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Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702
Tel.: (208) 484-2253 d@fergusonlawmediation.com

Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 405 S. 8th Street, Ste. 372 Boise, ID 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com

Shannon P. Minter Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org 	   Attorneys	  for	  Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON,

Case No.

Plaintiffs, v.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

C.L. "BUTCH" OTTER, as Governor of the State of Idaho, in his official capacity, and CHRISTOPHER RICH, as Recorder of Ada County, Idaho, in his official capacity,
Defendants.

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I. INTRODUCTION 1. Plaintiffs bring this action to challenge the constitutionality of Idaho’s laws that
exclude same-sex couples from marriage and fail to recognize the marriages of same-sex couples lawfully entered into in other jurisdictions. See Idaho Const. art. III, § 28; I.C. §§ 32-201, 32-209. Idaho’s refusal to marry same-sex couples and recognize valid out-of-state marriages of same-sex couples violates multiple guarantees of the Constitution of the United States. This Court should so declare and issue an injunction requiring defendants to issue marriage licenses to the unmarried plaintiffs and to recognize the existing marriages of the plaintiffs lawfully married in other states.
2. Plaintiffs Susan Latta and Traci Ehlers, and plaintiffs Lori and Sharene Watsen (the “Married Plaintiffs”) are legally married same-sex couples, having wed in other states. However, in their home state of Idaho, they are treated as legal strangers to their spouses.
3. Plaintiffs Shelia Robertson and Andrea Altmayer, and plaintiffs Amber Beierle and Rachael Roberstson (the “Unmarried Plaintiffs”), are unmarried same-sex couples in committed relationships who desire to marry. Each couple wishes to publicly declare their love and commitment before their family, friends, and community; to join their lives together and enter into a legally binding commitment to one another; and to share in the protections and security that marriage provides.
4. Plaintiffs are productive members of society, with diverse backgrounds, educations and professions. They are university instructors, a teacher of deaf children, a professional artist, a physician’s assistant, a small business owner, a historian, a clinical social worker, a warehouse manager and a certified massage therapist. One of the plaintiffs served full time in the Idaho National Guard for five years, during which time she served overseas in Operation Iraqi Freedom III and came under enemy attack. Three of the couples are raising children together, and one couple
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also enjoys caring for their grandchildren. The situations faced by these couples are similar to those faced by many other same-sex couples in Idaho who are denied the basic rights, privileges, and protections of marriage for themselves and their children.
5. Like many other couples with a life-long commitment, the Unmarried Plaintiffs are spouses in every sense, except that Idaho law will not allow them to marry. In fact, under Idaho law, solemnization of their commitment without a marriage license is a crime. I.C. § 32-406.
6. The Married Plaintiffs are lawfully married under the laws of sister states, but Idaho refuses to honor or recognize their marriages. Unilaterally and by operation of law alone, Idaho has effectively nullified their legal status and their rights and responsibilities as married people.
7. Under the Idaho Constitution, “a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. art. III, § 28. This provision bars same-sex couples from marrying and also precludes recognition of same-sex couples’ existing marriages or any other form of a domestic relationship outside of marriage.
8. Idaho’s exclusion of same-sex couples from marriage and refusal to respect the marriages of legally married same-sex couples adversely impact the plaintiffs and other Idaho same-sex couples in real and significant ways.
9. Idaho’s exclusion of same-sex couples from marriage and refusal to respect existing marriages undermines the plaintiff couples’ ability to achieve their life goals and dreams, disadvantages them financially, and denies them “dignity and status of immense import.” United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). Further, they and their children are stigmatized and relegated to a second-class status by being barred from marriage. Idaho’s exclusion of samesex couples from marriage and refusal to recognize the marriages of legally married same-sex couples “tell[] those couples and all the world that their [relationships] are unworthy” of
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recognition. Id. at 2694. By singling out same-sex couples and their families and excluding them from any type of marital protection, those laws also “humiliate[] the . . . children now being raised by same-sex couples” and “make[] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id.
10. In the not so distant past, the majority of states, including Idaho, had laws prohibiting marriage between people of different races. Until 1959, Idaho law barred as illegal marriages between Caucasians and other races— namely, African Americans, Native Americans, and Asians. See former I.C. § 32-206 (repealed 1959). The Supreme Court held such exclusions from marriage to be unconstitutional in Loving v. Virginia, 388 U.S. 1, 12 (1967), declaring: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
11. Our courts and society have discarded, one by one, marriage laws that violated the mandate of equality guaranteed by the Constitution, such as the anti-miscegenation laws and laws that have denied married women legal independence. History has taught that the legitimacy and vitality of marriage do not depend on upholding discriminatory marriage laws. On the contrary, eliminating these remaining unconstitutional barriers to marriage further enhances the institution and society. In fourteen states and the District of Columbia, same-sex couples are marrying, and the institution of marriage continues to thrive.1
12. Marriage contributes to the happiness, security, and peace of mind of countless couples and their families, and to the stability and wellbeing of society. Idaho, like other states,
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
1 The number of states that allow same-sex couples to marry continues to grow rapidly. The Hawaii legislature has a bill pending, and the New Mexico Supreme Court has the matter under review. In Illinois, the legislature has passed a bill which the governor has indicated he will sign.
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encourages and regulates marriage through hundreds of laws that provide benefits to and impose obligations on married couples. In exchange, Idaho receives the well-established benefits that marriage brings: stable, supportive families that contribute to both the social and economic wellbeing of Idaho. “Marriage has long been favorably recognized in our society as one of the fundamental institutions upon which our society is founded. Accordingly, the laws reflect a certain favorability toward creating and maintaining stable and harmonious marriages.” State v. Soura, 796 P.2d 109, 114 (Idaho 1990). When Idaho withholds a marriage license from a same-sex couple, or refuses to recognize a same-sex couple’s valid marriage from another jurisdiction, Idaho circumscribes an individual’s basic life choices, classifies persons in a manner that denies them the public recognition and myriad benefits of marriage, prevents couples from making a legally binding commitment to one another and being treated by the government and by others as a family rather than as unrelated individuals, and harms society by burdening and disrupting committed families and preventing same-sex couples from being able to fully protect and assume responsibility for one another and their children.
13. Idaho’s exclusion of same-sex couples from marriage, and its refusal to respect the marriages of same-sex couples validly entered into in other states, violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. With respect to the Unmarried Plaintiffs, Idaho’s exclusion deprives them of their fundamental right to marry and infringes their constitutionally protected interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association. With respect to the Married Plaintiffs, Idaho’s refusal to respect their marriages deprives them of their constitutionally protected liberty interest in their marital status, burdens their exercise of fundamental rights including the right to marry, and discriminates against the class of legally married persons. Idaho’s treatment of all the plaintiffs is
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subject to heightened scrutiny because it burdens fundamental constitutional rights and because it discriminates based on sex and sexual orientation. The challenged Idaho statutes and constitutional provision cannot survive any level of constitutional scrutiny, however, because they do not rationally further any legitimate government interest, but serve only to injure and humiliate samesex couples and their families.
14. Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief against the defendants. Specifically, plaintiffs seek: (a) a declaration that Idaho’s prohibition of marriage for same-sex couples and its refusal to recognize the marriages of same-sex couples validly entered into outside Idaho violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (b) a permanent injunction (i) preventing defendants from denying the Unmarried Plaintiffs the right to marry, and (ii) directing defendants to recognize the marriages of the Married Plaintiffs that were validly entered into in states outside Idaho. II. PARTIES
A. The Plaintiffs 15. Plaintiffs Susan Latta and Traci Ehlers were married in California on August 4, 2008 and reside in Boise, Idaho, where they own their home together. Susan Latta is a professional artist and adjunct professor at Boise State University, and Traci Ehlers is an owner of a wellestablished local small business. Together they have raised children, A. and J., into adults, and are grandparents of two children, M. and L. They wish to have their marriage recognized in the State of Idaho, and they and their children and grandchildren have been harmed by Idaho’s refusal to recognize their lawful marriage.
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16. Plaintiffs Lori and Sharene Watsen were married in New York on October 28, 2011 and reside in Boise, Idaho. Lori Watsen is a Licensed Clinical Social Worker and Associate Field Director for Boise State University’s School of Social Work. Sharene Watsen is a Physician Assistant with a local medical specialty group. Both have been awarded their Master’s degrees in their respective professional studies. Sharene Watsen gave birth to their son in May 2013, after conceiving through assisted reproduction. They are raising their child, C., together as his parents. Lori Watsen’s petition to adopt C. was denied and dismissed on September 18, 2013 by the Ada County Magistrate Court, in the Fourth Judicial District of Idaho. The court did not recognize their lawful marriage as valid under Idaho law and held that the Idaho legislature did not intend to allow adoptions by “cohabitating, committed partners.” They wish to have their marriage recognized in the State of Idaho, and they and their son have been harmed by Idaho’s refusal to recognize their lawful marriage.
17. Plaintiffs Shelia Robertson and Andrea Altmayer have been in a committed relationship for sixteen years and reside in Boise, Idaho. Shelia Robertson is a teacher of deaf children and a nationally certified sign language interpreter with a Master’s degree in Education. Andrea Altmayer is a certified massage therapist with a Bachelor’s degree in Health Sciences. Andrea Altmayer gave birth to their son in November 2009, after conceiving through assisted reproduction. They are raising their child, B., together as his parents. On November 6, 2013, Andrea Altmayer and Shelia Robertson appeared in person at the Ada County Recorder’s Office in Boise, Idaho to apply for a marriage license. They meet all of Idaho’s qualifications for the issuance of a marriage license, except that they are of the same sex. Defendant Rich, through his authorized deputy, refused their marriage license application because they are a same-sex couple. They wish to
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marry in the State of Idaho, and they and their child have been harmed by Idaho’s refusal to allow them to do so.
18. Plaintiffs Amber Beierle and Rachael Robertson have been in a committed relationship for three years and reside in Boise, Idaho, where they own their home together. Amber Beierle is an education specialist and manager of a state historic site, with a Master’s degree in Public History. Rachael Robertson manages a commercial supply warehouse. She is also a veteran of the Idaho Army National Guard, with five years of service. During that time, she served a tour of duty in Iraq. Rachael Robertson was awarded a combat medal and combat action badge, as well as a good solider conduct medal in connection with her honorable service to her country and the Idaho Army National Guard. On November 6, 2013, Amber Beierle and Rachael Robertson appeared in person at the Ada County Recorder’s Office in Boise, Idaho to apply for a marriage license. They meet all of Idaho’s requirements for the issuance of a marriage license, except that they are of the same sex. Defendant Rich, through his authorized deputy, refused their marriage license application because they are a same-sex couple. They wish to marry in the State of Idaho and have been harmed by Idaho’s refusal to allow them to do so.
B. The Defendants 19. Defendant C.L. "Butch” Otter is Governor of the State of Idaho. Article VI, section 5 of the Idaho Constitution states: “The supreme executive power of the state is vested in the governor, who shall see that the laws are faithfully executed.” He is responsible for upholding and ensuring compliance with the state constitution and statutes prescribed by the legislature, including Idaho’s laws barring same-sex couples from marriage and refusing to recognize the valid out-ofstate marriages of same-sex couples. Governor Otter also bears the authority and responsibility for the formulation and implementation of policies of the executive branch. Governor Otter is a person
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within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. Governor Otter’s official residence is in Ada County, Idaho, within the District of Idaho. He is sued in his official capacity.
20. Defendant Christopher Rich is the Recorder of Ada County, Idaho. Article X, section 16 of the Idaho Constitution established the position of clerk of the district court. Article XVIII, section 6 of the Idaho Constitution provides that the clerk of the district court shall also be ex-officio auditor and recorder. See also I.C. § 31-2001. Under Idaho law, as the Ada County Recorder, Defendant Rich has “the authority to issue marriage licenses to any party applying for the same who may be entitled under the laws of this state to contract matrimony.” I.C. § 32-401, I.C. §32-403. Christopher Rich is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. Christopher Rich’s official residence is in Ada County, Idaho, within the District of Idaho. He is sued in his official capacity.
21. Defendants, through their respective duties and obligations, are responsible for enforcing Idaho’s laws barring same-sex couples from marriage and refusing to recognize the valid out-of-state marriages of same-sex couples. Each defendant, and those subject to their supervision and control, have caused the harms alleged, and will continue to injure plaintiffs if not enjoined. Accordingly, the relief requested is sought against both defendants, as well as all persons under their supervision and control, including their officers, employees and agents. III. JURISDICTION AND VENUE
22. Plaintiffs bring this action under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202 to redress the deprivation under color of state law of rights secured by the United States Constitution.
23. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and
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laws of the United States. This Court has personal jurisdiction over plaintiffs and defendants. 24. Venue is proper in this Court under 28 U.S.C. § 1391 (b)(1) and (2) because the
defendants reside and/or work in this District and both defendants reside in this State, and because a substantial part of the acts and events giving rise to this Complaint occurred in this District.
25. This Court has authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. IV. STATEMENT OF FACTS
Idaho’s Laws Barring Same-Sex Couples from Marriage and Refusing to Recognize the Valid Out-of-State Marriages of Same-Sex Couples 26. Historically, Idaho has not questioned the legitimacy of marriages from other states that are valid under the other state’s laws. From territorial days until 1996, Idaho recognized all “foreign” marriages if they were lawful under the laws of the other jurisdiction. 1867, p. 71, § 5; R.S. § 2428; I.C. § 32-209. 27. In 1996, however, in response to the mere possibility that some states might permit same-sex couples to marry although none had yet done so, the Idaho legislature amended Idaho Code section 32-209 to create an exception to the longstanding rule that Idaho generally respects marriages that are validly entered into in other states only for the legal marriages of same-sex couples. That statute now provides: All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state.
28. Likewise, I.C. § 32-201 provides:
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Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by the issuance of a license and a solemnization as authorized and provided by law. Marriage created by a mutual assumption of marital rights, duties or obligations shall not be recognized as a lawful marriage.
29. In 2006, although Idaho’s statutes already barred marriage by same-sex couples and denied recognition to the marriages of same-sex couples who legally married out of state, Idaho amended its Constitution to do so as well. Article III, section 28 provides:
A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state. Harms Caused by Idaho’s Laws Barring Same-Sex Couples from Marriage and Refusing to Recognize Same-Sex Couples’ Valid Out-of-State Marriages
	   30. Plaintiffs are residents of Idaho who experience the same joys and challenges of family life as their neighbors, co-workers, and other community members who may marry freely and whose legal marriages are respected under Idaho law. Plaintiffs are productive, contributing citizens who support their families and nurture their children, but must do so without the same legal shelter, dignity, and respect afforded by Idaho to other families through access to the universally celebrated status of marriage. Idaho’s exclusion of plaintiffs from marriage, and defendants’ enforcement of that exclusion, as well as Idaho’s refusal to respect the marriages of legally married same-sex couples from other states, subject plaintiffs to an inferior “second class” status as Idahoans relative to the rest of the community. These laws deprive them and their children of equal dignity, security, and legal protections afforded to other Idaho families. 31. Plaintiffs Susan Latta and Traci Ehlers were married in California on August 4, 2008 and would be recognized as such under Idaho law but for the fact that they are a same-sex couple. Instead, they are treated as legal strangers to one another under Idaho law.
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32. Plaintiffs Lori and Sharene Watsen were married in New York on October 28, 2011 and would be recognized as such under Idaho law but for the fact that they are a same-sex couple. Instead, they are treated as legal strangers to one another under Idaho law.
33. Plaintiff couples Shelia Robertson and Andrea Altmayer and Amber Beierle and Rachael Robertson applied for marriage licenses in Ada County, Idaho on November 6, 2013. Defendant Rich, through his authorized agent, refused their marriage license applications because they are same-sex couples.
34. In addition to stigmatizing a portion of Idaho’s population as second-class citizens, Idaho’s prohibition on marriage by same-sex couples, and its refusal to recognize valid marriages from other jurisdictions, deprive same-sex couples of critically important rights and responsibilities that married couples rely upon to secure their marriage commitment and safeguard their families. By way of example, and without limitation, same-sex partners are denied:
a. The right to have a minister or other state-authorized official solemnize their commitment to be married. I.C. § 32-406 (attaching criminal penalties to knowingly solemnizing a marriage of a couple who do not have a marriage license or who are not legally competent to be married in Idaho).
b. The right to acquire an interest in community property as a spouse. I.C. § 32-906. c. The right to be supported financially during marriage, enforced by criminal penalties for
non-support. I.C. § 18-401(3). d. The right to be a presumed parent to a child born to a spouse during marriage, or within 300
days of the end of a marriage. I.C. § 16-2002(12) (a man married to a woman when a child is born is the presumed father).
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e. The right to be recognized as a spouse when petitioning to adopt a child born to a spouse. I.C. §§ 16-1503, 16-1506, 32-201, 32-202, 32-209.
f. The right to have access to an ill spouse at the hospital and to make medical decisions for an ill or incapacitated spouse without requiring a written power of attorney. I.C. § 39-4504.
g. The right to have priority to be appointed as a conservator in the event that a spouse becomes incapacitated. I.C. § 15-5-410(1)(c).
h. The right to file a joint state income tax return as a married couple. I.C. § 60-3031. The Idaho Tax Commission recently interpreted Idaho law as requiring same sex couples who are lawfully married in another jurisdiction to file individual tax returns in Idaho after recalculating their joint federal return as if they were not married. Idaho Temporary Tax Commission Rule 805T (Draft 9/10/13); see also http://tax.idaho.gov/n-feed.cfm?idd=424
i. The right to spousal insurance coverage and benefits, when spousal benefits are otherwise available.
j. A host of federal rights and responsibilities that pertain to married couples, including but not limited to those related to Social Security, Medicare, Medicaid, the Family Medical Leave Act, and the Veteran’s Administration.
k. The right to a court-ordered equitable distribution of property upon the dissolution of the marriage. I.C. § 32-712.
l. The right to recognition as a legal parent, which allows access to court-ordered custody, child support, and visitation upon the dissolution of the marriage. I.C. § 32-717.
m. The right to have certain marital assets and property exempt from consideration when determining eligibility for long-term care benefits for a spouse under the Medicaid program. I.C. § 56-209e.
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n. The right to receive certain worker’s compensation benefits for a deceased spouse who has died on the job. I.C. § 72-1019(3)(b).
o. The right to inherit a share of the estate of a spouse who dies without a will. I.C. § 15-2102.
p. The right to receive an elective share of the estate of a spouse who died with a will. I.C. § 15-2-301.
q. The right to a homestead allowance from a deceased spouse’s estate. I.C. § 15-2-402. r. The privilege not to have a spouse testify in a court proceeding about confidential
communications made during the marriage. Idaho Rule of Evidence 504; I.C. § 9-203. V. CLAIMS FOR RELIEF
First Claim For Relief: Idaho’s Ban on Marriage by Same-Sex Couples Deprives the Unmarried Plaintiffs of Their Rights to Due Process of Law under the Fourteenth Amendment to the United States Constitution 35. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 36. Plaintiffs state this cause of action against defendants in their official capacities for purposes of seeking declaratory and injunctive relief. 37. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 38. The Idaho Constitution, article III, section 28, Idaho Code section 32-201, and all other sources of state law that preclude marriage for same-sex couples violate the due process guarantee of the Fourteenth Amendment both facially and as applied to plaintiffs.
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39. The right to marry the unique person of one’s choice and to direct the course of one’s life without undue government restriction is one of the fundamental rights protected by the Due Process Clause of the Fourteenth Amendment. Defendants’ actions to enforce the marriage ban directly and impermissibly infringe upon plaintiffs’ choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.
40. The Due Process Clause also protects choices central to personal dignity, privacy, and autonomy, including each individual’s fundamental liberty interests in family integrity and intimate association. Defendants’ actions to enforce the marriage ban directly and impermissibly infringe upon plaintiffs’ deeply intimate, personal, and private decisions regarding family life, and preclude them from obtaining full liberty, dignity, privacy, and security for themselves, their family, and their parent-child bonds.
41. As Idaho’s Governor and chief executive officer, defendant Otter’s duties and actions to enforce Idaho’s exclusion of same-sex couples from marriage, including those actions taken pursuant to his responsibility for the policies and actions of the executive branch relating to, for example and without limitation, health insurance coverage, vital records, tax obligations, and state employee benefits programs, violate plaintiffs’ fundamental right to marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association under the Fourteenth Amendment to the United States Constitution.
42. As the Ada County Registrar, defendant Rich ensures compliance with Idaho’s exclusion of same-sex couples from marriage by, for example, refusing to issue marriage licenses to same-sex couples. This violates the plaintiffs’ fundamental right to marry and fundamental interests in liberty, dignity, privacy autonomy, family integrity, and intimate association under the Fourteenth Amendment to the United States Constitution.
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43. Defendants cannot satisfy the requirements of the Due Process Clause because Idaho’s exclusion of same-sex couples from marriage is not rationally related to any legitimate governmental interest and thus cannot survive even rational basis review, much less the heightened level of scrutiny that applies to deprivation of the fundamental right to marry and interference with fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
Second Claim for Relief: Idaho’s Failure to Recognize the Marriages of the Plaintiffs Who Are Lawfully Married in Other States Violates Their Rights to Due Process of Law under the Fourteenth Amendment to the United States Constitution 44. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 45. Plaintiffs Susan Latta and Traci Ehlers are lawfully married under laws of the state of California. 46. Plaintiffs Lori and Sharene Watsen are lawfully married under the laws of the state of New York. 47. When a marriage is authorized by a state, numerous rights, responsibilities, benefits, privileges, and protections attach to that status under state and federal law. 48. Once a couple enters into a valid marriage in a state, the couple has a liberty interest in their marital status that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendment, regardless of where the married couple chooses to live within the United States. 49. The Married Plaintiffs in this case have a protected liberty interest in their lawful marital status and in the comprehensive protections and obligations that marriage provides. 50. The Married Plaintiffs in this case also have a protected property interest in their lawful marital status and in the comprehensive protections and obligations that marriage provides.
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51. By operation of Idaho Code section 32-209, and article III, section 28 of the Idaho Constitution, the lawful marriages of plaintiffs Susan Latta and Traci Ehlers and plaintiffs Lori and Sharene Watsen are treated as non-existent and without any legal effect or status in Idaho. Idaho law effectively strips these plaintiffs of a valuable and fundamental legal status that has been conferred on them by a sister state and deems them legal strangers to each other.
52. Accordingly, Idaho’s refusal to recognize the valid out-of-state marriages of these plaintiffs impermissibly deprives them of their fundamental liberty and property interests in their marriages and the comprehensive protections afforded by marriage in violation of the Fourteenth Amendment’s Due Process Clause.
53. Moreover, Idaho’s refusal to recognize the valid out-of-state marriages of the Unmarried Plaintiffs also impermissibly burdens and interferes with their exercise of the fundamental right to marry in violation of the Fourteenth Amendment’s Due Process Clause.
54. Defendants' deprivation of these plaintiffs’ constitutional rights under color of state law violates 42 U.S.C. § 1983.
55. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause them irreparable harm.
56. The Married Plaintiffs are entitled to declaratory and injunctive relief on this basis. Third Claim For Relief: Idaho’s Ban on Marriage by Same-Sex Couples Deprives the Unmarried Plaintiffs of Their Rights to Equal Protection of the Laws under the Fourteenth Amendment to the United States Constitution 57. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 58. Plaintiffs state this cause of action against defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
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59. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
60. Idaho Constitution, article III, section 28 and Idaho Code sections 32-201 and 32209 and all other sources of state law that preclude marriage by same-sex couples violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to plaintiffs. The conduct of defendants in enforcing these laws violates the right of plaintiffs to equal protection by discriminating impermissibly on the basis of sexual orientation and sex.
61. As Idaho’s Governor, defendant Otter is charged as its chief executive officer with duties and actions to enforce Idaho’s exclusion of same-sex couples from marriage, including without limitation those actions taken pursuant to his responsibility for the policies and actions of the executive branch relating to, for example, health insurance coverage, vital records, tax obligations, and state employee benefits programs. Such enforcement of Idaho’s exclusion of same-sex couples from marriage violates plaintiffs’ constitutional rights to equal treatment, without regard to sexual orientation or sex, under the Fourteenth Amendment to the United States Constitution.
62. As the Ada County Registrar, defendant Rich ensures compliance with Idaho’s laws barring same-sex couples from marriage by, for example, denying same-sex couples marriage licenses. This violates the constitutional rights to equal treatment of plaintiffs Andrea Altmayer and Shelia Robertson and plaintiffs Amber Beierle and Rachael Robertson.
63. Idaho’s exclusion of same-sex couples from marriage, and defendants’ actions to enforce that exclusion, deny same-sex couples equal dignity and respect, and deprive their families of a critical safety net of rights and responsibilities. These laws brand same-sex couples and their
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children as second-class citizens through government-imposed stigma and foster private bias and discrimination, by instructing all persons with whom same-sex couples interact, including their own children, that their relationships and families are less worthy than others. Idaho’s exclusion of same-sex couples from marriage and defendants’ actions reflect moral disapproval and animus toward same-sex couples.
64. Same-sex couples such as the plaintiff couples are similar to opposite-sex couples in all of the characteristics relevant to marriage. Committed same-sex couples make the same commitment to one another as other couples. They build their lives together, plan their futures together, and hope to grow old together, caring for one another physically, emotionally and financially.
65. The Unmarried Plaintiffs seek to marry for the same types of reasons, and to provide the same legal shelter to their families, as different-sex spouses.
66. Like many other couples, same-sex couples are often parents raising children together. Three of the four named plaintiff couples are raising children together.
67. Plaintiffs and their children are equally worthy of the tangible rights and responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on different-sex couples and their children. For the many children being raised by same-sex couples, the tangible resources and societal esteem that marriage confers on families is no less precious than for children of different-sex couples.
A. Discrimination Based on Sexual Orientation 68. Idaho’s laws barring same-sex couples from marriage target same-sex Idaho couples as a class by excluding them from marriage or any other form of relationship recognition on the basis of sexual orientation.
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69. Laws that discriminate based on sexual orientation should be subjected to heightened equal protection scrutiny for numerous reasons.
70. Lesbians and gay men have suffered a long and painful history of discrimination in Idaho and across the United States. Sexual orientation bears no relation to an individual’s ability to perform in or contribute to society. Sexual orientation is a core, defining trait that is so fundamental to one’s identity and autonomy that a person may not legitimately be required to abandon or change it (even if that were possible) as a condition of equal treatment under the law.
71. Lesbian, gay, and bisexual persons are a discrete and insular minority, and strong ongoing prejudice against them continues to seriously curtail the political processes that might ordinarily be relied upon to protect them. In Idaho, lesbian, gay, and bisexual persons lack any statutory protection against discrimination and can be openly and legally discriminated against in all arenas, including employment, public accommodations, and housing. Idaho’s constitutional amendment excluding same-sex couples from marriage and banning any form of relationship recognition other than marriage is discrimination based upon sexual orientation and is unlawful under the Fourteenth Amendment to the United States Constitution as it denies same-sex couples equal protection under the laws of Idaho.
72. The exclusion of same-sex couples from marriage based on sexual orientation cannot survive heightened scrutiny under the Equal Protection Clause because the State of Idaho cannot offer an exceedingly persuasive showing that the exclusion is substantially related to the achievement of any important governmental objective. Moreover, because the exclusion of samesex couples from marriage does not serve any legitimate government interest, the exclusion violates the Equal Protection Clause even under rational basis review.
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B. Discrimination Based on Sex 73. Idaho’s exclusion of same-sex couples from marriage discriminates against plaintiffs on the basis of sex, barring plaintiffs from marriage solely because each of the plaintiffs wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of the Idaho’s laws, which restrict marriage to “a man and a woman.” Idaho Const. art. III, § 28. 74. Because of these sex-based classifications, Andrea Altmayer is precluded from marrying her devoted life partner because she is a woman and not a man; were Andrea Altmayer a man, she could marry Shelia Robertson. Likewise, Amber Beierle is unable to marry Rachael Robertson because Amber is a woman rather than a man. 75. Idaho’s exclusion of same-sex couples from marriage also serves the impermissible purpose of enforcing and perpetuating sex stereotypes by excluding plaintiffs from marriage, because plaintiffs have failed to conform to sex-based stereotypes that women should be attracted to, form intimate relationships with, and marry men, not other women, and that men should be attracted to, form intimate relationships with, and marry women, not other men. 76. Given that there are no longer legal distinctions between the duties of husbands and wives under Idaho law, there is no basis for the sex-based eligibility requirements for marriage. 77. The exclusion of plaintiffs from marriage based on their sex and the enforcement of gender-based stereotypes cannot survive the heightened scrutiny required for sex-based discrimination, nor is it rationally related to any legitimate governmental purpose. C. Discrimination With Respect to Fundamental Rights and Liberty Interests
Secured by the Due Process Clause 78. Idaho’s exclusion of same-sex couples from marriage discriminates against plaintiffs with respect to the exercise of the fundamental right to marry the person of one’s choice, and with respect to their liberty interests in personal autonomy, and family integrity, association
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and dignity. Such discrimination is subject to heightened scrutiny. Idaho’s exclusion of same-sex couples cannot survive such scrutiny, and indeed cannot survive even rational basis review.
Fourth Claim for Relief: Idaho’s Failure to Recognize the Marriages of the Plaintiffs Who Are Lawfully Married in Other States Violates Their Rights to Equal Protection of the Laws under the Fourteenth Amendment to the United States Constitution 79. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 80. Idaho has a long history of respecting marriages that were validly entered into in other states, and affording those marriages all of the rights and privileges of an Idaho marriage. But in 1996, and again in 2006, it singled out the legal marriages of same-sex couples in order to exclude them from recognition and to deny the spouses in such marriages any of the rights, protections, and responsibilities of marriage. 81. Idaho’s refusal to recognize the lawful marriages of the Married Plaintiffs discriminates against the class of legally married persons and also discriminates against the Married Plaintiffs based on sexual orientation, sex, and with respect to the exercise of the fundamental right to marry the person of one’s choice and fundamental liberty interests in personal autonomy, dignity, privacy, family integrity, and intimate association. 82. Idaho’s laws singling out legally married same-sex couples in order to exclude their marriages from recognition cannot survive heightened scrutiny under the Equal Protection Clause because the State of Idaho cannot offer an exceedingly persuasive showing that those laws are substantially related to the achievement of any important government objective. Moreover, because excluding legally married same-sex couples from recognition does not serve any legitimate government interest, those laws violate the Equal Protection Clause even under rational basis review.
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83. While the states have traditionally had the authority to regulate marriage, that authority “must respect the constitutional rights of persons,” see Windsor, 133 S. Ct. at 2691, and it is “subject to constitutional guarantees,” see id.
84. The principal purpose and effect of Idaho’s non-recognition laws “is to identify a subset of state-sanctioned marriages and make them unequal.” Windsor, 133 S. Ct. at 2694. These laws “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of [other] States.” Id. at 2693.
85. Idaho’s laws excluding legally married same-sex couples from recognition are subject to heightened scrutiny. But even under rational basis review, a purpose to harm a minority class of persons cannot justify disparate treatment of that group, as this is not a legitimate governmental interest. Romer v. Evans, 517 U.S. 620, 635 (1996); Windsor, 133 S. Ct. at 2693.
86. Accordingly, the enforcement of Idaho laws that refuse to recognize the lawful marriages of the Married Plaintiffs, relegating them to a second and unequal class of married couples, violates the equal protection rights of those plaintiffs. They are entitled to declaratory and injunctive relief on this basis.
Declaratory and Injunctive Relief 87. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 88. This case presents an actual controversy because defendants’ present and ongoing violation of plaintiffs’ rights to due process and equal protection subject plaintiffs to serious and immediate harms, warranting the issuance of a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and the Federal Rules of Civil Procedure 57 and 65.
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89. Plaintiffs seek injunctive relief to protect their constitutional rights and avoid the injuries described above. A favorable decision enjoining defendants would redress and prevent the irreparable injuries to plaintiffs which have been identified, for which plaintiffs have no adequate remedy at law or in equity. VI. PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court enter judgment:
A. Declaring that the provisions of and enforcement by defendants of Idaho’s laws excluding same-sex couples from marriage, including article III, section 28 of Idaho’s Constitution, Idaho Code section 32-201, and any other sources of state law that exclude same-sex couples from marrying violate the Unmarried Plaintiffs’ rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution;
B. Declaring that the provisions of and enforcement by defendants of Idaho’s laws barring recognition of the valid out-of-state marriages of the Married Plaintiffs same-sex couples, including article III, section 28 of Idaho’s Constitution, Idaho Code section 32-209, and any other sources of state law that refuse recognition to the marriages of the plaintiffs who validly married a same-sex spouse in another jurisdiction violate plaintiffs’ rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution;
C. Permanently enjoining enforcement by defendants of article III, section 28 of Idaho’s Constitution, Idaho Code sections 32-201 and 32-209, and any other sources of state law to exclude the Unmarried Plaintiffs from marriage or to refuse recognition of the marriages of the Married Plaintiffs;
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D. Requiring defendants in their official capacities to permit issuance of marriage licenses to
the Unmarried Plaintiffs, pursuant to the same restrictions and limitations applicable to
different-sex couples, and to recognize the marriages validly entered into by the Married
Plaintiffs;
E. Awarding plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter
alia, 42 U.S.C. § 1988 and other applicable laws; and
F. Granting such other and further relief as the Court deems just and proper.
G. The declaratory and injunctive relief requested in this action is sought against each
defendant; against each defendant’s officers, employees, and agents; and against all persons
acting in active concert or participation with any defendant, or under any defendant’s
supervision, direction, or control.
DATED: November 8, 2013
Respectfully submitted,
_______________/s/_______________________ Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com
Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 405 S. 8th Street, Ste. 372 Boise, ID 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com
National Center for Lesbian Rights Shannon P. Minter* Christopher F. Stoll* 870 Market Street, Suite 370
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Case 1:13-cv-00482-CWD Document 1 Filed 11/08/13 Page 26 of 26 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org cstoll@nclrights.org Attorneys for Plaintiffs * Motions for Admission Pro Hac Vice Pending
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 Case 1:13-cv-00482-CWD Document 98 Filed 05/13/14 Page 1 of 57

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON,
Plaintiffs,
v.
C.L. “BUTCH” OTTER, as Governor of the State of Idaho, in his official capacity, and CHRISTOPHER RICH, as Recorder of Ada County, Idaho, in his official capacity,
Defendants, and
STATE OF IDAHO,
Defendant-Intervenor.

Case No. 1:13-cv-00482-CWD
MEMORANDUM DECISION AND ORDER

I. INTRODUCTION
It is precisely because the issue rais ed by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.
— The Honorable Harry Blackmun1

1

Bowers v. Hardwick, 478 U.S. 186, 211 (1986) (Blackmun, J., dissenting), overruled by

Lawrence v. Texas, 539 U.S. 558 (2003).

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This case asks a basic and enduring question about the essence of American

government: Whether the will of the majority, based as it often is on sincere beliefs and

democratic consensus, may trump the rights of a minority. Plaintiffs are two same-sex

couples who desire to marry in Idaho and two same-sex couples who legally married in

other states and wish to have their marriages recognized in Idaho. Under the Constitution

and laws of the State of Idaho (Idaho’s Marriage Laws), marriage between a man and a

woman is the only legally recognized domestic union. Idaho effectively prohibits same-

sex marriage and nullifies same-sex marriages legally celebrated in other states. Plaintiffs

request the Court declare these laws unconstitutional and enjoin Idaho from enforcing

them, which would allow the Unmarried Plaintiffs to marry and the Married Plaintiffs to

be legally recognized as married in the state they consider home. Although 17 states legally recognize same-sex marriages,2 Idaho is one of many

states that has chosen the opposite course. Like courts presiding over similar cases across

the country, the Court must examine whether Idaho’s chosen course is constitutional.

Significantly, the Supreme Court of the United States recently held that the federal

government cannot constitutionally define marriage as a legal union between one man

and one woman. United States v. Windsor, 133 S. Ct. 2675 (2013). Writing for the

majority in Windsor, Justice Kennedy reasoned the “purpose and effect” of the federal

2

Six states have legalized same-sex marriage through court decisions (California,

Connecticut, Iowa, Massachusetts, New Jersey, and New Mexico); eight have done so through

legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island,

and Vermont); and three have legalized same-sex marriage by popular vote (Maine, Maryland,

and Washington). See Kitchen v. Herbert, 961 F.Supp.2d 1181, 1192 n.4 (D. Utah 2013). The

District of Columbia also legalized same-sex marriage through legislation. Id.

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man-woman marriage definition was “to disparage and injure” legally married same-sex couples in derogation of the liberty, due process, and equal protection guaranteed by the Fifth Amendment to the United States Constitution. Id. at 2696. Here, the Court considers a related but distinct question: Do Idaho’s Marriage Laws deny Plaintiffs the due process or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution?
After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. See, e.g., id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons. . . .”). Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.
II. BACKGROUND Marriage works a fundamental change on the lives of all who experience it. The decision to marry is both a deeply personal expression of love and a public declaration of commitment. For many, marriage is also a profoundly important religious institution, cementing and celebrating a life-long union enriched by enduring traditions. These traditions vary from faith to faith, but when most people think of marriage they think of the ceremony—the wedding—with all of the hope and joy those pivotal moments entail.
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Compared to the immense personal and spiritual significance of marriage as a ceremonial rite, the civil institution of marriage is much more prosaic. A. Idaho’s Marriage Laws
A series of licensing statutes govern civil marriage in Idaho. As far as the State is concerned, marriage is a contract evidenced by a State-issued license and a solemnization. Idaho Code § 32-201(1). The solemnization itself can be secular or religious, and the officiant need not be an ordained minister. Id. §§ 32-303 to -304. Regardless of their preferred method of solemnization, opposite-sex couples are eligible for a marriage license so long as they meet certain minimal requirements. See id. §§ 32202 (age limitations); -205, -206 (consanguinity limitations); -207 (prohibition of polygamous marriages).
A multitude of legal benefits and responsibilities flow from a valid civil marriage contract. These marital benefits include the right to be recognized as a spouse when petitioning to adopt a child born to a spouse, see id. §§ 16-1503, -1506; have access to an ill spouse at the hospital and to make medical decisions for an ill or incapacitated spouse without a written power of attorney, see id. § 39-4504; file a joint state income tax return as a married couple, see id. § 63-3031; inherit a share of the estate of a spouse who dies without a will, see id. § 15-2-102; preclude a spouse from testifying in a court proceeding about confidential communications made during the marriage, see id. § 9-203; and jointly own community property with right of survivorship, see id. § 15-6-401. These incidents of marriage touch every aspect of a person’s life. From the deathbed to the tax form, property rights to parental rights, the witness stand to the probate court, the legal status of
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“spouse” provides unique and undeniably important protections. Opposite-sex married couples enjoy many of these benefits by automatic operation of law.
A couple need not marry in Idaho to enjoy these benefits, as Idaho generally follows the so-called “place of celebration rule.” See Morrison v. Sunshine Mining Co., 127 P.2d 766, 769 (Idaho 1942) (“Having assumed and entered into the marital relation with appellant in Montana, the status thus established followed Morrison to Idaho and could not be shed like a garment on entering this state.”). Under this longstanding rule, a marriage contracted outside Idaho will be valid in Idaho if the marriage is valid where contracted. See Idaho Code § 32-209. That is, unless the marriage is between two persons of the same sex. Id.
Same-sex couples are categorically prohibited from obtaining a marriage license in Idaho or from having their otherwise valid out-of-state marriages recognized in Idaho. But for the fact they are same-sex couples, Plaintiffs would either be recognized as married or be eligible to marry.
Plaintiffs challenge three specific provisions of Idaho law.3 First, Idaho Code § 32201 defines marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making it is necessary.” Id.

3

The Idaho Code is replete with provisions referencing “husband and wife” or the

traditional, opposite-sex definition of marriage. See, e.g., id. §§ 32-202 (referring to “the male”

and “the female” parties to a marriage contract); 32-304 (requiring couple to declare they “take

each other as husband and wife”); 32-901 to -929 (relating to “Husband and Wife – Separate and

Community Property”). The Court need not survey these scattered provisions because, as

discussed in Part II.D below, Plaintiffs’ requested relief is broad enough to cover any source of

Idaho law that would prohibit or refuse to recognize same-sex marriages, wherever contracted.

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§ 32-201(1). This statute prohibits same-sex marriage regardless of whether a couple otherwise qualifies for a marriage license.
Second, Idaho Code § 32-209 provides the mechanism by which Idaho recognizes the legal validity of marriages contracted in other states or countries. The statute provides:
All marriages contracted without this state, whic h would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they viol ate the public policy of th is state. Marriages that violate the public poli cy of t his state include, but are not limited to, samesex marriages, and marriages entered into under the laws of another state or country with the intent to eva de the pr ohibitions of the marriage laws of this state. Id. § 32-209. This statute creates a two-tiered system for out-of-state marriages. While opposite-sex couples benefit from the place of celebration rule, married same-sex couples shed their marital status upon entering Idaho. Although the State’s non-recognition policy is not limited to same-sex marriages and marriages contracted with the intent to evade Idaho law, the statute lists no other form of marriage specifically. Third, the Idaho Constitution effectively bans legal recognition of same-sex unions. In November of 2006, a majority of Idaho’s electorate voted to add the following language to the Idaho Constitution: “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. Art. III, § 28. This provision has the combined legal effect of the two statutes referenced above. But, by virtue of its place in the Idaho Constitution, the amendment imposes powerful restraints on Idaho’s Legislature and Judiciary. The provision effectively precludes a state
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court from finding that Idaho law requires the State to recognize any type of same-sex union. And it precludes every legislative body in Idaho from recognizing civil unions or any other same-sex relationship approximating marriage. Absent a superseding constitutional amendment, no branch of state government may authorize or recognize the marriage of two persons of the same sex. Thus, Idaho’s Marriage Laws prevent same-sex couples, whether married or unmarried, from obtaining the marital status and benefits afforded to opposite-sex couples. B. The Plaintiffs
Plaintiffs are four same-sex couples. The Married Plaintiffs, Susan Latta and Traci Ehlers, and Lori Watsen and Sharene Watsen, legally married in other states and wish to have their marriages recognized in Idaho. The Unmarried Plaintiffs, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson, desire to be married in Idaho, but the County Recorder of Ada County, Defendant Rich, denied their marriage license applications. The following undisputed facts are contained in the pleadings and in Plaintiffs’ declarations.
1. Susan Latta and Traci Ehlers Susan Latta has lived in Boise for 22 years. Traci Ehlers has resided in Idaho’s Treasure Valley for 38 years. Latta is a professional artist and adjunct professor at Boise State University, and Ehlers owns a small business in Boise. They met at a book club and began dating in 2003. Ehlers proposed to Latta in 2004, and, in 2006, the couple celebrated “a meaningful but not legally binding wedding ceremony in Boise.” (Latta Dec. ¶ 11, Dkt. 48.) In 2008, the couple legally married in California soon after that state
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began allowing same-sex marriages. Neither Latta nor Ehlers had been married before, but they decided to marry because they wanted to spend the rest of their lives together. Although Ehlers never thought she would have children, she is now step-mother to Latta’s children and step-grandmother to Latta’s grandchildren.
Both Latta and Ehlers attest that Idaho’s refusal to recognize their marriage complicates and demeans their lives. They worry about the ramifications of aging without a legally recognized marriage, a reality that implicates taxes, inheritance, Social Security benefits, hospital visitation rights, and medical decision-making. Although they can file a “married” tax return for federal purposes, Idaho law requires them to file “single” state tax returns. Latta and Ehlers plan to seek professional assistance to prepare their state tax returns. The couple also is unsure about the status of property they acquired during their marriage because a quitclaim deed purporting to grant each of them title to community property with right of survivorship may not be enforceable absent a legally recognized marriage. Ehlers explains, “it is painful that the state we love, the place that we have made our home, where we vote and pay taxes, where we have our businesses, where we participate, and volunteer, and donate, treats us as second-class citizens.” (Ehlers Dec. ¶ 18, Dkt. 49.)
2. Lori Watsen and Sharene Watsen Lori and Sharene Watsen reside in Boise, where Sharene works as a physician assistant and Lori works as a social worker. Friends introduced the Watsens in 2009, and the two have been together as a couple since their first date. In 2011, the couple married in a small legal ceremony in New York. They held a larger celebration of their marriage
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at their church in Boise during the summer of 2012. The Watsens both describe their marriage as an important symbol of their love for and commitment to each other, not least because they both grew up in deeply religious families that value the institution greatly.
Also in 2012, the Watsens decided to start a family. Their son was conceived by artificial insemination in September 2012, and Sharene gave birth in May 2013. Although they requested that Lori be listed as their son’s parent, his birth certificate lists only Sharene. In the summer of 2013, the Watsens hired an attorney to assist Lori’s adoption of their son. An Ada County magistrate judge dismissed the adoption petition and, despite their valid New York marriage, deemed Lori to be Sharene’s unmarried “cohabitating, committed partner” without legal standing to adopt Sharene’s son. (S. Watsen Dec. Ex. C., Dkt. 51-3 at 5.) The couple felt demeaned by the magistrate judge’s decision, and Lori plans to again petition for adoption.4
Like Latta and Ehlers, the Watsens are concerned about the many complications Idaho’s Marriage Laws add to their family life. Lori Watsen must create a new medical power of attorney every six months, for, without one, she cannot consent to medical treatment for her son. In addition, the Watsens have the same tax and community property problems as Latta and Ehlers. Above all, Lori Watsen wants their “son to have

4

After the dismissal of Lori Watsen’s adoption petition, the Idaho Supreme Court held

“Idaho’s adoption statutes plainly allow” a woman to adopt her same-sex partner’s children. In

re Adoption of Doe, —P.3d—, 2014 WL 527144, at *6 (Idaho Feb. 10, 2014). The court made

clear it would not “imply . . . restrictions based on Idaho’s marital statutes” and that “sexual

orientation was wholly irrelevant to our analysis.” Id.

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the same pride in us, as his parents, that I feel for my parents, who have been married for 50 years.” (L. Watsen Dec. ¶ 36, Dkt. 50.)
3. Shelia Robertson and Andrea Altmayer Shelia Robertson and Andrea Altmayer live together in Boise. Altmayer works as a massage therapist. Robertson, who has advanced training in communicative disorders, teaches deaf students at a local school district and works part-time as a video relay interpreter. The two have been in a committed, exclusive relationship since friends introduced them 16 years ago. If Idaho allowed same-sex marriages, they would have married years ago. Although the couple considered marrying outside Idaho, they did not wish to incur the expense of traveling away from their family and friends only to return home with a marriage not recognized in Idaho. Even so, Robertson and Altmayer decided to start a family. Altmayer became pregnant through artificial insemination and gave birth to their son in 2009. Similar to the Watsens’ experience, Robertson and Altmayer completed birth certificate forms identifying Altmayer as the mother and Robertson as a parent. But the birth certificate lists only Altmayer as their son’s parent. The lack of a legally recognized parental relationship between Robertson and her son means she cannot consent to medical treatment for him and otherwise prevents the couple from equally sharing numerous parental responsibilities. Robertson and Altmayer worry their son will not have the security and stability afforded by two legal parents. Both are deeply concerned their
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son will grow up believing there is something wrong with his family because his parents cannot marry.
On November 6, 2013, Robertson and Altmayer submitted a marriage license application to the Ada County Recorder. The application was denied only because Robertson and Altmayer are both women. Demeaned but undeterred by this experience, the couple wishes to be married “so that other people understand that we are a family, in a permanent life-long relationship.” (S. Robertson Dec. ¶ 15, Dkt. 53.)
4. Amber Beierle and Rachael Robertson Amber Beierle and Rachael Robertson both grew up, reside, and wish to marry in Idaho. Beierle holds a M.S. in Applied Historical Research and works for the Idaho State Historical Society. Roberston is an Army veteran, having served a tour of duty in Iraq from June 2004 to November 2005. During her military service, Robertson earned the Army Combat Medal and the Soldier Good Conduct Medal. She was honorably discharged from the Army in 2008 and now manages a warehouse in Boise. Beierle and Robertson met in 2006 and began dating in 2010. The two have been in a committed, exclusive relationship since Valentine’s Day, 2011. They bought a house together in December of 2012. The couple plans to raise children, but they worry their children will grow up thinking something is wrong with their family because Beierle and Robertson cannot marry. Although they considered marrying in another state, they wish to be married in their home state of Idaho. And, even if they were married in another state, Idaho law would prevent them from being buried together at the Idaho Veterans Cemetery because they are a same-sex couple.
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Beierle and Robertson also applied for a marriage license on November 6, 2013. Although they otherwise qualify for a marriage license, the Ada County Recorder’s Office denied the application because they are both women. This experience demeaned Beierle and Robertson. They “want to have the same freedom as opposite-sex couples to marry the person [they] love and to share the benefits and responsibilities of marriage and in the recognition and protections of marriage.” (Beierle Dec. ¶ 19, Dkt. 54.) C. The Defendants
Defendant C.L. “Butch” Otter is the Governor of the State of Idaho. He is sued in his official capacity. As Governor, Defendant Otter is responsible for upholding and ensuring compliance with the Idaho Constitution and statutes enacted by the Legislature, including the marriage laws at issue in this case. See Idaho Const. Art. IV, § 5 (“The supreme executive power of the state is vested in the governor, who shall see that the laws are faithfully executed.”). Defenda nt Christopher Rich is Recorder of Ada County, Idaho. He is sued in his official capacity. As the Ada County Recorder, Defendant Rich has “the authority to issue marriage licenses to any party applying for the same who may be entitled under the laws of this state to contract matrimony.” Idaho Code § 32-401. On November 6, 2013, an authorized deputy of Defendant Rich denied the Unmarried Plaintiffs’ applications for marriage licenses because, as same-sex couples, they were not entitled to contract matrimony in Idaho.
Early in this case, the State of Idaho moved and was permitted to intervene as a defendant. (Dkt. 38.) The State, by and through the Idaho Attorney General, asserts a
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strong, independent interest in defending Idaho’s laws against constitutional attack. Throughout this litigation, the State has joined in Recorder Rich’s motions and briefing. D. Requested Relief
Plaintiffs bring suit under 42 U.S.C. § 1983, alleging that Governor Otter and Recorder Rich acted in their official capacities and under color of law to deprive them of rights protected by the Fourteenth Amendment to the United States Constitution.5 They request a declaration that all Idaho laws prohibiting same-sex marriage or barring recognition of valid out-of-state same-sex marriages violate the due process and equal protection guarantees in the Fourteenth Amendment. They also request a permanent injunction against enforcement of any Idaho law that would prohibit or withhold recognition of same-sex marriages. These claims constitute a facial constitutional attack on the validity of any Idaho law that prohibits same-sex marriage in Idaho or withholds recognition of same-sex marriages validly contracted in another state.6
III. STANDARD OF REVIEW The parties seek judicial resolution of this case via three motions: Defendant Recorder Rich and Defendant-Intervenor Idaho’s motion to dismiss for failure to state a

5

There is no dispute that Plaintiffs have standing to bring this lawsuit or, considering the

relief requested, that Defendants are proper parties.

6

The undersigned United States Magistrate Judge has jurisdiction over this matter by

virtue of all parties’ express written consent. 28 U.S.C. § 636(c); see also D. Idaho Loc. Civ. R.

72.1(a)(1) (authorization to decide civil cases with the parties’ consent), (Dkt. 40) (consents).

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claim (Dkt. 43)7, Plaintiffs’ motion for summary judgment (Dkt. 45), and Defendant Governor Otter’s motion for summary judgment (Dkt. 57). Typically, motions to dismiss are evaluated under different standards than motions for summary judgment. But here, the motion to dismiss must be treated as a motion for summary judgment.
Recorder Rich and Defendant-Intervenor Idaho’s motion to dismiss attaches and references numerous documents outside the pleadings. These documents include five articles on marriage and parenting. (Dkt. 30-6 to -10.) The parties vigorously dispute the meaning and import of the sociological literature on these points. Because the Court considered the literature submitted with the motion to dismiss, the motion must be treated as a motion for summary judgment. Fed. R. Civ. P. 12(d); see also Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 921-22 (9th Cir. 2004) (finding a represented party’s submission of extra-pleading materials justified treating motion to dismiss as motion for summary judgment). The Court will evaluate all pending motions under the summary judgment standard.
A party is entitled to 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). When parties submit cross-motions for summary judgment, “the court must review the evidence submitted in support of each cross-motion” and decide each on its

7

Recorder Rich first moved to dismiss this case on January 9, 2014. (Dkt. 30.) After the

Court permitted the State to intervene, the State filed a motion to dismiss that adopted all

arguments made in Recorder Rich’s initial motion. (Dkt. 41.) Plaintiffs thereafter filed an

Amended Complaint, (Dkt. 42), which Recorder Rich and the State jointly moved to dismiss

based on the reasons stated in their earlier motions to dismiss. (Dkt. 43.)

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own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
IV. ANALYSI S The Court has considered the parties’ briefs and supporting materials, as well as oral arguments presented during a May 5, 2014 hearing on all dispositive motions. As a preliminary matter, the Court finds the Supreme Court’s summary decision in Baker v. Nelson, 409 U.S. 810 (1972), does not prevent lower federal courts from deciding the constitutional issues in this case. With respect to Plaintiffs’ due process claim, Idaho’s Marriage Laws are subject to strict scrutiny because they infringe upon Plaintiffs’ fundamental right to marry. Under the Equal Protection Clause, Idaho’s Marriage Laws are subject to heightened scrutiny because they intentionally discriminate on the basis of sexual orientation. The Court finds that Idaho’s Marriage Laws do not survive any applicable level of constitutional scrutiny and therefore violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The reasons for these findings are discussed below. A. Baker v. Nelson Defendants initially argue that Baker v. Nelson is binding precedent that shields Idaho’s Marriage Laws from constitutional attack. Baker was an appeal to the United States Supreme Court from a decision of the Supreme Court of Minnesota. The Minnesota court held that neither Minnesota law nor the United States Constitution required the issuance of marriage licenses to a same-sex couple. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). Based on a brief
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review of then-existing due process and equal protection jurisprudence, the Minnesota court rejected the plaintiffs’ due process and equal protection claims. On appeal, the Supreme Court summarily dismissed the case “for want of a substantial federal question.” Baker, 409 U.S. at 810.
Summary dismissals have real but narrow precedential value. “A summary disposition affirms only the judgment of the court below, and no more may be read into [the] action than was essential to sustain the judgment.” Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83 (1979) (citations omitted). The dismissal “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided” in the action. Mandel v. Bradley, 432 U.S. 173, 176 (1977). When a case raises the precise issue addressed by a summary dismissal, “the lower courts are bound . . . until such time as the [Supreme] Court informs them that they are not.” Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (quotation omitted). Defendants correctly note that Baker necessarily decided the precise issues presented in this case and that the Supreme Court has not expressly overruled Baker in the four decades after it was summarily decided.
Although Baker speaks to the precise issues presented in this case, there is good reason to find its guidance no longer binding. The Supreme Court has instructed that “inferior federal courts had best adhere to the view that if the Court has branded a question as insubstantial, it remains so except when doctrinal developments indicate otherwise.” Hicks, 422 U.S. at 344 (emphasis added). Defendants make forceful arguments about the binding nature of summary dismissals, but they overlook the
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doctrinal developments exception stated in Hicks. In fact, Defendants cite only one case

that analyzes the doctrinal developments since Baker, and that case was decided before

Windsor. See Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1085-86 (D. Haw. 2012)

(concluding pre-Windsor doctrinal developments did not overcome Baker). The Supreme

Court’s due process and equal protection jurisprudence has developed significantly in the

four decades after Baker, and, in last year’s Windsor decision, the Court dramatically

changed tone with regard to laws that withhold marriage benefits from same-sex couples.

In 1972, the Supreme Court had not recognized gender as a quasi-suspect classification. See Frontiero v. Richardson, 411 U.S. 677 (1973).8 Nor had the Court

applied heightened equal protection scrutiny to gender-based classifications. See Craig v.

Boren, 429 U.S. 190 (1976). It was not until 1996 that the Supreme Court recognized

laws based on a “‘bare . . . desire to harm’” homosexuals were not rationally related to

any legitimate government interest. Romer v. Evans, 517 U.S. 620 (1996) (quoting U.S.

Dept. of Agric. v. Moreno, 413 U.S. 528 (1973)). Since Baker, the Supreme Court’s equal

protection jurisprudence has expanded, scrutinizing both gender and sexual orientation

discrimination in more exacting ways.

In 1972, states could constitutionally criminalize private, consensual sex between

adults of the same sex based on nothing more than moral disapproval of the homosexual

8

November 22, 1971—less than a year before the summary decision in Baker—was the

first time the Supreme Court struck down a law because it unconstitutionally discriminated on

the basis of gender. Reed v. Reed, 404 U.S. 71 (1971). Overruling the Idaho Supreme Court,

Reed held that Idaho’s statutory preference for male estate administrators was “the very kind of

arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth

Amendment. . . .” Id. at 76.

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lifestyle. See Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). But, just 11 years ago, the Court reversed course and held the government could not lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.” Lawrence, 539 U.S. at 574. Lawrence reaffirmed that the Due Process Clause protects fundamental rights of personhood, definitively establishing that individuals do not forfeit their rights because of their sexual orientation. Id. At the very least, Romer and Lawrence strongly suggest that stateapproved discrimination based on sexual orientation is now a substantial federal question.
Although courts formerly were reluctant to find these developments sufficient to overcome Baker, e.g., Jackson, 884 F.Supp.2d at 1085-86, much has changed in just the last year. In June of 2013, the Supreme Court struck down the federal man-woman definition of marriage because, when applied to legally married same-sex couples, it “demean[ed] the couple, whose moral and sexual choices the Constitution protects.” Windsor, 133 S. Ct. at 2694. In doing so, the Supreme Court affirmed the decision of the United States Court of Appeals for the Second Circuit, which expressly held that Baker did not foreclose review of the federal marriage definition. Windsor v. United States, 699 F.3d 169, 178-80 (2d Cir. 2012) (“Even if Baker might have had resonance . . . in 1971, it does not today.”). Also last summer, the Supreme Court declined to review a decision invalidating California’s voter-approved man-woman marriage definition. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). The Supreme Court dismissed the appeal not because Baker rendered the question insubstantial, but because the law’s supporters lacked standing to defend it after the State of California decided not to. These are doctrinal
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developments sufficient to overcome the narrow precedential effect of a summary dismissal.
Since Windsor, no federal court has ruled to the contrary. In fact, every court to consider Baker in the context of a post-Windsor challenge to laws against same-sex marriage has found that doctrinal developments since 1972 provide ample reason to reach the merits. Kitchen v. Herbert, 961 F.Supp.2d 1181, 1194-95 (D. Utah 2013); Bishop v. U.S., 962 F.Supp.2d 1252 (N.D. Okla. 2014); Bostic v. Rainey, 970 F.Supp.2d 456, 46870 (E.D. Va. 2014); McGee v. Cole, —F.Supp.2d—, 2014 WL 321122 at *8-10 (S.D. W.Va. Jan. 29, 2014); Bourke v. Beshear, —F.Supp.2d—, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); De Leon v. Perry, —F.Supp.2d—, 2014 WL 715741, at *8-10 (W.D. Tex. Feb. 26, 2014); DeBoer v. Snyder, —F.Supp.2d—, 2014 WL 1100794, at * 15 n.6 (E.D. Mich. Mar. 21, 2014). Consistent with the findings of its sister courts, the Court concludes that Baker is not controlling and does not bar review of Plaintiffs’ claims. B. Due Process
The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees fair process and places substantive limits on the States’ authority to constrain individual liberty. Many of our most cherished liberties originate in the Bill of Rights—among them the freedoms of speech, press, and religion; the right to be free from unreasonable searches and seizures; and the right to just compensation when the government takes private property. Initially, the Bill of Rights guarded against only actions by the federal government. But, upon the adoption of the Fourteenth Amendment, a more comprehensive protection came into force: “No State shall make or enforce any
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law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive a person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Now, most of the Bill of Rights applies to the states by virtue of the Fourteenth Amendment. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3034-36, 3050 (2010) (chronicling “selective incorporation” of the Bill of Rights and incorporating the Second Amendment).
The Supreme Court also has recognized that the liberty guaranteed by the Fourteenth Amendment extends beyond the Bill of Rights to “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 the compulsion of the State.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
An individual’s protected liberties include certain fundamental rights of personhood. These rights center on the most significant decisions of a lifetime—whom to marry, whether to have children, and how to raise and educate children. Lawrence, 539 U.S. at 574. These choices are protected because they implicate “associational rights . . . ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)).
Ordinarily, laws do not offend the Due Process Clause when they are rationally related to a legitimate government interest. Washington v. Glucksburg, 521 U.S. 702, 722
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(1997). But laws that implicate fundamental rights are subject to strict scrutiny, surviving only if narrowly tailored to a compelling government interest. Reno v. Flores, 507 U.S. 292, 301-02 (1993). The essential issue for due process purposes is whether Idaho’s Marriage Laws infringe on Plaintiffs’ fundamental rights.
The decisions of the United States Supreme Court “confirm that the right to marry is of fundamental importance for all individuals.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978). “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1, 11 (1967). “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
Against this background, Plaintiffs wish to exercise their fundamental right to marry. Defendants acknowledge that the fundamental right to marry exists, but they argue it does not extend to same-sex couples. Rather, Defendants contend Plaintiffs seek recognition of a new fundamental right, the right to same-sex marriage.
Defendants appropriately note that the Supreme Court has explicitly cautioned against finding new fundamental rights. “[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksburg, 521 U.S. at 720-21 (quotations and citations omitted). A “careful description” of the newly asserted liberty interest also is necessary. Id. at 721. Moreover, the “Nation’s history, legal
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traditions, and practices . . . provide the crucial guideposts for responsible decisionmaking, that direct and restrain [the Court’s] exposition of the Due Process Clause.” Id. (quotation and citation omitted).
The Glucksburg decision is instructive on how the Supreme Court evaluates new fundamental rights. There, the plaintiffs asserted the State of Washington’s ban on causing or aiding another person’s suicide violated a constitutionally protected right to choose the manner of one’s own death. The Supreme Court surveyed the history of the law regarding suicide, concluding “[t]he history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it.” Id. at 728. Given this largely unbroken tradition, the Court declined to recognize a new constitutionally protected right to suicide or assisted suicide. The Supreme Court then upheld Washington’s assisted suicide ban because the ban rationally related to Washington’s legitimate interest in preserving human life.
The restraint exercised in Glucksburg is not warranted here. Although marriage is not mentioned in the Bill of Rights, the Supreme Court has uniformly treated marriage as an established fundamental right. A long line of cases recognize marriage as a fundamental right, variously describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399 (1923), of privacy, Griswold, 381 U.S. at 486, and of association, M.L.B., 519 U.S. at 116. This exalted status among personal rights is based on the recognition that marriage “involv[es] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy. . . .” Casey, 505 U.S. at 851.
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In fact, Glucksburg cites the right to marry as one of the well-established fundamental rights. 521 U.S. at 720.
Because the right to marry is fundamental, the Supreme Court has repeatedly invalidated laws that infringe upon it. In the pathmarking case of Loving v. Virginia, our Nation’s highest court found unconstitutional a Virginia statute banning interracial marriages. 388 U.S. 1 (1967). Similar to the Idaho Marriage Laws challenged here, Virginia’s anti-miscegenation laws prohibited the issuance of marriage licenses to interracial couples and further forbade attempts to evade the ban by marrying out-ofstate. Loving, 388 U.S. at 4-6. Violation of these Virginia’s law was a criminal offense punishable by imprisonment for up to five years. Id. at 5. Regardless of the historical precedent for such laws, the Supreme Court made clear that “the freedom to marry or not marry[] a person of another race resides with the individual and cannot be infringed by the State.” Id. at 12.
The Supreme Court reaffirmed the fundamental and individual character of the right to marry in Zablocki v. Redhail. There, the Court reviewed a Wisconsin law that required residents to seek court permission to marry if a Wisconsin resident had children not in the resident’s custody. Zablocki, 434 U.S. at 375. Under that law, permission to marry would be granted only if the resident could show full compliance with any childsupport obligations and further demonstrate children covered by a support order were “not then and [were] not likely thereafter to become public charges.” Id. (quoting Wis. Stat. § 245.10 (1973)). Despite the State’s interest in child welfare, the Supreme Court invalidated the statute because it “unnecessarily impinge[d] on the right to marry” in a
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context where Wisconsin had “numerous other means” for advancing its interest. Id. at 388-89.
Next, in 1987, the Supreme Court struck down a Missouri prison regulation that restricted inmates’ right to marry. Turner v. Safley, 482 U.S. 78 (1987). Under the regulation, an inmate could marry only with approval from the superintendent of prisons, permission that would be granted under “compelling” circumstances such as pregnancy or the birth of an illegitimate child. Id. at 82. While prisoners are subject to a variety of restrictions on their constitutional liberties, the Court found that “[m]any important attributes of marriage remain, however, after taking into account the limitations imposed by prison life.” Id. at 95. Recognizing the emotional, public, and spiritual significance of marriage, as well as the many government benefits that flow from marital status, the Court struck down the prison regulation. According to the Supreme Court, “these incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate penological objectives.” Id. at 95-96.
More recently, the Supreme Court confirmed that gay and lesbian individuals do not forfeit their constitutional liberties simply because of their sexual orientation. Lawrence, 539 U.S. 558. The Court observed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Id. at 574. Emphasizing that these are personal rights, the Court concluded “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual
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persons do.” Id. (emphasis added). And, less than one year ago, the Supreme Court struck down the federal Defense of Marriage Act’s man-woman definition of marriage because it amounted to unconstitutional “interference with the equal dignity of same-sex marriages” recognized by some states. Windsor, 133 S. Ct. at 2693. The message of these cases is unmistakable—all individuals have a fundamental right to marry.
Defendants argue these cases do not apply here because the Supreme Court has recognized a fundamental right to only heterosexual marriage. Relying on Glucksburg, the Defendants characterize this case as one involving the “right to same-sex marriage,” a right lacking both historical precedent and constitutional protection. Defendants’ argument suffers from three critical flaws.
This “new right” argument attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms. Loving was no more about the “right to interracial marriage” than Turner was about the “prisoner’s right to marry” or Zablocki was about the “dead-beat dad’s right to marry.” Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a subright tied to the facts of the case. While Glucksburg demands that new rights be carefully described and deeply rooted, the cases above demonstrate that the Supreme Court has long recognized an unembellished right to marry.
On the other hand, the holding in Glucksburg followed directly from the unbroken pattern of state laws and legal traditions disapproving suicide and assisted suicide. 521 U.S. at 710-11 (“Indeed, opposition to and condemnation of suicide—and, therefore, assisting suicide—are consistent and enduring themes of our philosophical, legal, and
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cultural heritages.”). Given that context, it was a truly novel proposition to say that the concept of “liberty” substantively protects a person’s freedom to end his or her life. Finding the policy of condemning and discouraging suicide both deeply rooted and nearly universal in contemporary society, the Court declined to recognize a new fundamental right. Id. at 728.
The context here is dramatically different. Far from a uniform pattern of laws rejecting the practice, a fast-growing number of states now recognize that same-sex and opposite-sex marriages are equal. And, while Glucksburg makes much of the consistent legal, medical, and social policies against suicide, the Court is not aware of a similarly pervasive policy against marriage. To the contrary, the Defendants make abundantly clear that marriage is a life-affirming institution—something to be encouraged because it provides stability not only for couples, but also for children.
Finally, and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. See Lawrence, 539 U.S. at 574. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State.9 Defendants offer no other answer.

9

“No credible evidence supports a finding that an individual may, through conscious

decision, therapeutic intervention or any other method, change his or her sexual orientation.”

Perry v. Schwarzenegger, 704 F.Supp.2d 921, 966 (N.D. Cal. 2010); see also Hernandez-Montiel

(Continued)

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In their effort to avoid the question, Defendants commit the same analytical mistake as the majority in Bowers v. Hardwick, the decision that declined to “announce a fundamental right to engage in homosexual sodomy.” 478 U.S. 186, 191 (1986), overruled by Lawrence, 539 U.S. at 577. The crucial mistake in Bowers was that the majority narrowed and thus “fail[ed] to appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at 567. For that reason, the Supreme Court in Lawrence concluded “Bowers was not correct when it was decided, and it is not correct today.” Id. at 577. Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights to make intimate personal choices as heterosexual individuals enjoy, but that judicial attempts to parse those rights out of existence will be met with a harsh rebuke.
The Supreme Court’s marriage cases recognize an individual’s fundamental right to marry. The right transcends one’s race, confinement to prison, or ability to support children. Lawrence unequivocally cements marriage as among the constitutionally protected liberties shared by homosexual and heterosexual persons alike. The teaching of these cases is that the fundamental right to marry cannot be narrowed in the manner Defendants urge. Idaho’s Marriage Laws render the Plaintiff couples legal strangers, stripping them of the choice to marry or remain married in the state they call home.
v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (reviewing literature on the essential link between sexual and personal identity).
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Therefore, Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry.10 C. Equal Protection
Plaintiffs also claim Idaho’s Marriage Laws violate the Equal Protection Clause of the Fourteenth Amendment. That clause “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (quoting U.S. Const., amend XIV., § 1). The equal protection guarantee is in tension with the reality that laws almost inevitably draw lines between groups of people, advantaging some and disadvantaging others. Romer v. Evans, 517 U.S. 620, 631 (1996). The Supreme Court has developed tiers of judicial scrutiny in an effort to reconcile this practical reality with the constitutional principle. The level of scrutiny depends on the characteristics of the disadvantaged group or the rights implicated by the classification.
A law that neither targets a suspect class nor burdens a fundamental right is subject to rational basis scrutiny. Heller v Doe, 509 U.S. 312, 319-21 (1993). The Court in such cases presumes the law is valid unless the challenger can show the difference in treatment bears no rational relation to a conceivable government interest. Id. “A classification does not fail rational-basis review because it ‘is not made with
10 For this reason, Idaho’s Marriage Laws are subject to strict due process and equal protection scrutiny. See Zablocki, 434 U.S. at 388. But the Laws do not survive under the lower level of equal protection scrutiny applied in Part IV.D below. Consequently, the Laws would fail strict scrutiny.
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mathematical nicety or because in practice it results in some inequality.’” Id. at 321 (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)). But, even under this most deferential standard, the “State may not rely on a classification whose relationship to the asserted goal is so attenuated as to render the decision arbitrary or irrational.” Cleburne, 473 U.S. at 446. For this reason, courts “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632; see also Heller, 509 U.S. at 321 (explaining the classification must “find some footing in the realities of the subject addressed by the legislation”).
Strict scrutiny lies at the other end of the spectrum. This level of scrutiny applies when a legislative classification “impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976). Such classifications are presumed unconstitutional and will survive strict scrutiny only when the government can show the law is narrowly tailored to a compelling governmental interest. See Zablocki, 434 U.S. at 388.
“Between the 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 v. Jeter, 486 U.S. 456, 461 (1988). These classifications are considered “quasi-suspect,” and survive heightened constitutional scrutiny only if the State shows the classification is “substantially related to an important governmental objective.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982). Discrimination against a quasi-suspect class, such as women, must be supported by an
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“exceedingly persuasive justification” and “not hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996). The purpose of this heightened level of scrutiny is to ensure quasi-suspect classifications do not perpetuate unfounded stereotypes or second-class treatment. Id. at 534.
The Court’s principal tasks here are to determine the form of discrimination at issue and next identify and apply the appropriate level of scrutiny.
1. Form of Discrimination Plaintiffs argue that Idaho’s Marriage Laws discriminate against individuals on the basis of sex and sexual orientation. The Defendants counter that Idaho’s Marriage Laws do not prefer one sex over the other, nor do they target gay and lesbian persons. A person’s gender and sexual orientation are two sides of the same coin. As one court aptly observed, “sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation.” Perry v. Schwarzenegger, 704 F.Supp.2d 921, 996 (N.D. Cal. 2010). However, the Supreme Court has not equated sexual orientation discrimination and sex discrimination despite several opportunities to do so. See Romer, 517 U.S. at 635 (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”); Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (“[T]he conduct targeted by this law is conduct that is closely correlated with being homosexual.”); Windsor, 133 S. Ct. at 2695 (“The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State.”). Considering the Supreme
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Court’s treatment of this issue, this Court finds that sex discrimination and sexual orientation discrimination are “distinct phenomena.” In re Marriage Cases, 183 P.3d 384, 439 (Cal. 2008); see also Bishop v. U.S., 962 F.Supp.2d 1252 (N.D. Okla. 2014) (“Common sense dictates that the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened scrutiny on that basis.”).
Idaho’s Marriage Laws allow heterosexuals, but not homosexuals, to marry and thus clearly discriminate on the basis of sexual orientation. This distinction does not prefer one gender over the other—two men have no more right to marry under Idaho law than two women. In other words, Idaho’s Marriage Laws are facially gender neutral and there is no evidence that they were motivated by a gender discriminatory purpose. See In re Kandu, 315 B.R. 123, 143 (Bankr. W.D. Wash. 2004) (“The test to evaluate whether a facially gender-neutral statute discriminates on the basis of sex is whether the law can be traced to a discriminatory purpose.”) (internal quotations omitted).
2. Level of Scrutiny Plaintiffs advance two reasons for applying heightened scrutiny to Idaho’s Marriage Laws. First, they argue sexual orientation is subject to heightened scrutiny under recent precedent of the United States Court of Appeals for the Ninth Circuit. Second, they claim that classifications based on sexual orientation are constitutionally suspect.
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a. Ninth Circuit Precedent Plaintiffs first argue that heightened scrutiny applies to sexual orientation discrimination by virtue of the Ninth Circuit’s recent decision in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir. 2014). The Defendants claim SmithKline is distinguishable on its facts. The State and Recorder Rich argue SmithKline is a case about discriminatory jury selection and, as such, its holding is limited to cases involving intentional sexual orientation discrimination based on stereotypes. In a similar vein, Governor Otter claims SmithKline is inapplicable because Idaho’s Marriage Laws are not motivated by animus toward homosexuals. Defendants misread the case. SmithKline involved a constitutional challenge to a preemptory strike of a prospective juror during jury selection for a trial between two pharmaceutical companies, SmithKline Beecham and Abbott Laboratories. The parties’ dispute centered on the pricing of HIV medications, which is “a subject of considerable controversy in the gay community.” Id. at 474. During the jury selection process, Juror B was the only selfidentified gay member of the jury pool. Immediately after Abbott exercised its first peremptory strike against Juror B, SmithKline’s counsel raised a Batson challenge that the trial judge denied.11 The Ninth Circuit concluded that Abbott’s challenge amounted
11 In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court found that the Equal Protection Clause limits the privilege of exercising peremptory strikes when selecting a jury. Although Batson considered strikes based on race, its underlying constitutional principle now extends to classes of persons subject to intermediate or strict equal protection scrutiny. J.E.B. v. Alabama, 511 U.S. 127, 143 (1994) (“Parties may . . . exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.”).
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to purposeful sexual orientation discrimination before answering the dispositive question: Whether classifications based on sexual orientation are subject to heightened scrutiny.
To answer this question, the Ninth Circuit looked to the Supreme Court’s equal protection analysis in Windsor. Although Windsor does not announce the level of scrutiny, the SmithKline court considered what the Supreme Court “actually did” and determined the Supreme Court’s analysis was inconsistent with pure rational basis review. Id. at 481. SmithKline’s examination of Windsor is authoritative and binding upon this Court.
According to SmithKline, Windsor’s constitutional analysis exhibits none of the hallmarks of rational basis review. First, the Supreme Court ignored the hypothetical justifications for the Defense of Marriage Act and instead carefully considered the law’s actual purpose. Id. at 481-82 (citing Windsor, 133 S. Ct. at 2693-94). Second, “the critical part of Windsor begins by demanding that Congress’s purpose ‘justify disparate treatment of the group.’” Id. at 482 (quoting Windsor, 133 S. Ct. at 2693). Wholly inconsistent with rational basis review, this demand neither defers to legislative choices nor presumes a law is constitutional. Compare Williamson v. Lee Optical, 348 U.S. 483, 487 (1955) (“[I]t is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”) with Windsor, 133 S. Ct. at 2696 (“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”). Concluding its analysis, the Ninth Circuit held that “Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual
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purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.” SmithKline, 740 F.3d at 483.
This holding is unqualified and logically preceded the court’s analysis of the Batson challenge. Indeed, the Batson analysis otherwise would have been foreclosed because the Ninth Circuit’s pre-Windsor equal protection precedent held that sexual orientation discrimination is subject to rational basis review. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990), abrogation recognized by SmithKline, 740 F.3d at 483. Reexamining its precedent in light of Windsor, the SmithKline court found that “earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor.” 740 F.3d at 483. Only after the Ninth Circuit found Juror B belonged to a group subject to heightened scrutiny did it then proceed with its Batson analysis. In this Court’s view, SmithKline establishes a broadly applicable equal protection principle that is not limited to the jury selection context.
Also, contrary to Defendants’ contentions, SmithKline does not limit the application of heightened scrutiny to instances of proven animus or irrational stereotyping. SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes, but it does so in the context of the Batson analysis—not in the discussion about Windsor. Id. at 484-86. With respect to Windsor, the court’s holding is undeniably broad: “Windsor’s heightened scrutiny applies to classifications based on sexual orientation.” Id. at 483. Had the Ninth Circuit intended to limit its holding to cases
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involving animus or irrational stereotyping, it easily could have done so. Instead, it found Windsor to be “dispositive of the question of the appropriate level of scrutiny in this case,” a case that fits into the broader category of “classifications based on sexual orientation.” Id. at 480. Just as the Ninth Circuit was “bound by [Windsor’s] controlling, higher authority” when deciding SmithKline, this Court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws.12
b. Suspect class Apart from SmithKline, Plaintiffs also contend Idaho’s Marriage Laws are subject to heightened scrutiny because classifications based on sexual orientation are constitutionally suspect. The Court need not dissect this argument because the Supreme Court has accepted it by implication. If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have applied rational basis scrutiny in Windsor. But, as recognized in SmithKline, the Supreme Court applied heightened scrutiny. Indeed, the Supreme Court affirmed the Second Circuit without questioning (or even discussing) the lower court’s express holding: A) hom osexuals as a gr oup have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) hom osexuals are a discernible group w ith nonobvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
12 Currently, Nevada’s laws prohibiting same-sex marriage are before the Ninth Circuit and Oregon’s are before the District of Oregon. The Attorneys General of Nevada and Oregon both recently concluded that heightened scrutiny under SmithKline eviscerates the legal bases for their defenses. (Dkt. 77-2 at 5; Dkt. 77-3 at 22.) Consequently, both Attorneys General have refused to defend their state’s marriage laws.
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Windsor v. United States, 699 F.3d 169, 181-82 (2d Cir. 2012), aff’d United States v. Windsor, 133 S. Ct. 2675 (2013). The Second Circuit’s holding was both approved and essential to the scrutiny the Supreme Court applied in Windsor. Had the Supreme Court disagreed with the Second Circuit, it would not have applied heightened scrutiny. It is not necessary to repeat the Second Circuit’s analysis, for that analysis is implicit in both Windsor and SmithKline. D. Idaho’s Marriage Laws Fail Constitutional Scrutiny
Because Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry, the Laws are subject to strict due process and equal protection scrutiny. But SmithKline directs the Court to apply heightened equal protection scrutiny to laws that discriminate on the basis of sexual orientation. Idaho’s Marriage Laws do not withstand this heightened scrutiny.
At a minimum, the Court must examine Idaho’s Marriage Laws “and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.” SmithKline, 740 F.3d at 483. Based on Windsor, and as explained in SmithKline, four principles guide the Court’s equal protection analysis. The Court (1) looks to the Defendants to justify Idaho’s Marriage Laws, (2) must consider the Laws’ actual purposes, (3) need not accept hypothetical, post hoc justifications for the Laws, and (4) must decide whether the Defendants’ proffered justifications overcome the injury and indignity inflicted on Plaintiffs and others like them. See id. at 481-83.
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These principles most closely correspond to the intermediate scrutiny test applied to quasi-suspect classifications based on gender and illegitimacy. See Windsor v. United States, 699 F.3d 169, 185-88 (2d Cir. 2012) (applying intermediate scrutiny). In those cases “the burden of justification is demanding and it rests entirely on the State.” United States v. Virginia, 518 U.S. 515, 533 (1996). While intermediate scrutiny permits classifications designed to remedy economic injuries or promote equality, the test focuses on “differential treatment” and “denial of opportunity” to ensure that discriminatory laws do not “create or perpetuate the legal, social, and economic inferiority” of the affected class. Id. at 533-34.
1. The Actual Purpose of Idaho’s Marriage Laws The Court begins its inquiry into the actual purpose of Idaho’s Marriage Laws by examining their text. See Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 926 (9th Cir. 2004). “The plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989). The meaning of Idaho’s Marriage Laws could not be plainer. The only recognized domestic legal union in Idaho is a “marriage between a man and a woman.” Idaho Const. Art. III, § 28. A marriage can be licensed and solemnized only if it is “a civil contract between a man and a woman. . . .” Idaho Code § 32-201. All marriages contracted outside of Idaho are valid in Idaho except marriages that violate Idaho’s public policy. Id. § 32-209. The statutory list of marriages that violate Idaho’s public policy is nonexclusive, but it specifically identifies only two categories—“same-
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sex marriages, and marriages entered into . . . with the intent to evade the prohibitions of” Idaho’s Marriage Laws. Id. The parties do not cite, and the Court does not find, a published Idaho case holding that anything other than same-sex marriage violates the public policy set forth in Idaho Code § 32-209. Each of these laws unambiguously expresses a singular purpose—to exclude same-sex couples from civil marriage in Idaho.
The Laws’ legislative history makes their exclusionary purpose even clearer. Idaho Code Sections 32-201 and 32-209 were both amended in the mid-1990’s, at a time when no state recognized same-sex marriage. In 1993, however, the Hawaii Supreme Court became the first court in the country to strike down a statutory same-sex marriage ban. Baehr v. Lewin, 852 P.2d 44, 61 (Haw. 1993) (remanding for consideration of justifications for the ban). After Baehr, over half of the states passed laws prohibiting same-sex marriage. See Bourke v. Beshear, 2014 WL 556729, at *1 n.1 (W.D. Ken. Feb. 12, 2014) (listing laws). In addition, the United States Congress reacted in 1996 by passing the Defense of Marriage Act—the law found partially unconstitutional in Windsor. The present versions of Sections 32-201 and 32-209 also took effect in 1996.
The Idaho Legislature amended § 32-201 in 1995 to add, among other language, the words “between a man and a woman.” 1995 Idaho Sess. Laws, ch. 104, § 3. In addition to this definitional change, the 1995 amendment abolished common law marriage. Id. §§ 3-5. Indeed, abolition of common law marriage appears to be the amendment’s primary purpose, as its legislative history does not include a single direct reference to the “between a man and a woman” provision. The Compiler’s Notes for the 1995 amendment do, however, include the following:
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It is the intent of this act to prom ote the stability and best interests o f marriage and the family. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization and of vit al interest to societ y and the state. Common-law marriages entered into in this state on and af ter January 1, 1996, will no longer be recognized. 1995 Idaho Sess. Laws, ch. 104, § 1. The stated intent and apparent purpose of the amendment to Idaho Code § 32-201 was to promote family stability, morality, and a traditional view of the marriage institution. Section 32-201’s man-woman marriage definition took effect on January 1, 1996. A few months later, the Idaho Legislature amended § 32-209 to include a public policy against same-sex and evasive marriages. 1996 Idaho Sess. Laws, Ch. 331, § 1. From Idaho’s territorial days until the amendment’s approval in 1996, Idaho law codified the long-established “place of celebration rule,” whereby “[a]ll marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state.” Idaho Code Ann. § 32-209 (1983); see also Hilton v. Stewart, 96 P. 579, 583 (Idaho 1908) (“This statute merely announces the general rule of law, as we understand it, that any contract which is a valid marriage according to the law of the place where the contract is made is valid everywhere.”). But in 1996, the Legislature ended Idaho’s tradition of comity toward out-of-state marriages. At the time, Speaker of the House Simpson voiced his concern that Hawaii might recognize same-sex marriages and leave Idaho with no choice but to reinforce its current policy or recognize same-sex marriage by default. Relating to Recognition of Foreign Marriages: Minutes for Feb. 15, 1996 Meeting on H.B. 658 Before the H.
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Judiciary, Rules, & Admin. Comm., 53d Legis. Sess., 2d Reg. Sess. 2 (Idaho 1996). According to Representative William Sali, there was no time to delay or study the matter because Hawaii would dictate Idaho’s marriage policy if the Legislature did not act. Id. Despite opposition from religious leaders, civil liberties advocates, and both homosexual and heterosexual citizens, the bill easily passed the House and Senate before arriving on Governor Batt’s desk.
With the Governor’s signature, the law took immediate effect on March 18, 1996. This swift transition from bill to governing law was due to a legislative declaration of emergency that accompanied the substantive changes to § 32-209. 1996 Idaho Sess. Laws, Ch. 331, § 2. The Legislature’s sense of urgency was vindicated when, later that year, a Hawaii trial court rejected every proffered justification for Hawaii’s same-sex marriage ban and enjoined Hawaii from denying marriage license applications solely because of the applicants’ sexual orientation. Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), superseded by statute, Haw. Rev. Stat. § 572-1 (1998). Thus, the purpose of the 1996 amendment to Idaho Code § 32-209 was to buttress Idaho’s traditional definition of marriage against changes in other states’ marriage laws.
By 2003, the highest courts in Vermont and Massachusetts had ruled that their respective state constitutions precluded the denial of marriage benefits on the basis of sexual orientation. Baker v. State, 744 A.2d 864 (Vt. 1999); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003). These developments again prompted legislative reactions across the country. This time, however, the Idaho Legislature sought to place on the ballot a proposed amendment to the Idaho Constitution that would prevent an Idaho
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court from reaching a result similar to those in Vermont and Massachusetts. Efforts to do so in 2004 and 2005 failed to garner the necessary two-thirds majority in the Idaho Senate. But, in 2006, a third measure was introduced in the House, debated, and this time passed both chambers. H.R.J. Res. 2, 58th Leg., 2d Reg. Sess. (Idaho 2006). The legislative approval allowed the following question to appear on the November 2006 general election ballot:
Shall Article III, of the Constitution of the State of Id aho be am ended by the addition of a new Section 28, to provide that a marriage between a man and a w oman is the onl y dom estic legal uni on t hat shall be valid or recognized in this state? (Dkt. 57-8 at 2.) The public debate over the proposal, which became known as Amendment 2, centered on tradition, family, and equality. See generally (Dkt. 57-4; Dkt. 57-7 at 6-16, 18-20, 35; Dkt. 57-8 at 5, 42-128.) Supporters of the amendment argued that traditional marriage between a man and a woman formed a foundation for stable and nurturing families. Both sides debated the relative quality of opposite-sex versus same-sex parenting. Those opposed to the amendment emphasized that same-sex couples could be just as loving and committed to each other and their children as opposite-sex couples. Some framed the debate in explicitly religious terms, but faith leaders spoke out on both sides. Others characterized the matter as a secular issue, often citing the need for equality among citizens. On November 7, 2006, Idaho’s electorate took to the ballot box, and 63.3% voted in favor of Amendment 2. (Dkt. 57-8 at 8.) The amendment immunized Idaho’s man-
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woman marriage definition from attack in the State’s courts or legislative bodies. As a result, nothing short of a successful federal constitutional challenge or a superseding amendment to Idaho’s Constitution would be sufficient to change Idaho’s Marriage Laws.
Because over 280,000 Idahoans voted for Amendment 2, it is not feasible for the Court to infer a particular purpose or intent for the provision. But, as Plaintiffs argue, it is obvious that Idaho’s Marriage Laws purposefully discriminate on the basis of sexual orientation. Suggesting that the laws’ discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho’s traditional civil marriage institution. “But ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601 (Scalia, J., dissenting). Although the Court finds Idaho’s Marriage Laws were motivated, in part, by important governmental interests, their history demonstrates that moral disapproval of homosexuality was an underlying, animating factor. As with DOMA, the “practical effect” of Idaho’s Marriage Laws is “to impose a disadvantage, a separate status, and so a stigma” on a class of people based solely on their sexual orientation. Windsor, 133 S. Ct. at 2693. The question now is whether any of the Defendants’ asserted justifications overcome the inequality imposed upon Plaintiffs and others like them.
2. Asserted Justifications for Idaho’s Marriage Laws All Defendants assert that Idaho’s Marriage Laws relate to the State’s interest in maximizing child welfare but differ on how the means—denying marital status to same-
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sex couples—serve this child-welfare end. Governor Otter primarily contends the definition fosters a traditional, child-centric marriage culture and otherwise promotes optimal family structures. The State and Recorder Rich claim the definition allows Idaho to channel its limited fiscal resources toward naturally procreative relationships.
Aside from child welfare, the Governor and amicus curiae Cornerstone Family Council of Idaho assert Idaho’s Marriage Laws serve additional, important interests. They maintain that the Laws further the State’s interest in federalism. Governor Otter also claims Idaho’s Marriage Laws serve the State’s interests in accommodating religious freedom, avoiding civic strife, and affirming democratic consensus. The Court addresses each asserted justification below.
a. Child Welfare Governor Otter contends that Idaho’s Marriage Laws advance the State’s interest in protecting children. Children are indeed both vulnerable and essential to the perpetuation of society. And, although the Court agrees that the State has a compelling interest in maximizing child welfare, the link between the interest in protecting children and Idaho’s Marriage Laws is so attenuated that it is not rational, let alone exceedingly persuasive. Governor Otter observes that man-woman marriage is an ancient and traditional “child-centered institution, one focused first and foremost on the welfare of children
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rather than the emotional interests of adults.” 13 (Dkt. 57-2 at 10.) The Governor emphasizes this “conjugal” view of marriage encourages “parents to routinely sacrifice their own interests to the legitimate needs and interests of their children.” (Id.) And, the Governor asserts, Idaho’s Marriage Laws reinforce this traditional, child-centric norm by offering marital status only to couples with the natural capacity to procreate.
The Governor claims that recognizing same-sex marriages would radically redefine the institution by imposing a “consent-based” marriage regime. Without the normative guidance of traditional marriage, the Governor fears that the social institution of marriage will erode. This deinstitutionalization of marriage could cause parents to turn away from the self-sacrifice that, the Governor asserts, is a hallmark of Idaho’s traditional, child-centric regime.
The Governor also claims that Idaho’s Marriage Laws further the State’s interest in child-welfare by promoting optimal family structures. Citing to volumes of sociological studies, the Governor advances the general proposition that two parents in a low-conflict marriage constitute the optimal child-rearing environment. See generally (Dkt. 57-8 at 103-128; 57-9 through 57-11 at 150.) Plaintiffs do not dispute this general conclusion. (Lamb Dec., Dkt. 47 ¶¶ 17-20.) But the Governor further argues that children
13 The Governor does not argue that Idaho’s Marriage Laws advance traditional marriage for tradition’s sake alone. But it bears repeating that the “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller v. Doe, 509 U.S. 312, 326 (1993). Moreover, “‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.’” Lawrence v. Texas, 539 U.S. 558, 577–78 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
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uniquely benefit from parental gender “complementarity”—that is, parenting by parents of the opposite sex. (Dkt. 90 at 3.) Plaintiffs counter by emphasizing the broad consensus among sociological experts that gender of the two parents makes no difference for a child’s well-being. (Lamb Dec., Dkt. 47 ¶¶ 32-36.) Thus, the parties fundamentally disagree on whether same-sex parenting negatively affects a child’s well-being.14
The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. (Id. ¶¶ 35-41.) But the Court need not—even if it could at the summary judgment stage—resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage. That link is faulty for at least four reasons.
First, civil marriage in Idaho is and has long been a designedly consent-based institution. The law speaks of marriage as a “civil contract . . . to which the consent of parties capable of making it is necessary.” Idaho Code 32-201. True, “throughout human history and across many cultures, marriage has been viewed as an exclusively oppositesex institution and as one inextricably linked to procreation and biological kinship.” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). But Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision or simply
14 Two federal district courts have held bench trials that focused on this question. Perry v. Schwarzenegger, 704 F.Supp.2d 921 (2010); DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. March 21, 2014). Both found that the overwhelming scientific consensus favors the “no differences” view.
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seek a tax break. That such a crass objective would be sufficient to obtain a marriage license does not mean marriage is a cheap convenience. Instead, it means that the value of marriage derives from a place beyond the law’s reach.
Important as the child-centered vision of marriage is, Idaho’s consent-based marriage regime does not require heterosexual couples to accept or follow this norm. Whatever the beliefs or intentions of the parties, there is nothing conjugal or child-centric about the formality of obtaining a marriage license. The Governor offers only conjecture to support his critical point—that allowing Plaintiffs or people like them to marry risks vitiating the child-centered norm. There is no evidence that allowing same-sex marriages will have any effect on when, how, or why opposite-sex couples choose to marry.
Second, Idaho does not condition marriage licenses or marital benefits on heterosexual couples’ ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate. Indeed, as the State and Recorder Rich observe, “[a]ttempting to restrict civil marriage to couples who intend to have children would demand governmental inquiry into sensitive matters of personal privacy and raise insuperable, or at a minimum very significant, privacy-based constitutional concerns.” (Dkt. 73 at 17.) To claim that civil marriage is somehow tied to a governmental interest in procreation is to “threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.” Bostic v. Rainey, 970 F.Supp.2d 456, 478-79 (E.D. Va. 2014).
Third, Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents. Under Idaho law, everyone from multiple
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divorcees, “dead-beat dads,” see Zablocki, 434 U.S. 374, to prison inmates, see Turner v. Safley, 482 U.S. 78 (1987), may marry, as long as they marry someone of the opposite sex. Yet Plaintiffs—six of whom have children or step-children—are deemed unworthy of marital benefits because they might be less fit parents according to an inconclusive body of scientific literature. To the extent this amounts to a presumption of parental unfitness, it bears emphasis that a similar presumption was found unconstitutional over 40 years ago. Stanley v. Illinois, 405 U.S. 645 (1972) (holding due process entitles unwed fathers to a hearing before they could be deemed unfit parents). Constitutionality aside, "sexual orientation [is] wholly irrelevant" to whether a person can adopt children in Idaho. In re Adoption of Doe, —P.3d—, 2014 WL 527144, at *6 (Idaho February 10, 2014). In a state where the privilege of becoming a child's adoptive parent does not hinge on a person's sexual orientation, it is impossible to fathom how hypothetical concerns about the same person's parental fitness possibly could relate to civil marriage.
Finally, and most importantly, the Governor’s child welfare rationales disregard the welfare of children with same-sex parents. It is undisputed that “poverty and social isolation [are] associated with maladjustment [in children], and adequate resources support[] healthy adjustment.” (Lamb Dec., Dkt. 47 ¶ 18.c.) It is also clear that “[m]arriage can yield important benefits for children and families, including state and federal legal protections, economic resources, family stability, and social legitimacy. These benefits are equally advantageous for children and adolescents in families headed by same-sex and different-sex couples.” (Id. ¶ 48.) Although the State and Recorder Rich dismiss same-sex households as “statistically insignificant,” (Dkt. 73 at 12 n.3), no
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Defendant suggests that the State’s child welfare interest does not extend to the children

in these households.

In this most glaring regard, Idaho’s Marriage Laws fail to advance the State’s

interest because they withhold legal, financial, and social benefits from the very group

they purportedly protect—children. As Justice Kennedy observed, a law that withdraws

these benefits “humiliates . . . 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. Failing to shield Idaho’s children in any

rational way, Idaho’s Marriage Laws fall on the sword they wield against same-sex

couples and their families.

b. Procreative

Focusing Governmental Resources on Couples with Biological Capacity

The State and Recorder Rich articulate a somewhat different link between child

welfare and Idaho’s prohibition of same-sex marriage. They propose that Idaho’s interest

in child welfare is served by directing the State’s limited resources to opposite-sex

couples. The State is justified in reserving marital benefits for these couples, the

argument continues, because only they have the natural ability to procreate. Pointing to

the public costs of divorce, single parenting, and tax breaks for married couples, Recorder

Rich and the State argue that the State can avoid some of these costs by not allowing

same-sex couples to marry.

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Even in rational basis cases, the Supreme Court has rejected the argument that cost-cutting is a sufficient reason for denying benefits to a discrete group. Plyler v. Doe, 457 U.S. 202, 229 (1982) (invalidating a Texas statute that denied free public education to children of undocumented immigrants). When Arizona threatened to deny health care benefits to the same-sex domestic partners of state employees, the Ninth Circuit affirmed the district court’s rejection of the Arizona’s cost-saving rationale. Diaz v. Brewer, 656 F.3d 1008, 1013 (9th Cir. 2011). In both cases, the chief constitutional problem was that the states’ attempts to cut costs fell on an arbitrarily selected group.
Because heightened scrutiny applies here, the Court must focus on the Laws’ actual purposes. The Court finds that defending the State’s fiscal resources is not an actual purpose of any law challenged in this case. Aside from the cost of putting Amendment 2 on the ballot, (Dkt. 57-7 at 3), the record indicates that the only public costs referenced during the debate over the measure were the cost of defending it in litigation, (Dkt. 57-8 at 5), and the cost of driving businesses away from Idaho with a State-approved message of intolerance. (Id. at 74.)
Even assuming cost-cutting was an actual purpose for Idaho’s Marriage Laws, the State and Rich do not explain how avoiding the public cost of same-sex marriages improves child welfare. The Laws do not create new benefits for naturally procreative couples; instead, they arbitrarily withhold benefits from a “statistically insignificant” class of households with children. (Dkt. 73 at 12 n.3.) There is no showing that forbidding same-sex marriages makes naturally procreative couples more likely to marry, let alone stay married. Nor is there any evidence that the State has any compunction
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about expending its limited resources on non-procreative or unstable heterosexual marriages.
Defendants’ only explanation is that a law “does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485 (1970) (internal quotation omitted). While this may be the case when a court reviews economic legislation under the rational basis standard, e.g., U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980), more precision is necessary where, as here, the law discriminates on the basis of sexual orientation. See SmithKline, 740 F.3d at 481-82. If Idaho’s Marriage Laws seek to improve child welfare by focusing limited public resources on heterosexual marriages, they do so in a patently arbitrary manner. They are at once grossly overinclusive—by expending the State’s limited resources on unstable marriages and married couples with no intent or ability to procreate—and dramatically underinclusive—by denying those resources to children whose parents happen to be homosexual. The burden of this imprecision falls on families that seek the same stability that Idaho claims to incentivize. This is not fiscal prudence; it is a State-endorsed message of unworthiness that does not withstand constitutional scrutiny.
c. Federalism Governor Otter and amicus curiae Cornerstone Family Council of Idaho claim that federalism principles require the Court to uphold the State’s traditional authority to define marriage. Defendants also make two more specific state’s rights arguments. In particular, Governor Otter claims that Idaho’s policy against recognizing out-of-state same-sex
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marriages must be accepted under the well-established public policy exception to the Full Faith and Credit Clause. See Nevada v. Hall, 440 U.S. 410, 422 (1979). Defendants also claim that Section 2 of the federal Defense of Marriage Act, codified at 28 U.S.C. § 1738C, authorizes Idaho to refuse recognition of same-sex marriages. All of these arguments fail to consider that “neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment.” Saenz v. Rowe, 526 U.S. 489, 508 (1999).
It is true federalism favors preserving a state’s right to choose policies uniquely suited to the preferences of its citizens. By creating a system with both state and federal governments, the “Framers [of the Constitution] thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant bureaucracy.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012) (quoting The Federalist No. 45, at 293 (J. Madison)). Thus, “a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Windsor upheld this principle by invalidating the federal man-woman marriage definition, in part, because of its “unusual deviation” from the federal government’s usual deference to state domestic relations laws. 133 S. Ct. at 2693.
However, “States are not the sole intended beneficiaries of federalism.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). Federalism has another dimension, one that
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“secures to citizens the liberties that derive from the diffusion of sovereign power.”

Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting).

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or contr ol their actions. B y denyi ng any one governm ent com plete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitr ary power. Whe n governm ent acts in excess of its lawful powers, that liberty is at stake.
Bond, 131 S. Ct. at 2364 (citation omitted). Federalism is not just a bulwark against

federal government overreach; it is also an essential check on state power.

For that reason, “federalism” is no answer where, as here, individuals claim their

state government has trampled their constitutional rights. Indeed, Windsor also

recognizes the transcendent quality of individual constitutional rights, even when those

rights conflict with a state’s traditional sovereign authority. “State laws defining and

regulating marriage, of course, must respect the constitutional rights of persons, see, e.g.,

Loving. . . .” Windsor, 133 S. Ct. at 2691 (emphasis added). As other courts have

recognized, Windsor’s citation to Loving for this proposition “is a disclaimer of enormous

proportions.” Bishop v. U.S., 962 F.Supp.2d 1252, 1279 (N.D. Okla. 2014). In Loving,

Virginia’s sovereign authority over marital relations could not save the State’s anti-

miscegenation laws. And, just as in Loving, Idaho’s right to regulate domestic relations is

subject to the paramount rights of its citizens. That is the way of our federal system.

d. Accommodating Religious Freedom, Avoiding Civic Strife, and

Assuring

Social Consensus

Finally, Governor Otter argues that Idaho’s Marriage Laws should be upheld

because they serve the related goals of supporting religious liberty, avoiding the potential

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for religion-centered conflicts, and affirming a prevailing social consensus on marriage. Analogizing to the Supreme Court’s days-old decision in Schuette v. BAMN, 134 S. Ct. 1623 (2014), the Governor argues that “a state’s voters can ban preferences” and that courts should “let[] the people make difficult policy choices through democratic means.” (Dkt. 93 at 2.) Yet the Governor acknowledges, as he must, this “is not to say the State can invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution.” (Dkt. 57-2 at 53.)
The Governor’s argument concerning religious liberty is myopic. No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture. But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. (S. Watsen Dec. ¶ 13, Dkt. 51.) To the extent Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho. “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.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1214 (D. Utah 2013).
Likewise, a desire to protect or maintain a particular social consensus does not withstand constitutional scrutiny. “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. FortyFourth Gen. Assembly of Colo., 377 U.S. 713, 736-37 (1964). The Supreme Court’s
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decision in Schuette says nothing to the contrary. Unlike this case, Schuette involved the Michigan electorate’s vote to stop the racially discriminatory, albeit arguably beneficial, practice of affirmative action. 134 S. Ct. at 1630 (“The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”). Far from establishing a state’s right to violate the Fourteenth Amendment by majority vote, Schuette stands for the unremarkable proposition that voters can and should be allowed to end their state’s discriminatory policies. That principle has no application in a case, like this one, where voters imposed a purposefully discriminatory policy that undermines a fundamental right.
Rather, the dispositive principle in this case is that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Supreme Court has endorsed this principle again and again. As Justice Robert Jackson so eloquently put it:
The framers of the Constitu tion knew, and we should not forget today, that there is no more effective practic al guaranty against arbitrary and unreasonable governm ent than t o require that the principles of law which officials woul d im pose upon a m inority m ust be im posed ge nerally. Conversely, nothing opens the door to ar bitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the politi cal retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be ju st than to require that laws be equal in operation.
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Railway Express Agency v. New York, 336 U.S. 106, 112-113 (1949) (Jackson, J., concurring).
This principle resonates today, as 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case.15 Considering many of the same arguments and much of the same law, each of these courts concluded that state laws prohibiting or refusing to recognize same-sex marriage fail to rationally advance legitimate state interests. This judicial consensus was forged from each court’s independent analysis of Supreme Court cases extending from Loving through Romer, Lawrence, and Windsor. The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage. Because Idaho’s Marriage Laws do not withstand any applicable form of constitutional scrutiny, the Court finds they violate the Fourteenth Amendment to the United States Constitution.
V. CONCLUSION The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex
15 Kitchen v. Herbert, 961 F.Supp.2d 1181, (D. Utah 2013); Bishop v. U.S., 962 F.Supp.2d 1252 (N.D. Okla. 2014); Bourke v. Beshear, —F.Supp.2d—, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, 970 F.Supp.2d 456 (E.D. Va. 2014); Lee v. Orr, —F.Supp.2d—, 2014 WL 683680 (N.D. Ill. Feb 21, 2014); De Leon v. Perry, —F.Supp.2d—, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014); Tanco v. Haslam, —F.Supp.2d—, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014); DeBoer v. Snyder, —F.Supp.2d—, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014); Henry v. Himes, —F.Supp.2d—, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014); Baskin v. Bogan, —F.Supp.2d—, 2014 WL 1568884 (S.D. Ind. Apr. 18, 2014).
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couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.
The Defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children. Without proof, the Defendants’ justifications echo the unsubstantiated fears that could not prop up the antimiscegenation laws and rigid gender roles of days long past. Then as now, it is the duty of the courts to apply the law to the facts in evidence. Here, the facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny.
The Fourteenth Amendment guarantees of due process and equal protection lie at the core of our constitutional system. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision. “[T]he history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). Slow as the march toward equality may seem, it is never in vain.
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ORDER The Court GRANTS Plaintiffs' Motion for Summary Judgment (Dkt. 45). Defendant Governor Otter's Motion for Summary Judgment (Dkt. 57) and Defendant Recorder Rich and Defendant-Intervenor Idaho's Motions to Dismiss (Dkt. 30, 41, 43) are DENIED. The Court hereby DECLARES that Idaho's Marriage Laws are unconstitutional because they violate Plaintiffs' rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The Court PERMANENTLY ENJOINS the State of Idaho and its officers, employees, agents, and political subdivisions from enforcing Article III, § 28 of the Idaho Constitution; Idaho Code Sections 32-201 and 32-209; and any other laws or regulations to the extent they do not recognize same-sex marriages validly contracted outside Idaho or prohibit otherwise qualified same-sex couples from marrying in Idaho. This injunction shall take effect at 9:00 a.m. MDT on May 16, 2014. IT IS SO ORDERED. DATED: May 13, 2014.
CANDY WAGAHOFF DALE CHIEF U.S. MAGISTRATE JUDGE
MEMORANDUM DECISION AND ORDER - 57

 
 Case 1:13-cv-00482-CWD Document 101 Filed 05/14/14 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR

THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON,

Case No. 1:13-cv-00482-CWD JUDGMENT

Plaintiffs,

v.

C.L. “BUTCH” OTTER, as Governor of the State of Idaho, in his official capacity, and CHRISTOPHER RICH, as Recorder of Ada County, Idaho, in his official capacity,

Defendants, and

STATE OF IDAHO,

Defendant-Intervenor.

In accordance with the Court’s Memorandum Decision and Order dated May 13,

2014 (Dkt. 98), IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

(1) Judgment is entered in favor of Plaintiffs;

(2) Idaho’s laws prohibiting same-sex marriage in Idaho or not recognizing

same-sex marriages validly contracted outside Idaho violate the Due Process and Equal

Protection Clauses of the Fourteenth Amendment to the United States Constitution;

(3) The State of Idaho and its officers, employees, agents, and political

Case 1:13-cv-00482-CWD Document 101 Filed 05/14/14 Page 2 of 2
subdivisions are permanently enjoined from enforcing Article III, § 28 of the Idaho Constitution, Idaho Code §§ 32-201 and 32-209, and any other laws or regulations to the extent they do not recognize same-sex marriages validly contracted outside Idaho or prohibit otherwise qualified same-sex couples from marrying in Idaho; (4) This injunction shall take effect at 9:00 a.m. MDT on May 16, 2014; and (5) The Clerk of Court is directed to close this case.
May 14, 2014

 
 Case 1:13-cv-00482-CWD Document 38 Filed 01/21/14 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON,
Plaintiffs,
v.
C.L. “BUTCH” OTTER, as Governor of the State of Idaho, in his official capacity, and CHRISTOPHER RICH, as Recorder of Ada County, Idaho, in his official capacity,
Defendants.

Case No. 1:13-cv-00482-CWD ORDER

Before the Court is the State of Idaho’s Motion to Intervene (Dkt. 18). By and through the Office of the Attorney General, the State of Idaho seeks the Court’s permission to intervene as a defendant in Plaintiffs’ constitutional challenge to several Idaho marriage laws. For reasons more fully explained below, the Court will grant the motion to intervene.
ORDER - 1

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BACKGROUND Plaintiffs are four same-sex couples—two unmarried and two legally married outside of the State of Idaho. They claim that Idaho’s laws excluding same-sex couples from marriage and withholding recognition of same-sex marriages lawfully entered into in other jurisdictions deprive them of due process and equal protection guaranteed by the Fourteenth Amendment to the Constitution of the United States. On November 8, 2013, Plaintiffs filed their Complaint for Declaratory and Injunctive Relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202. (Dkt. 1.) The Complaint names as defendants the Governor of the State of Idaho, C.L. “Butch” Otter, and the Ada County Recorder, Christopher Rich, in their official capacities. Defendant Rich, acting through his authorized deputy, is alleged to have denied marriage license applications submitted by both unmarried couples. (Dkt. 1 ¶¶ 17-18.) Defendant Otter, Idaho’s Chief Executive, is responsible for enforcing the State’s allegedly unconstitutional marriage laws. (Id. at ¶ 19.) Idaho law permits the Governor to “employ attorneys other than those under the supervision of the attorney general.” Idaho Code § 67-1406(1). Defendant Otter to date has been represented by counsel from the Office of the Governor rather than by counsel from the Office of the Attorney General. (Dkt. 14.) On December 11, 2013, the State of Idaho moved to intervene in this matter, asserting a strong interest in defending Idaho’s marriage laws against Plaintiffs’ constitutional attack. At the time the State filed its motion, the Civil Division of the Ada County Prosecutor’s Office represented Defendant Rich. On December 13, 2013,
ORDER - 2

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Defendant Rich filed a Notice of Non-Objection to the State’s Motion to Intervene. (Dkt. 22.) Plaintiffs filed their response in opposition to the State’s motion on December 24, 2013. (Dkt. 24.) To date, Defendant Otter has taken no position on the motion.1
On January 2, 2014, the Ada County Prosecutor’s Office withdrew as counsel of record for Defendant Rich and the Office of the Attorney General appeared in substitution as his counsel. (Dkt. 26.) One week after this substitution, Defendant Rich filed a Motion to Dismiss, arguing the Complaint fails to state a claim against him upon which relief can be granted. (Dkt. 30.) Consequently, the State of Idaho’s Motion to Intervene involves a scenario different than when it was filed, for the Office of the Attorney General now represents both the proposed intervenor and a named defendant seeking dismissal of the claims against him. The Court heard oral argument on the Motion to Intervene on January 16, 2014, and the matter is ripe for resolution.
DISCUSSION The State of Idaho argues the Court should permit it to intervene as a defendant under Federal Rule of Civil Procedure 24(b). Plaintiffs do not dispute that the State meets the threshold requirements for permissive intervention. However, Plaintiffs contend that certain discretionary factors weigh against intervention, primarily because the State of Idaho’s interests already are adequately represented by Defendants Otter and Rich. Plaintiffs also contend that “piling on” filings from a third defendant inevitably will delay these proceedings and prejudice Plaintiffs.

1

At the January 16, 2014 hearing on the State of Idaho’s Motion to Intervene, counsel for

Defendant Otter represented that the Governor has “no problem with the Attorney General

participating in the case.”

ORDER - 3

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1. Permissive Intervention As a preliminary matter, it is important to recognize that “Rule 24 traditionally has
received liberal construction in favor of applicants for intervention.” Wash. State Bldg. and Const. Trades Council, AFL-CIO v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982). To qualify for permissive intervention, the proposed intervenor must file a timely motion and have “a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). In addition, the motion to intervene must “state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Id. at 24(c). If the proposed intervenor satisfies these threshold requirements, the Court may, in its discretion, permit intervention.
In Spangler v. Pasadena Board of Education, 552 F.2d 1326, 1329 (9th Cir. 1977), the United States Court of Appeals for the Ninth Circuit enunciated several factors to guide the district courts’ exercise of their broad discretion over motions for permissive intervention.
These relevant factors include the nature and extent of the intervenors' interest, their standing to raise relevant legal issues, the legal position they seek to advance, and its probable relation to the merits of the case. The court may also consider whether changes have occurred in the litigation so that intervention that was once denied should be reexamined, whether the intervenors' interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented.
ORDER - 4

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Id. (footnotes omitted). Finally, as emphasized by Rule 24(b)(3), the Court “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”
Plaintiffs do not dispute that the State of Idaho timely filed its motion to intervene. Nor do they dispute that the State seeks to assert defenses that share common questions of law with those asserted by Defendants Rich and Otter. Indeed, the State of Idaho moved to intervene well before the scheduling conference in this matter, and its motion includes a proposed answer, (Dkt. 18-2), that asserts defenses identical to those stated in Defendant Rich’s Motion to Dismiss, (Dkt. 30), and to many in Defendant Otter’s Answer (Dkt. 33). Thus, the State of Idaho satisfies the threshold requirements for permissive intervention.2
The Court finds that the Spangler factors weigh in favor of intervention. The State of Idaho has a strong interest in defending its laws against constitutional attack and its legal position plainly pertains to the merits of this case. Although Plaintiffs argue, and the Court agrees, that Defendants Otter and Rich share many of Idaho’s interests and will adequately represent those interests, these factors are not dispositive in the permissive intervention context. This case presents weighty and controversial issues of constitutional dimension, necessitating that the Court be advised in the premises to the fullest extent

2

In some circumstances, a proposed intervenor must also satisfy an additional threshold

requirement— “independent grounds for jurisdiction.” Nw. Forest Res. Council v. Glickman, 82

F.3d 825 (9th Cir. 1996). But, in federal question cases where the proposed intervenor does not

raise additional claims, this “jurisdictional concern drops away.” Freedom from Religion

Foundation v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011). Here, the State brings no

counterclaims or cross-claims and thus need not demonstrate independent grounds for

jurisdiction. See id.

ORDER - 5

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possible. In this regard, the State of Idaho emphasizes that its interests cover all issues in this case whereas the named defendants’ interests may be more limited.3 Accordingly, the Court finds that including the State of Idaho in this action likely will contribute to full development of all the legal issues presented, thereby promoting a just and equitable resolution to the controversy.
Plaintiffs’ fear that intervention by the State of Idaho will cause undue delay and prejudice the adjudication of their claims is understandable and well taken. But, the State of Idaho and the Defendants share an interest in expediently resolving this case, which indicates that undue delay or prejudice is far from certain. In fact, counsel for the State vowed in open court to join in Defendant Rich’s Motion to Dismiss and otherwise avoid duplicative filings. Plaintiffs claim these assurances are “cold comfort,” but the Court will take the State at its word unless and until its conduct lends credence to Plaintiffs’ as yet speculative concerns. Therefore, the Court will grant permissive intervention.4 2. Plaintiffs’ Request to Limit the State’s Participation
As an alternative to outright denial of intervention, Plaintiffs request that the Court strictly limit the State of Idaho’s participation. Specifically, Plaintiffs contend the State should be precluded from filing “motions, oppositions, or discovery requests, and from

3

Although counsel for the State of Idaho did not specifically articulate how the State’s

inclusion in this litigation would add to, or be distinct from, the named defendants’ participation,

he did indicate that defenses may be available to the named defendants that are not available to

the State.

4

According to the Court’s Case Management Order and consistent with the parties’

litigation plans, this case will proceed on a legal track without formal discovery unless the Court

orders otherwise. (Dkt. 37.) The Case Management Order governs these proceedings and will

apply to the State of Idaho.

ORDER - 6

Case 1:13-cv-00482-CWD Document 38 Filed 01/21/14 Page 7 of 7
offering additional witnesses or evidence, without consent of the parties or leave of Court.” (Dkt. 24 at 17.) In addition, Plaintiffs urge further limitations on the State’s briefing or even that the State be confined to the role of amicus curiae. These requests ignore the “general rule [that] intervenors are permitted to litigate fully once admitted to a suit.” League of United Latin American Citizens v. Wilson, 131F.3d 1297, 1304 (9th Cir. 1997) (citing Wright, et al., 7C Federal Practice and Procedure: Civil 2d § 1920 at 48891 (1986)). So long as the State of Idaho abides by its pledge to self-regulate, the Court finds Plaintiffs’ proposed limitations unwarranted. However, the Court may reexamine this conclusion at a later time if necessary.
ORDER NOW THEREFORE IT IS HEREBY ORDERED that the State of Idaho’s Motion to Intervene (Dkt. 18) is GRANTED. IT IS FURTHER ORDERED that the State of Idaho shall file its answer or other responsive pleading, including its planned joinder in Defendant Rich’s Motion to Dismiss, on or before January 28, 2014.
January 21, 2014
ORDER - 7

 
 Case 1:13-cv-00482-CWD Document 42 Filed 01/29/14 Page 1 of 30

Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com

Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 405 S. 8th Street, Ste. 372 Boise, ID 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com

Shannon P. Minter Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS, LORI WATSEN and SHARENE WATSEN, SHELIA ROBERTSON and ANDREA ALTMAYER, AMBER BEIERLE and RACHAEL ROBERTSON,

Case No. 1:13-cv-00482-CWD

Plaintiffs,
v.
C.L. "BUTCH" OTTER, as Governor of the State of Idaho, in his official capacity, and CHRISTOPHER RICH, as Recorder of Ada County, Idaho, in his official capacity,

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendants,

Case 1:13-cv-00482-CWD Document 42 Filed 01/29/14 Page 2 of 30
and STATE OF IDAHO,
Defendant-Intervenor.

Case 1:13-cv-00482-CWD Document 42 Filed 01/29/14 Page 3 of 30
Pursuant to Fed. R. Civ. P. 15(a)(1)(B), Plaintiffs hereby file this First Amended Complaint as a matter of course and allege as follows:
I. INTRODUCTION 1. Plaintiffs bring this action to challenge the constitutionality of Idaho’s laws that
exclude same-sex couples from marriage and fail to recognize the marriages of same-sex couples lawfully entered into in other jurisdictions. See Idaho Const. art. III, § 28; I.C. §§ 32-201, 32-209. Idaho’s refusal to marry same-sex couples and recognize valid out-of-state marriages of same-sex couples violates multiple guarantees of the Constitution of the United States. This Court should so declare and issue an injunction requiring defendants to issue marriage licenses to the unmarried plaintiffs and to recognize the existing marriages of the plaintiffs lawfully married in other states.
2. Plaintiffs Susan Latta and Traci Ehlers, and plaintiffs Lori and Sharene Watsen (the “Married Plaintiffs”) are legally married same-sex couples, having wed in other states. However, in their home state of Idaho, they are treated as legal strangers to their spouses.
3. Plaintiffs Shelia Robertson and Andrea Altmayer, and plaintiffs Amber Beierle and Rachael Roberstson (the “Unmarried Plaintiffs”), are unmarried same-sex couples in committed relationships who desire to marry. Each couple wishes to publicly declare their love and commitment before their family, friends, and community; to join their lives together and enter into a legally binding commitment to one another; and to share in the protections and security that marriage provides.
4. Plaintiffs are productive members of society, with diverse backgrounds, educations and professions. They are university instructors, a teacher of deaf children, a professional artist, a physician’s assistant, a small business owner, a historian, a clinical social worker, a warehouse manager and a certified massage therapist. One of the plaintiffs served full time in the Idaho
2

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National Guard for five years, during which time she served overseas in Operation Iraqi Freedom III and came under enemy attack. Three of the couples are raising children together, and one couple also enjoys caring for their grandchildren. The situations faced by these couples are similar to those faced by many other same-sex couples in Idaho who are denied the basic rights, privileges, and protections of marriage for themselves and their children.
5. Like many other couples with a life-long commitment, the Unmarried Plaintiffs are spouses in every sense, except that Idaho law will not allow them to marry. In fact, under Idaho law, solemnization of their commitment without a marriage license is a crime. I.C. § 32-406.
6. The Married Plaintiffs are lawfully married under the laws of sister states, but Idaho refuses to honor or recognize their marriages. Unilaterally and by operation of law alone, Idaho has effectively nullified their legal status and their rights and responsibilities as married people.
7. Under the Idaho Constitution, “a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. art. III, § 28. This provision bars same-sex couples from marrying and also precludes recognition of same-sex couples’ existing marriages or any other form of a domestic relationship outside of marriage.
8. Idaho’s exclusion of same-sex couples from marriage and refusal to respect the marriages of legally married same-sex couples adversely impact the plaintiffs and other Idaho same-sex couples in real and significant ways.
9. Idaho’s exclusion of same-sex couples from marriage and refusal to respect existing marriages undermines the plaintiff couples’ ability to achieve their life goals and dreams, disadvantages them financially, and denies them “dignity and status of immense import.” United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). Further, they and their children are stigmatized and relegated to a second-class status by being barred from marriage. Idaho’s exclusion of same-
3

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sex couples from marriage and refusal to recognize the marriages of legally married same-sex couples “tell[] those couples and all the world that their [relationships] are unworthy” of recognition. Id. at 2694. By singling out same-sex couples and their families and excluding them from any type of marital protection, those laws also “humiliate[] the . . . children now being raised by same-sex couples” and “make[] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id.
10. In the not so distant past, the majority of states, including Idaho, had laws prohibiting marriage between people of different races. Until 1959, Idaho law barred as illegal marriages between Caucasians and other races— namely, African Americans, Native Americans, and Asians. See former I.C. § 32-206 (repealed 1959). The Supreme Court held such exclusions from marriage to be unconstitutional in Loving v. Virginia, 388 U.S. 1, 12 (1967), declaring: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
11. Our courts and society have discarded, one by one, marriage laws that violated the mandate of equality guaranteed by the Constitution, such as the anti-miscegenation laws and laws that have denied married women legal independence. History has taught that the legitimacy and vitality of marriage do not depend on upholding discriminatory marriage laws. On the contrary, eliminating these remaining unconstitutional barriers to marriage further enhances the institution and society. In seventeen states and the District of Columbia, same-sex couples are marrying or will be able to do so in the coming months, and the institution of marriage continues to thrive.
12. Marriage contributes to the happiness, security, and peace of mind of countless couples and their families, and to the stability and wellbeing of society. Idaho, like other states,
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encourages and regulates marriage through hundreds of laws that provide benefits to and impose obligations on married couples. In exchange, Idaho receives the well-established benefits that marriage brings: stable, supportive families that contribute to both the social and economic wellbeing of Idaho. “Marriage has long been favorably recognized in our society as one of the fundamental institutions upon which our society is founded. Accordingly, the laws reflect a certain favorability toward creating and maintaining stable and harmonious marriages.” State v. Soura, 796 P.2d 109, 114 (Idaho 1990). When Idaho withholds a marriage license from a same-sex couple, or refuses to recognize a same-sex couple’s valid marriage from another jurisdiction, Idaho circumscribes an individual’s basic life choices, classifies persons in a manner that denies them the public recognition and myriad benefits of marriage, prevents couples from making a legally binding commitment to one another and being treated by the government and by others as a family rather than as unrelated individuals, and harms society by burdening and disrupting committed families and preventing same-sex couples from being able to fully protect and assume responsibility for one another and their children.
13. Idaho’s exclusion of same-sex couples from marriage, and its refusal to respect the marriages of same-sex couples validly entered into in other states, violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. With respect to the Unmarried Plaintiffs, Idaho’s exclusion deprives them of their fundamental right to marry and infringes their constitutionally protected interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association. With respect to the Married Plaintiffs, Idaho’s refusal to respect their marriages deprives them of their constitutionally protected liberty interest in their marital status, burdens their exercise of fundamental rights including the right to marry, and discriminates against the class of legally married persons. Idaho’s treatment of all the plaintiffs is
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subject to heightened scrutiny because it burdens fundamental constitutional rights and because it discriminates based on sex and sexual orientation. The challenged Idaho statutes and constitutional provision cannot survive any level of constitutional scrutiny, however, because they do not rationally further any legitimate government interest, but serve only to injure and humiliate samesex couples and their families.
14. Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief against the defendants. Specifically, plaintiffs seek: (a) a declaration that Idaho’s prohibition of marriage for same-sex couples and its refusal to recognize the marriages of same-sex couples validly entered into outside Idaho violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (b) a permanent injunction (i) preventing defendants from denying the Unmarried Plaintiffs the right to marry, and (ii) directing defendants to recognize the marriages of the Married Plaintiffs that were validly entered into in states outside Idaho. II. PARTIES
A. The Plaintiffs 15. Plaintiffs Susan Latta and Traci Ehlers were married in California on August 4, 2008 and reside in Boise, Idaho, where they own their home together. Susan Latta is a professional artist and adjunct professor at Boise State University, and Traci Ehlers is an owner of a wellestablished local small business. Together they have raised children, A. and J., into adults, and are grandparents of two children, M. and L. They wish to have their marriage recognized in the State of Idaho, and they and their children and grandchildren have been harmed by Idaho’s refusal to recognize their lawful marriage.
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16. In January 2014, Plaintiffs Susan Latta and Traci Ehlers executed a quitclaim deed re-deeding their home to themselves as “community property with right of survivorship.” Idaho Code § 15-6-401 permits a “husband and wife” to create an estate in community property with right of survivorship by grant or transfer of jointly owned real property to themselves. On January 29, 2014, after consulting with counsel, Defendant Rich recorded the document, but, unlike other married couples, Susan Latta and Traci Ehlers do not have the security of knowing that this deed will be recognized as valid should one of them die. Being unable to hold title as community property with right of survivorship has negative legal consequences that are not imposed on opposite-sex married couples. On information and belief, defendants contend that under Idaho law, married same-sex couples may not hold real property together as community property with right of survivorship. Therefore, there is an actual controversy between plaintiffs and defendants, and plaintiffs are entitled to a declaration that the State of Idaho may not constitutionally deny them the right to jointly hold real property as community property with right of survivorship, just as any other married couple may do.
17. Plaintiffs Lori and Sharene Watsen were married in New York on October 28, 2011 and reside in Boise, Idaho. Lori Watsen is a Licensed Clinical Social Worker and Associate Field Director for Boise State University’s School of Social Work. Sharene Watsen is a Physician Assistant with a local medical specialty group. Both have been awarded their Master’s degrees in their respective professional studies. Sharene Watsen gave birth to their son in May 2013, after conceiving through assisted reproduction. They are raising their child, C., together as his parents. Lori Watsen’s petition to adopt C. was denied and dismissed on September 18, 2013 by the Ada County Magistrate Court, in the Fourth Judicial District of Idaho. The court did not recognize their lawful marriage as valid under Idaho law and held that the Idaho legislature did not intend to allow
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adoptions by “cohabitating, committed partners.” They wish to have their marriage recognized in the State of Idaho, and they and their son have been harmed by Idaho’s refusal to recognize their lawful marriage.
18. In January 2014, Plaintiffs Lori and Sharene Watsen executed quitclaim deeds redeeding certain real property separately owned by them prior to their marriage to themselves as “community property with right of survivorship.” Idaho Code § 15-6-401 permits a “husband and wife” to create an estate in community property with right of survivorship by grant or transfer of separately owned real property from one spouse to both spouses. On January 29, 2014, after consulting with counsel, Defendant Rich recorded the document, but, unlike other married couples, Lori and Sharene Watsen do not have the security of knowing that this deed will be recognized as valid should one of them die. Being unable to hold title as community property with right of survivorship has negative legal consequences that are not imposed on opposite-sex married couples. On information and belief, defendants contend that under Idaho law, married same-sex couples may not hold real property together as community property with right of survivorship. Therefore, there is an actual controversy between plaintiffs and defendants, and plaintiffs are entitled to a declaration that the State of Idaho may not constitutionally deny them the right to jointly hold real property as community property with right of survivorship, just as any other married couple may do.
19. Plaintiffs Shelia Robertson and Andrea Altmayer have been in a committed relationship for sixteen years and reside in Boise, Idaho. Shelia Robertson is a teacher of deaf children and a nationally certified sign language interpreter with a Master’s degree in Education. Andrea Altmayer is a certified massage therapist with a Bachelor’s degree in Health Sciences. Andrea Altmayer gave birth to their son in November 2009, after conceiving through assisted
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reproduction. They are raising their child, B., together as his parents. On November 6, 2013, Andrea Altmayer and Shelia Robertson appeared in person at the Ada County Recorder’s Office in Boise, Idaho to apply for a marriage license. They meet all of Idaho’s qualifications for the issuance of a marriage license, except that they are of the same sex. Defendant Rich, through his authorized deputy, refused their marriage license application because they are a same-sex couple. They wish to marry in the State of Idaho, and they and their child have been harmed by Idaho’s refusal to allow them to do so.
20. Plaintiffs Amber Beierle and Rachael Robertson have been in a committed relationship for three years and reside in Boise, Idaho, where they own their home together. Amber Beierle is an education specialist and manager of a state historic site, with a Master’s degree in Public History. Rachael Robertson manages a commercial supply warehouse. She is also a veteran of the Idaho Army National Guard, with five years of service. During that time, she served a tour of duty in Iraq. Rachael Robertson was awarded a combat medal and combat action badge, as well as a good solider conduct medal in connection with her honorable service to her country and the Idaho Army National Guard. On November 6, 2013, Amber Beierle and Rachael Robertson appeared in person at the Ada County Recorder’s Office in Boise, Idaho to apply for a marriage license. They meet all of Idaho’s requirements for the issuance of a marriage license, except that they are of the same sex. Defendant Rich, through his authorized deputy, refused their marriage license application because they are a same-sex couple. They wish to marry in the State of Idaho and have been harmed by Idaho’s refusal to allow them to do so.
B. The Defendants 21. Defendant C.L. "Butch” Otter is Governor of the State of Idaho. Article IV, section 5 of the Idaho Constitution states: “The supreme executive power of the state is vested in the
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governor, who shall see that the laws are faithfully executed.” He is responsible for upholding and ensuring compliance with the state constitution and statutes prescribed by the legislature, including Idaho’s laws barring same-sex couples from marriage and refusing to recognize the valid out-ofstate marriages of same-sex couples. Governor Otter also bears the authority and responsibility for the formulation and implementation of policies of the executive branch. Governor Otter is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. Governor Otter’s official residence is in Ada County, Idaho, within the District of Idaho. He is sued in his official capacity.
22. Defendant Christopher Rich is the Recorder of Ada County, Idaho. Article X, section 16 of the Idaho Constitution established the position of clerk of the district court. Article XVIII, section 6 of the Idaho Constitution provides that the clerk of the district court shall also be ex-officio auditor and recorder. See also I.C. § 31-2001. Under Idaho law, as the Ada County Recorder, Defendant Rich has “the authority to issue marriage licenses to any party applying for the same who may be entitled under the laws of this state to contract matrimony.” I.C. § 32-401, I.C. §32-403. Christopher Rich is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. Christopher Rich’s official residence is in Ada County, Idaho, within the District of Idaho. He is sued in his official capacity.
23. Defendant-Intervenor State of Idaho is one of the United States of America. It is named as a defendant herein pursuant to its express request to intervene in this action and subject itself to the jurisdiction of this Court notwithstanding the provisions of the Eleventh Amendment to the Constitution of the United States and the doctrine of sovereign immunity.
24. Defendants, through their respective duties and obligations, are responsible for enforcing Idaho’s laws barring same-sex couples from marriage and refusing to recognize the valid
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out-of-state marriages of same-sex couples. Each defendant, and those subject to their supervision and control, have caused the harms alleged, and will continue to injure plaintiffs if not enjoined. Accordingly, the relief requested is sought against both defendants, as well as all persons under their supervision and control, including their officers, employees and agents. III. JURISDICTION AND VENUE
25. Plaintiffs bring this action under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202 to redress the deprivation under color of state law of rights secured by the United States Constitution.
26. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. This Court has personal jurisdiction over plaintiffs and defendants.
27. Venue is proper in this Court under 28 U.S.C. § 1391 (b)(1) and (2) because the defendants reside and/or work in this District and both defendants reside in this State, and because a substantial part of the acts and events giving rise to this Complaint occurred in this District.
28. This Court has authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. IV. STATEMENT OF FACTS
Idaho’s Laws Barring Same-Sex Couples from Marriage and Refusing to Recognize the Valid Out-of-State Marriages of Same-Sex Couples 29. Historically, Idaho has not questioned the legitimacy of marriages from other states that are valid under the other state’s laws. From territorial days until 1996, Idaho recognized all “foreign” marriages if they were lawful under the laws of the other jurisdiction. 1867, p. 71, § 5; R.S. § 2428; I.C. § 32-209.
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30. In 1996, however, in response to the mere possibility that some states might permit same-sex couples to marry although none had yet done so, the Idaho legislature amended Idaho Code section 32-209 to create an exception to the longstanding rule that Idaho generally respects marriages that are validly entered into in other states only for the legal marriages of same-sex couples. That statute now provides:
All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state.
31. Likewise, I.C. § 32-201 provides: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by the issuance of a license and a solemnization as authorized and provided by law. Marriage created by a mutual assumption of marital rights, duties or obligations shall not be recognized as a lawful marriage.
32. In 2006, although Idaho’s statutes already barred marriage by same-sex couples and denied recognition to the marriages of same-sex couples who legally married out of state, Idaho amended its Constitution to do so as well. Article III, section 28 provides:
A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state. Harms Caused by Idaho’s Laws Barring Same-Sex Couples from Marriage and Refusing to Recognize Same-Sex Couples’ Valid Out-of-State Marriages 33. Plaintiffs are residents of Idaho who experience the same joys and challenges of family life as their neighbors, co-workers, and other community members who may marry freely and whose legal marriages are respected under Idaho law. Plaintiffs are productive, contributing citizens who support their families and nurture their children, but must do so without the same legal
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shelter, dignity, and respect afforded by Idaho to other families through access to the universally celebrated status of marriage. Idaho’s exclusion of plaintiffs from marriage, and defendants’ enforcement of that exclusion, as well as Idaho’s refusal to respect the marriages of legally married same-sex couples from other states, subject plaintiffs to an inferior “second class” status as Idahoans relative to the rest of the community. These laws deprive them and their children of equal dignity, security, and legal protections afforded to other Idaho families.
34. Plaintiffs Susan Latta and Traci Ehlers were married in California on August 4, 2008 and would be recognized as such under Idaho law but for the fact that they are a same-sex couple. Instead, they are treated as legal strangers to one another under Idaho law.
35. Plaintiffs Lori and Sharene Watsen were married in New York on October 28, 2011 and would be recognized as such under Idaho law but for the fact that they are a same-sex couple. Instead, they are treated as legal strangers to one another under Idaho law.
36. Plaintiff couples Shelia Robertson and Andrea Altmayer and Amber Beierle and Rachael Robertson applied for marriage licenses in Ada County, Idaho on November 6, 2013. Defendant Rich, through his authorized agent, refused their marriage license applications because they are same-sex couples.
37. In addition to stigmatizing a portion of Idaho’s population as second-class citizens, Idaho’s prohibition on marriage by same-sex couples, and its refusal to recognize valid marriages from other jurisdictions, deprive same-sex couples of critically important rights and responsibilities that married couples rely upon to secure their marriage commitment and safeguard their families. By way of example, and without limitation, same-sex partners are denied:
a. The right to have a minister or other state-authorized official solemnize their commitment to be married. I.C. § 32-406 (attaching criminal penalties to knowingly solemnizing a
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marriage of a couple who do not have a marriage license or who are not legally competent to be married in Idaho). b. The right to acquire an interest in community property as a spouse and to hold real property as community property with right of survivorship. I.C. §§ 15-6-401, 32-906. c. The right to be supported financially during marriage, enforced by criminal penalties for non-support. I.C. § 18-401(3). d. The right to be a presumed parent to a child born to a spouse during marriage, or within 300 days of the end of a marriage. I.C. § 16-2002(12) (a man married to a woman when a child is born is the presumed father). e. The right to be recognized as a spouse when petitioning to adopt a child born to a spouse. I.C. §§ 16-1503, 16-1506, 32-201, 32-202, 32-209. f. The right to have access to an ill spouse at the hospital and to make medical decisions for an ill or incapacitated spouse without requiring a written power of attorney. I.C. § 39-4504. g. The right to have priority to be appointed as a conservator in the event that a spouse becomes incapacitated. I.C. § 15-5-410(1)(c). h. The right to file a joint state income tax return as a married couple. I.C. § 60-3031. The Idaho Tax Commission recently interpreted Idaho law as requiring same sex couples who are lawfully married in another jurisdiction to file individual tax returns in Idaho after recalculating their joint federal return as if they were not married. Idaho Temporary Tax Commission Rule 805T (Draft 9/10/13); see also http://tax.idaho.gov/n-feed.cfm?idd=424. Additionally, on January 24, 2014, the Idaho House of Representatives approved a bill, HB 375, which would require married same-sex couples living in Idaho to file individual state tax returns even if their federal filing status is “married filing jointly.” The Bill next moves
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to the Senate and if passed, to Defendant Otter for signature to become Idaho law. Because the House has deemed the situation an emergency, if enacted, the law will be applied retroactively to January 1, 2014, and would create a special exception to Idaho statutes that otherwise require individuals to use the same filing status on their Idaho tax returns as they use on their federal returns. i. The right to spousal insurance coverage and benefits, when spousal benefits are otherwise available. j. A host of federal rights and responsibilities that pertain to married couples, including but not limited to those related to Social Security, Medicare, Medicaid, the Family Medical Leave Act, and the Veteran’s Administration. k. The right to a court-ordered equitable distribution of property upon the dissolution of the marriage. I.C. § 32-712. l. The right to recognition as a legal parent, which allows access to court-ordered custody, child support, and visitation upon the dissolution of the marriage. I.C. § 32-717. m. The right to have certain marital assets and property exempt from consideration when determining eligibility for long-term care benefits for a spouse under the Medicaid program. I.C. § 56-209e. n. The right to receive certain worker’s compensation benefits for a deceased spouse who has died on the job. I.C. § 72-1019(3)(b). o. The right to inherit a share of the estate of a spouse who dies without a will. I.C. § 15-2102. p. The right to receive an elective share of the estate of a spouse who died with a will. I.C. § 15-2-301.
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q. The right to a homestead allowance from a deceased spouse’s estate. I.C. § 15-2-402. r. The privilege not to have a spouse testify in a court proceeding about confidential
communications made during the marriage. Idaho Rule of Evidence 504; I.C. § 9-203. V. CLAIMS FOR RELIEF
First Claim For Relief: Idaho’s Ban on Marriage by Same-Sex Couples Deprives the Unmarried Plaintiffs of Their Rights to Due Process of Law under the Fourteenth Amendment to the United States Constitution 38. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 39. Plaintiffs state this cause of action against defendants in their official capacities for purposes of seeking declaratory and injunctive relief. 40. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 41. The Idaho Constitution, article III, section 28, Idaho Code section 32-201, and all other sources of state law that preclude marriage for same-sex couples violate the due process guarantee of the Fourteenth Amendment both facially and as applied to plaintiffs. 42. The right to marry the unique person of one’s choice and to direct the course of one’s life without undue government restriction is one of the fundamental rights protected by the Due Process Clause of the Fourteenth Amendment. Defendants’ actions to enforce the marriage ban directly and impermissibly infringe upon plaintiffs’ choice of whom to marry, interfering with a core, life-altering, and intimate personal choice. 43. The Due Process Clause also protects choices central to personal dignity, privacy, and autonomy, including each individual’s fundamental liberty interests in family integrity and
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intimate association. Defendants’ actions to enforce the marriage ban directly and impermissibly infringe upon plaintiffs’ deeply intimate, personal, and private decisions regarding family life, and preclude them from obtaining full liberty, dignity, privacy, and security for themselves, their family, and their parent-child bonds.
44. As Idaho’s Governor and chief executive officer, defendant Otter’s duties and actions to enforce Idaho’s exclusion of same-sex couples from marriage, including those actions taken pursuant to his responsibility for the policies and actions of the executive branch relating to, for example and without limitation, health insurance coverage, vital records, tax obligations, and state employee benefits programs, violate plaintiffs’ fundamental right to marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association under the Fourteenth Amendment to the United States Constitution.
45. As the Ada County Registrar, defendant Rich ensures compliance with Idaho’s exclusion of same-sex couples from marriage by, for example, refusing to issue marriage licenses to same-sex couples. This violates the plaintiffs’ fundamental right to marry and fundamental interests in liberty, dignity, privacy autonomy, family integrity, and intimate association under the Fourteenth Amendment to the United States Constitution.
46. Defendants cannot satisfy the requirements of the Due Process Clause because Idaho’s exclusion of same-sex couples from marriage is not rationally related to any legitimate governmental interest and thus cannot survive even rational basis review, much less the heightened level of scrutiny that applies to deprivation of the fundamental right to marry and interference with fundamental interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
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Second Claim for Relief: Idaho’s Failure to Recognize the Marriages of the Plaintiffs Who Are Lawfully Married in Other States Violates Their Rights to Due Process of Law under the Fourteenth Amendment to the United States Constitution 47. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 48. Plaintiffs Susan Latta and Traci Ehlers are lawfully married under laws of the state of California. 49. Plaintiffs Lori and Sharene Watsen are lawfully married under the laws of the state of New York. 50. When a marriage is authorized by a state, numerous rights, responsibilities, benefits, privileges, and protections attach to that status under state and federal law. 51. Once a couple enters into a valid marriage in a state, the couple has a liberty interest in their marital status that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendment, regardless of where the married couple chooses to live within the United States. 52. The Married Plaintiffs in this case have a protected liberty interest in their lawful marital status and in the comprehensive protections and obligations that marriage provides. 53. The Married Plaintiffs in this case also have a protected property interest in their lawful marital status and in the comprehensive protections and obligations that marriage provides. 54. By operation of Idaho Code section 32-209, and article III, section 28 of the Idaho Constitution, the lawful marriages of plaintiffs Susan Latta and Traci Ehlers and plaintiffs Lori and Sharene Watsen are treated as non-existent and without any legal effect or status in Idaho. Idaho law effectively strips these plaintiffs of a valuable and fundamental legal status that has been conferred on them by a sister state and deems them legal strangers to each other.
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55. Accordingly, Idaho’s refusal to recognize the valid out-of-state marriages of these plaintiffs impermissibly deprives them of their fundamental liberty and property interests in their marriages and the comprehensive protections afforded by marriage in violation of the Fourteenth Amendment’s Due Process Clause.
56. Moreover, Idaho’s refusal to recognize the valid out-of-state marriages of the Unmarried Plaintiffs also impermissibly burdens and interferes with their exercise of the fundamental right to marry in violation of the Fourteenth Amendment’s Due Process Clause.
57. Defendants' deprivation of these plaintiffs’ constitutional rights under color of state law violates 42 U.S.C. § 1983.
58. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause them irreparable harm.
59. The Married Plaintiffs are entitled to declaratory and injunctive relief on this basis. Third Claim For Relief: Idaho’s Ban on Marriage by Same-Sex Couples Deprives the Unmarried Plaintiffs of Their Rights to Equal Protection of the Laws under the Fourteenth Amendment to the United States Constitution 60. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 61. Plaintiffs state this cause of action against defendants in their official capacities for purposes of seeking declaratory and injunctive relief. 62. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 63. Idaho Constitution, article III, section 28 and Idaho Code sections 32-201 and 32209 and all other sources of state law that preclude marriage by same-sex couples violate the equal
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protection guarantee of the Fourteenth Amendment both facially and as applied to plaintiffs. The conduct of defendants in enforcing these laws violates the right of plaintiffs to equal protection by discriminating impermissibly on the basis of sexual orientation and sex.
64. As Idaho’s Governor, defendant Otter is charged as its chief executive officer with duties and actions to enforce Idaho’s exclusion of same-sex couples from marriage, including without limitation those actions taken pursuant to his responsibility for the policies and actions of the executive branch relating to, for example, health insurance coverage, vital records, tax obligations, and state employee benefits programs. Such enforcement of Idaho’s exclusion of same-sex couples from marriage violates plaintiffs’ constitutional rights to equal treatment, without regard to sexual orientation or sex, under the Fourteenth Amendment to the United States Constitution.
65. As the Ada County Registrar, defendant Rich ensures compliance with Idaho’s laws barring same-sex couples from marriage by, for example, denying same-sex couples marriage licenses. This violates the constitutional rights to equal treatment of plaintiffs Andrea Altmayer and Shelia Robertson and plaintiffs Amber Beierle and Rachael Robertson.
66. Idaho’s exclusion of same-sex couples from marriage, and defendants’ actions to enforce that exclusion, deny same-sex couples equal dignity and respect, and deprive their families of a critical safety net of rights and responsibilities. These laws brand same-sex couples and their children as second-class citizens through government-imposed stigma and foster private bias and discrimination, by instructing all persons with whom same-sex couples interact, including their own children, that their relationships and families are less worthy than others. Idaho’s exclusion of same-sex couples from marriage and defendants’ actions reflect moral disapproval and animus toward same-sex couples.
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67. Same-sex couples such as the plaintiff couples are similar to opposite-sex couples in all of the characteristics relevant to marriage. Committed same-sex couples make the same commitment to one another as other couples. They build their lives together, plan their futures together, and hope to grow old together, caring for one another physically, emotionally and financially.
68. The Unmarried Plaintiffs seek to marry for the same types of reasons, and to provide the same legal shelter to their families, as different-sex spouses.
69. Like many other couples, same-sex couples are often parents raising children together. Three of the four named plaintiff couples are raising children together.
70. Plaintiffs and their children are equally worthy of the tangible rights and responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on different-sex couples and their children. For the many children being raised by same-sex couples, the tangible resources and societal esteem that marriage confers on families is no less precious than for children of different-sex couples.
A. Discrimination Based on Sexual Orientation 71. Idaho’s laws barring same-sex couples from marriage target same-sex Idaho couples as a class by excluding them from marriage or any other form of relationship recognition on the basis of sexual orientation. 72. Laws that discriminate based on sexual orientation are subject to heightened equal protection scrutiny. See SmithKline Beecham Corp. v. Abbott Laboratories, Nos. 11–17357, 11– 17373, 2014 WL 211807, *9 (9th Cir. Jan. 21, 2014). 73. Lesbians and gay men have suffered a long and painful history of discrimination in Idaho and across the United States. Sexual orientation bears no relation to an individual’s ability to
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perform in or contribute to society. Sexual orientation is a core, defining trait that is so fundamental to one’s identity and autonomy that a person may not legitimately be required to abandon or change it (even if that were possible) as a condition of equal treatment under the law.
74. Lesbian, gay, and bisexual persons are a discrete and insular minority, and strong ongoing prejudice against them continues to seriously curtail the political processes that might ordinarily be relied upon to protect them. In Idaho, lesbian, gay, and bisexual persons lack any statutory protection against discrimination and can be openly and legally discriminated against in all arenas, including employment, public accommodations, and housing. Idaho’s constitutional amendment excluding same-sex couples from marriage and banning any form of relationship recognition other than marriage is discrimination based upon sexual orientation and is unlawful under the Fourteenth Amendment to the United States Constitution as it denies same-sex couples equal protection under the laws of Idaho.
75. The exclusion of same-sex couples from marriage based on sexual orientation cannot survive heightened scrutiny under the Equal Protection Clause because the State of Idaho cannot offer an exceedingly persuasive showing that the exclusion is substantially related to the achievement of any important governmental objective. Moreover, because the exclusion of samesex couples from marriage does not serve any legitimate government interest, the exclusion violates the Equal Protection Clause even under rational basis review.
B. Discrimination Based on Sex 76. Idaho’s exclusion of same-sex couples from marriage discriminates against plaintiffs on the basis of sex, barring plaintiffs from marriage solely because each of the plaintiffs wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of the Idaho’s laws, which restrict marriage to “a man and a woman.” Idaho Const. art. III, § 28.
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77. Because of these sex-based classifications, Andrea Altmayer is precluded from marrying her devoted life partner because she is a woman and not a man; were Andrea Altmayer a man, she could marry Shelia Robertson. Likewise, Amber Beierle is unable to marry Rachael Robertson because Amber is a woman rather than a man.
78. Idaho’s exclusion of same-sex couples from marriage also serves the impermissible purpose of enforcing and perpetuating sex stereotypes by excluding plaintiffs from marriage, because plaintiffs have failed to conform to sex-based stereotypes that women should be attracted to, form intimate relationships with, and marry men, not other women, and that men should be attracted to, form intimate relationships with, and marry women, not other men.
79. Given that there are no longer legal distinctions between the duties of husbands and wives under Idaho law, there is no basis for the sex-based eligibility requirements for marriage.
80. The exclusion of plaintiffs from marriage based on their sex and the enforcement of gender-based stereotypes cannot survive the heightened scrutiny required for sex-based discrimination, nor is it rationally related to any legitimate governmental purpose.
C. Discrimination With Respect to Fundamental Rights and Liberty Interests Secured by the Due Process Clause
81. Idaho’s exclusion of same-sex couples from marriage discriminates against plaintiffs with respect to the exercise of the fundamental right to marry the person of one’s choice, and with respect to their liberty interests in personal autonomy, and family integrity, association and dignity. Such discrimination is subject to heightened scrutiny. Idaho’s exclusion of same-sex couples cannot survive such scrutiny, and indeed cannot survive even rational basis review.
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Fourth Claim for Relief: Idaho’s Failure to Recognize the Marriages of the Plaintiffs Who Are Lawfully Married in Other States Violates Their Rights to Equal Protection of the Laws under the Fourteenth Amendment to the United States Constitution 82. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 83. Idaho has a long history of respecting marriages that were validly entered into in other states, and affording those marriages all of the rights and privileges of an Idaho marriage. But in 1996, and again in 2006, it singled out the legal marriages of same-sex couples in order to exclude them from recognition and to deny the spouses in such marriages any of the rights, protections, and responsibilities of marriage. 84. Idaho’s refusal to recognize the lawful marriages of the Married Plaintiffs discriminates against the class of legally married persons and also discriminates against the Married Plaintiffs based on sexual orientation, sex, and with respect to the exercise of the fundamental right to marry the person of one’s choice and fundamental liberty interests in personal autonomy, dignity, privacy, family integrity, and intimate association. 85. Idaho’s laws singling out legally married same-sex couples in order to exclude their marriages from recognition cannot survive heightened scrutiny under the Equal Protection Clause because the State of Idaho cannot offer an exceedingly persuasive showing that those laws are substantially related to the achievement of any important government objective. See SmithKline Beecham Corp. v. Abbott Laboratories, Nos. 11–17357, 11–17373, 2014 WL 211807, *9 (9th Cir. Jan. 21, 2014). Moreover, because excluding legally married same-sex couples from recognition does not serve any legitimate government interest, those laws violate the Equal Protection Clause even under rational basis review.
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86. While the states have traditionally had the authority to regulate marriage, that authority “must respect the constitutional rights of persons,” see Windsor, 133 S. Ct. at 2691, and it is “subject to constitutional guarantees,” see id.
87. The principal purpose and effect of Idaho’s non-recognition laws “is to identify a subset of state-sanctioned marriages and make them unequal.” Windsor, 133 S. Ct. at 2694. These laws “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of [other] States.” Id. at 2693.
88. Idaho’s laws excluding legally married same-sex couples from recognition are subject to heightened scrutiny. But even under rational basis review, a purpose to harm a minority class of persons cannot justify disparate treatment of that group, as this is not a legitimate governmental interest. Romer v. Evans, 517 U.S. 620, 635 (1996); Windsor, 133 S. Ct. at 2693.
89. Accordingly, the enforcement of Idaho laws that refuse to recognize the lawful marriages of the Married Plaintiffs, relegating them to a second and unequal class of married couples, violates the equal protection rights of those plaintiffs. They are entitled to declaratory and injunctive relief on this basis.
Declaratory and Injunctive Relief 90. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this complaint as though fully set forth herein. 91. This case presents an actual controversy because defendants’ present and ongoing violation of plaintiffs’ rights to due process and equal protection subject plaintiffs to serious and immediate harms, warranting the issuance of a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and the Federal Rules of Civil Procedure 57 and 65.
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92. Plaintiffs seek injunctive relief to protect their constitutional rights and avoid the injuries described above. A favorable decision enjoining defendants would redress and prevent the irreparable injuries to plaintiffs which have been identified, for which plaintiffs have no adequate remedy at law or in equity. VI. PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court enter judgment:
A. Declaring that the provisions of and enforcement by defendants of Idaho’s laws excluding same-sex couples from marriage, including article III, section 28 of Idaho’s Constitution, Idaho Code section 32-201, and any other sources of state law that exclude same-sex couples from marrying violate the Unmarried Plaintiffs’ rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution;
B. Declaring that the provisions of and enforcement by defendants of Idaho’s laws barring recognition of the valid out-of-state marriages of the Married Plaintiffs same-sex couples, including article III, section 28 of Idaho’s Constitution, Idaho Code section 32-209, and any other sources of state law that refuse recognition to the marriages of the plaintiffs who validly married a same-sex spouse in another jurisdiction violate plaintiffs’ rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution;
C. Permanently enjoining enforcement by defendants of article III, section 28 of Idaho’s Constitution, Idaho Code sections 32-201 and 32-209, and any other sources of state law to exclude the Unmarried Plaintiffs from marriage or to refuse recognition of the marriages of the Married Plaintiffs;
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D. Requiring defendants in their official capacities to permit issuance of marriage licenses to
the Unmarried Plaintiffs, pursuant to the same restrictions and limitations applicable to
different-sex couples, and to recognize the marriages validly entered into by the Married
Plaintiffs;
E. Awarding plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter
alia, 42 U.S.C. § 1988 and other applicable laws; and
F. Granting such other and further relief as the Court deems just and proper.
G. The declaratory and injunctive relief requested in this action is sought against each
defendant; against each defendant’s officers, employees, and agents; and against all persons
acting in active concert or participation with any defendant, or under any defendant’s
supervision, direction, or control.
DATED: January 29, 2014
Respectfully submitted,
_______________/s/_______________________ Deborah A. Ferguson, ISB No. 5333 The Law Office of Deborah A. Ferguson, PLLC 202 N. 9th Street, Suite 401 C Boise, Idaho 83702 Tel.: (208) 484-2253 d@fergusonlawmediation.com
Craig Harrison Durham, ISB No. 6428 Durham Law Office, PLLC 405 S. 8th Street, Ste. 372 Boise, ID 83702 Tel.: (208) 345-5183 craig@chdlawoffice.com
National Center for Lesbian Rights Shannon P. Minter* Christopher F. Stoll* 870 Market Street, Suite 370
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Case 1:13-cv-00482-CWD Document 42 Filed 01/29/14 Page 29 of 30 San Francisco, California 94102 Tel.: (415) 392-6257 sminter@nclrights.org cstoll@nclrights.org Attorneys for Plaintiffs * Admitted Pro Hac Vice
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of January, 2014, I electronically filed the PLAINTIFFS’ FIRST AMENDED COMPLAINT with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following Persons:
Thomas Perry Cally A. Younger Office of the Governor P.O. Box 83720 Boise, Idaho 83720 Steven L. Olsen Clay R. Smith W. Scott Zanzig Deputy Attorneys General 954 W. Jefferson Street, 2nd Floor P.O. Box 83720 Boise, ID 83720
/s/ Deborah A. Ferguson
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FOR PUBLICATION

FILED UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OCT 07 2014

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

SUSAN LATTA; TRACI EHLERS; LORI WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA ALTMAYER; AMBER BEIERLE; RACHAEL ROBERTSON,
Plaintiffs - Appellees,

No. 14-35420 D.C. No. 1:13-cv-00482-CWD
OPINION

v.

C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity,

Defendant - Appellant,

And

CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity,

Defendant,

STATE OF IDAHO,

Intervenor-Defendant.

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SUSAN LATTA; TRACI EHLERS; LORI WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA ALTMAYER; AMBER BEIERLE; RACHAEL ROBERTSON,

No. 14-35421 D.C. No. 1:13-cv-00482-CWD

Plaintiffs - Appellees,

v.

C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity,

Defendant,

And

CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity,

Defendant - Appellant,

STATE OF IDAHO,

Intervenor-Defendant Appellant.

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Appeal from the United States District Court for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding

BEVERLY SEVCIK; MARY BARANOVICH; ANTIOCO CARRILLO; THEODORE SMALL; KAREN GOODY; KAREN VIBE; FLETCHER WHITWELL; GREG FLAMER; MIKYLA MILLER; KATRINA MILLER; ADELE TERRANOVA; TARA NEWBERRY; CAREN CAFFERATAJENKINS; FARRELL CAFFERATAJENKINS; MEGAN LANZ; SARA GEIGER,

No. 12-17668 D.C. No. 2:12-cv-00578-RCJ-PAL
OPINION

Plaintiffs - Appellants,

v.

BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County, Nevada; AMY HARVEY, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada; ALAN GLOVER, in his official capacity as the Clerk Recorder for Carson City, Nevada,

Defendants - Appellees,

And

COALITION FOR THE PROTECTION

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OF MARRIAGE,
Intervenor-Defendant Appellee.
Appeal from the United States District Court for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted September 8, 20141 San Francisco, California
Before: REINHARDT, GOULD, and BERZON, Circuit Judges.
Opinion by Judge Reinhardt:
Both Idaho and Nevada have passed statutes and enacted constitutional
amendments preventing same-sex couples from marrying and refusing to recognize
same-sex marriages validly performed elsewhere.2 Plaintiffs, same-sex couples
1A disposition in Jackson v. Abercrombie, Nos. 12-16995 & 12-16998, is forthcoming separately.
2Idaho Const. Art. III, § 28 (“A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”); Idaho Code §§ 32-201 (“Marriage is a personal relation arising out of a civil contract between a man and a woman . . . .”), 32-202 (identifying as qualified to marry “[a]ny unmarried male . . . and unmarried female” of a certain age and “not otherwise disqualified.”); 32-209 (“All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriage, and marriages entered into under the laws of another state or
(continued...)
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who live in Idaho and Nevada and wish either to marry there or to have marriages entered into elsewhere recognized in their home states, have sued for declaratory relief and to enjoin the enforcement of these laws. They argue that the laws are subject to heightened scrutiny because they deprive plaintiffs of the fundamental due process right to marriage, and because they deny them equal protection of the law by discriminating against them on the bases of their sexual orientation and their sex. In response, Governor Otter, Recorder Rich, and the State of Idaho, along with the Nevada intervenors, the Coalition for the Protection of Marriage (“the Coalition”), argue that their laws survive heightened scrutiny, primarily because the states have a compelling interest in sending a message of support for the institution of opposite-sex marriage. They argue that permitting same-sex marriage will seriously undermine this message, and contend that the institution of oppositesex marriage is important because it encourages people who procreate to be responsible parents, and because opposite-sex parents are better for children than same-sex parents.

2(...continued) country with the intent to evade the prohibitions of the marriage laws of this state.”); Nev. Const. Art. 1, § 21 (“Only a marriage between a male and female person shall be recognized and given effect in this state.”); Nev. Rev. Stat. § 122.020(1) (“[A] male and female person . . . may be joined in marriage.”).
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Without the benefit of our decision in SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), reh’g en banc denied, 759 F.3d 990 (9th Cir. 2014), the Sevcik district court applied rational basis review and upheld Nevada’s laws. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). After we decided SmithKline, the Latta district court concluded that heightened scrutiny applied to Idaho’s laws because they discriminated based on sexual orientation, and invalidated them.3 Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at *14–18 (D. Idaho May 13, 2014). We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays4 who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.
I.

3The Latta court also found a due process violation because, it concluded, the laws curtailed plaintiffs’ fundamental right to marry. Latta v. Otter, No. 1:13CV-00482-CWD, 2014 WL 1909999, at *9–13 (D. Idaho May 13, 2014).
4We have recognized that “[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005), vacated, 547 U.S. 183 (2006).
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Before we reach the merits, we must address two preliminary matters: first, whether an Article III case or controversy still exists in Sevcik, since Nevada’s government officials have ceased to defend their laws’ constitutionality; and second, whether the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is controlling precedent that precludes us from considering plaintiffs’ claims.
A. Governor Sandoval and Clerk-Recorder Glover initially defended Nevada’s laws in the district court. However, they have since withdrawn their answering briefs from consideration by this Court, in light of our decision in SmithKline, 740 F.3d at 480-81 (holding heightened scrutiny applicable). Governor Sandoval now asserts that United States v. Windsor, 133 S. Ct. 2675 (2013), “signifies that discrimination against same-sex couples is unconstitutional,” and that “[a]ny uncertainty regarding the interpretation of Windsor was . . . dispelled” by SmithKline. As a result, we have not considered those briefs, and the Governor and Clerk-Recorder were not heard at oral argument, pursuant to Fed. R. App. P. 31(c). The Nevada Governor and Clerk Recorder remain parties, however, and continue to enforce the laws at issue on the basis of a judgment in their favor below. As a result, we are still presented with a live case or controversy in need of
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resolution. Despite the fact that Nevada “largely agree[s] with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact the [state] intend[s] to enforce the challenged law against that party.” Windsor, 133 S. Ct. at 2686–87 (citation and quotation marks omitted). Although the state defendants withdrew their briefs, we are required to ascertain and rule on the merits arguments in the case, rather than ruling automatically in favor of plaintiffs-appellants. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 887 n.7 (9th Cir. 2010) (“[Defendant’s] failure to file a brief does not compel a ruling in [plaintiff’s] favor, given that the only sanction for failure to file an answering brief is forfeiture of oral argument.”).
There remains a question of identifying the appropriate parties to the case before us—specifically, whether we should consider the arguments put forward by the Nevada intervenor, the Coalition for the Protection of Marriage. As plaintiffs consented to their intervention in the district court—at a point in the litigation before Governor Sandoval and Clerk-Recorder Glover indicated that they would no longer argue in support of the laws—and continue to so consent, the propriety of the intervenor’s participation has never been adjudicated.
Because the state defendants have withdrawn their merits briefs, we face a situation akin to that in Windsor. There, a case or controversy remained between
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Windsor and the United States, which agreed with her that the Defense of Marriage Act was unconstitutional but nonetheless refused to refund the estate tax she had paid. Here as there, the state defendants’ “agreement with [plaintiffs’] legal argument raises the risk that instead of a real, earnest and vital controversy, the Court faces a friendly, non-adversary proceeding . . . .” 133 S. Ct. at 2687 (citations and quotation marks omitted). Hearing from the Coalition helps us “to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). As a result, we consider the briefs and oral argument offered by the Coalition, which, Governor Sandoval believes, “canvass the arguments against the Appellants’ position and the related policy considerations.”5
B. Defendants argue that we are precluded from hearing this case by Baker, 409 U.S. 810. In that case, the Minnesota Supreme Court had rejected due process and equal protection challenges to a state law limiting marriage to a man and a woman.

5For the sake of convenience, we refer throughout this opinion to arguments advanced generally by “defendants”; by this we mean the parties that continue actively to argue in defense of the laws—the Idaho defendants and the Nevada intervenor—and not Governor Sandoval and Clerk-Recorder Glover.
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191 N.W.2d 185, 186–87 (Minn. 1971). The United States Supreme Court summarily dismissed an appeal from that decision “for want of a substantial federal question.” Baker, 409 U.S. at 810. Such summary dismissals “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions,” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam), until “doctrinal developments indicate otherwise,” Hicks v. Miranda, 422 U.S. 332, 343–44 (1975) (citation and quotation marks omitted). Defendants contend that this decades-old case is still good law, and therefore bars us from concluding that same-sex couples have a due process or equal protection right to marriage.
However, “subsequent decisions of the Supreme Court” not only “suggest” but make clear that the claims before us present substantial federal questions.6 Wright v. Lane Cnty. Dist. Ct., 647 F.2d 940, 941 (9th Cir. 1981); see Windsor,

6To be sure, the Court made explicit in Windsor and Lawrence that it was not deciding whether states were required to allow same-sex couples to marry. Windsor, 133 S. Ct. at 2696 (“This opinion and its holding are confined to those lawful marriages [recognized by states].”); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”). The Court did not reach the question we decide here because it was not presented to it. Although these cases did not tell us the answers to the federal questions before us, Windsor and Lawrence make clear that these are substantial federal questions we, as federal judges, must hear and decide.
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133 S. Ct. at 2694–96 (holding unconstitutional under the Fifth Amendment a federal law recognizing opposite-sex-sex but not same-sex marriages because its “principal purpose [was] to impose inequality, not for other reasons like governmental efficiency”); Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (recognizing a due process right to engage in intimate conduct, including with a partner of the same sex); Romer v. Evans, 517 U.S. 620, 631–34 (1996) (invalidating as an irrational denial of equal protection a state law barring protection of lesbians and gays under state or local anti-discrimination legislation or administrative policies). Three other circuits have issued opinions striking down laws like those at issue here since Windsor, and all agree that Baker no longer precludes review. Accord Baskin v. Bogan, No. 14-2386, 2014 WL 4359059, at *7 (7th Cir. Sept. 4, 2014); Bostic v. Schaefer, 760 F.3d 352, 373–75 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193, 1204–08 (10th Cir. 2014). As any observer of the Supreme Court cannot help but realize, this case and others like it present not only substantial but pressing federal questions.
II. Plaintiffs are ordinary Idahoans and Nevadans. One teaches deaf children. Another is a warehouse manager. A third is an historian. Most are parents. Like all human beings, their lives are given greater meaning by their intimate, loving,
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committed relationships with their partners and children. “The common vocabulary of family life and belonging that other[s] [] may take for granted” is, as the Idaho plaintiffs put it, denied to them—as are all of the concrete legal rights, responsibilities, and financial benefits afforded opposite-sex married couples by state and federal law7—merely because of their sexual orientation.

7Nevada, unlike Idaho, has enacted a domestic partnership regime. Since 2009, both same-sex and opposite-sex couples have been allowed to register as domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010 et seq. Domestic partners are generally treated like married couples for purposes of rights and responsibilities—including with respect to children—under state law. However, domestic partners are denied nearly all of the benefits afforded married couples under federal law—including, since Windsor, same-sex couples married under state law.
The fact that Nevada has seen fit to give same-sex couples the opportunity to enjoy the benefits afforded married couples by state law makes its case for the constitutionality of its regime even weaker than Idaho’s. With the concrete differences in treatment gone, all that is left is a message of disfavor. The Supreme Court has “repeatedly emphasized [that] discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants,” can cause serious “injuries to those who are denied equal treatment solely because of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728, 739–40 (1984) (citation omitted).
If Nevada were concerned, as the Coalition purports it to be, that state recognition of same-sex unions would make the institution of marriage “genderless” and thereby undermine opposite-sex spouses’ commitments to each other and their children, it would be ill-advised to permit opposite-sex couples to participate in the alternative domestic partnership regime it has established. However, Nevada does just that.
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Defendants argue that their same-sex marriage bans do not discriminate on the basis of sexual orientation, but rather on the basis of procreative capacity. Effectively if not explicitly, they assert that while these laws may disadvantage same-sex couples and their children, heightened scrutiny is not appropriate because differential treatment by sexual orientation is an incidental effect of, but not the reason for, those laws. However, the laws at issue distinguish on their face between opposite-sex couples, who are permitted to marry and whose out-of-state marriages are recognized, and same-sex couples, who are not permitted to marry and whose marriages are not recognized. Whether facial discrimination exists “does not depend on why” a policy discriminates, “but rather on the explicit terms of the discrimination.” Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991). Hence, while the procreative capacity distinction that defendants seek to draw could in theory represent a justification for the discrimination worked by the laws, it cannot overcome the inescapable conclusion that Idaho and Nevada do discriminate on the basis of sexual orientation.
In SmithKline, we held that classifications on the basis of sexual orientation are subject to heightened scrutiny. 740 F.3d at 474. We explained:

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In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.
Id. at 481.
Windsor, we reasoned, applied heightened scrutiny in considering not the
Defense of Marriage Act’s hypothetical rationales but its actual, motivating
purposes.8 SmithKline, 740 F.3d at 481. We also noted that Windsor declined to
adopt the strong presumption in favor of constitutionality and the heavy deference
to legislative judgments characteristic of rational basis review. Id. at 483. We
concluded:
Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or secondclass status.
Id.

8Although as discussed in the text, SmithKline instructs us to consider the states’ actual reasons, and not post-hoc justifications, for enacting the laws at issue, these actual reasons are hard to ascertain in this case. Some of the statutory and constitutional provisions before us were enacted by state legislatures and some were enacted by voters, and we have been informed by all parties that the legislative histories are sparse. We shall assume, therefore, that the justifications offered in defendants’ briefs were in fact the actual motivations for the laws.
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We proceed by applying the law of our circuit regarding the applicable level of scrutiny. Because Idaho and Nevada’s laws discriminate on the basis of sexual orientation, that level is heightened scrutiny.
III. Defendants argue that their marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting. Governor Otter argues that same-sex marriage “teaches everyone—married and unmarried, gay and straight, men and women, and all the children—that a child knowing and being reared by her mother and father is neither socially preferred nor officially encouraged.” Governor Otter seeks to have the state send the opposite message to all Idahoans: that a child reared by its biological parents is socially preferred and officially encouraged. This argument takes two related forms: First, defendants make a “procreative channeling” argument: that the norms of opposite-sex marriage ensure that as many children as possible are raised by their married biological mothers and fathers. They claim that same-sex marriage will undermine those existing norms, which encourage people in opposite-sex relationships to place their children’s interests above their own and preserve intact family units, instead of pursuing their own emotional and sexual needs elsewhere. In short, they argue that allowing
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same-sex marriages will adversely affect opposite-sex marriage by reducing its appeal to heterosexuals, and will reduce the chance that accidental pregnancy will lead to marriage. Second, Governor Otter and the Coalition (but not the state of Idaho) argue that limiting marriage to opposite-sex couples promotes child welfare because children are most likely to thrive if raised by two parents of opposite sexes, since, they assert, mothers and fathers have “complementary” approaches to parenting.9 Thus, they contend, children raised by opposite-sex couples receive a better upbringing.
A. We pause briefly before considering the substance of defendants’ arguments to address the contention that their conclusions about the future effects of same-sex marriage on parenting are legislative facts entitled to deference. Defendants have not demonstrated that the Idaho and Nevada legislatures actually found the facts asserted in their briefs; even if they had, deference would not be warranted.

9These arguments are not novel. The Bipartisan Legal Advisory Group (BLAG) relied in part on similar contentions about procreative channeling and gender complementarity in its attempt to justify the federal Defense of Marriage Act, but the Court did not credit them. Brief on the Merits for Respondent BLAG at 44-49, Windsor, 133 S. Ct. 2675 (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 280 at *74–82.
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Unsupported legislative conclusions as to whether particular policies will have societal effects of the sort at issue in this case—determinations which often, as here, implicate constitutional rights—have not been afforded deference by the Court. To the contrary, we “retain[] an independent constitutional duty to review factual findings where constitutional rights are at stake. . . . Uncritical deference to [legislatures’] factual findings in these cases is inappropriate.” Gonzales v. Carhart, 550 U.S. 124, 165–66 (2007); see also Hodgson v. Minnesota, 497 U.S. 417, 450–55 (1990).
B. Marriage, the Coalition argues, is an “institution directed to certain great social tasks, with many of those involving a man and a woman united in the begetting, rearing, and education of children”; it is being “torn away,” they claim, “from its ancient social purposes and transformed into a government-endorsed celebration of the private desires of two adults (regardless of gender) to unite their lives sexually, emotionally, and socially for as long as those personal desires last.” Defendants struggle, however, to identify any means by which same-sex marriages will undermine these social purposes. They argue vehemently that same-sex marriage will harm existing and especially future opposite-sex couples and their

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children because the message communicated by the social institution of marriage will be lost.
As one of the Nevada plaintiffs’ experts testified, there is no empirical support for the idea that legalizing same-sex marriage would harm—or indeed, affect—opposite-sex marriages or relationships. That expert presented data from Massachusetts, a state which has permitted same-sex marriage since 2004, showing no decrease in marriage rates or increase in divorce rates in the past decade.10 See Amicus Brief of Massachusetts et al. 23–27; see also Amicus Brief of American Psychological Association et al. 8–13. It would seem that allowing couples who want to marry so badly that they have endured years of litigation to win the right to do so would reaffirm the state’s endorsement, without reservation, of spousal and parental commitment. From which aspect of same-sex marriages, then, will opposite-sex couples intuit the destructive message defendants fear? Defendants offer only unpersuasive suggestions.

10The Coalition takes issue with this conclusion, arguing that the effects of same-sex marriage might not manifest themselves for decades, because “something as massive and pervasive in our society and humanity as the man-woman marriage institution, like a massive ocean-going ship, does not stop or turn in a short space or a short time.” Given that the discriminatory impact on individuals because of their sexual orientation is so harmful to them and their families, such unsupported speculation cannot justify the indefinite continuation of that discrimination.
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First, they argue that since same-sex families will not include both a father and a mother, a man who has a child with a woman will conclude that his involvement in that child’s life is not essential. They appear to contend that such a father will see a child being raised by two women and deduce that because the state has said it is unnecessary for that child—who has two parents—to have a father, it is also unnecessary for his child to have a father. This proposition reflects a crass and callous view of parental love and the parental bond that is not worthy of response. We reject it out of hand. Accord Kitchen, 755 F.3d at 1223 (concluding that it was “wholly illogical” to think that same-sex marriage would affect opposite-sex couples’ choices); Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 998 (N.D. Cal. 2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal. 2010).
Defendants also propose another possible means by which endorsing samesex marriage could discourage opposite-sex marriage, albeit less explicitly: opposite-sex couples who disapprove of same-sex marriage will opt less frequently or enthusiastically to participate in an institution that allows same-sex couples to participate. However, the fear that an established institution will be undermined due to private opposition to its inclusive shift is not a legitimate basis for retaining the status quo. In United States v. Virginia, the Court explained:
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The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “selffulfilling prophec[ies],” see Mississippi Univ. for Women [v. Hogan], 458 U.S. [718,] 730 [(1982)], once routinely used to deny rights or opportunities. . . . A like fear, according to a 1925 report, accounted for Columbia Law School’s resistance to women’s admission, although “[t]he faculty . . . never maintained that women could not master legal learning.11 . . . No, its argument has been . . . more practical. If women were admitted to the Columbia Law School, [the faculty] said, then the choicer, more manly and red-blooded graduates of our great universities would go to the Harvard Law School!” The Nation, Feb. 18, 1925, p. 173.
518 U.S. 515, 542–44 (1996); see also Palmore v. Sidoti, 466 U.S. 429, 433 (1984)
(“The Constitution cannot control such prejudices but neither can it tolerate them.
Private biases may be outside the reach of the law, but the law cannot, directly or
indirectly, give them effect.”). The Sevcik district court thus erred in crediting the
argument that “a meaningful percentage of heterosexual persons would cease to
value the civil institution as highly as they previously had and hence enter it less
frequently . . . because they no longer wish to be associated with the civil
institution as redefined,” both because defendants failed to produce any support for

11Likewise, Governor Otter assures us that Idaho’s laws were not motivated by judgments about the relative emotional commitments of same-sex and oppositesex couples; his argument is about an “ethos,” he claims, and so is not weakened by the fact that same-sex couples may, as he admits, be just as child-oriented.
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that prediction, and because private disapproval is a categorically inadequate justification for public injustice. Sevcik, 911 F. Supp. 2d at 1016.
Same-sex marriage, Governor Otter asserts, is part of a shift towards a consent-based, personal relationship model of marriage, which is more adultcentric and less child-centric.12 The Latta district court was correct in concluding, however, that “marriage in Idaho is and has long been a designedly consent-based institution. . . . Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision” of conjugal marriage. Latta, 2014 WL 1909999, at *23.
Idaho focuses on another aspect of the procreative channeling claim. Because opposite-sex couples can accidentally conceive (and women may choose not to terminate unplanned pregnancies), so the argument goes, marriage is important because it serves to bind such couples together and to their children. This makes some sense. Defendants’ argument runs off the rails, however, when they suggest that marriage’s stabilizing and unifying force is unnecessary for same-

12He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.
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sex couples, because they always choose to conceive or adopt a child.13 As they
themselves acknowledge, marriage not only brings a couple together at the initial
moment of union; it helps to keep them together, “from [that] day forward, for
better, for worse, for richer, for poorer, in sickness and in health.” Raising children
is hard; marriage supports same-sex couples in parenting their children, just as it
does opposite-sex couples.
Moreover, marriage is not simply about procreation, but as much about
expressions of emotional support and public commitment . . . . [M]any religions recognize marriage as having spiritual significance; . . . therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication . . . . [M]arital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety,
13As Judge Richard Posner put it, bluntly:
[These states] think[] that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured . . . to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
Baskin, 2014 WL 4359059, at *10 (7th Cir. Sept. 4, 2014). Idaho and Nevada’s laws are both over- and under-inclusive with respect to
parental fitness. A man and a woman who have been convicted of abusing their children are allowed to marry; same-sex partners who have been adjudicated to be fit parents in an adoption proceeding are not.
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inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). Turner v. Safley, 482 U.S. 78, 95–96 (1987) (recognizing that prisoners, too, enjoyed the right to marry, even though they were not allowed to have sex, and even if they did not already have children). Although many married couples have children, marriage is at its essence an “association that promotes . . . a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (recognizing that married couples have a privacy right to use contraception in order to prevent procreation). Just as “it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” Lawrence, 539 U.S. at 567, it demeans married couples—especially those who are childless—to say that marriage is simply about the capacity to procreate. Additionally, as plaintiffs argue persuasively, Idaho and Nevada’s laws are grossly over- and under-inclusive with respect to procreative capacity. Both states give marriage licenses to many opposite-sex couples who cannot or will not reproduce—as Justice Scalia put it, in dissent, “the sterile and the elderly are

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allowed to marry,” Lawrence, 539 U.S. at 604–05—but not to same-sex couples who already have children or are in the process of having or adopting them.14
A few of Idaho and Nevada’s other laws, if altered, would directly increase the number of children raised by their married biological parents. We mention them to illustrate, by contrast, just how tenuous any potential connection between a ban on same-sex marriage and defendants’ asserted aims is. For that reason alone, laws so poorly tailored as those before us cannot survive heightened scrutiny.
If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by

14Defendants acknowledge this, but argue that it would be unconstitutionally intrusive to determine procreative capacity or intent for opposite-sex couples, and that the states must therefore paint with a broad brush to ensure that any couple that could possibly procreate can marry. However, Idaho and Nevada grant the right to marry even to those whose inability to procreate is obvious, such as the elderly.
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single people. Neither state does. See Idaho Code §§ 39-5401 et seq.; Nev. Rev. Stat. §§ 122A.200(1)(d), 126.051(1)(a), 126.510 et seq., 127.040; see also Carla Spivack, The Law of Surrogate Motherhood in the United States, 58 Am. J. Comp. L. 97, 102 & n.15 (2010); Idaho is a destination for surrogacy, KTVB.com (Dec. 5, 2013).
In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada materially harm and demean same-sex couples and their children.15 Windsor, 133 S. Ct. at 2694. Denying children resources and stigmatizing their families on this basis is “illogical and unjust.” Plyler v. Doe, 457 U.S. 202, 220 (1982) (citation omitted). It is counterproductive, and it is unconstitutional.
C.

15Idaho attempts to rebut testimony by the Idaho plaintiffs’ expert that children of unmarried same-sex couples do just as well as those of married opposite-sex couples; the state mistakenly argues that this evidence shows that the children of same-sex couples are not harmed when the state withholds from their parents the right to marry. A more likely explanation for this expert’s findings is that when same-sex couples raise children, whether adopted or conceived through the use of assisted reproductive technology, they have necessarily chosen to assume the financial, temporal, and emotional obligations of parenthood. This does not lead, however, to the conclusion that these children, too, would not benefit from their parents’ marriage, just as children with opposite-sex parents do.
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Governor Otter and the Coalition, but not the state of Idaho, also argue that
children should be raised by both a male parent and a female parent. They assert
that their marriage laws have “recognized, valorized and made normative the roles
of ‘mother’ and ‘father’ and their uniting, complementary roles in raising their
offspring,” and insist that allowing same-sex couples to marry would send the
message that “men and women are interchangeable [and that a] child does not need
a mother and a father.”
However, as we explained in SmithKline, Windsor “forbid[s] state action
from ‘denoting the inferiority’” of same-sex couples. 740 F.3d at 482 (citing
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954)).
It is the identification of such a class by the law for a separate and lesser public status that “make[s] them unequal.” Windsor, 133 S. Ct. at 2694. DOMA was “practically a brand upon them, affixed by the law, an assertion of their inferiority.” Strauder v. West Virginia, 100 U.S. 303, 308 (1879). Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose.
SmithKline, 740 F.3d at 482. Windsor makes clear that the defendants’ explicit
desire to express a preference for opposite-sex couples over same-sex couples is a
categorically inadequate justification for discrimination. Expressing such a
preference is precisely what they may not do.

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Defendants’ argument is, fundamentally, non-responsive to plaintiffs’ claims to marriage rights; instead, it is about the suitability of same-sex couples, married or not, as parents, adoptive or otherwise. That it is simply an ill-reasoned excuse for unconstitutional discrimination is evident from the fact that Idaho and Nevada already allow adoption by lesbians and gays. The Idaho Supreme Court has determined that “sexual orientation [is] wholly irrelevant” to a person’s fitness or ability to adopt children. In re Adoption of Doe, 326 P.3d 347, 353 (Idaho 2014). “In a state where the privilege of becoming a child’s adoptive parent does not hinge on a person’s sexual orientation, it is impossible to fathom how hypothetical concerns about the same person’s parental fitness could possibly relate to civil marriage.” Latta, 2014 WL 1909999, at *23. By enacting a domestic partnership law, Nevada, too, has already acknowledged that no harm will come of treating same-sex couples the same as opposite-sex couples with regard to parenting. Nev. Rev. Stat. § 122A.200(1)(d) affords same-sex domestic partners parenting rights identical to those of married couples, including those related to adoption, custody and visitation, and child support. See also St. Mary v. Damon, 309 P.3d 1027, 1033 (Nev. 2013) (en banc) (“Both the Legislature and this court have acknowledged that, generally, a child’s best interest is served by maintaining two actively involved parents. To that end, the Legislature has recognized that the children of
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same-sex domestic partners bear no lesser rights to the enjoyment and support of two parents than children born to married heterosexual parents.”).
To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in “family values.” In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.
Thus, we need not address the constitutional restraints the Supreme Court has long imposed on sex-role stereotyping, which may provide another potentially persuasive answer to defendants’ theory. See Virginia, 518 U.S. at 533 (explaining that justifications which “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females” are inadequate to survive heightened scrutiny); see also Caban v. Mohammed, 441 U.S. 380, 389 (1979) (rejecting the claim that “any universal difference between maternal and paternal relations at every phase of a child’s development” justified sex-based distinctions in adoption laws). We note, in addition, that defendants have offered no probative evidence in support of their “complementarity” argument.
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IV. Both the Idaho defendants and the Coalition advance a few additional justifications, though all are unpersuasive.16 First, they argue that the population of each state is entitled to exercise its democratic will in regulating marriage as it sees fit. Each state “has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.” Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J., concurring). True enough. But a primary purpose of the Constitution is to protect minorities from oppression by majorities. As Windsor itself made clear, “state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” 133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967)). Thus, considerations of federalism cannot carry the day for defendants. They must instead rely on the substantive arguments that we find lacking herein. Second, defendants argue that allowing same-sex couples to marry would threaten the religious liberty of institutions and people in Idaho and Nevada.
16None of the arguments advanced by other states in defense of their bans is any more persuasive. In particular, we agree with the Seventh Circuit that states may not “go slow” in extending to same-sex couples the right to marry; “it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying [if not proving] its fears; it has provided none.” Baskin, 2014 WL 4359059, at *16–17.
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Whether a Catholic hospital must provide the same health care benefits to its
employees’ same-sex spouses as it does their opposite-sex spouses, and whether a
baker is civilly liable for refusing to make a cake for a same-sex wedding, turn on
state public accommodations law, federal anti-discrimination law, and the
protections of the First Amendment.17 These questions are not before us. We
merely note that avoiding the enforcement of anti-discrimination laws that “serv[e]
compelling state interests of the highest order” cannot justify perpetuation of an
otherwise unconstitutionally discriminatory marriage regime. Bd. of Dirs. of
Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (citation omitted).
Third, the Coalition argues that Nevada’s ban is justified by the state’s
interest in protecting “the traditional institution of marriage.”18 Modern marriage
17See, e.g., Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M. 2012) (holding that a wedding photographer was liable for discrimination against a samesex couple under state public accommodations law, and that this law did not violate the First Amendment), cert. denied, 134 S. Ct. 1787 (2014). Nevada law currently prohibits discrimination based on sexual orientation in public accommodations, while Idaho law does not. Nev. Rev. Stat. §§ 651.050(3), 651.070; Dan Popkey, Idaho doesn’t protect gays from discrimination, but Otter says that does not make the state anti-gay, Idaho Statesman (Feb. 23, 2014).
We note also that an increasing number of religious denominations do sanctify same-sex marriages. Amicus Brief of Bishops of the Episcopal Church in Idaho et al. 8–9. Some religious organizations prohibit or discourage interfaith and interracial marriage, but it would obviously not be constitutional for a state to do so. Amicus Brief of the Anti-Defamation League et al. 23–25.
18This argument was not advanced to this Court by the Idaho defendants. 30

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regimes, however, have evolved considerably; within the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands. See generally Claudia Zaher, When A Woman's Marital Status Determined Her Legal Status: A Reserach Guide on the Common Law Doctrine of Coverture, 94 Law Libr. J. 459, 460–61 (2002) (“Under coverture, a wife simply had no legal existence. She became . . . ‘civilly dead.’”). Women lost their citizenship when they married foreign men. See Kristin Collins, When Father’s Rights Are Mothers’ Duties, 109 Yale L.J. 1669, 1686–89 (2000). (In fact, women, married or not, were not allowed to serve on juries or even to vote. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 131–35 (1994).). Before no-fault divorce laws were enacted, separated spouses had to fabricate adulterous affairs in order to end their marriages. Lawrence M. Friedman, A History of American Law 577–78 (2005). As plaintiffs note, Nevada has been a veritable pioneer in changing these practices, enacting (and benefitting economically from) laws that made it among the easiest places in the country to get married and un-married. Both Idaho and Nevada’s marriage regimes, as they exist today, bear little resemblance to those in place a century ago. As a result, defendants cannot credibly argue that their laws protect a

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“traditional institution”; at most, they preserve the status quo with respect to one aspect of marriage—exclusion of same-sex couples.
Certainly, the exclusion of same-sex couples from marriage is longstanding. However, “it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been.” Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941, 961 n.23 (Mass. 2003). The anti-miscegenation laws struck down in Loving were longstanding. Here as there, however, “neither history nor tradition [can] save [the laws] from constitutional attack.” Lawrence, 539 U.S. at 577–78 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
V. Idaho and Nevada’s marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere,19 impose profound legal, financial, social and psychic harms on numerous citizens of those states. These harms are not inflicted on opposite-sex couples, who may, if

19Because we hold that Idaho and Nevada may not discriminate against same-sex couples in administering their own marriage laws, it follows that they may not discriminate with respect to marriages entered into elsewhere. Neither state advances, nor can we imagine, any different—much less more persuasive—justification for refusing to recognize same-sex marriages performed in other states or countries.
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they wish, enjoy the rights and assume the responsibilities of marriage. Laws that treat people differently based on sexual orientation are unconstitutional unless a “legitimate purpose . . . overcome[s]” the injury inflicted by the law on lesbians and gays and their families. SmithKline, 740 F.3d at 481–82.
Defendants’ essential contention is that bans on same-sex marriage promote the welfare of children, by encouraging good parenting in stable opposite-sex families. Heightened scrutiny, however, demands more than speculation and conclusory assertions, especially when the assertions are of such little merit. Defendants have presented no evidence of any such effect. Indeed, they cannot even explain the manner in which, as they predict, children of opposite-sex couples will be harmed. Their other contentions are equally without merit. Because defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.
The official message of support that Governor Otter and the Coalition wish to send in favor of opposite-sex marriage is equally unconstitutional, in that it necessarily serves to convey a message of disfavor towards same-sex couples and their families. This is a message that Idaho and Nevada simply may not send.

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The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions. When we integrated our schools, education improved. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 492–95 (1954). When we opened our juries to women, our democracy became more vital. See Taylor v. Louisiana, 419 U.S. 522, 535–37 (1975). When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. See Witt v. Dep’t of Air Force, 527 F.3d 806, 821 n.11 (9th Cir. 2008). When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.
The judgment of the district court in Latta v. Otter is AFFIRMED. The judgment of the district court in Sevcik v. Sandoval is REVERSED, and the case is REMANDED to the district court for the prompt issuance of an injunction permanently enjoining the state, its political subdivisions, and its officers, employees, and agents, from enforcing any constitutional provision, statute, regulation or policy preventing otherwise qualified same-sex couples from marrying, or denying recognition to marriages celebrated in other jurisdictions which, if the spouses were not of the same sex, would be valid under the laws of the state.
AFFIRMED REVERSED and REMANDED.
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Counsel
Lawrence G. Wasden, Attorney General, Steven L. Olsen, Chief of Civil Litigation Division, W. Scott Zanzig, Deputy Attorney General, and Clay R. Smith, Deputy Attorney General, Office of the Attorney General, Boise, Idaho, for DefendantAppellant Christopher Rich and Intervenor-Defendant-Appellant State of Idaho
Monte Neil Stewart (argued) and Daniel W. Bower, Stewart Taylor & Morris PLLC, Boise, Idaho; Thomas C. Perry and Cally A. Younger, Office of the Governor, Boise, Idaho, for Defendant-Appellant Governor C.L. “Butch” Otter
Deborah A. Ferguson (argued), The Law Office of Deborah A. Ferguson, PLLC, Boise, Idaho; Craig Harrison Durham, Durham Law Office, PLLC, Boise, Idaho; Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, California, for Plaintiffs-Appellees Susan Latta, Traci Ehlers, Lori Watsen, Sharene Watsen, Shelia Robertson, Andrea Altmeyer, Amber Beierle, and Rachael Robertson
Tara L. Borelli (argued), Lambda Legal Defense and Education Fund, Inc., Atlanta, Georgia; Jon W. Davidson, Peter C. Renn, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California; Carla Christofferson, Dawn Sestito, Dimitri Portnoi, Melanie Cristol, and Rahi Azizi, O’Melveny & Myers LLP, Los Angeles, California; Kelly H. Dove and Marek P. Bute, Snell & Wilmer LLP, Las Vegas, Nevada, for Plaintiffs-Appellants Beverly Sevcik, Mary Baranovich, Antioco Carrillo, Theodore Small, Karen Goody, Karen Vibe, Fletcher Whitwell, Greg Flamer, Mikyla Miller, Katrina Miller, Adele Terranova, Tara Newberry, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Megan Lanz, Sara Geiger
Catherine Cortez Masto, Attorney General, C. Wayne Howle, Solicitor General, Office of the Attorney General, Carson City, Nevada, for Defendant-Appellee Governor Brian Sandoval
Neil A. Rombardo, District Attorney, Randal R. Munn, Chief Deputy District Attorney, Joseph L. Ward, Jr., Senior Deputy District Attorney, Carson City District Attorney’s Office, Carson City, Nevada, for Defendant-Appellee Alan Glover
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Monte Neil Stewart (argued), Craig G. Taylor, and Daniel W. Bower, Stewart Taylor & Morris PLLC, Boise, Idaho, for Intervenor-Defendant-Appellee Coalition for the Protection of Marriage
Counsel for Amici
Shannon P. Minter, Christopher F. Stoll, and Samantha Ames, National Center for Lesbian Rights, San Francisco, California, for Amici Curiae 13 Public Interest and Legal Service Organizations
Michael L. Whitlock, Susan Baker Manning, Jared A. Craft, Sara Carian, John A. Polito, and Erik Wilson, Bingham McCutchen LLP, Washington, D.C., for Amici Curiae 27 Employers and Organizations Representing Employers
Byron J. Babione, David Austin R. Nimocks, and James A. Campbell, Alliance Defending Freedom, Scottsdale, Arizona, for Amicus Curiae Alliance Defending Freedom
Dean Robert Broyles, Western Center for Law & Policy, Escondido, California, for Amicus Curiae Helen M. Alvare
Staci J. Pratt and Allen Lichtenstein, ACLU of Nevada Foundation, Las Vegas, Nevada; Daniel M. Gluck and Lois K. Perrin, ACLU of Hawai’i Foundation, Honolulu, Hawai’i, for Amici Curiae American Civil Liberties Union Foundation of Nevada and American Civil Liberties Union Foundation of Hawai’i
Nathalie F.P. Gilfoyle, American Psychological Association, Washington D.C.; Paul M. Smith, Jenner & Block LLP, Washington, D.C., for Amici Curiae American Psychological Association, American Psychiatric Association, and National Association of Social Workers
Nathalie F.P. Gilfoyle, American Psychological Association, Washington, D.C.; Paul M. Smith, Jenner & Block LLP, Washington, D.C., for Amici Curiae American Psychological Association, National Association of Social Workers, American Association for Marriage and Family Therapy, American Psychoanalytic Association, and Hawaii Psychological Association

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Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andra Troy, and Andrew P. Meiser, Cleary Gottlieb Steen & Hamilton LLP, New York, New York, for Amicus Curiae American Sociological Association
Rocky C. Tsai, Samuel P. Bickett, and Rebecca Harlow, Ropes & Gray LLP, San Francisco, California; Steven M. Freeman, Seth M. Marnin, and Michelle Deutchman, Anti-Defamation League, New York, New York, for Amici Curiae Anti-Defamation League, Americans United for the Separation of Church and State, Bend the Arc: A Jewish Partnership for Justice, Central Conference of American Rabbis, Global Justice Institute, Hadassah, the Women’s Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Japanese American Citizens League, Jewish Social Policy Action Network, Keshet, Metropolitan Community Churches, More Light Presbyterians, National Council of Jewish Women, Nehirim, People for the American Way Foundation, Presbyterian Welcome, Reconcilingworks: Lutherans for Full Participation, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Sikh American Legal Defense and Education Fund, Society for Humanistic Judaism, T’ruah: The Rabbinic Call for Human Rights, Women of Reform Judaism, and Women’s League for Conservative Judaism
Rocky C. Tsai, Samuel P. Bickett, Rebecca Harlow, and Idin Kashefipour, Ropes & Gray LLP, San Francisco, California; Steven M. Freeman, Seth M. Marnin, and Michelle Deutchman, Anti-Defamation League, New York, New York; Eric Alan Isaacson, Anti-Defamation League, San Diego, California, for Amici Curiae AntiDefamation League, Americans United for Separation of Church and State, Bend the Arc: A Jewish Partnership for Justice, Board of Trustees of the Pacific Central District/Unitarian Universalist Association, Hadassah, the Women’s Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Interfaith Alliance Hawai’i, Japanese American Citizens League, Keshet, National Council of Jewish Women, Metropolitan Community Churches, More Light Presbyterians, Nehirim, Pacific Central District/Unitarian Universalist Association, Pacific Southwest District/Unitarian Universalist Association, People for the American Way Foundation, Reconcilingworks: Lutherans for Full Participation, Religious Institute, Inc., Sikh American Legal Defense and Education Fund, Society for Humanistic Judaism, South Asian Americans Leading Together, Southern California Nevada Conference of the United Church of Christ, T’ruah: The Rabbinic Call for Human Rights, Union for Reform Judaism, Central
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Conference of American Rabbis, Women of Reform Judaism, Unitarian Universalist Association, Universal Fellowship of Metropolitan Community Churches, and Women’s League for Conservative Judaism
Jyotin Hamid and Joseph Rome, Debevoise & Plimpton LLP, New York, New York, for Amicus Curiae Professor Carlos A. Ball
Daniel McNeel Lane, Jr., Akin Gump Strauss Hauer & Feld LLP, San Antonio, Texas; Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California, for Amici Curiae Historians of Marriage Peter W. Bardaglio, Norma Basch, Stephanie Coontz, Nancy F. Cott, Toby L. Ditz, Laura F. Edwards, Michael Grossberg, Hendrik Hartog, Ellen Herman, Martha Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine Tyler May, Serena Mayeri, Steve Mintz, Elizabeth Pleck, Carole Shammas, Mary L. Shanley, Amy Dru Stanley, and Barbara Welke
Jerome C. Roth and Amelia L. B. Sargent, Munger, Tolles & Olson LLP, San Francisco, California, for Amici Curiae Bay Area Lawyers for Individual Freedom, et al.
Jeffrey S. Trachtman, Norman C. Simon, Jason M. Moff, Kurt M. Denk, and Jessica N. Witte, Kramer Levin Naftalis & Frankel LLP, New York, New York, for Amici Curiae Bishops of the Episcopal Church in Idaho, General Synod of the United Church of Christ, Mormons for Equality, Reconstructionist Rabbinical Association, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Union for Reform Judaism, Unitarian Universalist Association, Affirmation, Covenant Network of Presbyterians, Methodist Federation for Social Action, More Light Presbyterians, Presbyterian Welcome, Reconciling Ministries Network, Reconcilingworks: Lutherans for Full Participation, Religious Institute, Inc., and 38 Faith Leaders in the State of Idaho
John C. Eastman, Center for Constitutional Jurisprudence, Chapman University, Orange, California; D. John Sauer, Clark & Sauer, LLC, for Amici Curiae Center for Constitutional Jurisprudence and 27 Scholars of Federalism and Judicial Restraint
Lynn D. Wardle, J. Reuben Clark Law School, Provo, Utah; Stephen Kent Ehat, Lindon, Utah, for Amici Curiae Center for Urban Renewal and Education,
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Coalition of African-American Pastors USA, and Frederick Douglass Foundation, Inc.
Suzanne B. Goldberg, Columbia Law School Sexuality and Gender Law Clinic, New York, New York, for Amicus Curiae Columbia Law School Sexuality and Gender Law Clinic
Holly Carmichael, San Jose, California, for Amicus Curiae Concerned Women for America
Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, D.C., for Amicus Curiae Eagle Forum Education and Legal Defense Fund
Katherine Keating and Robert Esposito, Bryan Cave LLP, San Francisco, California, for Amicus Curiae Family Equality Council and Colage
K. Lee Marshall, Katherine Keating, Tracy Talbot, and Robert Esposito, Bryan Cave LLP, San Francisco, California, for Amici Curiae Family Equality Council, Equality Hawaii Foundation, We Are Family, and Colage
Joanna L. Grossman, Hofstra Law School, Hempstead, New York; Marjory A. Gentry, Arnold & Porter LLP, San Francisco, California, for Amici Curiae Family Law and Conflict of Laws Professors
Joan Heifetz Hollinger, Berkeley School of Law, Berkeley, California; Courtney Joslin, UC Davis School of Law, Davis, California; Laura W. Brill and Meaghan L. Field, Kendall Brill & Klieger LLP, Los Angeles, California, for Amici Curiae Family Law Professors
Elizabeth L. Deeley, Sarah E. Piepmeier, and Raghay Krishnapriyan, Kirkland & Ellis LLP, for Amicus Curiae Gary J. Gates
Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, California, for Amicus Curiae Gary J. Gates
Mary L. Bonauto, Gay & Lesbian Advocates & Defenders, Boston, Massachusetts, for Amicus Curiae Gay & Lesbian Advocates & Defenders
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Charles S. Limandri, Freedom of Conscience Defense Fund, Rancho Santa Fe, California, for Amici Curiae Robert P. George, Sherif Girgis, and Ryan T. Anderson
Nicholas M. O’Donnell, Sullivan & Worcester LLP, Boston, Massachusetts, for Amicus Curiae GLMA - Health Professionals Advancing LGBT Equality
Lynn D. Wardle, Brigham Young University Law School, Provo, Utah, for Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll
Rita F. Lin and Sara Bartel, Morrison & Foerster LLP, San Francisco, California, for Amici Curiae Joan Heifetz Hollinger, Courtney Joslin, and 63 Other Family Law Professors
Catherine E. Stetson, Erica Knievel-Songer, Mary Helen Wimberly, Madeline H. Gitomer, Jenna N. Jacobson, Hogan Lovells US LLP, Washington D.C., for Amicus Curiae Historians of Antigay Discrimination
Aderson Bellegarde Francois, Howard University School of Law Civil Rights Clinic, Washington, D.C.; Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, California, for Amicus Curiae Howard University School of Law Civil Rights Clinic
Gregory F. Zoeller, Attorney General, and Thomas M. Fisher, Solicitor General, Office of the Attorney General of Indiana, Indianapolis, Indiana; Luther Strange, Attorney General, State of Alabama; Michael C. Geraghty, Attorney General, State of Alaska; Thomas C. Horne, Attorney General, State of Arizona; John Suthers, Attorney General, State of Colorado; Lawrence G. Wasden, Attorney General, State of Idaho; Timothy C. Fox, Attorney General, State of Montana; Jon Bruning, Attorney General, State of Nebraska; E. Scott Pruitt, Attorney General, State of Oklahoma; Alan Wilson, Attorney General, State of South Carolina; Sean Reyes, Attorney General, State of Utah, for Amici Curiae States of Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma, South Carolina and Utah
Robert H. Tyler and Jennifer L. Bursch, Advocates for Faith and Freedom, Murrieta, California, for Amicus Curiae Institute for Marriage and Public Policy
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G. David Carter, Joseph P. Bowser, and Hunter T. Carter, Arent Fox LLP, Washington, D.C., for Amici Curiae Law Enforcement Officers, First Responders, and Organizations
Stephen M. Crampton, Mary E. McAlister, and Mandi D. Campbell, Liberty Counsel, Lynchburg, Virginia; Mathew D. Staver and Anita L. Staver, Liberty Counsel, Orlando, Florida, for Amici Curiae Liberty Counsel
William C. Duncan, Marriage Law Foundation, Lehi, Utah, for Amicus Curiae Marriage Law Foundation
Martha Coakley, Attorney General, Genevieve C. Nadeau, Assistant Attorney General, and Jonathan B. Miller, Assistant Attorney General, Commonwealth of Massachusetts, Office of the Attorney General, Boston, Massachusetts; Kamala D. Harris, Attorney General of California, Sacramento, California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut; Joseph R. Biden, III, Attorney General of Delaware, Department of Justice, Wilmington, Delaware; Irvin B. Nathan, Attorney General for the District of Columbia, Washington, District of Columbia; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois; Tom Miller, Attorney General of Iowa, Des Moines, Iowa; Janet T. Mills, Attorney General of Maine, Augusta, Maine; Douglas F. Gansler, Attorney General of Maryland, Baltimore, Maryland; Joseph A. Foster, Attorney General of New Hampshire, Concord, New Hampshire; Gary K. King, Attorney General of New Mexico, Santa Fe, New Mexico; Eric T. Schneiderman, Attorney General of New York, New York, New York; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon; William H. Sorrell, Attorney General of Vermont, Montpelier, Vermont; Robert W. Ferguson, Attorney General of Washington, Olympia, Washington, for Amici Curiae Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington
Gerard V. Bradley, Notre Dame Law School, Notre Dame, Indiana, for Amicus Curiae Dr. Paul McHugh
Sherrilyn Ifill, Christina A. Swarns, Natasha M. Korgaonkar, and Ria Tabacco Mar, NAACP Legal Defense & Educational Fund, Inc., New York, New York, for
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Amicus Curiae NAACP Legal Defense & Educational Fund, Inc.
Bruce A. Wessel, Moez M. Kaba, C. Mitchell Hendy, and Brian Eggleston, Irell & Manella LLP, Los Angeles, California, for Amici Curiae National and Western States Women’s Rights Organizations
Marcia D. Greenberger and Emily J. Martin, National Women’s Law Center, Washington, D.C., for Amici Curiae National Women’s Law Center, Gender Justice, Legal Momentum, Legal Voice, National Association of Women Lawyers, National Partnership for Women & Families, Southwest Women’s Law Center, Women Lawyers Association of Michigan, Women’s Law Project, and Professors of Law Associated with the Williams Institute
Marcia D. Greenberger, Emily J. Martin, and Cortelyou C. Kenney, National Women’s Law Center, Washington, D.C.; David C. Codell, Williams Institute, UCLA School of Law, Los Angeles, California, for Amici Curiae National Women’s Law Center, Williams Institute Scholars of Sexual Orientation and Gender Law, and Women’s Legal Groups
Abbe David Lowell and Christopher D. Man, Chadbourne & Parke LLP, Washington, D.C., for Amici Curiae Outserve - SLDN and American Military Partner Association
Kevin T. Snider, Pacific Justice Institute, Sacramento, California, for Amicus Curiae Pacific Justice Institute
Jiyun Cameron Lee and Andrew J. Davis, Folger Levin LLP, San Francisco, California, for Amicus Curiae Parents, Families and Friends of Lesbians and Gays, Inc.
Mark W. Mosier and Jennifer Schwartz, Covington & Burling LLP, Washington, D.C., for Amici Curiae Political Science Professors
Abram J. Pafford, Pafford Lawrence & Childress PLLC, Washington, D.C., for Amici Curiae Professors of Social Science
David Alan Robinson, North Haven, Connecticut, for Amicus Curiae David Alan
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Robinson
Alexander Dushku, R. Shawn Gunnarson, and Justin W. Starr, Kifton & McConkie, Salt Lake City, Utah, for Amici Curiae United States Conference of Catholic Bishops, National Association of Evangelicals, Church of Jesus Christ of Latter-Day Saints, Ethics & Religious Liberty Commission of the Southern Baptist Convention, and Lutheran Church - Missouri Synod

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FILED

Latta, et al. v. Otter, et al. Nos. 14-35420 & 14-35421 Sevcik, et al. v. Sandoval, et al. No. 12-17688

OCT 07 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

REINHARDT, Circuit Judge, concurring:

I, of course, concur without reservation in the opinion of the Court. I write

separately only to add that I would also hold that the fundamental right to

marriage, repeatedly recognized by the Supreme Court, in cases such as Loving v.

Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner

v. Safley, 482 U.S. 78 (1987), is properly understood as including the right to

marry an individual of one’s choice. That right applies to same-sex marriage just as

it does to opposite-sex marriage. As a result, I would hold that heightened scrutiny

is appropriate for an additional reason: laws abridging fundamental rights are

subject to strict scrutiny, and are invalid unless there is a “compelling state

interest” which they are “narrowly tailored” to serve. United States v. Juvenile

Male, 670 F.3d 999, 1012 (9th Cir. 2012) (citing Reno v. Flores, 507 U.S. 292, 302

(1993)), cert. denied, 133 S. Ct. 234 (2012)). Because the inadequacy of the states’

justifications has been thoroughly addressed, I write only to explain my view that

the same-sex marriage bans invalidated here also implicate plaintiffs’ substantive

due process rights.

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Like all fundamental rights claims, this one turns on how we describe the right. Plaintiffs and defendants agree that there is a fundamental right to marry, but defendants insist that this right consists only of the right to marry an individual of the opposite sex. In Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997), the Supreme Court explained “that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Our articulation of such fundamental rights must, we are told, be “carefully formulat[ed].” Id. at 722 (citations and quotation marks omitted).
However, “careful” does not mean “cramped.” Our task is to determine the scope of the fundamental right to marry as inferred from the principles set forth by the Supreme Court in its prior cases. Turner held that prisoners who had no children and no conjugal visits during which to conceive them—people who could not be biological parents—had a due process right to marry. 482 U.S. at 94–97. Zablocki held that fathers with outstanding child support obligations—people who were, at least according to adjudications in family court, unable to adequately provide for existing children—had a due process right to marry. 434 U.S. at 383–87.

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In each case, the Supreme Court referred to—and considered the historical roots of—the general right of people to marry, rather than a narrower right defined in terms of those who sought the ability to exercise it. These cases rejected statusbased restrictions on marriage not by considering whether to recognize a new, narrow fundamental right (i.e., the right of prisoners to marry or the right of fathers with unpaid child support obligations to marry) or determining whether the class of people at issue enjoyed the right as it had previously been defined, but rather by deciding whether there existed a sufficiently compelling justification for depriving plaintiffs of the right they, as people, possessed.1 See id. at 384 (“[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals.”).
The third and oldest case in the fundamental right to marry trilogy, Loving, is also the most directly on point. That case held that Virginia’s anti-miscegenation laws, which prohibited and penalized interracial marriages, violated the Fourteenth Amendment’s Equal Protection and Due Process Clauses. 388 U.S. at 2–6. In a
1Turner and Zablocki illustrate another important point, pertinent to the adequacy of defendants’ justifications for curtailing the right. The first of these cases involved plaintiffs whom the state was entitled to prevent from procreating, and the second involved those who were unable to support existing offspring financially. If the fundamental right to marry extends to them, it certainly cannot be limited only to those who can procreate or to those who, in the eyes of the state, would form part of an ideal parenting unit.
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rhetorical stroke as uncomprehending as it is unavailing, defendants contend that lesbians and gays are not denied the freedom to marry by virtue of the denial of their right to marry individuals of the same sex, as they are still free to marry individuals of the opposite sex. Defendants assert that their same-sex marriage bans are unlike the laws in Turner and Zablocki because they do not categorically bar people with a particular characteristic from marrying, but rather limit whom lesbians and gays, and all other persons, may marry. However, Loving itself squarely rebuts this argument. Mildred Jeter and Richard Loving were not barred from marriage altogether. Jeter was perfectly free to marry a black person, and Loving was perfectly free to marry a white person. They were each denied the freedom, however, to marry the person whom they chose—the other. The case of lesbians and gays is indistinguishable. A limitation on the right to marry another person, whether on account of race or for any other reason, is a limitation on the right to marry.2

2Defendants are apparently concerned that if we recognize a fundamental right to marry the person of one’s choice, this conclusion will necessarily lead to the invalidation of bans on incest, polygamy, and child marriage. However, fundamental rights may sometimes permissibly be abridged: when the laws at issue further compelling state interests, to which they are narrowly tailored. Although such claims are not before us, it is not difficult to envision that states could proffer substantially more compelling justifications for such laws than have been put forward in support of the same-sex marriage bans at issue here.
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Defendants urge that “man-woman” and “genderless” marriage are mutually exclusive, and that permitting the latter will “likely destroy[]” the former. Quite the opposite is true. Loving teaches that Virginia’s anti-miscegenation laws did not simply “deprive the Lovings of liberty without due process of law.” 388 U.S. at 12. They did far worse; as the Court declared, the laws also “surely . . . deprive[d] all the State’s citizens of liberty without due process of law.” Id. (emphasis added). When Virginia told Virginians that they were not free to marry the one they loved if that person was of a different race, it so grievously constrained their “freedom of choice to marry” that it violated the constitutional rights even of those citizens who did not themselves wish to enter interracial marriages or who were already married to a person of the same race. Id. When Idaho tells Idahoans or Nevada tells Nevadans that they are not free to marry the one they love if that person is of the same sex, it interferes with the universal right of all the State’s citizens—whatever their sexual orientation—to “control their destiny.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).
To define the right to marry narrowly, as the right to marry someone of the opposite sex, would be to make the same error committed by the majority in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), which considered whether there was a “fundamental right to engage in homosexual sodomy.” This description of
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the right at issue “fail[ed] to appreciate the extent of the liberty at stake,” the Court stated in Lawrence, 539 U.S. at 567. Lawrence rejected as wrongheaded the question whether “homosexuals” have certain fundamental rights; “persons”—of whatever orientation—are rights-holders. See id. Fundamental rights defined with respect to the subset of people who hold them are fundamental rights misdefined. The question before us is not whether lesbians and gays have a fundamental right to marry a person of the same sex; it is whether a person has a fundamental right to marry, to enter into “the most important relation in life,” Maynard v. Hill, 125 U.S. 190, 205 (1888), with the one he or she loves. Once the question is properly defined, the answer follows ineluctably: yes.
Historically, societies have strictly regulated intimacy and thereby oppressed those whose personal associations, such as committed same-sex relationships, were, though harmful to no one, disfavored. Human intimacy, like “liberty[,] [has] manifold possibilities.” Lawrence, 539 U.S. at 578. Although “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress[,] [a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Id. at 578-79.

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We, as judges, deal so often with laws that confine and constrain. Yet our core legal instrument comprehends the rights of all people, regardless of sexual orientation, to love and to marry the individuals they choose. It demands not merely toleration; when a state is in the business of marriage, it must affirm the love and commitment of same-sex couples in equal measure. Recognizing that right dignifies them; in so doing, we dignify our Constitution.

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FILED

Latta, et al. v. Otter, et al. Nos. 14-35420 & 14-35421 Sevcik, et al. v. Sandoval, et al. No. 12-17688

OCT 07 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

BERZON, Circuit Judge, concurring:

I agree that Idaho and Nevada’s same-sex marriage prohibitions fail because

they discriminate on the basis of sexual orientation and I join in the Opinion of the

Court. I write separately because I am persuaded that Idaho and Nevada’s same-

sex marriage bans are also unconstitutional for another reason: They are

classifications on the basis of gender that do not survive the level of scrutiny

applicable to such classifications.

I. The Same-Sex Marriage Prohibitions Facially Classify on the Basis of Gender

“[S]tatutory classifications that distinguish between males and females are

‘subject to scrutiny under the Equal Protection Clause.’” Craig v. Boren, 429 U.S.

190, 197 (1976) (quoting Reed v. Reed, 404 U.S. 71, 75 (1971)). “To withstand

constitutional challenge, . . . classifications by gender must serve important

governmental objectives and must be substantially related to achievement of those

objectives.” Id. “The burden of justification” the state shoulders under this

intermediate level of scrutiny is “demanding”: the state must convince the

reviewing court that the law’s “proffered justification” for the gender classification

“is ‘exceedingly persuasive.’” United States v. Virginia, 518 U.S. 515, 533 (1996)

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(“VMI”). Idaho and Nevada’s same-sex marriage bans discriminate on the basis of sex and so are invalid unless they meet this “demanding” standard.
A. Idaho and Nevada’s same-sex marriage prohibitions facially classify on the basis of sex.1 Only women may marry men, and only men may marry women.2 Susan Latta may not marry her partner Traci Ehlers for the sole reason that Latta is a woman; Latta could marry Ehlers if Latta were a man. Theodore Small may not marry his partner Antioco Carillo for the sole reason that Small is a man; Small could marry Carillo if Small were a woman. But for their gender, plaintiffs would be able to marry the partners of their choice. Their rights under the states’ bans on same-sex marriage are wholly determined by their sex.
A law that facially dictates that a man may do X while a woman may not, or

1 “Sex” and “gender” are not necessarily coextensive concepts; the meanings of these terms and the difference between them are highly contested. See, e.g., Katherine Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev 1 (1995). For present purposes, I will use the terms “sex” and “gender” interchangeably, to denote the social and legal categorization of people into the generally recognized classes of “men” and “women.”
2 Idaho Const. art. III § 38 (“A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”); Idaho Code § 32-201(1) (“Marriage is a personal relation arising out of a civil contract between a man and a woman . . . .”); Nev. Const. art. I, § 21 (“Only a marriage between a male and female person shall be recognized and given effect in this state.”); Nev. Rev. Stat. § 122.020 (“[A] male and a female person . . . may be joined in marriage.”).
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vice versa, constitutes, without more, a gender classification. “[T]he absence of a
malevolent motive does not convert a facially discriminatory policy into a neutral
policy with a discriminatory effect. Whether [a policy] involves disparate treatment
through explicit facial discrimination does not depend on why the [defendant]
discriminates but rather on the explicit terms of the discrimination.” UAW v.
Johnson Controls, Inc., 499 U.S. 187, 199 (1991).3 Thus, plaintiffs challenging
3 UAW v. Johnson Controls was a case brought under Title VII of the Civil Rights act of 1964, which, inter alia, bans employment policies that discriminate on the basis of sex. Title VII provides it is
an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; (2) to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a). The Supreme Court has “analog[ized]” to its decisions interpreting what constitutes discrimination “because of” a protected status under Title VII in analyzing Fourteenth Amendment equal protection claims and vice versa. See, e.g., Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976), superseded by statute on other grounds as recognized in Johnson Controls, 499 U.S. at 219 (“While there is no necessary inference that Congress . . . intended to incorporate into Title VII the concepts of discrimination which have evolved from court decisions construing the Equal Protection Clause of the Fourteenth Amendment, the similarities between the congressional language and some of those decisions surely indicate that the latter are a useful starting point in interpreting the former.”). As the Court has explained, “[p]articularly in the case of defining the
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policies that facially discriminate on the basis of sex need not separately show
either “intent” or “purpose” to discriminate. Personnel Adm’r of Massachusetts v.
Feeney, 442 U.S. 256, 277–78 (1979).
Some examples help to illuminate these fundamental precepts. Surely, a law
providing that women may enter into business contracts only with other women
would classify on the basis of gender. And that would be so whether or not men
were similarly restricted to entering into business relationships only with other
men.
Likewise, a prison regulation that requires correctional officers be the same
sex as the inmates in a prison “explicitly discriminates . . . on the basis of . . . sex.”
Dothard v. Rawlinson, 433 U.S. 321, 332, 332 n. 16 (1977). Again, that is so
whether women alone are affected or whether men are similarly limited to serving only male prisoners.4
term ‘discrimination,’” Title VII must be interpreted consistently with Fourteenth Amendment equal protection principles, because Congress does not define “discrimination” in Title VII. See Gilbert, 429 U.S. at 133; see also 42 U.S.C. § 2000e. I therefore rely on Title VII cases throughout this Opinion for the limited purpose of determining whether a particular classification is or is not sex-based.
4 Dothard in fact dealt with a regulation that applied equally to men and women. See 433 U.S. at 332 n. 16 (“By its terms [the regulation at issue] applies to contact positions in both male and female institutions.”); see also id. at 325 n. 6. Dothard ultimately upheld the sex-based discrimination at issue under Title VII’s “bona fide occupational qualification” exception, 42 U.S.C. § 2000e-2(e), because of the especially violent, sexually charged nature of the particular prisons involved
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Further, it can make no difference to the existence of a sex-based classification whether the challenged law imposes gender homogeneity, as in the business partner example or Dothard, or gender heterogeneity. Either way, the classification is one that limits the affected individuals’ opportunities based on their sex, as compared to the sex of the other people involved in the arrangement or transaction.
As Justice Johnson of the Vermont Supreme Court noted, the same-sex marriage prohibitions, if anything, classify more obviously on the basis of sex than they do on the basis of sexual orientation: “A woman is denied the right to marry another woman because her would-be partner is a woman, not because one or both are lesbians. . . . [S]exual orientation does not appear as a qualification for marriage” under these laws; sex does. Baker v. State, 744 A.2d 864, 905 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part).
The statutes’ gender focus is also borne out by the experience of one of the Nevada plaintiff couples:
When Karen Goody and Karen Vibe went to the Washoe County Marriage
in that case, and because the regulation applied only to correctional officers in “contact positions” (i.e. working in close physical proximity to inmates) in maximum security institutions. See Dothard, 433 U.S. at 336–37 (internal quotation marks omitted). For present purposes, the salient holding is that the same-sex restriction was overtly a sex-based classification, even if it could be justified by a sufficiently strong BFOQ showing. Id. at 332–33.
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Bureau to obtain a marriage license, the security officer asked, “Do you have a man with you?” When Karen Vibe said they did not, and explained that she wished to marry Karen Goody, she was told she could not even obtain or complete a marriage license application . . . [because] “[t]wo women can’t apply” . . . [and] marriage is “between a man and a woman.”
Notably, Goody and Vibe were not asked about their sexual orientation; Vibe was
told she was being excluded because of her gender and the gender of her partner.
Of course, the reason Vibe wants to marry Goody, one presumes, is due in
part to their sexual orientations.5 But that does not mean the classification at issue
is not sex-based. Dothard also involved a facial sex classification intertwined with
presumptions about sexual orientation, in that instance heterosexuality. The
Supreme Court in Dothard agreed that the state was justified in permitting only
male officers to guard male inmates, because there was “a real risk that other
inmates, deprived of a normal heterosexual environment, would assault women
guards because they were women.” 433 U.S. at 335. Thus, Dothard’s reasoning
confirms the obvious: a statute that imposes a sex qualification, whether for a
marriage license or a job application, is sex discrimination, pure and simple, even
5 The need for such a presumption, as to a factor that does not appear on the face of the same-sex marriage bans, suggests that the gender discrimination analysis is, if anything, a closer fit to the problem before us than the sexual orientation rubric. While the same-sex marriage prohibitions obviously operate to the disadvantage of the people likely to wish to marry someone of the same gender—i.e. lesbians, gay men, bisexuals, and otherwise-identified persons with same-sex attraction—the individuals’ actual orientation is irrelevant to the application of the laws.
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where assumptions about sexual orientation are also at play. Lawrence v. Texas, 539 U.S. 558 (2003) also underscores why the
continuation of the same-sex marriage prohibitions today is quite obviously about gender. Lawrence held that it violates due process for states to criminalize consensual, noncommercial same-sex sexual activity that occurs in private between two unrelated adults. See id. at 578. After Lawrence, then, the continuation of the same-sex marriage bans necessarily turns on the gender identity of the spouses, not the sexual activity they may engage in. To attempt to bar that activity would be unconstitutional. See id. The Nevada intervenors recognize as much, noting that Lawrence “differentiates between the fundamental right of gay men and lesbians to enter an intimate relationship, on one hand, and, on the other hand, the right to marry a member of one’s own sex.” The “right to marry a member of one’s own sex” expressly turns on sex.
B. In concluding that these laws facially classify on the basis of gender, it is of no moment that the prohibitions “treat men as a class and women as a class equally” and in that sense give preference to neither gender, as the defendants6 fervently maintain. That argument revives the long-discredited reasoning of Pace
6 Following the style of the Opinion of the Court, see Op. Ct. at 9 n. 4, I will refer throughout this Opinion to arguments advanced generally by “defendants,” meaning the parties that continue actively to argue in defense of the laws, i.e. the Idaho defendants and the Nevada intervenors.
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v. Alabama, which upheld an anti-miscegenation statute on the ground that “[t]he punishment of each offending person, whether white or black, is the same.” 106 U.S. 583, 585 (1883), overruled by McLaughlin v. Florida, 379 U.S. 184 (1964). Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Board of Education, 347 U.S. 483 (1954), similarly upheld racial segregation on the reasoning that segregation laws applied equally to black and white citizens.
This narrow view of the reach of the impermissible classification concept is, of course, no longer the law after Brown. Loving v. Virginia reinforced the postBrown understanding of impermissible classification under the Fourteenth Amendment in a context directly analogous to the present one. Addressing the constitutionality of anti-miscegenation laws banning interracial marriage, Loving firmly “reject[ed] the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discrimination.” 388 U.S. 1, 8 (1967). As Loving explained, “an even-handed state purpose” can still be “repugnant to the Fourteenth Amendment,” id. at 11 n. 11, because restricting individuals’ rights, choices, or opportunities “solely because of racial classifications violates the central meaning of the Equal Protection Clause” even if members of all racial groups are identically restricted with regard to interracial
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marriage. Id. at 12. “Judicial inquiry under the Equal Protection Clause . . . does not end with a showing of equal application among the members of the class defined by the legislation.” McLaughlin, 379 U.S. 184 at 191.
If more is needed to confirm that the defendants’ “equal application” theory has no force, there is more—cases decided both before and after Loving. Shelley v. Kraemer, for example, rejected the argument that racially restrictive covenants were constitutional because they would be enforced equally against both black and white buyers. Shelley v. Kraemer 334 U.S. 1, 21–22 (1948). In so holding, Shelley explained: “The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.” Id. at 22. Shelley also observed that “a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons, and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons” violated the Fourteenth Amendment despite its equal application to both black and white occupants. See id. at 11 (describing Buchanan v. Warley, 245 U.S. 60 (1917)).
The same individual rights analysis applies in the context of gender classifications. Holding unconstitutional peremptory strikes on the basis of gender,
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J.E.B. explained that “individual jurors themselves have a right to nondiscriminatory jury selection procedures . . . . [T]his right extends to both men and women.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 140–41 (1994). “The neutral phrasing of the Equal Protection Clause, extending its guarantee to ‘any person,’ reveals its concern with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question).” Id. at 152 (Kennedy, J., concurring).
City of Los Angeles, Dep’t of Water & Power v. Manhart further explains why, even in “the absence of a discriminatory effect on women as a class” or on men as a class, the same-sex marriage bars constitute gender classifications, because they “discriminate against individual[s] . . . because of their sex.” 435 U.S. 702, 716 (1978) (emphasis added). In that case, the parties recognized that women, as a class, lived longer than men. Id. at 707–09. The defendant Department argued that this fact justified a policy that facially required all women to contribute larger monthly sums to their retirement plans than men, out of fairness to men as a class, who otherwise would subsidize women as a class. Id. at 708–09. Manhart rejected this justification for the sex distinction, explaining that the relevant focus must be “on fairness to individuals rather than fairness to classes,” and held, accordingly, that the policy was unquestionably sex
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discriminatory. Id. at 709, 711.
Under all these precedents, it is simply irrelevant that the same-sex marriage
prohibitions privilege neither gender as a whole or on average. Laws that strip
individuals of their rights or restrict personal choices or opportunities solely on the
basis of the individuals’ gender are sex discriminatory and must be subjected to
intermediate scrutiny. See J.E.B., 511 U.S. at 140–42. Accordingly, I would hold
that Idaho and Nevada’s same-sex marriage prohibitions facially classify on the
basis of gender, and that the “equal application” of these laws to men and women
as a class does not remove them from intermediate scrutiny.7
7 Several courts have so held. See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n. 4 (N.D. Cal. 2012) (“Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, DOMA would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex.”), initial hearing en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048 (9th Cir. 2013) ; In re Levenson, 560 F.3d 1145, 1147 (9th Cir. EDR 2009) (Reinhardt, J., presiding) (“If [Levenson’s husband] were female, or if Levenson himself were female, Levenson would be able to add [his husband] as a beneficiary. Thus, the denial of benefits at issue here was sex-based and can be understood as a violation of the . . . prohibition of sex discrimination.”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010) (“Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex.”), aff’d sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993) (plurality op.) (a same-sex marriage bar, “on its face, discriminates based on sex”); Baker, 744 A.2d at 905 (Johnson, J., concurring in part and dissenting in part) (a same-sex marriage bar presents “a
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C. The same-sex marriage prohibitions also constitute sex discrimination for the alternative reason that they impermissibly prescribe different treatment for similarly situated subgroups of men and women. That is, the same-sex marriage laws treat the subgroup of men who wish to marry men less favorably than the otherwise similarly situated subgroup of women who want to marry men. And the laws treat the subgroup of women who want to marry women less favorably than the subgroup of otherwise identically situated men who want to marry women.
The Supreme Court has confirmed that such differential treatment of similarly-situated sex-defined subgroups also constitutes impermissible sex discrimination. Phillips v. Martin Marietta Corp., for example, held that an employer’s refusal to hire women with preschool-age children, while employing men with children the same age, was facial sex discrimination, even though all men, and all women without preschool-age children, were treated identically. See 400 U.S. 542, 543–44 (1971) (per curiam). And the Seventh Circuit held an airline’s policy requiring female flight attendants, but not male flight attendants, to be unmarried was discrimination based on sex, relying on Phillips and explaining that a classification that affects only some members of one gender is still sex discrimination if similarly situated members of the other gender are not treated the
straightforward case of sex discrimination” because it “establish[es] a classification based on sex”).
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same way. “The effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class.” Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971).
Of those individuals who seek to obtain the state-created benefits and obligations of legal marriage to a woman, men may do so but women may not. Thus, at the subclass level—the level that takes into account the similar situations of affected individuals—women as a group and men as a group are treated differently. For this reason as well I would hold that Idaho and Nevada’s same-sex marriage prohibitions facially classify on the basis of gender. They must be reviewed under intermediate scrutiny.
D. One further point bears mention. The defendants note that the Supreme Court summarily rejected an equal protection challenge to a same-sex marriage bar in Baker v. Nelson, 409 U.S. 810 (1972), holding there was no substantial federal question presented in that case. But the Court did not clarify that sex-based classifications receive intermediate scrutiny until 1976. See Craig, 429 U.S. at 221, 218 (Rehnquist, J., dissenting) (describing the level of review prescribed by the majority as “new,” and as “an elevated or ‘intermediate’ level scrutiny”). As this fundamental doctrinal change postdates Baker, Baker is no longer binding as to the sex discrimination analysis, just as it is no longer binding as to the sexual
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orientation discrimination analysis. See Op. Ct. at 9–11. II. Same-Sex Marriage Bars Are Based in Gender Stereotypes Idaho and Nevada’s same sex marriage laws not only classify on the basis of
sex but also, implicitly and explicitly, draw on “archaic and stereotypic notions” about the purportedly distinctive roles and abilities of men and women. Eradicating the legal impact of such stereotypes has been a central concern of constitutional sex-discrimination jurisprudence for the last several decades. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982). The samesex marriage bans thus share a key characteristic with many other sex-based classifications, one that underlay the Court’s adoption of intermediate scrutiny for such classifications.
The Supreme Court has consistently emphasized that “gender-based classifications . . . may be reflective of ‘archaic and overbroad’ generalizations about gender, or based on ‘outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas.’” J.E.B., 511 U.S. at 135 (quoting Schlesinger v. Ballard, 419 U.S. 498, 506–07 (1975); Craig, 429 U.S. at 198–99) (some internal quotation marks omitted). Laws that rest on nothing more than “the ‘baggage of sexual stereotypes,’ that presume[] the father has the ‘primary responsibility to provide a home and its essentials,’ while the
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mother is the ‘center of home and family life’” have been declared constitutionally invalid time after time. Califano v. Westcott, 443 U.S. 76, 89 (1979) (quoting Orr v. Orr, 440 U.S. 268, 283 (1979); Stanton v. Stanton, 421 U.S. 7, 10 (1975); Taylor v. Louisiana, 419 U.S. 522 (1975)). Moreover, “gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization.” J.E.B., 511 U.S. at 139 n. 11. And hostility toward nonconformance with gender stereotypes also constitutes impermissible gender discrimination. See generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); accord Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (harassment against a person for “failure to conform to [sex] stereotypes” is gender-based discrimination) (internal quotation marks omitted).
The notion underlying the Supreme Court’s anti-stereotyping doctrine in both Fourteenth Amendment and Title VII cases is simple, but compelling: “[n]obody should be forced into a predetermined role on account of sex,” or punished for failing to conform to prescriptive expectations of what behavior is appropriate for one’s gender. See Ruth Bader Ginsburg, Gender and the Constitution, 44 U. Cin. L. Rev. 1, 1 (1975). In other words, laws that give effect to “pervasive sex-role stereotype[s]” about the behavior appropriate for men and
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women are damaging because they restrict individual choices by punishing those men and women who do not fit the stereotyped mold. Nev. Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 731, 738 (2003).
Idaho and Nevada’s same-sex marriage prohibitions, as the justifications advanced for those prohibitions in this Court demonstrate, patently draw on “archaic and stereotypic notions” about gender. Hogan, 458 U.S. at 725. These prohibitions, the defendants have emphatically argued, communicate the state’s view of what is both “normal” and preferable with regard to the romantic preferences, relationship roles, and parenting capacities of men and women. By doing so, the laws enforce the state’s view that men and women “naturally” behave differently from one another in marriage and as parents.
The defendants, for example, assert that “gender diversity or complementarity among parents . . . provides important benefits” to children, because “mothers and fathers tend on average to parent differently and thus make unique contributions to the child’s overall development.” The defendants similarly assert that “[t]he man-woman meaning at the core of the marriage institution, reinforced by the law, has always recognized, valorized, and made normative the roles of ‘mother’ and ‘father’ and their uniting, complementary roles in raising their offspring.”
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Viewed through the prism of the Supreme Court’s contemporary antistereotyping sex discrimination doctrine, these proferred justifications simply underscore that the same-sex marriage prohibitions discriminate on the basis of sex, not only in their form—which, as I have said, is sufficient in itself—but also in reviving the very infirmities that led the Supreme Court to adopt an intermediate scrutiny standard for sex classifications in the first place. I so conclude for two, somewhat independent, reasons.
A. First, and more obviously, the gender stereotyping at the core of the same-sex marriage prohibitions clarifies that those laws affect men and women in basically the same way as, not in a fundamentally different manner from, a wide range of laws and policies that have been viewed consistently as discrimination based on sex. As has been repeated again and again, legislating on the basis of such stereotypes limits, and is meant to limit, the choices men and women make about the trajectory of their own lives, choices about work, parenting, dress, driving—and yes, marriage. This focus in modern sex discrimination law on the preservation of the ability freely to make individual life choices regardless of one’s sex confirms that sex discrimination operates at, and must be justified at, the level of individuals, not at the broad class level of all men and women. Because the same-sex marriage prohibitions restrict individuals’ choices on the basis of sex,
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they discriminate based on sex for purposes of constitutional analysis precisely to the same degree as other statutes that infringe on such choices—whether by distributing benefits or by restricting behavior—on that same ground.
B. Second, the long line of cases since 1971 invalidating various laws and policies that categorized by sex have been part of a transformation that has altered the very institution at the heart of this case, marriage. Reviewing that transformation, including the role played by constitutional sex discrimination challenges in bringing it about, reveals that the same sex marriage prohibitions seek to preserve an outmoded, sex-role-based vision of the marriage institution, and in that sense as well raise the very concerns that gave rise to the contemporary constitutional approach to sex discrimination.
(i) Historically, marriage was a profoundly unequal institution, one that imposed distinctly different rights and obligations on men and women. The law of coverture, for example, deemed the “the husband and wife . . . one person,” such that “the very being or legal existence of the woman [was] suspended . . . or at least [was] incorporated and consolidated into that of the husband” during the marriage. 1 William Blackstone, Commentaries on the Laws of England 441 (3d rev. ed. 1884). Under the principles of coverture, “a married woman [was] incapable, without her husband’s consent, of making contracts . . . binding on her or him.”
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Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring). She could not sue or be sued without her husband’s consent. See, e.g., Nancy F. Cott, Public Vows: A History of Marriage and the Nation 11–12 (2000). Married women also could not serve as the legal guardians of their children. Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (plurality op.).
Marriage laws further dictated economically disparate roles for husband and wife. In many respects, the marital contract was primarily understood as an economic arrangement between spouses, whether or not the couple had or would have children. “Coverture expressed the legal essence of marriage as reciprocal: a husband was bound to support his wife, and in exchange she gave over her property and labor.” Cott, Public Vows, at 54. That is why “married women traditionally were denied the legal capacity to hold or convey property . . . .” Frontiero, 411 U.S. at 685. Notably, husbands owed their wives support even if there were no children of the marriage. See, e.g., Hendrik Hartog, Man and Wife in America: A History 156 (2000).
There was also a significant disparity between the rights of husbands and wives with regard to physical intimacy. At common law, “a woman was the sexual property of her husband; that is, she had a duty to have intercourse with him.” John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in
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America 79 (3d ed. 2012). Quite literally, a wife was legally “the possession of her husband, . . . [her] husband’s property.” Hartog, Man and Wife in America, at 137. Accordingly, a husband could sue his wife’s lover in tort for “entic[ing]” her or “alienat[ing]” her affections and thereby interfering with his property rights in her body and her labor. Id. A husband’s possessory interest in his wife was undoubtedly also driven by the fact that, historically, marriage was the only legal site for licit sex; sex outside of marriage was almost universally criminalized. See, e.g., Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 Yale L.J. 756, 763–64 (2006).
Notably, although sex was strongly presumed to be an essential part of marriage, the ability to procreate was generally not. See, e.g., Chester Vernier, American Family Laws: A Comparative Study of the Family Law of the FortyEight American States, Alaska, the District of Columbia, and Hawaii (to Jan. 1, 1931) (1931) I § 50, 239–46 (at time of survey, grounds for annulment typically included impotency, as well as incapacity due to minority or “non-age”; lack of understanding and insanity; force or duress; fraud; disease; and incest; but not inability to conceive); II § 68, at 38–39 (1932) (at time of survey, grounds for divorce included “impotence”; vast majority of states “generally held that impotence . . . does not mean sterility but must be of such a nature as to render
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complete sexual intercourse practically impossible”; and only Pennsylvania “ma[d]e sterility a cause” for divorce).
The common law also dictated that it was legally impossible for a man to rape his wife. Men could not be prosecuted for spousal rape. A husband’s “incapacity” to rape his wife was justified by the theory that “‘the marriage constitute[d] a blanket consent to sexual intimacy which the woman [could] revoke only by dissolving the marital relationship.’” See, e.g., Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Rev 1373, 1376 n. 9 (2000) (quoting Model Penal Code and Commentaries, § 213.1 cmt. 8(c), at 342 (Official Draft and Revised Comments 1980)).
Concomitantly, dissolving the marital partnership via divorce was exceedingly difficult. Through the mid-twentieth century, divorce could be obtained only on a limited set of grounds, if at all. At the beginning of our nation’s history, several states did not permit full divorce except under the narrowest of circumstances; separation alone was the remedy, even if a woman could show “cruelty endangering life or limb.” Peter W. Bardaglio, Reconstrucing the Household: Families, Sex, and the Law in the Nineteenth-Century South 33 (1995); see also id. 32–33. In part, this policy dovetailed with the grim fact that, at English common law, and in several states through the beginning of the nineteenth century,
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“a husband’s prerogative to chastise his wife”—that is, to beat her short of permanent injury—was recognized as his marital right. Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2125 (1996).
Perhaps unsurprisingly, the profoundly unequal status of men and women in marriage was frequently cited as justification for denying women equal rights in other arenas, including the workplace. “[S]tate courts made clear that the basis, and validity, of such laws lay in stereotypical beliefs about the appropriate roles of men and women.” Hibbs v. Dep’t of Human Res., 273 F.3d 844, 864 (9th Cir. 2001), aff’d sub nom. Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721. Justice Bradley infamously opined in 1887 that “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.” Bradwell, 83 U.S. at 141 (Bradley, J., concurring). On this view, women could be excluded from various professions because “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” Id. Instead, the law gave effect to the belief that “[t]he paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.” Id.
As a result of this separate-spheres regime, “‘[h]istorically, denial or
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curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second.’ . . . Stereotypes about women’s domestic roles [we]re reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men.” Hibbs, 538 U.S. at 736 (quoting the Joint Hearing before the Subcommittee on Labor–Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., at 100 (1986)). Likewise, social benefits programs historically distinguished between men and women on the assumption, grounded in the unequal marital status of men and women, that women were more likely to be homemakers, supported by their working husbands. See, e.g., Califano v. Goldfarb, 430 U.S. 199, 205–07 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 644–45 (1975).
(ii) This asymmetrical regime began to unravel slowly in the nineteenth century, starting with the advent of Married Women’s Property Acts, which allowed women to possess property in their own right for the first time. See, e.g., Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earnings, 1860–1930, 82 Geo. L. Rev. 2127(1994). Eventually, state legislatures revised their laws. Today, of course, a married woman may enter contracts, sue and be sued without her husband’s participation, and own and
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convey property. The advent of “no fault” divorce regimes in the late 1960s and early 1970s made marital dissolutions more common, and legislatures also directed family courts to impose child and spousal support obligations on divorcing couples without regard to gender. See Cott, Public Vows, at 205–06. As these legislative reforms were taking hold, “in 1971 . . . the Court f[ou]nd for the first time that a state law violated the Equal Protection Clause because it arbitrarily discriminated on the basis of sex.” Hibbs, 273 F.3d at 865 (citing Reed, 404 U.S. 71).
This same legal transformation extended into the marital (and nonmarital) bedroom. Spousal rape has been criminalized in all states since 1993. See, e.g., Sarah M. Harless, From the Bedroom to the Courtroom: The Impact of Domestic Violence Law on Marital Rape Victims, 35 Rutgers L.J. 305, 318 (2003). Griswold v. Connecticut, 381 U.S. 479 (1965), held that married couples have a fundamental privacy right to use contraceptives, and Eisenstadt v. Baird, 405 U.S. 438 (1972), later applied equal protection principles to extend this right to single persons. More recently, Lawrence clarified that licit, consensual sexual behavior is no longer confined to marriage, but is protected when it occurs, in private, between two consenting adults, regardless of their gender. See 539 U.S. at 578.
In the child custody context, mothers and fathers today are generally presumed to be equally fit parents. See, e.g., Cott, Public Vows, at 206. Stanley v.
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Illinois, 405 U.S. 645, 658 (1972), for example, held invalid as an equal protection violation a state law that presumed unmarried fathers, but not unwed mothers, unfit as parents. Later, the Supreme Court expressly “reject[ed] . . the claim that . . . [there is] any universal difference between maternal and paternal relations at every phase of a child’s development.” Caban v. Mohammed, 441 U.S. 380, 389 (1979). Likewise, both spouses in a marriage are now entitled to economic support without regard to gender. See Cott, at 206–07. Once again, equal protection adjudication contributed to this change: Orr, 440 U.S. at 278–79, struck down a state statutory scheme imposing alimony obligations on husbands but not wives.
In short, a combination of constitutional sex-discrimination adjudication, legislative changes, and social and cultural transformation has, in a sense, already rendered contemporary marriage “genderless,” to use the phrase favored by the defendants. See Op. Ct. at 12 n. 6. For, as a result of these transformative social, legislative, and doctrinal developments, “[g]ender no longer forms an essential part of marriage; marriage under law is a union of equals.” Perry, 704 F. Supp. 2d at 993. As a result, in the states that currently ban same-sex marriage, the legal norms that currently govern the institution of marriage are “genderless” in every resepect except the requirement that would-be spouses be of different genders. With that exception, Idaho and Nevada’s marriage regimes have jettisoned the
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rigid roles marriage as an institution once prescribed for men and women. In sum, “the sex-based classification contained in the[se] marriage laws,” as the only gender classification that persists in some states’ marriage statutes, is, at best, “a vestige of sex-role stereotyping” that long plagued marital regimes before the modern era, see Baker, 744 A.2d at 906 (Johnson, J., concurring in part and dissenting in part), and, at worst, an attempt to reintroduce gender roles.
The same-sex marriage bars constitute gender discrimination both facially and when recognized, in their historical context, both as resting on sex stereotyping and as a vestige of the sex-based legal rules once imbedded in the institution of marriage. They must be subject to intermediate scrutiny.
III. Idaho and Nevada’s Same-Sex Marriage Prohibitions Fail Under Intermediate Scrutiny For Idaho and Nevada’s same-sex marriage prohibitions to survive the intermediate scrutiny applicable to sex discriminatory laws, it must be shown that these laws “serve important governmental objectives and [are] substantially related to achievement of those objectives.” Craig, 429 U.S. at 197. “The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.” Hogan, 458 U.S. at 725–26.
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In part, the interests advanced by the defendants fail because they are
interests in promoting and enforcing gender stereotyping and so simply are not
legitimate governmental interests. And even if we assume that the other
governmental objectives cited by the defendants are legitimate and important, the
defendants have not shown that the same-sex marriage prohibitions are
substantially related to achieving any of them.
The asserted interests fall into roughly three categories: (1) ensuring children
are raised by parents who provide them with the purported benefits of “gender
complementarity,” also referred to as “gender diversity”; (2) “furthering the
stability of family structures through benefits targeted at couples possessing
biological procreative capacity,” and/or discouraging “motherlessness” or
“fatherlessness in the home”; and (3) promoting a “child-centric” rather than “adult-centric” model of marriage.”8 The defendants insist that “genderless
marriage run[s] counter to . . . [these] norms and ideals,” which is why “man-
8 The defendants also assert that the state has an interest in “accommodating religious freedom and reducing the potential for civic strife.” But, as the Opinion of the Court notes, even if allowing same-sex marriage were likely to lead to religious strife, which is highly doubtful, to say the least, that fact would not justify the denial of equal protection inherent in the gender-based classification of the same-sex marriage bars. See Watson v. City of Memphis, 373 U.S. 526, 535 (1963) (rejecting the city’s proffered justification that delay in desegregating park facilities was necessary to avoid interracial “turmoil,” and explaining “constitutional rights may not be denied simply because of hostility to their assertion or exercise”).
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woman marriage” must be preserved. The Opinion of the Court thoroughly demonstrates why all of these interests
are without merit as justifications for sexual orientation discrimination. I add this brief analysis only to show that the justifications are likewise wholly insufficient under intermediate scrutiny to support the sex-based classifications at the core of these laws.
A. The Idaho defendants assert that the state has an interest in ensuring children have the benefit of parental “gender complementarity.” There must be “space in the law for the distinct role of ‘mother’ [and] the distinct role of ‘father’ and therefore of their united, complementary role in raising offspring,” the Idaho defendants insist. On a slightly different tack, the Nevada intervenors similarly opine that “[s]ociety has long recognized that diversity in education brings a host of benefits to students,” and ask, “[i]f that is true in education, why not in parenting?”
Under the constitutional sex-discrimination jurisprudence of the last forty years, neither of these purported justifications can possibly pass muster as a justification for sex discrimination. Indeed, these justifications are laden with the very “‘baggage of sexual stereotypes’” the Supreme Court has repeatedly disavowed. Califano v. Westcott, 443 U.S. at 89 (quoting Orr, 440 U.S. at 283).
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(i) It should be obvious that the stereotypic notion “that the two sexes bring different talents to the parenting enterprise,” runs directly afoul of the Supreme Court’s repeated disapproval of “generalizations about ‘the way women are,’” VMI, 518 U.S. at 550, or “the way men are,” as a basis for legislation. Just as Orr, 440 U.S. at 279–80, rejected gender-disparate alimony statutes “as effectively announcing the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role,” so a state preference for supposed genderspecific parenting styles cannot serve as a legitimate reason for a sex-based classification.
This conclusion would follow “[e]ven [if] some statistical support can be conjured up for the generalization” that men and women behave differently as marital partners and/or parents, because laws that rely on gendered stereotypes about how men and women behave (or should behave) must be reviewed under intermediate scrutiny. See J.E.B., 511 U.S. at 140. It has even greater force where, as here, the supposed difference in parenting styles lacks reliable empirical support, even “on average.”9 Communicating such archaic gender-role stereotypes to children, or to parents and potential parents, is not a legitimate governmental
9 As one of the plaintiffs’ expert psychologists, Dr. Michael Lamb, explained, “[t]here . . . is no empirical support for the notion that the presence of both male and female role models in the home enhances the adjustment of children and adolescents.”
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interest, much less a substantial one. (ii) The assertion that preserving “man-woman marriage” is permissible
because the state has a substantial interest in promoting “diversity” has no more merit than the “gender complementarity” justification. Diversity is assuredly a weighty interest in the context of public educational institutions, with hundreds or thousands of individuals. But “[t]he goal of community diversity has no place . . . as a requirement of marriage,” which, by law, is a private institution consisting only of two persons. Baker v. State, 744 A.2d at 910 (Johnson, J., concurring in part and dissenting in part). “To begin with, carried to its logical conclusion, the [Nevada intervenors’] rationale could require all marriages to be between [two partners], not just of the opposite sex, but of different races, religions, national origins, and so forth, to promote diversity.” Id. Such an absurd requirement would obviously be unconstitutional. See Loving, 388 U.S. 1.
Moreover, even if it were true that, on average, women and men have different perspectives on some issues because of different life experiences, individual couples are at least as likely to exhibit conformity as diversity of personal characteristics. Sociological research suggests that individual married couples are more likely to be similar to each other in terms of political ideology, educational background, and economic background than they are to be dissimilar;
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despite the common saying that “opposites attract,” in actuality it appears that “like attracts like.” See, e.g., John R. Alford et al., The Politics of Mate Choice, 73:2 J. Politics 362, 376 (2011) (“[S]pousal concordance in the realm of social and political attitudes is extremely high.”); Jeremy Greenwood et al., Marry Your Like: Assortative Mating and Income Inequality (Population Studies Ctr., Univ. Of Penn., Working Paper No. 14-1, at 1, 2014) (Since the 1960s, “the degree of assortative mating [with regard to educational level] has increased.”). Further, there is no evidence of which I am aware that gender is a better predictor of diversity of viewpoints or of parenting styles than other characteristics. Such “gross generalizations that would be deemed impermissible if made on the basis of race [do not become] somehow permissible when made on the basis of gender.” J.E.B., 511 U.S. at 139–40.
In short, the defendants’ asserted state interests in “gender complementarity” and “gender diversity” are not legitimate “important governmental objectives.” See Craig, 429 U.S. at 197. Accordingly, I do not address whether excluding same-sex couples from marriage is substantially related to this goal.
B. The defendants also argue that their states have an important interest in “encouraging marriage between opposite-sex partners” who have biological children, so that those children are raised in an intact marriage rather than in a
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cohabiting or single-parent household. Assuming that this purpose is in fact a “important governmental objective,” the defendants have entirely failed to explain how excluding same-sex couples from marriage is substantially related to achieving the objective of furthering family stability.
(i) I will interpret the asserted state goal in preventing “fatherlessness” and “motherlessness” broadly. That is, I shall assume that the states want to discourage parents from abandoning their children by encouraging dual parenting over single parenting. If the asserted purpose were instead read narrowly, as an interest in ensuring that a child has both a mother and a father in the home (rather than two mothers or two fathers), the justification would amount to the same justification as the asserted interest in “gender complementarity,” and would fail for the same reason. That is, the narrower version of the family stability justification rests on impermissible gender stereotypes about the relative capacities of men and women.
Discouraging single parenting by excluding same-sex couples from marriage is oxymoronic, in the sense that it will likely achieve exactly the opposite of what the states say they seek to accomplish. The defendants’ own evidence suggests that excluding same-sex couples from marriage renders their unions less stable, increasing the risk that the children of those couples will be raised by one parent rather than two.
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True, an increasing number of children are now born and raised outside of marriage, a development that may well be undesirable.10 But that trend began apace well before the advent of same-sex marriage and has been driven by entirely different social and legal developments. The trend can be traced to declines in marriage rates, as well as to the rise in divorce rates after the enactment of “no fault” divorce regimes in the late 1960s and early 1970s. “The proportion of adults who declined to marry at all rose substantially between 1972 and 1998 . . . . [In the same period,] [t]he divorce rate rose more furiously, to equal more than half the marriage rate, portending that at least one in two marriages would end in divorce.” Cott, Public Vows, at 203. The defendants’ assertion that excluding same-sex couples from marriage will do anything to reverse these trends is utterly unsubstantiated.
(ii) The defendants’ appeal to biology is similarly without merit. Their core assertion is that the states have a substantial interest in channeling opposite-sex couples into marriage, so that any accidentally produced children are more likely to be raised in a two-parent household. But the exclusion of same-sex couples from
10 According to the defendants, “[b]etween 1970 and 2005, the proportion of children living with two married parents dropped from 85 percent to 68 percent,” and as of 2008, “[m]ore than a third of all U.S. children [were] . . . born outside of wedlock.” See Benjamin Scafidi, Institute for American Values, The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and All Fifty States 7 (2008).
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the benefits and obligations of state-sanctioned marriage is assuredly not “substantially related,” Craig, 429 U.S. at 197, to achieving that goal.
The reason only opposite-sex couples should be allowed to marry, we are told by the defendants, is that they “possess the unique ability to create new life.” But both same-sex and opposite-sex couples can and do produce children biologically related only to one member of the couple, via assisted reproductive technology or otherwise. And both same-sex and opposite-sex couples adopt children, belying the notion that the two groups necessarily differ as to their biological connection to the children they rear.
More importantly, the defendants “cannot explain how the failure of opposite-sex couples to accept responsibility for the children they create relates at all to the exclusion of same-sex couples from the benefits of marriage.” Baker, 744 A.2d at 911 (Johnson, J., concurring in part and dissenting in part). For one thing, marriage has never been restricted to opposite-sex couples able to procreate; as noted earlier, the spousal relationship, economic and otherwise, has always been understood as a sufficient basis for state approval and regulation. See supra pp. 18–21. For another, to justify sex discrimination, the state must explain why the discriminatory feature is closely related to the state interest. See Hogan, 458 U.S. at 725–26. The states thus would have to explain, without reliance on sex-
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stereotypical notions, why the bans on same-sex marriage advance their interests in inducing more biological parents to marry each other. No such showing has been or can be made.
Biological parents’ inducements to marry will remain exactly what they have always been if same-sex couples can marry. The legal benefits of marriage—taxation, spousal support, inheritance rights, familial rights to make decisions concerning the illness and death of a spouse, and so on—will not change. See, e.g. Turner v. Safley, 482 U.S. 78, 95–96 (1987). The only change will be that now-excluded couples will enjoy the same rights. As the sex-based exclusion of same-sex couples from marrying does not in any way enhance the marriage benefits available to opposite-sex couples, that exclusion does not substantially advance—or advance at all—the state interest in inducing opposite-sex couples to raise their biological children within a stable marriage.
(iii) Finally, the defendants argue that “the traditional marriage institution” or “man-woman marriage . . . is relatively but decidedly more child-centric” than “genderless marriage,” which they insist is “relatively but decidedly more adultcentric.”
These assertions are belied by history. As I have noted, see supra pp. 18–24, “traditional marriage” was in fact quite “adult-centric.” Marriage was,
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above all, an economic arrangement between spouses. See, e.g., Cott, Public Vows, at 54. Whether or not there were children, the law imposed support obligations, inheritance rules, and other rights and burdens upon married men and women. Moreover, couples unwilling or unable to procreate have never been prevented from marrying. Nor was infertility generally recognized as a ground for divorce or annulment under the old fault-based regime, even though sexual impotence was. See, e.g., Vernier, I §50, II § 68.
Further, the social concept of “companionate marriage”—that is, legal marriage for companionship purposes without the possibility of children—has existed since at least the 1920s. See Christina Simmons, Making Marriage Modern: Women’s Sexuality from the Progressive Era to World War II 121 (2009). The Supreme Court called on this concept when it recognized the right of married couples to use contraception in 1965. Griswold, 381 U.S. at 486. Griswold reasoned that, with or without procreation, marriage was “an association for as noble a purpose as any.” Id.
Same-sex marriage is thus not inherently less “child-centric” than “traditional marriage.”11 In both versions, the couple may bear or adopt and raise
11 Moreover, if the assertion that same-sex marriages are more “adultcentric” is meant to imply state disapproval of the sexual activity presumed to occur in same-sex marriages, that disapproval could not be a legitimate state purpose. After Lawrence, the right to engage in same-sex sexual activity is
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children, or not. Finally, a related notion the defendants advance, that allowing same-sex
marriage will render the marriage institution “genderless,” in the sense that gender roles within opposite-sex marriages will be altered, is also ahistorical. As I have explained, those roles have already been profoundly altered by social, legislative, and adjudicative changes. All these changes were adopted toward the end of eliminating the gender-role impositions that previously inhered in the legal regulation of marriage.
In short, the “child-centric”/“adult-centric” distinction is an entirely ephemeral one, at odds with the current realities of marriage as an institution. There is simply no substantial relationship between discouraging an “adult-centric” model of marriage and excluding same-sex couples.
III. Conclusion “Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.” J.E.B., 511 U.S. at 130–31. Idaho and Nevada’s same-sex marriage proscriptions are sex based, and these bans do serve
recognized as a protected liberty interest. See 539 U.S. at 578. 37

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to preserve “invidious, archaic, and overbroad stereotypes” concerning gender roles. The bans therefore must fail as impermissible gender discrimination.
I do not mean, by presenting this alternative analysis, to minimize the fact that the same-sex marriage bans necessarily have their greatest effect on lesbian, gay, bisexual, and transgender individuals. Still, it bears noting that the social exclusion and state discrimination against lesbian, gay, bisexual, and transgender people reflects, in large part, disapproval of their nonconformity with gender-based expectations.12 That is, such individuals are often discriminated against because they are not acting or speaking or dressing as “real men” or “real women” supposedly do. “[S]tereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.” Centola v. Porter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); see also Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994). The same-sex marriage prohibitions, in other words, impose harms on sexual orientation and gender identity minorities precisely because they impose and enforce gender-normative behavior.
I do recognize, however, that the gender classification rubric does not
12 Although not evidently represented among the plaintiff class, transgender people suffer from similar gender stereotyping expectations. See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000) (discrimination on the basis of transgender status is also gender discrimination).
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adequately capture the essence of many of the restrictions targeted at lesbian, gay, and bisexual people. Employment discrimination, housing discrimination, and peremptory strikes on the basis of sexual orientation, to name a few of the exclusions gays, lesbians, and other sexual orientation minorities have faced, are primarily motivated by stereotypes about sexual orientation; by animus against people based on their nonconforming sexual orientation; and by distaste for samesex sexual activity or the perceived personal characteristics of individuals who engage in such behavior. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (2014). And those sorts of restrictions do not turn directly on gender; they do not withhold a benefit, choice, or opportunity from an individual because that individual is a man or a woman. Although the gender stereotyping so typical of sex discrimination may be present, see generally Koppelman, 69 N.Y.U. L. Rev. 197, those restrictions are better analyzed as sexual orientation discrimination, as we did in SmithKline. 740 F.3d at 480–84.
As to the same-sex marriage bans in particular, however, the gender discrimination rubric does squarely apply, for the reasons I have discussed. And as I hope I have shown, the concepts and standards developed in more than forty years of constitutional sex discrimination jurisprudence rest on the understanding
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that “[s]anctioning sex-based classifications on the grounds that men and women, simply by virtue of their gender, necessarily play different roles in the lives of their children and in their relationships with each other causes concrete harm to women and to men throughout our society.” Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J. L. & Gender 461, 505 (2007). In my view, the same-sex marriage bans belie that understanding, and, for that reason as well, cannot stand.

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Supreme Court of the United States
No. 14A374
C.L. “BUTCH” OTTER, GOVERNOR OF IDAHO, ET AL., Applicants
v.
SUSAN LATTA, ET AL.
O R D E R
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

Dated this 8th day of October 2014.

/s/ Anthony M. Kennedy Associate Justice of the Supreme
Court of the United States

 
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Supreme Court of the United States
No. 14A374
C.L. “BUTCH” OTTER, GOVERNOR OF IDAHO, ET AL., Applicants
v.
SUSAN LATTA, ET AL.
O R D E R
UPON FURTHER CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

Dated this 8th day of October 2014.

/s/ Anthony M. Kennedy Associate Justice of the Supreme
Court of the United States

 
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FILED

FOR PUBLICATION UNITED STATES COURT OF APPEALS

OCT 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN LATTA; TRACI EHLERS; LORI WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA ALTMAYER; AMBER BEIERLE; RACHAEL ROBERTSON,
Plaintiffs - Appellees,

No. 14-35420 D.C. No. 1:13-cv-00482-CWD
OPINION re Order

v.

C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity,

Defendant - Appellant,

And

CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity,

Defendant,

STATE OF IDAHO,

Intervenor-Defendant.

SUSAN LATTA; TRACI EHLERS; LORI WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA ALTMAYER; AMBER BEIERLE; RACHAEL ROBERTSON,

No. 14-35421 D.C. No. 1:13-cv-00482-CWD

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Plaintiffs - Appellees, v. C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity,
Defendant, And CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity,
Defendant - Appellant, STATE OF IDAHO,
Intervenor-Defendant Appellant.
Appeal from the United States District Court for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding Argued and Submitted September 8, 2014
San Francisco, California Before: REINHARDT, GOULD, and BERZON, Circuit Judges. PER CURIAM:
On October 10, 2014, the plaintiffs moved for dissolution of the stay of the district court’s order enjoining the enforcement of Idaho’s laws prohibiting same-sex marriage. In Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir.

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Oct. 7, 2014), we decided the appeal, and held unconstitutional Idaho’s statutes and constitutional amendments preventing same-sex couples from marrying and refusing to recognize same-sex marriages performed elsewhere. The stay pending appeal was issued a number of months ago, before the relevant factual and legal developments that dictate the outcome of the present motion. In light of our decision in Latta and the other recent decisions by circuit courts across the country in essentially identical cases, as well as the Supreme Court’s decisions on October 6, 2014 to deny certiorari in all pending same-sex marriage cases and thus to permit same-sex marriages in all affected states notwithstanding any state statute or constitutional provisions to the contrary, Governor Otter can no longer meet the test for the grant or continuation of a stay. We therefore granted the plaintiffs’ motion for dissolution of the stay of the district court’s order on October 13, 2014, effective October 15, 2014.
The party seeking a stay—or continuation of a stay—bears the burden of showing his entitlement to a stay. See Nken v. Holder, 556 U.S. 418, 433–44 (2009). In ruling on the propriety of a stay, we consider four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in
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the proceeding; and (4) where the public interest lies.” Id. at 434. Governor Otter cannot make a strong showing that he is likely to succeed on
the merits. See id. We have now held that the plaintiffs have in fact succeeded on the merits of the case, agreeing with every court of appeals to address same-sex marriage bans subsequent to United States v. Windsor, 133 S. Ct. 2675 (2013). Governor Otter argues that reversal of this case—either via certiorari review or en banc proceedings—remains likely because we applied heightened scrutiny to the laws at issue, whereas nine other circuits have declined to hold that gays and lesbians constitute a suspect class. Governor Otter is wrong. The cases he cites all predate Windsor. The post-Windsor cases either do not reach the question of whether heightened scrutiny under the Equal Protection Clause applies (while applying strict scrutiny under a fundamental rights analysis) or suggest that heightened scrutiny review under the Equal Protection Clause may be applicable. See Baskin v. Bogan, No. 14-2386, 2014 WL 4359059, *1–3 (7th Cir. Sept. 4, 2014); Bostic v. Schaefer, 760 F.3d 352, 375 n.6 (4th Cir. 2014); Bishop v. Smith, 760 F.3d 1070, 1074 (10th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193, 1229–30 (10th Cir. 2014).
The panel’s decision in this case was dictated by SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), which held that heightened scrutiny
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applies to classifications on the basis of sexual orientation. This court voted not to rehear SmithKline en banc only a short time ago, and we are bound by its actions. Specifically, SmithKline is the binding law of the circuit. Moreover, the various courts of appeals to have considered the issue of same-sex marriage post-Windsor have all reached the same result—the invalidation of same-sex marriage bans. These courts have applied varying types of scrutiny or have failed to identify clearly any applicable level, but irrespective of the standard have all reached the same result. Finally, the fact that we applied heightened scrutiny is irrelevant to whether the Supreme Court is likely to grant certiorari to review our decision. The Court is free to review—or not review—the type of scrutiny applied to classifications based on sexual orientation in any case challenging a ban on samesex marriage. The level of scrutiny applied in a particular case is not likely to affect its decision as to which, if any, same-sex marriage case it may ultimately review. Governor Otter’s arguments that are based on SmithKline or the level of scrutiny applied are thus unpersuasive.
Moreover, when a motions panel of this court originally entered the stay of the district court’s order, it did so based on the Supreme Court’s stay in Herbert v. Kitchen, 143 S. Ct. 893 (2014), the Utah same-sex marriage case. However, on Monday, October 6, the Supreme Court denied certiorari and vacated stays in all
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seven of the same-sex marriage cases that were pending before it, including Herbert. As a result of the Supreme Court’s action, marriages have begun in those states. At the time the Supreme Court denied certiorari in all the pending cases, it was aware that there were cases pending in other circuit courts that had not yet been decided but that might subsequently create a conflict. The existence of those pending cases, and the possibility of a future conflict, did not affect the Court’s decision to permit the marriages to proceed, and thus, Governor Otter’s argument that we should maintain the stay in order to await the results of cases pending in other circuits is unavailing.
Additionally, after the panel’s issuance of the merits decision in this case affirming the district court’s injunction, the Supreme Court denied Idaho’s application for a stay of this court’s mandate without published dissent, and vacated Justice Kennedy’s temporary stay entered two days earlier. It did so despite Idaho’s representation to the Court that granting its application was necessary to allow the Court to exercise its “unique role as final arbiter of the profoundly important constitutional questions surrounding the constitutionality of State marriage laws.” Because the Supreme Court has thus rejected the argument that a stay was necessary to any potential exercise of its jurisdiction to review this case, we decline to second-guess that decision. The first Nken factor strongly
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supports dissolution of the stay. We now turn to the second and third factors governing the propriety of a
stay: whether irreparable injury to the applicant will result absent a stay and whether continuance of the stay will injure other parties interested in the proceeding. On the one hand, there is some authority suggesting that “a state suffers irreparable injury whenever an enactment of its people or their representatives is enjoined.” Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997); but see Indep. Living Ctr. of So. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (characterizing this statement in Coal. for Econ. Equity as dicta, and explaining that while “a state may suffer an abstract form of harm whenever one of its acts is enjoined . . . [t]o the extent that is true . . . it is not dispositive of the balance of harms analysis.”), vacated and remanded on other grounds sub nom. Douglas v. Indep. Living Ctr. of So. Cal, Inc., 132 S. Ct. 1204 (2012).1 On the other hand, the plaintiffs and countless gay and lesbian Idahoans would face irreparable injury were we to permit the stay to continue in effect. “Idaho[’s] . . . marriage laws, by preventing same-sex couples from marrying and
1Individual justices, in orders issued from chambers, have expressed the view that a state suffers irreparable injury when one of its laws is enjoined. See Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers); New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). No opinion for the Court adopts this view.
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refusing to recognize same-sex marriages celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous citizens of those states.” Latta, 2014 WL 4977682 at *11; see also Baskin v. Bogan, 14-2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014) (“The harm to homosexuals (and . . . to their adopted children) of being denied the right to marry is considerable.”); Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding that a deprivation of constitutional rights, “for even minimal periods of time, unquestionably constitutes irreparable injury”). Additionally, were this case to be reversed, notwithstanding our firm belief that such an outcome is unlikely, the harm caused by the invalidation of marriages that take place in the interim would primarily be suffered by the couples whose marriages might be rendered of uncertain legality and by their children—not by the state. On balance, we conclude that the second and third Nken factors also support dissolution of the stay.
Finally, we hold that the fourth factor governing issuance or continuance of a stay—the public interest—militates strongly in favor of dissolution of the stay. We repeat: by denying certiorari on October 6, 2014, the Supreme Court has allowed marriages to proceed in fourteen2 states across the nation; all circuit courts
2This figure represents the number of states in circuits directly affected by the Supreme Court’s denial on October 6, 2014 of petitions arising from challenges
(continued...) 8

CaseC:a1s4e-315:1432-0cv-01004/8125-/C20W1D4 DocuIDm:e9n2t71638308FileDdk1tE0n/1tr5y/:11497PagPea9geo:f 9 of 9
of appeals to consider same-sex marriage bans have invalidated those prohibitions as unconstitutional; and this court has held that same-sex marriage bans deprive gays and lesbians of their constitutional rights. The public’s interest in equality of treatment of persons deprived of important constitutional rights thus also supports dissolution of the stay of the district court’s order.
Applying the four Nken factors discussed above, we hold that Governor Otter is no longer entitled to a stay of the district court’s order and we accordingly dissolve the stay effective October 15, 2014. We decline to deny the plaintiffs their constitutional rights any longer.
Notwithstanding the above, we have determined to exercise our discretion to afford the state a second opportunity to obtain an emergency stay of our order from the Supreme Court, even though we see no possible basis for such a stay. For that reason, our order of October 13, 2014 is not made effective until 9 a.m. PDT (noon EST) on October 15, 2014. Otherwise we have determined that the stay of the district court’s order enjoining enforcement of Idaho’s same-sex marriage bans shall be dissolved and have entered the order of this court to that effect.
2(...continued) to state bans on same-sex marriage. We note that thirty-three states as well as the District of Columbia either presently allow same-sex marriages or are located in circuits affected by the Supreme Court’s denials. This figure includes Idaho and Alaska.
9

 
 Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 1 of 17
CONMAG,LC13,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.1 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:13−cv−00482−CWD

Latta et al v. Otter et al

Date Filed: 11/08/2013

Assigned to: Judge Candy W. Dale

Date Terminated: 05/14/2014

Case in other court: U.S. Court of Appeals for the Ninth

Jury Demand: None

Circuit, 14−35420

Nature of Suit: 950 Constitutional − State

U.S. Court of Appeals for the Ninth Circuit, 14−35421

Statute Jurisdiction: Federal Question

Supreme Court of the United States, 14−00765

Supreme Court of the United States, 14−00788

Supreme Court of the United States, 14A374

Cause: 42:1983 Civil Rights Act

Plaintiff

Susan Latta

represented by Deborah A Ferguson Ferguson Durham, PLLC 223 N. 6th Street Suite 325 Boise, ID 83702 208−345−5183 Fax: 208−906−8663 Email: daf@fergusondurham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher F Stoll National Center for Lesbian Rights 870 Market St, Suite 370 San Francisco, CA 94102 415−392−6257x320 Email: cstoll@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Durham Ferguson Durham, PLLC 223 N. 6th Street, Suite 325 Boise, ID 83702 208−345−5183 Fax: 208−906−8663 Email: chd@fergusondurham.com ATTORNEY TO BE NOTICED

Shannon Minter National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415 392 6257 Fax: 415−392−8442 Email: sminter@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Traci Ehlers

represented by

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 2 of 17

Deborah A Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher F Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Durham (See above for address) ATTORNEY TO BE NOTICED

Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Lori Watsen

represented by Deborah A Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher F Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Durham (See above for address) ATTORNEY TO BE NOTICED

Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Sharene Watsen

represented by Deborah A Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher F Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Durham (See above for address) ATTORNEY TO BE NOTICED

Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Shelia Robertson

represented by Deborah A Ferguson (See above for address) LEAD ATTORNEY

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 3 of 17

ATTORNEY TO BE NOTICED

Christopher F Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Durham (See above for address) ATTORNEY TO BE NOTICED

Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Andrea Altmayer

represented by Deborah A Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher F Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Durham (See above for address) ATTORNEY TO BE NOTICED

Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Amber Beierle

represented by Deborah A Ferguson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher F Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Craig Durham (See above for address) ATTORNEY TO BE NOTICED

Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Rachael Robertson

represented by Craig Durham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah A Ferguson

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 4 of 17
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher F Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Gov. C.L. (Butch) Otter as Governor of the State of Idaho, in his offical capacity
Defendant Christopher Rich as Recorder of Ada County, Idaho, in his offical capacity

represented by Monte N Stewart Stewart Taylor & Morris PLLC 12550 W. Explorer Drive, Suite 100 Boise, ID 83713 208−345−3333 Fax: 208−345−4461 Email: mstewart@stm−law.com TERMINATED: 10/16/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Perry Office of the Governor State Capitol Boise, ID 83720 (208) 334−2100 Fax: (208) 854−3036 Email: tom.perry@gov.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cally Ann Younger Governor's Office State Capitol PO Box 83720 Boise, ID 83720 208−334−2100 Email: cally.younger@gov.idaho.gov ATTORNEY TO BE NOTICED
Daniel W Bower STEWART TAYLOR & MORRIS PLLC 12550 W. Explorer Dr. Suite 100 Boise, ID 83713 208−345−3333 Fax: 208−345−4461 Email: dbower@stm−law.com TERMINATED: 10/16/2014 ATTORNEY TO BE NOTICED
represented by Clay R Smith OFFICE OF ATTORNEY GENERAL POB 83720 Boise, ID 83720−0010 (208) 334−4118

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 5 of 17
Fax: (208) 854−8073 Email: clay.smith@ag.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Lamar Olsen OFFICE OF THE ATTORNEY GENERAL POB 83720 Boise, ID 83720−0010 (208) 334−2400 Fax: (208) 854−8073 Email: steven.olsen@ag.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
W Scott Zanzig Office of the Idaho Attorney General, Civil Litigation POB 83720 Boise, ID 83720−0010 208−332−3556 Email: scott.zanzig@ag.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore E Argyle ADA COUNTY PROSECUTOR'S OFFICE Civil Division 200 W. Front Street, Room 3191 Boise, ID 83702 (208) 287−7700 Fax: (208) 287−7719 Email: teda@adaweb.net TERMINATED: 01/02/2014

V. Intervenor Defendant State of Idaho
Amicus Cornerstone Family Council of Idaho

represented by Clay R Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W Scott Zanzig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew C Williams Williams Law, P.L.L.C. 129 E. Pine Ave. Meridian, ID 83642 (208) 908−6066 Fax: (208) 908−6732 Email: matt@williamslawoffice.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth J Connelly Alliance Defending Freedom

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 6 of 17
15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Email: kconnelly@alliancedefendingfreedom.org PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 11/08/2013
11/08/2013
11/08/2013
11/08/2013 11/08/2013
11/08/2013 11/12/2013 11/12/2013 11/12/2013
11/13/2013 11/18/2013 11/19/2013 11/19/2013
11/20/2013

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400 receipt number 0976−1082349.), filed by All Plaintiffs. (Attachments: # 1 Cover Sheet, # 2 Summons Defendant Otter, # 3 Summons Defendant Rich)(Ferguson, Deborah)
2 MOTION FOR PRO HAC VICE APPEARANCE by Shannon P. Minter. ( Filing fee $ 225 receipt number 0976−1082369.)Deborah A Ferguson appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 12/2/2013 (Ferguson, Deborah)
3 MOTION FOR PRO HAC VICE APPEARANCE by Christopher F. Stoll. ( Filing fee $ 225 receipt number 0976−1082372.)Deborah A Ferguson appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 12/2/2013 (Ferguson, Deborah)
4 Corporate Disclosure Statement by Susan Latta. (Ferguson, Deborah)
5 DOCKET ENTRY ORDER approving 2 Motion for Pro Hac Vice Appearance of attorney Shannon Minter for Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, for Lori Watsen, Sharene Watsen; approving 3 Motion for Pro Hac Vice Appearance of attorney Christopher F Stoll for Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
6 Summons Issued as to C.L. (Butch) Otter, Christopher Rich. (Print attached Summons for service.) (Attachments: # 1 Summons)(cjm)
7 SUMMONS Returned Executed by Susan Latta. C.L. (Butch) Otter served on 11/12/2013, answer due 12/3/2013. (Ferguson, Deborah)
8 SUMMONS Returned Executed by Susan Latta. Christopher Rich served on 11/12/2013, answer due 12/3/2013. (Ferguson, Deborah)
CORRECTIVE ENTRY − The entry docket number 7 Summons Returned Executed filed by Susan Latta was filed incorrectly in this case as it is a blank document. The filing party shall re−submit their correct filing using the event of "Errata" located under Other Documents and link to docket #7.(cjm)
9 ERRATA by Plaintiff Susan Latta re 7 Summons Returned Executed C.L. (Butch) Otter served on 11/12/2013. (Ferguson, Deborah)
10 NOTICE of Appearance by Theodore E Argyle on behalf of Christopher Rich (Argyle, Theodore)
11 STIPULATION of the parties by Susan Latta. (Durham, Craig)
12 ORDER ON STIPULATION re 11 Stipulation. C.L. (Butch) Otter answer due 1/13/2014; Christopher Rich answer due 1/13/2014. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
13 NOTICE of Hearing: Telephonic Scheduling Conference set for 1/15/2014 10:30 AM MST Telephonic Hearing − Boise Courtroom 6 before Judge Candy W. Dale. (Attachments: # 1 Litigation Plan Letter, # 2 Litigation Plan) (ah)

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 7 of 17

12/02/2013 12/02/2013
12/02/2013 12/11/2013
12/11/2013 12/12/2013 12/12/2013 12/13/2013 12/13/2013
12/13/2013 12/23/2013 12/24/2013 12/26/2013 01/02/2014 01/07/2014 01/07/2014 01/08/2014 01/09/2014

14 NOTICE of Appearance by Thomas C. Perry on behalf of C.L. (Butch) Otter (Perry, Thomas)
15 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, C.L. (Butch) Otter, Christopher Rich, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen re 14 Notice of Appearance, 1 Complaint, 10 Notice of Appearance Consent/Objection to Magistrate due by 2/3/2014. (cjm)
16 Docket entry only − CONSENT to Magistrate Judge filed. (cjm)
17 AMENDED DOCKET ENTRY NOTICE of Hearing: Telephonic Scheduling Conference currently set for 1/15/2014 10:30 AM MST is hereby VACATED and RE−SET for 1/16/2014 02:30 PM MST Telephonic Hearing − Boise Courtroom 6 before Judge Candy W. Dale. Counsel for Plaintiff to initiate the conference call and when all parties are on the line, connect to the courtroom at 208−334−9945. Litigation Plan(s) to be filed on or before 1/9/2014. (ah)
18 MOTION to Intervene W Scott Zanzig appearing for Intervenor Defendant State of Idaho. Responses due by 1/6/2014 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − Proposed Answer)(Zanzig, W)
19 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for State of Idaho re 18 MOTION to Intervene Consent/Objection to Magistrate due by 2/13/2014. (cjm)
20 Docket entry only − CONSENT to Magistrate Judge filed. (cjm)
21 NOTICE by Christopher Rich of Non−Objection to State of Idaho's Motion to Intervene (Argyle, Theodore)
CORRECTIVE ENTRY − The entry docket number 21 Notice (Other) filed by Christopher Rich was filed incorrectly in this case. The filing party shall re−submit their filing using the correct event of "Response to Motion" located under Responses and Replies as this correctly terms the Response deadline.(cjm)
22 RESPONSE to Motion re 18 MOTION to Intervene Notice of Non−Objection filed by Christopher Rich. Replies due by 12/30/2013.(Argyle, Theodore)
23 Docket entry only − CONSENT to Magistrate Judge filed. (st) (Entered: 12/24/2013)
24 RESPONSE to Motion re 18 MOTION to Intervene Plaintiffs Response filed by Susan Latta. Replies due by 1/10/2014.(Ferguson, Deborah)
25 CERTIFICATE OF SERVICE by Susan Latta re 24 Response to Motion to Intervene (Ferguson, Deborah)
26 NOTICE of Substitution − Attorney W Scott Zanzig,Steven Lamar Olsen,Clay R Smith for Christopher Rich added. Attorney Theodore E Argyle terminated. (Zanzig, W)
27 NOTICE of Appearance by Cally Ann Younger on behalf of C.L. (Butch) Otter (Younger, Cally)
28 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Susan Latta. (Attachments: # 1 Exhibit A to Plaintiffs' Litigation Plan)(Ferguson, Deborah)
29 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by C.L. (Butch) Otter. (Perry, Thomas)
30 MOTION to Dismiss W Scott Zanzig appearing for Defendant Christopher Rich. Responses due by 2/3/2014 (Attachments: # 1 Memorandum in Support, # 2 Attachment A (Part 1) Households and Families: 2010, 2010 Census Briefs, # 3 Attachment A (Part 2) Households and Families: 2010 Census Briefs, # 4 Attachment B Marriage Rates by State: 1990, 1995, and 1999−2011, # 5 Attachment C Births: Preliminary Data for 2012, National Vital Statistics Reports, # 6 Attachment D W. Bradford Wilson et al., Why Marriage Matters: Thirty Conclusions from Social Sciences (3d ed. 2011), # 7 Attachment E W. Kristen Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do About It? Child Research Brief (June 2002), # 8 Attachment F Paul R.

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 8 of 17

01/09/2014 01/09/2014 01/13/2014 01/13/2014
01/13/2014 01/15/2014 01/17/2014
01/17/2014 01/21/2014
01/22/2014 01/23/2014 01/28/2014 01/29/2014 01/30/2014 01/31/2014 02/18/2014

Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well−Being of the Next Generation, 15 Future of Children No. 2 (Fall 2005), # 9 Attachment G Elizabeth Wildsmith et al., Childbearing Outside of Marriage: Estimates and Trends in the United States, Child Research Brief (Nov. 2011), # 10 Attachment H Benjamin Scafide, Principal Investigator, The Taxpayer Costs of Divorce and Unwed Childbearing: First Ever Estimate for the Nation and All Fifty States (2008))(Zanzig, W)
31 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Christopher Rich. (Zanzig, W)
32 REPLY to Response to Motion re 18 MOTION to Intervene filed by State of Idaho.(Zanzig, W)
33 ANSWER to 1 Complaint, by C.L. (Butch) Otter.(Perry, Thomas)
34 AMENDED DOCKET ENTRY NOTICE of Hearing: Telephonic Scheduling Conference currently set for 1/16/2014 02:30 PM MST is hereby rescheduled to occur in−person, Boise − Courtroom 6 before Judge Candy W. Dale. Pro hac vice counsel will be allowed to appear via telephone. (same date and time as previously set) (ah)
35 DOCKET ENTRY NOTICE of Hearing on Motion: 18 MOTION to Intervene − Motion Hearing set for 1/16/2014 02:30 PM MST in Boise − Courtroom 6 before Judge Candy W. Dale. (ah)
36 ERRATA by Defendant Christopher Rich re 30 MOTION to Dismiss . (Smith, Clay)
37 CASE MANAGEMENT ORDER. Amended Pleadings due by 1/31/2014. Joinder of Parties due by 1/31/2014. Motions for Summary Judgment due by 2/18/2014. Responses to motions for summary judgment due by 3/20/2014. Replies to responses to motions for summary judgment due by 4/4/2014. A hearing before the undersigned on all pending motions is scheduled for May 5, 2014 at 9:30 a.m. in Boise Courtroom 6. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
Set Deadlines as to 30 MOTION to Dismiss . Responses due by 2/18/2014. Motion Hearing set for 5/5/2014 09:30 AM in Boise − Courtroom 6 before Judge Candy W. Dale. Per Order 37 . (cjm)
38 ORDER granting 18 Motion to Intervene. IT IS FURTHER ORDERED that the State of Idaho shall file its answer or other responsive pleading, including its planned joinder in Defendant Richs Motion to Dismiss, on or before 1/28/2014. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
39 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel. Consent/Objection to Magistrate due by 2/11/2014. (cjm)
40 ALL PARTIES HAVE CONSENTED TO PROCEED BEFORE A US MAGISTRATE JUDGE(cjm)
41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM W Scott Zanzig appearing for Intervenor Defendant State of Idaho. Responses due by 2/21/2014 (Attachments: # 1 Memorandum in Support)(Zanzig, W)
42 AMENDED COMPLAINT against All Defendants, filed by All Plaintiffs.(Ferguson, Deborah)
43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM W Scott Zanzig appearing for Defendant Christopher Rich, Intervenor Defendant State of Idaho. Responses due by 2/24/2014 (Zanzig, W)
44 ANSWER to 42 Amended Complaint by C.L. (Butch) Otter.(Perry, Thomas)
45 MOTION for Summary Judgment filed by Deborah A Ferguson appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 3/14/2014 (Ferguson, Deborah)

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 9 of 17

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02/18/2014
02/18/2014 02/18/2014 02/18/2014 02/19/2014

46 Statement of Facts re 45 MOTION for Summary Judgment filed by filed by Susan Latta.(Ferguson, Deborah)
47 DECLARATION of Dr. Michael E. Lamb re 45 MOTION for Summary Judgment filed by filed by Susan Latta . (Attachments: # 1 Exhibit A, Dr. Lamb, # 2 Exhibit B, Dr. Lamb)(Ferguson, Deborah)
48 DECLARATION of Susan Latta re 45 MOTION for Summary Judgment filed by filed by Susan Latta . (Attachments: # 1 Exhibit A, Susan Latta, # 2 Exhibit B, Susan Latta)(Ferguson, Deborah)
49 DECLARATION of Traci Ehlers re 45 MOTION for Summary Judgment filed by filed by Susan Latta et al. (Ferguson, Deborah)
50 DECLARATION of Lori Watsen re 45 MOTION for Summary Judgment filed by filed by Susan Latta et al. (Attachments: # 1 Exhibit A, Lori Watsen, # 2 Exhibit B, Lori Watsen)(Ferguson, Deborah)
51 DECLARATION of Sharene Watsen re 45 MOTION for Summary Judgment filed by filed by Susan Latta et al. (Attachments: # 1 Exhibit A, Sharene Watsen, # 2 Exhibit B, Sharene Watsen, # 3 Exhibit C, Sharene Watsen, # 4 Exhibit D, Sharene Watsen)(Ferguson, Deborah)
52 DECLARATION of Andrea Altmayer re 45 MOTION for Summary Judgment filed by filed by Susan Latta et al. (Ferguson, Deborah)
53 DECLARATION of Shelia Robertson re 45 MOTION for Summary Judgment filed by filed by Susan Latta et al. (Ferguson, Deborah)
54 DECLARATION of Amber Beierle re 45 MOTION for Summary Judgment filed by filed by Susan Latta et al. (Ferguson, Deborah)
55 DECLARATION of Rachael Robertson re 45 MOTION for Summary Judgment filed by filed by Susan Latta et al. (Ferguson, Deborah)
56 MOTION for Leave to File Excess Pages Unopposed Thomas C. Perry appearing for Defendant C.L. (Butch) Otter. Responses due by 3/14/2014 (Perry, Thomas)
57 MOTION for Summary Judgment Thomas C. Perry appearing for Defendant C.L. (Butch) Otter. Responses due by 3/14/2014 (Attachments: # 1 Statement of Undisputed Material Facts, # 2 Memorandum in Support, # 3 Appendix Cover sheet and TOC, # 4 Appendix Tab 1−1, # 5 Appendix Tabs 2−6, # 6 Appendix Tab 7, # 7 Appendix Tabs 8−11, # 8 Appendix Tabs 12−16, # 9 Appendix Tabs 17−24, # 10 Appendix Tabs 25−29, # 11 Appendix Tabs 30−40, # 12 Appendix Tabs 41−44)(Perry, Thomas)
58 MOTION to Take Judicial Notice Shannon Minter appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 3/14/2014 (Minter, Shannon)
59 MEMORANDUM in Support of Motion re 45 MOTION for Summary Judgment filed by filed by Susan Latta et al. (Ferguson, Deborah) Modified on 2/19/2014 to edit event text per Corrective Entry (cjm).
60 DECLARATION of Shannon P. Minter re 58 MOTION to Take Judicial Notice filed by Susan Latta . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Minter, Shannon)
61 RESPONSE to Motion re 30 MOTION to Dismiss , 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Susan Latta. Replies due by 3/7/2014.(Ferguson, Deborah)
CORRECTIVE ENTRY − The entry docket number 59 Memorandum/Brief (generic) filed by Susan Latta was filed incorrectly in this case as the wrong event was used. The correct event is "Memorandum in Support of Motion" located under Responses and Replies. The filing party does not need to re−submit as the Clerk's Office will edit the entry. In future please note that Memorandum in Support, Statement of Material Facts, and Declarations are "preferred" filed as attachments to the Motion.(cjm)

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 10 of 17

02/19/2014
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62 DOCKET ENTRY ORDER − Having reviewed the record and Defendant Governor Otter's Unopposed Motion for Leave to File Overlength Memorandum in Support of Motion for Summary Judgment (Dkt. 56 ), and good cause appearing therefor, the Court hereby GRANTS the motion. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by mcb)
63 DOCKET ENTRY NOTICE − The parties are hereby advised that the response and reply deadlines generated by CM/ECF shall govern filings in connection with Plaintiffs' Request for Judicial Notice (Dkt. 58 ). Signed by Judge Candy W. Dale. (mcb)
64 MOTION FOR PRO HAC VICE APPEARANCE by Kenneth J. Connelly. ( Filing fee $ 225 receipt number 0976−1125555.) Matthew C Williams appearing for Amicus Cornerstone Family Council of Idaho. Responses due by 3/21/2014 (Williams, Matthew) Modified on 2/26/2014 to edit filing party in the docket text at the attorney's request (st).
65 MOTION for Leave to File Brief of Proposed Amicus Curiae Cornerstone Family Council of Idaho in Support of Defendant Governor C.L. "Butch" Otter's Motion for Summary Judgment Matthew C Williams appearing for Amicus Cornerstone Family Council of Idaho. Responses due by 3/21/2014 (Williams, Matthew)
66 MEMORANDUM in Support re 65 MOTION for Leave to File Brief of Proposed Amicus Curiae Cornerstone Family Council of Idaho in Support of Defendant Governor C.L. "Butch" Otter's Motion for Summary Judgment filed by Cornerstone Family Council of Idaho.(Williams, Matthew)
67 DOCKET ENTRY ORDER approving 64 Motion for Pro Hac Vice Appearance of attorney Kenneth J Connelly for Amicus Cornerstone Family Council of Idaho. Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
68 ORDER granting 65 Motion for Leave to File Brief of Proposed Amicus Curiae Cornerstone Family Council of Idaho. The proposed brief at Docket No. 66 shall stand as the brief of amicus curiae Cornerstone Family Council of Idaho. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
CORRECTIVE ENTRY − The entry docket number 66 Memorandum in Support of Motion, filed by Cornerstone Family Council of Idaho, 65 MOTION for Leave to File Brief of Proposed Amicus Curiae Cornerstone Family Council of Idaho in Support of Defendant Governor C.L. "Butch" Otter's Motion for Summary Judgment filed by Cornerstone Family Council of Idaho were filed incorrectly in this case as it pertains to the Certificate of Service only. The filing party shall refer to ECF Procedure #8 and re−submit their correct certificate of service using the event of "Certificate of Service" located under Service of Process and link to dockets 65 and 66. (cjm)
69 CERTIFICATE OF SERVICE by Cornerstone Family Council of Idaho re 66 Memorandum in Support of Motion, 65 MOTION for Leave to File Brief of Proposed Amicus Curiae Cornerstone Family Council of Idaho in Support of Defendant Governor C.L. "Butch" Otter's Motion for Summary Judgment (Williams, Matthew)
70 RESPONSE to Motion re 58 MOTION to Take Judicial Notice filed by Christopher Rich, State of Idaho. Replies due by 4/3/2014.(Smith, Clay)
71 RESPONSE to Motion re 58 MOTION to Take Judicial Notice filed by C.L. (Butch) Otter. Replies due by 4/3/2014.(Perry, Thomas)
72 DOCKET ENTRY ORDER − Having reviewed Plaintiffs' Motion for Judicial Notice (Dkt. 58 ) and Defendants' notices of non−opposition (Dkt. 70 , 71 ), and finding the materials attached to the motion comport with FRE 201, the Court hereby GRANTS Plaintiffs' motion. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (mcb)

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03/31/2014 03/31/2014 04/04/2014 04/04/2014

73 RESPONSE to Motion re 30 MOTION to Dismiss , 45 MOTION for Summary Judgment filed by, 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant Rich and Defendant−Intervenor Idaho's Combined Response to Plaintiffs' Motion for Summary Judgment and Reply in Support of Motions to Dismiss filed by Christopher Rich, State of Idaho. Replies due by 4/7/2014. (Attachments: # 1 Defendant Rich and Defendant−Intervenor Idaho's Statement of Material Facts re Plaintiffs' Motion for Summary Judgment)(Smith, Clay)
74 MOTION Judicial Notice re 30 MOTION to Dismiss , 45 MOTION for Summary Judgment filed by, 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Clay R Smith appearing for Defendant Christopher Rich, Intervenor Defendant State of Idaho. Responses due by 4/14/2014 (Smith, Clay)
75 RESPONSE to Motion re 57 MOTION for Summary Judgment filed by Christopher Rich, State of Idaho. Replies due by 4/7/2014.(Smith, Clay)
76 MEMORANDUM in Opposition re 57 MOTION for Summary Judgment filed by Susan Latta. Replies due by 4/7/2014. (Attachments: # 1 Plaintiffs' Response to Governor's Statement of Facts, # 2 Dr. Lamb's Supplemental Declaration)(Ferguson, Deborah)
77 MOTION to Take Judicial Notice Deborah A Ferguson appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 4/14/2014 (Attachments: # 1 Declaration of Deborah A. Ferguson in Support of Request to Take Judicial Notice, # 2 Exhibit A to Declaration, # 3 Exhibit B to Declaration)(Ferguson, Deborah)
78 MOTION for Leave to File Excess Pages Deborah A Ferguson appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 4/14/2014 (Ferguson, Deborah)
79 MOTION for Leave to File Overlenth Brief Thomas C. Perry appearing for Defendant C.L. (Butch) Otter. Responses due by 4/14/2014 (Perry, Thomas)
80 CERTIFICATE OF SERVICE by Susan Latta re 76 Memorandum in Opposition to Motion, (Ferguson, Deborah)
81 RESPONSE to Motion re 45 MOTION for Summary Judgment filed by filed by C.L. (Butch) Otter. Replies due by 4/7/2014. (Attachments: # 1 Appendix Supplemental, # 2 Objection to Plaintiffs' Statement of Facts)(Perry, Thomas)
82 DOCKET ENTRY ORDER − Good cause appearing, the Court hereby GRANTS Plaintiffs' unopposed Motion to File Excess Pages (Dkt. 78 ) and Defendant Governor Otters Unopposed Motion for Leave to File Overlength Memorandum (Dkt. 79 ). And, finding good cause for expedited briefing, the Court directs the parties to file responses, if any, to the requests for judicial notice at Docket Nos. 74 and 77 on or before April 4, 2014. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (mcb)
83 RESPONSE to Motion re 77 MOTION to Take Judicial Notice filed by Christopher Rich, State of Idaho. Replies due by 4/17/2014.(Smith, Clay)
Reset Deadlines as to 77 MOTION to Take Judicial Notice , 74 MOTION Judicial Notice. Responses due by 4/4/2014. Per Order dkt #82. (cjm)
84 RESPONSE to Motion re 74 MOTION Judicial Notice re 30 MOTION to Dismiss , 45 MOTION for Summary Judgment filed by, 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Susan Latta. Replies due by 4/21/2014.(Ferguson, Deborah)
85 RESPONSE Plaintiffs' Response to Defendant Rich and Defendant− Intervenor's Statement of Material Facts 73 −1 filed by Susan Latta. (Ferguson, Deborah) Modified on 4/7/2014 per Corrective Entry (cjm).

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 12 of 17

04/04/2014 04/04/2014 04/04/2014 04/04/2014 04/04/2014 04/07/2014 04/08/2014
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05/12/2014 05/13/2014

86 RESPONSE to Motion re 74 MOTION Judicial Notice re 30 MOTION to Dismiss , 45 MOTION for Summary Judgment filed by, 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by C.L. (Butch) Otter. Replies due by 4/21/2014.(Perry, Thomas)
87 RESPONSE to Motion re 77 MOTION to Take Judicial Notice filed by C.L. (Butch) Otter. Replies due by 4/21/2014.(Perry, Thomas)
88 REPLY to Response to Motion re 45 MOTION for Summary Judgment filed by Plaintiffs' Motion for Summary Judgment filed by Susan Latta.(Ferguson, Deborah)
89 MOTION for Leave to File Excess Pages Thomas C. Perry appearing for Defendant C.L. (Butch) Otter. Responses due by 4/28/2014 (Perry, Thomas)
90 REPLY to Response to Motion re 57 MOTION for Summary Judgment filed by C.L. (Butch) Otter.(Perry, Thomas)
CORRECTIVE ENTRY − The entry docket number 85 Response to Motion, filed by Susan Latta was filed incorrectly in this case as it is not a Response to Motion. The correct event to use is "Response {generic}" located under Other Documents. No action is needed by the filing party as the Clerk's Office will edit the entry.(cjm)
91 DOCKET ENRTY ORDER − Having reviewed both Plaintiffs' and Defendant Rich and Defendant−Intervenor Idaho's unopposed Motions for Judicial Notice (respectively, Dkt. 77 and 74 ), and finding the materials attached to each comport with FRE 201, the Court hereby GRANTS both motions. In addition, Defendant Governor Otter's Unopposed Motion for Leave to File Overlength Reply (Dkt. 89 ) is GRANTED. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by mcb)
92 NOTICE by Susan Latta et al. of additional authority (Attachments: # 1 Henry v. Himes, # 2 Baskin v. Bogan)(Durham, Craig)
93 NOTICE by C.L. (Butch) Otter of additional authority (Attachments: # 1 Schuette v. BAMN)(Perry, Thomas)
94 RESPONSE re 92 Notice (Other) filed by C.L. (Butch) Otter Response to Plaintiffs' Notice of Additional Authority. (Perry, Thomas)
95 AMENDED DOCKET ENTRY NOTICE of Hearing on Motions: 30 MOTION to Dismiss, 45 MOTION for Summary Judgment, 57 MOTION for Summary Judgment − Motion Hearing set for 5/5/2014 09:30 AM in Boise − Courtroom 3 before Judge Candy W. Dale. (same date/time as previously set, change in courtroom only) (ah)
96 Docket Text Minute Entry for proceedings held before Judge Candy W. Dale: Appearance by Deborah Ferguson, Craig Durham, Shannon Minter, and Christopher Stoll for the Plaintiffs; Thomas Perry and Cally Younger for Defendant Gov. C.L. (Butch) Otter; W. Scott Zanzig and Clay Smith for Defendant Christopher Rich. Motion Hearing held on 5/5/2014 re 30 MOTION to Dismiss, 41 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 45 MOTION for Summary Judgment, 57 MOTION for Summary Judgment. Oral argument heard. Motions taken UNDER ADVISEMENT. Order forthcoming. Time in Court 1 hour 52 mins. (ah)
97 MOTION to Stay Contingent Thomas C. Perry appearing for Defendant C.L. (Butch) Otter. Responses due by 6/5/2014 (Attachments: # 1 Affidavit Stewart Affidavit)(Perry, Thomas)
98 MEMORANDUM DECISION AND ORDER, The Court GRANTS Plaintiffs' Motion for Summary Judgment (Dkt. 45 ). Defendant Governor Otter's Motion for Summary Judgment (Dkt. 57 ) and Defendant Recorder Rich and Defendant−Intervenor Idaho's Motions to Dismiss (Dkt. 30 , 41 , 43 ) are DENIED. The Court hereby DECLARES that Idaho's Marriage Laws are unconstitutional because they violate Plaintiffs' rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The Court PERMANENTLY ENJOINS the State of Idaho and its officers, employees, agents, and political subdivisions from enforcing Article III, § 28 of the Idaho Constitution; Idaho Code Sections 32−201 and 32−209; and any other laws or regulations to the extent they do not recognize same−sex

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 13 of 17

05/13/2014
05/14/2014
05/14/2014 05/14/2014
05/14/2014 05/14/2014
05/14/2014 05/14/2014 05/14/2014 05/14/2014 05/14/2014 05/15/2014
05/19/2014 05/20/2014 05/20/2014

marriages validly contracted outside Idaho or prohibit otherwise qualified same−sex couples from marrying in Idaho. This injunction shall take effect at 9:00 a.m. MDT on May 16, 2014. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
99 MOTION for Hearing re 97 MOTION to Stay Governor Otter's Emergency Request for an Immediate Hearing Thomas C. Perry appearing for Defendant C.L. (Butch) Otter. Responses due by 6/6/2014 (Perry, Thomas) Modified on 5/14/2014 to edit text per Corrective Entry (cjm).
CORRECTIVE ENTRY − The entry docket number 99 MOTION to Stay re 97 MOTION to Stay Contingent (Emergency Request for Hearing) filed by C.L. (Butch) Otter was filed incorrectly in this case as the wrong motion event was used. the correct motion event is "Hearing". No action is needed by the filing party as the Clerks Office will edit the entry. (cjm)
100 ORDER denying 97 Motion to Stay; denying 99 Motion for Hearing. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
101 JUDGMENT is entered in favor of Plaintiffs. The State of Idaho and its officers, employees, agents, and political subdivisions are permanently enjoined from enforcing Article III, § 28 of the Idaho Constitution, Idaho Code §§ 32−201 and 32−209, and any other laws or regulations to the extent they do not recognize same−sex marriages validly contracted outside Idaho orprohibit otherwise qualified same−sex couples from marrying in Idaho. This injunction shall take effect at 9:00 a.m. MDT on 5/16/2014. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
102 NOTICE of Appearance by Monte N Stewart on behalf of C.L. (Butch) Otter (Stewart, Monte)
103 NOTICE OF APPEAL as to 98 Memorandum Decision and Order, by C.L. (Butch) Otter. Filing fee $ 505, receipt number 0976−1159543. (Notice sent to Court Reporter & 9th Cir) (Perry, Thomas) Modified on 5/14/2014 to edit text for linked document (cjm).(14−35420)
104 NOTICE OF APPEAL as to 101 Judgment, by Christopher Rich, State of Idaho. Filing fee $ 505, receipt number 0976−1159571. (Notice sent to Court Reporter & 9th Cir) (Attachments: # 1 Representation Statement)(Zanzig, W)(14−35421)
105 USCA Case Number 14−35420 for 103 Notice of Appeal, filed by C.L. (Butch) Otter. (cjm)
106 USCA Scheduling Order as to 103 Notice of Appeal, filed by C.L. (Butch) Otter. (Notice sent by e−mail to Court Reporter) (cjm)
107 USCA Case Number 14−35421 for 104 Notice of Appeal filed by Christopher Rich, State of Idaho. (cjm)
108 USCA Scheduling Order as to 104 Notice of Appeal filed by Christopher Rich, State of Idaho. (Notice sent by e−mail to Court Reporter) (cjm)
109 ORDER of USCA as to 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. The district courts May 13, 2014 order is temporarily stayed pending this courts disposition of appellants emergency motions for a stay pending appeal. (cjm)
110 AMENDED NOTICE OF APPEAL by C.L. (Butch) Otter. (Notice sent to Court Reporter & 9th Cir) (Stewart, Monte)
111 BILL OF COSTS by Susan Latta. Taxation of Costs due by 5/27/2014 (Stoll, Christopher)
112 ORDER of USCA as to 110 Amended Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho Appellants motions to stay the district courts 5/13/2014 order pending appeal are granted. The court sua sponte expedites the

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 14 of 17

05/27/2014
06/03/2014 06/04/2014 06/04/2014 06/11/2014
06/12/2014 07/02/2014
07/02/2014 07/02/2014 07/02/2014 07/28/2014

briefing and calendaring of these appeals. (cjm) (Entered: 05/21/2014)
113 MOTION for Attorney Fees and Expenses, Craig Durham appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 6/20/2014 (Attachments: # 1 Memorandum in Support of Motion Reasonable Attorneys' Fees and Expenses, # 2 Summary of Attorneys' Fees and Costs, # 3 Declaration of Deborah A. Ferguson, # 4 Exhibit A to Declaration of Deborah A. Ferguson, # 5 Exhibit B to Declaration of Deborah A. Ferguson, # 6 Exhibit C to Declaration of Deborah A. Ferguson, # 7 Declaration of Shannon P. Minter, # 8 Exhibit A to Declaration of Shannon P. Minter, # 9 Exhibit B to Declaration of Shannon P. MInter, # 10 Exhibit C to Declaration to Shannon P. Minter, # 11 Exhibit D to Declaration Shannon P. Minter, # 12 Declaration of Craig H. Durham, # 13 Exhibit A to Declaration of Craig H. Durham, # 14 Declaration of Debora K. Kristensen, # 15 Declaration of Lauren I. Scholnick)(Durham, Craig)
114 TRANSCRIPT REQUEST by Susan Latta for proceedings held on 5/5/2014 before Judge Dale.. (Stoll, Christopher)
115 Consent MOTION for Extension of Time to File Response/Reply as to 113 MOTION for Attorney Fees and Expenses, W Scott Zanzig appearing for Defendant Christopher Rich, Intervenor Defendant State of Idaho. Responses due by 6/30/2014 (Zanzig, W)
116 ORDER GRANTING CONSENT MOTION FOR EXTENSION OF TIME granting 115 Motion for Extension of Time to File Response/Reply re 113 MOTION for Attorney Fees and Expenses,. Responses due by 7/2/2014. Replies due by 8/1/2014. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
117 Transcript filed for dates of 5/5/2014 (Motion Hearing) before Judge Candy W. Dale, re 103 Notice of Appeal, Court Reporter/Transcriber Tamara I. Hohenleitner, Telephone number 208−334−1500. 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 7/7/2014. Redacted Transcript Deadline set for 7/17/2014. Release of Transcript Restriction set for 9/12/2014. (jp) (Entered: 06/12/2014)
118 Notice of Filing of Official Transcript (jp)
119 RESPONSE to Motion re 113 MOTION for Attorney Fees and Expenses, filed by Christopher Rich, State of Idaho. Replies due by 7/21/2014. (Attachments: # 1 Declaration of W. Scott Zanzig, # 2 Exhibit A − Declaration of W. Scott Zanzig, # 3 Exhibit B −Declaration of W. Scott Zanzig, # 4 Exhibit C −Declaration of W. Scott Zanzig, # 5 Exhibit D − Declaration of W. Scott Zanzig, # 6 Exhibit E − Declaration of W. Scott Zanzig, # 7 Exhibit F − Declaration of W. Scott Zanzig, # 8 Exhibit G − Declaration of W. Scott Zanzig, # 9 Exhibit H − Declaration of W. Scott Zanzig, # 10 Exhibit I − Declaration of W. Scott Zanzig, # 11 Exhibit J − Declaration of W. Scott Zanzig, # 12 Exhibit K − Declaration of W. Scott Zanzig, # 13 Exhibit L − Declaration of W. Scott Zanzig, # 14 Exhibit M − Declaration of W. Scott Zanzig, # 15 Exhibit N − Declaration of W. Scott Zanzig)(Zanzig, W)
120 JOINDER by Defendant C.L. (Butch) Otter joining 119 Response to Motion,,, for Attorney Fees and Expenses. (Younger, Cally)
121 ERRATA by Defendant Christopher Rich, Intervenor Defendant State of Idaho re 119 Response to Motion,,, Corrected Memorandum in Response to Motion for Attorneys' Fees (Dkt. 113). (Zanzig, W)
Reset Deadlines as to 113 MOTION for Attorney Fees and Expenses,. Replies due by 8/1/2014. Per Order 116 . (cjm)
122 REPLY to Response to Motion re 113 MOTION for Attorney Fees and Expenses, filed by Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. (Attachments: # 1 Exhibit A, Chart of Defendants' Double Reductions, # 2 Exhibit B, Revised Summary of Attorneys' Fees and Costs)(Durham, Craig)

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 15 of 17

10/07/2014 10/07/2014
10/07/2014 10/07/2014 10/08/2014 10/08/2014
10/08/2014
10/10/2014
10/10/2014 10/13/2014 10/15/2014 10/16/2014 10/22/2014
10/22/2014

123 ORDER of USCA as to 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. 14−35420 and 14−35421 for District of Idaho case 1:13−cv−00482−CWD and 12−17668 for District of Nevada case 2:12−cv−00578−RCJ−PAL are consolidated for purposes of disposition. (cjm)
124 OPINION of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. The judgment of the district court in Latta v. Otter is AFFIRMED. The judgment of the district court in Sevcik v. Sandoval is REVERSED, and the case is REMANDED to the district court. (cjm)
125 ORDER of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. The mandate shall issue forthwith. (cjm) (Entered: 10/08/2014)
126 RECALLED − MANDATE of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho (cjm) Modified on 10/8/2014 to reflect recalled by Order of USCA Dkt 129 (cjm). (Entered: 10/08/2014)
127 ORDER by Supreme Court of the United States, No. 14A374. IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12−17668, 14−35420 & 14−35421, is hereby stayed pending further order of the undersigned or of the Court. (cjm)
128 ORDER by Supreme Court of the United States, No. 14A374. IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12−17668 is hereby vacated. The stay entered with respect to the Ninth Circuits mandate in case Nos. 14−35420 & 14−35421, shall remain in effect pending further order of the undersigned or of the Court. (cjm)
129 ORDER of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. With respect to the emergency motion by the intervenor in appeal No. 12−17668 to recall the mandate in that case, we direct both the appellants and appellees, including the state parties, to respond to the intervenors motion to recall the mandate by 5:00 p.m. Thursday, 10/9/2014. (cjm)
130 ORDER of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated. (cjm)
131 ORDER of USCA (14−35420 and 14−35421) as to 103 Notice of Appeal, filed by C.L. (Butch) Otter and 104 Notice of Appeal filed by Christopher Rich, State of Idaho. (st) (Entered: 10/15/2014)
132 ORDER of USCA (14−35420 and 14−35421) as to 103 Notice of Appeal, filed by C.L. (Butch) Otter and 104 Notice of Appeal filed by Christopher Rich, State of Idaho. (st) (Entered: 10/15/2014)
133 USCA OPINION re Order (14−35420 and 14−35421) as to 103 Notice of Appeal, filed by C.L. (Butch) Otter and 104 Notice of Appeal filed by Christopher Rich, State of Idaho. (st)
134 NOTICE by C.L. (Butch) Otter of Withdrawal of Counsel (Stewart, Monte)
135 ORDER of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. Plaintiffs−Appellees are directed to file a response to Defendant−Appellants petition for rehearing en banc filed with this court on 10/21/2014 within 21 days of the date of this order. (cjm) (Entered: 10/23/2014)
136 ORDER of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. Defendant−Appellants unopposed motion for leave to file a

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11/21/2014 12/02/2014 12/19/2014
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02/05/2015
03/05/2015 03/05/2015

petition for rehearing en banc in excess of the applicable type−volume limitation is GRANTED. (cjm) (Entered: 10/23/2014)
137 ORDER of USCA as to 103 Notice of Appeal, filed by C.L. (Butch) Otter. Governor Otters motion for leave to file a reply in support of his petition for rehearing en banc is granted in part. The reply itself is ordered filed, but the appendix is stricken. (cjm) (Entered: 11/24/2014)
138 Costs Taxed in amount of $ 400.00 against Defendants(cjm) (Entered: 12/03/2014)
139 MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED: Plaintiffs Motion for Reasonable Attorneys Fees and Expenses Through 5/23/2014 (Dkt. 113 ) is GRANTED IN PART AND DENIED IN PART. Plaintiffs are awarded $397,300.00 in attorney fees and $4,363.08 in non−taxable litigation expenses pursuant to 42 U.S.C. § 1988. The foregoing amounts shall be paid with interest at the rate of 0.20 percent per annum from the date of this Order. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
141 Letter from Supreme Court of the United States re Ninth Circuit Court of Appeals cases 14−35420, 14−35421. The petition for a writ of certiorari in the above entitled case was filed on 12/30/2014 and placed on the docket 12/31/2014 as No. 14−765. (cjs) (Entered: 01/13/2015)
142 Letter from Supreme Court of the United States re Ninth Circuit Court of Appeals case 14−35420. The petition for a writ of certiorari in the above entitled case was filed on 1/2/2015 and placed on the docket 1/6/2015 as No. 14−788. (cjs) (Entered: 01/13/2015)
140 ORDER of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. The petitions for rehearing en banc are denied. (cjs) (Entered: 01/13/2015)
143 ORDER of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. Plaintiffs−appellees unopposed motion to transfer consideration of attorneys fees on appeal to the district court is GRANTED. (cjs)
144 MANDATE of USCA as to 110 Notice of Appeal filed by C.L. (Butch) Otter, 103 Notice of Appeal, filed by C.L. (Butch) Otter, 104 Notice of Appeal filed by Christopher Rich, State of Idaho. (cjs)
145 STIPULATION EXTENDING THE BRIEFING SCHEDULE FOR SUPPLEMENTAL ATTORNEYS FEES AND COSTS by Susan Latta. (Ferguson, Deborah)
146 ORDER re 145 Stipulation. Plaintiffs shall file a supplemental motion for attorneys fees and costs, including for fees and costs incurred on appeal, no later than 2/5/2015. Defendants will respond on or before 3/5/2015. Plaintiffs reply, if any, will be filed on or before 3/12/2015. (Case Management deadline set for 2/5/2015.) Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
147 MOTION for Attorney Fees , Supplemental, Craig Durham appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 3/2/2015 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Deborah A. Ferguson in Support of Supplemental Motion for Fees, # 3 Declaration of Shannon P. Minter in Support of Supplemental Motion for Fees, # 4 Declaration of Craig Durham in Support of Supplemental Motion for Fees)(Durham, Craig)
148 RESPONSE to Motion re 147 MOTION for Attorney Fees , Supplemental, filed by Christopher Rich, State of Idaho. Replies due by 3/23/2015.(Zanzig, W)
149 JOINDER re 148 RESPONSE to Motion for Attorney Fees, Supplemental, Cally Ann Younger appearing for Defendant C.L. (Butch) Otter. (Younger, Cally) Modified on 3/6/2015 per Corrective Entry (cjs).

Case 1:13-cv-482 Document <docnum> Filed <datefiled> Page 17 of 17

03/06/2015
03/12/2015 03/13/2015 03/18/2015 06/30/2015 06/30/2015 08/03/2015

CORRECTIVE ENTRY − The entry docket number 149 MOTION for Joinder Joining 148 RESPONSE to Motion for Attorney Fees, Supplemental, filed by C.L. (Butch) Otter was filed incorrectly in this case as the wrong event was used. It is not a motion but a joinder. The correct event for future filings is "Joinder" located under Other Documents. No action is needed by the filing party as the Clerk's Office will term as a pending motion and edit the entry text.(cjs)
150 MOTION for Extension of Time to File Response/Reply as to 148 Response to Motion , unopposed, Craig Durham appearing for Plaintiffs Andrea Altmayer, Amber Beierle, Traci Ehlers, Susan Latta, Rachael Robertson, Shelia Robertson, Lori Watsen, Sharene Watsen. Responses due by 4/6/2015 (Durham, Craig)
151 ORDER granting 150 Motion for Extension of Time to File Response/Reply re 147 MOTION for Attorney Fees , Supplemental,. Replies due by 3/19/2015. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
152 REPLY to Response to Motion re 147 MOTION for Attorney Fees , Supplemental, filed by Susan Latta.(Ferguson, Deborah)
153 Letter from Supreme Court of the United States, No. 14−765 (9CCA 14−35420, 14−35421). The petition for a writ of certiorari is denied. (cjs) (Entered: 07/01/2015)
154 Letter from Supreme Court of the United States, No. 14−788 (9CCA 14−35420, 14−35421). The petition for a writ of certiorari is denied. (cjs) (Entered: 07/01/2015)
155 MEMORANDUM DECISION AND ORDER granting in part and denying in part 147 Plaintiff's Motion for Supplemental Attorneys' Fees and Expenses from 5/24/2014. Plaintiffs are awarded $220,160.00 in supplemental attorneys fees and $6,730.85 in non−taxable litigation expenses pursuant to 42 U.S.C. § 1988.The foregoing amounts shall be paid with interest at the rate of.33 percent per annum from the date of this Order. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

 
 NO. A14-_____

In the
Supreme Court of the United States
_______________

C.L. “Butch” Otter, in his official capacity as Governor of Idaho, Christopher Rich in his official capacity of Recorder of Ada County, Idaho, and the State of Idaho, Petitioners,

v.

Susan Latta, Traci Ehlers, Lori Watsen, Sharene Watsen, Shelia Robertson, Andrea Altmayer, Amber Beierle, and Rachael Robertson, Respondents. _______________

Emergency Application of Governor C.L. “Butch” Otter to Stay Mandate Pending Disposition of Applications for Stay Pending Rehearing And Certiorari

DIRECTED TO THE HONORABLE ANTHONY M. KENNEDY ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT _______________

Thomas C. Perry Counsel to the Governor
OFFICE OF THE GOVERNOR P.O. Box 83720 Boise, Idaho 83720-0034

Gene C. Schaerr LAW OFFICES OF GENE SCHAERR 332 Constitution Ave., NE Washington, D.C. 20002 Telephone: (202) 361-1061 gschaerr@gmail.com

Monte Neil Stewart STEWART TAYLOR & MORRIS PLLC 12550 W. Explorer Drive, Suite 100 Boise, Idaho 83720

October 8, 2014

Counsel for Applicants

TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................... ii INTRODUCTION .......................................................................................................... 1 BACKGROUND ............................................................................................................. 4 JURISDICTION............................................................................................................. 6 REASONS FOR GRANTING THE EMERGENCY STAY ........................................... 7
I. There is a strong likelihood that certiorari will be granted if the en banc Ninth Circuit does not overturn the panel’s decision. .............................................. 8 II. There is a strong likelihood that the district court’s decision will be overturned and the injunction held invalid. ........................................................... 11 III. Without a stay, Idaho will suffer irreparable harm. ..................................... 19 IV. The balance of equities favors a stay. ............................................................ 22 CONCLUSION............................................................................................................. 24 APPENDIX A: Opinion of the Ninth Circuit Panel....................... A-1 APPENDIX B: Mandate of the Ninth Circuit ........................... B-1 APPENDIX C: Decision and Injunction of the District Court ............... C-1 APPENDIX D: District Court Judgment .............................. D-1
i

TABLE OF AUTHORITIES
Cases Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ................................................... 11, 17 Baker v. Nelson, 409 U.S. 810 (1972) ............................................................. 11, 17, 18 Barnes v. E-Systems, Inc. Group Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301
(1991) .......................................................................................................................... 8 Baskin v. Bogan, __ F.3d __, 2014 WL 4359059 (7th Cir. Sept. 4, 2014) .................. 11 Batson v. Kentucky, 476 U.S. 79 (1986) ..................................................................... 10 Bond v. United States, 564 U.S. ___, 131 S. Ct. 2355 (2011) ................................. 4, 21 Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ............... 3, 11 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) ......................... 14 Clark v. Jeter, 486 U.S. 456 (1988) ............................................................................. 14 Conkright v. Frommert, 556 U.S. 1401 (2009) ............................................................. 8 Deauer v. United States, 483 U.S. 1301 (1987) ............................................................ 7 Edelman v. Jordan, 415 U.S. 651 (1974) .................................................................... 18 Elrod v. Burns, 427 U.S. 347 (1976)............................................................................ 23 FCC v. Beach Commc’ns, 508 U.S. 307 (1993) ........................................................... 18 Heller v. Doe, 509 U.S. 312 (1993) .............................................................................. 18 Hollingsworth v. Perry, 558 U.S. 183, 189 (2010) (per curiam)................................... 8 Hollingsworth v. Perry, 570 U.S. ___, 133 S.Ct. 2652 (2013) ...................... 3, 9, 23, 24 INS v. Legalization Assistance Project of Los Angeles County Fed’n of Labor, 510
U.S. 1301 (1993) ......................................................................................................... 8 Int’l Union, United Auto, Aerospace & Agr. Implement Workers of Am., UAW v.
Johnson Controls, Inc., 499 U.S. 187 (1991) ........................................................... 16 Lucas v. Townsend, 486 U.S. 1301 (1988) .................................................................... 8 Maryland v. King, 567 U.S. ___, 133 S.Ct. 1 (2012) ............................................. 19, 22 New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)..................... 19, 22 Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930) .................................................... 12 Parents Involved v. Seattle, 127 S.Ct. 2738 (2007) .................................................... 16 Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 571 U.S.
___, 134 S.Ct. 506 (2013).................................................................................... 19, 22 Rostker v. Goldberg, 448 U.S. 1306 (1980) ............................................................. 8, 23 San Diegans for the Mt. Soledad Nat’l War Memorial v. Paulson, 548 U.S. 1301
(2006) ...................................................................................................................... 7, 8 Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1623 (2014)................ 4 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ...... passim Sosna v. Iowa, 419 U.S. 393 (1975) ............................................................................. 20 Tully v. Griffin, Inc., 429 U.S. 68 (1976)..................................................................... 17 United States v. Lara, 541 U.S. 193 (2004) ................................................................ 21 United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 (2013)......................... passim Vance v. Bradley, 440 U.S. 93 (1979).......................................................................... 19 Williams v. North Carolina, 317 U.S. 287 (1942) ................................................. 12, 20 Windsor v. United States, 699 F.3d 169, 180-85 (2d Cir. 2012) ................................ 11
Statutes
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28 U.S.C. § 1254............................................................................................................. 7 28 U.S.C. § 1651............................................................................................................. 7 28 U.S.C. § 2101............................................................................................................. 7 Defense of Marriage Act (DOMA), § 3 ........................................................ 2, 12, 13, 18 Other Authorities Baker v. Nelson, No. 71-1027, Jurisdictional Statement at 3 (Oct. Term 1972) ...... 17 George Washington, Farewell Address, Sep. 19, 1796, reprinted in GEORGE
WASHINGTON: A COLLECTION 518 (W.B. Allen ed., 1988)....................................... 24 Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747 (2011) ............... 14 Rules Federal Rule of Appellate Procedure 41 ................................................................... 3, 5 Sup. Ct. R. 23.3 .............................................................................................................. 7 State Codes Idaho Code § 32-301....................................................................................................... 5 Idaho Code § 32-309....................................................................................................... 5 State Constitutional Provisions Idaho Const. art. III § 28 ........................................................................................ 5, 16 Orders Herbert v. Evans, 14A65, 573 U.S. (July 18, 2014)...................................................... 8 Herbert v. Kitchen, 13A687, 571 U.S. (Jan. 6, 2014) ................................................... 8 McQuigg v. Bostic, 14A196, 573 U.S. (Aug. 20, 2014).................................................. 8 Order, SmithKline Beecham Corp. v. Abbott Laboratories, No. 11-17357, at 8 (9th
Cir. June 24, 2014) ................................................................................................... 15
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To the Honorable Anthony M. Kennedy, Associate Justice of the Supreme Court of the United States and Circuit Justice for the United States Court of Appeals for the Ninth Circuit:
Applicant respectfully applies for a temporary, immediate stay of the Ninth Circuit’s mandate pending disposition of an emergency stay application now pending before the Ninth Circuit and, if necessary, a full application for stay pending certiorari to be filed in this Court. The application now pending before the Ninth Circuit seeks to stay that court’s mandate affirming a district court order that invalidated and enjoined enforcement of Idaho’s marriage laws to the extent they limit marriage to man-woman unions. Absent an emergency stay from this Court, state and county officials subject to the supervision of the applicant will be required by the Ninth Circuit’s mandate to begin issuing marriage licenses to same-sex couples—in violation of Idaho law—this morning at 8:00 a.m. Mountain time, or 10:00 a.m. Eastern time.
INTRODUCTION Although this case bears some similarity to the marriage cases in which this Court denied review earlier this week, it is fundamentally different in two respects. First, this case merits this Court’s review independent of the marriage context in which it arises. That is because the Ninth Circuit’s decision exacerbates a deep and mature circuit split on the general question whether discrimination on the basis of sexual orientation triggers some form of “heightened scrutiny.” Here, the Ninth Circuit applied its recent (and unreviewed) holding in SmithKline Beecham Corp. v.
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Abbott Labs., 740 F.3d 471 (9th Cir. 2014), reh’g en banc denied, 759 F.3d 990 (9th Cir. 2014), that such discrimination requires heightened scrutiny, and it was on that basis that the court invalidated Idaho’s marriage laws. While the Second Circuit has agreed that heightened scrutiny applies to sexual-orientation discrimination, the Ninth Circuit’s holding on that general point squarely conflicts with decisions of the First, Fourth, Fifth, Sixth, Eighth, Tenth, Eleventh, District of Columbia, and Federal Circuits.
Second, this case will not require the Court to resolve conclusively the broad, fundamental question whether traditional man-woman marriage laws are within the States’ authority under the Fourteenth Amendment. To be sure, Idaho and its elected officials would welcome a ruling rejecting the Ninth Circuit’s analysis as well as all of the Plaintiffs’ alternative grounds for affirmance. But in fact, all this case will require the Court to do is to resolve one or two subsidiary questions—the heightened scrutiny point just discussed and the question whether man-woman marriage laws discriminate based on sexual orientation at all. The Court will then have the option of remanding to the Ninth Circuit for resolution of the Plaintiffs’ remaining challenges to Idaho’s marriage laws, challenges that do not depend on their sexualorientation discrimination theory or on the Ninth Circuit’s holding on that point.
Still, though, like previous decisions invalidating state marriage laws, and like Section 3 of the Defense of Marriage Act (DOMA) that was invalidated by this Court in United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 (2013), the Ninth Circuit’s decision represents an enormous “federal intrusion on state power” to define marriage. Id. at 2692. Indeed, this case involves not just a refusal by the federal
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government to accommodate a State’s definition of marriage, as in Windsor, but an outright abrogation of such a definition—by a federal court wielding a federal injunction and acting under the banner of the federal Constitution. If Windsor and its companion case, Hollingsworth v. Perry, 570 U.S. ___, 133 S.Ct. 2652 (2013), warranted this Court’s review, surely there is a likelihood that this case will too. And if DOMA’s non-recognition was an impermissible “federal intrusion on state power” to define marriage, surely there is at least a good prospect that a majority of this Court will ultimately hold the Ninth Circuit’s equally intrusive heightened scrutiny analysis invalid.
Remarkably, however, unlike the Ninth Circuit itself in Hollingsworth, 133 S. Ct. at 2652, a case that presented similar issues, the Ninth Circuit here has failed to maintain its previously issued stay pending a definitive resolution of this most basic of federalism questions. Moreover, in a stark departure from the usual practice under Federal Rule of Appellate Procedure 41.b, which generally withholds issuance of the mandate until seven days after the time for a petition for rehearing expires, the Ninth Circuit accelerated the issuance of its mandate in this case—in an apparent effort to prevent this Court from having the last word on whether same-sex marriages would occur in Idaho.
Unless stayed, the district court’s injunction and the Ninth Circuit’s mandate will compel Idaho officials to issue marriage licenses to same-sex couples beginning at 8:00 a.m. MDT this morning. Each same-sex marriage performed will be an affront to the interests of the State and its citizens in being able to define marriage through ordinary democratic channels. See, e.g., Schuette v. Coalition to Defend Affirmative
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Action, 134 S.Ct. 1623, 1636 (2014) (“In the federal system States ‘respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times.’”) (quoting Bond v. United States, 564 U.S. ___, 131 S. Ct. 2355, 2364 (2011)). And allowing such marriages now will undercut this Court’s unique role as final arbiter of the profoundly important constitutional questions surrounding the constitutionality of State marriage laws. A stay is urgently needed to preserve these prerogatives pending disposition of the stay application currently pending before the Ninth Circuit and, if necessary, a full application for stay pending certiorari that will be filed with this Court in the event the application to the Ninth Circuit is denied. A stay is also necessary to minimize the enormous disruption to the State and its citizens of potentially having to “unwind” hundreds of same-sex marriages should this Court ultimately conclude, as the Governor strongly maintains, that the Ninth Circuit’s decision and mandate exceed its constitutional authority.
BACKGROUND
Plaintiffs-Respondents’ (“Plaintiffs’”) attack a provision of the Idaho Constitution and two associated statutes that limit marriages in Idaho to manwoman unions and refuse to recognize same-sex marriages contracted outside of Idaho. See Opinion at 4 note 2. Article III, § 28 of the Idaho Constitution, provides that “marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. art. III § 28. The Idaho Code
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also defines marriage as “a personal relation arising out of a civil contract between a man and a woman.” Idaho Code § 32-301. Idaho law likewise proclaims that though marriages contracted outside the State are generally valid, those marriages that “violate the public policy of the state . . . includ[ing] . . . same-sex marriages” are not valid. Id. § 32-309. Respondents argue that these provisions are “subject to heightened scrutiny because they deprive plaintiffs of the fundamental due process right to marriage, and because they deny them equal protection of the law by discriminating against them on the basis of their sexual orientation and their sex.” Opinion at 5. Respondents sought a permanent injunction enjoining enforcement by defendants of article III, section 28 of Idaho’s Constitution, Idaho Code sections 32301 and 32-309, and any other sources of state law to exclude the Unmarried Plaintiffs from Marriage or to refuse recognition of the marriages of Married Plaintiffs. Id. at 5.
The circuit panel heard argument on September 8, 2014, and on October 7, 2014, affirmed the district court’s decision declaring Idaho’s marriage laws unconstitutional. Opinion at 34. Initially, the circuit panel did not issue a mandate contemporaneously with the opinion, leaving the Applicants with the impression that they would have the time usually afforded under Federal Rules of Appellate Procedure 41 to seek additional appellate review. But following the close of business, the circuit panel at 6:00 pm MDT issued its mandate requiring issuance of same-sex marriage licenses. Absent a stay, the district court’s injunction will require the issuance of marriage licenses this morning, October 8, 2014.
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The circuit panel’s 34-page decision in favor of Respondents ruled that Idaho’s marriage laws violate the Equal Protection Clause of the Fourteenth Amendment “because they deny lesbians and gays who wish to marry persons of the same sex a right to afford individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.” Opinion at 6. This conclusion turned on one central holding: The court found that Idaho’s Marriage Laws discriminate on the basis of sexual orientation, and according to the Ninth Circuit’s decision in SmithKline, laws that classify on this basis are entitled to heightened constitutional scrutiny. Opinion at 13-14. Armed with a determination that Idaho’s laws are subject to heightened scrutiny, the panel concluded that the state’s asserted interests in man-woman marriage were unsatisfactory. Opinion at 28 (“In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.”). Responding to the issuance of the mandate, Governor Otter has filed an emergency stay request with the Ninth Circuit. That motion remains pending. With only hours before the circuit court’s mandate becomes effective, this application followed.
JURISDICTION
Applicants seek a stay pending rehearing and certiorari of the Ninth Circuit’s decision, dated October 7, 2014, on federal claims that were properly preserved in the courts below. The final judgment of the Ninth Circuit on appeal is subject to review
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by this Court under 28 U.S.C. § 1254 (1), and this Court therefore has jurisdiction to entertain and grant a request for a stay pending appeal under 28 U.S.C. § 2101 (f). See, e.g., San Diegans for the Mt. Soledad Nat’l War Memorial v. Paulson, 548 U.S. 1301, 1302 (2006) (Kennedy, J., in chambers). In addition, this Court has authority to issue stays and injunctions in aid of its jurisdiction under 28 U.S.C. § 1651 (a).
REASONS FOR GRANTING THE EMERGENCY STAY
The standards for granting a stay pending review are “well settled.” Deauer v. United States, 483 U.S. 1301, 1302 (1987) (Rehnquist, C.J., in chambers). Preliminarily, this Court’s rules require a showing that “the relief is not available from any other court or judge,” Sup. Ct. R. 23.3—a conclusion established here by the fact that the Ninth Circuit issued its mandate immediately without even giving the State and its elected officials a single day to seek a stay before it went into effect. A stay is then appropriate if there is at least “(1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U.S. 183, 189 (2010) (per curiam). Moreover, “[i]n close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.” Id. (citing Lucas v. Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in chambers); Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers)); accord, e.g., Conkright v. Frommert,
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556 U.S. 1401, 1401 (2009) (Ginsburg, J., in chambers); Barnes v. E-Systems, Inc. Group Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1302, 1305 (1991) (Scalia, J., in chambers). In short, on an application for stay pending appeal, a Circuit Justice must “try to predict whether four Justices would vote to grant certiorari should the Court of Appeals affirm the District Court order without modification; try to predict whether the Court would then set the order aside; and balance the so-called ‘stay equities.”’ San Diegans, 548 U.S. at 1302 (granting stay pending appeal and quoting INS v. Legalization Assistance Project of Los Angeles County Fed’n of Labor, 510 U.S. 1301, 1304 (1993) (O’Connor, J., in chambers)). Each of these considerations points decisively toward issuing a stay, as does the fact that this Court has consistently issued stays as necessary to ensure that it has the final word in several other cases in which State marriage laws have been invalidated by lower courts.1
I. There is a strong likelihood that certiorari will be granted if the en banc Ninth Circuit does not overturn the panel’s decision. Multiple circumstances suggest a very strong likelihood that four Justices will
consider the issue presented here sufficiently meritorious to warrant this Court’s review.
First, the Court has already granted certiorari in another case that presented a similar but more general question—i.e., whether the States may maintain the traditional definition of marriage consistent with the Fourteenth Amendment. That case, of course, was Hollingsworth v. Perry, 133 S. Ct. at 2652, which presented that
1 See Herbert v. Kitchen, 13A687, 571 U.S. (Jan. 6, 2014); Herbert v. Evans, 14A65, 573 U.S. (July 18, 2014); McQuigg v. Bostic, 14A196, 573 U.S. (Aug. 20, 2014).
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general question in the context of California’s Proposition 8, which, like Idaho law, involved an effort by the people of California to preserve the traditional definition of marriage through a state constitutional amendment. Although the Court ultimately held that jurisdictional problems prevented resolution of the issue in that case, this case presents no such jurisdictional defect. Unlike the situation in Hollingsworth, where the Governor and Attorney General declined to defend Proposition 8, Idaho’s Governor is vigorously defending the State laws challenged here.
Second, the likelihood of review is further enhanced by the fact that the Ninth Circuit’s decision here deepens a 9-3 split among the circuits on the equal-protection standard for claims of sexual orientation discrimination. Central to its decision was the panel’s holding that Idaho’s marriage laws violate the Equal Protection Clause because those laws “do not satisfy the heightened scrutiny standard [the Ninth Circuit] adopted in SmithKline.” Latta v. Otter, No. 14-35420, slip op. at 6 (9th Cir. Oct. 6, 2014) (footnote omitted). SmithKline established that the peremptory challenge of a prospective juror because he was openly gay violated Batson v. Kentucky, 476 U.S. 79 (1986), but the panel here cited SmithKline for a broader principle: “‘Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.’” Slip op. at 14 (quoting SmithKline, 740 F.3d at 481). Such scrutiny, the panel explained, requires that “‘when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.’” Id. at 14 (quoting SmithKline, 740 F.3d at 483). Applying this standard as “the law
9

of our circuit regarding the applicable level of scrutiny,” the panel found that “Idaho and Nevada do discriminate on the basis of sexual orientation” and concluded that because Idaho “failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.” Id. at 15, 13, 33.
By nullifying Idaho’s marriage laws as unconstitutional sexual orientation discrimination, the Ninth Circuit panel decision stands in direct conflict with the judgments of nine other courts of appeals that apply rational basis review to such classifications.2 To be sure, the Second Circuit has held that claims of sexual orientation discrimination are entitled to heightened scrutiny, see Windsor v. United States, 699 F.3d 169, 180-85 (2d Cir. 2012),3 and the Seventh Circuit has suggested that sexual orientation might form the basis of a suspect class. See Baskin v. Bogan, __ F.3d __, 2014 WL 4359059 (7th Cir. Sept. 4, 2014). The panel decision thus puts the Ninth Circuit on the losing side of a 9-3 circuit split, a factor that warrants certiorari by itself.
Third, turning to the specific context of same-sex marriage, the panel decision here is utterly irreconcilable with Bruning, where the Eighth Circuit held that heightened scrutiny did not govern an equal protection challenge to Nebraska’s
2 Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 927-28 (4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989). 3 On review, however, this Court declined to address whether sexual orientation discrimination is subject to heightened scrutiny. See United States v. Windsor, 133 S. Ct. 2675 (2013).
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prohibition on same-sex marriage. See 455 F.3d at 866. Similarly, the panel decision contradicts Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), where the Minnesota Supreme Court detected “no irrational or invidious discrimination” in Minnesota’s laws reserving marriage for man-woman unions and this Court perceived no “substantial federal question.” See 409 U.S. 810 (1972).
These circumstances suggest a very strong likelihood that four Justices will consider the question presented sufficiently meritorious to justify this Court’s plenary review.
II. There is a strong likelihood that the district court’s decision will be overturned and the injunction held invalid. If the en banc Ninth Circuit does not overturn the panel decision and this Court
ultimately grants review, there is likewise a strong prospect that a majority will vote to reverse the panel decision—especially its holdings on sexual-orientation discrimination.
1. The various opinions in Windsor itself clearly indicate such a prospect. As previously noted, the majority’s decision to invalidate Section 3 of DOMA—which implemented a federal policy of refusing to recognize state laws defining marriage to include same-sex unions—was based in significant part on federalism concerns. For example, the majority emphasized that, “[b]y history and tradition the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” 133 S.Ct. at 2689-90. Citing this Court’s earlier statement in Williams v. North Carolina, 317 U.S. 287, 298 (1942), that “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons
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domiciled within its borders,” the Windsor majority noted that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’” 133 S. Ct. at 2691 (quoting Williams, 317 U.S. at 298) (alteration in original). The Windsor majority further observed that “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for ‘when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.’” Id. (quoting Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84 (1930)). And the majority concluded that DOMA’s refusal to respect the State’s authority to define marriage as it sees fit represented a significant—and in the majority’s view, unwarranted— “federal intrusion on state power.” Id. at 2692.
Here, the Ninth Circuit not only refused to accommodate Idaho’s definition for purposes of federal law, it altogether abrogated the decisions of the State and its citizens acting through every available democratic channel to define marriage in the traditional way. The Ninth Circuit’s decision is therefore a far greater “federal intrusion on state power” than the intrusion invalidated in Windsor.
Moreover, although none of the Justices in the Windsor majority expressly tipped their hands on the precise questions presented here, three of the dissenting Justices clearly indicated a belief that the States can constitutionally retain the traditional definition of marriage. See 133 S. Ct. at 2707-08 (Scalia, J., dissenting, joined in relevant part by Thomas, J.); id. at 2715-16 (Alito, J., joined in relevant part
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by Thomas, J.). And Chief Justice Roberts emphasized that “while ‘[t]he State’s power in defining the marital relation is of central relevance’ to the majority’s decision to strike down DOMA here, … that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.” Id. at 2697 (Roberts, C.J., dissenting) (quoting majority opinion). By themselves, the views expressed by these four Justices—without any contrary expression from the Court’s other Members—creates a strong prospect that, if the en banc Ninth Circuit does not do so, this Court will reverse the panel’s decision in this case.
2. If this Court ultimately grants review, there is likewise a strong prospect that a majority will vote to reverse the Ninth Circuit’s equal protection holdings. Contrary to the panel’s ruling, settled equal protection jurisprudence does not invite federal courts to evaluate a state’s marriage law by “‘examin[ing] its actual purposes and carefully consider[ing] the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or secondclass status.’” Id. at 14 (quoting SmithKline, 740 F.3d at 483). In establishing a framework that assigns “different levels of scrutiny to different types of classifications,” Clark v. Jeter, 486 U.S. 456, 461 (1988), the Court has approved three—and only three—levels of scrutiny for equal protection claims. The panel’s reliance on SmithKline for an indeterminate and virtually standardless form of “heightened” scrutiny thus departs from this Court’s precedents.
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SmithKline further erred by announcing the first new suspect class in 40 years without a whisper of guidance from this Court. See Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 756-57 (2011) (“[T]he last classification accorded heightened scrutiny by the Supreme Court was that based on nonmarital parentage in 1977 ….”). What’s more, SmithKline took this momentous step without applying the criteria the Court has identified for recognizing a class as suspect, such as political powerlessness and immutability. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441-42 (1985). And it did so in the face of this Court’s refusal to make sexual orientation a suspect class in Windsor—despite the urging of both the plaintiffs and the U.S. Government there.
Instead, the heightened scrutiny announced by SmithKline, and applied by the panel to Idaho’s marriage laws, rests on a misreading of Windsor. Although the SmithKline panel baldly asserted that it was “bound by controlling, higher authority” when it adopted “Windsor’s heightened scrutiny” or “Windsor scrutiny” for cases of sexual orientation discrimination, 740 F.3d at 483, Judge O’Scannlain was right that “nothing in Windsor compels the application of heightened scrutiny to this juror selection challenge.” Order, SmithKline Beecham Corp. v. Abbott Laboratories, No. 11-17357, at 8 (9th Cir. June 24, 2014) (O’Scannlain, J., dissenting from denial of rehearing en banc). Still less does Windsor require the application of a standardless version of heightened scrutiny to the grave task of determining whether Idaho’s timehonored definition of marriage satisfies the Fourteenth Amendment. Whatever else Windsor says, it does not hold that sexual orientation is a suspect class or that all classifications affecting it qualify for heightened scrutiny.
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Readily seeing the direction that SmithKline might head, unless corrected, Judge O’Scannlain foresaw that “the panel has produced an opinion with farreaching—and mischievous—consequences, for the same-sex marriage debate and for the many other laws that may give rise to distinctions based on sexual orientation, without waiting for appropriate guidance from the Supreme Court.” Id. at 3. Yesterday’s decision, which centrally relies on SmithKline to justify the application of heightened scrutiny to Idaho’s marriage laws, bears out Judge O’Scannlain’s prediction, and amply warrants this Court’s review.
3. Even if SmithKline had articulated a correct standard of heightened scrutiny, however, it should not apply to Idaho’s marriage laws because they do not facially discriminate based on sexual orientation. Article III, § 28 of the Idaho Constitution provides that “[a] marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” If as the panel said the presence of facial discrimination depends on “‘the explicit terms of the discrimination,’” slip op. at 13 (quoting Int’l Union, United Auto, Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991)), then Idaho law simply does not bear the marks of sexual orientation discrimination. It does not “classify” on the basis of sexual orientation. See, e.g., Parents Involved v. Seattle, 127 S.Ct. 2738, 2751 (2007) (a law “classifies” with respect to a particular characteristic only if it “distributes benefits or burdens” based directly on that characteristic). To the contrary, it classifies or distinguishes between male-female unions and all other pairings—not between heterosexual unions and other relationships. Indeed, Idaho law allows a gay man to marry a woman or a lesbian to
15

marry a man. What determines a person’s eligibility to marry someone of a given sex is not her sexual orientation, but her own sex.
It follows that plaintiffs’ claim of sexual orientation discrimination should have been dismissed, not relied upon as a basis—and here the only basis—for invalidating Idaho’s marriage law. There is thus a fair prospect that the Ninth Circuit’s ruling on this point will be reversed as well.
4. Another indication of a good prospect of reversal by this Court is that the Ninth Circuit’s decision conflicts with this Court’s decision in Baker v. Nelson, 409 U.S. 810 (1972). There, this Court unanimously dismissed, for want of a substantial federal question, an appeal from the Minnesota Supreme Court squarely presenting the question of whether a State’s refusal to recognize same-sex relationships as marriages violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment. Id.; see also Baker v. Nelson, No. 71-1027, Jurisdictional Statement at 3 (Oct. Term 1972); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). This Court’s dismissal of the appeal in Baker was a decision on the merits that constitutes “controlling precedent unless and until re-examined by this Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976) (emphasis added).
Yet the panel below refused to follow Baker, believing it had been substantially undercut by the majority in Windsor. See Opinion at 17. Putting aside the fact that Baker wasn’t even discussed by the Windsor majority, the Ninth Circuit’s analysis overlooks that the precise issue presented in Windsor—whether the federal government can refuse to recognize same-sex marriages performed in States where such marriages are lawful—was very different from the question presented in Baker,
16

i.e., whether a State may constitutionally refuse to authorize same-sex marriages under State law. Because the issues presented were different, this Court simply had no occasion to address whether Baker was controlling or even persuasive authority in Windsor; it obviously was not.
In this case, however, Baker will be highly relevant because it decided the very issue presented here. To be sure, a dismissal of the sort at issue in Baker “is not here ‘of the same precedential value as would be an opinion of this Court treating the question on the merits.’” Tully, 429 U.S. at 74 (quoting Edelman v. Jordan, 415 U.S. 651, 671 (1974)). But that implies, and practice confirms, that even in this Court such a dismissal remains of some “precedential value.” Accordingly, even if the logic of Windsor (or other decisions of this Court) suggested an opposite outcome—which it does not—there is at least a reasonable prospect that a majority of this Court will elect to follow Baker, because of its precedential value if nothing else. And that outcome is even more likely given (a) the Windsor majority’s emphasis on respect for State authority over marriage, and (b) the district court’s pointed (and correct) refusal to find that Idaho’s marriage laws (in contrast with DOMA) are rooted in animus toward gays and lesbians.
5. A final reason to believe there is a strong likelihood this Court will ultimately invalidate the district court’s injunction is the large and growing body of social science research contradicting the central premise of the panel’s equal protection holdings.4 That research—some of it cited in Justice Alito’s Windsor
4 In citing this research we do not mean to suggest that Idaho bears the burden of proving that its views on marriage are correct or sound. To the contrary, a government has no duty to produce evidence
17

opinion, 133 S. Ct. at 2715 & n.6 (Alito, J., dissenting)—confirms what the State, its citizens, and indeed virtually all of society have until recently believed about the importance of providing unique encouragement and protection for man-woman unions: (a) that children do best across a range of outcomes when they are raised by their father and mother (biological or adoptive), living together in a committed relationship, and (b) that limiting the definition of marriage to man-woman unions, though it cannot guarantee that outcome, substantially increases the likelihood that children will be raised in such an arrangement. Indeed, these are the core “legislative facts” on which legislatures and voters throughout the Nation have relied in repeatedly limiting marriage to man-woman unions. And even when contravened by other evidence, they are not subject to second-guessing by the judiciary without a showing that no rational person could believe them. See, e.g., Vance v. Bradley, 440 U.S. 93, 112 (1979) (“It makes no difference that the [legislative] facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety.”) (internal quotation marks omitted)).
Accordingly, there is a good probability that this Court will avoid that result and, in so doing, reject the panel’s analysis and reverse its judgment.
to sustain the rationality of a statutory classification. Heller v. Doe, 509 U.S. 312, 320-21 (1993). And indeed “a legislative choice … may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Commc’ns, 508 U.S. 307, 315 (1993). The research discussed here briefly sketches what Idaho and its citizens could rationally believe about the benefits of limiting marriage to man-woman unions.
18

III. Without a stay, Idaho and its elected officials will suffer irreparable harm. The Ninth Circuit’s mandate will also impose irreparable harm on Idaho, its
elected officials and its citizens. Members of this Court, acting as Circuit Justices, repeatedly have acknowledged that “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); accord Maryland v. King, 567 U.S. ___, 133 S.Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (granting a stay); Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 571 U.S. ___, 134 S.Ct. 506, 506 (2013) (Scalia, J., concurring in denial of application to vacate stay). That same principle supports a finding of irreparable injury in this case. For the district court’s order—now affirmed by the Ninth Circuit—enjoins the State from enforcing not only an ordinary statute, but a constitutional provision approved by the people of Idaho in the core exercise of their sovereignty.
1. That States have a powerful interest in controlling the definition of marriage within their borders is indisputable. Indeed, the Windsor majority acknowledged that “‘[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders,’” Windsor, 133 S.Ct. at 2691 (quoting Williams, 317 U.S. at 298), and emphasized that “[t]he recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.” Id. (emphasis added). Every single marriage performed between persons of the same sex as a result of the district court’s injunction—and in defiance of Idaho law—is thus an affront to the sovereignty of the State and its people. Each
19

such marriage flouts the State’s sovereign interest in controlling “the marital status of persons domiciled within its borders.” Id.
Idaho’s sovereign interest in determining who is eligible for a marriage license is bolstered by the principle of federalism, which affirms the State’s constitutional authority over the entire field of family relations. As the Windsor majority explained, “‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’” 133 S. Ct. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)) (emphasis added). The panels’ decision breaches the principle of federalism by exerting federal control over the definition of marriage—a matter within Idaho’s “virtually exclusive province.” Id.
A federal intrusion of this magnitude not only contravenes the State’s sovereignty; it also infringes the right of Idahoans to government by consent within our federal system. Constitutional first principles dictate as much:
The Constitution is based on a theory of original, and continuing, consent of the governed. Their consent depends on the understanding that the Constitution has established the federal structure, which grants the citizen the protection of two governments, the Nation and the State. Each sovereign must respect the proper sphere of the other, for the citizen has rights and duties as to both. United States v. Lara, 541 U.S. 193, 212 (2004) (Kennedy, J., concurring in the judgment); see also Bond, 131 S. Ct. at 2364 (“When government acts in excess of its lawful powers” under our system of federalism, the “liberty [of the individual] is at stake.”). Here, the panel’s extraordinary decision to overturn Idaho’s marriage laws—and its refusal thus far even to stay its order pending further review—places
20

in jeopardy the democratic right of millions of Idahoans to choose for themselves what marriage will mean in their community.
2. Overturning Idaho’s marriage laws also has grave practical consequences. Unless a stay is granted immediately, many marriage licenses will be issued to same-sex couples and the State would then confront the thorny problem of whether and how to unwind the marital status of same-sex unions if (as the Governor strongly contends) the panel decision is ultimately reversed. Considerable administrative and financial costs will be incurred to resolve that problem, and the State’s burden will only increase as the number of marriage licenses issued to samesex couples continues to grow. See Legalization Assistance Project, 510 U.S. at 130506 O’Connor, J., in chambers) (citing the “considerable administrative burden” on the government as a reason to grant the requested stay). Only a stay can prevent that indefensible result.
The State’s responsibility for the welfare of all its citizens makes it relevant, as well, that Respondents and any other same-sex couples who choose to marry before this Court resolves this dispute on the merits will likely be irreparably harmed without a stay. They and their children will likely suffer dignitary and financial losses from the invalidation of their marriages if appellate review affirms the validity of Idaho’s marriage laws. The State thus seeks a stay, in part, to avoid needless injuries to same-sex couples and their families that would follow if the marriage licenses that they obtain as a result of the panel’s decision are ultimately found invalid—simply because the Ninth Circuit’s mandate was not stayed pending final resolution of the central legal issues in this case.
21

In short, it cannot be seriously contested that the State will suffer irreparable harm from the district court’s nullification of Idaho’s constitutional definition of marriage absent a stay, given that such harm repeatedly has been found when a federal court enjoins the enforcement of ordinary statutes. See New Motor Vehicle Bd., 434 U.S. at 1345 (relocation of auto dealerships); Maryland, 133 S.Ct. at 5 (collection of DNA samples from arrestees); Planned Parenthood, 134 S. Ct. at 507 (Breyer, J., dissenting from denial of application to vacate the stay) (restrictions on physicians’ eligibility to perform abortions).
IV. The balance of equities favors a stay. Although the case for a stay is not “close,” here too, “the relative harms to the
applicant and to the respondent” strongly tilt the balance of equities in favor of a stay. Hollingsworth, 558 U.S. at 190.
As previously explained, the State and its citizens will suffer irreparable injury from halting the enforcement of Idaho’s definition of marriage. Every marriage performed uniting persons of the same sex is an affront to the sovereignty of the State and to the democratically expressed will of the people of Idaho; the State may incur ever-increasing administrative and financial costs to deal with the marital status of same-sex unions performed before this case is finally resolved; and same-sex couples may be irreparably harmed in their dignitary and financial interests if their marital status is retroactively voided. Any one of these injuries qualifies as irreparable. Together they establish exceptional harm.
22

Against all this, Respondents can be expected to recite the rule that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). That rule is inapposite here. While violation of an established constitutional right certainly inflicts irreparable harm, that doctrine does not apply where, as here, Respondents seek to establish a novel constitutional right through litigation. Because neither constitutional text nor any decision by a court of last resort yet establishes their sought-after federal right to same-sex marriage, Respondents suffer no constitutional injury from awaiting a final judicial determination of their claims before receiving the marriage licenses they seek. See Rostker, 448 U.S. at 1310 (reasoning that the “inconvenience” of compelling Respondents to register for the draft while their constitutional challenge is finally determined does not “outweigh[ ] the gravity of the harm” to the government “should the stay requested be refused”).
Nor, moreover, can Respondents change the state of the law by obtaining marriage licenses on the yet-untested authority of the panel’s decision. Our constitutional tradition relies on the certainty and regularity of formal constitutional amendment, or judicial decision-making by appellate courts, which would be subverted by deriving a novel constitutional right to same-sex marriage from the number of people who assert it or the number of days its exercise goes unchecked. See George Washington, Farewell Address (Sept. 19, 1796), reprinted in GEORGE WASHINGTON: A COLLECTION 518 (W.B. Allen ed., 1988) (“The basis of our political systems is the right of the people to make and to alter their Constitutions of
23

Government. But the Constitution which at any time exists, ‘till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all.’”).
Strongly tipping the balance in favor of a stay is the public’s overwhelming interest in maintaining the status quo pending a regular and orderly review of Respondents’ claims by the en banc Court of Appeals and this Court. See Hollingsworth, 558 U.S. at 197 (granting a stay, in part, because its absence “could compromise the orderly, decorous, rational traditions that courts rely upon to ensure the integrity of their own judgments”). A stay will serve the public interest by preserving this Court’s ability to address matters of vital national importance before irreparable injury is inflicted on the State of Idaho and its citizens.
For all these reasons, the balance of equities favors a stay.
CONCLUSION The Applicants respectfully request that the Circuit Justice issue a temporary stay of the Ninth Circuit’s mandate pending that Court’s resolution of the stay application now pending before it and, if necessary, an application for a full stay pending certiorari addressed to this Court. If the Circuit Justice is either disinclined to grant the requested relief or simply wishes to have the input of the full Court on this application, Applicants respectfully request that it be referred to the full Court.
Respectfully submitted,

Thomas C. Perry Counsel to the Governor

________________________________
Gene C. Schaerr LAW OFFICES OF GENE SCHAERR
24

OFFICE OF THE GOVERNOR P.O. Box 83720 Boise, Idaho 83720-0034

332 Constitution Ave., NE Washington, D.C. 20002 Telephone: (202) 361-1061 gschaerr@gmail.com

Monte Neil Stewart STEWART TAYLOR & MORRIS PLLC 12550 W. Explorer Drive, Suite 100 Boise, Idaho 83720

Counsel for Applicants

October 8, 2014

25

 
 Latta v. Otter, 779 F.3d 902 (2015)

779 F.3d 902 United States Court of Appeals,
Ninth Circuit.
Susan LATTA; Traci Ehlers; Lori Watsen; Sharene Watsen; Shelia Robertson; Andrea Altmayer; Amber Beierle; Rachael Robertson, Plaintiffs– Appellees, v. C.L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity, Defendant– Appellant, and
Christopher Rich, Recorder of Ada County, Idaho, in his official capacity, Defendant,
State of Idaho, Intervenor–Defendant. Susan Latta; Traci Ehlers; Lori Watsen; Sharene
Watsen; Shelia Robertson; Andrea Altmayer; Amber Beierle; Rachael Robertson, Plaintiffs–
Appellees, v.
C.L. Otter, “Butch”; Governor of the State of Idaho, in his official capacity, Defendant, and
Christopher Rich, Recorder of Ada County, Idaho, in his official capacity, Defendant–Appellant,
State of Idaho, Intervenor–Defendant–Appellant. Beverly Sevcik; Mary Baranovich; Antioco
Carrillo; Theodore Small; Karen Goody; Karen Vibe; Fletcher Whitwell; Greg Flamer; Mikyla Miller; Katrina Miller; Adele Terranova; Tara Newberry; Caren Cafferata–Jenkins; Farrell Cafferra–Jenkins; Megan Lanz; Sara Geiger,
Plaintiffs–Appellants, v.
Brian Sandoval, in his official capacity as Governor of the State of Nevada; Diana Alba, in
her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County,
Nevada; Amy Harvey, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada; Alan Glover, in his official capacity as the Clerk
Recorder for Carson City, Nevada, Defendants– Appellees, and
Coalition for the Protection of Marriage, Intervenor–Defendant–Appellee.
Nos. 14–35420, 14–35421, 12–17668. | Jan. 9, 2015.

Attorneys and Law Firms
Craig H. Durham, Durham Law Office, PLLC, Boise, ID, Shannon Price Minter, Esquire, Legal Director, Christopher Stoll, San Francisco, CA, for Plaintiffs– Appellees.
Daniel W. Bower, Stewart Taylor & Morris, PLLC, Cally Younger, Idaho Governor’s Office of Species Conservation, Thomas C. Perry, General Counsel, Counsel to the Governor State Capital, Boise, ID, Gene C. Schaerr, Winston & Strawn LLP, Washington, DC, for Defendant–Appellant.
Clay R. Smith, Assistant Attorney General, W. Scott Zanzig, Boise, ID, for Defendant/Intervenor–Defendant.
Tara L. Borelli, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, Marek P. Bute, Esquire, Kelly Harrison Dove, Esquire, Snell & Wilmer LLP, Las Vegas, NV, Carla Christofferson, Melanie Cristol, Dawn Sestito, Dimitri Portnoi, O’Melveny & Myers LLP, Jon Davidson, Peter C. Renn, Lambda Legal Defense and Education Fund, Los Angeles, CA, for Plaintiffs–Appellants.
Charles Wayne Howle, Esquire, Solicitor General, Nevada Office of the Attorney General, Randal Richard Munn, Joseph Leo Ward, Jr., Esquire, Senior Deputy District, Carson City District Attorney’s Office, Carson City, NV, Matthew Joseph Christian, Esquire, Kolesar & Leatham, Las Vegas, NV, Herbert Kaplan, Deputy District, Reno, NV, for Defendants–Appellees.
David Chris Albright, Esquire, Albright, Stoddard, Warnick & Albright, Las Vegas, NV, Daniel W. Bower, Monte N. Stewart, Craig G. Taylor, Stewart Taylor & Morris, PLLC, Boise, ID, for Intervenor–Defendant– Appellee.
D.C. No. 1:13–cv–00482–CWD, District of Idaho, Boise. D.C. No. 2:12–cv–00578–RCJ–PAL, District of Nevada, Las Vegas.
Before: REINHARDT, GOULD, and BERZON, Circuit Judges.
Order; Dissent by Judge O’Scannlain.
1

Latta v. Otter, 779 F.3d 902 (2015)

ORDER
The panel has voted to deny the petitions for rehearing en banc.
The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R.App. P. 35.
The petitions for rehearing en banc are DENIED.

O’SCANNLAIN, Circuit Judge, joined by RAWLINSON and BEA, Circuit Judges, dissenting from the denial of rehearing en banc:

One month after the panel in these cases struck down the traditional marriage laws of Idaho and Nevada, the Sixth Circuit upheld the essentially identical laws of Michigan, Ohio, Tennessee, and Kentucky. See DeBoer v. Snyder, 772 F.3d 388 (6th Cir.2014). Clearly the same-sex marriage debate is not over. Indeed, not only does the debate now divide the federal circuit courts and state legislatures, but it continues to divide the American public.1 And, *904 of course, the Supreme Court has not yet decided the issue, notwithstanding innuendo in the panel’s opinion.2

1

See,

e.g.,

http://www.nbcnews.

com/politics/elections/2014/US/house/exitpoll

(showing that in exit polling at the November 2014

election, respondents were equally divided, 48%–48%,

on the question of whether same-sex marriage should

be legally recognized in their state).

The debate even divides the globe—and the DeBoer

majority is in agreement with one of the world’s

most prominent human rights’ tribunals. Only a few

months ago, the European Court of Human Rights,

hardly a hotbed of hardline conservatism, made clear

that the European Convention for the Protection of

Human Rights and Fundamental Freedom “enshrines

the traditional concept of marriage as being between

a man and a woman,” and “cannot be interpreted as

imposing an obligation on Contracting States to grant

same-sex couples access to marriage.” Hämäläinen

v. Finland, No. 37359/09, HUDOC, at *18, *24

(Eur.Ct.H.R. July 16, 2014), available at

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?

i=001–145768 # 1 [“itemid”:1“001–145768”]I; see

also id. at *19 (recognizing that “it cannot be said

that there exists any European consensus on allowing same-sex marriages”). Notably, even the dissenters on the particular issue before the court—recognition of a married person’s change in gender identity—agreed that “States have a legitimate interest in protecting marriage in the traditional sense by legally reserving marriage to heterosexual partners.” Id. at *34 (Joint Dissenting Opinion of Judges Sajo, Keller, and Lemmens).

2

What the Supreme Court has decided is that the federal

courts should not intrude, as the panel does here, on the

choices of state electorates regarding whether to define

marriage as a male-female union. Baker v. Nelson, 409

U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972); see Part I,

infra.

Thoughtful, dedicated jurists who strive to reach the correct outcome—including my colleagues on the panel here—have considered this issue and arrived at contrary results. This makes clear that—regardless of one’s opinion on the merits of the politically charged and controversial issues raised by these cases—we are presented with a “question of exceptional importance” that should have been reviewed by an en banc panel. See F.R.A.P. 35(a). Indeed, if for no other reason, we should have reheard these cases in order to consider the arguments of our colleagues on the Sixth Circuit, who, reviewing the same question raised here, arrived at the opposite result. See DeBoer, 772 F.3d 388. Whether my colleagues agree or disagree with the DeBoer majority, at the very least, the panel should have granted rehearing to address the points raised in that opinion. Instead, we have utterly ignored another circuit’s reasoned contribution to the debate. Such a clear circuit split on such an exceptionally important issue demands en banc review.3

3

See F.R.A.P. 35(b)(1)(B) (explaining that “a petition

may assert that a proceeding presents a question of

exceptional importance if it involves an issue on which

the panel decision conflicts with the authoritative

decisions of other United States Courts of Appeals”);

see also Groves v. Ring Screw Works, 498 U.S. 168,

172 n. 8, 111 S.Ct. 498, 112 L.Ed.2d 508 (1990) (citing

“a square conflict in the Circuits,” as grounds for

making rehearing en banc “appropriate”); Ninth Circuit

Rule 35–1 (explaining that a direct conflict with

another court of appeals “is an appropriate ground for

petitioning for rehearing en banc”).

2

Latta v. Otter, 779 F.3d 902 (2015)

Because the panel opinion neglects to address the issues raised in the conflicting Sixth Circuit opinion, and 1) overlooks binding Supreme Court precedent, 2) fails to respect bedrock principles of democratic self-governance, and 3) ignores the adverse implications of its opinion on our federal structure, I must respectfully dissent from our decision not to rehear these cases en banc.

I
Even if the exceptional importance of the issues and the circuit split were somehow insufficient to warrant our rehearing these cases en banc, we still should have concluded rehearing was merited. The *905 panel fails to follow the Supreme Court’s precedential command that federal courts must avoid substituting their own definition of marriage for that adopted by the states’ citizenry. By refusing to rectify this error, we let stand an impermissible judicial intrusion into a debate reserved to the states’ political processes.

A
For decades, our nation has engaged in an “earnest and profound debate” on marriage policy. See Washington v. Glucksberg, 521 U.S. 702, 735, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (praising the American public’s ongoing conversation on the “morality, legality, and practicality of physician-assisted suicide” and ultimately declining to interfere); see also Hollingsworth v. Perry, – –– U.S. ––––, 133 S.Ct. 2652, 2659, 186 L.Ed.2d 768 (2013) (“The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry.”). State by state, citizens have considered the issue of same-sex marriage and, through legislation, popular referendum, or constitutional amendment, voiced their views on this question of immense public importance.4

4

To date, thirteen states and the District of Columbia

have extended the traditional definition of marriage to

include same-sex couples by statute or ballot initiative.

See infra footnote 9. Many other states, including Idaho

and Nevada, have used their democratic processes to

retain the traditional definition of marriage.

Until quite recently, the judiciary has allowed this earnest democratic debate to continue unobstructed. Forty-two years ago, the Supreme Court dismissed an appeal from a Minnesota Supreme Court decision, Baker v. Nelson, which held that “[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” 291 Minn. 310, 191 N.W.2d 185, 187 (1971) (emphasis added). Dismissing the plaintiffs’ appeal “for want of a substantial federal question,” 409 U.S. at 810, 93 S.Ct. 37 (emphasis added), the Baker Court confirmed that the Constitution commits questions of marriage policy to the citizens of each state, and that absent exceptional circumstances, federal courts should resist the temptation to interfere with a state marriage regulation.
This is not to say that a state’s “powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.” Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). There are clearly exceptional circumstances in which judicial interference is needed—no more so than when a husband and wife face criminal sanctions merely for marrying when they happen to be of different races. See id.
But while “invidious racial discriminations” warranted judicial action in Loving v. Virginia, no such discrimination is implicated here.5 Indeed, to argue that Loving controls here requires asserting that the Supreme Court forgot about Loving only five years later when it decided Baker. If the panel had any lingering doubts as to whether judicial interference is appropriate, Baker makes clear that it is not.

5

Indeed the panel majority—though not Judge Reinhardt

see Latta v. Otter, 771 F.3d 456, 464 (9th Cir.2014)

(Reinhardt, J., concurring)—does not rest its decision

on Loving.

B
Loving holds that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause” and that the
3

Latta v. Otter, 779 F.3d 902 (2015)
“Fourteenth Amendment requires that the freedom of choice to marry not be restricted *906 by invidious racial discriminations.” Loving, 388 U.S. at 12, 87 S.Ct. 1817. Thus, Loving stands as a clear prohibition on racial discrimination in laws defining and regulating marriage, but it simply does not follow that Loving also somehow prevents the states from defining marriage as a union of a man and a woman.
Indeed state laws that define marriage as a union of a man and a woman bear little resemblance to the Virginia statute that criminalized Mildred and Richard Loving’s marriage merely because Mildred was black and Richard was white. Id. at 11, 87 S.Ct. 1817. Virginia recognized that Mildred and Richard had married in the District of Columbia, but “to maintain White Supremacy,” id., the state legislature chose to punish them for having the courage to do so.
Chief Justice Warren recognized that such punishment contravened the constitutional command that “the freedom of choice to marry not be restricted by invidious racial discriminations.” Id. at 12, 87 S.Ct. 1817. But it is difficult to draw from this holding the conclusion that Loving is “directly on point,” Latta, 771 F.3d at 478 (Reinhardt, J., concurring), as to whether marriage may be defined as an opposite-sex relationship.
Of course, states are not compelled to define marriage as such an opposite—sex union—simply look to the many states that, since Loving, have defined it by statute or popular vote to extend to gay and lesbian couples.6 But states are also not compelled by the federal Constitution to define marriage differently than the “generally accepted” opposite-sex relationship Mildred and Richard sought to enter in Loving. See Loving, 388 U.S. at 11, 87 S.Ct. 1817; cf. Bishop v. Smith, 760 F.3d 1070, 1108–09 (10th Cir.2014) (Holmes, J., concurring) (explaining that Oklahoma’s codification of marriage as an opposite-sex relationship “cannot sensibly be depicted as ‘unusual’ where the State was simply exercising its age-old police power to define marriage in the way that it, along with every other State, always had” and noting that Oklahoma’s law “formalized a definition that every State had employed for almost all of American history, and it did so in a province the states had always dominated”); Hdmdldinen, No. 37359/09, HUDOC, at *19, *24 (explaining that the European Convention does not impose an obligation to recognize same sex marriage, and that only ten of the 47 member states of the Council of Europe recognize such marriages).7 Loving states that

“[u]nder our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State,” but it says nothing about the states’ power to define marriage, as every state has done for almost all of American history, as a malefemale relationship. Loving, 388 U.S. at 12, 87 S.Ct. 1817.

6

See infra note 9.

7

Notwithstanding my views on the applicability of

foreign law in the analysis of constitutional terms, see

Diarmuid F. O’Scannlain, What Role Should Foreign

Practice and Precedent Play in the Interpretation of

Domestic Law?, 80 NOTRE DAME L.REV. 1893

(2005), marriage is not defined in the U.S. Constitution,

and it is telling that the ECHR has left such a

fundamental issue to be resolved by member-states

rather than via judicial fiat.

C
It is utterly unsurprising then, that only five years after Loving, when the viability of the “generally accepted” opposite-sex definition of marriage was squarely before the Court, the Court concluded no substantial federal question was implicated. Baker, 409 U.S. 810, 93 S.Ct. 37. Such a conclusion was completely consistent with Loving: there simply is no conflict in holding *907 both that the Constitution prohibits racial restrictions on the right to enter marriage, and that the Constitution is not offended by a state’s choice to define marriage as an opposite-sex relationship.
Of course we cannot ignore Chief Justice Marshall’s observation, as true as ever, that if “the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).
We must ask, then: Is leaving the political process intact here not an impermissible abdication of our “authority, and indeed [ ] responsibility, to right fundamental wrongs left excused by a majority of the electorate?” DeBoer, 772
4

Latta v. Otter, 779 F.3d 902 (2015)

F.3d at 436–37 (Daughtrey, J., dissenting). Is this situation not analogous to those, where, even while recognizing “that certain matters requiring political judgments are best left to the political branches,” we must ensure that courts and not the political branches, “say what the law is?” Boumediene v. Bush, 553 U.S. 723, 765, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (citing Marbury, 5 U.S. (1 Cranch) at 177).
Simply put, no. We are a Court of Appeals, not the Supreme Court, and our obligation is to

adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.... [T]he lower courts are bound by summary decisions by th[e Supreme] Court until such time as the Court informs [them] that [they] are not.

Hicks v. Miranda, 422 U.S. 332, 344–45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (citations omitted).
Far from avoiding our responsibilities, following Baker here constitutes the only permissible exercise of our limited authority—the eagerness of the panel members to pronounce their views on the merits of same-sex marriage notwithstanding.8 When the Supreme Court “concludes [an] appeal should be dismissed because the constitutional challenge” presented “was not a substantial one,” it makes a precedential decision on the merits. Hicks, 422 U.S. at 344, 95 S.Ct. 2281 (citing Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 79 S.Ct. 978, 3 L.Ed.2d 1200 (1959); R. Stern & E. Gressman, Supreme Court Practice 197 (4th ed.1969); C. Wright, Law of Federal Courts 495 (2d ed.1970)).

8

It is questionable whether judicial intrusion on the

peoples’ political choices is truly an effective means of

advancing the same-sex marriage cause. As one legal

academic and same-sex marriage supporter explains:

Court victories are hollow victories for the LGBT

community, failing to deliver the societal respect

they seek, and in fact removing the opportunity for

collective expression of such respect through

voluntary legislative reform or popular

referendum.

James G. Dwyer, Same–Sex Cynicism and the Self–

Defeating Pursuit of Social Acceptance Through

Litigation, 68 S.M.U. L.REV. –––– (forthcoming

2015). Courts “cannot deliver the type of dignity that comprises social respect”—in fact “a judicial victory obviates legislative change, and therefore collective or majoritarian expression of respect.” Id.
Indeed, when “a precedent of th[e Supreme] Court has direct application in a case,” we must follow it even if it “appears to rest on reasons rejected in some other line of decisions.” Rodriguez de Qui¶ as v. Shearson/AMEX, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). “[T]he Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Id. Baker is a precedential disposition on the merits which Hicks and Rodriguez de Quijas *908 make clear we are not at liberty to disregard.
The panel ignores Rodriguez de Quijas and attempts to turn the command of Hicks on its head. Rather than heeding the clear statement that “the lower courts are bound by summary decisions by th[e Supreme] Court until such time as the Court informs [them] that [they] are not,” the panel searches for “doctrinal developments” that, when interpreted just so, imply that Baker is no longer good law. Apparently the panel believes the Supreme Court, rather than speaking clearly when it overrules dispositions on the merits, “informs” the lower courts of an overruling with so many winks and nods.
Unfortunately, the panel is not without company in its approach. See, e.g., Baskin v. Bogan, 766 F.3d 648, 659– 60 (7th Cir.2014) (doctrinal developments preclude application of Baker ); Bostic v. Schaefer, 760 F.3d 352, 373–75 (4th Cir.2014) (same); Bishop, 760 F.3d at 1079– 81 (same); Kitchen v. Herbert, 755 F.3d 1193, 1204–08 (10th Cir.2014) (same).
Yet neither am I. See, e.g., DeBoer, 772 F.3d at 399–402 (Baker is still binding precedent); Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir.2012) (same), cited in U.S. v. Windsor, –––U.S. ––––, 133 S.Ct. 2675, 2688, 2693, 186 L.Ed.2d 808 (2013); Conde–Vidal v. Garcia–Padilla, No. 14–1253 PG, ––– F.Supp.3d ––––, ––––, 2014 WL 5361987, at *6 (D.P.R. Oct. 21, 2014) (same); cf., Hdmdldinen, No. 37359/09, HUDOC, at *24 (holding, like Baker, that same-sex marriage is an issue reserved to the democratic process).
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Latta v. Otter, 779 F.3d 902 (2015)
D
Wishing that Baker has been overruled, however, does not make it so. Indeed, even if the panel’s tea-leaf-reading approach to finding implicit overruling were viable, it still could not plausibly argue that Baker has been abrogated. In making the determination that “doctrinal developments” indicate that the Court no longer views Baker as good law, the panel relies on United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808, Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). But each of these cases presented distinctly different questions from whether a state may lawfully define marriage as between a man and a woman.
1
In Windsor, the Court struck down a federal law that intruded on a state’s prerogative to define marriage, what the Court characterized as “ ‘virtually [an] exclusive province of the States.’ ” Windsor, 133 S.Ct. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). If anything, Windsor’s emphasis on the unprecedented federal intrusion into the states’ authority over domestic relations reaffirms Baker’s conclusion that a state’s definition of marriage presents no “substantial federal question.” Baker, 409 U.S. at 810, 93 S.Ct. 37. The Windsor opinion expressly “confined [itself] to ... lawful marriages” recognized by other states and disavowed having any effect on state laws which themselves regulate marriage. Windsor, 133 S.Ct. at 2696.
2
Likewise, in Lawrence, the Court did not implicate Baker when it struck down Texas’s criminal anti-sodomy law on the ground that it interfered with personal autonomy. Like in Windsor, the Lawrence Court expressly stated that it was not deciding whether a state must recognize same-sex marriages. See *909 Lawrence, 539 U.S. at 578, 123 S.Ct. 2472 (“The present case does not involve ... whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”).

3
Similarly, Romer did not involve the definition of marriage, but rather a Colorado constitutional amendment that “nullifie[d] specific legal protections for [homosexuals] in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment” as well as laws providing protection “from discrimination by every level of Colorado government.” Romer, 517 U.S. at 629, 116 S.Ct. 1620. Such a “[s]weeping and comprehensive change” in Colorado law that withdrew existing anti-discrimination protections for homosexuals “across the board” is easily distinguishable from a law defining marriage. Id. at 627, 633, 116 S.Ct. 1620; see also Kenji Yoshino, The New Equal Protection, 124 HARV. L.REV.. 747, 777–78 (2011) (noting that “the Court emphasized that Romer might be a ticket good only for one day” as the amendment at issue effectuated an “unprecedented” harm).
4
Windsor, Lawrence, and Romer simply do not limit the states’ authority to define marriage and certainly do not contradict Baker’s conclusion that the Constitution does not require states to recognize same-sex marriage. See Bishop, 760 F.3d at 1104 (Holmes, J., concurring) (explaining that state laws defining marriage as between an opposite-sex couple are clearly distinguishable from those at issue in Romer and Windsor as they neither “target[ ] the rights of a minority in a dangerously expansive and novel fashion” as in Romer, nor do they “stray[ ] from the historical territory of the lawmaking sovereign just to eliminate privileges that a group would otherwise receive,” as the federal law did in Windsor).
Our place in the federal judicial hierarchy carries with it restrictions that, inconvenient as they may be to implementing our policy choices, restrain and guide our discretion. We cannot ignore our obligation to follow Baker’s precedent.
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Latta v. Otter, 779 F.3d 902 (2015)

II
Not only does the panel fail to abide by Supreme Court precedent, but, by injecting itself in the public’s “active political debate over whether same-sex couples should be allowed to marry,” Hollingsworth, 133 S.Ct. at 2659, it acts in a way Justice Kennedy has deemed “inconsistent with the underlying premises of a responsible, functioning democracy.” Schuette v. Coalition to Defend Affirmative Action, ––– U.S. ––––, 134 S.Ct. 1623, 1637, 188 L.Ed.2d 613 (2014) (plurality opinion). Rather than allow further change “primarily [to] be made by legislative revision and judicial interpretation of the existing system,” the panel chooses to “leap ahead—revising (or even discarding) the system by creating a new constitutional right and taking over responsibility for refining it.” Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 74, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). Such a leap should never be made lightly, yet here the panel takes it without regard to the fact that our country’s citizens have shown themselves quite capable of “engag[ing] in serious, thoughtful examinations” of the issue of same-sex marriage. Glucksberg, 521 U.S. at 719, 117 S.Ct. 2258.
In some states, democratic majorities have enacted laws that expand the traditional definition of marriage to include same-sex relationships. See Windsor, 133 S.Ct. at 2710–11 (noting, for example, that in Maryland, voters approved a measure, by a vote of 52% to 48%, establishing that *910 “Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license”).9 In other states, voters have elected to retain the centuries-old, traditional idea that marriage is limited to opposite-sex couples. Id. (noting a North Carolina constitutional amendment providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”). Indeed, in Maine, citizens voted to reject samesex marriage in 2009 (by a vote of 53% to 47%) only to change course in 2012, voting to permit same-sex marriages by that same margin. Id. It seems marriagedefining is a state-law issue that the states are quite capably handling through deliberation in their own state lawmaking processes.10

9

See also Cal. Fam.Code § 300 (permitting same-sex

marriage); Conn. Gen.Stat. Ann. § 46b–20a (same);

Del.Code Ann. tit. 13, § 129 (same); Haw.Rev.Stat. §

572–1 (same); 750 Ill. Comp. Stat. Ann. 5/212 (same);

Md.Code Ann., Fam. Law § 2–201 (same); Minn.Stat.

Ann. § 517.01 (same); N.H.Rev.Stat. Ann. § 5–C:42

(same); N.Y. Dom. Rel. Law § 10 (same); R.I. Gen. Laws Ann. § 15–1–1 (same); V.T. Stat. Ann. tit. 15, § 8 (same); Wash. Rev.Code Ann. § 26.04.010 (same). If marriage is to be extended to same-sex couples, our democratic institutions provide the proper means to effect such an extension.

10

State-by-state variances in marriage law, of course, are

not limited to same-sex marriage. For instance, states

have different age requirements. Compare Idaho Code

Ann. § 32–202 (individuals must be 18 to marry

without parental consent), with Miss.Code. Ann. § 93–

1–5 (individuals must be 21). States also differ in their

consanguinity requirements. Compare Idaho Code Ann.

§ 32–206 (prohibiting marriages between first cousins),

with Cal. Fam.Code § 2200 (permitting such

marriages). Other differences include whether states

recognize or prohibit common law marriages. Compare

Idaho Code Ann. § 32–201 (prohibiting common law

marriages), with Mont.Code Ann. § 40–1–403

(permitting such marriages). Query if the panel’s

holding nullifies such prohibitions as well.

The panel’s opinion cuts short these “earnest and profound debate[s],” silencing the voices of millions of engaged and politically active citizens. Glucksberg, 521 U.S. at 735, 117 S.Ct. 2258. By doing so, the panel suggests that citizens of Nevada and Idaho, indeed of the nation, are not capable of having this conversation, or of reaching the “correct” conclusion. But such a view eschews the very foundational premises of democratic self-governance. As Justice Kennedy wrote in Schuette, “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.... Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.” Schuette, 134 S.Ct. at 1637.

A
Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy. On the contrary, the Court’s decision in Windsor recognizes the importance to democratic self-government of letting the People debate marriage policy. The Windsor
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Latta v. Otter, 779 F.3d 902 (2015)

Court reminded us that “[t]he dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.” Windsor, 133 S.Ct. at 2692.
Despite such express instruction from the High Court, the panel assumes it is its right, indeed its duty to reach the conclusion that it does. But recent developments suggest otherwise. As the Sixth Circuit’s DeBoer decision reminds us, it is *911 “[b]etter in this instance ... to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.” DeBoer, 772 F.3d at 421; see also Garcia–Padilla, No. 14–1253 PG, ––– F.Supp.3d at ––––, 2014 WL 5361987, at *11 (“[O]ne basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law.”); Robicheaux v. Caldwell, 2 F.Supp.3d 910, 926–27 (E.D.La.2014) (noting the importance of respecting democratic voices).11

11

Of course, blind deference to legislative majorities

would be an abdication of our judicial duty. But, as

explained in Part I, no such blind deference occurs

when inferior courts follow Supreme Court precedent

directly on point, the states have codified rational and

long-accepted definitions of marriage, and the

legislative process has shown itself to be capable of

giving voice (and winning results) to both sides of the

heretofore on-going conversation.

The healthy, spirited, and engaged debate over marriage policy represents the virtues of democratic selfgovernance. The panel’s opinion shuts down the debate, removing the issue from the public square. In so doing, it reflects a profound distrust in—or even a downright rejection of—our constitutional structure. As the Court warned in Osborne, this course of action “takes[s] the development of rules and procedures in this area out of legislatures and state courts shaping policy in a focused manner and turn[s] it over to federal courts applying the broad parameters of the [Fourteenth Amendment].” 557 U.S. at 56, 129 S.Ct. 2308.
Justice Powell, dissenting in the noted death penalty case Furman v. Georgia, warned of the “shattering effect” such an approach has on the principles of “federalism,

judicial restraint and—most importantly—separation of powers.” 408 U.S. 238, 417, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Powell, J., dissenting). Justice Powell acknowledged that in situations where, as here, “the language of the applicable provision provides great leeway and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great.” Id. Nevertheless, he maintained that despite the temptation, “it is not the business of [courts] to pronounce policy.” Id. Here, the panel’s inability to resist such temptation reflects a “lack of faith and confidence in the democratic process.” Id. at 464–65, 92 S.Ct. 2726.
Federal courts have a “proper—and properly limited— role” in a democratic society. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). When we artificially expand our role, not only does it flout the Constitution, it also has deleterious effects on the civic health of our country. We should not be so quick to presume we know what’s best. Judicial humility in service of democratic self-rule is reason alone to rehear these cases en banc.
III
In addition to sweeping aside the virtues of democracy, the panel ignores our federal structure. The panel fails to recognize the principle that marriage law, like other areas of domestic relations, has been and should continue to be an area committed to the states. See Windsor, 133 S.Ct. at 2691–92 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject *912 to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.... [T]he incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.” (emphasis added)); U.S. Dep’t of Health & Human Servs., 682 F.3d at 12 (explaining that “DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage” (emphasis added)). The panel’s opinion ignores this important aspect of Our Federalism.
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Latta v. Otter, 779 F.3d 902 (2015)
A
“Long ago,” the Supreme Court “observed that ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (quoting In re Burrus, 136 U.S. 586, 593–94, 10 S.Ct. 850, 34 L.Ed. 500 (1890)). Indeed, for over a century, federal courts have recognized that actions concerning domestic relations are entrusted to state legislatures and state courts.
In the latest Supreme Court opinion addressing the issue of same-sex marriage, the Court gave a ringing endorsement of the central role of the states in fashioning their own marriage policy. Windsor, 133 S.Ct. at 2689– 93. “By history and tradition,” the Court stated in Windsor, “the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States.” Id. at 2689–90. Indeed, the Court continued, “[t]he recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.” Id. at 2691 (emphasis added); see also id. (“The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations....”); Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.”).
Thus, in Windsor, the Court struck down the federal intrusion into a realm committed to the states, emphasizing the exclusive role that states have in regulating marriage law. Windsor, 133 S.Ct. at 2691. Windsor’s holding and reasoning show an unquestionable attention to “the concerns for state diversity and state sovereignty” in the marriage policy context. Id. at 2697 (Roberts, C.J., dissenting). The panel’s opinion ignores the “undeniable” conclusion that Windsor’s “judgment is based on federalism.” Id.
B
Windsor was correct in resting its holding on federalism.

In striking down the federal legislature’s intrusion into this area of law committed to the states, it held Congress to the same standards to which federal courts have long adhered. Simply stated: the federal judiciary has affirmatively sought to avoid encroachments into state domestic relations policy.

Federal judges have used various doctrinal mechanisms to refrain from intruding into the uncharted waters of state domestic relations law. As the Court explained in Ankenbrandt v. Richards, courts have often avoided such an intrusion by invoking the “domestic relations exception” to federal jurisdiction under the diversity statute. 504 U.S. 689, 693, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992). Other courts have extended the exception to federal *913 question jurisdiction.12 See, e.g., Jones v. Brennan, 465 F.3d 304, 306–08 (7th Cir.2006). And others have invoked abstention doctrines to avoid statelaw domestic relations issues. See, e.g., Moore v. Sims, 442 U.S. 415, 423–35, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Coats v. Woods, 819 F.2d 236, 237 (9th Cir.1987) (“This case, while raising constitutional issues, is at its core a child custody dispute.”); Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir.1983) (“There is no subject matter jurisdiction over these types of domestic disputes.”).13

12

Recent scholarship has even argued that federal courts

may not have Article III jurisdiction over cases

involving marital status determinations. See Steven G.

Calabresi, The Gay Marriage Cases and Federal

Jurisdiction (Northwestern Law & Econ Research

Paper No. 14–18; Northwestern Pub. Law Research

Paper No. 14–50, 2014), available at http://

ssrn.com/abstract-2505514.

13

Though the domestic relations exception itself is

typically confined to divorce or child custody cases, the

Ankenbrandt Court acknowledged that the exception

could be broadly applied when appropriate for the

federal courts to decline to hear a case involving

“elements of the domestic relationship,” Ankenbrandt,

504 U.S. at 705, 112 S.Ct. 2206, even when divorce or

child custody is not strictly at issue. “This would be so

when a case presents ‘difficult questions of state law

bearing on policy problems of substantial public import

whose importance transcends the result in the case then

at bar.’ ” Id. (citation omitted). Undoubtedly, these are

such cases.

In one notable case, the Supreme Court refrained from 9

Latta v. Otter, 779 F.3d 902 (2015)

ruling on the constitutionality of the Pledge of Allegiance—certainly a question of key constitutional import—because doing so would have required rejecting a state court order regarding parental rights of the plaintiff. Newdow, 542 U.S. at 17, 124 S.Ct. 2301. Because the case involved “hard questions of domestic relations [that were] sure to affect the outcome,” it would have been “improper” to exercise jurisdiction and “the prudent course [was] for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.” Id.; see also Smith v. Huckabee, 154 Fed.Appx. 552, 555 (8th Cir.2005) (citing Newdow in declining to exercise jurisdiction over questions implicating state domestic relations law); United States v. MacPhail, 149 Fed.Appx. 449, 456 (6th Cir.2005) (same).
In short, through various doctrinal mechanisms, federal courts have avoided the kind of federal intrusion into state domestic relations law exemplified by the panel’s opinion.14 Whatever the doctrinal tool, the result is the same: because family law issues—including the definition and recognition of marriage—are committed to the states, federal courts ought to refrain from intruding into this core area of state sovereignty.

14

The Court has also noted, of course, that “rare instances

arise in which it is necessary to answer a substantial

federal question that transcends or exists apart from the

family law issue.” Newdow, 542 U.S. at 12–13, 124

S.Ct. 2301 (emphasis added) (citation omitted). This

was the case, for instance, in Palmore v. Sidoti and

Loving v. Virginia. See Palmore v. Sidoti, 466 U.S. 429,

104 S.Ct. 1879, 80 L.Ed.2d 421 (1984); Loving, 388

U.S. 1, 87 S.Ct. 1817. In both Palmore and Loving, the

Court struck down state laws that “raise[d] important

federal concerns arising from the Constitution’s

commitment to eradicating discrimination based on

End of Document

race.” Palmore, 466 U.S. at 432, 104 S.Ct. 1879. Here, however, not only is the Constitution’s commitment to eradicating discrimination based on race not present, but there is no “substantial federal question that transcends or exists apart from the family law issue.”
Here, our court need not decide which of these many potential sources of restraint we should draw from. After all, the Supreme Court has already instructed us that a state’s marriage law judgments simply do not present substantial federal *914 questions that justify intrusion. Baker, 409 U.S. at 810, 93 S.Ct. 37.
The panel’s failure to follow Baker’s command upsets our federal structure and warrants en banc reconsideration.
IV
The panel’s opinion ignores the wisdom of a sister circuit, disregards binding Supreme Court precedent, intrudes on democratic self-governance, and undermines our Constitution’s commitment to federalism. I respectfully dissent from our regrettable failure to rehear these cases en banc.
Parallel Citations
15 Cal. Daily Op. Serv. 260, 2015 Daily Journal D.A.R. 373
© 2015 Thomson Reuters. No claim to original U.S. Government Works.

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