1:14-cv-01817 #8

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-1817-KLM

CATHERINE BURNS;
SHEILA SCHROEDER;
MARK THRUN;
GEOFFREY BATEMAN;
RACHEL CATT;
CASSIE RUBALD;
BREANNA ALEXANDER;
STACY PARRISH;
ANGELA CRANMORE;
J ULIANNE DELOY;
KAREN COLLIER; and
DENISE LORD;

Plaintiffs,
v.

J OHN W. HICKENLOOPER, J R., in his official capacity as Governor of Colorado;
J OHN SUTHERS, in his official capacity as Attorney General of Colorado;
PAM ANDERSON, in her official capacity as Clerk and Recorder for J efferson County;
DEBRA J OHNSON, in her official capacity as Clerk and Recorder for the City and County of
Denver;

Defendants.
________________________________________________________________________

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
________________________________________________________________________

Plaintiffs, by and through their attorneys, Mari Newman, David A. Lane, Darren M.
J ankord, and Danielle C. J efferis of KILLMER, LANE & NEWMAN, LLP, hereby submit Plaintiffs
Motion for Preliminary Injunction, as follows:

Case 1:14-cv-01817-REB Document 8 Filed 07/01/14 USDC Colorado Page 1 of 14
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I. INTRODUCTION
This is a civil rights action for injunctive and declaratory relief seeking to declare
unconstitutional under the United States Constitution, Colorados Constitutional Amendment 43
and other Colorado laws banning same-sex marriage. Simply put, A state may not deny the
issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely
upon the sex of the persons in the marriage union. Kitchen v. Herbert, 2014 U.S. App. LEXIS
11935, at *4 (10th Cir. J une 25, 2014). This is because the Fourteenth Amendment protects the
fundamental right to marry, establish a family, raise children, and enjoy the full protection of a
states marital laws. So held the Tenth Circuit Court of Appeals in the case of Kitchen v. Herbert,
2014 U.S. App. LEXIS 11935, at *3-4.
In direct violation of the United States Constitution, Colorado law declares that marriage
may only be recognized under law as a union between one man and one woman. The
Defendants unlawfully deny the issuance of marriages licenses, and refuse to recognize the
marriages of certain couples based solely on the sex of the persons in the marriage union. See
COLO. CONST. Art. II, Sec. 31 ([o]nly a union of one man and one woman shall be valid or
recognized as a marriage in this state.); see also C.R.S. 14-2-104(1)(b); C.R.S. 14-2-104(2).
Finding unconstitutional a very similar prohibition on marriages of people of different
races, the Supreme Court of the United States has long recognized that [m]arriage is one of the
basic rights of man, fundamental to our very existence and survival. Loving v. Virginia, 388
U.S. 1, 12 (1967). Yet 40 years later, as a result of an unlawful Constitutional Amendment and
similar statutory enactments, the State of Colorado discriminates against and denies its gay and
lesbian citizens access to the fundamental right to marry, establish a family, raise children, and
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enjoy the full protection of [Colorado]s martial laws, in violation of the Fourteenth
Amendment to the United States Constitution. See Kitchen. 2014 U.S. App. LEXIS, at *3-4.
Colorados civil union statute, C.R.S. 14-15-102 et. seq., is a very poor, separate and
unequal substitute to the full legal and societal recognition of marriage.
II. PARTIES
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As set forth in the Complaint, Kate Burns and Sheila Schroeder are a same sex couple
who have repeatedly sought to obtain a Colorado marriage license, but have been denied each
time by the Denver Clerk and Recorder. Their relationship has been relegated to the separate
and unequal status of civil union.
Plaintiffs Mark and Geoffrey Bateman have been legally married in the State of
Washington, but the State of Colorado refuses to legally recognize their marriage. Their
relationship has thus been relegated to the separate and unequal status of civil union.
Plaintiffs Rachel Catt and Cassie Rubald have been legally married in the State of
California, but the State of Colorado refuses to legally recognize their marriage. Their
relationship has also been relegated to the separate and unequal status of civil union.
Plaintiffs Breanna Alexander and Stacy Parrish have sought to obtain a Colorado
marriage license which was denied by the J efferson County Clerk and Recorders Office. Their
relationship has been relegated to the separate and unequal status of civil union.

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See sworn Affidavit of each named Plaintiff, attached hereto as Exhibits 1 12, which further detail the
backgrounds of the Plaintiffs, and the injuries they have suffered traceable to the acts of Defendants in enforcing
Colorados unconstitutional laws banning same-sex marriage.
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Plaintiffs Angela Cranmore and J ulianne Deloy desire the right to legally marry in the
State of Colorado. Their relationship has been relegated to the separate and unequal status of
civil union.
Plaintiffs Karen Collier and Denise Lord have been legally married in the State of
California, but the State of Colorado refuses to legally recognize their marriage. Their
relationship has been relegated to the separate and unequal status of civil union.
III. ARGUMENT

A. The Tenth Circuit Concluded Utahs Ban On Marriage Equality Violates The
Fourteenth Amendment.

On J une 25, 2014, in Kitchen v. Herbert, the Tenth Circuit concluded that Utahs very
similar ban prohibiting same-sex marriage was violative of the Due Process and Equal Protection
Clauses of the United States Constitution. For virtually identical reasons, the Colorado ban
prohibiting same-sex marriage is similarly unconstitutional and enforcement of this law must
immediately be enjoined by this Court.
B. Colorados Amendment 43 Is Substantially Similar To Utahs Unconstitutional
Ban On Marriage Equality.

Colorados Amendment 43 is substantially similar to Utahs unconstitutional ban on
marriage equality. Section One of Utahs Amendment 3 declared, Marriage consists only of the
legal union between a man and a woman. Similarly, Colorados Amendment 43 declares, Only
a union of one man and one woman shall be valid or recognized as a marriage in this state.
Colorados statutory restrictions on same-sex marriage, C.R.S. 14-2-104(1)(b), and C.R.S.
14-2-104(2), et seq., suffer from the same constitutional infirmity.

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IV. A PRELIMINARY INJUNCTION SHOULD ISSUE

To secure a preliminary injunction, a movant must establish the following elements: (1)
a substantial likelihood of success on the merits; (2) irreparable injury will result if the injunction
does not issue; (3) the threatened injury to the movant outweighs any damage the injunction may
cause the opposing party; and (4) issuance of the injunction would not be adverse to the public
interest. N. Natural Gas Co. v. L.D. Drilling, Inc., 697 F.3d 1259, 1266 (10th Cir. 2012)
(internal quotation marks and citations omitted).
A. Plaintiffs Likelihood Of Success On The Merits Is High.

The unassailable argument raised by Plaintiffs forms the very essence of the Tenth
Circuits ruling in Kitchen. A state may not deny the issuance of a marriage license to two
persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the
marriage union. Kitchen, 2014 U.S. App. LEXIS 11935, at *4. Kitchen essentially ends any
debate about whether the Plaintiffs in this action will prevail. The Colorado Constitutional
Amendment does precisely what the Tenth Circuit has enjoined as unconstitutional. As such,
Plaintiffs likelihood of success on the merits is a virtual certainty. The Tenth Circuit in Kitchen
struck down Utahs same-sex marriage ban a ban substantially similar to Colorados
Amendment 43 and statutory bans on same-sex marriage. Because the Tenth Circuits decision is
binding on this Court, and because the laws in question are virtually identical, there is an
overwhelming probability that Plaintiffs shall prevail after a trial on the merits. Indeed, there is
virtually no possibility that Plaintiffs will not prevail.

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B. Colorados Exclusion of Same-Sex Couples From Marriage Violates Plaintiffs
Due Process and Equal Protection Rights.

Colorados exclusion of same-sex couples from marriage violates Plaintiffs due process
and equal protection rights by depriving Plaintiffs and other same-sex couples of the freedom to
marry the person to whom each has committed his or her life and love and with whom each has
chosen to build a home and a family. [A]ll fundamental rights comprised within the term
liberty are protected by the Federal Constitution from invasion by the States. Kitchen, 2014
U.S. App. LEXIS 11935, at *33 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
846-47 (1992)).
There can be little doubt that the right to marry is a fundamental liberty. Id. In
decisions stretching back more than ninety years, the Supreme Court has held that marriage is a
fundamental right of liberty, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923), of privacy, see
Griswold v. Connecticut, 381 U.S. 479, 486 (1965), and of association, see M.L.B. v. S.L.J., 519
U.S. 102, 116 (1996). For many people, marriage is the most important relation in life.
Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (internal citations omitted). Indeed, the freedom to
marry is one of the vital personal rights essential to the orderly pursuit of happiness by free
men. Loving v. Virginia, 388 U.S. 1, 12 (1967). It is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred. Griswold, 381 U.S. at 486.
Marriage is the most important relation in life, Maynard v. Hill, 125 U.S. 190, 205 (1888), and
[w]ithout doubt, the liberty protected by the Fourteenth Amendment includes the freedom to
marry, establish a home[,] and bring up children. Kitchen, 2014 U.S. App. LEXIS 11935, *34-
35 (quoting Meyer, 262 U.S. at 399).
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Further, the Supreme Court has long-asserted that the freedom to marry is of
fundamental importance for all individuals. Zablocki, 434 U.S. at 384 (emphasis added). That
freedom protects every persons choice of whom to marry, regardless of gender or sexual
orientation. See Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) ([T]he regulation of
constitutionally protected decisions, such as . . . whom he or she shall marry, must be predicated
on legitimate state concerns other than disagreement with the choice the individual has made.);
Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) ([T]he Constitution undoubtedly imposes
constraints on the States power to control the selection of ones spouse.); Carey v. Population
Servs. Intl, 431 U.S. 678, 684-85 (1977) ([A]mong the decisions that an individual may make
without unjustified government interference are personal decisions related to marriage . . . .).
For example, in Lawrence v. Texas, 539 U.S. 558, 578 (2003), the Supreme Court held
that homosexual people have the same protected liberty and privacy interests in their intimate
relationships as heterosexual people. The Court emphasized that our laws and tradition afford
constitutional protection to personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education because of the respect the Constitution
demands for the autonomy of the person in making these choices. Id. at 574. Such decisions
involv[e] the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy . . . . Id. (quoting Casey, 505 U.S. at 851). Persons
in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons
do. Id.
And in United States v. Windsor, 133 S. Ct. 2693 (2013), the Supreme Court powerfully
reiterated the equal dignity of same-sex couples relationships. The Court struck down the
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federal Defense of Marriage Act because the statute burdened, in visible and public ways,
same-sex couples personal, private, and constitutionally protected choices to marry. Id. at 2694.
The Court held further that due process protects not only personal choices and relationships, but
also the equal worth of families headed by same-sex couples and the dignity of the children they
are raising:
[DOMA] . . . tells [same-sex] couples, and all the world, that their otherwise valid
marriages are unworthy of federal recognition. This places same-sex couples in an
unstable position of being in a second-tier marriage. The differentiation demeans the
couple, whose moral and sexual choices the Constitution protects, and whose relationship
the State has sought to dignify. And it humiliates tens of thousands of children now being
raised by same-sex couples. The law in question makes it even more difficult for the
children to understand the integrity and closeness of their own family and its concord
with other families in their community and in their daily lives.

Id. at 2694 (citing Lawrence, 539 U.S. at 558). Because the principal purpose and necessary
effect of DOMA was to demean married same-sex couples and their children, the statute was
unconstitutional as a deprivation of the liberty of the persons protected by the Fifth Amendment
of the Constitution. Id. at 2695.
The Tenth Circuit in Kitchen held that this fundamental right to marry extends to all
couples, including same-sex couples. Rejecting Utahs position that the right to marry to must be
linked to procreation and parenting, the Court held, we cannot conclude that the fundamental
liberty interest in this case is limited to the right to marry a person of the opposite sex. Kitchen,
2014 U.S. App. LEXIS 11935, at *53 . This is because, in describing the liberty interest at
stake, it is impermissible to focus on the identity or class-membership of the individual
exercising the right. 2014 U.S. App. LEXIS 11935, at *55. Utahs purported justification for
the same-sex marriage ban was not, therefore, narrowly tailored to achieve a compelling state
interest and was, therefore, unconstitutional.. Critically, the Court asserted, [a] state may not
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impinge upon the exercise of a fundamental right as to some, but not all, of the individuals who
share a characteristic urged to be relevant. 2014 U.S. App. LEXIS 11935, at *72.
As with Utahs same-sex marriage ban, Colorados Amendment 43 and statutory bans on
same-sex marriage deprive Plaintiffs of the dignity and autonomy protected by due process by
denying persons in same-sex relationships the freedom enjoyed by other Colorado residents
to marry the one person with whom they have forged enduring ties of love and commitment
and who, to each of them, is irreplaceable. Particularly in light of Windsor and Kitchen, it is clear
that same-sex couples are like other couples with respect to the inner attributes of marriage that
form the core justifications for why the Constitution protects this fundamental human right.
Kitchen v. Herbert, No. 2:13-cv-00217-RJ S, 2013 WL 6697874, at *13 (D. Utah Dec. 20, 2013).
C. Colorados Civil Unions Act Does Not Cure Amendment 43s Constitutional
Deficiencies.

One distinction the State may attempt to draw between the Utah law and the Colorado
law is that in Colorado, civil unions are permitted, (C.R.S. 14-15-102 et. seq.) while in Utah,
they are not. The poor substitute for full equality offered by Colorado is no more constitutional
in the context of marriage than it was in the context of education. "We conclude thatthe
doctrine of 'separate but equal' has no place. Separate educational facilities are inherently
unequal." Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954). Similarly, separate rules for
marriage are also inherently unequal. As J udge Kline of the California Court of Appeals wrote
regarding civil unions in his dissent in the pre-Proposition 8 Marriage Cases:
it is similar to the doctrine of separate but equal in that it also serves to legitimate
and perpetuate differential group treatment. Offering homosexual couples the opportunity
to become domestic partners does not eradicate the stain of their exclusion from the
institution of civil marriage our society venerates so highly and makes readily available
to everybody else. The difference between the terms civil marriage and domestic
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partnership is not innocuous; it is a considered choice of language that reflects a
demonstrable assigning of same-sex, largely homosexual, couples to second-class status.

In re Marriage Cases, 143 Cal. App. 4th 873, 978 (Ct. App. 2006) (J , Kline, dissenting)
(modified by statute).
All one need do to find unassailable evidence that civil unions are poor relations to
marriage is peruse the statutes and rules relating to many of the federal agencies charged with
essential tasks impacting the daily lives of hundreds of millions of Americans. For example:
On August 29, 2013, the Internal Revenue Service (IRS) issued a ruling
confirming that same-sex married couples will be treated the same as opposite-
sex married couples for federal tax purposes, but that civil union couples will be
treated differently. [Rev. Rul. 2013-17, at 4, 12, 2013-38 I.R.B. 201];

The Centers for Medicare & Medicaid Services (CMS) issued a memorandum
directing Medicare Advantage organizations to cover services in skilled nursing
facilities for "validly married" same-sex spouses, to the same extent that services
would be required for opposite-sex spouses. See Memorandum from Danielle R.
Moon, Director of CMS, "Impact of United States v. Windsor on Skilled Nursing
Facility Benefits for Medicare Advantage Enrollees," August 29, 2013, available
at
http://www.cms.gov/Medicare/HealthPlans/HealthPlansGenInfo/Downloads/SNF
_Benefits_Post_Windsor.pdf. CMS determined that the term "spouse" only
"includes individuals of the same sex who are lawfully married under the law of
a state, territory, or foreign jurisdiction."

On September 18, 2013, the Department of Labor issued new guidelines
concerning the agency's definitions of "spouse" and "marriage" for the purposes
of the Earned Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.A.
1001 to -1461. See U.S. Department of Labor, "Guidance to Employee Benefit
Plans on the Definition of 'Spouse' and 'Marriage' under ERISA and the Supreme
Court's Decision in United States v. Windsor,"
http://www.dol.gov/ebsa/newsroom/tr13-04.html (Sept. 18, 2013). The guidance
specifically states that the terms "do not include individuals in a formal
relationship recognized by a state that is not denominated a marriage under state
law, such as a domestic partnership or civil union." Ibid. This guidance has a
broad scope, because most private sector employee benefits plans are governed
by ERISA. See U.S. Department of Labor, "Health Benefits, Retirement
Standards, and Workers' Compensation: Employee Benefit Plans,"
http://www.dol.gov/compliance/guide/erisa.htm (last visited Sept. 20, 2013);
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Plaintiffs are taxed for health benefits provided by employers to their same-sex
partner, thus significantly raising the cost of health care for the families. 26
U.S.C. 106.

See gen. Garden State Equal. v. Dow, 434 N.J . Super. 163, 183-84, 82 A.3d 336, 347-48 (2013).
These are just a few examples of numerous rights that are not afforded to members of a civil
union, but are available in legal marriage. See, e.g. Exhibits 1-12, attached.
In addition to the tangible harms listed above, Plaintiffs are denied the unique social
recognition that marriage conveys. Without access to the familiar language and legal label of
marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and
permanence of their commitment, or to obtain respect for that commitment as others do simply
by invoking their married status. See, e.g. Exhibits 1-12, attached.
D. Plaintiffs Will Suffer Irreparable Harm Unless A Preliminary Injunction Is
Issued.

Plaintiffs have identified several harms that flow from this denial, including financial
injury. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir. 2005) (economic loss
may constitute injury-in-fact). Kitchen at 2014 U.S. App. LEXIS 11935, 12.
The liberty protected by the Fifth Amendment's Due Process Clause contains within it the
prohibition against denying to any person the equal protection of the laws. While the
Fifth Amendment itself withdraws from Government the power to degrade or demean in
the way this law does, the equal protection guarantee of the Fourteenth Amendment
makes that Fifth Amendment right all the more specific and all the better understood and
preserved.

Windsor, at 2695.

The United States Supreme Court recognized in Windsor and the Tenth Circuit
reemphasized in Kitchen that:
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DOMA "impose[d] a disadvantage, a separate status, and so a stigma upon all who enter
into same-sex marriages . . . ." Id. The statute "undermine[d] both the public and private
significance of state-sanctioned same-sex marriages" by telling "those couples, and all the
world, that their otherwise valid marriages are unworthy of federal recognition." Id. at
2694. And it "humiliate[d] tens of thousands of children now being raised by same-sex
couples" by making "it even more difficult for the children to understand the integrity and
closeness of their own family and its concord with other families in their community and
in their daily lives." Id. Because DOMA's "differentiation demeans [same-sex] couple[s],
whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558,
and whose relationship[s] the State has sought to dignify," the Court held that the statute
violated the Fifth Amendment. Windsor, 133 S. Ct. at 2694-95.

Kitchen, 2014 U.S. App. LEXIS 11935, at *30.

The Court has long recognized that marriage is "the most important relation in life."
Maynard v. Hill, 125 U.S. 190, 205 (1888). "Without doubt," the liberty protected by the
Fourteenth Amendment includes the freedom "to marry, establish a home[,] and bring up
children." Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see also Loving v. Virginia, 388 U.S. 1,
12 (1967) ("The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men."). Kitchen, 2014 U.S. App. LEXIS
11935, 34-35. To continue to deny Plaintiffs the enjoyment and benefits of one of the most
important liberties in life is to continue to irreparably harm them.
E. The Harm to Plaintiffs If the Marriage Ban is Enforced Far Exceeds the Injury
to Defendants.

J ust as DOMAs principal effect is to identify a subset of state-sanctioned marriages and
make them unequal[and] [t]he principal purpose is to impose inequality United States v.
Windsor, 133 S. Ct. at 2694, the same is true of the Colorado laws banning same sex marriages.
DOMA was struck down by the Supreme Court in part because it was designed to discriminate
unlawfully, just as the Colorado same sex marriage ban was designed to discriminate unlawfully.
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DOMA was unconstitutional as it place[d] same-sex couples in an unstable position of being
in a second-tier marriage. Windsor, 133 S.Ct. at 2694.
[I]f the moving party establishes a likelihood of success on the merits, the balance of
harms normally favors granting preliminary injunctive relief because the public interest is not
harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.
ACLU of Ill. v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012). When [a] law . . . is likely
unconstitutional, the[] interests [of those the government represents, such as voters] do not
outweigh a [plaintiffs interest] in having [its] constitutional rights protected. Hobby Lobby
Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc) (plurality) (quoting
Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (alterations in Hobby Lobby), affd
Burwell v. Hobby Lobby Stores, Inc., 2014 U.S. LEXIS 4505 (U.S. J une 30, 2014).
Here, the balance of harms decisively tips in favor of Plaintiffs. Far from destroying the
institution of marriage, Plaintiffs desire not to redefine the institution but to participate in it.
Kitchen, 2014 U.S. App. LEXIS 11935, at *56.
On the other side of the scale, Defendants will suffer no harm, much less irreparable
harm, if these unconstitutional laws are not enforced.
F. Injunctive Relief is in the Public Interest.

[I]t is always in the public interest to prevent the violation of a partys constitutional
rights. Awad, 670 F.3d at 1132 (internal quotation marks and citations omitted). Here,
Amendment 43 and C.R.S. 14-2-104(1)(b); C.R.S. 14-2-104(2) are violative of the
Constitution of the United States of America, and accordingly, Defendants enforcement thereof
violate Plaintiffs constitutional rights. Injunctive relief is, therefore, in the public interest.
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CONCLUSION

For all the reasons stated above, Plaintiffs respectfully request that this Court grant their
Motion for Preliminary Injunction. Our nations longstanding commitment to equality for all
demands no lesser result.
DATED this 1
st

day of J uly, 2014.
KILLMER, LANE & NEWMAN, LLP

Mari Newman
s/ David A. Lane 0
David A. Lane
Darren M. J ankord
Danielle C. J efferis
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
mnewman@kln-law.com
dlane@kln-law.com
djankord@kln-law.com
djefferis@kln-law.com

Attorneys for Plaintiffs

Case 1:14-cv-01817-REB Document 8-1 Filed 07/01/14 USDC Colorado Page 1 of 4
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IN THE UNITED STATES DISTRICT COURT

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