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Thomas C. Horne
Attorney General

Robert L. Ellman (AZ Bar No. 014410)
Solicitor General
Email: robert.ellman@azag.gov

Kathleen P. Sweeney (AZ Bar No. 011118)
Assistant Attorney General
1275 W. Washington
Phoenix, Arizona 85007-2997
Telephone: (602) 542-3333
Fax: (602) 542-8308
Email: kathleen.sweeney@azag.gov

Byron J . Babione (AZ Bar No. 024320)
J ames A. Campbell (AZ Bar No. 026737)
Kenneth J . Connelly (AZ Bar No. 025420)
J . Caleb Dalton (AZ Bar No. 030539)
Special Assistant Attorneys General
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, Arizona 85260
Telephone: (480) 444-0020
Fax: (480) 444-0028
Email: bbabione@alliancedefendingfreedom.org
Email: jcampbell@alliancedefendingfreedom.org
Email: kconnelly@alliancedefendingfreedom.org
Email: cdalton@alliancedefendingfreedom.org

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Nelda Majors, et al.,
Plaintiffs,
v.
Michael K. J eanes, in his official capacity
as Clerk of the Superior Court of
Maricopa County, Arizona, et al.,
Defendants.
Case No: 2:14-cv-00518-J WS
DEFENDANTS MEMORANDUM
OF LAW IN OPPOSITION TO
FRED MCQUIRES MOTION FOR
TEMPORARY RESTRAINING
ORDER
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Table of Contents
Table of Authorities ............................................................................................................ ii
Introduction ........................................................................................................................ 1
Argument ............................................................................................................................ 1
I. Plaintiff Is Unlikely to Succeed on the Merits. ....................................................... 3
A. The Supreme Courts Baker Decision Forecloses Plaintiffs Claims. ......... 3
B. The Fourteenth Amendment Does Not Forbid Arizona from
Maintaining Its Man-Woman Marriage Definition. ..................................... 3
1. Rational-Basis Review Applies to Plaintiffs Claims. ...................... 3
a. SmithKline Does Not Require Heightened Scrutiny. ............. 3
b. Arizonas Man-Woman Marriage Definition Does Not
Impermissibly Discriminate Based on Sex. ........................... 5
c. Arizonas Man-Woman Marriage Definition Does Not
Infringe Fundamental Rights. ................................................ 6
d. Arizonas Marriage-Recognition Policy Is Not Subject
to Heightened Scrutiny........................................................... 7
2. The Man-Woman Marriage Definition Satisfies
Constitutional Review. ...................................................................... 8
a. The Man-Woman Marriage Definition Furthers the
States Compelling Interest in Connecting Children to
Both of Their Biological Parents. .......................................... 9
b. The Man-Woman Marriage Definition Avoids the
Long-Term Adverse Effects that the State Could
Logically Project Would Accompany the Redefinition
of Marriage. .......................................................................... 11
c. The Challenged Marriage Laws Protect the Peoples
Right to Define Marriage for Their Community.................. 13
II. Plaintiff Has Not Shown that the Relief Will Prevent Irreparable Harm. ............. 14
III. The Balance of Equities Weighs Decidedly in Defendants Favor. ...................... 15
IV. The Public Interest Does Not Support Plaintiffs Motion. .................................... 16
V. If the Court Grants Plaintiffs Motion, the Court Should Carefully Craft Its
Order. ..................................................................................................................... 16
Conclusion ........................................................................................................................ 17
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Table of Authorities
Cases:
Adoptive Couple v. Baby Girl,
133 S. Ct. 2552 (2013) ...........................................................................................9
Andersen v. King County,
138 P.3d 963 (Wash. 2006) ................................................................... 5, 7, 10, 11
Baehr v. Lewin,
852 P.2d 44 (Haw. 1993)................................................................................... 5, 7
Baker v. General Motors Corp.,
522 U.S. 222 (1998) ...............................................................................................8
Baker v. Nelson,
409 U.S. 810 (1972) .......................................................................................... 3, 7
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ...............................................................................3
Bishop v. Smith,
Nos. 14-5003, 14-5006, 2014 WL 3537847 (10th Cir. J uly 18, 2014) ................17
Califano v. Yamasaki,
442 U.S. 682 (1979) .............................................................................................17
Caribbean Marine Services v. Baldrige,
844 F.2d 668 (9th Cir. 1988) ................................................................................15
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006) ........................................................................... 4, 11
City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985) ...............................................................................................4
Coalition for Economic Equity v. Wilson,
122 F.3d 718 (9th Cir. 1997) ................................................................................16
Conaway v. Deane,
932 A.2d 571 (Md. 2007) ............................................................................ 5, 7, 11
FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993) ...............................................................................................8
Goodridge v. Department of Public Health,
798 N.E.2d 941 (Mass. 2003) ................................................................................6
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Heller v. Doe,
509 U.S. 312 (1993) ...............................................................................................9
Herb Reed Enters. v. Florida Entertainment Management,
736 F.3d 1239 (9th Cir. 2013) ..............................................................................14
Herbert v. Evans,
No. 14A65, 2014 WL 3557112 (U.S. J uly 18, 2014) (order) ................... 2, 14, 16
Herbert v. Kitchen,
134 S. Ct. 893 (2014) (order) .................................................................... 2, 14, 16
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ....................................................................... 4, 5, 7, 11
Hollingsworth v. Perry,
558 U.S. 183 (2010) ........................................................................................ 2, 16
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) .......................................................... 10, 11
Johnson v. Robison,
415 U.S. 361 (1974) .............................................................................................10
Kahawaiolaa v. Norton,
386 F.3d 1271 (9th Cir. 2004) ................................................................................3
Latta v. Otter,
No. 14-35420 (9th Cir. May 20, 2014) (order) ......................................................2
Lawrence v. Texas,
539 U.S. 558 (2003) ...............................................................................................7
Lewis v. Harris,
908 A.2d 196 (N.J . 2006) .......................................................................................7
Los Angeles Haven Hospice, Inc. v. Sebelius,
638 F.3d 644 (9th Cir. 2011) ................................................................................17
Los Angeles Memorial Coliseum Commission v. National Football League,
634 F.2d 1197 (9th Cir. 1980) ..............................................................................15
Loving v. Virginia,
388 U.S. 1 (1967) .............................................................................................. 5, 6
In re Marriage Cases,
183 P.3d 384 (Cal. 2008)........................................................................................5
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In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. Ct. App. 2010) ............................................................ 7, 11
In re Mortensons Estate,
316 P.2d 1106 (Ariz. 1957) ....................................................................................8
Massachusetts v. U.S. Department of Health & Human Services,
682 F.3d 1 (1st Cir. 2012) ......................................................................................7
McQuigg v. Bostic,
No. 14A196, 2014 WL 4096232 (U.S. Aug. 20, 2014) (order) ................ 2, 14, 16
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) .......................................................... 7, 10, 11
Murphy v. Ramsey,
114 U.S. 15 (1885) .................................................................................................6
Nguyen v. INS,
533 U.S. 53 (2001) ...............................................................................................11
Robicheaux v. Caldwell,
Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099 (E.D. La. Sept. 3, 2014) ........11
Rostker v. Goldberg,
453 U.S. 57 (1981) ...............................................................................................11
Sampson v. Murray,
415 U.S. 61 (1974) ........................................................................................ 14, 15
Santosky v. Kramer,
455 U.S. 745 (1982) .............................................................................................10
Schuette v. BAMN,
134 S. Ct. 1623 (2014) .................................................................................. 13, 16
Smelt v. County of Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005) ....................................................................5
Smith v. Organization of Foster Families for Equality & Reform,
431 U.S. 816 (1977) ...............................................................................................9
SmithKline Beecham Corp. v. Abbott Laboratories,
740 F.3d 471 (9th Cir. 2014) ............................................................................. 3, 4
Standhardt v. Superior Court,
77 P.3d 451 (Ariz. Ct. App. 2003) ............................................................ 7, 10, 11
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Tully v. Griffin, Inc.,
429 U.S. 68 (1976) .................................................................................................3
United States v. Tenney,
11 P. 472 (Ariz. 1886) ............................................................................................4
United States v. Virginia,
518 U.S. 515 (1996) .......................................................................................... 6, 9
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................... 4, 5, 7, 8, 9, 16
Washington v. Glucksberg,
521 U.S. 702 (1997) .......................................................................................... 6, 7
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7 (2008) ...................................................................................................1
Zablocki v. Redhail,
434 U.S. 374 (1978) ...............................................................................................6
Statutes:
Ariz. Admin. Code R9-19-115 .....................................................................................14
Ariz. Rev. Stat. 25-101 ...................................................................................................8
Ariz. Rev. Stat. 25-102 ...................................................................................................8
Ariz. Rev. Stat. 25-112 ...................................................................................................8
Ariz. Rev. Stat. 36-323 .................................................................................................14
20 C.F.R. 404.335.................................................................................................. 14, 15
38 C.F.R. 3.54 ...............................................................................................................15
38 U.S.C. 1304 .............................................................................................................15
Other Authorities:
Peter L. Berger & Thomas Luckmann, The Social Construction of Reality: A
Treatise in the Sociology of Knowledge (1966) ...................................................12
Eirini Flouri & Ann Buchanan, The Role of Father Involvement in Childrens
Later Mental Health, 26 J . Adolescence 63 (2003) .............................................13
Robert P. George et al., What is Marriage? (2012) ........................................................12
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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
2010) .....................................................................................................................10
J ane Mendle et al., Associations Between Father Absence and Age of
First Sexual Intercourse, 80 Child Dev. 1463 (2009) ..........................................13
Barack Obama, Obamas Speech on Fatherhood (J une 15, 2008),
http://www.realclearpolitics.com/articles/2008/06/obamas_speech
_on_fatherhood.html ..................................................................................... 12, 13
G. Robina Quale, A History of Marriage Systems (1988) .................................................9
Social Security Program Operations Manual System, GN 00305.100, TN 31 (05-
04), J uly 17, 2006, https://secure.ssa.gov/poms.nsf/lnx/0200305100 (last
visited Sept. 6, 2014) ............................................................................................14
United Nations Convention on the Rights of the Child, G.A. Res. 44/25 (Nov. 20,
1989) .......................................................................................................................9
United States Department of Veterans Affairs, Compensation,
http://benefits.va.gov/COMPENSATION/types-
dependency_and_indemnity.asp (last visited Sept. 6, 2014) ...............................15
J ames Q. Wilson, The Marriage Problem (2002) .............................................................9
Witherspoon Institute, Marriage and the Public Good: Ten Principles (2008) .............12
11A Charles A. Wright et al., Federal Practice & Procedure Civil (3d ed. 2014) ..........2



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Defendants submit this response in opposition to Plaintiff Fred McQuires
(Plaintiff) Motion for Temporary Restraining Order (ECF No. 64).
Introduction
The events giving rise to Plaintiffs motion are unfortunate. But Defendants, as
public officers, are charged with enforcing the States marriage policy, which affirms
marriage as the union of a man and a woman. The People of Arizona recognize that
marriagea social institution of utmost importancehas always existed to steer
naturally procreative relationships into enduring unions and to connect children to both
their biological mother and their biological father. While voters in some States have
decided to move marriage further away from these purposes by redefining it from a
gendered (man-woman) institution to a genderless (any two persons) institution,
Arizonans have reasonably chosen to preserve marriage as a gendered institution. The
Fourteenth Amendment does not forbid the People from making this policy choice.
Accordingly, Plaintiff has failed to show that he is likely to prevail on the merits of his
claims, and his motion should be denied.
Argument
Plaintiff claims that the Fourteenth Amendment requires Arizona to recognize a
marriage license that he received from another State, see Second Am. Compl. 33 (ECF
No. 50), and through this motion, he seeks an immediate order requiring Defendants to
recognize [the] California marriage license issued to him and George Martinez, see Pl.s
TRO Mem. at 3 (ECF No. 64). A plaintiff seeking a temporary restraining order or a
preliminary injunction must establish [1] that he is likely to succeed on the merits, [2]
that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the
balance of equities tips in his favor, and [4] that an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Such relief is an
extraordinary remedy. Id. at 24. It may only be awarded upon a clear showing that the
plaintiff is entitled to such relief. Id. at 22. Consequently, Plaintiff must show that all
four of these factors weigh unmistakably in his favor. He has failed to do this.
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Before analyzing the four factors, Defendants emphasize that Plaintiffs motion
fails for two threshold reasons. First, by repeatedly issuing stay orders in similar
marriage cases, the Supreme Court has indicated that lower courts should not implement
injunctive relief in these cases until the Court finally resolves whether the Constitution
requires States to adopt a genderless marriage definition. See Herbert v. Kitchen, 134 S.
Ct. 893 (2014) (staying injunction against Utahs marriage laws); Herbert v. Evans, No.
14A65, 2014 WL 3557112 (U.S. J uly 18, 2014) (staying injunction that requires Utah to
recognize marriage licenses issued to same-sex couples); McQuigg v. Bostic, No.
14A196, 2014 WL 4096232 (U.S. Aug. 20, 2014) (staying court of appeals mandate that
would have implemented an injunction against Virginias marriage laws); see also Order,
Latta v. Otter, No. 14-35420 (9th Cir. May 20, 2014) (staying injunction against Idahos
marriage laws). Those precedents preclude Plaintiffs request to immediately enjoin the
challenged marriage laws. Second, a temporary-restraining order is designed to preserve
the status quo. 11A Charles A. Wright et al., Fed. Prac. & Proc. Civ. 2951 (3d ed.
2014). Plaintiffs motion, however, seeks to change the status quo by requiring the State,
for the first time ever, to recognize a same-sex relationship as a marriage. A temporary-
restraining order is thus unsuitable here.
Furthermore, the Supreme Courts stay orders in the marriage cases inform the
four-prong analysis that applies here. To issue those stays, the Court necessarily found
(1) a fair prospect that a majority of the [Supreme] Court will vote to uphold man-
woman marriage laws as constitutional and (2) a likelihood that irreparable harm will
result to the States from enjoining those laws before the Supreme Court settles the
constitutional question at issue here. See Hollingsworth v. Perry, 558 U.S. 183, 190
(2010) (per curiam) (outlining the factors for issuing a stay pending appeal). Those
conclusions weigh against Plaintiffs arguments that he is likely to succeed on the merits,
see TRO Mem. at 8-10, and that the State will not be harmed by enjoining the challenged
laws, see id. at 15-16.
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I. Plaintiff Is Unlikely to Succeed on the Merits.
1

A. The Supreme Courts Baker Decision Forecloses Plaintiffs Claims.
Binding Supreme Court precedent forecloses Plaintiffs claims. In Baker v.
Nelson, 409 U.S. 810 (1972), the Supreme Court unanimously dismissed, for want of a
substantial federal question, an appeal from the Minnesota Supreme Court presenting
the question whether a State that maintains marriage as a man-woman union violates the
Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. Id.;
see also J urisdictional Statement at 3, Baker v. Nelson, 409 U.S. 810 (1972) (No. 71-
1027); Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971). That summary dismissal
in Baker is a decision on the merits that constitutes controlling precedent, unless and
until re-examined by this Court. Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976). Because
the Supreme Court has never reassessed the question that the parties raised in Baker, that
decision binds this Court, and Plaintiff cannot prevail.
B. The Fourteenth Amendment Does Not Forbid Arizona from
Maintaining Its Man-Woman Marriage Definition.
Separate from Bakers binding force, Plaintiffs claims lack merit because the
Fourteenth Amendment does not forbid Arizonas man-woman marriage definition.
1. Rational-Basis Review Applies to Plaintiffs Claims.
Rational-basis review applies here because Arizonas man-woman marriage
definition does not infringe a fundamental right or discriminate based on a quasi-suspect
classification. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1277-78 (9th Cir. 2004).
a. SmithKline Does Not Require Heightened Scrutiny.
There are four reasons why the Ninth Circuits decision in SmithKline Beecham
Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), does not require this Court to
apply heightened scrutiny. Cf. Pl.s Prelim. Inj. Mem. at 21 (ECF No. 63).

1
Defendants incorporate here the legal argument in Defendants Cross-Motion for
Summary J udgment and Memorandum of Law in Support filed in Connolly v. Roche, No.
2:14-cv-00024-J WS (ECF No. 59). Defendants summarize those arguments here.
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First, by its own terms, SmithKline requires heightened scrutiny only when state
action discriminates on the basis of sexual orientation. 740 F.3d at 483. But Arizonas
man-woman definition of marriage does not. That definition distinguishes between man-
woman couples and all other relationships (including same-sex couples and polyamorous
relationships). It does not explicitly classify individuals based on their sexual orientation.
Second, the state action at issue in SmithKline intended to discriminate against
gays and lesbians. Id. at 477-78 (finding intentional discrimination). Here, however,
Arizonas man-woman definition of marriage, which predates the States inception, see,
e.g., United States v. Tenney, 11 P. 472, 477 (Ariz. 1886), is not born of any intent to
discriminate against gays and lesbians. Not a shred of evidence suggests that Arizonans
recognized man-woman marriage more than a hundred years ago for the purpose of
disadvantaging gays and lesbians. By focusing his attention only on the laws enacted in
1996 and 2008, see TRO Mem. at 8-9, Plaintiff misses the mark, for even if the State had
not approved those enactments, marriage in this State would still be a man-woman union.
Third, because same-sex couples have distinguishing characteristics relevant to
interests the State has the authority to implement, constitutional analysis requires only
a rational means to serve a legitimate end. City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 441-42 (1985). Arizonas marital definition is based on a biological
difference between man-woman couples and same-sex couplesnamely, the natural
capacity to create children and to provide those children with their biological mother and
biological father. Because this basic biological difference relates directly to societys
interests in regulating marriage, see infra at 9, the States definition of marriage is subject
only to rational-basis review. See Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-
67 (8th Cir. 2006); Hernandez v. Robles, 855 N.E.2d 1, 11 (N.Y. 2006).
Fourth, SmithKline premised its new equal-protection standard entirely on United
States v. Windsor, 133 S. Ct. 2675 (2013). See 740 F.3d at 480 (noting that Windsor is
dispositive of the question of the appropriate level of scrutiny). Thus, SmithKline can
reach no further than Windsor in demanding heightened scrutiny. Windsor, however, did
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not establish that all laws that disparately impact same-sex couples warrant heightened
scrutiny. Rather, it premised its careful consideration analysis on its conclusion that the
federal government had unusually depart[ed] from [its] history and tradition of reliance
on state law to define marriage. 133 S. Ct. at 2692. Because Arizonas man-woman
marital definition does not depart from history or exhibit any other unusual characteristic,
Windsors predicate for applying careful consideration analysis is absent here.
b. Arizonas Man-Woman Marriage Definition Does Not
Impermissibly Discriminate Based on Sex.
Plaintiffs sex-discrimination arguments are unpersuasive. See Prelim. Inj. Mem.
at 22. The Supreme Courts sex-discrimination equal-protection cases have never strayed
from the baseline rule that a law does not impermissibly discriminate based on sex unless
it subjects men as a class or women as a class to disparate treatment. Smelt v. Cnty. of
Orange, 374 F. Supp. 2d 861, 876-77 (C.D. Cal. 2005) (collecting Supreme Court cases),
affd in part, vacated in part, 447 F.3d 673 (9th Cir. 2006).
Because Arizonas man-woman marriage definition does not treat men as a class
differently from women as a class, Plaintiffs sex-discrimination arguments fall short.
Even though this argument has been raised in the many similar cases that have been
litigated throughout the country, no appellate court, state or federal, except for a two-
justice plurality in Baehr v. Lewin, 852 P.2d 44, 59-63 (Haw. 1993), has adopted
Plaintiffs sex-discrimination theory. See, e.g., In re Marriage Cases, 183 P.3d 384, 439
(Cal. 2008); Conaway v. Deane, 932 A.2d 571, 598-99 (Md. 2007); Hernandez, 855
N.E.2d at 10-11; Andersen v. King Cnty., 138 P.3d 963, 988 (Wash. 2006) (plurality).
Plaintiffs reliance on Loving v. Virginia, 388 U.S. 1 (1967), a race-discrimination
case, is misplaced. See Prelim. Inj. Mem. at 23 n.12. Loving, to be sure, observed that
equal application does not immunize a racially discriminatory law from strict scrutiny.
388 U.S. at 9. But the Supreme Court has never extended that principle to sex
discrimination. Instead, the Court has declined to equat[e] gender classifications with
classifications based on race and has carefully inspected under heightened scrutiny
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only official action that closes a door or denies opportunity to women (or to men).
United States v. Virginia, 518 U.S. 515, 532 (1996) (emphasis added). Because Arizonas
marriage laws do not close a door to either sex, finding sex discrimination here would be
an unprecedented expansion of the Supreme Courts case law.
c. Arizonas Man-Woman Marriage Definition Does Not
Infringe Fundamental Rights.
In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court discussed
how to ascertain whether an asserted right is fundamental. Id. at 720-21. The Court
requires a careful description of the asserted fundamental liberty interest, id. at 721,
and demands that the carefully described right must be objectively, deeply rooted in
this Nations history and tradition, id. at 720-21. The carefully described right at issue
here is the purported right to marry a person of the same sex. That right is not deeply
rooted in our Nations history and tradition. Marriage between two people of the same
sex was unknown in this country before 2004, see Goodridge v. Dept of Pub. Health,
798 N.E.2d 941, 970 (Mass. 2003), and is now recognized in only a minority of States.
Nor can Plaintiff rely on the established fundamental right to marry that the
Supreme Court has recognized, 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 and 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 a connection to procreation. See, e.g., Loving, 388 U.S. at 12;
Zablocki v. Redhail, 434 U.S. 374, 383-84 (1978).
Lest there be any doubt on this point, the Supreme Court has twice indicated that
the fundamental right to marry does not include the right to marry a person of the same
sex. First, just five years after Loving, the Court was presented with the same asserted
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fundamental right raised here, but it denied that claim on the merits, summarily and
unanimously. Baker, 409 U.S. at 810; see also Massachusetts v. U.S. Dept of Health &
Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (concluding that Baker forecloses arguments
that presume or rest on a constitutional right to same-sex marriage). Second, Windsor
stated that marriage between a man and a woman no doubt had been thought of . . . as
essential to the very definition of that term and to its role and function throughout the
history of civilization. 133 S. Ct. at 2689. This language directly refutes any suggestion
that the deeply rooted right to marry includes uniting two persons of the same sex.
It is thus not surprising that the majority of appellate courts that have faced this
fundamental-right question, under a state constitution or the Federal Constitution, have
found no fundamental right to marry a person of the same sex. See, e.g., Standhardt v.
Superior Court, 77 P.3d 451, 460 (Ariz. Ct. App. 2003); Baehr, 852 P.2d at 57; Morrison
v. Sadler, 821 N.E.2d 15, 32-34 (Ind. Ct. App. 2005); Conaway, 932 A.2d at 624-29;
Lewis v. Harris, 908 A.2d 196, 211 (N.J . 2006); Hernandez, 855 N.E.2d at 9-10; In re
Marriage of J.B. & H.B., 326 S.W.3d 654, 675-76 (Tex. Ct. App. 2010); Andersen, 138
P.3d at 976-79.
2

d. Arizonas Marriage-Recognition Policy Is Not Subject to
Heightened Scrutiny.
It is not unusual or unconstitutional for a State to decline to recognize a couples
out-of-state marriage. Comity and full-faith-and-credit principles have always permitted

2
Plaintiff vaguely asserts that Arizonas man-woman marriage definition violates his
protected liberty interests in association, integrity, autonomy, and self-definition.
Prelim. Inj. Mem. at 18 (capitalization omitted). Plaintiff relies principally on Lawrence
v. Texas, 539 U.S. 558, 573 (2003), for this claim. But Lawrencewhich struck down a
criminal statute that prohibited the most private human conduct, sexual behavior, . . . in
the most private of places, the home, id. at 567explicitly stated that it did not
involve, and thus did not decide, whether the government must give formal recognition
to any relationship that homosexual persons seek to enter, id. at 578. Moreover, the
Supreme Court has rejected the idea that constitutional rights may be simply deduced
from abstract concepts of personal autonomy. Glucksberg, 521 U.S. at 725. Rather,
those rights must be grounded in this Nations history and constitutional traditions. Id.
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Arizona, like other States, to decline to recognize [m]arriages performed outside the
state which offend [its] strong public policy. In re Mortensons Estate, 316 P.2d 1106,
1108 (Ariz. 1957); see also Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998) (The
Full Faith and Credit Clause does not compel a state to substitute the statutes of other
states for its own statutes dealing with a subject matter concerning which it is competent
to legislate. (internal quotation marks omitted)).
Moreover, by declining to recognize Plaintiffs California marriage license, the
State has not treated him differently than any man-woman couple who sought to evade
Arizonas marriage law by marrying in another State. The State prohibits all persons
residing in this state from evad[ing] the laws of this state relating to marriage by going
to another state or country for solemnization of the marriage. Ariz. Rev. Stat. 25-
112(C). Plaintiff violated this statutory provision. See McQuire Supp. Decl. 5 (ECF No.
66). He is thus treated no differently than an underage, see Ariz. Rev. Stat. 25-102(A),
or closely related man-woman couple, see Ariz. Rev. Stat. 25-101(A), who resides in
Arizona and similarly seeks to evade the States marriage laws.
Finally, the implications of Plaintiffs recognition-based arguments are untenable.
Requiring Arizona to recognize a relationship as a marriage simply because another State
does would effectively nationalize the domestic-relations policy of the most inventive
State. That would not only contravene the well-established comity and full-faith-and-
credit principles discussed above, it would also conflict with Windsors acknowledgment
that the Constitution permits variation among States domestic-relations policies
concerning which couples may marry. See 133 S. Ct. at 2691 (noting that States may
differ on permissible degree[s] of consanguinity and minimum age[s] for marriage).
2. The Man-Woman Marriage Definition Satisfies Constitutional
Review.
Arizonas man-woman marriage definition satisfies rational-basis review. That
standard is 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,
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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) (internal quotation marks omitted).
The States definition of marriage also withstands heightened scrutiny. To satisfy
that standard, the State must show that the challenged classification serves important
governmental objectives and that the . . . means employed are substantially related to the
achievement of those objectives. Virginia, 518 U.S. at 533 (internal quotation marks and
alterations omitted). Arizonas man-woman marriage definition and the laws reaffirming
it are substantially related to at least three compelling objectives: (1) connecting children
to both their biological mother and their biological father; (2) avoiding the adverse
consequences likely to accompany the redefinition of marriage; and (3) protecting the
Peoples fundamental right to define marriage for their own community.
a. The Man-Woman Marriage Definition Furthers the
States Compelling Interest in Connecting Children to
Both of Their Biological Parents.
The historical record leaves no doubt that the State recognizes marriage to steer
naturally procreative relationships into enduring unions and link children to both of their
biological parents. See Windsor, 133 S. Ct. at 2718 (Alito, J ., dissenting); J ames Q.
Wilson, The Marriage Problem 41 (2002); G. Robina Quale, A History of Marriage
Systems 2 (1988). Every person has a mother and a father, and the State has a compelling
interest in encouraging arrangements where children are more likely to be raised by both
of those parents. Underscoring this laudable goal, the Supreme Court has recognized a
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). That right vests not only 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, G.A. Res. 44/25, art. 7, 1 (Nov. 20, 1989).
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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 may well be far-reaching. Santosky v. Kramer, 455 U.S. 745, 760
n.11 (1982). This observation is supported by social science showing that [y]oung adults
conceived through sperm donation (and thus without 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 7 (Institute for American Values 2010). The State thus has a
compelling interest in connecting children to both of their biological parents.
The State establishes the requisite relationship between this interest and the means
chosen to achieve it so long as the inclusion of one group promotes [this] purpose, and
the addition of other groups would not. Johnson v. Robison, 415 U.S. 361, 383 (1974).
Therefore, the relevant inquiry is not whether excluding same-sex couples from marriage
furthers the States interest in encouraging biological mothers and fathers to jointly raise
their children. 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 allowing same-sex couples to marry. Jackson v. Abercrombie, 884 F. Supp.
2d 1065, 1107 (D. Haw. 2012); accord Standhardt, 77 P.3d at 463; Morrison, 821 N.E.2d
at 23, 29; Andersen, 138 P.3d at 984 (plurality).
Applying that analysis, the man-woman marriage definition plainly satisfies
constitutional review. Only sexual relationships between a man and a woman advance the
States interest because only those relationships naturally produce children and are able to
provide those children with both of their biological parents. Sexual relationships between
individuals of the same sex, by contrast, do not naturally create children or provide them
with both their mother and their father. Those relationships thus do not implicate the
States overriding purpose for regulating marriage. See, e.g., 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).
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That is why a host of judicial decisions, including a federal decision issued just
last week, have concluded that laws defining marriage as the union of one man and one
woman and extending a variety of benefits to married couples are rationally related to the
government interest[s] in steering procreation into marriage and connecting children to
their biological parents. Bruning, 455 F.3d at 867-68; see, e.g., Robicheaux v. Caldwell,
Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099, at *6 (E.D. La. Sept. 3, 2014)
(Louisianas [man-woman marriage laws] are directly related to achieving marriages
historically preeminent purpose of linking children to their biological parents.); Jackson,
884 F. Supp. 2d at 1112-14; Standhardt, 77 P.3d at 461-64; Morrison, 821 N.E.2d at 23-
31; Conaway, 932 A.2d at 630-34; Hernandez, 855 N.E.2d at 7-8; In re Marriage of J.B.
& H.B., 326 S.W.3d at 677-78; Andersen, 138 P.3d at 982-85 (plurality).
Additionally, the man-woman definition of marriage satisfies heightened scrutiny
because even under that more demanding standard, the Constitution requires simply that
a State treat similarly situated persons similarly, not that it engage in gestures of
superficial equality. Rostker v. Goldberg, 453 U.S. 57, 79 (1981). To fail to
acknowledge even our most basic biological differences, like those between same-sex
couples and man-woman couples, risks making the guarantee of equal protection
superficial, and so disserving it. Nguyen v. INS, 533 U.S. 53, 73 (2001); accord id. at 63
(upholding a proof-of-citizenship law under heightened scrutiny because the two classes
at issue[f]athers and motherswere not similarly situated with regard to proof of
biological parenthood). Because man-woman couples and same-sex couples are not
similarly situated with regard to the States interest in connecting children to both
biological parents, the challenged marriage laws withstand heightened scrutiny.
b. The Man-Woman Marriage Definition Avoids the Long-
Term Adverse Effects that the State Could Logically
Project Would Accompany the Redefinition of Marriage.
The State may logically project that redefining marriage poses a significant risk of
bringing about adverse social consequences over time. Redefining marriage in genderless
terms would transform it into an institution that no longer has any intrinsic definitional
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connection to its overriding social purposes of channeling naturally procreative
relationships into enduring unions and linking children to both of their biological parents.
Although it is not possible to know the long-term consequences of redefining marriage in
this way, see Transcript of Oral Argument at 48, Hollingsworth v. Perry, 133 S. Ct. 2652
(2013) (No. 12-144) (Kennedy, J .) (indicating that counsel challenging Californias man-
woman marriage definition asked the Court to go into uncharted waters), it is
undeniable that legally redefining marriage as a genderless institution will have real-
world consequences. Complex social institutions like marriage comprise a set of norms,
patterns, and expectations that powerfully affect peoples views and actions. See Peter L.
Berger & Thomas Luckmann, The Social Construction of Reality: A Treatise in the
Sociology of Knowledge 72 (1966). Changing the legal definition of a pervasive
institution will inevitably alter societys views and expectations regarding that institution
and ultimately individuals choices and actions when they interact with it.
Faced with uncertainties about the future, it is logical for the People to project that
redefining marriage will jeopardize its utility in serving its purpose of connecting
children to both their mother and their father. For example, genderless marriage
necessarily undermines the importance of, and eliminates the States preference for,
children being raised by both their biological mother and their biological father. See
Witherspoon Institute, Marriage and the Public Good: Ten Principles 18-19 (2008). As
over seventy prominent scholars have acknowledged, that would tend to alienate fathers
from tak[ing] responsibility for the children they beget. Id.; see also Robert P. George
et al., What is Marriage? 8 (2012). And it would encourage mothers to create or raise
children apart from their fathers. Those developments, collectively, would lead to more
children being raised without their fathers.
The States concern is that those children would suffer. As President Obama has
explained:
We know the statistics that 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
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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 (J une 15, 2008), http://www.realclear
politics.com/articles/2008/06/obamas_speech_on_fatherhood.html.
3

Based on this concern about potentially increasing the number of children raised
without their father (and other adverse societal effects that might accompany the
redefinition of marriage),
4
Arizonans have reasonably declined to redefine marriage.
c. The Challenged Marriage Laws Protect the Peoples
Right to Define Marriage for Their Community.
The State also has an important interest in protecting the Peoples collective right
to define marriage for their community. In Windsor, the Supreme Court extolled the
virtue of allow[ing] the formation of consensus when the People seek a voice in
shaping the destiny of their own times on the definition of marriage. 133 S. Ct. at 2692.
Similarly, in Schuette v. BAMN, 134 S. Ct. 1623 (2014), a plurality of the Supreme Court
affirmed the Peoples right to speak and debate and learn and then, as a matter of
political will, to act through a lawful electoral process, id. at 1637, that shape[s] the
course of their own times, id. at 1636-37, on public-policy questions of a sensitive,
complex, delicate, arcane, difficult, divisive, or profound nature, id. at 1637-
38. When Arizonans enacted the marriage laws challenged here, they protected this
collective right to decide one of the most profound and divisive questions of our day.
Because the challenged laws do not violate Plaintiffs fundamental rights, the States
important interest in protecting the Peoples right to democratically decide this social
question amply sustains the challenged laws.

3
See, e.g., J ane Mendle et al., Associations Between Father Absence and Age of First
Sexual Intercourse, 80 Child Dev. 1463, 1463 (2009); Eirini Flouri & Ann Buchanan,
The Role of Father Involvement in Childrens Later Mental Health, 26 J . Adolescence 63,
63 (2003).
4
Other potential adverse consequences are discussed in Defendants Cross-Motion for
Summary J udgment and Memorandum of Law in Support filed in Connolly v. Roche, No.
2:14-cv-00024-J WS (ECF No. 59).
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II. Plaintiff Has Not Shown that the Relief Will Prevent Irreparable Harm.
Plaintiff has the burden to show that irreparable harm is likely. Herb Reed Enters.
v. Fla. Entmt Mgmt., 736 F.3d 1239, 1251 (9th Cir. 2013). The possibility that adequate
compensatory or other corrective relief will be available at a later date, in the ordinary
course of litigation, weighs heavily against a claim of irreparable harm. Sampson v.
Murray, 415 U.S. 61, 90 (1974) (internal quotation marks omitted).
Plaintiff argues that he has shown irreparable harm primarily because he believes
that the challenged marriage laws violate his constitutional rights. TRO Mem. at 11. But
because, as explained above, those laws do not contravene the Fourteenth Amendment,
Plaintiff has not shown an irreparable harm deriving from a constitutional violation.
Plaintiff also raises an asserted dignity harm from the fact that the State does not
recognize his California marriage to Mr. Martinez. TRO Mem. at 12. That asserted harm,
however, mirrors dignity-based allegations of the many same-sex couples in States like
Virginia and Utah. Yet the Supreme Court has stayed the injunctions entered in favor of
those couples. See Kitchen, 134 S. Ct. at 893; Evans, 2014 WL 3557112, at *1; McQuigg,
2014 WL 4096232, at *1. That counsels strongly against granting Plaintiffs motion.
Plaintiff also claims harm from the fact that Mr. Martinezs death certificate will
not list Plaintiff as the surviving spouse. TRO Mem. at 13-14. That, however, is not an
irreparable injury. As Plaintiff himself admits, see id. at 14, Arizona law permits him to
obtain an amended death certificate should he eventually prevail in this case. See Ariz.
Admin. Code R9-19-115 (enacted under the authority of Ariz. Rev. Stat. 36-323(A)).
Plaintiff also alleges monetary harm, arguing that a death certificate that lists him
as Mr. Martinezs surviving spouse would allow him to access social-security and
veterans-affairs benefits for surviving spouses. TRO Mem. at 14-15. But even if Plaintiff
receives an order compelling recognition of his California marriage license, federal law
independently bars him from accessing those benefits. Plaintiff cannot obtain social-
security benefits as a surviving spouse because he received his marriage license less than
nine months before Mr. Martinez passed away. See 20 C.F.R. 404.335(a)(1); Social
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Security Program Operations Manual System, GN 00305.100, TN 31 (05-04), J uly 17,
2006, https://secure.ssa.gov/poms.nsf/lnx/0200305100 (last visited Sept. 6, 2014);
McQuire Supp. Decl. 5.
5
Similarly, Plaintiff cannot acquire the veterans-affairs benefits
that he has identified because (1) he received his California marriage license more than
fifteen years after Mr. Martinezs military service ended and less than one year before
Mr. Martinez passed away and (2) they did not have a child. See 38 U.S.C. 1304; 38
C.F.R. 3.54(c); U.S. Dept of Veterans Affairs, Compensation, http://benefits.va.gov/
COMPENSATION/types-dependency and indemnity.asp (last visited Sept. 6, 2014);
McQuire Supp. Decl. 5, 9; Martinez Decl. 2-3 (ECF No. 61) (Ex. D). Thus, forcing
the State to recognize Plaintiffs California marriage license would not enable him to
obtain the social-security and veterans-affairs benefits that he has identified.
Even if Plaintiff could attribute this asserted financial harm to the State, [i]t is
well established that monetary injury is not normally considered irreparable. L.A.
Meml Coliseum Commn v. Natl Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).
Mere injuries, however substantial, in terms of money . . . are not enough. Sampson,
415 U.S. at 90. Nor does Plaintiff establish irreparable harm through his speculation that
if he does not obtain immediate injunctive relief, he might lose his house before this
litigation concludes. TRO Mem. at 15. Speculative injury does not constitute irreparable
injury sufficient to warrant granting a preliminary injunction or a temporary restraining
order. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).
III. The Balance of Equities Weighs Decidedly in Defendants Favor.
While Plaintiff has failed to establish irreparable harm, Defendants and the People
that they represent will surely experience irreparable harm if the Court were to enjoin the

5
Nor can Plaintiff establish any of the alternative requirements for obtaining these
benefits. See 20 C.F.R. 404.335(a)(2)-(4). Plaintiffs declarations show that he did not
expect Mr. Martinez to live for nine months after obtaining the marriage license, that Mr.
Martinezs death did not result by accident or occur in the line of duty, that they did not
previously marry, and that neither of them has a child. See McQuire Supp. Decl. 5, 8-
9; McQuire Decl. 3-4, 10, 13-14 (ECF No. 61) (Ex. E).
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States man-woman marriage laws as Plaintiff requests. [I]t is clear that a state suffers
irreparable injury whenever an enactment of its people or their representatives is
enjoined. Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (emphasis
added). In addition, enjoining Arizonas man-woman marriage laws (even for a limited
purpose) would annul in part the exercise of a fundamental right held . . . by all in
commonnamely, the right to speak and debate and learn and then, as a matter of
political will, to act through a lawful electoral process. Schuette, 134 S. Ct. at 1637.
The Supreme Court has already confirmed that States experience irreparable harm
when courts enjoin their man-woman marriage laws. By repeatedly staying injunctions
against States man-woman marriage laws, see Kitchen, 134 S. Ct. at 893; Evans, 2014
WL 3557112, at *1; McQuigg, 2014 WL 4096232, at *1, the Supreme Court has found a
likelihood that irreparable harm will result from enjoining those laws. Hollingsworth,
558 U.S. at 190 (outlining the standard for granting the stay). That irreparable harm
shows that the balance of equities tips sharply against Plaintiffs request for relief.
IV. The Public Interest Does Not Support Plaintiffs Motion.
Through a statewide election in 2008, Arizonans reaffirmed their considered
perspective on the . . . institution of marriage to ensure that the People themselves would
shap[e] the destiny of their own times on the meaning of marriage. See Windsor, 133 S.
Ct. at 2692-93. Plaintiff, however, seeks to displace the publics voice, as reflected in the
votes of more than 1.2 million Arizonans, on this issue of profound importance. The
public interest thus does not support Plaintiffs motion.
V. If the Court Grants Plaintiffs Motion, the Court Should Carefully Craft Its
Order.
For the foregoing reasons, Defendants oppose the relief that Plaintiff requests in
this motion. But if the Court agrees with Plaintiffs arguments, the Court should limit its
order in light of the following considerations.
First, notwithstanding Plaintiffs request, the Court should not declare that
[Plaintiffs] California marriage to George Martinez is valid under Arizona law for all
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purposes. TRO Mem. at 17. The for all purposes language is too broad because the
exigency for Plaintiffs motion is Mr. Martinezs death certificate. Any declaration that
this Court issues should thus be limited to that purpose, which is precisely what Plaintiff
focuses on in the third and fourth prongs of the relief that he seeks. See id.
Second, contrary to Plaintiffs suggestion, see id. at 1, the Court should not enjoin
all three DefendantsMichael K. J eanes, Will Humble, and David Raber. Although Mr.
Humble (the Director of the Department of Health Services) would be directly involved
in providing the requested death certificate, neither Mr. J eanes (a state-court clerk who
issues marriage licenses) nor Mr. Raber (the Director of the Department of Revenue)
would play any role in providing that relief.
6
Thus, neither Mr. J eanes nor Mr. Raber
should be bound by any temporary injunction because injunctive relief should be no
more burdensomeand no broaderthan necessary to remedy the harm alleged in
Plaintiffs motion. L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir.
2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).
Third, any order granting Plaintiffs motion should unambiguously state that the
relief does not apply to anyone other than him. Clarity on this point is critical to ensure
that Defendants and the public know precisely the scope and effect of any such order.
Conclusion
For these reasons, Defendants request that the Court deny Plaintiffs motion.


6
Plaintiff lacks standing to assert his recognition claim against Mr. J eanes, a state-court
clerk who, aside from one situation not applicable here, lacks authority to recognize out-
of-state marriages. See Bishop v. Smith, Nos. 14-5003, 14-5006, 2014 WL 3537847, at
*15 (10th Cir. J uly 18, 2014) (concluding that plaintiffs lacked standing to raise a
recognition claim against a state-court clerk who issues marriage licenses); J eanes Decl.
5, Connolly v. Roche, No. 2:14-cv-00024-J WS (D. Ariz. J une 10, 2014) (ECF No. 53-2)
(Exhibit 14 supporting Defendants Cross-Motion for Summary J udgment) (declaring
that Mr. J eanes does not recognize out-of-state marriages for any purpose other than
converting a recognized marriage to a covenant marriage). Plaintiff similarly lacks
standing to seek the relief that he requests in this motion from Mr. Raber, a public official
whose duties do not involve preparing death certificates.
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Respectfully submitted this 8th day of September, 2014.

s/ Byron J . Babione

Byron J . Babione
J ames A. Campbell
Kenneth J . Connelly
J . Caleb Dalton
Special Assistant Attorneys General

Thomas C. Horne
Attorney General

Robert L. Ellman
Solicitor General

Kathleen P. Sweeney
Assistant Attorney General

Attorneys for Defendants



Case 2:14-cv-00518-JWS Document 70 Filed 09/08/14 Page 25 of 26

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CERTIFICATE OF SERVICE
I hereby certify that I electronically transmitted the attached document to the
Clerks Office using the CM/ECF System for filing and service of a Notice of Electronic
Filing to the following recipients on this 8th day of September, 2014:

J ennifer C. Pizer
Carmina Ocampo
Lambda Legal Defense & Education Fund, Inc.
4221 Wilshire Blvd., Suite 280
Los Angeles, CA 90010
jpizer@lambdalegal.org
cocampo@lambdalegal.org

Paul F. Eckstein
Daniel C. Barr
Kirstin T. Eidenbach
Barry G. Stratford
Alexis E. Danneman
Perkins Coie LLP
2901 North Central Avenue, Suite 2000
Phoenix, AZ 85012-2788
PEckstein@perkinscoie.com
DBarr@perkinscoie.com
KEidenbach@perkinscoie.com
BStratford@perkinscoie.com
ADanneman@perkinscoie.com
DocketPHX@perkinscoie.com

Attorneys for Plaintiff


Dated: September 8, 2014
s/ Byron J . Babione

Byron J . Babione


Case 2:14-cv-00518-JWS Document 70 Filed 09/08/14 Page 26 of 26