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EXHIBIT ACOMPLAINT TIER II THREE SUMMONSES WITH PROOF OF SERVICE

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Erik Strindberg (Bar No. 4154) Lauren I. Scholnick (Bar No. 7776) Kathryn Harstad (Bar No. 11012) Rachel E. Otto (Bar No. 12191) STRINDBERG & SCHOLNICK, LLC 675 East 2100 South, Ste. 350 Salt Lake City, UT 84106 Telephone: (801) 359-4169 Facsimile: (801) 359-4313 erik@utahjobjustice.com lauren@utahjobjustice.com kass@utahjobjustice.com rachel@utahjobjustice.com
Attorneys for Plaintiffs

John Mejia (Bar No. 13965) Leah M. Farrell (Bar No. 13696) ACLU of Utah 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: jmejia@acluutah.org lfarrell@acluutah.org
Joshua A. Block* ACLU LGBT Project 125 Broad Street, Floor 18 New York, New York, 10004 Telephone: (212) 549-2593 Facsimile: (212) 549-2650 jblock@aclu.org
*Pro hac vice motion to follow

IN THE THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH SALT LAKE COUNTY, WEST JORDAN DEPARTMENT

JONELL EVANS, STACIA IRELAND, MARINA GOMBERG, ELENOR HEYBORNE, MATTHEW BARRAZA, TONY MILNER, DONALD JOHNSON, and CARL FRITZ SHULTZ,
Plaintiffs,
vs.
STATE OF UTAH, GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity,
Defendants.

COMPLAINT TIER 2
Case No. Judge

Plaintiffs JoNell Evans, Stacia Ireland, Marina Gomberg, Elenor Heyborne, Matthew Barraza, Tony Milner, Donald Johnson and Carl Fritz Shultz (collectively referred to as the

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“Plaintiffs”) by and through their undersigned attorneys, hereby file this Complaint against the State of Utah, Governor Gary Herbert (“Governor Herbert”) and Attorney General Sean Reyes (“Attorney General Reyes”) (Defendants will collectively be referred to as “Defendants” or “State of Utah”):
NATURE OF THE CLAIMS 1. Plaintiffs are four same-sex couples who were legally married in Utah between December 20, 2013, and January 6, 2014, the period from the day a federal district court in Kitchen v. Herbert enjoined Utah from enforcing its statutory and constitutional bans on allowing same-sex couples to marry to the day that injunction was stayed pending appeal. The moment Plaintiffs solemnized their marriages in accordance with Utah law, they immediately obtained vested rights in the validity and recognition of their marriages under Utah law. Those vested rights are protected by the Due Process Clauses of the Utah and United States Constitutions and must be recognized regardless of the ultimate outcome of the Kitchen litigation. 2. In violation of those constitutional protections, the State of Utah has unilaterally decided to place recognition of these valid marriages “on hold.” By retroactively stripping Plaintiffs’ marriages of legal recognition, the State of Utah has put these couples and their families in legal limbo and prevented legally married same-sex couples from accessing critical protections for themselves and their children. 3. Plaintiffs seek to have the Court declare that their valid marriages must be given immediate and ongoing recognition by the State of Utah and grant all injunctive relief necessary to ensure that recognition.
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BACKGROUND FACTS 4. In 1977, the Utah Legislature amended Section 30-1-2 of the Utah Code to “prohibit[] and declare[] void” marriages “between persons of the same sex” (the “Marriage Limitation Statute”). 5. In 2004, the Utah Legislature added Section 30-1-1.4 to the Utah Code, which reads “the policy of this state [is] to recognize as marriage only the legal union of a man and a woman,” and “this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties [to same sex-couples] that are substantially equivalent to those provided under Utah law to a man and woman because they are married” (the “Marriage Recognition Statute”). 6. Also in 2004 the Utah Legislature passed a “Joint Resolution of Marriage” proposing to amend the Utah Constitution by adding Article I, Section 29, to read: “(1) Marriage consists of only the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” 7. This proposed amendment, known as “Amendment 3,” was on the ballot in the November 2, 2004 general election. Amendment 3 passed and became effective on January 1, 2005. 8. On March 25, 2013, three same-sex couples living in Utah filed a lawsuit in the Federal District Court for the District of Utah against Governor Gary Herbert, then-Utah Attorney General John Swallow, and Salt Lake County Clerk Sherrie Swensen, all acting in their
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official capacities. See Kitchen v. Herbert, 2:13-cv-217 RJS (D. Utah) (referred to herein as Kitchen).
9. The plaintiffs in Kitchen asserted that Amendment 3 and the Marriage Limitation and Recognition Statutes violated the Equal Protection and Due Process Clauses of the U.S. Constitution. The plaintiffs sought declaratory relief that Amendment 3 and the Marriage Limitation and Recognition Statutes are unconstitutional under the Constitution. The parties filed cross-motions for summary judgment.
10. On December 20, 2013, the U.S. District Court in Kitchen denied the defendants’ motion for summary judgment, granted plaintiffs’ motion for summary judgment, and issued a permanent injunction barring Utah officials from enforcing Amendment 3 and the Marriage Limitation and Recognition Statutes. (Attached as Ex. A).
11. The Memorandum Decision and Order by the Kitchen court concluded as follows: 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. 12. The county clerks for Salt Lake County and Washington County began to issue marriage licenses to same-sex couples that same day, in accordance with the Kitchen court’s injunction. Many same-sex couples promptly obtained marriage licenses and solemnized their marriages that same day.
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13. Governor Herbert and the acting Utah Attorney General then filed motions with the U.S. District Court and with the U.S. Court of Appeals for the Tenth Circuit to stay the district court’s order, pending appeal.
14. On December 22, 2013, the U.S. Court of Appeals for the Tenth Circuit denied Governor Herbert and the acting Utah Attorney General’s motion for a stay without prejudice for failing to “meet the requirements of the Federal or local appellate rules.”
15. On December 23, 2013, Governor Herbert and the acting Utah Attorney General filed a second motion to stay the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit denied the second motion the same day.
16. On December 23, 2013, the U.S. District Court also denied defendants’ motion for a stay of the December 20 injunction. The District Court stated in its written Order denying the motion that “The court’s Order [of December 20] 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.”
17. On December 23, 2013, following the U.S. District Court’s denial of a stay, Governor Herbert and the acting Utah Attorney General filed a third motion with the U.S. Court of Appeals for the Tenth Circuit to stay the district court’s order.
18. As of December 23, 2013, officials in seven counties in Utah had either closed their offices or were publicly refusing to issue marriage licenses to same-sex couples, while officials in the other 22 counties publicly stated that they would. (See Utah counties split on issuing same-sex marriage licenses, Salt Lake Trib., Dec. 23, 2013, accessible at http://www.sltrib.com/sltrib/news/57302939-78/counties-county-couples-issuing.html.csp.)
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19. On December 24, 2013, Governor Herbert’s office sent an email to his cabinet with the following directive: “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.” (Attached as Ex. B.)
20. Also on December 24, 2013, a spokesman for the Utah Attorney General’s Office publicly stated that county clerks who did not issue licenses could be held in contempt of the court and the law. (See Denying same-sex marriage licenses illegal, says A.G. office, Salt Lake Trib., Dec. 24, 2013, accessible at http://www.sltrib.com/sltrib/news/57306295-78/county-sexmarriage-office.html.csp.)
21. Later that day, also on December 24, 2013, the U.S. Court of Appeals for the Tenth Circuit for the third time denied Governor Herbert and the acting Utah Attorney General’s motion for a stay.
22. By December 26, 2013, officials in 28 of Utah’s 29 counties stated that they would issue marriage licenses to same-sex couples. (See Same-sex couples shatter marriage records in Utah, Salt Lake Trib., Dec. 26, 2013, accessible at http://www.sltrib.com/sltrib/mobile/57310957-68/marriages-sex-county-total.html.csp.)
23. An official in Piute County, the one county that was not making public statements on December 26, 2013 about whether it would issue licenses, later stated that the county had decided to issue same-sex licenses on December 24, 2013, but had received no applications. (Utah issues hundreds of marriage licenses to gay couples, Associated Press, Dec. 28, 2013, accessible at http://www.krextv.com/story/utah-issues-hundreds-of-marriage-licenses-to-gaycouples-20131228.)
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24. Governor Herbert and Attorney General Reyes waited until December 31, 2013 to file a request for a stay of the district court’s order with the U.S. Supreme Court.
25. Between December 20, 2013 and January 6, 2014, it is estimated that over 1,300 same sex couples were issued Utah marriage licenses. (Same-sex couples denied Utah marriage licenses in court order’s wake, Salt Lake Trib., Jan. 6, 2014, accessible at http://www.sltrib.com/sltrib/news/57357867-78/county-marriage-couple-sex.html.csp.)
26. While there are no reported counts of how many of those granted licenses solemnized their marriages before January 6, 2014, on information and belief, over 1,000 samesex couples solemnized their marriages before that date. It is reported that all but seven counties in Utah issued at least one marriage license to a same-sex couple during that period. (Id.)
27. On January 6, 2014, the United States Supreme Court ruled on Governor Herbert and Attorney General Reyes’s motion in Kitchen and issued the following Order:
“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.” 28. The Supreme Court’s Order staying the Kitchen court’s decision did not address the legal status of the marriages that same-sex couples entered into in Utah between December 20, 2013, and January 6, 2014. 29. That same day, January 6, 2014, Attorney General Reyes issued a statement that reads in part, “Utah’s Office of Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally.” (Attached as Ex. C.)
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30. On January 8, 2014, Governor Herbert’s chief of staff issued an email to the Governor’s cabinet members instructing them to refuse to grant recognition to same-sex couples married pursuant to Utah marriage licenses (the “Directive”). (Attached as Ex. D.)
31. The Directive begins by stating that soon after the December 20, 2013 injunction, “this office sent an email to each of you soon after the district court decision, directing compliance” with that order. (Id.)
32. The Directive explained that the Supreme Court had stayed the Kitchen order and stated that “[b]ased on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice.” (Id.)
33. The Directive then stated that its recipients should “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.” (Id.)
34. The Directive went on to give the following instruction to state agencies: 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. (Id.) 35. On January 9, 2014, Attorney General Reyes issued a letter to county attorneys and county clerks which states that he seeks to provide “legal clarification about whether or not to mail or otherwise provide marriage certificates to persons of the same sex whose marriage
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ceremonies took place between December 20, 2013 and January 6, 2014, prior to the issuance of the stay by the U.S. Supreme Court.” (Attached as Ex. E.)
36. Attorney General Reyes continued that “[a]lthough 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.” (Id., emphasis added.)
37. Attorney General Reyes further indicated that the State of Utah would not challenge the validity of those marriages for the purposes of recognition by the federal government or other states, nonetheless “the validity of the marriages in question must ultimately be decided by the legal appeals process presently working its way through the courts.” (Id.)
38. Attorney General Reyes also explained that “the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law” and “would allow, for instance, same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage.” (Id.)
39. On January 15, 2014, the Utah State Tax Commission issued a notice stating that same-sex couples “may file a joint return if they [were] married as of the close of the tax year” for 2013 because “[a]s of December 31, 2013, the Supreme Court had not yet issued its stay of the District Court’s injunction.” (Attached as Ex. F.)
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40. The notice further states: “This notice is limited to the 2013 tax year. Filing information for future years will be provided as court rulings and other information become available.” (Id.)
PLAINTIFFS Marina Gomberg and Elenor Heyborne
41. Plaintiffs Marina Gomberg and Elenor Heyborne were both born and raised in Utah. Ms. Gomberg was raised in a Jewish family in Ogden, and Ms. Heyborne comes from an LDS family in Salt Lake City.
42. Ms. Gomberg and Ms. Heyborne met nine years ago through mutual friends, and have been in a committed relationship ever since.
43. Ms. Gomberg and Ms. Heyborne both work in communications and Ms. Heyborne is a State employee.
44. Ms. Gomberg and Ms. Heyborne had a commitment ceremony in May 2009 but the State did not recognize their union or afford them any of the rights of married couples.
45. For the last couple of years they have been contemplating having a baby, but they are worried about protecting their family because the State will only allow one of them to be a legal parent to any children they have together. They had hoped being legally married would resolve this concern.
46. Within an hour of learning of the Kitchen decision, Ms. Gomberg and Ms. Heyborne rushed to the Salt Lake County building to obtain their marriage license and solemnized their marriage that same day. They were thrilled that their State was finally going to sanction their union and recognize their marriage.
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47. Although they have supportive and loving family and friends, once they were legally married, Ms. Gomberg and Ms. Heyborne realized how anxious they had been in what the State considered a second-class relationship. The disadvantageous tax status, lack of guaranteed hospital visitation, and inability to both be legal guardians of their future children had created an enormous emotional weight, which was lifted by their legal marriage.
48. The State’s refusal to continue to recognize their marriage raises again all their concerns and anxiety.
49. Despite the fact that Ms. Gomberg and Ms. Heyborne feel disregarded and insulted by the State, it rankles them when people suggest they move elsewhere. They are committed to their community in Utah – they have jobs, family, and friends here. They are hoping to raise a family in the State they grew up in and continue to love. Matthew Barraza and Tony Milner
50. Plaintiffs Matthew Barraza and Tony Milner have been in a committed and loving relationship for nearly 11 years.
51. Mr. Barraza is an attorney and Mr. Milner is the executive director of a non-profit organization serving homeless families.
52. Mr. Barraza and Mr. Milner are lifelong Utahns. Mr. Milner was born and raised in an LDS family in West Jordan. Mr. Barazza, one of six siblings, was born in California but his family, who are also LDS, moved to Ogden when he was one year old.
53. In 2007, Mr. Barraza and Mr. Milner held a religious commitment ceremony officiated by their pastor, Erin Gilmore of Holladay United Church of Christ, and have since referred to themselves as husbands and married. But this commitment was not recognized by the
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State of Utah. 54. Mr. Barraza and Mr. Milner had been contemplating starting a family when, in
2009, a struggling couple they knew who were expecting a baby approached them and asked if they would consider adopting the child. Mr. Barraza and Mr. Milner were overjoyed by the prospect of welcoming a child into their family. They attended all of the birth mother’s prenatal appointments with her and attended the birth, where Mr. Milner got to cut their son’s umbilical cord.
55. Their son, “J.,” is now four years old. Although Mr. Barraza and Mr. Milner have raised J. from birth, only one of them was able to adopt J. and establish legal parentage under Utah law. Mr. Barraza is the adoptive parent, which means that Mr. Milner is treated as a legal stranger to their son, and if something were to happen to Mr. Barraza, J. could potentially be placed in foster care.
56. In 2010, Mr. Barraza and Mr. Milner traveled to Washington, D.C., to get married. Although they were legally married in D.C., Amendment 3 prevented them from having their marriage recognized in Utah.
57. Even though that marriage was not recognized by the State, they chose to remain in Utah where they have tremendous family and community support. They want to continue to live, work and raise their son here.
58. When they heard that Amendment 3 was ruled unconstitutional, Mr. Barraza and Mr. Milner were thrilled to finally have all of the legal protections that come with marriage. Most importantly, their marriage would allow Mr. Milner to establish legal parentage with J. through a second-parent adoption. They wanted to give J. the security of having two legal
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parents, and they wanted the peace of mind knowing that if something were to happen to Mr.

Barraza, J. would have another legally recognized parent who could care and provide for him.

59. On December 20, 2013, Mr. Barraza and Mr. Milner obtained a Utah marriage

license and were married by Pastor Tom Nordberg of Holladay United Church of Christ that

same day.

60. Immediately after Christmas, on December 26, 2013, Mr. Barraza and Mr.

Milner initiated proceedings in the court for Mr. Milner to adopt their son. They received a

hearing date of January 10, 2014.

61. On January 9, 2014, however, the court contacted Mr. Barraza and Mr. Milner

and informed them that because of the stay in Kitchen, and because of Governor Herbert’s and

Attorney General Reyes’s announcements to State agencies to not recognize same-sex marriages,

the court had decided that it should provide notice of the adoption proceedings to the Attorney

General’s office so that the Attorney General could intervene.

62. Faced with the potential that the State could attempt to thwart J.’s adoption, Mr.

Barraza and Mr. Milner requested that the court continue the hearing to January 31, 2014.

63. At this point, Mr. Barraza and Mr. Milner will have to put the proceedings

completely on hold until they are sure that Mr. Milner can adopt J. without State interference.

64. The State’s refusal to recognize their legal marriage has again destroyed the peace

of mind they would have received by providing J. two legal parents.

JoNell Evans and Stacia Ireland

65. Plaintiffs JoNell Evans, 61 years old, and Stacia Ireland, 60 years old, have been

in a committed relationship for 13 years.

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66. Ms. Ireland taught math to junior high and high school students for 30 years before semi-retiring. She now works part-time at a community college helping students with disabilities.
67. Ms. Evans is an artist and a human resources director for a non-profit organization.
68. Ms. Evans and Ms. Ireland have lived in Utah their entire adult lives. Their home is located on property in West Valley City that has been in Ms. Evans’s family for generations. Much of their family lives in the same neighborhood.
69. In 2007, Ms. Evans and Ms. Ireland affirmed their commitment with a religious marriage ceremony at the Unitarian Church in Salt Lake City. But their commitment was not recognized by the State of Utah.
70. In 2008, Ms. Evans and Ms. Ireland had wills and medical powers of attorney drawn up. They knew other same-sex couples who had been treated as legal strangers by hospitals, and they wanted to ensure this would not happen to them, should either of them be hospitalized.
71. In 2010, Ms. Ireland suffered a heart attack. Before they left for the hospital, Ms. Evans scrambled to locate a copy of Ms. Ireland’s power of attorney. With documents in hand, the hospital tolerated Ms. Evans’s insistence that she stay by Ms. Ireland’s side during her treatment, but the hospital did not treat Ms. Evans like it would a spouse. As Ms. Evans describes it, “It felt like I wasn’t even in the room.”
72. On December 20, 2013, Ms. Evans learned of the Kitchen decision. She rushed to the Salt Lake County building and called Ms. Ireland to meet her there. After standing in line for
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a few hours, the couple received their marriage license, and Salt Lake City Mayor Ralph Becker solemnized their marriage. They were surrounded by other couples and friends, all there to celebrate the right of same-sex couples to finally marry. The only downside to the whirlwind wedding was that their families could not make it there to witness their ceremony.
73. On January 1, 2014, Ms. Evans again had to rush Ms. Ireland to the emergency room because Ms. Ireland was experiencing severe chest pains. Prior to their visit, Ms. Ireland had informed the hospital that she had married Ms. Evans and during their stay in the hospital, Ms. Evans was afforded all the courtesies and rights given to the married spouse of a patient. For example, the hospital allowed Ms. Evans to sign paperwork for Ms. Ireland and consulted with her on all aspects of Ms. Ireland’s treatment.
74. On the day after Governor Herbert directed State agencies to no longer recognize the marriages of same-sex couples in Utah, Ms. Ireland had to return to the hospital for a followup procedure. Once again, they had to face uncertainty and anxiety that the hospital would treat Ms. Evans like a non-entity instead of a spouse.
75. Ms. Evans and Ms. Ireland now worry that during any future emergency hospital visits, and even during routine care, they will no longer be afforded the same protections as other married couples. Donald Johnson and Carl Fritz Shultz
76. Plaintiffs Donald Johnson and Carl Fritz Shultz met in 1992, and have been “best friends and partners” for over 21 years.
77. Mr. Johnson was born and raised in Utah, attended the University of Utah, and has taught special education high school juniors and seniors in the same school district for 37
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years. 78. Mr. Shultz was raised in southern Idaho and attended Idaho State University. He
came to Utah to begin his career in retail sales. 79. Mr. Johnson and Mr. Shultz started dating around Labor Day in 1992. After
having to spend Thanksgiving apart that year, they both realized that they wanted to spend their lives together. When Mr. Shultz returned from his family trip, Mr. Johnson proposed to him. They have celebrated the Sunday after Thanksgiving as their anniversary ever since.
80. Mr. Johnson and Mr. Shultz have been a vital and important part of their closeknit neighborhood for many years. They describe themselves as the “neighbors who lend a hand” when it is needed. They love taking care of their neighbors’ dogs, and keeping an eye on neighbors’ houses when they go on vacation. Mr. Johnson and Mr. Shultz are always pitching in to shovel neighbors’ walks and mow lawns.
81. On the Saturday morning after the Kitchen decision, Mr. Johnson and Mr. Schultz were sitting at breakfast when Mr. Shultz reached over the table, took Mr. Johnson’s hand, and suggested they get married.
82. Mr. Johnson and Mr. Shultz had been considering going to California to marry, but were elated to be able to marry in their home state.
83. On December 22, 2013, Mr. Johnson got up at midnight, put on a suit, and went to stand in line at the Salt Lake County building at 2 a.m. Mr. Shultz joined him at 6 a.m. They finally got their marriage license at around 10 a.m. on December 23, 2013, and solemnized their marriage immediately.
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juniors and seniors and tell them that he had married his partner of 21 years over the holidays and that “yes, indeed, [he] was a gay man” meant he no longer had to hide who he is and made him immensely proud and happy. When he told them, Mr. Johnson’s students burst into applause for him.
85. Now that the State of Utah has refused to continue to recognize same-sex marriages, Mr. Johnson and Mr. Shultz feel that they have again been relegated to second-class citizenship in their own state.
86. Mr. Johnson is 61 years old, and Mr. Shultz is 58 years old. Mr. Johnson researched insurance coverage for himself and Mr. Shultz and discovered that they could have access to savings of approximately $8,000 per year on health insurance that they will lose without State recognition of their marriage.
FIRST CAUSE OF ACTION (Deprivation of Plaintiffs’ Property and Liberty Interests without Due Process in
Violation of the Utah Constitution) 87. Plaintiffs reallege and incorporate by reference the allegations set forth above. 88. After the December 20, 2013 Kitchen ruling, Plaintiffs and other same-sex couples were legally permitted to marry in the State of Utah. 89. To perfect that legal right, Plaintiffs completed each step required by the state of Utah under Utah Code Title 30 Chapter 1: They acquired valid marriage licenses from a county clerk and solemnized their marriages before an authorized person who then returned the license and marriage certificate to the county clerk. Upon information and belief, the county clerk then filed and preserved the license and certificate.
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90. The validity of those marriages was contemporaneously recognized by the State of Utah as evidenced by an email from Governor Herbert’s office to his cabinet dated December 24, 2013, in which his office directed them to comply “with the federal judge’s ruling until such time that the current district court decision is addressed by the 10th Circuit Court.” The State of Utah’s contemporaneous recognition of these marriages is further evidenced by a statement made by the Attorney General’s Office that same day warning county officials that denying same sex couples marriage licenses could constitute contempt of the court and the law.
91. The validity of those marriages, including Plaintiff’s marriages at the time they were solemnized, was further recognized by the State of Utah in another email from Governor Herbert’s office to his cabinet dated January 8, 2014, in which his office stated, in part, “[a]fter 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.”
92. The validity of those marriages, including Plaintiffs’ marriages, was also recognized and acknowledged the next day when Attorney General Reyes directed the county clerks to provide a marriage certificate to all couples whose marriage was performed between December 20, 2013, and January 6, 2014.
93. Further recognition of those marriages, including Plaintiffs’ marriages, occurred on January 15, 2013, when the Utah State Tax Commission issued a notice that same-sex couples could file as married for the 2013 tax year if they were married as of December 31, 2013.
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94. By properly availing themselves of their legal right to marry and completing the necessary steps to solemnize their marriages, Plaintiffs – like any legally married different-sex couples – acquired certain property and liberty interests under Utah law attendant upon and arising from their marriages.
95. Those interests are fundamental and encompass a panoply of rights. These interests have been described by the U.S. Supreme Court, in discussing the liberty interest protected by the U.S. Constitution, as the right to establish a home, raise children, and enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free persons. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
96. Plaintiffs’ vested rights in the recognition of their marriages do not depend on the ultimate outcome of the Kitchen litigation in federal court. Whether or not the U.S. District Court’s decision in Kitchen is ultimately affirmed, Plaintiffs obtained vested rights in the validity and recognition of their marriages once those marriages were solemnized in accordance with Utah law.
97. Article I, Section 7 of the Utah Constitution guarantees that “[n]o person shall be deprived of life, liberty or property, without due process of law.” Because those liberty and property interests and rights vested once the Plaintiffs were married, they are subject to the protections of Article 1, Section 7 and thereafter, the State of Utah could not interfere with those rights, or otherwise interfere in the Plaintiffs’ marriages.
98. Nonetheless, on January 7, 2014, Governor Herbert, on advice of Attorney General Reyes, directed his Cabinet to place “on hold” recognition of same-sex marriages,
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including those of Plaintiffs, who had already completed the legal requirements required by the State of Utah and therefore were validly married under then-existing law.
99. By taking this action, and retroactively stripping Plaintiffs’ marriages of legal recognition, the State of Utah acted without legal authority and deprived Plaintiffs, and all other same-sex couples who had been legally married, of those liberty and property rights and interests protected by Article 1, Section 7 of the Utah Constitution.
100. By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of all same-sex married couples, including Plaintiffs and their families and children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives. For example, they may be unable to obtain health insurance for their spouses and children, may not be able to make medical decisions about their spouses and family members if the need arises, may not complete stepparent adoptions to protect the legal status of their families, and if the biological parent of their child or children dies, may not be able to retain custody of their children, who may be placed into foster care.
101. This uncertainty leaves Plaintiffs in a constant state of insecurity and uncertainty that is emotionally devastating. And because their marriages are valid and must be recognized regardless of the outcome of the Kitchen appeal, and because the Directive is indefinite in nature, this state of insecurity may last for years.
102. The State of Utah’s actions also imposed immediate dignitary harm on married same-sex couples and their families, including Plaintiffs, by creating second-class marriages in Utah that do not enjoy the rights and privileges of different-sex marriages. Like the law struck down in United States v. Windsor, 133 S. Ct. 2675 (2013), the State of Utah’s decision to place
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same-sex couples’ marriages “on hold” “deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities.” Id. at 2694. “By this dynamic [the Governor’s Directive] undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [Utah’s] recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. . . .And it humiliates [the] children now being raised by same-sex couples.” Id.
103. As a result, Plaintiffs have been injured and are entitled to declaratory, injunctive, and equitable relief as set forth in the Prayer for Relief.
SECOND CAUSE OF ACTION (Deprivation of Plaintiffs’ Property and Liberty Interests Protected by The United States Constitution in Violation of 42 U.S.C. § 1983 – Against Defendants
Governor Herbert and Attorney General Reyes) 104. Plaintiffs reallege and incorporate by references the paragraphs set forth above. 105. After the December 20, 2013, ruling Plaintiffs were legally permitted to marry in Utah. 106. To perfect that legal right, Plaintiffs completed each step required by the State of Utah under Utah Code Title 30 Chapter 1: They acquired valid marriage licenses from a county clerk; solemnized their marriages before an authorized person who then returned the license and marriage certificate to the county clerk; and, upon information and belief, the county clerk then filed and preserved the license and certificate. 107. The validity of those marriages, including Plaintiffs’ marriages, was recognized by the State of Utah as evidenced by an email from Governor Herbert’s office to his cabinet
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dated December 24, 2013, in which his office directed them to comply “with the federal judge’s

ruling until such time that the current district court decision is addressed by the 10th Circuit

Court.” It was further evidenced by a statement made by the Utah Attorney General’s Office

that same day that warned county clerks denying same sex couples marriage licenses could

constitute contempt of the court and the law.

108. The validity of those marriages, including Plaintiffs’ marriages, at the time they

were solemnized, was further recognized by the State in another email from Governor Herbert’s

office to his cabinet dated January 8, 2014, in which his office stated, in part, “[a]fter 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.”

109. Further recognition of the validity of those marriages, including Plaintiffs’

marriages, also occurred the next day when Attorney General Reyes directed the county clerks to

provide a marriage certificate to all couples whose marriage was performed between December

20, 2013, and January 6, 2014.

110. Further recognition of those marriages, including Plaintiffs’ marriages, occurred

on January 15, 2013, when the Utah State Tax Commission issued a notice that same-sex couples

could file as married for the 2013 tax year if they were married as of December 31, 2013.

111. By properly availing themselves of their legal right to marry and completing the

necessary steps to solemnize their marriages, Plaintiffs – like any legally married different-sex

couples – acquired certain property and liberty interests under Utah law attendant upon and

arising from their marriages.

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112. Those interests are fundamental and encompass a panoply of rights. These have been described by the U.S. Supreme Court, in discussing the liberty interest protected by the U.S. Constitution, as the right to establish a home, raise children, and enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free persons. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
113. Plaintiffs’ vested rights in the recognition of their marriages do not depend on the ultimate outcome of the Kitchen litigation in federal court. Whether or not the U.S. District Court’s decision in Kitchen is ultimately affirmed, Plaintiffs obtained vested rights in the validity and recognition of their marriages once those marriages were solemnized in accordance with Utah law.
114. 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.
115. Nonetheless, on January 7, 2014, Governor Herbert, on advice of Attorney General Reyes, directed his Cabinet place “on hold” recognition of same-sex marriages, including those of Plaintiffs and not to afford them any of the protections that the State will continue to afford to different-sex couples who were married during the same period.
116. By taking this action, and retroactively stripping Plaintiffs’ marriages of legal recognition, the State of Utah acted without legal authority and deprived Plaintiffs, who had been legally married, of those liberty and property rights and interests protected by the Due Process Clause of the Fourteenth Amendment.
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117. By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of Plaintiffs’ families, including their children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives. For example, they may be unable to obtain health insurance for their spouses and children, will not be able to make medical decisions about their spouses and family members if the need arises, may not complete stepparent adoptions to protect their families, and if the biological parent of their child or children dies, may not be able to retain custody of their children, who may be placed into foster care.
118. This uncertainty leaves Plaintiffs in a constant state of insecurity and uncertainty which is emotionally devastating, and which is likely to significantly and negatively impact them, their spouses, and their children in a multitude of ways. And because these marriages are valid and must be recognized regardless of the outcome of the Kitchen appeal, and because the Directive is indefinite in nature, this state of insecurity may last for years.
119. The State of Utah’s actions also imposed immediate dignitary harm on married same sex couples and their families by creating second-class marriages that do not enjoy the rights and privileges of different-sex marriages. Like the law struck down in United States v. Windsor, 133 S. Ct. 2675 (2013), Utah’s decision to place same-sex couples’ marriages “on hold” “deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities.” Id. at 2694. “By this dynamic [the Governor’s Directive] 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
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[Utah’s] recognition. This places same-sex couples in an unstable position of being in a secondtier marriage. . . .And it humiliates [the] children now being raised by same-sex couples.” Id.
120. At all times, the Defendants were acting under color of state law when committing the complained of acts. In addition, the Governor is the final policy making authority for the State of Utah and exercised that authority in violating Plaintiffs’ constitutional rights.
121. As a result, Plaintiffs have been injured and are entitled to declaratory, equitable, and injunctive relief pursuant to 42 U.S.C. § 1983. Plaintiffs are also entitled to recover their attorney’s fees and costs incurred in bringing this action pursuant to 42 U.S.C. § 1988.
THIRD CAUSE OF ACTION (Relief under Rule 65B)
122. Plaintiffs reallege and incorporate by reference the paragraphs set forth above. 123. Rule 65B of the Utah Rules of Civil Procedure allows a person to seek extraordinary relief from acts involving the wrongful use of public authority, or when a governmental official has failed to perform an act required by law, “where no other plain, speedy and adequate relief is available.” 124. More specifically, under subpart (c)(2)(A) of Rule 65B, relief may be granted when a government employee engages in the wrongful use of his public authority. This includes “where a person usurps, intrudes into, or unlawfully holds or exercises a public office . . .” (emphasis added).
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125. Appropriate relief may also be granted under subpart (d)(2): “(B) where an inferior court, administrative agency, corporation, or persons has failed to perform an act required by law as a duty of office, trust or station . . . ”
126. As set forth above, each of Plaintiff couples obtained marriage licenses as required by, and in conformance with, Utah Code Ann. § 30-1-7. Thereafter, each Plaintiff couple had their marriages solemnized within 30 days in front of a person authorized by statute to solemnize their marriage, and otherwise fully complied with, Utah Code Ann.§ 30-1-6.
127. Each of Plaintiffs’ marriages was complete and valid and they were thereafter entitled to all of the rights, benefits and privileges afforded to married couples, as well as being subject to all obligations and responsibilities attendant upon married couples.
128. The validity of those marriages was recognized by the State of Utah as evidenced by an email from the Governor to his cabinet dated December 24, 2013; in another email dated January 8, 2014; when the Attorney General directed the county clerks to provide marriage certificates to Plaintiffs and other same-sex couples; and when the Utah State Tax Commission issued a notice that same-sex couples could file as married for the 2013 tax year if they were married as of December 31, 2013.
129. Notwithstanding that Plaintiffs have fully complied with the requirement of Utah Code Ann.§ 30-1-1, et seq., and are now validly married under the laws of Utah, the State of Utah now refuses to “recognize” those marriages, or provide Plaintiffs with any of the protections and responsibilities attendant upon and to all other valid marriages.
130. By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of Plaintiffs’ families, including their children, in legal limbo, which creates
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uncertainty as to their rights and status in virtually all areas of their lives. For example, they may be unable to obtain health insurance for their spouses and children, will not be able to make medical decisions about their spouses and family members if the need arises, and if the biological parent of their child or children dies, may not be able to retain custody of their children, who may be placed into foster care.
131. This uncertainty leaves Plaintiffs in a constant state of insecurity and uncertainty which is emotionally devastating, and which is likely to significantly and negatively impact them, their spouses, and their children in a multitude of ways. And because these valid marriages must be recognized regardless of the outcome of the Kitchen appeal, and because the Directive is indefinite in nature, this state of insecurity may last for years.
132. By taking this action, and retroactively stripping plaintiffs’ marriages of legal recognition, the State of Utah acted without legal authority, arbitrarily and capriciously, and deprived Plaintiffs, and all other same-sex couples who had been legally married, of those liberty and property rights and interests protected by Article 1, Section 7 of the Utah Constitution and the Due Process Clause of the Fourteenth Amendment.
133. Plaintiffs and their families have been injured by the illegal conduct of the Defendants, and will continue to be injured until the State of Utah recognizes their marriages. Plaintiffs are accordingly entitled to the relief detailed in the Prayer for Relief.
134. Plaintiffs have no other plain, speedy, and adequate remedy available as to the issues raised in this Complaint because Plaintiffs’ vested rights in the recognition of their marriages do not depend on the ultimate outcome of the Kitchen litigation in federal court. Whether or not the U.S. District Court’s decision in Kitchen is ultimately affirmed, Plaintiffs
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obtained vested rights in the validity and recognition of their marriages once those marriages were solemnized in accordance with Utah law.
135. Plaintiffs request that if this Court cannot resolve this matter based on the pleadings that it issue an order requiring the parties to appear at an expedited hearing on the merits as provided for under Rule 65B(d)(3).
FOURTH CAUSE OF ACTION (Declaratory Judgment)
136. Plaintiffs reallege and incorporate by reference the paragraphs set forth above. 137. Pursuant to Utah Code Ann. § 78B-6-401(1) this Court has the authority to issue a declaratory judgment that determines the “rights, status and other legal relations within its respective jurisdiction.” Further, that declaration may be either affirmative or negative in form and effect. Utah Code Ann. § 78B-6-401(2). 138. A person whose rights, status, and legal relations are affected by a statute may also request that “the district court to determine any question of construction or validity arising under that . . . statute” and “obtain a declaration of rights, status or other legal relations.” Utah Code Ann. § 78B-6-401(2). 139. Importantly, the Utah Legislature has mandated that the declaratory judgment act must be liberally construed. Utah Code Ann. § 78B-6-412 reads as follows: This chapter is to be remedial. Its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.
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140. As set forth above, Plaintiffs fully complied with the requirements of Utah law regarding marriage, and therefore have valid marriages according to Utah law. In addition, the State of Utah recognized those marriages as valid at the time they were performed.
141. Notwithstanding the validity of those marriages and the prior recognition given to them by the State of Utah, the State of Utah has now unilaterally declared that it will no longer recognize those marriages or afford Plaintiffs the protections and responsibilities that it legally affords to all other married couples.
142. By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of Plaintiffs’ families, including their children, in legal limbo, which creates uncertainty as to their rights and status in virtually all areas of their lives. For example, they may be unable to obtain health insurance for their spouses and children, will not be able to make medical decisions about their spouses and family members if the need arises, and if the biological parent of their child or children dies, may not be able to retain custody of their children, who may be placed into foster care.
143. This uncertainty leaves Plaintiffs in a constant state of insecurity and uncertainty which is emotionally devastating, and which is likely to significantly and negatively impact them, their spouses, and their children in a multitude of ways. And because these valid marriages must be recognized regardless of the outcome of the Kitchen appeal, and because the Directive is indefinite in nature, this state of insecurity may last for years.
144. By taking this action, and retroactively stripping plaintiffs’ marriages of legal recognition, the State of Utah acted without legal authority, arbitrarily and capriciously, and deprived Plaintiffs and all other same-sex couples who had been legally married of those liberty
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and property rights and interests protected by Article 1, Section 7 of the Utah Constitution and

the Due Process Clause of the Fourteenth Amendment.

145. Plaintiffs seek a declaration from the Court that because their marriages are valid

under Utah Code Ann. § 30-1-1, et seq., and have been previously recognized by the State of

Utah, that:

a. The State of Utah must continue to recognize the marriages by all same-

sex couples entered into pursuant to Utah marriage licenses issued

between December 20, 2013, and January 6, 2014, including Plaintiffs’

marriages, and afford those couples and their families with all of the

protections and responsibilities given to married couples under Utah law.

b. The State must withdraw its Directive not to recognize the marriages by

all same-sex couples entered into pursuant to Utah marriage licenses

issued between December 20, 2013, and January 6, 2014, including

Plaintiffs’ marriages, and must in all respects treat and recognize them as

married.

c. The reimplementation of Amendment 3, the Marriage Limitation Statute,

the Marriage Recognition Statute, and any other statute preventing same-

sex couples from marrying does not retroactively strip recognition from

the same-sex marriages entered into pursuant to Utah marriage licenses

issued between December 20, 2013 and January 6, 2014, or otherwise

impair the protections and responsibilities that such marriages are subject

to under Utah law.

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146. Plaintiffs also request that the court award them the costs they incurred in bringing this action, pursuant to Utah Code Ann. § 78B-6-411.
PRAYER FOR RELIEF Wherefore, Plaintiffs pray for the following relief: A. A declaratory judgment stating that because the marriages by same-sex couples
entered into pursuant to Utah marriage licenses issued between December 20, 2013, and January 6, 2014, including Plaintiffs’ marriages, are valid under U.C.A. §30-1-1, et seq., and have been previously recognized by the State of Utah, that the State of Utah must continue to recognize those marriages, and afford those couples, including Plaintiffs, and their families with all of the protections and responsibilities given to all married couples under Utah law. B. An injunction ordering the State of Utah to withdraw any of its officials’ instructions, such as the Directive, not to recognize the marriages by same-sex couples entered into pursuant to Utah marriage licenses issued between December 20, 2013, and January 6, 2014, including Plaintiffs’ marriages, and must in all respects treat them as married. C. A declaratory judgment stating that the reimplementation of Amendment 3, the Marriage Limitation Statute, the Marriage Recognition Statute, and any other statute preventing same sex couples from marrying does not retroactively strip recognition from the marriages by same-sex couples entered into pursuant to Utah marriage licenses issued between December 20, 2013 and January 6, 2014, including Plaintiffs’
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marriages, or otherwise impair the protections and responsibilities that such marriages are subject to under Utah law. D. An order pursuant to Rule 65B of the Utah Rules of Civil Procedure directing State officials as follows: to immediately recognize the marriages by same-sex couples entered into pursuant to Utah marriage licenses issued between December 20, 2013, and January 6, 2014, including Plaintiffs’ marriages, as valid marriages; to afford all such couples, including Plaintiffs, and their families with all of the protections and responsibilities given to all married couples under Utah law; and to cease making representations that the federal appellate courts will decide whether their current refusals are lawful in the Kitchen suit. E. Attorneys’ fees and costs related to the litigation of this action. F. Any other relief the court deems just and proper.
DATED this 21st day of January, 2014. STRINDBERG & SCHOLNICK, LLC
/s/ Erik Strindberg Erik Strindberg Lauren Scholnick Kathryn Harstad Rachel Otto Attorneys for Plaintiffs
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CCaassee22:1:143-c-cvv-0-000025157-D-RAJKS DDooccuummeenntt190FiFleilded011/2/82/01/413PaPgaege371ooff15036

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.

MEMORANDUM DECISION AND ORDER
Case No. 2:13-cv-217

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.

CCaassee22:1:143-c-cvv-0-000025157-D-RAJKS DDooccuummeenntt190FiFleilded011/2/82/01/413PaPgaege382ooff15036
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 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 samesex 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.
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
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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.
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 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.
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
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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 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.
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
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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 samesex 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
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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. 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
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CCaassee22:1:143-c-cvv-0-000025157-D-RAJKS DDooccuummeenntt190FiFleilded011/2/82/01/413PaPgaege437ooff15036
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 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 samesex 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
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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. 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, 852 P.2d 44, 59 (Haw. 1993).2
1Unless 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.
2The 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.
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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, 744 A.2d 864, 886-87 (Vt. 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 (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, 798 N.E.2d 941, 948 (Mass. 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.
Baehr v. Miike, No. 91-1394, 1996 WL 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.
3The 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.
4Six 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.
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In 2013, the Supreme Court held that Section 3 of DOMA was unconstitutional.5 Windsor v. United States, 133 S. Ct. 2675, 2696 (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 recognized same-sex marriage, In re Marriage Cases, 183 P.3d 384, 453 (Cal. 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, 133 S. Ct. 2652, 2668 (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.
5As 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.
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ANALYSIS I. Standard of Review
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, 133 S. Ct. 2675 (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 (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
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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.
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 a state law that protected individual rights. Here, these interests directly oppose each other. The Windsor court did not resolve this conflict in the
6The 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.
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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 (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 (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 samesex 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.
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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, 191 N.W.2d 185, 187 (Minn. 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 (1972).
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 (1975).
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 (1976); Frontiero v. Richardson, 411 U.S. 677, 688 (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 (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 (2003). As
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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. 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 . .
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. 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 Perry v. Hollingsworth 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 133 S. Ct. 2652 (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.
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
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
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Constitution. The court must then decide whether the State’s definition and regulation of marriage impermissibly infringes those rights.
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 (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 (1992) (quoting Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring)).
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 (1968) (discussing incorporation of certain rights from the
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First, Fourth, Fifth, and Sixth Amendments); McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (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:
[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 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds), quoted in Casey, 505 U.S. at 848-49. A. Supreme Court Cases Protecting Marriage as a Fundamental Right The right to marry is an example of a fundamental right that is not mentioned explicitly in the text of the Constitution but is nevertheless protected by the guarantee of liberty under the Due Process Clause. The Supreme Court has long emphasized that the right to marry is of fundamental importance. In Maynard v. Hill, the Court characterized marriage as “the most important relation in life” and as “the foundation of the family and society, without which there would be neither civilization nor progress.” 125 U.S. 190, 205, 211 (1888). In Meyer v. Nebraska, the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause. 262 U.S. 390, 399 (1923).
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And in Skinner v. Oklahoma ex rel. Williamson, the Court ruled that marriage is “one of the basic civil rights of man.” 316 U.S. 535, 541 (1942).
In more recent cases, the Court has held that the right to marry implicates additional rights that are protected by the Fourteenth Amendment. For instance, the Court’s decision in Griswold v. Connecticut, in which the Court struck down a Connecticut law that prohibited the use of contraceptives, established that the right to marry is intertwined with an individual’s right of privacy. 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 (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 Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” 519 U.S. 102, 116 (1996) (citation omitted). 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 (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 (1977) (“[I]t is clear that among the decisions that an individual may make
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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 (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. 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 (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
7In 1948, the California Supreme Court became the first court in the twentieth century to strike down an anti-miscegenation statute. Perez v. Sharp, 198 P.2d 17 (Cal. 1948); see also
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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; 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.”).
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 (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. The Court distinguished the
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statute at issue from reasonable state regulations related to marriage that would not require any
heightened review:
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. 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 (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
(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. 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
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of legitimate corrections goals. Id. at 95-96.
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 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 (“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 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
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the Fourteenth Amendment. See Casey, 505 U.S. at 851. 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.
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
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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 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
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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 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the race.”).
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 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 oppositesex 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
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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 (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 (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 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
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ordered liberty,” such that “neither liberty nor justice would exist if [it] were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721 (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 (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. 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.
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.
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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.
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. Lawrence v. Texas, 539 U.S. 558, 578-79 (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
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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 (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. 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
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(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 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 (Scalia, J., dissenting) (citations omitted). 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
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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 (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 (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
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 (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 (1996).
To determine whether a piece of legislation violates the Equal Protection Clause, the
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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; see also Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (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.
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 (1938).
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
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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 (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. “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. 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 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 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 (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
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scrutiny rubric”). 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 (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. 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. 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.
2. Sexual Orientation as a Suspect Class The Plaintiffs assert that, even if Amendment 3 does not 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
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indicate they are especially at risk of discrimination. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (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.
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.
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 PriceCornelison 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 The Plaintiffs contend that Amendment 3 is based on animus against gay and lesbian
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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 (1996) and United States v. Windsor, 133 S. Ct. 2675 (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. 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. The Supreme Court held that the amendment was unconstitutional because it violated the Equal Protection Clause. Id. at 635. 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. 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. 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.
The Supreme Court’s opinion in Windsor is similar. The Court did not analyze the
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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 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 (1928), quoted in Romer, 517 U.S. at 633. 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, 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
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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.
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, 798 N.E.2d 941, 948 (Mass. 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
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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 (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
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rational basis jurisprudence. It is unclear 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 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 (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 (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.
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Evans, 517 U.S. 620, 632 (1996); Lyng v. Int’l Union, 485 U.S. 360, 375 (“[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. 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 (1973).
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. 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 (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
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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. Robinson 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. See also City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448-50 (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 (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 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 (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).
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 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,
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“[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; 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
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procreation. 2. Optimal Child-Rearing
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.
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
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take care of children that are biologically their own whom they may have had with an oppositesex partner. Similarly, the 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
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between Utah’s prohibition of same-sex marriage and its goal of fostering an ideal family environment for a child.
3. Proceeding with Caution 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 (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. 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. In any event, the only evidence that either party submitted concerning the effect of samesex 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
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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
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 (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 (1993) (“Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.”).
The traditional view of marriage has in the past included certain views about race and gender roles that were insufficient to uphold laws based on these views. See Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) (“[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack”) (citation omitted); Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 733-35 (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 samesex couples.” Lawrence, 539 U.S. at 601 (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
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(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, 133 S. Ct. 2675 (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.
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.
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 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
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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.
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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 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 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
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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.
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Case 2:143-cv-00025157-DRAJSK Document 910 FFileiledd012/2/280/1/143 PPaaggee8593oof f15036 ORDER
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.
SO ORDERED this 20th day of December, 2013. BY THE COURT: ______________________________ ROBERT J. SHELBY United States District Judge
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Utah Governor Gary R. Herbert

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Governor's Office gives direction to state agencies on same sex marriage issues
Dec 24 2013
SALT LAKE CITY - (Dec. 24, 2013) The Governor's Office sent the following email to Cabinet Members today in regards to issues stemming from the recent federal court rulings on Amendment 3 to the Utah State Constitution:
Dear Cabinet, Thanks to each of you for providing an analysis of the impacts to the operations in your respective agencies based on the recent federal district court ruling on same sex marriage. As indicated in your responses, many agencies will experience minimal or no impact.
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 GOMB 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.

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Thank you for your attention to this matter.

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Ofﬁcial Statement
RE: The United States Supreme Court’s decision to grant Utah’s application for a stay of the Utah District Court’s decision pending the 10th Circuit appeal
“ There is not clear legal precedence for this particular situation. This is the uncertainty that we were trying to avoid by asking the District Court for a stay immediately after its decision. It is very unfortunate that so many Utah citizens have been put into this legal limbo. Utah’s Ofﬁce of Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally. I believe this was a correct decision by the Supreme Court. There is an order to the legal process and this decision is just another step in that process. Both legal teams have much work to do before the case is presented before the 10th Circuit Court on an expedited basis. I believe the stay indicates an interest by the Supreme Court in this case and as I have said before, pursuing the legal process to get a ﬁnal answer from the highest court beneﬁts all citizens of Utah.”

Utah Governor Gary R. Herbert
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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

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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
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 Case 2:14-cv-00055-DAK Document 45 Filed 05/19/14 Page 1 of 35

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

JONELL EVANS, STACIA IRELAND, MARINA GOMBERG, ELENOR HEYBORNE, MATTHEW BARRAZA, TONY MILNER, DONALD JOHNSON, and KARL FRITZ SHULTZ,
Plaintiffs,
vs.
STATE OF UTAH, GOVERNOR GARY HERBERT, ATTORNEY GENERAL SEAN REYES,
Defendants.

MEMORANDUM DECISION AND ORDER
Case No. 2:14CV55DAK
Judge Dale A. Kimball

This matter is before the court on Plaintiffs JoNell Evans, Stacia Ireland, Marina Gomberg, Elenor Heyborne, Matthew Barraza, Tony Milner, Donald Johnson, and Karl Fritz Shultz’s Motion for Preliminary Injunction, Plaintiffs’ Motion to Certify Questions of Utah State Law to the Utah Supreme Court, and Defendants State of Utah, Governor Gary Herbert, and Attorney General Sean Reyes’ (collectively, “the State”) Motion to Certify Questions of Utah State Law to the Utah Supreme Court. The court held a hearing on Plaintiffs’ Motions on March 12, 2014.1 At the hearing, Plaintiffs were represented by Erik Strindberg, Joshua A. Block, and John Mejia, and the State was represented by Joni J. Jones, Kyle J. Kaiser, and Parker Douglas.
1 The State’s Motion to Certify Questions of Utah State Law was not filed until after the hearing was held. The motion is fully briefed, and the court concludes that a separate hearing on the motion is unnecessary.

Case 2:14-cv-00055-DAK Document 45 Filed 05/19/14 Page 2 of 35
After carefully considering the parties’ arguments, as well as the law and facts relevant to the motions, the court enters the following Memorandum Decision and Order.
FACTUAL BACKGROUND The present lawsuit is brought by four same-sex couples who were married in Utah between December 20, 2013, and January 6, 2014. Plaintiffs allege deprivations of their property and liberty interests under Utah and federal law resulting from the State of Utah’s failure to recognize their marriages. A. Kitchen v. Herbert Case On December 20, 2013, United States District Judge Robert J. Shelby issued a ruling in Kitchen v. Herbert, 2:13cv217RJS, 2013 WL 6834634 (D. Utah Dec. 23, 2013), enjoining the State of Utah from enforcing its statutory and constitutional bans on same-sex marriages (collectively, “marriage bans”).2 The State did not request a stay of the ruling in the event that it lost, and the court’s decision did not sua sponte stay the ruling pending appeal. After learning of the adverse ruling, the State then requested a stay from the district court, which Judge Shelby denied on December 23, 2013. The Tenth Circuit denied the State’s subsequent request for a
2 In 1977, the Utah Legislature amended Utah Code Section 30-1-2 to state “[t]he following marriages are prohibited and declared void”: [marriages] “between persons of the same sex.” Utah Code Ann. § 30-1-2(5). In 2004, the Utah Legislature added Utah Code Section 301-4.1, which provides: “It is the policy of this state to recognize as marriage only the legal union of a man and a woman;” and “this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties [to same-sex couples] that are substantially equivalent to those provided under Utah law to a man and woman because they are married.” Id. § 30-1-4.1(1)(a), (b). In the November 2004 general election, Utah voters passed Amendment 3, which added Article I, Section 29 to the Utah Constitution, effective January 1, 2005, which provides: “(1) Marriage consists of only the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”
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stay on December 24, 2013. The State moved for a stay with the United States Supreme Court on December 31, 2013, and the Supreme Court granted a stay on January 6, 2014 (“Stay Order”). B. State’s Response to Kitchen Decision
After the Kitchen decision was issued on December 20, 2013, some county clerks began issuing marriage licenses to same-sex couples that same day. On December 24, 2013, Governor Herbert’s office sent an email to his cabinet, stating: “Where no conflicting laws exist you should conduct business in compliance with the federal judge’s ruling until such time that the current district court decision is addressed by the 10th Circuit Court.” Also on that day, a spokesperson for the Utah Attorney General’s Office publicly stated that county clerks who did not issue licenses could be held in contempt of court.
Between December 20, 2013 and January 6, 2014, the State of Utah issued marriage licenses to over 1,300 same-sex couples. While it is not known how many of those couples granted licenses solemnized their marriages before January 6, 2014, news reports put the number at over 1,000.
The United States Supreme Court’s January 6, 2014 Stay Order did not address the legal status of the marriages entered into by same-sex couples in Utah between December 20, 2013, and January 6, 2014, as a result of the Kitchen decision. The Supreme Court’s Stay Order stated:
The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case no. 2:13-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. Also on January 6, 2014, after the Supreme Court’s Stay Order, Utah Attorney General Sean Reyes issued the following statement: “Utah’s Office of Attorney General is carefully
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evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally.”
Two days later, Governor Herbert’s chief of staff sent an email to the Governor’s cabinet informing them of the Supreme Court’s stay and stating that “[b]ased on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice.” The email stated that the cabinet members should “understand this position is not intended to comment on the legal status of those same-sex 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.” Furthermore, the email instructed that “[w]herever individuals are in the process of availing themselves of state services related to same-sex martial status, that process is on hold and will stay exactly in that position until a final court decision is issued.”
The next day, Attorney General Reyes issued a letter to county attorneys and county clerks to provide “legal clarification about whether or not to mail or otherwise provide marriage certificates to persons of the same sex whose marriage ceremonies took place between December 20, 2013, and January 6, 2014, prior to the issuance of the stay by the U.S. Supreme Court.” Attorney General Reyes continued that “although the State of Utah cannot currently legally recognize marriages other than those between a man and a woman, marriages between persons of the same sex were recognized in the State of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed.” He explained that “the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law” and “would allow, for instance,
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same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage.”
Furthermore, Attorney General Reyes stated that the State of Utah would not challenge the validity of those marriages for the purposes of recognition by the federal government or other states. But, “the validity of the marriages in question must ultimately be decided by the legal appeals process presently working its way through the courts.”
On January 15, 2014, the Utah State Tax Commission issued a notice stating that samesex couples “may file a joint return if they [were] married as of the close of the tax year” for 2013 because “[a]s of December 31, 2013, the Supreme Court had not yet issued its stay of the District Court’s injunction.” The notice further stated: “This notice is limited to the 2013 tax year. Filing information for future years will be provided as court rulings and other information become available.” C. Plaintiffs’ Responses to Kitchen Decision
Plaintiffs Marina Gomberg and Elenor Heyborne obtained their marriage license and solemnized their marriage on December 20, 2013. They had been in a relationship for nine years and had previously performed a commitment ceremony in May 2009, even though the State of Utah did not recognize the union. They have been contemplating having a baby but are worried about protecting their family because the State of Utah will only allow one of them to be a legal parent to any children that they raise together. Gomberg and Heyborne do not want to move to another state to have their marriage recognized.
Plaintiffs Matthew Barraza and Tony Milner also obtained their marriage license and solemnized their marriage on December 20, 2013. They had been in a committed relationship for nearly 11 years. In 2010, Barraza and Milner traveled to Washington, D.C., and got married.
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However, Utah law prevented any recognition of their marriage in Utah. In 2009, Barraza adopted a son, J., who is now four years old. Under Utah law, Milner was not allowed to be an adoptive parent to J. even though he and Barraza are jointly rasing J.
On December 26, 2013, Barraza and Milner initiated court proceedings for Milner to adopt their son. The court scheduled a hearing date for January 10, 2014. On January 9, 2014, the court informed them that the court had decided to stay the adoption proceedings to consider whether the Utah Attorney General’s Office should be notified of the proceedings and allowed to intervene. The court held a hearing on January 29, 2014, and ruled that the Attorney General’s Office should be given notice. The Attorney General’s Office declined to intervene but filed a brief stating that the court should stay the proceedings until the Tenth Circuit decided the appeal in Kitchen. On March 26, 2014, the state court judge, the Honorable Andrew H. Stone, rejected the Attorney General’s arguments and ordered that Milner should be allowed to adopt J.
On April 1, 2014, Milner and Barraza’s attorney went to the Utah Department of Health, Office of Vital Records, to obtain a new birth certificate for J. based on Judge Stone’s Decree of Adoption. Although he presented a court-certified decree of adoption and report of adoption, which are the only records needed under Utah law and regulation to create a new birth certificate based on adoption, the registrar refused to issue a new birth certificate. The registrar asked for a copy of Barraza and Milner’s marriage certificate, even though a marriage certificate is not usually required, and contacted the Utah Attorney General’s Office. Two attorneys from the Utah Attorney General’s Office instructed the registrar not to issue the amended birth certificate for J.
On April 7, 2014, the Utah Department of Health served Milner and Barraza with a Petition for Emergency Extraordinary Relief, which it had filed in the Utah Supreme Court. In
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that Petition, the Department of Health requests a court order relieving it from recognizing Judge Stone’s decree of adoption because it recognizes Milner and Barraza’s same-sex marriage. On May 7, 2014, Judge Stone issued an order for the Attorney General and other state officials to show cause why they should not be held in contempt for refusing to comply with the court’s order to issue an amended birth certificate. On May 16, 2014, the Utah Supreme Court issued an order staying enforcement of the state court orders and stating that a briefing schedule on the writ would be set.
Plaintiffs JoNell Evans and Stacia Ireland also obtained a marriage license and solemnized their marriage on December 20, 2013. Evans and Ireland had been in a relationship for 13 years. In 2007, they had a religious marriage ceremony at the Unitarian Church in Salt Lake City, but the marriage was not recognized by the State of Utah.
Evans and Ireland have tried to obtain rights through the use of medical powers of attorney because Ireland has had serious health issues recently. In 2010, Ireland suffered a heart attack. With the power of attorney, Evans was allowed to stay with Ireland during her treatment but did not feel as though she was given the same rights as a spouse. On January 1, 2014, Evans again had to rush Ireland to the hospital emergency room because Ireland was experiencing severe chest pains. Unlike her previous experience, Evans was afforded all courtesies and rights given to the married spouse of a patient. Now that the State no longer recognizes their marriage, Evans does not know how she will be treated if there is another medical situation.
Plaintiffs Donald Johnson and Karl Fritz Shultz got their marriage license and solemnized their marriage on December 23, 2013, after waiting in line for approximately eight hours. Johnson and Shultz have been in a relationship for over 21 years. Johnson first proposed to Shultz the Sunday after Thanksgiving in 1992, and the couple had continued to celebrate that day
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as their anniversary. Johnson researched insurance coverage for himself and Shutlz and discovered that they could save approximately $8,000.00 each year on health insurance. They will lose that savings without state recognition of their marriage.
LEGAL ANALYSIS Plaintiffs’ Motion for Preliminary Injunction Plaintiffs seek a preliminary injunction requiring the State to continue recognizing the marriages Plaintiffs entered into pursuant to valid Utah marriage licenses between December 20, 2013, and January 6, 2014. The State continues to recognize Plaintiffs’ marriages for purposes of joint state tax filings for 2013 and already-issued state documents with marriage-related name changes. However, for all other purposes, the State is applying its marriage bans retroactively to Plaintiffs’ marriages. Plaintiffs seek an injunction requiring the State to continue recognizing their marriages as having all the protections and responsibilities given to all married couples under Utah law. I. Preliminary Injunction Standard Preliminary injunctive relief is appropriate if the moving party establishes: “(1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant’s favor; and (4) that the injunction is in the public interest.” Roda Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009). Because a preliminary injunction is an extraordinary remedy, the “right to relief must be clear and unequivocal.” SCFC LLC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). In the Tenth Circuit, certain types of injunctions are disfavored: “(1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary
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injunctions that afford the movant to all the relief that it could recover at the conclusion of a full trial on the merits.” Schrier v. University of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005) (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004). “Such disfavored injunctions ‘must be more closely scrutinized to assure that the exigencies of that case support the granting of a remedy that is extraordinary even in the normal course.’” Id. “Movants seeking such an injunction are not entitled to rely on this Circuit’s modified-likelihood-of-success-on-the-merits standard.” O Centro, 389 F.3d at 976. The moving party must make “a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Awad v. Ziriax, 670 F.3d 111, 1125 (10th Cir. 2012).
The status quo for purposes of a preliminary injunction is “the ‘last peaceable uncontested status existing between the parties before the dispute developed.’” Schrier, 427 F.3d at 1260. In this case, the last peaceable uncontested status between the parties was when the State recognized Plaintiffs’ marriages. Therefore, the requested preliminary injunction does not disturb the status quo.
However, the State argues that Plaintiffs’ requested preliminary injunction is a disfavored injunction because it is mandatory rather than prohibitory. An injunction is mandatory if it will “affirmatively require the nonmovant to act in a particular way, and as a result . . . place[s] the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.” Id. at 1261. The Tenth Circuit has recognized that “[t]here is no doubt that determining whether an injunction is mandatory as opposed to prohibitory can be vexing.” O Centro, 389 F.3d at 1006. “‘In many instances, this distinction is more semantical than substantive. For to order a party to refrain from performing a given act is to limit his ability to perform any alternative act; similarly, an order to perform in a particular
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manner may be tantamount to a proscription against performing in any other.’” Id. (citation omitted).
In this case, the court could characterize Plaintiffs’ requested injunction as prohibiting the State from enforcing its marriage bans against couples who already have vested marriage rights or affirmatively requiring the State to recognize Plaintiffs’ vested marriage rights. In large part, it is a matter of semantics rather than substance. Preventing the State from applying its marriage bans retroactively is the same thing as requiring the State to recognize marriages that were entered into when such marriages were legal.
As to the second element of a mandatory injunction, however, there is no evidence to suggest that this court would be required to supervise the State if the court granted Plaintiffs’ requested injunction. The State’s position is that it is required by Utah law to apply Utah’s marriage bans to all same-sex marriages until a court decides the issue. The Directive that went to Governor Herbert’s cabinet stated that the “legal status” of the same-sex marriages that took place before the Supreme Court stay was “for the courts to decide.” And Attorney General Reyes recognized that the validity of the marriages in question must ultimately be decided by the legal process. Based on the State’s compliance with the injunction in Kitchen prior to the Supreme Court’s Stay Order, there is no basis for assuming that the State would need supervision in implementing an order from this court recognizing the same-sex marriages.
Neither party raised the issue of whether this is an injunction that would provide Plaintiffs with all the relief they could receive from a trial on the merits. Plaintiffs seek declaratory and injunctive relief that their marriages continue to be valid under Utah and federal law. However, Plaintiffs have pleaded a cause of action for the deprivation of property and liberty interests in violation of the United States Constitution under 42 U.S.C. § 1983. A determination that the
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State has deprived Plaintiffs of their constitutional rights could, therefore, result in at least nominal damages at trial.3
The court concludes, therefore, that the requested injunction is not a disfavored injunction which would require the clear and unequivocal standard to apply to the likelihood of success on the merits element. Based on this court’s analysis, the preliminary injunction does not alter the status quo, is not mandatory, and does not afford Plaintiff all the relief that could be awarded at trial. However, to the extent that the requested injunction could be construed as a mandatory injunction, the court will analyze the likelihood of success on the merits under the clear and unequivocal standard. II. Merits
Because the court is applying the heightened standard to Plaintiffs’ request for a preliminary injunction, the court will address the likelihood of success on the merits first and then each element in turn.
A. Likelihood of Success on the Merits Plaintiffs argue that they are likely to succeed on their state and federal claims because they became vested in the rights attendant to their valid marriages at the time those marriages were solemnized and the State is required, under the state and federal due process clauses, to continue recognizing their marriages despite the fact that Utah’s same-sex marriage bans went back into effect on January 6, 2014. In their Complaint, Plaintiffs bring causes of action for violations of their due process and liberty interests under the Utah and United States
3 Plaintiffs allege financial damages due to a deprivation of rights, such as Johnson and Shutlz’s $8,000.00 yearly loss for insurance premiums. Plaintiffs, however, do not specifically request monetary damages in their Prayer for Relief. Rather, Plaintiffs state only “any other relief the court deems just and proper.”
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Constitutions. Article I, Section 7 of the Utah Constitution provides that “[n]o person shall be deprived of life, liberty or property, without due process of law.” The Fourteenth Amendment to the United States Constitution guarantees that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Utah Supreme Court has recognized that “the standards for state and federal constitutional claims are different because they are based on different constitutional language and different interpretive law.” Jensen ex rel. Jensen v. Cunningham, 250 P.3d 465, 477 (Utah 2011). While the language may be similar, the Utah Supreme Court has explained that federal standards do not “foreclose [its] ability to decide in the future that [its] state constitutional provisions afford more rights than the federal Constitution.” Id. at 478 (concluding that conduct that did not give rise to a federal constitutional violation could still give rise to a state constitutional violation). Recognizing that the Utah Supreme Court has the prerogative to find that the state due process clause affords more protections, the court will analyze the issue under only federal due process standards.
As an initial matter, the court notes that this case is not about whether the due process clause should allow for same-sex marriage in Utah or whether the Kitchen decision from this District was correct. That legal analysis is separate and distinct from the issues before this court and is currently on appeal to the Tenth Circuit Court of Appeals. This case deals only with whether Utah’s marriage bans preclude the State of Utah from recognizing the same-sex marriages that already occurred in Utah between December 20, 2013, and January 6, 2014.
Plaintiffs bring their federal violation of due process and liberty interests claim under 42
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U.S.C. § 1983. While Section 1983 “does not provide any substantive rights” of its own, it provides “a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979); Baker v. Mccollan, 443 U.S. 137, 144 n.3 (1979).
“To state a claim for a violation of due process, plaintiff must first establish that it has a protected property interest and, second, that defendants’ actions violated that interest.” Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1216 (10th Cir. 2003). “The Supreme Court defines ‘property’ in the context of the Fourteenth Amendment’s Due Process Clause as a ‘legitimate claim of entitlement’ to some benefit.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). These claims of entitlement generally “arise from independent sources such as state statutes, local ordinances, established rules, or mutually explicit understandings.” Dickeson v. Quarberg, 844 F.2d 1435, 1437 (10th Cir. 1988). In assessing a due process claim, the Tenth Circuit has recognized that “a liberty interest can either inhere in the Due Process Clause or it may be created by state law.” Elwell v. Byers, 699 F.3d 1208, 1213 (10th Cir. 2012).
1. Interest Inherent in the Due Process In finding a liberty interest inherent in the Due Process Clause, the Tenth Circuit explained that “[t]here can be no doubt that ‘freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’” Id. at 1215 (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974)). “As the Court declared in Meyer v. Nebraska, 262 U.S. 390 (1923), the liberty guaranteed by the Due Process Clause ‘denotes not merely freedom from bodily restraint but also
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the right of the individual . . . to marry, establish a home and bring up children.” Id. In Windsor, the United States Supreme Court struck down the federal Defense of
Marriage Act because it was “unconstitutional as a deprivation of the liberty of the person protected by” the Due Process Clause. Id. In prior cases, the court has also found that “the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection.” Lehr v. Robertson, 463 U.S. 248, 258 (1983).
In this case, Plaintiffs solemnized legally valid marriages under Utah law as it existed at the time of such solemnization. At that time, the State granted Plaintiffs all the substantive due process and liberty protections of any other marriage. The Windsor Court held that divesting “married same-sex couples of the duties and responsibilities that are an essential part of married life” violates due process. United States v. Windsor, 133 S. Ct. 2675, 2695 (2013).
As in Windsor, the State’s decision to put same-sex marriages on hold, “deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities.” Id. at 2694. Similarly, the “principal effect” of the State’s actions “is to identify a subset of state-sanctioned marriages and make them unequal.” The court, therefore, concludes that under Tenth Circuit law, Plaintiffs have demonstrated a liberty interest that inheres in the Due Process Clause.
2. Interest Created by State Law Plaintiffs have also asserted that they have a state property interest in their valid marriages under Utah state law. The only state court to look at an issue similar to the one before this court is the California Supreme Court in Strauss v. Horton, 207 P3d 48 (Cal. 2009). The Strauss court addressed the continuing validity of the same-sex marriages that occurred after the California Supreme Court decision allowing same-sex marriage under the California Constitution
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and the passage of Proposition 8, which amended the California Constitution to preclude samesex marriages. Id. at 119-22. The Strauss court began its analysis by recognizing the presumption against finding an enactment to have retroactive effect and examining the language of Proposition 8 to determine whether the amendment could be applied retroactively. Id. at 12021. The court concluded that Proposition 8 did not apply retroactively. Id.
In making its determination on retroactivity, the court also acknowledged that its “determination that Proposition 8 cannot properly be interpreted to apply retroactively to invalidate lawful marriages of same-sex couples that were performed prior to the adoption of Proposition 8 is additionally supported by our recognition that a contrary resolution of the retroactivity issue would pose a serious potential conflict with the state constitutional due process clause.” Id. at 121.
The Strauss court explained that its “past cases establish that retroactive application of a new measure may conflict with constitutional principles ‘if it deprives a person of a vested right without due process of law.’” Id. (citations omitted). “In determining whether a retroactive law contravenes the due process clause,” the court must “consider such factors as the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions.” Id.
Applying these principles to whether the same-sex marriages entered into prior to Proposition 8 should remain valid, the Strauss court concluded that applying Proposition 8 retroactively “would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause.” Id. at 122. The court reasoned that the
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same-sex couples “acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances.” Id. Furthermore, the couples’ reliance was “entirely legitimate,” and “retroactive application of the initiative would disrupt thousands of actions taken in reliance on the [prior court ruling] by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court.” Id. “By contrast, a retroactive application of Proposition 8 is not essential to serve the state’s current interest (as reflected in the adoption of Proposition 8) in preserving the traditional definition of marriage by restricting marriage to opposite-sex couples; that interest is honored by applying the measure prospectively and by having the traditional definition of marriage enshrined in the state Constitution where it can be altered only by a majority of California voters.” Id.
In this case, the State seeks to apply its marriage bans retroactively to Plaintiff’s previously-entered marriages. The marriage bans were legal nullities at the time Plaintiffs were married. However, once the Supreme Court entered its Stay Order, the State asserts that the marriage bans went back into effect.
Like California, Utah law has a strong presumption against retroactive application of laws. “Constitutions, as well as statutes, should operate prospectively only unless the words employed show a clear intention that they should have a retroactive effect.” Shupe v. Wasatch Elec. Co., 546 P.2d 896, 898 (Utah 1976). The presumption against retroactive application of changes in the law is deeply rooted in principles of fairness and due process. The United States Supreme Court has explained that “the presumption against retroactive legislation . . . embodies a
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legal doctrine centuries older than our Republic.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). “The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Id.
Because retroactive application of a law is highly disfavored, “a court will and ought to struggle hard against a construction which will, by retrospective operation, affect the rights of parties.” Thomas v. Color Country Mgmt., 84 P.3d 1201, 1210 (Utah 2004) (Durham, C.J., concurring). Utah’s presumption against retroactivity can be overcome only by “explicit statements that the statute should be applied retroactively or by clear and unavoidable implication that the statute operates on events already past.” Evans & Sutherland Computer Corp. v. Utah State Tax Comm’n, 953 P.2d 435, 437 (Utah 1997).
In this case, Utah’s statutory and constitutional provisions do not explicitly state that they apply retroactively. Utah Code Section 30-1-2 states that marriages “between persons of the same sex” “are prohibited and declared void.” Utah Code Ann. § 30-1-2(5). Utah Code Section 30-1-4.1 provides: “It is the policy of this state to recognize as marriage only the legal union of a man and a woman;” and “this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties [to same-sex couples] that are substantially equivalent to those provided under Utah law to a man and woman because they are married.” Id. § 30-1-4.1(1)(a), (b). Article I, Section 29 to the Utah Constitution provides: “(1) Marriage consists of only the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”
The use of the present tense in these same-sex marriage bans indicates that the bans do not apply retroactively. In Waddoups v. Noorda, 2013 UT 64, the Utah Supreme Court stated: “It
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simply cannot be said that the use of the present tense communicates a clear and unavoidable implication that the statute operates on events already past. If anything, use of the present tense implies an intent that the statute apply to the present, as of its effective date, and continuing forward.” Id. at ¶ 7.
The Waddoup court’s analysis is consistent with the Strauss court’s conclusion that Proposition 8's use of the present tense did not retroactively apply to prior marriages because “a measure written in the present tense (‘is valid or recognized’) does not clearly demonstrate that the measure is intended to apply retroactively.” Strauss, 207 P.3d at 120. The Waddoup’s decision is further consistent with other courts concluding that statutes stating that a marriage “is prohibited and void” does not apply retroactively. See Cook v. Cook, 104 P.3d 857, 865 n.2 (Ariz. Ct. App. 2005) (finding “[m]arriage . . . between first cousins is prohibited and void” does not apply retroactively); Succession of Yoist, 61 So. 384, 385 (La. 1913) (statute declaring, “Marriages between white persons and persons of color are prohibited, and the celebration of such marriages is forbidden, and such celebration carries with it no effect, and is mull and void,” does not apply retroactively).
Thus, the use of present and future tenses in Utah’s marriage bans does not provide a “clear and unavoidable” implication that they “operate on events already past.” Waddoups, 2013 UT at ¶ 7. The court concludes that, under Utah law, nothing in the language of Utah’s marriage bans indicates or implies that the bans should or can apply retroactively.
Moreover, nothing in the United States Supreme Court’s Stay Order speaks to the legal status of the marriages that had already taken place or whether Utah’s marriage bans would have retroactive effect when they were put back in place. While the State asserts that the Stay Order placed the marriage bans back into effect as of December 20, 2013, the State cites to no language
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in the Stay Order that would support that assertion. In addition, the State has not presented any case law indicating that a Stay Order has that effect.
The State argues that application of Utah’s previously existing marriage bans after the Supreme Court’s Stay Order is not retroactive application of the bans because the laws were enacted long before Plaintiffs entered into their marriages. However, this argument completely ignores the change in the law that occurred. The marriage bans became legal nullities when the Kitchen decision was issued and were not reinstated until the Stay Order. In addition, the State’s argument fails to recognize that Utah law defines a retroactive application of a law as an application that “‘takes away or impairs vested rights acquired under existing laws . . . in respect to transactions or considerations already past.’” Payne By and Through Payne v. Myers, 743 P.2d 186, 190 (Utah 1987). Under this definition, the State’s application of the marriage bans to place Plaintiffs’ marriages “on hold,” necessarily “takes away or impairs vested rights acquired under existing law.”
When discussing the due process concerns implicated in a retroactive application of Proposition 8, the Strauss court had clear California precedents to rely upon that identified the state’s recognition of vested rights in marriage. 207 P.3d at 121. In this case, however, the State disputes whether Plaintiffs have vested rights in their marriages under Utah law.
Under Utah law, a marriage becomes valid on the date of solemnization. See Walters v. Walters, 812 P.2d 64, 68 (Utah Ct. App. 1991); State v. Giles, 966 P.2d 872, 877 (Utah Ct. App. 1998) (marriage valid from date of solemnization, even if officiant does not return certificate to county clerk). There is no dispute in this case that Plaintiffs’ marriages were valid under the law as it existed at the time they were solemnized. In Miller v. USAA Cas. Ins. Co., 44 P.3d 663, 674 (Utah 2002), the Utah Supreme Court recognized that the due process protection in the Utah
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Constitution “is not confined to mere tangible property but extends to every species of vested rights.” And, as early as 1892, the Utah Supreme Court recognized the fundamental vested rights associated with marriage. Tufts v. Tufts, 30 P. 309, 310 (Utah 1892).
In Tufts v. Tufts, the court addressed the retroactive application of divorce laws and stated that the rights and liabilities of spouses “grew out of a contract governing the marriage relation which existed at the time” the alleged conduct occurred. Id. The court relied on precedent stating that “[w]hen a right has arisen upon a contract, or a transaction in the nature of a contract, authorized by statute, and has been so far perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not affect it, or any action for its enforcement. It has then become a vested right, which stands independent of the statute.” Id. The court also stated that the rights and liabilities of spouses are “sacred” and, “while the relation is based upon contract,” “it is a contract that differs from all others, and is the basis of civilized society.” Id. at 310-11.
In this case, Plaintiffs’ marriages were authorized by law at the time they occurred. The marriages were solemnized and valid under the existing law so that nothing remained to be done. No separate step can or must be taken after solemnization for the rights of a marriage to vest. Moreover, Plaintiffs began to exercise the rights associated with such valid marriages prior to the entry of the Supreme Court’s Stay Order. As in Tufts, therefore, the change in the law does not affect the vested rights associated with those marriages. The vested rights in Plaintiffs’ validlyentered marriages stand independent of the change in the law. For over a hundred years, the Tufts decision has never been called into question because it states a fundamental principle of basic fairness.
This application of Utah law is consistent with the Strauss court’s recognition that the
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“same-sex couples who married after the [court’s] decision in the Marriage Cases . . . and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances.” 207 P.3d at 121. Moreover, the State has failed to cite any law from any jurisdiction supporting the proposition that rights in a valid marriage do not vest immediately upon valid solemnization of the marriage.
Plainly, to deprive Plaintiffs of the vested rights in their validly-entered marriages raises the same due process concerns that were addressed in Strauss. The State argues that Plaintiffs in this case do not have a property interest in their marriages because their right to marry was based on a non-final district court opinion instead of a decision by the state’s highest court as in Strauss. To make this argument, however, the State cites to cases involving non-final consent decrees that are factually distinct from a final district court judgment and that are wholly irrelevant to the issue before this court.
While a factual difference exists between this case and Strauss, the court finds no basis for legally distinguishing between the final judgment in Kitchen and the California Supreme Court’s decision in its marriage cases. Both decisions allowed for same-sex couples to marry legally. “[A]n appeal from a decree granting, refusing or dissolving an injunction does not disturb its operative effects.” Hovey v. McDonald, 109 U.S. 150, 161 (1883). “The general rule is that the judgment of a district court becomes effective and enforceable as soon as it is entered; there is no suspended effect pending appeal unless a stay is entered.” In re Copper Antitrust Litig., 436 F.3d 782, 793 (7th Cir. 2006).
The State’s arguments as to Plaintiffs’ reliance on the final judgment in Kitchen also ignore the fact that Plaintiffs are claiming a vested right in their validly-entered legal marriages.
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Plaintiffs are not claiming they have a vested right in the continuation of the Kitchen injunction or judgment. Plaintiffs contend that their rights vested upon the solemnization of their valid marriages and that their validly-entered marriages do not rely on the continuation or reinstatement of the Kitchen injunction. Thus Plaintiffs seek recognition of their marriages separate and apart from the ultimate outcome of the Kitchen appeals.
Plaintiffs’ claims, therefore, are factually and legally distinguishable from the cases the State cites applying the “vested rights doctrine.” See Axel Johnson, Inc. v. Arthur Andersen & Co., 6 F.3d 78 (2d Cir. 1993); Casiano-Montanez v. State Ins. Fund Corp., 707 F.3d 124 (1st Cir. 2013). In those cases, the plaintiffs were relying on rights fixed by a district court judgment, whereas, Plaintiffs, in this case, are relying on the validity of their marriage licenses. The State, in this case, issued and recognized Plaintiffs’ marriage licenses, which became valid under Utah law when the marriages were solemnized. The State did not issue provisionally-valid marriage licenses. Moreover, Plaintiffs’ vested rights in their legally recognized marriages are not dependent on the ultimate outcome in Kitchen. Whether or not Kitchen is ultimately upheld, the district court’s injunction was controlling law and Utah’s marriage bans were a legal nullity until the Supreme Court issued the Stay Order on January 6, 2014. See Howat v. State of Kansas, 258 U.S. 181, 189-90 (1922) (“An injunction duly issuing out of a court . . . must be obeyed . . . however erroneous the action of the court may be.”).
The State further argues that Plaintiffs’ marriages can be declared legal nullities if the Kitchen decision is overturned because the law has recognized instances when traditional marriages thought to be valid are later declared legal nullities. However, the instances in which courts have declared such marriages void involve mistakes of fact. In Van Der Stappen v. Van Der Stappen, 815 P.2d 1335, 1338 (Utah Ct. App. 1991), the wife discovered that she had not
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completed a previous divorce at the time of her subsequent marriage. In the present case, the marriages were valid under the law at the time they were solemnized and there is no alleged mistake of fact. Therefore, the comparison is inapposite. Cases involving marriages that were invalid at their inception are not helpful or relevant. This case is also distinguishable from cases where county clerks spontaneously started issuing same-sex marriage licenses without any court order or basis in state law. Unlike the cases before this court, those cases were also invalid at their inception.
The more analogous case is presented in Cook v. Cook, where the court recognized that refusing to recognize an out-of-state marriage that had previously been recognized within the state would violate constitutional due process guarantees. 104 P.3d 857, 866 (Ariz. App. 2005). In Cook, the statutory scheme in place when the couple moved to the state expressly allowed the marriage, but a subsequent amendment made such a marriage void. Id. The court refused to find all such marriages in the state on the date of the amendment void because the couples in the state with such marriages already had constitutionally vested rights in their marriages. Id.
The State believes that all the actions taken in response to the final judgment in Kitchen can be considered a nullity if the decision is ultimately overturned. However, there are several instances in which courts recognize that actions taken in reliance on an injunction cannot be reversed. See University of Texas v. Camenisch, 451 U.S. 390, 398 (1981) (injunctions have legal effects that will be “irrevocably carried out” and cannot be unwound if the injunction is subsequently overturned on appeal); see also Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1247 (10th Cir. 2001) (recognizing certain types of injunctions “once complied with, cannot be undone”). Moreover, a person who disobeys a district court injunction that has not been stayed may be punished with contempt even if the underlying injunction is subsequently
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reversed. Walker v. City of Birmingham, 388 U.S. 307, 314 (1967). The State further fails to recognize that Plaintiffs are claiming a violation of substantive
due process rights, not merely procedural due process rights. Plaintiffs allege that they have substantive vested rights in their marriages–such as, the right to family integrity, the right to the custody and care of children of that marriage–that the State cannot take away regardless of the procedures the State uses. Once Plaintiffs solemnized a legally valid marriage between December 20, 2013, and January 6, 2014, Plaintiffs obtained all the substantive due process and liberty protections of any other marriage.
As stated above, the Supreme Court recently held that divesting “married same-sex couples of the duties and responsibilities that are an essential part of married life” violates due process. United States v. Windsor, 133 S. Ct. 2675, 2695 (2013). The State’s decision to put same-sex marriages on hold, “deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities.” Id. at 2694.
Prior Supreme Court cases also establish that there “is a sphere of privacy or autonomy surrounding an existing marital relationship into which the State may not lightly intrude.” Zablocki v. Redhail, 434 U.S. 374, 397 n.1 (1978) (Powell, J., concurring).4 The State has not attempted to argue that they have a constitutionally adequate justification for overcoming Plaintiffs’ due process and liberty interests. Lawrence v. Texas, 539 U.S. 558, 593 (2003) (Ordinarily, “the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.”) The State has not provided the court with a compelling state interest for divesting Plaintiffs of the
4 Utah courts have also recognized “[t]he rights inherent in family relationships–husband-wife, parent-child, and sibling–are the most obvious examples of rights” protected by the Constitution. In re J.P., 648 P.2d 1364, 1373 (Utah 1982).
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substantive rights Plaintiffs obtained in their marriages. The State asserts merely that Plaintiffs improperly relied on the ruling of a United States District Court. The State’s argument, however, fails to acknowledge that the State also relied on the Kitchen decision. The State notified its county clerks that they were required to issue marriage licenses. The State now seems to be claiming that while it reasonably required its county clerks to act in response to the Kitchen decision, Plaintiffs unreasonably acted on that same decision. However, the court has already discussed the operative effect of a district court injunction. That operative effect applies to all parties equally.
Even though the Supreme Court’s Stay Order put Utah’s marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so. Although the State has an interest in applying state law, that interest is only in applying the controlling law at the time. In Strauss, the court found that a retroactive application of Proposition 8 was “not essential to serve the state’s current interest (as reflected in the adoption of Proposition 8) in preserving the traditional definition of marriage by restricting marriage to opposite-sex couples; that interest is honored by applying the measure prospectively and by having the traditional definition of marriage enshrined in the state Constitution.” 207 P.3d at 122. In comparison, “a retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined.” Id.
As in Strauss, this court concludes that the State has not demonstrated a state interest that
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would overcome Plaintiffs’ vested marriage rights. The State’s decision to retroactively apply its marriage bans and place Plaintiffs’ marriages “on hold” infringes upon fundamental constitutional protections for the marriage relationship. Therefore, Plaintiffs have demonstrated a clear and unequivocal likelihood of success on the merits of their deprivation of federal due process claim under 42 U.S.C. § 1983.
B. Irreparable Harm Under Tenth Circuit law, “[t]he party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003). The State argues that the court should not find irreparable harm because, even though Plaintiffs have the option of living in a state that would recognize their marriage, Plaintiffs have chosen to live in Utah for years without enjoying the rights of marriage. This argument ignores the changes in the law that occurred and the fact that Plaintiffs’ situations were materially altered when they became validly married in the State of Utah. The Tenth Circuit recognizes that “‘[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.’” Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). As stated above, Plaintiffs have demonstrated a likelihood of success on the merits that the State is violating their due process and liberty interests by refusing to recognize their validly-entered marriages. The State has placed Plaintiffs and their families in a state of legal limbo with respect to adoptions, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance, and many other property and fundamental rights associated with marriage. These legal uncertainties and lost rights cause harm each day that the marriage is not recognized. The court concludes that these circumstances
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meet the irreparable harm standard under Tenth Circuit precedents. C. Balance of Harms “[I]f the moving party establishes a likelihood of success on the merits, the balance of
harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013). In this case, the laws themselves may not be unconstitutional, but the State’s retroactive application of the marriage bans likely violates Plaintiffs’ constitutional rights. The State has no legitimate interest in depriving Plaintiffs of their constitutional rights.
Although the State has a general interest in representing the wishes of its voters, that interest does not outweigh the harms Plaintiffs face by having their constitutional rights violated. Plaintiffs face significant irreparable harms to themselves and their families–inability to inherit, inability to adopt, loss of custody, lost benefits. The State, however, has demonstrated no real harm in continuing to recognize Plaintiffs’ legally-entered marriages. The State’s harm in the Kitchen litigation with respect to continuing to issue same-sex marriage licenses is not the same as the harm associated with recognizing previously-entered same-sex marriages that were valid at the time they were solemnized. The only relevant harm in this case is the harm that results from requiring the State to recognize Plaintiffs’ marriages.
The State asserts that it is harmed by not being able to enforce the marriage bans retroactively. But the court has already discussed the constitutional concerns associated with a retroactive application of the marriage bans and finds no harm to the State based on an inability to apply the marriage bans retroactively. The State’s marriage bans are currently in place and can
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stop any additional marriages from occurring. The State’s interest is in applying the current law. The court, therefore, concludes that the balance of harms weighs decidedly in Plaintiffs’ favor and supports the court’s issuance of a preliminary injunction.
D. Public Interest “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad, 670 F.3d at 1132. In this case, the court agrees with Plaintiffs that the public is well served by having certainty about the status of Plaintiffs’ marriages. That certainty not only benefits Plaintiffs and there families but State agencies, employers, and other third parties who may be involved in situations involving issues such as benefits, employment, inheritance, child custody, and child care. For the foregoing reasons, the court concludes that Plaintiffs have met the clear and unequivocal standard for obtaining a preliminary injunction during the pendency of this litigation. Plaintiffs have demonstrated that they are likely to succeed on the merits of their federal due process claims, that they will be irreparably harmed if a preliminary injunction does not issue, that the balance of harms weighs in their favor, and that the injunction is in the public interest. Accordingly, Plaintiffs’ motion for a preliminary injunction is granted and the court will enter a preliminary injunction preventing the State from enforcing its marriage bans with respect to the same-sex marriages that occurred in Utah between December 20, 2013, and January 6, 2014.
The State’s Request for Stay Pending Appeal In the event that the court decided to grant Plaintiffs’ motion for a preliminary injunction, the State requested that the court stay the injunction pending appeal. Rule 62(c) provides that “[w]hile an appeal is pending from an interlocutory order . . . that grants . . . an injunction, the
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court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Rule 8(a)(1) of the Federal Rules of Appellate Procedure provides that a party must ordinarily first move in the district court to obtain a stay of the judgment or order of a district court pending appeal. Fed. R. App. P. 8(a)(1).
The purpose of a stay is to preserve the status quo pending appeal. McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996). The court has already determined that the status quo in this case is the State recognizing Plaintiffs’ marriages. Therefore, the State’s request would alter the status quo.
The court considers the following four factors when considering a motion to stay pending appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). “With respect to the four stay factors, where the moving party has established that the three ‘harm’ factors tip decidedly in its favor, the ‘probability of success’ requirement is somewhat relaxed.’” F.T.C. v. Mainstream Marketing Services, Inc., 345 F.3d 850, 852 (10th Cir. 2003) (citations omitted). If the State “can meet the other requirements for a stay pending appeal, they will be deemed to have satisfied the likelihood of success on appeal element if they show ‘questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation.’” McClendon, 79 F.3d at 1020 (quoting Walmer v. United States Dep’t of Defense, 52 F.3d 851, 854 (10th Cir.), cert. denied, 516 U.S. 974, 116 S. Ct. 474, 133 L. Ed. 2d 403 (1995).
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Based on the court’s analysis above, this court believes that its decision is correct and that Plaintiffs, not the State, have demonstrated a clear likelihood of success on the merits. Also, the court has already weighed and balanced the harms involved in issuing its preliminary injunction. Plaintiffs have demonstrated existing clear and irreparable harms if an injunction is not in place. As discussed above, the balance of harms is necessarily tied to the merits of the decision because harm to Plaintiffs’ constitutional rights are given significantly more weight than the State’s harm in not being able to apply its marriage bans retroactively to legally-entered marriages. The irreparable nature of Plaintiffs harms involve fundamental rights such as the ability to adopt, the ability to inherit, child care and custody issues, and other basic rights that would otherwise remain in legal limbo. For these reasons, the court cannot conclude that the harm to the State outweighs the harm to Plaintiffs during pendency of the appeal. The need for certainty also weighs heavily in determining the public interest. Recognition of Plaintiffs’ marriages impacts extended families, employers, hospitals, schools, and many other third parties. The court, therefore, concludes that the State has not met its burden of establishing the factors required for a stay pending appeal.
In its discretion, however, the court grants the State a limited 21-day stay during which it may pursue an emergency motion to stay with the Tenth Circuit. The court recognizes the irreparable harms facing Plaintiffs every day. However, the court finds some benefit in allowing the Tenth Circuit’s to review whether to stay the injunction prior to implementation of the injunction. Therefore, notwithstanding the many factors weighing against a stay, the court, in its discretion, grants the State a temporary 21-day stay.
Motion to Certify Questions of State Law In addition to their Motion for a Preliminary Injunction, Plaintiffs also ask the court to
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certify questions of law to the Utah Supreme Court. Specifically, Plaintiffs ask the court to certify two specific questions: (1) Under Utah law, do same-sex couples who were legally married between December 20, 2013, and January 6, 2014, have vested rights in their marriages which are protected under Article I, Section 7 of the Utah Constitution?; and (2) Once the State of Utah recognized the marriages of same-sex couples entered into between December 20, 2013, and January 6, 2014, could it apply Utah’s marriage bans to withdraw that recognition?
The State opposed Plaintiffs’ motion to certify but has now brought its own Motion to Certify, asking the court to certify the following question: Do same-sex couples who received marriage licenses, and whose marriages were solemnized, between December 20, 2013 and January 6, 2014, have vested property rights in their marriages which now require recognition under present Utah law?
The State opposed Plaintiffs’ motion to certify on the grounds that the answers to Plaintiffs’ proposed questions were clear and the questions were vague and unhelpful to the court. However, after briefing and argument on Plaintiffs’ motion to certify, the State alleges that circumstances changed when some district court judges in Utah’s state courts began ruling that Plaintiffs had vested rights in their marriages.
Rule 41(a) of the Utah Rules of Appellate Procedure provides that “the Utah Supreme Court may answer a question of Utah law certified to it by a court of the United States when requested to do so by such certifying court . . . if the state of the law of Utah applicable to a proceeding before the certifying court is uncertain.” Utah R. App. P. 41(a). The certification order must state (1) the “question of law to be answered,” (2) “that the question certified is a controlling issue of law in a proceeding pending before the certifying court,” and (3) “that there appears to be no controlling Utah law.” Id. 41(c).
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The parties’ requests to certify come to this court in a fairly unusual procedural posture. Claiming that the heart of Plaintiffs’ claims is whether the State’s failure to recognize their marriages violates the Due Process Clause of the Fourteenth Amendment, the State removed Plaintiffs’ case from state court to federal court. The State then opposed Plaintiffs’ motion to certify question to the state court. Now, based on rulings favorable to Plaintiffs in state district courts, the State argues that this court should certify the vested right question to the Utah Supreme Court “to ensure consistency and fairness.”
As demonstrated by the parties’ competing motions, both parties in this case seek a determination from the Utah Supreme Court as to whether Plaintiffs have vested rights in their marriages under Utah law. In determining Plaintiffs’ federal due process claim, this court concluded that Plaintiffs have liberty interests inherent in the Due Process Clause and created by state law. Therefore, the vested rights issue is an important issue of law in this case, but it does not appear to be essential to Plaintiffs’ federal due process claim. However, with respect to the final requirement for certification – that there is no controlling Utah law – this court concluded that, under Utah state law, Plaintiffs clearly and unequivocally demonstrated that they have vested rights in their legally-entered marriages and their vested marriage rights are protected by the federal due process clause regardless of the ultimate outcome of the Kitchen case.
The State asserts that this court should certify the vested rights question to the Utah Supreme Court because state district court judges in several adoption cases have ruled that Plaintiffs’ have vested marriage rights and the State has sought review of those decisions through a writ to the Utah Supreme Court. Although the Utah Supreme Court has granted a stay of the adoption decrees while it considers the issue, the court’s decision to have the issue briefed makes no comment on the merits of the writs. As Plaintiffs’ asserted in their oppositions, there may be
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procedural grounds for dismissal or denial of the writs that would preclude the Utah Supreme
Court from reaching the merits of the issue.
The State asserts that this court could have determined the state law enmeshed with the
federal due process challenge but for the state adoption rulings. This court, however, is not
aware of any case in the Utah state courts that have been favorable to the State’s position. At
most, some district courts have chosen to stay the adoption cases pending a decision on the
validity of the marriages. Several state rulings consistent with this court’s determination that
Plaintiffs have vested rights in their marriages does not provide a basis for concluding that the
issue of state law is uncertain.
Finally, if the court is to consider fairness as the State requests, the court notes that the
State chose this forum by removing the action from state court. Unlike Plaintiffs who seek
certification in order to obtain favorable rulings from both courts, the State seeks to begin the
process anew in a different forum from the one it chose. The court agrees with Plaintiffs that the
State’s late-filed motion to certify, asserting a nearly identical question to those posed by Plaintiffs, appears to be a delay tactic.5
5 The State includes a footnote in its motion to certify stating that the factors warranting the application of the Colorado River abstention doctrine apply in this case. See Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976). However, this case and the current state proceedings are not parallel actions. See Fox v. Maulding, 16 F.3d 1079, 1081 (10th Cir. 1994) (“[A] federal court must first determine whether the state and federal proceedings are parallel.”). The state actions were instituted as adoption proceedings and are before the Utah Supreme Court on emergency writs. The case before this court is a deprivation of due process and liberty interest under state and federal due process. Only one couple in the adoption proceedings overlap with the Plaintiffs in this case. Also, significantly, the rights and remedies at issue in this case are far broader than those at issue in the state court proceedings. Moreover, the only reason both cases are not in State court is because the State removed this case from State court. It strikes the court as procedural gamesmanship for the State to remove a case to federal court and then ask the court in the forum the State chose to abstain from acting. “The decision whether to defer to the state courts is necessarily left to the discretion of the district court in the first instance.” Id. at 1081. Such discretion must be exercised “in light of ‘the virtually
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Utah law clearly provides that rights in a valid marriage vest immediately upon solemnization. There is no further action required to be taken or that could be taken by either party to create the vested right. There is no basis under Utah law for finding that Plaintiffs in this case were required to take steps beyond solemnization in order to obtain vested rights when such steps are not required for other marriages. Because Utah law is clear and not ultimately controlling of the case before this court, the court concludes that there is no basis for certifying the state law questions to the Utah Supreme Court. Accordingly, the parties’ motions to certify state law questions are denied.
CONCLUSION Based on the above reasoning, Plaintiffs Motion for Preliminary Injunction [Docket No. 8] is GRANTED; Plaintiffs’ Motion to Certify Questions of Utah State Law to the Utah Supreme Court [Docket No. 10] is DENIED; and Defendants’ Motion to Certify Questions of Utah State Law to the Utah Supreme Court [Docket No. 34] is DENIED. The following Preliminary Injunction Order is temporarily stayed for twenty-one (21) days to allow the State to seek an emergency stay pending appeal from the Tenth Circuit.
PRELIMINARY INJUNCTION ORDER The court issues the following Preliminary Injunction against Defendants: Defendants State of Utah, Governor Gary Herbert and Attorney General Sean Reyes are prohibited from applying Utah’s marriage bans retroactively to the same-sex marriages that were entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014. Accordingly, Defendants State of Utah, Governor Gary Herbert and
unflagging obligation of the federal courts to exercise the jurisdiction given them.’” Id. (citations omitted). Because these cases are not parallel actions, the court has no discretion to abstain and must exercise its obligation to hear and decide the case presented to it.
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Case 2:14-cv-00055-DAK Document 45 Filed 05/19/14 Page 35 of 35 Attorney General Sean Reyes shall immediately recognize the marriages by same-sex couples entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014, and afford these same-sex marriages all the protections, benefits, and responsibilities given to all marriages under Utah law.
DATED this 19th day of May, 2014. BY THE COURT: DALE A. KIMBALL United States District Judge
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 Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 5 of 106

Erik Strindberg (Bar No. 4154) Lauren I. Scholnick (Bar No. 7776) Kathryn Harstad (Bar No. 11012) Rachel E. Otto (Bar No. 12191) STRINDBERG & SCHOLNICK, LLC 675 East 2100 South, Ste. 350 Salt Lake City, UT 84106 Telephone: (801) 359-4169 Facsimile: (801) 359-4313 erik@utahjobjustice.com lauren@utahjobjustice.com kass@utahjobjustice.com rachel@utahjobjustice.com
Attorneys for Plaintiffs

John Mejia (Bar No. 13965) Leah M. Farrell (Bar No. 13696) ACLU of Utah 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: jmejia@acluutah.org lfarrell@acluutah.org
Joshua A. Block* ACLU LGBT Project 125 Broad Street, Floor 18 New York, New York, 10004 Telephone: (212) 549-2593 Facsimile: (212) 549-2650 jblock@aclu.org
*Pro hac vice motion to follow

IN THE THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH SALT LAKE COUNTY, WEST JORDAN DEPARTMENT

JONELL EVANS, STACIA IRELAND, MARINA GOMBERG, ELENOR HEYBORNE, MATTHEW BARRAZA, TONY MILNER, DONALD JOHNSON, and CARL FRITZ SHULTZ,
Plaintiffs,
vs.
STATE OF UTAH, GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity,
Defendants.

COMPLAINT TIER 2
Case No. Judge

Plaintiffs JoNell Evans, Stacia Ireland, Marina Gomberg, Elenor Heyborne, Matthew Barraza, Tony Milner, Donald Johnson and Carl Fritz Shultz (collectively referred to as the

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“Plaintiffs”) by and through their undersigned attorneys, hereby file this Complaint against the State of Utah, Governor Gary Herbert (“Governor Herbert”) and Attorney General Sean Reyes (“Attorney General Reyes”) (Defendants will collectively be referred to as “Defendants” or “State of Utah”):
NATURE OF THE CLAIMS 1. Plaintiffs are four same-sex couples who were legally married in Utah between December 20, 2013, and January 6, 2014, the period from the day a federal district court in Kitchen v. Herbert enjoined Utah from enforcing its statutory and constitutional bans on allowing same-sex couples to marry to the day that injunction was stayed pending appeal. The moment Plaintiffs solemnized their marriages in accordance with Utah law, they immediately obtained vested rights in the validity and recognition of their marriages under Utah law. Those vested rights are protected by the Due Process Clauses of the Utah and United States Constitutions and must be recognized regardless of the ultimate outcome of the Kitchen litigation. 2. In violation of those constitutional protections, the State of Utah has unilaterally decided to place recognition of these valid marriages “on hold.” By retroactively stripping Plaintiffs’ marriages of legal recognition, the State of Utah has put these couples and their families in legal limbo and prevented legally married same-sex couples from accessing critical protections for themselves and their children. 3. Plaintiffs seek to have the Court declare that their valid marriages must be given immediate and ongoing recognition by the State of Utah and grant all injunctive relief necessary to ensure that recognition.
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BACKGROUND FACTS 4. In 1977, the Utah Legislature amended Section 30-1-2 of the Utah Code to “prohibit[] and declare[] void” marriages “between persons of the same sex” (the “Marriage Limitation Statute”). 5. In 2004, the Utah Legislature added Section 30-1-1.4 to the Utah Code, which reads “the policy of this state [is] to recognize as marriage only the legal union of a man and a woman,” and “this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties [to same sex-couples] that are substantially equivalent to those provided under Utah law to a man and woman because they are married” (the “Marriage Recognition Statute”). 6. Also in 2004 the Utah Legislature passed a “Joint Resolution of Marriage” proposing to amend the Utah Constitution by adding Article I, Section 29, to read: “(1) Marriage consists of only the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” 7. This proposed amendment, known as “Amendment 3,” was on the ballot in the November 2, 2004 general election. Amendment 3 passed and became effective on January 1, 2005. 8. On March 25, 2013, three same-sex couples living in Utah filed a lawsuit in the Federal District Court for the District of Utah against Governor Gary Herbert, then-Utah Attorney General John Swallow, and Salt Lake County Clerk Sherrie Swensen, all acting in their
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official capacities. See Kitchen v. Herbert, 2:13-cv-217 RJS (D. Utah) (referred to herein as Kitchen).
9. The plaintiffs in Kitchen asserted that Amendment 3 and the Marriage Limitation and Recognition Statutes violated the Equal Protection and Due Process Clauses of the U.S. Constitution. The plaintiffs sought declaratory relief that Amendment 3 and the Marriage Limitation and Recognition Statutes are unconstitutional under the Constitution. The parties filed cross-motions for summary judgment.
10. On December 20, 2013, the U.S. District Court in Kitchen denied the defendants’ motion for summary judgment, granted plaintiffs’ motion for summary judgment, and issued a permanent injunction barring Utah officials from enforcing Amendment 3 and the Marriage Limitation and Recognition Statutes. (Attached as Ex. A).
11. The Memorandum Decision and Order by the Kitchen court concluded as follows: 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. 12. The county clerks for Salt Lake County and Washington County began to issue marriage licenses to same-sex couples that same day, in accordance with the Kitchen court’s injunction. Many same-sex couples promptly obtained marriage licenses and solemnized their marriages that same day.
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13. Governor Herbert and the acting Utah Attorney General then filed motions with the U.S. District Court and with the U.S. Court of Appeals for the Tenth Circuit to stay the district court’s order, pending appeal.
14. On December 22, 2013, the U.S. Court of Appeals for the Tenth Circuit denied Governor Herbert and the acting Utah Attorney General’s motion for a stay without prejudice for failing to “meet the requirements of the Federal or local appellate rules.”
15. On December 23, 2013, Governor Herbert and the acting Utah Attorney General filed a second motion to stay the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit denied the second motion the same day.
16. On December 23, 2013, the U.S. District Court also denied defendants’ motion for a stay of the December 20 injunction. The District Court stated in its written Order denying the motion that “The court’s Order [of December 20] 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.”
17. On December 23, 2013, following the U.S. District Court’s denial of a stay, Governor Herbert and the acting Utah Attorney General filed a third motion with the U.S. Court of Appeals for the Tenth Circuit to stay the district court’s order.
18. As of December 23, 2013, officials in seven counties in Utah had either closed their offices or were publicly refusing to issue marriage licenses to same-sex couples, while officials in the other 22 counties publicly stated that they would. (See Utah counties split on issuing same-sex marriage licenses, Salt Lake Trib., Dec. 23, 2013, accessible at http://www.sltrib.com/sltrib/news/57302939-78/counties-county-couples-issuing.html.csp.)
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19. On December 24, 2013, Governor Herbert’s office sent an email to his cabinet with the following directive: “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.” (Attached as Ex. B.)
20. Also on December 24, 2013, a spokesman for the Utah Attorney General’s Office publicly stated that county clerks who did not issue licenses could be held in contempt of the court and the law. (See Denying same-sex marriage licenses illegal, says A.G. office, Salt Lake Trib., Dec. 24, 2013, accessible at http://www.sltrib.com/sltrib/news/57306295-78/county-sexmarriage-office.html.csp.)
21. Later that day, also on December 24, 2013, the U.S. Court of Appeals for the Tenth Circuit for the third time denied Governor Herbert and the acting Utah Attorney General’s motion for a stay.
22. By December 26, 2013, officials in 28 of Utah’s 29 counties stated that they would issue marriage licenses to same-sex couples. (See Same-sex couples shatter marriage records in Utah, Salt Lake Trib., Dec. 26, 2013, accessible at http://www.sltrib.com/sltrib/mobile/57310957-68/marriages-sex-county-total.html.csp.)
23. An official in Piute County, the one county that was not making public statements on December 26, 2013 about whether it would issue licenses, later stated that the county had decided to issue same-sex licenses on December 24, 2013, but had received no applications. (Utah issues hundreds of marriage licenses to gay couples, Associated Press, Dec. 28, 2013, accessible at http://www.krextv.com/story/utah-issues-hundreds-of-marriage-licenses-to-gaycouples-20131228.)
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24. Governor Herbert and Attorney General Reyes waited until December 31, 2013 to file a request for a stay of the district court’s order with the U.S. Supreme Court.
25. Between December 20, 2013 and January 6, 2014, it is estimated that over 1,300 same sex couples were issued Utah marriage licenses. (Same-sex couples denied Utah marriage licenses in court order’s wake, Salt Lake Trib., Jan. 6, 2014, accessible at http://www.sltrib.com/sltrib/news/57357867-78/county-marriage-couple-sex.html.csp.)
26. While there are no reported counts of how many of those granted licenses solemnized their marriages before January 6, 2014, on information and belief, over 1,000 samesex couples solemnized their marriages before that date. It is reported that all but seven counties in Utah issued at least one marriage license to a same-sex couple during that period. (Id.)
27. On January 6, 2014, the United States Supreme Court ruled on Governor Herbert and Attorney General Reyes’s motion in Kitchen and issued the following Order:
“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.” 28. The Supreme Court’s Order staying the Kitchen court’s decision did not address the legal status of the marriages that same-sex couples entered into in Utah between December 20, 2013, and January 6, 2014. 29. That same day, January 6, 2014, Attorney General Reyes issued a statement that reads in part, “Utah’s Office of Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally.” (Attached as Ex. C.)
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30. On January 8, 2014, Governor Herbert’s chief of staff issued an email to the Governor’s cabinet members instructing them to refuse to grant recognition to same-sex couples married pursuant to Utah marriage licenses (the “Directive”). (Attached as Ex. D.)
31. The Directive begins by stating that soon after the December 20, 2013 injunction, “this office sent an email to each of you soon after the district court decision, directing compliance” with that order. (Id.)
32. The Directive explained that the Supreme Court had stayed the Kitchen order and stated that “[b]ased on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice.” (Id.)
33. The Directive then stated that its recipients should “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.” (Id.)
34. The Directive went on to give the following instruction to state agencies: 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. (Id.) 35. On January 9, 2014, Attorney General Reyes issued a letter to county attorneys and county clerks which states that he seeks to provide “legal clarification about whether or not to mail or otherwise provide marriage certificates to persons of the same sex whose marriage
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ceremonies took place between December 20, 2013 and January 6, 2014, prior to the issuance of the stay by the U.S. Supreme Court.” (Attached as Ex. E.)
36. Attorney General Reyes continued that “[a]lthough 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.” (Id., emphasis added.)
37. Attorney General Reyes further indicated that the State of Utah would not challenge the validity of those marriages for the purposes of recognition by the federal government or other states, nonetheless “the validity of the marriages in question must ultimately be decided by the legal appeals process presently working its way through the courts.” (Id.)
38. Attorney General Reyes also explained that “the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law” and “would allow, for instance, same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage.” (Id.)
39. On January 15, 2014, the Utah State Tax Commission issued a notice stating that same-sex couples “may file a joint return if they [were] married as of the close of the tax year” for 2013 because “[a]s of December 31, 2013, the Supreme Court had not yet issued its stay of the District Court’s injunction.” (Attached as Ex. F.)
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40. The notice further states: “This notice is limited to the 2013 tax year. Filing information for future years will be provided as court rulings and other information become available.” (Id.)
PLAINTIFFS Marina Gomberg and Elenor Heyborne
41. Plaintiffs Marina Gomberg and Elenor Heyborne were both born and raised in Utah. Ms. Gomberg was raised in a Jewish family in Ogden, and Ms. Heyborne comes from an LDS family in Salt Lake City.
42. Ms. Gomberg and Ms. Heyborne met nine years ago through mutual friends, and have been in a committed relationship ever since.
43. Ms. Gomberg and Ms. Heyborne both work in communications and Ms. Heyborne is a State employee.
44. Ms. Gomberg and Ms. Heyborne had a commitment ceremony in May 2009 but the State did not recognize their union or afford them any of the rights of married couples.
45. For the last couple of years they have been contemplating having a baby, but they are worried about protecting their family because the State will only allow one of them to be a legal parent to any children they have together. They had hoped being legally married would resolve this concern.
46. Within an hour of learning of the Kitchen decision, Ms. Gomberg and Ms. Heyborne rushed to the Salt Lake County building to obtain their marriage license and solemnized their marriage that same day. They were thrilled that their State was finally going to sanction their union and recognize their marriage.
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47. Although they have supportive and loving family and friends, once they were legally married, Ms. Gomberg and Ms. Heyborne realized how anxious they had been in what the State considered a second-class relationship. The disadvantageous tax status, lack of guaranteed hospital visitation, and inability to both be legal guardians of their future children had created an enormous emotional weight, which was lifted by their legal marriage.
48. The State’s refusal to continue to recognize their marriage raises again all their concerns and anxiety.
49. Despite the fact that Ms. Gomberg and Ms. Heyborne feel disregarded and insulted by the State, it rankles them when people suggest they move elsewhere. They are committed to their community in Utah – they have jobs, family, and friends here. They are hoping to raise a family in the State they grew up in and continue to love. Matthew Barraza and Tony Milner
50. Plaintiffs Matthew Barraza and Tony Milner have been in a committed and loving relationship for nearly 11 years.
51. Mr. Barraza is an attorney and Mr. Milner is the executive director of a non-profit organization serving homeless families.
52. Mr. Barraza and Mr. Milner are lifelong Utahns. Mr. Milner was born and raised in an LDS family in West Jordan. Mr. Barazza, one of six siblings, was born in California but his family, who are also LDS, moved to Ogden when he was one year old.
53. In 2007, Mr. Barraza and Mr. Milner held a religious commitment ceremony officiated by their pastor, Erin Gilmore of Holladay United Church of Christ, and have since referred to themselves as husbands and married. But this commitment was not recognized by the
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State of Utah. 54. Mr. Barraza and Mr. Milner had been contemplating starting a family when, in
2009, a struggling couple they knew who were expecting a baby approached them and asked if they would consider adopting the child. Mr. Barraza and Mr. Milner were overjoyed by the prospect of welcoming a child into their family. They attended all of the birth mother’s prenatal appointments with her and attended the birth, where Mr. Milner got to cut their son’s umbilical cord.
55. Their son, “J.,” is now four years old. Although Mr. Barraza and Mr. Milner have raised J. from birth, only one of them was able to adopt J. and establish legal parentage under Utah law. Mr. Barraza is the adoptive parent, which means that Mr. Milner is treated as a legal stranger to their son, and if something were to happen to Mr. Barraza, J. could potentially be placed in foster care.
56. In 2010, Mr. Barraza and Mr. Milner traveled to Washington, D.C., to get married. Although they were legally married in D.C., Amendment 3 prevented them from having their marriage recognized in Utah.
57. Even though that marriage was not recognized by the State, they chose to remain in Utah where they have tremendous family and community support. They want to continue to live, work and raise their son here.
58. When they heard that Amendment 3 was ruled unconstitutional, Mr. Barraza and Mr. Milner were thrilled to finally have all of the legal protections that come with marriage. Most importantly, their marriage would allow Mr. Milner to establish legal parentage with J. through a second-parent adoption. They wanted to give J. the security of having two legal
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parents, and they wanted the peace of mind knowing that if something were to happen to Mr.

Barraza, J. would have another legally recognized parent who could care and provide for him.

59. On December 20, 2013, Mr. Barraza and Mr. Milner obtained a Utah marriage

license and were married by Pastor Tom Nordberg of Holladay United Church of Christ that

same day.

60. Immediately after Christmas, on December 26, 2013, Mr. Barraza and Mr.

Milner initiated proceedings in the court for Mr. Milner to adopt their son. They received a

hearing date of January 10, 2014.

61. On January 9, 2014, however, the court contacted Mr. Barraza and Mr. Milner

and informed them that because of the stay in Kitchen, and because of Governor Herbert’s and

Attorney General Reyes’s announcements to State agencies to not recognize same-sex marriages,

the court had decided that it should provide notice of the adoption proceedings to the Attorney

General’s office so that the Attorney General could intervene.

62. Faced with the potential that the State could attempt to thwart J.’s adoption, Mr.

Barraza and Mr. Milner requested that the court continue the hearing to January 31, 2014.

63. At this point, Mr. Barraza and Mr. Milner will have to put the proceedings

completely on hold until they are sure that Mr. Milner can adopt J. without State interference.

64. The State’s refusal to recognize their legal marriage has again destroyed the peace

of mind they would have received by providing J. two legal parents.

JoNell Evans and Stacia Ireland

65. Plaintiffs JoNell Evans, 61 years old, and Stacia Ireland, 60 years old, have been

in a committed relationship for 13 years.

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66. Ms. Ireland taught math to junior high and high school students for 30 years before semi-retiring. She now works part-time at a community college helping students with disabilities.
67. Ms. Evans is an artist and a human resources director for a non-profit organization.
68. Ms. Evans and Ms. Ireland have lived in Utah their entire adult lives. Their home is located on property in West Valley City that has been in Ms. Evans’s family for generations. Much of their family lives in the same neighborhood.
69. In 2007, Ms. Evans and Ms. Ireland affirmed their commitment with a religious marriage ceremony at the Unitarian Church in Salt Lake City. But their commitment was not recognized by the State of Utah.
70. In 2008, Ms. Evans and Ms. Ireland had wills and medical powers of attorney drawn up. They knew other same-sex couples who had been treated as legal strangers by hospitals, and they wanted to ensure this would not happen to them, should either of them be hospitalized.
71. In 2010, Ms. Ireland suffered a heart attack. Before they left for the hospital, Ms. Evans scrambled to locate a copy of Ms. Ireland’s power of attorney. With documents in hand, the hospital tolerated Ms. Evans’s insistence that she stay by Ms. Ireland’s side during her treatment, but the hospital did not treat Ms. Evans like it would a spouse. As Ms. Evans describes it, “It felt like I wasn’t even in the room.”
72. On December 20, 2013, Ms. Evans learned of the Kitchen decision. She rushed to the Salt Lake County building and called Ms. Ireland to meet her there. After standing in line for
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a few hours, the couple received their marriage license, and Salt Lake City Mayor Ralph Becker solemnized their marriage. They were surrounded by other couples and friends, all there to celebrate the right of same-sex couples to finally marry. The only downside to the whirlwind wedding was that their families could not make it there to witness their ceremony.
73. On January 1, 2014, Ms. Evans again had to rush Ms. Ireland to the emergency room because Ms. Ireland was experiencing severe chest pains. Prior to their visit, Ms. Ireland had informed the hospital that she had married Ms. Evans and during their stay in the hospital, Ms. Evans was afforded all the courtesies and rights given to the married spouse of a patient. For example, the hospital allowed Ms. Evans to sign paperwork for Ms. Ireland and consulted with her on all aspects of Ms. Ireland’s treatment.
74. On the day after Governor Herbert directed State agencies to no longer recognize the marriages of same-sex couples in Utah, Ms. Ireland had to return to the hospital for a followup procedure. Once again, they had to face uncertainty and anxiety that the hospital would treat Ms. Evans like a non-entity instead of a spouse.
75. Ms. Evans and Ms. Ireland now worry that during any future emergency hospital visits, and even during routine care, they will no longer be afforded the same protections as other married couples. Donald Johnson and Carl Fritz Shultz
76. Plaintiffs Donald Johnson and Carl Fritz Shultz met in 1992, and have been “best friends and partners” for over 21 years.
77. Mr. Johnson was born and raised in Utah, attended the University of Utah, and has taught special education high school juniors and seniors in the same school district for 37
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years. 78. Mr. Shultz was raised in southern Idaho and attended Idaho State University. He
came to Utah to begin his career in retail sales. 79. Mr. Johnson and Mr. Shultz started dating around Labor Day in 1992. After
having to spend Thanksgiving apart that year, they both realized that they wanted to spend their lives together. When Mr. Shultz returned from his family trip, Mr. Johnson proposed to him. They have celebrated the Sunday after Thanksgiving as their anniversary ever since.
80. Mr. Johnson and Mr. Shultz have been a vital and important part of their closeknit neighborhood for many years. They describe themselves as the “neighbors who lend a hand” when it is needed. They love taking care of their neighbors’ dogs, and keeping an eye on neighbors’ houses when they go on vacation. Mr. Johnson and Mr. Shultz are always pitching in to shovel neighbors’ walks and mow lawns.
81. On the Saturday morning after the Kitchen decision, Mr. Johnson and Mr. Schultz were sitting at breakfast when Mr. Shultz reached over the table, took Mr. Johnson’s hand, and suggested they get married.
82. Mr. Johnson and Mr. Shultz had been considering going to California to marry, but were elated to be able to marry in their home state.
83. On December 22, 2013, Mr. Johnson got up at midnight, put on a suit, and went to stand in line at the Salt Lake County building at 2 a.m. Mr. Shultz joined him at 6 a.m. They finally got their marriage license at around 10 a.m. on December 23, 2013, and solemnized their marriage immediately.
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juniors and seniors and tell them that he had married his partner of 21 years over the holidays and that “yes, indeed, [he] was a gay man” meant he no longer had to hide who he is and made him immensely proud and happy. When he told them, Mr. Johnson’s students burst into applause for him.
85. Now that the State of Utah has refused to continue to recognize same-sex marriages, Mr. Johnson and Mr. Shultz feel that they have again been relegated to second-class citizenship in their own state.
86. Mr. Johnson is 61 years old, and Mr. Shultz is 58 years old. Mr. Johnson researched insurance coverage for himself and Mr. Shultz and discovered that they could have access to savings of approximately $8,000 per year on health insurance that they will lose without State recognition of their marriage.
FIRST CAUSE OF ACTION (Deprivation of Plaintiffs’ Property and Liberty Interests without Due Process in
Violation of the Utah Constitution) 87. Plaintiffs reallege and incorporate by reference the allegations set forth above. 88. After the December 20, 2013 Kitchen ruling, Plaintiffs and other same-sex couples were legally permitted to marry in the State of Utah. 89. To perfect that legal right, Plaintiffs completed each step required by the state of Utah under Utah Code Title 30 Chapter 1: They acquired valid marriage licenses from a county clerk and solemnized their marriages before an authorized person who then returned the license and marriage certificate to the county clerk. Upon information and belief, the county clerk then filed and preserved the license and certificate.
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90. The validity of those marriages was contemporaneously recognized by the State of Utah as evidenced by an email from Governor Herbert’s office to his cabinet dated December 24, 2013, in which his office directed them to comply “with the federal judge’s ruling until such time that the current district court decision is addressed by the 10th Circuit Court.” The State of Utah’s contemporaneous recognition of these marriages is further evidenced by a statement made by the Attorney General’s Office that same day warning county officials that denying same sex couples marriage licenses could constitute contempt of the court and the law.
91. The validity of those marriages, including Plaintiff’s marriages at the time they were solemnized, was further recognized by the State of Utah in another email from Governor Herbert’s office to his cabinet dated January 8, 2014, in which his office stated, in part, “[a]fter 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.”
92. The validity of those marriages, including Plaintiffs’ marriages, was also recognized and acknowledged the next day when Attorney General Reyes directed the county clerks to provide a marriage certificate to all couples whose marriage was performed between December 20, 2013, and January 6, 2014.
93. Further recognition of those marriages, including Plaintiffs’ marriages, occurred on January 15, 2013, when the Utah State Tax Commission issued a notice that same-sex couples could file as married for the 2013 tax year if they were married as of December 31, 2013.
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94. By properly availing themselves of their legal right to marry and completing the necessary steps to solemnize their marriages, Plaintiffs – like any legally married different-sex couples – acquired certain property and liberty interests under Utah law attendant upon and arising from their marriages.
95. Those interests are fundamental and encompass a panoply of rights. These interests have been described by the U.S. Supreme Court, in discussing the liberty interest protected by the U.S. Constitution, as the right to establish a home, raise children, and enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free persons. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
96. Plaintiffs’ vested rights in the recognition of their marriages do not depend on the ultimate outcome of the Kitchen litigation in federal court. Whether or not the U.S. District Court’s decision in Kitchen is ultimately affirmed, Plaintiffs obtained vested rights in the validity and recognition of their marriages once those marriages were solemnized in accordance with Utah law.
97. Article I, Section 7 of the Utah Constitution guarantees that “[n]o person shall be deprived of life, liberty or property, without due process of law.” Because those liberty and property interests and rights vested once the Plaintiffs were married, they are subject to the protections of Article 1, Section 7 and thereafter, the State of Utah could not interfere with those rights, or otherwise interfere in the Plaintiffs’ marriages.
98. Nonetheless, on January 7, 2014, Governor Herbert, on advice of Attorney General Reyes, directed his Cabinet to place “on hold” recognition of same-sex marriages,
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including those of Plaintiffs, who had already completed the legal requirements required by the State of Utah and therefore were validly married under then-existing law.
99. By taking this action, and retroactively stripping Plaintiffs’ marriages of legal recognition, the State of Utah acted without legal authority and deprived Plaintiffs, and all other same-sex couples who had been legally married, of those liberty and property rights and interests protected by Article 1, Section 7 of the Utah Constitution.
100. By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of all same-sex married couples, including Plaintiffs and their families and children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives. For example, they may be unable to obtain health insurance for their spouses and children, may not be able to make medical decisions about their spouses and family members if the need arises, may not complete stepparent adoptions to protect the legal status of their families, and if the biological parent of their child or children dies, may not be able to retain custody of their children, who may be placed into foster care.
101. This uncertainty leaves Plaintiffs in a constant state of insecurity and uncertainty that is emotionally devastating. And because their marriages are valid and must be recognized regardless of the outcome of the Kitchen appeal, and because the Directive is indefinite in nature, this state of insecurity may last for years.
102. The State of Utah’s actions also imposed immediate dignitary harm on married same-sex couples and their families, including Plaintiffs, by creating second-class marriages in Utah that do not enjoy the rights and privileges of different-sex marriages. Like the law struck down in United States v. Windsor, 133 S. Ct. 2675 (2013), the State of Utah’s decision to place
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same-sex couples’ marriages “on hold” “deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities.” Id. at 2694. “By this dynamic [the Governor’s Directive] undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [Utah’s] recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. . . .And it humiliates [the] children now being raised by same-sex couples.” Id.
103. As a result, Plaintiffs have been injured and are entitled to declaratory, injunctive, and equitable relief as set forth in the Prayer for Relief.
SECOND CAUSE OF ACTION (Deprivation of Plaintiffs’ Property and Liberty Interests Protected by The United States Constitution in Violation of 42 U.S.C. § 1983 – Against Defendants
Governor Herbert and Attorney General Reyes) 104. Plaintiffs reallege and incorporate by references the paragraphs set forth above. 105. After the December 20, 2013, ruling Plaintiffs were legally permitted to marry in Utah. 106. To perfect that legal right, Plaintiffs completed each step required by the State of Utah under Utah Code Title 30 Chapter 1: They acquired valid marriage licenses from a county clerk; solemnized their marriages before an authorized person who then returned the license and marriage certificate to the county clerk; and, upon information and belief, the county clerk then filed and preserved the license and certificate. 107. The validity of those marriages, including Plaintiffs’ marriages, was recognized by the State of Utah as evidenced by an email from Governor Herbert’s office to his cabinet
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dated December 24, 2013, in which his office directed them to comply “with the federal judge’s

ruling until such time that the current district court decision is addressed by the 10th Circuit

Court.” It was further evidenced by a statement made by the Utah Attorney General’s Office

that same day that warned county clerks denying same sex couples marriage licenses could

constitute contempt of the court and the law.

108. The validity of those marriages, including Plaintiffs’ marriages, at the time they

were solemnized, was further recognized by the State in another email from Governor Herbert’s

office to his cabinet dated January 8, 2014, in which his office stated, in part, “[a]fter 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.”

109. Further recognition of the validity of those marriages, including Plaintiffs’

marriages, also occurred the next day when Attorney General Reyes directed the county clerks to

provide a marriage certificate to all couples whose marriage was performed between December

20, 2013, and January 6, 2014.

110. Further recognition of those marriages, including Plaintiffs’ marriages, occurred

on January 15, 2013, when the Utah State Tax Commission issued a notice that same-sex couples

could file as married for the 2013 tax year if they were married as of December 31, 2013.

111. By properly availing themselves of their legal right to marry and completing the

necessary steps to solemnize their marriages, Plaintiffs – like any legally married different-sex

couples – acquired certain property and liberty interests under Utah law attendant upon and

arising from their marriages.

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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 27 of 106
112. Those interests are fundamental and encompass a panoply of rights. These have been described by the U.S. Supreme Court, in discussing the liberty interest protected by the U.S. Constitution, as the right to establish a home, raise children, and enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free persons. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
113. Plaintiffs’ vested rights in the recognition of their marriages do not depend on the ultimate outcome of the Kitchen litigation in federal court. Whether or not the U.S. District Court’s decision in Kitchen is ultimately affirmed, Plaintiffs obtained vested rights in the validity and recognition of their marriages once those marriages were solemnized in accordance with Utah law.
114. 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.
115. Nonetheless, on January 7, 2014, Governor Herbert, on advice of Attorney General Reyes, directed his Cabinet place “on hold” recognition of same-sex marriages, including those of Plaintiffs and not to afford them any of the protections that the State will continue to afford to different-sex couples who were married during the same period.
116. By taking this action, and retroactively stripping Plaintiffs’ marriages of legal recognition, the State of Utah acted without legal authority and deprived Plaintiffs, who had been legally married, of those liberty and property rights and interests protected by the Due Process Clause of the Fourteenth Amendment.
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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 28 of 106
117. By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of Plaintiffs’ families, including their children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives. For example, they may be unable to obtain health insurance for their spouses and children, will not be able to make medical decisions about their spouses and family members if the need arises, may not complete stepparent adoptions to protect their families, and if the biological parent of their child or children dies, may not be able to retain custody of their children, who may be placed into foster care.
118. This uncertainty leaves Plaintiffs in a constant state of insecurity and uncertainty which is emotionally devastating, and which is likely to significantly and negatively impact them, their spouses, and their children in a multitude of ways. And because these marriages are valid and must be recognized regardless of the outcome of the Kitchen appeal, and because the Directive is indefinite in nature, this state of insecurity may last for years.
119. The State of Utah’s actions also imposed immediate dignitary harm on married same sex couples and their families by creating second-class marriages that do not enjoy the rights and privileges of different-sex marriages. Like the law struck down in United States v. Windsor, 133 S. Ct. 2675 (2013), Utah’s decision to place same-sex couples’ marriages “on hold” “deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities.” Id. at 2694. “By this dynamic [the Governor’s Directive] 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
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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 29 of 106
[Utah’s] recognition. This places same-sex couples in an unstable position of being in a secondtier marriage. . . .And it humiliates [the] children now being raised by same-sex couples.” Id.
120. At all times, the Defendants were acting under color of state law when committing the complained of acts. In addition, the Governor is the final policy making authority for the State of Utah and exercised that authority in violating Plaintiffs’ constitutional rights.
121. As a result, Plaintiffs have been injured and are entitled to declaratory, equitable, and injunctive relief pursuant to 42 U.S.C. § 1983. Plaintiffs are also entitled to recover their attorney’s fees and costs incurred in bringing this action pursuant to 42 U.S.C. § 1988.
THIRD CAUSE OF ACTION (Relief under Rule 65B)
122. Plaintiffs reallege and incorporate by reference the paragraphs set forth above. 123. Rule 65B of the Utah Rules of Civil Procedure allows a person to seek extraordinary relief from acts involving the wrongful use of public authority, or when a governmental official has failed to perform an act required by law, “where no other plain, speedy and adequate relief is available.” 124. More specifically, under subpart (c)(2)(A) of Rule 65B, relief may be granted when a government employee engages in the wrongful use of his public authority. This includes “where a person usurps, intrudes into, or unlawfully holds or exercises a public office . . .” (emphasis added).
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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 30 of 106
125. Appropriate relief may also be granted under subpart (d)(2): “(B) where an inferior court, administrative agency, corporation, or persons has failed to perform an act required by law as a duty of office, trust or station . . . ”
126. As set forth above, each of Plaintiff couples obtained marriage licenses as required by, and in conformance with, Utah Code Ann. § 30-1-7. Thereafter, each Plaintiff couple had their marriages solemnized within 30 days in front of a person authorized by statute to solemnize their marriage, and otherwise fully complied with, Utah Code Ann.§ 30-1-6.
127. Each of Plaintiffs’ marriages was complete and valid and they were thereafter entitled to all of the rights, benefits and privileges afforded to married couples, as well as being subject to all obligations and responsibilities attendant upon married couples.
128. The validity of those marriages was recognized by the State of Utah as evidenced by an email from the Governor to his cabinet dated December 24, 2013; in another email dated January 8, 2014; when the Attorney General directed the county clerks to provide marriage certificates to Plaintiffs and other same-sex couples; and when the Utah State Tax Commission issued a notice that same-sex couples could file as married for the 2013 tax year if they were married as of December 31, 2013.
129. Notwithstanding that Plaintiffs have fully complied with the requirement of Utah Code Ann.§ 30-1-1, et seq., and are now validly married under the laws of Utah, the State of Utah now refuses to “recognize” those marriages, or provide Plaintiffs with any of the protections and responsibilities attendant upon and to all other valid marriages.
130. By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of Plaintiffs’ families, including their children, in legal limbo, which creates
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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 31 of 106
uncertainty as to their rights and status in virtually all areas of their lives. For example, they may be unable to obtain health insurance for their spouses and children, will not be able to make medical decisions about their spouses and family members if the need arises, and if the biological parent of their child or children dies, may not be able to retain custody of their children, who may be placed into foster care.
131. This uncertainty leaves Plaintiffs in a constant state of insecurity and uncertainty which is emotionally devastating, and which is likely to significantly and negatively impact them, their spouses, and their children in a multitude of ways. And because these valid marriages must be recognized regardless of the outcome of the Kitchen appeal, and because the Directive is indefinite in nature, this state of insecurity may last for years.
132. By taking this action, and retroactively stripping plaintiffs’ marriages of legal recognition, the State of Utah acted without legal authority, arbitrarily and capriciously, and deprived Plaintiffs, and all other same-sex couples who had been legally married, of those liberty and property rights and interests protected by Article 1, Section 7 of the Utah Constitution and the Due Process Clause of the Fourteenth Amendment.
133. Plaintiffs and their families have been injured by the illegal conduct of the Defendants, and will continue to be injured until the State of Utah recognizes their marriages. Plaintiffs are accordingly entitled to the relief detailed in the Prayer for Relief.
134. Plaintiffs have no other plain, speedy, and adequate remedy available as to the issues raised in this Complaint because Plaintiffs’ vested rights in the recognition of their marriages do not depend on the ultimate outcome of the Kitchen litigation in federal court. Whether or not the U.S. District Court’s decision in Kitchen is ultimately affirmed, Plaintiffs
- 27 -

Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 32 of 106
obtained vested rights in the validity and recognition of their marriages once those marriages were solemnized in accordance with Utah law.
135. Plaintiffs request that if this Court cannot resolve this matter based on the pleadings that it issue an order requiring the parties to appear at an expedited hearing on the merits as provided for under Rule 65B(d)(3).
FOURTH CAUSE OF ACTION (Declaratory Judgment)
136. Plaintiffs reallege and incorporate by reference the paragraphs set forth above. 137. Pursuant to Utah Code Ann. § 78B-6-401(1) this Court has the authority to issue a declaratory judgment that determines the “rights, status and other legal relations within its respective jurisdiction.” Further, that declaration may be either affirmative or negative in form and effect. Utah Code Ann. § 78B-6-401(2). 138. A person whose rights, status, and legal relations are affected by a statute may also request that “the district court to determine any question of construction or validity arising under that . . . statute” and “obtain a declaration of rights, status or other legal relations.” Utah Code Ann. § 78B-6-401(2). 139. Importantly, the Utah Legislature has mandated that the declaratory judgment act must be liberally construed. Utah Code Ann. § 78B-6-412 reads as follows: This chapter is to be remedial. Its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.
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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 33 of 106
140. As set forth above, Plaintiffs fully complied with the requirements of Utah law regarding marriage, and therefore have valid marriages according to Utah law. In addition, the State of Utah recognized those marriages as valid at the time they were performed.
141. Notwithstanding the validity of those marriages and the prior recognition given to them by the State of Utah, the State of Utah has now unilaterally declared that it will no longer recognize those marriages or afford Plaintiffs the protections and responsibilities that it legally affords to all other married couples.
142. By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of Plaintiffs’ families, including their children, in legal limbo, which creates uncertainty as to their rights and status in virtually all areas of their lives. For example, they may be unable to obtain health insurance for their spouses and children, will not be able to make medical decisions about their spouses and family members if the need arises, and if the biological parent of their child or children dies, may not be able to retain custody of their children, who may be placed into foster care.
143. This uncertainty leaves Plaintiffs in a constant state of insecurity and uncertainty which is emotionally devastating, and which is likely to significantly and negatively impact them, their spouses, and their children in a multitude of ways. And because these valid marriages must be recognized regardless of the outcome of the Kitchen appeal, and because the Directive is indefinite in nature, this state of insecurity may last for years.
144. By taking this action, and retroactively stripping plaintiffs’ marriages of legal recognition, the State of Utah acted without legal authority, arbitrarily and capriciously, and deprived Plaintiffs and all other same-sex couples who had been legally married of those liberty
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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 34 of 106

and property rights and interests protected by Article 1, Section 7 of the Utah Constitution and

the Due Process Clause of the Fourteenth Amendment.

145. Plaintiffs seek a declaration from the Court that because their marriages are valid

under Utah Code Ann. § 30-1-1, et seq., and have been previously recognized by the State of

Utah, that:

a. The State of Utah must continue to recognize the marriages by all same-

sex couples entered into pursuant to Utah marriage licenses issued

between December 20, 2013, and January 6, 2014, including Plaintiffs’

marriages, and afford those couples and their families with all of the

protections and responsibilities given to married couples under Utah law.

b. The State must withdraw its Directive not to recognize the marriages by

all same-sex couples entered into pursuant to Utah marriage licenses

issued between December 20, 2013, and January 6, 2014, including

Plaintiffs’ marriages, and must in all respects treat and recognize them as

married.

c. The reimplementation of Amendment 3, the Marriage Limitation Statute,

the Marriage Recognition Statute, and any other statute preventing same-

sex couples from marrying does not retroactively strip recognition from

the same-sex marriages entered into pursuant to Utah marriage licenses

issued between December 20, 2013 and January 6, 2014, or otherwise

impair the protections and responsibilities that such marriages are subject

to under Utah law.

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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 35 of 106
146. Plaintiffs also request that the court award them the costs they incurred in bringing this action, pursuant to Utah Code Ann. § 78B-6-411.
PRAYER FOR RELIEF Wherefore, Plaintiffs pray for the following relief: A. A declaratory judgment stating that because the marriages by same-sex couples
entered into pursuant to Utah marriage licenses issued between December 20, 2013, and January 6, 2014, including Plaintiffs’ marriages, are valid under U.C.A. §30-1-1, et seq., and have been previously recognized by the State of Utah, that the State of Utah must continue to recognize those marriages, and afford those couples, including Plaintiffs, and their families with all of the protections and responsibilities given to all married couples under Utah law. B. An injunction ordering the State of Utah to withdraw any of its officials’ instructions, such as the Directive, not to recognize the marriages by same-sex couples entered into pursuant to Utah marriage licenses issued between December 20, 2013, and January 6, 2014, including Plaintiffs’ marriages, and must in all respects treat them as married. C. A declaratory judgment stating that the reimplementation of Amendment 3, the Marriage Limitation Statute, the Marriage Recognition Statute, and any other statute preventing same sex couples from marrying does not retroactively strip recognition from the marriages by same-sex couples entered into pursuant to Utah marriage licenses issued between December 20, 2013 and January 6, 2014, including Plaintiffs’
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Case 2:14-cv-00055-DAK Document 1 Filed 01/28/14 Page 36 of 106
marriages, or otherwise impair the protections and responsibilities that such marriages are subject to under Utah law. D. An order pursuant to Rule 65B of the Utah Rules of Civil Procedure directing State officials as follows: to immediately recognize the marriages by same-sex couples entered into pursuant to Utah marriage licenses issued between December 20, 2013, and January 6, 2014, including Plaintiffs’ marriages, as valid marriages; to afford all such couples, including Plaintiffs, and their families with all of the protections and responsibilities given to all married couples under Utah law; and to cease making representations that the federal appellate courts will decide whether their current refusals are lawful in the Kitchen suit. E. Attorneys’ fees and costs related to the litigation of this action. F. Any other relief the court deems just and proper.
DATED this 21st day of January, 2014. STRINDBERG & SCHOLNICK, LLC
/s/ Erik Strindberg Erik Strindberg Lauren Scholnick Kathryn Harstad Rachel Otto Attorneys for Plaintiffs
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 Appellate Case: 14-4060 Document: 01019277937 Date Filed: 07/11/2014 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT

July 11, 2014

JONELL EVANS; STACIA IRELAND; MARINA GOMBERG; ELENOR HEYBORNE; MATTHEW BARRAZA; TONY MILNER, DONALD JOHNSON; CARL FRITZ SHULTZ,

Elisabeth A. Shumaker Clerk of Court

Plaintiffs-Appellees, v.

No. 14-4060 (D.C. No. 2:14-CV-00055-DAK)
(D. Utah)

STATE OF UTAH; GARY HERBERT, in his official capacity as Governor of Utah; SEAN REYES, in his official capacity as Attorney General of Utah,

Defendants-Appellants.

ORDER

Before KELLY, LUCERO, and HOLMES, Circuit Judges.
The State of Utah defendants have appealed from the district court’s grant of a preliminary injunction that requires them to recognize marriages that were licensed and solemnized in Utah during the window of time between when the federal district court struck down Utah’s same-sex marriage ban and when the Supreme Court issued a stay of the district court’s order. They filed a motion asking this court to stay the district court’s injunctive ruling, pending this court’s decision on appeal. We granted a temporary stay on June 5, 2014, to consider the stay motion, response, and reply.

Appellate Case: 14-4060 Document: 01019277937 Date Filed: 07/11/2014 Page: 2
To receive a stay pending appeal, a movant must address four things: (1) the likelihood of success on the merits of their appeal; (2) whether they will suffer irreparable harm absent a stay; (3) the absence of harm to the opposing parties; and (4) whether a stay is in the public interest. 10th Cir. R. 8.1; FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003). In this case, there is harm on both sides of the stay question, which means there is no relaxation of the likelihood-of-success-on-appeal standard. See Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006). And to succeed on the merits of their appeal, appellants will be required to show that the district court abused its discretion in granting a preliminary injunction. See id.
We conclude that appellants have not made showings sufficient to warrant a stay pending appeal. We will, however, leave the temporary stay in place until 8:00 a.m., MDT, on Monday, July 21, 2014, to allow appellants time to seek relief from the United States Supreme Court. The motion for stay pending appeal is denied, but the temporary stay currently in place will remain in effect until Monday, July 21, 2014, at 8:00 a.m., MDT.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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Appellate Case: 14-4060 Document: 01019277937 Date Filed: 07/11/2014 Page: 3
No. 14-4060, Jonell Evans et al. v. State of Utah, et al. KELLY, Circuit Judge, concurring in part and dissenting in part.
I concur with this court’s decision to leave the temporary stay in place so that the State Defendants (“State”) may seek a stay from the Supreme Court. I dissent from this court’s decision to now deny a stay pending appeal. The district court stayed its preliminary injunction order for 21 days to allow the State to seek a stay from this court. Evans v. Utah, No. 2:14CV55DAK, 2014 WL 2048343, at *20 (D. Utah May 19, 2014). We then issued a temporary stay on June 5 until further order of our court not only to allow briefing, but also because the court had yet to issue an opinion in two pending same-gender marriage cases.
Though the briefing has been completed, the only new federal development in this case is that a divided panel issued an opinion in Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014), and stayed its ruling. Whatever one’s view of the merits, the district court’s preliminary injunction in this case (as both the district court and this court apparently recognized) should be stayed to allow for an orderly resolution of this controversy and one based upon the rule of law. Denying a stay pending appeal in this case complements the chaos begun by the district court in Kitchen when it faulted the State for not anticipating its ruling and seeking a preemptive stay. See PlaintiffsAppellees’ Opposition to State Defendants-Appellants’ Emergency Motions for Stay Pending Appeal and Temporary Stay Pending Resolution of Motion to Stay Ex. B at 6, Kitchen, No. 13-4178, 2014 WL 2868044. Ultimately, the Supreme Court granted a stay, but not before the State was compelled to issue marriage licenses to hundreds of same-

Appellate Case: 14-4060 Document: 01019277937 Date Filed: 07/11/2014 Page: 4
gender couples from December 23, 2013 to January 6, 2014. See Herbert v. Kitchen, 134 S. Ct. 893 (2014).
To obtain a stay, the State must establish (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay or 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. 10th Cir. R. 8.1; F.T.C. v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003) (per curiam). Where the three “harm” factors tip in favor of the moving party, the “probability of success” requirement is somewhat relaxed. Mainstream Mktg., 345 F.3d at 852. “Under those circumstances, probability of success is demonstrated when the petitioner seeking the stay has raised ‘questions going to the merits so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.’” Id. at 852-53 (quoting Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246-47 (10th Cir. 2001)). In my view, the State has made the required showing.
As to the merits, the district court concluded that the Plaintiffs have a vested interest in their state-law marriages regardless of the outcome of Kitchen. It concluded that invalidation of such marriages would constitute an invalid retroactive application of Utah’s contrary provisions concerning same-gender marriage. As the State reminds us, however, Plaintiffs’ right to marry was created by a district court decree in Kitchen and that decree remains stayed. The judgment is non-final. See McCullough v. Virginia, 172 U.S. 102, 123–24 (1898); Axel Johnson Inc. v. Arthur Andersen & Co., 6 F.3d 78, 84 (2d
2

Appellate Case: 14-4060 Document: 01019277937 Date Filed: 07/11/2014 Page: 5
Cir. 1993); Johnson v. Cigna, 14 F.3d 486, 490–91 (10th Cir. 1993). Insofar as retroactivity, the Utah provisions barring same-gender marriage and its recognition predate the district court’s stayed injunction in Kitchen. The rule contended for by the Plaintiffs—that a federal district court may change the law regardless of appellate review and the State is stuck with the result in perpetuity—simply cannot be the law. It would not only create chaos, but also undermine due process and fairness. As such, the State has shown a likelihood of success on the merits, or at least raised substantial questions “deserving of more deliberate investigation.” Mainstream Mktg., 345 F.3d at 853.
The State will be irreparably harmed without a stay. In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force. It is disingenuous to contend that the State will suffer no harm if the matter is not stayed; undoing what is about to be done will be labyrinthine and has the very real possibility to moot important issues that deserve serious consideration.
Moreover, granting a stay would not harm Plaintiffs because a stay would not ultimately decide or dispose of their claims. Though the Plaintiffs have important interests at stake, those interests may still be vindicated while appellate review occurs, and Plaintiffs are free to live their lives as they will. A stay would simply maintain the status quo until this case—and the broader issue to ultimately be resolved in Kitchen—comes to a resolution via the normal legal process, including that currently unfolding in the Utah courts.
Finally, there is a great risk of harm to the public interest absent a stay. As the 3

Appellate Case: 14-4060 Document: 01019277937 Date Filed: 07/11/2014 Page: 6 State points out, “final, complete review of the legal issues” will benefit all the people of Utah. State Defendants-Appellants’ Reply in Support of Motions for Stay Pending Appeal at 5. Declining a stay here may well moot the novel issues involved, as well as those pending in the state courts. The State and its citizens, and respect for the law, are better served by obtaining complete, final judicial resolution of these issues.
4

 
 Case 2:14-cv-00055-DAK Document 65 Filed 11/24/14 Page 1 of 4

Erik Strindberg (Bar No. 4154) Lauren I. Scholnick (Bar No. 7776) Kathryn Harstad (Bar No. 11012) STRINDBERG & SCHOLNICK, LLC 675 East 2100 South, Ste. 350 Salt Lake City, UT 84106 Telephone: (801) 359-4169 Facsimile: (801) 359-4313 erik@utahjobjustice.com lauren@utahjobjustice.com kass@utahjobjustice.com
Attorneys for Plaintiffs

John Mejia (Bar No. 13965) Leah M. Farrell (Bar No. 13696) ACLU of Utah 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: jmejia@acluutah.org lfarrell@acluutah.org
Joshua A. Block* ACLU LGBT Project 125 Broad Street, Floor 18 New York, New York, 10004 Telephone: (212) 549-2593 Facsimile: (212) 549-2650 jblock@aclu.org
*Admitted Pro hac vice

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

JONELL EVANS, STACIA IRELAND, MARINA GOMBERG, ELENOR HEYBORNE, MATTHEW BARRAZA, TONY MILNER, DONALD JOHNSON, and KARL FRITZ SCHULTZ,
Plaintiffs,
vs.
STATE OF UTAH, GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity,
Defendants.

ORDER AND PERMANENT INJUNCTION
Case No. 2:14-cv-55DAK Judge: Dale A. Kimball

Case 2:14-cv-00055-DAK Document 65 Filed 11/24/14 Page 2 of 4
Based on the Stipulation and Joint Motion submitted by the parties to convert the preliminary injunction entered May 19, 2014, to a permanent injunction, and good cause appearing thereon,
IT IS HEREBY ORDERED: 1. On May 19, 2914 this Court issued a Preliminary Injunction against the Defendants
which prohibited the Defendants from applying Utah’s marriage bans retroactively to the same–sex marriages that were entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014, and ordered that Defendants State of Utah, Governor Gary Herbert and Attorney General Sean Reyes shall immediately recognize the marriages by same-sex couples entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014, and afford these same-sex marriages all the protections, benefits, and responsibilities given to all marriages under Utah Law. (Dkt. #45). 2. It is now the Order and Judgment of this Court that the preliminary injunction entered on May 19, 2014, (Dkt. #45) is a permanent injunction. 3. Defendants are hereby ordered to pay Plaintiffs the sum of Ninety-five thousand dollars ($95,000.00) in full settlement of Plaintiffs’ motions for fees and costs filed with this Court and with the Tenth Circuit Court of Appeals. Upon payment of this sum, Plaintiff’s Motion for Fees and Costs filed with this Court (Dkt. #63) will be rendered moot. Plaintiffs are directed to withdraw their Motion for Fees and Costs filed with the Tenth Circuit Court of Appeals.
2

Case 2:14-cv-00055-DAK Document 65 Filed 11/24/14 Page 3 of 4 4. The granting of the Permanent Injunction and the payment of attorneys’ fees and costs is
hereby ordered, and resolves all claims raised in this case. DATED this 24th day of November, 2014. BY THE COURT: ___________________________________ Honorable Judge Dale A. Kimball, United States District Judge
3

Case 2:14-cv-00055-DAK Document 65 Filed 11/24/14 Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that the foregoing pleading was served upon the following via the CM/ECF

electronic delivery system.

PARKER DOUGLAS JONI J. JONES KYLE K. KAISER Office of the Utah Attorney General 160 East 300 South Salt Lake City, UT 84114 jonijones@utah.gov kkaiser@utah.gov

/s/ Erik Strindberg

B:\CurrentClientsUT\Marriage Equality\Pleadings\Stipulated Motion Permanent Injunction 11_18-2014.docx

4

 
 Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 1 of 11
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:14−cv−00055−DAK

CLOSED

Evans et al v. State of Utah et al Assigned to: Judge Dale A. Kimball Case in other court: Tenth, 14−04060
3rd District, SL County, 140400673 Cause: 28:1441 Notice of Removal− Civil Rights Act
Plaintiff

Date Filed: 01/28/2014 Date Terminated: 11/24/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Jonell Evans

represented by Erik Strindberg STRINDBERG & SCHOLNICK LLC PLAZA 721 675 E 2100 S STE 350 SALT LAKE CITY, UT 84106 (801)359−4169 Email: erik@utahjobjustice.com 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

John M. Mejia ACLU OF UTAH 355 N 300 W STE 1 SALT LAKE CITY, UT 84103 (801)521−9862 Email: jmejia@acluutah.org ATTORNEY TO BE NOTICED

Kathryn K. Harstad STRINDBERG & SCHOLNICK LLC PLAZA 721 675 E 2100 S STE 350 SALT LAKE CITY, UT 84106 (801)359−4169 Email: kass@utahjobjustice.com ATTORNEY TO BE NOTICED

Lauren I. Scholnick STRINDBERG & SCHOLNICK LLC PLAZA 721 675 E 2100 S STE 350 SALT LAKE CITY, UT 84106 (801)359−4169 Email: lauren@utahjobjustice.com ATTORNEY TO BE NOTICED

Leah M. Farrell ACLU OF UTAH 355 N 300 W STE 1 SALT LAKE CITY, UT 84103

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 2 of 11

(801)521−9862 Email: lfarrell@acluutah.org ATTORNEY TO BE NOTICED

Rachel E. Otto CITY OF SOUTH JORDAN 8000 S REDWOOD RD WEST JORDAN, UT 84088 (801)253−5203 Email: rachelo@wjordan.com

Plaintiff Stacia Ireland

represented by Erik Strindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Kathryn K. Harstad (See above for address) ATTORNEY TO BE NOTICED

Lauren I. Scholnick (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Rachel E. Otto (See above for address)

Plaintiff Marina Gomberg

represented by Erik Strindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Kathryn K. Harstad (See above for address) ATTORNEY TO BE NOTICED

Lauren I. Scholnick (See above for address)

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 3 of 11

ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Rachel E. Otto (See above for address)

Plaintiff Elenor Heyborne

represented by Erik Strindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Kathryn K. Harstad (See above for address) ATTORNEY TO BE NOTICED

Lauren I. Scholnick (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Rachel E. Otto (See above for address)

Plaintiff Matthew Barraza

represented by Erik Strindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Kathryn K. Harstad (See above for address) ATTORNEY TO BE NOTICED

Lauren I. Scholnick (See above for address) ATTORNEY TO BE NOTICED

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 4 of 11

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Rachel E. Otto (See above for address)

Plaintiff Tony Milner

represented by Erik Strindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Kathryn K. Harstad (See above for address) ATTORNEY TO BE NOTICED

Lauren I. Scholnick (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Rachel E. Otto (See above for address)

Plaintiff Donald Johnson

represented by Erik Strindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Kathryn K. Harstad (See above for address) ATTORNEY TO BE NOTICED

Lauren I. Scholnick (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address)

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 5 of 11

ATTORNEY TO BE NOTICED

Rachel E. Otto (See above for address)

Plaintiff Carl Fritz Schultz

represented by Erik Strindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Block (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Kathryn K. Harstad (See above for address) ATTORNEY TO BE NOTICED

Lauren I. Scholnick (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Rachel E. Otto (See above for address)

V. Defendant State of Utah

represented by Joni J. Jones 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: jonijones@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kyle J. Kaiser 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: kkaiser@agutah.gov ATTORNEY TO BE NOTICED
Parker Douglas

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 6 of 11

UTAH ATTORNEY GENERAL'S OFFICE 350 N STATE ST STE 230 PO BOX 142320 SALT LAKE CITY, UT 84114−2320 (801)538−9600 ATTORNEY TO BE NOTICED

Defendant
Gary Herbert Governor, in his official capacity

represented by Joni J. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle J. Kaiser (See above for address) ATTORNEY TO BE NOTICED

Parker Douglas (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sean Reyes Attorney, in his official capacity

represented by Joni J. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle J. Kaiser (See above for address) ATTORNEY TO BE NOTICED

Parker Douglas (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/28/2014 01/28/2014 01/29/2014 01/29/2014 01/31/2014

# Docket Text
1 NOTICE OF REMOVAL from 3rd District, SL County, case number 140400673. ( Filing fee $ 400 receipt number 4681060543) (Electronic document provided on disc.), filed by Sean Reyes, State of Utah, Gary Herbert. (Attachments: # 1 Civil Cover Sheet 1) Assigned to Judge Dale A. Kimball (amw) (Entered: 01/29/2014)
2 CERTIFICATE OF SERVICE by Gary Herbert, Sean Reyes, State of Utah re 1 Notice of Removal, Electronic document provided on disc. Original file stamped and signed document permanently retained. (amw) Modified by adding electronic document information on 1/29/2014 (amw). (Entered: 01/29/2014)
3 NOTICE OF REQUIREMENTS for appearance phv mailed to attorney Joshua A. Block, for Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz (amw) (Entered: 01/29/2014)
4 NOTICE OF ADR, e−mailed or mailed to Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz, Defendants Gary Herbert, Sean Reyes, State of Utah. (amw) (Entered: 01/29/2014)
5 MOTION for Admission Pro Hac Vice of Joshua A. Block , Registration fee $ 15, receipt number 1088−1989968, filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Exhibit A − Application for Admission, # 2 Text of Proposed Order)(Farrell, Leah) (Entered: 01/31/2014)

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 7 of 11

02/03/2014
02/04/2014 02/04/2014
02/04/2014 02/04/2014 02/05/2014 02/05/2014 02/06/2014
02/06/2014 02/06/2014 02/10/2014 02/11/2014

6 ORDER granting 5 Motion for Admission Pro Hac Vice of Joshua A. Block for Matthew Barraza,Joshua A. Block for Jonell Evans,Joshua A. Block for Marina Gomberg,Joshua A. Block for Elenor Heyborne,Joshua A. Block for Stacia Ireland,Joshua A. Block for Donald Johnson,Joshua A. Block for Tony Milner,Joshua A. Block for Carl Fritz Schultz. 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 Dale A. Kimball on 2/3/14. (jlw) (Entered: 02/03/2014)
7 NOTICE of Appearance by Parker Douglas on behalf of Gary Herbert, Sean Reyes, State of Utah (Douglas, Parker) (Entered: 02/04/2014)
8 Plaintiff's MOTION for Preliminary Injunction and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Exhibit A −− Declaration of Gomberg, # 2 Exhibit B −− Dec of Heyborne, # 3 Exhibit C −− Dec of Barraza, # 4 Exhibit D −− Dec of Milner, # 5 Exhibit E −− Dec of Evans, # 6 Exhibit F −− Dec of Ireland, # 7 Exhibit G −− Dec of Schultz, # 8 Exhibit H −− Dec of Johnson, # 9 Exhibit I −− UT Voter Info Amd 3, # 10 Exhibit J −− App to Stay SCOTUS)(Scholnick, Lauren) (Entered: 02/04/2014)
9 Plaintiff's MOTION to Expedite Preliminary Injunction Hearing and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order)(Scholnick, Lauren) (Entered: 02/04/2014)
10 Plaintiff's MOTION for Certification of Issue to State Supreme Court under and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Harstad, Kathryn) (Entered: 02/04/2014)
11 RESPONSE to Motion re 9 Plaintiff's MOTION to Expedite Preliminary Injunction Hearing and Memorandum in Support filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Jones, Joni) (Entered: 02/05/2014)
12 MOTION to Consolidate Cases filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Attachments: # 1 Exhibit Memo from Governor's office, # 2 Exhibit Supreme Court Order, # 3 Exhibit Memo fromD. Miller to Governor's Cabinet, # 4 Exhibit Redacted Caption in Doe v. State)(Jones, Joni) (Entered: 02/05/2014)
13 ORDER granting 9 Motion to Expedite and Setting Briefing Schedule and Hearing on 8 Plaintiff's MOTION for Preliminary Injunction. IT IS HEREBY ORDERED THAT Defendants shall be allowed to brief PlaintiffsMotion for Preliminary Injunction according to the time allowed under DUCivR 7−1(b)(3) because of the complex and novel legal issues involved. Defendants memorandum in opposition to Plaintiffs Motion for Preliminary Injunction will therefore be due on February 21, 2014. However, to expedite briefing on the motion, the court concludes that the deadline for Plaintiffs reply memorandum can be shortened to ten days rather than fourteen. Therefore, Plaintiffs reply memorandum will be due on March 6, 2014. Signed by Judge Dale A. Kimball on 2/6/14. (jlw) (Entered: 02/06/2014)
14 NOTICE OF HEARING ON MOTION re: 8 Plaintiff's MOTION for Preliminary Injunction and Memorandum in Support : (Notice generated by Clerk) Motion Hearing set for 3/12/2014 10:00 AM in Room 420 before Judge Dale A. Kimball. (jlw) (Entered: 02/06/2014)
15 ORDER Setting Hearing on Motion 10 Plaintiff's MOTION for Certification of Issue to State Supreme Court under and Memorandum in Support : Motion Hearing set for 3/12/2014 10:00 AM in Room 420 before Judge Dale A. Kimball. Signed by Judge Dale A. Kimball on 2/6/14. (jlw) (Entered: 02/07/2014)
16 MOTION for Extension of Time to File Answer to Plaintiffs' Complaint filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Attachments: # 1 Text of Proposed Order)(Jones, Joni) (Entered: 02/10/2014)
17 WITHDRAWAL OF MOTION by Defendants Gary Herbert, Sean Reyes, State of Utah re 12 MOTION to Consolidate Cases filed by State of Utah, Gary Herbert, Sean Reyes . (Attachments: # 1 Text of Proposed Order)(Jones, Joni) Modified on

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 8 of 11

02/11/2014 02/11/2014 02/21/2014 02/21/2014 02/26/2014 02/26/2014 02/28/2014 03/03/2014 03/04/2014
03/06/2014 03/12/2014
03/20/2014 03/21/2014

2/11/2014 by changing event to motion (jlw). (Entered: 02/11/2014)
18 ORDER granting 16 Motion for Extension of Time to Answer re 1 Complaint. Answer deadline updated for Gary Herbert answer due 2/26/2014; Sean Reyes answer due 2/26/2014; State of Utah answer due 2/26/2014. Signed by Judge Dale A. Kimball on 2/11/14. (jlw) (Entered: 02/11/2014)
19 ORDER granting 17 Motion to Withdraw 12 MOTION to Consolidate Cases . Signed by Judge Dale A. Kimball on 2/11/14. (jlw) (Entered: 02/11/2014)
20 Defendant's MEMORANDUM in Opposition re 8 Plaintiff's MOTION for Preliminary Injunction and Memorandum in Support filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Attachments: # 1 Exhibit 1− Brief of Appellants Gary R. Herbert and Sean D. Reyes, Kitchen v. Herbert, Case No. 13−4178)(Jones, Joni) (Entered: 02/21/2014)
21 Defendant's MEMORANDUM in Opposition re 10 Plaintiff's MOTION for Certification of Issue to State Supreme Court under and Memorandum in Support filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Kaiser, Kyle) (Entered: 02/21/2014)
22 MOTION to Dismiss and Memorandum in Support filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Attachments: # 1 Exhibit A− Evans, et al., v. State of UT, 3rd Dist. Ct. Docket)(Kaiser, Kyle) (Entered: 02/26/2014)
23 State Defendants' ANSWER to Complaint filed by Gary Herbert, Sean Reyes, State of Utah.(Kaiser, Kyle) (Entered: 02/26/2014)
24 MOTION for Leave to File Excess Pages and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order)(Scholnick, Lauren) (Entered: 02/28/2014)
25 ORDER granting 24 Motion for Leave to File Excess Pages. Signed by Judge Dale A. Kimball on 3/3/14. (jlw) (Entered: 03/03/2014)
26 REPLY to Response to Motion re 8 Plaintiff's MOTION for Preliminary Injunction and Memorandum in Support , 10 Plaintiff's MOTION for Certification of Issue to State Supreme Court under and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Exhibit A −− Utah Application for Stay)(Scholnick, Lauren) (Entered: 03/04/2014)
27 NOTICE FROM THE COURT: the Motion hearing set for 3/12/14 at 10:00 AM will be held in Courtroom 246. (kmj) (Entered: 03/06/2014)
28 Minute Entry for proceedings held before Judge Dale A. Kimball: Motion Hearing held on 3/12/2014 re 8 Plaintiff's MOTION for Preliminary Injunction filed by Stacia Ireland, Marina Gomberg, Jonell Evans, Elenor Heyborne, Tony Milner, Carl Fritz Schultz, Matthew Barraza, Donald Johnson and 10 Plaintiff's MOTION for Certification of Issue to State Supreme Court filed by Stacia Ireland, Marina Gomberg, Jonell Evans, Elenor Heyborne, Carl Fritz Schultz, Tony Milner, Donald Johnson, Matthew Barraza. The Court heard the arguments of counsel and took the motions under advisement. Attorney for Plaintiff: Erik Strindberg, Joshua Block, John Mejia. Attorney for Defendant: Joni Jones, Kyle Kaiser, Parker Douglas. Court Reporter: Patti Walker. (kmj) (Entered: 03/12/2014)
29 Stipulated MOTION for Extension of Time to File Response/Reply as to 22 MOTION to Dismiss and Memorandum in Support and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order)(Strindberg, Erik) (Entered: 03/20/2014)
30 ORDER granting 29 Motion for Extension of Time to File Response/Reply re 22 MOTION to Dismiss and Memorandum in Support Responses due by 4/25/2014. Signed by Judge Dale A. Kimball on 3/21/14. (jlw) (Entered: 03/21/2014)

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 9 of 11

04/10/2014 04/10/2014 04/16/2014
04/16/2014 04/17/2014 04/18/2014 04/21/2014
04/25/2014 04/30/2014 04/30/2014 05/13/2014 05/13/2014

31 First MOTION for Leave to File Supplement filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Supplement, # 2 Exhibit)(Block, Joshua) (Entered: 04/10/2014)
32 First MOTION for Leave to File Amended Supplement filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Supplement, # 2 Exhibit)(Block, Joshua) (Entered: 04/10/2014)
33 RESPONSE to Motion re 32 First MOTION for Leave to File Amended Supplement filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Attachments: # 1 Exhibit 1− Redacted Transcript of Hearing on Motion for Temporary Restraining Order, # 2 Exhibit 2− Redacted Complaint (Doe v. State, Case No. 140900542), # 3 Exhibit 3− Redacted Motion for Temporary Restraining Order, # 4 Exhibit 4− Governor Herbert's Letter to Cabinet)(Kaiser, Kyle) (Entered: 04/16/2014)
34 MOTION for Certification of Issue to State Supreme Court under Utah Rule of Appellate Procedure 41(a) and Memorandum in Support filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Attachments: # 1 Exhibit 1− Docket Sheets, # 2 Exhibit 2− Petition for Extraordinary Relief & Memo in Support)(Kaiser, Kyle) (Entered: 04/16/2014)
35 RESPONSE to Motion re 34 MOTION for Certification of Issue to State Supreme Court under Utah Rule of Appellate Procedure 41(a) and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Scholnick, Lauren) (Entered: 04/17/2014)
36 Stipulated MOTION for Extension of Time to File Response/Reply as to 22 MOTION to Dismiss and Memorandum in Support and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order)(Farrell, Leah) (Entered: 04/18/2014)
37 ORDER granting 36 Motion for Extension of Time to File Response/Reply. IT IS HEREBY ORDERED, that Plaintiffs opposition memorandum (or other response) to the Defendants Motion for Partial Dismissal (Dkt. #22) will be due 20 days following an Order by the Court on Plaintiffs Motion for Preliminary Injunction (Dkt. #8) and Motion to Certify Question of State Law to the Utah Supreme Court (Dkt. #10). Signed by Judge Dale A. Kimball on 4/21/14. (jlw) (Entered: 04/21/2014)
38 REPLY to Response to Motion re 34 MOTION for Certification of Issue to State Supreme Court under Utah Rule of Appellate Procedure 41(a) and Memorandum in Support filed by Defendants Gary Herbert, Sean Reyes, State of Utah. (Attachments: # 1 Text of Proposed Order Proposed Order on Certification Issue)(Kaiser, Kyle) (Entered: 04/25/2014)
39 REPLY to Response to Motion re 32 First MOTION for Leave to File Amended Supplement filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Mejia, John) (Entered: 04/30/2014)
40 BRIEF re 38 Reply Memorandum/Reply to Response to Motion, Objection to Proposed Order, filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Mejia, John) (Entered: 04/30/2014)
41 ORDER granting 32 Motion for Leave to File Supplement to Motion for Preliminary Injunction. Signed by Judge Dale A. Kimball on 5/13/14. (jlw) (Entered: 05/13/2014)
42 Supplemental BRIEF re 8 Plaintiff's MOTION for Preliminary Injunction and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Exhibit A−Declaration of Shane Marx)(Farrell, Leah) (Entered: 05/13/2014)

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 10 of 11

05/17/2014 05/19/2014 05/19/2014
05/27/2014 05/28/2014 05/30/2014 06/02/2014 06/04/2014 06/05/2014 06/06/2014 07/11/2014 07/18/2014 08/07/2014

43 MOTION Leave to File Second Supplement re 8 Plaintiff's MOTION for Preliminary Injunction and Memorandum in Support and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Exhibit A)(Mejia, John) (Entered: 05/17/2014)
44 DOCKET TEXT ORDER granting 43 Motion to File Second Supplement. The court takes judicial notice of the requested supplemental information. No additional briefing is necessary. Signed by Judge Dale A. Kimball on 5−19−14. No attached document. (sih) (Entered: 05/19/2014)
45 MEMORANDUM DECISION AND ORDER denying 34 Motion for Certification of Issue to State Supreme Court; granting 8 Motion for Preliminary Injunction; denying 10 Motion for Certification of Issue to State Supreme Court. The following Preliminary Injunction Order is temporarily stayed for twenty−one (21) days to allow the State to seek an emergency stay pending appeal from the Tenth Circuit. PRELIMINARY INJUNCTION ORDER: The court issues the following Preliminary Injunction against Defendants: Defendants State of Utah, Governor Gary Herbert and Attorney General Sean Reyes are prohibited from applying Utah's marriage bans retroactively to the same−sex marriages that were entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014. Accordingly, Defendants State of Utah, Governor Gary Herbert and Attorney General Sean Reyes shall immediately recognize the marriages by same−sex couples entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014, and afford these same−sex marriages all the protections, benefits, and responsibilities given to all marriages under Utah law. Signed by Judge Dale A. Kimball on 5/19/14. (jlw) (Entered: 05/19/2014)
46 Third MOTION for Extension of Time to File Response/Reply as to 22 MOTION to Dismiss and Memorandum in Support and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order)(Strindberg, Erik) (Entered: 05/27/2014)
47 ORDER granting 46 Motion for Extension of Time to File Response/Reply. Signed by Judge Dale A. Kimball on 5/28/14. (jlw) (Entered: 05/28/2014)
48 Stipulated MOTION for Extension of Time Attorney's Fees Petition and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order)(Strindberg, Erik) (Entered: 05/30/2014)
49 ORDER re 48 Stipulated MOTION for Extension of Time Attorney's Fees Petition and Memorandum in Support filed by Stacia Ireland, Marina Gomberg, Jonell Evans, Elenor Heyborne, Tony Milner, Carl Fritz Schultz, Matthew Barraza, Donald Johnson. Signed by Judge Dale A. Kimball on 6/2/14. (jlw) (Entered: 06/02/2014)
50 NOTICE OF INTERLOCUTORY APPEAL as to 45 Order on Motion for Certification of Issue to State Supreme Court, Order on Motion for Preliminary Injunction,, Memorandum Decision,,,,,,,,,,,,,,,,,,,, filed by Gary Herbert, Sean Reyes, State of Utah. Appeals to the USCA for the 10th Circuit. Filing fee $ 505, receipt number 1088−2062847. (Jones, Joni) (Entered: 06/04/2014)
51 USCA Case Number Case Appealed to Tenth Case Number 14−4060 for 50 Notice of Appeal − Interlocutory, filed by State of Utah, Gary Herbert, Sean Reyes. (jmr) (Entered: 06/05/2014)
52 ORDER of USCA 10th Circuit as to 50 Notice of Appeal − Interlocutory, filed by State of Utah, Gary Herbert, Sean Reyes (jlw) (Entered: 06/06/2014)
53 ORDER from USCA for the 10th Circuit (jds) (Entered: 07/15/2014)
54 ORDER of USCA Supreme Court Circuit as to 50 Notice of Appeal − Interlocutory, filed by State of Utah, Gary Herbert, Sean Reyes. Supreme Court order granting stay of district court preliminary injunction filed. (jmr) (Entered: 07/18/2014)
55 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Plaintiffs' Motion for Preliminary Injunction and Motion for Certification to the Utah Supreme Court held

Case: 2:14-cv-55 As of: 11/05/2017 11:32 PM MST 11 of 11

08/12/2014 10/08/2014 10/20/2014 10/21/2014 10/28/2014 10/29/2014 11/07/2014
11/24/2014 11/24/2014 11/24/2014

on March 12, 2014 before Judge DALE A. KIMBALL, re 50 Notice of Appeal − Interlocutory,. Court Reporter/Transcriber Patti Walker, CSR, RPR, CP, Telephone number 801−364−5440.
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 8/28/2014. Redacted Transcript Deadline set for 9/8/2014. Release of Transcript Restriction set for 11/5/2014. (jds) Modified on 11/5/2014 by removing restricted text(las). (Entered: 08/07/2014)
57 Please be advised the Record is complete for purposes of appeal for USCA case number 14−4060 re 50 Notice of Appeal − Interlocutory,. (jmr) (Entered: 08/12/2014)
58 MANDATE of USCA as to 50 Notice of Appeal − Interlocutory, filed by State of Utah, Gary Herbert, Sean Reyes According to the USCA the Order of the USDC for the Dist of UT is Dismissed. (Attachments: # 1 Exhibit A − Mandate Cover Letter)(jds) (Entered: 10/10/2014)
59 Stipulated MOTION for Extension of Time Fee Petition and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order)(Strindberg, Erik) (Entered: 10/20/2014)
60 ORDER granting 59 Motion for Extension of Time. Plaintiffs Fee and Costs Petition will be due on or before October 29, 2014. Signed by Judge Dale A. Kimball on 10/21/14. (jds) (Entered: 10/21/2014)
61 Plaintiff's MOTION for Extension of Time Motion for Attorneys Fees and Costs Petition filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order)(Strindberg, Erik) (Entered: 10/28/2014)
62 ORDER granting 61 Motion for Extension of Time Motion for Attorneys Fees and Costs Petition. Plaintiffs Fee and Costs Petition will be due on or before November 10, 2014. Signed by Judge Dale A. Kimball on 10/29/2014. (jds) (Entered: 10/29/2014)
63 MOTION for Attorney Fees and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Exhibit A Decl. of Erik Strindberg, # 2 Exhibit B Decl. of John Mejia, # 3 Exhibit C Decl. of Joshua Block, # 4 Exhibit D Decl. of Brett Tolman, # 5 Exhibit E Decl. of Deborah Ferguson)(Scholnick, Lauren) (Entered: 11/07/2014)
64 Stipulated MOTION for Permanent Injunction and Memorandum in Support filed by Plaintiffs Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson, Tony Milner, Carl Fritz Schultz. (Attachments: # 1 Text of Proposed Order and Permanent Injunction)(Strindberg, Erik) (Entered: 11/24/2014)
65 ORDER finding as moot 63 Motion for Attorney Fees; granting 64 Motion for Permanent Injunction. Signed by Judge Dale A. Kimball on 11/24/2014. (jds) (Entered: 11/24/2014)
Civil Case Terminated per 65 . (jds) (Entered: 11/24/2014)

 
 General Docket Tenth Circuit Court of Appeals

Court of Appeals Docket #: 14-4060 Nature of Suit: 3440 Other Civil Rights Evans, et al v. State of Utah, et al Appeal From: United States District Court for the District of Utah Salt Lake City Fee Status: Fee Paid

Docketed: 06/05/2014 Termed: 10/08/2014

Case Type Information: 1) civil 2) private 3) -

Originating Court Information:

District: 1088-2 : 2:14-CV-00055-DAK

Court Reporter: Raymond Fenlon, -

Court Reporter: Patti Walker, -

Trial Judge: Dale A. Kimball, -, U.S. District Judge

Date Filed: 01/28/2014

Date NOA Filed:

Date Rec'd COA:

06/04/2014

06/05/2014

Prior Cases: None

Current Cases: None
Panel Assignment: Not available

JONELL EVANS Plaintiff - Appellee

Joshua A. Block Email: jblock@aclu.org [NTC Retained] American Civil Liberties Union Foundation Women's Rights Project 125 Broad Street 18th Floor New York, NY 10004
Leah Farrell Email: lfarrell@acluutah.org

STACIA IRELAND Plaintiff - Appellee

[NTC Retained] ACLU of Utah Firm: 801/521-9862 355 North 300 West Salt Lake City, UT 84103-0000
Kathryn Harstad Email: kass@utahjobjustice.com [NTC Retained] Strindberg & Scholnick Firm: 801/359-4169 675 East 2100 South, Suite 350 Salt Lake City, UT 84106
John M. Mejia Email: jmejia@acluutah.org [NTC Retained] ACLU of Utah Firm: 801/521-9862 355 North 300 West Salt Lake City, UT 84103-0000
Erik Strindberg Direct: 801-359-4169 Email: erik@utahjobjustice.com [NTC Retained] Strindberg & Scholnick Firm: 801/359-4169 675 East 2100 South, Suite 350 Salt Lake City, UT 84106
Joshua A. Block [NTC Retained] (see above)
Leah Farrell [NTC Retained] (see above)
Kathryn Harstad [NTC Retained] (see above)
John M. Mejia

MARINA GOMBERG Plaintiff - Appellee
ELENOR HEYBORNE Plaintiff - Appellee

[NTC Retained] (see above)
Erik Strindberg Direct: 801-359-4169 [NTC Retained] (see above)
Joshua A. Block [NTC Retained] (see above)
Leah Farrell [NTC Retained] (see above)
Kathryn Harstad [NTC Retained] (see above)
John M. Mejia [NTC Retained] (see above)
Erik Strindberg Direct: 801-359-4169 [NTC Retained] (see above)
Joshua A. Block [NTC Retained] (see above)
Leah Farrell [NTC Retained] (see above)
Kathryn Harstad [NTC Retained] (see above)
John M. Mejia [NTC Retained]

MATTHEW BARRAZA Plaintiff - Appellee
DONALD JOHNSON Plaintiff - Appellee

(see above)
Erik Strindberg Direct: 801-359-4169 [NTC Retained] (see above)
Joshua A. Block [NTC Retained] (see above)
Leah Farrell [NTC Retained] (see above)
Kathryn Harstad [NTC Retained] (see above)
John M. Mejia [NTC Retained] (see above)
Erik Strindberg Direct: 801-359-4169 [NTC Retained] (see above)
Joshua A. Block [NTC Retained] (see above)
Leah Farrell [NTC Retained] (see above)
Kathryn Harstad [NTC Retained] (see above)
John M. Mejia [NTC Retained] (see above)

CARL FRITZ SHULTZ Plaintiff - Appellee
TONY MILNER Plaintiff - Appellee

Erik Strindberg Direct: 801-359-4169 [NTC Retained] (see above)
Joshua A. Block [NTC Retained] (see above)
Leah Farrell [NTC Retained] (see above)
Kathryn Harstad [NTC Retained] (see above)
John M. Mejia [NTC Retained] (see above)
Erik Strindberg Direct: 801-359-4169 [NTC Retained] (see above)
Leah Farrell [NTC Retained] (see above)
Kathryn Harstad [NTC Retained] (see above)
John M. Mejia [NTC Retained] (see above)
Lauren I. Scholnick Direct: 801-359-4169 Email: lauren@utahjobjustice.com [NTC Retained]

v.
STATE OF UTAH Defendant - Appellant

Strindberg & Scholnick Firm: 801/359-4169 675 East 2100 South, Suite 350 Salt Lake City, UT 84106
Erik Strindberg Direct: 801-359-4169 [NTC Retained] (see above)
Parker Douglas Email: pdouglas@agutah.gov [NTC Government] Office of the Attorney General for the State of Utah Criminal Appeals Division Firm: 801-366-0100 160 East 300 South, 6th Floor P.O. Box 140854 Salt Lake City, UT 84114
Joni Jean Jones Direct: 801-366-0384 Email: jonijones@agutah.gov [NTC Government] Office of the Attorney General for the State of Utah Criminal Appeals Division Firm: 801-366-0100 160 East 300 South, 6th Floor P.O. Box 140854 Salt Lake City, UT 84114
Kyle Jason Kaiser Direct: 801-366-0100 Email: kkaiser@agutah.gov [NTC Government] Office of the Attorney General for the State of Utah Criminal Appeals Division Firm: 801-366-0100 160 East 300 South, 6th Floor

P.O. Box 140854 Salt Lake City, UT 84114

GARY HERBERT, in his official capacity as Parker Douglas

Governor of Utah

[NTC Government]

Defendant - Appellant

(see above)

Joni Jean Jones Direct: 801-366-0384 [NTC Government] (see above)

Kyle Jason Kaiser Direct: 801-366-0100 [NTC Government] (see above)

SEAN REYES, in his official capacity as Attorney General of Utah
Defendant - Appellant

Parker Douglas [NTC Government] (see above)

Joni Jean Jones Direct: 801-366-0384 [NTC Government] (see above)

Kyle Jason Kaiser Direct: 801-366-0100 [NTC Government] (see above)

JONELL EVANS; STACIA IRELAND; MARINA GOMBERG; ELENOR HEYBORNE; MATTHEW BARRAZA; TONY MILNER; DONALD JOHNSON; KARL FRITZ SHULTZ,

Plaintiffs - Appellees,

v.

STATE OF UTAH; GARY HERBERT, in his official capacity as Governor of Utah; SEAN REYES, in his official capacity as Attorney General of Utah,

Defendants - Appellants.

06/05/2014
40 pg, 327.2 KB

[10181275] Civil case docketed. Preliminary record filed. DATE RECEIVED: 06/05/2014 Docketing statement due 06/19/2014 for Gary Herbert, Sean Reyes and State of Utah. Transcript order form due 06/19/2014 for Joni J. Jones. Notice of appearance due on 06/19/2014 for Matthew Barraza, Jonell Evans, Marina Gomberg, Gary Herbert, Elenor Heyborne, Stacia Ireland, Donald Johnson, Sean Reyes, Carl Fritz Shultz and State of Utah. [14-4060] [Entered: 06/05/2014 08:44 AM]

06/05/2014

[10181287] Notice of an NDA re-sent to Kathryn Harstad. [144060] [Entered: 06/05/2014 09:05 AM]

06/05/2014
116 pg, 1.42 MB

[10181446] Motion filed by Appellants Gary Herbert, Sean Reyes and State of Utah for stay of Preliminary Injunction Pending Appeal. Served on: 06/05/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-4060] PD [Entered: 06/05/2014 11:07 AM]

06/05/2014

This entry ([10181494] Notice of appearance submitted by Erik Strindberg) has been removed from the docket and will not be filed. There is no certificate of interested parties or certificate of service. [SLS] ES [Entered: 06/05/2014 12:43 PM]

06/05/2014
1 pg, 79.77 KB

[10181653] Order filed by Clerk. A temporary stay of the district court's order is granted. Appellees shall respond to the stay motion no later than 11:59 p.m. MDT on Thursday 06/12/2014 for Matthew Barraza, Jonell Evans, Marina Gomberg, Elenor Heyborne, Stacia Ireland, Donald Johnson and Carl Fritz Shultz. Served on 06/05/2014. [14-4060] --[Edited 06/05/2014 by SLS to correct clerical error to order (no panel is assigned).] [Entered: 06/05/2014 04:42 PM]

06/06/2014
23 pg, 205 KB

[10181847] Response filed by Mr. Matthew Barraza, Jonell Evans, Ms. Marina Gomberg, Ms. Elenor Heyborne, Ms. Stacia Ireland, Mr. Donald Johnson and Mr. Carl Fritz Shultz to Appellants' Motions for Stay Pending Appeal and Temporary Stay Pending Resolution of Motion to Stay. Served on 06/06/2014. Manner of Service: US mail, email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-4060] LF [Entered: 06/06/2014 02:00 PM]

06/09/2014

[10181998] Reply filed by Gary Herbert, Sean Reyes and State of

13 pg, 106.64 KB Utah to Plaintiff-Appellees' Opposition to Motions for Stay

Pending Appeal and Temporary Stay Pending Resolution of

Motion to Stay. Served on 06/09/2014. Manner of Service: email.

This pleading complies with all required (privacy, paper copy and

virus) certifications: Yes. [14-4060] PD [Entered: 06/09/2014 09:32 AM]

06/17/2014

[10184521] Notice of appearance submitted by Leah Farrell, John Mejia for Appellees Mr. Matthew Barraza, Jonell Evans, Ms. Marina Gomberg, Ms. Elenor Heyborne, Ms. Stacia Ireland, Mr. Donald Johnson, Mr. Carl Fritz Shultz and Mr. Anthony Milner for court review. Certificate of Interested Parties: No. Served on 06/17/2014. Manner of Service: email, US mail. [14-4060] -[Edited 06/17/2014 by SLS to remove PDF file from docket entry and to add party to docket text.] LF [Entered: 06/17/2014 04:13 PM]

06/17/2014
5 pg, 102.51 KB

[10184532] Notice of appearance filed by Ms. Leah Farrell and Mr. John M. Mejia for Ms. Jonell Evans, Ms. Stacia Ireland, Ms. Marina Gomberg, Ms. Elenor Heyborne, Mr. Matthew Barraza, Mr. Donald Johnson, Mr. Carl Fritz Shultz and Mr. Tony Milner. CERT. OF INTERESTED PARTIES: n. Served on 06/17/2014. Manner of Service: email, US mail. [14-4060] [Entered: 06/17/2014 04:28 PM]

06/18/2014

[10184660] Notice of appearance submitted by Erik Strindberg, Lauren I. Scholnick, Kathryn Harstad for Appellees Mr. Matthew Barraza, Jonell Evans, Ms. Marina Gomberg, Ms. Elenor Heyborne, Ms. Stacia Ireland, Mr. Donald Johnson, Mr. Tony Milner and Mr. Carl Fritz Shultz for court review. Certificate of Interested Parties: Yes. Served on 06/18/2014. Manner of Service: email. [14-4060]--[Edited 06/18/2014 by AT to remove PDF as pleading was filed on 6/18/14.] ES [Entered: 06/18/2014 09:58 AM]

06/18/2014
4 pg, 70.05 KB

[10184691] Notice of appearance filed by Ms. Kathryn Harstad, Ms. Lauren I. Scholnick, and Mr. Erik Strindberg for Jonell Evans, Ms. Stacia Ireland, Ms. Marina Gomberg, Ms. Elenor Heyborne, Mr. Matthew Barraza, Mr. Donald Johnson, Mr. Carl Fritz Shultz, and Mr. Tony Milner. CERT. OF INTERESTED PARTIES: y. Served on 06/18/2014. Manner of Service: email. [14-4060] [Entered: 06/18/2014 10:49 AM]

06/18/2014

[10184759] Notice of appearance submitted by Joshua Block for Appellees Mr. Matthew Barraza, Jonell Evans, Ms. Marina Gomberg, Ms. Elenor Heyborne, Ms. Stacia Ireland, Mr. Donald Johnson, Mr. Tony Milner and Mr. Carl Fritz Shultz for court review. Certificate of Interested Parties: No. Served on 06/18/2014. Manner of Service: US mail. [14-4060]--[Edited 06/18/2014 by KLP to delete the attachment; entry filed.] JAB [Entered: 06/18/2014 01:02 PM]

06/18/2014
4 pg, 92.39 KB

[10184795] Notice of appearance filed by Mr. Joshua A. Block for Appellees Jonell Evans, Ms. Stacia Ireland, Ms. Marina Gomberg, Ms. Elenor Heyborne, Mr. Matthew Barraza, Mr. Donald Johnson and Mr. Carl Fritz Shultz. CERT. OF INTERESTED PARTIES: n. Served on 04/18/2014. Manner of Service: email. [14-4060] [Entered: 06/18/2014 01:57 PM]

06/19/2014
2 pg, 20.34 KB

[10184942] Admissions letter sent. Response date set to 07/21/2014 for Kathryn Harstad. [14-4060] [Entered: 06/19/2014 08:38 AM]

06/30/2014
2 pg, 22.94 KB

[10187389] Deficiency notice issued. Type of deficiency: no preliminary documents filed. Docketing statement, transcript order form and notice of appearance due on 07/10/2014 for Gary Herbert, Sean Reyes and State of Utah [14-4060] [Entered: 06/30/2014 12:34 PM]

07/01/2014

[10187628] Notice of appearance submitted by Joni J. Jones, Kyle J. Kaiser, Parker Douglas for Appellants Gary Herbert, Sean Reyes and State of Utah for court review. Certificate of Interested Parties: No. Served on 07/01/2014. Manner of Service: email. [14-4060]-[Edited 07/01/2014 by KLP to delete the attachment; entry filed.] JJJ [Entered: 07/01/2014 07:20 AM]

07/01/2014
3 pg, 132.14 KB

[10187674] Notice of appearance filed by Mr. Parker Douglas, Ms. Joni Jean Jones and Mr. Kyle J. Kaiser for State of Utah, Gary Herbert and Sean Reyes. CERT. OF INTERESTED PARTIES: n. Served on 07/01/2014. Manner of Service: email. [14-4060] [Entered: 07/01/2014 08:30 AM]

07/01/2014

[10187925] Docketing statement filed by Gary Herbert, Sean

44 pg, 289.57 KB Reyes and State of Utah. Served on 07/01/2014. Manner of

Service: email. [14-4060] JJJ [Entered: 07/01/2014 02:52 PM]

07/01/2014
2 pg, 76.05 KB

[10187929] Acknowledgment of transcript order filed by Ms. Joni Jean Jones for State of Utah, Gary Herbert and Sean Reyes. Transcript ordered: Argument on Plaintiffs' Motion for Preliminary Injunction held on March 12, 2014. Served on: 07/01/2014. Manner of Service: email. [14-4060] JJJ [Entered: 07/01/2014 02:56 PM]

07/01/2014

[10187955] Minute order filed - Transcript order form due 07/15/2014 for Patti Walker. (Text Only - No Attachment) [144060] [Entered: 07/01/2014 03:36 PM]

07/11/2014
6 pg, 61.77 KB

[10190608] Order filed by Judges Kelly, concurring in part and dissenting in part, Lucero and Holmes - We conclude that the appellants have not made showings sufficient to warrant a stay

pending appeal. We will however, leave the temporary stay in place until 8:00 a.m., MDT, on Monday, July 21, 2014, to allow appellants time to seek relief from the United States Supreme Court. Served on 07/11/2014. [14-4060] [Entered: 07/11/2014 05:08 PM]

07/18/2014
1 pg, 24.74 KB

[10192295] Supreme Court order granting stay of district court preliminary injunction filed. [14-4060] [Entered: 07/18/2014 03:40 PM]

07/22/2014
2 pg, 66.8 KB

[10193055] Transcript order form filed by Ms. Patti Walker. Transcript due 09/22/2014 for Patti Walker. [14-4060] [Entered: 07/22/2014 03:00 PM]

07/23/2014
2 pg, 20.4 KB

[10193168] Attorney admission letter, second notice sent. Attorney admission response date set to 08/04/2014. [14-4060] [Entered: 07/23/2014 08:45 AM]

08/08/2014

[10197175] Attorney Ms. Kathryn Harstad for Jonell Evans, Ms. Stacia Ireland, Ms. Marina Gomberg, Ms. Elenor Heyborne, Mr. Matthew Barraza, Mr. Donald Johnson, Mr. Carl Fritz Shultz and Mr. Tony Milner admitted to the bar of this court. [14-4060] [Entered: 08/08/2014 11:03 AM]

08/12/2014
1 pg, 101.52 KB

[10198070] Filed notice record is complete. Served on 08/12/2014. Appellants' brief and appendix due on 09/22/2014 for Gary Herbert, Sean Reyes and State of Utah. [14-4060] [Entered: 08/12/2014 03:55 PM]

08/18/2014
3 pg, 90.73 KB

[10199457] Motion filed by Appellants Gary Herbert, Sean Reyes and State of Utah to extend time to file appellant/petitioner's brief until 10/22/2014. Served on: 08/18/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-4060] JJJ [Entered: 08/18/2014 03:31 PM]

08/19/2014
9 pg, 116.29 KB

[10199683] Response filed by Mr. Matthew Barraza, Jonell Evans, Ms. Marina Gomberg, Ms. Elenor Heyborne, Ms. Stacia Ireland, Mr. Donald Johnson, Mr. Tony Milner and Mr. Carl Fritz Shultz to Appellants' Motion for Enlargement of Time to File Opening Brief. Served on 08/19/2014. Manner of Service: email, US mail. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-4060] LF [Entered: 08/19/2014 10:30 AM]

08/20/2014

[10199972] Reply filed by Gary Herbert, Sean Reyes and State of

10 pg, 122.01 KB Utah to Motion for Enlargement of Time to File Opening Brief.

Served on 08/20/2014. Manner of Service: email. This pleading

complies with all required (privacy, paper copy and virus) certifications: Yes. [14-4060] PD [Entered: 08/20/2014 08:59 AM]

08/26/2014
1 pg, 23.26 KB

[10201411] Order filed by Judges Gorsuch and Bacharach granting motion to extend time to file appellants' brief. Appellants' brief and appendix now due on 10/22/2014 for Gary Herbert, Sean Reyes and State of Utah. Served on 08/26/2014. [14-4060] [Entered: 08/26/2014 11:14 AM]

10/07/2014
4 pg, 86.04 KB

[10213088] Motion filed by Appellants Gary Herbert, Sean Reyes and State of Utah to dismiss case. Served on: 10/07/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-4060] PD [Entered: 10/07/2014 11:16 AM]

10/08/2014

[10213743] Order filed by Judges Kelly, Lucero and Holmes (as set forth in the dismissal order) granting appellants' motion to dismiss. (Text only entry - no attachment.) [14-4060] [Entered: 10/08/2014 02:12 PM]

10/08/2014
2 pg, 14.25 KB

[10213749] Dismissed. Denying request for remand as unnecessary. Procedural termination after other judicial action. Written, unsigned, unpublished. Judges Kelly, Lucero and Holmes. Mandate to issue forthwith. [14-4060] [Entered: 10/08/2014 02:19 PM]

10/08/2014

[10213750] Mandate issued. [14-4060] [Entered: 10/08/2014 02:19

2 pg, 16.45 KB PM]

10/20/2014
4 pg, 81.26 KB

[10216642] Stipulated Motion filed by parties to extend time to file for attorneys' fees and costs until 10/29/2014. Served on: 10/20/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes.-[Edited 10/21/2014 by BV to edit docket text to reflect proper relief requested] [14-4060] ES [Entered: 10/20/2014 05:13 PM]

10/21/2014
1 pg, 23.23 KB

[10216774] Order filed by Clerk of the Court granting stipulated motion to extend time to file for costs and fees until October 29, 2014. Served on 10/21/2014. [14-4060] [Entered: 10/21/2014 11:01 AM]

10/28/2014
4 pg, 249.98 KB

[10219125] Motion filed by Appellees Mr. Matthew Barraza, Jonell Evans, Ms. Marina Gomberg, Ms. Elenor Heyborne, Ms. Stacia Ireland, Mr. Donald Johnson, Mr. Tony Milner and Mr. Carl Fritz Shultz to file motion for extension of time until 11/10/2014 to file for attorneys' fees and costs. Served on: 10/28/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes.--[Edited 10/28/2014 by

10/28/2014
1 pg, 23.26 KB
11/10/2014 11/12/2014
1 pg, 23.17 KB
11/25/2014
2 pg, 54.49 KB
11/25/2014
1 pg, 23.54 KB
  

BV to change the event/relief codes and edit docket text to reflect proper relief requested] [14-4060] ES [Entered: 10/28/2014 01:57 PM]
[10219224] Order filed by Clerk of the Court granting second stipulated motion to extend time to file for costs and fees until November 10, 2014. Served on 10/28/2014. [14-4060] [Entered: 10/28/2014 03:53 PM]
This motion is withdrawn per the court's order dated 11/25/2014. [AT] LIS [Entered: 11/10/2014 04:39 PM]
[10223268] Order filed by Clerk of the Court: This matter is before the court on Appellees' Motion for Fees and Costs of Appeal (the "Motion"). The Appellants are directed to file a response to the Motion on or before 11/26/2014. Served on 11/12/2014. [14-4060] [Entered: 11/12/2014 12:22 PM]
[10227274] Motion filed by Appellees Mr. Matthew Barraza, Jonell Evans, Ms. Marina Gomberg, Ms. Elenor Heyborne, Ms. Stacia Ireland, Mr. Donald Johnson, Mr. Tony Milner and Mr. Carl Fritz Shultz to strike Motion for Fees and Costs. Served on: 11/25/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-4060] ES [Entered: 11/25/2014 08:56 AM]
[10227360] Order filed by Clerk of the Court (EAS) This matter is before the court on the plaintiff's Motion to Dismiss Motion for Fees and Costs. The request is unopposed. Upon consideration, we construe this motion as one to withdraw the request for fees and costs filed in this court on 11/10/2014. As construed, the motion is granted. The initial request will be stricken from the docket. Served on 11/25/2014. [14-4060] [Entered: 11/25/2014 11:44 AM]

	  

 
 (ORDER LIST: 573 U.S.)

FRIDAY, JULY 18, 2014

ORDER IN PENDING CASE

14A65

HERBERT, GOV. OF UT, ET AL. V. EVANS, JONELL, ET AL.

The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The preliminary injunction issued by the United States District Court for the District of Utah, case No. 2:14-cv-00055-DAK, on May 19, 2014, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.