4:04-cv-00848 #304

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA
MARY BISHOP,
SHARON BALDWIN,
SUSAN G. BARTON, and
GAY E. PHILLIPS,
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
SALLY HOWE-SMITH, in her official
)
capacity as Court Clerk for Tulsa
)
County, State of Oklahoma, et al.,
)
)
Defendants,
)
)
and
)
)
BIPARTISAN LEGAL ADVISORY
)
GROUP,
)
)
Intervenor Defendant. )
No. 04-CV-848-TCK-TLW
PLAINTIFFS REPLY BRIEF IN SUPPORT OF MOTION FOR

JUDGMENT ON AMOUNT OF APPEAL-RELATED
ATTORNEYS FEES
Don G. Holladay, OBA No. 4294
James E. Warner III, OBA No. 19593
H OLLADAY & C HILTON PLLC
204 N. Robinson, Ste. 1550
Oklahoma City, OK 73102
(405) 236-2343 Telephone
(405) 236-2349 Facsimile
Joseph T. Thai, OBA No. 19377

300 Timberdell Rd.
Norman, OK 73019
(405) 204-9579 Telephone
thai@post.harvard.edu
January 21, 2015
Defendants response and supporting affidavits are contradicted by the

record, sound appellate practice, applicable precedent, and the actions of her own
attorneys on appeal, which speak louder than her arguments. Defendants
submissions do not seriously call into question the reasonableness of Plaintiffs
requested attorneys fees.
Before turning to each of the misplaced grounds in Defendants response, it is
worth taking stock of three revealing absences from Defendants submissions. First,
Defendants response displays a total absence of awareness of the novelty and
complexity of the marriage equality issues presented and their surpassing
importance to the lives of thousands of Oklahoma families. Defendant now
characterizes the case on appeal as a gnat that Plaintiffs counsel unreasonably
killed with a howitzer. Br. in Opp. at 17. But in the Tenth Circuit, Defendant
obtained permission to file her 20,736-word defense of Part A by describing the
appeal as raising one of the most important legal questions facing the federal
judiciary today. Ex. 1, Aplt. Sally Howe Smiths Unopposed Motion for Leave to
File Oversized Br. at 2. Furthermore, far from insignificant, Defendant mounted a
thorough and vigorous defense of Part A on federalism, due process, equal
protection,
and
other
grounds,
including
sophisticated
arguments
that
constitutional principles and controlling Supreme Court precedents compelled

reversal. See Ex. 2, Aplt.s Principal Br. at 20-88.
Second, Defendants affiantsneither of whom purport to be federal
appellate, Supreme Court, or constitutional law expertsalso display an absence of
understanding of the novelty and complexity of the issues as well as sound

appellate strategy. Consequently, they conflate the minimum necessary to defend
this Courts judgment with the prudent and reasonable. For example, affiant Sartin
contends that [a]ppeals from summary judgment are not difficult, that only a
small percentage of cases are reversed on appeal, and that a floodgate of
favorable federal court decisions made Plaintiffs robust response to Defendants
forceful appealand the addition of a third attorney with appellate, Supreme
Court, and constitutional law expertisetotally unnecessary. Sartin Aff. 8, 9,
10.1 But of course this case presented a difficult constitutional question of first
impression before the Tenth Circuit and every other federal circuit court at the
time, which yielded a favorable but deeply divided 2-1 decision in the Tenth Circuit,
a favorable but equally divided 2-1 decision in the Fourth Circuit, see Bostic v.
Schaefer, 760 F.3d 352 (4th Cir. 2014), and an unfavorable but again split 2-1
decision in the Sixth Circuit, see DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2015). For
her part, affiant Jorgenson attests that she would have defended this Courts
judgment only on the issues upon which my clients had prevailed in this Court
the invalidation of Part A on equal protection grounds under rational basis.
Jorgenson Aff. 9. This minimalist approach misses the fact that the Tenth Circuit
could have affirmed on any ground supported by the record, and indeed affirmed on
But see Oreck Direct, LLC v. Dyson, Inc., No. 072744, 2009 WL 1649503, at *3
(E.D. La. June 8, 2009) (The use of appellate specialists for appellate litigation is
certainly reasonable); Antonin Scalia and Bryan A. Garner, Making Your Case: The
Art of Persuading Judges 147 (2008) (observing that appellate advocacy and trial
advocacy are different specialties).
1
a ground upon which Plaintiffs did not prevail in this Court. Likewise, the
preservation of alternative grounds for Supreme Court review required Plaintiffs to
press them at the circuit level. See Plaintiffs Motion for Judgment on Amount of
Appeal-Related Attorneys Fees at 11 (Plaintiffs Motion).
Third, and most tellingly, wholly absent from Defendants submissions is any
acknowledgment, assertion, or counter-affidavit regarding the representation
provided by Defendants own team of attorneys, which would constitute a highly
relevantif not the most relevantbasis for supporting Defendants contentions
that Plaintiffs counsel exceeded what reasonable appellate representation required
in this case. But what is publicly known saps Defendants assertions of all
credibility. For example, Defendant argues that the addition of Prof. Thai as a third
member of Plaintiffs Tenth Circuit team was wholly unnecessary and resulted in
needless duplication of effort and expenditure of time to familiarize himself with
the law and the facts. Br. in Opp. at 13. Yet Defendant staffed her Tenth Circuit
appeal with four attorneys, three of whom also were not on the briefs below on
summary judgment.2 Additionally, Defendant disparages Mr. Holladays attendance
of oral argument in the Tenth Circuits companion case of Herbert v. Kitchen as
unnecessary, asserting that he simply could have listened to the audio file of oral
argument after its release. Br. in Opp. at 8. But Defendants own counsel also
attended that oral argument, perhaps appreciating the incomparable value of
Compare Defendant Sally Howe Smiths Cross-Motion for Summary Judgment at
43, with Ex. 2, Aplt.s Principal Br. at 89; see also Plaintiffs Motion at 16 n. 6
(comparing Plaintiffs lean staffing with much larger appellate teams in other
contemporaneous same-sex marriage appeals).
2
watching as well as listening to questioning by the very three judges who would
hear argument on the same issues the following week in this appeal.3 Relatedly,
though Defendant argues that it was unnecessary and duplicative for Plaintiffs to
have all three attorneys attend oral argument in the Tenth Circuit, Br. in Opp. at 7,
Defendant herself had three attorneys at oral argument sitting at counsel table
across from Plaintiffs counsel.4
Finally, and most critically, Defendants
submissions fail to account for her aggressive legal teams own appreciation ofand
considerable contribution tothe complexity and difficulty of the appeal. See City of
Riverside v. Rivera, 477 U.S. 561, 580 n. 11 (1986) (The government cannot litigate
tenaciously and then be heard to complain about the time necessarily spent by the
plaintiff in response).5
These glaring absences speak volumes about the credibility of Defendants
3
See Kristi Eaton, Associated Press, Oklahoma Gay-Marriage Case Before U.S.
Appeals Court, at http://www.washingtontimes.com/news/2014/apr/17/oklahomagay-marriage-case-before-us-appeals-court/#ixzz3OvmhzeqT (Alliance Defending
Freedom, which also had a representative at the Utah oral arguments, left the court
encouraged, [Byron] Babione said.). Analogously, as this Court is well aware, there
is no substitute for seeing a witness testify, which is why appellate courts defer to
trial courts credibility determinations.
4
Likewise, at the Kitchen argument, each side had three attorneys at counsel table.
Cf. Scalia and Garner, supra, at 163 (It is helpful to have cocounsel (perhaps a
junior colleague) with you at counsel table).
5 Defendant cites her oath to defend the Oklahoma Constitution as justification for
her vigorous defense of Part A, see Br. in Opp. at 1, but of course she took an oath
first to defend the Constitution of the United States. Okla. Const. art. 15 1. State
officials elsewhere in the country have refused to defend similar marriage bans on
the ground that they are unconstitutional. See Niraj Chokshi, Seven Attorneys
General Wont Defend Their Own States Gay-Marriage Bans, Washington Post (Feb.
20, 2014), at http://www.washingtonpost.com/blogs/govbeat/wp/2014/02/20/sixattorneys-general-wont-defend-their-own-states-gay-marriage-bans;
see
also
Hollingsworth v. Perry, 133 S. Ct. 2652, 2660 (2013) (governor, attorney general,
and other state and local officials refused to defend same-sex marriage ban).
attacks on the reasonableness of Plaintiffs requested attorneys fees. Plaintiffs now

address each of those misplaced arguments in turn.
1. Work on Cross-Appeal. Defendant first contends that Plaintiffs should
not be awarded time devoted to the cross-appeal on the Principal and Response
Brief or the Reply Brief. Br. in Opp. at 3-4. Defendants contention is factually
erroneous. With one minor exception,6 the time entries listed by Defendant for the
Principal and Response Brief pertained solely to the appeal rather than the crossappeal. As attested in each affidavit submitted by Plaintiffs counsel, no work for
the cross-appeal was included in Plaintiffs fee request. See Holladay Decl. 13;
Thai Decl. 12; Warner Decl. 8. However, relying only on the title of Plaintiffs
brief as a Principal and Response Brief, both Defendant and affiant Sartin
wrongly conclude that all entries with that label must have been devoted half to the
cross-appeal and therefore must be divided by half. See Br. in Opp. at 4; Sartin Aff.
13.7 As for Plaintiffs Reply Brief, the arguments in it applied equally to Part A
and Part B, with the exception of three pages which Plaintiffs attorneys (consistent
with their declarations) did not include in their submitted time entries. See Aplee.s
Mr. Warner inadvertently included in his time entries .2 hours ($55 total) for
preparing the notice of appeal.
7 Even a cursory review beyond the cover of the Principal and Response Brief (a title
corresponding to Fed. R. App. P. 28.1(c)(2)) discloses that most of the document was
devoted to defending this Courts judgment. See Aplee.s Principal and Response Br.
at ii-iv (Table of Contents); Plaintiffs Motion at 12-13. However, affiant Sartins
Exhibit A inserts the phrase for Cross-Appellants and the billing code cr-ap in
reproducing the time entries of Plaintiffs attorneys; they do not appear in the time
entries submitted by Plaintiffs counsel.
6
Reply Br. 1-7, 10-16.8 Those entries therefore are compensable.9

2. Review of Post-Argument Authorities. Defendant next challenges
counsels time spent studying decisions in other same-sex marriage cases after oral
argument. Br. in Opp. at 4-5. This objection is indefensible. First, Defendant fails to
note that she submitted her own post-argument notice of supplemental authority
regarding the effect of Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct.
1623 (2014).10 Second, unlike Schuettea reverse affirmative action casethe
federal cases reviewed by Plaintiffs counsel deciding the constitutionality of
marriage bans were directly on point. As such, they were authority which Plaintiffs
counsel reasonably kept abreast of.11 Third, on-point post-argument authority
would be highly relevant at the rehearing and en banc rehearing stage in the Tenth
Circuit (if necessary) and at the certiorari stage in the Supreme Court.12
3.
Response to Certiorari Petition. Defendants contention that
Plaintiffs counsel supported her request for certiorari in order to climb aboard the
This is not surprising or unreasonable, given that Defendants own 13,881-word
Response and Reply Brief was chiefly devoted to undifferentiated arguments
applicable to both the appeal and cross-appeal. See Ex. 3, Aplt.s Response and
Reply Br. at 1-46.
9
See Robinson v. City of Edmond, 160 F.3d 1275, 1283 (10th Cir. 1998) (reversing
district court exclusion of time for unsuccessful claims, as they and prevailing
claims were intertwined and based on related legal theories).
10
See Supp. Auth. filed Apr. 29, 2014 by Defendant (10th Cir. Dkt. No. 10171329).
11 Cf. Bishop v. Smith, 760 F.3d 1070, 1097 and n. 3 (10th Cir. 2014) (Holmes, J.,
concurring) (citing several interim decisions); FBR Capital Markets & Co. v. Hans,
12 F. Supp. 3d 59, 60 (D.D.C. 2014) (allowing recovery for time spent on
supplemental authority relevant to issues in case). Furthermore, because plaintiffs
counsel in Kitchen submitted letters of supplemental authority for each favorable
ruling, Plaintiffs counsel in this case avoided duplication by not expending time to
submit similar letters.
12
See Br. for Resp. on Pet. for Writ of Cert. at 12 n. 15, Smith v. Bishop, No. 14-136.
8
outbound train for fame and glory, Br. in Opp. at 17, allegedly against the interests
of Plaintiffs themselves, see Sartin Aff. 16, displays either a lack of awareness of
the basic difference in legal effect between a Tenth Circuit and a Supreme Court
decision, a lack of appreciation for the acute inequality that married same-sex
couples would continue to suffer without a national-level decision affirming their
right to marry, or both. Even after Plaintiffs prevailed in the Tenth Circuit, travel
to more than a dozen states outside of the Tenth Circuit would have instantly
rendered married same-sex couples legal strangers, with potentially severe
consequences in case of sickness, injury, or death. Supreme Court reviewthough
not without its riskshad the potential to secure marriage equality for Plaintiffs
wherever they traveled in the United States. Supporting certiorari was not a light
decision for Plaintiffs to direct counsel to take, but certainly a reasonable one.13 The
time Plaintiffs counsel spent supporting certiorari is therefore compensable.14
4. Coordination and Review of Amici Briefs. Defendants brief misstates
Plaintiffs time entries regarding amicus briefs as coordinating, assisting and
The fact that the plaintiffs in each of the other six cases pending on certiorari
along with Defendants petition also supported Supreme Court review underscores
the reasonableness of Plaintiffs support of certiorari in their case. See Amy Howe,
Todays Orders: Same-Sex Marriage Petitions Denied, SCOTUSblog (Oct. 6, 2014),
at
http://www.scotusblog.com/2014/10/todays-orders-same-sex-marriage-petitinsdenied (linking to petitions and responses). Moreover, if the Supreme Court had
granted certiorari in one or more of those petitions, as many Supreme Court experts
had expected, see Amy Howe, Tuesday Round-Up, SCOTUSblog (Oct. 7, 2014), at
http://www.scotusblog.com/2014/10/tuesday-round-up-242, then the best way for
Plaintiffs counsel to defend their clients interests would have been to secure a seat
at the table.
14 Cf. Jorgenson Aff. 6 (finding it unfortunate that Plaintiffs are not seeking
compensation for the exceptionally valuable services of Jeffrey Fisher on the
response to Defendants certiorari petition).
13
drafting amicus briefs in support of Plaintiffs position. Br. in Opp. at 7 (emphasis

added). Affiant Sartin likewise misstates Plaintiffs entries, which involved
coordinating amici efforts in defense of this Courts judgment, and reviewing of
their drafts, but nowhere involved drafting those briefs, Sartin Aff. 17, which
would have been unethical. Efforts to coordinate and assist amici in a case raising
issues of this novelty, complexity, and importance are reasonableas witnessed by
the numerous amici supporting Defendants own side, see Bishop, 760 F.3d at 11141126 (list of amici)and compensable.15
5. Travel Costs. For the reasons given above, Defendants arguments
against the reasonableness of Mr. Holladays attendance of the Kitchen argument,
and Mr. Warner and Prof. Thais attendance of argument in this case, see Br. in
Opp. at 7-10, lack all credibility.16
6. Secretarial Work. Defendant asserts that Prof. Thais time spent
formatting, proofing, and finalizing the response brief is not compensable because
See Zbaraz v. Hartigan, No. 84-C-771, 1988 WL 84721, at *10 (N.D. Ill. Aug. 5,
1988) (awarding attorneys fees for compensation relating to 36.1 hours of
conferences with amici or review of amici briefs because case involved novel
questions of law which implicated many medical and scientific issues, thus
necessitating the large number of amicus curiae briefs.); Richard Seamon et al.,
The Supreme Court Sourcebook 288 (2013) (Scholars and advocates have identified
a number of ways in which sympathetic amici have the ability to influence the
Court).
16 In addition, both Defendant and affiant Sartin rely on Smith v. Freeman, 921
F.2d 1120 (10th Cir. 1990), to argue that travel time should be discounted by 75%.
But the attorney in Smith drove to Denver, and the Tenth Circuit merely affirmed a
district court reduction of that non-productive driving time rather than imposing a
percentage ceiling. Id. at 1122. In any event, by flying rather than driving,
Plaintiffs counsel could more effectively and efficiently prepare for oral argument
en route, and to avoid double billing, Plaintiffs counsel included the travel time but
not the attendant preparation time in their submitted time entries.
15
such tasks are secretarial work. Br. in Opp. at 8. But no higher authorities on
appellate brief writing than Justice Scalia and Bryan Garner urge that [y]ou
yourself must proofread [your brief] two more times than you think necessary.
Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading
Judges 125 (2008). Proofing and finalizing a brief are not merely secretarial tasks;
they provide invaluable last opportunities to make substantive corrections and
revisions to ensure that the filing is as persuasive and professional as possible.17
7. Reasonable Billing Judgment. Finally, arguing that Plaintiffs should
receive no more than $100,000 in attorneys fees, based on how Defendants affiants
would have minimally handled this appeal, Defendant asserts broadly that
Plaintiffs counsel devoted too much time and effort to drafting one Response Brief
and preparing for one 15 minute oral argument. Br. in Opp. at 11. Defendants
affiants essentially would have compiled an appellate brief from the summary
judgment briefing and this Courts opinion. See Sartin Aff. 9; Jorgenson Aff. 9.
Their mechanical approach runs counter to expert opinion on sound appellate
practice,
considering
the
markedly
different
perspectives,
demands,
and
opportunities on appeal.18 Cf. Awad v. Ziriax, No. CIV-10-1186-M, 2014 WL
See West Virginians for Life v. Smith, 952 F. Supp. 342, 345 (S.D. W.Va. 1996)
(awarding attorneys fees for time spent on tables of authorities and contents as
reasonable); cf. Leroux v. Astrue, No. 310CV2634M, 2012 WL 6757772, at *2
(N.D. Tex. Oct. 26, 2012) (Time spent proofreading, cite checking, and correcting a
brief requires some legal skill and knowledge and could not generally be easily or
competently performed by clerical staff).
18 See, e.g., Andrew L. Frey & Roy T. Engelert, Jr., How to Write a Good Appellate
Brief, Litigation, at 6 (Winter 1994) (observing that appellate briefing poses special
problems, but presents special opportunities, for advocacy, and that [t]he most
17
1660650, at *2 (W.D. Okla. Apr. 25, 2014) (awarding $303,333.49 in attorneys fees,
including all time by six attorneys to draft, review, and edit briefs, because due to
the nature of this case, and the complex issues briefed . . . multiple revisions were
not only reasonable but an example of good brief writing practices).19 Similarly,
Defendant and affiant Sartin fail to appreciate the nature and importance of even
one 15 minute oral argument, and the preparation required to effectively answer
any and all questions that three appellate judges might raise regarding any factual
or legal issue generated from the record, the extensive briefing (including
Defendants), numerous precedents, and their own preparations.20 But no doubt the
Tenth Circuit panel would expect and appreciate such thorough preparation.
common mistake made by trial lawyers is to think that they should do the same
thing in the appellate court that they did in the trial court); James vanR. Springer,
Some Suggestions on Preparing Briefs on the Merits in the Supreme Court of the
United States, 33 Cath. U. L. Rev. 593, 597 (1984) (Brief writing is a creative art
rather than merely a mechanical exercise . . . . The artist must develop and refine
an overall concept, must have the daring to take a novel approach, and must have
the patience and discipline to rework his material).
19 See also Scalia and Garner, supra, at 80 (effective appellate writing requires one
to [s]it down and write. Then revise. Then revise again. Finally, revise. Justice
Brandeis, who often reworked his opinions 15 to 20 times, stated that [t]here is no
great writing. Only great rewriting. Writing the Essay, Brandeis Univ., at
http://www.brandeis.edu/acserv/fellowships/essays.html; see Bryan Garner, The
Elements of Legal Style 18-19 (2002).
20 One of the most accomplished appellate advocates in modern times advises that,
particularly [i]n this era of abbreviated argument times and prepared, active
judges, the advocate must be flexible . . . . The only way to develop the necessary
flexibility is relentless preparationat the end of the day, that remains the one
overriding key to presenting an effective oral argument. John G. Roberts, Jr.,
Thoughts on Presenting an Effective Oral Argument, 7 School Law in Review, at 6
(1997); see also Scalia and Garner, supra, at 150 (The most difficult element of oral
argument is the unexpected . . . It means preparing for hundreds of different
questions even though you may be asked only 20.); id. (observing that skepticism
about the importance of a mere 20 minutes or half an hour of oral argument has
proved false in every study of judicial behavior that we know).
10
Respectfully submitted,
s/ Don G. Holladay
Don G. Holladay, OBA No. 4294
James E. Warner III, OBA No. 19593
HOLLADAY & CHILTON PLLC
204 N. Robinson Ave., Suite 1550
Oklahoma City, OK 73102
(405) 236-2343 Telephone
(405) 236-2349 Facsimile
dholladay@holladaychilton.com
jwarner@holladaychilton.com
-andJoseph T. Thai, OBA No. 19377
300 Timberdell Rd.
Norman, OK 73019
(405) 204-9579 Telephone
ATTORNEYS FOR PLAINTIFFS
11
CERTIFICATE OF SERVICE
I certify that on January 21, 2015, I electronically transmitted the foregoing
document to the Clerk of Court using the ECF System for filing and transmittal of a
Notice of Electronic Filing to the current parties of record.
s/ Don G. Holladay
12
Case 4:04-cv-00848-TCK-TLW Document 304-1 Filed in USDC ND/OK on 01/21/15 Page 1 of 6

Appellate Case: 14-5003
Document: 01019203061
Date Filed: 02/14/2014
Page: 1
Case Nos. 14-5003, 14-5006

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
MARY BISHOP, et al.,
Plaintiffs-Appellees,
and
SUSAN G. BARTON, et al.,
Plaintiffs-Appellees/Cross-Appellants,
v.
SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State
of Oklahoma,
Defendant-Appellant/Cross-Appellee,
and
THE UNITED STATES OF AMERICA, ex rel. ERIC H. HOLDER, JR., in his
official capacity as Attorney General of the United States of America,
Defendant,
-------------------------------BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF

REPRESENTATIVES, et al.
Intervenors-Defendants.
APPELLANT SALLY HOWE SMITHS UNOPPOSED MOTION

FOR LEAVE TO FILE OVERSIZED BRIEF
Pursuant to Tenth Circuit Rule 28.3, Appellant Sally Howe Smith, in her
official capacity as Court Clerk for Tulsa County, State of Oklahoma, requests
permission to use up to an additional 7,000 words in her opening brief. Plaintiffs,
the only other party participating in this appeal, do not oppose this request.
Exhibit 1

Document: 01019203061
Page: 2
ARGUMENT
Compelling and extraordinary circumstances justify Smiths request to file a
brief exceeding the word count. 10th Cir. R. 28.3 (Motions to exceed the word
count will be denied unless extraordinary and compelling circumstances can be
shown.).
This case presents one of the most important legal questions facing the
federal judiciary todaythe constitutionality of a States decision to define
marriage as the union of a man and a woman and thereby to preserve the manwoman marriage institution. This issue is important not just to Oklahoma and its
citizens, but also to other States within this Circuit that maintain similar marriage
laws and the majority of States throughout the Nation that have adopted the same
fundamental marriage policy as the People of Oklahoma.
Analyzing this legal question requires an understanding of marriages role
and public purpose as a complex social institution. It also necessitates a detailed
consideration of the compelling interests furthered by that institution. The need to
include a thorough discussion of these important matters amply justifies Smiths
request to file an oversized brief.
For these reasons, in Kitchen v. Herbert, this Court granted Utah state
officials recent request to use up to an additional 10,000 words in their opening
brief defending the marriage laws in their case. See Kitchen v. Herbert, No. 13-

Document: 01019203061
Page: 3
4178, Order (10th Cir. Feb. 10, 2014). Similarly, in Perry v. Brown, 671 F.3d 1052
(9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S.
Ct. 786 (2013), a case considering the constitutionality of Californias marriage
laws, the Ninth Circuit allowed both sides to file opening briefs containing a
maximum of 31,000 words (17,000 words over the typical limit). And in Sevcik v.
Sandoval, No. 12-17668, a case challenging Nevadas marriage laws, the Ninth
Circuit allowed both sides to file opening briefs of 26,500 words, more than 12,000
words over the standard 14,000-word limit. The request for 7,000 words in this
case is modest by comparison.
The compelling nature of the legal question presented here, its extraordinary
importance to People of Oklahoma and throughout the country, and the need to
discuss the social role and public purpose of marriage demonstrate that
extraordinary and compelling circumstances warrant Smiths filing an oversized
opening brief.
Smith could not have made this request earlier. 10th Cir. R. 28.3 (A motion
filed within 14 days of the briefs due date must show why earlier filing was not
possible.). On January 28, 2014, this Court issued an order expediting this appeal.
Since then, Smiths attorneys have worked diligently to compose a draft brief, and
only now have they determined that they need an enlarged word count to develop
the arguments in defense of Oklahomas Marriage Amendment.

Document: 01019203061
Page: 4
Notably, the Utah state officials filed their recent request to enlarge the word
count a mere five days before their brief was due. See Kitchen v. Herbert, No. 134178, Defendants-Appellants Unopposed Motion to Exceed Word Count in Their
Opening Brief (10th Cir. Jan. 29, 2014). And that request was granted by this
Court. See Kitchen v. Herbert, No. 13-4178, Order (10th Cir. Feb. 10, 2014). Here,
Smith files this request 10 days before her brief is due; thus this Court should
similarly grant her request.
CONCLUSION
For the foregoing reasons, Smith respectfully requests permission to use up
to an additional 7,000 words in her opening brief.
s/ Byron J. Babione
Byron J. Babione
David Austin R. Nimocks
James A. Campbell
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020 (t); (480) 444-0028 (f)
bbabione@alliancedefendingfreedom.org
Attorneys for Sally Howe Smith

Document: 01019203061
Page: 5
I hereby certify that on February 14, 2014, I electronically filed the
foregoing using the courts CM/ECF system, which will send notification of such
filing to the following:
Don Gardner Holladay
James Edward Warner, III
Joseph Thai
Attorneys for Plaintiffs-Appellees/Cross-Appellants
Date: February 14, 2014
s/ Byron J. Babione
Byron J. Babione

Document: 01019203061
Page: 6
CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify (1) that all the required privacy redactions have been made
as required by Tenth Circuit Rule 25.5, (2) that the submitted hard copies, if any,
are an exact copy of the ECF submission, and (3) that the digital submissions have
been scanned for viruses with the most recent version of a commercial virus
scanning program, Sophos Endpoint Security and Control, Version 10.3, and are
free of viruses according to that program.
s/ Byron J. Babione
Byron J. Babione
Case 4:04-cv-00848-TCK-TLW Document 304-2 Filed in USDC ND/OK on 01/21/15 Page 1 of

112
Appellate Case: 14-5003 Document: 01019207411 Date Filed: 02/24/2014 Page: 1
Case Nos. 14-5003, 14-5006

and
v.
of Oklahoma,
and
Defendant,

REPRESENTATIVES, et al.,
On appeal from the United States District Court for the Northern District of Oklahoma,
Case No. 04-CV-848-TCK-TLW
The Honorable Terence C. Kern
APPELLANTS PRINCIPAL BRIEF

Byron J. Babione
James A. Campbell
(480) 444-0020 (t); (480) 444-0028 (f)
John David Luton

Assistant District Attorney
District Attorneys Office (Tulsa)
500 South Denver Ave., Suite 900
Tulsa, OK 74103
(918) 596-4814 (t); (918) 596-4804 (f)
jluton@tulsacounty.org

Oral Argument Set for April 17, 2014
Exhibit 2

112
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF RELATED APPEALS ........................................................... xvii
INTRODUCTION .....................................................................................................1
JURISDICTIONAL STATEMENT ..........................................................................4
STATEMENT OF THE ISSUE .................................................................................4
STATEMENT OF THE CASE ..................................................................................5
I.
History of Oklahomas Marriage Laws ...........................................................5
II.
Procedural History ...........................................................................................8
III.
The District Courts Decision ..........................................................................9
SUMMARY OF ARGUMENT ...............................................................................14

STANDARD OF REVIEW .....................................................................................20
ARGUMENT ...........................................................................................................20
I.
Baker Forecloses Plaintiffs Claims. .............................................................20
II.
The Fourteenth Amendment Does Not Forbid the Domestic-Relations

Policy Reflected in the Marriage Amendment. .............................................23
A.
The Public Purpose of Marriage in Oklahoma Is to Channel the

Presumptive Procreative Potential of Man-Woman Couples into
Committed Unions for the Good of Children and Society..................23
B.
Windsor Emphasizes the States Authority to Define Marriage

and Thus Supports the Peoples Right to Enact the Marriage
Amendment. ........................................................................................28
1.
Windsors Equal-Protection Analysis Does Not Apply

Here. ..........................................................................................31
2.
The People Enacted the Marriage Amendment for

Legitimate and Compelling Purposes. ......................................33

112
C.
D.
E.
Rational-Basis Review Applies to Plaintiffs Claims. ........................37

1.
Plaintiffs Claims Do Not Implicate a Fundamental

Right. .........................................................................................37
2.
The Marriage Amendment Does Not Impermissibly

Discriminate on the Basis of Sex. .............................................41
3.
The Classification Drawn by the Marriage Amendment Is

Based on a Distinguishing Characteristic Relevant to the
States Interest in Marriage. ......................................................43
The Marriage Amendment Satisfies Rational-Basis Review..............45

1.
The Marriage Amendment Furthers Compelling Interests. ......46
2.
The Marriage Amendment Is Rationally Related to

Furthering Compelling Interests. ..............................................55
3.
The District Court Erred in its Rational-Basis Analysis...........59
The Marriage Amendment Satisfies Heightened Scrutiny. ................63

1.
Legally Redefining Marriage as a Genderless Institution

Would Have Real-World Consequences. .................................64
2.
Predictive Judgments about the Anticipated Effects of

Redefining Marriage Are Entitled to Substantial
Deference. .................................................................................67
3.
A Prior Legal Change to a Fundamental Marital Norm

Altered Perceptions about Marriage and Increased
Marital Instability......................................................................69
4.
Redefining Marriage Presents a Substantial Risk of

Negatively Affecting Children and Society. .............................72
a)
Genderless Marriage Would Convey That

Marriage Is a Mere Option (Not an Expectation)
for Childbearing and Childrearing, and That
Would Likely Lead to Adverse Consequences for
Children and Society. .....................................................72
ii

112
III.
b)
Genderless Marriage Would Undermine the

Importance of Both Fathers and Mothers, and That
Children and Society. .....................................................74
c)
Genderless Marriage Would Entrench an AdultCentered View of Marriage and Likely Lead to
Adverse Consequences for Children and Society. .........75
d)
The District Court Inappropriately Discounted

These Arguments. ...........................................................82
Plaintiffs Cannot Satisfy the Causation or Redressability Requirement

of Standing. ....................................................................................................86
CONCLUSION ........................................................................................................88
ORAL ARGUMENT STATEMENT ......................................................................89
CERTIFICATE OF COMPLIANCE .......................................................................90
CERTIFICATE OF DIGITAL SUBMISSION .......................................................91
CERTIFICATE OF SERVICE ................................................................................92
ADDENDA ..............................................................................................................93
iii

112
TABLE OF AUTHORITIES
Cases
Adams v. Howerton,
486 F. Supp. 1119 (C.D. Cal. 1980) .............................................................. 59
Adoptive Couple v. Baby Girl,
133 S. Ct. 2552 (2013)................................................................................... 49
Advantage Media, LLC v. City of Eden Prairie,
456 F.3d 793 (8th Cir. 2006) ......................................................................... 88
Agostini v. Felton,
521 U.S. 203 (1997)....................................................................................... 22
Andersen v. King County,
138 P.3d 963 (Wash. 2006) ...................................................40, 42, 56, 58, 61
Baehr v. Lewin,
852 P.2d 44 (Haw. 1993) ...........................................................................6, 40
Baker v. Nelson,
409 U.S. 810 (1972).....................................................................10, 14, 21, 39
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ..............................................20, 40, 42, 59, 61
Baker v. State,
744 A.2d 864 (Vt. 1999) ................................................................................ 42
Bishop v. Oklahoma,
333 F. Appx 361 (10th Cir. 2009) .................................................................. 8
Blunt v. Blunt,
176 P.2d 471 (Okla. 1947)............................................................................. 24
Board of Trustees of the University of Alabama v. Garrett,
531 U.S. 356 (2001)....................................................................................... 56
Bowen v. Gilliard,
483 U.S. 587 (1987)....................................................................................... 54
iv

112
Califano v. Boles,
443 U.S. 282 (1979)................................................................................. 43-44
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006) ...................................................2, 40, 46, 58, 69
City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985)...........................................................................16, 44, 55
City of Erie v. Paps A.M.,
529 U.S. 277 (2000)....................................................................................... 67
Conaway v. Deane,
932 A.2d 571 (Md. 2007) ............................................................40, 42, 58, 61
Covenant Media of South Carolina, LLC v. City of North Charleston,
493 F.3d 421 (4th Cir. 2007) ......................................................................... 88
Craig v. Boren,
429 U.S. 190 (1976)....................................................................................... 42
Dandridge v. Williams,
397 U.S. 471 (1970)....................................................................................... 45
FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993).................................................................................45, 46
FCC v. National Citizens Committee for Broadcasting,
436 U.S. 775 (1978)....................................................................................... 67
Frontiero v. Richardson,
411 U.S. 677 (1973)....................................................................................... 42
Get Outdoors II, LLC v. City of San Diego, California,
506 F.3d 886 (9th Cir. 2007) ......................................................................... 88
Goodridge v. Department of Public Health,
798 N.E.2d 941 (2003) ............................................................6, 35, 40, 71, 72
Griswold v. Connecticut,
381 U.S. 479 (1965)....................................................................................... 60

112
Grutter v. Bollinger,
539 U.S. 306 (2003)...........................................................................54, 67, 68
Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, Illinois,
9 F.3d 1290 (7th Cir. 1993) ........................................................................... 88
Heller v. Doe,
509 U.S. 312 (1993)...........................................................................45, 46, 58
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) .............................................. 40, 42, 45, 54, 58, 61
Hicks v. Miranda,
422 U.S. 332 (1975)....................................................................................... 21
Hunt v. Hunt,
100 P. 541 (Okla. 1909)................................................................................. 24
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012).........................................40, 42, 56, 58
Johnson v. Robison,
415 U.S. 361 (1974).................................................... 3, 13, 17, 55, 58, 62, 63
Jones v. Hallahan,
501 S.W.2d 588 (Ky. 1973) ........................................................................... 40
In re Kandu,
315 B.R. 123 (Bankr. W.D. Wash. 2004)...................................................... 40
Kern v. Taney,
11 Pa. D & C. 5th 558 (Pa. Com. Pl. 2010)................................................... 41
Lawrence v. Texas,
539 U.S. 558 (2003)....................................................................................... 22
Lewis v. Harris,
908 A.2d 196 (N.J. 2006) ........................................................................40, 65
Lofton v. Secretary of the Department of Children & Family Services,
358 F.3d 804 (11th Cir. 2004) .................................................................47, 85
vi

112
Loving v. Virginia,
388 U.S. 1 (1967)...............................................................................23, 39, 43
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)....................................................................................... 86
Mandel v. Bradley,
432 U.S. 173 (1977).................................................................................14, 21
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ............................................................................... 42
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tx. Ct. App. 2010) ................................................ 40-41, 58
Massachusetts v. U.S. Department Health & Human Services,
682 F.3d 1 (1st Cir. 2012).............................................................................. 22
Maverick Media Group, Inc. v. Hillsborough County, Florida,
528 F.3d 817 (11th Cir. 2008) ................................................................. 87-88
Maynard v. Hill,
125 U.S. 190 (1888)....................................................................................... 24
Midwest Media Property, LLC v. Symmes Township, Ohio,
503 F.3d 456 (6th Cir. 2007) ......................................................................... 88
Mississippi University for Women v. Hogan,
458 U.S. 718 (1982)................................................................................. 41-42
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) ......................................41, 56, 58, 61, 62
Mudd v. Perry,
235 P. 479 (Okla. 1925)................................................................................... 5
Murphy v. Ramsey,
114 U.S. 15 (1885)......................................................................................... 38
Nichols v. Brown,
945 F. Supp. 2d 1079 (C.D. Cal. 2013) ...................................................86, 87
vii

112
Nguyen v. Immigration and Naturalization Service,

533 U.S. 53 (2001)......................................................................................... 58
Oklahoma Telecasters Association v. Crisp,
699 F.2d 490 (10th Cir. 1983) .................................................................21, 22
In re Opinions of the Justices to the Senate,
802 N.E.2d 565 (Mass. 2004) ...................................................................... 6-7
Parham v. J.R.,
442 U.S. 584 (1979)....................................................................................... 49
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) ...............................................................16, 45
Reed v. Reed,
404 U.S. 71 (1971)......................................................................................... 42
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989).................................................................................14, 22
Romer v. Evans,
517 U.S. 620 (1996).................................................................................22, 34
San Antonio Independent School District v. Rodriguez,
411 U.S. 1 (1973)........................................................................................... 43
Santosky v. Kramer,
455 U.S. 745 (1982)....................................................................................... 52
Save Palisade FruitLands v. Todd,
279 F.3d 1204 (10th Cir. 2002) ..................................................................... 37
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ............................................................. 42
Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974) ....................................................42, 59
Smelt v. County of Orange,
447 F.3d 673 (9th Cir. 2006) ......................................................................... 68
viii

112
Smelt v. County of Orange,

374 F. Supp. 2d 861 (C.D. Cal. 2005) .....................................................40, 41
Smith v. Organization of Foster Families For Equality & Reform,
431 U.S. 816 (1977)....................................................................................... 49
Sosna v. Iowa,
419 U.S. 393 (1975)...................................................................................2, 29
Southwestern Bell Telephone Company v. Oklahoma State Board of
Equalization,
231 P.3d 638 (Okla. 2009)............................................................................. 35
Standhardt v. Superior Court of State of Arizona,
77 P.3d 451 (Ariz. Ct. App. 2003).........................................41, 56, 59, 60, 61
Storrs v. Holcomb,
645 N.Y.S.2d 286 (N.Y. Sup. Ct. 1996) ........................................................ 41
Timmons v. White,
314 F.3d 1229 (10th Cir. 2003) ..................................................................... 20
Troxel v. Granville,
530 U.S. 57 (2000)......................................................................................... 49
Turner Broadcasting System, Inc. v. FCC,
520 U.S. 180 (1997).................................................................................67, 68
Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994)....................................................................................... 67
United States v. Virginia,
518 U.S. 515 (1996)...........................................................................41, 43, 54
United States v. Windsor,
133 S. Ct. 2675 (2013)............................................................................passim
Utah v. Babbitt,
137 F.3d 1193 (10th Cir. 1998) ..................................................................... 86
ix

112
Vacco v. Quill,
521 U.S. 793 (1997)....................................................................................... 56
Vance v. Bradley,
440 U.S. 93 (1979)......................................................................................... 58
Vincent v. Vincent,
257 P.2d 512 (Okla. 1953)............................................................................. 69
Washington v. Glucksberg,
521 U.S. 702 (1997).....................................................................37, 38, 39, 40
WeGo Perforators v. Hilligoss,
397 P.2d 113 (Okla. 1964)............................................................................... 5
White v. United States,
601 F.3d 545 (6th Cir. 2010) ......................................................................... 87
Williams v. North Carolina,
317 U.S. 287 (1942)....................................................................................... 23
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ........................................................ 40
Wooden v. Wooden,
239 P. 231 (Okla. 1925)................................................................................. 24
Zablocki v. Redhail,
434 U.S. 374 (1978).................................................................................23, 39
Constitutional Provisions
Oklahoma Constitution Article I, Section 2............................................................. 69
Oklahoma Constitution Article II, Section 35 .....................................................9, 69
Rules
Federal Rule of Civil Procedure 56 ......................................................................... 20
Statutes and Bills

112
Oklahoma Statute Chapter 31, Section 3234 (1908) ................................................. 5

Oklahoma Statute Chapter 45, Sections 3884 (1908) ................................................ 5
Oklahoma House Bill 1151, 35th Legislature, 1st Regular Session (1975) .............. 6
Oklahoma Statute Title 43, Section 3 (1975) ............................................................ 6
Oklahoma Statute Title 10, Section 7700-204 ......................................................... 27
Oklahoma Statute Title 43, Section 3 .................................................................... 5, 9
Oklahoma Statute Title 43, Section 3.1 ................................................................. 6, 9
Oklahoma Statute Title 43, Section 101 ............................................................27, 69
Oklahoma Statute Title 43, Section 107.1 ............................................................... 27
Oklahoma Statute Title 43, Section 201 .................................................................. 69
United States Code Title 28, Section 1291 ................................................................ 4
United States Code Title 28, Section 1331 ................................................................ 4
Other Authorities
Douglas W. Allen, An Economic Assessment of Same-Sex Marriage Laws,
29 Harv. J.L. & Pub. Poly 949 (2006) .............................................25, 64, 70
Douglas W. Allen and Maggie Gallagher, Does Divorce Law Affect the
Divorce Rate? A Review of Empirical Research, 1995-2006, Institute
for Marriage and Public Policy Research Brief (Jul. 2007), available
at http://www.marriagedebate.com/pdf/imapp.nofault.divrate.pdf ............... 70
Assisted Reproductive Technology, Centers for Disease Control and
Prevention, http://www.cdc.gov/art/ (last visited Feb. 23, 2014) ................. 84
Robert N. Bellah et al., The Good Society (1991) ................................................... 64
Jessica Bennett, Polyamory: The Next Sexual Revolution?, Newsweek, Jul.
28, 2009, available at http://www.newsweek.com/polyamory-nextsexual-revolution-82053 ................................................................................ 82
xi

112
Peter L. Berger and Thomas Luckmann, The Social Construction of Reality:

A Treatise in the Sociology of Knowledge (1966) ......................................... 64
William Blackstone, Commentaries ..................................................................26, 49
Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for
Marriage Law, 120 Ethics 302 (2010) .......................................................... 82
Adrienne Burgess, Fathers and public services, in Daddy Dearest?, Institute
for Public Policy Research 57 (Kate Stanley ed., 2005) ............................... 53
Ray Carter, Marriage question among most popular on state ballot, Journal
Record, Oct. 12, 2004 .................................................................................... 36
Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J.
Marriage & Fam. 848 (2004) ...................................................................77, 78
Kingsley Davis, Introduction: The Meaning and Significance of Marriage in
Contemporary Society, in Contemporary Marriage: Comparative
Perspectives on a Changing Institution 1 (Kingsley Davis ed., 1985) .... 26, 52
Divorce rates by State: 1990, 1995, and 1999-2011, Centers for Disease
Control and Prevention, available at http://www.cdc.gov/nchs/data/
dvs/divorce_rates_90_95_99-11.pdf ............................................................. 79
William J. Doherty et al., Responsible Fathering, 60 J. Marriage & Fam. 277
(1998) ...........................................................................................48, 74, 75, 80
Bruce J. Ellis et al., Does Father Absence Place Daughters at Special Risk
for Early Sexual Activity and Teenage Pregnancy?, 74 Child Dev. 801
(2003) ............................................................................................................. 53
William N. Eskridge, Jr. and Darren R. Spedale, Gay Marriage: For Better
or for Worse? What Weve Learned from the Evidence (2006) .................... 65
Lawrence B. Finer and Mia R. Zolna, Unintended Pregnancy in the United
States: Incidence and Disparities, 2006,
84 Contraception 478 (2011) .............................................................47, 56, 62
Elrini Flouri and Ann Buchanan, The role of father involvement in childrens
later mental health, 26 J. Adolescence 63 (2003) ......................................... 53
xii

112
Gary J. Gates, LGBT Parenting in the United States, The Williams Institute,
UCLA School of Law (Feb. 2013) ................................................................ 85
Robert P. George et al., What is Marriage? (2012)..........................................passim
Norval D. Glenn, The Struggle For Same-Sex Marriage,
41 Socy 25 (2004) ................................................................25, 74, 76, 77, 83
William J. Goode, World Changes in Divorce Patterns (1993) .............................. 70
E.J. Graff, Retying the Knot, The Nation, Jun. 24, 1996 ......................................... 65
David Harper, Focus: Gay-marriage clamor grows louder and louder, Tulsa
World, Mar. 22, 2004 .................................................................................... 36
Institute for American Values, Marriage and the Law: A Statement of
Principles 18 (2006), available at http://www.americanvalues.org/
search/item.php?id=22 ................................................................................... 76
Ron Jenkins, Agreement ends fight on same-sex marriage ban, Associated
Press, Apr. 14, 2004....................................................................................... 36
Claude Levi-Strauss, The View From Afar (1985) .................................................. 24
John Locke, Second Treatise of Civil Government (1690) ...................................... 26
Wendy D. Manning et al., The Relative Stability of Cohabiting and Marital
Unions for Children, 23 Population Research & Poly Rev. 135
(2004) ....................................................................................................... 57, 73
Wendy D. Manning and Kathleen A. Lamb, Adolescent Well Being in
Cohabiting, Married, and Single-Parent Families, 65 J. Marriage &
Fam. 876 (2003)............................................................................................. 50
Loren D. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer
Examination of the American Psychological Associations Brief on
Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735 (2012) ........................... 85
xiii

112
Elizabeth Marquardt et al., My Daddys Name is Donor: A New Study of

Young Adults Conceived Through Sperm Donation, Institute for
American Values, available at http://familyscholars.org/my-daddysname-is-donor-2/............................................................................................ 52
Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent:
What Hurts, What Helps (1994) .............................................................. 50-51
Kristin Anderson Moore et al., Marriage from a Childs Perspective: How
Does Family Structure Affect Children, and What Can We do About
It?, Child Trends Research Brief (June 2002) ...................................48, 50, 81
National Marriage and Divorce Rate Trends, Centers for Disease Control
and Prevention, available at http://www.cdc.gov/nchs/nvss/
marriage_divorce_tables.htm ........................................................................ 79
Barack Obama, Obamas Speech on Fatherhood (Jun. 15, 2008), transcript
available
at
http://www.realclearpolitics.com/articles/2008/06/
obamas_speech_on_fatherhood.html ............................................................ 53
Opinion of the Attorney General of Oklahoma No. 04-010 (2004) .......................... 5
Allen M. Parkman, Good Intentions Gone Awry: No-fault Divorce and the
American Family (2000) .......................................................................... 70-71
David Popenoe, Life Without Father (1996) .....................................................51, 53
Marie Price, State GOP lawmakers are urging constitutional approaches to
strengthen laws regarding marriage, Tulsa World, Feb. 6, 2004 ................. 36
Kyle D. Pruett, Fatherneed (2000) ....................................................................52, 53
G. Robina Quale, A History of Marriage Systems (1988) ....................................... 25
A.R. Radcliffe-Browne, Structure and Function in Primitive Society (1952) ........ 64
Joseph Raz, Ethics in the Public Domain (1994) .................................................... 65
Mark Regnerus, How Different Are the Adult Children of Parents Who Have
Same-Sex Relationships? Findings from the New Family Structures
Study, 41 Soc. Sci. Research 752 (2012) ....................................................... 84
xiv

112
Charles J. Rothwell et al., Fertility, Family Planning, and Reproductive

Health of U.S. Women: Data from the 2002 National Survey of Family
Growth, Centers for Disease Control and Prevention (Dec. 2005),
available at http://www.cdc.gov/nchs/data/series/sr_23/sr23_025.pdf ........ 61
Bertrand Russell, Marriage & Morals (Liveright Paperbound Edition,
1970) ........................................................................................................28, 78
Benjamin Scafidi, The Taxpayer Costs of Divorce and Unwed Childbearing:
First-Ever Estimates for the Nation and All Fifty States (2008) ................... 73
Carl E. Schneider, The Channelling Function in Family Law, 20 Hofstra L.
Rev. 495 (1992) ............................................................................................. 64
Michelangelo Signorile, Bridal Wave, OUT Magazine, Dec./Jan. 1994................. 65
Judith Stacey, In the Name of the Family: Rethinking Family Values in the
Postmodern Age (1996) ................................................................................. 82
Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev.
4 (1996) .......................................................................................................... 66
Julien O. Teitler et al, Effects of Welfare Participation on Marriage, 71 J.
Marriage & Fam. 878 (2009) ......................................................................... 73
United Nations Convention on the Rights of the Child Article 7, Section 1........... 49
Judith S. Wallerstein et al., The Unexpected Legacy of Divorce: The 25 Year
Landmark Study (2000) ................................................................................. 70
W. Bradford Wilcox and Jeffrey Dew, Is Love a Flimsy Foundation?
Soulmate versus institutional models of marriage, 39 Soc. Sci.
Research 687 (2010) ...................................................................................... 80
W. Bradford Wilcox, Reconcilable Differences: What Social Sciences Show
About Complementarity of Sexes & Parenting, Touchstone, Nov. 2005 ...... 54
W. Bradford Wilcox et al., eds., Why Marriage Matters (3d ed. 2011) .................. 50
W. Bradford Wilcox et al., eds., Why Marriage Matters (2d ed. 2005) ......25, 51, 80
xv

112
Elizabeth Wildsmith et al., Childbearing Outside of Marriage: Estimates

and Trends in the United States, Child Trends Research
Brief (Nov. 2011), available at http://www.childtrends.org/wpcontent/uploads/2013/02/Child_Trends-2011_11_01_RB_
NonmaritalCB.pdf .......................................................................47, 48, 57, 62
Ellen Willis, Can Marriage Be Saved? A Forum, The Nation, Jul. 5, 2004 ........... 82
James Q. Wilson, The Marriage Problem (2002) .......................................26, 51, 52
Witherspoon Institute, Marriage and the Public Good: Ten Principles
(2008) ........................................................................ 51, 52, 72, 74, 75, 77, 80
xvi

112
STATEMENT OF RELATED APPEALS

Bishop v. Oklahoma, No. 06-5188, 333 F. Appx 361 (10th Cir. June 5,
2009) This is a prior appeal of a collateral order in the pending case challenging
the constitutionality of Oklahomas constitutional amendment defining marriage as
the union of one man and one woman. Plaintiffs originally named two state
defendants, the Oklahoma Governor and Attorney General, as parties to the suit.
Counsel for the state defendants filed a motion to dismiss on Eleventh Amendment
immunity grounds. The United States District Court for the Northern District of
Oklahoma denied that motion, and the state defendants appealed that decision to
this Court under the collateral-order exception to 28 U.S.C. 1291. This Court
held that because the state officials generalized duty to enforce state law . . .
[was] insufficient to subject them to a suit challenging a constitutional amendment
they have no specific duty to enforce, Plaintiffs lack[ed] Article III standing to
bring their claims against those officers. Bishop, 333 F. Appx at 365. Following
remand, Plaintiffs filed an amended complaint that named Appellant Sally Howe
Smith, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma,
as a defendant in place of the two previously named state officials.
Kitchen v. Herbert, No. 13-4178 (10th Cir.) The plaintiffs in Kitchen are
challenging the constitutionality of Utah laws that define marriage as the union of
one man and one woman. The plaintiffs assert that those laws violate the Due
xvii

112
Process and Equal Protection Clauses of the Fourteenth Amendment to the United
States Constitution. The United States District Court for the District of Utah agreed
with the plaintiffs and granted their motion for summary judgment. The state
defendants appealed to this Court, and the case is pending here. The issues raised
in that appeal are similar to the issues raised in this appeal.
Sevcik v. Sandoval, No. 12-17668 (9th Cir.) The plaintiffs in Sevcik are
challenging the constitutionality of Nevada laws that define marriage as the union
of one man and one woman. The plaintiffs assert that those laws violate the Due
Process and Equal Protection Clauses of the Fourteenth Amendment to the United
States Constitution. The United States District Court for the District of Nevada
rejected the plaintiffs claims and upheld Nevadas laws as constitutional. The
plaintiffs appealed to the Ninth Circuit, and the case is pending there. The issues
raised in that appeal are similar to the issues raised in this appeal.
xviii

112
INTRODUCTION
The People throughout the various States are engaged in an earnest public
discussion about the meaning, purpose, and future of marriage. As a bedrock social
institution, marriage has always existed to channel the presumptive procreative
potential of man-woman relationships into committed unions for the benefit of
children and society. Despite this enduring purpose, some now seek to redefine
marriage from a gendered to a genderless institution. Meanwhile, many others
sincerely believe that redefining marriage as a genderless institution would obscure
its animating purpose and thereby undermine its social utility.
So far, the States have reached differing decisions on this important
question. The People in 11 States, acting through a vote of the citizens or the state
legislature, have adopted a genderless-marriage regime, while six other States have
redefined marriage as a result of state-court rulings. See Brief of Appellants at
Addendum 2, Kitchen v. Herbert (10th Cir. Feb. 3, 2014) (No. 13-4178). No
provision of the United States Constitution prohibits those States from adopting
that marriage policy. See United States v. Windsor, 133 S. Ct. 2675, 2692 (2013).
Elsewhere, the People in the remaining 33 States, Oklahoma among them, have
decided, mostly through state constitutional amendments, to preserve marriage as a
man-woman union. See Brief of Appellants at Addendum 2, Kitchen v. Herbert

112
(10th Cir. Feb. 3, 2014) (No. 13-4178). Nothing in the Constitution forbids them
from affirming that marriage policy.
Yet Plaintiffs, discontented with the Peoples sovereign decision, have filed
this lawsuit. They argue that the public discussion about the meaning, purpose, and
future of marriage was and is meaningless. They claim that the issue was taken out
of the Peoples hands in the 1860swhen the Fourteenth Amendment was
ratifiedthat the Constitution itself defines marriage as a genderless institution,
and that the People have no say in deciding the weighty social, philosophical,
political, and legal issues implicated by this public debate. But Plaintiffs are
mistaken. The Constitution has not removed this question from the People. It has
not settled this critical social-policy issue entrusted to the States.
The District Court thus erred in holding that the Fourteenth Amendment to
the United States Constitution requires Oklahomans to redefine marriage for their
community. Federal constitutional review of a States definition of marriage must
be particularly deferential, Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867
(8th Cir. 2006), because States, subject only to clear constitutional constraints,
have an absolute right to prescribe the conditions upon which the marriage
relation between [their] own citizens shall be created. Sosna v. Iowa, 419 U.S.
393, 404 (1975); see also Windsor, 133 S. Ct. 2691.

112
Plaintiffs constitutional arguments, moreover, are foreclosed by the

enduring public purpose of marriage. History has left no doubt that marriage owes
its very existence to societys vital interest in channeling the presumptively
procreative potential of man-women relationships into committed unions for the
benefit of children and society. Marriage is thus inextricably linked to the
undeniable biological fact that man-woman couples, and only such couples, are
capable of naturally creating new life together and, therefore, are capable of
furthering, or threatening, societys interests in responsibly creating and rearing the
next generation. That fact alone forecloses Plaintiffs claims, for Supreme Court
precedents make clear that a classification will be upheld when the inclusion of
one group promotes a legitimate governmental purpose, and the addition of other
groups would not[.] Johnson v. Robison, 415 U.S. 361, 383 (1974).
Furthermore, Oklahomans realize that marriage has been, and continues to
be, about the business of serving child-centered purposes, like connecting children
to both their mother and father, and avoiding the negative outcomes often
associated with children raised outside a stable family led by both their mother and
father. Redefining marriage would likely harm marriages ability to serve those
interestsharm that flows from severing marriages inherent connection to
procreation, communicating to the community that marriages primary end is to
affirm adult desires rather than serve childrens needs, and suppressing the

112
importance of both mothers and fathers to childrens development. Faced with

these concerns about adverse future consequences, the People of Oklahoma are
free to affirm the man-woman marriage institution, believing that, in the long run,
it will best serve the wellbeing of the States childrentheir most vulnerable
citizensand society as a whole. Oklahomans thus have the right to decide the
future of marriage for their community and thereby shap[e] the destiny of their
own times. Windsor, 133 S. Ct. at 2692.
JURISDICTIONAL STATEMENT
Plaintiffs raise constitutional claims under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States Constitution.
28 U.S.C. 1331 provides jurisdiction to decide these constitutional claims.
28 U.S.C. 1291 affords this Court appellate jurisdiction to review the
District Courts final judgment and order, which granted Plaintiffs summaryjudgment motion in part and dismissed Plaintiffs remaining claims. The District
Court entered its order and final judgment on January 14, 2014. Smith filed her
notice of appeal on January 16, 2014.
STATEMENT OF THE ISSUE
Whether the Fourteenth Amendment forbids Oklahoma from defining
marriage as the union of one man and one woman.

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STATEMENT OF THE CASE

I.
History of Oklahomas Marriage Laws

Marriage in Oklahoma has always been the union of one man and one
woman. See Op. Atty Gen. Okla. No. 04-010 (2004) (stating that marriage is
limited to those persons who are of the opposite sex and that the definition of
marriage . . . has remained constant in Oklahoma); Okla. Stat. tit. 43, 3(A)
(noting that an unmarried person may marry a person of the opposite sex).
From the States inception in 1907, Oklahomas marriage statutes have reflected
the gendered understanding of marriage. See, e.g., Okla. Stat. ch. 31, 3234 (1908)
(Husband and wife contract toward each other obligations of mutual respect,
fidelity and support.); Okla. Stat. ch. 45, 3884 (1908) (prohibiting marriage
between a stepfather [and] a stepdaughter, stepmother [and] stepson, . . . uncles
and nieces, aunts and nephews, and brothers and sisters).
Indeed, in the 1920s, the Oklahoma Supreme Court affirmed that
[m]arriage as at common law creates the status of husband and wife under the
law of this state. . . . It is a contract between . . . man and woman. Mudd v. Perry,
235 P. 479, syllabus1 (Okla. 1925), superseded on other grounds as recognized in
Copeland v. Stone, 842 P.2d 754, 757-59 (Okla. 1992). Many decades later, in
1975, the Legislature amended the statutory section that prescribes the conditions
1
It is . . . well settled that . . . a syllabus embodies the law of the case in

[Oklahoma]. WeGo Perforators v. Hilligoss, 397 P.2d 113, 119 (Okla. 1964).
5

112
of marriage. See H.B. 1151, 35th Leg., 1st Reg. Sess. (Okla. 1975) (Any
unmarried person of the age of eighteen (18) or upwards . . . is capable of
contracting and consenting to marriage with a person of the opposite sex). In that
bill, the Legislature expressly recognized what had always been understood in
Oklahomathat marriage is a union entered into with a person of the opposite
sex[.] Okla. Stat. tit. 43, 3 (1975).
In 1993, the Hawaii Supreme Court issued a decision suggesting that its
state laws defining marriage as a man-woman union might violate its state
constitution, thereby creating the prospect that Hawaii might redefine marriage.
See Baehr v. Lewin, 852 P.2d 44, 68 (Haw. 1993). Faced with this development, in
1996, Oklahoma enacted a statute affirming that it would not recognize
marriage[s] between persons of the same gender performed in another state.
Okla. Stat. tit. 43, 3.1. Oklahoma took this step to protect its own definition of
marriageensuring that marriage would not be indirectly redefined within its
borders (without the consent of its People) through the recognition of unions
solemnized in other States.
In 2003 and 2004, two decisions from the Massachusetts Supreme Judicial
Court construed its state constitution to require that Massachusetts redefine
marriage. See Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 969 (Mass.
2003); In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 572 (Mass.

112
2004). Prompted by the concern that state-court judges in Oklahoma might

similarly interpret their state constitution to require a genderless-marriage regime,
the Oklahoma Legislature proposed a referendum to place the States definition of
marriage in its Constitution and beyond the reach of those judges. Aplt.App.25662.
In April 2004, the referendum passed the Legislature, Aplt.App.264-67, and
it was presented to the People during the November 2004 election. Aplt.App.262.
The ballot title told voters the effect of the provision at issue in this appeal: It
defines marriage to be between one man and one woman. Aplt.App.258, 262. On
November 2, 2004, to ensure that state-court judges could not remove the Peoples
sovereign authority to define marriage for their community, the voters enacted the
Marriage Amendment, which is now found in Article II, Section 35 of the
Oklahoma Constitution. More than one million Oklahomans, 1,075,216 to be
exact, voted in favor of the Amendment. Aplt.App. 269-70.
The People thus exercised their voice in shaping the destiny of their own
times on the profoundly important question of the meaning and public purpose of
marriage. Windsor, 133 S. Ct. at 2692. The Marriage Amendment, in short, reflects
Oklahomans considered perspective on the . . . the institution of marriage[.] Id.
at 2692-93.

112
II.
Procedural History
After the election, Plaintiffs (two same-sex couples residing in Oklahoma)
filed this suit raising various constitutional challenges to the Marriage Amendment
and the federal Defense of Marriage Act (DOMA). See Compl. at 4-6 (ECF No.
1). Plaintiffs named two state defendants, the Oklahoma Governor and Attorney
General, and two federal defendants, the President and Attorney General of the
United States. See id at 3. After the District Court refused to dismiss the state
officials on Eleventh Amendment immunity grounds, see Am. Op. and Order at
21-22 (ECF No. 93), this Court concluded that those officials had no specific duty
to enforce the challenged Marriage Amendment, and thus held that Plaintiffs
lack[ed] Article III standing to sue them. Bishop v. Oklahoma, 333 F. Appx
361, 365 (10th Cir. 2009) (unpublished).
Following remand, Plaintiffs filed an amended complaint. Aplt.App.033. In
addition to listing the United States Attorney General as a defendant, that
complaint sued Sally Howe Smith, Court Clerk for Tulsa County, in place of the
dismissed state officials. Aplt.App.033-34. The Bipartisan Legal Advisory Group
of the U.S. House of Representatives subsequently intervened to defend part of
federal DOMA.
Plaintiffs allege that both the Marriage Amendment and federal DOMA
violate the due-process and equal-protection guarantees of the United States

112
Constitution. Aplt.App.040-41. Plaintiffs challenge Part A of the Marriage

Amendment, which defines marriage in Oklahoma as the union of one man and
one woman, Okla. Const. art. II, 35(A) (see Aplt.App. 035-041 11, 25, 2728), and Part B of the Amendment, which provides that a same-sex marriage
performed in another state shall not be recognized in Oklahoma, Okla. Const.
art. II, 35(B) (see Aplt.App.044). But as the District Court acknowledged, see
Aplt.App.626 n.2-3 (Op. at 3),2 Plaintiffs did not challenge the marriage statutes.
See Okla. Stat. tit. 43, 3(A) (indicating that marriage is a union with a person of
the opposite sex); Okla. Stat. tit. 43, 3.1 (declining to recognize out-of-state
same-sex marriages).
All parties filed dispositive motions, see Aplt.App.632-33 (Op. at 9-10),
which included the two motions at issue in this appeal: (1) Plaintiffs Motion for
Summary Judgment (Aplt.App.053); and (2) Smiths Cross-Motion for Summary
Judgment (Aplt.App.187).
III.
The District Courts Decision

The District Court issued an order resolving all dispositive motions on
January 14, 2014. Aplt.App.690-91 (Op. at 67-68). The court began by dismissing
all claims against federal DOMA on standing and mootness grounds, and those
Citations to the District Courts decision include a reference to Appellants

Appendix and a corresponding reference to the specific page number of the
opinion.
9

112
claims are not part of this appeal. See Aplt.App.633 (Op. at 10). The District Court
next determined that Plaintiffs Barton and Phillips, who together received a
marriage certificate in the State of California, lacked standing to bring their
challenge to Part B of the Marriage Amendment against Smith. Aplt.App.649-51
(Op. at 26-28). That conclusion is the subject of Plaintiffs cross-appeal. See Pls.
Notice of Appeal, ECF No. 281.
The District Court then addressed the claims of Plaintiffs Bishop and
Baldwin (who together seek a marriage license in Oklahoma) against Part A of the
Marriage Amendment. Aplt.App.651-91 (Op. at 28-68). After satisfying itself that
Plaintiffs had standing for their challenge to Part A, see Aplt.App.651-53 (Op. at
28-30), the District Court held that Part A violates the Equal Protection Clause of
the Fourteenth Amendment[.] Aplt.App.690 (Op. at 67). Those conclusions are
challenged in this appeal.
The District Court opined that the Supreme Courts summary dismissal in
Baker v. Nelson, 409 U.S. 810 (1972), does not foreclose Plaintiffs challenge to
the Marriage Amendment.3 See Aplt.App.653-57 (Op. at 30-34). Baker, the District
Court rightly acknowledged, presented the precise legal issues presented in this
casenamely, whether a state law limiting marriage to opposite-sex couples
Unless otherwise indicated, subsequent references to the Oklahoma Marriage

Amendment, the Marriage Amendment, or the Amendment refer to Part A,
which is the subject of this appeal.
10

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violates due process or equal protection rights guaranteed by the U.S.

Constitution. Aplt.App.654 (Op. at 31). But the District Court reasoned that
Bakers binding force has been displaced by subsequent doctrinal developments.
Aplt.App.655-57 (Op. at 32-34).
The District Court also considered the impact of the Supreme Courts recent
decision in Windsor, which invalidated Section 3 of federal DOMA as an improper
federal intrusion into the marriage policies of the States. See Aplt.App.658-61 (Op.
at 35-38). The court reasoned that Windsor is not a perfect fit here because a
state law defining marriage, unlike Section 3 of federal DOMA, is not an
unusual deviation from the state/federal balance and therefore it must be
approached . . . with more caution[] than the Supreme Court approached DOMA.
Aplt.App.659-60 (Op. at 36-37). And Windsors lengthy discussion of states
authority to define and regulate marriage, the District Court also acknowledged,
supports Oklahomans decision to enact the Marriage Amendment. Aplt.App.660
(Op. at 37).
The District Court did not reach the question whether the Marriage
Amendment violates Plaintiffs asserted fundamental right to marry a person of
their choice because [s]uch a holding . . . would possibly affect other Oklahoma
laws burdening [that asserted] right[.] Aplt.App.671 n.33 (Op. at 48 n.33)
(quotation marks omitted). Yet before moving beyond the fundamental-right issue,
11

112
the court observed that language in Windsor indicates that same-sex marriage may
be a new right, rather than one subsumed within the Courts prior right to marry
cases. Id.
Under its equal-protection analysis, the District Court define[d] the relevant
class as same-sex couples desiring an Oklahoma marriage license, Aplt.App.665
(Op. at 42), because [t]he classification made by [the Marriage Amendment] is
aimed . . . at same-sex couples who want to marry, rather than all homosexuals.
Aplt.App.665 n.29 (Op. at 42 n.29). The Marriage Amendment does not
impermissibly discriminate on the basis of sex, the District Court concluded,
because it does not draw any distinctions between same-sex male couples and
same-sex female couples, does not place any disproportionate burdens on men and
women, and does not draw upon stereotypes applicable only to male or female
couples. Aplt.App.672 (Op. at 49). Instead, according to the District Court, the
distinction at issue is best described as sexual-orientation discrimination,
Aplt.App.673 (Op. at 50), and classifications based on . . . sexual orientation are
not subject to any form of heightened review in [this] Circuit. Aplt.App.673-74
(Op. at 50-51).
12

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The District Court then evaluated the relevant governmental interests under
the rational-basis standard. See Aplt.App.674-89 (Op. at 51-66).4 The court
accept[ed] that Oklahoma has a legitimate interest . . . in steering naturally
procreative relationships into marriage, Aplt.App.679 (Op. at 56), and
assume[d] . . . that [] the ideal environment for children [is] opposite-sex,
married, biological parents, and [] that promoting this ideal is a legitimate state
interest. Aplt.App.684 (Op. at 61). The court also acknowledged that rationalbasis review is satisfied when the inclusion of one group promotes a legitimate
governmental purpose, and the addition of other groups would not[.]
Aplt.App.683 (Op. at 60) (quoting Johnson, 415 U.S. at 383) (emphasis added).
Yet the court invalidated the Marriage Amendment because it believed that
excluding same-sex couples from marriage would not further the States
interests. Aplt.App.681 (Op. at 58) (emphasis added); accord Aplt.App.685 (Op. at
62) (focusing on exclusion).
The District Court then summarily discarded Smiths arguments about the
projected adverse consequences of redefining marriage, Aplt.App.687-88 (Op. at
64-65), concluding that these concerns seek to uphold a view of the marriage
Claiming that Oklahoma legislators promoted [the Marriage Amendment] as

upholding one specific moral view of marriage, Aplt.App.676 (Op. at 53), the
District Court denounced this supposed interest as an [im]permissible
justification, Aplt.App.677 (Op. at 54), even though, as the court admitted, that
interest was not advanced in this litigation. Aplt.App.676 (Op. at 53).
13

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institution that is impermissibly tied to moral disapproval of same-sex couples.

Aplt.App.688 (Op. at 65). Having rejected all the state interests that it considered,
the District Court thus held that the Marriage Amendment violates the Equal
Protection Clause[.] Aplt.App.690 (Op. at 67).
The District Court entered its final judgment on January 14, 2014.
Aplt.App.692-93. Smith filed her appeal on January 16, 2014. Aplt.App.694-95.
SUMMARY OF ARGUMENT
The Fourteenth Amendment does not forbid the People of Oklahoma from
retaining marriage as a man-woman union. Therefore, this Court should reverse the
District Courts decision.
1.
The precise claims that Plaintiffs raise here have been definitively
decided by the Supreme Courts summary dismissal in Baker v. Nelson. The

Supreme Courts ruling in Baker is a decision on the merits, which establishes that
neither the Due Process Clause nor the Equal Protection Clause bars States from
defining marriage as a man-woman union. That decision is binding on all lower
courts. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). This Court
should follow Baker because the Supreme Court has not overruled it, see
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989), or
indicated that it was wrongly decided.
14

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2.
Even without Bakers controlling force, the Fourteenth Amendment
does not ban Oklahomans from defining marriage as the union of a man and a
woman. The Supreme Courts recent decision in Windsor affirms Oklahomas right
to determine its own marriage policy. Windsor discussed four principles that are
relevant here: (1) that States have the right to define marriage for themselves; (2)
that States have the right to redefine marriage as a genderless institution; (3) that
States may differ in their marriage laws concerning which couples are permitted to
marry; and (4) that federalism affords deference to state marriage policies. When
read together, these principles confirm that the People of Oklahoma acted
constitutionally in approving the Marriage Amendment. Any other conclusion
would contravene Windsor by federalizing a uniform definition of marriage.
The People enacted the Marriage Amendment to further compelling interests
of the highest order. The immediate purpose of the Amendment, as reflected in its
plain language and determined by its objective effect, is to ensure that the state
judiciary cannot change the definition of marriage that has always prevailed in
Oklahoma. By preserving the status quo, the Amendment affirms the man-woman
marriage institution and its longstanding public purpose of channeling the
presumptive procreative potential of man-woman relationships into committed
unions for the benefit of children and society. These are legitimate and compelling
15

112
purposes, and the District Court erred in suggesting that the Amendment was
driven by impermissible motivations.
In attempting to challenge this sovereign act of the People, Plaintiffs face a
high hurdle, for their claims are subject to rational-basis reviewthe most
deferential form of constitutional scrutiny. There are four reasons why the rationalbasis standard applies here. First, Plaintiffs claims do not implicate a fundamental
right. Second, the Marriage Amendment does not impermissibly discriminate on
the basis of sex. Third, the distinction between man-woman couples and all other
relationships is based on distinguishing characteristics relevant to the States
interest in steering potentially procreative sexual relationships into committed
unions. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441-42
(1985). Fourth, this Court has held that sexual orientation is not a suspect or quasisuspect classification. Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th
Cir. 2008).
Under the rational-basis standard, the Marriage Amendment easily satisfies
constitutional review. By seeking to channel potentially procreative relationships
into stable unions, marriage furthers at least three compelling interests: (1)
providing stability to the types of relationships that result in unplanned pregnancies
and thereby avoiding or diminishing the negative outcomes often associated with
unintended children; (2) encouraging the rearing of children by both their mother
16

112
and their father; and (3) encouraging men to commit to the mothers of their
children and jointly raise the children they beget.
The Marriage Amendment directly furthers these compelling interests.
Sexual relationships between men and womenbecause they alone produce
children naturally, produce children unintentionally, and provide children with
their own mother and fatherimplicate these interests directly. Same-sex
relationships, in contrast, simply do not advance or threaten these interests like
sexual relationships between men and women do. Thus, because the inclusion of
one group promotes a legitimate governmental purpose, and the addition of other
groups would not, Johnson, 415 U.S. at 383, the Constitution does not forbid the
People from retaining marriage as the union of one man and one woman.
The District Court misapplied rational-basis analysis and transformed it into
a type of heightened scrutiny under which the government must demonstrate that
redefining marriage would likely harm, erode, or somehow water-down . . . the
marriage institution. Aplt.App.681 (Op. at 58). Even under this heightened form
of scrutiny, however, the Marriage Amendment should be upheld, because
redefining marriage as a genderless institution, and transforming its understanding
in the public consciousness, presents a substantial risk that marriage, over time,
would less effectively achieve the child-focused interests it has always served.
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This concern derives from marriages role as a ubiquitous and vitally

important social institution. Complex social institutions like marriage comprise a
set of norms, rules, patterns, and expectations that powerfully affect peoples
choices, actions, and perspectives. Legally replacing man-woman marriage with
genderless marriage would, as supporters of same-sex marriage admit, have realworld consequences over time. No one can know for sure what those effects would
be, but the State is entitled to make logical projections, and those predictive
judgments are entitled to substantial deference from the judiciary.
No-fault divorce laws provide an analogue for projecting the likely effects of
redefining marriage. No-fault divorce fundamentally altered the permanency norm
of marriagethat is, the legal and social expectation that marriage will last for life.
Those laws communicated that society no longer valued the permanency of
marriage as it once had. Looking back now decades after those laws were enacted,
many scholars have concluded that no-fault divorce laws, notwithstanding
assurances that they would bring about only favorable results, helped to increase
rates of divorce well above their historical trends and create a culture where
marriages are demonstrably less stable.
Like no-fault divorce laws, legally redefining marriage would fundamentally
change a marital norm that has existed in diverse societies for centuriesthe norm
of sexual complementarity (marriages man-woman definition). Redefining
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marriage would erase that norm from the law. That, in turn, would communicate
that marriage has no intrinsic connection to procreation, that marriages primary
purpose is to affirm adult relationships rather than provide for childrens needs,
and that the State is indifferent to whether children are raised by both their mother
and father. As the law and the State convey these messages, it is likely that, over
time, fewer man-woman couples having or raising children will marry, that
marriages will become less stable, and that fewer children will be raised in stable
homes headed by their married mother and father. Faced with these adverse
projections, the State has the right to conclude that reaffirming the man-woman
marriage institution will best serve children and society. The Constitution poses no
barrier to Oklahomas choosing that marriage policy.
3.
Finally, Plaintiffs lack standing to bring their claims and thus even to
raise the important constitutional question presented in this case. In the District
Court, Plaintiffs challenged the Marriage Amendment, but decided not to contest
Oklahomas marriage statutes. Aplt.App.626 n.2-3 (Op. at 3 n.2-3). Consequently,
the District Courts injunction prohibits enforcement of the Amendment against
same-sex couples, but does not forbid enforcement of the marriage statutes.
Aplt.App.690 (Op. at 67). Those statutes thus remain an independent cause of
Plaintiffs asserted injury, and as a result, Plaintiffs cannot satisfy the causation or
redressability requirements of standing.
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STANDARD OF REVIEW
This Court review[s] a grant of summary judgment de novo and appl[ies]
the same legal standard used by the district court. Timmons v. White, 314 F.3d
1229, 1232 (10th Cir. 2003). Under that standard, summary judgment is
appropriate if the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a).
ARGUMENT
I.
Baker Forecloses Plaintiffs Claims.

In Baker v. Nelson, as the District Court recognized below, the Supreme
Court dismissed the precise legal [claims] presented in this case. Aplt.App.654
(Op. at 31). The petitioners in Baker appealed the Minnesota Supreme Courts
decision holding that its state marriage laws, which defined marriage as a manwoman union, did not violate the Due Process or Equal Protection Clause. Baker v.
Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971). In their jurisdictional statement
filed with the United States Supreme Court, the Baker petitioners contended that
Minnesotas marriage laws deprive[d] [them] of their liberty to marry and of their
property without due process of law under the Fourteenth Amendment, and that
those laws violate[d] their rights under the equal protection clause of the
Fourteenth Amendment. Jurisdictional Statement at 3, Baker v. Nelson, 409 U.S.
20

112
810 (1972) (No. 71-1027) (Aplt.App.276). The Supreme Court dismissed the
appeal for want of a substantial federal question. Baker, 409 U.S. at 810.
The Baker decision establishes that neither the Due Process Clause nor the
Equal Protection Clause bars States from maintaining marriage as a man-woman
union, because a Supreme Court summary dismissal is a ruling on the merits, and
lower courts are not free to disregard [it]. Hicks v. Miranda, 422 U.S. 332, 34345 (1975). Summary dismissals thus prevent lower courts from coming to
opposite conclusions on the precise issues presented and necessarily decided by
the dismissal. Mandel, 432 U.S. at 176 (per curiam).
While acknowledging Bakers binding force, the District Court believed that
Baker has been displaced by subsequent doctrinal developments. Aplt.App.65557 (Op. at 32-34). But whatever might be the proper interpretation of the doctrinal
developments dicta, which the Supreme Court stated (though did not apply) only
once, see Hicks, 422 U.S. at 344, and which this Court recited (though did not
apply) only once, see Oklahoma Telecasters Association v. Crisp, 699 F.2d 490,
495 (10th Cir. 1983), revd sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U.S.
691 (1984)), it cannot mean that a lower court has the freedom to depart from
directly-on-point precedent. As the Supreme Court has made clear, [i]f a
precedent of th[e] Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the [lower court] should follow the
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112
case which directly controls, leaving to [the Supreme] Court the prerogative of
overruling its own decisions. Rodriguez de Quijas, 490 U.S. at 484; accord
Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming this rule).
In any event, Supreme Court case law since 1972 does not establish that
Bakers summary disposition has ceased to bind[] . . . the lower federal courts.
Crisp, 699 F.2d at 495. None of the four purported doctrinal developments cited
by the District Court suggests that the Supreme Court has overruled Bakers merits
ruling on the identical due-process and equal-protection claims presented here. See
Aplt.App.656 (Op. at 33). First, as the District Court elsewhere determined, see
Aplt.App.672 (Op. at 49), and as discussed below, see infra at 41-43, the Marriage
Amendment does not impermissibly discriminate on the basis of sex, so the
constitutional standard of scrutiny for a sex-discrimination claim is irrelevant.
Second, the law challenged in Romer v. Evans, 517 U.S. 620 (1996), which
effectuated a [s]weeping and comprehensive . . . change in the law, id. at 627, is
nothing like the Marriage Amendment, which merely reaffirmed long-existing
state law on the specific issue of marriage. Third, Lawrence v. Texas, 539 U.S. 558
(2003), expressly stated that it did not decide whether the government must give
formal recognition to any relationship that homosexual persons seek to enter. Id.
at 578; see also Massachusetts v. U.S. Dept Health & Human Servs., 682 F.3d 1, 8
(1st Cir. 2012) (concluding that, notwithstanding Romer and Lawrence, Baker
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112
forecloses arguments that presume or rest on a constitutional right to same-sex

marriage). Fourth, as explained below, Windsor supports (rather than undermines)
the right of States to establish their own marriage policy. See infra at 28-31.
II.

Policy Reflected in the Marriage Amendment.
A.
The Public Purpose of Marriage in Oklahoma Is to Channel the

Presumptive Procreative Potential of Man-Woman Couples into
Committed Unions for the Good of Children and Society.
Evaluating the Marriage Amendments constitutionality begins with an

assessment of the governments interest in (or purpose for) marriage. The
governments purpose for recognizing and regulating marriage is distinct from the
many private reasons that people marryreasons that often include love,
emotional support, or companionship. Although these are valid private motivations
for marrying, the State does not concern itself with such personal and
individualized considerations.
Rather, from the States perspective, marriage is a vital social institution that
serves indispensible public purposes. As the Supreme Court has stated, marriage is
an institution more basic in our civilization than any other, Williams v. North
Carolina, 317 U.S. 287, 303 (1942), fundamental to the very existence and
survival of the [human] race. Zablocki v. Redhail, 434 U.S. 374, 384 (1978); see
also Loving v. Virginia, 388 U.S. 1, 12 (1967). It is an institution, in the
maintenance of which . . . the public is deeply interested, for it is the foundation of
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112
the family and of society, without which there would be neither civilization nor
progress. Maynard v. Hill, 125 U.S. 190, 211 (1888). The Oklahoma Supreme
Court has similarly acknowledged that the relationship brought about by marriage
is of [great] public concern, Blunt v. Blunt, 176 P.2d 471, 472 (Okla. 1947), and
that the rights of the [spouses] are not isolated from the general interest of society
in preserving the marriage relation as the foundation of the home and the state.
Wooden v. Wooden, 239 P. 231, 233 (Okla. 1925); see also Hunt v. Hunt, 100 P.
541, 543 (Okla. 1909) (stating that the marital relationship has consequences . . .
to the public).
Throughout history, marriage as a man-woman institution designed to serve
the needs of children has been ubiquitous and practically universal, spanning
diverse cultures, nations, and religions. As one anthropologist has stated, the
familybased on a union, more or less durable, but socially approved, of two
individuals of opposite sexes who establish a household and bear and raise
childrenappears to be a practically universal phenomenon, present in every type
of society. Claude Levi-Strauss, The View From Afar 40-41 (1985)
(Aplt.App.294-95). Another anthropologist offers similar observations: Marriage,
as the socially recognized linking of a specific man to a specific woman and her
offspring, can be found in all societies. Through marriage, children can be assured
of being born to both a man and a woman who will care for them as they mature.
24

112
G. Robina Quale, A History of Marriage Systems 2 (1988) (Aplt.App.301); see

also Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting) ([T]here is no doubt that,
throughout human history and across many cultures, marriage has been viewed as
an exclusively opposite-sex institution and as one inextricably linked to
procreation and biological kinship.).
Marriage as a public institution thus exists to channel sex between men and
women into stable unions for the benefit of the children that result and, thus, for
the good of society as a whole. Indeed, scholars from a wide range of disciplines
have acknowledged that marriage is social recognition . . . imposed for the
purpose of regulation of sexual activity and provision for offspring that may result
from it. Norval D. Glenn, The Struggle For Same-Sex Marriage, 41 Socy 25, 26
(2004); see also Douglas W. Allen, An Economic Assessment of Same-Sex
Marriage Laws, 29 Harv. J.L. & Pub. Poly 949, 957 (2006) (hereinafter Allen,
Economic Assessment) (Many economists have concluded that marriage is
primarily . . . designed to regulate procreative behavior); W. Bradford Wilcox et
al., eds., Why Marriage Matters 15 (2d ed. 2005) (Aplt.App.367) (hereafter
Wilcox, Marriage Matters I).
By channeling sexual relationships between a man and a woman into a
committed setting, marriage encourages mothers and fathers to remain together and
care for the children born of their union. Marriage is thus a socially arranged
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solution for the problem of getting people to stay together and care for children
that the mere desire for children, and the sex that makes children possible, does not
solve. James Q. Wilson, The Marriage Problem 41 (2002) (Aplt.App.348).
The genius of the [marital] system is that, through it, the society
normally holds the biological parents responsible for each other and
for their offspring. By identifying children with their parents, . . . the
social system powerfully motivates individuals to settle into a sexual
union and take care of the ensuing offspring.
Kingsley Davis, Introduction: The Meaning and Significance of Marriage in
Contemporary Society, in Contemporary Marriage: Comparative Perspectives on a
Changing Institution 1, 7-8 (Kingsley Davis ed., 1985) (Aplt.App.372-73).
The origins of our law affirm this enduring purpose of marriage. William
Blackstone stated that the principal end and design of marriage is linked directly
to the great relation[] of parent and child, and that the parent-child relation is
consequential to that of marriage. 1 William Blackstone, Commentaries *410
(Aplt.App.331). Blackstone further observed that it is by virtue of this relation
that infants are protected, maintained, and educated. Id. John Locke similarly
explained that the end of conjunction between male and female [i.e., marriage]
being not barely procreation, but the continuation of the species, this conjunction
betwixt male and female ought to last, even after procreation, so long as is
necessary to the nourishment and support of the young ones . . . . John Locke,
Second Treatise of Civil Government 79 (1690) (Aplt.App.288-89).
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These abiding purposes of marriage are reflected in Oklahoma law. The

presumption of paternity, for example, shows the States interest in legally
connecting husbands to both their wives and their children. See Okla. Stat. tit. 10,
7700-204(A)(1) (A man is presumed to be the father of a child if . . . [h]e and the
mother of the child are married to each other and the child is born during the
marriage). Demonstrating the States interest in encouraging biological parents to
stay together and raise their children, one of the grounds for divorce in Oklahoma
is that the wife[,] at the time of her marriage, was pregnant by another than her
husband. Okla. Stat. tit. 43, 101. And because the State has a heightened interest
in avoiding divorce for married parents raising their children, the law imposes a
waiting period for divorce where there are minor children involved, id. at
107.1(A)(1), and during that time, the parties may voluntarily participate in
marital or family counseling to assess the likelihood of reconciliation. Id. at
107.1(D).
Before the recent political movement to redefine marriage, it was commonly
understood and accepted, without a hint of controversy, that the public purpose of
marriage is to channel the presumptively procreative potential of sexual
relationships between men and women into committed unions for the benefit of
children and society. Certainly no other purpose can plausibly explain why
marriage is so universal or even why it exists at all. See Robert P. George et al.,
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What is Marriage? 38 (2012) ([T]he only way to account for the remarkable fact
that almost all cultures have regulated male-female sexual relationships is that
[t]hese relationships alone produce new human beings); Bertrand Russell,
Marriage & Morals 77 (Liveright Paperbound Edition, 1970) (Aplt.App.377)
(But for children, there would be no need of any institution concerned with sex.).
The District Court did not dispute that the public purpose of marriage is to
steer sexual relationships between men and women into committed unions to
benefit children and society. In fact, the court below accept[ed] that Oklahoma
has a legitimate interest . . . in steering naturally procreative relationships into
marriage, Aplt.App.679 (Op. at 56), and did not even attempt to proffer an
alternative social purpose for marriage.
B.
Windsor Emphasizes the States Authority to Define Marriage and

Thus Supports the Peoples Right to Enact the Marriage
Amendment.
Four principles from the Windsor decision, which at its heart calls for federal
deference to the States marriage policies, directly support the right of Oklahomans
to define marriage as they have.
First, the central theme of Windsor is the right of States to define marriage
for their community. See, e.g., 133 S. Ct. at 2689-90 (the definition and regulation
of marriage is within the authority and realm of the separate States); id. at 2691
(regulation of domestic relations, including laws defining . . . marriage, is an
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area that has long been regarded as a virtually exclusive province of the States
(quotation marks omitted)); id. (The definition of marriage is the foundation of
the States broader authority to regulate the subject of domestic relations); id.
(discussing state responsibilities for the definition and regulation of marriage);
id. at 2692 (discussing the States essential authority to define the marital
relation); see also Sosna, 419 U.S. at 404 (noting that States have an absolute
right to prescribe the conditions upon which the marriage relation between [their]
own citizens shall be created).
Second, Windsor stated, in no uncertain terms, that the Constitution permits
States to redefine marriage through the political process, extolling the importance
of allowing the formation of consensus when States decide critical questions like
the definition of marriage:
In acting first to recognize and then to allow same-sex marriages, New
York was responding to the initiative of those who sought a voice in
shaping the destiny of their own times. These actions were without
doubt a proper exercise of its sovereign authority within our federal
system, all in the way that the Framers of the Constitution intended.
The dynamics of state government in the federal system are to allow
the formation of consensus respecting the way the members of a
discrete community treat each other in their daily contact and constant
interaction with each other.
133 S. Ct. at 2692 (quotation marks, alterations, and citation omitted); see also id.
at 2693 (mentioning same-sex marriages made lawful by the unquestioned
authority of the States).
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Third, the Court in Windsor recognized that federalism provides ample room
for variation between States domestic-relations policies concerning which couples
may marry. See id. at 2691 (Marriage laws vary in some respects from State to
State.); id. (acknowledging that state-by-state marital variation includes the
permissible degree of consanguinity and the minimum age of couples seeking
to marry).
Fourth, Windsor stressed federal deference to the public policy reflected in
state marriage laws. See id. at 2691 ([T]he Federal Government, through our
history, has deferred to state-law policy decisions with respect to domestic
relations, including decisions concerning citizens marital status); id. at 2692
(discussing th[e] history and tradition of [federal] reliance on state law to define
marriage); id. at 2693 (mentioning the usual [federal] tradition of recognizing
and accepting state definitions of marriage).
These four principlesthat States have the right to define marriage for
themselves, that States have the right to redefine marriage as a genderless
institution, that States may differ in their marriage laws concerning which couples
are permitted to marry, and that federalism demands deference to state marriage
policieslead to one inescapable conclusion: that Oklahomans (no less than
citizens in States that have chosen to redefine marriage) have the right to define
marriage for their community. Any other outcome would contravene Windsor by
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federalizing a definition of marriage and overriding the policy decisions of States

(like Oklahoma) that have chosen to maintain the man-woman marriage institution.
1.
Windsors Equal-Protection Analysis Does Not Apply Here.
The District Courts and Plaintiffs reliance on Windsors equal-protection

analysis is unpersuasive. Windsor repeatedly stressed DOMAs unusual
characterits noveltyin depart[ing] from th[e] history and tradition of
[federal] reliance on state law to define marriage. 133 S. Ct. at 2692-93 (referring
to this feature of DOMA as unusual at least three times). The Court reasoned that
this unusual aspect of DOMA required careful judicial consideration and
revealed an improper purpose and effect. Id. at 2692; see also id. at 2693 (In
determining whether a law is motived by an improper animus or purpose,
discriminations of an unusual character especially require careful consideration.
(quotation marks and alterations omitted)); id. (DOMAs unusual deviation from
the usual tradition of recognizing and accepting state definitions of marriage . . . is
strong evidence of a law having the purpose and effect of disapproval).
The Marriage Amendment, however, is not an unusual or novel intrusion
into state authority, but a proper exercise of that power; for the State of Oklahoma,
unlike the federal government, has essential authority to define the marital
relation. Id. at 2692. And the Marriage Amendment is not an unusual departure
from settled law, but a reaffirmation of that law; for it simply enshrines in the
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Oklahoma Constitution the definition of marriage that has prevailed throughout the
States history and that continues to govern in the majority of States. Unusualness
thus does not plague the Marriage Amendment or suggest any improper purpose or
unconstitutional effect.
Additionally, Windsor confined its equal-protection analysis and its
holding to the federal governments treatment of couples who are joined in
same-sex marriages made lawful by the State. Id. at 2695-96. Thus, when
discussing the purposes and effects of DOMA, the Court focused particularly on
the fact that the federal government (a sovereign entity without legitimate authority
to define marriage) interfered with the choice of the State (a sovereign entity with
authority over marriage) to bestow the status of civil marriage on same-sex
couples. See id. at 2696 ([DOMA] refus[ed] to acknowledge a status the State
finds to be dignified and proper); id. ([DOMAs] purpose and effect [is] to
disparage and to injure those whom the State, by its marriage laws, sought to
protect). But those unique circumstances, of course, are not presented here. The
District Court, therefore, incorrectly concluded that Windsors reasoning
regarding the purpose and effect of DOMA can be readily applied to the purpose
and effect of similar or identical state-law marriage definitions. Aplt.App.659
(Op. at 36). If that were true, Windsors emphasis on the right of States to define
marriage for themselves would be meaningless.
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2.
The People Enacted the Marriage Amendment for

Legitimate and Compelling Purposes.
The Marriage Amendments purpose, as reflected in its plain language and

determined by its objective effect, is to ensure that the state judiciary cannot
change the definition of marriage that has always existed in Oklahoma law. By
preserving the status quo, the Amendment affirms the man-woman marriage
institution and its longstanding public purpose of channeling the presumptive
procreative potential of man-woman relationships into committed unions for the
benefit of children and society.
Seeking to obscure the important public interests furthered by the Marriage
Amendment, and intimating that the Amendment is like DOMA, the District Court
claimed that the People enacted it merely to promot[e] or uphold[] morality.
Aplt.App.676 (Op. at 53). As support for this, the court below cited newspaper
articles quoting three state legislators, one local politician, and an editorial writer,
suggesting that isolated and carefully selected quotes from these individuals reflect
the motivations of more than a million voters. Aplt.App.676-77 (Op. at 53-54).5
But Supreme Court precedent belies the District Courts consideration of these
extraneous materials to discern the Marriage Amendments purpose.
5
All of the newspaper articles that Plaintiffs submitted as exhibits, see

Aplt.App.155-66, and many of the articles that the District Court cited, see
Aplt.App.668-69, 676-77 (Op. at 45-46, 53-54), were published in Tulsa World,
the newspaper that employs Plaintiffs Bishop and Baldwin as editors.
Aplt.App.106-07 3-4.
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Notably, the Court in Romer, a case that discussed the purpose of a voterenacted statewide referendum, did not analyze public statements by the
referendums supporters, but gleaned intent exclusively from the laws objective
effect. Indeed, Romer drew the inevitable inference that the disadvantage
imposed by the challenged law was born of animosity solely from looking at
the language and effect of the law, which belie[d] any legitimate justifications that
may be claimed for it. 517 U.S. at 634-35. The Court did not look to any other
evidence, much less the extraneous statements that the District Court reviewed
below.
Nor does Windsor support the District Courts approach. To begin with,
Windsor stressed that laws motived by an improper animus or purpose reflect
[d]iscriminations of an unusual character. 133 S. Ct. at 2693. Yet here, as
explained above, see supra at 31-32, the Marriage Amendment is anything but
unusual, thereby belying the District Courts charge of an improper purpose.
Moreover, Windsor assessed DOMAs purpose by considering its official
legislative history, see 133 S. Ct. at 2693 (discussing the House Report), its text,
see id. (discussing the title of the law), and its objective effect, see id. at 2694
(discussing the laws operation in practice and its principal effect). The Court
did not cite any public statements outside the official legislative record. The
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District Court thus erred in proffering newspaper statements as evidence of the

Marriage Amendments purpose.6
In any event, considering what was said during the public debate does not
support the District Courts view of the Marriage Amendments purpose. The
public discussion leading up to the votewhen considered in its totality
confirms that the People enacted the Amendment to ensure that the definition of
marriage in Oklahoma will be determined by the People rather than (as had just
occurred in Massachusetts, see Goodridge, 798 N.E.2d at 969) by state-court
judges.
Indeed, the Oklahoma Senate issued a press release stating that the Marriage
Amendment, like similar laws in other States, was intended to provide
constitutional protections to traditional marriage to combat efforts by . . . activist
judges seeking to redefine marriage[.] Aplt.App.667 (Op. at 44) (emphasis
omitted). State Senator James Williamson, the legislator most cited by the District
Oklahoma law confirms this. Indeed, the State Supreme Court, when determining
voter intent for a constitutional amendment, likewise confines its review to the
measures ballot title, text, and objective effect. Sw. Bell Tel. Co. v. Oklahoma
State Bd. of Equalization, 231 P.3d 638, 642 (Okla. 2009) (When construing a
constitutional amendment that was proposed by the Legislature pursuant to the
[referendum process], th[e] Court will read the ballot title together with the text of
the measure to discern the intent of the Legislature as the framers and of the
electorate as the adopters of the constitutional amendment).
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Court, repeatedly emphasized this purpose.7 And another legislator quoted by the
District Court, State Representative Todd Hiett, also discussed that goal.8 Thus, far
from revealing an improper impetus, the public discussion of the Marriage
Amendment corroborates that the People enacted it to achieve the compelling
purposes of preserving their voice in shaping the destiny of their own times,
See, e.g., Marie Price, Republican legislators wary of same-sex ruling, Tulsa
World, Feb. 6, 2004 (Aplt.App.155) (Legislative Republicans said Thursday that
this weeks Massachusetts Supreme Court ruling outlining constitutional protection
for same-sex marriages puts Oklahoma in jeopardy of a similar decision. . . . [The
Governors] reluctance to protect traditional marriage could put Oklahoma at risk
that a court will force same-sex unions on us here. Williamson said.); David
Harper, Focus: Gay-marriage clamor grows louder and louder, Tulsa World, Mar.
22, 2004 (Aplt.App.163) (Williamson . . . said that after the Massachusetts court
ruled, he asked his staff members to analyze whether Oklahomas laws could be
interpreted the same way by a court. After hearing that they could, Williamson said
he wanted the state constitution changed to make it clear that marriage in
Oklahoma is with one man and one woman.); Ron Jenkins, Agreement ends fight
on same-sex marriage ban, Associated Press, Apr. 14, 2004 (State law already
bans same-sex marriages in Oklahoma, but Williamson said it is important to put
the prohibition in the state Constitution to prevent an activist judge from ruling
the law unconstitutional.); Ray Carter, Marriage question among most popular on
state ballot, Journal Record, Oct. 12, 2004 (Supporters say the amendment was
made necessary by judicial activists. Its a response to the Massachusetts Supreme
Court decision wherein they declared, based on their constitution, their marriage
laws are unconstitutional, said Sen. James Williamson, . . . a leader in the effort to
put the issue on the ballot. And since we have a similar equal protection clause in
our constitution we wanted to make it clear in Oklahoma that marriage is between
one man and one woman and by putting it in the constitution we protect it from
that kind of court decision.).
8
See Price, supra, at 1 (Aplt.App.155) (The Massachusetts decision just further
emphasizes the need in the state of Oklahoma for us to address the issue
constitutionally, Hiett said.).
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Windsor, 133 S. Ct. at 2692, and retaining the man-woman marriage institution for
the good of children and society.
C.
Rational-Basis Review Applies to Plaintiffs Claims.
Rational-basis review applies here because the Marriage Amendment does

not infringe a fundamental right or impermissibly discriminate based on a suspect
classification. See Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1213 (10th
Cir. 2002).
1.
Plaintiffs Claims Do Not Implicate a Fundamental Right.
Plaintiffs below argued that their claims implicate a fundamental right,

Aplt.App.076-78, but that argument conflicts with Supreme Court precedent. In
Washington v. Glucksberg, 521 U.S. 702 (1997), the Court demarcated the process
for ascertaining whether an asserted right is fundamental, identifying two primary
features of the analysis. Id. at 720. The Court required a careful description of
the asserted fundamental liberty interest, id. at 721 (quotation marks omitted), and
reaffirmed that the carefully described right must be objectively, deeply rooted in
this Nations history and tradition. Id. at 720-21 (quotation marks omitted).
Plaintiffs assert that they have raised the right to marry the person of their
choice regardless of sex, Aplt.App.076, but this exceedingly expansive
characterization runs afoul of Glucksbergs careful description command. In
Glucksberg, the plaintiffs sought to evade the obvious lack of historical support for
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their claimed right to assisted suicide by variously defining it as a liberty to

choose how to die, a right to control of ones final days, a right to choose a
humane, dignified death, and a liberty to shape death. 521 U.S. at 722
(quotation marks omitted). The Supreme Court rejected those formulations and
instead carefully described the asserted right with specificity as the right to
commit suicide which itself includes a right to assistance in doing so. Id at 723.
The Court then concluded that no such liberty had ever existed in the Nations
history or tradition, and accordingly refused to reverse centuries of legal doctrine
and practice. Id. The same logic applies here, and thus this Court should decline
to adopt Plaintiffs exceedingly broad characterization of the asserted right.
Nor can Plaintiffs rely on the established fundamental right to marry upheld
by the Supreme Court, for that deeply rooted right is the right to enter the
relationship of husband and wife. Marriage, after all, is a term that, throughout
Supreme Court precedent developing the fundamental right to marry, has always
meant the union . . . of one man and one woman. Murphy v. Ramsey, 114 U.S.
15, 45 (1885). Indeed, every case vindicating the fundamental right to marry has
involved a man marrying a woman. And the Supreme Courts repeated references
to the vital link between marriage and our very existence and survival confirm
that the Court has understood marriage as a gendered relationship with an intrinsic
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connection to procreation. See, e.g., Loving, 388 U.S. at 12; Zablocki, 434 U.S. at
383-84.
Lest there be any doubt, the Supreme Court has already indicated that the
fundamental right to marry does not include the right to marry a person of the same
sex. Just four years after Loving, the Court was presented with the same asserted
fundamental right raised here, but it denied that claim on the merits, summarily and
unanimously. Baker, 409 U.S. at 810. And as the District Court intimated, the
Supreme Courts recent decision in Windsor contains language confirming that
Plaintiffs assert a new right, rather than one subsumed within the Courts prior
right to marry cases. Aplt.App.671 n.33 (Op. at 48 n.33). Windsor stated:
It seems fair to conclude that, until recent years, many citizens had not
even considered the possibility that two persons of the same sex might
aspire to . . . lawful marriage. For marriage between a man and a
woman no doubt had been thought of by most people as essential to
the very definition of that term and to its role and function throughout
the history of civilization. . . . The limitation of lawful marriage to
heterosexual couples . . . for centuries had been deemed both
necessary and fundamental[.]
133 S. Ct. at 2689. This discussion belies any suggestion that the fundamental right
to marry rooted in the history and tradition of our Nation includes the right to
marry a person of the same sex.
With the right at issue properly framed, it cannot be said that the alleged
right to marry a person of the same sex is objectively, deeply rooted in this
Nations history and tradition. Glucksberg, 521 U.S. at 720-21 (quotation marks
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omitted). Same-sex marriage was unknown in the laws of this Nation before 2004,
see Goodridge, 798 N.E.2d at 970, and is permitted or recognized in only a
minority of States (17) even now. See Brief of Appellants at Addendum 2, Kitchen
v. Herbert (10th Cir. Feb. 3, 2014) (No. 13-4178). Also, much like in Glucksberg,
see 521 U.S. at 717-18, the adoption of genderless marriage in a minority of
jurisdictions has provoked a reaffirmation of man-woman marriage in nearly twice
as many States (33). See Brief of Appellants at Addendum 2, Kitchen v. Herbert
(10th Cir. Feb. 3, 2014) (No. 13-4178).
It is thus not surprising that the overwhelming majority of courts that have
faced this question, under a state or the federal constitution, have concluded that
there is no fundamental constitutional right to marry a person of the same sex. See,
e.g., Bruning, 455 F.3d at 870-71; Jackson v. Abercrombie, 884 F. Supp. 2d 1065,
1096 (D. Haw. 2012); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 879 (C.D.
Cal. 2005), affd in part, vacated in part, remanded, 447 F.3d 673 (9th Cir. 2006);
Wilson v. Ake, 354 F. Supp. 2d 1298, 1307 (M.D. Fla. 2005); In re Kandu, 315
B.R. 123, 140 (Bankr. W.D. Wash. 2004); Conaway v. Deane, 932 A.2d 571, 62429 (Md. 2007); Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006); Andersen v. King
Cnty., 138 P.3d 963, 976-79 (Wash. 2006) (plurality opinion); Hernandez v.
Robles, 855 N.E.2d 1, 9-10 (N.Y. 2006); Baehr, 852 P.2d at 57; Jones v. Hallahan,
501 S.W.2d 588, 590 (Ky. 1973); Baker, 191 N.W.2d at 186; In re Marriage of
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J.B. & H.B., 326 S.W.3d 654, 675-76 (Tx. Ct. App. 2010); Morrison v. Sadler, 821
N.E.2d 15, 32-34 (Ind. App. 2005); Standhardt v. Super. Ct., 77 P.3d 451, 460
(Ariz. Ct. App. 2003); Kern v. Taney, 11 Pa. D & C. 5th 558, 570-74 (Pa. Com. Pl.
2010); Storrs v. Holcomb, 645 N.Y.S.2d 286, 287-88 (N.Y. Sup. Ct. 1996).
2.

Discriminate on the Basis of Sex.
Plaintiffs below argued that the Marriage Amendment discriminates based

on sex and thus require[s] heightened scrutiny. Aplt.App.084. The District
Court correctly concluded that the Marriage Amendment does not impermissibly
discriminate on the basis of sex because it does not draw any distinctions between
same-sex male couples and same-sex female couples, does not place any
disproportionate burdens on men and women, and does not draw upon stereotypes
applicable only to male or female couples. Aplt.App.672 (Op. at 49). This Court
should affirm that analysis.
The Supreme Courts sex-discrimination equal-protection cases have never
strayed from the baseline rule that a law does not impermissibly discriminate on
the basis of sex unless it subjects men as a class or women as a class to disparate
treatment. The laws that the Supreme Court has invalidated because of
impermissible sex-based classifications have all treated men and women
differently. Smelt, 374 F. Supp. 2d at 876 (citing United States v. Virginia, 518
U.S. 515, 519-20 (1996) (excluding women from attending military college); Miss.
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Univ. for Women v. Hogan, 458 U.S. 718, 718-19 (1982) (excluding men from
attending nursing school); Craig v. Boren, 429 U.S. 190, 191-92 (1976) (allowing
women to buy beer at a lower age than men); Frontiero v. Richardson, 411 U.S.
677, 678-79 (1973) (imposing a higher burden on females than males to establish
spousal dependency); Reed v. Reed, 404 U.S. 71, 73 (1971) (affording automatic
preference for men over women when administering estates)).
The Marriage Amendment, however, does not discriminate on the basis of
sex because it treats men and women equally: any man or woman may marry a
person of the opposite sex; and no man or woman may marry a person of the same
sex. So it is no marvel that almost every court (including the District Court here)
that has addressed whether the man-woman definition of marriage constitutes sex
discrimination has flatly rejected the claim. See, e.g., Jackson, 884 F. Supp. 2d at
1098-99; Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1004-05 (D. Nev. 2012); In re
Marriage Cases, 183 P.3d 384, 439 (Cal. 2008); Conaway, 932 A.2d at 598-99;
Andersen, 138 P.3d at 988 (plurality opinion); Hernandez, 855 N.E.2d at 10-11;
Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999); Singer v. Hara, 522 P.2d 1187,
1192 (Wash. Ct. App. 1974); Baker, 191 N.W.2d at 187.
Seeking to escape the weight of that precedent, Plaintiffs below invoked
Loving v. Virginia to bolster their sex-discrimination theory. See Aplt.App.085.
But that argument is unavailing. The miscegentation law struck down in Loving
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was based upon distinctions drawn according to race. 388 U.S. at 11. But from a
constitutional perspective, distinctions in race are different than distinctions in sex.
As the Supreme Court has explained:
[O]ur precedent . . . does not make sex a proscribed classification.
Supposed inherent differences are no longer accepted as a ground for
race or national origin classifications. Physical differences between
men and women, however, are enduring: The two sexes are not
fungible; a community made up exclusively of one sex is different
from a community composed of both.
Virginia, 518 U.S. at 533 (quotation marks, citations, and alterations omitted).
Therefore, the proper question when assessing a sex-discrimination claim, as
explained above, is whether men as a class are treated differently from women as a
class (or vice versa). Id at 532-34. If the law were otherwise, the State would create
a constitutional crisis every time it offered sex-specific restrooms, locker rooms,
living facilities, or sports teams. But acknowledging the real biological distinctions
between men and women (or, as in this case, between couples comprising one sex,
whether men or women, and couples comprising both sexes) is not discrimination
when both men and women have the same benefits and restrictions.
3.
The Classification Drawn by the Marriage Amendment Is

Based on a Distinguishing Characteristic Relevant to the
States Interest in Marriage.
Equal-protection analysis requires the reviewing court to precisely identify

the classification drawn by the challenged law. See San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 18-29 (1973); see also Califano v. Boles, 443 U.S. 282,
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112
293-94 (1979) (The proper classification for purposes of equal protection analysis
. . . begin[s] with the statutory classification itself.). By defining marriage as the
union of man and woman, diverse societies, including the People of Oklahoma,
have drawn a line between man-woman couples and all other types of relationships
(including same-sex couples). This is the precise classification at issue here, as the
District Court acknowledged, see Aplt.App.665 (Op. at 42) (defining the relevant
class as same-sex couples desiring an Oklahoma marriage license), and it is based
on an undeniable biological difference between man-woman couples and same-sex
couplesnamely, the natural capacity to create children.
This biological distinction, as explained above, see supra at 23-28, relates
directly to Oklahomas interests in regulating marriage. And this distinguishing
characteristic establishes that Oklahomas definition of marriage is subject only to
rational-basis review, for as the Supreme Court has explained:
[W]here individuals in the group affected by a law have distinguishing
characteristics relevant to interests the State has the authority to
implement, the courts have been very reluctant, as they should be in
our federal system and with our respect for the separation of powers,
to closely scrutinize legislative choices as to whether, how, and to
what extent those interests should be pursued. In such cases, the Equal
Protection Clause requires only a rational means to serve a legitimate
end.
Cleburne, 473 U.S. at 441-42. Relying on this Supreme Court precedent, New
Yorks highest court conclude[d] that rational basis scrutiny is appropriate when
review[ing] legislation governing marriage and family relationships because [a]
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persons preference for the sort of sexual activity that cannot lead to the birth of
children is relevant to the States interest in fostering relationships that will serve
children best. Hernandez, 855 N.E.2d at 11.
Even if this relevant biological difference between man-woman couples and
same-sex couples were characterized as a sexual-orientation-based distinction
rather than the couple-based procreative-related distinction that it is, this Court,
like many others, has previously rejected the notion that homosexuality is a
suspect classification. Price-Cornelison, 524 F.3d at 1113 n.9 (collecting cases).
The District Court acknowledged this, see Aplt.App.673-74 (Op. at 50-51), and
Plaintiffs conceded it below. See Aplt.App.084-085, 091-092 n.11 (The Tenth
Circuit has declined to view sexual orientation standing alone as a suspect
classification.). Rational-basis review thus applies here.
D.
The Marriage Amendment Satisfies Rational-Basis Review.
Rational-basis review constitutes a paradigm of judicial restraint, under

which courts have no license . . . to judge the wisdom, fairness, or logic of
legislative choices. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313-14 (1993).
A statutory classification fails rational-basis review only when it rests on grounds
wholly irrelevant to the achievement of the States objective. Heller v. Doe, 509
U.S. 312, 324 (1993) (quotation marks omitted); see also Dandridge v. Williams,
397 U.S. 471, 485 (1970) (noting that the challenged classification need not be
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made with mathematical nicety). Thus, the Marriage Amendment must be

upheld . . . if there is any reasonably conceivable state of facts that could provide a
rational basis for it. Heller, 509 U.S. at 320. And because marriage has always
been, in our federal system, the predominant concern of state government . . .
rational-basis review must be particularly deferential in this context. Bruning, 455
F.3d at 867; see also Windsor, 133 S. Ct. at 2691 (marriage is an area that has
long been regarded as a virtually exclusive province of the States).
Plaintiffs have the burden to negative every conceivable basis which might
support the Marriage Amendment. Beach Commcns, 508 U.S. at 315 (quotation
marks omitted). And although Smith has done so in this case, the government is
not required to produce evidence or empirical data to support the challenged law.
Id.
1.
The Marriage Amendment Furthers Compelling Interests.
By providing special recognition, encouragement, and support to manwoman relationships, the institution of marriage recognized by the Oklahoma
Constitution seeks to channel potentially procreative conduct into stable, enduring
relationships, where that conduct is likely to further, rather than harm, societys
vital interests. The interests that the State furthers through this channeling function
are at least threefold: (1) providing stability to the types of relationships that result
in unplanned pregnancies and thereby avoiding or diminishing the negative
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outcomes often associated with unintended children; (2) encouraging the rearing of
children by both their mother and their father; and (3) encouraging men to commit
to the mothers of their children and jointly raise the children they beget. These
interests, as explained below, promote the welfare of children and society; and thus
they are not merely legitimate but compelling, for [i]t is hard to conceive an
interest more . . . more paramount for the state than promoting an optimal social
structure for educating, socializing, and preparing its future citizens to become
productive participants in civil society. Lofton v. Secy of the Dept of Children &
Family Servs., 358 F.3d 804, 819 (11th Cir. 2004). The District Court, therefore,
could not but accept[] that Oklahoma has a legitimate interest . . . in steering
naturally procreative relationships into marriage[.] Aplt.App.679 (Op. at 56).
Unintended Children. The State has a compelling interest in addressing the
particular concerns associated with the birth of unplanned children. Unintended
pregnancies account for nearly half of the births in the United States. See Lawrence
B. Finer and Mia R. Zolna, Unintended Pregnancy in the United States: Incidence
and Disparities, 2006, 84 Contraception 478, 481 Table 1 (2011) (finding that
nearly half of all pregnancies in the United States, and nearly 70 percent of
pregnancies that occur outside marriage, were unintended); Elizabeth Wildsmith et
al., Childbearing Outside of Marriage: Estimates and Trends in the United States,
Child Trends Research Brief 5 (Nov. 2011), available at http://www.childtrends.
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org/wp-content/uploads/2013/02/Child_Trends-2011_11_01_RB_NonmaritalCB
.pdf (stating that many nonmarital births are unintended). Yet unintended births
out of wedlock are associated with negative outcomes for children. Wildsmith,
supra, at 5.
In particular, children born from unplanned pregnancies where their mother
and father are not married to each other are at a significant risk of being raised
outside stable family units headed by their mother and father jointly. See William
J. Doherty et al., Responsible Fathering, 60 J. Marriage & Fam. 277, 280 (1998)
(Aplt.App.471) (In nearly all cases, children born outside of marriage reside with
their mothers and experience marginal father presence). And unfortunately, on
average, children do not fare as well when they are raised outside stable marriages
between [their] biological parents, as a leading social-science survey explains:
Children in single-parent families, children born to unmarried
mothers, and children in stepfamilies or cohabiting relationships face
higher risks of poor outcomes than do children in intact families
headed by two biological parents. . . . There is thus value for children
in promoting strong, stable marriages between biological parents.
Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does
Family Structure Affect Children, and What Can We do About It?, Child Trends
Research Brief 6 (June 2002) (Aplt.App.384).
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Thus, unintended pregnanciesthe frequent result of sexual relationships

between men and women, but never the product of same-sex relationshipspose
particular concerns for children and, by extension, for society.
Biological Parents. The State also has a compelling interest in encouraging
biological parents to join in a committed union and raise their children together.
Indeed, the Supreme Court has recognized a constitutional liberty interest in the
natural family, a paramount interest having its source . . . in intrinsic human
rights. Smith v. Org. of Foster Families For Equal. & Reform, 431 U.S. 816, 845
(1977). While that right surely vests in natural parents, id. at 846, children [also]
have a reciprocal interest in knowing their biological parents. Adoptive Couple v.
Baby Girl, 133 S. Ct. 2552, 2582 (2013) (Sotomayor, J., dissenting); see also
United Nations Convention on the Rights of the Child art. 7, 1 (The child . . .
shall have . . . , as far as possible, the right to know and be cared for by his or her
parents.).
[T]he biological bond between a parent and a child is a strong foundation
for a stable and caring relationship. Adoptive Couple, 133 S. Ct. at 2582
(Sotomayor, J., dissenting). The law has thus historically presumed that these
natural bonds of affection lead parents to act in the best interests of their
children. Parham v. J.R., 442 U.S. 584, 602 (1979); accord Troxel v. Granville,
530 U.S. 57, 68 (2000); see also 1 William Blackstone, Commentaries *435
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112
(Aplt.App.334) (recognizing the insuperable degree of affection for ones natural

children implant[ed] in the breast of every parent).
Social science has proven this presumption well founded, as the most
reliable studies have shown that, on average, children develop best when reared by
their married biological parents in a stable family unit. As one social-science
survey has explained, research clearly demonstrates that family structure matters
for children, and the family structure that helps children the most is a family
headed by two biological parents in a low-conflict marriage. Moore, supra, at 6
(Aplt.App.384). Thus, it is not simply the presence of two parents . . . , but the
presence of two biological parents that seems to support childrens development.
Id. at 1-2 (Aplt.App.379-80). Many other studies and social-science reviews
corroborate the importance of biological parents.9
See, e.g., W. Bradford Wilcox et al., eds., Why Marriage Matters 15 (3d ed.
2011) (hereafter Wilcox, Marriage Matters II) (The intact, biological, married
family remains the gold standard for family life in the United States, insofar as
children are most likely to thriveeconomically, socially, and psychologicallyin
this family form.); Wendy D. Manning and Kathleen A. Lamb, Adolescent Well
Being in Cohabiting, Married, and Single-Parent Families, 65 J. Marriage & Fam.
876, 890 (2003) (Aplt.App.437) (hereafter Manning, Adolescent) (Adolescents
in married, two-biological-parent families generally fare better than children in any
of the family types examined here, including single-mother, cohabiting stepfather,
and married stepfather families. The advantage of marriage appears to exist
primarily when the child is the biological offspring of both parents. Our findings
are consistent with previous work[.]); Sara McLanahan and Gary Sandefur,
Growing Up with a Single Parent: What Hurts, What Helps 1 (1994)
(Aplt.App.487) (Children who grow up in a household with only one biological
parent are worse off, on average, than children who grow up in a household with
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Further confirming the primacy of the biological home is a body of

scholarship demonstrating that children raised in stepfamilies, on average, do not
fare as well as children raised by their biological parents in an intact family. It
surely make[s] a difference in childrearing, Professor David Popenoe explains,
whether the father is biologically related to the child[.] David Popenoe, Life
Without Father 150 (1996) (Aplt.App.450); see also Wilson, supra, at 169-70
(Aplt.App.350-51) (discussing studies showing disparities between children raised
by stepfathers and children raised by their biological fathers). For example, girls
raised in stepfamilies are much more likely to experience premature sexual
development often leading to teenage pregnancy. Wilcox, Marriage Matters I, at 7,
14 (Aplt.App.359, 366); Witherspoon Institute, Marriage and the Public Good:
Ten Principles 10 (2008) (Aplt.App.502). And boys raised in stepfamilies are
much more likely to display antisocial behavior. Witherspoon Institute, supra, at
10-11 (Aplt.App.502-03).
In addition to these tangible deficiencies in development, children deprived
of their substantial interest in know[ing] [their] natural parents, as the Supreme
Court has recognized, experience a loss[] [that] cannot be measured, one that
both of their biological parents, regardless of the parents race or educational

background, regardless of whether the parents are married when the child is born,
and regardless of whether the resident parent remarries.).
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may well be far-reaching. Santosky v. Kramer, 455 U.S. 745, 760 n.11 (1982).
Indeed, studies reflect that [y]oung adults conceived through sperm donation
(who thus lack a connection to their biological father) experience profound
struggles with their origins and identities. Elizabeth Marquardt et al., My Daddys
Name is Donor: A New Study of Young Adults Conceived Through Sperm
Donation,
Institute
for
American
Values,
http://familyscholars.org/my-daddys-name-is-donor-2/;
at
see
also
available
at
Witherspoon
Institute, supra, at 10 (Aplt.App.502) (discussing Kyle D. Pruett, Fatherneed

(2000) (Aplt.App.462)).
Children thus have weighty tangible and intangible interests in being reared
by their own mother and father in a stable home. But they, as a class of citizens
unable to advocate for themselves, must depend on the State to protect those
interests for them.
Fathers. The State also has a compelling interest in encouraging fathers,
often referred to as the weak link in the family system, see Davis, supra, at 8
(Aplt.App.373), to remain with their childrens mothers and participate in raising
them. The weight of scientific evidence seems clearly to support the view that
fathers matter. Wilson, supra, at 169 (Aplt.App.350). A substantial body of
research now indicates that high levels of involvement by fathers in two-parent
families are associated with a range of desirable outcomes in children . . . . The
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converse is also true: low levels of involvement are associated with a range of
negative outcomes. Adrienne Burgess, Fathers and public services, in Daddy
Dearest?, Institute for Public Policy Research 57 (Kate Stanley ed., 2005)
(Aplt.App.460).10 President Obama has lamented the great social costs of
fatherlessness:
We know the statisticsthat children who grow up without a father
are five times more likely to live in poverty and commit crime; nine
times more likely to drop out of schools and twenty times more likely
to end up in prison. They are more likely to have behavioral problems,
or run away from home or become teenage parents themselves. And
the foundations of our community are weaker because of it.
Barack Obama, Obamas Speech on Fatherhood (Jun. 15, 2008), transcript
available at http://www.realclearpolitics.com/articles/2008/06/obamas_speech_
on_fatherhood.html.
The importance of fathers reflects the importance of gender-differentiated
parenting. The burden of social science evidence supports the idea that genderdifferentiated parenting is important for human development. Popenoe, supra, at
146 (Aplt.App.448). Indeed, both commonsense and [t]he best psychological,
10
See also Elrini Flouri and Ann Buchanan, The role of father involvement in
childrens later mental health, 26 J. Adolescence 63, 63 (2003) (Father
involvement . . . protect[s] against adult psychological distress in women.); Bruce
J. Ellis et al., Does Father Absence Place Daughters at Special Risk for Early
Sexual Activity and Teenage Pregnancy?, 74 Child Dev. 801, 801 (2003) (Greater
exposure to father absence [is] strongly associated with elevated risk for early
sexual activity and adolescent pregnancy.); Pruett, supra, at 158 (Aplt.App.465);
Popenoe, supra, at 139-63 (Aplt.App.444-56).
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sociological, and biological research confirm that men and women bring
different gifts to the parenting enterprise, [and] that children benefit from having
parents with distinct parenting styles[.] W. Bradford Wilcox, Reconcilable
Differences: What Social Sciences Show About Complementarity of Sexes &
Parenting, Touchstone, Nov. 2005.
Recognizing the child-rearing benefits that flow from the diversity of both
sexes is consistent with our legal traditions. See Bowen v. Gilliard, 483 U.S. 587,
614 (1987) (Brennan, J., dissenting) (acknowledging that children have a
fundamental interest in sustaining a relationship with their mother and a
fundamental interest . . . in sustaining a relationship with their father because,
among other reasons, the optimal situation for the child is to have both an
involved mother and an involved father (alterations omitted)). Indeed, our
constitutional jurisprudence acknowledges that [t]he two sexes are not fungible.
Virginia, 518 U.S. at 533; see also id. (a community made up exclusively of one
sex is different from a community composed of both (alteration omitted)). And
the Supreme Court has recognized that diversity in education is beneficial for
adolescents development. See Grutter v. Bollinger, 539 U.S. 306, 327-33 (2003).
It thus logically follows that a child would benefit from the diversity of having
both her father and mother involved in her everyday upbringing. See Hernandez,
855 N.E.2d at 7 (permitting the State to conclude that it is better, other things
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being equal, for children to grow up with both a mother and a father). The State,
therefore, has a vital interest in fostering the involvement of fathers in the lives of
their children.
2.
The Marriage Amendment Is Rationally Related to

Furthering Compelling Interests.
Under the rational-basis test, the State establishes the requisite relationship
between its interests and the means chosen to achieve those interests when the
inclusion of one group promotes a legitimate governmental purpose, and the
addition of other groups would not[.] Johnson, 415 U.S. at 383. Similarly, the
State satisfies rational-basis review if it enacts a law that makes special provision
for a group because its activities threaten legitimate interests . . . in a way that
other [groups activities] would not. Cleburne, 473 U.S. at 448.
Therefore, the relevant inquiry here is not, as the District Court would have
it, whether excluding same-sex couples from marriage furthers the States
interest in steering man-woman couples into marriage, or whether [p]ermitting
same-sex couples to receive a marriage license . . . harm[s] the States
advancement of that interest. Aplt.App.681 (Op. at 58); see also Aplt.App.689
(Op. at 66) (searching for a rational link between exclusion of this class from civil
marriage and promotion of a legitimate governmental objective). Rather, the
relevant question is whether an opposite-sex definition of marriage furthers
legitimate interests that would not be furthered, or furthered to the same degree, by
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allowing same-sex couples to marry. Jackson, 884 F. Supp. 2d at 1107; accord

Andersen, 138 P.3d at 984 (plurality opinion); Morrison, 821 N.E.2d at 23, 29;
Standhardt, 77 P.3d at 463.
Other principles of equal-protection jurisprudence confirm that this is the
appropriate inquiry, for the Constitution does not compel the State to include
groups that do not advance a legitimate purpose alongside those that do. This
commonsense rule represents an application of the general principle that [t]he
Constitution does not require things which are different in fact or opinion to be
treated in law as though they were the same. Vacco v. Quill, 521 U.S. 793, 799
(1997) (quotation marks and citation omitted). [W]here a group possesses
distinguishing characteristics relevant to interests the State has the authority to
implement, a States decision to act on the basis of those differences does not give
rise to a constitutional violation. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531
U.S. 356, 366-67 (2001) (quotation marks omitted).
Under this analysis, the Marriage Amendment plainly satisfies constitutional
review. Sexual relationships between men and women, and only such relationships,
naturally produce children, and they often do so unintentionally. See Finer, supra,
at 481 Table 1.11 By granting recognition and support to man-woman couples,
11
As demonstrated above, it is the presumptive procreative capacity of manwoman relationshipsincluding the very real threat that capacity poses to the
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marriage generally makes those potentially procreative relationships more stable

and enduring, and thus increases the likelihood that each child will be raised by the
man and woman whose sexual union brought her into the world. See, e.g.,
Wildsmith, supra, at 5 (promoting marriage among unmarried parents remain[s]
[an] important goal[] of federal and state policies and programs designed to
improve the well-being of women and children); Wendy D. Manning et al., The
Relative Stability of Cohabiting and Marital Unions for Children, 23 Population
Research & Poly Rev. 135, 135 (2004) (hereafter Manning, Stability) (children
born to cohabiting parents experience greater levels of instability than children
born to married parents).
Sexual relationships between individuals of the same sex, by contrast, do not
unintentionally create children as a natural byproduct of their sexual relationship;
they bring children into their relationship only through intentional choice and
action. Moreover, it is a biological reality that same-sex couples do not provide
children with both their mother and their father. Those couples thus neither
advance nor threaten societys public purpose for marriage in the same manner, or
to the same degree, that sexual relationships between men and women do. Under
interests of society and to the welfare of children conceived unintentionallythat

the institution of marriage has always sought to address. See supra at 23-28.
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Johnson and Cleburne, that is the end of the analysis: the Marriage Amendment
should be upheld as constitutional.
In short, it is plainly reasonable for Oklahoma to maintain a unique
institution to address the unique challenges and opportunities posed by the
procreative potential of sexual relationships between men and women. See, e.g.,
Vance v. Bradley, 440 U.S. 93, 109 (1979) (stating that a law may dr[aw] a line
around those groups . . . thought most generally pertinent to its objective);
Johnson, 415 U.S. at 378 (stating that a classification will be upheld if
characteristics peculiar to only one group rationally explain the statutes different
treatment of the two groups). Consequently, the commonsense distinction,
Heller, 509 U.S. at 326, that Oklahoma law has always drawn between same-sex
couples and man-woman couples is neither surprising nor troublesome from a
constitutional perspective. Nguyen v. INS, 533 U.S. 53, 63 (2001).
That is why a host of judicial decisions have concluded that the many
laws defining marriage as the union of one man and one woman and extending a
variety of benefits to married couples are rationally related to the government
interest in steering procreation into marriage. Bruning, 455 F.3d at 867-68; see,
e.g., Jackson, 884 F. Supp. 2d at 1112-14; In re Marriage of J.B. & H.B., 326
S.W.3d at 677-78; Conaway, 932 A.2d at 630-34; Andersen, 138 P.3d at 982-85
(plurality opinion); Hernandez, 855 N.E.2d at 7-8; Morrison, 821 N.E.2d at 23-31;
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112
Standhardt, 77 P.3d at 461-64; Adams v. Howerton, 486 F. Supp. 1119, 1124-25

(C.D. Cal. 1980); Singer, 522 P.2d at 1197; Baker, 191 N.W.2d at 186-87.
3.
The District Court Erred in its Rational-Basis Analysis.
The District Courts most fundamental misstep in applying the rational-basis

test was inverting the standard and requiring the government to demonstrate that
excluding same-sex couples would advance the state interests identified above.
Aplt.App.681 (Op. at 58); accord id. at 685 (Op. at 62) (focusing on exclusion).
The court, instead, should have accepted the biological reality that same-sex
couples simply do not implicate the States interests in (1) providing stability to the
types of relationships that result in unplanned pregnancies, (2) encouraging the
rearing of children by both their mother and their father, and (3) encouraging men
to commit to the mothers of their children and jointly raise the children they beget.
Seeking to discredit the States purpose for marriage, the District Court
observed that [c]ivil marriage in Oklahoma does not have any procreative
prerequisites. Aplt.App.681 (Op. at 58). But that argument rests on a
misunderstanding of the States enduring purpose for recognizing marriage. That
purpose is not to ensure that all marital unions produce children. Instead, it is to
channel the presumptive procreative potential of man-woman relationships into
enduring marital unions so that if any children are born, they are more likely to be
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raised in stable family units by both their mothers and fathers. The States purpose,
in other words, is prophylactic rather than prescriptive.
Furthermore, the state-imposed procreative prerequisites implicitly
demanded by the District Court would be unconstitutional, ineffective, and
damaging to societys public purpose for marriage. They would be unconstitutional
because the presumed enforcement measurespremarital inquisitions about
procreative intentions and fertility testingwould unquestionably impinge upon
constitutionally protected privacy rights. See Griswold v. Connecticut, 381 U.S.
479, 485-86 (1965). And they would be ineffective because many fertile manwoman couples who do not plan to have children may experience unintended
pregnancies or simply change their minds. See Standhardt, 77 P.3d at 462. Also,
some couples who believe that they are infertile might find out otherwise due to
the medical difficulty of determining fertility, or they might remedy their infertility
through modern medical advances. See id.
Because these intrusive measures would be ineffective, the State would keep
from marriage man-woman couples who subsequently procreate. Yet that would
impair the States achievement of its goals by resulting in the birth of children to
mothers who are not married to their childrens fathers. Demanding these
procreative prerequisites, moreover, would undermine the States interest because
even where a couple together is infertile, if one of the spouses is not, permitting the
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couple to marry decreases the likelihood that the fertile spouse will engage in
sexual activity with a potentially fertile third party (and possibly create an
unintended child). Finally, even if both spouses are infertile, allowing them to wed
furthers the States purposes for marriage by reinforcing the social expectation that
man-woman couples in sexual relationships should marry. For all these reasons, as
many courts have recognized, the absence of procreative prerequisites for marriage
does not undermine the challenged marriage law. See, e.g., Conaway, 932 A.2d at
631-34; Andersen, 138 P.3d at 983 (plurality opinion); Hernandez, 855 N.E.2d at
11-12; Morrison, 821 N.E.2d at 27; Standhardt, 77 P.3d at 462-63; Baker, 191
N.W.2d at 187.
The District Court then reasoned that non-procreative opposite-sex
couplesthat is, couples who cannot naturally procreate or do not ever wish to
naturally procreateare similarly situated to same-sex couples. Aplt.App.681
(Op. at 58). But in most instances, the State does not know whether a man and a
woman are fertile, so treating all man-woman couples as having presumptive
natural procreative capacity is reasonable, particularly when the vast majority of
those couples do in fact produce children.12 Same-sex couples, on the other hand,
12
See Charles J. Rothwell et al., Fertility, Family Planning, and Reproductive

Health of U.S. Women: Data from the 2002 National Survey of Family Growth,
Centers for Disease Control and Prevention (Dec. 2005), available at
http://www.cdc.gov/nchs/data/series/sr_23/sr23_025.pdf (showing on Table 69 that
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are categorically infertile. Therefore, when viewed through the lens of the States
prophylactic purpose for marriage, it cannot be said that these two groups of
couples are similarly situated.
The District Court also claimed that a same-sex couples inability to
naturally procreate is not a biological distinction of critical importance when
considering the States public purpose for marriage. Aplt.App.682 (Op. at 59). But
same-sex couples inability to naturally procreate means that they cannot
unintentionally bring a child into the world. Man-woman relationships, by contrast,
often without forethought produce children as a natural byproduct of their sexual
relationship; indeed, nearly half of all children born in our country are the result of
unintended pregnancies. Finer, supra, at 481 Table 1. This natural procreation
distinction is thus of critical importance, because the risk of abandonment facing
an unplanned child greatly exceeds the corresponding risk to an intended child, see
Morrison, 821 N.E.2d at 25, and because unplanned births out of wedlock, in
particular, are associated with negative outcomes for children. Wildsmith, supra,
at 5.
Finally, the District Courts refusal to follow the Supreme Courts decision
in Johnson v. Robison rests on a faulty analogy. Aplt.App.683-84 (Op. at 60-61).
6,925 of 7,740nearly 90%of married women between the ages of 40 and 44

have given birth).
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The relevant question is not, in the District Courts words, whether the benefit of
marriage is . . . attractive to Plaintiffs. Aplt.App.683 (Op. at 60). The question is
whether affording the benefit of marriage to Plaintiffs will promote the
governmental purpose. Johnson, 415 U.S. at 383. Yet neither in Johnson nor in
this case would including the plaintiff group further the governments interest. In
Johnson, the governments purpose, in part, was to increase the number of draftees
who assume military service. See id. at 382-83. But including the plaintiff class of
conscientious objectors would not have furthered that purpose because their
religious convictions precluded them from assuming military service. See id. And
here, the States purpose for recognizing marriage is to address the unique threats,
while advancing the compelling opportunities, created by the presumptive
procreative potential of sexual relationships between men and women. Yet
Plaintiffs do not implicate those interests. Hence, the District Courts attempt to
distinguish Johnson is unpersuasive.
E.
The Marriage Amendment Satisfies Heightened Scrutiny.
As explained above, the Marriage Amendment is subject only to rationalbasis review, a deferential standard that it plainly satisfies. The District Court,
however, transformed rational-basis analysis into a type of heightened scrutiny
under which the government must demonstrate that redefining marriage would
likely harm, erode, or somehow water-down . . . the marriage institution.
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Aplt.App.681 (Op. at 58). Although this form of heightened scrutiny is not the
appropriate standard, the Marriage Amendment should be upheld even under this
more searching review.
1.
Legally Redefining Marriage as a Genderless Institution

Would Have Real-World Consequences.
Complex social institutions like marriage comprise a set of norms, rules,

patterns, and expectations that powerfully (albeit often unconsciously) affect
peoples choices, actions, and perspectives.13 Marriage in particular is a pervasive
and influential social institution, entailing a complex set of personal values, social
norms, religious customs, and legal constraints that regulate . . . particular intimate
human relation[s]. Allen, Economic Assessment, at 949-50.
Although the law did not create marriage, its recognition and regulation of
that institution has a profound effect on mold[ing] and sustain[ing] it. See Carl E.
Schneider, The Channelling Function in Family Law, 20 Hofstra L. Rev. 495, 503
(1992). Indeed, Windsor acknowledged that the States regulation of domestic
13
See Robert N. Bellah et al., The Good Society 10 (1991) (In its formal
sociological definition, an institution is a pattern of expected action of individuals
or groups enforced by social sanctions, both positive and negative.); Peter L.
Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in
the Sociology of Knowledge 52 (1966) (Institutions . . . , by the very fact of their
existence, control human conduct by setting up predefined patterns of conduct,
which channel it in one direction as against the many other directions that would
theoretically be possible.); A.R. Radcliffe-Browne, Structure and Function in
Primitive Society 10-11 (1952) ([T]he conduct of persons in their interactions
with others is controlled by norms, rules or patterns shaped by social institutions).
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relations has a substantial societal impact . . . in the daily lives and customs of its
people. 133 S. Ct. at 2693.
Plaintiffs ask this Court to use the laws power to redefine the institution of
marriage. That redefinition would transform marriage in the public consciousness
from a gendered to a genderless institutiona conversion that would be swift and
unalterable, the gendered institution having been declared unconstitutional. See
Lewis, 908 A.2d at 222 (To alter [the man-woman] meaning [of marriage] would
render a profound change in the public consciousness of a social institution of
ancient origin.). Scholar and genderless-marriage supporter Joseph Raz has
written about this great . . . transformation in the nature of marriage:
When people demand recognition of gay marriages, they usually mean
to demand access to an existing good. In fact they also ask for the
transformation of that good. For there can be no doubt that the
recognition of gay marriage will effect as great a transformation in the
nature of marriage as that from polygamous to monogamous or from
arranged to unarranged marriage.
Joseph Raz, Ethics in the Public Domain 23 (1994).14
14
Many other genderless-marriage advocates acknowledge that redefining

marriage would change marriage and its public meaning. See, e.g., William N.
Eskridge, Jr. and Darren R. Spedale, Gay Marriage: For Better or for Worse?
What Weve Learned from the Evidence 19 (2006) (enlarging the concept [of
marriage] to embrace same-sex couples would necessarily transform it into
something new); E.J. Graff, Retying the Knot, The Nation, Jun. 24, 1996, at 12
(noting that after marriage is redefined, that venerable institution will ever after
stand for sexual choice, for cutting the link between sex and diapers);
Michelangelo Signorile, Bridal Wave, OUT Magazine, Dec./Jan. 1994, at 161
(urging same-sex couples to demand the right to marry in order to radically
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The newly instated genderless-marriage regime would sever the inherent

link between procreation (a necessarily gendered endeavor) and marriagea link
that for good reason has endured throughout the ages. And that, in turn, would
powerfully convey that marriage exists to advance adult desires rather than serving
childrens needs, and that the State is indifferent to whether children are raised by
their own mother and father. The laws authoritative communication of these
messages to the masses would necessarily transform social norms, views, beliefs,
expectations, and (ultimately) choices about marriage. George, supra, at 40; see
also Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4,
70 (1996) (By communicating certain messages, law may affect social norms.).
In this way, then, redefining marriage would undoubtedly have real-world
ramifications.
To be sure, the process by which such consequences come about would
occur over an extended period of time. Windsor, 133 S. Ct. at 2715 (Alito, J.,
dissenting). But as explained below, those consequences, in the long run, pose a
significant risk of negatively affecting children and society.
alter an archaic institution); Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting)
(citing additional examples).
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2.
Predictive Judgments about the Anticipated Effects of

Redefining Marriage Are Entitled to Substantial Deference.
When reviewing a laws constitutionality even under heightened scrutiny,

courts must accord substantial deference to . . . predictive judgments. Turner
Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (Turner II); see also Grutter,
539 U.S. at 327-28 (concluding that a racial classification was justified by a
compelling state interest because the public universitys judgment that [racial]
diversity [was] essential to its educational mission [was] one to which [the Court]
defer[red]). Sound policymaking often requires [democratic decisionmakers] to
forecast future events and to anticipate the likely impact of [those] events based on
deductions and inferences for which complete empirical support may be
unavailable. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994) (plurality
opinion) (Turner I); see also FCC v. Natl Citizens Comm. for Broad., 436 U.S.
775, 813-14 (1978) (stating that complete factual support in the record for
determinations of a predictive nature is not possible or required). Because
Oklahomans are the individuals who . . . have . . . firsthand knowledge about
marriage and its operation in their State, they may make reasonable judgments
about the [projected] harmful . . . effects of redefining it. City of Erie v. Paps
A.M., 529 U.S. 277, 297-98 (2000) (plurality opinion).
This substantial deference to the States predictive judgments is warranted
for at least three reasons. First, the complexity of marriage as a social institution
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demands deference to projections regarding its future. See Windsor, 133 S. Ct. at
2715 (Alito, J., dissenting) ([T]he process by which such [changes to marriage]
come about is complex, involving the interaction of numerous factors); Smelt v.
Cnty. of Orange, 447 F.3d 673, 681 (9th Cir. 2006) ([I]t is difficult to imagine an
area more fraught with sensitive social policy considerations than the institution
of marriage). Indeed, deference has special significance when the government
makes predictive judgments regarding matters of inherent complexity and
assessments about the likely interaction of [institutions] undergoing rapid . . .
change. Turner II, 520 U.S. at 196; see also Grutter, 539 U.S. at 328 (deferring to
the States complex educational judgments).
Second, respect for the separation of governmental powers also warrants
deference to the States projections concerning the harm to be avoided and . . . the
remedial measures adopted for that end[.] Turner II, 520 U.S. at 196. Affording
such deference appropriately values the Peoples right to decide important question
of social policy for their community.
Third, federalism demands an additional measure of deference because the
regulation of domestic relations, including laws defining . . . marriage, is an
area that has long been regarded as a virtually exclusive province of the States.
Windsor, 133 S. Ct. at 2691 (quotation marks omitted). [T]he Federal
Government, through our history, has deferred to state-law policy decisions with
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respect to domestic relations, including decisions concerning citizens marital

status. Id. Hence, federal courts applying the federal constitution should be
particularly deferential when scrutinizing state laws that define marriage. Cf.
Bruning, 455 F.3d at 867 (discussing rational-basis review).
3.
A Prior Legal Change to a Fundamental Marital Norm

Altered Perceptions about Marriage and Increased Marital
Instability.
The core marital norms throughout Oklahomas history have included sexual
complementarity, see Okla. Const. art. II, 35(A) (defining marriage as the union
of one man and one woman), monogamy, see Okla. Const. art. I, 2 (prohibiting
[p]olygamous or plural marriages), sexual exclusivity, see Okla. Stat. tit. 43,
201 (Husband and wife contract towards each other obligations of . . . fidelity);
Okla. Stat. tit. 43, 101 (identifying adultery as a ground for divorce), and
permanence. See Vincent v. Vincent, 257 P.2d 512, 516 (Okla. 1953) ([I]t is sound
public policy to give the marriage contract all inducements to endurance,
preservation and success.). Once before, the law fundamentally altered one of
these foundational norms: when Oklahoma, like most other States, enacted no-fault
divorce. See Okla. Stat. tit. 43, 101 (including [i]ncompatibility as a ground for
divorce). Legislatures throughout the Nation adopted those laws for laudable
purposes like facilitating the end of dangerous or unhealthy marriages. See Amicus
Br. of Alan J. Hawkins et al. at 10. But although proponents assured their fellow
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citizens that this legal changea step that substantially undermined the marital
norm of permanencewould have no ill effects, history has shown that those
assurances were myopic and misguided.
Looking back now decades later, scholars have observed that no-fault
divorce laws changed social norms and expectations associated with marriage. See
William J. Goode, World Changes in Divorce Patterns 144 (1993) (stating that nofault divorce laws helped to create a set of social understandings as to how easy it
is to become divorced if married life seems irksome). Those legal changes
ushered in the creation of a divorce culture, which has lead to a society with
more . . . individualism[] and less commitment. Allen, Economic Assessment, at
975-76. Those laws, at bottom, created new kinds of families in which
relationships are fragile and often unreliable. Judith S. Wallerstein et al., The
Unexpected Legacy of Divorce: The 25 Year Landmark Study 297 (2000).
Empirical studies have confirmed that these changes in norms and
expectations led to a change in marital behavior. Indeed, studies have shown that
no-fault divorce laws increased divorce rates well above their historical trends. See
Douglas W. Allen and Maggie Gallagher, Does Divorce Law Affect the Divorce
Rate? A Review of Empirical Research, 1995-2006, Institute for Marriage and
Public
Policy
Research
Brief
(Jul.
2007),
available
at
http://
www.marriagedebate.com/pdf/imapp.nofault.divrate.pdf; Allen M. Parkman, Good
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112
Intentions Gone Awry: No-fault Divorce and the American Family 91-93 (2000)
(summarizing available research).
The legacy of no-fault divorce thus bolsters the States concerns that
eradicating another marital normthis time, sexual complementary, the norm that
maintains marriages intrinsic link to procreationwould have negative
ramifications on children and society. Some judges have already recognized that
the analogue of no-fault divorce and similar changes to domestic-relations law
support the present concerns about redefining marriage. See, e.g., Windsor, 133 S.
Ct. at 2715 n.5 (Alito, J., dissenting) (discussing the sharp rise in divorce rates
following the advent of no-fault divorce); Goodridge, 798 N.E.2d at 1003 n.36
(Cordy, J., dissenting) (Concerns about such unintended consequences cannot be
dismissed as fanciful or far-fetched. Legislative actions taken in the 1950s and
1960s in areas as widely arrayed as domestic relations law and welfare legislation
have had significant unintended adverse consequences in subsequent decades
including the dramatic increase in children born out of wedlock, and the
destabilization of the institution of marriage.).
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4.
Redefining Marriage Presents a Substantial Risk of

Negatively Affecting Children and Society.
a)
Genderless Marriage Would Convey That Marriage

Is a Mere Option (Not an Expectation) for
Childbearing and Childrearing, and That Would
Likely Lead to Adverse Consequences for Children
and Society.
Procreation is a necessarily gendered endeavor, and thus transforming

marriage into a genderless institution would cut the intrinsic link between marriage
and procreation. See Witherspoon Institute, supra, at 18 (Aplt.App.510)
([Redefining] marriage would further undercut the idea that procreation is
intrinsically connected to marriage.). Put differently, the gendered-marriage
institution includes a class of couples (man-woman couples) who engage in sexual
conduct of the type that produces children, but redefining marriage would include a
class of couples (same-sex couples) whose sexual conduct is of a type that does not
produce children. Genderless marriage thus would promote the mistaken view
that civil marriage has little to do with procreation[.] Goodridge, 798 N.E.2d at
1002 (Cordy, J., dissenting).
Because genderless marriage would sever the intrinsic link between
marriage and procreation, the social connection between marriage and procreation
would wane over time. As this occurs, the social expectation and pressure for manwoman couples having or raising children to marry would likely decrease further.
See George, supra, at 62 (noting that it might be more socially acceptable . . . for
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unmarried parents to put off firmer public commitments). These developments,

over time, would lodge in the public mind the idea that marriage is merely an
option (rather than a social expectation) for man-woman couples raising children.
That, in turn, would likely result in fewer fathers and mothers marrying each
other, particularly in lower-income communities where the immediate impact of
marriage would be financially disadvantageous to the parents. See Julien O. Teitler
et al, Effects of Welfare Participation on Marriage, 71 J. Marriage & Fam. 878,
878 (2009) (concluding that the negative association between welfare
participation
and
subsequent
marriage
reflects
temporary
economic
disincentives). Without the stability that marriage provides, more man-woman

couples would end their relationships before their children are grown, see
Manning, Stability, at 135, and more children would be raised outside a stable
family unit led by their married mother and father.
The adverse anticipated effects would not be confined to children whose
parents separate. Rather, the costs would run throughout society. Indeed, as fewer
man-woman couples marry and as more of their relationships end prematurely, the
already significant social costs associated with unwed childbearing and divorce
would continue to increase. See Benjamin Scafidi, The Taxpayer Costs of Divorce
and Unwed Childbearing: First-Ever Estimates for the Nation and All Fifty States
5 (2008) (indicating that divorce and unwed childbearing cost[] U.S. taxpayers at
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least $112 billion each and every year, or more than $1 trillion each decade
(emphasis omitted)); see also George, supra, at 45-46 (discussing other studies).
b)
Genderless Marriage Would Undermine the

Importance of Both Fathers and Mothers, and That
Children and Society.
Genderless marriage would remove the States ability to convey that, all
things being equal, it is best for a child to be reared by her own mother and father.
See George, supra, at 58. Instead, it would tell the community that the State is
indifferent to whether children are raised by their mother and father, and that there
is nothing intrinsically valuable about fathers or mothers roles in rearing their
children. See Witherspoon Institute, supra, at 18 (Aplt.App.510) (It would
undermine the idea that children need both a mother and a father); see also Glenn,
supra, at 25 (explaining that one of the clear dangers to marriage in the political
and ideological conflict about same-sex marriage is the denial of the value of
fathers for the socialization, development, and well being of children).
Conveying these messages would likely have an adverse effect on fathers
involvement in the lives of their children. Researchers have already observed that
the culture of fatherhood and the conduct of fathers change from decade to decade
as social and political conditions change. Doherty, supra, at 278 (Aplt.App.469).
This inconstant history of fatherhood has led many scholars to conclude that
fathering is more sensitive than mothering to contextual forces. Id.
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Thus, as the State undermines the importance of fathers, it would likely, over
time, weaken[] the societal norm that men should take responsibility for the
children they beget, Witherspoon Institute, supra, at 18-19 (Aplt.App.510-11),
and soften the social pressures and lower the incentives . . . for husbands to stay
with their wives and children[.] George, supra, at 8; see also Doherty, supra, at
283 (Aplt.App.474) ([O]ptimal father involvement will be forthcoming . . . when
a father . . . receives social support for his parenting[] and is not undermined by . . .
other institutional settings.). In these ways, a genderless-marriage institution
would directly undermine marriages core purpose of encouraging men to commit
to the mothers of their children and jointly raise the children they beget, with the
anticipated outcome that fewer children would be raised by their mother and father
in a stable family unit.
c)
Genderless Marriage Would Entrench an AdultCentered View of Marriage and Likely Lead to
Adverse Consequences for Children and Society.
Genderless Marriage Is Premised on an Adult-Centered View of Marriage.

Genderless marriage would communicate that marriage exists primarily for the
government to approve emotional or romantic bonds, because those sorts of bonds
(not sexual conduct of the type that creates children) would be the predominate
feature shared by the couples who marry. See George, supra, at 55 (Legally
wedded opposite-sex unions would increasingly be defined by what they ha[ve] in
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common with same-sex relationships.). Hence, the law would convey that an
emotional or romantic connection is the defining characteristic of marriage.
In addition, a genderless-marriage regime would tell society that the State
recognizes marriage primarily to serve private (not public) purposes. Indeed,
redefining marriage would morph one of the foremost private purposes for
marriage (emotional union or romantic love) into its accepted public purpose. And
in so doing, genderless marriage would further obscure the overriding public
purpose of marriageconnecting procreation and childrearing for the good of
children.15
Plaintiffs own arguments confirm that redefining marriage would entrench
the adult-centered view of that institution. Plaintiffs claim that marriage, above all,
is the means by which the State recognizes the commitment and permanence of
adult relationships. Aplt.App.072 at 38; Aplt.App.108 at 7. Plaintiffs are not
alone in this; the entire genderless-marriage movement depends on an adultcentric view of marriage that focuses on the rights of adults to make choices.
Institute for American Values, Marriage and the Law: A Statement of Principles
18 (2006), available at http://www.americanvalues.org/search/item.php?id=22; see
also Glenn, supra, at 28 (noting that genderless-marriage advocates argue that any
15
Ironically, by elevating the emotionally based private purposes for marriage,

genderless marriage would convey that the State is concerned with something
whether a citizen has developed a close, romantically loving relationship with
anotherabout which the State manifestly has no interest.
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couple in a loving relationship deserves the rights, protections, and privileges of

marriage). [A]cceptance of the[ir] arguments would produce an understanding
of marriage as being for the benefit of those who enter into it rather than as an
institution for the benefit of society, the community, or any social entity larger than
the couple. Glenn, supra, at 26. In particular, this Courts acceptance of Plaintiffs
arguments would enshrine the adult-centered vision of marriage in our
constitutional jurisprudence and thereby deeply embed it in our law. See Windsor,
133 S. Ct. at 2719 (Alito, J., dissenting).16
The Adult-Centered View Inherent in a Genderless-Marriage Institution
Obscures the Importance of Self-Sacrifice. The child-centered view of marriage
prevails when both law and culture champion marriage as an institution designed
to join a man and a woman together to raise the children born of their union. This
vision of marriage promotes a self-giving and sacrificial ethic among spouses,
encouraging them to subordinate their personal desires to provide for their
childrens needs. See Witherspoon Institute, supra, at 14 (Aplt.App.506)
16
This adult-centered view of marriage, to be sure, has gained traction in some

pockets of our country and some segments of society. See Andrew J. Cherlin, The
Deinstitutionalization of American Marriage, 66 J. Marriage & Fam. 848, 851-53
(2004) (Aplt.App.531-33) (discussing modern developments affecting the
institution of marriage). Yet it does not reign in Oklahoma. And even if that view
has made some inroads, Oklahomans have the right to promote an alternative
understanding of marriage through their laws, public policy, and social systems.
Disconcertingly, however, mandating a genderless-marriage institution as a
constitutional imperative would foreclose the Peoples freedom to do that.
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(discussing the association between this view of marriage and an ethic of

sacrifice); Russell, supra, at 77 (Aplt.App.377) ([A]s soon as children enter in, the
husband and wife, if they have any sense of responsibility or any affection for their
offspring, are compelled to realize that their feelings towards each other are no
longer what is of most importance.).
In contrast, the adult-centered romantic view of marriage inherent in a
genderless-marriage institution rests on a different foundational ethicthat of
pursuing personal happiness, individualism, and romantic love. See Cherlin, supra,
at 853 (Aplt.App.533) ([P]ersonal choice and self-development loom large in
peoples construction of their marital careers.). Although these pursuits are
worthy, their predominance diminishes the importance of spouses making personal
sacrifices for each other and their children. See id. (discussing the decreased
likelihood that spouses will focus on the rewards to be found in fulfilling socially
valued roles such as the good parent or the loyal and supportive spouse).
As genderless marriage emphasizes this marital ethic of pursuing personal
happiness and romantic love at the expense of the marital ethic of self-sacrifice, it
is likely that children would experience increased instability in their home lives.
Because the highest goal under the adult-centered view is achieving deep romantic
love, man-woman couples in acceptable low-conflict (but not perfect) marriages
would likely feel justified in ending their marriages and departing on their own
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respective quests for romance. See George, supra, at 62 (noting that it might be
more socially acceptable for fathers to leave their families). That, however,
would disserve the children involved because, as previously discussed, children
develop best on average when raised by their own mother and father in a stable
family unit. See supra at 50-51.
Available data lends credence to these projections of greater marital
instability under a genderless-marriage regime. Massachusettss divorce rate, for
example, was 22.7% higher in 2011 than it was in 2004the year that State
redefined marriage. See Divorce rates by State: 1990, 1995, and 1999-2011,
Centers for Disease Control and Prevention, available at http://www.cdc.gov/
nchs/data/dvs/divorce_rates_90_95_99-11.pdf. The national divorce rate, in
contrast, was 2.7% lower when comparing those two years. See National Marriage
and Divorce Rate Trends, Centers for Disease Control and Prevention, available at
http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.htm. Of course, it would
be impossible at this point in history to prove that the redefinition of marriage
caused the increase in Massachusettss divorce rate, but the statistics tend to
confirmand certainly do not abatethese concerns about increased marital
instability.
The Adult-Centered View Inherent in a Genderless-Marriage Institution
Decreases Marital Satisfaction and Father Involvement. Paradoxically, although
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the adult-centered vision of marriage emphasizes romantic love and adult

happiness, empirical evidence shows that spouses who embrace this view and its
corresponding ethic are, on average, less satisfied with their marriages and more
likely to experience conflict and divorce. See W. Bradford Wilcox and Jeffrey
Dew, Is Love a Flimsy Foundation? Soulmate versus institutional models of
marriage, 39 Soc. Sci. Research 687, 687 (2010) (concluding that spouses who
embraced a soulmate model of marriage . . . experienced high levels of conflict and
divorce); Wilcox, Marriage Matters I, at 16 (Aplt.App.368) ([I]ndividuals who
embrace a conditional ethic to marriagean ethic based on the idea that marriages
ought to continue only as long as both spouses are happyare less happy in their
marriages.); Witherspoon Institute, supra, at 14 (Aplt.App.506) (similar).
Undermining the quality of marital relationships, in turn, often decreases the
involvement of fathers in the lives of their children. [R]esearch strongly indicates
that substantial barriers exist for most mens fathering outside a caring, committed,
collaborative marriage[,] and that the promotion of these kinds of enduring marital
partnerships may be the most important contribution to responsible fathering in our
society. Doherty, supra, at 290 (Aplt.App.481). The entrenchment of this adultcentered view of marriage, then, not only hinders personal marital satisfaction, but
also creates barriers to fathers participation in raising their children.
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Genderless Marriage Would Undermine Other Stabilizing Marital Norms.

Genderless marriage, as discussed above, would teach that the defining feature of
marriage is romantic love or an emotional bond. But if those (often fleeting)
subjective conditions are the ultimate determinant of marriage, then no logical
grounds reinforce other marital norms like sexual exclusivity, permanence, and
monogamy. See George, supra, at 7, 56. Some people, for example, might
determine that their relationship will be enhanced by sexual openness, that their
emotional attachment runs between and among a few partners at the same time, or
that their marriage is no longer fulfilling because attraction has waned. With love
or emotion as the ultimate guidepost, it seems counterintuitive under this marital
regime to deny oneself any of these steps toward personal fulfillment.
Obscuring the logic of stabilizing norms like sexual exclusivity,
permanence, and monogamy poses at least two concerns for children and society.
First, people tend to abide less by any given norms, the less those norms make
sense. Id. at 67. So as society fails to live in conformity with these norms,
especially permanence and sexual exclusivity, marriages on the whole are likely to
become more unstable, which would adversely affect children. Id.; see also Moore,
supra, at 6 (Aplt.App.384) (Parental divorce is . . . linked to a range of poorer
academic and behavioral outcomes among children.). Second, legal advocates
(supported by the logical implications of genderless marriage) would likely seek
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government recognition of polyamorous relationships,17 arguing that it is arbitrary

and irrational to recognize all loving relationships between couples but not among
three or more people.18 To the extent that those advocates succeed, the State would
be required to promote a home environment with unknown effects on children19
and to resolve the novel questions of legal parentage arising therefrom.
d)
The District Court Inappropriately Discounted These

Arguments.
The District Court rejected the foregoing arguments about the anticipated
adverse consequences of redefining marriage, and characterized those concerns as
17
Polygamy, a social arrangement where one man may marry multiple wives, is
not the concept referred to here. Instead, the reference is to polyamory, a romantic
group relationship involving whatever gender composition the participants find
agreeable. Researchers . . . estimate that openly polyamorous families in the
United States number more than half a million[.] Jessica Bennett, Polyamory: The
Next Sexual Revolution?, Newsweek, Jul. 28, 2009, available at
http://www.newsweek.com/polyamory-next-sexual-revolution-82053.
18
Many same-sex marriage proponents, consistent with the implications of their
arguments, support group marriage. See, e.g., Elizabeth Brake, Minimal Marriage:
What Political Liberalism Implies for Marriage Law, 120 Ethics 302, 303 (2010)
(advocating that individuals should be allowed to have legal marital relationships
with more than one person, reciprocally or asymmetrically, themselves
determining the sex and number of parties, the type of relationship involved, and
which rights and responsibilities to exchange with each); Ellen Willis, Can
Marriage Be Saved? A Forum, The Nation, Jul. 5, 2004, at 16 ([I]f homosexual
marriage is OK, why not group marriage); Judith Stacey, In the Name of the
Family: Rethinking Family Values in the Postmodern Age 127 (1996) (advocating
for small-group marriages).
19
Polyamorous households are likely to produce unfavorable results for children
because, as previously explained, social science has consistently confirmed that, on
average, children develop best when raised by their married mother and father in a
stable family unit. See supra at 50-51. No other childrearing environment has
proven as effective.
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an improper attempt to promote a view of the marriage institution that is

impermissibly tied to moral disapproval of same-sex couples. Aplt.App.687-88
(Op. at 64-65). This charge is baseless. Seeking to sustain a view of marriage that
encourages a man and a woman in a sexual relationship to jointly raise the children
that result from their union is grounded in the enduring public purpose of marriage
and furthers the good of society. It is only by ignoring marriages critical public
purpose and vital social role that the District Court could even attempt to
characterize these social concerns as mere moralizing.
Projecting these negative consequences of redefining marriage, moreover, is
not premised on (as the District Court claimed) a perceived threat that samesex couples pose to the marital institution. Aplt.App.688 (Op. at 65). Rather, it is
redefining marriage in the public consciousness (not same-sex couples themselves)
that would likely, over time, impede the institutions effectiveness in carrying out
its child-centered purposes. George, supra, at 7; see also Glenn, supra, at 25 (The
main stated concern of opponents to same-sex marriage . . . is likely harm to the
institution of marriage. . . . [T]here are clear dangers to marriage in the political
and ideological conflict about same-sex marriage.).
*
The preceding discussion about the anticipated consequences of redefining

marriage focused on the likely effects to children conceived by sex between men
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and women and children born to man-woman couples. From the States
perspective, these are critical considerations, because the overwhelming majority
of children are conceived by sex,20 and society has a compelling interest in
encouraging the men and women who conceive those children to marry each other
and raise their children together.
It remains uncertain what effect redefining marriage would have on children
living with same-sex couples. Although many argue (like the District Court did
below) that genderless marriage would benefit those children, see Aplt.App.685
(Op. at 62), the State has reservations about promoting that childrearing
environment, particularly in light of recent research indicating that children raised
in stable, intact mother-father families generally fare better across a wide range of
outcomes than children whose parents are in same-sex relationships. See Mark
Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex
Relationships? Findings from the New Family Structures Study, 41 Soc. Sci.
Research 752, 763 (2012) (analyzing a large, randomly selected, nationally
representative, diverse sample of 3,000 participants, and concluding that there are
numerous, consistent differences . . . between the children of women who have
had a lesbian relationship and those with still-married (heterosexual) biological
20
See Assisted Reproductive Technology, Centers for Disease Control and

Prevention, http://www.cdc.gov/art/ (last visited Feb. 23, 2014) (stating that
approximately 1% of all infants born in the United States every year are
conceived using ART [assisted reproductive technology]).
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parents in categories such as receipt of public assistance, employment history, and

victimization).21
This is not to say that the State has no interest in children presently being
raised by same-sex couples. It most certainly does, and it provides for them, like all
children, in myriad ways such as through public education and subsidized social
services. But the State cannot responsibly ignore the projected society-wide costs
of embracing a genderless-marriage institution. Rather, the State must (as it has)
balance the potential drawbacks of maintaining the man-woman marriage
institution with the anticipated costs of replacing it with a genderless-marriage
institution. Under that calculus, the State has concluded that any disadvantage
experienced by the small number of children currently living with same-sex
couples,22 while regrettable, does not outweigh the long-term costs that redefining
marriage would likely impose on children as a class and society as a whole. That
21
Some genderless-marriage advocates claim that children raised by same-sex

couples fare just as well as children raised by a married mother and father, but the
studies they rely on, as the Eleventh Circuit recognized, suffer from significant
flaws in [their] methodologies and conclusions, such as the use of small, selfselected samples; reliance on self-report instruments; politically driven hypotheses;
and the use of unrepresentative study populations consisting of disproportionately
affluent, educated parents. Lofton, 358 F.3d at 825; see also Loren D. Marks,
Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the
American Psychological Associations Brief on Lesbian and Gay Parenting, 41
Soc. Sci. Res. 735, 736-38 (2012).
22
Approximately [three] in a thousand children (0.3%) in the [United States] are
living with a same-sex couple. Gary J. Gates, LGBT Parenting in the United
States, The Williams Institute, UCLA School of Law, at 3 (Feb. 2013).
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sovereign decision should be respected and affirmed. The Fourteenth Amendment

does not forbid it.
III.

of Standing.
To demonstrate standing to pursue their claims, Plaintiffs must show (1) that
they have suffered an injury in fact, (2) that a causal connection [exists]
between the injury and the conduct complained of, and (3) that the injury will be
redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). Plaintiffs here fail to satisfy the causation and redressability
requirements of standing, and applying de novo review, see Utah v. Babbitt, 137
F.3d 1193, 1203 (10th Cir. 1998), this Court should dismiss their claims.
Because Plaintiffs below challenged only the Marriage Amendment and not
the marriage statutes, see Aplt.App.626 n.2-3 (Op. at 3 n.2-3), the District Court
permanently enjoin[ed] enforcement of Part A [of the Amendment] against samesex couples seeking a marriage license, but did not prohibit the State from
enforcing the marriage statutes. Aplt.App.690 (Op. at 67). Those statutes thus
remain an independent cause of Plaintiffs asserted injury, and as a result, Plaintiffs
cannot satisfy the causation or redressability element of standing.
Widespread legal authority holds that a court should dismiss a claim for lack
of standing when there is an independent and unchallenged cause of the plaintiffs
injury. In Nichols v. Brown, 945 F. Supp. 2d 1079 (C.D. Cal. 2013), for instance,
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112
the court held that the plaintiff lacked standing to challenge a local ordinance
because an unchallenged state statute similarly caused the plaintiffs asserted
injury. In finding a lack of redressability, the court provided this explanation:
[T]o the extent that Plaintiffs purpose in filing suit is to vindicate his
right to carry a loaded firearm in public, the invalidation of [the local
ordinance] will not redress his injury if [the state law], which prohibits
carrying a loaded firearm on the person or in a vehicle while in any
public place, is permitted to stand.
Id. at 1102.
Similarly, in White v. United States, 601 F.3d 545 (6th Cir. 2010), the Sixth
Circuit concluded that the plaintiffs lacked standing because their alleged injuries
could ultimately be traced to both a challenged federal law and unchallenged state
laws. The plaintiffs, game-fowl sellers and breeders, challenged anti-animalfighting provisions in federal law, but did not raise claims against state laws that
also prohibited animal fighting. This proved fatal to the plaintiffs standing, as both
causation and redressability were lacking. Id. at 552 (concluding that the plaintiffs
asserted injuries were not traceable only to the federal law, and that those
injuries would not be redressed by the relief plaintiffs [sought] since the states
prohibitions on [animal fighting] would remain).
Myriad other courts agree that plaintiffs lack standing when there is an
independent and unchallenged cause of their asserted injury. See, e.g., Maverick
Media Grp., Inc. v. Hillsborough Cnty., Fla., 528 F.3d 817, 820-22 (11th Cir.
87
112
2008) (concluding that a company failed to establish redressability for its challenge
to a sign ordinance because the government could have denied the permit
application under an unchallenged provision of the ordinance); Get Outdoors II,
LLC v. City of San Diego, Cal., 506 F.3d 886, 892-93 (9th Cir. 2007) (similar);
Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 428-30 (4th
Cir. 2007) (similar); Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d
456, 461-63 (6th Cir. 2007) (similar); Advantage Media, L.L.C. v. City of Eden
Prairie, 456 F.3d 793, 801-02 (8th Cir. 2006) (similar); Harp Adver. Ill., Inc. v.
Vill. of Chicago Ridge, Ill., 9 F.3d 1290, 1292 (7th Cir. 1993) (similar).
Plaintiffs chose not to challenge the marriage statutes. Yet those statutes
remain an independent cause of their alleged injury. Consequently, the District
Courts injunction, even if implemented, does not remedy Plaintiffs asserted
injury because it does not enjoin enforcement of the marriage statutes. Plaintiffs
thus lack standing here.
CONCLUSION
For the foregoing reasons, this Court should reverse the District Courts
decision and remand with instructions for the District Court to enter an order
declaring that the Fourteenth Amendment does not forbid Oklahomans from
defining marriage as the union of one man and one woman.
88
112
ORAL ARGUMENT STATEMENT

This Court has set oral argument for April 17, 2014. Given the importance of
the legal issues raised, Smith agrees that oral argument is necessary and will be
beneficial to the Court.
Dated: February 24, 2014

s/ Byron J. Babione
Byron J. Babione
James A. Campbell
(480) 444-0020 (t); (480) 444-0028 (f)
John David Luton
Tulsa, OK 74103
(918) 596-4814 (t); (918) 596-4804 (f)
89
112
CERTIFICATE OF COMPLIANCE
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1.
This brief complies with the type-volume limitation of Federal Rules
of Appellate Procedure 28.1(e)(2)(A) and 32(a)(7)(B), as enlarged by this Courts

order entered February 18, 2014, because it contains 20,736 words, excluding the
parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because it has been prepared in a 14-point
proportionally spaced Times New Roman typeface using Microsoft Word 2007.
s/ Byron J. Babione
Byron J. Babione
90
112

as required by Tenth Circuit Rule 25.5, (2) that the submitted hard copies are an
exact copy of the ECF submission, and (3) that the digital submissions have been
scanned for viruses with the most recent version of a commercial virus scanning
program, Sophos Endpoint Security and Control, Version 10.3, and are free of
viruses according to that program.
s/ Byron J. Babione
Byron J. Babione
91
112
I hereby certify that on February 24, 2014, a true and accurate copy of this
brief and addenda was electronically filed with the Court using the CM/ECF
system, which will send notification of such filing to the following:
Joseph Thai
Attorneys for Plaintiffs
s/ Byron J. Babione
Byron J. Babione
92
112
ADDENDA
1)
District Courts Opinion and Order (Jan. 14, 2014)
2)
District Courts Order Correcting Typographical Errors (Jan. 17, 2014)
93

Document: 01019227293
Page: 1
Case Nos. 14-5003, 14-5006

and
v.
of Oklahoma,
and
Defendant,

REPRESENTATIVES, et al.,
On appeal from the United States District Court for the Northern District of Oklahoma,
Case No. 04-CV-848-TCK-TLW
The Honorable Terence C. Kern
APPELLANTS RESPONSE AND REPLY BRIEF

Byron J. Babione
James A. Campbell
(480) 444-0020 (t); (480) 444-0028 (f)
John David Luton

Tulsa, OK 74103
(918) 596-4814 (t); (918) 596-4804 (f)

Oral Argument Set for April 17, 2014
Exhibit 3

Document: 01019227293
Page: 2
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................4
I.
Baker Forecloses Plaintiffs Claims ................................................................4
II.

Policy Reflected in the Marriage Amendment ................................................6
A.
The Public Purpose of the Gendered-Marriage Institution Is to

Channel the Presumptive Procreative Potential of Man-Woman
Couples into Committed Unions for the Good of Children and
Society ...................................................................................................6
B.
The Marriage Amendment Satisfies Rational-Basis Review..............12
C.
Redefining Marriage Presents a Substantial Risk of Negatively

Affecting Children and Society ...........................................................16
D.
Plaintiffs Have Not Shown that Heightened Scrutiny Applies to

Their Claims ........................................................................................20
1.
Heightened Scrutiny is Not Called for by Romer,

Lawrence, or Windsor ...............................................................20
2.
Neither the Purpose Nor Effect of the Marriage

Amendment Requires Heightened Scrutiny .............................26
3.
Binding Precedent of this Court Establishes that SexualOrientation-Based Equal-Protection Claims Do Not
Apply Heightened Scrutiny.......................................................33
4.

Discriminate on the Basis of Sex, and Thus Heightened
Scrutiny Does Not Apply ..........................................................38
5.
Plaintiffs Claims Do Not Implicate a Fundamental

Right, and Thus Heightened Scrutiny Does Not Apply ...........39

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III.

of Standing for Any of their Claims ..............................................................44
IV.
Plaintiffs Barton and Phillips Cannot Prevail on their Recognition

Claim..............................................................................................................47
A.
Plaintiffs Barton and Phillips Lack Standing to Bring their

Recognition Claim against Smith ........................................................47
B.
Plaintiffs Cannot Invoke State Severability Principles to

Expand the Courts Jurisdiction ..........................................................51
C.
Plaintiffs Barton and Phillipss Recognition Claim Lacks Merit .......52
CONCLUSION ........................................................................................................60
CERTIFICATE OF COMPLIANCE .......................................................................61
CERTIFICATE OF DIGITAL SUBMISSION .......................................................62
CERTIFICATE OF SERVICE ................................................................................63
ii

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TABLE OF AUTHORITIES
Cases
Adoptive Couple v. Baby Girl,
133 S. Ct. 2552 (2013)................................................................................... 14
American Meat Institute v. Pridgeon,
724 F.2d 45 (6th Cir. 1984) ........................................................................... 52
Arthur v. City of Toledo, Ohio,
782 F.2d 565 (6th Cir. 1986) ................................................................... 27-28
Atkeson v. Sovereign Camp, W.O.W.,
216 P. 467 (Okla. 1923)..................................................................... 56, 58-60
Atlantic Refining Co. v. Oklahoma Tax Commission,
360 P.2d 826 (Okla. 1959)....................................................................... 26-27
Baca v. King,
92 F.3d 1031 (10th Cir. 1996) ....................................................................... 49
Baker v. General Motors Corp.,
522 U.S. 222 (1998)....................................................................................... 57
Baker v. Nelson,
409 U.S. 810 (1972)..................................................................................... 4-6
Bishop v. Oklahoma,
447 F. Supp. 2d 1239 (N.D. Okla. 2006) ................................................ 48-49
Bishop v. Oklahoma,
333 F. Appx 361 (10th Cir. 2009) ................................................................ 48
Bowers v. Hardwick,
478 U.S. 186 (1986).................................................................................25, 35
Bronson v. Swensen,
500 F.3d 1099 (10th Cir. 2007) ..................................................................... 47
Christian Legal Society v. Martinez,
130 S. Ct. 2971 (2010)................................................................................... 25
iii

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Citizens for Equal Protection v. Bruning,

455 F.3d 859 (8th Cir. 2006) ..................................................... 6-7, 23, 31, 34
City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985)........................................................................... 33-34, 36
Clarke v. City of Cincinnati,
40 F.3d 807 (6th Cir. 1994) ..................................................................... 27-28
Coffe & Carkener v. Wilhite,
156 P. 169 (Okla. 1916)........................................................................... 56-57
Collins v. Harker Heights,
503 U.S. 115 (1992)....................................................................................... 44
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936 (9th Cir. 2011) ......................................................................... 52
Craig v. Boren,
429 U.S. 190 (1976)....................................................................................... 35
Daimler Chrysler Corp. v. Cuno,
547 U.S. 332 (2006)....................................................................................... 52
DeSantis v. Pacific Telephone & Telegraph Co., Inc.,
608 F.2d 327 (9th Cir. 1979) ......................................................................... 35
District Attorneys Office for Third Judicial District v. Osborne,
557 U.S. 52 (2009)...................................................................................39, 44
FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993)......................................................................................... 9
Fent v. Henry,
257 P.3d 984 (Okla. 2011)............................................................................. 45
Finstuen v. Crutcher,
496 F.3d 1139 (10th Cir. 2007) ......................................................... 26-27, 57
Franchise Tax Board of California v. Hyatt,
538 U.S. 488 (2003)....................................................................................... 57
iv

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Frank v. United States,

129 F.3d 273 (2d Cir. 1997) .......................................................................... 51
Frontiero v. Richardson,
411 U.S. 677 (1973)....................................................................................... 37
Hendrick v. Walters,
865 P.2d 1232 (Okla. 1993)........................................................................... 45
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ................................................................. 24-25, 34
Hilton v. Guyot,
159 U.S. 113 (1895)....................................................................................... 56
Illinois State Board of Elections v. Socialist Workers Party,
440 U.S. 173 (1979)......................................................................................... 5
Jantz v. Muci,
976 F.2d 623 (10th Cir. 1992) ................................................................. 34-35
Johnson v. Robison,
415 U.S. 361 (1974).................................................................................13, 16
Lawrence v. Texas,
539 U.S. 558 (2003)......................................... 20-22, 24-26, 35-36, 39-40, 43
Lewis v. Casey,
518 U.S. 343 (1996)................................................................................. 51-52
Lofton v. Secretary of the Department of Children & Family Services,
358 F.3d 804 (11th Cir. 2004) .................................................................19, 21
Loving v. Virginia,
388 U.S. 1 (1967)................................................................. 2, 6, 12, 38, 40-41
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)....................................................................................... 50
Maher v. Roe,
432 U.S. 464 (1977)....................................................................................... 25

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Mandel v. Bradley,
432 U.S. 173 (1977)......................................................................................... 4
Maynard v. Hill,
125 U.S. 190 (1888)......................................................................................... 6
McDonald v. City of Chicago, Illinois,
130 S. Ct. 3020 (2010)................................................................................... 39
Miller v. Miller,
956 P.2d 887 (Okla. 1998)........................................................................... 7-8
Mudd v. Perry,
235 P. 479 (Okla. 1925)................................................................................... 8
Myatt v. Ponca City Land & Improvement Co.,
78 P. 185 (Okla. 1903)................................................................................... 56
National Gay Task Force v. Board of Education of City of Oklahoma City,
729 F.2d 1270 (10th Cir. 1984) ............................................................... 35-36
New England Health Care Employees Pension Fund v. Woodruff,
512 F.3d 1283 (10th Cir. 2008) ..................................................................... 45
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932)....................................................................................... 54
North v. McMahan,
110 P. 1115 (Okla. 1910)............................................................................... 26
Oregon v. Ice,
555 U.S. 160 (2009)....................................................................................... 53
Pacific Employers Insurance Co. v. Industrial Accident Commission,
306 U.S. 493 (1939)....................................................................................... 57
Palmer v. Thompson,
403 U.S. 217 (1971)....................................................................................... 27
Parham v. J.R.,
442 U.S. 584 (1979)....................................................................................... 20
vi

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Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) ......................................................... 20, 33-37
Printz v. United States,
521 U.S. 898 (1997)....................................................................................... 51
Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron,
Inc.,
123 F.3d 111 (3d Cir. 1997) .......................................................................... 49
Quiban v. Veterans Administration,
928 F.2d 1154 (D.C. Cir. 1991)..................................................................... 37
Reno v. Flores,
507 U.S. 292, 303 (1993) .............................................................................. 40
Rich v. Secretary of the Army,
735 F.2d 1220 (10th Cir. 1984) ............................................................... 35-36
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989)......................................................................................... 4
Romer v. Evans,
517 U.S. 620 (1996).......................................................... 20, 22-24, 26, 35-36
Ross v. Bryant,
217 P. 364 (Okla. 1923)................................................................ 55-56, 58-59
Southern Alameda Spanish Speaking Organization v. City of Union City,
California,
424 F.2d 291 (9th Cir. 1970) ......................................................................... 28
Seegmiller v. LaVerkin City,
528 F.3d 762 (10th Cir. 2008) ........................................................... 20-21, 39
SmithKline Beecham Corp. v. Abbott Laboratories,
740 F.3d 471 (9th Cir. 2014) ......................................................................... 22
Sosna v. Iowa,
419 U.S. 393 (1975)......................................................................................... 3
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Strauss v. Horton,
207 P.3d 48 (Cal. 2009) ........................................................................... 23-24
Tully v. Griffin, Inc.,
429 U.S. 68 (1976)....................................................................................... 4-5
Turner v. Safley,
482 U.S. 78 (1987)......................................................................................... 41
United States v. Carolene Products Co.,
304 U.S. 144 (1938)....................................................................................... 36
United States v. Hays,
515 U.S. 737 (1995)................................................................................. 44-45
United States v. Windsor,
133 S. Ct. 2675 (2013)............................................................................passim
Vance v. Bradley,
440 U.S. 93 (1979)......................................................................................... 14
Walmer v. U.S. Department of Defense,
52 F.3d 851 (10th Cir. 1995) ................................................................... 34-36
Warth v. Seldin,
422 U.S. 490 (1975)....................................................................................... 52
Washington v. Glucksberg,
521 U.S. 702 (1997)........................................................................... 39-41, 44
Wessel v. City of Albuquerque,
463 F.3d 1138 (10th Cir. 2006) ..................................................................... 49
Wilson v. Cook,
100 N.E. 222 (Ill. 1912) ................................................................................. 59
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) .......................................................................... 21
Zablocki v. Redhail,
434 U.S. 374 (1978)...............................................................................2, 6, 12
viii

75
Constitutional Provisions
Oklahoma Constitution Article I, Section 2.......................................................22, 54
United States Constitution Article IV, Section 1 ..................................................... 57
Statutes and Bills
Oklahoma Statute Title 43, Section 5 ...................................................................... 47
Oklahoma Statute Title 43, Section 101 .................................................................... 7
Amicus Briefs supporting Appellant
Amicus Brief of Concerned Women for America (filed in Kitchen v.
Herbert) ...................................................................................................29, 36
Amicus Brief of Center for Constitutional Jurisprudence et al. ............ 42, 44, 54-55
Amicus Brief of Helen M. Alvar .......................................................................6, 11
Amicus Brief of Family Research Council .............................................................. 13
Amicus Brief of Robert P. George et al ....................................................... 15-17, 19
Amicus Brief of Alan J. Hawkins et al .............................................................. 16-19
Amicus Brief of Indiana et al. ........................................................................ 7, 12-13
Amicus Brief of Michigan ...................................................................................7, 12
Amicus Brief of Dr. Paul McHugh Brief ................................................................. 37
Amicus Brief of Scholars of History et al........................................................1, 9, 42
Amicus Brief of Professors of Social Science ................................................... 19-20
Amicus Brief of United States Conference of Catholic Bishops et al. .............. 28-29
Amicus Briefs supporting Appellees
Amicus Brief of Anti-Defamation League et al........................................... 26, 28-29
ix

75
Amicus Brief of Bay Area Lawyers for Individual Freedom et al. ...................18, 53
Amicus Brief of Episcopal Diocese of Utah et al. ................................................... 29
Amicus Brief of Historians of Marriage ............................................................ 17-18
Amicus Brief of OutServe-SLDN et al. ................................................................... 53
Other Authorities
American Psychiatric Association, LGBT-Sexual Orientation, available at
http://psychiatry.org/mental-health/people/lgbt-sexual-orientation (last
visited Apr. 1, 2014) ...................................................................................... 37
Brian Barber, Ban on gay marriage debated, Tulsa World, Oct. 13, 2004 ............. 28
Joel Prentiss Bishop, Commentaries on the Law of Marriage & Divorce (1st
ed. 1852) ............................................................................................ 11, 42-43
Blacks Law Dictionary (8th ed. 2004) ................................................................... 41
William Blackstone, Commentaries ....................................................................8, 20
Ray Carter, Marriage question among most popular on state ballot, Journal
Record, Oct. 12, 2004 .................................................................................... 29
Robert Evatt, Local Pro-Marriage Rally takes aim at same-sex unions,
Aug. 25, 2004 ................................................................................................ 28
John R. Searle, The Construction of Social Reality (1995) ..................................... 15
Restatement (Second) of Conflict of Laws (1971) .................................................. 56
Richard Socarides, Obama and Gay Marriage: One Year Later, The New
Yorker,
May
6,
2013,
available
at
http://
www.newyorker.com/online/blogs/newsdesk/2013/05/obama-andgay-marriage-one-year-later.html ............................................................ 36-37
Irving G. Tragen, Statutory Prohibitions against Interracial Marriage, 32
Cal. L. Rev. 269 (1944) ................................................................................. 42

75
Lynn Wardle and Lincoln C. Oliphant, In Praise of Loving: Reflections on

the Loving Analogy for Same-Sex Marriage, 51 How. L.J. 117
(2007) ............................................................................................................. 42
Noah Webster, An American Dictionary of the English Language (1st ed.
1828) .............................................................................................................. 41
xi

75
INTRODUCTION
Under the gendered view of marriagewhich has prevailed throughout
recorded history in virtually all societies, and has been democratically preserved in
the majority of Statesmarriages principal public purpose is to channel
potentially procreative sexual relationships into stable unions for the sake of
responsibly producing and raising the next generation. That understanding of
marriage has been recognized throughout history by scholars in myriad academic
disciplines, as well as lawmakers and courts that have given legal recognition and
effect to marriage. See Aplt.Br.23-28; Scholars of History Amicus Br. at 4-19
(Scholars of History Br.).
In reaffirming the man-woman marriage institution and its associated
purposes, Oklahomans confirmed the gendered view of marriage in their State,
believing that, in the long run, it will best serve their community and the States
children in particular. The challenged Marriage Amendment simply maintains the
States longstanding practice of distinguishing between couples who further
marriages procreative and child-related purposes and couples who categorically
do not. The rationality of that decision is unimpeachable.
But Plaintiffs and their amici deride the gendered view of marriage and deny
that its enduring purpose is to channel potentially procreative sexual relationships
into stable unions. They seek to replace that well-supported view of marriage with

75
their genderless, adult-centered conception. According to them, marriage exists to

recognize the love, lifelong commitment, and dignity of adult relationships.
Aplee.Br.27, 54. Yet because Plaintiffs view severs the abiding connection
between marriage and the unique procreative potential of male-female
relationships, they cannot explain why the institution is a ubiquitous, cross-cultural
feature of the human experience or why, as the Supreme Court has repeatedly
emphasized, marriage is fundamental to our very existence and survival. Loving
v. Virginia, 388 U.S. 1, 12 (1967); accord Zablocki v. Redhail, 434 U.S. 374, 38384 (1978). Plaintiffs thus have not disproven the gendered views procreative and
child-related objectives, or shown that same-sex couples advance or threaten those
objectives in the same manner, or to the same degree, that man-woman couples do.
As a result, Plaintiffs constitutional challenge must fail.
The Supreme Court recently stressed that the States have essential authority
to define the marital relation, United States v. Windsor, 133 S. Ct. 2675, 2692
(2013), that the power to define marriage is within the province of the States, id.
at 2691, and that the federal government traditionally defer[s] to [such] state-law
policy decisions. Id. Plaintiffs treat as empty rhetoric all these assurances of the
States authority over the definition of marriage, effectively arguing that the
Fourteenth Amendment requires a genderless definition of marriage throughout the
Nation. Yet that constitutional interpretation would contravene the Supreme

75
Courts consistent affirmation of the States absolute right to define marriage for
their communities. Sosna v. Iowa, 419 U.S. 393, 404 (1975); see also Windsor, 133
S. Ct. at 2689-91.
In seeking to federalize a definition of marriage, Plaintiffs gloss over the
important public-policy determinations inherent in the States regulation of
marriage and its definition. These questions require a balancing of factors,
competing interests, and sensitive policy considerations, all of which impact a
bedrock social institution of undeniable real-world importance. For the rational and
compelling reasons explained in the opening brief, Oklahomans and the People in
33 other States sincerely believe that the man-woman marriage institution best
serves their communities. A day may come when they see it differentlyor
perhaps not. But it is certain that a decision turning back Plaintiffs claims would
preserve that freedom for the People. In contrast, a decision striking down the
Marriage Amendment would permanently install a genderless-marriage institution
as federal domestic-relations policy nationwide. In that world, the People could
never recapture the man-woman marriage institution, regardless of what the best
interests of society might dictate. This Court should decline to bring about that
result, and instead should leave these foundational domestic-relations questions
where they belongwith the People.

75
ARGUMENT
I.
Baker Forecloses Plaintiffs Claims.

Plaintiffs, like the District Court, do not deny that the questions raised here
are identical to the questions presented and thus decided in Baker v. Nelson, 409
U.S. 810 (1972). They nonetheless argue that Baker does not control because of
subsequent doctrinal developments. Aplee.Br.29. This argument fails.
Subsequent doctrinal developments do not permit a lower court to ignore
directly-on-point Supreme Court precedent. Contrary to Plaintiffs argument (at p.
29 n.25), this is true regardless of whether the directly-on-point Supreme Court
precedent is a decision rendered after full briefing and argument, see Rodriguez de
Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) ([i]f a precedent of
th[e] Court has direct application in a case, . . . the [lower court] should follow the
case which directly controls), or whether it is a summary disposition. See Tully v.
Griffin, Inc., 429 U.S. 68, 74 (1976) (stating that a summary disposition remains a
controlling precedent, unless and until re-examined by th[e] [Supreme] Court);
Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam) (stating that summary
dispositions prevent lower courts from coming to opposite conclusions on the
precise issues presented and necessarily decided).
Trying to resist this, Plaintiffs inaccurately claim that summary dispositions
have less precedential force over lower courts than do Supreme Court decisions

75
issued after full briefing and argument. Although the Supreme Court has stated that
a summary decision is not here, that is, before the Supreme Court, of the same
precedential value as would be an opinion of th[e] Court, Tully, 429 U.S. at 74
(emphasis added; quotation marks omitted), the Court has not indicated that
directly-on-point summary dispositions are less authoritative over lower courts.
Plaintiffs (at p. 28) attempt to support their argument by quoting Illinois State
Board of Elections v. Socialist Workers Party, 440 U.S. 173, 180-81 (1979), but
that case, which discussed a summary decisions precedential value in the
Supreme Court (not over a lower court), does not advance their cause. Id. at 181
(stating that the Supreme Court itself has not hesitated to discard a rule which a
line of summary affirmances may appear to have established).
Even if this Court were to conclude that lower courts are free to assess
whether doctrinal developments have released them from on-point Supreme Court
precedent, it is not sufficient for the alleged developments to demonstrate merely
that the Supreme Court would now consider the question substantial.
Aplee.Br.30. Instead, the intervening case law must unmistakably show that the
Supreme Court would decide the question differently than it did in its summary
decision. But none of the alleged developments identified by Plaintiffs establishes
that the Supreme Court has overruled Bakers merits ruling on the due-process and

75
equal-protection claims presented here. Aplt.Br.22-23, 28-31. This Court should

thus conclude that Baker forecloses Plaintiffs claims.
II.

Policy Reflected in the Marriage Amendment.
A.
The Public Purpose of the Gendered-Marriage Institution Is to

Channel the Presumptive Procreative Potential of Man-Woman
Couples into Committed Unions for the Good of Children and
Society.
Marriages public purpose of channeling the presumptive procreative

potential of man-woman couples into committed unions for the good of children
and society is well supported by law, history, and the work of scholars in all
relevant fields. Plaintiffs attacks (at pp. 51-55) have clearly not refuted it.
For starters, the Supreme Court has repeatedly recognized that marriage is
fundamental to the very existence and survival of the [human] race. Zablocki,
434 U.S. at 384; accord Loving, 388 U.S. at 12. And it has observed that without
marriage there would be n[o] civilization. Maynard v. Hill, 125 U.S. 190, 211
(1888). These statements, as well as others by the Supreme Court, unquestionably
reflect marriages purpose of serving procreative and childrearing goals. See Helen
M. Alvar Amicus Br. at 11-20 (Alvar Br.) (citations to this brief refer to the
pagination reflected in the briefs ECF header).
In addition, the Eighth Circuit has acknowledged that the expressed intent
of traditional marriage laws is to encourage heterosexual couples to bear and

75
raise children in committed marriage relationships. Citizens for Equal Prot. v.

Bruning, 455 F.3d 859, 868 (8th Cir. 2006). And as that court observed, a host of
judicial decisions have recognized the government interest in steering
procreation into marriage and concluded that laws defining marriage as the
union of one man and one woman and extending a variety of benefits to married
couples are rationally related to that interest. Id. at 867; see also Aplt.Br.58-59
(citing ten additional cases); State of Indiana Amicus Br. at 20-21 (Indiana Br.)
(citing fifteen total cases). Also, the various States that have supported the
Marriage Amendments constitutionality have all confirmed that [c]ivil marriage
recognition arises from the need to protect the only procreative sexual relationship
that exists[.] Indiana Br. at 15-17 (joined by ten States); State of Michigan
Amicus Br. at 7-10 (Michigan Br.) (Marriage is rooted in the unique capacity of
the union of one man and one woman to bear children.); Utah Opening Br. at 5253 (similar) (filed in Kitchen v. Herbert).
Many facets of Oklahoma law discussed in the opening brief, such as the
provision permitting divorce when the wife[,] at the time of her marriage, was
pregnant by another than her husband, Okla. Stat. tit. 43, 101, demonstrate
marriages close connection to procreation. See Aplt.Br.27. Also, the Oklahoma
Supreme Court has acknowledged that a mothers statement about her childs
biological relationship with her putative father goes to the essentials of the marital

75
relationship. Miller v. Miller, 956 P.2d 887, 904 (Okla. 1998). In contrast, that
court
has
recognized
that
statements
about
affection,
love,
and
commitmentPlaintiffs asserted purposes of marriagedo not go to the

essence of the marital relationship. Id. at 903.
The Marriage Amendment, moreover, reaffirms the common-law definition
of marriage that has always governed in Oklahoma, see Mudd v. Perry, 235 P. 479,
syllabus (Okla. 1925), superseded on other grounds as recognized in Copeland v.
Stone, 842 P.2d 754, 757-59 (Okla. 1992), and, accordingly, seeks to further the
common-law purposes of marriage. When discussing the common law, Blackstone
stressed that the great relation[] of husband and wife . . . prescrib[es] the
manner in which th[e] natural impulse to continue and multiple [the] species is
regulated, that the principal end and design of marriage is to create the relation
of parent and child, and that it is by virtue of marriage that infants are protected,
maintained, and educated. 1 William Blackstone, Commentaries *410
(Aplt.App.331). By preserving the common-law definition of marriage,
Oklahomas marriage laws have thus always sought to achieve these laudable
purposes.
Furthermore, because marriage is a social institution that transcends legal
regulation, it is appropriate to look beyond the law when assessing the public
purposes of marriage. See Aplt.Br.64-65. Peering through that lens reveals many

75
eminent anthropologists, sociologists, jurists, philosophers, and historians who

recognize marriages enduring purpose of encouraging the potentially procreative
relationships of men and women to take place in a setting where the children who
may result have the opportunity to know and be reared by [their] mother and
father. Scholars of History Br. at 4-19; see also Aplt.Br.23-28.1
Plaintiffs Have Diminished, Distorted, and Failed to Refute this Public
Purpose of Marriage. Plaintiffs diminish societys procreative and childrearing
interests in marriage by focusing solely on marriages role in providing for
unintended children, Aplee.Br.51, while ignoring marriages vital interests in
encouraging stable homes where children will be raised by their own mother and
father, and encouraging fathers to commit to their childrens mothers and jointly
raise their offspring. See Aplt.Br.16-17, 46-55. Smith discussed all these purposes
in her opening brief. See id. But Plaintiffs overlook them.
Additionally, Plaintiffs distort marriages purpose of steering potentially
procreative relationships into stable unions by suggesting that this purpose depends
on each individuals intent or capability to beget children. Aplee.Br.52. But as
Smith has already explained, societys interest in marriage is not to ensure that all
1
Even if no authority supported this enduring purpose of marriage, it would matter

not to this Courts analysis, for rational-basis review asks whether there is any
conceivable rational basis justifying [a challenged] distinction, FCC v. Beach
Commcns, Inc., 508 U.S. 307, 309 (1993) (emphasis added), and Plaintiffs have
the burden to negative every conceivable basis which might support it. Id. at 315
(quotation marks omitted; emphasis added).
9

75
people who marry will have children. Aplt.Br.59-60. Instead, it is to channel the
presumptive procreative potential of man-woman relationships into enduring
marital unions so that if any children are born, they are more likely to be raised in
stable family units by both their mothers and fathers. Id.
Plaintiffs also confuse the private and public purposes for marriage,
observing that millions of Oklahomans have exchange[d] vows of lifelong
commitment because they have decided to love and to cherish each other.
Aplee.Br.54. Smith, however, has never denied the private purposes of marriage
that couples marry for love, commitment, emotional support, personal fulfillment,
and a variety of other personal reasons. Aplt.Br.23. But because Plaintiffs want the
State to change the laws (public) definition of marriage, the analysis here looks at
the governments purposes for, and societys interest in, marriage as a social
institution.
Plaintiffs then astoundingly declare that the very limited criteria that render
an adult incapable of marrying under Oklahoma law have absolutely nothing to do
with presumptive procreative potential. Aplee.Br.53. Yet the very definition of
marriage in Oklahoma (one man and one woman) confines marriage to the type of
sexual relationships (man-woman relationships) that have presumptive procreative
potential. Moreover, some of Oklahomas other marriage requirements, such as the
constraint that spouses may not be too closely related by blood, directly implicate
10

75
procreative concerns. See Joel Prentiss Bishop, Commentaries on the Law of

Marriage & Divorce 220 (1st ed. 1852) (Aplt.App.310) (noting that marriages
between close blood relatives are frequently disastrous to the interests of the
parties and their enfeebled children (emphasis added)).
Plaintiffs View of and Purpose for Marriage Cannot Withstand their Own
Attacks. Plaintiffs claim that the government purpose of marriage discussed in
Smiths opening brief lacks legal support, see Aplee.Br.51, but truth be told, it is
Plaintiffs asserted purpose of marriage that finds no support in Oklahoma law.
After all, the government does not have any interest in who a person loves, and
thus no statute requires a couple to pledge their love before marrying. Id. at 54.
Nor does Oklahoma law suggest, let alone establish, that the State recognizes and
regulates marriage for the purpose of conferring dignity on couples. Id. at 27.
Furthermore, it is Plaintiffs (not Smith) who have adopted a diminishe[d]
and impoverished view of marriage. Id. at 25, 51. They reduce marriage from an
institution that exists to benefit children and society, and relegate it to a mere
stamp through which the government approves loving, emotional unions between
adult couples. See Aplt.Br.76-77; Alvar Br. at 20-21 (citations to this brief refer to
the pagination reflected in the briefs ECF header).
Plaintiffs, moreover, encounter other difficulties in defending their
genderless view of marriage. Notably, they cannot offer any explanation for why
11

75
the institution is a ubiquitous, cross-cultural feature of the human experience or

why marriage is, as the Supreme Court has repeatedly emphasized, fundamental
to our very existence and survival. Loving, 388 U.S. at 12; accord Zablocki, 434
U.S. at 383-84. What is more, Plaintiffs conception of marriage cannot rationally
resist further alterations to the definition of this vital social institution. See
Aplt.Br.81-82; Indiana Br. at 26-29; Michigan Br. at 19. Plaintiffs have thus failed
to offer a coherent view of marriage and its purposes.
B.
The Marriage Amendment Satisfies Rational-Basis Review.
The Marriage Amendment distinguishes between man-woman couples and

same-sex couples because of an undeniable biological difference between them
namely, the natural capacity to create children. The Marriage Amendment satisfies
rational-basis review because, in light of this biological difference, same-sex
couples neither advance nor threaten societys procreative and child-related
interests in marriage in the same manner, or to the same degree, that sexual
relationships between men and women do. Aplt.Br.55-59.
Seeking to rebut this rational-basis analysis, Plaintiffs mirror the District
Courts error in inverting the rational-basis standard and insisting that Smith must
show that barring same-sex couples from marrying makes opposite-sex couples
more inclined to marry. Aplee.Br.56. Yet Smith and her amici have already
demonstrated at length that this is not the appropriate inquiry under rational-basis
12

75
review. Aplt.Br.55-56; Indiana Br. at 24-26; Family Research Council Amicus Br.
at 20-23.
By insisting on the proper analysis, Smith does not ask this Court to close
[its] eyes to same-sex couples and examine only whether including opposite-sex
couples in marriage furthers the States asserted interests. Aplee.Br.60 n.32.
Rather, this Court must also assess whether including same-sex couples in
marriage would further the States interests in providing stability to the types of
relationships that result in unplanned pregnancies, encouraging the rearing of
children by both their mother and their father, and encouraging men to commit to
the mothers of their children and jointly raise the children they beget. Aplt.Br.55
(citing Johnson v. Robison, 415 U.S. 361, 383 (1974)). Redefining marriage to
include same-sex couples plainly would not further those interests,2 and thus the
Marriage Amendment satisfies rational-basis review.
In the opening brief, Smith has shown that marriage encourages biological
parents to enter committed unions and raise their children together, Aplt.Br.24-28,
Plaintiffs assertion that redefining marriage to includ[e] same-sex couples

would promote the States interests in marriage rests on Plaintiffs recharacterizing the relevant interests at a high level of abstraction (e.g., promoting
a stable family unit for the benefit of children and society) that distorts the
interests Smith has asserted. Aplee.Br.58-59; see also id. at 72 n.36 (claiming
incorrectly that Smith asserts the purpose of promoting legally secure two-parent
households in the interest of children). This is reminiscent of Plaintiffs error in
broadly describing, and thus reshaping, the fundamental right to marry. See infra at
40-41.
13

75
56-57, and that encouraging stable biological homes is a compelling government

interest. Id. at 49-52. In response, Plaintiffs claim that children raised by gay and
lesbian parents are just as likely to be well-adjusted as those raised by heterosexual
parents. Aplee.Br.57. Even if that contested point (discussed below, see infra at
19-20) were true, that does not undermine the research indicating that, on average,
children develop best when raised by their biological mothers and fathers in a
stable family unit. See Aplt.Br.50-51. Nor does it refute the importance of
protecting childrens legal and intangible interest[s] in knowing their biological
parents. Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2582 (2013) (Sotomayor,
J., dissenting); see also Aplt.Br.51-52.
Plaintiffs also argue that the line drawn by the Marriage Amendment is
underinclusiv[e] because it does not bar any other class of Oklahoma couples
based on their lack of procreative potential. Aplee.Br.59. But Plaintiffs do not
dispute that same-sex couples are categorically infertile or that sexual relationships
between a man and a woman presumptively have the natural capacity to (and, in
the vast majority of cases, actually do) produce children. See Aplt.Br.61-62 n.12.
Those undisputed facts alone satisfy rational-basis review because even if a
classification is to some extent both underinclusive and overinclusive, . . . it is
nevertheless the rule that . . . perfection is by no means required. Vance v.
Bradley, 440 U.S. 93, 108 (1979) (quotation marks omitted).
14

75
Nonetheless, Smith has already explained that the Marriage Amendment is

not underinclusive because permitting infertile spouses in man-woman couples to
marry furthers societys interest in responsibly creating and rearing children, and
because government inquiry into the procreative potential or plans of man-woman
couples would impinge upon constitutionally protected privacy rights. Aplt.Br.5962. Also, given that marriage is a social institution, every marriage between a man
and a womanregardless of the participants reproductive intentions, abilities, or
outcomesstrengthens the man-woman marriage institution, expands its social
influence, and enhances the messages it communicates to the public. See John R.
Searle, The Construction of Social Reality 57 (1995) (Cars and shirts wear out as
we use them but constant use renews and strengthens institutions such as
marriage). In contrast, legally redefining marriage would communicate messages
(e.g., that marriage has no intrinsic connection to procreation, that there is nothing
particularly valuable about a child being raised by her own mother and father, and
that an emotional or romantic connection is the defining characteristic of marriage)
that directly undermine the interests that the State seeks to further. See Aplt.Br.7276; Robert P. George Amicus Br. at 28 (George Br.). Hence, the line drawn by
the Marriage Amendment is not just rational, but carefully tailored to the States
compelling purposes.
15

75
Finally,
common
characteristic
shared
by
beneficiaries
and
nonbeneficiaries alike, is not sufficient to invalidate a [law] when other

characteristics peculiar to only one group rationally explain the [laws] different
treatment of the two groups. Johnson, 415 U.S. at 378. Therefore, Plaintiffs
cannot prevail even if there are other purposes for marriage besides steering the
presumptive procreative potential of man-woman couples into committed unions,
and even if same-sex couples are similarly situated to man-woman couples for
some of those purposes.
C.
Redefining Marriage Presents a Substantial Risk of Negatively

Affecting Children and Society.
Plaintiffs, like the District Court, insist that, no matter the standard of
review, the government must demonstrate that excluding same-sex couples furthers
the States purpose for marriage by, for example, preventing adverse consequences
that might accompany marriages redefinition. Aplee.Br.55-63. Even though such a
showing is not required here, Smith and her amici have demonstrated that
redefining marriage presents a substantial risk of negatively affecting children and
society by hindering marriages ability to further the vital procreative and childfocused interests that it has always advanced. See, e.g., Aplt.Br.63-86; George Br.
at 14-24; Alan J. Hawkins Amicus Br. at 16-28 (Hawkins Br.). Rather than
engaging these arguments, Plaintiffs flatly assert, without explanation, that
projecting these adverse consequences is irrational and fantastical.
16

75
Aplee.Br.25, 61-62. But these bald statements do not begin to refute the real
concerns posed by a fundamental redefinition of a bedrock social institution like
marriage.3
The adverse anticipated social consequences would result in large part from
the various messages that the government communicates through a genderlessmarriage regime. Aplt.Br.64-66, 72-82. Those messages include, to name a few,
that procreation is not intrinsically connected to marriage, id. at 72, that there is
nothing particularly valuable about a child being raised by her own mother and
father, id. at 74, and that an emotional or romantic connection is the defining
feature of marriage. Id. at 74-75. It is logical for the State to forecast that the
governments communication of those messages, over time, would bring about
changes in marital norms that contribute to adverse social consequences, such as
decreasing the likelihood that man-woman couples having or raising children will
marry, and increasing the instability of marriages in general. See id. at 72-82;
George Br. at 14-20; Hawkins Br. at 16-28. Underscoring the force of these
arguments, even Plaintiffs own amici admit that marriage, as a complex
Choosing inflammatory rhetoric over reasoned argument, Plaintiffs attack

Smiths observation that a genderless-marriage institution would undermine other
stabilizing marital norms. Aplt.Br.81-82 (capitalization omitted). Plaintiffs claim,
without citation or explanation, that Smiths argument is based on nothing more
than invidious stereotype. Aplee.Br.62. But nothing about anticipating that
adverse future development invokes (let alone rests on) stereotype of any
relationship or individual.
17

75
institution, conveys meanings and consequences to the public, see Historians of

Marriage Amicus Br. at 3, and that marriage plays a critical signaling role that
establishes norms for how . . . married individuals conduct themselves. Bay Area
Lawyers for Individual Freedom Amicus Br. at 8 (Bay Area Lawyers Br.).
Plaintiffs try to divert attention from the issue at hand, arguing that the
adverse projected consequences discussed in the opening brief result not from
redefining marriage, but from other legal changes such as no-fault divorce.
Aplee.Br.62-63. Although no-fault divorce, by undermining the permanence of
marriage, has changed marital norms in a way that has undoubtedly contributed to
a lack of stability in marriages, see Aplt.Br.69-71, redefining marriage would
reshape the very essence of the marital relationa change that would likely bring
about more far-reaching consequences. See id. at 72-82. For example, by
communicating that there is nothing particularly valuable about a child being
raised by her own mother and father, redefining marriage would undermine the
importance of fathersa change that would likely, over time, result in less fathers
marrying their childrens mothers and jointly raising the children they beget. Id. at
74-75; see also Hawkins Br. at 16-28. That no-fault divorce has already
contributed to a breakdown of marriages does not mean that the State must
restructure the marital relation in a manner that is likely to produce additional
adverse effects.
18

75
Plaintiffs continued insistence that same-sex couples parent as well as

opposite-sex couples once again misses the mark. Aplee.Br.57. After all, the most
far-reaching negative consequence of redefining marriage is that a genderlessmarriage regime would communicate messages about marriage that, over time,
would result in fewer man-woman couples marrying when they have or raise
children and fewer man-woman couples remaining married throughout their
childrens upbringing. See Aplt.Br.72-82; George Br. at 14-20; Hawkins Br. at 1628. All this would lead to more broken homes, and as even Plaintiffs admit, a lack
of stability in the relationship between two parents is bad for children.
Aplee.Br.58. Thus, retaining the man-woman marriage institution is sound and
constitutional social policy even if Plaintiffs claims about same-sex parenting are
true.
But it is reasonable to question, as many have, Plaintiffs claims about samesex parenting. See Lofton v. Secy of the Dept of Children & Family Servs., 358
F.3d 804, 825 (11th Cir. 2004); Professors of Social Science Amicus Br. at 2-3
(Professors of Social Science Br.). Indeed, Plaintiffs and their amici bear a heavy
burden here, because longstanding research has shown that the ideal environment
for raising children is a stable biological mother and father. Professors of Social
Science Br. at 3. Therefore, a claim that another parenting structure provides the
same level of benefit should be rigorously tested and based on sound
19

75
methodologies and representative samples. Id. But the studies that Plaintiffs and
their amici rely on exhibit significant analytical shortcomings, such as the use of
small, non-random, non-representative samples. See id. at 12-20. These studies are
thus insufficient to overcome the time-tested research demonstrating that the
optimal childrearing environment is a stable home headed by a childs own mother
and father, see Aplt.Br.50-51, or to displace the centuries-old legal presumption in
favor of natural parents. See, e.g., Parham v. J.R., 442 U.S. 584, 602 (1979); 1
William Blackstone, Commentaries *435 (Aplt.App.334).
D.
Plaintiffs Have Not Shown that Heightened Scrutiny Applies to

Their Claims.
1.
Heightened Scrutiny is Not Called for by Romer, Lawrence,

or Windsor.
Plaintiffs assert that Romer, Lawrence, and Windsor point the way toward
heightened scrutiny for all laws that disparately impact same-sex couples.
Aplee.Br.32. This argument falters at the outset, however, because none of those
cases applied heightened scrutiny. This Court has already recognized that Romer
us[ed] [the] rational basis test, Price-Cornelison v. Brooks, 524 F.3d 1103, 1113
n.9 (10th Cir. 2008), and that Lawrence, a case not decided on equal-protection
grounds, applied rational basis review to the law at issue there. Seegmiller v.
LaVerkin City, 528 F.3d 762, 771 (10th Cir. 2008) (further stating that the Court
20

75
resolved the constitutionality of Texass sodomy law in Lawrence by applying the

rational basis test, rather than heightened scrutiny); Lofton, 358 F.3d at 817.
Nor did Windsor apply heightened scrutiny. The Court there reviewed a
Second Circuit decision that expressly adopted heightened scrutiny. See Windsor v.
United States, 699 F.3d 169, 185 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013). And
the parties defending the Second Circuit decision before the Supreme Court urged
the Court to embrace that standard. See Brief on the Merits for Respondent at 1732, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307); Brief for the
United States on the Merits Question at 18-36, United States v. Windsor, 133 S. Ct.
2675 (2013) (No. 12-307). Yet the Court nowhere stated that it adopted that
standard.
Plaintiffs suggest that Windsor applied heightened scrutiny, rather than
rational-basis review, because the Court did not evaluate the marriage-related
interests that Congress raised in defense of DOMA. Aplee.Br.34-35. But as
Windsor itself recognized, the federal government has no authority . . . on the
subject of marriage. 133 S. Ct. at 2691 (quotation marks omitted). Thus, when
Congress raised those marriage-related interests, they were not legitimate because
they fell outside Congresss authority, and the Court, therefore, did not need to
consider them.
21

75
In addition to the fact that Romer, Lawrence, and Windsor did not apply
heightened scrutiny, Plaintiffs categorical claim that those cases established a new
standard for all laws that disparately impact same-sex couples is unjustified. As
Windsor makes clear, it is [d]iscrimination[] of an unusual character, not any
law that might disparately impact same-sex couples, that require[s] careful
consideration. Id. at 2693. Context matters, and here context confirms that
nothing unusual is afoot, for the Marriage Amendment is not a novel departure
from settled law, but a reaffirmation of it. Aplt.Br.31-32.4
The importance of context, as stressed in Windsor, thus demonstrates that
the categorical rule adopted by the Ninth Circuit in SmithKline Beecham Corp. v.
Abbott Laboratories, 740 F.3d 471, 483 (9th Cir. 2014), is unsupportable. Evincing
that courts own doubts about SmithKline Beechams analysis, on March 27, 2014,
the Ninth Circuit sua sponte called for briefing on whether the case should be
reheard en banc. Order, SmithKline Beecham Corp. v. Abbott Labs., No. 11-17357
(9th Cir. Mar. 27, 2014).
Rather than adopting the categorical rule proposed by Plaintiffs, this Court
should compare this case to the particular facts in Romer, Lawrence, and Windsor,
and conclude that none of those decisions governs here. To begin with, three
It is not unusual for a State to regulate or define marriage in its constitution. In

fact, since Oklahomas inception, its state constitution has established that
[p]olygamous or plural marriages are forever prohibited. Okla. Const. art. I, 2.
22

75
substantial differences separate this case from Romer v. Evans, 517 U.S. 620
(1996), where Colorado through Amendment 2 imposed a [s]weeping and
unprecedented political disability on all individuals identified by a single trait.
Id. at 627, 633.
First, the definition of marriage affirmed here is not unprecedented in our
jurisprudence or alien to our constitutional tradition. Id. at 633. In fact, it is
difficult to think of a legal principle with deeper roots in Oklahomas and our
Nations history, practices, and traditions than marriage as the union of a man and
a womana legal principle that continues to prevail in Oklahoma law and in the
majority of States, most of which have enacted their own constitutional provisions
similar to the Marriage Amendment.
Second, far from imposing a broad and undifferentiated disability on a
single named group or denying that group protection across the board, id. at
632-33, the Marriage Amendments purpose was specific and particularizedto
affirm marriage as a gendered institution. Many courts, including the Eighth
Circuit, have thus rejected attempts to compare a constitutional amendment
affirming man-woman marriage to the sweeping measure struck down in Romer.
See Bruning, 455 F.3d at 868 (rejecting the argument that the Colorado enactment
at issue in Romer is indistinguishable from a constitutional amendment defining
marriage as the union of a man and a woman); Strauss v. Horton, 207 P.3d 48, 102
23

75
(Cal. 2009) (distinguishing a constitutional amendment affirming man-woman

marriage from the Colorado amendments effect of leaving a group vulnerable to
public or private discrimination in all areas without legal recourse).
Third, although Amendment 2 was bereft of any conceivable legitimate state
purpose and thus could be explained only as resulting from a bare . . . desire to
harm a politically unpopular group, Romer, 517 U.S. at 634, the Marriage
Amendment is supported by a number of compelling government interests. See
Aplt.Br.46-55. Moreover, the gendered definition of marriage has prevailed in
virtually all societies throughout human history not because of animus against
same-sex couples, but because marriage is closely connected to societys vital
interests in the uniquely procreative nature of man-woman relationships. See id. at
23-28; Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) ([T]he traditional
definition of marriage is not merely a by-product of historical injustice. Its history
is of a different kind.).
Nor is this case like Lawrence v. Texas, 539 U.S. 558 (2003), where the
State punished as a crime the most private human conduct, sexual behavior, and
in the most private of places, the home, or sought to control a personal
relationship that, whether or not entitled to formal recognition in the law, is within
the liberty of persons to choose without being punished as criminals. Id. at 567.
By reaffirming man-woman marriage, Oklahomans have not interfered with, let
24

75
alone criminalized, any private behavior or personal relationship. Rather, they have
simply reserved a special form of recognition and support to those relationships
that uniquely further vital social interests. The States right to do just that is
directly supported by the Supreme Courts repeated acknowledgement that [t]here
is a basic difference between direct state interference with a protected activity and
state encouragement of an alternative activity. Maher v. Roe, 432 U.S. 464, 475
(1977); see also Christian Legal Socy v. Martinez, 130 S. Ct. 2971, 2989 n.17
(2010) (emphasizing the distinction between state prohibition and state support).
As New Yorks highest court explained in a case similar to this one,
Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against
state intrusion on intimate, private activity. They seek from the courts access to a
state-conferred benefit that the Legislature has rationally limited to opposite-sex
couples. Hernandez, 855 N.E.2d at 10. Thus, contrary to Plaintiffs assertion,
Smith has not repeat[ed] the Bowers v. Hardwick failure to appreciate the extent
of the liberty at stake, Aplee.Br.26 (quoting Lawrence, 539 U.S. at 567), because
the interest implicated here (official government recognition of relationships) is
vastly different than the interest at stake in Bowers and Lawrence (criminal
punishment of private conduct and relationships).
25

75
Finally, as established in Smiths opening brief, this case is not comparable

to Windsor. Aplt.Br.28-32. Thus, Romer, Lawrence, and Windsor, when read
together or in isolation, do not control here.
2.
Neither the Purpose Nor Effect of the

Amendment Requires Heightened Scrutiny.
Marriage
Plaintiffs argue that this Court should apply heightened scrutiny because
moral disapproval of same-sex marriage was the justification for the Marriage
Amendment. Aplee.Br.46. Plaintiffs and their amici support this audacious claim
with a few articles referencing a handful of comments by three of the 130
legislators who approved the Amendment. See id. at 46-47; Anti-Defamation
League Amicus Br. at 10-12 (Anti-Defamation League Br.); see also
Aplt.App.264-67 (indicating that 130 legislators voted for the Marriage
Amendment). But their attempts to establish this bold charge have failed.
As an initial matter, reliance on isolated public statements from individual
supporters is improper under Supreme Court precedent, a point that Smith
established in the opening brief. Aplt.Br.33-35. Rather than responding to those
arguments, Plaintiffs cite three cases that they believe justify a court in consulting
such statements: Finstuen v. Crutcher, 496 F.3d 1139, 1148 n.6 (10th Cir. 2007);
Atlantic Refining Co. v. Oklahoma Tax Commission, 360 P.2d 826, 827 (Okla.
1959); and North v. McMahan, 110 P. 1115, 1115 (Okla. 1910). See Aplee.Br.47
n.28. But although those cases considered the general history of the time, Atl.
26

75
Ref. Co., 360 P.2d at 827, and a press release issued by the entire legislative body,
see Finstuen, 496 F.3d at 1148 n.6, none of them cited isolated statements by
individual legislators or supporters.
Furthermore, invoking a handful of individual statements in the public
domain as a basis for invalidating a voter-approved constitutional provision would
be utterly unworkable. It is indeed absurd to suggest that a few articles quoting
three legislators establish the motives of more than 130 legislators and a million
voters. Additionally, adopting such analysis would incongruously permit courts to
uphold the marriage law of one State while striking down an identically worded
law in another State simply because the tenor of the public debate varied between
the jurisdictions. Cf. Palmer v. Thompson, 403 U.S. 217, 225 (1971) (If the law is
struck down for this reason [because of supporters motives] . . . , it would
presumably be valid as soon as the . . . relevant governing body repassed it for
different reasons.); see also Indiana Br. at 13. Such analysis does not form the
basis of sound jurisprudence.5
More fundamentally, attempting to discern the motivations for a voter-enacted

measure using sources other than the laws plain language and objective effect is
futile. Multiple circuits, when analyzing equal-protection claims, have discussed
the difficulty and impropriety of attempting to decipher what motivated the citizens
who approved a voter-enacted law. The Sixth Circuit, for example, stated that one
of the reasons it has limit[ed] a courts examination of the factors motivating the
electorate in a referendum election is the difficulty of ascertaining what
motivated the [voters]. Clarke v. City of Cincinnati, 40 F.3d 807, 815 (6th Cir.
1994) (quoting Arthur v. City of Toledo, Ohio, 782 F.2d 565, 573-75 (6th Cir.
27

75
In any event, none of the statements cited by the District Court, Plaintiffs, or
their amici evince animus. In fact, State Senator James Williamson, the primary
target of Plaintiffs and the District Courts accusations, repeatedly disclaimed any
animus against gays and lesbians. See Brian Barber, Ban on gay marriage debated,
Tulsa World, Oct. 13, 2004 (Aplt.App.158) (This is not meant to be an attack on
the gay community . . . . This is meant to protect traditional marriage as the
foundation of our society.); Robert Evatt, Local Pro-Marriage Rally takes aim
at same-sex unions, Aug. 25, 2004 (Aplt.App.160) (As Christians, we are called
to love homosexuals.).6 And many of the large religious organizations that
support the man-woman marriage institution have attested that their views and
beliefs about marriage are rooted not in animus, but in concern for the welfare of
children and society. See United States Conference of Catholic Bishops Amicus
Br. at 5-20. Even putting aside the issue of animus, Plaintiffs are wrong to suggest
1986)). Similarly, the Ninth Circuit observed that divining the true motive of the
voters on a topic that implicates many environmental and social values would
require a probing of the private attitudes of the voters, which would entail an
intolerable invasion of . . . privacy. S. Alameda Spanish Speaking Org. v. City of
Union City, Cal., 424 F.2d 291, 295 (9th Cir. 1970).
6
Plaintiffs and their amici misleadingly portray some of the materials that they
reference. For instance, they discuss a pro-marriage rally organized by over 40
churches, implying that the primary impetus for the event was to promote the
Marriage Amendment. Aplee.Br.46; Anti-Defamation League Br. at 11. Yet the
focus of the rally, as reflected by the topic that the keynote speaker addressed, was
not the Marriage Amendment, but practical faith-based ways of building better
marriages. Evatt, supra, at 1 (Aplt.App.160).
28

75
that a law is constitutionally suspect for the sole reason that a few of its supporters
expressed religious or moral views during public discussions preceding the laws
enactment. See id. at 29-35.
Plaintiffs, in the end, have failed in their attempt to portray the Marriage
Amendment as little more than a religiously inspired law. Tellingly, a poll of
Oklahoma voters conducted less than a month before the 2004 election showed
that the Marriage Amendment was favored by those who dont attend religious
services by a 51 percent to 48 percent margin. Ray Carter, Marriage question
among most popular on state ballot, Journal Record, Oct. 12, 2004 (emphasis
added). And even among voters who regularly attend religious services, many of
them avidly support redefining marriage, as Plaintiffs amici attest. See Episcopal
Diocese of Utah Amicus Br. at 1-7, 17-24 ([I]t would be a mistake to elevate any
one view on marriage above all others as the Christian or religious view.);
Anti-Defamation League Br. at 18-20 (observing that a significant number of
religious groups and individuals support redefining marriage); see also Concerned
Women for America Amicus Br. at 31-33 (Concerned Women for America Br.)
(filed in Kitchen v. Herbert in support of the government officials defending the
challenged marriage laws).
Seeking once more to analogize this case to Windsor, Plaintiffs argue that
the Marriage Amendments title (the Marriage Protection Act) suggests an
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75
improper motive. Aplee.Br.47-48. But yet again, this attempted parallel overlooks
a critical distinction between DOMA and the Marriage Amendment. In Windsor,
the federal government, which lacks authority . . . on the subject of marriage,
Windsor, 133 S. Ct. at 2691 (quotation marks omitted), had no legitimate interest
in defending the man-woman marriage institution preserved throughout the
majority of States. In contrast, here, the State of Oklahoma, which has essential
authority to define the marital relation, id. at 2692, furthers legitimate and
compelling interests when it protects the institution of marriage from a
fundamental redefinition that risks adverse social consequences. Thus, while the
title of DOMA disclosed an improper motive in Windsor, no such parallel can be
drawn here. If anything, the Marriage Amendments title underscores the States
institutional concerns about marriage and its redefinition.
Unable to tar the Peoples motives, Plaintiffs resort to mischaracterizing
Smiths arguments, claiming that Smith has reduced the purpose of the Marriage
Amendment to the merely procedural goal of preventing state-court judges from
redefining marriage. Aplee.Br.48-49. But Smith has already explained that the
Marriage Amendment achieves multiple purposes. First, the Amendments
immediate purpose, as reflected in its plain language and determined by its
objective effect, is to ensure that the state judiciary cannot change the definition of
marriage that has always existed in Oklahoma law. Aplt.Br.33. Second, by
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75
preserving the status quo, the Amendment affirms the man-woman marriage
institutions longstanding public purpose of channeling the presumptive
procreative potential of man-woman relationships into committed unions for the
benefit of children and society. Id. Third, [t]he interests that the State furthers
through this channeling function are at least threefold: (1) providing stability to the
types of relationships that result in unplanned pregnancies and thereby avoiding or
diminishing the negative outcomes often associated with unintended children; (2)
encouraging the rearing of children by both their mother and their father; and (3)
encouraging men to commit to the mothers of their children and jointly raise the
children they beget. Id. at 46-47. Because the Marriage Amendment furthers all
these legitimate and compelling ends, it easily satisfies constitutional review. See
Bruning, 455 F.3d at 867-69 (concluding that the reinforcing effect of a state
constitutional provision that elevates the States definition of marriage from its
statutes to its constitution satisfies rational-basis review).
Turning from the purpose to the effect of the Marriage Amendment,
Plaintiffs contend that the Amendments effect is impermissible. Aplee.Br.44-45.
But Plaintiffs attempt to mirror Windsors discussion of DOMAs effects is
unavailing. Windsor, after all, confined its equal-protection analysis and its
holding to the federal governments treatment of couples who are joined in
same-sex marriages made lawful by the State. 133 S. Ct. at 2695-96. Windsor thus
31

75
consistently tied its discussion of DOMAs effects to the unusual circumstance that
the federal government interfered with a status that New York bestowed on samesex couples. See id. at 2696 ([DOMA] refus[ed] to acknowledge a status the State
finds to be dignified and proper); id. ([DOMAs] purpose and effect [is] to
disparage and to injure those whom the State, by its marriage laws, sought to
protect). Here, however, the State of Oklahoma has not reached into another State
and affected the marital status of its citizens. It has merely retained the manwoman marriage institution within its borders.
Additionally, DOMAs effect on same-sex couples was entirely gratuitous
and unwarranted because it resulted from the federal governments meddling with
a topic, the definition of marriage, over which it had no authority. See id. at 2691.
Here, in contrast, the Marriage Amendments effect on same-sex couples is the
incidental result of the States exercising its essential authority to maintain the
man-woman marriage institution and thereby preserve marriages efficacy in
accomplishing the procreative and child-related interests it has always served. In
other words, while the federal government had no legitimate interest in enacting
DOMA, the State (as demonstrated) has legitimate and compelling reasons for
affirming the man-woman marriage institution.
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75
3.
Binding Precedent of this Court Establishes that SexualOrientation-Based Equal-Protection Claims Do Not Apply
Heightened Scrutiny.
This Court has already held that sexual-orientation-based equal-protection

claims are subject to rational-basis review. Price-Cornelison, 524 F.3d at 1113-14
& n.9. Plaintiffs, however, argue that this Courts precedents do not . . . limit
review of sexual orientation discrimination to rational basis. Aplee.Br.36
(capitalization omitted). Yet their admitted attempt to change long-established law
in this Circuit (see id. at 41 (admitting that this Court has yet to apply heightened
scrutiny to sexual-orientation-based equal-protection claims)) is unpersuasive.
As an initial matter, this Court need not even consider the proper standard of
review to apply to sexual-orientation-based equal-protection claims. Unlike laws
that explicitly classify individuals based on sexual orientation, the Marriage
Amendment implicates sexual orientation only to the extent that it distinguishes
between same-sex couples and opposite-sex couples7a distinction that reflects
biological realities closely related to societys enduring interest in marriage. See
Aplt.Br.23-28. To resolve this case, then, this Court need hold only that, in the
context of marriage laws, the biologically based, plainly relevant distinction
between same-sex couples and opposite-sex couples calls for nothing more than
rational-basis review. See id. at 44-45 (discussing City of Cleburne v. Cleburne
7
Plaintiffs admit that the line drawn by the Marriage Amendment is certainly
couple-based. Aplee.Br.32 (quotation marks omitted).
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75
Living Ctr., Inc., 473 U.S. 432, 441-42 (1985), and Hernandez, 855 N.E.2d at 11);
Bruning, 455 F.3d at 866-67 ([R]ational-basis review applies where individuals
in the group affected by a law have distinguishing characteristics relevant to
interests the State has the authority to implement (quoting Cleburne, 473 U.S. at
441)).
Nonetheless, binding case law in this Circuit forecloses heightened scrutiny
of sexual-orientation-based equal-protection claims. In Price-Cornelison, for
example, this Court held that the plaintiffs sexual-orientation-based equalprotection claim did not implicate a protected class, which would warrant
heightened scrutiny, and thus that [a] government official can . . . distinguish
between its citizens on the basis of sexual orientation, if that classification bears a
rational relation to some legitimate end. 524 F.3d at 1113-14 (footnote and
quotation marks omitted).
Plaintiffs suggest that the Court should ignore Price-Cornelison because that
decision misread this Courts precedent. Aplee.Br.23; see also id. at 37-38. Yet
Price-Cornelison did not misread, but faithfully applied, this Courts repeated
conclusion that classifications based on sexual orientation are subject to rationalbasis review. See, e.g., Walmer v. U.S. Dept of Def., 52 F.3d 851, 854 (10th Cir.
1995) (citing Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992), for the holding
that classifications which disparately affect homosexuals require rational basis
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75
review).8 In addition, Price-Cornelison did not rely solely on this Courts case
law; rather, it expressly invoked widespread authority, including Romer and case
law from nine other circuits, to support its decision to apply rational-basis review.
See Price-Cornelison, 524 F.3d at 1113 n.9.
In urging this Court to ignore its precedent, Plaintiffs raise two other
unpersuasive observations. First, they assert that after 1984 (the year that this
Court decided Rich and National Gay Task Force v. Board of Education of City of
Oklahoma City, 729 F.2d 1270, 1273 (10th Cir. 1984)) the Supreme Court
subsequently
determined
that
gender
classifications
are
quasi-suspect.
Aplee.Br.38. But as Plaintiffs own brief later recognizes, the Supreme Court made
this determination in 1976 (not after 1984). Id. (citing Craig v. Boren, 429 U.S.
190, 197 (1976)). Second, Plaintiffs discuss the impact of Lawrences overruling
of Bowers. Aplee.Br.38. But Price-Cornelison was decided five years after
Lawrence, and it cited four other circuit-court decisions decided after Lawrence.
See Price-Cornelison, 524 F.3d at 1113 n.9. Additionally, this Circuits preLawrence case law establishing the appropriate standard of review for sexualorientation-based equal-protection claims did not rely on Bowers. See, e.g.,
See also Rich v. Secy of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984) (holding
that [a] classification based on ones choice of sexual partners is not suspect, and
citing as support DeSantis v. Pac. Tel. & Tel. Co., Inc., 608 F.2d 327, 333 (9th Cir.
1979), which observed that courts have not designated homosexuals a suspect or
quasi-suspect classification).
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75
Walmer, 52 F.3d at 854; Rich, 735 F.2d at 1229; National Gay Task Force, 729
F.2d at 1273.9
Although this standard-of-review question is already foreclosed, if this Court
were to reconsider its past case law on this issue, it should reaffirm that sexual
orientation is not a suspect or quasi-suspect classification. A significant factor in
that analysis is whether the political processes ordinarily to be relied upon to
protect the group seeking a suspect or quasi-suspect designation has been
curtail[ed]. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4
(1938). In assessing that factor, the relevant question is whether the class at issue is
politically powerless in the sense that [its members] have no ability to attract the
attention of the lawmakers. Cleburne, 473 U.S. at 445. Here, however, it cannot
be seriously questioned that gays and lesbians possess abundant political power
and undoubtedly attract lawmakers attention. See Concerned Women for America
Br. at 6-35 (filed in Kitchen v. Herbert). To cite just one relevant example, in 2012,
the citizens in three StatesMaine, Maryland, and Washingtonredefined
marriage through a direct vote of a majority of the electorate. See Richard
9
Plaintiffs also claim that Price-Cornelison has been supersed[ed] by Romer,

Lawrence, and Windsor. Aplee.Br.24; see also id. at 36-37. But Price-Cornelison
post-dated Romer and Lawrence, and expressly relied on Romer to support its
holding that rational basis is the proper standard of review. See Price-Cornelison,
524 F.3d at 1113 n.9. Moreover, as explained above, Windsors contextual
approach, with its focus on unusual[ness], does not reverse Price-Cornelisons
pronouncement on the appropriate standard of review for sexual-orientation-based
equal-protection claims. See supra at 22.
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75
Socarides, Obama and Gay Marriage: One Year Later, The New Yorker, May 6,
2013, available at http://www.newyorker.com/online/blogs/newsdesk/2013/05/
obama-and-gay-marriage-one-year-later.html.
Plaintiffs, moreover, are also unable to establish the immutability
requirement. Under Supreme Court case law, an immutable characteristic is one
determined solely by the accident of birth. Frontiero v. Richardson, 411 U.S.
677, 686 (1973); see also Quiban v. Veterans Admin., 928 F.2d 1154, 1160 n.13
(D.C. Cir. 1991) (Ginsburg, J.). Yet according to the American Psychiatric
Association, there are no replicated scientific studies supporting any specific
biological etiology for homosexuality. American Psychiatric Association, LGBTSexual
Orientation,
http://psychiatry.org/mental-health/people/lgbt-sexual-
orientation (last visited Apr. 1, 2014); see also Dr. Paul McHugh Amicus Br. at 1527 (McHugh Br.). Furthermore, sexual orientation is a complex and amorphous
phenomenon that defies consistent definition, and thus it is not a distinguishing
characteristic of a discrete group. See McHugh Br. at 3-14.
It is thus no wonder that nearly every circuit that has addressed this question,
including this Court, has held that sexual orientation is not a suspect or quasisuspect classification. See Price-Cornelison, 524 F.3d at 1113 n.9 (citing cases
from ten circuits). This nearly uniform circuit consensus is consistent with the
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75
Supreme Courts recent decision in Windsor not to adopt the Second Circuits
conclusion that sexual orientation is a quasi-suspect classification.
4.

Discriminate on the Basis of Sex, and Thus Heightened
Scrutiny Does Not Apply.
The District Court correctly concluded that the Marriage Amendment does
not impermissibly discriminate on the basis of sex because it does not draw any
distinctions between same-sex male couples and same-sex female couples, does
not place any disproportionate burdens on men and women, and does not draw
upon stereotypes applicable only to male or female couples. Aplt.App.672 (Op. at
49). On appeal, Plaintiffs contest this conclusion, arguing that the Amendment
unconstitutionally discriminates on the basis of sex. Aplee.Br.41-43. Plaintiffs
primarily rely on Loving, a race-discrimination case, to advance their claim of
unlawful sex discrimination. Id. at 42-43. But as Smith explained in the opening
brief (a point that Plaintiffs do not attempt to refute), race and sex are not treated
the same under equal-protection analysis. See Aplt.Br.42-43. Loving thus does not
advance Plaintiffs sex-discrimination argument.
Plaintiffs, at bottom, have not satisfied the threshold inquiry for their sexdiscrimination claim because they have not shown that the Marriage Amendment
subjects men or women as a class to disparate treatment, or that the Amendment
purposefully discriminates against men or women. See id. at 41-42. Hence, the
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75
intermediate-scrutiny standard that governs sex-discrimination claims does not

apply here.
5.
Plaintiffs Claims Do Not Implicate a Fundamental Right,

and Thus Heightened Scrutiny Does Not Apply.
The fundamental right to marrythat is, the right to enter the relationship of
husband and wifeis not at issue in this case. Instead, Plaintiffs, in asserting a
constitutional right to marry a person of the same sex, seek a new right that lacks
any support in the history and tradition of our Nation.
Relying on Lawrence, Plaintiffs disclaim the preeminence of history in
fundamental-rights analysis. Aplee.Br.65. But the Supreme Court in cases decided
after Lawrence continues to ask whether an asserted right is deeply rooted in this
Nations history and tradition when assessing whether it is fundamental to our
scheme of ordered liberty. McDonald v. City of Chicago, Ill., 130 S. Ct. 3020,
3036 (2010) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)); see
also Dist. Attorneys Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 72
(2009) (rejecting an asserted substantive-due-process right because there was no
long history of such a right). This Court too continues to apply that historyfocused analysis. See Seegmiller, 528 F.3d at 769-70 (decided in 2008).
Given the centrality of history in this analysis, Plaintiffs Windsorcompelled admission that the possibility of same-sex couples marrying had not
occurred to many until recently dooms their fundamental-rights argument.
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75
Aplee.Br.65 (quoting Windsor, 133 S. Ct. at 2689). Indeed, Plaintiffs premise their
fundamental-rights claim on the fact that some in society now believe that
marriage should be redefined to include same-sex couples. Aplee.Br.65 (discussing
the new insight of some about the definition of marriage (quoting Windsor, 133
S. Ct. at 2689)). But novel ideas and modern legal experiments do not create or
otherwise form the basis of a fundamental constitutional right. See Reno v. Flores,
507 U.S. 292, 303 (1993) (The mere novelty of such a claim is reason enough to
doubt that substantive due process sustains it).
Continuing with their emphasis on Lawrence, Plaintiffs boldly assert that
Lawrence removed any doubt that the deeply rooted fundamental right to marry
includes the right to marry a person of the same sex. Aplee.Br.66-67. But
Lawrence expressly stated that it did not involve, and thus did not decide,
whether the government must give formal recognition to any relationship that
homosexual persons seek to enter. 539 U.S. at 578. That disclaimer thus refutes
Plaintiffs far-reaching claims about Lawrence.
Refusing to accept that the carefully described right raised by Plaintiffs is
the right to marry a person of the same sex, see Glucksberg, 521 U.S. at 721,
Plaintiffs argue that the Supreme Court has not specifically characterized the
fundamental right to marry to account for the particularized circumstances of its
prior cases (by, for example, speaking of a right to interracial marriage in Loving
40

75
or a right to inmate marriage in Turner v. Safley, 482 U.S. 78 (1987)).

Aplee.Br.66. But this argument ignores that the right to marry recognized by the
Supreme Court, like all fundamental rights affirmed by that Court, is a right with
objective meaning and contours. Indeed, the only recognized definition of marriage
from the founding of our county until a decade ago was the union of a man and a
woman. See, e.g., Noah Webster, An American Dictionary of the English Language
(1st ed. 1828) (Aplt.App.338) (defining marriage as the union of a man and
woman); Blacks Law Dictionary 992 (8th ed. 2004) (defining marriage as [t]he
legal union of a couple as husband and wife). Because all of the Supreme Courts
fundamental-right-to-marry
cases
involved
unions
that
fell
within
that
unquestioned definition, the Court never before needed to describe the right as
anything other than the right to marry. Plaintiffs here, however, seek not to partake
in, but to redefine, that deeply rooted constitutional right. This Court should thus
reject Plaintiffs attempt to circumvent Glucksbergs careful-description command
by offering a repackaged version of the fundamental right to marry. It is not
enough to dress a new right in the garb of an old one.
Plaintiffs also suggest that Lovings invalidation of miscegenation laws
supports their fundamental-rights argument. See Aplee.Br.66 (citing a brief that
compares this case to cases addressing bans on interracial marriage). But the
history of man-woman marriage differs dramatically from the history of
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75
miscegenation laws. Indeed, the man-woman definition of marriage, which is

rooted in the common law, universally prevailed in our country until a decade ago.
In contrast, miscegenation laws were never universal; they were unknown at
common law, in six of the 13 colonies, and in many other States. See Irving G.
Tragen, Statutory Prohibitions against Interracial Marriage, 32 Cal. L. Rev. 269,
269 & n.2 (1944) ([A]t common law there was no ban on interracial marriage.);
Lynn Wardle and Lincoln C. Oliphant, In Praise of Loving: Reflections on the
Loving Analogy for Same-Sex Marriage, 51 How. L.J. 117, 180-81 (2007)
(providing a state-by-state description of miscegenation laws); see also Scholars of
History Br. at 19-21; Center for Constitutional Jurisprudence Amicus Br. at 27-28
(Center for Constitutional Jurisprudence Br.).
Moreover, the man-woman core of marriage has historically been its
defining characteristic, while racial restrictions were never understood to be
definitional. See supra at 41 (citing dictionaries). As stated by a leading treatise
author on the law of marriage writing close to the time of the Fourteenth
Amendments enactment, [m]arriage between two persons of one sex could have
no validity, as none of the ends of matrimony could be accomplished thereby. It
has always, therefore, been deemed requisite to the entire validity of every
marriage . . . that the parties should be of different sex. Bishop, supra, at 225
(Aplt.App.313) (emphasis added). That author, by contrast, acknowledged that
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75
racial restrictions were never a defining feature of marriage; they were

impediments, which [were] known only in particular countries[] or States. Id. at
213.
Furthermore, while the man-woman definition of marriage is inescapably
connected to the institutions central purpose of steering potentially procreative
relationships into committed unions, miscegenation laws were at war with that
purposes. By prohibiting interracial marriages, those laws decreased the likelihood
that children of mixed-race couples would be born to and raised by their mother
and father in stable and enduring family units. It is thus not surprising that the
Supreme Court in Loving held that those laws violated the fundamental right to
marry.
Because man-woman marriage laws and miscegenation laws are worlds
apart, Windsors unremarkable observation that [s]tate laws defining and
regulating marriage . . . must respect the constitutional rights of persons, 133 S.
Ct. 2691, followed by a citation to Loving, is not (as Plaintiffs and the District
Court assert) a disclaimer of enormous proportion. Aplee.Br.63 (quoting
Aplt.App.660 (Op. at 37)). Rather, the citation to a readily distinguishable case like
Loving underscores that Oklahoma has not contravened any of the constitutional
rights that constrain the States broad authority to regulate marriage.
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75
In short, Plaintiffs effort to expand the Supreme Courts fundamental-rights

jurisprudence is unsustainable. Their argument flies directly in the face of the
Courts consistent reluctan[ce] to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this unchartered area are
scarce and open-ended. Osborne, 557 U.S. at 72 (quoting Collins v. Harker
Heights, 503 U.S. 115, 125 (1992)); see generally Center for Constitutional
Jurisprudence Br. at 5-30. This Court should thus hold that Plaintiffs claims do not
implicate a fundamental right and thereby permit the People to shap[e] the destiny
of their own times concerning the definition of marriage. Windsor, 133 S. Ct. at
2692 (quotation marks omitted); see also Glucksberg, 521 U.S. at 720 (noting that
the improvident expansion of substantive due process to a great extent, place[s]
the matter outside the arena of public debate and legislative action).
III.

of Standing for Any of their Claims.
Plaintiffs decision to challenge only the Marriage Amendment and not the
marriage statutesa decision in marked contrast to virtually all other plaintiffs

pressing these claims nationwidehas left them unable to satisfy the causation or
redresssability requirements of standing. Aplt.Br.86-88.10 The arguments raised in
Plaintiffs brief have not remedied their standing deficiencies.
10
The question of standing is not subject to waiver because all federal courts
have an independent obligation to address that issue. United States v. Hays, 515
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75
Relying on Fent v. Henry, 257 P.3d 984 (Okla. 2011), Plaintiffs claim that
the Marriage Amendment has subsumed the marriage statutes and rendered them
nugatory. Aplee.Br.76. But Fent expressly established the oppositethat repeals
by implication are never favored, that it is not presumed that the legislature, in
the enactment of a subsequent statute intended to repeal an earlier one, unless it has
done so in express terms, and that all provisions must be given effect unless
irreconcilable conflicts exist. 257 P.3d at 991. Here, of course, nothing suggests
that the Marriage Amendment was intended to revise or repeal the marriage
statutes; it confirms, rather than conflicts with, those statutes. Thus, under
Oklahoma law, the unchallenged marriage statutes have not been displaced or
otherwise erased from the code.11
Plaintiffs assertion that statutes die in the books the moment their
analogues have been declared invalid overlooks, rather than answers, the standing
question raised here. Aplee.Br.77. Because, as Smith has demonstrated, Plaintiffs
U.S. 737, 742 (1995); see also New England Health Care Employees Pension
Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir. 2008) ([A]ny party, including
the court sua sponte, can raise the issue of standing for the first time at any stage of
the litigation, including on appeal).
11
Plaintiffs citation to Hendrick v. Walters, 865 P.2d 1232, 1240 (Okla. 1993), is
similarly unavailing. Aplee.Br.76. Hendrick involved a clear intent to abrogate
by constitutional amendment an earlier statutory law prescribing a particular oath
for public officials. 865 P.2d at 1241. But no such intent to repeal the marriage
statutes appears here.
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75
lack standing, they are not entitled to a judicial declaration on the Marriage
Amendments constitutionality. The predicate for Plaintiffs argument (a judicial
declaration on the Marriage Amendments constitutionality) thus assumes the
answer to the very standing question presented here. Moreover, Plaintiffs legal
theories, which focus on the motivations of lawmakers, undermine their
assumption that the statutes would necessarily fall if the constitutional provision
does. See id. at 44-49. If this Court adopts that motives-based analysis (which, as
explained above, it should not), it stands to reason that the motivations of the
legislators who enacted Oklahomas first marriage laws more than a century ago,
see Aplt.Br.5, might pass constitutional muster, notwithstanding the Courts
resolution of the pending challenge to the Marriage Amendment.
Also meritless is Plaintiffs claim that they have standing because an
injunction against the Marriage Amendments enforcement would remedy the
injury of shutting the state courthouse doors on Plaintiffs. Aplee.Br.78. First, the
Marriage Amendment did not close state courts to Plaintiffs; they are free to bring
their claims in state court at any time. Second, Plaintiffs have not alleged in their
complaint or in any other filing that the injury they seek to vindicate is a lack of
access to state courts. Rather, they have consistently sought to obtain a marriage
license or recognition of an out-of-state marriage license. Aplt.App.041-42. For all
these reasons, Plaintiffs have not established standing to pursue their claims.
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75
IV.
Plaintiffs Barton and Phillips Cannot Prevail on their Recognition

Claim.
A.
Plaintiffs Barton and Phillips Lack Standing to Bring their

Recognition Claim against Smith.
The District Court appropriately concluded that Plaintiffs Barton and

Phillips lack standing to bring their recognition claimthat is, their challenge to
Part B of the Marriage Amendment (the recognition provision)against Smith.
Aplt.App.651 (Op. at 28). The causation requirement of standing is not satisfied
where Plaintiffs fail to show that their injury is fairly traceable to the challenged
action of the defendant[.] Bronson v. Swensen, 500 F.3d 1099, 1109 (10th Cir.
2007) (quotation marks omitted). Similarly, [t]he redressability prong is not met
when a plaintiff seeks relief against a defendant with no power to enforce a
challenged statute. Id. at 1111. Plaintiffs Barton and Phillips cannot satisfy the
causation or redressability requirements here, because although Smith issues and
records marriage licenses in Oklahoma, she has no authority to recognize or
record a marriage license issued by another state[.] Aplt.App.650 (Op. at 27)
(quoting Smiths Affidavit at 5 (Aplt.App.248)); see also Okla. Stat. tit. 43, 5
(listing the duties of the clerk without mentioning any authority to recognize outof-state marriages). Tellingly, Plaintiffs own actions, as alleged in their complaint,
show that they understood this: while Plaintiffs Bishop and Baldwin sought the
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75
issuance of a marriage license from Smith, Plaintiffs Barton and Phillips never
asked Smith to recognize their California marriage license. Aplt.App.036.
Plaintiffs do not cite any Oklahoma law indicating that Smith recognizes
out-of-state marriages as part of her official duties. Instead, they rely only on an
ambiguous clause from this Courts prior decision in this case stating that
recognition of marriage is within the administration of the judiciary.
Aplee.Br.74 (quoting Bishop v. Oklahoma, 333 F. Appx 361, 365 (10th Cir. 2009)
(unpublished)). But as the District Court observed below, the statutes cited in
[that decision] do not reference court clerks authority to recognize an out-ofstate marriage. Aplt.App.650 (Op. at 27). That opinion thus does not provide
support for Plaintiffs baseless claim that Oklahoma law authorizes Smith to
recognize out-of-state marriages.
Barton and Phillips nevertheless argue that this Courts prior decision
established, as law of the case, that they must bring their recognition claim against
Smith. Aplee.Br.72-73. But this Court did not even consider the standing question
presented herenamely, whether Smith is the appropriate defendant for Barton
and Phillipss claim that Oklahoma must recognize their California marriage
license. Before the first appeal in this case, the District Court held that Barton and
Phillips lacked standing to challenge Part B based on their Vermont civil union and
their Canadian marriage certificate. Bishop v. Oklahoma, 447 F. Supp. 2d 1239,
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75
1256 (N.D. Okla. 2006). Plaintiffs did not appeal that decision. It was only
following remand after the first appeal that Barton and Phillips amended their
complaint to include a reference to their California marriage license. Aplt.App.036
12. And even later still (over two years following remand) was the first time that
those Plaintiffs indicated at a scheduling conference that they intended to challenge
Part B based on their California marriage license. Aplt.App.044. This Courts prior
decision thus did not addresslet alone establish as law of the casethat Smith is
the proper defendant for Barton and Phillipss claim that Oklahoma must recognize
their California marriage license.
In addition to this gaping hole in Plaintiffs law-of-the-case argument, there
are two other reasons why the law-of-the-case doctrine does not apply here. First,
that doctrine is not a fixed rule that prevents a federal court from determining the
question of its own subject matter jurisdiction in a given case. Baca v. King, 92
F.3d 1031, 1035 (10th Cir. 1996). In other words, the constitutional concerns
implicated by the issue of standing . . . trump the prudential goals of the law-ofthe-case doctrine. Pub. Interest Research Grp. of N.J., Inc. v. Magnesium Elektron,
Inc., 123 F.3d 111, 118 (3d Cir. 1997). Second, the law-of-the-case doctrine does
not apply when the [prior] decision was clearly erroneous. Wessel v. City of
Albuquerque, 463 F.3d 1138, 1143 (10th Cir. 2006). Thus, if this Court were to
construe its prior decision as Plaintiffs suggest, that opinion would be clearly
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erroneous because Smith plainly has no authority to recognize out-of-state

marriages.
Barton and Phillips fault Smith for not identify[ing] any other official . . .
who should have been sued instead of her. Aplee.Br.74 n.37. Yet it is Plaintiffs
who bear[] the burden of establishing standing, Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992), and thus it is their job to determine the proper official to
sue when raising their recognition claim. Furthermore, the appropriate defendant
for Barton and Phillipss recognition claim depends, in part, on the purpose for
which they seek recognition of their California marriage license.12
Plaintiffs also attempt to create a factual conflict where none exists. They
assert that Smiths answer, wherein she affirmed that she is responsible for the
enforcement of the laws challenged by Plaintiffs First Amended Complaint,
conflicts with the statement in her affidavit declaring that she does not have
authority to recognize out-of-state marriage licenses. Aplee.Br.75. But Plaintiffs
amended complaint, as the District Court acknowledged, lacked any language
address[ing] Part B of the Marriage Amendment, Aplt.App.044; thus, Smiths
statement that she enforces the laws challenged in the amended complaint did not
refer to Part B. It was only because all [p]arties agree[d] that plaintiffs motion for
12
For example, if Plaintiffs Barton and Phillips want to file a joint tax return with
the State, then the state official in charge of that process would be an appropriate
defendant.
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summary judgment w[ould] address Part B . . . , notwithstanding the absence of

such language in the Amended Complaint[,] id., that Plaintiffs were able to
challenge Part B without amend[ing] [the] complaint again. Id. Therefore, no
conflict exists between the allegations in Smiths answer and the statements in her
affidavit.
B.
Plaintiffs Cannot Invoke State Severability Principles to Expand

the Courts Jurisdiction.
Plaintiffs invoke state severability doctrine in a thinly veiled attempt to fix

Barton and Phillipss lack of standing. Aplee.Br.78-80. In particular, Plaintiffs
argue that this Court should strike down the Marriage Amendment in its entirety
because Part A (the definitional provision) is not severable from Part B (the
recognition provision). Id. But regardless of whether Plaintiffs Bishop and Baldwin
have standing to challenge Part A (an issue disputed above, see supra at 44-46),
Plaintiffs Barton and Phillips cannot use state severability doctrine to invalidate a
portion of the Marriage Amendment that they lack standing to challenge. See, e.g.,
Printz v. United States, 521 U.S. 898, 935 (1997) (declining to address severability
question because the plaintiffs before the Court did not have standing to challenge
the potentially severable provisions); Frank v. United States, 129 F.3d 273, 275-76
(2d Cir. 1997) (same).
Nor can Barton and Phillips derive standing to challenge Part B from the
alleged standing of Bishop and Baldwin to challenge Part A. Standing is not
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75
dispensed in gross. Lewis v. Casey, 518 U.S. 343, 358 n. 6 (1996). Plaintiffs
cannot rest [their] claim to relief on the legal rights or interests of [others]. Warth
v. Seldin, 422 U.S. 490, 499 (1975). They must demonstrate standing for each
claim [they] seek[] to press. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006). They, however, have failed to do that here.
In addition to these jurisdictional constraints, this Court should decline to
address Plaintiffs severability argument because they did not raise that issue
below and thus have waived it. See, e.g., Comite de Jornaleros de Redondo Beach
v. City of Redondo Beach, 657 F.3d 936, 951 n.10 (9th Cir. 2011) (en banc)
(concluding that a party waived an argument regarding severability of an
unconstitutional ordinance); Am. Meat Inst. v. Pridgeon, 724 F.2d 45, 47 (6th Cir.
1984) (concluding that a party waived its argument on severability of a state
statute declared unconstitutional because the party brought the issue before the
District Court in . . . an untimely fashion).
C.
Plaintiffs Barton and Phillipss Recognition Claim Lacks Merit.
Trying once more to draw a parallel between this case and Windsor,
Plaintiffs Barton and Phillips assert that, like DOMA, the Marriage Amendment
violates the Constitution by declining to treat as married same-sex couples who
have received a marriage license from another State. Aplee.Br.26-27, 69. But this
attempted comparison yet again glosses over a critical distinction between Windsor
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75
and this case: the government actor that declined to recognize a marriage in
Windsor (the federal government) had no authority . . . on the subject of
marriage, 133 S. Ct. at 2691 (quotation marks omitted), and had always
accept[ed] state definitions of marriage, id. at 2693; by contrast, the government
actor that declines to recognize an out-of-state union here (the State of Oklahoma)
has essential authority to define the marital relation within its borders. Id. at
2692. Thus, this Court should conclude that when declining to recognize a
marriage license issued by another State, the State of Oklahoma (a sovereign entity
with unquestioned authority over marriage) can surely do what the federal
government cannot. Aplee.Br.68 (quotation marks omitted).13
The staggering implications of Barton and Phillipss recognition claim
starkly illustrate its foundational flaws. That constitutional theory, if credited,
would effectively require Oklahoma to conform its marriage policy to the varying
marriage policies enacted in other States. That, in turn, would terminate States
ability to serve as laboratories that independently experiment with domesticrelations (and other social) policy. See Oregon v. Ice, 555 U.S. 160, 171 (2009);
13
Barton and Phillips claim that the Marriage Amendment is worse than DOMA
because it makes them unmarried to each other. Aplee.Br.69. Yet as Plaintiffs
own amici illustrate, the federal government will still recognize Barton and
Phillipss California marriage license and treat them as married for myriad federal
purposes because their union was legal where it was celebrated. OutServe-SLDN
Amicus Br. at 6; see also Bay Area Lawyers Br. at 18 n.7 (listing 12 federal
agencies that recognize marriages between same-sex couples).
53

75
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting); see also Center for Constitutional Jurisprudence Br. at 11-13. Rather
than fostering the States freedom to experiment with different approaches to
difficult social questions, Plaintiffs theory would empower one laboratory to
commandeer the others, essentially nationalizing the marriage policy of the most
inventive State. Thus, for example, if one State were to legalize plural or
polyamorous marriages, Oklahoma (like all other States) would be forced to
recognize those unions, notwithstanding its state constitutional prohibition on
plural marriages. Okla. Const. art. I, 2. Yet the heart of Windsor condemns
such a nationalization of marriage policy. See Aplt.Br.28-31.
Barton and Phillipss constitutional theory, moreover, would require all
States to replace the man-woman marriage institution with a genderless variety.
After all, forcing a State to recognize out-of-state marriages that conflict with its
core definition would de facto disable that State from maintaining its chosen
marital definition. Even Plaintiffs admit that the Marriage Amendments
definitional provision by itself would not completely achieve the Amendments
purpose of preserving the man-woman marriage institution in Oklahoma.
Aplee.Br.79-80.
Ironically, the recognition claim pressed here would place States that have
redefined marriage in the marriage-meddling role played by the federal
54

75
government in Windsor, coercing them to mirror Congresss error of interfering

with the marriage policy of various States. Yet Windsor counsels against one
government dictating the marriage policy of another. Cf. 133 S. Ct. at 2693
(denouncing the federal governments influence [over] a states decision as to
how to shape its own marriage laws (quotation marks omitted)). Rather, Windsor
supports allowing each State to establish its own definition of marriage. See, e.g.,
id. at 2692 (affirming the right of New Yorkers to define marriage for themselves).
Ignoring these indefensible implications, Plaintiffs Barton and Phillips argue
that the Marriage Amendment violates equal-protection principles because, they
claim, it is unusual for the State to decline to recognize marriages licenses issued
by another State. Aplee.Br.70 (arguing that Oklahoma law recognizes virtually
all out-of-state marriages). But the premise of this argumentthat it is unusual for
the State to decline to recognize marriages solemnized elsewhereis simply not
true.14
Every sovereign state, including Oklahoma, may determine the status of
those having their domicile within its territory. Ross v. Bryant, 217 P. 364, 365
14
Barton and Phillips also argue that Loving supports their recognition claim
because the State of Virginia refused to recognize the marriage that the Loving
couple entered in the District of Columbia. Aplee.Br.69-70. But unlike this case,
Loving involved the deeply rooted fundamental right to marry and invoked the core
purpose of the Fourteenth Amendment (eliminating racial discrimination). See
Center for Constitutional Jurisprudence Br. at 15. Thus, as explained above, Loving
does not advance Plaintiffs claims. See supra at 41-43. That conclusion applies
equally to Barton and Phillipss recognition claim.
55

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(Okla. 1923). In making those determinations, Oklahoma (like other States)

undoubtedly . . . has the power to declare that marriages between its own citizens
contrary to its established public policy shall have no validity in its [borders], even
though they be celebrated in other states, under whose laws they would ordinarily
be valid. Atkeson v. Sovereign Camp, W.O.W., 216 P. 467, 470 (Okla. 1923),
superseded by statute on other grounds as recognized in Plummer v. Davis, 36
P.2d 938, 941 (Okla. 1934); see also Restatement (Second) of Conflict of Laws
283(2) (1971) (stating that even if a marriage satisfies the requirements of the
state where the marriage was contracted, that marriage will not be recognized as
valid if it violates the strong public policy of another state which had the most
significant relationship to the spouses and the marriage at the time of the
marriage).
These marriage-recognition principles are firmly rooted in the law of comity.
Comity is the courtesy by which [States] recognize within their own territory, or
in their own courts, the peculiar institutions of another. Myatt v. Ponca City Land
& Improvement Co., 78 P. 185, 188 (Okla. 1903); see also Hilton v. Guyot, 159
U.S. 113, 164 (1895) (comity determines the recognition which one [sovereign]
allows within its territory to the legislative, executive or judicial acts of another).
Like other States, Oklahoma does not extend comity when doing so would be
contrary to its known policy. Myatt, 78 P. at 188; see also Coffe & Carkener v.
56

75
Wilhite, 156 P. 169, 172 (Okla. 1916) (stating that Oklahoma will not recognize a
contract if it contravenes the States public policy).
Federal full-faith-and-credit principles, see U.S. Const. art. IV, 1, which
Plaintiffs have not raised here, dictate the same analysis when assessing marriagerecognition issues. In applying the Full Faith and Credit Clause, the Supreme
Court has drawn a distinction between statutes and judgments. Finstuen, 496 F.3d
at 1152 (citing Baker v. Gen. Motors Corp., 522 U.S. 222, 232-33 (1998)). Here,
marriage licenses issued by other States are not judgments, but rather reflect the
operation of another States marriage statutes. Yet [t]he Full Faith and Credit
Clause does not compel a state to substitute the statutes of other states for its own
statutes dealing with a subject matter concerning which it is competent to
legislate. Baker, 522 U.S. at 232 (quoting Pac. Employers Ins. Co. v. Indus.
Accident Commn, 306 U.S. 493, 501 (1939)). Instead, a State may decline to
recognize anothers statutes if affording such recognition would violate [that
States] own legitimate public policy. Franchise Tax Bd. of Cal. v. Hyatt, 538
U.S. 488, 497 (2003).15
15
Plaintiffs (at p. 72 and n.36) seek support from this Courts decision in Finstuen,
which resolved a full-faith-and-credit question concerning a foreign adoption
judgment. 496 F.3d at 1151-52. But Plaintiffs have not raised any full-faith-andcredit claims here, and even if they had, Finstuen itself observed the drastic
difference between full-faith-and-credit analysis of other States judgments (at
issue there) and other States statutes (at issue here). Id. at 1152 (citing Baker, 522
U.S. at 232-33). Finstuen thus does not advance Plaintiffs legal position.
57

75
Oklahoma marriage-recognition principles, in particular, demonstrate that

there is nothing unusual about the States decision not to recognize Plaintiffs
Barton and Phillipss out-of-state marriage license. [T]he law of the domicile of
the parties governs the status of marriage in Oklahoma. Ross, 217 P. at 365.
[T]he state of the domicile of the parties intending to enter into the marriage
relation has the exclusive right to prescribe all terms, conditions, and limitations
which are binding upon the parties, although the law of the jurisdiction in which
the marriage contract was entered into may have permitted the marriage within its
borders. Id. at 366.
Thus, for nearly 100 years, the Oklahoma Supreme Court has held that
individuals domiciled within its borders cannot travel to another State, enter a
marriage that could not be formed in Oklahoma, and demand recognition of their
out-of-state union upon returning:
If a man and woman, citizens of the same state, and subject to an
absolute statutory prohibition against entering into a marriage . . . ,
leave their domicile and enter another state, where a marriage between
them is not prohibited, and there marry for the purpose of evading the
law of their domicile, such marriage is void in the state having the
prohibition. Persons domiciled in one state, where marriage between
them is absolutely prohibited, cannot evade its laws and policy by
going to another state, and there marrying, and then returning to the
home state to reside. Such marriage is void in the latter state.
Id. at 365-66 (quotation marks omitted); see also Atkeson, 216 P. at 469 (stating
that when a State has enacted a law imposing upon its citizens an incapacity to
58

75
contract marriage by reason of a positive policy of the state . . . , a marriage

contracted in disregard of the prohibition of the statute, wherever celebrated, will
be void (quoting Wilson v. Cook, 100 N.E. 222, 223 (Ill. 1912))). A State needs
this authority to decline to recognize these sorts of evasive marriages in order to
ensure that its citizens cannot nullify or render essentially useless the States
marriage laws. See Atkeson, 216 P. at 470.
Oklahoma thus has not acted unusually in declining to recognize Barton and
Phillipss California marriage license. Indeed, that decision falls squarely within
the States longstanding refusal to recognize foreign legal unions entered by its
domiciliaries for the purpose of evading Oklahoma law. Barton and Phillips, who
have now lived in Oklahoma for over fifty years, admittedly traveled to
California, married under that states laws, and returned to their home state of
Oklahoma. Aplee.Br.7-8. But Oklahoma has never recognized such legal unions
formed in other States. Regardless of whether the out-of-state union was formed by
a same-sex couple or an opposite-sex couple, if the Oklahoma couple traveled to
another State to evade Oklahoma law, the State has consistently declined to
recognize such unions. See, e.g., Ross, 217 P. at 366 (invalidating an out-of-state
marriage of a minor that fell within the express inhibitions of the law of the state
of Oklahoma); Atkeson, 216 P. at 470 (declining to recognize a marriage of a
recent divorcee who made a temporary visit to the state of Texas while under
59

75
the restrictions imposed [on recent divorcees] by the laws of [Oklahoma]). Hence,
Oklahomas decision not to recognize Barton and Phillipss California marriage
license is neither unprecedented nor unusual. Plaintiffs recognition claim thus
lacks merit.
CONCLUSION
For the foregoing reasons, this Court should reverse the District Courts
decision.
Dated: April 1, 2014
s/ Byron J. Babione
Byron J. Babione
James A. Campbell
(480) 444-0020 (t); (480) 444-0028 (f)
John David Luton
Tulsa, OK 74103
(918) 596-4814 (t); (918) 596-4804 (f)
60

75
CERTIFICATE OF COMPLIANCE
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1.
This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 28.1(e)(2)(A) because it contains 13,881 words, excluding the

parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because it has been prepared in a 14-point
proportionally spaced Times New Roman typeface using Microsoft Word 2007.
Date: April 1, 2014
s/ Byron J. Babione
Byron J. Babione
61

75

as required by Tenth Circuit Rule 25.5, (2) that the submitted hard copies are an
exact copy of the ECF submission, and (3) that the digital submissions have been
scanned for viruses with the most recent version of a commercial virus scanning
program, Sophos Endpoint Security and Control, Version 10.3, and are free of
viruses according to that program.
Date: April 1, 2014
s/ Byron J. Babione
Byron J. Babione
62

75
I hereby certify that on April 1, 2014, a true and accurate copy of this brief
was electronically filed with the Court using the CM/ECF system, which will send
notification of such filing to the following:
Joseph Thai
Attorneys for Plaintiffs
Date: April 1, 2014
s/ Byron J. Babione
Byron J. Babione
63

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Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

PLAINTIFFS REPLY BRIEF IN SUPPORT OF MOTION FOR

Joseph T. Thai, OBA No. 19377

January 21, 2015

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 2 of 13

Defendants response and supporting affidavits are contradicted by the

constitutional principles and controlling Supreme Court precedents compelled

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 3 of 13

understanding of the novelty and complexity of the issues as well as sound

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 4 of 13

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 5 of 13

Finally, and most critically, Defendants

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 6 of 13

attacks on the reasonableness of Plaintiffs requested attorneys fees. Plaintiffs now

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 7 of 13

Reply Br. 1-7, 10-16.8 Those entries therefore are compensable.9

Response to Certiorari Petition. Defendants contention that

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 8 of 13

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 9 of 13

drafting amicus briefs in support of Plaintiffs position. Br. in Opp. at 7 (emphasis

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 10 of 13

opportunities on appeal.18 Cf. Awad v. Ziriax, No. CIV-10-1186-M, 2014 WL

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 11 of 13

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 12 of 13

Case 4:04-cv-00848-TCK-TLW Document 304 Filed in USDC ND/OK on 01/21/15 Page 13 of 13

Case 4:04-cv-00848-TCK-TLW Document 304-1 Filed in USDC ND/OK on 01/21/15 Page 1 of 6

Date Filed: 02/14/2014

Case Nos. 14-5003, 14-5006

-------------------------------BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF

APPELLANT SALLY HOWE SMITHS UNOPPOSED MOTION

Case 4:04-cv-00848-TCK-TLW Document 304-1 Filed in USDC ND/OK on 01/21/15 Page 2 of 6

Date Filed: 02/14/2014

Case 4:04-cv-00848-TCK-TLW Document 304-1 Filed in USDC ND/OK on 01/21/15 Page 3 of 6

Date Filed: 02/14/2014

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Date Filed: 02/14/2014

Case 4:04-cv-00848-TCK-TLW Document 304-1 Filed in USDC ND/OK on 01/21/15 Page 5 of 6

Date Filed: 02/14/2014

Date: February 14, 2014

Case 4:04-cv-00848-TCK-TLW Document 304-1 Filed in USDC ND/OK on 01/21/15 Page 6 of 6

Date Filed: 02/14/2014

CERTIFICATE OF DIGITAL SUBMISSION

Date: February 14, 2014

Case 4:04-cv-00848-TCK-TLW Document 304-2 Filed in USDC ND/OK on 01/21/15 Page 1 of

Case Nos. 14-5003, 14-5006

-------------------------------BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF

APPELLANTS PRINCIPAL BRIEF

John David Luton

Attorneys for Sally Howe Smith

Case 4:04-cv-00848-TCK-TLW Document 304-2 Filed in USDC ND/OK on 01/21/15 Page 2 of

History of Oklahomas Marriage Laws ...........................................................5

Procedural History ...........................................................................................8

The District Courts Decision ..........................................................................9

SUMMARY OF ARGUMENT ...............................................................................14

Baker Forecloses Plaintiffs Claims. .............................................................20

The Fourteenth Amendment Does Not Forbid the Domestic-Relations

The Public Purpose of Marriage in Oklahoma Is to Channel the

Windsor Emphasizes the States Authority to Define Marriage

Windsors Equal-Protection Analysis Does Not Apply

The People Enacted the Marriage Amendment for

Case 4:04-cv-00848-TCK-TLW Document 304-2 Filed in USDC ND/OK on 01/21/15 Page 3 of

Rational-Basis Review Applies to Plaintiffs Claims. ........................37

Plaintiffs Claims Do Not Implicate a Fundamental