Case 1:13-cv-01861-JEJ Document 114 Filed 04/21/14 Page 1 of 87

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WHITEWOOD, et al., Plaintiffs, v. WOLF, et al., Defendants. Civil Action No. 13-1861-JEJ

________________________________________________________ PLAINTIFFS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ________________________________________________________

TABLE OF CONTENTS INTRODUCTION ..................................................................................................... 1 PROCEDURAL HISTORY....................................................................................... 4 STATEMENT OF FACTS ........................................................................................ 5 STATEMENT OF QUESTIONS INVOLVED....................................................... 13 LEGAL STANDARD .............................................................................................. 14 ARGUMENT ........................................................................................................... 14 I. Pennsylvanias Marriage Exclusion Is Subject To Heightened Scrutiny Because It Burdens The Fundamental Right To Marry Protected By The Due Process Clause ..................................................... 15 A. The freedom to marry is a fundamental right. ............................... 16 B. The scope of a fundamental right under the Due Process Clause does not depend on who has been permitted to exercise that right in the past. .............................................................................. 17 C. Same-sex couples, like opposite-sex couples, bring to marriage the commitment that the fundamental right of marriage protects. . 20 D. The Marriage Exclusion burdens Plaintiffs fundamental right to marry by prohibiting them from marrying in Pennsylvania and treating as void the marriages of those who married in other states. .............................................................................................. 23 II. Pennsylvanias Marriage Exclusion Is Subject To Heightened Scrutiny Because It Discriminates Based On Sexual Orientation. .......... 26 III. Pennsylvanias Marriage Exclusion Is Subject To Heightened Scrutiny Because It Discriminates Based On Sex. ................................... 36 IV. Pennsylvanias Marriage Exclusion Is Unconstitutional Under Any Level Of Scrutiny. .................................................................................... 37
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A. The Marriage Exclusion does not rationally further any government interest related to procreation or childrens wellbeing. .............................................................................................. 39 B. An asserted interest in preventing adverse economic impacts on the Commonwealth and businesses does not satisfy rational basis review. ................................................................................... 55 C. An asserted interest in tradition does not satisfy rational basis review. ............................................................................................ 60 V. No Legitimate Interest Overcomes The Purpose And Effect Of Pennsylvanias Marriage Exclusion To Disparage And Injure Same-Sex Couples And Their Families. .................................................. 63 CONCLUSION ........................................................................................................ 70

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TABLE OF AUTHORITIES
Page(s) CASES

Adoption of R.B.F., 803 A.2d 1195 (Pa. 2002) ................................................................................... 50 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................ 14 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .................................................................................... 36 Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014), appeal docketed, Nos. 14-5003, 14-5006 (10th Cir. Jan. 17, 2014) ................................................................passim Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001) ............................................................................................ 65 Bostic v. Rainey, No. 13-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014), appeal docketed, No. 14-1167 (4th Cir. Feb. 25 2014). ..........................................................passim Bourke v. Beshear, No. 13-750, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014), appeal docketed, No. 14-5291 (6th Cir. Mar. 19, 2014) .........................................passim Bowers v. Hardwick, 478 U.S. 186 (1986) ............................................................................................ 18 Bray v. Alexandria Womens Health Clinic, 506 U.S. 263 (1993) ............................................................................................ 27 Caban v. Mohammed, 441 U.S. 380 (1979) ............................................................................................ 46 Califano v. Westcott, 443 U.S. 76 (1979) .............................................................................................. 46 Carey v. Population Services, 431 U.S. 678 (1977) ............................................................................................ 17

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Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010) ........................................................................................ 26 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) .....................................................................................passim Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) ............................................................................................ 16 Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) ......................................................................................45, 46 DeBoer v. Snyder, No. 12-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014), appeal docketed No. 14-1341 (6th Cir. Mar. 21, 2014) ..........................................passim De Leon v. Perry, No. 13-982, 2014 WL 556729 (W.D. Tx. Feb. 26, 2014) ...........................passim Frontiero v. Richardson, 411 U.S. 677 (1973) ............................................................................................ 35 Garden State Equality v. Dow, 79 A.3d 1036 (N.J. 2013) ..................................................................................... 3 Golinsky v. United States Office of Personnel Management, 824 F. Supp. 2d 294 (D. Conn. 2012) ..........................................................passim Goodridge v. Department of Public Health, 798 N.E. 2d. 941 (Mass. 2003) ...........................................................3, 16, 23, 48 Griego v. Oliver, 316 P.3d 865 (N.M. 2013) ...........................................................................passim Griswold v. Connecticut, 381 U.S. 479 (1965) ......................................................................................21, 55 Grutter v. Bollinger, 539 U.S. 306 (2003) ............................................................................................ 26 Heller v. Doe by Doe, 509 U.S. 312 (1993) ..........................................................................50, 53, 57, 61

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Howard v. Child Welfare Agency Review Board, No. 1999-9881, 2004 WL 3154530 (Ark. Cir. Ct. Dec. 29, 2004), affd sub nom. Department of Human Services v. Howard, 238 S.W. 3d 1 (Ark. 2006) ............................................................................................................. 51, 52 In re Adoption of Doe, 2008 WL 5006172 (Fla. Cir. Ct. Nov. 25, 2008), affd sub nom. Fla. Dept of Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010) ............................................................................................ 51 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .............................................................................passim J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994) ..........................................................................36, 37, 46, 61 Kaucher v. County of Bucks, 455 F.3d 418 (3d Cir. 2006) ............................................................................... 14 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) ................................................................3, 28, 34, 61 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), appeal docketed, No. 13-4178 (10th Cir. Dec. 20, 2013) .............................................................................passim Lawrence v. Texas, 539 U.S. 558 (2003) .....................................................................................passim Loving v. Virginia, 388 U.S. 1 (1967) ..............................................................................16, 17, 36, 37 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ............................................................................................ 25 Minnesota v. Clover Leaf Creamery, 449 U.S. 456 (1981) ............................................................................................ 51 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) ............................................................................................ 46 New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) ............................................................................................ 64
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Nyquist v. Mauclet, 432 U.S. 1 (1977) ................................................................................................ 33 Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), appeal docketed, No. 14-3057 (6th Cir. Jan. 22, 2014) ................................................................................passim Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) .............................................................................. 28 Pedersen v. Office of Personnel Management, 881 F. Supp. 2d 294 (D. Conn. 2012) ..........................................................passim Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded on other grounds sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ................................. 43 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), affd on other grounds sub nom Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded on other grounds sub nom Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ...passim Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) ............................................................................................ 67 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ......................................................................................19, 47 Plyler v. Doe, 457 U.S. 202 (1982) ................................................................................26, 47, 57 Quilloin v. Walcott, 434 U.S. 246 (1978) ............................................................................................ 24 Rice v. Cayetano, 528 U.S. 495 (2000) ............................................................................................ 36 Roberts v.United States Jaycees, 468 U.S. 609 (1984) ............................................................................................ 17 Romer v. Evans, 517 U.S. 620 (1996) .....................................................................................passim

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Railway Express Agency v. New York, 336 U.S. 106 (1949) ............................................................................................ 45 Santosky v. Kramer, 455 U.S. 745 (1982) ............................................................................................ 25 Smithkline Beachem Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) .............................................................................. 28 Tanco v. Haslam, No. 13-1159, 2014 WL 997525 (M.D. Tenn. Mar 14, 2014), appeal docketed, No. 14-5297 (6th Cir. Mar. 19, 2014) .................................................. 3 Troxel v. Granville, 530 U.S. 57 (2000) .............................................................................................. 15 Turner v. Safley 482 U.S. 78 (1987) .................................................................................16, 17, 21 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ................................................................................ 39, 53, 64 United States v. Virginia, 518 U.S. 515 (1996) .....................................................................................passim United States v. Windsor, 133 S. Ct. 2674 (2013) .................................................................................passim Vance v. Bradley, 440 U.S. 93 (1979) .............................................................................................. 64 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ......................................................................passim Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ............................................................................................ 66 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ........................................................................passim Zablocki v. Redhail, 434 U.S 374 (1978) .......................................................................................15, 17

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Zobel v. Williams, 457 U.S 55 (1982) ............................................................................................... 64 STATUTES 23 Pa. C.S. 1102 .................................................................................................. 2, 5 23 Pa. C.S. 1704 ............................................................................................2, 5, 66 72 P.S. 9116(a) ........................................................................................................ 7 28 U.S.C. 1738C ................................................................................................... 23 42 U.S.C. 416(h)(1)(A)(i) ................................................................................... 8, 9 OTHER AUTHORITIES 29 C.F.R. 825.122(b) .............................................................................................. 9 Federal Rule of Civil Procedure 56(a) ..................................................................... 14

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TABLE OF EXHIBITS1 Exhibit No. PX-01 PX-02 PX-03 PX-04 PX-05 PX-06 PX-07 PX-08 PX-09 PX-10 PX-11 Description Expert report of M. V. Lee Badgett, Ph.D. Expert report of Lenore F. Carpenter, J.D. Expert report of George Chauncey, Ph.D. Expert report of Nancy F. Cott, Ph.D. Expert report of Michael E. Lamb, Ph.D. Expert report of Letitia Anne Peplau, Ph.D. Declaration of Deborah Whitewood with exhibits PX-07-A through PX-07-F Declaration of Susan Whitewood Declaration of Fredia Hurdle Declaration of Lynn Hurdle with exhibits PX-10-A through PX-10-F Declaration of Edwin Hill with exhibits PX-11-A through PX-11-C Text Reference Badgett Carpenter Chauncey Cott Lamb Peplau D. Whitewood S. Whitewood F. Hurdle L. Hurdle Hill

All exhibits listed in the Table of Exhibits are attached to Plaintiffs Statement of Uncontested Material Facts, filed contemporaneously with this Brief. Information subject to Federal Rule of Civil Procedure 5.2 and other confidential information relating to Plaintiffs and third parties has been redacted from the exhibits to Plaintiffs declarations (PX-07 through PX-30). Unredacted versions of these documents were produced to Defendants in discovery, and Plaintiffs will provide unredacted versions to the Court upon request.

Exhibit No. PX-12 PX-13 PX-14 PX-15 PX-16 PX-17 PX-18 PX-19 PX-20 PX-21 PX-22 PX-23 PX-24 PX-25 PX-26 PX-27

Description Declaration of David Palmer Declaration of Heather Poehler with exhibits PX13-A through PX-13-H Declaration of Kath Poehler Declaration of Fernando Chang-Muy with exhibits PX-15-A through PX-15-D Declaration of Len Rieser Declaration of Dawn Plummer with exhibits PX17-A through PX-17-F Declaration of Diana Polson

Text Reference Palmer H. Poehler K. Poehler Chang-Muy Rieser Plummer Polson

Declaration of Angela Gillem with exhibits PX-19- Gillem A through PX-19-D Declaration of Gail Lloyd Lloyd Declaration of Helena Miller Declaration of Dara Raspberry with exhibits PX22-A through PX-22-H Declaration of Ron Gebhardtsbauer Declaration of Gregory Wright with exhibits PX24-A through PX-24-D Declaration of Julia Lobur with exhibits PX-25-A through PX-25-J Declaration of Marla Cattermole Declaration of Sandra Ferlanie Miller Raspberry Gebhardtsbauer Wright Lobur Cattermole Ferlanie

Exhibit No. PX-28 PX-29 PX-30 PX-31 PX-32 PX-33 PX-34 PX-35

Description Declaration of Christine Donato with exhibits PX28-A through PX-28-F Declaration of Maureen Hennessey with exhibits PX-29-A through PX-29-L Declaration of A.W. with exhibit PX-30-A Declaration of Veronica Donato Deposition of Diana Polson, at 23 (Mar. 5, 2014) Deposition of Deborah Whitewood, at 53 (Mar. 5, 2014) Deposition of Fredia Hurdle, at 74 (Mar. 6, 2014) Commonwealth Defendants Responses to Plaintiffs First Set of Interrogatories (Dec. 16, 2013) Commonwealth Defendants Responses to Plaintiffs First Set of Requests for Production of Documents (Dec. 16, 2013) Commonwealth Defendants Responses to Plaintiffs Second Set of Interrogatories (Feb. 26, 2014) Commonwealth Defendants Responses to Plaintiffs Second Set of Requests for Production of Documents (Feb. 26, 2014) Subpoena to Produce Documents Directed to Custodian of Records, Pennsylvania Department of Public Welfare (Nov. 25, 2013) Response of the Pennsylvania Department of Public Welfare to Plaintiffs Subpoena to Produce Documents (Dec. 17, 2013) Form PA-40, 2012 Pennsylvania Income Tax Return

Text Reference C. Donato Hennessey A.W. V. Donato Polson Dep. D. Whitewood Dep. F. Hurdle Dep.

PX-36

PX-37

PX-38

PX-39

PX-40

PX-41

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Exhibit No. PX-42 PX-43 PX-44

Description Pennsylvania Department of Revenue, Pennsylvania Personal Income Tax Return Certificate of Death Commonwealth of Pennsylvania, Department of Health, 2012 Death Certificate Registration Manual (Mar. 13, 2013) 1996 Pa. Legislative Journal (House), at 2016-2035 (June 28, 1996) 1996 Pa. Legislative Journal (Senate), at 24522454 (Oct. 1, 1996) 1996 Pa. Legislative Journal (House), at 2186-2187 (Oct. 7, 1996) 1996 Pa. Legislative Journal (House), at 2193-2194 (Oct. 7, 1996) 1990 Pa. Legislative Journal (House), at 1202-1212 (June 26, 1990) 2006 Pa. Legislative Journal (Senate), at 17711782 (June 21, 2006) 2006 Pa. Legislative Journal (House), at 1139-1159 (June 6, 2006) Complaint, Egolf v. Seneca, No. 2004-03160 (C.P. Bucks County, Pa., May 13, 2004) Opinion, Egolf v. Seneca, No. 2004-03160 (C.P. Bucks County, Pa. Oct. 19, 2004) Jeff Hawkes, To Boyd, Marriage Completes You Unless Youre Gay, LancasterOnline.com (Jan. 24, 2006). PEBTF, Benefit News for Active Members (Spring 2009) Marc Levy, Its Just the Right Thing to Do, NBC10.com (May 15, 2009)

Text Reference

PX-45 PX-46 PX-47 PX-48 PX-49 PX-50 PX-51 PX-52-A PX-52-B PX-53

PX-54 PX-55

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Exhibit No. PX-56

Description Mauriello, Early Returns, Pitt. Post-Gazette (Jun. 29, 2009), quoted in The Hotline (June 30, 2009), available at 2009 WLNR 14846542 Marc Levy and Karen Araiza, Same Sex Partners Can Celebrate, NBC10.com (July 1, 2009) Notice of Intervention, Kern v. Taney, No. 0910738 #2 (C.P. Berks County, Pa., Feb. 11, 2010) Viewpoint Newsletter of the Pennsylvania Catholic Conference (Spring 2010) Mollie Reilly, Brian Sims, Pennsylvania Lawmaker, Silenced on DOMA, Huffington Post (June 27, 2013) Letter from Adrian R. King, Jr., First Deputy Attorney General to James D. Schultz, General Counsel (July 30, 2013) Interview with Governor Thomas Corbett, WHPTV (Oct. 4, 2013) John L. Micek, Corbett Apologizes For Remarks About Same-Sex Couples, PennLive (Oct. 4, 2013) Stipulation of Facts Between Plaintiffs and Defendants Meuser and Wolf (Apr. 21, 2014)

Text Reference

PX-57 PX-58 PX-59 PX-60

PX-61

PX-62 PX-63 PX-64

Stipulation

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INTRODUCTION The term partner does not adequately convey our love for each other or the level of commitment we have made to each other. Plaintiff Greg Wright, Wright 4. [I]ts difficult . . . to explain to our five-year-old why . . . his parents cant get married. Thats a hardship on us, and, you know, I believe an injustice for him. Plaintiff Diana Polson, Polson Dep. 23:14-18. Theres a lot of times where I have to check a box that says single; that bothers me because Im not single, Im married, and that hurts. Theres a lot of those hurts that happen. Plaintiff Deb Whitewood, D. Whitewood Dep. 53:10-14. [T]he fact is, Lynn and I are in an interracial relationship; the fact is, all this is making me think back to Virginia, coming up as a child, having to deal with these issues. . . . I want my family to be recognized just like anybody elses, thats a fact. Plaintiff Fredia Hurdle, F. Hurdle Dep. 74:1-16. [Marriage equality] would mean everything. It would [mean] the freedom to know that you would be taken care of. . . . And thats something that I worry about every single day. And I wish I didnt have that worry. Because you dont deserve that. Mary Beth McIntyre, wife of Plaintiff Maureen Hennessey, speaking to Maureen three weeks before succumbing to cancer. PX-29-G.

Plaintiffs are eleven lesbian and gay couples, one widow, and two teenage children of one of the Plaintiff couples. They challenge the constitutionality of Pennsylvanias laws excluding same-sex couples from marriage and voiding within

Pennsylvania the marriages of same-sex couples entered into in other states (collectively, the Marriage Exclusion).2 Plaintiffs Fredia and Lynn Hurdle, Fernando Chang-Muy and Len Rieser, Dawn Plummer and Diana Polson, and Sandy Ferlanie and Christine Donato are lesbian and gay couples in committed relationships who wish to marry for the same reasons so many other couples get marriedto declare their love and commitment before their family, friends and community, and to give one another the security and protections that only marriage provides. Plaintiffs Deb and Susan Whitewood, Edwin Hill and David Palmer, Heather and Kath Poehler, Angela Gillem and Gail Lloyd, Helena Miller and Dara Raspberry, Ron Gebhardtsbauer and Greg Wright, and Marla Cattermole and Julie Lobur are already married, having wed in other states, but are treated as legal strangers in their home state, the Commonwealth of Pennsylvania. Plaintiff Maureen Hennessey is a widow who lost her spouse, Mary Beth McIntyre, after 29 years together. Because Mary Beth was a woman, their marriage is not recognized by Pennsylvania and she is not provided the legal protections afforded to widows; she is also denied the dignity and respect of being recognized as the widow of her late spouse. Plaintiffs A.W. and K.W. are the The term Marriage Exclusion refers to 23 Pa. C.S. 1102 and 1704 and all other laws and practices of Pennsylvania prohibiting same-sex couples from marrying in Pennsylvania or having their marriages from being recognized in Pennsylvania.
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children of plaintiffs Deb and Susan Whitewood. They seek recognition in Pennsylvania of their parents marriage so that their family is afforded the same respect and protections as other families. As all eight federal courts that have ruled on this issue since United States v. Windsor, 133 S. Ct. 2675 (2013), have agreed, excluding same-sex couples from marriage is unconstitutional.3 Denying same-sex couples the ability to marry and treating as void their existing marriages violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Pennsylvanias Marriage Exclusion is subject to heightened scrutiny because it DeBoer v. Snyder, No. 12-10285, 2014 WL 1100794 (E.D. Mich. Mar 21, 2014), appeal docketed, No. 14-1341 (6th Cir. Mar. 21, 2014); Tanco v. Haslam, No. 13-1159, 2014 WL 997525 (M.D. Tenn. Mar 14, 2014) (preliminary injunction), appeal docketed, No. 14-5297 (6th Cir. Mar. 19, 2014); De Leon v. Perry, No. 13-982, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) (preliminary injunction); Bostic v. Rainey, No. 13-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014), appeal docketed, No. 14-1167 (4th Cir. Feb. 25, 2014); Bourke v. Beshear, No. 13-750, 2014 WL 556729 (W.D. Ky. Feb 12, 2014), appeal docketed, No. 145291 (6th Cir. Mar. 19, 2014); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014), appeal docketed, Nos. 14-5003, 14-5006 (10th Cir. Jan. 17, 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), appeal docketed, No. 14-3057 (6th Cir. Jan. 22, 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), appeal docketed, 13-4178 (10th Cir. Dec. 20, 2013). In addition, six state high courts, including two in the past year, have held that marriage bans violate their state constitutions. Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Garden State Equality v. Dow, 79 A.3d 1036 (N.J. 2013); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); In re Marriage Cases, 183 P.3d 384 (Cal. 2008); Kerrigan v. Commr of Pub. Health, 957 A.2d 407 (Conn. 2008); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
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burdens the fundamental right to marry and discriminates based on sexual orientation and sex. But it cannot stand under any level of scrutiny because the exclusion does not rationally further any legitimate government interest; it serves only to disparage and injure lesbian and gay couples and their families. Plaintiffs therefore ask this Court to grant their motion for summary judgment and declare that Pennsylvanias Marriage Exclusion is unconstitutional and enjoin its enforcement. PROCEDURAL HISTORY Plaintiffs commenced this action on July 9, 2013 against Defendants Governor Thomas Corbett; Secretary of the Pennsylvania Department of Public Health Michael Wolf; Attorney General Kathleen Kane; Register of Wills of Washington County Mary Jo Poknis; and Register of Wills and Clerk of Orphans Court of Bucks County Donald Petrille, Jr. On September 30, 2013, Defendants filed motions to dismiss. During the pendency of these motions, Plaintiffs voluntarily dismissed Defendant Poknis on October 21, 2013, and Defendants Kane and Corbett on November 1, 2013, and they filed an amended complaint on November 7, 2013 against Defendants Wolf, Petrille, and Secretary of the Pennsylvania Department of Revenue Dan Meuser. On November 15, 2013, the Court denied the motions to dismiss of Defendants Wolf and Petrille.

By this motion, Plaintiffs seek summary judgment on all counts of their First Amended Complaint. STATEMENT OF FACTS4 In 1996, the Pennsylvania legislature amended Pennsylvanias marriage laws expressly to prohibit marriage for same-sex couples. The 1996 amendment had two parts. First, it codified the definition of marriage as [a] civil contract by which one man and one woman take each other for husband and wife. 23 Pa. C.S. 1102. Second, in stark departure from Pennsylvanias usual recognition of marriages validly entered into in other states, it made void in this Commonwealth any marriage between persons of the same sex . . . entered into in another state or foreign jurisdiction, even if valid where entered into. 23 Pa. C.S. 1704. The sponsor of the 1996 amendment made clear that it was a reaction to the prospect of marriage for same-sex couples coming to the United States as a result of a decision from a Hawaii court. 1996 Pa. Legis. J. (House) (June 28, 1996), at 2017 (Do you want a group of judges in Hawaii determining Pennsylvanias laws and policies?), PX-45. Pennsylvania was one of fourteen states to amend their marriage laws in 1996 in response to the Hawaii case. (Chauncey 97-98.) A more extensive discussion of relevant facts is contained in Plaintiffs Statement of Uncontested Material Facts, filed contemporaneously with this Brief.
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Same-sex couples are excluded from marriage in Pennsylvania despite the fact that they make the same commitments to one another as opposite-sex couples. (Peplau 33-37.) Like opposite-sex couples, same-sex couples build their lives together; some, like Edwin Hill and David Palmer, Fernando Chang-Muy and Len Reiser, Marla Cattermole and Julia Lobur, and Maureen Hennessey and her late spouse, have done so for more than a quarter century. (Hill 3; Chang-Muy 3; Lobur 4; Hennessey 4.) Like opposite-sex couples, same-sex couples support one another emotionally and financially, and they take care of one another when faced with illness or injury. (Badgett 32-33.) For example, when Maureen Hennesseys spouse Mary Beth McIntyre was in end-stage cancer and unable to take basic care of herself, Maureen left her job as a substitute teacher to be home with her and feed, bathe and otherwise care for her until she passed away. (Hennessey 6.) Like opposite sex-couples, same-sex couples become part of one anothers extended families and support one anothers relatives in times of need. For example, Marla Cattermole and Julia Lobur together supported and cared for Julias mother in their home during the last years of her life when it became difficult for her physically and financially to live on her own. (Lobur 7.) Like some opposite-sex couples, some same-sex couples like Deb and Susan Whitewood, Fernando Chang-Muy and Len Reiser, Dawn Plummer and Diana Polson, Helena Miller and Dara Raspberrry, and Sandy Ferlanie and Christine

Donato are parents raising children together. (D. Whitewood 7-8; Chang-Muy 5; Plummer 7; Raspberry 11; C. Donato 5, 8-11.) The Plaintiff couples are spouses in every sense except that Pennsylvania law says they cannot marry and, for those who are married under the laws of another state, their marriages are not honored here. The Marriage Exclusion harms Plaintiffs and countless other Pennsylvania families by denying them the numerous protections and obligations of marriage under state law, as well as important protections that the federal government affords to married couples. For example because of the Marriage Exclusion: When Fredia Hurdle was taken into surgery, hospital staff would not provide any information to Lynn about what was happening with Fredia because she was not considered family, leaving her feeling frightened and helpless. (L. Hurdle 7.) Edwin Hill and David Palmer, retired seniors on a fixed income, worry about the fact that when one of them passes away, the widower will have to pay a 15% inheritance tax on half of all of their joint property,5 a tax from which he would be exempt if their marriage were recognized by the Commonwealth. (Hill 9); 72 P.S. 9116(a). To give an idea of the impact of this tax, for a same-sex couple who jointly owns a home valued at $147,100 (the median home price in Pennsylvania), when one spouse or partner dies, the survivor would inherit $73,550 in value. Applying the 15% tax rate, the surviving spouse or partner would owe the Commonwealth $11,032.50 (or $10,480.87 with the early payment discount). If their common home were held solely in the name of the deceased spouse or partner, the inheritance tax owed by the surviving spouse or partner would be $22,065. (Badgett 41-42.) This does not include the tax that would be owed for half the value of all other shared property of the couple.
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 Dawn Plummer and Diana Polsons younger son, J.P., does not have a legal parent-child relationship with one of his parents because the family is denied the presumption that a child born to a married couple is the child of both spouses (see Carpenter 59-62), and his parents need to save money to pay the more than $2,500 they were told it will cost to do a second parent adoption. (Plummer 9.) In her final days before succumbing to cancer, Maureen Hennesseys spouse Mary Beth McIntyre had the additional burden of worrying about how Maureen would manage financially after she was gone since Mary Beths social security survivor benefits would be unavailable to her. See Video of Mary Beth McIntyre and Maureen Hennessey, PX-29-G.6 Angela Gillem and Gail Lloyd similarly worry about Gails financial security should Angela, the primary breadwinner, pass away first: Gail is an artist, so she does not draw a steady paycheck to contribute to social security. . . Pennsylvanias refusal to recognize our marriage might mean that Gail cannot collect my social security benefits if I die first. I live every day with the fear that the steps I have taken will not be enough to protect Gail if something should happen to me. (Gillem 8-9.) Other examples of the numerous protections afforded to married couples by Pennsylvania law but denied to same-sex couples include the automatic right to On the death of a retired spouse, the surviving spouse receives the deceased spouses Social Security retirement benefit if it is greater than the survivors own Social Security retirement benefit. The Census Bureau data show that the average difference between the two benefits is $5,700 a year for same-sex couples in the U.S. (Badgett 58.) But eligibility for social security benefits is based on the marriage law of state where the couple resides at time of application. 42 U.S.C. 416(h)(1)(A)(i).
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make health-care decisions for an incapacitated spouse; exemption from the realty transfer tax; the right to seek damages under workers compensation laws if a spouse dies or is injured; the right to inherit a spouses property automatically if a spouse dies without a will; and access to assistance and support programs for widows and widowers of veterans, firefighters and other first responders. (See Pls. Statement of Uncontested Facts (Facts) 75-94.) Federal protections available to legally married spouses, in addition to social security survivor benefits, include veterans benefits; the ability to jointly file federal income taxes; no tax on spousal employee health insurance benefits;7 and the right provided by the Family Medical Leave Act to take time off of work to care for a spouse without losing your job. Some of these federal protections are not even available to married same-sex couples if they move to or reside in a state like Pennsylvania where their marriage is not recognized. See, e.g., 42 U.S.C. 416(h)(1)(A)(i) (basing eligibility for social security benefits on the marriage law of state where couple resides at time of application); 29 C.F.R. 825.122(b) (same for Family Medical Leave Act). (See Facts 98-100; Carpenter 94-95; Badgett 52, 56, 60, 62.)

A 2007 study shows that the average person receiving domestic partner benefits (as opposed to spousal health insurance benefits) is taxed $1,069 in additional federal income and payroll taxes. (Badgett 54.)

Perhaps even more important than the tangible harms, the Marriage Exclusion injures lesbian and gay couples by denying them a dignity and status of immense import. Windsor, 133 S. Ct. at 2692. Marriage is an esteemed institution and has profound social significance both for the couple that gets married and the family, friends and community that surround them. The terms married and spouse have universally understood meanings that command respect for a couples relationship and the commitment they have made. (Peplau 42.) As Greg Wright put it when talking about his twenty-year relationship with Ron Gebhardtsbauer, [t]he term partner does not adequately convey our love for each other or the level of commitment we have made to each other. (Wright 4.) Christine Donatos mother, Veronica Donato, dream[s] of seeing Christine and Sandy married one day because she understands marriage to be a foundation for family. (V. Donato 5-6.) She worries that unless the law in Pennsylvania changes soon, she will not be able to share Christine and Sandys wedding day with them. (Id. 6.) She is 76 years old and in fragile health and confined to a wheelchair due to multiple sclerosis and, thus, traveling to another state for a wedding would be very difficult. (Id. 7, 9.) The Marriage Exclusion also demeans Plaintiffs and other committed lesbian and gay couples across the Commonwealth by tell[ing] those couples, and all the world that their relationships are unworthy of recognition. Windsor, 133 S.

10

Ct. at 2694. (Peplau 56 (excluding same-sex couples from marriage perpetuates stigma against same-sex couples and lesbian and gay individuals).) When Maureen Hennessey lost her spouse Mary Beth after nearly three decades together, in her time of grief she had to suffer the additional pain of her marriage being treated as meaningless on Mary Beths death certificate. As Maureen described this experience: Before Mary Beth passed away, we made arrangements for her funeral and burial. Mary Beth told the undertaker that she wanted it noted on her death certificate that we were married, and wanted me listed as her surviving spouse. He explained to us that we wouldnt be able to do that because Pennsylvania doesnt recognize me as Mary Beths wife. This upset Mary Beth a lot. But Im not sure she was as upset as I was after she passed when I got to hold that death certificate and see that there was a space for me, but I cant go in it. (Hennessey 12-13.) Instead, Maureen was listed on the death certificate as the informant. (Id. 13.) As Maureen put it, [t]hat sounds like a person who made a telephone call. I want to be recognized as Mary Beths surviving spouse. And I wantjust as she wantedher death certificate to acknowledge that, at the time she passed, she was married. (Id.) The Marriage Exclusion also humiliates the children of lesbian and gay couples and makes it difficult for them to understand the integrity and closeness of their own family and its concord with other families in their community and in

11

their daily lives. Windsor, 133 S. Ct. at 2694. Fernando Chang-Muy described the challenges he and his partner Len Rieser experienced in trying to give their daughter Isabel, now 22, a sense of security of being part of a family: When Isabel was growing up, it was important to Len and me that Isabel have the same sense of security that any other child gets from being part of a loving family. Len and I made a point, when Isabel was in elementary and secondary school, of making sure that her teachers understood that we were a family and that we wanted to be active in the school community just like any other parents. Fortunately, we found school personnel who supported us, as well as supportive health care providers, neighbors, and a supportive religious community. Len and I recognize that, even if we had been able to be married while we were raising Isabel, the process of establishing us as a family still would have had its challenges because there are people who disapprove of relationships like ours. But we feel that if marriage had been available to us, a major barrier to our acceptance and well-being as a family would have been removed. Even now, the availability of marriage would make a significant, positive difference to our life as a family. (Chang-Muy 9-10.) A.W., the teenage daughter of Deb and Susan Whitewood, feels that if her parents marriage were recognized by the Commonwealth, it would help to prove what we already know: that we, a family with two moms, are just like any other family, and [i]t would encourage others to accept my family and treat us with the same respect that my friends families receive. (A.W. 8.) Dawn Plummer and Diana Polson and Sandy Ferlanie and Christine Donato have young children who are beginning to ask why their parents are not married, and

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these parents struggle to answer their childrens questions. (Plummer 16; Polson 5; C. Donato 5.) Dara Raspberry and Helena Miller want their marriage to be recognized in Pennsylvania before their infant daughter is old enough to be aware that the Commonwealth does not consider her family deserving of the same respect given to other families. (Raspberry 18; Miller 5.) These harms experienced by the Plaintiff families and numerous other families in Pennsylvania would end if same-sex couples could marry and have their marriages recognized in Pennsylvania. Other discriminatory aspects of marriage that were once considered essential to the institution, such as the prohibition against interracial marriage and the loss of legal independence for married women, have been discarded one by one by courts and legislatures. Moreover, all of the gender-based distinctions that once existed with respect to the rights and duties within the marital relationship have been removed, and the legal rights and duties of husbands and wives are now identical. History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution. (Cott 16, 17, 21, 63-84, 96, 97, 99.) STATEMENT OF QUESTIONS INVOLVED 1. Whether Pennsylvania law prohibiting same-sex couples from marrying and treating as void the marriages of same-sex couples validly entered into in other jurisdictions violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution?

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2. Whether Pennsylvania law prohibiting same-sex couples from marrying and treating as void the marriages of same-sex couples validly entered into in other jurisdictions violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution? LEGAL STANDARD Rule 56 provides that [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable [fact-finder] could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). ARGUMENT Plaintiffs challenge the Marriage Exclusion under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Heightened scrutiny is warranted for three reasons. First, the Marriage Exclusion burdens the fundamental right to marry protected by the Due Process Clause. Second, the Marriage Exclusion discriminates based on sexual orientation, which is a

14

classification that has all the indicia of suspectness that the Supreme Court has said warrant heightened equal-protection scrutiny. Third, the Marriage Exclusion discriminates based on sex, which triggers heightened equal-protection scrutiny. The Marriage Exclusion cannot survive heightened scrutiny and, indeed, is unconstitutional under any level of scrutiny because it is not even rationally related to the furtherance of any legitimate government interest. Moreover, the Marriage Exclusion cannot stand under any level of scrutiny because no legitimate interest overcomes its purpose and effect to disparage and injure same-sex couples and their families. I. Pennsylvanias Marriage Exclusion Is Subject To Heightened Scrutiny Because It Burdens The Fundamental Right To Marry Protected By The Due Process Clause The guarantee of due process protects individuals from arbitrary governmental intrusion into fundamental rights. See, e.g., Troxel v. Granville, 530 U.S. 57, 64 (2000). Under the Due Process Clause, when legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Zablocki v. Redhail, 434 U.S. 374, 388 (1978). As every federal court to address the question since Windsor has agreed, denying same-sex couples the fundamental right to marry does not comport with these requirements. Bostic, 2014 WL 561978; De Leon, 2014 WL 715741;

15

Kitchen, 961 F. Supp. 2d 1181; Obergefell, 962 F. Supp. 2d 968; see also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 995 (N.D. Cal. 2010), affd on other grounds sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded on other grounds sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (dismissing appeal); In re Marriage Cases, 183 P.3d at 429; Goodridge, 798 N.E.2d at 968. A. The freedom to marry is a fundamental right.

It is beyond dispute that the freedom to marry is a fundamental right protected by the Due Process Clause. See, e.g., Turner v. Safley, 482 U.S. 78, 95 (1987) ([T]he decision to marry is a fundamental right); Zablocki, 434 U.S. at 384 (The right to marry is of fundamental importance for all individuals.); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.); Loving v. Virginia, 388 U.S. 1, 12 (1967) (The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.). The fundamental right to marry belongs to the individual and protects each individuals choice of whom to marry. Loving, 388 U.S. at 12 (Under our Constitution, the freedom to marry, or not marry, a person of another race resides

16

with the individual and cannot be infringed by the State.); Carey v. Population Servs., 431 U.S. 678, 684-85 (1977) ([A]mong the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage . . . .); Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) ([T]he Constitution undoubtedly imposes constraints on the States power to control the selection of ones spouse. . . .). B. The scope of a fundamental right under the Due Process Clause does not depend on who has been permitted to exercise that right in the past.

The fact that same-sex couples have long been excluded from marrying is neither a reason to continue that discrimination nor a basis for concluding that same-sex couples do not fall within the right to marry. The Supreme Court has never defined the right to marry by reference to those permitted to exercise that right. Its decisions refer to the fundamental right to marry, see Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; Zablocki, 434 U.S. at 383-86; not the right to interracial marriage, the right to inmate marriage, or the right of people owing child support to marry. See In re Marriage Cases, 183 P.3d at 421 n.33 (Turner did not characterize the constitutional right at issue as the right to inmate marriage.); Kitchen, 961 F. Supp. 2d at 1202 (the Court in Loving did not declar[e] a new right to interracial marriage).

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Similarly, in Lawrence v. Texas, 539 U.S. 558 (2003), the Court held that the liberty of persons (including same-sex couples) to form personal and intimate relationships falls within the Fourteenth Amendments protection of liberty, notwithstanding the historical existence of sodomy laws prohibiting same-sex intimacy. The Court explained that the error of its decision in Bowers v. Hardwick, 478 U.S. 186 (1986), was that, in Bowers, it failed to appreciate the extent of the liberty at stake by erroneously focusing on whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy. Lawrence, 539 U.S at 566-67. The Court explained that [o]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education and [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. Id. at 574. The same principle applies here. Plaintiffs do not seek a new right to samesex marriage, but rather seek to exercise the same right to marry enjoyed by other couples. See Kitchen, 961 F. Supp. 2d at 1203 (plaintiffs challenging exclusion of same-sex couples from marriage are seeking access to an existing right, not declaration of a new right). The fundamental right to marry is unquestionably deeply rooted in this Nations history and tradition for purposes of constitutional protection even though certain individuals, including gay couples, have historically

18

been refused access to that right. While courts use history and tradition to identify the interests that due process protects, history does not define which Americans may exercise a right once that right is recognized. This critical distinctionthat history guides what fundamental rights due process protects, not who may exercise those rightsis central to due process jurisprudence. [F]undamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. In re Marriage Cases, 183 P.3d at 430 (quoting Hernandez v. Robles, 855 N.E.2d 1, 23 (N.Y. 2006) (Kaye, C.J., dissenting)). When the Court held in Loving that anti-miscegenation laws violated the fundamental right to marry, it did so despite a long historical tradition of excluding interracial couples from the institution of marriage. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847-48 (1992) ([I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving . . . .). As the Court later observed, neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Lawrence, 539 U.S. at 577-78.

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C.

Same-sex couples, like opposite-sex couples, bring to marriage the commitment that the fundamental right of marriage protects.

It is undisputed that same-sex couples make the same commitment to one another as opposite-sex couples and are as willing and able to assume the obligations of marriage. (Peplau 33-37; see also, e.g., D. Whitewood 9; S. Whitewood 5; L. Hurdle 4; Plummer 9; Gillem 8-9; Lobur 6, 7; Wright 5; Hennessey 10-11.) See Kitchen, 961 F. Supp. 2d at 1200 (same-sex couples are like other couples with respect to the inner attributes of marriage that form the core justifications for why the Constitution protects this fundamental human right); Perry, 704 F. Supp. 2d at 993 ([S]ame-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage.). While there was a time when there were gender-based distinctions in the legal relationships of husbands and wives within marriage, it is undisputed that these distinctions have all been removed such that husbands and wives now have the same legal obligations and protections. (Cott 63-79.) The gender-based eligibility requirement maintained by Pennsylvania is no more essential to marriage than the other long discarded gender-based rules. (Id. 96, 97.) Some opponents of marriage for same-sex couples have argued that samesex couples are not entitled to access the fundamental right to marry because they cannot biologically procreate together. But the notion that biological procreation is

20

essential to the constitutionally protected marital relationship is inconsistent with the Supreme Courts decision in Turner, 482 U.S. at 78, striking down prison regulations restricting marriage by prisoners. Rather than dismissing the claim in that case because the union between an inmate and an unincarcerated person would lack sexual intimacy and, thus, potential for biological procreation, the Court unanimously found that incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by incarceration and are sufficient to form a constitutionally protected marital relationship in the prison context. Id. at 96. Turner thus makes clear that the fundamental right to marry does not vanish if the relationship cannot lead to biological procreation. Moreover, in striking down restrictions on the use of contraception by married couples, the Supreme Court recognized that marriage does not exist merely for the purpose of procreation; rather, [m]arriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. Griswold v. Connecticut, 381 U.S. 479, 486 (1965); see also Lawrence, 539 U.S. at 567 ([I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.). The ability to procreate . . . is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. Kitchen, 961 F. Supp. 2d at 1201. A contrary view of marriage demeans the dignity not just of same-sex couples, but of the many

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opposite-sex couples who are unable to reproduce or who choose not to have children. Id. Any argument seeking to attach the fundamental right to marry to an ability of a couple to procreate is also contrary to Pennsylvanias historical and present laws governing eligibility for marriage. Neither Pennsylvania nor any other state has ever conditioned the right to marry on the ability to procreate. (Cott 41, 42.) See In re Marriage Cases, 183 P.3d at 432 ([T]he right to marry never has been limited to those who plan or desire to have children.). Of course, several of the Plaintiff couples and thousands of other lesbian and gay couples in Pennsylvania are in fact raising children, and they seek the benefits of marriage in large part for their children. (E.g., Plummer 16; D. Whitewood 14; Raspberry 18; C. Donato 5; see also Lamb 48.) See Kitchen, 961 F. Supp. 2d at 1202 (in rejecting argument that the inability to procreate excludes same-sex couples from the right to marry, observing that [l]ike opposite-sex couples, same-sex couples may decide to marry partly or primarily for the benefits and support that marriage can provide to the children the couple is raising or plans to raise.). But the absence of children, biological or otherwise, does not vitiate the basic liberty and fundamental right to marry all people enjoy.

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D.

The Marriage Exclusion burdens Plaintiffs fundamental right to marry by prohibiting them from marrying in Pennsylvania and treating as void the marriages of those who married in other states.

The exclusion of same-sex couples from marrying clearly burdens the fundamental right to marry protected by the Due Process Clause. See Bostic, 2014 WL 561978, at *11; De Leon, 2014 WL 715741, at * 19; Kitchen, 961 F. Supp. 2d at 1200; Perry, 704 F. Supp. 2d at 995; In re Marriage Cases, 183 P.3d at 429; Goodridge, 798 N.E.2d at 968. In addition, the Plaintiffs who are already married have a fundamental liberty interest in the legal recognition of their marriages in Pennsylvania. See DeLeon, 2014 WL 715741, at *23 ([B]y declaring existing, lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process.); Obergefell, 962 F. Supp. 2d at 978 (recognizing a same-sex couples right to remain married as a fundamental liberty interest appropriately protected by the Due Process Clause).8 Section 2 of the federal Defense of Marriage Act (DOMA), 28 U.S.C.A. 1738C, which provides that no state shall be required to give effect to marriages from other states between persons of the same sex, does not affect the analysis of Plaintiffs claims regarding marriage recognition because Section 2 is an entirely permissive federal law that does not mandate any action by the states; [t]he injury of non-recognition stems exclusively from state law, not the federal DOMA. Bishop, 962 F. Supp. 2d at 12.
8

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Kath and Heather Poehler are among the plaintiffs who are already married. (H. Poehler 4; K. Poehler 5.) They were recognized and respected as the married couple that they are when they lived in Massachusetts, but when they moved to Pennsylvania for a job opportunity, they were effectively unmarried against their wishes. (H. Poehler 5.) As Heather Poehler described this experience: Its stressful that our marital status changes when we cross state lines. Recently, we went to Baltimore for a weekend and while we were waiting for our table at dinner, we realized we didnt know whether we were considered married in Maryland. We Googled it, and were happy to learn that Maryland does recognize our marriage. But this just underscored that Pennsylvania doesnt, and that we have to leave our home state to be recognized again as the married couple that we are. (Id. 6.) The Commonwealth cannot sever this legal family relationship and those of Edwin Hill and David Palmer, Helena Miller and Dara Raspberry, Marla Cattermole and Julie Lobur, Deb and Susan Whitewood, Angela Gillem and Gail Lloyd, and Ron Gebhardtsbauer and Greg Wright, without demonstrating an important justification for doing so. See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (We have little doubt that the Due Process Clause would be offended [i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and

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for the sole reason that to do so was thought to be in the childrens best interest.) (internal citations omitted); Santosky v. Kramer, 455 U.S. 745 (1982) (demanding clear and convincing evidence to support termination of parental rights). In M.L.B. v. S.L.J., the Supreme Court made clear that the special scrutiny afforded when the government seeks to end a parent-child relationship applies to the states usurpation, disregard, or disrespect of a marriage as well. 519 U.S. 102, 116-17 (1996) (internal citations omitted) (Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the States unwarranted usurpation, disregard, or disrespect. . . . M.L.B.s case, involving the States authority to sever permanently a parent-child bond, demands the close consideration the Court has long required when a family association so undeniably important is at stake.); see Obergefell, 962 F. Supp. 2d at 979 (noting that a legal familial relationship is unilaterally terminated by Ohios marriage recognition bans, without any due process) (emphasis in original). As discussed in Section IV, infra, the Marriage Exclusion cannot even survive rational basis review, let alone the heightened scrutiny required when laws burden fundamental rights protected by the Due Process Clause.

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II.

Pennsylvanias Marriage Exclusion Is Subject To Heightened Scrutiny Because It Discriminates Based On Sexual Orientation. The Supreme Court has treated government classifications as suspect or

quasi-suspect when they generally provide[] no sensible ground for differential treatment, City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985), and are likely to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). Such classifications must be approached with skepticism and subjected to heightened scrutiny in order to smoke out whether they are being used improperly. Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Thus, when the government engages in such classification, it bears the burden of proving the statutes constitutionality, and must show, at a minimum, that the classification is substantially related to an important governmental interest. Cf. United States v. Virginia, 518 U.S. 515, 532-33 (1996). Neither the Supreme Court nor the Third Circuit has addressed the question of whether laws that classify based on sexual orientation9 are suspect or quasi-

The exclusion of same-sex couples from marriage clearly classifies based on sexual orientation. The Supreme Court has rejected efforts to deny that laws targeting conduct closely associated with being gay or lesbian are laws classifying based on sexual orientation. Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2990 (2010) (refusing to distinguish between status and conduct with respect to gay people); Lawrence, 539 U.S. at 583 (OConnor, J., concurring) (While it is true that the [criminal sodomy] law applies only to conduct, the conduct targeted
(continued...) 26

suspect and, thus, trigger some form of heightened equal protection scrutiny. But analysis of the factors that the Supreme Court considers in determining whether heightened equal protection scrutiny is warranted mandates the application of such scrutiny to laws that disadvantage people based on their sexual orientation. In a long line of cases, the Supreme Court has identified the following criteria to determine whether laws that discriminate against a particular class of people trigger heightened scrutiny: A) whether the class has been historically subjected to discrimination; B) whether the class has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless. Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (internal quotation marks and citations omitted). Of these considerations, the first two are the most important. See id. (Immutability and lack of political power are not strictly necessary factors to identify a suspect class.).
________________________ (continued...)

by this law is conduct that is closely associated with being homosexual, so that [t]hose harmed by this law are people who have a same-sex sexual orientation.); see also In Re Marriage Cases, 183 P.3d 384, 440-41 (Cal. 2008) (ban on marriage for same-sex couples prescribes distinct treatment on the basis of sexual orientation); cf. Bray v. Alexandria Womens Health Clinic, 506 U.S. 263, 270 (1993) (A tax on wearing yarmulkes is a tax on Jews.).

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As federal and state courts have recognized, faithful application of these factors leads to the inescapable conclusion that sexual orientation classifications must be recognized as suspect or quasi-suspect and subjected to heightened scrutiny. See, e.g., Windsor, 699 F.3d at 181-85; De Leon, 2014 WL 715741, at *14; Obergefell, 962 F. Supp. 2d at 987-91; Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 310-33 (D. Conn. 2012); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 985-90 (N.D. Cal. 2012); Perry, 704 F. Supp. 2d at 997; Griego, 316 P.3d at 880-84; Varnum, 763 N.W.2d at 885-96; In re Marriage Cases, 183 P.3d at 441-44; Kerrigan, 957 A.2d at 425-31; see also SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-84 (9th Cir. 2014) (finding heightened scrutiny applicable to sexual orientation classification without examining the four factors).10

Prior to the Supreme Courts decision in Lawrence, 539 U.S. 558, overruling Bowers, 478 U.S. 186, a number of federal circuits rejected sexual orientation as a suspect classification based on Bowers. See, e.g., Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) (If the [Bowers] Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.). However, by overruling Bowers, the Supreme Court in Lawrence necessarily abrogated decisions from other circuit courts that relied on Bowers to foreclose the possibility of heightened scrutiny for sexual orientation classifications. See Pedersen, 881 F. Supp. 2d at 312 ([T]he Supreme Courts holding in Lawrence remov[ed] the precedential underpinnings of the federal case
(continued...) 28

10

History of discrimination. Lesbian and gay people have suffered a long and painful history of discrimination. The uncontested expert testimony shows that through much of the twentieth century, in particular, lesbians and gay men were subjected to penal laws that condemned their intimate relationships as a crime; police raids that exposed them to risk of arrest if they socialized in public; censorship codes that prohibited their depiction on the stage, in the movies, and on television; federal and state policies prohibiting their employment in government jobs; their exclusion from military service; demonization in the media as perverts and predators of children; and brutal violence. (See generally Chauncey 21104.) These forms of discrimination took place across the United States, including in Pennsylvania. For example, by 1950, the Philadelphia police had a morals squad that arrested about 200 gay men per month. The Philadelphia police also raided bars, coffee shops, and other meeting places where gay people gathered. (Id. 56.) Many of these expressly discriminatory laws and policies have ended, but lesbian and gay people continue to live with the legacy of this discrimination, which created and reinforced the belief that they are an inferior class to be shunned
________________________ (continued...)

law supporting the defendants claim that gay persons are not a [suspect or] quasisuspect class.) (citations omitted); accord Golinski, 824 F. Supp. 2d at 984.

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by other Americans. (Id. 7; see also Peplau 55 (In American society today, gay men, lesbians, and bisexuals continue to be a highly stigmatized minority group.).) Indeed, public officials in Pennsylvania have continued to demonize and express their antipathy towards lesbian and gay citizens of the Commonwealth. During the 1990 floor debate in the Pennsylvania House of Representatives over a bill that would have extended hate crime protection to include sexual orientation, state legislators condemned homosexuality as a perversion and a danger to society. (Chauncey 89.) See 1990 Pa. Legis. J. (House), at 1202, 1206, 1209, 1210 (June 26, 1990), PX-49. As one legislator put it: These people whom we are going to give this privileged minority status to are not simply the gentlemen who like to walk around holding hands. They do have an agenda. Their agenda is to turn our society upside down. . . . This bill will turn our society upside down. This bill will require us to remove the slogan America Starts Here to America Ends Here, because sodomy has always resulted in the collapse of a civilization. Id. at 1206. Another legislator said that the bill promoted sexual perversion and would lead to the further deterioration of the traditional family and its values. Id. at 1209. During the 2006 debates over a proposed amendment to the state constitution to prohibit marriage for same-sex couples, several Pennsylvania legislators warned that failing to exclude same-sex couples from marriage would lead to the legalization of incest and bestiality. (Chauncey 103.) In 2009, a state

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senator called same-sex relationships dysfunctional and equated marriage for same-sex couples with pedophilia. (Id.) During his 2010 gubernatorial campaign, then Attorney General Thomas W. Corbett stated that a Constitutional amendment would help safeguard marriage against an alternative agenda. (Id.) See Pennsylvania Primary Election, 25 Viewpoint Newsletter of the Pa. Catholic Conference 1, at 5 (May 18, 2010), PX-59. In June 2013, several state lawmakers prevented Representative Brian K. Sims, an openly gay lawmaker from Philadelphia, from speaking on the House floor about the U.S. Supreme Courts decision in Windsor v. United States. (Chauncey 103.) See Mollie Reilly, Brian Sims, Pennsylvania Lawmaker, Silenced on DOMA by Colleagues Citing Gods Law, Huffington Post (June 27, 2013), PX-60. One of the lawmakers later explained that he did so because I did not believe that as a member of that body that I should allow someone to make comments such as he was preparing to make that ultimately were just open rebellion against what the word of God has said, what God has said, and just open rebellion against Gods law. (Id.) And just last October, when Governor Corbett was asked about arguments his lawyers had made in opposing a lawsuit by samesex couples seeking the right to marry, he justified the Marriage Exclusion by equating the marriage of a gay couple to the marriage of a brother and sister. (Chauncey 104.) See Interview with Governor Thomas Corbett, WHP-TV (Oct.

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4, 2013), PX-62; John L. Micek, Corbett Apologizes For Remarks About Same-Sex Couples, PennLive (Oct. 4, 2013), PX-63. As the Second Circuit concluded in Windsor, 699 F.3d at 182, [i]t is easy to conclude that homosexuals have suffered a history of discrimination; this fact is not much in debate. Ability to perform in or contribute to society. A persons sexual orientation does not bear any relationship to his or her ability to perform in or contribute to society. The uncontested expert testimony shows that it is wellestablished that homosexuality is a normal expression of human sexuality, it is not a mental illness, and being gay or lesbian has no inherent association with a persons ability to lead a happy, healthy, and productive life or to contribute to society. (Peplau 29-32.) See, e.g., Windsor, 699 F.3d at 182 (There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individuals ability to contribute to society, at least in some respect. But homosexuality is not one of them.); Varnum, 763 N.W.2d at 890 (Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a persons sexual orientation to be indicative of the persons general ability to contribute to society.). Immutable or distinguishing characteristic. Sexual orientation is an obvious, immutable, or distinguishing aspect of personal identity. See Windsor,

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699 F.3d at 181. As the Second Circuit observed, there is no doubt that sexual orientation is a distinguishing characteristic that calls down discrimination when it is manifest. Id. at 183. There is no requirement that a characteristic be immutable in a literal sense in order to trigger heightened scrutiny. Heightened scrutiny applies to classifications based on alienage and illegitimacy even though [a]lienage and illegitimacy are actually subject to change. Id. at 183 n.4; see Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the argument that alienage did not deserve strict scrutiny because it was mutable). But even if literal immutability were required, the uncontested expert testimony shows that sexual orientation is not something that can be changed through religious or psychotherapy interventions. Indeed, no major mental health professional organization has approved interventions to attempt to change sexual orientation and organizations including the American Psychiatric Association, the American Psychological Association, the American Counseling Association, the National Association of Social Workers and the American Academy of Pediatrics, have adopted policy statements cautioning against such treatments. (Peplau 26-28.) See, e.g., Golinski, 824 F. Supp. 2d at 986 ([T]he consensus in the scientific community is that sexual orientation is an immutable characteristic.); Perry, 704 F. Supp. 2d at 966 (No credible evidence supports a finding that an individual

33

may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.). Moreover, as numerous courts have recognized, sexual orientation is so fundamental to a persons identity that one ought not be forced to choose between ones sexual orientation and ones rights as an individualeven if such a choice could be made. See Pedersen, 881 F. Supp. 2d at 325; Golinski, 824 F. Supp. 2d at 987; In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 438; Varnum, 763 N.W.2d at 892-93; Griego, 316 P.3d at 884. Insufficient political power to protect against discrimination. Gay people are a minority (Peplau 22, 55) and lack sufficient political power to adequately protect themselves from the discriminatory wishes of the majoritarian public. Windsor, 699 F.3d at 185. Gay people remain a highly stigmatized minority group. (Peplau 55.) A legacy of the long history of discrimination against lesbians and gay men has been the inability to enact legislative protections against discrimination and prevent the passage of discriminatory laws. (Chauncey 9.) Moreover, gay people have been particularly vulnerable to discriminatory ballot initiatives to roll back protections they have secured in the legislature or to prevent such protections from ever being extended. (Id. 74, 76, 97, 100-101.) See Griego, 316 P.3d at 883.

34

In analyzing this factor, [t]he question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination. Windsor, 699 F.3d at 184. Recent advances for gay people pale in comparison to the political progress of women at the time that classifications based on sex were first recognized as quasi-suspect. By that time, the Nineteenth Amendment had been the law for two generations, and Congress had already passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, both of which protect women from discrimination in the workplace. Frontiero v. Richardson, 411 U.S. 677, 687-88 (1973) (plurality). In contrast, there is still no express federal ban on sexual orientation discrimination in employment, housing, or public accommodations (Chauncey 80), and more than half of the states, including Pennsylvania, have no laws providing such protections either (id. 77). See Pedersen, 881 F. Supp. 2d at 326-27; Golinski, 824 F. Supp. 2d at 988-89; Griego, 316 P.3d at 883. As political power has been defined by the Supreme Court for purposes of heightened scrutiny analysis, gay people do not have it. Obergefell, 962 F. Supp. 2d at 990. * * *

In short, sexual orientation classifications demand heightened scrutiny under not just the two required factors but under all four factors that the Supreme Court

35

has used to identify suspect or quasi-suspect classifications. This Court should apply at least the intermediate scrutiny applied to quasi-suspect classifications and make clear that it will no longer presume that government discrimination based on sexual orientation is constitutional. Continuing to do so would perpetuate historical patterns of discrimination and demean the dignity and worth of gay people to be judged according to their individual merits and not according to their sexual orientation. Cf. Rice v. Cayetano, 528 U.S. 495, 517 (2000). III. Pennsylvanias Marriage Exclusion Is Subject To Heightened Scrutiny Because It Discriminates Based On Sex. [A]ll gender-based classifications today warrant heightened scrutiny. United States v. Virginia, 518 U.S. at 555 (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994)). Pennsylvanias Marriage Exclusion contains explicit sex-based classifications: a person may marry only if the persons sex is different from that of the persons intended spouse. Like any other sex-based classification, the Marriage Exclusion must be tested through the framework of heightened scrutiny. See Kitchen, 961 F. Supp. 2d at 1206; Golinski, 824 F. Supp. 2d at 982 n. 4; Baehr v. Lewin, 852 P.2d 44, 64 (Haw. 1993). The fact that Pennsylvanias restriction on marriage equally denies men and women the right to marry a person of the same sex does not make the restriction any less invidious. In Loving, the Supreme Court rejected the notion that the mere equal application of a statute containing racial classifications is enough to

36

remove the classifications from the Fourteenth Amendments proscription of all invidious racial discriminations. Loving, 388 U.S. at 8. Applying the same logic used in Loving, the fact of equal application to both men and women does not immunize [Pennsylvanias Marriage Exclusion] from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex. Kitchen, 961 F. Supp. 2d. at 1206.11 Because Pennsylvanias Marriage Exclusion explicitly classifies based on sex, it cannot survive unless the Commonwealth can demonstrate an exceedingly persuasive justification. United States v. Virginia, 518 U.S. at 531. This means that [t]he State must show at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Id. at 533. IV. Pennsylvanias Marriage Exclusion Is Unconstitutional Under Any Level Of Scrutiny. When the requisite heightened scrutiny is applied, it is clear that Defendants cannot carry their burden to demonstrate that excluding same-sex couples from The anti-miscegenation law in Loving also applied unequally to protect the racial integrity of white people but not other racial groups. But the Court made clear that the racial classifications were unconstitutional even assuming an evenhanded state purpose to protect the integrity of all races. Loving, 388 U.S. at 11 n.11; see also J.E.B., 511 U.S. at 140-42 (holding that both male and female jurors have right to nondiscriminatory juror selection even though such discrimination does not favor either men or women as a group).
11

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marriage is at least substantially related to an important governmental interest. Moreover, in an unbroken line of cases since Windsor, several federal courts have now concluded that even under the most deferential standard of review, the exclusion of same-sex couples from marriage violates the Equal Protection Clause. See DeBoer, 2014 WL 1100794, at *11-15; De Leon, 2014 WL 715741, at *14-18; Bostic, 2014 WL 561978, at *14-22; Bourke, 2014 WL 556729, at *7-8; Bishop, 961 F. Supp. 2d 1252; Obergefell, 962 F. Supp. 2d at 983-86; Kitchen, 961 F. Supp. 2d at 1205-06; see also Perry, 704 F. Supp. 2d at 997-1003. In their defense of the Marriage Exclusion, Defendants have offered four rationales: (a) the promotion of procreation (b) child rearing and the well-being of children (c) adverse economic impacts for the Commonwealth and Pennsylvania businesses (d) tradition (Defs. Resp. to Pls. First Set of Interrogs., PX-35.) In support of these rationales, they have offered only the statements contained in the legislative record when the Marriage Exclusion was enacted by the legislature. (Id.) They have not offered any fact or expert witnesses to support these rationales. None of these rationales can withstand even rational basis review.

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Some of the asserted rationales are not even legitimate purposes for disadvantaging a group of people. Others are legitimate purposes, but the Marriage Exclusion has no rational relationship to their furtherance. [E]ven in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the relation between the classification adopted and the object to be attained. Romer v. Evans, 517 U.S. 620, 632 (1996); see also Cleburne, 473 U.S. at 446 (The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.). It is this search for the link between classification and objective that gives substance to the Equal Protection Clause. Romer, 517 U.S. at 632. [R]equiring that the classification bear a rational relationship to an independent and legitimate legislative end . . . ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Id. at 633; accord Windsor, 133 S. Ct. at 2693; U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973). A. The Marriage Exclusion does not rationally further any government interest related to procreation or childrens wellbeing.

The Defendants assert government interests both in the promotion of procreation and child rearing and the well-being of children. The only

39

statements contained in the legislative record arguably related in any way to these asserted interests are the following: The amendment is an expression of Pennsylvanias . . . support of the traditional family unit. 1996 Pa. Legis. J. (House), at 2017, PX45. In 1885, the Supreme Court felt so strongly that marriage was to be protected that it declared it as a requirement for admission of new states to the Union. Any prospective state, the court said, had to have law resting on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony . . . . Id. at 2022. I believe that it is imperative that we in Pennsylvania should stand up for traditional marriage for the benefit of families and children in the Commonwealth and our future. Id. This is a vote about family values . . . . Id. None of these statements offers any explanation of how the exclusion of same-sex couples from marriage advances the governments interest in procreation or childrearing and the well-being of children. However, a written statement by the Hawaii Catholic Conference, which was submitted for the record by Representative Stern, makes the following assertions: [C]hildren enter society through the union of a man and a woman, not just a sperm and an egg. This is obvious! A sperm bank is not the equivalent of a real father. The people of Hawaii know that our children are our future. If children are not a compelling interest of the State, what is? Id. at 2023. [A] committed, faithful and lifelong relationship between a woman and a man is the best environment for children. Every child deserves a stable home with her real mother and father. Id.

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 [A] formal commitment between a man and a woman encourages them to take joint responsibility for their children and for each other. . . . The law of marriage connects sex, commitment, and children. It holds parents responsible for supporting and educating their children, both within marriage and even if a marriage breaks down. If the law redefines marriage and sends a message that marriage has no relationship to sex, commitment, or children, it will only add to our current troubles, and undermine what health still remains. Id. These statements offered by Representative Stern boil down to the following two ideas: (i) only heterosexual unions result in procreation and marriage causes heterosexuals to be responsible for supporting the children who result from their sexual relationships; and (ii) the best environment for children is to be raised by their biological mother and father.12 Such rationales, often referred to in other cases as the responsible procreation and optimal childrearing rationales, respectively, have failed rational basis review in every court to consider them post-Windsor. Bourke, 2014 WL 556729, at *8; see DeBoer, 2014 WL 1100794, at *12-13; DeLeon, 2014 WL 715741, at *14-16; Bostic, 2014 WL 561978, at *17-20; Bishop, 962 F. Supp. 2d at 1290-92; Obergefell, 962 F. Supp. 2d at 982; Kitchen, 961 F. Supp. 2d at 1201-02;

Plaintiffs infer from the context that real mother and father was intended to be a reference to biological parents, as distinguished from adoptive parents and other non-biological parents.

12

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see also Perry, 704 F. Supp. 2d at 999-1000 (rejecting these rationales).13 This is because the exclusion of same-sex couples from marriage does not conceivably further these interests in any way. Responsible procreation. The exclusion of same-sex couples from marriage does not rationally further the asserted interest in promoting procreation, responsible or otherwise. There is no logical basis to think that excluding same-sex couples from marriage will affect procreative activity of heterosexual couples. See DeLeon, 2014 WL 715741, at *16 (Same-sex marriage does not make it more or less likely that heterosexuals will marry and engage in activities that can lead to procreation.); accord Bishop, 962 F. Supp. 2d at 1291; Pedersen, 881 F. Supp. 2d at 340-41; Golinski, 824 F. Supp. 2d at 997-98. It is even more farfetched to imagine that voiding marriages performed in states outside of Pennsylvania will have any such effects. And of course same-sex couples also have children through assisted reproduction or adoption. (Lamb 47.) There is

The Bipartisan Legal Advisory Group defending the federal Defense of Marriage Act (DOMA) in Windsor asserted these same purported governmental interests related to procreation and childrens well-being. Merits Br. of Bipartisan Legal Advisory Group, United States v. Windsor, 2013 WL 267026, at *21 (2013) (asserting the unique relationship between marriage and procreation and foster[ing] relationships in which children are raised by both of their biological parents). The Supreme Court necessarily rejected those arguments when it held that no legitimate purpose could justify the inequality that DOMA imposed on same-sex couples and their families. Windsor, 133 S. Ct. at 2696.

13

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simply no rational relationship between the exclusion of same-sex couples from marriage and an interest in promoting procreation. To the extent the Defendants are asserting an interest in promoting responsible procreation by heterosexual couples (i.e., procreation within the context of the commitment and stability of marriage), there is still no logical connection between the Marriage Exclusion and this interest. The exclusion of same-sex couples from marriage does nothing to incentivize heterosexual couples to marry. All of the benefits of marriage for heterosexual couples under Pennsylvania law exist independent of the Marriage Exclusion and will remain if it is struck down. See Bishop, 962 F. Supp. 2d at 1291 (Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.); Perry v. Brown, 671 F.3d 1052, 1088 (9th Cir. 2012) (There is no rational reason to think that taking away the designation of marriage from same-sex couples would advance the goal of encouraging Californias opposite-sex couples to procreate more responsibly.), vacated and remanded on other grounds sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (dismissing appeal); accord De Leon, 2014 WL 715741, at *16; Bourke, 2014 WL 556729, at *10; Kitchen, 961 F. Supp. 2d at 1201; Golinski, 824 F. Supp. 2d at 998.

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Moreover, same-sex couples have children too, and the government has just as strong an interest in encouraging that such procreation and child-rearing take place in the stable context of marriage. The reality is that same-sex couples, while not able to naturally procreate, can and do have children by other means, and, [i]f a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal. Bishop, 962 F. Supp. 2d at 1292; In re Marriage Cases, 183 P.3d at 433 ([A] stable two-parent family relationship, supported by the states official recognition and protection, is equally as important for the numerous children . . . who are being raised by same-sex couples as for those children being raised by opposite-sex couples (whether they are biological parents or adoptive parents).); accord De Leon, 2014 WL 715741, at *16. In any event, Pennsylvanias marriage laws do not classify based on whether or not couples are able to or choose to procreate (biologically or otherwise); they classify based on the sex of the partners regardless of their procreative abilities and interests. (Cott 41-42.) See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) ([W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising [t]he liberty protected by the Constitution? Surely not the encouragement of procreation, since the sterile and the elderly are

44

allowed to marry. (internal citation omitted)); Bourke, 2014 WL 556729, at *8 (Kentucky does not require proof of procreative ability to have an out of state marriage recognized. The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds.); DeBoer, 2014 WL 1100794, at *13 (The prerequisites for obtaining a marriage license under Michigan law do not include the ability to have children . . . .); Bishop, 962 F. Supp. 2d at 1293 (noting that the infertile, the elderly, and those who simply do not wish to ever procreate are permitted to marry in Oklahoma). Pennsylvania does not condition the right to marry on procreative ability. It cannot selectively rely on procreation only when it comes to same-sex couples. See Cleburne, 473 U.S. at 450 (asserted concern about avoiding traffic congestion did not constitute rational basis for requirement of a special use permit for home for developmentally disabled adults because this concern fail[s] to explain why apartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area without a permit); see also Ry. Express Agency v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring) ([T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.); Cruzan v. Dir., Mo. Dept of Health, 497 U.S. 261, 300

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(1990) (Scalia, J., concurring) (the Equal Protection Clause requires the democratic majority to accept for themselves and their loved ones what they impose on others). Optimal child-rearing. Even if there were any factual basis for the belief that children are best off if raised in families headed by a biological mother and father (and as discussed below, there is not), there is no rational connection between the exclusion of same-sex couples from marrying and an interest in children being raised in such families.14 Pennsylvanias Marriage Exclusion does not prevent lesbian and gay couples from having children. According to the U.S. Census, there are 3,500 same-sex couples raising children in Pennsylvania. (Lamb

Moreover, the assertion that children are best off with a male and a female parent, far from constituting a valid defense, reflects the very stereotype the law condemns. J.E.B., 511 U.S. at 138 (quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)). The Supreme Court has made clear that gender classifications cannot be based on or validated by fixed notions concerning the roles and abilities of males and females. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982); see also United States v. Virginia, 518 U.S. at 533. And in the context of parenting responsibilities, the Court has rejected the notion of any universal difference between maternal and paternal relations. Caban v. Mohammed, 441 U.S. 380, 388-89 (1979); see also Califano v. Westcott, 443 U.S. 76, 89 (1979) (finding unconstitutional a federal statute providing for support in event of fathers unemployment, but not mothers unemployment; describing measure as based on stereotypes that father is principal provider while the mother is the center of home and family life). Because such a rationale rests on sex stereotypes regarding parental roles of men and women, this is an additional reason heightened scrutiny is warranted.

14

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 47.)15 And as discussed above, excluding same-sex couples from marrying does not cause more children to be born into families headed by heterosexual couples. DeBoer, 2014 WL 1100794, at *13 (Prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.). Thus, even if it were rational for legislators to speculate that children raised by heterosexual couples are better off than children raised by gay or lesbian couples, which it is not, there is simply no rational connection between the [exclusion of same-sex couples from marriage] and the asserted goal. Obergefell, 962 F. Supp. 2d at 994 (emphasis in original); accord DeBoer, 2014 WL 1100794, at *13; De Leon, 2014 WL 715741, at *16; Bostic, 2014 WL 561978, at * 17-20; Bourke, 2014 WL 556729, at *8; Bishop, 962 F. Supp. 2d at 1291; Kitchen, 961 F. Supp. 2d at 1205.

To the extent that Pennsylvanias Marriage Exclusion denies children of same-sex couples the family security that comes with marriage as a way to attempt (albeit irrationally) to deter other same-sex couples from having children, the Supreme Court has invalidated similar attempts to incentivize parents by punishing children as illogical and unjust. Plyler, 457 U.S. at 220. And, any law adopted with the purpose of burdening gay peoples ability to procreate would also face heightened scrutiny for implicating the fundamental right to decide whether to bear or beget a child. Casey, 505 U.S. at 851 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)); see Pedersen, 881 F. Supp. 2d at 341.

15

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The only effect the [Marriage Exclusion has] on childrens well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married. Obergefell, 962 F. Supp. 2d at 994-95; see also Goodridge, 798 N.E.2d at 964 (Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure in which children will be reared, educated, and socialized.) (internal quotation marks omitted). (See Lamb 48 (Marriage can yield important benefits for children and families and [a]llowing same-sex couples to have equal access to those benefits afforded through marriage is in the best interests of the children in these families.).) Indeed, Justice Kennedy explained [in Windsor] that it was the governments failure to recognize same-sex marriages that harmed children, not having married parents who happened to be of the same sex. Bourke, 2014 WL 556729, at *8; see also Kitchen, 961 F. Supp. 2d at 1212-13 (If anything, [Utahs marriage ban] detracts from the States goal of promoting optimal environments for children, in part by den[ying] the families of [children of same-sex couples] a panoply of benefits that the State and the federal government offer to families who are legally wed.); accord Bostic, 2014 WL 561978, at *18.

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Moreover, like the federal DOMA invalidated in Windsor, Pennsylvanias Marriage Exclusion humiliates the children now being raised by same-sex couples and 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; see also Bostic, 2014 WL 561978, at *18 (the marriage exclusion has the effect of needlessly stigmatizing and humiliating children who are being raised by samesex couples, which betrays rather than serves an interest in child welfare). As Deb and Susan Whitewoods daughter A.W. has explained it, if her parents marriage were recognized by the Commonwealth, it would help to prove what we already know: that we, a family with two moms, are just like any other family, and [i]t would encourage others to accept my family and treat us with the same respect that my friends families receive. (A.W. 8.) See also pages 11-13, supra (discussing parents concerns about impact of the Marriage Exclusion on their children). The asserted interest in the well-being of children thus fails rational-basis review as a matter of logic because the Marriage Exclusion does not plausibly affect the procreative and child-rearing plans of heterosexual or same-sex couples and serves only to harm children of same-sex couples. In addition, it is undisputed that the premise of this asserted rationalethat same-sex couples are less optimal

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parents than opposite-sex coupleshas no factual basis. See Heller v. Doe ex rel. Doe, 509 U.S. 312, 321 (1993) (under rational basis review, the rationale must have a footing in . . . realit[y].); Romer, 517 U.S. at 632-33 (under rational basis review, there must be a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].). The Commonwealth itself recognizes this through its laws and policies concerning adoption by lesbian and gay couples. Same-sex couples are permitted to adopt children in Pennsylvania. Adoption of R.B.F., 803 A.2d 1195 (Pa. 2002). The Pennsylvania Department of Public Welfare, the administrative agency of the Commonwealth government that is responsible by law to oversee the child welfare system in Pennsylvania, has no policy that requires an agency to prefer placement with a heterosexual couple over a same-sex couple, and the Department prescribes forms for prospective adoptive and foster parents that are gender neutral, identifying applicants as Partner # 1 and Partner # 2. (Stip. of Facts Between Pls. and Defs. Meuser and Wolf 22, PX-64.) The agencies that are licensed and regulated by the Department place children in foster and adoptive placements with same-sex couples. (Id.) Moreover, it is undisputed that there is a consensus within the scientific community, based on over thirty years of research, that children raised by samesex couples fare no differently than children raised by opposite-sex couples and

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this consensus is recognized by every major professional organization dedicated to childrens health and welfare including the American Academy of Pediatrics, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America. (Lamb 32-35.) The well-being of children of same-sex parents is not a debatable question. Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 464 (1981). Indeed, this consensus has been recognized by numerous courts after trials involving expert testimony. See DeBoer, 2014 WL 1100794, at *12 ([T]here is simply no scientific basis to conclude that children raised in same-sex households fare worse than those raised in heterosexual households.); Perry, 704 F. Supp. 2d at 980 (finding that the research supporting the conclusion that [c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted is accepted beyond serious debate in the field of developmental psychology); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) ([B]ased on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.), affd sub nom. Fla. Dept of Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Rev. Bd., No. 1999-9881, 2004 WL 3154530, at

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*9, and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay parents that there was no rational relationship between the [exclusion of gay people as foster parents] and the health, safety, and welfare of the foster children.), affd sub nom. Dept of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006).16 In this case, Plaintiffs expert evidence conclusively refutes any claim that the Marriage Exclusion furthers the interests of children, and defendants have not introduced any contradictory evidence. To the extent that the Defendants asserted rationale reflects a belief (as suggested in the statement introduced by Representative Stern) that children are best off if raised by two biological parents, that rationale does not explain why same-sex couples are singled out. Lesbian and gay couples are hardly the only couples who create families in which children are not related biologically to one or

Opponents of marriage for same-sex couplesbut not the Defendants hereoften claim that a 2012 study by a sociologist named Mark Regnerus shows that children raised by same-sex parents fare worse than children raised by different-sex parents. But this study allows for no such conclusion because it did not actually assess individuals raised by same-sex parents See DeBoer, 2014 WL 1100794, at *7 (finding Dr. Regneruss testimony entirely unbelievable and not worthy of serious consideration in part because his study failed to measure the adult outcomes of children who were actually raised in same-sex households). Rather, the Regnerus study assessed a group of individuals who were the product of heterosexual unions that broke upwhich is a known correlate of poorer child outcomesand a parent subsequently had a same-sex relationship. (Lamb 36.)

16

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both parents. In fact, the majority of couples who create families through assisted reproduction involving donor sperm are opposite-sex couples. (Lamb 43.) Moreover, the Marriage Exclusion has no conceivable impact on the decisions of couples (heterosexual or gay) to form families through adoption or assisted reproduction. In any case, the research on same-sex parent families, as well as research on children of heterosexual couples conceived by donor insemination and children adopted as infants, establishes that there is no relationship between how well children fare and whether or not they are biologically related to their parents. (Lamb 44-46.) These uncontested facts show that the asserted optimality of opposite-sex parents is based on nothing but disproven negative assumptions about gay parents. As discussed above, even under rational basis review, the rationale must have a footing in . . . realit[y]. Heller, 509 U.S. at 321; see also Moreno, 413 U.S. at 535-36 (rejecting negative unsubstantiated assumptions about hippies). A negative stereotype that flies in the face of scientific consensus does not satisfy the rational basis test; if it could, rational basis review would be no review at all. Finally, even if there were, in fact, poorer outcomes among children raised by same-sex couplesand there are notthat would not explain the exclusion of same-sex couples from marriage. Research shows that there are groups whose children on average are more likely to have poorer child development outcomes

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(e.g., children of low income couples, children of low educated couples, and children in some ethnic groups). (Lamb 49.) But these groups are not excluded from marriage. (Id.) Indeed, the DeBoer court noted that Michigan does not similarly exclude certain classes of heterosexual couples from marrying whose children persistently have had sub-optimal developmental outcomes in scientific studies, and that [t]aking the state defendants position to its logical conclusion would require that marriage be restricted to only rich, educated, suburban-dwelling Asians. DeBoer, 2014 WL 1100794, at *13; see also Bishop, 962 F. Supp. 2d at 1294 (the state does not condition any other couples receipt of a marriage license on their willingness or ability to provide an optimal child-rearing environment for any potential or existing children.); Cleburne, 473 U.S. at 449-50 (an asserted interest that applies equally to non-excluded groups fails rational basis review). In fact, not only are groups whose children tend to have poorer outcomes permitted to marry, but marriage is promoted among these groups as a means of helping to ameliorate the disparities in outcomes. (Lamb 49.) Thus, if there were problematic child development outcomes for children of same-sex couples, that would only be a reason to encouragenot barmarriage by same-sex couples. (Id.) * * *

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For all of these reasons, the asserted interests related to procreation and the well-being of children fail rational basis review. Moreover, even if procreation is considered by some people to be one of the purposes of marriage, it is indisputably not the only purpose that marriage serves for Pennsylvania families. Marriage is a far-reaching legal acknowledgment of the intimate relationship between two people. Windsor, 133 S. Ct. at 2692; see also Griswold, 381 U.S. at 486 (Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.). Marriage in Pennsylvania is tied to a wide array of governmental protections and obligations that have nothing to do with procreation or children. Just like the constitutional amendment struck down in Romer, the Marriage Exclusion is a law that identifies persons by a single trait and then denies them protection across the board. Romer, 517 U.S. at 633. The laws breadth outrun[s] and belie[s] a claimed interest related to procreation or child-rearing. Id. at 635. B. An asserted interest in preventing adverse economic impacts on the Commonwealth and businesses does not satisfy rational basis review.

Defendants also offer as a rationale for the Marriage Exclusion preventing adverse economic impacts on the Commonwealth and private businesses. The statements contained in the legislative record related to this interest are the following:

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 [L]egalizing same-sex marriages would place another unfunded mandate on our business community. Any existing pension or insurance program providing benefits to a spouse would now have to include an entirely new supply of so-called spouses. The providers of these benefits would have to assume a liability they never conceived when the promise was made. To avoid these new liabilities, providers would have to cancel and rewrite the agreements, and future agreements might even delete the coverage of spouse and family that Pennsylvania workers have come to depend on. 1996 Pa. Legis. J. (House), at 2017, PX-45. The burden on the public sector could be great as well. In recognizing same-sex marriages, courts would also have to hear all same-sex divorce suits. This will only compound the backlog of cases in our judicial system. Social Security, tax, and other benefits presently conferred on spouses would have to be expanded to include married partners of the same sex. The financial costs imposed on society by the forced recognition of same-sex marriage cannot even be calculated at this time. Id. The fact of the matter is that the issue turns . . . on economics, pure and simple. . . . [S]ome people have begun to realize that permitting same-gender or gender-neutral marriages can cause significant economic dislocations. Marriage has longstanding been considered a civil contract. The fact that it is now defined that way in this bill does not change the way it has been for the last hundreds of years, and that civil contract confers obligations, responsibilities, and benefits upon two individuals who fulfill that legal contract. I daresay that if we begin to redefine marriage as same gender, there will be many people who will suddenly realize that they can achieve the benefits of a married couple, whether it is in taxes, inheritances, property ownership, whatever it may be, that will be a clear economic advantage that is in fact enjoyed by married people of different genders. It has nothing to do with gender preference or sexual preference; it has everything to do with economic gain or loss. I think there will be economic dislocations that would occur if we were to permit same-gender marriages that we have not even begun to conceive at this point, and until we are able to ascertain what those dislocations will be and who in fact will be picking up the costs of those dislocations, we need to move forward with legislation such as

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this. I am not so certain that we need to do it as precipitously as this bill has been done, but certainly we need to establish a base from which to work and from which to conduct a study. This bill permits us the opportunity to do that by settling the issue until such time as such a study may be completed. 1996 Legis. J. (Senate), at 2454 (Oct. 1, 1996), PX-46. As a matter of law, saving money or resources is not a legitimate justification for excluding a group from a government benefit without an independent rationale for why the cost savings ought to be borne by the particular group being denied the benefit. Plyler, 457 U.S. at 227 (Of course, a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.). In any case, there is no factual basis for the suggestion that allowing samesex couples to marry will financially burden the Commonwealth or Pennsylvania businesses. Heller, 509 U.S. at 321 (rational basis review must have a footing in . . . realit[y]). In fact, the financial impact is the opposite. The uncontested expert testimony shows that the Marriage Exclusion actually costs the Commonwealth money in (i) increased Medicaid expenditures due to more Pennsylvanians lacking health insurance because they are unable to procure employee spousal health benefits; (ii) increased expenditures on Temporary Assistance to Needy Families because same-sex spouses or partners income is not taken into account when determining eligibility; and (iii) loss of state sales tax on wedding-related revenue, which for the next three years alone is

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estimated to be a loss of $65 to $92 million in taxable spending to Pennsylvanias businesses and communities. (Badgett 64-78.) These costs outweigh the savings to the Commonwealth that result from the discriminatory imposition of taxes on same-sex couples. (Id. 86-92.)17 Moreover, there are additional significant, unquantifiable costs to the Commonwealth such as difficulty attracting highly skilled workers who are important for economic growth. (Id. 81-84.)18 In addition, the undisputed expert testimony establishes that the Marriage Exclusion causesnot preventsadverse economic impacts to Pennsylvanias businesses. Allowing same-sex couples to marry would not require any additional expenses on the part of Pennsylvania businesses (id. 97), but barring marriage The asserted concern about same-sex divorce cases backlogging the court system is particularly illogical and lacking in factual basis. Denying same-sex couples access to the mechanism of divorce actually utilizes more court resources, not less, because these couples are unable to address all disputes arising out of their separation in a single court the way married couples are able to do so. For example, a same-sex couple that has both child custody and property division issues could use the family court for resolving the custody issue, but the family court would not be able to address the property division issue. That would have to be addressed separately by a civil court of general jurisdiction. (Carpenter 8182; Badgett 98-100.) Although the legislative record includes a statement by a senator that the Marriage Exclusion was needed to give time to conduct a study on the economic impact of allowing same-sex couples to marry, there is no evidence any such study was ever conducted by the Commonwealth. Indeed, Plaintiffs sought discovery of any studies conducted by the Commonwealth on this issue, and no studies were produced or even acknowledged to exist. (See generally Defs. Resp. to Pls. First Set of Reqs. for Produc. of Docs., PX-36; Defs. Resp. to Pls. Second Set of Reqs. for Produc. of Docs., PX- 38.)
18 17

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costs businesses substantially (id. 79-85). As countless businesses recognize, providing equal family benefits to lesbian and gay employees is good for business, and state laws prohibiting marriage for same-sex couples hurt those very efforts. (Id. 79 (citing positions of Google, Apple, Verizon, Walt Disney, Viacom, Nike, Morgan Stanley, Microsoft and hundreds of other employers).) In addition to impeding critical recruitment and retention efforts, the exclusion of same-sex couples from marriage makes the provision of equal family benefits more expensive to businesses in terms of payroll taxes and administrative inefficiencies that would not exist if those benefits could be provided as spousal benefits. (Id. 85, 97.) The Commonwealths own conduct as an employer is directly contrary to any notion that the Marriage Exclusion protects business or the economy. The Commonwealth provides domestic partner benefits to its own employees specifically so it can be competitive in attracting employees. (Id. 80.) In the spring of 2009, the Pennsylvania Employee Benefits Trust Fund (PEBTF), which administers the benefits to the approximately 77,000 eligible state employees and their dependents and 63,000 retirees and their dependents, stated that a majority of Fortune 500 companies offered benefits to domestic partners. PEBTF, Benefit News for Active Members, at 1 (Spring 2009), PX-54. PEBTFs communications director explained that PEBTF decided to extend health care

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benefits to same-sex partners because, among other reasons: We basically want to become competitive with other employers. Marc Levy, Its Just the Right Thing to Do, NBC10.com (May 15, 2009), PX-55; see also Marc Levy and Karen Araiza, Same Sex Partners Can Celebrate, NBC10.com (July 1, 2009), PX-57. C. An asserted interest in tradition does not satisfy rational basis review.

Finally, the Defendants cite to tradition as a justification for the Marriage Exclusion. The statements contained in the legislative record related to this interest are the following: The amendment is simply an expression of Pennsylvanias traditional and longstanding moral opposition to same-sex marriages . . . and support of the traditional family unit. 1996 Pa. Legis. J. (House), at 2017, PX-45. The amendment is designed to benefit the vast majority of Pennsylvanians, because the large majority do not want our traditional marriage institution and our state of morals to be changed. Id. at 2019. I believe it is imperative that we in Pennsylvania should stand up for traditional marriage for the benefit of families and children in the Commonwealth and our future. Id. at 2022. This is a vote about family values and traditional beliefs . . . . Id. Tradition, by itself, does not constitute an independent and legitimate legislative end for purposes of rational-basis review. Romer, 517 U.S. at 633. [T]he government must have an interest separate and apart from the fact of tradition itself, Golinski, 824 F. Supp. 2d at 993, because the justification of

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tradition does not explain the classification; it merely repeats it. Kerrigan, 957 A.2d at 478; accord Varnum, 763 N.W.2d at 898 (asking whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage results in empty analysis). The fact that a group of people has traditionally been treated unequally is not a justification for continuing that unequal treatment. Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. Heller, 509 U.S. at 326; see also Lawrence, 539 U.S. at 577-78 ([N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack.) (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)). As the Supreme Court has explained, times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. Lawrence, 539 U.S. at 579. The Supreme Court has on many occasions struck down discriminatory practices that had existed for years without raising any constitutional concerns. Long after the adoption of the Fourteenth Amendment, and well into [the twentieth century], legal distinctions between men and women were thought to raise no question under the Equal Protection Clause. United States v. Virginia, 518 U.S. at 560 (Rehnquist, J., concurring); see also J.E.B., 511 U.S. at 142 n.15 (We do not dispute that this Court long has tolerated the discriminatory use of

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peremptory challenges, but this is not a reason to continue to do so.). A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded. United States v. Virginia, 518 U.S. at 557. Ultimately, preserving the traditional institution of marriage is just a kinder way of describing the [s]tates moral disapproval of same-sex couples. Lawrence, 539 U.S. at 601 (Scalia, J., dissenting) (emphasis in original). See Bishop, 962 F. Supp. 2d at 1295 (rejecting argument based on tradition because it is impermissibly tied to moral disapproval of same-sex couples as a class.). Indeed, statements in the legislative record in support of the Marriage Exclusion in Pennsylvania directly link tradition and moral disapproval of same-sex marriages. See 1996 Pa. Legis. J. (House), at 2019 (the majority do not want our traditional marriage institution and our state of morals to be changed.), PX-45. The Supreme Court has made clear that moral disapproval is not a legitimate basis for government discrimination. Windsor, 133 S. Ct. at 2692; Lawrence, 539 U.S. at 582 (OConnor, J., concurring) (noting that Texas attempted to justify its homosexual sodomy law by a government interest in the promotion of morality). For these reasons, tradition has been resoundingly rejected by federal district courts as a justification for excluding same-sex couples from marriage. DeBoer, 2014 WL 1100794, at *15; De Leon, 2014 WL 715741, at *16; Bostic,

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2014 WL 561978, at *15; Bourke, 2014 WL 556729, at *7; Bishop, 962 F. Supp. 2d at 1295; Kitchen, 961 F. Supp. 2d at 1203.19 V. No Legitimate Interest Overcomes The Purpose And Effect Of Pennsylvanias Marriage Exclusion To Disparage And Injure Same-Sex Couples And Their Families. Because there is no rational connection between Pennsylvanias Marriage Exclusion and any of the asserted state interests, this Court can conclude that the Marriage Exclusion violates equal protection even without considering whether it is motivated by an impermissible purpose. In this case, however, the lack of any connection between Pennsylvanias Marriage Exclusion and any legitimate state interest also confirms the inescapable conclusion that it was passed because of, not in spite of, the harm it would inflict on same-sex couples. Windsor is the latest in a long line of cases holding that statutes whose primary purpose is to disadvantage a politically unpopular group An argument made by some opponents of marriage for same-sex couplesbut not the Defendants hereis that allowing same-sex couples to marry would harm the institution of marriage or affect the marriages of heterosexual couples. This argument fails rational basis review because there is no plausible basis to believe that allowing same-sex couples to marry will affect the marital decisions of heterosexual couples. (Peplau 57-64.) Indeed, in states that allow same-sex couples to marry, there has been no reduction in the marriage rate or increase in divorce. (Id. 62.) See Kitchen, 961 F. Supp. 2d at 1213 (citing amicus brief submitted by fourteen states and the District of Columbia stating that the implementation of same-sex marriage in their jurisdictions had not resulted in any decrease in opposite-sex marriage rates, increase in divorce rates, or increase in the number of non-marital births).
19

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violate equal protection. See Windsor, 133 S. Ct. at 2693; Romer, 517 U.S. at 635; Cleburne, 473 U.S. at 446; Moreno, 413 U.S. at 534; see also Vance v. Bradley, 440 U.S. 93, 97 (1979) (rational-basis review is deferential absent some reason to infer antipathy); N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 593 n.40 (1979) (noting that the Courts equal protection cases have long recognized a distinction between invidious discrimination, which it described as classifications drawn with an evil eye and an unequal hand or motivated by a feeling of antipathy against, a specific group and those special rules that are often necessary for general benefits). These cases have sometimes been described as a form of second order or more searching form of rational-basis review, see Cleburne, 473 U.S. at 458 (Marshall, J., concurring in part); Lawrence, 539 U.S. at 580 (OConnor, J., concurring), or careful consideration, Romer, 517 U.S. at 633; Windsor, 133 S. Ct. at 2693. But regardless of how these cases are labeled, they establish that laws based on the unstated premise that some citizens are more equal than others, Zobel v. Williams, 457 U.S. 55, 71 (1982) (Brennan, J., concurring), or passed for the purpose of impos[ing] inequality, Windsor, 133 S. Ct. at 2694, cannot stand. See id. at 2706 (Scalia, J., dissenting) (noting that because of its central holding the Windsor majority opinion did not need [to] get into the strict-vs.-rational-basis scrutiny question).

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The Supreme Court has sometimes described this impermissible purpose as animus or a bare . . . desire to harm a politically unpopular group. Windsor, 133 S. Ct. at 2693. But this impermissible purpose does not have to reflect malicious ill will. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring). It can also take the form of moral disapproval, Lawrence, 539 U.S. at 582 (OConnor, J., concurring), negative attitudes, Cleburne, 473 U.S. at 448, fear, id., irrational prejudice, id. at 450, simple want of careful rational reflection, Garrett, 531 U.S. at 374 (Kennedy, J., concurring), or some instinctive mechanism to guard against people who appear to be different in some respects from ourselves, id. The Supreme Court in Windsor found that the history of DOMAs enactment and its own text demonstrate that interfering with the equal dignity of same-sex couples was more than an incidental effect of the federal statute. It was its essence. Windsor, 133 S. Ct. at 2693. The same is true here: Pennsylvanias Marriage Exclusion was enacted because of, not in spite of, its adverse effect on same-sex couples. First, like the federal DOMA, the text of Pennsylvanias Marriage Exclusion makes clear that the intent was to exclude same-sex couples. Windsor, 133 S. Ct. at 2693. The law specifically includes the provision that any marriage between persons of the same sex . . . entered into in another state or foreign jurisdiction,

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even if valid where entered into is void for state law purposes. 23 Pa. C.S. 1704. This is not a law that incidentally affects same-sex couples. In addition, the historical background of the Marriage Exclusion reflects a purpose to exclude same-sex couples, and belies the suggestion that the exclusion of same-sex couples is a mere side-effect of some broader public policy. Cf. Windsor, 133 S. Ct. at 2693 (examining historical context of DOMA); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-67 (1977) (historical background of the decision is relevant when determining legislative intent). The Marriage Exclusion was not enacted long ago at a time when many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. Windsor, 133 S. Ct. at 2689. It was enacted as a specific response to developments in other jurisdictions where same-sex couples sought the freedom to marry. (Chauncey 97.) See 1996 Pa. Legis. J. (House), at 2017, PX45. The fact that people in colonial times may not have passed marriage laws based on antipathy toward same-sex couples does not mean that Pennsylvanias decision in 1996 to reaffirm that exclusion and void the marriages of same-sex couples entered into in other states is similarly benign. The Equal Protection Clause is violated when government has selected or reaffirmed a particular course

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of action because of its negative effects on an identifiable group. Pers. Admr of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added). Moreover, statements in the legislative record belie any suggestion that this law only incidentally impacted same-sex couples. The record shows that making them unequal was its aim. In introducing the amendment, Representative Egolf stated that the so-called marriages of same-sex couples are contrary to our public policy and the amendment is simply an expression of Pennsylvanias longstanding policy of moral opposition to same-sex marriages. 1996 Pa. Legis. J. (House), at 2017, PX-45. He went on to say that the exclusion of same-sex couples from marriage is designed to benefit the vast majority of Pennsylvanians, because the large majority do not want our traditional marriage institution and our state of morals to be changed. Id. at 2019. Representative Gamble, after stating his support for the Marriage Exclusion, summed up by expressing his contempt for same-sex relationships, saying I just thank God Im going back to Oakdale where men are men and women are women and believe me boys and girls there is one heck of a difference. Id. at 2022. Representative Stern then rose in support of the amendment, stating that it is imperative that we in Pennsylvania should stand up for traditional marriage, and this is a vote about family values and traditional beliefs. Id. He also submitted for the record a statement from a group advocating against same-sex marriage in Hawaii that compared the decision of the

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Hawaii Supreme Court regarding same-sex marriage to the attack on Pearl Harbor. Id. at 2023. The statement submitted by Representative Stern stated, inter alia, that [n]o same sex relationship can mimic the genuine potential of a relationship between a woman and a man. Id.20 Many of these statements from Pennsylvania legislators echo the statements of members of Congress that the Supreme Court pointed to in Windsor in concluding that the purpose of the federal DOMA was to disparage and injure. See Representative Egolf and several other co-sponsors of the legislation filed a lawsuit in 2004 against two gay men who had sought a marriage license in Pennsylvania but had been denied. See Complaint, Egolf v. Seneca, No. 200403160 (C.P. Bucks County, Pa., May 13, 2004), PX-52-A. In that litigation, these legislators further expressed their antagonism towards same-sex relationships: Marriage should be restricted to opposite-sex couples in order to promote prosperity. . . . Societies that restricted sexual relationships to one man and one woman in marriage have prospered. Societies that relax those restrictions have suffered decline within three generations. Id. 27. Marriage should be restricted to opposite-sex couples in order to promote relationships where there is physical complementarity in order to reduce health problems and the spread of disease . . . Anal sex can cause tearing, bleeding, and other complications. Anal sex also promotes the spreading of disease. Even a woman who has sex with another woman is at substantial risk for sexually transmitted diseases. Id. 28.
20

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Windsor, 133 S. Ct. at 2693 (noting that the House Report on DOMA said it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage, the law expresses moral disapproval of homosexuality, and the purpose of the law was to promote an interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws). Finally, like the federal DOMA, the practical effect of Pennsylvanias Marriage Exclusion is to impose a disadvantage, a separate status, and so a stigma upon same-sex couples in the eyes of the state and the broader community. Windsor, 133 S. Ct. at 2693; see pages 7-13, supra. All of these facts lead to the inescapable conclusion that Pennsylvanias Marriage Exclusion classifies [same-sex couples] not to further a proper legislative end but to make them unequal to everyone else. This [Pennsylvania] cannot do. Romer, 517 U.S. at 635. Even if it were possible to hypothesize a rational connection between Pennsylvanias Marriage Exclusion and some legitimate governmental interest and it is notno hypothetical justification can overcome[] the purpose and effect to disparage and to injure same-sex couples. Windsor, 133 S. Ct. at 2696.

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CONCLUSION As Plaintiff Lynn Hurdle explained, in words that ring true for all Plaintiffs: Fredia and I love each other, have lived our lives as if we were married, like any other American couple, and we want the Commonwealth of Pennsylvania to acknowledge that our relationship counts and is respected by the law. (L. Hurdle 8.) For the foregoing reasons, Plaintiffs Motion for Summary Judgment should be granted. Respectfully submitted, Dated: April 21, 2014 HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER By: /s/ Mark A. Aronchick Mark A. Aronchick John S. Stapleton Dylan J. Steinberg Rebecca S. Melley One Logan Square, 27th Floor Philadelphia, PA 19103 (215) 568-6200 Helen E. Casale 401 DeKalb Street, 4th Floor Norristown, PA 19401 (610) 313-1670 Counsel for Plaintiffs

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ACLU FOUNDATION OF PENNSYLVANIA By: /s/ Witold J. Walczak Witold J. Walczak 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7736 Mary Catherine Roper Molly Tack-Hooper P.O. Box 40008 Philadelphia, PA 19106 (215) 592-1513 Counsel for Plaintiffs James D. Esseks Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 Counsel for Plaintiffs Seth F. Kreimer 3400 Chestnut St. Philadelphia, Pa. 19104 (215) 898-7447 Counsel for Plaintiffs

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CERTIFICATE OF WORD COUNT I, Mark A. Aronchick, hereby certify pursuant to Local Civil Rule 7.8(b)(2) that the text of the foregoing Plaintiffs Brief in Support of Motion for Summary Judgment contains 17,474 words as calculated by the word-count function of Microsoft Word, which is within the limit of 17,500 words stipulated between Plaintiffs and Defendants Wolf and Meuser.

Dated: April 21, 2014

/s/ Mark A. Aronchick Mark A. Aronchick

CERTIFICATE OF SERVICE I hereby certify that on this 21st day of April, 2014, that I caused the foregoing Plaintiffs Brief in Support of Motion for Summary Judgment to be filed electronically using the Courts electronic filing system, and that the filing is available to counsel for all parties for downloading and viewing from the electronic filing system. On the same date, a copy of the foregoing Brief was also served via Federal Express on the following: William H. Lamb Joel L. Frank LAMB MCERLANE PC 24 East Market Street West Chester, PA 19380 (610) 430-8000 Counsel for Defendants Wolf and Meuser

/s/ Mark A. Aronchick Mark A. Aronchick

Case 1:13-cv-01861-JEJ Document 114-1 Filed 04/21/14 Page 1 of 76

UNPUBLISHED OPINIONS

Case 1:13-cv-01861-JEJ Bostic v. Rainey, --- F.Supp.2d ---- (2014)

Document 114-1 Filed 04/21/14 Page 2 of 76

West's V.C.A. Const. Art. 1, 15A;West's V.C.A. 20 45.2, 2045.3. Attorneys and Law Firms Charles Barnet Lustig, Robert Eugene Ruloff, Thomas Brady Shuttleworth, II, Andrew Mitchell Hendrick, Erik C. Porcaro, Shuttleworth Ruloff Swain Haddad & Morecock PC, Virginia Beach, VA, Amir C. Tayrani, Chantale Fiebig, Matthew D. McGill, Gibson Dunn & Crutcher LLP, Theodore B. Olson, William Isaacson, Boies, Schiller & Flexner, Washington, DC, David Boies, Boies, Schiller & Flexner LLP, Armonk, NY, Joshua I. Schiller, Robert Brian Silver, Boies, Schiller & Flexner LLP, New York, NY, Jeremy Michael Goldman, Boies, Schiller & Flexner LLP, Oakland, CA, Joshua Seth Lipshutz, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Plaintiffs. Earle Duncan Getchell, Jr., Catherine Crooks Hill, Rhodes Beahm Ritenour, Office of the Attorney General, Trevor Stephen Cox, Hunton & Williams LLP, Richmond, VA, Stuart Alan Raphael, Hunton & Williams LLP, McLean, VA, David Brandt Oakley, Poole Mahoney PC, Chesapeake, VA, for Defendants. Opinion We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is? ... I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the wrong kind of person for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others.... I support the freedom to marry for all. That's what Loving, and loving, are all about. Mildred Loving, Loving for All 1

2014 WL 561978 Only the Westlaw citation is currently available. United States District Court, E.D. Virginia, Norfolk Division. Timothy B. BOSTIC, Tony C. London, Carol Schall, and Mary Townley, Plaintiffs, v. Janet M. RAINEY, in her official capacity as State Registrar of Vital Records, and George E. Schaefer, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, Defendants; and Michele B. McQuigg, in her official capacity as Prince William County Clerk of Circuit Court, IntervenorDefendant. Civil No. 2:13cv395. | Feb. 13, 2014.

Synopsis Background: Same-sex couples brought action challenging constitutionality of Virginia statutes and constitutional provisions prohibiting a person from marrying another person of the same gender. Plaintiffs moved for summary judgment and for a preliminary injunction.

Holdings: The District Court, Arenda L. Wright Allen, J., held that: [1] plaintiffs had Article III standing to challenge the constitutionality of the Virginia laws; [2] city officials responsible for issuing and denying marriage licenses and recording marriages and providing forms for marriage certificates were proper defendants; [3] challenged laws violated due process; and [4] challenged laws violated equal protection.

Motions granted.

West Codenotes Held Unconstitutional

2014 Thomson Reuters. No claim to original U.S. Government Works.

Case 1:13-cv-01861-JEJ Bostic v. Rainey, --- F.Supp.2d ---- (2014)

Document 114-1 Filed 04/21/14 Page 3 of 76

On September 3, 2013, Mr. Bostic and Mr. London filed an Amended Complaint dismissing the former Governor and the former Attorney General as defendants. 3 The Amended Complaint added two plaintiffs, Carol Schall and Mary Townley. Plaintiffs Mr. Bostic, Mr. London, Ms. Schall and Ms. Townley are herein collectively referred to as Plaintiffs. One new defendant was added in the Amended Complaint: Ms. Janet Rainey, in her official capacity as State Registrar of Vital Records. Ms. Rainey and Mr. Schaefer are collectively referred to as Defendants. The parties advanced cross motions seeking summary judgment (ECF Nos. 25, 38, 40), and Plaintiffs also filed a Motion for Preliminary Injunction (ECF No. 27). These motions were the subject of a hearing conducted before this Court on February 4, 2014. Two motions for leave to file amici curiae briefs in support of Defendants' motions were filed and granted. Additionally, Ms. Michele McQuigg (IntervenorDefendant) moved to intervene as a defendant in her official capacity as Prince William County Clerk of Circuit Court, and this was granted in part on January 21, 2014. *2 On January 23, 2014, Defendant Rainey, in conjunction with the Office of the Attorney General, submitted a formal change in position, and relinquished her prior defense of Virginia's Marriage Laws. IntervenorDefendant was granted leave to adopt Ms. Rainey's prior motion and briefs in support of that motion. Accordingly, for the purposes of analyzing the arguments presented in this matter, the Plaintiffs and Ms. Rainey are hereinafter referred to as the Opponents of Virginia's Marriage Laws, and Defendant Schaefer, Intervenor Defendant, and the amici are hereinafter referred to as the Proponents of Virginia's Marriage Laws. Where necessary for the following analysis, this Opinion and Order will identify the individual parties and their arguments.

OPINION AND ORDER ARENDA L. WRIGHT ALLEN, United States District Judge. *1 A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Constitution declares that all men are created equal. Surely this means all of us. While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary's noblest endeavors is to scrutinize laws that emerge from such roots. Before this Court are challenges to Virginia's legislated prohibition on same-sex marriage. Plaintiffs assert that the restriction on their freedom to choose to marry the person they love infringes on the rights to due process and equal protection guaranteed to them under the Fourteenth Amendment of the United States Constitution. These challenges are well-taken.

I. BACKGROUND A. PROCEDURAL HISTORY Plaintiffs Timothy B. Bostic and Tony C. London are two men who have been unable to obtain a marriage license to marry each other in Virginia because of Virginia's Marriage Laws. 2 On July 18, 2013, Mr. Bostic and Mr. London filed a Complaint pursuant to 42 U.S.C. 1983 against former Governor Robert F. McDonnell, former Attorney General Kenneth T. Cuccinelli, and George E. Schaefer III in his official capacity as the Clerk of Court for Norfolk Circuit Court (ECF No. 1). This Complaint sought declaratory and injunctive relief regarding the treatment of same-sex marriages in the Commonwealth of Virginia under the Virginia Constitution and the Virginia Code. The Complaint also asked this Court to find Article I, Section 15A of the Virginia Constitution and Sections 2045.2, 2045.3 of the Virginia Code unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

B. FACTS 1. Plaintiffs Timothy B. Bostic and Tony London Plaintiffs Timothy B. Bostic and Tony C. London live in Norfolk, Virginia, where they own a shared home. Mr. Bostic is an Assistant Professor of English Education in the Department of English at Old Dominion University in Norfolk, Virginia. He teaches English Education to undergraduate students.

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legal California marriage, Ms. Schall and Ms. Townley face legal and practical challenges that do not burden other married couples in Virginia. Ms. Townley gave birth to the couple's daughter, E. S.T., in 1998. During her pregnancy, she was admitted to the emergency room at VCU's Medical Center due to complications that left her unable to speak. Ms. Schall was denied access to Ms. Townley, and could obtain no information about Ms. Townley's condition, for several hours because she is not recognized as Ms. Townley's spouse under Virginia law. See id. 54.12986 (2014). Since E. S.-T.'s birth, Ms. Schall has yearned to adopt her. Virginia law does not permit second-parent adoption unless the parents are married. Because Ms. Schall is not considered to be Ms. Townley's spouse, Ms. Schall is deprived of the opportunity and privilege of doing so. Id. 63.21201, 63.2 1202 (2014). Ms. Schall and Ms. Townley also incurred significant expenses to retain an estate planning attorney for necessary assistance in petitioning a court to grant Ms. Schall full joint legal and physical custody of E. S.-T. Although their petition was granted, Ms. Schall remains unable to legally adopt E. S.-T. Despite being deprived of the opportunity to participate in a legal adoption of her daughter, Ms. Schall is a loving parent to E. S.-T., just as Ms. Townley is. The family lives together in one household, and both parents provide E. S.-T. with love, support, discipline, protection and structure. Ms. Schall and Ms. Townley cannot obtain a Virginia marriage license or birth certificate for their daughter listing them both as her parents. Id. 2045.2, 32.1261 (2014). In April 2012, Ms. Schall and Ms. Townley sought to renew E. S.-T.'s passport, a process that requests the consent of both parents. When Ms. Schall and Ms. Townley presented the passport renewal forms on behalf of their daughter, a civil servant at a United States Post Office in Virginia told Ms. Schall that You're nobody, you don't matter. Schall Decl. para. 17, ECF No. 263; Townley Decl. para. 12, ECF No. 264. After E. S.-T. was born, Ms. Townley had to return to work in part because her own health insurance was expiring and she could not obtain coverage under Ms. Schall's insurance plan.

Mr. London is a veteran of the United States Navy. He also worked as a real estate agent in Virginia for sixteen years. Mr. Bostic and Mr. London have enjoyed a long-term, committed relationship with each other since 1989, and have lived together continuously in Virginia for over twenty years. They desire to marry each other, publicly commit themselves to one another, participate in a State-sanctioned celebration of their relationship, and undertake the solemn rights and responsibilities that Virginia's Marriage Laws confer presently upon other individuals who marry. On July 1, 2013, Mr. Bostic and Mr. London applied for a marriage license from the Clerk for the Circuit Court for the City of Norfolk. They completed the application for a marriage license and affirmed that they are over eighteen years of age and are unrelated. Mr. Bostic and Mr. London meet all of the legal requirements for marriage in Virginia except for the fact that they are the same gender. Va.Code 2038.1, 2045.1 (2014). Their application for a marriage license was denied by the Clerk of the Circuit Court for the City of Norfolk.

2. Plaintiffs Carol Shall and Mary Townley Plaintiffs Carol Schall and Mary Townley live in Chesterfield County, Virginia, with their fifteen-year-old daughter, E. S.T. Ms. Schall is an Assistant Professor in the School of Education at Virginia Commonwealth University (VCU) in Richmond, Virginia. She specializes in research on teaching autistic children. Ms. Townley is the Supervisor of Transition at Health Diagnostic Laboratory, Inc. (HDL). She trains individuals with significant disabilities so that they may work at HDL. Ms. Townley and Ms. Schall have enjoyed a committed relationship since 1985. They have lived together continuously in Virginia for almost thirty years. *3 In 2008, Ms. Schall and Ms. Townley were legally married in California. They obtained a marriage license in California because the laws of Virginia did not permit them to do so in their home state. Ms. Schall and Ms. Townley meet the legal requirements to have their marriage recognized in Virginia, except that they are the same gender. See id. 2038.1, 2045.2, 2045.3 (2014). Because the Commonwealth will not recognize their

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There is little dispute that these laws were rooted in principles embodied by men of Christian faith. By 1819, Section 6 of the Code of Virginia also made it lawful for all religious persuasions and denominations to use their own regulations to solemnize marriage. 1 Thomas Ritchie, The Revised Code of the Laws of Virginia 396 (1819). However, although marriage laws in Virginia are endowed with this faithenriched heritage, the laws have nevertheless evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia, with protections and benefits extended to portions of Virginia's citizens. See Womack v. Tankersley, 78 Va. 242, 243 (1883). The Virginia Code in 1819 declared that every license for marriage shall be issued by the clerk of the court of that county or corporation.... Id. at 398. The authority to conduct marriages was then bestowed upon civil servants. Id. at 39697 ([T]here is no ordained minister of the gospel ... within this Commonwealth, authorised to celebrate the rites of matrimony.... [I]t shall be and may be lawful for the courts ... to appoint two persons of each of the said counties ... who, by virtue of this act, shall be authorised to celebrate the rites of marriage, in the counties wherein they respectively reside.). 5 *5 In 1997, Virginia law limited the institution of civil marriage to a union between a man and a woman. Va.Code 2045.2. The Virginia legislature amended the Code to provide that a marriage between persons of the same sex is prohibited. Id. Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable. Id. In 2004, following successful challenges to state prohibitions against same-sex marriage in other states, Virginia's General Assembly, through Joint Resolution No. 91 and House Joint Resolution No. 187, proposed an amendment to the Virginia Constitution. See S.J. Res. 91, Reg. Sess. (Va.2004) (enacted) (citing challenges to state laws have been successfully brought in Hawaii, Alaska, Vermont, and most recently in Massachusetts on the grounds that the legislature does not have the right to deny the benefits of marriage to same-sex couples and the state must guarantee the same protections and benefits to same-sex couples as it does to opposite-sex couples absent a constitutional amendment as a basis for amending the Virginia Constitution).

Until February 2013, neither Ms. Schall nor Ms. Townley could obtain insurance coverage for each other under their respective employer-provided health insurance plans. In February 2013, Ms. Townley obtained health insurance coverage under her employer-provided plan for Ms. Schall. She must pay state income taxes on the benefit because she and Ms. Schall are not recognized as married under Virginia's Marriage Laws. *4 Ms. Schall and Ms. Townley were ineligible for protections under federal laws governing family medical leave when their daughter was born and when one of their parents passed away. 29 U.S.C. 2612 (2014). If the Commonwealth of Virginia recognized Ms. Schall's and Ms. Townley's legal marriage and permitted both to be listed on their daughter's birth certificate, their daughter could inherit the estate of both parents in the event of their death, and could avoid tax penalties on any inheritance from Ms. Schall's estate. Va.Code 64.2309 (2014). Under Virginia's Marriage Laws, agreements between Ms. Schall and Ms. Townley concerning custody, care, or financial support for their daughter could be declared void and unenforceable. Id. 2045.2. Because the Commonwealth does not recognize their legal marriage, benefits of Virginia's Marriage Laws that promote the integrity of families are denied to Ms. Schall, Ms. Townley and their child. 4

3. Virginia's Marriage Laws The laws at issue here, referred herein as Virginia's Marriage Laws, include two statutory prohibitions on same-sex unions, and an amendment to the Virginia Constitution. Specifically, Plaintiffs seek relief from the imposition of Article I, 15 A, of the Virginia Constitution and Sections 2045.2 and 20 45.3 of the Virginia Code. Plaintiffs also seek relief from the imposition of any Virginia law that bars same-sex marriage or prohibits the State's recognition of otherwise-lawful same-sex marriages from other jurisdictions. See Am. Compl., Prayer for Relief, paras. 12, ECF No. 18. Plaintiffs also request that their constitutional challenge extend to any Virginia case or common law upon which the Proponents or other parties might rely in attempts to withhold marriage from same-sex couples or deny recognition to the legal marriage of same-sex couples.

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will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). *6 Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be considered by a court in its determination. Id. at 248, 106 S.Ct. 2505. After a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute of fact exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 58687, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). At that point, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. [1] In doing so, the Court must construe the facts in the light most favorable to the non-moving party, and may not make credibility determinations or weigh the evidence. Id. at 255, 106 S.Ct. 2505. However, a court need not adopt a version of events that is blatantly contradicted by the record, so that no reasonable jury could believe it. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). There must be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 24950, 106 S.Ct. 2505 (citations omitted). If there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party, the motion for summary judgment must be denied. Id. at 249, 106 S.Ct. 2505.

On November 7, 2006, a majority of Virginia voters ratified a constitutional amendment (the Marshall/Newman Amendment), which was implemented as Article I, Section 15A of the Virginia Constitution. The Marshall/Newman Amendment provides: That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. Va. Const. art. I, 15A. The Virginia Legislature also adopted the Affirmation of Marriage Act in 2004. This provides: A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable. Va.Code 2045.3.

II. STANDARDS OF LAW A. SUMMARY JUDGMENT The Proponents and Opponents of Virginia's Marriage Laws have moved for summary judgment on the constitutional challenges to the laws. Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (2013). [T]he mere existence of some alleged factual dispute between the parties

B. PRELIMINARY INJUNCTION [2] Plaintiffs also request a preliminary injunction. A plaintiff requesting the extraordinary remedy of a preliminary injunction must establish a likelihood of success on the merits, that the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in the plaintiff's favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

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Id. Defendant Schaeffer contends that Ms. Schall and Ms. Townley have sought no recognition of their California marriage through him, and have not attempted to obtain a marriage license from him in Norfolk. Id. Defendant Schaefer contends that even if he were ordered to issue marriage licenses to same-sex couples, Ms. Schall and Ms. Townley would be unaffected because they are already married under the laws of California. Id. [3] A plaintiff must meet three elements to establish standing. First, a plaintiff must have suffered an injury in fact which is concrete and particularized. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, a plaintiff must establish a causal connection between the injury and the conduct complained of. Id. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). There is no dispute that Plaintiffs are loving couples in longterm committed relationships who seek to marry in, or have their marriage recognized by, the Commonwealth of Virginia. Bostic Decl. paras. 35, ECF No. 261; London Decl. paras. 46, ECF No. 262; Schall Decl. paras. 57, 31, ECF No. 26 3; Townley Decl. paras. 619, ECF No. 264. They claim to suffer real and particularized injuries as a direct result of Defendants' enforcement of Virginia's Marriage Laws, including far-reaching legal and social consequences, and the pain of humiliation, stigma, and emotional distress that accumulates daily. [4] Plaintiffs Bostic and London plainly did submit an application for a marriage license. They tried to obtain a marriage license, and these efforts were unsuccessful. Br. Supp. Def. Schaefer's Mot. Summ. J. 2, ECF No. 41; Bostic Decl. paras. 610, ECF No. 261; London Decl. paras. 7 10, ECF No. 262. This establishes an Article III injury. See Parker v. District of Columbia, 478 F.3d 370, 376 (D.C.Cir.2007) (holding that courts have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury). This Court accepts oral argument from counsel for Defendant Schaefer as a concession on this point. Tr. 32:1620, Feb. 4, 2014, ECF No. 132 ([U]nder Virginia's existing laws, ... George Schaefer's office could not issue that marriage license .... I do believe he probably is a proper party for that reason.).

III. ANALYSIS The Opponents contend that that Virginia's Marriage Laws violate Plaintiffs' due process and equal protection rights under the United States Constitution as a matter of law. They raise facial constitutional challenges to the provision of Virginia's Constitution, and to several Virginia statutes, that prohibit same-sex marriage. Alternatively, Plaintiffs argue that if the Court declines to grant summary judgment, it should issue a preliminary injunction compelling Defendants to cease enforcement of Virginia's Marriage Laws as against these Plaintiffs pending a final judgment. The Proponents oppose these motions, and defend the constitutionality of Virginia's Marriage Laws. They maintain that the Commonwealth has the right to define marriage according to the judgment of its citizens.

A. PRELIMINARY CHALLENGES Before turning to the more substantive arguments, the Court first addresses two preliminary challenges advanced by Defendant Schaefer and IntervenorDefendant McQuigg. The first challenge asks whether Plaintiffs have standing to maintain this action. The second challenge pertains to whether sufficient doctrinal developments regarding the questions presented have evolved to overcome the possibly precedential impact of the Supreme Court's 1972 summary dismissal of a constitutional challenge to a state's same-sex marriage laws.

1. Plaintiffs have standing *7 Defendant Schaefer argues that Plaintiffs Bostic and London lack standing to bring this suit against him because they failed to submit an application to obtain a marriage license. Therefore, Defendant Schaefer contends, Plaintiffs Bostic and London suffered no injury for the purposes of standing as provided by Article III of the United States Constitution. Br. Supp. Def. Schaefer's Mot. Summ. J. 6, ECF No. 41. Defendant Schaefer also argues that Ms. Schall and Ms. Townley have not alleged any injury created by[,] or tangentially related to[,] any act or omission by him. Id. at 7. Defendant Schaefer argues that the relief requested would not correct the harms alleged by Plaintiffs Schall and Townley.

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marriage licenses and recording marriages. Va.Code 2014, 2033, 32.1267(B) (2014). Defendant Rainey is a proper defendant because she is a city official responsible for providing forms for marriage certificates. An injunction prohibiting Defendants from enforcing Virginia's Marriage Laws will allow Plaintiffs Bostic and London to obtain a marriage license in the Commonwealth, and will allow the valid marriage between Plaintiffs Schall and Townley to be recognized in the Commonwealth of Virginia. *9 IntervenorDefendant McQuigg, after adopting Defendant Rainey's former arguments, asserts that Plaintiffs lack standing because gay and lesbian individuals would be prohibited from marrying even in wake of a judicial invalidation of Article I, Section 15A of the Virginia Constitution and Virginia Code Sections 2045.2 and 2045.3. Plaintiffs seek relief not only from these provisions, however, but also from any other Virginia law that bars same-sex marriage or prohibits the State's recognition of otherwise-lawful same-sex marriages from other jurisdictions. Am. Compl., Prayer for Relief, paras. 12, ECF No. 18. If this Court issues the injunction sought by Plaintiffs, their injuries will be redressed. They will be allowed to marry, or have their marriage recognized, in Virginia. Challenges to Plaintiffs' standing are overruled.

*8 [5] The standing challenges against Plaintiffs Schall and Townley also must fail. In Virginia, currently all marriages between opposite-sex couples that have been solemnized outside of the Commonwealth are recognized as valid in the Commonwealth as long as the parties met the legal requirements for marriage in the foreign jurisdiction. Even the status of common law marriage, while prohibited in Virginia, is nevertheless accepted by the Commonwealth if the marriage was valid in the state in which it occurred. 6 [6] Plaintiffs Schall and Townley allege stigma and humiliation as a result of the enforcement of Virginia Code 2045.3. See Am. Compl. para. 34, ECF No. 18. Stigmatic injury is sometimes sufficient to support standing. See Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (finding that stigmatizing injury often caused by racial discrimination is a type of noneconomic injury that is sufficient in some circumstances to support standing). A plaintiff must first identify a concrete interest with respect to which [he or she is] personally subject to discriminatory treatment, and [t]hat interest must independently satisfy the causation requirement of [the] standing doctrine. Id. at 757 n. 22, 104 S.Ct. 3315; see also Lebron v. Rumsfeld, 670 F.3d 540, 562 (4th Cir.2012) (explaining that Article III standing based on ongoing stigma requires that a plaintiff establish the suffering of harm). Plaintiffs Schall and Townley satisfy the first requirement predicating standing on stigmatic injuries. Virginia Code 2045.3 prohibits the recognition of their valid California marriage. Similarly married opposite-sex individuals do not suffer this deprivation. Plaintiffs Schall and Townley suffer humiliation and discriminatory treatment on the basis of their sexual orientation. This stigmatic harm flows directly from current state law. See Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, , 2014 WL 116013, at *9 (N.D.Okla.2014). [7] [8] The claims of Plaintiffs Schall and Townley also satisfy the causation element required for standing. A plaintiff must establish a sufficient connection between the state official sued and the alleged injury. See Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.2001); see also Bishop v. Oklahoma, 333 Fed.Appx. 361, 365 (10th Cir.2009) (holding that the duties of the Oklahoma Governor or the Oklahoma Attorney General were insufficiently connected to the challenged Oklahoma laws). Defendant Schaefer is a proper defendant here because he is a city official responsible for issuing and denying

2. Doctrinal developments [9] The next preliminary challenge pertains to determining the appropriate impact of a specific summary disposition by the United States Supreme Court. Summary dispositions by that Court, as well as dismissals for want of a substantial federal question, must be construed as rejecting the specific challenges presented in the statement of jurisdiction, and leaving undisturbed the judgment appealed from. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (these dispositions prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions). In 1972, the Supreme Court summarily dismissed an appeal from a decision of the Supreme Court of Minnesota, which had held that 1) although a Minnesota statute defining marriage did not prohibit same-sex marriages explicitly, neither did that statute provide any authority for such marriages, and 2) the statute did not violate the Fourteenth Amendment to the United States Constitution. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185, 187 (1971), appeal dismissed 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The dismissal by the Supreme Court read, The

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jurisprudence, the Supreme Court's summary dismissal in Baker has little if any precedential effect today. Kitchen v. Herbert, 961 F.Supp.2d at , 2013 WL 6697874, at *8 (D.Utah 2013); see also McGee v. Cole, Civil Action No. 3:1324068, F.Supp.2d , , 2014 WL 321122, at *910 (S.D.W.Va. Jan. 29, 2014) (holding that the reasoning in these cases is persuasive and rejecting Baker as no longer binding). This Court concludes that doctrinal developments in the question of who among our citizens are permitted to exercise the right to marry have foreclosed the previously precedential nature of the summary dismissal in Baker. 7 The Baker summary dismissal is no longer binding.

appeal is dismissed for want of a substantial federal question. Baker, 409 U.S. at 810, 93 S.Ct. 37. Defendants here contend that because the Supreme Court found a substantial federal question lacking in Baker, this Court is precluded from exercising jurisdiction. [10] There is no dispute that such summary dispositions are considered precedential and binding on lower courts. There is also no dispute asserted that questions presented in Baker are similar to the questions presented here. Both cases involve challenges to the constitutionality of a state statute which prohibits same-sex marriage. Both challenges assert principles of due process and equal protection. The ruling of the Supreme Court of Minnesota rejected arguments largely similar to those presented by Plaintiffs. See Baker, 191 N.W.2d at 187 (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.). However, summary dispositions may lose their precedential value. They are no longer binding when doctrinal developments indicate otherwise. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n. 3 (2d Cir.1967)) (internal quotation marks omitted). *10 This Court concludes that doctrinal developments since 1971 compel the conclusion that Baker is no longer binding. The Second Circuit recognized this explicitly, holding that [e]ven if Baker might have had resonance ... in 1971, it does not today. Windsor v. United States, 699 F.3d 169, 178 (2d Cir.2012), aff'd, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (holding that Baker did not foreclose jurisdiction over review of the federal Defense of Marriage Act (DOMA)). In so holding, the Second Circuit relied upon doctrinal developments from Supreme Court decisions, including cases creating the term intermediate scrutiny in Craig v. Boren, 429 U.S. 190, 218, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (Rehnquist, J., dissenting); discussing classifications based on sex and illegitimacy in Lalli v. Lalli, 439 U.S. 259, 26465, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); and finding no rational basis for a classification of [homosexuals] undertaken for its own sake in Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Windsor, 699 F.3d at 17879. More recently, the District Court for the District of Utah concluded that after considering the significant doctrinal developments in equal protection and due process

B. PLAINTIFFS' CONSTITUTIONAL CHALLENGES TO VIRGINIA'S MARRIAGE LAWS Having resolved the preliminary challenges advanced against Plaintiffs' claims, the Court now turns to the more substantive questions presented by the parties. This Court must determine whether Virginia's Marriage Laws violate Plaintiffs' rights guaranteed to them under the Fourteenth Amendment of the United States Constitution. This Amendment provides: No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1. Plaintiffs' due process claims are addressed first. Next, the examination turns to whether Virginia's Marriage Laws violate Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment. Finally, the Court resolves whether Plaintiffs' claims brought under 42 U.S.C. 1983 have merit, and whether the Court should stay this ruling pending further guidance from the Supreme Court.

1. Plaintiffs' rights under the Due Process Clause *11 [11] The Due Process Clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal constitution from invasion by the States. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 84647, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quoting Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed.

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(1888)) (internal quotation marks omitted) (finding marriage to be most important relation in life), abrogated on other grounds, Sherrer v. Sherrer, 334 U.S. 343, 352, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Maynard, 125 U.S. at 205, 8 S.Ct. 723 (same). [13] Marriage rights are of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect. M.L.B., 519 U.S. at 116, 117 S.Ct. 555 (quoting Boddie, 401 U.S. at 376, 91 S.Ct. 780) (citations omitted). *12 The right to marry is inseparable from our rights to privacy and intimate association. In rejecting a Connecticut law prohibiting the use of contraceptives, the Court wrote of marriage's noble purposes: We deal with a right of privacy older than the Bill of Rightsolder than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Griswold, 381 U.S. at 486, 85 S.Ct. 1678. The parties before this Court appreciate the sacred principles embodied in our fundamental right to marry. Each party cherishes the commitment demonstrated in the celebration of marriage; each party embraces the Supreme Court's characterization of marriage as the most important relation in life and the foundation of the family and society, without which there would be neither civilization nor progress. Maynard, 125 U.S. at 205, 211, 8 S.Ct. 723. Regrettably, the Proponents and the Opponents of Virginia's Marriage Laws part ways despite this shared reverence for marriage. They part over a dispute regarding who among Virginia's citizenry may exercise the fundamental right to marry.

1095 (1927) (Brandeis, J., concurring)) (internal quotation marks omitted). Accordingly, the initial question is whether Plaintiffs are seeking protection for a fundamental right. The second question is whether Virginia's Marriage Laws properly or improperly compromise Plaintiffs' rights.

a. Marriage is a fundamental right [12] There can be no serious doubt that in America the right to marry is a rigorously protected fundamental right. The Supreme Court has recognized repeatedly that marriage is a fundamental right protected by both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)) (finding that choices about marriage are among associational rights this Court has ranked as of basic importance in our society[.] ); Casey, 505 U.S. at 848, 112 S.Ct. 2791 (finding marriage to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause); Turner v. Safley, 482 U.S. 78, 97, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (finding that a regulation that prohibited inmates from marrying without the permission of the warden impermissibly burdened their right to marry); Zablocki v. Redhail, 434 U.S. 374, 38384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (defining marriage as a right of liberty); Carey v. Population Servs. Int'l, 431 U.S. 678, 68485, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (finding that the right to privacy includes personal decisions relating to marriage); United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (concluding that the Court has come to regard [marriage] as fundamental); Boddie, 401 U.S. at 376, 91 S.Ct. 780 (defining marriage as a basic importance in our society); Loving, 388 U.S. at 12, 87 S.Ct. 1817 (finding prohibition on interracial marriage unconstitutional); Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (defining marriage as a right of privacy and a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (finding marriage to be a basic civil right[ ] of man); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (finding that marriage is a liberty protected by the Fourteenth Amendment); Andrews v. Andrews, 188 U.S. 14, 30, 23 S.Ct. 237, 47 L.Ed. 366 (1903) (quoting Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654

b. The Plaintiffs seek to exercise a fundamental right

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and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Casey, 505 U.S. at 851, 112 S.Ct. 2791 (1992) (second emphasis added) (quoting Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)) (internal quotation marks and citations omitted); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (our federal Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse). Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices choices, like the choices made by every other citizen, that must be free from unwarranted government interference.

Just as there can be no question that marriage is a fundamental right, there is also no dispute that under Virginia's Marriage Laws, Plaintiffs and Virginia citizens similar to Plaintiffs are deprived of that right to marry. The Proponents' insistence that Plaintiffs have embarked upon a quest to create and exercise a new (and some suggest threatening) right must be considered, but, ultimately, put aside. The reality that marriage rights in states across the country have begun to be extended to more individuals fails to transform such a fundamental right into some new creation. 8 Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia's adult citizens. They seek simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. Kitchen, 961 F.Supp.2d at , 2013 WL 6697874 at *16. This right is deeply rooted in the nation's history and implicit in the concept of ordered liberty because it protects an individual's ability to make deeply personal choices about love and family free from government interference. Id. Virginia's Marriage Laws impose a condition on this exercise. These laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse. These laws interject profound government interference into one of the most personal choices a person makes. Such interference compels careful judicial examination: *13 Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Our precedents have respected the private realm of family life which the state cannot enter. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity

c. Virginia's Marriage Laws are subject to strict scrutiny [14] In general, state regulations are presumed valid, and are upheld, when the regulations are rationally related to a legitimate state interest. Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). [15] However, strict scrutiny is imposed as substantive due process protection to those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Id. at 72021, 117 S.Ct. 2258 (quoting Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)) (internal quotation marks and citations omitted). [16] Under strict scrutiny, the regulations pass constitutional muster only if they are narrowly tailored to serve a compelling

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focus on the history of the laws that are under scrutiny. Virginia's Affirmation of Marriage Act, known as House Bill 751, was drafted in response to fears that homosexual marriage or same sex unions [are] ... directed at weakening the institution of marriage, and that defining marriage or civil unions as permissible for same sex individuals as simply an alternate form of marriage [would] radically transform the institution of marriage with serious and harmful consequences to the social order. Affirmation of Marriage Act, H.B. 751 (2004) (enacted). Concerns that schools might be compelled to teach that civil unions' or homosexual marriage should be equivalent to traditional marriage and that churches whose teachings [do] not accept homosexual behavior as moral will lose their tax exempt status, fueled the proposed legislation. Id. The promotion of tradition was evident in the Bill's language regarding the profound moral and legal difference between private behavior conducted outside the sanction ... of the law ... and granting such behavior a legal institutional status in society. Id. This radical change would trigger unforeseen legal and social consequences, and the provision of same sex unions would obscure certain basic moral values and further devalue the institution of marriage and the status of children. Id. *15 [19] The inescapable conclusion regarding the Commonwealth's interest in tradition is that an adherence to a historical definition of traditional marriage is desired to avoid radical changes that would result in the diminishing one common, long-held view of what marriage means. The Supreme Court has rejected the assertion that a prevailing moral conviction can, alone, justify upholding a constitutionally infirm law: 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, 57778, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (alteration provided) (quoting Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Stevens, J., dissenting)) (holding that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adults engaging in consensual acts in the privacy of a home); see also Kitchen, 961 F.Supp.2d at , 2013 WL 6697874, at *27 ([T]radition alone cannot form a rational basis for a law.). Our courts are duty-bound to define and protect the liberty

state interest. Id. at 721, 117 S.Ct. 2258; see also Zablocki, 434 U.S. at 388, 98 S.Ct. 673 (striking down a requirement that non-custodial parents paying child support seek court approval before marrying); Boddie, 401 U.S. at 38081, 91 S.Ct. 780 (holding that a divorce could not be denied to an indigent person who was unable to afford the filing fees). *14 Because marriage is a fundamental right, therefore, Virginia's Marriage Laws cannot be upheld unless they are justified by compelling state interests and are narrowly drawn to express only those interests. Carey, 431 U.S. at 686, 97 S.Ct. 2010; accord Zablocki, 434 U.S. at 388, 98 S.Ct. 673 (When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.). The Court turns to the three primary justifications the Proponents proffer in support of Virginia's Marriage Laws and their significant interference with Plaintiffs' freedom to exercise their fundamental right to marry: (1) tradition; (2) federalism; and (3) responsible procreation and optimal child rearing.

d. Tradition [17] Virginia has traditionally limited marriages to oppositesex relationships. The Proponents assert that preserving and perpetuating this tradition is a state interest that is sufficiently important to justify the impact of Virginia's Marriage Laws on Plaintiffs and other citizens in Virginia who are lesbian and gay. 9 [18] Proponents suggest that these state interests in tradition arise from a legitimate desire to discourage individuals from abusing marriage rights by marrying for the sole purpose of qualifying for benefits for which they would otherwise not qualify. Tr. 45:1419, ECF No. 132. 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, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). This proffer lacks any rational basis. Virginia's purported interest in minimizing marriage fraud is in no way furthered by excluding one segment of the Commonwealth's population from the right to marry based upon that segment's sexual orientation. Judicial evaluation of the importance of tradition as a state rationale for infringing upon Plaintiffs' rights must draw a

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of all, not to mandate our own moral code. Lawrence, 539 U.S. at 571, 123 S.Ct. 2472 (quoting Casey, 505 U.S. at 850, 112 S.Ct. 2791). Nearly identical concerns about the significance of tradition were presented to, and resolved by, the Supreme Court in its Loving decision. The Loving Court struck down Virginia's ban on interracial marriage despite the ban's existence since the colonial period. 388 U.S. at 6, 87 S.Ct. 1817. Notwithstanding the undeniable value found in cherishing the heritages of our families, and many aspects of the heritages of our country and communities, the protections created for us by the drafters of our Constitution were designed to evolve and adapt to the progress of our citizenry. The Supreme Court recognized this eloquently: It is ... tempting ... to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference ... when the Fourteenth Amendment was ratified. But such a view would be inconsistent with our law. Casey, 505 U.S. at 847, 112 S.Ct. 2791 (citation omitted). Tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying samesex couples the right to marry any more than it could justify Virginia's ban on interracial marriage.

The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See 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). The 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. Ibid. [T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce. Haddock v. Haddock, 201 U.S. 562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S. 586, 593 94, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (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). Windsor, 133 S.Ct. at 2691 (alterations and omission in original). 10 This Court remains mindful that the federal intervention is best exercised rarely, and that the powers regarding domestic relations properly rest with the good offices of state and local government. This deference is appropriate, and even essential. However, federal courts have intervened, properly, when state regulations have infringed upon the right to marry. The Windsor Court prefaced its analysis about deference to the state laws defining and regulating marriage by citing Loving's holding that recognized that of course, such laws must respect the constitutional rights of persons. Id. In signaling that due process and equal protection guarantees must trump objections to federal intervention, Windsor's citation to Loving is a disclaimer of enormous proportion. Bishop, 962 F.Supp.2d at , 2014 WL 116013, at *18. Similarly, in Zablocki, the Court upheld the right of prison inmates to marry, while acknowledging domestic relations as an area that has long been regarded as a virtually exclusive province of the States. 434 U.S. at 39899, 98 S.Ct. 673 (Powell, J., concurring) (quoting Sosna, 419 U.S. at 404, 95 S.Ct. 553) (internal quotation marks omitted). In Windsor, our Constitution was invoked to protect the individual rights of gay and lesbian citizens, and the propriety

e. The appropriate balance regarding federalism [20] The Proponents also assert that Virginia maintains a significant interest in reserving the power to regulate essential state matters, and to shield the exercise of that power from intrusive, improper federal interference. The Supreme Court recently addressed the long-standing deference our federal government pays to state-law policy decisions with respect to domestic relations: *16 State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving, 388 U.S. 1, 87 S.Ct. 1817 (1967); but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States. Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

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submitted to vote; they depend on the outcome of no elections. 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Accordingly, this Court must perform its constitutional duty in deciding the issues currently presented before it. Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations, judicial vigilance is a steady beacon searching for an evermore perfect justice and truer freedoms for our country's citizens. Intervention under the circumstances presented here is warranted, and compelled.

of such protection led to upholding state law against conflicting federal law. The propriety of invoking such protection remains compelling when faced with the task of evaluating the constitutionality of state laws. This propriety is described eloquently in a dissenting opinion authored by the Honorable Antonin Scalia: *17 As I have said, the real rationale of [the Windsor opinion] is that DOMA is motivated by bare ... desire to harm couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Windsor, 133 S.Ct. at 2709 (Scalia, J., dissenting) (alteration provided) (omission in original) (quoting Windsor, 133 S.Ct. at 2691) (citations and some internal quotation marks omitted); see also Kitchen, 961 F.Supp.2d at , 2013 WL 6697874 at *7 (agreeing with this analysis). The Proponents' related contention that judicial intervention should be suspended in deference to the possibility that the Virginia legislature and Virginia's electorate might resolve Plaintiffs' claims also lacks merit. The proposal disregards the gravity of the ongoing significant harm being inflicted upon Virginia's gay and lesbian citizens. Moreover, the proposal ignores the needless accumulation of that pain upon these citizens, and the stigma, humiliation and prejudice that would be visited upon these citizens' children, as they continue to wait for this possibility to become realized. 11 When core civil rights are at stake the judiciary must act. As the Supreme Court said in West Virginia State Board of Education v. Barnette: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be

f. The for-the-children rationale [21] The Proponents of Virginia's Marriage Laws contend that responsible procreation and optimal child rearing are legitimate interests that support the Commonwealth's efforts to prohibit some individuals from marrying. Counsel for IntervenorDefendant asserted at oral argument that marriage is about children. Tr. 49:2022, ECF No. 132. He asserted that the Commonwealth has a legitimate interest in trying to tie those children as best it can or encourage without being coercive those children to enter into a union with a loving mom and dad, specifically the mom and dad [who] are responsible for bringing them into this world. Id. at 59:20 24. This counsel also argued that the Commonwealth has a legitimate interest in celebrating the diversity of the sexes, but failed to establish how prohibiting some Virginia citizens from marrying is related rationally to such a celebration. Id. at 52:910. *18 In sum, Proponents contend that Virginia should be permitted to rationally conclude that, all things being equal, it is better for the natural parents to also be the legal parents. Br. Supp. Def. Rainey's Mot. Summ. J. 23, ECF No. 39. The Amici Professors refer to evidence that purports to demonstrate that children benefit from the unique parenting contributions of opposite-sex parents. The Amici Professors reject recent studies that found that children raised by gay and lesbian parents are no different from children raised by intact biological parents, asserting that the studies are empirically undermined by methodological limitations. This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting

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honor, and yearn for, the sacred values and dignity that other individuals celebrate when they enter into marital vows in Virginia, and they ask to no longer be deprived of the opportunity to share these fundamental rights. *19 The for-the-children rationale also fails because it would threaten the legitimacy of marriages involving postmenopausal women, infertile individuals, and individuals who choose to refrain from procreating. See Bishop, 962 F.Supp.2d at , 2014 WL 116013, at *30. The for-the-children rationale rests upon an unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents. Forty years ago a similarly unfortunate presumption was proffered to defend a law in Illinois that removed children from the custody of unwed fathers upon the death of the mother. Stanley v. Illinois, 405 U.S. 645, 653, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Proponents of the law asserted that Stanley and all other unmarried fathers can reasonably be presumed to be unqualified to raise their children. Id. (emphasis added). The Supreme Court said that such a startling presumption cannot stand. Id. at 657, 92 S.Ct. 1208. The Stanley Court's holding has been construed to mean that the State could not conclusively presume that any particular unmarried father was unfit to raise his child; the Due Process Clause required a more individualized determination. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 645, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (discussing the holding in Stanley v. Illinois ). [T]he demographic changes of the past century make it difficult to speak of an average American family. Troxel v. Granville, 530 U.S. 57, 63, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Attempting to legislate a state-sanctioned preference for one model of parenting that uses two adults over another model of parenting that uses two adults is constitutionally infirm. The composition of families varies greatly from household to household, id., and there exist successful, welladjusted children from all backgrounds. Certainly same-sex couples, like other parenting structures, can make quality and successful efforts in raising children. That is not in question. Amici Profs.' Br. Supp. Defs.' Mots. Summ. J. 11, ECF No. 641. This Court endorses the portion of the oral argument from counsel for IntervenorDefendant in which he acknowledged that marriage exists to provide structure and stability for the benefit of the child, giving them every opportunity possible to know, to be loved by and raised by a mom and dad who

marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia's Marriage Laws betrays that interest. E. S.-T., like the thousands of children being raised by same-sex couples, is needlessly deprived of the protection, the stability, the recognition and the legitimacy that marriage conveys. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 967 (N.D.Cal.2010). Gay and lesbian couples are as capable as other couples of raising well-adjusted children. See id. at 980 (Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted). In the field of developmental psychology, the research supporting this conclusion is accepted beyond serious debate. Id. 12 Additionally, the purported for-the-children rationale fails to justify Virginia's ban on same-sex marriage because recognizing a gay individual's fundamental right to marry can in no way influence whether other individuals will marry, or how other individuals will raise families. Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included. Bishop, 962 F.Supp.2d at , 2014 WL 116013, at *29. As was recognized in Kitchen: [I]t defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. 961 F.Supp.2d at , 2013 WL 6697874, at *25. Counsel for IntervenorDefendant McQuigg proclaimed at oral argument that [P]laintiffs are asking this court to ... strike down the marriage laws that have existed now for 400 years ... and make a policy in this state that mothers and fathers [do not] matter. Tr. at 53:58, ECF No. 132. This is a profound distortion of what Plaintiffs seek. Plaintiffs

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[24] However, even without a finding that a fundamental right is implicated, the Marriage Laws fail under this Clause. The Equal Protection 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, Tex. v. Cleburne Living Or., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). The Clause places no limitation on a state's power to treat dissimilar people differently. Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir.1995) ([It] does not mean that persons in different circumstances cannot be treated differently under the law.). These constitutional protections are invoked instead when a state statute treats persons who are standing in the same relation to the statute in a different manner, either on its face or in practice. Individuals need only be similarly situated for the purposes of the challenged law. Id. (It requires that the states apply each law, within its scope, equally to persons similarly situated, and that any differences of application must be justified by the law's purpose.).

are responsible for their existence. Tr. 59:610, ECF No. 132. Same-sex couples can be just as responsible for a child's existence as the countless couples across the nation who choose, or are compelled to rely upon, enhanced or alternative reproduction methods for procreation. 13 Finally, the for-the-children rationale misconstrues the dignity and values inherent in the fundamental right to marry as primarily a vehicle for responsibly breeding natural offspring. 14 Such misconstruction ignores that the profound non-procreative elements of marriage, including expressions of emotional support and public commitment, spiritual significance, and expression of personal dedication. Turner, 482 U.S. at 9596, 107 S.Ct. 2254. In recognizing that prison inmates have the right to wed notwithstanding that incarceration may prevent them from consummating the marriage, the Turner Court heralded the legal, economic, and social benefits of marriage, teaching that marital status often is a precondition to the receipt of government benefits ..., property rights ..., and other, less tangible benefits. Id. at 96, 107 S.Ct. 2254. *20 In sum, the for-the-children rationale fails to justify denying an individual the benefits and dignity and value of celebrating marriage simply because of the gender of the person whom that individual loves. The state's compelling interests in protecting and supporting our children are not furthered by a prohibition against same-sex marriage.

The parties do not dispute that same-sex couples may be similarly situated to opposite-sex couples with respect to their love and commitment to one another. However, the Proponents contend that the Commonwealth's primary purpose for recognizing and regulating marriage is responsible procreation and child-rearing. By construing the definition of these activities to refer to the capacity of a 2. Plaintiffs' Rights under the Equal Protection Clause [22] [23] The Equal Protection Clause of the Fourteenth married couple to naturally produce children, the Proponents assert that same-sex couples must be viewed as fundamentally Amendment provides that no state shall deny to any person different from heterosexual couples. within its jurisdiction the equal protection of its laws. U.S. Const. amend. XIV, 1. Just as the analysis regarding *21 This recent embrace of natural procreation as the the claims involving substantive due process began, the primary inspiration and purpose for Virginia's Marriage Laws evaluation of whether certain legislation violates the Equal is inconsistent with prior rationalizations for the laws. This Protection Clause commences with determining whether the purpose was effectively disavowed by the legislation itself, challenged law interferes significantly with a fundamental which declared that marriage should be limited to oppositeright. If so, the legislation cannot be upheld unless it is sex couples whether or not they are reproductive in effect supported by sufficiently important state interests and is or motivation. Affirmation of Marriage Act, HB 751 (2004) closely tailored to effectuate only those interests. Zablocki, (enacted). 434 U.S. at 388, 98 S.Ct. 673. For the reasons provided above, this Court concludes that Virginia's Marriage Laws significantly interfere with a fundamental right, and are inadequately tailored to effectuate only those interests. Therefore, the laws are unconstitutional under the Equal Protection Clause as well. A more just evaluation of the scope of Virginia's Marriage Laws at issue establishes that these laws impact Virginia's adult citizens who are in loving and committed relationships and want to be married under the laws of Virginia. The laws at issue target a subset (gay and lesbian individuals) who

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U.S. 91, 9899, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982). This intermediate level of scrutiny upholds state laws only if they are substantially related to an important governmental objective. Clark, 486 U.S. at 461, 108 S.Ct. 1910. *22 The least rigorous kind of scrutiny is reserved for legislative classifications that are not suspect. This kind of legislation passes constitutional muster if it bears a rational relationship to some legitimate end. Romer, 517 U.S. at 631, 116 S.Ct. 1620. Virginia's Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs' compelling arguments that the Laws should be subjected to heightened scrutiny. 16 The Proponents' contentions that a rational relationship exists between Virginia's Marriage Laws at issue and a legitimate purpose have been considered carefully. These contentions have been evaluated fully under the analysis of Plaintiffs' substantive due process claims. The legitimate purposes proffered by the Proponents for the challenged lawsto promote conformity to the traditions and heritage of a majority of Virginia's citizens, to perpetuate a generally-recognized deference to the state's will pertaining to domestic relations laws, and, finally, to endorse responsible procreationshare no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia's gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.

are similarly situated to Virginia's heterosexual individuals, and deprive that subset of the opportunity to marry. Even assuming (but not deciding) that the Marriage Laws do not significantly interfere with the fundamental rights of the class created by the laws (gay and lesbian individuals), this Court must nevertheless determine how closely to scrutinize the challenged regulation. Deference to Virginia's judgment on this question is unwarranted, because there are reasonable grounds to suspect prejudice against discrete and insular minorities ... which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities [.] United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Although the parties disagree 15 on the extent of animus that has been directed toward gay and lesbian people, for centuries there have been powerful voices to condemn homosexual conduct as immoral. Lawrence, 539 U.S. at 571, 123 S.Ct. 2472. This moral condemnation continues to manifest in Virginia in state-sanctioned activities. The Virginia legislature has passed a law permitting adoption agencies to refuse adoptions based on the sexual orientation of the prospective parents. See Va.Code 63.21709.3 (2014). Virginia's former Attorney General directed colleges and universities in the Commonwealth to eliminate protections that had been in place regarding sexual orientation, gender identity, gender expression, or like classification from the institutions' non-discrimination policies. Lustig Decl. Ex. J, at 1, ECF No. 2615. This record alone gives rise to suspicions of prejudice sufficient to decline to defer to the state on this matter. It is well-settled that the Supreme Court has developed levels of scrutiny for purposes of deciding whether a state law discriminates impermissibly against members of a class in violation of the Equal Protection Clause, depending upon the kind of class affected. The greatest level of scrutiny is reserved for race or national origin classifications. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). An intermediate level of scrutiny has been employed by the Court as well, and is reserved for laws that employ quasisuspect classifications such as gender, Craig, 429 U.S. at 197, 97 S.Ct. 451, or illegitimacy, Mills v. Habluetzel, 456

3. Plaintiffs are entitled to relief under Section 1983 [25] To state a claim for relief in an action brought under Section 1983, Plaintiffs must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 4950, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). The Proponents declined to challenge Plaintiffs' Section 1983 claims. The validity of these claims warrant brief review.

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more meaningful freedoms for our citizens has brought us continually to a deeper understanding of the first three words in our Constitution: we the people. We the People have become a broader, more diverse family than once imagined. 17 Justice has often been forged from fires of indignities and prejudices suffered. 18 Our triumphs that celebrate the freedom of choice are hallowed. 19 We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect. Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: It can not have failed to strike you that these men ask for just ... the same thingfairness, and fairness only. This, so far as in my power, they, and all others, shall have. 20 The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court's power, they and all others shall have.

[26] The ultimate issue in determining whether a person is subject to suit under [Section] 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights fairly attributable to the State? RendellBaker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). Plaintiffs allege that Virginia's Marriage Laws, and their enforcement by the state officials who are named defendants, violate their rights under the Equal Protection Clause of the Fourteenth Amendment. Because Virginia's Marriage Laws are herein struck as unconstitutional, and there is sufficient state action to permit relief under the Federal Due Process and Equal Protection Clauses, Plaintiffs' Section 1983 claims are well-taken.

IV. CONCLUSION Each of the parties before the Court recognizes that marriage is a sacred social institution. The commitment two individuals enter into to love, support each other, and to possibly choose to nurture children enriches our society. Although steeped in a rich, tradition- and faith-based legacy, Virginia's Marriage Laws are an exercise of governmental power. For those who choose to marry, and for their children, Virginia's laws ensures that marriage provides profound legal, financial, and social benefits, and exacts serious legal, financial, and social obligations. The government's involvement in defining marriage, and in attaching benefits that accompany the institution, must withstand constitutional scrutiny. Laws that fail that scrutiny must fall despite the depth and legitimacy of the laws' religious heritage. *23 The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family. Ultimately, this is consistent with our nation's traditions of freedom. [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, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Our nation's uneven but dogged journey toward truer and

ORDER The Court finds Va. Const. Art. I, 15A, Va.Code 20 45.2, 2045.3, and any other Virginia law that bars samesex marriage or prohibits Virginia's recognition of lawful same-sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution. The Court GRANTS Plaintiffs' Motion for Summary Judgment (ECF No. 25), GRANTS Plaintiffs Motion for Preliminary Injunction (ECF No. 27) and DENIES Defendant Schaefer's and IntervenorDefendant's Motions for Summary Judgment (ECF Nos. 38 and 40). The Court ENJOINS the Commonwealth from enforcing Sections 20 45.2 and 2045.3 of the Virginia Code and Article I, 15A of the Virginia Constitution to the extent these laws prohibit a person from marrying another person of the same gender.

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*24 Counsel for Plaintiffs, Defendants, and Intervenor Defendant are ordered to file proposed Judgments for the Court's consideration. These proposals shall be filed by March 14, 2014. IT IS SO ORDERED.

In accordance with the Supreme Court's issuance of a stay in Kitchen v. Herbert, and consistent with the reasoning provided in Bishop, this Court slays execution of this injunction pending the final disposition of any appeal to the Fourth Circuit Court of Appeals.

Footnotes

1 2 3 4 5 6 7 8

Mildred Loving, Loving for All, Public Statement on the 40th Anniversary of Loving v. Virginia (June 12, 2007). Unless otherwise noted, Virginia's Marriage Laws refer to Article I, Section 15A of the Virginia Constitution, the statutory provisions cited herein, and any other law relating to marriage within the Commonwealth of Virginia. After those parties were dismissed as defendants, then-pending motions to dismiss from those parties were dismissed as moot. These benefits include, but are not limited to, protections regarding how and when a marriage may be allowed to dissolve, which acknowledge the importance of families and children in Virginia. Va.Code 2091 (2014). The extension of those protections and benefits has sometimes occurred after anguish and the unavoidable intervention of federal jurisprudence. See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (balancing the state's right to regulate marriage against the individual's rights to equal protection and due process under the law). Marriage Requirements, Virginia Department of Health, http:// www.vdh.state.va.us/vital_records/marry.htm (last visited Feb. 13, 2014); see also Marriage in Virginia, Virginia State Bar: An Agency of the Supreme Court of Virginia, http://www.vsb.org/site/ publications/marriage-in-virginia (last visited Feb. 13, 2014). Some federal courts have ruled that Baker remains binding. See Massachusetts v. HHS, 682 F.3d 1, 8 (1st Cir.2012); Sevcik v. Sandoval, 911 F.Supp.2d 996, 100203 (D.Nev.2012); Wilson v. Ake, 354 F.Supp.2d 1298, 130405 (M.D.Fla.2005). This Court respectfully disagrees and cites with approval the thorough reasoning on the issue in Windsor, Kitchen, and Bishop. Nor should this doctrinal development be construed as any dilution of the sanctity of marriage. Similar fears were voiced and ultimately quieted after Virginia unsuccessfully defended its anti-miscegenation laws by referring to a need to preserve the racial integrity of its citizens, and to prevent the corruption of blood, a mongrel breed of citizens, and the obliteration of racial pride.... Loving, 388 U.S. at 7, 87 S.Ct. 1817 (quoting Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, 756 (1955)). At oral argument, counsel for IntervenorDefendant McQuigg contended that [m]arriage is not constitutional because it's ancient. It's ancient because it is rational and it [has] animated the laws in this country and in this Commonwealth since the very beginning. Tr. 52:14, ECF No. 132. While no one disputes that some persons have enjoyed the right and privilege to marry since ancient times, beliefs based on ancient roots that this exercise should properly remain limited to one portion of our population, however dearly held, contribute little to the judicial endeavor of evaluating whether the purported state interests in such timelines are sufficiently important to rationalize the impact of the Marriage Laws under current scrutiny. Other profound infringements upon our citizens' rights have been explained as a consequence of heritage, and those explanations have been found wanting. Interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia. Casey, 505 U.S. at 84748, 112 S.Ct. 2791; see also Perry v. Schwarzenegger, 704 F.Supp.2d 921, 992 (N.D.Cal.2010) (recognizing that the Supreme Court rejected race restrictions despite their historical prevalence because the restrictions stood in stark contrast to the concepts of liberty and choice inherent the right to marry). In Windsor the Supreme Court struck down Section 3 of DOMA because it violated the due process and equal protection principles of the Fifth Amendment by denying federal recognition of a marriage lawfully entered into in another jurisdiction. 133 S.Ct. at 2693. The Court ruled that DOMA improperly instructed all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. Id. at 2696. In Virginia, this proposal would require majorities in both chambers of the General Assembly to vote, in two separate legislative years, before and after a general election of the members of the House of Delegates, to repeal Virginia's constitutional amendment banning same-sex marriage, as well as a subsequent majority vote by the electorate at a general election. Va. Const. art. XII, 1. See, e.g., Brief for Amici The Am. Psychological Ass'n, et al. at 1826, United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (No. 12307); Brief for Amici The Am. Psychological Ass'n, et al. at 2230, Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) (No. 12144); Brief for Amicus The Am. Sociological Ass'n at 614, United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (No. 12307); Brief for Amicus The Am. Sociological Ass'n at 6

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14 15 16

14, Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) (No. 12144). This Court notes that the Amici Professors in this case did not refute this research, but represented only that more research would be beneficial. Even assuming as true, for argument's sake, the notion that some same-sex couples might be worse parents than some oppositesex couples, [a] law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation, is lacking in the first principles of due process. Skinner, 316 U.S. at 545, 62 S.Ct. 1110 (emphasis added). IntervenorDefendant asserted at oral argument that but for children there would be no need of any institution concerned with sex. Tr. at 50:89, ECF No. 132. But the Supreme Court has already held that 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, 123 S.Ct. 2472. See Tr. 62:1011, ECF No. 132 ([P]laintiffs can prove and bring forth no history of discrimination.). Although this Court need not decide whether Virginia's Marriage Laws warrant heightened scrutiny, it would be inclined to so find. See Perry, 704 F.Supp.2d at 997 ([S]trict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.), aff'd sub nom. Perry v. Brown, 671 F.3d 1052, 108082, 1095 (9th Cir.2012), vacated for want of standing sub nom. Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 2668, 186 L.Ed.2d 768 (2013); SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 48384 (9th Cir.2014) (holding that Windsor compels heightened scrutiny of a lawyer's peremptory strike of jurors based on their sexual orientation). See U.S. CONST. amend. XV (granting African American men the right to vote); U.S. CONST. amend XIX (granting women the right to vote). See Powell v. State of Ala., 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (guaranteeing legal counsel in criminal proceedings in state and federal courts); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (prohibiting courts from enforcing restrictive covenants that prevent people of a certain race from owning or occupying property); Brown v. Board of Ed. of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (allowing desegregation of schools); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (finding defendants in criminal cases have an absolute right to counsel); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (finding that any business participating in interstate commerce would be required to follow all rules of the federal civil rights legislation); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (finding prohibition on interracial marriage unconstitutional); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (finding for the first time that a law that discriminates against women is unconstitutional); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (striking down a federal statute that automatically granted male members of the uniformed services housing and benefits for their wives, but required female members to demonstrate the actual dependency of their husbands to qualify for the same benefit); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (adopting a heightened scrutiny standard of review to evaluate legal distinctions based on gender); Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) (invalidating Alabama's height and weight requirements for prison guards that have the effect of excluding the majority of female candidates); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (finding affirmative action unfair if it resulted in reverse discrimination); United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (ruling that the all-male Virginia Military Institute's discriminatory admissions policy violated women's equal protection rights). See Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (implying a right to privacy in matters of contraception between married people); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (protecting an individual's choice to marry the person he or she loves); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (finding an implied right to privacy protects a woman's choice in matters of abortion); Cruzan by Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (finding that while the Constitution protects a person's right to reject lifepreserving medical treatment (their right to die), states can regulate that interest if the regulation is reasonable). Letter from Abraham Lincoln to the Hon. Leonard Swett (May 30, 1860), in 4 The Collected Works of Abraham Lincoln 57 (Roy P. Basler et al. eds.1953).

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2014 WL 556729 Only the Westlaw citation is currently available. United States District Court, W.D. Kentucky, at Louisiville. Gregory BOURKE, et al., Plaintiffs v. Steve BESHEAR, et al., Defendants. Civil Action No. 3:13CV750H. | Feb. 12, 2014. | Opinion Continuing Stay March 19, 2014. Synopsis Background: Four same-sex couples validly married outside Kentucky brought 1983 action challenging constitutionality of Kentucky's denial of recognition for valid same-sex marriages.

Brian Thomas Judy, Clay A. Barkley, Kentucky Attorney GeneralCivil & Environmental Law Div., Frankfort, KY, for Defendants. Opinion MEMORANDUM OPINION JOHN G. HEYBURN II, District Judge. *1 Four same-sex couples validly married outside Kentucky have challenged the constitutionality of Kentucky's constitutional and statutory provisions that exclude them from the state recognition and benefits of marriage available to similarly situated opposite-sex couples. While Kentucky unquestionably has the power to regulate the recognition of civil marriages, those regulations must comply with the Constitution of the United States. This court's role is not to impose its own political or policy judgments on the Commonwealth or its people. Nor is it to question the importance and dignity of the institution of marriage as many see it. Rather, it is to discuss the benefits and privileges that Kentucky attaches to marital relationships and to determine whether it does so lawfully under our federal constitution. From a constitutional perspective, the question here is whether Kentucky can justifiably deny same-sex spouses the recognition and attendant benefits it currently awards opposite-sex spouses. For those not trained in legal discourse, the questions may be less logical and more emotional. They concern issues of faith, beliefs, and traditions. Our Constitution was designed both to protect religious beliefs and prevent unlawful government discrimination based upon them. The Court will address all of these issues. In the end, the Court concludes that Kentucky's denial of recognition for valid same-sex marriages violates the United States Constitution's guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky's statutes and constitutional amendment that mandate this denial are unconstitutional.

Holdings: The District Court, John G. Heyburn II, J., held that: [1] rational basis review applied; [2] Kentucky's failure to recognize marriages of same-sex couples validly married outside of Kentucky treated gay and lesbian persons differently in a way that demeaned them; and [3] Kentucky's interest in preserving state's institution of traditional marriage, standing alone, was not rational basis.

Judgment for plaintiffs.

West Codenotes Held Unconstitutional Ky. Const. 233A, KRS 402.005, 402.020(1)(d), 402.040(2), 402.045. Attorneys and Law Firms Dawn R. Elliott, Fauver Law Office, Daniel J. Canon, Laura E. Landenwich, Leonard J. Dunman, IV, Louis Paz Winner, Clay Daniel Walton Adams PLC, Shannon Renee Fauver, Fauver Law Office, Louisville, KY, for Plaintiffs.

I. No case of such magnitude arrives absent important history and narrative. That narrative necessarily discusses (1) society's evolution on these issues, (2) a look at those who

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Five years later, the Massachusetts Supreme Judicial Court declared that the state's own ban on same-sex marriage violated their state constitution. Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 969 (2003). In May 2004, Massachusetts began marrying same-sex couples. In response, anti-same-sex marriage advocates in many states initiated campaigns to enact constitutional amendments to protect traditional marriage. 4

now demand their constitutional rights, and (3) an explication of their claims. For most of Kentucky's history, the limitation of marriage to opposite-sex couples was assumed and unchallenged. Those who might have disagreed did so in silence. But gradual changes in our society, political culture and constitutional understandings have encouraged some to step forward and assert their rights.

A. In 1972, two Kentucky women stepped forward to apply for a marriage license. The Kentucky Supreme Court ruled that they were not entitled to one, noting that Kentucky statutes included neither a definition of marriage nor a prohibition on same-sex marriage. Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky.App.1973). The court defined marriage according to common usage, consulting several dictionaries. It held that no constitutional issue was involved and concluded, In substance, the relationship proposed ... is not a marriage. Id. at 590. This view was entirely consistent with the thenprevailing state and federal jurisprudence. See Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972); Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499, 501 (N.Y.Spec. Term 1971). A lot has changed since then. Twenty-one long years later, the Hawaii Supreme Court first opened the door to same-sex marriage. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 61 (1993) (ruling that the state's prohibition on same-sex marriage was discriminatory under the Hawaii Constitution and remanding to allow the state to justify its position). The reaction was immediate and visceral. In the next few years, twenty-seven states passed anti-samesex marriage legislation, 1 and Congress passed the Defense of Marriage Act (DOMA). 2 *2 In 1998, Kentucky became one of those states, enacting new statutory provisions that (1) defined marriage as between one man and one woman, K.R.S. 402.005; (2) prohibited marriage between members of the same sex, K.R.S. 402.020(1)(d); (3) declared same-sex marriages contrary to Kentucky public policy, K.R.S. 402.040(2); and (4) declared same-sex marriages solemnized out of state void and the accompanying rights unenforceable, K.R.S. 402.045. 3

Like-minded Kentuckians began a similar campaign, arguing that although state law already prohibited same-sex marriage, a constitutional amendment would foreclose any possibility that a future court ruling would allow same-sex marriages to be performed or recognized in Kentucky. See S. DEBATE, 108TH CONG., 2ND SESS. (Ky. 2004), ECF No. 386. The legislature placed such an amendment on the ballot. It contained only two sentences: Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. KY. CONST. 233A. Consequently, the amendment and Kentucky's statutes have much the same effect. On November 2, 2004, approximately 74% of participating voters approved the Amendment. 5 Kentucky's same-sex marriage legal framework has not changed since. In the last decade, however, a virtual tidal wave of legislative enactments and judicial judgments in other states have repealed, invalidated, or otherwise abrogated state laws restricting same-sex couples' access to marriage and marriage recognition. 6

B. In many respects, Plaintiffs here are average, stable American families. Gregory Bourke and Michael Deleon reside in Louisville, Kentucky and have been together for 31 years. They were lawfully married in Ontario, Canada in 2004 and have two minor children who are also named Plaintiffs: a 14year old girl; and a 15yearold boy. Jimmy Meade and Luther

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Barlowe reside in Bardstown, Kentucky and have been together 44 years. They were lawfully married in Davenport, Iowa in 2009. Randell Johnson and Paul Campion reside in Louisville, Kentucky and have been together for 22 years. They were lawfully married in Riverside, California in 2008 and have four minor children who are named Plaintiffs: twin 18yearold boys; a 14yearold boy; and a 10 yearold girl. Kimberly Franklin and Tamera Boyd reside in Cropper, Kentucky. 7 They were lawfully married in Stratford, Connecticut in 2010. Collectively, they assert that Kentucky's legal framework denies them certain rights and benefits that validly married opposite-sex couples enjoy. For instance, a same-sex surviving spouse has no right to an inheritance tax exemption and thus must pay higher death taxes. They are not entitled to the same healthcare benefits as opposite-sex couples; a samesex spouse must pay to add their spouse to their employerprovided health insurance, while opposite-sex spouses can elect this option free of charge. Same-sex spouses and their children are excluded from intestacy laws governing the disposition of estate assets upon death. Same-sex spouses and their children are precluded from recovering loss of consortium damages in civil litigation following a wrongful death. Under Kentucky's workers compensation law, samesex spouses have no legal standing to sue and recover as a result of their spouse's fatal workplace injury. *3 Moreover, certain federal protections are available only to couples whose marriage is legally recognized by their home state. For example, a same-sex spouse in Kentucky cannot take time off work to care for a sick spouse under the Family Medical Leave Act. 29 C.F.R. 825.122(b). In addition, a same-sex spouse in Kentucky is denied access to a spouse's social security benefits. 42 U.S.C. 416(h)(1)(A)(i). No one denies these disparities. Finally, Plaintiffs assert additional non-economic injuries as well. They say that Kentucky's laws deny them a dignity and status of immense import, stigmatize them, and deny them the stabilizing effects of marriage that helps keep couples together. Plaintiffs also allege injuries to their children including: (1) a reduction in family resources due to the State's differential treatment of their parents, (2) stigmatization resulting from the denial of social recognition and respect, (3) humiliation, and (4) harm from only one parent being able to be listed as an adoptive parentthe other being merely their legal guardian.

C. Plaintiffs advance six primary claims under 42 U.S.C. 1983: (1) deprivation of the fundamental right to marry in violation of the Due Process Clause of the Fourteenth Amendment; (2) discrimination on the basis of sexual orientation in violation of the Equal Protection Clause of the Fourteenth Amendment; 8 (3) discrimination against same-sex couples in violation of the freedom of association guaranteed by the First Amendment; (4) failure to recognize valid public records of other states in violation of the Full Faith and Credit Clause of Article IV, Section 1; (5) deprivation of the right to travel in violation of the Due Process Clause of the Fourteenth Amendment; and (6) establishment of a religious definition of marriage in violation of the Establishment Clause of the First Amendment. 9 Plaintiffs seek an order enjoining the State from enforcing the pertinent constitutional and statutory provisions. While Plaintiffs have many constitutional theories, the Fourteenth Amendment's Equal Protection Clause provides the most appropriate analytical framework. 10 If equal protection analysis decides this case, the Court need not address any others. No one disputes that the same-sex couples who have brought this case are treated differently under Kentucky law than those in comparable opposite-sex marriages. No one seems to disagree that, as presented here, the equal protection issue is purely a question of law. The Court must decide whether the Kentucky Constitution and statutes violate Plaintiffs' federal constitutional rights.

II. *4 [1] Before addressing the substance of equal protection analysis, the Court must first determine the applicable standard of review. Rational basis review applies unless Kentucky's laws affect a suspect class of individuals or significantly interfere with a fundamental right. Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978).

A. The Kentucky provisions challenged here impose a classification based on sexual orientation. Barely seven

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does not impair their ability to contribute to society. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). *5 All of these arguments have merit. To resolve the issue, however, the Court must look to Windsor and the Sixth Circuit. In Windsor, no clear majority of Justices stated that sexual orientation was a suspect category.

months ago, the Supreme Court issued a historic opinion applying equal protection analysis to federal non-recognition of same-sex marriages. United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). 11 Although the majority opinion covered many topics, it never clearly explained the applicable standard of review. Some of Justice Kennedy's language corresponded to rational basis review. See id. at 2696 (no legitimate purpose overcomes the purpose and effect to disparage and to injure....). However, the scrutiny that the Court actually applied does not so much resemble it. See id. at 2706 (Scalia, J., dissenting) (the majority does not apply strict scrutiny, and [although] its central propositions are taken from rational basis cases ... the Court certainly does not apply anything that resembles that deferential framework.) (emphasis in original). So, we are left without a clear answer. The Sixth Circuit has said that sexual orientation is not a suspect classification and thus is not subject to heightened scrutiny. Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir.2012) (citing Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir.2006)). Though Davis concerned slightly different circumstances, it would seem to limit the Court's independent assessment of the question. Accord Bassett v. Snyder, 951 F.Supp.2d 939, 961 (E.D.Mich.2013). It would be no surprise, however, were the Sixth Circuit to reconsider its view. Several theories support heightened review. Davis based its decision on a line of cases relying on Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which has since been overruled by Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (Bowers was not correct when it was decided, and it is not correct today.). 12 Recently, several courts, including the Ninth Circuit, have held that classifications based on sexual orientation are subject to heightened scrutiny. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 483 (9th Cir.2014) (finding that Windsor employed heightened scrutiny). Moreover, a number of reasons suggest that gay and lesbian individuals do constitute a suspect class. They seem to share many characteristics of other groups that are afforded heightened scrutiny, such as historical discrimination, immutable or distinguishing characteristics that define them as a discrete group, and relative political powerlessness. See Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). Further, their common characteristic

B. Supreme Court jurisprudence suggests that the right to marry is a fundamental right. See Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (Marriage is one of the basic civil rights of man, fundamental to our existence and survival (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942))); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (the right to marry is a central part of Due Process liberty); Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888) (marriage creates the most important relation in life). The right to marry also implicates the right to privacy and the right to freedom of association. Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (marriage involves a right of privacy older than the Bill of Rights); M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (Choices about marriage ... are among associational rights this Court has ranked of basic importance in our society and are protected under the Fourteenth Amendment (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971))). Despite this comforting language, neither the Supreme Court nor the Sixth Circuit has stated that the fundamental right to marry includes a fundamental right to marry someone of the same sex. Moreover, Plaintiffs do not seek the right to marry in Kentucky. Rather, they challenge the State's lack of recognition for their validly solemnized marriages. 13 To resolve the issue, the Court must again look to Windsor. In Windsor, the Supreme Court did not clearly state that the non-recognition of marriages under Section 3 of DOMA implicated a fundamental right, much less significantly interfered with one. Therefore, the Court will apply rational basis review. Ultimately, the result in this case is unaffected by the level of scrutiny applied.

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couples, Section 3 of DOMA violate[d] basic due process and equal protection principles applicable to the Federal Government. Windsor, 133 S.Ct. at 2693. His reasoning establishes certain principles that strongly suggest the result here. 14 [2] The first of those principles is that the actual purpose of Kentucky's laws is relevant to this analysis to the extent that their purpose and principal effect was to treat two groups differently. Id. As described so well by substituting our particular circumstances within Justice Kennedy's own words, that principle applies quite aptly here: [Kentucky's laws'] principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. *7 Id. at 2694. The legislative history of Kentucky's laws clearly demonstrates the intent to permanently prevent the recognition of same-sex marriage in Kentucky. 15 Whether that purpose also demonstrates an obvious animus against same-sex couples may be debatable. But those two motivations are often different sides of the same coin. The second principle is that such an amendment demeans one group by depriving them of rights provided for others. As Justice Kennedy would say: Responsibilities, as well as rights, enhance the dignity and integrity of the person. And [Kentucky's laws] contrive[ ] to deprive some couples [married out of state], but not other couples [married out of state], of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, [Kentucky's laws] force[ ] same-sex couples to live as married for the purpose of [federal law] but unmarried for the purpose of [Kentucky] law.... This places samesex couples [married out of state] in an unstable position of being in a secondtier marriage [in Kentucky]. The differentiation demeans the couple, whose moral and sexual choices the

C. *6 Under this standard, the Court must determine whether these Kentucky laws are rationally related to a legitimate government purpose. Plaintiffs have the burden to prove either that there is no conceivable legitimate purpose for the law or that the means chosen to effectuate a legitimate purpose are not rationally related to that purpose. This standard is highly deferential to government activity but is surmountable, particularly in the context of discrimination based on sexual orientation. Rational basis review, while deferential, is not toothless. Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th Cir.1998) (quoting Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976)). This search for a rational relationship ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Even under this most deferential standard of review, courts must still insist on knowing the relation between the classification adopted and the object to be attained. Id. at 632, 116 S.Ct. 1620 (emphasis added).

III. In a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky's citizens have done so here. Whether enacted by a legislature or by public referendum, those laws are subject to the guarantees of individual liberties contained within the United States Constitution. Windsor, 133 S.Ct. at 2691; see e.g., Loving, 388 U.S. at 12, 87 S.Ct. 1817 (statute prohibiting interracial marriage violated equal protection). Ultimately, the focus of the Court's attention must be upon Justice Kennedy's majority opinion in Windsor. While Justice Kennedy did not address our specific issue, he did address many others closely related. His reasoning about the legitimacy of laws excluding recognition of same-sex marriages is instructive. For the reasons that follow, the Court concludes that Kentucky's laws are unconstitutional.

A. In Windsor, Justice Kennedy found that by treating samesex married couples differently than opposite-sex married

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has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.... Lawrence, 539 U.S. at 577, 123 S.Ct. 2472 (quoting Bowers, 478 U.S. at 216, 106 S.Ct. 2841 (Stevens, J., dissenting)). Justice Scalia was more blunt, stating that preserving the traditional institution of marriage is just a kinder way of describing the State's moral disapproval of same-sex couples. Id. at 601, 123 S.Ct. 2472 (Scalia, J., dissenting) (emphasis in original). Usually, as here, the tradition behind the challenged law began at a time when most people did not fully appreciate, much less articulate, the individual rights in question. For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society. Similarly, many states deprived women of their equal rights under the law, believing this to properly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another's constitutional rights. Here as well, sometime in the not too distant future, the same understanding will come to pass.

Constitution protects, see Lawrence, 539 U.S. 558, 123 S.Ct. 2472. Id. Under Justice Kennedy's logic, Kentucky's laws burden the lives of same-sex spouses by preventing them from receiving certain state and federal governmental benefits afforded to other married couples. Id. Those laws instruct[ ] all ... officials, and indeed all persons with whom samesex couples interact, including their own children, that their marriage is less worthy than the marriages of others. Id. at 2696. Indeed, Justice Kennedy's analysis would seem to command that a law refusing to recognize valid out-of-state same-sex marriages has only one effect: to impose inequality. From this analysis, it is clear that Kentucky's laws treat gay and lesbian persons differently in a way that demeans them. Absent a clear showing of animus, however, the Court must still search for any rational relation to a legitimate government purpose.

B. [3] The State's sole justification for the provisions is: the Commonwealth's public rationally related to the legitimate government preserving the state's institution of traditional Certainly, these laws do further that policy. challenged policy is interest of marriage.

C. *8 The Family Trust Foundation of Kentucky, Inc. submitted a brief as amicus curiae which cast a broader net in search of reasons to justify Kentucky's laws. It offered additional purported legitimate interests including: responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the optimal childrearing environment, and proceeding with caution when considering changes in how the state defines marriage. These reasons comprise all those of which the Court might possibly conceive. The State, not surprisingly, declined to offer these justifications, as each has failed rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor. See, e.g., Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, , 2014 WL 116013, at *2833 (N.D.Okla.2014) (responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the ideal family unit, and avoiding changes to the institution of marriage and unintended consequences); Kitchen v. Herbert, 961 F.Supp.2d 1181, , 2013 WL 6697874, at *2527 (D.Utah 2013) (responsible procreation, optimal childrearing, proceeding

That Kentucky's laws are rooted in tradition, however, cannot alone justify their infringement on individual liberties. See Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.); Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) ([N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack....). Over the past forty years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties. See, e.g., Loving, 388 U.S. at 12, 87 S.Ct. 1817 (states cannot prohibit interracial marriage); Lawrence, 539 U.S. at 57778, 123 S.Ct. 2472 (states cannot criminalize private, consensual sexual conduct); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 73335, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (states cannot act based on stereotypes about women's assumption of primary childcare responsibility). Justice Kennedy restated the principle most clearly: [T]he fact that the governing majority in a State

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Nine state and federal courts have reached conclusions similar to those of this Court. After the Massachusetts Supreme Judicial Court led the way by allowing same-sex couples to marry, five years later the Connecticut Supreme Court reached a similar conclusion regarding its state constitution on equal protection grounds. Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 957 A.2d 407, 482 (2008). Other courts soon began to follow. See Varnum v. Brien, 763 N.W.2d 862, 907 (Iowa 2009) (holding that banning same-sex marriage violated equal protection as guaranteed by the Iowa Constitution); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1003 (N.D.Cal.2010) (holding that the state's constitutional ban on same-sex marriage enacted via popular referendum violated the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution) aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir.2012) vacated and remanded sub nom. Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013); Garden State Equality v. Dow, 434 N.J.Super. 163, 82 A.3d 336, 36768 (2013) (holding that disallowing same-sex marriage violated the New Jersey Constitution, and the governor withdrew the state's appeal); Griego v. Oliver, 316 P.3d 865, , 2013 WL 6670704, at *3 (N.M.2013) (holding that denying same-sex couples the right to marry violated the state constitution's equal protection clause). Over the last several months alone, three federal district courts have issued well-reasoned opinions supporting the rights of non-heterosexual persons to marriage equality in similar circumstances. See Bishop, 962 F.Supp.2d at , 2014 WL 116013, at *1 (holding that the state's ban on same-sex marriage violated the Equal Protection Clause of the Fourteenth Amendment); Obergefell, 962 F.Supp.2d at , 2013 WL 6726688, at *1 (holding that Ohio's constitutional and statutory ban on the recognition of same-sex marriages validly performed out-of-state was unconstitutional as applied to Ohio death certificates); Kitchen, 961 F.Supp.2d at , 2013 WL 6697874, at *1 (holding that the state's constitutional and statutory ban on same-sex marriage violated the Equal Protection and Due Process clause of the Fourteenth Amendment). Indeed, to date, all federal courts that have considered samesex marriage rights post-Windsor have ruled in favor of samesex marriage rights. This Court joins in general agreement with their analyses.

with caution); Obergefell v. Wymyslo, 962 F.Supp.2d 968, , 2013 WL 6726688, at *20 (S.D.Ohio 2013) (optimal childrearing). The Court fails to see how having a family could conceivably harm children. Indeed, Justice Kennedy explained that it was the government's failure to recognize same-sex marriages that harmed children, not having married parents who happened to be of the same sex: [I]t humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Windsor, 133 S.Ct. at 2694. As in other cases that have rejected the amicus's arguments, no one in this case has offered factual or rational reasons why Kentucky's laws are rationally related to any of these purposes. Kentucky does not require proof of procreative ability to have an out-of-state marriage recognized. The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds. After all, Kentucky allows gay and lesbian individuals to adopt children. And no one has offered evidence that same-sex couples would be any less capable of raising children or any less faithful in their marriage vows. Compare this with Plaintiffs, who have not argued against the many merits of traditional marriage. They argue only that they should be allowed to enjoy them also. Other than those discussed above, the Court cannot conceive of any reasons for enacting the laws challenged here. Even if one were to conclude that Kentucky's laws do not show animus, they cannot withstand traditional rational basis review.

D. *9 The Court is not alone in its assessment of the binding effects of Supreme Court jurisprudence, particularly Justice Kennedy's substantive analysis articulated over almost two decades.

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IV. *10 For many, a case involving these issues prompts some sincere questions and concerns. After all, recognizing samesex marriage clashes with many accepted norms in Kentucky both in society and faith. To the extent courts clash with what likely remains that majority opinion here, they risk some of the public's acceptance. For these reasons, the Court feels a special obligation to answer some of those concerns.

First, the Court was not presented with the particular question whether Kentucky's ban on same-sex marriage is constitutional. However, there is no doubt that Windsor and this Court's analysis suggest a possible result to that question. Second, allowing same-sex couples the state recognition, benefits, and obligations of marriage does not in any way diminish those enjoyed by opposite-sex married couples. No one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages, individually or collectively. One's belief to the contrary, however sincerely held, cannot alone justify denying a selected group their constitutional rights. Third, no court can require churches or other religious institutions to marry same-sex couples or any other couple, for that matter. This is part of our constitutional guarantee of freedom of religion. That decision will always be based on religious doctrine. What this opinion does, however, is make real the promise of equal protection under the law. It will profoundly affect validly married same-sex couples' experience of living in the Commonwealth and elevate their marriage to an equal status in the eyes of state law.

A. Many Kentuckians believe in traditional marriage. Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society's benefit. They may be confused even angrywhen a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer. Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons. The beauty of our Constitution is that it accommodates our individual faith's definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.

C. *11 Many people might assume that the citizens of a state by their own state constitution can establish the basic principles of governing their civil life. How can a single judge interfere with that right? It is true that the citizens have wide latitude to codify their traditional and moral values into law. In fact, until after the Civil War, states had almost complete power to do so, unless they encroached on a specific federal power. See Barron v. City of Baltimore, 32 U.S. 243, 25051, 7 Pet. 243, 8 L.Ed. 672 (1833). However, in 1868 our country adopted the Fourteenth Amendment, which prohibited state governments from infringing upon our individual rights. Over the years, the Supreme Court has said time and time again that this Amendment makes the vast majority of the original Bill of Rights and other fundamental rights applicable to state governments.

B. Many others may wonder about the future of marriages generally and the right of a religion or an individual church to set its own rules governing it. For instance, must Kentucky now allow same-sex couples to marry in this state? Must churches now marry same-sex couples? How will this decision change or affect my marriage?

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to marry mixed-race couples violated equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the states, are subject to constitutional scrutiny and must respect the constitutional rights of persons. Windsor, 133 S.Ct. at 2691 (citing Loving ). Years later, in 1996, Justice Kennedy first emerged as the Court's swing vote and leading explicator of these issues in Romer v. Evans. Romer, 517 U.S. at 635, 116 S.Ct. 1620 (holding that Colorado's constitutional amendment prohibiting all legislative, executive, or judicial action designed to protect homosexual persons violated the Equal Protection Clause). He explained that if the constitutional conception of equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Id. at 63435, 116 S.Ct. 1620 (emphasis in original) (quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). These two cases were the virtual roadmaps for the cases to come next. In 2003, Justice Kennedy, again writing for the majority, addressed another facet of the same issue in Lawrence v. Texas, explaining that sexual relations are but one element in a personal bond that is more enduring and holding that a Texas statute criminalizing certain sexual conduct between persons of the same sex violated the Constitution. 539 U.S. at 567, 123 S.Ct. 2472. Ten years later came Windsor. And, sometime in the next few years at least one other Supreme Court opinion will likely complete this judicial journey. So, as one can readily see, judicial thinking on this issue has evolved ever so slowly. That is because courts usually answer only the questions that come before it. Judge Oliver Wendell Holmes aptly described this process: [J]udges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. S. Pac. Co. v. Jensen, 244 U.S. 205, 221, 37 S.Ct. 524, 61 L.Ed. 1086 (1917) (Holmes, J., dissenting). In Romer, Lawrence, and finally, Windsor, the Supreme Court has moved interstitially, as Holmes said it should, establishing the framework of cases from which district judges now draw wisdom and inspiration. Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled. The Court will enter an order consistent with this Memorandum Opinion.

In fact, the first justice to articulate this view was one of Kentucky's most famous sons, Justice John Marshall Harlan. See Hurtado v. California, 110 U.S. 516, 558, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (Harlan, J., dissenting). He wrote that the Fourteenth Amendment added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that ... no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Plessy v. Ferguson, 163 U.S. 537, 555, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting) (quoting U.S. CONST. amend. XIV). [4] So now, the Constitution, including its equal protection and due process clauses, protects all of us from government action at any level, whether in the form of an act by a high official, a state employee, a legislature, or a vote of the people adopting a constitutional amendment. As Chief Justice John Marshall said, [i]t is emphatically the province and duty of the judicial department to say what the law is. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803). Initially that decision typically rests with one judge; ultimately, other judges, including the justices of the Supreme Court, have the final say. That is the way of our Constitution.

D. For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly? The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. 16 If this were not so, many practices that we now abhor would still exist. *12 Contrary to how it may seem, there is nothing sudden about this result. The body of constitutional jurisprudence that serves as its foundation has evolved gradually over the past forty-seven years. The Supreme Court took its first step on this journey in 1967 when it decided the landmark case Loving v. Virginia, which declared that Virginia's refusal

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insurance companies, creditors, [and] estate planners.... This is a legitimate concern.

MEMORANDUM OPINION AND ORDER *13 [5] Defendant, the Governor of Kentucky, has moved for a stay of enforcement of this Court's February 27, 2014 final order, pending its appeal to the United States Court of Appeals for the Sixth Circuit. On February 28, the Court granted a stay up to and including March 20, 2014, in order to allow the state a reasonable time to implement the order. Defendant moved the Court for an extension of the stay on March 14, and the parties appeared before the Court for a telephonic hearing on the matter on March 17. Defendant filed a notice of appeal on March 18.

[7] On the other hand, Plaintiff same-sex couples argue that they would rather have their marriages recognized for a short amount of time than never at all. Plaintiffs contend that the irreparable harms cited by Defendant are actually minor bureaucratic inconveniences which cannot overcome their constitutional rights. The Court agrees that further delay would be a delay in vindicating Plaintiffs' constitutional rights and obtaining access to important government benefits. The loss of a constitutional right for even minimal periods of time constitutes irreparable harm. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). Finally, the applicant argues that avoiding chaos and uncertainty is in the public's best interest. However, as the Court previously noted, the public interest is twofold: that the Constitution be upheld, and that changes in the law be implemented consistently and without undue confusion. The Court has concerns about implementing an order which has dramatic effects, and then having that order reversed, which is one possibility. Under such circumstances, rights once granted could be cast in doubt. *14 In this Court's view, the application of these four factors is mixed.

I. [6] Federal Rule of Civil Procedure 62 empowers this Court to stay enforcement of its own orders and judgments. Particularly in civil matters, there are no rigid rules that govern such a stay, and courts have a fair amount of discretion. The Court will consider the following factors: (1) whether the stay applicant has made a strong showing of likelihood of success on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure other parties interested in the proceedings; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987); Baker v. Adams Cnty./Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002). Here, the applicant has not made a strong showing of a likelihood of success on the merits. The district courts are so far unanimous, but no court of appeals has issued an opinion. So, one must admit that ultimate resolution of these issues is unknown. 1 The applicant contends that the state will suffer irreparable harm chaos if the stay is not extended. It must demonstrate irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. Family Trust Found. of Ky., Inc. v. Ky. Judicial Conduct Comm'n, 388 F.3d 224, 227 (6th Cir.2004) (quoting Baker, 310 F.3d at 928) (internal quotation marks omitted). To illustrate the irreparable harm, the applicant cites the potential granting and then taking away of same-sex marriage recognition to couples. It also cites the potential impacts on businesses and services where marital status is relevant, including health

II. Another issue of great concern is the significance of the Supreme Court's stay of the district court's injunction in Herbert v. Kitchen, U.S. , 134 S.Ct. 893, 187 L.Ed.2d 699 (Jan. 6, 2014). Since then, three additional cases in which Plaintiffs sought the issuance of marriage licenses have entered stays on their rulings pending appeal. See Bishop v. United States ex rel. Holder, 04CV848TCKTLW, 2014 WL 116013, at *33 (N.D.Okla. Jan.14, 2014); Bostic v. Rainey, 2:13CV395, 2014 WL 561978, at *23 (E.D.Va. Feb.13, 2014); Deleon v. Perry, SA13CA00982OLG, 2014 WL 715741, at *28 (W.D.Tex. Feb.26, 2014). The applicant says that it is precedential here. Plaintiffs make a compelling argument that, at the time of the Supreme Court's guidance in Kitchen, the Tenth Circuit had already directed expedited briefing and argument. Here, there is no such guarantee of expedited briefing before the

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our Constitution. It is that belief which ultimately informs the Court's decision to grant a stay. It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well. Being otherwise sufficiently advised, IT IS HEREBY ORDERED that the stay of this Court's February 27, 2014 final order is extended until further order of the Sixth Circuit.

Sixth Circuit. It may be years before the appeals process is completed. Also, our case is different than Kitchen. Nevertheless, the Supreme Court has sent a strong message by its unusual intervention and order in that case. It cannot be easily ignored. Perhaps it is difficult for Plaintiffs to understand how rights won can be delayed. It is a truth that our judicial system can act with stunning quickness, as this Court has; and then with sometimes maddening slowness. One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance. This is the way of

Footnotes

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See ALA.CODE 30119 (2013); ARIZ.REV.STAT. ANN. 25101, 125 (2013); ARK.CODE ANN. 911208(b), 107(b) (West 2013); COLO.REV.STAT. ANN. 142104 (West 2013); FLA. STAT. ANN.. 741.212 (West 2013); GA.CODE ANN. 1933.1 (West 2013); HAW.REV.STAT. 5721, 1.6 (West 2013) (repealed 2011); IDAHO CODE ANN. 32209 (West 2013); 750 ILL. COMP. STAT. ANN.N. 5/212(a)(5), 5/213.1 (West 2013); IND.CODE ANN. 311111 (West 2013); KAN. STAT. ANN. . 232501, 232508 (West 2013); LA. CIV.CODE ANN. art. 89, 3520 (2013); MICH. COMP. LAWS ANN. 551.1, .271(2) (West 2013); MISS.CODE ANN. 9311(2) (West 2013); MO. ANN. STAT. 451.022 (West 2013); MONT.CODE ANN. 401401(1)(d) (2013); N.C. GEN.STAT. ANN. 511.2 (West 2013); N.D. CENT.CODE ANN. 14 0301, 08 (West 2013); OKLA. STAT. tit. 43, 3.1 (2013); 23 PA. CONS.STAT. ANN. 1102, 1704 (West 2013); S.C.CODE ANN. 20110, 15 (2013); S.D. CODIFIED LAWS 2511, 38 (2013); TENN.CODE ANN. 363113 (West 2013); TEX. FAM.CODE ANN. 1.103, 2.001 (West 2013); UTAH CODE ANN. 3012 (West 2013), invalidated by Kitchen v. Herbert, 961 F.Supp.2d 1181 (D.Utah 2013)); VA.CODE ANN. 2045.2 (West 2013); W. VA.CODE ANN. 482104, 401 (West 2013). The bill included commentary that stated: a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits. H.R.REP. NO. 104664, at 411, 1996 U.S.C.C.A.N. 2905, 2914 (1996). The pertinent text of these provisions is: 402.005: As used and recognized in the law of the Commonwealth, marriage refers only to the civil status, condition, or relation of one (1) man and one (1) woman.... 402.020:(1) Marriage is prohibited and void (d) Between members of the same sex. 402.040:(2) A marriage between members of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in K.R.S. 402.045. 402.045:(1) A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky. (2) Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts. KY.REV.STAT. ANN. 402.005.045 (West 2013). States passing constitutional amendments banning same-sex marriage in 2004 include Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah. Other states followed suit: in 2005, Kansas and Texas; in 2006, Alabama, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin; in 2008, Arizona, California, and Florida; and in 2012, North Carolina. Alaska passed its constitutional ban in 1998, and Nebraska and Nevada did so in 2000. California's, Utah's, and Oklahoma's constitutional bans have since been overturned. 53.6% of Kentucky's registered voters participated. Recognition by legislation and by popular vote has occurred in Vermont (Apr. 7, 2009), New Hampshire (June 3, 2009), District of Columbia (Dec. 18, 2009), New York (June 24, 2011), Washington (Nov. 6, 2012), Maine (Nov. 6, 2012), Maryland (Nov. 6, 2012), Delaware (May 7, 2013), Minnesota (May 14, 2013), Rhode Island (May 2, 2013), Hawaii (Nov. 13, 2013), and Illinois (Nov. 20, 2013) (effective June 1, 2014). State and federal court judgments have occurred in Massachusetts, Connecticut, Iowa, California, New Jersey, New Mexico, Utah, and Oklahoma. The Utah and Oklahoma decisions are currently being appealed. Plaintiffs Franklin and Boyd are residents of Shelby County and originally filed suit in the Eastern District of Kentucky. Judge Gregory Van Tatenhove granted Plaintiffs and Defendants' joint motion for change of venue pursuant to 28 U.S.C. 1404 to the

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Western District of Kentucky. The case was assigned to Judge Thomas Russell, who transferred it here in the interest of judicial economy and to equalize the docket. Although the cases were not consolidated, Plaintiffs here subsequently added Franklin and Boyd to this action in their Second Amended Complaint. In their Second Amended Complaint, Plaintiffs also alleged discrimination on the basis of sex. However, the current motion before the Court does not mention any such basis. Therefore, the Court will construe this claim to allege only discrimination based on sexual orientation. Plaintiffs also seek a declaration that Section 2 of the Defense of Marriage Act (DOMA), 28 U.S.C. 1738C, as applied to Plaintiffs and similarly situated same-sex couples violates the Due Process, Equal Protection, Freedom of Association, and Full Faith and Credit clauses of the United States Constitution. The Court finds that Section 2 of DOMA, as a permissive statute, is not necessary to the disposition of Plaintiffs' case and therefore will not analyze its constitutionality. The Fourteenth Amendment to the U.S. Constitution provides, in pertinent part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV 1. In Windsor, the state of New York enacted legislation recognizing same-sex marriages performed out of state and later amended its own laws to permit same-sex marriage. Section 3 of the Defense of Marriage Act (DOMA) denied recognition to same-sex marriages for the purposes of federal law. As a result of DOMA, a same-sex spouse did not qualify for the marital exemption from the federal estate tax. She brought an action challenging the constitutionality of Section 3 of DOMA in federal court. The Windsor Court applied Fifth Amendment due process and equal protection analysis to the plaintiff's challenge of a federal statute. Our case involves a challenge to a state constitutional provision and state statutes, thus falling under the protections of the Fourteenth Amendment, which is subject to the same substantive analysis. Indeed, one district court in this Circuit has found that Lawrence destroyed the jurisprudential foundation of Davis's line of Sixth Circuit cases, thus leaving the level of scrutiny an open question for lower courts to resolve. See Obergefell v. Wymyslo, 962 F.Supp.2d 968, , 2013 WL 6726688, at *13 (S.D.Ohio 2013). Some courts have construed the right to marry to include the right to remain married. See, e.g., Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D.Ohio 2013). The logic is that Kentucky's laws operate to render Plaintiffs' marriage invalid in the eyes of state law. This could amount to a functional deprivation of Plaintiffs' lawful marriage, and therefore a deprivation of liberty. See id. at , at *56. Indeed, Justice Scalia stated that Windsor indicated the way the Supreme Court would view future cases involving same-sex marriage beyond mistaking. 133 S.Ct. at 2709 (Scalia, J., dissenting). Senate Bill 245 proposed the amendment to the Kentucky Constitution. The bill's sponsor, state senator Vernie McGaha said: Marriage is a divine institution designed to form a permanent union between man and woman.... [T]he scriptures make it the most sacred relationship of life, and nothing could be more contrary to the spirit than the notion that a personal agreement ratified in a human court satisfies the obligation of this ordinance.... [I]n First Corinthians 7:2, if you notice the pronouns that are used in this scripture, it says, Let every man have his own wife, and let every woman have her own husband. The Defense of Marriage Act, passed in 1996 by Congress, defined marriage for the purpose of federal law as the legal union between one man and one woman. And while Kentucky's law did prohibit the same thing, in #98 we passed a statute that gave it a little more strength and assured that such unions in other states and countries also would not be recognized here. There are similar laws across 38 states that express an overwhelming agreement in our country that we should be protecting the institute [sic] of marriage. Nevertheless this institution of marriage is under attack by judges and elected officials who would legislate social policy that has already been in place for us for many, many years.... In May of this year, Massachusetts will begin issuing marriage licenses to samesex couples.... We in the legislature, I think, have no other choice but to protect our communities from the desecration of these traditional values.... Once this amendment passes, no activist judge, no legislature or county clerk whether in the Commonwealth or outside of it will be able to change this fundamental fact: the sacred institution of marriage joins together a man and a woman for the stability of society and for the greater glory of God. S. DEBATE, 108TH CONG., 2ND SESS. (Ky. 2004), ECF No. 386 at 1:00:301:05:10. Similarly, cosponsor state senator Gary Tapp proclaimed: For many years, Kentucky has had laws that define marriage as one man and one woman, and in 1998, the General Assembly did strengthen those laws ensuring that same-sex marriages performed in other states or countries would not be recognized here.... While we're not proposing any new language regarding the institution of marriage in Kentucky, this pro-marriage constitutional amendment will solidify existing law so that even an activist judge cannot question the definition of marriage according to Kentucky law.... [W]hen the citizens of Kentucky accept this amendment, no one, no judge, no mayor, no county clerk, will be able to question their beliefs in the traditions of stable marriages and strong families.

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Id. at 1:05:431:07:45. The final state senator to speak on behalf of the bill, Ed Worley, said that the bill was not intended to be a discrimination bill. Id. at 1:26:10. However, he offered no other purpose other than reaffirming the historical and Biblical definition of marriage. See, e.g., id. at 1:26:201:26:50. One state senator, Ernesto Scorsone, spoke out against the constitutional amendment. He said: The efforts to amend the U.S. Constitution over the issue of interracial marriage failed despite repeated religious arguments and Biblical references.... The proposal today is a shocking departure from [our constitutional] principles.... To institutionalize discrimination in our constitution is to turn the document on its head. To allow the will of the majority to forever close the door to a minority, no matter how disliked, to any right, any privilege, is an act of political heresy.... Their status will be that of second-class citizens forever.... Discrimination and prejudices will not survive the test of time. Id. at 1:16:071:24:00. The Supreme Court in Lawrence v. Texas explained: Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. 539 U.S. at 57879, 123 S.Ct. 2472. The applicant cites a potential issue of the applicability of Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). However, Baker dismissed for want of a substantial federal question an action requesting the issuance of a same-sex marriage license, an issue that was not before the Court in our underlying case.

End of Document

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2014 WL 1100794 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division. April DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.R, minors, and Jayne Rowse, individually and as parent and next friend of N.D.R, R.D.-R., and J.D.-R, minors, Plaintiffs, Richard SNYDER, in his official capacity as Governor of the State of Michigan, and BILL SCHUETTE, in his official capacity as Michigan Attorney General, Defendants. Civil Action No. 12CV 10285. | Signed March 21, 2014. Synopsis Background: Same-sex couple brought action against governor and attorney general, alleging voter approved Michigan Marriage Amendment (MMA), which prohibited same-sex marriage, violated the Fourteenth Amendment equal protection and due process clauses.

Validity Called into Doubt M.C.L.A. 551.1 Attorneys and Law Firms Dana M. Nessel, Nessel Kessel, Robert A. Sedler, Wayne State University Law School, Detroit, MI, Joshua A. Block, Leslie Cooper, American Civil Liberties Union Foundation, New York, NY, Kenneth M. Mogill, Mogill, Posner, Lake Orion, MI, Mary L. Bonauto, Vickie L. Henry, Gay & Lesiban Advocates & Defenders, Boston, MA, Carole M. Stanyar Ann Arbor, MI, for Plaintiffs. Bullard Bill, Jr., Pontiac, MI, pro se. Joseph E. Potchen, Kristin M. Heyse, Michigan Department of the Attorney General, Michelle M. Brya, Hubbard, Fox, Lansing, MI, Tonya C. Jeter, Michigan Attorney General, Detroit, MI, Keith J. Lerminiaux, Oakland County Corporation Counsel, Pontiac, MI, Andrea J. Johnson, Beth M. Rivers, Michael L. Pitt, Pitt, McGehee, Royal Oak, MI, for Defendants. Opinion FINDINGS OF FACT AND CONCLUSIONS OF LAW BERNARD A. FRIEDMAN, Senior District Judge.

Holdings: The District Court, Bernard A. Friedman, Senior Judge, held that: [1] MMA was not rationally related to government interest in providing optimal environment for child rearing; [2] asserted interests in tradition and morality were not rational bases; and [3] that Michigan had exclusive and inherent powers to define marriage did not preclude district court from finding MMA violated the Fourteenth Amendment.

*1 Plaintiffs April DeBoer and Jayne Rowse (plaintiffs) challenge a November 2004 voter-approved amendment to the Michigan Constitution that prohibits same-sex marriage (hereinafter the Michigan Marriage Amendment or MMA), Mich. Const. Art. I, 25. The Michigan Marriage Amendment states: To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose. Plaintiffs maintain that the MMA violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and they seek to enjoin state and county officials from enforcing the provision and its implementing statutes. 1

Judgment for plaintiffs. After reviewing the evidence presented at the trial, including the testimony of various expert witnesses, the exhibits, and stipulations, and after considering all of the legal issues involved, the Court concludes that the MMA is unconstitutional and will enjoin its enforcement.

West Codenotes Held Unconstitutional M.C.L.A. Const. Art. 1, 25

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Thereafter, the parties both filed motions for summary judgment. The state defendants, in support of their argument that the MMA has legitimate purposes, offered the following reasons for excluding same-sex couples from Michigan's definition of marriage: (1) providing children with biologically connected role models of both genders that are necessary to foster healthy psychological development; (2) avoiding the unintended consequences that might result from redefining marriage; (3) upholding tradition and morality; and (4) promoting the transition of naturally procreative relationships into stable unions. Assuming that the appropriate level of scrutiny in this case is rational basis review, the Court concluded that plaintiffs raised triable issues of fact regarding whether the proffered rationales for the MMA serve a legitimate state interest, but that plaintiffs had not demonstrated their entitlement to summary judgment. As a result, the Court scheduled the matter for trial.

I. Background The underlying facts of this case are straightforward. Plaintiffs are an unmarried same-sex couple residing in Hazel Park, Michigan. They have lived together for the past eight years and jointly own their residence. Both are state-licensed foster parents. DeBoer is a nurse in the neonatal intensive care unit at Hutzel Hospital and Rowse is an emergency room nurse at Henry Ford Hospital, both located in Detroit. In November 2009, Rowse, as a single person, legally adopted child N. In October 2011, also as a single person, she legally adopted child J. In April 2011, DeBoer, as a single person, adopted child R. Unable to jointly adopt the three children, plaintiffs initially filed the instant action against the state defendants requesting that the Court enjoin them from enforcing section 24 of the Michigan Adoption Code (hereinafter section 24), Mich. Comp. Laws 710.24, which restricts adoptions to either single persons or married couples. Plaintiffs claimed that section 24 violates the Equal Protection Clause because it impermissibly discriminates against unmarried couples. In response, the state defendants moved to dismiss the complaint on the grounds that, among other things, plaintiffs lacked standing to bring suit. The Court held a hearing on the state defendants' motion and expressed reservations that plaintiffs did not possess the requisite standing to challenge section 24. The Court noted that while plaintiffs made a colorable claim that they and their children were, in fact, injured by their ineligibility to petition for joint adoption, this injury was not traceable to defendants' enforcement of section 24. Rather, plaintiffs could not jointly adopt their children because they were not married, and any legal form of same-sex union is prohibited by the MMA. The Court concluded the hearing by inviting plaintiffs to seek leave to amend their complaint to include a challenge to the MMA. *2 Plaintiffs accepted the Court's invitation and sought leave to amend their complaint, which the Court granted over defendants' objection. The amended complaint included a second cause of action challenging the validity of the MMA on both due process and equal protection grounds. The state defendants then renewed their motion, this time to dismiss the amended complaint. The Court held the matter in abeyance and then denied the motion after the United States Supreme Court issued its decision in United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), invalidating section 3 of the Defense of Marriage Act of 1996 (DOMA).

II. Trial Proceedings, Summary of Testimony, and Findings of Fact In setting the case for trial, the Court directed the parties to address a narrow legal issue: whether the MMA survives rational basis review. In other words, does the MMA proscribe conduct in a manner that is rationally related to any conceivable legitimate governmental purpose. Plaintiffs called psychologist David Brodzinsky as their first witness. He testified that decades of social science research studies indicate that there is no discernible difference in parenting competence between lesbian and gay adults and their heterosexual counterparts. Pls.' Ex. 30 at 34. Nor is there any discernible difference in the developmental outcomes of children raised by same-sex parents as compared to those children raised by heterosexual parents. Id. Brodzinsky stressed that the primary factors influencing childhood development are: [the] quality of parent-child relationships; quality of the relationships between the parents ... [t]he characteristics of the parent, the styles that they adopt, parental warmth and nurturance [sic], emotional sensitivity. The ability to employ age appropriate rules and structure for the child. And the kinds of educational opportunities that children are afforded is important, as well as the resources that are provided for the

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science research, and the results of such studies are valid and reliable if, as occurred here, they are consistently replicated by different researchers studying different sample groups. Sociologist Michael Rosenfeld supported this conclusion. In his 2010 study entitled Nontraditional Families and Childhood Progress Through School, Rosenfeld gathered data from the 2000 United States Census to examine whether grade school children of same-sex couples progress through school at the same rate as children raised by heterosexual couples. Controlling for parental income, education levels and family stability, Rosenfeld found that children raised by same-sex couples progress through school at almost the same rate as children raised by heterosexual married couples. Regarding couple stability, Rosenfeld testified that cohabiting same-sex couples reported higher break-up rates than heterosexual married couples during the years preceding any legally recognized form of same-sex union (in the 1980s and 1990s). However, studies measuring couple stability during the era of legally recognized same-sex unions demonstrated that longevity rates among cohabiting samesex couples was on par with heterosexual married couples. Referring to his ongoing longitudinal study 2 entitled How Couples Meet and Stay Together, Rosenfeld confirmed that same-sex couples in legally recognized unions exhibit the same couple stability rates as their heterosexual married counterparts. *4 Although he testified that the social science community has formed a strong consensus regarding the comparable outcomes of children raised by same-sex couples, Rosenfeld recognized that a small number of detractors have criticized his research. In particular, Rosenfeld referred to a 2013 study conducted by family economists Douglas Allen, Catherine Pakaluk and Joseph Price that critiqued the statistical methodology he used in his 2010 study. Allen, Palaluk and Price contended that Rosenfeld's results were inaccurate because he excluded children from his sample population who should have been included. Rosenfeld responded to this argument at trial by showing that Allen, Pakaluk and Price had overstated the statistical uncertainty of his results. Through demonstrative exhibits, Rosenfeld showed that the results of his study were not inaccurate at all. After controlling for parental education and income levels, Rosenfeld's data indicated that the children of heterosexual married couples are just as likely to be held back in school as are the children of same-sex couples. This finding led him to conclude that in terms of school progress there is no significant difference between the children of same-sex couples and the children

child, not only in the family itself, but the resources that, from the outside, that impact the family and the child in particular. And of course, the mental health of ... the parents. *3 Brodzinsky, Tr. 2/25/14 pp. 6970. Contrary to the state defendants' position, Brodzinsky testified that there is no body of research supporting the belief that children require parent role models of both genders to be healthy and well adjusted. Id. at 7879. What matters is the quality of parenting that's being offered to the child. Id. at 78. Brodzinsky also noted that same-sex parenting has become a fact of life for many American children and that legally recognizing same-sex marriages would benefit these children by promoting family stability and investing these families with social capital. Id. at 136. Brodzinsky also addressed the criticism that most of the social science research studies informing his conclusions are statistically unreliable because they utilized small and self-selecting sample populations, i.e., convenience studies. In addressing this criticism, Brodzinsky indicated that researchers in the fields of child development and family psychology commonly use convenience studies as a methodological tool for studying issues of interest because they, in contrast to large-scale studies, offer the opportunity for a more detailed analysis of the circumstances affecting children and their parents. While Brodzinsky acknowledged that small-scale convenience samples have their limitations, he highlighted that researchers studying same-sex households have verified the conclusions of their convenience studies by consistently replicating the results of these studies using different research strategies and sample populations. These studies, approximately 150 in number, have repeatedly demonstrated that there is no scientific basis to conclude that children raised by same-sex parents fare worse than those raised by heterosexual parents. The Court finds Brodzinsky's testimony to be fully credible and gives it considerable weight. He testified convincingly that children's outcomes depend on the factors he cited, and not on their parents' gender and not on whether they are raised by heterosexual or same-sex couples. The quality of a person's child-rearing skills is unrelated to the person's gender or sexual orientation. Brodzinsky's credibility was not in any way lessened by the fact that the social science research upon which his opinions are based come largely from so-called convenience studies. As Brodzinsky and others testified, such studies are the bread and butter of many areas of social

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*5 Law professor Vivek Sankaran testified that the MMA destabilizes children raised by same-sex couples in the event the sole legal parent dies or becomes incapacitated. Sankaran stated that in such circumstances the non-legal parent could petition for guardianship over the child, but that these proceedings are burdensome and often lack finality because Michigan courts are required to review a nonlegal parent's guardianship status every year until the child turns 18. Moreover, once the non-legal parent commences a guardianship proceeding there is no guarantee that the court will either award guardianship to that parent or eventually permit him or her to adopt the child. Michigan law allows any individual possessing an interest in the child's welfare to file a petition removing the guardian if the removal would serve the child's best interests. Sankaran testified that an interested person may include a distant relative of the child, a neighbor, teacher, or anyone who claims to have an interest in the child. Should the non-legal parent encounter any delay in pursuing the guardianship, there is also the prospect that the Michigan Department of Human Services (DHS) could initiate a child neglect investigation because the child would be left for at least some period of time without a legal guardian. Sankaran, Tr. 2/26/14 pp. 120121. In this event, DHS is authorized to file a petition in juvenile court to remove the child from the custody of the non-legal parent and place the child in foster care. At the removal proceeding, the non-legal parent would not be a party to the proceeding nor would the juvenile court appoint a lawyer to represent the non-legal parent's interests. According to Sankaran, the non-legal parent would have to become a licensed foster parent in order to obtain custody of the child, and even then the juvenile court is not required to place the child with the non-legal parent. These destabilizing consequences could have far reaching effects throughout the state, as demographer Gary Gates testified that currently there are approximately 14,598 same-sex couples living in Michigan and that approximately 2,650 such couples are raising 5,300 children. Gates, Tr. 2/27/14 p. 29. The Court finds Sankaran's testimony to be fully credible and gives it great weight. He testified convincingly that children being raised by same-sex couples have only one legal parent and are at risk of being placed in legal limbo if that parent dies or is incapacitated. Denying same-sex couples the ability to marry therefore has a manifestly harmful and destabilizing effect on such couples' children. The testimony of Gates, whom the Court also found to be a highly credible witness, showed the magnitude of this effect by noting that 5,300

of heterosexual married couples. 3 Rosenfeld, Tr. 2/25/14 p. 82. The Court finds Rosenfeld's testimony to be highly credible and gives it great weight. His research convincingly shows that children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples. The Court notes that the testimony of Brodzinsky and Rosenfeld is in line with a strong no differences consensus within the professional associations in the psychological and sociological fields. Brodzinsky made the following statement in his expert witness report, which defendants did not challenge: Every major professional organization in this country whose focus is the health and well-being of children and families has reviewed the data on outcomes for children raised by lesbian and gay couples, including the methods by which the data were collected, and have concluded that these children are not disadvantaged compared to children raised in heterosexual parent households. Organizations expressing support for parenting, adoption, and/or fostering by lesbian and gay couples include (but are not limited to): American Medical Association, American Academy of Pediatrics, American Psychiatric Association, American Academy of Child and Adolescent Psychiatry, American Psychoanalytic Association, American Psychological Association, Child Welfare League of America, National Association of Social Workers, and the Donaldson Adoption Institute. Pls.' Ex. 30 at 21. In fact, the 2004 Council of Representatives of the American Psychological Association (APA) unanimously voted in favor of issuing a position statement that research has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish. Pls.' Ex. 111 at 2.

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who meet the sparse statutory requirements concerning age, residency, and single status. Clerks do not inquire about whether applicants intend to raise children, whether they possess good parenting skills, or whether they have a criminal record. In defense of their asserted justifications for the MMA, the state defendants first called sociologist Mark Regnerus. Regnerus's testimony focused on the results of his 2012 New Family Structures Study (NFSS), a survey data collection project that was formulated to assess adult outcomes of children who reported that one of their parents had been in a romantic relationship with someone of the same-sex during the respondents' childhood years. Of the 15,000 participants ranging in age from 18 to 39, 248 of them reported that one of their parents had been in such a romantic relationship. From this sample, 175 reported that their mother had a same-sex romantic relationship while 73 reported that their father had been romantically involved with another man. Regnerus then compared the adult outcomes of these two subgroups with another set of participants who were raised by intact biological parents. The outcomes of these groups were significantly different. Regnerus found that children who reported that their mothers had a same-sex relationship were less likely to pursue an education or obtain full-time employment and more likely to be unemployed and receiving public assistance, more likely to experience sexual assault, more likely to cheat on their partners or spouses and more likely to have been arrested at some point in their past. Similarly, Regnerus discovered that children who reported that their fathers had a same-sex relationship were more likely to have been arrested, more likely to plead guilty to non-minor offenses and more likely to have numerous sexual partners. *7 Although Regnerus touted the NFSS as one of the few studies to use a large representative pool of participants drawn from a random population-based sample, other sociological and demographic experts, including Rosenfeld and Gates, heavily criticized the study on several grounds. First, it failed to measure the adult outcomes of children who were actually raised in same-sex households. This is because the participants' household histories revealed that many parental same-sex romantic relationships lasted for only brief periods of time. And many of the participants never lived in a samesex household at all. Regnerus reported that just over half (90) of the 175 respondents whose mother had a lesbian relationship reported that they did not live with both their

children in Michigan are currently being raised by same-sex couples. Plaintiffs also presented expert testimony that the MMA erodes the benefits that marriage has historically promoted. Historian Nancy Cott testified that, from the founding of the colonies through the early years of the republic, civil authorities regulated marriage to foster stable households, legitimate children and designate providers to care for dependents who otherwise would become wards of the state. During the twentieth century, the state and federal governments furthered these goals by granting many benefits to married couples. For instance, Social Security survivor benefits and government sponsored healthcare benefits are available to legally married couples, but not unmarried partners. Yet, by effectively foreclosing same-sex couples from obtaining these benefits, the MMA undermines the very aim of one of the central historical bases for civil marriage, namely, family stability. *6 Cott further attested that there is no historical precedent for prohibiting marriages that are incapable of creating biological offspring. After surveying the domestic legal history of every state in the country, Cott indicated that none of them have ever required a couple to possess the capacity or inclination to procreate as a prerequisite to marriage. Cott, Tr. 2/28/14 p. 14. She highlighted that sterility or infertility have never constituted legal grounds for the annulment of a marriage. Nor have states prohibited postmenopausal women or sterile men from marrying. Examining the historical grounds for divorce, Cott noted that the inability to have a child has not been a ground of divorce in any state, including Michigan. Id. at 15. The Court finds Cott to be highly credible and accords her testimony great weight. Even today, the State of Michigan does not make fertility or the desire to have children a prerequisite for obtaining a marriage license. As defendant Lisa Brown testified, Michigan county clerks are not authorized to consider a couple's stability, criminal record, ability to procreate, parenting skills, or the potential future outcomes of their children before issuing a marriage license. Brown, Tr. 3/3/14 pp. 34, 3840. County clerks may only evaluate the age and residency of the license applicants and whether either of the applicants is currently married. 4 Id. at 32, 35. The Court finds Brown to be highly credible and gives her testimony great weight. She testified convincingly that county clerks in Michigan must issue a marriage license to any couple

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certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study a large, random sample of American young adults (ages 1839) who were raised in different types of family arrangements (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a romantic relationship with someone of the same sex for any length of time. Whatever Regnerus may have found in this study, he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by samesex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus's own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus's views in general and reaffirmed the aforementioned APA position statement. In reviewing the many research studies that have measured the outcomes of children raised by same-sex couples, family studies professor Loren Marks and economist Joseph Price questioned the validity of these studies in view of their statistical methodologies. Both witnesses testified that the research studies of same-sex families often have relied upon small self-selecting sample sizes, rarely compared child outcomes to children raised by intact heterosexual couples, and failed to use hard outcome variables that are easily to measured, i.e., grade retention, criminality or unemployment. In his testimony, Marks lauded a 1996 study performed by Australian researcher Sotirios Sarantakos entitled Children in Three Contexts: Family, Education and Social Development. That study compared 58 children of heterosexual married parents, 58 children of heterosexual cohabiting couples, and 58 children living with same-sex couples across a wide spectrum of teacher-reported scholastic measures. Defs.' Ex. 25 at 16, 38. Marks testified that after controlling for, among other things, parental income and education levels, the study found significant differences between children raised by intact heterosexual married parents and those raised by same-sex parents. Sarantakos concluded, children of married [heterosexual] couples are more likely to do well at school in academic and social terms, than children of cohabiting and homosexual couples. Id. at 17. However, on cross-examination, Marks conceded that the study's probative value was limited by the fact that most of the 58 children raised by same-sex couples experienced parental divorce at some earlier time in their lives. Marks,

mother and her same-sex partner at the same time. Id. at 11. Second, many critics voiced their concern that the NFSS made an unfair comparison between children raised by parents who happened to engage in some form of samesex relationship and those raised by intact biological families. This is because almost all of the children in the former group were the offspring of a failed prior heterosexual union, which produced a significant measure of household instability and parental relationship fluctuation. Even Regnerus recognized the limitations of the NFSS. In his expert report, Regnerus acknowledged that any suboptimal outcomes may not be due to the sexual orientation of the parent and that [t]he exact source of group differences are unknown. Defs.' Ex. 28 at 5. Moreover, of the only two participants who reported living with their mother and her same-sex partner for their entire childhood, Regnerus found each of them to be comparatively well-adjusted on most developmental and contemporary outcomes. Id. at 11. Nonetheless, Regnerus testified that there is no conclusive evidence that growing up in households wherein parents are in (or have been in) same-sex relationships does not adversely affect child outcomes. Id. at 16. The Court finds Regnerus's testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 study was hastily concocted at the behest of a third-party funder, which found it essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society and which was confident that the traditional understanding of marriage will be vindicated by this study. See Pls.' Motion in limine to Exclude Testimony of Mark Regnerus, Ex. 9. In the funder's view, the future of the institution of marriage at this moment is very uncertain and proper research was needed to counter the many studies showing no differences in child outcomes. Id. The funder also stated that this is a project where time is of the essence. Id. Time was of the essence at the time of the funder's comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal.2010), and Windsor v. United States, 833 F.Supp.2d 394 (S.D.N.Y.2012), were threatening the funder's concept of the institution of marriage. *8 While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a

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during their childhood years or when their academic progress began to decline. Allen, Tr. 3/6/14 p. 120. One of the major limitations of Allen's study was that he could not discern whether a particular young adult's academic decline coincided with a separation in the household. Id. at 120121. This led Allen to acknowledge in a footnote that his paper does not study the effect of growing up in a same-sex household, but rather examines the association of school performance for those children who lived with same-sex parents in 2006. Defs.' Ex. 15 at 4 (emphasis added). Moreover, when Allen controlled for parental education, marital status and five years of residential stability, he discovered that there was no statistically significant difference in graduation rates. Allen, Tr. 3/6/14 pp/ 128129. *10 The Court was unable to accord the testimony of Marks, Price, and Allen any significant weight. Marks's testimony is largely unbelievable. He characterized the overwhelming consensus among sociologists and psychologists who endorse the no differences viewpoint as group think, by which he said he meant a politically correct viewpoint that the majority has accepted without subjecting it to proper scientific scrutiny. Marks undertook an excruciatingly detailed examination of the 59 published studies cited by the APA in support of its 2005 Brief on Lesbian and Gay Parenting, in which it concluded that [n]ot a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents. Marks, as well as Price and Allen, faulted many of these studies for their small sample sizes, the non-random methods used to obtain subjects, and the fact that some lacked heterosexual comparison groups, among other criticisms. Marks, Price and Allen all failed to concede the importance of convenience sampling as a social science research tool. They, along with Regnerus, clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields. The most that can be said of these witnesses' testimony is that the no differences consensus has not been proven with scientific certainty, not that there is any credible evidence showing that children raised by same-sex couples fare worse than those raised by heterosexual couples.

Tr. 3/5/14 pp. 7576. By comparison, none of the children raised by heterosexual married parents experienced parental separation. Id. at 76. At several points in the study, even Sarantakos acknowledged that this discrepancy in family stability could have accounted for the differing levels of achievement between these groups. Id. at 7678. *9 Price cited to his 2012 article, authored with Douglas Allen and Catherine Pakaluk, in evaluating the statistical methodology that Rosenfeld used in his 2010 study. Price opined that the Rosenfeld study was flawed because the results were statistically uncertain and the sample population was too small to observe statistically significant differences between children raised by same-sex couples and those raised by heterosexual couples. Price also stated that Rosenfeld's study was problematic because it controlled for family stability by restricting an analysis of family structure to families that have [not] experience[d] changes for the previous five years, which eliminates one of the important channels through which the effect of family structure is likely to operate. Defs.' Ex. 27 at 28. By expanding Rosenfeld's sample population and controlling for certain factors such as family stability, Price's study found that children raised by same-sex couples have noticeably worse outcomes than children raised by heterosexual couples. Ultimately, both Marks and Price concluded that current social science research has not definitively demonstrated that there is no difference between children raised by samesex couples and those children raised by their heterosexual counterparts. Marks, Tr. 3/5/14 p. 24; Price, Tr. 3/5/14 pp. 5456. Economist Douglas Allen testified about his own study using data from the 2006 Canadian Census, which compared the high school graduation rates of young adults (ages 1722) raised by heterosexual married couples and those raised by same-sex couples. Without controlling for any particular factors, Allen found that 72 percent of children raised in heterosexual married households graduated from high school as opposed to 60 percent of those raised in gay parent homes and 52 percent for those raised in lesbian homes. Defs.' Ex. 26 at 36. On cross-examination, Allen conceded that many of the young adults who were living in same-sex households in 2006 had previously lived in heterosexual households where their parents had either divorced or separated. Id. at 49; Allen, Tr. 3/6/14 pp. 119120. Similarly, because the study relied on a snap shot of the sample population during the 2006 Canadian Census, Allen could not gauge how the young adult subjects progressed through school

III. Conclusions of Law A. Legal Standards The Court finds that the MMA impermissibly discriminates against same-sex couples in violation of the Equal Protection Clause because the provision does not advance

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any conceivable legitimate state interest. In light of this determination, the Court finds it unnecessary to address whether the MMA burdens the exercise of a fundamental right under the Due Process Clause. 5 See Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.) The Equal Protection Clause forbids a state from denying to any person within its jurisdiction the equal protection of the laws, U .S. Const. amend. XIV, 1, and promotes the ideal that all persons similarly situated should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). On the other hand, states are empowered to perform many of the vital functions of modern government, Nat'l Fed'n of Indep. Bus. v. Sebelius, U.S. , , 132 S.Ct. 2566, 2578, 183 L.Ed.2d 450 (2012), which necessarily involves adopting regulations which distinguish between certain groups within society. See Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). A balance must therefore be struck between equal protection principles and the practicalities of governance. *11 To this end, the United States Supreme Court has fashioned a three-tiered framework for evaluating whether a provision of law offends the Equal Protection Clause. The most rigorous tier is strict scrutiny, which is reserved for laws that discriminate against suspect classes such as racial, ethnic or religious minorities. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (applying strict scrutiny to racial classification); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (applying strict scrutiny to classification based upon national origin). A more relaxed form of inquiry is intermediate or heightened scrutiny, which courts have applied to laws that discriminate against groups on the basis of gender, alienage or illegitimacy, also known as quasisuspect classes. See Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (applying intermediate scrutiny to classification based upon illegitimacy); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (applying intermediate scrutiny to gender classification). The least exacting tier is rational basis review, which assesses the propriety of legislation that does not implicate either suspect or quasisuspect classes.

In this case, plaintiffs moved to bifurcate the trial in the event the Court decided to hear testimony about whether classifications based on sexual orientation are deserving of heightened scrutiny. The Court granted the motion, although governing Sixth Circuit precedent does not consider gay, lesbian, bisexual or transgender persons to constitute suspect or quasi-suspect classes. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir.2012); Scarborough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir.2006). While some federal courts have held that a more exacting level of scrutiny should be applied in reviewing the constitutionality of same-sex marriage bans, see Windsor v. United States, 699 F.3d 169, 185 (2d Cir.2012); Massachusetts v. United States Dep't of Health and Human Servs., 682 F.3d 1, 11 (1st Cir.2012), the Court need not decide the issue because the MMA does not survive even the most deferential level of scrutiny, i.e., rational basis review. [1] [2] [3] Under this standard, the Court must determine whether the MMA proscribes conduct in a manner that is rationally related to the achievement of a legitimate governmental purpose. See Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Guzman v. United States Dep't of Homeland Sec., 679 F.3d 425, 432 (6th Cir.2012). Courts will not invalidate a provision of law on equal protection grounds unless [its] varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a reviewing court] can only conclude that the government's actions were irrational. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). The government [also] has no obligation to produce evidence to support the rationality of its ... [imposed] classifications and may rely entirely on rational speculation unsupported by any evidence or empirical data. Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir.2000). Rather, it is incumbent upon plaintiffs to refute any reasonably conceivable state of facts that could provide a rational basis for the classification. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).

B. Asserted Reasons for the MMA *12 Largely in keeping with the justifications offered in their summary judgment motion, at trial, the state defendants asserted that the MMA serves the following legitimate state interests: (1) providing an optimal environment for child rearing; (2) proceeding with caution before altering the traditional definition of marriage; and (3) upholding

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efforts were unavailing. The common flaw of the Regnerus and Allen studies was the failure to account for the fact that many of the subjects who were raised in same-sex households experienced prior incidents of family instability (e.g., divorce or separation) or were initially placed in the foster care system. Both researchers acknowledged that poor school performance could result from a child's exposure to divorce or parental separation. Regnerus's NFSS study also suffered from another defect in that it failed to measure the adult outcomes of children who were actually raised in samesex households. In short, the isolated studies cited by the state defendants do not support the argument that children raised by heterosexual couples have better outcomes than children raised by same-sex couples. To the contrary, the overwhelming weight of the scientific evidence supports the no differences viewpoint. *13 Second, the optimal child-rearing justification for the MMA is belied by the state's own marriage requirements. The prerequisites for obtaining a marriage license under Michigan law do not include the ability to have children, a requirement to raise them in any particular family structure, or the prospect of achieving certain outcomes for children. By the same token, the state does not allow for the annulment of a marriage once a couple discovers it cannot conceive, or if the family structure changes, or if the couple's children do poorly in school. Third, contrary to the state defendants' contentions, the MMA actually fosters the potential for childhood destabilization. For instance, in this particular case should either of the plaintiffs die or become incapacitated, the surviving non-legal parent would have no authority under Michigan law to make legal decisions on behalf of the surviving children without resorting to a prolonged and complicated guardianship proceeding. And in the event that a state court were to award guardianship of the surviving children to the non-legal parent, the guardianship would have to be renewed annually and would remain susceptible to the challenge of an interested party at any time. This, as Brodzinsky testified, places such children in a legally precarious situation and deprives them of social capital. Fourth, the state defendants' position suffers from a glaring inconsistency. Even assuming that children raised by same-sex couples fare worse than children raised by heterosexual married couples, the state defendants fail to explain why Michigan law does not similarly exclude certain classes of heterosexual couples from marrying whose

tradition and morality. Additionally, the state defendants consistently asserted that defining marriage is within the exclusive purview of the state's police power. None of these proffered reasons provides a rational basis for adopting the amendment.

1. Optimal Environment [4] The state defendants argued that the citizens of Michigan adopted the MMA on the premise that heterosexual married couples provide the optimal environment for raising children. The Court rejects this rationale for several reasons. First, the evidence adduced at trial disproved this premise. Rosenfeld's study shows that children raised by same-sex couples progress at almost the same rate through school as children raised by heterosexual married couples. In fact, the difference between the two groups is nearly immeasurable. Brodzinsky similarly testified that approximately 150 sociological and psychological studies of children raised by same-sex couples have repeatedly confirmed Rosenfeld's findings that there is simply no scientific basis to conclude that children raised in same-sex households fare worse than those raised in heterosexual households. Brodzinsky also testified that parental gender plays a limited role, if any, in producing well-adjusted children. Brodzinsky, Tr. 2/25/14 p. 78. He stated that: It's not the gender of the parent that's the key. It's the quality of parenting that's being offered by whoever is there, husband or wife, two women, two men, a single parent, as long as the factors that we listed ... are present: good mental health, good parentchild relationships, what we call an authoritative parenting style, which is warmth, stimulation, structure, and the availability of resources. Then we're going to have a child who is much more likely to be healthy. Id. at 7879. In response, state defendants cited a small number of outlier studies in support of the optimal child-rearing rationale. In an effort to show that children raised by same-sex couples fare worse than those raised by heterosexual couples, the state defendants relied principally upon Regnerus's NFSS study and Allen's 2006 Canadian Census study, but these

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why federal administrative agencies must provide the public with a notice and comment period before exercising their rule-making authority. Hearings must be held, studies must be conducted, and legislators must deliberate. These things necessarily take time. But the calculus is fundamentally altered when constitutional rights are implicated because any deprivation of constitutional rights calls for prompt rectification. Watson v. Memphis, 373 U.S. 526, 532533, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963). The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled. Id. The state may not shield itself with the wait-and-see approach and sit idly while social science research takes its plodding and deliberative course. Were the Court to accept this position, it would turn the rational basis analysis into a toothless and perfunctory review because the state can plead an interest in proceeding with caution in almost any setting. Kitchen v. Herbert, No. 13217, 2013 U.S. Dist. LEXIS 179331, at *77 (D.Utah Dec. 20, 2013). Rather, the state must have some rationale beyond merely asserting that there is no conclusive evidence to decide an issue one way or another. See Perry, 704 F.Supp.2d at 972 (quoting Romer for the proposition that [e]ven under the most deferential standard of review ... the court must insist on knowing the relation between the classification adopted and the object to be attained. ). Since the wait-and-see approach fails to meet this most basic threshold it cannot pass the rational basis test.

children persistently have had sub-optimal developmental outcomes. According to Rosenfeld's study, children raised by suburban residents academically outperformed those children raised by rural and urban residents. Likewise, middle class and poor families are sub-optimal compared to well-off families, and couples with less formal education are suboptimal compared to couples with more formal education. Pls.' Ex. 31 at 5. A child's racial background is another predictive indicator of future success, as the study showed that the probability of making good progress through school is greater in the U.S. for children of Asian descent than for children of all other racial groups. Id. Taking the state defendants' position to its logical conclusion, the empirical evidence at hand should require that only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other heterosexual couples. Obviously the state has not adopted this policy and with good reason. The absurdity of such a requirement is self-evident. Optimal academic outcomes for children cannot logically dictate which groups may marry. Finally, the Court rejects the optimal environment justification because that goal is simply not advanced by prohibiting same-sex couples from marrying. As Gates testified, there are thousands of same-sex couples currently raising thousands of children in Michigan, and these numbers have steadily increased over the past 20 years. Prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents. There is, in short, no logical connection between banning same-sex marriage and providing children with an optimal environment or achieving optimal outcomes.

3. Tradition and Morality [8] Implicit in the wait-and-see approach is the state defendants' underlying contention that preserving traditional marriage is a legitimate goal in and of itself. The difficulty with this justification is two-fold. First, the Supreme Court has held that tradition alone does not satisfy rational basis review. See Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2. Proceeding With Caution *14 Throughout the trial, the state defendants asserted that 2637, 125 L.Ed.2d 257 (1993) (stating that the [a]ncient Michigan has a legitimate interest in proceeding with caution lineage of a legal concept does not give it immunity from before altering the traditional definition of marriage. The attack for lacking a rational basis.). Second, traditional state defendants' experts all concluded that it is too soon to notions of marriage are often enmeshed with the moral understand the societal impact of allowing same-sex couples disapproval of redefining marriage to encompass sameto marry because further study is required. This wait-andsex relationships. On this point, many federal courts have see justification is not persuasive. noted that moral disapproval is not a sufficient rationale for upholding a provision of law on equal protection grounds. [5] [6] [7] Legislatures and regulatory agencies often See Massachusetts v. U.S. Dept. of Health and Human cite to such reasoning when postponing decisions related Servs., 682 F.3d 1, 15 (1 st Cir.2012) (invalidating section to issues of public importance, as matters of public policy 3 of the Defense of Marriage Act because the statute are resolved with more candor and insight when they are expressed a moral disapproval of homosexuality); De Leon decided after an open debate based on sufficient facts. This is v. Perry, No. 130982, 2014 U.S. Dist. LEXIS 26236, at

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*4849 (W.D.Tex. Feb. 26, 2014) (rejecting morality as a justification); Bishop v. United States, No. 04848, 2014 U.S. Dist. LEXIS 4374, at *101 (N.D.Okla. Jan. 14, 2014) (stating that upholding one particular moral definition of marriage ... is not a permissible justification.); Kitchen, 2013 U.S. Dist. LEXIS 179331, at *79 (same). *15 In delivering their opening and closing remarks, plaintiffs' attorneys contended that the voters who approved the MMA were motivated by animus towards lesbian, gay, bisexual and transgender individuals. Since the Court is unable discern the intentions of each individual voter who cast their ballot in favor of the measure, it is cannot ascribe such motivations to the approximately 2.7 million voters who approved the measure. Many Michigan residents have religious convictions whose principles govern the conduct of their daily lives and inform their own viewpoints about marriage. Nonetheless, these views cannot strip other citizens of the guarantees of equal protection under the law. The same Constitution that protects the free exercise of one's faith in deciding whether to solemnize certain marriages rather than others, is the same Constitution that prevents the state from either mandating adherence to an established religion, U.S. Const. amend I, or enforcing private moral or religious beliefs without an accompanying secular purpose. Perry, 704 F.Supp.2d at 930931 (citing Lawrence v. Texas, 539 U.S. 558, 571, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)). As a result, tradition and morality are not rational bases for the MMA.

Id. at 2691. The state defendants gloss over one important caveat. While the justices recognized the state's expansive power in the realm of domestic relations, they also noted that this power has its limits. Writing for the majority, Justice Kennedy stated that domestic relations laws defining and regulating marriage, of course, must respect the constitutional rights of persons ... but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the states, id. (citing Loving ) (internal quotations omitted), and that [t]he states' interest in defining and regulating the marital relation [is] subject to constitutional guarantees ... Id. at 2692. These statements are not merely surplusage, and as one district astutely remarked, [a] citation to Loving is a disclaimer of enormous proportion. Bishop, 2014 U.S. Dist. LEXIS 4374, at *66. *16 Loving has profound implications for this litigation. In that case, the Supreme Court overturned Virginia's anti-miscegenation statutes prohibiting interracial marriage because they violated substantive due process and equal protection. In doing so, the Court rejected Virginia's argument that under the Constitution the regulation and control of marital and family relationships are reserved to the States. Kitchen, 2013 U.S. Dist. LEXIS 179331, at *8384 (citation omitted). This position, which the state defendants advance again in the present case, is just as ineffectual now as it was in Loving. Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand. [10] Further, the Court rejects the contention that Michigan's traditional definition of marriage possesses a heightened air of legitimacy because it was approved by voter referendum. The popular origin of the MMA does nothing to insulate the provision from constitutional scrutiny. As Justice Robert H. Jackson once wrote, [t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and

4. Federalism [9] Citing to the Supreme Court's decision in Windsor, the state defendants maintain that the authority to define marriage falls within the exclusive and inherent powers of the state. 6 In finding section 3 of DOMA unconstitutional, the Windsor Court acknowledged that: The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See 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). The 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. Ibid.

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property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); see e.g. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (stating that the right to equal protection is incorporated within the Fifth Amendment's Due Process Clause). The Court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question. On the contrary, the Supreme Court has clearly stated that if ... an enactment violates the U.S. Constitutionwhether passed by the people or their representatives judicial review is necessary to preserve the rule of law ... [t]he electorate cannot order a violation of the Due Process or Equal Protection Clauses by referendum or otherwise, just as the state may not avoid their application by deferring to the wishes or objections of its citizens. Obergefell v. Wymyslo, No. 130501, 2013 U.S. Dist. LEXIS 179550, at *2728 (S.D.Ohio Dec. 23, 2013) (citing Cleburne, 473 U.S. at 448). In view of the foregoing, the state's domestic relations authority cannot trump federal constitutional limitations.

IV. Conclusion In attempting to define this case as a challenge to the will of the people, Tr. 2/25/14 p. 40, state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court's fervent hope that these children will grow up 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. Today's decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail. *17 Accordingly, IT IS HEREBY DECLARED that Article I, 25 of the Michigan Constitution and its implementing statutes are unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. IT IS FURTHER ORDERED that the State of Michigan is enjoined from enforcing Article I, 25 of the Michigan Constitution and its implementing statutes.

Footnotes

2 3 4

The defendants in this matter are Michigan Governor Richard Snyder and Attorney General Bill Schuette (collectively the state defendants). Plaintiffs later added former Oakland County Clerk, Bill Bullard, Jr. as a party defendant, who was eventually replaced by his successor in office, defendant Lisa Brown. Although Brown is named as a defendant in this matter, she has adopted plaintiffs' legal position challenging the MMA. A longitudinal study is one that measures specific indicators over the course of time. Rosenfeld's study showed that children raised by heterosexual married couples are less than one percent less likely to be held back in school than children raised by same-sex couples. According to Rosenfeld, this minuscule difference is statistically insignificant. Under Michigan law, the statutory requirements applicable to those wishing to marry are minimal. Applicants must (1) be of the opposite sex; (2) consent to be married; (3) not be directly related to one another; (4) not already be married to another person; (5) be at least 18 years old (or at least 16 years old with the consent of a parent or guardian); and (6) pay $20 for a license from the clerk of the county where either party resides or where the marriage will be performed. See Mich. Comp. Laws 551.1, 551.2, 551.3, 551.4, 551.5, 551.101, 551.103. Once a license is issued, the marriage must be solemnized before two witnesses and a person with statutory authority. See Mich. Comp. Laws 551.7, 551.9. The Court notes, however, that the Supreme Court has repeatedly recognized marriage as a fundamental right. See Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (stating that the decision to marry is a fundamental right); Cleveland Bd. of

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Educ. v. La Fleur, 414 U.S. 632, 639640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (stating that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment). Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (same); Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (same). Forty years before the Supreme Court decided Windsor, the Minnesota Supreme Court held in Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), that same-sex couples have no Fourteenth Amendment right to marry. The following year, in a single sentence, the United States Supreme Court dismissed the appeal for want of a substantial federal question. Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The state defendants have argued in the present case that Baker is binding precedent. The answer to this argument was ably articulated by Judge Shelby in Kitchen, 2013 U.S. Dist. LEXIS 179331, at *2326: [T]he Supreme Court has stated that a summary dismissal is not binding when doctrinal developments indicate otherwise. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Here, several doctrinal developments in the Court's analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbians demonstrate that the Court's summary dismissal in Baker has little if any precedential effect today. Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality op.), but also before the Court recognized that the Constitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635636, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Moreover, Baker was decided before the Supreme Court held in Lawrence v. Texas that it was unconstitutional for a state to demean [the] existence [of gay men and lesbians] or control their destiny by making their private sexual conduct a crime . 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). As discussed below, the Supreme Courts decision in Lawrence removes a justification that states could formerly cite as a reason to prohibit same-sex marriage. *** As discussed above, the Court's decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development. Importantly, the Windsor Court foresaw that its ruling would precede a number of lawsuits in state and lower federal courts raising the question of a state's ability to prohibit samesex marriage, a fact that was noted by two dissenting justices.... It is also notable that while the Court declined to reach the merits in Hollingsworth v. Perry because the petitioners lacked standing to pursue the appeal, the Court did not dismiss the case outright for lack of a substantial federal question. See U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). Given the Supreme Court's disposition of both Windsor and Perry, the court finds that there is no longer any doubt that the issue currently before the court in this lawsuit presents a substantial question of federal law. The Court finds this reasoning persuasive and adopts the above quoted passage in full. Baker no longer has any precedential effect.

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2014 WL 715741 Only the Westlaw citation is currently available. United States District Court, W.D. Texas, San Antonio Division. Cleopatra DE LEON, Nicole Dimetman, Victor Holmes, and Mark Phariss, Plaintiffs, v. Rick PERRY, in his official capacity as Governor of the State of Texas; Greg Abbott, in his official capacity as Texas Attorney General; Gerard Rickhoff, in his official capacity as Bexar County Clerk; and David Lakey, in his official capacity as Commissioner of the Texas Department of State Health Services, Defendants. No. SA13CA00982OLG. | Feb. 26, 2014.

[7] Defense of Marriage Act (DOMA) did not bar couples' challenge; [8] state's refusal to recognize out-of-state same-sex marriage did not survive rational basis review; [9] couples suffered irreparable harm; [10] equities favored preliminary injunction; and [11] court would stay its decision pending appeal.

Motion granted.

West Codenotes Held Unconstitutional Vernon's Ann.Texas Const. Art. 1, 32(a, b); V.T.C.A., Family Code 2.001, 6.204. Recognized as Unconstitutional 1 U.S.C.A. 7 Attorneys and Law Firms Barry A. Chasnoff, Daniel McNeel Lane, Jr., Matthew E. Pepping, Akin Gump Strauss Hauer & Feld, LLP., Frank StengerCastro, Attorney at Law, San Antonio, TX, Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA, Michael P. Cooley, Akin Gump Strauss Hauer & Feld LLP, Dallas, TX, for Plaintiff. Michael P. Murphy, Texas Attorney General, William T. Deane, Office of the Attorney General, Austin, TX, Susan A. Bowen, San Antonio, TX, for Defendant. Opinion ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION ORLANDO L. GARCIA, District Judge. *1 On this day the Court considered Plaintiffs' Opposed Motion for Preliminary Injunction (docket no. 28) and attached exhibits (docket no. 29), Defendants' response in opposition (docket nos. 40 and 41), Plaintiffs' reply (docket no. 52), and the parties' oral argument held on February 12, 2014. Plaintiffs in this lawsuit include two couples: a gay

Synopsis Background: Two homosexual couples, one wishing to marry in Texas and another seeking to have their Massachusetts marriage recognized under Texas law, brought action to challenge prohibition of same-sex marriage under Texas constitutional amendment. Couples moved for preliminary injunction to bar enforcement of prohibition.

Holdings: The District Court, Orlando L. Garcia, J., held that: [1] couples established Article III standing; [2] Supreme Court's summary dismissal in Baker v. Nelson was no longer controlling precedent; [3] although court would apply rational basis review, couples' showing that heightened scrutiny was warranted supported finding of likely success on merits; [4] purported reasons for prohibition were not rationally related to legitimate state interests; [5] couple wishing to marry sought existing right to marry, not new right to same-sex marriage; [6] state did not identify any rational, much less compelling, reason for prohibiting same-sex marriage;

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wish to have their same-sex marriage recognized in Texas. The following facts regarding the parties in this case are undisputed and established in the pleadings and supporting declarations.

couple who wishes to marry in the State of Texas but who is unable to do so because the Texas Constitution prohibits same-sex marriage, and a lesbian couple who married in Massachusetts, a state that allows same-sex marriage, and who now seek to have their marriage recognized in Texas. Plaintiffs challenge Texas' prohibition on same-sex marriage, set forth in Article I, Section 32 of the Texas Constitution and corresponding provisions of the Texas Family Code (hereinafter Section 32). They argue that the state's ban on same-sex marriage violates their rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. Accordingly, Plaintiffs seek a preliminary injunction enjoining Defendants from enforcing Section 32, and a declaratory judgment that Texas' ban on same-sex marriage and Texas' failure to recognize out-ofstate same-sex marriages is unconstitutional. Regulation of marriage has traditionally been the province of the states and remains so today. However, any state law involving marriage or any other protected interest must comply with the United States Constitution. In United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the United States Supreme Court recently held that the federal government cannot refuse to recognize a valid statesanctioned same-sex marriage. Now, the lower courts must apply the Supreme Court's decision in Windsor and decide whether a state can do what the federal government cannot discriminate against same-sex couples. The issue before this Court is whether Texas' current definition of marriage is permissible under the United States Constitution. After careful consideration, and applying the law as it must, this Court holds that Texas' prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process. Texas' current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason. Accordingly, the Court finds these laws are unconstitutional and hereby grants a preliminary injunction enjoining Defendants from enforcing Texas' ban on same-sex marriage.

1. Cleopatra de Leon and Nicole Dimetman *2 Plaintiffs De Leon and Dimetman have been in a committed relationship since they met in 2001. De Leon is a United States Air Force veteran. She was on active duty for four years and served six years in the Texas Air National Guard. De Leon was honorably discharged after ten years of service. At the time she met Dimetman, De Leon was serving in the Texas Air National Guard while also working as a statistical analyst. Dimetman was running her own business. As a couple, De Leon and Dimetman have supported one another as they pursued further education. During their time together, De Leon attended and completed graduate school, receiving a Master's degree in Applied Statistics from the University of Texas at San Antonio. Meanwhile, Dimetman attended the University of Texas Law School and became an attorney licensed to practice in the State of Texas. De Leon and Dimetman continue to share finances, live together, and have a loving, stable relationship. De Leon and Dimetman wanted to have a family, and it was important to them to marry one another before they became parents. The couple wanted to marry in Texas, their home state, but Section 32 prevented them from doing so. Therefore, they chose to marry in Massachusetts, a state that recognizes same-sex marriage. They married in Boston on September 11, 2009, after having an eight-year solid, loving relationship. In 2012, De Leon and Dimetman became parents to a child, C. 1 Although De Leon is C's biological mother, both her and Dimetman consider themselves C's mothers. They both share child-rearing duties and obligations. Because Texas does not recognize same-sex marriage, Dimetman could not be considered C's legal parent without going through the adoption process. Therefore, to obtain recognition as C's parent, Dimetman formally adopted C at considerable expense.

I. BACKGROUND A. The Plaintiffs The Plaintiffs in this case are two couples who either desire to marry in Texas or are legally married in another state and now 2. Victor Holmes and Mark Phariss Plaintiffs Holmes and Phariss met in the spring of 1997. At the time, Holmes was in the Air Force and stationed in San Antonio. Phariss was and remains an attorney licensed to

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Plaintiffs seek this Court to preliminarily enjoin Defendants from enforcing Article I, Section 32 of the Texas Constitution and corresponding provisions in the Texas Family Code that ban same-sex marriage. This Order addresses these laws and the corresponding legislative history leading to their enactment.

practice in Texas. The couple quickly developed a friendship that became a dating relationship. On August 9, 1997, the couple went on their first date. They celebrate August 9 as their anniversary. After dating for several months, Holmes and Phariss started living together. Holmes, who joined the Air Force when he was eighteen, began a military program to become a physician's assistant. After completing the program, the Air Force stationed Holmes at different bases throughout the country. Because Phariss continued to live and work in Texas, he and Holmes spent the next eleven years in a long-distance relationship. Depending on where Holmes was serving, Phariss and Holmes would travel as often as every week to see each other. During Holmes' final assignment at Sheppard Air Force base in Wichita Falls, Texas, Holmes and Phariss generally saw one another each weekend and on special occasions during the week. *3 Holmes honorably served our nation for nearly twentythree years and retired as a Major at the end of 2010. After enduring an eleven-year, long-distance relationship, Holmes and Phariss were able to live together again. Holmes and Phariss now want to marry in Texas. On October 3, 2013, the couple applied for a marriage license at the Bexar County Clerk's office, but Defendant Gerard Rickhoff refused to issue one because Holmes and Phariss are both men.

1. Texas Family Code and the initial state ban on samesex marriage The Texas legislature's ban on same-sex marriage dates back to 1997 when Section 2.001 of the Texas Family Code was enacted. Section 2.001 prohibits the clerk of any Texas county from issuing a marriage license to persons of the same gender. See TEX. FAM.CODE ANN. 2.001(b) (West 2013). In 2003, the Texas legislature amended the Texas Family Code to add Section 6.204, which among other things, prohibits recognition in Texas of lawful same-sex marriages executed in other jurisdictions. 2 Section 6.204 declares void all marriages between persons of the same sex and all civil unions. TEX. FAM.CODE ANN. 6.204(b). It also prohibits the State and any of its agencies and political subdivisions from giving effect to any: (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in the state or in any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction. TEX. FAM.CODE ANN. 6.204(c). Supporters of Section 6.204 claimed: The protective marriage relationship between a man and a woman is a fundamental institution whose purpose is the propagation of the species in humanity's collective interest. The state has an interest in protecting this relationship, because it gives women and children the surest protection against poverty and abuse, provides for the healthy psychological development of children, and avoids health risks of same-sex relations and

B. The Defendants Defendant Rick Perry is the Governor of Texas, and Defendant Greg Abbott is Texas' Attorney General. They are both responsible for executing and defending the laws of the State of Texas and its Constitution. Defendant Gerard Rickhoff is the Bexar County Clerk. His duties include providing marriage applications, issuing marriage licenses, and determining whether individuals meet the requirements for marriage. Defendant David Lakey is the Commissioner of the Texas Department of State Health Services, which includes the bureau of vital statistics. He is responsible for prescribing and furnishing to local clerks' offices the marriage forms that require applicants to list the names of a bride and a groom.

C. Texas Laws at Issue

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promiscuity. The state's recognition of same-sex marriages would undermine the institution of marriage and society's ability to transmit its values to younger generations. *4 HOUSE RESEARCH ORG., FOCUS REPORT, MAJOR ISSUES OF THE 78TH LEG., REG. SESS., No. 7812, at 83 (Tex. Aug. 6, 2003). In addition to the grounds cited in the legislative report, supporters of the bill claimed it was necessary to prohibit the recognition of out-of-state civil unions because these: (1) would create a new class of children without mothers or fathers that would increase costs to corporations and governmental entities; (2) could lead to the recognition of bigamy, incest, pedophilia, and group marriage, and (3) [i]f the state does not draw the line here, it would be difficult to draw it anywhere. See HOUSE RESEARCH ORG., DAILY FLOOR REPORT, 78TH LEG., REG. SESS., at 2729 (Tex. Apr. 29, 2003).

HOUSE RESEARCH ORG., H.J.R. 6 BILL ANALYSIS, 79TH LEG., REG. SESS., at 34 (Tex. Apr. 25, 2005). The authors of the amendment drafted it to preclude not only same-sex couples from marrying, but also any separate but equal same-sex institution, such as a civil union. See HOUSE RESEARCH ORG., FOCUS REPORT, AMENDMENTS PROPOSED FOR NOVEMBER 2005 BALLOT, No. 7910, at 9 (Tex. Sept. 15, 2005) (noting civil unions should not be permitted because they would be a way for same-sex couples to circumvent laws protecting marriage by creating a legal arrangement that is substantially the same as marriage). H.J.R. 6 passed following votes in both houses of the Texas legislature. Under Texas law, the governor's approval is not necessary to put a proposed constitutional amendment on an electorate ballot. See TEX. CONST. art. 17, 1(a). Nevertheless, in early June 2005, Governor Rick Perry signed the proposed constitutional amendment at the Calvary Christian Academy in Fort Worth, Texas. After approval by the Texas legislature and Defendant Perry, H.J.R. 6 was placed on the electorate ballot in 2005 as Proposition 2. Proposition 2 passed with approximately 76% of the vote. As a result, Article I of the Texas Constitution now includes the following amendments under Section 32: *5 (a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage. TEX. CONST. art. I, 32.

2. Texas Constitutional Amendment Article I, Section 32 of the Texas Constitution began as House Joint Resolution No. 6 (hereinafter H.J.R. 6), which proposed to amend the Texas Constitution to define marriage as the union of only one man and one woman. H.J.R. Res. 6, 79th Leg., Reg. Sess. (Tex.2005). On April 25, 2005, subdivision (b) was added, which expressly bars the State and any political subdivision thereof from creating or recognizing any legal status identical or similar to marriage. See TEX. CONST. art. I, 32(b). The legislative history of H.J.R. 6 shows that the amendment was supported by the same purported rationale as Section 6.204 of the Texas Family Code. The primary argument in support of H.J.R. 6 was: [T]raditional marriage consisting of a man and a woman is the basis for a healthy, successful, stable environment for children. It is the surest way for a family to enjoy good health, avoid poverty, and contribute to their community. The sanctity of marriage is fundamental to the strength of Texas' families, and the state should ensure that no court decision undermine this fundamental value.

D. National Debate on SameSex Marriage In the last couple of decades, our nation has experienced a politically charged and controversial debate regarding the right to marry, and particularly, the right of samesex couples to marry in the United States. Both state and federal governments have taken center stage in this debate, participating in court proceedings or enacting legislation that either supports or bans same-sex marriage.

1. Other states' positions on same-sex marriage In 1993, the Hawaii Supreme Court was the first court that opened the door to same-sex marriage, holding that the state's prohibition on same-sex marriage was discriminatory under

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popular vote (Maine, Maryland, Washington). See Kitchen v. Herbert, No. 2:13cv217, 2013 WL 6697874, at *5 n. 4 (D.Utah Dec.20, 2013).

the Hawaii Constitution. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 59 (1993). The court remanded the case to allow the state to justify its position and show if the marriage statute was narrowly drawn to further a compelling state interest. Id. at 68. 3 In 1999, the Vermont Supreme Court held that the state of Vermont was required to offer all the benefits of marriage to same-sex couples. Baker v. Vermont, 170 Vt. 194, 744 A.2d 864, 86667 (1999). The determination of whether to provide such benefits to same-sex partners by including them within the marriage statutes, or by creating a parallel domestic partnership system or some equivalent statutory alternative, was left to the Vermont legislature. See id. at 886. The Vermont legislature complied with this mandate by creating a legal status for civil unions. See An Act Relating to Civil Unions, 2000 Vt. Acts & Resolves 91 1(1) (legislative findings). This was the nation's first law granting gay couples nearly all marriage benefits through the formation of a civil union. 4 The reaction to this legislation was immediate and visceral in the next few years. See Bourke v. Beshear, No. 3:13CV750H, 2014 WL 556729, at *2 n. 1 (W.D.Ky. Feb.12, 2014) (citing statutes from over twenty-seven states that enacted anti-same-sex marriage legislation). Then, in 2003, two cases significantly changed the treatment and protection of homosexuals under the law. First, the United States Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protected the sexual relations and privacy of gay men and lesbians. Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Second, the Massachusetts Supreme Court declared that the Massachusetts constitution protected the right of same-sex couples to marry, and therefore, that the state's ban on samesex marriage violated its own state constitution. Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 948, 969 (Mass.2003). Since 2003, states continue to have polarizing views on the issue of same-sex marriage; that is, most states have either legalized same-sex marriage or passed a constitutional amendment or other legislation prohibiting same-sex marriage and civil unions. To this day, six states have legalized same-sex marriage through state court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, New Mexico); eight states have passed same-sex marriage legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont); and three states have legalized same-sex marriage through

2. Federal government and same-sex marriage *6 The federal government has also participated in the samesex marriage debate. In 1996, Congress passed the Defense of Marriage Act (DOMA), which, among other things, barred federal recognition of same-sex marriages deemed legal in other states and barred same-sex civil unions for purposes of federal law. Act. of Sept. 21, 1996, Pub.L. 104199, 110 Stat. 2419. In 2013, the Supreme Court held in United States v. Windsor that Section 3 of DOMA was unconstitutional. 133 S.Ct. at 2696. That same year, the Supreme Court also considered an appeal from a case involving California's Proposition 8. After the California Supreme Court held that California's constitution recognized same-sex marriage, In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008), California voters passed Proposition 8 in November 2008, which amended California's constitution to prohibit same-sex marriage. Then, a California federal court determined that Proposition 8 violated the guarantees of equal protection and due process under the United States Constitution. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1003 (N.D.Cal.2010). The Ninth Circuit Court of Appeals affirmed the district court's holding in Perry v. Brown, 671 F.3d 1052, 1095 (9th Cir.2012), rev'd, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). The case was then appealed to the Supreme Court, but the Court did not address the merits of the question presented. Hollingsworth v. Perry, U.S. , , 133 S.Ct. 2652, 2668, 186 L.Ed.2d 768 (2013). Instead, the Court vacated the Ninth Circuit's opinion for lack of jurisdiction, finding the proponents of Proposition 8 did not have standing to appeal the district court's decision after California officials refused to defend the law. Id. Most recently, six federal district courts have issued decisions declaring states' bans on same-sex marriage to be unconstitutional. See Lee v. Orr, No. 13cv8719, 2014 WL 683680 (N.D.III. Feb. 21, 2014) (applied only to Cook County, Illinois); Bostic v. Rainey, No. 2:13cv 395, 2014 WL 561978 (E.D.Va. Feb.13, 2014) (Virginia); Bourke, 2014 WL 556729 (Kentucky); Bishop v. United States ex rel. Holder, No. 04cv848TCKTLW, 2014 WL 116013 (N.D.Okla. Jan.14, 2014) (Oklahoma); Obergefell v. Wymyslo, No. 1:13cv501, 2013 WL 6726688 (S.D.Ohio Dec.23, 2013) (Ohio); Kitchen, 2013 WL 6697874 (Utah).

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II. ANALYSIS A. Preliminary Matters 1. Plaintiffs' standing [1] [2] As a preliminary matter, the Court notes that Defendants' pleadings and written briefs neither address nor challenge Plaintiffs' standing in this case. 5 However, the Court addresses the issue of standing as it is one of subjectmatter jurisdiction. See Cobb v. Central States, 461 F.3d 632, 635 (5th Cir.2006). Federal courts have no jurisdiction unless a case or controversy is presented by a party with standing to litigate. Taylor ex rel. Gordon v. Livingston, 421 F. App'x 473, 474 (5th Cir.2011) (quoting Nevares v. San Marcos Consol. Ind. Sch. Dist., 111 F.3d 25, 26 (5th Cir.1997)). *7 [3] A plaintiff must meet three elements to establish standing. First, a plaintiff must have suffered an injury in fact which is concrete and particularized. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, a plaintiff must establish a causal connection between the injury and the conduct complained of. Id. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). [4] There is no dispute that Plaintiffs are loving couples in long-term committed relationships, who seek to marry in Texas or have their out-of-state same-sex marriage recognized in Texas. Plaintiffs claim they have suffered real and particularized injuries as a direct result of Defendants' enforcement of Texas' laws banning same-sex marriage. These injuries include far-reaching legal and social consequences, along with the pain of humiliation, stigma, and emotional distress. For example, Plaintiffs note that Texas' refusal to marry or recognize same-sex marriage denies them many state law benefits. Plaintiffs argue that, among other things, current Texas laws do not allow them to: (1) claim statutory protections afforded to married couples upon the death of a spouse, such as intestacy rights. TEX. PROBATE CODE 38, 45; (2) bring an action for wrongful death. TEX. CIV. PRAC. & REM.CODE 71.004;

(3) claim certain protections against the partition of the homestead following the death of a spouse. TEX. CONST. art. 16, 52; (4) receive the community property presumption afforded to married couples. TEX. FAM.CODE 3.003; (5) petition the court for an equitable division of community property, including rights in any pension or retirement plan. TEX. FAM.CODE 7.001, 7.003; (6) seek spousal maintenance if they separate or divorce. TEX. FAM.CODE 8.051; (7) enjoy the benefit of the zone of privacy that heterosexual married couples enjoy in the form of evidentiary privileges between spouses. TEX.R. EVID. 504; (8) enjoy succession rights under state laws of intestacy. TEX. PROB.CODE 45; or (9) have the right to make burial or other decisions regarding the handling and disposition of one another's remains. On October 3, 2013, Plaintiffs Holmes and Phariss applied for a marriage license from the Bexar County Clerk Rickhoff's office. Defendant Rickhoff refused to issue a license because Holmes and Phariss are both men. This denial establishes an Article III injury. See Parker v. D.C., 478 F.3d 370, 376 (D.C.Cir.2007) (holding that courts have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury); see also Bishop, 2014 WL 116013, at *14 (noting couple proved standing because they sought marriage license and were denied such license because of their same-sex couple status); see also Bostic, 2014 WL 561978, at *14. Meanwhile, Plaintiffs De Leon and Dimetman contend that because Texas does not recognize same-sex marriage, Dimetman could not be considered their child's legal parent unless she went through the long administrative and expensive process of adoption. The Court finds these monetary damages constitute a concrete, injury in fact suffered by Plaintiffs due to Texas' ban on same-sex marriage. *8 [5] Furthermore, Plaintiffs allege they have suffered state sanctioned discrimination, stigma, and humiliation as a result of Texas' ban on same-sex marriage. Plaintiffs claim they are considered inferior and unworthy under Texas law.

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case for want of a substantial federal question. Baker, 409 U.S. at 810. As a result, Defendants contend that the Court's summary dismissal in Baker is binding on this Court and the present lawsuit should be dismissed for lack of a substantial federal question. *9 [7] [8] There is no dispute that summary dispositions by the Supreme Court are considered precedential and binding on lower courts. See Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (noting summary dispositions prevent lower courts from coming to opposite conclusions on the issues presented and decided by those actions). There is also no dispute that the questions presented in Baker are similar to the questions presented here. Both cases involve challenges to the constitutionality of a state statute which prohibits same-sex marriage. The ruling of the Supreme Court of Minnesota rejected due process and equal protection arguments similar to those presented by Plaintiffs in this case. However, summary dispositions may lose their precedential value and are no longer binding when doctrinal developments indicate otherwise. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quoting Port Auth. Bondholder's Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n. 3 (2d Cir.1967)). Baker was decided more than forty years ago. This Court finds that subsequent doctrinal and societal developments since 1972 compel this Court to conclude that the summary dismissal in Baker is no longer binding, and that the issue of same-sex marriage now presents a substantial federal question. First, in 1973, the Supreme Court recognized that sex is a quasi-suspect classification. See Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Then, the Supreme Court recognized a new form of heightened scrutiny and applied it to sex-based classifications. See Lalli v. Lalli, 439 U.S. 259, 26465, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); Craig v. Boren, 429 U.S. 190, 19798, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). In 1996, the Supreme Court held that a Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose. See Romer v. Evans, 517 U.S. 620, 63435, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (citing Dep't of Agr. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)) ([I]f the constitutional conception of equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.) (emphasis added).

Stigmatic injury is a form of injury that supports standing in this case. See Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (finding that stigmatic injury often caused by discrimination is a type of noneconomic injury that may be sufficient to support standing); see also Bostic, 2014 WL 561978, at *14 (same). In this case, it is clear that Plaintiffs suffer humiliation and discriminatory treatment under the law on the basis of their sexual orientation, and this stigmatic harm flows directly from Texas' ban on same-sex marriage. See Bishop, 2014 WL 116013, at *9. Furthermore, in equal protection cases when the government erects a barrier to prevent one group from obtaining a benefit that another group receives, [t]he injury in fact ... is the denial of equal treatment resulting from the imposition of the barrier. Ne. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). Accordingly, the Court finds all Plaintiffs in this case have established the denial of equal treatment under Texas law. The Court finds Plaintiffs have satisfied the first standing requirement by establishing they have suffered injuries. Plaintiffs have also established the causation element needed for standing, as the injuries raised are directly related to Texas' ban on same-sex marriage. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Finally, the Court finds Plaintiffs meet the third standing requirement. If this Court issues an injunction prohibiting Defendants from enforcing Texas' marriage laws, Plaintiffs' injuries will be redressedPlaintiffs would be allowed to marry, or have their out-of-state same-sex marriage recognized in Texas. This would allow Plaintiffs to be eligible for the many state-law benefits they are now denied. Accordingly, the Court finds Plaintiffs have standing to bring the claims before this Court.

2. Baker v. Nelson's Precedential Value [6] The next preliminary matter involves Defendants' assertion that Plaintiffs' claims are foreclosed by Supreme Court precedent in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). In 1971, two men from Minnesota brought a lawsuit in state court arguing that Minnesota was constitutionally required to allow same-sex marriage. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (Minn.1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The Minnesota Supreme Court found that Minnesota's restriction of marriage to opposite-sex couples did not violate either the equal protection or the due process clause of the Fourteenth Amendment. Id. at 18687. On appeal, the United States Supreme Court summarily dismissed the

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In Merritt, the court considered a pro se, in forma pauperis, plaintiff's lawsuit challenging Louisiana's ban on same-sex marriages. Id. at *1. The plaintiff was a detainee at the East Louisiana Mental Health System Forensic Unit. Id. Following a show cause order and no briefing, the court dismissed plaintiff's complaint noting the Constitution does not require States to permit same-sex marriages; the unidentified state legislators named as defendants were entitled to absolute immunity from liability under 1983 for their legislative activities; and the plaintiff failed to allege any facts against the Attorney General. Id. at *2. The court in Merritt did not indicate the bases for its ruling. Furthermore, the viability of Baker was never briefed in Merritt. In fact, the plaintiff did not submit briefing on any substantive issue. Therefore, this Court does not find Merritt to be persuasive in this case and declines to follow it. Rather, this Court joins four recent district court decisions rejecting the argument that Baker still has precedential value and bars courts from addressing the issue of same-sex marriage. See Bostic, 2014 WL 561978, at *910; Bourke, 2014 WL 556729, at *1; Bishop, 2014 WL 116013, at *1517; Kitchen, 2013 WL 6697874, at *79. The Court finds Baker is not controlling and does not bar this Court from reviewing Plaintiffs' claims in this case.

Then, in 2003, the Court held that homosexuals had a protected liberty interest to engage in private, sexual activity; that homosexuals' moral and sexual choices were entitled to constitutional protection; and that moral disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy. See Lawrence, 539 U.S. at 564, 571. The Court held that the Constitution protects personal decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing and that homosexuals may seek autonomy for these purposes. Id. at 574. Most recently, in 2013, the United Supreme Court held that the Constitution prevented the federal government from treating state-sanctioned heterosexual marriages differently than state-sanctioned same-sex marriages, and that such differentiation demean[ed] the couple, whose moral and sexual choices the Constitution protects. See Windsor, 133 S.Ct. at 2694. Notably, that same year, while the Court declined to reach the merits in Perry v. Hollingsworth because the petitioners lacked standing to pursue the appeal, the Court did not dismiss the case outright for lack of a substantial federal question. See 133 S.Ct. at 2652. *10 Accordingly, the Court finds that these cases present the type of doctrinal developments that render Baker's, summary dismissal of no precedential value. It is now clear that while state bans on same-sex marriage may have been deemed an unsubstantial question in 1972, the issue is now a substantial federal question based on doctrinal developments in Supreme Court law. See Windsor v. United States, 699 F.3d 169, 178 (2d Cir.2012), aff'd, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (holding that Baker was not controlling as to the constitutionality of DOMA, reasoning that [i]n the forty years after Baker, there have been manifold changes to the Supreme Court's equal protection jurisprudence and that [e]ven if Baker might have had resonance ... in 1971, it does not today). Defendants in this case allege that, despite the doctrinal developments in the above-mentioned cases, some courts have found that Baker survives as controlling precedent and precludes consideration of the issues in this lawsuit. During oral argument, Defendants referred to Merritt v. Attorney General, No. 3:13cv215BAJSCR, 2013 WL 6044329 (M.D.La. Nov.14, 2013) as support for their argument that Baker precludes this Court from analyzing the merits of Plaintiffs' claims. Oral Arg. Tr. p. 36.

B. Preliminary Injunction The Court now considers Plaintiffs' constitutional challenges to Texas' laws banning same-sex marriage in the context of the preliminary injunction Plaintiffs seek.

1. Standard of Review *11 [9] A plaintiff requesting the extraordinary remedy of a preliminary injunction must establish the following four factors: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs any damage that the injunction may cause the opposing party; and (4) the injunction will not disserve the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir.1997).

2. Application (A) Likelihood of Success

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In order to determine whether Plaintiffs are likely to prevail on the merits, this Court must address Plaintiffs' constitutional challenges to Texas' marriage laws, primarily Section 32. Plaintiffs contend that Texas' refusal to allow and recognize same-sex marriage violates their equal protection and due process rights under the Fourteenth Amendment.

440, 105 S.Ct. 3249. Under strict scrutiny review, a state must show the challenged classification is narrowly tailored to further a compelling governmental interest. Grutter v. Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). Intermediate or heightened scrutiny applies to quasi-suspect, discriminatory classifications based on illegitimacy and gender. Cleburne, 473 U.S. at 441, 105 S.Ct. 3249. To survive heightened scrutiny review, a classification (i) Equal Protection Challenge must be substantially related to a sufficiently important [10] [11] Plaintiffs in this case contend that Texas' governmental interest. Id. All other classifications are subject refusal to allow them to marryor refusal to recognize their to rational basis review. Id. at 44041. Under rational basis state-sanctioned out-of-state marriagepursuant to Article I, review, a classification will be upheld as long as there is a Section 32 of the Texas Constitution deprives them of equal rational relationship between the disparity of treatment and protection. The Equal Protection Clause of the Fourteenth some legitimate governmental purpose. Heller v. Doe, 509 Amendment commands that no state shall deny to any person U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). within its jurisdiction the equal protection of the laws. See U.S. CONST. amend. XIV, 1. This essentially means that (a) Plaintiffs argue Texas' marriage laws should be all persons similarly situated should be treated alike. See City subject to heightened scrutiny of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, *12 [13] Plaintiffs argue that Section 32 discriminates 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler against them on the basis of their sexual identity in violation v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 of the Equal Protection Clause. When a state law adversely (1982)). The Constitution neither knows nor tolerates classes affects members of a certain class, but does not significantly among citizens. Plessy v. Ferguson, 163 U.S. 537, 559, interfere with their fundamental rights, courts first determine 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting). how closely they should scrutinize the challenged regulation. While a law enacted for broad and ambitious purposes often Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 45861, 108 can be explained by reference to legitimate public policies S.Ct. 2481, 101 L.Ed.2d 399 (1988). which justify the incidental disadvantages they impose on certain persons, it must nevertheless, at least, bear a rational [14] [15] The Supreme Court consistently applies relationship to a legitimate governmental purpose. Romer, heightened scrutiny to laws that discriminate against a group 517 U.S. at 635, 116 S.Ct. 1620. that it considers a suspect or quasi-suspect classification, i.e. one that has experienced a history of purposeful unequal Plaintiffs argue that refusing to permit a same-sex couple treatment or [has] been subjected to unique disabilities on the to marry under Section 32(a), and failing to recognize basis of stereotyped characteristics not truly indicative of their legal out-of-state same-sex marriages pursuant to Section abilities. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 32(b), demeans the couple, whose moral and sexual 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). In addition to looking choices the Constitution protects . Windsor, 133 S.Ct. at a history of discrimination, courts also consider whether at 2694 (citing Lawrence, 539 U.S. at 588, 123 S.Ct. the characteristics that distinguish the class indicate a typical 2472). Just like the federal law the Court in Windsor class member's ability to contribute to society, Cleburne, 473 reviewed, Section 32 identifies a subset of relationships U.S. at 44041, 105 S.Ct. 3249; whether the distinguishing (i.e. same-sex relationships) for which Texas denies the characteristic is immutable or beyond the group member's same equal rights, responsibilities, and benefits that oppositecontrol, Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, sex couples receive through marriage. Therefore, Plaintiffs 91 L.Ed.2d 527 (1986); and whether the group is a minority contend Section 32 is subject to equal protection review. or politically powerless, Bowen v. Gilliard, 483 U.S. 587, [12] Laws reviewed under the Equal Protection Clause are 602, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987). Plaintiffs argue that homosexuals fulfill all four factors to be considered a subject to one of three levels of scrutiny: strict scrutiny, suspect or quasi-suspect classification, and therefore, that this intermediate scrutiny, or rational basis review. Clark v. Jeter, Court should review Texas' same-sex marriage ban under 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). heightened scrutiny. Strict scrutiny applies to suspect classifications based on race, alienage, or national origin. City of Cleburne, 473 U.S. at

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84. Before 2011, homosexuals could not openly serve in the military, and the military still criminalizes sodomy today. Obergefell, 2013 WL 6726688, at *14. Therefore, Plaintiffs have established that homosexuals have been subjected to a long history of discrimination. *13 Plaintiffs argue that, like other suspect classifications, sexual orientation has no relation to [the] ability of a person to perform or contribute to society. City of Cleburne, 473 U.S. at 44041; see Pedersen v. Office of Pers. Mgmt., 881 F.Supp.2d 294, 31819 (D.Conn.2012) ([T]he long-held consensus of the psychological and medical community is that homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities. ) (quoting 1973 RESOLUTION OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1002 (N.D.Cal.2010) ([B]y every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.); see also Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir.1989) (Sexual orientation plainly has no relevance to a person's ability to perform or contribute to society.) Plaintiffs also contend sexual orientation is immutable. As the Supreme Court acknowledged, sexual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individualeven if one could make a choice. Lawrence, 539 U.S. at 57677, 123 S.Ct. 2472 (recognizing that individual decisions by consenting adults concerning the intimacies of their physical relationships are an integral part of human freedom). Many federal courts agree with Plaintiffs' assertion. See, e.g., Perry, 704 F.Supp.2d at 96466 (holding sexual orientation is fundamental to a person's identity); HernandezMontiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000) (holding that sexual orientation and sexual identity are immutable). Furthermore, the scientific consensus is that sexual orientation is an immutable characteristic. See Pedersen, 881 F.Supp.2d at 32021 (finding that the immutability of sexual orientation is supported by studies which document the prevalence of long-lasting and committed relationships between samesex couples as an indication of the enduring nature of the characteristic.); Perry, 704 F.Supp.2d at 966 (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.); see also

Plaintiffs note that homosexuals have suffered a long history of discrimination. This long history of discrimination against homosexuals is widely acknowledged in federal American jurisprudence. See, e.g., Lawrence, 539 U.S. at 571, 123 S.Ct. 2472 ([F]or centuries there have been powerful voices to condemn homosexual conduct as immoral and lesbians and gay men have suffered a long history of discrimination and condemnation.); Rowland v. Mad River Local Sch. Dist., Montgomery Cnty., Ohio, 470 U.S. 1009, 1014, 105 S.Ct. 1373, 84 L.Ed.2d 392 (1985) (J. Brennan, dissenting) (Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely ... to reflect deep-seated prejudice rather than ... rationality. ); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir.1990) ([H]omosexuals have suffered a history of discrimination.); BenShalom v. Marsh, 881 F.2d 454, 46566 (7th Cir.1989) (Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.); Baker v. Wade, 769 F.2d 289, 292 (5th Cir.1985) (noting that the strong objection to homosexual conduct ... has prevailed in Western culture for the past seven centuries.). The Court agrees that throughout history, many federal and state laws have categorically discriminated against homosexuals. For example, in 1952, Congress prohibited gay men and women from entering the country. See Obergefell, 2013 WL 6726688, at *14; see also Boutilier v. INS, 387 U.S. 118, 120, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 indicate[d] beyond a shadow of a doubt that the Congress intended the phrase psychopathic personality to include homosexuals and labeled homosexuals ill). In 1953, President Eisenhower issued an executive order requiring the discharge of homosexual employees, among others, from all federal employment, and this policy remained in place until 1975. See Exec. Order No. 10450, 18 FR 2489 (1953); see also Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Commit tee by its Subcommit tee on Investigations pursuant to S. Res. 280 81st Congress (December 15, 1960), at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment because of their homosexuality, which was considered a sex perversion that made them unsuitable and a security risk for the jobs). Furthermore, until the Supreme Court's decision in Lawrence in 2003, consensual homosexual conduct was criminalized in many states. Golinski, 824 F.Supp.2d. at 983

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it is narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s]. Id. at 63233. Defendants in this case have identified two bases or purposes for Section 32:(1) to increase the likelihood that a mother and a father will be in charge of childrearing; and (2) to encourage stable family environments for responsible procreation. These bases fail rational basis review as explained below.

G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of SelfIdentified Lesbian, Gay, and Bisexual Adults in a U.S. Probability Sample, 7 SEXUALITY RES. & SOC. POL'Y 176, 186, 188 (2010) (noting that in a national survey, 95 percent of gay men and 84 percent of lesbian women reported that they had little or no choice about their sexual orientation.). Finally, Plaintiffs note that homosexual citizens constitute a minority group that lacks sufficient political power to protect themselves against discriminatory laws. In fact, the history of same-sex marriage bans across the nation illustrates the historical lack of political power possessed by gays and lesbians. Plaintiffs point out that not only do homosexuals fit all factors to be considered a suspect classification, but in fact, several courts have already admitted as much. See, e.g., SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 48084 (9th Cir.2014) (holding use of peremptory strike against gay juror failed heightened scrutiny); see also Pedersen, 881 F.Supp.2d at 294 (finding statutory classifications based on sexual orientation are entitled to heightened scrutiny); Golinski v. Office of Pers. Mgmt., 824 F.Supp.2d 968, 31433 (N.D.Cal.2012) (same). *14 The Court finds Plaintiffs' arguments compelling, and at this preliminary injunction stage, it shows an increased likelihood they will ultimately prevail on the merits. Likely, the Fifth Circuit, and eventually the United States Supreme Court, will weigh in on this issue with clear instructions. For now, the Court finds it is not necessary to apply heightened scrutiny to Plaintiffs' equal protection claim since Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review.

(1) Childrearing [17] [18] There is no doubt that the welfare of children is a legitimate state interest; however, limiting marriage to opposite-sex couples fails to further this interest. Instead, Section 32 causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted. See Bostic, 2014 WL 561978, at *18. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Perry, 704 F.Supp.2d at 967. Homosexual couples are as capable as other couples of raising well-adjusted children. See id. at 980 (Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and welladjusted); Varnum v. Brien, 763 N.W.2d 862, 899 (Iowa 2009) (Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents.). Defendants have not provided any evidentiary support for their assertion that denying marriage to same-sex couples positively affects childrearing. Accordingly, this Court agrees with other district courts that have recently reviewed this issue and concludes that there is no rational connection between Defendants' assertion and the legitimate interest of successful childrearing. To the contrary, this Court finds that far from encouraging a stable environment for childrearing, Section 32 denies children of same-sex parents the protections and stability they would enjoy if their parents could marry. See Obergefell, 2013 WL 6726688, at *20 (noting the only effect the marriage recognition bans have on children's wellbeing is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married); see also Golinski, 824 F.Supp.2d at 992 (The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parents, but rather merely serves to endanger

(b) Section 32 fails equal protection challenge even under rational basis review [16] To survive a rational basis review, Section 32 must bear at least some rational relationship to a legitimate governmental purpose. Romer, 517 U.S. at 631, 116 S.Ct. 1620; see City of Cleburne, 473 U.S. at 446, 105 S.Ct. 3249 (holding that even when there is a legitimate government purpose, the discrimination must bear at least some rational relationship to that purpose); Heller, 509 U.S. at 321, 113 S.Ct. 2637 (noting that rational basis test requires that the proffered justification for a law must find some footing in the realities of the subject addressed by the legislation.). Courts insist on knowing the relation between the classification adopted and the object to be attained. Romer, 517 U.S. at 632, 116 S.Ct. 1620. A law will not survive rational basis unless

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to marry.); Golinski, 824 F.Supp.2d at 993 (The ability to procreate cannot and has never been a precondition to marriage.). This procreation rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating. See Bishop, 2014 WL 116013, at *30. These individualswho cannot or will not procreateare allowed to marry under Texas' current laws. Therefore, Section 32 makes no sense in light of how [it] treat[s] other groups similarly situated in relevant respects, and consequently, encouraging stable environments for procreating does not provide a rational basis for Section 32. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n. 4, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); see also Goodridge v. Dep't of Public Health, 440 Mass. 309, 798 N.E.2d 941, 962 (Mass.2003) (General Laws c. 207 contains no requirement that applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married.); Baker v. State, 170 Vt. 194, 744 A.2d 864, 881 (Vt.1999) (It is equally undisputed that many opposite-sex couples marry for reasons unrelated to procreation, that some of these couples never intended to have children, and that others are incapable of having children. Therefore, if the purpose of the statutory exclusion of samesex couples is to further the link between procreation and child rearing, it is significantly underinclusive.).

children of same-sex parents.); Pedersen, 881 F.Supp.2d at 33637 (finding that the denial of marriage to samesex parents in fact leads to a significant unintended and untoward consequence by limiting the resources, protections, and benefits available to children of same-sex parents.). *15 Furthermore, Defendants' preferred reason fails rational basis because Defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families. See Bishop, 2014 WL 116013, at *29 (Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.). As the Utah court in Kitchen noted: [I]t defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. 2013 WL 6697874, at *25. Defendants' preferred rationale presumes that same-sex couples cannot be good parents this is the same type of unconstitutional and unfounded presumption that the Supreme Court has held cannot stand. See, e.g. Stanley v. Illinois, 405 U.S. 645, 653, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (holding a state could not conclusively presume that any particular unmarried father is unfit to raise a child). The Court finds same-sex couples can be just as responsible for a child's welfare as the countless heterosexual couples across the nation.

*16 Defendants have failed to establish how banning samesex marriage in any way furthers responsible procreation. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages. Perry, 704 F.Supp. at 972. Same-sex marriage does not make it more or less likely that heterosexuals will marry and engage in activities that can lead to procreation. See, e.g., id. at 999; Goodridge, (2) Procreation [19] [20] The procreation argument raised by Defendants 798 N.E.2d at 962. As the Ninth Circuit aptly put it: It is implausible to think that denying two men or two women the also fails. The notion that banning same-sex marriage will right to call themselves married could somehow bolster the encourage responsible procreation assumes that heterosexual stability of families headed by one man and one woman. marriage is naturally procreative. However, procreation Perry, 671 F.3d at 1089. is not and has never been a qualification for marriage. Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) ([W]hat In fact, rather than serving the interest of encouraging stable justification could there possibly be for denying the benefits environments for procreation, Section 32 hinders the creation of marriage to homosexual couples exercising the liberty of such environments. See Bishop, 2014 WL 116013, at protected by the Constitution? Surely not the encouragement *31; Gill v. Office of Pers. Mgmt., 699 F.Supp.2d 374, 378 of procreation since the sterile and elderly are allowed

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of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.); Perry, 704 F.Supp.2d at 998 ([T]he state must have an interest apart from the fact of the tradition itself.); Golinski, 824 F.Supp.2d at 998 ([T]he argument that the definition of marriage should remain the same for the definition's sake is a circular argument, not a rational justification.). *17 Notably, the rationale provided by Defendants as legitimate interests to support Section 32 (procreation, childrearing, and perhaps tradition), is the same rationale that has been uniformly rejected by district courts in the most recent same-sex marriage cases. See, e.g., Bostic, 2014 WL 561978, at *15 (noting that tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia's ban on interracial marriage.); Bourke, 2014 WL 556729, at *7 (holding that tradition cannot alone justify the infringement on individual liberties); Bishop, 2014 WL 116013, at *29 (holding that permitting samesex couples to receive a marriage license does not harm or erode the procreative origins of the marriage institution, any more than marriages of couples who cannot or do not ever wish to naturally procreate); Obergefell, 2013 WL 6726688, at *20 (holding there is simply no rational connection between Ohio's same-sex marriage recognition bans and the asserted goal of responsible childrearing, given that Ohio's ban does not prevent gay couples from having children); Kitchen, 2013 WL 6697874, at *25 (noting that where state offered no evidence that opposite-sex couples would be affected by allowing same-sex marriage, any relationship between [the ban] and the state's interest in responsible procreation is so attenuated as to render the distinction arbitrary or irrational.) (quoting City of Cleburne, 473 U.S. at 446, 105 S.Ct. 3249); Griego v. Oliver, 316 P.3d 865, 886 (N.M.2013) (Regarding responsible procreation, we fail to see how forbidding same-gender marriages will result in the marriages of more opposite-gender couples for the purpose of procreating, or how authorizing same-gender marriages will result in the marriages of fewer oppositegender couples for the purpose of procreating.). Accordingly, the Court finds Defendants have failed to showand the Court has been unable to findsome rational relationship between Section 32 and a legitimate governmental purpose. The Court finds Section 32 is unconstitutional because without a rational relationship to a legitimate governmental purpose, it denies same-sex couples the benefits, dignity and value of celebrating marriage and having their out-of-state marriage recognized. Therefore, the

(D.Mass.2010) (concluding that Section 3 of DOMA did nothing to help children of opposite-sex parents but prevented children of same-sex couples from enjoying advantages flowing from a stable family structure); Goodridge, 798 N.E.2d at 335. As Plaintiffs De Leon and Dimetman can attest, same-sex couples, although unable to naturally procreate, can and do have children. See Windsor, 133 S.Ct. at 2694 (recognizing that laws prohibiting same-sex marriage humiliate[ ] tens of thousands of children now being raised by same-sex couples.); see also Bishop, 2014 WL 116013, at *29. Just like heterosexual couples, samesex couples can have children through assisted reproductive technology and adoption. See Golinski, 824 F.Supp.2d at 992 ([S]ame sex parents can and do have and adopt children.); Baker, 744 A.2d at 882 ([T]he reality today is that increasing number of same-sex couples are employing increasingly efficient assisted-reproductive techniques to conceive and raise children.). Therefore, Section 32 is not connected to any legitimate interest that justifies the denial of same-sex marriage or recognition of legal out-of-state same-sex marriages. To the contrary, as an Ohio district court recently found when confronted with the same question, the only purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: to impose inequality and to make gay citizens unequal under the law. Obergefell, 2013 WL 3814262, at *6. 6 Therefore, the Court finds the argument that allowing samesex couples to marry will undermine procreation is nothing more than an unsupported overbroad generalization that cannot be a basis for upholding discriminatory legislation. See Plyler, 457 U.S. at 21718, 102 S.Ct. 2382.

(3) Tradition [21] While Defendants do not expressly advance tradition as a rational basis for Section 32, they refer to the traditional definition of marriage and appeal to how it is traditionally understood. However, tradition, alone, cannot form a rational basis for a law. See Lawrence, 539 U.S. at 602, 123 S.Ct. 2472 (Scalia, J., dissenting) ( Preserving the traditional institution of marriage ... is just a kinder way of describing the State's moral disapproval of same-sex couples, which, in turn, is not a legitimate reason); Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (Neither the antiquity of a practice nor the fact

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decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.). [24] Therefore, contrary to Defendants' assertion that the issues before this Court are inherently political questions, see Oral Arg. Tr. p. 32, this Court finds that it must determine: (1) what individual rights are at stake in this case; (2) whether those rights are protected by the United States Constitution; (3) and if so, whether Texas' current definition and regulation of marriage impermissibly infringes on those constitutional rights. [25] The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person whom the Constitution protects and, because they are so important, an individual's fundamental rights may not be submitted to vote and may not depend on the outcome of elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (emphasis added). [26] The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution. Oral Arg. Tr. p. 37 (arguing Texas marriage law does not violate Plaintiffs' fundamental right to marry). See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) ([D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals.); United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888) (characterizing marriage as the most important relation in life and as the foundation of the family and society, without which there would be neither civilization nor progress.). *19 While the right to marry is not explicitly mentioned in the text of the Constitution, this right is nevertheless protected by the guarantee of liberty under the Due Process Clause. For example, in Casey, the Supreme Court explicitly noted: Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in

Court holds all Plaintiffs have established a likelihood of prevailing on the merits of their equal protection challenge to Texas' ban on same-sex marriage and refusal to recognize out-of-state same-sex marriages. Because Plaintiffs have shown that Texas' same-sex marriage ban violates their equal protection rights, the law is unconstitutional without the need to reach any other constitutional challenge. Accordingly, Plaintiffs are likely to succeed on the merits of their case.

(ii) Due Process Challenge Since this is a preliminary order, the Court also considers Plaintiffs' due process challenge and their likelihood of success on this separate constitutional claim.

(a) Right to marry (1) Marriage as a fundamental right *18 [22] The Due Process Clause of the Fourteenth Amendment guarantees that all citizens have certain fundamental rights. See Planned Parenthood v. Casey, 505 U.S. 833, 84647, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Plaintiffs Holmes and Phariss contend that Texas' refusal to allow them to marry, pursuant to Article I, Section 32(a) of the Texas Constitution, deprives them of one of these fundamental rights. Plaintiffs argue that while states have the right to adopt regulations including defining marriage, such regulations may not infringe on an individual's fundamental constitutional rights. Defendants counter that it is the State's right to define marriage free from federal interference. They assert that the issues before this Court are inherently political questions and not constitutional issues. Oral Arg. Tr. p. 32. [23] While Texas has the unquestioned authority to regulate and define marriage, see Windsor, 133 S.Ct. at 2693, the State must nevertheless do so in a way that does not infringe on an individual's constitutional rights. See id. at 2692 (noting that the incidents, benefits, and obligations of marriage may vary from state to state but are still subject to constitutional guarantees); see Roberts v. U.S. Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (holding that our federal Constitution undoubtedly imposes constraints on the state's power to control the selection of one's spouse); see also Carey v. Population Servs. Int'l, 431 U.S. 678, 68485, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) ([I]t is clear that among the decisions that an individual may make without unjustified government interference are personal

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the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia. 505 U.S. at 84748; see Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 63940, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (recognizing that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment); see also Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding the right to marry is a central part of the liberty protected by the Due Process Clause).

(2) The State may not infringe on an individual's fundamental rights Given the importance of marriage as a fundamental right and its relation to an individual's rights to liberty, privacy, and association, the Supreme Court has not hesitated to invalidate state marriage laws whenever such laws intrude on an individual's protected realm of liberty. For example, the Court struck down Virginia's law against interracial marriage in Loving v. Virginia, 388 U.S. at 12. The Court found that Virginia's anti-miscegenation statute violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Id.

*20 [30] In this case, Defendants argue the right to marry does not include the right to same-sex marriage. That [27] [28] The Supreme Court has also recognized the right is, Defendants claim this is a definitional issue, in that to marry implicates additional rights that are protected by Plaintiffs are seeking recognition of a new right to samethe Fourteenth Amendment, including the rights to privacy, sex marriage as opposed to the existing right to marry. liberty, and association in marriage. See, e.g., M.L.B. v. This Court finds this argument fails, as the Supreme Court S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 did not adopt this line of reasoning in the analogous case (1996) (citing Boddie v. Connecticut, 401 U.S. 371, 376, of Loving v. Virginia. Instead of declaring a new right to 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)) (noting that choices interracial marriage, the Court held that individuals could not about marriage, family life, and children upbringing are be restricted from exercising their existing right to marry among the association rights the Court considers sheltered by on account of their chosen partner. Loving, 388 U.S. at 12. the Fourteenth Amendment and protected against the State's That is, an interracial marriage was considered to be a subset unwarranted usurpation, disregard, or disrespect); Griswold of marriage, in the same way that same-sex marriage is v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d included within the fundamental right to marry. See Casey, 510 (1965) (noting that marriage involves a right of privacy 505 U.S. at 84748. Section 32(a) explicitly defines marriage older than the Bill of Rights and is a coming together for as the union of a man and a woman, and in doing so, denies better or for worse, hopefully enduring, and intimate to the homosexuals the existing right to marry and to select the degree of being sacred.). This fundamental right to marry partners of their choosing. This, in turn, violates due process also entails the ability to marry the partner of one's choosing. in the same fashion as the anti-miscegenation laws struck See generally Loving, 388 U.S. at 12 (noting due process is down in Loving. See id. violated by the denial of the right to marry a person of another race). Plaintiffs Holmes and Phariss seek to exercise the right to marry the partner of their choosing, just as the plaintiffs in [29] Most recently, the Supreme Court recognized that Loving did, despite the State's purported moral disdain for marriage involves one of the most intimate and personal their choice of partner. As noted by the court in Kitchen: choices a person may make in a lifetime. Lawrence, 539 The alleged right to same-sex marriage U.S. at 574, 123 S.Ct. 2472 (quoting Casey, 505 U.S. at 851, that the State claims Plaintiffs are 112 S.Ct. 2791). The right to marry is central to personal seeking is simply the same right that dignity and autonomy ... central to the liberty protected by is currently enjoyed by heterosexual the Fourteenth Amendment. Id. The Court in Lawrence individuals: the right to make a public also recognized that [p]ersons in a homosexual relationship commitment to form an exclusive may seek autonomy for these purposes, just as heterosexual relationship and create a family with a persons do. Id. partner with whom the person shares an intimate and sustaining emotional bond.

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Zablocki, 434 U.S. at 388, 98 S.Ct. 673; Carey, 431 U.S. at 686, 97 S.Ct. 2010. Overall, the Court finds Defendants have not satisfied their burden of proving that Section 32 is constitutional. Defendants have failed to identify any rational, much less a compelling, reason that is served by denying same-sex couples the fundamental right to marry. Consequently, the Court finds that Plaintiffs have shown a likelihood of success on the merits by showing that Texas' marriage laws violate their due process rights under the Fourteenth Amendment.

2013 WL 6697874, at *16; see also Bostic, 2014 WL 561978, at *12 (Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of ... adult citizens.). This Court finds that Texas cannot define marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry, nor may it deny the same status and dignity to each citizen's decision. See Windsor, 133 5. Ct. at 2689. By denying Plaintiffs Holmes and Phariss the fundamental right to marry, Texas denies their relationship the same status and dignity afforded to citizens who are permitted to marry. It also denies them the legal, social, and financial benefits of marriage that opposite-sex couples enjoy. [31] As the Supreme Court recently recognized, a state's definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities. Id. at 2691; see also Turner v. Safley, 482 U.S. 78, 96, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ([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, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock).); Massachusetts v. US. Dep't of Health & Human Servs., 682 F.3d 1, 11 (1st Cir.2012) (Loss of survivor's social security, spouse-based medical care and tax benefits are major detriments on any reckoning; provision for retirement and medical care are, in practice, the main components of the social safety net for vast numbers of Americans.).

(b) Out-of-state marriage recognition The Court now addresses Plaintiffs De Leon and Dimetman's due process challenge to Article I, Section 32(b), which prevents Texas from recognizing their legal out-of-state same-sex marriage. The Court considers the right to samesex marriage, which the Court finds to be a subset of the existing fundamental right to marry, to be separate and different than the right to marriage recognitionthat is, the right of same-sex couples to have their out-of-state marriage recognized in other states (i.e.Texas). In dealing with the issue of out-of-state same-sex marriage recognition, the Supreme Court in Windsor held that by treating state-sanctioned same-sex married couples differently than state-sanctioned opposite-sex married couples, Section 3 of DOMA violated basic due process principles applicable to the federal government. 133 S.Ct. at 2693. In this case, the Court must decide whether a state can do what the federal government cannotdiscriminate against state-sanctioned same-sex couples and deny them the benefits conferred by marriage. The Court in Windsor did not clarify whether out-of-state marriage recognition implicated a fundamental right, but held that it was a right protected under the Constitution. See id. at 2696 (holding DOMA was unconstitutional as a deprivation of liberty of the person protected by the Fifth Amendment). Therefore, in reviewing Plaintiffs' due process constitutional challenge to Section 32(b), this Court applies a rational basis review, since Section 32(b) fails even under this most deferential standard.

(3) Texas marriage laws do not survive strict scrutiny *21 [32] By categorically denying the fundamental right to marry to a class of citizens, Section 32(a) interfere[s] directly and substantially with the right to marry and can withstand constitutional challenge only if it survives strict scrutiny. See Zablocki, 434 U.S. at 38687, 98 S.Ct. 673 (applying strict scrutiny because statute that prevented noncustodial parents from marrying unless they provided proof of compliance with child support obligations or obtained a court order would prevent some people from ever marrying). Section 32 survives strict scrutiny and is constitutional only if it is supported by compelling state interests and narrowly tailored to effectuate only those interests. See Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993);

(1) Failure to recognize out-of-state marriage lacks rational basis [33] [34] Under rational basis review, the Court must determine whether Texas' marriage laws, specifically Section

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and Proceedings shall be proved, and the Effects thereof.

32(b) banning recognition of legal out-of-state same-sex marriages, is rationally related to a legitimate government purpose. This search for a rational relationship ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 633, 116 S.Ct. 1620. Even under this most deferential standard of review, courts must still insist on knowing the relation between the classification adopted and the object to be attained. Id. at 632.

U.S. CONST., art. IV, 1. Plaintiffs in this case are challenging Texas law, arguing that Section 32 denies them equal protection and due process. Whatever powers Congress may have under the Full Faith and Credit Clause, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause. Graham v. Richardson, 403 U.S. 365, 382, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). *22 [35] [36] Under Texas law, marriages are The Court in Graham rejected an argument similar to the one Defendants raise in this case, finding that Arizona could not presumptively valid in Texas and will be upheld against impose a discriminatory fifteen-year residency requirement claims of invalidity unless a strong reason exists for holding on aliens seeking government aid despite Arizona's claim the marriage void or voidable. TEX. FAM.CODE ANN. that a federal statute gave states the authority to set 1.101 (West 2013). Consistent with that presumption, [t]he their own guidelines. Id . at 38283. Therefore, the Court general rule is that a marriage valid where contracted is finds Defendants' argument unpersuasive, and holds DOMA valid everywhere, and that one void where contracted is void is not a barrier to Plaintiffs' claims that Section 32 is everywhere. Portwood v. Portwood, 109 S.W.2d 515, 522 unconstitutional because it denies recognition to out-of-state (Tex.Civ.App.1937). The validity of a marriage is generally same-sex marriages. determined by the law of the place where it is celebrated. Husband v. Pierce, 800 S.W.2d 661, 663 (Tex.App.-Tyler *23 [39] As the Supreme Court has recognized, marriage 1990, no writ); see also Tex. Emp'r Ins. Ass'n v. Borum, 834 conveys a host of rights, responsibilities, and benefits beyond S.W.2d 395, 399 (Tex.App.-San Antonio 1992, writ denied) the mere act of engaging in the ceremony of marriage. ([T]he validity of a marriage is generally determined by the Windsor, 133 S.Ct. at 269496 (listing various marriage law of the place where it is celebrated rather than the law benefits and rights). Just as the Supreme Court noted that of the place where suit is filed.); Braddock v. Taylor, 592 DOMA divests married same-sex couples of the duties S.W.2d 40, 42 (Tex.Civ.App.1979) (same). Therefore, even and responsibilities that are an essential part of married life if Texas itself would not allow a particular marriage to occur and that they in most cases would be honored to accept within its borders, that marriage generally must be recognized were DOMA not in force, this Court finds that Section in Texas if lawfully performed in another state or country. 32(b) prevents Texas same-sex married couples from taking See Husband, 800 S.W.2d at 66263 (noting that although no on those duties and responsibilities. See id. at 2695; see county clerk in Texas could have lawfully issued a marriage also Turner, 482 U.S. at 94, 107 S.Ct. 2254 (finding that license to a Texas girl without her parents' consent or a court even considering limitations imposed by prison conditions, order, a marriage performed in Mexico was legal and would important benefits and attributes of marriage remain). This be recognized under Texas law); cf. Braddock, 592 S.W.2d at Court finds that by declaring existing, lawful same-sex 42 (refusing to recognize a common law marriage in Texas marriages void and denying married couples the rights, because California did not recognize common law marriages). responsibilities, and benefits of marriage, Texas denies same[37] [38] Defendants argue that Plaintiffs' claims are sex couples who have been married in other states their due process. foreclosed by Section 2 of DOMA, 28 U.S.C. 1738C. Section 2 provides that states may choose not to recognize same-sex marriage, which Defendants contend is authorized by the Full Faith and Credit Clause. This clause states: Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, Furthermore, Section 32(b) demeans one group by depriving them of rights provided for others. As noted by the Supreme Court in Windsor: Responsibilities, as well as rights, enhance the dignity and integrity of the person. And [Texas' laws] contrive[ ] to deprive some couples [married out of state], but not other

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Accordingly, this Court finds Texas' refusal to recognize Plaintiffs' out-of-state same-sex marriage violates due process and implicates the associational rights discussed in cases like Griswold and Zablocki. See Obergefell, 2013 WL 3814262, at *6. Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Id. In other words, even if Defendants had presented a legitimate reason for the enactment of Section 32(b), the Court finds it would be hard to show how this reason is directly connected and outweighs the refusal of individual rights to some citizens while the same rights are conferred on others. Accordingly, the Court holds all Plaintiffs have established a likelihood of prevailing on the merits of their due process challenge to Texas' ban on same-sex marriage.

couples [married out of state], of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, [Texas' laws] force[ ] same-sex couples to live as married for the purpose of [federal law] but unmarried for the purpose of [Texas] law.... This places samesex couples [married out of state] in an unstable position of being in a second-tier marriage [in Texas]. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects. See id. (quoting Windsor, 133 S.Ct. at 2693). In Texas, heterosexual couples enjoy the rights and responsibilities of marriage. By preventing same-sex couples from receiving state and federal governmental benefits afforded to heterosexual married couples, it places same-sex couples in an unstable position of being ... second-tier [citizens]. See id. [40] Applying a rational basis test, this Court does not find justification for the disparate treatment of homosexuals. Defendants have not provided any specific grounds that justify the refusal to recognize lawful, out-of-state samesex marriages that is not related to the impermissible expression of disapproval of same-sex married couples. See id. Defendants mention that Texas' public policy allows the state to deny recognition to valid out-of-state marriages, but fail to articulate what that public policy is. Assuming Defendants' public policy argument refers to preserving Texas' definition of traditional marriage, the Court finds that tradition alone cannot justify the infringement on individual liberties. See Heller, 509 U.S. at 326, 113 S.Ct. 2637. Moreover, Defendants fail to explain how any such public policy can reconcile recognizing some out-of-state marriages but not recognize same-sex marriages. *24 Plaintiffs assert that it is not enough for Texas to disapprove of same-sex marriage; rather, it must declare them void. See Husband, 800 S.W. at 66263. Therefore, for Texas' public policy to allow Texas to deny recognition of out-ofstate marriages, it must declare that when a same-sex married couple crossed the Texas border, their marriage not only did not exist for purpose of Texas law, but never existed at all. This Court agrees with Plaintiffs' assertion that this notion defies logic.

(B) Irreparable injury [41] In order to receive the extraordinary remedy of a preliminary injunction, Plaintiffs also have to establish that there is a substantial threat that failure to grant the injunction will result in irreparable injury. Winter, 555 U.S. at 20, 129 S.Ct. 365; Valley, 118 F.3d at 1050. Plaintiffs allege that Texas' refusal to permit them to marry or recognize their out-of-state marriage deprives Plaintiffs of numerous federal protections, benefits, and obligations that are available to married same-sex couples. See Windsor, 133 S.Ct. at 2683 (noting that over 1,000 federal laws address marital or spousal status). These federal rights include, among others, having the same rights as heterosexual married couples in one another's Social Security benefits, 42 U.S.C. 416, seeking protections under the Family and Medical Leave Act, 29 U.S.C. 2612, and federal Medicaid benefits. Plaintiffs allege that same-sex couples residing in Texas cannot rely upon an out-of-state marriage to confer federal protections, benefits, and obligations. Texas samesex couples who marry in another state must contend with substantial uncertainty regarding whether the federal government will recognize their marriage for all purposes. For instance, while the Internal Revenue Service recently adopted a state of celebration rule in recognizing same-sex marriages, it is unclear whether any other federal agencies will enact similar rules.

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sex marriage, Plaintiffs must establish that their threatened injuries outweigh any damage that the injunction may cause to the State. See Winter, 555 U.S. at 20, 129 S.Ct. 365; Valley, 118 F.3d at 1050. Plaintiffs allege the equities greatly favor an injunction, as there is no harm from issuing a preliminary injunction that prevents the enforcement of a likely unconstitutional statute. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir.2002). Plaintiffs note that a preliminary injunction is necessary because otherwise they will continue to suffer state-sanctioned discrimination and the stigma that accompanies it until they can enjoy the same rights as heterosexual couples.

*25 Indeed, the Department of Labor recently announced that the Family Medical Leave Act applies only to samesex couples that reside in states recognizing their marriage. Section 32 and the corresponding Texas Family Code statutes similarly operate to deny certain benefits to gay and lesbian service members. In an August 30, 2013 letter to military personnel at state-run installations, Texas Military Forces were directed to deny same-sex couples enrollment access to federal healthcare and retirement benefits at Texas-based National Guard facilities. Instead, these service members and their families must travel to federal installations elsewhere in the state to enroll and obtain access to standard military benefits. In response, United States Secretary of Defense, Chuck Hagel, reprimanded Texas and the Texas National Guard for failing to grant full spousal benefits to the partners of gay and lesbian members of the armed forces. The Court finds that Texas' refusal to marry or recognize Plaintiffs' marriage also denies them many state-law benefits, previously noted in this opinion.

*26 Defendants argue a preliminary injunction would irreparably harm the State. Defendants argue that enjoining democratically enacted legislation harms state officials by restraining them from implementing the will of the people that they represent. Maryland v. King, U.S. , , 133 S.Ct. 1, 3, 183 L.Ed.2d 667 (2012); New Motor Vehicle Bd. v. Orrin W. Fox. Co., 434 U.S. 1345, 1351, 98 [42] [43] Furthermore, Plaintiffs have established a S.Ct. 359, 54 L.Ed.2d 439 (1977) ([A]ny time a State is likelihood of success in their constitutional challenges to enjoined by a Court from effectuating statutes enacted by Section 32. Plaintiffs have shown that continued enforcement representatives of its people, it suffers a form of irreparable of Section 32 infringes on their due process and equal injury.). However, this Court disagrees with Defendants. protection rights under the Fourteenth Amendment to the As noted by Plaintiffs during oral argument, the Fourteenth United States Constitution. Federal courts at all levels Amendment[including] the Equal Protection Clause and have recognized that violation of constitutional rights the Due Process Clause [found within]was ratified by the constitutes irreparable harm as a matter of law. See, e.g., American people and made law. That is a protection that Cohen v. Coahoma County, Miss., 805 F.Supp. 398, 406 was voted upon. And a citizen in the United States does not (N.D.Miss.1992). An injury is irreparable if money damages have to go to the ballot box to secure equal protection of the cannot compensate for the harm. Deerfield Med. Ctr. v. City laws. Oral Arg. Tr. p. 50. That is, an individual's federal of Deerfield Beach, 661 F.2d 328, 332 (5th Cir.1981). Not constitutional rights are not submitted to state vote and may only have Plaintiffs suffered financial harm and expenses due not depend on the outcome of state legislation or a state to their inability to marry (e.g, adoption expenses), but they constitution. See Barnette, 319 U.S. at 638, 63 S.Ct. 1178. correctly note that no amount of money can compensate the Therefore, Defendants' first argument fails. harm for the denial of their constitutional rights. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d Defendants' next argument, that Plaintiffs' harms are illusory, 547 (1976) (noting that loss of constitutional freedoms, for also fails because this Court finds Plaintiffs have established even minimal periods of time, unquestionably constitutes irreparable harm through the enforcement of Section 32. irreparable injury); Deerfield, 661 F.2d at 338 (noting Accordingly, the Court finds Defendants have failed to show impairment of the constitutional right to privacy mandates a that the balance of harm favors the State, and finds that the finding of irreparable harm). Accordingly, this Court finds balance of equities favor an injunction. Plaintiffs have carried their burden of establishing they would suffer irreparable injury if Section 32 continues to be enforced (D) Public interest by Defendants. [46] [47] Finally, Defendants contend that enforcement of duly enacted law is inherently in the public interest. Defendants argue that a preliminary injunction in this case (C) Injury outweighs damage from injunction [44] [45] For the Court to issue a preliminary injunction would override a constitutional amendment and the statutory enjoining Defendants from enforcing Texas' ban on samepolicy of the legislature, which are themselves declaration[s]

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Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer ), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence ), and prohibits the federal government from treating state-sanctioned oppositesex marriages and same-sex marriages differently (Windsor ). Applying the United States Constitution and the legal principles binding on this Court by Supreme Court precedent, the Court finds that Article I, Section 32 of the Texas Constitution and corresponding provisions of the Texas Family Code are unconstitutional. These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex. The Court finds this denial violates Plaintiffs' equal protection and due process rights under the Fourteenth Amendment to the United States Constitution. Accordingly, Plaintiffs have carried their burden of clearly showing that the extraordinary remedy of a preliminary injunction is appropriate in this case. Plaintiffs have shown a likelihood of success on the merits, i.e. that Section 32 is unconstitutional; have established that continued enforcement of Section 32 would cause them irreparable harm; have shown that their injuries outweigh any potential harm to Defendants; and finally, the Court concludes a preliminary injunction barring Section 32's enforcement will serve the public interest. See Winter, 555 U.S. at 20, 129 S.Ct. 365; Valley, 118 F.3d at 1050. *28 For these reasons, the Court GRANTS Plaintiff's Motion for Preliminary Injunction (docket no. 28). The Court enjoins Defendants from enforcing Article I, Section 32 of the Texas Constitution, any related provisions in the Texas Family Code, and any other laws or regulations prohibiting a person from marrying another person of the same sex or recognizing same-sex marriage. In accordance with the Supreme Court's issuance of a stay in Herbert v. Kitchen, and consistent with the reasoning provided in Bishop and Bostic, this Court stays execution of this preliminary injunction pending the final disposition of any appeal to the Fifth Circuit Court of Appeals. It is so ORDERED.

of public interest and policy which should be persuasive. Virginian Ry. Co. v. Sys. Fed'n No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789 (1937). However, the Court finds that it is in the public interest to override legislation that, as found here, infringes on an individual's federal constitutional rights. [T]he public interest is promoted by the robust enforcement of constitutional rights. Am. Freedom Def. Initiative v. Suburban 15 Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir.2012). Therefore, a preliminary injunction preventing the enforcement of an unconstitutional law serves, rather than contradicts, the public interest. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir.1996). Defendants also contend that an injunction at this preliminary stage would be injurious to public interest because it would effectively change the legal definition of marriage in Texas, rewriting over 150 years of Texas law, and radically altering the status quo. As mentioned earlier, this Court finds that keeping tradition and history intact is not a justification for the infringement of an individual's rights. *27 [48] Finally, Defendants argue that a preliminary injunction would create numerous legal and practical problems for same-sex couples and Defendants alike, because any decision from this Court would likely be undone by an interlocutory decision of the Fifth Circuit, or a ruling on appeal by the Fifth Circuit or the Supreme Court. They argue that any marriages created on the basis of the preliminary injunction will cease to exist when and if the State's definition of marriage is enforceable at a later time. However, as noted by this Court during oral argument, the Court intends to stay execution of this order pending appeal to prevent any legal and practical complications. 7

III. CONCLUSION The role of the judiciary is to resolve disputes by applying the law to the facts of a particular controversy, independently and impartially. One of the court's main responsibilities is to ensure that individuals are treated equally under the law. Equal treatment of all individuals under the law is not merely an aspirationit is a constitutional mandate. Consequently, equal protection is at the heart of our legal system and is essential for the existence of a free society. Today's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme

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Footnotes

1 2 3 4 5 6 7

The Court uses the letter C in referring to Plaintiffs' child in order to protect his/her identity. See Act of Sept. 1, 2003, 78th Leg., R.S., ch. 124, 1 (West 2003); TEX. FAM.CODE ANN. 6.204 (West 2013). On remand, the circuit court held Hawaii's marriage statute was unconstitutional. Baehr v. Mike, Civ. No. 9113945, 1996 WL 694235, at *22 (Haw.Cir.Ct. Dec. 3, 1996). The government was unable to show the statute furthered a compelling state interest. Id. at *21. In September 1, 2009, the Vermont legislature later permitted same-sex marriage through a statute. See 15 V.S.A. 9, which redefines marriage as the legally recognized union of two people. In the preliminary injunction hearing, Defendants mentioned, for the first time, that Plaintiffs had not made a clear showing that they ha [d] standing to raise claims in this case, because they had not explained what injury they had suffered. Oral Arg. Tr. p. 43. The Obergefell court held that Ohio's refusal to recognize out-of-state same-sex marriages violated equal protection and issued an injunction requiring the state to recognize a same-sex marriage lawfully performed in Maryland. Id. at *7. For the first time, during oral argument, Defendants argued that if the Court granted a preliminary injunction, it would be limited to the Plaintiffs in this case pursuant to Rule 65 of the Federal Rules of Civil Procedure. Oral Arg. Tr. p. 47. The Court disagrees. Rule 65(d) states that an injunction only binds the parties in a lawsuit. FED.R.CIV.P. 65(d). However, it does not limit the applicability of the injunctionthat is, who is affected by the injunction. In this case, because Plaintiffs brought a facial challenge to Section 32, the Court's injunction applies to all same-sex couples who wish to marry in Texas or want to have their out-of-state same-sex marriage recognized in Texas. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F.Supp.2d 891, 901 (W.D.Tex.2013) (enjoining enforcement of a provision that required abortion providers to have hospital privileges within thirty miles of the clinic where they practice, after the court held the provision did not survive a facial challenge and was deemed unconstitutional). Section 32 fails the constitutional facial challenge because, as mentioned before, Defendants have failed to provide anyand the Court finds norational basis that banning same-sex marriage furthers a legitimate governmental interest; that is, the Court finds no set of circumstances under which Section 32 would be valid. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Barnes v. Moore, 970 F.2d 12, 14 (5th Cir.1992) (holding that when Plaintiffs bring a facial challenge to a law, it must be established that there are no set of circumstances under which the law would be valid).

End of Document

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[5] public interest supported grant of the injunction.

2014 WL 997525 Only the Westlaw citation is currently available. United States District Court, M.D. Tennessee, Nashville Division. Valeria TANCO and Sophie Jesty, Ijpe DeKoe and Thomas Kostura, and Johno Espejo and Matthew Mansell, Plaintiffs, v. William Edward Bill HASLAM, as Governor of the State of Tennessee, in his official capacity; Larry Martin, as Commissioner of the Department of Finance and Administration, in his official capacity, and Robert Cooper, as Attorney General & Reporter of the State of Tennessee, in his official capacity, Defendants. No. 3:13cv01159. | Filed March 14, 2014.

Motion granted.

West Codenotes Validity Called into Doubt West's T.C.A. 363113. Attorneys and Law Firms Abby Rose Rubenfeld, Rubenfeld Law Office, PC, John L. Farringer, IV, Phillip F. Cramer, Scott Hickman, William L. Harbison, Sherrard & Roe, Nashville, TN, ASAF ORR, Christopher F. Stoll, Shannon P. Minter, San Francisco, CA, Maureen T. Holland, Holland & Associates, PLLC, Memphis, TN, Regina M. Lambert, Law Office of Regina M. Lambert, Knoxville, TN, for Plaintiffs. Martha A. Campbell, Kevin Gene Steiling, Tennessee Attorney General's Office, Nashville, TN, for Defendants. Opinion MEMORANDUM ALETA A. TRAUGER, District Judge. *1 Before the court is the plaintiffs' Motion for Preliminary Injunction (Docket No. 29), to which the defendants filed a Response in opposition (Docket No. 35) and the Family Action Council of Tennessee (FACT) filed an amicus brief in opposition (Docket No. 43), and the plaintiffs filed a Reply (Docket No. 46) and several Notices of Filing of Supplementary Authority (Docket Nos. 48, 55, 56, and 58). For the reasons stated herein, the motion will be granted.

Synopsis Background: Married, same-sex couples who lived and were legally married in other states before moving to Tennessee brought action against Tennessee officials, challenging constitutionality of Tennessee's antirecognition laws, which voided and rendered unenforceable in Tennessee any marriage prohibited in the state. Couples moved for preliminary injunction to prohibit officials from enforcing the antirecognition laws against them.

Holdings: The District Court, Aleta A. Trauger, J., held that: [1] couples' cause of action accrued, and Tennessee's oneyear statute of limitations began to run, each day their constitutional rights were allegedly violated; [2] couples had likelihood of success on merits of their claim that the antirecognition laws violated their constitutional rights; [3] couples would likely suffer irreparable harm absent the injunction; [4] balance of hardships favored issuance of the injunction; and

OVERVIEW The plaintiffs are three married, same-sex couples who lived and were legally married in other states before moving to Tennessee. 1 Tennessee does not recognize their marriages for one reason only: they do not reflect a union between one man and one woman. See Tenn. Const. Art. XI, 18; Tenn.Code Ann. 363113 (collectively, the AntiRecognition Laws). 2 The plaintiffs challenge the constitutionality of the AntiRecognition Laws. 3 Pending a

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final decision on the merits of their claims, the plaintiffs seek a preliminary injunction that would prevent the defendants from enforcing the AntiRecognition Laws against them. At the outset, given the sensitivity of the issues presented, the court emphasizes the narrowness of the decision it is issuing today. First, the nature of a preliminary injunction remedy is just thatpreliminary. It is not a final judgment on the merits of a case. Instead, it preliminarily enjoins a party (here, effectively, the State of Tennessee) from engaging in a particular action until the court can rule on the merits of the plaintiffs' claims at a later stage, typically with the benefit of more evidence and legal authority. In making its decision, the court must decide, among other things, whether the plaintiffs are likely to prevail on the merits of their claims, not that they have prevailed or that they necessarily will prevail on their claims. In other words, the court's decision today simply reflects its best projection, based on the evidence and the existing state of the law, as to whether the plaintiffs are likely to win their case. Currently, all relevant federal authority indicates that the plaintiffs in this case are indeed likely to prevail on their claims that the AntiRecognition Laws are unconstitutional. That said, by the time that this court is asked to render a final judgment, it may be that other federal courts will have reached a different interpretation that favors the defendants' position. By the same token, it may be that federal courts will continue uniformly to strike down anti-recognition laws, state same-sex marriage bans, and other laws that discriminate based on sexual orientation. The impact of future decisions, which are forthcoming as the result of continuing litigation in other federal trial and appellate courts across the country, will inevitably influence the ultimate disposition of this case. Second, the plaintiffs have not directly challenged Tennessee's refusal to permit same-sex marriages from being consummated in Tennessee. Instead, the plaintiffs challenge only Tennessee's refusal to recognize marriages legally consummated by same-sex couples in other states, such as a same-sex couple that weds in New York (a state that permits same-sex marriage) before moving to Tennessee. *2 Third, even with respect to the AntiRecognition Laws, the plaintiffs seek temporary relief only as to the six specific plaintiffs (three couples) remaining in this lawsuit. They do not seek class relief in their Complaint or in their request for a preliminary injunction.

As explained in this opinion, the plaintiffs have persuaded the court to enjoin enforcement of the AntiRecognition Laws against them, pending a final decision on the merits. The court's order only means that, at least for the time being, Tennessee will not be able to enforce the AntiRecognition Laws against six people (three same-sex couples) until the court renders a final judgment in the case. Thus, even after today, Tennessee's ban on the consummation of same-sex marriages within Tennessee remains in place, and Tennessee may continue to refuse to recognize same-sex marriages consummated in other states, except as to the six plaintiffs in this case. The court's opinion should not be construed in any other way. 4

THE PLAINTIFFS The plaintiffs in this case have filed unrebutted affidavits that describe their personal backgrounds, how they met their respective spouses, when and why they moved to Tennessee, and the harm that they have suffered, or may suffer, from Tennessee's enforcement of the AntiRecognition Laws. The court will summarize the circumstances of each couple briefly.

I. Dr. Valeria Tanco and Dr. Sophia Jesty Valeria Tanco and Sophia Jesty are both professors at the University of Tennessee College of Veterinary Medicine. They met in 2009 at the College of Veterinary Medicine at Cornell University in Ithaca, New York, fell in love in 2010, and legally married each other in New York on September 9, 2011. After spending a year living apart, they sought to find work as professors in the same geographic area. When the University of Tennessee's College of Veterinary Medicine offered positions to both of them, they accepted the offers and began residing together in Knoxville, Tennessee. In addition to certain alleged injuries common to all plaintiffs, Dr. Tanco and Dr. Jesty have several special concerns. First, they purchased a house together, but, because Tennessee law may treat them as strangers rather than as a married couple, they are not assured of the same property protections in their home as a heterosexual married couple. Second, the University of Tennessee health insurance system will not permit them to combine their respective individual health insurance plans into a family plan, because UT's insurance plan incorporates the AntiRecognition Laws. Third, in

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Johno Espejo met Matthew Mansell in approximately 1995 in San Francisco, California. They began dating and have been in a committed relationship since that time. While living in Alameda, California, they decided to start a family together by adopting children from the Alameda foster care system. In December 2007, the foster agency placed a thirteen-month old boy in their home. Approximately five months later, in 2008, the agency placed a newborn girl in their home. On August 5, 2008, Mr. Espejo and Mr. Mansell legally married each other in California. On September 25, 2009, Mr. Espejo and Mr. Mansell legally adopted the two foster children. Mr. Espejo gave up his job as a forklift driver to be a stay-at-home parent for their children. Approximately four years ago, Mr. Mansell began working at a large international law firm in San Francisco, California, conducting conflict-of-interest checks. In 2012, the law firm announced that it would be centralizing and relocating its administrative services, including Mr. Mansell's department, to a new office located in Nashville, Tennessee. In May 2012, Mr. Espejo and Mr. Mansell moved to Franklin, Tennessee, so that Mansell could continue working for the law firm. Mr. Espejo took a part-time job at his local YMCA, which allowed him to balance his duties as a stay-at-home parent with his job. Similar to the fears that Dr. Tanco and Dr. Jesty harbor for the child they are expecting, Mr. Espejo and Mr. Mansell are concerned about the impact of Tennessee's AntiRecognition laws on their children.

the summer of 2013, Dr. Tanco became pregnant through artificial insemination, and her due date is March 21, 2014. Under the existing state of the law in Tennessee, upon the birth of their child, Dr. Jesty will not be recognized as the child's parent, and many of the legal rights that would otherwise attach to the birth of a child (artificially inseminated or otherwise) will not apply to Dr. Jesty or to the child. These include the child's right to Social Security benefits as a surviving child if Dr. Jesty should die, the right for Dr. Jesty to visit her child at a hospital if Dr. Tanco is unable to give consent to her presence at the time the baby is born, and the right of Dr. Jesty to make medical decisions regarding the medical care provided to their baby in the event that Dr. Tanco is unable to make those decisions. Fourth, and finally, they are concerned about the environment in which their child will be raised, fearing that Tennessee's refusal to recognize her parents' marriage will stigmatize her, cause her to believe that she and her family are entitled to less dignity than her peers and their families, and give her the impression that her parents' love and their family unit is somehow less stable.
5

II. Sergeant Ijpe DeKoe & Mr. Thomas Kostura *3 Ijpe DeKoe is a Sergeant First Class in the United States Army Reserves. He resides and is stationed in Memphis, Tennessee. Thomas Kostura is a graduate student at the Memphis College of Fine Arts. In March 2011, Sgt. DeKoe began dating Mr. Kostura, who was a New York resident at the time. They fell in love that year. At some point before August 2011, Sgt. DeKoe was transferred to Fort Dix in New Jersey in preparation for deployment to Afghanistan. On August 4, 2011, before Sgt. DeKoe was deployed, he and Mr. Kostura legally married in New York. In May 2012, after Sgt. DeKoe returned from his deployment to Afghanistan, he and Mr. Kostura moved to Memphis, where was DeKoe was again stationed. On September 3, 2013, the United States Department of Defense began recognizing Sgt. DeKoe and Mr. Kostura's marriage. Although the military recognizes Sgt. DeKoe's marriage to Mr. Kostura, Tennessee does not. Sgt. DeKoe avers that, [a]s someone who has dedicated my career and risked my life to protect American values of freedom, liberty, and equality, it is particularly painful to return home after serving in Afghanistan only to have my citizenship diminished by Tennessee's refusal to recognize our marriage.

IV. Common Statements The plaintiffs' declarations contain statements about their experiences, hopes, and fears. Each couple married for several reasons, including their commitment to love and support one another, to demonstrate their mutual commitment to their family, friends, and colleagues, and to show others that they should be treated as a family. They also married to make a legally binding mutual commitment, to join their resources together in a legal unit, and to be treated by others as a legal family unit, rather than as legally unrelated individuals. Finally, each couple married so that they could access the legal responsibilities of marriage to protect themselves and their families, just as heterosexual couples do. *4 The plaintiffs agree that they have been warmly welcomed by many Tennesseans, including their neighbors and colleagues. However, each couple is aware that Tennessee does not afford them the same rights as oppositesex married couples and that the state government does not

III. Johno Espejo & Matthew Mansell

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On October 23, 2013, the plaintiffs filed this lawsuit, which challenges the constitutionality of the AntiRecognition Laws. On November 29, 2013, the plaintiffs moved to enjoin enforcement of the AntiRecognition Laws against them, arguing that the AntiRecognition Laws violate their rights under the United States Constitution to due process, interstate travel, and equal protection. 6 The government opposes the motion, contending that the claims are untimely, that the plaintiffs are not likely to succeed on the merits of their claims, that the plaintiffs will suffer no irreparable harm in the absence of a preliminary injunction, that the balance of harms favors the government, and that the public interest would be best served by denying the motion. 7

treat their relationship with the same dignity and respect as opposite-sex married couples. Because Tennessee law does not extend them certain rights of marriage, including certain protections in times of crisis, emergency, or death, they are denied the security and peace of mind that those protections provide to other families. Although they acknowledge that they can take additional steps to reduce some of these uncertaintiessuch as executing powers of attorney, wills, and other probate documentsthey aver that these steps would be costly and time-consuming, that opposite-sex married couples would not need to take these measures, and that they would result in only minimal legal protections relative to the full panoply of rights that otherwise attach to state-sanctioned marriage. The couples have also described how Tennessee's refusal to recognize their marriages causes them dignitary and reputational harm. When they interact with Tennessee officials or fill out official forms to identify themselves as married, they brace themselves for degrading experiences that often occur because of Tennessee's refusal to recognize their marriages. They regard these experiences as insulting to their personal dignity, insulting to their family's dignity, and demeaning to their relationships. The plaintiffs also state that, by treating their marriages as if they did not exist, the state of Tennessee encourages private citizens to deny their marriages and exposes them to discrimination in their daily lives. Finally, the plaintiffs aver as follows: Every day that Tennessee refuses to respect our marriage is a day that our family must suffer the indignity, stress, and stigma of not knowing whether or when our marriage will be recognized. Unlike opposite-sex couples who have the security of knowing that their marriage will be universally respected by the state and by private actors, Tennessee's constitutional and statutory denial of recognition to our marriage means that whatever recognition our marriage may receive is only by the forbearance and good graces of private actors.

PRELIMINARY INJUNCTION STANDARD *5 [1] [2] Under Fed.R.Civ.P. 65, the court may issue a preliminary injunction under appropriate circumstances. In assessing whether an injunction is appropriate, the court applies the following standard: A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest. Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir.2012) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). These four considerations are factors to be balanced and not prerequisites that must be satisfied. Nat'l Viatical, Inc. v. Universal Settlements Int'l, Inc., 716 F.3d 952 (6th Cir.2013) (citing Am. Imaging Servs., Inc. v. EaglePicher Indus., Inc. ..., 963 F.2d 855, 859 (6th Cir.1992)); Performance Unlimited v. Questar Pubs., Inc., 52 F.3d 1373, 1381 (6th Cir.1993).

ANALYSIS I. Likelihood of Success on the Merits

V. This Lawsuit and the Preliminary Injunction Motion

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contexts, notwithstanding earlier Supreme Court and circuit

A. Statute of Limitations [3] The parties agree that Tennessee's one-year statute of limitations governs the plaintiffs' claims. See Tenn.Code Ann. 283104(a)(3); Hughes v. Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir.2000). The defendants argue that the one-year statute of limitations bars the plaintiffs' claims.

[4] [5] [6] The continued enforcement of an in the first place (De Leon, Kitchen, Bostic, and Lee ). 9 unconstitutional statute cannot be insulated by the statute In these thorough and well-reasoned cases, courts have of limitations. Kuhnle Bros., Inc. v. Cnty. of Geauga, found that same-sex marriage bans and/or anti-recognition 103 F.3d 516, 522 (6th Cir.1997). A law that works an laws are unconstitutional because they violate the Equal ongoing violation of constitutional rights does not become Protection Clause and/or the Due Process Clause, even under immunized from legal challenge for all time merely because rational basis review, which is the least demanding form of no one challenges it within the applicable state statute constitutional review. of limitations. Id. Where, as here, a law impinges each day on a plaintiff's constitutional rights, a new limitations *6 In light of this rising tide of persuasive post-Windsor period begins to run each day as to that day's damage. federal caselaw, it is no leap to conclude that the plaintiffs Id. Here, the plaintiffs have each alleged various ongoing here are likely to succeed in their challenge to Tennessee's harms resulting from Tennessee's refusal to recognize their AntiRecognition Laws. With respect to the plaintiffs' Equal marriages, including dignitary harms and reputational harms, Protection Clause challenge, the defendants offer arguments as well as daily concerns related to parentage, medical that other federal courts have already considered and have care, insurance, property ownership, and the like. These consistently rejected, such as the argument that notions of injuries occurred within a year of filing suit and, for the federalism permit Tennessee to discriminate against samereasons explained in the next section, likely reflect ongoing sex marriages consummated in other states, that Windsor does deprivations of their constitutional rights. Therefore, the court not bind the states the same way that it binds the federal finds that the statute of limitations does not bar the plaintiffs' government, and that AntiRecognition Laws have a rational claims. basis because they further a state's interest in procreation, which is essentially the only rational basis advanced by the B. Alleged Deprivation of Constitutional Rights defendants here. 10 [7] The parties vigorously dispute whether Tennessee's AntiRecognition Laws violate the plaintiffs' constitutional In particular, at this stage, the court finds Judge Heyburn's rights. The plaintiffs, the defendants, and FACT (as amicus equal protection analysis in Bourke, which involved an curiae ) have thoroughly and cogently briefed their respective analogous Kentucky anti-recognition law, to be especially positions concerning the complex, sensitive, and important persuasive with respect to the plaintiffs' likelihood of success legal issues presented by this case. on the merits of their Equal Protection Clause challenge in this In United States v. Windsor, U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the Supreme Court struck down a provision of the federal Defense of Marriage Act and held that the federal government cannot refuse to recognize valid marriages in states that recognize same-sex marriage. Since the Supreme Court issued Windsor, numerous federal courts, including courts within the Sixth Circuit, have addressed the impact of Windsor on state laws relating to same-sex couples and sexual orientation. These courts have uniformly rejected a narrow reading of Windsorsuch as that advanced by the defendants hereand have found that Windsor protects the rights of same-sex couples in various case. There, the court analyzed the lineage of Supreme Court and Sixth Circuit precedent on the issue of marriage generally and same-sex marriage specifically, the animating principles in Windsor, and the relationship between discriminatory state marriage laws and the United States Constitution's guarantees, to which any state law is subordinate. See 2014 WL 556729, at *312. Although that court strongly suspected that discrimination based on sexual orientation might warrant heightened scrutiny, it nevertheless subjected the anti-recognition law to a rational basis test under the Equal Protection Clause, found that none of the offered justifications satisfied rational basis review, and held that the anti-recognition law was unconstitutional. Id. In a final

court precedent that arguably suggested otherwise. 8 These cases include decisions both inside and outside of this circuit, finding that similar state anti-recognition laws are or likely are unconstitutional (Bourke, Obergefell I and II, and De Leon,), decisions granting a preliminary injunction under similar circumstances (De Leon, Bostic ), and decisions finding that same-sex marriage bans are unconstitutional

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considered married while on military property in Memphis but unmarried off of it, which he understandably finds painful, demeaning, and diminishing. These are harms against which the Constitution protects. See Windsor, 133 S.Ct. at 269596. Also, relative to opposite-sex couples, the plaintiffs are deprived of some state law protections, or at least the certainty that the same rights afforded to heterosexual marriages will be afforded to them. For example, they have no assurance that Tennessee will recognize their ownership of a home as tenants by the entirety, rather than as strangers with divisible interests. To the extent that plaintiffs could secure some of these rights by contract, they will be unfairly forced to engage in time-consuming and expensive measures to secure them, and even then only with respect to a subset of marriage rights.

section, the court explained how its decision was consistent with constitutional values and requirements, was respectful of individual faith, was consistent with the public's desire to maintain the sanctity of marriage, fostered equality under the law, protected minority rights, and was the natural result of a long but steady progression in Supreme Court jurisprudence from Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) through Windsor in 2013. Id. at *912. The anti-recognition laws at issue here and in other cases are substantially similar and are subject to the same constitutional framework. The defendants have not persuaded the court that Tennessee's AntiRecognition Laws will likely suffer a different fate than the anti-recognition laws struck down and/ or enjoined in Bourke, Obergefell, and De Leon. Accordingly, the court finds that the plaintiffs are likely to succeed on the merits of their equal protection challenge, even under a rational basis standard of review. For this reason, the court need not address at this stage whether sexual orientation discrimination merits a heightened standard of constitutional review or whether the plaintiffs are likely to prevail on their additional due process and right to travel challenges.

For Dr. Jesty and Dr. Tanco, and for Mr. Espejo and Mr. Mansell, there is also an imminent risk of potential harm to their children during their developing years from the stigmatization and denigration of their family relationship. The circumstances of Dr. Jesty and Dr. Tanco are particularly compelling: their baby is due any day, and any complications or medical emergencies associated with the baby's birth particularly one incapacitating Dr. Tancomight require Dr. Jesty to make medical decisions for Dr. Tanco or their child. II. Remaining Rule 65 Factors Furthermore, if Dr. Jesty were to die, it appears that her child would not be entitled to Social Security benefits as a surviving A. Irreparable Harm child. Finally, Dr. Tanco reasonably fears that Dr. Jesty will *7 [8] [9] The loss of a constitutional right, even not be permitted to see the baby in the hospital if Dr. Tanco for a minimal period[ ] of time, unquestionably constitutes is otherwise unable to give consent. 12 irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Thus, when reviewing For all of these reasons, the court finds that the plaintiffs a motion for preliminary injunction, if it is found that a have shown that they will suffer irreparable harm from constitutional right is being threatened or impaired, a finding enforcement of the AntiRecognition Laws. See Obergefell of irreparable injury is mandated. Bonnell v. Lorenzo, 241 I, 2013 WL 3814262, at *67; De Leon, 2014 WL 715741, F.3d 800, 809 (6th Cir.2001). 11 Because the court has found at *2425. that the plaintiffs are likely to prevail on their claims that the AntiRecognition Laws are unconstitutional, it axiomatic that the continued enforcement of those laws will cause them to B. Balance of the Equities suffer irreparable harm. *8 [10] [11] [N]o substantial harm can be shown in Moreover, the evidence shows that the plaintiffs are suffering dignitary and practical harms that cannot be resolved through monetary relief. The state's refusal to recognize the plaintiffs' marriages de-legitimizes their relationships, degrades them in their interactions with the state, causes them to suffer public indignity, and invites public and private discrimination and stigmatization. For example, Sergeant DeKoe, who served nearly a year abroad in defense of the United States, is the enjoinment of an unconstitutional policy. Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir.2004); Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 274 F.3d 377, 400 (6th Cir.2001). Here, because the court has found that the AntiRecognition Laws are likely to be found unconstitutional, the balance of the equities necessarily favors the plaintiffs. Tennessee has no valid interest in enforcing

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an unconstitutional policy. Furthermore, the administrative burden on Tennessee from preliminarily recognizing the marriages of the three couples in this case would be negligible. Therefore, the court finds that the balance of the equities favors issuance of a preliminary injunction. 13

C. Public Interest [12] The defendants argue that granting an injunction would override by judicial fiat the results of Tennessee's valid democratic process establishing the public policy of this state, cause harm to Tennessee in the form of an affront to its sovereignty, and create the impression that Tennessee's public policy is subservient to that of other States. (Defs.' Mem. at pp. 2526.) As the defendants point out, Tennessee overwhelmingly passed the constitutional amendment at issue with approximately 80% support in 2006. [13] Although the defendants are correct that issuing an injunction will temporarily stay the enforcement of democratically enacted laws, that is essentially the case with any federal decision that overturns or stays enforcement of a state law that violates the federal Constitution. Ultimately, [i]t is always in the public interest to prevent the violation of a party's constitutional rights. G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir.1994). Thus, [t]he public interest is promoted by the robust enforcement of constitutional rights. Am. Freedom Def. Initiative v. Suburban 15 Mobility for Reg'l Transp., 698 F.3d 885, 896 (6th Cir.2012); Planned Parenthood Ass'n of Cincinnati, Inc., v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir.1987) ([T]he public is certainly interested in the prevention of enforcement of ordinances which may be unconstitutional.); Chabad, 363 F.3d at 43 ([T]he public interest is served by preventing the violation of constitutional rights.); see also Obergefell I, 2013 WL 3814262, at *7; De Leon, 2014 WL 715741, at *2627. Applying that principle here, the court finds that issuing an injunction would serve the public interest because the AntiRecognition Laws are likely unconstitutional.

III. Summary In determining whether a preliminary injunction is warranted, the court's obligation is to balance the four Rule 65 factors. Here, all four factors favor the plaintiffs, and little balancing need be done. Therefore, the court will issue a preliminary injunction that bars enforcement of the AntiRecognition Laws against the plaintiffs. The injunction will remain in force until the court renders judgment on the merits of the plaintiffs' claims at a later stage in this case. Again, the court emphasizes the narrow nature of its holding today: the court's order temporarily enjoins enforcement of the Anti Recognition Laws only as to the six plaintiffs in this case. The court is not directly holding that Tennessee's Anti Recognition Laws are necessarily unconstitutional or that Tennessee's ban on the consummation of same-sex marriages within Tennessee is unconstitutional. *9 At some point in the future, likely with the benefit of additional precedent from circuit courts and, perhaps, the Supreme Court, the court will be asked to make a final ruling on the plaintiffs' claims. At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs' marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against samesex marriage will soon become a footnote in the annals of American history.

CONCLUSION For the reasons stated herein, the plaintiffs' Motion for Preliminary Injunction will be granted, and the court will issue an injunction against the defendants, prohibiting them from enforcing the AntiRecognition Laws against the six plaintiffs in this case. An appropriate order will enter.

Footnotes

This lawsuit was originally filed by four same-sex couples. On March 10, 2014, the parties stipulated to the dismissal of one of the couples (Kellie Miller and Vanessa DeVillez) and defendant Bill Gibbons, Commissioner of the Department of Safety and Homeland Security. (Docket No. 59.) The remaining plaintiffs are Valeria Tanco and Sophie Jesty, Ijpe DeKoe and Thomas Kostura, and Johno Espejo and Matthew Mansell. The remaining defendants are Governor Bill Haslam, Commissioner of the Department of Finance and Administration Larry Martin, and Attorney General Robert Cooper. Tenn.Code Ann. 363113 provides that, among other things, [i]f another state or foreign jurisdiction issues a license for persons to marry, which marriages are prohibited in this state, any such marriage shall be void and unenforceable in this state. Id . at 113(d).

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The statute further provides that it is [ ] the public policy of this state that the historical institution and legal contract solemnizing the relationship of (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage. Id. at 113(a). The Tennessee Constitution, which was amended in 2006 to incorporate the so-called Tennessee Marriage Protection Amendment following a popular referendum, contains essentially the same provisions. To the extent that the court references laws in other states that similarly discriminate against same-sex marriages consummated in another state that recognizes same-sex marriage, the court will refer to those laws without capitalization as anti-recognition laws for ease of reference. In De Leon v. Perry, F.Supp.2d , 2014 WL 715741 (W.D.Tex. Feb.26, 2014), the parties disputed whether the district's injunction against enforcement of a similar Texas anti-recognition law applied only to the plaintiffs in that case, as opposed to all similarly situated plaintiffs statewide. In a footnote, the court found that its preliminary injunction would apply statewide. Id. at *27 n. 7. Here, the plaintiffs have not argued that their injunction should or would apply statewide; to the contrary, they have argued that the narrowness of the requested injunction justifies its issuance (see Docket No. 30 at p. 39 (Any administrative burden on the State from recognizing Plaintiffs' four additional valid marriages would be negligible.)), and their request for relief is limited to the plaintiffs in this case (see id. at p. 40 (Plaintiffs respectfully request that the Court issue a preliminary injunction barring Defendants and those under their supervision from enforcing the AntiRecognition Laws against the four plaintiff couples in this case while this action is pending.) (emphasis added)). Because the plaintiffs have limited their request for preliminary injunctive relief in this fashion, the court expresses no opinion concerning the potential application of its ruling statewide, if these or any other potential plaintiffs were to request broader relief in the future. In support of the plaintiffs' Motion to Ascertain Status (Docket No. 61), the plaintiffs filed a supplemental Declaration of Valeria Tanco (Docket No. 62), which, among other things, stated Dr. Tanco's due date. In support of their motion, the plaintiffs filed a Memorandum of Law (Docket No. 30), an Appendix of cases (Docket No. 31), and a Notice containing separate declarations from each plaintiff (Docket No. 32). In support of their brief in opposition, the defendants filed an Appendix of legal authority (Docket No. 36) and a Notice containing the Declaration of Mark Goins, State Coordinator of Elections (Docket No. 37, Attachment No. 1), and the Affidavit of Connie Walden (id., Attachment No. 2). FACT filed an amicus brief in support of the defendants' position. (Docket No. 43.) See generally Obergefell v. Kasich, 2013 WL 3814262 (S.D.Ohio July 22, 2013) (Obergefell I ) (preliminarily enjoining enforcement of Ohio anti-recognition law); Kitchen v. Herbert, 961 F.Supp.2d 1181, 2013 WL 6697874 (D.Utah Dec.20, 2013) (Utah ban on same-sex marriage unconstitutional); Obergefell v. Wymyslo, 2013 WL 6726688 (S.D.Ohio Dec.23, 2013) (Obergefell II ) (Ohio anti-recognition law unconstitutional); Bishop v. United States, 962 F.Supp.2d 1252, 2014 WL 116013 (N.D.Okla. Jan.14, 2014) (Oklahoma ban on same-sex marriage unconstitutional); Bourke v. Beshear, F.Supp.2d , 2014 WL 556729 (W.D.Ky. Feb.12, 2014) (finding that Kentucky anti-recognition law was unconstitutional); Bostic v. Rainey, F.Supp.2d , 2014 WL 561978 (E.D.Va. Feb.13, 2014) (Virginia ban on same-sex marriage unconstitutional); Lee v. Orr, 2014 WL 683680 (N.D.Ill. Feb.21, 2014) (Illinois ban on same-sex marriage unconstitutional as applied to a particular county); De Leon, 2014 WL 715741 (issuing preliminary injunction barring Texas from enforcing prohibition on recognition of out-of-state same-sex marriages). Notably, Oregon, Virginia, and Nevada have also declined to defend or have abandoned their defense of same-sex marriage bans in those states, on the basis that the laws are unconstitutional. See, e.g. Geiger et al. v. Kitzhaber, et al., Case No. 6:13cv018340MC (D.Or.), Geiger Docket No. 47 at 28 (State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review.); Bostic, 2014 WL 561978, at *2 (On January 23, 2014, Defendant Rainey, in conjunction with the Office of the Attorney General, submitted a formal change in position, and relinquished her prior defense of Virginia's Marriage Laws.); Sevcik et al. v. Sandoval et al., No. 1217668 (9th Cir.) (pending appeal), Sevcik Appellate Docket No. 171 (defendants withdrawing their brief in support of appeal, because intervening caselaw indicated that discrimination against same-sex couples is unconstitutional). In a recent case, the Ninth Circuit also found that classifications based on sexual orientation require heightened scrutiny. See SmithKline Beecham Corp. v. Abbot Labs., 740 F.3d 471, 48384 (9th Cir.2014). Numerous state courts have also found that state bans on same-sex marriage are or likely are unconstitutional. See, e.g ., Garden State Equality v. Dow, 216 N.J. 314, 79 A.3d 1036 (N.J.2013) (in light of Windsor, refusing to stay trial court order requiring New Jersey officials to administer marriage laws equally for same-sex couples). (See Docket No. 35, Defs. Mem., at pp. 1417.) This rule has been applied in a variety of constitutional contexts, including equal protection challenges premised on same-sex discrimination. See Bassett v. Snyder, 951 F.Supp.2d 939, (E.D.Mich.2013) (enjoining Michigan law prohibiting public employers from providing medical and other fringe benefits to any person co-habitating with a public employee unless that person was legally married to the employee, was a legal dependent, or was otherwise ineligible to inherit under the state's intestacy laws); Obergefell

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I, 2013 WL 3814262, at *6 and *6 n. 1 (collecting cases); De Leon, 2014 WL 715741, at *25; see also Elrod, 427 U.S. at 373 (First Amendment); Ramirez v. Webb, 835 F.2d 1153, 1158 (6th Cir.1987) (Fourth Amendment); Deerfield v. Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981) (fundamental right to privacy under Fourteenth and/or Ninth Amendment) (cited approvingly in Bonnell, 241 F.3d at 809). The state has taken the position that the plaintiffs' fears, including those of Dr. Tanco and Dr. Jesty with respect to the upcoming birth of their baby and their rights in their home should one of them die, are speculative, conjectural, and hypothetical. But the court need not wait, for instance, for Dr. Tanco to die in childbirth to conclude that she and her spouse are suffering or will suffer irreparable injury from enforcement of the AntiRecognition Laws. At least two federal courts have similarly found that, where laws discriminating against same-sex marriages are likely to be found unconstitutional, the balance of the equities unequivocally favors the plaintiffs. As explained in ObergefelI I: No one beyond the plaintiffs themselves will be affected by such a limited order at all. Without an injunction, however, the harm to Plaintiffs is severe. Plaintiffs are not currently accorded the same dignity and recognition as similarly situated oppositesex couples. Moreover, upon Mr. Arthur's death, Plaintiffs' legally valid marriage will be incorrectly recorded in Ohio as not existing. Balanced against this severe and irreparable harm to Plaintiffs is the truth that there is no evidence in the record that the issuance of a preliminary injunction would cause substantial harm to the public. 2013 WL 3184262, at *7; see also De Leon, 2014 WL 715741, at *2526 (finding that injury to plaintiff outweighed damage to Texas from enjoining enforcement of same-sex marriage ban and anti-recognition law, and stating that an individual's federal constitutional rights are not submitted to state vote and may not depend on the outcome of state legislation or a state constitution).

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2014 Thomson Reuters. No claim to original U.S. Government Works.