15-1022 Opening Brief

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

RITA JERNIGAN, et al.
v.
PLAINTIFFS-APPELLEES
No. 15-1022
LARRY CRANE
DEFENDANT
DUSTIN McDANIEL, et al.
DEFENDANTS-APPELLANTS
__________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
THE HONORABLE KRISTINE G. BAKER
UNITED STATES DISTRICT COURT JUDGE
_________________________________________________
APPELLANTS BRIEF of the
Arkansas Attorney General,
Director of the Arkansas Department of Finance and Administration, and
Executive Director of the Arkansas Teacher Retirement System
_________________________________________________
LESLIE RUTLEDGE
Arkansas Attorney General
By: Colin R. Jorgensen
Assistant Attorney General
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-3997
Appellate Case: 15-1022
Page: 1
Date Filed: 02/17/2015 Entry ID: 4244983
SUMMARY OF THE CASE AND ORAL ARGUMENT REQUEST

The Plaintiffs-Appellees filed suit to challenge the constitutionality of
Arkansass constitutional amendment and statutes that define marriage as the union
of one man and one woman and decline to recognize same-sex marriages of other
jurisdictions.
The district court granted partial summary judgment to the
Appellees, concluding that the Appellees enjoy a fundamental due process right to
same-sex marriage; that strict scrutiny applies to this fundamental right; and that
the Arkansas marriage laws fail to satisfy strict scrutiny. The district court also
determined that the Arkansas marriage laws discriminate on the basis of gender
and fail to satisfy intermediate scrutiny. The district court further determined that
the Arkansas marriage laws discriminate on the basis of sexual orientation; that
sexual orientation is not a suspect class; and that Arkansass marriage definition
satisfies the rational-basis test as a matter of law.
The State of Arkansas asks this Court to reverse the district courts
permanent injunction and hold that Arkansass marriage laws are constitutional.
Oral argument should be heard because this case presents significant questions
about the institution of marriage, federal due process and equal protection rights,
and federalism.
The State respectfully requests oral argument of thirty (30)
minutes per side.
i
Page: 2
TABLE OF CONTENTS
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT ..... i
TABLE OF CONTENTS ....................................................................................... ii
TABLE OF AUTHORITIES ................................................................................ iii
JURISDICTIONAL STATEMENT.................................................................... vii
STATEMENT OF ISSUES ................................................................................. viii
STATEMENT OF THE CASE ...............................................................................1
SUMMARY OF THE ARGUMENT .....................................................................6
ARGUMENT ............................................................................................................7
CONCLUSION ......................................................................................................35
CERTIFICATE OF COMPLIANCE ..................................................................38
CERTIFICATE OF SERVICE ............................................................................39
ADDENDUM .................................................................................................. Add. 1
Opinion and Order, November 25, 2014 .......................................................... Add. 1
Judgment, November 25, 2014 ....................................................................... Add. 46
ii
Page: 3
TABLE OF AUTHORITIES
CASES
PAGE
Anderson v. King County, 138 P.3d 963 (Wash. 2006) ............................... 28 [FN 3]
Baker v. Nelson, 409 U.S. 810 (1972) .................................... 3, 17-20, 22, 23-24, 26
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want
of a substantial federal question, 409 U.S. 810 (1972) ........................... 16-17
Baker v. Vermont, 744 A.2d 864 (Vt. 1999) ................................................ 28 [FN 3]
Baskin v. Bogan, 12 F.Supp.3d 1144 (S.D. Ind. 2014) ................................ 29 [FN 4]
Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2014) ...... 30 [FN 4]
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) .............................................. 25-26
Bourke v. Beshear, 996 F.Supp.2d 542 (W.D. Ky. 2014) ....................................... 21
Citizens for Equal Protection, Inc. v. Bruning,
455 F.3d 859 (8th Cir. 2006) ......................................................... 3, 30-31, 32
Conaway v. Deane, 932 A.2d 571 (Md. 2007) ............................................ 28 [FN 3]
Conde-Vidal v. Garcia-Padilla, No. 14-1253 PG,
2014 WL 5361987 (D.P.R. Oct. 21, 2014) ..................................................... 19
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ........................... 28 [FN 3]
DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) ............ 19, 23-25, 26, 32, 33-34, 35
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) .................................. 36
Geiger v. Kitzhaber, 994 F.Supp.2d 1128 (D. Or. 2014) ........................................ 29
Gregory v. Ashcroft, 501 U.S. 452 (1991) ............................................................... 10
Heller v. Doe, 509 U.S. 312 (1993) ......................................................................... 11
iii
Page: 4
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ........................................ 28 [FN 3]

Hicks v. Miranda, 422 U.S. 332 (1975) .............................................................17, 18
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) .............................. 28 [FN 3]
In re Marriage Cases, 183 P.3d 384, 440 (Cal. 2008), superseded
by constitutional amendment as stated in Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012) .................................................................. 27-28
Jackson v. Abercrombie, 884 F.Supp.2d 1065 (Haw. 2012) ................................... 17
Kennedy Bldg. Assocs. v. CBS Corp., 476 F.3d 530 (8th Cir. 2007)......................... 9
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) ............................................... 25
Latta v. Otter, 19 F.Supp.3d 1054 (D. Idaho 2014)..................................... 30 [FN 4]
Lawrence v. Texas, 539 U.S. 558 (2003) .......................................................3, 20, 21
Loving v. Virginia, 388 U.S. 1 (1967) ............................................................... 21-23
Mandel v. Bradley, 432 U.S. 173 (1977) ................................................................. 17
Mass. v. U.S. Dept of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ........... 19
McGowan v. Md., 366 U.S. 420 (1961) ................................................................... 10
Nat'l R.R. Passenger Corp. v. A.T.& S.F.R. Co., 470 U.S. 451 (1985) ................... 10
Nevada v. Hall, 440 U.S. 410 (1979)....................................................................... 34
Nordlinger v. Hahn, 505 U.S. 1 (1992) ................................................................... 10
Pennoyer v. Neff, 95 U.S. 714 (1878) ...................................................................... 11
Perry v. Schwarzenegger, 628 F.3d 1091 (9th Cir. 2011)
(vacated by the Supreme Court) .................................................................... 17
Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010) ................ 29 [FN 3]
iv
Page: 5
Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151 (8th Cir. 2008) ............... 8
Roach v. Stouffer, 560 F.3d 860 (8th Cir. 2009)........................................................ 9
Rodriguez de Quijas v. Shearson/AMEX, Inc., 490 U.S. 477 (1989) ...................... 18
Romer v. Evans, 517 U.S. 620 (1996) ............................................................... 30-31
Sailors v. Bd. of Ed. of County of Kent, 387 U.S. 105 (1967) ................................. 35
Schuette v. Coalition to Defend Affirmative Action,
134 S. Ct. 1623 (2014) ......................................................................... 9-10, 35
Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) ......................... 28-29 [FN 3]
Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D. Cal. 2006) ........ 27, 28 [FN 3]
Smith v. Huckabee, 154 F. Appx 552 (8th Cir. 2005) ............................................ 36
Tully v. Griffin, Inc., 429 U.S. 68 (1976) ................................................................. 18
U.S. v. Windsor, 133 S. Ct. 2675 (2013).......................................................... passim
Whitewood v. Wolf, 992 F.Supp.2d 410 (M.D. Penn. 2014) ................. 29-30 [FN 4]
Williamson v. Lee Optical of Okla., 348 U.S. 483 (1955) ....................................... 10
Wilson v. Ake, 354 F.Supp.2d 1298 (M.D. Fla. 2005) ........................... 17, 28 [FN 3]
STATUTES
PAGE
U.S. Const. Amend. 14 .....................................................................................passim

28 U.S.C. 1738 .......................................................................................... 13 [FN 2]
Ark. Const. Amend. 83 .....................................................................................passim
Ark. Code Ann. 9-11-105 ........................................................................... 8 [FN 1]
v
Page: 6
Ark. Code Ann. 9-11-106 ........................................................................... 8 [FN 1]

Ark. Code Ann. 9-11-107 ........................................................................... 1, 5, 7-8
Ark. Code Ann. 9-11-109 ............................................................................... 1, 5, 7
Ark. Code Ann. 9-11-208 ............................................................................... 1, 5, 8
Cal. Fam. Code 300................................................................................... 36 [FN 6]
Conn. Gen. Stat. Ann. 46b-20a ................................................................. 36 [FN 6]
Del. Code Ann. tit. 13, 129 ....................................................................... 36 [FN 6]
Haw. Rev. Stat. 572-1 ............................................................................... 36 [FN 6]
750 Ill. Comp. Stat. Ann. 5/212 ................................................................... 36 [FN 6]
Md. Code Ann., Fam. Law 2-201 ............................................................. 36 [FN 6]
Minn. Stat. Ann. 517.01 ............................................................................ 36 [FN 6]
N.H. Rev. Stat. Ann. 5-C:42 ..................................................................... 36 [FN 6]
N.Y. Dom. Rel. Law 10 ............................................................................ 36 [FN 6]
R.I. Gen. Laws Ann. 15-1-1 ...................................................................... 36 [FN 6]
V.T. Stat. Ann. tit. 15, 8 ............................................................................ 36 [FN 6]
Wash. Rev. Code Ann. 26.04.010............................................................. 36 [FN 6]
OTHER AUTHORITIES
PAGE
Op. Ark. Atty Gen. No. 2013-114 .............................................................. 36 [FN 7]

Op. Ark. Atty Gen. No. 2013-135 .............................................................. 36 [FN 7]
vi
Page: 7
JURISDICTIONAL STATEMENT
The United States District Court for the Eastern District of Arkansas had
federal question jurisdiction of this civil action pursuant to 28 U.S.C. 1331. On
November 25, 2014, the district court issued an Opinion and Order (App. 124;
Add. 1) and Judgment (App. 169; Add. 46) in which the district court declared
Amendment 83 to the Arkansas Constitution and Ark. Code Ann. 9-11-107, 911-109, and 9-11-208 unconstitutional. The district court granted a permanent
injunction against enforcement of Amendment 83 and the Arkansas marriage
statutes, but it stayed execution of the injunctive relief pending final disposition of
this appeal. (App. 170; Add. 47). The State Appellants filed a timely Notice of
Appeal on December 23, 2014. (App. 172). This Court has jurisdiction over final
decisions of district courts pursuant to 28 U.S.C. 1291.
vii
Page: 8
STATEMENT OF ISSUES
I.
The District Court Erred by Concluding that the Fourteenth

Amendments Due Process Clause Provides a Fundamental Right
to Same-Sex Marriage that Requires the State of Arkansas to
Change its Definition of Marriage.
Baker v. Nelson, 409 U.S. 810 (1972)

United States v. Windsor, 133 S. Ct. 2675 (2013)
Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006)
DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)
II.
The District Court Erred by Concluding that the Traditional

Definition of Marriage Constitutes Gender Discrimination under
the Fourteenth Amendments Equal Protection Clause.
Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006)
Geiger v. Kitzhaber, 994 F.Supp.2d 1128 (D. Or. May 19, 2014)
Latta v. Otter, 19 F.Supp.3d 1054 (D. Idaho May 13, 2014)
Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. Jan. 14, 2014)
III.

Amendment Requires the State of Arkansas to Recognize SameSex Marriages of other Jurisdictions.
DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)

Nevada v. Hall, 440 U.S. 410 (1979)
Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014)
viii
Page: 9
STATEMENT OF THE CASE

Plaintiffs-Appellees (Appellees) challenge the constitutionality of
Amendment 83 to the Arkansas Constitution (Amendment 83) and provisions of
Ark. Code Ann. 9-11-107, 9-11-109, and 9-11-208. Amendment 83 and the
Arkansas marriage statutes codify the traditional man-woman definition of
marriage, and they prohibit the recognition of same-sex marriages of other
jurisdictions under Arkansas law.
Appellees filed their original complaint on July 15, 2013 (App. 8) and an
amended complaint on January 17, 2014 (App. 33), against the Arkansas Attorney
General, the Director of the Arkansas Department of Finance and Administration,
and the Executive Director of the Arkansas Teacher Retirement System
(Appellants or the State), as well as the Pulaski County Circuit Clerk (not a
party to this appeal). Appellees challenged Arkansass marriage laws under the
United States Constitution, asserting the following claims: (1) deprivation of the
fundamental right to marry (App. 44-46); (2) deprivation of Appellees liberty
interest in state recognition of same-sex marriages recognized as valid in other
jurisdictions (App. 46-47); (3) deprivation of autonomy, family privacy, and
association rights (App. 47-48); (4) deprivation of the fundamental right to travel
(App. 48-50); (5) discrimination on the basis of sexual orientation (App. 50-54);
and (6) discrimination on the basis of gender (App. 54-56). Appellees requested an
1
Page: 10
injunction barring enforcement of Arkansass marriage laws, requiring the State

and local government to allow same-sex marriages, and requiring the State and
local government to recognize valid same-sex marriages of other jurisdictions.
(App. 56-58).
After considering the parties papers and oral arguments, the district court
entered an Opinion and Order (App. 124; Add. 1) and Judgment (App. 169; Add.
46) granting in part and denying in part both the States motion to dismiss and
Appellees motion for summary judgment.
The district court concluded that
Amendment 83 and Arkansass marriage laws impermissibly restrict Appellees

fundamental right to marry and impermissibly discriminate on the basis of gender.
(App. 169-70; Add. 46-47) (Appellees claims (1) and (6) above). The district
court dismissed Appellees remaining claims, in which Appellees asserted a liberty
interest in marriage, autonomy rights, family privacy rights, associational rights,
the right to travel, and sexual-orientation discrimination. (Appellees claims (2),
(3), (4), and (5) above). The district court granted Appellees request for an
injunction, but it stayed execution of the injunction pending any appeal. (App.
170; Add. 47).
The State filed a notice of appeal on December 23, 2014. (App.
172). The Appellees have not cross-appealed.

In its 45-page order, the district court began by setting forth the factual
background of the case. (App. 125-129; Add. 2-6). Appellees personal factual
2
Page: 11
allegations were not disputed by the defendants below. The district court next
addressed and disposed of non-merits arguments raised in the defendants motions
to dismiss. (App. 129-140; Add. 6-17). The State does not challenge the district
courts rulings on service, abstention, and sovereign immunity in this appeal.
After considering the non-merits arguments, the district court analyzed two
cases that the State contends control the outcome of this case: Baker v. Nelson,
409 U.S. 810 (1972), and Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d
859 (8th Cir. 2006). The district court concluded that the U.S. Supreme Courts
summary dismissal of an appeal from a state supreme courts decision upholding a
ban on same-sex marriage in Baker did not require dismissal of this case. The
district court reasoned that doctrinal developments in two other Supreme Court
cases Lawrence v. Texas, 539 U.S. 558 (2003), and U.S. v. Windsor, 133 S. Ct.
2675 (2013) undermine the Supreme Courts summary dismissal of a
constitutional challenge against the traditional definition of marriage in Baker.
(App. 144-147; Add. 21-24). The district court concluded that Bruning controls
Appellees sexual-orientation discrimination claim, but nothing more. (App. 147149; Add. 24-26).
Turning to Appellees constitutional claims, the district court concluded that
marriage is a fundamental right; that Arkansass marriage laws restrict Appellees
fundamental right to marry; and that strict scrutiny applies to Arkansass marriage
3
Page: 12
laws. (App. 150-154; Add. 27-31). Although the district court noted that it does
not take lightly a request to declare that a state law is unconstitutional (App. 154;
Add. 31), and that [i]t is not on a whim that the Court supplants the will of the
voters[,] (id.), the district court rejected each of the States proffered reasons for
upholding Arkansass marriage laws and concluded that Arkansass marriage laws
deny same-sex couples their fundamental right to marry in violation of the
Fourteenth Amendment. (App. 154-159; Add. 31-36).
The district court declined to reach and dismissed Appellees claim alleging
a Fourteenth Amendment liberty interest in state recognition of same-sex
marriages recognized as valid in other jurisdictions, along with Appellees claim
alleging a right to autonomy, family privacy, and association under the Fourteenth
Amendment. (App. 159-160; Add. 36-37). The district court analyzed Appellees
right-to-travel claim and concluded that Arkansass marriage laws do not
impermissibly penalize Appellees right to travel and, therefore, granted the States
motion to dismiss the right-to-travel claim. (App. 160-161; Add. 37-38). In
addition, the district court concluded that sexual orientation is not a suspect class;
that rational-basis review applies to Appellees sexual-orientation discrimination
claim; and that Arkansass marriage laws satisfy the rational-basis test.
The
district court therefore granted the States motion to dismiss Appellees sexualorientation discrimination claim. (App. 161-162; Add. 38-39). Appellees have not
4
Page: 13
cross-appealed the district courts dismissal of four of Appellees six claims.

Finally, the district court concluded that Arkansass marriage laws discriminate on
the basis of gender; that intermediate scrutiny applies to Appellees gender
discrimination claim; and that Arkansass marriage laws fail to satisfy intermediate
scrutiny. (App. 162-164; Add. 39-41).
The State appeals the district courts conclusion that Amendment 83 and
Arkansass marriage laws impermissibly burden the fundamental right to marriage
and the district courts conclusion that Amendment 83 and Arkansass marriage
laws impermissibly discriminate on the basis of gender. The State asks this Court
to reverse the district courts permanent injunction and hold that Amendment 83
and Ark. Code Ann. 9-11-107, 9-11-109, and 9-11-208 are constitutional.
5
Page: 14
SUMMARY OF THE ARGUMENT

The district court granted partial summary judgment to Plaintiffs-Appellees,
concluding that Appellees enjoy a fundamental due process right to same-sex
marriage under the Fourteenth Amendment.
This ruling is inconsistent with
binding precedent from this Court and the U.S. Supreme Court, and it should be
reversed. In addition, the district courts determination that the Arkansas marriage
laws impermissibly discriminate on the basis of gender was erroneous as a matter
of law. The marriage laws treat men and women exactly the same and, therefore,
do not discriminate on the basis of gender or trigger intermediate scrutiny.
The district court granted the States motion to dismiss Appellees sexualorientation discrimination claim and Appellees right-to-travel claim. The district
court dismissed Appellees claim regarding a liberty interest in state recognition of
marriages consummated outside Arkansas, and Appellees claim pursuant to
alleged autonomy, privacy, and association rights.
Appellees have not cross-
appealed the district courts unfavorable disposition of four of the six claims raised
by Appellees.
6
Page: 15
ARGUMENT
At the general election held on November 2, 2004, Arkansas voters
approved a constitutional amendment by a vote of 753,770 (74.95%) for, to
251,914 (25.05%) against, which became Amendment 83 to the Arkansas
Constitution. Amendment 83 provides in full:
1. Marriage
Marriage consists only of the union of one man and one
woman.
2. Marital Status
Legal status for unmarried persons which is identical or
substantially similar to marital status shall not be valid or
recognized in Arkansas, except that the legislature may
recognize a common law marriage from another state
between a man and a woman.
3. Capacity, rights, obligations, privileges and
immunities
The Legislature has the power to determine the capacity
of persons to marry, subject to this amendment, and the
legal rights, obligations, privileges, and immunities of
marriage.
Id.
The Arkansas General Assembly had previously adopted Act 144 of 1997,
which declares that [m]arriage shall only be between a man and a woman and
that a marriage between persons of the same sex is void. Ark. Code Ann. 911-109.
See also Ark. Code Ann. 9-11-107(b) (stating that Arkansass

7
Page: 16
recognition of certain foreign marriages shall not apply to a marriage between

persons of the same sex). Arkansas law provides further:
(a)(1)(A) It is the public policy of the State of Arkansas
to recognize the marital union only of man and woman.
(B) A license shall not be issued to a person to
marry another person of the same sex, and no
same-sex marriage shall be recognized as entitled
to the benefits of marriage.
(2) Marriages between persons of the same sex are
prohibited in this state. Any marriage entered into by a
person of the same sex, when a marriage license is issued
by another state or by a foreign jurisdiction, shall be void
in Arkansas, and any contractual or other rights granted
by virtue of that license, including its termination, shall
be unenforceable in the Arkansas courts.
(3) However, nothing in this section shall prevent an
employer from extending benefits to a person who is a
domestic partner of an employee.
Ark. Code Ann. 9-11-208.1
Standard of Review
This Court reviews a district courts ruling on summary judgment de novo.
Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151, 1156 (8th Cir. 2008).
The standard of review of a district courts entry of a permanent injunction is abuse
Arkansas law also expressly prohibits incestuous marriages, declaring them

to be absolutely void. Ark. Code Ann. 9-11-106(a). A violation of the
prohibition of incestuous marriages is a misdemeanor criminal offense. Ark. Code
Ann. 9-11-106(b). Arkansas law also prohibits marriages of any male under the
age of 17, and any female under the age of 16. Ark. Code Ann. 9-11-105.
8
Page: 17
of discretion. See Roach v. Stouffer, 560 F.3d 860, 863 (8th Cir. 2009). A district
court abuses its discretion when it bases its decision on a legal error or a clearly
erroneous finding of fact.
Roach, 560 F.3d at 863 (quoting Kennedy Bldg.
Assocs. v. CBS Corp., 476 F.3d 530, 534 (8th Cir. 2007)).
By approving Amendment 83 and thereby adding it to their State
Constitution, the Arkansas voters exercised their privilege to enact laws as a basic
exercise of their democratic power. Schuette v. Coalition to Defend Affirmative
Action, 134 S. Ct. 1623, 1636 (2014) (plurality opinion). [F]reedom does not stop
with individual rights.
Our constitutional system embraces, too, the right of
citizens to debate so they can learn and decide and then, through the political
process, act in concert to try to shape the course of their own times[.] 134 S. Ct.
at 1636-37. The Supreme Court explained:
Were the Court to rule that the question addressed by []
voters is too sensitive or complex to be within the grasp
of the electorate; or that the policies at issue remain too
delicate to be resolved [by the people]; or that these
matters are so arcane that the electorates power must be
limited because the people cannot prudently exercise that
power even after a full debate, that holding would be an
unprecedented restriction on the exercise of a
fundamental right held not just by one person but by all
in common. It is the right to speak and debate and learn
and then, as a matter of political will, to act through a
lawful electoral process.
Id. at 1637. The voters of Arkansas have a fundamental right . . . to act through a
lawful electoral process[,] and they exercised that right by enacting Amendment
9
Page: 18
83. Id. As Justice Kennedy properly recognized, any judicial intrusion into the
voters exercise of that fundamental right is inconsistent with the underlying
premises of a responsible, functioning democracy. Id.
In enacting Amendment 83, the citizens of Arkansas had absolutely no
obligation to select the scheme that a court might later conclude was best. Nat'l
R.R. Passenger Corp. v. A.T.& S.F.R. Co., 470 U.S. 451, 477 (1985). It is enough
that there is an evil at hand for correction, and that it might be thought that the
particular legislative measure was a rational way to correct it. Williamson v. Lee
Optical of Okla., 348 U.S. 483, 487-88 (1955). Amendment 83 does not have to be
perfect in order to be constitutional. See McGowan v. Md., 366 U.S. 420, 425-26
(1961) (State legislatures are presumed to have acted within their constitutional
power despite the fact that in practice, their laws result in some inequality.). The
presumption that a law is constitutional even though it may be imperfect is even
stronger with regard to laws passed by the citizens themselves at the ballot box.
See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (upholding an initiated act
approved by California voters); Gregory v. Ashcroft, 501 U.S. 452, 470-71 (1991)
(applying rational-basis review and noting that the Court was dealing not merely
with government action, but with a state constitutional provision approved by the
people of Missouri as a whole and therefore the constitutional provision reflects .
. . the considered judgment . . . of the citizens of Missouri who voted for it).
10
Page: 19
As explained below, the State contends that the proper standard for analysis
of Amendment 83 and Arkansass marriage laws under the U.S. Constitution is the
rational-basis test. Under rational-basis review, a law is presumed constitutional
and [t]he burden is on the one attacking the legislative arrangement to negative
every conceivable basis which might support it. Heller v. Doe, 509 U.S. 312, 320
(1993) (internal quotations omitted). A court conducting rational-basis review
does not sit as a superlegislature to judge the wisdom or desirability of legislative
policy determinations but, instead, only asks whether there is some conceivable,
rational basis for the challenged statute. Id., 509 U.S. at 319.
I.

Amendments Due Process Clause Provides a Fundamental Right
to Same-Sex Marriage that Requires the State of Arkansas to
Change its Definition of Marriage.
A.
Windsor is a federalism case, not a fundamental-right-to-marry

case.
By history and tradition the definition and regulation of marriage . . . has

been treated as being within the authority and realm of the separate States.
Windsor, 133 S. Ct. at 2689-90. The Supreme Court has long maintained that a
State has absolute right to prescribe the conditions upon which the marriage
relation between its own citizens shall be created, and the causes for which it may
be dissolved. Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878). The Supreme Court
reaffirmed its deeply rooted deference to state regulation of marriage at the outset,
11
Page: 20
and at length, in Windsor. 133 S. Ct. at 2691-92. The Court explained that
domestic relations has always been regarded as an exclusive province of the states;
that civil marriage is central to state domestic relations law; that the definition of
marriage is the foundation of the States broader authority to protect offspring,
protect property rights, and enforce marital responsibilities; that the federal
government has always deferred to state-law policy decisions respecting domestic
relations and there is no federal law of domestic relations; and that when the
Constitution was adopted, domestic relations of husband and wife and parent and
child were matters reserved to the States. Id.
Thus, in Windsor, the Supreme Court struck down Section 3 of the federal
Defense of Marriage Act (DOMA) not because the recognition of same-sex
marriages is required by the federal Constitution (the Court disavowed any such
principle that same-sex marriages must be recognized), but because the Court
concluded that the federal government lacks authority to discriminate among
opposite-sex and same-sex marriages where both are recognized under state law.
The federal governments refusal to respect the States authority to define marriage
represented a significant and in the Courts view, unwarranted federal
intrusion on state power to define marriage. 133 S. Ct. at 2692. The Court
declined to recognize same-sex marriage as a fundamental right under the federal
Constitution, and it declined to recognize homosexuality as a suspect classification
12
Page: 21
for purposes of equal protection analysis.
Rather, the Court concluded that
federalism concerns undermined the rationality of a federal law that imposed a

definition of marriage contrary to the definition in state law and which did not treat
all marriages authorized under state law as equal. Id. The Windsor majority did
not hold that states are constitutionally required to allow same-sex marriage or
recognize same-sex marriages performed under the laws of other jurisdictions.2
The Windsor majority affirmed the traditional view that it is the province of
individual states to choose which marriages will be recognized under state law.
Indeed, none of the Supreme Court Justices in Windsor whether in the majority
or in dissent opined that states are constitutionally required to recognize samesex marriage. The four dissenting Justices filed three opinions. Chief Justice
Roberts, Justice Alito, Justice Scalia, and Justice Thomas would have upheld
DOMA. Three of the dissenting Justices clearly indicated a belief that states may
constitutionally retain the traditional definition of marriage. See 133 S. Ct. at
2707-08 (Scalia, J., dissenting, joined in relevant part by Thomas, J.); id. at 271516 (Alito, J., dissenting, joined in relevant part by Thomas, J.). And, Chief Justice
Roberts pointedly emphasized that while [t]he States power in defining the
2
Section 2 of DOMA, which was not at issue in Windsor, explicitly allows

States to decline to recognize same-sex marriages performed under the laws of
other States. See 28 U.S.C. 1738C (No State . . . shall be required to give effect
to any public act, record, or judicial proceeding of any other State . . . respecting a
relationship between persons of the same sex that is treated as a marriage under the
laws of such other State . . . or a right or claim arising from such relationship.).
13
Page: 22
marital relation is of central relevance to the majoritys decision to strike down

DOMA here, . . . that power will come into play on the other side of the board in
future cases about the constitutionality of state marriage definitions. So too will
the concerns for state diversity and sovereignty that weigh against DOMAs
constitutionality in this case. Id. at 2697 (Roberts, C.J., dissenting) (quoting
majority opinion). The views expressed by these four Justices without any
contrary expression from the Courts other Justices strongly suggest that the
Supreme Court would uphold Amendment 83 under the U.S. Constitution.
The question Appellees cannot answer is this: If the majority opinion in
Windsor requires the invalidation of a state law codifying the traditional definition
of marriage, then why did the Windsor majority go to such great length to affirm
state sovereignty over domestic relations and the definition of marriage in a case
where that issue was not even presented?
The answer is that DOMA was
invalidated because of state sovereignty over domestic relations, because some

states exercised that authority to limit marriage to opposite-sex couples and other
states exercised that authority to allow same-sex marriage, and because the federal
government has no legitimate interest in regulating marriage in any way that
interferes with state sovereignty over marriage. Windsor affirms the validity of
state laws codifying the traditional definition of marriage and state laws allowing
same-sex marriage. The Courts invalidation of a federal law limiting marriage to
14
Page: 23
opposite-sex couples where some states allow same-sex couples to marry is

entirely consistent with Arkansass position that a state law limiting marriage to
opposite-sex couples is constitutional. The States position in this case is perfectly
consistent with the entire majority opinion in Windsor.
The federal law at issue in Windsor was unconstitutional because it
interfered with the right of New York citizens to define marriage for their
community. Likewise, Arkansas citizens have the right to define marriage for their
community. Precisely because the unusual character of the federal law at issue
in Windsor depart[ed] from th[e] history and tradition of [federal] reliance on
state law to define marriage[,] the federal law carried an improper purpose and
effect. 133 S. Ct. at 2692-93. The logic of Windsor does not apply to a state law
defining marriage, because a state law defining marriage is perfectly consistent
with state sovereignty over domestic relations and the definition of marriage.
Appellees interpretation of Windsor conflicts with the majority opinion in
Windsor, and it begs the question why the Court included a lengthy discussion of
state sovereignty over domestic relations and the definition of marriage if the Court
would strike down a state constitutional provision where the voters of Arkansas
have exercised the precise authority embraced by the majority in Windsor.
15
Page: 24
B.
Baker is binding precedent.
Consistent with Windsor, Appellees federal due process and equal

protection claims fail on the merits under established federal law. In Baker v.
Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of a substantial
federal question, 409 U.S. 810 (1972), the Minnesota Supreme Court held that a
state statute defining marriage as a union between persons of the opposite sex did
not violate the First, Eighth, Ninth, or Fourteenth Amendments of the U.S.
Constitution. The state supreme court rejected the plaintiffs claims, concluding
that same-sex marriage is not a fundamental right. 191 N.W.2d at 186-87. The
court further determined that [t]he equal protection clause of the Fourteenth
Amendment, like the due process clause, is not offended by the states
classification of persons authorized to marry[.] Id. at 187.
The U.S. Supreme Court summarily dismissed the plaintiffs appeal in Baker
for want of a substantial federal question, Baker, 409 U.S. 810, where the Court
was presented with the following three questions:
(1) Whether [Minnesotas] refusal to sanctify appellants
marriage deprives appellants of their liberty to marry and
of their property without due process of law under the
Fourteenth Amendment.
(2) Whether [Minnesotas] refusal, pursuant to Minnesota
marriage statutes, to sanctify appellants marriage
because both are of the male sex violates their rights
under the equal protection clause of the Fourteenth
Amendment.
16
Page: 25
(3) Whether [Minnesotas] refusal to sanctify appellants

marriage deprives appellants of their right to privacy
under the Ninth and Fourteenth Amendments.
The Supreme Court has not explicitly or implicitly overturned its holding in
Baker or provided the lower courts with any reason to believe that the holding is
invalid. Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1085 (Haw. 2012) (citing
Perry v. Schwarzenegger, 628 F.3d 1091, 1099 n.1 (9th Cir. 2011) (N. R. Smith, J.,
concurring in part and dissenting in part) (vacated by the Supreme Court)
(concluding that the Supreme Court cases following Baker do not suggest any
doctrinal developments indicating Baker is no longer good law); Wilson v. Ake,
354 F.Supp.2d 1298, 1305-06 (M.D. Fla. 2005) (same)).
Therefore, Baker constitutes binding precedent as far as lower courts are
concerned. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (summary dismissals
by the Court prevent lower courts from coming to opposite conclusions on the
precise issues presented and necessarily decided by those actions.); Hicks v.
Miranda, 422 U.S. 332, 344 & 345 n.14 (1975) (summary dismissals by the Court
constitute a ruling on the merits by the Court; unless and until the Supreme Court
should instruct otherwise, inferior federal courts had best adhere to the view that if
the Court has branded a question as unsubstantial, it remains so except when
doctrinal developments indicate otherwise[.]).
17
Page: 26
The Supreme Courts dismissal of the appeal in Baker was a decision on the
merits that constitutes controlling precedent, unless and until re-examined by [the
Supreme] Court. Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976). This Court has an
obligation to adhere to the view that if the [Supreme] Court has branded a
question as unsubstantial, it remains so except when doctrinal developments
indicate otherwise[.] Hicks, 422 U.S. at 344-45. The lower courts are bound by
summary decisions by [the Supreme] Court until such time as the Court informs
[them] that [they] are not. Id. Indeed, when a precedent of [the Supreme] Court
has direct application in a case, this Court must follow it even if it appears to rest
on reasons rejected in some other line of decisions. Rodriguez de Quijas v.
Shearson/AMEX, Inc., 490 U.S. 477, 484 (1989). [T]he Court of Appeals should
follow the case which directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions. Id.
Baker is a precedential disposition on the merits which Hicks and Rodriguez
de Quijas make clear this Court is not at liberty to disregard. The Baker Court
confirmed that the Constitution commits questions of marriage policy to the
citizens of each state and that, absent exceptional circumstances, federal courts
should resist the temptation to interfere with state marriage regulation. Appellees
and the district court attempt to turn the command of Baker on its head. Baker is
binding precedent that requires dismissal of due process, equal protection, and
18
Page: 27
privacy claims brought against any state law codifying the traditional definition of
marriage. Appellees federal claims fail under Baker alone. See DeBoer v. Snyder,
772 F.3d 388, 399-402 (6th Cir. 2014) (concluding that Baker is binding precedent
in analogous case); Mass. v. U.S. Dept of Health & Human Servs., 682 F.3d 1, 8
(1st Cir. 2012) (same), cited in Windsor, 133 S. Ct. at 2688, 2693; Conde-Vidal v.
Garcia-Padilla, No. 14-1253 PG, 2014 WL 5361987, at *6 (D.P.R. Oct. 21, 2014)
(same).
Appellees have argued in this case, and the district court concluded, that
doctrinal developments since Baker have rendered Baker irrelevant, and have
overridden the precedential effect of Baker. Of course, there is no discussion of
Baker in the Windsor opinion, despite the fact that Baker was squarely presented to
the Court.
Rather than overruling Baker, or noting any significant doctrinal
development that would call Baker into question, the Court affirmed its deeply
rooted deference to state regulation of marriage. Windsor, 133 S. Ct. at 2691-92.
Nothing in the Courts Windsor opinion remotely questions the Courts decision in
Baker. Baker is not even cited in the Courts majority opinion in Windsor, which
indicates that doctrinal developments have not overridden the precedential effect of
Baker. If anything, Windsors emphasis on the unprecedented federal intrusion
into the states authority over domestic relations reaffirms Bakers conclusion that
a states definition of marriage presents no substantial federal question. Baker,
19
Page: 28
409 U.S. at 810. The Windsor opinion expressly confined [itself] to . . . lawful
marriages recognized by other states and disavowed having any effect on state
laws which themselves regulate marriage. Windsor, 133 S. Ct. at 2696.
Lawrence v. Texas, 539 U.S. 558 (2003), was not a doctrinal development of
the sort that would undermine Baker. In Lawrence, the Supreme Court invalidated
a state law criminalizing sodomy, but the Court was careful to note that the Texas
statute at issue did not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter. 539 U.S. at
578. This is not a case like Lawrence, where the right to engage in private,
consensual sexual activity in ones home was burdened by a law criminalizing
homosexual conduct. Id. Lawrence may have represented a significant doctrinal
development in the Courts recognition of privacy rights in the bedroom, but it
does not represent a significant doctrinal development relevant to this case in
which Appellees seek to require formal governmental recognition of their
relationships. The Supreme Court has consistently and repeatedly declined to
recognize a fundamental constitutional due process, equal protection, or privacy
right of the type advocated by Appellees in this case.
The Supreme Court has never held that there is a fundamental right to samesex marriage warranting heightened scrutiny, nor has the Supreme Court ever held
that sexual orientation constitutes a suspect classification, including in Lawrence
20
Page: 29
and Windsor. See Bourke v. Beshear, 996 F.Supp.2d 542, 549 (W.D. Ky. 2014)
(Despite this comforting language [in Windsor], neither the Supreme Court nor
the Sixth Circuit has stated that the fundamental right to marry includes a
fundamental right to marry someone of the same sex.). Indeed, in the most recent
pre-Windsor Supreme Court case cited by Appellees for their argument that
heightened scrutiny should apply to their federal claims, the Court was careful to
note that the sodomy statute at issue in that case did not involve whether the
government must give formal recognition to any relationship that homosexual
persons seek to enter. Lawrence, 539 U.S. at 578. See also id. at 585 (OConnor,
J., concurring) (Texas cannot assert any legitimate state interest here, such as
national security or preserving the traditional institution of marriage. Unlike the
moral disapproval of same-sex relations the asserted interest in this case other
reasons exist to promote the institution of marriage beyond mere moral
disapproval of an excluded group.) (emphasis added).
C.
Loving does not give rise to a fundamental right to same-sex

marriage.
Appellees have also argued that they enjoy a fundamental constitutional

right to same-sex marriage under Loving v. Virginia, 388 U.S. 1 (1967). It is
correct that Loving recognized exceptional circumstances in which judicial
interference with state regulation of marriage is needed such as when a husband
and wife face criminal sanctions for marrying when they happen to be of different
21
Page: 30
races.
See id., 388 U.S. at 7.
But while invidious racial discriminations
warranted judicial action in Loving, no such discrimination is implicated here.

Indeed, Appellees argument that Loving controls here requires Appellees to also
assert that the Supreme Court forgot about Loving only five years later when it
decided Baker.
Loving holds that restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal Protection Clause and
that the Fourteenth Amendment requires that the freedom of choice to marry not
be restricted by invidious racial discriminations. Loving, 388 U.S. at 12. Thus,
Loving stands as a clear prohibition against racial discrimination in laws defining
and regulating marriage, but Loving does not prevent the states from defining
marriage as a union of a man and a woman. Loving states that [u]nder our
Constitution, the freedom to marry or not marry, a person of another race resides
with the individual and cannot be infringed by the State. 388 U.S. at 12. But
Loving says nothing about the states power to define marriage as every state has
done for almost all of American history as a male-female relationship. It is
unsurprising that, only five years after Loving, when the viability of the traditional
definition of marriage was squarely before the Supreme Court, the Court
concluded that no substantial federal question was implicated. Baker, 409 U.S.
810. There is no conflict in holding both that the Constitution prohibits racial
22
Page: 31
restrictions on the right to enter marriage, and that the Constitution is not offended
by a states choice to define marriage as an opposite-sex relationship.
D.
This Court should follow the Sixth Circuits decision in

DeBoer.
The State is not tilting at windmills in this case. To the contrary, the State
seeks to affirm and preserve bedrock authority that supports constitutional
democracy. In DeBoer v. Snyder, the Sixth Circuit Court of Appeals affirmed the
constitutional validity of the essentially identical marriage laws of Michigan, Ohio,
Kentucky, and Tennessee (also essentially identical to Arkansass marriage
definition codified in Amendment 83). 772 F.3d 388. In DeBoer, Judge Sutton
began by noting that, [f]or better, for worse, or for more of the same, marriage has
long been a social institution defined by relationships between men and women.
So long defined, the tradition is measured in millennia, not centuries or decades.
So widely shared, the tradition until recently had been adopted by all governments
and major religions of the world. Id., 772 F.3d at 395-96.
The Sixth Circuit directly addressed a question presented in this case: Does
the Due Process Clause or the Equal Protection Clause of the Fourteenth
Amendment require states to expand the definition of marriage to include same-sex
couples? 772 F.3d at 399. The Sixth Circuit began by discussing Baker and
noting that [t]he [Supreme] Court has yet to inform us that we are not [bound by
Baker], and we have no license to engage in a guessing game about whether the
23
Page: 32
Court will change its mind or, more aggressively, to assume authority to overrule
Baker ourselves. Id. at 400. Regarding the argument that Baker was implicitly
overruled by Windsor, the Sixth Circuit noted that:
Windsor does not answer todays question. The decision
never mentions Baker, much less overrules it. And the
outcomes of the cases do not clash. Windsor invalidated
a federal law that refused to respect state laws permitting
gay marriage, while Baker upheld the right of the people
of a state to define marriage as they see it. To respect
one decision does not slight the other.
Id. Regarding the argument that doctrinal developments have rendered Baker no
longer controlling, the Sixth Circuit explained that no case including Windsor,
Lawrence, or any other Supreme Court decision has overruled Baker by name or
by outcome. To read doctrinal developments to overrule a Supreme Court decision
under such circumstances returns us to a world in which the lower courts may
anticipatorily overrule all manner of Supreme Court decisions based on countingto-five predictions, perceived trajectories in the caselaw, or, worst of all, new
appointments to the Court. Id. at 401.
Next, the Sixth Circuit exhaustively analyzed at least six theories offered by
the various plaintiffs from the four states, including original meaning (DeBoer, 772
F.3d at 403-04), rational basis review (id. at 404-08), animus (id. at 408-10), the
fundamental right to marry (id. at 410-13), homosexuality as a suspect class (id. at
413-16), and evolving meaning (id. at 416-18), and concluded that [n]ot one of
24
Page: 33
the plaintiffs theories makes the case for constitutionalizing the definition of
marriage and for removing the issue from the place it has been since the founding:
in the hands of state voters. Id. at 402-03. In conclusion, the Sixth Circuit wrote:
In just eleven years, nineteen states and a conspicuous
District, accounting for nearly forty-five percent of the
population, have exercised their sovereign powers to
expand a definition of marriage that until recently was
universally followed going back to the earliest days of
human history. That is a difficult timeline to criticize as
unworthy of further debate and voting. When the courts
do not let the people resolve new social issues like this
one, they perpetuate the idea that the heroes in these
change events are judges and lawyers. Better in this
instance, we think, to allow change through the
customary political processes, in which the people, gay
and straight alike, become the heroes of their own stories
by meeting each other not as adversaries in a court
system but as fellow citizens seeking to resolve a new
social issue in a fair-minded way.
Id. at 421. See also Kitchen v. Herbert, 755 F.3d 1193, 1240 (10th Cir. 2014)
(Kelly, J., dissenting) (On this issue we should defer . . . [A]ny improvement on
the [marriage] classification should be left to the state political process . . . We
should resist the temptation to become philosopher-kings, imposing our views
under the guise of constitutional interpretation of the Fourteenth Amendment.);
Bostic v. Schaefer, 760 F.3d 352, 398 (4th Cir. 2014) (Niemeyer, J., dissenting)
(Because there is no fundamental right to same-sex marriage and there are
rational reasons for not recognizing it, just as there are rational reasons for
recognizing it, I conclude that we, the Third Branch, must allow the States to enact
25
Page: 34
legislation on the subject in accordance with their political processes. The U.S.
Constitution does not, in my judgment, restrict the States policy choices on this
issue. If given the choice, some States will surely recognize same-sex marriage
and some will surely not. But that is, to be sure, the beauty of federalism.).
E.
Conclusion
Appellees federal constitutional claims are barred nationwide by Baker.

This Court should follow the Supreme Courts precedential command that federal
courts must avoid substituting their own definition of marriage for that adopted by
a states citizenry. Even without Baker, the federal due process claims fail under
Windsor and the reasoning of DeBoer. The district court erred by granting partial
summary judgment to Appellees on their claim of a fundamental right to same-sex
marriage. This Court should reverse the decision below and uphold the validity of
Amendment 83 and Arkansass marriage laws under the U.S. Constitution.
II.
The District Court Erred by Concluding that the Traditional

Definition of Marriage Constitutes Gender Discrimination under
the Fourteenth Amendments Equal Protection Clause.
The district courts conclusion that Amendment 83 and Arkansass marriage

laws treat individuals differently on the basis of their gender is incorrect. In fact,
Amendment 83 treats all persons exactly the same without regard to gender.
Under Arkansas law, no person, male or female, may marry a person of the same
gender. Appellees are not classified or treated differently on the basis of their
26
Page: 35
gender. Appellees argument namely, that that they are discriminated against
based upon somebody elses gender is not a valid gender claim under any
recognized theory of law. Appellees gender discrimination claim fails for this
reason alone, and the district courts gender discrimination ruling should be
reversed accordingly.
To date, the laws in which the Supreme Court has found sex-based
classifications have all treated men and women differently . . . Supreme Court
precedent has only found sex-based classifications in laws that have a disparate
impact on one sex or the other. Smelt v. County of Orange, 374 F.Supp.2d 861,
876-77 (C.D. Cal. 2006), overruled on other grounds by Windsor, supra
(collecting cases). Prior to Windsor, the overwhelming majority of courts that
considered a claim that the traditional definition of marriage constitutes
impermissible gender discrimination have rejected the claim because the traditional
definition of marriage does not treat men and women differently. See, e.g., In re
Marriage Cases, 183 P.3d 384, 440 (Cal. 2008), superseded by constitutional
amendment as stated in Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ([W]e
conclude that in the context of Californias equal protection clause, the differential
treatment prescribed by the relevant statutes cannot properly be found to constitute
discrimination on the basis of sex, and thus that the statutory classification
27
Page: 36
embodied in the marriage statutes is not subject to strict scrutiny on that

ground.).3
See also, Conaway v. Deane, 932 A.2d 571, 598 (Md. 2007) ([T]he
marriage statute does not discriminate on the basis of sex in violation of [equal
protection]. The limitations on marriage effected by [the marriage statute] do not
separate men and women into discrete classes for the purpose of granting to one
class of persons benefits at the expense of the other class. Nor does the statute,
facially or in its application, place men and women on an uneven playing field.
Rather, the statute prohibits equally both men and women from the same
conduct.); Anderson v. King County, 138 P.3d 963, 988 (Wash. 2006) (Men and
women are treated identically under DOMA; neither may marry a person of the
same sex. DOMA therefore does not make any classification by sex, and it does
not discriminate on account of sex.) (citations omitted); Hernandez v. Robles, 855
N.E.2d 1, 10-11 (N.Y. 2006) (By limiting marriage to opposite-sex couples, New
York is not engaging in sex discrimination. The limitation does not put men and
women in different classes, and give one class a benefit not given to the other.
Women and men are treated alike they are permitted to marry people of the
opposite sex, but not people of their own sex.); Smelt v. County of Orange, supra,
374 F.Supp.2d at 876-77; Wilson v. Ake, supra, 354 F.Supp.2d at 1307-08
(DOMA does not discriminate on the basis of sex because it treats women and
men equally.); In re Kandu, 315 B.R. 123, 143 (Bankr. W.D. Wash. 2004)
(DOMA . . . does not single out men or women as a discrete class for unequal
treatment. Rather, a marriage law such as DOMA prohibits men and women
equally from marrying a person of the same sex. Women, as members of one
class, are not being treated differently from men, as members of a different class . .
. Accordingly, the marriage definition contained in DOMA does not classify
according to gender[.]) (internal quotations and citations omitted); Baker v.
Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999) ([T]he marriage laws are facially
neutral; they do not single out men or women as a class for disparate treatment, but
rather prohibit men and women equally from marrying a person of the same sex . .
. Here, there is no discrete class subject to differential treatment solely on the basis
of sex; each sex is equally prohibited from precisely the same conduct.); Dean v.
District of Columbia, 653 A.2d 307, 363 n.2 (D.C. 1995) (Steadman, J.,
concurring) (concluding that it stretch[es] the concept of gender discrimination to
assert that it applies to treatment of same-sex couples differently from opposite-sex
couples); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974) ([I]t is
apparent that the states refusal to grant a license allowing the appellants to marry
28
Page: 37
In Windsor, the Supreme Court did not consider a gender discrimination

claim against the traditional definition of marriage set forth in DOMA. In the
wake of Windsor, although many district courts have ruled in favor of plaintiffs
under a variety of theories, most of the district courts to reach the issue have
concluded that the traditional definition of marriage does not amount to
impermissible gender discrimination.
See, e.g., Geiger v. Kitzhaber, 994
F.Supp.2d 1128, 1139-40 (D. Or. 2014) (The states marriage laws discriminate
based on sexual orientation, not gender. In fact, the ban does not treat genders
differently at all. Men and women are prohibited from doing the exact same thing:
marrying an individual of the same gender. The ban does not impact males and
females differently).4
one another is not based upon appellants status as males . . . appellants are not
being discriminated against because of their status as males per se.); but see Perry
v. Schwarzenegger, 704 F.Supp.2d 921, 996 (N.D. Cal. 2010) (Proposition 8
targets gays and lesbians in a manner specific to their sexual orientation and,
because of their relationship to one another, Proposition 8 targets them specifically
due to sex.).
4
See also, Baskin v. Bogan, 12 F.Supp.3d 1144, 1159 (S.D. Ind. 2014)
(Unlike Loving, where the court found evidence of invidious racial
discrimination, the court finds no evidence of an invidious gender-based
discrimination here. Moreover, there is no evidence that the purpose of the
marriage laws is to ratify a stereotype about the relative abilities of men and
women or to impose traditional gender roles on individuals.) (internal citation
omitted); Whitewood v. Wolf, 992 F.Supp.2d 410, 425 n.9 (M.D. Penn. 2014) (As
an additional, alternative argument, Plaintiffs also contend that the Marriage Laws
impose sex-based classifications and, on this ground, are subject to intermediate
scrutiny. We find this characterization less compelling, observing, as a practical
29
Page: 38
The district court correctly upheld Amendment 83 and Arkansass marriage

laws and properly rejected Appellees sexual-orientation discrimination claim
based upon this Courts decision in Citizens for Equal Protection, Inc. v. Bruning,
455 F.3d 859 (8th Cir. 2006). In Bruning, this Court squarely addressed the
constitutionality of a substantively identical state constitutional amendment, and it
specifically held that the plaintiffs equal protection argument fails on the merits.
455 F.3d at 864-69. This Court noted that sexual orientation is not a suspect
classification for purposes of equal protection analysis, and rational-basis review
applies to a state law defining marriage. Id. (citing Romer v. Evans, 517 U.S. 620
matter, that the intentional discrimination occurring in this case has nothing to do
with gender-based prejudice or stereotypes.) (internal quotation and citation
omitted); Latta v. Otter, 19 F.Supp.3d 1054, 1074 (D. Idaho 2014) (Idahos
Marriage Laws allow heterosexuals, but not homosexuals, to marry and thus
clearly discriminate on the basis of sexual orientation. This distinction does not
prefer one gender over the other two men have no more right to marry under
Idaho law than two women. In other words, Idahos Marriage Laws are facially
gender neutral and there is no evidence that they were motivated by a gender
discriminatory purpose.); Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252,
1286 (N.D. Okla. 2014) ([T]he Courts defined class is same-sex couples desiring
an Oklahoma marriage license. This class of individuals is excluded from
marriage regardless of their gender, i.e., regardless of whether they are two men or
two women. Part A does not draw any distinction 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. The female couples in this case could readily be substituted for male
couples, and the male couples would be forced to make precisely the same sex
discrimination arguments.
Common sense dictates that the intentional
discrimination occurring in this case has nothing to do with gender-based prejudice
or stereotypes, and the law cannot be subject to heightened scrutiny on that
basis.).
30
Page: 39
(1996)). This Court emphasized that [w]hatever our personal views regarding this
political and sociological debate, we cannot conclude that the States justification
lacks a rational relationship to legitimate state interests. Id. at 868 (citing
Romer, 517 U.S. at 632). In conclusion, the Court noted: In the nearly one
hundred and fifty years since the Fourteenth Amendment was adopted, to our
knowledge no Justice of the Supreme Court has suggested that a state statute or
constitutional provision codifying the traditional definition of marriage violates the
Equal Protection Clause or any other provision of the United States Constitution.
Id. at 870.
The district court properly applied the rational-basis test, concluded that
Amendment 83 and Arkansass marriage laws satisfy the rational-basis test, and
granted the States motion to dismiss Appellees sexual-orientation discrimination
claim under Bruning. But the district court went astray when it distinguished
Bruning and concluded that Bruning has no bearing on Appellees due process and
gender discrimination claims. While this Court did not directly address a due
process or gender discrimination claim in Bruning, this Court broadly upheld a
substantively identical state constitutional provision and concluded that the
traditional definition of marriage is constitutional. Appellees additional claims
raised against an essentially identical state definition of marriage in this case
likewise fail on the merits as a matter of law.
31
Page: 40
It should be noted that although the Supreme Court has characterized the
questions presented in its Sixth Circuit certiorari grant broadly enough to
encompass a gender discrimination claim (or any equal protection discrimination
claim),5 the Sixth Circuits expansive opinion contains no discussion of any gender
discrimination claim.
Although it is impossible to reliably predict how the
Supreme Court will reason among the myriad claims and underlying standards
encompassed by the questions the Court will review in DeBoer, or even from
among the six theories asserted by the plaintiffs and considered by the Sixth
Circuit (DeBoer, 772 F.3d at 403-18), it appears likely that the Supreme Court will
decide the constitutionality of traditional state marriage definitions without even
considering any gender discrimination claim. This makes perfect sense, of course,
because Amendment 83 and similar laws do not plausibly discriminate on the basis
of gender. The Appellees and the district court, bound by Bruning, devised a
workaround based upon a novel but illogical and unsupported gender
discrimination theory.
This Court should hold that Amendment 83 does not
discriminate on the basis of gender.

In summary, Amendment 83 and the Arkansas marriage laws treat men and
women exactly the same. Because Amendment 83 and the marriage laws do not
5
See Order List, 574 U.S. ___ (Jan. 16, 2015), Obergefell, James, et al. v.
Hodges, Richard, et al. (No. 14-556), Tanco, Valeria, et al. v. Haslem, Gov. of TN,
et al. (No. 14-562), DeBoer, April, et al. v. Snyder, Gov. of MI, et al. (No. 14-571),
and Bourke, Gregory, et al. v. Beshear, Gov. of KY, et al. (No. 14-574).
32
Page: 41
discriminate on the basis of gender, but in fact treat men and women equally, the
district court improperly applied intermediate scrutiny and improperly granted
partial summary judgment to Appellees on their gender discrimination claim. The
district courts gender discrimination ruling should be reversed, and this Court
should hold that Amendment 83 and Arkansass marriage laws do not discriminate
on the basis of gender.
III.

Amendment Requires the State of Arkansas to Recognize SameSex Marriages of other Jurisdictions.
As the Sixth Circuit explained in DeBoer, if it is constitutional for Arkansas

to adhere to the traditional man-woman definition of marriage, then it is
constitutional for Arkansas to decline to recognize same-sex marriages authorized
by other jurisdictions:
Does the Constitution prohibit a State from denying
recognition to same-sex marriages conducted in other
States? . . . Our answer to the first question goes a long
way toward answering this one. If it is constitutional for
a State to define marriage as a relationship between a
man and a woman, it is also constitutional for the State to
stand by that definition with respect to couples married in
other States or countries.
DeBoer, 772 F.3d at 418. Although the plaintiffs in DeBoer did not contend that
the refusal to recognize foreign same-sex marriages violates the Full Faith and
Credit Clause (and neither do Appellees in this case), the Sixth Circuit noted that
the Full Faith and Credit Clause does not require a State to apply another States
33
Page: 42
law in violation of its own legitimate public policy. Id. (citing Nevada v. Hall,
440 U.S. 410, 422 (1979)). The DeBoer plaintiffs instead argued that the failure to
recognize gay marriages celebrated in other jurisdictions violates the Due Process
and Equal Protection Clauses. Id. However, as the Sixth Circuit explained earlier
in the opinion, compliance with due process and equal protection in this setting
requires only a rational relationship between the legislation and a legitimate public
purpose. Id. at 418-19. [A] State does not behave irrationally by insisting upon
its own definition of marriage rather than deferring to the definition adopted by
another State.
Preservation of a States authority to recognize, or opt not to
recognize, an out-of-state marriage preserves a States sovereign interest in

deciding for itself how to define the marital relationship. Id. at 419.
In their operative complaint below, Appellees raised only one claim that
challenged the provisions of Amendment 83 and Arkansas law declining to
recognize same-sex marriages of other jurisdictions the liberty interest claim in
which Appellees challenged Arkansass refusal to recognize [Appellees] valid
out-of-state marriage[.] (App. 46).
The district court declined to reach and
dismissed Appellees liberty interest claim.
(App. 159-160; Add. 36-37).
Appellees have not cross-appealed. It is unclear what basis the district court had
for ordering injunctive relief requiring the State to recognize valid same-sex
marriages of other jurisdictions (App. 170; Add. 47), given that the district court
34
Page: 43
dismissed Appellees only claim connected to that injunctive relief. In any event,
the definition and recognition provisions of Amendment 83 and Arkansass
marriage laws stand or fall together. Because Arkansass definition of marriage is
constitutional, so too is Arkansass decision to decline recognition of same-sex
marriages of other jurisdictions. The district courts injunction requiring Arkansas
to recognize same-sex marriages of other jurisdictions should be reversed.
CONCLUSION
This case is not about how the debate about [marriage] should be resolved.
It is about who may resolve it. Schuette, 134 S. Ct. at 1638. There is no
authority in the Constitution of the United States or in [the United States Supreme
Courts] precedents for the Judiciary to set aside [Arkansas] laws that commit this
policy determination to the voters. Id. (citing Sailors v. Bd. of Ed. of County of
Kent, 387 U.S. 105, 109 (1967)). As the Sixth Circuit explained in DeBoer, it is
[b]etter in this instance . . . to allow change through the customary political
processes, in which the people, gay and straight alike, become the heroes of their
own stories by meeting each other not as adversaries in a court system but as
fellow citizens seeking to resolve a new social issue in a fair-minded way. Id.,
772 F.3d at 421. Thoughtful, dedicated jurists who strive to reach the correct
outcome have considered this issue and arrived at contrary results. This Court
should take a cautious approach, with appropriate deference to the democratic
35
Page: 44
process and domestic relations law of the State of Arkansas. See, e.g., Smith v.
Huckabee, 154 F. Appx 552, 555 (8th Cir. 2005) (declining to exercise
jurisdiction over questions implicating state domestic relations law), citing Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17 (2004).
Both before and after Windsor and the subsequent eruption of marriage
litigation, state citizens have considered the issue of same-sex marriage and,
through legislation, popular referendum, or constitutional amendment, voiced their
views on this question of immense public importance.6
Many other states,
including Arkansas, have used their democratic process to retain the traditional
definition of marriage. The relief requested by Appellees in this case lies in the
democratic process,7 not the judicial branch.
At least 12 states and the District of Columbia have extended the

traditional definition of marriage to include same-sex couples by statute or ballot
initiative. See Cal. Fam. Code 300 (permitting same-sex marriage); Conn. Gen.
Stat. Ann. 46b-20a (same); Del. Code Ann. tit. 13, 129 (same); Haw. Rev. Stat.
572-1 (same); 750 Ill. Comp. Stat. Ann. 5/212 (same); Md. Code Ann., Fam.
Law 2-201 (same); Minn. Stat. Ann. 517.01 (same); N.H. Rev. Stat. Ann. 5C:42 (same); N.Y. Dom. Rel. Law 10 (same); R.I. Gen. Laws Ann. 15-1-1
(same); V.T. Stat. Ann. tit. 15, 8 (same); Wash. Rev. Code Ann. 26.04.010
(same).
7
To that end, two ballot measures that would repeal Amendment 83 have
been certified by the Arkansas Attorney General to appear on the Arkansas ballot.
See Op. Ark. Atty Gen. No. 2013-114 (certifying proposed constitutional
amendment to repeal Amendment 83); Op. Ark. Atty Gen. No. 2013-135
(certifying proposed constitutional amendment to repeal Amendment 83 and
authorize same-sex marriage in Arkansas).
36
Page: 45
Appellees ask the Court to intrude into a debate reserved to the states
political processes. The healthy, spirited, and engaged debate over marriage policy
represents the virtue of democratic self-governance. Appellees seek to shut down
the debate, removing the issue from the public square. This Court should defer to
bedrock principles of constitutional democracy, reverse the district courts grant of
partial summary judgment to Appellees, and affirm the constitutionality of
Arkansas Amendment 83 and Arkansass marriage laws.
Respectfully submitted,
LESLIE RUTLEDGE
Arkansas Attorney General
By: Colin R. Jorgensen

Colin R. Jorgensen, Ark. Bar No. 2004078
323 Center St., Suite 200
(501) 682-3997
Attorneys for Defendants-Appellants.
37
Page: 46
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 9,067 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Office
Word in 14-point Times New Roman font.
The electronic files comprising this brief and filed with the Court have been
scanned and are virus-free, as set forth in Eighth Circuit Rule 28A(h)(2).
/s/ Colin R. Jorgensen

323 Center Street, Suite 200
(501) 682-3997
colin.jorgensen@arkansasag.gov
38
Page: 47
CERTIFICATE OF SERVICE
I, Colin R. Jorgensen, Assistant Attorney General, do hereby certify that on
February 17, 2015, I electronically submitted for filing the foregoing brief with the
Clerk of the Court for the United States Court of Appeals for the Eighth Circuit
via the CM/ECF system. Participants in the case who are registered CM/ECF
users will be served by the CM/ECF system.
/s/ Colin R. Jorgensen

323 Center Street, Suite 200
(501) 682-3997
colin.jorgensen@arkansasag.gov
39
Page: 48

15-1022 Opening Brief

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

15-1022 Opening Brief

Uploaded by

Copyright:

Available Formats

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

DUSTIN McDANIEL, et al.

Appellate Case: 15-1022

Date Filed: 02/17/2015 Entry ID: 4244983

SUMMARY OF THE CASE AND ORAL ARGUMENT REQUEST

The district court granted partial summary judgment to the

The State respectfully requests oral argument of thirty (30)

minutes per side.

Date Filed: 02/17/2015 Entry ID: 4244983

Date Filed: 02/17/2015 Entry ID: 4244983

Date Filed: 02/17/2015 Entry ID: 4244983

Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ........................................ 28 [FN 3]

Date Filed: 02/17/2015 Entry ID: 4244983

U.S. Const. Amend. 14 .....................................................................................passim

Date Filed: 02/17/2015 Entry ID: 4244983

Ark. Code Ann. 9-11-106 ........................................................................... 8 [FN 1]

Op. Ark. Atty Gen. No. 2013-114 .............................................................. 36 [FN 7]

Date Filed: 02/17/2015 Entry ID: 4244983

Date Filed: 02/17/2015 Entry ID: 4244983

The District Court Erred by Concluding that the Fourteenth

Baker v. Nelson, 409 U.S. 810 (1972)

The District Court Erred by Concluding that the Traditional

The District Court Erred by Concluding that the Fourteenth

DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)

Date Filed: 02/17/2015 Entry ID: 4244983

STATEMENT OF THE CASE

Date Filed: 02/17/2015 Entry ID: 4244983

injunction barring enforcement of Arkansass marriage laws, requiring the State

The district court concluded that

Amendment 83 and Arkansass marriage laws impermissibly restrict Appellees

The State filed a notice of appeal on December 23, 2014. (App.

172). The Appellees have not cross-appealed.

Date Filed: 02/17/2015 Entry ID: 4244983

Date Filed: 02/17/2015 Entry ID: 4244983

Date Filed: 02/17/2015 Entry ID: 4244983

cross-appealed the district courts dismissal of four of Appellees six claims.

Date Filed: 02/17/2015 Entry ID: 4244983

SUMMARY OF THE ARGUMENT

This ruling is inconsistent with

Appellees have not cross-

Date Filed: 02/17/2015 Entry ID: 4244983

See also Ark. Code Ann. 9-11-107(b) (stating that Arkansass

Appellate Case: 15-1022

Date Filed: 02/17/2015 Entry ID: 4244983

recognition of certain foreign marriages shall not apply to a marriage between

Arkansas law also expressly prohibits incestuous marriages, declaring them

Date Filed: 02/17/2015 Entry ID: 4244983

Roach, 560 F.3d at 863 (quoting Kennedy Bldg.

Our constitutional system embraces, too, the right of

Date Filed: 02/17/2015 Entry ID: 4244983

Date Filed: 02/17/2015 Entry ID: 4244983

The District Court Erred by Concluding that the Fourteenth

Windsor is a federalism case, not a fundamental-right-to-marry

By history and tradition the definition and regulation of marriage . . . has

Date Filed: 02/17/2015 Entry ID: 4244983

Date Filed: 02/17/2015 Entry ID: 4244983

for purposes of equal protection analysis.

Rather, the Court concluded that

federalism concerns undermined the rationality of a federal law that imposed a

Section 2 of DOMA, which was not at issue in Windsor, explicitly allows

Date Filed: 02/17/2015 Entry ID: 4244983

marital relation is of central relevance to the majoritys decision to strike down