Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 1 of 26

Peggy A. Tomsic (3879) tomsic@mgpclaw.com
James E. Magleby (7247) magleby@mgpclaw.com
Jennifer Fraser Parrish (11207) parrish@mgpclaw.com
MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

v.

GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County,

Case No.

Defendants.

Honorable

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 2 of 26
Plaintiffs Derek Kitchen, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood, and Kody Partridge (collectively, “Plaintiffs”) allege and complain against Defendants Gary R. Herbert, John Swallow, and Sherrie Swensen, in their official capacities (collectively, “State of Utah” or “Defendants”), as follows:
INTRODUCTION 1. More than 40 years ago, the Supreme Court of the United States recognized that “[m]arriage is one of the ‘basic rights of man,’ fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967). But today, as a result of the approval of Amendment 3 to the Utah Constitution on November 2, 2004, and its effective date on January 1, 2005 (“Amendment 3”), the State of Utah discriminates against and denies its gay and lesbian citizens access to marriage by providing in its constitution that “[m]arriage consists only of the legal union between a man and a woman.” Utah Constitution, Art. I, sec. 29. Amendment 3 further provides that “[n]o domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” Id. This unequal treatment of gay men and lesbians by the State of Utah denies them the basic liberties and equal protections under the law that are guaranteed by the Fourteenth Amendment to the United States Constitution. 2. For these reasons, Plaintiffs seek a declaration from this Court that Amendment 3 violates the Fourteenth Amendment to the United States Constitution and
2

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 3 of 26
is therefore unlawful, and a judgment to permanently enjoin enforcement of Amendment 3, and any other Utah statute that seeks to exclude gay men and lesbians from access to civil marriage.
JURISDICTION AND VENUE 3. This action raises questions under the Constitution of the United States and 42 U.S.C. § 1983, and thus this Court has jurisdiction over all claims for relief pursuant 28 U.S.C. § 1331. 4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because all Defendants reside in this District and the State of Utah. Venue is also proper because a substantial part of the events giving rise to the claims occurred in this district.
NATURE OF THE CASE 5. This action, pursuant to 42 U.S.C. § 1983, seeks: (1) a declaration that Amendment 3 to the Utah Constitution, which denies gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals are granted the opportunity to do; and also denies same-sex couples legally married in other states from having their marriage recognized in the State of Utah as an officially sanctioned family relationship with their loved ones, the same as heterosexual couples legally married in other states are officially recognized in the State of Utah, is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United
3

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 4 of 26
States Constitution; and (2) a permanent injunction preventing Defendants from enforcing Amendment 3 against Plaintiffs and compelling Defendants to recognize the Iowa marriage of Plaintiffs Karen Archer and Kate Call as a legal marriage in the State of Utah.
6. Plaintiffs also seek (1) a declaration that Utah Code Ann. § 30-1-2(5), which prohibits and declares void a marriage “between persons of the same sex”; and Utah Code Ann. § 30-1-4.1, which states that “[i]t is the policy of this state to recognize as marriage only the legal union of a man and a woman” and that “[e]xcept for a relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married” (collectively “Marriage Discrimination Statutes”), are unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; and (2) a permanent injunction preventing Defendants from enforcing those provisions against Plaintiffs and compelling the Defendants to recognize the Iowa marriage of Plaintiffs Karen Archer and Kate Call as a legal marriage in the State of Utah.
7. Plaintiffs Derek Kitchen and Moudi Sbeity are gay individuals in a committed relationship. Plaintiffs Laurie Wood and Kody Partridge are lesbian
4

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 5 of 26
individuals in a committed relationship. Both couples desire to express their love for, and commitment to, one another by getting married and obtaining official sanction for their family from the State of Utah, but Amendment 3 and the Marriage Discrimination Statutes deny them that right in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.
8. Plaintiffs Karen Archer and Kate Call are lesbian individuals in a committed relationship. Those Plaintiffs were legally married in the State of Iowa to express their love for, and commitment to, one another. As citizens of the State of Utah, they desire to have the State of Utah officially sanction their family, but Amendment 3 and the Marriage Discrimination Statues bar the State from treating them the same as heterosexual couples who are Utah citizens married under the laws of other states, and from recognizing their fundamental liberty and right of marriage in violation of the Due Process and Equal Protection Clauses of the United States Constitution.
9. To enforce the rights afforded by the United States Constitution, Plaintiffs bring this suit, pursuant to 42 U.S.C. § 1983, for declaratory and injunctive relief against the enforcement of Amendment 3 and the Marriage Discrimination Statutes. Plaintiffs also seek to recover all their attorneys’ fees, costs and expenses incurred in this action and any other relief that this Court may order.
5

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 6 of 26
PARTIES 10. Plaintiff Derek Kitchen (“Kitchen”) is a Utah citizen and resides in Salt Lake County, Utah. 11. Plaintiff Moudi Sbeity (“Sbeity”) is a Utah citizen and resides in Salt Lake County, Utah. 12. Plaintiff Karen Archer (“Archer”) is a Utah citizen and resides in Wasatch County, Utah. 13. Plaintiff Kate Call (“Call”) is a Utah citizen and resides in Wasatch County, Utah. 14. Plaintiff Laurie Wood (“Wood”) is a Utah citizen and resides in Salt Lake County, Utah. 15. Plaintiff Kody Partridge (“Partridge”) is a Utah citizen and resides in Salt Lake County, Utah. 16. Defendant Gary R. Herbert is the Governor of the State of Utah (“Governor”). In his official capacity, the Governor is the chief executive officer of the State of Utah. It is his responsibility to ensure that the laws of the State are properly enforced. The Governor maintains an office in Salt Lake City, Utah. 17. Defendant John Swallow is the Attorney General of the State of Utah (“Attorney General”). In his official capacity, the Attorney General is the chief legal officer of the State of Utah. It is his duty to see that the laws of the State are uniformly
6

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 7 of 26
and adequately enforced. The Attorney General maintains an office in Salt Lake City, Utah.
18. Defendant Sherrie Swensen is the Clerk for Salt Lake County. She is responsible for maintaining vital records of marriages, issuing marriage licenses, and performing civil marriage ceremonies in Salt Lake County.
19. Defendants, and those subject to their supervision, direction, and control, are responsible for the enforcement of Amendment 3 and the Marriage Discrimination Statutes. The relief requested in this action is sought against each Defendant, as well as against each Defendant’s officers, employees, and agents, and against all persons acting in cooperation with Defendant(s), under their supervision, at their direction, or under their control.
FACTUAL BACKGROUND Amendment 3
20. Gay and lesbian individuals have faced a long and painful history of societal and government-sponsored discrimination in this country. Although their sexual orientation bears no relation to their ability to contribute to society, gay men and lesbians have been singled out for discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual conduct between consenting adults,
7

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 8 of 26
harassment, hate crimes, and discrimination in employment and many other areas. They have even been the subject of laws stripping them of rights afforded to all other citizens.
21. Utah has been among the states that have enacted laws stripping gay men and lesbians of rights afforded to all other citizens. Gay men and lesbians also have been the subject of hate crimes in Utah.
22. The Utah Legislature enacted Utah Code Ann. § 30-1-2, which prohibits and declares void a marriage “between persons of the same sex.” Utah Code Ann. § 30-1-2(5). The Utah Legislature also enacted Utah Code Ann. § 30-1-4.1 which states that “[i]t is the policy of this state to recognize as marriage only the legal union of a man and a woman” and that “[e]xcept for a relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married.” Utah Code Ann. § 30-1-4.1(1)(a) & 1(b).
23. Nonetheless, gay men, lesbians and other proponents of equality in Utah have continued to press for the recognition of gay men and lesbians’ rights to equal treatment, including same-sex marriage, and sought protection under the law for hate crimes against them.
8

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 9 of 26
24. As gay men, lesbians and others continued to fight to obtain equal rights for gay men and lesbians in Utah, proponents of same-sex marriages in other states were beginning to be successful in having laws barring same sex marriage struck down as unconstitutional. For example, in Massachusetts, the Supreme Judicial Court of Massachusetts, on November 18, 2003, held the denial of marriage licenses to samesex couples violated provisions of the Massachusetts Constitution guaranteeing individual liberty and equality, and was not rationally related to a legitimate state interests. See Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).
25. Fearing that Utah would be forced to sanction gay marriages legally performed in other states and/or that the Marriage Discrimination Statutes might be held unconstitutional in light of cases in state and federal courts in other states, opponents of same-sex marriage began an effort to put an initiative on the November 2, 2004, ballot that would amend the Utah Constitution to ban same-sex marriage, arguing that the same-sex marriage ban would be on firmer ground if it were in the Utah Constitution.
26. In the 2004 General Session of the Utah Legislature, the Utah Legislature passed a Joint Resolution of Marriage proposing to amend the Utah Constitution to add a provision relating to marriage (the “Resolution”). In that Resolution, two-thirds of all the members elected to each of the legislative houses voted to propose to enact an amendment to the Utah Constitution, Utah Constitution Article I, Section 29, to read: “(1)
9

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 10 of 26
Marriage consists of only the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” In addition, the Resolution directed the Utah Lieutenant Governor to submit the prosed amendment to the voters of Utah at the next regular general election, which was on November 2, 2004, and provided that, if a majority of the voters approved the amendment, it was to take effect on January 1, 2005. Ten other states had similar constitutional amendments on their ballots for the 2004 general election.
27. The proposed constitutional amendment was placed on the ballot in the November 2, 2004 general election and became known as Constitutional Amendment 3 (“Amendment 3”). The Utah Voter Information Pamphlet General Election November 2, 2004 (“Pamphlet”), prepared under the direction of the Lieutenant Governor, stated that Amendment 3 would do the following:
Pamphlet at 35 (emphasis added). 10

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 11 of 26
28. Thus, the express and stated purpose of the ballot initiative was to single out gay men and lesbians alone by stripping them of federal constitutional protections that apply to all other citizens, and state protections and rights that are granted to all heterosexual married couples in Utah by operation of law.
29. The proponents of Amendment 3 – Utah State Legislators – stated that Amendment 3 was necessary to: “maintain[] public morality, the justified preference for heterosexual marriage with its capacity to perpetuate the human race and the importance of raising children in that preferred relationship.” Id. at 36. They further stated that Amendment 3 would ensure the continuation of “the ideal relationship where men, women and children thrive best and that is an enduring natural marriage between a man and a woman.” Id. Thus, the express and stated purpose of Amendment 3 was to further privately held moral views that same-sex couples were not moral and were inferior to heterosexual couples. These are the same types of justifications that were used to advance and preserve racist laws, directed against non-white minorities, such as laws banning interracial marriage.
30. It was subsequently reported that 65.86% of the ballots cast on November 2, 2004, voted to amend the Utah Constitution to add Amendment 3. The Amendment went into effect on January 1, 2005.
31. Since January 1, 2005, same-sex couples in Utah have been denied marriage licenses on account of Amendment 3. Meanwhile, nine other states and the
11

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 12 of 26
District of Columbia now allow same-sex marriages. However, under Amendment 3, same-sex couples legally married under the laws of other states, who are also Utah citizens, do not have their marriages officially sanctioned by the State of Utah. In other words, if a same-sex couple is legally married in another state, that marriage is not recognized in Utah. Utah citizens that are same-sex couples legally married under the laws of other states are treated differently than Utah citizens that are heterosexual couples legally married under the laws of other states. They are not afforded the same protections, rights and official sanction as such heterosexual couples.
32. Amendment 3 and the Marriage Discrimination Statutes have created a legal system in Utah in which civil marriage is restricted solely and exclusively to opposite-sex couples, and in which gay and lesbian individuals are denied the right to enter into a civil marriage with the person of their choice. In addition, under Amendment 3 and the Marriage Discrimination Statutes, gay men and lesbians who are citizens of the State of Utah are not entitled to the rights and responsibilities acquired through marriage by operation of law, even if they are legally married in another state. The inability to marry and the denial of official sanction of a legal marriage in another state, denies gay and lesbian individuals the personal and public affirmation that accompanies marriage. It also denies them the legal protections afforded married couples, such as child custody, inheritance and spousal medical
12

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 13 of 26
decision rights, that are granted to opposite-sex married couples by operation of law upon marriage.
Marriage is a Fundamental Right 33. Marriage is a supremely important social institution, and the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1, 12 (1967). “Marriage is widely regarded as the definitive expression of love and commitment in the United States.” Amendment 3 and the Marriage Discrimination Statutes “reserve[] the most socially valued forms of relationship (marriage) for opposite-sex couples.” See Perry v. Schwarzenegger, 704 F. Supp.2d 921, 974 (N.D. Cal. 2010). 34. “Same sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union. Like opposite-sex couples, same-sex couples have happy, satisfying relations and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.” Id. at 967. 35. Amendment 3 and the Marriage Discrimination Statutes “place[] the force of law behind stigmas against gay men and lesbians, including: gay men and lesbians do not have intimate relationships similar to heterosexual couples; gay men and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not
13

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 14 of 26
deserve the full recognition of society.” Id. at 973. Amendment 3 and the Marriage Discrimination Statutes “single[] out gay men and lesbians and legitimate[] their unequal treatment.” Amendment 3 and the Marriage Discrimination Statutes “perpetuate[] the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.” Id. at 979.
Plaintiffs Kitchen, Sbeity, Wood and Partridge Have Been Denied the Right to Marry, and
The State of Utah Refuses to Recognize the Iowa Marriage of Plaintiffs Archer and Call 36. Four of the Plaintiffs are gay men and lesbians who are residents of Utah
and involved in long-term, serious relationships with individuals of the same sex and desire to marry those individuals. They are now prohibited from doing so as a direct result of Defendants’ enforcement of Amendment 3 and the Marriage Discrimination Statutes.
37. On March 22, 2013, Plaintiffs Kitchen and Sbeity applied for a marriage license from Defendant Swensen, the Salt Lake County Clerk, but were denied because they are a same-sex couple.
38. On March 25, 2013, Plaintiffs Wood and Partridge applied for a marriage license from Defendant Swensen, the Salt Lake County Clerk, but were denied because they are a same-sex couple.
14

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 15 of 26
39. As a result of Amendment 3 and the Marriage Discrimination Statutes, those Plaintiffs are barred from marrying the individual they wish to marry.
40. Plaintiffs’ inability to marry and to have their relationship recognized by the State as a marriage with the protections, dignity and respect accorded to married opposite-sex couples has caused them significant hardship, including but not limited to the deprivation of rights guaranteed by the Fourteenth Amendment and Utah state laws afforded opposite-sex married couples, and subjected them to severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma. It is estimated that the denial of the right to marry, deprives same-sex couples of literally hundreds of protections and rights that opposite-sex married couples enjoy.
41. Each day that Plaintiffs are denied the freedom to marry, and are denied the State’s sanction of their lawful marriage under Iowa law, they suffer irreparable harm as a direct result of Defendants’ violation of their constitutional rights.
42. If the enforcement of Amendment 3 and the Marriage Discrimination Statutes is not enjoined, Defendants will continue to enforce an unconstitutional law against Plaintiffs, thereby depriving them of their constitutional rights under the Fourteenth Amendment. The declaratory and injunctive relief sought by Plaintiffs, on the other hand, will require Defendant Swensen to issue Plaintiffs Wood, Partridge, Kitchen, and Sbeity their marriage licenses. The relief sought also will require
15

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 16 of 26
Defendants Herbert and Swallow to officially sanction the Iowa marriage of Plaintiffs Archer and Call as valid within the State of Utah.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (Violation of Plaintiffs’ Constitutional Due Process Rights) 43. Plaintiffs incorporate by this reference allegations contained in paragraphs 1 through 42 above. 44. The Due Process Clause of the Fourteenth Amendment of the United States Constitution provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” U.S. Const Amend XIV, § 1. Individuals are protected by the Due Process Clause from arbitrary government intrusion into life, liberty and property. 45. Amendment 3 and the Marriage Discrimination Statutes violate fundamental liberties that are protected by the Due Process Clause of the Fourteenth Amendment, both on its face and as applied to Plaintiffs. 46. The freedom to marry is one of the fundamental liberties protected by the Due Process Clause of the Fourteenth Amendment. Amendment 3 and the Marriage Discrimination Statutes violate this fundamental right protected by the Due Process Clause because it prevents Plaintiffs from marrying the person of his or her choice and from having their legal marriage in another state from being legally recognized in Utah;
16

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 17 of 26
and the choice of marriage is sheltered by the Fourteenth Amendment from Utah’s unwarranted usurpation of that choice.
47. Amendment 3 and the Marriage Discrimination Statutes impinge on fundamental liberties protected by the Due Process Clause by discriminating against gay men and lesbians and denying them the opportunity to marry civilly, to have their civil marriage in another state legally recognized, and to enter into or maintain the same officially sanctioned family relationship with their loved ones as opposite-sex individuals. For example, by denying those individuals the same “marriage” designation afforded to opposite-sex couples, the State of Utah is stigmatizing gay men and lesbians, as well as their children and families, and denying them the same dignity, respect, and stature afforded officially recognized opposite-sex family relationships. In addition, this marriage discrimination denies gay men and lesbians the legal protections afforded by Utah law to opposite-sex married couples.
48. Because Plaintiffs seek to exercise their fundamental right to marry and to have their marriage in another state legally recognized, their claim that Amendment 3 and the Marriage Discrimination Statutes violate their Due Process rights is subject to strict scrutiny. Further, it is irrelevant that the Utah voters voted for Amendment 3 because fundamental liberties may not be submitted to a vote; election outcomes do not determine fundamental rights protected by the Fourteenth Amendment.
17

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 18 of 26
49. Amendment 3 and the Marriage Discrimination Statutes are unconstitutional under the Due Process Clause because they are not narrowly tailored to a compelling government interest.
50. As a result, the Court, pursuant to 28 U.S.C. § 2201, should construe Amendment 3 and enter a declaratory judgment stating that this law and any other Utah law that bars same-sex marriage, including the Marriage Discrimination Statutes, violate the Due Process Clause of the Fourteenth Amendment, and should enter a permanent injunction enjoining enforcement or application of Amendment 3 and any other Utah law that bars same sex-marriage, and compelling Defendants to legally recognize the marriage of Plaintiffs Archer and Call in the State of Utah.
SECOND CLAIM FOR RELIEF (Violation of Plaintiffs’ Constitutional Equal Protection Rights) 51. Plaintiffs incorporate by this reference allegations contained in paragraphs 1 through 50 above. 52. The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend XIV, § 1. The Fourteenth Amendment’s equal protection guarantee embodies the constitutional ideal that “all persons similarity situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
18

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 19 of 26
53. Amendment 3 and the Marriage Discrimination Statutes violate the Equal Protection Clause of the Fourteenth Amendment, both on their face and as applied to Plaintiffs.
54. For purposes of the Equal Protection Clause, Amendment 3 and the Marriage Discrimination Statutes should be subject to heightened scrutiny because gay men and lesbians are the type of minority strict scrutiny was designed to protect. Sexual orientation is a factor that “generally provides no sensible ground for differential treatment,” Cleburne, 473 U.S. at 440-41, and sexual orientation meets all four factors requiring heightened scrutiny for a classification: (1) gay and lesbian people have suffered a significant history of discrimination in this country: (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) not withstanding a measure of recent progress, gay and lesbian people are minorities with limited power to protect themselves from adverse outcomes in the political process, as demonstrated by Amendment 3.
55. Under the heightened scrutiny standard, Amendment 3 and the Marriage Discrimination Statutes violate the Equal Protection Clause because they are not “substantially” related to an important governmental purpose. There are no distinctions among lesbians, gay men and heterosexuals that amount to undeniable and real
19

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 20 of 26
differences that the government might need to take into account in legislating. The real purpose behind Amendment 3 and the Marriage Discrimination Statutes is prejudice against gay men and lesbians based on private moral views that are not supported by a legitimate factual basis.
56. Even if Amendment 3 and the Marriage Discrimination Statutes are not analyzed under the heightened scrutiny standard, they still violate the Equal Protection Clause because the classification drawn by Amendment 3 and the Marriage Discrimination Statues between opposite-sex and same-sex couples is not rationally related to a legitimate state interest. A state does not have a legitimate interest in disadvantaging an unpopular minority group merely because the group is unpopular, or there are private views that same-sex couples are morally inferior to opposite-sex couples or are inferior because there is something wrong with them. In fact, Amendment 3 and the Marriage Discrimination Statutes harm the state interest in equality because it requires that men and women be treated differently only based on discredited and antiquated notions of gender.
57. Amendment 3 and the Marriage Discrimination Statutes violate the Equal Protection Clause because they discriminate against gay men and lesbians by denying them a right to marry the person of their choice, whereas heterosexual men and women may do so freely, and it disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying. Amendment 3 and the Marriage
20

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 21 of 26
Discrimination Statutes also violate the Equal Protection Clause because they discriminates against gay men and lesbians legally married in another state by denying them the official sanction of their marriage in the State of Utah and the rights and benefits that flow from marriage, whereas heterosexual men and women legally married in another state have their marriage officially sanctioned by the State of Utah, and receive, by operation of law the rights and benefits that flow from marriage, and it disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from having out-of-state marriages not recognized in the State of Utah.
58. Amendment 3 and the Marriage Discrimination Statutes restrict civil marriage to individuals of the opposite sex; gay and lesbian individuals are therefore unable to marry the person of their choice or have their same-sex marriage in another state legally recognized in Utah. Thus, Utah law treats similarly-situated people differently by providing civil marriage to heterosexual couples, but not to gay and lesbian couples. As a consequence, gay and lesbian couples are not provided the tangible benefits and privileges of marriage. Even if these benefits and privileges were through some other mechanism besides civil marriage, it still would be unequal because the designation “marriage,” enjoys a long history and uniform recognition. Gay men and lesbians are therefore unequal in the eyes of the law, and their families are denied the same respect and legal rights as officially sanctioned families of opposite sex
21

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 22 of 26
individuals. By purposefully denying civil marriage to gay and lesbian individuals, Utah’s ban on same-sex marriage discriminates on the basis of sexual orientation.
59. The disadvantage Amendment 3 and the Marriage Discrimination Statutes impose upon gay men and lesbians is the result of disapproval or animus against a politically unpopular group. Amendment 3 and the Marriage Discrimination Statutes impose a special disability upon those persons alone and deprive them of specific legal protections afforded to opposite-sex married couples. Accordingly, Amendment 3 and the Marriage Discrimination Statutes violate the Equal Protection Clause of the Fourteenth Amendment because they single out gay men and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
60. Amendment 3 and the Marriage Discrimination Statues also violate the Equal Protection Clause because they discriminate on the basis of gender. They distinguish between couples consisting of a man and a woman and couples consisting of individuals of the same sex. Thus, the limitation on civil marriage depends upon an individual person’s gender; a man who wishes to marry a man may not do so because he is a man, and a woman may not marry a woman because she is a woman.
61. As a result, the Court, pursuant to 28 U.S.C. § 2201, should construe Amendment 3 and enter a declaratory judgment stating that this law and any other Utah law that bars same-sex marriage, including the Marriage Discrimination Statutes, violate the Equal Protection Clause of the Fourteenth Amendment, and should enter a
22

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 23 of 26
permanent injunction enjoining enforcement or application of Amendment 3 and any other Utah law that bars same sex-marriage, and compelling Defendants to legally recognize the marriage of Plaintiffs Archer and Call in the State of Utah.
THIRD CLAIM FOR RELIEF (Violation of 42 U.S.C. § 1983) 62. Plaintiffs incorporate by this reference allegations contained in paragraphs 1 through 61 above. 63. Insofar as they are enforcing the terms of Amendment 3 and/or the Marriage Discrimination Statutes, Defendants, acting under color of state law, are depriving and will continue to deprive Plaintiffs of numerous rights secured by the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. § 1983. 64. As a result, the Court, pursuant to 28 U.S.C. § 2201, should construe Amendment 3 and enter a declaratory judgment stating that this law and any other Utah law that bars same-sex marriage, including the Marriage Discrimination Statutes, violate 42 U.S.C. § 1983, and should enter a permanent injunction enjoining enforcement or application of Amendment 3 or any other Utah law that bars same-sex marriage, and to compel Defendants to legally recognize the marriage of Plaintiffs Archer and Call in the State of Utah.
23

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 24 of 26
FOURTH CLAIM FOR RELIEF (Irreparable Injury)
65. Plaintiffs incorporate by this reference allegations contained in paragraphs 1 through 64 above.
66. Plaintiffs are now severely and irreparably injured by Amendment 3 and the Marriage Discrimination Statutes– state laws that violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. By way of example only, Plaintiffs’ injury as a result of Amendment 3 and the Marriage Discrimination Statutes includes the deprivation of rights guaranteed under the Fourteenth Amendment; and the severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma caused by the inability to marry the ones they love and have society accord their unions and their families the same respect and dignity enjoyed by opposite-sex unions and families. Plaintiffs’ injuries will be redressed only if this Court declares Amendment 3 and the Marriage Discrimination Statutes unconstitutional and enjoins Defendants from enforcing them, and compels Defendants to legally recognize the marriage of Plaintiffs Archer and Call in the State of Utah.
67. An actual and judicially cognizable controversy exists between Plaintiffs and Defendants regarding whether Amendment 3 and the Marriage Discrimination Statutes violate the Dues Process and Equal Protection Clauses of the Fourteenth
24

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 25 of 26
Amendment. Defendants are presently enforcing these state laws to the detriment of Plaintiffs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs requests the entry of a judgment in their favor and against Defendants as follows: 1. A declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring that Amendment 3 and any other Utah law that bars same-sex marriage, including the Marriage Discrimination Statutes, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment and 42 U.S.C. § 1983. 2. A permanent injunction enjoining enforcement or application of Amendment 3 and any other Utah law that bars same sex-marriage, including the Marriage Discrimination Statutes, and compelling Utah to recognize the marriage of Plaintiffs Archer and Call as a marriage in the State of Utah. 3. A judgment awarding Plaintiffs their costs of suit, including reasonable attorney’ fees under 42 U.S.C. § 1988, and such other and further relief to which they may be entitled.
25

Case 2:13-cv-00217-RJS Document 2 Filed 03/25/13 Page 26 of 26

DATED this 25th day of March 2013. MAGLEBY & GREENWOOD, P.C.

James Jennifer

E. Magleby Peggy A. Tomsic
Fraser Parrish
Attorneys for Plaintiffs

26

 
 Kitchen v. Herbert, --- F.Supp.2d ---- (2013)

2013 WL 6697874 Only the Westlaw citation is currently available.
United States District Court, D. Utah,
Central Division.
Derek KITCHEN, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood, and Kody Partridge, Plaintiffs, v.
Gary R. HERBERT, John Swallow, and Sherrie Swensen, Defendants.
Case No. 2:13–cv–217. | Dec. 20, 2013.
Synopsis Background: Plaintiffs, who were three gay and lesbian couples who either desired to be married in Utah or, having already married elsewhere, wished to have their marriage recognized in Utah, brought action against Utah’s current and former Attorneys General and county clerk, seeking to challenge amendment to Utah’s Constitution, as well as two statutes, that prohibited same-sex marriage as violative of plaintiffs’ due process and equal protection rights under Fourteenth Amendment. Parties moved and cross-moved for summary judgment.
Holdings: The District Court, Robert J. Shelby, J., held that:
[1] suit presented substantial question of federal law over which court had jurisdiction;
[2] Utah law denied plaintiffs their right to exercise fundamental right to marry;
[3] court would apply rational basis test to plaintiffs’ equal protection claim; and
[4] state’s purported interests in promoting responsible procreation, promoting optimal child-rearing, and proceeding with caution were not furthered by prohibition.
Plaintiffs’ motion granted.

West Codenotes
Held Unconstitutional West’s U.C.A. Const. Art. 1, § 29; West’s U.C.A. §§ 30–1–2, 30–1–4.1
Recognized as Unconstitutional 1 U.S.C.A. § 7
Attorneys and Law Firms
Peggy A. Tomsic, James E. Magleby, Jennifer F. Parrish, Magleby & Greenwood PC, Salt Lake City, UT, for Plaintiffs.
Stanford Edward Purser, Utah Attorney General’s Office, Philip S. Lott, Salt Lake City, UT, for Defendants.
Opinion
MEMORANDUM DECISION AND ORDER
ROBERT J. SHELBY, District Judge.
*1 The Plaintiffs in this lawsuit are three gay and lesbian couples who wish to marry, but are currently unable to do so because the Utah Constitution prohibits same-sex marriage. The Plaintiffs argue that this prohibition infringes their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The State of Utah defends its laws and maintains that a state has the right to define marriage according to the judgment of its citizens. Both parties have submitted motions for summary judgment.
The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today. But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States. The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.
Few questions are as politically charged in the current climate. This observation is especially true where, as here, the state electorate has taken democratic action to
1

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
participate in a popular referendum on this issue. It is only under exceptional circumstances that a court interferes with such action. But the legal issues presented in this lawsuit do not depend on whether Utah’s laws were the result of its legislature or a referendum, or whether the laws passed by the widest or smallest of margins. The question presented here depends instead on the Constitution itself, and on the interpretation of that document contained in binding precedent from the Supreme Court and the Tenth Circuit Court of Appeals.
Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

young and came out to his mother when he was sixteen. Moudi’s mother took him to a psychiatrist because she thought he was confused, but the psychiatrist told her that there was nothing wrong with Moudi. After that visit, Moudi’s mother found it easier to accept Moudi’s identity, and Moudi began telling his other friends and family members. Moudi testifies that he was careful about whom he told because he was concerned that he might expose his mother to ridicule.
Derek and Moudi met each other in 2009 and fell in love shortly after meeting. After dating for eighteen months, the two moved in together in Salt Lake City. Derek and Moudi run a business called “Laziz” that they jointly started. Laziz produces and sells Middle Eastern spreads such as hummus, muhammara, and toum to Utah businesses like Harmon’s and the Avenues Bistro. Having maintained a committed relationship for over four years, Derek and Moudi desire to marry each other. They were denied a marriage license from the Salt Lake County Clerk’s office in March 2013.

BACKGROUND
I. The Plaintiffs The three couples in this lawsuit either desire to be married in Utah or are already legally married elsewhere and wish to have their marriage recognized in Utah. The court summarizes below the relevant facts from the affidavits that the couples filed in support of their Motion for Summary Judgment.
A. Derek Kitchen and Moudi Sbeity Derek Kitchen is a twenty-five-year-old man who was raised in Utah and obtained a B.A. in political science from the University of Utah. Moudi Sbeity is also twenty-five years old and was born in Houston, Texas. He grew up in Lebanon, but left that country in 2006 during the war between Lebanon and Israel. Moudi came to Logan, Utah, where he received a B.S. in economics from Utah State University. He is currently enrolled in a Master’s program in economics at the University of Utah.
*2 Derek testifies that he knew he was gay from a young age, but that he did not come out publicly to his friends and family for several years while he struggled to define his identity. Moudi also knew he was gay when he was

B. Karen Archer and Kate Call Karen Archer was born in Maryland in 1946, but spent most of her life in Boulder, Colorado. She received a B.A. and an M.D. from the University of Texas, after which she completed her residency in OB/GYN at the Pennsylvania State University. She worked as a doctor until 2001, when she retired after developing two serious illnesses. Karen experienced a number of hardships due to her sexual identity. Karen came out to her parents when she was twenty-six years old, but her parents believed that her sexual orientation was an abnormality and never accepted this aspect of Karen’s identity. Karen was one of thirteen women in a medical school class of 350, and she recalls that her male classmates often referred to the female students as “dykes.” Karen also testifies that she was once present at a gay bar when it was raided by the police, who assaulted the bar patrons with their batons.
Kate Call is sixty years old and spent her earliest years in Wisconsin and Mexico, where her parents were mission presidents for the Church of Jesus Christ of Latter-day Saints. When she was eight years old, Kate moved to Provo, Utah, where her father worked as a professor at Brigham Young University. Kate received her B.A. from BYU in 1974. While she was in college, she dated several men and was even engaged twice. Although she hoped that she would begin to feel a more intimate connection if she committed herself to marriage, she broke off both
2

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
engagements because she never developed any physical attraction to her fiancés. Kate began to realize that she was a lesbian, a feeling that continued to develop while she was serving a mission in Argentina. She wrote a letter sharing these feelings to her mission president, who, without Kate’s consent, faxed Kate’s message to church authorities and her parents. Kate’s family was sad and puzzled at first, but ultimately told her that they loved her unconditionally.
*3 During her professional life, Kate owned a number of businesses. In 2000, she bought a sheep ranch in San Juan County and moved there with D., her partner at the time. Kate worked seasonally for the National Park Service and D. found a job at the Youth Detention facility in Blanding. But when rumors surfaced that D. was a lesbian, D.’s boss told her that she needed to move away from Kate’s ranch if she wished to keep her job. While Kate was helping D. move, someone from D.’s work saw Kate’s vehicle at D.’s new trailer. That person reported the sighting to D.’s boss, and D. was fired. Several weeks later, Kate’s supervisor also told her that her services were no longer needed. Kate never found out why she was let go, but she surmises that her supervisor may have been pressured by D.’s boss, who was one of her supervisor’s mentors. Kate and D. moved back to the Wasatch Front, and Kate was eventually forced to sell the ranch. Kate testifies that she and D. split up as a result of the difficult challenges they had faced, and Kate eventually moved to Moab.
Karen and Kate met online through a dating website and were immediately attracted to each other when they first met in person. Karen moved from Colorado to Utah, and the couple now lives in Wallsburg. The two are both concerned about how they will support each other in the event that one of them passes away, a consideration that is especially urgent in light of Karen’s illness. Karen has had difficult experiences with the legal aspects of protecting a same-sex union in the past. Before meeting Kate, Karen had two partners who passed away while she was with them. While partnered to a woman named Diana, Karen had to pay an attorney approximately one thousand dollars to draw up a large number of legal documents to guarantee certain rights: emergency contacts, visitation rights, power of attorney for medical and financial decisions, medical directives, living wills, insurance beneficiaries, and last wills and testaments. Despite these documents, Karen was unable to receive Diana’s military pension when Diana died in 2005.
Karen and Kate have drawn up similar legal papers, but

they are concerned that these papers may be subject to challenges because they are not legally recognized as a couple in Utah. In an attempt to protect themselves further, Karen and Kate flew to Iowa to be wed in a city courthouse. Because of the cost of the plane tickets, the couple was not able to have friends and family attend, and the pair had their suitcases by their side when they said, “I do.” Kate testifies that the pragmatism of their Iowa wedding was born out of the necessity of providing whatever security they could for their relationship. Under current law, Utah does not recognize their marriage performed in Iowa.
C. Laurie Wood and Kody Partridge Laurie Wood has lived in Utah since she was three years old. She grew up in American Fork, received a B.A. from the University of Utah, and received her Master’s degree from BYU. She spent over eleven years teaching in the public school system in Utah County and is now employed by Utah Valley University. She teaches undergraduate courses as an Associate Professor of English in the English and Literature Department, and also works as the Concurrent Enrollment Coordinator supervising high school instructors who teach as UVU adjuncts in high schools across Utah County. She has served on the Board of Directors for the American Civil Liberties Union for fifteen years and co-founded the non-profit Women’s Redrock Music Festival in 2006. Laurie was not open about her sexual identity while she was a public school teacher because she believed she would be fired if she said anything. She came out when she was hired at UVU. While she dated men in high school and college, she never felt comfortable or authentic in her relationships until she began dating women.
*4 Kody Partridge is forty-seven years old and moved to Utah from Montana in 1984 to attend BYU. She received her B.A. in Spanish and humanities and later obtained a Master’s degree in English. She earned a teaching certificate in 1998 and began teaching at Butler Middle School in Salt Lake County. She realized that she was a lesbian while she was in college, and her family eventually came to accept her identity. She did not feel she could be open about her identity at work because of the worry that her job would be at risk. While she was teaching at Butler, Kody recalls that the story of Wendy Weaver was often in the news. Ms. Weaver was a teacher and coach at a Utah public school who was fired because she was a lesbian. Kody also became aware that the
3

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
pension she was building in Utah Retirement Systems as a result of her teaching career could not be inherited by a life partner. Given these concerns, Kody applied and was accepted for a position in the English department at Rowland Hall–St. Mark’s, a private school that provides benefits for the same-sex partners of its faculty members. Kody volunteers with the Utah AIDS Foundation and has traveled with her students to New Orleans four times after Hurricane Katrina to help build homes with Habitat for Humanity.
Laurie and Kody met and fell in love in 2010. Besides the fact that they are both English teachers, the two share an interest in books and gardening and have the same long-term goals for their committed relationship. They wish to marry, but were denied a marriage license from the Salt Lake County Clerk’s office in March 2013.
II. History of Amendment 3 The Utah laws that are at issue in this lawsuit include two statutory prohibitions on same-sex unions and an amendment to the Utah Constitution. The court discusses the history of these laws in the context of the ongoing national debate surrounding same-sex marriage.
In 1977, the Utah legislature amended Section 30–1–2 of the Utah Code to state that marriages “between persons of the same sex” were “prohibited and declared void.” In 2004, the Utah legislature passed Section 30–1–4.1 of the Utah Code, which provides:
(1) (a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter.
(b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and woman because they are married.
In the 2004 General Session, the Utah legislature also passed a Joint Resolution on Marriage, which directed the Lieutenant Governor to submit the following proposed amendment to the Utah Constitution to the voters of Utah:
(1) Marriage consists only of the legal union between

a man and a woman.
(2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.
*5 Laws 2004, H.J.R. 25 § 1. The proposed amendment, which became known as Amendment 3, was placed on the ballot for the general election on November 2, 2004. Amendment 3 passed with the support of approximately 66% of the voters. The language in Amendment 3 was then amended to the Utah Constitution as Article I, § 29, which went into effect on January 1, 2005.1
These developments were influenced by a number of events occurring nationally. In 1993, the Hawaii Supreme Court found that the State of Hawaii’s refusal to grant same-sex couples marriage licenses was discriminatory. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 59 (1993).2 And in 1999, the Vermont Supreme Court held that the State of Vermont was required to offer all the benefits of marriage to same-sex couples. Baker v. Vermont, 170 Vt. 194, 744 A.2d 864, 886–87 (1999).3 Two court cases in 2003 immediately preceded Utah’s decision to amend its Constitution. First, the United States Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protected the sexual relations of gay men and lesbians. Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Second, the Supreme Court of Massachusetts ruled that the Massachusetts Constitution protected the right of same-sex couples to marry. Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 948 (2003).
Since 2003, every other state has either legalized same-sex marriage4 or, like Utah, passed a constitutional amendment or other legislation to prohibit same-sex unions. During the past two decades, the federal government has also been involved in the same-sex marriage debate. In 1996, Congress passed the Defense of Marriage Act (DOMA), which allowed states to refuse to recognize same-sex marriages granted in other states and barred federal recognition of same-sex unions for the purposes of federal law. Act of Sept. 21, 1996, Pub.L. 104–199, 110 Stat. 2419. In 2013, the Supreme Court held that Section 3 of DOMA was unconstitutional.5 United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 2696, 186 L.Ed.2d 808 (2013).
The Supreme Court also considered an appeal from a case involving California’s Proposition 8. After the California Supreme Court held that the California Constitution
4

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
recognized same-sex marriage, In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 453 (2008), California voters passed Proposition 8, which amended California’s Constitution to prohibit same-sex marriage. The Honorable Vaughn Walker, a federal district judge, determined that Proposition 8 violated the guarantees of equal protection and due process under the United States Constitution. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1003 (N.D.Cal.2010). Applying different reasoning, the Ninth Circuit Court of Appeals affirmed Judge Walker’s holding that Proposition 8 was unconstitutional. Perry v. Brown, 671 F.3d 1052, 1095 (9th Cir.2012). This issue was appealed to the Supreme Court, but the Court did not address the merits of the question presented. Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652, 2668, 186 L.Ed.2d 768 (2013). Instead, the Court found that the proponents of Proposition 8 did not have standing to appeal Judge Walker’s decision after California officials refused to defend the law. Id. Consequently, the Supreme Court vacated the Ninth Circuit’s opinion for lack of jurisdiction. Id. A number of lawsuits, including the suit currently pending before this court, have been filed across the country to address the question that the Supreme Court left unanswered in the California case. The court turns to that question now.
ANALYSIS
I. Standard of Review *6 The court grants summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court “view[s] the evidence and make[s] all reasonable inferences in the light most favorable to the nonmoving party.” N. Natural Gas Co. v. Nash Oil & Gas, Inc., 526 F.3d 626, 629 (10th Cir.2008).
II. Effect of the Supreme Court’s Decision in United States v. Windsor The court begins its analysis by determining the effect of the Supreme Court’s recent decision in United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). In Windsor, the Court considered the constitutionality of Section 3 of DOMA, which defined marriage as the “legal union between one man and one

woman as husband and wife” for the purposes of federal law. 1 U.S.C. § 7 (2012). A majority of the Court found that this statute was unconstitutional because it violated the Fifth Amendment of the United States Constitution. Windsor, 133 S.Ct. at 2696.
Both parties argue that the reasoning in Windsor requires judgment in their favor. The State focuses on the portions of the Windsor opinion that emphasize federalism, as well as the Court’s acknowledgment of the State’s “historic and essential authority to define the marital relation.” Id. at 2692; see also id. at 2691 (“[S]ubject to [constitutional] guarantees, ‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’ ” (quoting Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975))). The State interprets Windsor to stand for the proposition that DOMA was unconstitutional because the statute departed from the federal government’s “history and tradition of reliance on state law to define marriage.” Id. at 2692. Just as the federal government cannot choose to disregard a state’s decision to recognize same-sex marriage, Utah asserts that the federal government cannot intrude upon a state’s decision not to recognize same-sex marriage. In other words, Utah believes that it is up to each individual state to decide whether two persons of the same sex may “occupy the same status and dignity as that of a man and woman in lawful marriage.” Id. at 2689.
The Plaintiffs disagree with this interpretation and point out that the Windsor Court did not base its decision on the Tenth Amendment.6 Instead, the Court grounded its holding in the Due Process Clause of the Fifth Amendment, which protects an individual’s right to liberty. Id. at 2695 (“DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”). The Court found that DOMA violated the Fifth Amendment because the statute “place[d] same-sex couples in an unstable position of being in a second-tier marriage,” a differentiation that “demean[ed] the couple, whose moral and sexual choices the Constitution protects[.]” Id. at 2694. The Plaintiffs argue that for the same reasons the Fifth Amendment prohibits the federal government from differentiating between same-sex and opposite-sex couples, the Fourteenth Amendment prohibits state governments from making this distinction.
*7 Both parties present compelling arguments, and the protection of states’ rights and individual rights are both weighty concerns. In Windsor, these interests were allied against the ability of the federal government to disregard
5

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
a state law that protected individual rights. Here, these interests directly oppose each other. The Windsor court did not resolve this conflict in the context of state-law prohibitions of same-sex marriage. See id. at 2696 (Roberts, C.J., dissenting) (“The Court does not have before it ... the distinct question whether the States ... may continue to utilize the traditional definition of marriage.”). But the Supreme Court has considered analogous questions that involve the tension between these two values in other cases. See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (balancing the state’s right to regulate marriage against the individual’s right to equal protection and due process under the law). In these cases, the Court has held that the Fourteenth Amendment requires that individual rights take precedence over states’ rights where these two interests are in conflict. See id. at 7, 87 S.Ct. 1817 (holding that a state’s power to regulate marriage is limited by the Fourteenth Amendment).
The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion ... is that DOMA is motivated by “bare ... desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
133 S.Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

III. Baker v. Nelson Is No Longer Controlling Precedent In 1971, two men from Minnesota brought a lawsuit in state court arguing that Minnesota was constitutionally required to allow them to marry. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971). The Minnesota Supreme Court found that Minnesota’s restriction of marriage to opposite-sex couples did not violate either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. Id. at 186–87. On appeal, the United States Supreme Court summarily dismissed the case “for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972).
*8 Utah argues that the Court’s summary dismissal in Baker is binding on this court and that the present lawsuit should therefore be dismissed for lack of a substantial federal question. But the Supreme Court has stated that a summary dismissal is not binding “when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975).
[1] Here, several doctrinal developments in the Court’s analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbians demonstrate that the Court’s summary dismissal in Baker has little if any precedential effect today. Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality op.), but also before the Court recognized that the Constitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635–36, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Moreover, Baker was decided before the Supreme Court held in Lawrence v. Texas that it was unconstitutional for a state to “demean [the] existence [of gay men and lesbians] or control their destiny by making their private sexual conduct a crime.” 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). As discussed below, the Supreme Court’s decision in Lawrence removes a justification that states could formerly cite as a reason to prohibit same-sex marriage.
The State points out that, despite the doctrinal developments in these cases and others, a number of courts have found that Baker survives as controlling precedent and therefore precludes consideration of the issues in this lawsuit. See, e.g., Massachusetts v. U.S.
6

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir.2012) (holding that Baker “limit[s] the arguments to ones that do not presume to rest on a constitutional right to same-sex marriage.”); Sevcik v. Sandoval, 911 F.Supp.2d 996, 1002–03 (D.Nev.2012) (ruling that Baker barred the plaintiffs’ equal protection claim). Other courts disagree and have decided substantially similar issues without consideration of Baker. See, e.g., Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal.2010) (ruling that California’s prohibition of same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment). In any event, all of these cases were decided before the Supreme Court issued its opinion in Windsor.
As discussed above, the Court’s decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development. Importantly, the Windsor Court foresaw that its ruling would precede a number of lawsuits in state and lower federal courts raising the question of a state’s ability to prohibit same-sex marriage, a fact that was noted by two dissenting justices. The Honorable John Roberts wrote that the Court “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.” Windsor, 133 S.Ct. at 2697 (Roberts, C.J., dissenting). And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it: “I do not mean to suggest disagreement ... that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples.” Id. at 2709 (Scalia, J., dissenting). It is also notable that while the Court declined to reach the merits in Hollingsworth v. Perry because the petitioners lacked standing to pursue the appeal, the Court did not dismiss the case outright for lack of a substantial federal question. See ––– U.S. ––––, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). Given the Supreme Court’s disposition of both Windsor and Perry, the court finds that there is no longer any doubt that the issue currently before the court in this lawsuit presents a substantial question of federal law.
*9 As a result, Baker v. Nelson is no longer controlling precedent and the court proceeds to address the merits of the question presented here.
IV. Amendment 3 Violates the Plaintiffs’ Due Process

Rights [2] [3] The State of Utah contends that what is at stake in this lawsuit is the State’s right to define marriage free from federal interference. The Plaintiffs counter that what is really at issue is an individual’s ability to protect his or her fundamental rights from unreasonable interference by the state government. As discussed above, the parties have defined the two important principles that are in tension in this matter. While Utah exercises the “unquestioned authority” to regulate and define marriage, Windsor, 133 S.Ct. at 2693, it must nevertheless do so in a way that does not infringe the constitutional rights of its citizens. See id. at 2692 (noting that the “incidents, benefits, and obligations of marriage” may vary from state to state but are still “subject to constitutional guarantees”). As a result, the court’s role is not to define marriage, an exercise that would be improper given the states’ primary authority in this realm. Instead, the court’s analysis is restricted to a determination of what individual rights are protected by the Constitution. The court must then decide whether the State’s definition and regulation of marriage impermissibly infringes those rights.
[4] [5] The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights “may not be submitted to vote; they depend on the outcome of no elections.” W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). When the Constitution was first ratified, these rights were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government. After the nation’s wrenching experience in the Civil War, the people adopted the Fourteenth Amendment, which holds: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment applies to “matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal constitution from invasion by the States.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quoting Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)).
7

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
The most familiar of an individual’s substantive liberties are those recognized by the Bill of Rights, and the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment incorporates most portions of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147–48, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (discussing incorporation of certain rights from the First, Fourth, Fifth, and Sixth Amendments); McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010) (incorporating the Second Amendment). In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court recognized the authority of an argument first made by the Honorable John Marshall Harlan II that the Due Process Clause also protects a number of unenumerated rights from unreasonable invasion by the State:
*10 [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement.
Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds), quoted in Casey, 505 U.S. at 848–49, 112 S.Ct. 2791.
A. Supreme Court Cases Protecting Marriage as a

Fundamental Right [6] The right to marry is an example of a fundamental right that is not mentioned explicitly in the text of the Constitution but is nevertheless protected by the guarantee of liberty under the Due Process Clause. The Supreme Court has long emphasized that the right to marry is of fundamental importance. In Maynard v. Hill, the Court characterized marriage as “the most important relation in life” and as “the foundation of the family and society, without which there would be neither civilization nor progress.” 125 U.S. 190, 205, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888). In Meyer v. Nebraska, the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause. 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). And in Skinner v. Oklahoma ex rel. Williamson, the Court ruled that marriage is “one of the basic civil rights of man.” 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).
In more recent cases, the Court has held that the right to marry implicates additional rights that are protected by the Fourteenth Amendment. For instance, the Court’s decision in Griswold v. Connecticut, in which the Court struck down a Connecticut law that prohibited the use of contraceptives, established that the right to marry is intertwined with an individual’s right of privacy. The Court observed:
We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). And in M.L.B. v. S.L.J., the Court described marriage as an associational right: “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked ‘of basic importance in our society,’ rights sheltered by the
8

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (citation omitted).
*11 The Supreme Court has consistently held that a person must be free to make personal decisions related to marriage without unjustified government interference. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Carey v. Population Servs. Int’l, 431 U.S. 678, 684–85, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (“[I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.” (citations and internal quotation marks omitted)); Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (“But the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.”). In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court emphasized the high degree of constitutional protection afforded to an individual’s personal choices about marriage and other intimate decisions:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Casey, 505 U.S. at 851, 112 S.Ct. 2791.
Given the importance of marriage as a fundamental right and its relation to an individual’s rights to liberty, privacy,

and association, the Supreme Court has not hesitated to invalidate state laws pertaining to marriage whenever such a law intrudes on an individual’s protected realm of liberty. Most famously, the Court struck down Virginia’s law against interracial marriage in Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court found that Virginia’s anti-miscegenation statute violated both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Id. The Court has since noted that Loving was correctly decided, even though mixed-race marriages had previously been illegal in many states7 and, moreover, were not specifically protected from government interference at the time the Fourteenth Amendment was ratified: “Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.” Casey, 505 U.S. at 847–48, 112 S.Ct. 2791; see also Perry v. Schwarzenegger, 704 F.Supp.2d 921, 992 (N.D.Cal.2010) (“[T]he Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.”).
*12 In addition to the anti-miscegenation laws the Supreme Court struck down in Loving, the Supreme Court has held that other state regulations affecting marriage are unconstitutional where these laws infringe on an individual’s access to marriage. In Zablocki v. Redhail, the Court considered a Wisconsin statute that required any Wisconsin resident who had children that were not currently in the resident’s custody to obtain a court order before the resident was permitted to marry. 434 U.S. 374, 375, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). The statute mandated that the court should not grant permission to marry unless the resident proved that he was in compliance with any support obligation for his out-of-custody children, and could also show that any children covered by such a support order “[were] not then and [were] not likely thereafter to become public charges.” Id. (quoting Wis. Stat. § 245.10 (1973)). The Court found that, while the State had a legitimate and substantial interest in the welfare of children in Wisconsin, the statute was nevertheless unconstitutional because it was not “closely tailored to effectuate only those interests” and “unnecessarily impinge[d] on the right to marry[.]” Id. at 388, 98 S.Ct. 673. The Court distinguished the statute at issue from reasonable state regulations related to marriage that would not require any heightened review:
9

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)

By reaffirming the fundamental

character of the right to marry, we

do not mean to suggest that every

state regulation which relates in

any way to the incidents of or

prerequisites for marriage must be

subjected to rigorous scrutiny. To

the contrary, reasonable regulations

that do not significantly interfere

with decisions to enter into the

marital

relationship

may

legitimately be imposed.

Id. at 386, 98 S.Ct. 673. As the Honorable John Paul Stevens noted in his concurring opinion, “A classification based on marital status is fundamentally different from a classification which determines who may lawfully enter into the marriage relationship.” Id. at 403–04, 98 S.Ct. 673 (Stevens, J., concurring).

In Turner v. Safley, the Court struck down a Missouri regulation that prohibited inmates from marrying unless the prison superintendent approved of the marriage. 482 U.S. 78, 99–100, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The Court held that inmates retained their fundamental right to marry even though they had a reduced expectation of liberty in prison. Id. at 96, 107 S.Ct. 2254. The Court emphasized the many attributes of marriage that prisoners could enjoy even if they were not able to have sexual relations:

First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a

precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
*13 Id. at 95–96, 107 S.Ct. 2254.
[7] These cases demonstrate that the Constitution protects an individual’s right to marry as an essential part of the right to liberty. The right to marry is intertwined with the rights to privacy and intimate association, and an individual’s choices related to marriage are protected because they are integral to a person’s dignity and autonomy. While states have the authority to regulate marriage, the Supreme Court has struck down several state regulations that impermissibly burdened an individual’s ability to exercise the right to marry. With these general observations in mind, the court turns to the specific question of Utah’s ability to prohibit same-sex marriage.
B. Application of the Court’s Jurisprudence to Amendment 3 [8] The State does not dispute, nor could it, that the Plaintiffs possess the fundamental right to marry that the Supreme Court has protected in the cases cited above. Like all fundamental rights, the right to marry vests in every American citizen. See Zablocki, 434 U.S. at 384, 98 S.Ct. 673 (“Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.”). The State asserts that Amendment 3 does not abridge the Plaintiffs’ fundamental right to marry because the Plaintiffs are still at liberty to marry a person of the opposite sex. But this purported liberty is an illusion. The right to marry is not simply the right to become a married person by signing a contract with someone of the opposite sex. If marriages were planned and arranged by the State, for example, these marriages would violate a person’s right to marry because such arrangements would infringe an individual’s
10

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
rights to privacy, dignity, and intimate association. A person’s choices about marriage implicate the heart of the right to liberty that is protected by the Fourteenth Amendment. See Casey, 505 U.S. at 851, 112 S.Ct. 2791. The State’s argument disregards these numerous associated rights because the State focuses on the outward manifestations of the right to marry, and not the inner attributes of marriage that form the core justifications for why the Constitution protects this fundamental human right.
Moreover, the State fails to dispute any of the facts that demonstrate why the Plaintiffs’ asserted right to marry someone of the opposite sex is meaningless. The State accepts without contest the Plaintiffs’ testimony that they cannot develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex. The Plaintiffs have not come to this realization lightly, and their recognition of their identity has often risked their family relationships and work opportunities. For instance, Kody and Laurie both worried that they would lose their jobs as English teachers if they were open about their sexual identity. Kate’s previous partner did lose her job because she was a lesbian, and Kate may have been let go from her position with the National Park Service for the same reason. Karen’s family never accepted her identity, and Moudi testified that he remained cautious about openly discussing his sexuality because he feared that his mother might be ridiculed. The Plaintiffs’ testimony supports their assertions that their sexual orientation is an inherent characteristic of their identities.
*14 Forty years ago, these assertions would not have been accepted by a court without dispute. In 1973, the American Psychiatric Association still defined homosexuality as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM–II), and leading experts believed that homosexuality was simply a lifestyle choice. With the increased visibility of gay men and lesbians in the past few decades, a wealth of new knowledge about sexuality has upended these previous beliefs. Today, the State does not dispute the Plaintiffs’ testimony that they have never been able to develop feelings of deep intimacy for a person of the opposite sex, and the State presents no argument or evidence to suggest that the Plaintiffs could change their identity if they desired to do so. Given these undisputed facts, it is clear that if the Plaintiffs are not allowed to marry a partner of the same sex, the Plaintiffs will be forced to remain unmarried. The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights. The

State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.
While admitting that its prohibition of same-sex marriage harms the Plaintiffs, the State argues that the court’s characterization of Amendment 3 is incorrect for three reasons: (1) the Plaintiffs are not qualified to enter into a marriage relationship; (2) the Plaintiffs are seeking a new right, not access to an existing right; and (3) history and tradition have not recognized a right to marry a person of the same sex. The court addresses each of these arguments in turn.
1. The Plaintiffs Are Qualified to Marry
[9] [10] First, the State contends that same-sex partners do not possess the qualifications to enter into a marriage relationship and are therefore excluded from this right as a definitional matter. As in other states, the purposes of marriage in Utah include “the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another[,] and to join in an economic partnership and support one another and any dependents.” Perry v. Schwarzenegger, 704 F.Supp.2d 921, 961 (N.D.Cal.2010). There is no dispute that the Plaintiffs are able to form a committed relationship with one person to the exclusion of all others. There is also no dispute that the Plaintiffs are capable of raising children within this framework if they choose to do so. The State even salutes “[t]he worthy efforts of same-sex couples to rear children.” (Defs.’ Mem. in Opp’n, at 46 n. 7, Dkt. 84.) Nevertheless, the State maintains that same-sex couples are distinct from opposite-sex couples because they are not able to naturally reproduce with each other. The State points to Supreme Court cases that have linked the importance of marriage to its relationship to procreation. See, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the race.”).
*15 The court does not find the State’s argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious
11

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children. Under the State’s reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate. This proposition is irreconcilable with the right to liberty that the Constitution guarantees to all citizens.
At oral argument, the State attempted to distinguish post-menopausal women from gay men and lesbians by arguing that older women were more likely to find themselves in the position of caring for a grandchild or other relative. But the State fails to recognize that many same-sex couples are also in the position of raising a child, perhaps through adoption or surrogacy. The court sees no support for the State’s suggestion that same-sex couples are interested only in a “consent-based” approach to marriage, in which marriage focuses on the strong emotional attachment and sexual attraction of the two partners involved. See Windsor, 133 S.Ct. at 2718 (Alito, J., dissenting). Like opposite-sex couples, same-sex couples may decide to marry partly or primarily for the benefits and support that marriage can provide to the children the couple is raising or plans to raise. Same-sex couples are just as capable of providing support for future generations as opposite-sex couples, grandparents, or other caregivers. And there is no difference between same-sex couples who choose not to have children and those opposite-sex couples who exercise their constitutionally protected right not to procreate. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
In any event, the State’s argument also neglects to consider the number of additional important attributes of marriage that exist besides procreation. As noted above, the Supreme Court has discussed those attributes in the context of marriages between inmates. Turner v. Safley, 482 U.S. 78, 95–96, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). While the Supreme Court noted that some inmates might one day be able to consummate their marriages when they were released, the Court found that marriage was important irrespective of its relationship to procreation because it was an expression of emotional support and public commitment, it was spiritually significant, and it provided access to important legal and government benefits. Id. These attributes of marriage are as applicable to same-sex couples as they are to opposite-sex couples.

2. The Plaintiffs Seek Access to an Existing Right
[11] [12] The State’s second argument is that the Plaintiffs are really seeking a new right, not access to an existing right. To establish a new fundamental right, the court must determine that the right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [it] were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (citations omitted). Because same-sex marriage has only recently been allowed by a number of states, the State argues that an individual’s right to marry someone of the same sex cannot be a fundamental right. But the Supreme Court did not adopt this line of reasoning in the analogous case of Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Instead of declaring a new right to interracial marriage, the Court held that individuals could not be restricted from exercising their existing right to marry on account of the race of their chosen partner. Id. at 12, 87 S.Ct. 1817. Similarly, the Plaintiffs here do not seek a new right to same-sex marriage, but instead ask the court to hold that the State cannot prohibit them from exercising their existing right to marry on account of the sex of their chosen partner.
*16 The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference. And, as discussed above, this right is enjoyed by all individuals. If the right to same-sex marriage were a new right, then it should make new protections and benefits available to all citizens. But heterosexual individuals are as likely to exercise their purported right to same-sex marriage as gay men and lesbians are to exercise their purported right to opposite-sex marriage. Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.
12

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
While it was assumed until recently that a person could only share an intimate emotional bond and develop a family with a person of the opposite sex, the realization that this assumption is false does not change the underlying right. It merely changes the result when the court applies that right to the facts before it. Applying that right to these Plaintiffs, the court finds that the Constitution protects their right to marry a person of the same sex to the same degree that the Constitution protects the right of heterosexual individuals to marry a person of the opposite sex.
Because the right to marry has already been established as a fundamental right, the court finds that the Glucksberg analysis is inapplicable here. The Plaintiffs are seeking access to an existing right, not the declaration of a new right.

3. Tradition and History Are Insufficient Reasons to Deny Fundamental Rights to an Individual.
[13] [14] Finally, the State contends that the fundamental right to marriage cannot encompass the right to marry someone of the same sex because this right has never been interpreted to have this meaning in the past. The court is not persuaded by the State’s argument. The Constitution is not so rigid that it always mandates the same outcome even when its principles operate on a new set of facts that were previously unknown:

Had those who drew and ratified

the Due Process Clauses of the

Fifth Amendment or the Fourteenth

Amendment

known

the

components of liberty in its

manifold possibilities, they might

have been more specific. They did

not presume to have this insight.

They knew times can blind us to

certain truths and later generations

can see that laws once thought

necessary and proper in fact serve

only to oppress. As the Constitution

endures, persons in every

generation can invoke its principles

in their own search for greater

freedom.

*17 Lawrence v. Texas, 539 U.S. 558, 578–79, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex. The court, and the State, must adapt to this changed understanding.
C. Summary of Due Process Analysis The Fourteenth Amendment protects the liberty rights of all citizens, and none of the State’s arguments presents a compelling reason why the scope of that right should be greater for heterosexual individuals than it is for gay and lesbian individuals. If, as is clear from the Supreme Court cases discussing the right to marry, a heterosexual person’s choices about intimate association and family life are protected from unreasonable government interference in the marital context, then a gay or lesbian person also enjoys these same protections.
The court’s holding is supported, even required, by the Supreme Court’s recent opinion concerning the scope of protection that the Fourteenth Amendment provides to gay and lesbian citizens. In Lawrence v. Texas, the Court overruled its previous decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and held that the Due Process Clause protected an individual’s right to have sexual relations with a partner of the same sex. 539 U.S. at 578, 123 S.Ct. 2472. The Court ruled: “The Texas [sodomy] statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Id. While the Court stated that its opinion did not address “whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” id., the Court confirmed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and held that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574, 123 S.Ct. 2472 (emphasis added). The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex:
Today’s opinion dismantles the structure of
13

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?
Id. at 604–05, 123 S.Ct. 2472 (Scalia, J., dissenting) (citations omitted).
*18 [15] The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals. The only other distinction the State has attempted to make is its argument that same-sex couples are not able to naturally reproduce with each other. But, of course, neither can thousands of opposite-sex couples in Utah. As a result, there is no legitimate reason that the rights of gay and lesbian individuals are any different from those of other people. All citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual’s ability to marry and the intimate choices a person makes about marriage and family.
The court therefore finds that the Plaintiffs have a fundamental right to marry that protects their choice of a same-sex partner.
D. Amendment 3 Does Not Survive Strict Scrutiny The court’s determination that the fundamental right to marry encompasses the Plaintiffs’ right to marry a person of the same sex is not the end of the court’s analysis. The State may pass a law that restricts a person’s fundamental rights provided that the law is “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). For instance, a state may permissibly regulate the age at which a person may be married because the state has a compelling interest in protecting children against abuse and coercion. Similarly, a state need not allow an individual to marry if that person is mentally incapable of forming the requisite consent, or if that prohibition is part of the punishment for a prisoner serving a life sentence. See Butler v. Wilson, 415 U.S. 953, 94 S.Ct. 1479, 39 L.Ed.2d 569 (1974) (summarily affirming decision to uphold a state law that

prohibited prisoners incarcerated for life from marrying).
The court finds no reason that the Plaintiffs are comparable to children, the mentally incapable, or life prisoners. Instead, the Plaintiffs are ordinary citizens—business owners, teachers, and doctors—who wish to marry the persons they love. As discussed below, the State of Utah has not demonstrated a rational, much less a compelling, reason why the Plaintiffs should be denied their right to marry. Consequently, the court finds that Amendment 3 violates the Plaintiffs’ due process rights under the Fourteenth Amendment.
V. Amendment 3 Violates the Plaintiffs’ Right to Equal Protection [16] The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of its laws.” U.S. Const. amend. XIV, § 1. The Constitution “neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting). But the guarantee of equal protection coexists with the practical necessity that most legislation must classify for some purpose or another. See Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
*19 [17] [18] To determine whether a piece of legislation violates the Equal Protection Clause, the court first looks to see whether the challenged law implicates a fundamental right. “When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388, 98 S.Ct. 673; see also Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (“We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.”). Here, the court finds that Amendment 3 interferes with the exercise of the Plaintiffs’ fundamental right to marry. As discussed above, Amendment 3 is therefore unconstitutional because the State has not shown that the law is narrowly tailored to meet a compelling governmental interest. But even if the court disregarded the impact of Amendment 3 on the Plaintiffs’ fundamental rights, the law would still fail for the reasons discussed below.
14

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
[19] [20] The Plaintiffs argue that Amendment 3 discriminates against them on the basis of their sex and sexual identity in violation of the Equal Protection Clause. When a state regulation adversely affects members of a certain class, but does not significantly interfere with the fundamental rights of the individuals in that class, courts first determine how closely they should scrutinize the challenged regulation. Courts must not simply defer to the State’s judgment when there is reason to suspect “prejudice against discrete and insular minorities ... which tends seriously to curtail the operation of those political processes ordinarily relied upon to protect minorities[.]” United States v. Carolene Prods. Co., 304 U.S. 144, 152–53 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).
[21] To decide whether a challenged state law impermissibly discriminates against members of a class in violation of the Equal Protection Clause, the Supreme Court has developed varying tiers of scrutiny that courts apply depending on what class of citizens is affected. “Classifications based on race or national origin” are considered highly suspect and “are given the most exacting scrutiny.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). On the other end of the spectrum, courts must uphold a legislative classification that does not target a suspect class “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631, 116 S.Ct. 1620. “Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.” Clark, 486 U.S. at 461, 108 S.Ct. 1910. Classifications receiving this intermediate level of scrutiny are quasi-suspect classifications that can be sustained only if they are “substantially related to an important governmental objective.” Id.
A. Heightened Scrutiny *20 The Plaintiffs assert three theories why the court should apply some form of heightened scrutiny to this case. While the court discusses each of these theories below, it finds that it need not apply heightened scrutiny here because Amendment 3 fails under even the most deferential level of review.

1. Sex Discrimination
[22] The Plaintiffs argue that the court should apply heightened scrutiny to Amendment 3 because it discriminates on the basis of an individual’s sex. As noted above, classifications based on sex can be sustained only where the government demonstrates that they are “substantially related” to an “important governmental objective[.]” United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (citation omitted); Concrete Works v. City of Denver, 36 F.3d 1513, 1519 (10th Cir.1994) (“Gender-based classifications ... are evaluated under the intermediate scrutiny rubric”).
[23] The State concedes that Amendment 3 involves sex-based classifications because it prohibits a man from marrying another man, but does not prohibit that man from marrying a woman. Nevertheless, the State argues that Amendment 3 does not discriminate on the basis of sex because its prohibition against same-sex marriage applies equally to both men and women. The Supreme Court rejected an analogous argument in Loving v. Virginia, 388 U.S. 1, 8–9, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In Loving, Virginia argued that its anti-miscegenation laws did not discriminate based on race because the prohibition against mixed-race marriage applied equally to both white and black citizens. Id. at 7–8, 87 S.Ct. 1817. The Court found that “the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” Id. at 9, 87 S.Ct. 1817. Applying the same logic, the court finds that the fact of equal application to both men and women does not immunize Utah’s Amendment 3 from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex.
But because the court finds that Amendment 3 fails rational basis review, it need not analyze why Utah is also unable to satisfy the more rigorous standard of demonstrating an “exceedingly persuasive” justification for its prohibition against same-sex marriage. Virginia, 518 U.S. at 533, 116 S.Ct. 2264.
2. Sexual Orientation as a Suspect Class
The Plaintiffs assert that, even if Amendment 3 does not
15

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
discriminate on the basis of sex, it is undisputed that the law discriminates on the basis of a person’s sexual orientation. The Plaintiffs maintain that gay men and lesbians as a class exhibit the “traditional indicia” that indicate they are especially at risk of discrimination. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The Plaintiffs therefore urge the court to hold that sexual orientation should be considered at least a quasi-suspect class, a holding which would require the court to apply heightened scrutiny to its analysis of Amendment 3.
*21 The court declines to address the Plaintiffs’ argument because it finds that it is bound by the Tenth Circuit’s discussion of this issue. In Price–Cornelison v. Brooks, the Tenth Circuit considered a claim that an undersheriff refused to enforce a protective order because the domestic violence victim was a lesbian. 524 F.3d 1103, 1105 (2008). The court held that the plaintiff’s claim did not “implicate a protected class, which would warrant heightened scrutiny.” Id. at 1113. In a footnote, the court supported its statement with a number of citations to cases from the Tenth Circuit and other Courts of Appeal. See id. at 1113 n. 9.
[24] The American Civil Liberties Union submitted an amicus brief arguing that the Tenth Circuit had no occasion to decide whether heightened scrutiny would be appropriate in Price–Cornelison because the court found that the discrimination at issue did not survive even rational basis review. Id. at 1114. As a result, the ACLU contends that the Tenth Circuit’s statement was dicta and not binding. The court is not persuaded by the ACLU’s argument. Even if the Tenth Circuit did not need to reach this question, the court’s extensive footnote in Price–Cornelison clearly indicates that the Tenth Circuit currently applies only rational basis review to classifications based on sexual orientation. Unless the Supreme Court or the Tenth Circuit hold differently, the court continues to follow this approach.
3. Animus
[25] The Plaintiffs contend that Amendment 3 is based on animus against gay and lesbian individuals and that the court should therefore apply a heightened level of scrutiny to the law. As discussed below, there is some support for the Plaintiffs’ argument in the Supreme Court opinions of Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134

L.Ed.2d 855 (1996) and United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). But because the Supreme Court has not yet delineated the contours of such an approach, this court will continue to apply the standard rational basis test.
In Romer, the Supreme Court considered an amendment to the Colorado Constitution that prohibited any department or agency of the State of Colorado or any Colorado municipality from adopting any law or regulation that would protect gay men, lesbians, or bisexuals from discrimination. 517 U.S. at 624, 116 S.Ct. 1620. The amendment not only prevented future attempts to establish these protections, but also repealed ordinances that had already been adopted by the cities of Denver, Boulder, and Aspen. Id. at 623–24, 116 S.Ct. 1620. The Supreme Court held that the amendment was unconstitutional because it violated the Equal Protection Clause. Id. at 635, 116 S.Ct. 1620. While the Court cited the rational basis test, the Court also stated that the Colorado law “confound[ed] this normal process of judicial review.” Id. at 633, 116 S.Ct. 1620. The Court then held that the law had no rational relation to a legitimate end for two reasons. First, the Court ruled that it was not “within our constitutional tradition” to enact a law “declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government[.]” Id. Second, the Court held that “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 634, 116 S.Ct. 1620. The Court’s analysis focused more on the purpose and effect of the Colorado amendment than on a consideration of the purported legitimate interests the State asserted in support of its law.
*22 The Supreme Court’s opinion in Windsor is similar. The Court did not analyze the legitimate interests cited by DOMA’s defenders as would be typical in a rational basis review. See Windsor, 133 S.Ct. at 2707 (Scalia, J., dissenting) (“[The majority] makes only a passing mention of the ‘arguments put forward’ by the Act’s defenders, and does not even trouble to paraphrase or describe them.”). Instead, the Court focused on the “design, purpose, and effect of DOMA,” id. at 2689, and held that the law’s “avowed purpose and practical effect” was “to impose a disadvantage, a separate status, and so a stigma” on same-sex couples that a state had permitted to wed. Id. at 2693. Because DOMA’s “principal purpose” was “to impose inequality,” id. at 2694, the Court ruled that the law deprived legally wed same-sex couples of “an essential part of the liberty protected by the Fifth
16

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
Amendment.” Id. at 2692.
In both Romer and Windsor, the Court cited the following statement from Louisville Gas & Elec. Co. v. Coleman: “Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” 277 U.S. 32, 37–38, 48 S.Ct. 423, 72 L.Ed. 770 (1928), quoted in Romer, 517 U.S. at 633, 116 S.Ct. 1620. Indeed, the Windsor Court held that “discriminations of an unusual character especially require careful consideration.” 133 S.Ct. at 2693 (emphasis added) (citation omitted). The Court’s emphasis on discriminations of an unusual character suggests that, when presented with an equal protection challenge, courts should first analyze the law’s design, purpose, and effect to determine whether the law is subject to “careful consideration.” If the principal purpose or effect of a law is to impose inequality, a court need not even consider whether the class of citizens that the law effects requires heightened scrutiny or a rational basis approach. Such laws are “not within our constitutional tradition,” Romer, 517 U.S. at 633, 116 S.Ct. 1620, and violate the Equal Protection Clause regardless of the class of citizens that bears the disabilities imposed by the law. If, on the other hand, the law merely distributes benefits unevenly, then the law is subject to heightened scrutiny only if the disadvantages imposed by that law are borne by a class of people that has a history of oppression and political powerlessness.
While this analysis appears to follow the Supreme Court’s reasoning in Romer and Windsor, the court is wary of adopting such an approach here in the absence of more explicit guidance. For instance, the Supreme Court has not elaborated how a court should determine whether a law imposes a discrimination of an unusual character. There are a number of reasons why Amendment 3 is similar to both DOMA and the Colorado amendment that the Supreme Court struck down in Windsor and Romer. First, the avowed purpose and practical effect of Amendment 3 is to deny the responsibilities and benefits of marriage to same-sex couples, which is another way of saying that the law imposes inequality. Indeed, Amendment 3 went beyond denying gay and lesbian individuals the right to marry and held that no domestic union could be given the same or substantially equivalent legal effect as marriage. This wording suggests that the imposition of inequality was not merely the law’s effect, but its goal.
*23 Second, Amendment 3 has an unusual character when viewed within the historical context in which it was

passed. Even though Utah already had statutory provisions that restricted marriage to opposite-sex couples, the State nevertheless passed a constitutional amendment to codify this prohibition. This action is only logical when viewed against the developments in Massachusetts, whose Supreme Court held in 2003 that the Massachusetts Constitution required the recognition of same-sex marriages. Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 948 (2003). The Utah legislature believed that a constitutional amendment was necessary to maintain Utah’s ban on same-sex marriage because of the possibility that a Utah court would adopt reasoning similar to the Massachusetts Supreme Court and hold that the Utah Constitution already protected an individual’s right to marry a same-sex partner. Amendment 3 thereby preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution.
But there are also reasons why Amendment 3 may be distinguishable from the laws the Supreme Court has previously held to be discriminations of an unusual character. Most notably, the Court has not articulated to what extent such a discrimination must be motivated by a “bare ... desire to harm a politically unpopular group.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). The Plaintiffs argue that Amendment 3 was motivated by animus and urge the court to consider the statements in the Voter Information Pamphlet that was provided to Utah voters. The Pamphlet includes arguments made by Amendment 3’s proponents that the amendment was necessary to “maintain[ ] public morality” and to ensure the continuation of “the ideal relationship where men, women and children thrive best.” (Utah Voter Information Pamphlet to General Election on Nov. 2, 2004, at 36, Dkt. 32–2.) The Plaintiffs submit that these statements demonstrate that Amendment 3 was adopted to further privately held moral views that same-sex couples are immoral and inferior to opposite-sex couples.
While the Plaintiffs argue that many Utah citizens voted for Amendment 3 out of a dislike of gay and lesbian individuals, the court finds that it is impossible to determine what was in the mind of each individual voter. Some citizens may have voted for Amendment 3 purely out of a belief that the amendment would protect the benefits of opposite-sex marriage. Of course, good intentions do not save a law if the law bears no rational connection to its stated legitimate interests, but this analysis is the test the court applies when it follows the Supreme Court’s rational basis jurisprudence. It is unclear
17

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
how a mix of animus and good intentions affects the determination of whether a law imposes a discrimination of such unusual character that it requires the court to give it careful consideration.
In any event, the theory of heightened scrutiny that the Plaintiffs advocate is not necessary to the court’s determination of Amendment 3’s constitutionality. The court has already held that Amendment 3 burdens the Plaintiffs’ fundamental right to marriage and is therefore subject to strict scrutiny. And, as discussed below, the court finds that Amendment 3 bears no rational relationship to any legitimate state interests and therefore fails rational basis review. It may be that some laws neither burden a fundamental right nor target a suspect class, but nevertheless impose a discrimination of such unusual character that a court must review a challenge to such a law with careful consideration. But the court’s analysis here does not hinge on that type of heightened review. The court therefore proceeds to apply the well-settled rational basis test to Amendment 3.
B. Rational Basis Review *24 [26] [27] [28] When a law creates a classification but does not target a suspect class or burden a fundamental right, the court presumes the law is valid and will uphold it so long as it rationally relates to some legitimate governmental purpose. See Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The court defers to the judgment of the legislature or the judgment of the people who have spoken through a referendum if there is at least a debatable question whether the underlying basis for the classification is rational. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). But even under the most deferential standard of review, the court must still “insist on knowing the relation between the classification adopted and the object to be obtained.” Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Lyng v. Int’l Union, 485 U.S. 360, 375, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) (“[L]egislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals.”). This search for a rational relationship “ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633, 116 S.Ct. 1620. As a result, a law must do more than disadvantage or otherwise harm a particular group to survive rational basis review. See U.S. Dep’t of Agric. v. Moreno, 413

U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).
[29] [30] The State emphasizes that the court must accept any legislative generalizations, “even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321, 113 S.Ct. 2637. The court will uphold a classification provided “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, 383, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). Based on this principle, the State argues that its extension of marriage benefits to opposite-sex couples promotes certain governmental interests such as responsible procreation and optimal child-rearing that would not be furthered if marriage benefits were extended to same-sex couples. But the State poses the wrong question. The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest. No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. Here, the challenged statute does not grant marriage benefits to opposite-sex couples. The effect of Amendment 3 is only to disallow same-sex couples from gaining access to these benefits. The court must therefore analyze whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying.
This focus on a rational connection between the State’s legitimate interests and the State’s exclusion of a group from benefits is well-supported in a number of Supreme Court decisions. For instance, the Court held in Johnson v. Robison that the rational basis test was satisfied by a congressional decision to exclude conscientious objectors from receiving veterans’ tax benefits because their lives had not been disrupted to the same extent as the lives of active service veterans. 415 U.S. at 381–82, 94 S.Ct. 1160. See also City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448–50, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (examining the city’s interest in denying housing for people with developmental disabilities, not in continuing to allow residence for others); Moreno, 413 U.S. at 535–38, 93 S.Ct. 2821 (testing the federal government’s interest in excluding unrelated households from food stamp benefits, not in maintaining food stamps for related households); Eisenstadt v. Baird, 405 U.S. 438, 448–53, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)
18

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
(requiring a state interest in the exclusion of unmarried couples from lawful access to contraception, not merely an interest in continuing to allow married couples access); Loving v. Virginia, 388 U.S. 1, 9–12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (examining whether Virginia’s exclusion of interracial couples from marriage violated equal protection principles independent of Virginia’s interest in providing marriage to same-race couples).
*25 For the reasons stated below, the court finds that the legitimate government interests that Utah cites are not rationally related to Utah’s prohibition of same-sex marriage.
1. Responsible Procreation
[31] The State argues that the exclusion of same-sex couples from marriage is justified based on an interest in promoting responsible procreation within marriage. According to the State, “[t]raditional marriage with its accompanying governmental benefits provides an incentive for opposite-sex couples to commit together to form [ ] a stable family in which their planned, and especially unplanned, biological children may be raised.” (Defs.’ Mot. Summ. J., at 28, Dkt. 33.) The Plaintiffs do not dispute the State’s assertion, but question how disallowing same-sex marriage has any effect on the percentage of opposite-sex couples that have children within a marriage. The State has presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry. Indeed, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. If there is any connection between same-sex marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests. Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship.
As a result, any relationship between Amendment 3 and the State’s interest in responsible procreation “is so attenuated as to render the distinction arbitrary or

irrational.” City of Cleburne, 473 U.S. at 446, 105 S.Ct. 3249; see also Perry v. Schwarzenegger, 704 F.Supp.2d 921, 972 (N.D.Cal.2010) ( “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriage.”). Accordingly, the court finds no rational connection between Amendment 3 and the state’s interest in encouraging its citizens to engage in responsible procreation.
2. Optimal Child–Rearing
[32] The State also asserts that prohibiting same-sex couples from marrying “promotes the ideal that children born within a state-sanctioned marriage will be raised by both a mother and father in a stable family unit.” (Defs.’ Mot. Summ. J., at 33, Dkt. 33.) Utah contends that the “gold standard” for family life is an intact, biological, married family. (Id. at 34.) By providing incentives for only opposite-sex marriage, Utah asserts that more children will be raised in this ideal setting. The Plaintiffs dispute the State’s argument that children do better when raised by opposite-sex parents than by same-sex parents. The Plaintiffs claim that the State’s position is demeaning not only to children of same-sex parents, but also to adopted children of opposite-sex parents, children of single parents, and other children living in families that do not meet the State’s “gold standard.” Both parties have cited numerous authorities to support their positions. To the extent the parties have created a factual dispute about the optimal environment for children, the court cannot resolve this dispute on motions for summary judgment. But the court need not engage in this debate because the State’s argument is unpersuasive for another reason. Once again, the State fails to demonstrate any rational link between its prohibition of same-sex marriage and its goal of having more children raised in the family structure the State wishes to promote.
*26 There is no reason to believe that Amendment 3 has any effect on the choices of couples to have or raise children, whether they are opposite-sex couples or same-sex couples. The State has presented no evidence that Amendment 3 furthers or restricts the ability of gay men and lesbians to adopt children, to have children through surrogacy or artificial insemination, or to take care of children that are biologically their own whom they may have had with an opposite-sex partner. Similarly, the
19

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
State has presented no evidence that opposite-sex couples will base their decisions about having children on the ability of same-sex couples to marry. To the extent the State wishes to see more children in opposite-sex families, its goals are tied to laws concerning adoption and surrogacy, not marriage.
If anything, the State’s prohibition of same-sex marriage detracts from the State’s goal of promoting optimal environments for children. The State does not contest the Plaintiffs’ assertion that roughly 3,000 children are currently being raised by same-sex couples in Utah. (Patterson Decl. ¶ 40, Dkt. 85.) These children are also worthy of the State’s protection, yet Amendment 3 harms them for the same reasons that the Supreme Court found that DOMA harmed the children of same-sex couples. Amendment 3 “humiliates [ ] thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S.Ct. at 2694. Amendment 3 “also brings financial harm to children of same-sex couples,” id. at 2695, because it denies the families of these children a panoply of benefits that the State and the federal government offer to families who are legally wed. Finally, Utah’s prohibition of same-sex marriage further injures the children of both opposite-sex and same-sex couples who themselves are gay or lesbian, and who will grow up with the knowledge that the State does not believe they are as capable of creating a family as their heterosexual friends.
For these reasons, Amendment 3 does not make it any more likely that children will be raised by opposite-sex parents. As a result, the court finds that there is no rational connection between Utah’s prohibition of same-sex marriage and its goal of fostering an ideal family environment for a child.
3. Proceeding with Caution
[33] The State contends that it has a legitimate interest in proceeding with caution when considering expanding marriage to encompass same-sex couples. But the State is not able to cite any evidence to justify its fears. The State’s argument is analogous to the City of Cleburne’s position in City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313

(1985). In that case, the City was concerned about issuing a permit for a home for the developmentally disadvantaged because of the fears of the property owners near the facility. Id. at 448, 105 S.Ct. 3249. The Supreme Court held that “mere negative attitudes, or fear, ... are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like.” Id. The State can plead an interest in proceeding with caution in almost any setting. If the court were to accept the State’s argument here, it would turn the rational basis analysis into a toothless and perfunctory review.
*27 In any event, the only evidence that either party submitted concerning the effect of same-sex marriage suggests that the State’s fears are unfounded. In an amicus brief submitted to the Ninth Circuit Court of Appeals by the District of Columbia and fourteen states that currently permit same-sex marriage, the states assert that the implementation of same-sex unions in their jurisdictions has not resulted in any decrease in opposite-sex marriage rates, any increase in divorce rates, or any increase in the number of nonmarital births. (Brief of State Amici in Sevcik v. Sandoval, at 24–28, Ex. 13 to Pls.’ Mem. in Opp’n, Dkt. 85–14.) In addition, the process of allowing same-sex marriage is straightforward and requires no change to state tax, divorce, or inheritance laws.
For these reasons, the court finds that proceeding with caution is not a legitimate state interest sufficient to survive rational basis review.
4. Preserving the Traditional Definition of Marriage
[34] As noted in the court’s discussion of fundamental rights, the State argues that preserving the traditional definition of marriage is itself a legitimate state interest. But tradition alone cannot form a rational basis for a law. Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack”); see also Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (“Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.”).
[35] The traditional view of marriage has in the past included certain views about race and gender roles that
20

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
were insufficient to uphold laws based on these views. See Lawrence v. Texas, 539 U.S. 558, 577–78, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack”) (citation omitted); Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 733–35, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (finding that government action based on stereotypes about women’s greater suitability or inclination to assume primary childcare responsibility was unconstitutional). And, as Justice Scalia has noted in dissent, “ ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601, 123 S.Ct. 2472 (Scalia, J., dissenting). While “[p]rivate biases may be outside the reach of the law, ... the law cannot, directly or indirectly, give them effect” at the expense of a disfavored group’s constitutional rights. Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984).
Although the State did not directly present an argument based on religious freedom, the court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage. If anything, the recognition of same-sex marriage expands religious freedom because some churches that have congregations in Utah desire to perform same-sex wedding ceremonies but are currently unable to do so. See Brief of Amici Curiae Bishops et al., at 8–15, United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (No. 12–307) (arguing that the inherent dignity of lesbian and gay individuals informs the theology of numerous religious beliefs, including the Unitarian Universalist Church and the United Church of Christ). By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.
*28 For these reasons, the court finds that the State’s interest in preserving its traditional definition of marriage is not sufficient to survive rational basis review.

don’t know.” (Hr’g Tr., at 94, 97, Dec. 4, 2013, Dkt. 88.) This argument is not persuasive. The State’s position appears to be based on an assumption that the availability of same-sex marriage will somehow cause opposite-sex couples to forego marriage. But the State has not presented any evidence that heterosexual individuals will be any less inclined to enter into an opposite-sex marriage simply because their gay and lesbian fellow citizens are able to enter into a same-sex union. Similarly, the State has not shown any effect of the availability of same-sex marriage on the number of children raised by either opposite-sex or same-sex partners.
In contrast to the State’s speculative concerns, the harm experienced by same-sex couples in Utah as a result of their inability to marry is undisputed. To apply the Supreme Court’s reasoning in Windsor, Amendment 3 “tells those couples, and all the world, that their otherwise valid [relationships] are unworthy of [state] recognition. This places same-sex couples in an unstable position of being in a second-tier [relationship]. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.” Windsor, 133 S.Ct. at 2694; see also id. at 2710 (Scalia, J., dissenting) (suggesting that the majority’s reasoning could be applied to the state-law context in precisely this way). And while Amendment 3 does not offer any additional protection to children being raised by opposite-sex couples, it demeans the children of same-sex couples who are told that their families are less worthy of protection than other families.
The Plaintiffs have presented a number of compelling arguments demonstrating that the court should be more skeptical of Amendment 3 than of typical legislation. The law differentiates on the basis of sex and closely resembles the type of law containing discrimination of an unusual character that the Supreme Court struck down in Romer and Windsor. But even without applying heightened scrutiny to Amendment 3, the court finds that the law discriminates on the basis of sexual identity without a rational reason to do so. Because Amendment 3 fails even rational basis review, the court finds that Utah’s prohibition on same-sex marriage violates the Plaintiffs’ right to equal protection under the law.

C. Summary of Rational Basis Analysis In its briefing and at oral argument, the State was unable to articulate a specific connection between its prohibition of same-sex marriage and any of its stated legitimate interests. At most, the State asserted: “We just simply

VI. Utah’s Duty to Recognize a Marriage Validly Performed in Another State Plaintiffs Karen Archer and Kate Call contend that their rights to due process and equal protection are further infringed by the State’s refusal to recognize their marriage
21

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)
that was validly performed in Iowa. The court’s disposition of the other issues in this lawsuit renders this question moot. Utah’s current laws violate the rights of same-sex couples who were married elsewhere not because they discriminate against a subsection of same-sex couples in Utah who were validly married in another state, but because they discriminate against all same-sex couples in Utah.
CONCLUSION
*29 In 1966, attorneys for the State of Virginia made the following arguments to the Supreme Court in support of Virginia’s law prohibiting interracial marriage: (1) “The Virginia statutes here under attack reflects [sic] a policy which has obtained in this Commonwealth for over two centuries and which still obtains in seventeen states”; (2) “Inasmuch as we have already noted the higher rate of divorce among the intermarried, is it not proper to ask, ‘Shall we then add to the number of children who become the victims of their intermarried parents?’ ”; (3) “[I]ntermarriage constitutes a threat to society”; and (4) “[U]nder the Constitution the regulation and control of marital and family relationships are reserved to the States.” Brief for Respondents at 47–52, Loving v. Virginia, 388 U.S. 1 (1967), 1967 WL 113931. These contentions are almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage. For the reasons discussed above, the court finds these arguments as unpersuasive as the Supreme Court found them fifty years ago. Anti-miscegenation laws in Virginia and elsewhere were designed to, and did, deprive a targeted minority of the full measure of human dignity and liberty by denying them the freedom to marry the partner of their choice. Utah’s Amendment 3 achieves the same result.
Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’

desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.
The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens. Moreover, the Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government. These rights would be meaningless if the Constitution did not also prevent the government from interfering with the intensely personal choices an individual makes when that person decides to make a solemn commitment to another human being. The Constitution therefore protects the choice of one’s partner for all citizens, regardless of their sexual identity.

ORDER
*30 The court GRANTS the Plaintiffs’ Motion for Summary Judgment (Dkt. 32) and DENIES the Defendants’ Motion for Summary Judgment (Dkt. 33). The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The court hereby enjoins the State from enforcing Sections 30–1–2 and 30–1–4.1 of the Utah Code and Article I, § 29 of the Utah Constitution to the extent these laws prohibit a person from marrying another person of the same sex.

1

Unless noted otherwise, the court will refer to

Amendment 3 in this opinion to mean both the Utah

constitutional amendment and the Utah statutory

provisions that prohibit same-sex marriage.

2

The Hawaii Supreme Court remanded the case to the

trial court to determine if the state could show that its

marriage statute was narrowly drawn to further

compelling state interests. Baehr, 852 P.2d at 68. The

trial court ruled that the government failed to make this

showing. Baehr v. Miike, No. 91–1394, 1996 WL

22

Kitchen v. Herbert, --- F.Supp.2d ---- (2013)

694235, at *22 (Haw.Cir.Ct. Dec. 3, 1996). The trial court’s decision was rendered moot after Hawaii passed a constitutional amendment that granted the Hawaii legislature the ability to reserve marriage for opposite-sex couples. Recently, the legislature reversed course and legalized same-sex marriage. Same-sex couples began marrying in Hawaii on December 2, 2013.

3

The Vermont legislature complied with this mandate by

creating a new legal status called a “civil union.” The

legislature later permitted same-sex marriage through a

statute that went into effect on September 1, 2009.

4

Six states have legalized same-sex marriage through

court decisions (California, Connecticut, Iowa,

Massachusetts, New Jersey, New Mexico); eight states

have passed same-sex marriage legislation (Delaware,

Hawaii, Illinois, Minnesota, New Hampshire, New

York, Rhode Island, Vermont); and three states have

legalized same-sex marriage through a popular vote

(Maine, Maryland, Washington). Same-sex marriage is

also legal in Washington, D.C.

5

As discussed below, Section 3 defined marriage as the

union between a man and a woman for purposes of federal law. The Court did not consider a challenge to Section 2, which allows states to refuse to recognize same-sex marriages validly performed in other states. See 28 U.S.C. § 1738C.

6

The Tenth Amendment makes explicit the division

between federal and state power: “The powers not

delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people.” U.S. Const. amend. X.

7

In 1948, the California Supreme Court became the first

court in the twentieth century to strike down an

anti-miscegenation statute. Perez v. Sharp, 32 Cal.2d

711, 198 P.2d 17 (1948); see also Loving, 388 U.S. at 6

n. 5, 87 S.Ct. 1817.

	  

23

 
 Kitchen v. Herbert, Not Reported in F.Supp.2d (2013)

2013 WL 6834634 Only the Westlaw citation is currently available.
United States District Court, D. Utah,
Central Division.
Derek KITCHEN, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood, and Kody Partridge, Plaintiffs, v.
Gary R. HERBERT, John Swallow, and Sherrie Swensen, Defendants.
No. 2:13–cv–217. | Dec. 23, 2013.
Attorneys and Law Firms
Peggy A. Tomsic, James E. Magleby, Jennifer F. Parrish, Magleby & Greenwood PC, Salt Lake City, UT, for Plaintiffs.
Philip S. Lott, Stanford Edward Purser, Utah Attorney General’s Office, Darcy M. Goddard, Ralph E. Chamness, Office of the District Attorney, Salt Lake City, UT, for Defendants.
Opinion
ORDER ON MOTION TO STAY
ROBERT J. SHELBY, District Judge.
*1 On December 20, 2013, the court granted summary judgment for the Plaintiffs in this lawsuit. (Order, Dec. 20, 2013, Dkt.90.) The court held that provisions in the Utah Code and the Utah Constitution1 that prohibited same-sex marriage (collectively, Amendment 3) were unconstitutional because they denied the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The court enjoined the State of Utah from enforcing Amendment 3 to the extent that it prohibited a person from marrying another person of the same sex. The court’s Order did not include a stay of its judgment as none had been requested by the State.

1

The court’s Order specifically mentioned Sections

30–1–2 and 30–1–4.1 of the Utah Code and Article I, §

29 of the Utah Constitution. The court’s Order also

applies to any other Utah laws that prohibit same-sex

couples from marrying.

The court had a telephone conversation with counsel from both parties a few hours after it issued its Order. The State represented to the court that same-sex couples had already begun marrying in the Salt Lake County Clerk’s Office and requested the court to stay its Order of its own accord. The court declined to issue a stay without a written record of the relief the State was requesting, and asked the State when it was planning to file a motion. The State was uncertain about its plans, so the court advised the State that it would immediately consider any written motion as soon as it was filed on the public docket. The State filed a Motion to Stay later that evening. The court ordered expedited briefing on the State’s Motion and set a hearing for 9:00 a.m. on December 23, 2013. The State requested in its Reply Brief that, if the court denied the State’s Motion to Stay, the court order a temporary stay of its Order to allow the Tenth Circuit to make its own determination about whether a stay should be issued.
Having carefully reviewed the parties’ briefing and oral arguments, and for the reasons discussed below, the court DENIES the State’s Motion to Stay and the State’s request for a temporary stay.

ANALYSIS
Rule 62(c) of the Federal Rules of Civil Procedure provides: “While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction ... on terms that secure the opposing party’s rights.” Fed.R.Civ.P. 62(c). The purpose of a stay is to preserve the status quo pending an appeal. See McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir.1996). When considering a motion to stay pending appeal, the court considers four factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2)
1

Kitchen v. Herbert, Not Reported in F.Supp.2d (2013)
whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The court analyzes each of these factors below.

I. The State Has Not Shown that It Is Likely to Succeed on Its Appeal *2 The State argues that the court should stay its judgment because the State is likely to succeed on appeal. But the majority of the State’s assertions in support of its argument are the same assertions the State made in its Motion for Summary Judgment. For the same reasons the court denied that motion, the court finds that the State has not submitted any evidence that it is likely to succeed on its appeal. The court granted summary judgment for the Plaintiffs on two separate grounds. First, the court found that Amendment 3 violated the Plaintiffs’ fundamental right to marry. Second, the court found that Utah’s prohibition on same-sex marriage was a violation of the Plaintiffs’ equal protection rights.2 The State can only succeed on its appeal if the Tenth Circuit rejects both of these holdings, and the State has not provided any reason to this court to suggest that the court overlooked crucial cases or other issues in its Order.

2

The court applied rational basis to its analysis of the

Plaintiffs’ equal protection claim, but noted that the

claim was also subject to heightened scrutiny because

Amendment 3 discriminated against the Plaintiffs on

the basis of their sex.

The only new argument the State makes to challenge the court’s reasoning is its assertion that the court misconstrued the case of United States v. Windsor, 133 S.Ct. 2675 (2013), because the court cited portions of the Honorable Antonin Scalia’s dissenting opinion. The court is not persuaded by the State’s argument. Although Justice Scalia clearly disagreed with the outcome in Windsor and believed the majority of the Supreme Court had decided the case wrongly, his opinion about the reasoning underlying Windsor and the possible effects of this reasoning in future cases is nevertheless perceptive

and compelling. The court therefore cited Justice Scalia’s dissent not as binding precedent, but as persuasive authority.
For these reasons, the court finds that the State has not carried its burden to make a strong showing that it is likely to succeed on appeal.
II. The State Has Not Shown that It Will Suffer Irreparable Harm The State argues that it will suffer irreparable harm for three reasons. First, the State contends that Utah has recognized only opposite-sex marriage for over one hundred years and that it must therefore be cautious about any changes to this approach. The court addressed this argument in its Order and found that neither the State’s asserted need to proceed with caution or its interest in preserving its previous laws about marriage were sufficient to withstand rational basis scrutiny.
Second, the State maintains: “[I]t is clear that a state suffers irreparable injury whenever an enactment of its people ... is enjoined.” Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir.1997) (citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The Plaintiffs point out that both cases cited by the State are inapposite because they involved statutes that the court considering the stay believed were valid. See Wilson, 122 F.3d at 719 (holding that a stay of the Ninth Circuit’s mandate would be “tantamount to extending the preliminary injunction entered by the district court ... which we have already held rests on an erroneous legal premise.”); New Motor Vehicle Bd., 434 U.S. at 1347 (“I am also of the opinion that a majority of the Court will likely reverse the judgment of the District court.... [T]he respondents for whom judgment is stayed are free to move the full Court to vacate a stay if they feel the Circuit Justice has miscalculated on [this] point.”). The court agrees with the Plaintiffs that these cases are distinguishable from the facts presented here. If the court were to follow the State’s argument, it should automatically grant a stay of its judgment whenever it invalidates a State law. The court is unaware of any such practice within the Tenth Circuit.
*3 Finally, the State argues that same-sex couples who marry pending an appeal to the Tenth Circuit face a cloud of uncertainty. It is the State’s position that it will seek to invalidate any same-sex marriages lawfully entered into
2

Kitchen v. Herbert, Not Reported in F.Supp.2d (2013)
during this time if the Tenth Circuit or Supreme Court later upholds Amendment 3. But under this prong of the court’s analysis, the court only considers the harm done to the State and not to the same-sex couples whose marriage arrangements may be subject to legal challenge. For the reasons stated in the court’s previous Order, the court finds that there is no harm to the State in allowing same-sex couples to marry.
III. Granting a Stay Will Irreparably Harm the Plaintiffs and Other Same–Sex Couples In contrast to the speculative harm faced by the State, there is no dispute that same-sex couples face harm by not being allowed to marry. In its Order, the court has already discussed these harms, which include harms to the partners in a same-sex couple and to members of their family. The State argues that the only harm caused by a stay would be a delay in the time that a same-sex couple would have to wait to marry in Utah or have their out-of-state marriage recognized. But some couples, including Plaintiffs Karen Archer and Kate Call, may be facing serious illness or other issues that do not allow them the luxury of waiting for such a delay.
IV. The Public Interest Will Be Harmed by a Stay Finally, the State contends that the public interest will be harmed if the court does not issue a stay because the public has an interest in deciding public policy issues such as the definition of marriage. The court agrees that the public has a strong interest in exercising its democratic powers. But as stated in its Order, the Constitution does not permit either a state legislature or the state’s citizens through a referendum to enact laws that violate constitutionally protected rights. And “while the public has an interest in the will of the voters being carried out ... the public has a more profound and

long-term interest in upholding an individual’s constitutional rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir.2012). The court therefore finds that the public interest factor weighs in favor of protecting the constitutional rights of Utah’s citizens.
V. Temporary Stay The State requests that, in the event the court denies its Motion to Stay, the court grant a temporary stay to allow the Tenth Circuit an opportunity to decide whether a stay is warranted. But the purpose of a temporary stay is to preserve the status quo. The court agrees with Defendant Sherrie Swenson in her official capacity as the Clerk of Salt Lake County that the status quo is currently that same-sex couples are allowed to marry in the State of Utah. As a result, the court would no longer be issuing a stay of its judgment, but an injunction enjoining county clerks in Utah from issuing marriage licenses to same-sex couples. Under these circumstances, the court finds that its appropriate role is to issue a ruling on the merits of the Defendants’ Motion to Stay as expeditiously as possible, thereby immediately allowing the Tenth Circuit to exercise jurisdiction over the merits of the case and the question of whether a stay should be issued pending appeal.
ORDER
*4 For the reasons stated above, the court hereby DENIES the Defendants’ Motion to Stay (Dkt.94).
SO ORDERED.
	  

3

 
 Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually,
Plaintiffs-Appellees,
v.
GARY R. HERBERT, in his official capacity of Governor of Utah; and BRIAN L. TARBET, in his official capacity as Acting Attorney General of Utah,
Defendants-Appellants.

No. 13-4178

PLAINTIFFS-APPELLEES’ OPPOSITION TO STATE DEFENDANTS-APPELLANTS’ EMERGENCY MOTIONS FOR STAY PENDING APPEAL AND TEMPORARY STAY
PENDING RESOLUTION OF MOTION TO STAY [DOC. #01019176532]

Plaintiffs-Appellees Derek Kitchen, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood, and Kody Partridge (collectively, “Plaintiffs”), by and through their counsel of record, Magleby & Greenwood, P.C., respectfully submit this Plaintiffs-Appellees’ Opposition to State Defendants-Appellants’ Emergency Motions for Stay Pending Appeal and Temporary Stay Pending Resolution of Motion to Stay [Doc. #01019176532] (“Motion”).
INTRODUCTION This Court should deny Appellants’ Motion for a stay. The District Court based its summary judgment order on extensive findings and conclusions regarding serious constitutional harms imposed by Utah Amendment 3—including violations of and interference with the fundamental right to marry and to equal protection of the laws. This Court has held that the

EQCF#12 Docket Reference [10135741]

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 2
infringement of an important constitutional right “for even minimal periods of time, unquestionably constitutes irreparable injury.” Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Moreover, as the District Court explained in its summary judgment order, “the harm experienced by same-sex couples in Utah as a result of their inability to marry is undisputed” in this matter. Mem. Decision and Order at 50, Kitchen v. Herbert, No. 13-217 (D. Utah Dec. 20, 2013) (Doc. No. 90) (attached as Addendum A to Appellants’ Motion) (hereinafter “Order”).1
The District Court based its thorough and well-reasoned opinion on the Supreme Court’s recent decision in United States v. Windsor, 133 S. Ct. 2675 (2013), as well as the Supreme Court’s prior decisions in Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996).
Appellants bear the burden of demonstrating the necessity for the stay through a four-part test, including (1) that Appellants have made “a strong showing” that they will likely succeed on the merits; (2) that Appellants will be irreparably harmed absent a stay; (3) that a stay will not “substantially injure” the other parties, and; (4) that a stay is in the public’s interest. Nken v. Holder, 556 U.S. 418, 425-26 (2009); see also Fed. R. App. P. 8; 10th Cir. R. 8.1. When demonstrating irreparable harm, more than a mere “possibility of irreparable injury” is required. Nken, 556 U.S. at 434-35 (quotation omitted). All of these elements strongly counsel against granting a stay in this case.
1 The District Court’s December 23, 2013, Order on Motion to Stay (“Order Denying Stay”) is attached hereto as Exhibit “A.” In addition, the transcript of the December 23, 2013, hearing on that motion is attached hereto as Exhibit “B.”

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 3
I. SUPREME COURT PRECEDENTS SUPPORT THE DISTRICT COURT’S DECISION AND APPE LLANTS CANNOT SHOW A ST RONG LIKELIHOOD OF SUCCESS ON APPEAL
Appellants do not make any relevant showing, much less the requisite “strong showing,” that they are likely to succeed on appeal. Nken, 556 U.S. at 434 (quotation omitted). The legal landscape has shifted as a result of the Supreme Court’s decision in Windsor. Even though Windsor does not decide the ultimate issues in this case—regarding whether Utah must let samesex couples marry or recognize their existing marriages—in light of the reasoning in Windsor, Utah cannot meet its burden of showing a strong likelihood of success on the merits.
A. Windsor Strongly Supports the District Court’s Judgment The District Court relied on Windsor’s reasoning, as well as principles from Lawrence and Romer, that strongly support the District Court’s ruling. First, Windsor affirmed that state marriage laws are “subject to constitutional guarantees” and must “respect the constitutional rights of persons.” Windsor, 133 S. Ct. at 2691. Second, citing the Court’s prior holding in Lawrence v. Texas, Windsor affirmed that the Constitution “protects the moral and sexual choices” of same-sex couples and held that their relationships, including the relationships of legally married same-sex couples, have the same constitutional protections as others and are entitled to be treated by the government with “equal dignity.” Id. at 2693-94. The District Court properly relied on this aspect of Windsor in explaining why gay and lesbian persons have the same fundamental right to marry as others. Third, Windsor affirmed that “discriminations of an unusual character,” including against gay people with respect to marriage, warrant careful consideration. The District Court carefully outlined how the challenged Utah laws, which like similar laws in many other states, were enacted expressly in order to exclude same-sex couples from marriage, are unusual. Order at 3940. In Windsor, the Court found that Section 3 of the federal Defense of Marriage Act was

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 4
motivated by animus, Windsor, 133 S. Ct. at 2693, even though it was supported by large majorities of Congress. Windsor makes clear that state laws enacted in quick succession to make sure that no gay couple could be married anywhere also warrant close scrutiny from the court.
Finally, Windsor held that laws enacted expressly in order to deny recognition to legally married same-sex couples inflict injuries of constitutional dimensions. Id. at 2694 (ruling that DOMA “demeans” same-sex couples, and “humiliates tens of thousands of children now being raised” by those couples). That holding applies directly to Utah’s refusal to recognize the lawful marriages of same-sex couples who married in other states. The harm inflicted by the government’s refusal to recognize an existing marital relationship is no less when it is a state, rather than the federal government, that denies recognition. And as the District Court correctly held, the Court’s analysis of the profoundly stigmatizing impact of laws that single out same-sex couples for discrimination with respect to marriage applies equally to Utah’s laws excluding same-sex couples from the ability to marry. Those laws stigmatize and harm these families, while providing no benefit to others.
B. Baker Does Not Bind This Court and Provides No Support for Appellants’ Contention that They Are Likely To Prevail
Appellants invoke the Supreme Court’s 1972 summary dismissal of the appeal for want of a substantial federal question in Baker v. Nelson, 191 N.W.2d 185 (1971), appeal dismissed w/o op., 409 U.S. 810 (1972), contending that Baker requires dismissal of Appellees’ challenge to Utah’s laws barring same-sex couples from marriage and refusing to recognize valid marriages entered into by same-sex couples in other states. But the Supreme Court has cautioned that, “‘when doctrinal developments indicate otherwise,’” the lower federal courts should not “‘adhere to the view that if the Court has branded a question as unsubstantial, it remains so.’” Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. BondholdersProtective Comm.

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 5
v. Port of N.Y. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)). “In the forty years after Baker, there
have been manifold changes to the Supreme Court’s equal protection jurisprudence.” Windsor,
699 F.3d at 178-79. As the Second Circuit has explained:
When Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court's vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect. The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake” actually lacked a rational basis. And, in 1971, the government could lawfully ‘demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.’”
Id. at 179 (citations omitted).
Baker did not and could not address how any of these doctrinal developments bear on
Appellees’ equal protection claims. Similarly, Baker could not and did not address how
Appellees’ substantive due process claims should be evaluated in light of the court’s intervening
decisions in Eisenstadt v. Baird, 405 U.S. 438 (1972), Roe v. Wade, 410 U.S. 113 (1973), Carey
v. Population Services Int'l, 431 U.S. 678 (1977), Zablocki v. Redhail, 434 U.S. 374 (1978);
Turner v. Safley, 482 U.S. 78 (1987), and Lawrence v. Texas, 539 U.S. 558 (2003).2
Further, Baker did not address whether a State violates equal protection and due process
by categorically excluding legally married same-sex couples from its longstanding practice and
law that a marriage valid where celebrated generally will be recognized as valid in Utah. The
Baker decision did not even consider this question, much less resolve it; therefore, Baker cannot
2 Several courts in addition to the Second Circuit have held that Baker is not controlling precedent. See Smelt v. County of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (“Doctrinal developments show it is not reasonable to conclude the questions presented in the Baker jurisdictional statement would still be viewed by the Supreme Court as “’unsubstantial.’”), vacated on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. 123, 138 (Bankr. W.D. Wash. 2004) (explaining that “Baker is not binding precedent” because of, among other things, “the possible impact of recent Supreme Court decisions, particularly as articulated in Lawrence”); Garden State Equality v. Dow, No. CIV.A. MER-L-1729-11, 2012 WL 540608, at *4 (N.J. Super. Ct. Feb. 21, 2012) (“The United States Supreme Court has decided several pertinent cases both contemporaneous with Baker and more recently which indicate that the issue of denying same-sex couples access to the institution of marriage would not be considered ‘unsubstantial’ today.”).

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 6
be deemed to resolve whether Utah must afford equal recognition to the valid out-of-state marriages of same-sex couples. Mandel v. Bradley, 432 U.S. 173, 176 (1979) (holding that a summary dismissal by the Supreme Court for want of a substantial federal question is dispositive only on “the precise issues presented and necessarily decided”). For all these reasons, Baker is irrelevant to Plaintiffs’ challenge to Utah’s Discriminatory Marriage Laws.
C. Appellees Are Likely To Prevail on the Merits Appellees have raised numerous constitutional claims; Appellants must show a strong likelihood that all of these claims will fail, which they cannot do. Appellees are highly likely to succeed on their claim that Utah’s law violates their fundamental right to marry. The United States Supreme Court has repeatedly held that the freedom to marry is a fundamental right deeply rooted in privacy, liberty, and freedom of intimate association. See, e.g., Loving, 388 U.S. at 12; Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Turner v. Safley, 482 U.S. 78, 95 (1987). Without deciding whether a state must permit same-sex couples to marry, the Supreme Court has held that individuals in same-sex relationships have the same liberty and privacy interest in their intimate relationships as other people. See Lawrence v. Texas, 539 U.S. 558, 577-78 (2003). In Windsor, the Supreme Court reaffirmed that principle and further held that legally married same-sex couples—like some of the Plaintiffs in this case—have a protected liberty interest in their marriages, and that the marriages of same-sex couples and opposite-sex couples must be treated with “equal dignity.” Windsor, 133 S. Ct. at 2693. These precedents strongly support the District Court’s determination that persons in same-sex relationships have the same stake as others in the underlying autonomy, privacy, and associational interests protected by the fundamental freedom to marry. When determining the

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 7
contours of a fundamental right, the Supreme Court has never held that the right can be limited based on who seeks to exercise it or on historical patterns of discrimination. The position urged by Appellants—that Appellees seek not the same right to marry as others, but a new right to “same-sex marriage—repeats the analytic error made by the Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986). In Bowers, the Court erroneously framed the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” Id. at 190. As the Supreme Court explained when it reversed Bowers in Lawrence, that statement “disclose[d] the Court’s own failure to appreciate the extent of the liberty at stake.” 539 U.S. at 567. Similarly here, there is no principled basis for framing the right at stake as a new right specific only to gay and lesbian persons. Appellees and others seek to exercise the same right to marry enjoyed by all other citizens of this nation, and the District Court properly held that the State of Utah lacks even a rational basis, much less a justification sufficient under the heightened scrutiny applied to laws that infringe upon a fundamental liberty, for categorically excluding same-sex couples from that right.
Appellees are also highly likely to succeed on their claims that Utah’s marriage ban violates their right to equal protection of the laws by discriminating based on sex and sexual orientation. Appellants argue that Utah’s marriage laws do not discriminate based on sex because they equally prevent both men and women from marrying a person of the same sex. A virtually identical argument was made and rejected in Loving v. Virginia, 388 U.S. 1, 8 (1967). Appellees seek to distinguish Loving by arguing that the law challenged there was held to be invalid because it was based on racial animosity. Motion at 14. But Loving expressly held that even if the law reflected “an even-handed state purpose,” it would still warrant heightened

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 8
review. 388 U.S. at 11 fn. 11. Similarly here, it is plain that Utah’s marriage laws embody a sex-based classification that warrants heightened review.
Utah’s marriage laws also warranted heightened review because they additionally discriminate based on sexual orientation. In Windsor, the Supreme Court noted that lower courts across the country are considering whether “heightened equal protection scrutiny should apply to laws that classify based on sexual orientation.” 133 S. Ct. at 2684-85. In addition, the Supreme Court let stand the Second Circuit’s holding that heightened scrutiny applies to such laws. Id. at 2684 (noting that the Second Circuit “applied heightened scrutiny to classifications based on sexual orientation”). Applying the criteria used by the Court in prior cases to determine when certain classifications warrant heightened scrutiny, many courts have now concluded that laws that discriminate against gay people must be subjected to careful review.3 In light of these precedents and the Supreme Court’s application of “careful consideration” in Windsor, Appellees are likely to succeed on their claim that Utah’s discrimination against same-sex couples must be subjected to heightened review.
Moreover, even under rational basis review, Appellees are likely to succeed on their equal protection claim because, as the District Court carefully demonstrated, and as numerous other courts have also found, there is no rational connection between Utah’s discriminatory marriage laws and the promotion of “responsible procreation” by opposite-sex couples. To the extent the benefits and protections of marriage encourage opposite-sex couples to marry before having children, those incentives existed long before those discriminatory laws were enacted,
3 See, e.g., Griego v. Oliver, No. 34,306, 2013 WL 6670704 at *18 (N.M. Dec. 19, 2013); Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009); Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 175, 957 A.2d 407, 432 (Conn. 2008) In re Marriage Cases, 43 Cal. 4th 757, 844, 847 (2008). See also Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012); Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012), cert. denied, 133 S. Ct. 2887 (U.S. 2013) (holding that review of DOMA “require[s] 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”).

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 9
and they would continue to exist if those laws were struck down. Cf. Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012) (“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.”); see also, e.g., Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012) (holding “responsible procreation” argument failed to “explain how denying benefits to same-sex couples will reinforce heterosexual marriage”); Varnum v. Brien, 763 N.W.2d 862, 901 (Iowa 2009) (“[T]he County fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation?”) (emphasis in original).
Appellants’ contention that they need not show that the exclusion of same-sex couples from marriage would advance the asserted state interest in responsible procreation has no merit. Appellants’ Mtn. at 26. Appellants rely on the statement in Johnson v. Robinson, 415 U.S. 361, 383 (1974) that classifications are acceptable if “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Id. at 25-26. But when state laws classify citizens differently, “the distinctions [the State] makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.” Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618 (1985). In other words, the State must justify its exclusion of samesex couples from the benefits of marriage, and not just its inclusion of opposite-sex couples. See, e.g., id. (while purpose of rewarding Vietnam Veterans was valid, equal protection was violated by exclusion from tax benefit of persons who did not reside in the state before a certain date); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448-50 (1985) (examining the city’s interest in excluding housing for people with developmental disabilities from general residential

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 10
zoning ordinance); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 535-38 (1973) (testing the federal government’s interest in excluding unrelated households from food stamp benefits, not in maintaining food stamps for related households); Eisenstadt v. Baird, 405 U.S. 438, 448-53 (1972) (requiring a state interest in excluding unmarried couples from lawful access to contraception, not merely an interest in allowing married couples access).
The fact that same-sex couples procreate only through planned conception or adoption does not provide a rational basis for excluding those couples and their children from the many protections marriage provides. Indeed, the asserted governmental interest in encouraging procreation and child-rearing to occur within the stable family context that marriage provides applies just as strongly to same-sex couples and their children as it does to opposite-sex couples. See Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 339 (D. Conn. 2012); In re Marriage Cases, 43 Cal.4th 757, 828, 183 P.3d 384, 433 (2008).
Furthermore, marriage in Utah as in other states is tied to a wide array of governmental programs and protections, many of which have nothing to do with child-rearing or procreation. The fact that same-sex couples do not engage in unplanned procreation does not provide a rational basis for excluding married same-sex couples from all of the other protections provided to married couples under Utah law. “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.” Romer v. Evans, 517 U.S. 620, 632 (1996). Here, as in Romer, “[t]he breadth of [Utah’s discriminatory marriage laws] is so far removed from these particular justifications that [it is] impossible to credit them.” Id. at 635. Appellants’ “responsible procreation” argument fails to provide even a rational justification for Utah’s categorical exclusion of an entire class of its citizens from marriage, let alone a justification

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 11
strong enough to overcome the laws’ “purpose and effect to disparage and to injure” those couples and their children, as Windsor requires. 133 S. Ct. at 2696.
In sum, the State Defendants have not made a strong showing that they are likely to succeed on the merits; to the contrary, Windsor and other Supreme Court precedents show that Appellee same-sex couples are likely to succeed in overturning Utah’s unconstitutional laws.
II. THE STATE DEFENDANTS HAVE NOT SHOWN THEY WILL SUFFER IRREPARABLE HARM
To obtain a stay, Appellants must show they will suffer more than a mere “possibility of irreparable injury” in the absence of the stay. Nken, 556 U.S. at 434-35 (quotation omitted). Here, Appellants assert only speculative harms that do not meet this test. Appellants assert that permitting same-sex couples to marry will create “uncertainty” and threaten “the democratic process in Utah.” But the democratic process is strengthened, not threatened, when courts vindicate the fundamental rights and liberties of citizens. Appellants argue that there is irreparable harm whenever an enactment of a state is enjoined. Motion at 4. In so doing, they cite to Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997), a Ninth Circuit case in which the court had found the challenged state measure to be constitutional. This is the opposite situation of this case, where this Court has ruled that the laws at issue violate the United States Constitution. The State does not suffer irreparable harm where the law that is enjoined is likely unconstitutional. Otherwise, any time a state were seeking a stay of an injunction of an unconstitutional law, the state would win. This would unduly tip the scale in favor of the government in any case challenging a government enactment, and against the constitutional rights of the citizenry.

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 12
Moreover, the only relevant “cloud of uncertainty” is the one hanging over Appellees and other same sex couples who, as a direct result of being denied the right to marry, are unable to financially and legally protect their families.
In fact, as the district court pointed out in its decision below, the immediate implementation of marriage equality will not harm the state in any way. Appellants can simply apply its existing marriage laws and administrative structures to same-sex couples. No new laws, procedures, or administrative requirements are necessary and the county clerks can simply issue marriage licenses as they do in the regular course of their business. See Order at 47-48 (“[T]he process of allowing same-sex marriage is straightforward and requires no change to state tax, divorce, or inheritance laws.”).
III. A STAY WOULD CAUSE SUBSTANTIAL AND I RREPARABLE HARM TO PLAINTIFFS-APPELLEES
Appellees have demonstrated, and the district court agreed, that Utah’s laws deprive them of due process and equal protection of the laws. As the Supreme Court, this Circuit, and many other courts have held, violations of constitutional rights, even for short periods of time, constitute irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (infringement of a constitutional right “for even minimal periods of time, unquestionably constitutes irreparable injury.”); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005).
In addition to irreparable constitutional harms, Appellees also suffer severe dignitary and practical harms right now that cannot be redressed by money damages or a subsequent court order. As Windsor affirmed, marriage is a status of “immense import.” Windsor, 133 S. Ct. at 2692. Utah’s laws barring same-sex couples from that status and denying recognition to samesex couples who are legally married subjects these families to severe and irreparable harms. In addition to subjecting same-sex couples and their children to profound legal and economic

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 13
vulnerability and harms, those laws stigmatize their relationships as inferior and unequal. In Windsor, the Court echoed principles set forth in Loving v. Virginia, 388 U.S. 1 (1967), forty-six years earlier, finding that discrimination against same-sex couples “demeans the couple, whose moral and sexual choices the Constitution protects.” Windsor, 133 S.Ct. at 2694 (citing Lawrence v. Texas, 539 U.S. 558 (2003)). The Court made clear that the discriminatory treatment “humiliates tens of thousands of children now being raised by same-sex couples” and that “the law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. Thus, as the District Court concluded below, “[i]n contrast to the State’s speculative concerns, the harm experienced by same-sex couples in Utah as a result of their inability to marry is undisputed. Order at 50.
Appellants attempt to minimize Appellees’ harms by arguing that a stay, “at most,” would lead only to a delay in Appellees’ ability to marry. Motion at 29. But cases across the country have already demonstrated that the inability to marry, or have an existing marriage recognized by the State, subjects gay and lesbian couples not only to catastrophic and permanent harm, but also to the intolerable threat of such harm. A district court in Illinois, for instance, granted a temporary restraining order to “medically critical plaintiffs” who, if not permitted to marry immediately, would “be deprived of significant federal rights and benefits.” Lee v. Orr, No. 13-CV-8719, 2013 WL 6490577, at *3 (N.D. Ill. Dec. 10, 2013). The stay of the Northern District of California’s ruling in Hollingsworth v. Perry pending appeal cost California couple Stacey Schuett and Lesly Taboada-Hall the opportunity to legally marry before Lesly’s death just six days before the Supreme Court issued its decision, leaving her partner’s status a widow in legal limbo. See Mary Callahan, Judge Tentatively Sides with Sebastopol Widow in Gay

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 14
Marriage Case, The Press Democrat, Sept. 17, 2013,
http://www.pressdemocrat.com/article/20130917/articles/130919583; Mary Callahan, Judge
Grants Legal Recognition to Sebastopol Women’s Marriage After Legal Battle, The Press
Democrat, September 18, 2013,
http://www.pressdemocrat.com/article/20130918/articles/130919524.4
In this case, Appellees Karen Archer and Kate Call face a similar fate if a stay is issued
pending resolution of this appeal. It is undisputed that Karen Call is suffering from a terminal
illness that may very well prevent her from surviving the instant appeal. Order at 5-6. Forcing
same-sex couples and their families to wait and hope for the best during the pendency of this
appeal imposes an intolerable and dehumanizing burden that no family should bear.5
4 See also Obergefell v. Wymyslo, Case No. 1:13-cv-501, Final Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction, slip op. at 46 (S.D. Ohio Dec. 23, 2013) (holding that incorrectly classifying plaintiffs as unmarried on a death certificate would result in severe and irreparable harm including denial of status as surviving spouse with its attendant benefits and inability to comply with decedent’s final wishes); Griego v. Oliver, Case No. D 202 CV 2013 2757, Declaratory Judgment, Injunction, and Peremptory Writ of Mandamus, slip. op. at *4 (N.M. Dist. Ct. Sep. 3, 2013) (holding denial of right to marry constitutes irreparable harm after terminally ill plaintiff moved for temporary restraining order allowing her to marry her partner before dying); Griego v. Oliver, Case No. D 202 CV 2013 2757, Plaintiffs Roper and Neuman's Motion for Temporary Restraining Order (N.M. Dist. Ct. Aug. 21, 2013) (detailing irreparable harms same-sex couple with terminally ill partner would suffer if unable to legally marry in New Mexico).
5 The State Defendants urge this Court to “follow the example” of the Ninth Circuit in the California Proposition 8 litigation by granting a stay pending appeal. Motion at 2. Yet as soon as the Supreme Court issued its decision in Windsor, the Ninth Circuit immediately lifted its stay. See Perry v. Brown, 725 F.3d 968, 970 (2013) (“The stay in the above matter is dissolved effective immediately.”). In addition, courts that have considered this issue since Windsor have refused to stay their rulings or to stay lower court rulings allowing same-sex couples to marry pending appeal. See, e.g., Garden State Equality v. Dow, __ A.3d. __, 2013 WL 5687193 (N.J. Oct. 18, 2013) (New Jersey Supreme Court order denying stay); Griego v. Oliver, Case No. D 202 CV 2013 2757, Declaratory Judgment, Injunction, and Peremptory Writ of Mandamus, slip. op. at 2-3 (N.M. Dist. Ct. Sep. 3, 2013) (ordering county clerks in Bernalillo and Sandoval Counties to begin issuing marriages licenses to qualified same-sex couples based on court’s determination that any exclusion of those couples from marriage was unconstitutional); Gray v. Orr, No. 1:13-cv-08449 (N.D. Ill. Dec. 5, 2013) (granting injunction permitting a same-sex couple to marry before the effective date of recently enacted Illinois statute eliminating the state’s ban on marriage by same-sex couples)

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 15
IV. THE PUBLIC INTEREST WILL BE HARMED BY A STAY “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012) (citations and quotations omitted); see also G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir.1994) (“While the public has an interest in the will of the voters being carried out ... the public has a more profound and long-term interest in upholding an individual's constitutional rights.”). Appellants argue that the public has a right to decide issues of societal important “through the democratic process,” and that there is a public interest in avoiding uncertainty. Yet none of these purported and undefined interests outweigh the public’s interest “in constitutional rights being upheld and in unconstitutional decisions by the government being remedied.” See Planned Parenthood of Arkansas & E. Oklahoma v. Cline, 910 F. Supp. 2d 1300, 1308 (W.D. Okla. 2012) (citing Awad, 670 F.3d at 1132)). Indeed, there is no “public interest” in depriving a class of Utah’s citizens of their constitutional rights while appellate review is pursued. See, e.g., Scott v. Roberts, 612 F.3d 1279, 1297 (11th Cir. 2010) (“[T]he public, when the state is a party asserting harm, has no interest in enforcing an unconstitutional law.”). This is true even where the laws at issue are the result of a popular vote. See Awad, 670 F.3d at 1131-32 (“Appellants argue that the balance weighs in their favor because Oklahoma voters have a strong interest in having their politically expressed will enacted, a will manifested by a large margin at the polls. But when the law that voters wish to enact is likely unconstitutional, their interests do not outweigh [Plaintiff’s] in having his constitutional rights protected”). The public has no interest in enforcing unconstitutional laws. Moreover, as recognized in Windsor and the lower court’s ruling, the public is harmed when families and children are deprived of the benefits and stability that that marriage provides:

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 16
If anything, the State’s prohibition of same-sex marriage detracts from the State’s goal of promoting optimal environments for children. The State does not contest the Plaintiffs’ assertion that roughly 3,000 children are currently being raised by same-sex couples in Utah. . . . These children are also worthy of the State’s protection[.]
Order at 46.
The public has no interest in enforcing unconstitutional laws or in relegating same-sex
couples and their families to a perpetual state of financial and legal vulnerability. The public
interest weighs decidedly in favor of denying a stay pending appeal.
CONCLUSION For the reasons discussed above, and in the Order Denying Stay, the Court should deny
the Appellants’ Motion. DATED this 23rd day of December, 2013.
______________________________ Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish
Attorneys for Plaintiffs-Appellees
MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101

Appellate Case: 13-4178 Document: 01019177089 Date Filed: 12/23/2013 Page: 17
CERTIFICATE OF SERVICE I hereby certify that I am employed by the law firm of MAGLEBY & GREENWOOD, P.C., 170 South Main Street, Suite 850, Salt Lake City, Utah 84101, and that a true and correct copy of the foregoing PLAINTIFFS-APPELLEES’ OPPOSITION TO STATE DEFENDANTSAPPELLANTS’ EMERGENCY MOTIONS FOR STAY PENDING APPEAL AND TEMPORARY STAY PENDING RESOLUTION OF MOTION TO STAY [DOC. #01019176532] was delivered to the following this 23rd day of December, 2013, via the Court’s CM/ECF system:

Philip S. Lott phillott@utah.gov Stanford E. Purser spurser@utah.gov UTAH ATTORNEY GENERAL 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah84114-0856
Attorneys for Defendants-Appellants Gary R. Herbert and Brian L. Tarbet

Ralph Chamness rchamness@slco.org Darcy Goddard dgoddard@slco.org SALT LAKE COUNTY DISTRICT ATTORNEYS 2001 South State Street, S3500 Salt Lake City, Utah 84190-1210
Attorneys for Defendant Sherrie Swensen

______________________________ Jennifer Fraser Parrish
Attorney for Plaintiffs-Appellees
MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101

Appellate Case: 13-4178 Document: 01019177090 Date Filed: 12/23/2013 Page: 1
Exhibit “A”

Case 2:13-cv-00217-RJS Document 105 Filed 12/23/13 Page 1 of 7 Appellate Case: 13-4178 Document: 01019177090 Date Filed: 12/23/2013 Page: 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

DEREK KITCHEN, MOUDI SBEITY, KAREN ARCHER, KATE CALL, LAURIE WOOD, and KODY PARTRIDGE,
Plaintiffs,
vs.
GARY R. HERBERT, JOHN SWALLOW, and SHERRIE SWENSEN,
Defendants.

ORDER ON MOTION TO STAY
Case No. 2:13-cv-217

On December 20, 2013, the court granted summary judgment for the Plaintiffs in this lawsuit. (Order, Dec. 20, 2013, Dkt. 90.) The court held that provisions in the Utah Code and the Utah Constitution1 that prohibited same-sex marriage (collectively, Amendment 3) were unconstitutional because they denied the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The court enjoined the State of Utah from enforcing Amendment 3 to the extent that it prohibited a person from marrying another person of the same sex. The court’s Order did not include a stay of its judgment as none had been requested by the State.
The court had a telephone conversation with counsel from both parties a few hours after it
1The court’s Order specifically mentioned Sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution. The court’s Order also applies to any other Utah laws that prohibit same-sex couples from marrying.

Case 2:13-cv-00217-RJS Document 105 Filed 12/23/13 Page 2 of 7 Appellate Case: 13-4178 Document: 01019177090 Date Filed: 12/23/2013 Page: 3
issued its Order. The State represented to the court that same-sex couples had already begun marrying in the Salt Lake County Clerk’s Office and requested the court to stay its Order of its own accord. The court declined to issue a stay without a written record of the relief the State was requesting, and asked the State when it was planning to file a motion. The State was uncertain about its plans, so the court advised the State that it would immediately consider any written motion as soon as it was filed on the public docket. The State filed a Motion to Stay later that evening. The court ordered expedited briefing on the State’s Motion and set a hearing for 9:00 a.m. on December 23, 2013. The State requested in its Reply Brief that, if the court denied the State’s Motion to Stay, the court order a temporary stay of its Order to allow the Tenth Circuit to make its own determination about whether a stay should be issued.
Having carefully reviewed the parties’ briefing and oral arguments, and for the reasons discussed below, the court DENIES the State’s Motion to Stay and the State’s request for a temporary stay.
ANALYSIS Rule 62(c) of the Federal Rules of Civil Procedure provides: “While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction . . . on terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c). The purpose of a stay is to preserve the status quo pending an appeal. See McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996). When considering a motion to stay pending appeal, the court considers four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties
2

Case 2:13-cv-00217-RJS Document 105 Filed 12/23/13 Page 3 of 7 Appellate Case: 13-4178 Document: 01019177090 Date Filed: 12/23/2013 Page: 4
interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The court analyzes each of these factors below. I. The State Has Not Shown that It Is Likely to Succeed on Its Appeal
The State argues that the court should stay its judgment because the State is likely to succeed on appeal. But the majority of the State’s assertions in support of its argument are the same assertions the State made in its Motion for Summary Judgment. For the same reasons the court denied that motion, the court finds that the State has not submitted any evidence that it is likely to succeed on its appeal. The court granted summary judgment for the Plaintiffs on two separate grounds. First, the court found that Amendment 3 violated the Plaintiffs’ fundamental right to marry. Second, the court found that Utah’s prohibition on same-sex marriage was a violation of the Plaintiffs’ equal protection rights.2 The State can only succeed on its appeal if the Tenth Circuit rejects both of these holdings, and the State has not provided any reason to this court to suggest that the court overlooked crucial cases or other issues in its Order.
The only new argument the State makes to challenge the court’s reasoning is its assertion that the court misconstrued the case of United States v. Windsor, 133 S. Ct. 2675 (2013), because the court cited portions of the Honorable Antonin Scalia’s dissenting opinion. The court is not persuaded by the State’s argument. Although Justice Scalia clearly disagreed with the outcome in Windsor and believed the majority of the Supreme Court had decided the case wrongly, his opinion about the reasoning underlying Windsor and the possible effects of this reasoning in future cases is nevertheless perceptive and compelling. The court therefore cited Justice Scalia’s
2The court applied rational basis to its analysis of the Plaintiffs’ equal protection claim, but noted that the claim was also subject to heightened scrutiny because Amendment 3 discriminated against the Plaintiffs on the basis of their sex.
3

Case 2:13-cv-00217-RJS Document 105 Filed 12/23/13 Page 4 of 7 Appellate Case: 13-4178 Document: 01019177090 Date Filed: 12/23/2013 Page: 5
dissent not as binding precedent, but as persuasive authority. For these reasons, the court finds that the State has not carried its burden to make a strong
showing that it is likely to succeed on appeal. II. The State Has Not Shown that It Will Suffer Irreparable Harm
The State argues that it will suffer irreparable harm for three reasons. First, the State contends that Utah has recognized only opposite-sex marriage for over one hundred years and that it must therefore be cautious about any changes to this approach. The court addressed this argument in its Order and found that neither the State’s asserted need to proceed with caution or its interest in preserving its previous laws about marriage were sufficient to withstand rational basis scrutiny.
Second, the State maintains: “[I]t is clear that a state suffers irreparable injury whenever an enactment of its people . . . is enjoined.” Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The Plaintiffs point out that both cases cited by the State are inapposite because they involved statutes that the court considering the stay believed were valid. See Wilson, 122 F.3d at 719 (holding that a stay of the Ninth Circuit’s mandate would be “tantamount to extending the preliminary injunction entered by the district court . . . which we have already held rests on an erroneous legal premise.”); New Motor Vehicle Bd., 434 U.S. at 1347 (“I am also of the opinion that a majority of the Court will likely reverse the judgment of the District court. . . . [T]he respondents for whom judgment is stayed are free to move the full Court to vacate a stay if they feel the Circuit Justice has miscalculated on [this] point.”). The court agrees with the Plaintiffs that these cases are distinguishable from the facts presented here.
4

Case 2:13-cv-00217-RJS Document 105 Filed 12/23/13 Page 5 of 7 Appellate Case: 13-4178 Document: 01019177090 Date Filed: 12/23/2013 Page: 6
If the court were to follow the State’s argument, it should automatically grant a stay of its judgment whenever it invalidates a State law. The court is unaware of any such practice within the Tenth Circuit.
Finally, the State argues that same-sex couples who marry pending an appeal to the Tenth Circuit face a cloud of uncertainty. It is the State’s position that it will seek to invalidate any same-sex marriages lawfully entered into during this time if the Tenth Circuit or Supreme Court later upholds Amendment 3. But under this prong of the court’s analysis, the court only considers the harm done to the State and not to the same-sex couples whose marriage arrangements may be subject to legal challenge. For the reasons stated in the court’s previous Order, the court finds that there is no harm to the State in allowing same-sex couples to marry. III. Granting a Stay Will Irreparably Harm the Plaintiffs and Other Same-Sex Couples
In contrast to the speculative harm faced by the State, there is no dispute that same-sex couples face harm by not being allowed to marry. In its Order, the court has already discussed these harms, which include harms to the partners in a same-sex couple and to members of their family. The State argues that the only harm caused by a stay would be a delay in the time that a same-sex couple would have to wait to marry in Utah or have their out-of-state marriage recognized. But some couples, including Plaintiffs Karen Archer and Kate Call, may be facing serious illness or other issues that do not allow them the luxury of waiting for such a delay. IV. The Public Interest Will Be Harmed by a Stay
Finally, the State contends that the public interest will be harmed if the court does not issue a stay because the public has an interest in deciding public policy issues such as the definition of marriage. The court agrees that the public has a strong interest in exercising its
5

Case 2:13-cv-00217-RJS Document 105 Filed 12/23/13 Page 6 of 7 Appellate Case: 13-4178 Document: 01019177090 Date Filed: 12/23/2013 Page: 7
democratic powers. But as stated in its Order, the Constitution does not permit either a state legislature or the state’s citizens through a referendum to enact laws that violate constitutionally protected rights. And “while the public has an interest in the will of the voters being carried out . . . the public has a more profound and long-term interest in upholding an individual’s constitutional rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012). The court therefore finds that the public interest factor weighs in favor of protecting the constitutional rights of Utah’s citizens. V. Temporary Stay
The State requests that, in the event the court denies its Motion to Stay, the court grant a temporary stay to allow the Tenth Circuit an opportunity to decide whether a stay is warranted. But the purpose of a temporary stay is to preserve the status quo. The court agrees with Defendant Sherrie Swenson in her official capacity as the Clerk of Salt Lake County that the status quo is currently that same-sex couples are allowed to marry in the State of Utah. As a result, the court would no longer be issuing a stay of its judgment, but an injunction enjoining county clerks in Utah from issuing marriage licenses to same-sex couples. Under these circumstances, the court finds that its appropriate role is to issue a ruling on the merits of the Defendants’ Motion to Stay as expeditiously as possible, thereby immediately allowing the Tenth Circuit to exercise jurisdiction over the merits of the case and the question of whether a stay should be issued pending appeal.
ORDER For the reasons stated above, the court hereby DENIES the Defendants’ Motion to Stay (Dkt. 94).
6

Case 2:13-cv-00217-RJS Document 105 Filed 12/23/13 Page 7 of 7 Appellate Case: 13-4178 Document: 01019177090 Date Filed: 12/23/2013 Page: 8
SO ORDERED this 23rd day of December, 2013. BY THE COURT: __________________________ ROBERT J. SHELBY United States District Judge
7

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 1
Exhibit “B”

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 2

1

(825)

2

3

4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

5

CENTRAL DIVISION

6 ______________________________________________________________

7 DEREK KITCHEN, INDIVIDUALLY;

MOUDI SBEITY, INDIVIDUALLY;

8 KAREN ARCHER, INDIVIDUALLY;

CASE NO. 2:13-CV-217

KATE CALL, INDIVIDUALLY;

9 LAURIE WOOD, INDIVIDUALLY; AND

KODY PARTRIDGE, INDIVIDUALLY.

10

PLAINTIFFS,

11

VS.

12

GARY R. HERBERT, IN HIS OFFICIAL

13 CAPACITY AS GOVERNOR OF UTAH;

SALT LAKE CITY, UTAH

JOHN SWALLOW, IN HIS OFFICIAL

DECEMBER 23, 2013

14 CAPACITY AS ATTORNEY GENERAL OF

UTAH; AND SHERRIE SWENSEN, IN HER

15 OFFICIAL CAPACITY AS CLERK OF

SALT LAKE COUNTY,

16

DEFENDANTS.

17

______________________________________________________________

18

DEFENDANTS' MOTION TO STAY PENDING APPEAL

19

BEFORE THE HONORABLE ROBERT J. SHELBY

UNITED STATES DISTRICT COURT JUDGE

20

21

22

23

24

25

1

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 3

1

2

3

4

5 APPEARANCES:
6

7

8 FOR THE PLAINTIFFS: 9 10 11

MAGLEBY & GREENWOOD BY: JENNIFER F. PARRISH, ESQ.
PEGGY A. TOMSIC, ESQ. 170 SOUTH MAIN STREET, SUITE 850 SALT LAKE CITY, UTAH 84101 (801) 359-9000

12 FOR DEFENDANTS HERBERT AND SWALLOW:

13

OFFICE OF THE UTAH ATTORNEY GENERAL

BY: BRIAN TARBET, ESQ.

14

PHILIP S. LOTT, ESQ.

STEVE WALKENHORST, ESQ.

15

160 EAST 300 SOUTH, SIXTH FLOOR

P.O. BOX 140856

16

SALT LAKE CITY, UTAH 84114

(801) 366-0100

17

FOR DEFENDANT SWENSEN:

18

SALT LAKE COUNTY DISTRICT ATTORNEY

19

BY: RALPH E. CHAMNESS, ESQ.

DARCY M. GODDARD, ESQ.

20

2001 SOUTH STATE STREET, ROOM S3700

SALT LAKE CITY, UTAH 84190

21

(385) 468-7700

22 COURT REPORTER: 23 24

RAYMOND P. FENLON 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634

25

2

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 4

1

P-R-O-C-E-E-D-I-N-G-S

2

(9:20 A.M.)

3

THE COURT: GOOD MORNING. LET ME TRY THAT AGAIN.

4 THERE WE GO. GOOD MORNING, EVERYONE. WE'LL GO ON THE RECORD

5 IN CASE NUMBER 2:13-CV-217. THIS IS KITCHEN, ET AL. VERSUS

6 HERBERT AND THE STATE OF UTAH, ET AL.

7

COUNSEL, WHY DON'T YOU TAKE A MOMENT AND MAKE YOUR

8 APPEARANCES, IF YOU WOULD, PLEASE.

9

MR. MAGLEBY: YOUR HONOR, PEGGY TOMSIC AND JENNIFER

10 FRASER PARRISH ON BEHALF OF THE PLAINTIFFS. I WOULD ASK THAT

11 THE COURT EXCUSE MR. MAGLEBY. HE IS OUT OF THE COUNTRY.

12

THE COURT: OF COURSE, THANK YOU.

13

MR. LOTT: YOUR HONOR, PHIL LOTT. TOGETHER WITH ME

14 HERE IS ACTING ATTORNEY GENERAL BRIAN TARBET, AND ALSO STEVE

15 WALKENHORST FROM THE ATTORNEY GENERAL'S OFFICE ON BEHALF OF

16 THE STATE DEFENDANTS.

17

THE COURT: THANK YOU.

18

MS. GODDARD: AND DARCY GODDARD AND RALPH CHAMNESS

19 ON BEHALF OF CO-DEFENDANT SALT LAKE COUNTY.

20

THE COURT: THANK YOU. GOOD MORNING TO ALL OF YOU.

21

THIS IS THE TIME SET FOR HEARING ON THE STATE DEFENDANTS'

22 MOTION FOR A STAY PENDING APPEAL. MY APOLOGIES TO KEEP -- FOR

23 KEEPING ALL OF YOU THIS MORNING. WE WERE NOTIFIED JUST BEFORE

24 WE WERE ABOUT TO COME OUT THAT THE TENTH CIRCUIT WAS ISSUING

25 AN ORDER IN RESPONSE TO A MOTION I THINK THE STATE RENEWED I

3

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 5

1 THINK AT 1:00 O'CLOCK THIS MORNING. WE RECEIVED THE 10TH

2 CIRCUIT'S WRITTEN RULING MOMENTS AGO. I JUST WANTED TO ENSURE

3 WE HAD AN OPPORTUNITY TO REVIEW IT BEFORE WE CAME OUT SO THAT

4 I WASN'T DOING SOMETHING IN VIOLATION OF THE TENTH CIRCUIT'S

5 DIRECTIVES.

6

COUNSEL, A COPY OF THAT ORDER WAS PROVIDED TO BOTH OF

7 YOU, IS THAT CORRECT?

8

MR. LOTT: YES.

9

MS. TOMSIC: YES, YOUR HONOR.

10

THE COURT: ALL RIGHT. WELL, MR. LOTT, I'VE

11 REVIEWED THE SUBMISSIONS ON BEHALF OF ALL THE PARTIES. IT'S

12 THE STATE'S MOTION. THE FLOOR IS YOURS.

13

MR. LOTT: THANK YOU.

14

THE COURT: THANK YOU.

15

MR. LOTT: MAY IT PLEASE THE COURT. THIS COURT'S

16 DECISION IS NOT THE FINAL WORD ON WHETHER UTAH'S MARRIAGE LAWS

17 ARE CONSTITUTIONAL. IT HAS ALWAYS BEEN UNDERSTOOD THAT BOTH

18 SIDES INTENDED TO APPEAL ONCE THE DECISION WAS ENTERED IN THIS

19 CASE. HERE THE COURT HAS DECIDED TO IMPOSE ITS OWN VIEW OF

20 MARRIAGE ON UTAH REGARDLESS OF THE FACT THAT THE PEOPLE OF

21 UTAH HAVE DEMOCRATICALLY CHOSEN THE TRADITIONAL MAN/WOMAN

22 DEFINITION OF MARRIAGE.

23

CONSIDERING HOW IMPORTANT AND HOW HOTLY CONTESTED THE

24 DEFINITION OF MARRIAGE IS, AND THE FACT THAT NEITHER THE TENTH

25 CIRCUIT COURT OF APPEALS OR THE SUPREME COURT HAS ISSUED A

4

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 6

1 FINAL RULING ON THIS ISSUE, THE NEED FOR A STAY IS READILY

2 APPARENT. UTAH SHOULD BE ALLOWED TO FOLLOW ITS DEMOCRATICALLY

3 CHOSEN DEFINITION OF MARRIAGE UNTIL AN APPELLATE COURT OF LAST

4 RESORT HAS DECLARED OTHERWISE.

5

THE STATE DEFENDANTS ARE ENTITLED TO HAVE THIS COURT --

6 THIS COURT'S DECISION REVIEWED BY A HIGHER COURT BEFORE IT

7 GOES INTO EFFECT. A MORE ORDERLY APPROACH THAN THE CURRENT

8 FRENZY IS TO MAINTAIN THE STATUS QUO WHILE HIGHER COURTS

9 REVIEW THE DECISION. NOT ALLOWING THE STAY PREJUDICES THE

10 STATE'S RIGHT TO HAVE APPELLATE REVIEW BEFORE THIS COURT'S

11 DECISION GOES INTO EFFECT.

12

THE COURT: WHAT IS THE STATUS QUO NOW, MR. LOTT?

13 THE STATE -- THERE WAS NO MOTION AND NO REQUEST BY EITHER

14 PARTY IN ADVANCE OF THE COURT'S RULING IN THIS CASE THAT THE

15 RULING WOULD EVER BE STAYED PENDING AN APPEAL. IT WAS CLEAR

16 THAT MY RULING WAS GOING TO BE APPEALED. HAVING NO MOTION

17 BEFORE ME, THERE WAS NOTHING FOR THE COURT TO ADDRESS.

18

IN THE INTERIM, OF COURSE, PEOPLE BEGAN ACTING IN

19 RELIANCE ON THE COURT'S ORDER. THE QUESTION IS WE NOW HAVE IN

20 FRONT OF US A MOTION FOR STAY AND WE'RE ADDRESSING IT, BUT

21 WHAT IS -- WHAT IS THE STATUS QUO?

22

MR. LOTT: WELL, TYPICALLY OUR -- OUR VIEW AND

23 UNDERSTANDING IN A CASE LIKE THIS, TYPICALLY A CASE WOULD STAY

24 SUA SPONTE BEFORE ENTERING AN ORDER THAT'S GOING TO GO INTO

25 EFFECT. AND WE WERE FRANKLY SURPRISED BOTH WHEN THE ORAL

5

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 7

1 REQUEST THAT WAS MADE LAST WEEK WHEN THE STATE WAS NOTIFIED OF

2 THE RULING WAS NOT CONSIDERED, AND THAT WE DO HAVE A WINDOW OF

3 PERIOD -- A WINDOW OF TIME HERE THAT HAS RESULTED.

4

THE COURT: WELL, LET'S -- SO LET'S BE -- LET'S MAKE

5 SURE OUR RECORD ABOUT THAT IS COMPLETE SO THAT BOTH PARTIES

6 HAVE THE BENEFIT OF THAT IN YOUR APPEAL PROCESS. AND SO WE

7 WERE -- WE WERE CONTACTED BY YOUR OFFICE ABOUT ROUGHLY TWO OR

8 THREE HOURS AFTER THE ORDER ISSUED, I BELIEVE, AND WERE ASKED

9 ABOUT -- I THOUGHT WITH TWO QUESTIONS THAT SOUNDED PROCEDURAL,

10 AND FOR THAT REASON WE DIDN'T HAVE A COURT REPORTER ON HAND.

11 I WASN'T NOTIFIED THAT THE STATE WAS INTENDING TO MAKE ANY

12 MOTION AT THAT TIME. WE WERE ASKED WHETHER THE COURT INTENDED

13 TO ISSUE A SUA SPONTE STAY, WHICH OF COURSE I WASN'T

14 CONTEMPLATING AND NEITHER PARTY HAD REQUESTED ANYTHING AT THAT

15 POINT.

16

AND I NOTIFIED THE STATE AND THE PLAINTIFFS, WE ENSURED

17 BOTH PARTIES WERE ON THE LINE, NOTIFIED EVERYONE THAT WE WOULD

18 TAKE UP IN URGENT FASHION ANY MOTION THAT ANYONE WISHED TO

19 FILE BUT THAT WE WOULD REQUIRE IT BE IN WRITING SO THAT IT

20 IDENTIFIED THE RELIEF SOUGHT, THE BASIS FOR THAT RELIEF, AND

21 THE STANDARD THAT APPLIES, AND AFFORD THE PLAINTIFFS AN

22 OPPORTUNITY TO RESPOND IN EXPEDITED FASHION. I DON'T KNOW IF

23 YOU WISH TO ADD ANYTHING MORE TO COMPLETE THE RECORD ON THAT

24 ISSUE BEFORE WE FINISH TODAY, AND I'LL ALLOW MS. TOMSIC TO AS

25 WELL IF SHE'D LIKE.

6

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 8

1

BUT IN THE COURT'S VIEW, WE'RE HERE NOW ADDRESSING THE

2 COURT'S STAY. WE HAVE A COMPLICATED STATE OF AFFAIRS. WE

3 HAVE PEOPLE STANDING IN CLERKS' OFFICES RIGHT NOW. WE HAVE

4 THE TENTH CIRCUIT WAITING TO SEE HOW THIS COURT RULES. AND I

5 GUESS THE QUESTION IN MY MIND IS HOW DO WE PROCEED?

6

MR. LOTT: WE'RE HERE TO CONVINCE THE COURT TO ENTER

7 STAY.

8

THE COURT: IF I CONCLUDE, APPLYING THE FACTORS THAT

9 I'M REQUIRED TO ANALYZE IN DETERMINING WHETHER THE STAY SHOULD

10 ISSUE, AND I DETERMINE THAT THE STATE HASN'T SATISFIED ITS

11 BURDEN AS THE MOVING PARTY, IS THERE SOME INTERMEDIATE LEVEL

12 OF RELIEF THAT THE STATE REQUESTS THAT I ENTER?

13

MR. LOTT: YES.

14

THE COURT: WHAT IS THAT?

15

MR. LOTT: IN OUR REPLY MEMORANDUM, THE COURT

16 PROBABLY NOTICED AT THE END, WE'VE REQUESTED AS AN ALTERNATIVE

17 IF THE COURT DOES NOT ENTER A STAY, A PERMANENT STAY, THAT THE

18 COURT ENTER AT LEAST A STAY UNTIL THE TENTH CIRCUIT COURT OF

19 APPEALS MAKES A FINAL DECISION ON THE MOTION BEFORE IT. THE

20 MOTION THAT WAS BEFORE THE TENTH CIRCUIT TO THIS POINT IN TIME

21 WAS AN EMERGENCY MOTION REQUESTING A STAY PENDING THIS COURT'S

22 RULING. THAT'S BEEN DENIED, AS WE'RE AWARE NOW, WITHOUT

23 PREJUDICE, AND THE STATE IS GOING TO REFILE AFTER THIS HEARING

24 TODAY DEPENDING ON WHAT THE COURT'S DECISION IS.

25

SO AS AN ALTERNATIVE RELIEF, IF THE COURT DECIDES NOT TO

7

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 9

1 ISSUE A PERMANENT STAY PENDING APPEAL, THE ALTERNATIVE REQUEST

2 IS THAT THE COURT AT LEAST GRANT A STAY UNTIL THE TENTH

3 CIRCUIT DECIDES. AND THERE IS PRECEDENCE FOR THAT. JUDGE

4 WALKER IN THE PROPOSITION 8 PERRY CASE GRANTED THAT RELIEF.

5

AS THE COURT HAS NOTED, THERE IS A CLOUD OF UNCERTAINTY

6 OVER SAME-SEX MARRIAGES THAT HAVE CURRENTLY TAKEN PLACE. THE

7 COURT CAN STOP THIS CHAOTIC SITUATION FROM CONTINUING BY

8 PLACE -- BY STAYING ITS ORDER PENDING APPEAL.

9

NO ONE WINS, NOT UTAH, NOT THE PLAINTIFFS, NOR ANY

10 SAME-SEX COUPLES IF UTAH'S MARRIAGE LAWS ARE CHANGED BACK AND

11 FORTH DURING THE PENDENCY OF THIS PROCEEDING, DEPENDING ON

12 WHICH COURT IS REVIEWING THE QUESTION. ON SUCH AN IMPORTANT

13 SOCIAL ISSUE, THE STATUS QUO SHOULD REMAIN INTACT OF -- OF A

14 STAY BEING IN PLACE UNTIL -- UNTIL THERE'S BEEN APPELLATE

15 REVIEW.

16

THERE'S GREAT IRONY IN THE FACT THAT THE -- TO BE ALLOWED

17 TO BECOME A STATE UTAH WAS COMPELLED BY THE FEDERAL GOVERNMENT

18 TO ADOPT A DEFINITION OF MARRIAGE AS BEING A UNION OF ONE MAN

19 AND ONE WOMAN, AND NOW THE FEDERAL DISTRICT COURT HAS IMPOSED

20 UPON UTAH TO ABANDON THAT TRADITIONAL DEFINITION AND HAS

21 ORDERED UTAH TO CHANGE ITS DEFINITION OF MARRIAGE TO INCLUDE

22 SAME-SEX MARRIAGE.

23

THE COURT DECISION REACHES CONCLUSIONS UNPRECEDENTED IN

24 THE TENTH CIRCUIT AND SUPREME COURT. NEITHER THE TENTH

25 CIRCUIT NOR THE SUPREME COURT HAS EVER HELD THAT THE STATE IS

8

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 10

1 CONSTITUTIONALLY PROHIBITED FROM DEFINING MARRIAGE AS ONLY THE

2 UNION BETWEEN A MAN AND A WOMAN. NEITHER THE TENTH CIRCUIT

3 NOR THE SUPREME COURT HAS EVER HELD THAT THE FUNDAMENTAL RIGHT

4 TO MARRY INCLUDES SAME-SEX MARRIAGE. NEITHER THE TENTH

5 CIRCUIT OR THE SUPREME COURT HAS EVER HELD THAT A

6 TRADITIONAL -- THE TRADITIONAL DEFINITION OF MARRIAGE SOMEHOW

7 CONSTITUTES GENDER DISCRIMINATION. AND NEITHER THE TENTH

8 CIRCUIT NOR THE SUPREME COURT HAS EVER HELD THAT TRADITIONAL

9 MAN/WOMAN MARRIAGE IS IRRATIONAL, DISCRIMINATORY OR

10 UNCONSTITUTIONAL.

11

IN FACT THE TWO MOST RECENT FEDERAL DISTRICT COURTS THAT

12 HAVE CONSIDERED AND RULED ON THE CONSTITUTIONALITY OF THE

13 STATE'S LAWS LIMITING MARRIAGE TO THE LEGAL UNION BETWEEN A

14 MAN AND A WOMAN, BOTH IN THE NINTH CIRCUIT, HAVE REACHED A

15 DIFFERENT CONCLUSION THAN THIS COURT HAS REACHED. THOSE ARE

16 THE JACKSON CASE FROM HAWAII AND THE SEVCICK CASE FROM NEVADA.

17

MOREOVER, THE ONLY FEDERAL CIRCUIT COURT TO SQUARELY RULE

18 ON THIS ISSUE, THE EIGHTH CIRCUIT, HAS UPHELD THE

19 CONSTITUTIONALITY OF THE TRADITIONAL DEFINITION OF MARRIAGE.

20 THAT'S THE BRUNING CASE.

21

AND THOSE DECISIONS DO NOT STAND ALONE. AS CITED IN THE

22 STATE DEFENDANTS' COURT PLEADINGS, MANY OTHER COURTS HAVE

23 CONCLUDED THAT THE OPPOSITE-SEX DEFINITION OF MARRIAGE

24 RATIONALLY SERVES SOCIETY'S INTERESTS IN REGULATING SEXUAL

25 RELATIONSHIPS BETWEEN MEN AND WOMEN SO THAT THE UNIQUE

9

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 11

1 PROCREATIVE CAPACITY OF THOSE RELATIONSHIPS BENEFITS RATHER

2 THAN HARMS SOCIETY.

3

INSTEAD OF CONSIDERING AND BASING ITS DECISION ON THE

4 MAJORITY OPINION IN THE WINDSOR CASE, THE DISTRICT COURT

5 QUOTES AND CITES AS CONCLUSIVE AUTHORITY THE CYNICAL

6 OBSERVATION AND DISSENT OF JUSTICE SCALIA OF WHAT THE SUPREME

7 COURT'S VIEW WOULD BE IF CONSIDERING STATE MARRIAGE LAWS. THE

8 DISTRICT COURT'S APPROACH IS IN EFFECT TO JUMP THE GUN AND TO

9 JOIN JUSTICE SCALIA IN SPECULATING ABOUT WHAT THE SUPREME

10 COURT WOULD DO BEFORE IT HAS ACTUALLY RULED ON THIS ISSUE.

11

THE COURT: WELL, THAT'S WHAT I WAS CALLED TO DO IN

12 THIS CASE, WAS I NOT, TO DETERMINE AS BEST I COULD WHAT

13 GUIDANCE THE SUPREME COURT WAS PROVIDING ON THIS ISSUE? AND

14 WHILE I WISH I WASN'T THE FIRST COURT IN THE NATION TO WEIGH

15 IN ON THAT AFTER THE WINDSOR DECISION, ISN'T THE -- ISN'T THE

16 DISSENTING VIEW MAYBE THE -- MAYBE THE BEST PLACE TO LOOK TO

17 SEE WHAT THE PEOPLE ON THE LOSING SIDE OF THAT PROPOSITION

18 BEFORE THE SUPREME COURT THOUGHT THE EFFECT OF THE COURT'S

19 RULING WAS?

20

IT'S NOT CLEAR, OF COURSE, IN THE WINDSOR DECISION, AS

21 WE'VE DISCUSSED AT ORAL ARGUMENT. THE WINDSOR COURT DIDN'T

22 ANSWER THIS QUESTION. SO WE'RE FORCED TO READ THE TEA LEAVES

23 AND DO THE BEST WE CAN WITH THAT DECISION. THE STATE CLEARLY

24 DISAGREES. BUT MY -- MY DECISION DOESN'T REST ON THE MINORITY

25 OPINION OF JUSTICE SCALIA OR THE DISSENTS IN THE WINDSOR CASE.

10

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 12

1 IT'S NOT A BAD PLACE TO LOOK TO SEE WHAT THE SUPREME COURT

2 JUSTICES THEMSELVES THINK OF THE DECISION THOUGH, IS IT?

3

MR. LOTT: THE STATE IS RESPECTFULLY TRYING TO POINT

4 OUT THE LIKELIHOOD OF SUCCESS ON APPEAL.

5

THE COURT: OKAY, VERY GOOD, THANK YOU. GO AHEAD.

6

MR. LOTT: THE DISTRICT COURT CONCEDES IN ITS

7 OPINION THAT, QUOTE, THE COURT'S ROLE IS TO NOT DEFINE

8 MARRIAGE, AN EXERCISE THAT WOULD BE IMPROPER GIVEN THE STATE'S

9 PRIMARY AUTHORITY IN THIS REALM. AND THAT'S IN THE OPINION AT

10 PAGE 16, THE COURT'S DECISION AT PAGE 16. AND THEN THE COURT

11 PROCEEDS TO DO EXACTLY THAT, TO REDEFINE MARRIAGE IN SUCH A

12 BROAD WAY TO ENCOMPASS SAME-SEX MARRIAGE.

13

THE DISTRICT COURT CITES TO AND APPLIES SUPREME COURT

14 PRECEDENT RECOGNIZING THE FUNDAMENTAL RIGHT TO MARRY --

15 RECOGNIZING A FUNDAMENTAL RIGHT TO MARRY IN CASES THAT

16 UNIVERSALLY INVOLVE MARRIAGE BETWEEN A MAN AND A WOMAN AS

17 THOUGH THE GENDER OF THE SPOUSE IS IRRELEVANT. THE COURT

18 CONCLUDES, QUOTE, THE PLAINTIFFS HERE DO NOT SEEK A NEW RIGHT

19 TO SAME-SEX MARRIAGE, BUT INSTEAD ASK THE COURT TO HOLD THAT

20 THE STATE CANNOT PROHIBIT THEM FROM EXERCISING THEIR EXISTING

21 RIGHT TO MARRY ON ACCOUNT OF THE SEX OF THEIR CHOSEN PARTNER,

22 AT PAGE 28 OF THE DECISION.

23

BY REFUSING TO RECOGNIZE THE TRADITIONAL MAN/WOMAN

24 MARRIAGE, THAT TRADITIONAL MAN/WOMAN MARRIAGE IS MATERIALLY

25 DIFFERENT FROM SAME-SEX MARRIAGE, THE COURT SIDESTEPS THE

11

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 13

1 HOLDING OF THE WASHINGTON V. GLUCKSBERG CASE THAT SETS FORTH

2 THE ESTABLISHED METHOD OF SUBSTANTIVE DUE PROCESS ANALYSIS.

3

THE COURT STATES, QUOTE, BECAUSE THE RIGHT TO MARRY HAS

4 ALREADY BEEN ESTABLISHED AS A FUNDAMENTAL RIGHT, THE COURT

5 FINDS THAT THE GLUCKSBERG ANALYSIS IS INAPPLICABLE HERE, AT

6 PAGE 29.

7

IN THE DISTRICT COURT'S VIEW, TRADITION AND HISTORY ARE

8 INSUFFICIENT REASONS TO DENY FUNDAMENTAL RIGHTS TO AN

9 INDIVIDUAL. THE COURT'S REFUSAL TO CONSIDER HISTORY AND

10 TRADITION, HOWEVER, GO FAR BEYOND WHAT EVEN THE LAWRENCE CASE

11 CONTEMPLATED. THERE IN THE LAWRENCE CASE THE COURT STATED, WE

12 THINK OUR LAWS AND TRADITIONS OF THE PAST HALF-CENTURY ARE OF

13 THE MOST RELEVANCE HERE.

14

THE RELEVANT HISTORY AND TRADITION REGARDING SAME-SEX

15 MARRIAGE IS MUCH SHORTER THAN THAT, MUCH SHORTER THAN THE PAST

16 HALF-CENTURY. NO STATE PERMITTED SAME-SEX MARRIAGE UNTIL

17 2003. EVEN ABROAD, NO FOREIGN NATION ALLOWED SAME-SEX

18 MARRIAGE UNTIL THE NETHERLANDS IN 2000. IN THE LAST TEN YEARS

19 OF THIS NATION'S 237 YEAR HISTORY, ONLY A MINORITY OF STATES

20 HAVE PERMITTED SAME-SEX MARRIAGE, AND NEARLY ALL OF THOSE HAVE

21 DONE SO BY THE DEMOCRATIC PROCESS RATHER THAN BY JUDICIAL

22 DECREE.

23

THE DISTRICT COURT IN THE STATE'S OPINION HAS FAILED TO

24 EXERCISE THE UTMOST CARE THAT'S REQUIRED BY THE GLUCKSBERG

25 ANALYSIS. THE DISTRICT COURT'S DECISION PLACES THE MATTER

12

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 14

1 OUTSIDE THE ARENA OF PUBLIC DEBATE AND LEGISLATIVE ACTION AND

2 CONSTITUTES POLICY PREFERENCE OF THE COURT. THE DISTRICT

3 COURT'S DECISION IS A FUNDAMENTAL SHIFT AWAY FROM SOCIETY'S

4 UNDERSTANDING OF WHAT MARRIAGE IS AND OVERRIDES THE DEMOCRATIC

5 VOICE OF THE PEOPLE OF UTAH.

6

THE DISTRICT COURT ALSO HELD THAT MAN/WOMAN -- THE

7 MAN/WOMAN DEFINITION OF MARRIAGE IS GENDER DISCRIMINATION, AND

8 THE STATE OBVIOUSLY DISAGREES WITH THAT CONCLUSION.

9

THE COURT ALSO WRONGLY CONCLUDED THAT UTAH'S MARRIAGE

10 LAWS DO NOT EVEN SATISFY THE MINIMAL REQUIREMENTS OF A

11 RATIONAL BASIS TEST. NUMEROUS STATE AND FEDERAL COURT'S AT

12 THE TRIAL AND APPELLATE COURT LEVELS HAVE REACHED THE OPPOSITE

13 CONCLUSION. THESE COURTS HAVE FOUND THAT THE TRADITIONAL

14 DEFINITION OF MARRIAGE IS RATIONALLY RELATED TO LEGITIMACY AND

15 INTEREST, AND EVEN THAT MAN/WOMAN MARRIAGE PROMOTES THE

16 STATE'S COMPELLING INTEREST IN THE CARE AND WELL-BEING OF

17 CHILDREN BY FACILITATING RESPONSIBLE PROCREATION AND THE IDEAL

18 MODE OF CHILD REARING.

19

THE VERY FACT THAT SO MANY OTHER COURTS HAVE FOUND THE

20 TRADITIONAL DEFINITION OF MARRIAGE TO SATISFY RATIONAL BASIS

21 REVIEW IS REASON ENOUGH TO CONCLUDE THAT THE STATE DEFENDANTS

22 HAVE SUFFICIENT LIKELIHOOD OF SUCCESS ON APPEAL TO WARRANT

23 STAY PENDING APPEAL.

24

THE STATE ALSO BELIEVES THE COURT DID NOT PROPERLY FRAME

25 THE ISSUE BEFORE IT. THE SUPREME COURT HAS HELD THAT A

13

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 15

1 CLASSIFICATION SUBJECT TO RATIONAL BASIS REVIEW WILL BE UPHELD

2 WHEN THE INCLUSION OF ONE GROUP PROMOTES A LEGITIMATE

3 GOVERNMENTAL PURPOSE AND THE ADDITION OF OTHER GROUPS WOULD

4 NOT. THAT'S THE JOHNSON V. ROBISON CASE.

5

AND AS THE FEDERAL DISTRICT COURT IN THE HAWAII JACKSON

6 CASE EXPLAINED, THE STATE IS NOT REQUIRED TO SHOW THAT DENYING

7 MARRIAGE TO SAME-SEX COUPLES IS NECESSARY TO PROMOTE THE

8 STATE'S INTEREST OR THAT SAME-SEX COUPLES WILL SUFFER NO HARM

9 BY AN OPPOSITE-SEX DEFINITION OF MARRIAGE. RATHER, THE

10 RELEVANT QUESTION IS WHETHER AN OPPOSITE-SEX DEFINITION OF

11 MARRIAGE FURTHERS A LEGITIMATE INTEREST THAT WOULD NOT BE

12 FURTHERED, OR FURTHERED TO THE SAME DEGREE, BY ALLOWING

13 SAME-SEX COUPLES TO MARRY.

14

THE DISTRICT COURT'S DECISION CONSTITUTES A FUNDAMENTAL

15 SHIFT AWAY FROM SOCIETY'S UNDERSTANDING OF WHAT MARRIAGE IS.

16 FOR OVER 100 YEARS UTAH HAS ALWAYS ADHERED TO A DEFINITION OF

17 MARRIAGE AS THE UNION OF A MAN AND A WOMAN AND HAS NEVER

18 RECOGNIZED A MARRIAGE OF ANY OTHER KIND. AND UTAH DOES NOT

19 STAND ALONE, A MAJORITY OF STATES ADHERE TO THE SAME

20 DEFINITION OF MARRIAGE.

21

AS THE SUPREME COURT RECOGNIZED IN GLUCKSBERG, EXTENDING

22 CONSTITUTIONAL PROTECTION TO AN ASSERTED RIGHT OR LIBERTY

23 INTEREST TO A GREAT EXTENT PLACES THE MATTER OUTSIDE THE ARENA

24 OF PUBLIC DEBATE AND LEGISLATIVE ACTION. THE DISTRICT COURT'S

25 DECISION HAS TAKEN THE IMPORTANT PUBLIC POLICY QUESTION OF

14

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 16

1 SAME-SEX MARRIAGE AWAY FROM THE PEOPLE OF UTAH AND AS SUCH

2 CONSTITUTES A THREAT OF IRREPARABLE HARM TO THE DEMOCRATIC

3 PROCESS IN UTAH.

4

WE CITED TO THE COURT THE CASE OF COALITION FOR ECONOMIC

5 EQUITY VERSUS WILSON, WHICH HELD IT IS CLEAR THAT A STATE

6 SUFFERS IRREPARABLE INJURY WHENEVER AN ENACTMENT OF ITS PEOPLE

7 IS ENJOINED.

8

THE COURT: IS THERE ALSO IRREPARABLE HARM WHEN

9 CITIZENS ARE DEPRIVED CONSTITUTIONAL RIGHTS? I MEAN I

10 UNDERSTAND THE STATE BELIEVES THAT I INCORRECTLY CONCLUDED

11 THAT THERE'S A FUNDAMENTAL RIGHT TO MARRY, AND WE WON'T KNOW

12 UNTIL ANOTHER COURT ABOVE ME SOUNDS IN ON THAT ISSUE. BUT

13 HAVING CONCLUDED THAT THAT'S A CONSTITUTIONAL RIGHT THAT ALL

14 OF THE CITIZENS OF THE STATE ENJOY, IS THERE IRREPARABLE HARM

15 TO CITIZENS WHEN WE DISALLOW THEM FROM ENJOYING A

16 CONSTITUTIONAL RIGHT?

17

MR. LOTT: AS A GENERAL PROPOSITION I WOULD AGREE,

18 BUT AS THE COURT KNOWS, THE STATE DISAGREES WHETHER THERE'S A

19 CONSTITUTIONAL RIGHT TO SAME-SEX MARRIAGE.

20

THE CASE CITED ALSO --

21

THE COURT: HOW DO WE -- HOW DO WE RESOLVE THAT

22 QUESTION IN YOUR MIND? HAVING CONCLUDED THAT THERE ARE

23 CONSTITUTIONAL RIGHTS AT ISSUE HERE, AND THAT THOSE RIGHTS ARE

24 BEING DEPRIVED -- SOME CITIZENS OF THE STATE ARE BEING

25 DEPRIVED OF THE ENJOYMENT OF THOSE RIGHTS, AND THEN THE

15

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 17

1 STATE'S INTEREST IN, AS YOU FRAMED IT, ALLOWING THE STATE TO

2 MAKE THESE POLICY CONSIDERATIONS THROUGH THE VOICE OF THE

3 ELECTORATE, HOW DO WE BALANCE THOSE HARMS IN YOUR VIEW IN

4 DETERMINING WHETHER A STAY SHOULD ISSUE?

5

MR. LOTT: WE'VE POINTED OUT TO THE COURT THAT FROM

6 OUR PERSPECTIVE THE HARM TO THE PLAINTIFFS AND ALSO TO

7 SAME-SEX COUPLES THAT WISH TO MARRY IF ANYTHING WOULD BE

8 DELAYED. THE APPELLATE COURT IS GOING TO REVIEW THIS COURT'S

9 DECISION, AND IF THE APPEAL IS UPHELD, IT PUTS THOSE THAT HAVE

10 ENTERED INTO A MARRIAGE INTO AN UNCOMFORTABLE SITUATION WHERE

11 THEIR MARRIAGES MOST LIKELY WOULD BE VOID. AND THE WAY TO

12 AVOID THAT SITUATION FROM OCCURRING TO THE BENEFIT OF EVERYONE

13 IS TO ENTER A STAY.

14

THE COURT: IT'S THE STATE'S POSITION THAT IF MY

15 RULING IS REVERSED ON APPEAL, THAT ANY MARRIAGE -- ANY

16 MARRIAGE LICENSES THAT ISSUED IN THE INTERIM WOULD BE VOID; IS

17 THAT RIGHT?

18

MR. LOTT: THAT'S CORRECT.

19

THE COURT: SO THEN WHAT IS THE HARM TO THE STATE?

20 WHAT IS THE IRREPARABLE INJURY TO THE STATE IF THE EFFECT OF A

21 REVERSAL IS THAT THERE WERE NO VALID MARRIAGES PERFORMED?

22

MR. LOTT: WELL, THE STATE IS CONCERNED WITH ALL OF

23 ITS CITIZENS, NOT ONLY THOSE THAT -- THAT DO NOT WANT TO HAVE

24 SAME-SEX MARRIAGE. IT ALSO INCLUDES AN INTEREST TO THOSE THAT

25 WANT SAME-SEX MARRIAGE, AND THERE'S A CONCERN FOR THOSE

16

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 18

1 CITIZENS OF THE STATE AS WELL. THAT'S -- THAT'S APART FROM

2 THE CONCERN THE STATE HAS IN HAVING ITS DEMOCRATIC VOICE

3 RECOGNIZED.

4

I WAS GOING TO QUOTE JUSTICE RENQUIST. HE STATED, IT

5 ALSO SEEMS TO ME THAT ANYTIME A STATE IS ENJOINED BY A COURT

6 FROM EFFECTUATING STATUTES ENACTED BY REPRESENTATIVES OF ITS

7 PEOPLE, IT SUFFERS A FORM OF IRREPARABLE INJURY.

8

THE STATE, AS WE POINTED OUT, ALSO FACES ADMINISTRATIVE

9 BURDENS DURING THIS PERIOD OF UNCERTAINTY. AND ALSO ACTIONS

10 THAT WOULD BE TAKEN IN RELIANCE OF MARRIAGE BY THIRD PARTIES,

11 BY EMPLOYERS, CREDITORS, OTHERS, ALSO ARE GOING TO BE

12 IMPACTED. THE PUBLIC ALSO HAS AN INTEREST IN CERTAINTY AND IN

13 ORDER AND IN AVOIDING UNNECESSARY EXPENDITURES.

14

WE HAVE ALSO IN OUR REPLY THAT WE FILED THIS MORNING HAVE

15 ADDRESSED THE -- THE THREE CASES THAT THE PLAINTIFFS CITE POST

16 WINDSOR, AND WE HAVE DISTINGUISHED THOSE CASES. THE NEW

17 JERSEY CASE, OF COURSE, WAS BASED UPON NEW JERSEY STATE LAW.

18 IT'S A CASE THAT ARISES FROM NEW JERSEY STATE COURTS APPLYING

19 THEIR STANDARDS FOR A STAY, WHICH ARE NOT THE SAME AS IN

20 FEDERAL COURT.

21

AND THE NEW MEXICO CASE INVOLVES A STATE WHERE THERE IS

22 NO LAW EITHER PROHIBITING OR GRANTING THE RIGHT OF SAME-SEX

23 MARRIAGE, SO IT'S AN ENTIRELY DIFFERENT SITUATION. AND THE

24 CASE FROM ILLINOIS INVOLVES A STATE STATUTE THAT HAS ALREADY

25 ADOPTED SAME-SEX MARRIAGE, AND A COUPLE FILING THE MOTION

17

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 19

1 SIMPLY WANTED TO MARRY BEFORE THE STATUTE WENT INTO EFFECT,

2 WHICH IS VERY DIFFERENT FROM THE SITUATION WE FACE HERE.

3

THE MOST APPLICABLE EXAMPLE THAT WE WOULD URGE THE COURT

4 TO FOLLOW IS THAT OF THE NINTH CIRCUIT AND THE DISTRICT COURT

5 IN PERRY V. BROWN PROPOSITION 8 CASE. JUDGE WALKER GRANTED A

6 STAY PENDING A DECISION FROM THE NINTH CIRCUIT AS TO WHETHER

7 THEY WERE GOING TO GRANT A STAY, AND THE NINTH CIRCUIT DID

8 GRANT A STAY IN THAT CASE, IN THE PROPOSITION 8 LITIGATION.

9 SO WE WOULD URGE THE COURT TO FOLLOW THAT EXAMPLE.

10

THANK YOU, YOUR HONOR.

11

THE COURT: THANK YOU, MR. LOTT. WE'LL HEAR AGAIN

12 FROM YOU BEFORE WE CONCLUDE.

13

MS. TOMSIC.

14

MS. TOMSIC: GOOD MORNING, YOUR HONOR.

15

THE COURT: GOOD MORNING.

16

MS. TOMSIC: YOUR HONOR, FUNDAMENTALLY THE STATE IS

17 ASKING YOU TO LOOK BACKWARD AND TO NOT -- DENY PLAINTIFFS'

18 MOTION FOR SUMMARY JUDGMENT AND TO GRANT THEIR MOTION ON

19 EXACTLY THE SAME MERIT GROUNDS THAT THEY ARGUED IN TENS OF

20 PAGES OF BRIEFING DURING ALMOST FOUR HOURS OF ORAL ARGUMENT

21 THAT THIS COURT SOUNDLY AND DEFINITIVELY REJECTED IN A

22 WELL-REASONED FOUNDATIONALLY SUPPORTED DECISION.

23

THERE IS NOT A SINGLE ISSUE FROM A LEGAL STANDPOINT THAT

24 THE STATE HAS RAISED, EITHER IN ITS WRITTEN PAPERS BEFORE THIS

25 COURT OR IN THE ORAL ARGUMENT THAT HAS NOW BEEN MADE BEFORE

18

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 20

1 YOUR HONOR, THAT WOULD JUSTIFY THIS COURT FINDING THAT THERE

2 IS NOT ONLY A LIKELIHOOD OF YOUR HONOR BEING REVERSED ON

3 APPEAL, BUT THE STANDARD IN THIS DISTRICT REQUIRES THE STATE

4 TO SHOW, MAKE A STRONG SHOWING -- IT IS NOT JUST A SHOWING, AS

5 IT IS IN A PRELIMINARY INJUNCTION, IT IS A STRONG SHOWING.

6 AND THERE IS GOOD REASON FOR THAT REQUIREMENT, YOUR HONOR.

7

THE REASON THAT REQUIREMENT EXISTS, AND PARTICULARLY IN A

8 SITUATION LIKE THIS CASE, IS THAT WE HAVE A DECISION FROM YOUR

9 HONOR THAT IS NOT A PRELIMINARY INJUNCTION. WE HAVE A

10 DECISION FROM THIS COURT THAT ACTUALLY SORT OF FLOWED OUT OF

11 THE STATE ASKING THIS COURT TO DECIDE THE ISSUE ON SUMMARY

12 JUDGMENT. IT IS A DECISION THAT IS PREDICATED ON BOTH SIDES

13 HAVING AN AMPLE OPPORTUNITY TO PUT THEIR BEST FOOT FORWARD, TO

14 PUT THEIR BEST ARGUMENTS, THEIR BEST UNDISPUTED FACTS, THEIR

15 BEST LEGAL AUTHORITIES, AND WE DID THAT, YOUR HONOR.

16

STARTING ON OCTOBER 22ND -- OR EXCUSE ME -- 11TH OF THIS

17 YEAR WE PROVIDED YOUR HONOR MAYBE WITH WE COULD CALL IT A

18 MOUNTAIN OF PAPER, WHERE EACH SIDE HAD A FULL OPPORTUNITY TO

19 ADVISE YOUR HONOR OF HOW WE BELIEVED YOU SHOULD RULE. AND

20 THEN ON NOVEMBER 22ND WE INUNDATED YOU WITH FURTHER PAGES

21 EXPLAINING WHY THE OTHER SIDE'S POSITION WAS FUNDAMENTALLY

22 WRONG AS A MATTER OF LAW. AND THEN YOUR HONOR GAVE US AMPLE

23 TIME. YOU SAID THIS IS AN IMPORTANT ISSUE. I AM GIVING BOTH

24 SIDES ALL THE TIME THEY NEED IN ORAL ARGUMENT TO HELP ME MAKE

25 THE RIGHT DECISION.

19

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 21

1

AFTER THAT PROCESS, WHERE YOU HAVE A PERMANENT

2 DECISION -- OR INJUNCTION DECLARING WHAT THE LAW IN UTAH IS, A

3 COURT REQUIRES MORE THAN SIMPLY A REARGUMENT OF THE POSITIONS

4 THAT WERE REJECTED AND DENIED IN THE FIRST PLACE. IF THAT

5 WERE NOT TRUE, EVERY TIME A COURT ISSUES AN ORDER, A

6 PRELIMINARY INJUNCTION OR A PERMANENT INJUNCTION, THE STATE

7 COULD SIMPLY MEET THAT MANDATORY REQUIREMENT BY REARGUING THE

8 SAME POSITIONS AND SAYING, GOSH, YOUR HONOR, YOU GOT IT WRONG

9 THE FIRST TIME. YOU BETTER AGREE WITH US NOW. WELL, THAT'S

10 NOT THE STANDARD AND THE STATE HASN'T MET IT.

11

AND WHAT'S IMPORTANT, YOUR HONOR, IS WHAT YOU'VE HEARD IN

12 THEIR PAPERS, AND WHAT YOU HEARD MR. LOTT SAY IN THIS CASE IS,

13 GEE, JUDGE, YOU OUGHT TO GRANT US A MOTION TO STAY BECAUSE

14 THIS IS A DIVISIVE AND IMPORTANT PUBLIC STATE INTEREST.

15

THE COURT: THAT SEEMS A REASONABLE REQUEST, DOES

16 IT?

17

MS. TOMSIC: ABSOLUTELY NOT, YOUR HONOR. IF THAT

18 WERE THE STANDARD, THE TENTH CIRCUIT WOULD NOT HAVE MANDATORY

19 FACTORS. THE IMPORTANCE OF THAT PARTICULAR FACTOR IS ONLY ONE

20 OF THEM, AND THAT IS THE PUBLIC'S INTEREST. AND, YOUR HONOR,

21 YOU KNOW BETTER THAN I DO BECAUSE YOU WROTE YOUR DECISION, ONE

22 OF THE ARGUMENTS THAT THE STATE MADE AS TO WHY YOU SHOULD DENY

23 OUR MOTION FOR SUMMARY JUDGMENT AND GRANT THEIRS IS PROCEEDING

24 WITH CAUTION. THIS IS JUST A REPACKAGED AND DRESSED-UP

25 VERSION OF THAT ARGUMENT, WHICH YOU HAVE ALREADY REJECTED.

20

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 22

1

AND TO SAY, JUDGE, THIS IS IMPORTANT SO LET'S IGNORE ALL

2 THE OTHER FACTORS THAT ARE MANDATORY. THEY'RE NOT SUGGESTED,

3 LIKE, OH, GEE, LOOK AT THESE, BUT IF YOU DON'T THINK THEY

4 APPLY, GO AHEAD AND ISSUE A STAY BECAUSE IT'S IMPORTANT.

5 THAT'S NOT THE LAW. AND THE REASON THEY MAKE THAT IMPASSIONED

6 PLEA IS BECAUSE THEY CANNOT AND HAVE NOT MET THE MANDATORY

7 FACTORS THAT THE TENTH CIRCUIT REQUIRES THIS COURT TO APPLY.

8

THE COURT: IF I AGREE WITH YOU, WHAT AM I TO MAKE

9 OF THE STATE'S ALTERNATIVE REQUEST THAT WE AT LEAST IMPOSE A

10 TEMPORARY STAY TO ALLOW THE TENTH CIRCUIT TO DECIDE HOW IT

11 WISHES TO PROCEED?

12

MS. TOMSIC: YOUR HONOR, NUMBER ONE, A REQUEST THAT

13 THIS COURT DO TEMPORARILY WHAT IT CAN'T DO PERMANENTLY IS NO

14 BETTER THAN THE INITIAL REQUEST. YOU STILL HAVE TO MAKE A

15 DEMONSTRATION WARRANTING A STAY, AND THE TENTH CIRCUIT TWICE

16 NOW HAS TOLD THESE GUYS WE'RE NOT GOING TO DO THAT, AND IT

17 WOULD BE WHOLLY IMPROPER FOR THIS COURT TO DO IT.

18

AND THEY TALK ABOUT THIS CLOUD OF CONFUSION. WELL, THE

19 CLOUD OF CONFUSION, WHICH I'LL GET TO, IS IN THEIR MINDS.

20 IT'S NOT IN ANYBODY ELSE'S. BUT THE BOTTOM LINE IS, YOUR

21 HONOR, THE STATUS QUO IN THIS CASE, THE LAW IN THIS

22 JURISDICTION RIGHT NOW IS YOUR ORDER. AND --

23

THE COURT: I THINK THIS IS MR. LOTT'S POINT. BUT

24 MY ORDER IS ONLY THE FIRST RULING IN THIS CASE. IT IS

25 CERTAINLY NOT GOING TO BE THE LAST. I THINK THE STATE'S POINT

21

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 23

1 IS EXACTLY THAT, SHOULDN'T WE ALLOW SOMEBODY ABOVE ME TO WEIGH

2 IN ON THAT?

3

MS. TOMSIC: YOUR HONOR, THEY'RE GOING TO WEIGH IN

4 ON IT, AND YOU KNOW WHAT, NOTHING IS GOING TO CHANGE BETWEEN

5 NOW AND THERE, NOTHING. I MEAN WHAT THE STATE HAS TO SHOW

6 EVEN FOR A TEMPORARY STAY -- WHICH THEY HAVEN'T CITED

7 AUTHORITY. THEY WENT TO JUDGE WALKER'S OPINION IN THE PROP 8

8 CASE. JUDGE, BUT REMEMBER, HIS OPINION WAS BEFORE WINDSOR.

9 IT WAS BEFORE ALL THESE OTHER CASES THAT HAVE COME DOWN AFTER

10 WINDSOR. IT'S NOT A TENTH CIRCUIT DECISION.

11

THE COURT: BUT WINDSOR DIDN'T ANSWER THE QUESTION

12 THAT THIS CASE PRESENTED TO ME. AND I DID THE BEST I COULD TO

13 INTERPRET HOW I THOUGHT I WAS SUPPOSED TO RULE IN LIGHT OF

14 WINDSOR. BUT MR. LOTT IS CORRECT, THE STATE OF UTAH IS

15 CORRECT, RIGHT, THE TENTH -- NEITHER THE TENTH CIRCUIT NOR THE

16 SUPREME COURT HAS ANSWERED THE QUESTION THAT I WAS REQUIRED TO

17 ANSWER IN THIS CASE?

18

MS. TOMSIC: YOUR HONOR, I WOULD ABSOLUTELY BE

19 CANDID AND AGREE WITH YOU, BUT WOULD YOU TELL ME A SINGLE CASE

20 IN THIS CIRCUIT OR FROM THE SUPREME COURT WHERE A COURT HAD

21 SAID, GOSH, IF YOUR CIRCUIT HASN'T RULED, AND THE SUPREME

22 COURT HASN'T RULED, YOU BETTER GRANT A STAY? BECAUSE YOU KNOW

23 WHAT, IF THAT WAS THE STANDARD, WE WOULD HAVE STAYS ISSUED

24 ALMOST IN EVERY CASE. EVERY CASE STANDS ON ITS OWN. THAT

25 ISN'T THE STANDARD, YOUR HONOR, AND THERE ISN'T A CASE THAT

22

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 24

1 STANDS FOR THAT PROPOSITION.

2

YOUR HONOR, HAD YOU BELIEVED THAT THERE SHOULD BE A STAY

3 IN PLACE, REGARDLESS OF ANY PENDING MOTION, SO THE TENTH

4 CIRCUIT WOULD HAVE AN OPPORTUNITY TO RULE ON THIS ISSUE, IT

5 SURE AS HECK COULD HAVE DONE A TEMPORARY STAY IN ITS ORDER AND

6 IT DIDN'T DO IT. IT DID NOT DO IT, AND THE STATUS QUO HAS

7 CHANGED.

8

THE COURT: WHAT IS THE STATUS QUO?

9

MS. TOMSIC: THE STATUS QUO RIGHT NOW IS THE LAW IN

10 UTAH IS THAT COUNTY CLERKS ARE OBLIGATED TO ISSUE LICENSES TO

11 SAME-SEX COUPLES TO GET MARRIED. SAME-SEX COUPLES ARE GETTING

12 MARRIED, ARE MARRIED. THERE WERE HUNDREDS OF SAME-SEX COUPLES

13 MARRIED BY THE END OF THE DAY ON FRIDAY. THAT IS THE STATUS

14 QUO. AND TO NOW SAY, GOSH, I WAS JUST KIDDING, FOLKS. I'M

15 GOING TO STOP THE IMPORT OF MY RULING, AND LET'S CHANGE IT NOW

16 BACK TO THE WAY IT WAS AND LET THE TENTH CIRCUIT DO IT.

17

THE COURT: IT'S NOT.

18

MS. TOMSIC: WAIT, LET ME JUST --

19

THE COURT: IT'S NOT A QUESTION THAT I WAS KIDDING.

20 IT'S THERE WAS NO MOTION FOR A STAY PENDING BEFORE I ENTERED

21 MY RULING. THERE IS NOW.

22

MS. TOMSIC: AND I UNDERSTAND IT. AND IN THAT

23 INTERIM, THE STATUS QUO HAS CHANGED, YOUR HONOR. AND WHAT THE

24 STATE IS ASKING YOU TO DO IS PUT THEM IN A POSITION WHERE THEY

25 CAN ARGUE TO THE TENTH CIRCUIT, GOSH, JUDGE SHELBY HAS NOW

23

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 25

1 ISSUED AN INTERIM TEMPORARY STAY, EVEN THOUGH THERE'S NO

2 AUTHORITY TO DO THAT. AND GUESS WHAT, THE STATUS QUO IN UTAH

3 NOW IS SAME-SEX COUPLES CAN GET MARRIED, AND WE ARE JUST

4 ASKING YOU TO MAINTAIN THE STATUS QUO. THEY ARE TRYING TO

5 AVOID THEIR BURDEN, WHICH IS YOU SHOW ME HOW THE STATE IS

6 GOING TO BE IRREPARABLY HARMED BY MORE SAME-SEX MARRIAGES

7 OCCURRING. THE STATUS QUO IS THE STATUS QUO.

8

AND I WANT TO COME BACK AND PUT ON THE RECORD, YOUR

9 HONOR, KIND OF THE CHRONOLOGY OF HOW WE GOT HERE. WHEN YOUR

10 HONOR ASKED FOR BRIEFING ON SUMMARY JUDGMENTS, THERE WAS NO

11 QUESTION THAT THERE WAS AN ABSOLUTE RISK AND POSSIBILITY FOR

12 BOTH SIDES THAT YOU WERE GOING TO ISSUE A SELF-EXECUTING

13 OPINION. I MEAN, MY GOSH, JUDGE, YOU DON'T HAVE TO BE MORE

14 THAN A LAW STUDENT TO KNOW THAT.

15

SECOND, WE'VE ALL MADE IT CLEAR, YOUR HONOR IS CLEAR,

16 THIS THING IS NOT GOING TO END HERE, AND WE KNOW THAT. THE

17 APPEAL NOTICE WAS FILED ON FRIDAY. IT'S GOING TO GO TO THE

18 TENTH CIRCUIT FOR FINAL RESOLUTION IN THIS CIRCUIT, UNLESS THE

19 SUPREME COURT GRANTS CERT. AND WE ALL KNOW THAT. YET THE

20 STATE NEVER ONCE RAISED THE ISSUE OF A STAY.

21

AND WE KNEW WHEN WE ENDED OUR HEARING ON DECEMBER 4TH

22 THAT THERE WASN'T GOING TO BE ANY WARNING ABOUT YOUR DECISION

23 COMING OUT. YOU WERE GOING TO ISSUE AN OPINION AND WE WOULD

24 GET IT ELECTRONICALLY. WE KNOW THAT. SO IF THE STATE DID

25 NOTHING TO PROTECT THE STATUS QUO, I THINK THIS COURT CAN

24

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 26

1 INFER THAT IN REALITY IT WAS NOT CONCERNED ABOUT IRREPARABLE

2 HARM.

3

AND I THINK THE OTHER THING THAT'S IMPORTANT, YOUR HONOR,

4 IS WHEN YOUR HONOR ISSUED THIS OPINION, AND IT CAME TO US ALL

5 AT THE SAME TIME ELECTRONICALLY, THE STATE DIDN'T DO ANYTHING

6 FOR A COUPLE OF HOURS. THEY COULD HAVE FILED A STAY. THEY

7 COULD HAVE SAID, JUDGE, MAKE THEM BRIEF IT IN TWO HOURS.

8 LET'S HAVE THIS HEARD NOW. THINGS ARE GOING NUTS. PEOPLE ARE

9 GETTING MARRIED. LET'S DO IT NOW BEFORE THERE'S MORE CHAOS

10 AND HARM, AS THEY CALL IT. THEY DIDN'T DO IT.

11

WHAT HAPPENED INSTEAD IS YOU ON YOUR OWN INITIATIVE

12 PLACED A CONFERENCE CALL AND HAD US ON THE PHONE, AND YOU WERE

13 CRYSTAL CLEAR IN THAT CONFERENCE CALL THAT YOU BELIEVED YOU

14 NEEDED A WRITTEN MOTION SO YOU UNDERSTOOD WHAT THE STANDARDS

15 WERE AND WHETHER THEY WERE MET.

16

AND IF YOU WILL RECALL, WHICH I'M SURE YOU DO, YOUR

17 HONOR, YOU ASKED THE STATE WHEN -- WHAT ARE YOU GOING TO DO?

18 ARE YOU GOING TO FILE A MOTION? WHEN ARE YOU GOING TO FILE

19 IT? I'LL SET AN EXPEDITED BRIEFING SCHEDULE. LET'S GET THIS

20 TAKEN CARE OF.

21

WHAT THE STATE TOLD YOU IS, GOSH, WE DON'T KNOW WHAT

22 WE'RE GOING TO DO OR WHEN. AND WE ENDED THE CALL WITH NO

23 SCHEDULE, NO HEARING, BECAUSE THE STATE IN THE FACE OF MY

24 STATEMENT, JUDGE, PEOPLE ARE GETTING MARRIED, SAME-SEX COUPLES

25 ARE GETTING MARRIED NOW, DID NOTHING, NOTHING. AND WHAT THEY

25

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 27

1 LET THE COUNTY CLERKS, INCLUDING -- EXCLUDING UTAH COUNTY, DO

2 WAS ISSUE MARRIAGE LICENSES TO SAME-SEX COUPLES, ALLOWED THEM

3 TO GET MARRIED, DIDN'T FILE A MOTION FOR A STAY. THEY FILED A

4 MOTION FOR -- OR A NOTICE OF APPEAL. THEY DIDN'T EVEN FILE

5 THEIR MOTION UNTIL AFTER THE OFFICES HAD CLOSED AT ABOUT 8:30

6 AT NIGHT.

7

NOW, IF THIS MOTION WOULD HAVE BEEN A 20 PAGE BLOCKBUSTER

8 INTELLECTUALLY CHALLENGING MOTION, GOSH, MAYBE YOU CAN SAY

9 MAYBE IT'S OKAY THAT THEY WAITED, BUT IT'S A FIVE PAGE MEMO,

10 JUDGE. COME ON. IF THEY WERE WORRIED ABOUT IRREPARABLE HARM

11 AND TRYING TO MAINTAIN SOME STATUS QUO THAT EXISTED BEFORE

12 THIS ORDER, THEY SURE AS HECK HAD THE OPPORTUNITY TO MAKE IT

13 HAPPEN. WELL, THEY DIDN'T. WE'RE IN A SITUATION WHERE WE

14 HAVE A DIFFERENT STATUS QUO. WE NEED TO KEEP THAT STATUS QUO

15 UNLESS A HIGHER COURT DETERMINES THAT IT SHOULD CHANGE.

16

THIS CONCEPT OF PING-PONGING, JUDGE, NOW STAY IT. GOSH,

17 LET'S GO TO THE TENTH CIRCUIT. WHAT IF THEY DON'T STAY IT?

18 THEN WE'RE BACK TO THIS -- I MEAN YOU TALK ABOUT CONFUSION AND

19 UNCERTAINTY. THAT'S EXACTLY WHAT THEY'RE ASKING.

20

AND I WOULD ASK YOUR HONOR TO UPHOLD THE MERITS OF YOUR

21 DECISION, STAND BEHIND THEM, BECAUSE THERE IS NO LIKELIHOOD

22 IT'S GOING TO BE REVERSED ON APPEAL, AND THERE SURE AS HECK

23 ISN'T ANY STRONG SHOWING IT WILL BE REVERSED. AND THE FAILURE

24 TO ESTABLISH THAT FUNDAMENTAL CRITICAL FACTOR IS ABSOLUTELY

25 DEVASTATING TO THIS MOTION. IF YOU CANNOT DEMONSTRATE THAT,

26

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 28

1 YOU ARE NOT ENTITLED TO A STAY AND YOU'RE SURE AS HECK NOT

2 ENTITLED TO UPSET THE STATUS QUO TEMPORARILY WHILE WE HAVE

3 THEM MAKE EXACTLY THE SAME INEFFECTIVE AND MERITLESS ARGUMENTS

4 TO THE TENTH CIRCUIT. PLEASE DO NOT CHANGE THE STATUS QUO

5 BASED ON ARGUMENTS THAT HAVE NO MERIT HERE AND CAN'T MEET THE

6 STANDARDS OF THE TENTH CIRCUIT UNDER RULE 8.

7

BUT LET ME TALK ABOUT THE OTHER FACTORS, YOUR HONOR,

8 BECAUSE IT'S NOT JUST THAT FACTOR. I MEAN THE REASON THEY

9 WANT TO KIND OF CLOUD EVERYTHING AND SAY, GOSH, THERE'S THIS

10 CLOUD OF CONFUSION. YOU NEED TO CLEAR IT UP. WELL, YOU KNOW

11 WHAT, THERE IS NO CLOUD OF CONFUSION. THERE IS A FEDERAL

12 ORDER THAT DECLARES THE LAW IN UTAH. THE COUNTIES, INCLUDING

13 SALT LAKE COUNTY, HAS NO QUESTION ABOUT WHAT THEIR OBLIGATION

14 TO FOLLOW THE LAW IS. THEY'RE DOING EXACTLY WHAT THE LAW IS,

15 AS I UNDERSTAND MOST OF THE OTHER COUNTIES IN THIS STATE ARE

16 DOING, OTHER THAN UTAH COUNTY.

17

AND, YOUR HONOR, WHILE I'M ON THIS, WHILE IT'S A LITTLE

18 BIT OF AN OFF POINT, IT'S SOMETHING I WANT IN THIS RECORD.

19 THE DEFENDANT GOVERNOR HERBERT IN THIS CASE ON SATURDAY -- MAY

20 I APPROACH?

21

THE COURT: PLEASE.

22

MS. TOMSIC: ISSUED A LETTER TO ALL OF THE COUNTY

23 CLERKS. NOW, THIS IS AFTER YOUR ORDER HAS BEEN

24 SELF-EFFECTUATING SINCE BETWEEN 1:30 AND 2:00 FRIDAY

25 AFTERNOON, AFTER PEOPLE HAVE BEEN GRANTED MARRIAGE LICENSES,

27

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 29

1 AFTER THEY'VE BEEN MARRIED, HE SENDS OUT THIS LETTER.

2

AND, YOUR HONOR, I WANT YOU TO LOOK AT THE SECOND

3 PARAGRAPH OF THIS LETTER, AND PARTICULARLY THE LAST SENTENCE.

4 GOVERNOR HERBERT, THE DEFENDANT IN THIS ACTION, THE GOVERNOR

5 OF THE STATE OF UTAH, REQUIRED TO FOLLOW UTAH LAW IS TELLING

6 THESE CLERKS, PENDING A DETERMINATION OF THE STAY, PLEASE

7 CONSULT WITH YOUR COUNTY ATTORNEY AND COUNCIL -- COUNTY

8 COUNCIL OR COMMISSION FOR DIRECTION OF HOW TO PROCEED, END

9 QUOTE.

10

YOUR HONOR, HE IMPLICITLY IS TELLING THEM NOT TO FOLLOW

11 YOUR ORDER. THIS IS NO DIFFERENT THAN GOVERNOR WALLACE

12 STANDING IN FRONT OF THAT YOUNG BLACK WOMAN IN ALABAMA AND

13 SAYING, I DON'T CARE IF A FEDERAL COURT DETERMINED THAT THIS

14 GIRL HAS A CONSTITUTIONAL RIGHT TO ENTER OUR ALL WHITE SCHOOL.

15 YOU'RE NOT COMING IN BECAUSE THE PEOPLE OF THIS STATE SAY YOU

16 CAN'T. WELL, YOU KNOW WHAT, YOUR HONOR, GOVERNOR HERBERT

17 DOESN'T GET TO DECIDE WHAT THE LAW IS. YOU DO AND YOU HAVE.

18 AND THE STATE OFFICIALS IN THIS STATE NEED TO ABIDE BY THEIR

19 OATH OF OFFICE AND WHAT THE LAW OF THIS STATE IS.

20

AND I WANT TO TURN TO IRREPARABLE HARM. YOUR HONOR, THE

21 STATE SKIRTS THE ISSUE THAT WE RAISED AND THE QUESTION YOU

22 POSED TO THEM, WHICH IS WHAT IS THE STATUS QUO? AND THE

23 REASON THAT'S IMPORTANT FOR IRREPARABLE HARM, YOUR HONOR, IS

24 BECAUSE YOU NEED TO LOOK AT WHAT WOULD HAPPEN IF YOU ISSUE

25 THIS STAY NOW. THIS ISN'T LIKE GOING BACK IN TIME BEFORE YOUR

28

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 30

1 DECISION WAS ISSUED AND SAYING, NOPE, WE'RE GOING TO JUST HOLD

2 STILL. WE'RE NOT GOING TO DO ANYTHING. THIS IS A SITUATION

3 WHERE YOUR ORDER HAS NOW BEEN IN EFFECT, GOSH, MOST OF FRIDAY

4 AFTERNOON AND PART OF MONDAY MORNING. IT IS THE STATUS QUO.

5 IT IS THE LAW IN UTAH. AND THE STATE MUST DEMONSTRATE HOW

6 PERMITTING ADDITIONAL SAME-SEX COUPLES TO MARRY WILL HARM ITS

7 INTEREST, WILL CREATE IRREPARABLE HARM. AND, YOUR HONOR, THEY

8 HAVE NOT MADE THAT SHOWING.

9

IN FACT YOUR POINTED QUESTION ABOUT, GOSH, IF YOU'RE

10 SAYING ALL THESE MARRIAGES ARE INVALID, IF THE TENTH CIRCUIT

11 REVERSES ME, WHAT'S YOUR HARM?

12

AND, YOUR HONOR, I WOULD ASK YOU TO LOOK BACK AT YOUR

13 OPINION AGAIN IN TERMS OF IRREPARABLE HARM OF THE STATE. THE

14 STATE'S ARGUMENT ABOUT PROTECTING THE PUBLIC WILL, AND

15 PROTECTING THE TRADITIONAL FAMILY, AND PROTECTING THE PUBLIC

16 PROCESS ARE ALL THE STATE INTERESTS THAT THE STATE ARGUED TO

17 THIS COURT AS JUSTIFICATION FOR THE DISCRIMINATORY MARRIAGE

18 LAWS IN UTAH.

19

AND YOUR HONOR SQUARELY HELD THAT THE STATE WHOLLY FAILED

20 TO DEMONSTRATE THAT EVEN ASSUMING THOSE WERE LEGITIMATE STATE

21 INTERESTS, THAT THERE WAS ANY RATIONAL RELATIONSHIP BETWEEN

22 BANNING SAME-SEX MARRIAGE AND ACCOMPLISHING THOSE OBJECTIVES.

23 IF THE STATE CANNOT MEET THAT STANDARD, WHEN NO SAME-SEX

24 MARRIAGES HAVE TAKEN PLACE, THEY SURE AS HECK CAN'T SHOW THEY

25 MEET A STANDARD OF SHOWING HOW MORE SAME-SEX MARRIAGES WILL

29

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 31

1 HARM THE STATE'S INTERESTS.

2

AND I WOULD ASK YOUR HONOR, IF YOU ARE LOOKING AT THIS IN

3 TERMS OF HARMS -- AND YOU AGAIN ASKED THE QUESTION, GOSH, HOW

4 DO YOU BALANCE, IF THE STATE IS ARGUING THAT IT IS GOING TO BE

5 HARMED HERE BECAUSE THE -- YOU'VE GOT ALL THESE ARGUMENTS

6 ABOUT TRADITIONAL MARRIAGE AND PUBLIC SUPPORT FOR

7 DISCRIMINATING AGAINST SAME-SEX COUPLES, HOW DO YOU BALANCE

8 THAT AGAINST MY FINDING THAT THE PLAINTIFFS IN THIS CASE HAVE

9 TWO FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION THAT ARE BEING

10 VIOLATED? HOW CAN YOU JUSTIFY, WHEN I HAVE FOUND AS A FEDERAL

11 JUDGE, MANDATED BY ARTICLE 3, NOT TO CARRY OUT THE WILL OF THE

12 PEOPLE, THAT'S THE LEGISLATURE AND GOVERNOR'S JOB. IT IS MY

13 JOB AS A FEDERAL JUDGE TO HONOR AND IMPLEMENT THE PROTECTIONS

14 OF THE UNITED STATES CONSTITUTION. IF I FIND THOSE

15 CONSTITUTIONAL RIGHTS EXIST AND THEY ARE BEING DEPRIVED, HOW

16 CAN YOU POSSIBLY WEIGH WHAT I FOUND TO BE INSUFFICIENT TO

17 JUSTIFY THESE DISCRIMINATORY LAWS WOULD IN ANY WAY OUTWEIGH

18 THE DEPRIVATION OF CONSTITUTIONAL RIGHTS UNTIL THE TENTH

19 CIRCUIT APPELLATE PROCESS RUNS ITS COURSE, WHICH MAY BE YEARS?

20

AND I WOULD POINT OUT AGAIN, YOUR HONOR, THIS CONCEPT

21 THAT, GOSH, ALL WE'RE TALKING ABOUT IS DELAYING LETTING THESE

22 FOLKS EXERCISE THEIR CONSTITUTIONAL RIGHTS. WELL, TO ME THAT

23 ARGUMENT IS JUST ALMOST THE SAME AS THEIR ARGUMENT IN THEIR

24 PAPERS THAT THERE'S NOT A LONG ENOUGH HISTORY OF

25 DISCRIMINATION. LET'S MAKE IT LONGER. THAT'S NOT A GOOD

30

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 32

1 ARGUMENT, YOUR HONOR. IT'S NOT A FAIR ARGUMENT. YEAH, THAT'S

2 WHAT THEY THINK, BUT THAT'S NOT A LEGAL JUSTIFICATION.

3

AND I WOULD POINT OUT AGAIN, AS I DID IN MY PAPERS, AS I

4 DID IN MY ORAL ARGUMENT BEFORE, I HAVE TWO PLAINTIFFS, ONE OF

5 WHOM IS TERMINALLY ILL AND DYING. AND THEY ARE SAYING, OH,

6 GOSH, YOU KNOW, TOO BAD. IF THAT HAPPENS TO ALL THESE OTHER

7 SAME-SEX COUPLES WHO AREN'T MARRIED, IT'S JUST THE BREAKS.

8 WELL, IT'S NOT THE BREAKS.

9

JUDGE, YOU BALANCE THOSE HARMS. OURS WIN. THEIRS ARE

10 SHALLOW AND NONEXISTENT. AND I WOULD ASK YOU TO SAY TO

11 YOURSELF, IF I STAY THIS ACTION, WHAT IS THE WORST THAT'S

12 GOING TO HAPPEN TO THE STATE? AND BALANCE IT AGAINST WHAT IS

13 THE WORST THAT'S GOING TO HAPPEN TO SAME-SEX COUPLES? AND

14 LIKE YOUR DECISION, IT IS NOT A CLOSE CALL.

15

AND FINALLY, YOUR HONOR, LET'S TALK ABOUT THE PUBLIC

16 INTEREST. THEY TALK ABOUT WANTING TO PROTECT ALL OF UTAH'S

17 CITIZENS BECAUSE, GOSH, THERE'S THIS WHOLE GROUP OF PEOPLE WHO

18 BELIEVE THAT THIS ORDER IS VIOLATING GOD'S LAW. AND THEY WANT

19 TO PROTECT THOSE CITIZENS. WELL, YOU KNOW WHAT, YOUR HONOR,

20 IT'S NOT THIS COURT'S PLACE TO PROTECT A MORAL MAJORITY'S

21 VIEWPOINT. THE LAW IS CLEAR ON THAT. IT'S TO PROTECT THE

22 CONSTITUTIONAL RIGHTS OF OUR CITIZENS.

23

AND WHEN WE'RE TALKING ABOUT THE PUBLIC INTEREST HERE,

24 THIS COURT FOUND, AND THE STATE ADMITTED, THAT THE PLAINTIFFS

25 AND OTHER SAME-SEX COUPLES, BY BEING KEPT FROM MARRIAGE, WERE

31

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 33

1 SUFFERING CONSTITUTIONAL INJURIES. AND THE LANGUAGE YOU QUOTE

2 IS OUT OF WINDSOR. IT IS A CONSTITUTIONAL INJURY, YOUR HONOR,

3 AND IT IS AN INJURY THAT WILL HAPPEN EVERY DAY A STAY IS IN

4 PLACE, JUST LIKE IT DID BEFORE YOUR RULING. AND THERE IS NO

5 JUSTIFICATION FOR THAT.

6

BUT, MORE IMPORTANTLY, WHEN THE STATE SAYS THEY WANT TO

7 PROTECT ALL ITS CITIZENS, THAT IS BALONEY. LOOK AT THE

8 UNCONTROVERTED RECORD IN THIS CASE, WHICH IS CITED IN YOUR

9 OPINION, WHICH IS THERE ARE AROUND 3,000 CHILDREN OF SAME-SEX

10 COUPLES WHO ARE EXPERIENCING ON A DAILY BASIS THE KIND OF

11 HARM, DISCRIMINATION AND INSECURITY THAT NO CHILD, NO CHILD,

12 SHOULD EVER HAVE TO ENDURE. PROTECT THOSE KIDS.

13

YOUR HONOR, AND FINALLY THEIR EFFORT TO RELY ON DECISIONS

14 IN HAWAII AND NEVADA THAT ARE CURRENTLY PENDING BEFORE THE

15 NINTH CIRCUIT, AND ALSO THE EIGHTH CIRCUIT OPINION.

16

THE COURT: BUT THE JACKSON DECISION IS RENDERED

17 MOOT, IS IT NOT, BY THE ACTION OF --

18

MS. TOMSIC: IT IS. IT ABSOLUTELY IS. SO WE'RE

19 REALLY TALKING ABOUT THE NEVADA DECISION AND THE EIGHTH

20 CIRCUIT DECISION. AND I WOULD SAY A COUPLE THINGS ABOUT THAT.

21 NUMBER ONE, YOUR HONOR, THOSE COURTS ARE NOT IN OUR

22 JURISDICTION.

23

NUMBER TWO, THOSE CASES WERE -- AND I KNOW YOU DON'T LOVE

24 WINDSOR THE WAY I LOVE WINDSOR, BUT THEY WERE CLEARLY BEFORE

25 WINDSOR, AND THEY WERE CLEARLY BEFORE THE SUPREME COURT LEFT

32

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 34

1 JUDGE WALKER'S DECISION IN PROP 8 INTACT. AND I WOULD SAY

2 THAT IF YOU LOOK AT ACTUALLY THE DECISIONS THAT WERE DECIDED

3 AFTER WINDSOR, INCLUDING THE NEW JERSEY CASE, THOSE CASES HAVE

4 REFUSED TO ISSUE INJUNCTIONS FOR THE SAME TYPE OF -- I MEAN

5 STAYS FOR THE SAME REASONS YOU SHOULD.

6

AND THE EFFORT OF THE STATE IN THE PLEADINGS THEY FILED

7 THIS MORNING AND IN ORAL ARGUMENT AND SAY, OH, GOSH, THEY'RE

8 DISTINGUISHABLE. NO, THEY'RE NOT, JUDGE. IF YOU READ THE

9 ORDER IN NEW JERSEY, THE STANDARDS FOR STAY IN NEW JERSEY ARE

10 THE SAME WHETHER IT'S A STATE LAW OR A FEDERAL LAW. IT'S THE

11 SAME. IT IS NO DIFFERENT.

12

AND I WOULD JUST SAY TO YOUR HONOR, PLEASE, DO THE RIGHT

13 THING.

14

THE COURT: THANK YOU, MS. TOMSIC.

15

MR. LOTT.

16

MR. LOTT: JUST A COUPLE OF POINTS IN RESPONSE.

17

THE COURT: WOULD YOU MOVE THE MICROPHONE A LITTLE

18 CLOSER.

19

MR. LOTT: JUST A COUPLE OF POINTS IN RESPONSE.

20 REGARDING THE TIMING OF THE COURT'S ORDER ISSUING, IT WAS THE

21 FRIDAY BEFORE CHRISTMAS, AND IT WOULD HAVE BEEN NICE TO HAVE

22 RECEIVED NOTICE OF THE COURT'S GOING TO BE ISSUING A RULING

23 AND TO HAVE SOME EXPECTATION. I THINK THE CHRONOLOGY MAY HAVE

24 WORKED OUT A LITTLE BIT DIFFERENTLY HAD THAT HAPPENED.

25

ON THE CHARACTERIZATION OF THE TENTH CIRCUIT'S CURRENT

33

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 35

1 RULING, AGAIN, IT'S WITHOUT PREJUDICE, AND I DON'T THINK

2 ANYTHING MORE THAN THAT NEEDS TO BE READ INTO IT. THE STATE

3 IS NOT --

4

THE COURT: I DON'T READ EITHER OF THE TENTH CIRCUIT

5 ORDERS TO BE SUBSTANTIVE ORDERS. THE FIRST WAS CLEARLY

6 PROCEDURAL. THE RULING WAS THAT THE APPLICATION WAS

7 INSUFFICIENT, AND SO IT WAS DENIED FOR THAT REASON. IT DIDN'T

8 MEET THE LEGAL REQUIREMENTS. AND THE ONE THIS MORNING IS NOT

9 MUCH EXPLANATION, EXCEPT TO SAY THAT I THINK, AS BEST I CAN

10 READ IT, IS THEY WANTED THIS HEARING TO PROCEED BEFORE THEY

11 MADE A DECISION. BUT IN BOTH INSTANCES THEIR ORDERS DENYING

12 THE STATE'S REQUEST ARE WITHOUT PREJUDICE, WHICH INVITES THE

13 STATE TO RENEW THOSE MOTIONS. IS THAT WHAT THE STATE INTENDS

14 TO DO IF I DENY THE STATE'S MOTION FOR A STAY?

15

MR. LOTT: YES.

16

THE COURT: ALL RIGHT.

17

MR. LOTT: THE STATE HAS NOT CITED TO OR RELIED UPON

18 GOD'S LAW IN THIS, AND I THINK THAT'S AN IRRELEVANT ASSERTION.

19 AND AS TO THE GOVERNOR'S LETTER, I HADN'T SEEN THAT BEFORE

20 TODAY, BUT --

21

THE COURT: NEITHER HAD I.

22

MR. LOTT: IN MY VIEW THE GOVERNOR'S ADVICE TO A

23 COUNTY CLERK TO CHECK WITH A COUNTY ATTORNEY SEEMS LIKE A

24 REASONABLE ADVICE TO ME. I DON'T SEE --

25

THE COURT: I DON'T SEE THAT IT'S PARTICULARLY

34

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 36

1 RELEVANT TO WHAT WE'RE DOING TODAY. MS. TOMSIC WANTED IT IN

2 THE RECORD, AND IT WILL BE RECEIVED FOR THAT REASON.

3

MR. LOTT: THANK YOU, YOUR HONOR.

4

THE COURT: THANK YOU. ALL RIGHT. LET'S DO THIS.

5 LET'S TAKE A -- LET'S TAKE A BRIEF RECESS.

6

MS. GODDARD: YOUR HONOR, I'M SO SORRY. THIS IS

7 GOING TO BE A LITTLE ANTICLIMACTIC, BUT I DO THINK THERE IS

8 SOMETHING THE COUNTY IS UNIQUELY POSITIONED TO ADDRESS.

9

THE COURT: MY APOLOGIES. PLEASE, THE PODIUM IS

10 YOURS.

11

MS. GODDARD: YOUR HONOR ASKED EARLIER WHAT THE

12 STATUS QUO IS, AND I THINK BOTH PARTIES ANSWERED IT TO THE

13 BEST THEY COULD. I THINK THAT SALT LAKE COUNTY AS THE FIRST

14 ENTITY TO ISSUE THE MARRIAGE LICENSES MIGHT BE THE BEST TO

15 GIVE YOU THE ACTUAL NUMBERS.

16

ON FRIDAY WE ISSUED OVER 100 MARRIAGE LICENSES TO

17 SAME-SEX COUPLES. THE FIRST ONE WAS ISSUED WITHIN I WOULD SAY

18 PROBABLY 45 MINUTES OF OUR RECEIVING NOTICE OF THE COURT'S

19 ORDER.

20

AS OF THIS MORNING WE HAVE ISSUED OVER 90 I AM TOLD

21 ALREADY, AND THAT NUMBER IS PROBABLY A LITTLE BIT STALE. WHEN

22 WE CAME HERE THIS MORNING THERE WAS -- THERE WAS A LINE OF

23 PEOPLE STRETCHING THROUGH ALL THREE FLOORS OF OUR BUILDING.

24

BUT MORE THAN THAT, YOUR HONOR, THERE IS ACTUALLY SOME

25 CONFUSION AMONG THE COUNTY CLERKS THAT I THINK WOULD BE

35

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 37

1 HELPFUL FOR YOU TO ADDRESS. THERE IS A PROVISION IN THE UTAH

2 CODE THAT ALSO AFFECTS THE ABILITY OF CLERKS TO ISSUE LICENSES

3 TO SAME-SEX COUPLES THAT IS NOT EXPLICITLY ADDRESSED IN YOUR

4 RULING.

5

THIS CODE SECTION IS 31-8, AND IT IS APPLICATION FOR A

6 LICENSE. AND TWICE IN THAT SECTION OF THE CODE IT REFERENCES

7 THAT A MARRIAGE LICENSE MAY BE ISSUED BY THE COUNTY CLERK TO A

8 MAN AND A WOMAN. THAT IS IN THE FIRST SECTION. IT IS ALSO IN

9 THE NEXT SUBSECTION THAT TALKS ABOUT THE FULL NAMES OF A MAN

10 AND A WOMAN.

11

NOW, OUR INTERPRETATION IN SALT LAKE COUNTY OF YOUR ORDER

12 ON FRIDAY, WHEN IN FOOTNOTE ONE ON PAGE EIGHT YOU INDICATED

13 THAT YOU WERE ADDRESSING ALL OF THE LAWS THAT WOULD RESTRICT

14 THE ISSUANCE OF LICENSES TO SAME-SEX COUPLES, WAS THAT YOU

15 MEANT WHAT YOU SAID. AND SO WE INTERPRETED IT, AND WE ADVISED

16 OUR CLERK THAT REGARDLESS OF THIS SEPARATE SECTION IN THE

17 CODE, SHE NEEDED TO COMPLY WITH YOUR ORDER.

18

THAT SAID, OVER THE WEEKEND WE BECAME AWARE THAT THIS IS

19 AN ISSUE IN A NUMBER OF COUNTY CLERKS OFFICES THROUGHOUT THE

20 STATE OF UTAH WHERE THEY ARE CONCERNED ABOUT THE LANGUAGE THAT

21 WAS UNADDRESSED IN YOUR OPINION, AND IN PARTICULAR THEY ARE

22 CONCERNED BECAUSE IT IS A CLASS-A MISDEMEANOR FOR CLERKS TO

23 ISSUE LICENSES IN VIOLATION OF THE LAW.

24

AND BECAUSE THAT CODE SECTION IS NOT SPECIFICALLY

25 MENTIONED, I THINK THERE IS SOME CONFUSION, NOT THE CONFUSION

36

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 38

1 THE STATE OR MS. TOMSIC IS TALKING ABOUT, BUT A CONFUSION

2 AMONG THE COUNTY ATTORNEYS AND THE COUNTY CLERKS AS TO WHETHER

3 THEY COULD POTENTIALLY BE CRIMINALLY LIABLE UNDER THAT

4 SEPARATE PROVISION.

5

NOW, AGAIN, SALT LAKE COUNTY VIEWS YOUR ORDER AS

6 ENCOMPASSING ALL THE LAWS THAT WOULD PURPORT TO LIMIT THE

7 ABILITY OF THE CLERKS TO ISSUE LICENSES TO SAME-SEX COUPLES.

8 BUT TO THE EXTENT YOU ARE NOT INCLINED TO STAY YOUR RULING

9 TODAY, AND SO WE ALL LEAVE THIS COURTROOM AND CLERKS ARE

10 CONTINUING TO ISSUE LICENSES, WE THINK IT WOULD BE HELPFUL NOT

11 JUST IN SALT LAKE COUNTY BUT TO OTHER CLERKS THROUGHOUT THE

12 STATE FOR YOU TO CLARIFY THAT YOUR RULING ENCOMPASSES THAT

13 SECTION OF THE CODE AS WELL.

14

THE COURT: ALL RIGHT, THANK YOU, MS. GODDARD. OF

15 COURSE THAT SECTION OF THE CODE WASN'T RAISED BY ANY OF THE

16 PARTIES IN THE BRIEFING, AND I WAS COMPLETELY UNAWARE OF IT

17 UNTIL THIS MORNING.

18

MS. TOMSIC: MEA CULPA, YOUR HONOR.

19

THE COURT: ALL RIGHT. ANYTHING MORE IN LIGHT OF

20 THAT, MR. LOTT, MS. TOMSIC?

21

MS. TOMSIC: NO, YOUR HONOR.

22

MR. LOTT: NO.

23

THE COURT: LET'S TAKE A BRIEF RECESS FOR 15 OR 20

24 MINUTES AND WE'LL COME BACK.

25

(RECESS FROM 10:19 A.M. UNTIL 11:08 A.M.)

37

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 39

1

THE COURT: ALL RIGHT. THANK YOU ALL FOR YOUR

2 PATIENCE. ONCE AGAIN THE PARTIES HAVE GIVEN ME A GREAT DEAL

3 TO CONSIDER.

4

AT THE OUTSET LET ME FIRST ADDRESS THE ISSUE RAISED BY

5 SALT LAKE COUNTY AT THE CONCLUSION OF OUR ARGUMENT. TO THE

6 EXTENT THAT IT'S NOT ALREADY CLEAR FROM THE COURT'S RULING, MY

7 INTENT AND THE EFFECT OF MY RULING ON FRIDAY WAS TO FIND THAT

8 THE LAWS OF THE STATE OF UTAH THAT OPERATE TO DENY SAME-SEX

9 COUPLES THE OPPORTUNITY TO MARRY OPERATE IN VIOLATION OF THE

10 DUE PROCESS PROTECTIONS AND EQUAL PROTECTION UNDER THE UNITED

11 STATES CONSTITUTION. FOR THAT REASON, THEY COULD NOT BE

12 APPLIED.

13

WHILE I DID NOT ATTEMPT TO IDENTIFY OR SPECIFY EVERY

14 PROVISION OF THE STATE CODE THAT MIGHT OPERATE IN VIOLENCE TO

15 THOSE CONSTITUTIONAL GUARANTEES, THE INTENT AND EFFECT OF MY

16 ORDER IS TO PREVENT THE STATE OF UTAH OR ANYONE ACTING ON

17 BEHALF OF THE STATE OF UTAH FROM ENFORCING ANY LAW THAT WOULD

18 DEPRIVE SAME-SEX COUPLES OF THOSE CONSTITUTIONAL GUARANTEES,

19 INCLUDING THAT PROVISION THAT MS. GODDARD SPECIFICALLY RAISED

20 AT THE CONCLUSION OF OUR ARGUMENT.

21

BUT TURNING TO THE ISSUE BEFORE US, THE -- BEFORE THE

22 COURT IS THE STATE DEFENDANTS' MOTION FOR A STAY PENDING

23 APPEAL. WE HAVE CAREFULLY REVIEWED THE BRIEFS SUBMITTED BY

24 THE PARTIES, BOTH IN SUPPORT OF AND IN OPPOSITION TO THAT

25 MOTION, AND OF COURSE HAVE CONSIDERED THE ARGUMENTS PRESENTED

38

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 40

1 HERE THIS MORNING. WE'VE ALSO CONSIDERED THE LEGAL

2 AUTHORITIES CITED BY THE PARTIES AND THE STANDARDS THAT GOVERN

3 APPLICATIONS FOR STAYS PENDING APPEAL.

4

I'LL NOTE THAT I THINK MS. TOMSIC'S DISCUSSION CONCERNING

5 THE PROCEDURAL HISTORY THAT LED US TO THIS POINT WAS CORRECT

6 AND APT, AND I ADOPT THAT DISCUSSION. AND OUR REALITY, OF

7 COURSE, IS THAT THIS IS SOMETHING OF A MESS, FOR THOSE REASONS

8 I THINK THAT MS. TOMSIC EXPLAINED.

9

I'LL NOTE THAT THERE IS NO DISPUTE AMONGST THE PARTIES

10 ABOUT THE STANDARD THAT I AM REQUIRED TO APPLY IN ADDRESSING

11 AND RESOLVING THIS MOTION FOR A STAY PRESENTED BY THE STATE

12 DEFENDANTS. EVERYONE AGREES WHAT THOSE FACTORS ARE.

13

BEFORE I ANNOUNCE MY RULING, I'LL JUST NOTE THAT

14 ULTIMATELY THE STATE DEFENDANTS ENCOURAGE ME TO FOLLOW THE

15 COURSE TAKEN BY JUDGE WALKER IN CALIFORNIA IN DECIDING THE

16 PROPOSITION 8 LITIGATION. BUT, IMPORTANTLY, WE ARE IN A

17 DIFFERENT PROCEDURAL POSTURE THAN JUDGE WALKER WAS, FOR THE

18 REASON THAT THE PARTIES IN THAT CASE CONSIDERED AND HAD

19 PREPARED TO FILE A MOTION REQUESTING THAT THE COURT STAY THE

20 EFFECT OF ITS ORDER EVEN BEFORE THE COURT ISSUED ITS RULING.

21 THE INTERVENOR DEFENDANTS IN THE PROPOSITION 8 LITIGATION MADE

22 THAT REQUEST IN A MANNER THAT PERMITTED JUDGE WALKER TO

23 CONSIDER IT SIMULTANEOUSLY WITH THE ISSUANCE OF HIS RULING ON

24 THE MERITS.

25

AND OF COURSE JUDGE WALKER DID THAT. HE ISSUED TWO

39

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 41

1 ORDERS ESSENTIALLY SIMULTANEOUSLY, ONE RESOLVING THE LEGAL

2 ISSUES ADDRESSED, AND THEN, SECOND, A SECOND ORDER STAYING THE

3 EFFECT OF THAT RULING TO PRESERVE THE STATUS QUO UNTIL THE

4 PARTIES HAD AN OPPORTUNITY FULLY TO BRIEF A REQUEST FOR A

5 STAY.

6

AND IN THIS INSTANCE WE HAD NO SUCH REQUEST FROM ANY

7 PARTY, EITHER PRIOR TO THE COURT'S SUBSTANTIVE RULING FRIDAY

8 OR IMMEDIATELY THEREAFTER. SO THIS COURT DID WHAT IT HAS DONE

9 IN EVERY CASE, IN EVERY ORDER THAT I HAVE ISSUED SINCE I TOOK

10 MY OATH AND TOOK THIS POSITION, AND THAT WAS TO ISSUE AN ORDER

11 RESOLVING THE ISSUES PRESENTED BY THE PARTIES, AND NOTHING

12 ELSE, AND THAT'S EXACTLY WHAT WE DID.

13

AND I'LL NOTE THAT AT ITS CORE I BELIEVE MS. TOMSIC IS

14 CORRECT, THAT THE STATE ESSENTIALLY RELIES AND REASSERTS HERE

15 ARGUMENTS THAT IT PREVIOUSLY SUBMITTED IN OPPOSITION TO THE

16 PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, ARGUMENTS THAT I

17 PREVIOUSLY CONSIDERED AND DECIDED ON THE MERITS. AND THOSE

18 FINDINGS -- PARDON ME -- THOSE FINDINGS PREVENT ME FROM

19 PROVIDING THE RELIEF THAT THE STATE IS REQUESTING TODAY.

20

FOR REASONS THAT I WILL FURTHER AND MORE COMPLETELY

21 ARTICULATE IN A BRIEF WRITTEN RULING THAT I'LL ISSUE BEFORE

22 THE END OF THE DAY TODAY, I CONCLUDE THAT THE STATE HAS FAILED

23 TO CARRY ITS BURDEN AS THE MOVING PARTY TO DEMONSTRATE AND

24 SATISFY THE FACTORS IT IS REQUIRED TO MEET IN ORDER TO OBTAIN

25 A STAY PENDING RESOLUTION OF THE DEFENDANTS' APPEAL TO THE

40

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 42

1 TENTH CIRCUIT.

2

AND IMPORTANTLY I'LL NOTE THAT THERE IS NO AUTHORITY

3 CITED BY THE PARTIES, AND I AM AWARE OF NO AUTHORITY, THAT

4 OTHERWISE GRANTS ME A LEGAL BASIS TO PROVIDE A TEMPORARY STAY

5 WHILE THE TENTH CIRCUIT CONSIDERS WHAT I EXPECT WILL BE AN

6 EXPEDITIOUSLY FORTHCOMING MOTION FROM THE STATE OF UTAH.

7

IN LIGHT OF THAT, IT SEEMS TO ME THAT MY OBLIGATION AS A

8 DISTRICT COURT JUDGE IS TO MAKE A SUBSTANTIVE RULING ON THE

9 MERITS AS QUICKLY AS POSSIBLE AND THEN TO STEP ASIDE AND ALLOW

10 THE TENTH CIRCUIT TO WEIGH IN AND DETERMINE HOW BEST TO

11 PROCEED.

12

AND SO WHILE THERE WILL BE A BRIEF WRITTEN ORDER

13 FORTHCOMING, THE ORDER THAT I'VE JUST ARTICULATED IS THE

14 RULING OF THE COURT, AND THE STATE IS WELCOME TO PROCEED

15 IMMEDIATELY WITH ANY APPLICATION FOR ANY FURTHER RELIEF IT

16 WOULD LIKE FROM THE TENTH CIRCUIT OR ANYONE ELSE.

17

IN LIGHT OF THAT RULING, ARE THERE ANY FURTHER -- ARE

18 THERE ANY QUESTIONS OR ANYTHING MORE WE SHOULD TAKE UP TODAY?

19

MR. LOTT?

20

MR. LOTT: NOT ON BEHALF OF THE STATE DEFENDANTS.

21 WE THANK THE COURT FOR THE CLARITY OF THE RULING.

22

THE COURT: THANK YOU, AND THANK YOU BOTH, BOTH

23 PARTIES, FOR -- YOU HAVE BOTH WORKED OVER THE WEEKEND AND LATE

24 AT NIGHT TO PREPARE YOUR BRIEFS AND ARGUMENTS, AND I VERY MUCH

25 APPRECIATE THAT.

41

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 43

1

MS. TOMSIC, IS THERE ANYTHING FURTHER?

2

MS. TOMSIC: NO, YOUR HONOR. THANK YOU FOR THE TIME

3 THIS MORNING.

4

THE COURT: THANK YOU. WE'LL BE IN RECESS.

5

(HEARING CONCLUDED AT 11:16 A.M.)

6

* * *

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

42

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 44

1

2

3

4

5

CERTIFICATE OF REPORTER

6

I, RAYMOND P. FENLON, OFFICIAL COURT REPORTER FOR THE

7 UNITED STATES DISTRICT COURT, DISTRICT OF UTAH, DO HEREBY

8 CERTIFY THAT I REPORTED IN MY OFFICIAL CAPACITY, THE

9 PROCEEDINGS HAD UPON THE HEARING IN THE CASE OF

10 KITCHEN, ET AL. VS. HERBERT, ET AL., CASE NO. 2:13-CV-217,

11 IN SAID COURT, ON THE 23RD DAY OF DECEMBER, 2013.

12

I FURTHER CERTIFY THAT THE FOREGOING PAGES CONSTITUTE

13 THE OFFICIAL TRANSCRIPT OF SAID PROCEEDINGS AS TAKEN FROM MY

14 MACHINE SHORTHAND NOTES.

15

IN WITNESS WHEREOF, I HAVE HERETO SUBSCRIBED MY NAME

16 THIS 23RD DAY OF DECEMBER, 2013.

17

18

19

20

/S/ RAYMOND P. FENLON

21

22

23

24

25

43

 
 Appellate Case: 13-4178 Document: 01019177155 Date Filed: 12/24/2013 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT

December 24, 2013

DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; KODY PARTRIDGE, individually,

Elisabeth A. Shumaker Clerk of Court

Plaintiffs-Appellees,
v.
GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah,

No. 13-4178 (D.C. No. 2:13-CV-00217-RJS)
(D. Utah)

Defendants-Appellants,

and

SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County,

Defendant.

ORDER DENYING EMERGENCY MOTION FOR STAY AND TEMPORARY MOTION FOR STAY

Before HOLMES and BACHARACH, Circuit Judges.

This is an appeal from a district court order concluding that Utah’s prohibition on same-sex marriage is unconstitutional as a violation of due process and equal

Appellate Case: 13-4178 Document: 01019177155 Date Filed: 12/24/2013 Page: 2
protection. Defendants-Appellants seek a stay pending appeal and a temporary stay while the court considers the stay request. Plaintiffs-Appellees have filed a response.
A stay pending appeal is governed by the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir.2001); 10th Cir. R. 8.1. The first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm, respectively. Nken v. Holder, 556 U.S. 418, 434-35 (2009).
Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted. Accordingly, we deny Defendants-Appellants’ emergency motions for a stay pending appeal and for a temporary stay. In addition, we direct expedited consideration of this appeal. The Clerk is directed to issue a separate order setting deadlines for briefing.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
- 2 -

 
 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 2

1

(825)

2

3

4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

5

CENTRAL DIVISION

6 ______________________________________________________________

7 DEREK KITCHEN, INDIVIDUALLY;

MOUDI SBEITY, INDIVIDUALLY;

8 KAREN ARCHER, INDIVIDUALLY;

CASE NO. 2:13-CV-217

KATE CALL, INDIVIDUALLY;

9 LAURIE WOOD, INDIVIDUALLY; AND

KODY PARTRIDGE, INDIVIDUALLY.

10

PLAINTIFFS,

11

VS.

12

GARY R. HERBERT, IN HIS OFFICIAL

13 CAPACITY AS GOVERNOR OF UTAH;

SALT LAKE CITY, UTAH

JOHN SWALLOW, IN HIS OFFICIAL

DECEMBER 23, 2013

14 CAPACITY AS ATTORNEY GENERAL OF

UTAH; AND SHERRIE SWENSEN, IN HER

15 OFFICIAL CAPACITY AS CLERK OF

SALT LAKE COUNTY,

16

DEFENDANTS.

17

______________________________________________________________

18

DEFENDANTS' MOTION TO STAY PENDING APPEAL

19

BEFORE THE HONORABLE ROBERT J. SHELBY

UNITED STATES DISTRICT COURT JUDGE

20

21

22

23

24

25

1

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 3

1

2

3

4

5 APPEARANCES:
6

7

8 FOR THE PLAINTIFFS: 9 10 11

MAGLEBY & GREENWOOD BY: JENNIFER F. PARRISH, ESQ.
PEGGY A. TOMSIC, ESQ. 170 SOUTH MAIN STREET, SUITE 850 SALT LAKE CITY, UTAH 84101 (801) 359-9000

12 FOR DEFENDANTS HERBERT AND SWALLOW:

13

OFFICE OF THE UTAH ATTORNEY GENERAL

BY: BRIAN TARBET, ESQ.

14

PHILIP S. LOTT, ESQ.

STEVE WALKENHORST, ESQ.

15

160 EAST 300 SOUTH, SIXTH FLOOR

P.O. BOX 140856

16

SALT LAKE CITY, UTAH 84114

(801) 366-0100

17

FOR DEFENDANT SWENSEN:

18

SALT LAKE COUNTY DISTRICT ATTORNEY

19

BY: RALPH E. CHAMNESS, ESQ.

DARCY M. GODDARD, ESQ.

20

2001 SOUTH STATE STREET, ROOM S3700

SALT LAKE CITY, UTAH 84190

21

(385) 468-7700

22 COURT REPORTER: 23 24

RAYMOND P. FENLON 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634

25

2

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 4

1

P-R-O-C-E-E-D-I-N-G-S

2

(9:20 A.M.)

3

THE COURT: GOOD MORNING. LET ME TRY THAT AGAIN.

4 THERE WE GO. GOOD MORNING, EVERYONE. WE'LL GO ON THE RECORD

5 IN CASE NUMBER 2:13-CV-217. THIS IS KITCHEN, ET AL. VERSUS

6 HERBERT AND THE STATE OF UTAH, ET AL.

7

COUNSEL, WHY DON'T YOU TAKE A MOMENT AND MAKE YOUR

8 APPEARANCES, IF YOU WOULD, PLEASE.

9

MR. MAGLEBY: YOUR HONOR, PEGGY TOMSIC AND JENNIFER

10 FRASER PARRISH ON BEHALF OF THE PLAINTIFFS. I WOULD ASK THAT

11 THE COURT EXCUSE MR. MAGLEBY. HE IS OUT OF THE COUNTRY.

12

THE COURT: OF COURSE, THANK YOU.

13

MR. LOTT: YOUR HONOR, PHIL LOTT. TOGETHER WITH ME

14 HERE IS ACTING ATTORNEY GENERAL BRIAN TARBET, AND ALSO STEVE

15 WALKENHORST FROM THE ATTORNEY GENERAL'S OFFICE ON BEHALF OF

16 THE STATE DEFENDANTS.

17

THE COURT: THANK YOU.

18

MS. GODDARD: AND DARCY GODDARD AND RALPH CHAMNESS

19 ON BEHALF OF CO-DEFENDANT SALT LAKE COUNTY.

20

THE COURT: THANK YOU. GOOD MORNING TO ALL OF YOU.

21

THIS IS THE TIME SET FOR HEARING ON THE STATE DEFENDANTS'

22 MOTION FOR A STAY PENDING APPEAL. MY APOLOGIES TO KEEP -- FOR

23 KEEPING ALL OF YOU THIS MORNING. WE WERE NOTIFIED JUST BEFORE

24 WE WERE ABOUT TO COME OUT THAT THE TENTH CIRCUIT WAS ISSUING

25 AN ORDER IN RESPONSE TO A MOTION I THINK THE STATE RENEWED I

3

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 5

1 THINK AT 1:00 O'CLOCK THIS MORNING. WE RECEIVED THE 10TH

2 CIRCUIT'S WRITTEN RULING MOMENTS AGO. I JUST WANTED TO ENSURE

3 WE HAD AN OPPORTUNITY TO REVIEW IT BEFORE WE CAME OUT SO THAT

4 I WASN'T DOING SOMETHING IN VIOLATION OF THE TENTH CIRCUIT'S

5 DIRECTIVES.

6

COUNSEL, A COPY OF THAT ORDER WAS PROVIDED TO BOTH OF

7 YOU, IS THAT CORRECT?

8

MR. LOTT: YES.

9

MS. TOMSIC: YES, YOUR HONOR.

10

THE COURT: ALL RIGHT. WELL, MR. LOTT, I'VE

11 REVIEWED THE SUBMISSIONS ON BEHALF OF ALL THE PARTIES. IT'S

12 THE STATE'S MOTION. THE FLOOR IS YOURS.

13

MR. LOTT: THANK YOU.

14

THE COURT: THANK YOU.

15

MR. LOTT: MAY IT PLEASE THE COURT. THIS COURT'S

16 DECISION IS NOT THE FINAL WORD ON WHETHER UTAH'S MARRIAGE LAWS

17 ARE CONSTITUTIONAL. IT HAS ALWAYS BEEN UNDERSTOOD THAT BOTH

18 SIDES INTENDED TO APPEAL ONCE THE DECISION WAS ENTERED IN THIS

19 CASE. HERE THE COURT HAS DECIDED TO IMPOSE ITS OWN VIEW OF

20 MARRIAGE ON UTAH REGARDLESS OF THE FACT THAT THE PEOPLE OF

21 UTAH HAVE DEMOCRATICALLY CHOSEN THE TRADITIONAL MAN/WOMAN

22 DEFINITION OF MARRIAGE.

23

CONSIDERING HOW IMPORTANT AND HOW HOTLY CONTESTED THE

24 DEFINITION OF MARRIAGE IS, AND THE FACT THAT NEITHER THE TENTH

25 CIRCUIT COURT OF APPEALS OR THE SUPREME COURT HAS ISSUED A

4

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 6

1 FINAL RULING ON THIS ISSUE, THE NEED FOR A STAY IS READILY

2 APPARENT. UTAH SHOULD BE ALLOWED TO FOLLOW ITS DEMOCRATICALLY

3 CHOSEN DEFINITION OF MARRIAGE UNTIL AN APPELLATE COURT OF LAST

4 RESORT HAS DECLARED OTHERWISE.

5

THE STATE DEFENDANTS ARE ENTITLED TO HAVE THIS COURT --

6 THIS COURT'S DECISION REVIEWED BY A HIGHER COURT BEFORE IT

7 GOES INTO EFFECT. A MORE ORDERLY APPROACH THAN THE CURRENT

8 FRENZY IS TO MAINTAIN THE STATUS QUO WHILE HIGHER COURTS

9 REVIEW THE DECISION. NOT ALLOWING THE STAY PREJUDICES THE

10 STATE'S RIGHT TO HAVE APPELLATE REVIEW BEFORE THIS COURT'S

11 DECISION GOES INTO EFFECT.

12

THE COURT: WHAT IS THE STATUS QUO NOW, MR. LOTT?

13 THE STATE -- THERE WAS NO MOTION AND NO REQUEST BY EITHER

14 PARTY IN ADVANCE OF THE COURT'S RULING IN THIS CASE THAT THE

15 RULING WOULD EVER BE STAYED PENDING AN APPEAL. IT WAS CLEAR

16 THAT MY RULING WAS GOING TO BE APPEALED. HAVING NO MOTION

17 BEFORE ME, THERE WAS NOTHING FOR THE COURT TO ADDRESS.

18

IN THE INTERIM, OF COURSE, PEOPLE BEGAN ACTING IN

19 RELIANCE ON THE COURT'S ORDER. THE QUESTION IS WE NOW HAVE IN

20 FRONT OF US A MOTION FOR STAY AND WE'RE ADDRESSING IT, BUT

21 WHAT IS -- WHAT IS THE STATUS QUO?

22

MR. LOTT: WELL, TYPICALLY OUR -- OUR VIEW AND

23 UNDERSTANDING IN A CASE LIKE THIS, TYPICALLY A CASE WOULD STAY

24 SUA SPONTE BEFORE ENTERING AN ORDER THAT'S GOING TO GO INTO

25 EFFECT. AND WE WERE FRANKLY SURPRISED BOTH WHEN THE ORAL

5

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 7

1 REQUEST THAT WAS MADE LAST WEEK WHEN THE STATE WAS NOTIFIED OF

2 THE RULING WAS NOT CONSIDERED, AND THAT WE DO HAVE A WINDOW OF

3 PERIOD -- A WINDOW OF TIME HERE THAT HAS RESULTED.

4

THE COURT: WELL, LET'S -- SO LET'S BE -- LET'S MAKE

5 SURE OUR RECORD ABOUT THAT IS COMPLETE SO THAT BOTH PARTIES

6 HAVE THE BENEFIT OF THAT IN YOUR APPEAL PROCESS. AND SO WE

7 WERE -- WE WERE CONTACTED BY YOUR OFFICE ABOUT ROUGHLY TWO OR

8 THREE HOURS AFTER THE ORDER ISSUED, I BELIEVE, AND WERE ASKED

9 ABOUT -- I THOUGHT WITH TWO QUESTIONS THAT SOUNDED PROCEDURAL,

10 AND FOR THAT REASON WE DIDN'T HAVE A COURT REPORTER ON HAND.

11 I WASN'T NOTIFIED THAT THE STATE WAS INTENDING TO MAKE ANY

12 MOTION AT THAT TIME. WE WERE ASKED WHETHER THE COURT INTENDED

13 TO ISSUE A SUA SPONTE STAY, WHICH OF COURSE I WASN'T

14 CONTEMPLATING AND NEITHER PARTY HAD REQUESTED ANYTHING AT THAT

15 POINT.

16

AND I NOTIFIED THE STATE AND THE PLAINTIFFS, WE ENSURED

17 BOTH PARTIES WERE ON THE LINE, NOTIFIED EVERYONE THAT WE WOULD

18 TAKE UP IN URGENT FASHION ANY MOTION THAT ANYONE WISHED TO

19 FILE BUT THAT WE WOULD REQUIRE IT BE IN WRITING SO THAT IT

20 IDENTIFIED THE RELIEF SOUGHT, THE BASIS FOR THAT RELIEF, AND

21 THE STANDARD THAT APPLIES, AND AFFORD THE PLAINTIFFS AN

22 OPPORTUNITY TO RESPOND IN EXPEDITED FASHION. I DON'T KNOW IF

23 YOU WISH TO ADD ANYTHING MORE TO COMPLETE THE RECORD ON THAT

24 ISSUE BEFORE WE FINISH TODAY, AND I'LL ALLOW MS. TOMSIC TO AS

25 WELL IF SHE'D LIKE.

6

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 8

1

BUT IN THE COURT'S VIEW, WE'RE HERE NOW ADDRESSING THE

2 COURT'S STAY. WE HAVE A COMPLICATED STATE OF AFFAIRS. WE

3 HAVE PEOPLE STANDING IN CLERKS' OFFICES RIGHT NOW. WE HAVE

4 THE TENTH CIRCUIT WAITING TO SEE HOW THIS COURT RULES. AND I

5 GUESS THE QUESTION IN MY MIND IS HOW DO WE PROCEED?

6

MR. LOTT: WE'RE HERE TO CONVINCE THE COURT TO ENTER

7 STAY.

8

THE COURT: IF I CONCLUDE, APPLYING THE FACTORS THAT

9 I'M REQUIRED TO ANALYZE IN DETERMINING WHETHER THE STAY SHOULD

10 ISSUE, AND I DETERMINE THAT THE STATE HASN'T SATISFIED ITS

11 BURDEN AS THE MOVING PARTY, IS THERE SOME INTERMEDIATE LEVEL

12 OF RELIEF THAT THE STATE REQUESTS THAT I ENTER?

13

MR. LOTT: YES.

14

THE COURT: WHAT IS THAT?

15

MR. LOTT: IN OUR REPLY MEMORANDUM, THE COURT

16 PROBABLY NOTICED AT THE END, WE'VE REQUESTED AS AN ALTERNATIVE

17 IF THE COURT DOES NOT ENTER A STAY, A PERMANENT STAY, THAT THE

18 COURT ENTER AT LEAST A STAY UNTIL THE TENTH CIRCUIT COURT OF

19 APPEALS MAKES A FINAL DECISION ON THE MOTION BEFORE IT. THE

20 MOTION THAT WAS BEFORE THE TENTH CIRCUIT TO THIS POINT IN TIME

21 WAS AN EMERGENCY MOTION REQUESTING A STAY PENDING THIS COURT'S

22 RULING. THAT'S BEEN DENIED, AS WE'RE AWARE NOW, WITHOUT

23 PREJUDICE, AND THE STATE IS GOING TO REFILE AFTER THIS HEARING

24 TODAY DEPENDING ON WHAT THE COURT'S DECISION IS.

25

SO AS AN ALTERNATIVE RELIEF, IF THE COURT DECIDES NOT TO

7

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 9

1 ISSUE A PERMANENT STAY PENDING APPEAL, THE ALTERNATIVE REQUEST

2 IS THAT THE COURT AT LEAST GRANT A STAY UNTIL THE TENTH

3 CIRCUIT DECIDES. AND THERE IS PRECEDENCE FOR THAT. JUDGE

4 WALKER IN THE PROPOSITION 8 PERRY CASE GRANTED THAT RELIEF.

5

AS THE COURT HAS NOTED, THERE IS A CLOUD OF UNCERTAINTY

6 OVER SAME-SEX MARRIAGES THAT HAVE CURRENTLY TAKEN PLACE. THE

7 COURT CAN STOP THIS CHAOTIC SITUATION FROM CONTINUING BY

8 PLACE -- BY STAYING ITS ORDER PENDING APPEAL.

9

NO ONE WINS, NOT UTAH, NOT THE PLAINTIFFS, NOR ANY

10 SAME-SEX COUPLES IF UTAH'S MARRIAGE LAWS ARE CHANGED BACK AND

11 FORTH DURING THE PENDENCY OF THIS PROCEEDING, DEPENDING ON

12 WHICH COURT IS REVIEWING THE QUESTION. ON SUCH AN IMPORTANT

13 SOCIAL ISSUE, THE STATUS QUO SHOULD REMAIN INTACT OF -- OF A

14 STAY BEING IN PLACE UNTIL -- UNTIL THERE'S BEEN APPELLATE

15 REVIEW.

16

THERE'S GREAT IRONY IN THE FACT THAT THE -- TO BE ALLOWED

17 TO BECOME A STATE UTAH WAS COMPELLED BY THE FEDERAL GOVERNMENT

18 TO ADOPT A DEFINITION OF MARRIAGE AS BEING A UNION OF ONE MAN

19 AND ONE WOMAN, AND NOW THE FEDERAL DISTRICT COURT HAS IMPOSED

20 UPON UTAH TO ABANDON THAT TRADITIONAL DEFINITION AND HAS

21 ORDERED UTAH TO CHANGE ITS DEFINITION OF MARRIAGE TO INCLUDE

22 SAME-SEX MARRIAGE.

23

THE COURT DECISION REACHES CONCLUSIONS UNPRECEDENTED IN

24 THE TENTH CIRCUIT AND SUPREME COURT. NEITHER THE TENTH

25 CIRCUIT NOR THE SUPREME COURT HAS EVER HELD THAT THE STATE IS

8

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 10

1 CONSTITUTIONALLY PROHIBITED FROM DEFINING MARRIAGE AS ONLY THE

2 UNION BETWEEN A MAN AND A WOMAN. NEITHER THE TENTH CIRCUIT

3 NOR THE SUPREME COURT HAS EVER HELD THAT THE FUNDAMENTAL RIGHT

4 TO MARRY INCLUDES SAME-SEX MARRIAGE. NEITHER THE TENTH

5 CIRCUIT OR THE SUPREME COURT HAS EVER HELD THAT A

6 TRADITIONAL -- THE TRADITIONAL DEFINITION OF MARRIAGE SOMEHOW

7 CONSTITUTES GENDER DISCRIMINATION. AND NEITHER THE TENTH

8 CIRCUIT NOR THE SUPREME COURT HAS EVER HELD THAT TRADITIONAL

9 MAN/WOMAN MARRIAGE IS IRRATIONAL, DISCRIMINATORY OR

10 UNCONSTITUTIONAL.

11

IN FACT THE TWO MOST RECENT FEDERAL DISTRICT COURTS THAT

12 HAVE CONSIDERED AND RULED ON THE CONSTITUTIONALITY OF THE

13 STATE'S LAWS LIMITING MARRIAGE TO THE LEGAL UNION BETWEEN A

14 MAN AND A WOMAN, BOTH IN THE NINTH CIRCUIT, HAVE REACHED A

15 DIFFERENT CONCLUSION THAN THIS COURT HAS REACHED. THOSE ARE

16 THE JACKSON CASE FROM HAWAII AND THE SEVCICK CASE FROM NEVADA.

17

MOREOVER, THE ONLY FEDERAL CIRCUIT COURT TO SQUARELY RULE

18 ON THIS ISSUE, THE EIGHTH CIRCUIT, HAS UPHELD THE

19 CONSTITUTIONALITY OF THE TRADITIONAL DEFINITION OF MARRIAGE.

20 THAT'S THE BRUNING CASE.

21

AND THOSE DECISIONS DO NOT STAND ALONE. AS CITED IN THE

22 STATE DEFENDANTS' COURT PLEADINGS, MANY OTHER COURTS HAVE

23 CONCLUDED THAT THE OPPOSITE-SEX DEFINITION OF MARRIAGE

24 RATIONALLY SERVES SOCIETY'S INTERESTS IN REGULATING SEXUAL

25 RELATIONSHIPS BETWEEN MEN AND WOMEN SO THAT THE UNIQUE

9

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 11

1 PROCREATIVE CAPACITY OF THOSE RELATIONSHIPS BENEFITS RATHER

2 THAN HARMS SOCIETY.

3

INSTEAD OF CONSIDERING AND BASING ITS DECISION ON THE

4 MAJORITY OPINION IN THE WINDSOR CASE, THE DISTRICT COURT

5 QUOTES AND CITES AS CONCLUSIVE AUTHORITY THE CYNICAL

6 OBSERVATION AND DISSENT OF JUSTICE SCALIA OF WHAT THE SUPREME

7 COURT'S VIEW WOULD BE IF CONSIDERING STATE MARRIAGE LAWS. THE

8 DISTRICT COURT'S APPROACH IS IN EFFECT TO JUMP THE GUN AND TO

9 JOIN JUSTICE SCALIA IN SPECULATING ABOUT WHAT THE SUPREME

10 COURT WOULD DO BEFORE IT HAS ACTUALLY RULED ON THIS ISSUE.

11

THE COURT: WELL, THAT'S WHAT I WAS CALLED TO DO IN

12 THIS CASE, WAS I NOT, TO DETERMINE AS BEST I COULD WHAT

13 GUIDANCE THE SUPREME COURT WAS PROVIDING ON THIS ISSUE? AND

14 WHILE I WISH I WASN'T THE FIRST COURT IN THE NATION TO WEIGH

15 IN ON THAT AFTER THE WINDSOR DECISION, ISN'T THE -- ISN'T THE

16 DISSENTING VIEW MAYBE THE -- MAYBE THE BEST PLACE TO LOOK TO

17 SEE WHAT THE PEOPLE ON THE LOSING SIDE OF THAT PROPOSITION

18 BEFORE THE SUPREME COURT THOUGHT THE EFFECT OF THE COURT'S

19 RULING WAS?

20

IT'S NOT CLEAR, OF COURSE, IN THE WINDSOR DECISION, AS

21 WE'VE DISCUSSED AT ORAL ARGUMENT. THE WINDSOR COURT DIDN'T

22 ANSWER THIS QUESTION. SO WE'RE FORCED TO READ THE TEA LEAVES

23 AND DO THE BEST WE CAN WITH THAT DECISION. THE STATE CLEARLY

24 DISAGREES. BUT MY -- MY DECISION DOESN'T REST ON THE MINORITY

25 OPINION OF JUSTICE SCALIA OR THE DISSENTS IN THE WINDSOR CASE.

10

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 12

1 IT'S NOT A BAD PLACE TO LOOK TO SEE WHAT THE SUPREME COURT

2 JUSTICES THEMSELVES THINK OF THE DECISION THOUGH, IS IT?

3

MR. LOTT: THE STATE IS RESPECTFULLY TRYING TO POINT

4 OUT THE LIKELIHOOD OF SUCCESS ON APPEAL.

5

THE COURT: OKAY, VERY GOOD, THANK YOU. GO AHEAD.

6

MR. LOTT: THE DISTRICT COURT CONCEDES IN ITS

7 OPINION THAT, QUOTE, THE COURT'S ROLE IS TO NOT DEFINE

8 MARRIAGE, AN EXERCISE THAT WOULD BE IMPROPER GIVEN THE STATE'S

9 PRIMARY AUTHORITY IN THIS REALM. AND THAT'S IN THE OPINION AT

10 PAGE 16, THE COURT'S DECISION AT PAGE 16. AND THEN THE COURT

11 PROCEEDS TO DO EXACTLY THAT, TO REDEFINE MARRIAGE IN SUCH A

12 BROAD WAY TO ENCOMPASS SAME-SEX MARRIAGE.

13

THE DISTRICT COURT CITES TO AND APPLIES SUPREME COURT

14 PRECEDENT RECOGNIZING THE FUNDAMENTAL RIGHT TO MARRY --

15 RECOGNIZING A FUNDAMENTAL RIGHT TO MARRY IN CASES THAT

16 UNIVERSALLY INVOLVE MARRIAGE BETWEEN A MAN AND A WOMAN AS

17 THOUGH THE GENDER OF THE SPOUSE IS IRRELEVANT. THE COURT

18 CONCLUDES, QUOTE, THE PLAINTIFFS HERE DO NOT SEEK A NEW RIGHT

19 TO SAME-SEX MARRIAGE, BUT INSTEAD ASK THE COURT TO HOLD THAT

20 THE STATE CANNOT PROHIBIT THEM FROM EXERCISING THEIR EXISTING

21 RIGHT TO MARRY ON ACCOUNT OF THE SEX OF THEIR CHOSEN PARTNER,

22 AT PAGE 28 OF THE DECISION.

23

BY REFUSING TO RECOGNIZE THE TRADITIONAL MAN/WOMAN

24 MARRIAGE, THAT TRADITIONAL MAN/WOMAN MARRIAGE IS MATERIALLY

25 DIFFERENT FROM SAME-SEX MARRIAGE, THE COURT SIDESTEPS THE

11

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 13

1 HOLDING OF THE WASHINGTON V. GLUCKSBERG CASE THAT SETS FORTH

2 THE ESTABLISHED METHOD OF SUBSTANTIVE DUE PROCESS ANALYSIS.

3

THE COURT STATES, QUOTE, BECAUSE THE RIGHT TO MARRY HAS

4 ALREADY BEEN ESTABLISHED AS A FUNDAMENTAL RIGHT, THE COURT

5 FINDS THAT THE GLUCKSBERG ANALYSIS IS INAPPLICABLE HERE, AT

6 PAGE 29.

7

IN THE DISTRICT COURT'S VIEW, TRADITION AND HISTORY ARE

8 INSUFFICIENT REASONS TO DENY FUNDAMENTAL RIGHTS TO AN

9 INDIVIDUAL. THE COURT'S REFUSAL TO CONSIDER HISTORY AND

10 TRADITION, HOWEVER, GO FAR BEYOND WHAT EVEN THE LAWRENCE CASE

11 CONTEMPLATED. THERE IN THE LAWRENCE CASE THE COURT STATED, WE

12 THINK OUR LAWS AND TRADITIONS OF THE PAST HALF-CENTURY ARE OF

13 THE MOST RELEVANCE HERE.

14

THE RELEVANT HISTORY AND TRADITION REGARDING SAME-SEX

15 MARRIAGE IS MUCH SHORTER THAN THAT, MUCH SHORTER THAN THE PAST

16 HALF-CENTURY. NO STATE PERMITTED SAME-SEX MARRIAGE UNTIL

17 2003. EVEN ABROAD, NO FOREIGN NATION ALLOWED SAME-SEX

18 MARRIAGE UNTIL THE NETHERLANDS IN 2000. IN THE LAST TEN YEARS

19 OF THIS NATION'S 237 YEAR HISTORY, ONLY A MINORITY OF STATES

20 HAVE PERMITTED SAME-SEX MARRIAGE, AND NEARLY ALL OF THOSE HAVE

21 DONE SO BY THE DEMOCRATIC PROCESS RATHER THAN BY JUDICIAL

22 DECREE.

23

THE DISTRICT COURT IN THE STATE'S OPINION HAS FAILED TO

24 EXERCISE THE UTMOST CARE THAT'S REQUIRED BY THE GLUCKSBERG

25 ANALYSIS. THE DISTRICT COURT'S DECISION PLACES THE MATTER

12

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 14

1 OUTSIDE THE ARENA OF PUBLIC DEBATE AND LEGISLATIVE ACTION AND

2 CONSTITUTES POLICY PREFERENCE OF THE COURT. THE DISTRICT

3 COURT'S DECISION IS A FUNDAMENTAL SHIFT AWAY FROM SOCIETY'S

4 UNDERSTANDING OF WHAT MARRIAGE IS AND OVERRIDES THE DEMOCRATIC

5 VOICE OF THE PEOPLE OF UTAH.

6

THE DISTRICT COURT ALSO HELD THAT MAN/WOMAN -- THE

7 MAN/WOMAN DEFINITION OF MARRIAGE IS GENDER DISCRIMINATION, AND

8 THE STATE OBVIOUSLY DISAGREES WITH THAT CONCLUSION.

9

THE COURT ALSO WRONGLY CONCLUDED THAT UTAH'S MARRIAGE

10 LAWS DO NOT EVEN SATISFY THE MINIMAL REQUIREMENTS OF A

11 RATIONAL BASIS TEST. NUMEROUS STATE AND FEDERAL COURT'S AT

12 THE TRIAL AND APPELLATE COURT LEVELS HAVE REACHED THE OPPOSITE

13 CONCLUSION. THESE COURTS HAVE FOUND THAT THE TRADITIONAL

14 DEFINITION OF MARRIAGE IS RATIONALLY RELATED TO LEGITIMACY AND

15 INTEREST, AND EVEN THAT MAN/WOMAN MARRIAGE PROMOTES THE

16 STATE'S COMPELLING INTEREST IN THE CARE AND WELL-BEING OF

17 CHILDREN BY FACILITATING RESPONSIBLE PROCREATION AND THE IDEAL

18 MODE OF CHILD REARING.

19

THE VERY FACT THAT SO MANY OTHER COURTS HAVE FOUND THE

20 TRADITIONAL DEFINITION OF MARRIAGE TO SATISFY RATIONAL BASIS

21 REVIEW IS REASON ENOUGH TO CONCLUDE THAT THE STATE DEFENDANTS

22 HAVE SUFFICIENT LIKELIHOOD OF SUCCESS ON APPEAL TO WARRANT

23 STAY PENDING APPEAL.

24

THE STATE ALSO BELIEVES THE COURT DID NOT PROPERLY FRAME

25 THE ISSUE BEFORE IT. THE SUPREME COURT HAS HELD THAT A

13

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 15

1 CLASSIFICATION SUBJECT TO RATIONAL BASIS REVIEW WILL BE UPHELD

2 WHEN THE INCLUSION OF ONE GROUP PROMOTES A LEGITIMATE

3 GOVERNMENTAL PURPOSE AND THE ADDITION OF OTHER GROUPS WOULD

4 NOT. THAT'S THE JOHNSON V. ROBISON CASE.

5

AND AS THE FEDERAL DISTRICT COURT IN THE HAWAII JACKSON

6 CASE EXPLAINED, THE STATE IS NOT REQUIRED TO SHOW THAT DENYING

7 MARRIAGE TO SAME-SEX COUPLES IS NECESSARY TO PROMOTE THE

8 STATE'S INTEREST OR THAT SAME-SEX COUPLES WILL SUFFER NO HARM

9 BY AN OPPOSITE-SEX DEFINITION OF MARRIAGE. RATHER, THE

10 RELEVANT QUESTION IS WHETHER AN OPPOSITE-SEX DEFINITION OF

11 MARRIAGE FURTHERS A LEGITIMATE INTEREST THAT WOULD NOT BE

12 FURTHERED, OR FURTHERED TO THE SAME DEGREE, BY ALLOWING

13 SAME-SEX COUPLES TO MARRY.

14

THE DISTRICT COURT'S DECISION CONSTITUTES A FUNDAMENTAL

15 SHIFT AWAY FROM SOCIETY'S UNDERSTANDING OF WHAT MARRIAGE IS.

16 FOR OVER 100 YEARS UTAH HAS ALWAYS ADHERED TO A DEFINITION OF

17 MARRIAGE AS THE UNION OF A MAN AND A WOMAN AND HAS NEVER

18 RECOGNIZED A MARRIAGE OF ANY OTHER KIND. AND UTAH DOES NOT

19 STAND ALONE, A MAJORITY OF STATES ADHERE TO THE SAME

20 DEFINITION OF MARRIAGE.

21

AS THE SUPREME COURT RECOGNIZED IN GLUCKSBERG, EXTENDING

22 CONSTITUTIONAL PROTECTION TO AN ASSERTED RIGHT OR LIBERTY

23 INTEREST TO A GREAT EXTENT PLACES THE MATTER OUTSIDE THE ARENA

24 OF PUBLIC DEBATE AND LEGISLATIVE ACTION. THE DISTRICT COURT'S

25 DECISION HAS TAKEN THE IMPORTANT PUBLIC POLICY QUESTION OF

14

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 16

1 SAME-SEX MARRIAGE AWAY FROM THE PEOPLE OF UTAH AND AS SUCH

2 CONSTITUTES A THREAT OF IRREPARABLE HARM TO THE DEMOCRATIC

3 PROCESS IN UTAH.

4

WE CITED TO THE COURT THE CASE OF COALITION FOR ECONOMIC

5 EQUITY VERSUS WILSON, WHICH HELD IT IS CLEAR THAT A STATE

6 SUFFERS IRREPARABLE INJURY WHENEVER AN ENACTMENT OF ITS PEOPLE

7 IS ENJOINED.

8

THE COURT: IS THERE ALSO IRREPARABLE HARM WHEN

9 CITIZENS ARE DEPRIVED CONSTITUTIONAL RIGHTS? I MEAN I

10 UNDERSTAND THE STATE BELIEVES THAT I INCORRECTLY CONCLUDED

11 THAT THERE'S A FUNDAMENTAL RIGHT TO MARRY, AND WE WON'T KNOW

12 UNTIL ANOTHER COURT ABOVE ME SOUNDS IN ON THAT ISSUE. BUT

13 HAVING CONCLUDED THAT THAT'S A CONSTITUTIONAL RIGHT THAT ALL

14 OF THE CITIZENS OF THE STATE ENJOY, IS THERE IRREPARABLE HARM

15 TO CITIZENS WHEN WE DISALLOW THEM FROM ENJOYING A

16 CONSTITUTIONAL RIGHT?

17

MR. LOTT: AS A GENERAL PROPOSITION I WOULD AGREE,

18 BUT AS THE COURT KNOWS, THE STATE DISAGREES WHETHER THERE'S A

19 CONSTITUTIONAL RIGHT TO SAME-SEX MARRIAGE.

20

THE CASE CITED ALSO --

21

THE COURT: HOW DO WE -- HOW DO WE RESOLVE THAT

22 QUESTION IN YOUR MIND? HAVING CONCLUDED THAT THERE ARE

23 CONSTITUTIONAL RIGHTS AT ISSUE HERE, AND THAT THOSE RIGHTS ARE

24 BEING DEPRIVED -- SOME CITIZENS OF THE STATE ARE BEING

25 DEPRIVED OF THE ENJOYMENT OF THOSE RIGHTS, AND THEN THE

15

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 17

1 STATE'S INTEREST IN, AS YOU FRAMED IT, ALLOWING THE STATE TO

2 MAKE THESE POLICY CONSIDERATIONS THROUGH THE VOICE OF THE

3 ELECTORATE, HOW DO WE BALANCE THOSE HARMS IN YOUR VIEW IN

4 DETERMINING WHETHER A STAY SHOULD ISSUE?

5

MR. LOTT: WE'VE POINTED OUT TO THE COURT THAT FROM

6 OUR PERSPECTIVE THE HARM TO THE PLAINTIFFS AND ALSO TO

7 SAME-SEX COUPLES THAT WISH TO MARRY IF ANYTHING WOULD BE

8 DELAYED. THE APPELLATE COURT IS GOING TO REVIEW THIS COURT'S

9 DECISION, AND IF THE APPEAL IS UPHELD, IT PUTS THOSE THAT HAVE

10 ENTERED INTO A MARRIAGE INTO AN UNCOMFORTABLE SITUATION WHERE

11 THEIR MARRIAGES MOST LIKELY WOULD BE VOID. AND THE WAY TO

12 AVOID THAT SITUATION FROM OCCURRING TO THE BENEFIT OF EVERYONE

13 IS TO ENTER A STAY.

14

THE COURT: IT'S THE STATE'S POSITION THAT IF MY

15 RULING IS REVERSED ON APPEAL, THAT ANY MARRIAGE -- ANY

16 MARRIAGE LICENSES THAT ISSUED IN THE INTERIM WOULD BE VOID; IS

17 THAT RIGHT?

18

MR. LOTT: THAT'S CORRECT.

19

THE COURT: SO THEN WHAT IS THE HARM TO THE STATE?

20 WHAT IS THE IRREPARABLE INJURY TO THE STATE IF THE EFFECT OF A

21 REVERSAL IS THAT THERE WERE NO VALID MARRIAGES PERFORMED?

22

MR. LOTT: WELL, THE STATE IS CONCERNED WITH ALL OF

23 ITS CITIZENS, NOT ONLY THOSE THAT -- THAT DO NOT WANT TO HAVE

24 SAME-SEX MARRIAGE. IT ALSO INCLUDES AN INTEREST TO THOSE THAT

25 WANT SAME-SEX MARRIAGE, AND THERE'S A CONCERN FOR THOSE

16

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 18

1 CITIZENS OF THE STATE AS WELL. THAT'S -- THAT'S APART FROM

2 THE CONCERN THE STATE HAS IN HAVING ITS DEMOCRATIC VOICE

3 RECOGNIZED.

4

I WAS GOING TO QUOTE JUSTICE RENQUIST. HE STATED, IT

5 ALSO SEEMS TO ME THAT ANYTIME A STATE IS ENJOINED BY A COURT

6 FROM EFFECTUATING STATUTES ENACTED BY REPRESENTATIVES OF ITS

7 PEOPLE, IT SUFFERS A FORM OF IRREPARABLE INJURY.

8

THE STATE, AS WE POINTED OUT, ALSO FACES ADMINISTRATIVE

9 BURDENS DURING THIS PERIOD OF UNCERTAINTY. AND ALSO ACTIONS

10 THAT WOULD BE TAKEN IN RELIANCE OF MARRIAGE BY THIRD PARTIES,

11 BY EMPLOYERS, CREDITORS, OTHERS, ALSO ARE GOING TO BE

12 IMPACTED. THE PUBLIC ALSO HAS AN INTEREST IN CERTAINTY AND IN

13 ORDER AND IN AVOIDING UNNECESSARY EXPENDITURES.

14

WE HAVE ALSO IN OUR REPLY THAT WE FILED THIS MORNING HAVE

15 ADDRESSED THE -- THE THREE CASES THAT THE PLAINTIFFS CITE POST

16 WINDSOR, AND WE HAVE DISTINGUISHED THOSE CASES. THE NEW

17 JERSEY CASE, OF COURSE, WAS BASED UPON NEW JERSEY STATE LAW.

18 IT'S A CASE THAT ARISES FROM NEW JERSEY STATE COURTS APPLYING

19 THEIR STANDARDS FOR A STAY, WHICH ARE NOT THE SAME AS IN

20 FEDERAL COURT.

21

AND THE NEW MEXICO CASE INVOLVES A STATE WHERE THERE IS

22 NO LAW EITHER PROHIBITING OR GRANTING THE RIGHT OF SAME-SEX

23 MARRIAGE, SO IT'S AN ENTIRELY DIFFERENT SITUATION. AND THE

24 CASE FROM ILLINOIS INVOLVES A STATE STATUTE THAT HAS ALREADY

25 ADOPTED SAME-SEX MARRIAGE, AND A COUPLE FILING THE MOTION

17

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 19

1 SIMPLY WANTED TO MARRY BEFORE THE STATUTE WENT INTO EFFECT,

2 WHICH IS VERY DIFFERENT FROM THE SITUATION WE FACE HERE.

3

THE MOST APPLICABLE EXAMPLE THAT WE WOULD URGE THE COURT

4 TO FOLLOW IS THAT OF THE NINTH CIRCUIT AND THE DISTRICT COURT

5 IN PERRY V. BROWN PROPOSITION 8 CASE. JUDGE WALKER GRANTED A

6 STAY PENDING A DECISION FROM THE NINTH CIRCUIT AS TO WHETHER

7 THEY WERE GOING TO GRANT A STAY, AND THE NINTH CIRCUIT DID

8 GRANT A STAY IN THAT CASE, IN THE PROPOSITION 8 LITIGATION.

9 SO WE WOULD URGE THE COURT TO FOLLOW THAT EXAMPLE.

10

THANK YOU, YOUR HONOR.

11

THE COURT: THANK YOU, MR. LOTT. WE'LL HEAR AGAIN

12 FROM YOU BEFORE WE CONCLUDE.

13

MS. TOMSIC.

14

MS. TOMSIC: GOOD MORNING, YOUR HONOR.

15

THE COURT: GOOD MORNING.

16

MS. TOMSIC: YOUR HONOR, FUNDAMENTALLY THE STATE IS

17 ASKING YOU TO LOOK BACKWARD AND TO NOT -- DENY PLAINTIFFS'

18 MOTION FOR SUMMARY JUDGMENT AND TO GRANT THEIR MOTION ON

19 EXACTLY THE SAME MERIT GROUNDS THAT THEY ARGUED IN TENS OF

20 PAGES OF BRIEFING DURING ALMOST FOUR HOURS OF ORAL ARGUMENT

21 THAT THIS COURT SOUNDLY AND DEFINITIVELY REJECTED IN A

22 WELL-REASONED FOUNDATIONALLY SUPPORTED DECISION.

23

THERE IS NOT A SINGLE ISSUE FROM A LEGAL STANDPOINT THAT

24 THE STATE HAS RAISED, EITHER IN ITS WRITTEN PAPERS BEFORE THIS

25 COURT OR IN THE ORAL ARGUMENT THAT HAS NOW BEEN MADE BEFORE

18

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 20

1 YOUR HONOR, THAT WOULD JUSTIFY THIS COURT FINDING THAT THERE

2 IS NOT ONLY A LIKELIHOOD OF YOUR HONOR BEING REVERSED ON

3 APPEAL, BUT THE STANDARD IN THIS DISTRICT REQUIRES THE STATE

4 TO SHOW, MAKE A STRONG SHOWING -- IT IS NOT JUST A SHOWING, AS

5 IT IS IN A PRELIMINARY INJUNCTION, IT IS A STRONG SHOWING.

6 AND THERE IS GOOD REASON FOR THAT REQUIREMENT, YOUR HONOR.

7

THE REASON THAT REQUIREMENT EXISTS, AND PARTICULARLY IN A

8 SITUATION LIKE THIS CASE, IS THAT WE HAVE A DECISION FROM YOUR

9 HONOR THAT IS NOT A PRELIMINARY INJUNCTION. WE HAVE A

10 DECISION FROM THIS COURT THAT ACTUALLY SORT OF FLOWED OUT OF

11 THE STATE ASKING THIS COURT TO DECIDE THE ISSUE ON SUMMARY

12 JUDGMENT. IT IS A DECISION THAT IS PREDICATED ON BOTH SIDES

13 HAVING AN AMPLE OPPORTUNITY TO PUT THEIR BEST FOOT FORWARD, TO

14 PUT THEIR BEST ARGUMENTS, THEIR BEST UNDISPUTED FACTS, THEIR

15 BEST LEGAL AUTHORITIES, AND WE DID THAT, YOUR HONOR.

16

STARTING ON OCTOBER 22ND -- OR EXCUSE ME -- 11TH OF THIS

17 YEAR WE PROVIDED YOUR HONOR MAYBE WITH WE COULD CALL IT A

18 MOUNTAIN OF PAPER, WHERE EACH SIDE HAD A FULL OPPORTUNITY TO

19 ADVISE YOUR HONOR OF HOW WE BELIEVED YOU SHOULD RULE. AND

20 THEN ON NOVEMBER 22ND WE INUNDATED YOU WITH FURTHER PAGES

21 EXPLAINING WHY THE OTHER SIDE'S POSITION WAS FUNDAMENTALLY

22 WRONG AS A MATTER OF LAW. AND THEN YOUR HONOR GAVE US AMPLE

23 TIME. YOU SAID THIS IS AN IMPORTANT ISSUE. I AM GIVING BOTH

24 SIDES ALL THE TIME THEY NEED IN ORAL ARGUMENT TO HELP ME MAKE

25 THE RIGHT DECISION.

19

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 21

1

AFTER THAT PROCESS, WHERE YOU HAVE A PERMANENT

2 DECISION -- OR INJUNCTION DECLARING WHAT THE LAW IN UTAH IS, A

3 COURT REQUIRES MORE THAN SIMPLY A REARGUMENT OF THE POSITIONS

4 THAT WERE REJECTED AND DENIED IN THE FIRST PLACE. IF THAT

5 WERE NOT TRUE, EVERY TIME A COURT ISSUES AN ORDER, A

6 PRELIMINARY INJUNCTION OR A PERMANENT INJUNCTION, THE STATE

7 COULD SIMPLY MEET THAT MANDATORY REQUIREMENT BY REARGUING THE

8 SAME POSITIONS AND SAYING, GOSH, YOUR HONOR, YOU GOT IT WRONG

9 THE FIRST TIME. YOU BETTER AGREE WITH US NOW. WELL, THAT'S

10 NOT THE STANDARD AND THE STATE HASN'T MET IT.

11

AND WHAT'S IMPORTANT, YOUR HONOR, IS WHAT YOU'VE HEARD IN

12 THEIR PAPERS, AND WHAT YOU HEARD MR. LOTT SAY IN THIS CASE IS,

13 GEE, JUDGE, YOU OUGHT TO GRANT US A MOTION TO STAY BECAUSE

14 THIS IS A DIVISIVE AND IMPORTANT PUBLIC STATE INTEREST.

15

THE COURT: THAT SEEMS A REASONABLE REQUEST, DOES

16 IT?

17

MS. TOMSIC: ABSOLUTELY NOT, YOUR HONOR. IF THAT

18 WERE THE STANDARD, THE TENTH CIRCUIT WOULD NOT HAVE MANDATORY

19 FACTORS. THE IMPORTANCE OF THAT PARTICULAR FACTOR IS ONLY ONE

20 OF THEM, AND THAT IS THE PUBLIC'S INTEREST. AND, YOUR HONOR,

21 YOU KNOW BETTER THAN I DO BECAUSE YOU WROTE YOUR DECISION, ONE

22 OF THE ARGUMENTS THAT THE STATE MADE AS TO WHY YOU SHOULD DENY

23 OUR MOTION FOR SUMMARY JUDGMENT AND GRANT THEIRS IS PROCEEDING

24 WITH CAUTION. THIS IS JUST A REPACKAGED AND DRESSED-UP

25 VERSION OF THAT ARGUMENT, WHICH YOU HAVE ALREADY REJECTED.

20

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 22

1

AND TO SAY, JUDGE, THIS IS IMPORTANT SO LET'S IGNORE ALL

2 THE OTHER FACTORS THAT ARE MANDATORY. THEY'RE NOT SUGGESTED,

3 LIKE, OH, GEE, LOOK AT THESE, BUT IF YOU DON'T THINK THEY

4 APPLY, GO AHEAD AND ISSUE A STAY BECAUSE IT'S IMPORTANT.

5 THAT'S NOT THE LAW. AND THE REASON THEY MAKE THAT IMPASSIONED

6 PLEA IS BECAUSE THEY CANNOT AND HAVE NOT MET THE MANDATORY

7 FACTORS THAT THE TENTH CIRCUIT REQUIRES THIS COURT TO APPLY.

8

THE COURT: IF I AGREE WITH YOU, WHAT AM I TO MAKE

9 OF THE STATE'S ALTERNATIVE REQUEST THAT WE AT LEAST IMPOSE A

10 TEMPORARY STAY TO ALLOW THE TENTH CIRCUIT TO DECIDE HOW IT

11 WISHES TO PROCEED?

12

MS. TOMSIC: YOUR HONOR, NUMBER ONE, A REQUEST THAT

13 THIS COURT DO TEMPORARILY WHAT IT CAN'T DO PERMANENTLY IS NO

14 BETTER THAN THE INITIAL REQUEST. YOU STILL HAVE TO MAKE A

15 DEMONSTRATION WARRANTING A STAY, AND THE TENTH CIRCUIT TWICE

16 NOW HAS TOLD THESE GUYS WE'RE NOT GOING TO DO THAT, AND IT

17 WOULD BE WHOLLY IMPROPER FOR THIS COURT TO DO IT.

18

AND THEY TALK ABOUT THIS CLOUD OF CONFUSION. WELL, THE

19 CLOUD OF CONFUSION, WHICH I'LL GET TO, IS IN THEIR MINDS.

20 IT'S NOT IN ANYBODY ELSE'S. BUT THE BOTTOM LINE IS, YOUR

21 HONOR, THE STATUS QUO IN THIS CASE, THE LAW IN THIS

22 JURISDICTION RIGHT NOW IS YOUR ORDER. AND --

23

THE COURT: I THINK THIS IS MR. LOTT'S POINT. BUT

24 MY ORDER IS ONLY THE FIRST RULING IN THIS CASE. IT IS

25 CERTAINLY NOT GOING TO BE THE LAST. I THINK THE STATE'S POINT

21

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 23

1 IS EXACTLY THAT, SHOULDN'T WE ALLOW SOMEBODY ABOVE ME TO WEIGH

2 IN ON THAT?

3

MS. TOMSIC: YOUR HONOR, THEY'RE GOING TO WEIGH IN

4 ON IT, AND YOU KNOW WHAT, NOTHING IS GOING TO CHANGE BETWEEN

5 NOW AND THERE, NOTHING. I MEAN WHAT THE STATE HAS TO SHOW

6 EVEN FOR A TEMPORARY STAY -- WHICH THEY HAVEN'T CITED

7 AUTHORITY. THEY WENT TO JUDGE WALKER'S OPINION IN THE PROP 8

8 CASE. JUDGE, BUT REMEMBER, HIS OPINION WAS BEFORE WINDSOR.

9 IT WAS BEFORE ALL THESE OTHER CASES THAT HAVE COME DOWN AFTER

10 WINDSOR. IT'S NOT A TENTH CIRCUIT DECISION.

11

THE COURT: BUT WINDSOR DIDN'T ANSWER THE QUESTION

12 THAT THIS CASE PRESENTED TO ME. AND I DID THE BEST I COULD TO

13 INTERPRET HOW I THOUGHT I WAS SUPPOSED TO RULE IN LIGHT OF

14 WINDSOR. BUT MR. LOTT IS CORRECT, THE STATE OF UTAH IS

15 CORRECT, RIGHT, THE TENTH -- NEITHER THE TENTH CIRCUIT NOR THE

16 SUPREME COURT HAS ANSWERED THE QUESTION THAT I WAS REQUIRED TO

17 ANSWER IN THIS CASE?

18

MS. TOMSIC: YOUR HONOR, I WOULD ABSOLUTELY BE

19 CANDID AND AGREE WITH YOU, BUT WOULD YOU TELL ME A SINGLE CASE

20 IN THIS CIRCUIT OR FROM THE SUPREME COURT WHERE A COURT HAD

21 SAID, GOSH, IF YOUR CIRCUIT HASN'T RULED, AND THE SUPREME

22 COURT HASN'T RULED, YOU BETTER GRANT A STAY? BECAUSE YOU KNOW

23 WHAT, IF THAT WAS THE STANDARD, WE WOULD HAVE STAYS ISSUED

24 ALMOST IN EVERY CASE. EVERY CASE STANDS ON ITS OWN. THAT

25 ISN'T THE STANDARD, YOUR HONOR, AND THERE ISN'T A CASE THAT

22

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 24

1 STANDS FOR THAT PROPOSITION.

2

YOUR HONOR, HAD YOU BELIEVED THAT THERE SHOULD BE A STAY

3 IN PLACE, REGARDLESS OF ANY PENDING MOTION, SO THE TENTH

4 CIRCUIT WOULD HAVE AN OPPORTUNITY TO RULE ON THIS ISSUE, IT

5 SURE AS HECK COULD HAVE DONE A TEMPORARY STAY IN ITS ORDER AND

6 IT DIDN'T DO IT. IT DID NOT DO IT, AND THE STATUS QUO HAS

7 CHANGED.

8

THE COURT: WHAT IS THE STATUS QUO?

9

MS. TOMSIC: THE STATUS QUO RIGHT NOW IS THE LAW IN

10 UTAH IS THAT COUNTY CLERKS ARE OBLIGATED TO ISSUE LICENSES TO

11 SAME-SEX COUPLES TO GET MARRIED. SAME-SEX COUPLES ARE GETTING

12 MARRIED, ARE MARRIED. THERE WERE HUNDREDS OF SAME-SEX COUPLES

13 MARRIED BY THE END OF THE DAY ON FRIDAY. THAT IS THE STATUS

14 QUO. AND TO NOW SAY, GOSH, I WAS JUST KIDDING, FOLKS. I'M

15 GOING TO STOP THE IMPORT OF MY RULING, AND LET'S CHANGE IT NOW

16 BACK TO THE WAY IT WAS AND LET THE TENTH CIRCUIT DO IT.

17

THE COURT: IT'S NOT.

18

MS. TOMSIC: WAIT, LET ME JUST --

19

THE COURT: IT'S NOT A QUESTION THAT I WAS KIDDING.

20 IT'S THERE WAS NO MOTION FOR A STAY PENDING BEFORE I ENTERED

21 MY RULING. THERE IS NOW.

22

MS. TOMSIC: AND I UNDERSTAND IT. AND IN THAT

23 INTERIM, THE STATUS QUO HAS CHANGED, YOUR HONOR. AND WHAT THE

24 STATE IS ASKING YOU TO DO IS PUT THEM IN A POSITION WHERE THEY

25 CAN ARGUE TO THE TENTH CIRCUIT, GOSH, JUDGE SHELBY HAS NOW

23

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 25

1 ISSUED AN INTERIM TEMPORARY STAY, EVEN THOUGH THERE'S NO

2 AUTHORITY TO DO THAT. AND GUESS WHAT, THE STATUS QUO IN UTAH

3 NOW IS SAME-SEX COUPLES CAN GET MARRIED, AND WE ARE JUST

4 ASKING YOU TO MAINTAIN THE STATUS QUO. THEY ARE TRYING TO

5 AVOID THEIR BURDEN, WHICH IS YOU SHOW ME HOW THE STATE IS

6 GOING TO BE IRREPARABLY HARMED BY MORE SAME-SEX MARRIAGES

7 OCCURRING. THE STATUS QUO IS THE STATUS QUO.

8

AND I WANT TO COME BACK AND PUT ON THE RECORD, YOUR

9 HONOR, KIND OF THE CHRONOLOGY OF HOW WE GOT HERE. WHEN YOUR

10 HONOR ASKED FOR BRIEFING ON SUMMARY JUDGMENTS, THERE WAS NO

11 QUESTION THAT THERE WAS AN ABSOLUTE RISK AND POSSIBILITY FOR

12 BOTH SIDES THAT YOU WERE GOING TO ISSUE A SELF-EXECUTING

13 OPINION. I MEAN, MY GOSH, JUDGE, YOU DON'T HAVE TO BE MORE

14 THAN A LAW STUDENT TO KNOW THAT.

15

SECOND, WE'VE ALL MADE IT CLEAR, YOUR HONOR IS CLEAR,

16 THIS THING IS NOT GOING TO END HERE, AND WE KNOW THAT. THE

17 APPEAL NOTICE WAS FILED ON FRIDAY. IT'S GOING TO GO TO THE

18 TENTH CIRCUIT FOR FINAL RESOLUTION IN THIS CIRCUIT, UNLESS THE

19 SUPREME COURT GRANTS CERT. AND WE ALL KNOW THAT. YET THE

20 STATE NEVER ONCE RAISED THE ISSUE OF A STAY.

21

AND WE KNEW WHEN WE ENDED OUR HEARING ON DECEMBER 4TH

22 THAT THERE WASN'T GOING TO BE ANY WARNING ABOUT YOUR DECISION

23 COMING OUT. YOU WERE GOING TO ISSUE AN OPINION AND WE WOULD

24 GET IT ELECTRONICALLY. WE KNOW THAT. SO IF THE STATE DID

25 NOTHING TO PROTECT THE STATUS QUO, I THINK THIS COURT CAN

24

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 26

1 INFER THAT IN REALITY IT WAS NOT CONCERNED ABOUT IRREPARABLE

2 HARM.

3

AND I THINK THE OTHER THING THAT'S IMPORTANT, YOUR HONOR,

4 IS WHEN YOUR HONOR ISSUED THIS OPINION, AND IT CAME TO US ALL

5 AT THE SAME TIME ELECTRONICALLY, THE STATE DIDN'T DO ANYTHING

6 FOR A COUPLE OF HOURS. THEY COULD HAVE FILED A STAY. THEY

7 COULD HAVE SAID, JUDGE, MAKE THEM BRIEF IT IN TWO HOURS.

8 LET'S HAVE THIS HEARD NOW. THINGS ARE GOING NUTS. PEOPLE ARE

9 GETTING MARRIED. LET'S DO IT NOW BEFORE THERE'S MORE CHAOS

10 AND HARM, AS THEY CALL IT. THEY DIDN'T DO IT.

11

WHAT HAPPENED INSTEAD IS YOU ON YOUR OWN INITIATIVE

12 PLACED A CONFERENCE CALL AND HAD US ON THE PHONE, AND YOU WERE

13 CRYSTAL CLEAR IN THAT CONFERENCE CALL THAT YOU BELIEVED YOU

14 NEEDED A WRITTEN MOTION SO YOU UNDERSTOOD WHAT THE STANDARDS

15 WERE AND WHETHER THEY WERE MET.

16

AND IF YOU WILL RECALL, WHICH I'M SURE YOU DO, YOUR

17 HONOR, YOU ASKED THE STATE WHEN -- WHAT ARE YOU GOING TO DO?

18 ARE YOU GOING TO FILE A MOTION? WHEN ARE YOU GOING TO FILE

19 IT? I'LL SET AN EXPEDITED BRIEFING SCHEDULE. LET'S GET THIS

20 TAKEN CARE OF.

21

WHAT THE STATE TOLD YOU IS, GOSH, WE DON'T KNOW WHAT

22 WE'RE GOING TO DO OR WHEN. AND WE ENDED THE CALL WITH NO

23 SCHEDULE, NO HEARING, BECAUSE THE STATE IN THE FACE OF MY

24 STATEMENT, JUDGE, PEOPLE ARE GETTING MARRIED, SAME-SEX COUPLES

25 ARE GETTING MARRIED NOW, DID NOTHING, NOTHING. AND WHAT THEY

25

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 27

1 LET THE COUNTY CLERKS, INCLUDING -- EXCLUDING UTAH COUNTY, DO

2 WAS ISSUE MARRIAGE LICENSES TO SAME-SEX COUPLES, ALLOWED THEM

3 TO GET MARRIED, DIDN'T FILE A MOTION FOR A STAY. THEY FILED A

4 MOTION FOR -- OR A NOTICE OF APPEAL. THEY DIDN'T EVEN FILE

5 THEIR MOTION UNTIL AFTER THE OFFICES HAD CLOSED AT ABOUT 8:30

6 AT NIGHT.

7

NOW, IF THIS MOTION WOULD HAVE BEEN A 20 PAGE BLOCKBUSTER

8 INTELLECTUALLY CHALLENGING MOTION, GOSH, MAYBE YOU CAN SAY

9 MAYBE IT'S OKAY THAT THEY WAITED, BUT IT'S A FIVE PAGE MEMO,

10 JUDGE. COME ON. IF THEY WERE WORRIED ABOUT IRREPARABLE HARM

11 AND TRYING TO MAINTAIN SOME STATUS QUO THAT EXISTED BEFORE

12 THIS ORDER, THEY SURE AS HECK HAD THE OPPORTUNITY TO MAKE IT

13 HAPPEN. WELL, THEY DIDN'T. WE'RE IN A SITUATION WHERE WE

14 HAVE A DIFFERENT STATUS QUO. WE NEED TO KEEP THAT STATUS QUO

15 UNLESS A HIGHER COURT DETERMINES THAT IT SHOULD CHANGE.

16

THIS CONCEPT OF PING-PONGING, JUDGE, NOW STAY IT. GOSH,

17 LET'S GO TO THE TENTH CIRCUIT. WHAT IF THEY DON'T STAY IT?

18 THEN WE'RE BACK TO THIS -- I MEAN YOU TALK ABOUT CONFUSION AND

19 UNCERTAINTY. THAT'S EXACTLY WHAT THEY'RE ASKING.

20

AND I WOULD ASK YOUR HONOR TO UPHOLD THE MERITS OF YOUR

21 DECISION, STAND BEHIND THEM, BECAUSE THERE IS NO LIKELIHOOD

22 IT'S GOING TO BE REVERSED ON APPEAL, AND THERE SURE AS HECK

23 ISN'T ANY STRONG SHOWING IT WILL BE REVERSED. AND THE FAILURE

24 TO ESTABLISH THAT FUNDAMENTAL CRITICAL FACTOR IS ABSOLUTELY

25 DEVASTATING TO THIS MOTION. IF YOU CANNOT DEMONSTRATE THAT,

26

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 28

1 YOU ARE NOT ENTITLED TO A STAY AND YOU'RE SURE AS HECK NOT

2 ENTITLED TO UPSET THE STATUS QUO TEMPORARILY WHILE WE HAVE

3 THEM MAKE EXACTLY THE SAME INEFFECTIVE AND MERITLESS ARGUMENTS

4 TO THE TENTH CIRCUIT. PLEASE DO NOT CHANGE THE STATUS QUO

5 BASED ON ARGUMENTS THAT HAVE NO MERIT HERE AND CAN'T MEET THE

6 STANDARDS OF THE TENTH CIRCUIT UNDER RULE 8.

7

BUT LET ME TALK ABOUT THE OTHER FACTORS, YOUR HONOR,

8 BECAUSE IT'S NOT JUST THAT FACTOR. I MEAN THE REASON THEY

9 WANT TO KIND OF CLOUD EVERYTHING AND SAY, GOSH, THERE'S THIS

10 CLOUD OF CONFUSION. YOU NEED TO CLEAR IT UP. WELL, YOU KNOW

11 WHAT, THERE IS NO CLOUD OF CONFUSION. THERE IS A FEDERAL

12 ORDER THAT DECLARES THE LAW IN UTAH. THE COUNTIES, INCLUDING

13 SALT LAKE COUNTY, HAS NO QUESTION ABOUT WHAT THEIR OBLIGATION

14 TO FOLLOW THE LAW IS. THEY'RE DOING EXACTLY WHAT THE LAW IS,

15 AS I UNDERSTAND MOST OF THE OTHER COUNTIES IN THIS STATE ARE

16 DOING, OTHER THAN UTAH COUNTY.

17

AND, YOUR HONOR, WHILE I'M ON THIS, WHILE IT'S A LITTLE

18 BIT OF AN OFF POINT, IT'S SOMETHING I WANT IN THIS RECORD.

19 THE DEFENDANT GOVERNOR HERBERT IN THIS CASE ON SATURDAY -- MAY

20 I APPROACH?

21

THE COURT: PLEASE.

22

MS. TOMSIC: ISSUED A LETTER TO ALL OF THE COUNTY

23 CLERKS. NOW, THIS IS AFTER YOUR ORDER HAS BEEN

24 SELF-EFFECTUATING SINCE BETWEEN 1:30 AND 2:00 FRIDAY

25 AFTERNOON, AFTER PEOPLE HAVE BEEN GRANTED MARRIAGE LICENSES,

27

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 29

1 AFTER THEY'VE BEEN MARRIED, HE SENDS OUT THIS LETTER.

2

AND, YOUR HONOR, I WANT YOU TO LOOK AT THE SECOND

3 PARAGRAPH OF THIS LETTER, AND PARTICULARLY THE LAST SENTENCE.

4 GOVERNOR HERBERT, THE DEFENDANT IN THIS ACTION, THE GOVERNOR

5 OF THE STATE OF UTAH, REQUIRED TO FOLLOW UTAH LAW IS TELLING

6 THESE CLERKS, PENDING A DETERMINATION OF THE STAY, PLEASE

7 CONSULT WITH YOUR COUNTY ATTORNEY AND COUNCIL -- COUNTY

8 COUNCIL OR COMMISSION FOR DIRECTION OF HOW TO PROCEED, END

9 QUOTE.

10

YOUR HONOR, HE IMPLICITLY IS TELLING THEM NOT TO FOLLOW

11 YOUR ORDER. THIS IS NO DIFFERENT THAN GOVERNOR WALLACE

12 STANDING IN FRONT OF THAT YOUNG BLACK WOMAN IN ALABAMA AND

13 SAYING, I DON'T CARE IF A FEDERAL COURT DETERMINED THAT THIS

14 GIRL HAS A CONSTITUTIONAL RIGHT TO ENTER OUR ALL WHITE SCHOOL.

15 YOU'RE NOT COMING IN BECAUSE THE PEOPLE OF THIS STATE SAY YOU

16 CAN'T. WELL, YOU KNOW WHAT, YOUR HONOR, GOVERNOR HERBERT

17 DOESN'T GET TO DECIDE WHAT THE LAW IS. YOU DO AND YOU HAVE.

18 AND THE STATE OFFICIALS IN THIS STATE NEED TO ABIDE BY THEIR

19 OATH OF OFFICE AND WHAT THE LAW OF THIS STATE IS.

20

AND I WANT TO TURN TO IRREPARABLE HARM. YOUR HONOR, THE

21 STATE SKIRTS THE ISSUE THAT WE RAISED AND THE QUESTION YOU

22 POSED TO THEM, WHICH IS WHAT IS THE STATUS QUO? AND THE

23 REASON THAT'S IMPORTANT FOR IRREPARABLE HARM, YOUR HONOR, IS

24 BECAUSE YOU NEED TO LOOK AT WHAT WOULD HAPPEN IF YOU ISSUE

25 THIS STAY NOW. THIS ISN'T LIKE GOING BACK IN TIME BEFORE YOUR

28

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 30

1 DECISION WAS ISSUED AND SAYING, NOPE, WE'RE GOING TO JUST HOLD

2 STILL. WE'RE NOT GOING TO DO ANYTHING. THIS IS A SITUATION

3 WHERE YOUR ORDER HAS NOW BEEN IN EFFECT, GOSH, MOST OF FRIDAY

4 AFTERNOON AND PART OF MONDAY MORNING. IT IS THE STATUS QUO.

5 IT IS THE LAW IN UTAH. AND THE STATE MUST DEMONSTRATE HOW

6 PERMITTING ADDITIONAL SAME-SEX COUPLES TO MARRY WILL HARM ITS

7 INTEREST, WILL CREATE IRREPARABLE HARM. AND, YOUR HONOR, THEY

8 HAVE NOT MADE THAT SHOWING.

9

IN FACT YOUR POINTED QUESTION ABOUT, GOSH, IF YOU'RE

10 SAYING ALL THESE MARRIAGES ARE INVALID, IF THE TENTH CIRCUIT

11 REVERSES ME, WHAT'S YOUR HARM?

12

AND, YOUR HONOR, I WOULD ASK YOU TO LOOK BACK AT YOUR

13 OPINION AGAIN IN TERMS OF IRREPARABLE HARM OF THE STATE. THE

14 STATE'S ARGUMENT ABOUT PROTECTING THE PUBLIC WILL, AND

15 PROTECTING THE TRADITIONAL FAMILY, AND PROTECTING THE PUBLIC

16 PROCESS ARE ALL THE STATE INTERESTS THAT THE STATE ARGUED TO

17 THIS COURT AS JUSTIFICATION FOR THE DISCRIMINATORY MARRIAGE

18 LAWS IN UTAH.

19

AND YOUR HONOR SQUARELY HELD THAT THE STATE WHOLLY FAILED

20 TO DEMONSTRATE THAT EVEN ASSUMING THOSE WERE LEGITIMATE STATE

21 INTERESTS, THAT THERE WAS ANY RATIONAL RELATIONSHIP BETWEEN

22 BANNING SAME-SEX MARRIAGE AND ACCOMPLISHING THOSE OBJECTIVES.

23 IF THE STATE CANNOT MEET THAT STANDARD, WHEN NO SAME-SEX

24 MARRIAGES HAVE TAKEN PLACE, THEY SURE AS HECK CAN'T SHOW THEY

25 MEET A STANDARD OF SHOWING HOW MORE SAME-SEX MARRIAGES WILL

29

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 31

1 HARM THE STATE'S INTERESTS.

2

AND I WOULD ASK YOUR HONOR, IF YOU ARE LOOKING AT THIS IN

3 TERMS OF HARMS -- AND YOU AGAIN ASKED THE QUESTION, GOSH, HOW

4 DO YOU BALANCE, IF THE STATE IS ARGUING THAT IT IS GOING TO BE

5 HARMED HERE BECAUSE THE -- YOU'VE GOT ALL THESE ARGUMENTS

6 ABOUT TRADITIONAL MARRIAGE AND PUBLIC SUPPORT FOR

7 DISCRIMINATING AGAINST SAME-SEX COUPLES, HOW DO YOU BALANCE

8 THAT AGAINST MY FINDING THAT THE PLAINTIFFS IN THIS CASE HAVE

9 TWO FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION THAT ARE BEING

10 VIOLATED? HOW CAN YOU JUSTIFY, WHEN I HAVE FOUND AS A FEDERAL

11 JUDGE, MANDATED BY ARTICLE 3, NOT TO CARRY OUT THE WILL OF THE

12 PEOPLE, THAT'S THE LEGISLATURE AND GOVERNOR'S JOB. IT IS MY

13 JOB AS A FEDERAL JUDGE TO HONOR AND IMPLEMENT THE PROTECTIONS

14 OF THE UNITED STATES CONSTITUTION. IF I FIND THOSE

15 CONSTITUTIONAL RIGHTS EXIST AND THEY ARE BEING DEPRIVED, HOW

16 CAN YOU POSSIBLY WEIGH WHAT I FOUND TO BE INSUFFICIENT TO

17 JUSTIFY THESE DISCRIMINATORY LAWS WOULD IN ANY WAY OUTWEIGH

18 THE DEPRIVATION OF CONSTITUTIONAL RIGHTS UNTIL THE TENTH

19 CIRCUIT APPELLATE PROCESS RUNS ITS COURSE, WHICH MAY BE YEARS?

20

AND I WOULD POINT OUT AGAIN, YOUR HONOR, THIS CONCEPT

21 THAT, GOSH, ALL WE'RE TALKING ABOUT IS DELAYING LETTING THESE

22 FOLKS EXERCISE THEIR CONSTITUTIONAL RIGHTS. WELL, TO ME THAT

23 ARGUMENT IS JUST ALMOST THE SAME AS THEIR ARGUMENT IN THEIR

24 PAPERS THAT THERE'S NOT A LONG ENOUGH HISTORY OF

25 DISCRIMINATION. LET'S MAKE IT LONGER. THAT'S NOT A GOOD

30

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 32

1 ARGUMENT, YOUR HONOR. IT'S NOT A FAIR ARGUMENT. YEAH, THAT'S

2 WHAT THEY THINK, BUT THAT'S NOT A LEGAL JUSTIFICATION.

3

AND I WOULD POINT OUT AGAIN, AS I DID IN MY PAPERS, AS I

4 DID IN MY ORAL ARGUMENT BEFORE, I HAVE TWO PLAINTIFFS, ONE OF

5 WHOM IS TERMINALLY ILL AND DYING. AND THEY ARE SAYING, OH,

6 GOSH, YOU KNOW, TOO BAD. IF THAT HAPPENS TO ALL THESE OTHER

7 SAME-SEX COUPLES WHO AREN'T MARRIED, IT'S JUST THE BREAKS.

8 WELL, IT'S NOT THE BREAKS.

9

JUDGE, YOU BALANCE THOSE HARMS. OURS WIN. THEIRS ARE

10 SHALLOW AND NONEXISTENT. AND I WOULD ASK YOU TO SAY TO

11 YOURSELF, IF I STAY THIS ACTION, WHAT IS THE WORST THAT'S

12 GOING TO HAPPEN TO THE STATE? AND BALANCE IT AGAINST WHAT IS

13 THE WORST THAT'S GOING TO HAPPEN TO SAME-SEX COUPLES? AND

14 LIKE YOUR DECISION, IT IS NOT A CLOSE CALL.

15

AND FINALLY, YOUR HONOR, LET'S TALK ABOUT THE PUBLIC

16 INTEREST. THEY TALK ABOUT WANTING TO PROTECT ALL OF UTAH'S

17 CITIZENS BECAUSE, GOSH, THERE'S THIS WHOLE GROUP OF PEOPLE WHO

18 BELIEVE THAT THIS ORDER IS VIOLATING GOD'S LAW. AND THEY WANT

19 TO PROTECT THOSE CITIZENS. WELL, YOU KNOW WHAT, YOUR HONOR,

20 IT'S NOT THIS COURT'S PLACE TO PROTECT A MORAL MAJORITY'S

21 VIEWPOINT. THE LAW IS CLEAR ON THAT. IT'S TO PROTECT THE

22 CONSTITUTIONAL RIGHTS OF OUR CITIZENS.

23

AND WHEN WE'RE TALKING ABOUT THE PUBLIC INTEREST HERE,

24 THIS COURT FOUND, AND THE STATE ADMITTED, THAT THE PLAINTIFFS

25 AND OTHER SAME-SEX COUPLES, BY BEING KEPT FROM MARRIAGE, WERE

31

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 33

1 SUFFERING CONSTITUTIONAL INJURIES. AND THE LANGUAGE YOU QUOTE

2 IS OUT OF WINDSOR. IT IS A CONSTITUTIONAL INJURY, YOUR HONOR,

3 AND IT IS AN INJURY THAT WILL HAPPEN EVERY DAY A STAY IS IN

4 PLACE, JUST LIKE IT DID BEFORE YOUR RULING. AND THERE IS NO

5 JUSTIFICATION FOR THAT.

6

BUT, MORE IMPORTANTLY, WHEN THE STATE SAYS THEY WANT TO

7 PROTECT ALL ITS CITIZENS, THAT IS BALONEY. LOOK AT THE

8 UNCONTROVERTED RECORD IN THIS CASE, WHICH IS CITED IN YOUR

9 OPINION, WHICH IS THERE ARE AROUND 3,000 CHILDREN OF SAME-SEX

10 COUPLES WHO ARE EXPERIENCING ON A DAILY BASIS THE KIND OF

11 HARM, DISCRIMINATION AND INSECURITY THAT NO CHILD, NO CHILD,

12 SHOULD EVER HAVE TO ENDURE. PROTECT THOSE KIDS.

13

YOUR HONOR, AND FINALLY THEIR EFFORT TO RELY ON DECISIONS

14 IN HAWAII AND NEVADA THAT ARE CURRENTLY PENDING BEFORE THE

15 NINTH CIRCUIT, AND ALSO THE EIGHTH CIRCUIT OPINION.

16

THE COURT: BUT THE JACKSON DECISION IS RENDERED

17 MOOT, IS IT NOT, BY THE ACTION OF --

18

MS. TOMSIC: IT IS. IT ABSOLUTELY IS. SO WE'RE

19 REALLY TALKING ABOUT THE NEVADA DECISION AND THE EIGHTH

20 CIRCUIT DECISION. AND I WOULD SAY A COUPLE THINGS ABOUT THAT.

21 NUMBER ONE, YOUR HONOR, THOSE COURTS ARE NOT IN OUR

22 JURISDICTION.

23

NUMBER TWO, THOSE CASES WERE -- AND I KNOW YOU DON'T LOVE

24 WINDSOR THE WAY I LOVE WINDSOR, BUT THEY WERE CLEARLY BEFORE

25 WINDSOR, AND THEY WERE CLEARLY BEFORE THE SUPREME COURT LEFT

32

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 34

1 JUDGE WALKER'S DECISION IN PROP 8 INTACT. AND I WOULD SAY

2 THAT IF YOU LOOK AT ACTUALLY THE DECISIONS THAT WERE DECIDED

3 AFTER WINDSOR, INCLUDING THE NEW JERSEY CASE, THOSE CASES HAVE

4 REFUSED TO ISSUE INJUNCTIONS FOR THE SAME TYPE OF -- I MEAN

5 STAYS FOR THE SAME REASONS YOU SHOULD.

6

AND THE EFFORT OF THE STATE IN THE PLEADINGS THEY FILED

7 THIS MORNING AND IN ORAL ARGUMENT AND SAY, OH, GOSH, THEY'RE

8 DISTINGUISHABLE. NO, THEY'RE NOT, JUDGE. IF YOU READ THE

9 ORDER IN NEW JERSEY, THE STANDARDS FOR STAY IN NEW JERSEY ARE

10 THE SAME WHETHER IT'S A STATE LAW OR A FEDERAL LAW. IT'S THE

11 SAME. IT IS NO DIFFERENT.

12

AND I WOULD JUST SAY TO YOUR HONOR, PLEASE, DO THE RIGHT

13 THING.

14

THE COURT: THANK YOU, MS. TOMSIC.

15

MR. LOTT.

16

MR. LOTT: JUST A COUPLE OF POINTS IN RESPONSE.

17

THE COURT: WOULD YOU MOVE THE MICROPHONE A LITTLE

18 CLOSER.

19

MR. LOTT: JUST A COUPLE OF POINTS IN RESPONSE.

20 REGARDING THE TIMING OF THE COURT'S ORDER ISSUING, IT WAS THE

21 FRIDAY BEFORE CHRISTMAS, AND IT WOULD HAVE BEEN NICE TO HAVE

22 RECEIVED NOTICE OF THE COURT'S GOING TO BE ISSUING A RULING

23 AND TO HAVE SOME EXPECTATION. I THINK THE CHRONOLOGY MAY HAVE

24 WORKED OUT A LITTLE BIT DIFFERENTLY HAD THAT HAPPENED.

25

ON THE CHARACTERIZATION OF THE TENTH CIRCUIT'S CURRENT

33

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 35

1 RULING, AGAIN, IT'S WITHOUT PREJUDICE, AND I DON'T THINK

2 ANYTHING MORE THAN THAT NEEDS TO BE READ INTO IT. THE STATE

3 IS NOT --

4

THE COURT: I DON'T READ EITHER OF THE TENTH CIRCUIT

5 ORDERS TO BE SUBSTANTIVE ORDERS. THE FIRST WAS CLEARLY

6 PROCEDURAL. THE RULING WAS THAT THE APPLICATION WAS

7 INSUFFICIENT, AND SO IT WAS DENIED FOR THAT REASON. IT DIDN'T

8 MEET THE LEGAL REQUIREMENTS. AND THE ONE THIS MORNING IS NOT

9 MUCH EXPLANATION, EXCEPT TO SAY THAT I THINK, AS BEST I CAN

10 READ IT, IS THEY WANTED THIS HEARING TO PROCEED BEFORE THEY

11 MADE A DECISION. BUT IN BOTH INSTANCES THEIR ORDERS DENYING

12 THE STATE'S REQUEST ARE WITHOUT PREJUDICE, WHICH INVITES THE

13 STATE TO RENEW THOSE MOTIONS. IS THAT WHAT THE STATE INTENDS

14 TO DO IF I DENY THE STATE'S MOTION FOR A STAY?

15

MR. LOTT: YES.

16

THE COURT: ALL RIGHT.

17

MR. LOTT: THE STATE HAS NOT CITED TO OR RELIED UPON

18 GOD'S LAW IN THIS, AND I THINK THAT'S AN IRRELEVANT ASSERTION.

19 AND AS TO THE GOVERNOR'S LETTER, I HADN'T SEEN THAT BEFORE

20 TODAY, BUT --

21

THE COURT: NEITHER HAD I.

22

MR. LOTT: IN MY VIEW THE GOVERNOR'S ADVICE TO A

23 COUNTY CLERK TO CHECK WITH A COUNTY ATTORNEY SEEMS LIKE A

24 REASONABLE ADVICE TO ME. I DON'T SEE --

25

THE COURT: I DON'T SEE THAT IT'S PARTICULARLY

34

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 36

1 RELEVANT TO WHAT WE'RE DOING TODAY. MS. TOMSIC WANTED IT IN

2 THE RECORD, AND IT WILL BE RECEIVED FOR THAT REASON.

3

MR. LOTT: THANK YOU, YOUR HONOR.

4

THE COURT: THANK YOU. ALL RIGHT. LET'S DO THIS.

5 LET'S TAKE A -- LET'S TAKE A BRIEF RECESS.

6

MS. GODDARD: YOUR HONOR, I'M SO SORRY. THIS IS

7 GOING TO BE A LITTLE ANTICLIMACTIC, BUT I DO THINK THERE IS

8 SOMETHING THE COUNTY IS UNIQUELY POSITIONED TO ADDRESS.

9

THE COURT: MY APOLOGIES. PLEASE, THE PODIUM IS

10 YOURS.

11

MS. GODDARD: YOUR HONOR ASKED EARLIER WHAT THE

12 STATUS QUO IS, AND I THINK BOTH PARTIES ANSWERED IT TO THE

13 BEST THEY COULD. I THINK THAT SALT LAKE COUNTY AS THE FIRST

14 ENTITY TO ISSUE THE MARRIAGE LICENSES MIGHT BE THE BEST TO

15 GIVE YOU THE ACTUAL NUMBERS.

16

ON FRIDAY WE ISSUED OVER 100 MARRIAGE LICENSES TO

17 SAME-SEX COUPLES. THE FIRST ONE WAS ISSUED WITHIN I WOULD SAY

18 PROBABLY 45 MINUTES OF OUR RECEIVING NOTICE OF THE COURT'S

19 ORDER.

20

AS OF THIS MORNING WE HAVE ISSUED OVER 90 I AM TOLD

21 ALREADY, AND THAT NUMBER IS PROBABLY A LITTLE BIT STALE. WHEN

22 WE CAME HERE THIS MORNING THERE WAS -- THERE WAS A LINE OF

23 PEOPLE STRETCHING THROUGH ALL THREE FLOORS OF OUR BUILDING.

24

BUT MORE THAN THAT, YOUR HONOR, THERE IS ACTUALLY SOME

25 CONFUSION AMONG THE COUNTY CLERKS THAT I THINK WOULD BE

35

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 37

1 HELPFUL FOR YOU TO ADDRESS. THERE IS A PROVISION IN THE UTAH

2 CODE THAT ALSO AFFECTS THE ABILITY OF CLERKS TO ISSUE LICENSES

3 TO SAME-SEX COUPLES THAT IS NOT EXPLICITLY ADDRESSED IN YOUR

4 RULING.

5

THIS CODE SECTION IS 31-8, AND IT IS APPLICATION FOR A

6 LICENSE. AND TWICE IN THAT SECTION OF THE CODE IT REFERENCES

7 THAT A MARRIAGE LICENSE MAY BE ISSUED BY THE COUNTY CLERK TO A

8 MAN AND A WOMAN. THAT IS IN THE FIRST SECTION. IT IS ALSO IN

9 THE NEXT SUBSECTION THAT TALKS ABOUT THE FULL NAMES OF A MAN

10 AND A WOMAN.

11

NOW, OUR INTERPRETATION IN SALT LAKE COUNTY OF YOUR ORDER

12 ON FRIDAY, WHEN IN FOOTNOTE ONE ON PAGE EIGHT YOU INDICATED

13 THAT YOU WERE ADDRESSING ALL OF THE LAWS THAT WOULD RESTRICT

14 THE ISSUANCE OF LICENSES TO SAME-SEX COUPLES, WAS THAT YOU

15 MEANT WHAT YOU SAID. AND SO WE INTERPRETED IT, AND WE ADVISED

16 OUR CLERK THAT REGARDLESS OF THIS SEPARATE SECTION IN THE

17 CODE, SHE NEEDED TO COMPLY WITH YOUR ORDER.

18

THAT SAID, OVER THE WEEKEND WE BECAME AWARE THAT THIS IS

19 AN ISSUE IN A NUMBER OF COUNTY CLERKS OFFICES THROUGHOUT THE

20 STATE OF UTAH WHERE THEY ARE CONCERNED ABOUT THE LANGUAGE THAT

21 WAS UNADDRESSED IN YOUR OPINION, AND IN PARTICULAR THEY ARE

22 CONCERNED BECAUSE IT IS A CLASS-A MISDEMEANOR FOR CLERKS TO

23 ISSUE LICENSES IN VIOLATION OF THE LAW.

24

AND BECAUSE THAT CODE SECTION IS NOT SPECIFICALLY

25 MENTIONED, I THINK THERE IS SOME CONFUSION, NOT THE CONFUSION

36

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 38

1 THE STATE OR MS. TOMSIC IS TALKING ABOUT, BUT A CONFUSION

2 AMONG THE COUNTY ATTORNEYS AND THE COUNTY CLERKS AS TO WHETHER

3 THEY COULD POTENTIALLY BE CRIMINALLY LIABLE UNDER THAT

4 SEPARATE PROVISION.

5

NOW, AGAIN, SALT LAKE COUNTY VIEWS YOUR ORDER AS

6 ENCOMPASSING ALL THE LAWS THAT WOULD PURPORT TO LIMIT THE

7 ABILITY OF THE CLERKS TO ISSUE LICENSES TO SAME-SEX COUPLES.

8 BUT TO THE EXTENT YOU ARE NOT INCLINED TO STAY YOUR RULING

9 TODAY, AND SO WE ALL LEAVE THIS COURTROOM AND CLERKS ARE

10 CONTINUING TO ISSUE LICENSES, WE THINK IT WOULD BE HELPFUL NOT

11 JUST IN SALT LAKE COUNTY BUT TO OTHER CLERKS THROUGHOUT THE

12 STATE FOR YOU TO CLARIFY THAT YOUR RULING ENCOMPASSES THAT

13 SECTION OF THE CODE AS WELL.

14

THE COURT: ALL RIGHT, THANK YOU, MS. GODDARD. OF

15 COURSE THAT SECTION OF THE CODE WASN'T RAISED BY ANY OF THE

16 PARTIES IN THE BRIEFING, AND I WAS COMPLETELY UNAWARE OF IT

17 UNTIL THIS MORNING.

18

MS. TOMSIC: MEA CULPA, YOUR HONOR.

19

THE COURT: ALL RIGHT. ANYTHING MORE IN LIGHT OF

20 THAT, MR. LOTT, MS. TOMSIC?

21

MS. TOMSIC: NO, YOUR HONOR.

22

MR. LOTT: NO.

23

THE COURT: LET'S TAKE A BRIEF RECESS FOR 15 OR 20

24 MINUTES AND WE'LL COME BACK.

25

(RECESS FROM 10:19 A.M. UNTIL 11:08 A.M.)

37

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 39

1

THE COURT: ALL RIGHT. THANK YOU ALL FOR YOUR

2 PATIENCE. ONCE AGAIN THE PARTIES HAVE GIVEN ME A GREAT DEAL

3 TO CONSIDER.

4

AT THE OUTSET LET ME FIRST ADDRESS THE ISSUE RAISED BY

5 SALT LAKE COUNTY AT THE CONCLUSION OF OUR ARGUMENT. TO THE

6 EXTENT THAT IT'S NOT ALREADY CLEAR FROM THE COURT'S RULING, MY

7 INTENT AND THE EFFECT OF MY RULING ON FRIDAY WAS TO FIND THAT

8 THE LAWS OF THE STATE OF UTAH THAT OPERATE TO DENY SAME-SEX

9 COUPLES THE OPPORTUNITY TO MARRY OPERATE IN VIOLATION OF THE

10 DUE PROCESS PROTECTIONS AND EQUAL PROTECTION UNDER THE UNITED

11 STATES CONSTITUTION. FOR THAT REASON, THEY COULD NOT BE

12 APPLIED.

13

WHILE I DID NOT ATTEMPT TO IDENTIFY OR SPECIFY EVERY

14 PROVISION OF THE STATE CODE THAT MIGHT OPERATE IN VIOLENCE TO

15 THOSE CONSTITUTIONAL GUARANTEES, THE INTENT AND EFFECT OF MY

16 ORDER IS TO PREVENT THE STATE OF UTAH OR ANYONE ACTING ON

17 BEHALF OF THE STATE OF UTAH FROM ENFORCING ANY LAW THAT WOULD

18 DEPRIVE SAME-SEX COUPLES OF THOSE CONSTITUTIONAL GUARANTEES,

19 INCLUDING THAT PROVISION THAT MS. GODDARD SPECIFICALLY RAISED

20 AT THE CONCLUSION OF OUR ARGUMENT.

21

BUT TURNING TO THE ISSUE BEFORE US, THE -- BEFORE THE

22 COURT IS THE STATE DEFENDANTS' MOTION FOR A STAY PENDING

23 APPEAL. WE HAVE CAREFULLY REVIEWED THE BRIEFS SUBMITTED BY

24 THE PARTIES, BOTH IN SUPPORT OF AND IN OPPOSITION TO THAT

25 MOTION, AND OF COURSE HAVE CONSIDERED THE ARGUMENTS PRESENTED

38

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 40

1 HERE THIS MORNING. WE'VE ALSO CONSIDERED THE LEGAL

2 AUTHORITIES CITED BY THE PARTIES AND THE STANDARDS THAT GOVERN

3 APPLICATIONS FOR STAYS PENDING APPEAL.

4

I'LL NOTE THAT I THINK MS. TOMSIC'S DISCUSSION CONCERNING

5 THE PROCEDURAL HISTORY THAT LED US TO THIS POINT WAS CORRECT

6 AND APT, AND I ADOPT THAT DISCUSSION. AND OUR REALITY, OF

7 COURSE, IS THAT THIS IS SOMETHING OF A MESS, FOR THOSE REASONS

8 I THINK THAT MS. TOMSIC EXPLAINED.

9

I'LL NOTE THAT THERE IS NO DISPUTE AMONGST THE PARTIES

10 ABOUT THE STANDARD THAT I AM REQUIRED TO APPLY IN ADDRESSING

11 AND RESOLVING THIS MOTION FOR A STAY PRESENTED BY THE STATE

12 DEFENDANTS. EVERYONE AGREES WHAT THOSE FACTORS ARE.

13

BEFORE I ANNOUNCE MY RULING, I'LL JUST NOTE THAT

14 ULTIMATELY THE STATE DEFENDANTS ENCOURAGE ME TO FOLLOW THE

15 COURSE TAKEN BY JUDGE WALKER IN CALIFORNIA IN DECIDING THE

16 PROPOSITION 8 LITIGATION. BUT, IMPORTANTLY, WE ARE IN A

17 DIFFERENT PROCEDURAL POSTURE THAN JUDGE WALKER WAS, FOR THE

18 REASON THAT THE PARTIES IN THAT CASE CONSIDERED AND HAD

19 PREPARED TO FILE A MOTION REQUESTING THAT THE COURT STAY THE

20 EFFECT OF ITS ORDER EVEN BEFORE THE COURT ISSUED ITS RULING.

21 THE INTERVENOR DEFENDANTS IN THE PROPOSITION 8 LITIGATION MADE

22 THAT REQUEST IN A MANNER THAT PERMITTED JUDGE WALKER TO

23 CONSIDER IT SIMULTANEOUSLY WITH THE ISSUANCE OF HIS RULING ON

24 THE MERITS.

25

AND OF COURSE JUDGE WALKER DID THAT. HE ISSUED TWO

39

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 41

1 ORDERS ESSENTIALLY SIMULTANEOUSLY, ONE RESOLVING THE LEGAL

2 ISSUES ADDRESSED, AND THEN, SECOND, A SECOND ORDER STAYING THE

3 EFFECT OF THAT RULING TO PRESERVE THE STATUS QUO UNTIL THE

4 PARTIES HAD AN OPPORTUNITY FULLY TO BRIEF A REQUEST FOR A

5 STAY.

6

AND IN THIS INSTANCE WE HAD NO SUCH REQUEST FROM ANY

7 PARTY, EITHER PRIOR TO THE COURT'S SUBSTANTIVE RULING FRIDAY

8 OR IMMEDIATELY THEREAFTER. SO THIS COURT DID WHAT IT HAS DONE

9 IN EVERY CASE, IN EVERY ORDER THAT I HAVE ISSUED SINCE I TOOK

10 MY OATH AND TOOK THIS POSITION, AND THAT WAS TO ISSUE AN ORDER

11 RESOLVING THE ISSUES PRESENTED BY THE PARTIES, AND NOTHING

12 ELSE, AND THAT'S EXACTLY WHAT WE DID.

13

AND I'LL NOTE THAT AT ITS CORE I BELIEVE MS. TOMSIC IS

14 CORRECT, THAT THE STATE ESSENTIALLY RELIES AND REASSERTS HERE

15 ARGUMENTS THAT IT PREVIOUSLY SUBMITTED IN OPPOSITION TO THE

16 PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, ARGUMENTS THAT I

17 PREVIOUSLY CONSIDERED AND DECIDED ON THE MERITS. AND THOSE

18 FINDINGS -- PARDON ME -- THOSE FINDINGS PREVENT ME FROM

19 PROVIDING THE RELIEF THAT THE STATE IS REQUESTING TODAY.

20

FOR REASONS THAT I WILL FURTHER AND MORE COMPLETELY

21 ARTICULATE IN A BRIEF WRITTEN RULING THAT I'LL ISSUE BEFORE

22 THE END OF THE DAY TODAY, I CONCLUDE THAT THE STATE HAS FAILED

23 TO CARRY ITS BURDEN AS THE MOVING PARTY TO DEMONSTRATE AND

24 SATISFY THE FACTORS IT IS REQUIRED TO MEET IN ORDER TO OBTAIN

25 A STAY PENDING RESOLUTION OF THE DEFENDANTS' APPEAL TO THE

40

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 42

1 TENTH CIRCUIT.

2

AND IMPORTANTLY I'LL NOTE THAT THERE IS NO AUTHORITY

3 CITED BY THE PARTIES, AND I AM AWARE OF NO AUTHORITY, THAT

4 OTHERWISE GRANTS ME A LEGAL BASIS TO PROVIDE A TEMPORARY STAY

5 WHILE THE TENTH CIRCUIT CONSIDERS WHAT I EXPECT WILL BE AN

6 EXPEDITIOUSLY FORTHCOMING MOTION FROM THE STATE OF UTAH.

7

IN LIGHT OF THAT, IT SEEMS TO ME THAT MY OBLIGATION AS A

8 DISTRICT COURT JUDGE IS TO MAKE A SUBSTANTIVE RULING ON THE

9 MERITS AS QUICKLY AS POSSIBLE AND THEN TO STEP ASIDE AND ALLOW

10 THE TENTH CIRCUIT TO WEIGH IN AND DETERMINE HOW BEST TO

11 PROCEED.

12

AND SO WHILE THERE WILL BE A BRIEF WRITTEN ORDER

13 FORTHCOMING, THE ORDER THAT I'VE JUST ARTICULATED IS THE

14 RULING OF THE COURT, AND THE STATE IS WELCOME TO PROCEED

15 IMMEDIATELY WITH ANY APPLICATION FOR ANY FURTHER RELIEF IT

16 WOULD LIKE FROM THE TENTH CIRCUIT OR ANYONE ELSE.

17

IN LIGHT OF THAT RULING, ARE THERE ANY FURTHER -- ARE

18 THERE ANY QUESTIONS OR ANYTHING MORE WE SHOULD TAKE UP TODAY?

19

MR. LOTT?

20

MR. LOTT: NOT ON BEHALF OF THE STATE DEFENDANTS.

21 WE THANK THE COURT FOR THE CLARITY OF THE RULING.

22

THE COURT: THANK YOU, AND THANK YOU BOTH, BOTH

23 PARTIES, FOR -- YOU HAVE BOTH WORKED OVER THE WEEKEND AND LATE

24 AT NIGHT TO PREPARE YOUR BRIEFS AND ARGUMENTS, AND I VERY MUCH

25 APPRECIATE THAT.

41

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 43

1

MS. TOMSIC, IS THERE ANYTHING FURTHER?

2

MS. TOMSIC: NO, YOUR HONOR. THANK YOU FOR THE TIME

3 THIS MORNING.

4

THE COURT: THANK YOU. WE'LL BE IN RECESS.

5

(HEARING CONCLUDED AT 11:16 A.M.)

6

* * *

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

42

Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 44

1

2

3

4

5

CERTIFICATE OF REPORTER

6

I, RAYMOND P. FENLON, OFFICIAL COURT REPORTER FOR THE

7 UNITED STATES DISTRICT COURT, DISTRICT OF UTAH, DO HEREBY

8 CERTIFY THAT I REPORTED IN MY OFFICIAL CAPACITY, THE

9 PROCEEDINGS HAD UPON THE HEARING IN THE CASE OF

10 KITCHEN, ET AL. VS. HERBERT, ET AL., CASE NO. 2:13-CV-217,

11 IN SAID COURT, ON THE 23RD DAY OF DECEMBER, 2013.

12

I FURTHER CERTIFY THAT THE FOREGOING PAGES CONSTITUTE

13 THE OFFICIAL TRANSCRIPT OF SAID PROCEEDINGS AS TAKEN FROM MY

14 MACHINE SHORTHAND NOTES.

15

IN WITNESS WHEREOF, I HAVE HERETO SUBSCRIBED MY NAME

16 THIS 23RD DAY OF DECEMBER, 2013.

17

18

19

20

/S/ RAYMOND P. FENLON

21

22

23

24

25

43

 
 Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 1
No. 13-4178 __________________________________________________________________

In the United States Court of Appeals for the Tenth Circuit __________________________________________________________________

DEREK KITCHEN, et al.,

Plaintiffs-Appellees, v.

GARY R. HERBERT, in his official capacity as Governor of Utah, and SEAN D. REYES, in his official capacity as Attorney General of Utah,

Defendants-Appellants, and

SHERRIE SWENSON, as Salt Lake County Clerk,

Defendant. __________________________________________________________________

On appeal from the U.S. District Court for the District of Utah, The Honorable Robert J. Shelby presiding, Case No. 2:13-CV-00217 RJS __________________________________________________________________

Brief of Appellants Gary R. Herbert and Sean D. Reyes __________________________________________________________________

JOHN J. BURSCH

GENE C. SCHAERR

Warner Norcross & Judd LLP Special Assistant Attorney

111 Lyon Street, NW. Ste. 900 General

Grand Rapids, MI 49503

BRIAN L. TARBET

616-752-2474

Chief Deputy Attorney General

PARKER DOUGLAS

MONTE N. STEWART

Chief of Staff & Counsel General

12550 W. Explorer Dr., Ste. 100 160 East 300 South

Boise, ID 83713

Salt Lake City, UT 84114-0856

208-345-3333

801-366-0100 (phone)

gschaerr@utah.gov

ORAL ARGUMENT REQUESTED

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 2
ADDITIONAL COUNSEL STANFORD E. PURSER PHILIP S. LOTT Asst. UT Attorneys General 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100
i

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 3
TABLE OF CONTENTS
TABLE OF AUTHORITIES.....................................................................iv PRIOR OR RELATED APPEALS.......................................................... xiv INTRODUCTION ...................................................................................... 1 JURISDICTION ........................................................................................ 4 ISSUE PRESENTED ................................................................................ 4 FACTUAL AND PROCEDURAL STATEMENT......................................4
A. The States’ traditional authority over marriage .......................... 4 B. History of the man-woman definintion ........................................ 7 C. History of Amendment 3 ............................................................. 10 D. Other Utah laws encouraging mother-father parenting............14 E. Recent experimentation in other States ..................................... 17 F. Procedural history of this case....................................................17 G. The district court’s decision ........................................................ 18 H. Stay proceedings ......................................................................... 21 SUMMARY OF ARGUMENT ................................................................. 22 STANDARD OF REVIEW....................................................................... 28 ARGUMENT ........................................................................................... 28
THE DISTRICT COURT ERRED IN HOLDING THAT UTAH LACKS CONSTITUTIONAL AUTHORITY TO RETAIN ITS GENDERED DEFINITION OF MARRIAGE...................................28 A. The district dourt’s decision contravenes Baker v. Nelson, which
is both controlling and consistent with Windsor and the federalism principles it reaffirms. .............................................. 28 1. Baker is controlling. .............................................................. 29 2. The district court’s reasons for refusing to follow Baker are
misguided. ............................................................................. 32
ii

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 4
B. Viewed in light of the proper legal standards, the district court’s due process and equal protection holdings are legally erroneous. ..................................................................................................... 36
1. There is no fundamental due-process right to marry someone of the same sex. ..................................................................... 37
2. Under the district court’s own conclusions about the legitimate purposes of Utah’s definition, Utah does not deny same-sex couples the equal protection of the laws...............42
C. The district court erred in failing to give adequate weight to Utah’s reasons, supported by common sense and substantial social science, for retaining the man-woman definition of marriage. ..................................................................................... 50
1. Utah’s marriage definition furthers the State’s vital interest in fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children.........................................................................51
2. Utah’s marriage definition furthers the State’s vital interest in children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home............................................................................ 62
3. Utah’s man-woman definition furthers the State’s vital interest in ensuring adequate reproduction by parents willing and able to provide a high-quality home environment for their children. .................................................................. 82
4. Preserving Utah’s marriage definition furthers the State’s vital interests in accommodating religious freedom and reducing the potential for civic strife....................................90
CONCLUSION ...................................................................................... 101
STATEMENT REGARDING ORAL ARGUMENT .............................. 101
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ...................... 103
ECF CERTIFICATIONS ....................................................................... 103
CERTIFICATE OF SERVICE............................................................... 104
ADDENDA............................................................................................. 105
iii

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 5
TABLE OF AUTHORITIES
Cases Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ...................... 44 Andersen v. King Cnty., 138 P.3d 963 (Wash. 2006) ........................ 37, 38 Baker v Nelson, 409 U.S. 810 (1972)..................................... 18, 22, 23, 28 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).............................. passim Baker v. State, 744 A.2d 864 (Vt. 1999) ............................................ 12, 45 Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731 (1983) .. 90, 97 Bob Jones University v. United States, 461 U.S. 574 (1983) .................. 95 Bowen v. Gilliard, 483 U.S. 587 (1987)...................................................66 Christian Heritage Acad. v. Okla. Secondary Sch. Ass’n, 483 F.3d 1025
(10th Cir. 2007)......................................................................................28 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006)... 31, 43 City of Dallas v. Stanglin, 490 U.S. 19 (1989) ........................................ 46 Clinton v. City of New York, 524 U.S. 417 (1998)...................................35 Collins v. City of Harker Heights, 503 U.S. 115 (1992) .......................... 37 Craig v. Boren, 429 U.S. 190 (1976)........................................................44 Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012)..................43 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) .................. 38, 43 Donaldson v. State, 292 P.3d 364 (Mont. 2012)......................................31 Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)...............95 Ex parte Burrus, 136 U.S. 586 (1890) ....................................................... 5 F.C.C v. Beach Commc’ns, Inc., 508 U.S. 307 (1993).............................. 46
iv

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 6
Gonzales v. Carhart, 550 U.S. 124 (2007)......................................... 41, 65 Gonzales v. Oregon, 546 U.S. 243 (2006) ................................................ 36 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) .......... 12 Haddock v. Haddock, 201 U.S. 562 (1906) ............................................... 5 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ............................. passim Hicks v. Miranda, 422 U.S. 332 (1975) ................................................... 29 Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ........................................ 5 Hyde v. Hyde, [L.R.] 1 P. & D. 130 (1866) (Lord Penzance) ................... 11 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ........................... 43 In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010) .......... 43 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) . 38, 43, 47 Johnson v. Robison, 415 U.S. 361 (1947).......................................... 25, 47 Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) .............................. 49 Lawrence v. Texas, 539 U.S. 558 (2003)............................................ 33, 40 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973)............46 Lewis v. Harris, 908 A.2d 196 (N.J. 2006) ........................................ 37, 59 Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d
804 (11th Cir. 2004) ....................................................................... 43, 50 Loving v. Virginia, 388 U.S. 1 (1967)...................................... 9, 27, 39, 84 Maher v. Roe, 432 U.S. 464 (1977) ........................................................ 100 Mandel v. Bradley, 432 U.S. 173 (1977) ..................................... 23, 29, 30 Marcavage v. City of New York, 689 F.3d 98 (2d Cir. 2012)...................62
v

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 7
Massachusetts v. U. S. Dep’t Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) .............................................................................................. 31
Maynard v. Hill, 125 U.S. 190, 211 (1888) ............................................. 84 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ........................ 43 Murphy v. Ramsey, 114 U.S. 15 (1885) ............................................. 8, 100 Nordlinger v. Hahn, 505 U.S. 1 (1992) ............................................. 46, 51 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) .................................... 44 Parham v. J.R., 442 U.S. 584 (1979)....................................................... 65 Phillips Chemical Co. v. Dumas School Dist., 361 U.S. 376 (1960) ....... 48 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) .............. 43, 44 Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989)
........................................................................................................ 23, 32 Romer v. Evans, 517 U.S. 620 (1996)......................................................42 Rose v. Rose, 481 U.S. 619 (1987) ............................................................. 5 Simms v. Simms, 175 U.S. 162 (1899)......................................................5 Skinner v. Oklahoma, 316 U.S. 535 (1942)......................................... 9, 84 Smithkline Beecham Corp. v. Abbott Labs, __ F.3d __, 2014 WL 211807
(9th Cir., January 21, 2014).................................................................44 Sosna v. Iowa, 419 U.S. 393 (1975)..................................................... 5, 34 Stenberg v. Carhart, 530 U.S. 914 (1999) ............................................... 41 United States v. Griffin, 7 F.3d 1512 (10th Cir. 1993) ........................... 62 United States v. Windsor, 133 S. Ct. 2675 (2013)........................... passim United States v. Yazell, 382 U.S. 341 (1966) ............................................ 5 Van Orden v. Perry, 545 U.S. 677 (2005) ................................................ 97
vi

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 8
Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) .......................................... 96 Washington v. Glucksberg, 521 U.S. 702 (1997) ............................. passim Zablocki v. Redhail, 434 U.S. 374 (1978)...................................... 9, 39, 84 Zelman v. Simmons-Harris, 536 U.S. 639 (2002)...................................97 State Statutes Utah Code § 30-1-2(5)..............................................................................11 Utah Code § 30-1-30 ................................................................................ 15 Utah Code § 30-1-4.1 ............................................................................... 12 Utah Code § 30-3-11.3 ............................................................................. 57 Utah Code § 62A-4a-103(2)(b).................................................................15 Utah Code § 62A-4a-107(5)(a) and (b) .................................................... 15 Utah Code § 62A-4a-201(1)(c) ................................................................. 15 Utah Code § 62A-4a-203(1)(a).................................................................15 Utah Code § 62A-4a-607(1)(b).................................................................17 Utah Code § 68-3-1 .................................................................................. 10 Utah Code § 78A-6-102(5)(g) ................................................................... 16 Utah Code § 78A-6-302 ........................................................................... 57 Utah Code § 78A-6-503(10)(d).................................................................16 Utah Code § 78A-6-503(8) ....................................................................... 16 Utah Code § 78B-6-102(4) ....................................................................... 16 Utah Code § 78B-6-117(2) ....................................................................... 16 Utah Code § 78B-6-117(3) ....................................................................... 16 Utah Code § 78B-6-117(4) ....................................................................... 17
vii

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 9
Constitution UTAH CONST. art. III................................................................................10
Other Sources A.R. Radcliffe-Brown, Structure and Function in Primitive Society 10
(1952) .............................................................................................. 53, 57
Allan Carlson, Deconstruction of Marriage: The Swedish Case, 44 San Diego L. Rev. 153 (2007) ...................................................................... 80
Amicus Curie Brief of Scholars of History and Related Disciplines, No. 12-144, U.S. Supreme Court .................................................................. 7
Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. Marriage & Fam. 848 (2004)............................................................75
Ass’n of Religion Data Archives .............................................................. 91
Benjamin Scafidi, Institute for American Values, The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and All Fifty States (2008) ................................................................... 69
Bertrand Russell, Marriage & Morals (Liveright 1970) ........................ 56
Bronislaw Malinowski, Sex, Culture, and Myth (1962)..........................53
Bruce J. Ellis et. al, Does Father Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage Pregnancy?, 74 Child Dev. 801 (2003) ............................................................................................. 66
Carl E. Schneider, The Channeling Function in Family Law, 20 Hofstra L. Rev. 495 (1992) ................................................................................. 55
Cent. Intelligence Agency, Country Comparison: Birth Rate, The World Factbook ......................................................................................... 85, 86
Cent. Intelligence Agency, Country Comparison: Total Fertility Rate, The Word Factbook ........................................................................ 85, 86
Clarence Page, An odd push to privatize marriage, Chicago Tribune (April 3, 2013).......................................................................................78
viii

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 10
Claude Levi-Strauss, Introduction, in A History of the Family: Distant Worlds, Ancient Worlds ........................................................................ 10
Claude Levi-Strauss,The View From Afar (1985)................................... 10
Ctrs. for Disease Control & Prevention, Marriage Rates by State: 1990, 1995, and 1999-2011 ............................................................................ 80
Ctrs. For Disease Control and Prevention, National Vital Statistics Reports—Births: Final Data for 2010 (Aug. 28, 2012) .................. 85, 86
Cynthia C. Harper and Sara S McLanahan, Father Absence and Youth Incarceration, 14 J. Res. Adolescence 369 (2004) ................................ 68
Dan Fastenberg, A Brief History of International Gay Marriage, Time, July 22, 2010 ........................................................................................ 86
Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The Story Behind the Controversy and the Case for Conscientious Refusals 27 Children’s Legal Rights J. 1 (2007) ....................................................................... 95
David Popenoe, Life Without Father: Compelling New Evidence That Fatherhood & Marriage are Indispensable for the Good of Children & Society (1996)........................................................................................64
Dean Byrd, Dual-Gender Parenting: A Social Science Perspective for Optimal Child Rearing, in Family Law: Balancing Interests and Pursing Priorities (2007) ...................................................................... 65
Dean Byrd, Gender Complementarity and Child-reading: Where Tradition and Science Agree, 6 J. L. & Fam. Studs. 213 (2004) ......... 65
Douglas W. Allen, High School Graduation Rates Among Children of Same-sex Households 11 Rev. Econ. Household 635 (2013)................67
Eerik Lagerspetz, On the Existence of Institutions, in On the Nature of Social and Institutional Reality (Eerik Lagerspetz et al. eds., 2001) . 54
Eerik Lagerspetz, The Opposite Mirrors: An Essay on the Conventionalist Theory of Institutions (1995) ..................................... 54
ix

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 11
Ellen Willis, Can Marriage Be Saved? A Forum, The Nation (2004) .... 77 Emily Esfahani Smith, Washington, Gay Marriage and the Catholic
Church, Wall Street Journal (Jan. 9, 2010)......................................... 94 European Commission, Crude Marriage Rate, Selected Years, 1960-2011
.............................................................................................................. 79 Froma Harrop, Take Government out of the Marriage Business, Real
Clear Politics (July 2, 2013) ................................................................. 78 G. Robina Quale, A History Of Marriage Systems (1988) ...................... 53 Institute for American Values, Marriage and the Law: A Statement of
Principles (2006)............................................................................. 59, 61 International Social Survey Programme, Family and Changing Gender
Roles III: 2002 (September 2004).........................................................79 James Q. Wilson, The Marriage Problem (2002) .................................... 53 Jean-Pierre Guengant, The Proximate Determinants During the
Fertility Transition......................................................................... 83, 84 Joel Prentiss Bishop, Commentaries on the Law of Marriage & Divorce
Vol. 1 (1st ed. 1852) ................................................................................ 8 John Bouvier, A Law Dictionary Adapted to the Constitution and Laws
of the United States (1856) .................................................................... 8 John Garvey, State Putting Church Out of Adoption Business, Boston
Globe (March 14, 2006) ........................................................................ 95 John R. Searle, Making the Social World: The Structure of Human
Civilization (2010) ................................................................................ 54 John R. Searle, The Construction of Social Reality (1995).....................54 Joseph E. Worcester, A Primary Dictionary of the English Language
(1871) ...................................................................................................... 8
x

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 12
Joyce A. Martin, et al., Ctrs. for Disease Control & Prevention, National Vital Statistics Reports—Births: Final Data for 2012 (December 30, 2013) ..................................................................................................... 84
Judith Stacey, In the Name of the Family: Rethinking Family Values in the Postmodern Age (1996) ................................................................... 77
Junfu Zhang and Xue Song, Fertility Differences between Married and Cohabiting Couples: A Switching Regression Analysis, IZA Discussion Paper No. 3245 (December 2007).........................................................89
Keith Ablow, When It Comes to Marriage, Government Should Divorce Itself, Fox News (March 27, 2013) ....................................................... 79
Kristin Anderson Moore et al., Marriage From a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It, Child Trends Research Brief (June 2002) ...................... 63, 66
Lawrence L. Wu & Brian C. Martinson, Family Structure and the Risk of a Premarital Birth, 54 American Sociological Rev. 210 (1993).......67
Letter from Douglas Laycock, Michael Perry, and Mark D. Stern to Representative Michael Madigan (Mar. 11, 2013) .............................. 94
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 (2012) ...... 77
Lynn D. Wardle, The Fall of Marital Stability and the Rise of Juvenile Delinquency, 10 J. L. & Fam. Studs. 83 (2007) ................................... 68
Lynn Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harvard J. L. & Pub. Pol’y 771(2001) ............................................ 82, 83
Manya A. Brachearm, Rockford Catholic Charities Ending Foster Care, Chicago Tribune (May 26, 2011) .......................................................... 95
Mark D. Regnerus, Answering Critics of the New Family Structures Study with Additional Analysis, 41 Soc. Sci. Res. 1367 (2012)........... 68
xi

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 13
Mark D. Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res. 752 (2012) .............................. 68, 76
Michael E. Lamb, Fathers: Forgotten Contributors to Child Development,18 Human Development 245 (1975)...............................65
Michelle Boorstein, Citing Same-Sex Marriage Bill, Washington Archdiocese Ends Foster-Care Program, Washington Post (Feb. 17, 2010) ..................................................................................................... 94
Monte Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1 Duke J. Const. L. & Pub. Pol'y 1 (2006) ......... 54, 55
Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol'y 313 (2008) .................................................................................................... 54
Noah Webster, Etymological Dictionary (1st ed. 1869)............................8
Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Soc’y 25 (2004) .............................................................................................. 64, 74
OECD, Social Policy Division, Directorate of Employment, Labour and Social Affairs, SF2.1: Fertility rates, OECD Family Database (June 26, 2013) ............................................................................................... 85
Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147 (1998) ............................................................... 49
Pew Research Religion & Pub. Life Project, Religious Groups’ Official Positions on Same-Sex Marriage (Dec. 7, 2012) ............................ 91, 92
Press Release, Congressman Bob Barr’s Remarks at 2011 Log Cabin National Convention (April 30, 2011) .................................................. 78
Raj Chetty et. al, Where is the Land of Opportunity? The Geography of Intergenerational Mobility in the U.S., Table IV, NBER Working Paper No. 19843 (January 2014) ......................................................... 71
Religious Establishment Bigots Sound Alarm Against Loving Same-Sex Marriages, The Daily Kos (Jan. 12, 2012) ........................................... 95
xii

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 14
Richard G. Wilkins, Adult Sexual Desire and the Best Interests of the Child, 18 St. Thomas L. Rev. 543 (2005) ............................................. 68
Robert George et al., What is Marriage? Man and Woman: A Defense (2012) .................................................................................................... 52
Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock et al. eds., 2008) ..................................................................... 94
Sex, Marriage and Family in World Religions (Don S. Browning, M. Christian Green & John Witte, Jr. eds., 2009)....................................93
Stephanie Weiland Bowling & Ronald J. Werner-Wilson, FatherDaughter Relationships and Adolescent Female Sexuality: Paternal Qualities Associated with Responsible Sexual Behavior 3 J. HIV/AIDS Prevention & Educ. Adolescents & Child. 5 (2003) ............................. 67
Teacher, School Sued Over Gay Fairy Tale, NPR (April 27, 2006) ........ 96 The Meaning and Significance of Marriage in Contemporary Society, in
Contemporary Marriage: Comparative Perspectives on a Changing Institution (Kingsley Davis ed., 1985) ................................................... 7 Todd Starnes, Atty Says School Threatened, Punished Boy Who Opposed Gay Adoption, Fox News Radio............................................................ 96 Todd Starnes, Christian Teacher Under Investigation for Opposing Homosexuality, Fox News Radio (Oct. 19, 2011) ................................. 96 W. Bradford Wilcox et al., Institute for American Values, Why Marriage Matters: Thirty Conclusions from the Social Sciences 20 (3rd ed. 2011) .............................................................................................................. 53 William Blackstone, Commentaries .................................................... 7, 65 Witherspoon Institute, Marriage and the Public Good: Ten Principles (2008) ........................................................................................ 64, 66, 72
xiii

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 15
PRIOR OR RELATED APPEALS Bishop v. Smith, No. 14-5003, pending in this Court, involves a constitutional challenge to Oklahoma’s definition of marriage as only the union between a man and a woman.
Additionally, there is a pending appeal in the United States Court of Appeals for the Ninth Circuit addressing the constitutionality of Nevada’s definition of marriage. Sevcik v. Sandoval, No. 12-17668.
xiv

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 16
INTRODUCTION As with other issues of domestic-relations law, choosing a definition of marriage in today’s world presents a clash between deeply held interests and values. On one hand are the interests of Utah citizens who have formed intimate, committed relationships with someone of the same sex—and in some cases are raising or wish to raise children together—and who want the State to confer on them the benefits of marriage. The State respects and values those citizens and their children as both equal before the law and fully entitled to order their private lives in the manner they have chosen. On the other hand are the long-term interests of all Utah’s children—both now and in future generations. They cannot defend their own interests. The State thus has a duty to consider their interests in deciding whether to abandon the man-woman definition of marriage. And Utah voters, in enacting the constitutional amendment known as Amendment 3, reaffirmed among other things their firm belief—also supported by sound social science—that moms and dads are different, not interchangeable, and that the diversity of having both a mom and a dad is the ideal parenting environment.

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 17
That model is not intended to demean other family structures, any more than giving an “A” to some students demeans others. As between mutually exclusive models of marriage, the man-woman model is simply the one the State and its people believe is best for children.
What makes the decision about redefining marriage particularly poignant is not merely the uncertainty inherent in predicting its longterm effects. It is also the mounting evidence that such a redefinition poses real, concrete risks to children—especially in future generations. Many of those risks flow from the inevitable effect of shifting the public meaning of marriage away from a largely child-centric institution— what Justice Alito (without disagreement from the other Justices) called a “conjugal” view of marriage—and toward a more adult-centric or “consent-based” view. See United States v. Windsor, 133 S. Ct. 2675, 2718 (2013) (Alito, J, dissenting). As detailed below, the specific longterm risks to children include:
(1) a risk of increased self-interest in parental decision-making on a range of issues, including recreation, career choices and romantic relationships; (2) a risk of increased fatherlessness (and motherlessness), with all the emotional, social and economic damage that has been shown to create; and
2

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 18
(3) a risk of reduced birthrates, with the demographic and economic crises that could bring. Given the stakes, the State has important and compelling interests in— and certainly a rational basis for—minimizing each of those risks. Determining the proper balance between competing interests in the marriage debate falls squarely within what the Supreme Court in Windsor called the States’ “broad[ ] authority to regulate the subject of domestic relations . . . .” United States v. Windsor, 133 S. Ct. 2675, 2690 (2013). Different states have struck a different balance than Utah’s, and Windsor held that choice is protected by the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” Id. at 2692. Yet States like Utah that decide to place greater weight on the benefits to children of retaining the gendered definition of marriage are entitled to the same deference and respect. Anything less would effectively federalize domestic relations law. Because the district court did not give proper deference to the choice of Utah’s citizens, the State requests that this Court reverse.
3

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 19

JURISDICTION

The district court had jurisdiction under 28 U.S.C. §§ 1331,

1343(3). That court’s decision was entered on December 20, 2013.

Memorandum Decision and Order (“Decision”) at 53, attached as

Addendum 1. That same day, Utah’s Governor and Attorney General

(“State Defendants”) filed a notice of appeal. App. 2770. This Court has

appellate jurisdiction under 28 U.S.C. § 1291.

ISSUE PRESENTED

Whether the Fourteenth Amendment’s Equal Protection Clause or

its Due Process Clause requires Utah to change its definition of

marriage from the union of a man and a woman to the union of two

persons.

Preservation: The State raised this issue throughout its

summary judgment briefing. App. 108-178.

FACTUAL AND PROCEDURAL STATEMENT

A.

The States’ traditional authority over marriage

In cases spanning three centuries, the Supreme Court has

emphasized that “[t]he whole subject of the domestic relations of

husband and wife, parent and child, belongs to the laws of the states,

and not to the laws of the United States.” Ex parte Burrus, 136 U.S.

4

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 20
586, 593-94 (1890); Simms v. Simms, 175 U.S. 162, 167 (1899) (same); Rose v. Rose, 481 U.S. 619, 625 (1987) (same); 133 S. Ct. at 2691 (quoting Burrus). The States’ power to define marriage flows from the fact that “[t]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . . [and] the Constitution delegated no authority to the government of the United States on the subject .” Haddock v. Haddock, 201 U.S. 562, 575 (1906), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942).
Thus, marriage and domestic relations is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975). And Supreme Court precedent over the years has taught “solicitude for state interests, particularly in the field of family and family-property arrangements.” United States v. Yazell, 382 U.S. 341, 352 (1966). Indeed, “[i]nsofar as marriage is within temporal control, the States lay on the guiding hand.” Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979).
In Windsor, the Supreme Court reaffirmed the States’ traditional authority over marriage. 133 S. Ct. at 2691. In declaring § 3 of the federal Defense of Marriage Act unconstitutional, the Court emphasized
5

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 21
the States’ “historic and essential authority to define the marital relation,” on the understanding that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’” Id. at 2692, 2691 (quoting Williams, 317 U.S. at 298 (alteration in original)). The Court further noted that, “[c]onsistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.” Id. at 2691. Specifically, the Court held that New York’s recognition of same-sex marriage was “without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.” Id. at 2692. Congress went astray there, the Court held, by “interfer[ing] with the equal dignity of same-sex marriages … conferred by the States in the exercise of their sovereign power.” Id. at 2693.
6

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 22

B.

History of the man-woman definintion

The understanding of marriage as a union between a man and a

woman and its purpose of uniting members of the opposite sex and their

children into family units recognized by society was, until recently,

universally accepted by courts, legal scholars, philosophers and

sociologists. See, e.g., 1 William Blackstone, Commentaries *422

(describing the relationship between parent and child as “consequential

to that of marriage, being its principal end and design: and it is by

virtue of this relation that infants are protected, maintained, and

educated”). In the words of sociologist Kingsley Davis:

The family is the part of the institutional system through which the creation, nurture, and socialization of the next generation is mainly accomplished…. The genius of the family system is that, through it, the society normally holds the biological parents responsible for each other and for their offspring. By identifying children with their parents … the social system powerfully motivates individuals to settle into a sexual union and take care of the ensuing offspring.1

1 The Meaning and Significance of Marriage in Contemporary Society, in Contemporary Marriage: Comparative Perspectives on a Changing Institution 7-8 (Kingsley Davis, ed. 1985) App. 1043-1044; see also Amicus Curie Brief of Scholars of History and Related Disciplines at 11-22, Case 12-144, U.S. Supreme Court; App. 292-296.
7

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 23
This historic understanding was reflected in prominent
dictionaries from the time of the Fourteenth Amendment’s framing and
ratification.2 Indeed, the country’s leading expert on family law during
that era opined that: “[m]arriage between two persons of one sex could
have no validity, as none of the ends of matrimony could be
accomplished thereby. It has always, therefore, been deemed requisite
to the entire validity of every marriage … that the parties should be of
different sex.”3
The Supreme Court has taken the same view:
[C]ertainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, 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 . . . . Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (emphasis added).
More recently, the Supreme Court has continued to acknowledge
2 E.g., Noah Webster, Etymological Dictionary 130 (1st ed. 1869); ; Joseph E. Worcester, A Primary Dictionary of the English Language 176 (1871); ; John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States 105 (1856). 3 Joel Prentiss Bishop, Commentaries on the Law of Marriage & Divorce Vol. 1 at 175 (1st ed. 1852)
8

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 24
the historical roots and societal importance of man-woman marriage. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 386 (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, 13 (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) (“Marriage and procreation are fundamental to the very existence and survival of the race.”). Indeed, just last year the Supreme Court reiterated that until recently, “marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Windsor, 133 S. Ct. at 2689.
This conception is not uniquely American. Until a decade ago, “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). In the words of eminent anthropologist Claude LeviStrauss, “the family—based on a union, more or less durable, but
9

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 25

socially approved, of two individuals of opposite sexes who establish a

household and bear and raise children—appears to be a practically

universal phenomenon, present in every type of society.” The View

From Afar 40-41 (1985), App. 1026-1027. In short, marriage has long

been understood as “a social institution with a biological foundation.” 1

Claude Levi-Strauss, Introduction, in A History of the Family: Distant

Worlds, Ancient Worlds 5 (Andre Burguiere, et al. eds., 1996).

C.

History of Amendment 3

The history of Utah’s definition of marriage begins with a federal

mandate that required Utah to limit marriage to the union of one man

and one woman. To become a State, Utah had to adopt a virtually

“irrevocable” State constitutional provision that “forever prohibited”

polygamous marriage and thereby made adherence to monogamous

marriage (at the time undoubtedly understood as between one man and

one woman) the only alternative. UTAH CONST. art. III.

Since then, the State has always adhered to a definition of

marriage as the union of one man and one woman and has never

recognized as a marriage any other kind of relationship. Initially, at

least since 1898, the State’s definition was derived from adoption of the

common law, Utah Code § 68-3-1 (adopting common law of England),
10

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 26
which defined marriage as “the voluntary union for life of one man and one woman, to the exclusion of all others.” Hyde v. Hyde, [L.R.] 1 P. & D. 130 (1866) (Lord Penzance). Over time, Utah chose to expressly codify the common-law definition of marriage. In 1977, the legislature included on the list of prohibited and void “marriages” a union “[b]etween persons of the same sex.” 1977 Utah Laws, 1st Special Session, Chap. 1, § 1 (now codified at Utah Code § 30-1-2(5)).
Subsequent legal challenges to the traditional definition of marriage in other parts of the country prompted Utah (and many other States) to enact laws and/or amend their constitutions to further protect the historic definition of marriage. While a few scattered cases were filed earlier, in the 1990’s same-sex couples began filing suits in state courts asserting that defining marriage as between one man and one woman violated their state constitutional rights. Several state courts rejected these arguments. App. 211. However, some reached the opposite conclusion, ruling that their state constitutions required the state to permit single-sex marriages, or at least afford such couples the benefits of marriage. Id.
In particular, the Vermont Supreme Court ruled in 1999 that Vermont had to offer all the benefits of marriage to same sex-couples,
11

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 27
Baker v. State, 744 A.2d 864, 886-87 (Vt. 1999). That action led the
Vermont legislature to create a new legal status called “civil unions.”
1999 Adj. Sess. No. 91, § 3; Vt. Stat. Ann. Tit. 15, § 23. Likewise, the
Massachusetts Supreme Judicial Court in 2003 held that its state
constitution required the redefinition of marriage to include same-sex
unions. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass.
2003).
Against this background, the 2004 Utah Legislature enacted a
provision entitled “Marriage recognition policy”:
(1)(a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter.
(b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married.
(2) Nothing in Subsection (1) impairs any contract or other rights, benefits, or duties that are enforceable independently of this section.
Utah Code § 30-1-4.1. The statute makes plain two purposes: (1) to
codify Utah’s existing definition of marriage as between one man and
one woman, and (2) to protect the rights of any couple, including same-
12

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 28
sex partners, to continue to govern their relationships through enforceable private contracts.
At the same time, the Utah Legislature approved a Joint Resolution that placed a proposed constitutional amendment on the upcoming November 2004 general election ballot. The proposal, which was known as Amendment 3 and became Article 1, § 29 of the Utah Constitution, stated:
(1) Marriage consists only of the legal union between a man and a woman.
(2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect. Laws 2004, H.J.R. 25 § 1, App. 191, 347. After approval by the Utah electorate, Amendment 3 would prevent the type of judicial redefinition of marriage that had occurred in Massachusetts and Vermont. That is because the amendment provides constitutional protection against a state court redefinition of Utah’s existing statutory definition of marriage, and prevents judicial attempts to side-step that definition. As explained to the voters: Constitutional Amendment Number 3 avoids a result in Utah similar to that of other states where state statute [defining marriage] has been determined to be in conflict with the state constitution. The Amendment raises to
13

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 29

constitutional status principles relating to marriage that are now expressed only in statute. Because the Amendment places those principles in the Utah Constitution, any potential conflict between the Utah Constitution and the statutory provision expressing the same principle is eliminated.

Utah Voter Information Pamphlet, General Election November 2, 2004,

at 34, App. 347.

The proposed amendment spurred a healthy and robust public

debate. The views of both sides were well-financed, well-articulated,

and well-supported by prominent political figures and scholars, as well as by business, religious, and other community leaders. App. 327, 353-

423. The tenor of the political discourse tended toward the intellectual and legalistic—remarkable for a campaign on an issue that stirs strong and deep feelings among most citizens. Id.
Utah’s voters approved the constitutional amendment by a margin

of 65.9% to 34.1%. App. 322, 352. On January 1, 2005, Amendment 3,

now known as Article I, § 29, became part of the Utah Constitution.

D.

Other Utah laws encouraging mother-father

parenting

Utah’s compelling interest in and commitment to children being

raised by a biological mother and father, or other man-woman unions, is

reflected throughout its domestic relations laws. The State’s
14

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 30
commitment begins even before a couple is married and any children are born. “[T]o enhance the possibility of couples to achieve more stable, satisfying and enduring marital and family relationships,” the State provides for and encourages marital counseling before a couple secures a marriage license. Utah Code § 30-1-30.
After a couple has a child, Utah law emphasizes that “[i]t is in the best interests and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Utah Code § 62A-4a201(1)(c). Whenever possible the Division of Child and Family Services must “protect the integrity of the family.” Id. § 62A-4a-103(2)(b). Child-welfare-worker training emphasizes “the importance of maintaining the parent-child relationship whenever possible” and “the preference of providing in-home services” over removing a child from his or her parents. Id. § 62A-4a-107(5)(a) and (b). Child welfare workers are directed to “make reasonable efforts to prevent or eliminate the need for removal of a child from the child’s home” and to determine “whether there are services available” that would “eliminate the need to remove the child” from the home. Id. §§ 62A-4a-203(1)(a) and 202.1(3)(a).
15

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 31
The purposes of Utah’s Juvenile Courts likewise include “preserv[ing] and strengthen[ing] family ties.” Id. § 78A-6-102(5)(g). And the Juvenile Court Act specifically provides:
It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents. … For these reasons, the court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so. Id. § 78A-6-503(8). Elsewhere the statute emphasizes that “[t]he interests of the state favor preservation and not severance of natural familial bonds . . . .” Id. § 78A-6-503(10)(d). Utah adoption law similarly allows adoption only to “adults who are legally married to each other in accordance with the laws of this state,” and does not permit adoption by a “single adult,” id. § 78B-6117(2), if that person “is cohabitating in a relationship that is not a legally valid and binding marriage under the laws of this state.” Id. § 78B-6-117(3); see also id. § 78B-6-102(4). For adoptions of children in the custody of the Division of Child and Family Services, preference is
16

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 32

given to “a man and woman who are married to each other.” Id. § 78B-

6-117(4); see also id. § 62A-4a-607(1)(b).

E.

Recent experimentation in other States

Most States have followed a path similar to Utah’s. Currently, 33

States define marriage as between one man and one woman, including

29 states that have a constitutional provision so providing. Addendum

2. Of those, 20 states have an additional constitutional provision

precluding government sanction of any other marriage-like relationship.

App. 205.

Same-sex marriage is legal in 17 states. Addendum 2. Eleven

states have voluntarily authorized the marriages through the political

process, almost half of them within the past year. Id. The other six

States that allow same-sex marriages were compelled to do so by

judicial decision. Id.

F.

Procedural history of this case

Plaintiffs are three same-sex couples. App. 71-73. Two desired to

get married but could not under Utah’s laws. Id. The third married in

Iowa but wanted Utah to recognize that marriage. Id. 72. Plaintiffs

filed suit against the Utah Governor and Attorney General and the Salt

Lake County Clerk in their official capacities, challenging Article 1, § 29
17

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 33

and Utah statutes defining marriage consistently with the

constitutional provision. Id. 68, 73-74. Plaintiffs argued that Utah’s

definition of marriage violated the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the United States

Constitution. They requested a declaratory judgment so stating, and a

permanent injunction barring enforcement of the challenged laws. Id.

68 et seq.

Plaintiffs and State Defendants filed cross-motions for summary

judgment on October 11, 2013. Id. 108, 1747, 1943, 2005. The district

court heard oral argument on December 4. Id. 2915, and issued a 53-

page memorandum decision and order on December 20, 2013.

G.

The district court’s decision

The district court held that Utah’s definition of marriage violates

the Fourteenth Amendment in two main respects. But before analyzing

the merits, the district court first determined that neither Windsor nor

Baker v Nelson, 409 U.S. 810 (1972), controlled its decision. As to

Windsor, the district court reasoned that federalism concerns were

insufficient to save Utah’s definition of marriage. Decision at 13. The

court then determined that Baker—which squarely rejected the same

claims Plaintiffs asserted—“is no longer controlling precedent.”
18

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 34
Decision at 16. Although the Supreme Court has never expressed any doubts about Baker, the district court reasoned that it had been superseded by Supreme Court decisions holding that sex is a quasisuspect class (Craig v. Boren, 429 U.S. 190 (1976)), that States cannot irrationally target and impose legal disabilities on citizens based on their sexual orientation (Romer v. Evans, 517 U.S. 620 (1996)), and that States cannot criminalize private sexual conduct (Lawrence v. Texas, 539 U.S. 558 (2003)). Id. at 14. Even more important to the district court was the fact that two dissenting Justices (Roberts, C.J. and Scalia, J.) both “foresaw” that the Windsor decision “would precede” state and federal lawsuits addressing the constitutionality of state laws defining marriage. Id. at 15
On the merits, the district court announced, first, that the Due Process Clause gives Plaintiffs “a fundamental right to marry that protects their choice of a same-sex partner.” Id. at 31. The court said that “the ability to procreate” was not a relevant distinguishing factor between opposite-sex and same-sex couples for purposes of marriage, based on its view that procreation “is not a defining characteristic of conjugal relationships from a legal and constitutional point of view.” Id. at 26. The court also decided it did not have to follow the controlling
19

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 35
fundamental-rights analysis in Washington v. Glucksberg, 521 U.S. 702 (1997), because the “Supreme Court did not adopt this line of reasoning in the analogous case of Loving v. Virginia”—a curious observation given that Loving was decided some 30 years before Glucksberg. See Loving at 1. Decision at 28. Ultimately, the court determined that its fundamental rights holding was “required” by Lawrence v. Texas, 539 U.S. 558 (2003) at least as interpreted by Justice Scalia’s dissent, which the district court quoted. Id. at 30-31.
Second, the court concluded that Utah’s marriage laws, which require both men and women to marry someone of the opposite sex, actually treat the genders unequally. Id. at 34-35. Purporting to “[a]pply[] the same logic” as Loving, the court determined that the equal application of traditional marriage laws to men and woman did not preclude a finding of gender discrimination because the “equal application” of anti-miscegenation laws did not save those laws from heightened constitutional scrutiny. Id. at 35.
Although the district court purported to “find” that the laws at issue discriminate on the basis of sex and are therefore subject to heightened scrutiny, the court ultimately declined to analyze whether those laws actually satisfy heightened scrutiny because, in the court’s
20

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 36

view, they do not even satisfy rational-basis review. Id. at 35. To

begin, the district court determined its rational-basis analysis would

not consider “whether extending marriage benefits to heterosexual

couples serves a legitimate governmental interest. . . . [Rather,] [t]he

court must . . . analyze whether the State’s interests in responsible

procreation and optimal child-rearing are furthered by prohibiting

same-sex couples from marrying.” Id. at 42-43 (emphasis added). From

that perspective, and without questioning the legitimacy of Utah’s

interests, the district court found “no rational connection between”

traditional marriage and the State’s “goal of fostering an ideal family

environment for a child.” Id. at 42-43, 46-47.

Based on these conclusions, the district court enjoined Utah from

enforcing the challenged marriage laws. State Defendants immediately

appealed.

H.

Stay proceedings

The district court refused to stay its injunction pending appeal.

App. 2772. State Defendants immediately and unsuccesfully requested

a stay from this Court. App. 2779. The State then petitioned Justice

Sotomayor, Circuit Justice for the Tenth Circuit, for a stay. App. 2781,

21

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 37
2875. Justice Sotomayor referred the request to the full Supreme Court, which granted a stay pending resolution of this appeal. App. 2914.
SUMMARY OF ARGUMENT A few short months ago, the Supreme Court held in United States v. Windsor that states have the authority under the federal Constitution to abandon the traditional man-woman definition of marriage and to redefine it in genderless terms—a power the Court said falls within the States’ “broad[ ] authority to regulate the subject of domestic relations . . . .” 133 S. Ct. 2675, 2690 (2013). The question here is whether Utah can use that same authority to retain the manwoman definition that has prevailed not only since the origins of this Nation, but since the beginning of history. For three independent reasons, the State retains that authority, and the district court was incorrect to conclude otherwise based on its novel reading of the Fourteenth Amendment’s guarantees of due process and equal protection. A. One reason the State retains that authority is that the Supreme Court has already held as much in Baker v. Nelson, 409 U.S. 810 (1972). That decision dismissed on the merits the same Fourteenth Amendment challenges to the man-woman definition that the district
22

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 38
court sustained in this case. Baker is therefore binding here. See, e.g., Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker is also fully consistent with Windsor; indeed, it reflects the same principles of federalism that Windsor would later reaffirm.
In any event, as this Court is well aware, lower federal courts do not have authority to depart from binding Supreme Court precedent merely because they believe it has been undercut by what the district court called subsequent “doctrinal developments.” The Supreme Court has held in no uncertain terms that, “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions,” lower courts “should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
B. Even if Baker were not controlling, the Fourteenth Amendment does not deprive Utah of its authority to retain the manwoman definition of marriage. Contrary to the district court’s conclusion, there is no fundamental Fourteenth Amendment right to a State marriage certificate allowing two people of the same sex to marry. As courts around the country have uniformly held, such a “right” does
23

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 39
not come close to satisfying the standard for fundamental constitutional rights set by the Supreme Court in Washington v. Glucksberg, 521 U.S. 702 (1997), namely, that the alleged right be “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Id. at 720-21 (quotations and citations omitted). Not surprisingly, the district court did not even attempt to meet this standard—again, incorrectly treating Glucksberg as having been silently overruled by Windsor.
To be sure, the district court was right in refusing to find that the State acted with “animus” in retaining its traditional marriage definition. And it was right in finding that under controlling Circuit law the Plaintiffs’ equal-protection claims are governed by rationalbasis review.
However, the district court erred in concluding that the State lacks an adequate justification for retaining the man-woman definition. As much as the State values and supports its gay and lesbian citizens, it is not the State’s burden, on rational-basis review, to justify the implicit exclusion of same-sex couples from the State’s definition of marriage. Whether or not the definition is under- or over-inclusive, all
24

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 40
the State need show is that the definition as it stands rationally advances legitimate State interests. See, e.g., Johnson v. Robison, 415 U.S. 361, 385 (1947). Because the district court did not and could not deny that the current definition of marriage rationally advances the State’s interests in (at a minimum) effective parenting and adequate procreation, the court should have rejected the Plaintiffs’ equalprotection claim as a matter of law.
C. Even if the Court were to apply heightened scrutiny—as the district court suggested in dicta, Utah’s chosen definition is still well within its constitutional authority. Besides avoiding risks to religious freedom and civic peace, Utah’s decision to retain that definition substantially advances at least three distinct State interests that are not only legitimate, but important and compelling.
First, maintaining the man-woman definition helps prevent further erosion of the traditional concept of marriage as being principally a child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults. See Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting) (discussing distinction between “conjugal” and “consent-based” views of marriage). A society can have but one understanding of marriage: It is either a
25

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 41
uniquely man-woman institution, or it is not. Because man-woman unions are unique in their ability to produce children, maintaining the man-woman definition reinforces the child-centric view of marriage. And by reinforcing that understanding, the State gently encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children. Given its enormous benefits to children generally, the State has an important and compelling interest in encouraging selfless parenting.
Second, and more specifically, maintaining the man-woman definition increases the likelihood that children will be raised by their biological mothers and fathers—or at least a mother and father—in intact families. Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and even economically when reared in an intact home by both biological parents. Such arrangements benefit children by (a) harnessing the strong biological connections that parents and children naturally feel for each other, and (b) providing what experts have called “gender complementarity”—i.e., diversity—in parenting. Common sense and social science also teach that the second-best arrangement for children
26

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 42
is to be raised by a biological parent and an adoptive parent of the opposite sex.
In a variety of ways explained in detail below, the traditional definition of marriage encourages parents and would-be parents to raise their children in one of these preferred arrangements. And in a variety of ways, redefining marriage in genderless terms would likely reduce, over time, the proportion of children being raised in one of those arrangements—thus placing at serious risk the welfare of children who will be raised in other arrangements as a result.
Third, maintaining the man-woman definition helps to ensure adequate reproduction by parents willing and able to raise their children in stable homes. By providing special privileges and recognition to sexual unions that, as a class, are uniquely capable of procreation, the State gently encourages that vital activity. Indeed, that is why the Supreme Court has often called man-woman marriage “fundamental to our very existence and survival.” Loving, at 12. The State has a compelling interest in ensuring adequate reproduction and, conversely, in avoiding a definitional change that (over time) could help send its birthrate below replacement levels—as has already happened
27

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 43

in a number of nations and U.S. States that have adopted a genderless

definition.

For all these reasons, Utah has ample authority under the

Constitution to retain its man-woman definition of marriage.

STANDARD OF REVIEW

The Court reviews de novo a grant of summary judgment,

Christian Heritage Acad. v. Okla. Secondary Sch. Ass’n, 483 F.3d 1025,

1030 (10th Cir. 2007), which must be granted only when there are no

genuine disputes of material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a).

ARGUMENT

THE DISTRICT COURT ERRED IN HOLDING THAT UTAH LACKS CONSTITUTIONAL AUTHORITY TO RETAIN ITS GENDERED DEFINITION OF MARRIAGE.

A.

The district dourt’s decision contravenes Baker v.

Nelson, which is both controlling and consistent with

Windsor and the federalism principles it reaffirms.

The first dispositive error in the district court’s analysis is that it directly contravenes Baker v. Nelson, 409 U.S. 810 (1972), which itself anticipates and mirrors the principles of federalism and popular sovereignty later reiterated in Windsor.

28

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 44
1. Baker is controlling. In Baker, the U.S. Supreme Court summarily dismissed, “for want of a substantial federal question, “an appeal by two men whom the State of Minnesota denied a marriage license “on the sole ground that petitioners were of the same sex.” Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971). Such a summary dismissal is a decision on the merits by which “lower courts are bound … until such time as the Court informs (them) that (they) are not.” Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (internal quotation marks omitted). A summary dismissal like the one in Baker “without doubt reject[s] the specific challenges presented in the statement of jurisdiction,” and “prevent[s] lower courts from coming to opposite conclusions [1] on the precise issues presented and [2] necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). This case meets both Mandel prerequisites. First, Baker unmistakably presented the “precise issues” ruled on by the district court here. Baker, 191 N.W. 2d. at 185. Baker plaintiffs specifically claimed that the State’s denial of a marriage license “deprive[d] [them] of their liberty to marry and of their property without due process of law under the Fourteenth Amendment” and
29

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 45
“violate[d] their rights under the equal protection clause of the Fourteenth Amendment.” App. 221.
Second, the Minnesota Supreme Court “necessarily decided” these when it rejected claims that, by the denial of their application for a marriage license, “petitioners are deprived of liberty without due process and are denied the equal protection of the laws, both guaranteed by the Fourteenth Amendment.” Baker, 191 N.W. 2d. at 186. The court sharply rebuffed the claim that same-sex marriage was a fundamental right, holding that “[t]he due process clause of the Fourteenth Amendment is not a charter for restructuring [marriage] by judicial legislation.” Id. And the court held that equal protection was not offended by limiting marriage to a man and a woman without requiring proof of ability or willingness to procreate. According to the court, “the classification is no more than theoretically imperfect,” and “‘[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.’” Id. at 187 and n.4 (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940) (alteration in original)). The court also repudiated any analogy between the traditional definition of marriage and the anti-miscegenation laws invalidated in Loving: “[I]n commonsense and in a constitutional sense,
30

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 46
there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Id. at 187.
Given the analysis in the Minnesota Supreme Court’s opinion and in the jurisdictional statement challenging that decision, numerous courts have recognized the Supreme Court’s Baker decision as controlling on the constitutionality of State laws withholding marriage from same-sex couples. See e.g., Massachusetts v. U. S. Dep’t Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (“Baker does not resolve our own case [under DOMA] but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.”); Citizens for Equal Protection v. Bruning, 455 F.3d 859, 870-871 (8th Cir. 2006) (Baker mandates “restraint” before concluding “a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution”); Adams v. Howerton, 673 F.2d 1036, 1039 n.2 (9th Cir. 1982) (Baker is “a decision on the merits”) (quotation omitted); Donaldson v. State, 292 P.3d 364, 371 n.5 (Mont. 2012); (“The U.S. Supreme Court’s action in Baker has been described as binding precedent.”) (citations omitted). To our knowledge, no other federal
31

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 47
circuit or State supreme court has gone the other way. The district court likewise should have accepted Baker as controlling, and its failure to do so requires reversal.
2. The district court’s reasons for refusing to follow Baker are misguided.
For the district court, however, Baker was no more than a speed bump. It held that subsequent “doctrinal developments”—especially the majority opinion in Windsor—left Baker with “little if any precedential effect today.” Decision at 14. For two reasons, that is incorrect.
First, lower federal courts do not have the option of departing from binding precedent simply because they believe it has been undercut by later “doctrinal developments.” Although that possibilility had been suggested in later decisions, the Supreme Court eliminated that option in Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989). That decision held in no uncertain terms: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions,” lower courts “should follow the case which directly controls, leaving to this Court the prerogative of
32

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 48
overruling its own decisions.” Id. at 484. There is no doubt that Baker “directly controls” here.
Second, and more fundamentally, Windsor did not undercut Baker. Indeed, the Windsor majority expressly disclaimed any intention to reach the issue decided in Baker, stating that its “opinion and its holding are confined to those lawful marriages” already authorized by state law. 133 S. Ct. at 2696. That is why the majority did not even address Baker—much less criticize it—, which the Court surely would have done had it intended to overrule it. Similalry, neither Romer v. Evans, 517 U.S. 620 (1996), nor Lawrence v. Texas, 539 U.S. 558 (2003), addressed the constitutionality of state marriage laws, and neither mentions Baker.
Nor is there any inconsistency between the Baker and Windsor’s legal analysis. Windsor invalidated DOMA § 3 because New York conferred an “equal dignity” on same-sex couples that the federal statute “displace[d]” by “treating those persons as living in marriages less respected than others.” 133 S. Ct. at 2696. In concluding that DOMA “injure[d] those whom the State, by its marriage laws, sought to protect in personhood and dignity,” id. (emphasis added), the Court did
33

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 49
not create a free-standing substantive due process right for same-sex couples to marry.
Indeed, Windsor reinforced and complemented Baker by emphasizing the need to safeguard the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” 133 S. Ct. at 2692. The majority stressed that, “[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.” Id. at 2689-90. Most significantly, the Court reaffirmed that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’” Id. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287, 298 (1942)) (alteration in original). And it was precisely because of its understanding of the marital relation as “‘a virtually exclusive province of the States,’” id. at 2680 (quoting Sosna, 419 U.S. at 404), that the Court concluded that DOMA’s refusal to respect New York’s decision to permit same-sex marriage represented an impermissible “federal intrusion on state power.” Id. at 2692.
34

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 50
When read together, Baker and Windsor establish a principled, federalism-based resolution to the difficult question of same-sex marriage: Baker leaves the definition of marriage for every State to decide for itself, while Windsor prohibits the federal government from interfering in the decision to allow same-sex marriage. As stated by a group of federalism scholars cited by the Windsor majority, such “diversity of outcomes enables the democratic process to accommodate a higher proportion of our citizens’ views on [same-sex marriage] than would a uniform national answer. And it prevents the majority of States from impressing their policy preferences on the minority who want to recognize gay marriage.” Brief of Amici Curiae Federalism Scholars, United States v. Windsor, No. 12-307, at 9 (2012). Respecting that federalism-mandated diversity is also essential to individual freedom—or what Justice Kennedy has called “liberty in the fundamental political sense of the term.” See Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring) (the Framers “used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term”).4
4 As Justice Kennedy has also noted, federalism “allows the States great latitude under their police power to legislate as to the lives, limbs, health,
35

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 51

The district court should have respected the principled

compromise that the Supreme Court reached in Baker and Windsor, one

that permits a “diversity of outcomes” on the question of marriage

rather than mandating a “uniform national answer.”5 The district

court’s failure to respect that compromise—and its consequent refusal

to follow Baker—requires reversal.

B.

Viewed in light of the proper legal standards, the

district court’s due process and equal protection

holdings are legally erroneous.

Baker and Windsor were not the only casualties of the district

court’s due process and equal protection analyses. Those analyses

ignore or misapply controlling legal standards articulated by the

Supreme Court and, as a result, conflict directly with decisions by other

federal circuits as well as the highest courts of numerous states.

comfort and quiet of all persons.” Gonzales v. Oregon, 546 U.S. 243, 270 (2006)) (quotations and citations omitted). That principle applies with special force to State decisions about marriage, which have enormous implications for the emotional and physical “health” and “comfort” of the State’s children.
5 As for the district court’s mischaracterization of Justice Scalia’s dissent, see Decision at 13, his concerns about where the majority’s reasoning might lead cannot be taken as an endorsement of the notion that Windsor itself dictates same-sex marriage. 133 S. Ct. at 2709 (Scalia, J., dissenting) (agreeing that with regard to the state denial of marital status to same-sex couples “State and lower federal courts should take the Court at its word and distinguish away”).
36

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 52
1. There is no fundamental due-process right to marry someone of the same sex.
As to the Plaintiffs’ due process claim, the Supreme Court has expressed “reluctan[ce] to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). As a result, courts must “exercise the utmost care whenever . . . asked to break new ground in this field.” Id.
Disregarding that guidance, the district court announced a new fundamental right to same-sex marriage without even mentioning the great weight of authority that has gone the other way. See, e.g., Andersen v. King Cnty., 138 P.3d 963, 979 (Wash. 2006) (en banc) (“Plaintiffs have not established that at this time the fundamental right to marry includes the right to marry a person of the same sex.”); Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006) (“by defining marriage as it has, the New York Legislature has not restricted the exercise of a fundamental right”); Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006) (“we 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.”); Dean v. District of
37

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 53
Columbia, 653 A.2d 307, 333 (D.C. 1995) (“same-sex marriage cannot be called a fundamental right protected by the due process clause”); Baker, 191 N.W.2d at 186 (“The due process clause of the Fourteenth Amendment is not a charter for restructuring [marriage] by judicial legislation.”).6 Indeed, “no appellate court applying a federal constitutional analysis has reached this result[.]” Andersen, 138 P.3d at 979 (emphasis added), including the Supreme Court.
Determining whether there is a fundamental right to same-sex marriage is controlled by Washington v. Glucksberg, 521 U.S. 702 (1997), and requires two steps. The first is “a careful description of the asserted fundamental liberty interest,” and the second is adding to the canon only “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Id. at 720-21 (quotations and citations omitted; emphasis added). Carefully described, the interest asserted here is the fundamental right to marry someone of the same sex. As the decisions cited above have recognized, such an
6 Accord Jackson v. Abercrombie, 884 F. Supp. 2d 1065,1098 (D. Haw. 2012)2012) (no fundamental right to same sex marriage); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1017 n.9 (D. Nev. 2012).
38

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 54
interest is not “deeply rooted” but recently recognized, and even then by only a minority of states. Thirty-three states—66% of the country—are governed by laws like Utah’s, defining marriage as between one man and one woman.
The district court’s contrary conclusion erred in four critical ways. First, the district court mistakenly characterized Plaintiffs as “seeking access to an existing right, not the declaration of a new right.” Decision at 29 (emphasis added). Tellingly, however, every Supreme Court decision cited by the district court for the fundamental right to marry was premised on a male-female relationship. See Zablocki, 434 U.S. at 379 (“appellee and the woman he desired to marry were expecting a child in March 1975 and wished to be lawfully married before that time.”); Loving, 388 U.S. at 2 (describing the complainants as “Mildred Jeter, a Negro woman, and Richard Loving, a white man”). Indeed, the Supreme Court’s most recent pronouncement on the subject, Windsor, indicated that same-sex marriage is a “new” right, and rejected the district court’s assumption here that same-sex marriage is subsumed by the Court’s “right to marry” precedents:
It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same
39

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 55
status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. 133 S. Ct. at 2689 (emphasis added). Windsor then went on to note that “the limitation of lawful marriage to heterosexual couples . . . for centuries ha[s] been deemed both necessary and fundamental.” Id. at 2689 (emphasis added); see also Lawrence, 539 U.S. at 567, 578 (right to intimate same-sex relationship free of criminal penalty does not imply a right to “formal recognition” of that relationship). Under Windsor’s characterization, then, same-sex-marriage is the antithesis of a fundamental right. Second, the district court maintained that history and tradition were “insufficient reasons” to withhold recognition from the asserted right to same-sex marriage. Decision at 29. But that statement directly conflicts with Glucksberg, which involved an asserted right to assisted suicide. There the Supreme Court concluded there was no fundamental right at stake because of a “consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today.” 521 U.S. at 723 (emphasis added). The same is true here.
40

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 56
Third, the district court reasoned that a fundamental right to same-sex marriage is implicit in notions of liberty and autonomy. Decision at 23-24. Again, this reasoning conflicts with Glucksberg, where the Court emphasized that simply because “many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected.” Glucksberg, 521 U.S. at 727-28.7
Finally, the district court wrongly compared Utah’s marriage laws with anti-miscegenation laws. Decision at 51-52. Anti-miscegenation laws were odious measures that rested on invidious racial discrimination. In contrast to these relics of the slave-holding South, as the Windsor majority put it, “marriage between a man and a woman no doubt ha[s] been thought of by most people as essential to the very definition of that term and to its role and function throughout the
7 Accord Stenberg v. Carhart, 530 U.S. 914, 956-57, 961 (1999) (Kennedy, J., dissenting) (criticizing the majority for neglecting the States’ “critical and legitimate role in legislating on the subject of abortion” and pointing out that the Constitution permits States to “take sides in the abortion debate and come down on the side of life, even life in the unborn”); Gonzales v. Carhart, 550 U.S. 124, 133 (2007) (sustaining a federal statute premised on
governmental interests the majority had rejected in Stenberg).
41

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 57
history of civilization.” Windsor, 133 S. Ct. at 2689. In other words,
defining marriage as the union of one man and one woman may be
controversial in today’s political climate, but it is hardly invidious.
For all these reasons, this Court should reverse and follow the
many federal circuit and State supreme court decisions that have
uniformly declined to recognize a fundamental right to same-sex
marriage.
2. Under the district court’s own conclusions about the legitimate purposes of Utah’s definition, Utah does not deny same-sex couples the equal protection of the laws.
Although the district court was correct in declining to hold that
Utah’s marriage laws are motivated by animus against gays and
lesbians,8 the court erred in holding that Utah’s marriage laws
nevertheless violate the plaintiffs’ right to equal protection under the
Fourteenth Amendment. That holding directly conflicts with numerous
8 Plaintiffs cited Romer v. Evans, 517 U.S. 620 (1996), and United States v. Windsor, 133 S. Ct. 2675 (2013),), in support of their animus argument. But the district court was appropriately “wary of adopting such an approach here in the absence of more explicit guidance” from the Supreme Court. Decision at 39. Even more fundamentally, the district court properly concluded that “it is impossible to determine what was in the mind of each individual voter.” Id. at 40. There is no need for this Court to revisit this aspect of the district court’s ruling.
42

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 58
other decisions holding that state laws defining marriage as only
between a man and a woman pass equal-protection scrutiny. E.g.
Bruning, 455 F.3d at 867-68; Sevcik, 911 F. Supp. 2d at 1015-16.9
Under the district court’s own conclusions about the purposes
underlying those laws, and applying the proper rational-basis standard,
those laws plainly pass equal-protection muster.
Rational basis applies. Acknowledging this Court’s holding in
Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008), the
district court correctly concluded that this Court “currently applies only
rational basis review to classifications based on sexual orientation.”
Decision at 36. At least nine other circuits have reached the same
conclusion.10 Most importantly, the Supreme Court has never applied
9 Accord Jackson, 884 F. Supp. 2d at 1111-1115; In re Kandu, 315 B.R. 123, 145-146 (Bankr. W.D. Wash. 2004); Adams v. Howerton, 486 F. Supp. 1119, 1124-25 (C.D. Cal. 1980),), aff’d on other grounds, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 363 (D.C. 1995) (Steadman, A.J., concurring); Morrison v. Sadler, 821 N.E.2d 15, 23- 31 (Ind. Ct. App. 2005); Hernandez v. Robles, 855 N.E.2d 1, 7-9 (N.Y. 2006) (plurality op.); Baker, 191 N.W.2d at 186-87; In re Marriage of J.B. & H.B., 326 S.W.3d 654, 676-78 (Tex. App. 2010);).
10 See, e.g., Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012);2012); Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); 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); Thomasson v. Perry, 80 F.3d 915, 927-28 (4th Cir. 1996); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir.
43

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 59
heightened scrutiny based on sexual orientation despite repeated invitations to do so, including most recently in Windsor. See, e.g., U.S. Br. at 18-36, App. 2441-59 (arguing that “classifications based on sexual orientation should be subject to heightened scrutiny”). On the contrary, Windsor held that DOMA § 3 was invalid for lacking a “legitimate purpose,” 133 S. Ct. at 2696 (emphasis added). This is standard rational-basis language, and it contrasts sharply with the requirements of strict scrutiny, see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (strict scrutiny requires showing that law is “narrowly tailored” to “further compelling governmental interests”) (emphasis added), and intermediate scrutiny, see, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976) (intermediate scrutiny requires that gender classifications “serve important governmental objectives” and be “substantially related to achievement of those objectives.”) (emphasis
1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).
Just last month, a Ninth Circuit panel repudiated its prior precedent and applied heightened scrutiny to a Batson challenge alleging that a juror was improperly struck based on sexual orientation. Smithkline Beecham Corp. v. Abbott Labs, __ F.3d __, 2014 WL 211807 (9th Cir., January 21, 2014) (Reinhart, J.). That panel’s conclusion that Windsor adopted heightened scrutiny without saying so is incorrect for reasons explained in the text.
44

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 60
added). In sum, there is no basis for this Court to revisit its own wellsettled precedent on this point.
The district court was also wrong to “find”—albeit in dicta—that heightened scrutiny applies because it said Utah’s marriage definition discriminates on the basis of sex. In allowing only marriages between men and women, Utah law affects men as a class and women as a class identically, to the disadvantage of neither.
Contrary to the district court’s analogy, moreover, Loving involved strict scrutiny of a wholly invidious marriage regime bent on racial oppression, which justified the Court’s summary rejection of arguments based on a formal equality between the races. But in the sex-discrimination context, “[a]ll of the [Supreme Court’s] seminal. . . decisions. . .have invalidated statutes that single out men or women as a discrete class for unequal treatment.” Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999) (collecting cases, emphasis added). In contrast, Utah’s marriage definition is not “directed toward persons of any particular gender” and does not “affect people of any particular gender disproportionately such that a gender-based animus [could] reasonably
45

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 61
be perceived.” Sevcik, 911 F. Supp. 2d at 1005.11 The district court’s contrary conclusion was erroneous.
Rational basis is satisfied. The district court held instead that Utah’s marriage laws could not survive even under rational basis review. That holding, however, fundamentally “misapprehend[s] the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). Especially when applied to state laws, such review is a “paradigm of judicial restraint” that denies courts any “license . . . to judge the wisdom, fairness, or logic of legislative choices.” F.C.C v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 314 (1993).
Accordingly, Utah’s marriage laws must be “accorded a strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 320 (1993). They must be upheld “so long as there is a plausible policy reason for the classification.” Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (emphasis added). Those reasons, moreover, “may be based on rational
11 Accord, e.g., Jackson, 884 F. Supp. 2d at 1098-99; Smelt v. County, 374 F. Supp. 2d 861, 876-77 (C.D. Cal. 2005) aff’d in part, vacated in part, 447 F. 3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298, 1307-08 (M.D. Fla. 2005).
46

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 62
speculation unsupported by evidence or empirical data.” Beach Commc'ns, Inc., 508 U.S. at 315. Indeed, “rational-basis review must be particularly deferential” when reviewing challenges to marriage laws. Bruning, 455 F.3d at 867.
Most important, under rational-basis review, a classification must be sustained if the inclusion of one group provides a legitimate governmental purpose, and the addition of other groups would not. Johnson v. Robison. Thus, under Johnson’s inclusion analysis, it is not Utah’s burden 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.” Abercrombie, 884 F. Supp. 2d at 1108 (citation omitted). Instead, “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.” Id. Because the district court did not dispute that the laws at issue here further legitimate interests that would not be furthered to the same degree by allowing same-sex marriages, it should have rejected the Plaintiffs’ equal protection claims as a matter of law.
47

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 63
Indeed, as the court acknowledged, “No one disputes” “that marriage benefits serve not just legitimate, but compelling governmental interests . . . .” Decision at 42. Under proper rational basis review, that should have ended the district court’s inquiry.
Yet the district court improperly reframed the test, asking whether the state’s compelling interests were “furthered by prohibiting same-sex couples from marrying.” Id. at 43 (emphasis added). As just discussed, that is not Utah’s burden. Indeed, under Johnson’s inclusion analysis, underinclusiveness challenges like the one the district court framed here virtually always fail rational-basis review. As the Supreme Court has held, “[e]ven if [a] classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn by [the legislature or people] imperfect, it is nevertheless the rule that in [rational basis review] ‘perfection is by no means required.’” Vance v. Bradley, 440 U.S. 93, 108-09 (1979) (quoting Phillips Chemical Co. v. Dumas Sch. Dist., 361 U.S. 376, 385 (1960)). As the Court has also instructed, federal courts “will not overturn such [classifications] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [classifications] were irrational.” Kimel v.
48

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 64
Florida Bd. of Regents, 528 U.S. 62, 84 (2000) (citation and quotation
marks omitted; emphasis added). If rational basis review were
otherwise, innumerable legislative classifications and regulations would
fall.
Accordingly, based solely on the district court’s misstatement and
misapplication of the rational-basis standard, this Court can reverse the
district court’s equal-protection holding as well as its due-process
holding.12
12 Based on its holding that Utah’s marriage laws are unconstitutional, the district court considered as moot the claim of Plaintiffs Karen Archer and Kate Call that Utah’s laws are unconsitituional to the extent they prohibit recognition of their marriage that was validly performed in Iowa. Decision at 51. However, as explained above, Utah’s marriage laws are constitutional and Utah has a constitutionally valid policy to not recognize same-sex marriages regardless of where they are performed. Therefore, the constitution does not require Utah to recognize the Plaintiffs’ Iowa marriage. See e.g., Nevada v. Hall, 440 U.S. 410, 422 (1979). Forcing a state to recognize same-sex marriages performed elsewhere “would be the most astonishingly undemocratic, counter-majoritarian political development in American history.” Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147, 150 (1998). And Section 2 of the federal Defense of Marriage Act – which was not addressed in Windsor or challenged below—squarely forecloses these Plaintiffs’ claim to recognition in Utah. Windsor, 133 S. Ct. at 2682-83 (noting that section 2 of DOMA, 28 U.S.C. § 1738C, was not at issue and allows States to refuse to recognize same-sex marriages performed in other States).
49

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 65

C.

The district court erred in failing to give adequate

weight to Utah’s reasons, supported by common sense

and substantial social science, for retaining the man-

woman definition of marriage.

The district court’s error is confirmed by a careful examination of

Utah’s reasons for upholding marriage as the union of husband and

wife. Those reasons are not just rational, they are compelling. Indeed,

they are so compelling that until only a few years ago there was nearly

unanimous agreement among learned thinkers—from philosophers,

anthropologists and sociologists to eminent jurists and policy makers—

that stable marriages between men and women are indispensable to the

welfare of both children and society. Society has an existential need to

secure a sufficient social and economic base to care for the elderly; to

fund social welfare programs; and to foster the hope, self-sacrifice and

civic virtue that come only from a culture that treasures children as its

greatest asset. That is why, as the Eleventh Circuit observed, “It is

hard to conceive an interest more legitimate and more paramount for

the state than promoting an optimal social structure for educating,

socializing, and preparing its future citizens to become productive

participants in civil society.” Lofton v. Secretary of the Dep’t of Children

& Family Servs., 358 F.3d 804, 819 (11th Cir. 2004).

50

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 66
We next examine just four of the compelling reasons that underlie Utah’s decision to retain its gendered definition of marriage. Each represents a vital State interest. And each of them suffices to overturn the district court’s ruling under the controlling rational basis standard, which requires merely “a plausible policy reason for the classification.” Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (emphasis added). Each is likewise sufficient to sustain Utah’s decision under any form of heightened scrutiny. And although the State is not obligated to show harm, we nevertheless demonstrate some of the common-sense harms and risks that redefining marriage would likely pose to each of these State interests in the welfare of its children, present and future.
1. Utah’s marriage definition furthers the State’s vital interest in fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children.
At the most basic level, Utah has a critical interest in preserving the child-centric, husband-wife (“conjugal”) marriage culture that it has carefully nurtured since its inception as a State. Redefining marriage in an adult-centric, “consent-based” manner undermines that culture to the detriment of all Utah’s children.
51

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 67
The historic rationale for man-woman marriage. That culture—and the man-woman definition on which it is based—arises from a biological and sociological reality: Procreation is an inherently gendered enterprise; no child can be conceived without a man and a woman. And although sex between men and women naturally—and often accidentally—produces children, it does not necessarily produce stable families dedicated to protecting and nurturing those children.
Thus the perennial challenge for societies throughout history has been to establish a means of formally linking mothers and fathers with their offspring so as to maximize the welfare of children, and hence of the community.13 Marriage between the man and woman who create a child provides that essential link.
Hence, as the New York Court of Appeals has noted, until recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez, 855 N.E.2d at 8. Indeed, this gendered and child-centered understanding of marriage
13 Robert George et al., What is Marriage? Man and Woman: A Defense 28-30, 33-36, 97 (2012) App. 1463-1471, cited in Windsor, 133 S.Ct. at 2715, 2718 (Alito, J., dissenting).
52

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 68
has long been so ubiquitous, and considered so compelling by eminent
authorities, that to cite and quote even a small percentage of those
authorities could easily consume an entire book.14
Marriage as a social institution. Because of its critical social
functions, marriage is also one of our most important social institutions.
Such institutions are maintained by shared public meanings—a web of
expectations and understandings that profoundly influence behavior. 15
14 See, e.g., supra at Statement, Section B; accord 2 Charles de Montesquieu, The Spirit of Laws 101 (Thomas Nugent ed. 1873); Bronislaw Malinowski, Sex, Culture, and Myth 11 (1962) App. 1057; G. Robina Quale, A History Of Marriage Systems 2 (1988) App. 1033 (“Marriage, as the socially recognized linking of a specific man to a specific woman and her offspring, can be found in all societies.”); James Q. Wilson, The Marriage Problem 24 (2002) (“a lasting, socially enforced obligation between man and woman that authorizes sexual congress and the supervision of children” exists and has existed “[i]n every community and for as far back in time as we can probe”); see id. at 41; App. 1051; (“Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.”); W. Bradford Wilcox et al., Institute for American Values, Why Marriage Matters: Thirty Conclusions from the Social Sciences 20 (3rd ed. 2011) App. 456 (“[M]arriage across societies is a publicly acknowledged and supported sexual union that creates kinship obligations and resource pooling between men, women, and the children that their sexual union may produce.”).
15 As noted by the father of modern social anthropology, A.R. RadcliffeBrown, social institutions like marriage are “the ordering by society of the interactions of persons in social relationships.” A.R. Radcliffe-Brown, Structure and Function in Primitive Society 10-11 (1952). Accordingly, “a person [in a social institution] knows that he [or she] is expected to behave according to these norms and that the other person should do the same.” Id.
53

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 69
Because shared public meanings are the components of social
institutions, those institutions necessarily are changed when those
meanings are changed or are no longer sufficiently shared.16 And if
public meanings and norms change enough the institution can be
effectively “deinstitutionalized.” When that happens, another
institution, with different meanings and norms, can take the place of
the old one, and the social benefits generated by the original meanings
and norms either dissipate or disappear.17
Accordingly, if the man-woman definition at the core of society’s
understanding of marriage were replaced by a different meaning (i.e.,
16 See, e.g., Eerik Lagerspetz, The Opposite Mirrors: An Essay on the Conventionalist Theory of Institutions 28 (1995); Eerik Lagerspetz, On the Existence of Institutions, in On the Nature of Social and Institutional Reality 70, 82 (Eerik Lagerspetz et al. eds., 2001); Monte Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1 Duke J. Const. L. & Pub. Pol'y 1, 10-11 (2006); John R. Searle, Making the Social World: The Structure of Human Civilization 89-122 (2010) App. 1347-1357; John R. Searle, The Construction of Social Reality 32, 57, 117 (1995) App. 1282, 1290, 1322. As Prof. Searle explains: “The secret of understanding the continued existence of institutional facts is simply that the individuals directly involved and a sufficient number of members of the relevant community must continue to recognize and accept the existence of such facts. . . . The moment, for example, that all or most of the members of a society refuse to acknowledge [the social institution of] property rights, as in a revolution or other upheaval, property rights cease to exist in that society.” Id. at 117 App. 1322.
17 See, e.g., Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol'y 313, 327-28 (2008),), and sources cited therein.
54

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 70
the union of any two or more consenting adults), the existing meaning would become deinstitutionalized. As a result, the benefits produced by that meaning would either wane or be lost.
A given society, moreover, can have only one social institution denominated “marriage.”18 It cannot simultaneously have as shared, core meanings of the marriage institution both “the union of a man and a woman” and “the union of any two persons.” One meaning necessarily displaces the other, leading to different understandings, incentives and behaviors. Moreover, as the new meaning is mandated in texts, in schools, and in other parts of the public square, the old institution no longer channels or shapes perceptions and conduct.19
The law plays a critical role in shaping and preserving social institutions like marriage. As the eminent legal scholar Joseph Raz has explained, the law often supports social institutions “in order to give them formal recognition, bring legal and administrative arrangements
18 See, e.g., Stewart, Genderless Marriage, supra note 16, at 24-26, and sources cited therein. 19 See Carl E. Schneider, The Channeling Function in Family Law, 20 Hofstra L. Rev. 495, 498 (1992) (“[I]t is [social institutions’] very presence, the social currency they have, and the governmental support they receive which combine to make it seem reasonable and even natural for people to use them. Thus people can be said to be channeled into them.”).
55

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 71
into line with them, facilitate their use by members of the community who wish to do so, and encourage the transmission of belief in their value to future generations. In many countries this is the significance of the legal recognition of monogamous marriage . . . .”20 To be sure, marriage, like many other social institutions, has its own social conventions, norms, and shared understandings that extend beyond the law’s reach. Yet the law can also change the institution by suppressing, rather than reinforcing, existing conventions, norms, and shared understandings.
The State’s public interest in marriage. As presently understood in Utah, and as understood throughout most of history, marriage’s most vital public purpose is to encourage the creation of stable, husband-wife unions for the benefit of their children.21 People may also place great weight on romance, companionship and mutual economic support—which the man-woman marriage institution also supports and nurtures. But these private ends—though important—are
20 Joseph Raz, The Morality Of Freedom 161 (1986). 21 See, supra, Statement, Section B. The philosopher Bertrand Russell bluntly noted that, “[b]ut for children, there would be no need of any institution concerned with sex.” Bertrand Russell, Marriage & Morals 77 (Liveright 1970).
56

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 72
not the principal interests the State pursues by regulating marriage. The State’s fundamental public interest in marriage lies in maximizing the welfare of children—present and future. After all, children are the most vulnerable members of society, and the least capable of protecting their own interests.
First and foremost, the man-woman definition of marriage promotes the interests of children by fostering a generally child-centric marriage culture that encourages parents routinely to subordinate their own private interests—emotional, sexual, career, recreational, etc.—to the needs of their children, present and future. That encouragement flows not just from the law—including restrictions on divorce and prohibitions on such things as child neglect22—but also from the cultural expectations, norms and ideals that make marriage a social institution.23 In a host of ways, such rules, norms and expectations guide husband-wife couples to sacrifice their personal desires for the benefit of their children. They teach, as one New York court aptly put
22 See, e.g., Utah Code § 30-3-11.3 (Divorcing parents required to attend course to “sensitize [them] to their children’s needs both during and after the divorce process.”); Utah Code § 78A-6-302 et seq. (Abuse, Neglect and Dependency Proceedings); see also supra at Statement, Section D. 23 A.R.Radcliffe-Brown, Structure and Function in Primitive Society, supra, at 10-11.
57

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 73
it, that marriage is “not primarily about adult needs for official recognition and support, but about the well-being of children and society . . . .” Hernandez v. Robles, 805 N.Y.S.2d 354, 360 App. Div. 2005, aff’d 855 N.E.2d 1 (N.Y. 2006).
Child-centered vs. adult-centered marriage. The district court’s ruling rests on a very different understanding of the principal public purpose and meaning of marriage—one centered on accommodating adult relationship choices. In the district court’s view, the most important purpose of marriage is to provide “‘state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another[,] and to join in an economic partnership and support one another and any dependents.’” Decision at 25 (quoting Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 961 (N.D. Cal. 2010)). This formulation ignores Utah’s stated rationale for its marriage definition. And tellingly, it does not mention children, except indirectly through its generic reference to “dependents.” Even then, children are mentioned only as an afterthought—to be supported, like any other “dependent,” if they happen to be part of the household—rather than as a principal object of the marital relationship.
58

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 74
While this adult-centric conception of marriage may have gained ascendancy in other jurisdictions, it does not hold in Utah, where the People, through multiple democratic processes, have chosen a different and more child-centric model. They and, hence, the State have steadfastly sought to reserve unique social recognition for man-woman marriage so as to guide as many procreative couples as possible into the optimal, conjugal childrearing model. Accordingly, redefining marriage as a genderless, adult-centric institution would fundamentally change Utah’s child-centered meaning and purpose of marriage. As the New Jersey Supreme Court put it in Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006): “To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin.”
The district court brushed aside this reality, but it cannot be escaped. A statement on marriage and the law by 101 legal scholars and social scientists notes that “the basic understanding of marriage” underlying much of the advocacy for redefining marriage “is seriously flawed.” Institute for American Values, Marriage and the Law: A Statement of Principles 18 (2006), App. 542. That is because “[i]t is adult-centric, turning on the rights of adults to make choices,” and because it “fail[s] to treat with intellectual seriousness any potential
59

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 75
consequences that changing the basic legal definition of marriage may have for the children of society,” such as “disconnect[ing] marriage from its historic connection to procreation.” Id. Definitions matter— especially for so essential a social institution as marriage. And while other jurisdictions may choose to elevate adult-centric relationships, Utah has chosen a different course—using its constitutionally protected police power, including its authority over domestic-relations law, to further its considered judgment about how best to protect the interests of all its children.
Effects of the district court’s redefinition. Utah’s selfsacrificing, child-centric view of marriage and parenting is important to a range of parental decisions beyond ensuring that the child is raised by both her father and her mother. For example, it might encourage parents to forego abusing alcohol or drugs; avoid destabilizing extramarital affairs; avoid excessively demanding work schedules; or limit time-consuming hobbies or other interests that take them away from their children.
This is not to say that other parents cannot make the same selfless, child-centric choices as a biological mother and father; they clearly can. But, as Justice Alito noted in Windsor, redefining marriage
60

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 76
to include same-sex couples would be a powerful symbolic statement that, at bottom, marriage is more about the interests of adults than the needs of children, and it would thereby undermine the self-sacrificing, child-centric model of marriage that Utah seeks to foster. Windsor, 133 S. Ct. at 2715-16, n.6 (Alito, J., dissenting). That redefinition might result (at least in the short term) in a few more children living in “married” households—but at the price of reorienting the whole concept of marriage toward adult interests and away from the welfare of children.
Utah cannot simply ignore this seismic shift. As the 101 legal and social-science experts put it:
One may see these kinds of social consequences of legal change as good, or as questionable, or as both. But to argue that these kinds of cultural effects of law do not exist, and need not be taken into account when contemplating major changes in family law, is to demonstrate a fundamental lack of intellectual seriousness about the power of law in American society. Marriage and the Law, supra, at 26, App. 550. In sum, the redefinition mandanted by the district court would change the public meaning of marriage so as to convey that marriage is about the interests of adults, not the needs of children. In myriad ways, that in turn would pose serious risks to the interests of children
61

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 77
generally. Utah has an important—indeed, compelling—interest in preventing those risks. See e.g., United States v. Griffin, 7 F.3d 1512, 1517 (10th Cir. 1993) (“Important government interests include . . . minimizing the risk of harm to . . . the public.”); Marcavage v. City of New York, 689 F.3d 98, 105 (2d Cir. 2012) (managing potential risks “advances a substantial government interest.”)
2. Utah’s marriage definition furthers the State’s vital interest in children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home.
The most obvious and important impact of this shift—mandated by judicial redefinition of marriage in genderless terms—would be the loss of the State’s ability to give special preference and recognition to families consisting of children being raised either by both biological parents or at least by two parents of opposite sex. Common sense, long experience, and sociological evidence confirm that, in the aggregate, children do best when raised by their biological mothers and fathers in stable marriage unions. These child-welfare benefits flow both from biology and gender complementarity (i.e. diversity) in parenting, and would be seriously disrupted or reduced if Utah were forced to redefine its marriage law to include same-sex couples.
62

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 78
The importance of mother-father parenting. Intuitively, a family structure based on the biological connection between parents and their natural children helps maximize the commitment of both parents to their children’s welfare, unifying the parents’ emotional and social commitments with instinctive biological attachments. That intuition finds confirmation in a wealth of social science research. As one reviewer explains, “research 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.”24
This biological advantage is further enhanced by the unique, gender-based contributions that fathers and mothers make to their children’s wellbeing. While the value of gender diversity in parenting is common sense to many, the notion likewise finds confirmation in a growing body of social science research. As a group of 70 scholars recently concluded, the “empirical literature on child well-being
24 Kristin Anderson Moore et al., Marriage From a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It, Child Trends Research Brief 6 (June 2002) App. 1101 (emphasis added) (hereinafter “Moore”); accord id. at 1-2; App. 1096-97; (“[I]t is not simply the presence of two parents, . . . but the presence of two biological parents that seems to support children’s development.”).
63

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 79
suggests that the two sexes bring different talents to the parenting
enterprise, and that children benefit from growing up with both
biological parents.”25 In other words, the benefits flow not just from
having two parents of any gender, but from what scholars call “gender-
differentiated” or mother-father parenting: “The burden of social
science 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.”26 Indeed, research
shows that men and women parent children differently, and in so doing
contribute distinctly to healthy child development. 27
25 Witherspoon Institute, Marriage and the Public Good: Ten Principles 18 (2008) App. 507.
26 David Popenoe, Life Without Father: Compelling New Evidence That Fatherhood & Marriage are Indispensable for the Good of Children & Society 146 (1996) App. 1069; accord, e.g., Norval D. Glenn, The Struggle for SameSex Marriage, 41 Soc’y 25, 27 (2004) (“[T]here are strong theoretical reasons for believing that both fathers and mothers are important, and the huge amount of evidence of relatively poor average outcomes among fatherless children makes it seem unlikely that these outcomes are solely the result of the correlates of fatherlessness and not of fatherlessness itself.”); Wilson, The Marriage Problem, supra, at 169 App. 1052; (“The weight of scientific evidence seems clearly to support the view that fathers matter.”).
27 Although he later embraced the movement to redefine marriage to include same-sex couples, child-development expert Michael Lamb pointed out nearly 40 years ago that “[b]oth mothers and fathers play crucial and qualitatively different roles in the socialization of the child.” Michael E. Lamb, Fathers: Forgotten Contributors to Child Development, 18 Human Development 245,
64

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 80
Moreover, the law itself “historically . . . has recognized that natural bonds of affection”—i.e., biological connections—“lead parents to act in the best interests of their children.” Parham v. J.R., 442 U.S. 584, 602 (1979). 28 Accord, e.g., Gonzales v. Carhart, 550 U.S. 124, 159 (2007) (“Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”). Moreover, as New York’s high court put it, “[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.” Hernandez, 855 N.E.2d at 7 (emphasis added). And Justice Brennan summarized it well: “the optimal situation for the child is to have both an involved mother and
246 (1975); accord Dean Byrd, Gender Complementarity and Child-reading: Where Tradition and Science Agree, 6 J. L. & Fam. Studs. 213 (2004); see also A. Dean Byrd & Kristen M. Byrd, Dual-Gender Parenting: A Social Science Perspective for Optimal Child Rearing, in Family Law: Balancing Interests and Pursing Priorities 382-387 (2007). 28 As Blackstone put it centuries ago, there is “implant[ed] in the breast of every parent that natural . . . insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish.” 1 William Blackstone, Commentaries, *447.
65

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 81
an involved father.” Bowen v. Gilliard, 483 U.S. 587, 614 (1987)
(Brennan, J., dissenting).29
Conversely, experience and research alike confirm that children
suffer when procreation and childrearing occur outside stable man-
woman marriages. As a leading research survey explains:
Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes than do children in intact families headed by two biological parents. Parental divorce is also linked to a range of poorer academic and behavioral outcomes among children. There is thus value for children in promoting strong, stable marriages between biological parents.30
29 The importance of mother-father parenting is so universally recognized that the United Nations Convention on the Rights of the Child declares that a child “as far as possible, [has the right] to know and be cared for by his or her parents.” Convention on the Rights of the Child 1577 U.N.T.S. 3, 47.
30 Moore, Marriage from a Child’s Perspective, supra, at 6; App. 1101; accord Marriage and the Public Good: Ten Principles, , supra, at 17; App. 506; (“[C]hildren raised in single-parent families without the benefit of a married mother and father are two to three times more likely to experience serious negative life outcomes such as imprisonment, depression, teenage pregnancy, and high school failure, compared to children from intact, married families— even after controlling for socioeconomic factors that might distort the relationship between family structure and child well-being.”); Bruce J. Ellis et. al, Does Father Absence Place Daughters at Special Risk for Early Sexual Activity and Teenage Pregnancy?, 74 Child Dev. 801 (2003) (concluding that father absence is associated with early sexual behavior of girls, even when other factors, such as stress and poverty, were accounted for); Stephanie Weiland Bowling & Ronald J. Werner-Wilson, Father-Daughter Relationships and Adolescent Female Sexuality: Paternal Qualities Associated with Responsible Sexual Behavior, 3 J. HIV/AIDS Prevention & Educ. Adolescents
66

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 82
These findings are reinforced by a study comparing three groups
of young adults: those who were conceived by sperm donors, those
adopted as infants, and those raised by their biological parents.
Researchers “learned that, on average, young adults conceived through
sperm donation are hurting more, are more confused, and feel more
isolated from their families. They fare worse than their peers raised by
biological parents on important outcomes such as depression,
delinquency and substance abuse.”31 Studies also show that, even when
they have two caregivers of the same sex, children who grow up without
a father or a mother are socialized in a way that undermines their
ability to function effectively in a dual-gender society.32
& Child. 5, 13 (2003) (“Daughters whose fathers gave them little time and attention were more likely to seek out early sexual attention from male peers.”); Douglas W. Allen, High School Graduation Rates Among Children of Same-sex Households, 11 Rev. Econ. Household, 635-58 (2013); (“Children living with gay and lesbian families [in Canada] in 2006 were about 65% as likely to graduate compared to children living in opposite sex families. Daughters of same sex parents do considerably worse than sons.”), available at http://www.springer.com/economics/microeconomics/journal/11150?hideChart =1#realtime (last visited Jan. 31, 2014).
31 Elizabeth Marquardt et al., Institute for American Values, My Daddy’s Name is Donor: A New Study of Young Adults Conceived Through Sperm Donation 5 (2010); App. 746.
32See Lawrence L. Wu & Brian C. Martinson, Family Structure and the Risk of a Premarital Birth, 54 American Sociological Rev. 210 (1993) teens of
67

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 83
This body of research explains why delinquency rates among boys
whose fathers are absent from their homes is significantly higher than
the rates for boys with a father at home.33 It also explains why
“daughters raised outside of intact marriages . . . are approximately
three times more likely to end up young, unwed mothers than are
children whose parents married and stayed married.”34
married parents have fewer pregnancies out of wedlock); Mark D. Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res. 752, 752-770 (2012); App. 1218; (finding significant differences between children raised by married mothers and fathers and those raised in other family structures, including those raised by same-sex couples). Professor Regnerus’ study has been criticized by advocates of the “moms-and-dads-areinterchangeable” theory. But in his thorough response, he concludes that, even accounting for his critics’ concerns, the data “still reveal numerous differences between adult children who report maternal same-sex behavior (and residence with her partner) and those with still-married (heterosexual) biological parents.” Mark D. Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analysis, 41 Soc. Sci. Res. 1367, 1367 (2012); App. 1238; see also, Allen, High School Graduation Rates Among Children of Same-sex Households, supra 30.
33 Lynn D. Wardle, The Fall of Marital Stability and the Rise of Juvenile Delinquency, 10 J. L. & Fam. Studs. 83 (2007) (comprehensive review of literature and social science).
34 Richard G. Wilkins, Adult Sexual Desire and the Best Interests of the Child, 18 St. Thomas L. Rev. 543, 594 (2005) (internal quotation marks omitted). Accord, e.g., Cynthia C. Harper and Sara S McLanahan, Father Absence and Youth Incarceration, 14 J. Res. Adolescence 369, 384-86 (2004)) (finding that compared with all other family forms, “[y]outh who never had a father in the household had the highest incarceration odds”).
68

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 84
In addition, when parents, and particularly fathers, do not take responsibility for raising their children, the State is often forced to assist through costly social welfare programs and other means. A recent study estimates that divorce and unwed childbearing “costs U.S. taxpayers at least $112 billion each and every year, or more than $1 trillion each decade.”35 This cost is not related to whether single parents or same-sex couples can be wonderful and loving parents; they clearly can. These studies simply show that both the biological connection and the gender diversity inherent in the married, motherfather parenting model powerfully enhance child welfare, even as they protect the State’s fisc. Such considerations likewise provide compelling support for Utah’s marriage model.
The success of Utah’s marriage laws and policies. To achieve this and other benefits to children, Utah has chosen to embrace and, where possible, fortify the social institution of marriage in its traditional child-centric form. Thus, recognizing the close relationship between the law and social institutions governing family life, Utah has sought in its marriage laws to promote the gendered parenting model
35 Benjamin Scafidi, Institute for American Values, The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and All Fifty States 5 (2008); App. 1378.
69

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 85
that has long been part of the social institution of marriage. That model privileges marriage over all other relationships thereby signaling to all would-be parents that the State wants them to do their best to ensure that any children they conceive are raised by their biological mother and father within a stable marital union. Official State encouragement, and the social understandings that flow from it, increase the overall likelihood that children will be raised in the parenting environment that Utah and her citizens have found optimal.
In Utah, this is not mere theory or conjecture. Whatever the effectiveness of traditional marriage laws in other states, Utah’s marriage laws and policies are achieving remarkable results. As Professor Price’s affidavit demonstrates, Utah has the nation’s lowest percentage of unwed births—19.4%, less than half the national average of 41%. App. 426. Utah also ranks first among states in the percentage of children being raised by both parents from birth until age 17—78.6% compared with a national average of 60.5%. App. 427. This no doubt explains why the cost to Utah taxpayers associated with children who
70

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 86
live in other arrangements is among the lowest in the nation.36 But far more important is the benefit to children themselves: As Professor Price concludes, “compared to children born in all the States, a child born in Utah has the best chance of knowing and being reared by his or her biological married mother and father.” App. 427. That fact also likely explains why Utah has a very small percentage of its children growing up in poverty—15%, the fourth lowest in the Nation, compared to a national average of 23%.37 It also likely explains why Utah children, even in the lowest-income households, have one of the highest rates of upward mobility.38
36 That cost for Utah taxpayers is estimated at $276 million annually, or about $108 per capita, which is the 13th lowest per capita cost in the country. See Scafidi, Taxpayer Costs, supra, at 38, App. 1411. 37 See Kids Count Data Center, Annie E Casey Foundation, Children in Poverty http://datacenter.kidscount.org/data/tables/43-children-inpoverty?loc=1&loct=2#ranking/2/any/true/868/any/322 (last visited January 30, 2014). 38 See Raj Chetty et. al, Where is the Land of Opportunity? The Geography of Intergenerational Mobility in the U.S., Table IV, NBER Working Paper No. 19843 (January 2014), http://obs.rc.fas.harvard.edu/chetty/mobility_geo.pdf (last visited Jan. 21, 2014) (concluding that children of low-income families in Salt Lake City have one of the highest rates of upward mobility among the Nation’s 50 largest metropolitan areas).
71

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 87
Such real-world benefits to children are exactly what Utah’s marriage policies are intended to produce, and what the district court’s decision both ignores and imperils.
How a redefinition would undermine Utah’s Interests. Compelling Utah to redefine marriage to include same-sex couples—forcing it to replace its gendered marriage definition with a genderless one—would necessarily undermine the State’s interest in promoting biological and gender-differentiated parenting in at least seven distinct ways. And most of these, by the way, have nothing to do with whether same-sex parenting is on average comparable in quality to man-woman parenting.
First, as many commentators have observed, because procreation is an inherently gendered affair, redefining marriage in genderless terms would break the critical conceptual link between marriage and procreation.39 As a matter of biological fact, a same-sex couple cannot provide a child with the advantages either of two biological parents or of
39 See, e.g., George, What Is Marriage?, supra, at 7, App. 1452; (stating that if marriage is redefined the law will teach that marriage is “essentially an emotional union” that has no inherent connection “to procreation and family life”); Witherspoon Institute, Marriage And The Public Good, supra, at 18, App. 301; (“Same-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage.”).
72

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 88
gender complementarity in parenting: By definition, either the child’s biological father or mother (or both) will be absent. In teaching that same-sex unions are on a par with traditional man-woman marriages, and thus that biological ties are of little or no importance to parenting, the redefinition ordered by the district court would tend to encourage more parents to raise their existing biological children without the other biological parent.
Given the manifest ills of fatherless parenting, the State has a compelling interest in sending a powerful message to women that, whenever possible, marriage to the fathers of their children is very important to the welfare of those children and to society itself. By the same token, the State has a powerful interest in encouraging fathers to marry the mothers of their children. Redefining marriage to include same-sex couples would undermine that message. It would suggest that fathers and mothers are interchangeable, that the absence of one or the other is inconsequential, and therefore that there is no particular need for a single parent to marry the father or mother of his or her child, or
73

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 89
to marry someone else who will (ideally through adoption) provide the
gender complementarity the child needs.40
Second, for similar reasons, the loss of the State’s clear message
in favor of biological mother-father parenting within marriage would
likely result in a higher percentage of couples conceiving children
without the stability that marriage would otherwise bring. That too
would result in less parenting within the State’s preferred parenting
model. As a practical matter, that would mean primarily more
fatherless parenting, with the recognized ills that model often visits on
mother and child alike.
Third, replacing the child-centric or “conjugal” view of marriage
with a more adult-centric view would undermine the existing social
norm that often leads parents in acceptable but not ideal marriages to
make self-sacrifices and remain married to the parents of their children.
40 This is one reason that a large group of prominent scholars from all relevant academic fields has expressed “deep[ ] concerns about the institutional consequences of same-sex marriage for marriage itself.” Witherspoon Institute, Marriage And The Public Good, supra, at 18-19, App. 507-508. Among other things, they show that “[s]ame-sex marriage . . . would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget.” Id. at 19, App. 508; Glenn, The Struggle For SameSex Marriage, supra, at 26 (expressing concern about “politically motivated denial of the value of fathers for the socialization, development, and well being of children”).
74

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 90
Over time, this too would likely lead to more children being raised—and
for longer periods—without both of their biological parents.
Fourth, by shifting the understanding of marriage to a more
adult-centric view, the redefinition ordered by the district court would
also undermine the current social norm (weakened though it may be)
that those who wish to have children—or to engage in conduct that
could lead to children—should get married. If marriage is about
accommodating the needs and desires of adults rather than meeting the
needs of children (and society), then it is no longer an obligation–
something one is supposed to do if one wants to have children. Rather,
it is simply an option, to be chosen if, but only if, it is what one wants or
what one thinks will make one happy.41
41 See, e.g., Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. Marriage & Fam. 848, 848, 850, 853, 858 (2004) (explaining that “weakening of the social norms that define people’s behavior in … marriage” shifts the focus of marriage from serving vital societal needs (including the needs of children) to facilitating the personal fulfillment of individuals and could even culminate, in the fading away of marriage, to the point that it becomes “just one of many kinds of interpersonal romantic relationships”); Glenn, The Struggle for Same-Sex Marriage, supra, at 25-26 (explaining that the historical purposes of marriage—“regulation of sexual activity and the provision for offspring that may result from it”—have already been weakened by the “blurring of the distinction between marriage as an institution and mere “‘close relationships,’” and warning that “acceptance of the arguments made by some advocates of same-sex marriage would bring this trend to its logical conclusion, namely, the definition of marriage as being for the benefit of those who enter into it rather than as an
75

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 91
Fifth, and most obviously, a genderless definition of marriage
would likely increase the number of children being raised by same-sex
parents. That could happen because the couple decides to raise
together an existing child of one of the partners. Or it could result from
the conception of a new child through surrogacy or sperm-donation.
Either way, such children will not benefit from the State’s preferred
mother-father parenting model; often they will have no way of knowing
even the identity of both biological parents. And recent evidence on
same-sex parenting, while not conclusive, indicates that same-sex
parenting arrangements are less effective than married biological
mothers and fathers in producing positive outcomes in the lives of their
children.42
institution for the benefit of society, the community, or any social entity larger than the couple”).
42 See Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships?, supra, at 752-770, App. 1218; (finding significant differences between children raised by married mothers and fathers and those raised in other family structures, including those raised by same-sex couples). Regnerus, Answering Critics of the New Family Structures Study with Additional Analysis, supra, at 1367, App. 1238; see also id. at 1377, App. 1248; (“Until much larger random samples can be drawn and evaluated, the probability-based evidence that exists—including additional NFSS analyses herein—suggests that the biologically-intact two-parent household remains an optimal setting for the long-term flourishing of children.”). Indeed, researchers have noted that many of the studies purporting to show no difference in parenting suffer from deep methodological flaws. See, e.g.,
76

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 92
Sixth, if the traditional male-female aspect of marriage were
thrown out as irrational, it would likely become more difficult to resist
other innovations that would lead to additional children being raised
without a father or mother. As one of the same-sex marriage advocates
quoted in Justice Alito’s Windsor opinion put it, “conferring the
legitimacy of marriage on homosexual relations will introduce an
implicit revolt against the institution into its very heart . . . . For
starters, if homosexual marriage is OK, why not group marriage[?].”
Ellen Willis, Can Marriage Be Saved? A Forum, The Nation 16 (2004),
cited in Windsor, 133 S. Ct. at 2716 n.6 (Alito, J., dissenting).43 To the
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), App. 1263; (noting significant flaws in 59 studies conducted on same-sex parenting that involved small, convenience samples and that the generalized claim of no difference was “not empirically warranted”); see also Lofton, 358 F.3d at 325 (noting critiques of these studies, including “significant flaws in the[se] studies’ methodologies and conclusions, such as the use of small, self-selected samples; reliance on self-report instruments; politically driven hypotheses; and the use of unrepresentative study populations consisting of disproportionately affluent, educated parents.”)
43 Accord, e.g., Judith Stacey, In the Name of the Family: Rethinking Family Values in the Postmodern Age 122-23, 126-27 (1996); id. at 127 (“If we begin to value the meaning and quality of intimate bonds over their customary forms, there are few limits to the kinds of marriage and kinship patterns people might wish to devise. . . . [P]erhaps some might dare to question the dyadic [i.e., two-person] limitations of Western marriage and seek some of the benefits of extended family life through small-group marriages . . . .”).
77

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 93
extent they involve people of both sexes, such arrangements are especially likely to produce children who will not be raised by one or both of their biological parents, much less by a man-woman couple. The State cannot simply ignore the risks to children arising from such institutional developments which advocates of same-sex marriage themselves predict will happen if that change were adopted.
Seventh, a court-ordered redefinition of marriage could well lead to its wholesale “privatization”—for example, by enactment of a civilunion regime for all couples, with religious and other organizations being free to offer the title of “marriage” as they see fit. Commentators from across the political spectrum—including some gay-rights groups— have advocated for that and other forms of governmental retreat from the whole subject of marriage.44 In Utah and elsewhere, judicial
44 E.g., Clarence Page, An odd push to privatize marriage, Chicago Tribune (April 3, 2013) http://articles.chicagotribune.com/2013-04-03/news/ct-oped0403-page-20130403_1_ron-paul-licenses-should-government; Press Release, Congressman Bob Barr’s Remarks at 2011 Log Cabin National Convention (April 30, 2011) http://www.logcabin.org/pressrelease/congressman-bobbarrs-remarks-at-2011-log-cabin-national-convention/; Froma Harrop, Take Government out of the Marriage Business, Real Clear Politics (July 2, 2013) http://www.realclearpolitics.com/articles/2013/07/02/take_government_out_of _the_marriage_business_119046.html; Keith Ablow, When It Comes to Marriage, Government Should Divorce Itself, Fox News (March 27, 2013)
78

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 94
invalidation of the traditional definition of marriage could well create a broad political consensus for such a radical step.
Such a development—and the consequent reduction in governmental encouragement for marriage—could well cause a substantial decline in the public’s interest in marriage, similar to the decline already seen in many parts of Europe. For example, a 2002 survey by the International Social Survey Programme reported that only 15.7 percent of Swedes, 16.9 percent of Belgians and 22.7 percent of Netherlanders believed that “married people are generally happier.” Even more troubling, only 30.9% of Swedes, 31.5% of Belgians, and a mere 25.3% of Netherlanders thought “people who want children ought to get married.”45 Not surprisingly, marriage participation rates in these three nations are similarly low.46 Any social institution with so
http://www.foxnews.com/opinion/2013/03/27/when-it-comes-to-marriagegovernment-should-divorce-itself/. 45 International Social Survey Programme, Family and Changing Gender Roles III: 2002, ZA Study 3880 at 26-27, 30-31 (September 2004). 46 In 2011, the marriage rate per 1,000 population in Belgium was 4.1, in the Netherlands it was 4.3, and in Sweden it was 5.0. See European Commission, Crude Marriage Rate, Selected Years, 1960-2011 at http://epp.eurostat.ec.europa.eu/statistics_explained/index.php?title=File:Cru de_marriage_rate,_seleted_years,_19602011_(per_1_000_inhabitants).png&filetimestamp=20130130111229. By
79

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 95
little public support and participation has lost much of its societal value and can no longer serve as effectively as an instrument of social policy.47
There are good reasons to believe that over time, the redefinition of marriage ordered by the district court could do just that. The kind of “privatization” just discussed would provide one mechanism. And if marriage is privatized, or if it comes to be understood as primarily for the benefit of adults rather than children, then those who wish to have children (or to engage in conduct that could lead to children) may choose not to marry if they believe other social arrangements would better serve their individual needs. Given the stakes—especially for children—the State has a compelling interest in minimizing that risk.
Mutually exclusive conceptions of marriage. In sum, given the strong connection in Utah law and culture between marriage and children, redefining marriage in genderless terms would seriously
comparison, Utah’s 2011 marriage rate was 8.6 and the national average was 6.8. See Centers for Disease Control & Prevention, Marriage Rates by State: 1990, 1995, and 1999-2011 at http://www.cdc.gov/nchs/data/dvs/marriage_rates_90_95_99-11.pdf.. Given Utah’s young population, the real divergence would likely be even starker. 47 See, e.g., Allan Carlson, Deconstruction of Marriage: The Swedish Case, 44 San Diego L. Rev. 153, 154 (2007) (Sweden's experience is one of “the deliberate political elimination of marriage as a meaningful legal and social institution”).
80

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 96
undermine, if not destroy, the State’s message that biological motherfather parenting is best for children. How can the State insist that fathers (or mothers) are essential to their children’s well-being if it is forced to redefine marriage to make fathers (or mothers) optional? Or how can the State insist that fathers and mothers are not interchangeable when its own marriage law effectively makes them interchangeable?
That is not to say that the State lacks compassion for the children of single parents or couples in same-sex relationships. State officials and community leaders remain concerned with their welfare, just as they are concerned with the welfare of every child. A panoply of public and private welfare programs, from subsidized healthcare to childhood education, reflects that concern. But the demand that marriage be redefined to include same-sex couples forces a difficult choice between mutually exclusive conceptions of marriage—one aimed at affirming adult-chosen relationships or one that is child-centric, binding a mother, a father, and their child in a legal institution. Each conception carries unavoidable and unintended costs. Yet in the considered judgment of the State and its people, the costs and risks—especially to
81

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 97
children generally—of redefining marriage in genderless terms vastly outweigh the costs of preserving the traditional definition.
Such difficult and often painful decisions are at the heart of the State’s authority over domestic-relations matters. Utah’s citizens and legislators have weighed the competing interests—including the compelling interest in the welfare of all the State’s children—and have chosen the policy they believe to be sound. That choice should be respected.
3. Utah’s man-woman definition furthers the State’s vital interest in ensuring adequate reproduction by parents willing and able to provide a high-quality home environment for their children.
Utah has a strong and compelling interest not only in the quality of parenting its children receive, but also in the number of children who will be conceived in the future and raised in high-quality home arrangements. Societies with low birthrates eventually suffer a host of problems—from reduced economic growth and dynamism, to inadequate funding for critical social welfare programs, to depopulation of communities, historic cities and even the nation itself.48 In the
48 See, e.g., Lynn Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harvard J. L. & Pub. Pol’y 771, 784-86 (2001).
82

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 98
developed world, moreover, depopulation is a serious, present concern: Birth rates in the United States and in many other countries have fallen to below replacement levels, “raising the specter of a future ratio of dependent aged (mostly retired) persons to working aged Americans that portends burdens upon the national economy.”49
Correlation between genderless marriage and lower birthrates. The need to ensure adequate procreation is one reason why, since time immemorial, and even in societies that embraced homosexual liaisons, marriage has always been conceived as a union of a man and a woman for the purpose of having children.50 That is also why the Supreme Court has repeatedly reiterated that man-woman marriage is “fundamental to our very existence and survival.” Loving
49 Wardle, Multiply and Replenish, supra, at 789; see also See Jean-Pierre Guengant, The Proximate Determinants During the Fertility Transition, http://www.un.org/en/development/desa/population/publications/pdf/fertility/c ompleting-fertility/2RevisedGUENGANTpaper.PDF (last visited Jan. 24, 2014); see also Central Intelligence Agency, Country Comparison: Total Fertility Rate, The World Factbook, https://www.cia.gov/library/publications/the-worldfactbook/rankorder/2127rank.html (last visited Jan. (last visited Jan. 24, 2014) (listing fertility rates worldwide). 50 Wardle, Multiply and Replenish, supra at 784-86 (discussing ancient Roman and Greek marriage laws and traditions and citing authorities).
83

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 99
at 12; Zablocki at 384; Skinner at 541; Maynard v. Hill, 125 U.S. 190, 211 (1888).
It is also striking that fertility and birthrates tend to be markedly lower in nations and states that have embraced same-sex marriage. For example, the birthrate in states (and Washington, D.C.) that have adopted a genderless marriage definition is significantly lower than the national average. In fact, the six lowest birthrate states have all adopted that redefinition, while none of the nine highest birthrate states have done so.51
Demographers have shown that, for a society to maintain a constant population over time, it must achieve a fertility rate—the average number of children born to a woman over her lifetime—of approximately 2.1.52 The national average in the United States is 2.06,
51 Joyce A. Martin, et al., Ctrs. for Disease Control & Prevention, National Vital Statistics Reports—Births: Final Data for 2012, Table 12 (December 30, 2013), http://www.cdc.gov/nchs/data/nvsr/nvsr62/nvsr62_09.pdf (The six lowest: Connecticut (10.2), Maine (9.6), Massachusetts (10.9), New Hampshire (9.4), Rhode Island (10.4), and Vermont (9.6). The nine highest: Alaska (15.3), Idaho (14.4), Kansas (14.0), Nebraska (14.0), North Dakota (14.4), Oklahoma (13.8), South Dakota (14.5), Texas (14.7), and Utah (18.0)). 52 See Guengant, supra, at http://www.un.org/en/development/desa/population/publications/pdf/fertility/c ompleting-fertility/2RevisedGUENGANTpaper.PDF.
84

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 100
already somewhat less than the replacement rate.53 But the average in
states that have adopted a genderless marriage definition is 21 basis
points below that level—at 1.85. As of 2010, moreover,
Massachusetts—the first State to take this step— has an even lower
fertility rate of just 1.67—which is down 13 basis points from its level in
2000, shortly before marriage was redefined there.54
53 Cent. Intelligence Agency, Country Comparison: Birth Rate, The World Factbook, https://www.cia.gov/library/publications/the-worldfactbook/rankorder/2054rank.html (last visited January 31, 2014), https://www.cia.gov/library/publications/the-worldfactbook/rankorder/2054rank.html;); and Cent. Intelligence Agency, Country Comparison: Total Fertility Rate, The Word Factbook (last visited January 31, 2014), https://www.cia.gov/library/publications/the-worldfactbook/rankorder/2127rank.html. The average total fertility rate (“TFR”) for all Organization for Economic Co-operation and Development (“OECD”) countries is 1.6. See OECD, Social Policy Division, Directorate of Employment, Labour and Social Affairs, SF2.1: Fertility rates, OECD Family Database (June 26, 2013), http://www.oecd.org/social/family/SF2.1%20Fertility%20trends_updatedJune 2013.pdf (culling TFRs from 2011 data and showing only 6 out of 41 OECD countries with TFRs over 2.1, the population replacement rate).
54 Within the United States, fertility rates vary greatly, e.g.: California (1.947), Connecticut (1.723), Delaware (1.940), D.C. (1.646), Hawaii (2.153), Illinois (1.882), Iowa (2.009), Maine (1.700), Maryland (1.999), Massachusetts (1.665), Minnesota (1.961), New Hampshire (1.666), New Mexico (2.064), New Jersey (1.900), New York (1.814), Rhode Island (1.630), Vermont (1.664), and Washington (1.907). See Ctrs. for Disease Control & Prevention, National Vital Statistics Reports—Births: Final Data for 2010, 42 (Aug. 28, 2012), http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_01.pdf. In 2000, before same-sex marriage was adopted in Massachusetts, that state had a birthrate of 1.8. See Ctrs. for Disease Control & Prevention, National Vital Statistics Reports—Births: Final Data for 2000, 40 (Feb. 12, 2002), http://www.cdc.gov/nchs/data/nvsr/nvsr50/nvsr50_05.pdf .
85

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 101
The same is true overseas. As of 2011, ten countries permitted
same-sex marriage.55 Six of these ten fall well into the bottom quarter
in both birth rates and fertility among 223 countries and territories,
and all ten fall below the average worldwide fertility rate.56 While
these statistics obviously do not prove a causal link between same-sex
marriage and declining birthrates, they do create cause for concern.
How Traditional Marriage Encourages Procreation.
So far, Utah has been more successful than these states and countries
in encouraging procreation. As of 2010, its fertility rate was 2.45—
slightly above the replacement rate.57
55 They included the Netherlands, Spain, Canada, Belgium, South Africa, Norway, Sweden, Portugal, Iceland, and Argentina. See Dan Fastenberg, A Brief History of International Gay Marriage, Time, July 22, 2010, available , at http://www.time.com/time/world/article/0,8599,2005678,00.html. 56 Cent. Intelligence Agency, Country Comparison: Birth Rate, The World Factbook (last visited January 31, 2014), https://www.cia.gov/library/publications/the-worldfactbook/rankorder/2054rank.html; and Cent.; and Cent. Intelligence Agency, Country Comparison: Total Fertility Rate, The Word Factbook (last visited January 31, 2014), https://www.cia.gov/library/publications/the-worldfactbook/rankorder/2127rank.html.. 57 Ctrs. For Disease Control and Prevention, National Vital Statistics Reports—Births: Final Data for 2010, Table 12 (Aug. 28, 2012), http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_01.pdf.
86

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 102
While a number of factors contribute to Utah’s success, one of those is undoubtedly its marriage laws—including their limitation to man-woman couples. By providing special privileges and status to couples that are uniquely capable of producing offspring without biological assistance from third parties, the State sends a clear if subtle message to all of its citizens that natural reproduction is healthy, desirable and highly valued. That message fosters more reproduction, even as it encourages the couples so engaged to raise the resulting children within man-woman marriages.
Additional reinforcement comes from the general perception that Utah’s marriage laws and traditions have been built on the child-centric view of marriage rather than the more adult-centric view. Because of that, Utah’s marriage laws and traditions subtly convey to all citizens that it is good to make the sacrifices necessary to have children—even though doing so may be inconvenient or even burdensome to adult parents. That message too has an upward influence on fertility.
As implemented in Utah, then, the very institution of man-woman marriage stands as a State endorsement not only of the value of raising children in intact marriages, but also of the value of procreation. For
87

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 103
that reason too, the State has a powerful interest in retaining that traditional definition.
Effects of genderless marriage. By contrast, redefining marriage in genderless terms would tend to reduce fertility rates, for at least three reasons.
First, as many commentators have observed, because procreation is an inherently gendered matter, redefining marriage in genderless terms breaks the critical conceptual link between marriage and procreation—and in that way alone would dilute the implicit encouragement the institution of marriage currently provides for procreation by married couples.
Second, by implicitly endorsing the adult-centric model of marriage, a genderless redefinition would send a powerful message that it is entirely appropriate—even expected—for adults to forego or severely limit the number of their children based on concerns for their own convenience. That a new child might “cramp the style” of an adult would come to be seen as sufficient reason not to have the child at all. That too would tend to reduce fertility rates.
Third, to the extent a genderless marriage definition encourages the further abandonment—or privatization—of marriage, it would
88

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 104
almost certainly reduce birthrates. Studies have shown that cohabiting couples tend to produce fewer children on average than married couples do58—perhaps because the resulting instability makes the participants less willing to bring children into the mix. Thus, if overall marriage rates decline further, birthrates would likely decline as well.
At a minimum, these institutional and biological realities strongly suggest that abandoning Utah’s marriage definition would create or increase the risk of such a decline. That is especially true in Utah, which has thus far been more successful than other states at countering other social and economic pressures that have tended to reduce the marriage rate and, with it, the fertility rate. Yet for reasons just explained, the State has good reason to fear that a judge-imposed redefinition—and the changes to the public meaning of marriage such a redefinition would entail—would over time weaken its marriage tradition enough to reduce its fertility rate, perhaps even below the
58 Junfu Zhang and Xue Song, Fertility Differences between Married and Cohabiting Couples: A Switching Regression Analysis, IZA Discussion Paper No. 3245 (December 2007), SSRN: http://ssrn.com/abstract=1136407; Elizabeth Brown and Alfred Dittgen, Fertility of married and unmarried couples (2000), Paper 4.4 presented at United Nations Economic Commission for Europe Conference, Brussels, Belgium, May 2000, http://www.unece.org/fileadmin/DAM/pau/_docs/ffs/FFS_2000_FFConf_Contri Brown-Dittgen.pdf.
89

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 105
replacement rate. Utah has a compelling interest in minimizing that risk, and therefore in preserving its gendered definition of marriage.
4. Preserving Utah’s marriage definition furthers the State’s vital interests in accommodating religious freedom and reducing the potential for civic strife.
Yet another vital public welfare interest arises from the fact that husband-wife marriage is deeply interwoven into the fabric of Utah life, including its diverse faith communities. Accordingly, preserving the traditional definition of marriage is essential to preserving social harmony in the State, while redefining marriage would be a recipe for social and religious strife, centered on the instrumentalities of State and local government. Cf. Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741 (1983) (referring to “the States’ compelling interest in the maintenance of domestic peace”).
Religious and cultural support for marriage. The social consensus surrounding marriage reflects, in part, powerful religious symbolism and traditions through which Utah’s diverse faith communities foster and nourish marriage as the ideal institution for family life. That nearly ubiquitous religious support is an essential pillar in the social infrastructure that sustains Utah’s marriage rates— as well as the consensus that marriage is the best venue for bearing and
90

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 106
rearing children. Of course, the State endorses no religious beliefs
about marriage. Yet its interests are plainly advanced by the religious
and other cultural institutions that support its pro-marriage culture.
Broad religious support for marriage, however, exists only because
the current legal definition corresponds to the understanding of the vast
majority of faith communities. That includes approximately 20 of the
25 largest faith communities in Utah, plus others accounting (in the
aggregate) for 75% or more of the State’s population—and some 98% of
those who consider themselves religious believers.59
59 Of the 25 largest faith communities in Utah, only five—the Episcopal Church, the Presbyterian Church (USA), the Evangelical Lutheran Church, Reform Judaism and the United Church of Christ—officially accept same-sex unions as theologically permissible for their members. Compare Ass’n of Religion Data Archives, State Membership Report, http://www.thearda.com/rcms2010/r/s/49/rcms2010_49_state_rate_2010.asp (last visited Jan. 31, 2014) (reporting membership statistics for Utah faith groups) with Pew Research Religion & Pub. Life Project, Religious Groups’ Official Positions on Same-Sex Marriage (Dec. 7, 2012), http://www.pewforum.org/2012/12/07/religious-groups-official-positions-onsame-sex-marriage/ (describing official positions of various faith groups on same-sex marriage). These five groups, moreover, are among the smaller faith groups in Utah—accounting for less than one percent of the population. See Ass’n of Religion Data Archives, supra. The other faith groups in the top 25—including the Church of Jesus Christ of Latter-day Saints (approximately 55 percent of the population), the Roman Catholic Church (approximately 5 percent), and virtually all evangelical Christian faiths (about 2.3 percent in the aggregate)—object to same-sex marriage on theological grounds. Approximately 20 percent of Utah’s population claims no religious affiliation.
91

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 107
In that regard, the religious context surrounding same-sex marriage is vastly different from the religious context that surrounded interracial marriage—a difference that once again illustrates the unwarranted logical leap that the district court took in invoking Loving. Historically, objections to interracial marriage were always principally about racism, not about religion or the marriage institution.
By contrast, religious support for defining marriage as between one man and one woman is both widespread and deeply rooted in the religious texts of all three major Abrahamic faiths—Christianity, Judaism, and Islam—plus one of the other two largest world religions— Buddhism.60 The Abrahamic faiths in particular have rich religious narratives extolling the husband-wife, child-centric meaning of marriage. Millions of Utahns who accept these traditions understand marriage and sexuality as gifts from God, designed not principally for the gratification of adults (i.e., adult-centric), but to provide an optimal
60 See Pew Research Religion & Pub. Life Project, Religious Groups’ Official Positions on Same-Sex Marriage, (Dec. 7, 2012), http://www.pewforum.org/2012/12/07/religious-groups-official-positions-onsame-sex-marriage/..
92

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 108
setting for bearing and raising children (i.e., child-centric).61 These beliefs about marriage are not going away. They are held
by major worldwide religious bodies, with billions of believers, that are unlikely to change their doctrines based on the views of the U.S. public, much less the U.S. courts. These beliefs are tied not only to theology but also to religious and family practices, deeply and sincerely held personal beliefs, and entire ways of life. They are no less integral to the dignity and identities of millions of Utah citizens than Plaintiffs’ sexual orientation is to them.
Given those realities, judicial imposition of a genderless definition of marriage would fracture the centuries-old consensus about the meaning of marriage, spawning deep tensions between civil and religious understandings of that institution, and all to the detriment of both marriage and the State’s interests in social peace.
Avoiding religion-centered conflicts. Redefining marriage in genderless terms would create the potential for religion-related strife— and infringements of religious freedom—in a wide variety of government-related situations that have already arisen around the
61 See e.g., Sex, Marriage and Family in World Religions xxii-xxvii (Don S. Browning, M. Christian Green & John Witte, Jr. eds., 2009).eds., 2009).
93

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 109
country. Scholars across the ideological spectrum agree on the threat.62
Indeed, as a group of pro-same-sex-marriage law professors recently put
it to the Illinois legislature, the kind of redefinition imposed by the
district court here “could create a whole new set of problems for the
religious liberty of those religious believers who cannot conscientiously
participate in implementing the new regime.”63 To take just a few
examples:
 Governments would likely be pressured—and perhaps agree—to force religious social service agencies to cease providing adoption and foster care services unless they agree to provide those services in a manner contrary to their doctrines and beliefs.64
62 See generally Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock et al. eds., 2008) (diverse scholars discussing issue); see id. at 124-25 (Professor Chai Feldblum, LGBT scholar and current commissioner of the federal EEOC, noting that there is often a “conflict . . . between laws intended to protect the liberty” of LGBT people “and the religious beliefs of some individuals whose conduct is regulated by such laws,” and that sometimes “those who advocate for LGBT equality have downplayed the impact of such laws”).
63 Letter from Douglas Laycock, Michael Perry, and Mark D. Stern to Representative Michael Madigan (Mar. 11, 2013) .
64See, e.g., Michelle Boorstein, Citing Same-Sex Marriage Bill, Washington Archdiocese Ends Foster-Care Program, Washington Post (Feb. 17, 2010), http://www.washingtonpost.com/wpdyn/content/article/2010/02/16/AR2010021604899.html17, 2010), ; Emily Esfahani Smith, Washington, Gay Marriage and the Catholic Church, Wall Street Journal (Jan. 9, 2010), http://online.wsj.com/article/SB10001424052748703478704574612451567822 852.html; Manya A. Brachearm, Rockford Catholic Charities Ending Foster Care, Chicago Tribune (May 26, 2011),
94

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 110
 Governments would likely be pressured—and perhaps agree—to revoke the tax-exempt status of churches or other non-profit religious organizations that refuse on religious grounds to recognize same-sex marriages or to provide benefits to same-sex couples on the same terms as husband-wife couples.65
 Governments would likely be pressured—and perhaps agree—to investigate, prosecute and punish people in wedding-related businesses for refusing on religious conscience grounds to assist with same-sex weddings.66
 Governments would likely be pressured—and perhaps agree—to punish school teachers for refusing on religious conscience
http://www.chicagotribune.com/news/local/breaking/chibrknews-rockfordcatholic-charities-ending-foster-care-adoptions-
20110526,0,4532788.story?track=rss; Daniel Avila, Same-Sex Adoption in Massachusetts, the Catholic Church, and the Good of the Children: The
Story Behind the Controversy and the Case for Conscientious Refusals 27 Children’s Legal Rights J. 1, 11 (2007); John Garvey, State Putting Church Out of Adoption Business, Boston Globe, (March 14, 2006),1, 11 (2007); John Garvey, State Putting Church Out of Adoption Business, Boston Globe, March 14, 2006, at A15.
65 Cf. Bob Jones University v. United States, 461 U.S. 574 (1983);); Religious Establishment Bigots Sound Alarm Against Loving Same-Sex Marriages, The Daily Kos (Jan. 12, 2012), http://www.dailykos.com/story/2012/01/12/1054208/-Religious-establishmentbigots-sound-alarm-against-loving-same-sex-marriages (“These religious bigots want to receive taxpayer support for their efforts, but want to keep discriminatory practices in place. . . . . Their right to be bigots isn’t in question. What’s in question is whether American taxpayers should subsidize that bigotry. And the answer, quite obviously, should be a resounding NO.”).
66 See Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)) (upholding fine despite refusing on religious grounds to photograph same-sex commitment ceremony).
95

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 111
grounds to endorse same-sex marriage or for expressing contrary views.67  Government licensing agencies would likely be pressured—and perhaps agree—to investigate and punish counselors for refusing on religious conscience grounds to counsel same-sex married couples on the same terms as heterosexual couples.68  Religion-based conflicts between public schools and parents would likely increase as children are taught about sexuality and marriage in ways that contravene parents’ and students’ deeply held religious beliefs.69  Governments would likely be pressured—and might agree—to punish religious colleges and similar institutions for adhering to
67 See, e.g., Todd Starnes, Christian Teacher Under Investigation for Opposing Homosexuality, Fox News Radio (Oct. 19, 2011), http://radio.foxnews.com/toddstarnes/ top-stories/christian-teacher-under-
investigation-for-opposing-homosexuality.html (teacher investigated for posting message on private Facebook page opposing homosexuality based on her Christian faith; statewide gay rights group demanded her removal and governor criticized her publicly).
68 Ward v. Polite, 667 F.3d 727 (6th Cir. 2012).
69 Compare Teacher, School Sued Over Gay Fairy Tale, NPR (April 27, 2006), http://www.npr.org/templates/story/story.php?storyId=5366521 (legalization of SSM in Massachusetts basis for reading book depicting marriage of two princes), with Todd Starnes, Atty Says School Threatened, Punished Boy Who Opposed Gay Adoption, Fox News Radio, http://radio.foxnews.com/toddstarnes/top-stories/atty-says-school-threatenedpunished-boy-who-opposed-gay-adoption.html (last visited Feb. (last visited Feb. 1, 2014) (student berated by school district superintendent after writing op-ed piece in school newspaper opposing gay adoptions; boy called to superintendent’s office, subjected to hours of meetings, and accused of violating the school’s anti-bullying policy; superintendent threatened suspension, demanded that student admit to “regret” over column, and called student “ignorant”).
96

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 112
their views on marriage in such things as married student housing, hiring, and curriculum.70 Preventing these kinds of social tensions and conflicts—and the infringements of religious freedom they could create—is an important and compelling State interest, legitimately grounded in the State’s concern for public welfare. See Bill Johnson’s Restaurants, supra, at 741. As Justice Breyer remarked in Zelman v. Simmons-Harris, 536 U.S. 639, 717 (2002) (Breyer, J., dissenting), one of the concerns underlying the federal Establishment Clause is “protecting the Nation’s social fabric from religious conflict.” Accord Van Orden v. Perry, 545 U.S. 677, 698-99 (2005) (Breyer, J., concurring). If that is a legitimate federal interest, based as it is on the federal First Amendment, then surely the State has a compelling interest in doing what it can to protect the State’s own “social fabric from religious conflict.” That is not to say that the State can invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution. Yet for reasons already explained, the right to same-sex marriage claimed here is
70 See, e.g., Levin v. Yeshiva Univ., 754 N.E.2d 1099 (N.Y. 2001); see generally D. Smith, Accreditation Committee Decides to Keep Religious Exemption, 33 Monitor on Psychology 16 (Jan. 2002).
97

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 113
anything but well-established. Instead, as the district court itself recognized, the existence of a constitutional right to same-sex marriage hinges on whether the State has sufficient reason for defining marriage in gendered terms. The State’s interests in protecting religious freedom and minimizing religion-related civic conflicts are thus highly relevant to the constitutional inquiry.
The value of democratic decision-making. Avoiding such conflicts, moreover, is another reason the State has a profound interest in having disagreements over the nature and purpose of marriage resolved through democratic institutions. The risk of deep social division is at its apex when courts preempt democratic discourse and force major social changes on an unwilling populace.
By contrast, democratic channels allow for dialogue, persuasion, incremental steps, creative compromises, second and third chances and, sometimes, reaffirmations of established ways. While it cannot guarantee everyone’s preferred outcome, this “active liberty,” as Justice Breyer has called it—the right to participate as equal citizens in democratic decision-making about how best to live out our common
98

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 114
destiny71—ensures a legitimacy in lawmaking that judicial mandates cannot match. The State has the highest interest in preserving the right of the People and their democratic institutions to resolve controversial issues in a way that secures the greatest possible consensus and harmony.
Same-sex marriage is a classic example. To say that people hold divergent views about marriage is an understatement. As previously explained, some believe marriage is focused principally on the emotional fulfillment of adults, and that moms and dads are interchangeable. Others believe marriage is principally about children, and that they benefit from being raised by both a mom and a dad. As this Court is well aware, democratic processes are ill-served when the judiciary steps into such a contentious debate and, as the district court did, labels one side as “irrational.” To do so improperly dismisses as intolerant the personal and religious beliefs of at least half the country. That is not the place or function of the judiciary. Such debates are
71“[T]he Constitution [is] centrally focused upon active liberty, upon the right of individuals to participate in democratic self-government.” Stephen G. Breyer, Active Liberty: Interpreting Our Democratic Constitution 21 (2005). Justice Breyer urges “that courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts.” Id. at 5. Judicial restraint – i.e, “judicial modesty in constitutional decision-making” – is essential. Id. at 37; see also id. at 17.
99

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 115
properly reserved for the political branches or for the People speaking at the ballot box.
Utah’s marriage policy, moreover, does not dictate the private choices of its citizens. The Supreme Court has long acknowledged a “basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Maher v. Roe, 432 U.S. 464, 475 (1977) (emphasis added). By defining marriage as being between one man and one woman, Utah does not interfere with adults’ ability to commit to an exclusive, loving relationship with others of the same sex, or to bring children into that relationship. Instead, the laws at issue here simply encourage a familial structure that has served society for thousands of years as the ideal setting for raising children. Nothing in the federal Constitution prevents Utah’s citizens from making that choice.
* * * * * Nearly 130 years ago, in Murphy v. Ramsey, 114 U.S. 15, the Supreme Court held that “no 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
100

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 116
life of one man and one woman …” Id. at 45 (emphasis added). That was true then, and it remains true today: For all the reasons discussed above, the State has important and compelling interests in retaining its gendered definition of marriage. A fortiori, it has the required rational basis for doing so.
CONCLUSION Accordingly, this Court should reverse the district court’s grant of summary judgment to the Plaintiffs, and vacate the permanent injunction.
STATEMENT REGARDING ORAL ARGUMENT Given the importance of the legal and policy issues at stake, oral argument is respectfully requested.
101

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 117

Date: February 3, 2014.

Respectfully submitted,
/s/ Gene C. Schaerr GENE C. SCHAERR Special Asst. UT Attorney General BRIAN L. TARBET Chief Deputy UT Attorney General PARKER DOUGLAS Chief of Staff & Counsel General STANFORD E. PURSER PHILIP S. LOTT Assistant UT Attorneys General 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100 (phone) gschaerr@gmail.com
JOHN J. BURSCH Warner Norcross & Judd LLP 111 Lyon Street, NW. Ste. 900 Grand Rapids, Michigan 49503 616-752-2474 jbursch@wnj.com
MONTE N. STEWART 12550 W. Explorer Dr., Ste. 100 Boise, Idaho 83713 208-345-3333 stewart@stm-law.com

102

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 118
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitations of Fed.
R. App. P. 32(a)(7)(B) because: [x] this brief contains 21,745 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [x] this brief has been prepared in a proportionally spaced typeface using Word in 14 point Times New Roman font.
/s/ Gene Schaerr
ECF CERTIFICATIONS Pursuant to Section II(I) of the Court’s CM/ECF User’s Manual, the undersigned certifies that: 1. all required privacy redactions have been made; 2. hard copies of the foregoing brief required to be submitted to
the clerk’s office are exact copies of the brief as filed via ECF; and 3. the brief filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v. 2.1.111.6.0, and according to the program is free of viruses.
/s/ Gene Schaerr
103

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 119

CERTIFICATE OF SERVICE

I hereby certify that on the 3rd of February, 2014, a true, correct

and complete copy of the foregoing Brief of Appellants and Addendum

was filed with the Court and served on the following via the Court’s

ECF system:

Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101

tomsic@mgplaw.com magleby@mgplaw.com parrish@mgplaw.com

Kathryn D. Kendell Shannon P. Minter David C. Codell National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102

kkendall@nclrights.org sminter@nclrights.org dcodell@nclrights.org

Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, UT 84190

rchamness@slco.org dgoddard@slco.org

/s/ Gene Schaerr

104

Appellate Case: 13-4178 Document: 01019196784 Date Filed: 02/03/2014 Page: 120
ADDENDA 1. Memordum Decision and Order dated December 20, 2013. 2. State Definitions of Marriage: Statutes, Constitutional
Provisions and Judicial Decisions
105

 
 Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 1 of 14
CLOSED,LODGE_DOC,SUP_CT
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:13−cv−00217−RJS

Kitchen et al v. Herbert et al Assigned to: Judge Robert J. Shelby Case in other court: Supreme Court of the United States,
14−00124 Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 03/25/2013 Date Terminated: 12/20/2013 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Derek Kitchen individually

represented by Peggy A. Tomsic MAGLEBY &GREENWOOD PC 170 S MAIN ST STE 1100 SALT LAKE CITY, UT 84101 (801) 359−9000 Email: tomsic@mgpclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. Magleby MAGLEBY &GREENWOOD PC 170 S MAIN ST STE 1100 SALT LAKE CITY, UT 84101 (801) 359−9000 Email: magleby@mgpclaw.com ATTORNEY TO BE NOTICED

Jennifer F. Parrish MAGLEBY &GREENWOOD PC 170 S MAIN ST STE 1100 SALT LAKE CITY, UT 84101 (801) 359−9000 Email: parrish@mgpclaw.com ATTORNEY TO BE NOTICED

Plaintiff
Moudi Sbeity individually

represented by Peggy A. Tomsic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. Magleby (See above for address) ATTORNEY TO BE NOTICED

Jennifer F. Parrish (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Karen Archer individually

represented by Peggy A. Tomsic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. Magleby (See above for address) ATTORNEY TO BE NOTICED

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 2 of 14

Jennifer F. Parrish (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kate Call individually

represented by Peggy A. Tomsic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. Magleby (See above for address) ATTORNEY TO BE NOTICED

Jennifer F. Parrish (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Laurie Wood individually

represented by Peggy A. Tomsic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. Magleby (See above for address) ATTORNEY TO BE NOTICED

Jennifer F. Parrish (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kody Partridge individually

represented by Peggy A. Tomsic (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E. Magleby (See above for address) ATTORNEY TO BE NOTICED

Jennifer F. Parrish (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Gary R. Herbert in his official capacity as Governor of Utah

represented by Philip S. Lott UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856) LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: phillott@utah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanford Edward Purser

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 3 of 14

UTAH ATTORNEY GENERAL'S OFFICE 160 E 300 S SIXTH FL SALT LAKE CITY, UT 84114 (801)366−0100 Email: spurser@utah.gov ATTORNEY TO BE NOTICED

Defendant
John Swallow in his official capacity as Attorney Genderal of Utah

represented by Philip S. Lott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanford Edward Purser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sherrie Swensen in her official capacity as Clerk of Salt Lake County

represented by Darcy M. Goddard Office of the District Attorney 2001 South State Street S3600 SALT LAKE CITY, UT 84190 (385)468−7761 Email: dgoddard@slco.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ralph E. Chamness SALT LAKE COUNTY DISTRICT ATTORNEY'S OFFICE (2001−3500) 2001 S STATE STE S3500 SALT LAKE CITY, UT 84190−1210 (385)468−7755 Email: rchamness@slco.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union Foundation

represented by John M. Mejia ACLU OF UTAH 355 N 300 W STE 1 SALT LAKE CITY, UT 84103 (801)521−9862 x.108 Email: jmejia@acluutah.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block AMERICAN CIVIL LIBERTIES UNION FOUNDATION (NY) 125 BROAD ST 18TH FL NEW YORK, NY 10004 (212)549−2593 Email: jblock@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus ACLU of Utah Foundation, Inc.

represented by John M. Mejia (See above for address)

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 4 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Lynn D. Wardle

represented by Byron J. Babione ALLIANCE DEFENDING FREEDOM 15100 N 90TH ST SCOTTSDALE, AZ 85260 (480)444−0020 Email: bbabione@alliancedefendingfreedom.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Frank D. Mylar MYLAR LAW PC 2494 BENGAL BLVD SALT LAKE CITY, UT 84121 (801)858−0700 Email: mylar−law@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus William C. Duncan

represented by Byron J. Babione (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Frank D. Mylar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Bryce J. Christensen

represented by Byron J. Babione (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Frank D. Mylar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Joseph P. Price

represented by Byron J. Babione (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Frank D. Mylar (See above for address)

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 5 of 14
LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Movant
National Center for Lesbian Rights TERMINATED: 12/05/2013

represented by Kathryn D. Kendell NCLR 870 MARKET ST STE 370 SAN FRANCISCO, CA 94102 (415)392−6257 Email: kkendell@nclrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/25/2013
03/25/2013 03/27/2013 03/27/2013 03/27/2013 03/28/2013 03/29/2013

# Docket Text
1 Case has been indexed and assigned to Judge Robert J. Shelby. Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood is directed to E−File the Complaint and cover sheet (found under Complaints and Other Initiating Documents) and pay the filing fee of $ 350.00 by the end of the business day. NOTE: The court will not have jurisdiction until the opening document is electronically filed and the filing fee paid in the CM/ECF system. Civil Summons may be issued electronically. Prepare the summons using the courts PDF version and email it to utdecf_clerk@utd.uscourts.gov for issuance. (jds) (Entered: 03/25/2013)
2 COMPLAINT against All Defendants (Filing fee $ 350, receipt number 1088−1799700), filed by Kody Partridge, Karen Archer, Laurie Wood, Derek Kitchen, Kate Call, Moudi Sbeity. Assigned to Judge Robert J. Shelby (Magleby, James) (Entered: 03/25/2013)
3 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Gary R. Herbert. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (rls) (Entered: 03/27/2013)
4 **RESTRICTED DOCUMENT**Summons Issued Electronically as to John Swallow. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (rls) (Entered: 03/27/2013)
5 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Sherrie Swensen. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (rls) (Entered: 03/27/2013)
6 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Gary R. Herbert. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (rls) (Entered: 03/28/2013)
7 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Kody Partridge, Karen Archer, Laurie Wood, Derek Kitchen, Kate Call, Moudi Sbeity as to Gary R. Herbert served on 3/28/2013, answer due 4/18/2013. (Magleby, James)

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 6 of 14

03/29/2013 03/29/2013 04/23/2013 05/07/2013 05/28/2013 05/29/2013 05/29/2013 05/31/2013 08/12/2013 08/12/2013 08/14/2013 08/14/2013 08/15/2013
08/21/2013

(Entered: 03/29/2013)
8 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Kody Partridge, Karen Archer, Laurie Wood, Derek Kitchen, Kate Call, Moudi Sbeity as to John Swallow served on 3/27/2013, answer due 4/17/2013. (Magleby, James) (Entered: 03/29/2013)
9 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Kody Partridge, Karen Archer, Laurie Wood, Derek Kitchen, Kate Call, Moudi Sbeity as to Sherrie Swensen served on 3/27/2013, answer due 4/17/2013. (Magleby, James) (Entered: 03/29/2013)
10 NOTICE of Appearance by Philip S. Lott on behalf of Gary R. Herbert, John Swallow (Lott, Philip) (Entered: 04/23/2013)
11 NOTICE of Appearance by Stanford Edward Purser on behalf of Gary R. Herbert, John Swallow (Purser, Stanford) (Entered: 05/07/2013)
12 NOTICE of Appearance by Darcy M. Goddard on behalf of Sherrie Swensen (Goddard, Darcy) (Entered: 05/28/2013)
13 NOTICE of Appearance by Ralph E. Chamness on behalf of Sherrie Swensen (Chamness, Ralph) (Entered: 05/29/2013)
14 Joint MOTION to Stay and Memorandum in Support to Stay Action filed by Defendants Gary R. Herbert, John Swallow. (Attachments: # 1 Text of Proposed Order)(Lott, Philip) (Entered: 05/29/2013)
15 ORDER granting 14 Motion to Stay. Signed by Judge Robert J. Shelby on 05/31/2013. (tls) (Entered: 05/31/2013)
16 Utah State Defendants' ANSWER to Complaint filed by Gary R. Herbert, John Swallow.(Lott, Philip) (Entered: 08/12/2013)
17 Defendant Sherrie Swensen's ANSWER to Complaint filed by Sherrie Swensen.(Goddard, Darcy) (Entered: 08/12/2013)
18 NOTICE OF ADR, e−mailed or mailed to Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood, Defendants Gary R. Herbert, John Swallow, Sherrie Swensen. (tls) (Entered: 08/14/2013)
19 NOTICE FROM THE COURT re: Initial Scheduling The court's IPT Clerk will now set the case for the Initial Pretrial Scheduling Conference (tls) (Entered: 08/14/2013)
20 NOTICE OF INITIAL PRETRIAL CONFERENCE: (Notice generated by Jennifer Stout, IPT Clerk) The Attorneys Planning Meeting Report and Proposed Scheduling Order forms, available on the court web site at http://www.utd.uscourts.gov/documents/formpage.html, should be prepared 21 days before the Initial Pretrial Conference hearing date.
NOTICE TO COUNSEL, The Court may enter a scheduling order and vacate the hearing if counsel (a) file a stipulated Attorneys Planning Meeting Report; and (b) e−mail a Proposed Scheduling Order to ipt@utd.uscourts.gov 21 days before the scheduled hearing. See instructions at http://www.utd.uscourts.gov/documents/ipt.html
If counsel or the parties would like to participate by phone they must contact chambers at least two days in advance at utdecf_furse@utd.uscourts.gov to make arrangements.
Initial Pretrial Conference set for 10/9/2013 10:30 AM in Room 477 before Magistrate Judge Evelyn J. Furse. (jds) (Entered: 08/15/2013)
21 NOTICE OF HEARING: (Notice generated by Mary Jane McNamee) Status Conference set for 8/27/2013 at 1:30 PM in Room 220 before Judge Robert J.

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 7 of 14

08/22/2013 08/23/2013 08/26/2013 08/27/2013
09/04/2013 09/05/2013
10/04/2013 10/08/2013

Shelby. (mjm) (Entered: 08/21/2013)
Deadlines/Hearings terminated. The Initial Pretrial Conference previously set for 10/9/2013 is vacated. (mjm) (Entered: 08/22/2013)
22 NOTICE OF FILING filed by Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood. (Tomsic, Peggy) (Entered: 08/23/2013)
23 RESPONSE re 22 Notice of Filing,Scheduling Issues filed by Gary R. Herbert, John Swallow. (Lott, Philip) (Entered: 08/26/2013)
27 Minute Entry for proceedings held before Judge Robert J. Shelby: Status Conference held on 8/27/2013. The court hears from cnsl and sets the following dates/deadlines: 1. This case will first proceed with motions for summary judgment. 2. The court has provided Plaintiffs with the option of two briefing schedules, depending on whether Plaintiffs elect to file a motion for summary judgment. 3. Plaintiffs have elected to file a motion for summary judgment. 4. Therefore, motions for summary judgment, to be filed by any party, are due on or before October 11, 2013. 5. Any responses to motions for summary judgment, to be filed by any party, are due on or before November 22, 2013. 6. A hearing on all motions for summary judgment is set for December 4, 2013, at 10:00 a.m., in Room 220, before the Honorable Robert J. Shelby. 7. To the extent that the courts rulings on the motions for summary judgment are not dispositive, a status and scheduling conference is also set for January 7, 2014, at 10:00 a.m., in Room 220, before the Honorable Robert J. Shelby. ( Motion Hearing set for 12/4/2013 at 10:00 AM in Room 220 before Judge Robert J. Shelby.). Mr. Magleby will prepare and submit an order. Attorney for Plaintiff: James Magleby, Jennifer Parrish, Peggy Tomsic; Attorney for Defendant: Philip Lott, Stanford Purser − rep State dfts; Darcy Goddard, Ralph Chamness − rep Sherrie Swensen. Court Reporter: Ray Fenlon. (mjm) (Entered: 09/10/2013)
24 ORDER. Summary Judgment Motions due by 10/11/2013. Responses to Motions for Summary Judgment due by 11/22/2013. Motion for Summary Judgment Hearing set for 12/4/2013 10:00 AM in Room 220. Status Report and Scheduling Conference set for 1/7/2014 10:00 AM in Room 220 before Judge Robert J. Shelby. Signed by Judge Robert J. Shelby on 09/04/2013. (tls) (Entered: 09/04/2013)
25 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of STATUS CONFERENCE held on AUGUST 27, 2013 before Judge ROBERT J. SHELBY. Court Reporter/Transcriber RAYMOND P. FENLON, Telephone number (801) 809−4634.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/26/2013. Redacted Transcript Deadline set for 10/7/2013. Release of Transcript Restriction set for 12/4/2013. (asp) Modified on 12/4/2013 by removing restricted text(las). (Entered: 09/05/2013)
28 Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages Plaintiffs' Motion for Summary Judgment filed by Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood. (Attachments: # 1 Text of Proposed Order)(Parrish, Jennifer) (Entered: 10/04/2013)
29 ORDER granting 28 Motion for Leave to File Excess Pages. Signed by Judge Robert J. Shelby on 10/07/2013. (asp) (Entered: 10/08/2013)

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 8 of 14

10/08/2013 10/08/2013 10/11/2013
10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013

30 Defendant's MOTION for Leave to File Overlength Motion for Summary Judgment (Unopposed) filed by Defendants Gary R. Herbert, John Swallow. (Attachments: # 1 Text of Proposed Order)(Lott, Philip) (Entered: 10/08/2013)
31 ORDER granting 30 State Defendants' Motion for Leave to File Overlength Motion for Summary Judgment. Signed by Judge Robert J. Shelby on 10/08/2013. (tls) (Entered: 10/08/2013)
32 Plaintiff's MOTION for Summary Judgment and Memorandum in Support filed by Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood. (Attachments: # 1 Appendix, # 2 Exhibit 1 Declaration of J.F. Parrish, # 3 Exhibit 2 Declaration of D. Kitchen, # 4 Exhibit 3 Declaration of M. Sbeity, # 5 Exhibit 4 Declaration of K. Archer, # 6 Exhibit 5 Declaration of K. Call, # 7 Exhibit 6 Declaration of L. Wood, # 8 Exhibit 7 Declaration of K. Partridge)(Tomsic, Peggy) (Entered: 10/11/2013)
33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow. (Lott, Philip) (Entered: 10/11/2013)
34 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 1−17. (Lott, Philip) (Entered: 10/11/2013)
35 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 18−21a. (Lott, Philip) (Entered: 10/11/2013)
36 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 21b−27a. (Lott, Philip) (Entered: 10/11/2013)
37 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 27b−28a. (Lott, Philip) (Entered: 10/11/2013)
38 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 28b−33a. (Lott, Philip) (Entered: 10/11/2013)
39 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 33b−35a. (Lott, Philip) (Entered: 10/11/2013)
40 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 35b−38a. (Lott, Philip) (Entered: 10/11/2013)
41 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 38a−39. (Lott, Philip) (Entered: 10/11/2013)
42 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 40−45a. (Lott, Philip) (Entered: 10/11/2013)
43 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 45b−48. (Lott, Philip) (Entered: 10/11/2013)
44 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 49−52a. (Lott, Philip) (Entered: 10/11/2013)
45 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 52b−59a. (Lott, Philip) (Entered: 10/11/2013)
46 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 9 of 14

10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/15/2013

59b−61a. (Lott, Philip) (Entered: 10/11/2013)
47 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 61b−65a. (Lott, Philip) (Entered: 10/11/2013)
48 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 65b−67a. (Lott, Philip) (Entered: 10/11/2013)
49 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 67b. (Lott, Philip) (Entered: 10/11/2013)
50 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 68a. (Lott, Philip) (Entered: 10/11/2013)
51 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 68b−70. (Lott, Philip) (Entered: 10/11/2013)
52 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 71a. (Lott, Philip) (Entered: 10/11/2013)
53 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 71b−72. (Lott, Philip) (Entered: 10/11/2013)
54 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 73a. (Lott, Philip) (Entered: 10/11/2013)
55 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tabs 73b−74a. (Lott, Philip) (Entered: 10/11/2013)
56 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 74b. (Lott, Philip) (Entered: 10/11/2013)
57 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 74c. (Lott, Philip) (Entered: 10/11/2013)
58 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 74d. (Lott, Philip) (Entered: 10/11/2013)
59 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 74e. (Lott, Philip) (Entered: 10/11/2013)
60 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 74f. (Lott, Philip) (Entered: 10/11/2013)
61 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 74g. (Lott, Philip) (Entered: 10/11/2013)
62 APPENDIX to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Tab 74h. (Lott, Philip) (Entered: 10/11/2013)
63 ERRATA to 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow Appendix Tab 75. (Lott, Philip) (Entered: 10/15/2013)

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 10 of 14

10/17/2013 10/17/2013 10/17/2013
10/18/2013 10/18/2013 10/21/2013 10/21/2013 10/21/2013 10/21/2013
10/21/2013
10/22/2013 10/22/2013 10/22/2013

64 MOTION for Admission Pro Hac Vice of Joshua Block , Registration fee $ 15, receipt number 1088−1928890, filed by Movants ACLU of Utah Foundation, Inc., American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit A, Application, # 2 Exhibit B, ECF Registration, # 3 Text of Proposed Order)(Mejia, John) (Entered: 10/17/2013)
65 MOTION to File Amicus Brief by ACLU and ACLU of Utah filed by Movants ACLU of Utah Foundation, Inc., American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit A, Memorandum of Law)(Mejia, John) (Entered: 10/17/2013)
66 ORDER granting 64 Motion for Admission Pro Hac Vice of Joshua A. Block for ACLU of Utah Foundation, Inc. Joshua A. Block for American Civil Liberties Union Foundation. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Robert J. Shelby on 10/17/2013. (tls) (Entered: 10/17/2013)
67 NOTICE OF HEARING ON MOTION re: 32 Plaintiff's MOTION for Summary Judgment and Memorandum in Support , 33 Defendant's MOTION for Summary Judgment and Memorandum in Support : (Notice generated by Mary Jane McNamee) Motion Hearing set for 12/4/2013 at 10:00 AM in Room 220 before Judge Robert J. Shelby. (mjm) (Entered: 10/18/2013)
68 ORDER granting 65 Motion to File Amicus Brief. Signed by Judge Robert J. Shelby on 10/18/2013. (tls) (Entered: 10/18/2013)
69 NOTICE of Appearance by Frank D. Mylar on behalf of Bryce J. Christensen, William C. Duncan, Joseph P. Price, Lynn D. Wardle (Mylar, Frank) (Entered: 10/21/2013)
70 Plaintiff's MOTION Regarding Amici Curiae filed by Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood. (Tomsic, Peggy) (Entered: 10/21/2013)
71 MOTION for Admission Pro Hac Vice of Byron J. Babione , Registration fee $ 15, receipt number 1088−1931080, filed by Movants Bryce J. Christensen, William C. Duncan, Joseph P. Price, Lynn D. Wardle. (Attachments: # 1 Exhibit Application for Admission Pro Hac Vice, # 2 Text of Proposed Order)(Mylar, Frank) (Entered: 10/21/2013)
72 ERROR: NOT A MOTION − MOTION for Leave to File Brief of Amici Curiae Professors Lynn D. Wardle, William C. Duncan, Bryce J. Christensen and Joseph P. Price in Support of Defendants filed by Movants Bryce J. Christensen, William C. Duncan, Joseph P. Price, Lynn D. Wardle. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit [Proposed] Brief of Amici Curiae Professors)(Mylar, Frank) Modified on 10/22/2013: added error text (alt) (Entered: 10/21/2013)
73 MOTION for Leave to File BRIEF OF AMICI CURIAE PROFESSORS IN SUPPORT OF STATE DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Movants Bryce J. Christensen, William C. Duncan, Joseph P. Price, Lynn D. Wardle. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit [Proposed] Brief of Amici Curiae Professors)(Mylar, Frank) Modified on 10/22/2013: corrected carry−forward text (alt) (Entered: 10/21/2013)
74 ORDER granting 71 Motion for Admission Pro Hac Vice of Byron J. Babione for Bryce J. Christensen, William C. Duncan, Joseph P. Price, Lynn D. Wardle. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov Signed by Judge Robert J. Shelby on 10/21/13 (alt) (Entered: 10/22/2013)
75 NOTICE OF DEFICIENCY re 72 MOTION for Leave to File Brief of Amici Curiae Professors Lynn D. Wardle, William C. Duncan, Bryce J. Christensen and Joseph P. Price in Support of Defendants. The attached document is not a motion. The entry has been terminated. (alt) (Entered: 10/22/2013)
76 Amicus in Support of Plaintiffs' Motion for Summary Judgment BRIEF re 32 Plaintiff's MOTION for Summary Judgment and Memorandum in Support filed by

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 11 of 14

10/22/2013 10/22/2013 10/22/2013 11/19/2013 11/20/2013 11/21/2013 11/21/2013 11/22/2013 11/22/2013
12/02/2013 12/02/2013

Amicus Parties ACLU of Utah Foundation, Inc., American Civil Liberties Union Foundation. (Mejia, John) (Entered: 10/22/2013)
77 ORDER granting 73 Motion for Leave to File Amici Curiae Brief. Signed by Judge Robert J. Shelby on 10/21/13 (alt) (Entered: 10/22/2013)
78 ORDER denying 70 Motion to Disallow Third Parties to File Amicus Briefs. Signed by Judge Robert J. Shelby on 10/21/13 (alt) (Entered: 10/22/2013)
79 Brief of Amici Curiae Professors Lynn D. Wardle, William C. Duncan, Bryce Christensen and Joseph P. Price in Support of Defendants BRIEF re 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Amicus Parties Bryce J. Christensen, William C. Duncan, Joseph P. Price, Lynn D. Wardle. (Mylar, Frank) (Entered: 10/22/2013)
80 Plaintiff's MOTION for Leave to File Excess Pages and Memorandum in Support filed by Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood. (Attachments: # 1 Text of Proposed Order)(Parrish, Jennifer) (Entered: 11/19/2013)
81 Defendant's MOTION for Leave to File Excess Pages Def. Unopposed Motion for Leave to File overlength Response to Pl. Motion for S.J. filed by Defendants Gary R. Herbert, John Swallow. (Attachments: # 1 Text of Proposed Order)(Lott, Philip) (Entered: 11/20/2013)
82 ORDER granting 81 State Defendants' Unopposed Motion for Leave to File Overlength Response to Plaintiffs' Motion for Summary Judgment. Signed by Judge Robert J. Shelby on 11/21/2013. (tls) (Entered: 11/21/2013)
83 ORDER granting 80 Plaintiffs' Unopposed Motion for Leave to File Overlength Plaintiffs' Opposition to Motion of the GOvernor and Attorney General for Summary Judgment. Signed by Judge Robert J. Shelby on 11/21/2013. (tls) (Entered: 11/21/2013)
84 RESPONSE to Motion re 32 Plaintiff's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Gary R. Herbert, John Swallow. (Lott, Philip) (Entered: 11/22/2013)
85 Plaintiff's MEMORANDUM in Opposition re 33 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood. (Attachments: # 1 Appendix Index, # 2 Exhibit 1 − Decl of MVL Badgett PhD, # 3 Exhibit 2 − Decl of G Chauncey PhD, # 4 Exhibit 3 − Decl of NF Cott PhD, # 5 Exhibit 4 − Decl of CJ Patterson PhD, # 6 Exhibit 5 − Decl of LA Peplau PhD, # 7 Exhibit 6 − Supp Decl of LA Peplau PhD, # 8 Exhibit 7 − Decl of GM Segura PhD, # 9 Exhibit 8 − Brief of US in Windsor, # 10 Exhibit 9 − Brief of BLAG in Windsor, # 11 Exhibit 10 −Amici Curiae Brief of APA et al. in Windsor, # 12 Exhibit 11 − Amicus Curiae Brief of ASA in Windsor, # 13 Exhibit 12 − Amici Curiae Brief of Con Law Scholars in Windsor, # 14 Exhibit 13 − Amici Curiae Brief of 15 States in Sevcik v Sandoval, # 15 Exhibit 14 − Feb 24, 2004 Transcript, Utah House of Representatives (Excerpts))(Tomsic, Peggy) (Entered: 11/22/2013)
86 MOTION to File Amicus Brief by National Center for Lesbian Rights and Memorandum in Support filed by Movant National Center for Lesbian Rights. (Attachments: # 1 Exhibit Amicus Brief)(Kendell, Kathryn) (Entered: 12/02/2013)
87 Minute Entry for proceedings held before Judge Robert J. Shelby: Telephone Conference held on 12/2/2013. The Motion to File Amicus Brief 86 submitted by the National Center for Lesbian Rights is DENIED WITHOUT PREJUDICE to refile in the event that the lawsuit is not resolved on the pending Motions for Summary Judgment. The court finds that the amicus brief is untimely because it was filed too late to give the parties an adequate opportunity to respond given the current briefing schedule and imminent hearing., Motions terminated: 86 MOTION to File Amicus Brief by National Center for Lesbian Rights and Memorandum in Support filed by National Center for Lesbian Rights. Attorney for Plaintiff: James Magleby, Jennifer Parrish, Peggy Tomsic; Attorney for Defendants: Philip Lott, Stanford Purser, Darcy Goddard. Court Reporter: None.(mjm) (Entered:

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 12 of 14

12/06/2013
12/20/2013 12/20/2013 12/20/2013
12/20/2013 12/20/2013 12/21/2013 12/22/2013 12/23/2013 12/23/2013

12/02/2013)
88 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motions for Summary Judgment held on December 4, 2013 before Judge Robert J. Shelby. Court Reporter/Transcriber Raymond P. Fenlon, Telephone number 801−809−4634.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/27/2013. Redacted Transcript Deadline set for 1/6/2014. Release of Transcript Restriction set for 3/6/2014. (jmr) Modified on 3/6/2014 by removing restricted text(las). (Entered: 12/06/2013)
90 MEMORANDUM DECISION and ORDER granting 32 Motion for Summary Judgment; denying 33 Motion for Summary Judgment. Signed by Judge Robert J. Shelby on 12/20/2013. (tls) (Entered: 12/20/2013)
91 NOTICE OF APPEAL as to 90 Order on Motion for Summary Judgment,, Memorandum Decision filed by Gary R. Herbert, John Swallow. Appeals to the USCA for the 10th Circuit. Filing fee $ 505, receipt number 1088−1967766. (Lott, Philip) (Entered: 12/20/2013)
92 CLERK'S JUDGMENT signed by LSY − Chief Deputy Clerk. IT IS ORDERED AND ADJUDGED that judgment be entered in favor of the plaintiffs as follows: the court finds that the amendment known as Amendment 3 to Utah Constitution is unconstitutional because it denies the plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The State of Utah is enjoined from enforcing § 30−1−2 and § 30−1−4.1 of the Utah Code and Article I, §29 of the Utah Constitution to the extent these laws prohibit a person from marrying another person of the same sex. Case Closed. (tls) (Entered: 12/20/2013)
93 Transmission of Preliminary Record to USCA re 91 Notice of Appeal. (Attachments: # 1 Appendix)(jmr) (Entered: 12/20/2013)
94 Defendant's MOTION to Stay re 90 Order on Motion for Summary Judgment,, Memorandum Decision filed by Defendants Gary R. Herbert, John Swallow. (Lott, Philip) (Entered: 12/20/2013)
95 NOTICE OF HEARING ON MOTION re: 94 Defendant's MOTION to Stay re 90 Order on Motion for Summary Judgment. The court orders the Plaintiffs to file any response to the Defendants' Motion by 5:00pm on December 22, 2013. The Defendants may file a reply at any time before the hearing on Monday morning. Motion Hearing set for 12/23/2013 at 9:00 AM in Room 220 before Judge Robert J. Shelby. :(Notice generated by Mary Jane McNamee) (mjm) (Entered: 12/21/2013)
96 Plaintiff's MEMORANDUM in Opposition re 94 Defendant's MOTION to Stay re 90 Order on Motion for Summary Judgment,, Memorandum Decision filed by Plaintiffs Karen Archer, Kate Call, Derek Kitchen, Kody Partridge, Moudi Sbeity, Laurie Wood. (Tomsic, Peggy) (Entered: 12/22/2013)
97 Defendant's RESPONSE in Support of Motion for Stay Pending Appeal filed by Gary R. Herbert, John Swallow. (Lott, Philip) (Entered: 12/23/2013)
98 USCA Case Number Case Appealed to Tenth Circcuit Case Number 13−4178 for 91 Notice of Appeal filed by John Swallow, Gary R. Herbert. (jmr) (Entered: 12/23/2013)

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 13 of 14

12/23/2013 12/23/2013
12/23/2013 12/23/2013

99 ORDER of USCA Tenth Circuit as to 91 Notice of Appeal filed by John Swallow, Gary R. Herbert. Order filed by Judges Holmes and Bacharach denying motion for stay filed by Appellants Mr. Gary R. Herbert and John Swallow. See order for further details. (jmr) (Entered: 12/23/2013)
100 ORDER of USCA Tenth Circuit as to 91 Notice of Appeal filed by John Swallow, Gary R. Herbert. Order filed by Judges Holmes and Bacharach denying renewed Emergency Motion for Temporary Stay filed by Appellants Mr. Gary R. Herbert and John Swallow. See order for further details. (tls) (Additional attachment(s) added on 12/23/2013: # 1 Order) (tls). (Entered: 12/23/2013)
101 Modification of Docket: Error: Clerk attached incorrect document image to entry. Correction: Attached correct image to docket entry re 100 USCA Order. (tls) (Entered: 12/23/2013)
102 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion to Stay Pending Appeal held on 12/23/2013 before Judge Robert Shelby. Court Reporter/Transcriber Ray Fenlon, Telephone number 801−809−4634.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

12/23/2013 12/23/2013 12/23/2013
12/24/2013 12/26/2013

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/13/2014. Redacted Transcript Deadline set for 1/23/2014. Release of Transcript Restriction set for 3/24/2014. (las) Modified on 3/24/2014 by removing restricted text (las). (Entered: 12/23/2013)
104 ORDER of USCA Tenth Circuit as to 91 Notice of Appeal filed by John Swallow, Gary R. Herbert. Order filed by Judges Holmes and Bacharach: Following the district court's denial of their request for a stay pending appeal, Defendant−Appellants filed "Emergency Motion for Stay Pending Appeal and Temporary Stay Pending Resolution of Motion to Stay." Plaintiff−Appellees are ordered to file a response to these motions no later than 5:00 P.M. MST, today, 12/23/13. (las) (Entered: 12/23/2013)
105 ORDER re 94 Defendant's MOTION to Stay re 90 Order on Motion for Summary Judgment, Memorandum Decision filed by John Swallow, Gary R. Herbert. Signed by Judge Robert J. Shelby on 12/23/2013. (tls) (Entered: 12/23/2013)
106 Minute Entry for proceedings held before Judge Robert J. Shelby: Motion Hearing held on 12/23/2013 re 94 Defendant's MOTION to Stay re 90 Order on Motion for Summary Judgment/Memorandum Decision filed by John Swallow, Gary R. Herbert. The court hears oral argument and takes a brief recess. The court denies the defendant's motion to stay. An order will be issued by the court. Attorney for Plaintiff: Peggy Tomsic, Jennifer Parrish; Attorney for Defendant: Philip Lott, Brian Tarbet, Steven Walkenhorst − rep State dfts; Darcy Goddard, Ralph Chamness − SL Cnty District Atty's Office. Court Reporter: Ray Fenlon.(mjm) (Entered: 12/23/2013)
107 ORDER of USCA Tenth Circuit as to 91 Notice of Appeal filed by John Swallow, Gary R. Herbert. Order filed by Judges Holmes and Bacharach denying motion for stay pending appeal and for temporary stay filed by Appellants Mr. Gary R. Herbert and John Swallow. This case will be heard on an expedited basis. See order for further details. Served on 12/24/2013. (jmr) (Entered: 12/26/2013)
108 TRANSCRIPT REQUEST FORM filed by Gary R. Herbert, John Swallow for proceedings held on 12−4−2013 before Judge Shelby, re 91 Notice of Appeal (Purser, Stanford) (Entered: 12/26/2013)

Case: 2:13-cv-00217-RJS As of: 04/17/2015 02:18 PM MDT 14 of 14

12/26/2013 12/27/2013 01/06/2014
02/03/2014 02/27/2014
03/24/2014 08/06/2014 10/06/2014

110 DOCUMENTS LODGED consisting of Amicus Brief. (tls) (Entered: 12/30/2013)
109 Please be advised the Record is complete for purposes of appeal for USCA case number 13−4178 re 91 Notice of Appeal. (jmr) (Entered: 12/27/2013)
111 ORDER of USCA Supreme Court−as to 91 Notice of Appeal filed by John Swallow, Gary R. Herbert . The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13−cv−217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. (jmr) Modified on 1/6/2014 to fix typo(jmr). (Entered: 01/06/2014)
112 ORDER of USCA Tenth Circuit as to 91 Notice of Appeal(13−4178) filed by John Swallow, Gary R. Herbert . This matter is before the court on the Proposed Intervenor Couples opposed motion to intervene and to participate in oral argument. At the direction of the court, and upon its review, the motion is denied. Served on 2/03/2014. (jmr) (Entered: 02/04/2014)
113 ORDER of USCA Tenth Circuit as to 91 Notice of Appeal(13−4178) filed by John Swallow, Gary R. Herbert. Order filed by Clerk of the Court granting Appellants' motion to extend time to file reply brief and to exceed the word count for that brief. Appellants' reply brief due 03/11/2014. In addition, the appellants may exceed the word count for that brief by 5,000 words, resulting in a maximum of 12,000 words. (jmr) (Entered: 02/27/2014)
114 ORDER of USCA Tenth Circuit as to 91 Notice of Appeal(13−4178) filed by John Swallow, Gary R. Herbert. This matter is before the court on Mr. Duane Morley Coxs Motion for Leave to Participate in Oral Arguments in Support of Utahs Constitutional Amendment No. 3. Upon consideration, and at the specific direction of the court, the motion is denied. (jmr) (Entered: 03/24/2014)
115 Letter from US Supreme Court re: Notice of Petition for Writ of Certiorari re 91 Notice of Appeal. Supreme Court Case Number 14−124. (las) (Entered: 08/06/2014)
116 MANDATE of USCA as to 91 Notice of Appeal filed by John Swallow, Gary R. Herbert. On this date, the United States Supreme Court denied certiorari review in this matter. Consequently, the stay of the mandate directed in out decision dated June 25, 2014 is lifted, and the mandate shall issue forthwith. A copy of this order shall stand as the mandate of the court. (las) (Entered: 10/06/2014)

 
 1/14/2014 Utah.gov Services
Home

Agencies

Utah Governor Gary R. Herbert

Search all of Utah.gov »

ABOUT NEWS & MEDIA PRIORITIES STAFF CABINET BLOG BOARDS & COMMISSIONS CONTACT

Home New s & Media Story Details
Governor's Office gives direction to state agencies on same-sex marriages
Jan 08 2014
SALT LAKE CITY (Jan. 8, 2014) – The Governor's Chief of Staff Derek Miller sent the following email to Cabinet Members last night providing direction on the status of same-sex marriages in Utah:
Dear Cabinet,
I'm sure you are all aware of the issuance of the stay regarding same-sex marriage in Utah from the United States Supreme Court yesterday. This stay effectively puts a hold on the decision of the district court, which found state laws prohibiting same-sex marriage in Utah to be unconstitutional.
After the district court decision was issued on Friday, December 20th, some same-sex couples availed themselves of the opportunity to marry and to the status granted by the state to married persons. This office sent an email to each of you soon after the district court decision, directing compliance.
With the district court injunction now stayed, the original laws governing marriage in Utah return to effect pending final resolution by the courts. It is important to understand that those laws include not only a prohibition of performing same-sex marriages but also recognizing same-sex marriages.
Based on counsel from the Attorney General's Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.
Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.
We appreciate your patience and diligence in this matter. We recognize that different state agencies have specific questions and circumstances that will need to be worked through. Please do so with the Assistant Attorney General assigned to your respective agency in coordination with the Governor’s General Counsel. We also recognize that these changes affect real people’s lives. Let us carefully and considerately ensure that we, and our employees throughout the state, continue to treat all people with respect and understanding as we assist them.
Regards,
Derek B. Miller Chief of Staff Governor's Office State of Utah
Related Stories
The Governor's Office issued the following statement regarding the Department of Justice announcement:
Governor's Office gives direction to state agencies on same sex marriage issues
Flag Notification for Senator Edward M. Kennedy
http://www.utah.gov/governor/news_media/article.html?article=9617

Press Releases and Advisories
News Advisories News Releases
Media Contacts
Nate McDonald
Public Inform ation Officer
OFFICE: (801) 538-1509 MOBILE: (801) 694-0294 EMAIL: nmcdonald@utah.gov
Twitter
Follow announcements on Twitter
Subscriptions
RSS feed for News Releases RSS feed for News Advisories RSS feed for both News Releases & News Advisories
1/2

1/14/2014

Utah Governor Gary R. Herbert

Flags lowered for National Fallen Firefighters Memorial Service

Flags lowered in honor of victims of the tragedy at Fort Hood, TX

If you found this news piece interesting, please consider sharing it through your social network.

Like Share 700 Tw eet 30

Utah.gov Home | Utah.gov Terms of Use | Utah.gov Privacy Policy | Utah.gov Accessibility Policy | Translate Utah.gov
Copyright © 2013 State of Utah - All rights reserved.

http://www.utah.gov/governor/news_media/article.html?article=9617

2/2

1/14/2014 Utah.gov Services
Home

Agencies

Utah Governor Gary R. Herbert

Search all of Utah.gov »

ABOUT NEWS & MEDIA PRIORITIES STAFF CABINET BLOG BOARDS & COMMISSIONS CONTACT

Home New s & Media Story Details
Governor's Office gives direction to state agencies on same-sex marriages
Jan 08 2014
SALT LAKE CITY (Jan. 8, 2014) – The Governor's Chief of Staff Derek Miller sent the following email to Cabinet Members last night providing direction on the status of same-sex marriages in Utah:
Dear Cabinet,
I'm sure you are all aware of the issuance of the stay regarding same-sex marriage in Utah from the United States Supreme Court yesterday. This stay effectively puts a hold on the decision of the district court, which found state laws prohibiting same-sex marriage in Utah to be unconstitutional.
After the district court decision was issued on Friday, December 20th, some same-sex couples availed themselves of the opportunity to marry and to the status granted by the state to married persons. This office sent an email to each of you soon after the district court decision, directing compliance.
With the district court injunction now stayed, the original laws governing marriage in Utah return to effect pending final resolution by the courts. It is important to understand that those laws include not only a prohibition of performing same-sex marriages but also recognizing same-sex marriages.
Based on counsel from the Attorney General's Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.
Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.
We appreciate your patience and diligence in this matter. We recognize that different state agencies have specific questions and circumstances that will need to be worked through. Please do so with the Assistant Attorney General assigned to your respective agency in coordination with the Governor’s General Counsel. We also recognize that these changes affect real people’s lives. Let us carefully and considerately ensure that we, and our employees throughout the state, continue to treat all people with respect and understanding as we assist them.
Regards,
Derek B. Miller Chief of Staff Governor's Office State of Utah
Related Stories
The Governor's Office issued the following statement regarding the Department of Justice announcement:
Governor's Office gives direction to state agencies on same sex marriage issues
Flag Notification for Senator Edward M. Kennedy
http://www.utah.gov/governor/news_media/article.html?article=9617

Press Releases and Advisories
News Advisories News Releases
Media Contacts
Nate McDonald
Public Inform ation Officer
OFFICE: (801) 538-1509 MOBILE: (801) 694-0294 EMAIL: nmcdonald@utah.gov
Twitter
Follow announcements on Twitter
Subscriptions
RSS feed for News Releases RSS feed for News Advisories RSS feed for both News Releases & News Advisories
1/2

 
 STATE OF UTAH
Office of the Attorney General
To all County Attorneys and County Clerks in the State of Utah: The Utah Office of the Attorney General has been asked by certain counties for legal
clarification about whether or not to mail or otherwise provide marriage certificates to persons of the same sex whose marriage ceremonies took place between December 20, 2013 and January 6, 2014, prior to the issuance of the stay by the U.S . Supreme Court. We otter the following guidance: Although the State of Utah cannot currently legally recognize marriages other than those between a man and a woman, marriages between persons of the same sex were recognized in the state of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed. While the validity of the marriages in question must ultimately be decided by the legal appeals process presently working its way through the courts, the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law. Therefore, it is recommended that county clerks provide marriage certificates to all persons whose marriages were solemnized during this period as an administrative function and not a legal function. This would allow, for instance, same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage.
Sean D. Reyes Utah Attorney General
Utah State Capitol 350 North State Street. Suite 230 P.O Box 142320 Salt Lake City. Utah 84414-2320 Telephone:(80 I)538-9600 - Fax:(80 I)538-1 121

 
 1/14/2014

USDOJ: Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Utah

Hom e » Briefing Room » Justice News

Department of Justice

Office of Public Affairs

FOR IMMEDIA TE RELEA SE

Friday , January 10, 2014

Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Utah

Attorney General Eric Holder issued the following statement today on the status of same-sex marriages performed in the state of Utah:

“Last June, the Supreme Court issued a landmark decision – in United States v . Windsor – holding that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This ruling marked a historic step toward equality for all American families. And since the day it was handed down, the Department of Justice has been working tirelessly to implement it in both letter and spirit—mov ing to ex tend—federal benefits to married same-sex couples as swiftly and smoothly as possible.

"Recently , an administrativ e step by the court has cast doubt on same-sex marriages that hav e been performed in the state of Utah. And the gov ernor has announced that the state will not recognize these marriages pending additional court action.

"In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relev ant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds. In the day s ahead, we will continue to coordinate across the federal gov ernment to ensure the timely prov ision of ev ery federal benefit to which Utah couples and couples throughout the country are entitled – regardless of whether they are in same-sex or opposite-sex marriages. And we will continue to prov ide additional information as soon as it becomes av ailable.”
A v ideo recording of the Attorney General deliv ering the abov e statement can be v iewed at: www.justice.gov /v ideo.php.

1 4-0 3 1

Attorney General

Printer Friendly
Get a Job Locate a Prison, Inmate, or Sex Offender Apply for a Grant Submit a Complaint Report Waste, Fraud, Abuse or Misconduct to the Inspector General Find Sales of Seized Property Find Help and Information for Crime V ic tims Register, Apply for Permits, or Request Re c o r ds Identify Our Most Wanted Fugitiv es Find a Form Report and Identify Missing Persons Contact Us

http://www.justice.gov/opa/pr/2014/January/14-ag-031.html

1/2

1/14/2014

USDOJ: Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Utah

ABOUT The Attorney General Budget & Performance Strategic Plans
AGENCIES
BUSINESS & GRANTS Business Opportunities Small & Disadvantaged Business Grants

RESOURCES Forms Publications Case Highlights Legislative Histories
NEWS Justice New s The Justice Blog
Public Schedule Videos Photo Gallery

CAREERS Legal Careers Interns, Recent Graduates, and Fellow s Diversity Policy Veteran Recruitment
CONTACT

Site Map A to Z Index Archive Accessibility FOIA No FEAR Act Information Quality
Privacy Policy Legal Policies & Disclaimers

For Employees Office of the Inspector General
Government Resources
USA.gov BusinessUSA

http://www.justice.gov/opa/pr/2014/January/14-ag-031.html

2/2

1/14/2014

USDOJ: Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Utah

Hom e » Briefing Room » Justice News

Department of Justice

Office of Public Affairs

FOR IMMEDIA TE RELEA SE

Friday , January 10, 2014

Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Utah

Attorney General Eric Holder issued the following statement today on the status of same-sex marriages performed in the state of Utah:

“Last June, the Supreme Court issued a landmark decision – in United States v . Windsor – holding that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This ruling marked a historic step toward equality for all American families. And since the day it was handed down, the Department of Justice has been working tirelessly to implement it in both letter and spirit—mov ing to ex tend—federal benefits to married same-sex couples as swiftly and smoothly as possible.

"Recently , an administrativ e step by the court has cast doubt on same-sex marriages that hav e been performed in the state of Utah. And the gov ernor has announced that the state will not recognize these marriages pending additional court action.

"In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relev ant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds. In the day s ahead, we will continue to coordinate across the federal gov ernment to ensure the timely prov ision of ev ery federal benefit to which Utah couples and couples throughout the country are entitled – regardless of whether they are in same-sex or opposite-sex marriages. And we will continue to prov ide additional information as soon as it becomes av ailable.”
A v ideo recording of the Attorney General deliv ering the abov e statement can be v iewed at: www.justice.gov /v ideo.php.

1 4-0 3 1

Attorney General

Printer Friendly
Get a Job Locate a Prison, Inmate, or Sex Offender Apply for a Grant Submit a Complaint Report Waste, Fraud, Abuse or Misconduct to the Inspector General Find Sales of Seized Property Find Help and Information for Crime V ic tims Register, Apply for Permits, or Request Re c o r ds Identify Our Most Wanted Fugitiv es Find a Form Report and Identify Missing Persons Contact Us

http://www.justice.gov/opa/pr/2014/January/14-ag-031.html

1/2

 
 Herbert v. Kitchen, 134 S.Ct. 893 (Mem) (2014)
134 S.Ct. 893 Supreme Court of the United States Gary R. HERBERT, Governor of Utah, et al.,
applicants, v.
Derek KITCHEN, et al. No. 13A687. | Jan. 6, 2014.
Case below, ––– F.Supp.2d ––––.

Opinion
Application for stay presented to Justice SOTOMAYOR and by her referred to the Court granted. Permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13–cv–217, on December 20, 2013, stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.
	  

1

 
 1/14114
llah.gov Services

UtahAtla'rrt!I(Generai &BI D. Rt¥18 OI'ncial S1Ben'II!ri - Ulltl OI'nce d'IhIINfarrt!l(GenenII Agencies

OFFICE OF THE

ATIORNEY GENERAL

SNrd1111 of Ulilh.Qov»

My Mission Protecting Utah Pro1scting Children

Our Office Press Room Opinions & Tools Contact

Search ...

UTAH ATTORNEY GENERAL SEAN D. REYES OFFICIAL STATEMENT
Posted on: January 8th, 2014 by rbruckman
~e Lllderstand that this is a matlerof great public import ttet impacts liws on a wry personal basis. Priorto and sirce the U.S. Sl4lreme Courlstayofthe disbictcoLri's iriunction in Ki1chen
v. Harbert, Olroftlce has been researching the proper legal course to address this uniquely
challenging Issue Vo/Ithoul any clear precedent to glJde us.
We are unable to reach a legal conclusion as to the IJIimate validity of marriage between persons of the same sexwho completed their marriage ceremony in utah between Dec 20, 2013 and Jan. 6, 2014. That question remains unanswered and the answer will depend on the reslJi. of the appeal process.
The Office of the AtlDmey General has advised the GOYemor in !tis case and will contiooe to work with the Govemor and the individual agencies as they evaluate the applcation of specific policies and benefits within their agencies. A review team has been established to advise on a case-by-case basis.
The stay means that Utah's laws defining man1age, Including Amendment 3 are again In effect and the co~ clerks in all of Utah's 29 cones, sirce the enbyofthe stayon Jal'lJllry6, are unable to issue lcenses to many persons oftha same sex.
The SIa1e can neither recogniza rorcorfer new marital benefits. While the ultimate validity of sL.d'l marriages is subject to the decision of a higher colrl, it is clearthat the State is boLlld by law to limit any benefits attaChing after the stay. We acknowledge that ttis is a very difficUi: situation for many. I was the reason Olr oftice sought the stay of the district court's decision immediately. We wanted to awid the lI1Ienable
situation inwtich manyofolrcitizans find themselves. We are diligenUyseeking certainly for al Utah s ttrough proper and orderly legal process.·

PRESSROOM
• ~iglilgCliWi
-• ~Ill!lill Cgnlll![G!1
• AllI:Ilg CIIPI •
GRAMA
• ~dlllfKl Malidll • ~1lI!11 B,ggm All<ti~1
RECENT PRESS
• Utah Attorney General Sean D ReYM Armlrx;es New LMgRRlhlp TRam
Janua/y 10. 2014
• t\ttpmey General Sean P Bawl Cgurwels
Cioyrty AUnmew sn:! Cgl.l1ty CleW in
!JIab
..t.nuaI)'t.2014
• lJbJb Attprmy G!)ooral Soan D Rpm
Offiasl stalirnAnt
.JenwIyl.2014
Offiaal statement SWllI!me Cgl'f. decjsign 10 Qrart a staygn utah District Court OJllng
Janua/y •• 2014
• AG'I Office Files RBguelilfor staywilh
SWllI!me !;gUrt
0._31,2013
PRESS CATEGORIES
Criminal Appeals
-• Cdmil:llllllifililOll JCM: • • ~1lI!!ilIBaI!ll!U!ll!
BS ~ZZ
• !..!r:gfgggrimd

CONTACT: Missy Larsen 801-538-1892

1/2

1/14114
###

R_ UtmlAllDrneyGen...a1 Sean D.

OfIicial_- Utml OfIiceoftheAllDrneyGenerai

OFFICE OF THE ATTORNEY GENERAL Utah Slale Capitol Complex 350 North Slale Street Suile 230 SLC UT84114-2320

GENERAL OFFICE NUMBERS: (801) 366-0260 (801) 538-9600 (801) 366-0300

utah.gev Home I utah.gov Tenns of Use I Utah.gev Priwcv Policy I utah.gov Accessibility Policy I Translate utah.gov
Copyright 02013 8tate of utah • All rlgtrt. ...-erved.

D

atIDr""llleneral.utml.gCN'2014101I!J&1u1a1>.atlDrnay-general-sea.,.""..,.,.-cl!icial-s-..entl

2f2

 
 PUBLISH

FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

June 25, 2014

TENTH CIRCUIT

Elisabeth A. Shumaker Clerk of Court

DEREK KITCHEN; MOUDI SBEITY; KAREN ARCHER; KATE CALL; LAURIE WOOD; KODY PARTRIDGE, individually,
Plaintiffs - Appellees,
v.
GARY R. HERBERT, in his official capacity as Governor of Utah; SEAN REYES, in his official capacity as Attorney General of Utah,
Defendants - Appellants,
and
SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County,
Defendant.

No. 13-4178

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:13-CV-00217-RJS)
Gene C. Schaerr, Special Assistant Attorney General, Salt Lake City, Utah (Brian L. Tarbet, Chief Deputy Attorney General, Parker Douglas, Chief of Staff and General Counsel, Stanford E. Purser, and Philip S. Lott, Assistant Utah Attorneys General, Salt Lake City, Utah, and John J. Bursch, Warner Norcross & Judd LLP, Grand Rapids, Michigan, and Monte N. Stewart, Boise, Idaho, with him on the briefs), for Defendants– Appellants.

Peggy A. Tomsic, Magleby & Greenwood PC, Salt Lake City, Utah (James E. Magleby and Jennifer Fraser Parrish, Magleby & Greenwood PC, Salt Lake City, Utah, and Kathryn D. Kendell, Shannon P. Minter, David C. Codell, National Center for Lesbian Rights, San Francisco, California, with her on the brief), for Plaintiffs–Appellees.*
Before KELLY, LUCERO, and HOLMES, Circuit Judges.
LUCERO, Circuit Judge.
Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal brought to us by the Governor and Attorney General of the State of Utah from an adverse ruling of the district court.
We are told that because they felt threatened by state-court opinions allowing same-sex marriage, Utah legislators and—by legislature-initiated action—the citizens of the State of Utah amended their statutes and state constitution in 2004 to ensure that the State “will not recognize, enforce, or give legal effect to any law” that provides “substantially equivalent” benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex. Utah Code § 30-1-4.1. These laws were
* The names of all amicus curiae parties are contained in Appendix A to this Opinion.
-2-

also intended to assure non-recognition irrespective of how such a domestic union might be denominated, or where it may have been performed. Id. Plaintiffs challenged the constitutionality of these laws and the district court agreed with their position. Under 28 U.S.C. § 1291, we entertain the appeal of that ruling.
Our Circuit has not previously considered the validity of same-sex marriage bans. When the seed of that question was initially presented to the United States Supreme Court in 1972, the Court did not consider the matter of such substantial moment as to present a justiciable federal question. Baker v. Nelson, 409 U.S. 810 (1972) (per curiam). Since that date, the seed has grown, however. Last year the Court entertained the federal aspect of the issue in striking down § 3 of the Defense of Marriage Act (“DOMA”), United States v. Windsor, 133 S. Ct. 2675 (2013), yet left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?
Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.
-3-

I Utah residents Derek Kitchen and Moudi Sbeity have been in a loving, committed relationship for several years. The couple lives together in Salt Lake City, where they jointly own and operate a business. Kitchen declares that Sbeity “is the man with whom I have fallen in love, the man I want to marry, and the man with whom I want to spend the rest of my life.” In March 2013, Kitchen and Sbeity applied for a marriage license from the Salt Lake County Clerk’s office, but were denied because they are both men. Being excluded from the institution of marriage has caused Kitchen and Sbeity to undertake a burdensome process of drawing up wills and other legal documents to enable them to make important decisions for each other. Even with these protections, however, the couple cannot access various benefits of marriage, including the ability to file joint state tax returns and hold marital property. Sbeity also states that the legal documents the couple have obtained “do not and cannot provide the dignity, respect, and esteem” of marriage. The inability to “dignify [his] relationship” though marriage, Kitchen explains, communicates to him that his relationship with Sbeity is unworthy of “respect, equal treatment, and social recognition.” Laurie Wood and Kody Partridge are also Utah residents who wish to “confirm [their] life commitment and love” through marriage. They applied for a marriage license from the Salt Lake County Clerk’s office in March 2013, but were denied because they are both women. This denial made Wood “feel like a second class citizen.” The couple’s inability to marry carries financial consequences. Because Partridge will be unable to obtain benefits under Wood’s pension, the couple has procured additional life insurance
-4-

policies. Partridge states that she and Wood face “risks and stigmas that none of [her] heterosexual married friends and family ever have to face.” She points to the example of her parents, who were married for fifty-five years, observing that her father never had to worry about his ability to be present or make medical decisions when his wife became terminally ill. Wood hopes that marriage to Partridge will allow “both society and our families [to] recognize the life commitment and love we feel for each other.”
Karen Archer and Kate Call are also Utah residents in a loving, committed relationship. Archer, who suffers from chronic health problems, fears that the legal documents the couple has prepared will be subject to challenge if she passes away. Her past experience surviving other partners informs this fear. Although the documents she prepared in a prior relationship served their purpose when her former partner passed, Archer was ineligible to receive her partner’s military pension benefits. Seeking the security enjoyed by other married couples, Archer and Call travelled to Iowa in July 2011, where they were wed. Because they could not be married in their home state, financial constraints dictated a modest wedding unattended by family and friends. “Despite the inconvenience and sad pragmatism of our Iowa marriage,” Call explains, “we needed whatever protections and security we could get for our relationship” because of Archer’s failing health. However, Utah does not recognize Archer and Call’s marriage.
In March 2013, Kitchen, Sbeity, Wood, Partridge, Archer, and Call filed suit against the Governor and Attorney General of Utah and the Clerk of Salt Lake County (all in their official capacities). Plaintiffs challenged three provisions of Utah law
-5-

relating to same-sex marriage. Utah Code § 30-1-2(5) includes among the marriages that
are “prohibited and declared void” those “between persons of the same sex.” Id. In
2004, the Utah Legislature passed § 30-1-4.1, which provides:
(1)(a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter.
(b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married.
(2) Nothing in Subsection (1) impairs any contract or other rights, benefits, or duties that are enforceable independently of this section.
Id. The Legislature also referred a proposed constitutional amendment, known as
Amendment 3, to Utah’s voters. It states:
(1) Marriage consists only of the legal union between a man and a woman.
(2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.
Utah Const. art. I, § 29; see Laws 2004, H.J.R. 25 § 1.
The State’s official voter pamphlet described rulings by courts in other states
striking down statutory prohibitions on same-sex marriage as inconsistent with state
constitutional provisions. In the “arguments for” section, written by a state representative
and a state senator, the proponents argued that the Amendment was necessary to protect
against a similar state-court ruling. They posited that the proposed amendment would not
“promote intolerance, hatred, or bigotry” but would instead “preserve[ an] historic
understanding of marriage” rooted in “government’s strong interest in maintaining public
-6-

morality, the justified preference for heterosexual marriage with its capacity to perpetuate the human race and the importance of raising children in that preferred relationship.” Opponents of the amendment argued that it “singles out one specific group—people who are our relatives, neighbors, and co-workers—to deny them hundreds of rights and protections that other Utahns enjoy.” Amendment 3 passed with approximately 66% of the vote and became § 29 of Article I of the Utah Constitution. This opinion will refer to both of the foregoing statutes, along with the constitutional amendment, collectively as “Amendment 3.”
Plaintiffs allege that Amendment 3 violates their right to due process under the Fourteenth Amendment by depriving them of the fundamental liberty to marry the person of their choice and to have such a marriage recognized. They also claim that Amendment 3 violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs asserted their claims under 42 U.S.C. § 1983, seeking both a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement.
On cross motions for summary judgment, the district court ruled in favor of the plaintiffs. It concluded that “[a]ll citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual’s ability to marry and the intimate choices a person makes about marriage and family.” Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1204 (D. Utah 2013). The court further held that Amendment 3 denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. Id. at 1206-07, 1210-15. It declared Amendment 3
-7-

unconstitutional and permanently enjoined enforcement of the challenged provisions. Id. at 1216.
Utah’s Governor and Attorney General filed a timely notice of appeal and moved to stay the district court’s decision. Both the district court and this court denied a stay. The Supreme Court, however, granted a stay of the district court’s injunction pending final disposition of the appeal by this court.
II We first consider the issue of standing, although it was not raised by the parties. See Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (“[S]tanding is a component of this court’s jurisdiction, and we are obliged to consider it sua sponte to ensure the existence of an Article III case or controversy.”). To possess Article III standing, a plaintiff must “establish (1) that he or she has suffered an injury in fact; (2) that the injury is fairly traceable to the challenged action of the defendant; and[] (3) that it is likely that the injury will be redressed by a favorable decision.” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir. 2012) (quotations omitted). Plaintiffs suing public officials can satisfy the causation and redressability requirements of standing by demonstrating “a meaningful nexus” between the defendant and the asserted injury. Bronson v. Swensen, 500 F.3d 1099, 1111-12 (10th Cir. 2007). “[T]he causation element of standing requires the named defendants to possess authority to enforce the complained-of provision,” id. at 1110, and “[t]he redressability prong is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute,” id. at 1111. “Whether the Defendants have enforcement authority is
-8-

related to whether, under Ex parte Young, they are proper state officials for suit.” Cressman v. Thompson, 719 F.3d 1139, 1146 n.8 (10th Cir. 2013) (citation omitted). Under Ex parte Young, a state defendant sued in his official capacity must “have some connection with the enforcement” of a challenged provision. 209 U.S. 123, 157 (1908). “An officer need not have a special connection to the allegedly unconstitutional statute; rather, he need only have a particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Chamber of Commerce of the U.S. v. Edmondson, 594 F.3d 742, 760 (10th Cir. 2010) (quotation omitted); see also Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007) (“So long as there is [some] connection [with enforcement of the act], it is not necessary that the officer’s enforcement duties be noted in the act.” (quotation omitted)).
We have no doubt that at least four of the plaintiffs possessed standing to sue the Salt Lake County Clerk based on their inability to obtain marriage licenses from the Clerk’s office. Plaintiffs have identified several harms that flow from this denial, including financial injury. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir. 2005) (economic loss may constitute injury-in-fact). Because county clerks are responsible under Utah law for issuing marriage licenses and recording marriage certificates, Utah Code §§ 30-1-7(1) & 30-1-12(1), these plaintiffs’ injuries were caused by the Clerk’s office and would be cured by an injunction prohibiting the enforcement of Amendment 3. Accordingly, the Salt Lake County Clerk possessed the requisite nexus to plaintiffs’ injuries.
-9-

The Salt Lake County Clerk, however, has not appealed from the district court’s order. We must therefore consider whether the Governor and Attorney General are proper appellants absent the County Clerk. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013) (“[S]tanding must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” (quotation omitted)). In Bishop v. Oklahoma ex rel. Edmondson, 333 F. App’x 361 (10th Cir. 2009) (unpublished), we held that Oklahoma’s Governor and Attorney General were not proper defendants in a challenge to that state’s prohibition on same-sex marriage. Id. at 365. Because of the legal and factual differences between that case and this one, we reach the opposite conclusion as to Utah’s Governor and Attorney General.
Our holding in Bishop turned on the conclusion that marriage licensing and recognition in Oklahoma were “within the administration of the judiciary.” Id. The district court clerk charged with various duties related to marriage “‘is judicial personnel and is an arm of the court . . . subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk’s administrative district.’” Id. (quoting Speight v. Presley, 203 P.3d 173, 177 (Okla. 2008) (additional internal quotation omitted)). Accordingly, we concluded that “the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage.” Id.
In Utah, marriage licenses are issued not by court clerks but by county clerks. See Utah Code §§ 17-20-4 (listing duties of county clerks) & 17-53-101 (providing for election of county clerks). The Governor and Attorney General have explicitly taken the
-10-

position in this litigation that they “have ample authority to ensure that” the Salt Lake County Clerk “return[s] to her former practice of limiting marriage licenses to manwoman couples in compliance with Utah law.” This assertion is supported by the Utah Code. The Governor is statutorily charged with “supervis[ing] the official conduct of all executive and ministerial officers”1 and “see[ing] that all offices are filled and the duties thereof performed.” § 67-1-1(1) & (2). In addition, he “may require the attorney general to aid any county attorney or district attorney in the discharge of his duties.” § 67-1-1(7). Utah law allows an action for the removal of a county officer for “malfeasance in office” to be brought by a “county attorney, or district attorney for the county in which the officer was elected or appointed, or by the attorney general.” §§ 77-6-1 & -2.
The Attorney General is required to “exercise supervisory powers over the district and county attorneys of the state in all matters pertaining to the duties of their offices” and “when required by the public service or directed by the governor, assist any county, district, or city attorney in the discharge of his duties.” § 67-5-1(6) & (8). A clerk who “knowingly issues a license for any prohibited marriage is guilty of a class A misdemeanor.” § 30-1-16. Such charges would be filed by a county or district attorney under the supervision of the Attorney General. See § 17-18a-201 (district and county attorneys act as public prosecutors). And the Governor could order the Attorney General to assist in such prosecution. § 67-1-1(7).
1 In her answer, the Salt Lake County Clerk stated that her duties are “purely ministerial,” and that the “State of Utah controls the content of the form application to be completed by those seeking marriage licenses in the State of Utah.”
-11-

The Governor and Attorney General have also demonstrated a “willingness to
exercise” their duty to ensure clerks and other state officials enforce Amendment 3.
Chamber of Commerce, 594 F.3d at 760 (quotation omitted). The record shows that the
Governor coordinated state agencies’ response to the district court’s order, informing his
cabinet:
For those agencies that now face conflicting laws either in statute or administrative rule, you should consult with the Assistant Attorney Generals assigned to your agency on the best course to resolve those conflicts. You should also advise your analyst in [the Governor’s Office of Management and Budget] of the plans for addressing the conflicting laws.
Where no conflicting laws exist you should conduct business in compliance with the federal judge’s ruling until such time that the current district court decision is addressed by the 10th Circuit Court.
Thus, state agencies with responsibility for the recognition of out-of-state
marriages are being directed by the Governor in consultation with the Attorney General.
These officials’ authority over such agencies is confirmed by Utah law. For example,
Plaintiffs Archer and Call, who were married in Iowa, specifically seek to file joint Utah
tax returns. Although the Utah State Tax Commission is charged in the first instance
with the duty “to administer and supervise the tax laws of the state,” Utah Code § 59-1-
210(5), the Attorney General in his constitutional role as “the legal adviser of the State
officers,” Utah Const. art. VII, § 16, is required by statute to offer his “opinion in writing
. . . to any state officer, board, or commission,” Utah Code § 67-5-1(7). The Attorney
General considers his opinions to the Utah State Tax Commission, even informal ones, to
be “authoritative for the purposes” of the Commission “with respect to the specific
questions presented.” Applicability of Sales & Use Tax to Transfer of Motor Vehicle
-12-

from a Partner to a P’ship, Op. Utah Att’y Gen. 86-13 (1987), 1987 Utah AG LEXIS 15, at *22. The Attorney General is empowered to direct the Tax Commission to recognize Archer and Call’s Iowa wedding, and the Commission would be legally obligated to follow that instruction and accept a joint tax return. Accordingly, Archer and Call had standing to sue the Attorney General for the injuries caused by Amendment 3’s nonrecognition provisions. See generally Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir. 2011) (“Plaintiffs must have standing to seek each form of relief in each claim.” (quotation omitted)).
The same is true with respect to the Governor. Utah’s “executive power” is “vested in the Governor.” Utah Const. art. VII, § 5. In the exercise of that power, the Governor appoints the state’s tax commissioners and has the power to initiate proceedings to remove them from office. Utah Code § 59-1-201. Shortly after the Governor sent the above-quoted message to state agencies, the Tax Commission issued a Tax Notice stating that “[s]ame-sex couples who are eligible to file a joint federal income tax return and who elect to file jointly, may also file a joint 2013 Utah Individual Income Tax return.” Utah State Tax Commission, Individual Income Tax Returns for Same-Sex Couples for Tax Year 2013 (Jan. 15, 2014) (available at http://tax.utah.gov/notice/201401-15.pdf). The Tax Notice refers to the district court’s injunction, noting that a stay of that order had not been granted as of December 31, 2013. Id. Thus, one of the injuries explicitly cited by plaintiffs Archer and Call has been at least temporarily redressed by the district court’s decision and actions taken in response to it by the Governor after consultation with the Attorney General.
-13-

We conclude that the Governor’s and the Attorney General’s actual exercise of supervisory power and their authority to compel compliance from county clerks and other officials provide the requisite nexus between them and Amendment 3. Although “it does not suffice if the injury complained of is the result of the independent action of some third party not before the court, that does not exclude injury produced by determinative or coercive effect upon the action of someone else.” Bennett v. Spear, 520 U.S. 154, 169 (1997) (quotation, alteration, and emphasis omitted). And a state official is a proper defendant if he is “responsible for general supervision of the administration by the local . . . officials” of a challenged provision. Papasan v. Allain, 478 U.S. 265, 282 n.14 (1986) (quotation omitted). This is so even if the state officials are “not specifically empowered to ensure compliance with the statute at issue,” if they “clearly have assisted or currently assist in giving effect to the law.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007) (footnote omitted).
Having concluded that the Governor and Attorney General were properly made defendants below, we hold that they have standing to appeal the district court’s decision without participation of the Salt Lake County Clerk. See Finstuen, 496 F.3d at 1151 (“Nothing in Ex Parte Young requires that any appeal of a lower court’s judgment involve all named state defendants.”). As unsuccessful parties below, both appellants were “injured by the judgment sought to be reviewed.” Parr v. United States, 351 U.S. 513, 516 (1956); see also Concorde Res., Inc. v. Woosley (In re Woosley), 855 F.2d 687, 688 (10th Cir. 1988) (“Ordinarily, only a litigant who is a party below and who is aggrieved by the judgment or order may appeal.” (quotation and emphasis omitted)).
-14-

Both the Governor and the Attorney General are subject to the district court’s injunction prohibiting them from enforcing Amendment 3. See Kitchen, 961 F. Supp. 2d at 1216; cf. Hollingsworth, 133 S. Ct. at 2662 (concluding appellants lacked standing to appeal because “the District Court had not ordered [the intervenors] to do or refrain from doing anything”). We thus conclude that standing issues do not prevent us from considering this appeal.
III In 1972, the Supreme Court summarily “dismissed for want of substantial federal question” an appeal from the Minnesota Supreme Court upholding a ban on same-sex marriage. Baker, 409 U.S. 810. The state court considered “whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled.” Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971). It concluded that the statute used the term “marriage” as “one of common usage, meaning the state of union between persons of the opposite sex.” Id. at 185-86. The state court further reasoned that “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis” and that “[t]he due process clause of the Fourteenth Amendment is not a charter for restructuring [the institution of marriage] by judicial legislation.” Id. at 186. As to the Equal Protection Clause, the court ruled that “[t]here is no irrational or invidious discrimination” because “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Id. at 187.
-15-

The Supreme Court has held that “summary dismissals are, of course, to be taken as rulings on the merits, in the sense that they rejected the specific challenges presented in the statement of jurisdiction and left undisturbed the judgment appealed from.” Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 477 n.20 (1979) (quotation and citation omitted). Summary dismissals
do not, however, have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits. A summary dismissal of an appeal represents no more than a view that the judgment appealed from was correct as to those federal questions raised and necessary to the decision. It does not, as we have continued to stress, necessarily reflect our agreement with the opinion of the court whose judgment is appealed. Id. (citations omitted); see Neely v. Newton, 149 F.3d 1074, 1079 (10th Cir. 1998) (“The Supreme Court has cautioned that for purposes of determining the binding effect of a summary action, the action should not be interpreted as adopting the rationale of the lower court, but rather as affirming only the judgment of that court.”). “Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). And “[t]hey do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Id. “[I]f the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344 (1975)
-16-

(quotation omitted).2 The district court concluded that “doctrinal developments” had
superseded Baker. Kitchen, 961 F. Supp. 2d at 1194-95. We agree.
Two landmark decisions by the Supreme Court have undermined the notion that
the question presented in Baker is insubstantial. Baker was decided before the Supreme
Court held that “intimate conduct with another person . . . can be but one element in a
personal bond that is more enduring. The liberty protected by the Constitution allows
homosexual persons the right to make this choice.” Lawrence v. Texas, 539 U.S. 558,
567 (2003). The decision in Baker also pre-dates the Court’s opinion in Windsor.
Several courts held prior to Windsor that Baker controlled the same-sex marriage
question. See, e.g., Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1,
8 (1st Cir. 2012) (“Baker does not resolve our own case but it does limit the arguments to
ones that do not presume or rest on a constitutional right to same-sex marriage.”);
Donaldson v. State, 292 P.3d 364, 371 n.5 (Mont. 2012) (“The U.S. Supreme Court’s
action in Baker has been described as binding precedent.” (citations omitted)). However,
since Windsor was decided, nearly every federal court to have considered the issue—
including the district court below—has ruled that Baker does not control. See Wolf v.
2 Utah argues that “doctrinal developments” are insufficient to undermine a summary disposition, asserting that the Court overruled Hicks in Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989), in stating that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Id. at 484; see also Conover v. Aetna U.S. Healthcare, Inc., 320 F.3d 1076, 1078 n.2 (10th Cir. 2003) (“[T]he Supreme Court instructed us to avoid concluding its more recent cases have, by implication, overruled an earlier precedent.” (quotation omitted)). But both of these cases dealt with opinions on the merits. We do not read them as overruling the doctrinal developments rule as to summary dispositions.
-17-

Walker, No. 14-cv-64-bbc, 2014 U.S. Dist. LEXIS 77125, at *10-18 (W.D. Wis. June 6, 2014); Whitewood v. Wolf, No. 1:13-cv-1861, 2014 U.S. Dist. LEXIS 68771, at *14-18 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber, Nos. 6:13-cv-01834-MC & 6:13-cv02256-MC, 2014 U.S. Dist. LEXIS 68171, at *7 n.1 (D. Or. May 19, 2014); Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 U.S. Dist. LEXIS 66417, at *28 (D. Idaho May 13, 2014); DeBoer v. Snyder, No. 12-CV-10285, 2014 U.S. Dist. LEXIS 37274, at *46 n.6 (E.D. Mich. Mar. 21, 2014); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 U.S. Dist. LEXIS 26236, at *28-29 (W.D. Tex. Feb. 26, 2014); Bostic v. Rainey, 970 F. Supp. 2d 456, 470 (E.D. Va. 2014); McGee v. Cole, No. 3:13-24068, 2014 U.S. Dist. LEXIS 10864, at *32 (S.D.W. Va. Jan. 29, 2014); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1277 (N.D. Okla. 2014); Kitchen, 961 F. Supp. 2d at 1195. But see Merritt v. Att’y Gen., No. 13-215-BAJ-SCR, 2013 U.S. Dist. LEXIS 163235, at *2 (M.D. La. Oct. 2, 2013), magistrate judge report adopted by 2013 U.S. Dist. LEXIS 162583 (M.D. La. Nov. 13, 2013) (citing Baker as controlling in dismissing pro se complaint, but not considering whether doctrinal developments had undermined Baker).
We acknowledge that the question presented in Windsor is not identical to the question before us. DOMA interfered with New York’s decision “that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons,” a decision designed to “correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.” Windsor, 133 S. Ct. at 2689. The “State used its historic and essential authority to define the marital relation in this way,” and “its role and its
-18-

power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.” Id. at 2692. Because DOMA used this “state-defined class for the opposite purpose—to impose restrictions and disabilities,” the Court framed the dispositive question as “whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” Id. Although it is true that Windsor resolved tension between a state law permitting same-sex marriage and a federal non-recognition provision, the Court’s description of the issue indicates that its holding was not solely based on the scope of federal versus state powers.
Appellants stress the presence of these federalism concerns in Windsor, which, as the Chief Justice noted in dissent, “come into play on the other side of the board in . . . cases about the constitutionality of state” bans on same-sex marriage. Id. at 2697 (Roberts, C.J., dissenting). The Windsor majority stated repeatedly that the regulation of marriage has traditionally been a state function. See id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” (quotation and citation omitted)); id. (“The states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . .” (quotation and alterations omitted)); id. (“Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”). Appellants urge us to conclude that the “principles of federalism that
-19-

Windsor would later reaffirm” require us to adhere to the Court’s summary affirmance in
Baker.
However, the Windsor Court also explained that the federal government “in
enacting discrete statutes, can make determinations that bear on marital rights and
privileges.” Id. at 2690. For example, Congress can preempt state marriage laws dealing
with insurance proceeds in a federal program, reject sham marriages for immigration
purposes even if the marriage is valid under state law, and recognize common-law
marriage for the purpose of establishing income-based Social Security benefit eligibility
regardless of state law. Id. The Windsor Court concluded it was “unnecessary to decide
whether” DOMA “is a violation of the Constitution because it disrupts the federal
balance.” Id. at 2692.
Rather than relying on federalism principles, the Court framed the question
presented as whether the “injury and indignity” caused by DOMA “is a deprivation of an
essential part of the liberty protected by the Fifth Amendment.” Id. And the Court
answered that question in the affirmative:
The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
Id. at 2695 (citations omitted).
“The history of DOMA’s enactment and its own text,” the Court concluded,
“demonstrate that interference with the equal dignity of same-sex marriages, a dignity -20-

conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.” Id. at 2693. DOMA “impose[d] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages . . . .” Id. The statute “undermine[d] both the public and private significance of state-sanctioned same-sex marriages” by telling “those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.” Id. at 2694. And it “humiliate[d] tens of thousands of children now being raised by same-sex couples” by making “it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. Because DOMA’s “differentiation demeans [same-sex] couple[s], whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, and whose relationship[s] the State has sought to dignify,” the Court held that the statute violated the Fifth Amendment. Windsor, 133 S. Ct. at 2694-95.
The Windsor majority expressly cabined its holding to state-recognized marriages, id. at 2696, and is thus not directly controlling. But the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored. This is particularly true with respect to plaintiffs Archer and Call, who seek recognition by Utah of a marriage that is valid in the state where it was performed. More generally, all six plaintiffs seek equal dignity for their marital aspirations. All claim that the state’s differential treatment of them as compared to opposite-sex couples demeans and undermines their relationships and their personal autonomy. Although reasonable judges may disagree on the merits of the same-sex marriage question, we think it is clear that
-21-

doctrinal developments foreclose the conclusion that the issue is, as Baker determined, wholly insubstantial.3
IV
We turn now to the merits of the issue before us. We must first decide whether the
liberty interest protected in this case includes the right to marry, and whether that right is
limited, as appellants contend, to those who would wed a person of the opposite sex.
The district court granted summary judgment in favor of the plaintiffs. We review
a grant of summary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d
1171, 1179 (10th Cir. 2009). A party is entitled to summary judgment only if, viewing
the evidence in the light most favorable to the non-moving party, the movant is entitled to
judgment as a matter of law. Id.; see Fed. R. Civ. P. 56(a).
“We review the decision to grant a permanent injunction for abuse of discretion.”
FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009). To obtain a permanent
injunction, a plaintiff must show: “(1) actual success on the merits; (2) irreparable harm
unless the injunction is issued; (3) the threatened injury outweighs the harm that the
injunction may cause the opposing party; and (4) the injunction, if issued, will not
3 Some have suggested that Baker implicates a court’s subject matter jurisdiction. See, e.g., Bostic, 970 F. Supp. 2d at 469 (“Defendants here contend that because the Supreme Court found a substantial federal question lacking in Baker, this Court is precluded from exercising jurisdiction.”). Given our conclusion that subsequent doctrinal developments have rendered Baker no longer binding, such an assertion necessarily fails. We further note that because plaintiffs have filed plausible federal constitutional claims pursuant to 42 U.S.C. § 1983, which specifically allows such claims to be filed in federal court, they have presented a federal question sufficient to confer subject matter jurisdiction. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005) (28 U.S.C. § 1331 “is invoked by and large by plaintiffs pleading a cause of action created by federal law (e.g., claims under 42 U.S.C. § 1983)”).
-22-

adversely affect the public interest.” Sw. Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir. 2009). Because appellants have challenged only the merits aspect of the district court’s decision, we do not consider the remaining factors. See Bronson, 500 F.3d at 1104 (“[T]he omission of an issue in an opening brief generally forfeits appellate consideration of that issue.”).
A “[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” Planned Parenthood v. Casey, 505 U.S. 833, 846-47 (1992) (quotation omitted). The doctrine of substantive due process extends protections to fundamental rights “in addition to the specific freedoms protected by the Bill of Rights.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997); see also Casey, 505 U.S. at 848 (“Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.”). To qualify as “fundamental,” a right must be “objectively, deeply rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Glucksberg, 521 U.S. at 720-21 (quotations omitted).
1 There can be little doubt that the right to marry is a fundamental liberty. The marital relationship is
-23-

older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Griswold v. Connecticut, 381 U.S. 479, 486 (1965). The Court has long recognized that marriage is “the most important relation in life.” Maynard v. Hill, 125 U.S. 190, 205 (1888). “Without doubt,” the liberty protected by the Fourteenth Amendment includes the freedom “to marry, establish a home[,] and bring up children.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see also Loving v. Virginia, 388 U.S. 1, 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”). Appellants contend that these precedents and others establish only that oppositesex marriage is a fundamental right. They highlight the Court’s admonition to undertake a “careful description of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721 (quotation omitted). “This approach tends to rein in the subjective elements that are necessarily present in due-process judicial review.” Id.; see also Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (courts must exercise “utmost care” and be “reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended”). A right to same-sex marriage cannot be deeply rooted in our tradition, appellants argue, because “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” Windsor, 133 S. Ct. at 2689; see also id. at 2715 (Alito, J.,
-24-

dissenting) (“In this country, no State permitted same-sex marriage until the
Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-
sex couples violated the State Constitution.”).
But “the right to marry is of fundamental importance for all individuals.”
Zablocki v. Redhail, 434 U.S. 374, 384 (1978). In numerous cases, the Court has
discussed the right to marry at a broader level of generality than would be consistent with
appellants’ argument. The Loving Court concluded that a state statute voiding marriages
between white and non-white participants violated the Due Process Clause. 388 U.S. at 4
n.3, 12.
Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Id. at 12 (quotation and citation omitted).
As the Court later explained, “[m]arriage is mentioned nowhere in the Bill of
Rights and interracial marriage was illegal in most States in the 19th century, but the
Court was no doubt correct in finding it to be an aspect of liberty protected against state
interference by the substantive component of the Due Process Clause in Loving v.
Virginia.” Casey, 505 U.S. at 847-48 (citation omitted); see also Lawrence, 539 U.S. at
577-78 (“[N]either history nor tradition could save a law prohibiting miscegenation from
-25-

constitutional attack.” (quotation omitted)). Thus the question as stated in Loving, and as characterized in subsequent opinions, was not whether there is a deeply rooted tradition of interracial marriage, or whether interracial marriage is implicit in the concept of ordered liberty; the right at issue was “the freedom of choice to marry.” Loving, 388 U.S. at 12.
Similarly, Zablocki considered an equal protection challenge to a state law barring individuals in arrearage of child support obligations from marrying. Because “the right to marry is of fundamental importance” and “the classification at issue . . . significantly interfere[d] with the exercise of that right,” the Court determined that “critical examination of the state interests advanced in support of the classification [wa]s required.” Zablocki, 434 U.S. at 383 (quotation omitted). It cautioned that not “every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” Id. at 386. But the statute at issue was impermissible because it constituted a “serious intrusion into [the] freedom of choice in an area in which we have held such freedom to be fundamental” and could not “be upheld unless it [wa]s supported by sufficiently important state interests and [wa]s closely tailored to effectuate only those interests.” Id. at 387, 388. The right at issue was characterized as the right to marry, not as the right of child-support debtors to marry.
2
-26-

It is true that both Loving and Zablocki involved opposite-sex couples. Such pairings, appellants remind us, may be naturally procreative—a potentially meaningful consideration given that the Court has previously discussed marriage and procreation together. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the race.”); Carey v. Population Servs. Int’l, 431 U.S. 678, 684-85 (1977) (“[I]t it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education. The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices.” (quotation omitted)).
But the Court has also described the fundamental right to marry as separate from the right to procreate, including in Glucksberg itself, the case upon which appellants’ fundamental-right argument turns. See Glucksberg, 521 U.S. at 720 (describing Loving as a right-to-marry case and Skinner as a right-to-procreate case); accord M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (same). Appellants’ contention that the right to marriage is fundamental because of its procreative potential is also undercut by Turner v. Safley, 482 U.S. 78 (1987).
In Turner, the Court invalidated a prison rule barring inmates from marrying unless a prison superintendent found compelling reasons for the marriage. Id. at 81-82. “[G]enerally only a pregnancy or the birth of an illegitimate child would be considered a compelling reason.” Id. at 82. Thus, the challenged rule operated to bar inmates who had
-27-

not procreated from marrying. The Court began its analysis of the marriage restriction by dismissing the argument that “the rule does not deprive prisoners of a constitutionally protected right” even though “the decision to marry is a fundamental right” because “a different rule should obtain in a prison forum.” Id. at 94-95 (quotation and ellipses omitted). Despite the “substantial restrictions [imposed] as a result of incarceration,” the Court concluded, inmates could not be denied the fundamental right of marriage simply because of their imprisonment. Id. at 95. The right at issue was never framed as “inmate marriage”; the Court simply asked whether the fact of incarceration made it impossible for inmates to benefit from the “important attributes of marriage.” Id.; see Latta, 2014 U.S. Dist. LEXIS 66417, at *37 (“Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the ‘dead-beat dad’s right to marry.’ Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.”); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 982 n.10 (S.D. Ohio 2013) (“In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Supreme Court consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’”).
The Turner Court’s description of the “important attributes of marriage [that] remain . . . after taking into account the limitations imposed by prison life,” 482 U.S. at 95, is relevant to the case at bar:
-28-

First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a pre-condition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
Id. at 95-96. The Court ruled that “these remaining elements are sufficient to form a
constitutionally protected marital relationship in the prison context” even under the
“reasonable relationship test” applicable to prison regulations. Id. at 96-97.4
4 The Court distinguished its prior summary affirmance of Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973), which upheld a prohibition on marriage for inmates serving a life sentence. Turner, 482 U.S. at 96; see Butler v. Wilson, 415 U.S. 953 (1974) (per curiam) (summary affirmance). Appellants argue that this distinction shows that only those individuals who can procreate have a fundamental right to marry, but the Turner Court did not rely on procreation in distinguishing the summary affirmance in Butler, holding instead that “importantly, denial of the right was part of the punishment for crime” and citing a concurrence for the proposition that the “asserted governmental interest of punishing crime [was] sufficiently important to justify deprivation of [the] right.” 482 U.S. at 96. We acknowledge that the three-judge panel in Johnson did mention the impossibility of a life-incarcerated prisoner participating in the “begetting and raising of children,” which is described (along with “cohabitation” and “sexual intercourse”) as among “the aspects of marriage which make it one of the basic civil rights of man.” 365 F. Supp. at 380. But “[b]ecause a summary affirmance is an affirmance of the judgment only, the rationale of the affirmance may not be gleaned solely from the opinion below.” Turner, 482 U.S. at 96 (quotation omitted). We thus cannot read the summary affirmance in Butler as standing for the proposition that procreation is an essential aspect of the marriage relationship.
-29-

As the Turner opinion highlights, the importance of marriage is based in great measure on “personal aspects” including the “expression[] of emotional support and public commitment.” Id. at 95-96. This conclusion is consistent with the Court’s other pronouncements on the freedom to marry, which focus on the freedom to choose one’s spouse. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); see also Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (plurality opinion)5 (“[T]he regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.”); Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) (“[T]he Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse . . . .”); Carey, 431 U.S. at 684-85 (“[A]mong the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage . . . .” (quotation omitted)). The Turner Court also highlighted the role of marriage in allowing its participants to gain access to legal and financial benefits they would otherwise be denied. 482 U.S. at 96.
We must reject appellants’ efforts to downplay the importance of the personal elements inherent in the institution of marriage, which they contend are “not the principal
5 Hodgson was a splintered decision. Justice Stevens delivered the opinion of the Court as to certain portions of his writing, but the quotation that follows is from a section joined only by Justice Brennan.
-30-

interests the State pursues by regulating marriage.” Rather than being “[m]utually
exclusive” of the procreative potential of marriage, these freedoms—to choose one’s
spouse, to decide whether to conceive or adopt a child, to publicly proclaim an enduring
commitment to remain together through thick and thin—reinforce the childrearing family
structure. Further, such freedoms support the dignity of each person, a factor emphasized
by the Windsor Court. See 133 S. Ct. at 2692 (“The State’s decision to give this class of
persons the right to marry conferred upon them a dignity and status of immense
import.”); id. (New York’s “decision enhanced the recognition, dignity, and protection of
the class”); id. (“By its recognition of the validity of same-sex marriages performed in
other jurisdictions and then by authorizing same-sex unions and same-sex marriages,
New York sought to give further protection and dignity to that bond.”); id. (plaintiff’s
relationship was “deemed by the State worthy of dignity in the community equal with all
other marriages”).
Of course, the Windsor decision dealt with federal recognition of marriages
performed under state law. But with respect to plaintiffs Archer and Call, who were
married in Iowa and whose marriage Utah will not recognize under Amendment 3, the
analogy to Windsor is particularly apt. Amendment 3’s non-recognition provision, like
DOMA,
contrives to deprive some couples married under the laws of [another] State, but not other couples, of both rights and responsibilities. . . . By this dynamic [Amendment 3] undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [Utah’s] recognition. . . . The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.
-31-

Id. at 2694. In light of Windsor, we agree with the multiple district courts that have held that
the fundamental right to marry necessarily includes the right to remain married. See Latta, 2014 U.S. Dist. LEXIS 66417, at *40 (“Idaho’s Marriage Laws render the Plaintiff couples legal strangers, stripping them of the choice to marry or remain married in the state they call home. Therefore, Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry.”); Henry v. Himes, No. 1:14-cv-129, 2014 U.S. Dist. LEXIS 51211, at *22 (S.D. Ohio Apr. 14, 2014) (“There are a number of fundamental rights and/or liberty interests protected by the Due Process clause that are implicated by the marriage recognition ban, including the right to marry, the right to remain married, and the right to parental autonomy.” (footnote omitted)); De Leon, 2014 U.S. Dist. LEXIS 26236, at *66 (“[B]y declaring existing, lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process.”); Obergefell, 962 F. Supp. 2d at 978 (“The right to remain married is . . . properly recognized as one that is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution.”).6
6 Appellants contend that § 2 of DOMA forecloses any challenge to the nonrecognition provisions of Amendment 3. However, they raise this issue only in a footnote and in conclusory fashion. See In re C.W. Mining Co., 740 F.3d 548, 564 (10th Cir. 2014) (“[A]rguments raised in a perfunctory manner, such as in a footnote, are waived.” (quotation and emphasis omitted)). Because we conclude that marriage is a fundamental right and the state’s arguments for restricting it to opposite-sex couples fail strict scrutiny, appellants’ arguments regarding § 2 of DOMA also fail on the merits.
-32-

And although we acknowledge that state recognition serves to “enhance[]” the
interests at stake, Windsor, 133 S. Ct. at 2692, surely a great deal of the dignity of same-
sex relationships inheres in the loving bonds between those who seek to marry and the
personal autonomy of making such choices. As the Court held in Lawrence, several
years before discussing the state recognition issues present in Windsor,
adults may choose to enter upon [an intimate] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
539 U.S. at 567.
Appellants’ assertion that the right to marry is fundamental because it is linked to
procreation is further undermined by the fact that individuals have a fundamental right to
choose against reproduction. “If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear or beget a
child.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis omitted); see also
Griswold, 381 U.S. at 485-86 (recognizing right of married individuals to use
contraception).
The Court has repeatedly referenced the raising of children—rather than just their
creation—as a key factor in the inviolability of marital and familial choices. See, e.g.,
Congress cannot authorize a state to violate the Fourteenth Amendment. See Graham v. Richardson, 403 U.S. 365, 382 (1971) (“Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.”).
-33-

Carey, 431 U.S. at 685 (“child rearing and education” decisions protected from “unjustified government interference” (quotation omitted)); Moore v. City of East Cleveland, 431 U.S. 494, 505 (1977) (plurality opinion) (“[d]ecisions concerning child rearing” have been “recognized as entitled to constitutional protection”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925) (discussing “the liberty of parents and guardians to direct the upbringing and education of children under their control”); Meyer, 262 U.S. at 399 (liberty protected by the Due Process Clause includes right “to marry, establish a home[,] and bring up children”). Although cohabitating same-sex couples are prohibited from jointly adopting children under Utah law as a result of the same-sex marriage ban, Utah Code § 78B-6-117(3), the record shows that nearly 3,000 Utah children are being raised by same-sex couples. Thus childrearing, a liberty closely related to the right to marry, is one exercised by same-sex and opposite-sex couples alike, as well as by single individuals.7
Children of same-sex couples may lack a biological connection to at least one parent, but “biological relationships are not [the] exclusive determina[nt] of the existence of a family.” Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843 (1977). “[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promoting a way of life through the instruction
7 Utah also permits adoption by unmarried, non-cohabitating individuals if “it is in the best interests of the child to place the child with a single person.” Utah Code § 78B-6-117(4)(e). But any person who is cohabitating “in a relationship that is not a legally valid and binding marriage under the laws of this state,” § 78B-6-117(3), may not adopt a child, with no explicit exception for the child’s best interest.
-34-

of children.” Id. at 844 (quotation omitted); see also Utah Code § 78B-6-139 (granting adoptive parents all rights and duties of biological parents). As the Court in Windsor held, restrictions on same-sex marriage “humiliate[] tens of thousands of children now being raised by same-sex couples” and “make[] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. at 2694. Such statutes “bring[] financial harm to children of same-sex couples . . . raise[] the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses” and “den[y] or reduce[] benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.” Id. at 2695. These laws deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity. Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers.
Appellants urge us to conclude that a court cannot determine whether there is a right to marriage without first defining the institution. They also say that the term “marriage” by its nature excludes same-sex couples. Glucksberg requires us to develop a “careful description of the asserted fundamental liberty interest,” relying on “[o]ur Nation’s history, legal traditions, and practices [to] provide the crucial guideposts for responsible decisionmaking.” 521 U.S. at 721 (quotation omitted). But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex. As we have discussed, the Supreme Court has traditionally
-35-

described the right to marry in broad terms independent of the persons exercising it. The Court’s other substantive due process cases similarly eschew a discussion of the rightholder in defining the scope of the right. In Glucksberg, for example, the Court framed the question presented as “whether the ‘liberty’ specially protected in the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.” 521 U.S. at 723 (footnote omitted). The Court’s formulation implicitly rejected respondents’ framing of the claimed liberty as exercised by a specific class of persons: “Whether the Fourteenth Amendment’s guarantee of liberty protects the decision of a mentally competent, terminally ill adult to bring about impending death in a certain, humane, and dignified manner.” Br. of Resp’t at i, Glucksberg, 521 U.S. 702 (No. 96-110) (emphasis added).
Prior to the Windsor decision, several courts concluded that the well-established right to marry eo ipso cannot be exercised by those who would choose a spouse of the same sex. See, e.g., Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1094-98 (D. Haw. 2012) (“[T]he right at issue here is an asserted new right to same-sex marriage.”); Andersen v. King Cnty., 138 P.3d 963, 979 (Wash. 2006) (en banc) (“Plaintiffs have not established that at this time the fundamental right to marry includes the right to marry a person of the same sex.”); Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006) (“[B]y defining marriage as it has, the New York Legislature has not restricted the exercise of a fundamental right.”). We nonetheless agree with plaintiffs that in describing the liberty interest at stake, it is impermissible to focus on the identity or class-membership of the individual exercising the right. See De Leon, 2014 U.S. Dist. LEXIS 26236, at *58-59 (a
-36-

state “cannot define marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry, nor may it deny the same status and dignity to each citizen’s decision” (quotations omitted)). “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.” Hernandez, 855 N.E.2d at 24 (Kaye, C.J., dissenting); see also Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 972-73 (Mass. 2003) (Greaney, J., concurring) (“To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question . . . .”). Plaintiffs seek to enter into legally recognized marriages, with all the concomitant rights and responsibilities enshrined in Utah law. They desire not to redefine the institution but to participate in it.
Appellants’ assertion that plaintiffs are excluded from the institution of marriage by definition is wholly circular. Nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages. See Bostic, 970 F. Supp. 2d at 473 (“Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships.”). Appellants’ reliance on the modifier “definitional” does not serve a meaningful function in this context. To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so. One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage. But “neither history nor tradition could save a law prohibiting miscegenation
-37-

from constitutional attack.” Lawrence, 539 U.S. at 577-78 (quotation omitted); see also Williams v. Illinois, 399 U.S. 235, 239 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack . . . .”); In re Marriage Cases, 183 P.3d 384, 451 (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.”), superseded by constitutional amendment as stated in Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009).
Our conclusion that we are not required to defer to Utah’s characterization of its ban on same-sex marriage as a “definition” is reinforced by the Court’s opinion in Windsor. Section 3 of DOMA, which the Court invalidated, “amend[ed] the Dictionary Act . . . of the United States Code to provide a federal definition of ‘marriage’ and ‘spouse.’” Windsor, 133 S. Ct. at 2683. In relevant part, the statute read: “‘[T]he word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’” Id. (quoting 1 U.S.C. § 7). Appellants repeatedly assert that Amendment 3 simply defines marriage, at one point contrasting “the traditional definition of marriage” with “the anti-miscegenation laws invalidated in Loving.” They contend that “Utah’s marriage laws merely define marriage within its borders.” The Court’s holding in Windsor demonstrates that a provision labeled a “definition” is not immune from constitutional scrutiny. We see no reason to allow Utah’s invocation of its power to “define the marital relation,” Windsor, 133 S. Ct. at 2692, to become “a talisman, by
-38-

whose magic power the whole fabric which the law had erected . . . is at once dissolved,” Bank of the U.S. v. Dandridge, 25 U.S. (12 Wheat.) 64, 113 (1827) (Marshall, C.J., dissenting).
Whether a state has good reason to exclude individuals from the marital relationship based on a specific characteristic certainly comes into play in determining if the classification survives the appropriate level of scrutiny. Even when a fundamental right is impinged, “[s]trict scrutiny is not ‘strict in theory, but fatal in fact.’” Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237 (1995)). But the challenged classification cannot itself define the scope of the right at issue. The judiciary’s “obligation is to define the liberty of all.” Casey, 505 U.S. at 850. Although courts may be tempted “to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified . . . . such a view would be inconsistent with our law.” Id. at 847 (citation omitted). “A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996).
3 The Supreme Court’s sexual orientation jurisprudence further precludes us from defining the fundamental right at issue in the manner sought by the appellants. In Lawrence, the Court struck down as violative of due process a statute that prohibited sexual conduct between individuals of the same sex. The Court reversed Bowers v.
-39-

Hardwick, 478 U.S. 186 (1986), which in upholding a similar statute had framed the question as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id. at 190. The Lawrence Court held that this framing “fail[ed] to appreciate the extent of the liberty at stake” and “misapprehended the claim of liberty there presented to it.” 539 U.S. at 567.
The Court acknowledged that “for centuries there have been powerful voices to condemn homosexual conduct as immoral,” but held that its obligation was “to define the liberty of all, not to mandate our own moral code.” Id. at 571 (quotation omitted). “[B]efore 1961 all 50 States had outlawed sodomy,” yet “[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Id. at 572 (quotation omitted). The Court firmly rejected Bowers’ characterization of the liberty at issue: “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Id. at 567.
The Court’s rejection of the manner in which Bowers described the liberty interest involved is applicable to the framing of the issue before us. There was clearly no history of a protected right to “homosexual sodomy,” just as there is no lengthy tradition of same-sex marriage. But the Lawrence opinion indicates that the approach urged by appellants is too narrow. Just as it was improper to ask whether there is a right to engage
-40-

in homosexual sex, we do not ask whether there is a right to participate in same-sex marriage.8
We must also note that Lawrence itself alluded to marriage, stating that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” 539 U.S. at 574. The Court quoted Casey’s holding that matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment” and ruled that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Lawrence, 539 U.S. at 574 (quotation omitted).
The drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Id. at 579. A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the
8 In Seegmiller v. Laverkin City, 528 F.3d 762 (10th Cir. 2008), we concluded that Lawrence did not announce a fundamental right “to engage in private sexual conduct.” Id. at 771. As explained above, however, Lawrence did expressly reject Bowers’ narrow, class-based framing of the liberty interest at issue.
-41-

district court eloquently explained, “it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.” Kitchen, 961 F. Supp. 2d at 1203. Consistent with our constitutional tradition of recognizing the liberty of those previously excluded, we conclude that plaintiffs possess a fundamental right to marry and to have their marriages recognized.
B The Due Process Clause “forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993) (quotation and emphasis omitted). By the same token, if a classification “impinge[s] upon the exercise of a fundamental right,” the Equal Protection Clause requires “the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17 (quotation omitted). Having persuaded us that the right to marry is a fundamental liberty, plaintiffs will prevail on their due process and equal protection claims unless appellants can show that Amendment 3 survives strict scrutiny. A provision subject to strict scrutiny “cannot rest upon a generalized assertion as to the classification’s relevance to its goals.” Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989). “The purpose of the narrow tailoring requirement is to ensure that the means chosen fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate.” Grutter, 539 U.S. at 333 (quotation
-42-

omitted). Only “the most exact connection between justification and classification” survives. Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (quotation omitted).
Appellants advance four justifications for Amendment 3. They contend it furthers the state’s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction”; and (4) “accommodating religious freedom and reducing the potential for civic strife.”
1 We will assume that the first three rationales asserted by appellants are compelling. These justifications falter, however, on the means prong of the strict scrutiny test. Each rests on a link between marriage and procreation. Appellants contend that Utah has “steadfastly sought to reserve unique social recognition for man-woman marriage so as to guide as many procreative couples as possible into the optimal, conjugal childrearing model”; that “children suffer when procreation and childrearing occur outside stable man-woman marriages”; and that “[b]y providing special privileges and status to couples that are uniquely capable of producing offspring without biological assistance from third parties, the State sends a clear if subtle message to all of its citizens that natural reproduction is healthy, desirable and highly valued.” (Emphasis omitted.) The common thread running through each of appellants’ first three arguments is the claim that allowing same-sex couples to marry “would break the critical conceptual link between marriage and procreation.”
-43-

The challenged restrictions on the right to marry and on recognition of otherwise valid marriages, however, do not differentiate between procreative and non-procreative couples. Instead, Utah citizens may choose a spouse of the opposite sex regardless of the pairing’s procreative capacity. The elderly, those medically unable to conceive, and those who exercise their fundamental right not to have biological children are free to marry and have their out-of-state marriages recognized in Utah, apparently without breaking the “conceptual link between marriage and procreation.” The only explicit reference to reproduction in Utah’s marriage law is a provision that allows first cousins to marry if “both parties are 65 years of age or older; or . . . if both parties are 55 years of age or older, upon a finding by the district court . . . that either party is unable to reproduce.” Utah Code § 30-1-1(2). This statute thus extends marriage rights to certain couples based on a showing of inability to reproduce.9
Such a mismatch between the class identified by a challenged law and the characteristic allegedly relevant to the state’s interest is precisely the type of imprecision prohibited by heightened scrutiny. See Shaw v. Hunt, 517 U.S. 899, 908 (1996) (“The means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.” (quotation and alteration omitted)). Utah’s ban on polygamy, for example, is justified by arguments against polygamy. See Utah Const. art. III (“[P]olygamous or plural marriages are forever prohibited.”); see also Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir. 1985) (concluding that “the State is
9 We do not express any view on the constitutionality of this provision. Instead, we note the inconsistency between the message sent by this statute and the message appellants claim the same-sex marriage ban conveys.
-44-

justified, by a compelling interest, in upholding and enforcing its ban on plural marriage” based on its “commitment to a system of domestic relations based exclusively upon the practice of monogamy” which is “inextricably woven into the fabric of our society” and “the bedrock upon which our culture is built” (quotation omitted)). Similarly, barring minors from marriage may be justified based on arguments specific to minors as a class. See Utah Code § 30-1-9 (minors may not marry absent parental consent); see also Ginsberg v. New York, 390 U.S. 629, 638 (1968) (“[E]ven where there is an invasion of protected freedoms the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” (quotation omitted)); Lee v. Gaufin, 867 P.2d 572, 578 (Utah 1993) (“[Minors’] legal incapacity is based on fundamental differences between adults and minors with respect to their physical, intellectual, psychological, and judgmental maturity.”). But appellants fail to advance any argument against same-sex marriage that is based specifically on its alleged intrinsic ills.
Instead of explaining why same-sex marriage qua same-sex marriage is undesirable, each of the appellants’ justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples. Same-sex marriage must be banned, appellants argue, because same-sex couples are not naturally procreative. But the state permits many other types of non-procreative couples to wed. See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples . . . ? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”). Same-sex marriage
-45-

cannot be allowed, appellants assert, because it is better for children to be raised by biological parents. Yet adoptive parents, who have the full panoply of rights and duties of biological parents, are free to marry. See Utah Code § 78B-6-139 (adoptive parents have same rights and duties). As are opposite-sex couples who choose assisted reproduction. See §§ 78B-15-701 to 707 (providing rules for parental rights in cases of assisted reproduction); §§ 78B-15-801 to 809 (providing rules governing gestational agreements).
Several recent district court decisions have rejected nearly identical state attempts to justify same-sex marriage bans based on procreative concerns. See Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (“Procreative potential is not a marriage prerequisite.”); Latta, 2014 U.S. Dist. LEXIS 66417, at *68 (“Idaho does not condition marriage licenses or marital benefits on heterosexual couples’ ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate.”); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *37 (“The prerequisites for obtaining a marriage license under Michigan law do not include the ability to have children . . . .”); De Leon, 2014 U.S. Dist. LEXIS 26236, at *44 (“This procreation rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.”); Bostic, 970 F. Supp. 2d. at 478-79 (“The ‘for-the-children’ rationale also fails because it would threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.”).
-46-

The Supreme Court has similarly eschewed such means-ends mismatches. For
example, in Bernal v. Fainter, 467 U.S. 216 (1984), the Court concluded that a Texas
statute prohibiting resident aliens from becoming notaries failed strict scrutiny. Id. at
227-28. The state argued that the provision was justified by the state’s interest in
licensing notaries familiar with state law. Id. at 227. But the Court rejected the state’s
attempt to justify a classification based on alienage with an explanation based on
knowledge:
[I]f the State’s concern with ensuring a notary’s familiarity with state law were truly compelling, one would expect the State to give some sort of test actually measuring a person’s familiarity with the law. The State, however, administers no such test. To become a notary public in Texas, one is merely required to fill out an application that lists one’s name and address and that answers four questions pertaining to one’s age, citizenship, residency, and criminal record . . . .
Id. (footnote and quotation omitted). Just as a state cannot justify an alienage
classification by reference to a separate characteristic such as familiarity with state law,
appellants cannot assert procreative potential as a basis to deny marriage rights to same-
sex couples. Under strict scrutiny, the state must justify the specific means it has chosen
rather than relying on some other characteristic that correlates loosely with the actual
restriction at issue.
Utah law sanctions many marriages that share the characteristic—inability to
procreate—ostensibly targeted by Amendment 3. The absence of narrow tailoring is
often revealed by such under-inclusiveness. In Zablocki, the state attempted to defend its
prohibition on marriage by child-support debtors on the ground that the statute
“prevent[ed] the applicants from incurring new support obligations.” 434 U.S. at 390. -47-

“But the challenged provisions,” the Court explained, “are grossly underinclusive with
respect to this purpose, since they do not limit in any way new financial commitments by
the applicant other than those arising out of the contemplated marriage.” Id. Similarly,
in Eisenstadt, the Court rejected the argument that unmarried individuals might be
prohibited from using contraceptives based on the view that contraception is immoral.
See 405 U.S. at 452-54. The Court held that “the State could not, consistently with the
Equal Protection Clause, outlaw distribution to unmarried but not to married persons. In
each case the evil, as perceived by the State, would be identical, and the underinclusion
would be invidious.” Id. at 454; see also Jimenez v. Weinberger, 417 U.S. 628, 637
(1974) (provision of Social Security Act allowing certain illegitimate children benefits
under limited circumstances held impermissibly “underinclusive in that it conclusively
excludes some illegitimates in appellants’ subclass who are, in fact, dependent upon their
disabled parent” (quotation omitted)).
A state may not impinge upon the exercise of a fundamental right as to some, but
not all, of the individuals who share a characteristic urged to be relevant.
The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.
Eisenstadt, 405 U.S. at 454 (quoting Ry. Express Agency v. New York, 336 U.S. 106,
112-13 (1949) (Jackson, J., concurring)).
-48-

A hypothetical state law restricting the institution of marriage to only those who are able and willing to procreate would plainly raise its own constitutional concerns. See id. at 453 (“If the right of privacy means anything, it is the right of the 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.” (emphasis omitted)). That question is not before us, and we do not address it. We merely observe that a state may not satisfy the narrow tailoring requirement by pointing to a trait shared by those on both sides of a challenged classification.
Appellants suggest that banning all non-procreative individuals from marrying would be impracticable. But “the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system.” Gratz, 539 U.S. at 275 (quotation omitted). And the appellants provide no explanation for Utah Code § 30-11(2), which specifically allows a subset of non-procreative couples to marry. Such a law is irreconcilable with appellants’ arguments regarding Utah’s interest in marriage and procreation.
Among the myriad types of non-procreative couples, only those Utahns who seek to marry a partner of the same sex are categorically excluded from the institution of marriage. Only same-sex couples, appellants claim, need to be excluded to further the state’s interest in communicating the link between unassisted biological procreation and marriage. As between non-procreative opposite-sex couples and same-sex couples, we
-49-

can discern no meaningful distinction with respect to appellants’ interest in fostering biological reproduction within marriages.
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Extending the benefits and protections of a civil society to some but not all similarly situated families violates this critical guarantee.
2 Appellants argue that procreative couples must be channeled into committed relationships in order to promote the State’s interests in childbearing and optimal childrearing. This argument fails because the prohibition on same-sex marriage has an insufficient causal connection to the State’s articulated goals. It is urged upon us that permitting same-sex couples to marry would have farreaching and drastic consequences for Utah’s opposite-sex couples. Appellants contend that the recognition of same-sex marriage would result in a parade of horribles, causing: “parents to raise their existing biological children without the other biological parent” (emphasis omitted); “couples conceiving children without the stability that marriage would otherwise bring”; “a substantial decline in the public’s interest in marriage”; “adults to [forgo] or severely limit the number of their children based on concerns for their own convenience”; and “a busy or irresponsible parent to believe it’s appropriate to sacrifice his child’s welfare to his own needs for independence, free time, etc.” In some instances, courts “must accord substantial deference to the predictive judgments” of legislative authorities. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195
-50-

(1997) (“Turner II”) (quotation omitted).10 “Sound policymaking often requires
legislators to forecast future events and to anticipate the likely impact of these events
based on deductions and inferences for which complete empirical support may be
unavailable.” Turner I, 512 U.S. at 622. But even under more relaxed forms of scrutiny,
a challenged classification “must find some footing in the realities of the subject
addressed by the legislation” based on a “reasonably conceivable state of facts.” Heller
v. Doe ex rel. Doe, 509 U.S. 312, 320, 321 (1993) (quotation omitted).11
We emphatically agree with the numerous cases decided since Windsor that it is
wholly illogical to believe that state recognition of the love and commitment between
same-sex couples will alter the most intimate and personal decisions of opposite-sex
couples. As the district court held, “[t]here is no reason to believe that Amendment 3 has
any effect on the choices of couples to have or raise children, whether they are opposite-
sex couples or same-sex couples.” Kitchen, 961 F. Supp. 2d at 1212. This was the first
of several federal court decisions reaching the same conclusion. See Geiger, 2014 U.S.
10 It appears that the only cases in which the Supreme Court has deferred to the predictions of legislators in evaluating the constitutionality of their enactments have involved, at most, intermediate scrutiny. See City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion) (applying the “less stringent standard . . . for evaluating restrictions on symbolic speech” (quotation omitted)); Turner II, 520 U.S. at 213; Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (“Turner I”) (plurality opinion). These cases also consider circumstances in which lawmaking authorities made factual findings regarding the feared risks before they promulgated the challenged laws, see Erie, 529 U.S. at 297; Turner II, 520 U.S. at 191-225. Appellants have not directed us to any such findings.
11 Because we conclude that marriage is a fundamental right, we do not consider whether Amendment 3 passes muster under rational basis review. Similarly, we do not address whether Amendment 3 might be subject to heightened scrutiny on any alternative basis.
-51-

Dist. LEXIS 68171, at *43 (“[A]ny governmental interest in responsible procreation is not advanced by denying marriage to gay a[nd] lesbian couples. There is no logical nexus between the interest and the exclusion.”); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *40 (“Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.”); De Leon, 2014 U.S. Dist. LEXIS 26236, at *42-43 (“Defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families.”); Bostic, 970 F. Supp. 2d at 478 (“[R]ecognizing a gay individual’s fundamental right to marry can in no way influence whether other individuals will marry, or how other individuals will raise families.”); Bishop, 962 F. Supp. 2d at 1291 (“Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.”).
Appellants liken the recognition of same-sex marriage to another change in marriage law, arguing that there is “a compelling parallel between the unintended consequences of no-fault divorce, which harmed children by weakening marriage and fatherhood, and the harms that will likely result” from permitting same-sex couples to marry. We cannot accept appellants’ claim that allowing same-sex couples to marry is analogous to a law that permits married couples to divorce. The former causes an increase in the number of married individuals, whereas the latter decreases the number of marriages in a state. See Wolf, 2014 U.S. Dist. LEXIS 77125, at *117 (“[T]he no-fault divorce rules that defendants cite actually undermine their argument by showing that [the
-52-

state] already supports an ‘adult-centric’ notion of marriage to some extent by allowing easy divorce even when the couple has children.” (emphasis omitted)).
Setting aside the implausibility of the comparison, we observe that Utah has adopted precisely the no-fault divorce regime that appellants decry in their briefing. See Thronson v. Thronson, 810 P.2d 428, 431 n.3 (Utah Ct. App. 1991) (“Utah added ‘irreconcilable differences’ to its list of nine fault-based grounds [for divorce] in 1987.”); Haumont v. Haumont, 793 P.2d 421, 427 (Utah Ct. App. 1990) (irreconcilable differences subsection “is intended to be a no-fault provision”); see also Utah Code § 303-1(3)(h) (current location of irreconcilable differences provision). Utah’s adoption of one provision that it considers problematic with respect to the communicative function of marriage (no-fault divorce), but not another (same-sex marriage), undermines its claim that Amendment 3 is narrowly tailored to its desired ends. Through its no-fault divorce statute, Utah allows a spouse—the bedrock component of the marital unit—to leave his family whenever he wants and for whatever reason moves him. It is difficult to imagine how the State’s refusal to recognize same-sex marriage undercuts in any meaningful way a state message of support for marital constancy given its adoption of a divorce policy that conveys a message of indifference to marital longevity.
A state’s interest in developing and sustaining committed relationships between childbearing couples is simply not connected to its recognition of same-sex marriages. Regardless of whether some individuals are denied the right to choose their spouse, the same set of duties, responsibilities, and benefits set forth under Utah law apply to those naturally procreative pairings touted by appellants. We cannot imagine a scenario under
-53-

which recognizing same-sex marriages would affect the decision of a member of an opposite-sex couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a child. We agree with the district court that such decisions, among “the most intimate and personal . . . a person may make in a lifetime, choices central to personal dignity and autonomy,” Casey, 505 U.S. at 851, are unrelated to the government’s treatment of same-sex marriage. See Kitchen, 961 F. Supp. 2d at 1212. To the extent that they are related, the relation exists because the State of Utah has chosen to burden the ability of one class of citizens to make such intimate and personal choices. See Utah Code § 78B-6-117(3) (prohibiting adoption by “a person who is cohabitating in a relationship that is not a legally valid and binding marriage under the laws of the state” and thus forcing same-sex couples to choose between adoption and marriage).
3 Appellants also argue that Utah’s ban on same-sex marriage is justified by gendered parenting preferences. They contend that even for families that are not biologically connected, the state has an interest in limiting marriage to opposite-sex couples because “men and women parent children differently.” But a prohibition on same-sex marriage is not narrowly tailored toward the goal of encouraging gendered parenting styles. The state does not restrict the right to marry or its recognition of marriage based on compliance with any set of parenting roles, or even parenting quality. See Latta, 2014 U.S. Dist. LEXIS 66417, at *68 (“Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents.”); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *37 (“The prerequisites for
-54-

obtaining a marriage license under Michigan law do not include . . . a requirement to raise [children] in any particular family structure, or the prospect of achieving certain ‘outcomes’ for children.”); Bishop, 962 F. Supp. 2d at 1295 (“With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements.”). Instead, every same-sex couple, regardless of parenting style, is barred from marriage and every opposite-sex couple, irrespective of parenting style, is permitted to marry.
The state’s child custody regime also belies adherence to a rigidly gendered view of parents’ abilities. See § 30-3-10(1)(a) (“In determining any form of custody, including a change in custody, the court shall consider the best interests of the child without preference for either the mother or father solely because of the biological sex of the parent . . . .”). As with appellants’ asserted procreation rationale, we are offered no coherent explanation for the state’s decision to impose disabilities upon only one subclass of those sharing a claimed deficiency.
The Supreme Court has previously rejected state attempts to classify parents with such a broad brush. In Stanley v. Illinois, 405 U.S. 645 (1972), the Court considered the validity of a state law that made children of unwed parents wards of the state upon death of the mother. Id. at 646. The state defended this provision by asserting that “unmarried fathers can reasonably be presumed to be unqualified to raise their children.” Id. at 653. “But all unmarried fathers are not in this category; some are wholly suited to have custody of their children.” Id. at 654. Just as the state law at issue in Stanley “needlessly risk[ed] running roughshod over the important interests of both parent and child,” id. at
-55-

657, Amendment 3 cannot be justified by the impermissibly overbroad assumption that any opposite-sex couple is preferable to any same-sex couple. Cf. Skinner, 316 U.S. at 545 (“A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation, is lacking in the first principles of due process.”).
Appellants have retreated from any categorical conclusions regarding the quality of same-sex parenting. Although they presented to the district court voluminous scholarship addressing various parenting issues, they now take the position that the social science is unsettled. See Rule 28(j) Letter at 2, No. 13-4178 (10th Cir., filed Apr. 9, 2014) (acknowledging that appellants’ main scientific authority on this issue “cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements”). At oral argument, counsel for appellants stated that “the bottom line” regarding the consequences of same-sex parenting “is that the science is inconclusive.”
Although we assume that the State’s asserted interest in biological parenting is compelling, this assumption does not require us to accept appellants’ related arguments on faith. We cannot embrace the contention that children raised by opposite-sex parents fare better than children raised by same-sex parents—to the extent appellants continue to press it—in light of their representations to this court. Appellants’ only reasoning in this regard is that there might be advantages in one parenting arrangement that are lacking in the other. On strict scrutiny, an argument based only on pure speculation and conjecture cannot carry the day. See Wisconsin v. Yoder, 406 U.S. 205, 224 (1972) (striking down
-56-

state action on strict scrutiny where the argument for the interest was “highly speculative” and had “no specific evidence” to support it). Appellants’ tepid defense of their parenting theory further highlights the looseness of the fit between the State’s chosen means and appellants’ asserted end.
Against the State’s claim of uncertainty we must weigh the harm Amendment 3 currently works against the children of same-sex couples. See Obergefell, 962 F. Supp. 2d at 995 (same-sex marriage bans “harm[] the children of same-sex couples who are denied the protection and stability of having parents who are legally married”). If appellants cannot tell us with any degree of confidence that they believe opposite-sex parenting produces better outcomes on the whole—and they evidently cannot—they fail to justify this palpable harm that the Supreme Court has unequivocally condemned. The Windsor majority, stressing the same detrimental impacts of DOMA, explained that the refusal to recognize same-sex marriages brings “financial harm to children of same-sex couples” and makes “it even more difficult for the children [of same-sex couples] to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. at 2694, 2695.
Windsor thus indicates that same-sex marriage restrictions communicate to children the message that same-sex parents are less deserving of family recognition than other parents. See id. at 2696 (“DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”). Appellants rely heavily on their predictions that Amendment 3 will encourage adults to make various decisions that
-57-

benefit society. But regardless of the signals the law sends to adults, Amendment 3, like
DOMA, conveys a harmful message to the children of same-sex couples. These
collateral consequences further suggest that the fit between the means and the end is
insufficient to survive strict scrutiny. See Latta, 2014 U.S. Dist. LEXIS 66417, at *74
(same-sex marriage bans are “dramatically underinclusive” because they deny “resources
to children whose parents happen to be homosexual”); De Leon, 2014 U.S. Dist. LEXIS
26236, at *42 (“[F]ar from encouraging a stable environment for childrearing, [same sex
marriage bans] den[y] children of same-sex parents the protections and stability they
would enjoy if their parents could marry.”); Bostic, 970 F. Supp. 2d at 478 (“[N]eedlessly
stigmatizing and humiliating children who are being raised by the loving couples targeted
by Virginia’s Marriage Laws betrays [the state’s interest in child welfare].”).12
4
12 We also note, with respect to the first three rationales asserted by appellants, that the same arguments were submitted to the Court in Windsor and rejected. The initial brief filed by the Bipartisan Legal Advisory Group (“BLAG”) in that case argued that DOMA was justified based on the “link between procreation and marriage.” Initial Br. for BLAG at 44, Windsor, 133 S. Ct. 2675 (No. 12-307). BLAG also argued that refusing to recognize same-sex marriage “offers special encouragement and support for relationships that can result in mothers and fathers jointly raising their biological children” and that “biological differentiation in the roles of mothers and fathers makes it rational to encourage situations in which children have one of each.” Id. at 48.
Justice Alito’s dissent in Windsor relied on these arguments. 133 S. Ct. at 2718 (Alito, J., dissenting) (asserting that states are free to support the “‘traditional’ or ‘conjugal’ view” of “marriage as an intrinsically opposite-sex institution . . . created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing”). The majority did not mention these justifications, but concluded that “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” Id. at 2695.
-58-

Appellants’ fourth and final justification for Amendment 3, “accommodating religious freedom and reducing the potential for civic strife,” fails for reasons independent of the foregoing. Appellants contend that a prohibition on same-sex marriage “is essential to preserving social harmony in the State” and that allowing samesex couples to marry “would create the potential for religion-related strife.”
Even assuming that appellants are correct in predicting that some substantial degree of discord will follow state recognition of same-sex marriage, the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights. See, e.g., Palmer v. Thompson, 403 U.S. 217, 226 (1971) (“Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility . . . .”). In Watson v. City of Memphis, 373 U.S. 526 (1963), for example, the Court rejected a city’s claim that “community confusion and turmoil” permitted it to delay desegregation of its public parks. Id. at 535. And in Cleburne, the Court held that negative attitudes toward the class at issue (intellectually impaired individuals) “are not permissible bases for treating a home for the mentally retarded differently.” 473 U.S. at 448. “It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause, and the city may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic.” Id. (quotation omitted).
Appellants acknowledge that a state may not “invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution.” But they argue that the social and religious strife argument
-59-

qualifies as legitimate because a fundamental right is not at issue in this case. Because we have rejected appellants’ contention on this point, their fourth justification necessarily fails.
We also emphasize, as did the district court, that today’s decision relates solely to civil marriage. See Kitchen, 961 F. Supp. 2d at 1214 (“[T]he court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage.”). Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit. We respect the views advanced by members of various religious communities and their discussions of the theological history of marriage. And we continue to recognize the right of the various religions to define marriage according to their moral, historical, and ethical precepts. Our opinion does not intrude into that domain or the exercise of religious principles in this arena. The right of an officiant to perform or decline to perform a religious ceremony is unaffected by today’s ruling. See Griego v. Oliver, 316 P.3d 865, 871 (N.M. 2013) (“Our holding [that same-sex marriage is required by the state constitution] will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs.”); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 475 (Conn. 2008) (“Religious freedom will not be jeopardized by the marriage of same sex couples because religious
-60-

organizations that oppose same sex marriage as irreconcilable with their beliefs will not be required to perform same sex marriages or otherwise to condone same sex marriage or relations.”); In re Marriage Cases, 183 P.3d at 451-52 (“[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”).13
C Appellants raise a number of prudential concerns in addition to the four legal justifications discussed above. They stress the value of democratic decision-making and the benefits of federalism in allowing states to serve as laboratories for the rules concerning marriage. As a matter of policy, it might well be preferable to allow the national debate on same-sex marriage to play out through legislative and democratic channels. Some will no doubt view today’s decision as “robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.” Windsor, 133 S. Ct. at 2711 (Scalia, J., dissenting). But the judiciary is not empowered to pick and choose the timing of its decisions. “It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants.” 13 Although appellants suggest that religious institutions might be subject to hypothetical lawsuits under various scenarios, such lawsuits would be a function of antidiscrimination law, not legal recognition of same-sex marriage.
-61-

Pierson v. Ray, 386 U.S. 547, 554 (1967). Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box. “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
Similarly, the experimental value of federalism cannot overcome plaintiffs’ rights to due process and equal protection. Despite Windsor’s emphasis on state authority over marriage, the Court repeatedly tempered its pronouncements with the caveat that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” 133 S. Ct. at 2691; see also id. at 2692 (“[T]he incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.”); id. (“The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.”). Our federalist structure is designed to “secure[] to citizens the liberties that derive from the diffusion of sovereign power” rather than to limit fundamental freedoms. New York v. United States, 505 U.S. 144, 181 (1992) (quotation omitted).
-62-

Appellants also suggest that today’s ruling will place courts on a slippery slope towards recognizing other forms of currently prohibited marriages. Although we have no occasion to weigh in on the validity of laws not challenged in this case, same-sex marriage prohibitions differ in at least one key respect from the types of marriages the appellants identify: Unlike polygamous or incestuous marriages, the Supreme Court has explicitly extended constitutional protection to intimate same-sex relationships, see Lawrence, 539 U.S. at 567, and to the public manifestations of those relationships, Windsor, 133 S. Ct. at 2695. Our holding that plaintiffs seek to exercise a fundamental right turns in large measure on this jurisprudential foundation that does not exist as to the hypothetical challenges identified by appellants.
Another slippery-slope argument brought forward by appellants is that federal constitutional protection for same-sex marriage might lead to the “wholesale ‘privatization’” of marriage through the “enactment of a civil-union regime for all couples, with religious and other organizations being free to offer the title of ‘marriage’ as they see fit.” But they provide no authority for the proposition that an unconstitutional restriction on access to an institution can be saved by the possibility that its privileges— or the name attached to them—could be withdrawn from everyone. If a state were entitled to defend the deprivation of fundamental rights in this way, it might always make the same threat.
Lastly, appellants express concern that a ruling in plaintiffs’ favor will unnecessarily brand those who oppose same-sex marriage as intolerant. We in no way endorse such a view and actively discourage any such reading of today’s opinion.
-63-

Although a majority’s “traditional[] view[ of] a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” Lawrence, 539 U.S. at 577 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)), for many individuals, religious precepts concerning intimate choices constitute “profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives,” id. at 571. Courts do not sit in judgment of the hearts and minds of the citizenry. Our conclusion that plaintiffs possess a fundamental right to marry and to have their marriages recognized in no way impugns the integrity or the good-faith beliefs of those who supported Amendment 3. See Wolf, 2014 U.S. Dist. LEXIS 77125, at *4-5 (“In reaching [the] decision [that a same-sex marriage ban is unconstitutional, there is no need] to disparage the legislators and citizens who voted in good conscience for the marriage amendment.”).
V In summary, we hold that under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. We AFFIRM the judgment of the district court. In consideration of the Supreme Court’s decision to stay the district court’s injunction pending the appeal to our circuit, we conclude it is appropriate to STAY our
-64-

mandate pending the disposition of any subsequently filed petition for writ of certiorari.14
See Fed. R. App. P. 41(d)(2) (allowing circuit courts to stay their mandates pending the
completion of certiorari proceedings); Massachusetts v. U.S. Dep’t of Health & Human
Servs., 682 F.3d at 17 (declaring DOMA § 3 unconstitutional and staying the mandate in
the same opinion); Natural Res. Def. Council, Inc. v. Winter, 518 F.3d 704, 705 (9th Cir.
2008) (issuing a stay sua sponte); see also Latta v. Otter, No. 14-35420, Order, at 2 (9th
Cir. May 20, 2014) (unpublished) (relying on the Supreme Court’s Kitchen order to stay
a district court injunction against a same-sex marriage ban); DeBoer v. Snyder, No. 141341, Order, at 1 (6th Cir. Mar. 25, 2014) (unpublished) (same).15
It is so ordered.
14 If no petition for certiorari is filed, we would lift the stay and issue our mandate when the deadline for filing the petition lapses. See Perry v. Brown, 681 F.3d 1065, 1066-67 (9th Cir. 2012) (per curiam). If a petition for certiorari is filed and denied, we would lift the stay and issue the mandate. See Stafford v. Ward, 60 F.3d 668, 671 (10th Cir. 1995). And if a petition for certiorari is filed and granted, the stay will remain in effect until the Supreme Court resolves the dispute. See id. at 670.
15 The Supreme Court recently denied without explanation a motion to stay a district court’s order enjoining the enforcement of a state’s same-sex marriage ban. See Nat’l Org. for Marriage v. Geiger, No. 13A1173, 2014 U.S. LEXIS 3990 (June 4, 2014). We note that in that case the named defendants declined to defend the challenged laws before the district court. Geiger, 2014 U.S. Dist. LEXIS 68171, at *10. A third party, whose motion to intervene in the district court had been denied, sought a stay from the Supreme Court. As a result, the Court may have denied a stay in Geiger for lack of a proper party requesting one. Thus, Geiger does not clearly indicate that the Court no longer wishes to preserve the status quo regarding same-sex marriage in Utah.
-65-

No. 13-4178, Kitchen, et al. v. Herbert, et al. KELLY, Circuit Judge, concurring in part and dissenting in part.
I concur with the court’s result that Plaintiffs have standing to challenge the provisions at issue,1 that the Salt Lake County Clerk, Governor, and Attorney General were proper Defendants, and that the appeal may proceed despite the absence of the Salt Lake County Clerk. I disagree with this court’s conclusions that (1) Baker v. Nelson, 409 U.S. 810 (1972), need not be followed and that (2) the liberty guaranteed by the Fourteenth Amendment includes a fundamental right which requires Utah to extend marriage to same-gender couples and recognize same-gender marriages from other states. Because I conclude that there is no such fundamental right, it is unnecessary to consider whether Utah’s justifications for retaining its repeatedly-enacted concept of marriage pass heightened scrutiny. In my view, the provisions should be analyzed under traditional equal protection analysis and upheld as rationally related to (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.
“Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,” at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage. See United States v. Windsor, 133 S. Ct. 2675, 2714 (2013) (Alito, J., dissenting). The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. See Windsor, 133 S.
1 Utah Const. art. I, § 29 and Utah Code §§ 30-1-2(5) (enacted in 1977), 30-1-4.1.

Ct. at 2691-92. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender. Indeed, the Court has been less than solicitious of plural marriages or polygamy.
If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head. See Bond v. United States, 131 S. Ct. 2355, 2364 (2011) (explaining that federalism allows for state responses instead of relying upon the eventuality of a federal policy). Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this (including whether to extend marriage to same-gender couples) is inevitable. See id.; Utah Code. §§ 30-1-1, -2. And given the recent advent of same-gender marriage, Windsor, 133 S. Ct. at 2689, it is hardly remarkable that a state might codify what was once implicit. For the following reasons, I respectfully dissent.
A. Baker v. Nelson The starting point for a claim that same-gender marriage is required by the
Constitution must be the Constitution. Because the Constitution does not speak to the issue of same-gender marriage—or marriage at all—the next step is to review the Supreme Court’s decisions on the issue. And on the question presented here, the Supreme Court has already spoken. In Baker v. Nelson, the Court dismissed an appeal
2

asking whether the Constitution forces a state to recognize same-gender marriage “for want of a substantial federal question.” 409 U.S. 810 (1972). That dismissal should foreclose the Plaintiffs’ claims, at least in this court.
The petitioners in Baker argued that Minnesota’s marriage scheme violated due process and equal protection. Jurisdictional Statement, No. 71-1027, at 3-19 (Oct. Term 1972). The Minnesota Supreme Court unambiguously rejected the notion that samegender marriage was a fundamental right, interpreting Loving v. Virginia as resting upon the Constitution’s prohibition of race discrimination. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). Absent irrational or invidious discrimination, a “theoretically imperfect” marriage classification does not offend equal protection or due process under the Fourteenth Amendment. Id. The import of Baker to this case is clear: neither due process nor equal protection bar states from defining marriage as between one man and one woman, or require states to extend marriage to same-gender couples.
A summary dismissal is a merits determination and a lower federal court should not come to an opposite conclusion on the issues presented. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). The district court relied upon a statement in Hicks v. Miranda that a question remains unsubstantial unless “doctrinal developments” may suggest otherwise. 422 U.S. 332, 344 (1975). On this point, Miranda held that a summary dismissal could not be disregarded. Id. at 344-45. Were there any doubt, the “doctrinal developments” exception was followed by a statement that summary decisions are binding on lower courts until the Court notifies otherwise. Id.
3

The rule is clear: if a Supreme Court case is directly on point, a lower federal court should rely on it so the Supreme Court may exercise “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). The Supreme Court is certainly free to re-examine its precedents, but it discourages lower courts from concluding it has overruled earlier precedent by implication. Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming Rodriguez de Quijas). The majority construes the unequivocal statement in Rodriguez de Quijas (and presumably Agostini) as inapplicable because it appeared in a merits disposition and accordingly did not “overrule” the “doctrinal developments rule” as to summary dispositions. But that is just another way of stating that a summary disposition is not a merits disposition, which is patently incorrect. Though the Supreme Court may not accord Baker the same deference as an opinion after briefing and argument, it is nonetheless precedential for this court. Caban v. Mohammed, 441 U.S. 380, 390 n.9 (1979). Summary dismissals are merits rulings as to those questions raised in the jurisdictional statement. Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979).
Plaintiffs argue that Baker did not address the precise issues here because “[t]he judgment affirmed in Baker addressed whether same-sex couples were denied equal protection and due process by Minnesota’s marriage statute—a measure that did not indicate on its face whether same-sex couples could marry and that had not been enacted for the express purpose of excluding same-sex couples from marriage.” Aplee. Br. 23.
4

They further argue that Utah’s non-recognition of Plaintiffs Archer and Call’s Iowa marriage distinguishes this case from Baker. Neither reason is persuasive. The fact remains that the Minnesota Supreme Court interpreted the state statute (at the time) to not require same-gender marriage and decided largely the same federal constitutional questions presented here. To the extent there is no right to same-gender marriage emanating from the Fourteenth Amendment, a state should not be compelled to recognize it. See Utah Code § 30-1-4(1) (declining to recognize foreign same-gender marriages).
Regardless, subsequent doctrinal developments have not undermined the Court’s traditional deference to the States in the field of domestic relations. To be sure, the district court concluded otherwise based upon the following Supreme Court developments: (1) gender becoming a quasi-suspect class, Craig v. Boren, 429 U.S. 190 (1976); Frontiero v. Richardson, 411 U.S. 677 (1973), (2) invalidation of a state law repealing and barring sexual-orientation protection, Romer v. Evans, 517 U.S. 620 (1996), (3) invalidation of a statute that proscribed same-gender sexual relations insofar as private conduct among consenting adults, Lawrence v. Texas, 539 U.S. 558 (2003), (4) declaring the Defense of Marriage Act’s (“DOMA”) definition of “marriage” and “spouse” to exclude same-gender marriages as violative of Fifth Amendment due process and equal protection principles, United States v. Windsor, 133 S. Ct. 2675 (2013). Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1194-95 (D. Utah 2013). This court relies on Lawrence and Windsor as justification for not deferring to Baker. As discussed below, none of these developments can override our obligation to follow (rather than lead) on the
5

issue of whether a state is required to extend marriage to same-gender couples. At best, the developments relied upon are ambiguous and certainly do not compel the conclusion that the Supreme Court will interpret the Fourteenth Amendment to require every state to extend marriage to same-gender couples, regardless of contrary state law. See Massachusetts. v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (rejecting the idea that Romer or Lawrence require states to permit same-gender marriage and that the Supreme Court has repudiated Baker).
Because I have not persuaded the panel, I proceed to analyze the remaining issues.
B. Equal Protection–Gender Discrimination Plaintiffs argue that defining marriage to exclude same-gender unions is based
upon gender stereotyping where “the law presumed women to be legally, socially, and financially dependent upon men.” Aplee. Br. at 55-63. But this case involves no disparate treatment based upon gender that might invite intermediate scrutiny. See Craig, 429 U.S. at 197 (such scrutiny requires that the law be substantially related to furthering important governmental interests). Utah’s constitutional and statutory provisions, Utah Const. art. I, § 29 and Utah Code §§ 30-1-2(5), 30-1-4.1, enacted in 1977 and 2004, simply define marriage as the legal union of a man and a woman and do not recognize any other domestic union, i.e., same-gender marriage. They apply to same-gender male couples and same-gender female couples alike.
Disparate treatment of men and women as a class is an essential element of an 6

equal protection, gender discrimination claim. See United States v. Virginia, 518 U.S. 515, 519-20 (1996) (women excluded from attending VMI); Miss. Univ for Women v. Hogan, 458 U.S. 718, 719-23 (1982) (men excluded from attending nursing school); Craig, 429 U.S. at 191-92 (women allowed to buy beer at younger age than men); Frontiero, 411 U.S. at 678-79 (women seeking military benefits required to demonstrate the spouse’s economic dependency, but not requiring the same of men); Reed v. Reed, 404 U.S. 72-73 (1971) (automatic preference for men over women for estate administration). Plaintiffs cannot show that either gender as a class is disadvantaged by the Utah provisions defining marriage.
C. Equal Protection–Sexual Orientation Plaintiffs argue that defining marriage to exclude same-gender unions is a form of
sexual orientation discrimination triggering heightened scrutiny. Aplee. Br. at 48-55. The Supreme Court has yet to decide the level of scrutiny attendant to classifications based upon sexual orientation, see Windsor, 133 S. Ct. at 2683-84, but this court has rejected heightened scrutiny, see Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008); Walmer v. U.S. Dep’t of Defense, 52 F.3d 851, 854 (10th Cir. 1995); Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992). Although Plaintiffs argue that our precedent does not justify such a position, one panel of this court may not overrule another absent superseding en banc review or a Supreme Court decision invalidating our precedent. Rezaq v. Nalley, 677 F.3d 1001, 1012 n.5 (10th Cir. 2012). Neither has
7

occurred here.
D. Due Process–Fundamental Right The Plaintiffs contend that they are not relying upon a fundamental right to same-
gender marriage, but instead a fundamental right to marriage simpliciter. Aplee. Br. at 16, 33-39. They contend that freedom to marry is self-defining and without reference to those who assert it or have been excluded from it. Id. at 34. Of course, the difficulty with this is that marriage does not exist in a vacuum; it is a public institution, and states have the right to regulate it. That right necessarily encompasses the right to limit marriage and decline to recognize marriages which would be prohibited; were the rule as the Plaintiffs contend, that marriage is a freestanding right, Utah’s prohibition on bigamy would be an invalid restriction, see Utah Const. art. III; see also Utah Code §§ 30-1-2(1) (bigamy), 301-4(1) (non-recognition of such marriages solemnized elsewhere), 76-7-101 (criminalizing bigamy), 76-7-101.5 (criminalizing child bigamy). That proposition has been soundly rejected. Reynolds, 98 U.S. at 166-67; Bronson v. Swensen, 500 F.3d 1099, 1105-1106 (10th Cir. 2007); see also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n.15 (1973). Likewise, were marriage a freestanding right without reference to the parties, Utah would be hard-pressed to prohibit marriages for minors under 15 and impose conditions for other minors. Utah Code §§ 30-1-2(3), 30-1-9.
As noted, the Court has recognized a fundamental right to marriage protected by substantive due process. Turner, 482 U.S. at 94; Zablocki, 434 U.S. at 384-86; Loving,
8

388 U.S. at 12. As such, restrictions on the right are subject to strict scrutiny: they must be narrowly tailored to further compelling state interests. Zablocki, 434 U.S. at 388; Loving, 388 U.S. at 11-12. But it is a stretch to cast those cases in support of a fundamental right to same-gender marriage.
Here’s why. First, same-gender marriage is a very recent phenomenon; for centuries “marriage” has been universally understood to require two persons of opposite gender. Windsor, 133 S. Ct. at 2689. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term “marriage” as used in those cases had any meaning other than what was commonly understood for centuries. Courts do not decide what is not before them. That the Court did not refer to a “right to interracial marriage,” or a “right to inmate marriage” cannot obscure what was decided; the Supreme Court announced a right with objective meaning and contours. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Thus, contrary to Plaintiffs’ contention, Aplee. Br. at 34 n.5, it is entirely appropriate for the State to characterize the right sought as one of “same-gender marriage” and focus attention on its recent development. Perhaps someday same-gender marriage will become part of this country’s history and tradition, but that is not a choice this court should make.
Much of this court’s opinion is dedicated to finding otherwise by separating
9

marriage from procreation and expounding on how other substantive due process and privacy concepts, including personal autonomy, dignity, family relationships, reproductive rights, and the like, are the antecedents and complements of same-gender marriage. But we should be reluctant to announce a fundamental right by implication. Not only is that beyond our power, it is completely arbitrary and impractical; as in this case, a state should be allowed to adopt change if desired and implement it. As these proceedings demonstrate, the State has a much better handle on what statutory and administrative provisions are involved, and what is necessary to implement change, than we do.
Nothing in the Court’s trilogy of cases, Romer, Lawrence, or Windsor, points to a different result. Though the cases may afford constitutional protection for certain “moral and sexual choices” of same gender couples, Windsor, 133 S. Ct. at 2694, they simply have not created a fundamental right to same-gender marriage, let alone heightened scrutiny for any provision which may be implicated. Romer is an equal protection case invalidating a Colorado constitutional provision which effected a “[s]weeping and comprehensive change” in the law by permanently withdrawing and barring antidiscrimination protections against this particular group. 517 U.S. at 627; see PriceCornelison, 524 F.3d at 1113 n.9 (noting that Romer used a rational basis test). Lawrence also is an equal protection case that invalidated a Texas statute proscribing only samegender sexual contact, no matter whether private and consensual, because the provision furthered no legitimate state interest. 539 U.S. at 578; id. at 581-83 (O’Connor, J.,
10

concurring); Seegmiller v. LaVerkin City, 528 F.3d 762, 771 (10th Cir. 2008) (noting that Lawrence did not announce a fundamental right to private, consensual sexual activity as it was decided on rational basis review).
Plaintiffs suggest that Lawrence should frame the inquiry as a right to marry rather than a right to same-gender marriage. To be sure, the Court recognized that criminalizing private, consensual conduct for one group interfered with personal autonomy, but the Court expressly disclaimed entering the same-gender union fray. See Lawrence, 539 U.S. at 578; id. at 585 (O’Connor, J., concurring) (noting that “preserving the traditional institution of marriage” would be a legitimate state interest beyond moral disapproval). Moreover, as discussed above, numerous restrictions are already imposed on marriage. It cannot be evaluated devoid of context.
While Windsor is the only Supreme Court case concerning same-gender marriage, it simply did not decide the issue of state prohibitions on same-gender marriages; instead, it concentrated on same-gender marriages already authorized by state law. Windsor, 133 S. Ct. at 2696. It certainly did not require every state to extend marriage to same-gender couples, regardless of the contrary views of the electorate and their representatives. After Windsor, a state remains free (consistent with federal law and comity) to not recognize such marriages. 28 U.S.C. § 1738C. Windsor protected valid same-gender, state law marriages based on federalism concerns, as well as Fifth Amendment due process and implied equal protection concerns. Id. at 2695. As in Lawrence, the Court employed an equal protection construct in determining that “no legitimate purpose” could justify
11

DOMA’s unequal treatment of same-gender marriages already authorized by state law. Id. at 2693, 2696. Given an unusual federal intrusion into state authority, the Court analyzed the nature, purpose, and effect of the federal law, alert for discrimination of “unusual character.” Id. at 2693.
Windsor did not create a fundamental right to same-gender marriage. To the contrary, Windsor recognized the authority of the States to redefine marriage and stressed the need for popular consensus in making such change. Id. at 2692. Consistent with federalism, state policies concerning domestic relations and marriage will vary. Id. at 2691. Traditionally, the federal government has deferred to those policies, including the definition of marriage. Id. at 2691, 2693. Courts should follow suit.
Plaintiffs argue that Windsor dictates the outcome here because we need only look to the purpose and effect of the Utah constitutional amendment defining marriage and not recognizing any other union. But this case does not involve interference with traditional state prerogatives so it is questionable whether such a directive from Windsor applies. If it does, Plaintiffs draw only one conclusion: the provision is designed to impose inequality on same-gender couples and their children. Aplt. Br. at 39-48. But DOMA is an outlier. It was unique in not deferring to the States’ power to define marriage and instead interfering with the legal effect (or “equal dignity”) of those marriages. In this case, Utah seeks to preserve the status quo and the right of the people to decide this issue.
Not surprisingly, the district court resisted a finding of animus. Kitchen, 961 F. Supp. 2d at 1209. That was undoubtedly correct. The Plaintiffs’ one-sided formulation
12

ignores the obvious and real concern that this issue generates both on the merits and procedurally. Nearly everyone is or has been affected from birth by the presence or absence of marriage. In any event, this record hardly reflects “a bare . . . desire to harm a politically unpopular group.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973). In addition to statements for and against, the Utah legislature’s impartial analysis discussed federal constitutional implications. Aplt. App. at 34-48. The power of judicial review is strong medicine, and we should be reluctant to invalidate state constitutional or legislative enactments based upon motive. Rather, it is only an evident and “inevitable unconstitutional effect” that warrants such treatment. United States v. O’Brien, 391 U.S. 367, 385 (1968).
E. Equal Protection–Rational Basis Plaintiffs contend and the district court so found that the provisions cannot be
sustained under rational basis review. Kitchen, 961 F. Supp. 2d at 1210-15. The State offered several rationales including (1) encouraging responsible procreation given the unique ability of opposite-gender couples to conceive, (2) effective parenting to benefit the offspring, and (3) proceeding with caution insofar as altering and expanding the definition of marriage. The district court rejected these rationales based on a lack of evidence and/or a lack of a rational connection between excluding same-gender couples
13

from marriage and the asserted justification.2
Equal protection “is essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
439 (1985). Given the provisions in this case, we should look at the definition of
marriage and the exclusion of same-gender couples and inquire whether “the
classification . . . is rationally related to a legitimate state interest.” Id. at 440.
To the extent the district court thought that the State had any obligation to produce
2 On appeal, the State offers a different formulation: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children,” (2) children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home, (3) “ensuring adequate reproduction by parents willing and able to provide a high-quality home environment for their children,” and (4) accommodating religious freedom and reducing the potential for civic strife.” Aplt. Br. at iii. Notwithstanding its endorsement of many similar (though more general) values in the substantive due process discussion, this court is only willing to assume (apparently without deciding) that the first three are compelling.
Be that as it may, Plaintiffs correctly point out that the fourth argument was not raised in the district court. Aplee. Br. at 81 n.26. The State responds that the district court “discussed and rejected this argument in its decision,” but the court merely made an offhand comment that religious freedom would be furthered by allowing churches to perform same-gender weddings (if they so choose). Aplee. Reply Br. at 41 n.19 (citing Kitchen, 961 F. Supp. 2d at 1214). The State also argues that rational basis review is not confined to “‘explanations of the statute’s rationality that may be offered by the litigants or other courts.’” Id. (quoting Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988)). That may be, but the State as a litigant is offering an explanation that was not preserved. Finally, the State argues that appellate courts may address a waived issue in the public interest or to avoid manifest injustice. Id. We normally conduct appellate review based upon arguments raised in the district court. For those that were not, absent a full plain error argument in the opening brief, we consider such arguments waived. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal[ ]surely marks the end of the road for an argument for reversal not first presented to the district court.”).
14

evidence, surely it was incorrect. Vance v. Bradley, 440 U.S. 93, 110-11 (1979). Though the State is not precluded from relying upon evidence, rational basis analysis is a legal inquiry. See Id. at 111-112; see also United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175-77, 179 (1980). The district court seems to have misunderstood the essence of rational basis review: extreme deference, the hallmark of judicial restraint. United States v. Alvarez, 132 S. Ct. 2537, 2552 (2012) (Breyer, J., concurring); Fed. Commc’n Comm’n v. Beach Commc’ns, 508 U.S. 307, 314 (1993). The State could rely upon any plausible reason and contend that the classification might arguably advance that reason. Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080-81 (2012). Plaintiffs had the burden of refuting all plausible reasons for the challenged amendment and statutes. See Vance, 440 U.S. at 111.
Whether a reason actually motivated the electorate or the legislature is irrelevant; neither is required to state its reason for a choice. See Fritz, 449 U.S. at 179. Legislative choices involve line-drawing, and the fact that such line-drawing may result in some inequity is not determinative. See Heller v. Doe, 509 U.S. 312, 321 (1993). Accordingly, an enactment may be over-inclusive and/or under-inclusive yet still have a rational basis. The fact that the classification could be improved or is ill-advised is not enough to invalidate it; the political process is responsible for remedying perceived problems. City of Cleburne, 473 U.S. at 440 (“The Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.”).
Judged against these standards, Utah should prevail on a rational basis analysis.
15

Plaintiffs have not overcome their “heavy burden” of demonstrating that the provisions are “arbitrary and irrational,” that no electorate or legislature could reasonably believe the underlying legislative facts to be true. See Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463, 465 (1988). It is biologically undeniable that opposite-gender marriage has a procreative potential that same-gender marriage lacks. The inherent differences between the biological sexes are permissible legislative considerations, and indeed distinguish gender from those classifications that warrant strict scrutiny. See United States v. Virginia, 518 U.S. 515, 533 (1996). In Nguyen v. I.N.S., for example, the Court upheld a legislative scheme imposing more onerous burdens on unwed fathers than unwed mothers to prove the citizenship of their foreign-born children because of the opportunity for mothers to develop a relationship with their child at childbirth. 533 U.S. 53, 56-59 (2001). The Court recognized important government interests in ensuring both a biological relationship between the citizen and the child and an opportunity to develop a meaningful parent-child relationship. Id. at 62-65. The Court stressed the government’s critically important “interest in ensuring some opportunity for a tie between citizen father and foreign born child” as a proxy for the opportunity for connection childbirth affords the mother. Id. at 66. Nguyen suggests that when it comes to procreation, gender can be considered and that biological relationships are significant interests.
Nor is the State precluded from considering procreation in regulating marriage. Merely because the Court has discussed marriage as a fundamental right apart from procreation or other rights including contraception, child rearing, and education does not
16

suggest that the link between marriage and procreation may not be considered when the State regulates marriage. The Court’s listing of various rights from time to time is intended to be illustrative of cases upholding a right of privacy, ensuring that certain personal decisions might be made “without unjustified government interference.” Carey v. Population Servs. Int’l, 431 U.S. 678, 684-85 (1977). Indeed, it is difficult to separate marriage from procreation considering the State’s interest in regulating both. Even in Turner, where the Court discussed marriage as a fundamental right for inmates based upon other advantages of marriage, the Court explained that “most inmate marriages are formed in the expectation that they will ultimately be fully consummated” and mentioned the advantage of “legitimation of children born out of wedlock.” 482 U.S. at 96. It goes without saying that there are procreative and personal dimensions of marriage, but a state may place greater emphasis on one or the other as it regulates marriage without violating the Fourteenth Amendment.3
It is also undeniable that the State has an important interest in ensuring the wellbeing of resulting offspring, be they planned or unplanned. To that end, the State can offer marriage and its benefits to encourage unmarried parents to marry and married parents to remain so. Thus, the State could seek to limit the marriage benefit to opposite-
3 These permissible considerations easily distinguish this case from Loving v. Virginia, upon which Plaintiffs rely. As opposed to the Court-approved interests furthered by the regulations here, the miscegenation law invalidated in Loving was based “upon distinctions drawn according to race,” and the law furthered only the patently impermissible pursuit of invidious discrimination (maintaining White Supremacy). 388 U.S. at 11-12. The Court has always considered racial classifications as different than those based upon gender, or any other consideration.
17

gender couples completely apart from history and tradition. Far more opposite-gender couples will produce and care for children than same-gender couples and perpetuation of the species depends upon procreation. Consistent with the greatest good for the greatest number, the State could rationally and sincerely believe that children are best raised by two parents of opposite gender (including their biological parents) and that the present arrangement provides the best incentive for that outcome. Accordingly, the State could seek to preserve the clarity of what marriage represents and not extend it.
Of course, other states may disagree. And it is always possible to argue that there are exceptions. But on this issue we should defer. To be sure, the constant refrain in these cases has been that the States’ justifications are not advanced by excluding samegender couples from marriage. But that is a matter of opinion; any “improvement” on the classification should be left to the state political process.
At the very least, same-gender marriage is a new social phenomenon with unknown outcomes and the State could choose to exercise caution. Utah’s justifications for not extending marriage to include same-gender couples are not irrefutable. But they don’t need to be; they need only be based upon “any reasonably conceivable state of facts.” Beach Commc’ns, 508 U.S. at 313. In conducting this analysis, we must defer to the predictive judgments of the electorate and the legislature and those judgments need not be based upon complete, empirical evidence. See Turner Broadcasting System, Inc. v. Fed. Commc’n Comm’n, 512 U.S. 622, 665-66 (1994).
No matter how many times we are reminded that (1) procreative ability and
18

effective parenting are not prerequisites to opposite-gender marriage (exclusion of same-
gender couples is under-inclusive), (2) it is doubtful that the behavior of opposite-gender
couples is affected by same-gender marriage (lack of evidence), (3) the evidence is
equivocal concerning the effects of gender diversity on parenting (lack of evidence) and
(4) the present scheme disadvantages the children of same-gender couples (exclusion is
over-inclusive),4 the State’s classification does not need to be perfect. It can be under-
inclusive and over-inclusive and need only arguably serve the justifications urged by the
State. It arguably does.
That the Constitution does not compel the State to recognize same-gender
marriages within its own borders demonstrates a fortiori that it need not recognize those
solemnized without. Unlike the federal government in Windsor, a state has the “historic
and essential authority to define the marital relation” as applied to its residents and
citizens. Windsor, 133 S. Ct. at 2691-92. To that end, Utah has the authority to decline
to recognize valid marriages from other states that are inconsistent with its public policy
choices. See In re Vetas’ Estate, 170 P.2d 183, 187 (Utah 1946) (declining to recognize
4 The Court’s conclusion that children raised by same-gender couples are somehow stigmatized, see Windsor, 133 S. Ct. at 2694, seems overwrought when one considers that 40.7% of children are now born out of wedlock. See Center for Disease Control and Prevention, FastStats Homepage, available at http://www.cdc.gov/nchs/fastats/unmarried-childbearing.htm (last visited June 24, 2014). Of course, there are numerous alternative family arrangements that exist to care for these children. We should be hesitant to suggest stigma where substantial numbers of children are raised in such environments. Moreover, it is pure speculation that every two-parent household, regardless of gender, desires marriage. See Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1634 (2014) (plurality opinion) (cautioning against assuming that members of the same group think alike and share the same views).
19

foreign common law marriage when such marriages were not recognized by Utah) (superseded by statute as stated in Whyte v. Blair, 885 P.2d 791, 793 (Utah 1994)). To conclude otherwise would nationalize the regulation of marriage, thereby forcing each state “to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Baker by Thomas v. Gen. Motors Corp., 522 U.S. 222, 232 (1998). Such a result runs in direct contravention of the law of comity between states and its uncontroversial corollary that marriage laws necessarily vary from state to state. Windsor, 133 S. Ct. at 2691.
The State has satisfied its burden on rational basis review. One only need consider the reams of sociological evidence urged by the parties and the scores of amicus briefs on either side to know that the State’s position is (at the very least) arguable. It most certainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legislature could conceivably believe. Though the Plaintiffs would weigh the interests of the State differently and discount the procreation, child-rearing, and caution rationales, that prerogative belongs to the electorate and their representatives. Or as the Court recently stated:
The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy.
Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014)
20

(plurality opinion). We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.
21

APPENDIX A
27 SCHOLARS OF FEDERALISM AND JUDICIAL RESTRAINT Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer
46 EMPLOYERS AND ORGANIZATIONS REPRESENTING EMPLOYERS Attorneys on the Brief: Meghan Bailey, Susan Baker Manning, John V. McDermott, Lauren Schmidt, Margaret Sheer, Michael Louis Whitlock
93 INDIVIDUAL FAITH LEADERS IN OKLAHOMA AND UTAH Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
9TO5, NATIONAL ASSOCIATION OF WORKING WOMEN Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ACLU OF OKLAHOMA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ACLU OF UTAH Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
AFFIRMATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
ALL SOULS UNITARIAN CHURCH OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
ALLEN, DOUGLAS W. Attorneys on the Brief: David C. Walker
ALLIANCE FOR A BETTER UTAH Attorneys on the Brief: Courtney Bowman, Sarah Kroll-Rosenbaum, Shawn Scott Ledingham
ALVARÉ, HELEN M. Attorneys on the Brief: Richard D. White
AMBROSE, DOUGLAS Attorneys on the Brief: Frank D. Mylar

APPENDIX A
AMERICAN CIVIL LIBERTIES UNION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
AMERICAN LEADERSHIP FUND Attorneys on the Brief: Frank D. Mylar
AMERICAN MILITARY PARTNER ASSOCIATION Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man
AMERICAN PSYCHOLOGICAL ASSOCIATION Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith
AMERICAN SOCIOLOGICAL ASSOCIATION Attorneys on the Brief: Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andrew P. Meiser, Andra Troy
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
ANDERSON, JANNA Attorneys on the Brief: Dani Hartvigsen
ANDERSON, RYAN Attorneys on the Brief: Michael Francis Smith
ANTI-DEFAMATION LEAGUE Attorneys on the Brief: Michelle Deutchman, Steven M. Freeman, Seth M. Marnin, Rocky Chiu-feng Tsai
API EQUALITY-LA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE, ASIAN AMERICANS ADVANCING JUSTICE-ASIAN LAW CAUCUS
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE-CHICAGO Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
- 2 -

APPENDIX A
AUSTIN LGBT BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BAR ASSOCIATION OF SAN FRANCISCO Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BARDAGLIO, PETER Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
BASCH, NORMA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BECKET FUND FOR RELIGIOUS LIBERTY Attorneys on the Brief: Eric C. Rassbach, Asma Uddin
BELTRAN, LYNN Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
BELZ, HERMAN Attorneys on the Brief: Frank D. Mylar
BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
BENNE, ROBERT D. Attorneys on the Brief: Frank D. Mylar
BOYLE, DAVID Attorneys on the Brief: David Boyle
CALIFORNIA Attorneys on the Brief: Kamala D. Harris, Peter Sacks
CARBADO, DEVON Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
- 3 -

APPENDIX A
CARLSON, ALLAN C. Attorneys on the Brief: Frank D. Mylar
CARROLL, JASON S. Attorneys on the Brief: Lynn Dennis Wardle
CATHEDRAL OF HOPE OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CATO INSTITUTE Attorneys on the Brief: Ilya Shapiro, Elizabeth B. Wydra
CENTER FOR CONSTITUTIONAL JURISPRUDENCE Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer
CENTRAL CONFERENCE OF AMERICAN RABBIS Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
CHILDREN'S CENTER OF SALT LAKE CITY Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
CHRISTENSEN, LAVAR Attorneys on the Brief: Robert Theron Smith
CHURCH OF THE OPEN ARMS OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CHURCH OF THE RESTORATION OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CIMARRON ALLIANCE Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
COLAGE Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
- 4 -

APPENDIX A
COLORADO GAY LESBIAN BISEXUAL TRANSGENDER (GLBT) BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
COLORADO WOMEN'S BAR ASSOCIATION Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
CONCERNED WOMEN FOR AMERICA Attorneys on the Brief: Steven W. Fitschen
CONGREGATION KOLAMI OF SALT LAKE CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CONKLE, DANIEL O. Attorneys on the Brief: Brett Gilbert Scharffs
CONNECTICUT Attorneys on the Brief: George Jepsen, Peter Sacks
CONSTITUTIONAL ACCOUNTABILITY CENTER Attorneys on the Brief: Ilya Shapiro, Elizabeth B. Wydra
CONSTITUTIONAL LAW SCHOLARS Attorneys on the Brief: Lori Ann Alvino McGill, Geoffrey R. Stone
COONTZ, STEPHANIE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
COTT, NANCY Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
COVENANT NETWORK OF PRESBYTERIANS Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
COX, DUANE MORLEY Attorneys on the Brief: Duane Morley Cox
- 5 -

APPENDIX A
CURTIS, G.M. Attorneys on the Brief: Frank D. Mylar
DELAWARE Attorneys on the Brief: Joseph R. Biden III, Peter Sacks
DISTRICT OF COLUMBIA Attorneys on the Brief: Irvin B. Nathan, Peter Sacks
DITZ, TOBY L. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
DOLOVICH, SHARON Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
DUBLER, ARIELA R. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND Attorneys on the Brief: Lawrence John Joseph
EDWARDS, LAURA F. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
EGGEBEEN, DAVID J. Attorneys on the Brief: David C. Walker
EIGHTY ONE UTAH STATE LEGISLATORS Attorneys on the Brief: Robert Theron Smith
EMERSON, MICHAEL O. Attorneys on the Brief: Frank D. Mylar
EPISCOPAL DIOCESE OF UTAH Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
- 6 -

APPENDIX A
EPWORTH UNITED METHODIST CHURCH OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
EQUAL RIGHTS ADVOCATES Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
EQUALITY UTAH Attorneys on the Brief: Troy L. Booher, Clifford J. Rosky, Noella A. Sudbury, Michael D. Zimmerman
FAMILY EQUALITY COUNCIL Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
FAMILY LAW AND CONFLICT OF LAWS PROFESSORS Attorneys on the Brief: Marjory A. Gentry, Joanna L. Grossman, John S. Throckmorton
FAMILY LAW PROFESSORS Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein
FAMILY RESEARCH COUNCIL Attorneys on the Brief: Paul Benjamin Linton
FELLOWSHIP CONGREGATIONAL UNITED CHURCH OF CHRIST OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
FIRST UNITARIAN CHURCH OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
FLUKE, CHARLES Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
FREEDOM TO MARRY Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
- 7 -

APPENDIX A
FRIENDS FOR LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUEER CONCERNS
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
GAY & LESBIAN ADVOCATES & DEFENDERS Attorneys on the Brief: Felicia H. Ellsworth, Mark C. Fleming, Leah M. Litman, Dina Bernick Mishra, Kenneth Lee Salazar, Alan E. Schoenfeld, Paul Reinherz Wolfson
GEORGE, ROBERT P. Attorneys on the Brief: Michael Francis Smith
GEORGE, TIMOTHY Attorneys on the Brief: Frank D. Mylar
GIRGIS, SHERIF Attorneys on the Brief: Michael Francis Smith
GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY Attorneys on the Brief: Nicholas M. O'Donnell
GROSSBERG, MICHAEL Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HADASSAH, THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA, INC. Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
HARTOG, HENDRIK Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HAWKINS, ALAN J. Attorneys on the Brief: David C. Walker
HAYASHI, SCOTT Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
- 8 -

APPENDIX A
HERMAN, ELLEN Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HINDU AMERICAN FOUNDATION Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
HISPANIC NATIONAL BAR ASSOCIATION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
HISTORIANS OF ANTIGAY DISCRIMINATION Attorneys on the Brief: Katie D. Fairchild, Madeline H. Gitomer, Jessica Black Livingston, Katherine A. Nelson, Aaron M. Paul, Erica Knievel Songer, Catherine E. Stetson
HODES, MARTHA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC Attorneys on the Brief: David Scott Flugman
HUMAN RIGHTS CAMPAIGN Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
HUNTER, NAN D. Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
ILLINOIS Attorneys on the Brief: Lisa Madigan, Peter Sacks
INSTITUTE FOR MARRIAGE AND PUBLIC POLICY Attorneys on the Brief: Jennifer L. Bursch
INTERFAITH ALLIANCE FOUNDATION Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
- 9 -

APPENDIX A
INTERFAITH ALLIANCE OF COLORADO Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
IOWA Attorneys on the Brief: Tom Miller, Peter Sacks
JAMES, HAROLD Attorneys on the Brief: Frank D. Mylar
JAPANESE AMERICAN CITIZENS LEAGUE Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
JEWISH SOCIAL POLICY ACTION NETWORK Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
JOHNSON, BYRON R. Attorneys on the Brief: David C. Walker
JUSTICE, STEVEN Attorneys on the Brief: Frank D. Mylar
KERBER, LINDA K. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
KESHET Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
KESSLER-HARRIS, ALICE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
KOONS, ROBERT C. Attorneys on the Brief: Frank D. Mylar
KURTZ, STANLEY Attorneys on the Brief: Frank D. Mylar
- 10 -

APPENDIX A
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Attorneys on the Brief: Jennifer C. Pizer, Susan Sommer, Camilla Taylor, Kenneth D. Upton
LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
LEGAL MOMENTUM Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LEGAL VOICE Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LGBT & ALLIED LAWYERS OF UTAH BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
LIBERTY COUNSEL, INC. Attorneys on the Brief: Anita Staver, Mathew D. Staver
LITTLETON, CHRISTINE A. Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LOPEZ, ROBERT OSCAR Attorneys on the Brief: Dani Hartvigsen
LOVE HONOR CHERISH Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
LUTHERAN CHURCH-MISSOURI SYNOD Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
MAINE Attorneys on the Brief: Janet T. Mills, Peter Sacks
MAINWARING, DOUG Attorneys on the Brief: Dani Hartvigsen
- 11 -

APPENDIX A
MARRIAGE EQUALITY USA Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
MARYLAND Attorneys on the Brief: Douglas F. Gansler, Peter Sacks
MASSACHUSETTS Attorneys on the Brief: Martha Coakley, Michelle L. Leung, Jonathan B. Miller, Genevieve C. Nadeau, Peter Sacks
MAY, ELAINE TYLER Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MAYERI, SERENA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MAYFLOWER CONGREGATIONAL UNITED CHURCH OF CHRIST OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
MCDERMOTT, GERALD R. Attorneys on the Brief: Frank D. Mylar
MCHUGH, PAUL Attorneys on the Brief: Gerard Vincent Bradley, Kevin Trent Snider
MCIFF, KAY Attorneys on the Brief: Robert Theron Smith
METHODIST FEDERATION FOR SOCIAL ACTION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
METROPOLITAN COMMUNITY CHURCHES Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
MINNESOTA LAVENDER BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
- 12 -

APPENDIX A
MINTZ, STEVE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MOORE, RUSSELL Attorneys on the Brief: Frank D. Mylar
MORE LIGHT PRESBYTERIANS Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
MORMONS FOR EQUALITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
MT. TABOR LUTHERAN CHURCH OF SALT LAKE CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
NAACP SALT LAKE BRANCH & NAACP TRI STATE CONFERENCE OF IDAHO, NEVADA AND UTAH
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
NATIONAL ACTION NETWORK Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL ASIAN PACIFIC AMERICA BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY
Attorneys on the Brief: Stephen M. Crampton, Mary Elizabeth McAlister
NATIONAL ASSOCIATION OF EVANGELICALS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
NATIONAL ASSOCIATION OF WOMEN LAWYERS Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
- 13 -

APPENDIX A
NATIONAL COUNCIL OF JEWISH WOMEN Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
NATIONAL COUNCIL OF LA RAZA Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL GAY AND LESBIAN TASK FORCE Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL ORGANIZATION FOR WOMEN FOUNDATION Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
NATIONAL WOMEN'S LAW CENTER Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
NEHIRIM Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
NELSON, MERRILL Attorneys on the Brief: Robert Theron Smith
NERO, NICHOLAS Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
NEW HAMPSHIRE Attorneys on the Brief: Joseph A. Foster, Peter Sacks
NEW MEXICO Attorneys on the Brief: Gary K. King, Peter Sacks
NEW MEXICO LESBIAN AND GAY LAWYERS ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
- 14 -

APPENDIX A
NEW YORK Attorneys on the Brief: Peter Sacks, Eric T. Schneiderman
NEWMAN, ALANA Attorneys on the Brief: Dani Hartvigsen
O'GRADY, CLAUDIA Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW OUTLAWS Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
OKLAHOMANS FOR EQUALITY Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
OREGON Attorneys on the Brief: Ellen F. Rosenblum, Peter Sacks
OUTSERVE-SLDN Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man
PAKALUK, CATHERINE R. Attorneys on the Brief: David C. Walker
PAQUETTE, ROBERT Attorneys on the Brief: Frank D. Mylar
PARENTS AND FRIENDS OF EX-GAYS & GAYS Attorneys on the Brief: Arthur Andrew Schulcz, Jr.
PARENTS, FAMILIES AND FRIENDS OF LESBIANS AND GAYS, INC. Attorneys on the Brief: Andrew John Davis, Jiyun Cameron Lee
PEOPLE FOR THE AMERICAN WAY FOUNDATION Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
PERRY, MICHAEL J. Attorneys on the Brief: Brett Gilbert Scharffs
- 15 -

APPENDIX A
PLECK, ELIZABETH Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
POLIKOFF, NANCY Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
PRESBYTERIAN WELCOME Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
PRICE, JOSEPH Attorneys on the Brief: David C. Walker
PUBLIC ADVOCATES, INC. Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
QLAW - THE GLBT BAR ASSOCIATION OF WASHINGTON Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
RAHE, PAUL A. Attorneys on the Brief: Frank D. Mylar
RECONCILING MINISTRIES NETWORK Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
RECONCILINGWORKS: LUTHERANS FOR FULL PARTICIPATION Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
RECONSTRUCTIONIST RABBINICAL ASSOCIATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
RECONSTRUCTIONIST RABBINICAL COLLEGE Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
- 16 -

APPENDIX A
REGNERUS, MARK D. Attorneys on the Brief: David C. Walker
RELIGIOUS INSTITUTE, INC. Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
REYNOLDS, MICHAEL A. Attorneys on the Brief: Frank D. Mylar
RHODE ISLAND Attorneys on the Brief: Peter F. Kilmartin, Peter Sacks
ROVIG, STANFORD Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
SCHARFFS, BRETT GILBERT Attorneys on the Brief: Brett Gilbert Scharffs
SCHULTZ, VICKI Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SEARS, BRAD Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SHAMMAS, CAROLE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
SHANLEY, MARY Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
SHIFFRIN, SEANA Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SIKH AMERICAN LEGAL DEFENSE AND EDUCATION FUND Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
- 17 -

APPENDIX A
SNOW, LOWRY Attorneys on the Brief: Robert Theron Smith
SOCIETY FOR HUMANISTIC JUDAISM Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
SOUTH ASIAN AMERICANS LEADING TOGETHER Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
SOUTHWEST WOMEN'S LAW CENTER Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
ST. STEPHEN'S UNITED METHODIST CHURCH OF NORMAN, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
STANLEY, AMY DRU Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
STATE OF ALABAMA Attorneys on the Brief: Thomas Molnar Fisher, Luther Strange
STATE OF ALASKA Attorneys on the Brief: Thomas Molnar Fisher, Michael C. Geraghty
STATE OF ARIZONA Attorneys on the Brief: Thomas Molnar Fisher, Thomas C. Horne
STATE OF COLORADO Attorneys on the Brief: Thomas Molnar Fisher, John Suthers
STATE OF IDAHO Attorneys on the Brief: Thomas Molnar Fisher, Lawrence G. Wasden
STATE OF INDIANA Attorneys on the Brief: Thomas Molnar Fisher, Gregory F. Zoeller
STATE OF KANSAS Attorneys on the Brief: Jeffrey A. Chanay, Bryan Charles Clark
- 18 -

APPENDIX A
STATE OF MICHIGAN Attorneys on the Brief: Aaron Lindstrom, Bernard Eric Restuccia, Bill Schuette
STATE OF MONTANA Attorneys on the Brief: Thomas Molnar Fisher, Timothy C. Fox
STATE OF NEBRASKA Attorneys on the Brief: Jon Bruning, Thomas Molnar Fisher
STATE OF OKLAHOMA Attorneys on the Brief: Thomas Molnar Fisher, E. Scott Pruitt
STATE OF SOUTH CAROLINA Attorneys on the Brief: Thomas Molnar Fisher, Alan Wilson
STONEWALL BAR ASSOCIATION OF GEORGIA, INC. Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STONEWALL BAR ASSOCIATION OF MICHIGAN Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STONEWALL LAW ASSOCIATION OF GREATER HOUSTON Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STRAUB, D'ARCY WINSTON Attorneys on the Brief: D'Arcy Winston Straub
THE CENTER FOR URBAN RENEWAL AND EDUCATION Attorneys on the Brief: Stephen Kent Ehat
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
THE COALITION OF AFRICAN-AMERICAN PASTORS USA Attorneys on the Brief: Stephen Kent Ehat
THE EQUALITY NETWORK Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
- 19 -

APPENDIX A
THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION
Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
THE FREDERICK DOUGLASS FOUNDATION, INC. Attorneys on the Brief: Stephen Kent Ehat
THE OUTLAWS Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
THE SUTHERLAND INSTITUTE Attorneys on the Brief: William C. Duncan
THE UTAH PSYCHOLOGICAL ASSOCIATION Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith
THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA Attorneys on the Brief: Samuel P. Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
TRINITY CHRISTIAN CHURCH OF EDMOND, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
UNION FOR REFORM JUDAISM Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITARIAN UNIVERSALIST ASSOCIATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED CHURCH OF CHRIST Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
- 20 -

APPENDIX A
UNITED CHURCH OF NORMAN, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
UNIVERSITY OF OKLAHOMA COLLEGE OF LAW LEGAL GROUP FOR BUILDING TOLERANCE AND ACCEPTANCE
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
UPHAM, DAVID R. Attorneys on the Brief: David Robert Upham
UTAH COUNTIES Attorneys on the Brief: Jared W. Eldredge, Lynn Dennis Wardle
UTAH PRIDE CENTER Attorneys on the Brief: Troy L. Booher, Clifford J. Rosky, Noella A. Sudbury, Michael D. Zimmerman
VERMONT Attorneys on the Brief: Peter Sacks, William H. Sorrell
VOICES FOR UTAH CHILDREN Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
WASHINGTON Attorneys on the Brief: Robert W. Ferguson, Peter Sacks
WELKE, BARBARA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
WESTERN REPUBLICANS Attorneys on the Brief: Stacy A. Carpenter, Bennett L. Cohen, Jon R. Dedon, Sean Robert Gallagher
WILKEN, ROBERT LOUIS Attorneys on the Brief: Frank D. Mylar
- 21 -

APPENDIX A WINKLER, ADAM
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin WOLFE, CHRISTOPHER Attorneys on the Brief: Frank D. Mylar WOMEN OF REFORM JUDAISM Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai WOMEN'S LAW PROJECT Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin WOMEN'S LEAGUE FOR CONSERVATIVE JUDAISM Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai WOOD, PETER W. Attorneys on the Brief: Frank D. Mylar WORTHAM, DOUGLAS Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
- 22 -