14-5003 Appellant's Opening Brief

Appellate Case: 14-5003
Document: 01019207411
Date Filed: 02/24/2014
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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. 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 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 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
Attorneys for Sally Howe Smith Oral Argument Set for April 17, 2014
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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. II. III. History of Oklahomas Marriage Laws ...........................................................5 Procedural History ...........................................................................................8 The District Courts Decision ..........................................................................9
SUMMARY OF ARGUMENT ...............................................................................14 STANDARD OF REVIEW .....................................................................................20 ARGUMENT ...........................................................................................................20 I. II. Baker Forecloses Plaintiffs Claims. .............................................................20 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 Windsor Emphasizes the States Authority to Define Marriage and Thus Supports the Peoples Right to Enact the Marriage Amendment. ........................................................................................28 1. 2. Windsors Equal-Protection Analysis Does Not Apply Here. ..........................................................................................31 The People Enacted the Marriage Amendment for Legitimate and Compelling Purposes. ......................................33
B.
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C.
Rational-Basis Review Applies to Plaintiffs Claims. ........................37 1. 2. 3. Plaintiffs Claims Do Not Implicate a Fundamental Right. .........................................................................................37 The Marriage Amendment Does Not Impermissibly Discriminate on the Basis of Sex. .............................................41 The Classification Drawn by the Marriage Amendment Is Based on a Distinguishing Characteristic Relevant to the States Interest in Marriage. ......................................................43
D.
The Marriage Amendment Satisfies Rational-Basis Review..............45 1. 2. 3. The Marriage Amendment Furthers Compelling Interests. ......46 The Marriage Amendment Is Rationally Related to Furthering Compelling Interests. ..............................................55 The District Court Erred in its Rational-Basis Analysis...........59
E.
The Marriage Amendment Satisfies Heightened Scrutiny. ................63 1. 2. Legally Redefining Marriage as a Genderless Institution Would Have Real-World Consequences. .................................64 Predictive Judgments about the Anticipated Effects of Redefining Marriage Are Entitled to Substantial Deference. .................................................................................67 A Prior Legal Change to a Fundamental Marital Norm Altered Perceptions about Marriage and Increased Marital Instability......................................................................69 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
3.
4.
ii
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b)
Genderless Marriage Would Undermine the Importance of Both Fathers and Mothers, and That Would Likely Lead to Adverse Consequences for Children and Society. .....................................................74 Genderless Marriage Would Entrench an AdultCentered View of Marriage and Likely Lead to Adverse Consequences for Children and Society. .........75 The District Court Inappropriately Discounted These Arguments. ...........................................................82
c)
d) III.
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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(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.
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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
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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 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
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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.
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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.
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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
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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
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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,
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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).
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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.
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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
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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
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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.
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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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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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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. The Fourteenth Amendment Does Not Forbid the Domestic-Relations 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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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.
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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. 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. 33
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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). 35
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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.). 36
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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 39
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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. The Marriage Amendment Does Not Impermissibly 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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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] 44
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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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(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 50
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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.). 51
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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, at see 7 also available at
http://familyscholars.org/my-daddys-name-is-donor-2/;
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,
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). 53
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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 56
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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. 57
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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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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,
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 61
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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). 62
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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). 64
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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
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 65
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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). 66
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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 1 (Jul. 2007), available at http://
www.marriagedebate.com/pdf/imapp.nofault.divrate.pdf; Allen M. Parkman, Good
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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 Would Likely Lead to Adverse Consequences for 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. 76
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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)
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. 77
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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 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. 82
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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]). 84
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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
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). 85
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sovereign decision should be respected and affirmed. The Fourteenth Amendment does not forbid it. III. Plaintiffs Cannot Satisfy the Causation or Redressability Requirement 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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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.
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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.
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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 Respectfully submitted, 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 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 Attorneys for Sally Howe Smith
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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.
Date: February 24, 2014
s/ Byron J. Babione Byron J. Babione
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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 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.
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CERTIFICATE OF SERVICE 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: Don Gardner Holladay dholladay@holladaychilton.com James Edward Warner, III jwarner@holladaychilton.com Joseph Thai thai@post.harvard.edu Attorneys for Plaintiffs
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ADDENDA 1) 2) District Courts Opinion and Order (Jan. 14, 2014) District Courts Order Correcting Typographical Errors (Jan. 17, 2014)
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ADDENDUM 1
Case 4:04-cv-00848-TCK-TLW Document 272 Filed in USDC ND/OK on 01/14/14 Page 1 of 68 Appellate Case: 14-5003 Document: 01019207412 Date Filed: 02/24/2014 Page: 2
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA MARY BISHOP, SHARON BALDWIN, SUSAN BARTON, and GAY PHILLIPS, Plaintiffs, v. UNITED STATES OF AMERICA, ex rel. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States of America; and SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendants, BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
No. 04-CV-848-TCK-TLW
OPINION AND ORDER This Order addresses challenges to state and federal laws relating to same-sex marriage. The Court holds that Oklahomas constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Court lacks jurisdiction over the other three challenges. I. Factual Background This case involves challenges to: (1) both sections of the federal Defense of Marriage Act (DOMA), codified at 28 U.S.C. 1738C and 1 U.S.C. 7; and (2) two subsections of an amendment to the Oklahoma Constitution, which are set forth in article 2, section 35(A)-(B) (the
Oklahoma Constitutional Amendment). Constitution. A. DOMA
All challenges arise exclusively under the U.S.
DOMA, which became law in 1996, contains two substantive sections. Section 2 of DOMA, entitled Powers Reserved to the States, provides: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. Defense of Marriage Act 2, 28 U.S.C. 1738C. Section 3 of DOMA, entitled Definition of Marriage, provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. Id. 3, 1 U.S.C. 7. This federal definition, which was declared unconstitutional during the pendency of this lawsuit, informed the meaning of numerous federal statutes using the word marriage or spouse and functioned to deprive same-sex married couples of federal benefits. See United States v. Windsor, 133 S. Ct. 2675, 2683 (2013) (striking down DOMAs definition of marriage, which controlled over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law, as a violation of the Fifth Amendment to the U.S. Constitution).
B.
Oklahoma Constitutional Amendment
On November 2, 2004, Oklahoma voters approved State Question No. 711 (SQ 711), which was implemented as article 2, section 35 of the Oklahoma Constitution.1 The Oklahoma Constitutional Amendment provides: Marriage Defined Construction of Law and Constitution Recognition of Outof-State Marriages - Penalty A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.2 B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.3 C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor. Okla. Const. art. 2, 35 (footnotes added). Part A of the Oklahoma Constitutional Amendment (Part A) is the definitional provision, which provides that marriage in Oklahoma shall consist only of the union of one man and one woman. Part B of the Oklahoma Constitutional Amendment (Part B) is the non-recognition provision, which provides that same-sex marriages performed
SQ 711 passed by a vote of 1,075,216 to 347,303. (See Smiths Cross Mot. for Summ.
J., Ex. 3.) An Oklahoma statute also prevents same-sex couples from marrying. Okla. Stat. tit. 43, 3(A) (Any unmarried person who is at least eighteen (18) years of age and not otherwise disqualified is capable of contracting and consenting to marriage with a person of the opposite sex) (emphasis added). This statute is not challenged. An Oklahoma statute also prevents recognition of same-sex marriages. Okla. Stat. tit. 43, 3.1 (A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.). This statute is not challenged. 3
3 2
in other states shall not be recognized as valid and binding in Oklahoma. Only Parts A and B are challenged in this lawsuit. C. Procedural History4
In late 2004, Plaintiffs Mary Bishop and Sharon Baldwin (Bishop couple) and Susan Barton and Gay Phillips (Barton couple), two lesbian couples residing in Oklahoma, filed a Complaint seeking a declaration that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution. In August 2006, the Court denied a motion to dismiss filed by the Oklahoma Attorney General and Oklahoma Governor, rejecting their sovereign immunity argument. See Bishop I, 447 F. Supp. 2d at 1255 (holding that suit was proper against these officials under the Ex parte Young doctrine). The state officials appealed this Courts denial of sovereign immunity, and the Court stayed the proceedings pending appeal. On June 5, 2009, the Tenth Circuit issued an unpublished decision reversing this Courts failure to dismiss the claims against the Oklahoma officials and remanding the case for entry of an order dismissing these claims for lack of subject matter jurisdiction. See Bishop II, 2009 WL 1566802, at *4. The Tenth Circuits reversal was based on Plaintiffs lack of standing to pursue their claims against the named state officials:5
This case has a lengthy procedural history. See Bishop v. Okla. ex rel. Edmondson, 447 F. Supp. 2d 1239 (N.D. Okla. 2006) (Bishop I); Bishop v. Okla. ex rel. Edmondson, No. 065188, 2009 WL 1566802 (10th Cir. June 5, 2009) (Bishop II); Bishop v. United States, No. 04CV-848, 2009 WL 4505951 (N.D Okla. Nov. 24, 2009) (Bishop III). In this Opinion and Order, the Court only includes background facts that are relevant to the currently pending motions. Because standing was not raised on appeal, the Tenth Circuit examined it sua sponte. (See id. at *2.) 4
5
The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. See Okla. Stat. Ann. tit. 28, 31; Okla. Stat. Ann. tit. 43, 5. [A] district court clerk is judicial personnel and is an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerks ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerks administrative district. Speight v. Presley, 203 P.3d 173, 177 (Okla. 2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahomas government has no authority to issue a marriage license or record a marriage. Moreover, even if the Attorney General planned to enforce the misdemeanor penalty (a claim not made here), that enforcement would not be aimed toward the Couples as the penalty only applies to the issuer of a marriage license to a same-sex couple. Thus, the alleged injury to the Couples could not be caused by any action of the Oklahoma officials, nor would an injunction (tellingly, not requested here) against them give the Couples the legal status they seek. Id. at *3 (footnote omitted). Following remand, Plaintiffs retained new counsel and were granted leave to file an Amended Complaint. As implicitly directed by Bishop II, Plaintiffs sued the Tulsa County Court Clerk in place of the previously named officials. Specifically, Plaintiffs sued State of Oklahoma, ex rel. Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County, alleging: [Sally Howe Smith] is sued in her official capacity as Clerk of Tulsa County District Court. Pursuant to state law, she is the designated agent of the State of Oklahoma given statutory responsibility for issuing and recording marriage licenses. (Am. Compl. 7.) The State of Oklahoma filed a second motion to dismiss, again asserting its immunity and arguing that it should be dismissed as a nominal party to the case. The Court granted this motion and dismissed the State of Oklahoma as a nominal party. See Bishop III, 2009 WL 4505951, at *3. Thus, the current Defendants to the lawsuit are: (1) United States of America, ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America
(United States); and (2) Sally Howe Smith (Smith), in her official capacity as Court Clerk for Tulsa County, State of Oklahoma. Smith is represented by the Tulsa County District Attorneys Office and attorneys with an organization known as the Alliance Defending Freedom. Smith and the United States filed motions to dismiss the Amended Complaint. The United States based its motion, in part, on the Barton couples lack of standing to challenge Section 3 of DOMA.6 The Court ordered the Barton couple to provide more particularized facts regarding the federal benefits that were allegedly desired and/or sought but that were unavailable and/or denied as a result of Section 3. After the Barton couple submitted supplemental affidavits, the United States conceded that the Barton couple had standing to challenge Section 3 and abandoned this section of its motion to dismiss. On February 25, 2011, prior to the Courts issuing a decision on the pending motions to dismiss, the United States notified the Court that it would cease defending the constitutionality of Section 3 of [DOMA], thereby abandoning other portions of its previously filed motion to dismiss. (See Not. to Court by United States of Am. 1.) The United States informed the Court of the possibility that members of Congress would elect to defend Section 3. On July 21, 2011, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) filed a motion to intervene as a defendant for the limited purpose of defending Section 3. (See Mot. of BLAG to Intervene 1.) The Court permitted BLAG to intervene pursuant to Federal Rule of Civil Procedure 24(b)(1)(A) and referred the matter to Magistrate Judge T. Lane Wilson for a scheduling conference. Magistrate Judge Wilson conducted the conference and entered an agreed schedule.
The Barton couple challenges both sections of DOMA and both sections of the Oklahoma Constitutional Amendment. The Bishop couple challenges only Part A of the Oklahoma Constitutional Amendment. 6
Smith and the United States withdrew their previously filed motions to dismiss, and the briefing process began anew. Although the Court did not issue a formal stay of the proceedings, the Court was aware that the United States Supreme Court had granted certiorari in two cases presenting nearly identical issues to those presented here namely, the constitutionality of Section 3 of DOMA and the constitutionality of Proposition 8, a California ballot initiative amending the California Constitution to define marriage as between a man and a woman. The Court delayed ruling in this case pending the Supreme Courts decisions. On June 26, 2013, the Supreme Court issued its heavily anticipated decisions in United States v. Windsor, 133 S. Ct. 2675 (2013) (addressing Section 3 of DOMA), and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (addressing Proposition 8). In Windsor, the Supreme Court held that Section 3 of DOMA violates basic due process and equal protection principles applicable to the Federal Government. Windsor, 133 S. Ct. at 2693-94. This holding renders moot the Barton couples challenge to Section 3. See infra Part III. In Hollingsworth, the Supreme Court held that the official proponents of Proposition 8 lacked standing. See Hollingsworth, 133 S. Ct. at 2662-68 (reasoning that the proponents of Proposition 8 had not been ordered to do or refrain from doing anything by the trial court and that [t]heir only interest in having the district courts holding reversed was to vindicate the constitutional validity of a generally applicable California law). Therefore, the Court did not reach the constitutionality of Proposition 8. D. Barton Couple
Plaintiffs Susan Barton and Gay Phillips have resided in Oklahoma for over fifty years and currently own a home in Tulsa, Oklahoma. They also own Barton, Phillips, and Associates, Inc.,
a company that provides training to agencies serving homeless teens. Ms. Phillips has a doctorate degree in sociology, and Ms. Barton is an adjunct professor at Tulsa Community College, where she teaches courses on Building Relationships and Teaching Discipline. The Barton couple has been in a continuous, committed relationship since November 1, 1984. They were united in a Vermont civil union in 2001 and were married in Canada on May 16, 2005. On November 1, 2008, prior to filing their Amended Complaint, they were issued a marriage license by the State of California and married under California law.7 As a same-sex couple that has been legally married in the United States, the Barton couple challenges Sections 2 and 3 of DOMA as violative of equal protection and substantive due process rights guaranteed by the Fifth Amendment to the U.S. Constitution. The Barton couple seeks a declaratory judgment that DOMA is unconstitutional and a permanent injunction restraining enforcement of DOMA. As a same-sex couple that is denied the right to marry in Oklahoma, the Barton couple challenges Part A of the Oklahoma Constitutional Amendment as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution. The Barton couple also challenges Part B, which prohibits recognition of their California marriage in Oklahoma, as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment.8 As remedies, the Barton couple seeks a declaratory
7
When this Court issued its decision in Bishop I, the Barton couple had entered into a Vermont civil union and a Canadian marriage. The Court held that neither relationship was treated as a marriage in another State and that the Barton couple lacked standing to challenge Section 2. See Bishop I, 447 F. Supp. 2d at 1245-49. In their Amended Complaint, the Barton couple includes allegations regarding their California marriage. During the scheduling conference, Magistrate Judge Wilson raised the question of whether the Amended Complaint asserted a challenge to Part B. The Barton couple asserted that they intended to challenge Part B in their Amended Complaint and desired to address Part B in their summary judgment brief. Smith did not object. Therefore, based on certain allegations in 8
8
judgment that Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution and a permanent injunction enjoining enforcement of Parts A and B. E. Bishop Couple
Plaintiffs Mary Bishop and Sharon Baldwin have resided in Oklahoma throughout their lives and own a home in Broken Arrow, Oklahoma. They also jointly own a 1.3-acre lot in Osage County, Oklahoma. Ms. Bishop is an assistant editor at the Tulsa World newspaper, and Ms. Baldwin is a city slot editor at the Tulsa World. The Bishop couple has been in a continuous, committed relationship for over fifteen years and exchanged vows in a commitment ceremony in Florida in 2000. On February 13, 2009, the Bishop couple sought the issuance of a marriage license from Smith. Smith refused them a marriage license based upon their status as a same-sex couple. As a same-sex couple that is denied the right to marry in Oklahoma, the Bishop couple challenges Part A of the Oklahoma Constitutional Amendment as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution. The Bishop couple seeks a declaratory judgment that Part A is unconstitutional and a permanent injunction enjoining enforcement of Part A. F. Pending Motions
This Order substantively addresses the following pending motions: (1) the United States motion to dismiss, in which the United States argues that the Barton couple lacks standing to challenge Section 2;9 (2) the Barton couples motion for entry of final judgment as to Section 3,
the body of the Amended Complaint and Smiths lack of objection, the Court construes the Amended Complaint as also challenging Part B. The United States motion to dismiss only attacks standing and does not offer any defense of Section 2 on the merits. BLAG intervened for the limited purpose of defending the constitutionality of Section 3. Therefore, the only opposition to the Barton couples challenge to 9
9
which they filed following the Windsor decision; (3) Plaintiffs Motion for Summary Judgment, in which Plaintiffs argue that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution; and (4) Smiths Cross Motion for Summary Judgment, in which Smith argues that the Barton couple lacks standing to challenge Part B, and that Parts A and B do not violate the U.S. Constitution. The Court holds: (1) the Barton couple lacks standing to challenge Section 2 of DOMA; (2) the Barton couples challenge to Section 3 of DOMA is moot; (3) the Barton couple lacks standing to challenge Part B of the Oklahoma Constitutional Amendment; (4) the Bishop couple has standing to challenge Part A of the Oklahoma Constitutional Amendment;10 and (5) Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. II. Barton Couple Lacks Standing to Challenge Section 2 of DOMA In its motion to dismiss, the United States argues that the Barton couple lacks standing to challenge Section 2 because any inability to secure recognition of their [California] marriage in Oklahoma would be attributable, not to the United States, but to the appropriate Oklahoma state official. (United States Mot. to Dismiss 2.)11
Section 2 is the United States standing argument. The Court reaches the merits of Part A based upon the Bishop couples standing and does not reach the question of whether the Barton couple also has standing to challenge Part A. See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981) (Because we find [one plaintiff] has standing, we do not consider the standing of the other plaintiffs.). As explained infra Part IV, Smith testified that she is not the state official connected to recognition of out-of-state marriages, and the Barton couple failed to controvert this evidence. Thus, the identity of the appropriate State official remains unclear. 10
11 10
A.
Purpose of Section 2
Preliminary discussion of the purpose and legislative history of Section 2 is warranted. Relevant to this case, Section 2 provides that no state shall be required to give effect to a marriage license of any other state if the marriage is between persons of the same sex. 28 U.S.C. 1738(C). According to the House Report preceding DOMAs passage, the primary purpose of Section 2 was to protect the right of the States to formulate their own public policy regarding legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexual couples to acquire marriage licenses. See H.R. Rep. No. 104664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906. Congress was concerned that if Hawaii (or some other State) recognizes same-sex marriages, other States that do not permit homosexuals to marry would be confronted with the complicated issue of whether they are nonetheless obligated under the Full Faith and Credit Clause of the United States Constitution to give binding legal effect to such unions. Id. at 2913. The House Judiciary Committee (Committee) determined that states already possessed the ability to deny recognition of a same-sex marriage license from another state, so long as the marriage violated a strong public policy of the state having the most significant relationship to the spouses at the time of the marriage. Id. However, the Committee also expressed its view that such conclusion was far from certain. Id. at 2914; see also id. at 2929 (While the Committee does not believe that the Full Faith and Credit Clause, properly interpreted and applied, would require sister states to give legal effect to same-sex marriages celebrated in other States, there is sufficient uncertainty that we believe congressional action is appropriate.). In order to address this uncertainty, Congress invoked its power under the second sentence of the U.S. Constitutions Full Faith and Credit Clause (the Effects Clause), which permits 11 More specifically,
Congress to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States. Id. at 2929. The Committee described Section 2 as a narrow, targeted relaxation of the Full Faith and Credit Clause. Id. at 2932. Consistent with this legislative history, Section 2 has been described by courts and commentators as permitting states to refuse to give full faith and credit to same-sex marriages performed in another state. See Windsor, 133 S. Ct. at 2682-83 (Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.); Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir. 2006) (explaining that Section 2, in effect, indicates that no state is required to give full faith and credit to another states determination that a relationship between persons of the same sex . . . is treated as a marriage); Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 378 (D. Mass. 2010) (In enacting Section 2 of DOMA, Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage.) (footnote omitted); Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468, 1532 (2007) (Section 2s purpose, evident from its terms, is to ensure that states will not be required to recognize same-sex marriage by virtue of the Full Faith and Credit Clause.).12 Since DOMAs passage, some scholars have concluded that Section 2 was unnecessary and simply reiterates a power that states already possessed. See Joshua Baker & William Duncan, As Goes DOMA . . . Defending DOMA and the State Marriages Measures, 24 Regent Univ. L. Rev. 1, 8 (2011-2012) (Over time, something of a consensus seems to have developed among scholars that Section 2 of DOMA merely restates existing conflicts of law principles with respect to interstate recognition of a legal status or license . . . .); William Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371, 1392 (2012) (Section 2 of DOMA is expressly intended to ratify such [state public] policies (if any ratification were needed).); Mary L. Bonauto, DOMA Damages Same-Sex Families and Their Children, 32 Fam. Adv. 10, 12 (Winter 2010) ([S]tates have long possessed the power to decide which marriages they would respect from elsewhere, a power that both proponents and opponents of DOMA agree existed before and after DOMA.); Patrick Borchers, The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate, 38 Creighton Law R. 353, 358 (2005) (arguing that Section 2 of DOMA was unnecessary because it simply 12
12
B.
Standing Analysis
The Barton couple bears the burden of proving that there is an actual case or controversy regarding Part B. See Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 756 (10th Cir. 2010) (Article III of the Constitution limits the jurisdiction of federal courts to actual cases or controversies.). This jurisdictional requirement is known as standing. To establish standing, plaintiffs bear the burden of demonstrating that they have suffered an injury-in-fact which is concrete and particularized as well as actual or imminent; that the injury was caused by the challenged [laws]; and that the requested relief would likely redress their alleged injuries. Id. This three-pronged inquiry seeks to resolve three questions: Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? Allen v. Wright, 468 U.S. 737, 752 (1984). For purposes of standing, the Court examines the allegations in the Amended Complaint. See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (explaining that, where an original pleading has been amended, a court looks to the amended complaint in assessing a plaintiffs claims, including the allegations in support of standing). Because the United States standing states what the law would be without it and that full faith and credit principles do not require one state to give effect to a marriage celebrated in another state); Metzger, supra, at 1532 ([I]t is unlikely that a states refusal to recognize same-sex marriages would have violated Article IVs full faith and credit demand even absent DOMA, at least as applied to same-sex marriage involving state residents.); Mark Strasser, As Iowa Goes, So Goes the Nation: Varnum v. Brien and its Impact on Marriage Rights for Same-Sex Couples, 13 J. Gender Race & Justice 153, 158 (Fall 2009) ([E]ven without DOMA, states could have refused to recognize their domicilaries marriages validly celebrated elsewhere if such marriages violated an important public policy of the domicile. Thus, DOMA did not give states a power that they did not already possess with respect to the power to refuse to recognize domiciliaries marriages that had been celebrated elsewhere in accord with the latter statess law.). 13
attack was made at the Rule 12(b)(6) stage, the Court accept[s] the allegations in the [Amended Complaint] as true for purposes of [its] standing analysis. United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001). Further, the Court must presume that general allegations embrace those specific facts that are necessary to support the claim. Lewis v. Casey, 518 U.S. 343, 358 (1996) (internal citation omitted). The Court construes the Amended Complaint as alleging three injuries flowing from Section 2. First, the Barton couple alleges the injury of being unable to obtain recognition of their California marriage in Oklahoma (non-recognition). (See Am. Compl. 20.) Second, they allege the injury of unequal treatment, flowing from the United States erection of Section 2 as a barrier to obtaining the benefit of recognition of their California marriage in Oklahoma (unequal treatment). (See id. 12; see also Pls. Resp. to Mot. to Dismiss 12 (arguing that [Section 2] operates as such a barrier in that it officially sanctions the denial of equal treatment of Plaintiffs marriage and the attendant recognition/status that springs from such recognition).) Finally, they allege the injury of stigma and humiliation. (See Am. Compl. 22; see also Pls. Resp. to Mot. to Dismiss 11-12 ([Plaintiffs] have a second-class marriage in the eyes of friends, neighbors, colleagues, and the United States of America.).) 1. Non-Recognition
The Court concludes that neither Section 2, nor the U.S. Attorney Generals enforcement thereof, plays a sufficient causation role leading to the Barton couples alleged injury of nonrecognition of their California marriage in Oklahoma.13 Section 2 is an entirely permissive federal The United States also argues that the Baron couple has not suffered an injury in fact based upon their failure to have actually sought and been denied recognition of their California marriage in Oklahoma. (See United States Mot. to Dismiss 5.) For purposes of this motion, the Court assumes without deciding that the Barton couples alleged injuries constitute injuries in 14
13
law. 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 . . . that is treated as a marriage under the laws of such other State . . . .). It does not mandate that states take any particular action, does not remove any discretion from states, does not confer benefits upon non-recognizing states, and does not punish recognizing states. The injury of non-recognition stems exclusively from state law namely, Part B and title 43, section 3.1 of the Oklahoma Statutes and not from the challenged federal law. Cf. Gillespie v. City of Indianapolis, 13 F. Supp. 2d 811, 818 (S.D. Ind. 1998) (city police officer was convicted of domestic violence crime, prohibited by federal law from carrying firearm, and then threatened with termination by the city) (court held that injury of threatened termination was fairly traceable to federal firearm law because a firearms disability operates as virtually a total bar to employment as a police officer and because any decision by local officials to fire the plaintiff stems from the federal statute and not the exercise of independent discretion). In contrast to the federal firearms prohibition, essentially mandating an officers termination in Gillespie, Section 2 does not remove any local, independent discretion and is not a fairly traceable cause of the Barton couples non-recognition injury. See generally Bonauto, supra note 12, at 13 (explaining that [l]egal challenges to section 2 of DOMA have been few, and none have succeeded, at least in part because it is the states nonrecognition law that presents the impediment to recognition, not section 2 itself). The Barton couples reliance on Bennet v. Spears, 520 U.S. 154 (1997), is misplaced. In Bennet, the Supreme Court addressed whether the injury of reduced water for irrigation was fairly traceable to a Biological Opinion authored by the Fish and Wildlife Service, where another agency
fact but concludes that none were sufficiently caused by Section 2. 15
actually issued the final decision regarding the volume of water allocated. Id. at 168-71. The Biological Opinion, although not the very last step in the chain of causation, had a powerful coercive effect and a virtually determinative effect on the action ultimately taken by the other agency. See id. at 169. While the other agency was technically free to disregard the Biological Opinion, it would do so at its own peril, including civil and criminal penalties. Id. at 170. In contrast to the Biological Opinion, Section 2 does not have any coercive or determinative effect on Oklahomas non-recognition of the Barton couples California marriage. At a maximum, it removes a potential impediment to Oklahomas ability to refuse recognition namely, the Full Faith and Credit Clause. See supra Part III(A) (explaining Section 2s purpose); note 12 (explaining that Full Faith and Credit Clause may not actually be an impediment). A federal law that removes one potential impediment to state action has a much weaker causation link than a federal agency opinion that has a coercive effect on another federal agencys action. The Court must address dicta in Bishop I that is inconsistent with the above reasoning regarding Section 2. In 2006, this Court addressed standing issues sua sponte and implied that, if the Barton couple obtained legal status that was treated as a marriage in another state, they would have standing to challenge Section 2. See Bishop I, 447 F. Supp. 2d at 1246 (describing Section 2 as preventing, or at least arguably preventing the Barton couple from obtaining legal recognition in Oklahoma). The Courts use of the phrase prevents, or at least arguably prevents was in error. Section 2 does not prevent or even arguably prevent Oklahoma from recognizing the Barton couples California marriage. At most, Section 2 removes one potential impediment to a states
16
ability to refuse recognition of the marriage. Therefore, the Courts dicta in Bishop I has been reconsidered and is superseded by this Opinion and Order.14 2. Unequal Treatment
The Barton couple also alleges the injury of unequal treatment resulting from the imposition of Section 2 as a barrier to the benefit of recognition of their California marriage. In certain equal protection cases, the right being asserted is not the right to any specific amount of denied governmental benefits; it is the right to receive benefits distributed according to classifications which do not without sufficient justification differentiate among covered applicants solely on the basis of [impermissible criteria]. See Day v. Bond, 500 F.3d 1127, 1133 (10th Cir. 2007) (quoting Heckler v. Mathews, 465 U.S. 728, 737 (1984)). In such cases, the injury in fact . . . is the denial of equal treatment resulting from the imposition of the [allegedly discriminatory] barrier, not the ultimate inability to obtain the benefit. Ne. Fla. Ch. of the Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666 (1993); Day, 500 F.3d at 1133 (explaining that the injury in such cases is the imposition of the barrier itself). Although these standing principles are most commonly applied to competitive benefit programs, i.e., those for which there are a limited number of beneficiaries, the Tenth Circuit has also applied such principles to non-competitive benefit programs. See Day, 500 F.3d at 1131-35 (applying equal opportunity standing analysis to equal protection challenge to Kansas statute setting rules for receipt of in-state tuition at state universities). The Barton couple incorrectly argues that this dicta is controlling. The Barton couple filed an Amended Complaint, which renders moot this Courts analysis of standing allegations in the original Complaint. See Mink, 482 F.3d at 1254. Further, the Court has an independent obligation to satisfy itself of standing at all stages of the proceedings, see City of Colo. Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1078-79 (10th Cir. 2009), and this necessarily includes reconsideration of prior reasoning. 17
14
The Court concludes that these discriminatory barrier cases are not applicable due to the permissive nature of Section 2. As explained above, Section 2 is not an allegedly discriminatory policy that Oklahoma must follow in deciding what marriages to recognize, and it does not stand as any significant obstacle between the Barton couple and recognition of their California marriage in Oklahoma. Cf. Ne. Fla. Ch. of the Associated Gen. Contractors of Am., 508 U.S. at 666 (minority set-aside program was barrier to non-minority gaining government contracts, the removal of which would have allowed non-minorities to compete equally); Turner v. Fouche, 396 U.S. 346, 361-64 (1970) (law limiting school board membership to property owners was barrier to non-property owners gaining election to school board, the removal of which would have allowed non-property owners to compete equally); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 493 (10th Cir. 1998) (policy favoring long-term residents was barrier to short-term resident gaining access to medical school, the removal of which would have allowed short-term residents to compete equally). These cases are particularly unhelpful to the Barton couple because they have not challenged Part B of the Oklahoma Constitutional Amendment (which prohibits recognition and is the more direct cause of their injury) as violating the Full Faith and Credit Clause (which is the impediment to Part Bs legality that Section 2 potentially alleviates). Instead, they only challenged Part B as violative of their equal protection and substantive due process rights. 3. Stigma
The Barton couple also alleges that the mere existence of Section 2 separate from any impact it has on their legal status as married or unmarried causes ongoing stigmatic harm by indicating that their same-sex marriage is second-class. Stigmatic injuries are judicially
cognizable in certain circumstances, particularly those involving racial discrimination. See Allen,
18
468 U.S. at 755 (explaining that stigmatizing injury often caused by racial discrimination is a sort of noneconomic injury that is sufficient in some circumstances to support standing); Wilson v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 (10th Cir. 1996) (explaining that stigmatizing injury often caused by racial discrimination can be sufficient in some circumstances to support standing and applying concept to advertising scheme that allegedly discriminated based upon gender). Assuming these cases extend to stigmatic injuries to non-suspect classes, see infra Part VI(D)(2)(a) (concluding that same-sex couples desiring a marriage license are not a suspect class), the stigma still must be causally linked to some concrete interest discriminatorily impaired by Part B of the Oklahoma Constitutional Amendment. See Allen, 468 U.S. at 757 n.22 (explaining that a plaintiff premising standing on a stigmatic injury must (1) identify some concrete interest with respect to which [she is] personally subject to discriminatory treatment[;] and (2) show that this concrete interest independently satisf[ies] the causation requirement of standing doctrine). For the same reasons explained above, Section 2 lacks a sufficient causal link to any stigmatic injury the Barton couple is suffering due to non-recognition of their California marriage. The stigmatic harm flows most directly from Oklahoma law and is only possibly strengthened in some manner by Section 2. Therefore, the Barton couples allegations do not establish standing to challenge Section 2, and this claim is dismissed for lack of jurisdiction.15 The United States also argues that the Barton couples alleged stigmatic injury is not cognizable because it is merely a psychological consequence presumably produced by observation of conduct. (See United States Reply in Support of Mot. to Dismiss 4 (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 485 (1982), and also relying upon Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803, 806-08 (7th Cir. 2011).) However, the Courts holding is premised on the Barton couples inability to show causation. The Court is not persuaded that the United States cited cases would extend to the more personal type of injury alleged here. Cf. Freedom from Religion Found. Inc., 641 F.3d at 806-08 (concluding that the perceived slight or feeling of exclusion suffered by one of many observers of President Obamas remarks during National Day of Prayer did not 19
15
III.
Barton Couples Challenge to Section 3 of DOMA Is Moot The Barton couple moves for entry of a final judgment on their challenge to Section 3 in light
of the Supreme Courts decision in Windsor. The United States argues that Windsor moots the Barton couples Section 3 challenge and that the Court lacks jurisdiction over this challenge. A. Mootness Standard
Mootness, like standing, is a jurisdictional doctrine originating in Article IIIs case or controversy language. WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012). Thus, a court must decline to exercise jurisdiction where the award of any requested relief would be moot, i.e. where the controversy is no longer live and ongoing. Wirsching v. Colo., 360 F.3d 1191, 1196 (10th Cir. 2004). The defendant bears the burden of proving mootness, WildEarth Guardians, 690 F.3d at 1183, and this burden is a heavy one, Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012). If a defendant carries its burden of showing mootness, a court lacks subject matter jurisdiction. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). B. Prayer for Relief
In their prayer for relief, the Barton couple seeks a declaration that [Section 3 of DOMA] violate[s] the U.S. Constitutions Equal Protection and substantive Due Process Rights of Plaintiffs Barton and Phillips. (Am. Compl. 10.) They also seek an award of their attorney fees and costs in prosecuting this action and [s]uch other relief deemed proper. (Id.) The Court will analyze each request to determine if any live and ongoing controversy remains following the Windsor decision.
confer standing). 20
1.
Declaratory Relief
[W]hat makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff. Rio Grande Silvery Minnow, 601 F.3d at 1109-10. The crucial question is whether granting a present determination of the issues offered will have some effect in the real world. Id. at 1110 (internal citation omitted); see also Rezaq, 677 F.3d at 1008 ([I]n the context of an action for declaratory relief, a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant.); Wirsching, 360 F.3d at 1196 (same). The Court concludes that there is no longer any live or ongoing controversy as to the Barton couples request for declaratory relief regarding Section 3. In Windsor, the Supreme Court held that Section 3 violates basic due process and equal protection principles applicable to the Federal Government. Windsor, 133 S. Ct. at 2693-94 (reasoning that DOMAs principal effect is to identify a subset of state-sanctioned marriages and make them unequal). As a general rule, where a law has been declared unconstitutional by a controlling court, pending requests for identical declaratory relief become moot. Thayer v. Chiczewski, 705 F.3d 237, 256-57 (7th Cir. 2012) (claim for declaratory and injunctive relief moot in light of Seventh Circuits invalidation of challenged law in another case); Longley v. Holahan, 34 F.3d 1366, 1367 (8th Cir. 1994) (claim moot where challenged statute was declared unconstitutional in companion case); Eagle Books, Inc. v. Difanis, 873 F.2d 1040, 1042 (7th Cir.1989) (claim moot where state supreme court had declared challenged statute unconstitutional); see also Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir. 2004) (claim moot where challenged statute was repealed). Because Section 3 has
21
already been declared unconstitutional by the Supreme Court, an identical declaration by this Court will have no further impact on the United States actions.16 Second, the United States has presented compelling evidence that, following Windsor, it has ceased to enforce Section 3 and that the Barton couple will suffer no further injury as a result of Section 3. In Revenue Ruling 2013-17, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) provided guidance on the effect of the Windsor decision on the [IRS] interpretations of the [federal tax code] that refer to taxpayers marital status, stating that individuals of the same sex will be considered to be lawfully married under the Code as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex, even if they are domiciled in a state that does not recognize the validity of same-sex marriages. (Rev. Ruling 2013-17, 2013-381.R.B.28 (emphasis added), Ex. B to United States Not. of Admin. Action.) In a news release, the IRS stated that same sex couples will be treated as married for all federal tax purposes, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit. (I.R.S. News Release, IR-2013-72 (Aug. 29, 2013), Ex. A to United States Not. of Admin. Action.) Thus, Section 3 of DOMA will no longer be used to deprive the Barton couple of married status for any federal tax purpose because (1) they have a legal California marriage, and (2) Oklahomas non-recognition of such marriage is irrelevant for federal tax
BLAG, the only party defending the constitutionality of Section 3, has stated that the Supreme Court recently held that DOMA Section 3 is unconstitutional and that its justification for participating in this case . . . has disappeared. (BLAGs Unopposed Mot. to Withdraw 1-2.) BLAGs disinterest in any further defense of Section 3 supports the Courts conclusion that its entry of a declaratory judgment would have no effect. 22
16
purposes. Any ongoing threat of injury based upon deprivation of married status for tax purposes has been rendered moot by Windsor and the IRS response thereto.17 In their evidentiary proffers regarding standing to challenge Section 3, the Barton couple asserts harms other than adverse tax consequences, such as an inability to plan for Social Security survivor benefits. The Barton couple argues that Windsor may affect the interpretation of the word married by other federal agencies and that this Court must ensure that the Barton couple reaps the full benefit of the Windsor decision. However, all evidence before the Court indicates that Section 3 will no longer be used to deprive married same-sex couples of federal benefits that are bestowed upon married opposite-sex couples, even when those couples live in non-recognizing states such as Oklahoma. The Windsor decision changed the legal landscape in such a drastic manner that the Barton couple no longer faces any reasonable threat of being denied equal protection of federal laws related to marriage. Were the Court to issue a declaratory judgment, it would be issuing an opinion based on a hypothetical application of Section 3 that is no longer likely to occur. See Rio Grande Silvery Minnow, 601 F.3d at 1117 (A case ceases to be a live controversy if the possibility of recurrence of the challenged conduct is only a speculative contingency.) (alterations and citation omitted). 2. Attorney Fees and Costs
The Barton couple also requests attorney fees and costs. However, the possibility of recovering attorney fees or costs is not a sufficient reason to enter judgment in an otherwise moot This is not a case in which the United States is showing any reluctant submission to complying with Windsor. See Rio Grande Silvery Minnow, 601 F.3d at 1116 (explaining that a case may not be moot if a governmental actor is showing reluctant submission or a desire to return to the old ways). The United States has given every indication that the Supreme Courts ruling will be implemented in a manner that ceases to cause the Barton couple any injury related to payment of federal income taxes. 23
17
case. See R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1108 (10th Cir. 2007) (explaining that a claim of entitlement to attorney fees does not preserve a moot cause of action); In re West. Pac. Airlines, Inc., 181 F.3d 1191, 1196 (10th Cir. 1999) (Precedent clearly indicates that an interest in attorneys fees is insufficient to create an Article III case or controversy where a case or controversy does not exist on the merits of the underlying claim.); 13C Charles Alan Wright, et al., Federal Practice and Procedure 3533.3 (3d ed. 2008) (If the action is mooted before any decision on the merits by the trial court, a statute that awards fees to the prevailing party does not justify decision on the merits in order to determine if that party would have prevailed absent mootness.) (Claims for costs traditionally have not been thought sufficient to avoid mootness, presumably on the theory that such incidental matters should not compel continuation of an otherwise moribund action.). 3. Other Relief Deemed Proper
The Barton couple does not expressly request money damages as relief. However, they urge the Court to construe their request for other relief deemed proper as a request for money damages. They are now urging this construction because, unlike claims for declaratory or injunctive relief, claims for damages are not mooted by subsequent events. See In re West. Pac. Airlines, Inc., 181 F.3d at 1196 (explaining that, although declaratory and injunctive relief was rendered moot by a defendants release from prison, a damages claim was still viable because it would alter the defendants behavior by forcing them to pay money); Charles Alan Wright, et al., supra, 3533.3 (Untold number of cases illustrate the rule that a claim for money damages is not moot, no matter how clear it is that the claim arises from events that have completely concluded without any prospect of recurrence.). In the Tenth Circuit, this same rule applies to claims for nominal damages. Utah Animal Rights Coal., 371 F.3d at 1257-58 (It may seem odd that a complaint for nominal damages
24
could satisfy Article IIIs case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held.) (internal footnotes omitted). The Court does not construe the other relief deemed proper language as a request for compensatory or nominal damages against the United States for three reasons. First, the Barton couple has repeatedly argued, in response to certain ripeness and standing deficiencies raised by BLAG, that their Section 3 injury was not any specific denial of monetary benefits but was instead the ongoing injury of unequal access and/or unequal treatment caused by Section 3. (See, e.g., Pls. Resp. to BLAGs Cross Mot. for Summ. J. (containing heading entitled BLAGs Argument Regarding Standing is Without Merit, as Plaintiffs Do Not Request Monetary Damages and DOMA Was the Cause of their Injury).) This case has focused entirely on prospective declaratory relief, rather than injunctive relief related to a specific tax refund, and the Court finds no legitimate basis to now construe the Amended Complaint as seeking money damages. Second, the United States is generally immune from suits for money damages, and the Barton couple has not identified any waiver or statutory exception that would apply here. See Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127, 1130 (10th Cir. 2011) (explaining that suits for damages against the United States must proceed under the Tucker Act in the Court of Federal Claims or under some other statutory immunity waiver). Finally, the Barton couple has not urged the Court to construe the Amended Complaint as requesting nominal damages. (See Pls. Reply in Support of Mot. for Entry of J. 7-10.) Even if they had, these decisions generally require an express request, which was not made in the Amended Complaint. See R.M. Inv. Co., 511 F.3d at 1107 (rejecting argument that suit should be construed as one seeking nominal damages and stating that [b]ecause [the plaintiff] has no claim for nominal damages, it cannot rely on nominal-damages cases to overcome mootness); Charles
25
Alan Wright, et al., supra, 3533.3 (But failure to demand nominal damages may lose the opportunity to avoid mootness.). Accordingly, the Barton couples Section 3 challenge is not saved by the other relief language in the Amended Complaint. C. Conclusion
The Barton couple has only requested prospective declaratory relief regarding Section 3, and such request has been rendered moot in light of Windsor and the United States response thereto. The United States has satisfied its burden of showing mootness, and the Court lacks jurisdiction to enter any judgment in favor of the Barton couple. Based on this ruling, the Court agrees with BLAGs assertion that it has no further role to play in this litigation. BLAGs motion to withdraw as an intervening party is therefore granted, and its motion for summary judgment is denied as moot. Although the Barton couple will not receive a judgment in their favor as to this claim, they have played an important role in the overall legal process leading to invalidation of Section 3 of DOMA. The Barton couple filed this lawsuit many years before it seemed likely that Section 3 would be overturned. Although other plaintiffs received the penultimate judgment finding DOMAs definition of marriage unconstitutional, the Barton couple and their counsel are commended for their foresight, courage, and perseverance. IV. Barton Couple Lacks Standing to Challenge Part B of the Oklahoma Constitutional Amendment Bishop II held that, in order to have standing in this case, Plaintiffs must establish a connection between the state official sued and the alleged injury. See Bishop II, 2009 WL 1566802, at *3 (holding that Plaintiffs lacked standing to sue Oklahoma Governor or Oklahoma Attorney General in their challenge to Parts A and B because these officials did not have a sufficient enforcement connection to the challenged Oklahoma laws). The Tenth Circuit indicated that district 26
court clerks were the Oklahoma officials with a connection to Plaintiffs injuries because [m]arriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. Id. Notably, the statutes cited in Bishop II do not reference court clerks authority to recognize an out-of-state marriage. In support of her motion for summary judgment, Smith submitted an affidavit stating that she has no authority to recognize or record a marriage license issued by another state in any setting, regardless of whether the license was issued to an opposite-sex or samesex couple and that [t]here are no circumstances in which the Clerk of Court of Tulsa County would be authorized to recognize a marriage license issued by another state. (See Smith Aff. 5, Ex. A to Smiths Cross Mot. for Summ. J.) The Barton couple has not controverted this evidence in any manner. Instead, the Barton couple argues that, in Bishop II, the Tenth Circuit has deemed [Smith] to be the appropriate party. (Pls. Reply to Smiths Cross Mot. for Summ. J. 27.) Based upon the evidence before the Court, Smith is entitled to summary judgment. Although Bishop II explained that clerks of court were generally the Oklahoma officials connected with the types of injuries alleged in the Amended Complaint, that decision was at the Rule 12(b)(6) stage. In her affidavit, Smith denies that she, or any other district court clerk in Oklahoma, has authority to recognize any out-of-state marriage and therefore denies her ability to redress the Barton couples non-recognition injury. The Barton couple has failed to controvert Smiths testimony in any manner or demonstrate that she would indeed be the proper official to recognize their California marriage. Citation to Bishop II, and inconclusive Oklahoma statutes cited therein, is not sufficient to create a question of fact in light of Smiths uncontroverted denial of authority. A recent case addressed the constitutionality of Ohios non-recognition provision, which was identical to Part B. See Obergefell v. Wymyslo, --- F. Supp. 2d ----, No. 1:13-cv-501, 2013 WL
27
6726688 (S.D. Ohio Dec. 23, 2013). In that case, the same-sex couples had been legally married in states other than Ohio. Upon the death of their same-sex spouse, the surviving spouses sought recognition of those marriages on Ohio death certificates. See id. at *1. The Obergefell plaintiffs sued the local and state officers responsible for death certificates. Id. While Obergefell does not stand for the proposition that local and state officials responsible for death certificates are the only types of officials who may be sued in a challenge to non-recognition laws, it does highlight the Barton couples evidentiary deficiencies in this case. Unlike the plaintiffs in Obergefell, who attempted to obtain recognition on death certificates, the Barton couple has not taken any steps to obtain recognition and has not shown that Smith is the proper official. While the Court does not believe that a futile trip to the courthouse is required in every instance, the only evidence before the Court is an uncontroverted denial of any connection to the injury by the sued state official. Therefore, the Barton couples challenge to Part B is dismissed for lack of standing.18 V. Bishop Couple Has Standing to Challenge Part A Smith has not attacked the Bishop couples standing to challenge Part A or raised any other jurisdictional deficiencies. Nonetheless, the Court has independently satisfied itself that standing and other jurisdictional requirements are satisfied. The Bishop couple has proven standing because they sought an Oklahoma marriage license from Smith, Smith denied them such license, and Smith did so based upon their status as a same-sex couple. Unlike with Part B, the Bishop couple has This is an unfortunate result for the Barton couple, who have twice been turned away based on standing. However, the Court notes that Part B was not the focus of this litigation. It was unclear whether the Barton couple challenged Part B in the Amended Complaint, and they devoted only one page of argument to it in their motion for summary judgment. (See Pls. Mot. for Summ. J. 41-42.) In a proper equal protection challenge, portions of this Courts analysis of Part A would also seem applicable to Part B. The Court is reminded of a quote by Harriet Beecher Stowe: [N]ever give up, for that is just the place and time that the tide will turn. Harriet Beecher Stowe, Old Town Folks (1869). 28
18
clearly demonstrated Smiths connection to their injury. Further, in contrast to Section 2 of DOMA, Part A of the Oklahoma Constitutional Amendment represents a significant cause of the Bishop couples injury and, at a minimum, stands as a barrier between them and married legal status in Oklahoma. A favorable ruling would enjoin enforcement of an enshrined definition of marriage in the Oklahoma Constitution and bring the Bishop couple substantially closer to their desired governmental benefit. See supra Part II(B) (explaining that, in equal protection cases, a plaintiff need not show that a favorable ruling would relieve his every injury but must show that a favorable ruling would remove a barrier imposing unequal treatment).19 The Court has also satisfied itself that Smith is properly sued. The Bishop couple may seek relief from Smith under Ex parte Young, 209 U.S. 123 (1908), which permits suits where a plaintiff is (1) suing state officials rather than the state itself, (2) alleging an ongoing violation of federal law, and (3) seeking prospective relief. Cressman v. Thompson, 719 F.3d 1139, 1146 (10th Cir. 2013); see also Ky. Press Assn, Inc. v. Ky., 355 F. Supp. 2d 853, 861-62 (E.D. Ky. 2005) (applying Ex Parte Young doctrine to permit suit against court clerk in her official capacity). The Court had additional immunity concerns based on Bishop IIs holding that Smith acts as an arm of Oklahomas judiciary when she issues (or denies) marriage licenses. See Bishop II, 2009 WL 1566802, at *3. However, because the suit is one for declaratory and injunctive relief, Smith is not entitled to judicial or quasi-judicial immunity. See Guiden v. Morrow, 92 F. Appx. 663, 665 (10th Cir. 2004) (explaining that court clerk of Butler County, Kansas sued in her official capacity had quasi-judicial
As explained supra in footnote 2, there is an Oklahoma statute also impacting samesex couples eligibility for a marriage license. See Okla. Stat. tit. 43, 3(A). No party discussed standing problems posed by this statute, and the Court is satisfied that enjoining enforcement of Part A redresses a concrete injury suffered by the Bishop couple. 29
19
immunity from suits for money damages but would not be entitled to immunity in a suit seeking injunctive relief). VI. Part A of the Oklahoma Constitutional Amendment Violates the U.S. Constitution The Bishop couple argues that Part A is an unconstitutional deprivation of their fundamental due process liberties and equal protection rights under the Fourteenth Amendment to the U.S. Constitution. The Bishop couple and Smith filed cross motions for summary judgment, and both parties urge the Court to decide the constitutionality of Part A as a matter of law. The Court concludes: (1) Baker v. Nelson is not binding precedent; (2) Windsors reasoning does not mandate a particular outcome for the Bishop couple or Smith; and (3) Part A intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification. A. Baker v. Nelson
Smith argues that Baker represents binding Supreme Court precedent and should end this Courts analysis of Part A. In Baker, the Supreme Court dismissed, for want of a substantial federal question, an appeal of the Minnesota Supreme Courts holding that its state marriage laws did not violate a same-sex couples equal protection or substantive due process rights under the U.S. Constitution. Baker v. Nelson, 409 U.S. 810 (1972). This type of summary dismissal for want of a substantial federal question, although without any reasoning, is considered a binding decision on the merits as to the precise issues presented and necessarily decided. Mandel v. Bradley, 432 U.S. 173, 176-77 (1977); Okla. Telecasters Assn v. Crisp, 699 F.2d 490, 496 (10th Cir. 1983), revd on other grounds, Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984).20 In 1972, the Supreme Court had no discretion to refuse adjudication of an appeal of a state court decision upholding a state statute against federal constitutional attack. See Hicks v. 30
20
Baker presented the precise legal issues presented in this case namely, whether a state law limiting marriage to opposite-sex couples violates due process or equal protection rights guaranteed by the U.S. Constitution. This is evidenced by the jurisdictional statements submitted to the Supreme Court. In relevant part, the appellants phrased the issues as whether Minnesotas refusal to sanctify appellants marriage deprives appellants of liberty and property in violation of the due process and equal protection clauses. (Appellants Jurisdictional Statement, Ex. 4 to Smiths Cross Mot. for Summ. J.) Appellees similarly phrased the relevant issues as [w]hether appellees 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; and [w]hether appellees refusal . . . to sanctify appellants marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment. (Appellees Jurisdictional Statement, Ex. 4 to Smiths Cross Mot. for Summ. J.)21 Therefore, barring application of an exception, Baker is
Miranda, 422 U.S. 332, 343-44 (1975) (explaining difference between this type of summary dismissal and a denial of certiorari). Thus, despite its lack of reasoning, Baker is binding precedent as to issues squarely presented and dismissed. Although Hicks remains the law, it has been criticized. See., e.g., Randy Beck, Transtemporal Separation of Powers in the Law of Precedent, 87 Notre Dame L. Rev. 1405, 1451 (2012) (Just as we do not accord precedential weight to a denial of certiorari, the Court should abandon Hicks and deny controlling force to unexplained summary dispositions. . . . [T]he value of allowing thorough consideration of a legal question outweighs any enhanced legal stability that flows from requiring lower courts to decipher unexplained rulings and treat them as binding authority.). At the trial court level, the same-sex couple had challenged a Minnesota county clerks refusal to grant them a marriage license. They argued that (1) same-sex marriage was authorized by Minnesota law, and (2) alternatively, denial of a marriage license deprived them of liberty without due process and equal protection in violation of their Fourteenth Amendment rights and constituted an unwarranted invasion of privacy in violation of the Ninth and Fourteenth Amendments. Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971) (explaining arguments made in trial court). The Minnesota Supreme Court held that (1) Minnesotas marriage statute, which did not expressly prohibit same-sex marriages, only authorized marriages between persons of the opposite sex; and (2) such an interpretation did not violate the plaintiffs equal protection, due 31
21
binding precedent in this case. See Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1087 (D. Haw. 2012) (holding that Fourteenth Amendment challenge to Hawaii law limiting marriage to oppositesex couples presented precise issues that had been presented in Baker); see also Windsor v. United States (Windsor I), 699 F.3d 169, 178 (2d Cir. 2012) (addressing DOMA challenge) (defining issue in Baker as whether same-sex marriage may be constitutionally restricted by the states); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (addressing DOMA challenge) (The issue in Baker was whether a state licensing statute limiting marriage to opposite-sex couples, and thereby excluding same-sex marriage, violated the due process and equal protection provisions of the Constitution.). There is an exception to the binding nature of summary dismissals, however, if doctrinal developments indicate that the Supreme Court would no longer brand a question as unsubstantial. Hicks, 422 U.S. at 344-45 (stating that 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). The Court concludes that this exception applies for three reasons. First, interpreting Hicks, the Tenth Circuit has pronounced that a summary disposition is binding on the lower federal courts . . . until doctrinal developments or direct decisions by the Supreme Court indicate otherwise. Okla. Telecasters Assn, 699 F.2d at 495 (emphasis added). If an express overruling by the Supreme Court is the only type of doctrinal development that qualifies for the exception, the disjunctive or would cease to have meaning.
process, or privacy rights guaranteed by the U.S. Constitution. Id. at 186-87. 32
Second, there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question. The Supreme Court has: (1) recognized a new form of heightened scrutiny and applied it to sex-based classifications, see Craig v. Boren, 429 U.S. 190, 197-98 (1976); (2) held that a Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose, see Romer v. Evans, 517 U.S. 620, 635 (1996); (3) held that homosexuals had a protected liberty interest in engaging in private, homosexual sex, that homosexuals moral and sexual choices were entitled to constitutional protection, and that moral disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy, Lawrence v. Texas, 539 U.S. 558, 564, 571 (2003); and (4) most recently, held that the U.S. Constitution prevented the federal government from treating state-sanctioned opposite-sex marriages differently than state-sanctioned same-sex marriages, and that such differentiation demean[ed] the couple, whose moral and sexual choices the Constitution protects, Windsor, 133 S. Ct. at 2694. While none is directly on point as to the questions presented in Baker (or here), this is the type of erosion over time that renders a summary dismissal of no precedential value. It seems clear that what was once deemed an unsubstantial question in 1972 would now be deemed substantial based on intervening developments in Supreme Court law. See Windsor I, 699 F.3d at 178 (holding that Baker was not controlling as to constitutionality of DOMA, reasoning in part that [i]n the forty years after Baker, there have been manifold changes to the Supreme Courts equal protection jurisprudence that would warrant an exception to the general rule). But see Mass. v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (rejecting similar reasoning in DOMA challenge and indicating that Baker limited the arguments in that case).
33
Finally, although the Supreme Courts decision in Windsor was silent as to Bakers impact,22 statements made by the Justices indicate that lower courts should be applying Windsor (and not Baker) to the logical next issue of state prohibitions of same-sex marriage. See Windsor, 133 S. Ct. at 2696 (Roberts, C.J., dissenting ) (urging that the Windsor majoritys reasoning must not be extended to state-law bans because the majoritys judgment is based on federalism); id. at 2709-10 (Scalia, J., dissenting) (stating his opinion that the majority decision arms well every challenger to a state law restricting marriage to its traditional definition) (explaining that state and lower federal courts will be able to distinguish Windsor due to its scatter-shot rationales and inviting lower courts to distinguish away). If Baker is binding, lower courts would have no reason to apply or distinguish Windsor, and all this judicial hand-wringing over how lower courts should apply Windsor would be superfluous. Accordingly, the Court concludes that Baker is no longer a binding summary dismissal as to those issues. See Kitchen v. Herbert, --- F. Supp. 2d ----, No. 2:13-cv-217, 2013 WL 6697874, at *8 (D. Utah Dec. 20, 2013) (reaching same conclusion in challenge to Utahs marriage definition in case issued after Windsor).23
22
Based on the Windsor I decision, it seemed likely that the Supreme Court would address Bakers precedential value. See Windsor I, 699 F.3d at 178-79 (majority concluding that doctrinal changes constitute another reason why Baker does not foreclose our disposition of this case); id. at 195 n.3 (Straub, J., concurring in part and dissenting in part) (acknowledging that questions may stop being insubstantial when subsequent doctrinal developments so indicate but concluding that Supreme Court decisions had not eroded Bakers foundations such that it no longer holds sway). However, no Justice mentioned Baker in any part of the Windsor decision. At least one commentator criticized this silence. Jonah Horwitz, When Too Little is Too Much: Why the Supreme Court Should Either Explain its Opinions or Keep Them to Itself, 98 Minn. L. Rev. Headnotes 1, 2 (2013) (explaining that Baker was examined in detail in the Supreme Court briefs and criticizing Supreme Court for failing to discuss Baker) (For a case of such length and significance, it is nothing short of amazing that no one refers, even in passing, to what struck the lower courts and the litigants as a potentially dispositive case.). Lower court decisions issued prior to Windsor are split as to the applicability of the doctrinal developments exception. Compare, e.g., Jackson, 884 F. Supp. 2d at 1085 (holding 34
23
B.
Windsors Impact
In Windsor, the plaintiff, a New York resident, inherited the estate of her same-sex spouse. 133 S.Ct. at 2682. The couple had entered into a Canadian marriage, which was recognized in New York at the time of her spouses death. See id. (citing Windsor Is reasoning regarding New Yorks recognition of the Canadian marriage).24 Upon inheriting her spouses estate, the plaintiff sought to claim the federal estate tax exemption but was prevented from doing so by Section 3 of DOMA, which defined marriage as between one and one woman for purposes of federal law. Id. The plaintiff paid the taxes and then filed suit to challenge the constitutionality of Section 3. Id. The Windsor majority opinion, authored by Justice Kennedy, held that: (1) when a state recognizes same-sex marriage, it confers upon this class of persons a dignity and status of immense import; id. at 2692; and (2) Section 3 of DOMA violated equal protection principles because the avowed purpose and practical effect of that law was to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of a state, id. at 2693. This Court interprets Windsor as an equal protection case holding that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples. See id. at 2694. (DOMAs principal effect is to identify a subset of state-sanctioned marriages and make them unequal.).
that 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) with Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (Doctrinal developments show it is not reasonable to conclude the questions presented in the Baker jurisdictional statement would still be viewed by the Supreme Court as unsubstantial.), overrd on other grounds, Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006). The Windsor I court based its conclusion upon rulings by New York intermediate appellate courts, which indicated that the Canadian marriage was indeed recognized in New York when the plaintiff inherited her spouses estate. Windsor I, 699 F.3d at 177-78. 35
24
The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the laws justifications. Instead, the Windsor Court based its conclusion on the laws blatant improper purpose and animus. See id. at 2693. The Court reasoned that DOMAs unusual deviation from the tradition of accepting state definitions of marriage was strong evidence of a law having the purpose and effect of disapproval of the class. Id. The Court concluded, based upon DOMAs text and legislative history, that DOMAs principal purpose was to impose inequality. Id. Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test for reviewing Part A. Both parties argue that Windsor supports their position, and both are right. Windsor
supports the Bishop couples position because much of the majoritys 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. See id. at 2693 (discussing essence of DOMA as defending a particular moral view of marriage, imposing inequality, and treating legal same-sex marriages as second class, ultimately concluding that DOMA was motivated by an intent to injure lawfully married same-sex couples); id. at 2710 (Scalia, J., dissenting) (explaining that the majority arms well every challenger to a state law restricting marriage to its traditional definition and transposing certain portions of the majority opinion to reveal how it could assist these challengers). However, Windsors purpose and effect reasoning is not a perfect fit, as applied to Part A, because Part A does not negate or trump marital rights that had previously been extended to Oklahoma citizens. Further, DOMAs federal intrusion into state domestic policy is more
36
unusual than Oklahoma setting its own domestic policy. See id. at 2692 (discussing DOMAs departure from the tradition of reliance on state law to define marriage). Windsor supports Smiths position because it engages in a lengthy discussion of states authority to define and regulate marriage, which can be construed as a yellow light cautioning against Windsors extension to similar state definitions. See id. at 2692 (explaining that state marriage laws vary between states and discussing states interest in defining and regulating the marital relation). Again, however, the yellow light argument has its limitations. In discussing this traditional state authority over marriage, the Supreme Court repeatedly used the disclaimer subject to constitutional guarantees. See id. at 2692 (citing Loving v. Virginia, 388 U.S. 1 (1967) (holding that Virginias prohibition of interracial marriage violated equal protection and substantive due rights)). A citation to Loving is a disclaimer of enormous proportion. Arguably, the state rights portion of the Windsor decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens federal constitutional rights. New York had expanded its citizens rights, and there was no possible constitutional deprivation in play. This Court has gleaned and will apply two principles from Windsor. First, a state law defining marriage is not an unusual deviation from the state/federal balance, such that its mere existence provides strong evidence of improper purpose. A state definition must be approached differently, and with more caution, than the Supreme Court approached DOMA. Second, courts reviewing marriage regulations, by either the state or federal government, must be wary of whether defending traditional marriage is a guise for impermissible discrimination against same-sex
37
couples. These two principles are not contradictory, but they happen to help different sides of the same-sex marriage debate. C. Civil Marriage in Oklahoma
Before reaching its equal protection analysis, some preliminary discussion of civil marriage in Oklahoma is necessary. In order to enter into a marital contract, see Okla. Stat. tit. 43, 1 (explaining that marriage is a personal relation arising out of a civil contract), a couple must first obtain a marriage license from the judge or clerk of the district court, of some county in this state, authorizing the marriage between the persons named in such license. Okla. Stat. tit. 43, 4. In order to qualify for a marriage license, a couple must have the following characteristics: (1) the parties must be legally competent of contracting, id. 1; (2) each person must be unmarried, see id. 3(A); (3) the couple must consist of one man and one woman, see Okla. Const. art. 2, 35(A); see also Okla. Stat. tit. 43, 3(A) (indicating that marital contract must be entered with a person of the opposite sex); (4) both parties must be of eighteen years of age, see Okla. Stat. tit. 43, 3(A);25 and (5) the couple must not be related to one another in certain ways, see id. 2.26 But for the Bishop couples status as a same-sex couple, they satisfy the other eligibility criteria for obtaining a marriage license. The process of obtaining a marriage license requires the couple to submit an application in writing signed and sworn to in person before the clerk of the district court by both of the parties
25
Oklahoma permits persons between the ages of sixteen and eighteen to marry with parental consent, see id. 3(B)(1)(a)-(f), and persons under sixteen to marry if authorized by the court in very limited circumstances, see id. 3(B)(2). Marriages between ancestors and descendants of any degree, of a stepfather with a stepdaughter, stepmother with stepson, between uncles and nieces, aunts and nephews, except in cases where such relationship is only by marriage, between brothers and sisters of the half as well as the whole blood, [or] first cousins are prohibited. Okla. Stat. tit. 43, 2. 38
26
setting forth certain information. Id. 5(A). If the court clerk is satisfied with the couples application and the couple pays the appropriate fee, the clerk shall issue the marriage license authorizing the marriage and a marriage certificate. Okla. Stat. tit. 43, 5(B)(1). The marriage certificate is a document with appropriate wording and blanks to be completed and endorsed . . . by the person solemnizing or performing the marriage ceremony, the witnesses, and the persons who have been married. Id. 6(A)(6). The couple may then choose how they will solemnize the marriage, which is when the parties enter into the marital contract: All marriages must be contracted by a formal ceremony performed or solemnized in the presence of at least two adult, competent persons as witnesses, by a judge or retired judge of any court in this state, or an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age. Id. 7(A). The judge, minister, or other authorized person must have possession of the marriage license and must have good reason to believe that the persons presenting themselves for marriage are the individuals named in the license. Id. 7(C). Marriages between persons belonging to certain religions namely, Friends, or Quakers, the spiritual assembly of the Bahais, or the Church of Jesus Christ of Latter Day Saints, which have no ordained minister may be solemnized by the persons and in the manner prescribed by and practiced in any such society, church, or assembly. Id. 7(D). Following the ceremony, whether civil or religious, the officiant, witnesses, and parties must complete and sign the marriage certificate. See id. 8(A)-(C). Any person who performs or solemnizes a marriage ceremony contrary to any of the provisions of this chapter is guilty of a misdemeanor. See id. 15.
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After the license is issued and the contract entered into (either by civil or religious ceremony), both the marriage license and the marriage certificate are then returned to the court clerk who issued the license and certification. See id. 8(D). This must be completed within thirty days of issuance of the marriage license. Id. 6(A)(5). Once returned, the court clerk makes a complete record of the application, license, and certificate and then returns the original license to the applicants, with the issuing officers certificate affixed thereon showing the book and page or case number where the same has been recorded. Id. 9.27 Therefore, in Oklahoma, marriage is a three-step process consisting of: (1) applying for and receiving a marriage license from the court clerk, which authorizes the couple to then enter the marital contract; (2) entering the marital contract by civil or religious ceremony; and (3) having the marriage license and marriage certificate recorded by the court clerk. This Courts equal protection analysis is limited to Part As alleged discriminatory treatment with respect to the first and third steps namely, Part As prevention of Smith from issuing a marriage license to same-sex couples and then recording the license upon its return.28 Smith has no connection to the second step (solemnization), and this Courts equal protection analysis does not impact the second step.
Unlike some other states, Oklahoma does not offer any alternative scheme for samesex couples, such as civil unions. The Supreme Court has stated, and this Court firmly agrees, that marriage is more than a routine classification for purposes of certain statutory benefits. Windsor, 133 S.Ct. at 2692. This Courts opinion should not be read to mean that marriage is nothing more than a contractual relationship or to mean that a civil union scheme would survive constitutional scrutiny. However, because Oklahoma is an all-or-nothing state (marriage license or no marital benefits), the equal protection violation is that much clearer, and this Courts opinion need not reach the legal viability of some alternative scheme. When the Court refers to obtaining a marriage license throughout this Order, it refers to both the initial issuance of the marriage license and the recording of the marriage license by the court clerk after the marriage is solemnized. 40
28
27
Therefore, the declaratory and injunctive relief granted by the Court does not require any individual to perform a same-sex marriage ceremony. D. Equal Protection Analysis
The Fourteenth Amendment mandates that no state shall deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV 1. The Tenth Circuit has recently explained equal protection principles: Equal protection is the laws keystone. Without careful attention to equal protections demands, the integrity of surrounding law all too often erodes, sometimes to the point where it becomes little more than a tool of majoritarian oppression. But when equal protections demands are met, when majorities are forced to abide the same rules they seek to impose on minorities, we can rest much surer of the soundness of our legal edifice. No better measure exists to assure that laws will be just than to require that laws be equal in operation. At the same time, it is of course important to be precise about what equal protection is and what it is not. Equal protection of the laws doesnt guarantee equal results for all, or suggest that the law may never draw distinctions between persons in meaningfully dissimilar situationstwo possibilities that might themselves generate rather than prevent injustice. Neither is the equal protection promise some generic guard against arbitrary or unlawful governmental action, merely replicating the work done by the Due Process Clause or even the Administrative Procedure Act. Instead, the Equal Protection Clause is a more particular and profound recognition of the essential and radical equality of all human beings. It seeks to ensure that any classifications the law makes are made without respect to persons, that like cases are treated alike, that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference. SECSYS, LLC v. Vigil, 666 F.3d 678, 684-85 (10th Cir. 2012) (alterations and citations omitted) (emphases added). A class-based equal-protection challenge, such as that raised here, generally requires a two-step analysis. Id. at 685. First, the Court asks whether the challenged state action intentionally discriminates between groups of persons. Id. Second, after an act of intentional discrimination is identified, the Court must ask whether the states intentional decision to discriminate can be justified by reference to some upright government purpose. Id. at 686. In 41
conducting its analysis, the Court has been particularly mindful of the above-quoted portion of Vigil and has closely adhered to its two-step test. This has helped the Court decide this controversial and complex case as it would decide any other equal protection challenge. 1. Does Part A Intentionally Discriminate Between Groups of Persons?
Intentional discrimination can take several forms. Vigil, 666 F.3d at 685. When a distinction between groups of persons appears on the face of a state law or action, an intent to discriminate is presumed and no further examination of legislative purpose is required. Id. If the law is instead one of general applicability, some proof is required. Id. Because few are anxious to own up to a discriminatory intent, courts may draw inferences about a laws intent or purpose from circumstantial evidence. Id. at 686. A plaintiff may demonstrate that a generally applicable law results in intentional discrimination by showing that the law was adopted at least in part because of, and not merely in spite of, its discriminatory effect on a particular class of persons. Id. (emphasis added). The Court defines the relevant class as same-sex couples desiring an Oklahoma marriage license.29 The Bishop couple has easily satisfied the first element requiring a showing that Part A intentionally discriminates against this class for two reasons. First, Part As disparate impact upon same-sex couples desiring to marry is stark. Its effect is to prevent every same-sex couple in Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law
It is somewhat unusual to define a class of couples, but the Court finds it proper here. The classification made by Part A is aimed only at same-sex couples who want to marry, rather than all homosexuals. A couple must apply together in person for a marriage license, and it is the fact that they are of the same sex that renders them ineligible. Further, Smiths proferred justifications are tied to alleged characteristics that two individuals have when coupled i.e., their inability to naturally procreate and to provide an optimal parenting environment. See infra Part VI(D)(2)(d) (setting forth Smiths proferred justifications for the law). 42
29
has a small or incidental effect on the defined class; it is a total exclusion of only one group. See Vigil, 666 F.3d at 686 (explaining that a laws starkly disparate impact may well inform a courts investigation into the laws underlying intent or purpose). Second, both the timing of SQ 711 in relation to certain court rulings and the statements in the public domain before passage of SQ 711 raise the inference that it was adopted, at least in part, for the purpose of excluding the class from marriage. SQ 711 originated from legislation entitled the Marriage Protection Amendment, which passed the Oklahoma Legislature as part of House Bill 2259 (HB 2259). (See Smiths Cross Mot. for Summ. J., Ex. 1 to Ex. B.) Although there is no legislative history for HB 2259 cited in the record, the Oklahoma House of Representatives website provides a history of HB 2259, which (1) lists the title as Marriage; enacting the Marriage Protection Amendment; (2) shows that the Oklahoma Senate passed the measure by a vote of 38 to 7 on April 15, 2004; and (3) shows that the House passed the measure by a vote of 92 to 4 on April 22, 2004. See History for HB 2259, available at www.oklegislature .gov/BillInfo.aspx?Bill= HB2259&Session=0400.30 On April 15, 2004, the day HB 2259 passed the Oklahoma Senate, the Oklahoma Senate issued the following press release: Senate Passes Marriage Protection Amendment Despite efforts by the Democrat leadership throughout the legislative session to kill the issue, the Senate passed a bill that sends to a vote of the people a constitutional amendment defining marriage in Oklahoma as only between one man and one The Court takes judicial notice of information available on the Oklahoma House of Representatives website and the Oklahoma Senate website pursuant to Federal Rule of Evidence 201, which allows courts to take judicial notice of adjudicative facts if they are generally known within the trial courts jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be questioned. Fed. R. Evid. 201(b); Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1213 (10th Cir. 2012). 43
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woman and prohibiting the state from recognizing homosexual marriages performed outside Oklahoma. I am thankful to the Senates Democrat leadership for finally giving up on their efforts to keep the people from voting on the marriage protection amendment, stated Senate Republican Leader James Williamson, R-Tulsa. All we wanted all along was for the Democrat leadership to allow an up or down vote on this issue, and to allow the Senate to work its will. This is a tremendous victory for the people of Oklahoma and for those of us here at the state Capitol who fight for pro-family issues, Williamson said. Todays vote was allowed as the result of an agreement on Tuesday between the Senate Democrat leadership and the Senate Republicans to end a filibuster by Senator Bernest Cain, D-Oklahoma City, the Senates leading supporter of legalizing homosexual marriage in Oklahoma. ... Today, Williamson succeeded in attaching the marriage protection amendment to House Bill 2259 . . ., sending it back to the House of Representatives for their approval of the Senates amendment to the bill. ... If HB 2259 becomes law, the people of Oklahoma will vote on the proposed constitutional amendment on this falls general election ballot. The constitutional amendment would define marriage as only between one man and one woman, prohibit the recognition of same-sex marriages in other jurisdictions, and make it a misdemeanor to issue a marriage license in violation of the amendments definition of marriage. Many other states from Ohio to Georgia have taken action to provide constitutional protections to traditional marriage to combat efforts by liberals and activist judges seeking to redefine marriage by allowing same-sex unions. Senate Passes Marriage Protection Amendment, available at www.oksenate.gov/news/pressreleases/press_releases_2004/pr20040415.html (emphasis added). The press releases reference to judicial efforts to redefine marriage by allowing same-sex unions came shortly after two Massachusetts Supreme Court cases were issued, which held that the Massachusetts Constitution required that state to allow same-sex marriage. See Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 968 (Mass. Dec. 20, 2003) (holding that practice of denying
44
marriage licenses to same-sex couples violated same-sex couples equal protection rights under Massachusetts Constitution); In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 572 (Mass. Feb. 3, 2004) (providing opinion, in response to question from Massachusetts Senate, that a bill prohibiting same-sex couples from marrying, but allowing same-sex couples to enter civil unions, would also violate the Massachusetts Constitution). On February 6, 2004, three days after the second ruling by the Massachusetts Supreme Court, Tulsa and Oklahoma City newspapers both reported that State Senator James Williamson, author of the Marriage Protection Amendment, made public statements regarding the need for a constitutional amendment in order to prevent a similar ruling in Oklahoma. See Marie Price, Republican Legislators Wary of Same-Sex Ruling, Tulsa World, Feb. 6, 2004 (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.) (quoting Mr. Williamson as stating that [Governor Brad Henrys] reluctance to protect traditional marriage could put Oklahoma at risk that a court will force same-sex unions on us here);31 Ryan McNeil, Party Leaders Trade Barbs on Marriage, The Oklahoman, The Bishop couple presented several newspaper articles in support of their Statement of Facts 13-15. (See Ex. 5 to Pls. Mot. for Summ. J.) Smith does not dispute the factual accuracy of the reporting in these articles but argues that they may not be considered because they are: (1) irrelevant, and (2) inadmissible hearsay. The Court rejects both arguments. First, the articles are relevant to both steps of the analysis whether the law was passed, at least in part, for the purpose of intentional discrimination and whether such discrimination is justified. See Vigil, 666 F.3d at 685 (setting forth two-step test); see generally Windsor, 133 S. Ct. at 2693 (discussing statements made by legislators supporting DOMAs passage as relevant to question of laws purpose). Although the Court is addressing a constitutional amendment enacted by a vote of the people, public statements made by the drafting and championing legislators before the laws passage are certainly relevant evidence. Second, the articles do not pose hearsay problems because the Court is not relying upon the articles, or quotations therein, for their truth. The Court is relying upon the articles to demonstrate what information was in the public domain at the time SQ 711 passed. Whether the 45
31
Feb. 6, 2004 (similarly reporting on Mr. Williamsons public comments regarding activist judges who seek to overturn Oklahomas definition of marriage). Similar public comments regarding the need to protect marriage from same-sex couples were made closer in time to the laws passage. In a public debate held at the Tulsa Press Club between Mr. Williamson and Mark Bonney in October 2004, Mr. Williamson stated that [i]t is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage. Brian Barber, Ban on Gay Marriage Debated, Tulsa World, (Oct. 13, 2004) (quoting Mr. Williamson). Exclusion of the defined class was not a hidden or ulterior motive; it was consistently communicated to Oklahoma citizens as a justification for SQ 711. This is simply not a case where articles or quotations are accurate is of no moment; what matters is that these justifications were offered to the voting public. See Benak ex rel. Alliance Premier Growth Fund v. Alliance Capital Mgmt. L.P., 435 F.3d 396, 401 n.15 (3d Cir. 2006) (relying on articles for purposes of determining what was in the public realm, not whether the contents were in fact true); Florida Right to Life, Inc. v. Mortham, No. 98770CIVORL19A, 1998 WL 1735137, at *6 (M.D. Fla. Sept. 30, 1998) (finding news articles non-hearsay) ([T]he Court will consider the effect of the newspaper articles in creating a perception by the public of corruption occurring in Florida, which perception depends on the fact that members of the public have read the articles rather than the truth of the matters contained therein.). One important source of public knowledge and opinion are news articles conveying statements by the legislators who originated, drafted, and promoted SQ 711. Alternatively, the Court finds that all news articles and quotations therein qualify for the residual exception to the hearsay rule because: (1) the articles and quotations have circumstantial guarantees of trustworthiness namely, that they were made publically to large groups, were consistently reported in Oklahoma newspapers, and are, in some ways, akin to statements against interest; (2) the articles and quotations are relevant to ascertaining the purposes and justifications for the law; (3) based on the lack of legislative history for a state question, the articles and quotations are more probative than other evidence that can be obtained through reasonable efforts; and (4) admitting the news articles, rather than requiring other forms of evidence, serves the interest of justice. See Fed. R. Evid. 807(1)-(4); cf. New England Mut. Life Ins. Co. v. Anderson, 888 F.2d 646, 650 (10th Cir. 1989) (finding that trial court properly excluded news article reporting statements made by widow to one reporter that she conspired to kill insured, where issue was fraudulent procurement of the insurance policy). Further, Smith does not dispute or attempt to dispute their factual veracity in any manner; Smith just asks the Court to disregard them. That does not serve the interest of justice in this case. 46
exclusion of same-sex couples was a mere unintended consequence of the law. Cf. Vigil, 666 F.3d at 686-87 (holding that any discriminatory impact on a certain class of persons by an extortionist state action was an unintended consequence flowing from the ultimate goal of enriching the extortioner). Instead, this is a classic, class-based equal protection case in which a line was purposefully drawn between two groups of Oklahoma citizens same-sex couples desiring an Oklahoma marriage license and opposite-sex couples desiring an Oklahoma marriage license.32 2. Is This Intentional Discrimination Justified?
Not all intentional discrimination by a state against a class of citizens violates equal protection principles. See Vigil, 666 F.3d at 686 (The law . . . may take cognizance of meaningful distinctions between individuals without violating the constitutional command of treating similarly situated persons equally.). In determining whether distinctions between individuals are meaningful, the degree of judicial scrutiny varies. Id. If the discrimination is against a suspect class or quasi-suspect class, it comes to courts under grave suspicions and subject to heightened review because experience teaches that classifications against these groups is so rarely defensible on any ground other than a wish to harm and subjugate. Id. at 687. Laws selectively burdening
In some equal protection cases, the intentional discrimination imposed by the law is so unusual in its character that improper purpose and motive are readily apparent, and there is no need to determine whether the intentional discrimination is justified. See, e.g., Windsor, 133 S. Ct. at 2693; Romer, 517 U.S. at 635. Because Windsor involved an unusual federal intrusion into state domestic law (not at issue here) and Romer involved an unusual, total removal of any equal protection of the law (not at issue here), the Court proceeds to conduct a more traditional equal protection analysis by determining the proper level of scrutiny and then considering all conceivable justifications for Part A. See generally Kitchen, 2013 WL 6697874, at *22 (discussing lack of guidance for determining whether a law imposes discrimination of an unusual character and applying well-settled rational basis test to Utahs same-sex marriage prohibition). 47
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fundamental rights are also carefully scrutinized.33 Laws discriminating against all other groups The Court does not reach the question of whether Part A selectively burdens the Bishop couples asserted fundamental right to marry a person of their choice. (See Pls. Reply in Support of Pls. Mot. for Summ. J. 14.) Such a holding would be broader than whether Part A intentionally discriminates against a defined class of Oklahoma citizens, and it would possibly affect other Oklahoma laws burdening the right to marry a person of [ones] choice. See supra Part VI(C) (setting forth age, number, and other eligibility requirements under Oklahoma law). If Part A does burden a fundamental right, it certainly would not withstand any degree of heightened scrutiny. See supra Part VI(D)(2)(d). Based upon its research on this topic, the Court offers two observations. First, whether or not the right in question is deemed fundamental turns in large part upon how the right is defined. If the right is defined as the right to marry, plaintiffs have thus far been more likely to win the argument. See, e.g., Kitchen, 2013 WL 6697874, at *15 (holding that the plaintiffs do not seek a new right to same-sex marriage and that the right to marry has already been established as a fundamental right); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 994-95 (N.D. Cal. 2010) (Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny.); Goodridge, 798 N.E. 2d at 959-61 (Mass. 2003) (stating in dicta that [w]hether and whom to marry . . . [is] among the most basic of every individuals liberty and due process rights but then failing to decide whether the case merited strict scrutiny because the law did not pass rational basis review); Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968, 983 (N.D. Cal. 2012) (stating in dicta that the right burdened by Section 3 of DOMA was the fundamental right to marry, which had never been limited based upon the status of the desired spouse). If defined as the right to marry a person of the same sex, plaintiffs have thus far been more likely to lose the argument. See, e.g., Jackson, 884 F. Supp. 2d at 1096 (defining right burdened as an asserted new right to same-sex marriage and holding that such right was not deeply rooted in the nations tradition) (collecting cases); Lewis v. Harris, 188 N.J. 415, 441 (2006) (defining right burdened as the right to same-sex marriage and holding that [d]espite the rich diversity of this State . . . and the many recent advances made by gays and lesbians . . ., we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right under the New Jersey Constitution). Second, 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. 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 occupy the same status and dignity as that of a man and woman in 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, which for centuries had been deemed both necessary and 48
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of citizens are reviewed to see if the distinctions they draw between persons are at least rational because there is less reason from historical perspective to suspect a meaningless classification. Id. a. Level of Scrutiny
The Bishop couple argues that Part A is subject to heightened scrutiny because it constitutes gender discrimination. As explained above, the 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 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. 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. See Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1005 (D. Nev. 2012) (holding that Nevadas prohibition of same-sex marriage was not directed toward persons of any particular gender and did not affect people of any particular gender disproportionately such that a gender-based animus [could] reasonably be perceived); Jackson, 884 F. Supp. 2d at 1099 (The Court thus agrees with the vast majority of courts considering the issue that an opposite-sex definition of marriage does not constitute gender discrimination.) (citing cases). But see Kitchen, fundamental, came to be seen in New York and certain other States as an unjust exclusion. Windsor, 133 S. Ct. at 2689 (emphases added). 49
2013 WL 6697874, at *20 (finding that Utahs marriage definition constituted sex discrimination and sexual orientation discrimination); Perry, 704 F. Supp. 2d at 996 (Sexual orientation discrimination can take the form of sex discrimination.); Golinski, 824 F. Supp. 2d at 982 n.4 (Ms. Golinski is prohibited from marrying . . . a woman because [she] is a woman. . . . Thus, DOMA operates to restrict Ms. Golinskis access to federal benefits because of her sex.). Instead of gender-based discrimination, the intentional discrimination occurring against same-sex couples as a result of Part A is best described as sexual-orientation discrimination. The conduct targeted by Part A same-sex marriage is so closely correlated with being homosexual that sexual orientation provides the best descriptor for the class-based distinction being drawn. See Lawrence, 539 U.S. at 583 (OConnor, J., concurring) (explaining that conduct targeted by Texas law criminalizing sodomy was so closely correlated with being homosexual that it amounted to a class-based distinction); Sandoval, 911 F. Supp. 2d at 1005 (concluding that Nevada law prohibiting same-sex marriage was sexual-orientation based); Varnum v. Brien, 763 N.W.2d 862, 885 (Iowa 2009) (The benefit denied by the marriage statute the status of civil marriage for same-sex couples is so closely correlated with being homosexual as to make it apparent the law is targeted at gay and lesbian people as a class.). In this case, the Bishop couple self-identifies as a homosexual couple and desires to marry each other due to their sexual orientation. (See Bishop Couple Aff. 14, Ex. 1 to Pls. Mot. for Summ. J. (explaining that they deeply desire to marry the person [they] love and the companion [they] have chosen, which is driven by their sexual orientation as lesbian).)34 Classifications against homosexuals and/or classifications based on a Smith does not dispute that sexual orientation is the best descriptor for the classification. Smith argues only that: (1) the Court should reject any attempt to bootstrap a sex discrimination claim to what is actually a sexual orientation discrimination claim, and (2) sexual orientation discrimination is subject to rationality review. (See Smiths Cross Mot. for 50
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persons sexual orientation are not subject to any form of heightened review in the Tenth Circuit. See Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-14 (10th Cir. 2008) (A government official can, therefore, distinguish between its citizens on the basis of sexual orientation, if that classification bears a rational relation to some legitimate end.) (citation omitted) (holding that county sheriffs refusal to enforce a lesbians protective order against her same-sex partner did not implicate any protected class that would warrant heightened scrutiny); see also id. n.9 (noting cases rejecting the notion that homosexuality is a suspect classification); Kitchen, 2013 WL 6697874, at *21 (finding Price-Cornelison controlling as to this question in the Tenth Circuit). Therefore, Part A is not subject to any form of heightened scrutiny based upon the Bishop couples membership in a suspect class. b. Rationality Standard
Because it disadvantages a non-suspect class, Part A does not come to this Court under heightened suspicion.35 It comes to the Court on the same footing, for example, as laws intentionally discriminating against the disabled or the elderly. Part A must be reviewed merely for rationality, which requires the Court to uphold Part A if there is any reasonably conceivable state of facts that could provide a rational basis for the classification that it draws between citizens. Copelin-Brown v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10th Cir. 2005) (applying rational basis review to legislation discriminating against non-suspect class of disabled persons); see also PriceCornelison, 524 F.3d at 1114 (inquiring whether classification based on the plaintiffs status as a
Summ. J. 19-25.) This distinguishes this case from Loving, in which the Supreme Court analyzed Virginias miscegenation law under the most rigid scrutiny applicable to racial classifications. See Loving, 388 U.S. at 11. 51
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homosexual bore a rational relation to some legitimate end). In conducting its review, the Court must not only consider the actual purpose of the law but also whether there are any other justifications that could conceivably provide a rational reason for its passage. See Schanzenbach v. Town of Opal, Wyo., 706 F.3d 1269, 1276 (10th Cir. 2013) (explaining that a proferred justification for a law need not have actually motivated the legislature). Further, there need not be a perfect fit between purpose and achievement for a law to pass constitutional muster. Id. There is no difference in the rationality standard where the law in question is a state constitutional amendment enacted by a vote of citizens. See Romer, 517 U.S. at 631 (concluding that Colorado constitutional amendment did not bear a rational relation to a legitimate end). The Courts ultimate task, even under rationality review, is to determine whether there is some ground of difference having a fair and substantial relation to at least one of the stated purposes justifying the different treatment between the included class and the excluded class. Johnson v. Robison, 415 U.S. 361, 376 (1974); see also Vigil, 666 F.3d at 686 (In any case, though, and whatever the applicable standard of review, the aim is always to ensure that, while persons in dissimilar situations may be treated differently, the law treats like alike.). A state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985). By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, [a court] ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 634-35.
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c.
Promoting Morality
The Court turns now to the conceivable justifications for Part As preclusion of same-sex couples from receiving an Oklahoma marriage license. Although not advanced in this litigation as a justification, the Bishop couple has shown, as a matter of law, that promoting or upholding morality was at least one justification offered to the public prior to passage of the law.36 Just like federal legislators who stated their purpose as defending the morality of marriage, see Windsor, 133 S. Ct. at 2693, Oklahoma legislators promoted Part A as upholding one specific moral view of marriage. In February 2004, prior to HB 2259s passage, House Minority Floor Leader Todd Hiett stated that [t]o recognize something other than what God has ordained as traditional marriage obviously detracts or deteriorates the importance of the traditional marriage. Marie Price, Republican Legislators Wary of Same-Sex Ruling, Tulsa World, Feb. 6, 2004 (quoting Mr. Hiett). State Representative Bill Graves said, This is a Bible Belt state . . . . Most people dont want that sort of thing here. . . . Gay people might call it discrimination, but I call it upholding morality. David Harper, Focus: Gay Marriage Clamor Grows Louder and Louder, Tulsa World, Mar. 22, 2004 (quoting Mr. Graves). On April 15, 2004, the date HB 2259 passed the Senate, Mr. Williamson stated that Oklahoma should not legitimize that lifestyle by saying, Yes, two homosexuals can be just as married as two heterosexuals. Thats not right. John Greiner, Marriage Vote Gets Backing of Senate, The Oklahoman, Apr. 16, 2004, at 5A (quoting Mr. Williamson). On or around May 11, 2004, commenting on an advertisement paid for by Cimarron Equality Oklahoma against SQ 711, Mr. Williamson stated that there is a real hunger for a return
This is a different question than the threshold question of whether the Bishop couple has shown intentional discrimination between groups, see supra Part VI(D)(1), although the analyses overlap somewhat in this case. 53
36
to traditional values and for leaders who will draw a line in the sand to help stop the moral decay of this country. Judy Gibbs Robinson, Group Fights Marriage Plan With Print Ad, The Oklahoman, May 11, 2004, 1A (quoting Mr. Williamson). In August of 2004, approximately two months before the public vote, over forty Tulsa-area churches organized a pro-marriage rally, during which Mr. Williamson promoted passage of SQ 711 and discussed Biblical prohibitions of homosexual acts. Robert Evatt, Local Pro-Marriage Rally Takes Aim at Same-Sex Unions, Tulsa World, Aug. 25, 2004 (As Christians, we are called to love homosexuals, Williamson said. But I hope everyone at this rally knows the Scriptures prohibit homosexual acts.). At this same rally, Tulsa Mayor Bill LaFortune stated: If you believe in Christ, if you believe in this country, and if you believe in this city, you believe that marriage is a covenant between God, a man, and a woman. Id. (quoting Mr. LaFortune). An editorial that ran in The Oklahoman on October 17, 2004 urged Oklahomans to pass SQ 711 because the idea that marriage is between a man and a woman is consistent with the citizenrys morals and beliefs. Defining Marriage, The Oklahoman, Oct. 17, 2004, at 22A. The Bishop couple has shown, as a matter of law, that moral disapproval of same-sex marriage existed in the public domain as at least one justification for voting in favor of SQ 711. The Court recognizes that moral disapproval often stems from deeply held religious convictions. See Lawrence, 539 U.S. at 571 (explaining that moral disapproval of homosexual conduct was shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family). However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. See Lawrence, 539 U.S. at 577 ([T]he fact that the governing majority in a State has traditionally viewed a particular practice as
54
immoral is not a sufficient reason for upholding a law prohibiting the practice.) (quoting and adopting Justice Stevens dissent in Bowers v. Hardwick, 478 U.S. 186, 216 (1986)) (concluding that the majority may [not] use the power of the State to enforce [moral] views [disapproving of homosexual conduct] on the whole society through operation of the criminal law); id. at 582-83 (OConnor, J., concurring) (explaining that moral disapproval, without any other asserted state interest, is not a sufficient rationale . . . to justify a law that discriminates among groups of persons); Mass. v. United States Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on that basis. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis.) (internal citations omitted).37 Preclusion of moral disapproval as a permissible basis for laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage advocates, and it forces states to demonstrate that their laws rationally further goals other than promotion of one moral view of marriage. Therefore, although Part A rationally promotes the States interest in upholding one particular moral definition of marriage, this is not a permissible justification. d. Other Justifications
The Court must also consider whether Part A rationally relates to the state interests now being offered by Smith in this litigation.38
37
Smith asserts four justifications for Part As
Justice Scalia has repeatedly expressed his disagreement with this conclusion. See Windsor, 133 S. Ct. at 2707 (Scalia, J., dissenting) (As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. . . .). However, these are dissenting opinions. At the time of her concurrence in Lawrence, Justice OConnor believed that reasons exist, other than moral disapproval, for prohibiting same-sex marriage: 55
38
discrimination against same-sex couples: (1) encouraging responsible procreation and child-rearing; (2) steering naturally procreative relationships into stable unions; (3) promoting the ideal that children be raised by both a mother and a father in a stable family unit; and (4) avoiding a redefinition of marriage that would necessarily change the institution and could have serious unintended consequences. (Smiths Cross. Mot. for Summ. J. 38.) In support of these
justifications, Smith has provided twenty-five exhibits consisting primarily of articles and scholarly writings on marriage, child-rearing, and homosexuality, ranging in date from the early twentieth century to 2008, all of which this Court has carefully reviewed. i. Encouraging Responsible Procreation/Steering Naturally Procreative Couples to Marriage39
Smith argues that through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and fathers who brought them into this world. (Smiths Resp. to Pls. Mot. for Summ. J. 27-28.) For purposes of its analysis, the Court accepts that Oklahoma has a legitimate interest in encouraging responsible procreation, (i.e., procreation within marriage), and in steering naturally procreative relationships into marriage, in order to reduce the number of children born out of wedlock and reduce economic burdens on the State.
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 state interest in this case other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. Lawrence, 539 U.S. at 585 (OConnor, J. concurring). However, she did not explain or list what these other reasons may be, and the Court has found none present in this case.
39
Due to their similarity, the Court addresses the first and second justifications together. 56
However, Part A is not rationally related to these state interests for four reasons. First, the wealth of scholarly articles in this section of Smiths brief, which range from William Blackstone to John Locke, simply demonstrate that state-recognized marriages developed in part as a means of encouraging and incentivizing procreation within marriage. See, e.g., John Locke, The Second Treatise on Civil Government, On Politics and Education, at 113-14 (1947) (For the end of conjugation between male and female, being not barely procreation, but the continuation of the species, this conjugation betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones.). (Smiths Cross Mot. for Summ. J. Ex. 5 to Ex. B.) These articles do not provide what is necessary in an equal protection case that is, a link between the legal classification now being drawn by Part A against same-sex couples and a historical state objective of encouraging procreation to occur within marriage. Traditional exclusion of the disadvantaged group from state-sanctioned marriage does not itself evidence a rational link to the identified goal of promoting responsible procreation within marriage. See Heller v. Doe, 509 U.S. 312, 326 (1993) (Ancient lineage of a legal concept does not give it immunity from attack for lacking rational basis.); Williams v. Illinois, 399 U.S. 235, 239 (1970) (Neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.); Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (striking down Virginias miscegenation statute as violation of equal protection despite states historical practice of prohibiting interracial marriage). During oral arguments in Hollingsworth, Justice Scalia asked Mr. Theodore Olson, counsel for the proponents of Proposition 8, when it became unconstitutional to exclude homosexual couples from marriage. Tr. of Oral Argument 37-38 (March 26, 2013), Hollingsworth v. Perry, 133
57
S. Ct. 2652 (2013). Mr. Olson responded with the rhetorical question of when did it become unconstitutional to prohibit interracial marriage or assign children to separate schools. Id. at 38. As demonstrated by Mr. Olsons response, the mere fact that an exclusion has occurred in the past (without constitutional problem) does not mean that such exclusion is constitutional when challenged at a particular moment in history. This Court has an obligation to consider whether an exclusion, although historical, violates the constitutional rights of Oklahoma citizens. Second, there is no rational link between excluding same-sex couples from marriage and the goals of encouraging responsible procreation among the naturally procreative and/or steering the naturally procreative toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites. See supra Part VI(C); see also Gill, 699 F. Supp. 2d at 389 ([T]he ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.). Permitting same-sex couples to receive a marriage license does not harm, erode, or somehow water-down the procreative origins of the marriage institution, any more than marriages of couples who cannot naturally procreate or do not ever wish to naturally procreate. Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.40 Third, Part As failure to impose the classification on other similarly situated groups (here, other non-procreative couples) can be probative of a lack of a rational basis. See City of Cleburne, 473 U.S. at 448 (finding that requiring special use permit for mentally handicapped occupants of a
If Smiths unarticulated but underlying argument is that opposite-sex couples are more likely to forego marriage because permitting same-sex couples erodes spiritual and religious aspects of marriage, this devolves again to legislation driven by moral disapproval and not legitimate state interests. 58
40
home, but not for other potential occupants, was probative of a lack of rationality); Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (explaining Cleburne as reasoning that the citys purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects). As in Cleburne, the purported justification simply makes no sense in light of how Oklahoma treats other non-procreative couples desiring to marry. See Varnum v. Brien, 763 N.W.2d 862, 884 (Iowa 2009) (applying Iowa Constitution) (concluding that same-sex couples were, for purposes of states interest in regulating marriage, similarly situated to opposite-sex couples despite their inability to naturally procreate); Goodridge, 798 N.E.2d at 962 (applying Massachusetts Constitution) (The marriage is procreation argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.). This asserted justification also makes no sense because a same-sex couples inability to naturally procreate is not a biological distinction of critical importance, in relation to the articulated goal of avoiding children being born out of wedlock. The reality is that same-sex couples, while not able to naturally procreate, can and do have children by other means. As of the 2010 United States Census, there were 1,280 same-sex households in Oklahoma who reported as having their own children under 18 years of age residing in their household. United States Census 2010 and 2010 American Community Survey, Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children, available at http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls. If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal.
59
Finally, the Court rejects Smiths lack of interest argument. Perhaps recognizing that excluding same-sex couples does not promote the asserted justifications in any rational manner, Smith argues that it is rational to exclude same-sex couples from marriage simply because the State has no real interest in them: Even though some same-sex couples do raise children, they cannot create them in the same way opposite-sex couples do as the often unintended result of casual sexual behavior. As a result, same-sex relationships simply do not pose the same risk of irresponsible procreation that opposite-sex relationships do. . . . Sexual relationships between individuals of the same sex neither advance nor threaten societys interest in responsible procreation in the same manner, or to the same degree, that sexual relationships between men and women do. (Smiths Cross Mot. for Summ. J. 34.) This lack of interest argument is ironic, given the history surrounding Part As passage. See supra Part VI(D)(1). Nonetheless, the Court has considered whether it applies to this case. In Johnson v. Robison, 415 U.S. 361, 383 (1974), the Supreme Court stated that when inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statutes classification of beneficiaries and nonbeneficiaries is invidiously discriminatory. In Johnson, the Court held that exclusion of
conscientious objectors from veterans educational benefits was rational, in part, because the benefits would not incentivize service for that class. See id. at 382-83. The classification here is readily distinguishable. Assuming a state can rationally exclude citizens from marital benefits due to those citizens inability to naturally procreate, the states exclusion of only same-sex couples in this case is so grossly underinclusive that it is irrational and arbitrary. In Johnson, the carrot of educational benefits could never actually incentivize military service for the excluded group due to their religious beliefs. In contrast here, the carrot of marriage is equally attractive to procreative
60
and non-procreative couples, is extended to most non-procreative couples, but is withheld from just one type of non-procreative couple. Same-sex couples are being subjected to a naturally procreative requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it. ii. Promoting the Optimal Child-Rearing Environment
Smith also argues that excluding same-sex couples is rationally related to the goal of promoting the ideal family unit. Smith defines this ideal in several different ways throughout the brief, including: (1) a family headed by two biological parents in a low-conflict marriage because benefits flow in substantial part from the biological connection shared by a child with both mother and father, (Smiths Cross Mot. for Summ J. 35 (quoting Kristin Anderson Moore, Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, Child Trends Research Brief (June 2002), Ex. 19 to Ex. B)); (2) a family unit where children are being raised by both a mother and a father in a stable family unit; (id.); and (3) a family unit with gender-differentiated parenting because the contribution of fathers to childrearing is unique and irreplaceable; (id. 36 (quoting David Popenoe, Life Without Father, at 146 (1996), Ex. 23 to Ex. B)). The Court assumes, for purposes of this motion for summary judgment only, that (1) the ideal environment for children must include opposite-sex, married, biological parents, and (2) that promoting this ideal is a legitimate state interest.41 Again, however, the question remains whether The Court suspects that many adoptive parents would challenge this defined ideal, and that many non-ideal families would question this paternalistic state goal of steering their private choices into one particular model of child-rearing. The Court also notes that same-sex couples are physically capable of satisfying many of the descriptors of the ideal environment 61
41
exclusion of same-sex couples promotes this interest, or is simply a guise for singling out same-sex couples for different treatment due to moral disapproval of a same-sex household with children. Smith has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will promote this ideal child-rearing environment. Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the ideal child-rearing environment). See Mass. v. Dept. of Health and Human Svcs., 682 F.3d 1, 1415 (1st Cir. 2012) (addressing Section 3 of DOMA) (Certainly, the denial [of marital benefits] will not affect the gender choices of those seeking marriage.).42 It is more likely that any potential or existing child will be raised by the same-sex couple without any state-provided marital benefits and without being able to understand the integrity and closeness of their own family and its concord with other families in their community. Windsor, 133 S. Ct. at 2694 (explaining that DOMA humiliate[d] thousands of children now being raised by same-sex couples and brought financial harm to children of same-sex couples); see also Gill, 699 F. Supp. 2d at 389 (concluding that Section 3 of DOMA did not nothing to help children of opposite-sex parents but prevented children of same-sex couples from enjoying advantages flowing from a stable family structure); Goodridge,
explained in Smiths cited literature namely, a stable, low-conflict, non-violent, loving, and nurturing environment. The Bishop couple denies that their exclusion from marriage makes it more likely they would marry a member of the opposite sex. (See Bishop Couple Aff. 14 (explaining that marrying someone of the opposite sex would, in their opinion, be emotionally unhealthy and mentally damaging and that, more importantly, they have already identified the companion [they] have chosen to marry and established a long-standing relationship with them), Ex. 1 to Pls. Mot. for Summ. J.) 62
42
798 N.E.2d at 335 (employing same reasoning in conducting rationality review of state policy prohibiting same-sex marriages). In addition, Smith has not explained, and the Court cannot discern from any of Smiths cited materials, how exclusion of same-sex couples from marriage makes it more likely that opposite-sex marriages will stay in tact (thereby remaining optimal child-rearing environments). Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country. See Table 133, Marriages and Divorces Number and Rate by State: 1990-2009, available at www.census.gov/compendia/ statab/2012/tables/12s0133.pdf (showing Oklahoma as ranking sixth in 2009 for divorce rates). The Court concludes that denial of same-sex couples from marriage does nothing to promote stability in heterosexual parenting. See Gill, 699 F. Supp. 2d at 389 (analyzing rationality of Section 3 of DOMA). After presenting the empirical support espousing the benefits of this ideal family unit, Smith offers a one-sentence, conclusory statement that is supposed to provide the link between the empirical data and the exclusion: It is rational, then, for Oklahoma to give special recognition to relationships that are designed to provide children the optimal environment of both a mother and a father. (Smiths Cross Mot. for Summ. 38.) Whether they are designed to or not, common sense dictates that many opposite-sex couples never actually do provide this optimal child-rearing environment, due to drug use, abuse, or, more commonly, divorce. As with natural procreative abilities, Smith does not condition any other couples receipt of a marriage license on their willingness or ability to provide an optimal child-rearing environment for any potential or existing children. While there need not be a good fit between the exclusion of same-sex couples from
63
marriage and the promotion of this ideal family unit, there does need to be some reason for excluding the class. Such a reason is lacking here. iii. Negative Impact on Marriage
Smiths final argument is that it is rational for Oklahoma voters to believe that fundamentally redefining marriage could have a severe and negative impact on the institution as a whole. (Smiths Cross Mot. for Summ. J. 38.) This argument is best summarized in an article entitled Marriage and the Public Good: Ten Principles. (Witherspoon Institute, Marriage and the Public Good: Ten Principles (2008), Smiths Cross Mot. for Summ. J., Ex. 28 to Ex. B.) After discussing the plethora of benefits that marriage offers adults and children, the article then explains how same-sex marriage is one of four threats to the institution (along with divorce, illegitimacy, and cohabitation): [T]here remain even deeper concerns about the institutional consequences of samesex marriage for marriage itself. Same-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage. It would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget. Finally, same-sex marriage would likely corrode marital norms of sexual fidelity, since gay marriage advocates and gay couples tend to downplay the importance of sexual fidelity in their definition of marriage. (Id. at 18-19.) See also, e.g., Sandoval, 911 F. Supp. 2d at 1015-16 (finding Nevadas same-sex marriage bans to pass rationality review because extending marriage to same-sex couples could conceivably lead to an increased percentage of out-of-wedlock children, single-parent families,
64
difficulties in property disputes . . ., or other unforeseen consequences);43 Jackson, 884 F. Supp. 2d at 1112-15 (same).44 The negative impact argument is impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens. All of these perceived threats are to one view of the marriage institution a view that is bound up in procreation, one morally ideal parenting model, and sexual fidelity. However, civil marriage in Oklahoma is not an institution with moral requirements for any other group of citizens. See supra Part VI(C). Smith does not ask a couple if they intend to be faithful to one another, if they intend to procreate, or if they would someday consider divorce, thereby potentially leaving their child to be raised in a single-parent home. With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived threat they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majoritys disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. Preserving the traditional institution of marriage, which is the gist of Smiths final asserted justification, is just a kinder way of describing the States moral disapproval of same-sex couples. Lawrence, 539 U.S. at 602 (Scalia, J., dissenting).
The Sandoval court reasoned in part that civil marriage is at least partially a public activity, and preventing abuse of an institution the law protects is a valid state interest. Sandoval, 911 F. Supp. 2d at 1014. As demonstrated above, same-sex couples do not possess any characteristic indicating they can or will abuse the institution of marriage any more or any differently than other included groups.
44
43
Both Jackson and Sandoval were decided before Windsor. 65
Having considered all four proferred justifications for Part A, the Court concludes that exclusion of same-sex couples is so attenuated from any of these goals that the exclusion cannot survive rational-basis review. See City of Cleburne, 473 U.S. at 447 (explaining that a state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational); Vigil, 666 F.3d at 685 (equal protection review seeks to ensure that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference); Price-Cornelison, 524 F.3d at 1114 ([W]e cannot discern on this record, a rational reason to provide less protection to lesbian victims of domestic violence than to heterosexual domestic violence victims.). E. Equal Protection Conclusion
The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. Against this backdrop, the Courts task is to determine whether Part A of the Oklahoma Constitutional Amendment deprives a class of Oklahoma citizens namely, same-sex couples desiring an Oklahoma marriage license of equal protection of the law. Applying deferential rationality review, the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Courts
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rationality review reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit. Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible samesex couples, from this privilege without a legally sufficient justification. VII. Injunctive Relief and Rulings on Pending Motions The Court declares that Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by precluding samesex couples from receiving an Oklahoma marriage license. The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Courts issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals. Plaintiffs Motion for Summary Judgment (Doc. 197) is GRANTED as to Part A of the Oklahoma Constitutional Amendment and otherwise DENIED. Defendant Sally Howe Smiths Cross Motion for Summary Judgment (Doc. 216) is DENIED as to Part A of the Oklahoma
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Constitutional Amendment, and GRANTED as to Part B based on the Barton couples lack of standing. The Barton couples challenge to Part B is dismissed for lack of standing. The Barton couples Motion for Entry of Final Judgment (Doc. 257) is DENIED, and their challenge to Section 3 of DOMA is dismissed based upon constitutional mootness. BLAGs motion to withdraw as an intervening party (Doc. 263) is GRANTED, and BLAGs pending motion for summary judgment (Doc. 214) is DENIED as moot. The Motion to Dismiss by United States of America and Eric H. Holder, Jr., Attorney General (Doc. 211) is GRANTED, and the Barton couples challenge to Section 2 of DOMA is dismissed for lack of standing. IT IS SO ORDERED this 14th day of January, 2014.
____________________________________ TERENCE C. KERN UNITED STATES DISTRICT JUDGE
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Document: 01019207413
Page: 1
ADDENDUM 2
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA MARY BISHOP, SHARON BALDWIN, SUSAN BARTON, and GAY PHILLIPS, Plaintiffs, v. UNITED STATES OF AMERICA, ex rel. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States of America; and SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendants, BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
No. 04-CV-848-TCK-TLW
ORDER The Court has made seven typographical corrections to the Opinion and Order dated January 14, 2014 (Doc. 272). Specifically, the Court (1) inserted a period after the word sex in footnote 2 on page 3; (2) changed Baron to Barton in footnote 13 on page 14; (3) removed an extra of on page 38; (4) changed a pinpoint citation to Vigil from 686 to 687 on page 52; (5) changed proponents to opponents on page 57; (6) removed not from the parenthetical following Gill on page 62; and (7) changed a pinpoint citation to Vigil from 685 to 684 and corrected the quotation in the parenthetical following Vigil on page 66.
The seven corrected pages are attached to this Order, and the Court Clerk is ordered to replace these pages in the Opinion and Order dated January 14, 2014. SO ORDERED this 17th day of January, 2014.
B.
Oklahoma Constitutional Amendment
On November 2, 2004, Oklahoma voters approved State Question No. 711 (SQ 711), which was implemented as article 2, section 35 of the Oklahoma Constitution.1 The Oklahoma Constitutional Amendment provides: Marriage Defined Construction of Law and Constitution Recognition of Outof-State Marriages - Penalty A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.2 B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.3 C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor. Okla. Const. art. 2, 35 (footnotes added). Part A of the Oklahoma Constitutional Amendment (Part A) is the definitional provision, which provides that marriage in Oklahoma shall consist only of the union of one man and one woman. Part B of the Oklahoma Constitutional Amendment (Part B) is the non-recognition provision, which provides that same-sex marriages performed
SQ 711 passed by a vote of 1,075,216 to 347,303. (See Smiths Cross Mot. for Summ.
J., Ex. 3.) An Oklahoma statute also prevents same-sex couples from marrying. Okla. Stat. tit. 43, 3(A) (Any unmarried person who is at least eighteen (18) years of age and not otherwise disqualified is capable of contracting and consenting to marriage with a person of the opposite sex.) (emphasis added). This statute is not challenged. An Oklahoma statute also prevents recognition of same-sex marriages. Okla. Stat. tit. 43, 3.1 (A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.). This statute is not challenged. 3
3 2
attack was made at the Rule 12(b)(6) stage, the Court accept[s] the allegations in the [Amended Complaint] as true for purposes of [its] standing analysis. United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001). Further, the Court must presume that general allegations embrace those specific facts that are necessary to support the claim. Lewis v. Casey, 518 U.S. 343, 358 (1996) (internal citation omitted). The Court construes the Amended Complaint as alleging three injuries flowing from Section 2. First, the Barton couple alleges the injury of being unable to obtain recognition of their California marriage in Oklahoma (non-recognition). (See Am. Compl. 20.) Second, they allege the injury of unequal treatment, flowing from the United States erection of Section 2 as a barrier to obtaining the benefit of recognition of their California marriage in Oklahoma (unequal treatment). (See id. 12; see also Pls. Resp. to Mot. to Dismiss 12 (arguing that [Section 2] operates as such a barrier in that it officially sanctions the denial of equal treatment of Plaintiffs marriage and the attendant recognition/status that springs from such recognition).) Finally, they allege the injury of stigma and humiliation. (See Am. Compl. 22; see also Pls. Resp. to Mot. to Dismiss 11-12 ([Plaintiffs] have a second-class marriage in the eyes of friends, neighbors, colleagues, and the United States of America.).) 1. Non-Recognition
The Court concludes that neither Section 2, nor the U.S. Attorney Generals enforcement thereof, plays a sufficient causation role leading to the Barton couples alleged injury of nonrecognition of their California marriage in Oklahoma.13 Section 2 is an entirely permissive federal The United States also argues that the Barton couple has not suffered an injury in fact based upon their failure to have actually sought and been denied recognition of their California marriage in Oklahoma. (See United States Mot. to Dismiss 5.) For purposes of this motion, the Court assumes without deciding that the Barton couples alleged injuries constitute injuries in 14
13
couples. These two principles are not contradictory, but they happen to help different sides of the same-sex marriage debate. C. Civil Marriage in Oklahoma
Before reaching its equal protection analysis, some preliminary discussion of civil marriage in Oklahoma is necessary. In order to enter into a marital contract, see Okla. Stat. tit. 43, 1 (explaining that marriage is a personal relation arising out of a civil contract), a couple must first obtain a marriage license from the judge or clerk of the district court, of some county in this state, authorizing the marriage between the persons named in such license. Okla. Stat. tit. 43, 4. In order to qualify for a marriage license, a couple must have the following characteristics: (1) the parties must be legally competent of contracting, id. 1; (2) each person must be unmarried, see id. 3(A); (3) the couple must consist of one man and one woman, see Okla. Const. art. 2, 35(A); see also Okla. Stat. tit. 43, 3(A) (indicating that marital contract must be entered with a person of the opposite sex); (4) both parties must be eighteen years of age, see Okla. Stat. tit. 43, 3(A);25 and (5) the couple must not be related to one another in certain ways, see id. 2.26 But for the Bishop couples status as a same-sex couple, they satisfy the other eligibility criteria for obtaining a marriage license. The process of obtaining a marriage license requires the couple to submit an application in writing signed and sworn to in person before the clerk of the district court by both of the parties
25
Oklahoma permits persons between the ages of sixteen and eighteen to marry with parental consent, see id. 3(B)(1)(a)-(f), and persons under sixteen to marry if authorized by the court in very limited circumstances, see id. 3(B)(2). Marriages between ancestors and descendants of any degree, of a stepfather with a stepdaughter, stepmother with stepson, between uncles and nieces, aunts and nephews, except in cases where such relationship is only by marriage, between brothers and sisters of the half as well as the whole blood, [or] first cousins are prohibited. Okla. Stat. tit. 43, 2. 38
26
homosexual bore a rational relation to some legitimate end). In conducting its review, the Court must not only consider the actual purpose of the law but also whether there are any other justifications that could conceivably provide a rational reason for its passage. See Schanzenbach v. Town of Opal, Wyo., 706 F.3d 1269, 1276 (10th Cir. 2013) (explaining that a proferred justification for a law need not have actually motivated the legislature). Further, there need not be a perfect fit between purpose and achievement for a law to pass constitutional muster. Id. There is no difference in the rationality standard where the law in question is a state constitutional amendment enacted by a vote of citizens. See Romer, 517 U.S. at 631 (concluding that Colorado constitutional amendment did not bear a rational relation to a legitimate end). The Courts ultimate task, even under rationality review, is to determine whether there is some ground of difference having a fair and substantial relation to at least one of the stated purposes justifying the different treatment between the included class and the excluded class. Johnson v. Robison, 415 U.S. 361, 376 (1974); see also Vigil, 666 F.3d at 687 (In any case, though, and whatever the applicable standard of review, the aim is always to ensure that, while persons in dissimilar situations may be treated differently, the law treats like alike.). A state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985). By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, [a court] ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S. at 634-35.
52
However, Part A is not rationally related to these state interests for four reasons. First, the wealth of scholarly articles in this section of Smiths brief, which range from William Blackstone to John Locke, simply demonstrate that state-recognized marriages developed in part as a means of encouraging and incentivizing procreation within marriage. See, e.g., John Locke, The Second Treatise on Civil Government, On Politics and Education, at 113-14 (1947) (For the end of conjugation between male and female, being not barely procreation, but the continuation of the species, this conjugation betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones.). (Smiths Cross Mot. for Summ. J. Ex. 5 to Ex. B.) These articles do not provide what is necessary in an equal protection case that is, a link between the legal classification now being drawn by Part A against same-sex couples and a historical state objective of encouraging procreation to occur within marriage. Traditional exclusion of the disadvantaged group from state-sanctioned marriage does not itself evidence a rational link to the identified goal of promoting responsible procreation within marriage. See Heller v. Doe, 509 U.S. 312, 326 (1993) (Ancient lineage of a legal concept does not give it immunity from attack for lacking rational basis.); Williams v. Illinois, 399 U.S. 235, 239 (1970) (Neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.); Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (striking down Virginias miscegenation statute as violation of equal protection despite states historical practice of prohibiting interracial marriage). During oral arguments in Hollingsworth, Justice Scalia asked Mr. Theodore Olson, counsel for the opponents of Proposition 8, when it became unconstitutional to exclude homosexual couples from marriage. Tr. of Oral Argument 37-38 (March 26, 2013), Hollingsworth v. Perry, 133
57
exclusion of same-sex couples promotes this interest, or is simply a guise for singling out same-sex couples for different treatment due to moral disapproval of a same-sex household with children. Smith has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will promote this ideal child-rearing environment. Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the ideal child-rearing environment). See Mass. v. Dept. of Health and Human Svcs., 682 F.3d 1, 1415 (1st Cir. 2012) (addressing Section 3 of DOMA) (Certainly, the denial [of marital benefits] will not affect the gender choices of those seeking marriage.).42 It is more likely that any potential or existing child will be raised by the same-sex couple without any state-provided marital benefits and without being able to understand the integrity and closeness of their own family and its concord with other families in their community. Windsor, 133 S. Ct. at 2694 (explaining that DOMA humiliate[d] thousands of children now being raised by same-sex couples and brought financial harm to children of same-sex couples); see also Gill, 699 F. Supp. 2d at 389 (concluding that Section 3 of DOMA did nothing to help children of opposite-sex parents but prevented children of same-sex couples from enjoying advantages flowing from a stable family structure); Goodridge,
explained in Smiths cited literature namely, a stable, low-conflict, non-violent, loving, and nurturing environment. The Bishop couple denies that their exclusion from marriage makes it more likely they would marry a member of the opposite sex. (See Bishop Couple Aff. 14 (explaining that marrying someone of the opposite sex would, in their opinion, be emotionally unhealthy and mentally damaging and that, more importantly, they have already identified the companion [they] have chosen to marry and established a long-standing relationship with them), Ex. 1 to Pls. Mot. for Summ. J.) 62
42
Having considered all four proferred justifications for Part A, the Court concludes that exclusion of same-sex couples is so attenuated from any of these goals that the exclusion cannot survive rational-basis review. See City of Cleburne, 473 U.S. at 447 (explaining that a state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational); Vigil, 666 F.3d at 684 (equal protection review seeks to ensure that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference); Price-Cornelison, 524 F.3d at 1114 ([W]e cannot discern on this record, a rational reason to provide less protection to lesbian victims of domestic violence than to heterosexual domestic violence victims.). E. Equal Protection Conclusion
The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. Against this backdrop, the Courts task is to determine whether Part A of the Oklahoma Constitutional Amendment deprives a class of Oklahoma citizens namely, same-sex couples desiring an Oklahoma marriage license of equal protection of the law. Applying deferential rationality review, the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Courts
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APPELLANTS PRINCIPAL BRIEF

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Plaintiffs Cannot Satisfy the Causation or Redressability Requirement of Standing. ....................................................................................................86

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14-5003 Appellant's Opening Brief

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