Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 1 of 32 PageID #: 36

JOHN J. D’AMATO 5540-0 JOHN T. MALONEY, JR. 4563-0 WILLIAM LEE 8361-0 D’AMATO & MALONEY, LLP 900 Fort Street Mall, Suite 1680 Honolulu, Hawai‘i 96813 Telephone: (808) 546-5200; (808) 546-5203 (f) jdamato@benefitslawyers.com Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I

NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY,
Plaintiffs,

CIVIL NO. CV11- 00734 ACK KSC
(CONSTITUTIONALITY OF STATE STATUTE)

vs.
NEIL S. ABERCROMBIE, Governor, State of Hawai‘i, and LORETTA J. FUDDY, Director, Department of Health, State of Hawai‘i,

FIRST AMENDED COMPLAINT; CERTIFICATE OF SERVICE

Defendants.

COMPLAINT Plaintiffs NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY, by and through their attorneys, D’Amato & Maloney, LLP, allege that they have been denied rights to Due Process and Equal Protection secured by the U.S. Constitution in that they have been denied the right to

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 2 of 32 PageID #: 37
marry a person of the same sex. Specifically, they allege the following: PARTIES AND NATURE OF CASE
1. Plaintiff NATASHA N. JACKSON (“Jackson”) is a woman and citizen and resident of Honolulu, State of Hawai‘i.
2. Plaintiff JANIN KLEID (“Kleid”) is a woman and citizen and resident of Honolulu, State of Hawai‘i.
3. On November 18, 2011, Plaintiffs Jackson and Kleid sought to obtain a marriage license from the Department of Health, State of Hawai‘i (“Department”).
4. Stella Somiko Allen, representing the Department, told them that they are denied the right to marry because they are both women.
5. NEIL S. ABERCROMBIE (“Governor”) is the Governor of Hawai‘i and is sued in that capacity. As Governor, he is the chief executive of Hawai‘i and is charged with executing its laws. Constitution of Hawai‘i (“Haw. Const.”) Art. 5, §§1 & 5. The Governor resides in Honolulu and maintains a principal office in Honolulu.
6. LORETTA J. FUDDY (“Director”) is the Director of the Department and is sued in that capacity. As Director, she is the chief executive of the Department and has ultimate responsibility for its functions, including the administration of marriage licenses. Hawai‘i Revised Statutes
2

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 3 of 32 PageID #: 38
(“H.R.S.”) §§26-13, 572-5. The Director resides in Honolulu and maintains a principal office in Honolulu.
7. Plaintiffs Jackson and Kleid allege that the denial of a marriage license to them by the State of Hawai‘i pursuant to Section 572-1 of the H.R.S. and Section 23 of Article 1 of the Hawai‘i Constitution violates rights to Due Process and Equal Protection under State law guaranteed them by the Fourteenth Amendment of the U.S. Constitution. (As used to identify rights protected by the Fourteenth Amendment of the U.S. Constitution, “Due Process” and “Equal Protection” will be capitalized in order to distinguish those rights from comparable rights under the Hawai‘i Constitution and other State Constitutions.)
8. Plaintiff GARY BRADLEY (“Bradley”) is a man and citizen and resident of Honolulu, State of Hawai‘i.
9. Plaintiff Bradley and his partner, a male and foreign national, were the first male couple to enter into a civil union under the Hawai‘i civil union law, which became effective on January 1, 2012.
10. Plaintiff Bradley alleges that he and his partner entered into a civil union and did not seek a marriage license because it was futile for them to seek a marriage license under Section 572-1 of the H.R.S.
11. Plaintiff Bradley alleges that denying the right to marry a
3

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 4 of 32 PageID #: 39
person of the same sex pursuant to Section 572-1 of the H.R.S. and Section 23 of Article 1 of the Hawai‘i Constitution violates rights to Due Process and Equal Protection under State law guaranteed to him by the Fourteenth Amendment of the U.S. Constitution.
JURISDICTION AND VENUE 12. This Court has jurisdiction of this matter pursuant to 28 United States Code (“U.S.C.”) §1331. 13. Venue is proper under 28 U.S.C. §1391.
INTRODUCTION 14. People who are lesbian or gay make up a relatively powerless and unpopular minority, both in Hawai‘i and the United States, generally. They have been and remain the subject of invidious discrimination by private actors and have also been denied rights under State law enjoyed by opposite sex couples and heterosexuals, including the right to marry. 15. For more than twenty years, lesbian and gay couples have fought in State and Federal courts for the right to marry. 16. In the 1990s, Baehr v. Miike put Hawai‘i’s State courts at the forefront of that fight. 17. Baehr v. Miike was filed by three same sex couples on May 1, 1991 in Hawai‘i’s First Circuit Court under the name Baehr v. Lewin, Lewin
4

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 5 of 32 PageID #: 40
then being the Director of the Department. The plaintiffs complained that they had been denied marriage licenses in violation of their rights to due process and equal protection under Hawai‘i’s Constitution.
18. Baehr v. Miike was initially dismissed on the trial court’s finding that the State had a rational purpose for limiting marriage to opposite sex couples.
19. On appeal, the Hawai‘i Supreme Court reversed. In the plurality opinion rendered by Steven H. Levinson, J., the Hawai‘i Supreme Court held that Section 572-1 of the H.R.S. discriminated on the basis of sex in determining who may and may not marry and that such a discriminatory use of a sexual classification constituted a facial violation of the equal protection clause of Hawai’i’s Constitution. Baehr v. Lewin, 74 Haw. 530, 580, 852 P.2d 44, 67 (Haw. 1993). Consequently, the trial court was instructed that Section 572-1 of the H.R.S. was presumptively unconstitutional and that the State’s justification for the law had to be subjected to strict scrutiny. Id. To overcome the presumption of unconstitutionality and survive the test of strict scrutiny, the State would need to carry the heavy burden of showing both that denying same sex couples the right to marry served compelling State interests and that Section 572-1 of the H.R.S. had been narrowly drawn to achieve those interests. Id.
5

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 6 of 32 PageID #: 41
20. Acknowledging that same sex marriage might be unpopular, Justice Levinson observed, “constitutional law may mandate, like it or not, that customs change with an evolving social order.” Id., at 570.
21. At trial, Kevin S. C. Chang, J., found that the State had failed to show that denying same sex couples the right to marry served compelling State interests. Baehr v. Miike, 1996 WL 694235, *25 (Haw.Cir.Ct.).
22. The State had promised to show five compelling State interests were served by restricting marriage to opposite sex couples. Id., at *4.
23. The State had promised to show that the denial served its “compelling interest in protecting the health and welfare of children and other persons”. But it failed to show how same sex marriage would jeopardize children or anyone else. Instead, the Court found that, “The sexual orientation of parents does not automatically disqualify them from being good, fit, loving or successful parents”; id., at *20; and that, “Gay and lesbian parents and same-sex couples have the potential to raise children that are happy, healthy and well-adjusted.” Id., at *21.
24. The State had promised to show that the denial served its “compelling interest in fostering procreation within a marital setting” because such a setting was “optimal” for child rearing, but the State’s own expert testified “that single parents, gay fathers, lesbian mothers and same-
6

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 7 of 32 PageID #: 42
sex couples have the potential to, and often do, raise children that are happy,
healthy and well-adjusted.” Id., at *4. The Court found,
There certainly is a benefit to children which comes from being raised by their mother and fat her in an intact and relatively stress free home.
However, there is diversity in th e structure and configuration of families. In Hawaii, and elsewher e, children are being raised by their natural parents, single pare nts, step-parents, grandparents, adopted parents, hanai parents, foster parents, gay and lesbian parents, and same-sex couples.
There are also fam ilies in Hawa ii, and elsewhere, which do not have children as family members.
The evidence presented by Plaintiffs and Defendant establishes that the single most important factor in the development of a happy, healthy and well-adjusted child is the nurturing relationship between parent and child.
Id., at *20 (paragraph numbering omitted).
25. The State had promised to show that the denial served its
“compelling interest in securing or assuring recognition of Hawai‘i
marriages in other jurisdictions”. But it failed “to establish or prove any
adverse impacts to the State of Hawaii or its citizens resulting from the
refusal of other jurisdictions to recognize Hawaii same-sex marriages or
from application of the federal constitutional provision which requires other
jurisdictions to give full faith and credit recognition to Hawaii same-sex
marriages”. Id., at *19-20.
7

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 8 of 32 PageID #: 43
26. The State had promised to show that the denial served its “compelling interest in protecting the State’s public fisc from the reasonably foreseeable effects of State approval of same-sex marriage”, but it failed to demonstrate how the State’s fisc would be adversely affected. Id., at *19.
27. Finally, the State had promised to show it had a compelling interest in averting “the reasonably foreseeable effects of State approval of same-sex marriages” on the theory that such approval would lead to the legalization of all manner of sexual conduct and marriage, including “legalized prostitution, incest and polygamy”. But the Court dismissed that argument because it “disregards existing statutes and established precedent … and the Supreme Court's acknowledgment of compelling reasons to prevent and prohibit marriage under circumstances such as incest.” Id., at *24.
28. Summing up the case, Judge Chang concluded that the State has failed to present sufficient credible evidence which demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage. Nor has Defendant demonstrated how same-sex marriage would adversely affect the public fisc, the state interest in assuring recognition of Hawaii marriages in other states, the institution of traditional marriage, or any other important public or governmental interest.
Id., at *25.
8

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 9 of 32 PageID #: 44
29. Accordingly, Judge Chang held that, “The evidentiary record presented in this case does not justify the sex-based classification of HRS Sec. 572-1” and entered judgment in favor of the Plaintiffs. Id.
30. On account of the bold and persuasive rulings by Justice Levinson and Judge Chang in Baehr v. Miike, Hawai‘i was poised, in 1996, to be the first jurisdiction in the world to recognize same sex marriage.
31. But as is well known, that was not to be. Judge Chang’s ruling in Baehr v. Miike was appealed to the Hawai‘i Supreme Court and was stayed during the pendency of the appeal in order to give the Legislature the opportunity to act. The Legislature did act in several ways. First, it attempted to pass legislation permitting same sex marriage. That legislation failed, and many of the legislators who had promoted it were turned out of office. Next, the Legislature adopted the Reciprocal Beneficiaries Act (“RB Act”) in 1997. The RB Act provided a limited version of the rights incident to marriage to a whole range of beneficiaries, including individuals prohibited from marrying on account of the prohibition against incest. Finally, in 1998, the Legislature put before the people a Constitutional amendment purporting to authorize the Legislature to limit marriage to opposite sex couples. The so-called “marriage amendment” was duly ratified by a substantial majority and became law on November 3, 1998.
9

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 10 of 32 PageID #: 45
32. Set forth at Section 23 of Article 1 of the Hawai‘i Constitution,
the “marriage amendment” provides that, “The legislature shall have the
power to reserve marriage to opposite sex couples.”
33. Finally taking up the matter of the appeal of Baehr v. Miike, the
Hawai‘i Supreme Court held that the case’s equal protection claim had been
mooted by the “marriage amendment”:
The passage of the marriage amendment placed HRS Sec. 5721 on new footing. The marriage amendment validated HRS Sec. 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS Sec. 5721 no longer is. In light of the marriage amendment, HRS Sec. 572-1 must be given full force and effect… Inasmuch as HRS Sec. 572-1 is now a valid statute, the relief sought by the plaintiffs is unavailable. The marriage amendment has rendered the plaintiffs’ complaint moot.
Baehr v. Miike, Hawai‘i Supreme Court, No. 20371, Order of Dec. 9, 1999.
34. As the opinions of Justice Levinson and Judge Chang had
seemed a great victory for lesbians and gays, so now did the final order in
Baehr v. Miike represent a devastating defeat. Not since Dred Scott v.
Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), had plaintiffs been
told by the court to which they had applied for relief that the relief sought
could not be theirs because they had no constitutional right even to
10

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 11 of 32 PageID #: 46
complain. 35. In the twelve years since Baehr v. Miike was dismissed, same
sex couples have won the right to marry in many jurisdictions. 36. In 2001, the Netherlands became the first country to legalize
same sex marriage. Same sex marriage is now permitted in nine countries in addition to the Netherlands: Argentina, Belgium, Canada, Iceland, Norway, Portugal, Spain, South Africa, and Sweden.
37. Same sex marriage is also permitted in Mexico City and in parts of the United States, while same-sex marriages performed elsewhere are recognized in Israel and in the Netherlands’ possessions in the Carribean—Aruba, Curacao, and Sint Maarten.
38. The parts of the United States in which same sex marriage is now recognized (ordered by the date of the relevant court ruling or legislation) are Massachusetts (ruling dated 11/18/2003), Iowa (ruling dated 4/3/2009), New Hampshire (law enacted 6/3/2009), Vermont (law enacted 9/1/2009), the District of Columbia (law enacted 12/18/2009), Connecticut (ruling dated 10/28/2010), and New York (law enacted 7/24/2011). Same sex marriage was also briefly recognized in California in 2008 in consequence of a California Supreme Court order and may again become recognized if the appeal of the result favorable to same sex couples in Perry
11

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 12 of 32 PageID #: 47
v. Brown, Case No. C 09-2292 (N.D.Cal. 8/4/2010), is denied.
39. In all four jurisdictions in which the right of same sex couples
to marry was won through litigation—Massachusetts, Iowa, Connecticut,
and California—the litigation invariably included equal protection
arguments like those made in Hawai‘i, and, as had been the case in Hawai‘i,
in none of those States was the State able to show that its denial of marriage
to same sex couples served a legitimate policy interest.
40. In Goodridge v. Department of Public Health, 440 Mass. 309,
798 N.E.2d 941 (Mass. 2003), the Massachusetts Supreme Judicial Court
reversed the trial court, holding that denying same sex couples the right to
marry had no rational basis, let alone a compelling or substantial purpose,
and that it therefore violated rights to due process and equal protection under
the Massachusetts Constitution. The opinion of the Massachusetts Supreme
Judicial Court opened with language that could have been written by Justice
Levinson or Judge Chang:
Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.
12

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 13 of 32 PageID #: 48
We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.
Goodridge, supra, 440 Mass. at 312, 798 N.E.2d at 948.
41. In Connecticut, the right to same sex marriage was mandated by
the decision of the Connecticut Supreme Court in Kerrigan v. Commissioner
of Public Health, 289 Conn. 135, 957 A.2d 407 (Conn. 2008).
42. Plaintiffs’ challenge to Connecticut’s marriage law had been
dismissed by the trial court on the State’s argument that its adoption of a
civil union law, during the pendency of plaintiffs’ action, had given same
sex couples the same rights as those of married couples, thereby foreclosing
plaintiffs’ argument that Connecticut had unfairly discriminated against
them. As summarized by the Connecticut Supreme Court,
The trial court concluded that the plaintiffs could not establish “that they have suffered any legal harm that rises to constitutional magnitude”… because “[t]he effect of [the civil union law] has been to create an identical set of legal rights in Connecticut for same sex couples and opposite sex couples.”
Kerrigan, supra, 289 Conn. at 146-7, 957 A.2d at 415.
43. The Connecticut Supreme Court disagreed. Concurring with
plaintiffs that “marriage is not simply a term denominating a bundle of legal
13

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 14 of 32 PageID #: 49
rights” but “an institution of unique and enduring importance in our society,
one that carries with it a special status”; id., 289 Conn. at 148-9, 957 A.2d at
416; the Connecticut Supreme Court held that the State’s civil union law had
created a status of “second class citizenship” for same sex couples,
forbidden by the equal protection clause of Connecticut’s Constitution.
Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered…we cannot discount the plaintiffs’ assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. … “Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.” … We therefore agree with the plaintiffs that “[m]aintaining a secondclass citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.”
Id., 289 Conn. at 151, 957 A.2d at 418.
44. In Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), the Iowa
Supreme Court unanimously upheld the trial court’s ruling that denying
same sex couples the right to marry violated the equal protection clause of
the Iowa Constitution.
45. At the outset of their opinion, the Iowa Supreme Court
emphasized the priority of their judicial duty over public opinion:
A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and
14

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 15 of 32 PageID #: 50
deep-seated traditional beliefs and popular opinion…. […] Our responsibility… is to protect constitutional rights of
individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. Varnum, supra, 763 N.W.2d at 875. 46. The Iowa Supreme Court held, first, that a heightened level of scrutiny of marriage law was mandated by certain factors, including, in particular, the history of discrimination against lesbian and gay people. Next, the court held that the State of Iowa had not met its burden under this heightened level of scrutiny of showing that its marriage law was substantially related to an important governmental objective; in fact, it had not demonstrated that any permissible State objective was served by denying same sex couples the right to marry. Id., 763 N.W.2d at 880, 885, 887, 896904, et passim. 47. In In re Marriage Cases, 183 P.3d 384 (Cal. 2008), the California Supreme Court held that California’s marriage law violated the California Constitution’s equal protection clause by denying same sex couples the right to marry. 48. In reaction, a citizens’ initiative group proposed an amendment to the California Constitution for the November 4, 2008, state elections. The
15

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 16 of 32 PageID #: 51
amendment purported to restrict marriage to a man and a woman and was entitled, “Proposition 8”, on the state ballot. Proposition 8 passed and became effective on November 5, 2008.
49. Same sex couples attacked Proposition 8 in Perry v. Brown (originally, Perry v. Swarznegger), Case. No. C 09-2292 (N.D.Cal. 8/4/2010) (“Perry”). Plaintiffs brought their challenge in federal District Court, arguing that Proposition 8 violated their rights to Due Process and Equal Protection under the U.S. Constitution.
50. The defendants in Perry were five representatives of the State of California or subordinate organizations, including the Governor and Attorney General. Four of the five defendants declined to take a position on Proposition 8 or to defend it; the Attorney General answered with the view that Proposition 8 was unconstitutional. Perry, supra, Findings of Fact and Conclusions of Law (“Ruling”), *3.
51. The defense of Proposition 8 was taken on by the citizens’ initiative group which had promoted it.
52. The Perry Court found that the claims of the plaintiffs in the case were meritorious in that “Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” Perry, supra, Ruling, *109.
16

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 17 of 32 PageID #: 52
53. Perry’s holding rested on findings that have become
commonplace since Baehr v. Miike—that marriage implicates fundamental
relationships and rights, that same sex couples can make good and loving
parents, that marriages between same sex couples will not undermine
marriages between opposite sex couples, that denying same sex couples the
right to marry denies them the dignity of marriage, merely punishes them for
being who they are, and serves private moral beliefs, values, and prejudices
rather than State interests. On the issue of “traditional” marriage and
changes in attitudes and law regarding marriage, the Perry Court observed,
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
Id., Ruling, *113.
54. The idea of same sex marriage has also gained in popular
acceptance since the Baehr case. A public opinion poll released by the Pew
Institute on November 3, 2011, shows that, on a national basis, 42% of the
public supports gay marriage, while 48% opposes it. 17

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 18 of 32 PageID #: 53
55. In Hawai‘i itself, the cause of same sex marriage has languished in a kind of legislative and legal limbo since the “marriage amendment” put an end to Baehr v. Miike.
56. After several failed attempts at legislation, a civil union law was enacted in 2011 and became effective on January 1, 2012.
57. The civil union law is intended to be a substitute for marriage, but Plaintiffs Jackson, Kleid, and Bradley (hereafter, “Plaintiffs”) respectfully allege that it is not and cannot be.
58. Plaintiffs believe that they have been deprived of a fundamental right and have been discriminated against unjustly by a law that is unfair, discriminatory, and not based upon any lawful purpose of the State of Hawai‘i.
59. Owing to Baehr v. Miike, Plaintiffs cannot rely any further upon the equal protection clause of the Hawai‘i Constitution insofar as the right to marry is concerned.
60. Plaintiffs yet have recourse, however, to the guarantees of Due Process and Equal Protection under State law secured by the Fourteenth Amendment of the U.S. Constitution. It is on that basis, therefore, that Plaintiffs ask this Court for relief.
18

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 19 of 32 PageID #: 54
ALLEGATIONS SPECIFIC TO PLAINTIFFS’ CLAIMS 61. At no time relevant to this Complaint, were Plaintiffs Jackson and Kleid disqualified from marrying each other or was Plaintiff Bradley disqualified from marrying his partner under Section 572-1 of the H.R.S., except for the reason of being of the same sex. 62. Plaintiffs Jackson and Kleid maintain a household together and have been involved in a romantic and committed relationship with each other for four years. 63. Likewise, Plaintiff Bradley and his partner maintain a household together and have been involved in a committed and romantic relationship with each other for more than three years. 64. During their relationship, Plaintiffs Jackson and Kleid have experienced their share of vicissitudes, including serious health problems and the loss of jobs, but they have remained true to one another and steadfast in their relationship. They pool their resources to share expenses and have been each other’s main source of emotional support. 65. Likewise, Plaintiff Bradley and his partner have faced their challenges as a couple over the last several years and have been each other’s main source of support. 66. Neither Plaintiff Jackson nor Plaintiff Kleid has any interest in
19

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 20 of 32 PageID #: 55
marrying a male, and Plaintiff Bradley has no interest in marrying a female. 67. Plaintiffs Jackson and Kleid and Plaintiff Bradley and his
partner desire to marry for all the many and varied reasons that any couple desire to marry, including that they wish to share in the security and cultural meaning of marriage; to declare, formalize, and celebrate with their family and friends their commitment and love for each other as spouses; to be accepted, each by the other’s family, as their loved one’s life partner; and to enjoy the legal and economic benefits of marriage, including the benefits provided under State law, Federal law, and such private contracts as private employers’ employee benefit plans.
68. Plaintiffs allege that Section 572-1 of the H.R.S. unlawfully denies them the right to marry, thereby frustrating their purposes, causing injury to their dignity as human beings, and depriving them of the economic and other benefits of marriage under Federal law and private contracts, including, in particular, private employers’ employee benefit plans.
69. In support of the foregoing paragraph, Plaintiffs allege, first, that the State’s denying Plaintiffs the right to marry is unlawful because it does not serve any rational purpose of the State.
70. The same treatment given spouses under Hawai‘i statutory, regulatory, and decisional law must now be given to partners in civil unions
20

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 21 of 32 PageID #: 56
pursuant to Hawai‘i’s civil union law. 71. Further, opposite sex couples as well as same sex couples may
enter into civil unions under Hawai‘i’s civil union law. 72. Consequently, each and every policy interest and legal purpose
of the State served through Hawai‘i’s institution of marriage can now be served through Hawai‘i’s institution of civil unions.
73. Because the manifest policy of Hawai‘i law is to give identical legal treatment to spouses and to partners in civil unions under Hawai‘i law, the State’s continuing to deny same sex couples the right to marry, while permitting opposite sex couples to choose freely between marriage and civil unions, does not have a rational purpose furthering any lawful policy of the State, is purely an act of discrimination based upon the sex and sexual preferences of same sex couples, and is unlawful.
74. Second, the State’s denying same sex partners the right to marry is injurious and demeaning to such partners’ dignity as human beings because it subordinates their relationships to those of heterosexual couples; the withholding of the right to marry constitutes the rebuke that same sex relationships are not entitled to the same respect as those of heterosexual couples.
75. Hawai‘i’s civil union law purports to solve this problem by
21

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 22 of 32 PageID #: 57
replacing the denied status of marriage with the legally equivalent (for purposes of Hawai‘i law) status of civil unions.
76. But there is no substitute for marriage. 77. As the Kerrigan and Perry courts held persuasively, marriage is not merely a bundle of rights, notwithstanding the treatment of a civil union as a bundle of rights equivalent to a marriage under Hawai‘i law. Marriage is a special and unique status, accorded unique meanings and traditions and affording those who participate in it unique respect. 78. Hawai‘i’s “solution” to the problem of giving legal recognition to the relationships of same sex couples without permitting them to marry has not created equality but a system as pernicious and damaging in its effects as any system of segregation. As African-Americans were permitted to ride on public buses but denied the right to sit in the front of the bus in an earlier time, so now are same sex couples given the “rights” of marriage under Hawai‘i law but denied the respect and sanctity of marriage. 79. Third, the State’s denying same sex couples the right to marry deprives them of economic and other benefits under Federal law and private employee benefit contracts. 80. The Hawaii State Legislature can force equivalence between civil unions and marriages under State law, but it is powerless to force such
22

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 23 of 32 PageID #: 58
equivalent treatment under Federal law or private employee benefit plans. 81. State law relating to private employee benefit plans is
preempted by Section 514(a) of the Employee Retirement Income Security Act (“ERISA”). Consequently, the State of Hawai‘i may not require private employers to give partners in civil unions the same rights as spouses under their benefit plans.
82. However, if same sex individuals could be spouses under Hawai‘i law, then they would automatically be entitled to the same rights as spouses under any employee benefit plan that provides benefits to spouses, and they would be entitled to enforce such rights under Section 502(a) of ERISA.
83. Under Federal law—including Federal income tax, estate tax, pension, and immigration law—more than 1,000 special rights and benefits are provided to spouses, but no such special rights and benefits are provided to partners in civil unions.
84. Plaintiffs allege that they would be entitled—or could become entitled—to such special rights and benefits if they were permitted to marry under State law, notwithstanding Section 3 of the Defense of Marriage Act (“DOMA”), which purports to limit “marriage,” for all purposes of Federal law, to unions between opposite sex couples.
23

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 24 of 32 PageID #: 59
85. In a letter to Congress dated February 23, 2011, AttorneyGeneral Holder gave notice that President Obama had made the determination that Section 3 of DOMA is unconstitutional as applied to same sex couples legally married under State law and that the Obama administration would no longer defend Section 3 of DOMA in court against such couples. Attorney-General Holder explained,
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. 86. In a letter dated February 23, 2011, the U.S. Department of Justice gave notice to the U.S. Circuit Court for the First Circuit that it would cease to prosecute appeals in two cases challenging DOMA. In those cases, the trial court had held Section 3 of DOMA to be unconstitutional. 87. Accordingly, Plaintiffs allege that if they could marry under Hawai‘i law, then, DOMA notwithstanding, they would enjoy all the special rights and benefits of spouses under Federal law. 88. At the least, if they could marry under Hawai‘i law, Plaintiffs allege that they would have the right to challenge the denial of spousal benefits to same sex married couples pursuant to Section 3 of DOMA.
24

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 25 of 32 PageID #: 60
89. But if Plaintiffs may not marry under Hawai‘i law, but may only be partners in civil unions, then they will not have the right to the special Federal rights and benefits given to spouses under the clear terms of Federal law, and they will not have the right to challenge the denial of such rights and benefits should the Federal government seek to deny such rights and benefits under Section 3 of DOMA.
90. Section 1 of Article 3 of the Hawai‘i Constitution limits the legislative power of the State Legislature “to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States”.
91. At Article 6, Section 2, of the U.S. Constitution, the Supremacy Clause declares, in relevant part,
This Constitution … shall be the supreme law of the land …, anything in the constitution or laws of any state to the contrary notwithstanding. 92. Section 1 of the Fourteenth Amendment to the U.S. Constitution guarantees Plaintiffs Jackson and Kleid the right to Due Process and Equal Protection under State law, providing, in part (underlining added), 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.
25

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 26 of 32 PageID #: 61
93. Section 572-1 of the H.R.S. provides, in part, “the marriage contract … shall be only between a man and a woman…”
COUNT ONE VIOLATION OF PLAINTIFFS’ RIGHT TO DUE PROCESS 94. Plaintiffs hereby incorporate paragraphs 1 through 93, above, as though fully set forth herein. 95. The freedom to marry is a fundamental civil right. As Justice Levinson had observed in Baehr v. Lewin, supra, 74 Haw. at 562-3, 852 P.2d at 60, quoting Loving v. Virginia, 388 U.S. 1, 12 (1967),
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free [people].” So “fundamental” does the United States Supreme Court consider the institution of marriage that it has deemed marriage to be “one of the ‘basic civil rights [of men and women].’” 96. By denying Plaintiffs the right to marry the same sex person of their choice, Section 572-1 of the H.R.S. severely burdens their opportunity to exercise the right of marriage in the jurisdiction of Hawai‘i. In fact, by limiting the choices of Plaintiffs Jackson and Kleid to males and of Plaintiff Bradley to females, Section 572-1 of the H.R.S. effectively denies Plaintiffs the right to marry because it is highly unlikely that any Plaintiff would ever choose to marry a person of the opposite sex. 97. The State of Hawai‘i does not have a rational purpose, let alone
26

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 27 of 32 PageID #: 62
a substantial or compelling reason, for denying same sex couples the right to marry and for so burdening Plaintiffs’ exercise of the right to marry.
98. The State of Hawai‘i’s denying same sex couples the right to marry is not based upon lawful policy interests but private moral judgments, values, and prejudices, including animus against homosexual individuals and wholly unfounded fears that same sex marriage will undermine the institution of marriage or harm children.
99. For the foregoing reasons, Plaintiffs allege that Section 572-1 of the H.R.S. violates the right to Due Process under State law guaranteed them by the Fourteenth Amendment of the U.S. Constitution, both on its face and as applied to them; that it is consequently unlawful; that, to the extent that the “marriage amendment” purports to authorize such a violation of their rights, it is also unconstitutional, void, and without effect; and that neither provision of Hawai‘i law may be enforced against same sex couples by the Governor, Director, or any person.
COUNT TWO VIOLATION OF PLAINTIFFS’ RIGHT TO EQUAL PROTECTION
100. Plaintiffs hereby incorporate paragraphs 1 through 99, above, as though fully set forth herein.
101. Section 572-1 of the H.R.S. prescribes who may and may not
27

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 28 of 32 PageID #: 63
marry on the basis of sex, permitting a man and a woman to marry but neither two men nor two women.
102. By proscribing marriage between two men and between two women, Section 572-1 of the H.R.S. also proscribes marriage on the basis of sexual orientation since it is highly unlikely that any two individuals of the same sex who are not gay would wish to marry.
103. Hawai‘i’s classification of who may and may not marry by sex and sexual orientation serves no rational purpose, let alone a compelling or substantial purpose. It is instead a classification that makes no sense except as an expression of private moral judgments, values, and prejudices.
104. For the foregoing reasons, Plaintiffs allege that Section 572-1 of the H.R.S. violates the right to Equal Protection under State law guaranteed them by the Fourteenth Amendment of the U.S. Constitution, both on its face and as applied to them; that it is consequently unlawful; that, to the extent that the “marriage amendment” purports to authorize such a violation of their rights, it is also unconstitutional, void, and without effect; and that neither provision of Hawai‘i law may be enforced against same sex couples by the Governor, Director, or any person.
COUNT THREE CLAIMS UNDER 42 U.S.C. §1983
28

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 29 of 32 PageID #: 64
105. Plaintiffs hereby incorporate paragraphs 1 through 104, above, as though fully set forth herein.
106. By enforcing Section 572-1 of the H.R.S. against same sex couples, the Governor, Director, and their agents have acted under color of State law to deny Plaintiffs rights to Due Process and Equal Protection secured by the Fourteenth Amendment of the U.S. Constitution.
107. Plaintiffs are therefore entitled to the remedies provided by and through 42 U.S.C. §1983.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: a. Declare that the restriction of the right of marriage to opposite
sex couples under Section 572-1 of the H.R.S. violates the rights of Plaintiffs to Due Process and Equal Protection under State law guaranteed by the Fourteenth Amendment of the U.S. Constitution; b. Declare that the “marriage amendment” violates the rights of Plaintiffs to Due Process and Equal Protection under State law guaranteed by the Fourteenth Amendment of the U.S. Constitution to the extent it purports to authorize the Hawai‘i Legislature to deny same sex couples the right to marry;
29

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 30 of 32 PageID #: 65

c. Find that, on account of the actions of the Governor, Director, and their agents in enforcing Section 572-1 of the H.R.S., Plaintiffs are entitled to the remedies of 42 U.S.C. §1983;
d. Permanently enjoin the Governor, the Director, and any person acting on their behalf from enforcing the restriction of marriage to opposite sex couples under Section 572-1 of the H.R.S.;
e. Award Plaintiffs their attorney’s fees and costs and expert fees pursuant to 42 U.S.C. §1988(b) and (c); and
f. Award such other and further relief and make such other findings and declarations, as it may deem just and proper.
DATED: Honolulu, Hawai‘i, January 27, 2012.

/s/ JOHN J.
Attorneys

John J. D’Amato J. D’AMATO
THOMAS MALONEY, JR. WILLIAM LEE
for Plaintiffs

30

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 31 of 32 PageID #: 66

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY,
Plaintiffs,

CIVIL NO. CV11- 00734 ACK KSC
(CONSTITUTIONALITY OF STATE STATUTE)

vs.

CERTIFICATE OF SERVICE

NEIL S. ABERCROMBIE, Governor, State of Hawai‘i, and LORETTA J. FUDDY, Director, Department of Health, State of Hawai‘i,

Defendants.

CERTIFICATE OF SERVICE

I hereby certify that on the date noted below, a copy of PLAINTIFFS

NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY’S FIRST

AMENDED COMPLAINT, was served via DELIVERY addressed as follows:

William J. Wynhoff, Esq. (bill.j.wynhoff@hawaii.gov)

Harvey E. Henderson, Jr., Esq. (Harvey.E.HendersonJr@hawaii.gov)

Department of the Attorney General

425

Queen Street

Honolul u, HI 96813

DATED: Honolulu, Hawaii, this 27th day of January, 2012.

/s/ JOHN

William Lee J. D’AMATO
31

Case 1:11-cv-00734-ACK-KSC Document 6 Filed 01/27/12 Page 32 of 32 PageID #: 67

JOHN Attorneys

T. MALONEY, Jr. WILLIAM LEE
for Plaintiffs NATASHA N. JACKSON, JANIN KLEID, and GARY BRADLEY

32

 
 Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 1 of 34 PageID #: 762

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

NATASHA N. JACKSON, JANIN KLEID,)

and GARY BRADLEY,

)

)

Plaintiffs,

)

)

v.

)

)

NEIL S. ABERCROMBIE, Governor, )

State of Hawaii, and LORETTA J. )

FUDDY, Director of Health, State)

of Hawaii,

)

)

Defendants.

)

)

Civ. No. 11-00734 ACK-KSC

ORDER GRANTING HAWAII FAMILY FORUM’S MOTION TO INTERVENE PROCEDURAL BACKGROUND
On December 7, 2011, Plaintiffs Natasha N. Jackson and Janin Kleid filed suit against Hawaii Governor Neil S. Abercrombie and Loretta J. Fuddy, Director of Hawaii’s Department of Health (“Defendants”). Doc. No. 1. On January 27, 2012, Plaintiffs filed a First Amended Complaint (“Am. Compl.”), adding Gary Bradley as a plaintiff and expanding Plaintiffs’ claims. Doc. No. 6. Specifically, Plaintiffs challenge Hawaii Revised Statutes (“H.R.S.”) § 572-1, which states that a valid marriage contract shall be only between a man and woman, and Article I, Section 23 of the Hawaii Constitution (the “marriage amendment”), which provides that “[t]he legislature shall have the power to reserve marriage to opposite-sex couples.” Plaintiffs assert

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 2 of 34 PageID #: 763
that these two laws violate the Equal Protection and Due Process Clauses of the United States Constitution. Am. Compl. ¶¶ 94-104.
On February 21, 2012, Defendants filed separate answers to the Amended Complaint. Doc. Nos. 9-10. In his answer, Defendant Abercrombie stated that he “admits that to the extent HRS § 572-1 allows opposite sex couples, but not same sex couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution.” Doc. No. 9 (“Abercrombie’s Answer”), at 2. In Defendant Fuddy’s answer, she denies that § 572-1 and the marriage amendment violate the Constitution. Doc. No. 10 (“Fuddy’s Answer”), at 67.
On March 1, 2012, Hawaii Family Forum (“HFF”) filed a motion to intervene as a defendant (“HFF’s Motion”). Doc. No. 15. HFF also filed a proposed answer denying that Hawaii’s marriage laws are unconstitutional. Doc. No. 16. On April 9, 2012, Defendant Fuddy filed a memorandum in support of HFF’s Motion (“Fuddy’s Mem.”). Doc. No. 23. Also on April 9, 2012, Plaintiffs and Defendant Abercrombie filed memoranda in opposition to HFF’s Motion (“Pls.’ Opp’n” and “Abercrombie’s Opp’n,” respectively). Doc. Nos. 24, 27. Plaintiffs also filed a request that the Court take judicial notice of several exhibits
2

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 3 of 34 PageID #: 764
attached to their opposition.1/ Doc. No. 26. On April 16, 2012, HFF filed a reply in support of its Motion (“HFF’s Reply”). Doc. No. 34. On April 24, 2012, HFF submitted a supplemental authority it intended to rely on at the hearing. Doc. No. 40. On April 25, 2012, Plaintiffs submitted a supplemental authority in support of their opposition. Doc. No. 41.
The Court held a hearing on HFF’s Motion on April 30, 2012.
FACTUAL BACKGROUND2/
I. Same-Sex Marriage in Hawaii
In Hawaii, same-sex marriage has been the subject of much litigation and legislation. In May 1991, several same-sex couples filed a lawsuit seeking a declaration that § 572-1 violated the equal protection, due process, and privacy components of the Hawaii Constitution in so far as it had been interpreted and applied by the Hawaii Department of Health to deny marriage licenses to same-sex couples. Baehr v. Lewin, 852 P.2d 44, 48-49 (Haw. 1993). The trial judge rejected the
1/Plaintiffs ask the Court to take judicial notice of eleven exhibits that they assert are copies of documents produced or made available by government agencies as public records. See Doc. No. 26. HFF has not opposed this request. The Court will consider these documents for purposes of ruling on the instant motion.
2/The facts as recited in this Order are for the purpose of disposing of the current motion and are not to be construed as findings of fact that the parties may rely on in future proceedings.
3

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 4 of 34 PageID #: 765
plaintiffs’ claims and granted a motion for judgment on the pleadings in favor of the defendants. See id. at 52. On appeal, a plurality of the Hawaii Supreme Court held that the Hawaii statute restricting marriage to a male and a female couple discriminates on the basis of sex, which constitutes a suspect category for purposes of equal protection analysis under the Hawaii Constitution. Id. at 63-67. Because the trial judge had reviewed the marriage statutes for a rational basis, the Hawaii Supreme Court remanded to the trial court to review it under the strict scrutiny standard that applies to suspect categories. Id. at 68-69. On December 3, 1996, on remand, the trial judge ruled that § 572-1 violated the Equal Protection Clause of the Hawaii Constitution. See Baehr v. Miike, Civ. No. 91-13945, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996).
Meanwhile, in 1994, the Legislature amended § 572-1 to clarify the Legislature’s intention that marriage should be limited to those of the opposite sex. Act of June 22, 1994, No. 217, 1994 Haw. Sess. Laws 526 (codified as amended at Haw. Rev. Stat. § 572-1). The legislature did so by adding the following underlined language to 572-1: “In order to make valid the marriage contract, which shall be only between a man and a woman. . . .” Id.
In 1997, the Legislature passed a proposed amendment to the Hawaii State Constitution to include a new section titled
4

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 5 of 34 PageID #: 766
“Marriage” that states “[t]he legislature shall have the power to reserve marriage to opposite-sex couples.” 1997 Haw. Sess. Laws 383. In November 1998, the people ratified the amendment via a ballot. See Haw. Const. Art. I, § 23. On December 9, 1999, the Hawaii Supreme Court issued a four-page unpublished summary disposition of an appeal of the trial court’s decision finding § 572-1 violated the Hawaii Constitution. Baehr v. Miike, No. 20371, 1999 Haw. LEXIS 391 (Haw. Dec. 9, 1999). The court held that the case was moot in light of the marriage amendment. Id. at *8. Specifically, the court held that “the passage of the marriage amendment placed HRS § 572-1 on new footing” and “validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples.” Id. at *6.
After several failed attempts, in 2011, the legislature enacted H.R.S. Chapter 572B (the “civil unions law”), which provides for civil unions between same-sex couples. The civil unions law gives partners to a civil union all of the same state legal rights granted to married couples. See H.R.S. § 572B-9.
In this suit, Plaintiffs challenge § 572-1 and the marriage amendment as unconstitutional under the federal Constitution, asserting inter alia, that “[b]ecause the manifest
5

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 6 of 34 PageID #: 767
policy of Hawaii law is to give identical legal treatment to
spouses and to partners in civil unions under Hawaii law,
the State’s continuing to deny same sex couples the right to
marry, while permitting opposite sex couples to choose freely
between marriage and civil unions, does not have a rational
purpose furthering any lawful policy of the State, is purely an
act of discrimination based upon the sex and sexual preferences
of same sex couples, and is unlawful.” Am. Compl. ¶ 73.
II. Hawaii Family Forum
HFF was incorporated on January 15, 1998. Pls.’ Opp’n
2. The Internal Revenue Service (“I.R.S.”) recognizes HFF as an
organization described in 26 U.S.C. § 501(c)(3) (a “501(c)(3)
organization”), thus qualifying HFF for favorable tax
treatment.3/ See id. HFF describes itself as “a non-profit,
3/Section 501(c)(3) grants tax exemption to:
Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition . . ., or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of
6

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 7 of 34 PageID #: 768
pro-family education organization committed to preserving and strengthening families in Hawaii.” HFF’s Mot. 4. HFF states that “it was established with the initial goal of spearheading a campaign to urge voters to ratify the [marriage] amendment.” Id.
HFF asserts that in months leading up to the November 1998 vote on the marriage amendment, it campaigned for the marriage amendment by producing and paying for 60 second radio advertisements on 13 Hawaii radio stations, which ran 18 to 48 times per week from July 29 through September 9, 1998; producing and paying for television advertisements that ran 116 times per week from August 24 through September 12, 1998, and again from September 20 through November 3, 1998; producing and running print advertisements in the Honolulu Star-Bulletin, Honolulu Advertiser, Honolulu Weekly, and Pacific Business News; encouraging citizens to register to vote; and providing voter registration information “[i]n order to get like-minded voters to the polls.”4/ Id. at 4-5. After the election, HFF circulated information to local churches “regarding the victory and highlighting continuing judicial and legislative challenges.” Id. at 5. HFF asserts it raised and expended more than $150,000
statements), any political campaign on behalf of (or in opposition to) any candidate for public office. 4/As will be discussed infra, Plaintiffs vigorously dispute some of HFF’s assertions, including HFF’s characterization of its actions.
7

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 8 of 34 PageID #: 769
to finance activities related to its marriage amendment campaign. Id.
In July 1998, a noncandidate committee opposed to the marriage amendment lodged a complaint with Hawaii’s Campaign Spending Commission (the “CSC”) against HFF. Pls.’ Opp’n Ex. O. The noncandidate committee alleged that HFF had violated Hawaii’s campaign spending laws through the expenditures incurred in the production and broadcast of one of its radio advertisements regarding the marriage amendment. Id.
The CSC dismissed the complaint, relying on CSC Advisory Opinion 98-12, which provides that advertising that is “informational,” expressing facts or opinions but not “expressly advocating” a particular vote, is protected by the First Amendment and therefore outside the jurisdiction of the CSC. Pls.’ Opp’n Ex. O. The CSC found that the HFF radio advertisement was informational because it was not “‘unmistakable and unambiguous’ in it’s meaning, and does not provide a clear plea for action.”5/ Id.
5/The radio advertisement stated: The following is a very important voter education message brought to you by Hawaii Family Forum. When you go to the voting booth on November Third, along with selecting the candidates of your choice, you will be asked to vote on this very important ballot question: “Shall the Constitution of the State of Hawaii be 8

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 9 of 34 PageID #: 770
HFF asserts that following the passage of the marriage amendment, it has continued to lead efforts to oppose legislation that would weaken traditional marriage. HFF’s Mot. 6. HFF explains that it has campaigned against the civil unions law by submitting testimony in opposition to the civil unions bills; providing public communications and outreach regarding the proposed bills; encouraging members of the public to contact specific legislators to express their opposition to civil unions; organizing an ongoing presence in the legislative galleries; organizing visits to individual legislative offices; coordinating a public rally demonstrating support for traditional marriage; coordinating an outreach to encourage former Governor Lingle to
amended to specify that the Legislature shall have the power to reserve marriage to opposite sex couples?” What exactly does this mean? If you vote “yes,” your vote will help support the definition of marriage between one man and one woman. If you vote “no,” or if you leave your ballot blank, your vote will help to redefine marriage to include homosexual couples. Don’t leave this important issue for someone else to decide. Do your part and register to vote. Then go to the polls on November Third. This message paid for by Hawaii Family Forum. Pls.’ Opp’n Ex. P.
9

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 10 of 34 PageID #: 771
veto a proposed civil unions bill in 2010; and coordinating an outreach to encourage Governor Abercrombie to veto the bill in 2011. Id. at 6-7.
HFF now seeks to intervene in this case to defend the constitutionality of § 572-1 and the marriage amendment (together, “Hawaii’s marriage laws”).6/
DISCUSSION The Federal Rules of Civil Procedure allow for the intervention of new parties into a case pursuant to Rule 24. Rule 24(a) governs intervention as of right and provides that, upon timely application, a court must allow a movant to intervene when the movant claims an interest in the action, the action may impair the movant’s ability to protect that interest, and existing parties do not adequately represent the movant’s interest. Rule 24(b) permits a court to allow a movant to intervene where the movant has a claim or defense sharing common questions of law or fact with the main action. In considering a motion to intervene, a district court is required to accept as true the non-conclusory allegations made in support of the motion and it may take notice of uncontroverted facts in pleadings and affidavits opposing intervention. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 819-20 (9th
6/The Court notes that at the hearing, HFF agreed not to seek any time extensions or cause delays in this suit.
10

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 11 of 34 PageID #: 772
Cir. 2001).
I. Intervention as of Right
A. Legal Standard7/
Pursuant to Federal Rule of Civil Procedure 24(a),
absent an applicable statute, a proposed intervenor as of right
must establish that four requirements are met: “(1) the
intervention application is timely; (2) the applicant has a
significant protectable interest relating to the property or
transaction that is the subject of the action; (3) the
disposition of the action may, as a practical matter, impair or
impede the applicant’s ability to protect its interest; and (4)
the existing parties may not adequately represent the applicant’s interest.”8/ Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir.
7/Plaintiffs contend “[i]nasmuch as this case concerns the constitutionality of Hawaii laws under federal law, it follows from Karcher [v. May, 484 U.S. 72 (1987),] that this Court should first look to Hawaii law, not Ninth Circuit law, to answer the question whether HFF may intervene.” Pls.’ Opp’n 9-10. In Karcher, the Supreme Court held that two former state legislative officers, who had intervened at the district court while presiding officers, did not have the right to appeal an adverse judgment on behalf of the state legislature after they lost their status as presiding officers. 484 U.S. at 81. The Supreme Court held that there was no need to vacate the district court judgment because the state legislative officers had authority under state law to represent the state’s interests in both the district court and court of appeals. Id. at 82. HFF has not claimed authority under state law to intervene on behalf of the state or state legislature. There is thus no need to consider state law in deciding the instant motion.
8/Rule 24(a) provides:
Upon timely motion, the court must permit anyone to intervene who:
11

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 12 of 34 PageID #: 773
2006) (internal quotations omitted). Although the burden is on the proposed intervenor to show that these four elements are met, the requirements are broadly interpreted in favor of intervention. Id. “In addition to mandating broad construction, [a court’s] review is guided primarily by practical considerations, not technical distinctions.” Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (internal quotations omitted).
B. Application HFF has met each requirement, and thus it is entitled
to intervene as of right; the Court will discuss each requirement in turn.
1. Timeliness of HFF’s Motion In evaluating timeliness, a court should consider “the stage of the proceeding, prejudice to other parties, and the reason for and length of the delay.” Idaho Farm Bureau Fed’n v. Babbit, 58 F.3d 1392, 1397 (9th Cir. 1995). HFF filed its motion to intervene less than three
(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction which is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. HFF does not contend that a federal statute gives it a right to intervene.
12

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 13 of 34 PageID #: 774
months after Plaintiffs filed their complaint and less than two weeks after Defendants filed their answers. Neither Plaintiffs nor Defendant Abercrombie has asserted that HFF’s Motion is untimely. At this stage in the proceedings, no dispositive issues have been raised or decided. In considering the same timing, the Ninth Circuit concluded: “The motion to intervene was made at an early stage of the proceedings, the parties would not have suffered prejudice from the grant of intervention at that early stage, and intervention would not cause disruption or delay in the proceedings. These are traditional features of a timely motion.” Citizens for Balanced Use, 647 F.3d at 897.
This Court finds that HFF’s motion is timely and thus HFF has met the first requirement for intervention as of right.
2. Significant Protectable Interest a. Framework
The second consideration is whether the applicant has a significant protectable interest in the action. “Whether an applicant for intervention as of right demonstrates sufficient interest in an action is a practical, threshold inquiry, and [n]o specific legal or equitable interest need be established.” Id. (alteration in original) (internal quotations omitted). “An applicant has a ‘significant protectable interest’ in an action if (1) it asserts an interest that is protected under some law and (2) there is a ‘relationship’ between its legally protected interest and the plaintiff’s claims.” Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998). “[T]he ‘interest’ test is
13

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 14 of 34 PageID #: 775
primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1496 (9th Cir. 1995) (internal quotations omitted) (abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1178 (9th Cir. 2011)).
b. Arguments HFF asserts that as a public interest group that vigorously supported the challenged laws, it has a protectable interest in the subject matter of the litigation. HFF’s Mot. 10. HFF asserts that its interest “runs far deeper than that of the public at large.” Id. at 13. It explains that it “has devoted substantial time, effort, and resources through its planning, productions, and payment for many TV and radio advertisements, campaign events, and materials, organization of many volunteers, successful legal defense of its campaign classification, testimony before the legislature, and fundraising.” Id. It further contends that it has “labored incessantly for the last fifteen years, all with the goal of enacting Hawaii’s marriage amendment and protecting Hawaii’s marriage law.” Id. at 13-14. Defendant Abercrombie argues that HFF did not actively support the enactment of § 572-1 or the marriage amendment and thus does not have a significant protectable interest in this action. Abercrombie’s Opp’n 13. Specifically, Defendant Abercrombie asserts that HFF could not have supported the enactment of § 572-1 because the provision was enacted in 1994,
14

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 15 of 34 PageID #: 776
before HFF formed in 1998. Id. at 15. Defendant Abercrombie argues that HFF does not have a protectable interest in the marriage amendment because HFF did not “actively support” its passage. Defendant Abercrombie relies on HFF’s admissions in proceedings before the Hawaii Campaign Spending Commission (“CSC”) that its radio advertisement was informational and not “express advocacy.” See id. at 16.
Plaintiffs assert that because HFF is tax-exempt under 26 U.S.C. § 501(c)(3), it may not claim the right to intervene on the basis of legislative lobbying. Pls.’ Opp’n 1-2, 8. Plaintiffs further contend that there is no support that HFF acted as an advocate for the marriage amendment and that, “[i]nstead, the evidence is that HFF’s role was small and informational in nature.” Id. at 4. Plaintiffs assert that HFF’s claimed expenditure of $150,000 represents only 9% of the total amount spent in support of the marriage amendment and that in contrast, Save Traditional Marriage (“STM”) spent about 88% in support of its passage. Id. Plaintiffs, like Defendant Abercrombie, also argue that HFF’s response to the complaint before the CSC establishes that HFF did not act as an advocate with respect to the marriage amendment. Id. at 5.
Plaintiffs assert that because HFF was incorporated in 1998, it cannot claim direct involvement in the 1994 amendment to § 572-1. Id. at 6. Plaintiffs contend that HFF could not have created a stake in § 572-1 or the marriage amendment through its actions opposing civil unions bills, asserting that “HFF’s claim
15

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 16 of 34 PageID #: 777
is contradicted by the fact that the subject of the civil union bills was entirely different from the subject of the ‘marriage amendment’ and Section 572-1.” Id. Plaintiffs assert that the marriage amendment and § 572-1 are about access to the legal title of marriage, while the exclusive concern of the civil union bills was access to the legal incidents of marriage. Id. at 21.
c. Application Under Ninth Circuit precedent, “[a] public interest group is entitled as a matter of right to intervene in an action challenging the legality of a measure it has supported.” Babbitt, 58 F.3d at 1397 (upholding intervention as of right by conservation group that had participated in the listing of endangered species in suit alleging violations of the Endangered Species Act); see Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir. 1983) (holding national wildlife organization had a right to intervene in a suit challenging the actions of the Interior Secretary in connection with the development of a bird conservation area when the organization had participated in the administrative process surrounding such development); Wash. State Bldg. & Constr. Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982) (holding that a public interest group that had sponsored an initiative statute was entitled to intervene as of right in suit challenging the constitutionality of the statute). The issue here is whether HFF, through its actions, sufficiently “supported” Hawaii’s marriage laws such that it has a significant protectable interest in the laws.
16

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 17 of 34 PageID #: 778
The Court first notes that the fact that HFF is tax-
exempt under § 501(c)(3) is not controlling. Plaintiffs have
failed to come forward with any case law or authority supporting
its contention that 501(c)(3) organizations are per se barred
from intervening in suits challenging legislation. HFF, in
contrast, has noted that in Smelt v. County of Orange, No.
SACV04-1042-GLT (C.D. Cal. Nov. 2, 2004), a case challenging the
federal Defense of Marriage Act, the district court allowed a
501(c)(3) public interest organization to intervene to defend the
law. See Doc. No. 40, Ex. A. Moreover, a 501(c)(3) organization
is restricted, but not prohibited, from engaging in lobbying
activities. See 26 U.S.C. § 501(h); Treas. Reg. § 1.501(h)-3(b).
It is possible for a 501(c)(3) organization to engage in lobbying
as a substantial part of its activities, at least for some years, and incur a tax penalty but remain a 501(c)(3) organization.9/ See 26 U.S.C. § 501(h);10/ Treas. Reg. § 1.501(h)-3.
9/In fact, for year 2009, HFF incurred a tax penalty of $20,741 because it exceeded its ceiling expenditure amount on lobbying by $82,965. See Pls.’ Opp’n 18 n.11 & Ex. G.
10/Section 501(h), titled “Expenditures by public charities to influence legislation” provides in part:
(1) General rule.--In the case of an organization to which this subsection applies, exemption from taxation under subsection (a) shall be denied because a substantial part of the activities of such organization consists of carrying on propaganda, or otherwise attempting, to influence legislation, but only if such organization normally--
17

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 18 of 34 PageID #: 779
HFF’s 501(c)(3) status is governed by the Internal Revenue Service and relates exclusively to its tax status. The “interest test” applicable here, however, “is not a clear-cut or bright-line rule.” S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002), modified on other grounds, 353 F.3d 648 (9th Cir. 2003). Rather, a court’s examination “is guided primarily by practical considerations, not technical distinctions.” Citizens for Balanced Use, 647 F.3d at 897. Accordingly, it is appropriate to consider the actual facts related to HFF’s activities, rather than merely HFF’s tax status.
HFF’s position before the CSC is also not controlling. HFF explains that “its arguments to the CSC and its use of the defined term ‘express advocacy’ were specific to the campaign spending rules, and nothing more.” HFF’s Reply 8. Furthermore, only one radio advertisement was at issue before the CSC, not all of HFF’s activities connected to the marriage amendment. See Pls.’ Opp’n Ex. O. Significantly, “express advocacy,” is a term used in First Amendment jurisprudence; the Ninth Circuit construes the term to contain the following three components: (1) “the message of the communication must be unmistakable and unambiguous, suggestive of one plausible meaning”; (2) “the
(A) makes lobbying expenditures in excess of the lobbying ceiling amount for such organization for each taxable year, or (B) makes grass roots expenditures in excess of the grass roots ceiling amount for such organization for each taxable year.
18

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 19 of 34 PageID #: 780
speech must present a clear plea for action”; and (3) “the action advocated by the communication must be clearly stated.” Cal. Pro-Life Council, Inc. v. Getman, 328 f.3d 1088, 1098 n.9 (9th Cir. 2003) (internal quotations omitted). The narrow definition of this term as used in First Amendment jurisprudence is not coterminous with “support” within the meaning of intervention jurisprudence, which directs district courts to follow “practical and equitable considerations” and to construe the requirements of Rule 24(a) “broadly in favor of proposed intervenors.” See Wilderness Soc., 630 F.3d at 1179. Accordingly, in considering whether HFF supported the marriage amendment, the Court will consider all of HFF’s actions related to the marriage amendment, including HFF’s motivations.
HFF asserts that “[o]pponents of the [marriage] amendment obviously understood that the intended effect of HFF’s ads was to support [its] passage.” HFF’s Reply 5. As the CSC advisory opinion which HFF relied on in forming its advertisements states, “[t]he disturbing consequences” of the “express advocacy” and “informational advocacy” distinction “is that it makes it possible for electioneering to proceed under the guise of education, thereby exempting it from the disclosure, disclaimer and contribution limit restrictions.” See Abercrombie’s Opp’n Ex. C. In practicality, that is what happened here.
Although not “express advocacy” within the meaning of campaign spending laws, HFF spent money and time in providing
19

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 20 of 34 PageID #: 781
information to the public in an effort to get the marriage amendment passed. HFF asserts that it “led a $150,000 campaign to educate voters – a substantial amount by anyone’s measure – using an educational strategy that it correctly believed would encourage voters to vote yes on the marriage amendment.” HFF’s Reply 12. No one disputes that HFF’s goal in such action was to get the marriage amendment passed.11/ HFF submitted an advertisement of the group “Protect Our Constitution/Human Rights Campaign” that shows the group understood HFF as a supporter of the marriage amendment. HFF’s Reply Ex. A. HFF also encouraged citizens to register to vote and provided voter registration information “[i]n order to get like-minded voters to the polls.” HFF’s Mot. 5. After the marriage amendment passed, HFF circulated memos to local churches “regarding the victory and highlighting continuing judicial and legislative challenges” to the “battle to preserve marriage between one man and one woman.” Id. & Ex. A. These actions demonstrate that HFF actively
11/HFF points out that Plaintiffs’ Exhibit N, a newspaper article from the Star-Bulletin dated October 31, 1998, gives insight into their strategy. See HFF’s Reply 8 n.4. The article states that many citizens found the ballot language confusing and that research polls revealed that more citizens favored limiting marriage to those relationships between a man and woman than those who voted yes on the proposed ballot language when not told what a “yes” and “no” vote meant. See Pls.’ Opp’n Ex. N. HFF contends this reveals how their explanation of the meaning of a yes and no vote supported passage of the amendment “without needing to explicitly advocate a yes vote.” HFF’s Reply 8 n.4.
20

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 21 of 34 PageID #: 782
supported the marriage amendment.12/
HFF need not demonstrate that it has the most
substantial interest vis-a-vis other groups that supported the
marriage amendment. HFF’s Reply 12. HFF explains that if that
were the case, in situations where the lead supporter had
dissolved shortly after it succeeded in getting legislation
passed, as was done here with STM, there would be no potential
interveners. Id. at 11-12. Although an “undifferentiated,
generalized interest” in the outcome of a proceeding is
insufficient, see S. Cal. Edison Co., 307 F.3d at 803, HFF has
shown that through its actions supporting Hawaii’s marriage laws,
it has a greater and different interest than the public at large.
In Tucson Women’s Center v. Arizona Medical Board, Civ.
No. 09-1909, 2009 WL 4438933 (D. Ariz. 2009), the district court
disagreed with the plaintiff’s argument that because the
intervenor-applicant group had not taken a leadership role in
12/Plaintiffs cite Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996), for the proposition that [u]nless [HFF] can show direct involvement in the ‘marriage amendment,’ its motion must fail.” Pls.’ Opp’n 20. In Glickman, the Ninth Circuit merely noted, however, that the cases in which public interest groups had intervened generally share the common thread that they had been directly involved in the enactment of the law or in the administrative proceedings. Glickman, 82 F.3d at 837. The court followed this observation with the statement that “we do not here rule out the possibility that a public interest organization might adduce sufficient interest to intervene even where it had not participated in or supported the legislation.” Id. at 838. Here, the Court concludes that HFF had “direct involvement” in the enactment of the marriage amendment through its efforts supporting the passage of the amendment.
21

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 22 of 34 PageID #: 783
supporting challenged legislation, it was not “sufficiently ‘active’ to warrant intervention.” Id. at *4. The court stated that because the group actively supported the challenged law by providing testimony before a legislative committee “it cannot conclude that this active support fell below some unspecified level of sufficiency.” Id. Here too, HFF’s active support for the marriage amendment – through producing and paying for radio, tv, and newspaper advertisements to provide the public information as to what the ballot meant, and encouraging likeminded citizens to vote – is not nullified by the fact that other groups spent more money supporting the amendment.
HFF also asserts that it actively supported H.R.S. § 572-1 through its opposition to various civil union bills because it believed the introduction of civil unions would threaten marriage as defined in § 572-1. HFF.’s Reply 2, 12-13. The Court need not decide if this opposition alone would confer a significant protectable interest in the challenged laws to HFF. The laws challenged in the Amended Complaint - the marriage amendment and § 572-1 – are interrelated because the marriage amendment insulated the challenged portion of § 572-1 from state constitutional attack. Furthermore, Plaintiffs have put the civil unions law at issue in this case through relying on it for some of their allegations in the Amended Complaint (generally asserting that because under the civil unions law partners are given all the state law benefits of marriage, denying them the right to marry under § 572-1 does not have a rational purpose and
22

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 23 of 34 PageID #: 784
“is purely an act of discrimination based upon the sex and sexual preferences of same sex couples”). See Am. Compl. ¶¶ 70-78. The laws will not be viewed in isolation by the Court. Accordingly, the Court concludes that HFF’s significant protectable interest in the marriage amendment is sufficient to meet the third requirement of intervention as of right.
Although there is no bright-line rule regarding the level of interest required to support a right to intervene, HFF through its actions aimed at getting the marriage amendment ratified and ensuring that the definition of marriage as set forth in § 572-1 is not changed, has “actively supported” Hawaii’s marriage laws such that it has a significant protectable interest in this case.
3. Impairment of the Ability to Protect the Intervenor’s Interest
HFF has shown that it has a significant protectable interest and thus the Court must determine whether its interest would as a practical matter be impaired or impeded by the disposition of this suit. See Berg, 268 F.3d at 821. The Ninth Circuit instructs that “‘[i]f an absentee would be substantially affected in a practical sense by the determination made in an action, [it] should, as a general rule, be entitled to intervene.’” Id. (first alteration in original) (quoting Fed. R. Civ. P. 24 advisory committee’s notes). Generally, after determining that the applicant has a protectable interest, courts
23

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 24 of 34 PageID #: 785
have “little difficulty concluding” that the disposition of the case may affect such interest. Lockyer v. United States, 450 F.3d 436, 442 (9th Cir. 2006).
HFF contends that if it is not allowed to intervene, not only will it be harmed by having no legal means to challenge an adverse holding, it will suffer practical harm if laws that it has campaigned for fifteen years to enact and protect are invalidated. HFF’s Mot. 14-15. It asserts that an adverse ruling could impair its interest “by undoing all that it has done on behalf of many Hawaiian citizens to obtain and protect [Hawaii’s marriage] laws.” Id. at 15-16.
The Ninth Circuit has held that an adverse court decision on a measure that a public interest group has supported may, as a practical matter, impair the interest held by the public interest group. Prete, 438 F.3d 954. Here, an adverse decision would impair HFF’s interest in preserving § 572-1 and the marriage amendment. Thus, HFF has met the third requirement for intervention as of right.
4. Adequacy of Representation The burden of establishing inadequacy of representation is a minimal one. The Ninth Circuit has stressed that “intervention of right does not require an absolute certainty . . . that existing parties will not adequately represent [the applicant’s] interests.” Citizens for Balanced Use, 647 F.3d at 900. Rather, the movant satisfies his burden by showing
24

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 25 of 34 PageID #: 786
representation of his interest “may be” inadequate. Id. A presumption of adequacy arises when the applicant and
an existing party share the same ultimate objective. Id. at 898. There is also a presumption that the government adequately represents its constituency when it is acting on their behalf. Id. To rebut one or either of these presumptions, an applicant must make a compelling showing of inadequacy. Id. In assessing whether a party has sufficiently rebutted a presumption of adequacy, the Court consider several factors, including “(1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 952 (9th Cir. 2009) (internal quotations omitted).
HFF points to a press release by Defendant Abercrombie, in which he states that Hawaii’s law allowing only heterosexual couples to marry is “inequality, and [he] will not defend it.”13/ See HFF’s Mot. 16; Abercrombie’s Opp’n Ex. A. HFF asserts that “intervention is especially warranted when a defending official
13/The Court notes that the press release states that Defendant Abercrombie is defending against Plaintiffs’ civil rights claim arising under 42 U.S.C. § 1983. Abercrombie’s Opp’n Ex. A. Defendant Abercrombie also asserts that he will defend “the state against any money damages claims.” Id.
25

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 26 of 34 PageID #: 787
seeks the same legal outcome as the plaintiff.” HFF’s Mot. 16. HFF asserts that although Defendant “Fuddy announced that ‘[b]ecause I am being sued for administering the law, I will also defend it,’” her interests are “fundamentally different and weaker than those of HFF’s.” HFF’s Mot. 19.
Plaintiffs assert that Director Fuddy will adequately represent HFF’s interest. They contend that HFF and Director Fuddy have identical interest - to defend the law restricting the legal status of marriage to opposite-sex couples – and therefore a presumption of adequacy arises. Pls.’ Opp’n 25. Defendant Abercrombie similarly argues that a presumption of adequacy arises because Director Fuddy and HFF have identical interest, i.e., “the same ‘ultimate objective’ – defending the constitutionality of HRS § 572-1 and Article 1, Section 23.” Abercrombie’s Opp’n 6. He asserts that a second presumption, or strengthened first presumption, arises because Director Fuddy is a State defendant. Id. Defendant Abercrombie asserts that HFF has failed to make a compelling showing to rebut the presumption of adequacy “because there is no indication in this case that Defendant Fuddy will do anything other than fully defend the challenged law.” Id.
Here, there is no doubt that Defendant Abercrombie will not represent HFF’s interest. He declines to defend the constitutionality of Hawaii’s statute limiting marriage to
26

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 27 of 34 PageID #: 788
relationships between a man and woman and states that the marriage amendment does not violate the federal Constitution under his construction that it “merely provides that under the Hawaii State Constitution, and only under the Hawaii State Constitution, the Legislature has the power to reserve marriage to opposite sex couples.” Abercrombie’s Answer 2-3. In contrast, HFF contends that § 572-1 and the marriage amendment are constitutional. HFF’s Mot. 17. Thus, the disputed issue here is whether Director Fuddy will adequately represent HFF’s interest.
Even assuming a presumption of adequacy applies, HFF has sufficiently rebutted that presumption with the unique circumstances of the two defendants in this case. That is, Defendant Fuddy and Defendant Abercrombie, members of the state executive branch sued in their official capacities, have taken opposing positions in this case.
In Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir. 1983), the Ninth Circuit concluded that Interior Secretary Watt might not have adequately represented the interest of a national wildlife organization that sought to intervene as a defendant. The plaintiff was a non-profit organization that brought suit challenging the legality of actions taken by the former Interior Secretary. Id. at 526. The Ninth Circuit explained that several facts supported that Watt may not
27

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 28 of 34 PageID #: 789
adequately represent the proposed intervenor’s interest, including that the proposed intervenor had expertise apart from that of Watt, the proposed intervenor offered a perspective which differed materially from Watt, and that Watt had formerly served as the head of the organization that was representing the plaintiff in the action. Id at 528.
Here too, although a government official is the defendant in this case, it is an atypical situation. Director Fuddy is appointed by, under the supervision of, and subject to removal by Governor Abercrombie. See Haw. Const. Art. V, § 6. Defendant Abercrombie not only declines to defend § 572-1 in this case, but affirmatively states to the Court that it is unconstitutional. Moreover, Defendant Abercrombie has publicly stated that in so far as Hawaii’s law allows only opposite-sex couples to marry, it is “inequality, and [he] will not defend it.” Abercrombie’s Opp’n Ex. A. This posture places Defendant Fuddy in the strange position of advancing an opposing position on this divisive issue. Additionally, the Attorney General, also appointed by Governor Abercrombie, is representing both Director Fuddy and Governor Abercrombie. See Haw. Const. Art. V, § 6. The Attorney General’s Office has assigned separate legal teams to the two defendants and has put up a “wall” between them. See Abercrombie’s Opp’n Ex. A. Although the Court does not doubt the sincerity or competence of Defendant Fuddy’s attorneys, it cannot
28

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 29 of 34 PageID #: 790
conclude that Defendant Abercrombie’s position will have no effect on the legal arguments or strategies that they set forth. See id.
In light of this odd posture, the three considerations set forth above weigh in favor of the conclusion that HFF may not be adequately represented by Defendant Fuddy. With regard to the first and second factors, given that Defendant Fuddy is taking an opposing position to that of the Governor whom she serves under, the Court cannot conclude that her interest “is such that [she] will undoubtedly make all of a proposed intervenor’s arguments,” or that she “is capable and willing to make such arguments.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). This is particularly so in light of the sensitive issues and strong beliefs surrounding same-sex marriage.
HFF also meets the third factor as it may offer a perspective not shared with and potentially neglected by Defendant Fuddy. See id. Defending Hawaii’s marriage laws will require Defendant Fuddy to advance arguments as to what Plaintiffs refer to as the core issue of this case - “the State’s rationale for denying Plaintiffs the legal status of marriage.” Pls.’ Opp’n 29. Given the current posture of the case, it is a possibility that HFF, as a public interest group that has advocated for Hawaii’s marriage laws and is not constrained by political considerations, will advance broader and more
29

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 30 of 34 PageID #: 791
comprehensive rationales. Defendant Fuddy herself notes that “it is vitally important that the court have the benefit of the broadest, most comprehensive, and best discussion of the issue possible.” Fuddy’s Mem. 2. Thus, HFF may offer a perspective not shared by Defendant Fuddy.
HFF has rebutted the presumption of adequate representation by making a compelling showing that “representation of its interests ‘may be’ inadequate.” Arakaki, 324 F.3d at 1086; see Citizens for Balanced Use, 647 F.3d at 901 (“[W]e cannot conclude that the Forest Service will undoubtedly make all of Applicants’ arguments, nor can we be assured that the Forest Service is capable of making and willing to make such arguments. Even if we applied a presumption of adequate representation, that presumption was persuasively rebutted by Applicants’ presentation.”); HRPT Props. Trust v. Lingle, Civ. No. 09-00375 SOM-KSC, Doc. No. 41 (Order Granting Citizen for Fair Valuation’s Motion to Intervene) (D. Haw. Oct. 21, 2009) (determining public interest group that had sponsored and advocated for a challenged law offered a perspective not shared by the Governor and thus had met their burden to show that its interest may not be adequately represented).
Accordingly, HFF has established that it has a right to intervene in this suit. II. Permissive Intervention
30

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 31 of 34 PageID #: 792
HFF also moves for permissive intervention.14/ Rule 24(b)(1) provides that “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.”15/ The Ninth Circuit has “often stated that permissive intervention requires (1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between the movant’s claim or defense and the main action.” Freedom From Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (internal quotations omitted). “In exercising its discretion the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). When a proposed intervenor has otherwise met the requirements, “[t]he court may also consider other factors in the exercise of its discretion, including the nature and extent of the intervenors’ interest and whether the intervenors’ interests are adequately represented by other parties.” Perry, 587 F.3d at 955 (internal quotations omitted).
14/Although it is unnecessary to consider HFF’s request for permissive intervention because the Court has found HFF is entitled to intervene as of right, the Court grants permissive intervention in the alternative.
15/Rule 24(b)(1) also provides that a court may permit anyone to intervene who is given a conditional right to intervene by federal statute. HFF has not asserted there is an applicable statute.
31

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 32 of 34 PageID #: 793
Plaintiffs assert that because HFF does not have a significant protectable interest in Hawaii’s marriage laws, it does not have independent grounds for jurisdiction. They contend that without making such a showing, permissive intervention is not permitted. Pls.’ Opp’n 27. Plaintiffs do not contest that HFF’s motion was timely or that there is a common question of law and fact with HFF’s proposed defense and the main action. Plaintiffs assert, however, that they are concerned that HFF’s participation will prolong the case, add to its costs, and inject issues extraneous to its resolution. Id. at 29.
Defendant Abercrombie argues that the Court should not allow HFF to permissively intervene because Defendant Fuddy adequately represents HFF’s interest. Abercrombie’s Opp’n 23. He further contends that HFF’s intervention will likely prolong or delay the litigation and increase the burdens and costs on the Court and parties. Id. at 24.
In Freedom From Religion Foundation, Inc. v. Geithner, 644 F.3d 836 (9th Cir. 2011), the Ninth Circuit explained that the independent ground for jurisdiction requirement stems from the concern that intervention might be used to enlarge inappropriately the jurisdiction of district courts. Id. at 843. This concern “manifests itself most concretely” in diversity cases where proposed intervenors seek to litigate state law claims over which the district court would not otherwise have
32

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 33 of 34 PageID #: 794
jurisdiction. Id. In federal-question cases, however, the jurisdictional requirement only prevents the enlargement of federal jurisdiction where the proposed-intervenor seeks to bring state-law claims into the suit. Id. Based on these recognitions, the Ninth Circuit “clarif[ied] that the independent jurisdictional grounds requirement does not apply to proposed intervenors in federal-question cases when the proposed intervenor is not raising new [state-law] claims.” Id. The laws at issue in this suit are challenged under federal law. HFF seeks to intervene to defend the laws, not assert any new claims. Thus the independent jurisdictional requirement is inapplicable.
HFF has met the requirements for permissive intervention and the Court will exercise its discretion to allow it to intervene. As discussed supra, HFF has filed a timely motion. HFF seeks to intervene to defend the constitutionality of Hawaii’s marriage laws. Because this is the precise issue raised by Plaintiffs’ claims, there are common questions of law and fact between HFF’s defense and the main issues of the case. Additionally, HFF’s intervention in this suit will not unduly delay the proceedings or prejudice the parties. HFF’s participation will not complicate the issues or inject new claims into the suit. Rather, HFF’s presence will contribute to the full development and analysis of the issues in this action. Plaintiffs need not be concerned about HFF injecting extraneous
33

Case 1:11-cv-00734-ACK-KSC Document 43 Filed 05/02/12 Page 34 of 34 PageID #: 795
issues into this case as the Court is capable of preventing the introduction of such issues.
HFF has shown that it has an interest in Hawaii’s marriage laws and that the existing parties may not adequately represent that interest. Thus, the Court exercises its discretion to allow HFF to permissively intervene in this suit.
CONCLUSION For the foregoing reasons, the Court GRANTS HFF’s Motion to Intervene. IT IS SO ORDERED. DATED: Honolulu, Hawaii, May 2, 2012.
________________________________ Alan C. Kay Sr. United States District Judge
Natasha N. Jackson, et al. v. Neil S. Abercrombie, et al., Civ. No. 1100734 ACK-KSC; Order Granting Hawaii Family Forum’s Motion to Intervene
34

 
 Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 1 of 120 PageID #: 2886

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

NATASHA N. JACKSON, JANIN KLEID,)

and GARY BRADLEY,

)

)

Plaintiffs,

)

)

v.

)

)

NEIL S. ABERCROMBIE, Governor, )

State of Hawaii, and LORETTA J. )

FUDDY, Director of Health, State)

of Hawaii,

)

)

Defendants.

)

)

and

)

)

HAWAII FAMILY FORUM,

)

)

Defendant-Intervenor. )

)

)

Civ. No. 11-00734 ACK-KSC

ORDER GRANTING HFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT FUDDY’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT AND HFF’S MOTION TO DISMISS DEFENDANT ABERCROMBIE, AND DENYING AS MOOT DEFENDANT ABERCROMBIE’S MOTION
FOR SUMMARY JUDGMENT

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 2 of 120 PageID #: 2887
TABLE OF CONTENTS SYNOPSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL BACKGROUND.. . . . . . . . . . . . . . . . . . . . . 7 FACTUAL BACKGROUND .. . . . . . . . . . . . . . . . . . . . . 11 I. Same-Sex Marriage in Hawaii .. . . . . . . . . . . . . . 11 II. Same-Sex Marriage Nationwide . . . . . . . . . . . . . . 18 III. Federal Defense of Marriage Act .. . . . . . . . . . . . 22 IV. The Parties in This Case.. . . . . . . . . . . . . . . . 24 STANDARD .. . . . . . . . . . . . . . . . . . . . . . . . . . 25 DISCUSSION .. . . . . . . . . . . . . . . . . . . . . . . . . 28 I. Defendant Abercrombie’s Status as a Party .. . . . . . . 28
A. Sovereign Immunity .. . . . . . . . . . . . . . . . 29 B. Article III.. . . . . . . . . . . . . . . . . . . . 31 II. Baker v. Nelson .. . . . . . . . . . . . . . . . . . . . 35 A. The Due Process Claim.. . . . . . . . . . . . . . . 39 B. The Equal Protection Claim .. . . . . . . . . . . . 40 III. The Merits of Plaintiffs’ Claims . . . . . . . . . . . . 43 A. Perry v. Brown .. . . . . . . . . . . . . . . . . . 44 B. Romer v. Evans .. . . . . . . . . . . . . . . . . . 53 C. Plaintiffs’ Due Process Claim . . . . . . . . . . . 57
1. Description of the Asserted Fundamental Right .. . . . . . . . . . . . . . . . . . . . 59
2. The Nation’s History and Tradition.. . . . . . 63 D. Plaintiffs’ Equal Protection .. . . . . . . . . . . 68
1. Gender Discrimination .. . . . . . . . . . . . 69 2. Sexual Orientation Discrimination .. . . . . . 70

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 3 of 120 PageID #: 2888
E. Rational Basis Review . . . . . . . . . . . . . . . 79 1. Standard.. . . . . . . . . . . . . . . . . . . 79 2. Application .. . . . . . . . . . . . . . . . . 86 a. Plaintiffs’ and Defendant Abercrombie’s Overarching Arguments.. . . . . . . . . . 88 i. The Relevant Question .. . . . . . . 88 ii. Effect of the Civil Unions Law.. . . 90 b. Encouraging the Stability of Relationships that Have the Ability to Procreate Naturally.. . . . . . . . . . . . . . . . 98 c. Promoting the Ideal, Where Possible, Children Are Raised by Their Mother and Father in a Stable Relationship.. . . . . 105 d. Cautiously Experimenting With Social Change .. . . . . . . . . . . . . . . . . 111
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 116
ii

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 4 of 120 PageID #: 2889
SYNOPSIS This action is one of multiple lawsuits that have been filed in state and federal courts seeking to invalidate laws that reserve marriage to those relationships between a man and woman. Specifically, Plaintiffs’ complaint asserts that Article 1, Section 23 of the Hawaii Constitution, which provides that “[t]he legislature shall have the power to reserve marriage to oppositesex couples,” and Hawaii Revised Statutes § 572-1, which states that marriage “shall be only between a man and a woman,” violate the Due Process and Equal Protection Clauses of the United States Constitution. The Court is mindful of the Supreme Court’s cautionary note that “[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Thus, “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). “This note of caution is especially important in cases . . . where moral and personal passions run high and where there is great risk that ‘the liberty protected by the Due Process Clause [will] be subtly transformed into the policy preferences’ of unelected judges.” Log Cabin Republicans v. United States, 658 F.3d 1162, 1174 (9th Cir. 2011)

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 5 of 120 PageID #: 2890
(O’Scannlain, J., concurring) (second alteration in original) (quoting Glucksberg, 521 U.S. at 720). In discussing the importance of judicial restraint in certain circumstances, the Hawaii Supreme Court has likewise acknowledged the need to “recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislative accordingly.” Bissen v. Fujii, 466 P.2d 429, 431 (Haw. 1970).
For the reasons set forth herein, Plaintiffs’ claims are foreclosed by the Supreme Court’s summary dismissal for want of a substantial federal question in Baker v. Nelson, 409 U.S. 810 (1972) (mem.). In Baker, the Supreme Court dismissed an appeal from the Minnesota Supreme Court’s decision holding that a Minnesota statute that defined marriage as a union between persons of the opposite sex did not violate the First, Eighth, Ninth, and Fourteenth Amendments of the federal Constitution. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). Alternatively, Plaintiffs’ claims fail on the merits.
The Court first notes that Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), a case in which the Ninth Circuit held that an amendment to the California Constitution that stated “[o]nly
2

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 6 of 120 PageID #: 2891
marriage between a man and a woman is valid or recognized in California” (“Proposition 8”) violated the Equal Protection Clause of the United States Constitution, does not control this case. The Ninth Circuit repeatedly asserted that its holding was limited to the unique facts of California’s same-sex marriage history, i.e., “California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.” Id. at 1064 (“We need not and do not answer the broader question in this case . . . [The] unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.”). No same-sex couples have been married in Hawaii nor have ever had the legal right to do so. Thus the legislature’s amendment to § 572-1 and Hawaii’s marriage amendment did not take away from same-sex couples the designation of marriage while leaving in place all of its incidents as Hawaii, unlike California, did not have a civil unions law at the time the legislature amended § 572-1 or when the people ratified the marriage amendment. Consequently, this case does not involve the same unique facts determined dispositive in Perry.
Carefully describing the right at issue, as required by both the Supreme Court and Ninth Circuit, the right Plaintiffs
3

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 7 of 120 PageID #: 2892
seek to exercise is the right to marry someone of the same-sex. See Glucksberg, 521 U.S. at 721; Raich v. Gonzales, 500 F.3d 850, 863-64 (9th Cir. 2007). The right to marry someone of the samesex, is not “objectively, deeply rooted in this Nation’s history and tradition” and thus it is not a fundamental right. See Glucksberg, 521 U.S. at 720-21 (“[w]e have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ . . . This approach tends to rein in the subjective elements that are necessarily present in due-process judicial review”) (citations omitted); In re Kandu, 315 B.R. 123, 140 (Bankr. W.D. Wash. 2004) (holding that because same-sex marriage is not deeply rooted in the history and tradition of our Nation, it is not a fundamental right). Because a fundamental right or suspect classification is not at issue, Plaintiffs’ due process claim is subject to rational basis review.
Plaintiffs’ equal protection claim is also subject to rational basis review. Hawaii’s marriage laws do not treat males and females differently as a class; consequently, the laws do not discriminate on the basis of gender. The United States Supreme Court has never held that heightened scrutiny applies to classifications based on sexual orientation and every circuit that has addressed this issue, i.e., all circuits but the Second
4

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 8 of 120 PageID #: 2893
and Third Circuits, have unanimously declined to treat sexual orientation classifications as suspect. See Romer v. Evans, 517 U.S. 620 (1996) (applying rational basis review to a classification based on sexual orientation); infra, n.25 (collecting circuit court cases). Significantly, the Ninth Circuit, which is binding authority on this Court, has affirmatively held that homosexuals are not a suspect class. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir. 1990).
Rational basis review is the “paradigm of judicial restraint.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993). Under rational basis review, a law is presumed constitutional and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (alteration in original) (internal quotations omitted). Rational basis review does not authorize “the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Id. at 319 (alteration in original) (internal quotations omitted).
Plaintiffs have failed to meet their burden. Specifically, the legislature could rationally conclude that defining marriage as a union between a man and woman provides an
5

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 9 of 120 PageID #: 2894
inducement for opposite-sex couples to marry, thereby decreasing the percentage of children accidently conceived outside of a stable, long-term relationship. The Supreme Court has stated that a classification subject to rational basis review will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Johnson v. Robison, 415 U.S. 361, 382-83 (1974). It is undisputed opposite-sex couples can naturally procreate and samesex couples cannot. Thus, allowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so.
The legislature could also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex. Under rational basis review, as long as the rationale for a classification is at least debatable, the classification is constitutional. Both sides presented evidence on this issue and both sides pointed out flaws in their opponents’ evidence. Thus, the Court concludes this rationale is at least debatable and therefore sufficient.
Finally, the state could rationally conclude that it is addressing a divisive social issue with caution. In 1997, the legislature extended certain rights to same-sex couples through the creation of reciprocal-beneficiary relationships. In 2011, the legislature passed a civil unions law, conferring all of the
6

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 10 of 120 PageID #: 2895
state legal rights and benefits of marriage (except the title marriage) on same-sex couples who enter into a civil union. In this situation, to suddenly constitutionalize the issue of samesex marriage “would short-circuit” the legislative actions with regard to the rights of same-sex couples that have been taking place in Hawaii. See Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 72-73 (2009).
Accordingly, Hawaii’s marriage laws are not unconstitutional. Nationwide, citizens are engaged in a robust debate over this divisive social issue. If the traditional institution of marriage is to be restructured, as sought by Plaintiffs, it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.
PROCEDURAL BACKGROUND On December 7, 2011, Plaintiffs Natasha N. Jackson and Janin Kleid filed suit against Hawaii Governor Neil S. Abercrombie and Loretta J. Fuddy, Director of Hawaii’s Department of Health. Doc. No. 1. On January 27, 2012, Plaintiffs filed a First Amended Complaint (“Am. Compl.”), adding Gary Bradley as a plaintiff (collectively with Jackson and Kleid, “Plaintiffs”) and expanding their claims. Doc. No. 6. Specifically, Plaintiffs
7

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 11 of 120 PageID #: 2896
challenge Hawaii Revised Statutes (“H.R.S.”) § 572-1, which states that a valid marriage contract shall be only between a man and woman, and Article I, Section 23 of the Hawaii Constitution (the “marriage amendment”), which provides that “[t]he legislature shall have the power to reserve marriage to oppositesex couples.” Plaintiffs assert that these two laws (together, “Hawaii’s marriage laws”) violate the Equal Protection and Due Process Clauses of the United States Constitution. Am. Compl. ¶¶ 94-104.
On February 21, 2012, Defendant Fuddy and Defendant Abercrombie filed separate answers to the Amended Complaint. Doc. Nos. 9 & 10. In his answer, Defendant Abercrombie stated that he “admits that to the extent HRS § 572-1 allows opposite sex couples, but not same sex couples, to get married, it violates the Due Process Clause and Equal Protection Clause of the United States Constitution.” Doc. No. 9, at 2. In Defendant Fuddy’s answer, she denies that § 572-1 and the marriage amendment violate the Constitution. Doc. No. 10, at 6-7.
On March 1, 2012, Hawaii Family Forum (“HFF”) filed a motion to intervene in this case as a defendant. Doc. No. 15. HFF also filed a proposed answer denying that Hawaii’s marriage laws are unconstitutional. Doc. No. 16. On May 2, 2012, the Court granted HFF’s motion to intervene. Doc. No. 43.
On June 15, 2012, Defendant Fuddy filed a motion for
8

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 12 of 120 PageID #: 2897
summary judgment (“Defendant Fuddy’s Motion”), accompanied by a supporting memorandum (“Fuddy’s Mot. Mem.”) and a concise statement of facts (“Fuddy’s CSF”). Doc. Nos. 63 & 64. The same day, Plaintiffs filed a motion for summary judgment (“Plaintiffs’ Motion”), accompanied by a supporting memorandum (“Pls.’ Mot. Mem.”) and concise statement of facts (“Pls.’ CSF”). Doc. Nos. 65 & 66. Also on June 15, 2012, HFF filed a motion for summary judgment and to dismiss Defendant Abercrombie (“HFF’s Motion”), accompanied by a supporting memorandum (“HFF’s Mot. Mem.”) and a concise statement of facts (“HFF’s CSF”). Doc. Nos. 67 & 68.
On June 29, 2012, Defendant Abercrombie filed a countermotion for partial summary judgment (“Abercrombie’s Countermotion”). Doc. No. 92. Defendant Abercrombie filed a single memorandum in support of the Countermotion, in response to Plaintiffs’ Motion, and in opposition to HFF and Defendant Fuddy’s motions (“Abercrombie’s Mot. Mem.”). Id. Defendant Abercrombie also filed a concise statement of facts in support of the Countermotion (“Abercrombie’s CSF”), a response to Defendant Fuddy’s CSF, a response to HFF’s CSF, and a response to Plaintiffs’ CSF. Doc. Nos. 89-91, 93.
On June 29, 2012, Defendant Fuddy filed an opposition to Plaintiffs’ Motion (“Fuddy’s Opp’n”), a response to Plaintiffs’ CSF, and a statement of no opposition to HFF’s Motion. Doc. Nos. 78-80. The same day, HFF filed an opposition
9

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 13 of 120 PageID #: 2898
to Plaintiffs’ Motion (“HFF’s Opp’n”), a response to Plaintiffs’ CSF, and a statement of no opposition to Defendant Fuddy’s Motion. Doc. Nos. 82, 84, & 85.
Plaintiffs filed a single memorandum in opposition to HFF and Defendant Fuddy’s motions on June 29, 2012 (“Pls.’ Opp’n”). Doc. No. 86. Plaintiffs also filed a combined response to Defendant Fuddy’s CSF and HFF’s CSF (“Pls.’ Resp. to CSFs”). Doc. No. 87.
On June 29, 2012, Equality Hawaii and Hawaii LGBT Legal Association (“Equality Hawaii”) filed a motion for leave to file brief of amici curiae. Doc. No. 83. Equality Hawaii submitted a proposed brief in support of Plaintiffs’ Opposition (“Equality Hawaii’s Br.”).1/ Id. On July 2, 2012, the Court granted Equality Hawaii’s Motion. Doc. No. 94.
On July 10, 2012, Defendant Fuddy filed a response to Defendant Abercrombie’s CSF and a combined memorandum in opposition to Defendant Abercrombie’s Countermotion and reply to Plaintiffs’ Opposition (“Fuddy’s Reply”). Doc. Nos. 99 & 100. On July 10, 2012, HFF filed a combined memorandum opposing Defendant Abercrombie’s Countermotion and replying to Plaintiffs’ Opposition (“HFF’s Reply”), along with a response to Defendant Abercrombie’s CSF. Doc. Nos. 101 & 102. Also on July 10, 2012,
1/Plaintiffs joined the position set forth by Hawaii Equality in their brief. See Pls.’ Opp’n 4.
10

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 14 of 120 PageID #: 2899
Plaintiffs filed a reply to HFF’s Opposition (“Pls.’ Reply to HFF”), a reply to Defendant Fuddy’s Opposition (“Pls.’ Reply to Fuddy”), and a statement of no opposition to Defendant Abercrombie’s Countermotion. Doc. Nos. 103-05. On July 17, 2012, Defendant Abercrombie filed a reply in support of his countermotion (“Abercrombie’s Reply”). Doc. No. 108.
On July 24, 2012, the Court held a hearing on Plaintiffs’ Motion, Defendant Fuddy’s Motion, HFF’s Motions, and Defendant Abercrombie’s Countermotion.
FACTUAL BACKGROUND I. Same-Sex Marriage in Hawaii
In Hawaii, same-sex marriage has been the subject of litigation and legislation for years. In May 1991, several samesex couples filed a lawsuit seeking a declaration that § 572-1 violated the equal protection, due process, and privacy components of the Hawaii Constitution in so far as it had been interpreted and applied by the Hawaii Department of Health to deny marriage licenses to same-sex couples. See Baehr v. Lewin, 852 P.2d 44, 48-49 (Haw. 1993). The trial court rejected the plaintiffs’ claims and granted a motion for judgment on the pleadings in favor of the defendants. See id. at 52.
On appeal, the Hawaii Supreme Court, relying on federal case law, held that there is no fundamental right to marriage for same-sex couples under the Hawaii Constitution “arising out of
11

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 15 of 120 PageID #: 2900
the right to privacy or otherwise.” Id. at 57. A plurality of
the Hawaii Supreme Court held that the Hawaii statute restricting
marriage to opposite-sex couples discriminates on the basis of
sex, which constitutes a suspect category for purposes of equal
protection analysis under the Hawaii Constitution.2/ Id. at 63-
67. Because the trial court had reviewed the marriage laws for a
rational basis, the Hawaii Supreme Court remanded to the trial
court to review it under the strict scrutiny standard that
applies to suspect categories. Id. at 68-69.
On December 3, 1996, on remand, the trial court ruled
2/In explaining its decision that statutes discriminating on the basis of sex are subject to strict scrutiny, the plurality in Baehr stated that:
The equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another. The fourteenth amendment to the United States Constitution somewhat concisely provides, in relevant part, that a state may not ‘deny to any person within its jurisdiction the equal protection of the laws.’ Hawaii’s counterpart is more elaborate. Article I, section 5 of the Hawaii Constitution provides in relevant part that ‘[n]o person shall . . . be denied the equal protection of the laws, nor be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry.’ (Emphasis added.) Thus, by its plain language, the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex.
Baehr, 852 P.2d at 59-60 (alteration in original).
12

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 16 of 120 PageID #: 2901
that § 572-1 violated the equal protection component of the Hawaii Constitution. See Baehr v. Miike, Civ. No. 91-13945, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996). Consequently, the court ordered that the state could not deny an application for a marriage license solely because the applicants were the same sex. Id. at *22. The trial court suspended the implementation of his decision, however, to provide time for the case to be reviewed by the Hawaii Supreme Court. See Baehr v. Miike, Civ. No. 91-13945, Doc. No. 190 (Dec. 12, 1996).
Meanwhile, in 1994, the legislature responded to the Hawaii Supreme Court’s remand in Baehr by amending § 572-1 to clarify the legislature’s intention that marriage should be limited to those of the opposite-sex. Act of June 22, 1994, No. 217, 1994 Haw. Sess. Laws 526 (codified as amended at Haw. Rev. Stat. § 572-1). The legislature did so by adding the following underlined language to § 572-1: “In order to make valid the marriage contract, which shall be only between a man and a woman. . . .” Id. The preface to the House bill, H.B. No. 2312, set forth the legislature’s findings and purpose. The legislature stated that the Hawaii Supreme Court’s Baehr opinion “effaces the recognized tradition of marriage in this State and, in so doing, impermissibly negates the constitutionally mandated role of the legislature as a co-equal, coordinate branch of government.” 1994 Hawaii Laws Act 217, H.B. 2312, § 1. Specifically, it
13

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 17 of 120 PageID #: 2902
states that “[p]olicy determinations of this nature are clearly for nonjudicial discretion, and are more properly left to the legislature or the people of the State through a constitutional convention.” Id. The legislature additionally found that Hawaii’s marriage licensing statutes “were intended to foster and protect the propagation of the human race through male-female marriages.” Id.
In 1997, the legislature passed a proposed amendment to the Hawaii Constitution to include a new section titled “Marriage” that states “[t]he legislature shall have the power to reserve marriage to opposite-sex couples.” See 1997 Haw. Sess. Laws 1247, H.B. 117, § 2. The statement of intent in the final form of the bill for the marriage amendment provided: “[T]he unique social institution of marriage involving the legal relationship of matrimony between a man and a woman is a protected relationship of fundamental and unequaled importance to the State, the nation, and society.” Id. at 1246. It reasserted that marriage should be dealt with by the legislature, not the courts: “[T]he question of whether or not to issue marriage licenses to couples of the same sex is a fundamental policy issue to be decided by the elected representatives of the people.” Id. at 1246-47. Finally, it noted that the proposed amendment would not impose a permanent bar to same-sex marriage: “This constitutional measure is . . . designed . . . to ensure that the
14

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 18 of 120 PageID #: 2903
legislature will remain open to the petitions of those who seek a
change in the marriage laws, and that such petitioners can be
considered on an equal basis with those who oppose a change in
our current marriage statutes.” Id. at 1247.
During the same legislative session, in April 1997, the
legislature passed H.B. No. 118, the Reciprocal Beneficiaries
Act, which granted persons who are legally prohibited from
marrying the ability to register as reciprocal beneficiaries and
obtain certain rights associated with marriage. See Hawaii
Reciprocal Beneficiaries Act, 1997 Haw. Sess. Laws 383 (codified
in part at H.R.S. § 572C). The findings under the Act state:
The legislature finds that the people of Hawaii choose to preserve the tradition of marriage as a unique social institution based upon the committed union of one man and one woman. The legislature further finds that because of its unique status, marriage provides access to a multiplicity of rights and benefits throughout our laws that are contingent upon that status. As such, marriage should be subject to restrictions such as prohibiting respective parties to a valid marriage contract from standing in relation to each other. . . . However, the legislature concurrently acknowledges that there are many individuals who have significant personal, emotional, and economic relationships with another individual yet are prohibited by such legal restrictions from marrying. For example, two individuals who are related to one another, such as a widowed mother and her unmarried son, or two individuals who are of the same gender. Therefore, the legislature believes that certain rights and benefits presently available only to married couples should be made available to couples comprised of two
15

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 19 of 120 PageID #: 2904
individuals who are legally prohibited from marrying one another. H.R.S. § 572C-2. In November 1998, the people of Hawaii ratified the marriage amendment. See Haw. Const. art. I, § 23. Sixty-nine percent of the electorate voted for the amendment, twenty-nine percent voted against the amendment, and two percent left their ballots blank. See David Orgon Coolidge, The Hawaii Marriage Amendment: Its Origins, Meaning and Fate, 22 U. Haw. L. Rev. 19, 101 (2000). Thereafter, on December 9, 1999, the Hawaii Supreme Court issued a four-page unpublished summary disposition of the appeal of the trial court’s decision finding § 572-1 violated the Hawaii Constitution. Baehr v. Miike, No. 20371, 1999 Haw. LEXIS 391 (Haw. Dec. 9, 1999). The Hawaii Supreme Court held that the case was moot in light of the marriage amendment. Id. at *8. Specifically, the court explained: “The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples.” Id. at *6. The court elaborated that “whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is. In light of the marriage amendment, HRS § 572-1 must be given full force and
16

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 20 of 120 PageID #: 2905
effect.” Id. at *6-7.
After several failed attempts, in 2011, the legislature
passed a civil unions bill. See H.R.S. § 572B. On February 23,
2011, Governor Abercrombie signed the bill into law (the “civil
unions law”). See B.J. Reyes, Hawaii Now Seventh State to
Legalize Civil Unions, Star Advertiser (Feb. 23, 2011, 2:10 PM
HST), www.staradvertiser.com/news/breaking/116776119.html?id=1167
76119. Pursuant to H.R.S. § 572B-2, which took effect on January
1, 2012, a person is eligible to enter into a civil union if the
person is:
(1) Not a partner in another civil union or a spouse in a marriage
(2) At least eighteen years of age; and
(3) Not related to the other proposed partner in the civil union, as provided in section 572B-3.
H.R.S. § 572B-2, as amended by 2012 Haw. Laws Act 267 (H.B. 2569).3/ The civil unions law gives partners to a civil union all of the same state legal rights granted to married couples.4/
3/On July 6, 2012, the legislature passed amendments to the civil unions law for “additional clarification to minimize confusion and aid in the proper interpretation of” the civil unions law. See 2012 Haw. Laws Act 267, § 1 (H.B. 2569).
4/The civil unions law states:
Partners to a civil union lawfully entered into pursuant to this chapter shall have all the same rights, benefits, protections, and responsibilities under law, whether derived
(continued...)
17

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 21 of 120 PageID #: 2906
See H.R.S. § 572B-9. II. Same-Sex Marriage Nationwide
Hawaii is not alone in the political and legal debate over official recognition of same-sex relationships. The right to same-sex marriage has been established through litigation in Iowa, Connecticut, Massachusetts, and California. See Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (holding state statute limiting civil marriage to opposite-sex couples violated the Iowa Constitution’s equal protection clause); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008) (holding Connecticut laws restricting civil marriage to opposite-sex couples violated the equal protection rights of the Connecticut Constitution); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (holding that licensing statute which did not provide for samesex marriage violated the equal protection and due process liberty principles of the Massachusetts Constitution); Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) (holding California’s constitutional amendment banning same-sex marriage violated the United States Constitution in the unique circumstances of same-
4/(...continued) from statutes, administrative rules, court decisions, the common law, or any other source of civil law, as are granted to those who contract, obtain a license, and are solemnized pursuant to chapter 572.
H.R.S. § 572B-9. 18

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 22 of 120 PageID #: 2907
sex marriage in California).5/ New York, Washington D.C., New Hampshire, and Vermont,
recognize same-sex marriage through legislative enactment. See N.Y. Dom. Rel. Law § 10-a (McKinney 2011); D.C. Code § 46-401 (2010); N.H. Rev. Stat. Ann. § 457:1-a (2010); Vt. Stat. Ann. tit. 15, § 8 (2009). Washington recently passed legislation allowing same-sex marriage. See Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West). In March 2012, Maryland’s governor signed a measure legalizing same-sex marriage. See John Wagner, Md. Marriage Petitioners Told of Success, The Washington Post (July 10, 2012, 4:23 PM ET), http:// www.washingtonpost.com/blogs/maryland-politics/post/md-marriage -petitioners-told-of-success/2012/07/10/gJQAqVBIbW_blog.html. The law is scheduled to take effect in January 2013. See id. The laws in Washington and Maryland are subject to voter referendum in November 2012. See id.; Michael Winter, November referendum blocks Wash. same-sex marriage law, USAToday (June 6, 2012, 10:28 PM), http://content.usatoday.com/communities/ ondeadline/post/2012/06/november-referendum-blocks-wash-same-sex-
5/The Court notes that in Perry, the Ninth Circuit stayed its decision pending issuance of the mandate. See Perry, 671 F.3d at 1098 n.27. On June 5, 2012, the Ninth Circuit denied a petition for rehearing en banc. See Perry v. Brown, 681 F.3d 1065 (9th Cir. 2012). The proponents of Proposition 8 filed a petition for certiorari with the Supreme Court on July 30, 2012. See Perry, No. 10-16696, Doc. No. 427 (9th Cir.).
19

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 23 of 120 PageID #: 2908
marriage-law/1#.T_3ekRehQWI. The New Jersey legislature recently adopted legislation
to legalize same-sex marriage, but Governor Chris Christie vetoed the legislation and there were insufficient votes to override the veto. See Garden State Equality v. Dow, 2012 WL 540608, at *9 n.8 (N.J. Super. L. Feb. 21, 2012) (unpublished). Governor Christie called for the legislature to put a referendum on samesex marriage on the ballot in November 2012, stating: “An issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide.” Kate Zernike, Christie Keeps His Promise to Veto Gay Marriage Bill, The New York Times (February 17, 2012), http://www.nytimes. com/2012/02/18/nyregion/christie-vetoes-gay-marriage-bill.html. Shortly after Governor Christie’s veto, Garden State Equality, an advocacy organization, seven same-sex couples, and ten of the couples’ children filed suit against state officials asserting that the New Jersey Civil Union Act violates the Fourteenth Amendment. See Garden State Equality, 2012 WL 540608, at *2, 10.
In addition to Hawaii, states that recognize civil unions (or their equivalent) are Delaware, Illinois, Rhode Island, Nevada, and Oregon.6/ See Del. Code Ann. tit. 13 §§ 201-
6/Same-sex couples in Nevada have filed suit against state officials asserting that Nevada’s marriage laws violate the United States Constitution. A defendant, the Nevada Governor, has filed a motion to dismiss which is scheduled to be heard on August 10, 2012. See Sevcik v. Sandoval, Civ. No. 12-00578 (D.
(continued...) 20

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 24 of 120 PageID #: 2909
217 (2011); 750 Ill. Comp. Stat. Ann. 75/1 (West 2011); R.I. Gen. Laws § 8-3-19 (2009); Nev. Rev. Stat. § 122A.010-.510 (2009); Or. Rev. Stat. § 106.300, et seq. (2008). Maine provides for limited domestic partnerships without clearly granting marital privileges to partners. See Me. Rev. Stat. tit. 22 § 2710 (2009). In Maine, voters will vote on an initiative to approve same-sex marriage in November 2012. See Katharine Q. Seelye, Gay Marriage Again on Ballot in Maine, The New York Times (June 24, 2012), http://www.nytimes.com/2012/06/25/us/politics/second-time-aroundhope-for-gay-marriage-in-maine.html.
Thus, thirty-eight states have a statute and/or constitutional provision limiting marriage to relationships between a man and woman. See National Conference of State Legislatures, Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws (June 2012), http://www.ncsl.org/issuesresearch/human-services/same-sex-marriage-overview.aspx. Of these states, twenty-nine have placed the limitation in their state constitutions (twenty-six of these have statutes adopting the limitation). See id. A further nine states have statutory language restricting marriage to opposite-sex couples.7/ See id.
6/(...continued) Nev. April 10, 2012).
7/These calculations do not include Washington and Maryland, where the laws adopting same-sex marriage will be put before voter referendum in November 2012 or California, where the Ninth Circuit invalidated Proposition 8 in Perry.
21

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 25 of 120 PageID #: 2910
III. Federal Defense of Marriage Act The Federal Government has also been involved in the
social and political dispute over same-sex marriage. In 1996, Congress passed, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”). DOMA has two basic provisions. One provision is that no state is required to give effect to a relationship between same-sex individuals that is treated as marriage under the laws of another state (“Section 2”). 28 U.S.C. § 1738C. The other is that in determining the meaning of any federal law or federal administrative decision, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife” (“Section 3”). 1 U.S.C. § 7. The General Accounting Office estimated in 2004 that DOMA affects the implementation of 1,138 federal laws. See Letter from Dayna K. Shah, Assoc. Gen. Counsel, GAO, to Bill Frist, Majority Leader, U.S. Senate (Jan. 23, 2004), http://www.gao.gov/new.items/d04353 r.pdf.
Challenges to the constitutionality of DOMA have been filed in several courts. In the midst of this DOMA litigation, in February 2011, Attorney General Eric Holder announced that the government would no longer defend Section 3 of DOMA. See Letter from Eric H. Holder, Jr., Att’y Gen., to Rep. John A. Boehner, Speaker of the House, Letter to Congress on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), http://www.justice. gov/opa/pr/2011/February/11-ag-223.html. Attorney General Holder
22

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 26 of 120 PageID #: 2911
stated that the Executive Branch would, however, continue to
enforce Section 3. Id.
Only one Court of Appeals, the First Circuit, has ruled
on the constitutionality of DOMA. In Massachusetts v. U.S. Dep’t
of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) (“Mass. v.
HHS”), the First Circuit held Section 3 of DOMA violated the Equal Protection Clause.8/ Three DOMA cases are currently on
appeal, two in the Ninth Circuit and one in the Second Circuit, from decisions holding Section 3 is unconstitutional.9/ See
Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.);10/ Dragovich v. U.S. Dep’t of the Treasury, No. 12-
16461 (9th Cir.); Windsor v. United States, Nos. 12-2335 & 122435 (2d Cir.).11/
Four district courts have held that Section 3 is
constitutional. See Lui v. Holder, Civ. No. 11-01267, Doc. No.
8/BLAG filed a petition for certiorari in Mass. v. HHS on June 29, 2012. See Fuddy’s Response to Abercrombie’s CSF, Ex. 5.
9/The Court notes that on July 31, 2012 a district court in the District of Connecticut held Section 3 of DOMA was unconstitutional. See Pedersen v. U.S. Office of Pers. Mgmt., Civ. No. 10-1750, Doc. No. 116. No party has appealed thus far.
10/On July 16, 2012, the plaintiff in Windsor v. United States, Nos. 12-2335 (2d Cir.), who won at the district court, filed a petition for certiorari before judgment to the Supreme Court. See id. at Doc. No. 89.
11/On July 3, 2012, the Solicitor General filed a petition for certiorari before judgment in Golinski v. United States Office of Personnel Managment, Nos. 12-15409, Doc. No. 77 (July 3, 2012).
23

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 27 of 120 PageID #: 2912
38 (C.D. Cal. Sept. 28, 2011); Torres-Barragan v. Holder, Civ. No. 09-08564, Doc. No. 24 (C.D. Cal. Apr. 30, 2010); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Hunt v. Ake, No. 041852, Doc. No. 35 (M.D. Fla. Jan. 20, 2005). One bankruptcy court in the Ninth Circuit has held Section 3 is constitutional, see In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004), and one has held DOMA is unconstitutional. See In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011). There are several other DOMA cases pending in district courts around the country. IV. The Parties in This Case
Plaintiffs Natasha N. Jackson and Janin Kleid are two women in a relationship together who sought and were denied a marriage license from the Department of Health, State of Hawaii. Am. Compl. ¶¶ 3-4. Plaintiff Gary Bradley is a man who entered into a civil union with his male partner under the civil unions law. Id. ¶ 9. Bradley asserts that he entered into a civil union and did not seek a marriage license because it was futile for him to do so under § 572-1. Id. ¶ 10. Plaintiffs challenge § 572-1 and the marriage amendment as unconstitutional under the federal Constitution, asserting inter alia, that “Hawaii’s ‘solution’ of the problem of giving legal recognition to the relationships of same-sex couples without permitting them to marry, has not created equality but a system as pernicious and damaging in its effects as any system of segregation.” Id. ¶ 78.
Plaintiffs seek summary judgment on their federal equal 24

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 28 of 120 PageID #: 2913
protection violation claim. Defendant Fuddy and HFF seek summary judgment in their favor on Plaintiffs’ federal equal protection and due process claims. HFF also seeks to dismiss Defendant Abercrombie from this action. Defendant Abercrombie seeks a summary judgment that heightened scrutiny should apply to Plaintiffs’ claims and argues that § 572-1 violates the Constitution.12/
STANDARD In general, the purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is therefore appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
12/Defendant Abercrombie states that he “defends the constitutionality (but not the wisdom) of Article I, Section 23, of the Hawaii Constitution, because [he] construes that section as establishing only that nothing in the Hawaii State Constitution requires the Legislature to allow same sex marriage.” Abercrombie’s Mot. Mem. 4.
25

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 29 of 120 PageID #: 2914
“A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A ‘genuine issue’ of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”13/ Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson, 477 U.S. at 248). Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir. 1987). The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Miller v. Glenn Miller Prods., 454 F.3d 975, 987 (9th Cir. 2006). This is
13/Disputes as to immaterial facts do “not preclude summary judgment.” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986). As explained in more detail infra, because of the deferential nature of the applicable rational basis review, and the fact that the state is not required to produce any evidence under such review, disputes of fact that might normally preclude summary judgment in other civil cases, will generally not be substantively material in such review. See Vance v. Bradley, 440 U.S. 93, 110-11 (1979).
26

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 30 of 120 PageID #: 2915
true even when a court is presented with cross-motions for
summary judgment; each party must meet this burden. High Tech
Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574
(9th Cir. 1990). The moving party may do so with affirmative
evidence or by “‘showing’— that is, pointing out to the district
court—that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party satisfies its burden, the
nonmoving party cannot simply rest on the pleadings or argue that
any disagreement or “metaphysical doubt” about a material issue
of fact precludes summary judgment. See id. at 324; Matsushita
Elec., 475 U.S. at 586; Cal. Architectural Bldg. Prods., Inc. v.
Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
Rather, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.”14/ Anderson,
477 U.S. at 250. Summary judgment will thus be granted against a
party who fails to demonstrate facts sufficient to establish an
element essential to his case when that party will ultimately
14/ “A party asserting that a fact cannot be or is genuinely disputed must support the assertion,” and can do so in either of two ways: by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials”; or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
27

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 31 of 120 PageID #: 2916
bear the burden of proof at trial. See Celotex, 477 U.S. at 322. DISCUSSION
The issue in this case is whether Hawaii’s marriage laws, which define marriage as a union between a man and woman, violate the Due Process and Equal Protection Clauses of the United States Constitution. As an initial matter, the Court will discuss HFF’s argument that Defendant Abercrombie is not a proper party to this case and must be dismissed. The Court will then discuss the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.), which remains binding authority and dictates that Hawaii’s marriage laws are constitutional. The Court then conducts an alternative analysis on the merits, concluding that Hawaii’s marriage laws do not violate the Equal Protection or Due Process Clauses. I. Defendant Abercrombie’s Status as a Party
HFF asserts that Defendant Abercrombie is not a proper party to this case and must be dismissed on Eleventh Amendment Sovereign Immunity and Article III standing grounds. HFF’s Mot. Mem. 37. Specifically, HFF contends that the Governor does not administer Hawaii’s marriage laws or maintain any control over the county clerks who issue marriage licenses, and accordingly the Governor is not a proper party in this case. Id. HFF also asserts that courts have routinely dismissed governors and other high level officials from lawsuits due to the lack of a sufficient connection to the alleged injury. Id. at 38.
28

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 32 of 120 PageID #: 2917
A. Sovereign Immunity Defendant Abercrombie is sued in his official capacity
as Governor of Hawaii. Suits against a state officer in his official capacity, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (internal quotations omitted). Thus, “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id. at 166 (internal quotations omitted). Eleventh Amendment Sovereign Immunity applies to bar claims brought against a state in federal court unless the state consents or Congress unequivocally abrogates the immunity under its Fourteenth Amendment authority. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 (1984). Eleventh Amendment immunity is treated as an affirmative defense and can be expressly waived or forfeited if the State fails to assert it. See ITSI T.V. Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993).
Defendant Abercrombie has explicitly waived Eleventh Amendment immunity with respect to prospective injunctive relief barring enforcement of § 572-1’s ban on same-sex marriage. Abercrombie’s Mot. Mem. 86. HFF argues that Defendant Abercrombie has not shown that he has the authority to waive the state’s sovereign immunity. HFF’s Reply 39-40. The Supreme Court has noted that regardless of an official’s authority with
29

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 33 of 120 PageID #: 2918
respect to waiving sovereign immunity under state law, it “has consistently found waiver when a state [official] . . . has voluntarily invoked th[e] court’s jurisdiction.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 514 (2002). Here, Defendant Abercrombie has expressly waived sovereign immunity and sought summary judgment in Plaintiffs’ favor. Thus, he has “voluntarily invoked” the Court’s jurisdiction. Moreover, HFF has given the Court no reason to question the power of the sitting governor, sued in his official capacity as head of the state executive, to waive Hawaii’s sovereign immunity.
In any event, the decision to invoke sovereign immunity belongs to the state. State Police for Automatic Ret. Ass’n v. Difava, 138 F. Supp. 2d 142, 147 (D. Mass. 2001) (citing Clark v. Barnard, 108 U.S. 436, 447 (1883)). Thus, HFF, a DefendantIntervenor, cannot force the state, through the governor sued in his official capacity, to invoke its sovereign immunity. See Howard v. Food Lion, Inc., 232 F. Supp. 2d 585, 593 (M.D.N.C. 2002) (determining that the plaintiff could not assert an Eleventh Amendment immunity defense on behalf of a state official because “[t]he decision to invoke sovereign immunity belongs to the state . . . and cannot be made by the opposing party”); Difava, 138 F. Supp. 2d at 147 (holding that a retirement association could not force the State to invoke its Eleventh
30

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 34 of 120 PageID #: 2919
Amendment immunity).15/
B. Article III
Article III provides that federal courts have the power
to resolve “Cases” or “Controversies.” Arizona Christian Sch.
Tuition Org. v. Winn, 131 S. Ct. 1436, 1441 (U.S. 2011). “To
obtain a determination on the merits in federal court, parties
seeking relief must show that they have standing under Article
III of the Constitution.” Id. at 1440. To satisfy Article III
standing, at a minimum, (1) the party seeking relief must have
suffered an injury in fact, (2) there must be “a causal
connection between the injury and the conduct complained,” and
(3) it must be likely the injury will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992).
In Citizens for Equal Protection v. Bruning, 455 F.3d
859 (8th Cir. 2006), the Eighth Circuit held that advocates for
gay marriage had standing to challenge a state constitutional
amendment stating that only marriage between a man and a woman
was valid against the Attorney General and Governor of Nebraska.
15/Because HFF may not assert the state’s sovereign immunity, the Court need not consider whether the exception to sovereign immunity for state officials sued in their official capacity for declaratory and injunctive relief set forth in Ex Parte Young, 209 U.S. 123 (1908), applies to Defendant Abercrombie. See, e.g., Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir. 2004) (explaining that for the Ex Parte Young exception to sovereign immunity to apply, there must be “‘some connection’ between a named state officer and enforcement of a challenged state law”).
31

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 35 of 120 PageID #: 2920
Id. at 863-64. It determined that “when the government erects a barrier making it more difficult for members of a group to obtain a benefit, ‘[t]he “injury in fact” . . . is the denial of equal treatment resulting from the imposition of the barrier.’” Id. at 863 (8th Cir. 2006) (alteration in original) (quoting N.E. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993)). The Eighth Circuit then addressed the connection of the injury to the Attorney General and Governor and explained that they both had broad powers to enforce the State’s Constitution and statutes, which includes policing compliance with the constitutional amendment at issue. Id. The Eighth Circuit thus concluded that the Governor and the Attorney General had “some connection with the enforcement” of the amendment, which satisfied Article III standing requirements. Id.
Here, Plaintiffs assert that Hawaii’s marriage laws are unconstitutional. Plaintiffs Kleid and Jackson applied for and were denied a marriage license. Plaintiff Bradley entered into a civil union with his same-sex partner and did not apply for a marriage license because it was futile in light of § 572-1. This injury – the inability to obtain marriage licenses available to opposite-sex couples – is causally related to Hawaii’s restriction of marriage to unions between a man and a woman. Defendant Abercrombie, as chief executive of Hawaii, is “responsible for the faithful execution of [Hawaii’s] laws.” Haw. Const. art. 5, §§ 1, 5. Plaintiffs’ injuries thus “have
32

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 36 of 120 PageID #: 2921
some connection” to Defendant Abercrombie. In the event of a favorable decision, Defendant Abercrombie can redress Plaintiffs’ injuries by ordering Defendant Fuddy to issue licenses to samesex couples or replacing her with a director who will do so. Accordingly, Plaintiffs have standing to seek relief from Defendant Abercrombie.
The Court further notes that to dismiss Defendant Abercrombie as an improper party on Article III grounds would call into question the jurisdiction of numerous cases challenging state laws and constitutional amendments that have been brought against a governor in his or her official capacity. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (determining merits of suit against governor, state attorney general, and state, challenging the validity of an amendment to Colorado Constitution); Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2012) (determining merits of suit against, inter alia, Arizona Governor, brought by lesbian and gay state employees challenging the constitutionality of an Arizona statute limiting eligibility for family health care coverage to married heterosexual employees). Furthermore, in a decision involving whether the intervenors in Perry had standing to appeal, Judge Reinhardt, concurring, noted that “the problem of standing would have been eliminated had the Governor or the Attorney General defended the initiative, as is ordinarily their obligation.” Perry v. Schwarzenegger, 628 F.3d 1191, 1201 (9th Cir. 2011) (Reinhardt, J., concurring). In the decision striking
33

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 37 of 120 PageID #: 2922
Proposition 8, the Ninth Circuit again discussed Article III standing and noted that “[w]hether the defendant is the state or a state officer, the decision to assert the state’s own interest in the constitutionality of its laws is most commonly made by the state’s executive branch — the part of state government that is usually charged with enforcing and defending state law.” Perry, 671 F.3d at 1071.
Accordingly, the Court concludes that Defendant Abercrombie is a proper party and thus denies HFF’s motion to dismiss him from this action.
HFF further asserts in its reply that Defendant Abercrombie does not have standing to seek summary judgment and instead should have filed a “response” to Plaintiffs’ Motion. HFF’s Reply 46-48 & n.21. Defendant Abercrombie replies that he does not seek affirmative relief against Defendant Fuddy but rather asks that strict or heightened scrutiny be applied to Plaintiffs’ due process and equal protection claims. Abercrombie’s Reply 38. He further argues that in any event, there is nothing in Article III prohibiting him from seeking affirmative relief. Id. Specifically, he asserts that he has a direct stake in the outcome of the case which provides concrete adverseness. Id.
The Court need not consider whether it has jurisdiction over Defendant Abercrombie’s Countermotion because it is rendered moot by the Court granting summary judgment in favor of Defendant
34

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 38 of 120 PageID #: 2923
Fuddy and HFF. The Court thus denies it as moot. Because the Court would like the broadest view of the issues possible, it will consider Defendant Abercrombie’s Countermotion as a brief in support of Plaintiff’s Motion and in opposition to Fuddy’s Motion and HFF’s Motion just as it permitted HFF to intervene and Hawaii Equality to file an amici brief. II. Baker v. Nelson
HFF and Defendant Fuddy assert that the questions presented by this case were decided by the Supreme Court in Baker, which they argue is binding precedent. HFF’s Mot. Mem. 4. In Baker, the Minnesota Supreme Court held that a Minnesota statute that defined marriage as a union between persons of the opposite-sex did not violate the First, Eighth, Ninth, and Fourteenth Amendments of the federal Constitution. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). The Minnesota Supreme Court rejected the plaintiffs’ claims determining, inter alia, that a right to marry without regard to the sex of the parties is not a fundamental right. Id. at 186-87. The court further determined that the Equal Protection Clause was “not offended by the state’s classification of persons authorized to marry” and that there was “no irrational or invidious discrimination.” Id. at 187. The United States Supreme Court summarily dismissed the plaintiffs’ appeal “for want of a substantial federal question.” Baker, 409 U.S. 810.
Per procedural rules in effect at the time, the summary 35

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 39 of 120 PageID #: 2924
dismissal of a state supreme court decision constituted a decision on the merits. See Hicks v. Miranda, 422 U.S. 332, 344 (1975). Such 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). “[U]nless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise. . . .” Hicks, 422 U.S. at 344 (internal quotations omitted).
“Summary actions . . . should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.” Mandel, 432 U.S. at 176. “Questions which merely lurk in the record are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83 (1979) (internal quotations and citation omitted). Thus, a summary dismissal is controlling precedent only if the issues in the two cases are sufficiently similar. See Hicks, 422 U.S. at 345 n.14. The “precedential value of a dismissal for want of a substantial federal question extends beyond the facts of the particular case to all similar cases.” Bates v. Jones, 131 F.3d 843, 848 (9th Cir. 1997) (internal quotations omitted).
The following two questions were presented to the 36

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 40 of 120 PageID #: 2925
Supreme Court in Baker are relevant here:
1. Whether [Minnesota’s] refusal to sanctify appellants’ marriage deprives appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment.
2. Whether [Minnesota’s] refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.
HFF’s Mot. Ex. 10, Baker v. Nelson, Jurisdictional Stmt., No. 71-
1027, at 3 (Feb. 11, 1971) [hereinafter Baker Jurisdictional Stmt.].16/
Plaintiffs assert that because of doctrinal changes in
the Supreme Court’s Due Process Clause analysis and factual
differences between this case and Baker, this Court is not bound
by the Supreme Court’s summary dismissal. Pls.’ Opp’n 7-8.
Particularly, Plaintiffs rely on the Supreme Court’s decision in
Lawrence v. Texas, 539 U.S. 558 (2003).
The Supreme Court has not explicitly or implicitly
overturned its holding in Baker or provided the lower courts with
any reason to believe that the holding is invalid. See Perry,
671 F.3d at 1099 n.1 (N.R. Smith, J., concurring in part and
dissenting part) (concluding the Supreme Court cases following
16/The third question, not at issue here, was: “[w]hether Minnesota’s] refusal to sanctify appellants’ marriage deprives appellants of their right to privacy under the Ninth and Fourteenth Amendments.” Baker Jurisdictional Stmt. 3.
37

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 41 of 120 PageID #: 2926
Baker do not suggest any doctrinal developments indicating Baker is no longer good law); Wilson v. Ake, 354 F. Supp. 2d 1298, 1305-06 (M.D. Fla. 2005) (same); but see In re Kandu, 315 B.R. at 138 (concluding Baker was not binding on a challenge to DOMA because of different facts and “doctrinal developments” indicated it was no longer binding). Lawrence had no such effect.
In Lawrence, the Supreme Court expressly stated that “[t]he present case does not involve . . . whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence, 539 U.S. at 578. “In so limiting the scope of its decision, the court in Lawrence implicitly recognized that it is one thing to conclude that criminalizing private, consensual homosexual conduct between adults violates due process; it is entirely another matter to conclude that the constitution requires the redefinition of the institution of marriage to include same sex couples.” Kerrigan, 957 A.2d at 513. Additionally, in concurrence, Justice O’Connor stated that the sodomy law “as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review.” Lawrence, 539 U.S. at 585 (O’Connor, J., concurring). She continued that Texas could not assert a legitimate interest for the law, “such as . . . preserving the traditional institution of marriage.” Id.
38

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 42 of 120 PageID #: 2927
Romer v. Evans, 517 U.S. 620 (1996), also does not
indicate that Baker is no longer valid because in Romer, the
Supreme Court applied rational basis scrutiny to laws that
discriminated on the basis of sexual orientation. Id. at 631-35.
Consequently, there are no doctrinal changes in Supreme Court
jurisprudence implying that Baker is no longer binding authority.
Thus, the binding effect of Baker hinges on whether the issues in
this case were presented to and necessarily decided by the
Supreme Court.17/
A. The Due Process Claim
In Baker, two male plaintiffs were not allowed to marry
each other pursuant to Minnesota law solely because both were of
the same sex. See Baker 191 N.W.2d at 185. The Supreme Court
determined that the two plaintiffs’ claim that they had a
fundamental right to marry each other did not raise a substantial
federal question. Here, Plaintiffs also are not allowed to marry
their partners solely because they are of the same sex and
17/In Perry, the majority stated it was unnecessary to consider the binding effect of Baker because it was considering an entirely different issue “squarely controlled by Romer.” 671 F.3d at 1082 n.14. The First Circuit recently did consider the issue and recognized that “Baker does not resolve our own [DOMA] case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same sex marriage.” Mass. v. HHS, 682 F.3d at 8; see also Wilson, 354 F. Supp. 2d at 130405 (holding Baker required dismissal of the plaintiffs’ claims that DOMA and a state law banning the recognition of same sex marriage violated the Constitution); Morrison v. Sadler, 821 N.E. 2d 15, 19-20 (Ind. App. 2005) (noting that Baker was binding precedent indicating that state bans on same-sex marriage do not violate the Constitution).
39

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 43 of 120 PageID #: 2928
Plaintiffs claim that they have a fundamental right to do so. Am. Compl. ¶ 61. Plaintiffs’ due process claim was thus presented to and necessarily decided by the Supreme Court in Baker. See Perry, 671 F.3d at 1099 n.1 (N.R. Smith, J., concurring in part and dissenting part) (“Whether prohibiting marriage by same-sex couples violates due process was an issue presented and decided in Baker.”). Consequently, the Court is bound by Baker and Plaintiffs’ due process claim fails.
B. The Equal Protection Claim Defendant Abercrombie asserts that the Baker plaintiffs
presented a claim of gender discrimination and thus denying marriage on account of sexual orientation was not the precise issue presented in Baker. Abercrombie’s Mot. Mem. 9. Plaintiffs and Defendant Abercrombie assert because Hawaii has a civil unions law in contrast to Minnesota at the time of Baker, the facts are sufficiently different such that their Equal Protection claim is not controlled by Baker. Pls.’ Opp’n 16-17; Abercrombie’s Reply 3.
Defendant Abercrombie’s contention that Baker asserted solely a gender discrimination is belied by the jurisdictional statement. Although in the jurisdictional statement the plaintiffs assert that “[t]he discrimination in this case is one of gender,” their claim is not limited to gender discrimination. Baker Jurisdictional Stmt. 16. The plaintiffs also relied on the state’s differing treatment based on their sexual orientation.
40

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 44 of 120 PageID #: 2929
For example, the plaintiffs argued that “there is no justification in law for the discrimination against homosexuals”; that “prejudice against homosexuals . . . is unlikely to be cured until the public acknowledges that homosexuals, like all people, are entitled to the full protection and recognition of the law”; and that “[c]hildless same sex couples . . . are ‘similarly circumstanced’ to childless heterosexual couples.” Id. at 7, 10, 16-17 (emphasis added). The First Circuit recognized that the plaintiffs in Baker raised an equal protection claim based on sexual orientation discrimination, noting that holding that sexual orientation classifications are subject to heightened scrutiny would “imply[] an overruling of Baker.” Mass. v. HHS, 682 F.3d at 9.
Although the facts in this case are not identical to those in Baker, the “precedential value of a dismissal for want of a substantial federal question extends beyond the facts of the particular case to all similar cases.” Wright v. Lane Cnty. Dist. Court, 647 F.2d 940, 941 (9th Cir. 1981) (emphasis added) (citing McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645, 646 (1976)). Both this case and Baker involve a challenge to a state law that defines marriage as a union between a man and a woman. Hawaii’s civil unions law, enacted subsequent to Hawaii’s marriage laws, is not challenged in this case. Hawaii’s civil unions law did not take away any rights from same-sex
41

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 45 of 120 PageID #: 2930
couples. Rather, it extended rights that they had never previously possessed.
The plaintiffs in Baker argued that the Equal Protection Clause was violated because Minnesota’s laws were based on invidious discrimination, arbitrary, capricious, unreasonable, and not rationally related to any governmental interest. See Baker Jurisdictional Stmt. 14-15. Plaintiffs make the same arguments in this case. The Baker plaintiffs argued that the fact same-sex couples could raise children and that single persons could be adoptive parents supported their claims. Id. Plaintiffs in this case make similar arguments. Minnesota did not have an equivalent to Hawaii’s marriage amendment. Hawaii’s marriage amendment, however, commits the matter to the legislature and does not forbid same-sex marriage. Moreover, the marriage amendment did not “take away” a preexisting right as the Hawaii Supreme Court has never held that same-sex couples have the right to marry. Thus, this fact does not render Hawaii’s marriage laws so different from Minnesota’s at the time of Baker that it can be said the issues in this case were not before the Supreme Court.18/
18/Judge N.R. Smith, concurring in part and dissenting in part in Perry, determined that the case “seem[ed] to be distinguishable from the precise issues presented and necessarily decided in Baker” for purposes of the Equal Protection Clause challenge. 671 F.3d 1052, 1099 (N.R. Smith, J., concurring in part and dissenting part). He explained:
(continued...) 42

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 46 of 120 PageID #: 2931
Consequently, the relevant facts of this case are
substantially similar to that raised in Baker, which necessarily
decided that a state law defining marriage as a union between a
man and woman does not violate the Equal Protection Clause. This
issue did not merely “lurk in the record,” but was directly
before the Supreme Court. Baker is the last word from the
Supreme Court regarding the constitutionality of a state law
limiting marriage to opposite-sex couples and thus remains
binding on this Court.
In the alternative, Plaintiffs’ claims fail on the
merits.
III. The Merits of Plaintiffs’ Claims
Civil marriage is a public institution, created by law
to promote public policy and further social interest. See
Maynard v. Hill, 125 U.S. 190, 213-14 (1888). “Because of its
18/(...continued) Unlike Minnesota, California granted same-sex couples right to both the designation and the incidents of marriage, before withdrawing the right of access to the designation through Proposition 8. Therefore, the constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the ‘specific challenges’ raised in Baker.
Id. at 1100 (emphasis added). As discussed above, Hawaii’s marriage laws did not take away the designation of marriage after granting it to same-sex couples. Additionally, Hawaii did not enact its civil unions law until years after § 572-1 was amended and the marriage amendment became operative. Thus, Judge N.R. Smith’s conclusion does not apply here.
43

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 47 of 120 PageID #: 2932
vital importance to society, while the people through their governments have always encouraged marriage, they have always regulated it. Generally that has been at the state level.” Smelt v. Cnty. of Orange, 447 F.3d 673, 680 (9th Cir. 2006). This state right to regulate marriage, “necessarily includes the power to classify those persons who may validly marry.” Bruning, 455 F.3d at 867. The Supreme Court has long recognized this right. In 1888, it stated: “Marriage . . . has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.” Maynard, 125 U.S. at 205.
Here, Plaintiffs argue that Hawaii’s restriction on same-sex marriage is outside the bounds of this longstanding prerogative of states to classify who may marry. The Court will first discuss Plaintiffs, Defendant Abercrombie, and Equality Hawaii’s arguments that this case is controlled by Perry v. Brown and Romer, followed by a discussion of the appropriate level of scrutiny to apply to Plaintiffs’ due process and equal protection claims. Finally, the Court conducts the applicable rational basis review.
A. Perry v. Brown
44

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 48 of 120 PageID #: 2933
In Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), relying exclusively on the history of same-sex marriage in California, the Ninth Circuit held that Proposition 8 violated the Equal Protection Clause of the U.S. Constitution. Equality Hawaii asserts that Perry v. Brown controls this case and requires the Court to reject the rationales set forth for Hawaii’s marriage laws. Equality Hawaii’s Br. 2. Specifically, Equality Hawaii asserts that Proposition 8 is “remarkably similar” to the marriage amendment, “which led to a similar twotiered scheme under Hawaii in which same-sex civil union partners have the identical benefits and burdens conferred upon married couples without the legal status of the term ‘marriage.’” Id. at 3.
Equality Hawaii contends that as with Proposition 8, the marriage amendment “stripped same-sex couples” of the protection against invidious sex discrimination under the Hawaii Constitution and their resulting presumptive entitlement to the legal status of marriage. Id. at 3-4. Equality Hawaii further asserts that the marriage amendment, like Proposition 8, “‘constitutionalize[d]’ the disability it imposed upon same-sex couples by selectively altering the structure of government decision-making to make it far more difficult for same-sex couples to achieve equal access to the status of marriage.” Id. at 6 (alteration in original). Equality Hawaii contends that
45

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 49 of 120 PageID #: 2934
these alleged similarities render Perry as directly governing this case. Id.
Defendant Abercrombie asserts that this is a “take away” case controlled by Perry. Abercrombie’s Mot. Mem. 60. He asserts that in Baehr, the Hawaii Supreme Court provided Hawaii same-sex couples “with the ‘right’ to same sex marriage absent the state’s ability to satisfy strict scrutiny.” Id. He states that Hawaii took that right away through a combination of the marriage amendment and “its maintenance of HRS § 572-1’s man/woman requirement for marriage.” Id.
In Perry, the Ninth Circuit repeatedly asserted that its decision rested on the “unique and strictly limited effect of Proposition 8,” i.e., the California Supreme Court had extended the right to marry to same-sex couples, same-sex couples had married, California had a domestic partnership law giving samesex couples rights and responsibilities identical to married spouses, and then the people passed a constitutional amendment taking away solely the right to have the designation of marriage. See Perry, 671 F.3d at 1064, 1076-77. The Ninth Circuit specifically declined to consider “the broader question – the constitutionality of denying same-sex couples the right to marry.” Id. at 1064. Hawaii’s marriage laws do not have the same “unique and strictly limited effect” of Proposition 8. A brief history of California’s marriage laws sheds light on the
46

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 50 of 120 PageID #: 2935
differences. The California legislature made its understanding that
marriage was limited to relationships between a man and a woman explicit by amending California’s marriage statute in 1977. Id. at 1065; see Cal. Stats. 1977, ch. 339, § 1. In 2000, California adopted Proposition 22, an initiative statute, which provided that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Fam. Code § 308.5. California had, however, created the designation “domestic partnership” for “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” Cal. Stats. 1999, ch. 588, § 2 (codified at Cal. Fam. Code § 297(a)). In 2008, the California Supreme Court, applying heightened scrutiny, held that California’s marriage statutes violated equal protection principles and the due process component of the California Constitution. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
In response to this decision, California residents enacted Proposition 8, an initiative constitutional amendment, which would be equal in effect to other provisions of the California Constitution. Perry, 671 F.3d at 1067. A slim majority of voters (52.3 percent) approved Proposition 8, see id., which added a new provision to the California Constitution’s Bill of Rights stating: “Only marriage between a man and a woman
47

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 51 of 120 PageID #: 2936
is valid or recognized in California.” Cal. Const. art. 1, § 7.5. The California Supreme Court subsequently rejected a challenge to Proposition 8 as an impermissible change to the California Constitution by an initiative measure, but held that the amendment was not retroactive and thus the approximately 18,000 same-sex marriages already performed in California before its enactment remained valid. See Strauss v. Horton, 207 P.3d 48, 121-22 (Cal. 2009). In making this determination, the California Supreme Court noted that after same-sex couples were granted the right to marriage, but before Proposition 8 was adopted, same-sex couples who married “acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances.” Id. at 122.
There are several significant differences between California’s Proposition 8 and Hawaii’s marriage laws. Particularly, no same-sex couples ever had the right to marry in Hawaii. In Baehr, the Supreme Court held that strict scrutiny applied to the state’s limitation of marriage to opposite-sex couples under the equal protection principles of the Hawaii Constitution, but remanded for the trial court to apply such scrutiny in the first instance. Baehr v. Lewin, 852 P.2d at 68. Although the trial court found such limitation could not withstand heightened scrutiny on remand, relief was stayed
48

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 52 of 120 PageID #: 2937
pending appellate review. Baehr v. Miike, Civ. No. 91-13945, Doc. No. 190 (Order Granting Defendant State of Hawaii’s Motion to Stay Injunction Pending Appeal) (Dec. 12, 1996). Under Hawaii law, “where an appeal has been taken, a judgment of the trial court is not final, at least for purposes of res judicata.” Littleton v. State, 708 P.2d 829, 833 (Haw. 1985).
On appeal, the Hawaii Supreme Court held the plaintiffs’ claims had become moot before considering the trial court’s ruling on the merits. See Baehr v. Miike, No. 20371, 1999 Haw. LEXIS 391 (Haw. Dec. 9, 1999). In its unpublished decision, the Hawaii Supreme Court declined to decide whether § 572-1 violated the Hawaii Constitution before the marriage amendment. See id. at *6 (“The marriage amendment validated HRS § 572-1 by taking the statute out of the ambit of the equal protection clause of the Hawaii Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, HRS § 572-1 no longer is.”). Thus, the Hawaii Supreme Court never determined whether same-sex couples had a right under the Hawaii Constitution to enter into marriage. The Perry court explained the importance of this difference as follows: “The context matters. Withdrawing from a disfavored group the right to obtain
49

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 53 of 120 PageID #: 2938
a designation with significant societal consequences is different
from declining to extend that designation in the first place.”
Id. at 1079-80.
Equality Hawaii and Defendant Abercrombie assert that
nonetheless because the marriage amendment took away same-sex
couples’ right under the Hawaii Constitution to have § 572-1
reviewed under strict scrutiny, the facts in this case are
sufficiently analogous to those in Perry such that it controls.
Initially, the argument that the marriage amendment is
unconstitutional because it “took away” the judicial
determination that state constitutional challenges to § 572-1 are
reviewed under strict scrutiny conflicts with Crawford v. Board
of Education, 458 U.S. 527 (1982). In Crawford, the Supreme
Court rejected the contention that “once a State chooses to do
‘more’ than the Fourteenth Amendment requires, it may never
recede.” Id. at 539. Rather, after doing so, “the State was
free to return in part to the standard prevailing generally throughout the United States.”19/ Id. at 542. The Supreme Court
19/The Supreme Court noted in Crawford that “if the purpose of repealing legislation is to disadvantage a racial minority, the repeal is unconstitutional for this reason.” 458 U.S. at 539 n.21. It additionally noted: “[T]he Proposition only limits state courts when enforcing the State Constitution. Thus, the Proposition would not bar state-court enforcement of state statutes requiring busing for desegregation or any other purpose.” Id. at 436 n.12. Here, the classification at issue is not suspect like racial classifications. Additionally, Hawaii’s marriage amendment limits courts from determining that § 572-1
(continued...)
50

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 54 of 120 PageID #: 2939
explained that it “would not interpret the Fourteenth Amendment
to require the people of a State to adhere to a judicial
construction of their State Constitution when that Constitution
itself vests final authority in the people.” Id. at 540.
Therefore, the Supreme Court held that an amendment to the
California Constitution, passed by the people, which repealed the
California Supreme Court’s interpretation of the California
Constitution as imposing broader desegregation obligations than
those imposed by the federal Constitution, did not violate the
Fourteenth Amendment. See id. at 535-37, 537 n.14.
In any event, the Court is not persuaded by this “take-
away argument” in light of the other major differences between
Hawaii and California and the Ninth Circuit’s insistence that it
was ruling on the “narrow grounds” of the “unique and strictly
limited effect of Proposition 8.” See Perry, 671 F.3d at 1064
(emphasis added). Beyond the fact that California had granted
19/(...continued) violates the state constitution and expressly leaves the determination of whether to allow same-sex marriage to the legislature. I.e., no legislation was repealed. Moreover, as explained below, the Court rejects that the purpose of Hawaii’s marriage amendment, which gave the legislature the authority to preserve the traditional definition of marriage, is to disadvantage same-sex couples. See, e.g., Lawrence, 539 U.S. at 585 (O’Connor, J., concurring) (“[u]nlike the moral disapproval of same-sex relations . . . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”). The Court notes that the Ninth Circuit, in Perry, pursuant to its narrow holding, rejected the argument that Crawford applied. See Perry, 671 F.3d at 1083-85.
51

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 55 of 120 PageID #: 2940
same-sex couples the legal right to marry, Proposition 8 was “enacted . . . after more than 18,000 couples had married (and remained married even after Proposition 8).” Id. at 1089. In Hawaii, no same-sex couples were married at the time § 572-1 was amended or the marriage amendment was passed, nor have any ever been married in Hawaii.
Another major difference is that although California had its Domestic Partnership Act in effect before and after the adoption of Proposition 8, Hawaii’s civil unions law was not enacted until over sixteen years after the legislature amended § 572-1 and over twelve years after the people ratified the marriage amendment. Although Hawaii did pass the Reciprocal Beneficiaries Act around the time the marriage amendment was passed, this act did not provide substantially all of the incidents of marriage. The Perry court explained, “Proposition 8’s only effect was to take away th[e] important and legally significant designation [of marriage], while leaving in place all of its incidents.” Id. at 1063. Hawaii’s marriage laws did not take away the designation of marriage while leaving in place all of its incidents. The later-enacted civil unions law also did not take any rights away. Rather, it extended rights same-sex couples had never previously enjoyed.
Another difference is between the effects of Proposition 8 and Hawaii’s marriage amendment on the political
52

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 56 of 120 PageID #: 2941
process. The Perry court explained that Proposition 8 “superseded [California’s] Marriage Cases and then went further, by prohibiting the Legislature or even the People (except by constitutional amendment) from choosing to make the designation of ‘marriage’ available to same-sex couples in the future.” Id. at 1089. Significantly, unlike Proposition 8, which took the definition of marriage out of the legislative arena, Hawaii’s marriage amendment left the definition of marriage up to the legislature. Moreover, the legislature expressly stated that the amendment was designed “to ensure that the legislature will remain open to the petitions of those who seek a change in the marriage laws, and that such petitioners can be considered on an equal basis with those who oppose a change in our current marriage statutes.” 1997 Haw. Sess. Laws 1247.
Given these differences, and the Ninth Circuit’s express statement it was ruling solely on the narrow grounds of Proposition 8’s “elimination of the right of same-sex couples to marry,” Perry does not govern this case.
B. Romer v. Evans Plaintiffs and Defendant Abercrombie also rely heavily
on Romer. See Abercrombie’s Mot. Mem. 64-68, 69, 75; Pls.’ Opp’n 45. Again, this reliance is misplaced. Defendant Abercrombie argues that the only conceivable rationale for Hawaii’s marriage laws “is some form of animus or prejudice against, or moral
53

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 57 of 120 PageID #: 2942
disapproval of, gays and lesbians.” Abercrombie’s Mot. Mem. 64. He argues, therefore, “Romer is particularly instructive here.” Id.
In contrast to Amendment 2 in Romer, Hawaii’s marriage laws are not so unusual or unduly broad that they are “inexplicable by anything but animus” towards same-sex couples. See Romer, 517 U.S. at 632. Amendment 2 imposed a “comprehensive” ban on all “legislative, executive, or judicial actions at any level of state or local government designed to protect the named class [of] homosexual persons or gays and lesbians.” Id. at 624. Amendment 2 effectively repealed municipal ordinances and rescinded protections in the government sphere such as bans on employment discrimination and discrimination at state colleges. 517 U.S. at 629-30. The Supreme Court also concluded that it was “a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings.” Id. at 630.
Here, Hawaii’s marriage laws are not “inexplicable by anything but animus” towards homosexuals. The First Circuit similarly rejected the argument that DOMA’s dominant purpose was hostility towards homosexuals. See Mass. v. HHS, 682 F.3d at 11. It explained that the many legislators who supported the law
54

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 58 of 120 PageID #: 2943
“acted from a variety of motives,” including the “central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.” See id. The First Circuit determined that “[p]reserving th[e] institution [of traditional marriage] is not the same as mere moral disapproval of an excluded group, and that is singularly so in this case given the range of bipartisan support for [DOMA].” Id. (internal citation omitted); see Windsor v. United States, 833 F. Supp. 2d 394, 403 n.3 (S.D.N.Y. 2012) (same). The First Circuit’s decision is consistent with Justice O’Connor’s concurrence in Lawrence. Justice O’Connor explained that “[u]nlike the moral disapproval of same-sex relations . . . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.” Lawrence, 539 U.S. at 585 (O’Connor, J., concurring).
In Romer, the Supreme Court explained that the “disqualification of a class of persons from the right to seek specific protection from the law [was] unprecedented.” 517 U.S. at 633. The Supreme Court found the absence of precedent for Amendment 2 instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Id. (internal quotations). Here, in contrast, the definition of marriage as a union between a man and woman is not without
55

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 59 of 120 PageID #: 2944
precedent or unusual. In fact, it is the historically and traditionally understood definition; while marriages between same-sex couples was first allowed by a state in 2004 and since then, only by a minority of states. See Smelt, 447 F.3d at 68081 & n.18; see also Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 239 (D. Mass. 2010). As Defendant Fuddy explained, “to say that in preserving the traditional definition of marriage Hawaii – along with at least 41 other states and not to mention numerous judges and justices who have upheld such laws – has acted . . . absurdly, ignorantly, or with bigotry, such that the federal judiciary must take the extraordinary step of intervening and overthrowing the democratic process, is simply untenable.” Fuddy’s Mot. Mem. 29.
The actions of the state do not support that the legislature and people of Hawaii acted out of pure animus towards homosexuals in adopting Hawaii’s marriage laws. Specifically, during the same legislative session that the legislature passed the proposed amendment to the Hawaii Constitution, the legislature also passed the Reciprocal Beneficiaries Act. In the findings under this act, the legislature specifically noted that through the act, certain rights and benefits previously available only to married couples would become available to certain individuals in same-sex relationships. See H.R.S. § 572C-2. Subsequently, in 2011, the legislature passed the civil unions
56

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 60 of 120 PageID #: 2945
law, granting same-sex couples all of the state legal rights of marriage (except for the title marriage).
Furthermore, in its forthcoming analysis, the Court explains that there is a rational basis for the laws at issue. Thus, unlike in Romer, the classification is not “inexplicable by anything but animus” toward same-sex couples. See Bruning, 455 F.3d at 868 (determining that a state law limiting marriage to opposite-sex couples was not “inexplicable by anything but animus towards same-sex couples” and thus Romer did not control) (internal quotations omitted).
C. Plaintiffs’ Due Process Claim The “liberty” the Due Process Clause protects includes
more than the absence of physical restraint. Washington v. Glucksberg, 521 U.S. 702, 719 (1997). In substantive due process challenges in which this liberty is at issue, laws implicating a fundamental right are subject to heightened scrutiny. Id. at 720. A state law that does not implicate a fundamental right or suspect classification, however, is subject to rational basis review. Id. at 722.
It is undisputed that there is a fundamental right to marry. Defendant Abercrombie asserts that the fundamental right to marry includes the right of same-sex couples to marry. See Abercrombie’s Mot. Mem. 27. Plaintiffs state that the right they seek is not “the right to same sex marriage” but the fundamental
57

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 61 of 120 PageID #: 2946
“right to marry the person of one’s choice.” Pls.’ Opp’n 14. In contrast, Defendant Fuddy and HFF state that the existing fundamental right to marry does not include a right to marry someone of the same-sex. See HFF’s Mot. Mem. 18; Fuddy’s Mot. Mem. 16.
The Supreme Court has emphasized its “reluctan[ce] to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Glucksberg, 521 U.S. at 720 (internal quotations omitted). “By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” Id. Consequently, “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal citations omitted). In considering a challenge to “Don’t Ask, Don’t Tell,” (“DADT”), Judge O’Scannlain explained that “[t]his note of caution is especially important in cases such as this one, where moral and personal passions run high and where there is great risk that ‘the liberty protected by the Due Process Clause [will] be subtly transformed into the policy preferences’ of unelected judges.’” Log Cabin Republicans v. United States, 658 F.3d 1162, 1174 (9th Cir. 2011) (O’Scannlain,
58

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 62 of 120 PageID #: 2947
J., concurring) (quoting Glucksberg, 521 U.S. at 720). Accordingly, the established method of substantive due
process analysis has two primary features: first, courts require a “careful description of the asserted fundamental liberty interest”; and second, the courts consider whether the right is “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if it were sacrificed.” Glucksberg, 521 U.S. at 720-21 (internal quotations and citations omitted).
1. Description of the Asserted Fundamental Right In describing the asserted fundamental right, the Supreme Court “has eschewed breadth and generality in favor of narrowness, delicacy, and precision.” Log Cabin Republicans, 653 F.3d at 1169 (O’Scannlain, J., concurring). For example, in Reno v. Flores, 507 U.S. 292 (1993), the Supreme Court determined that the right at issue in a challenge to a regulation governing release of detained alien juveniles was not the right to be free from physical restraint, but was “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government operated or government-selected child care institution.” Id. at 302.
59

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 63 of 120 PageID #: 2948
The Ninth Circuit followed suit in Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007), a case challenging the constitutionality of the Controlled Substances Act as applied to users and growers of marijuana for medical purposes. The Ninth Circuit explained that Raich’s asserted right to “mak[e] lifeshaping medical decisions that are necessary to preserve the integrity of her body, avoid intolerable physical pain, and preserve her life” does “not narrowly and accurately reflect the right that she seeks to vindicate.” Id. at 862-64 (alteration in original). “Conspicuously missing from Raich’s asserted fundamental right is its centerpiece: that she seeks the right to use marijuana to preserve bodily integrity, avoid pain, and preserve her life.” Id. at 864. Similarly, missing from Plaintiffs’ asserted “right to marry the person of one’s choice” is its centerpiece: the right to marry someone of the same gender.
Defendant Abercrombie’s assertion that the right to marry someone of the same gender is contained in the existing “right to marry” is unsupported in case law. To credit this argument would require ignoring that the term “‘marriage ordinarily contemplates a relationship between a man and a woman.’” Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir. 1982) (citing Webster’s Third New International Dictionary 1384 (1971); Black’s Law Dictionary 876 (5th ed. 1979)). Significantly, the
60

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 64 of 120 PageID #: 2949
Supreme Court cases involving the fundamental right to marry all
involved opposite-sex couples.
Consequently, the Supreme Court, in discussing the
fundamental right to marry, has had no reason to consider
anything other than the traditional and ordinary understanding of
marriage as a union between a man and a woman. Furthermore, in
discussing the importance of marriage, the Supreme Court has often linked marriage to procreation.20/ See Zablocki v. Redhail,
434 U.S. 374, 383 (U.S. 1978) (“[Marriage] is the foundation of
the family in our society. . . . [I]f appellee’s right to
procreate means anything at all, it must imply some right to
enter the only relationship in which the State of Wisconsin
allows sexual relations legally to take place.”); Loving v.
Virginia, 388 U.S. 1, 12 (1967) (“Marriage is one of the ‘basic
civil rights of man,’ fundamental to our very existence and
survival.”); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)
20/Although same-sex couples now have the ability to procreate with the assistance of technology and third-parties, there is nothing in the aforementioned Supreme Court cases to indicate the Supreme Court was considering anything other than natural procreation. Furthermore, these cases were decided between 1885-1978, the latter being at the infancy of the introduction of artificial insemination as a viable option for women to conceive without engaging in intercourse. See Erica Davis, The Rise of Gestational Surrogacy and the Presiding Need for International Regulation, 21 Minn. J. Intl. L. 120, 122 (2012) (explaining that the advances in artificial insemination in the 1980s “opened the door to . . . allowing single people and homosexual couples access to assisted reproductive technology, including the surrogacy market”).
61

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 65 of 120 PageID #: 2950
(“Marriage and procreation are fundamental to the very existence
and survival of the race.”); Maynard, 125 U.S. at 211
(“[Marriage] is an institution, in the maintenance of which in
its purity the public is deeply interested, for it is the
foundation of the family and of society, without which there
would be neither civilization nor progress.”); Murphy v. Ramsey,
114 U.S. 15, 45 (1885) (“[N]o legislation can be supposed more
wholesome and necessary in the founding of a free, self-governing
commonwealth . . . than that which seeks to establish it on the
basis of the idea of the family, as consisting in and springing
from the union for life of one man and one woman in the holy
estate of matrimony.”) (emphasis added). Thus, “in recognizing a
fundamental right to marry, the [Supreme] Court has only
contemplated marriages between persons of opposite sexes -
persons who had the possibility of having children with each
other.” Dean v. Dist. of Columbia, 653 A.2d 307, 333 (D.C. 1995).21/
21/Other courts have also recognized that Supreme Court jurisprudence does not support a fundamental right to marry someone of the same sex. See In re Kandu, 315 B.R. at 140 (“Even if this Court believes there should be a fundamental right to marry someone of the same sex, it would be incorrect to suggest that the Supreme Court, in its long line of cases on the subject, conferred the fundamental right to marry on anything other than a traditional, opposite-sex relationship.”); Andersen v. King Cnty., 138 P.3d 963, 999 (Wash. 2006) (plurality) (“The fundamental right of a man and woman to marry is linked with the related fundamental right to procreate, as noted in Skinner. Every United States Supreme Court decision concerning the right
(continued...) 62

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 66 of 120 PageID #: 2951
Other courts considering claims that same-sex couples have a fundamental right to marry, have concluded that the right at issue is not the existing fundamental “right to marry.” See Wilson, 354 F. Supp. 2d at 1305; In re Kandu, 315 B.R. at 140; Smelt, 374 F. Supp. 2d at 879; Conaway v. Deane, 932 A.2d 571, 619 (Md. 2007) (evaluating challenge under Maryland Constitution); Lewis v. Harris, 908 A.2d 196, 210-211 (N.J. 2006) (evaluating challenge under New Jersey constitution); Baehr v. Lewin, 852 P.2d at 56-57 (evaluating challenge under Hawaii Constitution); In re Marriage of J.B. & H.B., 326 S.W.3d 654, 675 (Tex. App. 2010); but see Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 993 (N.D. Cal. 2011). The Court agrees that the right at issue here is an asserted new right to same-sex marriage.
2. The Nation’s History and Tradition It is beyond dispute that the right to same-sex marriage is not “objectively, deeply rooted in this Nation’s history and tradition.” See In re Kandu, 315 B.R. at 140 (“[T]here are no grounds to conclude objectively that same-sex marriages are deeply rooted in this Nation’s history and
21/(...continued) to marry has assumed marriage as the union of one man and one woman. Every party in every right to marry case that the Supreme Court has ever decided included one man in union with one woman. Those decisions do not support any claim other than the right to marry a person of the opposite sex.”)(internal citations omitted); Dean, 653 A.2d at 333 (“[W]e cannot overlook the fact that the Supreme Court has deemed marriage a fundamental right substantially because of its relationship to procreation.”).
63

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 67 of 120 PageID #: 2952
tradition.”); Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006) (“The right to marry someone of the same sex . . . is not ‘deeply rooted.’”). In fact, “it has not even been asserted until relatively recent times.” Hernandez, 855 N.E.2d at 10. Furthermore, as Defendant Abercrombie recognizes, it was 2004 before any state allowed same-sex couples to marry. See Abercrombie’s Mot. Mem. 31; Massachusetts, 698 F. Supp. 2d at 239. The Ninth Circuit has recognized that the definition of marriage as “a consensual, contractual personal relationship between a man and a woman. . . . is not peculiar; indeed it is traditional.” Smelt, 447 F.3d at 680 & n.18 (citing 2 Samuel Johnson, A Dictionary of the English Language (London, W. Strahan et. al. 1755) (Marriage is: “The act of uniting a man and woman for life.” To marry is: “To join a man and woman.”); Noah Webster, A Compendious Dictionary of the English Language 185 (1806) (Marriage is: “the act of joining man and woman.”); Webster’s Third New International Dictionary 1384 (3d ed. 1986) (Marriage is: “the state of being united to a person of the opposite sex as husband or wife.”); Black’s Law Dictionary 972 (6th ed. 1990) (Marriage is: “Legal union of one man and one woman as husband and wife.”); The Compact Oxford English Dictionary 1039 (2d ed. 1994) (Marriage is: “The condition of being a husband or wife. . . .”)).
Defendant Abercrombie argues that the reliance on the
64

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 68 of 120 PageID #: 2953
history and tradition of the Nation is erroneous given the Supreme Court’s statement in Lawrence that “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Abercrombie’s Reply 6-7 (citing 539 U.S. 577-78). Defendant Abercrombie relies on the Supreme Court’s decision in Loving v. Virginia, 388 U.S. 1 (1967), in which the Supreme Court struck Virginia’s anti-miscegenation statute as violating interracial couples’ fundamental right to marry. Defendant Abercrombie asserts that there was no history and tradition of interracial marriage and yet the Supreme Court still analyzed the case as asserting a fundamental right. Abercrombie’s Reply 6-7. In Loving, however, the Supreme Court was considering the long recognized right to marry. 388 U.S. at 12. The case did not involve expanding the traditional definition of marriage as being between a man and a woman. This case presents a different right, the right to marry someone of the same sex. The fact that this right is not objectively rooted in the Nation’s history does not prohibit statutes defining marriage as a union between a man and woman from constitutional attack. Instead, it precludes the right to marry someone of the
65

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 69 of 120 PageID #: 2954
same-sex from being a fundamental right.22/23/ See In re Kandu,
315 B.R. at 140 (holding that because same-sex marriage is not
deeply rooted in the history and tradition of our Nation, it is
not a fundamental right); Conaway, 932 A.2d at 619-28 (rejecting
Defendant Abercrombie’s asserted Loving analogy and holding that
there is no fundamental right to marry someone of the same-sex
under the Maryland Constitution because it is not deeply rooted
in history and tradition); Lewis, 908 A.2d at 211 (rejecting
Defendant Abercrombie’s asserted Loving analogy and concluding
that “[w]e cannot find that a right to same-sex marriage is so
deeply rooted in the traditions, history, and conscience of the
people of this State that it ranks as a fundamental right”).
Defendant Abercrombie also relies on the Supreme
Court’s statement in Lawrence that “[h]istory and tradition are
the starting point but not in all cases the ending point of the
substantive due process inquiry.” Abercrombie’s Reply at 6-7
22/Defendant Abercrombie and Plaintiffs’ further analogies to Loving are unpersuasive in this case. Loving involved an invidious discrimination on the basis of race, a suspect classification. See Loving, 388 U.S. at 8-9.
23/The Court recognizes that although the lack of history and tradition can prevent an asserted right from being fundamental, “[t]radition alone never can provide sufficient cause to discriminate against a protected class, for ‘[neither] the length of time a majority [of the populace] has held its convictions [nor] the passions with which it defends them can withdraw legislation from [the] [c]ourt’s scrutiny.” Kerrigan, 957 A.2d at 479 (alterations in original) (citing Bowers v. Hardwick, 478 U.S. 186, 210 (1986) (Blackmun, J., dissenting)).
66

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 70 of 120 PageID #: 2955
(citing Lawrence, 539 U.S. at 572). Defendant Abercrombie then states that “by overruling Bowers, Lawrence made the recognition of a fundamental right to same sex marriage plausible.” Id. at 7. Significantly, however, as Justice Scalia points out in dissent, although there was discussion of fundamental propositions and fundamental decisions, “nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’” 539 U.S. at 586 (Scalia, J., dissenting). Second, the Supreme Court never stated that history and tradition are not important in determining whether an asserted new right is fundamental. Finally, the Supreme Court explicitly stated that Lawrence did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id. at 578. As the Eleventh Circuit explained, “it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right.” Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004); see also Wilson, 354 F. Supp. 2d at 1306 (“[T]he Supreme Court’s decision in Lawrence cannot be interpreted as creating a fundamental right to same-sex marriage.”).
Accordingly, the right to same-sex marriage is not a
67

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 71 of 120 PageID #: 2956
fundamental right. Because Hawaii’s marriage laws do not implicate a suspect classification, as discussed infra, Plaintiffs’ claim that Hawaii’s marriage laws violate the Due Process Clause is therefore subject to rational basis review.
D. Plaintiffs’ Equal Protection Claim Laws alleged to violate the Equal Protection Clause are
subject to one of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis review. Clark v. Jeter, 486 U.S. 456, 461 (1988). Strict scrutiny applies when a classification is based on race, alienage, or national origin. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985). Under strict scrutiny review, a state must show the challenged classification is narrowly tailored to further a compelling governmental interest. Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Intermediate scrutiny applies to classifications based on illegitimacy and gender. Cleburne, 473 U.S. at 441. A classification fails intermediate scrutiny review unless it is substantially related to a sufficiently important governmental interest. Id. Other classifications are subject to rational basis review. See id. at 440-41. Under rational basis review, a classification will be upheld as long as there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 319 (1993).
68

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 72 of 120 PageID #: 2957
1. Gender Discrimination Plaintiffs assert that § 572-1 discriminates on the basis of gender because it permits a man and a woman to marry but neither two men nor two women to marry. Am. Compl. ¶ 101. Contrary to Plaintiffs’ assertions, however, the statute does not discriminate on the basis of gender. Section 572-1 does not treat males and females differently as a class. It is gender-neutral on its face; it prohibits men and women equally from marrying a member of the same-sex. A facially gender-neutral statute may nonetheless discriminate on the basis of sex if “the adverse effect reflects invidious gender-based discrimination.” Personnel Adm’r v. Feeney, 442 U.S. 256, 274 (1979); see also In re Kandu, 315 B.R. at 143 (“The test to evaluate whether a facially gender-neutral statute discriminates on the basis of sex is whether the law can be traced to a discriminatory purpose.”) (internal quotations omitted). There is nothing in the legislative history or elsewhere that suggests that the purpose of § 572-1 is to discriminate against men or women as a class. The Court thus agrees with the vast majority of courts considering the issue that an opposite-sex definition of marriage does not constitute gender discrimination. See Smelt, 374 F. Supp. 2d at 876-77; Wilson, 354 F. Supp. 2d at 1307-08; In re Kandu, 315 B.R. at 143; In re Marriage Cases, 183 P.3d at 439
69

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 73 of 120 PageID #: 2958
(“[D]iscrimination on the basis of sex, and discrimination on the basis of sexual orientation . . . traditionally have been viewed as distinct phenomena”); Conaway, 932 A.2d at 599; Andersen v. King Cnty., 138 P.3d 963, 987–89 (Wash. 2006) (plurality); Hernandez, 855 N.E.2d at 10-11; Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999); Singer v. Hara, 522 P.2d 1187, 1192 (Wash. Ct. App. 1974); but see Perry v. Schwarzenegger, 704 F. Supp. 2d at 996 (“Sexual orientation discrimination can take the form of sex discrimination.”); Golinski, 824 F. Supp. 2d at 982 n.4 (same); Baehr v. Lewin, 852 P.2d at 63 (plurality) (concluding opposite-sex definition of marriage discriminated on the basis of sex).
2. Sexual Orientation Discrimination Although the Supreme Court has never determined whether sexual orientation classifications should be subject to heightened scrutiny, the Ninth Circuit, in High Tech Gays v. Defense Industry Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), held that homosexuality is not a suspect or quasisuspect classification.24/ See id. at 573-74. In making this determination, the Ninth Circuit noted that the ruling in Bowers
24/Although the Ninth Circuit was considering the equal protection component of the Fifth Amendment in High Tech Gays, it expressly noted that the Supreme Court’s approach to “‘Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.’” 895 F.2d at 571 (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)).
70

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 74 of 120 PageID #: 2959
v. Hardwick, 478 U.S. 186 (1986), that homosexual conduct could
be criminalized was “incongruous” with deeming homosexuals a
suspect or quasi-suspect class. High Tech Gays, 895 F.2d at 573-
74. The Ninth Circuit went on to analyze whether homosexuals
were a suspect class in light of the major considerations for
such treatment – a history of discrimination, immutability, and
politically powerlessness. Id. The Ninth Circuit concluded that
although homosexuals have suffered a history of discrimination,
sexual orientation is not immutable but behavioral and
homosexuals are not without political power. Id.
The Ninth Circuit has not overruled High Tech Gays and
has continued to cite it for the proposition that homosexuals are
not a suspect class.25/ In Flores v. Morgan Hill Unified School
District, 324 F.3d 1130 (9th Cir. 2003), the Ninth Circuit cited
High Tech Gays for its conclusion that “homosexuals are not a
25/The Ninth Circuit is not alone. The circuits that have addressed this issue, i.e., all circuits but the Second and Third Circuits, have unanimously declined to treat sexual orientation classifications as suspect. See Price-Cornelison v. Brooks, 524 F.3d 1103, 113-14 & n.9 (10th Cir. 2008); Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Bruning, 455 F.3d at 866-67; Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103-04 (D.C. Cir. 1987); see also Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) (explaining outside the prison context, sexual orientation classifications are subject to rational basis review).
71

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 75 of 120 PageID #: 2960
suspect or quasi-suspect class, but are a definable group entitled to rational basis scrutiny for equal protection purposes.” See id. at 1137. In Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), a case involving DADT, the Ninth Circuit, citing High Tech Gays, stated that “homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny.” Id. at 1425. In Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), the Ninth Circuit expressly stated that “Philips clearly held that DADT does not violate equal protection under rational basis review, and that holding was not disturbed by Lawrence, which declined to address equal protection.” Id. at 821 (internal citation omitted) (emphasis added).
Plaintiffs assert that this Court is nonetheless not bound by High Tech Gays, relying on the reasoning set forth by the district court in Golinski v. Office of Personnel Management, 825 F. Supp. 2d 968 (N.D. Cal. 2012). Both Defendant Abercrombie and the court in Golinski contend that because Lawrence overruled Bowers, the Ninth Circuit’s decision is no longer good law. See Golinski, 824 F. Supp. 2d at 984; Abercrombie Mot. Mem. 42-43. The court in Golinski further determined, and Defendant Abercrombie argues, that the Ninth Circuit had also relied on “the mistaken assumption” that sexual orientation is “merely behavioral,” rather than the type of immutable characteristic
72

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 76 of 120 PageID #: 2961
that warrants heightened scrutiny. See Golinski, 824 F. Supp. 2d at 984 (internal quotations omitted); Abercrombie’s Mot. Mem. 4546. Defendant Abercrombie further argues that “High Tech’s notpolitically-powerless conclusion is also not binding in light of subsequent factual developments . . ., including the overwhelming nationwide backlash provided by Hawaii’s Baehr decision.” Abercrombie’s Mot. Mem. 48.
If the Supreme Court or a Ninth Circuit en banc decision “undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable,” this Court is not bound by a Ninth Circuit panel decision. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (“In future cases of . . . clear irreconcilability, . . . district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.”); see Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1013 (9th Cir. 2010). Putting aside the fact that the Ninth Circuit has continued to state that sexual orientation classifications are not suspect, no Supreme Court decision has undercut the entire reasoning of High Tech Gays in a way that is “clearly irreconcilable.”
The reliance by Plaintiffs and Defendant Abercrombie on Lawrence is misplaced. The majority in Lawrence did not apply an equal protection analysis. Justice O’Connor did so in her
73

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 77 of 120 PageID #: 2962
concurrence and determined that rational basis review was appropriate where “the challenged legislation inhibits personal relationships.” Lawrence, 539 U.S. at 579-81 (O’Connor, J., concurring). Although Lawrence did nonetheless undercut the reasoning that homosexual conduct could be criminalized, the decision is not “clearly irreconcilable” with the balance of the Ninth Circuit’s reasoning, i.e., homosexuality is not immutable but behavioral and that homosexuals are not without political power. Furthermore, post-Lawrence, in Witt, the Ninth Circuit stated that Lawrence did not disturb the holding that DADT did not violate equal protection under rational basis review. Witt, 527 F.3d at 821.
Defendant Abercrombie asserts that the Ninth’s Circuit immutability “finding” cannot be reconciled with “current empirical evidence,” the Ninth Circuit’s decision in HernandezMontiel v. INS, 225 F.3d 1084 (9th Cir. 2000), and the Supreme Court’s decision in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010). Abercrombie’s Mot. Mem. 44-47. The Court first notes that its determination of what current empirical evidence may dictate does not give it authority to disregard binding Ninth Circuit precedent.
Defendant Abercrombie’s reliance on Hernandez-Montiel is also misguided. In Hernandez-Montiel, a Ninth Circuit panel determined that gay men with female sexual identities in Mexico
74

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 78 of 120 PageID #: 2963
comprised a particular social group for purposes of an asylum statute. 225 F.3d at 1094. In reaching its conclusion, the Ninth Circuit stated 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.” Id. at 1093. This decision did not discuss suspect classifications or equal protection. Thus, the Ninth Circuit did not overrule High Tech Gays (nor could it, being only a three-judge panel). See Miller, 335 F.3d at 900. Because the Ninth Circuit has not overruled High Tech Gays, regardless of whether the reasoning of a later Ninth Circuit panel decision is inconsistent with the reasoning in High Tech Gays, High Tech Gays remains binding on this Court unless the reasoning of a Supreme Court or Ninth Circuit en banc decision is clearly irreconcilable. See Brumsickle, 624 F.3d 990 at 1013 (“[I]n the face of intervening Supreme Court and en banc opinions, a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.”) (emphasis added) (alteration in original) (internal quotations omitted).
Defendant Abercrombie argues that the Ninth Circuit’s immutability finding improperly separated orientation from conduct and is thus irreconcilable with Christian Legal Society. Specifically, in High Tech Gays, the Ninth Circuit stated:
75

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 79 of 120 PageID #: 2964
“Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes. The behavior of such already recognized classes is irrelevant to their identification.” 895 F.2d at 573. In Christian Legal Society, the Supreme Court determined that excluding those students who engaged in “unrepented homosexual conduct” from affiliation with a student club was in effect discrimination based on sexual orientation. 130 S. Ct. at 2990. Specifically, the Supreme Court rejected the argument that the policy at issue did not exclude individuals because of sexual orientation, “but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong.’” Id. In reaching this conclusion, the Supreme Court stated that its “decisions have declined to distinguish between status and conduct in this context.” Id. (emphasis added). In Christian Legal Society, the Supreme Court was considering a First Amendment challenge to a university’s anti-discrimination policy, not an equal protection challenge, and significantly, did not discuss whether homosexuality was immutable. See id. at 2988-90. Thus, Christian Legal Society is not “clearly irreconcilable” with the Ninth Circuit’s determination that homosexuals are different from other suspect classes because homosexual behavior is not immutable in the sense that the
76

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 80 of 120 PageID #: 2965
class’s behavior is relevant to identifying homosexuals. With regard to the Ninth’s Circuit’s conclusion that
homosexuals are not without political power, Defendant Abercrombie asserts that “[a] ruling resting on a particular complex of facts cannot bind a subsequent court faced with a very different and novel set of facts.” Abercrombie’s Mot. Mem. 48. In reaching its conclusion, the Ninth Circuit explained: “Legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through the passage of anti-discrimination legislation. Thus, homosexuals are not without political power; they have the ability to and do attract the attention of the lawmakers, as evidenced by such legislation.” High Tech Gays, 895 F.2d at 574.
First, the Court notes that homosexuals have continued to attract the attention of law makers and gain more rights. For example, Hawaii has enacted the civil unions law and the Governor has moved for partial summary judgment in favor of Plaintiffs in this case. On a nationwide level, in Golinski, 132 democratic members of Congress submitted an amicus brief to the Ninth Circuit detailing why they believe DOMA should be ruled unconstitutional. See Golinski, No. 12-5409, Doc. No. 87 (9th Cir.). President Obama and Attorney General Holder support gay marriage and refuse to defend Section 3 of DOMA. See Letter from
77

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 81 of 120 PageID #: 2966
Eric H. Holder, Jr., Att’y Gen., to Rep. John A. Boehner, Speaker of the House, Letter to Congress on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), http://www.justice.gov/ opa/pr/2011/ February/11-ag-223.html. The Democratic National Committee recently announced it would add pro-gay marriage language into their official party platform. See Teresa Welsh, Should Gay Marriage Be on the Democratic Party Platform, U.S. News (August 1, 2012) http://www.usnews.com/opinion/articles/2012 /08/01/should-gay-marriage-be-on-the-democratic-party-platform. Second, Defendant Abercrombie’s argument that this Court is not bound by High Tech Gays because of the “novel” and “complex” set of facts in this case is without merit. Whether sexual orientation classifications are suspect is a question that does not depend on the particular or “novel” facts of a case. Third, the Court’s own conclusion about the political power of homosexuals does not give it authority to overrule binding Ninth Circuit precedent.
In sum, the Court cannot conclude that the state of the law is such that the Supreme Court has eviscerated the holding that homosexuals are not a suspect class. See In re Kandu, 315 B.R. at 143-44 (concluding the court was bound by the Ninth Circuit’s decision in High Tech Gays that homosexuals do not constitute a suspect or quasi-suspect class). Consequently, the Court does not have the power to overrule the Ninth Circuit’s
78

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 82 of 120 PageID #: 2967
determination that homosexuals do not constitute a suspect class.26/ The Court therefore follows the precedent of the eleven circuits that have addressed this issue, including binding Ninth Circuit precedent, that sexual orientation classifications are not suspect. See supra, n.25 (collecting cases). Accordingly, rational basis review applies to Plaintiffs’ claim under the Equal Protection Clause.
E. Rational Basis Review
1. Standard
A court applying rational basis review will uphold a law so long as the legislative classification bears a rational relationship to some legitimate end. Romer, 517 U.S. at 631. Rational basis review does not authorize “the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Heller, 509 U.S. at 319 (internal quotations omitted). Rather, it is “a paradigm of judicial restraint.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993).
26/Because the Court is bound by Ninth Circuit precedent, the facts stated in Defendant Abercrombie’s CSF that are used to support his argument that homosexuals are a suspect class, including assertions related to the immutability and political power of homosexuals, are not material to the Court’s decision. Thus it is unnecessary for the Court to evaluate these highly controversial statements. Accordingly, the fact that Defendant Fuddy and HFF dispute these assertions does not render summary judgment inappropriate.
79

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 83 of 120 PageID #: 2968
“In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313. This wide latitude afforded to states is because “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” Cleburne, 473 U.S. at 440.
Due to this wide latitude, under rational basis review, a law is presumed constitutional and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Heller, 509 U.S. at 320 (internal quotations omitted). A state is not required to produce evidence to sustain the rationality of a statutory classification and courts must “accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Id. at 320-21. Furthermore, the judiciary does not require a legislature to articulate its reasons for enacting a statute, and thus “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Beach Commc’ns, 508 U.S. at 315.
Plaintiffs argue that the Court should not apply this
80

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 84 of 120 PageID #: 2969
ordinary rational basis review. Rather, they argue that the Court should apply “a more searching form of rational basis review.” Pls.’ Opp’n 19. Plaintiffs rely on the First Circuit’s recent decision in Mass. v. HHS, 682 F.3d 1 (1st Cir. 2012). Both Plaintiffs and the First Circuit rely on City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985), Department of Agriculture v. Moreno, 413 U.S. 528 (1973), and Romer, in asserting the Court should apply this “more searching form” of review.
In considering a challenge to DOMA, the First Circuit noted that the plaintiffs could not prevail under regular rational basis review. Mass. v. HHS, 682 F.3d at 9. The First Circuit forecasted “that the extreme deference accorded to ordinary economic legislation . . . would not be extended to DOMA by the Supreme Court.” Id. at 11. Thus, the First Circuit applied an “intensified scrutiny” based on a combination of equal protection and federalism concerns. See id. at 8 (“[E]qual protection and federalism concerns . . . combine – not to create some new category of ‘heightened scrutiny’ for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.”).
As an obvious distinction with the First Circuit’s
81

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 85 of 120 PageID #: 2970
decision, this case does not involve the same federalism concerns. In Mass. v. HHS, a federal court was asked to strike a federal statute that encroached on an area of law historically left to the states. Here, Plaintiffs ask a federal court to strike down a state statute regulating an area of law historically within the prerogative of the states.
Moreover, the First Circuit’s “intensified” standard is inconsistent with the Ninth Circuit’s decision in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). In Adams, the Ninth Circuit held that a provision of the Immigration and Nationality Act denying spouses of homosexual marriages the preferences accorded to spouses of heterosexual marriages did not violate the equal protection component of the Fifth Amendment. Id. at 104143. The Ninth Circuit applied ordinary rational basis review to the provision. Id. at 1042-43. It explained that “Congress manifested its concern for family integrity when it passed laws facilitating the immigration of the spouses of some valid heterosexual marriages,” and that “[i]n effect, Congress has determined that preferential status is not warranted for spouses of homosexual marriages.” Id. It upheld the statute, explaining, “[p]erhaps this is because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores.”27/ Id.
27/The Ninth Circuit noted that “some lesser standard of (continued...)
82

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 86 of 120 PageID #: 2971
Plaintiffs’ proposed intensified review conflicts with the Eighth Circuit’s decision in Bruning. In Bruning, the Eighth Circuit held that an amendment to the Nebraska Constitution prohibiting same-sex marriage and the equivalent of civil unions did not violate the Equal Protection Clause. See Bruning, 455 F.3d at 868-69. After noting that the institution of marriage has always been the predominant concern of state government in our federal system, the Eighth Circuit concluded that rational basis review must be “particularly deferential” in this area. Id. at 867.
Finally, the cases relied upon by Plaintiffs do not support a new level of “intensified scrutiny.” In Romer, the Supreme Court stated that Amendment 2 “fails, indeed defies, even th[e] conventional [rational basis] inquiry.” 517 U.S. at 631-32 (emphasis added). In Cleburne, the Supreme Court invalidated an ordinance as applied to a permit denial for a group home for the mentally disabled. See Cleburne, 473 U.S. at 435. The Supreme Court applied the “general rule” that “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. at 440. It concluded, however, that the municipality failed to show how any legitimate concern applied particularly to
27/(...continued) review” may apply to Congress’s immigration laws. Adams, 673 F.2d at 1042. The Ninth Circuit found it unnecessary to make such a determination, however, because the statute survived ordinary rational basis review. Id.
83

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 87 of 120 PageID #: 2972
mentally retarded residents and not to many other people who could occupy a group home without a permit, such as boarding houses, fraternity houses, hospitals, and nursing homes. Id. at 450. The Court thus concluded the ordinance “appear[ed] to rest on an irrational prejudice against mentally retarded.” Id. In Moreno, the Supreme Court struck a statutory classification that rendered households containing unrelated individuals ineligible under the Food Stamp Act. See Moreno, 413 U.S. at 537-38. The Supreme Court applied a “traditional equal protection analysis,” but concluded that the classification was “not only ‘imprecise,’ it [was] wholly without any rational basis.” Id. at 533, 538 (emphasis added).
The Supreme Court has directed that if Supreme Court precedent has direct application in a case, “yet appears to rest on reasons rejected in some other line of decisions,” the lower courts “should follow the case which directly controls, leaving to th[e] [Supreme] Court the prerogative of overruling its own decisions.” Tenet v. Doe, 544 U.S. 1, 10-11 (2005) (internal quotations omitted). These three cases do not establish a new form of review. In these cases, the Supreme Court expressly stated it was applying the “conventional,” “general,” and “traditional” rational basis analysis. Rather, these cases dictate that a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest. See Romer, 517 U.S. at 634-35; Cleburne, 473 U.S. at 446-47; Moreno, 413 U.S. at 538. The Court has already concluded, however, that
84

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 88 of 120 PageID #: 2973
Hawaii’s marriage laws are not based on a bare desire to harm homosexuals and thus this case is not controlled by these three decisions.
Under this conventional rational basis review, “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.S. at 315. Again, the question is not whether the rationales set forth actually motivated the legislature (or people who ratified the marriage amendment), are supported by empirical evidence, or are wise. Instead, it is whether Hawaii could have reasonably believed, or rationally speculated, that Hawaii’s marriage laws furthered any legitimate interest.
Here, the Court is faced with cross-motions for summary judgment. In a rational-basis challenge to a legislative classification contained in a law, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Id. Thus, if the evidence, viewed in the light most favorable to HFF and Defendant Fuddy, shows that there is no conceivable rational basis for Hawaii’s marriage laws, summary judgment in favor of Plaintiffs is appropriate. On the other hand, if the evidence, viewed in the light most favorable to Plaintiffs, shows that there is any reasonably conceivable rational basis for the policy, HFF and Defendant Fuddy are
85

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 89 of 120 PageID #: 2974
entitled to summary judgment. Disputes of fact that might normally preclude summary
judgment in other civil cases, will generally not be substantively material in a rational basis review. See Vance v. Bradley, 440 U.S. 93, 110-11 (1979). That is, the question before this Court is not whether the legislative facts are true, but whether they are “at least debatable.” See Heller, 509 U.S. at 326; Lupert v. Cal. State Bar, 761 F.2d 1325, 1328 (9th Cir. 1985) (“None of the factual issues raised at trial or on appeal is relevant to the rational basis analysis. We need only examine whether the statute has a conceivable basis rationally related to a legitimate governmental purpose.”).
2. Application Defendant Fuddy argues that there are at least two reasons that the legislature could rationally endorse the traditional view that marriage shall be only between a man and a woman. Fuddy’s Mot. Mem. 29. First, she contends that the state has a legitimate and rational interest in encouraging the stability of naturally procreative relationships. Id. She states that opposite-sex couples are different from same-sex couples because of their “ability to procreate naturally,” and such difference rationally justifies their different treatment under Hawaii law. Id. at 35. Second, Defendant Fuddy contends that Hawaii’s marriage laws support Hawaii’s interest in proceeding with caution when considering changes to the traditional definition of marriage. Id. at 38.
86

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 90 of 120 PageID #: 2975
HFF argues that the following three interests
rationally relate to Hawaii’s opposite-sex definition of
marriage: (1) “steering the natural procreative capacity of
opposite-sex couples into marriage”; (2) “promoting the ideal
that, wherever possible, children are raised by both their mother
and father”; and (3) “reserving watershed changes to such a
fundamental and important social institution to the legislature
as the policymaking branch.” HFF’s Mot. Mem. 20.
Plaintiffs and Defendant Abercrombie contend that these asserted interests are irrational.28/ Plaintiffs rely heavily on
the civil unions law, stating that none of the asserted
rationales explain why the title “marriage” alone has been denied
to same-sex couples. Pls.’ Opp’n 25. Plaintiffs assert that
denying the title marriage to same-sex couples does nothing to
encourage opposite-sex couples to marry, negating the
reasonableness of the asserted rationales. Id. at 28.
The Court will first discuss the overarching issues of
the proper framing of the question at issue and the effect of the
28/Plaintiffs and Defendant Abercrombie assert that Perry precludes the Court from crediting these rationales. As already discussed, Perry involved the unique circumstances of California in which Proposition 8 was passed after the state had already extended the right to marriage to same-sex couples, many same-sex couples had actually married, and the state had extended the incidents of marriage through the Domestic Partnership Act. Thus, Proposition 8’s only effect was to strip from same-sex couples solely the right to the designation of “marriage.” In analyzing similar rationales in Perry, the Ninth Circuit considered the rationales in light of the “taking away” effect of Proposition 8. See Perry, 671 F.3d at 1086-95. As explained supra, this is not a taking away case like Perry. Thus, HFF and Defendant Fuddy’s asserted rationales are not precluded by Perry.
87

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 91 of 120 PageID #: 2976
civil unions law on its forthcoming analysis of each rationale. HFF’s first and third rationales significantly overlaps with Defendant Fuddy’s two rationales, respectively, and thus the Court will discuss them together under the same two headings.
a. Plaintiffs’ and Defendant Abercrombie’s Overarching Arguments
Plaintiffs and Defendant Abercrombie make two overarching arguments - (1) that allowing same-sex couples to marry would not harm the interests identified by their opponents and (2) the civil unions law has rendered Hawaii’s marriage laws irrational.
i. The Relevant Question Plaintiffs and Defendant Abercrombie ask this Court to consider whether expanding the line drawn by the state, i.e., expanding the definition of marriage to include unions between same-sex couples, would harm the state’s interests. They argue that the state has failed to show that its interests are advanced by denying same-sex couples the ability to marry. See Pls.’ Reply to HFF 16-19; Abercrombie’s Mot. Mem. 51-56. Plaintiffs additionally assert that if the name “marriage” is strong enough to induce opposite-sex couples to marry, then the denial of the name is also strong enough to cause same-sex couples continuing harm for which there is no rational justification. See Pls.’ Reply to HFF 21. The Supreme Court, however, has held that a classification subject to rational basis review will be upheld when “the inclusion of one group promotes a legitimate
88

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 92 of 120 PageID #: 2977
governmental purpose, and the addition of other groups would
not.” Johnson v. Robison, 415 U.S. 361, 382-83 (1974).
Thus, the state is not required to show that denying
marriage to same-sex couples is necessary to promote the state’s
interest or that same-sex couples will suffer no harm by an
opposite-sex definition of marriage.29/ See Andersen, 138 P.3d at
29/The Supreme Court’s Cleburne analysis, in which the Supreme Court considered whether the group home would harm the municipalities’s legitimate interest, is not irreconcilable with Johnson. The ordinance at issue in Cleburne broadly allowed many structures, such as apartment houses, multiple dwellings, boarding and lodging houses, fraternity or sorority houses and dormitories, apartment hotels, etc. It then singled out the mentally retarded who were required to obtain a permit for a group home. See Cleburne, 473 U.S. at 437. In Johnson, the statute at issue singled out veterans who had served on “active duty” in Vietnam and conferred a benefit on them to the exclusion of all others. 415 U.S. at 363. A conscientious objector challenged the provision, seeking to be included in the statutory scheme. Id. at 362-63. In Johnson, the statute was upheld because, inter alia, the government interest of “enhancing and making more attractive service in the Armed Forces” was furthered by the class receiving the benefit but would not be furthered by conscientious objectors. Id. at 382-83. In Cleburne, the municipality did not assert that allowing the many persons able to occupy structures similar to group homes advanced an interest that would not be advanced by allowing the mentally retarded to occupy a group home. Instead, the municipality argued the requirement advanced certain interest such as, inter alia, protecting the residents from a nearby flood plain, reducing congestion in neighborhood streets, and avoiding fire hazards. Cleburne, 473 U.S. at 448-50. In other words, it argued that allowing the mentally retarded to occupy group homes would harm its interest. There was thus no reason to consider the rationales under a Johnson inclusion analysis.
Here, Hawaii’s marriage laws single out opposite-sex couples to the exclusion of all other potential relationship arrangements. One such potential arrangement, same-sex couples, seek to be included in those who may marry. HFF and Defendant Fuddy argue that the interests they assert support Hawaii’s marriage laws are furthered by allowing opposite-sex couples to marry but would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry. It is therefore
(continued...)
89

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 93 of 120 PageID #: 2978
985 (plurality) (explaining the relevant inquiry is whether granting opposite-sex couples the right to marry furthers the state’s interest, not whether such interests are furthered by denying same-sex couples the right to marry, and noting “the constitutional inquiry means little if the entire focus, and perhaps outcome, may be so easily altered by simply rewording the question”). Rather, the relevant question is whether an opposite-sex definition of marriage furthers legitimate interests that would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry. See Morrison v. Sadler, 821 N.E. 2d 15, 23 (Ind. App. 2005) (“The key question in our view is whether the recognition of same-sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation. If it would not, then limiting the institution of marriage to opposite-sex couples is rational and acceptable under . . . the Indiana Constitution.”); Standhardt v. Superior Court, 77 P.3d 451, 463 (Ariz. App. 2003).
ii. Effect of the Civil Unions Law Plaintiffs contend that because same-sex couples now have the right to the same benefits and burdens of marriage under the civil unions law, the heart of the asserted rationales has been taken away. Id. at 23-24. Citing Perry, In re Marriage
29/(...continued) appropriate to consider the rationales in light of the Johnson inclusion analysis.
90

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 94 of 120 PageID #: 2979
Cases, 183 P.3d 384 (Cal. 2008), and Kerrigan v. Commissioner,
957 A.2d 407 (Conn. 2008), Plaintiffs assert that every court
adjudicating a challenge to a marriage law in a jurisdiction
which has enacted a domestic partnership or civil unions law has
taken that law into account.30/ Pls.’ Reply to HFF 5. Plaintiffs
and Defendant Abercrombie also assert that the fact that
opposite-sex couples can also enter into a civil union
“undermines both the rationale and the premise that the
Legislature reserved the name, ‘marriage,’ to induce opposite sex
couples to marry.” Id. at 8; see Abercrombie’s Mot. Mem. 65;
Abercrombie’s Reply 33. Plaintiffs and Defendant Abercrombie do
not challenge the constitutionality of the civil unions law,
30/Among other reasons, because rational basis review applies in this case, Plaintiffs’ reliance on Kerrigan, and its decision holding a statute reserving marriage to opposite-sex couples but providing for civil unions violated the Connecticut Constitution, is unavailing. See Kerrigan, 957 A.2d at 411-12. In Kerrigan, the Connecticut Supreme Court explained that the state constitution provides greater protection than that provided by the federal constitution in some instances, and “[t]herefore, although we may follow the analytical approach taken by courts construing the federal constitution, our use of that approach for purposes of the state constitution will not necessarily lead to the same result as that arrived at under the federal constitution.” Id. at 420. The court then, in the absence of any binding precedent, determined that sexual orientation classifications are quasi-suspect under the Connecticut Constitution and thus subject to heightened scrutiny. Id. at 431-32. Likewise, in In re Marriage Cases, the California Supreme Court decided as a matter of first impression in California, that sexual orientation classifications are suspect for purposes of the California Constitution and applied strict scrutiny to California’s marriage laws. See In re Marriage Cases, 183 P.3d at 441-42. Here, however, the Court is bound by Ninth Circuit precedent that sexual orientation classifications are not suspect. As discussed supra, Perry is not controlling due to its narrow holding based on the unique facts in California.
91

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 95 of 120 PageID #: 2980
which was enacted after the marriage amendment was passed and § 572-1 was amended. Rather, they assert that in light of the later-enacted civil unions law, § 572-1 is unconstitutional.31/
First, no party, nor anything in the legislative history indicates, that the civil unions law is meant to be completely equal to marriage. See Abercrombie’s Mot. Mem. 62 (“The title ‘marriage’ carries with it significant psychological, sociological, and cultural meaning, and provides a statesanctioned ‘stamp of approval’ on opposite sex relationships.”). That is, the civil unions law confers all of the state benefits and burdens of marriage on couples in a civil union, but the title “marriage” has social benefits and cultural meaning. As HFF explains, despite that same-sex couples can get the legal benefits of marriage through civil unions, the state’s purposes of inducing opposite-sex couples to marry are accomplished by the prestige of the institution of marriage.
The fact that opposite-sex couples are not prohibited from entering into civil unions does not nullify the social significance or prestige of marriage such that there is no longer
31/Plaintiffs state they “do not concede that Section 572-1 was sound before the civil union bill, but neither do they contend that that is the relevant issue.” Pls.’ Reply to HFF 3. Plaintiffs’ arguments focus on the civil unions law and the fact that the legal benefits of marriage have been made available to same-sex couples while the legal title of marriage has not. The Court notes that at the hearing on HFF’s motion to intervene, Plaintiffs’ counsel explicitly stated that its case did not depend on the civil unions law, which it referred to as “an absurd theory” and “fallacious.” Fuddy’s Mot. Ex. 4.
92

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 96 of 120 PageID #: 2981
an inducement for opposite-sex couples to marry.32/ In any event, the legislature is not required to have a perfect fit between its means and ends. See Heller, 509 U.S. at 321. Under rational basis review, the Court must accept the legislature’s generalizations, even if the legislature could have drafted a law different to better fulfill its purposes. See id.
For example, in City of Dallas v. Stanglin, 490 U.S. 19 (1989), the Supreme Court held that a city ordinance restricting admission to certain dance halls to persons between the ages of 14 and 18 survived rational basis review despite the fact that similar restrictions were not imposed elsewhere, including at skating rinks. Id. at 27-28. The Court explained that arguments focused on this inconsistency “missapprehend[ed] the nature of rational-basis scrutiny.” Id. at 26. Specifically, the Supreme Court stated that differences between dance halls and skating rinks “may not be striking, but differentiation need not be striking in order to survive rational-basis scrutiny.” Id. at 28.
Second, there is a difference between the individual interests in marriage and the social or public interests in marriage. Although legal marriage also secures individual
32/HFF also argues that the legislature could conclude that the federal benefits available to married couples, but not partners in a civil union, provides an inducement for oppositesex couples to marry rather than enter a civil union. This argument is not persuasive because under DOMA, same-sex married couples cannot get federal benefits. The Court notes that, as discussed supra, the fate of DOMA is uncertain at this time.
93

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 97 of 120 PageID #: 2982
interest, it is a public institution enacted for the benefit of society. See Maynard, 125 U.S. 190. In Kerrigan, Justice Zarella, dissenting, determined that it was rational for the state to continue to promote the public’s interest by limiting marriage to opposite-sex couples “while enacting a civil union law in recognition of the legitimate interests of same-sex couples.” 957 A.2d at 530 (Zarella, J., dissenting). He explained: “[T]he state reasonably could believe that limiting marriage to a man and a woman accomplishes vital social goods, while the institution of civil union promotes the legitimate interests of those who enter into it. Recognition of the latter private interests does not necessarily entail abandonment of the former public interests.” Id.
The Court agrees. The legislature could rationally speculate that by reserving the name “marriage” to opposite-sex couples, Hawaii’s marriage laws provide special promotion and encouragement to enter into those relationships advancing societal interests while the civil unions laws protects the individual interests of same-sex couples. In the absence of a suspect or quasi-suspect classification or a restriction on a fundamental right, the Fourteenth Amendment does not require Hawaii to endorse all intimate relationships on identical terms. See Johnson, 415 U.S. 361; Vance, 440 U.S. at 94-95, 109 (rejecting a challenge to a statutory requirement for retirement at 60 of federal employees covered by the Foreign Service retirement and disability system but not those covered by the
94

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 98 of 120 PageID #: 2983
Civil Service retirement and disability system and explaining
that it was permissible under rational basis review for Congress
to “dr[a]w a line around those . . . it thought most generally
pertinent to its objective”). Thus, the civil unions law does
not render Hawaii’s marriage laws irrational. If the state has a
legitimate interest in defining marriage as between a man and
woman that is rationally related to Hawaii’s marriage laws, such
laws are not unconstitutional.
The Court also finds it illogical and unwise to
conclude that the passage of the civil unions law – advocated for
by the gay and lesbian community – renders Hawaii’s existing
marriage laws irrational and unconstitutional.33/ As Defendant
Fuddy noted, this result would be “profoundly prejudicial to
(ironically) same-sex couples on the one hand and core notions of
federalism on the other.”34/ Fuddy’s Mot. Mem. 10. To embrace
33/For example, inter alia, Honolulu Pride, Pride Alliance Hawaii, homosexuals, individuals in same-sex relationships, and parents of homosexuals submitted testimony to the Senate in favor of the civil unions law. See SB 232 Testimony 02-08-11, 02-08-11 LATE, 01-25-11, 02-08-11 LATE, available at http://www.capitol.hawaii.gov/Archives/measure_indiv_Archives.asp x?billtype=SB&billnumber=232&year=2011=232&year=2011 (last visited August 3, 2012).
34/This case does not involve a fundamental right or suspect classification, such as the race-based classification at issue in Brown v. Board of Education, 347 U.S. 483 (1954). Thus, the analogy to Brown set forth by Plaintiffs and Defendant Abercrombie is unpersuasive. See Abercrombie’s Mot. Mem. 62 (“This two-tiered system . . . is no better than the long discredited ‘separate but equal’ regime denounced in Brown v. Bd. of Educ.”). Moreover, unlike the Jim Crow laws and segregated school systems, the civil unions law was enacted not to perpetuate discrimination but to afford same-sex couples rights
(continued...) 95

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 99 of 120 PageID #: 2984
Plaintiffs’ argument that Hawaii’s marriage laws violate the Constitution based on a later enacted civil unions law would negate the ability of states to experiment with social change without fear of constitutionalizing this divisive social issue. Specifically, accepting Plaintiffs’ argument would provide a perverse incentive for states not to enact such civil union laws. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. . . . To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation.”). Moreover, it would punish those states that have extended rights to same-sex couples while retaining the traditional definition of marriage. Again, the circumstances in Hawaii are different than those in California, where Proposition 8 took away the title of marriage but left in place all of its incidents, because the marriage amendment was passed and § 572-1 was amended when there was no civil unions law.
Accepting the argument that the ability to enter into a civil union renders laws reserving marriage to opposite-sex couples unconstitutional would also force courts to act as policymakers. What about the states that confer only some of the
34/(...continued) they had not previously had.
96

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 100 of 120 PageID #: 2985
rights and benefits of marriage on partners in civil unions?35/ How many rights benefits would render a state’s marriage laws irrational? Courts would be required to usurp the typical legislative function of drawing lines. This is particularly troublesome because “[t]he problem of legislative classification is a perennial one, admitting of no doctrinaire definition.” Williamson v. Lee Optical of Okla., 348 U.S. 483, 489 (1955).
Plaintiffs state that they “categorically reject the . . . premise that States should be encouraged to experiment even where they do so on the basis of classificatory schemes that are
unlawful.” Pls.’ Reply to HFF 16. The gay and lesbian
community, however, advocated for the civil unions law, which resulted in the “classificatory scheme” at issue. It is unreasonable to conclude that Hawaii’s marriage laws are rendered unconstitutional by the state granting additional rights, without
taking away any rights, to same-sex couples. This is the type of
social and political decision within the province of the
legislature. Accordingly, a state’s marriage
laws do not rise or fall with a later-conferred ability of same-
35/As a recent article noted, “[w]hen civil union laws, designated beneficiary laws, reciprocal beneficiary laws, marriage laws limited to different-sex couples, and marriage laws that do not look to the sex of the parties are considered along with the various types of domestic partnership laws that exist, the results are quite chaotic.” See Edward Stein, The Topography of Legal Recognition of Same-Sex Relationships, 50 Fam. Ct. Rev. 181, 185 (2012). As just one example, Washington, Maine, and Nevada all have domestic partnerships that were created by legislation but differ dramatically in scope of the rights they confer. See id. at 184-85.
97

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 101 of 120 PageID #: 2986
sex couples to enter into civil unions (or equivalent relationships).
b. Encouraging the Stability of Relationships that Have the Ability to Procreate Naturally
HFF asserts that throughout different societies, an overriding purpose of marriage “is, and has always been, to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.” HFF’s Mot. Mem. 21. HFF contends that through the institution of marriage, societies seek to increase the likelihood that children will be born in stable and enduring family units by the mothers and fathers that conceived them. Id.
HFF states that because only sexual relationships between men and women can produce children, “such relationships have a potential to further – or harm – this interest in a way, and to an extent, that other types of relationships do not.” Id. at 25. It adds that Hawaii’s marriage laws, through providing special recognition to committed opposite-sex relationships, give “an incentive for individuals to channel potentially procreative conduct into relationships in which that conduct is likely to further, rather than harm, society’s interest in responsible procreation and childbearing.” Id. HFF asserts that same-sex couples do not pose the same risk of irresponsible procreation because although they can and do raise children, “they cannot create them in the way opposite-sex couples do – as the often unintended result of even casual sexual behavior.” Id. at 28.
98

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 102 of 120 PageID #: 2987
Defendant Fuddy asserts that Hawaii has a legitimate interest in encouraging the stability of naturally procreative relationships. Fuddy’s Mot. Mem. 29. Defendant Fuddy states that this “responsible procreation” interest rests on two factual premises. Id. at 30. First, “[i]t is an ‘inescapable fact that only two people, not three, only a man and a woman, can beget a child’ without the intervention and assistance of third parties and as an ordinary result of their sexual union.” Id. (quoting House Judiciary Committee, H.R. Rep. No. 104-664, at 13, reprinted in 1996 U.S.C.C.A.N. at 2917). Second, “[w]hen procreation and childrearing take place outside stable family units, children suffer.” Id. Defendant Fuddy states that in light of these two facts, “the state has an interest in encouraging opposite-sex couples to channel their sexual relations in a stable, long term relationship, an interest that does not apply as to same-sex couples.” Id. at 31.
Plaintiffs assert that the “responsible procreation” rationale is so attenuated as to be arbitrary and irrational. Pls.’ Mot. Mem. 20. Plaintiffs contend this argument has only been successful in jurisdictions in which both the status and legal incidents of marriage have been reserved to opposite-sex couples. Pls.’ Opp’n 26. Plaintiffs assert that because the legal incidents of marriage are available to same-sex couples who form civil unions, and opposite-sex couples can “opt out of marriage” and elect to form civil unions, it follows that “the name ‘marriage,’ in the State’s view, does nothing on its own to
99

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 103 of 120 PageID #: 2988
induce couples to marry and stay married.” Id. at 27. Plaintiffs assert that even if the word “marriage” would be a reason for maintaining it as the title for the opposite-sex union, it would not be a reason for denying that title to samesex couples unless doing so promoted “responsible procreation.” Id.
Defendant Abercrombie asserts that “banning same sex couples from getting married will have no impact upon whether heterosexual couples get married or not, procreate or not, and raise their children well or not.” Abercrombie’s Mot. Mem. 5152. He contends that reserving marriage to opposite-sex couples defeats the goal of responsible procreation by denying the children of same-sex couples the possibility of having legally married parents. Id. at 55. He states that although same-sex couples generally do not accidently procreate, “if the goal is to lessen the risk that children will be born out of wedlock, the ban is irrational.” Id.
Initially, as discussed supra, the fact that Hawaii has extended the legal rights of marriage (except for the title marriage) to same-sex couples via the civil unions law, does not negate the plausibility that the prestige and social significance of marriage might induce opposite-sex couples to marry. Defendant Fuddy and HFF have presented evidence that children fare better on many different levels when raised in a stable family unit by both of their parents. See HFF’s Mot. Ex. 22, Kristen Anderson Moore, et al., Marriage from a Child’s
100

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 104 of 120 PageID #: 2989
Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends Research Br. 6 (June 2002) (“Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabitating relationships face higher risks of poor outcomes than do children in intact families headed by two biological parents.”). They present evidence that when children are born out of wedlock, the question is often whether the child will be raised by the mother alone or both the mother and father. See HFF’s Ex. 29, William J. Doherty, et al., Responsible Fathering, 60 J. Marriage & Family 277, 280 (1998). HFF’s evidence further establishes that unwed mothers often suffer detrimental economic effects. See id. at 282 (“[F]or many policy specialists, the principal concern with fathering outside of marriage lies with the payment of child support.”); see also Christina Gallo, Marrying Poor: Women’s Citizenship, Race, and TANF Policies, 19 UCLA Women’s L.J. 61, 93 (2012) (“Single mothers are indeed more likely to be poor; 38.1% live below 125% of the poverty level, as opposed to 8.9% of married couples.”). Accordingly, it follows that encouraging procreation to take place within a marital relationship advances two legitimate goals identified by Defendant Fuddy: “1) to increase the percentage (not necessarily the total number) of ‘children raised in stable married families’ and 2) to decrease the number and percentage of children accidently conceived outside such relationships.” Fuddy’s Reply 15.
Same-sex couples cannot naturally procreate. Thus, the 101

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 105 of 120 PageID #: 2990
Court agrees with Defendant Fuddy’s explanation that “[w]hatever may be the case with the first reason (and the issue is certainly debatable), the undeniable facts of biology mean that encouraging opposite-sex couples to marry furthers the second reason; encouraging same-sex couples to marry does not.” Fuddy’s Reply 15. In other words, conferring the unique and socially significant legal status of marriage on same-sex couples would not further the interest in decreasing the number of children accidently conceived outside of a stable long-term relationship. See Bruning, 455 F.3d at 867 (concluding that the responsible procreation theory “justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot”); Standhardt, 77 P.3d at 463 (“Because samesex couples cannot by themselves procreate, the State could also reasonably decide that sanctioning same-sex marriages would do little to advance the State’s interest in ensuring responsible procreation within committed, long-term relationships.”).
One court explained the theory as follows: “[t]hose persons who have invested the significant time, effort, and expense associated with assisted reproduction or adoption may be seen as very likely to be able to provide [a stable] environment, with or without the ‘protections’ of marriage, because of the high level of financial and emotional commitment exerted in conceiving or adopting a child or children in the first place.” Morrison, 821 N.E.2d at 24. Natural reproduction, however, “may
102

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 106 of 120 PageID #: 2991
occur without any thought for the future.” Id. The court concluded that because the recognition of same-sex marriage would not further this interest in responsible procreation, “the legislative classification of extending marriage benefits to opposite-sex couples but not same-sex couples is reasonably related to a clearly identifiable, inherent characteristic that distinguishes the two classes: the ability or inability to procreate by ‘natural’ means.” Id. at 25.
The fact that not all opposite-sex couples have the ability or desire to procreate does not render this interest irrational. Plaintiffs and Defendant Abercrombie’s arguments to the contrary fail to appreciate the deference the Court must afford the state in rational basis review. “A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotations omitted). Instead, “courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Id.
For one, there would be pragmatic and constitutional problems with the state inquiring whether each couple that applies for a license has the ability or desire to have children. Inter alia, “it would implicate constitutionally-rooted privacy concerns” and “interfere with the fundamental right of oppositesex couples to marry.” In re Kandu, 315 B.R. at 147; see Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (“If the right
103

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 107 of 120 PageID #: 2992
of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child.”); Loving, 388 U.S. at
12. Moreover, “even where an opposite-sex couple enters into a
marriage with no intention of having children, ‘accidents’ do
happen, or persons often change their minds about wanting to have
children.” Morrison, 821 N.E.2d at 24-25. Thus, the institution
of marriage both “encourages opposite-sex couples to form a
relatively stable environment for the ‘natural’ procreation of
children . . . [and] encourages them to stay together to raise a
child or children together if there is a ‘change in plans.’”36/
Id. at 25.
The Supreme Court has held that “[u]nder rational-basis
review, where a group possesses distinguishing characteristics
relevant to interests the State has the authority to implement, a
36/Many courts have credited the responsible procreation theory and held that there is a rational link between the capability of naturally conceiving children - unique to two people of opposite genders – and limiting marriage to oppositesex couples. See Bruning, 455 F.3d at 867-68; Wilson, 354 F. Supp. 2d at 1308-09; In re Kandu, 315 B.R. at 145-47; Conaway, 932 A.2d at 630-31; Andersen, 138 P.3d at 982 (plurality) (“[N]o other relationship has the potential to create, without third party involvement, a child biologically related to both parents, and the legislature rationally could decide to limit legal rights and obligations of marriage to opposite-sex couples.”); In re Marriage of J.B. & H.B., 326 S.W.3d at 677 (“Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage.”); Morrison, 821 N.E.2d at 23-31; Standhardt, 77 P.3d at 461-64; but see Perry v. Schwarzenegger, 704 F. Supp. 2d at 999-1000; Goodridge, 798 N.E. 2d at 961-64.
104

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 108 of 120 PageID #: 2993
State’s decision to act on the basis of those differences does not give rise to a constitutional violation.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001) (internal quotations omitted). Here, opposite-sex couples, who can naturally procreate, advance the interest in encouraging natural procreation to take place in stable relationships and same-sex couples do not to the same extent. Thus, Hawaii’s marriage laws are reasonably related to this legitimate state interest. See id.; Johnson, 415 U.S. at 382-83. That is all that is required under this highly deferential review.
Plaintiffs and Defendant Abercrombie have failed to show that this rationale is not at least arguable. Thus, summary judgment in favor of Defendant Fuddy and HFF is appropriate. See Beach Commc’ns, 508 U.S. at 320 (“The assumptions underlying these rationales may be erroneous, but the very fact that they are ‘arguable’ is sufficient, on rational-basis review, to ‘immuniz[e]’ the congressional choice from constitutional challenge.”) (alteration in original); Lofton, 358 F.3d at 820 (“Unless appellants’ evidence, which we view on summary judgment review in the light most favorable to appellants, can negate every plausible rational connection between the statute and Florida’s interest in the welfare of its children, we are compelled to uphold the statute.”).
c. Promoting the Ideal, Where Possible, Children Are Raised by Their Mother and Father in a Stable Relationship
HFF asserts that it is rational for Hawaii to specially 105

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 109 of 120 PageID #: 2994
recognize opposite-sex relationships to promote the ideal that children be raised by both a mother and a father in a stable family unit. HFF’s Mot. Mem. 29. Plaintiffs contend that the legislature was clear that domestic partners be afforded equality of all the rights, benefits, protections, and responsibilities as those given to married spouses, “‘including any law relating to parent-child relationships.’” Pls.’ Opp’n at 30-31 (quoting H. Stand. Comm. Rep. No. 156, at *2 (Feb. 9, 2011)). Plaintiffs and Defendant Abercrombie contend that the legislature’s actions and statement cannot be harmonized with the “optimal child rearing” rationale. Id. at 31; Abercrombie’s Mot. Mem. 68-69. Plaintiffs further argue that “HFF has offered no rational relationship between the title, ‘marriage,’ and the goal of promoting the ‘optimal child rearing environment.’” Pls.’ Opp’n at 32. Defendant Abercrombie argues that there is no scientific evidence to support that opposite-sex couples are better parents than same-sex couples. Abercrombie’s Mot. Mem. 73.
Under rational basis scrutiny, however, empirical support is not necessary to sustain a classification. Beach Commc’ns, 508 U.S. at 315. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. In any event, both sides present evidence on this point. Defendant Abercrombie presents evidence that there is no support for the assertion that children fare better when raised by opposite-sex rather than same-sex couples. See Abercrombie’s Countermotion
106

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 110 of 120 PageID #: 2995
Ex. O, American Psychological Association, APA Policy Statement: Sexual Orientation, Parents, & Children (“[R]esults of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children”); Abercrombie’s Countermotion, Michael E. Lamb Declaration ¶ 29 (“The social science literature overwhelmingly rejects the notion that there is an optimal gender mix of parents or that children and adolescents with same-sex parents suffer any developmental disadvantages compared with those with two opposite-sex parents.”).
On the other hand, HFF presents evidence that children do best when raised by their two biological parents. See HFF’s Mot. Ex. 22, Moore, et al., supra, at 6 (“[R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage.”); HFF’s Mot. Ex. 31, Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Research 752 (2012) (finding that children raised by married biological parents fared better than children raised in same-sex households in a range of significant outcomes). HFF also presents evidence that children benefit from having a parent of each sex. See HFF’s Mot. Ex. 25, David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood and Marriage Are Indispensable for the Good of Children and Society, 146 (1996) (“The burden of social science
107

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 111 of 120 PageID #: 2996
evidence supports the idea that gender differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable.”); see also Lynn D. Wardle, Essay, “Multiply and Replenish”: Considering Same–Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol’y 771, 780 (2001) (“Heterosexual marriage reasonably may be assumed to provide the most advantageous environment in which children can be reared, providing profound benefits of dual gender parenting to model intergender relations and show children how to relate to persons of their own and the opposite gender.”).
Both sides point out flaws in their opponents’ evidence. See Abercrombie’s Mot. Mem. 71-79; Pls.’ Opp’n 29-31; Pls.’ Reply to HFF 18 (“[T]he Regnerus study is badly flawed because it compares apples to oranges. By Regnerus’ own admission, almost half of his sample of adult children from same sex households had once lived with biological parents.”); HFF’s Opp’n Ex. 32, Loren D. Marks, Same-Sex Parenting and Children’s Outcomes: A Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Research 735, 748 (2012) (explaining flaws in 59 studies conducted on same-sex parenting, including the involvement of small, non-random, convenience samples, and concluding that the generalized claim of “no difference” was “not empirically warranted”).
In applying rational basis review, if “the question is 108

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 112 of 120 PageID #: 2997
at least debatable,” the Court must uphold the classification. See Heller, 509 U.S. at 326 (internal quotations omitted). Accordingly, the rational basis standard only requires that the optimal parenting rationale be based on rational speculation that other things being equal, it is best for children to be raised by their married biological parents or with two parents of opposite genders. Here, the parties conflicting evidence establishes that the question “is at least debatable.” Therefore, Plaintiffs and Defendant Abercrombie have failed to show there is a genuine dispute of material fact as to whether the question is at least debatable, and summary judgment in favor of Defendant Fuddy and HFF is appropriate. See Vance, 440 U.S. at 112 (“[I]t is the very admission that the facts are arguable that immunizes from constitutional attack the congressional judgment represented by th[e] statute: It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety.”) (internal quotations omitted).
Other courts have likewise determined that this rationale is at least debatable. The Eleventh Circuit concluded that although the importance of heterosexual role models is a matter of ongoing debate, it “ultimately involve[s] empirical disputes not readily amenable to judicial resolution – as well as policy judgments best exercised in the legislative arena.” Lofton, 358 F.3d at 821-22. The Eleventh Circuit thus found that
109

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 113 of 120 PageID #: 2998
this consideration provided “a reasonably conceivable rationale for Florida to preclude all homosexuals, but not all heterosexual singles, from adopting.” Id. at 822.
The New York Supreme Court determined that it was rational for the legislature to conclude that other things being equal, it is better for children to grow up with both a mother and a father. Hernandez, 855 N.E.2d at 7. The court explained, “[i]ntuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.” Id. A Texas appellate court explained that “[t]he state also could have rationally concluded that children are benefited [sic] by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship.” In re Marriage of J.B. & H.B., 326 S.W.3d at 678.
Although Hawaii has given same-sex couples all rights given to married couples regarding raising children, this does not discredit the rationale. “That the State does not preclude different types of families from raising children does not mean that it must view them all as equally optimal and equally deserving of State endorsement and support.” Goodridge, 798 N.E.2d at 1000 (Cordy, J., dissenting). Thus, “[t]he Legislature may rationally permit adoption by same-sex couples yet harbor reservations as to whether parenthood by same-sex couples should be affirmatively encouraged to the same extent as parenthood by the heterosexual couple whose union produced the child.” Id. at
110

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 114 of 120 PageID #: 2999
1001. Accordingly, it is not irrational for the state to provide support for the parenthood of same-sex couples through the civil unions law, but not to the same extent or in the same manner it encourages parenthood by opposite-sex couples.
d. Cautiously Experimenting With Social Change HFF asserts that the legislature is entitled to experiment with its social policy to determine what is in the state’s best interests. HFF’s Opp’n 9-10. It argues that “[t]he state should not be constitutionally compelled to race down this path while so many questions about the impact of same-sex marriage remain unanswered.” HFF’s Mot. Mem. 35. Defendant Fuddy points out that the marriage amendment does not impose a fundamental barrier to the legislative process, but rather commits the matter to the legislature. Fuddy’s Mot. Mem. 39. She cites the legislature’s statement in the preface of the bill for the marriage amendment that the measure was designed “to ensure that the legislature will remain open to the petitions of those who seek a change in the marriage laws, and that such petitioners can be considered on an equal basis with those who oppose a change in our current marriage statutes.” Id. at 39-40 (citing H.R. 117, Haw. Session Laws 1246-47). Plaintiffs assert that the “proceeding with caution” rationale and deferring to the legislature cannot explain or justify why the title “marriage” alone has been denied to samesex couples. Pls.’ Mot. Mem. 32. Plaintiffs contend that “the State has already made a fundamental change to the traditional
111

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 115 of 120 PageID #: 3000
definition of marriage, and it did so in one blow by enacting the civil union law.” Id. at 33.
Throughout history and societies, marriage has been connected with procreation and childrearing. See, e.g., HFF’s Mot. Ex. 17, W. Bradford Wilcox, et al., eds., Why Marriage Matters 15 (2d ed. 2005) (“As a virtually universal human idea, marriage is about regulating the reproduction of children, families, and society.”). The legislature could rationally conclude that on a societal level, the institution of marriage acts to reinforce “the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other.” Goodridge, 798 N.E.2d at 995 (Cordy, J., dissenting).
It follows that it is not beyond rational speculation to conclude that fundamentally altering the definition of marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure. See HFF’s Mot. Ex. 33, Witherspoon Institute, Marriage and the Public Good: Ten Principles, 18-19 (2008) (concluding that changing the meaning of marriage “would further undercut the idea that procreation is intrinsically connected to marriage. It would further undermine the idea that children need both a mother and father, further weakening the societal norm that men should take responsibility for the children they beget.”); HFF’s Mot. Ex. 34, Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66
112

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 116 of 120 PageID #: 3001
Journal of Marriage & Family 848, 848-50 (November 2004)
(explaining that the movement to legalize same-sex marriage is
the most recent development in the deinstitutionalization of
marriage, i.e., the “weakening of the social norms that define
people’s behavior” in the social institution of marriage).
Under rational basis review, the state is not required to
show that allowing same-sex couples to marry will discourage,
through changing societal norms, opposite-sex couples from
marrying. Rather, the standard is whether the legislature could
rationally speculate that it might. It is at least debatable
that altering “that meaning would render a profound change in the
public consciousness of a social institution of ancient origin.”37/ See Lewis, 908 A.2d at 222. In any event, under
Johnson, HFF and Defendant Fuddy are not required to show that
changing the institution of marriage might harm the state’s
interest. See Johnson, 415 U.S. 361.
It is beyond dispute that allowing same-sex couples to
37/The Court notes that holding Hawaii’s marriage laws as lacking a rational basis might have unintended consequences. Once the link between marriage and procreation is taken away, and encouraging a socially desirable family structure is deemed irrational, there is no rational limiting principle for other types of relationships. See Israel v. Allen, 577 P.2d 762 (Colo. 1978) (holding a statute prohibiting marriage between adopted brothers and sisters unconstitutional and noting “[t]he physical detriment to the offspring of persons related by blood is totally absent”) (citation omitted); United States Survey on Domestic Partnerships, 22 J. Am. Acad. Matrim. Law. 125, 136 (2009) (“The state also, with consanguinity requirements, wants to ensure that those who decide to have children will not bear children with someone closely related to them, to guard against birth defects that could occur in the aggregate.”).
113

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 117 of 120 PageID #: 3002
marry would alter marriage as currently defined in Hawaii. Accordingly, the state may rationally decide to observe the effect of allowing same-sex marriage in other states before changing its definition of marriage. Moreover, Hawaii could rationally conclude that by enacting the reciprocal beneficiaries act, followed years later by the civil unions law, and retaining the definition of marriage as a union between a man and woman, it is addressing a highly-debated social issue cautiously. By doing so, it may observe the effect of the reciprocal beneficiaries and civil unions laws before deciding whether or not to extend the title marriage, along with the already conferred legal rights, to same-sex couples.
Although the legislature has flexibility to amend or repeal social experiments that prove unwise, courts have no such ability once they constitutionalize an issue. In discussing the institution of marriage, the Ninth Circuit has stated that “it is difficult to imagine an area more fraught with sensitive social policy considerations in which federal courts should not involve themselves if there is an alternative.” Smelt, 447 F.3d at 681. In discussing the need for judicial restraint in certain circumstances, the Hawaii Supreme Court has likewise acknowledged the need to “recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislative accordingly.” Bissen v. Fujii,
114

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 118 of 120 PageID #: 3003
466 P.2d 429, 431 (Haw. 1970). Hawaii’s history reveals that it has been open to
considering the rights of same-sex couples. In 1997, the legislature enacted the reciprocal beneficiaries statute. 1997 Haw. Sess. Laws 383 (H.B. 118). The legislature notes in the findings of the statute that two individuals of the same gender who were prohibited from marrying would have access to certain rights and benefits then only available to married couples. See H.R.S. § 572C-2. Subsequently, in 2011, the legislature passed a civil unions law, affording same-sex couples the right to enter civil unions and obtain all of the state legal rights of married couples (except the title marriage). The trajectory of Hawaii’s history has been moving towards providing more rights for samesex couples, but the legislature has not changed its definition of marriage.
In this situation, to suddenly constitutionalize the issue of same-sex marriage “would short-circuit” the legislative actions that have been taking place in Hawaii. See Osborne, 557 U.S. at 72-73 (concluding that to recognize a constitutional right to access state evidence for DNA testing at a time when forty-six states and the federal government had enacted laws regarding DNA testing “would short-circuit what looks to be a prompt and considered legislative response”). “Deliberate consideration of, and incremental responses to rapidly evolving scientific and social understanding is the norm of the political process — that it may seem painfully slow to those who are
115

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 119 of 120 PageID #: 3004
already persuaded by the arguments in favor of change is not a sufficient basis to conclude that the processes are constitutionally infirm.” Goodridge, 798 N.E.2d at 1004 (Cordy, J., dissenting).
The Court reiterates that rational basis review is the “paradigm of judicial restraint” and the Fourteenth Amendment “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Beach Commc’ns, 508 U.S. at 313-14. In conducting rational basis review, it is not the role of the courts to “sit as a superlegislature [and] judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” Heller, 509 U.S. at 319. Where, as here, “there are plausible reasons” for the state’s action, the Court’s “inquiry is at an end.” United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).
Accordingly, because Hawaii’s marriage laws are rationally related to legitimate government interests they do not violate the federal Constitution.
CONCLUSION For the foregoing reasons, the Court GRANTS HFF’s Motion for Summary Judgment; GRANTS Defendant Fuddy’s Motion for Summary Judgment; DENIES Plaintiffs’ Motion for Summary Judgment; DENIES HFF’s Motion to Dismiss Defendant Abercrombie; and DENIES AS MOOT Defendant Abercrombie’s Motion for Summary Judgment.
116

Case 1:11-cv-00734-ACK-KSC Document 117 Filed 08/08/12 Page 120 of 120 PageID #: 3005
IT IS SO ORDERED. DATED: Honolulu, Hawaii, August 8, 2012.
________________________________ Alan C. Kay Sr. United States District Judge
Natasha N. Jackson, et al. v. Neil S. Abercrombie, et al., Civ. No. 1100734 ACK-KSC; Order Granting HFF’s Motion for Summary Judgment and Defendant Fuddy’s Motion for Summary Judgment, Denying Plaintiffs’ Motion for Summary Judgment and HFF’s Motion to Dismiss Defendant Abercrombie, and Denying as Moot Defendant Abercrombie’s Motion for Summary Judgment.
117

 
 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.
-i-

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
-ii-

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
-iii-

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
-iv-

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
-v-

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.
-1-

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
-2-

“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.
-3-

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
-4-

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
-5-

(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
-6-

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
-7-

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”).
-8-

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-
-9-

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
-10-

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.
-11-

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
-12-

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
-13-

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
-14-

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
-15-

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.
-16-

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
-17-

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.
-18-

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.
-19-

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
-20-

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
-21-

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
-22-

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
-23-

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
-24-

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
-25-

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.
-26-

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
-27-

 
 Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-1, Page 1 of 4
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

OCT 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATASHA N. JACKSON; et al., Plaintiffs - Appellants,
v. NEIL S. ABERCROMBIE, Governor, State of Hawai’i,
Defendant, And LINDA ROSEN, Director, Department of Health, State of Hawai’i,
Defendant - Appellee, HAWAII FAMILY FORUM,
Intervenor-Defendant Appellee.

No. 12-16995 D.C. No. 1:11-cv-00734-ACKKSC
MEMORANDUM*

GARY BRADLEY; et al.,

No. 12-16998

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
1

Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-1, Page 2 of 4

Plaintiffs,
v.
NEIL S. ABERCROMBIE, Governor, State of Hawai’i,
Defendant - Appellant,
LINDA ROSEN, Director, Departent of Health, State of Hawai’i,
Defendant - Appellee,
HAWAII FAMILY FORUM,
Intervenor-Defendant Appellee.

D.C. No. 1:11-cv-00734-ACKKSC

Appeal from the United States District Court for the District of Hawaii
Alan C. Kay, Senior District Judge, Presiding
Argued and Submitted September 8, 2014 San Francisco, California
Before: REINHARDT, GOULD, and BERZON, Circuit Judges.
After the district court issued its decision in this case, and while these
appeals were pending, Hawaii enacted the Marriage Equality Act of 2013
(“MEA”), Act 1 (S.B. 1), Laws 2013, 2d Sp. Sess.; Haw. Rev. Stat. § 572-1 (2013),
allowing same-sex couples to get married in the state. Plaintiffs have subsequently

2

Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-1, Page 3 of 4
married their same-sex partners in Hawaii. Because MEA gave Plaintiffs “‘everything [they] hoped to achieve’ by [their] lawsuit,” this case is now moot. Log Cabin Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir. 2011) (per curiam) (quoting Chem. Prod. & Distribs. v. Helliker, 463 F.3d 871, 876 (9th Cir. 2006)). “[A] case is moot when the challenged statue is repealed, expires or is amended to remove the challenged language.” Id. “Where intervening legislation has settled a controversy involving only injunctive or declaratory relief, the controversy has become moot.” Helliker, 463 F.3d at 875 (quoting Bunker Ltd. P’ship. v. United States, 820 F.2d 308, 311 (9th Cir. 1987)) (internal quotation marks omitted). Contrary to Intervenor Hawaii Family Forum (“HFF”)’s claim, the mere fact that someone has challenged MEA in independent litigation does not defeat mootness. See Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1181 (10th Cir. 2000); Miller v. Benson, 68 F.3d 163, 164–65 (7th Cir. 1995) (per curiam).
When a case becomes moot on appeal, our general practice “is to reverse or vacate the decision below with a direction to dismiss.” NASD Dispute Resolution, Inc. v. Judicial Council of the State of Cal., 488 F.3d 1065, 1068 (9th Cir. 2007) (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997)). There are exceptions to this general rule, but none is applicable in this case. See, e.g.,
3

Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-1, Page 4 of 4
ACLU of Nev. v. Masto, 670 F.3d 1046, 1065 (9th Cir. 2012) (citing U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship., 513 U.S. 18, 24 (1994)) (vacatur not appropriate when the party seeking relief from the judgment below caused the mootness by voluntary action). Vacatur is particularly appropriate here in light of yesterday’s decision in Latta v. Otter, No. 14-35420 (9th Cir. Oct. 7, 2014).
Accordingly, we vacate the district court’s judgment and remand with instructions to dismiss the case as moot. In light of this disposition, HFF’s motion to dismiss Governor Abercrombie’s appeal for lack of appellate standing is denied as moot. VACATED and REMANDED with directions to DISMISS.
4

Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-2, Page 1 of 5

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. •
•

Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not
addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 08/2013

1

Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-2, Page 2 of 5
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 08/2013

2

Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-2, Page 3 of 5
• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-0526 (Attn: Jean Green, Senior Publications Coordinator); ► and electronically file a copy of the letter via the appellate ECF system by using "File Correspondence to Court," or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 08/2013

3

Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note:

If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

Reply Brief

$

$

$

$

Other**

$

$

$

$

TOTAL: $

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page.

Case: 12-16995, 10/10/2014, ID: 9272730, DktEntry: 178-2, Page 5 of 5 Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 1 of 17
U.S. District Court District of Hawaii (Hawaii) CIVIL DOCKET FOR CASE #: 1:11−cv−00734−ACK−KSC

CLOSED

Jackson et al v. Abercrombie et al Assigned to: JUDGE ALAN C KAY Referred to: JUDGE KEVIN S.C. CHANG Case in other court: 9CCA, CA 12−16995
9CCA, CA 12−16998 Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 12/07/2011 Date Terminated: 10/23/2014 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Natasha N. Jackson

represented by John J. D'Amato D'Amato &Maloney LLP 900 Fort Street Mall Ste 1680 Honolulu, HI 96813 546−5200 Fax: 546−5203 Email: jdamato@benefitslawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John T. Maloney , Jr D'Amato &Maloney LLP 900 Fort Street Mall Ste 1680 Honolulu, HI 96813 546−5200 Fax: 546−5203 Email: tmaloney@benefitslawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Lee D'Amato &Maloney LLP 900 Fort Street Mall Ste 1680 Honolulu, HI 96813 546−5200 Fax: 546−5203 Email: wlee@benefitslawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Janin Kleid

represented by John J. D'Amato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John T. Maloney , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gary Bradley

represented by

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 2 of 17
John J. D'Amato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Lee (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Neil S. Abercrombie Governor, State of Hawaii'i
Defendant Loretta J. Fuddy Director, Department of Health, State of Hawaii'i

represented by Girard D. Lau Office of the Attorney General−Hawaii 425 Queen St Honolulu, HI 96813 586−1500 Email: girard.d.lau@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harvey E. Henderson , Jr. Department of the Attorney General 425 Queen Street Honolulu, HI 96813 586−1219 Email: harvey.e.hendersonjr@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T. Nakatsuji Department of the Attorney General−State of Hawaii 425 Queen St Honolulu, HI 96813 (808) 536−1360 Fax: (808) 586−1237 Email: robert.t.nakatsuji@hawaii.gov ATTORNEY TO BE NOTICED
represented by Daniel A. Morris Office of the Attorney General−State of Hawaii Kekuanao'a Building 465 S King St Rm 300 Honolulu, HI 96813 587−2980 Email: Daniel.A.Morris@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Estrada Quinn Department of Commerce and Consumer Affairs 335 Merchant Street, Ste 205 Honolulu, HI 96813 586−2740 Email: Rebecca.E.Quinn@hawaii.gov TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 3 of 17
William J. Wynhoff Office of the Attorney General−State of Hawaii Kekuanao'a Building 465 S King St Rm 300 Honolulu, HI 96813 587−2985 Email: bill.j.wynhoff@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Hawaii Family Forum
Amicus Equality Hawai'i

represented by Dale Schowengerdt Alliance Defense Fund 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Email: dale@telladf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lloyd James Hochberg , Jr. Topa Financial Center 745 Fort St., Suite 1201 Honolulu, HI 96713 534−1514 Email: jim@JamesHochberglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W. Raum Alliance Defense Fund 15100 N 90th St Scottsdale, AZ 85260 (480) 444−0020 Fax: (480) 444−0028 Email: braum@telladf.org PRO HAC VICE ATTORNEY TO BE NOTICED
Holly L. Carmichael Alliance Defense Fund 15100 N 90th St Scottsdale, AZ 85260 (480) 444−0020 Fax: (480) 444−0028 Email: hcarmichael@telladf.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Clyde J. Wadsworth Alston Hunt Floyd &Ing 1001 Bishop St Ste 1800 Honolulu, HI 96813 (808) 524−1800 Email: cwadsworth@ahfi.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 4 of 17

Paul Alston Alston Hunt Floyd &Ing 1001 Bishop Street Suite 1800 Honolulu, HI 96813 524−1800 Email: palston@ahfi.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Hawai'i LGBT Legal Association

represented by Clyde J. Wadsworth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Alston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/07/2011 12/07/2011
12/07/2011 12/08/2011 12/08/2011 01/27/2012 02/15/2012
02/21/2012 02/21/2012 02/22/2012 03/01/2012
03/01/2012

# Docket Text
1 COMPLAINT, filed by Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Summons (issued), # 2 Civil Cover Sheet)(eps) (Entered: 12/07/2011)
2 Order Setting Rule 16 Scheduling Conference for 09:00AM on 3/12/2012 before JUDGE KEVIN S.C. CHANG.. by JUDGE SUSAN OKI MOLLWAY dated 12/7/11. (Attachments: # 1 Memo re: Corporate Disclosure Statements)(eps) (Entered: 12/07/2011)
3 Filing fee: $ 350.00,receipt number HI001985 re 1 (eps) (Entered: 12/07/2011)
4 SUMMONS Returned Executed by Natasha N. Jackson, Janin Kleid. Neil S. Abercrombie served through Kendall J Moser, Deputy Atty General on 12/7/2011. (eps) . (Entered: 12/08/2011)
5 SUMMONS Returned Executed by Natasha N. Jackson, Janin Kleid. Loretta J. Fuddy served through Kendall J Moser, Deputy Attorney General on 12/7/2011. (eps) . (Entered: 12/08/2011)
6 AMENDED COMPLAINT ; Certificate of Service against All Defendants, filed by Natasha N. Jackson, Janin Kleid, Gary Bradley.(Lee, William) (Entered: 01/27/2012)
7 EO: By agreement of counsel, Rule 16 Scheduling Conference set 3/12/12 shall be continued to 09:00AM on 4/17/2012 before JUDGE KEVIN S.C. CHANG. Harvey Henderson to notify all parties. (JUDGE KEVIN S.C. CHANG)(sna, )No COS issued for this docket entry (Entered: 02/15/2012)
9 ANSWER to 6 First Amended Complaint ; Certificate of Service by Neil S. Abercrombie.(eps) (Entered: 02/21/2012)
10 ANSWER to 6 First Amended Complaint ; Certificate of Service by Loretta J. Fuddy.(eps) (Entered: 02/21/2012)
11 Errata Sheet to ANSWER; Certificate of Service re 6 First Amended Complaint on behalf of Defendant Neil S. Abercrombie. (eps) (Entered: 02/22/2012)
12 APPLICATION TO APPEAR Pro Hac Vice − Lloyd James Hochberg, Jr (local counsel) and Brian W Raum (PHV) requesting to appear as to Intervenor Defendant Hawaii Family Forum (Attachments: # 1 Declaration of Counsel, # 2 Certificate of Service)(eps) (Entered: 03/01/2012)
13 APPLICATION TO APPEAR Pro Hac Vice :Lloyd James Hochberg, Jr (Local Counsel) and Holly L Carmichael (PHV) requesting to appear for Intervenor Defendant Hawaii Family Forum (Attachments: # 1 Declaration of Counsel, # 2

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 5 of 17

03/01/2012 03/01/2012 03/01/2012 03/02/2012
03/14/2012
03/14/2012
03/23/2012 03/29/2012
04/09/2012 04/09/2012 04/09/2012

Certificate of Service)(eps) (Entered: 03/01/2012)
14 Filing fee: $ 300.00,receipt number HI002911, $ 300.00 receipt number HI002912 re 12 BRIAN W RAUM Pro Hac Vice, 13 HOLLY L CARMICHAEL Pro Hac Vice (eps ) (Entered: 03/01/2012)
15 MOTION to Intervene − Lloyd James Hochberg, Jr appearing for Intervenor Defendant Hawaii Family Forum (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Corporate Disclosure Statement, # 5 Certificate of Service)(eps) (Entered: 03/01/2012)
16 PROPOSED ANSWER In Intervention of Hawaii Family Forum by Hawaii Family Forum.(eps) (Entered: 03/01/2012)
17 NOTICE of Hearing on Motion 15 Intervenor Defendant Hawaii Family Forum's MOTION to Intervene set for 4/30/2012 10:00 AM before JUDGE ALAN C KAY. (lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry. (Entered: 03/02/2012)
18 ORDER ADMITTING BRIAN W. RAUM PRO HAC VICE re 12 . Signed by JUDGE KEVIN S.C. CHANG on 03/14/2012. (eps)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 03/14/2012)
19 ORDER ADMITTING HOLLY L. CARMICHAEL PRO HAC VICE 13 . Signed by JUDGE KEVIN S.C. CHANG on 03/14/2012. (eps)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 03/14/2012)
20 REPORT of Planning Meeting ; Certificate of Service. (Lee, William) (Entered: 03/23/2012)
22 FIRST STIPULATION Regarding Deadline For Making Initial Disclosures AND ORDER. Signed by JUDGE KEVIN S.C. CHANG on 03/29/2012. (eps) −− the time for making initial disclosures shall be set for 30 days after the court files its written order granting or denying Hawaii Family Forum's motion to intervene
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be
served by first class mail on 03/30/2012 (Entered: 03/29/2012)
23 MEMORANDUM in Support re 15 MOTION to Intervene and certificate of service filed by Loretta J. Fuddy. (Wynhoff, William) (Entered: 04/09/2012)
24 MEMORANDUM in Opposition re 15 MOTION to Intervene filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Declaration Declaration of John J. D'Amato, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O)(D'Amato, John) (Entered: 04/09/2012)
25 Additional Exhibits to 24 Memorandum in Opposition to Motion, Certificate of Service filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Exhibit P, # 2 Exhibit Q (1 of 4), # 3 Exhibit Q (2 of 4), # 4 Exhibit Q (3 of 4), # 5 Exhibit Q (4 of 4), # 6 Exhibit R (1 of 2), # 7 Exhibit R (2 of 2), # 8 Exhibit S, # 9

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 6 of 17

04/09/2012 04/09/2012
04/10/2012 04/10/2012 04/10/2012 04/10/2012 04/11/2012 04/12/2012 04/16/2012 04/17/2012
04/17/2012
04/19/2012 04/19/2012 04/20/2012

Exhibit T, # 10 Exhibit U, # 11 Exhibit V, # 12 Exhibit W, # 13 Exhibit X, # 14 Exhibit Y)(D'Amato, John) (Entered: 04/09/2012)
26 REQUEST for Judicial Notice; Certificate of Service by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D'Amato, John) (Entered: 04/09/2012)
27 MEMORANDUM in Opposition To re 15 MOTION to Intervene of Hawaii Family Forum − filed by Neil S. Abercrombie. (Attachments: # 1 Table of Contents, # 2 Table of Authorities, # 3 Memorandum In Opposition, # 4 Declaration of Robert T Nakatsuji, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Certificate of Service)(eps ) (Entered: 04/09/2012)
28 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid re 24 Memorandum in Opposition to Motion, (Lee, William) (Entered: 04/10/2012)
29 Scheduling Conference Statement Certificate of Service. (D'Amato, John) (Entered: 04/10/2012)
30 Scheduling Conference Statement and certificate of service. (Wynhoff, William) (Entered: 04/10/2012)
31 Scheduling Conference Statement; Certificate of Service on behalf of Defendant Neil S Abercrombie. (eps ) (Entered: 04/10/2012)
32 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid re: Campaign Spending Comm'n (D'Amato, John) (Entered: 04/11/2012)
33 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Depo Campaign Spndng Comm'n (D'Amato, John) (Entered: 04/12/2012)
34 REPLY to Response to Motion re 15 MOTION to Intervene filed by Hawaii Family Forum. (Attachments: # 1 Declaration of James Hochberg, # 2 Exhibit A)(Raum, Brian) (Entered: 04/16/2012)
35 EP: Rule 16 Scheduling Conference held on 4/17/2012. Rule 16 Scheduling Conference Order to be issued. Court informed counsel for Defendant Fuddy that upon the filing of the Motion for Summary Judgment, Judge Kay will schedule the motion for 7/24/12. Bench Trial set for 4/23/2013 09:00 AM before JUDGE ALAN C KAY. Final Pretrial Conference set for 3/12/2013 09:00 AM before JUDGE KEVIN S.C. CHANG. Settlement Conference set for 1/15/2013 11:00 AM before JUDGE KEVIN S.C. CHANG. Motions due by 11/21/2012. Discovery due by 2/22/2013. ( C5 − no record, 9:05−9:10am.) (JUDGE KEVIN S.C. CHANG)(sna, )No COS issued for this docket entry (Entered: 04/17/2012)
36 Rule 16 SCHEDULING ORDER:. Signed by JUDGE KEVIN S.C. CHANG on 04/17/2012. (eps)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 04/17/2012)
37 EO: Status Conference Re: filing of cross motion for summary judgment set for 4/20/2012 11:15 AM before JUDGE KEVIN S.C. CHANG. John D'Amato has notified all parties. (JUDGE KEVIN S.C. CHANG)(sna, )No COS issued for this docket entry (Entered: 04/19/2012)
38 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Ps' 1st Req for Ans to Interrogs (D'Amato, John) (Entered: 04/19/2012)
39 EP: Status Conference Conference Re: filing of cross motion for summary judgment held on 4/20/2012. Discussion held. Counsel agree to the following deadlines: 6/15/12: deadline to file Motions for Summary Judgment which will be heard by Judge Kay on 7/24/12. 6/29/12: deadline to file opposition and/or counter motions, if any. 7/10/12: reply deadline. ( C5 − no record, 11:30−11:40am.) (JUDGE KEVIN S.C. CHANG)(sna, )No COS issued for this docket entry (Entered: 04/20/2012)

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 7 of 17

04/24/2012 04/25/2012 04/25/2012
04/25/2012 04/30/2012 05/02/2012

40 SUPPLEMENT re 15 MOTION to Intervene filed by Hawaii Family Forum by Hawaii Family Forum (pursuant to Local Rule 7.8). (Attachments: # 1 Order, # 2 Form 990, # 3 Certificate of Service)(Raum, Brian) (Entered: 04/24/2012)
CORRECTIVE ENTRY. The entry docket number 40 Supplement filed by Hawaii Family
Forum is filed incorrectly in this case. The Main Document is incorrectly formatted. The Main Document is submitted in Letter Form rather than Pleading Form. Please refer to LR10.2 (b) and
(c). The filing party shall re−submit a corrected filing. (eps) (Entered: 04/25/2012)
ADVISORY ENTRY. The entry docket number 40 Supplement filed by Hawaii Family Forum
pursuant to LR 7.8 is a Letter. The general practice is as follows: Letters to the Court are submitted via e−mail (refer to LR.100.9.3 for the hearing judge's e−mail) or by Fax (refer to USDC website, Judge's Contact List). Subsequently, at the Court's direction, the letter is entered on the docket by the Clerk's Office. The filing party is advised that no further follow−up action as to this entry is
necessary. (eps) (Entered: 04/25/2012)
41 SUPPLEMENT re 24 Memorandum in Opposition to Motion, filed by Janin Kleid, Gary Bradley, Natasha N. Jackson by Gary Bradley, Natasha N. Jackson, Janin Kleid ; Certificate of Service. (Attachments: # 1 Exhibit A)(D'Amato, John) (Entered: 04/25/2012)
42 EP: Motion Hearing held on 4/30/2012 re 15 MOTION to Intervene filed by Hawaii Family Forum−Oral Discussion Held. Motion is hereby Granted. Court to issue a written Order.(Court Reporter Gloria Bediamol.) (JUDGE ALAN C KAY)(lls, )No COS issued for this docket entry (Entered: 04/30/2012)
43 ORDER GRANTING HAWAII FAMILY FORUM'S MOTION TO INTERVENE re 42 , 15 . Signed by JUDGE ALAN C KAY on 05/02/2012. (eps)

05/09/2012 05/11/2012 05/11/2012 05/11/2012 05/11/2012 05/11/2012 05/18/2012 05/18/2012 05/21/2012 05/22/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 05/02/2012)
44 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Req for Ans to Written Interrogs HFF (D'Amato, John) (Entered: 05/09/2012)
45 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Depo. on Written Qs KITV (D'Amato, John) (Entered: 05/11/2012)
46 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Taking Depo. on Written Qs KGMB (D'Amato, John) (Entered: 05/11/2012)
47 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Taking Depo. on Written Qs KFVE (D'Amato, John) (Entered: 05/11/2012)
48 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Taking Depo. on Written Qs KHON (D'Amato, John) (Entered: 05/11/2012)
49 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Notice of Taking Depo. on Written Qs KHNL (D'Amato, John) (Entered: 05/11/2012)
50 MOTION for Pro Hac Vice of Dale Schowengerdt Brian W. Raum appearing for Intervenor Defendant Hawaii Family Forum (Raum, Brian) (Entered: 05/18/2012)
51 CERTIFICATE OF SERVICE by Loretta J. Fuddy for answers and objections to plaintiffs' interrogatories (Wynhoff, William) (Entered: 05/18/2012)
52 Filing fee: $ 300.00,receipt number HI003828 re 50 Pro Hac Vice of Dale Schowengerdt (eps) (Entered: 05/21/2012)
53 ORDER ADMITTING DALE SCHOWENGERDT PRO HAC VICE 50 . Signed by JUDGE KEVIN S.C. CHANG on 05/22/2012. (eps)

CERTIFICATE OF SERVICE

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 8 of 17

05/23/2012
05/30/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/12/2012 06/13/2012 06/14/2012

Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 05/22/2012)
54 TRANSCRIPT of Proceedings Intervenor Dft. HFF Mt. to Intervene held on 4−30−12, − before Judge Alan C. Kay. Court Reporter/Transcriber Gloria T. Bediamol, Telephone number (808) 541−2060. Transcript may be viewed at the court public terminal or ordered through the Court Reporter/Transcriber before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP 5.2(a),FRCrP 49.1(a) and FRBP 9037(a) Redaction Request due 6/11/2012. Redacted Transcript Deadline set for 6/20/2012. Release of Transcript Restriction set for 8/20/2012. pp. 47. (gb@hid.uscourts.gov) (Entered: 05/23/2012)
55 CERTIFICATE OF SERVICE by Gary Bradley, Natasha N. Jackson, Janin Kleid Plaintiffs' Initial Disclosures (D'Amato, John) (Entered: 05/30/2012)
56 NOTICE of Appearance by Dale Schowengerdt on behalf of Hawaii Family Forum on behalf of Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 06/01/2012)
57 CERTIFICATE OF SERVICE by Hawaii Family Forum for Rule 26(a) Initial Disclosures (Schowengerdt, Dale) (Entered: 06/01/2012)
58 INITIAL DISCLOSURES; Certificate of Service by Neil S. Abercrombie. (eps ) (Entered: 06/01/2012)
59 CERTIFICATE OF SERVICE by Loretta J. Fuddy for initial disclosures (Wynhoff, William) (Entered: 06/01/2012)
60 CERTIFICATE OF SERVICE by Hawaii Family Forum for Responses and Objections to Plaintiffs' First Set of Discovery Requests (Schowengerdt, Dale) (Entered: 06/12/2012)
61 MOTION for Leave to File Excess Pages Dale Schowengerdt appearing for Intervenor Defendant Hawaii Family Forum (Schowengerdt, Dale) (Entered: 06/13/2012)
62 ORDER GRANTING LEAVE TO EXCEED WORD LIMITATION 61 . Signed by JUDGE ALAN C KAY on 06/14/2012. (eps) −− Defendant−Intervenor Hawaii
Family Forum shall be permitted to file a memorandum of law in support of its motion for summary judgment of not more than 10,600 words.

06/15/2012 06/15/2012 06/15/2012 06/15/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 06/14/2012)
63 MOTION for Summary Judgment William J. Wynhoff appearing for Defendant Loretta J. Fuddy (Attachments: # 1 Memorandum in support of motion, # 2 certificate of compliance, # 3 certificate of service)(Wynhoff, William) (Entered: 06/15/2012)
64 CONCISE STATEMENT in Support re 63 MOTION for Summary Judgment filed by Loretta J. Fuddy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Declaration of Loretta J. Fuddy, # 5 Declaration of William J. Wynhoff, # 6 certificate of service)(Wynhoff, William) (Entered: 06/15/2012)
65 MOTION for Summary Judgment ;Certificate of Compliance; Certificate of Service John J. D'Amato appearing for Plaintiffs Gary Bradley, Natasha N. Jackson, Janin Kleid (Attachments: # 1 Memorandum In Support of Plaintiffs' Motion)(D'Amato, John) (Entered: 06/15/2012)
66 CONCISE STATEMENT in Support re 65 MOTION for Summary Judgment ;Certificate of Compliance; Certificate of Service Certificate of Service (CSF) filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Declaration Of John J. D'Amato, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(D'Amato, John) (Entered: 06/15/2012)

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 9 of 17

06/15/2012 06/15/2012
06/15/2012 06/15/2012 06/15/2012 06/15/2012

67 MOTION for Summary Judgment Dale Schowengerdt appearing for Intervenor Defendant Hawaii Family Forum (Attachments: # 1 Memorandum in Support)(Schowengerdt, Dale) (Entered: 06/15/2012)
68 CONCISE STATEMENT in Support re 67 MOTION for Summary Judgment filed by Hawaii Family Forum. (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20)(Schowengerdt, Dale) (Entered: 06/15/2012)
69 Additional Exhibits to 67 MOTION for Summary Judgment, 68 Concise Statement in Support of Motion,, filed by Hawaii Family Forum. (Attachments: # 1 Exhibit 21, # 2 Exhibit 22, # 3 Exhibit 23, # 4 Exhibit 24, # 5 Exhibit 25)(Schowengerdt, Dale) (Entered: 06/15/2012)
70 Additional Exhibits to 67 MOTION for Summary Judgment, 68 Concise Statement in Support of Motion,, filed by Hawaii Family Forum. (Attachments: # 1 Exhibit 26, # 2 Exhibit 27, # 3 Exhibit 28, # 4 Exhibit 29, # 5 Exhibit 30)(Schowengerdt, Dale) (Entered: 06/15/2012)
71 Additional Exhibits to 67 MOTION for Summary Judgment, 68 Concise Statement in Support of Motion,, filed by Hawaii Family Forum. (Attachments: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33, # 4 Exhibit 34)(Schowengerdt, Dale) (Entered: 06/15/2012)
72 NOTICE of Hearing on Motions 67 Intervenor Defendant Hawaii Family Forum's MOTION for Summary Judgment, 63 Defendant Loretta J. Fuddy's MOTION for Summary Judgment and 65 Plaintiffs Gary Bradley, Natasha N. Jackson and Janin Kleid's MOTION for Summary Judgment set for Court Hearings on 7/24/2012 at 10:00 AM before JUDGE ALAN C KAY. (lls, )

06/19/2012
06/20/2012 06/20/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry. (Entered: 06/15/2012)
73 TRANSCRIPT of Proceedings Intervenor Dft. Hawaii Family Forum's Mt. to Intervene held on April 30, 2012, − before Judge Alan C. Kay. Court Reporter/Transcriber Gloria T. Bediamol, Telephone number (808) 541−2060. Transcript may be viewed at the court public terminal or ordered through the Court Reporter/Transcriber before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP 5.2(a),FRCrP 49.1(a) and FRBP 9037(a) Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/17/2012. Release of Transcript Restriction set for 9/14/2012. pp. 47. (gb@hid.uscourts.gov) (Entered: 06/19/2012)
74 MOTION for Leave to File A Single Combined Memorandum of 25,000 Words, In Support Of His Countermotion And In Opposition Or Response To All Three Parties' Motions − Girard D. Lau, Robert T. Nakatsuji, Harvey E. Henderson, Jr appearing for Defendant Neil S. Abercrombie (Attachments: # 1 Declaration of Girard D Lau, # 2 Certificate of Service)(eps ) (Entered: 06/20/2012)
75 EO: The Court GRANTS Defendant Abercrombies request filed 6/20/2012 (Doc. No. 74), to file a single combined memorandum of 25,000 words in support of his countermotion and in opposition or response to all three motions for summary judgment. In granting this request, the Court notes that under Local Rule 7.9: A partys memorandum in support of the counter motion must be combined into one document with the partys memorandum in opposition to the original motion and may not exceed the page or word limit for an opposition absent leave of court. The opposition to the counter motion shall be served and filed together with any reply in support of the original motion in accordance with LR 7.4. A partys opposition to the counter motion must be combined into one document with that partys reply in support of the original motion and may not exceed the page limit for a reply absent leave of court. In other words, the other parties each will be limited under Local Rule 7.5 to a combined opposition and reply memorandum of not more than 4,500

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 10 of 17

06/25/2012 06/26/2012
06/29/2012 06/29/2012
06/29/2012 06/29/2012 06/29/2012 06/29/2012
06/29/2012 06/29/2012 06/29/2012

words unless otherwise authorized by the Court. (JUDGE ALAN C KAY)(lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 06/21/2012)
76 MOTION for Leave to File Excess Pages and Single Opposition to Motions for Summary Judgment of Defendant Director Fuddy and Defendant−Intervenor Hawaii Family Forum; Certificate of Service John J. D'Amato appearing for Plaintiffs Gary Bradley, Natasha N. Jackson, Janin Kleid (D'Amato, John) (Entered: 06/25/2012)
77 EO: The Court grants Plaintiffs unopposed motion to file a single opposition of 12,200 words in response to the motions for summary judgment of Defendant Director Fuddy and Defendant−Intervenor Hawaii Family Forum (Doc. No. 76). (JUDGE ALAN C KAY)(lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 06/26/2012)
78 MEMORANDUM in Opposition to Plaintiffs' Motion for Summary Judgment filed by Loretta J. Fuddy. (Attachments: # 1 Certificate of Service)(Quinn, Rebecca) (Entered: 06/29/2012)
79 RESPONSE to Plaintiffs' Concise Statement of Facts in support of Motion for Summary Judgment filed by Loretta J. Fuddy. (Attachments: # 1 Declaration of William J. Wynhoff, # 2 : RESTRICTED FROM PUBLIC VIEW Exhibit 4, # 3 Certificate of Compliance, # 4 Certificate of Service)(Quinn, Rebecca) Modified on 7/2/2012 : restricting Exhibit 4 because it is a transcript that has not been released for public viewing 54 (eps ). (Entered: 06/29/2012)
80 STATEMENT of No Opposition to Defendant−Intervenor Hawaii Family Forum's Motion for Summary Judgment filed by Loretta J. Fuddy. (Attachments: # 1 Certificate of Service)(Quinn, Rebecca) (Entered: 06/29/2012)
81 NOTICE of Appearance by Clyde J. Wadsworth on behalf of Equality Hawai`i, Hawai`i LGBT Legal Association on behalf of Equality Hawai`i, Hawai`i LGBT Legal Association. (Wadsworth, Clyde) (Entered: 06/29/2012)
82 MEMORANDUM in Opposition re 65 MOTION for Summary Judgment ;Certificate of Compliance; Certificate of Service filed by Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 06/29/2012)
83 MOTION LEAVE TO FILE BRIEF OF AMICI CURIAE EQUALITY HAWAI`I AND HAWAI`I LGBT LEGAL ASSOCIATION IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT LORETTA J. FUDDY AND DEFENDANT−INTERVENOR HAWAII FAMILY FORUM'S MOTIONS FOR SUMMARY JUDGMENT re 67 MOTION for Summary Judgment, 65 MOTION for Summary Judgment ;Certificate of Compliance; Certificate of Service, 63 MOTION for Summary Judgment Clyde J. Wadsworth appearing for Defendant Equality Hawai`i, Amicus Hawai`i LGBT Legal Association (Attachments: # 1 Brief of Amici Curiae Equality Hawai`i and Hawai`i LGBT Legal Association in Support of Plaintiffs' Opposition to Defendants Loretta J. Fuddy and Hawaii Family Forum's Motions for Summary Judgment, # 2 Certificate of Service)(Wadsworth, Clyde) (Entered: 06/29/2012)
84 Concise Statement in Opposition re 66 Concise Statement in Support of Motion, filed by Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 06/29/2012)
85 STATEMENT of No Opposition re 63 MOTION for Summary Judgment filed by Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 06/29/2012)
86 MEMORANDUM in Opposition re 67 MOTION for Summary Judgment, 63 MOTION for Summary Judgment ; Certificate of Service filed by Gary Bradley,

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 11 of 17

06/29/2012 06/29/2012 06/29/2012 06/29/2012
06/29/2012
07/02/2012 07/02/2012 07/02/2012
07/03/2012

Natasha N. Jackson, Janin Kleid. (D'Amato, John) (Entered: 06/29/2012)
89 CONCISE STATEMENT OF Facts in Opposition To Defendant Loretta J Fuddy's 63 MOTION for Summary Judgment ; Certificate of Service − filed by Neil S. Abercrombie. (eps) (Entered: 07/02/2012)
90 CONCISE STATEMENT Of Facts in Opposition To Defendant−Intervenor Hawaii Family Forum's 67 MOTION for Summary Judgment ; Certificate of Service − filed by Neil S. Abercrombie. (eps) (Entered: 07/02/2012)
91 CONCISE STATEMENT of Facts In Response To Plaintiffs' 65 MOTION for Summary Judgment Re: Count Two: Violation Of Plaintiffs' Right To Equal Protection; Certificate of Service − filed by Neil S. Abercrombie. (eps) (Entered: 07/02/2012)
92 COUNTERMOTION for Partial Summary Judgment − Girard D. Lau, Robert T. Nakatsuji, Harvey E. Henderson, Jr appearing for Defendant Neil S. Abercrombie (Attachments: # 1 Memorandum In Support of Defendant Governor Neil S Abercrombie's CounterMotion For Partial Summary Judgmeint, In Response To Plaintiffs' Motion For Summary Judgment Re Count Two, And In Opposition To Defendant Loretta J Fuddy's And Defendant−Intervenor Hawaii Family Forum's Motions For Summary Judgment, # 2 Certificate of Compliance, # 3 Certificate of Service)(eps) (Entered: 07/02/2012)
93 CONCISE STATEMENT Of Facts in Support Of Defendant Governor Neil S Abercrombie's 92 COUNTER−MOTION for Partial Summary Judgment filed by Neil S. Abercrombie. (Attachments: # 1 Declaration of Girard D Lau, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Declaration Of Gregory M Herek, Ph.D, # 18 Exhibit A, # 19 Exhibit B, # 20 Declaration of George Chauncey, Ph.D, # 21 Chauncey Bibliography, # 22 Exhibit A, # 23 Declaration of Michael E Lamb, Ph.D, # 24 Lamb Bibliography, # 25 Exhibit A, # 26 Exhibit B, # 27 Declaration of Gary M Segura, Ph.D, # 28 Exhibit A, # 29 Exhibit B, # 30 Certificate of Service)(eps) (Entered: 07/02/2012)
87 CONCISE STATEMENT in Opposition re 67 MOTION for Summary Judgment, 63 MOTION for Summary Judgment Response to Concise Statement of Facts of Defendant Fuddy and Defendant−Intervenor Hawaii Family Forum; Certificate of Service; filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D'Amato, John) (Entered: 07/02/2012)
88 Errata re 83 MOTION LEAVE TO FILE BRIEF OF AMICI CURIAE EQUALITY HAWAI`I AND HAWAI`I LGBT LEGAL ASSOCIATION IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT LORETTA J. FUDDY AND DEFENDANT−INTERVENOR HAWAII FAMILY FORUM'S MOTIONS FOR SUMMARY JU. (Attachments: # 1 [CORRECTED] Pages 8 and 9 of BRIEF of Amici Curiae, # 2 Certificate of Service)(Wadsworth, Clyde) (Entered: 07/02/2012)
94 EO: The Court GRANTS Equality Hawaii and Hawaii LGBT Legal Association's motion for leave to file brief of amici curiae (Doc. No. 83).(JUDGE ALAN C KAY)(lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 07/03/2012)
95 NOTICE of Hearing on Motion 92 Defendant Neil S. Abercrombie's COUNTER−MOTION for Partial Summary Judgment set for Court Hearing on 7/24/2012 at 10:00 AM before JUDGE ALAN C KAY. (lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 12 of 17

07/03/2012
07/09/2012 07/09/2012

served by first class mail on the date of this docket entry. (Entered: 07/03/2012)
96 MEMORANDUM re 86 Memorandum in Opposition to Motion [BRIEF OF AMICI CURIAE EQUALITY HAWAI`I AND HAWAI`I LGBT LEGAL ASSOCIATION IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANTS LORETTA J. FUDDY AND HAWAII FAMILY FORUM'S MOTIONS FOR SUMMARY JUDGMENT] filed by Equality Hawai'i, Hawai'i LGBT Legal Association. (Wadsworth, Clyde) (Entered: 07/03/2012)
97 MOTION for Leave to File Excess Pages Dale Schowengerdt appearing for Intervenor Defendant Hawaii Family Forum (Schowengerdt, Dale) (Entered: 07/09/2012)
98 EO: The Court grants 97 Hawaii Family Forum's unopposed motion to file a combined opposition to Defendant Abercrombie's motion for summary judgment, reply to Plaintiffs' opposition, and response to the brief of Amici Equality Hawaii, not to exceed 12,000 words. (JUDGE ALAN C KAY)(lls, )

07/10/2012 07/10/2012
07/10/2012 07/10/2012 07/10/2012 07/10/2012 07/10/2012 07/11/2012 07/12/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 07/09/2012)
99 RESPONSE re 93 Concise Statement in Support of Motion,,, Response to Defendant Governor Neil S. Abercrombie's Concise Statement of Facts (ECF 93) filed by Loretta J. Fuddy. (Attachments: # 1 Declaration of William J. Wynhoff, # 2 Exhibit 5, # 3 Certificate of Service)(Quinn, Rebecca) (Entered: 07/10/2012)
100 MEMORANDUM re 96 Memorandum, 86 Memorandum in Opposition to Motion, 92 COUNTER−MOTION for Partial Summary Judgment Consolidated Memorandum in Opposition and Reply to 1) Defendant Governor Neil S. Abercrombie's Countermotion for Partial Summary Judgment (ECF 92); 2) Plaintiffs' Memorandum in Opposition (ECF 86); and Brief of Amici Curiae (ECF 96) filed by Loretta J. Fuddy. (Attachments: # 1 Certificate of Compliance, # 2 Declaration of William J. Wynhoff Re FRCP 56(d), # 3 Certificate of Service)(Quinn, Rebecca) (Entered: 07/10/2012)
101 REPLY re 67 MOTION for Summary Judgment, 92 COUNTER−MOTION for Partial Summary Judgment filed by Hawaii Family Forum. (Schowengerdt, Dale) (Entered: 07/10/2012)
102 Concise Statement in Opposition re 93 Concise Statement in Support of Motion,,, filed by Hawaii Family Forum. (Attachments: # 1 Declaration, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, # 7 Exhibit 40)(Schowengerdt, Dale) (Entered: 07/10/2012)
103 REPLY re 82 Memorandum in Opposition to Motion ; Certificate of Compliance; Certificate of Service; filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Exhibit A, # 2 Declaration John D'Amato)(D'Amato, John) (Entered: 07/10/2012)
104 REPLY re 78 Memorandum in Opposition to Motion ; Certificate of Compliance; Certificate of Service; filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (Attachments: # 1 Declaration John D'Amato)(D'Amato, John) (Entered: 07/10/2012)
105 STATEMENT of No Opposition re 92 COUNTER−MOTION for Partial Summary Judgment ; Certificate of Service; filed by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D'Amato, John) (Entered: 07/10/2012)
106 MOTION for Leave to File A Reply Memorandum Of 10,000 Words, In Support Of His Countermotion − Girard D. Lau, Robert T. Nakatsuji, Harvey E. Henderson, Jr appearing for Defendant Neil S. Abercrombie (Attachments: # 1 Declaration of Girard D Lau, # 2 Certificate of Service)(eps) (Entered: 07/11/2012)
107 EO:The Court grants Defendant Abercrombie's unopposed motion for leave to file a single reply memorandum of 10,000 words in support of his countermotion (Doc.

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 13 of 17

07/17/2012 07/18/2012
07/20/2012 07/20/2012 07/24/2012

No. 106). (JUDGE ALAN C KAY)(lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 07/12/2012)
108 REPLY MEMORANDUM in Support Defendant Governor Neil S Abercrombie's 92 MOTION for Partial Summary Judgment filed by Neil S. Abercrombie. (Attachments: # 1 Certificate of Compliance With Word Count Limitation, # 2 Declaration of Girard D Lau, # 3 Exhibit P, # 4 Exhibit Q, # 5 Exhibit R, # 6 Certificate of Service)(eps ) (Entered: 07/17/2012)
109 EO: The Court concludes that it will be helpful to set forth the order of and time allotment for presentations at the hearing on the parties three motions and one countermotion for summary judgment set for Tuesday, 7/24/2012. The Court will initially hear arguments on Hawaii Family Forums (HFF) Motion to Dismiss Defendant Abercrombie. As it is HFFs motion, they may present their argument first, followed by Defendant Abercrombie and any other party that wishes to present argument on this issue. The Court will allow each party five minutes to present argument on this motion. HFF will have an additional three minutes for rebuttal. With respect to the summary judgment motions and countermotion, the Court will allow each party to have thirty minutes total. This allowance includes initial presentation and rebuttal arguments. The order of arguments, based on the order in which the motions were filed, will be as follows: (1) Defendant Fuddy, (2) Plaintiffs, (3) HFF, and (4) Defendant Abercrombie. After the initial arguments, the Court will allow amici curiae, Equality Hawaii and Hawaii LGBT Legal Association, to present ten minutes total of argument in support of their amicus brief if they wish to do so. The parties will then be allowed to present rebuttal arguments. The order of rebuttal arguments will be slightly modified as follows: (1) HFF, (2) Defendant Abercrombie, (3) Plaintiffs, and (4) Defendant Fuddy. Accordingly, if each party uses all of the time allowed, the hearing will last over two hours. (JUDGE ALAN C KAY)(lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 07/18/2012)
110 Errata re 103 Reply, Corrected Page 10 to Reply to Hawaii Family Forum; Certificate of Service;. (D'Amato, John) (Entered: 07/20/2012)
111 EO: Motions for Summary Judgment are set for Court Hearing on Tuesday, 7/24/2012 at 10:00 a.m. before the Honorable Alan C. Kay. The following listed Attorneys are authorized to bring into the courthouse their laptops for the purpose of use at the Court Hearing. This Court Hearing will take place in Courtroom Aha Kaulike on the 4th Floor of the PJKK U.S. Courthouse Building. List of Attorneys:John J. DAmato, Dale Schowengerdt, Clyde J. Wadsworth and William J. Wynhoff (JUDGE ALAN C KAY)(lls, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 07/20/2012)
112 EP: Evidentiary Hearing/Dispositive Motions Hearing held on 7/24/2012− Oral Discussion Held. Intervenor Defendant Hawaii Family Forums Motion to Dismiss (Doc. 67), Defendant Loretta J. Fuddys Motion for Summary Judgment (Doc. 63),Plaintiffs Motion for Summary Judgment (Doc. 65), Intervenor Defendant Hawaii Family Forums Motion for Summary Judgment (Doc. 67) and Defendant Neil S. Abercrombies CounterMotion for Partial Summary Judgment (Doc.92) All Motions' are hereby taken under advisement. (Court Reporter Debra Chun.) (JUDGE ALAN C KAY)(lls, )No COS issued for this docket entry (Entered: 07/24/2012)

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 14 of 17

07/30/2012 07/31/2012

113 MOTION for Leave to File 1 1/2 Page Supplemental Memorandum To Fully Respond To Court's Question − Girard D. Lau appearing for Defendant Neil S. Abercrombie (Attachments: # 1 Exhibit 1, # 2 Certificate of Service)(eps) (Entered: 07/30/2012)
114 EO: The Court grants Defendant Abercrombies motion for leave to file a supplemental memorandum to respond to one of the Courts questions (Doc. No. 113). The Court has considered the matter and directs the parties not to file any further memorandums. (JUDGE ALAN C KAY)(lls, )

07/31/2012 08/06/2012 08/08/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 07/31/2012)
115 SUPPLEMENTAL MEMORANDUM filed by Neil S. Abercrombie. (eps ) (Entered: 07/31/2012)
116 NOTICE by Loretta J. Fuddy of Withdrawal of Rebecca E. Quinn as Counsel to Defendant Loretta J. Fuddy. (Quinn, Rebecca) (Entered: 08/06/2012)
117 ORDER GRANTING HFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT FUDDY'S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND HFF'S MOTION TO DISMISS DEFENDANT ABERCROMBIE, AND DENYING AS MOOT DEFENDANT ABERCROMBIE'S MOTION FOR SUMMARY JUDGMENT re 63 , 65 , 67 , 92 . Signed by JUDGE ALAN C KAY on 08/08/2012. (eps)

08/08/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 08/08/2012)
118 CLERK'S JUDGMENT : entered in favor of Defendants pursuant to the "Order Granting HFF'S Motion for Summary Judgment and Defendant Fuddy's Motion for Summary Judgment, Denying Plaintiffs' Motion For Summary Judgment and HFF'S Motion to Dismiss Defendant Abercrombie, and Denying as Moot Defendant Abercrombie's Motion For Summary Judgment" filed August 8, 2012.. (eps)

08/20/2012 08/20/2012 08/22/2012
09/07/2012
09/07/2012

CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 08/08/2012)
119 NOTICE of Appearance by Daniel A. Morris on behalf of Neil S. Abercrombie, Loretta J. Fuddy on behalf of Neil S. Abercrombie, Loretta J. Fuddy. (Morris, Daniel) (Entered: 08/20/2012)
120 NOTICE by Loretta J. Fuddy Errata to Notice of Appearance of Counsel Loretta J. Fuddy. (Morris, Daniel) (Entered: 08/20/2012)
ADVISORY ENTRY. The entry docket number 119 Notice of Appearance filed by Daniel A Morris for Neil S. Abercrombie was filed in error and the counsel association will be removed from the docket. The 120 Errata filed by counsel Daniel A Morris as to Loretta J. Fuddy serves as the formal appearance of counsel. (eps) (Entered: 08/22/2012)
121 NOTICE OF APPEAL as to 117 Order on Motion for Summary Judgment,,, Order on Motion for Partial Summary Judgment,,,,,,,, 118 Clerk's Judgment,,, by Gary Bradley, Natasha N. Jackson, Janin Kleid. (D'Amato, John) −− CA 12−16995 Modified on 9/10/2012 −− adding court of appeals case number (eps). (Entered: 09/07/2012)
123 NOTICE OF APPEAL as to 117 , 118 by Neil S. Abercrombie. Filing fee $ 455. (Attachments: # 1 Representation Statement, # 2 Certificate of Service)(eps) −−

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 15 of 17

09/07/2012 09/07/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012
09/12/2012

CA 12−16998
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry Modified on 9/10/2012 : adding court of appeals case number (eps ). (Entered: 09/07/2012)
122 USCA Appeal Fees received $ 455 receipt number HI005107 re 121 Notice of Appeal filed by Plaintiffs Janin Kleid, Gary Bradley, Natasha N. Jackson (eps)No COS issued for this docket entry (Entered: 09/07/2012)
124 USCA Appeal Fees # 1 received $ 455 receipt number HI005106 re 123 Notice of Appeal, filed by Neil S. Abercrombie (eps). Modified on 9/10/2012 : applicable receipt, PDF attached (eps). (Entered: 09/07/2012)
125 USCA Case Number CA 12−16995 for 121 Notice of Appeal filed by Janin Kleid, Gary Bradley, Natasha N. Jackson. (eps)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 09/10/2012)
126 USCA Time Schedule Order CA 12−16995 as to 121 Notice of Appeal filed by Janin Kleid, Gary Bradley, Natasha N. Jackson. (eps)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 09/10/2012)
127 USCA Case Number CA 12−16998 for 123 Notice of Appeal, filed by Neil S. Abercrombie. (eps )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 09/10/2012)
128 USCA Time Schedule Order as to CA 12−16998 re 123 Notice of Appeal, filed by Neil S. Abercrombie. (eps)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 09/10/2012)
129 Attorney Appeal Packet re 121 Notice of Appeal CA 12−16995, 123 Notice of Appeal CA 12−16998, (Attachments: # 1 Instructions Civil Appeal, # 2 Instructions Transcript Designation, # 3 Additional Instructions TDOF, # 4 Transcript Designation &Ordering Form, # 5 APPEAL CA 12−16995, # 6 APPEAL CA 12−16998, # 7 District Court Docket Sheet)(eps)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 09/10/2012)
130 TRANSCRIPT of Proceedings Various Motions held on 7/24/12 before Judge Alan C. Kay. Court Reporter Debra Chun, Telephone number 808 541−2061. Transcript may be viewed at the court public terminal or ordered through the Court Reporter before the deadline for Release of Transcript. Remote availability of electronic transcripts is regulated by FRCP 5.2(a), FRCrP 49.1(a), and FRBP 9037(a). Redaction Request due 10/1/2012. Redacted Transcript Deadline set for

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 16 of 17

10/05/2012 10/05/2012 10/09/2012 10/09/2012 10/09/2012 10/09/2012 10/18/2012
12/31/2012 03/19/2014 05/12/2014 10/10/2014
10/23/2014

10/10/2012. Release of Transcript Restriction set for 12/10/2012. (dc@hid.uscourts.gov) pp. 96. (Entered: 09/12/2012)
131 TRANSCRIPT Designation and Ordering Form by Neil S. Abercrombie for proceedings held on 04/30/2012 (Gloria Bediamol) before Judge ALAN C KAY: CA 16009 and CA 12−16995 (eps )No COS issued for this docket entry (Entered: 10/05/2012)
132 TRANSCRIPT Designation and Ordering Form by Neil S. Abercrombie for proceedings held on 07/24/2012 (Debra Chun) before Judge ALAN C KAY: CA 12−16998 and CA 12−16995 (eps)No COS issued for this docket entry (Entered: 10/05/2012)
133 TRANSCRIPT REQUEST and Certificate of Service by Gary Bradley, Natasha N. Jackson, Janin Kleid for proceedings held on 7/24/2012 (Motions for Summary Judgment, Debra Chun, reporter) before Judge Alan C. Kay.. (D'Amato, John) Modified on 10/10/2012 : Refer to docket entry 135 (eps). (Entered: 10/09/2012)
134 TRANSCRIPT REQUEST and Certificate of Service by Gary Bradley, Natasha N. Jackson, Janin Kleid for proceedings held on 4/30/2012 (Hearing on Motion to Intervene, Gloria T. Bediamol, reporter) before Judge Alan C. Kay.. (D'Amato, John) Modified on 10/10/2012 : Refer to docket entry 136 (eps ). (Entered: 10/09/2012)
135 TRANSCRIPT Designation and Ordering Form by Natasha N. Jackson, Janin Kleid for proceedings held on 07/24/2012 (Debra Chun) before Judge ALAN C KAY, (eps) −− RE−ENTERED by the Clerk's Office (incorrect event selected by the filing party formerly entry 133 No COS issued for this docket entry (Entered: 10/10/2012)
136 TRANSCRIPT Designation and Ordering Form by Natasha N. Jackson, Janin Kleid for proceedings held on 04/30/2012 (Gloria T Bediamol) before Judge ALAN C KAY, (eps) −− RE−ENTERED by the Clerk's Office (incorrect event selected by the filing party formerly entry 134 No COS issued for this docket entry (Entered: 10/10/2012)
137 Certificate of Record re 121 Notice of Appeal, 123 Notice of Appeal,, USCA Number: 12−16995 (lmg, )
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 10/18/2012)
138 ORDER of USCA as to 121 Notice of Appeal, filed by Janin Kleid, Gary Bradley, Natasha N. Jackson, 123 Notice of Appeal,, filed by Neil S. Abercrombie (eps) (Entered: 12/31/2012)
139 USCA Briefing Schedule − Order (CA 12−16995, 12−16998) as to 121 Notice of Appeal, filed by Janin Kleid, Gary Bradley, Natasha N. Jackson, 123 Notice of Appeal,, filed by Neil S. Abercrombie. (gab, )No COS issued for this docket entry (Entered: 03/19/2014)
140 ORDER of USCA as to 121 Notice of Appeal, filed by Janin Kleid, Gary Bradley, Natasha N. Jackson, 123 Notice of Appeal,, filed by Neil S. Abercrombie 9CCA NOS. 12−16995, 12−16998. (emt, )No COS issued for this docket entry (Entered: 05/12/2014)
141 MEMORANDUM of USCA as to 121 Notice of Appeal, filed by Natasha N. Jackson, Janin Kleid, and Gary Bradley (9CCA No. 12−16995); and 123 Notice of Appeal, filed by Neil S. Abercrombie (9CCA No. 12−16998). The Judgment of the District Court is VACATED and REMANDED with directions to DISMISS. (afc)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 10/10/2014)
142 ORDER DISMISSING CASE AS MOOT. Signed by JUDGE ALAN C KAY on 10/23/2014.

Case: 1:11-cv-734 As of: 02/16/2015 03:22 PM HST 17 of 17

10/23/2014 11/04/2014

related: 141 USCA Memorandum. (afc)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 10/23/2014)
143 CLERK'S JUDGMENT IN A CIVIL CASE ~ The case is DISMISSED AS MOOT. re: 142 . (afc)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 10/23/2014)
144 MANDATE of USCA as to 121 Notice of Appeal, filed by Janin Kleid, Gary Bradley, Natasha N. Jackson, 123 Notice of Appeal, filed by Neil S. Abercrombie ~ 9CCA NOS. 12−16995, 12−16998. "The judgment of this Court, entered October 10, 2014, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure." (afc)
CERTIFICATE OF SERVICE
Participants registered to receive electronic notifications received this document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were
served by first class mail on the date of this docket entry (Entered: 11/04/2014)