgmt., Amer. Sociological Review, Review of Social Economy, Review of Economics and Statistics, Columbia University Press, National Science Foundation, Qualitative Sociology, Social Problems, University of Wisconsin Press, Journal of Population Economics, Routledge Press, Princeton University Press, Industrial and Labor Relations Review, Demography,

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American Journal of Sociology, Contemporary Economic Policy, Journal of Marriage and the Family, Cambridge Journal of Economics, Social Forces, Health Affairs, and others

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Exhibit B

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Bibliography
Ash, Michael, and M. V. Lee Badgett, “Separate and Unequal: The Effect of Unequal Access to Employment-Based Health Insurance on Gay, Lesbian, and Bisexual People,” Contemporary Economic Policy, 24: 582-599, 2006.
Badgett, M. V. Lee, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men, University of Chicago Press, 2001.
Badgett, M. V. Lee, When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage, New York University Press, 2009.
Badgett, M. V. Lee, “The Economic Value of Marriage for Same-sex Couples,” Drake Law Review, Vol. 58, No. 4, 2010, pp. 1081-1116.

Badgett, M. V. Lee, and Jody L. Herman, “Patterns of Relationship Recognition by Same-Sex Couples in the United States,” Williams Institute, November 2011.

Badgett, M. V. Lee, R. Bradley Sears, and Deborah Ho, “Supporting Families, Saving Funds: An Economic Analysis of Equality for Same-sex Couples in New Jersey,” Rutgers Journal of Law & Public Policy Vol. 4, No. 1, 2006.

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Gates, Gary, “Marriage Equality and the Creative Class,” Williams Institute, 2009.
Gates, Gary, M.V. Lee Badgett, Jennifer Macomber, and Kate Chambers, “Adoption and Foster Care by Gay and Lesbian Parents in the United States,” Williams Institute and Urban Institute, March 2007.
Gary J. Gates, M. V. Lee Badgett, and Deborah Ho, “Marriage, Registration, and Dissolution by Same-sex Couples in the United States,” Williams Institute, 2008.
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Romero, Adam P., Clifford J. Rosky, M. V. Lee Badgett, and Gary J. Gates, “Census Snapshot: Nevada,” Williams Institute, December 2007.
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1

JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)

2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)

3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

3325 Wilshire Boulevard, Suite 1300 4 Los Angeles, California 90010

5 Email: jdavidson@lambdalegal.org tborelli@lambdalegal.org

6

prenn@lambdalegal.org

sday@lambdalegal.org

7 Tel: 213.382.7600 | Fax: 213.351.6050

8 CARLA CHRISTOFFERSON (pro hac vice)

9 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)

10 RAHI AZIZI (pro hac vice)
O’MELVENY & MYERS LLP 11 400 South Hope Street

Los Angeles, California 90071 12 Email: cchristofferson@omm.com

13

dsestito@omm.com

mcristol@omm.com

14

razizi@omm.com

Tel: 213.430.6000 | Fax: 213.430.6407

15

KELLY H. DOVE (Nevada Bar No. 10569) 16 MAREK P. BUTE (Nevada Bar No. 09989)

17 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100

18 Las Vegas, Nevada 89169

Email: kdove@swlaw.com

19

mbute@swlaw.com

Tel: 702.784.5200 | Fax: 702.784.5252 20

21 Attorneys for Plaintiffs

22

UNITED STATES DISTRICT COURT

23

DISTRICT OF NEVADA

24 BEVERLY SEVCIK and MARY BARANOVICH; ANTIOCO CARRILLO

25 and THEODORE SMALL; KAREN

GOODY and KAREN VIBE; FLETCHER 26 WHITWELL and GREG FLAMER;

27

MIKYLA MILLER and KATRINA MILLER; ADELE TERRANOVA and

28 TARA NEWBERRY; CAREN

No. 2:12-CV-00578-RCJ-PAL
DECLARATION OF GEORGE CHAUNCEY, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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1

CAFFERATA-JENKINS and FARRELL CAFFERATA-JENKINS; and MEGAN

2 LANZ and SARA GEIGER,

3

Plaintiffs,

4

v.

5 BRIAN SANDOVAL, in his official capacity

as Governor of the State of Nevada; DIANA 6 ALBA, in her official capacity as Clerk for

7

Clark County; AMY HARVEY, in her official capacity as Clerk for Washoe

8 County; and ALAN GLOVER, in his official capacity as Clerk-Recorder for Carson City,

9 Defendants

10

11 I, George Chauncey, hereby declare and state as follows:
12 Expert Background and Qualifications
13 1. I am a Professor of History and American Studies and chair of the Department of
14 History at Yale University, where I have taught since 2006. My testimony will relate to my
15 opinions as an expert in the history of the United States in the twentieth century and gender,
16 homosexuality, sexuality, and civil rights in the United States, with a particular focus on the
17 history of discrimination experienced by gay men and lesbians in the United States. I have actual
18 knowledge of the matters stated in this declaration, and could and would so testify if called as a
19 witness.
20 2. My background, experience, and publications are summarized in my curriculum
21 vitae, which is attached as Exhibit A to this declaration. In the past four years, I have testified as
22 an expert – either at trial or through declaration – or been deposed as an expert in Perry v.
23 Schwarzenegger, No. 09-2292 (N.D. Cal.), Gill v. Office of Pers. Mgmt., No. 09-10309 (D.
24 Mass.), Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs., No. 09-11156 (D.
25 Mass.), Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), Pedersen v. Office of
26 Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), Golinski v. Office of Personnel
27 Management, 3:10-cv-0257-JSW (N.D. Cal.), Dragovich v. U.S. Dep’t of the Treasury, CV 4:10-
28

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1 01564-CW (N.D. Cal.), Donaldson v. Montana, No. 10-702 (Mont. 1st Jud. Dist. Ct.), and

2 Jackson v. Abercrombie, No. 11-734 (D. Haw.) – all of which involved testimony on topics

3 similar to those discussed below.

4

3. From 1991 to 2006, I was a Professor of History at the University of Chicago. I

5 am the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World,

6 1890-1940 (New York: Basic Books, 1994), which won the Organization of American

7 Historians’ Merle Curti Award for the best book in social history and Frederick Jackson Turner

8 Award for the best first book in any field of history, the Los Angeles Times Book Prize in

9 History, and Lambda Literary Award. I am also the author of Why Marriage? The History

10 Shaping Today’s Debate over Gay Equality (New York: Basic Books, 2004); coeditor of three

11 books and special journal issues, including Hidden From History: Reclaiming the Gay and

12 Lesbian Past (NAL, 1989); and the author of numerous articles, which are listed in my

13 curriculum vitae, attached to this declaration as Exhibit A.

14

4. In preparing this Declaration, I reviewed the Complaint in this case. I base my

15 opinions on my own research, experience and publications, the work of other historians and

16 scholars as listed in the attached bibliography (Exhibit B), and the general statutes of a number of

17 states, including Nevada, New York, Connecticut, Vermont, and New Hampshire.

18

5. I have been retained by counsel for Plaintiffs in this litigation. I am being

19 compensated at a rate of $400 per hour for preparation of reports or declarations; $450 per hour

20 for time spent preparing for and giving deposition or trial testimony; and $4,000 per day spent

21 preparing for or attending trial. My compensation does not depend on the outcome of this

22 litigation, the opinions I express, or the testimony I provide.

23

Summary of Opinions

24

6. It is my professional opinion that the historical record, which is outlined below,

25 demonstrates that gay and lesbian people have been subject to widespread and significant

26 discrimination and hostility in the United States.

27

7. Through much of the twentieth century, in particular, gay men and lesbians

28 suffered under the weight of medical theories that treated their desires as a disorder; penal laws

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1 that condemned their consensual adult sexual behavior as a crime; police practices that

2 suppressed their ability to associate and socialize publicly; censorship codes that prohibited their

3 depiction on the stage, in the movies, and on television; and federal policies and state regulations

4 that discriminated against them on the basis of their homosexual status. These state policies and

5 ideological messages worked together to create and reinforce the belief that gay and lesbian

6 persons comprised an inferior class to be shunned by other Americans.

7

8. Despite social and legal progress in the past thirty years towards greater

8 acceptance of homosexuality, gay and lesbian people continue to live with the legacy of the anti-

9 gay measures enacted in the 1930s, 1940s, and 1950s and the attitudes that motivated those

10 measures. That legacy is evident both in laws that remain on the books and in the many legal

11 protections that have not been enacted.

12

9. Among the many products of the legacy of discrimination in the twentieth century,

13 the most conspicuous today include Congress’ repeated failure to enact or even seriously consider

14 federal legislative protections for gay and lesbian people in housing, employment, and public

15 accommodations; the numerous state statutes and constitutional amendments that brand gay men

16 and lesbians as second-class citizens by denying them the right to marry the person they love; and

17 the federal Defense of Marriage Act, which prohibits the federal government from recognizing

18 such a marriage when it does occur. The legacy of discrimination is also evident in the

19 demeaning stereotypes and inflammatory rhetoric used by anti-gay organizations and public

20 officials as they campaign to enact further measures meant to erode gay people’s civil rights and

21 diminish their status as full citizens of the United States – campaigns that are, to this day, very

22 often successful.

23

10. Today, the limited civil rights enjoyed by gay and lesbian Americans vary

24 substantially from region to region and are still subject to the vicissitudes of public opinion. Like

25 other minority groups, gay men and lesbians often must rely on judicial decisions to secure equal

26 rights.

27

28

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1

History of Discrimination Against Gay and Lesbian People in the United States

2 I. Introduction

3

11. While there is ample evidence that same-sex attraction, love, and intimacy have

4 persisted across the ages, most historians now agree that the concept of the homosexual and the

5 heterosexual as distinct categories of people emerged only in the late nineteenth century. This

6 concept had profound effects on the regulation of homosexuality. Early American legislators,

7 drawing on their understanding of ancient Judeo-Christian prohibitions against sodomy and

8 “unnatural acts,” penalized a wide range of non-procreative behavior, including many forms of

9 what would now be called homosexual conduct. While these laws prohibited conduct, it was in

10 the twentieth century that governments began to classify and discriminate against certain of their

11 own citizens on the basis of their status or identity as homosexuals.

12

12. Official, government-sanctioned hostility and discrimination has had a profound

13 and enduring negative impact on lesbians and gay men in American society. In the 1920s, the

14 State of New York prohibited theaters from staging plays with lesbian or gay characters.

15 Beginning in the 1930s and 1940s, many states prohibited gay people from being served in bars

16 and restaurants. In the 1950s, the federal government banned the employment of homosexuals

17 and insisted that its private contractors ferret out and dismiss their gay employees. It also

18 prohibited gay foreigners from entering the country or securing citizenship. Until the 1960s, all

19 states penalized sexual intimacy between men. Throughout the twentieth century, many

20 municipalities launched police campaigns to suppress gay meeting places, and sought to purge

21 gay civil servants from government employment.

22

13. Private hostility and discrimination, often encouraged by government officials, has

23 had a similarly profound and enduring negative effect on lesbians and gay men in American

24 society. Until the 1970s, leading physicians and medical researchers claimed that homosexuality

25 was a pathological condition or disease. In the 1930s, the Hollywood studios enacted a

26 censorship code that for nearly thirty years prohibited the discussion of gay issues or the

27 appearance of gay or lesbian characters in the era’s most powerful communications medium. In

28 the 1940s and 1950s, municipal police officials, state governmental leaders, local newspapers,

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1 and national magazines justified anti-gay discrimination and the suppression of gay meeting

2 places by fostering frightening stereotypes of homosexuals as child molesters. These stereotypes

3 have had enduring consequences, and continue to inspire public fears and hostility, especially

4 concerning gay teachers and parents. In the 1980s, the early press coverage of AIDS reinforced

5 the view that homosexuals were diseased and threatened other Americans. In the 1990s, many

6 clergy condemned (and still condemn) homosexuality as sinful. The Southern Baptist

7 Convention, for example, called for a boycott of all Disney products because Disney offered

8 domestic partnership benefits to its employees and Disneyland organized gay theme nights. Also,

9 some anti-gay groups threatened to organize boycotts against the sponsors of network television

10 shows which included gay characters.

11

14. Historically, anti-gay measures often were enacted or strengthened in response to

12 periods of relative growth in the visibility or tolerance of gay people. For example, the

13 effervescence and visibility of gay life in the 1920s contributed to the backlash gay and lesbian

14 people endured during the Great Depression. The increased visibility of gay men and lesbians

15 during the Second World War helped precipitate a second wave of hostility in the late 1940s and

16 1950s. The dramatically increased visibility of gay people in the 1970s and 1980s, and their

17 success in persuading some state and local governments to include sexual orientation in their anti-

18 discrimination laws, resulted in a wave of referenda and initiatives between 1977 and the early

19 1990s that overturned such laws and/or prohibited the enactment of others.

20

15. In recent decades, and especially in the last twenty years, many (though not all) of

21 these discriminatory measures were repealed, but considerable discrimination and animosity

22 persisted. Given the long history of campaigns demonizing homosexuals as child molesters, it is

23 unsurprising that in 1977 – the year Anita Bryant launched her “Save Our Children” campaign –

24 two-thirds of Americans told pollsters they objected to lesbians or gay men being hired as

25 elementary school teachers. By 1992, after fifteen years of extensive public discussion of this and

26 other gay issues, opinion had shifted, but half of those parents polled still rejected the idea of their

27 child having a gay elementary school teacher. By 2002, about forty percent of Americans still

28

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1 were unwilling to have elementary schools employ gay teachers, and one-third of them found gay

2 high school teachers unacceptable.

3

16. When marriage emerged as the new flashpoint in debates over civil rights for gay

4 men and lesbians almost two decades ago, the debate was shaped by the legacy of anti-gay

5 policies and attitudes. Many Americans initially responded to the idea that gay and lesbian

6 couples should be allowed to marry with the same misgivings and even hostility with which they

7 once greeted the idea of gay teachers or gay characters on television sitcoms. Opponents of

8 marriage equality mobilized some of the most enduring anti-gay stereotypes to heighten public

9 apprehension. For instance, during the 2008 campaign over Proposition 8 – the California ballot

10 initiative that revoked the marriage rights of gay men and lesbians that the California Supreme

11 Court had recognized under the state constitution – several television commercials aired by the

12 supporters of Proposition 8 warned that marriage equality might encourage children to become

13 homosexuals themselves. The recent campaign to repeal marriage equality in Maine used the

14 same tactics, including recycling commercials and scripts from the Proposition 8 campaign

15 because they had been so effective in California. Likewise, material from the Nevada campaign

16 to amend the state constitution to bar marriage for same-sex couples stated “Let’s not experiment

17 with Nevada’s children.” The approval of Proposition 8 in California, Question 1 in Maine,

18 Question 2 in Nevada, and similar laws and constitutional amendments in a total of forty-one

19 states indicates the enduring influence of anti-gay hostility and the persistence of ideas about the

20 inequality of gay people and their relationships. The civil rights enjoyed by gay and lesbian

21 people throughout the United States continue to be subject to the vicissitudes of public opinion in

22 an ever-changing social, political, and cultural landscape.

23

17. At several critical junctures, a handful of state and federal courts have been the

24 only authorities willing to defend the rights of gay people against the antipathy of the majority.

25 In the 1950s and 1960s, at a time when overwhelming public sentiment supported the

26 criminalization of gay bars and other meeting places, state courts in California and New York

27 ruled that gay people had the right to assemble. In 1954, the United States Supreme Court ruled

28 that the United States Post Office could not ban a gay political magazine from the mails. In the

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1 1990s, when voters in cities and states across the country were voting to ban states and local

2 municipalities from enacting anti-discrimination protections for gay people, the Supreme Court,

3 in Romer v. Evans, struck down a Colorado constitutional amendment that withdrew from gay

4 men, lesbians, and bisexuals, but no others, specific legal protection from discrimination.

5 Sometimes quickly and sometimes more slowly, these decisions played a critical role in shifts in

6 public opinion.

7 II. The Roots of Anti-Gay Discrimination

8

18. The first American laws against homosexual conduct were rooted in the earliest

9 English settlers’ understanding of the religious and secular traditions that prohibited sodomy, and

10 they reflected the ambiguity of those traditions. Although sodomy included some forms of what

11 today would be called homosexual conduct, medieval theologians did not use sodomy to refer

12 systematically and exclusively to such conduct; for example, they rarely understood sodomy to

13 include oral sex or sex between women.

14

19. The English Reformation Parliament of 1533 turned the religious injunction

15 against sodomy into the secular crime of buggery when it made “the detestable and abominable

16 vice of buggery committed with mankind or beast” punishable by death. The English courts

17 interpreted this to apply to sexual intercourse between a human and an animal and anal

18 intercourse between a man and woman or between two men.

19

20. Colonial American statutes drew on these religious and secular traditions and

20 shared their imprecision in the definition of the offense. Variously defining the crime as (the

21 religious) sodomy or (the secular) buggery, they generally proscribed anal sex between men and

22 men, men and women, and humans and animals, but their details and their rationales varied. The

23 southern colonies generally adopted the English law against buggery, while the Puritan New

24 England colonies usually drew on religious traditions to penalize many forms of “carnall

25 knowledge,” including adultery, fornication, sex with prepubescent girls, and “men lying with

26 men.” Puritan clergy in the New England colonies were especially vigorous in their

27 denunciation of sodomitical sins as contrary to God’s will, but their condemnation was motivated

28 by the pressing need to increase the population and to secure the stability of the family, as well as

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1 their reading of scripture. In the Massachusetts Bay Colony, sodomy was prohibited in 1641 by a

2 statute taken directly from Leviticus: “If any man lyeth with mankinde as he lyeth with a

3 woeman, both of them have committed abhomination, they both shall surely be put to death.”

4 Although several men were executed for sodomy, the colonies rarely prosecuted men for this

5 offense, for reasons that still are not entirely clear to historians.

6 III. Modern American History: 1890-1940

7

21. Prosecutions for sodomy and related offenses increased dramatically in the late

8 nineteenth and early twentieth centuries as a result of the emergence of the idea of the

9 homosexual as a distinct category of person, the expansion of laws penalizing homosexual

10 conduct, and the growing influence of religiously-inspired moral reform societies, which insisted

11 on criminal prosecutions. In 1914, for example, the Supreme Court of Nevada held that the

12 state’s statute criminalizing “infamous crimes against nature” encompassed oral as well as anal

13 intercourse, each being an “‘abominable crime not fit to be named among Christians.’” In re

14 Benites, 37 Nev. 145, 149 (1914).

15

22. These types of prosecutions continued to penalize people on the basis of their

16 homosexual conduct rather than their identity as homosexuals. Current historical research

17 suggests that the concept of the homosexual as a distinct category of person developed as recently

18 as the late nineteenth century. The word “homosexual” appeared for the first time in a German

19 pamphlet in 1868, and was introduced to the American lexicon only in 1892. Between the 1920s

20 and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and

21 responding both to new conceptions of the homosexual as an individual and to the growing

22 visibility of those individuals, began to classify and discriminate against certain of its citizens on

23 the basis of their status or identity as homosexuals. This discrimination reached remarkable, and

24 still largely unrecognized, proportions.

25

23. The dramatic growth of American cities in the late nineteenth century permitted

26 lesbians and gay men to develop a more complex and extensive collective life than was possible

27 in small towns and rural areas. While everyone was likely to know everyone else’s business in

28 small towns, the size, complexity, and relative anonymity of cities made it easier for gay people

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1 (and other nonconformists) to forge a collective life with people like themselves, away from the

2 eyes of hostile outsiders. The early history of the migration of gay people to the relative freedom

3 of the cities is little understood, but it seems to have increased in the early twentieth century, at

4 about the same time as growing numbers of African Americans fled the small towns of the Jim

5 Crow South for the relative freedom of northern cities. Like African Americans, gay people, both

6 black and white, found that the relative freedom of city life was tempered by continuing hostility

7 and discrimination.

8

24. The emergence of gay and lesbian communities described in this declaration took

9 place in varying degrees in every American city studied by historians. Because the field of

10 lesbian and gay history remains relatively young in 2012 and has been hampered by the legacy of

11 censorship described below, historians still know most about the history of such communities in

12 major metropolitan centers such as New York, Chicago, San Francisco, and Los Angeles, and

13 they will therefore loom large in the history that follows. However, recent studies of the gay

14 history of smaller cities and communities, ranging from Buffalo, New York, and Portland,

15 Oregon, to Jackson, Mississippi, and its surrounding rural areas, both confirm the broad outlines

16 of the history described here and reveal regional variations in that history. Important recent

17 historical studies of the development of federal and military policies concerning homosexuality

18 and gay citizens have documented discriminatory laws and policies that had nationwide effects.

19

25. New York City provides one of the best documented examples of the emergence

20 of a distinctive gay world in the early twentieth century. By the 1910s, New York’s “gay world”

21 included gay residential and commercial enclaves in several immigrant, African American, and

22 bohemian neighborhoods; widely publicized dances and other social events; and a host of

23 commercial establishments where gay people gathered, ranging from saloons, speakeasies, and

24 bars to cheap cafeterias and elegant restaurants. In the 1920s and early 1930s, gay writers and

25 performers produced a flurry of gay literature and theater. Some gay people were involved in

26 long-term relationships they called marriages. Most remained very careful to conceal their

27 homosexuality from non-gay associates, though, for fear of losing their jobs, homes, and respect.

28

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1

26. Many Americans responded to the growing visibility of gay life with fascination

2 and sympathy, regarding it as simply one more sign of the growing complexity and freedom from

3 tradition of a burgeoning metropolitan culture. Popular fascination with gay culture reached a

4 crescendo during the Prohibition Era (or Jazz Age), when lesbians ran some of the most popular

5 tearooms and cafes in bohemian neighborhoods such as New York’s Greenwich Village and

6 Chicago’s Towertown. That said, the poor, immigrant, African American, and bohemian

7 neighborhoods where gay life became most visible were regarded as the underside of city life by

8 “respectable society.”

9

A. Hostile Religious and Medical Views Prompted the Escalation of Anti-Gay

10

Policing in the Early Twentieth Century

11

27. Other Americans regarded the growing visibility of lesbian and gay life with

12 dread. Hostility to homosexuals sometimes was motivated by an underlying uneasiness about the

13 dramatic changes underway in gender roles at the turn of the last century. In this era – indeed

14 until 1973 – homosexuality was classified as a disease, defect, or disorder. Conservative

15 physicians initially argued that the homosexual (or “sexual invert”) was characterized as much by

16 his or her violation of conventional gender roles as by specifically sexual interests. At a time

17 when many doctors argued that women should be barred from most jobs because employment

18 would interfere with their ability to bear children, numerous doctors identified suffragists, women

19 entering the professions, and other women challenging the limits placed on their sex as victims of

20 a medical disorder. Thus, doctors explained that “the female possessed of masculine ideas of

21 independence” was a “degenerate” and that “a decided taste and tolerance for cigars, * * * [the]

22 dislike and incapacity for needlework * * * and some capacity for athletics” were all signs of

23 female “sexual inversion.” Similarly, another doctor thought it significant that a male “pervert”

24 “never smoked and never married; [and] was entirely averse to outdoor games.”

25

28. Such views about gender roles lost their credibility once public opinion had come

26 to accept significant changes in women’s roles in the workplace and political sphere, but doctors

27 continued for several more decades to identify homosexuality per se as a “disease,” “mental

28 defect,” “disorder,” or “degeneration.” For generations, such hostile medical pronouncements

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1 provided a powerful source of legitimation to anti-homosexual sentiment, just as medical science

2 previously had legitimized widely held (and subsequently discarded) beliefs about male

3 superiority and white racial superiority. The medical profession’s classification of homosexuality

4 as a defect or disorder also helped spur and legitimate anti-gay law enforcement activity

5 throughout the country.

6

29. Religiously-inspired hostility to homosexuality also inspired an escalation in anti-

7 gay policing. In the late nineteenth century, native-born Protestants organized numerous “anti-

8 vice” societies to suppress what they regarded as the sexual immorality and social disorder of the

9 nation’s burgeoning Catholic and Jewish immigrant neighborhoods. Although these

10 organizations focused on female prostitution and what they regarded as the weakening of moral

11 strictures governing relations between men and women, they also opposed the growing visibility

12 of homosexuality, which they regarded as a particularly egregious sign of the loosening of social

13 controls on sexual expression under urban conditions. They encouraged the police to step up

14 harassment of gay life as one more part of their campaigns to shut down dance halls and movie

15 theaters, prohibit the consumption of alcohol and the use of contraceptives, dissuade restaurants

16 from serving an interracial mix of customers, and otherwise impose their vision of the proper

17 social order and sexual morality. In New York City in the 1910s and 1920s, for instance, the

18 Society for the Suppression of Vice (also known as the Comstock Society) worked closely with

19 the police to arrest several hundred men for homosexual conduct, and also participated in a raid

20 on a lesbian-run café and encouraged the deportation of the café’s owner. In Massachusetts, the

21 Watch and Ward Society, established as the New England Society for the Suppression of Vice,

22 conducted surveillance on virtually all the popular gay bars and gathering places of the time.

23

30. As a result of the pressure from Protestant moral reform organizations, municipal

24 police forces began using misdemeanor charges, such as disorderly conduct, vagrancy, lewdness,

25 loitering, and so forth to harass homosexuals. These state misdemeanor or municipal offense

26 laws, which carried fewer procedural protections than felony sodomy charges, allowed further

27 harassment of individuals engaged in same-sex intimacy. In some cases, state officials tailored

28 these laws to strengthen the legal regulation of homosexuals. For example, in 1923, the New

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1 York State legislature specified for the first time that a man’s “frequent[ing] or loiter[ing] about

2 any public place soliciting men for the purpose of committing a crime against nature or other

3 lewdness” was a form of disorderly conduct. Many more men were arrested and prosecuted

4 under this misdemeanor charge than for sodomy. Between 1923 and 1966, when Mayor John

5 Lindsay ordered the police to stop using entrapment to secure arrests of gay men, there were more

6 than 50,000 arrests on this charge in New York City alone.

7

31. The social marginalization of gay men and lesbians gave both the police and the

8 public even broader informal authority to harass them. The threat of violence and verbal

9 harassment deterred many gay people from doing anything that might reveal their homosexuality

10 in public. Gay people knew that anyone discovered to be homosexual risked the loss of

11 livelihood and social respect, so most gay people were careful to lead a double life, hiding their

12 homosexuality from their heterosexual employers and other associates.

13

B. Censorship

14

32. The growing visibility of lesbian and gay life in the early twentieth century

15 precipitated censorship campaigns designed to curtail gay people’s freedom of speech and the

16 freedom of all Americans to discuss gay issues.

17

33. The earliest gay activists fell victim to such campaigns. In 1924, when the police

18 learned of the country’s earliest known gay political group, which had been established by a

19 postal worker in Chicago, they raided his home and seized his group’s files and membership list.

20 After the raid, the group ceased publication of its short-lived magazine, Friendship and Freedom.

21 In the 1910s and 1920s, a handful of plays included lesbian and gay characters or addressed

22 homosexual themes. But in 1927, after “The Captive,” a serious drama exploring lesbianism,

23 opened on Broadway to critical acclaim, New York State passed a “padlock law” that threatened

24 to shut down for a year any theater that staged a play with lesbian or gay characters. Given

25 Broadway’s national importance as a staging ground for new plays, this law effectively censored

26 American theater for a generation.

27

34. Theater censorship occurred in other cities in addition to New York. In the early

28 twentieth century, Boston had a particularly strict culture of “moral purity” censorship, and the

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1 phrase “Banned in Boston” was familiar to people throughout the country. In 1935, for instance,

2 Boston Mayor Frederick W. Mansfield banned Lillian Hellman’s “The Children’s Hour,” a play

3 with lesbian themes. Mansfield explained his decision to the press by asserting that the play

4 “showed moral perversion, the unnatural appetite of two women for each other.”

5

35. Such censorship had even wider-reaching effects when it spread to the movies. A

6 censorship movement led by religious leaders threatened the Hollywood studios with mass

7 boycotts and restrictive federal legislation if they did not begin censoring their films. Seeking to

8 avoid federal legislation, the studios established a production code (popularly known as “the Hays

9 Code”) that from 1934 on prohibited the inclusion of gay or lesbian characters, discussion of

10 homosexual issues, or even the “inference” of “sex perversion” in Hollywood films. This

11 censorship code remained in effect for some thirty years and effectively prohibited discussion of

12 homosexuality in a powerful communications medium. This censorship stymied and delayed

13 democratic debate about homosexuality for more than a generation.

14

C. The Great Depression and the Curtailment of Gay People’s Freedom of

15

Association

16

36. In the early years of the Great Depression, restrictions on gay life intensified. By

17 depriving millions of men of their role as breadwinners, the Depression transformed already-

18 existing anxiety over gender roles into a crisis in gender and family relations. Federal, state, and

19 local governments responded to this perceived crisis with policies that directly affected women

20 and gay people. New Deal public works projects, for instance, which offered jobs only to male

21 heads of households, were designed in part to restore men’s status in their families and larger

22 society, even when this meant limiting women’s economic opportunities.

23

37. The apparent fragility of the family and gender arrangements made the visibility of

24 gay life seem more threatening to many people, especially given the long-standing representation

25 of gay men and lesbians as gender deviants. After a generation in which gay life had been

26 relatively visible and integrated into urban public life, restrictions on gay life increased. Gay

27 people were forced into hiding by new laws that pushed gay people out of restaurants and bars, as

28 well as off the stage and silver screen.

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1

38. New regulations curtailed gay people’s freedom of association. In New York

2 State, for instance, the State Liquor Authority, established after the repeal of Prohibition in 1933,

3 issued regulations prohibiting bars, restaurants, cabarets, and other establishments with liquor

4 licenses from employing or serving homosexuals or even allowing them to congregate on their

5 premises. The Authority’s rationale was that the mere presence of homosexuals made an

6 establishment “disorderly,” and when the courts rejected that argument, the Authority began

7 using evidence of unconventional gender behavior or homosexual solicitation gathered by

8 plainclothes investigators to provide proof of a bar’s disorderly character. Hundreds of bars were

9 closed for this reason in the next thirty years in New York City alone.

10

39. Similar regulations were introduced around the country in subsequent years. In

11 California in the 1950s, notes historian Nan Alamilla Boyd, the Alcoholic Beverage Control

12 Board “collapsed the difference between homosexual status (a state of being) and conduct

13 (behavior) and suggested that any behavior that signified homosexual status could be construed as

14 an illegal act. Simple acts such as random touching, mannish attire (in the case of lesbians), limp

15 wrists, high-pitched voices, and/or tight clothing (in the case of gay men) became evidence of a

16 bar’s dubious character” and grounds for closing it.

17 IV. Modern American History: World War II

18

40. Changes in the policies of the Armed Forces of the United States during the

19 Second World War both reflected and expanded the government’s growing campaign of

20 classifying and discriminating against gay citizens. The military had long made sodomy a

21 criminal offense (and, indeed, it continues to do so). But the Second World War marked the first

22 time the military moved beyond criminalizing homosexual conduct to develop policies that

23 systematically endeavored to exclude personnel on the basis of their identity as homosexuals. All

24 of the branches of the armed forces put in place screening mechanisms designed to ferret out

25 homosexuals during the induction process. Thousands of men and women were kept from

26 serving their country, and often faced public opprobrium as a result. Notwithstanding the new

27 prohibition, many gay men and lesbians served in the armed forces in the Second World War, but

28 they had to be careful to whom they disclosed their sexual orientation.

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1

41. Across the country, notwithstanding legal restrictions, the number of lesbian and

2 gay bars and other meeting places increased during the war years. Military authorities responded

3 to the growth in the number of gay meeting places by collaborating with civil authorities to close

4 them or at least keep servicemen from visiting them. The Army and the Navy created a joint

5 Disciplinary Control Board that worked together with state liquor control agents and municipal

6 police forces to identify and police bars and night clubs, including almost one hundred in San

7 Francisco alone, with the intent of harassing and suspending the licenses of those that served a

8 gay clientele. Military and civilian police also cooperated in anti-vice raids against gay bars and

9 other meeting places. Servicemen who were caught in these raids risked being discharged, and

10 several thousand patriotic Americans who honorably served to defend their country were not

11 honorably discharged solely because of their gay or lesbian identity.

12

42. Following the war, the Veterans Administration denied GI Bill benefits to soldiers

13 who had received undesirable discharges. Eventually, most other groups of soldiers with

14 undesirable discharges had their benefits restored, but the Veterans Administration steadfastly

15 refused to restore them to homosexuals. This meant that gay veterans – members of the “Greatest

16 Generation” – who had risked their lives for their country before being discharged were denied

17 the educational, housing, and readjustment allowances provided to millions of their peers.

18 V. Modern American History: Post-WWII Period

19

A. Government Policies in the McCarthy Era

20

43. Even the stepped-up policing of gay life in the 1930s and 1940s did not equal the

21 scale of discrimination faced by gay men and lesbians in the generation following the Second

22 World War. The persecution of gay men and lesbians dramatically increased at every level of

23 government after the war.

24

44. In 1950, following Senator Joseph McCarthy’s denunciation of the employment of

25 gay persons in the State Department, the Senate conducted a special investigation into “the

26 employment of homosexuals and other sex perverts in government.” The Senate Committee

27 recommended excluding gay men and lesbians from all government service, civilian as well as

28 military. To support this recommendation, the Committee argued that homosexual acts violated

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1 the law, and it gave its imprimatur to the prejudice that “those who engage in overt acts of

2 perversion lack the emotional stability of normal persons” and that homosexuals “constitute

3 security risks.”

4

45. The Committee also portrayed homosexuals as predators: “[T]he presence of a sex

5 pervert in a Government agency tends to have a corrosive influence on his fellow employees.

6 These perverts will frequently attempt to entice normal individuals to engage in perverted

7 practices. This is particularly true in the case of young and impressionable people who might

8 come under the influence of a pervert. Government officials have the responsibility of keeping

9 this type of corrosive influence out of the agencies under their control. . . . One homosexual can

10 pollute a Government office.”

11

46. The Senate investigation and report were only one part of a massive anti-

12 homosexual campaign launched by the federal government after the war. The Senate Committee

13 reported that “[a] spot check of the records of the Civil Service Commission indicates that

14 between January 1, 1947, and August 1, 1950, approximately 1,700 applicants for Federal

15 positions were denied employment because they had a record of homosexuality or other sex

16 perversion.” In 1953, President Eisenhower issued an executive order requiring the discharge of

17 homosexual employees from federal employment, civilian or military. Thousands of men and

18 women were discharged or forced to resign from civilian and military positions because they

19 were suspected of being gay or lesbian. At the height of the McCarthy era, the U.S. State

20 Department discharged more homosexuals than communists. The government’s purge of its gay

21 employees prompted the founding of some of the earliest gay rights organizations. Frank

22 Kameny, for one, founded the first gay rights group in Washington, D.C. after he was dismissed

23 from his job as a government astronomer for being homosexual in 1957.

24

47. President Eisenhower’s executive order prohibiting federal employment for

25 homosexuals also required defense contractors and other private corporations with federal

26 contracts to ferret out and discharge their homosexual employees. Many other private employers

27 without federal contracts adopted the federal government’s policy by refusing to hire gay people.

28 Furthermore, the FBI initiated a widespread system of surveillance to enforce the executive order.

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1 As the historian John D’Emilio has noted, “The FBI sought out friendly vice squad officers who

2 supplied arrest records on morals charges, regardless of whether convictions had ensued.

3 Regional FBI officers gathered data on gay bars, compiled lists of other places frequented by

4 homosexuals, and clipped press articles that provided information about the gay world. . . .

5 Federal investigators engaged in more than fact-finding; they also exhibited considerable zeal in

6 using information they collected.”

7

48. Two years after the Senate Committee recommended that homosexuals be purged

8 from government employment, Congress signaled its conviction that homosexuals had no place in

9 American society in the most palpable way possible: by denying them entry into the country. In

10 1952, Congress prohibited homosexuals (whom it called “psychopaths”) from entering the

11 country, much as it previously had prohibited immigration from Asia and curtailed the

12 immigration of Jews and Catholics from eastern and southern Europe. In the case of

13 homosexuals, the prohibition extended beyond people seeking long-term residency or citizenship;

14 a generation of foreign visitors applying for mere tourist visas had to sign statements swearing

15 they were not homosexual before they could make even the briefest trip to the United States.

16

49. Many state and local governments followed the federal government’s lead in

17 seeking to ferret out and discharge their homosexual employees. As a result of these official

18 policies, countless state employees, teachers, hospital workers, and others lost their jobs.

19 Beginning in 1958, for instance, the Florida Legislative Investigation Committee, which had been

20 established by the legislature in 1956 to investigate and discredit civil rights activists, turned its

21 attention to homosexuals working in the state’s universities and public schools. Its initial

22 investigation of the University of Florida resulted in the dismissal of fourteen faculty and staff

23 members, and in the next five years it interrogated some 320 suspected gay men and lesbians. It

24 “pressured countless others into relinquishing their teaching positions, and had many students

25 quietly removed from state universities.” Its 1959 report to the legislature called the extent of

26 homosexual activity in the state’s school system “absolutely appalling.” In addition, in a well-

27 publicized 1949 case in Massachusetts, Dr. Miriam Van Waters, long-time superintendent of the

28 Women’s Reformatory at Framingham, was dismissed by the Commissioner of Corrections

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1 because she had either not known or had known and had not prevented “an unwholesome

2 relationship” that “existed between inmates of the Reformatory,” which had “resulted in

3 ‘crushes’, ‘courtships’, and homosexual practises [sic] among the inmates.” She was then forced

4 to defend her policies in public hearings held by a Massachusetts house committee over several

5 months.

6

50. During this period, both federal and local agencies sought to curtail gay people’s

7 freedom of speech and the freedom of all people to discuss homosexuality. In 1954, postal

8 officials in Los Angeles banned an issue of the first gay political magazine, ONE, from the mails,

9 a ban overturned by the Supreme Court in 1958. In some cities the police continued to shut down

10 newsstands that dared to carry it. In 1957, San Francisco officials arrested Lawrence Ferlinghetti

11 and Shig Murao for publishing and selling “Howl,” a poem by Allen Ginsberg that openly

12 proclaimed his homosexuality.

13

51. Censorship, government-sanctioned discrimination, and the fear of both made it

14 difficult for gay people to organize and speak out on their own behalf. Given the severity of anti-

15 gay policing, for instance, the Mattachine Society, the most significant gay rights organization in

16 the 1950s, repeatedly had to reassure its anxious members that the police would not seize its

17 membership list. In Denver in 1959, a few weeks after Mattachine held its first press conference

18 during a national convention, the police raided the homes of three of its Denver organizers; one

19 lost his job and spent sixty days in jail.

20

B. The Demonization of Homosexuals

21

52. The official harassment of homosexuals received further legitimization from a

22 series of press and police campaigns in the 1940s and 1950s that fomented demonic stereotypes

23 of homosexuals as child molesters out to “recruit” the young into their way of life. In response to

24 a series of local panics over sex crimes against women and children, in which homosexuals were

25 almost never identified as the culprits, numerous local newspapers and national magazines

26 claimed that children faced a growing threat from homosexuals. The press warned that, in

27 breaking with social convention to the extent necessary to engage in homosexual behavior, a man

28 had demonstrated the refusal to adjust to social norms that was the hallmark of the psychopath.

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1 In 1950, Coronet, a popular national magazine, asserted: “Once a man assumes the role of

2 homosexual, he often throws off all moral restraints. . . . Some male sex deviants do not stop with

3 infecting their often-innocent partners: they descend through perversions to other forms of

4 depravity, such as drug addiction, burglary, sadism, and even murder.”

5

53. The demonization of homosexuals by the press was reinforced by the statements of

6 public officials. A Special Assistant Attorney General of California claimed in 1949 that “[t]he

7 sex pervert, in his more innocuous form, is too frequently regarded as merely a queer individual

8 who never hurts anyone but himself. All too often we lose sight of the fact that the homosexual is

9 an inveterate seducer of the young of both sexes, and is ever seeking for younger victims.”

10 Detroit’s prosecuting attorney demanded the authority to arrest, examine, and possibly confine

11 indefinitely “anyone who exhibited abnormal sexual behavior, whether or not dangerous.” In

12 1957, the Hartford Courant reported on comments by a Connecticut judge at a criminal

13 sentencing. The judge endorsed jail terms for homosexuals because his “observation” was that

14 homosexuality “ha[d] spread much too far.”

15

54. Such press campaigns and official statements created fearsome new stereotypes of

16 homosexuals as child molesters, which continue to incite public fears about gay teachers and

17 parents as well as other gay people who come into contact with children. Between the late 1930s

18 and late 1950s, public hysteria incited by such press campaigns prompted more than half the state

19 legislatures to enact laws allowing the police to force persons convicted of certain sexual

20 offenses—or, in some states, merely suspected of being “sexual deviants”—to undergo

21 psychiatric examinations. These examinations could result in indeterminate civil confinements

22 for individuals deemed in need of a “cure” for their homosexual “pathology.”

23

C. Another Escalation of Anti-gay Policing

24

55. During the postwar era, bars became an especially important meeting place for

25 lesbians and gay men because they were often the only public spaces in which people dared to be

26 openly gay. Given their growing importance to gay people as a social center and the growing

27 pressure on the police to enforce regulations prohibiting bars from serving homosexuals, gay bars

28 became an important battleground in the postwar years. Despite the prevailing popular animosity

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1 toward homosexuals, state courts in New York and California issued rulings that curtailed the

2 right of state liquor authorities and the police to discriminate against gay bar patrons. Official

3 antipathy to homosexuals was so strong, however, that police officials circumvented or simply

4 disregarded these judicial decisions.

5

56. This sharp escalation in the policing of gay life after the Second World War

6 occurred throughout the country. In 1955, for example, the government of Boise, Idaho launched

7 a fifteen-month investigation of gay men in town, interrogating fourteen hundred persons and

8 pressuring men known to be gay to reveal the names of other gay men. Police departments from

9 Seattle and Dallas to New Orleans and Baltimore stepped up their raids on bars and private

10 parties attended by gay and lesbian persons, and made thousands of arrests for “disorderly

11 conduct.” By 1950, Philadelphia had a six-man “morals squad” arresting more gay men than the

12 courts knew how to handle, some 200 a month. In the District of Columbia, there were more than

13 a thousand arrests every year. In 1965, the Boston City Council’s Committee on Urban Renewal

14 debated whether to bulldoze several downtown gay bars. A proponent of the effort, City

15 Councilor Frederick Langone, gave a speech at the meeting calling for the destruction of “these

16 incubators of homosexuality and indecency and a Bohemian way of life,” and insisting that “[w]e

17 must uproot these joints so innocent kids won’t be contaminated.” Many gay bars were razed in

18 the “revitalization” that followed. In 1969, a Councilman in Rocky Hill, Connecticut called for a

19 nightclub frequented by homosexuals (Alice’s Joker Club) to be closed as a “public nuisance”

20 because it was a “threat to the morals” of the town’s citizens. From 1933 until the mid 1960s,

21 hundreds of bars that tolerated gay customers were closed in New York City alone. Some bars in

22 New York and Los Angeles posted signs telling potential gay customers: “If You Are Gay, Please

23 Stay Away” or, more directly, “We Do Not Serve Homosexuals.”

24 VI. The Gay Rights Movement and its Opponents in the 1970s and 1980s

25

A. Early Successes of the Gay and Lesbian Rights Movement

26

57. The dramatic escalation in policing and suppression in the post-war years failed to

27 eradicate gay life. In larger cities, lesbians and gay men covertly patronized bars and restaurants,

28 which they turned into informal meeting places, took over remote sections of public beaches, and

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1 held dances and parties. In many smaller towns, gay life took shape unnoticed in church choirs,

2 amateur theaters, and women’s softball leagues, and was sustained by closely knit social circles.

3

58. Nonetheless, most gay men and lesbians responded to the escalation in policing

4 after the Second World War by keeping their homosexuality carefully hidden from non-gay

5 people. They developed elaborate verbal codes that allowed them to communicate with one

6 another while remaining invisible to hostile outsiders. The word “gay” is a good example of this:

7 before the 1970s few heterosexuals realized gay people had given it a distinctly homosexual

8 meaning. But the very success of such subterfuges in concealing gay life made it difficult for gay

9 people to find one another in the 1950s, and it severely limited the capacity of gay people to

10 organize on their own behalf.

11

59. The earliest gay rights organizations, the Mattachine Society, ONE, and the

12 Daughters of Bilitis, were founded in the early 1950s at the height of the demonization of

13 homosexuals as dangerous, irrational, and unstable pariahs who threatened the nation’s children

14 as well as national security. This initial generation of activists worked to meet and educate

15 potential allies among sociologists, psychologists, criminologists, and other professionals who

16 had the credibility to speak on homosexuality that was denied to homosexuals themselves.

17

60. Gay rights organizations began to influence public policy in the mid-1960s,

18 although the pace of change varied enormously across the country. The New York Mattachine

19 Society’s success in 1966 in persuading Mayor John Lindsay to end the widespread police use of

20 entrapment had a profound effect on gay male New Yorkers, who for the first time in decades did

21 not have to worry that the men who approached them in bars and elsewhere were undercover

22 policemen. New York and California state court rulings finally curtailed the policing of gay bars

23 and other meeting places in those states in the 1960s, but in some other parts of the country the

24 police continued to raid gay bars well into the 1970s and 1980s. The growing divergence in the

25 treatment of gay people in different parts of the country prompted a growing number of gay

26 people to migrate from hostile areas to New York, Boston, San Francisco, Los Angeles, Chicago,

27 and other more tolerant cities and regions. This mass migration, in turn, affected the political and

28

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1 cultural climate of those cities and regions, making them more likely to enact gay rights

2 legislation and similar policies.

3

61. Major institutions that once helped legitimize anti-gay attitudes also began to

4 change their positions. Medical writers and mental health professionals whose stigmatization of

5 homosexuality as a disease or disorder had been used to justify discrimination for decades were

6 among the first to change their views. In 1973, the American Psychiatric Association voted to

7 remove homosexuality from its list of mental disorders. The American Psychological Association

8 soon followed suit. However, the American Psychiatric Association’s decision was fiercely

9 opposed by prominent members of the association such as Charles Socarides and Irving Bieber.

10 They and other medical professionals who claimed homosexuality was a treatable psychological

11 disorder continued to receive considerable attention.

12

62. Censorship of gay images and speech declined. By the early 1960s, competition

13 from television led the Hollywood studios to reorganize their nearly thirty-year-old censorship

14 code, enabling the studios to make films for adult viewers which addressed “serious themes” such

15 as homosexuality. These themes remained off-limits for television. The studios initially still

16 included very few gay characters in their features, and the television networks included virtually

17 none, but ending formal censorship opened a door that resulted in significant cultural changes in

18 later years.

19

63. A small but growing number of municipalities enacted legislation protecting

20 people from certain forms of discrimination on the basis of their sexual orientation. In 1972, East

21 Lansing, Michigan, home to Michigan State University, became the first town to do so. Within

22 five years, another twenty-seven communities passed such legislation, more than half of them

23 university towns such as Ann Arbor, Austin, Berkeley, and Madison. They were joined by a

24 handful of larger cities such as San Francisco, Minneapolis, Seattle, and Detroit. During this

25 same period, however, a number of states enacted new legislation that criminalized homosexual

26 sodomy, even as they decriminalized heterosexual sodomy.

27

64. Attitudes toward homosexuals and homosexuality in some religious denominations

28 also began to change. Since the 1970s, many mainline Protestant denominations have issued

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1 official statements condemning legal discrimination against homosexuals and affirming that

2 homosexuals ought to enjoy equal protection under criminal and civil law. Several of these

3 groups descended from the historically influential denominations whose religious authority had

4 been invoked to justify colonial statutes against sodomy. The Lutheran Church in America, the

5 Unitarian Universalist Association, the United Methodist Church, the United Church of Christ,

6 the Protestant Episcopal Church, the Disciples of Christ, and the United Presbyterian Church in

7 the U.S.A. all issued statements in support of civil rights for gay men and lesbians by 1980.

8

65. Those seven denominations, however, account for only 10.3 percent of the

9 American population. Many more Americans belong to faith traditions that remain strongly

10 opposed to gay civil rights, including 26.3 percent affiliated with historically white evangelical

11 Protestant churches and 23.9 percent who are Catholics. Leading clergy and laypeople from

12 those churches have played a major role in opposing gay rights measures across the country.

13

B. Anti-Gay Discrimination in the 1970s and 1980s

14

66. Gay men and lesbians continued to suffer discrimination at the hands of

15 government officials in the 1970s and 1980s. For example, police continued to raid gay bars in

16 some cities. In 1970, the Connecticut State Motor Vehicle Department refused to renew the

17 drivers license of a man on the grounds that he was “an admitted homosexual and that his

18 homosexuality makes him an improper person to hold an operator’s license.”

19

67. Beginning in the late 1970s, the initial success of the gay movement in securing

20 local gay rights legislation, as well as the increasing visibility of gay people in the media,

21 provoked a vigorous, negative reaction. Anti-gay rights advocates drew on pernicious stereotypes

22 developed in previous decades to argue that enacting gay rights laws, permitting gay people to

23 teach, and even simply allowing gay characters to appear on television sitcoms threatened the

24 security of children and the stability of the family.

25

68. The anti-gay rights campaign of this era was effectively launched in 1977, when

26 Anita Bryant, a prominent Baptist singer and the spokeswoman for the Florida citrus growers, led

27 a campaign to “Save Our Children” from newly enacted civil rights protections for gay men and

28 lesbians in Dade County, Florida. Her success in persuading a decisive majority of Miami voters

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1 to vote against the ordinance depended heavily on her use of the still powerful postwar images of

2 homosexuals as child molesters. Her organization published a full-page advertisement the day

3 before the vote warning that the “other side of the homosexual coin is a hair-raising pattern of

4 recruitment and outright seductions and molestation.” Her victory in Miami prompted groups in

5 other cities to take up the cause, and in the next three years, laws extending civil rights

6 protections to gay men and lesbians were repealed in more than a half-dozen bitterly fought

7 referenda stretching from St. Paul, Minnesota to Eugene, Oregon. Gay rights advocates managed

8 to defeat such referenda only in two elections, in November 1978, when Seattle voted to preserve

9 its antidiscrimination ordinance and when California rejected the Briggs Initiative. The Briggs

10 Initiative was a proposal so onerous it would have prohibited public school teachers, gay or

11 straight, from saying anything that could be construed as “advocating homosexuality.”

12

69. The Save Our Children campaign had other far reaching effects. The day after the

13 Dade County gay rights ordinance was repealed, the governor of Florida signed into law a ban on

14 adoption by lesbians and gay men, the first such statewide prohibition. Thousands of children

15 who might otherwise have had loving parents were thus denied the stability of family life.

16 Similarly, in 1985, Massachusetts Governor Michael Dukakis removed two boys from their foster

17 care placement with a gay male couple and implemented a policy of preferred placement in

18 “traditional family settings.” While Massachusetts’ ban was reversed in 1990 as a result of

19 litigation, the Florida ban remained in effect until 2010.

20

70. Across the country, the unfounded fear that homosexuals posed a threat to children

21 itself threatened some children: those already being raised by lesbians and gay men. In the 1970s,

22 most children being raised by lesbian or gay parents had been born before their parents came out

23 as gay. When a parent came out, any dispute over child custody that had to be resolved in court

24 was likely to be heavily influenced by stereotypes and prejudices. A growing number of such

25 cases reached the courts in the 1970s and 1980s, and in case after case the courts took the custody

26 of children away from a mother or father whose estranged husband or wife raised the parent’s

27 lesbian or gay identity. Some courts confronting early disputes of this nature articulated a “per

28

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1 se” rule against custody and visitation claims made by gay and lesbian parents, holding that

2 homosexuality was inherently inconsistent with parenthood as a matter of law.

3

71. The long-standing association of homosexuals with disease was reinforced in the

4 1980s by the media’s initial sensationalist coverage of AIDS, which frequently depicted

5 homosexuals as bearers of a deadly disease threatening others. Fear of contagion prompted a new

6 wave of discrimination against gay people in medical care, housing, and employment. Media

7 coverage and the government’s slow response to the disease also reflected and reinforced the

8 enduring conviction that homosexuals stood outside the moral boundaries of the nation. Even

9 after the name AIDS (Acquired Immune Deficiency Syndrome) replaced the moniker GRID

10 (Gay-Related Immune Deficiency), media reports initially minimized the crisis by reassuring

11 Americans that the “general public” was not at risk, since the disease only affected homosexuals

12 and a handful of other groups, as if gay people were not part of the “general public.”

13

72. The media coverage of AIDS and the numerous campaigns against local gay rights

14 laws had a dramatic effect on public opinion. In 1987, six years after the AIDS crisis unleashed a

15 new wave of fear of homosexuals, public disapproval of homosexuality reached its peak. Polling

16 data showed virtually no change through the 1970s, but the number of people who declared that

17 homosexual relations were always wrong climbed from 73 percent in 1980 to 78 percent in 1987.

18 In the 1980s, gay rights activists secured the enactment of gay rights ordinances in an additional

19 forty cities, counties, and suburbs, including Boston, New York, Chicago, and Atlanta, bringing

20 the national total to eighty. But these victories often were more difficult to achieve than they had

21 been in the 1970s. In New York City, for example, the law passed the city council only after

22 more than a decade of struggle.

23

73. National religiously-inspired organizations formed in the 1970s and 1980s, such as

24 the Moral Majority, Focus on the Family, Family Research Council, and Traditional Values

25 Coalition, provided national leadership and coordination to the movement against gay rights and

26 disseminated campaign materials, political strategies, and financial resources to local groups

27 fighting gay rights ordinances.

28

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1 VII. The Persistence of Anti-Gay Discrimination from the 1990s to the Present

2

A. Legal Inequality in State Law

3

74. The spread of AIDS and the escalation of debate over gay rights at the local level

4 fueled a growing polarization of the nation over homosexuality in the 1980s and especially the

5 1990s. By the end of the 1980s, even cities and states that had managed to pass gay rights laws

6 found those laws under attack from an increasingly well-organized and well-funded opposition.

7 Beginning in 1988, and reaching a crescendo from 1992 to 1994, groups in Colorado, Oregon,

8 Maine, and six other states used anti-gay referenda and initiatives to challenge gay rights laws,

9 and built local anti-gay rights organizations. In the twenty-five years after Anita Bryant’s

10 campaign in Florida, anti-gay activists introduced and campaigned for more than sixty anti-gay

11 rights referenda around the country. Nationwide, gay rights supporters lost almost three-quarters

12 of these contests. In Oregon alone, there were sixteen local anti-gay initiatives in 1993 and

13 another eleven in 1994. Oregon’s gay rights supporters lost all but one.

14

75. Following Anita Bryant’s lead, anti-gay rights activists frequently fomented voter

15 fear of gay people by reviving demonic stereotypes of homosexuals as perverts who threatened

16 the nation’s children and moral character. Two videos that repeatedly were screened in churches

17 and on cable television, “The Gay Agenda” and “Gay Rights, Special Rights,” juxtaposed

18 discussions of pedophilia with images of gay teachers and gay parents marching with their

19 children in Gay Pride parades. With little subterfuge, the videos depicted homosexuals as child

20 molesters. This message was reinforced by mass mailings and door-to-door distribution of anti-

21 gay pamphlets, which fostered a climate of hostility and fear during the referenda.

22

76. In 1992, voters in Colorado passed Amendment Two, which amended the state

23 constitution to prohibit any municipality or unit of the government from enacting anti-gay

24 discrimination ordinances or policies. This amendment repealed the ordinances already enacted

25 by Denver, Boulder, and Aspen. Moreover, it removed from the political arena any future effort

26 to secure anti-discrimination legislation for gay people. In the face of public antipathy to gay

27 people, represented by the success of this and other referenda overturning non-discrimination

28 laws, several legal groups filed a lawsuit, Romer v. Evans, challenging the constitutionality of

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1 such constitutional amendments. Once again, the courts protected the rights of the minority

2 against the prejudice of the majority. In 1996, the Supreme Court overturned this state

3 constitutional amendment because it withdrew legal protection against discrimination for gay

4 men, lesbians, and bisexuals, but no others.

5

77. Although a number of states now have extended basic anti-discrimination

6 protections to gay men and lesbians, in twenty-nine states, there is no statutory barrier to firing,

7 refusing to hire, or demoting a person in private sector employment solely on the basis of their

8 identity as a gay man or lesbian. In approximately twenty states, there is no statutory or

9 administrative barrier to such discrimination even in state government employment. Similarly,

10 gay men and lesbians remain without statutory protection from discrimination in housing in thirty

11 states. And, despite the critical role played by harassment of gay and lesbian meeting places in

12 enforcing discrimination toward them throughout the twentieth century, gay and lesbian people in

13 twenty-nine states have no statutory protection from discrimination in public accommodations.

14

B. Legal Inequality in Federal Law

15

78. At the national level, employment discrimination against gay men and lesbians by

16 federal agencies remained permissible until the late 1990s. Although the outright ban on hiring

17 gay federal employees was lifted in 1975, federal agencies were free to discriminate against gay

18 men and lesbians in hiring and employment decisions until former President Clinton issued a

19 first-of-its-kind executive order forbidding such hiring discrimination in 1998.

20

79. In 1992, President Bill Clinton’s proposal to end the armed forces’ policy banning

21 lesbians and gay men from serving in the military sparked a firestorm in the first months of his

22 presidency and revealed how deeply divided the nation remained. The public outcry against his

23 plan (calls to Congress ran a hundred to one against lifting the ban) had been stoked by years of

24 local anti-gay organizing. Opposition to the new policy by both the Pentagon leadership and the

25 public led Congress and President Clinton to enact a new law known as “Don’t Ask, Don’t Tell,”

26 which allowed for the discharge of gay and lesbian soldiers if they acknowledged their sexual

27 orientation under any circumstances, even in private counseling. Discharge of gay men and

28 lesbians from the military continued after “Don’t Ask, Don’t Tell” became law. According to the

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1 Servicemembers Legal Defense Network, an organization dedicated to assisting military

2 personnel affected by “Don’t Ask, Don’t Tell,” “more than 14,000 service members have been

3 have been fired under the law since 1993.”

4

80. The repeal of “Don’t Ask, Don’t Tell” became effective in 2011. Although the

5 repeal was an important advance for gay men and lesbians, it did not restore the careers of the

6 thousands of service members who had been discharged under the policy. Nor does it protect gay

7 men and lesbians from the significant discrimination that they continue to face in other domains.

8 After years of effort, gay and lesbian advocates and their allies still have not been able to enact

9 any federal legislation that specifically prohibits discrimination in schools, employment, housing,

10 and public accommodations on the basis of sexual orientation. The Employment Non-

11 Discrimination Act, which would extend express employment protections on the basis of sexual

12 orientation, has been introduced regularly since 1994 (and earlier versions as far back as the

13 1970s) and has never passed both houses of Congress.

14

81. Government-sanctioned discrimination against gay men and lesbians still exists

15 in federal immigration law. Federal law prohibits gay and lesbian Americans from sponsoring

16 their same-sex spouses or registered partners from other countries for immigration benefits.

17

C. Discrimination in Adoption, Custody, and Parenting

18

82. In the 1990s, lesbian mothers and gay fathers continued to risk their parenting

19 rights when their former different-sex spouses used their sexual orientation to try to deny them

20 custody or visitation rights in divorces. By the mid-1990s, courts in most states followed rules

21 that required individualized assessment of a parent’s fitness. But as Julie Shapiro’s 1996 study of

22 custody cases around the country demonstrated, many courts continued to infuse those

23 individualized assessments with their own prejudice against lesbians and gay men. As she

24 discovered, courts were especially disapproving of lesbians and gay men who were honest about

25 their sexual orientation with their children. In a widely publicized case, a Virginia trial court in

26 1993 granted a grandmother’s petition to take Sharon Bottoms’ two-year-old son away from her

27 because, as the trial court judge explained, her lesbian “conduct is illegal . . . a Class 6 felony in

28 the Commonwealth of Virginia.” He went on to declare “that it is the opinion of this Court that

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1 her conduct is immoral” and “renders her an unfit parent.” Virginia’s Supreme Court upheld the

2 trial court’s decision terminating Sharon’s parental rights despite the presumption favoring her as

3 a natural parent. In doing so, it relied on a wider range of evidence, including the finding that

4 Bottoms’ lesbianism would subject her child to social condemnation and thus disturb the child’s

5 relationships with peers and the community at large. Some courts had used similar reasoning to

6 remove children from the homes of divorced white mothers who had married or lived with black

7 men, a practice ruled unconstitutional by the Supreme Court in 1984. In that case, Palmore v.

8 Sidoti, Chief Justice Warren Burger ruled that “private biases may be outside the reach of the law,

9 but the law cannot directly, or indirectly, give them effect.” 466 U.S. 429, 433 (1984). But

10 courts in many states continued to give legal effect to the private bias they assumed existed

11 against lesbian and gay parents by preferring heterosexual parents over gay parents, without

12 regard to other factors bearing on the child’s best interests.

13

83. Gay and lesbian parents continue to be forced by some courts to choose between

14 hiding their gay identities and losing parental rights. As one Texas attorney commented in 1988,

15 “unless [a mother] ended her open lesbian relationship I would have little chance of winning a

16 custody trial.” According to Clifford J. Rosky, in 2004, after ordering a gay father not to expose

17 his child to his “gay lover(s) and/or gay lifestyle,” a Tennessee trial court sentenced the father to

18 two days in jail for coming out to the child.

19

84. State and popular efforts that began in the 1970s to ban lesbians and gay men from

20 adopting or serving as foster parents continued throughout the 1990s and 2000s. For example, in

21 2000, Mississippi’s legislature passed a ban on adoption by same-sex couples that was

22 subsequently signed by the governor. As recently as 2008, Arkansas enacted by popular

23 referendum a ban on foster care and adoption by gay people.

24

85. Some states enacted laws that bar recognition of out-of-state adoptions by same-

25 sex couples. For example, in 2004, Oklahoma passed the “Adoption Invalidation Law,” which

26 stated that Oklahoma “shall not recognize an adoption by more than one individual of the same

27 sex from any other state or foreign jurisdiction.”

28

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1

86. Some states refuse to allow a biological parent’s same-sex partner to adopt the

2 children they raise together. For example, as recently as December 2010, the North Carolina

3 Supreme Court invalidated a second parent adoption by a woman’s same-sex partner, holding that

4 a non-biological same-sex partner could not be recognized as a legal parent.

5

87. During the 1980s and 1990s, gay and lesbian parents continued to face significant

6 obstacles in custody and visitation disputes. Courts continued to demonstrate harsh judgments

7 toward gay and lesbian parents even when a child was conceived with two gay or two lesbian

8 parents intending to raise the child jointly. This was especially evident when the courts had to

9 decide where to place a child when the child’s biological mother died and one of her relatives

10 contested the right of her surviving partner, the child’s second mother, to continue to raise the

11 child. In a number of cases, courts granted custody to those relatives despite clear evidence that

12 the child wished to remain with her surviving mother.

13

D. Depiction of Gay Men and Lesbians in the Media.

14

87. With the decline in movie and television censorship and the growing interest in

15 gay people and issues, there was a significant increase in the coverage of gay issues in the media

16 and in the number of gay characters in movies and on television in the 1990s. By the time the

17 immensely popular Will & Grace premiered on NBC in 1998, gay and lesbian characters were a

18 more regular part of the television landscape. This exposure changed the dominant representation

19 of homosexuals. Gay people usually appeared in the media in the 1950s as shadowy and

20 dangerous figures, but they now appeared as a diverse and familiar group whose all-too-human

21 struggles and pleasures drew the interest of large viewing audiences.

22

88. It was not only in the media that heterosexuals began to see gay and lesbian

23 people. Dramatically increasing numbers of lesbians and gay men revealed their homosexuality

24 to their families, friends, neighbors, and co-workers in the 1990s. Polling data suggest the

25 magnitude of the shift. In 1985, only a quarter of Americans reported that a friend, relative, or

26 co-worker had personally told them that they were gay, and more than half believed they did not

27 know anyone gay. Fifteen years later, in 2000, the number of people who knew someone openly

28 gay had tripled to three-quarters of the population. Acceptance of gay men and lesbians and

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1 support for civil rights protections increased as growing numbers of heterosexuals realized that

2 some of the people they most loved and respected were gay.

3

89. It is important not to overstate the results of this nationwide “coming out”

4 experience, however. In 2000, a significant majority of Americans still expressed moral

5 disapproval of homosexuality. Moreover, support for lesbian and gay civil rights and equality

6 continued to show significant regional differences. Polls showed that public opinion in

7 Massachusetts, Connecticut, and Hawaii was the most tolerant. Support for civil rights also was

8 strong in most other states in New England, in New Jersey and New York, and in other regional

9 clusters: Maryland in the mid-Atlantic, Wisconsin, Minnesota, and Illinois in the upper Midwest,

10 and California, Oregon, and Washington on the West Coast. Anti-gay sentiment was strongest in

11 southern states and in the lower Midwest and plains states. The effects of these regional

12 differences could be seen in regional variations in congressional votes on key gay rights issues, in

13 the treatment of gay couples and individuals by state laws, regulations and court rulings

14 concerning adoption and foster parenting, parental rights, and in the passage of gay rights laws.

15 Only two states—Wisconsin in 1982 and Massachusetts in 1989—enacted legislation banning

16 anti-gay discrimination before 1990. The number rose to eleven by 2000, but eight of the states

17 were in the Northeast or on the Pacific Coast. The rights of gay people continue to vary

18 enormously across the nation.

19

E. Continued Official, Religious, and Private Condemnation of Homosexuality in

20

the 1990s-2000s

21

90. Gay people also continue to face discrimination and opprobrium from highly

22 regarded institutions and officials. The Boy Scouts of America, a federally-chartered

23 organization, continues to insist that “homosexual conduct is not morally straight,” and refuses to

24 allow gay men into the organization. Boy Scouts of America v. Dale, 530 U.S. 640, 651 (2000).

25 Less than a decade ago, the Chief Justice of the Alabama Supreme Court referred, in a judicial

26 opinion, to homosexual conduct as “abhorrent, immoral, detestable, a crime against nature, and a

27 violation of the laws of nature and of nature’s God upon which this Nation and our laws are

28 predicated.” Ex Parte H.H., 830 So. 2d 21, 26 (2002) (Moore, C.J., concurring).

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1

91. Although the American Psychiatric Association (APA) removed homosexuality

2 from its list of mental disorders in 1973, dissident psychiatrists and psychologists led by Charles

3 Socarides and Joseph Nicolosi established the National Association for Research and Therapy of

4 Homosexuality (NARTH) in 1992. Disagreeing with both the APA and prevailing professional

5 opinion, NARTH continues to disseminate materials claiming a scientific basis for believing that

6 homosexuality is a psychological disorder and a “potentially deadly lifestyle,” and that

7 homosexuals can be “healed.” NARTH also lectures, partners with religious organizations,

8 supports conversion therapy activities, and files amicus briefs in court cases.

9

92. Anti-gay activists also used the appearance of AIDS in the early 1980s to rekindle

10 the historic associations between homosexuality, disease, and public danger.

11

F. Anti-Gay Policing and Private Anti-Gay Violence

12

93. Although police harassment of gay men and lesbians and their meeting places is

13 not as common as it was some years ago, it continues to be a problem. In 2009, for example,

14 there were highly publicized police raids of gay bars in Atlanta, Georgia, and in Ft. Worth, Texas,

15 where one patron was critically injured.

16

94. Gay people also continue to face violence motivated by anti-gay bias. A handful

17 of horrific incidents have drawn widespread media attention. In 1984, in Bangor, Maine, 23-

18 year-old Charlie Howard was targeted by three teens due to his sexual orientation. They attacked

19 him and, although he protested that he could not swim, threw him off a bridge into the

20 Kenduskeag Stream, where he drowned. Then, in 1998, Matthew Shepard, a college student in

21 Laramie, Wyoming, was bound, tied to a fence, beaten with a pistol, and left to die because he

22 was gay. Ten years later, Lawrence “Larry” Fobes King, a 15-year-old student at E.O. Green

23 Junior High School in Oxnard, California, was shot and killed in school by a fellow student

24 because of his sexual orientation. But the problem reaches far beyond these three incidents. For

25 example, in 1994, in Reno, Nevada, a gay businessman, William Metz, was stabbed more than 20

26 times by his murderer, who reputedly wanted to carve a swastika into his body. The FBI reported

27 1,260 hate crime incidents based on perceived sexual orientation in 1998 and 1,265 in 2007. In

28 2008, the year of Lawrence King’s murder, a national coalition of anti-violence social service

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1 agencies identified twenty-nine murders motivated by the assailants’ hatred of lesbian, gay,

2 bisexual, or transgender people. The threat of violence continues to lead many gay people to hide

3 their identities or to avoid such commonplace expressions of affection as holding hands with their

4 partners in public.

5

95. The most vulnerable victims of discrimination are youth. A national study

6 published in December 2010 found that gay and lesbian teenagers are nearly 40 percent more

7 likely than heterosexual teenagers to be punished by schools, police, and the courts. According to

8 the Gay, Lesbian and Straight Education Network’s 2009 National School Climate Survey

9 published in 2010, 61.1 percent of lesbian, gay, bisexual and transgender (LGBT) students

10 surveyed felt unsafe at school because of their sexual orientation; 84.6 percent were verbally

11 harassed because of their sexual orientation; 40.1 percent were physically harassed in the past

12 year because of their sexual orientation; and 18.8 percent were physically assaulted because of

13 their sexual orientation. A recent study sponsored by the New York City Council noted the over-

14 representation of LGBT youth among the city’s homeless population. And the recent spate of

15 suicides among LGBT youth has highlighted the personal consequences of the ostracism and

16 demonization of gay men and lesbians in American society.

17

96. One example of the harassment that LGBT youth may face comes was recounted

18 by Derek Henkle, a high school student in Washoe County School District, Nevada, who sued the

19 District for failing to protect him from anti-gay harassment. Henkle v. Gregory, 150 F. Supp. 2d

20 1067 (D. Nev. 2001). His suit contended that, on one occasion, students lassoed a rope around

21 his neck in the school parking lot and threatened to kill him by dragging him from their truck. On

22 another occasion, Henkle explained, he was punched by another student while two school security

23 guards stood by. Henkle also reported that one of his principals told him to “stop acting like a

24 fag.” The case resulted in the largest pre-trial settlement of its kind in the nation at the time.

25

G. Marriage

26

97. Gay men and lesbians are still prohibited from marrying in the vast majority of

27 states in this country and the question of marriage rights for same-sex couples remains hotly

28 contested across-the-board. Some of the arguments made in the debate over the right of gay

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1 couples to marry have echoed those made in earlier debates over the rights of disfavored minority

2 groups. Fifty years ago, for instance, segregationists often claimed that segregation and statutes

3 banning interracial marriage reflected God’s plan for humankind. In the 1960s, a Virginia judge

4 who upheld that state’s law against interracial marriage in the lower-court proceeding in Loving v.

5 Virginia claimed that “Almighty God created the races white, black, yellow, malay and red, and he

6 placed them on separate continents. And but for the interference with his arrangement there would

7 be no cause for such marriages. The fact that he separated the races shows that he did not intend for

8 the races to mix.”

9

98. Opponents of the right of gay people to marry or adopt children also have drawn on

10 their reading of scripture to justify their positions. As recently as 2002, when the Supreme Court

11 of Alabama reversed the Alabama Court of Civil Appeals’ decision to grant a lesbian mother

12 custody of her children, the Chief Justice of the Supreme Court of Alabama used language as strong

13 as that used by the trial judge in Loving v. Virginia in his concurring opinion: “Homosexuality is

14 strongly condemned in the common law because it violates both natural and revealed law. The law

15 of the Old Testament enforced this distinction between the genders by stating that ‘[i]f a man lies

16 with a male as he lies with a woman, both of them have committed an abomination.’ Leviticus

17 20:13 (King James) . . . The common law designates homosexuality as an inherent evil, and if a

18 person openly engages in such a practice, that fact alone would render him or her an unfit parent.” Ex

19 parte H.H. 830 So.2d 21, 33, 35 (Ala. 2002).

20

99. The vigorous opposition to ending discrimination against lesbian and gay couples in

21 marriage law is the latest example of this pattern. The marriage issue first reached the national

22 stage in 1993, when Hawaii’s Supreme Court ruled that the state’s ban on marriages between

23 same-sex couples presumptively violated the state’s equal rights amendment and remanded the

24 lawsuit challenging that ban to a lower court for review. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

25 By 1996, when a second trial began in the lower court, the prospect of gay couples winning the right

26 to marry had galvanized considerable opposition. Ultimately, while the litigation was pending,

27 Hawaii amended its constitution to give the legislature the authority to limit marriage to different-sex

28 couples, see Haw. Const. art. I, § 23, which it did. The Hawaii Supreme Court then dismissed the

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1 case as moot. Baehr v. Miike, Civ. No. 20371 slip op. at 5-8 (Dec. 9, 1999) (taking notice of

2 constitutional amendment). In addition, under pressure from organizations proclaiming support for

3 “traditional family values,” the United States Senate passed the Defense of Marriage Act (DOMA) on

4 the day the Hawaii trial began. The Act provided a federal definition of marriage as the union of one

5 man and one woman and declared that no state needed to give “full faith and credit” to “same-sex

6 marriages” licensed in another state. It also denied federal benefits to such married couples.

7 Fourteen states passed state-level DOMA statutes that year, and another eleven passed such

8 statutes the following year. In 2000 and 2002, voters in Nevada approved a state constitutional

9 amendment to bar same-sex couples from marriage. In 2004, when Massachusetts became the first

10 state to permit gay couples to marry, a full thirteen states passed constitutional amendments banning

11 such marriages even though twelve of those states already had enacted statutory state DOMAs.

12

100. Indeed, in each state where gay men and lesbians have achieved the right to marry

13 – either through judicial decision or legislative action – there has been significant and organized

14 action by those opposed to marriage rights for same-sex couples to take that right away.

15 California provides a good – and especially contentious – example. In February 2004, San

16 Francisco mayor Gavin Newsom instructed city officials to issue marriage licenses to same-sex

17 couples. The California Supreme Court ordered the city to stop doing so the following month,

18 and it later nullified the marriages which had been performed. In 2005, and again in 2007,

19 California’s legislature approved bills that would legalize marriage for same-sex couples, but both

20 bills were vetoed by then-Governor Schwarzenegger. In May 2008, the California Supreme Court

21 decided in In re Marriage Cases, 183 P.3d 384 (Cal. 2008) that the privacy and due process

22 provisions of the California Constitution guaranteed the basic civil right of marriage to all

23 individuals and couples, without regard to their sexual orientation. Six months later, on

24 November 4, 2008, California voters approved Proposition 8, adding to the California Constitution

25 the provision “Only marriage between a man and a woman is valid or recognized in California.”

26 Same-sex couples immediately sued to prevent the enforcement of Proposition 8, but their efforts

27 were rebuffed by the California Supreme Court in Strauss v. Horton, 207 P.3d 48 (Cal. 2009). The

28 court held that the amendment was lawfully enacted, but that it did not invalidate marriages of

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1 same-sex couples performed in California prior to its effective date. Federal litigation concerning

2 the constitutionality of Proposition 8 is ongoing, with the Ninth Circuit overturning Proposition 8

3 on equal protection grounds.

4

101. Opponents of marriage equality who supported Proposition 8 mobilized some of

5 the most enduring anti-gay stereotypes to heighten public apprehension. Several television

6 commercials aired by the supporters of Proposition 8, for instance, warned that marriage equality

7 might encourage children to become homosexuals themselves. The approval of California’s

8 Proposition 8 along with similar laws and constitutional amendments in forty other states indicates

9 the enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay

10 people and their relationships.

11

102. Iowa provides another example. In April 2009, a unanimous Iowa Supreme Court

12 struck down the exclusion of qualified same-sex couples from civil marriage. In response,

13 national organizations opposed to marriage for same-sex couples, such as the National

14 Organization for Marriage and the American Family Association, initiated a campaign for the

15 removal of three of the judges involved in that decision who were subject to retention elections.

16 The campaign was successful, and all three judges were ousted from their position on the bench.

17 Efforts to legislatively repeal marriage for same-sex couples now are underway in Iowa.

18

CONCLUSION

19

Today the civil rights enjoyed by gay and lesbian Americans vary substantially from

20 region to region and are still subject to the vicissitudes of public opinion. Like other minority

21 groups, they often must rely on judicial decisions to secure equal rights. The role of the courts in

22 this dispute is reminiscent of earlier disputes in which courts had to confront public opposition to

23 minority rights. In 1948, when the California Supreme Court became the first state supreme court

24 in the nation to overturn a state law banning interracial marriage, it bucked the tide of white

25 public opposition to such marriages. While the United States Supreme Court overturned the

26 remaining state bans on interracial marriage in 1967 in Loving v. Virginia, it was not until 2001

27 that more Americans approved of interracial marriage than disapproved of it. History has

28 vindicated the judges who had the courage and foresight to uphold the constitutional rights of

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Exhibit A

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GEORGE CHAUNCEY

CURRENT POSITION

Department of History Yale University P.O. Box 208324
New Haven, CT 06520-8324 (203) 432-1364
george.chauncey@yale.edu

Professor of History and American Studies; Chair, Department of History, Yale University Co-director, Yale Research Initiative on the History of Sexualities
PREVIOUS POSITIONS
Professor of History, University of Chicago, 1997-2006. Visiting Professor of History, École Normale Supérieure, Paris, May 2001. Associate Professor of History, University of Chicago, 1995-97. Assistant Professor of History, University of Chicago, 1991-95. Assistant Professor of History, New York University, 1990-91. Postdoctoral Fellow, Rutgers Center for Historical Analysis, 1989-90.
DEGREES

Ph.D., Yale University, 1989. M.Phil., Yale University, 1983. M.A., Yale University, 1981. B.A., Yale University, magna cum laude, 1977.
AWARDS

Gay New York was awarded the: Frederick Jackson Turner Award for the best first book on any topic in American history in 1994 Merle Curti Award for the best book in American social history in 1994 or 1995 (both from the Organization of American Historians), Los Angeles Times Book Prize for History (1994), Lambda Literary Award for Gay Men’s Studies (1994), John Boswell Award of the Committee on Lesbian and Gay History of the American Historical Association (1995). Named a New York Times Notable Book of 1994. Village Voice List: one of the Best Books of 1994. Lingua Franca List: one of the two best academic books of the 1990s. Subject of a panel discussion, “Charting Chauncey’s Gay Male World: Reflections on the Tenth Anniversary of Gay New York,” at the 2004 meeting of the OAH.

As a dissertation, Gay New York received the following prizes from Yale University: George Washington Egleston Prize in American history (1990), John Addison Porter Prize, Yale’s highest university-wide dissertation award (1990), Andrew Gaylord Bourne Gold Medal, the Yale History Department’s triennial award for a “pioneering work of scholarship” (1992).

Other Honors: New York Academy of History, elected to membership in 2007. Society of American Historians, elected to membership in 2005. Community Service Award from the Lesbian Community Cancer Project, Chicago, 2004.

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Freedom Award from Equality Illinois, the state’s largest gay rights group, 2001. First James Brudner Memorial Award in Lesbian and Gay Studies, Yale University, 2000. Centennial Historian of the City of New York, 1998. Sprague-Todes Literary Award, Gerber-Hart Library, 1997.
BOOKS AND EDITED COLLECTIONS
Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 Basic Books, 1994; paperback, 1995. British edition published by HarperCollins/U.K., 1995. French translation by Didier Eribon published by Fayard, 2003. Chapters reprinted in: The Columbia Reader on Lesbians and Gay Men in Media, Society, and Politics, eds. Larry Gross and James C. Woods (Columbia, 1999) The Gender and Consumer Culture Reader, ed. Jennifer Scanlon (NYU, 2000) Major Problems in the History of American Sexuality: Documents and Essays, ed. Kathy Peiss (Heath, 2001) Sexualities in History, eds. Kim M. Phillips and Barry Reay (Routledge, 2002). American Queer: Now and Then, ed. David Shneer and Caryn Aviv (Paradigm, 2006).
The Strange Career of the Closet: Gay Culture, Consciousness, and Politics from the Second World War to the Gay Liberation Era
(in progress, to be published by Basic Books).
Why Marriage? The History Shaping Today’s Debate Over Gay Equality (Basic Books, 2004; paperback, 2005).
Japanese translation published by Akashi Shoten, 2006.
Hidden From History: Reclaiming the Gay and Lesbian Past (Co-editor, with Martin Duberman and Martha Vicinus; a collection of thirty essays published by New American Library in 1989). Turkish translation published by Siyasal, 2002.
Thinking Sexuality Transnationally (= special issue of GLQ: A Journal of Lesbian and Gay Studies, 5:4 (1999), co-editor with Elizabeth Povinelli).
Gender Histories and Heresies (= special issue of Radical History Review, 52 (1992), co-editor with Barbara Melosh).
ARTICLES IN SCHOLARLY JOURNALS AND COLLECTIONS
“The Trouble with Shame,” in Gay Shame, ed. David Halperin and Valerie Traub (University of Chicago Press, 2010).
“How History Mattered: Sodomy Law and Marriage Reform in the United States,” Public Culture 20:1 (2008): 27-38.
“Homosexuality, Family, and Society: Historical Perspectives from the United States,” in Homosexuality and the Law: Essays and Materials from an International Workshop on Sexuality, Policy, and Law (Guangxi Normal University Press, 2007 [in Chinese and English]), 12-18, 115-23.
“Après Stonewall, le déplacement de la frontière entre le ‘soi’ public et le ‘soi’ privé,” Histoire et Sociétés: revue européenne d’histoire sociale 3 (2002): 45-59.
“Skapets historie,” Kvinneforskning 24 (2000): 56-71 [“The History of the Closet,” in the Norwegian journal Women’s Studies].
“Introduction: Thinking Sexuality Transnationally,” with Elizabeth A. Povinelli, in Povinelli and Chauncey, eds., “Thinking Sexuality Transnationally,” special issue of GLQ: A Journal of Lesbian and Gay Studies 5:4 (Autumn 1999): 439-49.

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“Gay New York,” Actes de la recherche en sciences sociales 125 (December 1998): 9-14. [This article and the rest of the special issue on Homosexualités are introduced by Éric Fassin, “Politiques de l’histoire: Gay New York et l’historiographie homosexuelle aux Étas-Unis,” 3-9.]
“Genres, identités sexuelles et conscience homosexuelle dans l’Amérique du xxe siècle,” in Les études gay et lesbiennes, ed. Didier Eribon (Paris: Éditions du Centre Pompidou, 1998), 97-108.
“Sex, Gender, and Sexuality: Female Prostitution and Male Homosexuality in Early Twentieth-Century America,” GRAAT (Groupes de Recherches Anglo-Americaines de Tours) 17 (1997): 39-54.
“The Queer History and Politics of Lesbian and Gay Studies,” Queer Frontiers: Millennial Geographies, Genders, and Generations, ed. Joseph Boone, et al. (University of Wisconsin Press, 2000), 298-315.
“From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance,” Salmagundi, no. 58-59 (Fall 1982-Winter 1983): 114-46.
Reprinted in two collections: Homosexualidad: literatura y politica (Madrid, 1982), in Spanish Passion and Power: Sexuality in History, ed. Kathy Peiss and Christina Simmons (Temple University Press, 1989).
“Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era,” Journal of Social History 19:2 (1985): 189-211.
Reprinted in ten collections: Onder Mannen, Onder Vrouwen (Amsterdam, 1984), in Dutch Sodomites, Invertis, Homosexuels: Perspectives Historiques (Paris, 1994), in French Expanding the Past: Essays from the Journal of Social History (New York University Press, 1988) Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989) Studies in Homosexuality: History of Homosexuality in Europe and America (Garland, 1992) Gender in American History Since 1890 (Routledge, 1993) Que(e)rying Religious Studies (Continuum, 1997) Same Sex: Debating the Ethics, Culture, and Science of Homosexuality (Rowman & Littlefield, 1997) American Sexual Histories (Blackwell, 2001) Sexual Borderlands: Constructing An American Sexual Past (Ohio University Press, 2003)
“‘Privacy Could Only Be Had in Public’: Gay Uses of the Streets,” Stud: Architectures of Masculinity, ed. Joel Sanders (Princeton Architecture Press, 1996), 224-61.
“The Postwar Sex Crime Panic,” True Stories from the American Past, ed. William Graebner (McGraw-Hill, 1993), 160-78.
“Long-Haired Men and Short-Haired Women: Building a Gay World in the Heart of Bohemia,” Greenwich Village: Culture and Counterculture, ed. Rick Beard and Leslie Berlowitz (Rutgers University Press, 1993), 151-64.
“The Policed: Gay Men’s Strategies of Everyday Resistance,” Inventing Times Square: Commerce and Culture at the Crossroads of the World, 1880-1939, ed. William R. Taylor (Russell Sage, 1991), 315-28.
Reprinted in Creating A Place For Ourselves: Lesbian, Gay`, and Bisexual Community Histories, ed. Brett Beemyn (Routledge, 1997).
“The National Panic Over Sex Crimes and the Construction of Cold War Sexual Ideology, 1947-1953,” Sociologische Gids [Amsterdam] 32 (1985): 371-93. [In Dutch; title translated.]
“The Locus of Reproduction: Women’s Labour in the Zambian Copperbelt, 1927-1953,” Journal of Southern African Studies 7 (1981): 135-64.

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SELECTED SHORT ESSAYS, REVIEWS, INTERVIEWS, AND ENCYCLOPEDIA ENTRIES
“Last Ban Standing,” New York Times, December 21, 2010, A35.
“Gay at Yale: How Things Changed,” Yale Alumni Magazine (July/August 2009), 32-43.
“George Chauncey: de l’autre côté du placard,” interview conducted by Philippe Mangeot for Vacarme, no. 26 (Winter 2004), 4-12.
“D’une march à l’autre,” interview conducted by Sébastien Chauvin for Têtu (June 2004), 86-87.
Review of James McCourt, “Queer Street: Rise and Fall of an American Culture, 1947-1985,” New York Times, December 31, 2003.
“Etats Unis” and “New York,” in Dictionnaire Des Cultures Gays Et Lesbiennes, ed. Didier Eribon, Arnaud Lerch, Frederic Haboury (Larousee, 2003).
Amici Curiae Brief of Professors of History to the Supreme Court in the case of Lawrence v. Texas (organizer and primary author; co-signed by nine other historians). Sections reprinted as “Educating the Court: In Changing the Law of the Land, Six Justices Turned to Its History,” Word for Word column, Week in Review, New York Times, July 20, 2003, and discussed in “What Gay Studies Taught the Court,” Washington Post, July 13, 2003. Reprinted in full, with my introduction, in GLQ: A Journal of Lesbian and Gay Studies 10.3 (2004): 509-38.
“Introduction,” Homosexuality in the City: A Century of Research at the University of Chicago (University of Chicago Library, 2000).
“Who is Welcome at Ellis Island? AIDS Activism and the Expanding National Community,” Honoring With Pride: An Evening Benefit for the American Foundation for AIDS Research on Ellis Island, program book, June 21, 2000.
“The Ridicule of Lesbian and Gay Studies Threatens All Academic Inquiry,” back page “Point of View” column, Chronicle of Higher Education, July 3, 1998.
Review of Charles Kaiser, “The Gay Metropolis, 1940-1996,” New York Times , December 30, 1997.
Review of Daniel Harris, “The Rise and Fall of Gay Culture,” New York Times Book Review, September 7, 1997.
“The Joy of No Sex,” part of a Talk-of-the-Town roundtable on the Heaven’s Gate mass suicide, The New Yorker, April 14, 1997, 31-32.
“The Present as History,” Out Magazine, February 1997, 69.
“Tea and Sympathy,” Past Imperfect: History According to Hollywood, ed. Mark Carnes (Henry Holt, 1995), 258-61.
“Gay male community,” in The Encyclopedia of New York City, ed. Kenneth Jackson (Yale, 1995).
“A Gay World, Vibrant and Forgotten,” New York Times Op-Ed Page, Sunday, June 26, 1994.
“Queer Old New York: A Historic Walking Tour,” Village Voice, June 21, 1994, 25-27.
“Homosexuality,” The Encyclopedia of Social History, ed. Peter N. Stearns (Garland, 1993), 323-25.
“Time on Two Crosses: An Interview with Bayard Rustin” (with Lisa Kennedy), Village Voice, June 30, 1987, 27-29.
“Gay Male Society in the Jazz Age,” Village Voice, July 1, 1986, 29-34.
FELLOWSHIP AWARDS New York Public Library Dorothy and Lewis B. Cullman Center for Scholars and Writers Residential Fellowship, 2004-5. Princeton University Shelby Cullom Davis Center for Historical Studies Fellowship, 2004-5 [declined]. Institute for Advanced Study School of Social Science Membership, 2004-5 [declined].

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George Chauncey, page 5
Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 2002-3. Social Science Research Council Sexuality Research Fellowship, Faculty Advisor Award, 1999-2000. Fellow, Institute for Advanced Study, Indiana University, September 1998. Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 1997-98. John Simon Guggenheim Memorial Foundation Fellowship, 1996-97. National Humanities Center Rockefeller Fellowship and Residency, 1996-97. American Council of Learned Societies Fellowship for Recent Recipients of the Ph.D., 1992-93. Cornell University Society for the Humanities Postdoctoral Fellowship, 1991-92
[declined in order to accept new position at Chicago]. Rutgers Center for Historical Analysis Postdoctoral Fellowship, 1989-90. New York University School of Law Samuel Golieb Fellowship in Legal History, 1987-88. Mrs. G. Whiting Foundation Fellowship in the Humanities, 1986-87. Woodrow Wilson Foundation Research Grant in Women's Studies, 1984. Bush Center in Child Development and Social Policy History Fellowship, 1983-84. Yale College Prize Teaching Fellowship, 1982-83. Danforth Foundation Graduate Fellowship, 1979-82. John Courtney Murray Travelling Fellowship, 1977-78 [supported research in Zambia].
PRIMARY INVESTIGATOR, INSTITUTIONAL GRANTS
Ford Foundation, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000.
Rockefeller Foundation, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000.
Illinois Humanities Council, grant in support of “The Future of the Queer Past: A Transnational History Conference,” University of Chicago, 2000.
Mellon Foundation, grant in support of the Sawyer Seminar on Sexual Identities and Identity Politics in Transnational Perspective, University of Chicago, 1997-98.
NAMED LECTURES, PLENARY LECTURES, AND SELECTED FOREIGN LECTURES
“From Sodomy Laws to Marriage Amendments: The History Shaping Today’s Debate over LGBT Equality,” keynote address at Toward a More Perfect Union: Civil Rights, Human Rights, and Creating a New Age of Social Responsibility, Benjamin Hooks Conference for Social Change, University of Memphis, April 2012
“Single Men, Urban Decline, and the Cultural Logic of Postwar American Antigay Politics,” Rutgers Center for Historical Analysis Twentieth Anniversary Celebration Conference, Rutgers University, May 2010
“Homosexuality and the Postwar City,” Center for Interdisciplinary Research in the Arts, University of Manchester, England, March 2009.
“Homosexuality and the Postwar City,” keynote lecture, Australia-New Zealand American Studies Association, Sydney, July 2008.
“From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics,” Provost’s Lecture, University of Maryland, College Park, February 2008.
“Revisiting the Postwar Politics of Sexuality,” keynote lecture (with Joanne Meyerowitz), New England American Studies Association, Brown University, November 2007.
“From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics,” Presidential Lecture, Columbia University, April 2007.
“Why ‘Come Out of the Closet’? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” Vern and Bonnie Bullough Lecture in the History of Sexuality and Gender, University of Utah, April 2007.

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George Chauncey, page 6
“The Future of Sexuality Studies,” at the plenary session of the Sexuality Research Fellowship Program’s Capstone Conference (commemorating the conclusion of a ten-year-long fellowship program funded by the Ford Foundation and administered by the Social Science Research Council), Tamayo Resort, New Mexico, April 2006.
“Homosexuality, State, and Society: Historical Perspectives from the United States,” at the symposium “Diversity, Equality and Harmony: International Workshop on Sexuality, Policy and Law,” School of Social Development and Public Policy, Fudan University, Shanghai, China, January 2006.
“How History Mattered: Sodomy Law and Marriage Reform in the United States,” at the conference “Partisan Histories: Conflicted Pasts and Public Life,” The Australian National University, Canberra, September 2005.
“From Sodomy Laws to Marriage Amendments: Sexual Identity/Politics Since 1900,” Kaplan Lecture, University of Pennsylvania, March 2004.
“Reflections on Gay New York and Beyond,” at the symposium “Histoire sexuelle et histoire sociale, à l’occasion de la traduction française de Gay New York 1890-1940 de George Chauncey,” École normale supérieure, Paris, December 2003.
“Civil Rights, Gay Rights, Human Rights,” dual keynote address given with Mrs. Coretta Scott King at the beginning of Outgiving, a conference on gay philanthropy organized by the Gill Foundation, Atlanta, September 2003.
“Drag Balls as Society Balls: Phil Black’s Funmakers’ Ball and the Changing Rituals of Belonging in African American Society, 1940-1973,” Mark Ouderkirk Memorial Lecture, Museum of the City of New York, September 2003.
“A Different West Side Story: Latino Gay Culture and Antigay Politics in Postwar New York City,” Nicholas Papadopoulos Endowed Lecture in Lesbian and Gay Studies, University of California, San Diego, February 2003.
“Why ‘Come Out of the Closet’? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” The Rahv, Hughes, Manuel and Marcuse Memorial Lecture, Brandeis University, February 2003.
“Sexual Identity in the Twentieth Century,” Women’s Breakfast, American Historical Association, January 2003.
“Sexuality, Intimacy, and History,” Commencement Address, University of Chicago, June 2002.
“Why ‘Come Out of the Closet’? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” at “Histoire de la sexualité: échanges transatlantiques,” at the École normale supérieure, Paris, May 2001.
“The History of the Closet,” Inaugural George Mosse Memorial Lecture, University of Wisconsin, April 2001.
“The History of the Closet,” at the Sexuality 2000 Symposium, Oslo, Norway, August 2000.
“Why ‘Come Out of the Closet’? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s,” Inaugural Brudner Prize Lecture, Yale University, February 2000.
“Rethinking the History of Homosexuality and the Category of the Homosexual” and “A Research Program for Lesbian and Gay Studies,” at the First Swedish Conference on Research on Homosexuality and Lesbianism, University of Gothenburg, Sweden, November 1995.
“The National Panic over Sex Crimes in Cold War America,” Inaugural Mark Ouderkirk Memorial Lecture, Museum of the City of New York, June 1995.
“Gay Studies on Trial: Queer History/Politics/Studies,” at the Fifth National Graduate Student Conference on Lesbian and Gay Studies, University of Southern California, Los Angeles, March 1995.

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“The Kinsey Scale and the Consolidation of the Hetero-Homosexual Binarism in the Twentieth Century,” at the Second International Conference on the History of Marriage and the Family, Carleton University, Ottawa, Canada, 1994.
“European Sexual Cultures in the Immigrant Neighborhoods of New York City, 1890-1940,” at the International Conference on European Sexual Cultures, University of Amsterdam, The Netherlands, June 1992.
“Publish and Perish? Lesbian/Gay Studies, Publishing, and the Academy,” at the plenary session on “New Directions in Scholarship,” Association of American University Presses, Chicago, June 1992.
OTHER INVITED LECTURES SINCE 1989
Chicago History Museum, April 14, 2011. Columbia University, February 19, 2011. Rutgers University, May 7, 2010. University of Antwerp, Belgium, March 20, 2010 University of Amsterdam, March 15, 2010 Middlebury College, October 17, 2008. The Rothmere American Institute, Oxford University, April 30, 2008. University of Texas, Austin, April 11, 2008. University of Amsterdam, The Netherlands, May 3, 2006. Facultad de Filosofía y Letras, University of Buenos Aires, Argentina, March 20, 2006. Kansas State University, March 10, 2006. University of Miami, February 27, 2006. DePaul University, Chicago, February 20, 2006. Harvard University, February 3, 2006. University of Massachusetts, Boston, February 3, 2006. Boston University, February 2, 2006. Yale University, January 17, 2006. University of Melbourne, Australia, September 21, 2005. University of Sydney, Australia, September 7, 2005. New York University, April 19, 2005. Chicago Historical Society, May 27, 2004. University of North Texas, April 17, 2004. University of Maryland, February 23, 2004. University of California, Berkeley, September 25, 2003. University of California, Los Angeles, February 20, 2003. University of Minnesota, February 15, 2002. Texas A&M University, April 25, 2001. William and Mary College, April 18, 2001. Northwestern University, April 5, 2001. Harvard University, November 16, 2000. Trinity College, November 15, 2000. University of Michigan, April 15, 2000. University of Connecticut, Storrs, February 17, 2000. Hobart and William Smith Colleges, February 13, 2000. Chicago Humanities Festival, November 8, 1998. Indiana University, September 17, 1998. University of Minnesota, May 22, 1998. Institute for the Humanities, University of Illinois, Chicago, February 13, 1998. Pompidou Center, Paris, June 27, 1997. Colby College, April 10, 1997. Cornell University, April 8, 1997. University of California, Los Angeles, February 5, 1997. University of California, Irvine, February 3-4, 1997. Northwestern University, December 6, 1996.

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George Chauncey, page 8
Yale University, American Studies and History Departments, November 7, 1996. Yale School of Architecture Urbanism Series, November 7, 1996. University of Copenhagen, Denmark, November 3, 1995. National Danish Lesbian and Gay Organization, Copenhagen, November 3, 1995. University of Illinois, Champaign-Urbana, MillerComm Lectures, October 23, 24, 1995. University of Notre Dame, September 9, 10, 1995. Princeton University, March 9, 1995. Chicago Teacher’s Institute, December 7, 1994. New York Academy of Medicine, New York City, November 10, 1994. University of Chicago New York City Club, Distinguished Faculty Lecture Series, October 13, 1994. Northwestern University, May 17, 1994. New York Public Library, Celeste Bartos Forum, May 3, 1994.
[This lecture was later broadcast on public television.] New York University, April 29, 1994. Rutgers University, December 6, 1993. Newberry Library Social History Seminar, June 8, 1993. University of Wisconsin, Milwaukee, Center for Twentieth Century Studies, March 25, 1993. Urban History Seminar of the Chicago Historical Society, January 12, 1993. University of Illinois at Chicago, November 11, 1992. New York City Lesbian and Gay Community Services Center, Gregory Kolovakas Memorial Lecture Series,
November 19, 1992. University of Oregon, April 24, 1992. Cornell University, February 24, 1992. University of Chicago Centennial Symposium, Canons in the Age of Mass Culture, February 10, 1992. Northwestern University, May 30, 1991. Johns Hopkins University, March 28, 1991. Sarah Lawrence College, November 27, 1990. Carleton College, April 5, 1990. Museum of the City of New York, November 5, 1989. Rutgers Center for Historical Analysis, October 3, 1989. Rutgers University, Camden, April 6, 1989.

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Exhibit B

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BIBLIOGRAPHY
Across the USA: News From Every State, USA Today, Jul. 27, 1994 at 10a.
Allan Bérubé, Coming Out Under Fire: The History of Gay Men and Women in World War II (New York: Free Press, 1992).
Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010).
Nan Alamilla Boyd, Wide Open Town: A History of Queer San Francisco (Berkeley: University of California Press, 2003).
Robbie Brown, Antipathy Toward Obama Seen as Helping Arkansas Limit Adoption, The New York Times, Nov. 8, 2008 at A26.
Rob Burnes, Homosexual Law Unchanged, The Billings Gazette, Sept. 3, 1970, at 6.
California Safe Schools Coalition, et al., Safe Place to Learn: Consequences of Harassment Based on Actual or Perceived Sexual Orientation and Gender Non-Conformity and Steps for Making Schools Safer (2004).
Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009).
David L. Chambers and Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 Family Law Quarterly, 1999-2000.
George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Basic Books, 1994).
George Chauncey, Why Marriage? The History Shaping Today’s Debate over Gay Equality (New York: Basic Books, 2004).
George Chauncey, Martin Duberman, and Martha Vicinus, eds., Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989).
George Chauncey, “From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance,” 58-59 Salmagundi 114-46 (Fall 1982-Winter 1983).
George Chauncey, “Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era,” 19 Journal of Social History 189-211 (1985).
George Chauncey, “The Postwar Sex Crime Panic,” in True Stories from the American Past (William Graebner edit., McGraw-Hill: 1993), pp.160-78.

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Roger Clawson, Preacher Raises Hell Over Homosexuals, The Billings Gazette, Sep. 2, 1970, at 1.
Dudley Clendinin and Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America (New York: Simon & Schuster, 1999).
Councilman Calls for Closing Night Club as Public Nuisance, The Hartford Courant, Nov. 16, 1969 at 42.
John D’Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority, 1940–1970 (Chicago: University of Chicago Press, 1981).
Empire State Coalition of Youth and Family Services, A Count of Homeless Youth in New York City (Empire State Coalition, 2008).
Tanya Erzen, Straight to Jesus: Sexual and Christian Conversions in the Ex-Gay Movement (Berkeley: University of California Press, 2006).
Lillian Faderman and Stuart Timmons, Gay L.A.: A History of Sexual Outlaws, Power Politics, and Lipstick Lesbians (New York: Basic Books, 2006).
Estelle B. Freedman, “‘Uncontrolled Desires’: The Response to the Sexual Psychopath, 1920– 1960” 74 Journal of American History 83–106 (1987).
Gay, Lesbian and Straight Education Network, The 2009 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools, (GLSEN, 2010).
General Accounting Office, Military Personnel: Financial Costs and Loss of Critical Skills Due to DOD’s Homosexual Conduct Policy Cannot be Completely Estimated (2005).
Richard Godbeer, Sexual Revolution in Early America (Baltimore: Johns Hopkins, 2002).
Henkle v. Gregory, 150 F. Supp. 2d 1067 (D. Nev. 2001).
The History Project, Improper Bostonians (Boston: Beacon Press, 1998).
In re Benites, 37 Nev. 145 (1914).
Jail Terms Urged for Offenders, The Hartford Courant, Sept. 21, 1957 at 3.
Ron Jenkins, Henry signs measure on gay adoptions, The Associated Press State & Local Wire, May 4, 2004.
David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004).
Mark D. Jordan, The Invention of Sodomy in Christian Theology (Chicago: University of Chicago Press, 1997).

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Jonathan Ned Katz, Gay/Lesbian Almanac: A New Documentary (New York: Harper & Row, 1983).
Lambda Legal, “Groundbreaking Legal Settlement is First to Recognize Constitutional Right of Gay and Lesbian Students to be Out at School & Protected From Harassment,” http://www.lambdalegal.org/news/ca_20020828_groundbreaking-legal-settlement-firstto-recognize, accessed June 27, 2012.
Ruediger Lautmann, “The Pink Triangle: Homosexuals as ‘Enemies of the State,’” in Michael Berenbaum and Abraham J. Peck, eds., The Holocaust and History (Indiana, 2002).
Eric Marcus, Making Gay History: The Half-Century Fight for Lesbian and Gay Equal Rights (2002).
Martin Meeker, “Behind the Mask of Respectability: Reconsidering the Mattachine Society and Male Homophile Practice, 1950s and 1960s” 10 Journal of the History of Sexuality 78– 116 (2001).
National Association for Research and Therapy of Homosexuality, “NARTH Position Statements,” http://narth.com/menus/positionstatements.html, accessed June 24, 2012.
National Association for Research and Therapy of Homosexuality, “The Three Myths About Homosexuality,” http://narth.com/menus/myths.html, accessed June 24, 2012.
The National Coalition of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual, and Transgender People in the United States, 2008 (National Coalition, 2009).
Nat’l Gay & Lesbian Task Force, State Laws Prohibiting Recognition of Same-Sex Relationships (2009), available at http://www.thetaskforce.org/downloads/reports/ issue_maps/samesex_relationships_7_09.pdf.
Pew Forum on Religion & Public Life, U.S. Religious Landscape Survey, February 2008.
Richard Plant, The Pink Triangle: The Nazi War Against Homosexuals (New York: Holt, 1986).
Question 2 Campaign Material, available at http://outhistory.org/wiki/File:Pro2mailer2002.jpg, 2002.
Amy Ronner, “Bottoms v. Bottoms: The Lesbian Mother and the Judicial Perpetuation of Damaging Stereotypes,” 7 Yale J. L. & Feminism, 1995.
Clifford J. Rosky, “Like Father Like Son: Homosexuality, Parenthood and the Gender of Homophobia,” 20 Yale J .L. & Feminism, 2009.
Teemu Ruskola, “Minor Disregard: The Legal Construction of the Fantasy that Gay and Lesbian Youth Do Not Exist,” 8 Yale J. L. & Feminism 269, 1996.

ER 439

Appendix – Page 258

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Servicemembers Legal Defense Network, About “Don’t Ask, Don’t Tell” (2011). Servicemembers Legal Defense Network, About the Servicemembers Legal Defense Network
(2011). Julie Shapiro, “Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their
Children,” 71 Indiana L. J. 71 623-627, 1996. Stan Simon, Homosexual Fights Driving Ban, The Hartford Courant, Nov. 6, 1970 at 17. US Department of Justice, Federal Bureau of Investigation, Hate Crime Statistics 1998; id, Hate
Crime Statistics 2007. C. Todd White, Pre-Gay L.A.: A Social History of the Movement for Homosexual Rights
(Urbana: University of Illinois Press, 2009).
William H. Whitmore, A Bibliographical Sketch of the Laws of the Massachusetts Colony from 1630 to 1686 (Boston: Rockwell and Churchill, 1890).

ER 440

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1

CERTIFICATE OF SERVICE

2 I hereby certify that I have electronically filed the foregoing with the Clerk of the Court
3 for the United States District Court, District of Nevada by using the CM/ECF system on
4 September 10, 2012. All participants in the case are registered CM/ECF users, and will be
5 served by the CM/ECF system.
6

7

By: /s/ Sklar Toy

.

8

Sklar Toy

3325 Wilshire Boulevard, Suite 1300

9

Los Angeles, CA 90010

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Tara L. Borelli

.

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Case No. 12-17668

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and
COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge.

PLAINTIFFS-APPELLANTS’ EXCERPTS OF RECORD VOLUME 4 OF 5

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600

Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY &
MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes
Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

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INDEX TO EXCERPTS OF RECORD

Volume 1 of 5

Date Filed

Document Description

12/3/2012 Judgment in a Civil Case

Dist. Ct. Dkt. No.
103

ER Pg. No.
1

11/26/2012 Order on Motion to Dismiss and Cross-Motions for Summary Judgment

102

2

Volume 2 of 5

Date Filed

Document Description

12/3/2012 Plaintiffs’ Notice of Appeal (exhibits omitted)

Dist. Ct. Dkt. No.
104

ER Pg. No.
43

11/08/2012 Plaintiffs’ Motion for Leave to File Summary

100

46

Judgment Reply Brief

.

.

Exhibit A – Plaintiffs’ Brief in Reply to the 100-1

50

Coalition’s Opposition

.

.

Exhibit B – Declaration of Michael Lamb, 100-2

56

Ph.D.

.

.

Exhibit 1 – Article

66

Exhibit 2 – Trial transcript excerpts

71

Exhibit C – Declaration of Tara Borelli

100-3

85

10/25/2012 Supplemental Declaration of Michael Lamb,

98-1

131

Ph.D. in Support of Plaintiffs’ Summary

Judgment Opposition

10/25/2012 Supplemental Declaration of Letitia Anne Peplau, Ph.D. in Support of Plaintiffs’ Summary Judgment Opposition

98-2

139

i

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Volume 2 of 5, continued

Date Filed

Document Description

9/10/2012

Plaintiffs’ Request for Judicial Notice in Support of Plaintiffs’ Motion for Summary Judgment
Exhibit A – Pages from Carson City ClerkRecorder website
Exhibit B – Page from Clark County Clerk website
Exhibit C – Ballot results for Question 2 (2000)
Exhibit D – Ballot results for Question 2 (2002)
Exhibit E – Excerpt from Social Security Administration manual
Exhibit F – Page from Nevada DMV website

Dist. Ct. Dkt. No.
87

ER Pg. No.
143 . .
148 .
157 .
159 .
165 .
170 .
174

Appendix to Plaintiffs’ Motion for Summary

86-1

177

Judgment, Vol. 1

.

Declaration of Beverly Sevcik

179

Declaration of Mary Baranovich

184

Declaration of Theodore Small

189

Declaration of Antioco Carrillo

194

Declaration of Karen Goody

199

Declaration of Karen Vibe

203

Declaration of Greg Flamer

208

Declaration of Fletcher Whitwell

212

Declaration of Mikyla Miller

216

Declaration of Katrina Miller

220

ii

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Date Filed 9/10/2012

Volume 2 of 5, continued

Document Description
Declaration of Adele Newberry Declaration of Tara Newberry Declaration of Caren Cafferata-Jenkins Declaration of Farrell Cafferata-Jenkins Declaration of Sara Geiger Declaration of Megan Lanz Declaration of Tara Borelli
Exhibit A – Campaign flyer relating to Question 2 Exhibit B – Letter from the Coalition for the Protection of Marriage relating to Question 2 (August 2002)

Dist. Ct. Dkt. No.
86-1

ER Pg. No.
224 228 232 236 240 245 249 251
. 253

Volume 3 of 5

Date Filed

Document Description

9/10/2012 Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 2 Declaration of Nancy F. Cott, Ph.D. Declaration of Letitia Anne Peplau, Ph.D. Declaration of M.V. Lee Badgett, Ph.D Declaration of George Chauncey, Ph.D.

Dist. Ct. Dkt. No.
86-2

ER Pg. No.
258

260 302 349 389

iii

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Date Filed

Volume 4 of 5 Document Description

9/10/2012

Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 3
Declaration of Gary M. Segura, Ph.D.
Declaration of Michael Lamb, Ph.D.

Dist. Ct. Dkt. No.
86-3

ER Pg. No.
442

444 498

8/10/2012 Transcript of Motion Hearing

69

640

Date Filed

Volume 5 of 5 Document Description

5/18/2012 Answer of Amy Harvey, Washoe County Clerk

5/18/2012 Answer of Diana Alba, Clark County Clerk

4/10/2012 Complaint for Declaratory and Injunctive Relief (minor names redacted)

--

U.S. District Court Docket Sheet

Dist. Ct. Dkt. No.
35

ER Pg. No.
673

34

691

1

695

--

725

iv

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs 17 18

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

APPENDIX TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, VOLUME 3

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 442

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1

APPENDIX, VOLUME 3

2

3 DECLARATION OF GARY M. SEGURA, PH.D. ................................................................... 260

4

Exhibit A ......................................................................................................................... 291

5

Exhibit B ......................................................................................................................... 311

6 DECLARATION OF MICHAEL LAMB, PH.D. ...................................................................... 314

7

Exhibit A ......................................................................................................................... 331

8

Exhibit B ......................................................................................................................... 344

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ER 443

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

DECLARATION OF GARY M. SEGURA, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

ER 444

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1

I, Gary M. Segura, Ph.D., hereby declare and state as follows:

2

PRELIMINARY STATEMENT

3 I. Expert Background and Qualifications

4

1. I am a Professor of American Politics in the Department of Political Science at

5 Stanford University. I have been retained by counsel for Plaintiffs as an expert in connection

6 with the above-referenced litigation. I have actual knowledge of the matters stated in this

7 declaration and could and would so testify if called as a witness. My background, experience and

8 list of publications from the last 10 years are summarized in my curriculum vitae, which is

9 attached as Exhibit A to this Declaration.

10

2. In the past four years, I have testified as an expert—either at trial or through

11 declaration—or been deposed as an expert in Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF)

12 (S.D.N.Y.), Dragovich v. U.S. Dep’t of the Treasury, CV 4:10-01564-CW (N.D. Cal.), Golinski v.

13 Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), Perry v.

14 Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), Gill v. Office of Pers. Mgmt., 699 F.

15 Supp. 2d 374 (D. Mass. 2010), Massachusetts v. United States HHS, 698 F. Supp. 2d 234 (D.

16 Mass. 2010), Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.),

17 and Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC (D. Haw.).

18

3. I received a Ph.D. in American Politics and Political Philosophy from the

19 Department of Political Science at the University of Illinois in Urbana-Champaign in 1992. My

20 tertiary field of emphasis was political methodology. My MA was also from the University of

21 Illinois in 1990, and I earned my undergraduate degree from Loyola University of New Orleans

22 in 1985.

23

4. I am also the founding Director of the Institute on the Politics of Inequality, Race

24 and Ethnicity at Stanford, and the founding co-Director of the Stanford Center for American

25 Democracy. In the latter role, I am one of the Principal Investigators of the American National

26 Election Studies for 2009-2013, the premier data-gathering project for scholars of American

27 elections.

28

5. My primary emphases in my scholarly research and writing are on public

ER 445

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1 attitudes, opinion, and behavior with respect to politics, and minority group politics. I have

2 taught classes on elections, public opinion, representation, Congress, Latino politics, gay and

3 lesbian politics, race and racism, the Voting Rights Act, inequality and American democracy,

4 interest group politics, philosophy of science, research design, and statistical analysis

5 (introductory and advanced).

6

6. To date, I have authored 44 article-length publications in professional journals

7 and edited volumes. Those journals include the American Political Science Review, the American

8 Journal of Political Science, Political Research Quarterly, Political Behavior, and the Journal of

9 Politics. I edited Diversity in Democracy: Minority Representation in the United States, published

10 by the University of Virginia Press in 2005. I am also the co-author of Latino Lives in America:

11 Making It Home, addressing new patterns of Latino life and politics in the U.S., published by

12 Temple University Press in 2010. I have a third book that was published in 2011 with

13 Congressional Quarterly Press, entitled “The Future is Ours:” Minority Politics, Political

14 Behavior, and the Multiracial Era of American Politics, a comparative exploration of political

15 behavior across American racial and ethnic minority groups and how such behaviors will shape

16 American party coalitions in the coming decades. I am the co-author of a fourth book, Latinos in

17 the New Millennium: An Almanac of Opinion, Behavior, and Policy Preferences, which was

18 published earlier this year.

19

7. I am the former President of the Midwest Political Science Association

20 (MPSA), the second-largest organization of American political scientists. In 2006, I was the

21 General Program Chair of the MPSA Annual Meeting. In 2011, I was elected Vice-President and

22 Program Chair of the Western Political Science Association for 2012-2013, and will serve as

23 President in 2013-14. In addition, I am a member and former Executive Council Member of the

24 American Political Science Association, member and former Executive Council Member of the

25 Western Political Science Association, and member of the Southern Political Science

26 Association. I serve or have served on the editorial boards of the American Journal of Political

27 Science, Journal of Politics, and Political Research Quarterly. I am a member of the Sexuality

28 and Politics organized section of the American Political Science Association, have served on the

ER 446

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1 Southern Political Science Association’s Committee on the Status of Gays and Lesbians, and was

2 part of the Executive Committee of the Sexuality Studies Program at the University of Iowa.

3

8. In preparing this declaration, I reviewed the Complaint in this case and the

4 materials listed in the attached list of sources (Exhibit B). I rely on those documents, in addition

5 to the documents specifically cited as supportive examples in particular sections of this

6 declaration, as support for my opinions. I have also relied on my years of experience in the field

7 of political science, as set out in my curriculum vitae (Exhibit A), and on the materials listed

8 therein.

9

9. I am being compensated for this effort at a rate of $250.00 per hour. I will be

10 compensated at $350.00 per hour for work performed while traveling, and I will be reimbursed

11 for expenses incurred while traveling in connection with my services. My compensation does not

12 depend on the outcome of this litigation, the opinions I express, or the testimony I provide.

13 II. Summary of Conclusions

14

10. Gay men and lesbians do not possess a meaningful degree of political power and

15 are politically vulnerable, relying almost exclusively on allies who are regularly shown to be

16 insufficiently strong or reliable to achieve their goals or protect their interests. The powerlessness

17 of gay men and lesbians is evidenced in numerous ways, and they are subject to political

18 exclusion and suffer political disabilities greater than other groups that have received suspect

19 classification protection from the courts.

20 III. Political Powerlessness in General

21

11. Any evaluation of the political power of a particular group in the United States

22 takes place in the context of a general understanding of the role that groups play in American

23 politics. From James Madison onward, American democracy frequently has been understood as a

24 pluralist system, in which competition among groups should ideally ensure that no one interest

25 becomes permanently dominant, or determines outcomes over a large number of decisions over a

26 long time. Madison believed that in an “extended” republic, coalitions commanding the day on

27 one issue would dissolve and be replaced by a different majority coalition on the next issue.

28

12. Modern political scientists generally approach pluralism through the concept of

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1 group interests. In what David Truman calls “disturbance” theory, the action of one group raises

2 challenges to the interests of another, causing the latter to react, and preventing a single interest

3 from dominating the political process. However, scholarly work on collective action (including

4 Mancur Olson among others) has found that not all groups have an equal opportunity to form and

5 act successfully to stave off threats to their interests. Differences in group size, resources, and

6 position in the class structure mean that some groups are inherently better positioned to act on

7 their own behalf than others, and some groups suffer a permanent disadvantage that places them

8 at the mercy of others. Reflecting this concern, eminent political scientist Elmer Eric

9 Schattschneider famously wrote, “The flaw in the pluralist heaven is that the heavenly chorus

10 sings with a strong upper-class accent.” Those with greater resources—time, money, and

11 numbers—exert greater influence on the political process. Minorities, by definition, are less

12 numerous than the majority.

13

13. The existence of societal prejudice against a particular group makes the

14 accumulation of resources, including finances and allies, more difficult. Moreover, that same

15 prejudice imposes an additional systematic burden because it tends to prevent that group’s

16 interests or policy preferences from receiving due consideration by other actors in the political

17 process, or causes that consideration to be sacrificed for the sake of political expediency.

18 Relative to minority groups that are otherwise similarly situated, a group that suffers such

19 prejudice does not receive an equivalent hearing in political contestation and debate.

20 Constitutions (and courts, through judicial review) play the role of the Madisonian corrective in

21 the pluralist system by protecting disadvantaged minorities from majoritarian excesses and from

22 effective exclusion from the political process.

23

14. Political power refers to a person’s or group’s demonstrated ability to extract

24 favorable (or prevent unfavorable) policy outcomes from the political system. In a well-

25 established and commonly cited definition, Robert Dahl wrote that A has power over B when A is

26 able to compel B to do something that B otherwise would not do. Thus, simple meetings of the

27 mind are insufficient to demonstrate the exercise of power. One does not have power over those

28

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1 who, for other reasons, already agree. For example, in the last national election, millions voted

2 for the same candidate I did, but this is not evidence of my electoral influence.

3

15. Power may also be reflected in the content of the political agenda, the issues that

4 are considered for legislative action. More powerful political actors face fewer legislative threats

5 to their interests than less powerful actors. The very circumstance of being forced to defend

6 interests against potential legislative action is a reflection of weakness rather than strength.

7

16. Groups that lack political power may, on occasion, receive pledges of support, or

8 even desirable legislative outcomes, that they themselves lack the power to compel through the

9 political process. An elected official may arrive at a position on a policy or proposal for their

10 own reasons unrelated to the specific communicated preferences of the minority group’s

11 constituents.

12

17. In some instances, the minority preferences may be entirely beside the point. For

13 example, an elected official may choose not to support a bill or policy proposal because he or she

14 may determine that the policy has implications adverse to other interests or because the costs of

15 implementation or enforcement of the policy are too great.

16

18. Positive legislative outcomes may also be the result of “affinity” or sympathy from

17 legislators in a position to bestow them. An elected official may decide not to support a bill or

18 policy proposal that discriminates against, singles out, or mistreats a minority group because he or

19 she independently believes that discriminating against, singling out, or mistreating the minority

20 group is wrong. But since these pledges or outcomes are not the result of an exercise of political

21 power by the minority group, they are not necessarily indicative of a group’s actual political

22 power. Moreover, they are significantly more vulnerable to reversal than those achieved through

23 the exercise of actual power. The affinity or sympathy that gave rise to the support could

24 dissipate or flatten, and is likely to be abandoned in the face of subsequent opposition, and in the

25 absence of sufficient power and influence of the minority group to counter opposition.

26

19. For example, in the 2011 legislative debate over the legalization of marriage for

27 same-sex couples in the Maryland House of Delegates, several members of the chamber who had

28 co-sponsored the legislation—and even some who had solicited endorsements and donations

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1 during the election cycle on this basis—ultimately voted against it in committee, publicly

2 announced their intention to vote against it on the floor, and subsequently did so. These

3 legislators’ apparent support in the earlier stage of the legislative process was costless, and

4 withered in the face of mobilized opposition and as an actual roll-call vote approached.

5

20. Following Dahl’s understanding, power can be illustrated only in comparison to a

6 baseline understanding of the decision-makers’ preferred actions. That is, to demonstrate that

7 power had been at work, one would need to observe successful instances of opinion change on the

8 part of a legislator in the face of positive or negative sanction or, alternatively, electoral change

9 precipitated by the ire of the dissatisfied constituency.

10

21. Apparent policy “agreement” is a particularly erroneous measure of power when

11 mere “agreement” requires no action on the part of the policy-maker. Again, the example of

12 candidates and officials endorsing a policy position, only to recant that support when an actual

13 vote approaches, illustrates the illusory nature of this form of support.

14

22. My opinion does not rest on the extreme assumption that in no place, at no time,

15 under any circumstances, have gay men and lesbians won any outcome.

16

23. Rather, my view is that one must weigh the relative impact of positive and

17 negative outcomes against the numerosity of moments of contestation and the insecure nature of

18 legislative gains. Policy “successes” should not be considered in isolation. While legislative

19 gains have occurred in some states and localities, numerous jurisdictions have adopted statutes

20 and constitutional amendments expressly in opposition to the interests of gay men and lesbians.

21 Even an assessment of “trend” requires consideration of the relative frequency of positive and

22 negative outcomes and the stakes involved in each of the policy debates.

23

24. Policy successes—whether at the state or federal level—are insecure so long as

24 the rights and legal status of lesbians and gays remains a subject of legislative action. We must

25 consider the frequency with which legislative gains have been repealed, turned back by the

26 voters, or foregone altogether, as well as the serious risk of repeal of legislative gains after each

27 election cycle in which political power shifts to a different political party. Recent policy

28 modifications, such as the adoption of a mechanism that led to the end of the “Don’t Ask, Don’t

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1 Tell” policy, illustrate precisely this dynamic. Several prospective Republican presidential

2 candidates who ran for office in the 2012 Republican primary expressed support for a repeal of

3 this legislation and the reinstatement of “Don’t Ask, Don’t Tell,” a view also shared by members

4 of the new House majority and Republican members of the Armed Services Committee.

5 Similarly, after the Maine legislature passed legislation in 2009 to provide same-sex couples

6 access to marriage, voters overturned the law a few months later by referendum. The Washington

7 and Maryland legislatures also enacted legislation this year to allow same-sex couples to marry,

8 but opponents of the legislation appear to have gathered sufficient signatures to subject both

9 measures to a referendum by popular vote in November 2012.

10

25. Even positive outcomes for gay men and lesbians that are secured through court

11 rulings are vulnerable to popular or legislative rollback. For example, in response to the Iowa

12 Supreme Court’s ruling that lesbians and gay men could not be excluded from the institution of

13 civil marriage, anti-gay forces like the National Organization for Marriage organized a nationally

14 funded campaign to defeat three of the members of that court in judicial retention elections in

15 November 2010, and were ultimately successful in defeating all three. The defeat of state jurists

16 facing retention elections has the dual effect of weakening that court’s majority—raising the

17 possibility of their reversing the previous decision—as well as chilling similar action by jurists in

18 other states whose judicial views might otherwise lead them to similar conclusions.

19

26. Furthermore, many of the policy “successes” that have benefitted gay men and

20 lesbians are measures that remediate or repeal express, de jure discrimination against the group.

21 Remediation of existing discrimination and disadvantage should be distinguished

22 from affirmative political power. For example, the adoption of hate crimes statutes inclusive of

23 sexual orientation, while a “success” for gay men and lesbians, was necessary only because there

24 is such prevalent bias-related violence against gay men and lesbians. While a fair assessment of

25 the relative political “power” of gay men and lesbians would include the adoption of such

26 legislation, it must also include a consideration of the underlying behavior and bias that gave rise

27 to the need for the legislation, which is an indicator of political powerlessness, not strength.

28

27. In light of the political disadvantages still faced by a small, targeted, and disliked

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1 group, I conclude that gay men and lesbians are powerless to secure basic rights within the

2 normal political processes.

3

28. Traditional markers of political powerlessness include systematic disadvantages

4 in the political process; the existence of significant prejudice, stigmatization, or de facto or de

5 jure second-class status; or an inability, alone or in concert with reliable coalition partners, to

6 secure basic rights or equal treatment from and within the political process. Here, I organize

7 traditional markers of political powerlessness into two categories: (1) manifestations of power

8 and powerlessness, on which gays and lesbians score poorly; and (2) factors that contribute to

9 political disadvantage, on which gays and lesbians—to their detriment—score high.

10 IV. Political Powerlessness of Gays and Lesbians

11

A. Manifestations of Political Powerlessness

12

29. Although an exhaustive catalog is impossible, the lack of meaningful political

13 power possessed by gay men and lesbians is reflected in numerous features of the nation’s laws,

14 institutions, and political history that are adverse to policy outcomes favored by and important to

15 gay men and lesbians. Some examples are discussed below. The political powerlessness of gay

16 men and lesbians is evidenced by their inability to bring an end to pervasive prejudice and

17 discrimination, and to secure desired policy outcomes and prevent undesirable outcomes on

18 fundamental matters that closely and directly impact their lives. Furthermore, the demonstrated

19 vulnerability of occasional and geographically confined policy gains to reversal or repeal is

20 indicative of a role played by “affinity” or sympathy, rather than the exercise of meaningful

21 political power by gays and lesbians.

22

(1) Absence of Statutory Protection/Presence of De Jure Statutory

Inequality 23

24

30. To date, there is no federal legislation prohibiting discrimination against gay men

25 and lesbians in employment, education, access to public accommodations, or housing. Indeed,

26 the history of the Employment Non-Discrimination Act (ENDA) provides a good example of gay

27 men and lesbians’ inability to compel policy outcomes for which they actively advocate. ENDA,

28 which would extend employment protections on the basis of sexual orientation (and in some

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1 versions, gender identity) has been introduced regularly since 1994 (with earlier versions existing

2 as far back as the 1970s), but has never passed both houses of Congress. It has failed to win

3 passage in both Republican- and Democratic-controlled Congresses. While the legislation

4 attracts many “co-sponsors,” one cannot test the reliability or strength of this support in the

5 absence of a recent and meaningful vote, or any realistic chance of its passage. The almost

6 complete absence of legislative progress on the issue suggests that, at the very least, it is not a

7 legislative priority for most legislators or the leadership of either party and, at worst, that the

8 “support” is rhetorical and without substance.

9

31. In 1996, Congress adopted the “Defense of Marriage Act,” or DOMA, which,

10 among other things, prevented even legally married same-sex couples from filing joint tax

11 returns, inheriting social security benefits, and obtaining all of the other rights afforded to married

12 individuals by federal law. This preclusion of rights acquisition was signed into law by a

13 Democratic president. Until recently, litigation against DOMA was actively resisted by both

14 Democratic and Republican administrations. Indeed, until February 2011, the Obama Justice

15 Department defended the constitutionality of DOMA despite the administration’s public support

16 for its legislative repeal. And the recent decision by the Department of Justice to cease its

17 defense of DOMA in court came only after one house of Congress passed into the control of the

18 opposite party, thus allowing that body the opportunity to intervene in the litigation. In short, it

19 was a change of course without immediate practical effect. The same is true for President

20 Obama’s and Vice President Biden’s recently announced personal support for the freedom to

21 marry for same-sex couples, and the addition of this position to the Democratic platform in 2012.

22 Their personal views and the platform have no practical effect on the exclusion from marriage

23 faced by same-sex couples across the country. More to the point, in no instance can we identify

24 an effect of lesbian and gay political power at work, here. Gay and lesbian voters were in no

25 position to insist on these changes, nor are they able to compel candidates across the party to

26 abide by them. Properly understood, they reflect affinity of the current President and the platform

27 committee, but not power.

28

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1

32. Despite a long-documented record of violence against gay men and lesbians,

2 attempts to extend existing federal hate crimes to include violent crimes based on the perceived

3 sexual orientation of the victim reached fruition only in 2009, after more than a decade of

4 advocacy by civil rights groups and supporters. Previously, gays and lesbians enjoyed virtually

5 no such federal protection. The legislative process that produced even this positive outcome is

6 illustrative of the political powerlessness of gay men and lesbians. To provide political cover, the

7 bill extending hate crimes protections to gays and lesbians was attached to and adopted as part of

8 a Defense Appropriations Bill. Even under these circumstances, 75% of Republican members of

9 the Senate voted against it. In the House of Representatives, 131 of 175 Republican members

10 voting (again, 75%) also opposed the hate crimes provision, illustrating at once the depth of

11 opposition to even ameliorative measures that benefit gay men and lesbians, as well as the

12 fragility of the institutional support for such outcomes. It is again worth noting that the impetus

13 for this legislation was the pattern of violence directed at gay men and lesbians, a circumstance

14 that provides important context for why the adoption of such a provision need not represent an

15 exercise of “power.”

16

33. In 1993, Congress codified the military’s “Don’t Ask, Don’t Tell” (DADT)

17 policy, under which lesbians and gay men were required to conceal their sexual orientation in

18 order to serve in the military, were investigated if suspected to be gay, and were discharged if

19 they disclosed or were found to be gay. Like the “Defense of Marriage Act,” this legislation was

20 signed by a Democratic president. In December 2010, Congress adopted a provision with an

21 administrative mechanism that led to the end of this policy. But the circumstances under which

22 even this positive outcome was achieved highlight the ultimate political powerlessness of gays

23 and lesbians. The DADT policy was in effect for over 17 years and, despite significant evidence

24 of abuse—including discharges initiated based on unsubstantiated allegations and third-party

25 accusations, and aggressive investigations beyond the bounds of the policy—and its cost to the

26 military, repeal had not seriously been considered. Both Republican and Democratic

27 administrations defended DADT in court. The current Democratic administration discouraged

28 legislative attempts to attach legislation repealing DADT to the Defense Authorization bill in the

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1 summer of 2010, or indeed at any point prior to the November 2010 election. There was no

2 legislative action on the policy for most of the 111th Congress, beyond committee hearings, and

3 despite widespread shifts in public opinion on this issue, no final action was taken prior to the

4 general election. When the matter was finally taken up during the lame-duck session, Republican

5 members offered fierce opposition in both legislative chambers. Of 175 votes cast in the House

6 by Republican Party members, 160 (or 91.4%) were against the provision to repeal DADT. In the

7 Senate, 31 of 39 Republican senators (79.5%) opposed the repeal. Like the hate crimes

8 legislation, the DADT repeal illustrates the limited access gay men and lesbians have to the

9 legislative process because of such stalwart opposition.

10

34. On the state level, there is no statutory protection against discrimination in

11 employment or public accommodations based on sexual orientation in twenty-nine states.

12

35. De jure inequality also exists in state constitutional law. In 1990, there was not a

13 single state constitutional provision that targeted gay men and lesbians for unequal treatment.

14 Today, in over three-fifths of the states there is now constitutionally-established inequality—that

15 is, the exclusion of gay men and lesbians from the civil institution of marriage is formally written

16 into the framework of government. Indeed, in many states, including Nevada, voters passed

17 ballot initiatives to amend their state constitutions to prohibit same-sex couples from marrying

18 even after the state legislature had already passed statutes barring same sex couples from

19 marrying. At least 10 additional states affirmatively exclude gay men and lesbians from civil

20 marriage by statute but have not yet amended their constitutions.

21

36. The presence of domestic partnership and civil union laws adopted in various

22 states, rather than viewed as an “accomplishment,” is best understood as an illustration of the

23 political weakness of gay and lesbian political efforts. These laws are enacted for one of two

24 reasons: either (1) civil marriage equality is politically unattainable in a state, either through the

25 array of existing political forces or the presence of a constitutional bar—which also illustrates the

26 weakness of lesbian and gay politics—or (2) the enactment of a domestic partnership or civil

27 union law would have the effect of complying with a court order to address gay and lesbian

28 exclusion, as was the case when Vermont originally adopted civil unions. Notably, in Vermont,

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1 the civil union law was the legislature’s way of not granting civil equality to lesbian and gay

2 citizens, despite a court order.

3

(2) Repeal or Pre-Emption of Legislative or Judicial Protections Through

Ballot Initiatives 4

5

37. Evidence from the past two decades in particular has demonstrated that gay men

6 and lesbians are especially vulnerable in the context of direct democracy. That is, positive

7 legislative outcomes achieved at the state and local levels are often insecure. Initiatives and

8 referenda frequently and effectively have been used to reverse or pre-empt the legislative grant at

9 the state or local levels of policies benefiting or protecting gays and lesbians. These ballot

10 initiatives can be broken into three groups: (1) those which overturn anti-discrimination policies,

11 (2) anti-marriage initiatives, and (3) restrictions on adoption.

12

38. Overturning anti-discrimination policies—The first wave of ballot actions on gay

13 and lesbian rights began in the early 1970s, but reached its peak in the 1990s. The most common

14 form was citizen initiatives to overturn municipal, county, or state extensions of anti-

15 discrimination policies to sexual orientation. These ballot actions were generally successful.

16 Legislative enactments were overturned in cities and counties across the country, including Santa

17 Clara County and the City of San Jose, California; Tacoma, Washington; Lewiston, Maine;

18 Lansing, Michigan; St. Paul, Minnesota; Wichita, Kansas; and perhaps most famously, Miami-

19 Dade County, Florida. A very small number of pro-gay votes also occurred and, not surprisingly,

20 did not fare as well, including the defeat of a voter attempt to compel the Davis, California City

21 Council to enact a gay rights ordinance. Haider-Markel and colleagues (2007) identified 143

22 votes from the 1970s through 2005, and found that gay and lesbian rights were defeated or

23 overturned in more than 70% of the cases—with the opponents of those rights prevailing at about

24 the same rate for local and state elections. The frequency of electoral and policy conflict over

25 non-discrimination statutes declined once the focus of the struggle increasingly centered on

26 preventing legal recognition of same-sex couples’ relationships. It is worth noting that many

27 anti-gay measures amended city charters or state constitutions to increase the burden on gays and

28 lesbians and their supporters for accomplishing policy change, such as Colorado’s Amendment 2,

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1 struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). The general

2 approach of such measures was to prohibit legislative action preemptively, and require that any

3 change be through popular, majority vote (with all of the disadvantages for minority rights this

4 carries). Most recently, the state of Tennessee adopted a new “anti-discrimination” law in May of

5 last year that specifically forbid any jurisdiction from enacting any anti-discrimination measures

6 that went beyond the protections in state law (which currently excludes lesbians, gay men,

7 bisexual and transgender people from all anti-discrimination protections). As a result, Nashville’s

8 two ordinances protecting gay men and lesbians from workplace discrimination were rendered

9 unenforceable. Similar measures are being advocated in other state legislatures.

10

39. Anti-marriage initiatives—In 2004 alone, anti-marriage equality ballot initiatives

11 passed in 13 states. To date, gay and lesbian marriage rights have been voted on at the state level

12 35 times, most recently in North Carolina on May 8, 2012. In only one instance did the pro-gay

13 position win, when Arizona’s Proposition 107, which also would have affected unmarried

14 heterosexual couples, failed in 2006; the constitutional amendment passed handily in 2008 when

15 it was narrowed to affect only gay men and lesbians. (Colorado, likewise, had two competing

16 anti-marriage initiatives, only one of which failed. The two appeared simultaneously on the

17 ballot, and although the harsher initiative failed, a more narrowly tailored effort passed on the

18 same day.)

19

40. In Maine, the state legislature managed to adopt marriage equality for same-sex

20 couples through statute. That policy success was short lived, as a popular majority was able to

21 overturn legislative action and reinstate the ban on marriage between same-sex couples through

22 statewide ballot on “Question 1.” This outcome was secured with massive intervention from

23 national anti-gay organizations, such as the National Organization for Marriage, as well as

24 substantial investment by religious organizations, including the Roman Catholic Church, whose

25 role was documented and touted in Catholic media sources. Campaign materials used by interests

26 opposing marriage equality were, in some instances, identical to those used in the campaign to

27 repeal marriage equality in California via Proposition 8, illustrating the vast and national reach of

28 those interests working against the interests of gay men and lesbians.

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1

41. Adoption—In five states, gay men and lesbians are prohibited from adopting

2 children. Some of these bans were adopted recently. For example, in 2008, Arkansas voters

3 adopted Arkansas’ Act One, which prohibited adoption by unmarried cohabitating couples, an act

4 conceived with regard to—and targeted at—same-sex couples. Act One was struck down in April

5 2011 as an unconstitutional infringement on the right to privacy by the Arkansas Supreme Court.

6 That decision notwithstanding, it is possible, and I think likely, that these initiatives or legislative

7 actions will appear elsewhere in the future. Indeed, Arizona recently enacted a statutory

8 preference for heterosexuals in the state’s foster and adoption programs. In the 2008 American

9 National Election Study, 47.6% of respondents nationwide felt that gay men and lesbians should

10 be prohibited from adopting. Since that percentage varies widely across states, I and others

11 expect initiatives to prohibit same-sex couples from adopting to start appearing in states where

12 the level of opposition exceeds 50%.

13

42. Thus, beyond the obstacles gay men and lesbians face in the traditional legislative

14 process, ballot initiatives further disadvantage them politically and have undone many of the

15 benefits they have obtained through legislative action. The success of anti-gay ballot initiatives,

16 moreover, makes it less likely that legislatures will enact pro-gay policies in the first place (Lax

17 and Phillips 2009), because elected officials will fear having their actions overturned by angry

18 constituents. Moreover, many gay and lesbian activists fear that the reactive post-initiative

19 policies will be worse than the status quo, thereby forcing them to consider whether foregoing

20 legislative policy change in the first instance is actually in the best interests of the group. For

21 example, several successful anti-marriage ballot initiatives also prohibited civil unions and

22 domestic partnerships, removing benefits that had existed prior to the enactment of the anti-gay

23 ballot initiatives.

24

43. Ballot initiative campaigns are frequently polarizing, are built on enormous sums

25 of money, and are waged primarily in the non-deliberative media of mass advertising. Small

26 minorities are even less able to protect their interests in these kinds of contests than they are in the

27 legislative process, which—as a result of legislative districts, institutional rules, coalitional

28 politics, and other factors—tends to give smaller minorities more of an opportunity to prevent

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1 undesirable outcomes. The passage of Proposition 8 in California and Question 1 in Maine both

2 illustrate that coalition politics are more easily broken down in popular vote situations where

3 misleading messages can circumvent community leaders and office holders.

4

44. Although the use of the initiative process against gay and lesbian policy goals is a

5 comparatively recent phenomenon, in the past, ballot initiatives were used to undo legislative

6 gains by immigrants, non-English speakers, African Americans, and minorities generally,

7 including overturning fair housing statutes, affirmative action programs, bilingual education, and

8 establishing English as an official language. Historians of the turn-of-the-century progressive

9 movement, when these direct democracy processes were established and written into the laws of

10 the western states, note the association of progressive reforms with anti-immigrant sentiment

11 (among other factors). Indeed, the progressive movement created the initiative process in order to

12 allow the majority to overturn decisions made by legislatures, which allow a greater role for

13 bargaining and coalitional politics. But the initiative process has now been used specifically

14 against gay men and lesbians more than against any other social group.

15

45. While there has been an increase in state and local jurisdictions with statutory anti-

16 discrimination protections for gay men and lesbians over the last two decades, these legislative

17 successes have been resisted strongly at the ballot box. Again, in three-fifths of the 50 states,

18 voters have amended their state constitutions to establish formal political and social inequality for

19 gays and lesbians. Similar proposals to amend the federal constitution have also been considered.

20

(3) Underrepresentation in Political Office

21

46. Gay elected officials have risen to various offices around the country. These

22 representatives may strive to advocate for gay and lesbian rights, but their numbers and limited

23 legislative impact on issues concerning those rights continue to demonstrate significant under-

24 representation and reliance on friendly, heterosexual representatives, over whom gay men and

25 lesbians hold no direct political power. For example, 85 state legislators nationwide are openly

26 gay, but the total number of state legislators nationwide is 7,382, so those 85 legislators represent

27 only 1.2% of the total. A recent study by the Williams Institute estimated the gay, lesbian and

28 bisexual population of the U.S. to be approximately 3.5%. Under even the most conservative

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1 estimates of gay and lesbian population share, this number indicates that gays and lesbians are

2 substantially under-represented. Prior to 1990, only four openly gay men or lesbians were

3 members of state legislatures.

4

47. There have been only seven openly gay members of Congress in history, and

5 only four—considerably less than one percent of all members—serve today (.9% of the House,

6 .75% of the entire Congress). Four of those seven were initially elected to the House with their

7 sexual orientation not publicly known. Only three members were first elected to the House

8 without the benefits of incumbency and with widespread public familiarity with their sexual

9 orientation, Jared Polis (D-CO), Tammy Baldwin (D-WI), and David Cicilline (D-RI). The first

10 two represent districts that are home to the flagship campus of their state universities—districts

11 that are typically more tolerant than others in the state. Gay and lesbian politicians are largely

12 confined to a single political party. Gay Republicans face an extremely difficult time, and the

13 few gay GOP elected officials who have emerged seldom last, most leaving power either through

14 primary challenges or retirement in the face of pressure. There has never been an openly gay

15 President, U.S. Senator, Cabinet level appointee, or Justice of the United States Supreme Court.

16

48. The percentages of gay and lesbian representation at the local level are lower still.

17 In 2010, the Gay and Lesbian Leadership Institute identified 288 local elected gay or lesbian

18 political officials serving on city councils, county commissions, school boards, and other local

19 offices (http://www.glli.org/out_officials), which is an insignificant fraction of the total number

20 of elected local officials. Over a decade ago, the Census Bureau reported that the number of

21 elected officials nationwide was slightly over 511,000. Subtracting members of Congress and

22 state legislatures, about whom I just reported, that leaves somewhat over 500,000 city, county,

23 school, and local board officials, and only 288 (or .05%) were identified as openly gay. These

24 officials are also concentrated in the coastal states and in Illinois. Some states have no openly-

25 gay elected officials at all, and many more, including Nevada, have just a very small handful.

26

B. Factors Contributing to Political Powerlessness

27

49. Numerous factors, often working in combination or in mutually reinforcing ways,

28 contribute to the political powerlessness of gay men and lesbians. Furthermore, many of these

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1 factors—including public and political hostility, prejudice, censorship, and religious and moral

2 condemnation—impose a political disability on gays and lesbians not suffered by groups of

3 comparable size and geographic dispersion. I begin this section with demographic considerations

4 and then discuss other, relational factors pointing to a degree of powerlessness that today is

5 unique to gays and lesbians.

6

(1) Small Population Size and Geographic Dispersion

7

50. The simplest way to secure political representation and exercise some degree of

8 influence over the political process is through numerical strength. The population strength of gay

9 men and lesbians is not close to being sufficient to obtain electoral predominance in a single

10 jurisdiction, let alone change the composition of a legislature or Congress. There are no

11 congressional districts with a majority population of gay and lesbian Americans. There are no

12 municipalities of any size with a majority gay and lesbian population. Even in broadly identified

13 gay-friendly communities, often places where migration to established lesbian and gay

14 communities has significantly increased the gay population above the national average, gays and

15 lesbians fail to reach majority status. A fair estimation of population suggests that gay men and

16 lesbians have sufficient numbers to determine (or substantially influence) the outcome of only a

17 few city council or county board seats, or state legislative districts, nationwide. At any level of

18 aggregation above the precinct or neighborhood, there is no place with a gay majority.

19

(2) Effect of HIV/AIDS Epidemic

20

51. The AIDS epidemic has set back the gay community’s potential for political

21 action, in ways that are both obvious and not obvious. Through 2005, the Centers for Disease

22 Control reported that just over 300,000 MSMs (a CDC term for men who have sex with men) had

23 died of HIV/AIDS. Another 217,000 were living with AIDS. The loss of 300,000 potential

24 voters, organizers, and leaders is a profound setback to a community whose population starts as a

25 fairly small share of the society. Harder to calculate are the lost financial contributions to the

26 political efforts of gay men and lesbians as a consequence of this epidemic. Gay men and

27 lesbians have both raised substantial amounts of money for HIV-related research and social

28 services, diverting resources that could otherwise be used to fight discrimination. Further, gay net

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1 wealth is negatively impacted by the loss of income on the part of those who have died, and the

2 partial loss of income and expenditures on healthcare from those still living with the disease.

3 Some political observers suggest that a decade or more of gay activism was lost to the cause of

4 gay equality as gay men and lesbians turned their attention to the more immediate threat of the

5 epidemic. While gay men and lesbians do not have the resources—reliable allies, elected

6 officials, votes, dollars, and organizational capacity—to be politically powerful, they have been

7 further disadvantaged by the fact that HIV destroyed such a large segment of the community and

8 consumed such a large portion of its resources. In addition to the direct resource and political

9 costs, AIDS offered heterosexuals a new reason to stigmatize gay people and same-sex relations,

10 and to resist political change that would have advanced gay equality.

11

(3) Violence

12

52. A crime can be classified as a hate crime when the victim is targeted because of

13 his or her identity—generally race, ethnicity, religious identity, gender, sexual orientation, or

14 disability status. Hate crimes are unique in that the effects of the crime are understood—indeed

15 intended—to reach beyond the person of the actual victim. The crime is best understood as an

16 expression of animus toward an entire group, and is an attempt to intimidate other members of

17 that group or otherwise constrain their future behavior. For example, racially motivated hate

18 crimes against individual target-group-members can simultaneously express racial prejudice

19 toward the individual, an entire group, and intimidate other group members from patronizing

20 businesses, moving to neighborhoods, enrolling in schools, or otherwise exercising their personal

21 liberties.

22

53. Though broad federal hate crimes protections for gays and lesbians came into

23 existence only recently, the FBI has collected data on hate crimes committed on the basis of

24 perceived sexual orientation for a number of years, at least from jurisdictions that have chosen to

25 report them, and the numbers are substantial. In the last year for which statistics have been

26 published, 2009, the total number of hate crime incidents was 6,604, and 1,482 (17.8%) of those

27 were on the basis of sexual orientation. In terms of single groups, only African Americans

28 endured more incidents, and since they are roughly three times the population share as gays and

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1 lesbians, the likelihood that any given gay or lesbian citizen experiences an attack (that is, the per

2 capita number of attacks) is considerably higher.

3

54. Reported hate crime incidents range from simple assault to murder. According

4 to the FBI’s statistics, in 2008, 73 percent of all hate crimes committed against gays and lesbians

5 included an act of violence; 71 percent of all hate-motivated murders in the United States were of

6 gay men and lesbians; and 55 percent of all hate-motivated rapes were against gays and lesbians.

7

55. FBI Hate Crimes reports for 2009 show that gay men, along with Jewish

8 Americans, are the most likely to be victimized by a bias crime. The Southern Poverty Law

9 Center (“SPLC” ) also suggests that steps forward in the cause of gay and lesbian equality seem

10 to be associated with a subsequent surge in antigay violence, pointing to data immediately in the

11 wake of the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003), in which the

12 Court struck down Texas’ sodomy law. The intimidation effect of hate crimes serves to

13 undermine the mobilization of gays and lesbians and their allies and to limit their free exercise of

14 simple economic and social liberties.

15

56. Recent years show no discernible decline in bias crimes against gays and lesbians.

16 FBI statistics reporting the number of hate crimes against specific groups shows that anti-gay acts

17 were as frequent in 2009 as they were in 2003.

18

(4) Invisibility

19

57. A unique aspect of gay and lesbian identity that distinguishes gays and lesbians

20 from other minority groups—to their political disadvantage—is their relative invisibility. The

21 scholarship on passing and self-identification suggests that members of repressed or targeted

22 groups who have the ability to pass unobserved in the majority population may choose to do so if

23 the costs of self-identification, in the form of family disapproval, physical threat, discrimination,

24 and their consequences, can be avoided. While this strategy avoids some risks of identification,

25 passing itself has a personal and a political cost.

26

58. The unwillingness to identify has several important implications for the question

27 of whether gay men and lesbians can meaningfully or effectively act on their own behalf

28

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1 politically. While not a panacea, social contact with gay men and lesbians is generally associated

2 with more sympathetic policy preferences. Invisibility undermines community support.

3

59. Mobilization levels among gay men and lesbians is lower than other groups but

4 is erroneously perceived to be higher. Mobilization can reasonably be understood to be an act of

5 self-identification, so those choosing to pass have foreclosed visible political action.

6

60. Since not all gay men and lesbians come out, the percentage of the gay and

7 lesbian population that is mobilized seems higher than it really is. Likewise, since those gay and

8 lesbian citizens who choose to self-identify are those whose economic and social position in

9 society is more secure—thereby lessening the risks of coming out—the resulting self-selection

10 bias results in a misperception of gays and lesbians as better educated, of higher income, and

11 otherwise “privileged.” This leads the public to believe—mistakenly—that gay men and lesbians

12 do not need of certain protections.

13

61. The public perception that gay men and lesbians are better educated or have

14 higher incomes is not accurate. Statistically, gays and lesbians do not have higher levels of

15 income and, when all gay men and lesbians are considered rather than only the self-identified, are

16 no better educated then the public at-large. My analysis of the 2004 National Exit Polls

17 demonstrates no difference between heterosexual voters and gay and lesbian voters on income

18 and education.

19

62. Opponents characterize the efforts of gay men and lesbians to gain statutory

20 protection as both unjustified and transgressive. Moreover, the public incorrectly perceives that

21 gay men and lesbians are more privileged than they actually are. This misperception both

22 mobilizes opponents and encourages complacency by potential allies.

23

63. In addition, the fact that sexual orientation is not directly visible may reduce the

24 group’s ability to attract allies. Potential heterosexual allies may reasonably fear being

25 misidentified as gay or lesbian, reducing the chance that they will mobilize on behalf of gays and

26 lesbians. The National Coalition of Anti-Violence Programs reported in 2008 that 9% of hate-

27 crimes reported to their participating agencies on the basis of perceived sexual orientation

28 victimize heterosexuals misidentified as gay or lesbian.

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1

64. Finally, invisibility exacerbates the problem of geographic and social dispersion,

2 making it more difficult for gay men and lesbians to find each other and mobilize politically.

3

(5) Censorship

4

65. In a variety of ways, gay men and lesbians are pressured to remain invisible, and in

5 several contexts, discussion of gay people and their relationships is prohibited or regulated.

6 Examples include the military’s long-standing and only recently repealed “Don’t Ask, Don’t

7 Tell” policy; legislation that prevented the National Endowment of the Arts from funding any art

8 depicting homoeroticism; rules that have prohibited federally funded AIDS education materials

9 from “promoting” homosexuality and requiring educators to advocate for abstinence from

10 extramarital sex, including same-sex couples’ intimacy; and efforts in several states to forbid the

11 mention of homosexuality in school health classes, or mandate the association of the term with

12 descriptors suggesting that it is not acceptable. This year, Tennessee considered legislation

13 banning the mention or discussion of homosexuality in primary grades, and Missouri has

14 considered a similar bill. And, Arizona, for example, prohibits any mention that same-sex

15 intimacy could be made “safe.”

16

(6) Public Hostility and Prejudice

17

66. Gay men and lesbians face severe hostility from non-gay citizens in many parts of

18 the country, and opinion data suggest that they are held in considerably lower regard than many

19 groups currently receiving the protection of heightened scrutiny from the courts. Such low public

20 regard makes it difficult for gay people to achieve significant political progress, implicitly

21 justifies legislative and electoral actions against gay men and lesbians, and severely hampers their

22 ability to attract donors, allies, coalition partners, or even public sympathy.

23

67. In each national election year, the American National Election Study (available at

24 electionstudies.org or the Inter-university Consortium for Political and Social Research website)

25 asks a representative sample of American citizens to gauge their “warmness” toward a particular

26 group. Political scientists call this instrument a “feeling thermometer” and the scale of each

27 ranges from 0 to 100, with 100 indicating strong warmness/fondness/positive views.

28

68. For Hispanics, approximately 40% of respondents rated their warmness at 50

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1 (midpoint) or less, and the average temperature was 65.2 (std.dev.21.0). For African Americans,

2 only 33% of respondents were at or below 50, and the mean temperature was 68.76 (std.dev.

3 20.2). For Catholics, 37% were at or below the mid-point and the mean temperature was 67.3

4 (std.dev 19.9), and for Jews, 43.9% of respondents were at or below the mid-point and the mean

5 warmth was 65.0 (std.dev.19.3). What is revealing about these summary numbers is their

6 similarity. They do vary, of course, but the percentage below the mid-point all group between 33

7 and 43.9%, the means of each group is between 65 and 69 degrees on the “thermometer,” and the

8 standard deviations (a statistical score that calculates how spread apart the responses are around

9 the mean) are between 19 and 20, indicating majority positive perception of each of these groups.

10

69. By contrast, gay men and lesbians fare far worse. Fully 65.4% of respondents

11 rated gays at or below the mid-point of 50 and the mean temperature response was 49.4 (std.dev

12 27.7), indicating that a majority of respondents do not perceive gay men and lesbians positively.

13 Almost two thirds of the respondents rate gays and lesbians at or below the mid-point, which is

14 almost twice that for African Americans and substantially higher than for the other groups. The

15 mean sentiment towards gay men and lesbians is 16 points lower than for Jews and Hispanics,

16 and 19 points lower than for African Americans. The standard deviation is also instructive, since

17 its size (almost half again larger than for the other groups) illustrates the level of polarization in

18 sentiment about gay men and lesbians.

19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///

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1

70. The following chart is illustrative of this point:

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

71. The trend in “warmness” toward gay men and lesbians has been

18 positive over the last several decades (as it has, in fact, for many groups in society).

19 Notwithstanding that trend, the relative placement of gay men and lesbians vis-à-vis other “out-

20 groups” in society suggest that public esteem remains a significant obstacle to political progress.

21 By any estimation, the public is less fond of gay and lesbian Americans than racial and ethnic

22 minorities and religious groups. In fact, the other groups with comparable levels of coolness

23 include Muslims (mean=50.3), atheists (mean=41), and undocumented aliens (mean=39.3). It is

24 revealing that 13.4% of respondents gave gay men and lesbians a score of zero, a percentage

25 exceeded only by scores for undocumented immigrants (15.4%) and atheists (18.6%).

26

(7) Political and Social Hostility

27

72. Gay men and lesbians face outspoken denunciation by elected officials in a

28 manner that would be unthinkable if directed toward almost any other social group. Hostility by

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1 public officials is often directly mirrored in the population. Furthermore, its public nature, even

2 when articulated by only a small segment of office-holders and officials, serves as a signal to the

3 broader population that these discriminatory attitudes are “acceptable” or reasonable within the

4 bounds of mainstream political discourse.

5

73. Gay men and lesbians have been described by a sitting U.S. Senator as “the

6 greatest threat to our freedom that we face today.” Another sitting senator, during his successful

7 campaign, openly called for gay men and lesbians to be banned from the classroom, a claim he

8 repeated last year at a public rally. A third senator compared same-sex marriage to marrying “a

9 box turtle.” He was subsequently reelected with a large margin. Same-sex intimacy has been

10 described by a sitting senator as morally equivalent to incest and bestiality. In 2010, the GOP

11 nominee for governor of New York responded to a question about marriage equality for same-sex

12 couples by saying that “we should stop pandering to pornographers and perverts.…” The social

13 and political disadvantage that flows from these very public and derisive comments is palpable.

14

74. While there may be pockets of tolerance here or there at the state and local levels,

15 and occasionally successful gay or lesbian candidates, in large swaths of the nation, political

16 condemnations of gay men and lesbians are not electorally costly and may even be used to gain

17 electoral support. It is difficult to identify many cases where an elected official was so damaged

18 by holding anti-gay positions that he or she lost public office on this basis, but there are countless

19 cases across the country where candidates felt advantaged by taking a particularly harsh anti-gay

20 viewpoint. In part, this is a consequence of the partisan and geographic distribution of views and

21 the nature of our legislative representation regime, but in part this is also a reflection of the fact

22 that pro-gay policies are a very low priority even among “allies” in the population who hold

23 generally positive views. Public contempt extends beyond elected officials to prominent national

24 religious leaders, who command the attention of political leaders as well as significant numbers of

25 the electorate.

26

(8) Unreliable Allies

27

75. The structure of the American party system is such that the path to pro-LGBT

28 equality policy change lies almost exclusively through the actions of one party. The increasing

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1 power of evangelical Christians and self-styled “Tea Party” advocates in the GOP has shifted this

2 party’s social policy further to the right and all but eliminated its once sizable tradition of

3 libertarianism. Many within the Republican Party in office (and the national Republican platform)

4 are openly hostile to gay and lesbian rights. The nearly complete disinterest of one party severely

5 disadvantages gay men and lesbians, since gay men and lesbians can thus be understood as

6 “captured” by the Democratic Party, that is, unlikely to bolt from the party or abstain from voting

7 for it in large numbers. Under these circumstances, the capturing party can take the political

8 support of the group for granted.

9

76. Although the Democratic Party is more supportive in its rhetoric, and the

10 Democratic platform speaks favorably regarding equality for lesbians and gay men, Democrats

11 have repeatedly shrunk from any extension of rights to gay men and lesbians at the federal level.

12 Democrats controlled the White House from 1993 to 2001, and the Congress until 1994 and from

13 2006 to 2010. Nevertheless, nondiscrimination statutes and federal recognition of state-

14 sanctioned marriages between same-sex couples remain undelivered. Again, “Don’t Ask, Don’t

15 Tell” was passed in a Democratically controlled Congress, and both it and the federal “Defense of

16 Marriage Act” were signed into law by a Democratic president.

17

77. This is not to say that gay men and lesbians have no allies at all. In recent months,

18 the governors of New York, Maryland and Washington signed marriage equality bills into law.

19 In the case of Washington State, the governor was not seeking reelection, but both other

20 governors have future political aspirations. Their assistance weighs positively on my assessment

21 of political resources of gays and lesbians. Their support, however, must be weighed against the

22 vast majority of state governors, however, who offer no such support—costly or cost-free—or

23 offer direct opposition to the political and social aspirations of gays and lesbians.

24

78. Gay men and lesbians are disadvantaged by the circumstance of party capture.

25 The almost complete indifference or hostility of Republican elected officials to the political

26 interest of gay men and lesbians largely confines their political opportunities for support and

27 public office to a single party, the Democrats. Democratic leaders, mindful of this complete

28 exclusion, are thus free to neglect and even occasionally set back gay and lesbian interests, secure

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1 in the knowledge that the other party does not represent a credible threat for peeling away voters.

2 Gay men and lesbians may be disenchanted with the quality and intensity of representation they

3 appear to receive from Democratic office-holders but, in a practical sense, have no alternative.

4 Taken together, Republican hostility and Democratic capture significantly weaken the political

5 voice of lesbians and gay men.

6

(9) Moral and Political Condemnation

7

79. While the pluralist framework envisions shifting majorities and rotation in office,

8 perceived Old Testament prohibitions of homosexuality serve to create, in many of America’s

9 religious communities, a permanent majority that believes same-sex intimacy is sinful and

10 immoral, and that it should be condemned and discouraged. The General Social Survey

11 (http://www.norc.org/GSS+Website/) regularly asks a representative sample of Americans to

12 evaluate whether homosexual relations are “wrong.” In 2008, those data show that 51.5% of

13 Americans still report that sex between two persons of the same sex is “always wrong,” while

14 another 10.3% agree that it is “sometimes” or “almost always” wrong. Moreover, the shift in the

15 direction of tolerance is neither large nor rapid. A decade ago, a module from the same survey

16 showed comparable numbers, at 56% and 11.8% respectively.

17

(10) Powerful, Numerous, and Well-Funded Opposition

18

80. The moral condemnation of homosexual acts fuels and supports political

19 opposition to protections and benefits for gays and lesbians. Campbell and Robinson (2007)

20 found that opposition to marriages between same-sex couples united leadership and core believers

21 across religious traditions. Similarly, the San Francisco Chronicle reported that the campaign in

22 favor of Proposition 8 was conceived and funded by a cooperative effort of the Roman Catholic

23 Archbishop of San Francisco and the senior leadership of the Mormon Church. These reports

24 were supported by documentary evidence and testimony introduced in the Perry v.

25 Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), trial in the Northern District of

26 California, in particular evidence of interstate coordination and fundraising within and between

27 global religious organizations. The biennial campaigns to pass Nevada’s constitutional

28 amendment prohibiting marriage for same-sex couples also received significant support from a

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1 number of churches, including the Mormon Church, which used its infrastructure to organize

2 voters and solicit campaign donations from church members. Churches provide a well-funded,

3 widely spread, untaxed medium in which individuals opposed to gay and lesbian policy goals can

4 disseminate political messages and campaign materials, as well as engage in fundraising.

5 Moreover, national religious organizations like Focus on the Family, the Traditional Values

6 Coalition, the Family Research Council, the National Organization for Marriage and other groups

7 provide a national network for pressuring elected officials, fundraising, message testing, media

8 dissemination and publication, mobilization, and coordination across states and jurisdictions.

9 This nationwide coordination, for example, explains how 13 statewide initiatives concerning

10 marriage for people in same-sex relationships appeared in a single year, 2004. Similarly, the

11 coordination of campaigns from California to Maine illustrates the national nature of these

12 efforts. Cahill (2007) documents the vast economic resources of these organizations and their

13 willingness to provide them to political efforts to prevent or reverse rights, benefits, or protections

14 for gay men and lesbians. Gay men and lesbians lack the political resources—including voting

15 numbers, cash, elected officials from the group, reliable allies, reach, or a favorable political

16 opportunity structure—to counter this kind of committed, organized opposition to their interests.

17

81. When scientific and learned societies have concluded that there is no evidentiary

18 or scientific bases to justify anti-gay biases or policies—whether with respect to same-sex

19 relationships or in evaluating gay men and lesbians as parents, as healthy, productive members of

20 society, and so forth—forces opposed to their political and social incorporation have formed

21 splinter or shadow organizations designed to give the appearance of scientific approval to

22 positions without broad scientific and professional support. For example, the American

23 Psychological Association long ago removed homosexuality from their diagnostic manual as a

24 psychologically disordered behavior, as the consensus in psychological research is that there is

25 little or no psycho-pathology associated with homosexual identity. Nevertheless, anti-gay forces

26 have founded the National Association of Research and Therapy for Homosexuality (NARTH),

27 which promotes efforts to change sexual orientation even though virtually all major mental health

28 professional organizations have adopted policy statements warning professionals and the public

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1 about these treatments. Likewise, the American Academy of Pediatrics has been publicly

2 supportive of gay and lesbian parenting, and states on their website that “A growing body of

3 scientific literature reveals that children who grow up with one or two gay and/or lesbian parents

4 will develop emotionally, cognitively, socially, and sexually as well as children whose parents are

5 heterosexual.” In response, anti-gay activists have established the “American College of

6 Pediatricians” which, despite their name, is actually an anti-gay organization with a fraction of

7 the Academy’s membership and no scientific or professional standing. These non-mainstream

8 organizations, with names designed to evoke a false sense of scientific authority, exist principally

9 to discredit the scientific consensus regarding gay people, unquestionably weakening their

10 political power.

11 V. Comparative Political Powerlessness

12

82. Gays and lesbians suffer an extreme degree of political vulnerability and

13 powerlessness compared to most other groups in society. Even groups that have obtained the

14 protection of heightened scrutiny from the Supreme Court possessed greater political power at the

15 time those decisions were handed down than gays and lesbians do today.

16

A. Gender

17

83. When the Supreme Court held that sex was a quasi-suspect classification in the

18 1970s, they were in a far superior political position compared to that held by lesbians and gays

19 today. Women are and were a majority of the population and, if they so choose, could

20 theoretically determine most political outcomes. While women do not have the same level of

21 political cohesion as many other groups, so that in many cases their majority status has not

22 proved decisive, the magnitude of their numbers is a source of potential power that politicians

23 cannot ignore. And in fact, by the time of the recognition of sex as a quasi-suspect classification

24 by the Court, women had achieved important victories in the political process, including the 1963

25 Equal Pay Act, coverage in the 1964 Civil Rights Act and its subsequent amendments, and

26 specific statutory and constitutional protection in several states.

27

84. Women have a number of other characteristics that enhanced their ability to

28 organize and act politically when compared with gays and lesbians. While sexism certainly

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1 existed (and still exists), and political activism could be costly, identity as a woman was not

2 socially controversial, did not attract familial scorn, and did not bar one from such a large range

3 of social institutions, though some institutions were exclusively male. Women could freely

4 identify one another, gather, coordinate, and act largely free of fear of repressive tactics. Both

5 political parties sought the support of women.

6

B. Race

7

85. Immediately in the wake of the Civil War, three amendments to the federal

8 constitution established de jure legal equality for African-Americans and officially barred states

9 from violating equal protection. Though this guarantee of equality had seldom been meaningfully

10 enforced, it was nonetheless a de jure status superior to that now held by lesbians and gay men.

11 In addition, as early as 1941, President Roosevelt issued Executive Order 8802 prohibiting race

12 discrimination in contracting and employment in companies doing business with the U.S. In

13 April of this year, President Obama declined to sign an executive order barring sexual orientation

14 discrimination among federal contractors. Through court action and the social movement of the

15 1950s and 1960s, African Americans (and later Latinos) achieved a rollback of Jim Crow

16 segregation laws and established a statutory regime of equality in employment, education, and

17 housing. Again, this was more promise than practice, but it was a statutory circumstance superior

18 to that of lesbians and gay men today.

19

86. In the 1940s and 1950s, African Americans and other racial and ethnic minorities

20 had similar disadvantages to gays in terms of resources and social sanction, but with far greater

21 numbers (and in some instances majorities), they have been able to claim a more meaningful

22 share of political representation and policy responsiveness. Even before the passage of the Civil

23 Rights Act of 1964 and Voting Rights Act of 1965, there were 5 black members of Congress and

24 over 100 elected officials nationwide. Today, 73 people of color serve in the House of

25 Representatives. African Americans, Latinos, and Asian Americans have been elected governors

26 and big city mayors. They form outright majorities in dozens of jurisdictions and approximately

27 60 House districts through the last census. Rather than serve as an impediment, most (though

28 admittedly not all) religious institutions express support for the principle of racial equality and the

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1 church in minority communities, rather than serving as an impediment to political progress, is a

2 locus for identification and mobilization.

3

4

Signed under penalty of perjury under the laws of the United States this 5th day of

5 September, 2012.

6

7

8

__________________________________

9

Gary M. Segura, Ph.D.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Exhibit A

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Curriculum Vitae Gary Michael Segura

Department of Political Science, Stanford University

100 Encina Hall West

Stanford, CA 94305-6044

650-723-3583

E-mail: segura@stanford.edu

EDUCATIONAL AND PROFESSIONAL HISTORY

1/8/12

Education:
1985-1986 & 1988-1992

University of Illinois at Urbana-Champaign Ph.D., Department of Political Science, 1992. A.M., Department of Political Science, 1989.

1981-1985

Loyola University of the South, New Orleans, LA B.A., Magna Cum Laude, Presidential Scholar Department of Political Science, 1985.

Academic Experience:

2008-present

Professor, Department of Political Science, and Chair of Chicana/o Studies, Center for Comparative Studies in Race and Ethnicity, Stanford University

2007-2008

Professor, Department of Political Science, and since 2006, Director, University of Washington Institute for the Study of Ethnicity, Race and Sexuality, University of Washington.

2005-2007

Associate Professor, Department of Political Science, University of Washington.

2001-2005

Associate Professor, Department of Political Science, University of Iowa.

1999-2001

Associate Professor, School Politics and Economics, Claremont Graduate University.

1996-1999

Assistant Professor, School Politics and Economics, Claremont Graduate University.

1992-1996

Assistant Professor, Department of Political Science, University of California, Davis.

1991-1992

Acting Assistant Professor, Department of Political Science, University of California, Davis.

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SCHOLARSHIP
Publications
Books:
Latinos in the New Millennium: An Almanac of Opinion, Behavior, and Policy Preferences. 2012. Cambridge: Cambridge University Press. With Luis Fraga, John Garcia, Rodney Hero, Michael JonesCorrea and Valerie Martinez-Ebers.
"The Future is Ours:" Minority Politics, Political Behavior, and the Multiracial Era of American Politics. 2011. Washington, DC: Congressional Quarterly Press. With Shaun Bowler.
Latino Lives in America: Making It Home. 2010. Philadelphia: Temple University Press. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez-Ebers.
Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. Edited with Shaun Bowler.
Refereed Articles:
“Latino Public Opinion and Realigning the American Electorate.” 2012. Dædalus. Forthcoming.
“Who’s the Party of the Working Class? Economic Populism and the Public’s Beliefs about American Political Parties.” Forthcoming, June, 2012. Political Behavior. With Stephen P. Nicholson.
“Assimilation, Incorporation, and Ethnic Identity in Understanding Latino Electoral and NonElectoral Political Participation.” 2011. Political Research Quarterly, 64, (1): 172-184. With Wayne Santoro.
“Hope, Tropes, and Dopes: Hispanic and White Racial Animus in the 2008 Election.” 2010. Presidential Studies Quarterly, 40 (3): 497- 514. With Ali Valenzuela.
“Should They ‘Dance with the One Who Brung ‘Em?’ Latinos and the 2008 Presidential Election.” 2008. PS: Political Science and Politics, 41 (4):753-760. With Matt A. Barreto, Luis R. Fraga, Sylvia Manzano, and Valerie Martinez-Ebers.
“Race and the Recall: Racial Polarization in the California Recall Election.” 2008. With Luis R. Fraga. American Journal of Political Science 52 (2): 421-435.

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“Commentary on ‘Citizens by Choice Voters by Necessity: Long Term Patterns in Political Mobilization by Naturalized Latino Voters’.” With Adrian D. Pantoja and Ricardo Ramirez. 2008. Political Research Quarterly, 61 (1): 50-52
“All Politics are Still Local: the Iraq War and the 2006 Midterm Election.” 2008. With Scott S. Gartner. PS: Political Science and Politics, 41(1): 95-100.
“What Goes Around, Comes Around: Race, Blowback, and the Louisiana Elections of 2002 and 2003.” 2006. With Christina Bejarano, graduate student. Political Research Quarterly, 60(2): 328337.
“Su Casa Es Nuestra Casa: Latino Politics Research and the Development of American Political Science.” American Political Science Review, 100(4): 515-522. 2006. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez-Ebers.
“Comparative Ethnic Politics in the United States: Beyond Black and White.” Annual Review of Political Science, 9: 375-395. 2006. With Helena Alves Rodrigues.
“Immigration and National Identity: An Introduction to a Symposium on Immigration and National Identity.” Perspectives on Politics, 4(2): 277-278. 2006.
“Culture Clash? Contesting Notions of American Identity and the Effects of Latin American Immigration.” Perspectives on Politics, 4(2): 279-287. 2006. With Luis Fraga.
“Explaining the Latino Vote: Issue Voting among Latinos in the 2000 Presidential Election.” Political Research Quarterly, 59(2): 259-271. 2006. With Stephen P. Nicholson and Adrian D. Pantoja.
“Earthquakes and Aftershocks: Tracking Partisan Identification amid California's Changing Political Environment.” American Journal of Political Science, 50(1): 146-159. 2006. With Stephen P. Nicholson and Shaun Bowler.
“A Symposium on the Politics of Same-Sex Marriage: An Introduction and Commentary.” PS: Political Science and Politics, 38 (2). April 2005. Served as Symposium Editor.
“Racial/Ethnic Group Attitudes Toward Environmental Protection in California: Is “Environmentalism” Still a White Phenomenon?” Political Research Quarterly 58(3):435-448. 2005. With Matthew Whittaker (graduate student) and Shaun Bowler.
“War and the Fate of Legislators: War Casualties, Policy Positions, and U.S. Senate Elections During Vietnam.” Political Research Quarterly, 53 (3):467-477. 2004. With Scott S. Gartner and Bethany A. Barratt.
“The Mobilizing Effect of Majority-Minority Districts on Latino Turnout.” American Political Science Review, 98(1): 65-76. 2004. With Matt Barreto and Nathan D. Woods.
“Fear and Loathing in California: Contextual Threat and Political Sophistication Among Latino Voters.” Political Behavior, 25 (3): 265-286. 2003. With Adrian D. Pantoja.

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“Does Ethnicity Matter? Descriptive Representation in the Statehouse and Political Alienation Among Latinos.” Social Science Quarterly, 84(2): 441-460. 2003. With Adrian D. Pantoja.
“The Paradox of Presidential Approval: The Mixed Blessing of Divided Government to Presidential Popularity.” Journal of Politics, 64 (3): 701-720. 2002. With Stephen P. Nicholson and Nathan D. Woods, graduate student.
“Citizens by Choice, Voters by Necessity: Patterns in Political Mobilization by Naturalized Latinos.” Political Research Quarterly, 54 (4): 729-750. 2001. With Adrian D. Pantoja and Ricardo Ramirez.
“Race, Casualties and Opinion in the Vietnam War.” Journal of Politics, 62 (1): 115-146. 2000. With Scott S. Gartner.
“Midterm Elections and Divided Government: An Information-Driven Theory of Electoral Volatility.” Political Research Quarterly, 52 (3): 609-630. 1999. With Stephen P. Nicholson.
“War, Casualties, and Public Opinion.” Journal of Conflict Resolution, 42: 278-300, 1998. With Scott S. Gartner.
“Dynamics of Latino Partisanship in California: Immigration, Issue Salience, and Their Implications.” Harvard Journal of Hispanic Politics, 10: 62-80, 1997. With Dennis Falcon, graduate student, and Harry Pachon.
“All Politics are Local: The Effects of Local Losses on Individual Attitudes Towards War.” Journal of Conflict Resolution, 41: 669-694, 1997. With Scott S. Gartner and Michael Wilkening, graduate student.
“Appearances Can Be Deceptive: Self-Selection, Social Group Identification, and Political Mobilization.” Rationality and Society, 9 (2): 131-161, 1997. With Scott S. Gartner.
“Cross National Variation in Political Sophistication of Individuals: Capability or Choice?” Journal of Politics, 59 (1): 126-147, 1997. With Stacy B. Gordon, graduate student.
“Sequential Choices and Partisan Transitions in U.S. Senate Delegations: 1972-1988.” Journal of Politics, 57(1):86-100, 1995. With Stephen P. Nicholson, graduate student.
“Endogeneity, Exogeneity, Time, and Space in Political Representation.” Legislative Studies Quarterly, 20(1): 3-22, 1995. With James H. Kuklinski.
Book Chapters and Invited Articles:
“The Browning of America.” Democracy Journal, June 2012.
“Restarting History.” In Grusky, David et al., editors, Occupy the Future. Cambridge MA: MIT Press. 2012.

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“Latino Electoral Participation.” With Jeanette Carmen Bustamante. For the Encyclopedia of Latinos and Latinas in the United States, 2nd Edition, Oxford University Press. 2012.
“The Efficacy and Alienation of Juan Q. Public: The Immigration Marches and Orientations Toward American Political Institutions.” In Bloemraad, Irene and Kim Voss, (eds.), Rallying for Immigrant Rights. Berkeley: University of California Press, 2011. With Francisco Pedraza and Shaun Bowler.
“The Immigration Aftermath: Latinos, Latino Immigrants, and American National Identity.” Forthcoming in David Coates and Peter Siavelis (eds), Getting Immigration Right: What Every American Needs to Know. 2009. Dulles VA: Potomac Books. With Luis R. Fraga.
“Hearing Footsteps: Latino Population Growth and Anticipated—but not Quite Present—Political Effects in Emerging Communities.” In de la Garza, Rodolfo O., Louis DeSipio, and David L. Leal (eds.). Beyond the Barrio: Latinos in the 2004 Elections. 2008. South Bend, IN: University of Notre Dame Press. With Christina Bejarano.
“An Evaluation of the Electoral and Behavioral Impacts of Majority-Minority Districts.” In Levi, Margaret, Jack Knight, James Johnson, and Susan Stokes, eds. Designing Democratic Government. 2008. New York: Russell Sage Foundation. With David I. Lublin.
“Majority-Minority Districts, Co-ethnic Candidates, and Mobilization Effects.” In Henderson, Ana, Voting Rights Act Reauthorization of 2006: Perspectives on Democracy, Participation, and Power. 2007. Berkeley: Institute for Governmental Studies Public Policy Press. With Nathan D. Woods.
“A Place at the Lunch Counter: Latinos, African-Americans, and the Dynamics of American Race Politics.” In Meier, Kenneth, Rodolfo Espino, and David Leal, eds., Latino Politics: Identity, Mobilization, and Representation. 2007. Charlottesville: University of Virginia Press. With Helena A. Rodrigues.
“Latino Political Participation.” With Helena A. Rodrigues. For the Encyclopedia of Latinos and Latinas in the United States, Oxford University Press. 2005.
“Social, Political and Institutional Context and the Representation of Minority Americans.” In Segura, Gary M. and Shaun Bowler, eds. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. With Shaun Bowler.
“Agenda Change and the Politics of Latino Partisan Identification.” In Segura, Gary M. and Shaun Bowler, eds. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. With Stephen P. Nicholson.
“Unquestioned Influence: Latinos and the 2000 Election in California.” In Rodolfo de la Garza and Louis Desipio, eds., Muted Voices: Latino Politics in the 2000 Election, New York: Rowman and Littlefield. 2004. With Luis Fraga and Ricardo Ramirez.
“Targets of Opportunity: California's Blanket Primary and the Political Representation of Latinos.” In Cain, Bruce E. and Elisabeth R. Gerber, eds., Voting at the Political Fault Line: California's

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Experiment with the Blanket Primary, 248-269. 2002. Berkeley: University of California Press. With Nathan D. Woods, graduate student.
“Hispanics, Social Capital and Civic Engagement.” National Civic Review 90 (1): 85-96. 2001. With Harry Pachon and Nathan D. Woods, graduate student.
“Institutions Matter: Local Electoral Laws, Gay and Lesbian Representation, and Coalition Building Across Minority Communities.” In Ellen Riggle and Barry Tadlock, eds., Gays and Lesbians in the Democratic Process, 220-241. 1999. New York: Columbia University Press
Book Review:
Review. Who Are We? By Samuel Huntington. Perspectives on Politics, 3(3): 640-642.
Review. Congress and the Rent Seeking Society, by Glenn Parker, Journal of Politics, 59: 591-593, 1997.
Other Publications:
“An Update on the Status of Latinos y Latinas in Political Science: What the Profession Should be Doing.” PS: Political Science and Politics, XXXIII (4): 899-903, December, 2000. With Valerie Martinez-Ebers, Manuel Avalos, Carol Hardy-Fanta, Linda Lopez, and Ronald Schmidt, Sr.
Under Review:
“Behavioral and Attitudinal Components of Immigrant Political Incorporation.”
“Democratic Accountability, the Separation of Powers, and Government Approval: How Party Government Shapes Approval of American National Institutions.” With Stephen P. Nicholson.
“Race Matters: Latino Racial Identities and Political Beliefs.” With Stephen P. Nicholson and Adrian Pantoja.

Awards:
2010 Elected Fellow, American Academy of Arts and Sciences
2007 Midwest Latino Caucus Best Paper Award for the Best Paper Presented at the Annual Meeting, Midwest Political Science Association
2005 Adaljiza Sosa-Riddell Award for Exemplary Mentoring of Latino/a Faculty, American Political Science Association, Committee on the Status of Latinos y Latinas.
2004 Charles Redd Award for Best Paper on the Politics of the American West presented at the 2003 Annual Meeting, Western Political Science Association.

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External Grants and Fellowships:
2009 National Science Foundation. “American National Election Studies, 2009-2013.” $10,000,000 with Simon Jackman and Vincent Hutchings (Jointly with the University of Michigan).
2007 National Science Foundation. “Spanish Translation and Hispanic Over-sample: American National Election Study.” $722,657 with Matt A. Barreto.
2006 National Science Foundation. “Supplemental Grant: Contextual Variation and Latino Political Life.” $33,754.
2006 Latino Policy Coalition. “Understanding Latino Policy Challenges in 21st Century America.” $40,000 with Matt A. Barreto.
2005 National Science Foundation. “Contextual Variation in Latino Political Life.” $173,600, With Michael Jones-Correa, on behalf of the Latino National Survey team. Divided between University of Washington and Cornell University.
2002-2005 Private Foundation Grants for the Latino National Survey. The Latino National Survey is a collaborative project with Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez. The project combines a 40-minute survey of 8600 Latino residents of the United States with an extensive array of contextual and demographic data on place of residence.
2005 Wm. K. Kellogg Foundation. “Latino National Survey.” $100,000
2005 Carnegie Corporation. “Latino Incorporation in a Changing America: The Latino National Survey.” $100,000.
2004 Joyce Foundation. “Latino Survey in Illinois and Iowa.” $100,000.
2004 Russell Sage Foundation. “Latinos Immigrants in New Receiving Areas.” $150,000.
2004 Irvine Foundation. “Latinos in California Survey.” $150,000.
2004 Ford Foundation. “Latino National Survey.” $200,000.
2003 Ford Foundation. “Public Policy Advocate Outreach for the Latino National Survey.” $30,000.
2002 William and Flora Hewlett Foundation. “Latino National Survey Planning Grant.” $125,000.
2002 Annie E. Casey Foundation. “Latino National Survey Working Group,” under the auspices of the Inter-University Program in Latino Research. $20,000.

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2000 National Science Foundation, SES-0079056. “The Demographics of Pandora’s Box: An Empirical Investigation of the Determinants of Who Dies in War.” With Scott S. Gartner. Total Grant, $215,750, divided between the two institutions.
2000 Haynes Foundation Faculty Fellowship. “The Blanket Primary and Latino Influence in California’s Republican Party.” $10,000
1999 Haynes Foundation Faculty Fellowship. “Demography, Representation, and Institutions in Southern California Governments.” $8000
1997 Public Policy Institute of California. “Latino Representation and Local Electoral Laws in California.” $25,000
1996 Pew Charitable Trusts. “Social Capital, Civic Engagement and Political Participation in Latino Neighborhoods.” With Rodolfo de la Garza and Harry Pachon. $165,000.
1995 National Science Foundation, SBR-9511527. “Casualties of War and Politics: American Electoral Politics and the Korean and VietnamWars.” With Scott S. Gartner. $72,000.
1989 National Hispanic Scholar Fellowship
1988 National Hispanic Scholar Fellowship
1983 Harry S. Truman Foundation Fellowship
Recent Internal Grants and Fellowships: 2005 University of Washington’s President’s Diversity Appraisal Implementation Fund.
Grant to establish the “Washington Institute for the Study of Ethnicity and Race,” on behalf of the Department of Political Science. March.
2003 Obermann Summer Interdisciplinary Research Grant. “Assimilation and Political Incorporation: An Examination of Mexicans, Puerto Ricans, and Cuban Americans.” With Wayne Santoro, Assistant Professor of Sociology, UI, Summer.
2002 UI Faculty Scholar Award.
2002 Obermann Interdisciplinary Research Semester, “Sex, Politics and Economics.” Fall.
2002 UI Career Development Award, awarded for Spring, 2003.
1994 Undergraduate Instructional Improvement Grant, “Politics and Homosexuality.”

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Conference Presentations (10 years):
“Partisan Deviation, Economic Self-Interest, and the Behavior of High Income Voters.” With Shaun Bowler. Presented at the Annual Meeting of the American Political Science Association, Seattle, WA, September 1-4, 2011.
“What They Think Depends on Who You Ask: Methodological Errors in Survey Estimates of Latino Two-Party Vote.” With Matt A. Barreto. Presented at the Annual Meeting of the American Political Science Association, Seattle, WA, September 1-4, 2011.
“Minority Political Orientations, Policy Opinions, and American Values.” With Shaun Bowler. Presented at the Annual Meeting of the Western Political Science Association, San Antonio, TX, April 21-23, 2011.
“Race Matters: Racial Identity and Party Identification among Latinos.” With Stephen P. Nicholson and Adrian Pantoja. Presented at the Annual Meeting of the Western Political Science Association, San Antonio. TX, April 21-23, 2011.
“The Problem with Palo Alto: Partisan Deviation, Economic Self-Interest, and the Behavior of High Income Voters.” With Shaun Bowler. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, March 31-April 3, 2011.
“In-Group Identification and Out-Group Attitudes: Latinidad and Relations with Whites and African Americans.” Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 6-8, 2011.
“Race and the Obama Presidency.” With Matt A. Barreto and Ali Valenzuela. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, September 1-5, 2010.
“Everything Jim Crow is New Again: Arizona, Racial Construction, and the Political Ramifications of Immigrant-Bashing for Short-Term Political Gain.” Presented at the Workshop on Inequality, United States Study Centre at the University of Sydney, Australia, June 2010.
“Gender Attitudes, Race Differences and Gay Rights: Is Race Really a Key Predictor of Attitudes Towards Homosexuals.” Presented at the Annual Meeting of the Midwest Political Science Association, Chicago IL, April 21-25, 2010.
“Do NES Models of Voting Apply to Blacks and Latinos? Results from the 2008 NES Oversamples.” Presented at the Annual Meeting of the Western Political Science Association, San Francisco, CA, March 30-April 3, 2010. With Matt A. Barreto.
“Latino Identification in the American Polity: Characteristics and Consequences of Multiple Political Selves.” Presented at the National Conference on Latino Politics, Power, and Policy: Findings from the Latino National Survey. Brown University, Providence, RI, October 24, 2009.
“The Black-Brown Divide that Wasn’t: Comparing Latino, Black, and White Voters in the 2008 Election.” With Matt A. Barreto. Presented at the Mershon Center, Ohio State Conference

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on the 2008 Election, Columbus, OH, October 2-3, 2009.
“Identity Research in Latino Politics.” Presented as part of the APSA Short Course on Latino Politcs at the Annual Meeting of the American Political Science Association, Toronto, ON, September 2-6, 2009.
“Who’s the Party of the Working Class? Economic Populism and the Public’s Beliefs about American Political Parties.” With Stephen P. Nicholson. Presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 28-31, 2008.
“Revisiting the Politics of Economic Populism: Class, Faith, and Party Images in the United States.” With Stephen P. Nicholson. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 3-6, 2008.
“Evaluating a Cost-Driven Theory of Wartime Public Opinion.” With Scott S. Gartner. Presented at the Annual Meeting of the Western Political Science Association, San Diego, CA, March 20-22, 2008.
“Calculated Support: Hawks, Doves, Evaluators, and the War in Iraq.” With Scott S. Gartner. Presented at the Annual Meeting of the American Political Science Association, Chicago, IL, Aug 30-Sep. 2, 2007.
“Transnational Linkages, Generational Change, and Latino Political Engagement.” Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 12-15, 2007. Winner of the Midwest Latino Caucus’ Best Paper Award for the Best Paper on Latino Politics presented at the Annual Meeting.
“The Efficacy and Trust of Juan Q. Public: How the Immigration Marches Reflect Surprising Support for American Institutions of Governance.” With Shaun Bowler and Francisco Pedraza. Presented at the Annual Meeting of the Western Political Science Association, Las Vegas, NV, March 8-10, 2007.
“LATINO NATIONAL SURVEY: Rollout Presentation: Coming to Grips with Latino Identity.” Presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA, Aug 31- Sep 3, 2006.
“Majority-Minority Districts, Co-ethnic Candidates, and Mobilization Effects.” With Nathan D. Woods. Presented at the University of California, Berkeley, Warren Institute on Civil Rights, Conference, February 9, 2006, Washington, DC.
“Divided Government and Public Attitudes Towards Institutions.” With Stephen P. Nicholson. Paper presented at the Annual Meeting of the Southern Political Science Association, Atlanta, GA, January 5-7, 2006.
“An Evaluation of the Electoral and Behavioral Impacts of Majority-Minority Districts.” With David I. Lublin. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 4, 2005.

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“Race Matters: Latino Racial Identities and Political Beliefs.” With Stephen P. Nicholson and Adrian Pantoja. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 4, 2005.
“Approval of Governmental Institutions and Party Government.” With Stephen P. Nicholson. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 7-10, 2005.
“From Radical to Conservative: Civil Unions, Same-sex Marriage, and the Structure of Public Attitudes.” With Ken Cimino. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 7-10, 2005.
“A General Theory of War Casualties and Public Opinion.” With Scott S. Gartner. Presented at the Annual Meeting of the Western Political Science Association, Oakland, CA, March 16-19, 2005.
“Hearing Footsteps: Latino Population Growth and Anticipated—but not Quite Present—Political Effects in Emerging Communities.” With Christina Bejarano, graduate student. Presented at the University of Texas conference on Latinos in the 2004 Election, February 11-12, 2005.
“What Goes Around, Comes Around: Race, Blowback, and the Louisiana Elections of 2002 and 2003.” With Christina Bejarano, graduate student. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 6-8, 2005.
“Democratic Accountability, the Separation of Powers, and Divided Government: Explaining Presidential and Congressional Approval.” With Stephen P. Nicholson. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 68, 2005.
“Race and the Recall: The Role of Race in the California Recall Election.” With Luis R. Fraga. Presented at the Annual Meeting of the American Political Science Association, Chicago, IL, September 1-5, 2004.
“A Place at the Lunch Counter: Latinos, African-Americans, and the Dynamics of American Race Politics.” With Helena A. Rodrigues. Presented at the conference “Latino Politics: The State of the Discipline,” Texas A&M University, College Station, TX, April 30-May1, 2004.
“Assimilation, Incorporation, and Ethnic Identity in Understanding Latino Electoral and NonElectoral Political Participation.” With Wayne Santoro. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-18, 2004
. “Partisan Gerrymandering and Its Influence on Voter Turnout.” With Matt Barreto and Nathan D,
Woods. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-18, 2004.
“A New Generation of Latino Voices: Identity, Attitudes, and Participation.” With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez. Presented at the Annual Meeting of the Western Political Science Association, Portland, OR, March 11-14, 2004.

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“Earthquakes and Aftershocks: Tracking the Macro-partisan Implications of California's Recent Political Environment.” With Stephen P. Nicholson and Shaun Bowler. Presented at the Annual Meeting of the Western Political Science Association, Portland, OR, March 11-14, 2004.
“Environmental Racism and the ‘Action Gap’: Assessing White and Minority Commitment to Environmental Causes.” With Shaun Bowler and Matthew Whittaker. Presented at the Annual Meeting of the Southern Political Science Association, January 8-10, 2004.
“Perceptions of Commonality and Shared Interests: Assessing Latino Support for Black-Brown Coalitions.” With Helena Alves Rodrigues. Presented at the Color Lines Conference, Harvard Civil Rights Project, Harvard University, Cambridge, MA, August 31-Sep. 2, 2003.
“Attitudinal Underpinnings of Black-Brown Coalitions: Latino Perceptions of Commonality With African-Americans and Anglos,” with Helena Rodrigues. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 3-6, 2003.
“Racial/Ethnic Group Attitudes Toward Environmental Protection in California: Is “Environmentalism” Still a White Phenomenon?” With Matthew Whittaker and Shaun Bowler, presented at the Annual Meeting of the Western Political Science Association, Denver, CO, March 27-30, 2003. Winner of the 2003 Charles Redd Award for Best Paper on the Politics of the American West, Western Political Science Association, March 2004.
“ Ich bin ein Latino! Sophistication, Symbolism, Heuristics, and Latino Preferences in the 2000 Presidential Election,” with Stephen P. Nicholson and Adrian D. Pantoja, presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 29 – September 1, 2002.
“Looking Good…Feeling Good! Assessing Whether Dyadic and Collective Descriptive Representation Enhances Latino Efficacy,” with Stacy Burnett Gordon, prepared for presentation at the Annual Meeting of the American Political Science Association, Boston, MA, August 29 – September 1, 2002.
“Descriptive Representation and Political Alienation Among Latino Citizens” with Adrian D. Pantoja, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 25-27, 2002.
“Rest Assured? Estimating the Potential Demobilization Effects of Overlapping Majority-Minority Districts,” with Matt Barreto and Nathan D. Woods, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 25-27, 2002.
“Estimating and Understanding Social Capital and its Political Effects Among Latinos in the United States,” with F. Chris Garcia and Harry Pachon, presented at the Annual Meeting of the Western Political Science Association, Long Beach, CA, March 22-24, 2002.
“A Quasi-experimental Estimation of the Effects of Overlapping Majority-Minority Districts on Turnout,” with Matt Barreto and Nathan D. Woods, presented at the Annual Meeting of the Western Political Science Association, Long Beach, CA, March 22-24, 2002.

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TEACHING ACTIVITIES

Graduate Courses Taught Seminar in Political Behavior Seminar in Congress Seminar in Interest Groups Quantitative Methods I Core Seminar in American Politics

Research Design in Political Science Seminar on Representation & Electoral Systems Nature of Political Science Inquiry Seminar on Racial, Ethnic, and Social Minorities Seminar on Race and Racism in Contemporary
American Politics

Undergraduate Courses Taught

Elections and Voting Behavior

Introduction to American Politics

Legislative Process

Introduction to Political Philosophy

Societal Responses to AIDS

Politics and Homosexuality

Quantitative Analysis

Minority Representation and the VRA

Latino Politics

Minority and Group Mobilization

Understanding Political Research Seminar on Race and Racism

Inequality and American Democracy Parties, Voting, Media, and Elections

Doctoral Students Supervised (Chair)
Christina Bejarano, Assistant Professor, Department of Political Science, University of Kansas, 2007.
Ken Cimino, Deceased, 2004.
Stacy B. Gordon, Associate Professor, Department of Political Science, University of Nevada, 1997.
Daryl Liskey, Senior Computational Social Scientist, Booz Allen Hamilton Corporation (Strategy and Technology Consulting), 2002.
Stephen P. Nicholson, Assistant Professor, School of Social and Behavioral Sciences, University of California, Merced, 1998. Recipient of the APSA’s E.E. Schattschneider Award for the Best Dissertation in American Politics, 1999.
Adrian D. Pantoja, Associate Professor, Department of Politics, Pitzer College, 2001.
Francisco Pedraza, Assistant Professor, Department of Political Science, Texas A&M University 2010.
Helena Rodrigues, Direct, Project ADVANCE, University of Arizona, 2005.
Roger P. Rose, Associate Professor, Department of Political Science, University of Minnesota, Morris, 1997. (Co-directed)

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Gregory Saxton, Assistant Professor, Department of Communication, University at Buffalo-SUNY, 2000. (Co-directed)
Ali Valenzuela, Assistant Professor, Department of Politics, Princeton University, 2011.
Jacqueline White, Deputy Chief Administrative Officer, County of Los Angeles, 2004.
Nathan D. Woods, Director, Welch Consulting, Washington, DC, 2004.

Doctoral Committee Memberships Elizabeth Bergman, Assistant Professor, California State University East Bay, 2001.
Jeff Cummins, Assistant Professor, California State University, Fresno, 2003.
Elizabeth DeSouza, Visiting Assistant Professor, Claremont Graduate University, 1999.
Rose Ernst, Assistant Professor, Seattle University, 2004.
Scott Frisch, Associate Professor, Department of Political Science, California State University, Channel Islands, 1997.
Marcia Godwin, Assistant Professor, Public Administration, University of LaVerne, 2000.
Christopher Hoene, Director, Center for Policy and Research, National League of Cities, 1999.
William Julius, Visiting Assistant Professor, Department of Political Science, California State University, Fullerton, 2002.
George Monsavais, Executive Director, “Two Minute Briefing,” Provo, Utah, 2001.
Deidre Sanders, Environmental Justice Program Manager, Pacific Gas and Electric, 2009.
Nancy Shulock, Associate Professor of Public Policy and Administration, California State University, Sacramento, 1996. Recipient of the APSA’s Harold Lasswell Award for the Best Dissertation in Policy Studies, 1997.
Charles Turner, Associate Professor and Chair, Department of Political Science, California State University, Chico, 2000.
Whittaker, Matthew. Staff Researcher, College of Education, University of Iowa. June 2006.

Doctoral Dissertations in Progress Wendy Gross, (Co-chair) Mackenzie Israel-Trummel, (Chair) Rachel Stein, (Member)
ER 489

Lucila Figueroa, (Member) Jeanette Carmen Bustamante, (Chair) Rachel Gillumn, (Member)
14
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SERVICE
Professional Service and Memberships:
Vice-President-Eelect and Program Chair-Elect, Western Political Science Association, 20112012.
Chair, Nominations Committee, Class III Section 3, American Academy of Arts and Sciences, 2011-14.
Member, International Academic Advisory Board, the United States Studies Centre at the University of Sydney, NSW, Australia, 2011-present. Academic and Research Program Review Subcommittee—2011-2012.
Member, APSA Standing Committee on Conference Siting, 2011-present. Guest Co-Editor: Annual Review of Political Science, 2011. APSR Editorial Search Committee, American Political Science Association, 2010-2011. Nominations Committee, Class III Section 3, American Academy of Arts and Sciences,
2010-11. Executive Board, Consortium of Social Science Associations (COSSA), 2010. President, Midwest Political Science Association, 2009-2010. President-elect, Midwest Political Science Association, 2008-2009. Southern Political Science Association, Committee on the Status of Gays, Lesbians and
Bisexuals, 2008-2009. Western Political Science Association PRQ Best Paper Award Committee, 2008-2009. NSF IGERT Panelist, 2007 Vice-President, Midwest Political Science Association, 2006-2007. Member, APSA Pi Sigma Alpha Award Committee, 2006-2007. General Program Chair, 2006 Annual Meeting of the Midwest Political Science Association. Board of Overseers, American National Election Study, 2006-2009 Member, WPSA Best Paper on Latino/a Politics Committee, 2005-2006. President, Latino Caucus of the American Political Science Association, 2004-2005. Member, Executive Council of the American Political Science Association, 2002-2004.
Member of the Council’s Administrative Committee, 2003-2004; Member of the Council’s Sub-committee on Public Presence, 2003-2004. Member, Nominations Committee, American Political Science Association, 2005-2006. Section Program Co-Chair, Organized Section on Race, Ethnicity, and Politics, 2005 Annual Meeting of the American Political Science Association. Member, Executive Council of the Western Political Science Association, 2005-2008. Member, Executive Council of the Organized Section on Elections, Voting Behavior, and Public Opinion of the APSA, 2002-2004. Member, Editorial Board, American Journal of Political Science, January, 2002-2009. Member, Editorial Board, Journal of Politics, January, 2005-2007; 2009-present. Member, Editorial Board, Political Research Quarterly, June 2006-present. Member, Editorial Board, PS: Political Science & Politics, January, 2002-2004. Member, Executive Council of the Midwest Political Science Association, 2000-2003. Member, Latino Scholarship Fund Award Committee, American Political Science Association, 2003-2005. Member, Midwest Political Science Association Ad Hoc Committee on Short Courses.

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Chair, Western Political Science Association’s Committee on the Status of Chicanos, 20012003.
Member, American Political Science Association’s Committee on the Status of Latinos y Latinas in the Profession, 1999-2001.
Member, Western Political Science Association’s Committee on the Status of Chicanos, 2000-2001.
Member, Steering Committee, Latino Scholarship Fund, APSA Centennial Campaign Invited Lecture, the Joseph Serna Center, California State University, Sacramento, October
2008. Invited Presentation, University of Illinois at Urbana, La Casa Cultural Latina and
Department of Political Science, November 2007 Invited Presentation, Immigrant Political Incorporation Workshop, Harvard, September
2007 Invited Presentation, Democratic Caucus of the House of Representatives, February 2007 Invited Presentation, Center for American Progress, Washington, DC, February 2007 Invited Presentation, Latino Issues Forum and San Francisco Foundation, February 2007 Invited Lecture, University of California, Davis, February, 2007 Invited Lecture, Texas Tech University, Lubbock, April 2006 Invited Lecture, Texas State University, San Marcos, April 2006 Invited Lecture, University of California, Berkeley, October 2005 Invited Panelist, American Anthropological Society Conference on Race and Human
Variation, Arlington, VA, September 2004 Invited Lecture, Texas A&M University, College Station, November 2004 Invited Lecture, University of California, San Diego, May 2004 Invited Lecture, Washington University in St. Louis, February, 2004 Invited Lecture, University of Wisconsin, Madison, April, 2003 Invited Lecture, University of Washington, November, 2003 Invited Lecture, Hunter College-CUNY, October, 2002 Invited Lectures, Ralph Bunche Institute, 2000, 2004 Invited Discussant, Conference on Migration, UC-San Diego, Fall 2000 Invited Lecture, University of California, Irvine, April, 1999 Invited Panelist, Conference on the “New Californios” UC-Irvine, April 1997. Invited Panelist, Conference on ‘The 1996 elections and the Latino Community,” School of
Public Policy, University of California, Berkeley, November 1996. Section Program Chair, Voting and Elections, 2001 Meeting of the WPSA Manuscript Reviewer: APSR, AJPS, JOP, LSQ, PRQ, SSQ, JCR, Political Behavior, Political
Psychology, El Centro, APR, NSF, PS, International Migration Review

University and College Service:
Stanford University
Chair, Program in Chicano/a Studies, Center for Comparative Studies in Race and Ethnicity. 2008-2014.
Faculty Senate, 2010-2013. Editorial Board, Series in the Comparative Studies in Race and Ethnicity, Stanford
University Press, 2010-present. Leading Matters Lecturer, November 13, 2010.

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IRiSS Executive Committee, 2009-present. Founding Co-Director, Stanford Center for American Democracy, within the Institute for
Research in the Social Sciences, 2008-present. Founding Director, Institute on the Politics of Inequality, Race and Ethnicity at Stanford.
2009-present. Member, Guiding Concilio, El Centro Chicano, 2009-2011. Invited Speaker, Sophomore Seminar, Stanford University, 2008, 2009.
University of Washington
Departmental Review Committee, Department of Communication, 2007-8 Founder and Director, University of Washington Institute for the Study of Ethnicity, Race,
and Sexuality, 2006-present.
University of Iowa
Faculty Senate, 2003-2004. Member, Faculty Senate Committee on Government Relations, 2002-2004. Member, University of Iowa Council on the Status of Latinos, 2001 to present. Member, Board in Control of Athletics, 2003-2004; Subcommittees on Academic
Achievement and Equity. Member, Sexuality Studies Program Advisory Committee, 2003-2004. Member, Obermann Center Advisory Committee, 2003-2005. Member, Interdisciplinary Research Grant Review Committee, Obermann Center,
December 2003. Faculty Host, Provost Candidate Forum, December 2003. Member, Faculty Assembly Nominations Committee, April 2003. Presentation to the Latino Youth Summit, Sponsored by Opportunity at Iowa, October 31,
2003. Visiting Lecture, Hispanic Student Association, Cornell College, November, 2002. Paper Presentation, “Changes in Latitudes, Changes in Attitudes: How Latino Immigration
and Political Incorporation are Changing the Face of American Politics,” at the public forum, “Latinos-Ignored No Longer,” sponsored by the UI Council on the Status of Latinos in Commemoration of Latino Heritage Month, October 15, 2002. Key Note Speaker, UI Latino Commencement Celebration, May 2002. Conference Presentation, Western Hemispheric Integration, Democracy and the Rule of Law, organized by the UI College of Law and International Programs, April, 2002.
Claremont Graduate University
Member, Affirmative Action and Diversity Committee, Serving on the Information Science Search Committee as part of these duties;
Member, Campus Master Planning Committee; Member, Commencement Speaker Committee; Member, Lambda Faculty and Staff Association, Curriculum sub-committee, 1997-2001; Committee for an Undergraduate Major in Political Psychology, April 1999 to 2000; Panel Speaker, Inauguration of Steadman Upham as President of the University; Faculty Executive Committee, July 1, 1997 to June 30, 1999; Space Allocation and Facilities Review Committee, March 1997-2001;

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Diversity Task Force, January 1997 to May 1998; Chair, Campus-wide Working Group on Financial Aid and Fellowship Allocation Policy,
Spring 1998; Community Fellows Selection Committee, October, 1998;
UC-Davis
Member, Central Valley Initiative Planning Committee, Vice-Provost's Office, Spring 1994; Member, Chancellor's Committee on Lesbian, Gay and Bisexual Issues, April 1994-1996; Member, Institute of Governmental Affairs--SSDS Statistical Consultant Search Committee,
Summer 1994; Chair, Institute of Governmental Affairs-ICPSR Committee and UCD Faculty ICPSR Liason,
1994-95;

Departmental Service:
Stanford University
Member, Political Science Omnibus Search Committee, 2011-2012. Member, CCSRE Strategic Planning Committee, 2011-2012. Member, Political Science Graduate Admissions, 2010-2011. Member, African-American Politics Search Committee, 2009-2010. American Politics Field Chair, 2008-09. Member, Graduate Admissions, 2008-09. Member, American Politics Search Committee, 2008-09. Member, CCSRE Curriculum Committee, 2008-present. Chair, Ernesto Galarza Memorial Lecture Committee, 2008-present. Director, CCSRE Public Policy Institute, 2009-present.
University of Washington
Member, Lev Award Committee, 2007 Member, Third-year Review Committee for Matt Barreto, 2007 Member, Graduate Admissions Committee, 2006-08 Chair, Tenure and Promotion Review for Luis Ricardo Fraga, 2006 Chair, African-American Politics Target of Opportunity Search, 2005-06. Member, Graduate Program Committee, 2005-07. Member, Honors Program Interview Committee, 2005-06.
University of Iowa
Member, Department Executive Committee, 2003-04. Member, Department Bose Speaker Series Committee, 2003-04. Member, Tenure Review Committee for Sara M. Mitchell, December 2003. Chair, American Politics Doctoral Examination Field Committee, November 2003. Chair, Third-year Review Committee, Fred Boehmke, 2002-2003. Chinese Politics Search Committee, 2002

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Computer Committee, 2001-2002
Claremont Graduate University
Coordinator of the MA program in American Politics, 1999-2001; American Politics Field Committee; Admissions and Awards Committee, Chair: July 1997-June 1999; Political Economy Search Committee 1996-1997;
UC-Davis
American Politics Search Committee, 1995-96; MA Graduate Program Advisor (American, Public Law, and Theory), 1994-95; Member, Graduate Affairs Committee, 1994-96; Coordinator, Political Science Research Colloquium, 1992-1994; Law and Politics Search Committee, 1993-94; Director, Public Affairs Internship Program, 1993-94; Co-Director, Public Affairs Internship Program, 1992-93; Member, Undergraduate Affairs Committee 1991-92;

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Exhibit B

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Sources
The American National Election Studies (ANES; www.electionstudies.org). The ANES 2008 Time Series Study [dataset]. Stanford University and the University of Michigan [producers].
Barth, Jay, L. Marvin Overby, and Scott H. Huffmon. 2009. “Community Context, Personal Contact, and Support for Anti-Gay Rights Referendum.” Political Research Quarterly 62 (2): 355-365
Cahill, Sean. 2007. “The Anti-Gay Marriage Movement.” In Rimmerman, Craig A., and Clyde Wilcox, eds., The Politics of Same Sex Marriage. Chicago: University of Chicago Press.
Campbell, David C. and Carin Robinson. 2007. “Religious Coalitions For and Against Gay Marriage.” In Rimmerman, Craig A., and Clyde Wilcox, eds., The Politics of Same Sex Marriage. Chicago: University of Chicago Press.
Dahl, Robert A. 1956. A Preface to Democratic Theory. Chicago: University of Chicago Press.
FBI Hate Crime Statistics. Various years. For 2007, see: http://www.fbi.gov/ucr/hc2007/index.html
Gartner, Scott S. and Gary M. Segura. 1997. “Appearances can be Deceptive: SelfSelection, Social Group Identification, and Political Mobilization.” Rationality and Society, 9 (2): 131-162.
General Social Surveys, 1972-2008. [machine-readable data file]. Principal Investigator, James A. Davis; Director and Co-Principal Investigator, Tom W. Smith; CoPrincipal Investigator, Peter V. Marsden, NORC ed. Chicago: National Opinion Research Center, producer, 2005; Storrs, CT: The Roper Center for Public Opinion Research, University of Connecticut, distributor. 1 data file (53,043 logical records) and 1 codebook (2, 656 pp).
Haider-Markel, Donald P. and Kenneth J. Meier. 1996. “The Politics of Gay and Lesbian Rights: Expanding the Scope of the Conflict.” The Journal of Politics, 58 (2): 332-349.
Haider-Markel, Donald P., Mark R. Joslyn and Chad J. Kniss. 2000. “Minority Group Interests and Political Representation: Gay Elected Officials in the Policy Process.” The Journal of Politics, 62 (2): 568-577.
Haider-Markel, Donald P., and Mark R. Joslyn. 2005. “Attributions and the Regulation of Marriage: Considering the Parallels between Race and Homosexuality.” PS: Political Science and Politics, 38 (2): 233-239.

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Haider-Markel, Donald P., Alana Querze, Kara Lindaman. 2007. “Lose, Win, or Draw?: A Reexamination of Direct Democracy and Minority Rights.” Political Research Quarterly, 60 (2): 304-314.
Hero, Rodney. 1992. Latinos and the US Political System. Philadelphia: Temple University Press.
Lax, Jeffrey, and Justin H. Phillips. 2009. “Gay Rights in the States: Public Opinion and Policy Responsiveness.” American Political Science Review, 103 (3): 367-386.
Lupia, Arthur, Yanna Krupnikov, Adam Seth Levine, Spencer and Alexander Von Hagen-Jamar. 2009. “Why State Constitutions Differ in their Treatment of SameSex Marriage.” Presented at the Annual Meeting of the American Political Science Association, Toronto, ON, September 2-5.
Madison, James, Alexander Hamilton, and John Jay. 1988 ed. (originally published 178788). The Federalist Papers. Edited by Garry Wills. New York: Bantam Books.
National Coalition of Anti-Violence Programs. 2009. “Hate Violence Against Lesbian, Gay, Bisexual and Transgender People in the United States, 2008.”
National Election Pool, Edison Media Research, and Mitofsky International. 2004. NATIONAL ELECTION POOL GENERAL ELECTION EXIT POLLS, 2004.[Computer file]. ICPSR version. Somerville, NJ: Edison Media Research/New York, NY: Mitofsky International [producers], 2004. Ann Arbor, MI: Inter-university Consortium for Political and Social Research [distributor], 2005.
Olson, Mancur. 1965. The Logic of Collective Action. Cambridge: Harvard University Press.
Out Officials, The Gay & Lesbian Leadership Institute, at http://www.glli.org/out_officials.
Schattschneider, E.E. 1960. The Semisovereign People. New York: Harcourt, Brace Jovanovich.
Truman, David. 1951. The Governmental Process. New York: Knopf.
Zaller, John. 1992. The Nature and Origins of Mass Opinion. Cambridge: Cambridge University Press.

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1 JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice)
2 PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice)
3 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
4 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org
5 prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050
6 CARLA CHRISTOFFERSON (pro hac vice)
7 DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice)
8 RAHI AZIZI (pro hac vice) O’MELVENY & MYERS LLP
9 400 South Hope Street Los Angeles, California 90071
10 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com
11 Tel: 213.430.6000 | Fax: 213.430.6407

12 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989)
13 SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100
14 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com
15 Tel: 702.784.5200 | Fax: 702.784.5252

16 Attorneys for Plaintiffs

17

UNITED STATES DISTRICT COURT

18

DISTRICT OF NEVADA

19 BEVERLY SEVCIK, et al.,

No. 2:12-CV-00578-RCJ-PAL

20

Plaintiffs,

21

v.

DECLARATION OF MICHAEL LAMB, PH.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

22 BRIAN SANDOVAL, et al.,

23

Defendants,

24 and

25 COALITION FOR THE PROTECTION OF MARRIAGE,
26 Defendant-Intervenor.
27

28

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1

I, Michael Lamb, Ph.D., hereby declare and state as follows:

2

PRELIMINARY STATEMENT

3

1. I am a Professor of Psychology in the Department of Psychology at the University

4 of Cambridge in the United Kingdom. I have actual knowledge of the matters stated in this

5 declaration and could and would so testify if called as a witness.

6

2. My background, experience, and list of publications from the last 10 years are

7 summarized in my curriculum vitae, which is attached as Exhibit A to this report.

8

3. I hold a Bachelor’s degree in psychology and economics from the University of

9 Natal in Durban, South Africa (1972), Master’s degrees in psychology from Johns Hopkins

10 University (1974) and Yale University (1975), and a Ph.D. in psychology from Yale University

11 (1976).

12

4. I have held academic positions as Assistant Professor of Psychology at the

13 University of Wisconsin, Assistant Professor of Psychology at the University of Michigan, and

14 Professor of Psychology, Psychiatry, and Pediatrics at the University of Utah. In 2004, I took a

15 position as Professor and Head of the Department of Social and Developmental Psychology at

16 Cambridge University in the United Kingdom.

17

5. From 1987 until 2004, I was head of the Section on Social and Emotional

18 Development and a Senior Research Psychologist at the United States National Institute of Child

19 Health and Human Development (NICHD), an institute within the National Institutes of Health

20 (NIH).

21

6. I have authored more than 600 publications that have appeared either in peer-

22 reviewed professional journals or in professional books published by academic presses primarily

23 for the readership of other professionals. I have written or edited about 45 books in the field of

24 developmental psychology, development in infancy, mother-child relationships, father-child

25 relationships, the role of the father, sibling relationships, the effects of nontraditional rearing

26 circumstances, the effects of daycare, child abuse, and forensic interview practices. A number of

27 my books, including my books on nontraditional families, are used widely as texts in graduate

28 courses.

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1

7. I have been a peer-reviewer for various professional journals regularly for more

2 than 35 years, and I edit the journal, Psychology, Public Policy, and Law, for the American

3 Psychological Association. I currently average five to ten reviews of other professionals’ work

4 per week. In connection with my work as a peer-reviewer, I have peer-reviewed dozens of

5 articles that address the parenting abilities of gay men and/or lesbians and/or their children’s

6 adjustment.

7

8. Over the past 40 years, I have pursued two broad areas of research. One line of

8 research has focused on forensic issues such as the credibility of children and the best ways of

9 eliciting accurate information from victims of child abuse. This work is not directly relevant to

10 the present litigation. The other line of research is concerned with children’s development and

11 adjustment, especially the formative effects of the relationships that children establish with their

12 parents and the ways in which these relationships shape children’s development over time. In this

13 context, I have also examined factors that are likely to have an adverse effect on development,

14 such as child abuse, and I have explored variations in rearing experiences and the effects, if any,

15 they have on child development, such as the effects, if any, of various types of nontraditional

16 family forms. I am very familiar with the research on families headed by gay and lesbian

17 individuals and couples.

18

9. My initial research in the United States was about the formation of relationships

19 between babies and their parents in households with a mother and a father. When I began my

20 research, I focused on the role played by fathers in children’s development. I later expanded my

21 research in order to understand better the role that fathers play in children’s lives—when they live

22 with their children and when they do not, in both divorced and married families, and when they

23 are highly involved or uninvolved in childcare.

24

10. I have been retained by counsel for Plaintiffs as an expert in connection with the

25 above-referenced litigation. I am being compensated for this effort at a rate of $350.00 per hour.

26 I will be reimbursed for expenses in the event that I have to travel in connection with my services.

27 My compensation does not depend on the outcome of this litigation, the opinions I express, or the

28 testimony I provide.

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1

11. In the past four years, I have provided expert testimony at trial in two matters, In

2 the Matter of the Adoption of X.X.G. and N.R.G. in the Circuit Court of the 11th Judicial Circuit

3 and in Miami-Dade County, Florida, Case No. 06-43881 FC 04, which concerned Florida’s ban

4 on adoption by lesbians and gay men, and in Perry v. Schwarzenegger, Case No. 09-CV-2292

5 VRW, which concerned California’s ban on marriage by same-sex couples. I was also deposed in

6 those cases. Additionally, I was deposed as an expert on December 11, 2009, in Cole v. Arkansas

7 Department of Human Services, Case No. CV2008-14824, in the Circuit Court of Pulaski County,

8 Arkansas, which concerned Arkansas’s ban on adoption or foster parenting by unmarried

9 individuals who live with a partner. I also served as an expert witnesses in a number of cases

10 addressing the constitutionality of the federal “Defense of Marriage Act.” I testified as an expert

11 by affidavit in both Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y. May 19, 2011 and

12 Sept. 13, 2011), and Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D.

13 Conn. May 19, 2011 and Sept. 9, 2011); and was deposed in a joint deposition for both cases on

14 June 24, 2011. I submitted expert testimony by affidavit in Dragovich v. U.S. Dep’t of the

15 Treasury, CV 4:10-01564-CW (N.D. Cal. Jan. 20, 2012); Golinski v. Office of Personnel

16 Management, 3:10-cv-0257-JSW (N.D. Cal. June 24, 2011 and Nov. 1, 2011); Commonwealth of

17 Mass. v. U.S. Dep’t of Health and Human Servs., No. 09-11156 (D. Mass. Feb. 18, 2010); and

18 Gill v. Office of Pers. Mgmt., No. 09-10309 (D. Mass. Nov. 11, 2009). I also submitted expert

19 testimony by affidavit in Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC (D. Haw. June

20 29, 2012), which involves Hawaii’s ban on marriage by same-sex couples.

21

12. In preparing this Declaration, I reviewed the Complaint in this case, and the

22 materials listed in the attached Bibliography (Exhibit B). I may rely on those documents, in

23 addition to the documents specifically cited as supportive examples in particular sections of this

24 Declaration, as additional support for my opinions. I have also relied on my years of experience

25 in this field, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein.

26 ///

27 ///

28 ///

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1 I. Summary Of Ultimate Conclusions.

2

13. Children and adolescents raised by same-sex parents are as likely to be well-

3 adjusted as children raised by different-sex parents, including “biological” parents. Numerous

4 studies of youths raised by same-sex parents conducted over the past 25 years by respected

5 researchers and published in peer-reviewed academic journals conclude that children and

6 adolescents raised by same-sex parents are as successful psychologically, emotionally, and

7 socially as children and adolescents raised by different-sex parents, including “biological”

8 parents. Furthermore, the research makes clear that the same factors, as elaborated below, affect

9 the adjustment of youths, whatever the sexual orientation of their parents.

10

14. It is beyond scientific dispute that the factors that account for the adjustment of

11 children and adolescents are the quality of the youths’ relationships with their parents, the quality

12 of the relationship between the parents or significant adults in the youths’ lives, and the

13 availability of economic and socio-emotional resources. These factors affect adjustment in both

14 traditional and nontraditional families. The parents’ sex or sexual orientation does not affect the

15 capacity to be good parents or their children’s healthy development. There also is no empirical

16 support for the notion that the presence of both male and female role models in the home

17 promotes children’s adjustment or well-being.

18 II. The Factors That Determine Children’s And Adolescents’ Adjustment.

19

15. Psychologists use the term “adjustment” to refer to psychological well-being.

20 “Adjustment” refers to characteristics (including the absence of psychological or psychiatric

21 symptoms and the absence of behavior problems) that allow children or adolescents to function

22 well in their everyday life. Well-adjusted youths have sufficient social skills to get along with

23 others, to get along and comply with adults, to function well in school, to function effectively in

24 the workplace, and to establish meaningful intimate relationships later in life. In contrast,

25 maladjustment might be manifested by behavior problems, such as bullying and acting

26 aggressively with others, or deficient social skills making it difficult for individuals to establish

27 relationships with others, thus leaving them socially isolated.

28

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1

16. Over the last 50 years, more than 1,000 studies have examined the factors that

2 predict healthy adjustment in children and adolescents. As a result of this significant body of

3 research, psychologists have reached consensus on the factors that predict healthy development

4 and adjustment. Among these are:

5

a) the quality of children’s or adolescents’ relationships with their parents or parent

6

figures;

7

b) the quality of the relationship between the parents and other significant adults;

8

conflict between them is associated with maladjustment while harmonious relationships

9

between the adults support healthy adjustment;

10

c) the availability of adequate economic and social resources, with poverty and social

11

isolation being associated with maladjustment, and adequate resources supporting healthy

12

adjustment.

13

17. The quality of parent-offspring relationships is determined by the degree to which

14 parents offer love and affection, emotional commitment, reliability and consistency, as well as the

15 extent to which the parents “read” their children or adolescents effectively and provide

16 appropriate stimulation, guidance, and limit-setting. The better the quality of parent-child

17 relationships, the better the children’s or adolescents’ adjustment is likely to be, whether the

18 parents have same- or different-sex orientations.

19

18. Not all differences among youths are differences in adjustment. Many ways in

20 which children or adolescents differ from each other are simply normal variations among people,

21 and are unrelated to adjustment. For example, there has been considerable research on

22 intelligence, but individual differences in intelligence are not viewed as markers of adjustment or

23 maladjustment. Other normal variations can result from cultural differences (such as in

24 assertiveness or individualism) or differences in personality (e.g., some children are extroverted

25 while others are introverted).

26 ///

27 ///

28 ///

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1 III. The Factors Predicting Healthy Adjustment Are The Same For Traditional

And Nontraditional Families, And Children Or Adolescents In Nontraditional

2

Families Are Just As Capable Of Healthy Adjustment As Those In

Traditional Settings.

3

4

19. In the social sciences, the term “traditional family” refers to the childrearing

5 environment that social scientists formerly considered the norm—a middle-class family with a

6 bread-winning father and a stay-at-home mother, married to each other and raising their

7 biological children. “Nontraditional” family forms, by definition, involve any kind of variation

8 from this pattern. Thus, families with fathers who assume responsibility for childcare would

9 qualify as nontraditional, as would families with employed mothers, with two employed parents,

10 with one parent, or that rely on childcare centers instead of performing childcare exclusively

11 within the home. Nontraditional families constitute the vast majority of families in the United

12 States today.

13

20. Society’s early assumptions about the superiority of the traditional family form

14 have been challenged by the results of empirical research. Early in the Twentieth Century, it was

15 widely believed that traditional family settings were necessary in order for children to adjust well.

16 This view derived directly from psychoanalytic thinking that was based on clinical observations,

17 but not on empirical research. As psychoanalysis yielded to more empirically-based psychology

18 over the early parts of the last century, it became clear that this notion was unsupported.

19 Research beginning in the late 1940’s and continuing until the present has tested many of the

20 hypotheses that flowed from the assumption that children and adolescents need to be raised in

21 traditional families in order to develop healthily. Specifically, there have been over 50 years of

22 research into the effects on children or adolescents of having one parent, of divorce, and of

23 maternal employment. Intense interest in the effects of daycare began in the 1970’s, as did

24 interest in highly involved fathers (stay-at-home fathers or families in which mothers and fathers

25 share childcare responsibilities) and in families and households formed by same-sex couples.

26

21. This research has demonstrated that the correlates of children’s or adolescents’

27 adjustment listed above are important regardless of whether children and adolescents are raised in

28 traditional family settings or in nontraditional families. Children’s or adolescents’ adjustment

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1 depends overwhelmingly upon such qualities as the parents’ affection, consistency, reliability,

2 responsiveness, and emotional commitment, as well as on the quality and character of the

3 relationships between the parents and their intimates, and on the availability of sufficient

4 economic and social resources. Since the end of the 1980’s, as a result, it has been well

5 established that children and adolescents can adjust just as well in nontraditional settings as in

6 traditional settings.

7

A. Difficulties in one-parent families have nothing to do with parental gender or

sexual orientation; the absence of a father or of a mother, by itself, is not a

8

predictor of healthy adjustment.

9

22. Numerous large-scale studies show that most of the children and adolescents who

10 grow up in one-parent families are well adjusted. However, there is a significant body of research

11 on the impact of father absence, divorce, and one-parent family life demonstrating that children

12 and adolescents in one-parent families are more likely to have adjustment difficulties than

13 children and adolescents in two-parent families. Research shows that the reasons for this

14 disparity are consistent with the predictors of adjustment generally. The primary causes of

15 increased risk of maladjustment among children or adolescents in one-parent families are the

16 reduced resources available when there is one parent, and the disruptive effects of and conflict

17 associated with parental separation.

18

23. Many children and adolescents of parents whose relationships dissolve lose one of

19 their supportive parental relationships, and do not get the benefit of both psychological and

20 financial support from their non-resident parents. Additionally, many divorces expose children

21 and adolescents to parental conflict both preceding and following the separation, may also

22 involve rejection by or separation from one of the parents, and possible dislocations, such as

23 moving to a new neighborhood and school. Finally, families headed by single mothers, in

24 particular, often suffer considerable degrees of financial hardship because of a combination of

25 factors including the continuing disparity in pay received by men and by women, and because

26 many women, whether or not they were once married, have taken time out from the workforce to

27 raise children.

28

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1

B. Male and female parents can be equally competent; the absence of male or

female parents in the home does not impair development.

2

3

24. Fifty years ago, it was widely assumed that the absence of a male parent figure

4 accounted for the problems in adjustment encountered by some children and adolescents in

5 single-parent families. However, extensive empirical research on nontraditional families has

6 demonstrated that father absence is not itself important to adjustment; instead, it is the quality of

7 the children’s experiences more broadly and, specifically the quality of the parent-child

8 relationships, the quality of the relationship between the parents, and the adequacy of resources

9 that explain the higher levels of maladjustment on the part of children and adolescents in one-

10 parent families. It is well-established that both men and women have the capacity to be good

11 parents, and that having parents of both genders does not enhance adjustment.

12

25. Studies have shown that, at the time that parents first receive their children,

13 whether by birth or adoption, men and women are equivalently competent (or incompetent) at

14 parenting. Most parenting skills are learned “on the job.” Because women in this society on

15 average spend more time on the job, they often become more skillful at it over time. However,

16 this disparity in parenting skills simply reflects women’s greater experience and greater

17 opportunities to learn rather than a biologically given capacity. When men actively care for their

18 children, they become more skillful, too. Nothing about a person’s sex determines the capacity to

19 be a good parent.

20

26. Many studies have pointed to differences between the ways in which mothers and

21 fathers interact with their children, but this is not significant to adjustment. These studies suggest

22 that, on average, men’s patterns of interaction are dominated by a more boisterous, playful,

23 unpredictable interaction, while women’s patterns are more soothing, containing, and restrictive.

24 However, these differences do not apply across the board to all men or to all women, nor is it

25 harmful when parents do not assume traditional gender roles when interacting with their children.

26 ///

27 ///

28 ///

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1

27. Male and female adults can adopt sensitive or authoritative parenting styles. When

2 fathers are the primary caregivers, for example, the style of interaction between fathers and

3 children often becomes more like typical mother-child interaction. The observed differences in

4 parenting style appear to reflect, in large part, differences in the type of responsibility that the

5 parent has within the home (i.e., differences between being the primary or secondary parent).

6 Many children do not have parents who offer both of these parenting styles and this does not

7 appear to affect their adjustment adversely.

8

28. There also is no empirical support for the notion that the presence of both male and

9 female role models in the home enhances the adjustment of children and adolescents. Society is

10 replete with role models from whom children and adolescents can learn about socially prescribed

11 male and female roles. Some normal variations do characterize children and adolescents raised in

12 some nontraditional settings, however. For example, such children often have distinctive

13 attitudes about sex-role norms. Within the field, sex-role norms refer to the awareness of and

14 beliefs in behavioral differences between boys and girls or men and women. In nontraditional

15 families, children may have more flexible sex-role standards. This means, for example, that the

16 children are more likely to think that both boys and girls can be astronauts or doctors, and that it

17 is acceptable for both girls and boys to play with both trucks and dolls. By contrast, children

18 raised in traditional family settings tend to have more sex-stereotypical notions about appropriate

19 gender roles. Again, this variation with respect to sex-role norms is a normal variation, and has 20 nothing to do with adjustment.1

21 ///

22 ///

23 ///

24

1 A Hawaii federal court recently cited a book by David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood and Marriage are Indispensable for the Good of

25

Children and Society (1996) when claiming that some researchers believe that “gender differentiated parenting” is important for human development. See Jackson v. Abercrombie, Civ.

26

No. 11-00734 ACK-KSC, 2012 U.S. Dist. LEXIS 111376, *139 (D. Haw. Aug. 8, 2012). This claim, which was widely assumed to be true many years ago, has been shown to be unfounded,

27

and conflicts with the extensive body of empirical research described above. Additionally, Popenoe is neither a psychologist nor child development expert. It is beyond any credible debate

28

among child development experts today that male and female parents can be equally competent and that the absence of a male or female parent in the home does not impair adjustment.

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1 IV. Research Specific To Parenting By Same-Sex Couples Demonstrates That The

Children And Adolescents of Same-Sex Parents Are Just As Well-Adjusted As Those

2

With Different-Sex Parents.

3

A. Based on a significant and well-respected body of research, the scientific

community has reached consensus that parental sexual orientation does not

4

affect adjustment.

5

29. The body of research that has examined children’s and adolescents’ adjustment in

6 the specific context of parenting by same-sex couples represents approximately 30 years of

7 scholarship and includes more than 50 peer-reviewed empirical reports. The earliest reports from

8 studies of same-sex parents were published in the late 1970’s, and research has continued to the

9 present. More than 100 articles about same-sex parents and/or their offspring have been

10 published in respected academic journals or as chapters in books for use by other professionals.

11 These present both qualitative research (relying primarily on interviews and discussions with

12 either the youths or with the parents) and quantitative research.

13

30. The results of these studies support and are consistent with the results of the

14 broader body of research on socialization in both traditional and nontraditional families. They

15 demonstrate that the adjustment of children and adolescents of same-sex parents is determined by

16 the quality of the youths’ relationships with the parents, the quality of the relationship between

17 the parents, and the resources available to the families.

18

31. The results of these studies further demonstrate that adjustment is not affected by

19 the gender or sexual orientation of the parent(s). Research comparing the adjustment of children

20 and adolescents of same-sex parents with the children and adolescents of different-sex parents

21 consistently shows that the children or adolescents in both groups are equivalently adjusted. The

22 children and adolescents of same-sex parents are as emotionally healthy, and as educationally and

23 socially successful, as children and adolescents raised by different-sex parents. The social

24 science literature overwhelmingly rejects the notion that there is an optimal gender mix of parents

25 or that children and adolescents with same-sex parents suffer any developmental disadvantages

26 compared with those with two different-sex parents.

27

32. In Jackson v. Abercrombie, a Hawaii district court described a recent article by

28 Mark Regnerus as providing evidence that contradicts the social science consensus summarized

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1 above, 2012 U.S. Dist. LEXIS 111376, at *138-39. However, this article allows for no such

2 conclusion. Regnerus’ study did not actually assess individuals raised by same-sex partners. The

3 majority of the respondents who were described as having either “lesbian mothers” or “gay

4 fathers” were children of failed heterosexual unions whose parents reportedly had same-sex 5 relationships at some point.2 Most of the children identified as having lesbian or gay parents 6 spent very little – if any – time living in households headed by same-sex couples.3 Indeed, the

7 Social Science Research journal that published the article has since conducted an audit, which

8 will be published in its November edition, finding that this fact alone should have disqualified the 9 study from being considered for publication.4 See http://chronicle.com/blogs/percolator/

10 controversial-gay-parenting-study-is-severely-flawed-journals-audit-finds/30255.

11

33. Moreover, most of Regnerus’ “gay father” and “lesbian mother” participants were

12 in families that went through divorces and transitions to single-parent or step-family life, which,

13 as I have discussed above, are known correlates of poorer child outcomes. In contrast, Regnerus

14 excluded all the heterosexual families that went through divorce, including only those that

15 remained intact throughout the respondents’ childhoods. Thus, the study merely demonstrated

16 the well-established fact that children tend to do better in stable, intact families than they do after

17 experiencing their parents’ divorce. Regnerus himself recognizes that “[c]hild outcomes in

18 stable, ‘planned’ [gay, lesbian or bisexual] families and those that are the product of previous

19 heterosexuals unions are quite likely distinctive, as previous studies’ conclusions would

20

21 2 An individual was deemed to have a “gay father” or “lesbian mother” if s/he affirmatively

22

answered the following question: “From when you were born until age 18 (or until you left home to be on your own), did either of your parents ever have a romantic relationship with someone of

23

the same sex?” 3 Just over half of the respondents in the “lesbian mother” group lived with their mothers and their

24

partners for at least 4 months; under a quarter did so for more than 3 years. Among those in the “gay father group,” fewer than a quarter lived with their fathers and their same-sex partners for at

25

least 4 months; under 2% did so for more than 3 years. 4 National mainstream medical and child welfare organizations have also recognized these

26

problems with Regnerus’ study. See Amici Curiae Brief of, inter alia, the American Psychological Association, American Psychiatric Association, National Association of Social

27

Workers, American Medical Association, and American Academy of Pediatrics in Golinski v. Office of Personnel Management, Case Nos. 12-15388 & 12-15409 (9th Cir. 2012), available at

28

www.apa.org/about/offices/ogc/amicus/golinski.aspx (addressing Regernus’ article on pages 2223).

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1 suggest.”5 Simply put, Regnerus did not study the adjustment of children raised by same-sex

2 parents at all.

3

34. There is consensus within the scientific community that parental sexual orientation

4 has no effect on children’s and adolescents’ adjustment. Numerous organizations representing

5 mental health and child welfare professionals have issued statements confirming that same-sex

6 parents are as effective as different-sex parents in raising well-adjusted children and adolescents

7 and should not face discrimination. See Exhibit B. These organizations include the American

8 Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the

9 American Psychiatric Association, the American Psychological Association, the American

10 Psychoanalytic Association, the National Association of Social Workers, the Child Welfare

11 League of America, and the North American Council on Adoptable Children.

12

B. Studies identifying differences in the children or adolescents of same-sex

parents have identified only normal variations, and not differences in

13

adjustment.

14

35. Like children and adolescents in other nontraditional families, children and

15 adolescents with same-sex parents have sometimes been found to have less sex-stereotyped

16 beliefs, and to be more open in their views of societal norms and standards about appropriate

17 behavior for males and females. For example, some studies of young children suggest that girls

18 raised by lesbian mothers may play with both dolls and trucks, and be more willing to think that

19 being an astronaut or being a doctor are appropriate aspirations for girls as well as boys, than girls

20 raised by heterosexual mothers. Although there was a time when some developmental

21 psychologists believed that conformance to sex-based stereotypes was a component of healthy

22 adjustment, this view has been discredited and abandoned. The differences seen in sex-

23 stereotyped beliefs and behavior between children of lesbian and heterosexual parents are not

24 differences in adjustment. Children and adolescents raised by same-sex parents do not differ

25

5 Regnerus acknowledges that the vast majority of his respondents did not come from planned families with lesbian or gay parents. Moreover, his inference that even 17-26% of the

26

respondents in the “lesbian mother” group and under 2% of those from the “gay father” group might be from planned families with lesbian or gay parents is highly dubious. This inference was

27

based only on those respondents’ reports that their biological parents never married or lived together and that they never lived with their parents and different-sex partners. However, since

28

this is true of families in which the parents lived alone, with no partners of either sex, it is not clear if there were any planned families with lesbian or gay parents in this study.

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1 from those raised by different-sex parents with respect to how they identify their sexual

2 orientation later in life. Neither do they differ with respect to gender identity, which is an aspect

3 of psychological adjustment.

4

C. The methodology of the research examining same-sex parents is standard,

reliable, and accepted in the field. 5

6

36. Social scientists use and value diverse methodologies, research designs, and types

7 of data that vary depending on the discipline involved, the specific area of research, the questions

8 being raised, and the theories being applied and evaluated. Developmental psychologists (and

9 psychologists more generally) tend to emphasize intensive examination of relatively small

10 numbers of individuals, often studied in the context of social relationships and influences.

11 Developmental psychologists rarely use research methods based on statistically representative

12 national samples. Such large-scale survey research methods, which are typically used by

13 sociologists and demographers, are often too blunt to address adequately the complex and

14 nuanced questions that generally are at issue when scholars attempt to assess and compare the

15 course of development in different circumstances. It is common for researchers to use what

16 might be called “convenience” samples, and to explore those samples intensively, rather than to 17 study large samples more superficially.6

18

37. The methodologies used in the major studies of same-sex parents meet the

19 standards for research in the field of developmental psychology and psychology generally.

20 Proper research methods and standards in social sciences are determined through a rigorous peer

21 review process that is conducted by established scholars in individual disciplines and sub-fields.

22 When scholarly papers are submitted for publication, the research methods used, the analyses

23

6 In Jackson, the court cited an article claiming to show flaws in the literature underlying the scientific consensus that the children of same-sex parents are equally well-adjusted. 2012 U.S.

24

Dist. LEXIS 111376, at *140 (citing Loren D. Marks, Same-Sex Parenting and Children's Outcomes: A Closer Examination of the American Psychological Association's Brief on Lesbian

25

and Gay Parenting, 41 Soc. Sci. Research 735, 748 (2012).) Marks’ selective critique, however, is baseless. Although published in 2012, it curiously addressed a 2005 briefing paper, ignoring

26

all research published since 2004. Marks failed to recognize the repeated demonstration, by researchers using a variety of methods (including the survey research methodology he favors in

27

the critique), that parental sexual orientation is unrelated to children’s outcomes (as detailed above). This is why mainstream medical and child welfare organizations have acknowledged

28

expressly that Marks’ critique has no merit. See Amici Curiae Brief of, American Psychological Association, et al., supra (addressing Marks’ article on pages 23-24 n.42).

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1 conducted, and the findings drawn are critically reviewed. In order to be published, an

2 academic’s work must satisfy the scrutiny and standards of scholars considered to be experts in

3 the field of research under review.

4

38. The studies specific to same-sex parents from which I draw my conclusions were

5 published in leading journals in the field of child and adolescent development, such as Child

6 Development, Developmental Psychology, and The Journal of Child Psychology and Psychiatry.

7 The journals Child Development, published by the Society for Research in Child Development,

8 Developmental Psychology, published by the American Psychological Association, and The

9 Journal of Child Psychology and Psychiatry are the flagship peer-reviewed journals in the field of

10 child development. Most of the studies on which I rely appeared in these (or similar) rigorously

11 peer-reviewed and highly selective journals, whose standards represent expert consensus on

12 generally accepted social scientific standards for research on child and adolescent development.

13 Prior to publication in these journals, these studies were required to go through a rigorous peer-

14 review process, and as a result, they constitute the type of research that members of the respective

15 professions consider reliable. The body of research on families formed by same-sex couples is

16 consistent with standards in the relevant fields and produces reliable conclusions.

17

D. Data concerning one-parent families does not support conclusions about the

preferred gender of parents. 18

19

39. Advocacy groups that oppose parenting by same-sex couples sometimes use

20 research showing that children and adolescents in one-parent families are at greater risk of

21 maladjustment than those raised by two parents to support the view that youths need both mothers

22 and fathers, and therefore that heterosexual couples make the best parents. This mischaracterizes

23 the research into one-parent families, which typically does not explore the effects of parental

24 sexual orientation or gender.

25

40. Studies on the impact of one-parent family life generally compare one-parent and

26 married-couple heterosexual parents; I am aware of no study that includes same-sex couples.

27 Consequently, it is inappropriate to attribute the differences resulting from the number of parents

28 and resources in a household to parental gender or sexual orientation, or to draw conclusions

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1 about the children of same-sex parents from these studies.7 The relevant studies do suggest,

2 however, that, all other things being equal, children and adolescents tend to do better with two

3 parents than one, and therefore, that children and adolescents with same-sex parents, like their

4 peers, likely would benefit if their parents could choose to marry and solidify their family and

5 parentalties.

6 V. 7

Research Concerning The Benefits Of Being Raised By “Biological” Parents Does Not Support Arguments That Same-Sex Couples Are Inferior Parents.

8

41. Others claim that children thrive in families with “biological” parents and, by

9 implication, claim that same-sex parents are bad for children because same-sex parents cannot

10 provide children with the advantages of being raised by their two biological parents. This

11 argument is misleading. In many of the relevant studies, the term “biological parents” includes

12 adoptive parents, because the term is used to distinguish between ‘parents’ (whether biological or 13 adoptive) and ‘step-parents’.8 Children adopted early in life and biological children have similar

14 outcomes. These studies thus provide no evidence in support of the argument that the children

15 and adolescents raised by same-sex parents would be at psychological risk.

16

42. While some studies show that children do better when raised by their “biological”

17 parents than when raised by one “biological” parent and the parent’s new partner, these studies do

18 not examine children being raised by same-sex couples, including the many who jointly planned

19 to bring children into their families either by birth or adoption, and are jointly raising the children.

20 Children in one-parent families or step-families are at a higher risk for adverse outcomes for

21 reasons explained earlier (i.e., these children may have endured their parents’ separations,

22 exposing the children to parental conflict and related dislocations, the children may have

23 experienced separation from or abandonment by parents, and the step-parents may have entered

24 their lives relatively late in their development, affecting the quality of the parent-child

25 7 The Jackson court’s reliance on such documents is an example of this type of error. (See 2012

26

U.S. Dist. LEXIS 111376, at *138, citing Kristen Anderson Moore, et al., Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It,

27

Child Trends Research Br. (June 2002).) Moore’s document discusses the impact of these types of factors on families headed by heterosexual parents, and does not even discuss or mention

28

families headed by lesbian or gay parents. 8 Indeed, Moore’s article, discussed above, does just that.

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Exhibit A

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Curriculum Vitae

MICHAEL E. LAMB

Professor of Psychology in the Social Sciences Department of Psychology University of Cambridge Free School Lane Cambridge CB2 3RQ United Kingdom

Phone: Fax: E-Mail:

(44)-01223-334523 (44)-01223-334550 mel37@cam.ac.uk

Education:

BA MA MS M. Phil. Ph.D.

University of Natal, Durban (South Africa) ...................................1972 Johns Hopkins University ...............................................................1974 Yale University ...............................................................................1975 Yale University ...............................................................................1975 Yale University (degree completed 10/75) .....................................1976

Employment History:
Assistant Professor of Psychology, University of Wisconsin-Madison: June 1976 to August 1978
Assistant Professor of Psychology, University of Michigan: January 1978 to December 1980 Professor of Psychology, Psychiatry, and Pediatrics, University of Utah: January 1981 to
June 1987 Visiting Professor, School of Social Work, University of Haifa (Israel): Spring 1981. Visiting Professor, School of Education, University of Hokkaido, Sapporo (Japan):
Summer 1985. Senior Research Scientist and Chief, Section on Social and Emotional Development, National
Institute of Child Health and Human Development: July 1987 to August 2004. Visiting Professor, Department of Psychology, University of Osnabrück (Germany), Fall 1995. Visiting Professor, Department of Psychology, Martin-Luther University of Halle-Wittenberg (Germany), Fall 1996. Professor of Psychology in the Social Sciences, Faculty of Social and Political Sciences, University of Cambridge, September 2004 to present. Weiswasser Visiting Professor of Pediatrics, Yale University School of Medicine, Spring 2007.

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Distinctions and Honors:
Certificates of Merit for Outstandingly Good Work in Psychology and Economics, University of Natal.............................................................................1971, 1972
Economics Society of South Africa Annual Essay Prize ..........................................1972 Prize Fellowship in the Social Sciences, Yale University.........................................1975/76 Young Psychologist Award, American Psychological Association ..........................1976 Boyd R. McCandless Young Scientist Award
(American Psychological Association)..............................................1978 Superior Research Award, College of Social and Behavioral Sciences,
University of Utah..............................................................................1985 Distinguished Research Award, University of Utah .................................................1986 Distinguished Speaker Award, American Family Therapy Association ...................1987 Ph.D. (Honoris Causa), University of Goteborg, Sweden…………………………1995 ‘Hammer Award’ for ‘Helping to build a better government’ (Co-recipient),
Vice-President Albert Gore................................................................1998 James McKeen Cattell Fellow Award for Lifetime Achievement, American
Psychological Society……………………………………………… 2003 Doctor of Civil Law (Honoris Causa), University of East Anglia, UK……………. 2006 Salt Lake County Children’s Justice Award……………………………………… 2011
Professional Committee Membership and Services:
American Psychological Association, Boyd R. McCandless Award Selection Committee, 1979 and 1980
Society for Research in Child Development, Committee on Study Groups and Institutes, 1983-1987
Social Science Research Council Committee: Biosocial perspectives on parental behavior, 1983-1991
Consultant, Municipality of Jerusalem (Israel), Department of Community and Family Services (1987-1994)
Advisory Working Group, U. S. Department of Education, Observational Study of Early Childhood Programs (1990-1993)
International Advisory Committee, Interdisziplinäres Zentrum für Angewandte Sozialisationsforschung, Berlin (1991-1996)
External Advisory (Visiting) Committee, Michigan State University, Institute for Children, Youth and Families (1992-1999)
Advisory Panel, American Enterprise Institute, Project on Disconnected Youth (1992-1995) International Committee, Division 7 (Developmental Psychology), American Psychological
Association (1993-1996) National Advisory Board, Men’s Health Network (1993-1997) National Advisory Board, Program in Teacher Preparation and Special Education, George
Washington University (1994-1997) National Advisory Council, SOS Children’s Villages-USA (1994-1997) National Advisory Board, National Fatherhood Initiative (1994-2004) International Advisory Committee, Human Development Resource Centre, Bamenda, Cameroon
(1995-present)

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American Professional Society on the Abuse of Children (National Research Committee member, 1999-2004; Maryland State Board, 1998-2001; Executive Committee, Maryland Chapter, 1998-2000; Chair, Maryland Training and Education Committee, 1998-2000)
Board of Directors, National Center for Policy Research for Women and Families (1999-2003) National Advisory Committee on Early Care and Education, Institute for Women’s Policy
Research (2001-2003) Steering Committee, Center for Substance Abuse Prevention’s FAS (Fetal Alcohol Syndrome)
Center for Excellence (2001-2002) Board of Trustees, Fatherhood Institute [formerly Fathers Direct] (2005 – 2009) Advisory Board, Center for the International Study of Youth and Political Violence, University
of Tennessee (2005- present) Joseph Rowntree Foundation Advisory Group for research on “Fathering in early-middle
childhood in UK South Asian families” (2006- 2009) Joseph Rowntree Foundation Advisory Group for research on “Understanding fatherhood:
Masculinity, diversity and change” (2006- 2008) U. K. Economic and Social Science Research Council (2006 – 2011; Chair, International
Advisory Committee, 2007-2011; Member, Audit Committee, 20062011) British Council Science and Engineering Advisory Group and Council Member (2007-present) Association for Psychological Science Cattell Award Selection Committee (2009-present) Wissenschaftlichen Beirat, Niedersachsischen Instituts fur fruhkindliche Bildung und Entwicklung [Scientific Advisory Committee, Lower Saxony Institute for Child Development and Education] (2009-2011) Wissenschaftlichen Beirat, Fakultät für Psychologie, Universität Wien [Scientific Advisory Board, Faculty of Psychology, University of Vienna] (2011-2015) U. K. Higher Education Funding Councils’ Research Excellence Framework 2014: Member of sub-panel 4: Psychology, Psychiatry, and Neuroscience (2011-2015)
Grant Proposal Review Committees:
National Science Foundation Experimental Program Review and Study Committee (1980) National Institute of Mental Health, Study Committee for Review of Proposed Research on the
Effects of Divorce (1980) National Institute on Child Health and Human Development, Study Panel on Human
Development and Aging (1981) National Institute of Mental Health, Panel on Cognition, Emotion and Personality (1985-1989)
Ad-hoc Grant Proposal Review:
Australian Research Grants Committee, Big Lottery Fund, Carnegie Foundation, Economic and Social Research Council, Grant Foundation, National Institute of Child Health and Human Development, National Institute of Education, National Institute of Mental Health, National Science Foundation, New Zealand Research Grants Committee, Research Council of Canada, Social Science and Humanities Research Council of Canada, Spencer Foundation, Thrasher Foundation

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Editorial Board Memberships:
Apprentissage et Socialisation (1992-1994) Applied Cognitive Psychology (2007-present) Applied Developmental Science (2005-present) Archives of Scientific Psychology (Associate Editor, 2012-present) Behavioral Assessment (1982-1983) The Behavioral and Brain Sciences (1979-1990) Child Abuse and Neglect (2002-present; Associate Editor: 2005-present) Child Development (1979-1984; 1993-1996) Childbirth Educator (1982-1989) Developmental Psychology (1981-1986; 1992-1994) Developmental Review (2000-present) Early Education and Development (1989-1993) Family Court Review (2002-2008) Fathering (2002-present) Human Nature (1989-1996) Infant Behavior and Development (1980-present) Infant Mental Health Journal (1984-1987) International Journal of Behavioral Development (1993-2001) Journal of Adolescent Research (1986-present) Journal of Aggression, Maltreatment, and Trauma (1997-2005) Journal of Child Custody (2002-present) Journal of Credibility Assessment and Witness Psychology (1996-2000) Journal of Marriage and the Family (1992-1999; 2001-2002) Journal of Social and Personal Relations (1983-1987) Psychology, Public Policy, and Law (2010-present; Editor-Elect, 2012; Editor,
2013-2017) Social Development (1990-present)
Editorial Consultant:
American Psychologist, American Scientist, Canadian Journal of Behavioural Science, Child Maltreatment, Current Directions in Psychological Science, Developmental Psychobiology, Early Childhood Research Quarterly, Family Coordinator, Family Relations, Human Development, Human Organization, Human Relations, Journal of Applied Developmental Psychology, Journal of Child Psychology and Psychiatry, Journal of Consulting and Clinical Psychology, Journal of Developmental and Behavioral Pediatrics, Journal of Experimental Child Psychology, Journal of Family Psychology, Journal of Personality and Social Psychology, Law and Human Behavior, Legal and Criminological Psychology, Merrill-Palmer Quarterly, Pediatrics, Personality and Individual Differences, Psychological Bulletin, Psychological Science, Science
Conference Review Panels: American Psychological Association, 1983, 1984 American Psychology-Law Society Convention, 1996, 2000, 2006, 2008, 2009

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European Conference on Traumatic Stress, 2009 Head Start National Research Conference, 1992, 1994, 1996, 1998, 1999, 2000,
2002, 2004 (Program Committee) International Conference on Infant Studies, 1982, 1984 (panel chair), 1986, 1990 International Society for the Study of Behavioural Development, 2002, 2004 Society for Research in Child Development, 1979, 1981, 1989, 2001, 2007, 2009 World Congress on Infant Psychiatry and Allied Disciplines, 1986
Publication Review: Academic Press, Blackwell Press, Cambridge University Press, Cummings Publishing Co., Harvard University Press, Holt, Rinehart, & Winston, Lawrence Erlbaum Associates, McGraw Hill, Michigan State University Press, Pergamon, Psychology Press, Random House, Sage, University of Chicago Press, University of Wisconsin Press, Wiley Interscience.
Society Memberships: American Psychological Association American Psychology-Law Society Association for Psychological Science (Fellow) British Psychological Association (Fellow) Society for Research in Child Development International Investigative Interviewing Research Group (member, Scientific Committee)
University, Institutional, and Community Service: Chair, Colloquium Committee, Department of Psychology, University of Michigan, 1978-1980 Graduate Committee, Department of Psychology, University of Michigan, 1978-1980 Chair, Admissions Committee, Developmental Psychology Area, University of Michigan,
1978-1979 Executive Committee, Center for Human Growth and Development, University of Michigan,
1980 Member, Dean’s Steering Committee to Develop and Establish a Graduate Program in the
Neurosciences, University of Utah School of Medicine, 1982-1985 Academic Freedom and Tenure Committee, University of Utah, 1982-1985 Executive Committee, Department of Psychology, University of Utah, 1982-1986 Personnel Committee, Department of Psychology, University of Utah, 1981-1984 Coordinator, Developmental Area, Department of Psychology, University of Utah, 1982- 1986 University Promotion and Tenure Advisory Committee, University of Utah, 1985-1987 University of Utah Campus representative, nationwide TIAA Divestment Campaign (1985-87) College of Social and Behavioral Sciences, Superior Research Award Committee, University of
Utah, 1986 National Institute of Child Health and Human Development, Equal Employment Opportunity
Committee, 1988-1990; 1993-1995 (Co-chair, 1994-1995) National Institutes of Health Day Care Oversight Board, 1995-1997 (Chair, Evaluation
Subcommittee, 1997) National Institutes of Health, Office of Behavioral and Social Sciences Research Working Group
on Intramural Activities, Committee member, 1996. International Advisory Board, Center for Global Law and Human Rights, University of Natal,
South Africa, 2003-2005.

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Membre d’Honneur Fondateur: Association Poesie, Arts, et Vie, 2004 – present. Management Committee, Centre for Family Research, University of Cambridge, 2004 - present. Board of Electors (Convenor), Professorship of Family Research, University of Cambridge,
2004-2005. Faculty Board, Faculty of Social and Political Sciences, University of Cambridge, 2004 - 2009. Psychology Research Ethics Committee, University of Cambridge, 2004 – present. General Purposes Committee, Faculty of Social and Political Sciences, University of Cambridge,
2005 – 2010 (Chair, 2007-2008). Board of Electors, Professorship of Evidence-Based Intervention, University of Oxford, 2006. Research Policy Committee, University of Cambridge, 2007- present. Deputy Chair, Faculty of Social and Political Sciences, University of Cambridge, 2007-2008. Faculty Board, Faculty of Politics, Psychology, Sociology, and International Studies, 2009-2011. Faculty board, Faculty of Human, Social, and Political Science, 2012. Cambridge University Research Ethics Committee, 2012-2015.
Memberships in Community Organizations
American Civil Liberties Union, Amnesty International, Cambridge: Past, Present, & Future, Human Rights Watch.

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Research Grant Support History
“The development of father-infant and mother-infant relationships in the first year of life.” (7/1/74 to 6/30/75: $5,200). Ecology of Human Development Program of the Foundation for Child Development (Principal Investigator).
“The development of parent-infant relationships in the second year of life” (7/1/75 to 6/30/76: $5,200). Ecology of Human Development Program of the Foundation for Child Development (Principal Investigator).
“Mother-, father-, and sibling-infant relationships in the first two years of life” (7/1/76 to 6/30/77: $10,000). Graduate School Research Committee of the University of Wisconsin-Madison (Principal Investigator).
“Familial antecedents of achievement orientation in preschool-aged children.” (7/1/76 to 6/30/77: $5,000). Spencer Foundation of Chicago (Principal Investigator).
“The effects of infant signals and characteristics on parental physiological responses” (9/1/76 to 8/31/77: $2,000). National Institutes of Health Biomedical Research Support Grant (Principal Investigator).
Study group to explore “Methodological problems in the study of social interaction” (July 1977: $7,000). Society for Research in Child Development (Principal Organizer; co-organizers— Stephen J. Suomi, Gordon R. Stephenson).
“The development of social relationships within and beyond the family in infancy” (7/1/77 to 6/30/78: $9,000). Graduate School Research Committee of the University of Wisconsin-Madison (Principal Investigator).
“The determinants and consequences of security of parent-infant attachments” (5/1/78 to 4/30/79: $5,000). Faculty Research Grant from the Rackham School of Graduate Studies at the University of Michigan.
“Determinants of early cognitive development in preterm infants” (3/1/78 to 2/28/80: $26,000). The National Foundation/March of Dimes (Co-Investigator; Principal Investigator was Gary M. Olson).
“Infant social development in traditional and nontraditional families” (7/1/78 to 6/30/81: $201,000). Riksbankens Jubileumsfond of Sweden (Principal Investigator).
“Maternal employment and infant social development” (1/1/79 to 12/31/81: $45,000). Spencer Foundation of Chicago (Principal Investigator; Co-investigators were Margaret Owen and Lindsay Chase-Lansdale).

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Study group to explore “The role of the father in child development, social policy, and the law” (July 1980: approx. $6,000). Society for Research in Child Development (Co-organizer; Principal organizer, Abraham Sagi).
“Infant social and emotional development” (7/1/80 to 6/30/81: $8000). University of Utah Research Committee (Principal Investigator).
“Infant social and emotional development” (7/1/80 to 6/30/81: $6000). National Institute of Mental Health Biomedical Research Support Grant (Principal Investigator).
“Developing expectations in infancy: A longitudinal study of behavior in two social contexts” (4/1/81 to 3/31/83: $100,000). National Science Foundation (Principal Investigator).
“The Fatherhood Project” (9/1/81 to 8/31/83: $425,000). The Ford Foundation, The Levi Strauss Foundation, The Ittelson Foundation, and The Rockefeller Family Foundation (Co-Principal Investigator with James A. Levine and Joseph H. Pleck).
“Effects of center day care, family day care, and home care on socioemotional development” (7/1/82 to 6/30/86: 1,405,000 Skr Riksbankens Jubileumsfond of Sweden (Co-Principal Investigator with Carl-Philip Hwang).
“Training program in developmental psychology” (7/1/82 to 6/30/87: $215.940). National Institute of Mental Health (Director of Training Program, University of Utah).
Study group to explore “Adolescent Fatherhood” (May 1984: approx. $6,000). Society for Research in Child Development (Co-organizer: Principal organizer, Arthur Elster).
“Quality of care and children’s adjustment to out-of-home care” (12/1/83 to 11/30/84: $5000). University of Utah Research Committee (Principal Investigator).
“Study group to explore “The interface between social scientists and the “the real world”. (September 1984: $8,000). The Harris Foundation (Co-Principal Organizer with Abraham Sagi).
“Fathers of infants with adolescent mothers” (10/1/84 to 9/30/88: $236967 in direct costs). Office of Adolescent Pregnancy Programs (Co-Principal Investigator with Arthur B. Elster).
Section on Social and Emotional Development, Intramural Research Program, National Institute of Child Health and Human Development (4/1987 to 9/2004: research costs averaging $850,000 per annum; 10/2004 to 9/2006: research costs averaging $500,000 per annum).
“Long term effects of varying early life experiences” (3/1988 to 2/1991: 950,000 Skr).. Riksbanken Jubileumsfond of Sweden (Co-Principal Investigator with Carl-Philip Hwang).
“Mother-son attributions and aggressive interactions” (8/1990 to 7/1993: $338,599). National Institute of Mental Health (Co-Investigator with Carol MacKinnon)

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“The relation between mother-son attributions and the aggressiveness of their interactions” (10/1989 to 9/1992: $250,000). National Science Foundation (Co-Investigator with Carol MacKinnon).
“Long term effects of varying early life experiences” (3/1997 to 2/1999: 1,000,000 Skr). Riksbanken Jubileumsfond of Sweden (Co-Principal Investigator with Carl-Philip Hwang).
“Long term effects of varying early life experiences” (7/2002 to 7/2005: 1,950,000 Skr). Riksbanken Jubileumsfond of Sweden (Co-Principal Investigator with Carl-Philip Hwang).
“The development of living conditions of children” (6/2005 to 5/2011: 1,350,000 Skr per annum). Swedish Council for Working Life and Social Research (Co-Organizer; Principal Organizer is Carl-Philip Hwang).
“Facilitating eyewitness testimony in children with learning disabilities.” (7/2004 to 6/2006: £149,842). Economic and Social Research Council (Co-investigator with Deidre Brown and Charlie Lewis).
“Do best practice forensic interviews with child abuse victims influence case outcomes?” (10/2006 to 3/2008: $173,089). US National Institute of Justice (Co-investigator with MargaretEllen Pipe and Yael Orbach).
“Strategies for interviewing children who are reluctant to disclose abuse” (7/2007 to 6/2010: £199,529). The Nuffield Foundation (Principal Investigator).
“Strategies for interviewing children who are reluctant to disclose abuse” (7/2007 to 6/2010: £50,589). The Isaac Newton Trust (Principal Investigator).
“Parenting and the psychological development of children in gay father families.” (10/2009 to 9/2012: £351,863). The Economic and Social Research Council (Co-Investigator; Principal Investigator is Susan Golombok).
“Children’s evidence in criminal proceedings.” (April 2011: £6000). Nuffield Foundation Conference Grant (Co-Investigator is John Spencer).
“Gay father families: The development of early parent-child relationships.” (1/2013 to 12/2015: £871,000, including £516,251 for British arm of study). U. K. Economic and Social Research Council, French Agence Nationale de la Recherche, and Nederlands Organisatie voor Wetenschappelijk Onderzoek (Principal Investigator; Co-Investigators are Hennie Bos (Netherlands), Susan Golombok (UK), Martine Gross (France), and Olivier Vecho (France)).

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Publications
Lamb, M. E. The effects of maternal deprivation on the development of the concepts of object and person. Journal of Behavioural Science, 1973, 1, 355-364.
Lamb, M. E. Review of Separation: Anxiety and anger by John Bowlby. Journal of Behavioural Science, 1973, 1, 372-373.
Lamb, M. E. A defense of the concept of attachment. Human Development, 1974, 17, 376- 385.
Lamb, M. E. Physiological mechanisms in the control of maternal behavior in rats: A
review. Psychological Bulletin, 1975, 82, 104-119.
Lamb, M. E. The sociability of two-year-olds with their mothers and fathers. Child Psychiatry and Human Development, 1975, 5, 182-188.
Lamb, M. E. Fathers: Forgotten contributors to child development. Human Development, 1975, 18, 245-266.
Lamb, M. E. The relationships between infants and their mothers and fathers. Dissertation Abstracts International, 1976, 37 (6B), 3153.
Lamb, M. E. (Ed.) The role of the father in child development. New York: Wiley, 1976.
Japanese translation published in 1981 by Kasei Publishers.
Lamb, M. E. The role of the father: An overview. In M. E. Lamb (Ed.), The role of the father in child development (pp. 1-63). New York: Wiley, 1976 .
Lamb, M. E. Interactions between eight-month-old children and their fathers and mothers. In M. E. Lamb (Ed.), The role of the father in child development (pp. 307-327). New York: Wiley, 1976.
Lamb, M. E. Proximity seeking attachment behaviors: A critical review of the literature. Genetic Psychology Monographs, 1976, 93, 63-89.
Lamb, M. E. Interactions between two-year-olds and their mothers and fathers. Psychological Reports, 1976, 38, 447-450.
Lamb, M. E. Twelve-month-olds and their parents: Interaction in a laboratory playroom. Developmental Psychology, 1976, 12, 237-244.
Lamb, M. E. Effects of stress and cohort on mother-and father-infant interaction. Developmental Psychology, 1976, 12, 435-443.
Lamb, M. E. Parent-infant interaction in eight-month-olds. Child Psychiatry and Human Development, 1976, 7, 56-63.

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Tracy, R. L., Lamb, M. E., & Ainsworth, M. D. S. Infant approach behavior as related to attachment. Child Development, 1976, 47, 571-578.
Lamb, M. E., & Lamb, J. E. The nature and importance of the father-infant relationship. The Family Coordinator, 1976, 25, 379-385.
Reprinted in E. Murray (Ed.), The child’s first learning environment: Selected readings in home economics (pp. 45-47). Paris: UNESCO, 1980.
Lamb, M. E. A re-examination of the infant social world. Human Development, 1977, 20, 65-85.
Lamb, M. E. Father-infant and mother-infant interaction in the first year of life. Child Development, 1977, 48, 167-181.
Reprinted in Gladys K. Phelan (Ed.), Family relationship: Selected readings (pp. 171-183). Minneapolis: Burgess, 1979.
Lamb, M. E. Infant attachment to mothers and fathers. In S. Cohen & T.J. Comiskey (Eds.) Child development: A study of growth processes (pp. 167-180). Itasca, Ill.: Peacock, 1977.
Lamb, M. E. The development of parental preferences in the first two years of life. Sex Roles, 1977, 3, 495-497.
Reprinted in Roger C. Bailey (Ed.), New horizons in applying psychology. Monterey CA: Brooks/Cole, 1980.
Lamb, M. E. The development of mother-infant and father-infant attachments in the second year of life. Developmental Psychology, 1977, 13, 637-648.
Lamb, M. E. The effects of divorce on children’s personality development. Journal of Divorce, 1977, 1, 163-174.
Lamb, M. E. Infant social cognition and ‘second-order’ effects. Infant Behavior and Development, 1978, 1, 1-10.
Lamb, M. E. (Ed.) Social and personality development. New York: Holt, Rinehart & Winston, Inc., 1978.
Lamb, M. E. Sociopersonality development: Introduction to a burgeoning field. In M. E. Lamb (Ed.), Social and personality development (pp. 1-21). New York: Holt, Rinehart & Winston, Inc., 1978.
Lamb, M. E. Social interaction in infancy and the development of personality. In M. E. Lamb (Ed.), Social and personality development (pp. 26-49). New York: Holt, Rinehart & Winston, Inc., 1978.

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Lamb, M. E., & Baumrind, D. Socialization and personality development in the preschool years. In M. E. Lamb (Ed.), Social and personality development (pp. 50-69). New York: Holt, Rinehart & Winston, Inc., 1978.
Lamb, M. E., & Urberg, K. A. The development of gender role and gender identity. In M. E. Lamb (Ed.), Social and personality development (pp. 178-199). New York: Holt, Rinehart & Winston, Inc., 1978.
Lamb, M. E. Psychosocial development: A theoretical overview and a look into the future. In M. E. Lamb (Ed.), Social and personality development (pp. 307-317). New York: Holt, Rinehart & Winston, Inc., 1978.
Lamb, M. E. The influence of the child on marital quality and family interaction during the prenatal, paranatal, and infancy periods. In R. M. Lerner & G. B. Spanier (Eds.), Child influences on marital and family interaction: A lifespan perspective (pp. 137-163). New York: Academic Press, 1978.
Lamb, M. E. The father’s role in the infant’s social world. In J. H. Stevens & M. Mathews (Eds.), Mother/child, father/child relationships (pp. 87-108). Washington: National Association for the Education of Young Children, 1978.
Lamb, M. E. & Stevenson, M. D. Father-infant relationships: Their nature and importance. Youth and Society, 1978, 9, 277-298.
Lamb, M. E. Interactions between eighteen-month-olds and their preschool-aged siblings. Child Development, 1978, 49, 51-59.
Reprinted in J. Belsky (Ed.), In the beginning: Readings in infancy (pp. 227-232). New York: Columbia University Press, 1982.
Lamb, M. E. Qualitative aspects of mother-and father-infant attachments. Infant Behavior and Development, 1978, 1, 265-275.
Rajecki, D. W., Lamb, M. E., & Suomi, S. J. Effects of multiple peer separation in domestic chicks. Developmental Psychology, 1978, 14, 379-387.
Frodi, A. M., Lamb, M. E., Leavitt, L. A., & Donovan, W. L. Fathers’ and mothers’ responses to infant smiles and cries. Infant Behavior and Development, 1978, 1, 187-198.
Roopnarine, J. L., & Lamb, M. E. The effects of day care on attachment and exploratory behavior in a strange situation. Merrill-Palmer Quarterly, 1978, 24, 85-95.
Reprinted in J. G. Howells (Ed.), Advances in family psychiatry. (Vol. 4, pp. 473-483). New York: International Universities Press, 1981.
Lamb, M. E. Review of Part-time father by E. Atkin & E. Rubin. The Family Coordinator, 1978, 27, 477-478.

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Frodi, A. M., Lamb, M. E., Leavitt, L. A., Donovan, W. L., Neff, C., & Sherry, D. Fathers’ and mothers’ responses to the faces and cries of normal and premature infants. Developmental Psychology, 1978, 14, 490-498.
Frodi, A. M., & Lamb, M. E. Sex differences in physiological and behavioral responses to infant signals: A developmental study. Proceedings of the Iowa Academy of Science (Ames), 1978.
Lamb, M. E. The development of sibling relationships in infancy: A short-term longitudinal study. Child Development, 1978, 49, 1189-1196.
Frodi, A. M., & Lamb, M. E. Sex differences in responsiveness to infants: A developmental study of psychophysiological and behavioral responses. Child Development, 1978, 49, 1182-1188.
Frodi, A. M., Lamb, M. E., Leavitt, L. A., & Donovan, W. L. Fathers’ and mothers responses to infant smiles and cries. Psychophysiology, 1978, 15, 276. (Abstract)
Lamb, M. E. I rapporti fra madri, padri, bambini e fratelli nei prima due anni di vita (The relationship between mothers, fathers, infants, and siblings in the first two years of life.) In M. Cesa-Bianchi & M. Poli (Eds.), Aspetti biosociali dello sviluppo. Vol. 1. Aspetti medico-biologici (Atti del IV congresso biennale della ISSDB). Milan, Italy: Franco Angeli, 1979.
Lamb, M. E., Suomi, S. J., & Stephenson, G. R. (Eds.). Social interaction analysis: Methodological issues. Madison: University of Wisconsin Press, 1979.
Lamb, M. E. Issues in the study of social interaction: An introduction. In M. E. Lamb, S. J. Suomi & G. R. Stephenson (Eds.), Social interaction analysis: Methodological issues (pp. 1-10). Madison: University of Wisconsin Press, 1979.
Lamb, M. E. The effects of the social context on dyadic social interaction. In M. E. Lamb, S. J. Suomi & G. R. Stephenson (Eds.), Social interaction analysis: Methodological issues (pp. 253-268). Madison: University of Wisconsin Press, 1979.
Rajecki, D. W. Lamb, M. E., and Obmascher, P. Toward a general theory of infantile attachment: A comparative review of aspects of the social bond. Behavioral and Brain Sciences, 1979, 1, 417-436.
Rajecki, D.W., & Lamb, M. E. Interpretations, reinterpretations, and alleged misinterpretations of theory and data concerning attachment. Behavioral and Brain Sciences, 1979, 1 461-464.
Lamb, M. E. Review of Fathers, mothers and society by Rappoport, Rappoport, and Strelitz. American Scientist, 1979, 67, 112-113.
Lamb, M. E. Paternal effects and the father’s role: A personal perspective. American Psychologist, 1979, 34, 938-943.

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Reprinted by Ginn Custom Publishing, Lexington, Mass., 1980 et seq.
Reprinted in UNESCO Ideas Forum, 1981, 1 (4), supplement 10, pp. 1-2, 6.
Reprinted in E. Zigler, M. E. Lamb & I. L. Child (Eds.), Socialization and personality development. New York: Oxford University Press, 1982.
Reprinted in J. K. Gardner (Ed.), Readings in developmental psychology (Second edition). Boston: Little, Brown, 1982.
Reprinted in Annual Editions: Social Psychology, 1982 (pp. 68-73). Guilford, CT: Dushkin Publishing, 1982.
Stevenson, M. B., & Lamb, M. E. The effects of sociability and the caretaking environment on infant cognitive performance. Child Development, 1979, 50, 340-349.
Lamb, M. E., Chase-Lansdale, P. L. & Owen, M. T. The changing American family and its implications for infant social development: The sample case of maternal employment. In M. Lewis & L. A. Rosenblum (Eds.) The child and its family (pp. 267-291). New York: Plenum, 1979.
Lamb, M. E., Owen, M. T., & Chase-Lansdale, L. The father-daughter relationship: Past, present and future. In C. B. Kopp & M. Kirkpatrick (Eds.), Becoming female: Perspectives on development (pp. 89-112). New York: Plenum, 1979.
Lamb, M. E. Infant social development: Reflections on a theme. Human Development, 1979, 22, 68-72.
Easterbrooks, M. A., & Lamb, M. E. The relationships between quality of infant-mother attachment and infant competence in initial encounters with peers. Child Development, 1979, 50, 380-387.
Lamb, M. E. Origins of the sense of security: A review of Patterns of attachment: A psychological study of the strange situation. Science, 1979, 24, 730-731.
Reprinted in Infant Mental Health Journal, 1980, 1, 68-70.
Frodi, A. M., & Lamb, M. E. Psychophysiological responses to infant signals in abusive mothers and mothers of premature infants. Psychophysiology, 1979, 16, 183. (Abstract)
Lamb, M. E., & Roopnarine, J. L. Peer influences on sex-role development in preschoolers. Child Development, 1979, 50, 1219-1222.
Lamb, M. E. Separation and reunion behaviors as criteria of attachment to mothers and fathers. Early Human Development, 1979, 3/4, 329-339.
Rajecki, D. W., & Lamb, M. E. Infant attachment: Some further thoughts about theory and method. Behavioral and Brain Sciences, 1979, 2, 644-647.

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Frodi, A. M., & Lamb, M. E. Research on parental physiological responses to infant signals. Cry Research Newsletter, 1979, 1 (3).
Lamb, M. E., & Frodi, A. M. The role of the father in child development. In R. R. Abidin (Ed.), Parent education and intervention handbook. Springfield, Ill.: Charles C. Thomas, 1980 (pp. 36-58).
Lamb, M. E., Owen, M. T., & Chase-Lansdale, L. The working mother in the intact family: A process model. In R. R. Abidin (Ed.), Parent education and intervention handbook. Springfield, Ill.: Charles C. Thomas, 1980 (pp. 59-81).
Lamb, M. E. What can `research experts’ tell parents about effective socialization? In M. D. Fantini & R. Cardenas (eds.), Parenting in a multi-cultural society. London & New York: Longmans, 1980 (pp. 160-169).
Reprinted in E. Zigler, M. E. Lamb & I. L. Child (Eds.), Socialization and personality development. New York: Oxford University Press, 1982.
Updated, translated into Japanese, and republished in Child socialization and “parenting” education (pp. 45-56). Saitama, Japan: National Women’s Education Center, 1991.
Lamb, M. E. The development of parent-infant attachments in the first two years of life. In F. A. Pedersen (Ed.), The father-infant relationship: Observational studies in a family setting. New York: Praeger Special Studies, 1980 (pp. 21-43).
Lamb, M. E., & Bronson, S. K. The role of the father in child development: Past presumptions, present realities, and the future potential. In K. Berry (Ed.), Fatherhood and the male single parent. Omaha: Eastern Nebraska Office of Mental Health, 1980.
Lamb, M. E. Growing up in the 1980’s. In F. Littman (Ed.), Focus on the family: New images of parents and children in the 1980s. Boston: Wheelock College, 1980 (pp. 39-60).
Lamb, M. E., & Bronson, S. K. Fathers in the context of family influences: Past, present, and future. School Psychology Digest, 1980, 9, 336-353.
Roopnarine, J. L., & Lamb, M. E. Peer and parent child interaction before and after enrollment in nursery school. Journal of Applied Developmental Psychology, 1980, 1, 77-81.
Frodi, A. M., & Lamb, M. E. Child abusers’ responses to infant smiles and cries. Child Development, 1980, 51, 238-241.
Lamb, M. E. The father’s role in the facilitation of infant mental health. Infant Mental Health Journal, 1980, 1, 140-149.
Frodi, A. M., & Lamb, M. E. Infants at risk for child abuse. Infant Mental Health Journal, 1980, 1, 240-247.

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16
Lamb, M. E. Unfulfilled promises: A review of The dynamics of psychological development by Alexander Thomas and Stella Chess. Contemporary Psychology, 1980, 25, 906- 907.
Lamb, M. E., Easterbrooks, M. A., & Holden, G. W. Reinforcement and punishment among preschoolers: Characteristics, effects and correlates. Child Development, 1980, 51, 1230-1236.
Reprinted by Ginn Custom Publishing, Lexington, MA., 1982 et seq.
Lamb, M. E. On the origins and implications of sex differences in human sexuality. Behavioral and Brain Sciences, 1980, 3, 192-193.
Frodi, A. M., Lamb, M. E., & Wille, D. Mothers’ responses to the cries of normal and premature infants as a function of the birth status of their own child. Journal of Research in Personality, 1981, 15, 122-133.
Lamb, M. E. Cultural differences in father-child relationships—Japan and the United States— :Comments on Shwalb and Imaizumi’s paper. Hiroshima Forum for Psychology, 1981, 8, 65-67.
Stipek, D. J., Lamb, M. E., Zigler, E. F. OPTI: A measure of children’s optimism. Journal of Educational and Psychological Measurement, 1981, 41, 131-143.
Hwang, C.-P., Lamb, M. E., Frodi, A. M., Frodi, M., & Steinberg, J. The parent-infant relationship in traditional and nontraditional families: Attitudes and behavior. Goteborg Psychological Reports, 1981, 11, whole number 6.
Perloff, R. M., & Lamb, M. E. The development of gender roles: An integrative life-span perspective. J.S.A.S. Catalog of Selected Documents in Psychology, 1981, 11, 52 (Manuscript No. 2294).
Lamb, M. E., Garn, S. M., & Keating, M. T. Correlations between sociability and cognitive performance among eight-month-olds. Child Development, 1981, 52, 711-713.
Lamb, M. E., & Brown, A. L. (Eds.) Advances in developmental psychology (Vol. 1). Hillsdale, N.J.: Lawrence Erlbaum Associates, 1981.
Lamb, M. E. Developing trust and perceived effectance in infancy. In L. P. Lipsitt (Ed.), Advances in infancy research (Vol. 1). Norwood, N.J.: Ablex, 1981 (pp. 101- 127).
Lamb, M. E. Grief and mourning in children and adults: A review of Loss: Sadness and depression by John Bowlby. The Yale Review, 1981, 70, 463-466.
Lamb, M. E. Mothers and fathers: The special child’s special resources. The Forum (CEC New York State), 1981, 7 (2), pp. 5, 21.
Lamb, M. E. But where’s the contribution? Contemporary Psychology, 1981, 26, 487.

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Lamb, M. E. (ed.) The role of the father in child development (Revised edition). New York: Wiley, 1981.
Lamb, M. E. Fathers and child development: An integrative overview. In M. E. Lamb (Ed.), The role of the father in child development (Revised edition). New York: Wiley, 1981 (pp. 1-70).
Lamb, M. E. The development of father-infant relationships. In M. E. Lamb (Ed.), The role of the father in child development (Revised edition). New York: Wiley, 1981 (pp. 459-488).
Lamb, M. E. Six definitions of competence—Review of Aspects of the development of competence: The Minnesota symposium on child psychology (Vol. 14), W. A. Collins (Ed.). American Scientist, 1981, 69, 682.
Lamb, M. E. & Sherrod, L. R. (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: .: Lawrence Erlbaum Associates, 1981.
Sherrod, L. R., & Lamb, M. E. Infant social cognition: An introduction. In M. E. Lamb & L. R. Sherrod (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1981 (pp 1-10).
Lamb, M. E., & Easterbrooks, M. A. Individual differences in parental sensitivity: Origins, components, and consequences. In M. E. Lamb & L. R. Sherrod (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1981 (pp. 127-153).
Lamb, M. E. The development of social expectations in the first year of life. In M. E. Lamb & L. R. Sherrod (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1981 (pp. 155-175).
Stevenson, M. B., & Lamb, M. E. The effects of social experience and social style on cognitive competence and performance. In M. E. Lamb & L. R. Sherrod (Eds.), Infant social cognition: Empirical and theoretical considerations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1981 (pp. 375-394).
Lamb, M. E., Garn, S. M., & Keating, M. T. Correlations between sociability and cognitive performance among eight-month-olds. Child Development, 1981, 52, 711-713.
Lamb, M. E. Paternal influences on early socioemotional development. Journal of Child Psychology and Psychiatry, 1982, 23, 185-190.
Lamb, M. E. Review of Patterns of attachment: A psychological study of the Strange Situation. Journal of Child Psychology and Psychiatry, 1982, 23, 85-87.
Lamb, M. E., Garn, S. M., & Keating, M. T. Correlations between sociability and motor performance scores in eight-month-olds. Infant Behavior and Development, 1982, 5, 97-101.

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Olson G. M., & Lamb, M. E. Premature infants: Cognitive and social development in the first year of life. In J. M. Stack (Ed.), An interdisciplinary approach to the optimal development of infants: The special child. New York: Human Sciences Press, 1982 (pp. 71-89).
Hall, E. (with M. E. Lamb & M. J. Perlmutter) Child psychology today. New York: Random House, 1982.
Lamb, M. E. Second thoughts on first touch. Psychology Today, 1982, 16 (4), 9-11.
Lamb, M. E. On the familial origins of personality and social style. In L. Laosa & I. Sigel (Eds.), Families—Research and practice Vol 1. Families as learning environments for children. New York: Plenum, 1982 (pp. 179-202).
Lamb, M. E. Social interaction, attachment, and socioemotional development in infancy. In R. N. Emde & R. J. Harmon (Eds.), Development of attachment and affiliative systems. New York: Plenum, 1982 (pp. 195-212).
Lamb, M. E., Frodi, A. M., Hwang, C. -P., Frodi, M., & Steinberg, J. Effects of gender and caretaking role on parent-infant interaction. In R. N. Emde & R. J. Harmon (Eds.), Development of attachment and affiliative systems. New York: Plenum, 1982 (pp. 109-118).
Lamb, M. E., & Brown, A. L. (Eds.), Advances in developmental psychology (Vol. 2). Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982.
Lamb, M. E., & Hwang, C.-P. Maternal attachment and mother-neonate bonding: A critical review. In M. E. Lamb & A. L. Brown (Eds.), Advances in developmental psychology (Vol. 2). Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 1-39).
Lamb, M. E., & Goldberg, W. A. The father-child relationship: A synthesis of biological, evolutionary and social perspectives. In L. W. Hoffman, R. Gandelman & H. R. Schiffman (Eds.), Parenting: Its causes and consequences. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 55-73).
Lamb, M. E., & Campos, J. J. Development in infancy: An introduction. New York: Random House, 1982.
Lamb, M. E., Thompson, R. A. & Frodi, A. M. Early social development. In R. A. Vasta (Ed.), Strategies and techniques of child study. New York: Academic Press, 1982 (pp. 42-91).
Lamb, M. E., Frodi, A. M., Frodi, M., & Hwang, C. -P. Characteristics of maternal and paternal behavior in traditional and nontraditional Swedish families. International Journal of Behavioral Development, 1982, 5, 131-141.
Lamb, M. E., Frodi, A. M., Hwang, C. -P., Frodi, M., & Steinberg, J. Mother-and father-infant interaction involving play and holding in traditional and nontraditional Swedish families. Developmental Psychology, 1982, 18, 215-221.

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19
Reprinted in Psychologie Heute (German).
Reprinted in D. H. Olson & B. C. Miller (Eds.), Family Studies Review Yearbook (Vol. II). Beverly Hills, CA: Sage, 1984.
Lamb, M. E., Hwang, C.-P., Frodi, A. M., & Frodi, M. Security of mother-and father- infant attachment and its relation to sociability with strangers in traditional and nontraditional Swedish families. Infant Behavior and Development, 1982, 5, 355-367.
Reprinted in S. Chess & A. Thomas (Eds.), Annual progress in child psychiatry and child development. New York: Bruner/Mazel, 1983.
Thompson, R. A. , & Lamb, M E. Stranger sociability and its relationship to temperament and social experiences during the second year. Infant Behavior and Development, 1982, 5, 277-288.
Reprinted in S. Chess & A. Thomas (Eds.), Annual progress in child psychiatry and child development. New York: Bruner/Mazel, 1983.
Thompson, R. A., Lamb, M. E., & Estes, D. Stability of infant-mother attachment and its relationship to changing life circumstances in an unselected middle-class sample. Child Development, 1982, 53, 144-148.
Zigler, E. F., Lamb, M. E., & Child, I. L. Socialization and personality development. New York: Oxford University Press, 1982.
Lamb, M. E. Individual differences in infant sociability: Their origins and implications for cognitive development. In H. W. Reese & L. P. Lipsitt (Eds.), Advances in child development and behavior (vol. 16). New York: Academic Press, 1982 (pp. 213- 239).
Lamb, M. E. Raising caring, nurturing, sons. Sesame Street Parents’ Newsletter, 1982, 2 (7), 6-7.
Lamb, M. E. (Ed.) Nontraditional families: Parenting and child development. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982.
Translated and published in Japanese by Japan Uni Agency, Tokyo, 1998.
Lamb, M. E. Parental behavior and child development in nontraditional families: An introduction. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 1-12).
Lamb, M. E. Maternal employment and child development: A review. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 45-69).

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Lamb, M. E., Frodi, A. M., Hwang, C. -P., & Frodi, M. Varying degrees of paternal involvement in infant care: Attitudinal and behavioral correlates. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 117-137).
Lamb, M. E., & Sutton-Smith, B. (Eds.) Sibling relationships: Their development and significance across the lifespan. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982.
Lamb, M. E. Sibling relationships across the lifespan: An overview and introduction. In M. E. Lamb & B. Sutton-Smith (Eds.), Sibling relationships: Their development and significance across the lifespan. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1982 (pp. 1-11).
Elster, A. B., & Lamb, M. E. Adolescent fathers: A group potentially at risk for parenting failure. Infant Mental Health Journal, 1982, 3, 148-155.
Frodi, A. M., Lamb, M. E., Frodi, M., Hwang, C. -P., Forsstrom, B., & Corry, T. Stability and change in parental attitudes following an infant’s birth into traditional and nontraditional Swedish families. Scandinavian Journal of Psychology, 1982, 23, 53-62.
Lamb, M. E., & Hall, E. Bonding. Childbirth Educator, 1982, 2 (3), 18-23.
Lamb, M. E. The bonding phenomenon: Misinterpretations and their implications. Journal of Pediatrics, 1982, 101, 555-557.
Lamb, M. E. Early contact and mother-infant bonding: One decade later. Pediatrics, 1982, 70, 763-768.
Reprinted in D. H. Olson & R. Markoff (Eds.), Inventory of Marriage and Family Literature (Vol. 10). Beverly Hills, CA: Sage, 1984.
Lamb, M. E. Generalization and inferences about causality in research on nontraditional families: Some cautions. Merrill-Palmer Quarterly, 1982, 28, 157-161.
Lamb, M. E. Why Swedish fathers aren’t liberated. Psychology Today, 1982, 18 (10), 74-77.
Lamb, M. E. La influencia de la madre y del padre en el desarrollo del niño (Mothers’ and fathers’ influences on child development/Spanish). In H. R. Schaffer (Ed.), Nuevas perspectivas en psicología del desarrollo en lengua inglesa. Infancia y aprendizaje, 1983, 3, 83-101.
Lamb, M. E. Bonding: Does it really matter? The Health Connection, 1983, 1(6), 3-4.
Lamb, M. E. Fathers of exceptional children. In M. Seligman (Ed.), The family with a handicapped child: Understanding and treatment. New York: Grune & Stratton, 1983 (pp. 125-146).
Lamb, M. E. Letters to the Editor: Reply. Pediatrics, 1983, 71, 864.

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21
Lamb, M. E. Mother-infant bonding: A skeptical view. Faculty Journal (University of Utah School of Medicine), 1983, 6 (1), 9.
Lamb, M. E., & Charnov, E. L. A case for less selfing and more outbreeding in reviewing the literature. Behavioral and Brain Sciences, 1983, 6, 109.
Lamb, M. E., & Sagi, A. (Eds.) Fatherhood and family policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983.
Portuguese translation published 1998.
Lamb, M. E. Social policy issues pertaining to fatherhood: An introduction. In M. E. Lamb & A. Sagi (Eds.), Fatherhood and family policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983 (pp. 1-11).
Lamb, M. E., & Levine, J. A. The Swedish parental insurance policy: An experiment in social engineering. In M. E. Lamb & A. Sagi (Eds.), Fatherhood and family policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983 (pp. 39-51).
Levine, J. A., Pleck, J. H., & Lamb, M. E. The Fatherhood Project. In M. E. Lamb & A. Sagi (Eds.), Fatherhood and family policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983 (pp. 101-111).
Lamb, M. E., Russell, G., & Sagi, A. Summary and recommendations for public policy. In M. E. Lamb & A. Sagi (Eds.), Fatherhood and family policy. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1983 (pp. 247-258).
Elster, A. B., McAnarney, E., & Lamb, M. E. Parental behavior of adolescent mothers. Pediatrics, 1983, 71, 494-503.
Lamb, M. E., Frodi, M., Hwang, C. -P., & Frodi, A. M. Effects of paternal involvement on infant preferences for mothers and fathers. Child Development, 1983, 54, 450- 458.
Campos, J. J., Caplowitz-Barrett, K., Lamb, M. E., Goldsmith, H. H., & Stenberg, C. Socioemotional development. In P. H. Mussen (General editor), Carmichael’s handbook of child psychology; Volume 2, M. Haith & J. J. Campos (Eds.), Infancy and developmental psychobiology. New York: Wiley, 1983 (pp. 783-915).
Thompson, R. A., & Lamb, M. E. Individual differences in dimensions of socioemotional development in infancy. In R. Plutchik & H. Kellerman (Eds.), Emotion: Theory, research, and experience (vol. 2), Emotions in early development. New York: Academic Press, 1983 (pp. 87-114).
Thompson, R. A., & Lamb, M.E. Security of attachment and stranger sociability in infancy. Developmental Psychology, 1983, 19, 184-191.
Thompson, R. A., Lamb, M. E., & Estes, D. Harmonizing discordant notes: A reply to Waters. Child Development, 1983, 54, 521-524.

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22
Lamb, M. E. Friendly and bright. Childbirth Educator, 1983, 2 (3), 50-52.
Lamb, M. E. Review of “The place of attachment in human behavior” by Colin Murray Parkes and Joan Stevenson-Hinde. American Scientist, 1983, 71, 321.
Lamb, M. E., Frodi, A. M., Hwang, C. P., & Frodi, M. Interobserver and test retest reliability of Rothbart’s Infant Behavior Questionnaire. Scandinavian Journal of Psychology, 1983, 24, 153-156.
Lamb, M. E. Letters to the Editor: Reply to Sugarman and Goldberg. Journal of Pediatrics, 1983, 103, 830.
Lamb, M. E. Letters to the Editor: Reply to Emde and Osofsky. Pediatrics, 1983, 72, 750.
Lamb, M. E., Campos, J. J.. Hwang, C. -P., Leiderman, P. H., Sagi, A., & Svejda, M. Joint reply to “Mother-infant bonding: a joint rebuttal”. Pediatrics, 1983, 72, 574- 576.
Lamb, M. E. Letters to the Editor: More on infant-maternal bonding. Journal of Pediatrics, 1983, 103, 829.
Lamb, M. E. Early mother-neonate contact and the mother-child relationship. Journal of Child Psychology and Psychiatry, 1983, 24, 487-494.
Frodi, A. M., Lamb, M. E., Hwang, C. -P., & Frodi, M. Father-mother-infant interaction in traditional and nontraditional Swedish families: A longitudinal study. Alternative Lifestyles, 1983, 5, 142-163.
Lamb, M. E., & Zarbatany, L. Relationships among children. Science, 1983, 221, 356- 357. (Book review)
Lamb, M. E. Fathers and child rearing. Childbirth Educator, 1984, 3(4), 42-45.
Lamb, M. E. Father-child relationships in humans. In D. Taub (Ed.), Primate paternalism: An evolutionary and comparative view of male investment. New York: Van Nostrand, 1984 (pp. 407-430).
Lamb, M. E. Fathers, mothers, and childcare in the 1980s: Family influences on child development. In K. Borman, D. Quarm, & S. Gideonse (Eds.), Women in the workplace. Norwood, NJ: Ablex Publishing, 1984 (pp. 61-88).
Lamb, M. E. Fathers and child development. In Paternal absence and fathers’ roles: Hearing before the Select Committee on Children, Youth, and Families, US House of Representatives. Washington, D.C.: US Government Printing Office, 1984.
Lamb, M. E. Mothers, fathers, and childcare in a changing world. In J. Call, E. Galenson, & R. L. Tyson (Eds.), Frontiers of infant psychiatry (Vol. 2). New York: Basic Books, 1985 (pp. 343-362).

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23
Lamb, M. E. Portraits of Aussies at home. Contemporary Psychology, 1984, 29, 569- 670. (Book review)
Lamb, M. E. & Alvarez, W. F. Values: Development and intervention. Contemporary Psychology, 1984, 29, 121-122. (Book review)
Lamb, M. E., Brown, A. L., & Rogoff, B. (Eds.), Advances in developmental psychology (Vol. 3). Hillsdale, NJ: Lawrence Erlbaum Associates, 1984.
Lamb, M. E., Thompson, R. A., Gardner, W., Charnov, E. L., Estes, D. Security of Infantile attachment as assessed in the “Strange Situation”: Its study and biological interpretation. Behavioral and Brain Sciences, 1984, 7, 127-147.
Reprinted in S. Chess & A. Thomas (Eds.), Annual progress in child psychiatry and child development. New York: Brunner/Mazel, 1985.
Lamb, M. E., Gardner, W., Charnov, E. L., Thompson, R. A., & Estes, D. Studying the security of infant-adult attachment: A reprise. Behavioral and Brain Sciences, 1984, 7, 163-171.
Bornstein, M. H., & Lamb, M. E. (Eds.) Developmental psychology: An advanced textbook. Hillsdale, NJ: Lawrence Erlbaum Associates, 1984.
Lamb, M. E. Social and emotional development in infancy. In M. H. Bornstein & M. E.Lamb (Eds.), Developmental psychology: An advanced textbook. Hillsdale, NJ: Lawrence Erlbaum Associates, 1984 (pp. 241-277).
Dickstein, S., Thompson, R. A., Estes, D., Malkin, C., & Lamb, M. E. Social referencing and the security of attachment. Infant Behavior and Development, 1984, 7, 507-516.
Elster, A. B., & Lamb, M. E. Adolescent mother-infant-father relationships. Pediatric Research, 1984, 18, 97A. (Abstract)
Frodi, A. M., Murray, A. D., Lamb, M. E., & Steinberg, J. Biological and social determinants of responsiveness to infants in 10-to 15-year-old girls. Sex Roles, 1984, 10, 639-649.
Klinman, D., Kohl, R., and The Fatherhood Project [J. A. Levine, J. H. Pleck, & M. E. Lamb] Fatherhood USA. New York: Garland Press, 1984.
Thompson, R. A., & Lamb, M. E. Infants, mothers, families, and strangers. In M. Lewis (Ed.), Beyond the dyad. New York: Plenum, 1984 (pp 195-221).
Lamb, M. E. Another look at nonmaternal care. Contemporary Psychology, 1984, 29, 884-885. (Book review)
Thompson, R. A., & Lamb, M. E. Continuity and change in socioemotional development during the second year. In R. N. Emde & R. J. Harmon (Eds.), Continuity and discontinuity in development. New York, Plenum, 1984 (pp. 315-338).
Lamb, M. E. Bonding controversy. Childbirth Educator, 1984 (Fall), 13. (Letter)

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Thompson, R. A., & Lamb, M. E. Assessing qualitative dimensions of emotional responsiveness in infants: Separation reactions in the Strange Situation. Infant Behavior and Development, 1984, 7, 423-445.
Lamb, M. E. The role of today’s fathers. Medical Aspects of Human Sexuality, 1984, 18 (10), 102-109.
Lamb, M. E. A comparison of “second order effects” involving parents and siblings. Annual Report: Research and Clinical Center for Child Development, Faculty of Education, University of Hokkaido, Sapporo (Japan), 1984-85 (pp. 1-8).
Lamb, M. E. Family influences and the development of the young child. In C. S. Mcloughlin & D. F. Gullo (Eds.), Young children in context: Impact of self, family, and society on development. Springville, IL: Charles C. Thomas, 1985 (pp 154-182).
Lamb, M. E., Gaensbauer, T. J., Malkin, C. M., & Schultz, L. A. The effects of abuse and neglect on security of infant-adult attachment. Infant Behavior and Development, 1985, 8, 35-45.
Lamb, M. E., Thompson, R. A., Gardner, W., & Charnov, E. L. Infant-mother attachment: The origins and developmental significance of individual differences in Strange Situation behavior. Hillsdale, NJ: Lawrence Erlbaum Associates, 1985.
Zarbatany, L., & Lamb, M. E. Social referencing as a function of information source: Mothers versus strangers. Infant Behavior and Development, 1985, 8, 25-33.
Lamb, M. E., & Gilbride, K. Compatibility in parent-infant relationships: Origins and processes. In W. Ickes (Ed.), Compatible and incompatible relationships. New York: Springer, 1985 (pp 33-60).
Lamb, M. E., & Elster, A. B. Adolescent mother-infant-father relationships. Developmental Psychology, 1985, 21, 768-773.
Lamb, M. E., Pleck, J. H., Charnov, E. L., & Levine, J. A. Paternal behavior in humans. American Zoologist, 1985, 25, 883-894.
Lamb, M. E., Pleck, J. H., & Levine, J. A. The role of the father in child development: The effects of increased paternal involvement. In B. B. Lahey & A. E. Kazdin (Eds.), Advances in clinical child psychology (Vol. 8). New York: Plenum, 1985 (pp. 229-266).
Portions reprinted as “Effects of increased paternal involvement on fathers and mothers,” in C. Lewis & M. O’Brien (Eds.), Reassessing fatherhood: New observations on fathers and the modern family. London: Sage, 1987 (pp. 109- 125).
Portions reprinted as “Effects of paternal involvement on fathers and mothers,” in R. A. Lewis & M. Sussman (Eds.), Men’s changing roles in the family. New York: Haworth, 1986 (pp. 67-83).

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Also published in a special issue of Marriage and Family Review, 1986, 9 (3/4), 76-83.
Portions reprinted as “Effects of increased paternal involvement on children in two parent families,” in R. A. Lewis & R. E. Salt (Eds.), Men in families. Beverly Hills, CA: Sage, 1986 (pp. 141-158).
Thompson, R. A., Cicchetti, D., Lamb, M. E., & Malkin, C. M. The emotional responses of Down Syndrome and normal infants in the Strange Situation: The organization of affective behavior in infants. Developmental Psychology, 1985, 21, 828-841.
Lamb, M. E. Paternal deprivation reassessed. Contemporary Psychology, 1985, 30, 960-966. (Book review)
Sagi, A., Lamb, M. E., Lewkowicz, K. S., Shoham, R., Dvir, R., & Estes, D. . Security of infant-mother, -father, and -metapelet attachments among kibbutz-reared Israeli children. In I. Bretherton & E. Waters (Eds.), Growing points in attachment theory and research. Monographs of the Society for Research in Child Development, 1985, 50, serial no. 209, 257-275.
Sagi, A., Lamb, M. E., Shoham, R., Dvir, R., & Lewkowicz, K. S. Parent-infant interaction in families on Israeli kibbutzim. International Journal of Behavioral Development, 1985, 8, 273-284.
Lamb, M. E. Changing family patterns: Effects on young children. In K. Seifert (Ed.), The child in social context. Winnipeg, Canada: Faculty of Education Monograph Series, University of Manitoba, 1985 (pp. 9-21).
Lamb, M. E. Fear of flying. Parents Magazine, 1985, (August), 48-51.
Goldberg, W. A., Michaels, G. Y., & Lamb, M. E. Husbands’ and wives’ adjustment to pregnancy and first parenthood. Journal of Family Issues, 1985, 6, 483-503.
Lamb, M. E. Reply to Bachtold and Barton. Contemporary Psychology, 1985, 30.
Hall, E., Lamb, M. E., & Perlmutter, M. Child psychology today (2nd edition). New York: Random House, 1986.
Elster, A. B., & Lamb, M. E. Adolescent fathers. In J. B. Lancaster & B. A. Hamburg (Eds.), School-aged pregnancy and parenthood: Biosocial dimensions. New York: Aldine, 1986 (pp. 177-190).
Lamb, M. E. Review of The Psychobiology of Attachment and Separation edited by M. Reite and T. Field. American Scientist, 1986, 74, 321-322.
Lamb, M. E., & Malkin, C. M. The development of social expectations in distress relief sequences: A longitudinal study. International Journal of Behavioral Development, 1986, 9, 235-249.

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Pleck, J. H., Lamb, M. E., & Levine, J. A. Epilog: Facilitating future change in men’s family roles. In R. A. Lewis & M. Sussman (Eds.), Men’s changing roles in the family. New York: Haworth, 1986 (pp. 11-16).
Also published in a special issue of Marriage and Family Review, 1986, 9(3/4), 11-16.
Thompson, R. A., & Lamb, M. E. Infant-mother attachment: New directions for theory and research . In P. B. Baltes, D. Featherman, & R. M. Lerner (Eds.), Life-span development and behavior (Vol. 7). Hillsdale, NJ: Lawrence Erlbaum Associates, 1986 (pp. 1-41).
Lamb, M. E., Brown, A. L., & Rogoff, B. (Eds.) Advances in developmental psychology (Vol. 4). Hillsdale, NJ: Lawrence Erlbaum Associates, 1986.
Elster, A. B., & Lamb, M. E. (Eds.) Adolescent fatherhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1986.
Lamb, M. E. & Elster, A. B. Parental behavior of adolescent mothers and fathers. In A. B. Elster & M. E. Lamb (Eds.), Adolescent fatherhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1986 (pp. 89-106).
Teti, D. & Lamb, M. E. Sex role development in adolescent males. In A. B. Elster & M. E. Lamb (Eds.), Adolescent fatherhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1986 (pp. 19-30).
Elster, A. B. & Lamb, M. E. Epilogue: Research priorities. In A. B. Elster & M. E. Lamb (Eds.), Adolescent fatherhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1986 (pp.193-195).
Lamb, M. E., Thompson, R. A., Gardner, W., & Charnov, E. L. Convergent approaches to understanding Strange Situation behavior. Behavioral and Brain Sciences, 1986, 9, 559-561.
Lamb, M. E. (Ed.) The father’s role: Applied perspectives. New York: Wiley, 1986.
Lamb, M. E. The changing roles of fathers. In M. E. Lamb (Ed.), The father’s role: Applied perspectives. New York: Wiley, 1986 (pp. 3-27).
Reprinted in M. E. Lamb (Ed.), The father’s role: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1987 (pp. 3-25).
Reprinted in J. L. Shapiro, M. J. Diamond, & M. Greenberg (Eds.), Becoming a father: Contemporary, social, developmental, and clinical perspectives. New York: Springer, 1995 (PP. 18-35).
Translated (Portuguese) and reprinted in Analise Psicologica, 1992, 10, 19-34.

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Sagi, A., Lamb, M. E., & Gardner, W. Relations between Strange Situation behavior and stranger sociability among infants on Israeli kibbutzim. Infant Behavior and Development, 1986, 9, 271-282.
Gardner, W., Lamb, M. E., Thompson, R. A., & Sagi, A. On individual differences in Strange Situation behavior: Categorical and continuous measurement systems in a cross- cultural data set. Infant Behavior and Development, 1986, 9, 355-375.
Lamb, M. E., Elster, A. B., Peters, L. J., Kahn, J. S., & Tavare, J. Characteristics of married and unmarried adolescent mothers and their partners. Journal of Youth and Adolescence, 1986, 15, 487-496.
Reprinted in R. M. Lerner (Ed.), Adolescence: Development, diversity, and context. Hamden, CT: Garland Press, in press.
Lamb, M. E., & Nash, A. Exploring the biologies of relationships. Contemporary Psychology, 1986, 31, 757-758. (Book review)
Lamb, M. E., Elster, A. B., & Tavare, J. Behavioral profiles of adolescent mothers and partners with varying intracouple age differences. Journal of Adolescent Research, 1986, 1, 399-408.
Lamb, M. E., & Bornstein, M. B. Development in infancy. New York: Random House, 1987.
Lamb, M. E., Pleck, J. H., Charnov, E. L., & Levine, J. A. A biosocial perspective on paternal behavior and involvement. In J. B. Lancaster, J. Altmann, A. S. Rossi, & L.R. Sherrod (Eds.), Parenting across the lifespan: Biosocial dimensions. Hawthorne, N Y: Aldine, 1987 (pp. 111-142). Reprinted by Transaction/Aldine in 2010.
Lamb, M. E. (Ed.) The father’s role: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1987.
Elster, A. B., Lamb, M. E., Peters, L., Kahn, J., & Tavare, J. Judicial involvement and conduct problems of fathers of infants born to adolescent mothers. Pediatrics, 1987, 79, 230-234.
Lamb, M. E. Review of Lewis and Saarni, “The socialization of emotions.” American Scientist, 1987, 75, 86-87. (Book review)
Lamb, M. E. Baby. In the New book of Knowledge. New York: Grolier, 1987.
Lamb, M. E. Will the real new father please stand up? Parents Magazine, 1987, 62(6), 77-80.
Lamb, M. E. Niche picking by siblings and scientists. Behavioral and Brain Sciences, 1987, 10, 30.
Lamb, M. E. Distinctions, distinctions, distinctions.... Behavioral and Brain Sciences, 1987, 10, 79.

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Lamb, M. E. Review of W. W. Hartup and Z. Rubin, Relations and development. American Scientist, 1987, 75, 209-210. (Book review)
Lamb, M. E., Morrison, D., & Malkin, C. M. The development of infant social expectations in face-to-face interaction. Merrill-Palmer Quarterly, 1987, 33, 241-254.
Teti, D. M., Lamb, M. E., & Elster, A. B. Long-range socioeconomic and marital consequences of adolescent marriage in three cohorts of adult males. Journal of Marriage and the Family, 1987, 49, 499-506.
Lamb, M. E., Hopps, K., & Elster, A. B. Strange Situation behavior of infants with adolescent mothers. Infant Behavior and Development, 1987, 10, 39-48.
Elster, A. B., Lamb, M. E., Tavare, J., & Ralston, C. W. The medical and psychosocial impact of comprehensive care on adolescent pregnancy and parenthood. Journal of the American Medical Association, 1987, 258, 1187-1192.
Elster, A. B., Lamb, M. E., & Tavare, J. The association between behavioral and school problems and fatherhood in a national sample of adolescent males. Journal of Pediatrics, 1987, 111, 932-936.
Lamb, M. E. Predictive implications of individual differences in attachment. Journal of Consulting and Clinical Psychology, 1987, 55, 817-824.
Lamb, M. E., & Bornstein, M. H. (Eds.) Developmental psychology: An advanced textbook (Revised Edition). Hillsdale, NJ: Lawrence Erlbaum Associates, 1988.
Translated into Italian by F. Simion and published as Lo sviluppo percettivo, cognitivo e linguistico. Milano, Italy: Raffaelo Cortina Editore, 1992.
Lamb, M. E. Social and emotional development. In M. E. Lamb & M. H. Bornstein (Eds.), Developmental psychology: An advanced textbook (Revised Edition). Hillsdale, NJ: Lawrence Erlbaum Associates, 1988 (pp. 359-410).
Lamb, M. E., Hwang, C.-P., Bookstein, F. L., Broberg, A., Hult, G., & Frodi, M. The development of social competence in Swedish preschoolers. Developmental Psychology, 1988, 24, 58-70.
Oppenheim, D., Sagi, A., & Lamb, M. E. Infant-adult attachments on the kibbutz and their relation to socioemotional development four years later. Developmental Psychology, 1988, 24, 427-433.
Nakagawa, M., Lamb, M. E., & Miyake, K. Psychological experiences of Japanese infants in the Strange Situation. Annual Report: Research and Clinical Center for Child Development, Faculty of Education, University of Hokkaido, Sapporo (Japan), 1987-88, 13-24.

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Lamb, M. E., Hwang, C.-P., Broberg, A., & Bookstein, F. L. The effects of out-of-home care on the development of social competence in Sweden: A longitudinal study. Early Childhood Research Quarterly, 1988, 3, 379-402.
Reprinted in N. Fox & G. G. Fein (Eds.), Infant day care: The current debate . Norwood, NJ: Ablex, 1990 (pp. 145-168).
Lamb, M. E., Hwang, C.-P., Broberg, A., Bookstein, F. L., Hult, G., & Frodi, M. The determinants of paternal involvement in primiparous Swedish families. International Journal of Behavioral Development, 1988, 11, 433-449.
Lamb, M. E. The ecology of adolescent pregnancy and parenthood. In A. Pence (Ed.), Ecological research with children and families: From concepts to methodology. New York: Teachers College Press, 1988. (pp. 99-121)
Lamb, M. E. Review of “Fatherhood today: Men’s changing roles in the family” by P. Bronstein & C. P. Cowan. Child Development Abstracts and Bibliography, 1988, 62, 241. (Book Review)
Lamb, M. E., Hwang, C.-P., & Broberg, A. Associations between parental agreement regarding child-rearing and the characteristics of families and children in Sweden. International Journal of Behavioral Development, 1989, 12, 115-129.
Lamb, M. E., & Oppenheim, D. Fatherhood and father-child relationships: The last five years of research. In S. Cath, A. Gurwitt, & L. Gunsberg (Eds.), Fathers and their families. Hillsdale, NJ: Analytic Press, 1989. (pp. 11-26)
Lamb, M. E., & Nash, A. Parent-infant attachment and peer interaction. In T. J. Berndt & G. W. Ladd (Eds.), Peer relationships in child development. New York: Wiley, 1989. (pp. 219-245)
Elster, A. B., Lamb, M. E. & Kimmerly, N. Perceptions of parenthood among adolescent fathers. Pediatrics, 1989, 83, 758-765.
Hwang, C.-P., Lamb, M. E., & Broberg, A. The development of social and intellectual competence in Swedish preschoolers raised at home and in out-of-home care facilities. In K. Kreppner & R. M. Lerner (Eds.), Family systems and life-span development. Hillsdale, NJ: Lawrence Erlbaum Associates, 1989 (pp. 105-127).
Teti, D. M., & Lamb, M. E. Socioeconomic and marital outcomes of adolescent marriage, adolescent childbirth, and their co-occurrences. Journal of Marriage and the Family, 1989, 51, 203-212.
Broberg, A., Hwang, C.-P., Lamb, M. E., & Ketterlinus, R. D. Child care effects on socioemotional and intellectual competence in Swedish preschoolers. In J. S. Lande, S. Scarr & N. Gunzenhauser (Eds.), Caring for children: Challenge to America. Hillsdale, NJ: Erlbaum, 1989 (pp. 49-75).

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Lamb, M. E. & Sternberg, K. J. Tagesbetreuung [Daycare]. In H. Keller (Ed.), Handbuch der Kleinkindforschung. Heidelberg: Springer-Verlag, 1989 (pp. 587-608).
Lamb, M. E. Father’s role or fathers’ roles? Contemporary Psychology, 1989, 34, 551.
Lamb, M. E. Social development. Pediatric Annals, 1989, 18, 292-297.
Ketterlinus, R. D., Bookstein, F. L., Sampson, P. D., & Lamb, M. E. Partial least squares analysis in developmental psychopathology. Development and Psychopathology, 1989, 1, 351-371.
Lamb, M.E., & Sternberg, K.J. Some thoughts about infant daycare. Annual Report: Research and Clinical Center for Child Development, University of Hokkaido, Sapporo, Japan, 1988-89 (pp. 71-77).
Lamb M. E. Biological functionalism and developmental (dis)-continuity. European Journal of Psychology of Education, 1989, IV, 159-160.
Lamb, M. E. New approaches to the study of daycare. Human Nature, 1990, 1, 207-210.
Lamb, M. E., & Elster, A. B. Adolescent parenthood. In G. H. Brody & I. E. Sigel (Eds.), Methods of family research: Biographies of research projects. Volume II: Clinical populations. Hillsdale, NJ: Lawrence Erlbaum Associates, 1990 (pp. 159-190).
Broberg, A., Lamb, M. E., & Hwang, C.-P. Inhibition: Its stability and correlates in 16-to 20-month-old children. Child Development, 1990, 61, 1153-1163.
Elster, A. B., Ketterlinus, R. D. & Lamb, M. E. Association between parenthood and problem behavior in a national sample of adolescents. Pediatrics, 1990, 85, 1044-1050.
Ketterlinus, R. D., Henderson, S., & Lamb, M. E. Maternal age, sociodemographics, prenatal health and behavior: Influences on neonatal risk status. Journal of Adolescent Health Care, 1990, 11, 423-431.
MacKinnon, C., Lamb, M. E., Belsky, J., & Baum, C. An affective-cognitive model of mother-child aggression. Development and Psychopathology, 1990, 2, 1-14.
Broberg, A., Lamb, M. E., Hwang, P., & Bookstein, F. L. Factors related to verbal abilities in Swedish preschoolers. British Journal of Developmental Psychology, 1990, 8, 335-349.
Lamb, M. E., & Sternberg, K. J. Do we really know how daycare affects children? Journal of Applied Developmental Psychology. 1990, 11, 351-379.
Lamb, M. E., & Meyer, D. Fathers of children with special needs. In M. Seligman (Ed.), The family with a handicapped child (Revised edition). Boston: Allyn and Bacon, 1991 (pp. 151-179).

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Lamb, M. E., & Teti, D. M. Parenthood and marriage in adolescence: Associations with educational and occupational attainment. In R.M. Lerner, A.C. Petersen, & J. Brooks-Gunn (Eds.), Encyclopedia of adolescence. New York: Garland, 1991 (pp. 742-745).
Lamb, M. E., & Teti, D. M. Childbirth and marriage, adolescent: Associations with long-term marital stability. In R.M. Lerner, A.C. Petersen, & J. Brooks-Gunn (Eds.), Encyclopedia of adolescence. New York: Garland, 1991 (pp.111-114).
Lamb, M. E., & Ketterlinus, R. D. Parental behavior, adolescent. In R.M. Lerner, A.C. Petersen, & J. Brooks-Gunn (Eds.), Encyclopedia of adolescence. New York: Garland, 1991 (pp. 735-738).
Ketterlinus, R. D., & Lamb, M. E. Childbearing, adolescent: Obstetric and filial outcomes. In R.M. Lerner, A.C. Petersen & J. Brooks-Gunn (Eds.), Encyclopedia of adolescence. New York: Garland, 1991 (pp. 107-110).
Lamb, M. E. Foreword. In F. W. Bozett & S. M. H. Hanson (Eds.), Fatherhood and families in cultural context. New York & Heidelberg: Springer, 1991 (pp.ix-xii).
Hwang, C-P, Broberg, A., & Lamb, M. E. The Gothenburg child care project. In E.C. Melhuish & P. Moss (Eds.), Day care and the young child: International perspectives. London: Routledge, 1991 (pp. 102-120).
Lamb, M. E., Teti, D. M., Nash, A., & Bornstein, M. H. Infancy. In M. Lewis (Ed.), Comprehensive textbook of child psychiatry. Baltimore: Williams and Wilkins, 1991 (pp. 222-256).
Lamb, M. E., Teti, D. M., Sternberg, K., & Malkin, C. M. Child maltreatment and the child welfare system. In F.S. Kessel, M. H. Bornstein, & A. J. Sameroff (Eds.), Contemporary constructions of the child: Essays in honor of William Kessen. Hillsdale, NJ: Lawrence Erlbaum Associates, 1991 (pp. 195-207).
Sternberg, K. J., Lamb, M. E., Hwang, C-P., Broberg, A., Ketterlinus, R. D., & Bookstein, F. L. Does out-of-home care affect compliance in preschoolers? International Journal of Behavioral Development, 1991, 14, 45 -65.
Lamb, M. E. & Keller, H. (Eds.) Infant development: Perspectives from German-speaking countries. Hillsdale, NJ: Lawrence Erlbaum Associates, 1991.
Lamb, M. E. & Keller, H. Introduction. In M. E. Lamb & H. Keller (Eds.), Infant development: Perspectives from German-speaking countries. Hillsdale, NJ: Lawrence Erlbaum Associates, 1991 (pp. 1-13).
Sternberg, K. J. & Lamb, M. E. Can we ignore context in the definition of child maltreatment? Development and Psychopathology, 1991, 3, 87-93.

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Ketterlinus, R. D., Henderson, S. H., & Lamb, M. E. The effects of maternal age-at-birth on children’s cognitive development. Journal of Research in Adolescence, 1991, 1, 173-188.
Ketterlinus, R. D., Lamb, M. E., & Nitz, K. Developmental and ecological sources of stress among adolescent parents. Family Relations, 1991, 40, 435-441.
Lamb, M. E. “N” is for knowledge and the Nebraska Symposium. Contemporary Psychology, 1991,36, 1044-1046. (Book review)
Bornstein, M. H., & Lamb, M.E. Development in infancy (Third edition). New York: McGraw Hill, 1992.
Lamb, M.E., Sternberg, K.J. & Prodromidis, M. Nonmaternal care and the security of infant-mother attachment: A reanalysis of the data. Infant Behavior and Development, 1992, 15, 71-83.
Scholmerich, A., & Lamb, M. E. Check-list comportamentali nella ricerca sulle interazione madre-bambino e padro-bambino. [The use of check-lists in research on mother-infant and father infant interaction.] Eta Evolutiva, 1992,41, 77-85.
Lamb, M. E., & Sternberg, K. J. Establishing the design. Children and Youth Services Review, 1992, 14, 157-165.
Lamb, M. E., Sternberg, K. J., Hwang, C-P., & Broberg, A. (Eds.), Child care in context: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1992.
Lamb, M. E., & Sternberg, K. J. Sociocultural perspectives on nonparental childcare. In M. E. Lamb, K. J. Sternberg, C-P. Hwang, & A. Broberg (Eds.), Child care in context: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1992 (pp. 1-23).
Partially reprinted as “L’accueil du jeune enfant dans son milieu.” In B. Pierrehumbert (Ed.), L’accueil du jeune enfant: Politiques et recherches dans les differents pays. [Child care in infancy: Policy and research issues in different countries]. Paris: ESF Editeur, 1992 (pp. 21-38).
Partially revised, translated, and reprinted as “Tagesbetreuung im kulturellen Kontext.” In L. Ahnert (Ed.), Tagesbetreuung für Kinder unter drei Jahren: Theorien und Tatsachen. [Day care for children under three years: Theories and facts]. Berlin: Huber, 1998 (14-28).
Lamb, M. E., Sternberg, K. J., & Ketterlinus, R. D. Childcare in the United States: The modern era. In M. E. Lamb, K. J. Sternberg, C-P. Hwang, & A. Broberg (Eds.), Child care in context: Cross-cultural perspectives. Hillsdale, NJ: Lawrence Erlbaum Associates, 1992 (pp. 207-222).

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Lamb, M. E., & Sternberg, K. J. Un réexamen du lien entre garde non parentale et sécurité de l’attachement mère-enfant. [Further examination of the relationship between nonmaternal care and the security of infant-mother attachment.] In B. Pierrehumbert (Ed.), L’accueil du jeune enfant: Politiques et recherches dans les differents pays. [Child care in infancy: Policy and research issues in different countries]. Paris: ESF Editeur, 1992. (pp. 141-149)
Ketterlinus, R. D., Henderson, S. H., & Lamb, M. E. Les effets du type de garde, de l’emploi maternel et de l’estime de soi sur le comportement des enfants. [The effect of type of child care and maternal employment on children’s behavioral adjustment and self-esteem]: In B. Pierrehumbert (Ed.), L’accueil du jeune enfant: Politiques et recherches dans les differents pays. [Child care in infancy: Policy and research issues in different countries]. Paris: ESF Editeur, 1992. (pp. 150-163)
Lamb, M. E. Foreword for Human development in cultural context: A third world perspective by A. Bame Nsamenang. Beverly Hills, CA: Sage, 1992.(pp. ix-xi)
Ketterlinus, R. D., Lamb, M. E., Nitz, K., & Elster, A. B. Adolescent non-sexual and sexrelated problem behaviors. Journal of Adolescent Research, 1992, 7, 431-456.
Bornstein, M.H., & Lamb, M.E. (Eds.) Developmental psychology: An advanced textbook (Third edition). Hillsdale, NJ: Lawrence Erlbaum Associates, 1992.
Lamb, M.E., Ketterlinus, R.D., & Fracasso, M.P. Parent-child relationships. In M.H. Bornstein & M.E. Lamb (Eds.), Developmental psychology: An advanced textbook (Third edition). Hillsdale, NJ: Lawrence Erlbaum Associates, 1992 (pp. 465- 518).
Sternberg, K. J., & Lamb, M. E. Evaluations of attachment relationships by Jewish Israeli day-care providers. Journal of Cross-Cultural Psychology, 1992, 23, 285-299.
Nakagawa, M., Lamb, M.E., & Miyake, K. Antecedents and correlates of the Strange Situation behavior of Japanese infants. Journal of Cross-Cultural Psychology, 1992, 23, 300-310
Krispin, O., Sternberg, K. J., & Lamb, M. E. The dimensions of peer evaluation in Israel: A cross-cultural perspective. International Journal of Behavioral Development, 1992, 15, 299-314.
Nakagawa, M., Teti, D. M., & Lamb, M. E. An ecological study of child-mother attachments among Japanese sojourners in the United States. Developmental Psychology, 1992, 28, 584-592.
Lamb, M. E. Review of “Family violence in cross-cultural perspective” by David Levinson. Journal of Cross-Cultural Psychology, 1992, 23, 535-536. (Book review)
MacKinnon, C. E., Lamb, M. E., Arbuckle, B., Baradaran, L.P., & Volling, B. The relationship between biased maternal and filial attributions and the aggressiveness of their interactions. Development and Psychopathology, 1992, 4, 403-415.

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Lamb, M. E. Les effets de la garde non parentale: Que savons-nous au juste? [ The effects of nonparental childcare: What do we really know?] Apprentissage et Socialisation, 1992, 15, 195-207.
Sternberg, K. J., Lamb, M. E., Greenbaum, C., Cicchetti, D., Dawud, S., Cortes, R. M., Krispin, O., & Lorey, F. Effects of domestic violence on children’s behavior problems and depression. Developmental Psychology, 1993, 29, 44-52.
Lamb, M. E. Collected essays on infant socialization. Review of “Social influences and socialization in infancy”. Contemporary Psychology, 1993, 38, 93-94.
Lamb, M. E. Naziism, biological determinism, sociobiology, and evolutionary theory: Are they necessarily synonymous? International Journal of Comparative Psychology, 1993, 6, 149-152. (Book review)
Lamb, M. E. Review of “Fatherhood in America: A history” by R.L. Griswold & “Fathers and families: Paternal factors in child development” by H. B. Biller. Journal of Marriage and the Family,1993, 55, 1047-1049.
Lamb, M. E. (Guest Editor) Birth management and perinatal care: Biosocial perspectives. Human Nature,1993, 4(4), and 1994, 5(1). Guest editorial: 4(4), 323-328.
Nsamenang, A. B., & Lamb, M. E. The acquisition of socio-cognitive competence by Nso children in the Bamenda Grassfields of Northwest Cameroon. International Journal of Behavioral Development, 1993, 16, 429-441.
Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Interviewing young victims of child maltreatment. In M. Hovav (Ed.), Sexual abuse of children: The law, investigator, and the court. Tel Aviv, Israel: Shirikova Publishers,1993 (pp. 109-131). (Translated into Hebrew for publication.)
Lamb, M. E. Biological determinism redux: Comment on Silverstein (1993). Journal of Family Psychology, 1993, 7, 301-304.
Lamb, M. E., Sternberg, K. J., Knuth, N., Hwang, C.-P., & Broberg, A. G. Peer play and nonparental care experiences. In. H. Goelman & E. V. Jacobs (Eds.), Children’s play in child care settings. Albany, NY: State University of New York Press, 1994 (pp. 37-52).
Nsamenang, A. B., & Lamb, M. E. Socialization of Nso children in the Bamenda Grassfields of Northwest Cameroon. In. P. Greenfield & R. Cocking (Eds.), Cross-cultural roots of minority child development. Hillsdale, NJ: Lawrence Erlbaum Associates, 1994 (pp.133-146).
Lamb, M. E. Infant care practices and the application of knowledge. In C. B. Fisher & R. M. Lerner (Eds.), Applied developmental psychology. New York: McGraw Hill, 1994 (pp. 23-45).

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Ketterlinus, R. D., & Lamb, M. E. (Eds.) Adolescent problem behavior: Issues and research. Hillsdale, NJ: Lawrence Erlbaum Associates, 1994.
Ketterlinus, R. D., & Lamb, M. E. Adolescent problem behaviors: An introduction. In R. D. Ketterlinus & M. E. Lamb (Eds.), Adolescent problem behavior: Issues and research. Hillsdale, NJ : Lawrence Erlbaum Associates, 1994 (pp. vii-xii).
Ketterlinus, R. D., Lamb, M. E., & Nitz, K. A. Adolescent nonsexual and sex-related problem behaviors: Their prevalence, consequences, and co-occurrence. In R. D. Ketterlinus & M. E. Lamb (Eds.), Adolescent problem behavior: Issues and research. Hillsdale, NJ : Lawrence Erlbaum Associates, 1994 (pp. 17-39).
Lamb, M. E. (Rapporteur) The investigation of child sexual abuse: An interdisciplinary consensus statement. Expert Evidence, 1994, 2, 151-156; Journal of Child Sexual Abuse, 1994, 3(4), 93-106; Family Law Quarterly, 1994, 28, 151-162; Scandinavian Journal of Social Welfare, 1994, 3, 175-180; BASPCAN News, 15 (September), 12-17; and Child Abuse and Neglect, 1994, 18, 1021-1028.
Malkin, C. M., & Lamb, M. E. Child maltreatment: A test of sociobiological theory. Journal of Comparative Family Studies, 1994, 25, 121-134.
Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Factors influencing the reliability and validity of statements made by young victims of sexual maltreatment. Journal of Applied Developmental Psychology, 1994, 15, 255-280.
Reprinted in: Sexual abuse interviewing guidebook. Ithaca, NY: New York State Child Protective Services Training Institute, 1997.
MacKinnon-Lewis, C., Volling, B. L., Lamb, M. E., Dechman, K., Rabiner, D., & Curtner, M. E. A cross-contextual analysis of children’s social competence: From family to school. Developmental Psychology, 1994, 30, 325-333.
Lamb, M. E. Heredity, environment, and the question “why?” Behavioral and Brain Sciences, 1994, 17, 751.
Fracasso, M. P., Porges, S. W., Lamb, M. E., & Rosenberg, A. A. Cardiac activity in infancy: Reliability and stability of individual differences. Infant Behavior and Development, 1994, 17, 277-284.
Lamb, M. E. Review of John Snarey’s “How fathers care for the next generation: A four decade study”. Human Development, 1994, 37, 385-387. (Book review).
Lamb, M. E. Response to Commentary on Early contact, bonding, and the development of mother-infant relationships. Journal of Developmental and Behavioral Pediatrics, 1994, 15, 384-385.

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Sternberg, K. J., Lamb, M. E., Greenbaum, C., Dawud, S., Cortes, R. M., & Lorey, F. The effects of domestic violence on children’s perceptions of their perpetrating and nonperpetrating parents. International Journal of Behavioral Development, 1994, 17, 779-795.
Lamb, M. E. De invloed van de vader op de ontwikkeling van het kind. [The influence of the father on the development of the child]. Familia, 1994, 1, 53-64. [Dutch]
Reprinted as:
Lamb, M. E. Paternal influences on child development. In M. C.P. van Dongen, G. A. B. Frinking, & M. J. G. Jacobs(Eds.), Changing fatherhood: An interdisciplinary perspective. Amsterdam, The Netherlands: Thesis Publishers, 1995. (pp. 145- 157)
Prodromidis, M., Lamb, M. E., Sternberg, K. J., Hwang, C. P., & Broberg, A. G. Aggression and noncompliance among Swedish children in center-based care, family day-care, and home care. International Journal of Behavioral Development, 1995, 18, 43-62.
Haynie, D. L., & Lamb, M. E. Positive and negative facial expressiveness in 7-, 10-, and 13-month-old infants. Infant Behavior and Development, 1995, 18, 257-259.
Scholmerich, A., Fracasso, M. P., Lamb, M. E., & Broberg, A. G. Interactional harmony at 7 and 10 months of age predicts security of attachment as measured by Q-sort ratings. Social Development, 1995, 4, 62-74.
Leyendecker, B., Lamb, M. E., Scholmerich, A., & Fracasso, M. P. The social worlds of 8- and 12-month-old infants: Early experiences in two subcultural contexts. Social Development, 1995, 4, 194-208.
Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Making children into competent witnesses: Reactions to the amicus brief in re Michaels. Psychology, Public Policy, and the Law, 1995, 1, 438-449.
Nsamenang, A. B., & Lamb, M. E. The force of beliefs: How the parental values of the Nso of Northwest Cameroon shape children’s progress toward adult models. Journal of Applied Developmental Psychology, 1995, 16, 629-643.
Horowitz, S. W., Lamb, M. E., Esplin, P. W., Boychuk, T. D., Reiter-Lavery, L., & Krispin, O. Establishing ground truth in studies of child sexual abuse. Expert Evidence, 1995, 4, 42-51.
Hwang, C. P., Lamb, M. E., & Sigel, I. (Eds.) Images of childhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1996.
Lamb, M. E., & Hwang, C. P. Images of childhood: An introduction. In C. P. Hwang, M. E. Lamb, & I. Sigel (Eds.), Images of childhood. Hillsdale, NJ: Lawrence Erlbaum Associates, 1996. (pp. 1-12)

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Sternberg, K. J., Lamb, M. E., & Hershkowitz, I. Child sexual abuse investigations in Israel. Criminal Justice and Behavior, 1996, 23, 322-337.
Also published as:
Child victims and witnesses in Israel: Evaluating innovative practices. B. L. Bottoms & G. S. Goodman (Eds.), International perspectives on child abuse and children’s testimony: Psychological research and law. Thousand Oaks, CA: Sage Publications, 1996. (pp. 62-76)
Lamb, M. E., Nash, A., Teti, D. M., & Bornstein, M. H. Infancy. In M. Lewis (Ed.), Child and adolescent psychiatry: A comprehensive textbook (Second Edition). Baltimore: Williams and Wilkins, 1996. (pp. 241-270)
Sternberg, K. J., Lamb, M. E., Hershkowitz, I., Esplin, P. W., Redlich, A., & Sunshine, N. The relationship between investigative utterance types and the informativeness of child witnesses. Journal of Applied Developmental Psychology, 1996, 17, 439- 451.
Lamb, M. E. Effects of nonparental child care on child development: An update. Canadian Journal of Psychiatry, 1996, 41, 330-342.
Lamb, M. E. Review of “Fatherless America: Confronting our most urgent social problem”. Journal of Marriage and the Family, 1996, 58, 526-527. [Book review]
Wessels, H., Lamb, M. E., & Hwang, C. P. Cause and causality in daycare research: An investigation of group differences in Swedish child care. European Journal of Educational Psychology, 1996, 11, 231-245.
Lamb, M. E. Review of “Divergent realities: The emotional lives of mothers, fathers and adolescents.” Social Service Review, 1996, 70, 489-490. [Book review]
Lamb, M. E. Fathering in America: New challenges and champions. Contemporary Psychology, 1996, 41, 911. [Book review]
Lamb, M. E, Hershkowitz, I., Sternberg, K. J., Esplin, P. W., Hovav, M., Manor, T., & Yudilevitch, L. Effects of investigative utterance types on Israeli children’s responses. International Journal of Behavioral Development, 1996, 19, 627-637.
Lamb, M. E., Hershkowitz, I., Sternberg, K. J., Boat, B., & Everson, M. D. Investigative interviews of alleged sexual abuse victims with and without anatomical dolls. Child Abuse and Neglect, 1996, 20, 1239-1247.
Pierrehumbert, B., Ramstein, T., Krucher, R., El-Najjar, S., Lamb, M. E., & Halfon, O. L’evaluation du lieu de vie du jeune enfant. Bulletin de Psychologie, 1996, 49, 565-584.
Lamb, M. E. Review of “Family, justice, and delinquency”. Family Relations, 1996, 45, 355. [Book review]

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Lamb, M. E. What is selected in group selection? Behavioral and Brain Sciences, 1996, 19, 786-787.
Lamb, M. E., Sternberg, K. J., Esplin, P. W., Hershkowitz, I., Orbach, Y., & Hovav, M. Criterion-based content analysis: A field validation study. Child Abuse and Neglect, 1997, 21, 255-264.
Lamb, M. E. Review of “The book of David: How preserving families can cost children’s lives”. Journal of Marriage and the Family, 1997, 59, 235-236. [Book review]
Lamb, M. E. (Ed.) The role of the father in child development (Third edition). New York: Wiley, 1997.
Lamb, M. E. Fathers and child development: An introductory overview and guide. In M. E. Lamb (Ed.), The role of the father in child development (Third edition). New York: Wiley, 1997. (pp. 1-18; 309-313)
Lamb, M. E. The development of father-infant relationships. In M. E. Lamb (Ed.), The role of the father in child development (Third edition). New York: Wiley, 1997. (pp. 104-120; 332-342)
Lamb, M. E., & Billings, L. L. Fathers of children with special needs. In M. E. Lamb (Ed.), The role of the father in child development (Third edition). New York: Wiley, 1997. (pp. 179-190; 356-360)
Sternberg, K. J., Lamb, M. E., & Dawud-Noursi, S. Using multiple informants and crosscultural research to study the effects of domestic violence on developmental psychopathology: Illustrations from research in Israel. In S. S. Luthar, J. A. Burack, D. Cicchetti, & J. R. Weisz (Eds.), Developmental psychopathology: Perspectives on adjustment, risk, and disorder. New York: Cambridge University Press, 1997. (pp. 417-436)
Broberg, A. G., Wessels, H., Lamb, M. E., & Hwang, C. P. The effects of day care on the development of cognitive abilities in eight-year-olds: A longitudinal study. Developmental Psychology, 1997, 33, 62-69.
Leyendecker, B., Lamb, M. E., Fracasso, M. P., Scholmerich, A., & Larson, C. Playful interaction and the antecedents of attachment: A longitudinal study of Central American and Euro-American mothers and infants. Merrill-Palmer Quarterly, 1997, 43, 24-47.
Horowitz, S. W., Lamb, M. E., Esplin, P. W., Boychuk, T. D., Krispin, O., & Reiter- Lavery, L. Reliability of criteria-based content analysis of child witness statements. Legal and Criminological Psychology, 1997, 2, 11-21.
Fracasso, M. P., Lamb, M. E., Scholmerich, A., & Leyendecker, B. The ecology of motherinfant interaction in Euro-American and immigrant Central American families living in the United States. International Journal of Behavioral Development, 1997, 20, 207-217.

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Lamb, M. E., Sternberg, K. J., Esplin, P. W., Hershkowitz, I., & Orbach, Y. Assessing the credibility of children’s allegations of sexual abuse: Insights from recent research. Learning and Individual Differences, 1997, 9, 175-194
Lamb, M. E., Sternberg, K. J., & Thompson, R. A. The effects of divorce and custody arrangements on children’s behavior, development, and adjustment. Expert Evidence, 1997, 5, 83-88, and Family and Conciliation Courts Review, 1997, 35, 393-404.
Reprinted in: M. E. Lamb (Ed.), Parenting and child development in “nontraditional” families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 125-135)
Lamb, M. E. L’influence du pere sur le developpement de l’enfant. [Paternal influences on child development]. Enfance, 1997(3), 337-349.
Scholmerich, A., Lamb, M. E., Leyendecker, B., & Fracasso, M. P. Mother-infant interactions and attachment security in Euro-American and Central-American immigrant families. Infant Behavior and Development, 1997, 20, 167-176.
Leyendecker, B. Lamb, M. E., Scholmerich, A., & Miranda Fricke, D. Contexts as moderators of observed interactions: A study of Costa Rican mothers and infants from differing socio-economic backgrounds. International Journal of Behavioral Development, 1997, 21, 15-34.
Lamb, M. E., & Wessels, H. Tagesbetreuung [Daycare]. In H. Keller (Ed.), Handbuch der kleinkindforschung (2 Auflage) [Handbook of child study (2nd edition)]. Berlin: Springer Verlag, 1997. (pp. 695 -717)
Leyendecker, B., Lamb, M. E., & Scholmerich, A. Studying mother-infant interaction: The effects of context and length of observation in two subcultural groups. Infant Behavior and Development, 1997, 20, 325-337.
Hershkowitz, I., Lamb, M. E., Sternberg, K. J., & Esplin, P. W. The relationships among interviewer utterance type, CBCA scores, and the richness of children’s responses. Legal and Criminological Psychology, 1997, 2, 169-176.
Hwang, C. P., & Lamb, M. E. Father involvement in Sweden: A longitudinal study of its stability and correlates. International Journal of Behavioral Development, 1997, 21, 621-632.
Sternberg, K. J., Lamb, M. E., Hershkowitz, I., Yudilevitch, L., Orbach, Y., Esplin, P. W., & Hovav, M. Effects of introductory style on children’s abilities to describe experiences of sexual abuse. Child Abuse and Neglect, 1997, 21, 1133-1146.
Wessels, H., Lamb, M. E., Hwang, C. P., & Broberg, A. G. Personality development between one and eight years of age in Swedish children with varying child care experiences. International Journal of Behavioral Development, 1997, 21, 771-794.

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Sternberg, K. J., Lamb, M. E., & Dawud-Noursi, S. Understanding domestic violence and its effects: Making sense of divergent reports and perspectives. In G. W. Holden, R. Geffner, & E. W. Jouriles (Eds.), Children exposed to family violence (pp. 121- 156). Washington, DC: American Psychological Association, 1998.
Lamb, M. E. Nonparental child care: Context, quality, correlates, and consequences. In W. Damon, I. E. Sigel, & K. A. Renninger (Eds.), Handbook of child psychology (Vol. 4) Child psychology in practice (Fifth Edition). New York: Wiley, 1998. (pp. 73- 133)
Lamb, M. E., Leyendecker, B. R., Scholmerich, A., & Fracasso, M. P. Everyday experiences of infants in Euro-American and Central-American immigrant families. In M. Lewis & C. Feiring (Eds.), Families, risk, and competence. Mahwah, NJ: Lawrence Erlbaum Associates, 1998. (pp. 113-131)
Dawud-Noursi, S., Sternberg, K. J., & Lamb, M. E. The relations among domestic violence, peer relationships, and academic performance. In M. Lewis & C. Feiring (Eds.), Families, risk, and competence. Mahwah, NJ: Lawrence Erlbaum Associates, 1998. (pp. 207- 226)
Lamb, M. E. Fatherhood then and now. In A. Booth & N. Crouter (Eds.), Men in families: When do they get involved? What difference does it make? Mahwah, NJ: Lawrence Erlbaum Associates, 1998. (pp. 47-52)
Lamb, M. E. Revisiting fathers who actively parent. Contemporary Psychology, 1998, 43, 271-272. [Book review]
Poole, D. A., & Lamb, M. E. Investigative interviews of children: A guide for helping professionals. Washington, DC: American Psychological Association, 1998.
Lamb, M. E. Assessing parent-infant interaction during the prenatal period: Some cautions. Clinics in Perinatology, 1998, 25 (2), 461-469.
Hewlett, B. S., Lamb, M. E., Shannon, D., Leyendecker, B., & Scholmerich, A. Culture and early infancy among Central African foragers and farmers. Developmental Psychology, 1998, 34, 653-661.
Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Conducting investigative interviews of alleged sexual abuse victims. Child Abuse and Neglect, 1998, 22, 813-823.
Lamb, M. E. Mea culpa but caveat emptor! Legal and Criminological Psychology, 1998, 3, 193-194.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Horowitz, D., & Hovav, M. Visiting the scene of the crime: Effects on children’s recall of alleged abuse. Legal and Criminological Psychology, 1998, 3, 195-207.
Lamb, M. E. Assessments of children’s credibility in forensic contexts. Current Directions in Psychological Science, 1998, 7, 43-46.

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Lamb, M. E. & Fracasso, M. P. Dimensions du temperament: Physiologie, comportement et perceptions maternelles. [Dimensions of temperament: Physiology, behavior, and maternal perceptions.] In G. M. Tarabulsy, R. Tessier, & A. Kappas (Eds.), Le temperament de l’enfant: Cinq etudes. [The child’s temperament: Five studies]. Quebec City, QU: Presses de l’Universite du Quebec, 1998. (pp. 77-92).
Lamb, M. E. Generative fathering: Beyond deficit perspectives. Contemporary Psychology, 1998, 43, 49-50. [Book review]
Lamb, M. E. (Ed.) Parenting and child development in “nontraditional” families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999.
Hungarian translation published by Educatio Tarsadalmi Szolgaltato Kozhasznu Tarsasag, Budapest, in November 2008.
Lamb, M. E. Parental behavior, family processes, and child development in nontraditional and traditionally understudied families. In M. E. Lamb (Ed.), Parenting and child development in “nontraditional” families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 1-14)
Lamb, M. E. Nonparental child care. In M. E. Lamb (Ed.), Parenting and child development in “nontraditional” families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 39-55)
Leyendecker, B., & Lamb, M. E. Latino families. In M. E. Lamb (Ed.), Parenting and child development in “nontraditional” families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 247-262)
Sternberg, K. J., & Lamb, M. E. Violent families. In M. E. Lamb (Ed.), Parenting and child development in “nontraditional” families. Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 305-325)
Lamb, M. E., Sternberg, K. J., Orbach, Y., Hershkowitz, I., & Esplin, P. W. Forensic interviews of children. In. A. Memon & R. A. Bull (Eds.), Handbook of the psychology of interviewing. New York and Chichester, England: Wiley, 1999. (pp. 253-277)
Bornstein, M. H., & Lamb M. E. (Eds.) Developmental psychology: An advanced textbook (Fourth Edition). Mahwah, NJ: Lawrence Erlbaum Associates, 1999.
Lamb, M. E., Hwang, C. P., Ketterlinus, R. D., & Fracasso, M. P. Parent-child relationships: Development in the context of the family. In M. H. Bornstein & M. E. Lamb (Eds.), Developmental psychology: An advanced textbook (Fourth Edition). Mahwah, NJ: Lawrence Erlbaum Associates, 1999. (pp. 411-450)
Orbach, Y., & Lamb, M. E. Assessing the accuracy of a child’s account of sexual abuse: A case study. Child Abuse and Neglect, 1999, 23, 91-98.

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Lamb, M. E. Non-custodial fathers and their impact on the children of divorce. In R. A. Thompson & P.R. Amato (Eds.), The post-divorce family: Research and policy issues. Thousand Oaks, CA: Sage, 1999. (pp. 105-125)
Lamb, M. E. Child witnesses: Recent research on children’s accounts of forensically relevant experiences. Applied Developmental Science, 1999, 3, 2-5.
Roberts, K. P., & Lamb, M. E. Children’s responses when interviewers distort details during investigative interviews. Legal and Criminological Psychology, 1999, 4, 23-31.
Sternberg, K. J., Lamb, M. E., Esplin, P. W., & Baradaran, L. Using a scripted protocol in investigative interviews: A pilot study. Applied Developmental Science, 1999, 3, 70-76.
Lamb, M. E. The role of fathers in low-income families. In Children and families in an era of rapid change: Creating a shared agenda for researchers, practitioners and policy makers. Proceedings of Head Start’s Fourth National Research Conference (July 9- 12, 1998) (pp. 205-207). Washington, DC: Department of Health and Human Services.
Lamb, M. E. Obituary: Mary D. Salter Ainsworth. American Psychological Society Observer, 1999, 12(5), 32, 34-35.
Roberts, K. P., Lamb, M. E., & Sternberg, K. J. Effects of the timing of postevent information on preschoolers’ memories of an event. Applied Cognitive Psychology, 1999, 13, 541-559.
Dawud-Noursi, S., Lamb, M. E., & Sternberg, K. J. The effects of domestic violence on children’s adjustment at school. Megamot, 1999, XL, 72-102. [Hebrew]
Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., & Horowitz, D. Interviewing at the scene of the crime: Effects on children’s recall of alleged abuse. Legal and Criminological Psychology, 2000, 5, 135-147.
Lamb, M. E. The effects of quality of care on child development. Applied Developmental Science, 2000, 4, 112-115.
Campbell, J. J., Lamb, M. E., & Hwang, C. P. Early child care experiences and children’s social competence between 1.5 and 15 years of age. Applied Developmental Science, 2000, 4, 166-175.
Hewlett, B. S., Lamb, M. E., Leyendecker, B., & Schölmerich, A. Internal working models, trust, and sharing among foragers. Current Anthropology, 2000, 41, 287-297.
Cabrera, N. J., Tamis-LeMonda, C. S., Bradley, R. H., Hofferth, S., & Lamb, M. E. Fatherhood in the twenty-first century. Child Development, 2000, 71, 127-136.
Lamb, M. E. The history of research on father involvement: An overview. Marriage and Family Review, 2000, 29, 23-42.

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Reprinted in: E. Peters & R. D. Day (Eds.), Fatherhood: Research, interventions and policies. New York: Haworth, 2000. (pp. 23-42)
Marsiglio, W., Day, R. D., & Lamb, M. E. Exploring fatherhood diversity: Implications for conceptualizing father involvement. Marriage and Family Review, 2000, 29, 269-293.
Reprinted in: E. Peters & R. D. Day (Eds.), Fatherhood: Research, interventions, and policies. New York: Haworth, 2000. (pp. 269-293)
Ahnert, L., Rickert, H., & Lamb, M. E. Shared caregiving: Comparisons between home and child care settings. Developmental Psychology, 2000, 36, 339-351.
Kelly, J. B., & Lamb, M. E. Using child development research to make appropriate custody and access decisions for young children. Family and Conciliation Courts Review, 2000, 38, 297-311.
Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., Esplin, P. W., & Horowitz, D. Assessing the value of structured protocols for forensic interviews of alleged child abuse victims. Child Abuse and Neglect, 2000, 24, 733-752.
Lamb, M. E., Orbach, Y., Sternberg, K. J., Hershkowitz, I., & Horowitz, D. Accuracy of investigators’ verbatim notes of their forensic interviews with alleged child abuse victims. Law and Human Behavior, 2000, 24, 699-707.
Cederborg, A.-C., Orbach, Y., Sternberg, K. J., & Lamb, M. E. Investigative interviews of child witnesses in Sweden. Child Abuse and Neglect, 2000, 24, 1355-1361.
Hewlett, B. S., Lamb, M. E., Leyendecker, B., & Scholmerich, A. Parental investment strategies among Aka foragers, Ngandu farmers, and Euro-American urban- industrialists. In L. Cronk, N. Chagnon, & W. Irons (Eds.), Adaptation and human behavior: An anthropological perspective. New York: Aldine, 2000. (pp. 155- 178)
Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Effects of age and delay on the amount of information provided by alleged sex abuse victims in investigative interviews. Child Development, 2000, 71, 1586-1596.
Marsiglio, W., Amato, P., Day, R. D., & Lamb, M. E. Scholarship on fatherhood in the 1990s and beyond. Journal of Marriage and the Family, 2000, 62, 1173-1191.
Orbach, Y., & Lamb, M. E. Enhancing children’s narratives in investigative interviews. Child Abuse and Neglect, 2000, 24, 1631-1648.
Lamb, M. E. Exploring and defining early social ecologies and their impact: Mothers, fathers, families and cultures. Marriage and Family Review, 2000, 30, 119-135.
Lamb, M. E. Fathering. In A. Kazdin (Ed.), Encyclopedia of psychology (Vol. 3, pp. 338- 341). Washington DC and New York: American Psychological Association and Oxford University Press, 2000.

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Lamb, M. E. Attachment. In A.E. Kazdin (Ed.), Encyclopedia of psychology (Vol. 1, pp. 284-289). Washington, DC and New York: American Psychological Association and Oxford University Press, 2000.
Ahnert, L., Lamb, M. E., & Seltenheim, K. Infant–care provider attachments in contrasting child care settings I: Group-oriented care before German reunification. Infant Behavior and Development, 2000, 23, 197-209.
Ahnert, L., & Lamb, M. E. Infant–care provider attachments in contrasting child care settings II: Individual-oriented care after German reunification. Infant Behavior and Development, 2000, 23, 211-222.
Scholmerich, A., Broberg, A. G., & Lamb, M. E. Precursors of inhibition and shyness in the first year of life. In R. Crozier (Ed.), Shyness: Development, consolidation and change. London: Routledge, 2000. (pp. 47- 63)
Fouts, H. N., Hewlett, B. S., & Lamb, M. E. Weaning and the nature of early childhood interactions among Bofi foragers in Central Africa. Human Nature, 2001, 12, 27- 46.
Orbach, Y., & Lamb, M. E. The relationship between within-interview contradictions and eliciting interviewer utterances. Child Abuse and Neglect, 2001, 25, 323-333.
Ahnert, L., & Lamb, M. E. The East German child care system: Associations with caretaking and caretaking beliefs, children’s early attachment and adjustment. American Behavioral Scientist, 2001, 44, 1843-1863.
MacKinnon-Lewis, C., Lamb, M. E., Hattie, J., & Baradaran, L. P. A longitudinal examination of the associations between mothers’ and sons’ attributions and their aggression. Development and Psychopathology, 2001, 13, 69-81.
Sternberg, K. J., Lamb, M. E., Davies, G. A., & Westcott, H. L. The Memorandum of Good Practice: Theory versus application. Child Abuse and Neglect, 2001, 25, 669-681.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., & Horowitz, D. The effects of mental context reinstatement on children’s accounts of sexual abuse. Applied Cognitive Psychology, 2001, 15, 235-248.
Lamb, M E., & Kelly, J. B. Using the empirical literature to guide the development of parenting plans for young children: A rejoinder to Solomon and Biringen. Family Courts Review, 2001, 39, 365-371.
Sternberg, K. J., Lamb, M. E., Orbach, Y., Esplin, P. W., & Mitchell, S. Use of a structured investigative protocol enhances young children’s responses to free recall prompts in the course of forensic interviews. Journal of Applied Psychology, 2001, 86, 997-1005.
Orbach, Y., Lamb, M. E., Sternberg, K. J., Williams, J. M. G., & Dawud-Noursi, S. The effect of being a victim or witness of family violence on the retrieval of autobiographical memories. Child Abuse and Neglect, 2001, 25, 1427-1437.

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Lamb, M .E. Male roles in families “at risk:” The ecology of child maltreatment. Child Maltreatment, 2001, 6, 308-311.
Lamb, M. E. Foreword. In J. R. Dudley & G. Stone’s Fathering-at-risk: Helping nonresidential fathers. New York: Springer, 2001. (pp. ix-xi)
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Horowitz, D., & Hovav, M. Can a visit to the scene of the crime improve children’s testimony in sexual abuse cases? In M. Hovav, I. Hershkowitz, & D. Horowitz (Eds.), Young victims and offenders: Questioning and interviewing in the legal process. Tel Aviv: Cherikover, 2001. (pp. 147-167)
Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., Esplin, P. W., & Horowitz, D. Protocol based interviews with Israeli children: An evaluation study. In M. Hovav, I. Hershkowitz, & D. Horowitz (Eds.), Young victims and offenders: Questioning and interviewing in the legal process. Tel Aviv: Cherikover, 2001. (pp. 111-146)
Lamb, M. E., & Fauchier, A. The effects of question type on self-contradictions by children in the course of forensic interviews. Applied Cognitive Psychology, 2001, 15, 483-491.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., & Horowitz, D. A comparison of mental and physical context reinstatement in forensic interviews with alleged victims of sexual abuse. Applied Cognitive Psychology, 2002, 16, 429-441.
Sternberg, K. J., Lamb, M. E., Esplin, P. W., Orbach, Y., & Hershkowitz, I. Using a structured interview protocol to improve the quality of investigative interviews. In M. Eisen, J. Quas, & G. Goodman (Eds.), Memory and suggestibility in the forensic interview. Mahwah, NJ: Lawrence Erlbaum Associates, 2002. (pp. 409-436)
Lamb, M. E., Orbach, Y., Sternberg, K. J., Esplin, P. W., & Hershkowitz, I. The effects of forensic interview practices on the quality of information provided by alleged victims of child abuse. In H. L. Westcott, G. M. Davies, & R. Bull (Eds.), Children’s testimony: Psychological research and forensic practice. Chichester, England: Wiley, 2002. (pp. 131-146).
Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., & Mitchell, S. Is ongoing feedback necessary to maintain the quality of investigative interviews with allegedly abused children? Applied Developmental Science, 2002, 6, 35-41.
Lamb, M. E., Teti, D. M., Bornstein, M. H., & Nash, A. Infancy. In M. Lewis (Ed.), Child and adolescent psychiatry: A comprehensive textbook (Third Edition; 293-323). New York: Lippincott Williams and Wilkins, 2002.
Lamb, M. E. Infancy: The magical months. Introductory comments in K. B. Owens’ Child and adolescent development: An integrated approach. New York: Wadsworth, 2002 (pp. 154-155).

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Lamb, M. E. Father involvement and child development: Section preface. In C.S. TamisLeMonda & N. Cabrera (Eds.), Handbook of father involvement: Multidisciplinary perspectives (pp. 91-92). Mahwah, NJ: Lawrence Erlbaum Associates, 2002.
Lamb, M. E. Infant-father attachments and their impact on child development. In C.S. Tamis-LeMonda & N. Cabrera (Eds.), Handbook of father involvement: Multidisciplinary perspective (pp. 93-117). Mahwah, NJ: Lawrence Erlbaum Associates, 2002.
Lamb, M. E. Noncustodial fathers and their children. In C.S. Tamis-LeMonda & N. Cabrera (Eds.), Handbook of father involvement: Multidisciplinary perspectives (pp. 169-184). Mahwah, NJ: Lawrence Erlbaum Associates, 2002.
Lamb, M. E., Sternberg, K. J., Orbach, Y., Hershkowitz, I., Horowitz, D., & Esplin, P. W. The effects of intensive training and ongoing supervision on the quality of investigative interviews with alleged sex abuse victims. Applied Developmental Science, 2002, 6, 114125.
Leyendecker, B. L., Harwood, R. L., Lamb, M. E., & Schölmerich, A. Mothers’ socialization goals and evaluations of desirable and undesirable everyday situations in two diverse cultural groups. International Journal of Behavioral Development, 2002, 26, 248-258.
Lamb, M. E., Chuang, S. S., Wessels, H., Broberg, A. G., & Hwang, C. P. Emergence and construct validation of the big five factors in early childhood: A longitudinal analysis of their ontogeny in Sweden. Child Development, 2002, 73, 1517-1524.
Lamb, M. E. Placing children’s interests first: Developmentally appropriate parenting plans. The Virginia Journal of Social Policy and the Law, 2002, 10, 98-119.
Reprinted in CRC Speak Out for Children, 2003, 18, 11-14, 17-19.
Schoelmerich, A., Leyendecker, B., Lamb, M.E., Hewlett, B.S., & Tessier, R. Alltagserfahrungen von 3 Monate alten Säuglingen in Nord- und Lateinamerika, Europa und Afrika [Everyday experiences of 3-months old infants in North- and Latin-America, Europe and Africa]. In K. Alt & A. Kemkes-Grottenthaler (Eds.), Kinderwelten: Anthropologie – Geschichte – Kulturvergleich [Childhood: Anthropology, history, and cross-cultural comparison] (pp. 386-399). Koeln: Boehlau Verlag, 2002.
Hewlett, B. S., & Lamb, M. E. Integrating evolution, culture and developmental psychology: Explaining caregiver-infant proximity and responsiveness in Central Africa and the USA. In H. Keller, Y. H. Poortinga, & A. Scholmerich (Eds.), Between culture and biology: Perspectives on ontogenetic development. New York: Cambridge University Press, 2002 (pp. 241-269).
Lindsey, E. W., MacKinnon-Lewis, C., Campbell, J., Frabutt, J. M., & Lamb, M. E. Marital conflict and boys’ peer relationships: The mediating role of mother-son emotional reciprocity. Journal of Family Psychology, 2002, 16, 466-477.

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Lamb, M. E., Bornstein, M. H., & Teti, D. M. Development in infancy (Fourth edition). Mahwah, NJ: Lawrence Erlbaum Associates, 2002.
Lamb, M. E., Chuang, S. S., & Cabrera, N. Promoting child adjustment by fostering positive paternal involvement. In R. M. Lerner, F. Jacobs, & D. Wertlieb (Eds.), Promoting positive child, adolescent, and family development: A handbook of applied developmental science. Thousand Oaks, CA: Sage, 2003. (pp. 211-232)
Lamb, M. E., & Garretson, M. E. The effects of interviewer gender and child gender on the informativeness of alleged child sexual abuse victims in forensic interviews. Law and Human Behavior, 2003, 27, 157-171.
Lamb, M.. E., & Ahnert, L. Institutionelle Betreuungskontexte und ihre entwicklungspsychologische Relevanz für Kleinkinder [Institutional care contexts and their developmental relevance to young children]. In H. Keller (Hrsg.), Handbuch der Kleinkindforschung [Handbook of child development] 3.Auflage [3rd edition]. Bern: Huber, 2003. (pp. 525-564)
Lamb, M. E. Child development and the law. In R. M. Lerner, M. A. Easterbrooks, & J. Mistry (Eds.), Comprehensive handbook of psychology. Volume 6: Developmental psychology. New York: Wiley, 2003. (pp. 559-577)
Kelly, J. B., & Lamb, M. E. Developmental issues in relocation cases involving young children: When, whether, and how? Journal of Family Psychology, 2003, 17, 193-205.
Ahnert, L., & Lamb, M. E. Shared care: Establishing a balance between home and child care settings. Child Development, 2003, 74, 1044-1049.
Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., Stewart, H., & Mitchell, S. Age differences in young children’s responses to open-ended invitations in the course of forensic interviews. Journal of Consulting and Clinical Psychology, 2003, 71, 926-934.
Lamb, M. E., Sternberg, K, J., Orbach, Y., Hershkowitz, I., & Horowitz, D. Differences between accounts provided by witnesses and alleged victims of child sexual abuse. Child Abuse and Neglect, 2003, 27, 1019-1031.
Lewis, C., & Lamb, M. E. Fathers influences on children’s development: The evidence from two-parent families. European Journal of the Psychology of Education, 2003, 18, 211228.
Thierry, K. L., Lamb, M. E., & Orbach, Y. Awareness of the origin of knowledge predicts child witnesses’ recall of alleged sexual and physical abuse. Applied Cognitive Psychology, 2003, 17, 953-967.
Day, R. D., & Lamb, M. E. (Eds.) Conceptualizing and measuring father involvement. Mahwah, NJ: Lawrence Erlbaum Associates, 2004.

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Day, R. D., & Lamb, M. E. Conceptualizing and measuring father involvement: Pathways, problems, and progress. In R. D. Day & M. E. Lamb (Eds.), Conceptualizing and measuring father involvement. Mahwah, NJ: Lawrence Erlbaum Associates, 2004. (pp. 1-15)
Lamb, M. E., Chuang, S. S., & Hwang, C. P. Internal reliability, temporal stability, and correlates of individual differences in paternal involvement: A 14-year longitudinal study in Sweden. In R. D. Day & M. E. Lamb (Eds.), Conceptualizing and measuring father involvement. Mahwah, NJ: Lawrence Erlbaum Associates, 2004. (pp. 129-148)
Lamb, M. E. (Ed.). The role of the father in child development (Fourth edition). Hoboken, NJ: John Wiley & Sons, 2004.
Lamb, M. E., & Tamis-Lemonda, C. S. The role of the father: An introduction. In M. E. Lamb (Ed.), The role of the father in child development (Fourth edition). Hoboken, NJ: John Wiley & Sons, 2004. (pp. 1-31)
Lamb, M. E., & Lewis, C. The development and significance of father-child relationships in two-parent families. In M. E. Lamb, (Ed.), The role of the father in child development (Fourth edition). Hoboken, NJ: John Wiley & Sons, 2004. (pp. 272-306)
Ahnert, L., & Lamb, M. E. Child care and its impact on young children (2-5). In R. E. Tremblay, R. G. Barr, & R. De V. Peters (Eds.), Encyclopedia on early childhood development (online). Montreal, Quebec: Centre of Excellence for Early Childhood Development, 2004, 1-6. available at: http://www.excellence-earlychildhood.ca/documents/Ahnert-LambANGxp.pdf.
Published simultaneously in French as: Ahnert, L., & Lamb, M. E. Services à la petite enfance et ses impacts sur les jeunes enfants (2 à 5 ans). En R. E. Tremblay, R. G. Barr, & R. De V. Peters (Eds.), Encyclopédie sur le développement des jeunes enfants [en ligne]. Montréal, Québec: Centre d’Excellence pour le developpement des jeunes, 2004, 1-6. Disponible sur le site: http://www.excellence-earlychildhood.ca/documents/Ahnert-LambFRxp.pdf.
Sternberg, K. J., Knutson, J. F., Lamb, M. E., Baradaran, L. P., Nolan C., & Flanzer, S. The Child Maltreatment Log: A PC-based program for describing research samples. Child Maltreatment, 2004, 9, 30-48.
Aldridge, J., Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., & Bowler, L. Using a human figure drawing to elicit information from alleged victims of child sexual abuse. Journal of Consulting and Clinical Psychology, 2004, 72, 304-316.
Hershkowitz, I., Horowitz, D., Lamb, M. E., Orbach, Y., & Sternberg, K. J. Interviewing youthful suspects in alleged sex crimes: A descriptive analysis. Child Abuse and Neglect, 2004, 28, 423-438.

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Roberts, K. P., Lamb, M. E., & Sternberg, K. J. The effects of rapport-building style on children’s reports of a staged event. Applied Cognitive Psychology, 2004, 18, 189-202.
Ahnert, L., Gunnar, M. R., Lamb, M. E., & Barthel, M. Transition to child care: Associations with infant-mother attachment, infant negative emotion and cortisol elevations. Child Development, 2004, 75, 639-650.
Lewis, C., & Lamb, M. E. Fathers: The research perspectives. In Supporting fathers: Contributions from the International Fatherhood Summit 2003 (Early Childhood Development: Practice and Reflections, Volume 20). The Hague, The Netherlands: Bernard van Leer Foundation, 2004. (pp. 44-76)
Pipe, M. E., Lamb, M. E., Orbach, Y., & Esplin, P. W. Recent research on children’s testimony about experienced and witnessed events. Developmental Review, 2004, 24, 440-468.
Lamb, M. E. Developmental theory and public policy: A cross-national perspective. In H. Goelman, S. K. Marshall, & S. Ross (Eds.), Multiple lenses, multiple images: Perspectives on the child across time, space and disciplines. Toronto: University of Toronto Press, 2004. (pp. 122-146)
Tamis-LeMonda, C. S., Shannon, J. D., Cabrera, N. J., & Lamb, M. E. Fathers and mothers at play with their 2- and 3-year-olds: Contributions to language and cognitive development. Child Development, 2004, 75, 1806-1820.
Fouts, H. N., Lamb, M. E., & Hewlett, B. S. Infant crying in hunter-gatherer cultures. Behavioral and Brain Sciences, 2004, 27, 462-463.
Lamb, M. E. Socio-emotional development and early schooling: experimental research. Prospects, 2004, 34, 401-409.
Lamb, M. E. Testimony, children’s competence for. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 2, 1085-1086)
Lamb, M. E. Bonding, parent-child. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 169-170)
Lamb, M. E. Forensic interviewing. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 477-479)
Lamb, M. E. Eyewitness testimony. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, 433-434)
Lamb, M. E. Day care: Measuring quality of care. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 322-324)

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Lamb, M. E. Attachment, child-parent. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 127-129)
Lamb, M. E. Parenting, divorce and. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 2, pp. 794-796)
Fouts, H. N., & Lamb, M. E. Ethical issues in cross-cultural research. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 409-412)
Lamb, M. E. Day care: Effects on child development. In C. B. Fisher & R. M. Lerner (Eds.), Encyclopedia of applied developmental science. Thousand Oaks, CA: Sage, 2005. (Vol. 1, pp. 320-322)
Lamb, M. E., & Thierry, K. L. Understanding children’s testimony regarding their alleged abuse: Contributions of field and laboratory analog research. In D. M. Teti (Ed.), Handbook of research methods in developmental science. Oxford, UK and Malden, MA: Blackwell Publishers, 2005. (pp. 489 – 508)
Day, R. D., Lewis, C., O’Brien, M., & Lamb, M. E. Emerging theories, constructs, and topics in the study of father involvement. In V. Bengston, A. Acock, K. R. Allen, P. DilworthAnderson, & D. M. Klein (Eds.), Sourcebook of family theory and research. Thousand Oaks, CA: Sage, 2005. (pp. 341-351, 360-365)
Lamb, M. E. Attachments, social networks, and developmental contexts. Human Development, 2005, 48, 108-112.
Japanese translation published in 2007.
Bornstein, M. H., & Lamb, M. E. (Eds.). Developmental science: An advanced textbook (Fifth edition). Mahwah, NJ: Lawrence Erlbaum Associates, 2005.
Korean translation published as 발달과학 [Developmental Science]. (K. Kwak and the SNU Developmental Psychology Laboratory, Trans.). Seoul, South Korea: Hakjisa, 2009.
Lamb, M. E., & Lewis, C. The role of parent-child relationships in child development. In M. H. Bornstein & M. E. Lamb (Eds.), Developmental science: An advanced textbook (Fifth edition). Mahwah, NJ: Lawrence Erlbaum Associates, 2005. (pp. 429 - 468)
Fouts, H. N., Hewlett, B. S., & Lamb, M. E. Parent-offspring conflicts among the Bofi farmers and foragers of Central Africa. Current Anthropology, 2005, 46, 29-50.
Hewlett, B. S., & Lamb, M. E. (Eds.) Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005.

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Hewlett, B. S., & Lamb, M. E. Recent research and emerging issues in the study of huntergatherer childhoods. In B. S. Hewlett & M. E. Lamb (Eds.), Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. (pp. 3 - 18)
Lamb, M. E. Introduction to Part IV. In B. S. Hewlett & M. E. Lamb (Eds.), Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. (pp. 285 – 287)
Fouts, H. N., & Lamb, M. E. Weanling emotional patterns among the Bofi foragers of Central Africa: The role of maternal availability and sensitivity. Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. (pp. 309 – 321)
Lamb, M. E., & Hewlett, B. S. Reflections on hunter-gatherer childhood. In B. S. Hewlett & M. E. Lamb (Eds.), Hunter-gatherer childhoods: Evolutionary, developmental, and cultural perspectives. New Brunswick, NJ: Aldine/Transaction, 2005. (pp. 407 – 415)
Sternberg, K. J., Lamb, M. E., Guterman, E., Abbott, C. B., & Dawud-Noursi, S. Adolescents’ perceptions of attachments to their mothers and fathers in families with histories of domestic violence: A longitudinal perspective. Child Abuse and Neglect, 2005, 29, 853869.
Oates, J., Lewis, C., & Lamb, M. E. Parenting and attachment. In S. Ding & K. Littleton (Eds.), Children's personal and social development (pp. 11-51). Oxford: Blackwell, 2005.
Roopnarine, J. L., Fouts, H. N., Lamb, M. E., & Lewis-Elligan T. Y. Mothers' and fathers' behaviors toward their 3-4 month-old infants in low-, middle-, and upper-socioeconomic African American families. Developmental Psychology, 2005, 41, 7213-732.
Lamb, M. E. Développement socio-émotionnel et scolarisation précoce: Recherches expérimentale. In J.- J. Ducret (Ed.), Constructivisme et education (II): Scolariser la petite enfance? (Vol. 1. pp 257-267). Genève, Suisse: Service de la Recherche en Education (SRED), 2005.
Hershkowitz, I., Horowitz, D., & Lamb, M. E. Trends in children’s disclosure of abuse in Israel: A national study. Child Abuse and Neglect, 2005, 29, 1203-1214.
Carter, S. C., Ahnert, L., Grossmann, K. E., Hrdy, S. B., Lamb, M. E., Porges, S. W., & Sachser, N. (Eds.), Attachment and Bonding: A New Synthesis (Dahlem Workshop Report 92). Boston, MA: MIT Press, 2005.
Carter, S. C., Ahnert, L., Grossmann, K. E., Hrdy, S. B., Lamb, M. E., Porges, S. W., & Sachser, N. Introduction. In S. C. Carter, L. Ahnert, K. E. Grossmann, S. B. Hrdy, M. E. Lamb, S. W. Porges, & N. Sachser (Eds.), Attachment and Bonding: A New Synthesis (Dahlem Workshop Report 92). Boston, MA: MIT Press, 2005. (pp. 1-8)

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Kraemer, G. W. (on behalf of M. E. Lamb, G. A. Liotti, K. Lyons-Ruth, G. Meinlschmidt, A. Scholmerich, M. Steele, & C. Travarthen). Group report: Adaptive and maladaptive outcomes. In S. C.Carter, L. Ahnert, K. E. Grossmann, S. B. Hrdy, M. E. Lamb, S. W. Porges, & N. Sachser (Eds.), Attachment and Bonding: A New Synthesis (Dahlem Workshop Report 92). Boston, MA: MIT Press, 2005. (pp. 429-474).
Thierry, K., Lamb, M. E., Orbach, Y., & Pipe, M. E. Developmental differences in the function and use of anatomical dolls during interviews with alleged sexual abuse victims. Journal of Consulting and Clinical Psychology, 2005, 73, 1125-1134.
Trinder, L., & Lamb, M. E. Measuring up? The relationship between correlates of children’s adjustment and both family law and policy in England. Louisiana Law Review, 2005, 65, 1509-1537.
Lamb, M. E., & Brown, D. A. Conversational apprentices: Helping children become competent informants about their own experiences. British Journal of Developmental Psychology, 2006, 24, 215-234.
Sternberg, K. J., Baradaran, L. P., Abbott, C. B., Lamb, M. E., & Guterman, E. Type of violence, age, and gender differences in the effects of family violence on children’s behavior problems: A mega-analysis. Developmental Review, 2006, 26, 89-112.
Sternberg, K. J., Lamb, M. E., Guterman, E., & Abbott, C. B. Effects of early and later family violence on children’s behavior problems and depression: A longitudinal, multiinformant perspective. Child Abuse and Neglect, 2006, 30, 283-306.
Lamb, M. E., & Ahnert, L. Nonparental child care: Context, concepts, correlates, and consequences. In W. Damon, R. M. Lerner, K. A. Renninger & I. E. Sigel (Eds.), Handbook of child psychology (Vol. 4) Child psychology in practice (Sixth Edition). New York: Wiley, 2006. (pp. 950-1016)
Bassen, C. R., & Lamb, M. E. Gender differences in adolescents’ self-concepts of assertion and affiliation. European Journal of Developmental Psychology, 2006, 3, 71-94.
Ahnert. L., Pinquart, M., & Lamb, M. E. Security of children’s relationships with non-parental care providers: A meta-analysis. Child Development, 2006, 74, 664-679.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Pipe, M. E., & Horowitz, D. Dynamics of forensic interviews with suspected abuse victims who do not disclose abuse. Child Abuse and Neglect, 2006, 30, 753-769.
Lewis, C., & Lamb, M. E. Father-child relationships and children’s development: A key to durable solutions? In M. Thorpe & R. Budden (Eds.), Durable solutions: Collected papers from the 2005 Interdisciplinary Dartington Hall Conference. Bristol, UK: Jordans, 2006. (pp. 87-101)

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Lamb, M. E., Orbach, Y., Warren, A., Esplin, P. W., & Hershkowitz, I. Enhancing performance: Factors affecting the informativeness of young witnesses. In M. P. Toglia, J. D. Read, D. F. Ross, & R. C. L. Lindsay (Eds.), Handbook of eyewitness psychology. Vol 1: Memory for events. Mahwah, NJ: Lawrence Erlbaum Associates, 2006. (pp. 423-446)
Pipe, M. E., Thierry, K. S., & Lamb, M. E. The development of event memory: Implications for child witness testimony. In M. P. Toglia, J. D. Read, D. F. Ross, & R. C. L. Lindsay (Eds.), Handbook of eyewitness psychology. Vol 1: Memory for events (pp. 447-472). Mahwah, NJ: Lawrence Erlbaum Associates, 2006.
Cederborg, A. C., & Lamb, M. E. How does the legal system respond when children with learning difficulties are victimized? Child Abuse and Neglect, 2006, 30, 537-547.
Brown, D. A., & Lamb, M. E. Helping abused children talk about their experiences in forensic interviews. Minerva Medicolegale, 2006, 126, 155-68.
Lewis, C., & Lamb, M. E. Fatherhood: Connecting the strands of diversity across time and space. York: Joseph Rowntree Foundation, 2006.
Chuang, S. S., Lamb, M. E., & Hwang, C. P. Personality development from childhood to adolescence: A longitudinal study of ego-control and ego-resilience in Sweden. International Journal of Behavioral Development, 2006, 30, 338-343.
Lamb, M. E., & Larsson, A. S. Developmentally appropriate interview techniques. In B. Brooks-Gordon & M. Freeman (Eds.), Law and psychology (pp. 143-153). Oxford: Oxford University Press, 2006.
Dubowitz, H., Lane, W., Greif, G. L., Jensen, T. K., & Lamb, M. E. Low income African American fathers’ involvement in children’s lives: Implications for practitioners. Journal of Family Social Work, 2006, 10, 25-41.
Pipe, M. E., Lamb, M. E., Orbach, Y., & Cederborg, A.-C. (Eds.) Child sexual abuse: Disclosure, delay, and denial. Mahwah, NJ: Lawrence Erlbaum Associates, 2007.
Pipe, M. E., Lamb, M. E., Orbach, Y., & Cederborg, A.-C. Seeking resolution in the disclosure wars: An introduction. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A. C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 3-10). Mahwah, NJ: Lawrence Erlbaum Associates, 2007.
Pipe, M. E., Lamb, M. E., Orbach, Y., Stewart, H. L., Sternberg, K. J., & Esplin, P. W. Factors associated with nondisclosure of suspected abuse during forensic interviews. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 77 – 96). Mahwah, NJ: Lawrence Erlbaum Associates, 2007.

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Hershkowitz, I., Horowitz, D., & Lamb, M. E. Individual and family variables associated with disclosure and non-disclosure of child abuse in Israel. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 65 – 75). Mahwah, NJ: Lawrence Erlbaum Associates, 2007.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Pipe, M. E., & Horowitz, D. Suspected victims of abuse who do not make allegations: An analysis of their interactions with forensic interviewers. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 97 – 113). Mahwah, NJ: Lawrence Erlbaum Associates, 2007.
Orbach, Y., Shiloach, H., & Lamb, M. E. Reluctant disclosers of child sexual abuse. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 115 - 134). Mahwah, NJ: Lawrence Erlbaum Associates, 2007.
Cederborg, A.-C., Lamb, M. E., & Laurell, O. Delay of disclosure, minimization, and denial when the evidence is unambiguous: A multi-victim case. In M. E. Pipe, M. E. Lamb, Y. Orbach, & A.-C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 159 – 173). Mahwah, NJ: Lawrence Erlbaum Associates, 2007.
Hershkowitz, I., Fisher, S., Lamb, M. E., & Horowitz, D. Improving credibility assessment in child sexual abuse allegations: The role of the NICHD Investigative Interview Protocol. Child Abuse and Neglect, 2007, 31, 99-110.
Hershkowitz, I., Lanes, O., & Lamb, M. E. Exploring the disclosure of child sexual abuse with alleged victims and their parents. Child Abuse and Neglect, 31, 111-124.
Brown, D. A., Pipe, M. E., Lewis, C., Lamb, M. E., & Orbach, Y. Supportive or suggestive: Do human figure drawings help 5- to 7-year-old children to report touch? Journal of Consulting and Clinical Psychology, 2007, 75, 33-42.
Orbach, Y., & Lamb, M. E. Young children’s references to temporal attributes of allegedly experienced events in the course of forensic interviews. Child Development, 2007, 78, 1100-1120.
Lamb, M. E. The ‘Approximation Rule’: Another proposed reform that misses the target. Child Development Perspectives, 2007, 1, 135-136.
Lamb, M. E., Orbach, Y., Hershkowitz, I., Esplin, P. W., & Horowitz, D. Structured forensic interview protocols improve the quality and informativeness of investigative interviews with children: A review of research using the NICHD Investigative Interview Protocol. Child Abuse and Neglect, 2007, 31, 1201-1231.
Lamb, M. E., Orbach, Y., Hershkowitz, I., Horowitz, D., & Abbott, C. B. Does the type of prompt affect the accuracy of information provided by alleged victims of abuse in forensic interviews? Applied Cognitive Psychology, 2007, 21, 1117-1130.

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Fouts, H., Roopnarine, J. L., & Lamb, M. E. Social experiences and daily routines of African American infants in different socioeconomic contexts. Journal of Family Psychology, 2007, 21, 655-664.
Lamb, M. E. Improving the quality of parent-child contact in separating families. In M. Maclean (Ed.), Parenting after partnering: Containing conflict after separation. Oxford and Portland OR: Hart Publishing, 2007. (pp. 11-28)
Hershkowitz, I., Lamb, M. E., & Horowitz, D. Victimization of children with disabilities. American Journal of Orthopsychiatry, 2007, 77, 629-635.
Cederborg, A. C., La Rooy, D., & Lamb, M. E. Repeated interviews with children who have intellectual disabilities. Journal of Applied Research in Intellectual Disabilities, 2008, 21, 103-113.
Lamb, M. E. A view from abroad. Economic and Political Weekly (India), 2008 (Feb 2), 43(5), 40-41.
Reprinted in M. V. Nadkarni & R. S. Deshpande (Eds.), Social science research in India: Institutions and structure (pp. 221-225). New Delhi: Academic Foundation.
Keselman, O., Cederborg, A. C., Lamb, M. E., & Dahlstrom, O. Mediated communication with minors in asylum-seeking hearings. Journal of Refugee Studies, 2008, 21, 103-116.
Lamb, M. E., Hershkowitz, I., Orbach, Y., & Esplin, P. W. Tell me what happened: Structured investigative interviews of child victims and witnesses. Chichester, UK and Hoboken, NJ: Wiley, 2008.
Lamb, M. E. The many faces of fatherhood: Some thoughts about fatherhood and immigration. In S. S. Chuang & R. P. Moreno (Eds.), On new shores: Understanding immigrant fathers in North America (pp. 7 – 24). Lanham, MD: Lexington Books, 2008.
Brown, D., Lamb, M. E., Pipe, M.-E., & Orbach, Y. Pursuing “the truth, the whole truth, and nothing but the truth”: Forensic interviews with child victims and witnesses of abuse. In M. L. Howe, G. S. Goodman, & D. Cicchetti (Eds.), Stress, trauma, and children’s memory development: Neurobiological, cognitive, clinical, and legal perspectives ( pp. 267-301). New York: Oxford University Press, 2008.
Cederborg, A. C., & Lamb, M. E. Interviewing alleged victims with intellectual disabilities. Journal of Intellectual Disability Research, 2008, 52, 49-58.
Cederborg, A. C., & Lamb, M. E. The need for systematic and intensive training of forensic interviewers. In T. I. Richardson & M. V. Williams (Eds.), Child abuse and violence. New York: Nova Science Publishers, 2008. (pp. 1 – 17)

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La Rooy, D., & Lamb, M. E. What happens when young witnesses are interviewed more than once? Forensic Update, 2008, Issue 95 (Autumn), 25-28.
Shannon, J. D., Cabrera, N. J., Tamis-LeMonda, C., & Lamb, M. E. Who stays and who leaves? Father accessibility across children’s first 5 years. Parenting, 2009, 9, 78-100.
Cyr, M., & Lamb, M. E. Assessing the effectiveness of the NICHD investigative interview Protocol when interviewing French-speaking alleged victims of child sexual abuse in Quebec. Child Abuse and Neglect, 2009, 33, 257-268.
Brown, D. A., & Lamb, M. E. A two-way street: Supporting interviewers in adhering to best practice recommendations and enhancing children’s capabilities in forensic interviews. In K. Kuehnle & M. Connell (Eds.), The evaluation of child sexual abuse allegations: A comprehensive guide to assessment and testimony. Hoboken, NJ: Wiley, 2009. (pp. 299-325)
La Rooy, D., Lamb, M. E., and Pipe, M.-E. Repeated interviewing: A critical evaluation of the risks and potential benefits. In K. Kuehnle & M. Connell (Eds.), The evaluation of child sexual abuse allegations: A comprehensive guide to assessment and testimony. Hoboken, NJ: Wiley, 2009. (pp. 327-361)
Lamb, M. E. and colleagues. Appendix: The NICHD Investigative Interview Protocol. In K. Kuehnle & M. Connell (Eds.), The evaluation of child sexual abuse allegations: A comprehensive guide to assessment and testimony. Hoboken, NJ: Wiley, 2009. (pp. 531-545)
Lamb, M. E. & Bougher, L. D. How does migration affect mothers’ and fathers’ roles within their families? Reflections on some recent research. Sex Roles, 2009, 60, 611-614.
Lamb, M. E., Orbach, Y., Sternberg, K. J., Aldridge, J., Pearson, S., Stewart, H. L., Esplin, P. W., & Bowler, L. Use of a structured investigative protocol enhances the quality of investigative interviews with alleged victims of child sexual abuse in Britain. Applied Cognitive Psychology, 2009, 23, 449-467.
Lyon, T., Lamb, M. E., & Myers, J. The value of the NICHD Protocol has been well established and recognized. Letter to the Editor. Child Abuse and Neglect, 2009, 33, 71-74.
Cederborg, A. C., Danielson, H., La Rooy, D., & Lamb, M. E. Repetition of contaminating question types when children and youths with learning disabilities are interviewed about abuse experiences. Journal of Intellectual Disability Research, 2009, 53, 440-449.
Larsson, A., & Lamb, M. E. Making the most of information-gathering interviews with children. Infant and Child Development, 2009, 18, 1-16.
Fouts, H. N., & Lamb, M. E. Cultural and developmental variation in toddlers’ interactions with other children in two small-scale societies in Central Africa. European Journal of Developmental Science, 2009, 3, 389-407.

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Lamb, M. E., & Kelly, J. B. Improving the quality of parent-child contact in separating families with infants and young children: Empirical research foundations. In R. M. GalatzerLevy, L. Kraus, & J. Galatzer-Levy (Eds.), The scientific basis of child custody decisions (Second edition). Hoboken, NJ: Wiley, 2009. (pp. 187-214)
Teoh, Y. S., Yang, P. J., Lamb, M. E., Larsson, A. Do human figure diagrams help alleged victims of sexual abuse provide elaborate and clear accounts of physical contact with alleged perpetrators? Applied Cognitive Psychology, 2010, 24, 287-300.
Lamb, M. E. (Ed.). The role of the father in child development (Fifth edition). Hoboken NJ: Wiley, 2010.
Lamb, M. E. How do fathers affect children’s development?: Let me count the ways. In M. E. Lamb (Ed.), The role of the father in child development (Fifth edition; pp. 1-26). Hoboken NJ: Wiley, 2010.
Lamb, M. E., & Lewis, C. The development and significance of father-child relationships in twoparent families. In M. E. Lamb (Ed.), The role of the father in child development (Fifth edition; pp. 94-153). Hoboken NJ: Wiley, 2010.
Malloy, L. C., & Lamb, M. E. Biases in judging victims and suspects whose statements are inconsistent. Law and Human Behavior, 2010, 34, 46-48.
Lamb, M. E. The changing landscape for research support in British universities. APS Observer, 2010, 23(5), 19-20.
Lamb, M. E., & Malloy, L. C. The NICHD Investigative Interview Protocol: Looking back and moving forward. The Advocate, 2010, 33(1), 9-13.
Thierry, K. L., Lamb, M. E., Pipe, M.E., & Spence, M. J. The flexibility of source-monitoring training: Reducing young children’s source confusions. Applied Cognitive Psychology, 2010, 24, 626-644.
Lamb, M. E., & Freund, A. M. (Eds.). Handbook of life-span development, Volume 2: Social and emotional development (Editor-in-Chief: Richard M. Lerner). Hoboken, NJ: Wiley, 2010.
Freund, A. M., & Lamb, M. E. Introduction. In M. E. Lamb & A. M. Freund (Eds.), (2010). Handbook of life-span development, Volume 2: Social and emotional development (Editor-in-Chief: Richard M. Lerner). Hoboken, NJ: Wiley, 2010. (pp. 1-8)
Ahnert, L. & Lamb, M. E. Öffentliche Tagesbetreuung auf dem Prüfstand entwicklungs– psychologischer Forschung [Public child care on trial by research in developmental psychology]. In H. Keller (Ed.), Handbuch für Kleinkindforschung (4 Auflage) [Handbook of child study; 4th. Edition] (pp. 330-364). Bern: Huber, 2010.
Teoh, Y-S. & Lamb, M. E. Preparing children for investigative interviews: Rapport-building, instruction, and evaluation. Applied Developmental Science, 2010, 14, 154-163.

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Keselman, O., Cederborg, A. - C., Lamb, M. E., & Dahlström, O. Asylum seeking minors in interpreter-mediated interviews: What do they say and what happens to their responses? Child and Family Social Work, 2010, 15, 325-334.
Roberts, K. P., & Lamb, M. E. Reality-monitoring characteristics in confirmed and doubtful allegations of child sexual abuse. Applied Cognitive Psychology, 2010, 24, 1049-1079.
LaRooy, D., Katz, C., Malloy, L. C., & Lamb, M. E. Do we need to rethink guidance on repeated interviews? Psychology, Public Policy, and the Law, 2010, 16, 373-392.
Lamb, M. E. The evolution of childhood [Invited Presidential Column]. APS Observer, 2010, 23(11), 3, 16-17.
Bornstein, M. H., & Lamb, M. E. (Eds.) Developmental science: An advanced textbook (6th edition). New York: Taylor and Francis, 2011.
Reprinted as M. H. Bornstein & M. E. Lamb (Eds.), Cognitive development: An advanced textbook. New York: Taylor & Francis, 2011, and M. E. Lamb & M. H. Bornstein (Eds.), Social and personality development: An advanced textbook. New York: Taylor & Francis, 2011.
Lamb, M. E., & Lewis, C. The role of parent-child relationships in child development. In M. H. Bornstein & M. E. Lamb (Eds.), Developmental science: An advanced textbook (6th edition). New York: Taylor and Francis, 2011. (pp. 469-517)
Malloy, L. C., Lamb, M. E., & Katz, C. Children and the law: Examples of applied psychology in action. In M. H. Bornstein & M. E. Lamb (Eds.), Developmental science: An advanced textbook (6th edition). New York: Taylor and Francis, 2011. (pp. 645-686)
Lamb, M. E., & Bornstein, M. H. Social and personality development: An introduction and guide. In M. E. Lamb & M. H. Bornstein (Eds.), Social and personality development: An advanced textbook. New York: Taylor & Francis, 2011.
Bornstein, M. H., & Lamb, M. E. Neural, physical, motor, perceptual, cognitive, and language development: An introduction and guide. In M. H. Bornstein & M. E. Lamb (Eds.), Cognitive development: An advanced textbook. New York: Taylor & Francis, 2011.
Lamb, M. E. Unraveling the significance of human childhood. [Book review] American Scientist, 2011, 99, 68.
Ahnert, L., & Lamb, M. E. Child care and its impact on young children (2–5). In J. Bennett (topic Ed.); R. E. Tremblay, M. Boivin, R. De V. Peters, & R. G. Barr (Eds.), Encyclopedia on early childhood development [online]. Montreal, Quebec: Centre of Excellence for Early Childhood Development; 2011:1-6. Available at: http://www.childencyclopedia.com/documents/Ahnert-LambANGxp2.pdf. Accessed [insert date].

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Lamb, M. E., La Rooy, D. J., Malloy, L. C., & Katz, C. (Eds.) Children’s testimony: A handbook of psychological research and forensic practice (Second edition). Chichester: Wiley, 2011.
Malloy, L. C., La Rooy, D. J., Lamb, M. E., & Katz, C. Developmentally sensitive interviewing for legal purposes. In M. E. Lamb, D. J. La Rooy, L. C. Malloy, & C. Katz (Eds.), Children’s testimony: A handbook of psychological research and forensic practice (Second edition, pp. 1-13). Chichester: Wiley, 2011.
Lamb, M. E., Malloy, L. C., & La Rooy, D. J. Setting realistic expectations: Developmental characteristics, capacities, and limitations. In M. E. Lamb, D. J. La Rooy, L. C. Malloy, & C. Katz (Eds.), Children’s testimony: A handbook of psychological research and forensic practice (Second edition; pp. 15-48). Chichester: Wiley, 2011.
La Rooy, D. J., Malloy, L. C., & Lamb, M. E. The development of memory in childhood. In M. E. Lamb, D. J. La Rooy, L. C. Malloy, & C. Katz (Eds.), Children’s testimony: A handbook of psychological research and forensic practice (Second edition; pp. 49-68). Chichester: Wiley, 2011.
Malloy, L. C., La Rooy, D. J., & Lamb, M. E. Facilitating effective participation by children in the legal system. In M. E. Lamb, D. J. La Rooy, L. C. Malloy, & C. Katz (Eds.), Children’s testimony: A handbook of psychological research and forensic practice (Second edition; pp. 423-429). Chichester: Wiley, 2011.
Malloy, L. C., Brubacher, S., & Lamb, M. E. Expected consequences of disclosure revealed in investigative interviews with suspected victims of child sexual abuse. Applied Developmental Science, 2011, 15, 8-19.
Peixoto, C. E., Ribeiro, C., & Lamb, M. E. Forensic interview protocol in sexual abuse: Why and what for? In T. Magalhaes (Ed.), To improve the management of child abuse and neglect (pp. 133-159). Porto: Portuguese Society for the Study of Child Abuse and Neglect (SPECAN), 2011.
LaRooy, D. A., & Lamb, M. E. What happens when interviewers ask repeated questions in forensic interviews with children alleging abuse? Journal of Police and Criminal Psychology, 2011, 26, 20-25.
LaRooy, D. A., Lamb, M. E., & Memon, A. Forensic interviews with children in Scotland: A survey of interview practices among police. Journal of Police and Criminal Psychology, 2011, 26, 26-34.
Teoh, Y. S., & Lamb, M. E. Interview demeanor in forensic interviews of children. Psychology, Crime & Law, 2011, 10, 1-15.
Zaff, J. F., Kawashima-Ginsberg K., Lin E. S., Lamb M. E., Balsano, A., & Lerner, R. M. Developmental trajectories of civic engagement across adolescence: Disaggregation of an integrated construct. Journal of Adolescence, 2011, 34, 1207-1220.

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Fouts, H. N., Roopnarine, J. L., Lamb, M. E., & Evans, M. Infant social interactions with multiple caregivers: The Importance of ethnicity and socio-economic status. Journal of Cross-Cultural Psychology, 2012, 43, 331-351.
Orbach, Y., Lamb, M. E., La Rooy, D. J., & Pipe, M.-E. A case study of witness consistency and memory recovery across multiple investigative interviews. Applied Cognitive Psychology, 2012, 26, 118-129.
Lamb, M. E. Critical analysis of research on parenting plans and children’s well-being. In K. Kuehnle & L. Drodz (Eds.), Parenting plan evaluations: Applied research for the family court. New York: Oxford University Press, 2012. (pp. 214-243)
Katz, C., Hershkowitz, I., Malloy, L. C., Lamb, M. E., Atabaki, A., & Spindler, S. Non-verbal behaviour of children who disclose or do not disclose child abuse in investigative interviews. Child Abuse & Neglect, 2012, 36, 12-20.
Brown, D., Pipe, M.-E., Lewis, C., Lamb, M. E. & Orbach, Y. How do body diagrams affect the accuracy and consistency of children's reports of bodily touch across repeated interviews? Applied Cognitive Psychology, 2012, 26, 174-181.
Hershkowitz, I., Lamb, M. E., Orbach, Y., Katz, C., & Horowitz, D. The development of communicative and narrative skills among preschoolers: Lessons from forensic interviews about child abuse. Child Development, 2012, 83, 611-622.
Lamb, M. E. British universities face funding woes. APS Observer, 2012, 25(4), 31-32.
Fouts, H. N., Hewlett, B. S., & Lamb, M. E. A bio-cultural approach to breastfeeding interactions in Central Africa. American Anthropologist, 2012, 114, 123-136.
Lamb, M. E. Mothers, fathers, families, and circumstances: Factors affecting children’s adjustment. Applied Developmental Science, 2012, 16, 98-111.
Lamb, M. E., & Malloy, L. C. Child development and the law. In R. M. Lerner, M. A. Easterbrooks, & J. Mistry (Eds.), Comprehensive handbook of psychology (2nd edition). Volume 6: Developmental psychology (pp. 571-593). Hoboken, NJ: Wiley, 2012.
Spencer, J. R., & Lamb, M. E. (Eds.) Children and cross-examination: Time to change the rules? Oxford: Hart Publishing, 2012.
Lamb, M. E. A wasted opportunity to engage with the literature on the implications of attachment research for family court professionals. Family Court Review, 2012, 50, 481485.
Braver, S. L., & Lamb, M. E. Marital dissolution. In G. W. Peterson & K. R. Bush (Eds.), Handbook of marriage and the family (3nd Ed., pp. 487-516). New York: Springer, 2013.

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Lamb, M. E., & Lewis, C. Father-child relationships. In C. S. Tamis-LeMonda & N. Cabrera (Eds.), Handbook of father involvement (2nd edition; pp. 119-134). New York: Psychology Press, 2012.
Lamb, M. E. Early experience, neurobiology, plasticity, vulnerability, and resilience. In D. Narvaez, J. Panksepp, & A. Schore (Eds.), Human nature, early experience and the environment of evolutionary adaptedness (pp. 68-73). New York: Oxford University Press, in press.
Shwalb, D. W., Shwalb, B. J., & Lamb, M. E. (Eds.) Fathers in cultural context. New York: Routledge/Taylor & Francis, 2013.
Shwalb, D. W., Shwalb, B. J., & Lamb, M. E. Introduction. In D. W. Shwalb, B. J. Shwalb, & M. E. Lamb (Eds.), Fathers in cultural context (pp. 3-14). New York: Routledge/Taylor & Francis, 2013.
Li, X., & Lamb, M. E. Fathers in Chinese culture. In D. W. Shwalb, B. J. Shwalb, & M. E. Lamb (Eds.), Fathers in cultural context (pp. 10-41). New York: Routledge/Taylor & Francis, 2013.
Shwalb, D. W., Shwalb, B. J., & Lamb, M. E. Final thoughts, comparisons, and conclusions. In D. W. Shwalb, B. J. Shwalb, & M. E. Lamb (Eds.), Fathers in cultural context (pp. 385-399). New York: Routledge/Taylor & Francis, 2013.
Lamb, M. E. Non-parental care and emotional development. In S. Pauen & M. H. Bornstein (Eds.), Early childhood development and later achievement. New York and Cambridge: Cambridge University Press, in press.
La Rooy, D. J., Brown, D. & Lamb, M. E. Suggestibility and witness interviewing. In A. Ridley, F. Gabbert, & D. J. La Rooy (Eds.), Investigative suggestibility: Theory, research and applications. Oxford UK: Wiley-Blackwell, in press.
Lamb, M. E. Inaugural editorial. Psychology, Public Policy, and Law, in press.
Brown, D. A., Lewis, C. N., Lamb, M. E., & Stephens, E. The influences of delay and severity of intellectual disability on event memory in children. Journal of Consulting and Clinical Psychology, in press.
Cederborg, A.-C., Alm, C., Da Silva Nises, D. L., & Lamb, M. E. Investigative interviewing of alleged child abuse victims: An evaluation of a new training program for investigative interviewers. Police Practice and Research, in press.
Pipe, M. E., Orbach, Y., Lamb, M. E., Abbott, C. B., Stewart, H. L. Do case outcomes change when investigative interviewing practices change? Psychology, Public Policy, & Law, in press.

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La Rooy, D., Nicol, A., Halley, J., & Lamb, M. E. Joint investigative interviews with children in Scotland. The Scots Law Times, in press.
Papers Presented to Scientific and Professional Conventions or Conferences
Tracy, R. L., Lamb, M. E., & Ainsworth, M. E. Proximity seeking in the first year as related to attachment. Paper presented to the Southeastern Division of the Society for Research in Child Development, Chapel Hill, NC, March 1974.
Lamb, M. E. Infants, fathers, and mothers: Interaction at eight-months-of-age in the home and in the laboratory. Paper presented to the Eastern Psychological Association, New York, April 1975.
Lamb, M. E. Infant attachment to mothers and fathers. Paper presented to the Society for Research in Child Development, Denver, CO, April 1975.
Lamb, M. E. The one-year-old’s interaction with its parents. Paper presented to the Eastern Psychological Association, New York, April 1976.
Lamb, M. E. The effects of stress on the parental preferences of one-year-olds. Paper presented to the XXIst International Congress of Psychology, Paris, July 1976.
Lamb, M. E. The effects of ecological variables on parent-infant interaction. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1977.
Lamb, M. E. Development and function of parent-infant relationships in the first two years of life. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1977.
Lamb, M. E. Effective parenting in contemporary America: Some cautions and some prescriptions. Paper presented to a Conference on Effective Parenting, New Orleans, LA, April 1977.
Lamb, M. E. The influence of the infant on marital quality and family interaction during the prenatal, paranatal, and infancy period. Paper presented to the Conference on Contributions of the Child to Marital Quality and Family Interaction Across the Lifespan, University Park, PA, April 1977.
Lamb, M. E., Suomi, S. J., & Stephenson, G. R. (Co-organizers) Methodological problems in the study of social interaction. Study group that met in Madison, WI, July 1977, under the auspices of the Society for Research in Child Development, and the financial support of the Foundation for Child Development.
Lamb, M. E. Social interaction in triads: Mother, father, and infant. Paper presented to the study group on Methodological Problems in the Study of Social Interaction, Madison, WI, July 1977.

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Lamb, M. E. The relationships between mothers, fathers, infants, and siblings in the first two years of life. Paper presented to the International Society for the Study of Behavioral Development, Pavia (Italy), September 1977.
Frodi, A. M. Lamb, M. E., Leavitt, L. A., & Donovan, W. L. Fathers’ and mothers’ responses to infant smiles and cries. “Poster” presentation to the Society for Psychophysiological Research, Philadelphia, PA, October 1977.
Lamb, M. E. Moderator of workshop on “The problems of single parents’ and working mothers’ families” at the General Mills American Family Forum on “Parenting -The Crucial years”, Washington, DC, October 1977.
Lamb, M. E. Family boundary and stress issues in child/human development, psychiatry, sociology, and family studies: What are the shared issues and problems? Invited address to a Conference on family boundaries: Research and therapy, Madison, WI, October 1977.
Lamb, M. E., Chase-Lansdale, P. L., & Owen, M. T. The changing American family and its implications for infant social development. Paper presented to the ETS Conference on The Social Network of the Developing Infant, Princeton, NJ, December 1977.
Lamb, M. E. The father’s role in the attainment and maintenance of infant mental health. Invited address to the Michigan Infant Mental Health Association, Ann Arbor, MI, March 1978.
Lamb, M. E. Parent-infant bonding. Invited address to the Michigan State Medical Society Conference on Maternal and Perinatal Health, Dearborn, MI, March 1978.
Stevenson, M. B., & Lamb, M. E. Effects of the caretaking environment on infant cognitive competence. Paper presented to the International Conference on Infant Studies, Providence, RI, March 1978.
Lamb, M. E. Observational analyses of sibling relationships in infancy. Paper presented to the International Conference on Infant Studies, Providence, RI, March 1978.
Frodi, A. M., Lamb, M. E., Leavitt, L. A., & Donovan, W. L. Fathers’ and mothers’ responses to the signals and characteristics of young infants. Paper presented to the International Conference on Infant Studies, Providence, RI, March 1978.
Maurer, G. F., & Lamb, M. E. Personality characteristics of early-treated children with PKU and the personality characteristics of their parents. Paper presented to the fourteenth General Medical Conference, PKU Collaborative Study, Stateline, NV, March 1978.
Frodi, A. M., & Lamb, M. E. Baby responsiveness in eight-and fourteen-year-olds as assessed by observational and psychophysiological measures. Paper presented to the Iowa Academy of Sciences, Cedar Falls, Iowa, April 1978.
Lamb, M. E. Invited consultant at an interdisciplinary workshop on the observational study of social interaction, Munich (Germany), July 1978.

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Lamb, M. E., Frodi, A. M., Chase-Lansdale, P. L., & Owen, M. T. The father’s role in nontraditional family contexts: Direct and indirect effects. Paper presented to the American Psychological Association, Toronto, September 1978.
Frodi, A. M., & Lamb, M. E. Psychophysiological responses to infant signals in abusive mothers and mothers of premature infants. Paper presented to the Society for Psychophysiological Research, Madison, WI, September 1978.
Lamb, M. E. The effects of nontraditional family styles on infant social development: Implications for social policy. Invited address to the National Council of Family Relations Convention, Philadelphia, PA, October 1978.
Lamb, M. E., & Bronson, S. K. Paternal influences on development in traditional and nontraditional families. Invited address to a conference on Fatherhood and the Male Single Parent, Nebraska Psychiatric Institute, Omaha, NE, November/December 1978.
Lamb, M. E. Infant social development: A personal perspective. Guest lecture series, University of Goteborg (Sweden), February 1979.
Lamb, M. E. The father-child relationship: Changing conceptions of its nature and potential importance. Invited address to the Merrill-Palmer Institute, Detroit, MI, February 1979.
Frodi, A. M., & Lamb, M. E. Sex differences in behavioral and psychopysiological responsiveness to infants: A developmental study. Paper presented (on invitation) to the Association for Women in Psychology, Dallas, TX, March 1979.
Lamb, M. E. Participant in “Peer Interaction Conversation Hour” at the Biennial Meeting of the Society for Research in Child Development, San Francisco, March 1979.
Frodi, A. M., Wille, D., & Lamb, M. E. Parents’ responses to normal and premature infants. Paper presented to the Society for Research in Child Development, San Francisco, March 1979.
Frodi, A. M., Schima, J., Ohman, R., & Lamb, M. E. Child abusers’ responses to infant smiles and cries. Paper presented to the Society for Research in Child Development, San Francisco, March 1979.
Olson, G. M., & Lamb, M. E. Premature infants: Cognitive and social development in the first year of life. Workshop presentation to the Annual Convention of the Michigan Association for Infant Mental Health, Ann Arbor, MI, April 1979.
Lamb, M. E., & Goldberg, W. A. The father child relationship: Biological, evolutionary, and social perspectives. Paper presented to an invitational conference on Parental Behavior, Rutgers University, New Brunswick, NJ, April 1979.
Lamb, M. E. Biological and social contributions to the development of social behavior. Guest lecture series, University of Goteborg (Sweden), October 1979.

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Lamb, M. C. On the origins of personality and social style. Invited presentation at the ETS Conference on the Family, Princeton, N.J., November/December 1979.
Lamb, M. E. The development of social understanding and social attachments in infancy. Invited presentation to the Seminar on the Development of Infants and Parents, Boston, MA, November 1979.
Lamb, M. E. Children in a changing culture: The effects of nontraditional family styles and paternal roles in child development. Invited address to a Conference on Parenthood and Families in the 1980s, Wheelock College, Boston, MA, March 1980.
Frodi, A. M., Lamb, M. E., Hwang, C.-P., & Frodi, M. Father-infant and mother-infant interaction in traditional and nontraditional families. Paper presented to the International Conference on Infant Studies, New Haven, CT, April 1980.
Lamb, M. E. Infant social cognition: The origins of early expectations. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, May 1980.
Lamb, M. E., Frodi, A. M., Frodi, M., & Hwang, P. Effects of gender and caretaking role on parent-infant interaction. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, May 1980.
Lamb, M. E. The role of the father in child development: An overview. Invited public address, School of Social Work, University of Haifa, Haifa, Israel, July 1980.
Lamb, M. E. Co-organizer of and participant in SRCD-sponsored study group on Social Policy, Law, and the Father, held at the University of Haifa, Haifa, Israel, July 1980.
Lamb, M. E. The development of parent-child relationships in infancy. Invited presentation to the International Congress of Psychology, Leipzig (East Germany), July 1980.
Lamb, M. E. The role of the father in child development. Invited address to the Board of Jewish Education, Chicago, June 1980.
Lamb, M. E. The meaning and measurement of family interaction. Invited address to the National Council on Family Relations, Portland, OR, October 1980.
Lamb, M. E. Child abuse: Causes and intervention. Workshop presentation at the School of Social Work, University of Haifa (Israel), November 1980.
Lamb, M. E. Attachment, institutionalization, and child custody. Workshop presentation at the School of Social Work, University of Haifa (Israel), November 1980.
Estes, D. E., Lamb, M. E., Thompson, R. A., & Dickstein, S. Maternal affective quality and security of attachment at 12 and 19 months. Paper presented to the Society for Research in Child Development, Boston, April 1981.

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Frodi, A. M., Murrary, A. D., Lamb, M. E., & Steinberg, J. Behavioral responsiveness to infants in pre-and post-menarcheal girls. Paper presented to the Society for Research in Child Development, Boston, April 1981.
Lamb, M. E. Child development and social policy. Minicourse offering, School of Social Work, University of Haifa (Israel), June 1981.
Thompson, R. A., & Lamb, M. E. The relationship between stranger sociability, temperament, and social experiences at 12 1/2 and 19 1/2 months of age. Paper presented to the Midwestern Psychological Association, Detroit, MI, April 1981.
Thompson, R. A., & Lamb, M. E. Changes in family circumstances and their relationships to the quality of infant-mother attachment: A short-term longitudinal study. Paper presented to the Midwestern Psychological Association, Detroit, MI, April 1981.
Lamb, M. E. Fathers, mothers, and childcare in the 1980s. Invited presentation to a conference on “Families in transition: Children, work and housework”, Cincinnati, Ohio, May 1981.
Thompson, R. A., & Lamb, M. E. Socioemotional development in a family context. Invited address to a conference on “Social connectedness beyond the dyad”, Educational Testing Service, Princeton, NJ, May 1981.
Lamb, M. E. Family bonds, springboards to...... Invited address to the Family Education Conference on “Families Alive: Roots and Wings of Relationships”, Weber State College, Ogden, UT, September 1981.
Sagi, A., Lamb, M. E., Estes, D., Shoham, R., Lewkowicz, K., & Dvir, R. Security of infant-adult attachment among kibbutz-reared infants. Paper presented to the International Conference on Infant Studies, Austin, TX, March 1982.
Frodi, A. M., Lamb, M. E., Hwang, C.-P., & Frodi, M. Increased paternal involvement and family relationships. Paper presented to the International Conference on Infant Studies, Austin, TX, March 1982.
Dickstein, S., Thompson, R. A., Estes, D., Malkin, C. M., & Lamb, M. E. Social referencing and maternal contributions. Paper presented to the International Conference on Infant Studies, Austin, TX, March 1982.
Lamb, M. E. The changing ecology of childhood: Fathers, mothers, and childcare in the 1980’s. Invited address to the National Association of School Psychologists, Toronto, March 1982.
Lamb, M. E., Sagi, A., Lewkowicz, K., Shoham, R., & Estes, D. Security of infant-mother, -father, and -metapelet attachments in kibbutz-reared infants. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, June 1982.

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Lamb, M. E., Malkin, C. M., & Gaensbauer, T. J. Effects of child abuse on the security of infant-mother attachment. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, June 1982.
Thompson, R. A., & Lamb, M. E. Continuity and change in socioemotional development in the second year. Paper presented to the Denver Psychobiology Research Group Retreat, Estes Park, CO, June 1982.
Lamb, M. E., Sagi, A., Lewkowicz, K., Shoham, R., & Estes, D. The effects of kibbutzrearing on the security of infant-mother, -father, and -metapelet attachments in kibbutz-reared infants. Paper presented to the Second International Conference on Kibbutz Studies, New York, June 1982.
Elster, A. B., & Lamb, M. E. Teenaged fathers and child development. Presentation to the Social Science Research Council Study Group on School-aged Parenthood, Baltimore, June 1982.
Thompson, R. A., & Lamb, M. E. Temperamental influences on stranger sociability and the security of attachment. Paper presented to the American Psychological Association, Washington, DC, August 1982.
Thompson, R. A., & Lamb, M. E. Security of attachment and stranger sociability in infancy. Paper presented to the American Psychological Association, Washington, DC, August 1982.
Lamb, M. E. The changing role of fathers: Impact on families and children. Invited address to a Special Institute on Family Changes that Affect Children, Kent State University, Kent, OH, September 1982.
Lamb, M. E. Mothers, fathers, and children in the 1980’s. Address to a Conference on Childcare arrangements in the 1980s, Ministry of Social Affairs, Singapore, January 1983.
Lamb, M. E. Effective parenting: Some cautions and some prescriptions. Public lecture organized by the Ministry of Social Affairs, Singapore, February 1983.
Lamb, M. E. Parental influences on child development. Public lecture organized by the Ministry of Social Affairs, Singapore, February 1983.
Lamb, M. E. Workshop on Attachment and bonding: Conceptual and assessment issues. Child Psychiatric Clinic, Singapore, February 1983.
Lamb, M. E. Consultant to workshop on The development of parent education programs. Ministry of Social Affairs, Singapore, February 1983.
Lamb, M. E. Consultant to workshop on The longitudinal study on the effects of childcare arrangements on child development. Ministry of Social Affairs, Singapore, February 1983.

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Lamb, M. E. Mothers, fathers, and childcare in a changing world. Invited Plenary Address to the Second World Congress on Infant Psychiatry, Cannes (France), March/April 1983.
Lamb, M. E. (Chair) Symposium on “The origins of nurturance” at the biennial convention of the Society for Research in Child Development, Detroit, April 1983.
Adams, G. R., Hetherington, E. M., Lamb, M. E., & Parish, T. S. Divorce and changing familial configurations: What effects might they have on children and how can they be ameliorated? Discussion session at the biennial convention of the Society for Research in Child Development, Detroit, April 1983.
Malkin, C. M., Lamb, M. E., & Burke, M. The development of social expectations in distress-relief contexts. Paper presented to the Society for Research in Child Development, Detroit, April 1983.
Zarbatany, L., & Lamb, M. E. Social referencing as a function of information source: Mothers versus strangers. Paper presented to the Society for Research in Child Development, Detroit, April 1983.
Lamb, M. E. Changing patterns of childcare: Effects on children and families. Invited address to the Rocky Mountain Psychological Association, Snowbird (UT), April 1983.
Lamb, M. E. Invited participant in Social Science Research Council Conference on Parenting across the lifespan, Belmont Conference Center, Belmont, MD, May 1983.
Lamb, M. E. The role of the father in child development. Invited address to The Fatherhood Forum, New York City, June 1983.
Lamb, M. E. Assessing the quality of infant-parent relationships: Paper presented to the International Society for the Study of Behavioral Development, Munich (West Germany), July/August 1983.
Sagi, A., Lamb, M. E., Shoham, R., Lewkowicz, K., & Dvir, R. Development of parent- infant interaction in Israeli kibbutzim. Paper presented to the International Society for the Study of Behavioral Development, Munich (West Germany), August 1983.
Lamb, M. E. Bonding: Critical time or critical process? Invited presentation to the Utah Perinatal Association, Park City, September 1983.
Lamb, M. E. Parents and children in a changing world. Invited plenary address to a joint meeting of the American Academy of Pediatrics and the American Academy of Child Psychiatry, San Francisco, October 1983.
Lamb, M. E. Workshop on Parent-child relationships: Key issues for Pediatricians. American Academy of Pediatrics, San Francisco, October 1983.

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Lamb, M. E. Assessing the security of attachment using the Strange Situation: Approaches, problems and prospects. Workshop presentation to the American Academy of Child Psychiatry, San Francisco, October 1983.
Lamb, M. E. The role of the father in child development. Invited presentation to the Select Committee on Families and Children, US House of Representatives, November 1983.
Lamb, M. E., Pleck, J. H., & Charnov, E. L. Paternal behavior in humans. Paper presented to the American Society for Zoologists and the Animal Behavior Society, Philadelphia, December 1983.
Lamb, M. E. Fathers and children. Workshops offered to staff of the Arizona Department of Economic Security in Phoenix and Tucson, January 1984.
Lamb, M. E. Helping parents and children grow together. Invited presentation to the Intermountain Pediatric Society, Salt Lake City, February 1984.
Hwang, C.-P., Broberg, A., Frodi, M., & Lamb, M. E. Relationships between quality of childcare and quality of peer play in Swedish infants. Presentation to the International Conference on Infant Studies, New York City, April 1984.
Lamb, M. E., & Sagi, A. Fathering in the 1980’s and beyond. Invited address to a Conference on The Father/Family Connection: Theory, Research, and Implications for Policy, Practice, and Life, University of Utah School of Social Work, Salt Lake City, April 1984.
Lamb, M. E. The role of the father in child development. Workshop presentation to Pediatric Associates of Atlanta, Atlanta, GA, May 1984.
Lamb, M. E. Invited participant in Social Science Research Council Conference on Child abuse and neglect: Biosocial perspectives, Boston, MA, May 1984.
Elster, A. B., & Lamb, M. E. (Co-organizers) Study group on Adolescent Fatherhood, funded by the Society for Research in Child Development, Heber (Utah), May 1984.
Lamb, M. E. The role of the father in child development: An overview. Presentation to the Study group on Adolescent Fatherhood, Heber (UT), May 1984.
Elster, A. B., & Lamb, M. E. Adolescent mother-infant-father relationships. Paper presented to the Society for Pediatric Research, San Francisco, May 1984.
Lamb, M. E. The father-child relationship in a changing world. Invited address to the Chicago area Fatherhood Forum, Chicago, June 1984.
Lamb, M. E. Fatherhood and institutional policy. Workshop at the Chicago area Fatherhood Forum, Chicago, June 1984.

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Lamb, M. E. The role of the father in child development. Invited presentation to the conference, Advances in Child Development for Parent Educators, Dominican College, San Rafael, CA, July 1984.
Lamb, M. E. Changing patterns of childcare: Effects on children and families. Invited presentation to a conference on The Child in Social Context, University of Manitoba, Winnipeg (Canada), October 1984.
Lamb, M. E. The father-child relationship. Invited workshops at the Arizona Psychological Association Convention, Flagstaff, AZ, October 1984.
Lamb, M. E. The changing role of fathers. Keynote address, Ninth Annual Regional Intervention Program Conference, Nashville, TN, October 1984.
Lamb, M. E. Child care in a changing world. Keynote address to a conference on Diversity in Family Style: Effects on children, Buffalo, October 1984.
Lamb, M. E. Changing patterns of child care and its effects on families and children. Nebraska Wesleyan University Forum, Lincoln, NE, November 1984.
Lamb, M. E. The changing role of fathers. Carol Shigetomi Memorial Lecture, University of Oregon Health Sciences Center, Portland, OR, January 1985.
Lamb, M. E. The changing roles of fathers. Invited presentation to a conference on The Future of Parenting, University of California, Chico, CA, February 1985.
Lamb, M. E. Single fathers and their children. Invited presentation to the Child Psychology Forum, Goteborg (Sweden), February 1985.
Sagi, A., & Lamb, M. E. Relationships between Strange Situation behaviors and stranger sociability among infants on Israeli kibbutzim. Paper presented to the Society for Research in Child Development, Toronto, April 1985.
Hwang, C.-P., Lamb, M. E., Broberg, A., Frodi, A., & Hult, G. Effects of early father participation on later paternal involvement and responsibility. Paper presented to the Society for Research in Child Development, Toronto , April 1985.
Lamb, M. E. Adolescent fatherhood. Invited presentation at the biennial meeting of the Society for Research in Child Development, Toronto, April 1985.
Lamb, M. E. Fatherhood and father-child relationships in a changing world. Keynote address, Fourth Interdisciplinary Symposium on Human Development, “The Father in Human Development”, University of California-Davis, May 1985.
Lamb, M. E., Teti, D. M., Lewkowicz, K. S., & Malkin, C. M. Child maltreatment and the child welfare system. Presentation to Study Group: “Rethinking Child Welfare: International Perspectives”, Minneapolis, June 1985.

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Elster, A. B., Lamb, M. E., & Ralston, C. Evaluation of a comprehensive adolescent pregnancy program. Presentation to meeting of Program and Evaluation Directors, Office of Adolescent Pregnancy Programs, Washington, DC, June 1985.
Lewkowicz, K. S., & Lamb, M. E. Naive Israelis’ evaluations of Strange Situation behavior. Paper presented to the International Society for the Study of Behavioral Development, Tours (France), July 1985.
Sagi, A. & Lamb, M. E. Is there a congruence between Strange Situation assessments made by trained vs. naive observers: A test of external validity. Paper presented to the International Society for the Study of Behavioral Development, Tours (France), July 1985.
Lamb, M. E. The emergence of a new American father. Keynote address to the Seattle area Fatherhood Forum, Seattle, WA, September 1985.
Lamb, M. E. Adolescent fatherhood. Invited presentation to the Convention of The American Academy of Child Psychiatry, San Antonio, TX, October 1985.
Lamb, M. E. The long term effects of beneficial or adverse early life experiences. Invited address to the Fifth ASEAN Forum on Child and Adolescent Psychiatry, Singapore, November 1985.
Lamb, M. E. Psychosocial aspects of adolescent fatherhood. Invited address to the Fifth ASEAN Forum on Child and Adolescent Psychiatry, Singapore, November 1985.
Lamb, M. E. The ecology of adolescent parenthood. Invited presentation to a symposium on “Ecological approaches to the study of children and families,” University of Victoria, Vancouver, March 1986.
Lamb, M. E. The changing roles of fathers. Lansdowne Memorial Lecture, University of Victoria, Vancouver, March 1986.
Teti, D. M., Lamb, M. E., & Elster, A. B. Long-range educational, financial, and marital consequences of teen marriage in three cohorts of adult males. Paper presented to the Society for Research in Adolescence, Madison, WI, March 1986.
Lamb, M. E. Family relations: The changing roles of fathers. Keynote address to the Tulsa Coalition for Parenting Education Annual Spring Event, Tulsa, OK, April 1986.
Teti, D. M., & Lamb, M. E. Attachment and caregiving between infants and older siblings. Paper presented to the International Conference on Infant Studies, Los Angeles, April 1986.
Malkin, C. M., Lamb, M. E., & Gaensbauer, T. Mother-child interaction: Correlates of maltreatment. Paper presented to the International Conference on Infant Studies, Los Angeles, April 1986.

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Lamb, M. E. Invited participant, Symposium on Young Unwed Fatherhood, Catholic University, Washington, D.C., October 1986.
Lamb, M. E. The formative role of mother-infant interaction. Invited presentation to the International Conference on Infant Studies, Los Angeles, April 1986.
Oppenheim, D., Sagi, A., & Lamb, M. E. Classifications of infant-adult attachment on Israeli kibbutzim in the first year of life and their relation to socio-emotional development four years later. Paper presented to the International Conference on Infant Studies, Los Angeles, April 1986.
Lamb, M. E. The determinants of social competence. Invited presentation to the International Conference on “The Family in Lifespan Perspective,” Berlin, December 1986.
Elster, A. B., Lamb, M. E., Tavare, J., & Ralston, C. W. The effect of intervention on the health, psychosocial, and parenting outcomes of adolescent mothers and their infants at one year. Paper presented to the Society for Adolescent Medicine, Seattle, WA, March 1987.
Elster, A. B., Lamb, M. E., Tavare, J., & Ralston, C. W. The effect of intervention on the public costs associated with adolescent parenthood. Paper presented to the Society for Adolescent Medicine, Seattle, WA, March 1987.
Lamb, M. E. Contemporary fatherhood. Invited presentation to the Annual Parenting Symposium, Los Angeles, March 1987.
Lamb, M. E., Hwang, C.-P., Bookstein, F. L., & Broberg, A. Determinants of social competence in Swedish preschoolers. Paper presented to the Society for Research in Child Development, Baltimore, MD, April 1987.
Nash, A., & Lamb, M. E. Becoming acquainted with unfamiliar adults and peers in infancy. Paper presented to the Society for Research in Child Development, Baltimore, MD, April 1987.
Lamb, M. E. The changing roles of fathers. Keynote address, American Family Therapy Association, Chicago, June 1987.
Lamb, M. E. Invited participant, Workshop on Biobehavioral concepts in development, Bethesda, MD, June/July 1987.
Lamb, M. E. & Hwang, C.-P. Co-organizers: Symposium on Day care and its effects on families and children. International Society for the Study of Behavioral Development, Tokyo, July 1987.
Hwang, C.-P., Lamb, M. E., & Broberg, A. Day care in Sweden. Paper presented to the International Society for the study of Behavioral Development, Tokyo, July 1987.

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Teti, D. M., & Lamb, M. E. Socioemotional/marital outcomes associated with adolescent marriage, childbirth, or both. Paper presented to the American Psychological Association, New York City, August 1987.
Lamb, M. E. Home and out-of-home influences on the development of social, personality and intellectual competence in Swedish preschoolers. Opening address to the Developmental Section, British Psychological Association, York (England), September 1987.
Lamb, M. E. Discussant at Society for Research in Child Development Study Group on “The history of child development.” Belmont Conference Center, Belmont, MD, October 1987.
Lamb, M. E. Invited participant in workshop on The effects of day care. National Center for Clinical Infant programs/National Academy of Science, Washington, DC, October 1987.
Lamb, M. E. Child care and the development of social and intellectual competence. Invited address to the Symposium on the Future of Child Care in the United States, University of Virginia, Charlottesville, VA, November 1987.
Lamb, M. E. The changing role of fathers. Invited presentation at Center for Early Education and Development Symposium, Omaha, NE, November 1987.
Lamb, M. E. Social policy and father involvement. Invited address to Center for Early Education and Development Symposium, Omaha NE, November 1987.
Lamb, M. E. Policy implications of Child Care Research. Panelist, National Research Council, Washington, DC, February 1988.
Lamb, M. E. Quality of day care in Sweden and its effects on child development. Paper presented to the International Child and Youth Care Conference, Washington, DC, March 1988.
Lamb, M. E., & Sternberg, K. J. Some thoughts about infant daycare. Paper presented to the American Orthopsychiatric Association, San Francisco, March 1988.
Ralston, C. W., Elster, A. B., Lamb, M. E. & Dodd, D. H. Behavior patterns in infants of teen mothers. Western Society for Pediatric Research, Carmel, CA, March 1988.
Hwang, C.-P., Broberg, A., & Lamb, M. E. Effects of setting on social competence with peers among Swedish children receiving out-of-home care. Paper presented to the International Conference on Infant Studies, Washington, DC, April 1988.
Lamb, M. E. The changing faces of fatherhood. Invited presentation to the Symposium on Effective Parenting, Syracuse University, Syracuse, NY, June 1988.
Lamb, M. E. Fathers, mothers, and child care. NICHD Child Health Day Symposium, Washington, D.C., October 1988.

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Lamb, M. E. Quality variations in family and center day care. National Conference on Early Childhood Issues, Washington, DC, November 1988.
Lamb, M. E. The changing roles of fathers. Jing Lyman Lecture Series, Stanford University, Palo Alto, CA, February 1989.
Lamb, M. E. High quality childcare inside and outside the family. Keynote address, Durham Day Care Council, Durham, NC, March 1989.
Lamb, M. E., & Sternberg, K. J. The effects of out-of-home care on the development of Swedish preschoolers. Invited Workshop, Durham Day Care Council, Durham, NC, March 1989.
Lamb, M. E., & Sternberg, K. J. Day care and parent-child attachment. Invited Workshop, Durham Day Care Council, Durham, NC, March 1989.
Lamb, M. E. Out-of-home care and child development. D. O. Hebb Lecture, McGill University, Montreal (Canada), April 1989.
Lamb, M. E. The interface between cognition and emotion in early childhood. Keynote address to a conference on Emotion, Cognition, and Behavior, Greensboro, NC, April 1989.
Elster, A. B., Ketterlinus, R. D., & Lamb, M. E. The association between parental status and problem behavior among female adolescents. Paper presented to the Society for Research in Child Development, Kansas City, MO, April 1989.
Sternberg, K. J., Lamb, M. E., Broberg, A., Hwang, C.-P., & Prodromidis, M. Out-of- home care history and compliance in Swedish preschoolers. Paper presented to the Society for Research in Child Development, Kansas City, MO, April 1989.
Nakagawa, M., Lamb, M. E., & Miyake, K. The validity of the Strange Situation with Japanese infants: Antecedents and correlates. Paper presented to the Society for Research in Child Development, Kansas City, MO, April 1989.
Lamb, M. E., Sternberg, K. J., & Knuth, N. Quality of family daycare and the development of peer social skills. Paper presented to the Society for Research in Child Development, Kansas City, MO, April 1989.
Lamb, M. E., & Sternberg, K. J. The development of attachment relationships. Training Seminar, Jerusalem Municipality—Department of Community and Family Services, Jerusalem (Israel), June 1989.
Broberg, A., Hwang, P., & Lamb, M. E. Sociability, play and out-of-home care experiences. Paper presented to the International Society for the Study of Behavioral Development, Jyvaskyla (Finland), July 1989.
Hwang, C-P, Broberg, A., & Lamb, M. E. The Gothenburg child care project. Paper presented to the International Society for the Study of Behavioral Development, Jyvaskyla (Finland), July 1989.

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Lamb, M. E. & Sternberg, K. J. (Co-organizers) Invitational conference on Nonparental Childcare in Historical and Cultural Perspective, Coolfont Conference Center, Berkely Springs, W VA, August 1989.
Lamb, M.E. The changing roles of fathers. Gender Studies Lecture Series, University of Notre Dame, South Bend, IN, November 1989.
Sternberg, K. J., Lamb, M. E., Dawud, S., Lorey, F., Greenbaum, C., Krispin, O., Lowen, L., Sandler, L., Limor, D., & Musseri, S. The effects of domestic violence on children’s perceptions of their parents. Paper presented to the National Council on Family Relations, New Orleans, LA, November 1989.
Lamb, M. E., Sternberg, K. J., Hwang, C.-P., Broberg, A., Prodromidis, M., Ketterlinus, R., & Bookstein, F. L. Families, day care, and the emergence of compliance in Swedish preschoolers. Paper presented to the National Council on Family Relations, New Orleans, LA, November 1989.
Lamb, M. E. Discussant: Symposium on “The father-child relationship: Anthropological perspectives.” Symposium presented to the American Anthropological Association, Washington, DC, November 1989.
Fracasso, M. P., Kimmerly, N., Nakagawa, M. & Lamb, M. E. Cultural and biological influences on infant behavior in the Strange Situation. Paper presented to the Southeastern Conference on Human Development, Richmond, VA, March 1990.
Sternberg, K. J., Lamb, M. E., Prodromidis, M., & Ketterlinus, R. D. Effects of nonparental care on children’s development. Paper presented to the Southeastern Conference on Human Development, Richmond, VA, March 1990.
Ketterlinus, R. D., Lamb, M. E., Henderson, S. H., Das, R. , & Nitz, K. The adolescent parenthood project: Findings and future directions. Paper presented to the Southeastern Conference on Human Development, Richmond, VA, March 1990.
Sternberg, K. J., Lamb, M. E., Dawud, S., Sandler, L., Krispin, O., & Cortez, R. M. The effects of domestic violence on children’s development in Israel. Paper presented to the Southeastern Conference on Human Development, Richmond, VA, March 1990.
Ketterlinus, R. D., Henderson, S. H., & Lamb, M. E. The relative effects of young maternal age, intelligence, and sociodemographics on children’s math and reading achievement. Paper presented to the Society for Research on Adolescence, Atlanta, GA, March 1990.
Ketterlinus, R. D., Das, R., Lamb, M. E., & Elster, A. B. The association between problem behaviors and sexual behavior in a national sample of adolescent males and females. Paper presented to the Society for Research in Adolescence, Atlanta, GA, March 1990.
Lamb, M. E. Risk factors and the future of families. Keynote address to the Association of Oregon Community Mental Health Program Directors, Salishan, OR, April 1990.

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Lamb, M. E. The changing roles of fathers. Invited address to the Association of Oregon Community Mental Health Program Directors, Salishan, OR, April 1990.
Lamb, M. E. The effects of daycare on child development. Invited speaker, Early Education and Child Development Interest Group, American Educational Research Association, Boston, April 1990.
Rosenberg, A., Haynie, D., Scaramella, L., Lamb, M. E. Porges, S., & Fracasso, M. Individual differences in physical and affective functioning in infancy. Paper presented to the International Conference on Infant Studies, Montreal (Canada), April 1990.
Lamb, M. E., Sternberg, K. J., & Prodromidis, M. On the association between daycare and attachment. Paper presented to the International Conference on Infant Studies, Montreal (Canada), April 1990.
Lamb, M. E. & Lancaster, J. B. (Co-organizers) Invitational conference on Birth Management: Cross-cultural and Historical Perspectives. Coolfont Conference Center, Berkely Springs, W VA, May 1990.
Sternberg, K. J., Lamb, M. E., Hwang, C.-P., & Broberg, A. Long-term effects of contrasting early childcare arrangements: The Goteborg childcare project. Paper presented to the International Symposium on Child Care in the Early Years, Lausanne (Switzerland), September 1990.
Ketterlinus, R. D., Henderson, S. H., & Lamb, M. E. Non-parental care in the first three years of life and its association with academic achievement and behavior problems in later childhood: Evidence from a national (US) sample. Paper presented to the International Symposium on Childcare in the Early Years, Lausanne (Switzerland), September 1990.
Lamb, M. E., & Sternberg, K. J. Nonparental childcare: Cross cultural issues and perspectives. Paper presented to the International Symposium on Childcare in the Early Years, Lausanne (Switzerland), September 1990.
Sternberg, K. J., Lamb, M. E. & Prodromidis, M. Association between nonparental care and the security of infant-mother attachment. Paper presented to the International Symposium on Childcare in the Early Years, Lausanne (Switzerland), September 1990.
Lamb, M.E. Overview and future prospects. Closing address to the International Symposium on Childcare in the Early Years, Lausanne (Switzerland), September 1990.
Lamb, M. E. Interviewing young victims of sexual maltreatment: An introduction., Division of Youth Investigation, Israeli Ministry of Labour and Social Affairs, Jerusalem, Israel, December 1990.
Lamb, M. E. Evaluating the effectiveness of intensive home-based intervention relative to foster care. Paper presented to an invitational conference on The Evaluation of Child Welfare Reform, American Enterprise Institute for Public Policy Research, Washington DC, February 1991.

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Lamb, M. E. Successful parenting in the 1990s. Invited public lecture, Centre for Effective Living, Singapore, March 1991.
Lamb, M. E. What research can tell us about effective parenting. Keynote address to the International Seminar on Family Education, National Women’s Education Centre, Saitama, Japan, March 1991.
Ketterlinus, R. D., & Lamb, M. E. (Co-organizers) Conference on Problem Behavior in Adolescence. Coolfont Conference Center, Berkeley Springs, WVA, April 1991.
Sternberg, K. J., Cortes, R. M., Dawud, S., Lamb, M. E., Greenbaum, C., & Krispin, O. Effects of domestic violence on children’s behavior problems. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Dawud, S., Lewensohn, O., Hart, J., Posner, S., Cortes, R. M., Cohen, E., & Lamb, M. E. Effects of domestic violence on children’s adjustment in school. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Scaramella, L. V., Lamb, M. E., Rosenberg, A. A., Haynie, D., & Ducrey, R. A longitudinal assessment of adrenocortical activity in infancy. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Ketterlinus, R. D., Nitz, K., & Lamb, M. E. Adolescent deviance: Stability over time and generations. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Nitz, K., Ketterlinus, R. D., & Lamb, M. E. Children of adolescent and young adult mothers: Gender differences in the transmission of problem behavior. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Ketterlinus, R. D., Lamb, M. E., & Nitz, K. Sexual and nonsexual risk-taking in a national sample of adolescent males. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Prodromidis, M., Hwang, C. P., Broberg, A., Lamb, M. E., & Sternberg, K. J. A composite measure of aggression for children with and without out-of-home care experiences. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Henderson, S. H., Ketterlinus, R. D., & Lamb, M. E. The association among children’s behavioral adjustment, maternal employment and attitudes, and childcare arrangements. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Nakagawa, M., Teti, D. M., Lamb, M. E., & Sugaya, S. Japanese mothers and children in the United States: Life stress, parenting, and the security of attachment. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.

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Krispin, O., Sternberg, K. J., Lewensohn, O., Cohen E., & Lamb, M. E. The dimensions of peer evaluation: A cross-cultural perspective. Paper presented to the Society for Research in Child Development, Seattle, WA, April 1991.
Nsamenang, A. B., & Lamb, M. E. Socialization values in two generations of Bamenda (Cameroon) Grassfields families. Paper presented to a Workshop on Continuities and Discontinuities in the Cognitive Socialization of Minority Children, Washington, DC, June/July 1991.
Sternberg, K. J., & Lamb, M. E. Physical child abuse: Assessment, research, and intervention. Workshop for the Department of Community and Family Services, Municipality of Jerusalem, Jerusalem, Israel, June 1991.
Esplin, P. W., Sternberg, K. J., & Lamb, M. E. Interviewing young victims of sexual abuse. Workshop for the staff of the Israeli National Bureau of Youth Investigation, Herzaliya, Israel, June 1991.
Scholmerich, A., Fracasso, M., & Lamb, M. E. Person, Dyade, Situation und Zeit: Zur methodischen Problematik von Interaktionsbeobachtungen. Paper presented to the Fachgruppe Entwicklungspsychologie, Deutsche Gesellschaft für Psychologie, Köln (Germany), September 1991.
Scholmerich, A., Genovese, S., & Lamb, M. E. Mütterliche Sensibilität: Vergleich mikroanalytischer Verhaltensbeobachtung mit globalen Ratings bei 8-monatigen Kindern. Paper presented to the Fachgruppe Entwicklungspsychologie, Deutsche Gesellschaft für Psychologie, Köln (Germany), September 1991.
Lamb, M. E. Individual differences in infant behavior and development: Dimensions of temperament. Keynote address to the Virginia Developmental Forum, Washington, DC, November 1991.
Lamb, M. E. Childcare in cultural context. Keynote address to a conference on Childcare for children under three: Theories and practices, Berlin, December 18, 1991.
Lamb. M. E., Sternberg, K. J., & Esplin, P. W. Techniques for interviewing young victims of sexual abuse. Presentation to the Family Advocacy Model Program Directors’ Meeting, San Antonio, TX, February 1992.
Ketterlinus, R. D., Lamb, M. E., Chace, S., & Barber, B. K. Factors associated with knowledge of AIDS among pre-and early-adolescents. Paper presented to the Society for Research in Adolescence, Washington, DC, March 1992.
Lamb, M. E., & Fracasso, M. P. The dimensions of temperament in infancy: Physiology, behavior, and maternal perceptions. Invited address to the Quebec Symposium on Childhood and the Family, Quebec City, March 1992.

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Estrada, M. T., & Lamb, M. E. Maternal sensitivity in Central American immigrants: Stability and security of attachment. Paper presented to the International Conference on Infant Studies, Miami, May 1992.
Broberg, A., Lamb, M. E., Fracasso, M., Scholmerich, A., & Rosenberg, A. A. Social inhibition in infancy: Correspondence between laboratory measures and maternal reports. Paper presented to the International Conference on Infant Studies, Miami, May 1992.
Horowitz, S. W., Lamb, M. E., Esplin, P. W., Boychuk, T. B., Krispin, O., & Reiter- Lavery, L. Reliability of criteria-based content analysis of child witness statements. Paper presented to the American Psychological Society, San Diego, June 1992.
Broberg, A., Hwang, C. P., & Lamb, M. E. Inhibition and out-of-home care. Paper presented to the Vth European Conference on Developmental Psychology, Seville (Spain), September 1992.
Lamb, M. E., Hwang, C. P., & Sigel, I. (Conference co-organizers) Images of childhood: Their historical and cultural origins and implications. Satra Bruk, Sweden, September 1992.
Lamb, M. E., Sternberg, K. J., & Esplin, P. W. Interviewing victims of child sexual abuse. Workshop presented to the Family Advocacy Office, United States Air Force, San Antonio, TX, November/December 1992.
Scholmerich, A., Shelley, L., Fracasso, M. P., & Lamb, M. E. Behavioral inhibition: Type or continuum? Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993.
Fracasso, M. P., Lamb, M. E., & Scholmerich, A. The relationship between behavioral inhibition and maternal reports of security and dependency in infancy. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993.
Chace, S. V., & Lamb, M. E. Patterns of cross-informant ratings of child behavior problems. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993.
White, K., & Lamb, M. E. Drinking patterns of young women before, during, and after pregnancy: Perinatal and early childhood outcomes. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993.
MacKinnon-Lewis, C., Lamb, M. E., Dechman, K. K., & Baradaran, L. A longitudinal investigation of the relation between biased maternal and filial attributions and interaction aggressiveness. Paper presented to the Society for Research in Child Development, New Orleans, LA, March 1993.
Lamb, M. E. Inhibition, reactivity, and individuality in infancy: Antecedents and correlates.. Invited address to the Eastern Psychological Association, Arlington, VA, March 1993.

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Lamb, M. E. The effects of nonparental care: What do we really know? 1992/93 Diversity and Context Colloquium, Michigan State University, April 1993.
Lamb, M. E. The origins and correlates of individual differences in behavioral inhibition. Invited address to the American Psychological Society Convention, Chicago, June 1993.
Lamb, M. E., & Keller, H. Patterns of early experience in divergent sociocultural contexts. Symposium presented to the International Society for the Study of Behavioral Development, Recife, Brazil, July 1993.
Lamb, M. E., & Fracasso, M. P. Antecedents and correlates of behavioural inhibition in infancy. Paper presented to the International Society for the Study of Behavioural Development, Recife, Brazil, July 1993.
Lamb, M. E., Sternberg, K. J., Hwang, C. P., & Esplin, P. W. (Conference Co-organizers) The investigation of child sexual abuse: An international, interdisciplinary conference. Satra Bruk, Sweden, September 1993.
Leyendecker, B., Scholmerich, A., Larson, C., Fracasso, M. P., & Lamb, M. E. Vokalisation von Säuglingen und ihre Mutternein Vergleich von Base und Responserates in zwei subkulturellen Stichproben. Paper presented to the Deutsche Tagung für Entwicklungspsychologie, Osnabrück, September 1993.
Leyendecker, B., Fracasso, M. P., & Lamb, M. E. Alltag in Familien mit Säuglingen-wieviel Zeit bleibt zur Eltern-Kind Interaktion. Paper presented to the Deutsche Tagung für Entwicklungspsychologie, Osnabrück, September 1993.
Lamb, M. E. Nonparental childcare: Its contexts and effects. Invited presentation, American Anthropological Association, Washington, DC, November 1993.
Lamb, M. E. Interviewing young victims of sexual maltreatment: Advanced training workshop, Division of Youth Investigation, Israeli Ministry of Labour and Social Affairs, Ma’ale H’amisha, Israel, December 14 -15, 1993.
Sternberg, K. J. & Lamb, M. E. Child witnesses and victims. Presentation to the annual meeting of the U.S. Air Force Area Defense Counsel, Andrews Air Force Base, Landover, Maryland, January 1994.
Lamb, M. E., Hershkowitz, I., Sternberg, K. J., Esplin, P. W., Hovav, M., Manor, T., & Yudilevitch, L. Effects of investigative style on Israeli children’s responses. Paper presented to the American Psychology-Law Society Meeting, Santa Fe, NM, March 1994.
Lamb, M. E. The effects of custody arrangements on children’s development. Testimony presented to the Judiciary Committee of the District of Columbia, Washington, DC, April 1994.

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Lamb, M. E.. Techniques for distinguishing between real and false child sexual abuse allegations. Plenary session presented to the National Conference of the Children’s Rights Council, Bethesda, MD, April 15, 1994.
Lamb, M. E. Paternal influences on child development. Paper presented to an international invitational conference on Changing Fatherhood, Tilburg, The Netherlands, May 23-26, 1994.
Lamb, M. E. Foster care and its alternatives in the United States. Presentation to the Biennial Conference of Social Pediatrics, Benesov, Czech Republic, May 1994.
Lamb, M. E. Nonparental child care in cultural and historical context. Keynote address to interdisciplinary conference on The Family in a Democratic Society, Prague, Czech Republic, May 1994.
Sternberg, K. J., & Lamb, M. E. The evaluation of children’s testimony regarding child abuse. Keynote address to interdisciplinary conference on The Family in a Democratic Society, Prague, Czech Republic, May 1994.
Fracasso, M. P., Lamb, M. E., & Miranda Fricke, D. Ecologies of Euro-and Central- American families living in the United States and middle-and lower-middle class families living in Costa Rica. Paper presented to the International Conference on Infant Studies, Paris, June 1994.
Wessels, H., Lamb, M. E., Hwang, C. P., & Broberg, A. G. Long term effects of contrasting forms of early childcare. Paper presented to the International Conference on Infant Studies, Paris, June 1994.
Lamb, M. E. (Symposium organizer) Early social experiences in Euro-American, Central American, and German families. Symposium presented to the International Conference on Infant Studies, Paris, June 1994.
Broberg, A., Hwang, C. P., Wessels, H., & Lamb, M. E. Determinants of verbal abilities: A longitudinal perspective. Paper presented to the International Society for the Study of Behavioral Development, Amsterdam, July 1994.
Nsamenang, A. B., & Lamb, M. E. Beliefs and practices regarding pregnancy and childbirth among the Nso of Northwest Cameroon. Paper presented to the International Society for the Study of Behavioral Development, Amsterdam, July 1994.
Lamb, M. E. The development of mother-infant relationships. Keynote address to a symposium on Contemporary Themes in European Psychiatry, Birmingham, England, September 1994.
Lamb, M. E. The role of the father in child development. Keynote address to a symposium on Contemporary Themes in European Psychiatry, Birmingham, England, September 1994.

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Lamb, M. E. Fathers are parents too. Paper presented to the National Summit on Fatherhood, Dallas-Fort Worth, October 1994.
Lamb, M. E., & Sternberg, K. J. (Co-organizers) Consensus conference on the effects of divorce and custody arrangements on children’s development. Middleburg, Virginia, December 1994.
Sternberg, K. J., & Lamb, M. E. Child witnesses and victims. Presentation to the annual meeting of the U.S. Air Force Area Defense Counsel, Andrews Air Force Base, Landover, Maryland, January 1995.
Wessels, H., Lamb, M. E., Broberg, A. G., & Hwang, C. P. Antecedents of the “Little Five” in early childhood: The validity of the Five Factor Model in Swedish preschool and elementary children. Paper presented to the Society for Research in Child Development, Indianapolis, IN, March 1995.
Sternberg, K. J., Lamb, M. E., Dawud-Noursi, S., & Greenbaum, C. The effects of domestic violence on children’s perceptions of their parents. Paper presented to the Society for Research in Child Development, Indianapolis, IN, March 1995.
Sternberg, K. J., Lamb, M. E., & Dawud-Noursi, S. Domestic violence in family context. Paper presented to the Fifth Annual Conference of the Center for Human Development and Developmental Disabilities, New Brunswick, New Jersey, May 1995.
Wessels, H., Lamb, M. E., Broberg, A. G., & Hwang, C. P. Der Einfluss väterlicher Erziehungsbeteiligung auf die Persönlichkeitsentwicklung von Kindern im Vorschulalter: Ergebnisse eines Längsschnitts. [The influence of paternal child- rearing involvement on the personality development of preschool children: Some longitudinal results.] Paper presented to the German Sociological Society, April 1995.
Leyendecker, B., Lamb, M. E., & Scholmerich, A. Synchrony of mother-infant interaction: The effects of context, subcultural group, and length of observation. Paper presented to the Applied Behavioral Analysis Association, Washington DC, May 1995.
Shelley-Sirici, L., Fracasso, M. P., Busch-Rossnagel, N. A., & Lamb, M. E. Mother-infant social and instructional interaction in culturally diverse populations. Poster presented to the American Psychological Society Convention, New York City, June 1995.
Wessels, H., Lamb, M. E., & Broberg, A. G. Antecedents of the five factor model in early childhood: The validity of the five factor model in Swedish preschool and elementary school children. Paper presented to the International Society on Social Relations, Williamsburg VA, June 1995.
Sternberg, K. J., & Lamb, M. E. Effects of interview style on the informativeness of child witnesses. Paper presented to the Annual Convention of the American Professional Society on the Abuse of Children, Tucson AZ, June 1995.

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Shelley-Sirici, L., Fracasso, M. P., Busch-Rossnagel, N. A., & Lamb, M. E. A longitudinal study of mother-infant social and instrumental interaction. Poster presented to the American Psychological Association Convention, Washington DC, August 1995.
Leyendecker, B., Scholmerich, A., Lamb, M. E., & Miranda Fricke, D. Interaktionsbeobachtungen im Kontext: Der Einfluss sozialer Schicht. Paper presented to the Deutsche Tagung für Entwicklungspsychologie, Leipzig, September 1995.
Sternberg, K. J., Lamb, M. E., & Dalenberg, C. Enhancing children’s competency as witnesses: A research-based approach. Invited workshop presented to the annual San Diego Conference on Responding to Child Maltreatment, San Diego, January 1996.
Lamb, M. E., Sternberg, K. J., Esplin, P. W., Hershkowitz, I., Orbach, Y., & Hovav, M. Validation of criterion-based content analysis in a field study. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., February/March 1996.
Lamb, M. E., Hershkowitz, I., Sternberg, K. J., Boat, B., & Everson, M. Informativeness of children’s accounts in interviews with and without anatomical dolls. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., February/March 1996.
Hershkowitz, I., Lamb, M. E., Sternberg, K. J., & Esplin, P. W. The relationships among interviewer utterance type, CBCA scores, and the richness of children’s responses. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., February/March 1996.
Sternberg, K. J., Lamb, M. E., Hershkowitz, I., Orbach, Y., Hovav, M., & Esplin, P. W. Effects of introductory style on children’s accounts of sexual abuse. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., February/March 1996.
Orbach, Y., Lamb, M. E., Sternberg, K. J., & Williams, J. M. G. The effect of domestic violence on children’s retrieval of autobiographical memory. Paper presented to the American Psychology-Law Society Convention, Hilton Head, N.C., February/March 1996.
Dawud-Noursi, S., Sternberg, K. J., Lamb, M. E., Kaufman, A., & Larson, C. The effects of domestic violence on adolescents’ relationships and conflicts. Paper presented to the Society for Research on Adolescence, Boston, March 1996.
Lamb, M. E. The long term effects of nonparental care arrangements on the development of Swedish children. Paper presented by invitation to the International Conference on Infant Studies, Providence, Rhode Island, April 1996.
Leyendecker, B., Scholmerich, A., Lamb, M. E., & Harwood, R. Central-and Euro- American mothers’ evaluation of infant behavior in everyday contexts. Paper presented to the International Conference on Infant Studies, Providence, Rhode Island, April 1996.

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Lamb, M. E. What’s a father for? Keynote address to an invitational conference on British Fatherhood, London, April 30, 1996.
Lamb, M. E. What are fathers for? Invited presentation to the Conference on Developmental, Ethnographic, and Demographic Perspectives on Fatherhood, National Institutes of Health, Bethesda MD, June 1996.
Lamb, M. E. Infancy and childhood: The challenges and the opportunities. Visiting Faculty at the Thirteenth Annual Conference on Infancy and Childhood: Current Directions in Theory, Research, and Application. Utah State University, Ogden UT, June 1996.
Orbach, Y., Lamb, M.E., Sternberg, K.J., Williams, J.M.G., & Dawud-Noursi, S. The effect of domestic violence on children’s retrieval of autobiographical memory. Paper presented to the International Research Conference on Trauma and Memory, University of New Hampshire, Durham, NH, July 1996.
Nsamenang, A. B., & Lamb, M. E. The environment of the infant among Nso of Northwest Cameroon: Some theoretical issues and research implications. Paper presented to the 26th International Congress of Psychology, Montreal, August 1996.
Leyendecker, B., Lamb, M. E., Scholmerich, A., & Fricke, D. M. Observing mother-infant interaction: Minimizing and maximizing the effects of SES. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996.
Leyendecker, B., Lamb, M. E., Harwood, R., & Scholmerich, A. The child or the circumstances: Who is responsible? Parental evaluations of everyday situations in two diverse cultural niches. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996.
Ahnert, L., Freytag, R., Hermsdorf, C., Kuchler, E., Lamb, M. E., Sternberg, K. J., & Porges, S. W. The impact of stress and coping on adaptation to day care in infancy. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996.
Eckensberger, L. & Lamb, M. E. (Co-organizers) Nature, culture, and the question, “why?” Invited symposium at International Society for the Study of Behavioral Development, Quebec (Canada), August 1996.
Lamb, M. E. The long term effects of nonparental care arrangements on the development of Swedish children. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996.
MacKinnon-Lewis, C., Lamb, M. E., Campbell, J., & Hattie, J. Antecedents and consequences of boys’ aggression in the family and school. Paper presented to the International Society for the Study of Behavioral Development, Quebec (Canada), August 1996.

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Dawud-Noursi, S., Sternberg, K. J., & Lamb, M. E. Children’s maltreatment experiences: Perspectives of multiple informants. Paper presented to the 11th National Conference on Child Abuse and Neglect, Washington, DC, September 1996.
Leyendecker, B., Scholmerich, A., Lamb, M. E., & Harwood, R. Langfristige Sozialisationsziele und die Bewertung von Alltagsverhalten von Säuglingen: ein Vergleich zentralamerikanischer und U.S.-amerikanischer Mutter. Paper presented to the German Psychology Association, Munich, September 1996.
Lamb, M. E. The development of father-infant relationships. Paper presented to the National Center on Fathers and Families, Roundtable on Role Transitions, Philadelphia, October 8, 1996.
Lamb, M. E. Research on father involvement: An historical overview. Keynote address to the NICHD Conference on Father’s Involvement, Bethesda MD, October 1996.
Lamb, M. E. Commentary on “Men’s roles in families: A look back, a look forward”. Paper presented to the Pennsylvania State University National Symposium on Men in Families, University Park PA, October/November 1996.
Lamb, M. E. When we were very young......Invited address to a symposium in honor of Professor Michael Lewis, Institute for the Study of Child Development, New Brunswick NJ, January 1997.
Lamb, M. E. Fathers, children, and nontraditional families: Characteristics, consequences, and strategies for change. Invited presentation to the American Association for the Advancement of Science Annual Meeting, Seattle WA, February 1997.
Dawud-Noursi, S., Sternberg, K. J., & Lamb, M. E. Effects of family violence on Israeli children’s adjustment at school. Paper presented to the Society for Research in Child Development, Washington DC, April 1997.
Bassen, C., Braveman, J., Pearlman, J., & Lamb, M. E. Gender differences in normal adolescents: Guilt, reparation, and shame. Poster presented to the Society for Research in Child Development, Washington DC, April 1997.
Roberts, K. P., Lamb, M. E., Sternberg, K. J., Beresford, J., Domenici-Lake, P. L., & Heiges, K. The effect of a delay on the incorporation of post event information into children’s eyewitness memory. Poster presented to the Society for Research in Child Development, Washington DC, April 1997.
Bassen, C., Braveman, J., Pearlman, J., & Lamb, M. E. Gender differences in normal adolescents: Self assessment of traits according to role. Poster presented to the Society for Research in Child Development, Washington DC, April 1997.
Lamb, M. E. Noncustodial fatherhood and its effects on child development. Plenary address to a conference on “The post-divorce family: research and policy issues,” University of Nebraska, Lincoln, May 1997.

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Weise, P., Hermsdorf, C., Barthel, M., Ahnert, L., & Lamb, M. E. The impact of infant temperament on the adjustment to daycare. Poster presentation to the American Psychological Society, Washington DC, May 1997.
Bressler, Y., Ahnert, L. & Lamb, M. E. Effects of maternal and infant age on German mothers’ perceptions of stress. Poster presentation to the American Psychological Society, Washington DC, May 1997.
Bressler, Y., Ahnert, L. & Lamb, M. E. Effects of enrollment in daycare on everyday experiences of German toddlers. Poster presentation to the American Psychological Society, Washington DC, May 1997.
Seltenheim, K., Ahnert, L. & Lamb, M. E. The formation of attachments between infants and care providers in German daycare centers. Poster presentation to the American Psychological Society, Washington DC, May 1997.
Roberts, K., Lamb, M. E., & Randall, D. W. Children’s responses to interviewers’ mistakes. Paper presented to the International Family Violence Research Conference, Durham NH, June/July 1997.
Scholmerich, A., & Lamb, M. E. Infant temperament, fear of novelty and behavioural inhibition: A longitudinal study over the first year of life. Paper presented to an International conference on shyness and self-consciousness, University of Wales, Cardiff, June 1997.
Roberts, K., Lamb, M. E., & Randall, D. W. Assessing the plausibility of allegations of sexual abuse from children’s accounts. Paper presented to the Society for Applied Research in Memory and Cognition, Toronto, July 1997.
Lamb, M. E. What psychology tells us about interviewing children. Keynote presentation to a conference on Cleveland ten years on: Child protection—What really matters?”, London, England, September 10, 1997.
Lamb, M. E. Fatherhood and father-child relationships. Keynote address to the annual Mental Health Association Conference of Northern Indiana, South Bend IN, October 17, 1997.
Marsiglio, W., Day, R., & Lamb, M. E. Social fatherhood and paternal involvement: Conceptual, data, and policymaking issues. Paper presented to the Theory Construction and Research Methods Workshop, National Council on Family Relations, Crystal City, VA, November 5, 1997.
Lamb, M. E. Discussant in Symposium, “Towards a maturing conceptualization of father involvement”, National Council on Family Relations, Crystal City, VA, November 9, 1997.
Lamb, M. E. Discussant in Symposium, “Working with young fathers”, National Council on Family Relations, Crystal City, VA, November 10, 1997.

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Roberts, K. P., Lamb, M. E., & Randall, D. W. “Bill touched me” “Bob touched you?”: Interviewers’ ‘mistakes’ during investigative interviews. Poster presented to the American Psychology-Law Society conference, Redondo Beach CA, March 1998.
Roberts, K. P., Lamb, M. E., Zale, J. L., & Randall, D. W. Qualitative differences in children’s accounts of confirmed and unconfirmed incidents of sexual abuse. Poster presented to the American Psychology-Law Society conference, Redondo Beach CA, March 1998.
Roberts, K. P., Sternberg, K. J., Lamb, M. E., & Zale, J. L. Effects of introductory style on children’s accounts of a staged event. Poster presented to the American Psychology-Law Society conference, Redondo Beach CA, March 1998.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Fauchier, A., Horowitz, D., & Hovav, M. Visiting the scene of the crime: Effects on children’s recall of alleged abuse. Poster presented to the American Psychology-Law Society conference, Redondo Beach CA, March 1998.
Scholmerich, A., & Lamb, M. E. (Co-chairs) Adult-infant interaction: Observations of everyday behavior in diverse cultural settings. Symposium presented to the International Conference on Infant Studies, Atlanta, April 1998.
Lamb, M. E. Discussant on “The role of fathers in early affective development”. Symposium presented to the International Conference on Infant Studies, Atlanta, April 1998.
Lamb, M. E. Discussant on “Studying the role of fathers in the lives of low-income infants and toddlers”. Symposium presented to the International Conference on Infant Studies, Atlanta, April 1998.
Lamb, M. E., Hwang, C. P., & Sternberg, K. J. (Co-organizers) International conference on investigative interviewing procedures. Satra Bruk, Sweden, April 25-29, 1998.
Lamb, M. E. The influence of father love on child development: A commentary. Presentation to the American Psychological Society Annual Convention, Washington, DC, May 23, 1998.
Lamb, M. E. The role of fathers in low-income families. Invited presentation to Head Start’s Fourth National Research Conference, Washington, DC, July 10, 1998.
Lamb, M. E. Patterns of parent-child interaction across cultures and contexts. Paper presented in a symposium on “A baby and somebody: Effects of parental contact and proximity, day and night, on human infant development” at the University of Notre Dame, South Bend IN, September 28, 1998.
Lamb, M. E., & Sternberg, K. A. Eliciting and evaluating children’s accounts of sexual abuse. Invited presentation to the National Child Abuse Defense and Resource Center Annual Convention, Las Vegas NV, October 23, 1998.

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Hewlett, B. S., Lamb, M. E.., Leyendecker, B., & Scholmerich, A. Internal working models, trust, and sharing among foragers. Paper presented to the International Conference on Hunting and Gathering Societies, Osaka, Japan, October 25, 1998.
Lamb, M. E., & Sternberg, K. J. Eliciting accurate investigative statements from children. Invited workshop presentation to the Fifteenth National Symposium on Child Sexual Abuse, Huntsville, AL, March 12, 1999.
Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., Fauchier, A., Shiloah, H., Horowitz, D., & Hovav, M. Interviewing at the scene of the crime: Effects on children’s recall of alleged abuse. Poster presented to the biennial meeting of the Society for Research in Child Development, Albuquerque, NM, April 1999.
Cabrera, N., Boller, K., & Lamb, M. E. The demography and study of low income fathers. Paper presented to the biennial meeting of the Society for Research in Child Development, Albuquerque, NM, April 1999.
Lamb, M. E., & Sternberg, K. J. Effective interviewing techniques: Eliciting narrative accounts from alleged victims. Invited workshop presentation to the American Professional Society on Child Abuse and Neglect Annual Colloquium, San Antonio TX, June 5, 1999.
Roberts, K. P., Sternberg, K. J., Lamb, M. E., Zale, J. L., & Sirrine, N. K. The effectiveness of open-ended and direct rapport-building styles on children’s reports of a staged event. Paper presented to the biennial meeting of the Society for Applied Research into Memory and Cognition, Boulder CO, July 1999.
Cabrera, N. J., Tamis-LeMonda, C. S., Lamb, M. E., & Boller, K. Measuring father involvement in Early Head Start: A multidimensional conceptualization. Paper presented to the National Conference on Health Statistics, Washington, DC, August 1999.
Orbach, Y., Lamb, M. E., Sternberg, K. J., Esplin, P. W., & Hershkowitz, I. Enhancing the quality of forensic interviews in field settings by implementing interview protocols. Invited presentation to the American Psychological Association Convention, Boston, August 1999.
Lamb. M. E., & Sternberg, K. J. L’entrevue d’investigation des jeunes victimes d’abus sexuel. [Investigative interviews of young victims of sexual abuse.] Forum sur les abus sexuels de l’Association des centres jeunesse du Québec/Partenariat de recherche et d’intervention en matière d’abus sexuel a l’endroit des enfants, Montréal, Québec, September 1999.
Scholmerich, A., Lamb, M. E., & Leyendecker, B. (Co-organizers) Infants in cultural context. International workshop on early infant experiences in diverse cultural contexts. Bochum, Germany, October 1999.

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Lamb, M.E., Sternberg, K.J., Orbach, Y., Hershkowitz, I. The development of the NICHD Investigative Protocol. Presentation at a symposium on ‘Training child investigators in developmentally adapted interviews’, Regional European Conference of International Society for the Prevention of Child Abuse and Neglect, Jerusalem, Israel, October 1999.
Orbach, Y., Hershkowitz, I., Lamb, M.E., Sternberg, K.J. Implementing interview protocols in forensic investigations of child witnesses. Presentation at a seminar on ‘Interviewing child-witnesses in legal settings’, sponsored by the Youth Probation Service, Ministry of Labour and Social Welfare, and The League for Children, School of Social Work, Tel-Aviv University, Tel Aviv, Israel, October 1999.
Lamb, M. E. Post-divorce parent-child relationships and recommendations for policy. Presentation to the Ohio Task Force on Family Law and Children, Columbus, January 2000.
Lamb, M. E., & Sternberg, K. J. Investigative interviews of alleged child abuse victims. Invited workshop for 16th National Symposium on Child Sexual Abuse, Huntsville, AL, March 2000.
Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., Hershkowitz, I., Horowitz, D. Eliciting information about alleged abuse using open-ended prompts: An analysis of field demonstration studies. Paper presented to the biennial American Psychology Law Society meetings, New Orleans, March 2000.
Orbach, Y., Lamb, M. E., Sternberg, K. J., Esplin, P. W., Hershkowitz, I., Horowitz, D. Assessing the value of scripted protocols for forensic interviews of alleged abuse victims. Paper presented to the biennial American Psychology Law Society meetings, New Orleans, March 2000.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Horowitz, D. A comparison of mental and physical context reinstatement in forensic interviews with alleged victims of sexual abuse. Poster presented to the biennial American Psychology Law Society meetings, New Orleans, March 2000.
Roberts, K. P., Sternberg, K. J., Lamb, M. E., & Sirrine, N. The effects of rapport building on the quality of information reported by children about a staged event. Paper presented to the biennial American Psychology Law Society meetings, New Orleans, March 2000.
Lamb, M. E. Post-divorce parent-child relationships. Keynote address to the 24th Annual Colorado Conference on Children and Divorce, Denver, April 2000.
Lamb, M. E. Why are fathers important? Keynote address to the Delaware Governor’s Conference on Fatherhood, Dover, Delaware, June 2000.
Campbell, J., Lamb, M. E., & Hwang, C. P. Early child care experiences and children’s social competence between 1.5 and 15 years of age. Paper presented to the National Head Start Research Conference, Washington, June 2000.

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Ahnert L., Rickert H., Porges S. W., Lamb M. E. Infant cardiac activity during adjustment to child care and relations with attachment security. Paper presented to the International Conference on Infant Studies, Brighton, England, July 2000.
Lamb, M. E., & Sternberg, K. J. Eliciting narrative accounts from alleged victims of child sexual abuse. Invited workshop to the XXVII International Congress of Psychology, Stockholm, Sweden, July 2000.
Lamb, M. E., Orbach, Y., Sternberg, K. J., & Esplin, P. W. (Organizers) Improving investigative interview techniques. International Interdisciplinary Workshop, Salt Lake City, August 27 to September 1, 2000.
Lamb, M. E. Overview of recent research on the effectiveness of structured investigative interview guides. Presentation to International Interdisciplinary Workshop on Improving Investigative Interview Techniques. Salt Lake City, August 28 2000.
Lamb, M. E. Investigative interviews of alleged child abuse victims. Satellite Video presentation, The National Children’s Advocacy Center, Huntsville AL, September 5, 2000.
Lamb, M. E. Forensic interview techniques that maximize the competence of child witnesses. Invited workshop, 16th Annual Midwest Conference on Child Sexual Abuse and Incest, Madison, WI, October 25, 2000.
Lamb, M. E., & Holliday, K. Parental relocation: Trying the ‘out of state move’ case. National Association of Counsel for Children Children’s Law Conference, Washington DC, November 5, 2000.
Lamb, M. E. Male familial involvement: An update. Symposium on the Diverse experiences of males in families, National Council on Family Relations Annual Conference, Minneapolis, November 9, 2000.
Lamb, M. E. Cross-cultural perspectives on the role and importance of fathers in child development. Keynote address to national conference on ‘The Role and Importance of Fathers in the Child’s Life’, Istanbul, Turkey, December 20, 2000.
Sternberg, K. J., & Lamb, M. E. Structured interview format for forensic interviewers. Advanced workshop, San Diego Conference on Responding to Child Maltreatment, San Diego, January 22 to 26, 2001.
Lamb, M. E., Chuang, S. S., & Hwang, C. P. Father involvement in Sweden: Exploring its components and stability over time. Paper presented to an interdisciplinary workshop on Measuring father involvement, Natcher Conference Center, National Institutes of Health, Bethesda MD, February 2001.
Lamb, M. E. Developmental theory and public policy: A cross-national perspective. Green College Lecture, University of British Columbia, Vancouver, Canada, February 5, 2001.

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Lamb, M. E. Eliciting information from child sexual abuse victims. Tanner Lecture Series, University of Utah, Salt Lake City, February 27, 2001.
Lamb, M. E. Commentary on a lecture by Sarah Blaffer Hrdy, “ The past, present, and future of the human family.’ Tanner Lectures in Human Values, University of Utah, Salt Lake City, February 28, 2001.
Kelly, J. B., & Lamb, M. E. Using child development research to make appropriate custody and access decisions for young children. Workshop presentation to the Judicial Council of California’s and Family Court Services’ Statewide Educational Institute, Costa Mesa CA, March 23, 2001.
Lamb, M. E. Alleged child sexual abuse: The expert witness and the court. Fakultetsopponent (Clara H. Gumpert), Institutionen for Forkhalsovetenskap—Avdeling for stressforskning, Karolinska Institutet, Stockholm (Sweden), March 30, 2001.
Lamb, M. E. Fathers, mothers, and families: Shaping child development. Invited address, VIII Congress of the Association Internationale pour la Formation et la Recherche en Education Familiale, Saint-Sauveur-des-Monts, Québec, April 18, 2001.
Sternberg, K. J., Lamb, M. E., Orbach, Y., Esplin, P. W., & Mitchell, S. Can young children respond informatively to open-ended questions posed by forensic interviewers? Paper presented to the biennial conference of the Society for Research in Child Development, Minneapolis, April 21, 2001.
Lamb, M. E., Orbach, Y., Sternberg, K. J., Hershkowitz, I., & Horowitz, D. The accuracy of investigators’ verbatim notes of their forensic interviews with alleged child abuse victims. Paper presented to the biennial conference of the Society for Research in Child Development, Minneapolis, April 20, 2001.
Ahnert, L., & Lamb, M. E. Infant-care provider attachments in contrasting German child care settings. Poster presented to the biennial conference of the Society for Research in Child Development, Minneapolis, April 20, 2001.
Lamb, M. E. Developmentally appropriate visitation. Invited Workshop, Custody and Visitation Symposium , National Council of Juvenile and Family Court Judges, Charlotte NC, June 5, 2001.
Lamb, M. E. Developmentally appropriate forensic interview techniques. Presentation to National Children’s Law Conference, San Diego CA, October 2, 2001.
Lamb, M. E. Psychological issues in child custody. Invited presentation to the conference on Advanced Family Law, National Council of Juvenile and Family Court Judges, Reno NV, October 24, 2001.
Lamb, M. E. Psychological issues and custody. Invited presentation to the conference on Recent Developments in Juvenile and Family Law: An Update for Appellate Judges, National Council of Juvenile and Family Court Judges, Reno NV, October 25, 2001.

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Lamb, M. E. Using child development research to make appropriate custody and access decisions for young children. Workshop presentation to the Judicial Council of California’s and Family Court Services’ Statewide Educational Institute, Palm Springs CA, October 26, 2001.
Lamb, M. E. Father-child relationships and developmentally appropriate parenting plans. Keynote address to the annual conference of the Massachusetts Association of Guardians ad Litem, Waltham MA, November 9, 2001.
Lamb, M. E. Maximizing the quality of information elicited from alleged victims of child abuse. Invited address to ‘Child witnessing: Current themes’, University of Portsmouth, Portsmouth, England, December 7, 2001.
Lamb, M. E. Parent-child relationships before and after divorce. Invited presentation in Symposium on ‘Custody in a mobile society’, Pennsylvania Trial Courts Annual Conference, Philadelphia, February 23, 2002.
Lamb, M. E. Placing children’s interests first: Developmentally appropriate parenting plans. Invited address, Center for Children Families, and the Law, University of Virginia, Charlottesville, February 28, 2002.
Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., Stewart, H., & Mitchell, S. Age differences in young children’s responses to open-ended invitations in the course of forensic interviews. Paper presented to the American Psychology-Law Society Conference, Austin TX, March 7-10, 2002.
Thierry, K. L., Lamb, M. E., & Orbach, Y. Relation between source monitoring and child witness responses to open-ended questions about alleged abuse. Poster presented to the American Psychology-Law Society Conference, Austin TX, March 7-10, 2002.
Lamb, M. E., & Sternberg, K. J. Developmentally sensitive interview practices. Invited workshop, Eighteenth National Symposium on Child Sexual Abuse, Huntsville AL, March 19-22, 2002.
Chuang, S. S., Lamb, M. E., & Hwang, C. P. The emergence of personality development in early childhood: A longitudinal investigation of ego-resiliency and ego-control in Sweden. Poster presentation to the Conference on Human Development, Charlotte NC, April 4-7, 2002.
Lamb, M. E. Using child development research to make developmentally appropriate parenting plans following divorce. Keynote address, Annual Meeting of the Interdisciplinary Forum on Mental Health and Family Law, New York City, April 16, 2002.
Ahnert, L., Lamb, M. E., Porges, S. W., & Rickert, H. Infant emotions and cardiac reactivity during adjustment to child care I: Perspectives from infant-mother attachment. Poster presented at the International Conference on Infant Studies, Toronto, Canada, April 19, 2002.

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Ahnert, L., Lamb, M. E., Porges, S. W., & Rickert, H. Infant emotions and cardiac reactivity during adjustment to child care II: The emerging infant-care provider attachment. Poster presented at the International Conference on Infant Studies, Toronto, Canada, April 19, 2002.
Lamb, M. E. Assessing the strengths of child witness statements. Invited workshop for the 28th Annual Interservice Military Judges’ Seminar, Montgomery AL, April 23, 2002.
Lamb, M. E. Special developmental needs of children under five years old. Invited workshop for the Custody and Visitation Symposium, National Council of Juvenile and Family Court Judges, Charleston SC, May 6, 2002.
Orbach, Y., Lamb, M. E., Sternberg, K. J., Esplin, P. W., Stewart, H. L., & Mitchell, S. Age differences in young children's reports of temporal information in the course of forensic interviews. Paper presented to the Jean Piaget Society, Philadelphia, June 7, 2002.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., Horowitz, D., & Esplin, P. W. Improving credibility assessment in child sexual abuse investigations: The role of the NICHD investigative interview protocol. Paper presented to the XXV International Congress on Applied Psychology, Singapore, July 9, 2002.
Lamb, M. E. Developmentally appropriate visitation and access decisions. Invited presentation to the Judicial Conference of Virginia for District Court Judges, Virginia Beach, August 12-13, 2002.
Hewlett, B. S., & Lamb, M. E. (Co-organizers) Culture and ecology of forager children. Preconference workshop, Conference on the Hunters and Gatherers Society, Edinburgh (Scotland), September 7-8, 2002.
Lamb, M. E. The role of non-parental child care in child development. Address and discussion with Netherlands Delegation on Child Care, Washington DC, October 7, 2002.
Lewis, C., & Lamb, M. E. Research on fatherhood and father-child relationships. International Fatherhood Summit. Christ Church College, Oxford, England, March 24-30, 2003.
Lamb, M. E. Promoting child well-being through mother- and father-child relationships. Berger Institute Invited Lecture, Claremont-McKenna College, Pomona CA, March 31, 2003.
Chuang, S. S., Hwang, C., P., & Lamb, M. E. Paternal leave and paternal involvement in Sweden. Paper presented to the biennial meeting of the Society for Research in Child Development, Tampa FL, April 24-27, 2003.
Shannon, J. D., Tamis-LeMonda, C. S., Cabrera, N., & Lamb, M. E. Determinants of father involvement: Presence/absence and quality of engagement. Paper presented to the biennial meeting of the Society for Research in Child Development, Tampa FL, April 2427, 2003.

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Lamb, M. E. Developmentally appropriate parenting plans. Invited workshop for the Custody and Visitation Symposium, National Council of Juvenile and Family Court Judges, San Diego, May 5, 2003.
Lamb, M. E. Participant in workshop on The American Law Institute’s Principles of Family Dissolution, Woodrow Wilson International Center for Scholars, Washington DC, May 20, 2003.
Lamb, M. E., Tamis-Lemonda, C. S., Shannon, J., & Cabrera, N. Low-income fathers in the USA: A closer look at the children in the Early Head Start Evaluation Study. Presentation to the European Social Research Council Research Seminar Series seminar on Fathers and Fatherhood: New Directions for Research and Policy, London, England, June 9, 2003.
Pipe, M. E., Cederborg, A-C., Orbach, Y., & Lamb, M. E. (Co-organizers). Conference on resistance to disclosure by alleged victims of sexual abuse. Satra Bruk, Sweden, August 11-15, 2003.
Lamb, M. E. Developpement socio-emotionnel du jeune enfant et scolarisation precoce [Socioemotional development in the context of early childhood education]. Keynote address to Colloque du Service de la Recherche en Education 2003: 2eme Colloque Constructivisme et Education: Scolariser la petite enfance? [ Educational Research Unit Colloquium 2003: Second Colloquium on Constructivism and Education: Educationalizing infancy?], University of Geneva, Geneva (Switzerland), September 15-17, 2003.
Ahnert, L., Carter, S. C., Porges, S. W., & Lamb, M. E. (Co-organizers). Attachment and bonding: A new synthesis. Dahlem Palace, Berlin, September 28 - October 3, 2003.
Lamb, M. E. Custody issues. North Carolina Association of District Court Judges, Boone NC, October 9, 2003.
Lamb, M. E. Developmentally appropriate parenting plans. Annual conference, Harford County Office of Family Court Services, Bel-Air MD, November 18, 2003.
Lamb, M. E., & Pipe, M. E. Repeated interviewing in forensic contexts: Is there a baby in the bathwater? Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004.
Orbach, Y., Hershkowitz, I., Pipe, M. E., Lamb, M. E., & Sternberg, K. J. Effects of repeated interviews on the information retrieved by child-witnesses in forensic interviews. Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004.
Pipe, M. E., Sternberg, K. J., Lamb, M. E., Orbach, Y., & Stewart, H. Non-disclosures and alleged abuse in forensic interviews. Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 4 – 7, 2004.

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Hershkowitz, I., Orbach, Y., Lamb, M. E., Sternberg, K. J., & Pipe, M. E. Dynamics of forensic interviews with children who do not disclose abuse. Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004.
Cederborg, A. C., & Lamb, M. E. Delay of disclosure, minimization, and denial of abuse in a multi-victim case. Paper presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004.
DeBoard, R., Orbach, Y., Mendoza, M., Jensen, S., & Lamb, M. E. An analysis of interviews in which children did not make allegations of suspected sexual abuse. Poster presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004.
Chavez, V., Sullivan, K., Pipe, M. E., Orbach, Y., & Lamb, M. E. Spontaneous disclosure in forensic interviews. Poster presented to the biennial American Psychology-Law Society Conference, Scottsdale AZ, March 5, 2004.
Fouts, H. N., Hewlett, B. S., & Lamb, M. E. Developmental and cultural differences in the breastfeeding context among four small-scale societies in Central Africa. Paper presented to the International Conference on Infant Studies, Chicago, May 6, 2004.
Brown, D., Lamb, M. E., Aldridge, J., Sternberg, K. J., & Orbach, Y. Improving the quality of forensic interviews of children. Poster presented to the Forensic Psychology Research Group conference on Eliciting information from eye witnesses and victims of crime: Interviewing and identification, Open University, Milton Keynes, U.K., May 6, 2004.
Lamb, M. E. Children are competent witnesses when competently interviewed. Cattell Award Address to the American Psychological Society Annual Convention, Chicago, May 28, 2004.
Sternberg, K. J., Abbott, C., Baradaran, L. P., Guterman, E., & Lamb, M. E. Effects of different types and frequencies of family violence on children’s adjustment. Poster presented to the American Psychological Society Annual Convention, Chicago, May 28, 2004.
Chuang, S. S., Lamb, M. E., & Hwang, C. P. Swedish adolescents’ relational and assertive selfconcepts across social contexts and relationships. Poster presented to the American Psychological Society Annual Convention, Chicago, May 28, 2004.
Gernsbacher, M. A., Lamb, M. E., Levenson, R., Levitin, T., Schnur, P., Snyder, M., & Steinberg, J. Show me the money: Grant-getting for graduate student and new faculty. Workshop at the American Psychological Society Annual Convention, Chicago, May 27, 2004.
Lamb, M. E., LaRooy, D., Orbach, Y., & Pipe, M. E. Children’s recall of real world experiences. Symposium presented at the American Psychological Society Annual Convention, Chicago, May 28, 2004.

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Orbach, Y., Lamb, M. E., & Sternberg, K. J. Developmental differences in young children’s reports of temporal sequencing information in the course of forensic interviews. Paper presented to the American Psychological Society Annual Convention, Chicago, May 28, 2004.
Cederborg, A.C., & Lamb, M. E. Disabled children exposed to crime: How does the legal system respond when they are victimized? Paper presented to the American Psychological Society Annual Convention, Chicago, May 29, 2004.
Lamb, M. E. Structured assessment in child interviewing. Invited workshop, American Bar Association-American Psychological Association National Conference on Children and the Law, Washington, June 4, 2004.
Lamb, M. E. Suggestibility and children’s recollections. Invited workshop, American Bar Association-American Psychological Association National Conference on Children and the Law, Washington, June 4, 2004.
Lamb, M. E. (Discussant) Symposium on ‘Fathers in context: Family structure, socio-economics, and cultural prescriptions,’ Head Start’s 7th National Research Conference, Washington, June 28, 2004.
Pipe, M.-E., Sternberg, K. J., Orbach, Y., & Lamb, M. E. Characteristics associated with nondisclosure of suspected abuse. Paper presented to the American Psychological Association Convention, August 2004.
Hershkowitz, I., Orbach, Y., Lamb, M. E., Horowitz, D., & Sternberg, K. J. Dynamics of forensic interviews with children who do not disclose abuse. Paper presented to the American Psychological Association Convention, August 2004.
Lamb, M. E. Helping children become informative conversationalists about their experiences of abuse. Paper presented to “Conversations and childhood: The impact of conversations on early social, emotional and cognitive development,” Cambridge UK, October 14, 2004.
Brown, D., Lamb, M. E., Pipe, M.-E., Orbach, Y., & Lewis, C. Children’s use of drawings to report touch: Implications for forensic interviews. Paper presented to the 2nd International Workshop for Young Psychologists on Evolution and Development of Cognition, Kyoto, Japan, November 12, 2004.
Lamb, M. E. Is parental leave good for gender equality? Discussion session at the GeNet ESRC Gender Equalities Network Introductory Conference, Cambridge, December 16, 2004.
Brown, D., Lamb, M. E., Pipe, M. E., Orbach, Y., & Lewis, C. “Show me on the drawing where she touched you”: Exploring children’s use of human figure drawings to report touch. Paper presented to the Society for Applied Research on Memory and Cognition, Victoria, New Zealand, January 7, 2005.

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Darvish, T., Hershkowitz, I., Lamb, M. E., & Orbach, Y. The production of investigative leads in child sexual abuse interviews using the NICHD protocol. Paper presented to the Society for Applied Research on Memory and Cognition, Victoria, New Zealand, January 7, 2005.
Brown, D., Lamb, M. E., Pipe, M. E., Orbach, Y., & Lewis, C. Using drawings with children to elicit reports of touch after short and long delays. Paper presented to the American Psychology-Law Society conference, La Jolla CA, March 4, 2005.
Thierry, K. S., Lamb, M. E., Orbach, Y. & Pipe, M. E. Developmental differences in the use of anatomical dolls during interviews of alleged sexual abuse victims. Paper presented to the American Psychology-Law Society conference, La Jolla CA, March 4, 2005.
Pipe, M. E., Lamb, M. E., & Orbach, Y. Disclosures and nondisclosures of abuse in forensic interviews. Paper presented to the American Psychology-Law Society conference, La Jolla CA, March 4, 2005.
Orbach, Y., Lamb, M. E., & Sternberg, K. J. Enhancing children’s recall using contextual cues in forensic interviews. Paper presented to the American Psychology-Law Society conference, La Jolla CA, March 4, 2005.
Trinder, L., & Lamb, M. E. Measuring up? The relationship between correlates of children’s adjustment and both family law and policy in England. Invited presentation to the Louisiana Law Review Symposium on ‘Divorce reform for the protection of children,’ Baton Rouge, Louisiana, March 16-18, 2005.
Sternberg, K. J., Guterman, E., Abbott, C. B., Baradaran, L. P., & Lamb, M. E. Effects of domestic violence on children's behavior problems and depression: A longitudinal, multiinformant perspective. Poster presented to the Society for Research in Child Development Biennial Convention, Atlanta GA, April 8, 2005.
Sternberg, K. J., Lamb, M. E., Baradaran, L. B., Abbott, C. B., & Guterman, E. Age, gender, and type of abuse differences in the effects of family violence on children's behavior problems: A mega-analysis. Poster presented to the Society for Research in Child Development Biennial Convention, Atlanta GA, April 9, 2005.
Sternberg, K. J., Guterman, E., Abbott, C. B., Lamb, M. E., & Baradaran, L. B. Contrasts between children's and mothers' reports of abuse and of the children’s behavior problems. Poster presentation to the American Psychological Society Annual Convention, Los Angeles, May 27, 2005.
Elischberger, H., Pipe, M. E., Orbach, Y., & Lamb, M. E. Do young children rely on scripts in recounting multiple instances of abuse? Poster presentation to the American Psychological Society Annual Convention, Los Angeles, May 26, 2005.

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La Rooy, D., Pipe, M. E., & Lamb, M. E. Do repeated suggestive interviews with young children increase suggestibility? Poster presentation to the American Psychological Society Annual Convention, Los Angeles, May 26, 2005.
Mendoza, M. M., Jensen, S. A., Daniels, I. M., Orbach, Y., & Lamb, M. E., Exploring children’s responses to yes/no and forced choice prompts in forensic interviews. Poster presentation to the American Psychological Society Annual Convention, Los Angeles, May 26, 2005.
Pipe, M. E., Lamb, M. E., & Orbach, Y. Factors affecting children’s disclosure: Developmental differences in secrecy and concealment in a field study. Paper presented to the American Psychological Society Annual Convention, Los Angeles, May 28, 2005.
Pipe, M. E., Lamb, M. E., & Orbach, Y. Abuse severity, threats, fears, and children’s disclosure of child sexual abuse. Paper presented to the American Psychological Society Annual Convention, Los Angeles, May 27, 2005.
Lamb, M. E. Developmentally appropriate forensic interviewing techniques. Paper presented to the Ninth International Interdisciplinary Colloquium on Law and Psychology, London, July 11-12, 2005.
Lamb, M. E. Techniques for improving the quality of information elicited in forensic interviews. Keynote address to a conference on “ Investigative Interviewing of Child Witnesses— Taking Stock and Moving Forward,” Murrayfield Stadium, Edinburgh, September 6, 2005.
Lamb, M. E. Improving the quality of parent-child contact in separating families. International Institute for the Sociology of Law Workshop on “Contact Between Children and Separated Parents”, Onati (Spain), 15 September, 2005.
Lewis, C., & Lamb, M. E. Father-child relationships and children’s development: A key to durable solutions? Presentation to the Family Justice Council’s Conference on “Durable Solutions in Family Law”, Dartington Hall, Devon, September 30 to October 2, 2005.
Lamb, M. E. The many faces of fatherhood: Some thoughts about fatherhood and immigration. Paper presented to a conference entitled “ On new shores: Understanding immigrant fathers in North America,” Syracuse, New York October 27-28, 2005.
Fouts, H. N., Lamb, M. E., & Hewlett, B. S. Developmental, cultural, and ecological features of breastfeeding among four cultures in Central Africa. Paper presented to a conference on Self, Dyad, and Group: Autonomy and Relatedness over the Lifespan, Bochum (Germany), January 5 – 7, 2006.
Lamb, M. E. The needs of children. Presentation to Ministerial conference on Fatherhood—The child’s perspective, London, January 24, 2006.

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Hershkowitz, I., & Lamb, M. E. Forensic investigations of alleged victims of abuse who have learning and mental difficulties. Paper presented to the American Psychology-Law Society conference, St. Petersburg FL, 4 March, 2006.
Cederborg, A. C., & Lamb, M. E. How does the legal system respond when children with learning difficulties are victimized? Paper presented to the American Psychology-Law Society conference, St. Petersburg FL, 4 March, 2006.
Cederborg, A. C., La Rooy, D., & Lamb, M. E. Repeated interviews about alleged abuse with children who have intellectual disabilities. Paper presented to the American PsychologyLaw Society conference, St. Petersburg FL, 4 March, 2006.
Brown, D. A., Lewis, C., Lamb, M. E., Stephens, E., & Lunn, J. Facilitating eyewitness testimony in children with learning disabilities. Paper presented to the American Psychology-Law Society conference, St. Petersburg FL, 4 March, 2006.
Brown, D.A., Lewis, C., Stephens, E., Lunn, J., & Lamb, M.E. Facilitating eyewitness testimony in children with learning disabilities. Invited presentation to the Psychology Department Seminar Series, May 2006, University of Central Lancashire, Preston, UK.
Lamb, M. E. Fathers matter! Keynote address to Family Rights Group, London, June 29, 2006.
Orbach, Y., Lamb, M. E., Sternberg, K. J., Hershkowitz, , I., & Esplin, P. W. The NICHD Investigative Interview Protocol: An introduction. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006.
Lamb, M. E., Sternberg, K. J., Orbach, Y., Aldridge, J., Bowler, L., Pearson, S., & Esplin, P. W. Enhancing the quality of investigative interviews by British police officers. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006.
Cyr, M., Lamb, M. E., Pelletier, J., Leduc, P., & Perron, A. Assessing the effectiveness of the NICHD Investigative Interview Protocol in Francophone Quebec. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006.
Larsson, A., Teoh, Y. S., Lamb, M. E., Orbach, Y., & Hershkowitz, I. Effects of physical and mental context reinstatement and cueing on children’s reports about extra-familial child abuse. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006.
LaRooy, D., Lamb, M. E., & Pipe, M. E. Is skepticism about repeated interviewing justified? What does the research say? Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006.

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Orbach, Y., Lamb, M. E., LaRooy, D., Pipe, M. E., & Stewart, H. L. A witness to abduction: A case study of repeated interviewing. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006.
Stephens, E., Brown, D. A., Lunn, J. F., Lewis, C., & Lamb, M. E. Repeated interviewing of children with learning disabilities. Paper presented to the Second International Investigative Interviewing Conference, Portsmouth UK, July 5-7, 2006.
Brown, D.A., Lewis, C., Stephens, E., Lunn, J., & Lamb, M.E. Interviewing children with learning disabilities about their experiences. Poster presented at the 26th International Congress of Applied Psychology, 16-21 July, 2006, Athens, Greece.
Lewis, C., Brown, D.A., Stephens, E., Lunn, J., & Lamb, M.E. Interviewing children with learning disabilities about their experiences. Paper presented at the 4th International Conference on Memory (ICOM-4), Sydney, 16 - 21 July, 2006.
Orbach, Y., Lamb, M. E., & Pipe, M. E. Input-free cueing techniques in forensic interviews with children. Paper presented to the 4th International Conference on Memory (ICOM-4), Sydney, July 16-21, 2006.
Kiernan, K., & Lamb, M. E. ‘Separated’ parents and child well-being. Paper presented to the International Conference on Children and Divorce, Norwich, July 24-27, 2006.
Lamb, M.E. Factors affecting children’s adjustment following parental separation. Keynote address to the International Conference on Children and Divorce, Norwich, July 24-27, 2006.
Lamb, M. E. Can children be competent informants about their experiences of abuse? Invited address to the 50th Anniversary Celebration for the Institute of Psychology, University of Goteborg, September 2006.
Lamb, M. E. Fathers matter? Keynote speaker, Greater London Family Panel Conference, Harrington Hall, London, November 18, 2006.
Brown, D. B., Lamb, M. E., Lewis, C., Pipe, M. E., & Orbach, Y. Promoting best practice in forensic interviews with children: Lab-based validations of field-based techniques. Presentation to a conference ‘Memory on Trial: The Role of Memory in the Courtroom,’ University of Otago, Dunedin, NZ, November 29 2006.
Lamb, M. E. Non-parental care and emotional development. Invited contribution to a Conference on ‘Early development, attachment, and social policy,’ University of Cambridge, December 2006.
Lamb, M. E. The first three years: Building the basis for a better life. Keynote address, What About the Children? Conference, London, March 6, 2007.

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Lamb, M. E. Can children be competent witnesses? Fifteenth Annual Warren Weiswasser Lecture, Yale University Medical Center, New Haven CT, April 25, 2007.
Lamb, M. E., Guterman, E., Abbott, C. B., & Baradaran, L. Effects of supportive and risk factors including family violence on children’s adjustment. Poster presentation to the 2007 Association for Psychological Science Annual Convention, Washington DC, May 26, 2007.
La Rooy, D., & Lamb, M. E. The effects of repeating questions in forensic interviews with children. Presentation to the British Psychological Society Cognitive Section Conference, Aberdeen, August 21, 2007.
Lamb, M. E. How does early out-of-home care affect child development? Keynote address, Fachgruppe Entwicklungspsychologie (German Society for Developmental Psychology), Heidelberg, 24 September 2007.
Brown, D. A., Lewis, C., Lamb, M. E., Pipe, M.-E., & Orbach, Y. “Show me on the drawing where she touched you”: The impact of interview technique and delay on children’s recall of bodily touch. Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008.
Teoh, Y.-S., Yang, P.-J., Lamb, M. E., & Larsson, A. Do human figure drawings help alleged victims of sexual abuse provide clearer accounts of physical contact with alleged perpetrators? Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008.
La Rooy, D. A., & Lamb, M. E. The effects of repeating questions in forensic interviews with children. Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008.
Hershkowitz, I., & Lamb, M. E. Abuse disclosure by children with mental and physical disabilities. Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008.
Hershkowitz, I., Lamb, M. E., & Orbach, Y. The effects of the NICHD Investigative Interview Protocol on assessment of credibility in child sexual abuse investigations. Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008.
Pipe, M.-E., Orbach, Y., Lamb, M. E., Abbott, C. B., Stewart, H. L., & Schindler, S. Does the introduction of an evidence-based investigative interview protocol affect case outcomes? Paper presented to the American Psychology-Law Society Convention, Jacksonville FL, March 6-8, 2008.
Lamb, M. E. Invited participant to the symposium “Big Books: selection of personal favourites from social scientists interested in policy-making for children and families.” Roundtable discussion at the British Psychological Society Annual Conference, Dublin, April 2, 2008.

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Lamb, M. E. How does early non-parental care affect child development? Invited address, Jacobs Foundation Conference on ‘Early child development and its implications for later achievement,’ Marbach Castle (Germany), April 2-4, 2008.
Yang, P. J., Kloss, A.-K., Ahnert, L. & Lamb, M. E. (2008). Learning how to read, write and calculate: Links between prerequisites and acquired skills. Paper presented to the International Society for the Study of Behavioural Development Conference, Wurzburg, July 2008.
Lamb, M. E. Helping children be competent witnesses in forensic contexts. Keynote address to the Japanese Psychological Association Annual Convention, Hokkaido, September 1921, 2008.
Lamb, M. E. Fatherhood and father-child relationships. Keynote address to Mothers, Fathers, and Caregivers: Addressing Issues of Attachment, Aggression, Foster Care and Trauma, Philadelphia Compact, Philadelphia, November 7, 2008.
Lamb, M. E. The role of fathers in child development. Interdisciplinary symposium, Centre for Psychosocial Medicine at the University of Heidelberg, Heidelberg, February 11, 2009.
Cederborg, A.-C., La Rooy, D., Danielsson, H., & Lamb, M. E. Repetition of contaminating question types when children and youths with learning disabilities are interviewed. Paper presented to the American Psychology-Law Society Convention, San Antonio TX, March 6-8, 2009.
Lamb, M. E. Fathers, mothers, and child development. Parents Matter International Conference, London March 26, 2009.
Lamb, M. E. Mothers, fathers, or parents at home and at work. Conference on Gender Inequalities in the 21st Century, Queens College, Cambridge, March 27, 2009.
Lamb, M. E. Conducting developmentally appropriate interviews of young witnesses. Plenary address, International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009.
Yang, P. J., Teoh, Y. S., & Lamb, M. E. The usefulness of human figure diagrams in clarifying children’s descriptive accounts of touches. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009.
La Rooy, D., Katz, C., Malloy, L. C., & Lamb, M. E. The effectiveness of using multiple interviews. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009.
Katz, C., Hershkowitz, I., & Lamb, M. E. Draw me what happened: Integrating drawing while interviewing alleged victims of child sexual abuse. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009.

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Hershkowitz, I., & Lamb, M. E., Orbach, Y., Katz, C., & Horowitz, D. The effect of the relationship to the suspect on children’s reports of abuse. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009.
Malloy, L. C., Katz, C., Quas, J. A., Lyon, T. D., & Lamb, M. E. When lack of motivation leads to denial: Recantation in investigative interviews with children. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009.
Katz, C., Hershkowitz, I., Malloy, L. C., Atabaki, A., Spindler, S. A. K., & Lamb, M. E. “The body talks”: Trying to understand reluctant children through their body language during investigative interviews. Paper presented to the International Investigative Interviewing Research Group Annual Conference, Teeside, April 15, 2009.
Lamb, M. E. Exploring the effects of attachment relationships on reactions to transitions. Paper presented to the US National Institute of Aging workshop on Advancing integrative Psychological Research on Adaptive and Healthy Aging, Berkeley CA, May 21, 2009.
Lamb, M. E. [Discussant and Chair]. Children’s memories and reports of touching events. Symposium presented at the Association for Psychological Science Annual Convention, San Francisco, May 23, 2009.
Pipe, M. E., Orbach, Y., Lamb, M. E., Abbott, C. B., & Stewart, H. L. Do best practice interviews with child abuse victims influence case outcomes? Poster presentation to the National Institute of Justice Research Conference, Washington DC, June 16, 2009.
Lamb, M. E. Mothers, fathers, and infants. Paper presented in honour of Rudolph Schaffer to the British Psychological Society Developmental Section Conference, Nottingham, September 9, 2009.
Yang, P. J., & Lamb, M. E. Factors affecting children's transition to school: An ecological model. Paper presented to the British Psychological Society Developmental Section Conference, Nottingham, September 9, 2009.
Lamb, M. E. Fathers, mothers, and child development. Colloquium on Strengthening Marriage and Supporting Families, Valletta (Malta), October 6-7, 2009.
Yang, P. J., Kappler, G., Lamb, M. E. & Ahnert, L. Factors affecting children's transition to school: An ecological model. Paper presented to the British Psychological Society Education Section Conference, Lancaster, November 1, 2009.
Lamb, M. E. Questioning child victims. Presentation to the CURE Conference on Children as Victims of Crime in the European Union, Stockholm, December 3-4, 2009.

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Lamb, M. E. Developmentally appropriate inter viewing: The NICHD Investigative Interview Protocol. 24th Annual San Diego International Conference on Child and Family Maltreatment, San Diego, January 26, 2010.
Lamb, M. E. The importance of parent-child relationships. Presentation to the Arizona Association of Family and Conciliation Courts, Phoenix (AZ), January 27, 2010.
Lamb, M. E. Attachment issues in family law matters. Presentation to the Bay Area Association of Family and Conciliation Courts, San Jose (CA), January 29, 2010.
Lamb, M. E. Confessions of a wondering wanderer (or wandering wonderer?). Keynote address to the Society for Cross-Cultural Research, Albuquerque (NM), February 19, 2010.
Lamb, M. E. Children’s developmental needs in the context of family break-up. London Family Justice Conference, London, March 8, 2010.
Malloy, L. C., Pipe, M. E., Lamb, M. E., Orbach, Y., & Rothenberg, D. Discussion of secrets, threats, and fears in investigative interviews with children. Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010.
Katz, C., Malloy, L. C., & Lamb, M. E. Different ways to communicate resistance: Exploring verbal and non verbal cues within investigative interviews of abused children. Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010.
Hershkowitz. I., Lamb, M. E., Orbach, Y., Katz, C., & Horowitz, D. The effect of motivational factors on the richness of children’s testimonies. Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010.
Katz, C., Lamb, M. E., & Hershkowitz, I. The Revised NICHD Protocol and its effect on the way children disclose the allegation for the first time in investigative interviews. Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010.
Malloy, L. C., Lamb, M. E., Orbach, Y., & Walker, A. G. How do interviewers use and young children respond to How/Why/How Come in investigative interviews with suspected victims of child sexual abuse? Paper presented to the American Psychology-Law Society Conference, Vancouver (BC), March 18-20, 2010.
Lamb, M. E. Forensic interview protocols. Canadian Society for the Investigation of Child Abuse, Calgary, Canada, May 3-5, 2010.
Lamb, M. E. Developmentally appropriate forensic interviewing: The NICHD Investigative Interview Protocol. Master Class to the International Investigative Interview Research Group Annual Conference, Stavern (Norway), June 20-21, 2010.

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Hershkowitz, I., Lamb, M. E., & Katz, C. Enhancing abuse disclosure by reluctant children: A test of the revised NICHD Protocol. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavern (Norway), June 22, 2010.
Malloy, L. C., Brubacher, S., & Lamb, M. E. Exploring the dynamics of forensic interviews in which children mention difficulties and worries. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavern (Norway), June 22, 2010.
Sim, M., Katz, C., Hershkowitz, I., & Lamb, M. E. Credibility assessment in credible and doubtful cases of child sexual abuse. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavern (Norway), June 22, 2010.
van Gijn, E., Berridge, Z., Katz, C., & Lamb, M. E. Characteristics of perpetrators as portrayed by alleged victims of child sexual abuse. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavern (Norway), June 22, 2010.
LaRooy, D., Lamb, M. E., & Memon, A. Forensic interviews with children in Scotland: A survey of interview practices among police. Paper presented to the International Investigative Interview Research Group Annual Conference, Stavern (Norway), June 22, 2010.
Lamb, M. E. How much can young victims tell us about sexual abuse? Keynote address to the International Academy of Sex Research, Prague, July 25, 2010.
Huang, C. Y. S., & Lamb, M. E. Acculturation and parenting styles in Chinese immigrants to the UK. Poster presentation to the British Psychological Association (Developmental Section) Annual meeting, London, September 2010.
Yang, P. J., & Lamb, M. E. Regulatory functions during the transition to new school environments. Paper presented to the British Psychological Association (Developmental Section) Annual meeting, London, September 2010.
Lamb, M. E. How much can young victims tell us about sexual abuse? Seminar on child victim interviewing, Institute for Psychology and Law at Hallym University and Korean Victimology Association, Seoul (Korea), September 8, 2010.
Lamb, M. E. Developmentally appropriate investigative interviews. Masterclass, Institute for Psychology and Law at Hallym University, Seoul (Korea), September 9, 2010.
Lamb, M. E. How much information can young children provide in forensic interviews. Public Family Law Seminars, Judicial Studies Board, Northampton, November 9, 2010 and January 11, 2011.

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Lamb, M. E. Developmentally appropriate interviews of alleged child victims. Ministry of Women and Family, Seoul (Korea), December 7-8, 2010.
Li, X., & Lamb, M. E. Bridging tradition and modernity: Father-child affection in Chinese families. Paper presented to the Society for Cross-Cultural Research Conference, Charleston (SC), February 2011.
Lamb, M. E., Hershkowitz, I., & Katz, C. The effects of enhanced support during investigative interviews on the behaviour and informativeness of reluctant children. Paper presented to the American Psychology-Law Society Conference, Miami, March 2011.
Malloy, L. C., Brubacher, S. P., & Lamb, M. E. Do expected consequences of disclosure provide insight into delayed disclosure of child sexual abuse? Paper presented to the American Psychology-Law Society Conference, Miami, March 2011.
Cederborg, A-C., Alm, C., da Silva Nises, D. L., & Lamb, M. E. Investigative interviewing of allegedly abused children: An evaluation of a new training programme for police officers in Sweden. Paper presented to the American Psychology-Law Society Conference, Miami, March 2011.
Sim, M. P. Y., & Lamb, M. E. Children’s statements about alleged sexual abuse: A linguistic profile. Paper presented to the American Psychology-Law Society Conference, Miami, March 2011.
Wachi, T., Watanabi, K., Sano, ., Otsuka, Y., Kuraishi, ., & Lamb, M. E. Police interviewing styles and confessions in Japan. Poster presentation to the American Psychology-Law Society Conference, Miami, March 2011.
Yang, P. J. & Lamb, M. E. Is school stressful? Young children’s cortisol responses to their first school environments. Poster presentation to the Society for Research in Child Development Biennial Conference, Montreal, April 2, 2011.
Huang, C-Y. S. & Lamb, M. E. What do mothers say about their parenting style? A comparison of the attitudes and behaviour of Chinese and English mothers. Poster presentation to the Society for Research in Child Development Biennial Conference, Montreal, April 1, 2011.
Lamb, M. E. The need for developmentally appropriate interviewing. Paper presented to the Second International Conference on Child Abuse and Neglect, Porto, 13 May, 2011.
Lamb, M. E. Angels, demons, dunces: Our inconsistent views of children in the legal system. Hay Festival, May 28, 2011.
Van Gijn, E., & Lamb, M. E. The modus operandi of offenders of child sexual abuse as described by police officers. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 1, 2011.

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Sim, M., & Lamb, M. E. Police interviews with juvenile suspects: Self-reported practices and beliefs. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 2, 2011.
Wachi, T., Yokota, K., Otsuka, Y., Kuraishi, H., Watanabe, K., & Lamb, M. E. Japanese police officers’ feelings and beliefs after interrogation. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 2, 2011.
Cherson, M. J., & Lamb, M. E. Rapport-building: Understanding the first eight minutes. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 2, 2011.
Malloy, L. C., Brubacher, S., & Lamb, M. E. Children discuss disclosure recipients in forensic interviews about suspected abuse. Paper presented to the International Investigative Interview Research Group Annual Conference, Dundee (Scotland), June 2, 2011.
Brubacher, S., Malloy, L. C., Roberts, K., & Lamb, M. E. Talking about repeated events: How interviewers and children organize memories of alleged multiple incidents of abuse. Paper presented to the Society for Applied Research on Memory and Cognition, New York City, June 2011.
Lamb, M. E. Advanced workshop on developmentally appropriate forensic interviewing. National Center for Children’s Advocacy Centers, Huntsville (AL), August 30, 2011.
Lamb, M. E. Child forensic interviewing. Presentation to Salt Lake County Children’s Justice Center Annual Multi-Disciplinary Team Conference, Sandy (UT), August 31, 2011.
Yang, P. J., & Lamb, M. E. Effects of temperament and attachment on young children's first school experiences. 15th European Conference on Developmental Psychology, Bergen (Norway), 24 August 2011.
Huang, C.-Y. S., & Lamb, M. E. Chinese Immigrant mothers’ acculturation, parenting beliefs and parenting behaviours. Poster presented to the BPS Developmental Psychology Section Conference, Newcastle, 7 September 2011.
Lamb, M. E. Developmentally appropriate forensic interviewing. Expert Lecture, 8th International Conference ‘Helping children-victims of crime’, Warsaw, October 25, 2011.
Lamb, M. E. Interviewing children who are reluctant to disclose abuse. 8th International Conference ‘Helping children-victims of crime’, Warsaw, October 25, 2011.
Lamb, M. E. How much can young victims tell us about sexual abuse? Public Family Law Seminars, Judicial College, Northampton, November 15, 2011, January 31, 2012, and February 28, 2012.

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Lamb, M. E. Conducting developmentally appropriate forensic interviews. Masterclass, University of Abertay Dundee and Scotland’s Child and Family Assessment Centre, Dundee, January 11-12, 2012.
Spencer, J. R., Lamb, M. E., Rook, P., Pathak, M., & Monoghan, G. (Panel). Witnesses: Trials and tribulations. Inner Temple Education and Training, Northampton, February 11, 2012.
Lamb, M. E. Can children be reliable witnesses? and Enhancing the informativeness of young victim witnesses. Law, Psychology and Human Development Distinguished Speaker Lectures, Cornell University, March 2, 2012.
Sim, P.-Y. M., & Lamb, M. E. Police perceptions of interviews with juvenile suspects. Poster presented to the American Psychology-Law Society Conference, Puerto Rico, March 2012.
Malloy, L. C., & Lamb, M. E. Reluctance and rapport building in forensic interviews with children. Poster presented to the American Psychology-Law Society Conference, Puerto Rico, March 2012.
Malloy, L. C., Brubacher, S. P., Lamb, M. E., Benton, P. How many and how often: Children’s use of number words and frequency estimations in forensic interviews. Paper presented to the American Psychology-Law Society Conference, Puerto Rico, March 2012.
Wachi, T., & Lamb, M. E. Public opinion on Japanese interrogation techniques. Paper presented to the International Investigative Interview Research Group Annual Conference, Toronto, May 23, 2012.
Malloy, L. C., Katz, C., & Lamb, M. E. Children’s requests for clarification in investigative interviews about suspected child sexual abuse. Paper presented to the American Psychological Association Annual Convention, Orlando FL, August 3, 2012.
Arseneau, C., Brubacher, S. P., Malloy, L. C., Lamb, M. E., & Roberts, K. P. Particularization of multiple incidents in forensic interviews with alleged child sex abuse victims. Poster presented at the 5e Colloque International sur les Entrevues d’Enquête/5th International Conference on Investigative Interviewing, Nicolet, QC, Canada, September 2012.

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Departmental Colloquia Department of Psychology, University of Wisconsin-Madison, September 1975. Department of Child & Family Studies, University of Wisconsin-Madison, October 1976. Department of Educational Psychology, University of Wisconsin-Madison, March 1977. Department of Psychology, Lawrence University, Appleton, WI, April 1977. Department of Psychology, University of Michigan, Ann Arbor, MI, June 1977. Department of Educational Psychology, University of Wisconsin-Madison, October 1977. Department of Psychology, University of Northern Iowa, Cedar Falls, IA, April 1978. Department of Psychology, University of Denver, Denver, CO, November 1978. Department of Psychology, University of Göteborg, Göteborg (Sweden), February 1979. School of Education, University of California -Los Angeles, March 1979. School of Behavioural Sciences, Macquarie University, Sydney (Australia), June 1979. School of Psychology, University of New South Wales, Sydney (Australia), June 1979. School of Education, University of Queensland, Brisbane (Australia), July 1979. Department of Psychology, Australian National University, Canberra (Australia), July 1979. Department of Psychology, Flinders University, Adelaide (Australia), July 1979. School of Behavioural Sciences, LaTrobe University, Melbourne (Australia), July 1979. Department of Psychology, Macquarie University, Sydney (Australia), July 1979. Department of Psychology, University of Utah, Salt Lake City, February 1980. Department of Pediatrics, University of Utah, Salt Lake City, March 1980. Department of Psychology and Social Relations, Harvard University, April 1980. Department of Psychology, Michigan State University, East Lansing, MI, October 1980. Department of Psychology (Clinical), City University of New York, New York City, December
1980. Department of Psychology, University of California at Riverside, April 1981. Department of Psychiatry, University of Utah, Salt Lake City, November 1981.

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Oranim, Center for Research on Kibbutz Education, Elroi Tivon, Israel, January 1982. School of Social Work, University of Haifa, Haifa, Israel, February 1982. Department of Pediatrics, University of Utah, Salt Lake City, September1983. Department of Psychology (Developmental Area), Stanford University, October 1983. Department of Pediatrics, Children’s Hospital, Buffalo, NY, October 1984. Department of Psychology, University of Göteborg, Göteborg (Sweden), February 1985. Research and Clinical Center for Child Development, Hokkaido University, Sapporo (Japan),
June 1985. Department of Child Development and Family Studies, University of North Carolina-
Greensboro, March 1986. Department of Applied Behavior Sciences, University of California-Davis, April 1986. Laboratory of Comparative Ethology, National Institute of Child Health and Human
Development, July 1986. Department of Pediatrics, University of Utah, December 1986. Department of Psychology, University of California-Berkeley, February 1987. Institute of Education, University of London (England), September 1987. Department of Psychology, University of Maryland, Baltimore County, October 1987. Department of Pediatrics (Division of Adolescent Medicine), University of Maryland, February
1988 Department of Psychology, University of Virginia, Charlottesville, October 1988. Institute of Psychology, University of Göteborg, Göteborg (Sweden), January 1989. Department of Psychology, Stanford University, Stanford, February 1989. Department of Applied Behavioral Sciences, University of California-Davis, February 1989. Life Cycle Research Institute, Catholic University, Washington, February 1989. Department of Theology, University of Notre Dame, South Bend, November 1989. Institute of Education, University of London (England), January 1990. Department of Psychology, Hebrew University of Jerusalem, Jerusalem (Israel), January 1990.

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Department of Human Development and Family Studies, Pennsylvania State University, February 1990.
School of Social Work, Hebrew University of Jerusalem, Jerusalem (Israel), March 1990. Department of Psychology, University of Padova, Padua (Italy), September 1990. Frank Porter Graham Child Development Center, University of North Carolina at Chapel Hill,
April 1991. Department of Psychology, Laval University, Québec City (Canada), March 1992. Department of Applied Behavioral Sciences, University of California, Davis, July 1992. Center for Family in Society, University of South Carolina, Columbia, November 1992. Department of Psychology, University of Maryland at Baltimore County, February 1993. Department of Psychology, University College of North Wales, Bangor (United Kingdom), April
1994. Department of Psychology, Laval University, Québec City (Canada), December 1994. Department of Psychology, University of (Sweden), September 1995. Laboratoire de recherche en écologie humaine et sociale, Université de Québec à Montréal,
Montréal (Canada), October 1995. Department of Psychology, University of Göteborg, Göteborg (Sweden), October 1995. Fachgebiet Entwicklungspsychologie (Department of Developmental Psychology), Universität
Osnabrück, Osnabrück (Germany), November 1995. Department of Psychology and School of Social Work, University of Utah, February 1996. Institute for Behavioral Research, University of Georgia, Athens, February 1996. Institute of Psychology, Martin-Luther Universität-Halle, Halle (Germany), October 1996. Department of Pediatrics, Georgetown University Medical Center, Washington DC, February
1997. Department of Psychology, University of Virginia, Charlottesville, April 1997. Department of Human Development, University of Maryland at College Park, December 1997. Baltimore County Child Advocacy Center, Towson MD, December 1998.

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Department of Developmental Psychology, Ruhr University of Bochum, Bochum (Germany), December 1998.
Department of Psychology, University of Delaware, Newark, February 1999. Department of Psychology, University of Lancaster, December 2003. Department of Social and Developmental Psychology, University of Cambridge, March 2004. First Annual Zangwill-Bartlett Lecture, Department of Experimental Psychology, University of
Cambridge, January 2006. Centre for Family Research, University of Cambridge, January 31, 2006. Institute of Psychiatry, Kings College London, June 15, 2006. Department of Child and Adolescent Psychiatry, Oxford University, June 20, 2006. Institute of Behavioural Sciences, University of Linkoping (Sweden), September 22, 2006. Child Study Centre, Yale University, April 24, 2007. Developmental Psychopathology Group, University of Manchester, February 20, 2008. Department of Child and Adolescent Psychiatry, Oxford University, December 2, 2008. Institute of Criminology, University of Cambridge, February 5, 2009. Department of Psychology, University of California, Davis, May 20, 2009. Department of Psychology, Arizona State University, Tempe, 28 January, 2010. National Association of Parenting Researchers, Kings College London, 26 April, 2010. Department of Developmental Psychiatry, Cambridge University, 26 January, 2011. Institute for Social and Economic Research, University of Essex, Colchester, 21 January, 2011. Institute for Applied Psychology, Lisbon, 18 February 2011. Centre d’expertise Marie-Vincent, Montreal, 30 March 2011. Department of Child and Youth Studies, University of Stockholm, 27 October 2011.

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Exhibit B

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BIBLIOGRAPHY
Table of Contents
Factors predicting children’s adjustment ..................................................................... 1
The sexual orientation of parents does not predict their children’s adjustment.......................................................................................... 2
Same sex couples can provide stable environments within which children can thrive.................................................................................. 5
Children do not need dual-gendered parenting or two parents in order to be well adjusted .......................................................................................... 6
Children raised by same-sex parents are not more likely to have same-sex orientations themselves ................................................................... 6
Sexual orientation does not affect the likelihood that people will abuse children....... 6
Non-biologically related parents are capable of raising children as effectively as biological parents..................................................................................................... 9
Bibliography
Factors predicting children’s adjustment (general sources) Bornstein, M., & Lamb, M.E. (Eds.) (2011). Developmental science (6th ed.). New York and
Hove UK: Taylor and Francis. Damon, W., & Lerner, R. (Eds.) (2006). Handbook of child psychology (4 Volumes). Hoboken,
NJ: Wiley. Golombok, S. (2000). Parenting: What really counts. Hove UK: Psychology Press. Lamb, M.E. (Ed.) (1999). Parenting and child development in non-traditional families.
Hillsdale, N. J.: Erlbaum. Lamb, M.E. (Ed.) (2010). The role of the father in child development (5th ed.). Hoboken, NJ:
Wiley.
Lamb, M. E. (2012). Mothers, fathers, families, and circumstances: Factors affecting children’s adjustment. Applied Developmental Science, 16, 98-111.

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Lerner, R. M., Lamb, M. E., & Freund, A. (Eds.) (2010). Handbook of lifespan development. Vol. 2. Social and emotional development. Hoboken, NJ: Wiley.
Smith, P. K., & Hart, C.H. (Eds.) (2010). Blackwell handbook of childhood social development. (2nd ed). Oxford: Blackwell.
Weiner, I. (Ed.) (2003). Handbook of Psychology. Hoboken, NJ: Wiley.
The sexual orientation of parents does not predict their children’s adjustment
Arranz Freijo, E., Bellido, A., Manzano, A., Martin, J. L., & Artetsxe, F. (2008). Assessment of new family structures as childrearing contexts which foster children’s psychological adjustment. Final Report. San Sebastian: University of the Basque Country.
Averett, P., Nalavany, B., & Ryan, S. (2009). An evaluation of gay/lesbian and heterosexual adoption. Adoption Quarterly, 12, 129-151.
Baetens, P., & Brewaeys, A. (2001). Lesbian couples requesting DI, an update of the knowledge with regard to lesbian mother families. Human Reproduction Update, 7(5), 512-519.
Bos, H. (2004). Parenting in planned lesbian families. Amsterdam: Vossiuspers UvA.
Bos, H. (2007). Child adjustment and parenting in planned lesbian-parent families. American Journal of Orthopsychiatry, 77, 38-48.
Bos, H. M. W., van Balen, F., & van den Boom, D. C. (2007). Child adjustment and parenting in planned lesbian-parent families. American Journal of Orthopsychiatry 77, 38-48.
Brewaeys, A., Ponjaert, I., Van Hall, E.V., & Golombok, S. (1997). Donor insemination: Child development and family functioning in lesbian mother families. Human Reproduction, 12, 1349-1359.
Brewaeys, A., & Van Hall, E. V. (1997). Lesbian motherhood: The impact on child development and family functioning. Journal of Psychosomatic Obstetrics and Gynecology, 18, 1-16.
Chan, R. W., Raboy, B., & Patterson, C. J. (1998). Psychosocial adjustment among children conceived via donor insemination by lesbian and heterosexual mothers. Child Development, 69, 443-457.
Chan, R. W., Brooks, R. C., Raboy, B., & Patterson, C. J. (1998). Division of labor among lesbian and heterosexual parents: Associations with children's adjustment. Journal of Family Psychology, 12, 402-419.

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Erich, S., Kanenberg, H., Case, K., Allen, T., & Bogdanos, T. (2009). An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents. Children and Youth Services Review, 31, 398-404.
Farr, R. H., Forssell, S. L., & Patterson, C. J. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164-178.
Gartrell, N., & Bos, H. (2010). US National Longitudinal Lesbian Family Study: Psychological adjustment of 17-year-old adolescents. Pediatrics, 126, 28-36.
Golombok, S. & Badger, S. (2010). Children raised in mother-headed families from infancy: A follow-up of children of lesbian and single heterosexual mothers in early adulthood. Human Reproduction, 25, 150-157.
Golombok, S., Perry, B., Burston, A., Murray, C., Mooney-Somers, J., Stevens, M. & Golding, J. (2003). Children with lesbian parents: A community study. Developmental Psychology, 39, 20-33.
Golombok, S., Spencer, A. & Rutter, M. (1983). Children in lesbian and single parent households: Psychosexual and psychiatric appraisal. Journal of Child Psychology & Psychiatry, 24, 551-572.
Golombok, S. & Tasker, F. (1996). Do parents influence the sexual orientation of their children? Findings from a longitudinal study of lesbian families. Developmental Psychology, 32, 3-11.
Golombok, S. & Tasker, F. (2010). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (5th ed.). Hoboken, NJ: Wiley.
Golombok, S., Tasker, F. & Murray, C. (1997). Children raised in fatherless families from infancy: Family relationships and the socioemotional development of children of lesbian and single heterosexual mothers. Journal of Child Psychology & Psychiatry. 38, 783-792.
Lamb, M. E. (2012). Mothers, fathers, families, and circumstances: Factors affecting children’s adjustment. Applied Developmental Science, 16, 98-111.
MacCallum, F. & Golombok, S. (2004). Children raised in fatherless families from infancy: A follow-up of children of lesbian and single heterosexual mothers at early adolescence. Journal of Child Psychology and Psychiatry, 45, 1407-1419.
Patterson, C. J. (1995). Sexual orientation and human development: An overview. Developmental Psychology, 31, 3-11.
Patterson, C. J. (1995). Families of the lesbian baby boom: Parents' division of labor and children's adjustment. Developmental Psychology, 31, 115-123.

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Patterson, C. J. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and Gays in Couples and Families: A Handbook for Therapists (pp. 420-437). San Francisco: Jossey-Bass.
Patterson, C. J. (1997). Children of lesbian and gay parents. In T. Ollendick & R. Prinz (Eds.), Advances in clinical child psychology (Vol. 19; pp. 235-282). New York: Plenum Press.
Patterson, C. J. (2000). Sexual orientation and family life: A decade review. Journal of Marriage and the Family, 62, 1052-1069.
Patterson, C. J. (2001). Families of the lesbian baby boom: Maternal mental health and child adjustment. Journal of Gay and Lesbian Psychotherapy, 4, 91-107.
Patterson, C. J. (2006). Children of lesbian and gay parents. Current Directions in Psychological Science, 15, 241-244.
Patterson, C. J., & Chan, R. W. (1999). Families headed by lesbian and gay parents. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development (2d ed.). Hillsdale, N. J.: Erlbaum.
Patterson, C. J., Fulcher, M., & Wainright, J. (2002). Children of lesbian and gay parents: Research, law, and policy. In B. L. Bottoms, M. B. Kovera, and B. D. McAuliff (Eds.), Children, social science and the law (pp. 176-199). New York: Cambridge University Press.
Patterson, C. J., Hurt, S., & Mason, C. D. (1998). Families of the lesbian baby boom: Children's contacts with grandparents and other adults. American Journal of Orthopsychiatry, 68, 390-399.
Patterson, C. J., & Redding, R. (1996). Lesbian and gay families with children: Public policy implications of social science research. Journal of Social Issues, 52, 29-50.
Patterson, C. J., & Wainright, J. (2011). Adolescents with same-sex parents: Findings from the National Longitudinal Study of Adolescent Health. In D. Brodzinsky & A. Pertman (Eds.), Adoption by Lesbians and Gay Men: A New Dimension in Family Diversity. New York: Oxford University Press.
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Tasker, F. (2005). Lesbian mothers, gay fathers, and their children: A review. Developmental & Behavioral Pediatrics, 26, 224-40.

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Tasker, F. & Golombok, S. (1997) Growing up in a Lesbian Family. Guilford Press, New York.
Vanfraussen, K., Ponjaert-Kristoffersen, I., & Brewaeys, A. (2002). What does it mean for youngsters to grow up in a lesbian family created by means of donor insemination? Journal of Reproductive & Infant Psychology, 20, 237-252.
Vanfraussen, K., Kristoffersen, I., & Brewaeys, A. (2003). Family functioning in lesbian families created by donor insemination. American Journal of Orthopsychiatry, 73, 7890.
Wainright, J.L. & Patterson, C.J. (2006). Delinquency, victimization, and substance use among adolescents with female same-sex parents. Journal of Family Psychology, 20, 526-530.
Wainright, J. L., & Patterson, C. J. (2008). Peer relations among adolescents with female samesex parents. Developmental Psychology, 44, 117-126.
Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment, school outcomes, and romantic relationships of adolescents with same-sex parents. Child Development, 75, 1886-1898.
Same sex couples can provide stable environments within which children can thrive
Erich, S., Kanenberg, H., Case, K., Allen, T., & Bogdanos, T. (2009). An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents. Children and Youth Services Review, 31, 398-404.
Kurdek L.A. (2004). Are gay and lesbian cohabiting families really different from heterosexual married couples? Journal of Marriage and Family, 66, 880-900.
Kurdek L.A. (2006). What do we know about gay and lesbian couples? Current Directions in Psychological Science, 14, 251-254.
Kurdek L.A. (2006). Differences between partners from heterosexual, gay and lesbian couples. Journal of Marriage and Family, 68, 1-20.
Kurdek, L. A. (2003). Differences between gay and lesbian cohabiting couples. Journal of Social and Personal Relationships, 20, 411-436.
Kurdek, L. A. (2006). The nature and correlates of deterrents to leaving a relationship. Personal Relationships, 13, 521-535.
Kurdek, L. A. (2007). The allocation of household labor by partners in gay and lesbian couples. Journal of Family Issues, 28, 132-148.
Kurdek, L. A. (2007). Avoidance motivation and relationship commitment in heterosexual, Gay male, and lesbian partners. Personal Relationships, 13, 521-535.

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Kurdek, L. A. (2008). Change in relationship quality for partners from lesbian, gay male, and heterosexual couples. Journal of Family Psychology, 22, 701-711.
Kurdek, L. A. (2009). Assessing the health of a dyadic relationship in heterosexual and samesex partners. Personal Relationships, 16, 117-127.
Patterson, C. J. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and gays in couples and families: A handbook for therapists (pp. 420-437). San Francisco: Jossey-Bass.
Children do not need dual-gendered parenting or two parents in order to be well adjusted
Kiernan, K., E., & Mensah, F. K. (2010). Unmarried parenthood, family trajectories, parent and child well-being. In K. Hansen, H. Joshi, & S. Dex (Eds.), Children of the 21st century: From birth to age 5 (pp. 77-94). London: Policy Press.
Lamb, M. E. (2002). Noncustodial fathers and their children. In C.S. Tamis-LeMonda & N.Cabrera (Eds.), Handbook of father involvement: Multidisciplinary perspectives (pp. 169-184). Mahwah, NJ: Erlbaum.
Lamb, M. E. (2002). Placing children’s interests first: Developmentally appropriate parenting plans. The Virginia Journal of Social Policy and the Law, 10, 98-119.
Lamb, M. E., & Kelly, J. B. (2009). Improving the quality of parent-child contact in separating families with infants and young children: Empirical research foundations. In R. M. Galatzer-Levy, L. Kraus, & J. Galatzer-Levy (Eds.), The scientific basis of child custody decisions (2d ed.; pp. 187-214). Hoboken, NJ: Wiley.
Children raised by same-sex parents are not more likely to have same-sex orientations themselves
Golombok, S. & Badger, S. (2010). Children raised in mother-headed families from infancy: A follow-up of children of lesbian and single heterosexual mothers in early adulthood. Human Reproduction, 25, 150-157.
Tasker, F. L. & Golombok, S. (1997). Growing up in a lesbian family: Effects on child development. New York: Guilford Press.
Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment, school outcomes, and romantic relationships of adolescents with same-sex parents. Child Development, 75, 1886-1898.
Sexual orientation does not affect the likelihood that people will abuse children
Bellamy, C. (2009). A national study of male involvement among families in contact with the child welfare system. Child Maltreatment 14, 255-262.

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Belsky, J. (1993). Etiology of child maltreatment: A developmental-ecological analysis. Psychological Bulletin, 114, 413-434.
Berger, L. M., Paxson, C., & Waldfogel, J. (2009). Mothers, men, and child protective services involvement. Child Maltreatment, 14. 263-276.
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Cawson, P., Wattam, C., Brooker, S., & Kelly, G. (2000). Child maltreatment in the United Kingdom. London: NSPCC.
Chand, A. & Thoburn, J. (2006). Research review: Child protection referrals and minority ethnic children and families. Child and Family Social Work, 11, 368-377.
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Coulton, C.J., Crampton, D.S., Irwin, M., Spilsbury, J.C. & Korbin, J.E. (2007). How neighborhoods influence child maltreatment: A review of the literature and alternative pathways. Child Abuse & Neglect, 31, 1117-1142.
Coulton, C.J., Korbin, J.E., & Su, M. (1999). Neighborhoods and child maltreatment: A multilevel study. Child Abuse & Neglect, 11, 1019-1040.
Coulton, C.J., Korbin, J.E., Su, M., & Chow, J. (1995). Community level factors and child maltreatment rates. Child Development, 66, 1262-1276.
Finkelhor, D., Ormrod, R., Turner, H., & Hamby, S.L. (2005). The victimization of children and youth: A comprehensive, national survey. Child Maltreatment, 10, 5-25.
Freisthler, B., Merritt, D.H., & LaScala, E.A. (2006). Understanding the ecology of child maltreatment: a review of the literature and directions for future research. Child Maltreatment, 11, 263-280.
Garbarino, J. & Crouter, A. (1978). Defining the community context for parent-child relations: The correlates of child maltreatment. Child Development, 49, 604-616.
Garbarino, J., & Sherman, D. (1980). High-risk neighborhoods and high-risk families: The human ecology of child maltreatment. Child Development, 51, 188-198.
Guterman, N. B., Lee, Y., Lee, S. J. Waldfogel, J., & Rathouz, P. J. (2009).. Fathers and maternal risk for physical child abuse. Child Maltreatment, 14, 277-290.

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Hussey, J.M., Chang, J.J., & Kotch, J.B. (2006). Child maltreatment in the United States: Prevalence, risk factors, and adolescent health consequences. Pediatrics, 118, 933-942.
Korbin, J.E., Coulton, C.J., Chard, S., Platt-Houston and Su, M. (1998). Impoverishment and child maltreatment in African American and European American neighborhoods. Development and Psychopathology, 10, 215-233.
Molnar, B. E., Buka, S. L., Brennan, R. T., Holton, J. K., & Earls, F. (2003). A multilevel study of neighborhoods and parent-to-child physical aggression: Results from the project on human development in Chicago neighborhoods. Child Maltreatment, 8, 8497.
Salisbury, E., Henning, K., & Holdford, R. (2009). Fathering by partner-abusive men: Attitudes on children’s exposure to interparental conflict and risk factors for child abuse. Child Maltreatment, 14, 232-242.
Scher, C.D., Forde, D.R., McQuaid, J.R., & Stein, M.B. (2004). Prevalence and demographic correlates of childhood maltreatment in an adult community sample. Child Abuse & Neglect, 23, 167-180.
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Sedlak, A.J. (2001). A history of the National Incidence Study of Child Abuse and Neglect. The Children’s Bureau, Administration of Children and Families, U.S. Department of Health and Human Services, Washington, D.C. Viewed online at the NIS-4 website May 21, 2009: https://www.nis4.org/NIS_History.pdf.
Sidebotham, P.D., & ALSPAC Study Team. (2001). Child maltreatment in the “Children of the nineties”: A longitudinal study of parental risk factors. Child Abuse & Neglect, 25, 1177-1200.
Sidebotham, P.D., Heron, J., Golding, J., & ALSPAC Study Team. (2002). Child maltreatment in the “Children of the nineties”: Deprivation, class and social networks in a UK sample. Child Abuse & Neglect, 26, 1243-1259.
Vogeltanz, N.D., Wilsnack, S.C., Harris, T.R., Wilsnack, R.W., Wonderlich, S.A., & Kristjanson, A.F. (1999). Prevalence and risk factors for childhood sexual abuse in women: National survey findings. Child Abuse & Neglect, 23, 579-592.
Wu, S.S., Ma, C., Carter, R.L., Ariet, M., Feaver, E.A., Resnick, M.B., & Roth, J. (2004). Risk factors for infant maltreatment: a population-based study. Child Abuse & Neglect, 23, 1253-1264.

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Non-biologically related parents are capable of raising children as effectively as biological parents
Brodzinsky, D. & Palacios, J. (Eds.) (2005). Psychological issues in adoption: Research and practice. London: Praeger.
Golombok, S., Cook, R., Bish, A., & Murray, C. (1995). Families created by the new reproductive technologies: Quality of parenting and social and emotional development of the child. Child Development, 66, 285-298.
Golombok, S., Jadva, V., Lycett, E., Murray, C., & MacCallum, F. (2005). Families created by gamete donation: follow-up at age 2. Human Reproduction. 20, 286-293.
Golombok, S., Lycett, E., MacCallum, F., Jadva, V., Murray, C., Rust, J. Abdalla, H., Jenkins, J., & Margara, R. (2004). Parenting infants conceived by gamete donation. Journal of Family Psychology. 18, 443-452.
Golombok, S., MacCallum, Goodman, E., & Rutter, M. (2002). Families with children conceived by donor insemination: A follow up at age twelve. Child Development, 73, 952-968.
Golombok, S., Murray, C., Brinsden, P., & Abdalla, H. (1999). Social versus biological parenting: Family functioning and the socioemotional development of children conceived by egg or sperm donation. Journal of Child Psychology and Psychiatry, 40, 519-527.
Golombok, S., Murray, C., Jadva, V., Lycett, E., MacCallum, F., & Rust, J. (2006). Nongenetic and non-gestational parenthood: consequences for parent-child relationships and the psychological well-being of mothers, fathers and children at age 3. Human Reproduction. 21, 1918-1924.
Jadva, V., Freeman, T., Kramer, W. & Golombok, S. (2009). The experiences of adolescents and adults conceived by sperm donation: Comparisons by age of disclosure and family type. Human Reproduction, 24, 1909-1919.
Juffer, F., & van IJzendoorn, M. H. (2007). Adoptees do not lack self-esteem: A meta-analysis of studies of self-esteem of transracial, international, and domestic adoptees. Psychological Bulletin, 133, 1067-1083.
Lansford, J. E., Ceballo, R., Abbey, A., & Stewart, A. J. (2001). Does family structure matter? A comparison of adoptive, two-parent biological, single mother, stepfather, and stepmother households. Journal of Marriage and the Family, 63, 840-851.
MacCullum, F., & Keeley, S. (2007). Embryo donation families: A follow-up in middle childhood. Journal of Family Psychology, 22, 799-808.
Palacios, J., & Brodzinsky, D. M. (2010). Adoption research: Trends, topics and outcomes. International Journal of Behavioural Development, 34, 270–284.

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Stams, G.J.J. M., Juffer, F., & van IJzendoorn, M. H. (2002). Maternal sensitivity, infant attachment, and temperament in early childhood predict adjustment to middle childhood: The case of adopted children and their biologically unrelated parents. Developmental Psychology, 38, 806-821.
Van IJzendoorn, M. H., & Juffer, F. (2006). Adoption as intervention: Meta-analytic evidence for massive catch-up and plasticity in physical, socio-emotional, and cognitive development. Journal of Child Psychology and Psychiatry, 47, 1228-1245.
Van IJzendoorn, M. H., Juffer, F., & Klein Poelhuis, C. W. (2005). Adoption and cognitive development: A meta-analytic comparison of adopted and non-adopted children’s IQ and school performance. Psychological Bulletin, 131, 301-306.

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1

CERTIFICATE OF SERVICE

2 I hereby certify that I have electronically filed the foregoing with the Clerk of the Court
3 for the United States District Court, District of Nevada by using the CM/ECF system on
4 September 10, 2012. All participants in the case are registered CM/ECF users, and will be
5 served by the CM/ECF system.
6

7

By: /s/ Sklar Toy

.

8

Sklar Toy

3325 Wilshire Boulevard, Suite 1300

9

Los Angeles, CA 90010

10

11

12

13

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15

16

17

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1

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

2

BEFORE THE HONORABLE ROBERT C. JONES, CHIEF DISTRICT JUDGE

---o0o---

3

4 BEVERLY SEVCIK, et al.,

:

:

5

Plaintiffs,

:

: No. 2:12-CV-578-RCJ-PAL

6

-vs-

:

: August 10, 2012

7 BRIAN SANDOVAL, etc., et

:

al.,

: Las Vegas, Nevada

8

:

Defendants.

:

9

:

and

:

10

:

COALITION FOR THE

:

11 PROTECTION OF MARRIAGE,

:

:

12

:

Intervenor-Defendant. :

13

:

14

TRANSCRIPT OF MOTION HEARING

15 APPEARANCES:

16 FOR THE PLAINTIFFS: 17

KELLY H. DOVE Attorney at Law Las Vegas, Nevada

18

TARA BORELLI

Attorney at Law

19

Los Angeles, California

20

DAWN SESTITO

Attorney at Law

21

Los Angeles, California

22 FOR THE DEFENDANT: 23

C. WAYNE HOWLE Deputy Attorney General Carson City, Nevada

24

25 (Appearances continue on next page.)

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1 APPEARANCES (Continued):

2

3 FOR DEFENDANT GLOVER: 4

RANDALL R. MUNN Deputy District Attorney Carson City, Nevada

5 FOR DEFENDANT ALBA: 6

MICHAEL L. FOLEY Deputy District Attorney Carson City, Nevada

7 FOR DEFENDANT HARVEY: 8

HERBERT B. KAPLAN Deputy District Attorney Reno, Nevada

9 FOR INTERVENORDEFENDANT:
10

MONTE N. STEWART Attorney at Law Boise, Idaho

11

D. CHRIS ALBRIGHT

Attorney at Law

12

Las Vegas, Nevada

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

LAS VEGAS, NEVADA, FRIDAY, AUGUST 10, 2012, 9:01 A.M.

2

---o0o---

3

4

THE COURT: Let's call Sevcik versus Sandoval,

5 please, civil case. You may come forward and take a moment.

6 I'll be calling for appearances in just a moment.

7

Appearances please, plaintiff.

8

MS. DOVE: Good morning, your Honor. Kelly Dove

9 with Snell & Wilmer for plaintiffs.

10

MS. BORELLI: Good morning, your Honor. Tara

11 Borelli with Lambda Legal for the plaintiffs.

12

We are also joined in the courtroom today by a

13 number of the plaintiffs, including our lead couple Beverly

14 Sevcik and Mary Baranovich.

15

THE COURT: Thank you.

16

MS. SESTITO: Dawn Sestito with O'Melveny &

17 Myers also for plaintiffs.

18

THE COURT: Thank you.

19

MR. HOWLE: Good morning, your Honor. I'm Wayne

20 Howle, State Solicitor General, here for the State of Nevada

21 and the government.

22

MR. MUNN: Good morning, your Honor. Randall

23 Munn, Carson City District Attorney's office, on behalf of

24 Clerk Recorder Alan Glover.

25

MR. STEWART: Monte Stewart on behalf of movant

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1 and proposed intervenor-defendant Coalition For the Protection

2 of Marriage.

3

MR. FOLEY: Michael Foley for Diane Alba, the

4 county clerk here.

5

MR. ALBRIGHT: Chris Albright, local counsel for

6 the Coalition movement.

7

MR. KAPLAN: Your Honor, Herbert Kaplan, Washoe

8 County Deputy District Attorney on behalf of Amy Harvey.

9

THE COURT: Thank you.

10

We have several items on the docket. I would

11 propose that we take up first the motion to intervene, number

12 30, and then address the motions to dismiss, 32 and 33.

13

Let's take up first, please, the motion to

14 intervene.

15

MS. SESTITO: Your Honor, if I may just be heard

16 for a moment, just before we were called into the courtroom

17 the parties were discussing some issues vis-a-vis scheduling

18 and the motion to intervene, and respectfully I think that

19 maybe if we had a few more minutes to discuss those, we might

20 be able to resolve some of the motions that are pending right

21 now in particular the intervention motion.

22

THE COURT: I'm sorry, I can't give you

23 continuance. I've got a full morning full of criminal and

24 civil matters.

25

MS. SESTITO: If we could just be heard maybe

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1 after some of the other matters this morning, maybe ten

2 minutes, so maybe if another matter was heard now, we could--

3

MR. STEWART: I believe we're asking for ten

4 minutes, your Honor.

5

THE COURT: That shortens your time on the other

6 arguments with all due respect. It's out of your time frame,

7 not mine. If you want 60 seconds there in front of the podium

8 to discuss between yourselves, that's no problem.

9

MR. STEWART: Thirty seconds. Actually, we do

10 need the 60 seconds.

11

(Discussion held off the record.)

12

THE COURT: And, frankly, some of the questions

13 I would be asking on the motions to dismiss would change

14 depending on whether this intervention motion is granted or

15 not, so that's why I need to resolve it first.

16

MR. STEWART: I'm going to attempt, your Honor,

17 with the aid of counsel where I stumble to articulate the

18 agreement reached between all counsel with respect to the

19 pending motions.

20

They are as follows: Number one, the plaintiffs

21 withdraw their objection to the intervention of my client, The

22 Coalition for the Protection of Marriage.

23

Number two, the parties who have filed the pending

24 motions to dismiss based upon Baker against Nelson, that is,

25 Governor Sandoval through the Attorney General's office, and

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1 Alan Glover, Clerk Alan Glover through Mr. Munn, agree with

2 the plaintiffs and myself that the ruling on those pending

3 motions to dismiss, both the argument and the subsequent

4 ruling, will be deferred until the time of argument, and

5 ruling on cross-motions -- let me see if I can get this

6 correct -- initial prediscovery cross-motions for summary

7 judgment with the briefing schedule to be governed by the

8 proposed scheduling order, although I think we had better pick

9 our trigger dates and make sure --

10

THE COURT: What are the scheduling order dates?

11

MS. BORELLI: Your Honor, we had proposed

12 21 days from resolution of the motion to dismiss or the motion

13 for intervention, whichever was later in time.

14

MR. STEWART: Shall we just go 30 days? Thirty,

15 60 --

16

THE COURT: Here's why the discussion is

17 important. These would have been the questions I would be

18 asking assuming the motion is granted, that is, whether you

19 wanted me to go forward on the motion to dismiss or open it to

20 a full merits discussion on the law, of course, prediscovery,

21 motion for dismissal or motion for summary judgment. That's

22 the nature of Judge Kay's ruling. I've read it, you attached

23 it, I appreciate that.

24

Judge Kay, of course, addresses the Baker issue

25 initially. That's an issue that talks about -- or that issue

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1 is whether or not the Supreme Court has already spoken on

2 equal protection and due process violations for this type of

3 alleged discrimination. That's the motion to dismiss, and

4 Judge Kay, of course, ruled on that question.

5

But he also went on in the context of summary

6 judgment, in my opinion, really, in the context of a motion to

7 dismiss, in essence, it's a ruling on the law, as to the

8 merits. Assuming that Baker does not find, then the question

9 is on the merits and that's what Judge Kay addressed.

10

So that was going to be my first immediate question,

11 would you not like to address all of that. Do you want me to

12 go ahead just on the Baker question first.

13

So, again, I'll repeat that same question, does your

14 discussion or stipulation contemplate a -- perhaps not a

15 fuller briefing on Baker, but the addition of the merits

16 discussion on the law, prediscovery, summary judgment fashion,

17 so that we can resolve those issues as well. Is that what

18 you're talking about?

19

MR. STEWART: Exactly right, your Honor, and we

20 believe that there are strong prudential reasons why Judge

21 Kay's pattern should be followed in this court. The -- and I

22 think that with the stipulation we are now trying to

23 articulate, we are accomplishing that.

24

The only task left is to make sure that we, counsel,

25 are in agreement regarding the briefing schedule, and I

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1 believe we are talking 40 days to opening briefs, 60 days to

2 responsive briefs and --

3

MS. BORELLI: I think the scheduling order had

4 30 for reply briefs.

5

THE COURT: Normally that would be two weeks.

6 So I'll let you extend that for 20 days if you wish.

7

MR. STEWART: Yes, 30, 60, 20.

8

THE COURT: Okay. Now, before I respond to

9 that, is there any further need felt for briefing on Baker, or

10 will this address simply the merits issues to the extent we go

11 beyond Baker?

12

MR. STEWART: If I'm a party, and I don't know

13 that I am yet --

14

THE COURT: You do want to address Baker as

15 well?

16

MR. STEWART: I just want to say this. I

17 mentioned the prudential reasons. One of the Baker issues is

18 simply are the issues identical between what was presented to

19 the Supreme Court in 1972 and what is being presented to you

20 in 2012.

21

THE COURT: Correct. And as I understand the

22 basic argument, the basic issue is --

23

MR. STEWART: Yes, but, Judge --

24

THE COURT: -- plaintiffs contend that there is

25 a distinction because Baker only considered gender equal

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1 protection issues, not sexual orientation. But you would

2 point out or the other side would point out that sexual

3 orientation was a part of the Baker state supreme court

4 decision as well. That's the basic issue.

5

MR. STEWART: Yes, and the prudential

6 consideration is this. Judge Kay had the benefit when he was

7 ruling on Baker of having had really all of the issues fully

8 ventilated through the cross-motions for summary judgment.

9

THE COURT: So that he could see, he could

10 measure Baker and determine whether or not it involved those

11 issues.

12

MR. STEWART: And I think there will be further

13 illumination, and that further illumination may be congenial

14 to the plaintiffs, it may be --

15

THE COURT: That's an answer to my question

16 then. You do intend to be able to add further comment on

17 Baker as well as the merits issues.

18

MR. STEWART: I think there's no intent to

19 preclude that, your Honor.

20

THE COURT: Okay. So 30, 30 more days, and

21 20 days, and we'll put those into an order with definite date.

22

MR. STEWART: No, the important date -- the

23 important timeframe was actually the response date of 60 days,

24 and we could let plaintiffs' counsel present to you the

25 reasons for that.

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1

THE COURT: You lost me.

2

MR. STEWART: All I can say is I'm in agreement

3 with it.

4

THE COURT: I don't understand.

5

MR. STEWART: Thirty days from now for opening

6 briefs.

7

THE COURT: Right.

8

MR. STEWART: Sixty days to response briefs,

9 20 days to reply briefs.

10

THE COURT: Now, who's filing the initial brief?

11

MR. STEWART: It's anticipated that both sides

12 will file.

13

THE COURT: In blind.

14

MR. STEWART: Yes, in blind.

15

THE COURT: Okay. I will only give you one

16 chance to respond then. There won't any reply briefs. There

17 will be an in-blind filed in 30 days, 30 days later a

18 responsive brief.

19

MR. STEWART: Sixty, your Honor.

20

THE COURT: I'm sorry, 30 days later so a total

21 of 60 days out.

22

MR. STEWART: No, at 90 days out.

23

THE COURT: Oh.

24

MS. BORELLI: And, your Honor, the reason that

25 we've proposed -- actually, if I may jump back for just a

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1 moment, just to make sure the record is clear, there are two

2 additional significant independent reasons that we think Baker

3 does not control aside from whether sexual orientation was

4 raised, just to make that clear.

5

With respect to the 60-day reply, or, I'm sorry,

6 summary judgment opposition deadline, what that contemplates

7 is incorporating into it the local rule for disclosure of

8 experts.

9

We would intend to move your Honor with supporting

10 expert testimony. That 60-day period allows both sides then

11 to take any necessary depositions or discovery -

12

THE COURT: Expert testimony on what?

13

MS. BORELLI: It would be both the level of

14 review, your Honor, that's appropriate for sexual orientation

15 classifications and also governmental interests.

16

THE COURT: On the first one I don't think

17 expert testimony is appropriate. You're just having the

18 expert tell me what the law is? You're supposed to tell me

19 what the law is and I'm supposed decide it subject to the

20 Ninth Circuit's review.

21

MS. BORELLI: Your Honor, there are facts that

22 have aided a number of courts and that we think may aid this

23 Court --

24

THE COURT: So, for example, on the second

25 issue, governmental interest, that is, whether or not in the

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1 institution of marriage under the traditional definition is

2 still appropriately supported by governmental interests,

3 right?

4

MS. BORELLI: That's correct.

5

THE COURT: In my mind, it's an absurd

6 proposition for Judge Walker to presume to take expert

7 testimony on the institutional support of marriage under the

8 traditional definition. That's just incredible to me, and I'm

9 not sure I can see how experts would help me.

10

For example, just to explain a little bit more where

11 I'm coming from, I think it was Justice Marshall that said

12 experience is the life of the law.

13

You know, in our country we have a bifurcated system

14 of law development. One is just like the Roman statute and

15 the civil system, we believe legislatures and/or kings should

16 be allowed to change the law immediately.

17

The other method, however, that we largely follow is

18 the common law. It's developed case by case over centuries,

19 if you will, and so the institution of marriage is one of the

20 recognized areas of the common law, marriage, probate,

21 welfare, contract, tort, I could name them all off, all the

22 classes that you took in law school, all have very strong

23 components of common law development over not just a few

24 decades, centuries, in the case of the marriage institution

25 going back over hundreds of years. That's the institutional

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1 support.

2

So to take an expert's testimony, how could I

3 presume -- in light of Justice Marshall's comment, how could I

4 presume in a month, two months, two years, to take

5 consideration of all those strains of support and current

6 trends, how could I take that into account in making a

7 decision on whether the underpinnings of the traditional

8 definition are still this? How could I do that? How could I

9 presume to do that, or how could I presume to take that from

10 an expert witness?

11

Would this be a sociologist, a legal scholar? Would

12 this be a person who statistically summarizes all of the cases

13 over the last 500 years and the trends therein? Would this be

14 a -- a Lexis or a Westlaw that summarizes the principles,

15 headnote principles and trends over the last 100 years versus

16 the prior 500 years?

17

What kind of an expert would help me in that

18 governmental issue? Would it be an expert who testifies to me

19 as to the motivations of the people who voted yes for the

20 constitutional amendment? Where would there be any help from

21 an expert?

22

MS. BORELLI: Well, your Honor, we would urge

23 the Court to look actually at what Judge Kay did. He, in

24 fact, permitted us, as the parties did, a sufficient expert

25 testimony on several grounds. So, for example, with respect

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1 to the heightened scrutiny factors, there is a question about

2 the history of discrimination against gay people, the relative

3 political powerlessness and other related concepts where --

4

THE COURT: That just goes right over my head.

5 I don't understand how one expert, 200 experts could tell me

6 about -- in other words, they're summarizing the

7 discrimination against gay people over the last hundred years,

8 is that what they're doing?

9

MS. BORELLI: There is, in fact, expert

10 testimony that does describe the history of discrimination

11 against gay people since they came to be recognized in this

12 society. That's just one example, your Honor.

13

THE COURT: You would be asking me to sit as a

14 legislature in deciding -- or as a polling, and even then my

15 expert that I would have here from polling of the United

16 States thoughts and processes would be such a narrow

17 statistical -- in my background of statistics, it wouldn't

18 even make any sense. How could I rely on an expert?

19

You know, we have some acknowledged areas where we

20 take expert testimony on discrimination issues, for example, a

21 state in its hiring practices, or a local fire department, or

22 a local school district, or a local group of realtors, that's

23 pretty broad, in housing have maintained a practice of

24 discrimination, and when we are looking at statistical

25 analysis in practice, not actual intent to discriminate, but

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1 actually as a result of statistics, we do have some recognized

2 areas where we take statistics to consider that.

3

This area you're talking about is so broad it's

4 across the entire United States. You're asking them to

5 summarize thousands of incidences. This smacks to me of the

6 Wal-Mart question and the class-action question.

7

You know, could you successfully bring a

8 class-action discrimination case under the Wal-Mart standard

9 based upon the statistics of discrimination in the State of

10 Nevada or nationally? Could you do that? I don't think so.

11

MS. BORELLI: Your Honor, I think that's a

12 different question with different issues involved in a case

13 that is helpful for this Court to know. Obviously this expert

14 testimony would be introduced here, the Court could give it

15 any weight the Court thought was appropriate or not.

16

These experts on these subjects that we would intend

17 to use have introduced testimony in a wide range of cases

18 across the country including some that were relied on by the

19 defendants in their Baker versus Nelson briefing.

20

THE COURT: Well, I think my only response can

21 be put whatever you want into the moving papers. I don't know

22 that I'm going to hear from experts, nor do I know that I will

23 admit experts on these questions which appear to me to be

24 pretty much questions of law for which expert testimony would

25 be -- not only useless, it would be an absurd inquiry. So I

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1 think my response is put whatever you feel you need to.

2

These will be cross-motions for summary judgment on

3 the merits in addition to addressing Baker. You do have --

4 unless you have permission of the Court, you do have the

5 30-page limit, I remind you, unless you have some stipulation

6 for something else. Please don't seek a stipulation for 500

7 pages, it's just not going to happen.

8

As Judge McKibben has always said, you know, I'll

9 read the first 30 pages and then I'll simply put my glasses

10 down. So I just remind you of that in seeking permission or

11 stipulation to go beyond 30 pages.

12

I can image that you may need to go beyond 30 pages

13 if you're arguing some of these other issues, but be

14 circumspect, please.

15

You'll have 30 days to file those initial motions,

16 and then you'll have 30 days to respond, and that's where

17 we'll leave it preparatory for the oral argument.

18

If you feel the need because of a response or

19 something raised brand-new in the response for the first time,

20 then, of course, you can ask for permission and the Court will

21 undoubtedly grant you permission to file a reply for

22 newly-raised issues in a response.

23

All of you know you're not supposed to do that, you

24 file and you put everything you think is appropriate into the

25 motion. The response is not to reiterate your arguments,

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1 simply to respond to the other parties' arguments, and

2 citations.

3

So if in the response for the first time a party is

4 raising something anew, of course, ask permission and I'll

5 give you permission to reply to that item.

6

So 30 days and 30 days to respond.

7

MS. BORELLI: Your Honor?

8

THE COURT: Please.

9

(Discussion held off the record.)

10

MR. STEWART: In fairness to all parties to the

11 bargain, it is true that the 60 days between --

12

THE COURT: I'm not party to the bargain.

13

MR. STEWART: I understand, your Honor, and I

14 respect --

15

THE COURT: I'm the one who sets and controls my

16 own calendar.

17

MR. STEWART: All I was going to say is that was

18 a material part of the bargain, so I would think that if that

19 doesn't obtain, there's a question mark about whether the

20 bargain obtains, but that's plaintiffs' call.

21

THE COURT: I'm not even interested in the

22 bargain.

23

Can you comply with the response within 30 days? Do

24 you want to ask for more time?

25

Motion within 30 days, you've already briefed the

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1 Baker issue. You may feel the need to add to that, 30 days to

2 add -- make your motions, cross-motions, and then 30 days to

3 respond.

4

Do you need more time beyond 30 days to respond?

5

MS. BORELLI: Your Honor, we may if we are

6 deposing each other's witnesses, and so that was why we had

7 contemplated a 60 day period for oppositions so we would have

8 the opportunity, since we won't see anybody's evidence,

9 there's been no discovery, no disclosures, we'll see

10 everybody's --

11

THE COURT: I think you need to make an initial

12 showing to me that you need witnesses. I just can't conceive

13 as I'm sitting here, and I haven't heard any appropriate

14 response to my problem, my concern.

15

MS. BORELLI: Your Honor --

16

THE COURT: I don't know how expert witnesses

17 can help me. An expert witness is either going to tell me

18 what the law is or the trend of the law. That's what you get

19 in law school. I have already been to law school, with all

20 due respect, and it's the lawyer's problem and concern, I'm a

21 student, you're the teacher, you're the ones who are supposed

22 to tell me what the law ought to be, and then I'm the one who

23 finally says, subject to the Ninth Circuit's review, what the

24 law is.

25

So I don't see how an expert in that area helps me,

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1 nor do I see how a sociologist, a legal scholar, how a

2 government political scientist with knowledge about government

3 interests or private interests or the realm where the

4 legislature can legislate and where it can't. I don't see how

5 that's going to help me.

6

MS. BORELLI: Your Honor --

7

THE COURT: Or even the question of expert

8 testimony on the history of discrimination unless it pertains

9 to the history of discrimination in Nevada or in Clark or

10 Washoe or Douglas County.

11

MS. BORELLI: Your Honor, if I understood the

12 Court correctly, the Court is saying that we may of course as

13 a matter of due process submit the evidence that we believe is

14 appropriate, and then, of course, the Court can look at it and

15 weigh and decide what weight, if any, to give to it.

16

That is correct?

17

THE COURT: Correct.

18

MS. BORELLI: And, your Honor, to return to

19 the -- in addition, there is authority out there about the

20 appropriateness of submitting precisely the type of evidence

21 that we would seek to do in this court.

22

So if there were any desire on the part of the Court

23 to exclude it, we would wish to have the opportunity to brief

24 that first. The Court probably can make all those

25 determinations once it has the evidence in front of it. So

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1 we'll take the Court's cue and submit it with evidence.

2

Your Honor, with respect to the --

3

THE COURT: How about the 30 days to respond, is

4 that sufficient or not?

5

MS. BORELLI: Yes.

6

Your Honor, could we leave open the possibility that

7 we could move for an additional 30 days if we need at that

8 time to take discovery of --

9

THE COURT: Yes, but I would rather anticipate

10 the need now.

11

MS. BORELLI: If so, your Honor, then 60 days is

12 what all of the parties --

13

THE COURT: How about 45 days?

14

MS. BORELLI: We'll agree to 45 days. And, your

15 Honor, in the unlikely event that we needed just a little bit

16 more time, we might come back to the Court and ask for it?

17

THE COURT: Sure, you always can, especially if

18 the response contains something brand-new which it should not,

19 but certainly you can.

20

Okay, 30 days and an order, please. Could I call

21 from the parties an order that provides the date certain,

22 30 days for the motion, 45 days for the response, and then an

23 argument -- an oral argument. Madam Clerk, when, please?

24

I handle all of my items on argument, civil motions

25 to dismiss, motions for summary judgment, not all district

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1 judges do that either in our district or across the country so

2 that's why I'm setting a date now, about 15 or 20 days beyond

3 that.

4

THE CLERK: In November --

5

THE COURT: While we're looking for a date, you

6 might also discuss to the extent that both of you think that

7 some kind of expert testimony or evidence would be helpful to

8 the Court or intend to propose that, you might strongly

9 consider stipulations between yourself as to what evidence was

10 before Judge Kay unless that evidence pertains simply to the

11 District of Hawaii, and if he, in fact, considered it, took it

12 into consideration and had a record, you might consider

13 stipulations between yourselves on that level as well.

14

THE CLERK: November 26th will be our Las Vegas

15 calendar via video.

16

THE COURT: In other words, in Reno.

17

THE CLERK: It will be in Reno and Las Vegas.

18

THE COURT: Do you have any problem coming to

19 Reno for this argument? You've got plaintiffs from Douglas

20 and Washoe, Clark, you've got attorneys from all over

21 Timbuktu. Do you have any problem in coming to my courtroom

22 in Reno to argue the case?

23

Give us the date and time, please. I don't hear any

24 strong objection although November is beginning to get into

25 the winter months.

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1

THE CLERK: Yes, it is. That would be

2 November 26th at 9:00 a.m.

3

THE COURT: November 26th at 9:00 a.m. for oral

4 argument. Question?

5

MR. STEWART: What is the relationship of the

6 26th to Thanksgiving?

7

THE CLERK: It's the Monday after.

8

THE COURT: It's the Monday after the holiday.

9 Is that a problem?

10

MR. STEWART: Not here.

11

THE COURT: Okay. All right. That will be the

12 date. What else?

13

MR. HOWLE: Your Honor, may I address the Court

14 for just one minute?

15

THE COURT: Sure. You're representing?

16

MR. HOWLE: I'm Wayne Howle, and I represent the

17 state, and I just wanted to explain to the Court that we

18 haven't posed putting off a decision on the motion to dismiss

19 for several reasons. One is the law is developing as the

20 Court has seen, and there are five cert petitions pending

21 before the U.S. Supreme Court now that address some of these

22 issues.

23

THE COURT: Right. It makes sense to get this

24 decided and off with the circus train.

25

MR. HOWLE: It can be looked at two ways, either

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1 decided quickly and up there with the rest of them, or let's

2 wait and see what the Supreme Court says.

3

THE COURT: And there's some benefit to that

4 argument, quite frankly, for example, the Ninth Circuit's

5 analysis both of the Baker type issue went off on the fact

6 that there's a distinction between California and Nevada.

7 California had allowed that type of marriage.

8

MR. HOWLE: Yes.

9

THE COURT: And mandated that it be allowed.

10

MR. HOWLE: And there's never been --

11

THE COURT: -- and therefore Prop 8 was a

12 withdrawal, and that's one of the primary distinctions that

13 the Ninth Circuit made.

14

MR. HOWLE: Yes, sir.

15

THE COURT: A case coming up from this district

16 where that's not -- it's a different context, so we face a

17 basic initial question is there an equal process, due process

18 violation where it's never been granted before.

19

MR. HOWLE: Correct.

20

THE COURT: Therefore, of course, in my opinion

21 there's no need to take evidence. There wasn't in California

22 either, but there's no need to take evidence as to the

23 motivations of people who voted on the ballot.

24

So if that's the case, this kind of a case going up

25 at the same time would form a very good context, in other

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1 words, the logical extension of the California case is that

2 Baker applies in our case.

3

MR. HOWLE: Correct.

4

THE COURT: That's the logical extension, and,

5 of course, I'm not the one who ultimately will decide that,

6 the Supreme Court ought to decide that.

7

So there is some good beneficence in what you say

8 that the sooner we can resolve on my level and send it on to

9 the circuit the better.

10

MR. HOWLE: Yes, your Honor.

11

THE COURT: So where does that leave you?

12

MR. HOWLE: It has left us the statement is

13 equivocal, but we're still confident in our argument and so it

14 doesn't matter whether we get it concluded now or later.

15

THE COURT: Will you not need to resolve -- are

16 you asking me to resolve Baker now?

17

MR. HOWLE: No, I'm not, your Honor. I'm

18 explaining why we've gone along with the parties.

19

THE COURT: Okay. So -- and do I still need

20 to -- is there anything else you wanted to represent, sir?

21

MR. HOWLE: I think that's it except,

22 your Honor, that we also agree with the Court that this is not

23 a case for a courtroom fact finding, and to that extent it

24 would be the position of the defendants --

25

THE COURT: To that extent you'll make your

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1 position known in your brief.

2

MR. HOWLE: Yes, your Honor, thank you.

3

THE COURT: One other question I have then, what

4 are we doing with the motion to intervene? Am I granting that

5 so that they can file briefs with this new schedule?

6

MS. SESTITO: Yes, your Honor. We will withdraw

7 our opposition to the motion.

8

THE COURT: If I deny the motion -- well, it's

9 cross-motions for summary judgment so I'm going to rule one

10 way or the other, and we'll send it on to the circuit, right?

11 So I don't need to contemplate further problems in time delays

12 in trial.

13

And you do have a motion -- do you have a motion on

14 the docket for preliminary injunction?

15

MS. SESTITO: We do not.

16

THE COURT: You've never asked for that.

17

MS. SESTITO: We have not --

18

THE COURT: So there's no urgency on behalf of

19 the plaintiffs.

20

MS. SESTITO: There is urgency, your Honor, but

21 we have not filed a motion for preliminary injunction.

22

THE COURT: Nor a temporary restraining order.

23

MS. SESTITO: That's correct.

24

THE COURT: Okay. That's what's usually taken

25 as a sign to a court, as you know, that I can decide on these

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1 questions leisurely.

2

MR. STEWART: Three quick housekeeping matters,

3 your Honor.

4

First, we would like to note granting the motion to

5 intervene to be based on both intervention as of right and

6 permissibly.

7

Second, we very much agree with your Honor regarding

8 the need to move this forward. We would like to see the fate

9 of the Nevada marriage amendment to the greatest extent

10 possible influenced at the very least, influenced by Nevada

11 parties, Nevada counsel and at least one Nevada judge, and so

12 we very much agree with your view that let's have our voices

13 be heard here in Nevada.

14

THE COURT: I agree with that.

15

MR. STEWART: Thank you. And just one

16 correction for the record, you mentioned that there were

17 claims based on both equal protection and due process. I

18 would point out that the complaint --

19

THE COURT: This complaint just raises equal

20 protection.

21

MR. STEWART: Exactly right.

22

THE COURT: Of course, Judge Kay, of course --

23 in Baker it's alleged addressed both due process and equal

24 protection and one third one, what else, constitutional ground

25 for challenging and arguably one way or the other gender

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

ER 665

(775) 329-9980

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-7 Page: 230 of 23(7829 of 928) 27

1 and/or sexual orientation discrimination.

2

MR. STEWART: But the claim does allege both sex

3 and sexual orientation but only for protection.

4

THE COURT: Okay.

5

MS. SESTITO: Your Honor, I would propose that

6 the parties consider present a motion to the Court on

7 intervention and on the schedule.

8

THE COURT: Do you want to be heard on his

9 request both as of right and permissive?

10

MS. SESTITO: I think that we're fine

11 withdrawing the opposition as of right, and if for some reason

12 the case proceeds beyond the cross-motions for summary

13 judgment, the plaintiffs would reserve the right to come back

14 to the Court if it turns out that there's any scheduling

15 issues or delay that we don't anticipate --

16

THE COURT: That's fine, but I'll issue the

17 order. I'll issue the order. Okay?

18

All right. Thank you so much. I'll greet you again

19 in Reno.

20

-o0o-

21

I certify that the foregoing is a correct

transcript from the record of proceedings

22

in the above-entitled matter.

23

/s/Margaret E. Griener

08/22/2012

Margaret E. Griener, CCR #3, RDR

24

Official Reporter

25

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

ER 666

(775) 329-9980

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-7 Page: 231 of 23(7830 of 928)

/
/s/Margaret [1] 27:23
0
08/22/2012 [1] 27:23
1
10 [2] - 1:6, 3:1 100 [1] - 13:15 15 [1] - 21:2 1972 [1] - 8:19
2
20 [5] - 8:6, 8:7, 9:21, 10:9, 21:2
200 [1] - 14:5 2012 [3] - 1:6, 3:1, 8:20 21 [1] - 6:12 26th [4] - 21:14, 22:2, 22:3, 22:6 2:12-CV-578-RCJPAL [1] - 1:5
3
3 [1] - 27:23 30 [25] - 4:12, 6:14, 8:4, 8:7, 9:20, 10:17, 10:20, 16:9, 16:11, 16:12, 16:15, 16:16, 17:6, 17:23, 17:25, 18:1, 18:2, 18:4, 20:3, 20:7, 20:20, 20:22 30-page [1] - 16:5 32 [1] - 4:12 33 [1] - 4:12
4
40 [1] - 8:1 45 [3] - 20:13, 20:14, 20:22
5
500 [3] - 13:13, 13:16, 16:6

6
60 [10] - 5:7, 5:10, 6:15, 8:1, 8:7, 9:23, 10:21, 17:11, 18:7, 20:11
60-day [2] - 11:5, 11:10
8
8 [1] - 23:11
9
90 [1] - 10:22 9:00 [2] - 22:2, 22:3 9:01 [1] - 3:1
A
a.m [2] - 22:2, 22:3 A.M [1] - 3:1 able [2] - 4:20, 9:16 above-entitled [1] 27:22 absurd [2] - 12:5, 15:25 accomplishing [1] 7:23 account [1] - 13:6 acknowledged [1] 14:19 action [2] - 15:6, 15:8 actual [1] - 14:25 add [3] - 9:16, 18:1, 18:2 addition [3] - 7:15, 16:3, 19:19 additional [2] - 11:2, 20:7 address [6] - 4:12, 7:11, 8:10, 8:14, 22:13, 22:21 addressed [2] - 7:9, 26:23 addresses [1] - 6:24 addressing [1] - 16:3 admit [1] - 15:23 agree [6] - 6:1, 20:14, 24:22, 26:7, 26:12, 26:14 agreement [3] - 5:18, 7:25, 10:2 ahead [1] - 7:12 aid [2] - 5:17, 11:22 aided [1] - 11:22

al [2] - 1:4, 1:7 Alan [3] - 3:24, 6:1 ALBA [1] - 2:5 Alba [1] - 4:3 ALBRIGHT [2] 2:11, 4:5 Albright [1] - 4:5 allege [1] - 27:2 alleged [2] - 7:3, 26:23 allowed [3] - 12:16, 23:7, 23:9 allows [1] - 11:10 amendment [2] 13:20, 26:9 Amy [1] - 4:8 analysis [2] - 14:25, 23:5 anew [1] - 17:4 Angeles [2] - 1:19, 1:21 answer [1] - 9:15 anticipate [2] - 20:9, 27:15 anticipated [1] 10:11 appear [1] - 15:23 appearances [2] 3:6, 3:7 APPEARANCES [2] 1:15, 2:1 Appearances [1] 1:25 applies [1] - 24:2 appreciate [1] - 6:23 appropriate [6] 11:14, 11:17, 15:15, 16:24, 18:13, 19:14 appropriately [1] 12:2 appropriateness [1] - 19:20 area [2] - 15:3, 18:25 areas [3] - 12:20, 14:19, 15:2 arguably [1] - 26:25 argue [1] - 21:22 arguing [1] - 16:13 argument [11] - 6:3, 6:4, 8:22, 16:17, 20:23, 20:24, 21:19, 22:4, 23:4, 24:13 arguments [3] - 5:6, 16:25, 17:1 articulate [2] - 5:17, 7:23 aside [1] - 11:3 assuming [2] - 6:18, 7:8 attached [1] - 6:22 attempt [1] - 5:16

Attorney [11] - 1:16, 1:18, 1:20, 1:22, 2:3, 2:5, 2:7, 2:9, 2:11, 4:8, 5:25
Attorney's [1] - 3:23 attorneys [1] - 21:20 AUGUST [1] - 3:1 August [1] - 1:6 authority [1] - 19:19
B
background [1] 14:17
Baker [22] - 5:24, 6:24, 7:8, 7:12, 7:15, 8:9, 8:11, 8:14, 8:17, 8:25, 9:3, 9:7, 9:10, 9:17, 11:2, 15:19, 16:3, 18:1, 23:5, 24:2, 24:16, 26:23
ballot [1] - 23:23 Baranovich [1] 3:14 bargain [5] - 17:11, 17:12, 17:18, 17:20, 17:22 based [4] - 5:24, 15:9, 26:5, 26:17 basic [4] - 8:22, 9:4, 23:17 BEFORE [1] - 1:2 beginning [1] - 21:24 behalf [4] - 3:23, 3:25, 4:8, 25:18 beneficence [1] 24:7 benefit [2] - 9:6, 23:3 better [2] - 6:8, 24:9 between [7] - 5:8, 5:18, 8:18, 17:11, 21:9, 21:13, 23:6 BEVERLY [1] - 1:4 Beverly [1] - 3:13 beyond [6] - 8:11, 16:11, 16:12, 18:4, 21:2, 27:12 bifurcated [1] 12:13 bit [2] - 12:10, 20:15 blind [3] - 10:13, 10:14, 10:17 Boise [1] - 2:10 BORELLI [20] - 1:18, 3:10, 6:11, 8:3, 10:24, 11:13, 11:21, 12:4, 13:22, 14:9, 15:11, 17:7, 18:5, 18:15, 19:6, 19:11, 19:18, 20:5, 20:11, 20:14 Borelli [1] - 3:11

1
brand [2] - 16:19, 20:18
brand-new [2] 16:19, 20:18
BRIAN [1] - 1:7 brief [4] - 10:10, 10:18, 19:23, 25:1 briefed [1] - 17:25 briefing [5] - 6:7, 7:15, 7:25, 8:9, 15:19 briefs [8] - 8:1, 8:2, 8:4, 10:6, 10:8, 10:9, 10:16, 25:5 bring [1] - 15:7 broad [2] - 14:23, 15:3
C
calendar [2] - 17:16, 21:15
California [6] - 1:19, 1:21, 23:6, 23:7, 23:21, 24:1
Carson [4] - 1:23, 2:4, 2:6, 3:23
case [14] - 3:5, 12:18, 12:24, 15:8, 15:12, 21:22, 23:15, 23:24, 24:1, 24:2, 24:23, 27:12
cases [2] - 13:12, 15:17
centuries [2] - 12:18, 12:24
cert [1] - 22:20 certain [1] - 20:21 certainly [1] - 20:19 certify [1] - 27:21 challenging [1] 26:25 chance [1] - 10:16 change [2] - 5:13, 12:16 CHIEF [1] - 1:2 Chris [1] - 4:5 CHRIS [1] - 2:11 Circuit [1] - 23:13 circuit [2] - 24:9, 25:10 Circuit's [3] - 11:20, 18:23, 23:4 circumspect [1] 16:14 circus [1] - 22:24 citations [1] - 17:2 City [4] - 1:23, 2:4, 2:6, 3:23 civil [4] - 3:5, 4:24, 12:15, 20:24

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

ER 667

(775) 329-9980

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-7 Page: 232 of 23(7831 of 928)

claim [1] - 27:2 claims [1] - 26:17 Clark [2] - 19:9, 21:20 class [2] - 15:6, 15:8 class-action [2] 15:6, 15:8 classes [1] - 12:22 classifications [1] 11:15 clear [2] - 11:1, 11:4 Clerk [3] - 3:24, 6:1, 20:23 clerk [1] - 4:4 client [1] - 5:21 Coalition [3] - 4:1, 4:6, 5:22 COALITION [1] 1:10 coming [4] - 12:11, 21:18, 21:21, 23:15 comment [2] - 9:16, 13:3 common [3] - 12:18, 12:20, 12:23 complaint [2] 26:18, 26:19 comply [1] - 17:23 components [1] 12:23 conceive [1] - 18:12 concepts [1] - 14:3 concern [2] - 18:14, 18:20 concluded [1] 24:14 confident [1] - 24:13 congenial [1] - 9:13 consider [4] - 15:2, 21:9, 21:12, 27:6 consideration [3] 9:6, 13:5, 21:12 considered [2] 8:25, 21:11 constitutional [2] 13:20, 26:24 contains [1] - 20:18 contemplate [2] 7:14, 25:11 contemplated [1] 18:7 contemplates [1] 11:6 contend [1] - 8:24 context [4] - 7:5, 7:6, 23:16, 23:25 continuance [1] 4:23 continue [1] - 1:25 Continued [1] - 2:1 contract [1] - 12:21

control [1] - 11:3 controls [1] - 17:15 correct [9] - 6:6, 8:21, 12:4, 19:16, 19:17, 23:19, 24:3, 25:23, 27:21 correction [1] 26:16 correctly [1] - 19:12 counsel [6] - 4:5, 5:17, 5:18, 7:24, 9:24, 26:11 country [3] - 12:13, 15:18, 21:1 county [1] - 4:4 County [2] - 4:8, 19:10 couple [1] - 3:13 course [11] - 6:20, 6:24, 7:4, 16:20, 17:4, 19:12, 19:14, 23:20, 24:5, 26:22 Court [25] - 7:1, 8:19, 11:23, 13:23, 15:13, 15:14, 15:15, 16:4, 16:20, 19:12, 19:14, 19:22, 19:24, 20:16, 21:8, 22:13, 22:17, 22:20, 22:21, 23:2, 24:6, 24:22, 27:6, 27:14 court [4] - 7:21, 9:3, 19:21, 25:25 Court's [1] - 20:1 courtroom [4] - 3:12, 4:16, 21:21, 24:23 courts [1] - 11:22 criminal [1] - 4:23 cross [7] - 6:5, 6:6, 9:8, 16:2, 18:2, 25:9, 27:12 cross-motions [7] 6:5, 6:6, 9:8, 16:2, 18:2, 25:9, 27:12 cue [1] - 20:1 current [1] - 13:5
D
date [8] - 9:21, 9:22, 9:23, 20:21, 21:2, 21:5, 21:23, 22:12
dates [2] - 6:9, 6:10 Dawn [1] - 3:16 DAWN [1] - 1:20 days [35] - 6:12, 6:14, 8:1, 8:6, 9:20, 9:21, 9:23, 10:5, 10:8, 10:9, 10:17, 10:20, 10:21, 10:22, 16:15, 16:16, 17:6, 17:11,

17:23, 17:25, 18:1, 18:2, 18:4, 20:3, 20:7, 20:11, 20:13, 20:14, 20:20, 20:22, 21:2
deadline [1] - 11:6 decades [1] - 12:24 decide [5] - 11:19, 19:15, 24:5, 24:6, 25:25 decided [2] - 22:24, 23:1 deciding [1] - 14:14 decision [3] - 9:4, 13:7, 22:18 defendant [1] - 4:1 Defendant [1] - 1:12 DEFENDANT [5] 1:22, 2:3, 2:5, 2:7, 2:9 defendants [2] 15:19, 24:24 Defendants [1] - 1:8 deferred [1] - 6:4 definite [1] - 9:21 definition [3] - 12:1, 12:8, 13:8 delay [1] - 27:15 delays [1] - 25:11 deny [1] - 25:8 department [1] 14:21 deposing [1] - 18:6 depositions [1] 11:11 Deputy [5] - 1:22, 2:3, 2:5, 2:7, 4:8 describe [1] - 14:10 desire [1] - 19:22 determinations [1] 19:25 determine [1] - 9:10 developed [1] 12:18 developing [1] 22:19 development [2] 12:14, 12:23 Diane [1] - 4:3 different [3] - 15:12, 23:16 disclosure [1] - 11:7 disclosures [1] 18:9 discovery [3] 11:11, 18:9, 20:8 discriminate [1] 14:25 discrimination [11] 7:3, 14:2, 14:7, 14:10, 14:20, 14:24, 15:8, 15:9, 19:8, 19:9, 27:1 discuss [3] - 4:19,

5:8, 21:6 discussing [1] - 4:17 Discussion [2] -
5:11, 17:9 discussion [4] -
6:16, 6:20, 7:14, 7:16 dismiss [10] - 4:12,
5:13, 5:24, 6:3, 6:12, 6:19, 7:3, 7:7, 20:25, 22:18
dismissal [1] - 6:21 distinction [2] - 8:25, 23:6 distinctions [1] 23:12 District [6] - 2:3, 2:5, 2:7, 3:23, 4:8, 21:11 district [4] - 14:22, 20:25, 21:1, 23:15 docket [2] - 4:10, 25:14 Douglas [2] - 19:10, 21:19 DOVE [2] - 1:16, 3:8 Dove [1] - 3:8 down [1] - 16:10 due [7] - 5:6, 7:2, 18:20, 19:13, 23:17, 26:17, 26:23
E
either [4] - 18:17, 21:1, 22:25, 23:22
entire [1] - 15:4 entitled [1] - 27:22 equal [6] - 7:2, 8:25, 23:17, 26:17, 26:19, 26:23 equivocal [1] - 24:13 especially [1] - 20:17 essence [1] - 7:7 et [2] - 1:4, 1:7 etc [1] - 1:7 event [1] - 20:15 evidence [10] - 18:8, 19:13, 19:20, 19:25, 20:1, 21:7, 21:9, 21:10, 23:21, 23:22 exactly [2] - 7:19, 26:21 example [6] - 11:24, 12:10, 13:25, 14:12, 14:20, 23:4 except [1] - 24:21 exclude [1] - 19:23 experience [1] 12:12 expert [22] - 11:10, 11:12, 11:17, 11:18,

2
12:6, 13:10, 13:17, 13:18, 13:21, 13:24, 14:5, 14:9, 14:15, 14:18, 14:20, 15:13, 15:24, 18:16, 18:17, 18:25, 19:7, 21:7
expert's [1] - 13:2 experts [6] - 11:8, 12:9, 14:5, 15:16, 15:22, 15:23 explain [2] - 12:10, 22:17 explaining [1] 24:18 extend [1] - 8:6 extension [2] - 24:1, 24:4 extent [5] - 8:10, 21:6, 24:23, 24:25, 26:9
F
face [1] - 23:16 fact [5] - 13:24, 14:9, 21:11, 23:5, 24:23 factors [1] - 14:1 facts [1] - 11:21 fairness [1] - 17:10 fashion [1] - 7:16 fate [1] - 26:8 felt [1] - 8:9 few [2] - 4:19, 12:23 file [5] - 10:12, 16:15, 16:21, 16:24, 25:5 filed [3] - 5:23, 10:17, 25:21 filing [1] - 10:10 finally [1] - 18:23 fine [2] - 27:10, 27:16 fire [1] - 14:21 first [11] - 4:11, 4:13, 5:15, 7:10, 7:12, 11:16, 16:9, 16:19, 17:3, 19:24, 26:4 five [1] - 22:20 FOLEY [2] - 2:5, 4:3 Foley [1] - 4:3 follow [1] - 12:17 followed [1] - 7:21 follows [1] - 5:20 FOR [7] - 1:10, 1:16, 1:22, 2:3, 2:5, 2:7, 2:9 foregoing [1] - 27:21 form [1] - 23:25 forward [3] - 3:5, 6:19, 26:8 frame [1] - 5:6 frankly [2] - 5:12,

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

ER 668

(775) 329-9980

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-7 Page: 233 of 23(7832 of 928)

23:4 front [2] - 5:7, 19:25 full [3] - 4:23, 6:20 fuller [1] - 7:15 fully [1] - 9:7
G
gay [3] - 14:2, 14:7, 14:11
gender [2] - 8:25, 26:25
General [2] - 1:22, 3:20
General's [1] - 5:25 glasses [1] - 16:9 GLOVER [1] - 2:3 Glover [3] - 3:24, 6:1 governed [1] - 6:7 government [3] 3:21, 19:2 governmental [4] 11:15, 11:25, 12:2, 13:18 Governor [1] - 5:25 grant [1] - 16:21 granted [3] - 5:14, 6:18, 23:18 granting [2] - 25:4, 26:4 greatest [1] - 26:9 greet [1] - 27:18 ground [1] - 26:24 grounds [1] - 13:25 group [1] - 14:22
H
handle [1] - 20:24 Harvey [1] - 4:8 HARVEY [1] - 2:7 Hawaii [1] - 21:11 head [1] - 14:4 headnote [1] - 13:15 hear [2] - 15:22, 21:23 heard [6] - 4:15, 4:25, 5:2, 18:13, 26:13, 27:8 HEARING [1] - 1:14 heightened [1] - 14:1 held [2] - 5:11, 17:9 help [5] - 12:9, 13:17, 13:20, 18:17, 19:5 helpful [2] - 15:13, 21:7 helps [1] - 18:25 Herbert [1] - 4:7 HERBERT [1] - 2:7

hiring [1] - 14:21 history [4] - 14:2, 14:10, 19:8, 19:9 holiday [1] - 22:8 Honor [40] - 3:8, 3:10, 3:19, 3:22, 4:7, 4:15, 5:4, 5:16, 6:11, 7:19, 9:19, 10:19, 10:24, 11:9, 11:14, 11:21, 13:22, 14:12, 15:11, 17:7, 17:13, 18:5, 18:15, 19:6, 19:11, 19:18, 20:2, 20:6, 20:11, 20:15, 22:13, 24:10, 24:17, 24:22, 25:2, 25:6, 25:20, 26:3, 26:7, 27:5 housekeeping [1] 26:2 housing [1] - 14:23 HOWLE [15] - 1:22, 3:19, 22:13, 22:16, 22:25, 23:8, 23:10, 23:14, 23:19, 24:3, 24:10, 24:12, 24:17, 24:21, 25:2 Howle [2] - 3:20, 22:16 hundred [1] - 14:7 hundreds [1] - 12:25
I
Idaho [1] - 2:10 identical [1] - 8:18 illumination [2] 9:13 image [1] - 16:12 immediate [1] - 7:10 immediately [1] 12:16 important [3] - 6:17, 9:22, 9:23 in-blind [1] - 10:17 incidences [1] - 15:5 including [2] - 3:13, 15:18 incorporating [1] 11:7 incredible [1] - 12:8 independent [1] 11:2 influenced [2] 26:10 initial [5] - 6:6, 10:10, 16:15, 18:11, 23:17 injunction [2] 25:14, 25:21 inquiry [1] - 15:25

institution [3] - 12:1, 12:19, 12:24
institutional [2] 12:7, 12:25
intend [4] - 9:16, 11:9, 15:16, 21:8
intent [2] - 9:18, 14:25
interest [1] - 11:25 interested [1] - 17:21 interests [4] - 11:15, 12:2, 19:3 intervene [5] - 4:11, 4:14, 4:18, 25:4, 26:5 Intervenor [1] - 1:12 INTERVENOR [1] 2:9 intervenor [1] - 4:1 IntervenorDefendant [1] - 1:12 intervenordefendant [1] - 4:1 intervention [6] 4:21, 5:14, 5:21, 6:13, 26:5, 27:7 introduced [2] 15:14, 15:17 involved [2] - 9:10, 15:12 issue [11] - 6:24, 6:25, 8:22, 9:4, 11:25, 13:18, 18:1, 23:5, 27:16, 27:17 issues [15] - 4:17, 7:17, 8:10, 8:17, 8:18, 9:1, 9:7, 9:11, 9:17, 14:20, 15:12, 16:13, 16:22, 22:22, 27:15 item [1] - 17:5 items [2] - 4:10, 20:24
J
joined [1] - 3:12 JONES [1] - 1:2 judge [1] - 26:11 Judge [12] - 6:22, 6:24, 7:4, 7:9, 7:20, 8:23, 9:6, 12:6, 13:23, 16:8, 21:10, 26:22 judges [1] - 21:1 judgment [10] - 6:7, 6:21, 7:6, 7:16, 9:8, 11:6, 16:2, 20:25, 25:9, 27:13 jump [1] - 10:25 Justice [2] - 12:11, 13:3

K
KAPLAN [2] - 2:7, 4:7
Kaplan [1] - 4:7 Kay [7] - 6:24, 7:4, 7:9, 9:6, 13:23, 21:10, 26:22 Kay's [2] - 6:22, 7:21 KELLY [1] - 1:16 Kelly [1] - 3:8 kind [3] - 13:17, 21:7, 23:24 kings [1] - 12:15 knowledge [1] - 19:2 known [1] - 25:1
L
Lambda [1] - 3:11 largely [1] - 12:17 LAS [1] - 3:1 Las [5] - 1:7, 1:17, 2:12, 21:14, 21:17 last [3] - 13:13, 13:15, 14:7 Law [5] - 1:16, 1:18, 1:20, 2:9, 2:11 law [20] - 6:20, 7:7, 7:16, 11:18, 11:19, 12:12, 12:14, 12:16, 12:18, 12:20, 12:22, 12:23, 15:24, 18:18, 18:19, 18:22, 18:24, 22:19 lawyer's [1] - 18:20 lead [1] - 3:13 least [2] - 26:10, 26:11 leave [3] - 16:17, 20:6, 24:11 left [2] - 7:24, 24:12 Legal [1] - 3:11 legal [2] - 13:11, 19:1 legislate [1] - 19:4 legislature [2] 14:14, 19:4 legislatures [1] 12:15 leisurely [1] - 26:1 level [3] - 11:13, 21:13, 24:8 Lexis [1] - 13:14 life [1] - 12:12 light [1] - 13:3 limit [1] - 16:5 local [5] - 4:5, 11:7, 14:21, 14:22 logical [2] - 24:1, 24:4

3
look [2] - 13:23, 19:14
looked [1] - 22:25 looking [2] - 14:24, 21:5 Los [2] - 1:19, 1:21 lost [1] - 10:1
M
Madam [1] - 20:23 maintained [1] 14:23 mandated [1] - 23:9 mark [1] - 17:19 marriage [7] - 12:1, 12:7, 12:19, 12:20, 12:24, 23:7, 26:9 Marriage [2] - 4:2, 5:22 MARRIAGE [1] 1:11 Marshall [1] - 12:11 Marshall's [1] - 13:3 Mart [2] - 15:6, 15:8 Mary [1] - 3:14 material [1] - 17:18 matter [4] - 5:2, 19:13, 24:14, 27:22 matters [3] - 4:24, 5:1, 26:2 measure [1] - 9:10 mentioned [2] - 8:17, 26:16 merits [7] - 6:20, 7:8, 7:9, 7:15, 8:10, 9:17, 16:3 method [1] - 12:17 MICHAEL [1] - 2:5 Michael [1] - 4:3 might [5] - 4:19, 20:16, 21:6, 21:8, 21:12 mind [1] - 12:5 mine [1] - 5:7 minute [1] - 22:14 minutes [3] - 4:19, 5:2, 5:4 moment [4] - 3:5, 3:6, 4:16, 11:1 Monday [2] - 22:7, 22:8 MONTE [1] - 2:9 Monte [1] - 3:25 month [1] - 13:4 months [2] - 13:4, 21:25 morning [6] - 3:8, 3:10, 3:19, 3:22, 4:23, 5:1

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

ER 669

(775) 329-9980

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-7 Page: 234 of 23(7833 of 928)

MOTION [1] - 1:14 motion [25] - 4:11, 4:13, 4:18, 4:21, 5:14, 6:12, 6:18, 6:19, 6:21, 7:3, 7:6, 16:25, 17:25, 20:22, 22:18, 25:4, 25:7, 25:8, 25:13, 25:21, 26:4, 27:6 motions [17] - 4:12, 4:20, 5:13, 5:19, 5:24, 6:3, 6:5, 6:6, 9:8, 16:2, 16:15, 18:2, 20:24, 20:25, 25:9, 27:12 motivations [2] 13:19, 23:23 movant [1] - 3:25 move [3] - 11:9, 20:7, 26:8 movement [1] - 4:6 moving [1] - 15:21 MR [48] - 3:19, 3:22, 3:25, 4:3, 4:5, 4:7, 5:3, 5:9, 5:16, 6:14, 7:19, 8:7, 8:12, 8:16, 8:23, 9:5, 9:12, 9:18, 9:22, 10:2, 10:5, 10:8, 10:11, 10:14, 10:19, 10:22, 17:10, 17:13, 17:17, 22:5, 22:10, 22:13, 22:16, 22:25, 23:8, 23:10, 23:14, 23:19, 24:3, 24:10, 24:12, 24:17, 24:21, 25:2, 26:2, 26:15, 26:21, 27:2 MS [30] - 3:8, 3:10, 3:16, 4:15, 4:25, 6:11, 8:3, 10:24, 11:13, 11:21, 12:4, 13:22, 14:9, 15:11, 17:7, 18:5, 18:15, 19:6, 19:11, 19:18, 20:5, 20:11, 20:14, 25:6, 25:15, 25:17, 25:20, 25:23, 27:5, 27:10 MUNN [2] - 2:3, 3:22 Munn [2] - 3:23, 6:1 Myers [1] - 3:17
N
name [1] - 12:21 narrow [1] - 14:16 nationally [1] - 15:10 nature [1] - 6:22 necessary [1] 11:11 need [18] - 5:10, 5:15, 8:9, 16:1, 16:12, 16:18, 18:1, 18:4,

18:11, 18:12, 20:7, 20:10, 23:21, 23:22, 24:15, 24:19, 25:11, 26:8
needed [1] - 20:15 Nelson [2] - 5:24, 15:19 Nevada [16] - 1:7, 1:17, 1:23, 2:4, 2:6, 2:8, 2:12, 3:20, 15:10, 19:9, 23:6, 26:9, 26:10, 26:11, 26:13 never [3] - 23:10, 23:18, 25:16 new [3] - 16:19, 20:18, 25:5 newly [1] - 16:22 newly-raised [1] 16:22 next [1] - 1:25 Ninth [4] - 11:20, 18:23, 23:4, 23:13 normally [1] - 8:5 note [1] - 26:4 November [5] - 21:4, 21:14, 21:24, 22:2, 22:3 number [5] - 3:13, 4:11, 5:20, 5:23, 11:22
O
O'Melveny [1] - 3:16 objection [2] - 5:21, 21:24 obtain [1] - 17:19 obtains [1] - 17:20 obviously [1] - 15:13 OF [3] - 1:1, 1:11, 1:14 office [2] - 3:23, 5:25 Official [1] - 27:24 once [1] - 19:25 one [21] - 5:20, 8:17, 10:15, 11:16, 12:14, 12:19, 14:5, 14:12, 17:15, 18:22, 22:14, 22:19, 23:12, 24:5, 25:3, 25:9, 26:11, 26:15, 26:24, 26:25 ones [1] - 18:21 open [2] - 6:19, 20:6 opening [2] - 8:1, 10:5 opinion [2] - 7:6, 23:20 opportunity [2] 18:8, 19:23 opposition [3] 11:6, 25:7, 27:11

oppositions [1] 18:7
oral [3] - 16:17, 20:23, 22:3
order [9] - 6:8, 6:10, 8:3, 9:21, 20:20, 20:21, 25:22, 27:17
orientation [6] - 9:1, 9:3, 11:3, 11:14, 27:1, 27:3
ought [2] - 18:22, 24:6
own [1] - 17:16
P
page [1] - 1:25 pages [4] - 16:7, 16:9, 16:11, 16:12 papers [1] - 15:21 part [3] - 9:3, 17:18, 19:22 particular [1] - 4:21 parties [9] - 4:17, 5:23, 13:24, 17:10, 20:12, 20:21, 24:18, 26:11, 27:6 parties' [1] - 17:1 party [3] - 8:12, 17:3, 17:12 pattern [1] - 7:21 pending [5] - 4:20, 5:19, 5:23, 6:2, 22:20 people [5] - 13:19, 14:2, 14:7, 14:11, 23:23 perhaps [1] - 7:14 period [2] - 11:10, 18:7 permissibly [1] 26:6 permission [6] 16:4, 16:10, 16:20, 16:21, 17:4, 17:5 permissive [1] - 27:9 permitted [1] - 13:24 person [1] - 13:12 pertains [2] - 19:8, 21:10 petitions [1] - 22:20 pick [1] - 6:8 plaintiff [1] - 3:7 plaintiffs [12] - 1:5, 3:9, 3:11, 3:13, 3:17, 5:20, 6:2, 8:24, 9:14, 21:19, 25:19, 27:13 plaintiffs' [2] - 9:24, 17:20 podium [1] - 5:7 point [3] - 9:2, 26:18

political [2] - 14:3, 19:2
polling [2] - 14:14, 14:15
posed [1] - 22:18 position [2] - 24:24, 25:1 possibility [1] - 20:6 possible [1] - 26:10 powerlessness [1] 14:3 practice [2] - 14:23, 14:25 practices [1] - 14:21 precisely [1] - 19:20 preclude [1] - 9:19 prediscovery [3] 6:6, 6:20, 7:16 preliminary [2] 25:14, 25:21 preparatory [1] 16:17 present [2] - 9:24, 27:6 presented [2] - 8:18, 8:19 presume [5] - 12:6, 13:3, 13:4, 13:9 pretty [2] - 14:23, 15:24 primary [1] - 23:12 principles [2] 13:14, 13:15 private [1] - 19:3 probate [1] - 12:20 problem [6] - 5:8, 18:14, 18:20, 21:18, 21:21, 22:9 problems [1] - 25:11 proceedings [1] 27:21 proceeds [1] - 27:12 process [6] - 7:2, 19:13, 23:17, 26:17, 26:23 processes [1] 14:16 Prop [1] - 23:11 propose [3] - 4:11, 21:8, 27:5 proposed [4] - 4:1, 6:8, 6:11, 10:25 proposition [1] 12:6 protection [6] - 7:2, 9:1, 26:17, 26:20, 26:24, 27:3 PROTECTION [1] 1:11 Protection [2] - 4:1, 5:22

4
provides [1] - 20:21 prudential [3] - 7:20, 8:17, 9:5 put [5] - 9:21, 15:21, 16:1, 16:9, 16:24 putting [1] - 22:18
Q
questions [5] - 5:12, 6:17, 15:23, 15:24, 26:1
quick [1] - 26:2 quickly [1] - 23:1 quite [1] - 23:4
R
raised [3] - 11:4, 16:19, 16:22
raises [1] - 26:19 raising [1] - 17:4 Randall [1] - 3:22 RANDALL [1] - 2:3 range [1] - 15:17 rather [1] - 20:9 reached [1] - 5:18 read [2] - 6:22, 16:9 really [2] - 7:6, 9:7 realm [1] - 19:3 realtors [1] - 14:22 reason [2] - 10:24, 27:11 reasons [5] - 7:20, 8:17, 9:25, 11:2, 22:19 recognized [3] 12:20, 14:11, 15:1 record [6] - 5:11, 11:1, 17:9, 21:12, 26:16, 27:21 Recorder [1] - 3:24 regarding [2] - 7:25, 26:7 reiterate [1] - 16:25 related [1] - 14:3 relationship [1] 22:5 relative [1] - 14:2 relied [1] - 15:18 rely [1] - 14:18 remind [2] - 16:5, 16:10 Reno [6] - 2:8, 21:16, 21:17, 21:19, 21:22, 27:19 repeat [1] - 7:13 reply [6] - 8:4, 10:9, 10:16, 11:5, 16:21, 17:5

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

ER 670

(775) 329-9980

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-7 Page: 235 of 23(7834 of 928)

Reporter [1] - 27:24 represent [2] 22:16, 24:20 representing [1] 22:15 request [1] - 27:9 reserve [1] - 27:13 resolution [1] - 6:12 resolve [6] - 4:20, 5:15, 7:17, 24:8, 24:15, 24:16 respect [7] - 5:6, 5:18, 11:5, 13:25, 17:14, 18:20, 20:2 respectfully [1] 4:18 respond [8] - 8:8, 10:16, 16:16, 17:1, 17:6, 18:3, 18:4, 20:3 response [13] - 9:23, 10:8, 15:20, 16:1, 16:18, 16:19, 16:22, 16:25, 17:3, 17:23, 18:14, 20:18, 20:22 responsive [2] - 8:2, 10:18 rest [1] - 23:1 restraining [1] 25:22 result [1] - 15:1 return [1] - 19:18 review [3] - 11:14, 11:20, 18:23 Roman [1] - 12:14 rule [2] - 11:7, 25:9 ruled [1] - 7:4 ruling [6] - 6:2, 6:4, 6:5, 6:22, 7:7, 9:7
S
SANDOVAL [1] - 1:7 Sandoval [2] - 3:4, 5:25 schedule [4] - 6:7, 7:25, 25:5, 27:7 scheduling [5] 4:17, 6:8, 6:10, 8:3, 27:14 scholar [2] - 13:11, 19:1 school [4] - 12:22, 14:22, 18:19 scientist [1] - 19:2 scrutiny [1] - 14:1 second [2] - 11:24, 26:7 seconds [3] - 5:7, 5:9, 5:10 see [10] - 6:5, 9:9,

12:9, 18:8, 18:9, 18:25, 19:1, 19:4, 23:2, 26:8
seek [2] - 16:6, 19:21 seeking [1] - 16:10 send [2] - 24:8, 25:10 sense [2] - 14:18, 22:23 Sestito [1] - 3:16 SESTITO [11] - 1:20, 3:16, 4:15, 4:25, 25:6, 25:15, 25:17, 25:20, 25:23, 27:5, 27:10 sets [1] - 17:15 setting [1] - 21:2 Sevcik [2] - 3:4, 3:14 SEVCIK [1] - 1:4 several [3] - 4:10, 13:25, 22:19 sex [1] - 27:2 sexual [6] - 9:1, 9:2, 11:3, 11:14, 27:1, 27:3 shall [1] - 6:14 shortens [1] - 5:5 showing [1] - 18:12 side [1] - 9:2 sides [2] - 10:11, 11:10 sign [1] - 25:25 significant [1] - 11:2 simply [5] - 8:10, 8:18, 16:9, 17:1, 21:10 sit [1] - 14:13 sitting [1] - 18:13 sixty [2] - 10:8, 10:19 smacks [1] - 15:5 Snell [1] - 3:9 society [1] - 14:12 sociologist [2] 13:11, 19:1 Solicitor [1] - 3:20 sooner [1] - 24:8 sorry [3] - 4:22, 10:20, 11:5 spoken [1] - 7:1 standard [1] - 15:8 State [3] - 3:20, 15:9 state [3] - 9:3, 14:21, 22:17 statement [1] - 24:12 States [2] - 14:16, 15:4 statistical [2] 14:17, 14:24 statistically [1] 13:12 statistics [4] - 14:17, 15:1, 15:2, 15:9

statute [1] - 12:14 STEWART [31] - 2:9, 3:25, 5:3, 5:9, 5:16, 6:14, 7:19, 8:7, 8:12, 8:16, 8:23, 9:5, 9:12, 9:18, 9:22, 10:2, 10:5, 10:8, 10:11, 10:14, 10:19, 10:22, 17:10, 17:13, 17:17, 22:5, 22:10, 26:2, 26:15, 26:21, 27:2 Stewart [1] - 3:25 still [4] - 12:2, 13:8, 24:13, 24:19 stipulation [5] - 7:14, 7:22, 16:5, 16:6, 16:11 stipulations [2] 21:9, 21:13 strains [1] - 13:5 strong [3] - 7:20, 12:22, 21:24 strongly [1] - 21:8 student [1] - 18:21 stumble [1] - 5:17 subject [2] - 11:19, 18:23 subjects [1] - 15:16 submit [2] - 19:13, 20:1 submitting [1] 19:20 subsequent [1] - 6:3 successfully [1] 15:7 sufficient [2] - 13:24, 20:4 summarize [1] - 15:5 summarizes [2] 13:12, 13:14 summarizing [1] 14:6 summary [10] - 6:6, 6:21, 7:5, 7:16, 9:8, 11:6, 16:2, 20:25, 25:9, 27:12 support [3] - 12:7, 13:1, 13:5 supported [1] - 12:2 supporting [1] - 11:9 supposed [4] 11:18, 11:19, 16:23, 18:21 supreme [1] - 9:3 Supreme [5] - 7:1, 8:19, 22:21, 23:2, 24:6 system [2] - 12:13, 12:15

T
talks [1] - 6:25 TARA [1] - 1:18 Tara [1] - 3:10 task [1] - 7:24 teacher [1] - 18:21 temporary [1] 25:22 ten [2] - 5:1, 5:3 testifies [1] - 13:18 testimony [13] 11:10, 11:12, 11:17, 12:7, 13:2, 13:25, 14:10, 14:20, 15:14, 15:17, 15:24, 19:8, 21:7 Thanksgiving [1] 22:6 therefore [2] - 23:11, 23:20 therein [1] - 13:13 third [1] - 26:24 thirty [2] - 5:9, 10:5 Thirty [1] - 6:14 thoughts [1] - 14:16 thousands [1] - 15:5 three [1] - 26:2 Timbuktu [1] - 21:21 timeframe [1] - 9:23 today [1] - 3:12 took [2] - 12:22, 21:11 tort [1] - 12:21 total [1] - 10:20 traditional [3] - 12:1, 12:8, 13:7 train [1] - 22:24 transcript [1] - 27:21 trend [1] - 18:18 trends [3] - 13:6, 13:13, 13:15 trial [1] - 25:12 trigger [1] - 6:9 true [1] - 17:11 trying [1] - 7:22 turns [1] - 27:14 two [6] - 5:23, 8:5, 11:1, 13:4, 22:25 type [4] - 7:2, 19:20, 23:5, 23:7
U
U.S [1] - 22:21 ultimately [1] - 24:5 under [3] - 12:1, 12:7, 15:8 underpinnings [1] -

5
13:7 understood [1] -
19:11 undoubtedly [1] -
16:21 United [2] - 14:15,
15:4 unless [4] - 16:4,
16:5, 19:8, 21:10 unlikely [1] - 20:15 up [5] - 4:11, 4:13,
23:1, 23:15, 23:24 urge [1] - 13:22 urgency [2] - 25:18,
25:20 useless [1] - 15:25
V
VEGAS [1] - 3:1 Vegas [5] - 1:7, 1:17, 2:12, 21:14, 21:17 ventilated [1] - 9:8 versus [3] - 3:4, 13:15, 15:19 via [1] - 21:15 video [1] - 21:15 view [1] - 26:12 violation [1] - 23:18 violations [1] - 7:2 vis [2] - 4:17 vis-a-vis [1] - 4:17 voices [1] - 26:12 voted [2] - 13:19, 23:23 vs [1] - 1:6
W
wait [1] - 23:2 Wal [2] - 15:6, 15:8 Wal-Mart [2] - 15:6, 15:8 Walker [1] - 12:6 Washoe [3] - 4:7, 19:10, 21:20 WAYNE [1] - 1:22 Wayne [2] - 3:19, 22:16 ways [1] - 22:25 weeks [1] - 8:5 weigh [1] - 19:15 weight [2] - 15:15, 19:15 welfare [1] - 12:21 Westlaw [1] - 13:14 whichever [1] - 6:13 wide [1] - 15:17 Wilmer [1] - 3:9 winter [1] - 21:25

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

ER 671

(775) 329-9980

Case: 12-17668 10/18/2013
wish [2] - 8:6, 19:23 withdraw [2] - 5:21, 25:6 withdrawal [1] 23:12 withdrawing [1] 27:11 witness [2] - 13:10, 18:17 witnesses [3] - 18:6, 18:12, 18:16 words [3] - 14:6, 21:16, 24:1
Y
years [6] - 12:25, 13:4, 13:13, 13:15, 13:16, 14:7
yourself [1] - 21:9 yourselves [2] - 5:8, 21:13

ID: 8828038 DktEntry: 20-7 Page: 236 of 23(7835 of 928) 6

MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

ER 672

(775) 329-9980

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-7 Page: 237 of 23(7836 of 928)

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Tara L. Borelli

.

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-8 Page: 1 of 92(837 of 928)

Case No. 12-17668

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and
COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.

On Appeal from the United States District Court for the District of Nevada
Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge.

PLAINTIFFS-APPELLANTS’ EXCERPTS OF RECORD VOLUME 5 OF 5

Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi D. Day LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600

Carla Christofferson Dawn Sestito Dimitri Portnoi Melanie Cristol Rahi Azizi O’MELVENY &
MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000

Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes
Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

Case: 12-17668 10/18/2013

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INDEX TO EXCERPTS OF RECORD

Volume 1 of 5

Date Filed

Document Description

12/3/2012 Judgment in a Civil Case

Dist. Ct. Dkt. No.
103

ER Pg. No.
1

11/26/2012 Order on Motion to Dismiss and Cross-Motions for Summary Judgment

102

2

Volume 2 of 5

Date Filed

Document Description

12/3/2012 Plaintiffs’ Notice of Appeal (exhibits omitted)

Dist. Ct. Dkt. No.
104

ER Pg. No.
43

11/08/2012 Plaintiffs’ Motion for Leave to File Summary

100

46

Judgment Reply Brief

.

.

Exhibit A – Plaintiffs’ Brief in Reply to the 100-1

50

Coalition’s Opposition

.

.

Exhibit B – Declaration of Michael Lamb, 100-2

56

Ph.D.

.

.

Exhibit 1 – Article

66

Exhibit 2 – Trial transcript excerpts

71

Exhibit C – Declaration of Tara Borelli

100-3

85

10/25/2012 Supplemental Declaration of Michael Lamb,

98-1

131

Ph.D. in Support of Plaintiffs’ Summary

Judgment Opposition

10/25/2012 Supplemental Declaration of Letitia Anne Peplau, Ph.D. in Support of Plaintiffs’ Summary Judgment Opposition

98-2

139

i

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Volume 2 of 5, continued

Date Filed

Document Description

9/10/2012

Plaintiffs’ Request for Judicial Notice in Support of Plaintiffs’ Motion for Summary Judgment
Exhibit A – Pages from Carson City ClerkRecorder website
Exhibit B – Page from Clark County Clerk website
Exhibit C – Ballot results for Question 2 (2000)
Exhibit D – Ballot results for Question 2 (2002)
Exhibit E – Excerpt from Social Security Administration manual
Exhibit F – Page from Nevada DMV website

Dist. Ct. Dkt. No.
87

ER Pg. No.
143 . .
148 .
157 .
159 .
165 .
170 .
174

Appendix to Plaintiffs’ Motion for Summary

86-1

177

Judgment, Vol. 1

.

Declaration of Beverly Sevcik

179

Declaration of Mary Baranovich

184

Declaration of Theodore Small

189

Declaration of Antioco Carrillo

194

Declaration of Karen Goody

199

Declaration of Karen Vibe

203

Declaration of Greg Flamer

208

Declaration of Fletcher Whitwell

212

Declaration of Mikyla Miller

216

Declaration of Katrina Miller

220

ii

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Date Filed 9/10/2012

Volume 2 of 5, continued

Document Description
Declaration of Adele Newberry Declaration of Tara Newberry Declaration of Caren Cafferata-Jenkins Declaration of Farrell Cafferata-Jenkins Declaration of Sara Geiger Declaration of Megan Lanz Declaration of Tara Borelli
Exhibit A – Campaign flyer relating to Question 2 Exhibit B – Letter from the Coalition for the Protection of Marriage relating to Question 2 (August 2002)

Dist. Ct. Dkt. No.
86-1

ER Pg. No.
224 228 232 236 240 245 249 251
. 253

Volume 3 of 5

Date Filed

Document Description

9/10/2012 Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 2 Declaration of Nancy F. Cott, Ph.D. Declaration of Letitia Anne Peplau, Ph.D. Declaration of M.V. Lee Badgett, Ph.D Declaration of George Chauncey, Ph.D.

Dist. Ct. Dkt. No.
86-2

ER Pg. No.
258

260 302 349 389

iii

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Date Filed

Volume 4 of 5 Document Description

9/10/2012

Appendix to Plaintiffs’ Motion for Summary Judgment, Vol. 3
Declaration of Gary M. Segura, Ph.D.
Declaration of Michael Lamb, Ph.D.

Dist. Ct. Dkt. No.
86-3

ER Pg. No.
442

444 498

8/10/2012 Transcript of Motion Hearing

69

640

Date Filed

Volume 5 of 5 Document Description

5/18/2012 Answer of Amy Harvey, Washoe County Clerk

5/18/2012 Answer of Diana Alba, Clark County Clerk

4/10/2012 Complaint for Declaratory and Injunctive Relief (minor names redacted)

--

U.S. District Court Docket Sheet

Dist. Ct. Dkt. No.
35

ER Pg. No.
673

34

691

1

695

--

725

iv

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e:o6f 1o8f 92(842 of 928)

1 RICHARD A. GAMMICK Washoe County District Attorney
2 HERBERT B. KAPLAN Deputy District Attorney
3 Nevada State Bar Number 7395 P. O. Box 30083
4 Reno, NV 89520-3083 (775) 337-5700
5 ATTORNEY FOR DEFENDANT AMY HARVEY, WASHOE COUNTY CLERK
6

7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

* * *

10 BEVERLY SEVCIK and MARY BARANOVICH;

ANTIOCO CARRILLO and THEODORE SMALL;

11 KAREN GOODY and KAREN VIBE; FLETCHER 2:12-CV-00578-RCJ-PAL

WHITWELL and GREG FLAMER; MIKYLA

12 MILLER and KATRINA MILLER; ADELE

TERRANOVA and TARA NEWBERRY; CAREN

13 CAFFERATTA-JENKINS and FARRELL

ANSWER OF AMY HARVEY,

CARRERATA-JENKINS; and MEGAN LANZ

WASHOE COUNTY CLERK

14 and SARA GEIGER,

15

Plaintiffs,

16

vs.

17 BRIAN SANDOVAL, in his official capacity as Governor of the State of
18 Nevada; DIANA ALBA, in her official capacity as Clerk for Clark County;
19 AMY HARVEY, in her official capacity as Clerk for Washoe County; and ALAN
20 GLOVER, in his official capacity as Clerk-Recorder for Carson City,
21 Defendants.
22 ___________________________________/

23

24

COMES NOW, Defendant, Amy Harvey, the Washoe County Clerk,

25 by and through her undersigned counsel, and hereby answers

26 Plaintiffs’ Complaint For Declaratory and Injunctive Relief

-1-
ER 673

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg2e:o7f 1o8f 92(843 of 928)

1 (Doc #1) as follows. Preliminarily, however, Ms. Harvey wishes

2 to express that she has no intention to defend the substantive

3 merits of this case and has agreed to be bound by the final,

4 decision herein.

5

A. INTRODUCTION

6

1. Defendant is without sufficient information to either

7 admit or deny, and therefore on that basis denies, the

8 allegation contained in paragraph 1 of Plaintiffs’ Complaint

9 For Declaratory and Injunctive Relief (hereinafter referred to

10 as “Complaint”).

11

2. Defendant is without sufficient information to either

12 admit or deny, and therefore on that basis denies, the

13 allegation contained in paragraph 2 of Plaintiffs’ Complaint.

14

3. Defendant is without sufficient information to either

15 admit or deny, and therefore on that basis denies, the

16 allegation contained in paragraph 3 of Plaintiffs’ Complaint.

17

4. Defendant is without sufficient information to either

18 admit or deny, and therefore on that basis denies, the

19 allegation contained in paragraph 4 of Plaintiffs’ Complaint.

20

PARTIES

21

5. Defendant is without sufficient information to either

22 admit or deny, and therefore on that basis denies, the

23 allegation contained in paragraph 5 of Plaintiffs’ Complaint.

24

6. Defendant is without sufficient information to either

25 admit or deny, and therefore on that basis denies, the

26 allegation contained in paragraph 6 of Plaintiffs’ Complaint.

-2-
ER 674

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg3e:o8f 1o8f 92(844 of 928)

1

7. Defendant is without sufficient information to either

2 admit or deny, and therefore on that basis denies, the

3 allegation contained in paragraph 7 of Plaintiffs’ Complaint.

4

8. Defendant is without sufficient information to either

5 admit or deny, and therefore on that basis denies, the

6 allegation contained in paragraph 8 of Plaintiffs’ Complaint.

7

9. Defendant is without sufficient information to

8 either admit or deny, and therefore on that basis denies, the

9 allegation contained in paragraph 9 of Plaintiffs’ Complaint.

10

10. Defendant is without sufficient information to either

11 admit or deny, and therefore on that basis denies, the

12 allegation contained in paragraph 10 of Plaintiffs’ Complaint.

13

11. Defendant is without sufficient information to either

14 admit or deny, and therefore on that basis denies, the

15 allegation contained in paragraph 11 of Plaintiffs’ Complaint.

16

12. Defendant is without sufficient information to either

17 admit or deny, and therefore on that basis denies, the

18 allegation contained in paragraph 12 of Plaintiffs’ Complaint.

19

13. Defendant admits the allegations contained in

20 paragraph 13 of Plaintiffs’ Complaint.

21

14. Defendant admits the allegations contained in

22 paragraph 14 of Plaintiffs’ Complaint.

23

15. Defendant admits the allegations contained in

24 paragraph 15 of Plaintiffs’ Complaint.

25

16. Defendant admits the allegations contained in

26 paragraph 16 of Plaintiffs’ Complaint.

-3-
ER 675

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg4e:o9f 1o8f 92(845 of 928)

1

17. Defendant is without sufficient information to either

2 admit or deny, and therefore on that basis denies, the

3 allegation contained in paragraph 17 of Plaintiffs’ Complaint.

4

JURISDICTION AND VENUE

5

18. Defendant is without sufficient information to either

6 admit or deny, and therefore on that basis denies, the

7 allegation contained in paragraph 18 of Plaintiffs’ Complaint.

8

19. Defendant is without sufficient information to either

9 admit or deny, and therefore on that basis denies, the

10 allegation contained in paragraph 19 of Plaintiffs’ Complaint.

11

20. Defendant admits the allegations contained in

12 paragraph 20 of Plaintiffs’ Complaint.

13

21. Defendant admits the allegations contained in

14 paragraph 21 of Plaintiffs’ Complaint.

15

22. Defendant admits the allegations contained in

16 paragraph 22 of Plaintiffs’ Complaint.

17

STATEMENT OF THE FACTS

18

23. Defendant is without sufficient information to either

19 admit or deny, and therefore on that basis denies, the

20 allegation contained in paragraph 23 of Plaintiffs’ Complaint.

21

24. Defendant is without sufficient information to either

22 admit or deny, and therefore on that basis denies, the

23 allegation contained in paragraph 24 of Plaintiffs’ Complaint.

24

25. Defendant is without sufficient information to either

25 admit or deny, and therefore on that basis denies, the

26 allegation contained in paragraph 25 of Plaintiffs’ Complaint.

-4-
ER 676

CasCea:s1e2-21:1726-6c8v-001507/81-8R/2C0J13-PAL DIDo:cu8m82e8n0t3385 DFikletEdn0tr5y/:1280/1-28 PPagaege5: o1f01o8f 92(846 of 928)

1

26. Defendant is without sufficient information to either

2 admit or deny, and therefore on that basis denies, the

3 allegation contained in paragraph 26 of Plaintiffs’ Complaint.

4

27. Defendant is without sufficient information to either

5 admit or deny, and therefore on that basis denies, the

6 allegation contained in paragraph 27 of Plaintiffs’ Complaint.

7

28. Defendant is without sufficient information to either

8 admit or deny, and therefore on that basis denies, the

9 allegation contained in paragraph 28 of Plaintiffs’ Complaint.

10

29. Defendant is without sufficient information to either

11 admit or deny, and therefore on that basis denies, the

12 allegation contained in paragraph 29 of Plaintiffs’ Complaint.

13

30. Defendant is without sufficient information to either

14 admit or deny, and therefore on that basis denies, the

15 allegation contained in paragraph 30 of Plaintiffs’ Complaint.

16

31. Defendant is without sufficient information to either

17 admit or deny, and therefore on that basis denies, the

18 allegation contained in paragraph 31 of Plaintiffs’ Complaint.

19

32. Defendant is without sufficient information to either

20 admit or deny, and therefore on that basis denies, the

21 allegation contained in paragraph 32 of Plaintiffs’ Complaint.

22

33. Defendant admits the allegations contained in

23 paragraph 33 of Plaintiffs’ Complaint.

24

34. Defendant admits the allegations contained in

25 paragraph 34 of Plaintiffs’ Complaint.

26

35. Defendant is without sufficient information to either

-5-
ER 677

CasCea:s1e2-21:1726-6c8v-001507/81-8R/2C0J13-PAL DIDo:cu8m82e8n0t3385 DFikletEdn0tr5y/:1280/1-28 PPagaege6: o1f11o8f 92(847 of 928)

1 admit or deny, and therefore on that basis denies, the

2 allegation contained in paragraph 35 of Plaintiffs’ Complaint.

3

36. Defendant admits the allegations contained in

4 paragraph 36 of Plaintiffs’ Complaint.

5

37. Defendant is without sufficient information to either

6 admit or deny, and therefore on that basis denies, the

7 allegation contained in paragraph 37 of Plaintiffs’ Complaint.

8

38. Defendant is without sufficient information to either

9 admit or deny, and therefore on that basis denies, the

10 allegation contained in paragraph 38 of Plaintiffs’ Complaint.

11

39. Defendant is without sufficient information to either

12 admit or deny, and therefore on that basis denies, the

13 allegation contained in paragraph 39 of Plaintiffs’ Complaint.

14

40. Defendant is without sufficient information to either

15 admit or deny, and therefore on that basis denies, the

16 allegation contained in paragraph 40 of Plaintiffs’ Complaint.

17

41. Defendant is without sufficient information to either

18 admit or deny, and therefore on that basis denies, the

19 allegation contained in paragraph 41 of Plaintiffs’ Complaint.

20

42. Defendant is without sufficient information to either

21 admit or deny, and therefore on that basis denies, the

22 allegation contained in paragraph 42 of Plaintiffs’ Complaint.

23

43. Defendant is without sufficient information to either

24 admit or deny, and therefore on that basis denies, the

25 allegation contained in paragraph 43 of Plaintiffs’ Complaint.

26

44. Defendant admits that couples who marry in Nevada

-6-
ER 678

CasCea:s1e2-21:1726-6c8v-001507/81-8R/2C0J13-PAL DIDo:cu8m82e8n0t3385 DFikletEdn0tr5y/:1280/1-28 PPagaege7: o1f21o8f 92(848 of 928)

1 have their marriages solemnized pursuant to state law, NRS

2 122.010(1). Defendant further admits that the law in Nevada

3 provides no state-approved mechanism to solemnize a registered

4 domestic partnership. Defendant is without sufficient

5 information to either admit or deny, and therefore on that

6 basis denies, the remaining allegations contained in paragraph

7 44 of Plaintiffs’ Complaint.

8

45. Defendant is without sufficient information to either

9 admit or deny, and therefore on that basis denies, the

10 allegation contained in paragraph 45 of Plaintiffs’ Complaint.

11

46. Defendant is without sufficient information to either

12 admit or deny, and therefore on that basis denies, the

13 allegation contained in paragraph 46 of Plaintiffs’ Complaint.

14

47. Defendant is without sufficient information to either

15 admit or deny, and therefore on that basis denies, the

16 allegation contained in paragraph 47 of Plaintiffs’ Complaint.

17

48. Defendant is without sufficient information to either

18 admit or deny, and therefore on that basis denies, the

19 allegation contained in paragraph 48 of Plaintiffs’ Complaint.

20

49. Defendant is without sufficient information to either

21 admit or deny, and therefore on that basis denies, the

22 allegation contained in paragraph 49 of Plaintiffs’ Complaint.

23

50. Defendant is without sufficient information to either

24 admit or deny, and therefore on that basis denies, the

25 allegation contained in paragraph 50 of Plaintiffs’ Complaint.

26

51. Defendant is without sufficient information to either

-7-
ER 679

CasCea:s1e2-21:1726-6c8v-001507/81-8R/2C0J13-PAL DIDo:cu8m82e8n0t3385 DFikletEdn0tr5y/:1280/1-28 PPagaege8: o1f31o8f 92(849 of 928)

1 admit or deny, and therefore on that basis denies, the

2 allegation contained in paragraph 51 of Plaintiffs’ Complaint.

3

52. Defendant is without sufficient information to either

4 admit or deny, and therefore on that basis denies, the

5 allegation contained in paragraph 52 of Plaintiffs’ Complaint.

6

53. Defendant is without sufficient information to either

7 admit or deny, and therefore on that basis denies, the

8 allegation contained in paragraph 53 of Plaintiffs’ Complaint.

9

54. Defendant is without sufficient information to either

10 admit or deny, and therefore on that basis denies, the

11 allegation contained in paragraph 54 of Plaintiffs’ Complaint.

12

55. Defendant is without sufficient information to either

13 admit or deny, and therefore on that basis denies, the

14 allegation contained in paragraph 55 of Plaintiffs’ Complaint.

15

56. Defendant is without sufficient information to either

16 admit or deny, and therefore on that basis denies, the

17 allegation contained in paragraph 56 of Plaintiffs’ Complaint.

18

57. Defendant is without sufficient information to either

19 admit or deny, and therefore on that basis denies, the

20 allegation contained in paragraph 57 of Plaintiffs’ Complaint.

21

58. Defendant is without sufficient information to either

22 admit or deny, and therefore on that basis denies, the

23 allegation contained in paragraph 58 of Plaintiffs’ Complaint.

24

59. Defendant is without sufficient information to either

25 admit or deny, and therefore on that basis denies, the

26 allegation contained in paragraph 59 of Plaintiffs’ Complaint.

-8-
ER 680

CasCea:s1e2-21:1726-6c8v-001507/81-8R/2C0J13-PAL DIDo:cu8m82e8n0t3385 DFikletEdn0tr5y/:1280/1-28 PPagaege9: o1f41o8f 92(850 of 928)

1

60. Defendant is without sufficient information to either

2 admit or deny, and therefore on that basis denies, the

3 allegation contained in paragraph 60 of Plaintiffs’ Complaint.

4

61. Defendant is without sufficient information to either

5 admit or deny, and therefore on that basis denies, the

6 allegation contained in paragraph 61 of Plaintiffs’ Complaint.

7

62. Defendant is without sufficient information to either

8 admit or deny, and therefore on that basis denies, the

9 allegation contained in paragraph 62 of Plaintiffs’ Complaint.

10

63. Defendant is without sufficient information to either

11 admit or deny, and therefore on that basis denies, the

12 allegation contained in paragraph 63 of Plaintiffs’ Complaint.

13

64. Defendant is without sufficient information to either

14 admit or deny, and therefore on that basis denies, the

15 allegation contained in paragraph 64 of Plaintiffs’ Complaint.

16

65. Defendant is without sufficient information to either

17 admit or deny, and therefore on that basis denies, the

18 allegation contained in paragraph 65 of Plaintiffs’ Complaint.

19

66. Defendant is without sufficient information to either

20 admit or deny, and therefore on that basis denies, the

21 allegation contained in paragraph 66 of Plaintiffs’ Complaint.

22

67. Defendant is without sufficient information to either

23 admit or deny, and therefore on that basis denies, the

24 allegation contained in paragraph 67 of Plaintiffs’ Complaint.

25

68. Defendant is without sufficient information to either

26 admit or deny, and therefore on that basis denies, the

-9-
ER 681

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e0: 1o5f 1o8f 92(851 of 928)

1 allegation contained in paragraph 68 of Plaintiffs’ Complaint.

2

69. Defendant is without sufficient information to either

3 admit or deny, and therefore on that basis denies, the

4 allegation contained in paragraph 69 of Plaintiffs’ Complaint.

5

70. Defendant is without sufficient information to either

6 admit or deny, and therefore on that basis denies, the

7 allegation contained in paragraph 70 of Plaintiffs’ Complaint.

8

71. Defendant is without sufficient information to either

9 admit or deny, and therefore on that basis denies, the

10 allegation contained in paragraph 71 of Plaintiffs’ Complaint.

11

72. Defendant is without sufficient information to either

12 admit or deny, and therefore on that basis denies, the

13 allegation contained in paragraph 72 of Plaintiffs’ Complaint.

14

73. Defendant is without sufficient information to either

15 admit or deny, and therefore on that basis denies, the

16 allegation contained in paragraph 73 of Plaintiffs’ Complaint.

17

74. Defendant is without sufficient information to either

18 admit or deny, and therefore on that basis denies, the

19 allegation contained in paragraph 74 of Plaintiffs’ Complaint.

20

75. Defendant is without sufficient information to either

21 admit or deny, and therefore on that basis denies, the

22 allegation contained in paragraph 75 of Plaintiffs’ Complaint.

23

76. Defendant admits the allegation contained in

24 paragraph 76 of Plaintiffs’ Complaint.

25

77. Defendant admits the allegation contained in

26 paragraph 77 of Plaintiffs’ Complaint.

ER 682

-10-

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e1: 1o6f 1o8f 92(852 of 928)

1

78. Defendant is without sufficient information to either

2 admit or deny, and therefore on that basis denies, the

3 allegation contained in paragraph 78 of Plaintiffs’ Complaint.

4

79. Defendant is without sufficient information to either

5 admit or deny, and therefore on that basis denies, the

6 allegation contained in paragraph 79 of Plaintiffs’ Complaint.

7

80. Defendant is without sufficient information to either

8 admit or deny, and therefore on that basis denies, the

9 allegation contained in paragraph 80 of Plaintiffs’ Complaint.

10

81. Defendant is without sufficient information to either

11 admit or deny, and therefore on that basis denies, the

12 allegation contained in paragraph 81 of Plaintiffs’ Complaint.

13

82. Defendant is without sufficient information to either

14 admit or deny, and therefore on that basis denies, the

15 allegation contained in paragraph 82 of Plaintiffs’ Complaint.

16

83. Defendant is without sufficient information to either

17 admit or deny, and therefore on that basis denies, the

18 allegation contained in paragraph 83 of Plaintiffs’ Complaint.

19

84. Defendant is without sufficient information to either

20 admit or deny, and therefore on that basis denies, the

21 allegation contained in paragraph 84 of Plaintiffs’ Complaint.

22

85. Defendant is without sufficient information to either

23 admit or deny, and therefore on that basis denies, the

24 allegation contained in paragraph 85 of Plaintiffs’ Complaint.

25

CLAIM FOR RELIEF

26

86. Defendant is without sufficient information to either

ER 683

-11-

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e2: 1o7f 1o8f 92(853 of 928)

1 admit or deny, and therefore on that basis denies, the

2 allegation contained in paragraph 86 of Plaintiffs’ Complaint.

3

87. Defendant admits the allegation contained in

4 paragraph 87 of Plaintiffs’ Complaint.

5

88. Defendant admits the allegation with regard to the

6 Fourteenth Amendment of the United States Constitution

7 contained in the first sentence of paragraph 88 of Plaintiffs’

8 Complaint. Defendant is without sufficient information to

9 either admit or deny, and therefore on that basis denies, the

10 remaining allegations contained in paragraph 88 of Plaintiffs’

11 Complaint.

12

89. Defendant is without sufficient information to either

13 admit or deny, and therefore on that basis denies, the

14 allegation contained in paragraph 89 of Plaintiffs’ Complaint.

15

90. Defendant is without sufficient information to either

16 admit or deny, and therefore on that basis denies, the

17 allegation contained in paragraph 90 of Plaintiffs’ Complaint.

18

91. Defendant is without sufficient information to either

19 admit or deny, and therefore on that basis denies, the

20 allegation contained in paragraph 91 of Plaintiffs’ Complaint.

21

92. Defendant is without sufficient information to either

22 admit or deny, and therefore on that basis denies, the

23 allegation contained in paragraph 92 of Plaintiffs’ Complaint.

24

93. Defendant is without sufficient information to either

25 admit or deny, and therefore on that basis denies, the

26 allegation contained in paragraph 93 of Plaintiffs’ Complaint.

ER 684

-12-

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e3: 1o8f 1o8f 92(854 of 928)

1

94. Defendant is without sufficient information to either

2 admit or deny, and therefore on that basis denies, the

3 allegation contained in paragraph 94 of Plaintiffs’ Complaint.

4

95. Defendant is without sufficient information to either

5 admit or deny, and therefore on that basis denies, the

6 allegation contained in paragraph 95 of Plaintiffs’ Complaint.

7

96. Defendant is without sufficient information to either

8 admit or deny, and therefore on that basis denies, the

9 allegation contained in paragraph 96 of Plaintiffs’ Complaint.

10

97. Defendant is without sufficient information to either

11 admit or deny, and therefore on that basis denies, the

12 allegation contained in paragraph 97 of Plaintiffs’ Complaint.

13

98. Defendant is without sufficient information to either

14 admit or deny, and therefore on that basis denies, the

15 allegation contained in paragraph 98 of Plaintiffs’ Complaint.

16

99. Defendant is without sufficient information to either

17 admit or deny, and therefore on that basis denies, the

18 allegation contained in paragraph 99 of Plaintiffs’ Complaint.

19

100. Defendant is without sufficient information to either

20 admit or deny, and therefore on that basis denies, the

21 allegation contained in paragraph 100 of Plaintiffs’ Complaint.

22

101. Defendant is without sufficient information to either

23 admit or deny, and therefore on that basis denies, the

24 allegation contained in paragraph 101 of Plaintiffs’ Complaint.

25

102. Defendant is without sufficient information to either

26 admit or deny, and therefore on that basis denies, the

ER 685

-13-

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e4: 1o9f 1o8f 92(855 of 928)

1 allegation contained in paragraph 102 of Plaintiffs’ Complaint.

2

103. Defendant is without sufficient information to either

3 admit or deny, and therefore on that basis denies, the

4 allegation contained in paragraph 103 of Plaintiffs’ Complaint.

5

104. Defendant is without sufficient information to either

6 admit or deny, and therefore on that basis denies, the

7 allegation contained in paragraph 104 of Plaintiffs’ Complaint.

8

105. Defendant is without sufficient information to either

9 admit or deny, and therefore on that basis denies, the

10 allegation contained in paragraph 105 of Plaintiffs’ Complaint.

11

DECLARATORY AND INJUNCTIVE RELIEF

12

106. Defendant is without sufficient information to either

13 admit or deny, and therefore on that basis denies, the

14 allegation contained in paragraph 106 of Plaintiffs’ Complaint.

15

107. Defendant is without sufficient information to either

16 admit or deny, and therefore on that basis denies, the

17 allegation contained in paragraph 107 of Plaintiffs’ Complaint.

18

108. Defendant is without sufficient information to either

19 admit or deny, and therefore on that basis denies, the

20 allegation contained in paragraph 108 of Plaintiffs’ Complaint.

21

109. Defendant is without sufficient information to either

22 admit or deny, and therefore on that basis denies, the

23 allegation contained in paragraph 109 of Plaintiffs’ Complaint.

24

PRAYER FOR RELIEF

25

110. The prayer for relief, containing paragraphs A

26 through F, contains no allegations of fact requiring an answer.

ER 686

-14-

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e5: 2o0f 1o8f 92(856 of 928)

1

AFFIRMATIVE DEFENSES

2

FIRST AFFIRMATIVE DEFENSE

3

Plaintiffs' Complaint on file herein fails to state a

4 claim against this Defendant upon which relief may be granted,

5 as the county clerk has a ministerial duty to abide by the laws

6 of the State of Nevada and has no authority to disregard the

7 law.

8

SECOND AFFIRMATIVE DEFENSE

9

Plaintiffs' Complaint on file herein fails to state a

10 claim against this Defendant upon which relief may be granted,

11 as the county clerk has no discretion to issue marriage

12 licenses other than in compliance with Nevada law.

13

THIRD AFFIRMATIVE DEFENSE

14

Plaintiffs' Complaint on file herein fails to state a

15 claim against this Defendant upon which relief may be granted,

16 as the county clerk acted in good faith in performing her

17 duties in issuing marriage licenses only in conformity with

18 Nevada law.

19

FOURTH AFFIRMATIVE DEFENSE

20

This Court lacks subject matter jurisdiction over this

21 matter.

22

FIFTH AFFIRMATIVE DEFENSE

23

Defendant is entitled to immunity because the rights that

24 are alleged to be violated were not clearly established.

25

SIXTH AFFIRMATIVE DEFENSE

26

To the extent Plaintiffs seek an award of attorney’s fees

ER 687

-15-

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e6: 2o1f 1o8f 92(857 of 928)

1 against this defendant, such an award must be precluded based

2 on the fact that the county clerks are mandated by law to

3 comply with existing Nevada law with respect to issuing

4 marriage licenses.

5

SEVENTH AFFIRMATIVE DEFENSE

6

To the extent Plaintiffs seek an award of attorney’s fees

7 against this defendant, defendant has stated prior to filing

8 this answer that she does not intend to defend this lawsuit,

9 but agreed to be bound by the final order entered herein.

10

WHEREFORE, Defendants pray as follows:

11

1. That Plaintiffs take nothing by way of the Complaint

12 For Declaratory and Injunctive Relief; and,

13

2. That judgment be entered against Plaintiffs and in

14 favor of Defendants; and,

15

3. That the Court allow Defendant’s costs and a

16 reasonable attorney's fee; and,

17

4. That the Court grant Defendants such additional or

18 alternate relief as it deems just and proper.

19

Dated this 18th day of May, 2012.

20

RICHARD A. GAMMICK

District Attorney

21

22

By /s/ HERBERT B. KAPLAN

Herbert B. Kaplan

23

Deputy District Attorney

P. O. Box 30083

24

Reno, NV 89520-3083

(775) 337-5700

25

ATTORNEYS FOR DEFENDANT

26

AMY HARVEY, WASHOE COUNTY CLERK

ER 688

-16-

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e7: 2o2f 1o8f 92(858 of 928)

1

CERTIFICATE OF SERVICE

2

Pursuant to FRCP 5(b), I certify that I am an employee of

3 the Office of the District Attorney of Washoe County, over the

4 age of 21 years and not a party to nor interested in the within

5 action. I certify that on this date, I electronically filed a

6 true and correct copy of the foregoing ANSWER OF AMY HARVEY,

7 WASHOE COUNTY CLERK and which was electronically mailed to the

8 following:

9 D. Chris Albright
10 dca@albrightstoddard.com, cgrey@albrightstoddard.com

11 Rahi Azizi razizi@omm.com
12 Tara Borelli
13 tborelli@lambdalegal.org, stoy@lambdalegal.org, jfarnsworth@lambdalegal.org
14 Marek P. Bute
15 mbute@swlaw.com,mfull@swlaw.com,docket_las@swlaw.com, jmath@swlaw.com,nunzueta@swlaw.com
16 Carla Christofferson
17 cchristofferson@omm.com,kezell@omm.com

18 Melanie Cristol mcristol@omm.com
19 Jon W. Davidson
20 jdavidson@lambdalegal.org

21 Shelbi Day sday@lambdalegal.org
22 Kelly H Dove
23 kdove@swlaw.com,bsanderson@swlaw.com,DOCKET_LAS@swlaw.com

24 C. Wayne Howle whowle@ag.nv.gov,vbeavers@ag.nv.gov
25 Randal R. Munn
26 RMunn@carson.org

ER 689

CaCsea:s1e22-:11726-6cv8-0051708/1-8R/C20J1-3PAL DIoDc:u8m8e2n8t0358 FDilketdEn0t5r/y1:82/01-28 PaPgaeg1e8: 2o3f 1o8f 92(859 of 928)

1 Peter C Renn prenn@lambdalegal.org,stoy@lambdalegal.org
2 Dawn Sestito
3 dsestito@omm.com

4 Monte N Stewart stewart@belnaplaw.com,tkildow@belnaplaw.com,
5 cgtaylor@belnaplaw.com

6 I further certify that I deposited for mailing in the U. S.
7 Mails, with postage fully prepaid, a true and correct copy of
8 the foregoing in an envelope addressed to the following:
9

10 Craig G. Taylor, Esq.
11 Belnap Stewart Taylor & Morris PLLC 12550 W. Explorer Drive, Suite 100
12 Boise, ID 83713

13

14

Dated this 18th day of May, 2012.

15

16

/s/ MICHELLE FOSTER

MICHELLE FOSTER

17

18

19

20

21

22

23

24

25

26

ER 690

CasCe:a1s2e-21:71626-8cv-001507/188-/R2C01J3-PAL IDDo:c8u8m2e8n0t3384 DFkilteEdnt0r5y:/1280/-182 PPaaggee1: 2o4f 4of 92(860 of 928)
ER 691

CasCe:a1s2e-21:71626-8cv-001507/188-/R2C01J3-PAL IDDo:c8u8m2e8n0t3384 DFkilteEdnt0r5y:/1280/-182 PPaaggee2: 2o5f 4of 92(861 of 928)
ER 692

CasCe:a1s2e-21:71626-8cv-001507/188-/R2C01J3-PAL IDDo:c8u8m2e8n0t3384 DFkilteEdnt0r5y:/1280/-182 PPaaggee3: 2o6f 4of 92(862 of 928)
ER 693

CasCe:a1s2e-21:71626-8cv-001507/188-/R2C01J3-PAL IDDo:c8u8m2e8n0t3384 DFkilteEdnt0r5y:/1280/-182 PPaaggee4: 2o7f 4of 92(863 of 928)
ER 694

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1 JON W. DAVIDSON

TARA L. BORELLI 2 PETER C. RENN

3 SHELBI DAY (above counsel will comply with LR IA 10-2 within 10 days)

4 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

3325 Wilshire Boulevard, Suite 1300 5 Los Angeles, California 90010

Email: jdavidson@lambdalegal.org

6

tborelli@lambdalegal.org

7

prenn@lambdalegal.org

sday@lambdalegal.org

8 Tel: 213.382.7600 | Fax: 213.351.6050

9 CARLA CHRISTOFFERSON

10

DAWN SESTITO MELANIE CRISTOL

11 RAHI AZIZI (above counsel will comply with LR IA 10-2 within 10 days)

12 O’MELVENY & MYERS LLP

400 South Hope Street 13 Los Angeles, California 90071

14

Email: cchristofferson@omm.com dsestito@omm.com

15

mcristol@omm.com

razizi@omm.com

16 Tel: 213.430.6000 | Fax: 213.430.6407

17 KELLY H. DOVE (Nevada Bar No. 10569)
MAREK P. BUTE (Nevada Bar No. 09989) 18 SNELL & WILMER LLP
19 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169
20 Email: kdove@swlaw.com mbute@swlaw.com
21 Tel: 702.784.5200 | Fax: 702.784.5252

22 Attorneys for Plaintiffs 23

UNITED STATES DISTRICT COURT

24

DISTRICT OF NEVADA

25 BEVERLY SEVCIK and MARY
26 BARANOVICH; ANTIOCO CARRILLO and THEODORE SMALL; KAREN
27 GOODY and KAREN VIBE; FLETCHER
WHITWELL and GREG FLAMER; 28 MIKYLA MILLER and KATRINA

No. ________________________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

ER 695

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1 MILLER; ADELE TERRANOVA and

TARA NEWBERRY; CAREN 2 CAFFERATA-JENKINS and FARRELL

3 CAFFERATA-JENKINS; and MEGAN LANZ and SARA GEIGER,

4 Plaintiffs,

5 v.

6 BRIAN SANDOVAL, in his official capacity

7 as Governor of the State of Nevada; DIANA

ALBA, in her official capacity as Clerk for 8 Clark County; AMY HARVEY, in her

9

official capacity as Clerk for Washoe County; and ALAN GLOVER, in his official

10 capacity as Clerk-Recorder for Carson City,

11

Defendants

12

13

Plaintiffs Beverly Sevcik and Mary Baranovich; Antioco Carrillo and Theodore Small;

14 Karen Goody and Karen Vibe; Fletcher Whitwell and Greg Flamer; Mikyla Miller and Katrina

15 Miller; Adele Terranova and Tara Newberry; Caren Cafferata-Jenkins and Farrell Cafferata-

16 Jenkins; Megan Lanz and Sara Geiger, by and through their attorneys, file this Complaint against

17 Defendants, Brian Sandoval, Diana Alba, Amy Harvey, and Alan Glover, and allege as follows:

18

INTRODUCTION

19

1. Plaintiffs are eight loving, committed same-sex couples. They bring this action,

20 pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief for the violation of their

21 rights under the Fourteenth Amendment to the United States Constitution caused by their being

22 denied the right to marry in the State of Nevada (the “State”). The State has instead relegated

23 these couples to the inferior and novel status of registered domestic partnerships, and has

24 disrespected the marriages some of them have entered in other jurisdictions, because they are

25 lesbians and gay men in same-sex relationships.

26

2. Civil marriage plays a unique role in society as the universally recognized and

27 celebrated hallmark of a couple’s commitment to build family life together. Plaintiffs have

28 formed committed, enduring family bonds equally worthy of the respect afforded by the State to

ER 696

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1 different-sex couples through access to the status of marriage. Yet the State, without any

2 adequate justification, has deprived lesbian and gay Nevadans of the right to marry, or to have

3 their valid marriages from other jurisdictions recognized as marriages, based solely on their

4 sexual orientation and sex. This discrimination (referred to herein as the State’s “marriage ban”)

5 is enshrined both in Nevada statutes, and in article 1, section 21 of the Nevada Constitution,

6 which limits marriage solely to couples composed of “a male and female.”

7

3. After barring lesbians and gay men from civil marriage, the State created an

8 alternative status that they are allowed to enter that, with only a few exceptions, provides “the

9 same rights, protections and benefits” and “the same responsibilities, obligations and duties . . . as

10 are granted to and imposed upon spouses.” Nev. Rev. Stat. § 122A.200(1)(a). The State’s

11 selective bar to access to marriage—despite a public policy recognizing that same-sex couples

12 merit the same family, parenting, and relationship rights and responsibilities as different-sex

13 spouses—serves no purpose other than to impose a stigmatizing government label of inferiority

14 upon lesbians and gay men and their relationships and denies Plaintiffs equal treatment based on

15 their sexual orientation and sex.

16

4. This exclusion from marriage and relegation to a second-class status inflicts

17 serious and irreparable harms upon Plaintiffs and other same-sex couples and their children.

18 Plaintiffs seek equal access to the institution of marriage as the only means to fully eliminate the

19 myriad harms inflicted by the State on them and other same-sex couples.

20

PARTIES

21

A. Plaintiffs

22

5. Plaintiffs Beverly Sevcik and Mary Baranovich are lesbian individuals who are a

23 committed same-sex couple residing in Carson City, Nevada.

24

6. Plaintiffs Antioco Carrillo and Theodore Small are gay male individuals who are a

25 committed same-sex couple residing in Las Vegas, Nevada.

26

7. Plaintiffs Karen Goody and Karen Vibe are lesbian individuals who are a

27 committed same-sex couple residing in Reno, Nevada.

28

ER 697

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1

8. Plaintiffs Fletcher Whitwell and Greg Flamer are gay male individuals who are a

2 committed same-sex couple residing in Las Vegas, Nevada.

3

9. Plaintiffs Mikyla Miller and Katrina Miller are lesbian individuals who are a

4 committed same-sex couple residing in Reno, Nevada.

5

10. Plaintiffs Adele Terranova and Tara Newberry are lesbian individuals who are a

6 committed same-sex couple residing in Las Vegas, Nevada.

7

11. Plaintiffs Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins (full name, Janet

8 Farrell Cafferata-Jenkins) are lesbian individuals who are a committed same-sex couple residing

9 in Carson City, Nevada.

10

12. Plaintiffs Megan Lanz and Sara Geiger are lesbian individuals who are a

11 committed same-sex couple residing in Las Vegas, Nevada.

12

B. Defendants

13

13. Defendant Brian Sandoval is sued in his official capacity as Governor of the State

14 of Nevada. As decreed by article 5, sections 1 and 7 of the Nevada Constitution, Governor

15 Sandoval is vested with the executive power of the State and has the duty to see that the State’s

16 laws are faithfully executed, including the state’s marriage ban. Governor Sandoval is a person

17 within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times

18 relevant to this complaint.

19

14. Diana Alba is sued in her official capacity as the County Clerk and Commissioner

20 of Civil Marriages for Clark County, Nevada. Ms. Alba’s duties include issuing marriage

21 licenses, solemnizing marriages, certifying other persons who may solemnize a marriage in the

22 county, and maintaining records relating to marriage licenses. Ms. Alba must ensure compliance

23 through all of these functions with relevant Nevada laws, including those that exclude same-sex

24 couples from marriage. Ms. Alba is a person within the meaning of 42 U.S.C. § 1983 and was

25 acting under color of state law at all times relevant to this complaint.

26

15. Amy Harvey is sued in her official capacity as the County Clerk and

27 Commissioner of Civil Marriages for Washoe County, Nevada. Ms. Harvey’s duties include

28 issuing marriage licenses, solemnizing marriages, certifying other persons who may solemnize a

ER 698

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1 marriage in the county, and maintaining records relating to marriage licenses. Ms. Harvey must

2 ensure compliance through all of these functions with relevant Nevada laws, including those that

3 exclude same-sex couples from marriage. Ms. Harvey is a person within the meaning of 42

4 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.

5

16. Alan Glover is sued in his official capacity as the Clerk-Recorder for Carson City,

6 Nevada. As the Clerk-Recorder, Mr. Glover oversees the operations of the city’s Marriage

7 Bureau and his duties include issuing marriage licenses, certifying other persons who may

8 solemnize a marriage in the city, and maintaining records relating to marriage licenses. Mr.

9 Glover must ensure compliance through all of these functions with relevant Nevada laws,

10 including those that exclude same-sex couples from marriage. Mr. Glover is a person within the

11 meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this

12 complaint.

13

17. Each of the Defendants, and those subject to their supervision, direction, and

14 control, intentionally performed, participated in, aided and/or abetted in some manner the acts

15 alleged herein, proximately caused the harm alleged herein, and will continue to injure Plaintiffs

16 irreparably if not enjoined.

17

JURISDICTION AND VENUE

18

18. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the

19 deprivation under color of state law of rights secured by the United States Constitution.

20

19. This Court has original jurisdiction over the subject matter of this action pursuant

21 to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution

22 and laws of the United States.

23

20. Venue is proper in this Court under 28 U.S.C. § 1391(b) because all Defendants

24 reside within the District and State of Nevada, and a substantial part of the events that gave rise to

25 Plaintiffs’ claims took place within the District of Nevada.

26

21. This Court has the authority to enter a declaratory judgment and to provide

27 preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of

28 Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.

ER 699

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1

22. This Court has personal jurisdiction over Defendants because they are domiciled in

2 the State.

3

STATEMENT OF FACTS

4

23. Plaintiffs are residents of Nevada who experience the same joys and shoulder the

5 same challenges of family life as their heterosexual neighbors, co-workers, and other community

6 members who freely may marry. Plaintiffs are productive, contributing citizens who support their

7 families and nurture their children, but must do so without the same dignity and respect afforded

8 by the State to other families through access to the universally celebrated status of marriage.

9 Instead, Plaintiffs are consigned to registered domestic partnership, which lacks the same

10 reputation, standing in the community, and traditions and prestige as marriage. The State’s

11 exclusion of Plaintiffs from marriage, relegating them to the second-class status of registered

12 domestic partnership, subjects Plaintiffs to legal vulnerability and related stress, while depriving

13 them and their children of equal dignity and security. Through its constitutional and statutory

14 marriage bans, and its relegation of same-sex couples to the lesser registered domestic partnership

15 status, the State sends a purposeful message that the State views lesbians and gay men and their

16 children as second-class citizens who are undeserving of the legal sanction, respect, and support

17 that different-sex spouses and their families enjoy.

18

A. Plaintiffs’ Attempts to Marry and Marriages in Other Jurisdictions.

19

24. But for the fact that they are of the same-sex, each unmarried Plaintiff couple is

20 legally qualified to marry under the laws of Nevada and wishes to marry in the State. Each

21 Plaintiff is over the requisite age of 18, no Plaintiff is precluded from marriage as a result of being

22 closely related to his or her life partner, and no Plaintiff is recognized by the State as having

23 another spouse. Nev. Rev. Stat. § 122.020(1).

24

25. On April 3, 2012, Beverly Sevcik and Mary Baranovich appeared in person at the

25 Carson City Marriage Bureau in Carson City, Nevada to seek a marriage license. They both were

26 prepared to present valid forms of identification to prove their names and ages, pay the required

27 $75 fee, and complete a marriage application. When the couple requested a marriage license, the

28 employee working behind the counter stated “You have to go to the Secretary of State’s office to

ER 700

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1 register as domestic partners, we don’t do that here.” When Beverly clarified that they had

2 already registered as domestic partners in Nevada and wanted to get a marriage license, the

3 employee refused their request. Beverly and Mary accordingly were denied the opportunity to

4 obtain a marriage license by an employee of Defendant Glover based solely on Nevada’s

5 prohibition on marriage for same-sex couples and Plaintiffs’ respective sex and sexual

6 orientation.

7

26. On April 6, 2012, Antioco Carrillo and Theodore Small (“Theo”) appeared in

8 person at the Marriage Bureau for the Office of the Clerk for Clark County in Las Vegas, Nevada

9 to seek a marriage license. They both were prepared to present valid forms of identification to

10 prove their names and ages, pay the required $60 fee, and complete a marriage application. As

11 they approached the counter to apply for a marriage license they saw a sign indicating that

12 applicants must be a “bride and groom only.” Antioco and Theodore asked an agent or employee

13 of Defendant Alba for a marriage license application, and she responded that the couple would

14 have to contact the Secretary of State to register as domestic partners. When Antioco and Theo

15 indicated that they had already registered as domestic partners and wished to marry, she said they

16 could not because the state does not issue marriage licenses for same-sex couples. Defendant

17 Alba’s agent or employee denied the couple’s request for a marriage license, based solely on

18 Nevada’s prohibition on marriage for same-sex couples and Plaintiffs’ respective sex and sexual

19 orientation.

20

27. On April 1, 2012, Karen Goody (“Karen G.”) and Karen Vibe (“Karen V.”)

21 appeared in person at the Washoe County Marriage Bureau in Reno, Nevada to seek a marriage

22 license. They both were prepared to present valid forms of identification to prove their names

23 and ages, pay the required $60 fee, and complete a marriage application. They were barred,

24 however, from even going through security to enter the Marriage Bureau. When they entered the

25 building a security officer asked about the purpose of their visit, and the couple said that they

26 wanted to apply for a marriage license for the two of them to marry one another. The security

27 officer then asked them “Do you have a man with you?” When Karen V. said no and explained

28 that she and Karen G. wished to obtain a marriage license, the security guard told them that they

ER 701

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1 could not. Karen V. asked if they could at least fill out the marriage license application, and an

2 employee of Defendant Harvey who was standing behind the Marriage Bureau counter responded

3 “Two women can’t apply.” The security officer added that it has to “be between a man and a

4 woman.” The employee behind the counter then indicated that the couple’s option was to “apply

5 for a civil partnership with the Secretary of State.” Karen G. and Karen V. accordingly were

6 denied the opportunity to obtain a marriage license by an employee of Defendant Harvey based

7 solely on Nevada’s prohibition on marriage for same-sex couples and Plaintiffs’ respective sex

8 and sexual orientation.

9

28. On April 4, 2012, Fletcher Whitwell and Greg Flamer appeared in person at the

10 Marriage Bureau for the Office of the Clerk for Clark County in Las Vegas, Nevada to seek a

11 marriage license. They both were prepared to present valid forms of identification to prove their

12 names and ages, pay the required $60 fee, and complete a marriage application. When the couple

13 took their application for a marriage license to the clerk, who is an agent or employee of

14 Defendant Alba, they were directed to the Secretary of State’s website to register as domestic

15 partners. When Greg clarified that they were there to get a marriage license, the clerk denied

16 their request, based solely on Nevada’s prohibition on marriage for same-sex couples and

17 Plaintiffs’ respective sex and sexual orientation.

18

29. Mikyla Miller and Katrina Miller were validly married in another jurisdiction and

19 seek through this suit to end the State’s current denial of recognition of their marriage on the

20 ground that it is a marriage entered by two individuals of the same sex.

21

30. Adele Terranova and Tara Newberry were validly married in another jurisdiction

22 and seek through this suit to end the State’s current denial of recognition of their marriage on the

23 ground that it is a marriage entered by two individuals of the same sex.

24

31. Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins were validly married in

25 another jurisdiction and seek through this suit to end the State’s current denial of recognition of

26 their marriage on the ground that it is a marriage entered by two individuals of the same sex.

27

28

ER 702

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1

32. Megan Lanz and Sara Geiger were validly married in another jurisdiction and seek

2 through this suit to end the State’s current denial of recognition of their marriage on the ground

3 that it is a marriage entered by two individuals of the same sex.

4

B. Nevada’s Exclusion of Same-Sex Couples from Marriage and Consignment of

Same-Sex Couples to an Inferior Registered Domestic Partnership Status. 5

6

33. Nevada Revised Statutes § 122.020(1) restricts marriage to a male and a female

7 couple.

8

34. In 2000, a group called the Coalition for the Protection of Marriage collected the

9 number of signatures required to place a proposed amendment to Nevada’s Constitution on the

10 general election ballot that year. The proposed amendment provided that “Only a marriage

11 between a male and female person shall be recognized and given effect in this state.” The voters

12 approved the measure biennially (during the 2000 and 2002 general elections), as required to

13 amend the state constitution, pursuant to Nev. Const. art. 1, § 21.

14

35. Many of the campaign messages used to persuade voters to amend the constitution

15 relied on false, stigmatizing messages that same-sex couples are inferior to different-sex couples,

16 and that both the institution of marriage and children need to be protected from same-sex couples.

17 One 2002 flyer, for example, urged voters to adopt the constitutional amendment by saying “Let’s

18 not experiment with Nevada’s children.” Other campaign material falsely suggested that

19 allowing same-sex couples to marry would lead to schools teaching “explicit homosexual sex

20 acts” and “promot[ing] homosexuality.”

21

36. In 2009, the Nevada state legislature enacted a law entitled the “Nevada Domestic

22 Partnership Act” to allow eligible same-sex and different-sex couples who have “chosen to share

23 one another’s lives in an intimate and committed relationship of mutual caring” to register with

24 the state as domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010 et seq. Couples are

25 eligible to register if they share a common residence, are not married or in a domestic partnership

26 with a different person, are not related by blood in a way that would prevent them from being

27 married to each other in the State, are at least 18 years of age, and are competent to consent to the

28 domestic partnership. Nev. Rev. Stat. § 122A.100. The law took effect on October 1, 2009.

ER 703

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1

37. Pursuant to Nevada Revised Statutes § 122A.200(1)(a), and with only a few

2 exceptions described below, registered domestic partners “have the same rights, protections and

3 benefits, and are subject to the same responsibilities, obligations and duties under law, whether

4 derived from statutes, administrative regulations, court rules, government policies, common law

5 or any other provisions or sources of law, as are granted to and imposed upon spouses.” That

6 statute also provides that former domestic partners “have the same rights, protections and

7 benefits, and are subject to the same responsibilities, obligations and duties under law, whether

8 derived from statutes, administrative regulations, court rules, government policies, common law

9 or any other provisions or sources of law, as are granted to and imposed upon former spouses,”

10 and that a surviving domestic partner “has the same rights, protections and benefits, and is subject

11 to the same responsibilities, obligations and duties under law, whether derived from statutes,

12 administrative regulations, court rules, government policies, common law or any other provisions

13 or sources of law, as are granted to and imposed upon a widow or a widower.” Registered

14 domestic partners enjoy rights and responsibilities related to, for example, pre-marital

15 agreements, Nev. Rev. Stat. § 123A.010 et seq.; postnuptial agreements, Nev. Rev. Stat. §

16 123.070 et seq.; community property and community debt, Nev. Rev. Stat. § 123.220 et seq.;

17 dissolution of the relationship in family court, Nev. Rev. Stat. § 125.010 et seq.; and spousal

18 support, Nev. Rev. Stat. § 125.150 et seq.

19

38. The law expressly provides that the rights and responsibilities of registered

20 domestic partners “with respect to a child of either of them are the same as those of spouses.”

21 Nev. Rev. Stat. § 122A.200(1)(d). The State thus treats same-sex couples who are registered

22 domestic partners as equal to different-sex spouses for the full spectrum of parenting obligations

23 and protections. For example, as is true for different-sex spouses, both members of a registered

24 domestic partnership are presumed parents of a child born to a domestic partner during the

25 domestic partnership, Nev. Rev. Stat. § 126.051. The State also treats registered domestic

26 partners in the same manner as spouses with respect to allocation of child custody and visitation,

27 Nev. Rev. Stat. § 125.450 et seq. and Nev. Rev. Stat. § 125C.010 et seq.; child support, Nev. Rev.

28

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1 Stat. § 125B.020 et seq.; and access to joint and step-parent adoption, Nev. Rev. Stat. § 127.010

2 et seq.

3

39. Although registered domestic partnership and civil marriage entail substantially

4 similar rights and responsibilities, notable differences remain between the two statuses. Because

5 of these differences, coupled with the stigma of exclusion and of being branded by government as

6 inferior, same-sex couples and their children suffer both tangible and dignitary harms, all of

7 which are of constitutional dimension.

8

40. The status of marriage has unique social significance and recognition. Without

9 access to the familiar language and legal label of marriage, Plaintiffs are unable instantly or

10 adequately to communicate to others the depth and permanence of their commitment, or to obtain

11 respect for that commitment as others do simply by invoking their married status.

12

41. Plaintiffs’ exclusion from marriage frustrates their life goals and dreams, their

13 personal happiness, and their self-determination. For example, Plaintiffs Antioco Carrillo and

14 Theo Small have family and friends eagerly awaiting the day that they can attend the couple’s

15 wedding. Antioco’s family sees marriage as the honorable way to respect one’s life partner and

16 the couple’s intentions for the future. He is disheartened that the law bars him from the state-

17 sanctioned ceremony and ritual that means so much to his loved ones. As Plaintiff Beverly

18 Sevcik said of her life partner Mary Baranovich, “We’ve been together for almost 41 years.

19 We’ve seen each other through thick and thin, in sickness and in health. After four decades of

20 sharing a life together, all we want is to commemorate our love for each other in the same way as

21 other couples, through marriage.”

22

42. The substantive and dignitary inequities imposed on committed same-sex couples

23 include particular harms for same-sex couples’ children, who are equally deserving of the

24 stability, permanence, and legitimacy that children of different-sex spouses enjoy. Civil marriage

25 affords official sanctuary to the family unit, offering parents and children a familiar and public

26 means of demonstrating to third parties a legal basis for the parent-child relationship. By denying

27 same-sex couples marriage, the State reinforces the view held by some that the family bonds that

28 tie same-sex parents and their children are less consequential, enduring, and meaningful than

ER 705

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1 those of different-sex parents and their children. Same-sex parents and their children thus are

2 deprived of the family security that inheres in a ready and familiar method of communicating to

3 others the significance and permanence of their familial relationships. Same-sex couples and

4 their children accordingly must live with the vulnerability and stress inflicted by the ever-present

5 possibility that others may question their familial relationship—in social, educational, and

6 medical settings and in moments of crisis—in a way that spouses can avoid by simple reference

7 to being married.

8

43. Children from a young age understand that marriage signifies an enduring family

9 unit, and likewise understand when the State has deemed a class of families as less worthy than

10 other families, undeserving of marriage, and not entitled to the same societal recognition and

11 support as other families. The State has no adequate interest to justify marking the children of

12 same-sex couples, including the children of Plaintiffs Fletcher Whitwell and Greg Flamer, Adele

13 Terranova and Tara Newberry, Caren and Farrell Cafferata-Jenkins, and Megan Lanz and Sara

14 Geiger, and the expected daughter of Mikyla and Katrina Miller, with a badge of inferiority that

15 invites disrespect in school, on the playground, and in every other sphere of their lives.

16

44. Couples who marry in Nevada have their marriages solemnized pursuant to state

17 law, Nev. Rev. Stat. § 122.010(1), but the law provides no state-approved mechanism to

18 solemnize a registered domestic partnership, Nev. Rev. Stat. § 122A.110. By solemnizing only

19 marriages and not registered domestic partnerships, the State sends a message that marital

20 commitments are preferred and are more significant.

21

45. The State refuses same-sex couples the same opportunity to celebrate their

22 marriage with official State sanction, which can negatively affect how their family members and

23 others view the couples’ relationship. Same-sex couples instead must register as domestic

24 partners by filing a notarized form with the Secretary of State, Nev. Rev. Stat. § 122A.100, a

25 process not unlike that required to license a business, Nev. Rev. Stat. § 76.100; to apply for

26 appointment as a notary, Nev. Rev. Stat. § 240.010; or to register as an athlete’s agent, Nev. Rev.

27 Stat. § 398.452. By treating same-sex couples as unworthy of state-sanctioned solemnization, the

28

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1 State denies them the dignity, respect, and stature afforded to different-sex couples who can

2 marry.

3

46. Nevada law also fails to afford registered domestic partners the same streamlined

4 process for one partner to adopt the other’s surname, an important rite for many couples to signify

5 to themselves, their children, and the community that they are forming a family. Unlike different-

6 sex spouses, who can effect a name change through the federal Social Security Administration

7 and Nevada Department of Motor Vehicles with a marriage certificate, registered domestic

8 partners instead must obtain a court-ordered name change. This requires same-sex couples who

9 wish to adopt a family name at the time that they enter into a legal relationship to file a verified

10 petition in state court certifying that they are neither a felon nor attempting to defraud creditors,

11 and to publish notice of the requested name change in a newspaper. Nev. Rev. Stat. §§ 41.270,

12 41.280. This process not only requires time and expense, but also imposes the demeaning burden

13 of publicly proving to others that one is not engaging in criminal or fraudulent activity before the

14 name change can be granted, which is not required of different-sex spouses.

15

47. The government is a powerful teacher of discrimination to others. Bearing the

16 imprimatur of the government, Nevada’s statutory and constitutional marriage ban, which

17 relegates same-sex couples and their children to the unfamiliar and lesser status of domestic

18 partnership, not only proliferates confusion regarding the legal rights of committed same-sex

19 couples, but also causes others to follow the government’s example in discriminating against

20 them. Many private entities defer to the State’s bestowment of marital status in defining “family”

21 for purposes of an array of important benefits, often resulting in the exclusion of same-sex

22 couples and their children from important safety nets such as private employer-provided health

23 insurance for family members. The State also encourages disrespect of committed same-sex

24 couples and their children by others in workplaces, schools, businesses, and other major arenas of

25 life, in ways that would be less likely to occur and more readily corrected if marriage were

26 available to same-sex couples.

27

48. Plaintiffs do not challenge the inclusion of different-sex partners in the State’s

28 domestic partnership law. Different-sex couples, however, have two options for protecting their

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1 families: marriage, which communicates a status with deep social significance that is readily

2 understood and respected, and the novel alternative status of registered domestic partnership. In

3 contrast, committed same-sex couples are denied that option and relegated to the latter, less-

4 respected status.

5

49. Additionally, marriages entered by different-sex spouses in other jurisdictions

6 regularly are honored as marriages by the State, without any additional steps required. The State

7 refuses, however, to recognize marriages entered by same-sex spouses in other jurisdictions as

8 marriages. Instead, a same-sex couple’s marriage may only be recognized as a registered

9 domestic partnership and only if the same-sex couple pays the fee required of couples registering

10 as domestic partners, a step that no different-sex spouses need undertake. Nev. Rev. Stat. §

11 122A.500.

12

C. Plaintiffs Are Similarly Situated To Different-Sex Nevada Couples In All

Material Respects And Are Injured By The State’s Denial of Marriage

13

Equality.

14

50. Plaintiffs are loving and devoted same-sex couples who have pledged their

15 commitment to love and to cherish one another, but the State denies them the ability to make the

16 same state-sanctioned commitment to each other as spouses do through civil marriage.

17

Plaintiffs Beverly Sevcik and Mary Baranovich

18

51. Plaintiffs Beverly Sevcik, age 73, and Mary Baranovich, age 76, are a lesbian

19 couple residing in Carson City, Nevada. They are proud grandmothers to their several

20 grandchildren and will celebrate their forty-first year together as a couple in October of this year.

21

52. Beverly and Mary did not dream when they began their relationship decades ago

22 that they might someday identify openly as a couple. When Beverly and Mary committed their

23 lives to each other on October 2, 1971 and bought rings to signify their relationship, they were

24 careful not to purchase matching rings for fear of having their relationship discovered. They

25 worried about facing discrimination commonly visited upon lesbians and gay men at that time,

26 such as harassment from their neighbors, being fired from their jobs, and potentially losing

27 Beverly’s children—then ages eight, ten, and twelve—whom they were raising together.

28

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1

53. Mary had always known that she was different from other women, but did not

2 learn that she was gay until she took an “abnormal psychology” college class in the mid-1950s.

3 Being gay was still understood as a mental illness at that time, and she was taught that it was

4 abnormal and unhealthy. She recalls vividly that when she began going to bars that quietly

5 catered to lesbians—one of the only places lesbians could associate with each other in the

6 1950s—police routinely would raid the facilities with their nightsticks drawn. Although Beverly

7 and Mary could not have imagined when they first fell in love that same-sex couples might

8 someday be permitted to marry, they have come to wonder why their decades of commitment

9 cannot earn them that honored status. Mary felt deeply hurt by messages from the campaign to

10 amend Nevada’s constitution that allowing same-sex couples to marry would hurt the marriages

11 of heterosexuals because she cannot understand how her lifelong commitment to Beverly harms

12 others.

13

54. Beverly and Mary go to all of their medical appointments together and often have

14 to confront the question of how to identify themselves on hospital and doctor’s office forms.

15 They are frustrated that not even four decades of family life together will allow them to check the

16 only box that feels fitting: “married.”

17

Plaintiffs Antioco Carrillo and Theodore Small

18

55. Plaintiffs Antioco Carrillo, age 44, and Theo Small, age 43, are a gay male couple

19 residing in Las Vegas, Nevada. Antioco is the executive director of a non-profit organization that

20 provides support and advocacy for adults and children living with HIV/AIDS in southern Nevada.

21 Theo is a teacher and has worked in the same school district for nearly two decades. Theo was

22 recently nominated as a Classroom Superhero, as part of a project created by the National

23 Education Association that allows parents, students, and community members to show support to

24 educators. Antioco and Theo have known each other since the mid-1990s through mutual

25 community involvement. They have been in a loving, committed relationship for more than five

26 years and have registered as domestic partners in Nevada.

27

56. Antioco and Theo wish to marry because they love each other and are committed

28 to one another for life. Antioco knows that Theo is “the one” for him, because Antioco cannot

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1 see himself with anyone else. For Theo, Antioco is the essential ingredient that allows Theo to be

2 his “best self.” Each knows that the other will always be there for him, no matter what happens.

3

57. In 2010, in the middle of a bank lobby, the two of them raised their right hands

4 before a notary public in order to complete a domestic partnership registration form, which they

5 filed with the Secretary of State. It was a quiet and sterile process. When friends asked why the

6 couple did not have a wedding-like ceremony to celebrate their registration, they explained that to

7 do so would, for them, feel inauthentic. They do not want something “like” a wedding; they want

8 a wedding. As Antioco puts it, he does not want the crumbs of a full life; he wants for them to

9 live a full life. They both long for the day when they can invite their family and friends to bear

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

11 Nevada are able to do, through marriage.

12

Plaintiffs Karen Goody and Karen Vibe

13

58. Plaintiffs Karen G., age 51, and Karen V., age 37, are a lesbian couple residing in

14 Reno, Nevada. Karen G. works as a sales agent for a medical supply company, and Karen V. is a

15 financial advisor. Karen V. also is a percussionist with the Reno Philharmonic Orchestra and

16 mentors youth through a philharmonic program called Discovery Music. Karen G. and Karen V.

17 have been in a loving, committed relationship since meeting during the summer of 2005. In

18 December of 2005, Karen V. asked Karen G. to marry her, and they have been engaged ever since.

19 They have not registered as domestic partners with the State because they do not want to enter into

20 a second-class status that brands their relationship as “less than” others. As Karen V. describes it,

21 when she proposed to Karen G., her question was “Will you marry me?” and not “Will you enter a

22 secondary status with me?”

23

59. Marriage has played a significant role in both women’s families. Karen G.’s

24 parents were married for 50 years before her father passed away, and Karen V.’s for more than 40

25 years. The couple anxiously await the day that they can have such a state-sanctioned wedding that

26 communicates to others the same depth of commitment as their parents’ marriages. Karen V. is so

27 proud of their relationship that she wants to “tell the world about it,” but is frustrated not to have

28 access to the language that readily expresses their lifelong commitment such as “spouse” or

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1 “wife.” Without these terms, the couple struggles to explain their relationship to others, including

2 at the networking events they often attend for work. They frequently have to correct others’

3 confusion about whether they are business partners instead of life partners. They find the ongoing

4 need to explain their relationship stressful and belittling when the State allows others to describe

5 their relationships through one word instantly understood by others: marriage.

6

Plaintiffs Fletcher Whitwell and Greg Flamer

7

60. Fletcher Whitwell, age 37, and Greg Flamer, age 39, are a gay male couple

8 residing in Las Vegas, Nevada. Fletcher and Greg have been in a loving, committed relationship

9 for 14 years and have registered as domestic partners in Nevada. Both share a passion for

10 advancing child welfare. Greg helps find homes for abused and neglected children in his position

11 as a licensing supervisor with the Clark County Department of Family Services. Fletcher, an

12 advertising executive, serves on the board of a non-profit literacy program that distributes books

13 to schools in southern Nevada. Fletcher also is an active member of a foundation engaged in an

14 anti-bullying campaign, which was launched in 2010 after a surge in reported suicides among gay

15 teens. Fletcher and Greg met in 1998 and instantly connected because of their mutual interest in

16 sports, travel, music, and, most importantly, family and friends. The couple moved to Las Vegas

17 in 2006 so that Fletcher could pursue his current job.

18

61. In 2011, Fletcher and Greg welcomed a baby girl,

into their

19 family through adoption. Fletcher and Greg share the typical responsibilities and joys of

20 parenting a young child: they feed, bathe, and clothe her; they teach her to walk and to recognize

21 different shapes and colors; they play peek-a-boo with her and take her to visit her grandparents;

22 they care for her when she’s sick; they read her bedtime stories and rock her to sleep at night.

23 Fletcher and Greg wish to marry for their daughter’s sake as well as for their own. Fletcher and

24 Greg worry that, as

grows older, she will be deprived of a sense of normalcy and may

25 feel socially outcast because she will absorb the message she receives from her government that

26 her parents are not worthy of marriage. They hope that, one day,

can walk down the aisle

27 at their wedding as their flower girl and that she will understand that the love and commitment

28

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1 her parents feel for one another—and for their family—is as great as that felt by other couples

2 who currently may marry.

3

Plaintiffs Mikyla Miller and Katrina Miller

4

62. Plaintiffs Mikyla Miller, age 29, and Katrina Miller (“Katie”), age 27, are a lesbian

5 couple residing in Reno, Nevada. Mikyla is a recent law school graduate who works part-time

6 with a non-profit agency serving low-income clients and part-time at a restaurant to make ends

7 meet. Katie is working on a Ph.D. in English at the University of Nevada, Reno. Shortly after

8 they began dating in 2004, they each knew that the other was “the one,” and have been a

9 committed, loving couple ever since. They married in California on June 17, 2008 and have

10 registered as domestic partners in both Nevada and California. Mikyla adopted Katie’s surname

11 and is carrying the couple’s first child, which is due in July. As part of a tradition in Katie’s

12 family, their daughter will be named

making her the sixth generation in

13 Katie’s family to adopt the middle name “Love.”

14

63. While living in California, Katie and Mikyla each proposed to the other and

15 planned a commitment ceremony. Just two days before the ceremony, the California Supreme

16 Court ruled that same-sex couples must be permitted to marry. Although that decision was not

17 yet in effect, Katie and Mikyla were overjoyed that their ceremony could feel more “real” in light

18 of the Court’s ruling, and found that, because people understood it as such, it was an important

19 rite of passage that drew their families closer together. Katie’s mom planned the ceremony, and

20 all who attended took a vow during it to support the couple’s relationship. Mikyla’s mother

21 began to treat Katie differently after the ceremony, introducing her to others as a daughter-in-law,

22 instead of as Mikyla’s “friend.”

23

64. When the couple moved to Nevada, their family and friends were shocked to learn

24 that their marriage is not recognized there and that they, in effect, have been “unmarried.” Since

25 then, Mikyla and Katie repeatedly have encountered confusion from others about their

26 relationship. When they looked for their first rental home, the landlord told them that she

27 preferred to rent to a married couple, and they had to explain that they would offer the same

28 stability as a married couple. When Mikyla went to the hospital in February for chest pain, with

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1 Katie arriving separately from another location, Mikyla asked the receptionist to let Katie join her

2 when Katie arrived. The receptionist refused, saying that only patients could be allowed in the

3 emergency room treatment area, even though Mikyla could see that a heterosexual spouse of a

4 patient had been admitted to the same area. When Katie arrived, the receptionist refused to let

5 Katie join Mikyla, and Mikyla finally had to seek out her doctor for help, who then had to escort

6 Katie back to Mikyla.

7

65. Based on these experiences, Mikyla and Katie feel anxiety about how the State’s

8 refusal to recognize them as married encourages disrespect from others, and worry particularly

9 about how this will affect recognition of their legal relationship to their baby. When the child is

10 born, Mikyla and Katie would like to insure her through Katie’s health insurance plan, which

11 provides far superior coverage to Mikyla’s. Katie’s insurance company, however, advised

12 Mikyla that, unlike a marriage, a domestic partnership is not sufficient for their daughter’s birth to

13 be considered a qualifying event, and Katie may only insure her after an adoption. Katie and

14 Mikyla will spend thousands of dollars in attorney and court fees for Katie to adopt their child—

15 money they could otherwise set aside for their daughter’s education.

16

Plaintiffs Adele Terranova and Tara Newberry

17

66. Plaintiffs Adele Terranova, age 31, and Tara Newberry, age 37, reside in Las

18 Vegas, Nevada. Tara, formerly a police officer, is now an attorney at a small law firm, and Adele

19 works as the firm’s office manager. Their lives revolve around their two children,

20

age two, and

three months old, and they are actively involved in a

21 children’s play group for same-sex couples’ families called “We Are Family.” Tara also

22 volunteers to help youth in a juvenile offender diversion program.

23

67. Adele and Tara have been a loving, committed couple since 2005. They married

24 in California in 2008, and are registered domestic partners in both California and Nevada. They

25 have encountered numerous examples of disrespect for their domestic partnership, including

26 being denied marriage-related discounts by their insurance company for Tara’s health coverage.

27 They feel a particular sense of urgency about having their marriage recognized because of the

28 confusion their domestic partnership has caused in circumstances involving their children. For

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1 example, although registered domestic partners are presumed the parents of children born into the

2 relationship, when was born a hospital social worker insisted that “the dad” had to fill out

3 the declaration of paternity and refused to let both parents be listed.

birth certificate was

4 returned from the State with a blank for the second parent’s name, and it took a year-and-a-half to

5 get a corrected certificate listing Tara as the second parent. During this process, Tara had to

6 complete another declaration of paternity form, though she had to alter it by crossing out various

7 provisions to make references to her in it accurate. The State returned the form, insisting that it

8 could not be processed as altered, and Tara had to struggle to get the State to accept the form as

9 modified, pointing out that to do otherwise would require Tara to perjure herself on the form.

10 Adele and Tara also are distressed to find themselves answering questions that generally are

11 never asked of different-sex spouses. For example, when the couple took their daughter

to

12 the emergency room in February, hospital staff asked “which one is the real mom?” If they were

13 able to inform hospital staff that they are married, their family structure and relationship to their

14 children would not be as subject to question and disrespect.

15

Plaintiffs Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins

16

68. Caren Cafferata-Jenkins, age 53, and J. Farrell Cafferata-Jenkins, age 48, are a

17 lesbian couple residing in Carson City, Nevada. Caren and Farrell have been in a loving,

18 committed relationship for 15 years and have registered as domestic partners in Nevada. Caren is

19 the Executive Director of the Nevada Ethics Commission and Farrell is the President and Founder

20 of the Nevada Academy of Sign Language. Farrell’s family has deep ties to Nevada; her

21 grandmother was the first woman in Nevada elected to federal office. Caren and Farrell have two

22 boys,

and

ages 8 and 7, respectively. When

was diagnosed with autism at age

23 2, Farrell learned sign language so that they could better communicate. The couple now serves

24 on the board of a statewide advocacy and resource center for those who are deaf and hard of

25 hearing.

26

69. Caren and Farrell met 15 years ago at a potluck, at which Caren had arrived on a

27 motorcycle. When Caren took off her helmet, and Farrell locked eyes with her, there was an

28 instant “zing.” Caren then hired Farrell to help with landscaping work and insists that Farrell

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1 took longer than necessary pulling weeds so the two could spend more time together. They have

2 been together ever since. In 2002, they held a commitment ceremony in Reno. Because they

3 could not marry, they had to explain on their invitations that the ceremony was instead a b’rit

4 ahu’vah, which is Hebrew for “covenant of love.” They also traveled to California in 2008 to

5 marry.

6

70. Caren and Farrell know first-hand how marriage can change the way they and

7 others view their relationship—but they also know first-hand how hurtful it can feel for that

8 marriage to be disregarded. After returning to their home state of Nevada, they felt as though the

9 State “unmarried” them and that they had to start over from scratch. Although they registered as

10 domestic partners in Nevada, it felt like consigning themselves to bronze, when they previously

11 had a taste of gold. Marriage has always been important to the couple: both Caren and Farrell’s

12 parents have been married for more than 50 years, and Caren and Farrell yearn for the opportunity

13 to follow in their parents’ footsteps and celebrate a golden anniversary. Recognition of their

14 marriage would also be important for their children. Caren and Farrell experience difficulty in

15 identifying to others that both of them are parents to their children, because school forms often

16 only envision different-sex married parents.

17

Plaintiffs Megan Lanz and Sara Geiger

18

71. Sara Geiger, age 27, and Megan Lanz, age 31, are a lesbian couple residing in Las

19 Vegas, Nevada. The couple met in 2005 through their mutual passion for music. At the time,

20 both were pursuing music degrees at the University of Nevada at Las Vegas. Megan now serves

21 on the faculty at the College of Southern Nevada and maintains a flute studio. Sara is working

22 toward her master’s degree in music performance. Sara proposed to Megan with the engagement

23 ring that Sara’s father had given to her mother and the couple married in Vancouver, Canada in

24 2007, surrounded by a handful of close family and friends.

25

72. The couple’s inability to be recognized as married in Nevada causes them harm.

26 In January 2009, Sara gave birth in Nevada to the couple’s daughter,

At the

27 hospital, staff told Megan, “You know, we don’t have to let you stay here, but we’re just going to

28 look the other way.” Jarred by this experience, Sara and Megan subsequently registered as

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1 domestic partners in Nevada on the first day when they could do so. Although they had

2 previously married outside Nevada at the time of

’s birth, Megan’s parent-child

3 relationship with

is not afforded express protection under Nevada law, because Nevada

4 does not recognize their marriage and because domestic partnerships were not even available at

5 the time of

’s birth. As such, Megan’s status as a parent is vulnerable to challenges by

6 others, such as the hospital staff on the day of

’s birth. In the absence of the State’s

7 recognition of her marriage, Megan’s only option is to adopt

the cost of which is currently

8 prohibitive for the couple. Megan also finds this forced choice demeaning when different-sex

9 married couples are not forced to adopt their own children to be recognized as parents. If the

10 State recognized Sara and Megan’s marriage as it would a different-sex couple’s marriage (i.e.,

11 existing as of the date it was entered), then there would be no question that the presumption of

12 parenthood would apply to Megan.

13

73. While vulnerability surrounding their daughter is particularly distressing to the

14 couple, Megan and Sara are frustrated that the law causes others confusion about their

15 relationship in a range of contexts. For example, Megan and Sara also have car insurance in

16 which Sara is listed as the primary insured, but when Megan tried to explain to a police officer

17 during a traffic stop that Sara was her wife, the police officer asked, “What’s that about? What

18 do you mean, it’s your wife?” Sara and Megan have been together as a same-sex couple in a

19 loving, committed relationship for 6 years, have registered as domestic partners in Nevada, and

20 wish to have their marriage recognized in Nevada.

21

D. The State’s Exclusion of Plaintiffs from Marriage Is Not Narrowly Tailored

to a Compelling State Purpose or Even Reasonably Related To a Legitimate

22

State Purpose.

23

74. No legitimate, let alone important or compelling, interest exists to exclude same-

24 sex couples from the historic and highly venerated institution of marriage, especially where the

25 State already grants lesbians and gay men access to almost all substantive spousal rights and

26 responsibilities through registered domestic partnership. As the State has acknowledged by

27 creating the parallel, but less respected, institution of registered domestic partnership, an

28 individual’s capacity to establish a loving and enduring relationship does not depend upon sexual

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1 orientation or his or her sex in relation to his or her committed life partner, nor is there even any

2 legitimate interest justifying denial of spousal protections, rights, and responsibilities on such

3 bases.

4

75. The State’s decision to exclude same-sex couples from marriage, relegating them

5 to the institution of registered domestic partnership, bears no relation to the State’s interests in

6 parenting or child welfare.

7

76. Barring lesbians and gay men from civil marriage does not affect who becomes a

8 parent. Nevada same-sex couples can and do bear children through use of reproductive

9 technology that is available to both same-sex and different-sex couples. They also bring children

10 into their families through foster care or adoption or from a prior relationship.

11

77. Parentage can be determined for all children regardless of marital status, Nev. Rev.

12 Stat. § 126.031 et seq., and parents are required to support their children regardless of marital

13 status, Nev. Rev. Stat. § 125B.020 et seq. Moreover, marriage has never been the sole province

14 of couples who are parents. Neither Nevada nor any other state in this country has ever restricted

15 marriage to those capable of or intending to procreate.

16

78. The consensus within the scientific community is that children and adolescents

17 reared by same-sex parents are as successful psychologically, emotionally, and socially as

18 children and adolescents raised by different-sex parents. The consensus among respected

19 researchers in the field is that parenting abilities are not a function of gender, sexual orientation,

20 or biological connection.

21

79. This consensus is reflected by numerous leading organizations of child welfare,

22 medical, and mental health professionals, which have issued statements confirming that same-sex

23 parents are as effective as different-sex parents in rearing well-adjusted children and adolescents.

24 The State’s own public policy also incorporates this view by making no distinction with respect to

25 the parenting rights of same-sex and different-sex couples.

26

80. Excluding same-sex couples from civil marriage will not make children of

27 different-sex spouses more secure. Different-sex spouses’ children will continue to enjoy the

28

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1 benefits that flow from their parents’ marriage, regardless of whether same-sex couples are

2 permitted to marry.

3

81. Excluding same-sex couples from marriage does, however, harm same-sex

4 couples’ children, including by branding their families as inferior and less deserving of respect,

5 and by encouraging private bias and discrimination.

6

82. The State’s interest in the welfare of children of lesbian and gay parents is as great

7 as its interest in the welfare of any other children. The family security that comes from the

8 State’s official recognition and support is no less important for same-sex parents and their

9 children than it is for different-sex parents and their children.

10

83. Excluding same-sex couples from marriage does nothing to protect or enhance the

11 rights of different-sex spouses. Different-sex spouses will continue to enjoy the same rights and

12 status conferred by marriage regardless of whether same-sex couples may marry, unimpaired by

13 the acknowledgment that this freedom belongs equally to lesbians and gay men.

14

84. Neither history nor tradition can justify the State’s discriminatory exclusion of

15 same-sex couples. Marriage has remained vital and enduring because of, not despite, its

16 resiliency in response to a dynamic society, as society and the courts have cast off prior

17 restrictions on interracial marriage and coverture. The Constitution is not confined to historic

18 notions of equality, and no excuse for the State’s discriminatory restriction can be found in the

19 ancient pedigree of such discrimination.

20

85. Although the State has a valid interest in protecting the public fisc, it may not

21 pursue that interest by making invidious distinctions between classes of its citizens without

22 adequate justification. Moreover, the State not only lacks any such fiscal justification but rather

23 would likely accrue cost-savings by allowing same-sex couples to enter the institution of marriage

24 rather than registered domestic partnership.

25

CLAIM FOR RELIEF

26

Equal Protection on the Basis of Sexual Orientation and Sex

27

U.S. Const. Amend. XIV, 42 U.S.C. § 1983

28

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1

86. Plaintiffs incorporate by reference and reallege paragraphs 1 to 85 of this

2 complaint.

3

87. Plaintiffs state this cause of action against Defendants in their official capacities

4 for purposes of seeking declaratory and injunctive relief.

5

88. The Fourteenth Amendment to the United States Constitution, enforceable

6 pursuant to 42 U.S.C. § 1983, provides that no state shall deny to any person the equal protection

7 of the laws. The conduct of Defendants and their agents in enforcing Nevada Constitution article

8 1, § 21, and Nevada Revised Statutes § 122.020, and all other sources of state law that preclude

9 marriage for same-sex couples and restrict them solely to registered domestic partnership, violates

10 Plaintiffs’ right to equal protection of the laws by discriminating impermissibly on the basis of

11 sexual orientation and sex.

12

89. Nevada Constitution article 1, § 21, Nevada Revised Statutes § 122.020, and all

13 other sources of state law that preclude marriage for same-sex couples or prevent recognition of

14 marriages because they were entered by individuals of the same sex violate the equal protection

15 guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.

16

90. As the State’s chief executive officer, Defendant Sandoval’s duties and actions to

17 enforce the State’s discriminatory marriage ban violate Plaintiffs’ constitutional rights to equal

18 treatment, without regard to sexual orientation or sex, under the Fourteenth Amendment to the

19 United States Constitution.

20

91. As the County Clerk and Commissioner of Civil Marriages for Clark County,

21 Defendant Alba’s duties and actions to ensure compliance with the State’s discriminatory

22 marriage ban through denying marriage licenses, refusing to solemnize marriages, certifying

23 those eligible to solemnize marriages, and maintaining marriage license records, violate the

24 constitutional rights to equal treatment, without regard to sexual orientation or sex, under the

25 Fourteenth Amendment to the United States Constitution of Plaintiffs Antioco Carrillo, Theo

26 Small, Fletcher Whitwell, and Greg Flamer.

27

92. As the County Clerk and Commissioner of Civil Marriages for Washoe County,

28 Defendant Harvey’s duties and actions to ensure compliance with the State’s discriminatory

ER 719

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1 marriage ban through denying marriage licenses, refusing to solemnize marriages, certifying

2 those eligible to solemnize marriages, and maintaining marriage license records, violate the

3 constitutional rights to equal treatment, without regard to sexual orientation or sex, under the

4 Fourteenth Amendment to the United States Constitution of Plaintiffs Karen Goody and Karen

5 Vibe.

6

93. As the Clerk-Recorder for Carson City, Defendant Glover’s duties and actions to

7 ensure compliance with the State’s discriminatory marriage ban through denying marriage

8 licenses, certifying those eligible to solemnize marriages, and maintaining marriage license

9 records, violate the constitutional rights to equal treatment, without regard to sexual orientation or

10 sex, under the Fourteenth Amendment to the United States Constitution of Plaintiffs Beverly

11 Sevcik and Mary Baranovich.

12

94. By acting intentionally to enforce the State’s discriminatory marriage ban, each

13 Defendant has set in motion, or has refused to terminate, acts by others to enforce and implement

14 those laws that Defendants know, or reasonably should know, will cause others to inflict these

15 constitutional injuries upon the Plaintiffs. Through this conduct, each Defendant also knowingly

16 has acquiesced in the constitutional deprivations of those that he or she supervises, and has shown

17 a reckless or callous indifference to the rights of Plaintiffs, thereby proximately causing them

18 injury.

19

95. The State’s marriage ban, and Defendants’ actions to enforce it, denies same-sex

20 couples equal dignity and respect and relegates them to a separate-and-unequal status that is

21 demonstrably inferior. The State’s marriage ban brands lesbians and gay men and their children

22 as second-class citizens through a message of government-imposed stigma and causes private

23 bias and discrimination. The State’s marriage ban and Defendants’ actions reflect moral

24 disapproval and antipathy toward lesbians and gay men.

25

96. The State’s marriage ban targets lesbian and gay Nevadans as a class for exclusion

26 from marriage and discriminates against each Plaintiff based on his or her sexual orientation both

27 facially and as applied.

28

ER 720

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1

97. Plaintiffs are similarly situated to different-sex spouses in every relevant respect.

2 Plaintiffs and their children are as worthy of respect, dignity, social acceptance, and legitimacy as

3 different-sex spouses and their children. The emotional, romantic, and dignitary reasons

4 Plaintiffs seek to marry are similar to those of different-sex couples who choose to marry.

5

98. Although the denial of equal treatment is invalid under any form of constitutional

6 scrutiny, differential treatment by the government based on Plaintiffs’ sexual orientation warrants

7 at least heightened scrutiny. The government’s differential treatment of Plaintiffs based on their

8 sex also warrants heightened scrutiny.

9

99. Lesbians and gay men have suffered a long history of discrimination. They have

10 endured hostility and antipathy from both public and private parties. Being gay or lesbian has

11 been classified as a mental illness. The intimate relationships of same-sex couples have been

12 criminalized. Lesbian and gay civil servants have been purged from federal and municipal

13 employment. Lesbians and gay men disproportionately have been the victims of brutal hate

14 crimes.

15

100. Further, as the State has acknowledged by granting same-sex registered domestic

16 partners virtually the same family, parenting, and relationship rights and responsibilities as

17 spouses enjoy and by prohibiting discrimination based on sexual orientation in employment

18 housing, and public accommodations, Nev. Rev. Stat. §§ 613.330, 118.020, 651.070, neither

19 Plaintiffs’ sexual orientation nor their sex bears any relation to their worth as committed life

20 partners or parents, or their ability to contribute to society.

21

101. Sexual orientation is a core, defining trait and is so fundamental to one’s identity

22 and conscience that a person cannot be required to abandon it as a condition of equal treatment.

23

102. Sexual orientation generally is fixed at an early age and highly resistant to change

24 through intervention. No credible evidence supports the notion that such interventions are either

25 effective or safe; indeed, they often are harmful and damaging. No mainstream mental health

26 professional organization approves interventions to change sexual orientation, and virtually all of

27 them have adopted policy statements cautioning professionals and the public about these

28 treatments.

ER 721

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1

103. Lesbians and gay men are a small minority of the population, and the legacy of

2 discrimination against them is evident in their ongoing relative vulnerability and lack of political

3 power. Lesbians and gay men lack statutory protection against discrimination in employment,

4 public accommodations, and housing at the federal level and in 29 states; are systematically

5 underrepresented in federal, state, and local democratic bodies; have been stripped of the right to

6 marry through 29 state constitutional amendments and currently are not permitted to marry in a

7 total of 44 states; and now have been targeted through the voter initiative process more than any

8 other group.

9

104. The State’s marriage ban discriminates against each Plaintiff on the basis of sex

10 both facially and as applied, barring each Plaintiff from marriage and relegating him or her to

11 registered domestic partnership solely because he or she wishes to marry a life partner of the

12 same sex.

13

105. The State’s marriage ban also serves the impermissible purpose of blocking

14 departures from sex stereotypes by excluding each Plaintiff from marriage and relegating him or

15 her to registered domestic partnership with the one person he or she loves, because Plaintiffs have

16 failed to conform to the prevailing and State-enforced stereotype that men should marry women

17 and that women should marry men.

18

DECLARATORY AND INJUNCTIVE RELIEF

19

28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65

20

106. Plaintiffs incorporate by reference and reallege paragraphs 1 to 105 of this

21 complaint.

22

107. This case presents an actual controversy because Defendants’ present and ongoing

23 denial of equal treatment to Plaintiffs subjects them to serious and immediate harms, warranting

24 the issuance of a declaratory judgment.

25

108. Plaintiffs seek preliminary and/or permanent injunctive relief to protect their

26 constitutional rights and avoid the injuries described above. A favorable decision enjoining

27 Defendants would redress and prevent the irreparable injuries to Plaintiffs identified herein, for

28 which Plaintiffs have no adequate remedy at law or in equity.

ER 722

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1

109. The State will incur little to no burden in allowing same-sex couples to marry and

2 in recognizing the valid marriages of same-sex couples from other jurisdictions on the same terms

3 as different-sex couples, whereas the hardship for Plaintiffs of being denied equal treatment and

4 relegated to a demonstrably inferior relationship status is severe, subjecting them to an irreparable

5 denial of their constitutional rights. The balance of hardships thus tips strongly in favor of

6 Plaintiffs.

7

PRAYER FOR RELIEF

8

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:

9

A. Declaring that the provisions and enforcement by Defendants of Nevada

10 Constitution Article 1, § 21, Nevada Revised Statutes § 122.020, and any other sources of state

11 law that exclude same-sex couples from marrying and relegate them to only registered domestic

12 partnership, violate Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth

13 Amendment to the United States Constitution; and, for those couples legally married in another

14 jurisdiction, declaring that it is unconstitutional for Defendants to refuse, based solely on the fact

15 that Plaintiffs are same-sex couples, to respect Plaintiffs’ out-of-state valid marriages as

16 marriages in Nevada;

17

B. Preliminarily and permanently enjoining enforcement by Defendants of Nevada

18 Constitution Article 1, § 21, Nevada Revised Statutes § 122.020, and any other sources of state

19 law that exclude same-sex couples from marriage and restrict them to only registered domestic

20 partnership; and for those same-sex couples who are legally married in another jurisdiction,

21 enjoining Defendants from denying recognition of those marriages based solely on the fact that

22 Plaintiffs are same-sex couples;

23

C. Requiring Defendants in their official capacities to allow same-sex couples to

24 marry on the same terms as different-sex couples, and to recognize the valid marriages of same-

25 sex couples from other jurisdictions on the same terms as the valid marriages of different-sex

26 couples from other jurisdictions;

27

D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant

28 to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and

ER 723

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ER 724

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CLOSED,APPEAL
United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:12-cv-00578-RCJ-PAL

Sevcik et al v. Sandoval et al Assigned to: Chief Judge Robert C. Jones Referred to: Magistrate Judge Peggy A. Leen Case in other court: Ninth Circuit, 12-17668 Cause: 42:1983 Civil Rights Act

Date Filed: 04/10/2012 Date Terminated: 11/26/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Beverly Sevcik

represented by Carla Christofferson O'Melveny & Myers LLP 400 S. Hope Street Los Angeles, CA 90071 213-430-8359 Email: cchristofferson@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 213-430-6352 Email: dsestito@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Boulevard Los Angeles, CA 90010 213-382-7600 Email: jdavidson@lambdalegal.org ATTORNEY TO BE NOTICED

Marek P. Bute Snell & Wilmer 3883 Howard Hughes Pkwy., Ste. 1000 Las Vegas, NV 89169 (702) 784-5266 Fax: (702) 784-5252 Email: mbute@swlaw.com

ER 725
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ATTORNEY TO BE NOTICED
Melanie Cristol O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90503 213-430-8180 Email: mcristol@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn Lambda Legal Defense & Education Fund, Inc. 3325 Wilshire Blvd. Suite 1300 Los Angeles, CA 90010 213-382-7600 Fax: 213-351-6050 Email: prenn@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi O'Melveny & Myers LLP 400 South Hope St. Los Angeles, CA 90071 213-430-8381 Email: razizi@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Boulevard Los Angeles, CA 90010 213-382-7600 Email: sday@lambdalegal.org ATTORNEY TO BE NOTICED
Tara Borelli Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Boulevard Los Angeles, CA 90010 213-382-7600 Email: tborelli@lambdalegal.org ATTORNEY TO BE NOTICED

ER 726
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Plaintiff Mary Baranovich

Kelly H Dove Snell & Wilmer L.L.P. 3883 Howard Hughes Parkway Las Vegas, NV 89169 (702) 784-5200 Fax: (702) 784-5252 Email: kdove@swlaw.com ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address)

ER 727
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Plaintiff Antioco Carrillo

ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove

ER 728
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Plaintiff Theodore Small

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(See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

ER 729
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Plaintiff Karen Goody
Plaintiff Karen Vibe

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address)

ER 730
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Plaintiff Fletcher Whitwell

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PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

ER 731
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Plaintiff Greg Flamer

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE

ER 732
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Plaintiff Mikyla Miller

ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson

ER 733
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Plaintiff Katrina Miller

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(See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

ER 734
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Plaintiff Adele Terranova

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

ER 735
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Plaintiff Tara Newberry

Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address)

ER 736
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Plaintiff Caren Cafferata-Jenkins

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PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

ER 737
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Plaintiff Farrell Cafferata-Jenkins

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE

ER 738
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Plaintiff Megan Lanz

ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi

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Plaintiff Sara Geiger

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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V. Defendant Brian Sandoval in his official capacity as Governor of the State of Nevada
Defendant Diana Alba in her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County, Nevada
Defendant Amy Harvey in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada

Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by C. Wayne Howle Nevada Attorney General's Office 100 North Carson Street Carson City, NV 89701-4717 (775) 684-1227 Fax: (775) 684-1108 Email: whowle@ag.nv.gov ATTORNEY TO BE NOTICED
represented by Michael L Foley Clark County District Attorney's Office Civil Division 500 S. Grand Central Pkwy 5th Flr P.O.Box 552215 Las Vegas, NV 89155-2215 702-455-4761 Fax: 702-382-5178 Email: MICHAEL.FOLEY@ccdanv.com ATTORNEY TO BE NOTICED
represented by Herbert B. Kaplan . P.O. Box 30083 Reno, NV 89520 775-337-5700 Fax: 775-337-5732 Email: hkaplan@da.washoecounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Alan Glover in his official capacity as the ClerkRecorder for Carson City, Nevada
V. Intervenor Defendant Coalition for the Protection of Marriage

represented by Joseph L Ward , Jr. Carson City District Attorney's Office Civil Division 885 East Musser Street, Suite 2030 Carson City, NV 89701 775-887-2070 Fax: 775-887-2129 Email: jward@carson.org ATTORNEY TO BE NOTICED
Randal R. Munn . 885 East Musser Street, #2030 Carson City, NV 89701 775-887-2070 Fax: 775-887-2129 Email: RMunn@carson.org ATTORNEY TO BE NOTICED
represented by Craig G. Taylor Stewart Taylor & Morris PLLC 12550 W. Explorer Drive Boise, ID 83713 208-345-3333 Fax: 208-345-4461 Email: cgtaylor@stm-law.com ATTORNEY TO BE NOTICED
D. Chris Albright Albright Stoddard Warnick & Albright 801 S. Rancho Drive Suite D-4 Las Vegas, NV 89106 702-384-7111 Fax: 702-384-0605 Email: dca@albrightstoddard.com ATTORNEY TO BE NOTICED
Daniel W. Bower Belnap Stewart Taylor & Morris PLLC 12550 W. Explorer Drive Boise, ID 83713 208-345-3333 Fax: 208-345-4461

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Email: dbower@belnaplaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Monte N Stewart Belnap Stewart Taylor & Morris PLLC 12550 W. Explorer Drive Suite 100 Boise, ID 83713 208-345-3333 Fax: 208-345-4461 Email: stewart@belnaplaw.com ATTORNEY TO BE NOTICED

Date Filed 04/10/2012
04/10/2012 04/10/2012
04/10/2012
04/10/2012

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 350 receipt number 09782331341), filed by Adele Terranova, Fletcher Whitwell, Mary Baranovich, Beverly Sevcik, Caren Cafferata-Jenkins, Sara Geiger, Karen Vibe, Antioco Carrillo, Mikyla Miller, Tara Newberry, Farrell Cafferata-Jenkins, Megan Lanz, Greg Flamer, Theodore Small, Katrina Miller, Karen Goody. Certificate of Interested Parties due by 4/20/2012. Proof of service due by 8/8/2012. (Attachments: # 1 Civil Cover Sheet) (Dove, Kelly) (Entered: 04/10/2012)
Case assigned to Judge Roger L. Hunt and Magistrate Judge Peggy A. Leen. (MMM) (Entered: 04/10/2012)
2 NOTICE PURSUANT TO LOCAL RULE IB 2-2: In accordance with 28 USC § 636(c) and FRCP 73, the parties in this action are provided with a link to the "AO 85 Notice of Availability, Consent, and Order of Reference - Exercise of Jurisdiction by a U.S. Magistrate Judge" form on the Court's website www.nvd.uscourts.gov. Consent forms should NOT be electronically filed. Upon consent of all parties, counsel are advised to manually file the form with the Clerk's Office. (no image attached) (MMM) (Entered: 04/10/2012)
3 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 10-2. Counsel Jon W. Davidson, Tara L. Borelli, Peter C. Renn, Shelbi Day, Carla Christofferson, Dawn Sestito, Melanie Cristol, Rahi Azizi to comply with completion and electronic filing of the Designation of Local Counsel and Verified Petition. For your convenience, click on the following link to obtain the form from the Court's website - www.nvd.uscourts.gov/Forms.aspx. Counsel is also required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of pleadings. Please visit the Court's website www.nvd.uscourts.gov to register Attorney(s). Verified Petition due by 5/25/2012.(no image attached) (MMM) (Entered: 04/10/2012)
4 CERTIFICATE of Interested Parties filed by Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara

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04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012

Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. There are no known interested parties other than those participating in the case. (Dove, Kelly) (Entered: 04/10/2012)
5 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Jon W. Davidson and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978-2332407) by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
6 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Tara L. Borelli and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978-2332426) by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
7 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Peter C. Renn and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978-2332448) by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
8 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Shelbi D. Day and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978-2332457) by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
9 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Carla Christofferson and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978-2332480) by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
10 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Dawn Sestito and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978-2332504) by Plaintiffs Mary Baranovich, Caren

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Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
11 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Melanie Cristol and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978-2332521) by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
12 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Rahi Azizi and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978-2332544) by Plaintiffs Mary Baranovich, Caren CafferataJenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
13 ORDER Granting 5 Verified Petition for Permission to Practice Pro Hac Vice by Jon Davidson and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 04/12/2012)
14 ORDER Granting 6 Verified Petition for Permission to Practice Pro Hac Vice by Tara L. Borelli and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 04/12/2012)
15 ORDER Granting 7 Verified Petition for Permission to Practice Pro Hac Vice by Peter C. Renn and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 04/12/2012)
16 ORDER Granting 8 Verified Petition for Permission to Practice Pro Hac Vice by Shelbi D. Day and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov

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(Copies have been distributed pursuant to the NEF - MMM) (Entered: 04/12/2012)
17 ORDER Granting 9 Verified Petition for Permission to Practice Pro Hac Vice by Carla J. Christofferson and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 04/12/2012)
18 ORDER Granting 10 Verified Petition for Permission to Practice Pro Hac Vice by Dawn Sestito and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 04/12/2012)
19 ORDER Granting 11 Verified Petition for Permission to Practice Pro Hac Vice by Melanie Cristol and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 04/12/2012)
20 ORDER Granting 12 Verified Petition for Permission to Practice Pro Hac Vice by Rahi Azizi and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 04/12/2012)
21 PROPOSED SUMMONS to be issued for Defendant Sandoval, filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell CafferataJenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
22 PROPOSED SUMMONS to be issued for Defendant Alba, filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
23 PROPOSED SUMMONS to be issued for Defendant Harvey, filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell CafferataJenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan

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04/19/2012 04/20/2012 05/03/2012 05/15/2012 05/16/2012

Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
24 PROPOSED SUMMONS to be issued for Defendant Glover, filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell CafferataJenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
25 Summons Issued as to Diana Alba, Alan Glover, Amy Harvey, Brian Sandoval. (Attachments: # 1 summons issued as to Diana Alba, # 2 summons issued as to Amy Harvey, # 3 summons issued as to Alan Glover)(MMM) (Entered: 04/13/2012)
26 SUMMONS Returned Executed by Adele Terranova, Fletcher Whitwell, Mary Baranovich, Beverly Sevcik, Caren Cafferata-Jenkins, Sara Geiger, Karen Vibe, Antioco Carrillo, Mikyla Miller, Tara Newberry, Farrell CafferataJenkins, Megan Lanz, Greg Flamer, Theodore Small, Katrina Miller, Karen Goody re 25 Summons Issued. Diana Alba served on 4/13/2012, answer due 5/4/2012; Alan Glover served on 4/13/2012, answer due 5/4/2012; Amy Harvey served on 4/13/2012, answer due 5/4/2012; Brian Sandoval served on 4/13/2012, answer due 5/4/2012. (Renn, Peter) (Entered: 04/17/2012)
27 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on 4/19/2012. IT IS ORDERED that this case is reassigned to Chief Judge Robert C. Jones for all further proceedings. Judge Roger L. Hunt no longer assigned to case. All further documents must bear the correct case number 2:12-cv-00578-RCJ-PAL. (no image attached) (Copies have been distributed pursuant to the NEF - BLG) (Entered: 04/19/2012)
28 Mail Returned as Undeliverable re 16 Order on Verified Petition for Permission to Practice Pro Hac Vice, addressed to Shelbi D. Day. Remailed to 3325 Wilshire Blvd Ste 1300, LA, CA 90010. (MMM) (Entered: 04/20/2012)
29 STIPULATION FOR EXTENSION OF TIME to File Answer to 1 Complaint filed by Defendant Amy Harvey. (First Request) (Kaplan, Herbert) Added docket entry relationship on 5/10/12. (ASB) (Entered: 05/03/2012)
30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. Responses due by 6/1/2012. (Attachments: # 1 Appendix, # 2 Certificate of Service)(Albright, D. Chris) (Entered: 05/15/2012)
31 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 10-2. Counsel Craig G. Taylor to comply with completion and electronic filing of the Designation of Local Counsel and Verified Petition. For your convenience, click on the following link to obtain the form from the Court's website www.nvd.uscourts.gov/Forms.aspx. Counsel is also required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of pleadings. Please visit the Court's website

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05/17/2012 05/18/2012 05/18/2012 05/18/2012 05/18/2012
05/29/2012 05/29/2012 06/01/2012
06/01/2012
06/04/2012

www.nvd.uscourts.gov to register Attorney(s). Verified Petition due by 6/30/2012.(no image attached) (ASB) (Entered: 05/16/2012)
32 MOTION to Dismiss by Defendant Brian Sandoval. Responses due by 6/3/2012. Certificate of Interested Parties due by 5/27/2012. Discovery Plan/Scheduling Order due by 7/1/2012. (Howle, C.) (Entered: 05/17/2012)
33 MOTION to Dismiss for Lack of Jurisdiction by Defendant Alan Glover. Responses due by 6/4/2012. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012. (Munn, Randal) (Entered: 05/18/2012)
34 ANSWER to 1 Complaint, filed by Diana Alba. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012. (Foley, Michael) (Entered: 05/18/2012)
35 ANSWER to 1 Complaint filed by Amy Harvey. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012. (Kaplan, Herbert) (Entered: 05/18/2012)
36 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Craig G. Taylor and DESIGNATION of Local Counsel D. Chris Albright (Filing fee $ 200 receipt number 0978-2375975) filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 5/18/2012. (Albright, D. Chris) (Entered: 05/18/2012)
37 NON-OPPOSITION to 30 MOTION to Intervene ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 05/29/2012)
38 NOTICE of Nonopposition to 30 Motion to Intervene by Defendant Alan Glover. (Munn, Randal) (Entered: 05/29/2012)
39 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 06/01/2012)
40 RESPONSE to 30 MOTION to Intervene, filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 6/11/2012. (Cristol, Melanie) (Entered: 06/01/2012)
41 RESPONSE to 32 MOTION to Dismiss, 33 MOTION to Dismiss for Lack of Jurisdiction, filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 6/14/2012. (Attachments: # 1 Exhibit, # 2 Exhibit)(Borelli, Tara) (Entered: 06/04/2012)

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06/21/2012 06/21/2012

42 REPLY to Response to 30 MOTION to Intervene ; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/08/2012)
43 OBJECTION to 39 Proposed Discovery Plan/Scheduling Order, ; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/08/2012)
44 ORDER that Intervenor Defendant shall file its Certificate as to Interested Parties, which fully complies with LR 7.1-1 no later than 4:00 p.m., June 18, 2012. Failure to comply may result in the issuance of an order to show cause why sanctions should not be imposed. Signed by Magistrate Judge Peggy A. Leen on 6/7/12. (Copies have been distributed pursuant to the NEF - ECS) (Entered: 06/08/2012)
45 Supplemental REPLY to Response to 30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/11/2012)
46 REPLY to Response to 33 MOTION to Dismiss for Lack of Jurisdiction ; filed by Defendant Alan Glover. (Munn, Randal) (Entered: 06/11/2012)
47 CERTIFICATE of Interested Parties filed by Coalition for the Protection of Marriage that identifies all parties that have an interest in the outcome of this case. Certificate as to Interested Parties Pursuant to Local Rule 7.1-1. (Albright, D. Chris) (Entered: 06/11/2012)
48 RESPONSE to 43 Objection to 39 Discovery Plan and Scheduling Order filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell CafferataJenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, and Fletcher Whitwell. (Renn, Peter) Modified docket entry relationships on 6/13/2012. (ASB) (Entered: 06/12/2012)
49 First MOTION to Extend Time to File Reply to 41 Response to 32 MOTION to Dismiss (First Request) filed by Defendant Brian Sandoval. Motion ripe 6/14/2012. (Howle, C.) (Entered: 06/14/2012)
50 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on June 14, 2012, by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that 49 Defendant Governor Brian Sandovals Motion for Extension of Time to File Reply Brief is GRANTED. IT IS SO ORDERED. Signed Chief Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF - CL) (Entered: 06/14/2012)
51 REPLY to Response to 32 MOTION to Dismiss ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 06/21/2012)
52 ORDER Granting 36 Verified Petition for Permission to Practice Pro Hac Vice by Craig G. Taylor and approving Designation of Local Counsel D. Chris Albright for Coalition for the Protection of Marriage. Signed by Chief Judge Robert C. Jones on 6/21/12.

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Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 06/21/2012)
53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell CafferataJenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, and Fletcher Whitwell. (Attachments: # 1 Exhibit Proposed Surreply, # 2 Exhibit Proposed Order) (Borelli, Tara) Modified docket event type and entry relationships on 6/26/2012. (ASB) (Entered: 06/25/2012)
Notice of Docket Correction to 53 Response to Motion. ERROR: Wrong event used by Attorney Tara Borelli; image does not match event selected. CORRECTION: Court modified entry as 53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss. (no image attached)(ASB) (Entered: 06/26/2012)
54 NON-OPPOSITION to 53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss filed by Defendant Alan Glover. (Munn, Randal) (Entered: 06/27/2012)
55 MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene - Epedited Treatment Requested Before July 3, 2012 filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 6/29/2012. (Stewart, Monte) Modified docket entry relationship on 6/29/2012. (ASB) (Entered: 06/29/2012)
56 NON-OPPOSITION to 53 MOTION to File Surreply to 32 and 33 MOTIONS to DismissMOTION to File Surreply to 32 and 33 MOTIONS to DismissMOTION to File Surreply to 32 and 33 MOTIONS to Dismiss ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
57 ERRATA to 56 Non-Opposition, ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
58 NON-OPPOSITION to 55 MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
59 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on July 3, 2012, by Carrie Lipparelli, Judicial Assistant.
IT IS HEREBY ORDERED that 53 Plaintiffs Motion to File Surreply in Further Support of Their Opposition to Defendants Motion to Dismiss is GRANTED.
IT IS FURTHER ORDERED that 55 Motion to Immediately Stay Discovery Pending Ruling on Motion to Intervene is GRANTED.

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IT IS FURTHER ORDERED that ORAL ARGUMENT is set as follows:
MONDAY, AUGUST 6, 2012 @ 1:30PM
30 Motion to Intervene; and
[32, 33] Defendant Governor Brian Sandovals Motion to Dismiss;
NOTICE OF HEARING LOCATION: Parties may appear at either location.
VIDEO CONFERENCE LAS VEGAS: Lloyd D. George U.S. Courthouse, United States District Court District of Nevada, 333 Las Vegas Blvd. South, Las Vegas, Nevada 89101, COURTROOM LOCATION TO BE DETERMINED AND NOTICED AT PUBLIC ELEVATORS ON HEARING DATE.
IN PERSON RENO: COURTROOM 6, Bruce R. Thompson Federal building & U.S. Courthouse, United States District Court District of Nevada, 400 South Virginia Street, Reno, Nevada 89501.
IT IS SO ORDERED. Signed Chief Judge Robert C. Jones.
(Copies have been distributed pursuant to the NEF - CL) (Entered: 07/03/2012)
60 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Daniel W. Bower and DESIGNATION of Local Counsel D. Chris Albright (Filing fee $ 200 receipt number 0978-2434865) filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 7/10/2012. (Albright, D. Chris) (Entered: 07/10/2012)
61 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on July 25, 2012, by Carrie Lipparelli, Judicial Assistant.
IT IS HEREBY ORDERED that due to a conflict with the Courts calendar ORAL ARGUMENT currently set for Monday, August 6, 2012 @ 1:30PM is VACATED and RESCHEDULED as follows:
FRIDAY, AUGUST 10, 2012 @ 09:00AM
30 Motion to Intervene;
[32/33] Defendant Governor Brian Sandovals Motion to Dismiss.
NOTICE OF HEARING LOCATION: PARTIES MUST APPEAR IN LAS VEGAS
Lloyd D. George U.S. Courthouse, United States District Court District of Nevada, 333 Las Vegas Blvd. South, Las Vegas, Nevada 89101, COURTROOM LOCATION TO BE DETERMINED AND NOTICED AT PUBLIC ELEVATORS ON HEARING DATE.IT IS SO ORDERED.

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Signed Chief Judge Robert C. Jones.
(no image attached) (Copies have been distributed pursuant to the NEF - CL) (Entered: 07/26/2012)
62 ORDER Granting 60 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Daniel W Bower and approving Designation of Local Counsel D. Chris Albright for Coalition for the Protection of Marriage. Signed by Chief Judge Robert C. Jones on 7/25/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF - MMM) (Entered: 07/26/2012)
63 ERRATA to 42 Reply to Response to 30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 08/02/2012)
64 SUPPLEMENT Citation to Additional Authority in Support of: The Coalition's 30 Motion to Intervene; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Albright, D. Chris) Docket entry relationship modified on 8/7/2012 (SRK). (Entered: 08/07/2012)
65 SUPPLEMENT Second Citation to Additional Authority in Support of: The Coalition's 30 Motion to Intervene; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Albright, D. Chris) (Entered: 08/09/2012)
66 ORDER setting Scheduling Conference regarding 39 Proposed Discovery Plan/Scheduling Order and 43 Objection on 8/28/2012 at 10:30 a.m. in LV Courtroom 3B before Magistrate Judge Peggy A. Leen.
The parties may appear telephonically, and they can be connected to the hearing by dialing 702-868-4907 and entering code "123456" when prompted no later than 10:25 a.m. on 8/28/2012. This line can accommodate a maximum of six unique callers. Should counsel require more than six parties to participate, they are directed to contact Courtroom Administrator Jeff Miller to make special arrangements prior to the hearing. The use of a cell phone or speaker phone during the call is prohibited. The call must be made using a land line.
Signed by Magistrate Judge Peggy A. Leen on 8/9/12. (Copies have been distributed pursuant to the NEF - Jones, Elizabeth) (Entered: 08/09/2012)
67 MINUTES OF PROCEEDINGS - Motion Hearing RE: 30 Motion to Intervene, 32 and 33 Motions to Dismiss held on 8/10/2012 before Chief Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Tara Borelli, Dawn Sestito, Kelly Douglas; Def Counsel: C. Howle, Randal Munn, Michael Foley, Chris Albright, Herbert Kaplan, Monte Stewart; Court Reporter/FTR #: Margaret Griener; Time of Hearing: 9:03 - 9:37 a.m.; Courtroom: 4B; Mr. Stewart informs the Court that the parties have reached an agreement with

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respect to 30 Motion to Intervene, then recites the terms of the agreement on the record. Plaintiffs' withdraw their previously filed opposition to the motion to intervene. 30 Motion to Intervene is granted. Court and counsel discuss the status of the case and scheduling. The Court sets the following deadlines and directs the submission of proposed scheduling order in accordance with the Court's ruling. Motions for Summary Judgment shall be due in 30 days; Responses shall be due in 45 days thereafter.
IT IS ORDERED that Oral Argument on Motions for Summary Judgment, and 32 33 Motions to Dismiss are scheduled for 11/26/2012 09:00 AM in Reno Courtroom 6 before Chief Judge Robert C. Jones.
(Copies have been distributed pursuant to the NEF - LE) (Entered: 08/17/2012)
68 SUPPLEMENT to the Coalition's Objection to Stipulated Discovery Plan and Scheduling Order filed by Intervenor Defendant Coalition for the Protection of Marriage. (Attachments: # 1 Exhibit)(Albright, D. Chris) (Entered: 08/23/2012)
70 MINUTES OF PROCEEDINGS - Scheduling Conference held on 8/28/2012 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Peter Renn, Esq., Kelly Dove, Esq., Tara Borelli, Esq., Melanie Cristol, Esq.; Def Counsel: C. Howle, Esq., Herbert Kaplan, Esq., Michael Foley, Esq., Randal Munn, Esq., Chris Albright, Esq., Monte Stewart, Esq.; Court Reporter/FTR #: 10:51:28 - 11:08:58; Time of Hearing: 10:30am; Courtroom: 3B; Counsel appear telephonically for these proceedings. The Court hears representations of Plaintiffs' Counsel as to the status of this case. The Court next hears representations of Counsel for all parties concerning their positions on discovery and their discovery needs. IT IS ORDERED: The Parties shall meet and confer within 14 days after decision on the pending dispositive motions, and file a Proposed Discovery Plan and Scheduling Order which addresses any claims that remain pending after the District Judge's ruling, IT IS ORDERED: Parties shall likewise meet and confer after the 9/10/2012 dispositive motion deadling to determine if they are going to request any discovery, or have any immediate pending discovery disputes, while the dispositive motions are pending. Status Conference set for 9/18/2012 @ 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Joint Status Report due by 9/14/2012, which shall detail any discovery disputes as directed in open court. If there are no disputes or substantive matters to address with the Court, Counsel can request that the hearing be vacated in their Joint Status Report. (no image attached) (Copies have been distributed pursuant to the NEF - JAM) Modified on 9/5/2012 (JAM). (Entered: 09/05/2012)
69 TRANSCRIPT of Proceedings, 67 Order on Motion to Intervene Motion Hearing held on 8/10/2012, before Chief Judge Robert C. Jones. Court Reporter/Transcriber: Margaret Griener, 775-329-9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov

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target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 9/19/2012. Redacted Transcript Deadline set for 9/29/2012. Release of Transcript Restriction set for 11/27/2012. (MG) (Entered: 08/29/2012)
71 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 9/5/2012. By Deputy Clerk: Jeff Miller. In regards to the Status Conference that has been scheduled for 9/18/2012 @ 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen, IT IS ORDERED: Counsel are permitted to appear telephonically and are directed to call 702464-5625 on the date and time of the hearing if they wish to participate via phone. (no image attached) (Copies have been distributed pursuant to the NEF - JAM) (Entered: 09/05/2012)
72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. Responses due by 10/4/2012. (Stewart, Monte) (Entered: 09/10/2012)
73 APPENDIX 1-7 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
74 MOTION for Summary Judgment by Defendant Alan Glover. Responses due by 10/4/2012. (Munn, Randal) (Entered: 09/10/2012)
75 APPENDIX 8-11 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
76 APPENDIX 12-14 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
77 APPENDIX 15-18 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
78 APPENDIX 19-23 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
79 APPENDIX 24-29 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
80 APPENDIX 30-36 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
81 APPENDIX 37-40 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)

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82 APPENDIX 41-45 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
83 APPENDIX 46-50 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
84 APPENDIX 51-52 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
85 MOTION for Summary Judgment by Defendant Brian Sandoval. Responses due by 10/4/2012. (Attachments: # 1 Exhibit Attachment 1, # 2 Exhibit Attachment 2)(Howle, C.) (Entered: 09/10/2012)
86 MOTION for Summary Judgment by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Responses due by 10/4/2012. (Attachments: # 1 Appendix Volume 1, # 2 Appendix Volume 2, # 3 Appendix Volume 3)(Borelli, Tara) (Entered: 09/10/2012)
87 ADDENDUM to 86 MOTION for Summary Judgment filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 09/10/2012)
88 Joint STATUS REPORT by Plaintiffs Mary Baranovich, Caren CafferataJenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 09/14/2012)
89 ORDER that the oral argument scheduled for 11/26/12 is VACATED re 32 MOTION to Dismiss filed by Brian Sandoval and 33 MOTION to Dismiss for Lack of Jurisdiction filed by Alan Glover. The Court will issue a written order on the pleadings. Signed by Chief Judge Robert C. Jones on 9/17/2012. (Copies have been distributed pursuant to the NEF - EDS) (Entered: 09/17/2012)
90 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 9/17/2012. By Deputy Clerk: Jeff Miller. The Court has reviewed Counsels' Joint Status Report 88 . Based on Counsels' representations, IT IS ORDERED: The Status Hearing currently scheduled for Tuesday, 9/18/2012 @ 9:00am in Courtroom #3B is hereby VACATED. (no image attached) (Copies have been distributed pursuant to the NEF - JAM) (Entered: 09/17/2012)
91

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MOTION for Clarification of 89 Order filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Dove, Kelly) (Entered: 09/18/2012)
NOTICE of Docket Correction to 91 Letter. ERROR: Document requests action from the Judge. CORRECTION: Clerk's Office modified document as 91 MOTION for Clarification of 89 Order. (no image attached)(ASB) (Entered: 09/18/2012)
92 AMENDED 89 MINUTE ORDER: IT IS HEREBY ORDERED that oral argument on (Dockets 32 , 33 , 72 , 74 , 85 , 86 ) set for Monday, November 26, 2012 is VACATED.
IT IS FURTHER ORDERED that any newly filed motions filed with the Court after September 18, 2012 will not be scheduled for oral argument.
IT IS FURTHER ORDERED that oral argument on November 26, 2012 has been vacated in its entirety.
The court will issue a written order on the pleadings. Signed by Chief Judge Robert C. Jones on 9/18/12. (Copies have been distributed pursuant to the NEF - BLG) BLG . Modified on 9/18/2012 NEF Regenerated with PDF attached. (BLG). (Entered: 09/18/2012)
93 UNOPPOSED MOTION and Proposed Order Re Page Limits for Plaintiffs' Opposition re 74 MOTION for Summary Judgment, 72 MOTION for Summary Judgment, 85 MOTION for Summary Judgment by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 9/27/2012. (Borelli, Tara) (Entered: 09/27/2012)
94 ORDER Granting 93 Unopposed Motion Regarding Page Limits for Plaintiffs' Combined Opposition Brief to Motions for Summary Judgment. Signed by Chief Judge Robert C. Jones on 10/22/12. (Copies have been distributed pursuant to the NEF - MMM) (Entered: 10/22/2012)
95 RESPONSE to 86 MOTION for Summary Judgment, filed by Intervenor Defendant Coalition for the Protection of Marriage. Replies due by 11/11/2012. (Attachments: # 1 Appendix)(Stewart, Monte) (Entered: 10/25/2012)
96 RESPONSE to 86 MOTION for Summary Judgment, filed by Defendant Brian Sandoval. Replies due by 11/11/2012. (Howle, C.) (Entered: 10/25/2012)
97 RESPONSE to 86 MOTION for Summary Judgment, filed by Defendant Alan Glover. Replies due by 11/11/2012. (Munn, Randal) (Entered: 10/25/2012)
98

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RESPONSE to 74 MOTION for Summary Judgment, 72 MOTION for Summary Judgment, 85 MOTION for Summary Judgment, filed by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 11/11/2012. (Attachments: # 1 Affidavit of Michael Lamb, Ph.D., # 2 Affidavit of Letitia Anne Peplau, Ph.D.)(Borelli, Tara) (Entered: 10/25/2012)
99 APPENDIX in Support of 95 Response to to 86 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 10/31/2012)
100 MOTION for Leave to File Summary Judgment Reply and Supporting Declarations of Michael Lamb, Ph.D. and Tara Borelli by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 11/8/2012. (Attachments: # 1 Exhibit A - Reply Brief, # 2 Exhibit B - Declaration of Michael Lamb, Ph.D., # 3 Exhibit C - Declaration of Tara Borelli, # 4 Exhibit D - Proposed Order)(Borelli, Tara) (Entered: 11/08/2012)
101 RESPONSE to 100 MOTION for Leave to File Summary Judgment Reply and Supporting Declarations of Michael Lamb, Ph.D. and Tara Borelli, filed by Intervenor Defendant Coalition for the Protection of Marriage. Replies due by 11/19/2012. (Stewart, Monte) (Entered: 11/09/2012)
102 ORDER that the Motions to Dismiss 32 , 33 are GRANTED IN PART and DENIED IN PART. The Complaint is dismissed as precluded by Baker v. Nelson with respect to the traditional equal protection challenge, but the Complaint is not dismissed with respect to the challenge under Romer v. Evans. FURTHER ORDERED that the Motions for Summary Judgment 72 , 74 , 85 are GRANTED. FURTHER ORDERED that the Motion for Summary Judgment 86 is DENIED. FURTHER ORDERED that the Motion for Leave to File Reply 100 is DENIED. No party has been permitted to file a reply. The arguments have been comprehensively presented, and no reply is necessary to preserve the relevant issues on appeal. FURTHER ORDERED that the Clerk shall enter judgment and close the case. Signed by Chief Judge Robert C. Jones on 11/26/12. (Copies have been distributed pursuant to the NEF MMM) (Entered: 11/29/2012)
103 CLERK'S JUDGMENT is hereby entered per Order 102 filed November 26, 2012. Signed by Clerk of Court, Lance S. Wilson on 12/3/12. (Copies have been distributed pursuant to the NEF - MMM) (Entered: 12/03/2012)
104 NOTICE OF APPEAL by Plaintiffs Mary Baranovich, Caren CafferataJenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Filing fee $ 455, receipt number 0978-2621463. E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. (Attachments: # 1

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Exhibit A - Order, # 2 Exhibit B - Judgment)(Borelli, Tara) (Entered: 12/03/2012)
105 Designation of Transcripts and Transcript Order forms and instructions for 104 Notice of Appeal,. The forms may also be obtained on the Court's website at www.nvd.uscourts.gov/Forms.aspx. (ASB) (Entered: 12/03/2012)
106 Civil Appeals Docketing Statement to 104 Notice of Appeal by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 12/03/2012)
107 TRANSCRIPT DESIGNATION by Plaintiffs Mary Baranovich, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell re 104 Notice of Appeal, 67 Order on Motion to Intervene,,,,,, Motion Hearing,,,,, 70 Scheduling Conference,,,,,,, 69 Transcript,,. (Borelli, Tara) (Entered: 12/04/2012)
108 ORDER for Time Schedule as to 104 Notice of Appeal, filed by Tara Newberry, Caren Cafferata-Jenkins, Katrina Miller, Antioco Carrillo, Sara Geiger, Adele Terranova, Karen Vibe, Beverly Sevcik, Mikyla Miller, Karen Goody, Greg Flamer, Theodore Small, Megan Lanz, Farrell Cafferata-Jenkins, Mary Baranovich, Fletcher Whitwell. USCA Case Number 12-17668. (MMM) (Entered: 12/04/2012)
109 Copy of Letter from Supreme Court of the United States re 104 Notice of Appeal: The petition for a writ of certiorari in the above entitled case was filed on December 5, 2012 and placed on the docket December 6, 2012 as No. 12689. (MMM) (Entered: 12/07/2012)
110 Copy of Letter dated 6/27/13 from the Supreme Court of the United States re 104 Notice of Appeal. The petition for a writ of certiorari before judgment is denied. (MMM) (Entered: 07/12/2013)

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https://ecf.nvd.uscourts.gov/cgi-bin/DktRpt.pl?677180166562575-L_1_0-1

10/1/2013

Case: 12-17668 10/18/2013

ID: 8828038 DktEntry: 20-8 Page: 92 of 92(928 of 928)

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 18, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

s/ Tara L. Borelli

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 Case Nos. 12-17668, 12-16995, and 12-16998 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v.
BRIAN SANDOVAL, et al., Defendants-Appellees, and COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-
Appellee.
On Appeal from the United States District Court for the District of Nevada Case No. 2:12-CV-00578-RCJ-PAL, The Hon. Robert C. Jones, District Judge.
NATASHA N. JACKSON, et al., Plaintiffs-Appellants, v.
NEIL S. ABERCROMBIE, Governor, State of Hawai‘i, Defendant-Appellant, LORETTA J. FUDDY, Director, Department of Health, State of Hawai‘i, Defendant-Appellee, and HAWAI‘I FAMILY FORUM, Intervenor-Defendant-Appellee.
On Appeal from the United States District Court for the District of Hawai‘i Case No. 1:11-cv-00734-ACK-KSC, The Hon. Alan C. Kay, Sr., District Judge.
AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NEVADA AND THE AMERICAN CIVIL
LIBERTIES UNION FOUNDATION OF HAWAI‘I Staci J. Pratt, Nevada Bar # 12630 Allen Lichtenstein, Nevada Bar # 3992 ACLU of Nevada Foundation 601 S. Rancho Drive, Suite B-11 Las Vegas, NV 89106 Telephone: (702) 366-1536 x 201 pratt@aclunv.org allenaclunv@lvcoxmail.com Attorneys for Amicus Curiae American Civil Liberties Union of Nevada Foundation

Daniel M. Gluck, HSBA # 7959 Lois K. Perrin, HSBA # 8065 ACLU of Hawai‘i Foundation P.O. Box 3410 Honolulu, HI 96801 Telephone: (808) 522-5908 Facsimile: (808) 522-5909 dgluck@acluHawai‘i.org lperrin@acluHawai‘i.org Attorneys for Amicus Curiae American Civil Liberties Union of Hawai‘i Foundation

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(c), Amicus Curiae, the ACLU Foundations of Nevada and Hawai‘i, state that they are nonprofit corporations; that they do not have any parent corporations; and that no publicly held company owns any stock in the Amicus Curiae.
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TABLE OF CONTENTS Page
CORPORATE DISCLOSURE STATEMENT…………………………………….i
TABLE OF CONTENTS…………………………………………………………..ii
STATEMENT OF AUTHORITIES……………………………………………….iii
INTEREST OF AMICI CURIAE………………………………………………….1
INTRODUCTION AND SUMMARY OF ARGUMENT…………………………2
ARGUMENT……………………………………………………………………….5
I. Even Under the Lowest Level of Constitutional Scrutiny, a Classification Must Be Justified by an Independent and Legitimate Purpose That Is Rationally Advanced by the Classification………………………………5
II. Nevada’s and Hawai‘i’s Marriage Bans Do Not Rationally Advance Any Independent and Legitimate Purposes…………………………………...9
A. Nevada’s and Hawai‘i’s Marriage Bans Cannot Be Justified by an Asserted Interest in Maintaining a Traditional Definition of Marriage……………………………………………………………9
B. Nevada’s and Hawai‘i’s Marriage Bans Cannot Be Justified by an Asserted Interest in Encouraging Responsible Procreation by Heterosexual Couples………………………………………………..11
a. Nevada’s and Hawai‘i’s Marriage Bans Cannot Be Justified by an Asserted Interest in “Optimal Childrearing.”…………………………………………17
C. No Legitimate Interest Overcomes the Primary Purpose and Practical Effect of Nevada’s and Hawai‘i’s Marriage Bans to Disparage and Demean Same-Sex Couples and Their Families……………………21
III. CONCLUSION…………………………………………………………25
IV. CERTIFICATE OF COMPLIANCE…………………………………...26
V. CERTIFICATE OF SERVICE…………………………………………27
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STATEMENT OF AUTHORITIES
CASES Arlington Heights v. Metropolitan Housing Development Corp.,
429 US 252 (1977)................................................................................................23 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).................................................................4 Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ..............................6 Bowen v. Gilliard, 483 U.S. 587 (1987) ....................................................................3 Bowers v. Hardwick, 478 U.S. 186 (1986) ................................................................3 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)...................... passim Department of Agriculture v. Moreno, 413 U.S. 528 (1973) .................... 5, 6, 7, 11 Department of Human Services. v. Howard, 238 S.W.3d 1 (Ark. 2006) ................20 Eisenstadt v. Baird, 405 U.S. 438 (1972) ..................................................... 7, 13, 18 Florida Department of Children & Families v. Adoption of X.X.G.,
45 So.3d 79 (Fla. Dist. Ct. App. 2010) .................................................................20 Golinski v. Office of Personnel Management,
824 F. Supp. 2d 968 (N.D. Cal. 2012) ................................................. 3, 10, 15, 18 Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) .......4, 10 Heckler v. Mathews, 465 U.S. 728 (1984)...............................................................24 Heller v. Doe by Doe, 509 U.S. 312 (1993)...............................................................9
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STATEMENT OF AUTHORITIES (Continued) Hernandez v. Robles, 855 N.E.2d 1(2006) ................................................................2 High Tech Gays v. Def. Indus. Sec. Clearance Office,
895 F.2d 563 (9th Cir. 1990) ..................................................................................3 Howard v. Child Welfare Agency Rev. Bd., Nos. 1999-9881, 2004 WL 3154530 .20 In re Adoption of Doe, 2008 WL 5006172 ..............................................................20 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011)...................................................3 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ............................................ passim Jackson v. Abercrombie, 884 F.Supp.2d 1065 (2012)..................................... passim Johnson v. Robinson, 415 U.S. 361 (1974) ...................................................... 15, 16 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) .........3, 10 Lawrence v. Texas, 539 U.S. 558 (2003)......................................................... passim Loving v. Virginia, 388 U.S. 1 (1967). ......................................................................2 Marsh v. Chambers, 463 U.S. 183 (1983) ...............................................................10 Palmore v. Sidoti, 466 U.S. 429 (1984)...................................................................16 Pedersen v. Office of Personnel Management,
881 F. Supp. 2d 294 (D. Conn. 2012)........................................................ 3, 12, 18 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ......................3, 20 Plyler v. Doe, 457 U.S. 202 (1982)..........................................................................18
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STATEMENT OF AUTHORITIES (Continued) Romer v. Evans, 517 U.S. 620 (1996) ............................................................. passim Sevcik v. Sandoval, 911 F. Supp. 2d 996 (2012) ............................................. passim Turner v. Safley, 482 U.S. 78 (1987) .........................................................................2 United States v. Virginia, 518 U.S. 515 (1996) .........................................................4 United States v. Windsor, 133 S. Ct. 2675 (2013) ........................................... passim Vance v. Bradley, 440 U.S. 93 (1979) .....................................................................23 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ............................................. passim Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000)................................................21 Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972) ...........................................18 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)................................ 3, 15, 18
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INTERESTS OF AMICI CURIAE The American Civil Liberties Union (ACLU) is a nationwide, nonpartisan organization with more than 550,000 members dedicated to the defense and promotion of the guarantees of individual liberty secured by state and federal constitutions and civil rights statutes. The ACLU works around the country on behalf of lesbian, gay, bisexual and transgender people to win even-handed treatment by government; protection from discrimination in jobs, schools, housing, and public accommodations; and equal rights for same-sex couples and LGBT families. The American Civil Liberties Union Foundations of Nevada and Hawai‘i are state affiliates of the ACLU, and are similarly dedicated to protecting the rights of LGBT people and families in the states of Nevada and Hawai‘i.
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INTRODUCTION AND SUMMARY OF ARGUMENT Amici submit this single brief, per the Consent to Amici Curiae, docket 29, dated October 15, 2013, in both of the above-referenced cases to explain why the Nevada and Hawai‘i exclusions of same-sex couples from marriage violate the Equal Protection Clause of the Fourteenth Amendment under any level of constitutional scrutiny. Amici agree with Plaintiffs-Appellants in both cases that the exclusion of same-sex couples from marriage should be subjected to heightened scrutiny for three reasons. Heightened scrutiny is warranted, first, because the exclusion burdens the fundamental right to marry. Loving v. Virginia, 388 U.S. 1 (1967). “‘Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.’” In re Marriage Cases, 183 P.3d at 430 (quoting Hernandez, 855 N.E.2d at 23 (Kaye, C.J., dissenting) (brackets omitted)); see Loving, 388 U.S. 1 (exclusion of interracial couples from marriage violates Constitution); Turner v. Safley, 482 U.S. 78 (1987) (exclusion of prisoners from marriage violates the Constitution). Second, heightened scrutiny is the appropriate standard because sexual orientation classifications have all of the indicia of a suspect or quasi-suspect classification: a) gay and lesbian people have been historically subjected to discrimination; b) they have a defining characteristic that bears no relation to
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“ability to perform or contribute to society”; c) they exhibit “obvious, immutable,
or distinguishing characteristics that define them as a discrete group”; and d) the
class is “a minority or politically powerless.” Windsor v. United States, 699 F.3d
169, 181 (2d Cir. 2012) (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987));
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-41 (1985) ). For this
reason, numerous courts have recognized that classifications based on sexual
orientation warrant heightened scrutiny. Id.; Pedersen v. Office of Pers. Mgmt.,
881 F. Supp. 2d 294, 333 (D. Conn. 2012); Golinski v. Office of Pers. Mgmt., 824
F. Supp. 2d 968, 989 (N.D. Cal. 2012) ; In re Balas, 449 B.R. 567, 573-75 (Bankr.
C.D. Cal. 2011); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal.
2010) ; Varnum v. Brien, 763 N.W.2d 862, 885-96 (Iowa 2009); In re Marriage
Cases, 183 P.3d at 441-44; Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008)1.
Third, heightened scrutiny should be applied because the exclusion of same-
sex couples from marriage contains an explicit gender classification. United States
1 This Court has not analyzed the level of scrutiny required for classifications based on sexual orientation since its decision over two decades ago in High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990). That decision, which concluded that rational basis review applied to such classifications, was premised upon then-controlling precedent in Bowers v. Hardwick, 478 U.S. 186 (1986), which has been subsequently overruled by Lawrence v. Texas, 539 U.S. 558, 575 (2003). The Court should now re-examine the appropriate level of scrutiny for classifications based on sexual orientation and join the growing number of federal courts that have concluded that heightened scrutiny applies.
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v. Virginia, 518 U.S. 515, 555 (1996). The Plaintiff couples would be permitted to marry but for their genders. See Baehr v. Lewin, 852 P.2d 44, 64 (Haw. 1993) (Hawaii marriage statute regulates access to marriage “on the basis of the applicants’ sex.”); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 971 (Mass. 2003) (Greaney, J. concurring) (finding it “self-evident” that marriage ban is a “sex based” classification).
In any event, the Nevada and Hawai‘i marriage exclusions fail under even the lowest level of constitutional review. At a bare minimum, this Court must determine whether there are any independent, legitimate government interests that are rationally furthered by the exclusion of same-sex couples from marriage. Both district courts below imagined several hypothetical state interests that they concluded sufficed to justify the marriage bans under rational basis review. Yet those interests—maintaining the traditional definition of marriage, encouraging responsible procreation, and supporting “optimal childrearing”—are either not independent legitimate interests, or are not rationally furthered by the exclusion of same-sex couples from marriage.
Moreover, none of the rationales offered by the courts can overcome the unmistakable primary purpose and practical effect of the marriage bans to disparage and injure same-sex couples and satisfy the demands of equal protection. “A bare…desire to harm a politically unpopular group cannot constitute a
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legitimate government objective.” Romer v. Evans, 517 U.S. 620, 634-35 (1996), quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
The Court should therefore reverse the judgments of both district courts below.
ARGUMENT I. Even Under the Lowest Level of Constitutional Scrutiny, a
Classification Must Be Justified by an Independent and Legitimate Purpose That Is Rationally Advanced by the Classification. “Even in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the relation between the classification adopted and the object to be attained.” Romer v. Evans, 517 U.S. 620, 632 (1996). “[S]ome objectives . . . are not legitimate state interests” and, even when a law is justified by an ostensibly legitimate purpose, “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47 (1985). By requiring the justification of classifications through an independent and legitimate purpose, the Equal Protection Clause excludes the drawing of classifications for “the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633); see also U.S. v. Windsor, 133 S. Ct. 2675, 2693 (2013); Cleburne, 473 U.S. at 450; U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534
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(1973) . The Supreme Court has sometimes described this impermissible purpose as “animus” or a “bare … desire to harm a politically unpopular group.” Id.; Romer, 517 U.S. at 633); Cleburne, 473 U.S. at 447; Moreno, 413 U.S. at 534. Notably, an impermissible motive need not always reflect “malicious ill will.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). It can also take the form of “negative attitudes,” Cleburne, 473 U.S. at 448, “fear,” id., “irrational prejudice,” id. at 450, or “some instinctive mechanism to guard against people who appear to be different in some respects from ourselves,” Garrett, 531 U.S. at 374) (Kennedy, J., concurring).
The Supreme Court invoked this principle most recently in Windsor when it held that the principal provision of the federal Defense of Marriage Act (“DOMA”) violated equal protection principles because the “purpose and practical effect of the law . . . [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” Windsor, 133 S. Ct. at 2693. The Court explained that the statute was not sufficiently connected to a legitimate governmental purpose because its “interference with the equal dignity of same-sex marriages . . . was more than an incidental effect of the federal statute. It was its essence.” Id.
Even without direct evidence of discriminatory purpose, the absence of any logical connection to a legitimate purpose can lead to an inference of an
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impermissible intent to discriminate. See Romer, 517 U.S. at 632) (reasoning that the law’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects”); Cleburne, 473 U.S. at 448-50 (reasoning that because a home for developmentally disabled adults posed no threat to city’s interests other than those also posed by permitted uses, requiring a special zoning permit in this case “appears to us to rest on an irrational prejudice”).
Thus, even when the government offers an ostensibly legitimate purpose, the court must also examine the statute’s connection to that purpose to assess whether it is too “attenuated” to rationally advance the asserted governmental interest. Cleburne, 473 U.S. at 446; see also Moreno, 413 U.S. at 535-36 (invalidating law on rational-basis review because “even if we were to accept as rational the Government’s wholly unsubstantiated assumptions concerning [hippies] . . . we still could not agree with the Government’s conclusion that the denial of essential federal food assistance . . . constitutes a rational effort to deal with these concerns”); Eisenstadt v. Baird, 405 U.S. 438, 448-49 (1972) (invalidating law on rational-basis review because, even if deterring premarital sex is a legitimate governmental interest, “the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective”). This
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search for a meaningful connection between a classification and the asserted governmental interest provides a safeguard against intentional discrimination.
The Supreme Court has been particularly likely to find a classification too attenuated to serve an asserted government interest when the law imposes a sweeping disadvantage on a group that is grossly out of proportion to accomplishing that purpose. For example, in Romer), the Court invalidated a Colorado constitutional amendment excluding gay people from eligibility for nondiscrimination protections because, the law “identifie[d] persons by a single trait and then denie[d] them protection across the board.” 517 U.S. at 633). Similarly, in Windsor the Supreme Court invalidated the challenged section of DOMA as not sufficiently related to any legitimate governmental purpose in part because it was “a system-wide enactment with no identified connection” to any particular government program. Windsor, 133 S. Ct. at 2694. In such situations, the law’s breadth may “outrun and belie any legitimate justifications that may be claimed for it.” Romer, 517 U.S. at 635); see also id. (“The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them”).
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II. Nevada’s and Hawai‘i’s Marriage Bans Do Not Rationally Advance Any Independent and Legitimate Purposes. Nevada’s and Hawai‘i’s marriage bans share all the hallmarks of irrational
discrimination present in prior Supreme Court cases striking down laws for violating even the lowest level of equal protection scrutiny.
A. Nevada’s and Hawai‘i’s Marriage Bans Cannot Be Justified by an Asserted Interest in Maintaining a Traditional Definition of Marriage.
In order to survive constitutional scrutiny, Nevada’s and Hawai‘i’s marriage bans must be justified by some legitimate state interest other than simply maintaining a “traditional” definition of marriage, as suggested by the district courts below. See Sevcik, 911 F. Supp. 2d at 1014 (“The protection of the traditional institution of marriage . . . is a legitimate state interest.”). “Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller v. Doe by Doe, 509 U.S. 312, 326-27 (1993). Indeed, the fact that a form of discrimination has been “traditional” is a reason to be more skeptical of its rationality. “The Court must be especially vigilant in evaluating the rationality of any classification involving a group that has been subjected to a tradition of disfavor for a traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification.” Cleburne, 473 U.S. at 454 n.6 (Stevens, J., concurring) (alterations incorporated; internal quotation marks omitted); see also Marsh v. Chambers, 463 U.S. 183, 791-
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92 (1983) (longstanding practice should not be “taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society”); In re Marriage Cases, 183 P.3d 384, 853-54 (Cal. 2008 (“[E]ven the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions.”). As the Supreme Court has explained, “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.” Lawrence, 539 U.S. at 579)
Regarding laws that exclude same-sex couples from marriage, “the justification of ‘tradition’ does not explain the classification; it merely repeats it. Simply put, a history or tradition of discrimination—no matter how entrenched— does not make the discrimination constitutional. . . .” Kerrigan, 957 A.2d at 478 (citation omitted); accord Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 961 n.23 (Mass. 2003) (“[I]t is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been.”); Varnum, 763 N.W.2d at 898) (asking “whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage” results in “empty analysis”); see also Golinski, 824 F. Supp. 2d at 993) (“Tradition alone . . . cannot form an adequate justification for a
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law. . . . Instead, the government must have an interest separate and apart from the fact of tradition itself.”) (citations omitted).
Ultimately, “‘preserving the traditional institution of marriage’ is just a disingenuous way of describing the [s]tate’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601) (Scalia, J., dissenting) (emphasis in original). That intent to discriminate is not a rational basis for perpetuating discrimination. See Windsor, 133 S. Ct. at 2692; Romer, 517 U.S. at 633; Cleburne, 473 U.S. at 450; Moreno, 413 U.S. at 534
B. Nevada’s and Hawai‘i’s Marriage Bans Cannot Be Justified by an Asserted Interest in Encouraging Responsible Procreation by Heterosexual Couples.
There is no rational connection between Nevada’s and Hawai‘i’s marriage bans and an asserted state interest in encouraging responsible procreation by heterosexual couples. Both district courts erred in concluding that any legitimate interest the states of Nevada and Hawai‘i have in responsible procreation is in any way furthered by excluding same-sex couples from marriage.
If, as described by both district courts, the end goal of responsible procreation is to increase stability for children through the state’s official recognition and protection of enduring family units, then it is simply wrong to conclude that a state’s interest in responsible procreation somehow does not apply to gay people. See Jackson, 884 F. Supp. 2d. at 1111-1112; Sevcik, 911 F. Supp.
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2d. at 1015-1016. Lesbian and gay couples have children through assisted reproduction and through adoption, and the government has just as strong an interest in encouraging such procreation and child-rearing take place in the stable context of marriage. See Varnum v. Brien, 763 N.W.2d 862, 902 (Iowa 2009) (“Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage. Gay and lesbian persons are capable of procreation.”); In re Marriage Cases, 183 P.3d at 433 (“[A] stable two-parent family relationship, supported by the state’s official recognition and protection, is equally as important for the numerous children . . . who are being raised by same-sex couples as for those children being raised by opposite-sex couples (whether they are biological parents or adoptive parents).”); Pedersen, 881 F. Supp. 2d at 339 (“Assuming, as Congress has, that the marital context provides the optimal environment to rear children as opposed to non-marital circumstances, it is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared.”).
The district courts in Sevcik and Jackson, however, focused on the ability of heterosexual couples to procreate accidentally, and described as a legitimate state purpose decreasing the number of children accidentally born out of wedlock. See
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Jackson, 884 F. Supp. 2d. at 1112; Sevcik, 911 F. Supp. 2d. at 1015-1016. But whether or not encouraging accidental procreation to take place in the context of a stable relationship might be considered by some people to be one of the purposes of marriage, it is indisputably not the only purpose that marriage serves for Nevada and Hawai‘i families today. “[M]arriage is more than a routine classification for purposes of certain statutory benefits” and is “a far-reaching legal acknowledgment of the intimate relationship between two people.” Windsor, 133 S. Ct. at 2692. Marriage in both Nevada and Hawai‘i is tied a wide array of governmental programs and protections that have nothing to do with procreation (let alone, accidental procreation). See In re Marriage Cases, 183 P.3d at 432 (“[A]lthough promoting and facilitating a stable environment for the procreation and raising of children is unquestionably one of the vitally important purposes underlying the institution of marriage and the constitutional right to marry . . . this right is not confined to, or restrictively defined by, that purpose alone.”).
The fact that same-sex couples cannot procreate by accident does not provide a rational basis for excluding those couples from a status that has purposes far beyond creating a stable environment for children accidentally conceived. As in Romer, “[t]he breadth of the [marriage bans] is so far removed from these particular justifications that [it is] impossible to credit them.” Romer, 517 U.S. at 635); see also Eisenstadt, 405 U.S. at 449) (finding law discriminating between
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married and unmarried individuals in access to contraceptives “so riddled with exceptions” that the interest claimed by the government “cannot reasonably be regarded as its aim”).
In any event, Nevada’s and Hawai‘i’s marriage bans simply do not classify based on the ability to accidentally procreate; they classify based on the sex of the partners regardless of their procreative abilities. See Lawrence, 539 U.S. at 604) (Scalia, J., dissenting) (“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”). Because neither Nevada nor Hawai‘i conditions the right to marry on procreative ability, they cannot selectively rely on accidental procreation only when it comes to same-sex couples. Cf. Cleburne, 473 U.S. at 450 (“[T]he expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of danger to other residents fail rationally to justify singling out a home [for people with disabilities] for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood.”).
Finally, there is simply no rational connection between excluding same-sex couples from marriage and encouraging heterosexual couples to have children within the institution of marriage. To the extent that the protections accompanying
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marriage encourage heterosexual couples to marry before procreating, those
incentives existed before Nevada and Hawai‘i passed their marriage bans. And
those incentives will still exist if the marriage bans are stuck down. See Varnum,
763 N.W.2d at 901-02) (“While heterosexual marriage does lead to procreation,
the argument by the County fails to address the real issue[:] . . . whether exclusion
of gay and lesbian individuals from the institution of civil marriage will result in
more procreation? If procreation is the true objective, then the proffered
classification must work to achieve that objective.”); see also Windsor, 699 F.3d at
188 (“DOMA does not provide any incremental reason for opposite-sex couples to
engage in ‘responsible procreation.’ Incentives for opposite-sex couples to marry
and procreate (or not) were the same after DOMA was enacted as they were
before.” (footnotes omitted)); Golinski, 824 F. Supp. 2d at 998) (“Denying federal
benefits to same-sex married couples has no rational effect on the procreation and child-rearing practices of opposite-sex married (or unmarried) couples.”).2
2 The district court in Jackson said that the state need only show that a legitimate state interest be advanced by including heterosexual couples in marriage, as opposed to showing the legitimate interest is advanced by excluding same-sex couples. 884 F. Supp. 2d at 1106 (quoting Johnson v. Robinson, 415 U.S. 361, 382-83 (1974), for the proposition that a classification subject to rational basis review will be upheld if “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.”). But Nevada and Hawaii’s marriage amendments were aimed at exclusion, not inclusion. Moreover, Johnson is inapposite because by the time the Court concluded that a statute could constitutionally provide benefits for veterans but not conscientious objectors, it had already deemed veterans and conscientious objectors dissimilarly
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Despite the continuity of incentives for heterosexual couples to marry, the Sevcik court hypothesized that allowing same-sex couples to marry would discourage heterosexual couples from marrying because “it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and enter into it less frequently.” Sevcik, 911 F. Supp. 2d. at 1016; see also Jackson, 884 F. Supp. 2d at 1109 (“The legislature could rationally speculate that by reserving the name ‘marriage’ to opposite-sex couples, Hawai‘i’s marriage laws provide special promotion and encouragement . . . .”). But the hypothesis that some heterosexuals will devalue marriage if gay couples are included in the institution is premised on those individuals’ dislike or disapproval of same-sex couples. But while “[p]rivate biases may be outside the reach of the law, . . . the law cannot, directly or indirectly, give them effect.”Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Courts cannot justify exclusion of same-sex couples from marriage on the hypothesis that some heterosexuals’ disapproval of such couples rises to the level that they would
situated with respect to the need for assistance in readjusting to civilian life. Johnson, 415 U.S. at 378). Here, both Nevada and Hawai‘i law deem same-sex couples no different than heterosexual couples with respect to all the protections and responsibilities of marriage, but continue to deny same-sex couples the designation of marriage.
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rather forego marriage for themselves than join an institution that includes samesex couples.
a. Nevada’s and Hawai‘i’s Marriage Bans Cannot Be Justified by an Asserted Interest in “Optimal Childrearing.”
The Jackson court concluded that a legitimate purpose of Hawai‘i’s discrimination against same-sex couples in marriage was to “promote the ideal that children be raised by both a mother and a father in a stable family unit.” 884 F. Supp. 2d at 1114; see also Sevcik, 911 F. Supp. 2d at 1016 (finding the Jackson court’s “conclusions concerning the rational bases for Hawai‘i’s marriage-civil union regime equally persuasive as applied to Nevada’s marriage-domestic partnership regime”). But even if it were rational for legislators to speculate that children raised by heterosexual couples are better adjusted than children raised by gay and lesbian couples—and it is not—there is simply no rational connection between Nevada’s and Hawai‘i’s marriage bans and the asserted goal.
First, Nevada’s and Hawai‘i’s marriage bans do not prevent gay couples from having children. The only effect that Nevada’s and Hawai‘i’s marriage bans have on children’s well-being is that they harm the children of same-sex couples who are denied the protection and stability of having parents who are married. Like the DOMA statute invalidated in Windsor, Nevada’s and Hawai‘i’s marriage bans serve only to “humiliate” the “children now being raised by same-sex couples” and “make[] it even more difficult for the children to understand the
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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. To the extent that Nevada’s and Hawai‘i’s marriage bans visit these harms on children as a way to attempt (albeit irrationally) to deter other same-sex couples from having children, the Supreme Court has invalidated similar attempts to incentivize parents by punishing children as “‘illogical and unjust.’” Plyler v. Doe, 457 U.S. 202, 220 (1982) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972) ). “‘Obviously, no child is responsible for his birth and penalizing the . . . child is an ineffectual—as well as unjust—way of deterring the parent.’” Id. (quoting Weber, 406 U.S. at 175).3
Second, excluding same-sex couples from marrying does nothing to prevent heterosexual couples from procreating out of wedlock or encourage them to procreate within marriage, biologically or otherwise. See Windsor, 699 F.3d at 188; Golinski, 824 F. Supp. 2d at 998; Pedersen, 881 F. Supp. 2d at 340-41; Varnum, 763 N.W.2d at 901). Although the district court in Jackson concluded that providing heterosexual couples with marriage “affirmatively encourage[s]” the parenthood of heterosexual couples, 844 F. Supp. 2d. at 1116, it only makes sense
3 Any law adopted with the purpose of burdening gay people’s ability to procreate would also demand strict scrutiny for implicating the fundamental right to decide “‘whether to bear or beget a child.’” Planned Parenthood of SE Penn. v. Casey, 505 U.S. 833, 851 (1992) (quoting Eisenstadt, 405 U.S. at 453)); see Pedersen, 881 F. Supp. 2d at 341.
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that this could not similarly be accomplished without excluding same-sex couples from marriage if one accepts the premise laid out earlier in Jackson that heterosexual couples will value marriage less if same-sex couples are able to marry. Id. at 1109. As discussed above, however, such an interest merely validates private prejudice and is not legitimate as a state interest under any level of constitutional scrutiny.
The lack of rational connection between the marriage bans and the asserted goals of encouraging children to be raised by heterosexual couples is sufficient to undermine the rationale as a rational basis, even without considering whether the government has a legitimate basis for preferring different-sex over same-sex parents. But there is no such legitimate basis—as Nevada and Hawai‘i have recognized. The suggestion that Nevada and Hawai‘i were trying to “promote the ideal that children be raised by both a mother and a father” cannot be squared with their extension, through domestic partnership and civil union laws, of all the protections and responsibilities of marriage to same-sex couples, including the parenting protections and responsibilities. The legislatures’ equal treatment of different-sex and same-sex parents (with the exception of the designation of marriage), belies any purported interest of either state in a preference of differentsex over same-sex parents.
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Moreover, the overwhelming scientific consensus, based on decades of peerreviewed scientific research, shows unequivocally that children raised by same-sex couples are just as well adjusted as those raised by heterosexual couples. See Perry, 704 F. Supp. 2d at 980 (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”); 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. Fla. Dep’t of Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Rev. Bd., Nos. 19999881, 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 as foster parents] and the health, safety, and welfare of the foster children.”), aff’d sub nom. Dep’t of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006); Varnum, 763 N.W.2d at 899) and n.26 (concluding, after reviewing “an abundance of evidence and research,” that “opinions that dual-gender parenting is
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the optimal environment for children . . . is based more on stereotype than anything else”); Golinski, 824 F. Supp. 2d at 991 (“More than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have overwhelmingly demonstrated that children raised by same-sex parents are as likely to be emotionally healthy, and educationally and socially successful as those raised by opposite-sex parents.”).
C. No Legitimate Interest Overcomes the Primary Purpose and Practical Effect of Nevada’s and Hawai‘i’s Marriage Bans to Disparage and Demean Same-Sex Couples and Their Families. Because there is no rational connection between Nevada’s and Hawai‘i’s
marriage bans and any of the asserted state interests, this Court can conclude that the marriage bans violate equal protection even without considering whether they are motivated by an impermissible purpose. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (allegations of irrational discrimination “quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis”). In both cases, however, the lack of any connection between Nevada’s and Hawai‘i’s marriage bans and any legitimate state interest also confirms the inescapable conclusion that they were passed because of, not in spite of, the harm they would inflict on same-sex couples. And, even if it were possible to hypothesize a rational connection between Nevada’s and Hawai‘i’s marriage bans and some legitimate governmental interest—and there is
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none—Nevada’s and Hawai‘i’s marriage bans would still violate equal protection
because no hypothetical justification can overcome the unmistakable primary
purpose and practical effect of the marriage bans to disparage and injure same-sex
couples.
The Supreme Court in Windsor recently reaffirmed that when the primary
purpose and effect of a law is to harm an identifiable group, the fact that the law
may also incidentally serve some other neutral governmental interest cannot save it
from unconstitutionality. In defending the constitutionality of DOMA, the
Bipartisan Legal Advisory Group (“BLAG”) argued that the statute helped serve a
variety of federal interests in promoting efficiency and uniformity, as well as the
same purported state interests that Defendant Rainey relies upon in this case.
According to BLAG’s merits brief:
Congress could rationally decide to retain the traditional definition for the same basic reasons that states adopted the traditional definition in the first place and that many continue to retain it: There is a unique relationship between marriage and procreation that stems from marriage’s origins as a means to address the tendency of opposite-sex relationships to produce unintended and unplanned offspring. There is nothing irrational about declining to extend marriage to same-sex relationships that, whatever their other similarities to opposite-sex relationships, simply do not share that same tendency. Congress likewise could rationally decide to foster relationships in which children are raised by both of their biological parents. See Merits Brief of Bipartisan Legal Advisory Group in United States v. Windsor,
2013 WL 267026, at *21 (2013) . But the Supreme Court held that none of
BLAG’s rationalizations could save the law. The Court explained that “[t]he
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principal purpose [of DOMA] [was] to impose inequality, not for other reasons like governmental efficiency,” and “no legitimate purpose overcomes the purpose and effect to disparage and injure” same-sex couples and their families. Windsor, 133 S. Ct at 2694, 2696; see also Vance v. Bradley, 440 U.S. 93, 97 (1979) (rationalbasis review is deferential “absent some reason to infer antipathy”); Lawrence, 539 U.S. at 580) (O’Connor, J., concurring) (“When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”).
The historical background of each of the marriage bans reflects a targeted attempt to exclude same-sex couples from marriage, not a mere side-effect of some broader public policy. Cf. Windsor, 133 S. Ct. at 2693 (examining historical context of DOMA); Arlington Heights, 429 U.S. at 266-67 (explaining “historical background of the decision” is relevant when determining legislative intent). The marriage bans were not enacted long ago at a time when “many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” Windsor, 133 S. Ct. at 2689. They were enacted as specific responses to developments either in other jurisdictions (Nevada) or in their own jurisdiction (Hawai‘i), wherein same-sex couples were on the verge of obtaining the freedom
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to marry. In each case, the marriage bans did not simply represent a failure to include same-sex couples within the broader public policies advanced by marriage; they were specific, targeted efforts to exclude same-sex couples.
In addition to all the other contemporaneous evidence of an impermissible purpose, the inescapable “practical effect” of Nevada’s and Hawai‘i’s marriage bans is “to impose a disadvantage, a separate status, and so a stigma upon” samesex couples in the eyes of the state and the broader community. Windsor, 133 S. Ct at 2693; see also Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (“[A]s we have repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community . . . can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”) (footnote and citations omitted). The marriage bans collectively “diminish[] the stability and predictability of basic personal relations” of gay people and “demeans the couple, whose moral and sexual choices the Constitution protects.” Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. 558 (2003)). The marriage bans thus constitute an “official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples” and that “that it is
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permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.” In re Marriage Cases, 183 P.3d 384 at 452. That official statement of inequality is “in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Lawrence, 539 U.S. at 575)
The unmistakable intent of the marriage bans is to impose inequality on gay people and their intimate relationships. As noted above, Nevada’s and Hawai‘i’s marriage bans are not rationally related to any legitimate purpose. But even if there were any plausible connection between the marriage bans and some legitimate purpose, that incidental connection could not “overcome[] the purpose and effect to disparage and to injure” same-sex couples and their families. Windsor, 133 S. Ct at 2696.
CONCLUSION Plaintiffs-Appellants in both cases below seek from this Court vindication of their fundamental right to marry, as well as a conclusion that the Nevada and Hawai‘i exclusions of same-sex couples from marriage constitutes unconstitutional discrimination based on sex and sexual orientation. Amici curiae also urge the Court to rule on these grounds. For the reasons discussed above, the Court should
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conclude that Nevada’s and Hawai‘i’s marriage bans violate Plaintiffs-Appellants’ equal protection rights under any standard of constitutional scrutiny. Staci J. Pratt, Nevada Bar # 12630 Allen Lichtenstein, Nevada Bar # 3992 ACLU of Nevada Foundation 601 S. Rancho Drive, Suite B-11 Las Vegas, NV 89106 Telephone: (702) 366-1536 x 201 pratt@aclunv.org allenaclunv@lvcoxmail.com Attorneys for Amicus Curiae American Civil Liberties Union of Nevada Foundation Daniel M. Gluck, HSBA #7959 Lois K. Perrin, HSBA #8065 ACLU of Hawai‘i Foundation P.O. Box 3410 Honolulu, HI 96801 Telephone: (808) 522-5908 Facsimile: (808) 522-5909 dgluck@acluHawai‘i.org lperrin@acluHawai‘i.org Attorneys for Amicus Curiae American Civil Liberties Union of Hawai‘i Foundation
CERTIFICATE OF COMPLIANCE
I certify that this brief is 5,882 words, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as applicable. Due to its size, this brief is accompanied by a motion for leave to file an oversize brief pursuant to Circuit Rule 32-2.
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DATED this 25th day of October 2013. /s/ Staci Pratt Staci J. Pratt, Nevada Bar # 12630 Allen Lichtenstein, Nevada Bar#3992 ACLU of Nevada Foundation 601 S. Rancho Drive, Suite B-11 Las Vegas, NV 89106 Telephone: (702) 366-1536 x 201 pratt@aclunv.org CERTIFICATE OF SERVICE
I hereby certify that on October 25, 2013, I electronically filed the foregoing Brief of Amicus Curiae with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ Allen Lichtenstein General Counsel of the ACLU of Nevada
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 1

2

3

4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

* * *

7 BEVERLY SEVCIK, et al.

Case No. 2:12-CV-578 JCM (PAL)

8

Plaintiff(s),

ORDER

9

v.

10 BRIAN SANDOVAL, et al.,

11

Defendant(s).

12

On October 7, 2014, the Ninth Circuit reversed and remanded the district court’s

13 judgment in this case. The Ninth Circuit directed that the district court promptly issue an

14 injunction “permanently enjoining the state, its political subdivisions, and its officers,

15 employees, and agents, from enforcing any constitutional provision, statute, regulation or policy

16 preventing otherwise qualified same-sex couples from marrying, or denying recognition to

17 marriages celebrated in other jurisdictions which, if the spouses were not of the same sex, would

18 be valid under the laws of the state.”

19

On October 7, 2014, the Ninth Circuit issued its mandate holding: “The judgment of this

20 Court, entered October 7, 2014, takes effect this date.”

21

Accordingly, the court hereby permanently enjoins the state of Nevada, its political

22 subdivisions, and its officers, employees, and agents, from enforcing any constitutional

23 provision, statute, regulation or policy preventing otherwise qualified same-sex couples from

24 marrying, or denying recognition to marriages celebrated in other jurisdictions which, if the

25 spouses were not of the same sex, would be valid under the laws of the state.

26

IT IS SO ORDERED October 9, 2014.

27

__________________________________________

28

UNITED STATES DISTRICT JUDGE

James C. Mahan U.S. District Judge

 
 Supreme Court of the United States
No. 14A374
C.L. “BUTCH” OTTER, GOVERNOR OF IDAHO, ET AL., Applicants
v.
SUSAN LATTA, ET AL.
O R D E R
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

Dated this 8th day of October 2014.

/s/ Anthony M. Kennedy Associate Justice of the Supreme
Court of the United States

 
 Supreme Court of the United States
No. 14A374
C.L. “BUTCH” OTTER, GOVERNOR OF IDAHO, ET AL., Applicants
v.
SUSAN LATTA, ET AL.
O R D E R
UPON FURTHER CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

Dated this 8th day of October 2014.

/s/ Anthony M. Kennedy Associate Justice of the Supreme
Court of the United States

 
 Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 1 of 25
United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:12−cv−00578−RCJ−PAL

CLOSED

Sevcik et al v. Sandoval et al Assigned to: Chief Judge Robert C. Jones Referred to: Magistrate Judge Peggy A. Leen Cause: 42:1983 Civil Rights Act
Plaintiff
Beverly Sevcik

Date Filed: 04/10/2012 Date Terminated: 11/26/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Carla Christofferson O'Melveny &Myers LLP 400 S. Hope Street Los Angeles, CA 90071 213−430−8359 Email: cchristofferson@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
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Jon W. Davidson Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Boulevard Los Angeles, CA 90010 213−382−7600 Email: jdavidson@lambdalegal.org ATTORNEY TO BE NOTICED
Marek P. Bute Snell &Wilmer LLP 3883 Howard Hughes Parkway Ste 1000 Las Vegas, NV 89169 (702) 784−5266 Fax: (702) 784−5252 Email: mbute@swlaw.com ATTORNEY TO BE NOTICED
Melanie Cristol O'Melveny &Myers LLP 400 South Hope Street Los Angeles, CA 90503 213−430−8180 Email: mcristol@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn Lambda Legal Defense &Education Fund, Inc. 3325 Wilshire Blvd. Suite 1300 Los Angeles, CA 90010

Case: 2:12-cv-578
Plaintiff Mary Baranovich

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Case: 2:12-cv-578
Plaintiff Antioco Carrillo

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Case: 2:12-cv-578 Plaintiff Theodore Small
Plaintiff Karen Goody

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Case: 2:12-cv-578
Plaintiff Karen Vibe

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Case: 2:12-cv-578 Plaintiff Fletcher Whitwell
Plaintiff Greg Flamer

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Case: 2:12-cv-578
Plaintiff Mikyla Miller

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Case: 2:12-cv-578
Plaintiff Katrina Miller

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Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 9 of 25

Plaintiff Adele Terranova
Plaintiff Tara Newberry

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Case: 2:12-cv-578
Plaintiff Caren Cafferata−Jenkins

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Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE

Case: 2:12-cv-578
Plaintiff Farrell Cafferata−Jenkins

As of: 11/30/2012 05:56 PM PST 11 of 25
ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 12 of 25

Plaintiff Megan Lanz
Plaintiff Sara Geiger

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address)

Case: 2:12-cv-578

As of: 11/30/2012 05:56 PM PST 13 of 25
ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) ATTORNEY TO BE NOTICED
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Brian Sandoval in his official capacity as Governor of the State of Nevada
Defendant Diana Alba in her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County, Nevada
Defendant Amy Harvey in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada

represented by C. Wayne Howle Nevada Attorney General's Office 100 North Carson Street Carson City, NV 89701−4717 (775) 684−1227 Fax: (775) 684−1108 Email: whowle@ag.nv.gov ATTORNEY TO BE NOTICED
represented by Michael L Foley Clark County District Attorney's Office Civil Division 500 S. Grand Central Pkwy 5th Flr P.O.Box 552215 Las Vegas, NV 89155−2215 702−455−4761 Fax: 702−382−5178 Email: MICHAEL.FOLEY@ccdanv.com ATTORNEY TO BE NOTICED
represented by Herbert B. Kaplan . P.O. Box 30083 Reno, NV 89520 775−337−5700 Fax: 775−337−5732 Email: hkaplan@da.washoecounty.us LEAD ATTORNEY

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 14 of 25

ATTORNEY TO BE NOTICED

Defendant
Alan Glover in his official capacity as the Clerk−Recorder for Carson City, Nevada

represented by Joseph L Ward , Jr. Carson City District Attorney's Office Civil Division 885 East Musser Street, Suite 2030 Carson City, NV 89701 775−887−2070 Fax: 775−887−2129 Email: jward@carson.org ATTORNEY TO BE NOTICED

Randal R. Munn . 885 East Musser Street, #2030 Carson City, NV 89701 775−887−2070 Fax: 775−887−2129 Email: RMunn@carson.org ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
Coalition for the Protection of Marriage

represented by Craig G. Taylor Belnap Stewart Taylor &Morris PLLC 12550 W. Explorer Drive Boise, ID 83713 208−345−3333 Fax: 208−345−4461 Email: cgtaylor@belnaplaw.com ATTORNEY TO BE NOTICED
D. Chris Albright Albright Stoddard Warnick &Albright 801 S. Rancho Drive Suite D−4 Las Vegas, NV 89106 702−384−7111 Fax: 702−384−0605 Email: dca@albrightstoddard.com ATTORNEY TO BE NOTICED
Daniel W. Bower Belnap Stewart Taylor &Morris PLLC 12550 W. Explorer Drive Boise, ID 83713 208−345−3333 Fax: 208−345−4461 Email: dbower@belnaplaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Monte N Stewart Belnap Stewart Taylor &Morris PLLC 12550 W. Explorer Drive Suite 100 Boise, ID 83713 208−345−3333 Fax: 208−345−4461 Email: stewart@belnaplaw.com ATTORNEY TO BE NOTICED

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 15 of 25

Date Filed 04/10/2012 04/10/2012 04/10/2012 04/10/2012
04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 350 receipt number 0978−2331341), filed by Adele Terranova, Fletcher Whitwell, Mary Baranovich, Beverly Sevcik, Caren Cafferata−Jenkins, Sara Geiger, Karen Vibe, Antioco Carrillo, Mikyla Miller, Tara Newberry, Farrell Cafferata−Jenkins, Megan Lanz, Greg Flamer, Theodore Small, Katrina Miller, Karen Goody. Certificate of Interested Parties due by 4/20/2012. Proof of service due by 8/8/2012. (Attachments: # 1 Civil Cover Sheet) (Dove, Kelly) (Entered: 04/10/2012)
Case assigned to Judge Roger L. Hunt and Magistrate Judge Peggy A. Leen. (MMM) (Entered: 04/10/2012)
2 NOTICE PURSUANT TO LOCAL RULE IB 2−2: In accordance with 28 USC § 636(c) and FRCP 73, the parties in this action are provided with a link to the "AO 85 Notice of Availability, Consent, and Order of Reference − Exercise of Jurisdiction by a U.S. Magistrate Judge" form on the Court's website − www.nvd.uscourts.gov. Consent forms should NOT be electronically filed. Upon consent of all parties, counsel are advised to manually file the form with the Clerk's Office. (no image attached) (MMM) (Entered: 04/10/2012)
3 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 10−2. Counsel Jon W. Davidson, Tara L. Borelli, Peter C. Renn, Shelbi Day, Carla Christofferson, Dawn Sestito, Melanie Cristol, Rahi Azizi to comply with completion and electronic filing of the Designation of Local Counsel and Verified Petition. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov/Forms.aspx. Counsel is also required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of pleadings. Please visit the Court's website www.nvd.uscourts.gov to register Attorney(s). Verified Petition due by 5/25/2012.(no image attached) (MMM) (Entered: 04/10/2012)
4 CERTIFICATE of Interested Parties filed by Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. There are no known interested parties other than those participating in the case. (Dove, Kelly) (Entered: 04/10/2012)
5 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Jon W. Davidson and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332407) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
6 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Tara L. Borelli and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332426) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
7 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Peter C. Renn and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332448) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
8 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Shelbi D. Day and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332457) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins,

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 16 of 25

04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012

Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
9 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Carla Christofferson and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332480) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
10 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Dawn Sestito and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332504) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
11 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Melanie Cristol and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332521) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
12 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Rahi Azizi and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332544) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
13 ORDER Granting 5 Verified Petition for Permission to Practice Pro Hac Vice by Jon Davidson and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
14 ORDER Granting 6 Verified Petition for Permission to Practice Pro Hac Vice by Tara L. Borelli and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
15 ORDER Granting 7 Verified Petition for Permission to Practice Pro Hac Vice by Peter C. Renn and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
16 ORDER Granting 8 Verified Petition for Permission to Practice Pro Hac Vice by Shelbi D. Day and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
17 ORDER Granting 9 Verified Petition for Permission to Practice Pro Hac Vice by Carla J. Christofferson and approving Designation of Local Counsel Kelly H. Dove

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 17 of 25

04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/13/2012 04/17/2012
04/19/2012

for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
18 ORDER Granting 10 Verified Petition for Permission to Practice Pro Hac Vice by Dawn Sestito and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
19 ORDER Granting 11 Verified Petition for Permission to Practice Pro Hac Vice by Melanie Cristol and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
20 ORDER Granting 12 Verified Petition for Permission to Practice Pro Hac Vice by Rahi Azizi and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
21 PROPOSED SUMMONS to be issued for Defendant Sandoval, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
22 PROPOSED SUMMONS to be issued for Defendant Alba, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
23 PROPOSED SUMMONS to be issued for Defendant Harvey, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
24 PROPOSED SUMMONS to be issued for Defendant Glover, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
25 Summons Issued as to Diana Alba, Alan Glover, Amy Harvey, Brian Sandoval. (Attachments: # 1 summons issued as to Diana Alba, # 2 summons issued as to Amy Harvey, # 3 summons issued as to Alan Glover)(MMM) (Entered: 04/13/2012)
26 SUMMONS Returned Executed by Adele Terranova, Fletcher Whitwell, Mary Baranovich, Beverly Sevcik, Caren Cafferata−Jenkins, Sara Geiger, Karen Vibe, Antioco Carrillo, Mikyla Miller, Tara Newberry, Farrell Cafferata−Jenkins, Megan Lanz, Greg Flamer, Theodore Small, Katrina Miller, Karen Goody re 25 Summons Issued. Diana Alba served on 4/13/2012, answer due 5/4/2012; Alan Glover served on 4/13/2012, answer due 5/4/2012; Amy Harvey served on 4/13/2012, answer due 5/4/2012; Brian Sandoval served on 4/13/2012, answer due 5/4/2012. (Renn, Peter) (Entered: 04/17/2012)
27 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on 4/19/2012. IT IS ORDERED that this case is reassigned to Chief Judge Robert C. Jones for all further proceedings. Judge Roger L. Hunt no longer

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 18 of 25

04/20/2012 05/03/2012 05/15/2012 05/16/2012
05/17/2012 05/18/2012 05/18/2012 05/18/2012 05/18/2012 05/29/2012 05/29/2012 06/01/2012
06/01/2012

assigned to case. All further documents must bear the correct case number 2:12−cv−00578−RCJ−PAL. (no image attached) (Copies have been distributed pursuant to the NEF − BLG) (Entered: 04/19/2012)
28 Mail Returned as Undeliverable re 16 Order on Verified Petition for Permission to Practice Pro Hac Vice, addressed to Shelbi D. Day. Remailed to 3325 Wilshire Blvd Ste 1300, LA, CA 90010. (MMM) (Entered: 04/20/2012)
29 STIPULATION FOR EXTENSION OF TIME to File Answer to 1 Complaint filed by Defendant Amy Harvey. (First Request) (Kaplan, Herbert) Added docket entry relationship on 5/10/12. (ASB) (Entered: 05/03/2012)
30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. Responses due by 6/1/2012. (Attachments: # 1 Appendix, # 2 Certificate of Service)(Albright, D. Chris) (Entered: 05/15/2012)
31 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 10−2. Counsel Craig G. Taylor to comply with completion and electronic filing of the Designation of Local Counsel and Verified Petition. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov/Forms.aspx. Counsel is also required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of pleadings. Please visit the Court's website www.nvd.uscourts.gov to register Attorney(s). Verified Petition due by 6/30/2012.(no image attached) (ASB) (Entered: 05/16/2012)
32 MOTION to Dismiss by Defendant Brian Sandoval. Responses due by 6/3/2012. Certificate of Interested Parties due by 5/27/2012. Discovery Plan/Scheduling Order due by 7/1/2012. (Howle, C.) (Entered: 05/17/2012)
33 MOTION to Dismiss for Lack of Jurisdiction by Defendant Alan Glover. Responses due by 6/4/2012. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012. (Munn, Randal) (Entered: 05/18/2012)
34 ANSWER to 1 Complaint, filed by Diana Alba. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012.(Foley, Michael) (Entered: 05/18/2012)
35 ANSWER to 1 Complaint filed by Amy Harvey. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012.(Kaplan, Herbert) (Entered: 05/18/2012)
36 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Craig G. Taylor and DESIGNATION of Local Counsel D. Chris Albright (Filing fee $ 200 receipt number 0978−2375975) filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 5/18/2012. (Albright, D. Chris) (Entered: 05/18/2012)
37 NON−OPPOSITION to 30 MOTION to Intervene ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 05/29/2012)
38 NOTICE of Nonopposition to 30 Motion to Intervene by Defendant Alan Glover. (Munn, Randal) (Entered: 05/29/2012)
39 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 06/01/2012)
40 RESPONSE to 30 MOTION to Intervene, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 6/11/2012. (Cristol, Melanie) (Entered: 06/01/2012)

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 19 of 25

06/04/2012
06/08/2012 06/08/2012 06/08/2012 06/11/2012 06/11/2012 06/11/2012 06/12/2012
06/14/2012 06/14/2012
06/21/2012 06/21/2012
06/25/2012

41 RESPONSE to 32 MOTION to Dismiss, 33 MOTION to Dismiss for Lack of Jurisdiction, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 6/14/2012. (Attachments: # 1 Exhibit, # 2 Exhibit)(Borelli, Tara) (Entered: 06/04/2012)
42 REPLY to Response to 30 MOTION to Intervene ; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/08/2012)
43 OBJECTION to 39 Proposed Discovery Plan/Scheduling Order, ; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/08/2012)
44 ORDER that Intervenor Defendant shall file its Certificate as to Interested Parties, which fully complies with LR 7.1−1 no later than 4:00 p.m., June 18, 2012. Failure to comply may result in the issuance of an order to show cause why sanctions should not be imposed. Signed by Magistrate Judge Peggy A. Leen on 6/7/12. (Copies have been distributed pursuant to the NEF − ECS) (Entered: 06/08/2012)
45 Supplemental REPLY to Response to 30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/11/2012)
46 REPLY to Response to 33 MOTION to Dismiss for Lack of Jurisdiction ; filed by Defendant Alan Glover. (Munn, Randal) (Entered: 06/11/2012)
47 CERTIFICATE of Interested Parties filed by Coalition for the Protection of Marriage that identifies all parties that have an interest in the outcome of this case. Certificate as to Interested Parties Pursuant to Local Rule 7.1−1. (Albright, D. Chris) (Entered: 06/11/2012)
48 RESPONSE to 43 Objection to 39 Discovery Plan and Scheduling Order filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, and Fletcher Whitwell. (Renn, Peter) Modified docket entry relationships on 6/13/2012. (ASB) (Entered: 06/12/2012)
49 First MOTION to Extend Time to File Reply to 41 Response to 32 MOTION to Dismiss (First Request) filed by Defendant Brian Sandoval. Motion ripe 6/14/2012. (Howle, C.) (Entered: 06/14/2012)
50 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on June 14, 2012, by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that 49 Defendant Governor Brian Sandovals Motion for Extension of Time to File Reply Brief is GRANTED. IT IS SO ORDERED. Signed Chief Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − CL) (Entered: 06/14/2012)
51 REPLY to Response to 32 MOTION to Dismiss ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 06/21/2012)
52 ORDER Granting 36 Verified Petition for Permission to Practice Pro Hac Vice by Craig G. Taylor and approving Designation of Local Counsel D. Chris Albright for Coalition for the Protection of Marriage. Signed by Chief Judge Robert C. Jones on 6/21/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 06/21/2012)
53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, and Fletcher Whitwell. (Attachments: # 1 Exhibit Proposed Surreply, # 2 Exhibit Proposed Order)(Borelli, Tara) Modified docket event type and entry

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 20 of 25

06/26/2012 06/27/2012 06/29/2012 07/02/2012 07/02/2012 07/02/2012 07/03/2012
07/10/2012

relationships on 6/26/2012. (ASB) (Entered: 06/25/2012)
Notice of Docket Correction to 53 Response to Motion. ERROR: Wrong event used by Attorney Tara Borelli; image does not match event selected. CORRECTION: Court modified entry as 53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss. (no image attached)(ASB) (Entered: 06/26/2012)
54 NON−OPPOSITION to 53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss filed by Defendant Alan Glover. (Munn, Randal) (Entered: 06/27/2012)
55 MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene − Epedited Treatment Requested Before July 3, 2012 filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 6/29/2012. (Stewart, Monte) Modified docket entry relationship on 6/29/2012. (ASB) (Entered: 06/29/2012)
56 NON−OPPOSITION to 53 MOTION to File Surreply to 32 and 33 MOTIONS to DismissMOTION to File Surreply to 32 and 33 MOTIONS to DismissMOTION to File Surreply to 32 and 33 MOTIONS to Dismiss ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
57 ERRATA to 56 Non−Opposition, ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
58 NON−OPPOSITION to 55 MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
59 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on July 3, 2012, by Carrie Lipparelli, Judicial Assistant.
IT IS HEREBY ORDERED that 53 Plaintiffs Motion to File Surreply in Further Support of Their Opposition to Defendants Motion to Dismiss is GRANTED.
IT IS FURTHER ORDERED that 55 Motion to Immediately Stay Discovery Pending Ruling on Motion to Intervene is GRANTED.
IT IS FURTHER ORDERED that ORAL ARGUMENT is set as follows:
MONDAY, AUGUST 6, 2012 @ 1:30PM
30 Motion to Intervene; and
[32, 33] Defendant Governor Brian Sandovals Motion to Dismiss;
NOTICE OF HEARING LOCATION: Parties may appear at either location.
VIDEO CONFERENCE LAS VEGAS: Lloyd D. George U.S. Courthouse, United States District Court District of Nevada, 333 Las Vegas Blvd. South, Las Vegas, Nevada 89101, COURTROOM LOCATION TO BE DETERMINED AND NOTICED AT PUBLIC ELEVATORS ON HEARING DATE.
IN PERSON RENO: COURTROOM 6, Bruce R. Thompson Federal building &U.S. Courthouse, United States District Court District of Nevada, 400 South Virginia Street, Reno, Nevada 89501.
IT IS SO ORDERED. Signed Chief Judge Robert C. Jones.
(Copies have been distributed pursuant to the NEF − CL) (Entered: 07/03/2012)
60 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Daniel W. Bower and DESIGNATION of Local Counsel D. Chris Albright (Filing fee $ 200 receipt number 0978−2434865) filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 7/10/2012. (Albright, D. Chris) (Entered: 07/10/2012)

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 21 of 25

07/26/2012

61 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on July 25, 2012, by Carrie Lipparelli, Judicial Assistant.

IT IS HEREBY ORDERED that due to a conflict with the Courts calendar ORAL ARGUMENT currently set for Monday, August 6, 2012 @ 1:30PM is VACATED and RESCHEDULED as follows:

FRIDAY, AUGUST 10, 2012 @ 09:00AM

30 Motion to Intervene;

[32/33] Defendant Governor Brian Sandovals Motion to Dismiss.

NOTICE OF HEARING LOCATION: PARTIES MUST APPEAR IN LAS VEGAS

Lloyd D. George U.S. Courthouse, United States District Court District of Nevada, 333 Las Vegas Blvd. South, Las Vegas, Nevada 89101, COURTROOM LOCATION TO BE DETERMINED AND NOTICED AT PUBLIC ELEVATORS ON HEARING DATE.IT IS SO ORDERED.

Signed Chief Judge Robert C. Jones.

07/26/2012
08/02/2012 08/07/2012 08/09/2012 08/09/2012

(no image attached) (Copies have been distributed pursuant to the NEF − CL) (Entered: 07/26/2012)
62 ORDER Granting 60 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Daniel W Bower and approving Designation of Local Counsel D. Chris Albright for Coalition for the Protection of Marriage. Signed by Chief Judge Robert C. Jones on 7/25/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 07/26/2012)
63 ERRATA to 42 Reply to Response to 30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 08/02/2012)
64 SUPPLEMENT Citation to Additional Authority in Support of: The Coalition's 30 Motion to Intervene; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Albright, D. Chris) Docket entry relationship modified on 8/7/2012 (SRK). (Entered: 08/07/2012)
65 SUPPLEMENT Second Citation to Additional Authority in Support of: The Coalition's 30 Motion to Intervene; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Albright, D. Chris) (Entered: 08/09/2012)
66 ORDER setting Scheduling Conference regarding 39 Proposed Discovery Plan/Scheduling Order and 43 Objection on 8/28/2012 at 10:30 a.m. in LV Courtroom 3B before Magistrate Judge Peggy A. Leen.

The parties may appear telephonically, and they can be connected to the hearing by dialing 702−868−4907 and entering code "123456" when prompted no later than 10:25 a.m. on 8/28/2012. This line can accommodate a maximum of six unique callers. Should counsel require more than six parties to participate, they are directed to contact Courtroom Administrator Jeff Miller to make special arrangements prior to the hearing. The use of a cell phone or speaker phone during the call is prohibited. The call must be made using a land line.

08/10/2012

Signed by Magistrate Judge Peggy A. Leen on 8/9/12. (Copies have been distributed pursuant to the NEF − Jones, Elizabeth) (Entered: 08/09/2012)
67 MINUTES OF PROCEEDINGS − Motion Hearing RE: 30 Motion to Intervene, 32 and 33 Motions to Dismiss held on 8/10/2012 before Chief Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Tara Borelli, Dawn Sestito, Kelly

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 22 of 25

08/23/2012 08/28/2012
08/29/2012 09/05/2012

Douglas; Def Counsel: C. Howle, Randal Munn, Michael Foley, Chris Albright, Herbert Kaplan, Monte Stewart; Court Reporter/FTR #: Margaret Griener; Time of Hearing: 9:03 − 9:37 a.m.; Courtroom: 4B; Mr. Stewart informs the Court that the parties have reached an agreement with respect to 30 Motion to Intervene, then recites the terms of the agreement on the record. Plaintiffs' withdraw their previously filed opposition to the motion to intervene. 30 Motion to Intervene is granted. Court and counsel discuss the status of the case and scheduling. The Court sets the following deadlines and directs the submission of proposed scheduling order in accordance with the Court's ruling. Motions for Summary Judgment shall be due in 30 days; Responses shall be due in 45 days thereafter.
IT IS ORDERED that Oral Argument on Motions for Summary Judgment, and 32 33 Motions to Dismiss are scheduled for 11/26/2012 09:00 AM in Reno Courtroom 6 before Chief Judge Robert C. Jones.
(Copies have been distributed pursuant to the NEF − LE) (Entered: 08/17/2012)
68 SUPPLEMENT to the Coalition's Objection to Stipulated Discovery Plan and Scheduling Order filed by Intervenor Defendant Coalition for the Protection of Marriage. (Attachments: # 1 Exhibit)(Albright, D. Chris) (Entered: 08/23/2012)
70 MINUTES OF PROCEEDINGS − Scheduling Conference held on 8/28/2012 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Peter Renn, Esq., Kelly Dove, Esq., Tara Borelli, Esq., Melanie Cristol, Esq.; Def Counsel: C. Howle, Esq., Herbert Kaplan, Esq., Michael Foley, Esq., Randal Munn, Esq., Chris Albright, Esq., Monte Stewart, Esq.; Court Reporter/FTR #: 10:51:28 − 11:08:58; Time of Hearing: 10:30am; Courtroom: 3B; Counsel appear telephonically for these proceedings. The Court hears representations of Plaintiffs' Counsel as to the status of this case. The Court next hears representations of Counsel for all parties concerning their positions on discovery and their discovery needs. IT IS ORDERED: The Parties shall meet and confer within 14 days after decision on the pending dispositive motions, and file a Proposed Discovery Plan and Scheduling Order which addresses any claims that remain pending after the District Judge's ruling, IT IS ORDERED: Parties shall likewise meet and confer after the 9/10/2012 dispositive motion deadling to determine if they are going to request any discovery, or have any immediate pending discovery disputes, while the dispositive motions are pending. Status Conference set for 9/18/2012 @ 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Joint Status Report due by 9/14/2012, which shall detail any discovery disputes as directed in open court. If there are no disputes or substantive matters to address with the Court, Counsel can request that the hearing be vacated in their Joint Status Report. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) Modified on 9/5/2012 (JAM). (Entered: 09/05/2012)
69 TRANSCRIPT of Proceedings, 67 Order on Motion to Intervene Motion Hearing held on 8/10/2012, before Chief Judge Robert C. Jones. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 9/19/2012. Redacted Transcript Deadline set for 9/29/2012. Release of Transcript Restriction set for 11/27/2012. (MG) (Entered: 08/29/2012)
71 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 9/5/2012. By Deputy Clerk: Jeff Miller. In regards to the Status Conference that has been scheduled for 9/18/2012 @ 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen, IT IS ORDERED: Counsel are permitted to appear telephonically and are directed to call 702−464−5625 on the date and time of the hearing if they wish to participate via phone. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 09/05/2012)

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 23 of 25

09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012
09/10/2012

72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. Responses due by 10/4/2012. (Stewart, Monte) (Entered: 09/10/2012)
73 APPENDIX 1−7 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
74 MOTION for Summary Judgment by Defendant Alan Glover. Responses due by 10/4/2012. (Munn, Randal) (Entered: 09/10/2012)
75 APPENDIX 8−11 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
76 APPENDIX 12−14 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
77 APPENDIX 15−18 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
78 APPENDIX 19−23 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
79 APPENDIX 24−29 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
80 APPENDIX 30−36 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
81 APPENDIX 37−40 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
82 APPENDIX 41−45 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
83 APPENDIX 46−50 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
84 APPENDIX 51−52 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
85 MOTION for Summary Judgment by Defendant Brian Sandoval. Responses due by 10/4/2012. (Attachments: # 1 Exhibit Attachment 1, # 2 Exhibit Attachment 2)(Howle, C.) (Entered: 09/10/2012)
86 MOTION for Summary Judgment by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Responses due by 10/4/2012. (Attachments: # 1 Appendix Volume 1, # 2 Appendix Volume 2, # 3 Appendix Volume 3)(Borelli, Tara) (Entered: 09/10/2012)
87 ADDENDUM to 86 MOTION for Summary Judgment filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 09/10/2012)

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 24 of 25

09/14/2012 09/17/2012 09/17/2012 09/18/2012 09/18/2012 09/18/2012

88 Joint STATUS REPORT by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 09/14/2012)
89 ORDER that the oral argument scheduled for 11/26/12 is VACATED re 32 MOTION to Dismiss filed by Brian Sandoval and 33 MOTION to Dismiss for Lack of Jurisdiction filed by Alan Glover. The Court will issue a written order on the pleadings. Signed by Chief Judge Robert C. Jones on 9/17/2012. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 09/17/2012)
90 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 9/17/2012. By Deputy Clerk: Jeff Miller. The Court has reviewed Counsels' Joint Status Report 88 . Based on Counsels' representations, IT IS ORDERED: The Status Hearing currently scheduled for Tuesday, 9/18/2012 @ 9:00am in Courtroom #3B is hereby VACATED. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 09/17/2012)
91 MOTION for Clarification of 89 Order filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Dove, Kelly) (Entered: 09/18/2012)
NOTICE of Docket Correction to 91 Letter. ERROR: Document requests action from the Judge. CORRECTION: Clerk's Office modified document as 91 MOTION for Clarification of 89 Order. (no image attached)(ASB) (Entered: 09/18/2012)
92 AMENDED 89 MINUTE ORDER: IT IS HEREBY ORDERED that oral argument on (Dockets 32 , 33 , 72 , 74 , 85 , 86 ) set for Monday, November 26, 2012 is VACATED.

IT IS FURTHER ORDERED that any newly filed motions filed with the Court after September 18, 2012 will not be scheduled for oral argument.

IT IS FURTHER ORDERED that oral argument on November 26, 2012 has been vacated in its entirety.

09/27/2012
10/22/2012 10/25/2012 10/25/2012 10/25/2012

The court will issue a written order on the pleadings. Signed by Chief Judge Robert C. Jones on 9/18/12. (Copies have been distributed pursuant to the NEF − BLG) BLG . Modified on 9/18/2012 NEF Regenerated with PDF attached. (BLG). (Entered: 09/18/2012)
93 UNOPPOSED MOTION and Proposed Order Re Page Limits for Plaintiffs' Opposition re 74 MOTION for Summary Judgment, 72 MOTION for Summary Judgment, 85 MOTION for Summary Judgment by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 9/27/2012. (Borelli, Tara) (Entered: 09/27/2012)
94 ORDER Granting 93 Unopposed Motion Regarding Page Limits for Plaintiffs' Combined Opposition Brief to Motions for Summary Judgment. Signed by Chief Judge Robert C. Jones on 10/22/12. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 10/22/2012)
95 RESPONSE to 86 MOTION for Summary Judgment, filed by Intervenor Defendant Coalition for the Protection of Marriage. Replies due by 11/11/2012. (Attachments: # 1 Appendix)(Stewart, Monte) (Entered: 10/25/2012)
96 RESPONSE to 86 MOTION for Summary Judgment, filed by Defendant Brian Sandoval. Replies due by 11/11/2012. (Howle, C.) (Entered: 10/25/2012)
97 RESPONSE to 86 MOTION for Summary Judgment, filed by Defendant Alan Glover. Replies due by 11/11/2012. (Munn, Randal) (Entered: 10/25/2012)

Case: 2:12-cv-578 As of: 11/30/2012 05:56 PM PST 25 of 25

10/25/2012
10/31/2012 11/08/2012
11/09/2012 11/26/2012

98 RESPONSE to 74 MOTION for Summary Judgment, 72 MOTION for Summary Judgment, 85 MOTION for Summary Judgment, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 11/11/2012. (Attachments: # 1 Affidavit of Michael Lamb, Ph.D., # 2 Affidavit of Letitia Anne Peplau, Ph.D.)(Borelli, Tara) (Entered: 10/25/2012)
99 APPENDIX in Support of 95 Response to to 86 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 10/31/2012)
100 MOTION for Leave to File Summary Judgment Reply and Supporting Declarations of Michael Lamb, Ph.D. and Tara Borelli by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 11/8/2012. (Attachments: # 1 Exhibit A − Reply Brief, # 2 Exhibit B − Declaration of Michael Lamb, Ph.D., # 3 Exhibit C − Declaration of Tara Borelli, # 4 Exhibit D − Proposed Order)(Borelli, Tara) (Entered: 11/08/2012)
101 RESPONSE to 100 MOTION for Leave to File Summary Judgment Reply and Supporting Declarations of Michael Lamb, Ph.D. and Tara Borelli, filed by Intervenor Defendant Coalition for the Protection of Marriage. Replies due by 11/19/2012. (Stewart, Monte) (Entered: 11/09/2012)
102 ORDER that the Motions to Dismiss 32 , 33 are GRANTED IN PART and DENIED IN PART. The Complaint is dismissed as precluded by Baker v. Nelson with respect to the traditional equal protection challenge, but the Complaint is not dismissed with respect to the challenge under Romer v. Evans. FURTHER ORDERED that the Motions for Summary Judgment 72 , 74 , 85 are GRANTED. FURTHER ORDERED that the Motion for Summary Judgment 86 is DENIED. FURTHER ORDERED that the Motion for Leave to File Reply 100 is DENIED. No party has been permitted to file a reply. The arguments have been comprehensively presented, and no reply is necessary to preserve the relevant issues on appeal. FURTHER ORDERED that the Clerk shall enter judgment and close the case. Signed by Chief Judge Robert C. Jones on 11/26/12. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 11/29/2012)

 
 Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 1 of 28
United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:12−cv−00578−JCM−PAL

CLOSED

Sevcik et al v. Sandoval et al Assigned to: Judge James C. Mahan Referred to: Magistrate Judge Peggy A. Leen Case in other court: Ninth Circuit, 12−17668 Cause: 42:1983 Civil Rights Act
Plaintiff
Beverly Sevcik

Date Filed: 04/10/2012 Date Terminated: 11/26/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Carla Christofferson O'Melveny &Myers LLP 400 S. Hope Street Los Angeles, CA 90071 213−430−8359 Email: cchristofferson@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito O'Melveny &Myers LLP 400 South Hope Street Los Angeles, CA 90071 213−430−6352 Email: dsestito@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson Lambda Legal Defense and Education Fund, Inc. 4221 Wilshire Boulevard, Suite 280 Los Angeles, CA 90010 213−382−7600 Fax: 213−351−6050 Email: jdavidson@lambdalegal.org ATTORNEY TO BE NOTICED
Marek P. Bute Snell &Wilmer 3883 Howard Hughes Pkwy., Ste. 1000 Las Vegas, NV 89169 (702) 784−5266 Fax: (702) 784−5252 Email: mbute@swlaw.com ATTORNEY TO BE NOTICED
Melanie Cristol O'Melveny &Myers LLP 400 South Hope Street Los Angeles, CA 90503 213−430−8180 Email: mcristol@omm.com TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn Lambda Legal Defense &Education Fund, Inc. 4221 Wilshire Boulevard, Suite 280

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 2 of 28

Los Angeles, CA 90010 213−382−7600 Fax: 213−351−6050 Email: prenn@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi O'Melveny &Myers LLP 400 South Hope St. Los Angeles, CA 90071 213−430−8381 Email: razizi@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Boulevard Los Angeles, CA 90010 213−382−7600 Email: sday@lambdalegal.org TERMINATED: 11/21/2014

Tara Borelli Lambda Legal Defense and Education Fund, Inc. 730 Peachtree Street, NE, Suite 1070 Atlanta, GA 30308−1210 404−897−1880 Fax: 404−897−1884 Email: tborelli@lambdalegal.org ATTORNEY TO BE NOTICED

Kelly H Dove Snell &Wilmer L.L.P. 3883 Howard Hughes Parkway Las Vegas, NV 89169 (702) 784−5200 Fax: (702) 784−5252 Email: kdove@swlaw.com ATTORNEY TO BE NOTICED

Plaintiff Mary Baranovich

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 3 of 28

(See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Antioco Carrillo

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address)

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 4 of 28

TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Theodore Small

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Karen Goody

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 5 of 28

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Karen Vibe

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 6 of 28

Plaintiff Fletcher Whitwell

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) TERMINATED: 11/21/2014
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED
represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) TERMINATED: 11/21/2014
Tara Borelli (See above for address)

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 7 of 28

ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Greg Flamer

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mikyla Miller

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 8 of 28

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Katrina Miller

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 9 of 28

ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Adele Terranova

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address)

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 10 of 28

ATTORNEY TO BE NOTICED

Plaintiff Tara Newberry

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Caren Cafferata−Jenkins

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 11 of 28

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Farrell Cafferata−Jenkins

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address)

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 12 of 28

PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Megan Lanz

represented by Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED

Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED

Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shelbi Day (See above for address) TERMINATED: 11/21/2014

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sara Geiger

represented by

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 13 of 28
Carla Christofferson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dawn Sestito (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon W. Davidson (See above for address) ATTORNEY TO BE NOTICED
Marek P. Bute (See above for address) ATTORNEY TO BE NOTICED
Melanie Cristol (See above for address) TERMINATED: 11/21/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rahi Azizi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shelbi Day (See above for address) TERMINATED: 11/21/2014
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Kelly H Dove (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Brian Sandoval in his official capacity as Governor of the State of Nevada
Defendant Diana Alba in her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County, Nevada

represented by C. Wayne Howle Nevada Attorney General's Office 100 N Carson St Carson City, NV 89701−4717 (775) 684−1227 Fax: (775) 684−1108 Email: whowle@ag.nv.gov ATTORNEY TO BE NOTICED
represented by Matthew J. Christian Clark County District Attorney Civil 500 South Grand Central Parkway

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 14 of 28

Box 552215 Las Vegas, NV 89155−2215 702−4554761 Fax: 702−382−5178 Email: matthew.christian@clarkcountyda.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael L Foley Clark County District Attorney's Office Civil Division 500 S. Grand Central Pkwy 5th Flr P.O.Box 552215 Las Vegas, NV 89155−2215 702−455−4761 Fax: 702−382−5178 Email: MICHAEL.FOLEY@ccdanv.com TERMINATED: 11/21/2014

Defendant
Amy Harvey in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada

represented by Herbert B. Kaplan . P.O. Box 30083 Reno, NV 89520 775−337−5700 Fax: 775−337−5732 Email: hkaplan@da.washoecounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Alan Glover in his official capacity as the Clerk−Recorder for Carson City, Nevada

represented by Joseph L Ward , Jr. Carson City District Attorney's Office Civil Division 885 East Musser Street, Suite 2030 Carson City, NV 89701 775−887−2070 Fax: 775−887−2129 Email: jward@carson.org ATTORNEY TO BE NOTICED

Randal R. Munn . 885 East Musser Street, #2030 Carson City, NV 89701 775−887−2070 Fax: 775−887−2129 Email: RMunn@carson.org ATTORNEY TO BE NOTICED

Intervenor Defendant
Coalition for the Protection of Marriage

represented by Craig G. Taylor Stewart Taylor &Morris PLLC 12550 W. Explorer Drive Boise, ID 83713 208−345−3333 Fax: 208−345−4461 Email: cgtaylor@stm−law.com ATTORNEY TO BE NOTICED

D. Chris Albright Albright Stoddard Warnick &Albright 801 S. Rancho Drive

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 15 of 28
Suite D−4 Las Vegas, NV 89106 702−384−7111 Fax: 702−384−0605 Email: dca@albrightstoddard.com ATTORNEY TO BE NOTICED
Daniel W. Bower Belnap Stewart Taylor &Morris PLLC 12550 W. Explorer Drive Boise, ID 83713 208−345−3333 Fax: 208−345−4461 Email: dbower@belnaplaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Monte N Stewart Belnap Stewart Taylor &Morris PLLC 12550 W. Explorer Drive Suite 100 Boise, ID 83713 208−345−3333 Fax: 208−345−4461 Email: stewart@belnaplaw.com ATTORNEY TO BE NOTICED

Date Filed 04/10/2012
04/10/2012 04/10/2012
04/10/2012
04/10/2012

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 350 receipt number 0978−2331341), filed by Adele Terranova, Fletcher Whitwell, Mary Baranovich, Beverly Sevcik, Caren Cafferata−Jenkins, Sara Geiger, Karen Vibe, Antioco Carrillo, Mikyla Miller, Tara Newberry, Farrell Cafferata−Jenkins, Megan Lanz, Greg Flamer, Theodore Small, Katrina Miller, Karen Goody. Certificate of Interested Parties due by 4/20/2012. Proof of service due by 8/8/2012. (Attachments: # 1 Civil Cover Sheet) (Dove, Kelly) (Entered: 04/10/2012)
Case assigned to Judge Roger L. Hunt and Magistrate Judge Peggy A. Leen. (MMM) (Entered: 04/10/2012)
2 NOTICE PURSUANT TO LOCAL RULE IB 2−2: In accordance with 28 USC § 636(c) and FRCP 73, the parties in this action are provided with a link to the "AO 85 Notice of Availability, Consent, and Order of Reference − Exercise of Jurisdiction by a U.S. Magistrate Judge" form on the Court's website − www.nvd.uscourts.gov. Consent forms should NOT be electronically filed. Upon consent of all parties, counsel are advised to manually file the form with the Clerk's Office. (no image attached) (MMM) (Entered: 04/10/2012)
3 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 10−2. Counsel Jon W. Davidson, Tara L. Borelli, Peter C. Renn, Shelbi Day, Carla Christofferson, Dawn Sestito, Melanie Cristol, Rahi Azizi to comply with completion and electronic filing of the Designation of Local Counsel and Verified Petition. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov/Forms.aspx. Counsel is also required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of pleadings. Please visit the Court's website www.nvd.uscourts.gov to register Attorney(s). Verified Petition due by 5/25/2012.(no image attached) (MMM) (Entered: 04/10/2012)
4 CERTIFICATE of Interested Parties filed by Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. There are no known interested parties other than those participating in the case. (Dove, Kelly) (Entered: 04/10/2012)

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 16 of 28

04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/12/2012

5 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Jon W. Davidson and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332407) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
6 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Tara L. Borelli and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332426) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
7 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Peter C. Renn and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332448) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
8 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Shelbi D. Day and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332457) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
9 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Carla Christofferson and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332480) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
10 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Dawn Sestito and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332504) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
11 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Melanie Cristol and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332521) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
12 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Rahi Azizi and DESIGNATION of Local Counsel Kelly H. Dove (Filing fee $ 200 receipt number 0978−2332544) by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 4/10/2012. (Dove, Kelly) (Entered: 04/10/2012)
13 ORDER Granting 5 Verified Petition for Permission to Practice Pro Hac Vice by Jon Davidson and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12.

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 17 of 28

04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012 04/12/2012

Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
14 ORDER Granting 6 Verified Petition for Permission to Practice Pro Hac Vice by Tara L. Borelli and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
15 ORDER Granting 7 Verified Petition for Permission to Practice Pro Hac Vice by Peter C. Renn and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
16 ORDER Granting 8 Verified Petition for Permission to Practice Pro Hac Vice by Shelbi D. Day and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
17 ORDER Granting 9 Verified Petition for Permission to Practice Pro Hac Vice by Carla J. Christofferson and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
18 ORDER Granting 10 Verified Petition for Permission to Practice Pro Hac Vice by Dawn Sestito and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
19 ORDER Granting 11 Verified Petition for Permission to Practice Pro Hac Vice by Melanie Cristol and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
20 ORDER Granting 12 Verified Petition for Permission to Practice Pro Hac Vice by Rahi Azizi and approving Designation of Local Counsel Kelly H. Dove for Plaintiffs. Signed by Chief Judge Robert C. Jones on 4/12/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 04/12/2012)
21 PROPOSED SUMMONS to be issued for Defendant Sandoval, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
22 PROPOSED SUMMONS to be issued for Defendant Alba, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
23 PROPOSED SUMMONS to be issued for Defendant Harvey, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 18 of 28

04/12/2012 04/13/2012 04/17/2012
04/19/2012
04/20/2012 05/03/2012 05/15/2012 05/16/2012
05/17/2012 05/18/2012 05/18/2012 05/18/2012

Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
24 PROPOSED SUMMONS to be issued for Defendant Glover, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 04/12/2012)
25 Summons Issued as to Diana Alba, Alan Glover, Amy Harvey, Brian Sandoval. (Attachments: # 1 summons issued as to Diana Alba, # 2 summons issued as to Amy Harvey, # 3 summons issued as to Alan Glover)(MMM) (Entered: 04/13/2012)
26 SUMMONS Returned Executed by Adele Terranova, Fletcher Whitwell, Mary Baranovich, Beverly Sevcik, Caren Cafferata−Jenkins, Sara Geiger, Karen Vibe, Antioco Carrillo, Mikyla Miller, Tara Newberry, Farrell Cafferata−Jenkins, Megan Lanz, Greg Flamer, Theodore Small, Katrina Miller, Karen Goody re 25 Summons Issued. Diana Alba served on 4/13/2012, answer due 5/4/2012; Alan Glover served on 4/13/2012, answer due 5/4/2012; Amy Harvey served on 4/13/2012, answer due 5/4/2012; Brian Sandoval served on 4/13/2012, answer due 5/4/2012. (Renn, Peter) (Entered: 04/17/2012)
27 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on 4/19/2012. IT IS ORDERED that this case is reassigned to Chief Judge Robert C. Jones for all further proceedings. Judge Roger L. Hunt no longer assigned to case. All further documents must bear the correct case number 2:12−cv−00578−RCJ−PAL. (no image attached) (Copies have been distributed pursuant to the NEF − BLG) (Entered: 04/19/2012)
28 Mail Returned as Undeliverable re 16 Order on Verified Petition for Permission to Practice Pro Hac Vice, addressed to Shelbi D. Day. Remailed to 3325 Wilshire Blvd Ste 1300, LA, CA 90010. (MMM) (Entered: 04/20/2012)
29 STIPULATION FOR EXTENSION OF TIME to File Answer to 1 Complaint filed by Defendant Amy Harvey. (First Request) (Kaplan, Herbert) Added docket entry relationship on 5/10/12. (ASB) (Entered: 05/03/2012)
30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. Responses due by 6/1/2012. (Attachments: # 1 Appendix, # 2 Certificate of Service)(Albright, D. Chris) (Entered: 05/15/2012)
31 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 10−2. Counsel Craig G. Taylor to comply with completion and electronic filing of the Designation of Local Counsel and Verified Petition. For your convenience, click on the following link to obtain the form from the Court's website − www.nvd.uscourts.gov/Forms.aspx. Counsel is also required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of pleadings. Please visit the Court's website www.nvd.uscourts.gov to register Attorney(s). Verified Petition due by 6/30/2012.(no image attached) (ASB) (Entered: 05/16/2012)
32 MOTION to Dismiss by Defendant Brian Sandoval. Responses due by 6/3/2012. Certificate of Interested Parties due by 5/27/2012. Discovery Plan/Scheduling Order due by 7/1/2012. (Howle, C.) (Entered: 05/17/2012)
33 MOTION to Dismiss for Lack of Jurisdiction by Defendant Alan Glover. Responses due by 6/4/2012. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012. (Munn, Randal) (Entered: 05/18/2012)
34 ANSWER to 1 Complaint, filed by Diana Alba. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012.(Foley, Michael) (Entered: 05/18/2012)
35 ANSWER to 1 Complaint filed by Amy Harvey. Certificate of Interested Parties due by 5/28/2012. Discovery Plan/Scheduling Order due by 7/2/2012.(Kaplan,

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 19 of 28

05/18/2012 05/29/2012 05/29/2012 06/01/2012
06/01/2012
06/04/2012
06/08/2012 06/08/2012 06/08/2012
06/11/2012 06/11/2012 06/11/2012 06/12/2012
06/14/2012

Herbert) (Entered: 05/18/2012)
36 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Craig G. Taylor and DESIGNATION of Local Counsel D. Chris Albright (Filing fee $ 200 receipt number 0978−2375975) filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 5/18/2012. (Albright, D. Chris) (Entered: 05/18/2012)
37 NON−OPPOSITION to 30 MOTION to Intervene ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 05/29/2012)
38 NOTICE of Nonopposition to 30 Motion to Intervene by Defendant Alan Glover. (Munn, Randal) (Entered: 05/29/2012)
39 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 06/01/2012)
40 RESPONSE to 30 MOTION to Intervene, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 6/11/2012. (Cristol, Melanie) (Entered: 06/01/2012)
41 RESPONSE to 32 MOTION to Dismiss, 33 MOTION to Dismiss for Lack of Jurisdiction, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 6/14/2012. (Attachments: # 1 Exhibit, # 2 Exhibit)(Borelli, Tara) (Entered: 06/04/2012)
42 REPLY to Response to 30 MOTION to Intervene ; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/08/2012)
43 OBJECTION to 39 Proposed Discovery Plan/Scheduling Order, ; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/08/2012)
44 ORDER that Intervenor Defendant shall file its Certificate as to Interested Parties, which fully complies with LR 7.1−1 no later than 4:00 p.m., June 18, 2012. Failure to comply may result in the issuance of an order to show cause why sanctions should not be imposed. Signed by Magistrate Judge Peggy A. Leen on 6/7/12. (Copies have been distributed pursuant to the NEF − ECS) (Entered: 06/08/2012)
45 Supplemental REPLY to Response to 30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 06/11/2012)
46 REPLY to Response to 33 MOTION to Dismiss for Lack of Jurisdiction ; filed by Defendant Alan Glover. (Munn, Randal) (Entered: 06/11/2012)
47 CERTIFICATE of Interested Parties filed by Coalition for the Protection of Marriage that identifies all parties that have an interest in the outcome of this case. Certificate as to Interested Parties Pursuant to Local Rule 7.1−1. (Albright, D. Chris) (Entered: 06/11/2012)
48 RESPONSE to 43 Objection to 39 Discovery Plan and Scheduling Order filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, and Fletcher Whitwell. (Renn, Peter) Modified docket entry relationships on 6/13/2012. (ASB) (Entered: 06/12/2012)
49 First MOTION to Extend Time to File Reply to 41 Response to 32 MOTION to Dismiss (First Request) filed by Defendant Brian Sandoval. Motion ripe 6/14/2012.

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 20 of 28

06/14/2012
06/21/2012 06/21/2012
06/25/2012
06/26/2012 06/27/2012 06/29/2012 07/02/2012 07/02/2012 07/02/2012 07/03/2012

(Howle, C.) (Entered: 06/14/2012)
50 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on June 14, 2012, by Carrie Lipparelli, Judicial Assistant. IT IS HEREBY ORDERED that 49 Defendant Governor Brian Sandovals Motion for Extension of Time to File Reply Brief is GRANTED. IT IS SO ORDERED. Signed Chief Judge Robert C. Jones. (Copies have been distributed pursuant to the NEF − CL) (Entered: 06/14/2012)
51 REPLY to Response to 32 MOTION to Dismiss ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 06/21/2012)
52 ORDER Granting 36 Verified Petition for Permission to Practice Pro Hac Vice by Craig G. Taylor and approving Designation of Local Counsel D. Chris Albright for Coalition for the Protection of Marriage. Signed by Chief Judge Robert C. Jones on 6/21/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 06/21/2012)
53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, and Fletcher Whitwell. (Attachments: # 1 Exhibit Proposed Surreply, # 2 Exhibit Proposed Order)(Borelli, Tara) Modified docket event type and entry relationships on 6/26/2012. (ASB) (Entered: 06/25/2012)
Notice of Docket Correction to 53 Response to Motion. ERROR: Wrong event used by Attorney Tara Borelli; image does not match event selected. CORRECTION: Court modified entry as 53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss. (no image attached)(ASB) (Entered: 06/26/2012)
54 NON−OPPOSITION to 53 MOTION to File Surreply to 32 and 33 MOTIONS to Dismiss filed by Defendant Alan Glover. (Munn, Randal) (Entered: 06/27/2012)
55 MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene − Epedited Treatment Requested Before July 3, 2012 filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 6/29/2012. (Stewart, Monte) Modified docket entry relationship on 6/29/2012. (ASB) (Entered: 06/29/2012)
56 NON−OPPOSITION to 53 MOTION to File Surreply to 32 and 33 MOTIONS to DismissMOTION to File Surreply to 32 and 33 MOTIONS to DismissMOTION to File Surreply to 32 and 33 MOTIONS to Dismiss ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
57 ERRATA to 56 Non−Opposition, ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
58 NON−OPPOSITION to 55 MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene MOTION to Immediately Stay Discovery Pending Ruling on 30 Motion to Intervene ; filed by Defendant Brian Sandoval. (Howle, C.) (Entered: 07/02/2012)
59 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on July 3, 2012, by Carrie Lipparelli, Judicial Assistant.
IT IS HEREBY ORDERED that 53 Plaintiffs Motion to File Surreply in Further Support of Their Opposition to Defendants Motion to Dismiss is GRANTED.
IT IS FURTHER ORDERED that 55 Motion to Immediately Stay Discovery Pending Ruling on Motion to Intervene is GRANTED.
IT IS FURTHER ORDERED that ORAL ARGUMENT is set as follows:
MONDAY, AUGUST 6, 2012 @ 1:30PM

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 21 of 28

07/10/2012 07/26/2012
07/26/2012 08/02/2012 08/07/2012

30 Motion to Intervene; and
[32, 33] Defendant Governor Brian Sandovals Motion to Dismiss;
NOTICE OF HEARING LOCATION: Parties may appear at either location.
VIDEO CONFERENCE LAS VEGAS: Lloyd D. George U.S. Courthouse, United States District Court District of Nevada, 333 Las Vegas Blvd. South, Las Vegas, Nevada 89101, COURTROOM LOCATION TO BE DETERMINED AND NOTICED AT PUBLIC ELEVATORS ON HEARING DATE.
IN PERSON RENO: COURTROOM 6, Bruce R. Thompson Federal building &U.S. Courthouse, United States District Court District of Nevada, 400 South Virginia Street, Reno, Nevada 89501.
IT IS SO ORDERED. Signed Chief Judge Robert C. Jones.
(Copies have been distributed pursuant to the NEF − CL) (Entered: 07/03/2012)
60 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Daniel W. Bower and DESIGNATION of Local Counsel D. Chris Albright (Filing fee $ 200 receipt number 0978−2434865) filed by Intervenor Defendant Coalition for the Protection of Marriage. Motion ripe 7/10/2012. (Albright, D. Chris) (Entered: 07/10/2012)
61 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Robert C. Jones, on July 25, 2012, by Carrie Lipparelli, Judicial Assistant.
IT IS HEREBY ORDERED that due to a conflict with the Courts calendar ORAL ARGUMENT currently set for Monday, August 6, 2012 @ 1:30PM is VACATED and RESCHEDULED as follows:
FRIDAY, AUGUST 10, 2012 @ 09:00AM
30 Motion to Intervene;
[32/33] Defendant Governor Brian Sandovals Motion to Dismiss.
NOTICE OF HEARING LOCATION: PARTIES MUST APPEAR IN LAS VEGAS
Lloyd D. George U.S. Courthouse, United States District Court District of Nevada, 333 Las Vegas Blvd. South, Las Vegas, Nevada 89101, COURTROOM LOCATION TO BE DETERMINED AND NOTICED AT PUBLIC ELEVATORS ON HEARING DATE.IT IS SO ORDERED.
Signed Chief Judge Robert C. Jones.
(no image attached) (Copies have been distributed pursuant to the NEF − CL) (Entered: 07/26/2012)
62 ORDER Granting 60 Verified Petition for Permission to Practice Pro Hac Vice for Attorney Daniel W Bower and approving Designation of Local Counsel D. Chris Albright for Coalition for the Protection of Marriage. Signed by Chief Judge Robert C. Jones on 7/25/12. Any Attorney not yet registered with the Court's CM/ECF System shall submit a Registration Form on the Court's website www.nvd.uscourts.gov (Copies have been distributed pursuant to the NEF − MMM) (Entered: 07/26/2012)
63 ERRATA to 42 Reply to Response to 30 MOTION to Intervene filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 08/02/2012)
64 SUPPLEMENT Citation to Additional Authority in Support of: The Coalition's 30 Motion to Intervene; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Albright, D. Chris) Docket entry relationship modified on 8/7/2012

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 22 of 28

08/09/2012 08/09/2012
08/10/2012
08/23/2012 08/28/2012

(SRK). (Entered: 08/07/2012)
65 SUPPLEMENT Second Citation to Additional Authority in Support of: The Coalition's 30 Motion to Intervene; filed by Intervenor Defendant Coalition for the Protection of Marriage. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Albright, D. Chris) (Entered: 08/09/2012)
66 ORDER setting Scheduling Conference regarding 39 Proposed Discovery Plan/Scheduling Order and 43 Objection on 8/28/2012 at 10:30 a.m. in LV Courtroom 3B before Magistrate Judge Peggy A. Leen.
The parties may appear telephonically, and they can be connected to the hearing by dialing 702−868−4907 and entering code "123456" when prompted no later than 10:25 a.m. on 8/28/2012. This line can accommodate a maximum of six unique callers. Should counsel require more than six parties to participate, they are directed to contact Courtroom Administrator Jeff Miller to make special arrangements prior to the hearing. The use of a cell phone or speaker phone during the call is prohibited. The call must be made using a land line.
Signed by Magistrate Judge Peggy A. Leen on 8/9/12. (Copies have been distributed pursuant to the NEF − Jones, Elizabeth) (Entered: 08/09/2012)
67 MINUTES OF PROCEEDINGS − Motion Hearing RE: 30 Motion to Intervene, 32 and 33 Motions to Dismiss held on 8/10/2012 before Chief Judge Robert C. Jones. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Tara Borelli, Dawn Sestito, Kelly Douglas; Def Counsel: C. Howle, Randal Munn, Michael Foley, Chris Albright, Herbert Kaplan, Monte Stewart; Court Reporter/FTR #: Margaret Griener; Time of Hearing: 9:03 − 9:37 a.m.; Courtroom: 4B; Mr. Stewart informs the Court that the parties have reached an agreement with respect to 30 Motion to Intervene, then recites the terms of the agreement on the record. Plaintiffs' withdraw their previously filed opposition to the motion to intervene. 30 Motion to Intervene is granted. Court and counsel discuss the status of the case and scheduling. The Court sets the following deadlines and directs the submission of proposed scheduling order in accordance with the Court's ruling. Motions for Summary Judgment shall be due in 30 days; Responses shall be due in 45 days thereafter.
IT IS ORDERED that Oral Argument on Motions for Summary Judgment, and 32 33 Motions to Dismiss are scheduled for 11/26/2012 09:00 AM in Reno Courtroom 6 before Chief Judge Robert C. Jones.
(Copies have been distributed pursuant to the NEF − LE) (Entered: 08/17/2012)
68 SUPPLEMENT to the Coalition's Objection to Stipulated Discovery Plan and Scheduling Order filed by Intervenor Defendant Coalition for the Protection of Marriage. (Attachments: # 1 Exhibit)(Albright, D. Chris) (Entered: 08/23/2012)
70 MINUTES OF PROCEEDINGS − Scheduling Conference held on 8/28/2012 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Peter Renn, Esq., Kelly Dove, Esq., Tara Borelli, Esq., Melanie Cristol, Esq.; Def Counsel: C. Howle, Esq., Herbert Kaplan, Esq., Michael Foley, Esq., Randal Munn, Esq., Chris Albright, Esq., Monte Stewart, Esq.; Court Reporter/FTR #: 10:51:28 − 11:08:58; Time of Hearing: 10:30am; Courtroom: 3B; Counsel appear telephonically for these proceedings. The Court hears representations of Plaintiffs' Counsel as to the status of this case. The Court next hears representations of Counsel for all parties concerning their positions on discovery and their discovery needs. IT IS ORDERED: The Parties shall meet and confer within 14 days after decision on the pending dispositive motions, and file a Proposed Discovery Plan and Scheduling Order which addresses any claims that remain pending after the District Judge's ruling, IT IS ORDERED: Parties shall likewise meet and confer after the 9/10/2012 dispositive motion deadling to determine if they are going to request any discovery, or have any immediate pending discovery disputes, while the dispositive motions are pending. Status Conference set for 9/18/2012 @ 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Joint Status Report due by 9/14/2012, which shall detail any discovery disputes as directed in open court. If there are no disputes or substantive

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 23 of 28

08/29/2012
09/05/2012
09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012

matters to address with the Court, Counsel can request that the hearing be vacated in their Joint Status Report. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) Modified on 9/5/2012 (JAM). (Entered: 09/05/2012)
69 TRANSCRIPT of Proceedings, 67 Order on Motion to Intervene Motion Hearing held on 8/10/2012, before Chief Judge Robert C. Jones. Court Reporter/Transcriber: Margaret Griener, 775−329−9980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website <a href=http://www.nvd.uscourts.gov target=_blank>www.nvd.uscourts.gov</a> before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 9/19/2012. Redacted Transcript Deadline set for 9/29/2012. Release of Transcript Restriction set for 11/27/2012. (MG) (Entered: 08/29/2012)
71 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 9/5/2012. By Deputy Clerk: Jeff Miller. In regards to the Status Conference that has been scheduled for 9/18/2012 @ 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen, IT IS ORDERED: Counsel are permitted to appear telephonically and are directed to call 702−464−5625 on the date and time of the hearing if they wish to participate via phone. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 09/05/2012)
72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. Responses due by 10/4/2012. (Stewart, Monte) (Entered: 09/10/2012)
73 APPENDIX 1−7 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
74 MOTION for Summary Judgment by Defendant Alan Glover. Responses due by 10/4/2012. (Munn, Randal) (Entered: 09/10/2012)
75 APPENDIX 8−11 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
76 APPENDIX 12−14 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
77 APPENDIX 15−18 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
78 APPENDIX 19−23 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
79 APPENDIX 24−29 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
80 APPENDIX 30−36 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
81 APPENDIX 37−40 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
82 APPENDIX 41−45 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 24 of 28

09/10/2012 09/10/2012 09/10/2012 09/10/2012
09/10/2012 09/14/2012 09/17/2012 09/17/2012
09/18/2012 09/18/2012 09/18/2012

83 APPENDIX 46−50 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
84 APPENDIX 51−52 to 72 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 09/10/2012)
85 MOTION for Summary Judgment by Defendant Brian Sandoval. Responses due by 10/4/2012. (Attachments: # 1 Exhibit Attachment 1, # 2 Exhibit Attachment 2)(Howle, C.) (Entered: 09/10/2012)
86 MOTION for Summary Judgment by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Responses due by 10/4/2012. (Attachments: # 1 Appendix Volume 1, # 2 Appendix Volume 2, # 3 Appendix Volume 3)(Borelli, Tara) (Entered: 09/10/2012)
87 ADDENDUM to 86 MOTION for Summary Judgment filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 09/10/2012)
88 Joint STATUS REPORT by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 09/14/2012)
89 ORDER that the oral argument scheduled for 11/26/12 is VACATED re 32 MOTION to Dismiss filed by Brian Sandoval and 33 MOTION to Dismiss for Lack of Jurisdiction filed by Alan Glover. The Court will issue a written order on the pleadings. Signed by Chief Judge Robert C. Jones on 9/17/2012. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 09/17/2012)
90 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 9/17/2012. By Deputy Clerk: Jeff Miller. The Court has reviewed Counsels' Joint Status Report 88 . Based on Counsels' representations, IT IS ORDERED: The Status Hearing currently scheduled for Tuesday, 9/18/2012 @ 9:00am in Courtroom #3B is hereby VACATED. (no image attached) (Copies have been distributed pursuant to the NEF − JAM) (Entered: 09/17/2012)
91 MOTION for Clarification of 89 Order filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Dove, Kelly) (Entered: 09/18/2012)
NOTICE of Docket Correction to 91 Letter. ERROR: Document requests action from the Judge. CORRECTION: Clerk's Office modified document as 91 MOTION for Clarification of 89 Order. (no image attached)(ASB) (Entered: 09/18/2012)
92 AMENDED 89 MINUTE ORDER: IT IS HEREBY ORDERED that oral argument on (Dockets 32 , 33 , 72 , 74 , 85 , 86 ) set for Monday, November 26, 2012 is VACATED.

IT IS FURTHER ORDERED that any newly filed motions filed with the Court after September 18, 2012 will not be scheduled for oral argument.

IT IS FURTHER ORDERED that oral argument on November 26, 2012 has been vacated in its entirety.

The court will issue a written order on the pleadings. Signed by Chief Judge Robert C. Jones on 9/18/12. (Copies have been distributed pursuant to the NEF − BLG) BLG . Modified on 9/18/2012 NEF Regenerated with PDF attached. (BLG).

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 25 of 28

09/27/2012
10/22/2012 10/25/2012 10/25/2012 10/25/2012 10/25/2012
10/31/2012 11/08/2012
11/09/2012 11/26/2012

(Entered: 09/18/2012)
93 UNOPPOSED MOTION and Proposed Order Re Page Limits for Plaintiffs' Opposition re 74 MOTION for Summary Judgment, 72 MOTION for Summary Judgment, 85 MOTION for Summary Judgment by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 9/27/2012. (Borelli, Tara) (Entered: 09/27/2012)
94 ORDER Granting 93 Unopposed Motion Regarding Page Limits for Plaintiffs' Combined Opposition Brief to Motions for Summary Judgment. Signed by Chief Judge Robert C. Jones on 10/22/12. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 10/22/2012)
95 RESPONSE to 86 MOTION for Summary Judgment, filed by Intervenor Defendant Coalition for the Protection of Marriage. Replies due by 11/11/2012. (Attachments: # 1 Appendix)(Stewart, Monte) (Entered: 10/25/2012)
96 RESPONSE to 86 MOTION for Summary Judgment, filed by Defendant Brian Sandoval. Replies due by 11/11/2012. (Howle, C.) (Entered: 10/25/2012)
97 RESPONSE to 86 MOTION for Summary Judgment, filed by Defendant Alan Glover. Replies due by 11/11/2012. (Munn, Randal) (Entered: 10/25/2012)
98 RESPONSE to 74 MOTION for Summary Judgment, 72 MOTION for Summary Judgment, 85 MOTION for Summary Judgment, filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Replies due by 11/11/2012. (Attachments: # 1 Affidavit of Michael Lamb, Ph.D., # 2 Affidavit of Letitia Anne Peplau, Ph.D.)(Borelli, Tara) (Entered: 10/25/2012)
99 APPENDIX in Support of 95 Response to to 86 MOTION for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage. (Stewart, Monte) (Entered: 10/31/2012)
100 MOTION for Leave to File Summary Judgment Reply and Supporting Declarations of Michael Lamb, Ph.D. and Tara Borelli by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 11/8/2012. (Attachments: # 1 Exhibit A − Reply Brief, # 2 Exhibit B − Declaration of Michael Lamb, Ph.D., # 3 Exhibit C − Declaration of Tara Borelli, # 4 Exhibit D − Proposed Order)(Borelli, Tara) (Entered: 11/08/2012)
101 RESPONSE to 100 MOTION for Leave to File Summary Judgment Reply and Supporting Declarations of Michael Lamb, Ph.D. and Tara Borelli, filed by Intervenor Defendant Coalition for the Protection of Marriage. Replies due by 11/19/2012. (Stewart, Monte) (Entered: 11/09/2012)
102 ORDER that the Motions to Dismiss 32 , 33 are GRANTED IN PART and DENIED IN PART. The Complaint is dismissed as precluded by Baker v. Nelson with respect to the traditional equal protection challenge, but the Complaint is not dismissed with respect to the challenge under Romer v. Evans. FURTHER ORDERED that the Motions for Summary Judgment 72 , 74 , 85 are GRANTED. FURTHER ORDERED that the Motion for Summary Judgment 86 is DENIED. FURTHER ORDERED that the Motion for Leave to File Reply 100 is DENIED. No party has been permitted to file a reply. The arguments have been comprehensively presented, and no reply is necessary to preserve the relevant issues on appeal. FURTHER ORDERED that the Clerk shall enter judgment and close the case. Signed by Chief Judge Robert C. Jones on 11/26/12. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 11/29/2012)

Case: 2:12-cv-00578-JCM-PAL As of: 12/09/2014 05:38 PM PST 26 of 28

12/03/2012 12/03/2012
12/03/2012 12/03/2012 12/04/2012
12/04/2012 12/07/2012 07/10/2013 12/20/2013 01/27/2014
02/27/2014 10/07/2014

103 CLERK'S JUDGMENT is hereby entered per Order 102 filed November 26, 2012. Signed by Clerk of Court, Lance S. Wilson on 12/3/12. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 12/03/2012)
104 NOTICE OF APPEAL by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Filing fee $ 455, receipt number 0978−2621463. E−mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. (Attachments: # 1 Exhibit A − Order, # 2 Exhibit B − Judgment)(Borelli, Tara) (Entered: 12/03/2012)
105 Designation of Transcripts and Transcript Order forms and instructions for 104 Notice of Appeal,. The forms may also be obtained on the Court's website at www.nvd.uscourts.gov/Forms.aspx. (ASB) (Entered: 12/03/2012)
106 Civil Appeals Docketing Statement to 104 Notice of Appeal by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. (Borelli, Tara) (Entered: 12/03/2012)
107 TRANSCRIPT DESIGNATION by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell re 104 Notice of Appeal, 67 Order on Motion to Intervene,,,,,, Motion Hearing,,,,, 70 Scheduling Conference,,,,,,, 69 Transcript,,. (Borelli, Tara) (Entered: 12/04/2012)
108 ORDER for Time Schedule as to 104 Notice of Appeal, filed by Tara Newberry, Caren Cafferata−Jenkins, Katrina Miller, Antioco Carrillo, Sara Geiger, Adele Terranova, Karen Vibe, Beverly Sevcik, Mikyla Miller, Karen Goody, Greg Flamer, Theodore Small, Megan Lanz, Farrell Cafferata−Jenkins, Mary Baranovich, Fletcher Whitwell. USCA Case Number 12−17668. (MMM) (Entered: 12/04/2012)
109 Copy of Letter from Supreme Court of the United States re 104 Notice of Appeal: The petition for a writ of certiorari in the above entitled case was filed on December 5, 2012 and placed on the docket December 6, 2012 as No. 12−689. (MMM) (Entered: 12/07/2012)
110 Copy of Letter dated 6/27/13 from the Supreme Court of the United States re 104 Notice of Appeal. The petition for a writ of certiorari before judgment is denied. (MMM) (Entered: 07/12/2013)
111 ORDER of USCA, Ninth Circuit, as to 104 Notice of Appeal. The appellants' unopposed motion for leave to file an oversize opening brief is granted. (MMM) (Entered: 12/27/2013)
112 ORDER of USCA, Ninth Circuit, as to 104 Notice of Appeal, filed by Tara Newberry, Caren Cafferata−Jenkins, Katrina Miller, Antioco Carrillo, Sara Geiger, Adele Terranova, Karen Vibe, Beverly Sevcik, Mikyla Miller, Karen Goody, Greg Flamer, Theodore Small, Megan Lanz, Farrell Cafferata−Jenkins, Mary Baranovich and Fletcher Whitwell. The motions of appellees Coalition for the Protection of Marriage and Alan Glover, Carson City Clerk−Recorder, for leave to file oversized answering briefs are GRANTED. (AC) (Entered: 01/28/2014)
113 ORDER of USCA, Ninth Circuit, as to 104 Notice of Appeal filed by Tara Newberry, Caren Cafferata−Jenkins, Katrina Miller, Antioco Carrillo, Sara Geiger, Adele Terranova, Karen Vibe, Beverly Sevcik, Mikyla Miller, Karen Goody, Greg Flamer, Theodore Small, Megan Lanz, Farrell Cafferata−Jenkins, Mary Baranovich and Fletcher Whitwell. The Appellants' unopposed motion for leave to file an oversized reply brief is GRANTED. (AC) (Entered: 02/27/2014)
114 ORDER of USCA, Ninth Circuit, as to 104 Notice of Appeal. This case is consolidated with District of Idaho cases 1:13−cv−00485−CWD and 1:13−cv−00482−CWD for the purposes of disposition. (EDS) (Entered:

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10/07/2014 10/07/2014
10/07/2014 10/07/2014 10/08/2014 10/08/2014 10/08/2014
10/08/2014
10/08/2014
10/09/2014 10/09/2014
10/09/2014

10/07/2014)
115 MEMORANDUM/OPINION of USCA, Ninth Circuit, Affirming, Reversing, and Remanding judgment of the US District court as to 104 Notice of Appeal. (EDS) (Entered: 10/07/2014)
116 Submission of PROPOSED ORDER on 115 USCA Memorandum/Opinion ; filed by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell Granting Permanent Injunctive Relief. (Borelli, Tara) (Entered: 10/07/2014)
118 ORDER of USCA, Ninth Circuit, as to 104 Notice of Appeal. The mandate shall issue forthwith. (EDS) (Entered: 10/08/2014)
119 MANDATE of USCA, Ninth Circuit, as to 115 USCA Memorandum/Opinion Affirming, Reversing, and Remanding judgment of the US District court re 104 Notice of Appeal. (EDS) (Entered: 10/08/2014)
117 ORDER OF RECUSAL. This action is referred to Chief Judge Gloria M. Navarro for reassignment. Signed by Judge Robert C. Jones on 10/8/2014. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 10/08/2014)
121 USCA Notice of US Supreme Court Order staying 119 USCA Mandate as to 115 USCA Memorandum/Opinion Affirming, Reversing, and Remanding judgment of the US District court re 104 Notice of Appeal. (EDS) (Entered: 10/08/2014)
122 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Gloria M. Navarro, on 10/8/2014. By Deputy Clerk: Aaron Blazevich. IT IS ORDERED that this case is reassigned to Judge James C. Mahan for all further proceedings. Chief Judge Robert C. Jones no longer assigned to case. All further documents must bear the correct case number 2:12−cv−00578−JCM−PAL. (no image attached) (Copies have been distributed pursuant to the NEF − ASB) (Entered: 10/08/2014)
123 USCA Notice of US Supreme Court Order re 119 USCA Mandate as to 115 USCA Memorandum/Opinion Affirming, Reversing, and Remanding judgment of the US District court re 104 Notice of Appeal.
IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12−17668 is hereby vacated. (EDS) (Entered: 10/08/2014)
124 ORDER of USCA, Ninth Circuit, 119 USCA Mandate as to 115 USCA Memorandum/Opinion Affirming, Reversing, and Remanding judgment of the US District court re 104 Notice of Appeal.
With respect to the emergency motion by the intervenor in appeal No. 12−17668 to recall the mandate in that case, we direct both the appellants and appellees, including the state parties, to respond to the intervenor's motion to recall the mandate by 5:00 p.m. Thursday, October 9, 2014. (EDS) (Entered: 10/08/2014)
125 MOTION to Substitute Attorney by Diana Alba. (Christian, Matthew) (Entered: 10/09/2014)
126 ORDER of USCA, Ninth Circuit, as to 104 Notice of Appeal. Intervenor− Defendant−Appellees has given notice that it has withdrawn in full its emergency motion to recall and stay the mandate of this court as issued on October 7, 2014, we will no longer require responses as directed by our order of yesterday. The mandate issued in the above captioned case on October 7, 2014 remains in full force and effect. (DKJ) (Entered: 10/09/2014)
NOTICE of Docket Correction to 125 NOTICE. ERROR: Wrong event selected by attorney Matthew Christian. CORRECTION: Clerk's office modified event as 125 MOTION to Substitute Attorney. (no image attached)(ASB) (Entered: 10/09/2014)

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10/09/2014
10/16/2014
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10/22/2014 11/20/2014 11/20/2014 11/21/2014 11/21/2014 11/24/2014

127 ORDER. The court hereby permanently enjoins the state of Nevada, its political subdivisions, and its officers, employees, and agents, from enforcing any constitutional provision, statute, regulation or policy preventing otherwise qualified same−sex couples from marrying, or denying recognition to marriages celebrated in other jurisdictions which, if the spouses were not of the same sex, would be valid under the laws of the state. Signed by Judge James C. Mahan on 10/9/14. (Copies have been distributed pursuant to the NEF − MMM) (Entered: 10/09/2014)
128 Unopposed MOTION to Extend Time regarding discovery/nondispositive matter (First Request) to File a Motion for Attorney's Fees and Bill of Costs by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 10/16/2014. (Renn, Peter) (Entered: 10/16/2014)
129 ORDER of USCA, Ninth Circuit, as to 104 Notice of Appeal. Plaintiffs− Appellants unopposed motion to extend time to seek attorneys fees and costs is GRANTED. (DKJ) (Entered: 10/17/2014)
130 ORDER granting 128 Motion to Extend Time to file a motion for attorney's fees and bill of costs. Plaintiffs motion for attorneys fees and bill of costs is due 30 days after (a) any further appellate review, including en banc proceedings before the Ninth Circuit or proceedings before the U.S. Supreme Court, becomes final, or (b) the time for seeking such review expires, whichever is later. Signed by Judge James C. Mahan on 10/17/2014. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 10/20/2014)
131 ORDER of USCA, Ninth Circuit, as to 104 Notice of Appeal. Plaintiffs−appellants and Defendants−Appellees are directed to file responses to Intervenor−Defendant−Appellees petition for rehearing en banc filed with this court on October 13, 2014. The responses shall not exceed fifteen (15) pages, and shall be filed within twenty−one (21) days of the date of this order. (DKJ) (Entered: 10/22/2014)
132 MOTION to Withdraw as Attorney by Shelbi Day &Melanie Cristol by Plaintiffs Mary Baranovich, Caren Cafferata−Jenkins, Farrell Cafferata−Jenkins, Antioco Carrillo, Greg Flamer, Sara Geiger, Karen Goody, Megan Lanz, Katrina Miller, Mikyla Miller, Tara Newberry, Beverly Sevcik, Theodore Small, Adele Terranova, Karen Vibe, Fletcher Whitwell. Motion ripe 11/20/2014. (Borelli, Tara) (Entered: 11/20/2014)
133 NOTICE of Change of Address by Tara Borelli. for Tara L. Borelli, Peter C. Renn, and Jon W. Davidson (Borelli, Tara) (Entered: 11/20/2014)
134 MINUTE ORDER IN CHAMBERS of the Honorable Judge James C. Mahan, on 11/21/2014 granting 132 Motion to Withdraw as Attorney. Melanie Cristol and Shelbi Day are hereby withdrawn from the case. (Copies have been distributed pursuant to the NEF − AMK) (Entered: 11/21/2014)
135 ORDER granting 125 Motion to Substitute Attorney. Attorney Matthew J. Christian for Diana Alba substituted for Attorney Michael L Foley. Signed by Judge James C. Mahan on 11/21/2014. (Copies have been distributed pursuant to the NEF − DKJ) (Entered: 11/21/2014)
136 NOTICE of Change of Address by Jon W. Davidson, Tara Borelli, Peter C Renn. (DKJ) (Entered: 11/25/2014)

 
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FOR PUBLICATION

FILED UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OCT 07 2014

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

SUSAN LATTA; TRACI EHLERS; LORI WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA ALTMAYER; AMBER BEIERLE; RACHAEL ROBERTSON,
Plaintiffs - Appellees,

No. 14-35420 D.C. No. 1:13-cv-00482-CWD
OPINION

v.

C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity,

Defendant - Appellant,

And

CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity,

Defendant,

STATE OF IDAHO,

Intervenor-Defendant.

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SUSAN LATTA; TRACI EHLERS; LORI WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA ALTMAYER; AMBER BEIERLE; RACHAEL ROBERTSON,

No. 14-35421 D.C. No. 1:13-cv-00482-CWD

Plaintiffs - Appellees,

v.

C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity,

Defendant,

And

CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity,

Defendant - Appellant,

STATE OF IDAHO,

Intervenor-Defendant Appellant.

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Appeal from the United States District Court for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding

BEVERLY SEVCIK; MARY BARANOVICH; ANTIOCO CARRILLO; THEODORE SMALL; KAREN GOODY; KAREN VIBE; FLETCHER WHITWELL; GREG FLAMER; MIKYLA MILLER; KATRINA MILLER; ADELE TERRANOVA; TARA NEWBERRY; CAREN CAFFERATAJENKINS; FARRELL CAFFERATAJENKINS; MEGAN LANZ; SARA GEIGER,

No. 12-17668 D.C. No. 2:12-cv-00578-RCJ-PAL
OPINION

Plaintiffs - Appellants,

v.

BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County, Nevada; AMY HARVEY, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada; ALAN GLOVER, in his official capacity as the Clerk Recorder for Carson City, Nevada,

Defendants - Appellees,

And

COALITION FOR THE PROTECTION

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OF MARRIAGE,
Intervenor-Defendant Appellee.
Appeal from the United States District Court for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted September 8, 20141 San Francisco, California
Before: REINHARDT, GOULD, and BERZON, Circuit Judges.
Opinion by Judge Reinhardt:
Both Idaho and Nevada have passed statutes and enacted constitutional
amendments preventing same-sex couples from marrying and refusing to recognize
same-sex marriages validly performed elsewhere.2 Plaintiffs, same-sex couples
1A disposition in Jackson v. Abercrombie, Nos. 12-16995 & 12-16998, is forthcoming separately.
2Idaho Const. Art. III, § 28 (“A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”); Idaho Code §§ 32-201 (“Marriage is a personal relation arising out of a civil contract between a man and a woman . . . .”), 32-202 (identifying as qualified to marry “[a]ny unmarried male . . . and unmarried female” of a certain age and “not otherwise disqualified.”); 32-209 (“All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriage, and marriages entered into under the laws of another state or
(continued...)
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who live in Idaho and Nevada and wish either to marry there or to have marriages entered into elsewhere recognized in their home states, have sued for declaratory relief and to enjoin the enforcement of these laws. They argue that the laws are subject to heightened scrutiny because they deprive plaintiffs of the fundamental due process right to marriage, and because they deny them equal protection of the law by discriminating against them on the bases of their sexual orientation and their sex. In response, Governor Otter, Recorder Rich, and the State of Idaho, along with the Nevada intervenors, the Coalition for the Protection of Marriage (“the Coalition”), argue that their laws survive heightened scrutiny, primarily because the states have a compelling interest in sending a message of support for the institution of opposite-sex marriage. They argue that permitting same-sex marriage will seriously undermine this message, and contend that the institution of oppositesex marriage is important because it encourages people who procreate to be responsible parents, and because opposite-sex parents are better for children than same-sex parents.

2(...continued) country with the intent to evade the prohibitions of the marriage laws of this state.”); Nev. Const. Art. 1, § 21 (“Only a marriage between a male and female person shall be recognized and given effect in this state.”); Nev. Rev. Stat. § 122.020(1) (“[A] male and female person . . . may be joined in marriage.”).
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Without the benefit of our decision in SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), reh’g en banc denied, 759 F.3d 990 (9th Cir. 2014), the Sevcik district court applied rational basis review and upheld Nevada’s laws. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). After we decided SmithKline, the Latta district court concluded that heightened scrutiny applied to Idaho’s laws because they discriminated based on sexual orientation, and invalidated them.3 Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at *14–18 (D. Idaho May 13, 2014). We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays4 who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.
I.

3The Latta court also found a due process violation because, it concluded, the laws curtailed plaintiffs’ fundamental right to marry. Latta v. Otter, No. 1:13CV-00482-CWD, 2014 WL 1909999, at *9–13 (D. Idaho May 13, 2014).
4We have recognized that “[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005), vacated, 547 U.S. 183 (2006).
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Before we reach the merits, we must address two preliminary matters: first, whether an Article III case or controversy still exists in Sevcik, since Nevada’s government officials have ceased to defend their laws’ constitutionality; and second, whether the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is controlling precedent that precludes us from considering plaintiffs’ claims.
A. Governor Sandoval and Clerk-Recorder Glover initially defended Nevada’s laws in the district court. However, they have since withdrawn their answering briefs from consideration by this Court, in light of our decision in SmithKline, 740 F.3d at 480-81 (holding heightened scrutiny applicable). Governor Sandoval now asserts that United States v. Windsor, 133 S. Ct. 2675 (2013), “signifies that discrimination against same-sex couples is unconstitutional,” and that “[a]ny uncertainty regarding the interpretation of Windsor was . . . dispelled” by SmithKline. As a result, we have not considered those briefs, and the Governor and Clerk-Recorder were not heard at oral argument, pursuant to Fed. R. App. P. 31(c). The Nevada Governor and Clerk Recorder remain parties, however, and continue to enforce the laws at issue on the basis of a judgment in their favor below. As a result, we are still presented with a live case or controversy in need of
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resolution. Despite the fact that Nevada “largely agree[s] with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact the [state] intend[s] to enforce the challenged law against that party.” Windsor, 133 S. Ct. at 2686–87 (citation and quotation marks omitted). Although the state defendants withdrew their briefs, we are required to ascertain and rule on the merits arguments in the case, rather than ruling automatically in favor of plaintiffs-appellants. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 887 n.7 (9th Cir. 2010) (“[Defendant’s] failure to file a brief does not compel a ruling in [plaintiff’s] favor, given that the only sanction for failure to file an answering brief is forfeiture of oral argument.”).
There remains a question of identifying the appropriate parties to the case before us—specifically, whether we should consider the arguments put forward by the Nevada intervenor, the Coalition for the Protection of Marriage. As plaintiffs consented to their intervention in the district court—at a point in the litigation before Governor Sandoval and Clerk-Recorder Glover indicated that they would no longer argue in support of the laws—and continue to so consent, the propriety of the intervenor’s participation has never been adjudicated.
Because the state defendants have withdrawn their merits briefs, we face a situation akin to that in Windsor. There, a case or controversy remained between
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Windsor and the United States, which agreed with her that the Defense of Marriage Act was unconstitutional but nonetheless refused to refund the estate tax she had paid. Here as there, the state defendants’ “agreement with [plaintiffs’] legal argument raises the risk that instead of a real, earnest and vital controversy, the Court faces a friendly, non-adversary proceeding . . . .” 133 S. Ct. at 2687 (citations and quotation marks omitted). Hearing from the Coalition helps us “to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). As a result, we consider the briefs and oral argument offered by the Coalition, which, Governor Sandoval believes, “canvass the arguments against the Appellants’ position and the related policy considerations.”5
B. Defendants argue that we are precluded from hearing this case by Baker, 409 U.S. 810. In that case, the Minnesota Supreme Court had rejected due process and equal protection challenges to a state law limiting marriage to a man and a woman.

5For the sake of convenience, we refer throughout this opinion to arguments advanced generally by “defendants”; by this we mean the parties that continue actively to argue in defense of the laws—the Idaho defendants and the Nevada intervenor—and not Governor Sandoval and Clerk-Recorder Glover.
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191 N.W.2d 185, 186–87 (Minn. 1971). The United States Supreme Court summarily dismissed an appeal from that decision “for want of a substantial federal question.” Baker, 409 U.S. at 810. Such summary dismissals “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions,” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam), until “doctrinal developments indicate otherwise,” Hicks v. Miranda, 422 U.S. 332, 343–44 (1975) (citation and quotation marks omitted). Defendants contend that this decades-old case is still good law, and therefore bars us from concluding that same-sex couples have a due process or equal protection right to marriage.
However, “subsequent decisions of the Supreme Court” not only “suggest” but make clear that the claims before us present substantial federal questions.6 Wright v. Lane Cnty. Dist. Ct., 647 F.2d 940, 941 (9th Cir. 1981); see Windsor,

6To be sure, the Court made explicit in Windsor and Lawrence that it was not deciding whether states were required to allow same-sex couples to marry. Windsor, 133 S. Ct. at 2696 (“This opinion and its holding are confined to those lawful marriages [recognized by states].”); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”). The Court did not reach the question we decide here because it was not presented to it. Although these cases did not tell us the answers to the federal questions before us, Windsor and Lawrence make clear that these are substantial federal questions we, as federal judges, must hear and decide.
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133 S. Ct. at 2694–96 (holding unconstitutional under the Fifth Amendment a federal law recognizing opposite-sex-sex but not same-sex marriages because its “principal purpose [was] to impose inequality, not for other reasons like governmental efficiency”); Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (recognizing a due process right to engage in intimate conduct, including with a partner of the same sex); Romer v. Evans, 517 U.S. 620, 631–34 (1996) (invalidating as an irrational denial of equal protection a state law barring protection of lesbians and gays under state or local anti-discrimination legislation or administrative policies). Three other circuits have issued opinions striking down laws like those at issue here since Windsor, and all agree that Baker no longer precludes review. Accord Baskin v. Bogan, No. 14-2386, 2014 WL 4359059, at *7 (7th Cir. Sept. 4, 2014); Bostic v. Schaefer, 760 F.3d 352, 373–75 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193, 1204–08 (10th Cir. 2014). As any observer of the Supreme Court cannot help but realize, this case and others like it present not only substantial but pressing federal questions.
II. Plaintiffs are ordinary Idahoans and Nevadans. One teaches deaf children. Another is a warehouse manager. A third is an historian. Most are parents. Like all human beings, their lives are given greater meaning by their intimate, loving,
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committed relationships with their partners and children. “The common vocabulary of family life and belonging that other[s] [] may take for granted” is, as the Idaho plaintiffs put it, denied to them—as are all of the concrete legal rights, responsibilities, and financial benefits afforded opposite-sex married couples by state and federal law7—merely because of their sexual orientation.

7Nevada, unlike Idaho, has enacted a domestic partnership regime. Since 2009, both same-sex and opposite-sex couples have been allowed to register as domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010 et seq. Domestic partners are generally treated like married couples for purposes of rights and responsibilities—including with respect to children—under state law. However, domestic partners are denied nearly all of the benefits afforded married couples under federal law—including, since Windsor, same-sex couples married under state law.
The fact that Nevada has seen fit to give same-sex couples the opportunity to enjoy the benefits afforded married couples by state law makes its case for the constitutionality of its regime even weaker than Idaho’s. With the concrete differences in treatment gone, all that is left is a message of disfavor. The Supreme Court has “repeatedly emphasized [that] discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants,” can cause serious “injuries to those who are denied equal treatment solely because of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728, 739–40 (1984) (citation omitted).
If Nevada were concerned, as the Coalition purports it to be, that state recognition of same-sex unions would make the institution of marriage “genderless” and thereby undermine opposite-sex spouses’ commitments to each other and their children, it would be ill-advised to permit opposite-sex couples to participate in the alternative domestic partnership regime it has established. However, Nevada does just that.
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Defendants argue that their same-sex marriage bans do not discriminate on the basis of sexual orientation, but rather on the basis of procreative capacity. Effectively if not explicitly, they assert that while these laws may disadvantage same-sex couples and their children, heightened scrutiny is not appropriate because differential treatment by sexual orientation is an incidental effect of, but not the reason for, those laws. However, the laws at issue distinguish on their face between opposite-sex couples, who are permitted to marry and whose out-of-state marriages are recognized, and same-sex couples, who are not permitted to marry and whose marriages are not recognized. Whether facial discrimination exists “does not depend on why” a policy discriminates, “but rather on the explicit terms of the discrimination.” Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991). Hence, while the procreative capacity distinction that defendants seek to draw could in theory represent a justification for the discrimination worked by the laws, it cannot overcome the inescapable conclusion that Idaho and Nevada do discriminate on the basis of sexual orientation.
In SmithKline, we held that classifications on the basis of sexual orientation are subject to heightened scrutiny. 740 F.3d at 474. We explained:

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In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.
Id. at 481.
Windsor, we reasoned, applied heightened scrutiny in considering not the
Defense of Marriage Act’s hypothetical rationales but its actual, motivating
purposes.8 SmithKline, 740 F.3d at 481. We also noted that Windsor declined to
adopt the strong presumption in favor of constitutionality and the heavy deference
to legislative judgments characteristic of rational basis review. Id. at 483. We
concluded:
Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or secondclass status.
Id.

8Although as discussed in the text, SmithKline instructs us to consider the states’ actual reasons, and not post-hoc justifications, for enacting the laws at issue, these actual reasons are hard to ascertain in this case. Some of the statutory and constitutional provisions before us were enacted by state legislatures and some were enacted by voters, and we have been informed by all parties that the legislative histories are sparse. We shall assume, therefore, that the justifications offered in defendants’ briefs were in fact the actual motivations for the laws.
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We proceed by applying the law of our circuit regarding the applicable level of scrutiny. Because Idaho and Nevada’s laws discriminate on the basis of sexual orientation, that level is heightened scrutiny.
III. Defendants argue that their marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting. Governor Otter argues that same-sex marriage “teaches everyone—married and unmarried, gay and straight, men and women, and all the children—that a child knowing and being reared by her mother and father is neither socially preferred nor officially encouraged.” Governor Otter seeks to have the state send the opposite message to all Idahoans: that a child reared by its biological parents is socially preferred and officially encouraged. This argument takes two related forms: First, defendants make a “procreative channeling” argument: that the norms of opposite-sex marriage ensure that as many children as possible are raised by their married biological mothers and fathers. They claim that same-sex marriage will undermine those existing norms, which encourage people in opposite-sex relationships to place their children’s interests above their own and preserve intact family units, instead of pursuing their own emotional and sexual needs elsewhere. In short, they argue that allowing
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same-sex marriages will adversely affect opposite-sex marriage by reducing its appeal to heterosexuals, and will reduce the chance that accidental pregnancy will lead to marriage. Second, Governor Otter and the Coalition (but not the state of Idaho) argue that limiting marriage to opposite-sex couples promotes child welfare because children are most likely to thrive if raised by two parents of opposite sexes, since, they assert, mothers and fathers have “complementary” approaches to parenting.9 Thus, they contend, children raised by opposite-sex couples receive a better upbringing.
A. We pause briefly before considering the substance of defendants’ arguments to address the contention that their conclusions about the future effects of same-sex marriage on parenting are legislative facts entitled to deference. Defendants have not demonstrated that the Idaho and Nevada legislatures actually found the facts asserted in their briefs; even if they had, deference would not be warranted.

9These arguments are not novel. The Bipartisan Legal Advisory Group (BLAG) relied in part on similar contentions about procreative channeling and gender complementarity in its attempt to justify the federal Defense of Marriage Act, but the Court did not credit them. Brief on the Merits for Respondent BLAG at 44-49, Windsor, 133 S. Ct. 2675 (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 280 at *74–82.
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Unsupported legislative conclusions as to whether particular policies will have societal effects of the sort at issue in this case—determinations which often, as here, implicate constitutional rights—have not been afforded deference by the Court. To the contrary, we “retain[] an independent constitutional duty to review factual findings where constitutional rights are at stake. . . . Uncritical deference to [legislatures’] factual findings in these cases is inappropriate.” Gonzales v. Carhart, 550 U.S. 124, 165–66 (2007); see also Hodgson v. Minnesota, 497 U.S. 417, 450–55 (1990).
B. Marriage, the Coalition argues, is an “institution directed to certain great social tasks, with many of those involving a man and a woman united in the begetting, rearing, and education of children”; it is being “torn away,” they claim, “from its ancient social purposes and transformed into a government-endorsed celebration of the private desires of two adults (regardless of gender) to unite their lives sexually, emotionally, and socially for as long as those personal desires last.” Defendants struggle, however, to identify any means by which same-sex marriages will undermine these social purposes. They argue vehemently that same-sex marriage will harm existing and especially future opposite-sex couples and their

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children because the message communicated by the social institution of marriage will be lost.
As one of the Nevada plaintiffs’ experts testified, there is no empirical support for the idea that legalizing same-sex marriage would harm—or indeed, affect—opposite-sex marriages or relationships. That expert presented data from Massachusetts, a state which has permitted same-sex marriage since 2004, showing no decrease in marriage rates or increase in divorce rates in the past decade.10 See Amicus Brief of Massachusetts et al. 23–27; see also Amicus Brief of American Psychological Association et al. 8–13. It would seem that allowing couples who want to marry so badly that they have endured years of litigation to win the right to do so would reaffirm the state’s endorsement, without reservation, of spousal and parental commitment. From which aspect of same-sex marriages, then, will opposite-sex couples intuit the destructive message defendants fear? Defendants offer only unpersuasive suggestions.

10The Coalition takes issue with this conclusion, arguing that the effects of same-sex marriage might not manifest themselves for decades, because “something as massive and pervasive in our society and humanity as the man-woman marriage institution, like a massive ocean-going ship, does not stop or turn in a short space or a short time.” Given that the discriminatory impact on individuals because of their sexual orientation is so harmful to them and their families, such unsupported speculation cannot justify the indefinite continuation of that discrimination.
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First, they argue that since same-sex families will not include both a father and a mother, a man who has a child with a woman will conclude that his involvement in that child’s life is not essential. They appear to contend that such a father will see a child being raised by two women and deduce that because the state has said it is unnecessary for that child—who has two parents—to have a father, it is also unnecessary for his child to have a father. This proposition reflects a crass and callous view of parental love and the parental bond that is not worthy of response. We reject it out of hand. Accord Kitchen, 755 F.3d at 1223 (concluding that it was “wholly illogical” to think that same-sex marriage would affect opposite-sex couples’ choices); Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 998 (N.D. Cal. 2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal. 2010).
Defendants also propose another possible means by which endorsing samesex marriage could discourage opposite-sex marriage, albeit less explicitly: opposite-sex couples who disapprove of same-sex marriage will opt less frequently or enthusiastically to participate in an institution that allows same-sex couples to participate. However, the fear that an established institution will be undermined due to private opposition to its inclusive shift is not a legitimate basis for retaining the status quo. In United States v. Virginia, the Court explained:
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The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “selffulfilling prophec[ies],” see Mississippi Univ. for Women [v. Hogan], 458 U.S. [718,] 730 [(1982)], once routinely used to deny rights or opportunities. . . . A like fear, according to a 1925 report, accounted for Columbia Law School’s resistance to women’s admission, although “[t]he faculty . . . never maintained that women could not master legal learning.11 . . . No, its argument has been . . . more practical. If women were admitted to the Columbia Law School, [the faculty] said, then the choicer, more manly and red-blooded graduates of our great universities would go to the Harvard Law School!” The Nation, Feb. 18, 1925, p. 173.
518 U.S. 515, 542–44 (1996); see also Palmore v. Sidoti, 466 U.S. 429, 433 (1984)
(“The Constitution cannot control such prejudices but neither can it tolerate them.
Private biases may be outside the reach of the law, but the law cannot, directly or
indirectly, give them effect.”). The Sevcik district court thus erred in crediting the
argument that “a meaningful percentage of heterosexual persons would cease to
value the civil institution as highly as they previously had and hence enter it less
frequently . . . because they no longer wish to be associated with the civil
institution as redefined,” both because defendants failed to produce any support for

11Likewise, Governor Otter assures us that Idaho’s laws were not motivated by judgments about the relative emotional commitments of same-sex and oppositesex couples; his argument is about an “ethos,” he claims, and so is not weakened by the fact that same-sex couples may, as he admits, be just as child-oriented.
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that prediction, and because private disapproval is a categorically inadequate justification for public injustice. Sevcik, 911 F. Supp. 2d at 1016.
Same-sex marriage, Governor Otter asserts, is part of a shift towards a consent-based, personal relationship model of marriage, which is more adultcentric and less child-centric.12 The Latta district court was correct in concluding, however, that “marriage in Idaho is and has long been a designedly consent-based institution. . . . Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision” of conjugal marriage. Latta, 2014 WL 1909999, at *23.
Idaho focuses on another aspect of the procreative channeling claim. Because opposite-sex couples can accidentally conceive (and women may choose not to terminate unplanned pregnancies), so the argument goes, marriage is important because it serves to bind such couples together and to their children. This makes some sense. Defendants’ argument runs off the rails, however, when they suggest that marriage’s stabilizing and unifying force is unnecessary for same-

12He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.
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sex couples, because they always choose to conceive or adopt a child.13 As they
themselves acknowledge, marriage not only brings a couple together at the initial
moment of union; it helps to keep them together, “from [that] day forward, for
better, for worse, for richer, for poorer, in sickness and in health.” Raising children
is hard; marriage supports same-sex couples in parenting their children, just as it
does opposite-sex couples.
Moreover, marriage is not simply about procreation, but as much about
expressions of emotional support and public commitment . . . . [M]any religions recognize marriage as having spiritual significance; . . . therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication . . . . [M]arital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety,
13As Judge Richard Posner put it, bluntly:
[These states] think[] that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured . . . to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
Baskin, 2014 WL 4359059, at *10 (7th Cir. Sept. 4, 2014). Idaho and Nevada’s laws are both over- and under-inclusive with respect to
parental fitness. A man and a woman who have been convicted of abusing their children are allowed to marry; same-sex partners who have been adjudicated to be fit parents in an adoption proceeding are not.
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inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). Turner v. Safley, 482 U.S. 78, 95–96 (1987) (recognizing that prisoners, too, enjoyed the right to marry, even though they were not allowed to have sex, and even if they did not already have children). Although many married couples have children, marriage is at its essence an “association that promotes . . . a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (recognizing that married couples have a privacy right to use contraception in order to prevent procreation). Just as “it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” Lawrence, 539 U.S. at 567, it demeans married couples—especially those who are childless—to say that marriage is simply about the capacity to procreate. Additionally, as plaintiffs argue persuasively, Idaho and Nevada’s laws are grossly over- and under-inclusive with respect to procreative capacity. Both states give marriage licenses to many opposite-sex couples who cannot or will not reproduce—as Justice Scalia put it, in dissent, “the sterile and the elderly are

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allowed to marry,” Lawrence, 539 U.S. at 604–05—but not to same-sex couples who already have children or are in the process of having or adopting them.14
A few of Idaho and Nevada’s other laws, if altered, would directly increase the number of children raised by their married biological parents. We mention them to illustrate, by contrast, just how tenuous any potential connection between a ban on same-sex marriage and defendants’ asserted aims is. For that reason alone, laws so poorly tailored as those before us cannot survive heightened scrutiny.
If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by

14Defendants acknowledge this, but argue that it would be unconstitutionally intrusive to determine procreative capacity or intent for opposite-sex couples, and that the states must therefore paint with a broad brush to ensure that any couple that could possibly procreate can marry. However, Idaho and Nevada grant the right to marry even to those whose inability to procreate is obvious, such as the elderly.
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single people. Neither state does. See Idaho Code §§ 39-5401 et seq.; Nev. Rev. Stat. §§ 122A.200(1)(d), 126.051(1)(a), 126.510 et seq., 127.040; see also Carla Spivack, The Law of Surrogate Motherhood in the United States, 58 Am. J. Comp. L. 97, 102 & n.15 (2010); Idaho is a destination for surrogacy, KTVB.com (Dec. 5, 2013).
In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada materially harm and demean same-sex couples and their children.15 Windsor, 133 S. Ct. at 2694. Denying children resources and stigmatizing their families on this basis is “illogical and unjust.” Plyler v. Doe, 457 U.S. 202, 220 (1982) (citation omitted). It is counterproductive, and it is unconstitutional.
C.

15Idaho attempts to rebut testimony by the Idaho plaintiffs’ expert that children of unmarried same-sex couples do just as well as those of married opposite-sex couples; the state mistakenly argues that this evidence shows that the children of same-sex couples are not harmed when the state withholds from their parents the right to marry. A more likely explanation for this expert’s findings is that when same-sex couples raise children, whether adopted or conceived through the use of assisted reproductive technology, they have necessarily chosen to assume the financial, temporal, and emotional obligations of parenthood. This does not lead, however, to the conclusion that these children, too, would not benefit from their parents’ marriage, just as children with opposite-sex parents do.
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Governor Otter and the Coalition, but not the state of Idaho, also argue that
children should be raised by both a male parent and a female parent. They assert
that their marriage laws have “recognized, valorized and made normative the roles
of ‘mother’ and ‘father’ and their uniting, complementary roles in raising their
offspring,” and insist that allowing same-sex couples to marry would send the
message that “men and women are interchangeable [and that a] child does not need
a mother and a father.”
However, as we explained in SmithKline, Windsor “forbid[s] state action
from ‘denoting the inferiority’” of same-sex couples. 740 F.3d at 482 (citing
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954)).
It is the identification of such a class by the law for a separate and lesser public status that “make[s] them unequal.” Windsor, 133 S. Ct. at 2694. DOMA was “practically a brand upon them, affixed by the law, an assertion of their inferiority.” Strauder v. West Virginia, 100 U.S. 303, 308 (1879). Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose.
SmithKline, 740 F.3d at 482. Windsor makes clear that the defendants’ explicit
desire to express a preference for opposite-sex couples over same-sex couples is a
categorically inadequate justification for discrimination. Expressing such a
preference is precisely what they may not do.

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Defendants’ argument is, fundamentally, non-responsive to plaintiffs’ claims to marriage rights; instead, it is about the suitability of same-sex couples, married or not, as parents, adoptive or otherwise. That it is simply an ill-reasoned excuse for unconstitutional discrimination is evident from the fact that Idaho and Nevada already allow adoption by lesbians and gays. The Idaho Supreme Court has determined that “sexual orientation [is] wholly irrelevant” to a person’s fitness or ability to adopt children. In re Adoption of Doe, 326 P.3d 347, 353 (Idaho 2014). “In a state where the privilege of becoming a child’s adoptive parent does not hinge on a person’s sexual orientation, it is impossible to fathom how hypothetical concerns about the same person’s parental fitness could possibly relate to civil marriage.” Latta, 2014 WL 1909999, at *23. By enacting a domestic partnership law, Nevada, too, has already acknowledged that no harm will come of treating same-sex couples the same as opposite-sex couples with regard to parenting. Nev. Rev. Stat. § 122A.200(1)(d) affords same-sex domestic partners parenting rights identical to those of married couples, including those related to adoption, custody and visitation, and child support. See also St. Mary v. Damon, 309 P.3d 1027, 1033 (Nev. 2013) (en banc) (“Both the Legislature and this court have acknowledged that, generally, a child’s best interest is served by maintaining two actively involved parents. To that end, the Legislature has recognized that the children of
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same-sex domestic partners bear no lesser rights to the enjoyment and support of two parents than children born to married heterosexual parents.”).
To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in “family values.” In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.
Thus, we need not address the constitutional restraints the Supreme Court has long imposed on sex-role stereotyping, which may provide another potentially persuasive answer to defendants’ theory. See Virginia, 518 U.S. at 533 (explaining that justifications which “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females” are inadequate to survive heightened scrutiny); see also Caban v. Mohammed, 441 U.S. 380, 389 (1979) (rejecting the claim that “any universal difference between maternal and paternal relations at every phase of a child’s development” justified sex-based distinctions in adoption laws). We note, in addition, that defendants have offered no probative evidence in support of their “complementarity” argument.
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IV. Both the Idaho defendants and the Coalition advance a few additional justifications, though all are unpersuasive.16 First, they argue that the population of each state is entitled to exercise its democratic will in regulating marriage as it sees fit. Each state “has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.” Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J., concurring). True enough. But a primary purpose of the Constitution is to protect minorities from oppression by majorities. As Windsor itself made clear, “state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” 133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967)). Thus, considerations of federalism cannot carry the day for defendants. They must instead rely on the substantive arguments that we find lacking herein. Second, defendants argue that allowing same-sex couples to marry would threaten the religious liberty of institutions and people in Idaho and Nevada.
16None of the arguments advanced by other states in defense of their bans is any more persuasive. In particular, we agree with the Seventh Circuit that states may not “go slow” in extending to same-sex couples the right to marry; “it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying [if not proving] its fears; it has provided none.” Baskin, 2014 WL 4359059, at *16–17.
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Whether a Catholic hospital must provide the same health care benefits to its
employees’ same-sex spouses as it does their opposite-sex spouses, and whether a
baker is civilly liable for refusing to make a cake for a same-sex wedding, turn on
state public accommodations law, federal anti-discrimination law, and the
protections of the First Amendment.17 These questions are not before us. We
merely note that avoiding the enforcement of anti-discrimination laws that “serv[e]
compelling state interests of the highest order” cannot justify perpetuation of an
otherwise unconstitutionally discriminatory marriage regime. Bd. of Dirs. of
Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (citation omitted).
Third, the Coalition argues that Nevada’s ban is justified by the state’s
interest in protecting “the traditional institution of marriage.”18 Modern marriage
17See, e.g., Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M. 2012) (holding that a wedding photographer was liable for discrimination against a samesex couple under state public accommodations law, and that this law did not violate the First Amendment), cert. denied, 134 S. Ct. 1787 (2014). Nevada law currently prohibits discrimination based on sexual orientation in public accommodations, while Idaho law does not. Nev. Rev. Stat. §§ 651.050(3), 651.070; Dan Popkey, Idaho doesn’t protect gays from discrimination, but Otter says that does not make the state anti-gay, Idaho Statesman (Feb. 23, 2014).
We note also that an increasing number of religious denominations do sanctify same-sex marriages. Amicus Brief of Bishops of the Episcopal Church in Idaho et al. 8–9. Some religious organizations prohibit or discourage interfaith and interracial marriage, but it would obviously not be constitutional for a state to do so. Amicus Brief of the Anti-Defamation League et al. 23–25.
18This argument was not advanced to this Court by the Idaho defendants. 30

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regimes, however, have evolved considerably; within the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands. See generally Claudia Zaher, When A Woman's Marital Status Determined Her Legal Status: A Reserach Guide on the Common Law Doctrine of Coverture, 94 Law Libr. J. 459, 460–61 (2002) (“Under coverture, a wife simply had no legal existence. She became . . . ‘civilly dead.’”). Women lost their citizenship when they married foreign men. See Kristin Collins, When Father’s Rights Are Mothers’ Duties, 109 Yale L.J. 1669, 1686–89 (2000). (In fact, women, married or not, were not allowed to serve on juries or even to vote. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 131–35 (1994).). Before no-fault divorce laws were enacted, separated spouses had to fabricate adulterous affairs in order to end their marriages. Lawrence M. Friedman, A History of American Law 577–78 (2005). As plaintiffs note, Nevada has been a veritable pioneer in changing these practices, enacting (and benefitting economically from) laws that made it among the easiest places in the country to get married and un-married. Both Idaho and Nevada’s marriage regimes, as they exist today, bear little resemblance to those in place a century ago. As a result, defendants cannot credibly argue that their laws protect a

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“traditional institution”; at most, they preserve the status quo with respect to one aspect of marriage—exclusion of same-sex couples.
Certainly, the exclusion of same-sex couples from marriage is longstanding. However, “it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been.” Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941, 961 n.23 (Mass. 2003). The anti-miscegenation laws struck down in Loving were longstanding. Here as there, however, “neither history nor tradition [can] save [the laws] from constitutional attack.” Lawrence, 539 U.S. at 577–78 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
V. Idaho and Nevada’s marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere,19 impose profound legal, financial, social and psychic harms on numerous citizens of those states. These harms are not inflicted on opposite-sex couples, who may, if

19Because we hold that Idaho and Nevada may not discriminate against same-sex couples in administering their own marriage laws, it follows that they may not discriminate with respect to marriages entered into elsewhere. Neither state advances, nor can we imagine, any different—much less more persuasive—justification for refusing to recognize same-sex marriages performed in other states or countries.
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they wish, enjoy the rights and assume the responsibilities of marriage. Laws that treat people differently based on sexual orientation are unconstitutional unless a “legitimate purpose . . . overcome[s]” the injury inflicted by the law on lesbians and gays and their families. SmithKline, 740 F.3d at 481–82.
Defendants’ essential contention is that bans on same-sex marriage promote the welfare of children, by encouraging good parenting in stable opposite-sex families. Heightened scrutiny, however, demands more than speculation and conclusory assertions, especially when the assertions are of such little merit. Defendants have presented no evidence of any such effect. Indeed, they cannot even explain the manner in which, as they predict, children of opposite-sex couples will be harmed. Their other contentions are equally without merit. Because defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.
The official message of support that Governor Otter and the Coalition wish to send in favor of opposite-sex marriage is equally unconstitutional, in that it necessarily serves to convey a message of disfavor towards same-sex couples and their families. This is a message that Idaho and Nevada simply may not send.

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The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions. When we integrated our schools, education improved. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 492–95 (1954). When we opened our juries to women, our democracy became more vital. See Taylor v. Louisiana, 419 U.S. 522, 535–37 (1975). When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. See Witt v. Dep’t of Air Force, 527 F.3d 806, 821 n.11 (9th Cir. 2008). When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.
The judgment of the district court in Latta v. Otter is AFFIRMED. The judgment of the district court in Sevcik v. Sandoval is REVERSED, and the case is REMANDED to the district court for the prompt issuance of an injunction permanently enjoining the state, its political subdivisions, and its officers, employees, and agents, from enforcing any constitutional provision, statute, regulation or policy preventing otherwise qualified same-sex couples from marrying, or denying recognition to marriages celebrated in other jurisdictions which, if the spouses were not of the same sex, would be valid under the laws of the state.
AFFIRMED REVERSED and REMANDED.
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Counsel
Lawrence G. Wasden, Attorney General, Steven L. Olsen, Chief of Civil Litigation Division, W. Scott Zanzig, Deputy Attorney General, and Clay R. Smith, Deputy Attorney General, Office of the Attorney General, Boise, Idaho, for DefendantAppellant Christopher Rich and Intervenor-Defendant-Appellant State of Idaho
Monte Neil Stewart (argued) and Daniel W. Bower, Stewart Taylor & Morris PLLC, Boise, Idaho; Thomas C. Perry and Cally A. Younger, Office of the Governor, Boise, Idaho, for Defendant-Appellant Governor C.L. “Butch” Otter
Deborah A. Ferguson (argued), The Law Office of Deborah A. Ferguson, PLLC, Boise, Idaho; Craig Harrison Durham, Durham Law Office, PLLC, Boise, Idaho; Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, California, for Plaintiffs-Appellees Susan Latta, Traci Ehlers, Lori Watsen, Sharene Watsen, Shelia Robertson, Andrea Altmeyer, Amber Beierle, and Rachael Robertson
Tara L. Borelli (argued), Lambda Legal Defense and Education Fund, Inc., Atlanta, Georgia; Jon W. Davidson, Peter C. Renn, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California; Carla Christofferson, Dawn Sestito, Dimitri Portnoi, Melanie Cristol, and Rahi Azizi, O’Melveny & Myers LLP, Los Angeles, California; Kelly H. Dove and Marek P. Bute, Snell & Wilmer LLP, Las Vegas, Nevada, for Plaintiffs-Appellants Beverly Sevcik, Mary Baranovich, Antioco Carrillo, Theodore Small, Karen Goody, Karen Vibe, Fletcher Whitwell, Greg Flamer, Mikyla Miller, Katrina Miller, Adele Terranova, Tara Newberry, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Megan Lanz, Sara Geiger
Catherine Cortez Masto, Attorney General, C. Wayne Howle, Solicitor General, Office of the Attorney General, Carson City, Nevada, for Defendant-Appellee Governor Brian Sandoval
Neil A. Rombardo, District Attorney, Randal R. Munn, Chief Deputy District Attorney, Joseph L. Ward, Jr., Senior Deputy District Attorney, Carson City District Attorney’s Office, Carson City, Nevada, for Defendant-Appellee Alan Glover
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Monte Neil Stewart (argued), Craig G. Taylor, and Daniel W. Bower, Stewart Taylor & Morris PLLC, Boise, Idaho, for Intervenor-Defendant-Appellee Coalition for the Protection of Marriage
Counsel for Amici
Shannon P. Minter, Christopher F. Stoll, and Samantha Ames, National Center for Lesbian Rights, San Francisco, California, for Amici Curiae 13 Public Interest and Legal Service Organizations
Michael L. Whitlock, Susan Baker Manning, Jared A. Craft, Sara Carian, John A. Polito, and Erik Wilson, Bingham McCutchen LLP, Washington, D.C., for Amici Curiae 27 Employers and Organizations Representing Employers
Byron J. Babione, David Austin R. Nimocks, and James A. Campbell, Alliance Defending Freedom, Scottsdale, Arizona, for Amicus Curiae Alliance Defending Freedom
Dean Robert Broyles, Western Center for Law & Policy, Escondido, California, for Amicus Curiae Helen M. Alvare
Staci J. Pratt and Allen Lichtenstein, ACLU of Nevada Foundation, Las Vegas, Nevada; Daniel M. Gluck and Lois K. Perrin, ACLU of Hawai’i Foundation, Honolulu, Hawai’i, for Amici Curiae American Civil Liberties Union Foundation of Nevada and American Civil Liberties Union Foundation of Hawai’i
Nathalie F.P. Gilfoyle, American Psychological Association, Washington D.C.; Paul M. Smith, Jenner & Block LLP, Washington, D.C., for Amici Curiae American Psychological Association, American Psychiatric Association, and National Association of Social Workers
Nathalie F.P. Gilfoyle, American Psychological Association, Washington, D.C.; Paul M. Smith, Jenner & Block LLP, Washington, D.C., for Amici Curiae American Psychological Association, National Association of Social Workers, American Association for Marriage and Family Therapy, American Psychoanalytic Association, and Hawaii Psychological Association

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Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andra Troy, and Andrew P. Meiser, Cleary Gottlieb Steen & Hamilton LLP, New York, New York, for Amicus Curiae American Sociological Association
Rocky C. Tsai, Samuel P. Bickett, and Rebecca Harlow, Ropes & Gray LLP, San Francisco, California; Steven M. Freeman, Seth M. Marnin, and Michelle Deutchman, Anti-Defamation League, New York, New York, for Amici Curiae Anti-Defamation League, Americans United for the Separation of Church and State, Bend the Arc: A Jewish Partnership for Justice, Central Conference of American Rabbis, Global Justice Institute, Hadassah, the Women’s Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Japanese American Citizens League, Jewish Social Policy Action Network, Keshet, Metropolitan Community Churches, More Light Presbyterians, National Council of Jewish Women, Nehirim, People for the American Way Foundation, Presbyterian Welcome, Reconcilingworks: Lutherans for Full Participation, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Sikh American Legal Defense and Education Fund, Society for Humanistic Judaism, T’ruah: The Rabbinic Call for Human Rights, Women of Reform Judaism, and Women’s League for Conservative Judaism
Rocky C. Tsai, Samuel P. Bickett, Rebecca Harlow, and Idin Kashefipour, Ropes & Gray LLP, San Francisco, California; Steven M. Freeman, Seth M. Marnin, and Michelle Deutchman, Anti-Defamation League, New York, New York; Eric Alan Isaacson, Anti-Defamation League, San Diego, California, for Amici Curiae AntiDefamation League, Americans United for Separation of Church and State, Bend the Arc: A Jewish Partnership for Justice, Board of Trustees of the Pacific Central District/Unitarian Universalist Association, Hadassah, the Women’s Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Interfaith Alliance Hawai’i, Japanese American Citizens League, Keshet, National Council of Jewish Women, Metropolitan Community Churches, More Light Presbyterians, Nehirim, Pacific Central District/Unitarian Universalist Association, Pacific Southwest District/Unitarian Universalist Association, People for the American Way Foundation, Reconcilingworks: Lutherans for Full Participation, Religious Institute, Inc., Sikh American Legal Defense and Education Fund, Society for Humanistic Judaism, South Asian Americans Leading Together, Southern California Nevada Conference of the United Church of Christ, T’ruah: The Rabbinic Call for Human Rights, Union for Reform Judaism, Central
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Conference of American Rabbis, Women of Reform Judaism, Unitarian Universalist Association, Universal Fellowship of Metropolitan Community Churches, and Women’s League for Conservative Judaism
Jyotin Hamid and Joseph Rome, Debevoise & Plimpton LLP, New York, New York, for Amicus Curiae Professor Carlos A. Ball
Daniel McNeel Lane, Jr., Akin Gump Strauss Hauer & Feld LLP, San Antonio, Texas; Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California, for Amici Curiae Historians of Marriage Peter W. Bardaglio, Norma Basch, Stephanie Coontz, Nancy F. Cott, Toby L. Ditz, Laura F. Edwards, Michael Grossberg, Hendrik Hartog, Ellen Herman, Martha Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine Tyler May, Serena Mayeri, Steve Mintz, Elizabeth Pleck, Carole Shammas, Mary L. Shanley, Amy Dru Stanley, and Barbara Welke
Jerome C. Roth and Amelia L. B. Sargent, Munger, Tolles & Olson LLP, San Francisco, California, for Amici Curiae Bay Area Lawyers for Individual Freedom, et al.
Jeffrey S. Trachtman, Norman C. Simon, Jason M. Moff, Kurt M. Denk, and Jessica N. Witte, Kramer Levin Naftalis & Frankel LLP, New York, New York, for Amici Curiae Bishops of the Episcopal Church in Idaho, General Synod of the United Church of Christ, Mormons for Equality, Reconstructionist Rabbinical Association, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Union for Reform Judaism, Unitarian Universalist Association, Affirmation, Covenant Network of Presbyterians, Methodist Federation for Social Action, More Light Presbyterians, Presbyterian Welcome, Reconciling Ministries Network, Reconcilingworks: Lutherans for Full Participation, Religious Institute, Inc., and 38 Faith Leaders in the State of Idaho
John C. Eastman, Center for Constitutional Jurisprudence, Chapman University, Orange, California; D. John Sauer, Clark & Sauer, LLC, for Amici Curiae Center for Constitutional Jurisprudence and 27 Scholars of Federalism and Judicial Restraint
Lynn D. Wardle, J. Reuben Clark Law School, Provo, Utah; Stephen Kent Ehat, Lindon, Utah, for Amici Curiae Center for Urban Renewal and Education,
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Coalition of African-American Pastors USA, and Frederick Douglass Foundation, Inc.
Suzanne B. Goldberg, Columbia Law School Sexuality and Gender Law Clinic, New York, New York, for Amicus Curiae Columbia Law School Sexuality and Gender Law Clinic
Holly Carmichael, San Jose, California, for Amicus Curiae Concerned Women for America
Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, D.C., for Amicus Curiae Eagle Forum Education and Legal Defense Fund
Katherine Keating and Robert Esposito, Bryan Cave LLP, San Francisco, California, for Amicus Curiae Family Equality Council and Colage
K. Lee Marshall, Katherine Keating, Tracy Talbot, and Robert Esposito, Bryan Cave LLP, San Francisco, California, for Amici Curiae Family Equality Council, Equality Hawaii Foundation, We Are Family, and Colage
Joanna L. Grossman, Hofstra Law School, Hempstead, New York; Marjory A. Gentry, Arnold & Porter LLP, San Francisco, California, for Amici Curiae Family Law and Conflict of Laws Professors
Joan Heifetz Hollinger, Berkeley School of Law, Berkeley, California; Courtney Joslin, UC Davis School of Law, Davis, California; Laura W. Brill and Meaghan L. Field, Kendall Brill & Klieger LLP, Los Angeles, California, for Amici Curiae Family Law Professors
Elizabeth L. Deeley, Sarah E. Piepmeier, and Raghay Krishnapriyan, Kirkland & Ellis LLP, for Amicus Curiae Gary J. Gates
Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, California, for Amicus Curiae Gary J. Gates
Mary L. Bonauto, Gay & Lesbian Advocates & Defenders, Boston, Massachusetts, for Amicus Curiae Gay & Lesbian Advocates & Defenders
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Charles S. Limandri, Freedom of Conscience Defense Fund, Rancho Santa Fe, California, for Amici Curiae Robert P. George, Sherif Girgis, and Ryan T. Anderson
Nicholas M. O’Donnell, Sullivan & Worcester LLP, Boston, Massachusetts, for Amicus Curiae GLMA - Health Professionals Advancing LGBT Equality
Lynn D. Wardle, Brigham Young University Law School, Provo, Utah, for Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll
Rita F. Lin and Sara Bartel, Morrison & Foerster LLP, San Francisco, California, for Amici Curiae Joan Heifetz Hollinger, Courtney Joslin, and 63 Other Family Law Professors
Catherine E. Stetson, Erica Knievel-Songer, Mary Helen Wimberly, Madeline H. Gitomer, Jenna N. Jacobson, Hogan Lovells US LLP, Washington D.C., for Amicus Curiae Historians of Antigay Discrimination
Aderson Bellegarde Francois, Howard University School of Law Civil Rights Clinic, Washington, D.C.; Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, California, for Amicus Curiae Howard University School of Law Civil Rights Clinic
Gregory F. Zoeller, Attorney General, and Thomas M. Fisher, Solicitor General, Office of the Attorney General of Indiana, Indianapolis, Indiana; Luther Strange, Attorney General, State of Alabama; Michael C. Geraghty, Attorney General, State of Alaska; Thomas C. Horne, Attorney General, State of Arizona; John Suthers, Attorney General, State of Colorado; Lawrence G. Wasden, Attorney General, State of Idaho; Timothy C. Fox, Attorney General, State of Montana; Jon Bruning, Attorney General, State of Nebraska; E. Scott Pruitt, Attorney General, State of Oklahoma; Alan Wilson, Attorney General, State of South Carolina; Sean Reyes, Attorney General, State of Utah, for Amici Curiae States of Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma, South Carolina and Utah
Robert H. Tyler and Jennifer L. Bursch, Advocates for Faith and Freedom, Murrieta, California, for Amicus Curiae Institute for Marriage and Public Policy
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G. David Carter, Joseph P. Bowser, and Hunter T. Carter, Arent Fox LLP, Washington, D.C., for Amici Curiae Law Enforcement Officers, First Responders, and Organizations
Stephen M. Crampton, Mary E. McAlister, and Mandi D. Campbell, Liberty Counsel, Lynchburg, Virginia; Mathew D. Staver and Anita L. Staver, Liberty Counsel, Orlando, Florida, for Amici Curiae Liberty Counsel
William C. Duncan, Marriage Law Foundation, Lehi, Utah, for Amicus Curiae Marriage Law Foundation
Martha Coakley, Attorney General, Genevieve C. Nadeau, Assistant Attorney General, and Jonathan B. Miller, Assistant Attorney General, Commonwealth of Massachusetts, Office of the Attorney General, Boston, Massachusetts; Kamala D. Harris, Attorney General of California, Sacramento, California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut; Joseph R. Biden, III, Attorney General of Delaware, Department of Justice, Wilmington, Delaware; Irvin B. Nathan, Attorney General for the District of Columbia, Washington, District of Columbia; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois; Tom Miller, Attorney General of Iowa, Des Moines, Iowa; Janet T. Mills, Attorney General of Maine, Augusta, Maine; Douglas F. Gansler, Attorney General of Maryland, Baltimore, Maryland; Joseph A. Foster, Attorney General of New Hampshire, Concord, New Hampshire; Gary K. King, Attorney General of New Mexico, Santa Fe, New Mexico; Eric T. Schneiderman, Attorney General of New York, New York, New York; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon; William H. Sorrell, Attorney General of Vermont, Montpelier, Vermont; Robert W. Ferguson, Attorney General of Washington, Olympia, Washington, for Amici Curiae Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington
Gerard V. Bradley, Notre Dame Law School, Notre Dame, Indiana, for Amicus Curiae Dr. Paul McHugh
Sherrilyn Ifill, Christina A. Swarns, Natasha M. Korgaonkar, and Ria Tabacco Mar, NAACP Legal Defense & Educational Fund, Inc., New York, New York, for
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Amicus Curiae NAACP Legal Defense & Educational Fund, Inc.
Bruce A. Wessel, Moez M. Kaba, C. Mitchell Hendy, and Brian Eggleston, Irell & Manella LLP, Los Angeles, California, for Amici Curiae National and Western States Women’s Rights Organizations
Marcia D. Greenberger and Emily J. Martin, National Women’s Law Center, Washington, D.C., for Amici Curiae National Women’s Law Center, Gender Justice, Legal Momentum, Legal Voice, National Association of Women Lawyers, National Partnership for Women & Families, Southwest Women’s Law Center, Women Lawyers Association of Michigan, Women’s Law Project, and Professors of Law Associated with the Williams Institute
Marcia D. Greenberger, Emily J. Martin, and Cortelyou C. Kenney, National Women’s Law Center, Washington, D.C.; David C. Codell, Williams Institute, UCLA School of Law, Los Angeles, California, for Amici Curiae National Women’s Law Center, Williams Institute Scholars of Sexual Orientation and Gender Law, and Women’s Legal Groups
Abbe David Lowell and Christopher D. Man, Chadbourne & Parke LLP, Washington, D.C., for Amici Curiae Outserve - SLDN and American Military Partner Association
Kevin T. Snider, Pacific Justice Institute, Sacramento, California, for Amicus Curiae Pacific Justice Institute
Jiyun Cameron Lee and Andrew J. Davis, Folger Levin LLP, San Francisco, California, for Amicus Curiae Parents, Families and Friends of Lesbians and Gays, Inc.
Mark W. Mosier and Jennifer Schwartz, Covington & Burling LLP, Washington, D.C., for Amici Curiae Political Science Professors
Abram J. Pafford, Pafford Lawrence & Childress PLLC, Washington, D.C., for Amici Curiae Professors of Social Science
David Alan Robinson, North Haven, Connecticut, for Amicus Curiae David Alan
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Robinson
Alexander Dushku, R. Shawn Gunnarson, and Justin W. Starr, Kifton & McConkie, Salt Lake City, Utah, for Amici Curiae United States Conference of Catholic Bishops, National Association of Evangelicals, Church of Jesus Christ of Latter-Day Saints, Ethics & Religious Liberty Commission of the Southern Baptist Convention, and Lutheran Church - Missouri Synod

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FILED

Latta, et al. v. Otter, et al. Nos. 14-35420 & 14-35421 Sevcik, et al. v. Sandoval, et al. No. 12-17688

OCT 07 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

REINHARDT, Circuit Judge, concurring:

I, of course, concur without reservation in the opinion of the Court. I write

separately only to add that I would also hold that the fundamental right to

marriage, repeatedly recognized by the Supreme Court, in cases such as Loving v.

Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner

v. Safley, 482 U.S. 78 (1987), is properly understood as including the right to

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

it does to opposite-sex marriage. As a result, I would hold that heightened scrutiny

is appropriate for an additional reason: laws abridging fundamental rights are

subject to strict scrutiny, and are invalid unless there is a “compelling state

interest” which they are “narrowly tailored” to serve. United States v. Juvenile

Male, 670 F.3d 999, 1012 (9th Cir. 2012) (citing Reno v. Flores, 507 U.S. 292, 302

(1993)), cert. denied, 133 S. Ct. 234 (2012)). Because the inadequacy of the states’

justifications has been thoroughly addressed, I write only to explain my view that

the same-sex marriage bans invalidated here also implicate plaintiffs’ substantive

due process rights.

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Like all fundamental rights claims, this one turns on how we describe the right. Plaintiffs and defendants agree that there is a fundamental right to marry, but defendants insist that this right consists only of the right to marry an individual of the opposite sex. In Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997), the Supreme Court explained “that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Our articulation of such fundamental rights must, we are told, be “carefully formulat[ed].” Id. at 722 (citations and quotation marks omitted).
However, “careful” does not mean “cramped.” Our task is to determine the scope of the fundamental right to marry as inferred from the principles set forth by the Supreme Court in its prior cases. Turner held that prisoners who had no children and no conjugal visits during which to conceive them—people who could not be biological parents—had a due process right to marry. 482 U.S. at 94–97. Zablocki held that fathers with outstanding child support obligations—people who were, at least according to adjudications in family court, unable to adequately provide for existing children—had a due process right to marry. 434 U.S. at 383–87.

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In each case, the Supreme Court referred to—and considered the historical roots of—the general right of people to marry, rather than a narrower right defined in terms of those who sought the ability to exercise it. These cases rejected statusbased restrictions on marriage not by considering whether to recognize a new, narrow fundamental right (i.e., the right of prisoners to marry or the right of fathers with unpaid child support obligations to marry) or determining whether the class of people at issue enjoyed the right as it had previously been defined, but rather by deciding whether there existed a sufficiently compelling justification for depriving plaintiffs of the right they, as people, possessed.1 See id. at 384 (“[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals.”).
The third and oldest case in the fundamental right to marry trilogy, Loving, is also the most directly on point. That case held that Virginia’s anti-miscegenation laws, which prohibited and penalized interracial marriages, violated the Fourteenth Amendment’s Equal Protection and Due Process Clauses. 388 U.S. at 2–6. In a
1Turner and Zablocki illustrate another important point, pertinent to the adequacy of defendants’ justifications for curtailing the right. The first of these cases involved plaintiffs whom the state was entitled to prevent from procreating, and the second involved those who were unable to support existing offspring financially. If the fundamental right to marry extends to them, it certainly cannot be limited only to those who can procreate or to those who, in the eyes of the state, would form part of an ideal parenting unit.
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rhetorical stroke as uncomprehending as it is unavailing, defendants contend that lesbians and gays are not denied the freedom to marry by virtue of the denial of their right to marry individuals of the same sex, as they are still free to marry individuals of the opposite sex. Defendants assert that their same-sex marriage bans are unlike the laws in Turner and Zablocki because they do not categorically bar people with a particular characteristic from marrying, but rather limit whom lesbians and gays, and all other persons, may marry. However, Loving itself squarely rebuts this argument. Mildred Jeter and Richard Loving were not barred from marriage altogether. Jeter was perfectly free to marry a black person, and Loving was perfectly free to marry a white person. They were each denied the freedom, however, to marry the person whom they chose—the other. The case of lesbians and gays is indistinguishable. A limitation on the right to marry another person, whether on account of race or for any other reason, is a limitation on the right to marry.2

2Defendants are apparently concerned that if we recognize a fundamental right to marry the person of one’s choice, this conclusion will necessarily lead to the invalidation of bans on incest, polygamy, and child marriage. However, fundamental rights may sometimes permissibly be abridged: when the laws at issue further compelling state interests, to which they are narrowly tailored. Although such claims are not before us, it is not difficult to envision that states could proffer substantially more compelling justifications for such laws than have been put forward in support of the same-sex marriage bans at issue here.
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Defendants urge that “man-woman” and “genderless” marriage are mutually exclusive, and that permitting the latter will “likely destroy[]” the former. Quite the opposite is true. Loving teaches that Virginia’s anti-miscegenation laws did not simply “deprive the Lovings of liberty without due process of law.” 388 U.S. at 12. They did far worse; as the Court declared, the laws also “surely . . . deprive[d] all the State’s citizens of liberty without due process of law.” Id. (emphasis added). When Virginia told Virginians that they were not free to marry the one they loved if that person was of a different race, it so grievously constrained their “freedom of choice to marry” that it violated the constitutional rights even of those citizens who did not themselves wish to enter interracial marriages or who were already married to a person of the same race. Id. When Idaho tells Idahoans or Nevada tells Nevadans that they are not free to marry the one they love if that person is of the same sex, it interferes with the universal right of all the State’s citizens—whatever their sexual orientation—to “control their destiny.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).
To define the right to marry narrowly, as the right to marry someone of the opposite sex, would be to make the same error committed by the majority in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), which considered whether there was a “fundamental right to engage in homosexual sodomy.” This description of
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the right at issue “fail[ed] to appreciate the extent of the liberty at stake,” the Court stated in Lawrence, 539 U.S. at 567. Lawrence rejected as wrongheaded the question whether “homosexuals” have certain fundamental rights; “persons”—of whatever orientation—are rights-holders. See id. Fundamental rights defined with respect to the subset of people who hold them are fundamental rights misdefined. The question before us is not whether lesbians and gays have a fundamental right to marry a person of the same sex; it is whether a person has a fundamental right to marry, to enter into “the most important relation in life,” Maynard v. Hill, 125 U.S. 190, 205 (1888), with the one he or she loves. Once the question is properly defined, the answer follows ineluctably: yes.
Historically, societies have strictly regulated intimacy and thereby oppressed those whose personal associations, such as committed same-sex relationships, were, though harmful to no one, disfavored. Human intimacy, like “liberty[,] [has] manifold possibilities.” Lawrence, 539 U.S. at 578. Although “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[,] [a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Id. at 578-79.

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We, as judges, deal so often with laws that confine and constrain. Yet our core legal instrument comprehends the rights of all people, regardless of sexual orientation, to love and to marry the individuals they choose. It demands not merely toleration; when a state is in the business of marriage, it must affirm the love and commitment of same-sex couples in equal measure. Recognizing that right dignifies them; in so doing, we dignify our Constitution.

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FILED

Latta, et al. v. Otter, et al. Nos. 14-35420 & 14-35421 Sevcik, et al. v. Sandoval, et al. No. 12-17688

OCT 07 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

BERZON, Circuit Judge, concurring:

I agree that Idaho and Nevada’s same-sex marriage prohibitions fail because

they discriminate on the basis of sexual orientation and I join in the Opinion of the

Court. I write separately because I am persuaded that Idaho and Nevada’s same-

sex marriage bans are also unconstitutional for another reason: They are

classifications on the basis of gender that do not survive the level of scrutiny

applicable to such classifications.

I. The Same-Sex Marriage Prohibitions Facially Classify on the Basis of Gender

“[S]tatutory classifications that distinguish between males and females are

‘subject to scrutiny under the Equal Protection Clause.’” Craig v. Boren, 429 U.S.

190, 197 (1976) (quoting Reed v. Reed, 404 U.S. 71, 75 (1971)). “To withstand

constitutional challenge, . . . classifications by gender must serve important

governmental objectives and must be substantially related to achievement of those

objectives.” Id. “The burden of justification” the state shoulders under this

intermediate level of scrutiny is “demanding”: the state must convince the

reviewing court that the law’s “proffered justification” for the gender classification

“is ‘exceedingly persuasive.’” United States v. Virginia, 518 U.S. 515, 533 (1996)

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(“VMI”). Idaho and Nevada’s same-sex marriage bans discriminate on the basis of sex and so are invalid unless they meet this “demanding” standard.
A. Idaho and Nevada’s same-sex marriage prohibitions facially classify on the basis of sex.1 Only women may marry men, and only men may marry women.2 Susan Latta may not marry her partner Traci Ehlers for the sole reason that Latta is a woman; Latta could marry Ehlers if Latta were a man. Theodore Small may not marry his partner Antioco Carillo for the sole reason that Small is a man; Small could marry Carillo if Small were a woman. But for their gender, plaintiffs would be able to marry the partners of their choice. Their rights under the states’ bans on same-sex marriage are wholly determined by their sex.
A law that facially dictates that a man may do X while a woman may not, or

1 “Sex” and “gender” are not necessarily coextensive concepts; the meanings of these terms and the difference between them are highly contested. See, e.g., Katherine Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev 1 (1995). For present purposes, I will use the terms “sex” and “gender” interchangeably, to denote the social and legal categorization of people into the generally recognized classes of “men” and “women.”
2 Idaho Const. art. III § 38 (“A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”); Idaho Code § 32-201(1) (“Marriage is a personal relation arising out of a civil contract between a man and a woman . . . .”); Nev. Const. art. I, § 21 (“Only a marriage between a male and female person shall be recognized and given effect in this state.”); Nev. Rev. Stat. § 122.020 (“[A] male and a female person . . . may be joined in marriage.”).
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vice versa, constitutes, without more, a gender classification. “[T]he absence of a
malevolent motive does not convert a facially discriminatory policy into a neutral
policy with a discriminatory effect. Whether [a policy] involves disparate treatment
through explicit facial discrimination does not depend on why the [defendant]
discriminates but rather on the explicit terms of the discrimination.” UAW v.
Johnson Controls, Inc., 499 U.S. 187, 199 (1991).3 Thus, plaintiffs challenging
3 UAW v. Johnson Controls was a case brought under Title VII of the Civil Rights act of 1964, which, inter alia, bans employment policies that discriminate on the basis of sex. Title VII provides it is
an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; (2) to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a). The Supreme Court has “analog[ized]” to its decisions interpreting what constitutes discrimination “because of” a protected status under Title VII in analyzing Fourteenth Amendment equal protection claims and vice versa. See, e.g., Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976), superseded by statute on other grounds as recognized in Johnson Controls, 499 U.S. at 219 (“While there is no necessary inference that Congress . . . intended to incorporate into Title VII the concepts of discrimination which have evolved from court decisions construing the Equal Protection Clause of the Fourteenth Amendment, the similarities between the congressional language and some of those decisions surely indicate that the latter are a useful starting point in interpreting the former.”). As the Court has explained, “[p]articularly in the case of defining the
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policies that facially discriminate on the basis of sex need not separately show
either “intent” or “purpose” to discriminate. Personnel Adm’r of Massachusetts v.
Feeney, 442 U.S. 256, 277–78 (1979).
Some examples help to illuminate these fundamental precepts. Surely, a law
providing that women may enter into business contracts only with other women
would classify on the basis of gender. And that would be so whether or not men
were similarly restricted to entering into business relationships only with other
men.
Likewise, a prison regulation that requires correctional officers be the same
sex as the inmates in a prison “explicitly discriminates . . . on the basis of . . . sex.”
Dothard v. Rawlinson, 433 U.S. 321, 332, 332 n. 16 (1977). Again, that is so
whether women alone are affected or whether men are similarly limited to serving only male prisoners.4
term ‘discrimination,’” Title VII must be interpreted consistently with Fourteenth Amendment equal protection principles, because Congress does not define “discrimination” in Title VII. See Gilbert, 429 U.S. at 133; see also 42 U.S.C. § 2000e. I therefore rely on Title VII cases throughout this Opinion for the limited purpose of determining whether a particular classification is or is not sex-based.
4 Dothard in fact dealt with a regulation that applied equally to men and women. See 433 U.S. at 332 n. 16 (“By its terms [the regulation at issue] applies to contact positions in both male and female institutions.”); see also id. at 325 n. 6. Dothard ultimately upheld the sex-based discrimination at issue under Title VII’s “bona fide occupational qualification” exception, 42 U.S.C. § 2000e-2(e), because of the especially violent, sexually charged nature of the particular prisons involved
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Further, it can make no difference to the existence of a sex-based classification whether the challenged law imposes gender homogeneity, as in the business partner example or Dothard, or gender heterogeneity. Either way, the classification is one that limits the affected individuals’ opportunities based on their sex, as compared to the sex of the other people involved in the arrangement or transaction.
As Justice Johnson of the Vermont Supreme Court noted, the same-sex marriage prohibitions, if anything, classify more obviously on the basis of sex than they do on the basis of sexual orientation: “A woman is denied the right to marry another woman because her would-be partner is a woman, not because one or both are lesbians. . . . [S]exual orientation does not appear as a qualification for marriage” under these laws; sex does. Baker v. State, 744 A.2d 864, 905 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part).
The statutes’ gender focus is also borne out by the experience of one of the Nevada plaintiff couples:
When Karen Goody and Karen Vibe went to the Washoe County Marriage
in that case, and because the regulation applied only to correctional officers in “contact positions” (i.e. working in close physical proximity to inmates) in maximum security institutions. See Dothard, 433 U.S. at 336–37 (internal quotation marks omitted). For present purposes, the salient holding is that the same-sex restriction was overtly a sex-based classification, even if it could be justified by a sufficiently strong BFOQ showing. Id. at 332–33.
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Bureau to obtain a marriage license, the security officer asked, “Do you have a man with you?” When Karen Vibe said they did not, and explained that she wished to marry Karen Goody, she was told she could not even obtain or complete a marriage license application . . . [because] “[t]wo women can’t apply” . . . [and] marriage is “between a man and a woman.”
Notably, Goody and Vibe were not asked about their sexual orientation; Vibe was
told she was being excluded because of her gender and the gender of her partner.
Of course, the reason Vibe wants to marry Goody, one presumes, is due in
part to their sexual orientations.5 But that does not mean the classification at issue
is not sex-based. Dothard also involved a facial sex classification intertwined with
presumptions about sexual orientation, in that instance heterosexuality. The
Supreme Court in Dothard agreed that the state was justified in permitting only
male officers to guard male inmates, because there was “a real risk that other
inmates, deprived of a normal heterosexual environment, would assault women
guards because they were women.” 433 U.S. at 335. Thus, Dothard’s reasoning
confirms the obvious: a statute that imposes a sex qualification, whether for a
marriage license or a job application, is sex discrimination, pure and simple, even
5 The need for such a presumption, as to a factor that does not appear on the face of the same-sex marriage bans, suggests that the gender discrimination analysis is, if anything, a closer fit to the problem before us than the sexual orientation rubric. While the same-sex marriage prohibitions obviously operate to the disadvantage of the people likely to wish to marry someone of the same gender—i.e. lesbians, gay men, bisexuals, and otherwise-identified persons with same-sex attraction—the individuals’ actual orientation is irrelevant to the application of the laws.
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where assumptions about sexual orientation are also at play. Lawrence v. Texas, 539 U.S. 558 (2003) also underscores why the
continuation of the same-sex marriage prohibitions today is quite obviously about gender. Lawrence held that it violates due process for states to criminalize consensual, noncommercial same-sex sexual activity that occurs in private between two unrelated adults. See id. at 578. After Lawrence, then, the continuation of the same-sex marriage bans necessarily turns on the gender identity of the spouses, not the sexual activity they may engage in. To attempt to bar that activity would be unconstitutional. See id. The Nevada intervenors recognize as much, noting that Lawrence “differentiates between the fundamental right of gay men and lesbians to enter an intimate relationship, on one hand, and, on the other hand, the right to marry a member of one’s own sex.” The “right to marry a member of one’s own sex” expressly turns on sex.
B. In concluding that these laws facially classify on the basis of gender, it is of no moment that the prohibitions “treat men as a class and women as a class equally” and in that sense give preference to neither gender, as the defendants6 fervently maintain. That argument revives the long-discredited reasoning of Pace
6 Following the style of the Opinion of the Court, see Op. Ct. at 9 n. 4, I will refer throughout this Opinion to arguments advanced generally by “defendants,” meaning the parties that continue actively to argue in defense of the laws, i.e. the Idaho defendants and the Nevada intervenors.
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v. Alabama, which upheld an anti-miscegenation statute on the ground that “[t]he punishment of each offending person, whether white or black, is the same.” 106 U.S. 583, 585 (1883), overruled by McLaughlin v. Florida, 379 U.S. 184 (1964). Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Board of Education, 347 U.S. 483 (1954), similarly upheld racial segregation on the reasoning that segregation laws applied equally to black and white citizens.
This narrow view of the reach of the impermissible classification concept is, of course, no longer the law after Brown. Loving v. Virginia reinforced the postBrown understanding of impermissible classification under the Fourteenth Amendment in a context directly analogous to the present one. Addressing the constitutionality of anti-miscegenation laws banning interracial marriage, Loving firmly “reject[ed] the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discrimination.” 388 U.S. 1, 8 (1967). As Loving explained, “an even-handed state purpose” can still be “repugnant to the Fourteenth Amendment,” id. at 11 n. 11, because restricting individuals’ rights, choices, or opportunities “solely because of racial classifications violates the central meaning of the Equal Protection Clause” even if members of all racial groups are identically restricted with regard to interracial
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marriage. Id. at 12. “Judicial inquiry under the Equal Protection Clause . . . does not end with a showing of equal application among the members of the class defined by the legislation.” McLaughlin, 379 U.S. 184 at 191.
If more is needed to confirm that the defendants’ “equal application” theory has no force, there is more—cases decided both before and after Loving. Shelley v. Kraemer, for example, rejected the argument that racially restrictive covenants were constitutional because they would be enforced equally against both black and white buyers. Shelley v. Kraemer 334 U.S. 1, 21–22 (1948). In so holding, Shelley explained: “The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.” Id. at 22. Shelley also observed that “a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons, and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons” violated the Fourteenth Amendment despite its equal application to both black and white occupants. See id. at 11 (describing Buchanan v. Warley, 245 U.S. 60 (1917)).
The same individual rights analysis applies in the context of gender classifications. Holding unconstitutional peremptory strikes on the basis of gender,
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J.E.B. explained that “individual jurors themselves have a right to nondiscriminatory jury selection procedures . . . . [T]his right extends to both men and women.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 140–41 (1994). “The neutral phrasing of the Equal Protection Clause, extending its guarantee to ‘any person,’ reveals its concern with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question).” Id. at 152 (Kennedy, J., concurring).
City of Los Angeles, Dep’t of Water & Power v. Manhart further explains why, even in “the absence of a discriminatory effect on women as a class” or on men as a class, the same-sex marriage bars constitute gender classifications, because they “discriminate against individual[s] . . . because of their sex.” 435 U.S. 702, 716 (1978) (emphasis added). In that case, the parties recognized that women, as a class, lived longer than men. Id. at 707–09. The defendant Department argued that this fact justified a policy that facially required all women to contribute larger monthly sums to their retirement plans than men, out of fairness to men as a class, who otherwise would subsidize women as a class. Id. at 708–09. Manhart rejected this justification for the sex distinction, explaining that the relevant focus must be “on fairness to individuals rather than fairness to classes,” and held, accordingly, that the policy was unquestionably sex
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discriminatory. Id. at 709, 711.
Under all these precedents, it is simply irrelevant that the same-sex marriage
prohibitions privilege neither gender as a whole or on average. Laws that strip
individuals of their rights or restrict personal choices or opportunities solely on the
basis of the individuals’ gender are sex discriminatory and must be subjected to
intermediate scrutiny. See J.E.B., 511 U.S. at 140–42. Accordingly, I would hold
that Idaho and Nevada’s same-sex marriage prohibitions facially classify on the
basis of gender, and that the “equal application” of these laws to men and women
as a class does not remove them from intermediate scrutiny.7
7 Several courts have so held. See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n. 4 (N.D. Cal. 2012) (“Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, DOMA would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex.”), initial hearing en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048 (9th Cir. 2013) ; In re Levenson, 560 F.3d 1145, 1147 (9th Cir. EDR 2009) (Reinhardt, J., presiding) (“If [Levenson’s husband] were female, or if Levenson himself were female, Levenson would be able to add [his husband] as a beneficiary. Thus, the denial of benefits at issue here was sex-based and can be understood as a violation of the . . . prohibition of sex discrimination.”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010) (“Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex.”), 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); Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993) (plurality op.) (a same-sex marriage bar, “on its face, discriminates based on sex”); Baker, 744 A.2d at 905 (Johnson, J., concurring in part and dissenting in part) (a same-sex marriage bar presents “a
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C. The same-sex marriage prohibitions also constitute sex discrimination for the alternative reason that they impermissibly prescribe different treatment for similarly situated subgroups of men and women. That is, the same-sex marriage laws treat the subgroup of men who wish to marry men less favorably than the otherwise similarly situated subgroup of women who want to marry men. And the laws treat the subgroup of women who want to marry women less favorably than the subgroup of otherwise identically situated men who want to marry women.
The Supreme Court has confirmed that such differential treatment of similarly-situated sex-defined subgroups also constitutes impermissible sex discrimination. Phillips v. Martin Marietta Corp., for example, held that an employer’s refusal to hire women with preschool-age children, while employing men with children the same age, was facial sex discrimination, even though all men, and all women without preschool-age children, were treated identically. See 400 U.S. 542, 543–44 (1971) (per curiam). And the Seventh Circuit held an airline’s policy requiring female flight attendants, but not male flight attendants, to be unmarried was discrimination based on sex, relying on Phillips and explaining that a classification that affects only some members of one gender is still sex discrimination if similarly situated members of the other gender are not treated the
straightforward case of sex discrimination” because it “establish[es] a classification based on sex”).
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same way. “The effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class.” Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971).
Of those individuals who seek to obtain the state-created benefits and obligations of legal marriage to a woman, men may do so but women may not. Thus, at the subclass level—the level that takes into account the similar situations of affected individuals—women as a group and men as a group are treated differently. For this reason as well I would hold that Idaho and Nevada’s same-sex marriage prohibitions facially classify on the basis of gender. They must be reviewed under intermediate scrutiny.
D. One further point bears mention. The defendants note that the Supreme Court summarily rejected an equal protection challenge to a same-sex marriage bar in Baker v. Nelson, 409 U.S. 810 (1972), holding there was no substantial federal question presented in that case. But the Court did not clarify that sex-based classifications receive intermediate scrutiny until 1976. See Craig, 429 U.S. at 221, 218 (Rehnquist, J., dissenting) (describing the level of review prescribed by the majority as “new,” and as “an elevated or ‘intermediate’ level scrutiny”). As this fundamental doctrinal change postdates Baker, Baker is no longer binding as to the sex discrimination analysis, just as it is no longer binding as to the sexual
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orientation discrimination analysis. See Op. Ct. at 9–11. II. Same-Sex Marriage Bars Are Based in Gender Stereotypes Idaho and Nevada’s same sex marriage laws not only classify on the basis of
sex but also, implicitly and explicitly, draw on “archaic and stereotypic notions” about the purportedly distinctive roles and abilities of men and women. Eradicating the legal impact of such stereotypes has been a central concern of constitutional sex-discrimination jurisprudence for the last several decades. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982). The samesex marriage bans thus share a key characteristic with many other sex-based classifications, one that underlay the Court’s adoption of intermediate scrutiny for such classifications.
The Supreme Court has consistently emphasized that “gender-based classifications . . . may be reflective of ‘archaic and overbroad’ generalizations about gender, or based on ‘outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas.’” J.E.B., 511 U.S. at 135 (quoting Schlesinger v. Ballard, 419 U.S. 498, 506–07 (1975); Craig, 429 U.S. at 198–99) (some internal quotation marks omitted). Laws that rest on nothing more than “the ‘baggage of sexual stereotypes,’ that presume[] the father has the ‘primary responsibility to provide a home and its essentials,’ while the
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mother is the ‘center of home and family life’” have been declared constitutionally invalid time after time. Califano v. Westcott, 443 U.S. 76, 89 (1979) (quoting Orr v. Orr, 440 U.S. 268, 283 (1979); Stanton v. Stanton, 421 U.S. 7, 10 (1975); Taylor v. Louisiana, 419 U.S. 522 (1975)). Moreover, “gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization.” J.E.B., 511 U.S. at 139 n. 11. And hostility toward nonconformance with gender stereotypes also constitutes impermissible gender discrimination. See generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); accord Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (harassment against a person for “failure to conform to [sex] stereotypes” is gender-based discrimination) (internal quotation marks omitted).
The notion underlying the Supreme Court’s anti-stereotyping doctrine in both Fourteenth Amendment and Title VII cases is simple, but compelling: “[n]obody should be forced into a predetermined role on account of sex,” or punished for failing to conform to prescriptive expectations of what behavior is appropriate for one’s gender. See Ruth Bader Ginsburg, Gender and the Constitution, 44 U. Cin. L. Rev. 1, 1 (1975). In other words, laws that give effect to “pervasive sex-role stereotype[s]” about the behavior appropriate for men and
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women are damaging because they restrict individual choices by punishing those men and women who do not fit the stereotyped mold. Nev. Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 731, 738 (2003).
Idaho and Nevada’s same-sex marriage prohibitions, as the justifications advanced for those prohibitions in this Court demonstrate, patently draw on “archaic and stereotypic notions” about gender. Hogan, 458 U.S. at 725. These prohibitions, the defendants have emphatically argued, communicate the state’s view of what is both “normal” and preferable with regard to the romantic preferences, relationship roles, and parenting capacities of men and women. By doing so, the laws enforce the state’s view that men and women “naturally” behave differently from one another in marriage and as parents.
The defendants, for example, assert that “gender diversity or complementarity among parents . . . provides important benefits” to children, because “mothers and fathers tend on average to parent differently and thus make unique contributions to the child’s overall development.” The defendants similarly assert that “[t]he man-woman meaning at the core of the marriage institution, reinforced by the law, has always recognized, valorized, and made normative the roles of ‘mother’ and ‘father’ and their uniting, complementary roles in raising their offspring.”
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Viewed through the prism of the Supreme Court’s contemporary antistereotyping sex discrimination doctrine, these proferred justifications simply underscore that the same-sex marriage prohibitions discriminate on the basis of sex, not only in their form—which, as I have said, is sufficient in itself—but also in reviving the very infirmities that led the Supreme Court to adopt an intermediate scrutiny standard for sex classifications in the first place. I so conclude for two, somewhat independent, reasons.
A. First, and more obviously, the gender stereotyping at the core of the same-sex marriage prohibitions clarifies that those laws affect men and women in basically the same way as, not in a fundamentally different manner from, a wide range of laws and policies that have been viewed consistently as discrimination based on sex. As has been repeated again and again, legislating on the basis of such stereotypes limits, and is meant to limit, the choices men and women make about the trajectory of their own lives, choices about work, parenting, dress, driving—and yes, marriage. This focus in modern sex discrimination law on the preservation of the ability freely to make individual life choices regardless of one’s sex confirms that sex discrimination operates at, and must be justified at, the level of individuals, not at the broad class level of all men and women. Because the same-sex marriage prohibitions restrict individuals’ choices on the basis of sex,
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they discriminate based on sex for purposes of constitutional analysis precisely to the same degree as other statutes that infringe on such choices—whether by distributing benefits or by restricting behavior—on that same ground.
B. Second, the long line of cases since 1971 invalidating 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. Reviewing that transformation, including the role played by constitutional sex discrimination challenges in bringing it about, reveals that the same sex marriage prohibitions seek to preserve an outmoded, sex-role-based vision of the marriage institution, and in that sense as well raise the very concerns that gave rise to the contemporary constitutional approach to sex discrimination.
(i) 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.”
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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
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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 Family Laws: A Comparative Study of the Family Law of the FortyEight 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
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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, Reconstrucing the Household: Families, Sex, and the Law in the 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,
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“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 Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2125 (1996).
Perhaps unsurprisingly, the profoundly unequal status of men and women in marriage was frequently cited as justification for denying women equal rights in other arenas, including the workplace. “[S]tate courts made clear that the basis, and validity, of such laws lay in stereotypical beliefs about the appropriate roles of men and women.” Hibbs v. Dep’t of Human Res., 273 F.3d 844, 864 (9th Cir. 2001), aff’d sub nom. Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721. Justice Bradley infamously opined in 1887 that “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.” Bradwell, 83 U.S. at 141 (Bradley, J., concurring). On this view, women could be excluded from various professions because “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” Id. Instead, the law gave effect to the belief that “[t]he paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.” Id.
As a result of this separate-spheres regime, “‘[h]istorically, denial or
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curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second.’ . . . Stereotypes about women’s domestic roles [we]re reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men.” Hibbs, 538 U.S. at 736 (quoting the Joint Hearing before the Subcommittee on Labor–Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., at 100 (1986)). Likewise, social benefits programs historically distinguished between men and women on the assumption, grounded in the unequal marital status of men and women, that women were more likely to be homemakers, supported by their working husbands. See, e.g., Califano v. Goldfarb, 430 U.S. 199, 205–07 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 644–45 (1975).
(ii) This asymmetrical regime began to unravel slowly in the nineteenth century, starting with the advent of Married Women’s Property Acts, which allowed women to possess property in their own right for the first time. See, e.g., Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earnings, 1860–1930, 82 Geo. L. Rev. 2127(1994). Eventually, state legislatures revised their laws. Today, of course, a married woman may enter contracts, sue and be sued without her husband’s participation, and own and
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convey property. The advent of “no fault” divorce regimes in the late 1960s and early 1970s made marital dissolutions more common, and legislatures also directed family courts to impose child and spousal support obligations on divorcing couples without regard to gender. See Cott, Public Vows, at 205–06. As these legislative reforms were taking hold, “in 1971 . . . the Court f[ou]nd for the first time that a state law violated the Equal Protection Clause because it arbitrarily discriminated on the basis of sex.” Hibbs, 273 F.3d at 865 (citing Reed, 404 U.S. 71).
This same legal transformation extended into the marital (and nonmarital) bedroom. Spousal rape has been criminalized in all states since 1993. See, e.g., Sarah M. Harless, From the Bedroom to the Courtroom: The Impact of Domestic Violence Law on Marital Rape Victims, 35 Rutgers L.J. 305, 318 (2003). Griswold v. Connecticut, 381 U.S. 479 (1965), held that married couples have a fundamental privacy right to use contraceptives, and Eisenstadt v. Baird, 405 U.S. 438 (1972), later applied equal protection principles to extend this right to single persons. More recently, Lawrence clarified that licit, consensual sexual behavior is no longer confined to marriage, but is protected when it occurs, in private, between two consenting adults, regardless of their gender. See 539 U.S. at 578.
In the child custody context, mothers and fathers today are generally presumed to be equally fit parents. See, e.g., Cott, Public Vows, at 206. Stanley v.
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Illinois, 405 U.S. 645, 658 (1972), for example, held invalid as an equal protection violation a state law that presumed unmarried fathers, but not unwed mothers, unfit as parents. Later, the Supreme Court expressly “reject[ed] . . the claim that . . . [there is] any universal difference between maternal and paternal relations at every phase of a child’s development.” Caban v. Mohammed, 441 U.S. 380, 389 (1979). Likewise, both spouses in a marriage are now entitled to economic support without regard to gender. See Cott, at 206–07. Once again, equal protection adjudication contributed to this change: Orr, 440 U.S. at 278–79, struck down a state statutory scheme imposing alimony obligations on husbands but not wives.
In short, a combination of constitutional sex-discrimination adjudication, legislative changes, and social and cultural transformation has, in a sense, already rendered contemporary marriage “genderless,” to use the phrase favored by the defendants. See Op. Ct. at 12 n. 6. For, as a result of these transformative social, legislative, and doctrinal developments, “[g]ender no longer forms an essential part of marriage; marriage under law is a union of equals.” Perry, 704 F. Supp. 2d at 993. As a result, in the states that currently ban same-sex marriage, the legal norms that currently govern the institution of marriage are “genderless” in every resepect except the requirement that would-be spouses be of different genders. With that exception, Idaho and Nevada’s marriage regimes have jettisoned the
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rigid roles marriage as an institution once prescribed for men and women. In sum, “the sex-based classification contained in the[se] marriage laws,” as the only gender classification that persists in some states’ marriage statutes, is, at best, “a vestige of sex-role stereotyping” that long plagued marital regimes before the modern era, see Baker, 744 A.2d at 906 (Johnson, J., concurring in part and dissenting in part), and, at worst, an attempt to reintroduce gender roles.
The same-sex marriage bars constitute gender discrimination both facially and when recognized, in their historical context, both as resting on sex stereotyping and as a vestige of the sex-based legal rules once imbedded in the institution of marriage. They must be subject to intermediate scrutiny.
III. Idaho and Nevada’s Same-Sex Marriage Prohibitions Fail Under Intermediate Scrutiny For Idaho and Nevada’s same-sex marriage prohibitions to survive the intermediate scrutiny applicable to sex discriminatory laws, it must be shown that these laws “serve important governmental objectives and [are] substantially related to achievement of those objectives.” Craig, 429 U.S. at 197. “The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.” Hogan, 458 U.S. at 725–26.
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In part, the interests advanced by the defendants fail because they are
interests in promoting and enforcing gender stereotyping and so simply are not
legitimate governmental interests. And even if we assume that the other
governmental objectives cited by the defendants are legitimate and important, the
defendants have not shown that the same-sex marriage prohibitions are
substantially related to achieving any of them.
The asserted interests fall into roughly three categories: (1) ensuring children
are raised by parents who provide them with the purported benefits of “gender
complementarity,” also referred to as “gender diversity”; (2) “furthering the
stability of family structures through benefits targeted at couples possessing
biological procreative capacity,” and/or discouraging “motherlessness” or
“fatherlessness in the home”; and (3) promoting a “child-centric” rather than “adult-centric” model of marriage.”8 The defendants insist that “genderless
marriage run[s] counter to . . . [these] norms and ideals,” which is why “man-
8 The defendants also assert that the state has an interest in “accommodating religious freedom and reducing the potential for civic strife.” But, as the Opinion of the Court notes, even if allowing same-sex marriage were likely to lead to religious strife, which is highly doubtful, to say the least, that fact would not justify the denial of equal protection inherent in the gender-based classification of the same-sex marriage bars. See Watson v. City of Memphis, 373 U.S. 526, 535 (1963) (rejecting the city’s proffered justification that delay in desegregating park facilities was necessary to avoid interracial “turmoil,” and explaining “constitutional rights may not be denied simply because of hostility to their assertion or exercise”).
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woman marriage” must be preserved. The Opinion of the Court thoroughly demonstrates why all of these interests
are without merit as justifications for sexual orientation discrimination. I add this brief analysis only to show that the justifications are likewise wholly insufficient under intermediate scrutiny to support the sex-based classifications at the core of these laws.
A. The Idaho defendants assert that the state has an interest in ensuring children have the benefit of parental “gender complementarity.” There must be “space in the law for the distinct role of ‘mother’ [and] the distinct role of ‘father’ and therefore of their united, complementary role in raising offspring,” the Idaho defendants insist. On a slightly different tack, the Nevada intervenors similarly opine that “[s]ociety has long recognized that diversity in education brings a host of benefits to students,” and ask, “[i]f that is true in education, why not in parenting?”
Under the constitutional sex-discrimination jurisprudence of the last forty years, neither of these purported justifications can possibly pass muster as a justification for sex discrimination. Indeed, these justifications are laden with the very “‘baggage of sexual stereotypes’” the Supreme Court has repeatedly disavowed. Califano v. Westcott, 443 U.S. at 89 (quoting Orr, 440 U.S. at 283).
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(i) It should be obvious that the stereotypic notion “that the two sexes bring different talents to the parenting enterprise,” runs directly afoul of the Supreme Court’s repeated disapproval of “generalizations about ‘the way women are,’” VMI, 518 U.S. at 550, or “the way men are,” as a basis for legislation. Just as Orr, 440 U.S. at 279–80, rejected gender-disparate alimony statutes “as effectively announcing the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role,” so a state preference for supposed genderspecific parenting styles cannot serve as a legitimate reason for a sex-based classification.
This conclusion would follow “[e]ven [if] some statistical support can be conjured up for the generalization” that men and women behave differently as marital partners and/or parents, because laws that rely on gendered stereotypes about how men and women behave (or should behave) must be reviewed under intermediate scrutiny. See J.E.B., 511 U.S. at 140. It has even greater force where, as here, the supposed difference in parenting styles lacks reliable empirical support, even “on average.”9 Communicating such archaic gender-role stereotypes to children, or to parents and potential parents, is not a legitimate governmental
9 As one of the plaintiffs’ expert psychologists, Dr. Michael Lamb, explained, “[t]here . . . is no empirical support for the notion that the presence of both male and female role models in the home enhances the adjustment of children and adolescents.”
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interest, much less a substantial one. (ii) The assertion that preserving “man-woman marriage” is permissible
because the state has a substantial interest in promoting “diversity” has no more merit than the “gender complementarity” justification. Diversity is assuredly a weighty interest in the context of public educational institutions, with hundreds or thousands of individuals. But “[t]he goal of community diversity has no place . . . as a requirement of marriage,” which, by law, is a private institution consisting only of two persons. Baker v. State, 744 A.2d at 910 (Johnson, J., concurring in part and dissenting in part). “To begin with, carried to its logical conclusion, the [Nevada intervenors’] rationale could require all marriages to be between [two partners], not just of the opposite sex, but of different races, religions, national origins, and so forth, to promote diversity.” Id. Such an absurd requirement would obviously be unconstitutional. See Loving, 388 U.S. 1.
Moreover, even if it were true that, on average, women and men have different perspectives on some issues because of different life experiences, individual couples are at least as likely to exhibit conformity as diversity of personal characteristics. Sociological research suggests that individual married couples are more likely to be similar to each other in terms of political ideology, educational background, and economic background than they are to be dissimilar;
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despite the common saying that “opposites attract,” in actuality it appears that “like attracts like.” See, e.g., John R. Alford et al., The Politics of Mate Choice, 73:2 J. Politics 362, 376 (2011) (“[S]pousal concordance in the realm of social and political attitudes is extremely high.”); Jeremy Greenwood et al., Marry Your Like: Assortative Mating and Income Inequality (Population Studies Ctr., Univ. Of Penn., Working Paper No. 14-1, at 1, 2014) (Since the 1960s, “the degree of assortative mating [with regard to educational level] has increased.”). Further, there is no evidence of which I am aware that gender is a better predictor of diversity of viewpoints or of parenting styles than other characteristics. Such “gross generalizations that would be deemed impermissible if made on the basis of race [do not become] somehow permissible when made on the basis of gender.” J.E.B., 511 U.S. at 139–40.
In short, the defendants’ asserted state interests in “gender complementarity” and “gender diversity” are not legitimate “important governmental objectives.” See Craig, 429 U.S. at 197. Accordingly, I do not address whether excluding same-sex couples from marriage is substantially related to this goal.
B. The defendants also argue that their states have an important interest in “encouraging marriage between opposite-sex partners” who have biological children, so that those children are raised in an intact marriage rather than in a
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cohabiting or single-parent household. Assuming that this purpose is in fact a “important governmental objective,” the defendants have entirely failed to explain how excluding same-sex couples from marriage is substantially related to achieving the objective of furthering family stability.
(i) I will interpret the asserted state goal in preventing “fatherlessness” and “motherlessness” broadly. That is, I shall assume that the states want to discourage parents from abandoning their children by encouraging dual parenting over single parenting. If the asserted purpose were instead read narrowly, as an interest in ensuring that a child has both a mother and a father in the home (rather than two mothers or two fathers), the justification would amount to the same justification as the asserted interest in “gender complementarity,” and would fail for the same reason. That is, the narrower version of the family stability justification rests on impermissible gender stereotypes about the relative capacities of men and women.
Discouraging single parenting by excluding same-sex couples from marriage is oxymoronic, in the sense that it will likely achieve exactly the opposite of what the states say they seek to accomplish. The defendants’ own evidence suggests that excluding same-sex couples from marriage renders their unions less stable, increasing the risk that the children of those couples will be raised by one parent rather than two.
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True, an increasing number of children are now born and raised outside of marriage, a development that may well be undesirable.10 But that trend began apace well before the advent of same-sex marriage and has been driven by entirely different social and legal developments. The trend can be traced to declines in marriage rates, as well as to the rise in divorce rates after the enactment of “no fault” divorce regimes in the late 1960s and early 1970s. “The proportion of adults who declined to marry at all rose substantially between 1972 and 1998 . . . . [In the same period,] [t]he divorce rate rose more furiously, to equal more than half the marriage rate, portending that at least one in two marriages would end in divorce.” Cott, Public Vows, at 203. The defendants’ assertion that excluding same-sex couples from marriage will do anything to reverse these trends is utterly unsubstantiated.
(ii) The defendants’ appeal to biology is similarly without merit. Their core assertion is that the states have a substantial interest in channeling opposite-sex couples into marriage, so that any accidentally produced children are more likely to be raised in a two-parent household. But the exclusion of same-sex couples from
10 According to the defendants, “[b]etween 1970 and 2005, the proportion of children living with two married parents dropped from 85 percent to 68 percent,” and as of 2008, “[m]ore than a third of all U.S. children [were] . . . born outside of wedlock.” See Benjamin Scafidi, Institute for American Values, The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and All Fifty States 7 (2008).
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the benefits and obligations of state-sanctioned marriage is assuredly not “substantially related,” Craig, 429 U.S. at 197, to achieving that goal.
The reason only opposite-sex couples should be allowed to marry, we are told by the defendants, is that they “possess the unique ability to create new life.” But both same-sex and opposite-sex couples can and do produce children biologically related only to one member of the couple, via assisted reproductive technology or otherwise. And both same-sex and opposite-sex couples adopt children, belying the notion that the two groups necessarily differ as to their biological connection to the children they rear.
More importantly, the defendants “cannot explain how the failure of opposite-sex couples to accept responsibility for the children they create relates at all to the exclusion of same-sex couples from the benefits of marriage.” Baker, 744 A.2d at 911 (Johnson, J., concurring in part and dissenting in part). For one thing, marriage has never been restricted to opposite-sex couples able to procreate; as noted earlier, the spousal relationship, economic and otherwise, has always been understood as a sufficient basis for state approval and regulation. See supra pp. 18–21. For another, to justify sex discrimination, the state must explain why the discriminatory feature is closely related to the state interest. See Hogan, 458 U.S. at 725–26. The states thus would have to explain, without reliance on sex-
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stereotypical notions, why the bans on same-sex marriage advance their interests in inducing more biological parents to marry each other. No such showing has been or can be made.
Biological parents’ inducements to marry will remain exactly what they have always been if same-sex couples can marry. The legal benefits of marriage—taxation, spousal support, inheritance rights, familial rights to make decisions concerning the illness and death of a spouse, and so on—will not change. See, e.g. Turner v. Safley, 482 U.S. 78, 95–96 (1987). The only change will be that now-excluded couples will enjoy the same rights. As the sex-based exclusion of same-sex couples from marrying does not in any way enhance the marriage benefits available to opposite-sex couples, that exclusion does not substantially advance—or advance at all—the state interest in inducing opposite-sex couples to raise their biological children within a stable marriage.
(iii) Finally, the defendants argue that “the traditional marriage institution” or “man-woman marriage . . . is relatively but decidedly more child-centric” than “genderless marriage,” which they insist is “relatively but decidedly more adultcentric.”
These assertions are belied by history. As I have noted, see supra pp. 18–24, “traditional marriage” was in fact quite “adult-centric.” Marriage was,
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above all, an economic arrangement between spouses. See, e.g., Cott, Public Vows, at 54. Whether or not there were children, the law imposed support obligations, inheritance rules, and other rights and burdens upon married men and women. Moreover, couples unwilling or unable to procreate have never been prevented from marrying. Nor was infertility generally recognized as a ground for divorce or annulment under the old fault-based regime, even though sexual impotence was. See, e.g., Vernier, I §50, II § 68.
Further, the social concept of “companionate marriage”—that is, legal marriage for companionship purposes without the possibility of children—has existed since at least the 1920s. See Christina Simmons, Making Marriage Modern: Women’s Sexuality from the Progressive Era to World War II 121 (2009). The Supreme Court called on this concept when it recognized the right of married couples to use contraception in 1965. Griswold, 381 U.S. at 486. Griswold reasoned that, with or without procreation, marriage was “an association for as noble a purpose as any.” Id.
Same-sex marriage is thus not inherently less “child-centric” than “traditional marriage.”11 In both versions, the couple may bear or adopt and raise
11 Moreover, if the assertion that same-sex marriages are more “adultcentric” is meant to imply state disapproval of the sexual activity presumed to occur in same-sex marriages, that disapproval could not be a legitimate state purpose. After Lawrence, the right to engage in same-sex sexual activity is
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children, or not. Finally, a related notion the defendants advance, that allowing same-sex
marriage will render the marriage institution “genderless,” in the sense that gender roles within opposite-sex marriages will be altered, is also ahistorical. As I have explained, those roles have already been profoundly altered by social, legislative, and adjudicative changes. All these changes were adopted toward the end of eliminating the gender-role impositions that previously inhered in the legal regulation of marriage.
In short, the “child-centric”/“adult-centric” distinction is an entirely ephemeral one, at odds with the current realities of marriage as an institution. There is simply no substantial relationship between discouraging an “adult-centric” model of marriage and excluding same-sex couples.
III. Conclusion “Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.” J.E.B., 511 U.S. at 130–31. Idaho and Nevada’s same-sex marriage proscriptions are sex based, and these bans do serve
recognized as a protected liberty interest. See 539 U.S. at 578. 37

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to preserve “invidious, archaic, and overbroad stereotypes” concerning gender roles. The bans therefore must fail as impermissible gender discrimination.
I do not mean, by presenting this alternative analysis, to minimize the fact that the same-sex marriage bans necessarily have their greatest effect on lesbian, gay, bisexual, and transgender individuals. Still, it bears noting that the social exclusion and state discrimination against lesbian, gay, bisexual, and transgender people reflects, in large part, disapproval of their nonconformity with gender-based expectations.12 That is, such individuals are often discriminated against because they are not acting or speaking or dressing as “real men” or “real women” supposedly do. “[S]tereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.” Centola v. Porter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); see also Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994). The same-sex marriage prohibitions, in other words, impose harms on sexual orientation and gender identity minorities precisely because they impose and enforce gender-normative behavior.
I do recognize, however, that the gender classification rubric does not
12 Although not evidently represented among the plaintiff class, transgender people suffer from similar gender stereotyping expectations. See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000) (discrimination on the basis of transgender status is also gender discrimination).
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adequately capture the essence of many of the restrictions targeted at lesbian, gay, and bisexual people. Employment discrimination, housing discrimination, and peremptory strikes on the basis of sexual orientation, to name a few of the exclusions gays, lesbians, and other sexual orientation minorities have faced, are primarily motivated by stereotypes about sexual orientation; by animus against people based on their nonconforming sexual orientation; and by distaste for samesex sexual activity or the perceived personal characteristics of individuals who engage in such behavior. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (2014). And those sorts of restrictions do not turn directly on gender; they do not withhold a benefit, choice, or opportunity from an individual because that individual is a man or a woman. Although the gender stereotyping so typical of sex discrimination may be present, see generally Koppelman, 69 N.Y.U. L. Rev. 197, those restrictions are better analyzed as sexual orientation discrimination, as we did in SmithKline. 740 F.3d at 480–84.
As to the same-sex marriage bans in particular, however, the gender discrimination rubric does squarely apply, for the reasons I have discussed. And as I hope I have shown, the concepts and standards developed in more than forty years of constitutional sex discrimination jurisprudence rest on the understanding
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that “[s]anctioning sex-based classifications on the grounds that men and women, simply by virtue of their gender, necessarily play different roles in the lives of their children and in their relationships with each other causes concrete harm to women and to men throughout our society.” Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J. L. & Gender 461, 505 (2007). In my view, the same-sex marriage bans belie that understanding, and, for that reason as well, cannot stand.

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