UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

PAUL HARD, spouse and next best friend of
CHARLES DAVID FANCHER, deceased;

Plaintiff,

v.

ROBERT BENTLEY, in his official capacity as
Governor of the State of Alabama; LUTHER
JOHNSON STRANGE III in his official capacity
as Attorney General of the State of Alabama,

Defendants,

And

PAT FANCHER,

Intervenor-Defendant.





Civil Action No. 2:13-cv-922-WKW



PLAINTIFF PAUL HARDS REPLY
IN FURTHER SUPPORT OF HIS
MOTION FOR SUMMARY
JUDGMENT AND OPPOSITION TO
DEFENDANTS MOTIONS FOR
SUMMARY JUDGMENT









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Contents

I. INTRODUCTION...1
II. UNDISPUTED FACTS & OBJECTIONABLE EXPERT TESTIMONY6
III. ARGUMENT..8
A. This Court Is Empowered To Safeguard Plaintiffs Fundamental Constitutional
Rights..8
B. Alabama's Sanctity Laws Violate Plaintiff's Fundamental Rights To Marry and
Remain Married....10
C. The Sanctity Laws Violate the Equal Protection Clause by Discriminating on the
Basis of Sexual Orientation and Sex......15
1. The Sanctity Laws Fail Under Heightened Scrutiny. 16
a. The Sanctity Laws Impermissibly Discriminate Based on Sexual
Orientation.....16
b. The Sanctity Laws Impermissibly Classify on the Basis of Sex.......18
2. The Sanctity Laws Fail Under Rational Basis Review......19
a. The Sanctity Laws Do Not Further Biological Parenthood.. 20
b. The Sanctity Laws Do Not Further Child Welfare or Familial
Bonds .......................................................................................... 21
c. No Other Justification for the Sanctity Laws Survives Rational Basis
Review...23
D. The Defendants' Briefs Reaffirm That the Sanctity Laws Violate Equal
Protection Because They Are Borne of Impermissible Moral Disapproval of
Lesbian and Gay People.....24
IV. CONCLUSION..26
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CASES
DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich. 2014) ..................................................................................... 7
Baker v. Nelson,
409 U.S. 810 (1972) ............................................................................................................. 9, 10
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014), cert. denied, 2014 WL 4425162 (Oct. 6, 2014) ......... 8, 9, 16, 23
Board of Trustees of University of Alabama v. Garrett,
531 U.S. 356 (2011) ................................................................................................................. 25
Boddie v. Connecticut,
401 U.S. 371 (1971) ................................................................................................................. 14
Bostic v. Shaefer,
760 F.3d 352 (4th Cir. 2014), cert. denied, 2014 WL 4230092 (Oct. 6, 2014) ................ passim
Bostic, 760 F.3d at 376. In Loving v. Virginia,
388 U.S. 1 (1967) ..................................................................................................................... 12
Brenner v. Scott,
999 F. Supp. 2d 1278 (N.D. Fla. 2014).................................................................................... 11
Burns v. Hickenlooper,
__ F. Supp. 2d __, 2014 WL 3634834 (D. Colo. July 23, 2014) ............................................. 12
Campbell v. Shinseki,
546 F. Appx 874 (11th Cir. 2013) ............................................................................................ 6
City of Cleburne, Texas v. Cleburne Living Center,
473 U.S. 432 (1985) ..................................................................................................... 20, 24, 25
De Leon v. Perry,
66 (W.D. Tex. 2014) ................................................................................................................ 11
DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich. 2014) ..................................................................................... 2
Department of Agriculture v. Moreno,
413 U.S. 528 (1973) ................................................................................................................... 5
Evans v. Utah,
__ F. Supp. 2d __, 2014 WL 2048343 (D. Utah May 19, 2014) ............................................. 10
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011) ......................................................................................... 18, 19
Henry v. Himes,
__ F. Supp. 2d __, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) ...................................... 2, 10
Hicks v. Miranda,
422 U.S. 332 (1975) ................................................................................................................... 9
Hodgson v. Minnesota,
497 U.S. 417 (1990) ................................................................................................................. 13
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) ........................................................................................................... 18, 19
Johnson v. Robison,
415 U.S. 361 (1974) ................................................................................................................. 22
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014) ........................................................................................ passim
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Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013), affd, 755 F.3d 1193 (10th Cir. 2014) .................. 18, 22
Latta v. Otter,
__ F.3d. __, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) .......................................... 9, 16, 19, 21
Latta v. Otter,
2014 WL 1909999 (D. Idaho May 13, 2014), affd, 2014 WL 4977682................................. 23
Lawrence v. Texas,
539 U.S. 558 (2003) .......................................................................................................... passim
Lofton v. The Secretary of the Department of Children and Family Services,
358 F.3d 804 (11th Cir. 2004) ........................................................................................... 16, 17
Love v. Beshear,
989 F. Supp. 2d 536 (W.D. Ky. 2014) ..................................................................................... 18
Loving v. Virginia,
388 U.S. 1 (1967) .............................................................................................................. passim
Majors v. Jeanes,
__ F. Supp. 2d __, 2014 WL 4541173 (D. Ariz. Sept. 12, 2014) ............................................ 11
Marbury v. Madison,
5 U.S. 137 (1803) ..................................................................................................................... 23
McClain v. Metabolife International, Inc.,
401 F.3d 1233 (11th Cir. 2005) ................................................................................................. 7
Newell Rubbermaid, Inc. v. Raymond Corp.,
676 F.3d 521 (6th Cir. 2012) ..................................................................................................... 7
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) .................................................... 2
Palmore v. Sidoti,
466 U.S. 429 (1984) ................................................................................................................. 25
Planned Parenthood of Se. Pennsylvania v. Casey,
505 U.S. 833 (1992) ................................................................................................................. 14
Plessy v. Ferguson,
163 U.S. 537 (1896) ................................................................................................................. 24
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ................................................................................................................. 18
Robicheaux v. Caldwell,
2 F. Supp. 3d 910 (E.D. La. 2014) ..................................................................................... 10, 11
Romer v. Evans,
517 U.S. 620 (1996) ............................................................................................................. 3, 15
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) ............................................................................................. 17, 18
Strauss v. Horton,
207 P.3d 48 (Cal. 2009) ........................................................................................................... 11
Subsequently, in Zablocki v. Redhail,
434 U.S. 374 (1978) ........................................................................................................... 12, 13
Turner v. Safley,
482 U.S. 78 (1987) ....................................................................................................... 12, 19, 24
United States v. Madden,
733 F.3d 1314 (11th Cir. 2013) ............................................................................................... 17
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iv

United States v. Virginia,
518 U.S. 515 (1996) ................................................................................................................. 16
United States v. Windsor,
133 S. Ct. 2675 (2013) ............................................................................................................... 3
Washington v. Glucksberg,
521 U.S. 702 (1997) ................................................................................................................. 11
West Virginia Board of Education v. Barnette,
319 U.S. 624 (1943) ................................................................................................................... 8
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013) .............................................. 16, 17
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989)................................................................................................ 16
STATUTORY AUTHORITIES
Ala. Code 30-1-19 (West 2014) ................................................................................................. 22
RULES AND REGULATIONS
Fed. R. Civ. P. 56 ............................................................................................................................ 9
Fed. R. Evid.702 ........................................................................................................................... 10
Fed. R. Evid.702(a) ....................................................................................................................... 10
Fed. R. Evid.801(c), 802 ................................................................................................................. 9
CONSTITUTIONAL PROVISIONS
Ala. Const.art. I, 36 .................................................................................................................... 22
U.S. Constitutionthat ....................................................................................................................... 4



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I. INTRODUCTION

Defendants fail to identify any legitimate purpose served by Alabamas Sanctity Laws,
which categorically prohibit recognition of lawful, same-sex marriages. Moreover, Defendants
briefs offer an inaccurate and impotent version of due process and equal protection analyses
under the U.S. Constitution that would, contrary to binding authorities cited in Plaintiffs brief in
support of summary judgment, ECF No. 59 (Pl.s Br.), allow a majority to deny fundamental
rights and basic human dignity and equality to lesbian and gay Alabamians by categorically
excluding them from marriage. This exclusion, as we demonstrated in our opening brief and
summarize again here, violates the Due Process Clause (for the right to marry is fundamental and
no compelling interest is served by precluding lesbians and gays from exercising that right) as
well as the Equal Protection Clause (because Alabamas refusal to recognize same-sex
marriages, while recognizing different-sex marriages, is not even rationally related to the state
interests purportedly advanced).
Defendants justifications for the Sanctity Laws require some significant mental
gymnastics in order to understand. First, Defendants explain that Alabama subscribes to the so-
called conjugal view of marriage. The purpose of conjugal marriage, they say, is to confer
benefits on fertile couples in order to persuade otherwise flighty biological fathers to marry or
remain married to the women they impregnate.
1
This is important, according to Defendants,


1
State Defs. Mem. of Law in Support of Their Mot. for Summ. J., and in Oppn to Pl.s Mot. for
Summ. J. at 2-5, 14-26 (State Defs. Br.), ECF No. 64.
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because it is a good thing when biological parents fulfill their natural duties to their children.
See State Defs. Br. at 5.
2

Regardless of whether Defendants explanation for why Alabama provides marriage to
heterosexual couples is accurate, the explanation for how excluding same-sex couples from
marriage advances those interests is entirely unconvincing. Defendants argument boils down to
this: Defendants first assert that permitting same-sex couples to marry will enshrine in the law
the purported message that mothers and fathers are fungible. See State Defs. Br. at 5.
Defendants then speculate entirely without any factual support of any kind that this message
somehow will discourage biological fathers from entering or remaining in marriages to the
mothers of their children, apparently because Alabamas recognition of same-sex marriages will
convince biological fathers that their maleness is unnecessary to their childrens welfare and so
they need not get married or stay with their children. See State Defs. Br. at 5 (It is reasonable to
think that this new definition could make it less likely that . . . fathers especially . . . will enter
into the commitment of marriage and remain in it.). From this speculative hypothesis,
Defendants conclude that it therefore is rational for Alabama to retain the conjugal definition of
marriage. See id. (emphasis added).


2
Defendants fundamental premise that a household with a biological mother and father is
optimal for children has no support in the record at all (other than inadmissible citations to
select studies that are not in the record). In other marriage equality cases, parties submitted
expert testimony on this question, and courts evaluating that expert testimony uniformly have
rejected the bald assertion that underlies Defendants premise here. See, e.g., DeBoer v. Snyder,
973 F. Supp. 2d 757, 761-68 (E.D. Mich. 2014) (thoroughly rejecting such expert testimony after
a trial); Henry v. Himes, __ F. Supp. 2d __, 2014 WL 1418395, at *16 (S.D. Ohio Apr. 14, 2014)
(This Court further concluded that the overwhelming scientific consensus, based on decades of
peerreviewed [sic] scientific research, shows unequivocally that children raised by same-sex
couples are just as well adjusted as those raised by heterosexual couples.) (citing Obergefell v.
Wymyslo, 962 F. Supp. 2d 968, 995 n.20 (S.D. Ohio 2013)).
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This reasoning is convoluted and speculative. It is also beside the point. The question
posed by this lawsuit is not whether it is rational for Alabama to continue to permit
heterosexuals to marry and enjoy the attendant benefits and obligations; the question is whether
it was constitutional for Alabama, in 1998 and 2006, to enact the Sanctity Laws, which expressly
exclude homosexuals as a class from those same benefits and obligations. Because this express
exclusion burdens the fundamental right to marry, and because it intentionally disadvantages
homosexuals as compared to heterosexuals, Defendants are bound under our constitutional
system to justify the exclusion. It is insufficient for Defendants simply to surmise that conjugal
marriage, which Alabama traditionally has permitted, purportedly keeps men from leaving the
women they impregnate. Defendants must also demonstrate not speculate that recognizing
same-sex marriages would somehow undermine that goal. See, e.g., United States v. Windsor,
133 S. Ct. 2675, 2681 (2013) (closely analyzing actual purpose and burdens of the federal denial
of marriage recognition to same-sex married couples); Romer v. Evans, 517 U.S. 620, 632-33
(1996) (requiring ascertainable relation between the classification and the purpose it served to
ensure that classifications are not drawn for the purpose of disadvantaging the group burdened
by the law).
In any event, common sense tells us that, despite Defendants assertions, Alabamas goal
of enticing men to stay with the women they impregnate is not the only, or even principal, state
purpose for marriage in Alabama. If it were, why would Alabama permit practically all different-
sex couples to marry, including couples who lack the capacity to procreate, the permanently
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incarcerated,
3
the elderly, the severely disabled, and first cousins? See Ala. Code 13A-13-3
(2014). Marriage is more than just a coercive mechanism for binding couples together to take
care of their biological children; marriage is, according to the Supreme Court, the way that many
couples choose to solemnize and memorialize love, companionship, and a commitment of mutual
support. See Windsor, 133 S. Ct. at 2681 (Providing same-sex marriage confers a dignity and
status of immense import and a government denial has the opposite purpose to impose
restrictions and disabilities.).
Defendants heap praise upon so-called conjugal marriage and the ways in which it
strengthens families but ignore entirely the harms caused by the Sanctity Laws, which preclude
lesbian and gay Alabamians from enjoying those same benefits. Among other things, Defendants
ignore the reality that many same-sex couples have children who also stand to benefit from
formal recognition of their parents unions in the same ways as children of heterosexual couples.
See Windsor, 133 S. Ct. at 2694 (noting that same-sex marriage bans make it more difficult for
the children to understand the integrity and closeness of their own family). They also ignore the
concrete harm to Plaintiff in this case, who has been denied compensation for the death of his
husband on an Alabama highway.
4
Fundamentally, Defendants fail to comprehend the extent to
which denying marriage to lesbian and gay Alabamians infringes their constitutional rights to
liberty and equality. See id. (The Constitutions guarantee of equality must at the very least
mean that a bare [governmental] desire to harm a politically unpopular group cannot justify


3
Ala. Dept of Corr., Marriage of Inmate Pers., Admin. Regulation No. 407 (Nov. 16, 1987),
www.doc.state.al.us/docs/AdminRegs/AR407.pdf. Attached as Ex. A to Wolfe Decl. in Further
Support of Pl. Paul Hards Mot. for Summ. J., Oct. 21, 2014 (Wolfe Decl.).
4
Defendants make no effort, of course, to suggest how denying Paul Hard the right to share in
the proceeds of a wrongful death lawsuit advances Alabamas interests in encouraging
biological parents [to] fulfill their natural duties toward their children. See State Defs. Br. at 5.
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disparate treatment of that group.) (quoting Dept of Agric. v. Moreno, 413 U.S. 528, 53435
(1973)).
Remarkably, Defendants claim innocence as to these or any other supposedly unintended
harms the Sanctity Laws have visited on lesbian and gay Alabamians. See State Defs. Br. at 26
(Animus against gays and lesbians could not possibly be the source of the definition of marriage
embodied in Alabamas laws.) (emphasis added). But Defendants cannot simply ignore
Alabamas virulent anti-gay history and policies and pretend that the Sanctity Laws were merely
well-meaning actions intended to confirm Alabamas hopes that men will stay with their
childrens mothers. Defendants do not dispute that the policy of the law in Alabama from its
civil law to its Criminal Code to the educational programs provided to its public-school students
consistently condemns homosexual activity and the homosexual lifestyle. Ex. Parte H.H., 830
So. 2d 21, 31 (Ala. 2002) (Moore, C.J., concurring). The Sanctity Laws, not once but twice,
singled out gay and lesbian Alabamians but not any other Alabamians for specific, disfavored
treatment under the law. The obvious and inescapable purpose of these laws, as Defendant
Fancher frankly admits, was to express moral condemnation of lesbian and gay Alabamians and
their families, providing yet one more basis on which to hold these laws unconstitutional.
* * * *
This Court should grant Plaintiffs motion for summary judgment and declare Alabamas
refusal to recognize lawful same-sex marriages unconstitutional a conclusion consistent with
the rulings of all but one of the more than twenty federal courts, including four Circuit Courts, to
have addressed the issue since Windsor.


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II. UNDISPUTED FACTS & OBJECTIONABLE EXPERT TESTIMONY

Defendants do not dispute any of the material facts listed in Plaintiffs Brief (at 3-7).
Plaintiff generally agrees with the few statements listed as undisputed facts by the Defendants,
except to the extent that Nos. 3 and 4 in the State Defendants Motion For Summary Judgment,
ECF No. 63, suggest a benign motive for the Sanctity Laws. If the Sanctity Laws are borne of
animus, they are per se unconstitutional, Pl.s Br. at 31-33, yet the dispute as to whether the
Sanctity Laws are unconstitutional because of animus is unaffected by Defendants coloring of a
historical gloss on marriage that reduces to the fact that Alabama has always denied marriage to
same-sex couples. See Pl.s Br. at 29-31, ECF No. 59; infra pp. 24-26. The Defendants have
therefore not listed any disputed material facts.
The Court must not consider other facts purportedly reflected in articles that are not a part
of the record. Defendant Fancher cites sociological studies in her brief, at 17-19, for example,
and the State Defendants similarly do so, at 17. The facts purportedly reflected in these
articles, of course, are inadmissible hearsay. Fed. R. Evid. 801(c), 802; see also Fed. R. Civ. P.
56 (A party may object that the material cited to support or dispute a fact cannot be presented in
a form that would be admissible in evidence.).
5

The only expert testimony cited in Defendants briefs comes from one Sherif Girgis. But
the Court should refuse to consider his testimony as well. Girgis currently working towards a
degree in law as well as a PhD in philosophy offers the opinion that conjugal unions are


5
This objection is properly made here, as opposed to a separate motion. See Campbell v.
Shinseki, 546 F. Appx 874, 879 (11th Cir. 2013) ([O]bjecting to the admissibility of evidence
supporting a summary judgment motion is now a part of summary judgment procedure, rather
than a separate motion to be handled preliminarily.).


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superior to other unions, and that there is a possibility that Sanctity Laws may not be animus-
driven because many ancient cultures recognized only different-sex marriages.
Girgiss testimony (1) offers no illumination of any disputed fact; and (2) his cited
testimony amounts to mere personal opinion about the relative value of different-sex marriage
and post-hoc brainstorming about possible benign motivations for the Sanctity Laws. Girgiss
opinions are not the product of reliable principles and methods as required under Fed. R. Evid.
702(b)-(d); they are merely personal opinions of a current graduate student. His opinions are not
based, as they must be under Fed. R. Evid. 702(a), upon scientific, technical, or otherwise
specialized knowledge [that] will help the trier of fact. Instead, his assertions raise red flags that
counsel against considering his testimony at all. To the extent he relies on any evidence, he
predicates his opinions on anecdotes, improper extrapolation, and utter subjectivity. See, e.g.,
McClain v. Metabolife Intl, Inc., 401 F.3d 1233, 1255 (11th Cir. 2005) (rejecting experts
testimony because their opinions were not based on sufficient data and were not the product of
reliable methods); Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir.
2012) (Red flags that caution against certifying an expert include reliance on anecdotal
evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and
subjectivity.) (citation omitted).
Girgis has submitted similar evidence without avail in at least three other federal
marriage equality cases, in New Jersey, Wisconsin, and Michigan. Ex. A to State Defs. Mot. for
Summ. J., Decl. of Sherif Girgis at 7, ECF No. 63-1. The Michigan federal judge rejected Girgis
as an expert on the same topics that he offers in this case because of his general lack of pertinent
expertise and the nature of his testimony that is more of an area that is in debating and talking
about the issue. Trial Tr. vol. 5, pt. B, at 35-37, DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D.
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8

Mich. 2014) (attached as Ex. B to Wolfe Decl.). Michigan was apparently the only case in which
Girgiss opinions were considered, and all three courts eventually ruled in favor of marriage
equality. The personal opinions of a graduate student should not be humored here.
III. ARGUMENT

A. This Court Is Empowered To Safeguard Plaintiffs Fundamental
Constitutional Rights

Defendants would give state legislatures and voters final, unchecked authority to
determine who is and is not deserving of constitutional protections. They argue that this Court
must defer to the Sanctity Laws and uphold Alabamas constitutional amendment denying
recognition of marriage to same-sex couples. Defs. Br. at 31-38. This Court, however, is
undoubtedly empowered to decide Plaintiffs constitutional challenge and afford him the relief
he seeks. See, e.g., Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir. 2014), cert. denied, 2014 WL
4425162 (Oct. 6, 2014) (Minorities trampled on by the democratic process have recourse to
the courts; the recourse is called constitutional law.); Bostic v. Shaefer, 760 F.3d 352, 378
(4th Cir. 2014), cert. denied, 2014 WL 4230092 (Oct. 6, 2014) (The very purpose of a Bill of
Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish them as legal principles to
be applied by the courts. Ones rights to life, liberty, and property . . . and other fundamental
rights may not be submitted to vote; they depend on the outcome of no elections.) (quoting
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)).
Defendants misconstrue Windsor to the same effect by asserting that any restriction on
marriage is outside the realm of federal jurisdiction. Defs. Br. 5-9. But Windsor made clear
that [s]tate laws defining and regulating marriage, of course, must respect the constitutional
rights of persons. Windsor, 133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967));
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Latta v. Otter, __ F.3d. __, 2014 WL 4977682, at *9 (9th Cir. Oct. 7, 2014) (same). Indeed, the
Supreme Court in Windsor held that the federal Defense of Marriage Act (DOMA) violates
basic due process and equal protection principles, Windsor, 133 S. Ct. at 2693, and held
impermissible and unconstitutional DOMAs avowed purpose and practical effect of . . .
impos[ing] a disadvantage, a separate status, and so a stigma on same-sex couples. Id. As
with all other post-Windsor marriage cases, considerations of federalism cannot carry the day
for defendants. Latta, 2014 WL 4977682, at *9. They must instead rely on the substantive
arguments, which are not present here. Id.
Defendants also incorrectly assert that the decades-old summary disposition by the
Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972), compels dismissal of this case. This
position is unavailing primarily because [s]ummary dismissals lose their binding force when
doctrinal developments illustrate that the Supreme Court no longer views a question as
unsubstantial, regardless of whether the Court explicitly overrules the case. Bostic, 760 F.3d at
373 (quoting Hicks v. Miranda, 422 U.S. 332, 344 (1975)). Indeed, every Circuit Court of
Appeal to review the constitutionality of same-sex marriage bans since the Supreme Courts
decision in Windsor has rejected Defendants argument that Baker remains binding precedent.
See Bostic, 760 F.3d at 373-75 (In light of the Supreme Courts apparent abandonment of Baker
and the significant doctrinal developments that occurred after the Court issued its summary
dismissal in that case, we decline to view Baker as binding precedent.); Latta, 2014 WL
4977682, at *2-3 (explaining that Baker does not preclude review); Baskin, 766 F.3d at 659-60
(same); Kitchen v. Herbert, 755 F.3d 1193, 1204-08 (10th Cir. 2014), cert. denied 14-124, 2014
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WL 3841263 (U.S. Oct. 6, 2014) (same).
6
Therefore, contrary to Defendants assertion, this
Court is unconstrained by Baker in reaching the merits of the case at hand.
B. Alabamas Sanctity Laws Violate Plaintiffs Fundamental Rights To Marry
and Remain Married

Defendants concede, as they must, that [u]nder the Due Process clause, a law may be
subject to heightened scrutiny if it impairs a fundamental right. Defs. Br. at 10. Plaintiff
identified two independent fundamental rights or interests protected by the Due Process Clause
but infringed by the Sanctity Laws: (1) the right of marriage; and (2) the interest in remaining
married. Pl.s Br. at 8-14.
With respect to Plaintiffs interest in remaining married pursuant to his legally valid
Massachusetts marriage, Defendants fail to offer any response whatsoever, and therefore,
necessarily concede the application of strict scrutiny to the Sanctity Laws as an infringement of
a fundamental liberty interest appropriately protected by the Due Process Clause. Obergefell
v. Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013); accord Henry v. Himes, __ F. Supp. 2d
__, 2014 WL 1418395, at *7 (S.D. Ohio Apr. 14, 2014) (There are a number of fundamental
rights and/or liberty interests protected by the Due Process clause that are implicated by the
marriage recognition ban, including the right to marry, the right to remain married, and the right
to parental autonomy.) (footnote omitted); Evans v. Utah, __ F. Supp. 2d __, 2014 WL
2048343, at *8 (D. Utah May 19, 2014) (The Windsor Court held that divesting married same-
sex couples of the duties and responsibilities that are an essential part of married life violates


6
Nor has any federal district court been restrained by Baker since Windsor was decided. In fact,
the only federal district court to uphold the constitutionality of a states same-sex marriage ban
post-Windsor also resolved the case on the merits though incorrectly. See Robicheaux v.
Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014).
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due process. (quoting Windsor, 133 S. Ct. at 2695)); De Leon v. Perry, 975 F. Supp. 2d, 632,
662 (W.D. Tex. 2014); Strauss v. Horton, 207 P.3d 48, 63 (Cal. 2009).
7

With respect to the fundamental right to marry, there is no disagreement that such a right
exists. Defendants, however, argue that Plaintiff is seeking not the fundamental right to marry
but instead an entirely new right to same-sex marriage. As such, they assert that, in order for this
Court to recognize this new fundamental right and apply strict scrutiny to the asserted
infringement of that right as Plaintiff insists, it must apply the analysis from Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997), which requires the asserted new right to be
objectively, deeply rooted in this Nations history and tradition before it can be recognized.
Defs. Br. at 10-11. Defendants then argue that the right to marry a person of the same gender
[does not] have a deep tradition and that Alabama has always maintained gender-based
exclusions, among others, on who can marry, and therefore, the right to same-sex marriage is not
a fundamental right, foreclosing application of strict scrutiny. Id.
Defendants position is without merit and has been rejected by every post-Windsor
federal district and appellate court save one which has conducted a fundamental rights analysis.
8

See, e.g., Bostic, 760 F.3d at 367; Kitchen, 755 F.3d at 1229-30; Brenner v. Scott, 999 F. Supp.
2d 1278, 1289 (N.D. Fla. 2014) (The right to marry is as fundamental for the plaintiffs in the


7
Defendants Full Faith and Credit argument is not relevant. Defendants argue that the Full Faith
and Credit Clause does not compel Alabama to recognize Plaintiffs Massachusetts marriage.
Plaintiff does not assert a claim under the Full Faith and Credit Clause. Plaintiffs claim that the
Sanctity Laws infringe his fundamental interest in remaining married is brought under the Due
Process Clause and is unrelated to the Full Faith and Credit Clause.
8
Robicheaux is an outlier decision and unpersuasive. Majors v. Jeanes, __ F. Supp. 2d __, 2014
WL 4541173, at *2 (D. Ariz. Sept. 12, 2014) (finding Robicheaux and two pre-Windsor cases
unpersuasive).

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12

cases at bar as for any other person wishing to enter a marriage or have it recognized.); Burns v.
Hickenlooper, __ F. Supp. 2d __, 2014 WL 3634834, at *2 (D. Colo. July 23, 2014) (The Court
agrees with the analysis in Kitchen and Bishop that marriage is a fundamental right and that the
Challenged Laws impermissibly infringe upon that right.); Pl.s Br. at 8-9 (listing cases).
In asserting that Plaintiff seeks a new right to same-sex marriage, instead of simply the
well-established right to marriage, Defendants ignore the Supreme Courts line of marriage cases
that have held that the right to marry is an expansive liberty interest that may stretch to
accommodate changing societal norms. Bostic, 760 F.3d at 376. In Loving v. Virginia, 388 U.S.
1 (1967), the Supreme Court invalidated a state ban on interracial marriage as an unconstitutional
infringement of the fundamental right to marriage. Subsequently, in Zablocki v. Redhail, 434
U.S. 374 (1978), the Supreme Court struck down a statute that required people who were
obligated to pay child support to obtain a court order granting permission to marry before they
could receive a marriage license as unconstitutionally abridging the right to marry. Finally, in
Turner v. Safley, 482 U.S. 78 (1987), the Court struck down a Missouri regulation that prohibited
prison inmates from marrying as a violation of the right to marry. In each of these cases, the
Supreme Court did not narrowly define the rights at stake as the right to interracial marriage,
the right of individuals owing child support to marry, or the right of prison inmates to marry.
Instead, the Supreme Court spoke broadly of the right to marry rather than hinging that right on
the characteristics or circumstances of the persons seeking to claim it. See Bostic, 760 F.3d at
376. By proffering a cramped formulation of the right at issue here, Defendants fail to
appreciate the extent of the liberty at stake. Lawrence v. Texas, 539 U.S. 558, 567 (2003)
(overruling Bowers v. Hardwicks inappropriately narrow framing of the fundamental right at
issue there).
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13

The Supreme Court has held that the liberty interest at stake in the fundamental right to
marry is the freedom of choice of whom to marry that resides with the individual. Loving, 388
U.S. at 12; see also Zablocki, 434 U.S. at 387 (finding unconstitutional a burden on the right to
marry because it affected individuals freedom of choice in an area in which we have held such
freedom to be fundamental) (emphasis added); Hodgson v. Minnesota, 497 U.S. 417, 435
(1990) (explaining that the regulation of constitutionally protected decisions, such as . . . whom
[to] marry, must be predicated on legitimate state concerns other than disagreement with the
choice the individual has made). Therefore, where a person who has been excluded from
exercising an asserted fundamental right comes forward seeking to exercise that right, as Plaintiff
does here, the Supreme Court has indicated that the right should be framed based on the
attributes of the right itself, without reference to the identity or circumstances of the person who
seeks to exercise it.
9

This Court should follow other federal courts and reject Defendants argument that same-
sex couples cannot rely on Loving and other cases reiterating and protecting the fundamental
right to marriage because they involved different-sex couples. See, e.g., Bostic, 760 F.3d at 377.
Specifically, the Fourth Circuit Court of Appeals rejected Defendants argument, reasoning:
Just as it has done in the right-to-marry arena, the [Supreme] Court identified the
right at issue in Lawrence as a matter of choice, explaining that gay and lesbian
individuals like all people enjoy the right to make decisions regarding their
personal relationships. As we note above, the [Supreme] Court reiterated this
theme in Windsor, in which it based its conclusion that section 3 of DOMA was


9
Defendants also resort to the slippery slope argument that invalidation of the Sanctity Laws
based on the recognition of a fundamental right to marry the person of ones choice will
necessarily lead to invalidation of bans on other marriage restrictions such as those prohibiting
incestuous marriages and child marriage. State Defs. Br. 12-14. But this ignores that even
fundamental rights may be permissibly abridged by laws narrowly tailored to support compelling
state interests. Kitchen, 755 F.3d at 1229 (refuting slippery slope arguments).
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14

unconstitutional, in part, on that provisions disrespect for the moral and sexual
choices that accompany a same-sex couples decision to marry. Lawrence and
Windsor indicate that the choices that individuals make in the context of same-sex
relationships enjoy the same constitutional protection as the choices
accompanying opposite-sex relationships. We therefore have no reason to suspect
that the Supreme Court would accord the choice to marry someone of the same
sex any less respect than the choice to marry an opposite-sex individual who is of
a different race [Loving], owes child support [Zablocki], or is imprisoned
[Turner].

Id. (citations omitted).
Defendants argument that same-sex marriage is not deeply rooted in history and tradition
also misses the mark. The fact that same-sex couples have not been allowed to marry is not the
end of the analysis. See Lawrence, 539 U.S. at 572 (History and tradition are the starting point
but not in all cases the ending point of the substantive due process inquiry.) (citation omitted).
History and tradition may be used by courts to identify the interests that the Due Process Clause
protects, but the Supreme Court has made clear that courts should not blindly maintain historical
limitations on who may exercise a right once that right is recognized as fundamental.
With respect to marriage, the Supreme Court has struck down infringements of
fundamental rights even when plaintiffs could not assert a historical claim to those rights. See,
e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847-48 (1992) ([I]nterracial
marriage was illegal in most States in the 19th century, but the Court was no doubt correct in
finding it to be an aspect of liberty protected against state interference by the substantive
component of the Due Process Clause in Loving . . . ); Boddie v. Connecticut, 401 U.S. 371, 376
(1971) (holding that states may not burden the fundamental right to marry a second time, even
though the traditional right to marry did not include a right to divorce and remarry). In doing so,
the Supreme Court has focused on the right being asserted rather than the identity,
characteristics, or circumstances of the person asserting it. This critical distinction that history
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15

and tradition guide what rights substantive due process protects, but not which individuals may
have and exercise them is central to due process analysis but absent from Defendants position.
When the fundamental right at stake here is properly framed and the required due process
analysis applied, it is clear that the Sanctity Laws infringe Plaintiffs fundamental right to
marriage. Consequently, the Sanctity Laws must be subject to strict scrutiny, a searching
standard of review that their arguments cannot withstand.
C. The Sanctity Laws Violate the Equal Protection Clause by Discriminating on
the Basis of Sexual Orientation and Sex

The Sanctity Laws also violate the Equal Protection Clause of the Constitution by
discriminating on the basis of sexual orientation and sex. The Sanctity Laws do not distinguish
between conjugal marriages,

on one hand, and revisionist marriages on the other.
10

Prospective spouses are not queried about their reproductive capabilities, their fitness as parents,
or whether they seek to marry for the purposes of the begetting of children as opposed to
deepening their emotional bond.
11
The only effect of the Sanctity Laws is to bar marriages
between persons of the same sex a formof discrimination that the Equal Protection Clause
neither knows nor tolerates. Romer v. Evans, 517 U.S. 620, 623 (1996) (citations omitted).
1. The Sanctity Laws Fail Under Heightened Scrutiny
Because the Sanctity Laws discriminate based on sexual orientation and sex, they are
subject to heightened scrutiny. Heightened scrutiny applies to sex and other classifications
considered suspect or quasi-suspect, based on criteria developed by the Supreme Court to assess


10
See State Defs. Br. at 3, 9 (defining conjugal marriages as a union of life between man and
woman for the delights of love and the begetting of children).
11
Defendants admit that strictly limiting marriage on conjugal grounds would be unthinkable.
State Defs. Br. at 23.
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16

a groups vulnerability to invidious discrimination. See Windsor v. United States, 699 F.3d 169,
181-82 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013) (discussing standard).
a. The Sanctity Laws Impermissibly Discriminate Based on
Sexual Orientation

Each of the four factors identified by the Supreme Court apply here: sexual orientation is
an immutable characteristic that people cannot or should not be required to change; sexual
orientation bears no relation to a persons ability to contribute to society; sexual orientation
classifications concern a group that has been the target of historical discrimination, and that has
traditionally lacked the power to insulate themselves from attack through use of the political
process. Id. at 182-85; Latta, 2014 WL 4977682 at *4 (holding that marriage classifications
based on sexual orientation require heightened scrutiny); Baskin, 2014 WL 4359059, at *20
(same); accord Pls Br. at 18-19.
Defendants do not dispute the application of these factors, nor do they contend that the
Sanctity Laws have an exceedingly persuasive justification the minimum showing required
for a law to survive heightened scrutiny. United States v. Virginia, 518 U.S. 515, 532-33 (1996).
Instead, Defendants argue that rational basis review applies to Alabamas same-sex marriage
bans based on Lofton v. The Secretary of the Department of Children and Family Services, 358
F.3d 804, 818 (11th Cir. 2004).
The Lofton court did not analyze the level of scrutiny applicable to sexual orientation
discrimination using the Supreme Courts traditional factors. Instead, the court relied on a line of
cases that opined that sexual orientation discrimination was not constitutionally infirm, based
on the legacy of Bowers v. Hardwick, 478 U.S. 186 (1986) and similar decisions. See Woodward
v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cited with approval by Lofton, 358 F.3d
at 818 n.16.
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17

These authorities were repudiated by the Supreme Courts decisions in Lawrence and
Windsor. See Lawrence, 539 U.S. at 577 (The rationale of Bowers does not withstand careful
analysis.).
12
In Lawrence and Windsor, the Court also subjected sexual orientation
classifications to a searching form of review examining both the design, purpose, and effect
of challenged laws, Windsor, 133 S. Ct. at 2689, and whether the government interests served by
the laws were urgent. Lawrence, 539 U.S. at 577. The Court also looked to whether the effect
of the laws was to demean gays and lesbians whose moral and sexual choices the Constitution
protects. Windsor, 133 S. Ct. at 2694; accord Lawrence, 539 U.S. at 578. These inquiries go
well beyond what rational basis review requires, and signal that sexual orientation discrimination
is not to be viewed deferentially. See Windsor, 133 S. Ct. at 2706 (Scalia, J. dissenting)
(acknowledging that the Courts analysis in Windsor bore no resemblance to rational-basis
review); Lawrence, 539 U.S. at 604 (Scalia, J. dissenting) (stating that rational basis review had
been laid waste by the Court).
[P]rior precedent is no longer binding once it has been substantially undermined or
overruled by Supreme Court jurisprudence. United States v. Madden, 733 F.3d 1314, 1319
(11th Cir. 2013) (citations and markings omitted). Cases resembling Lofton have been
recognized as abrogated in sister circuits. See, e.g., SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471, 484 (9th Cir. 2014) (stating there can no longer be any question that gays and


12
The decision in Lofton to not apply heightened scrutiny rested in part on the observation that
all of our sister circuits that have considered the question have declined to treat homosexuals as
a suspect class. Lofton, 358 F.3d at 818. But that is no longer true; the Second, Seventh, and
Ninth Circuits now apply heightened scrutiny for discrimination based on sexual orientation.
Windsor v. United States, 699 F.3d 169, 181-82 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013);
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir. 2014); Baskin, 2014 WL
4359059, at *20.

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18

lesbians are no longer a group or class of individuals normally subject to rational basis review);
Love v. Beshear, 989 F. Supp. 2d 536, 545 (W.D. Ky. 2014) (same). Because Lofton can no
longer be considered controlling, heightened scrutiny applies to Plaintiffs claims.
b. The Sanctity Laws Impermissibly Classify on the Basis of Sex

Sex-based classifications are not permissible under the Fourteenth Amendment without
an exceedingly persuasive justification. United States v. Virginia, 518 U.S. at 531. This is
because of the real danger that government policies that professedly are based on reasonable
considerations in fact may be reflective of archaic and overbroad generalizations about
gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994).
The Sanctity Laws are invalid under this standard because they facially discriminate on the
basis of sex by stating that [m]arriage is inherently a unique relationship between a man and a
woman and Alabama shall not recognize as valid any marriage of parties of the same sex.
Ala. Code 30-1-19 (West 2014); Ala. Const., art. I, 36.03.
The Sanctity Laws codify sex-based stereotypes concerning the societal roles of men and
women, including that men are supposed to partner with women, and that women are supposed
to partner with men. But the Supreme Court has held that similar discrimination based on gender
stereotypes constitutes impermissible sex discrimination. Price Waterhouse v. Hopkins, 490 U.S.
228 (1989); see also Glenn v. Brumby, 663 F.3d 1312, 1319-20 (11th Cir. 2011)
([D]iscriminatory state action [can] not stand on the basis of gender stereotypes . . . the Equal
Protection Clause does not tolerate gender stereotypes.). The same holds true within the
marriage context. See Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013), affd, 755
F.3d 1193 (10th Cir. 2014) (rejecting state argument that marriage exclusion does not classify on
the basis of sex); Latta, 2014 WL 4977682, at *14-29 (Berzon, J., concurring) (providing an in-
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19

depth discussion of Idahos and Nevadas same-sex marriage prohibitions as impermissible sex
discrimination).
The Sanctity Laws are also invalid because the Defendants own rationales supporting
them are steeped in gender stereotypes such as Defendants unfounded theories of sexual
complementarity in parenting, State Defs. Br. at 20, preservation of the distinct offices for
mothers and fathers, id. at 32, and the reflection in the Sanctity Laws that marriage between two
men or two women is not morally correct, id.; see Glenn, 663 F.3d at 1319 (Ever since the
Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent
purpose has been to eliminate discrimination on the basis of gender stereotypes.). Cases like
J.E.B. reject stereotypes about [men and womens] competence or predispositions, J.E.B., 511
U.S. at 142 n.14, especially where a sex-based distinction serves to ratify and perpetuate
invidious, archaic, and overbroad stereotypes about the relative abilities of men and women, id.
at 131. Defendants do not put forth any evidence suggesting that two men or two women cannot
form the expressions of emotional support and public commitment that are required for
marriage. Turner, 482 U.S. at 95. As discussed in Section 2 infra, the Sanctity Laws cannot
withstand any level of scrutiny, much less a searching review.
2. The Sanctity Laws Fail Under Rational Basis Review
The Sanctity Laws violate the Equal Protection Clause under even the most deferential
form of review because the classifications they employ bear no rational relation to a legitimate
state interest. The State Defendants identify two interests purportedly served by the Sanctity
Laws: (1) preserving the link between children and their biological parents; and (2) strengthening
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20

familial bonds and child welfare. See State Defs. Br. at 14.
13
While these goals may be
legitimate in the abstract, their relationship to Alabamas same-sex marriage ban is so
attenuated as to render the distinction arbitrary or irrational. City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 446 (1985).
a. The Sanctity Laws Do Not Further Biological Parenthood
Tellingly, the Sanctity Laws do not encourage parenthood or biological procreation. The
Sanctity Laws do not make procreation or childrearing a requirement for marriage in Alabama.
Marriage can be freely entered into by persons who are elderly, infertile, or prefer to remain
childless provided they are heterosexual. No special privileges or benefits are conferred to
couples that conceive offspring instead of adopt. Parents are not required to foster relationships
with their offspring or ensure that their children will know both a mother and father. State
Defs. Br. at 20. Couples with biological children can also divorce freely and without fault.
The principal purpose and effect of the Sanctity Laws is to deny marriage recognition to
same-sex couples couples who may have biological children of their own.
14
By drawing
illogical distinctions between similarly situated groups, City of Cleburne, 473 U.S. at 448, and
serving only to disadvantag[e] the group burdened by the law, Lawrence, 539 U.S. at 583
(citations omitted), the Sanctity Laws are unconstitutional under all forms of review.


13
The State Defendants refer to this as kinship altruism. State Defs. Br. at 17.
14
According to census data, there are more than 2,100 same-sex couples raising children in the
state of Alabama. See The Williams Institute, Census Snapshot Alabama (2008), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/AlabamaCensus2000Snapshot.pdf
(last visited Oct. 15, 2014). Like different-sex couples, same-sex couples become parents
through a number of means: some conceive, some adopt, some use surrogates, and some have
children from previous relationships.
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21

The State Defendants acknowledge that same-sex couples are specially burdened relative
to different-sex couples, State Defs. Br. at 23, but assert that invalidating the Sanctity Laws on
these grounds will undermine different-sex marriages by conveying the message that two-parent
households are unimportant, and that fathers play a particularly fungible role in the home. Id. at
5, 16. However, such arguments lack both a factual and rational basis. Defendants concede that
recognizing same-sex marriages will not cause an immediate rash of divorces by heterosexual
couples. State Defs. Br. at 15. It is likewise speculative and inconceivable that granting
recognition for same-sex marriage will affect the decision of a member of an opposite-sex
couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a
child. Kitchen, 755 F.3d at 1224. Accordingly, such arguments reflect[] a crass and callous
view of parental love and the parental bond, Latta, 2014 WL 4977682, at *5, and one that
courts have deemed not worthy of response. Id.
15

b. The Sanctity Laws Do Not Further Child Welfare or Familial
Bonds

Although child welfare and familial bonds are undoubtedly important, the Sanctity Laws
bear no rational relation to the promotion of any such interest. The principal effects of the
Sanctity Laws are to humiliate the children of same-sex couples and create instability in their
lives by demeaning their parents unions; depriving their families of legal and social recognition;
turning their grandparents, aunts, uncles and siblings into legal strangers; and exposing them to
economic harm. Windsor, 133 S. Ct. at 2694-95.


15
In addition, it is plausible that witnessing same-sex couples marry and assume familial duties
could communicate to fathers the importance of assuming familial responsibility in their own
lives.
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22

Defendants argue that Johnson v. Robison, 415 U.S. 361 (1974) stands for the simple
proposition that a law that benefits only some people is not subject to an equal protection
challenge just because it might benefit others as well. But Johnson is readily distinguishable on
at least two distinct grounds. First, the law challenged in Johnson conferred a benefit, whereas
the law challenged here confers only a disadvantage. The law at issue in Johnson guaranteed
educational benefits to veterans who had performed active duty. Id. at 362-63. Veterans who
performed alternative civilian service, like conscientious objectors, were excluded by definition.
Id. Unlike the law challenged in Johnson, the Sanctity Laws do not confer a benefit upon
anyone. The Sanctity Laws exist solely to deprive a politically vulnerable population of the
benefits of marriage that are otherwise freely available to all.
Moreover, Defendants incorrectly apply the analysis contained in Johnson.

In upholding
the policy as applied to contentious objectors, the court did not ignore the effect of the law on
groups excluded and consider only the benefits afforded to those granted inclusion.
16
Instead, the
court analyzed whether the groups excluded and included were similarly situated given the laws
aims of incentivizing military participation and facilitating the reentry of military personnel into
civilian life and found that they were not. Id. at 381-82.


16
Defendants analysis to the contrary is not sound. See Kitchen v. Herbert, 961 F. Supp. 2d
1181, 1210-11 (D. Utah 2013), affd, 755 F.3d 1193 (10th Cir. 2014) (The courts focus is not
on whether extending marriage benefits to heterosexual couples serves a legitimate governmental
interest . . . . Instead, courts are required to determine whether there is a rational connection
between the challenged statute and a legitimate state interest. Here, the challenged statute does
not grant marriage benefits to opposite-sex couples. The effect of Amendment 3 is only to
disallow same-sex couples from gaining access to these benefits. The court must therefore
analyze whether the States interests in responsible procreation and optimal child-rearing are
furthered by prohibiting same-sex couples from marrying.).

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23

Same-sex couples and different-sex couples are similarly situated here because the
interest purportedly advanced by the Sanctity Laws promoting child welfare and strengthening
familial bonds benefits them equally. Marriage recognition affords children a sense of
permanence; expands kinship networks and the number of possible caregivers willing to assume
responsibility for a child; and shields children from economic harm, as well as the perceived ills
of being raised in a single parent household. Because the Sanctity Laws withhold legal,
financial, and social benefits from the very group they purportedly protect children, Latta v.
Otter, 2014 WL 1909999, at *24 (D. Idaho May 13, 2014), affd, 2014 WL 4977682 (9th Cir.
Oct. 7, 2014), they are illogical and unjust, and collapse under rational basis review as well as
heightened scrutiny.
c. No Other Justification for the Sanctity Laws Survives Rational
Basis Review

Defendant Fancher also seeks to justify the Sanctity Laws by reference to tradition and
moral teachings including those found in the Bible. See generally Fancher Br. However,
tradition per se therefore cannot be a lawful ground for discrimination regardless of the age of
the tradition. See, e.g., Baskin, 766 F.3d at 666. Nor can moral disapproval. Pl.s Br. at 28;
accord Lawrence, 539 U.S. at 583.
Defendants also urge the Court to proceed with caution, and to uphold the Sanctity
Laws in deference to the legislature and the democratic process. Fancher Br. at 16-17; State
Defs. Br. at 31. These arguments ignore the unique role of courts in American constitutional
design. It is emphatically the province and duty of the judicial department to say what the law
is. Marbury v. Madison, 5 U.S. 137, 177 (1803). Courts have an attendant obligation to ensure
that state laws including laws that regulate marriage respect the constitutional rights of
persons. Windsor, 133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967)).
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The fact that same-sex marriage is the subject of policy debates does not counsel
abstention. If this were so, the Supreme Court could not have desegregated schools or abandoned
the odious decision in Plessy v. Ferguson, 163 U.S. 537 (1896), until the pendulum had swung
for racial minorities. Likewise, Alabama cannot avoid the strictures of [the Equal Protection]
Clause by deferring to the wishes or objections of some fraction of the body politic. City of
Cleburne, 473 U.S. at 448.
The Sanctity Laws are not justified by any of the other reasons cited by Defendants in
passing. A preference for conjugal marriages over revisionist marriage is not a valid state
interest, as it ignores Supreme Court precedents which have found marriages to be
constitutionally protected, even where procreation was not involved. Turner, 482 U.S. at 95-96.
The belief that sexual complementarity aids in child development, which is totally unsupported
by the record, cannot justify policies that subject the children of same-sex couples to social and
economic harm. Windsor, 133 S. Ct. at 2694-95.
Slippery slope arguments fail because prohibitions on incest and polygamy still stand in
the thirty-two jurisdictions that legally recognize same-sex marriage. See Kitchen, 755 F.3d at
1219-20 (discussing Utahs prohibition of polygamy). Religious institutions also remain free to
decide whether or not to solemnize marriages within their congregations. Id. at 1228-29. In
summary, because the Sanctity Laws do not rationally relate to any real or hypothetical state
interest, they violate equal protection under any level of scrutiny.
D. The Defendants Briefs Reaffirm That the Sanctity Laws Violate Equal
Protection Because They Are Borne of Impermissible Moral Disapproval of
Lesbian and Gay People
An independent basis for declaring the Sanctity Laws unconstitutional is that they are
animated by disapproval of gay and lesbian people and their marriages. See Pl.s Br. at 31-33.
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25

Defendants retort is deficient; they assert that animus requires outright hatred, but that is not the
standard for animus. Defendants further rely on illogical assertions that the Sanctity Laws must
have a benign motivation because Alabama has never permitted same-sex marriage. They also
fail to discount explicit moral disapproval of gays and lesbians enshrined elsewhere in Alabama
law.
Defendants inaccurately assert that animus must rise to outright hatred as the basis for a
legal classification in order to invalidate it. See State Defs. Br. at 26. As we previously
described, improper animus can include moral disapproval, Lawrence, 539 U.S. at 582
(OConnor, J., concurring), or negative attitudes, City of Cleburne, 473 U.S. at 448, without
necessarily rising to the level of malicious ill will. Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356, 375 (2011) (Kennedy, J., concurring) (emphasis added).
Defendants own briefs repeatedly affirm that moral disapproval of same-sex marriages is
at the heart of the Sanctity Laws; examples include the admission that the definition of marriage
is a moral issue, State Defs. Br. at 28; [t]here is no morally neutral ground upon which to
decide this case, id. at 32; the presentation of religious based texts as disapproving of same-sex
marriage, Fancher Br. at 9-12, 15; and the framing of the debate as whether homosexual
activity is moral or immoral, id. at 17. Such moral judgments must not be codified as law. The
Supreme Court has long held that [p]rivate biases may be outside the reach of the law, but the
law cannot, directly or indirectly, give them effect. Palmore v. Sidoti, 466 U.S. 429, 433 (1984);
see also Pl.s Br. at 29-31.
Defendants statement that animus is negated by popular vote of Alabamians in favor of
the Sanctity Laws to choose historical or traditional notions of marriage (in which same-sex
marriages have always been excluded), is non-sequitur. See State Defs. Br. at 28. Regardless of
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26

a shared religious or historical understanding of marriage, a majoritys traditional [] view [of]
a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the
practice. Lawrence, 539 U.S. at 577 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting));
see also, e.g., Kitchen, 961 F. Supp. 2d at 1214 (citing Lawrence, 539 U.S. at 57778 ([N]either
history nor tradition could save a law prohibiting miscegenation from constitutional attack.)).
Especially with respect to marriage, a desire to preserv[e] the traditional institution of
marriage is just a kinder way of describing the States moral disapproval of same-sex couples.
Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).
Defendants also argue that the Alabama statute requiring public school teachers to
instruct that homosexuality is unacceptable and homosexual conduct is a criminal offence has
no bearing on the Sanctity Laws because it makes no mention of marriage. State Defs. Br. at 28.
But this argument is divorced from reality. The sex education statute is yet another clear
manifestation of explicit official disapproval of lesbian and gay people, as is similarly reflected
in the Sanctity Laws. The sex education statute, along with the Sanctity Laws and the statute
criminalizing homosexual sex, constitute indelible records of the states targeted legislative
attacks against gay and lesbian individuals. Alabamas moral disapproval of same-sex couples is
the foundation of the Sanctity Laws; they are accordingly invalid.
IV. CONCLUSION
The Sanctity Laws prohibition against recognition of lawful same-sex marriages is
unconstitutional for multiple reasons. The laws burden the fundamental right to marriage and to
remain married; accordingly they must withstand heightened scrutiny a standard that
Defendants do not even attempt to meet. The Sanctity Laws also are subject to (and fail)
heightened scrutiny under the Equal Protection Clause because they discriminate on the basis of
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sex and sexual orientation. Even if the Court subjects the Sanctity Laws only to rational basis
scrutiny, they still violate the Equal Protection Clause because they are unrelated to the proffered
state interest of tying biological fathers to their offsprings mothers. Finally, the Sanctity Laws
violate the Equal Protection Clause for the independent reason that they reflect impermissible
animus against lesbians and gays. For these and for all the foregoing reasons, Plaintiff
respectfully requests that the Court grant his motion for summary judgment and declare the
Sanctity Laws in violation of the Due Process Clause and the Equal Protection Clause.
October 21, 2014
Respectfully submitted,
SOUTHERN POVERTY LAW CENTER
By: s/David C. Dinielli
David C. Dinielli* (California Bar No. 177904)
Samuel Wolfe (ASB-2945-E63W)
400 Washington Avenue
Montgomery, Alabama 36104
Telephone: (334) 956-8200
Facsimile: (334) 856-8481
david.dinielli@splcenter.org
sam.wolfe@splcenter.org
*Application for admission pro hac vice forthcoming

(Attorneys for Plaintiff)








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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21st day of October, 2014, I electronically filed the
foregoing document with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following counsel of record:
David Bryson Byrne, Jr., Esq.
Office of the Governor
State Capitol
600 Dexter Avenue
Suite NB-05
Montgomery, AL 36130

James William Davis, Esq.
Laura Elizabeth Howell, Esq.
State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36130

Gabriel Joseph Smith, Esq.
Foundation For Moral Law
1 Dexter Avenue
Opelika, AL 36103


/s/ Samuel Wolfe, Esq.

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