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LAWRENCE G. WASDEN ATTORNEY GENERAL STEVEN L. OLSEN Chief of Civil Litigation Division W. SCOTT ZANZIG, ISB # 9361 CLAY R. SMITH, ISB # 6385 Deputy Attorneys General Civil Litigation Division Office of the Attorney General 954 W. Jefferson Street, 2nd Floor P. O. Box 83720 Boise, ID 83720-0010 Telephone: (208) 334-2400 Fax: (208) 854-8073 scott.zanzig@ag.idaho.gov clay.smith@ag.idaho.gov Attorneys for Defendant-Intervenor

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

SUSAN LATTA et al., Plaintiffs, vs. 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.
DEFENDANT-INTERVENORS MOTION TO DISMISS - 1

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

DEFENDANT-INTERVENORS MOTION TO DISMISS

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Defendant-Intervenor State of Idaho hereby requests dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(6), AND AS GROUNDS THEREFOR states that the complaint fails to state a claim against it for which relief may be granted for the reasons set forth in the accompanying memorandum. DATED this 28th day of January 2014. STATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL

By:

/s/ W. SCOTT ZANZIG CLAY R. SMITH Deputy Attorneys General

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 28th day of January 2014, I electronically filed the foregoing Defendant-Intervenors Motion to Dismiss with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following Persons: Deborah A. Ferguson d@fergusonlawmediation.com Craig Harrison Durham craig@chdlawoffice.com Shannon P. Minter sminter@nclrights.org Christopher F. Stoll cstoll@nclrights.org Thomas Perry tom.perry@gov.idaho.gov Cally Ann Younger cally.younger@gov.idaho.gov

/s/ W. Scott Zanzig

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LAWRENCE G. WASDEN ATTORNEY GENERAL STEVEN L. OLSEN Chief of Civil Litigation Division W. SCOTT ZANZIG, ISB # 9361 CLAY R. SMITH, ISB # 6385 Deputy Attorneys General Civil Litigation Division Office of the Attorney General 954 W. Jefferson Street, 2nd Floor P. O. Box 83720 Boise, ID 83720-0010 Telephone: (208) 334-2400 Fax: (208) 854-8073 scott.zanzig@ag.idaho.gov clay.smith@ag.idaho.gov Attorneys for Defendant-Intervenor IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO SUSAN LATTA et al., Plaintiffs, vs. 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 IN SUPPORT OF DEFENDANT-INTERVENORS MOTION TO DISMISS

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I. INTRODUCTION Defendant-Intervenor State of Idaho (Idaho or State) adopts by reference the memorandum in support of defendant Christopher Richs motion to dismiss filed on January 9, 2014. Dkt. 30-1. However, subsequent to its submission, two decisions relevant to the issues discussed in the memorandum were issued: SmithKline Beecham Corp. v. Abbott Laboratories, Nos. 11-17357 & 11-17373, 2014 WL 211807 (9th Cir. Jan. 21, 2014), and Bishop v. United States, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014). Idaho submits additional analysis below addressing these decisions. II. SUPPLEMENTAL ARGUMENT A. SmithKline The Court of Appeals held in SmithKline the use of a sexual orientation-based peremptory challenge to a prospective juror in civil litigation gave rise to Batson 1 error. In so holding, the court recognized that under Batson if sexual orientation is subject to rational basis review, the defendants peremptory strike did not require reversal (2014 WL 211807, at *5) but read United States v. Windsor, 133 S. Ct. 2675 (2013), as subjecting sexual orientation to a heightened form of rational basis scrutiny. 2014 WL 211807, at *9 (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 second-class status). It then analogized the unique circumstances of gays and lesbians in
Batson v. Kentucky, 476 U.S. 79 (1986). The Court of Appeals reiterated the minimal requirements of rational basis review, distinguishing Windsor from, inter alia, FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). See 2014 WL 211807, at *7 ([i]n Windsor, instead of conceiving of hypothetical justifications for the law, the Court evaluated the essence of the law). The courts reference to the availability of hypothetical justifications underscores the propriety of considering extrinsic
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our society (id., at *10) to women, to whom Batson protection was extended in J.E.B. v. Alabama, 511 U.S. 141 (1994). The Court completed its analysis by relying upon various judicial decisions, law review articles and non-legal books or articles for the conclusion that [g]ays and lesbians have been systematically excluded from the most important institutions of self-government (2014 WL 211807, at *10) and that permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation (id., at *12). Like Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), which applied a form of heightened rational basis scrutiny to determining for substantive due process purposes the validity of the militarys Dont Ask, Dont Tell policy, SmithKline focused narrowly to the task at hand: discrimination against the prospective juror based upon his sexual orientation. Denying same-sex couples access to marriage, however, does not

discriminate on the basis of sexual orientation. It instead makes marital status available to couples who, by virtue their differing sexes, possess the biological distinctions prerequisite to procreation. That standard says nothing about sexual orientation because nothing precludes

materials in the context of a motion under Fed. R. Civ. P. 12(b)(6) where rational basis provides the rule of decision. See Silveira v. Lockyer, 312 F.3d 1052, 1090-92 (9th Cir. 2002) (ordering and then addressing supplemental briefing with respect to the existence of a rational basis to support exception with respect to the transfer of weapons upon a peace officers retirement); Gallagher v. City of Clayton, 699 F.3d 1013, 1019-20 (8th Cir. 2012) (rejecting plaintiffs attempt to negate smoking-effect studies as rational basis for ordinance; [a]lthough the Board could have engaged in rational speculation unsupported by evidence or empirical data that outdoor secondhand smoke exposure harms health, the Board went further and relied on reports that could . . . reasonably be conceived to be true). As the Fifth Circuit observed in Mahone v. Addicks Utility District of Harris County, 836 F.2d 921 (5th Cir. 1988), when truth is not the issue, we can understand how using discovery procedures to develop facts showing the states true reason for its actions could be, for all practical purposes, both inefficient and unnecessary and that, consequently, in some cases it makes sense to use a motion to dismiss as the vehicle through which to address the viability of the plaintiffs claim. Id. at 936. If a governmental defendant may hypothesize rational grounds for a particular statute or regulation, it makes no sense to preclude it from bringing extrinsic documents to the courts attention that reflect those grounds.
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individuals of different sexes from marrying whatever their sexual orientation. Indeed, as noted in Defendant Richs memorandum, governmental inquiries into private decisionmaking related to matters of sexual intimacy or childbearing intentions to cull out certain couples from eligibility for marital status would assuredly violate the Due Process Clause of the Fourteenth Amendment. See Dkt. 30-1 at 16 n.7. Civil marriage under Idaho Code 32201 thus does not legitimize some and de-legitimize other sexual conduct; it instead leaves to the parties determination of whether to engage in sexual activity and, if so, with whom. Idaho law nevertheless anticipates that many heterosexual couples will have children and uses marital status as one means to further the state interest in encouraging stable family structures with both biological parents present. Windsor does not counsel a different result. The core problems there lay in Congress inversion of the ordinary deference of the federal government to the States regulation of marriage and, more importantly, in its transmutation of state-law protected status into a federal law disability. See 133 S. Ct. at 2692 ([w]hat the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect). The Court found this inversion and transmutation grounded, as the relevant House of Representatives report explained, in both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo Christian) morality. Id. at 2693. The SmithKline Court viewed this congressionallysanctioned discrimination as predicated purely on sexual orientation, but the discrimination involved declining to give effect to one form of a States marital status determination but not to another. Neither Windsor nor SmithKline holds, or fairly interpreted suggests, that a States restriction of civil marriage to opposite-sex couples embodies sexual orientation discrimination. Windsor supports precisely the opposite conclusion through its explicit

recognition of the States historic and essential authority to define the marital relation as they deem appropriate. Id. at 2692. New York, in short, made one choice; Idaho may make
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another so long as that choice comports, for equal protection or substantive due process purposes, with the traditional rational basis standard. B. Bishop The district courts decision has immediate relevance on two issues: the precedential status of Baker v. Nelson, 409 U.S. 810 (1972), and the existence vel non of a rational basis for Oklahomas restriction of marriage to opposite-sex couples. Idaho addresses those issues in order. 1. Baker v. Nelson

The Bishop court held that significant doctrinal developments in the Supreme Courts jurisprudence since 1972 indicate that questions deemed insubstantial in Baker would now be deemed substantial. 2014 WL 116013, at *16. Those doctrinal

developments are the extension of heightened scrutiny to sex-based classifications (citing Craig v. Boren, 429 U.S. 190 (1976)), and the Romer-Lawrence-Windsor trilogy. However, the district court itself correctly concluded that opposite-sex marriage statutes do not represent sex-based discrimination (2014 WL 116013, at *25), and that doctrinal development[] thus carries no weight for Baker purposes. The heightened scrutiny analysis in Part III of the SmithKline opinion would have been superfluous were the contrary true. As Defendant Richs memorandum argued (Dkt. 30-1 at 4-6) and discussed above in connection with SmithKline, the trilogy did not mark a sea-change in rational basis analysis with respect to the issue of same-sex marriage but, rather, presented factually and legally distinct issues and in which the Supreme Court neither referred to Baker nor signaled that opposite-sex marriage statutes would be subjected to any review standard other than the one applied by the Minnesota Supreme Courtrational basis. See Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971) (The 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. . . .
3 3

Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003).

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[T]he classification is no more than theoretically imperfect. We are reminded, however, that abstract symmetry is not demanded by the Fourteenth Amendment.), appeal dismissed for want of substantial federal question, 409 U.S. 810 (1972). The rational basis asserted by the Minnesota court also has not lost its force. Id. at 186 ([t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis). The mere fact that some States through legislation or court decree have opted to depart from limiting marriage to opposite-sex couples says nothing germane with respect to whether the Supreme Court clearly has modified due process or equal protection principles that controlled in Baker. This Court, in short, may not pick and choose snippets in Supreme Court opinions to determine whether the requisite doctrinal change has occurred where, as here, the precise questions raised by plaintiffs challenge to Article III, Section 28 and Idaho Code 32-201 were presented in Baker. See Carpenters Pension Trust v. Kronschnabel, 632 F.2d 745, 747-48 (9th Cir. 1980). The Windsor Court foresaw the possibility of this picking and choosing and therefore explicitly cautioned lower courts against construing the decision any more broadly than invalidating application of 1 U.S.C. 7 with respect to same-sex marriages lawful in the State where entered into. 133 S. Ct. at 2696; see also id. at 2696-97 (Roberts, C.J., dissenting). As such, Windsor leaves Bakers summary disposition intact. 2. Rational Basis

The Bishop court purported to subject Oklahomas marriage laws to traditional rational basis review. See 2014 WL 116013, at *25-*26. But rather than deferring to legislative choices as the rational basis standard requires, the court applied a much more aggressive approach, rejecting a number of justifications Oklahoma offered in support of its laws that limit marriage to opposite-sex couples. See id. at *28-*33. The Bishop courts failure to apply the rational basis test properly led it to reject the very same justifications that courts have repeatedly held to validly support opposite-sex
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marriage laws. See, e.g., Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1014-18 (D. Nev. 2012); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1111-16 (D. Haw. 2012); Andersen v. King County, 138 P.3d 963, 982-83 (Wash. 2006); Hernandez v. Robles, 855 N.E.2d 1, 6-9 (N.Y. App. Div. 2006); Morrison v. Sadler, 821 N.E.2d 15, 22-31 (Ind. Ct. App. 2005). The Court of Appeals for the Eighth Circuit summarized the valid rational basis for opposite-sex marriage laws in Bruning: By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws encourage procreation to take place within the socially recognized unit that is best situated for raising children. . . . The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children . . . . But it is also based on a responsible procreation theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. 455 F.3d at 867. The Bishop court rejected these well-established justifications by asserting that a same-sex couples inability to naturally procreate is not a biological distinction of critical importance. 2014 WL 116013, at *29. In essence, therefore, the court substituted its judgment for that of the legislature, contending that Oklahomas laws are underinclusive, and that marriage benefits should be extended to same-sex couples. But this is the sort of public policy choice that the rational basis test demands be left to the legislature. And it is precisely the analysis the Bruning court properly rejected: [U]nder rational-basis review, [e]ven if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule that . . . perfection is by no means required. . . . Legislatures are permitted to use generalizations so long as the question is at least debatable. . . . The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature-or the people through the initiative process-may rationally choose not to
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expand in wholesale fashion the groups entitled to those benefits. We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience. 455 F.3d at 868 (internal quotations and citations omitted). Because Bishop misapplied the rational basis standard, it does not alter the fact that Idahos marriage laws are reasonably related to legitimate government purposes. III. CONCLUSION For the foregoing reasons, the State of Idaho respectfully requests that the Court grant Idahos motion to dismiss. DATED this 28th day of January 2014. STATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL

By:

/s/ W. SCOTT ZANZIG CLAY R. SMITH Deputy Attorneys General

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 28th day of January 2014, I electronically filed the foregoing Memorandum in Support of Defendant-Intervenors Motion to Dismiss with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following Persons: Deborah A. Ferguson d@fergusonlawmediation.com Craig Harrison Durham craig@chdlawoffice.com Shannon P. Minter sminter@nclrights.org Christopher F. Stoll cstoll@nclrights.org Thomas Perry tom.perry@gov.idaho.gov Cally Ann Younger cally.younger@gov.idaho.gov

/s/ W. Scott Zanzig

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