Kitchen v. HerbertKitchen v. Herbert
Gene C. Schaerr, Special Assistant Attorney General, Salt Lake City, Utah (Brian L. Tarbet, Chief Deputy Attorney General, Parker Douglas, Chief of Staff and General Counsel, Stanford E. Purser, and Philip S. Lott, Assistant Utah Attorneys General, Salt Lake City, Utah, and John J. Bursch, Warner Norcross & Judd LLP, Grand Rapids, Michigan, and Monte N. Stewart, Boise, Idaho, with him on the briefs), for Defendants–Appellants.
Before KELLY, LUCERO, and HOLMES, Circuit Judges.
LUCERO, Circuit Judge.
Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal brought to us by the Governor and Attorney General of the State of Utah from an adverse ruling of the district court.
We are told that because they felt threatened by state-court opinions allowing same-sex marriage, Utah legislators and—by legislature-initiated action—the citizens of the State of Utah amended their statutes and state constitution in 2004 to ensure that the State “will not recognize, enforce, or give legal effect to any law” that provides “substantially equivalent” benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex.
Our Circuit has not previously considered the validity of same-sex marriage bans. When the seed of that question was initially presented to the United States Supreme Court in 1972, the Court did not consider the matter of such substantial moment as to present a justiciable federal question. Baker v. Nelson, 409 U.S. 810 (1972) (per curiam). Since that date, the seed has grown, however. Last year the Court entertained the federal aspect of the issue in striking down § 3 of the Defense of Marriage Act (“DOMA“), United States v. Windsor, 133 S. Ct. 2675 (2013), yet left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?
Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state‘s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.
Utah residents Derek Kitchen and Moudi Sbeity have been in a loving, committed relationship for several years. The couple lives together in Salt Lake City, where they jointly own and operate a business. Kitchen declares that Sbeity “is the man with whom I have fallen in love, the man I want to marry, and the man with whom I want to spend the rest of my life.” In March 2013, Kitchen and Sbeity applied for a marriage license from the Salt Lake County Clerk‘s office, but were denied because they are both men. Being excluded from the institution of marriage has caused Kitchen and Sbeity to undertake a burdensome process of drawing up wills and other legal documents to enable them to make important decisions for each other. Even with these protections, however, the couple cannot access various benefits of marriage, including the ability to file joint state tax returns and hold marital property. Sbeity also states that the legal documents the couple have obtained “do not and cannot provide the dignity, respect, and esteem” of marriage. The inability to “dignify [his] relationship” through marriage, Kitchen explains, communicates to him that his relationship with Sbeity is unworthy of “respect, equal treatment, and social recognition.”
Laurie Wood and Kody Partridge are also Utah residents who wish to “confirm [their] life commitment and love” through marriage. They applied for a marriage license from the Salt Lake County Clerk‘s office in March 2013, but were denied because they are both women. This denial made Wood “feel like a second class citizen.” The couple‘s inability to marry carries financial consequences. Because Partridge will be unable to obtain benefits under Wood‘s pension, the couple has procured additional life insurance
Karen Archer and Kate Call are also Utah residents in a loving, committed relationship. Archer, who suffers from chronic health problems, fears that the legal documents the couple has prepared will be subject to challenge if she passes away. Her past experience surviving other partners informs this fear. Although the documents she prepared in a prior relationship served their purpose when her former partner passed, Archer was ineligible to receive her partner‘s military pension benefits. Seeking the security enjoyed by other married couples, Archer and Call travelled to Iowa in July 2011, where they were wed. Because they could not be married in their home state, financial constraints dictated a modest wedding unattended by family and friends. “Despite the inconvenience and sad pragmatism of our Iowa marriage,” Call explains, “we needed whatever protections and security we could get for our relationship” because of Archer‘s failing health. However, Utah does not recognize Archer and Call‘s marriage.
In March 2013, Kitchen, Sbeity, Wood, Partridge, Archer, and Call filed suit against the Governor and Attorney General of Utah and the Clerk of Salt Lake County (all in their official capacities). Plaintiffs challenged three provisions of Utah law
(1)(a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter.
(b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married.
(2) Nothing in Subsection (1) impairs any contract or other rights, benefits, or duties that are enforceable independently of this section.
(1) Marriage consists only of the legal union between a man and a woman.
(2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.
The State‘s official voter pamphlet described rulings by courts in other states striking down statutory prohibitions on same-sex marriage as inconsistent with state constitutional provisions. In the “arguments for” section, written by a state representative and a state senator, the proponents argued that the Amendment was necessary to protect against a similar state-court ruling. They posited that the proposed amendment would not “promote intolerance, hatred, or bigotry” but would instead “preserve[ an] historic understanding of marriage” rooted in “government‘s strong interest in maintaining public
Plaintiffs allege that Amendment 3 violates their right to due process under the Fourteenth Amendment by depriving them of the fundamental liberty to marry the person of their choice and to have such a marriage recognized. They also claim that Amendment 3 violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs asserted their claims under
On cross motions for summary judgment, the district court ruled in favor of the plaintiffs. It concluded that “[a]ll citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual‘s ability to marry and the intimate choices a person makes about marriage and family.” Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1204 (D. Utah 2013). The court further held that Amendment 3 denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. Id. at 1206-07, 1210-15. It declared Amendment 3
Utah‘s Governor and Attorney General filed a timely notice of appeal and moved to stay the district court‘s decision. Both the district court and this court denied a stay. The Supreme Court, however, granted a stay of the district court‘s injunction pending final disposition of the appeal by this court.
II
We first consider the issue of standing, although it was not raised by the parties. See Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (“[S]tanding is a component of this court‘s jurisdiction, and we are obliged to consider it sua sponte to ensure the existence of an Article III case or controversy.“). To possess Article III standing, a plaintiff must “establish (1) that he or she has suffered an injury in fact; (2) that the injury is fairly traceable to the challenged action of the defendant; and[] (3) that it is likely that the injury will be redressed by a favorable decision.” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir. 2012) (quotations omitted).
Plaintiffs suing public officials can satisfy the causation and redressability requirements of standing by demonstrating “a meaningful nexus” between the defendant and the asserted injury. Bronson v. Swensen, 500 F.3d 1099, 1111-12 (10th Cir. 2007). “[T]he causation element of standing requires the named defendants to possess authority to enforce the complained-of provision,” id. at 1110, and “[t]he redressability prong is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute,” id. at 1111. “Whether the Defendants have enforcement authority is
We have no doubt that at least four of the plaintiffs possessed standing to sue the Salt Lake County Clerk based on their inability to obtain marriage licenses from the Clerk‘s office. Plaintiffs have identified several harms that flow from this denial, including financial injury. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir. 2005) (economic loss may constitute injury-in-fact). Because county clerks are responsible under Utah law for issuing marriage licenses and recording marriage certificates,
Our holding in Bishop turned on the conclusion that marriage licensing and recognition in Oklahoma were “within the administration of the judiciary.” Id. The district court clerk charged with various duties related to marriage “‘is judicial personnel and is an arm of the court . . . subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk‘s administrative district.‘” Id. (quoting Speight v. Presley, 203 P.3d 173, 177 (Okla. 2008) (additional internal quotation omitted)). Accordingly, we concluded that “the executive branch of Oklahoma‘s government has no authority to issue a marriage license or record a marriage.” Id.
In Utah, marriage licenses are issued not by court clerks but by county clerks. See
The Attorney General is required to “exercise supervisory powers over the district and county attorneys of the state in all matters pertaining to the duties of their offices” and “when required by the public service or directed by the governor, assist any county, district, or city attorney in the discharge of his duties.”
For those agencies that now face conflicting laws either in statute or administrative rule, you should consult with the Assistant Attorney Generals assigned to your agency on the best course to resolve those conflicts. You should also advise your analyst in [the Governor‘s Office of Management and Budget] of the plans for addressing the conflicting laws.
Where no conflicting laws exist you should conduct business in compliance with the federal judge‘s ruling until such time that the current district court decision is addressed by the 10th Circuit Court.
Thus, state agencies with responsibility for the recognition of out-of-state marriages are being directed by the Governor in consultation with the Attorney General. These officials’ authority over such agencies is confirmed by Utah law. For example, Plaintiffs Archer and Call, who were married in Iowa, specifically seek to file joint Utah tax returns. Although the Utah State Tax Commission is charged in the first instance with the duty “to administer and supervise the tax laws of the state,”
The same is true with respect to the Governor. Utah‘s “executive power” is “vested in the Governor.”
Having concluded that the Governor and Attorney General were properly made defendants below, we hold that they have standing to appeal the district court‘s decision without participation of the Salt Lake County Clerk. See Finstuen, 496 F.3d at 1151 (“Nothing in Ex Parte Young requires that any appeal of a lower court‘s judgment involve all named state defendants.“). As unsuccessful parties below, both appellants were “injured by the judgment sought to be reviewed.” Parr v. United States, 351 U.S. 513, 516 (1956); see also Concorde Res., Inc. v. Woosley (In re Woosley), 855 F.2d 687, 688 (10th Cir. 1988) (“Ordinarily, only a litigant who is a party below and who is aggrieved by the judgment or order may appeal.” (quotation and emphasis omitted)).
III
In 1972, the Supreme Court summarily “dismissed for want of substantial federal question” an appeal from the Minnesota Supreme Court upholding a ban on same-sex marriage. Baker, 409 U.S. 810. The state court considered “whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled.” Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971). It concluded that the statute used the term “marriage” as “one of common usage, meaning the state of union between persons of the opposite sex.” Id. at 185-86. The state court further reasoned that “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis” and that “[t]he due process clause of the Fourteenth Amendment is not a charter for restructuring [the institution of marriage] by judicial legislation.” Id. at 186. As to the Equal Protection Clause, the court ruled that “[t]here is no irrational or invidious discrimination” because “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Id. at 187.
do not, however, have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits. A summary dismissal of an appeal represents no more than a view that the judgment appealed from was correct as to those federal questions raised and necessary to the decision. It does not, as we have continued to stress, necessarily reflect our agreement with the opinion of the court whose judgment is appealed.
Id. (citations omitted); see Neely v. Newton, 149 F.3d 1074, 1079 (10th Cir. 1998) (“The Supreme Court has cautioned that for purposes of determining the binding effect of a summary action, the action should not be interpreted as adopting the rationale of the lower court, but rather as affirming only the judgment of that court.“). “Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). And “[t]hey do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Id. “[I]f the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344 (1975)
Two landmark decisions by the Supreme Court have undermined the notion that the question presented in Baker is insubstantial. Baker was decided before the Supreme Court held that “intimate conduct with another person . . . can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Lawrence v. Texas, 539 U.S. 558, 567 (2003). The decision in Baker also pre-dates the Court‘s opinion in Windsor. Several courts held prior to Windsor that Baker controlled the same-sex marriage question. See, e.g., Massachusetts v. U.S. Dep‘t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (”Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.“); Donaldson v. State, 292 P.3d 364, 371 n.5 (Mont. 2012) (“The U.S. Supreme Court‘s action in Baker has been described as binding precedent.” (citations omitted)). However, since Windsor was decided, nearly every federal court to have considered the issue—including the district court below—has ruled that Baker does not control. See Wolf v.
We acknowledge that the question presented in Windsor is not identical to the question before us. DOMA interfered with New York‘s decision “that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons,” a decision designed to “correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.” Windsor, 133 S. Ct. at 2689. The “State used its historic and essential authority to define the marital relation in this way,” and “its role and its
Appellants stress the presence of these federalism concerns in Windsor, which, as the Chief Justice noted in dissent, “come into play on the other side of the board in . . . cases about the constitutionality of state” bans on same-sex marriage. Id. at 2697 (Roberts, C.J., dissenting). The Windsor majority stated repeatedly that the regulation of marriage has traditionally been a state function. See id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” (quotation and citation omitted)); id. (“The states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . .” (quotation and alterations omitted)); id. (“Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.“). Appellants urge us to conclude that the “principles of federalism that
However, the Windsor Court also explained that the federal government “in enacting discrete statutes, can make determinations that bear on marital rights and privileges.” Id. at 2690. For example, Congress can preempt state marriage laws dealing with insurance proceeds in a federal program, reject sham marriages for immigration purposes even if the marriage is valid under state law, and recognize common-law marriage for the purpose of establishing income-based Social Security benefit eligibility regardless of state law. Id. The Windsor Court concluded it was “unnecessary to decide whether” DOMA “is a violation of the Constitution because it disrupts the federal balance.” Id. at 2692.
Rather than relying on federalism principles, the Court framed the question presented as whether the “injury and indignity” caused by DOMA “is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” Id. And the Court answered that question in the affirmative:
The liberty protected by the Fifth Amendment‘s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
Id. at 2695 (citations omitted).
“The history of DOMA‘s enactment and its own text,” the Court concluded, “demonstrate that interference with the equal dignity of same-sex marriages, a dignity
The Windsor majority expressly cabined its holding to state-recognized marriages, id. at 2696, and is thus not directly controlling. But the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored. This is particularly true with respect to plaintiffs Archer and Call, who seek recognition by Utah of a marriage that is valid in the state where it was performed. More generally, all six plaintiffs seek equal dignity for their marital aspirations. All claim that the state‘s differential treatment of them as compared to opposite-sex couples demeans and undermines their relationships and their personal autonomy. Although reasonable judges may disagree on the merits of the same-sex marriage question, we think it is clear that
IV
We turn now to the merits of the issue before us. We must first decide whether the liberty interest protected in this case includes the right to marry, and whether that right is limited, as appellants contend, to those who would wed a person of the opposite sex.
The district court granted summary judgment in favor of the plaintiffs. We review a grant of summary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir. 2009). A party is entitled to summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the movant is entitled to judgment as a matter of law. Id.; see
“We review the decision to grant a permanent injunction for abuse of discretion.” FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009). To obtain a permanent injunction, a plaintiff must show: “(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not
A
“[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” Planned Parenthood v. Casey, 505 U.S. 833, 846-47 (1992) (quotation omitted). The doctrine of substantive due process extends protections to fundamental rights “in addition to the specific freedoms protected by the Bill of Rights.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997); see also Casey, 505 U.S. at 848 (“Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.“). To qualify as “fundamental,” a right must be “objectively, deeply rooted in this Nation‘s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Glucksberg, 521 U.S. at 720-21 (quotations omitted).
1
There can be little doubt that the right to marry is a fundamental liberty. The marital relationship is
Griswold v. Connecticut, 381 U.S. 479, 486 (1965). The Court has long recognized that marriage is “the most important relation in life.” Maynard v. Hill, 125 U.S. 190, 205 (1888). “Without doubt,” the liberty protected by the
Appellants contend that these precedents and others establish only that opposite-sex marriage is a fundamental right. They highlight the Court‘s admonition to undertake a “careful description of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721 (quotation omitted). “This approach tends to rein in the subjective elements that are necessarily present in due-process judicial review.” Id.; see also Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (courts must exercise “utmost care” and be “reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended“). A right to same-sex marriage cannot be deeply rooted in our tradition, appellants argue, because “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” Windsor, 133 S. Ct. at 2689; see also id. at 2715 (Alito, J.,
But “the right to marry is of fundamental importance for all individuals.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978). In numerous cases, the Court has discussed the right to marry at a broader level of generality than would be consistent with appellants’ argument. The Loving Court concluded that a state statute voiding marriages between white and non-white participants violated the Due Process Clause. 388 U.S. at 4 n.3, 12.
Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State‘s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Id. at 12 (quotation and citation omitted).
As the Court later explained, “[m]arriage is mentioned nowhere in the Bill of Rights and interracial 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 v. Virginia.” Casey, 505 U.S. at 847-48 (citation omitted); see also Lawrence, 539 U.S. at 577-78 (“[N]either history nor tradition could save a law prohibiting miscegenation from
Similarly, Zablocki considered an equal protection challenge to a state law barring individuals in arrearage of child support obligations from marrying. Because “the right to marry is of fundamental importance” and “the classification at issue . . . significantly interfere[d] with the exercise of that right,” the Court determined that “critical examination of the state interests advanced in support of the classification [wa]s required.” Zablocki, 434 U.S. at 383 (quotation omitted). It cautioned that not “every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” Id. at 386. But the statute at issue was impermissible because it constituted a “serious intrusion into [the] freedom of choice in an area in which we have held such freedom to be fundamental” and could not “be upheld unless it [wa]s supported by sufficiently important state interests and [wa]s closely tailored to effectuate only those interests.” Id. at 387, 388. The right at issue was characterized as the right to marry, not as the right of child-support debtors to marry.
2
But the Court has also described the fundamental right to marry as separate from the right to procreate, including in Glucksberg itself, the case upon which appellants’ fundamental-right argument turns. See Glucksberg, 521 U.S. at 720 (describing Loving as a right-to-marry case and Skinner as a right-to-procreate case); accord M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (same). Appellants’ contention that the right to marriage is fundamental because of its procreative potential is also undercut by Turner v. Safley, 482 U.S. 78 (1987).
In Turner, the Court invalidated a prison rule barring inmates from marrying unless a prison superintendent found compelling reasons for the marriage. Id. at 81-82. “[G]enerally only a pregnancy or the birth of an illegitimate child would be considered a compelling reason.” Id. at 82. Thus, the challenged rule operated to bar inmates who had
The Turner Court‘s description of the “important attributes of marriage [that] remain . . . after taking into account the limitations imposed by prison life,” 482 U.S. at 95, is relevant to the case at bar:
First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a pre-condition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
Id. at 95-96. The Court ruled that “these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context” even under the “reasonable relationship test” applicable to prison regulations. Id. at 96-97.4
We must reject appellants’ efforts to downplay the importance of the personal elements inherent in the institution of marriage, which they contend are “not the principal
Of course, the Windsor decision dealt with federal recognition of marriages performed under state law. But with respect to plaintiffs Archer and Call, who were married in Iowa and whose marriage Utah will not recognize under Amendment 3, the analogy to Windsor is particularly apt. Amendment 3‘s non-recognition provision, like DOMA,
contrives to deprive some couples married under the laws of [another] State, but not other couples, of both rights and responsibilities. . . . By this dynamic [Amendment 3] undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [Utah‘s] recognition. . . . The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.
In light of Windsor, we agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married. See Latta, 2014 U.S. Dist. LEXIS 66417, at *40 (“Idaho‘s Marriage Laws render the Plaintiff couples legal strangers, stripping them of the choice to marry or remain married in the state they call home. Therefore, Idaho‘s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry.“); Henry v. Himes, No. 1:14-cv-129, 2014 U.S. Dist. LEXIS 51211, at *22 (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)); De Leon, 2014 U.S. Dist. LEXIS 26236, at *66 (“[B]y declaring existing, lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process.“); Obergefell, 962 F. Supp. 2d at 978 (“The right to remain married is . . . properly recognized as one that is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution.“)6
adults may choose to enter upon [an intimate] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Appellants’ assertion that the right to marry is fundamental because it is linked to procreation is further undermined by the fact that individuals have a fundamental right to choose against reproduction. “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis omitted); see also Griswold, 381 U.S. at 485-86 (recognizing right of married individuals to use contraception).
The Court has repeatedly referenced the raising of children—rather than just their creation—as a key factor in the inviolability of marital and familial choices. See, e.g.,
Children of same-sex couples may lack a biological connection to at least one parent, but “biological relationships are not [the] exclusive determina[nt] of the existence of a family.” Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843 (1977). “[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promoting a way of life through the instruction
Appellants urge us to conclude that a court cannot determine whether there is a right to marriage without first defining the institution. They also say that the term “marriage” by its nature excludes same-sex couples. Glucksberg requires us to develop a “careful description of the asserted fundamental liberty interest,” relying on “[o]ur Nation‘s history, legal traditions, and practices [to] provide the crucial guideposts for responsible decisionmaking.” 521 U.S. at 721 (quotation omitted). But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex. As we have discussed, the Supreme Court has traditionally
Prior to the Windsor decision, several courts concluded that the well-established right to marry eo ipso cannot be exercised by those who would choose a spouse of the same sex. See, e.g., Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1094-98 (D. Haw. 2012) (“[T]he right at issue here is an asserted new right to same-sex marriage.“); Andersen v. King Cnty., 138 P.3d 963, 979 (Wash. 2006) (en banc) (“Plaintiffs have not established that at this time the fundamental right to marry includes the right to marry a person of the same sex.“); Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006) (“[B]y defining marriage as it has, the New York Legislature has not restricted the exercise of a fundamental right.“). We nonetheless agree with plaintiffs that in describing the liberty interest at stake, it is impermissible to focus on the identity or class-membership of the individual exercising the right. See De Leon, 2014 U.S. Dist. LEXIS 26236, at *58-59 (a
Appellants’ assertion that plaintiffs are excluded from the institution of marriage by definition is wholly circular. Nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages. See Bostic, 970 F. Supp. 2d at 473 (“Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships.“). Appellants’ reliance on the modifier “definitional” does not serve a meaningful function in this context. To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so. One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage. But “neither history nor tradition could save a law prohibiting miscegenation
Our conclusion that we are not required to defer to Utah‘s characterization of its ban on same-sex marriage as a “definition” is reinforced by the Court‘s opinion in Windsor. Section 3 of DOMA, which the Court invalidated, “amend[ed] the Dictionary Act . . . of the United States Code to provide a federal definition of ‘marriage’ and ‘spouse.‘” Windsor, 133 S. Ct. at 2683. In relevant part, the statute read: “‘[T]he word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.‘” Id. (quoting
Whether a state has good reason to exclude individuals from the marital relationship based on a specific characteristic certainly comes into play in determining if the classification survives the appropriate level of scrutiny. Even when a fundamental right is impinged, “[s]trict scrutiny is not ‘strict in theory, but fatal in fact.‘” Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237 (1995)). But the challenged classification cannot itself define the scope of the right at issue. The judiciary‘s “obligation is to define the liberty of all.” Casey, 505 U.S. at 850. Although courts may be tempted “to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified . . . . such a view would be inconsistent with our law.” Id. at 847 (citation omitted). “A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996).
3
The Supreme Court‘s sexual orientation jurisprudence further precludes us from defining the fundamental right at issue in the manner sought by the appellants. In Lawrence, the Court struck down as violative of due process a statute that prohibited sexual conduct between individuals of the same sex. The Court reversed Bowers v. Hardwick, 478 U.S. 186 (1986), which in upholding a similar statute had framed the question as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id. at 190. The Lawrence Court held that this framing “fail[ed] to appreciate the extent of the liberty at stake” and “misapprehended the claim of liberty there presented to it.” 539 U.S. at 567.
The Court acknowledged that “for centuries there have been powerful voices to condemn homosexual conduct as immoral,” but held that its obligation was “to define the liberty of all, not to mandate our own moral code.” Id. at 571 (quotation omitted). “[B]efore 1961 all 50 States had outlawed sodomy,” yet “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Id. at 572 (quotation omitted). The Court firmly rejected Bowers’ characterization of the liberty at issue: “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Id. at 567.
The Court‘s rejection of the manner in which Bowers described the liberty interest involved is applicable to the framing of the issue before us. There was clearly no history of a protected right to “homosexual sodomy,” just as there is no lengthy tradition of same-sex marriage. But the Lawrence opinion indicates that the approach urged by appellants is too narrow. Just as it was improper to ask whether there is a right to engage
We must also note that Lawrence itself alluded to marriage, stating that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” 539 U.S. at 574. The Court quoted Casey‘s holding that matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment” and ruled that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Lawrence, 539 U.S. at 574 (quotation omitted).
The drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Id. at 579. A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the
B
The Due Process Clause “forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993) (quotation and emphasis omitted). By the same token, if a classification “impinge[s] upon the exercise of a fundamental right,” the Equal Protection Clause requires “the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17 (1982) (quotation omitted). Having persuaded us that the right to marry is a fundamental liberty, plaintiffs will prevail on their due process and equal protection claims unless appellants can show that Amendment 3 survives strict scrutiny.
A provision subject to strict scrutiny “cannot rest upon a generalized assertion as to the classification‘s relevance to its goals.” Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989). “The purpose of the narrow tailoring requirement is to ensure that the means chosen fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate.” Grutter, 539 U.S. at 333 (quotation
Appellants advance four justifications for Amendment 3. They contend it furthers the state‘s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children“; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home“; (3) “ensuring adequate reproduction“; and (4) “accommodating religious freedom and reducing the potential for civic strife.”
1
We will assume that the first three rationales asserted by appellants are compelling. These justifications falter, however, on the means prong of the strict scrutiny test. Each rests on a link between marriage and procreation. Appellants contend that Utah has “steadfastly sought to reserve unique social recognition for man-woman marriage so as to guide as many procreative couples as possible into the optimal, conjugal childrearing model“; that “children suffer when procreation and childrearing occur outside stable man-woman marriages“; and that “[b]y providing special privileges and status to couples that are uniquely capable of producing offspring without biological assistance from third parties, the State sends a clear if subtle message to all of its citizens that natural reproduction is healthy, desirable and highly valued.” (Emphasis omitted.) The common thread running through each of appellants’ first three arguments is the claim that allowing same-sex couples to marry “would break the critical conceptual link between marriage and procreation.”
Such a mismatch between the class identified by a challenged law and the characteristic allegedly relevant to the state‘s interest is precisely the type of imprecision prohibited by heightened scrutiny. See Shaw v. Hunt, 517 U.S. 899, 908 (1996) (“The means chosen to accomplish the State‘s asserted purpose must be specifically and narrowly framed to accomplish that purpose.” (quotation and alteration omitted)). Utah‘s ban on polygamy, for example, is justified by arguments against polygamy. See
Instead of explaining why same-sex marriage qua same-sex marriage is undesirable, each of the appellants’ justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples. Same-sex marriage must be banned, appellants argue, because same-sex couples are not naturally procreative. But the state permits many other types of non-procreative couples to wed. See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples . . . ? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.“). Same-sex marriage
Several recent district court decisions have rejected nearly identical state attempts to justify same-sex marriage bans based on procreative concerns. See Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (“Procreative potential is not a marriage prerequisite.“); Latta, 2014 U.S. Dist. LEXIS 66417, at *68 (“Idaho does not condition marriage licenses or marital benefits on heterosexual couples’ ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate.“); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *37 (“The prerequisites for obtaining a marriage license under Michigan law do not include the ability to have children . . . .“); De Leon, 2014 U.S. Dist. LEXIS 26236, at *44 (“This procreation rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.“); Bostic, 970 F. Supp. 2d. at 478-79 (“The “for-the-children” rationale also fails because it would threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.“).
[I]f the State‘s concern with ensuring a notary‘s familiarity with state law were truly compelling, one would expect the State to give some sort of test actually measuring a person‘s familiarity with the law. The State, however, administers no such test. To become a notary public in Texas, one is merely required to fill out an application that lists one‘s name and address and that answers four questions pertaining to one‘s age, citizenship, residency, and criminal record . . . .
Id. (footnote and quotation omitted). Just as a state cannot justify an alienage classification by reference to a separate characteristic such as familiarity with state law, appellants cannot assert procreative potential as a basis to deny marriage rights to same-sex couples. Under strict scrutiny, the state must justify the specific means it has chosen rather than relying on some other characteristic that correlates loosely with the actual restriction at issue.
Utah law sanctions many marriages that share the characteristic—inability to procreate—ostensibly targeted by Amendment 3. The absence of narrow tailoring is often revealed by such under-inclusiveness. In Zablocki, the state attempted to defend its prohibition on marriage by child-support debtors on the ground that the statute “prevent[ed] the applicants from incurring new support obligations.” 434 U.S. at 390.
A state may not impinge upon the exercise of a fundamental right as to some, but not all, of the individuals who share a characteristic urged to be relevant.
The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.
Eisenstadt, 405 U.S. at 454 (quoting Ry. Express Agency v. New York, 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring)).
Appellants suggest that banning all non-procreative individuals from marrying would be impracticable. But “the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system.” Gratz, 539 U.S. at 275 (quotation omitted). And the appellants provide no explanation for
Among the myriad types of non-procreative couples, only those Utahns who seek to marry a partner of the same sex are categorically excluded from the institution of marriage. Only same-sex couples, appellants claim, need to be excluded to further the state‘s interest in communicating the link between unassisted biological procreation and marriage. As between non-procreative opposite-sex couples and same-sex couples, we
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Extending the benefits and protections of a civil society to some but not all similarly situated families violates this critical guarantee.
2
Appellants argue that procreative couples must be channeled into committed relationships in order to promote the State‘s interests in childbearing and optimal childrearing. This argument fails because the prohibition on same-sex marriage has an insufficient causal connection to the State‘s articulated goals.
It is urged upon us that permitting same-sex couples to marry would have far-reaching and drastic consequences for Utah‘s opposite-sex couples. Appellants contend that the recognition of same-sex marriage would result in a parade of horribles, causing: “parents to raise their existing biological children without the other biological parent” (emphasis omitted); “couples conceiving children without the stability that marriage would otherwise bring“; “a substantial decline in the public‘s interest in marriage“; “adults to [forgo] or severely limit the number of their children based on concerns for their own convenience“; and “a busy or irresponsible parent to believe it‘s appropriate to sacrifice his child‘s welfare to his own needs for independence, free time, etc.”
In some instances, courts “must accord substantial deference to the predictive judgments” of legislative authorities. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (“Turner II“) (quotation omitted).10 “Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable.” Turner I, 512 U.S. at 622. But even under more relaxed forms of scrutiny, a challenged classification “must find some footing in the realities of the subject addressed by the legislation” based on a “reasonably conceivable state of facts.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 320, 321 (1993) (quotation omitted).11
We emphatically agree with the numerous cases decided since Windsor that it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples. As the district court held, “[t]here is no reason to believe that Amendment 3 has any effect on the choices of couples to have or raise children, whether they are opposite-sex couples or same-sex couples.” Kitchen, 961 F. Supp. 2d at 1212. This was the first of several federal court decisions reaching the same conclusion. See Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (“[A]ny governmental interest in responsible procreation is not advanced by denying marriage to gay a[nd] lesbian couples. There is no logical nexus between the interest and the exclusion.“); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *40 (“Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.“); De Leon, 2014 U.S. Dist. LEXIS 26236, at *42-43 (“Defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families.“); Bostic, 970 F. Supp. 2d at 478 (“[R]ecognizing a gay individual‘s fundamental right to marry can in no way influence whether other individuals will marry, or how other individuals will raise families.“); Bishop, 962 F. Supp. 2d at 1291 (“Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.“).
Appellants liken the recognition of same-sex marriage to another change in marriage law, arguing that there is “a compelling parallel between the unintended consequences of no-fault divorce, which harmed children by weakening marriage and fatherhood, and the harms that will likely result” from permitting same-sex couples to marry. We cannot accept appellants’ claim that allowing same-sex couples to marry is analogous to a law that permits married couples to divorce. The former causes an increase in the number of married individuals, whereas the latter decreases the number of marriages in a state. See Wolf, 2014 U.S. Dist. LEXIS 77125, at *117 (“[T]he no-fault divorce rules that defendants cite actually undermine their argument by showing that [the
Setting aside the implausibility of the comparison, we observe that Utah has adopted precisely the no-fault divorce regime that appellants decry in their briefing. See Thronson v. Thronson, 810 P.2d 428, 431 n.3 (Utah Ct. App. 1991) (“Utah added ‘irreconcilable differences’ to its list of nine fault-based grounds [for divorce] in 1987.“); Haumont v. Haumont, 793 P.2d 421, 427 (Utah Ct. App. 1990) (irreconcilable differences subsection “is intended to be a no-fault provision“); see also
A state‘s interest in developing and sustaining committed relationships between childbearing couples is simply not connected to its recognition of same-sex marriages. Regardless of whether some individuals are denied the right to choose their spouse, the same set of duties, responsibilities, and benefits set forth under Utah law apply to those naturally procreative pairings touted by appellants. We cannot imagine a scenario under
3
Appellants also argue that Utah‘s ban on same-sex marriage is justified by gendered parenting preferences. They contend that even for families that are not biologically connected, the state has an interest in limiting marriage to opposite-sex couples because “men and women parent children differently.”
But a prohibition on same-sex marriage is not narrowly tailored toward the goal of encouraging gendered parenting styles. The state does not restrict the right to marry or its recognition of marriage based on compliance with any set of parenting roles, or even parenting quality. See Latta, 2014 U.S. Dist. LEXIS 66417, at *68 (“Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents.“); DeBoer, 2014 U.S. Dist. LEXIS 37274, at *37 (“The prerequisites for
The state‘s child custody regime also belies adherence to a rigidly gendered view of parents’ abilities. See
The Supreme Court has previously rejected state attempts to classify parents with such a broad brush. In Stanley v. Illinois, 405 U.S. 645 (1972), the Court considered the validity of a state law that made children of unwed parents wards of the state upon death of the mother. Id. at 646. The state defended this provision by asserting that “unmarried fathers can reasonably be presumed to be unqualified to raise their children.” Id. at 653. “But all unmarried fathers are not in this category; some are wholly suited to have custody of their children.” Id. at 654. Just as the state law at issue in Stanley “needlessly risk[ed] running roughshod over the important interests of both parent and child,” id. at
Appellants have retreated from any categorical conclusions regarding the quality of same-sex parenting. Although they presented to the district court voluminous scholarship addressing various parenting issues, they now take the position that the social science is unsettled. See Rule 28(j) Letter at 2, No. 13-4178 (10th Cir., filed Apr. 9, 2014) (acknowledging that appellants’ main scientific authority on this issue “cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements“). At oral argument, counsel for appellants stated that “the bottom line” regarding the consequences of same-sex parenting “is that the science is inconclusive.”
Although we assume that the State‘s asserted interest in biological parenting is compelling, this assumption does not require us to accept appellants’ related arguments on faith. We cannot embrace the contention that children raised by opposite-sex parents fare better than children raised by same-sex parents—to the extent appellants continue to press it—in light of their representations to this court. Appellants’ only reasoning in this regard is that there might be advantages in one parenting arrangement that are lacking in the other. On strict scrutiny, an argument based only on pure speculation and conjecture cannot carry the day. See Wisconsin v. Yoder, 406 U.S. 205, 224 (1972) (striking down
Against the State‘s claim of uncertainty we must weigh the harm Amendment 3 currently works against the children of same-sex couples. See Obergefell, 962 F. Supp. 2d at 995 (same-sex marriage bans “harm[] the children of same-sex couples who are denied the protection and stability of having parents who are legally married“). If appellants cannot tell us with any degree of confidence that they believe opposite-sex parenting produces better outcomes on the whole—and they evidently cannot—they fail to justify this palpable harm that the Supreme Court has unequivocally condemned. The Windsor majority, stressing the same detrimental impacts of DOMA, explained that the refusal to recognize same-sex marriages brings “financial harm to children of same-sex couples” and makes “it even more difficult for the children [of same-sex couples] to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. at 2694, 2695.
Windsor thus indicates that same-sex marriage restrictions communicate to children the message that same-sex parents are less deserving of family recognition than other parents. See id. at 2696 (“DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.“). Appellants rely heavily on their predictions that Amendment 3 will encourage adults to make various decisions that
4
Appellants’ fourth and final justification for Amendment 3, “accommodating religious freedom and reducing the potential for civic strife,” fails for reasons
Even assuming that appellants are correct in predicting that some substantial degree of discord will follow state recognition of same-sex marriage, the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights. See, e.g., Palmer v. Thompson, 403 U.S. 217, 226 (1971) (“Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility . . . .“). In Watson v. City of Memphis, 373 U.S. 526 (1963), for example, the Court rejected a city‘s claim that “community confusion and turmoil” permitted it to delay desegregation of its public parks. Id. at 535. And in Cleburne, the Court held that negative attitudes toward the class at issue (intellectually impaired individuals) “are not permissible bases for treating a home for the mentally retarded differently.” 473 U.S. at 448. “It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause, and the city may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic.” Id. (quotation omitted).
Appellants acknowledge that a state may not “invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution.” But they argue that the social and religious strife argument
We also emphasize, as did the district court, that today‘s decision relates solely to civil marriage. See Kitchen, 961 F. Supp. 2d at 1214 (“[T]he court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage.“). Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit. We respect the views advanced by members of various religious communities and their discussions of the theological history of marriage. And we continue to recognize the right of the various religions to define marriage according to their moral, historical, and ethical precepts. Our opinion does not intrude into that domain or the exercise of religious principles in this arena. The right of an officiant to perform or decline to perform a religious ceremony is unaffected by today‘s ruling. See Griego v. Oliver, 316 P.3d 865, 871 (N.M. 2013) (“Our holding [that same-sex marriage is required by the state constitution] will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs.“); Kerrigan v. Comm‘r of Pub. Health, 957 A.2d 407, 475 (Conn. 2008) (“Religious freedom will not be jeopardized by the marriage of same sex couples because religious
C
Appellants raise a number of prudential concerns in addition to the four legal justifications discussed above. They stress the value of democratic decision-making and the benefits of federalism in allowing states to serve as laboratories for the rules concerning marriage. As a matter of policy, it might well be preferable to allow the national debate on same-sex marriage to play out through legislative and democratic channels. Some will no doubt view today’s decision as “robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.” Windsor, 133 S. Ct. at 2711 (Scalia, J., dissenting).
But the judiciary is not empowered to pick and choose the timing of its decisions. “It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants.”
Similarly, the experimental value of federalism cannot overcome plaintiffs’ rights to due process and equal protection. Despite Windsor’s emphasis on state authority over marriage, the Court repeatedly tempered its pronouncements with the caveat that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” 133 S. Ct. at 2691; see also id. at 2692 (“[T]he incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.”); id. (“The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.”). Our federalist structure is designed to “secure[] to citizens the liberties that derive from the diffusion of sovereign power” rather than to limit fundamental freedoms. New York v. United States, 505 U.S. 144, 181 (1992) (quotation omitted).
Another slippery-slope argument brought forward by appellants is that federal constitutional protection for same-sex marriage might lead to the “wholesale ‘privatization’” of marriage through the “enactment of a civil-union regime for all couples, with religious and other organizations being free to offer the title of ‘marriage’ as they see fit.” But they provide no authority for the proposition that an unconstitutional restriction on access to an institution can be saved by the possibility that its privileges—or the name attached to them—could be withdrawn from everyone. If a state were entitled to defend the deprivation of fundamental rights in this way, it might always make the same threat.
Lastly, appellants express concern that a ruling in plaintiffs’ favor will unnecessarily brand those who oppose same-sex marriage as intolerant. We in no way endorse such a view and actively discourage any such reading of today’s opinion.
V
In summary, we hold that under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. We AFFIRM the judgment of the district court.
In consideration of the Supreme Court’s decision to stay the district court’s injunction pending the appeal to our circuit, we conclude it is appropriate to STAY our
It is so ordered.
I concur with the court’s result that Plaintiffs have standing to challenge the provisions at issue,1 that the Salt Lake County Clerk, Governor, and Attorney General were proper Defendants, and that the appeal may proceed despite the absence of the Salt Lake County Clerk. I disagree with this court’s conclusions that (1) Baker v. Nelson, 409 U.S. 810 (1972), need not be followed and that (2) the liberty guaranteed by the Fourteenth Amendment includes a fundamental right which requires Utah to extend marriage to same-gender couples and recognize same-gender marriages from other states. Because I conclude that there is no such fundamental right, it is unnecessary to consider whether Utah’s justifications for retaining its repeatedly-enacted concept of marriage pass heightened scrutiny. In my view, the provisions should be analyzed under traditional equal protection analysis and upheld as rationally related to (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.
“Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,” at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage. See United States v. Windsor, 133 S. Ct. 2675, 2714 (2013) (Alito, J., dissenting). The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. See Windsor, 133 S. Ct. at 2691-92. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender. Indeed, the Court has been less than solicitious of plural marriages or polygamy.
If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head. See Bond v. United States, 131 S. Ct. 2355, 2364 (2011) (explaining that federalism allows for state responses instead of relying upon the eventuality of a federal policy). Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this (including whether to extend marriage to same-gender couples) is inevitable. See id.;
A. Baker v. Nelson
The starting point for a claim that same-gender marriage is required by the Constitution must be the Constitution. Because the Constitution does not speak to the issue of same-gender marriage—or marriage at all—the next step is to review the Supreme Court’s decisions on the issue. And on the question presented here, the Supreme Court has already spoken. In Baker v. Nelson, the Court dismissed an appeal
The petitioners in Baker argued that Minnesota’s marriage scheme violated due process and equal protection. Jurisdictional Statement, No. 71-1027, at 3-19 (Oct. Term 1972). The Minnesota Supreme Court unambiguously rejected the notion that same-gender marriage was a fundamental right, interpreting Loving v. Virginia as resting upon the Constitution’s prohibition of race discrimination. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). Absent irrational or invidious discrimination, a “theoretically imperfect” marriage classification does not offend equal protection or due process under the Fourteenth Amendment. Id. The import of Baker to this case is clear: neither due process nor equal protection bar states from defining marriage as between one man and one woman, or require states to extend marriage to same-gender couples.
A summary dismissal is a merits determination and a lower federal court should not come to an opposite conclusion on the issues presented. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). The district court relied upon a statement in Hicks v. Miranda that a question remains unsubstantial unless “doctrinal developments” may suggest otherwise. 422 U.S. 332, 344 (1975). On this point, Miranda held that a summary dismissal could not be disregarded. Id. at 344-45. Were there any doubt, the “doctrinal developments” exception was followed by a statement that summary decisions are binding on lower courts until the Court notifies otherwise. Id.
Plaintiffs argue that Baker did not address the precise issues here because “[t]he judgment affirmed in Baker addressed whether same-sex couples were denied equal protection and due process by Minnesota’s marriage statute—a measure that did not indicate on its face whether same-sex couples could marry and that had not been enacted for the express purpose of excluding same-sex couples from marriage.” Aplee. Br. 23.
Regardless, subsequent doctrinal developments have not undermined the Court’s traditional deference to the States in the field of domestic relations. To be sure, the district court concluded otherwise based upon the following Supreme Court developments: (1) gender becoming a quasi-suspect class, Craig v. Boren, 429 U.S. 190 (1976); Frontiero v. Richardson, 411 U.S. 677 (1973), (2) invalidation of a state law repealing and barring sexual-orientation protection, Romer v. Evans, 517 U.S. 620 (1996), (3) invalidation of a statute that proscribed same-gender sexual relations insofar as private conduct among consenting adults, Lawrence v. Texas, 539 U.S. 558 (2003), (4) declaring the Defense of Marriage Act’s (“DOMA”) definition of “marriage” and “spouse” to exclude same-gender marriages as violative of Fifth Amendment due process and equal protection principles, United States v. Windsor, 133 S. Ct. 2675 (2013). Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1194-95 (D. Utah 2013). This court relies on Lawrence and Windsor as justification for not deferring to Baker. As discussed below, none of these developments can override our obligation to follow (rather than lead) on the
Because I have not persuaded the panel, I proceed to analyze the remaining issues.
B. Equal Protection–Gender Discrimination
Plaintiffs argue that defining marriage to exclude same-gender unions is based upon gender stereotyping where “the law presumed women to be legally, socially, and financially dependent upon men.” Aplee. Br. at 55-63. But this case involves no disparate treatment based upon gender that might invite intermediate scrutiny. See Craig, 429 U.S. at 197 (such scrutiny requires that the law be substantially related to furthering important governmental interests). Utah’s constitutional and statutory provisions,
Disparate treatment of men and women as a class is an essential element of an
C. Equal Protection–Sexual Orientation
Plaintiffs argue that defining marriage to exclude same-gender unions is a form of sexual orientation discrimination triggering heightened scrutiny. Aplee. Br. at 48-55. The Supreme Court has yet to decide the level of scrutiny attendant to classifications based upon sexual orientation, see Windsor, 133 S. Ct. at 2683-84, but this court has rejected heightened scrutiny, see Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008); Walmer v. U.S. Dep’t of Defense, 52 F.3d 851, 854 (10th Cir. 1995); Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992). Although Plaintiffs argue that our precedent does not justify such a position, one panel of this court may not overrule another absent superseding en banc review or a Supreme Court decision invalidating our precedent. Rezaq v. Nalley, 677 F.3d 1001, 1012 n.5 (10th Cir. 2012). Neither has
D. Due Process–Fundamental Right
The Plaintiffs contend that they are not relying upon a fundamental right to same-gender marriage, but instead a fundamental right to marriage simpliciter. Aplee. Br. at 16, 33-39. They contend that freedom to marry is self-defining and without reference to those who assert it or have been excluded from it. Id. at 34. Of course, the difficulty with this is that marriage does not exist in a vacuum; it is a public institution, and states have the right to regulate it. That right necessarily encompasses the right to limit marriage and decline to recognize marriages which would be prohibited; were the rule as the Plaintiffs contend, that marriage is a freestanding right, Utah’s prohibition on bigamy would be an invalid restriction, see
As noted, the Court has recognized a fundamental right to marriage protected by substantive due process. Turner, 482 U.S. at 94; Zablocki, 434 U.S. at 384-86; Loving, 388 U.S. at 12. As such, restrictions on the right are subject to strict scrutiny: they must be narrowly tailored to further compelling state interests. Zablocki, 434 U.S. at 388; Loving, 388 U.S. at 11-12. But it is a stretch to cast those cases in support of a fundamental right to same-gender marriage.
Here’s why. First, same-gender marriage is a very recent phenomenon; for centuries “marriage” has been universally understood to require two persons of opposite gender. Windsor, 133 S. Ct. at 2689. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term “marriage” as used in those cases had any meaning other than what was commonly understood for centuries. Courts do not decide what is not before them. That the Court did not refer to a “right to interracial marriage,” or a “right to inmate marriage” cannot obscure what was decided; the Supreme Court announced a right with objective meaning and contours. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Thus, contrary to Plaintiffs’ contention, Aplee. Br. at 34 n.5, it is entirely appropriate for the State to characterize the right sought as one of “same-gender marriage” and focus attention on its recent development. Perhaps someday same-gender marriage will become part of this country’s history and tradition, but that is not a choice this court should make.
Much of this court’s opinion is dedicated to finding otherwise by separating
Nothing in the Court’s trilogy of cases, Romer, Lawrence, or Windsor, points to a different result. Though the cases may afford constitutional protection for certain “moral and sexual choices” of same gender couples, Windsor, 133 S. Ct. at 2694, they simply have not created a fundamental right to same-gender marriage, let alone heightened scrutiny for any provision which may be implicated. Romer is an equal protection case invalidating a Colorado constitutional provision which effected a “[s]weeping and comprehensive change” in the law by permanently withdrawing and barring anti-discrimination protections against this particular group. 517 U.S. at 627; see Price-Cornelison, 524 F.3d at 1113 n.9 (noting that Romer used a rational basis test). Lawrence also is an equal protection case that invalidated a Texas statute proscribing only same-gender sexual contact, no matter whether private and consensual, because the provision furthered no legitimate state interest. 539 U.S. at 578; id. at 581-83 (O’Connor, J.,
Plaintiffs suggest that Lawrence should frame the inquiry as a right to marry rather than a right to same-gender marriage. To be sure, the Court recognized that criminalizing private, consensual conduct for one group interfered with personal autonomy, but the Court expressly disclaimed entering the same-gender union fray. See Lawrence, 539 U.S. at 578; id. at 585 (O’Connor, J., concurring) (noting that “preserving the traditional institution of marriage” would be a legitimate state interest beyond moral disapproval). Moreover, as discussed above, numerous restrictions are already imposed on marriage. It cannot be evaluated devoid of context.
While Windsor is the only Supreme Court case concerning same-gender marriage, it simply did not decide the issue of state prohibitions on same-gender marriages; instead, it concentrated on same-gender marriages already authorized by state law. Windsor, 133 S. Ct. at 2696. It certainly did not require every state to extend marriage to same-gender couples, regardless of the contrary views of the electorate and their representatives. After Windsor, a state remains free (consistent with federal law and comity) to not recognize such marriages.
Windsor did not create a fundamental right to same-gender marriage. To the contrary, Windsor recognized the authority of the States to redefine marriage and stressed the need for popular consensus in making such change. Id. at 2692. Consistent with federalism, state policies concerning domestic relations and marriage will vary. Id. at 2691. Traditionally, the federal government has deferred to those policies, including the definition of marriage. Id. at 2691, 2693. Courts should follow suit.
Plaintiffs argue that Windsor dictates the outcome here because we need only look to the purpose and effect of the Utah constitutional amendment defining marriage and not recognizing any other union. But this case does not involve interference with traditional state prerogatives so it is questionable whether such a directive from Windsor applies. If it does, Plaintiffs draw only one conclusion: the provision is designed to impose inequality on same-gender couples and their children. Aplt. Br. at 39-48. But DOMA is an outlier. It was unique in not deferring to the States’ power to define marriage and instead interfering with the legal effect (or “equal dignity”) of those marriages. In this case, Utah seeks to preserve the status quo and the right of the people to decide this issue.
Not surprisingly, the district court resisted a finding of animus. Kitchen, 961 F. Supp. 2d at 1209. That was undoubtedly correct. The Plaintiffs’ one-sided formulation
E. Equal Protection–Rational Basis
Plaintiffs contend and the district court so found that the provisions cannot be sustained under rational basis review. Kitchen, 961 F. Supp. 2d at 1210-15. The State offered several rationales including (1) encouraging responsible procreation given the unique ability of opposite-gender couples to conceive, (2) effective parenting to benefit the offspring, and (3) proceeding with caution insofar as altering and expanding the definition of marriage. The district court rejected these rationales based on a lack of evidence and/or a lack of a rational connection between excluding same-gender couples
Equal protection “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Given the provisions in this case, we should look at the definition of marriage and the exclusion of same-gender couples and inquire whether “the classification . . . is rationally related to a legitimate state interest.” Id. at 440.
To the extent the district court thought that the State had any obligation to produce
Whether a reason actually motivated the electorate or the legislature is irrelevant; neither is required to state its reason for a choice. See Fritz, 449 U.S. at 179. Legislative choices involve line-drawing, and the fact that such line-drawing may result in some inequity is not determinative. See Heller v. Doe, 509 U.S. 312, 321 (1993). Accordingly, an enactment may be over-inclusive and/or under-inclusive yet still have a rational basis. The fact that the classification could be improved or is ill-advised is not enough to invalidate it; the political process is responsible for remedying perceived problems. City of Cleburne, 473 U.S. at 440 (“The Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.”).
Judged against these standards, Utah should prevail on a rational basis analysis.
Nor is the State precluded from considering procreation in regulating marriage. Merely because the Court has discussed marriage as a fundamental right apart from procreation or other rights including contraception, child rearing, and education does not
It is also undeniable that the State has an important interest in ensuring the well-being of resulting offspring, be they planned or unplanned. To that end, the State can offer marriage and its benefits to encourage unmarried parents to marry and married parents to remain so. Thus, the State could seek to limit the marriage benefit to opposite-
Of course, other states may disagree. And it is always possible to argue that there are exceptions. But on this issue we should defer. To be sure, the constant refrain in these cases has been that the States’ justifications are not advanced by excluding same-gender couples from marriage. But that is a matter of opinion; any “improvement” on the classification should be left to the state political process.
At the very least, same-gender marriage is a new social phenomenon with unknown outcomes and the State could choose to exercise caution. Utah‘s justifications for not extending marriage to include same-gender couples are not irrefutable. But they don‘t need to be; they need only be based upon “any reasonably conceivable state of facts.” Beach Commc‘ns, 508 U.S. at 313. In conducting this analysis, we must defer to the predictive judgments of the electorate and the legislature and those judgments need not be based upon complete, empirical evidence. See Turner Broadcasting System, Inc. v. Fed. Commc‘n Comm‘n, 512 U.S. 622, 665-66 (1994).
No matter how many times we are reminded that (1) procreative ability and
That the Constitution does not compel the State to recognize same-gender marriages within its own borders demonstrates a fortiori that it need not recognize those solemnized without. Unlike the federal government in Windsor, a state has the “historic and essential authority to define the marital relation” as applied to its residents and citizens. Windsor, 133 S. Ct. at 2691-92. To that end, Utah has the authority to decline to recognize valid marriages from other states that are inconsistent with its public policy choices. See In re Vetas’ Estate, 170 P.2d 183, 187 (Utah 1946) (declining to recognize
The State has satisfied its burden on rational basis review. One only need consider the reams of sociological evidence urged by the parties and the scores of amicus briefs on either side to know that the State‘s position is (at the very least) arguable. It most certainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legislature could conceivably believe. Though the Plaintiffs would weigh the interests of the State differently and discount the procreation, child-rearing, and caution rationales, that prerogative belongs to the electorate and their representatives. Or as the Court recently stated:
The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious
First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy.
Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014)
27 SCHOLARS OF FEDERALISM AND JUDICIAL RESTRAINT
Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer
46 EMPLOYERS AND ORGANIZATIONS REPRESENTING EMPLOYERS
Attorneys on the Brief: Meghan Bailey, Susan Baker Manning, John V. McDermott, Lauren Schmidt, Margaret Sheer, Michael Louis Whitlock
93 INDIVIDUAL FAITH LEADERS IN OKLAHOMA AND UTAH
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
9TO5, NATIONAL ASSOCIATION OF WORKING WOMEN
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ACLU OF OKLAHOMA
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ACLU OF UTAH
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
AFFIRMATION
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
ALL SOULS UNITARIAN CHURCH OF TULSA
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
ALLEN, DOUGLAS W.
Attorneys on the Brief: David C. Walker
ALLIANCE FOR A BETTER UTAH
Attorneys on the Brief: Courtney Bowman, Sarah Kroll-Rosenbaum, Shawn Scott Ledingham
ALVARÉ, HELEN M.
Attorneys on the Brief: Richard D. White
AMBROSE, DOUGLAS
Attorneys on the Brief: Frank D. Mylar
AMERICAN CIVIL LIBERTIES UNION
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
AMERICAN LEADERSHIP FUND
Attorneys on the Brief: Frank D. Mylar
AMERICAN MILITARY PARTNER ASSOCIATION
Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man
AMERICAN PSYCHOLOGICAL ASSOCIATION
Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith
AMERICAN SOCIOLOGICAL ASSOCIATION
Attorneys on the Brief: Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andrew P. Meiser, Andra Troy
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
ANDERSON, JANNA
Attorneys on the Brief: Dani Hartvigsen
ANDERSON, RYAN
Attorneys on the Brief: Michael Francis Smith
ANTI-DEFAMATION LEAGUE
Attorneys on the Brief: Michelle Deutchman, Steven M. Freeman, Seth M. Marnin, Rocky Chiu-feng Tsai
API EQUALITY-LA
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE, ASIAN AMERICANS ADVANCING JUSTICE-ASIAN LAW CAUCUS
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE-CHICAGO
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
AUSTIN LGBT BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BAR ASSOCIATION OF SAN FRANCISCO
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BARDAGLIO, PETER
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
BASCH, NORMA
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BECKET FUND FOR RELIGIOUS LIBERTY
Attorneys on the Brief: Eric C. Rassbach, Asma Uddin
BELTRAN, LYNN
Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
BELZ, HERMAN
Attorneys on the Brief: Frank D. Mylar
BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
BENNE, ROBERT D.
Attorneys on the Brief: Frank D. Mylar
BOYLE, DAVID
Attorneys on the Brief: David Boyle
CALIFORNIA
Attorneys on the Brief: Kamala D. Harris, Peter Sacks
CARBADO, DEVON
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
CARLSON, ALLAN C.
Attorneys on the Brief: Frank D. Mylar
CARROLL, JASON S.
Attorneys on the Brief: Lynn Dennis Wardle
CATHEDRAL OF HOPE OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CATO INSTITUTE
Attorneys on the Brief: Ilya Shapiro, Elizabeth B. Wydra
CENTER FOR CONSTITUTIONAL JURISPRUDENCE
Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer
CENTRAL CONFERENCE OF AMERICAN RABBIS
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
CHILDREN‘S CENTER OF SALT LAKE CITY
Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
CHRISTENSEN, LAVAR
Attorneys on the Brief: Robert Theron Smith
CHURCH OF THE OPEN ARMS OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CHURCH OF THE RESTORATION OF TULSA
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CIMARRON ALLIANCE
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
COLAGE
Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
COLORADO GAY LESBIAN BISEXUAL TRANSGENDER (GLBT) BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
COLORADO WOMEN‘S BAR ASSOCIATION
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
CONCERNED WOMEN FOR AMERICA
Attorneys on the Brief: Steven W. Fitschen
CONGREGATION KOLAMI OF SALT LAKE CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CONKLE, DANIEL O.
Attorneys on the Brief: Brett Gilbert Scharffs
CONNECTICUT
Attorneys on the Brief: George Jepsen, Peter Sacks
CONSTITUTIONAL ACCOUNTABILITY CENTER
Attorneys on the Brief: Ilya Shapiro, Elizabeth B. Wydra
CONSTITUTIONAL LAW SCHOLARS
Attorneys on the Brief: Lori Ann Alvino McGill, Geoffrey R. Stone
COONTZ, STEPHANIE
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
COTT, NANCY
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
COVENANT NETWORK OF PRESBYTERIANS
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
COX, DUANE MORLEY
Attorneys on the Brief: Duane Morley Cox
CURTIS, G.M.
Attorneys on the Brief: Frank D. Mylar
DELAWARE
Attorneys on the Brief: Joseph R. Biden III, Peter Sacks
DISTRICT OF COLUMBIA
Attorneys on the Brief: Irvin B. Nathan, Peter Sacks
DITZ, TOBY L.
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
DOLOVICH, SHARON
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
DUBLER, ARIELA R.
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND
Attorneys on the Brief: Lawrence John Joseph
EDWARDS, LAURA F.
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
EGGEBEEN, DAVID J.
Attorneys on the Brief: David C. Walker
EIGHTY ONE UTAH STATE LEGISLATORS
Attorneys on the Brief: Robert Theron Smith
EMERSON, MICHAEL O.
Attorneys on the Brief: Frank D. Mylar
EPISCOPAL DIOCESE OF UTAH
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
EPWORTH UNITED METHODIST CHURCH OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
EQUAL RIGHTS ADVOCATES
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
EQUALITY UTAH
Attorneys on the Brief: Troy L. Booher, Clifford J. Rosky, Noella A. Sudbury, Michael D. Zimmerman
FAMILY EQUALITY COUNCIL
Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
FAMILY LAW AND CONFLICT OF LAWS PROFESSORS
Attorneys on the Brief: Marjory A. Gentry, Joanna L. Grossman, John S. Throckmorton
FAMILY LAW PROFESSORS
Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein
FAMILY RESEARCH COUNCIL
Attorneys on the Brief: Paul Benjamin Linton
FELLOWSHIP CONGREGATIONAL UNITED CHURCH OF CHRIST OF TULSA
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
FIRST UNITARIAN CHURCH OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
FLUKE, CHARLES
Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
FREEDOM TO MARRY
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
FRIENDS FOR LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUEER CONCERNS
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
GAY & LESBIAN ADVOCATES & DEFENDERS
Attorneys on the Brief: Felicia H. Ellsworth, Mark C. Fleming, Leah M. Litman, Dina Bernick Mishra, Kenneth Lee Salazar, Alan E. Schoenfeld, Paul Reinherz Wolfson
GEORGE, ROBERT P.
Attorneys on the Brief: Michael Francis Smith
GEORGE, TIMOTHY
Attorneys on the Brief: Frank D. Mylar
GIRGIS, SHERIF
Attorneys on the Brief: Michael Francis Smith
GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY
Attorneys on the Brief: Nicholas M. O‘Donnell
GROSSBERG, MICHAEL
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HADASSAH, THE WOMEN‘S ZIONIST ORGANIZATION OF AMERICA, INC.
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
HARTOG, HENDRIK
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HAWKINS, ALAN J.
Attorneys on the Brief: David C. Walker
HAYASHI, SCOTT
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
HERMAN, ELLEN
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HINDU AMERICAN FOUNDATION
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
HISPANIC NATIONAL BAR ASSOCIATION
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
HISTORIANS OF ANTIGAY DISCRIMINATION
Attorneys on the Brief: Katie D. Fairchild, Madeline H. Gitomer, Jessica Black Livingston, Katherine A. Nelson, Aaron M. Paul, Erica Knievel Songer, Catherine E. Stetson
HODES, MARTHA
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC
Attorneys on the Brief: David Scott Flugman
HUMAN RIGHTS CAMPAIGN
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
HUNTER, NAN D.
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
ILLINOIS
Attorneys on the Brief: Lisa Madigan, Peter Sacks
INSTITUTE FOR MARRIAGE AND PUBLIC POLICY
Attorneys on the Brief: Jennifer L. Bursch
INTERFAITH ALLIANCE FOUNDATION
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
INTERFAITH ALLIANCE OF COLORADO
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
IOWA
Attorneys on the Brief: Tom Miller, Peter Sacks
JAMES, HAROLD
Attorneys on the Brief: Frank D. Mylar
JAPANESE AMERICAN CITIZENS LEAGUE
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
JEWISH SOCIAL POLICY ACTION NETWORK
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
JOHNSON, BYRON R.
Attorneys on the Brief: David C. Walker
JUSTICE, STEVEN
Attorneys on the Brief: Frank D. Mylar
KERBER, LINDA K.
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
KESHET
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
KESSLER-HARRIS, ALICE
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
KOONS, ROBERT C.
Attorneys on the Brief: Frank D. Mylar
KURTZ, STANLEY
Attorneys on the Brief: Frank D. Mylar
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Attorneys on the Brief: Jennifer C. Pizer, Susan Sommer, Camilla Taylor, Kenneth D. Upton
LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
LEGAL MOMENTUM
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LEGAL VOICE
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LGBT & ALLIED LAWYERS OF UTAH BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
LIBERTY COUNSEL, INC.
Attorneys on the Brief: Anita Staver, Mathew D. Staver
LITTLETON, CHRISTINE A.
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LOPEZ, ROBERT OSCAR
Attorneys on the Brief: Dani Hartvigsen
LOVE HONOR CHERISH
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
LUTHERAN CHURCH-MISSOURI SYNOD
Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
MAINE
Attorneys on the Brief: Janet T. Mills, Peter Sacks
MAINWARING, DOUG
Attorneys on the Brief: Dani Hartvigsen
MARRIAGE EQUALITY USA
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
MARYLAND
Attorneys on the Brief: Douglas F. Gansler, Peter Sacks
MASSACHUSETTS
Attorneys on the Brief: Martha Coakley, Michelle L. Leung, Jonathan B. Miller, Genevieve C. Nadeau, Peter Sacks
MAY, ELAINE TYLER
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MAYERI, SERENA
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MAYFLOWER CONGREGATIONAL UNITED CHURCH OF CHRIST OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
MCDERMOTT, GERALD R.
Attorneys on the Brief: Frank D. Mylar
MCHUGH, PAUL
Attorneys on the Brief: Gerard Vincent Bradley, Kevin Trent Snider
MCIFF, KAY
Attorneys on the Brief: Robert Theron Smith
METHODIST FEDERATION FOR SOCIAL ACTION
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
METROPOLITAN COMMUNITY CHURCHES
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
MINNESOTA LAVENDER BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
MINTZ, STEVE
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MOORE, RUSSELL
Attorneys on the Brief: Frank D. Mylar
MORE LIGHT PRESBYTERIANS
Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
MORMONS FOR EQUALITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
MT. TABOR LUTHERAN CHURCH OF SALT LAKE CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
NAACP SALT LAKE BRANCH & NAACP TRI STATE CONFERENCE OF IDAHO, NEVADA AND UTAH
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
NATIONAL ACTION NETWORK
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL ASIAN PACIFIC AMERICA BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY
Attorneys on the Brief: Stephen M. Crampton, Mary Elizabeth McAlister
NATIONAL ASSOCIATION OF EVANGELICALS
Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
NATIONAL ASSOCIATION OF WOMEN LAWYERS
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
NATIONAL COUNCIL OF JEWISH WOMEN
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
NATIONAL COUNCIL OF LA RAZA
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL GAY AND LESBIAN TASK FORCE
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL ORGANIZATION FOR WOMEN FOUNDATION
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
NATIONAL WOMEN‘S LAW CENTER
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
NEHIRIM
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
NELSON, MERRILL
Attorneys on the Brief: Robert Theron Smith
NERO, NICHOLAS
Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
NEW HAMPSHIRE
Attorneys on the Brief: Joseph A. Foster, Peter Sacks
NEW MEXICO
Attorneys on the Brief: Gary K. King, Peter Sacks
NEW MEXICO LESBIAN AND GAY LAWYERS ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
NEW YORK
Attorneys on the Brief: Peter Sacks, Eric T. Schneiderman
NEWMAN, ALANA
Attorneys on the Brief: Dani Hartvigsen
O‘GRADY, CLAUDIA
Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW OUTLAWS
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
OKLAHOMANS FOR EQUALITY
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
OREGON
Attorneys on the Brief: Ellen F. Rosenblum, Peter Sacks
OUTSERVE-SLDN
Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man
PAKALUK, CATHERINE R.
Attorneys on the Brief: David C. Walker
PAQUETTE, ROBERT
Attorneys on the Brief: Frank D. Mylar
PARENTS AND FRIENDS OF EX-GAYS & GAYS
Attorneys on the Brief: Arthur Andrew Schulcz, Jr.
PARENTS, FAMILIES AND FRIENDS OF LESBIANS AND GAYS, INC.
Attorneys on the Brief: Andrew John Davis, Jiyun Cameron Lee
PEOPLE FOR THE AMERICAN WAY FOUNDATION
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
PERRY, MICHAEL J.
Attorneys on the Brief: Brett Gilbert Scharffs
PLECK, ELIZABETH
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
POLIKOFF, NANCY
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
PRESBYTERIAN WELCOME
Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
PRICE, JOSEPH
Attorneys on the Brief: David C. Walker
PUBLIC ADVOCATES, INC.
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
QLAW - THE GLBT BAR ASSOCIATION OF WASHINGTON
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
RAHE, PAUL A.
Attorneys on the Brief: Frank D. Mylar
RECONCILING MINISTRIES NETWORK
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
RECONCILINGWORKS: LUTHERANS FOR FULL PARTICIPATION
Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
RECONSTRUCTIONIST RABBINICAL ASSOCIATION
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
RECONSTRUCTIONIST RABBINICAL COLLEGE
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
REGNERUS, MARK D.
Attorneys on the Brief: David C. Walker
RELIGIOUS INSTITUTE, INC.
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
REYNOLDS, MICHAEL A.
Attorneys on the Brief: Frank D. Mylar
RHODE ISLAND
Attorneys on the Brief: Peter F. Kilmartin, Peter Sacks
ROVIG, STANFORD
Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
SCHARFFS, BRETT GILBERT
Attorneys on the Brief: Brett Gilbert Scharffs
SCHULTZ, VICKI
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SEARS, BRAD
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SHAMMAS, CAROLE
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
SHANLEY, MARY
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
SHIFFRIN, SEANA
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SIKH AMERICAN LEGAL DEFENSE AND EDUCATION FUND
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
SNOW, LOWRY
Attorneys on the Brief: Robert Theron Smith
SOCIETY FOR HUMANISTIC JUDAISM
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
SOUTH ASIAN AMERICANS LEADING TOGETHER
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
SOUTHWEST WOMEN‘S LAW CENTER
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
ST. STEPHEN‘S UNITED METHODIST CHURCH OF NORMAN, OKLAHOMA
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
STANLEY, AMY DRU
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
STATE OF ALABAMA
Attorneys on the Brief: Thomas Molnar Fisher, Luther Strange
STATE OF ALASKA
Attorneys on the Brief: Thomas Molnar Fisher, Michael C. Geraghty
STATE OF ARIZONA
Attorneys on the Brief: Thomas Molnar Fisher, Thomas C. Horne
STATE OF COLORADO
Attorneys on the Brief: Thomas Molnar Fisher, John Suthers
STATE OF IDAHO
Attorneys on the Brief: Thomas Molnar Fisher, Lawrence G. Wasden
STATE OF INDIANA
Attorneys on the Brief: Thomas Molnar Fisher, Gregory F. Zoeller
STATE OF KANSAS
Attorneys on the Brief: Jeffrey A. Chanay, Bryan Charles Clark
STATE OF MICHIGAN
Attorneys on the Brief: Aaron Lindstrom, Bernard Eric Restuccia, Bill Schuette
STATE OF MONTANA
Attorneys on the Brief: Thomas Molnar Fisher, Timothy C. Fox
STATE OF NEBRASKA
Attorneys on the Brief: Jon Bruning, Thomas Molnar Fisher
STATE OF OKLAHOMA
Attorneys on the Brief: Thomas Molnar Fisher, E. Scott Pruitt
STATE OF SOUTH CAROLINA
Attorneys on the Brief: Thomas Molnar Fisher, Alan Wilson
STONEWALL BAR ASSOCIATION OF GEORGIA, INC.
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STONEWALL BAR ASSOCIATION OF MICHIGAN
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STONEWALL LAW ASSOCIATION OF GREATER HOUSTON
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STRAUB, D‘ARCY WINSTON
Attorneys on the Brief: D‘Arcy Winston Straub
THE CENTER FOR URBAN RENEWAL AND EDUCATION
Attorneys on the Brief: Stephen Kent Ehat
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
THE COALITION OF AFRICAN-AMERICAN PASTORS USA
Attorneys on the Brief: Stephen Kent Ehat
THE EQUALITY NETWORK
Attorneys on the Brief: , Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION
Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
THE FREDERICK DOUGLASS FOUNDATION, INC.
Attorneys on the Brief: Stephen Kent Ehat
THE OUTLAWS
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
THE SUTHERLAND INSTITUTE
Attorneys on the Brief: William C. Duncan
THE UTAH PSYCHOLOGICAL ASSOCIATION
Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith
THE WOMEN‘S ZIONIST ORGANIZATION OF AMERICA
Attorneys on the Brief: Samuel P. Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
TRINITY CHRISTIAN CHURCH OF EDMOND, OKLAHOMA
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
T‘RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
UNION FOR REFORM JUDAISM
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITARIAN UNIVERSALIST ASSOCIATION
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED CHURCH OF CHRIST
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED CHURCH OF NORMAN, OKLAHOMA
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS
Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
UNIVERSITY OF OKLAHOMA COLLEGE OF LAW LEGAL GROUP FOR BUILDING TOLERANCE AND ACCEPTANCE
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
UPHAM, DAVID R.
Attorneys on the Brief: David Robert Upham
UTAH COUNTIES
Attorneys on the Brief: Jared W. Eldredge, Lynn Dennis Wardle
UTAH PRIDE CENTER
Attorneys on the Brief: Troy L. Booher, Clifford J. Rosky, Noella A. Sudbury, Michael D. Zimmerman
VERMONT
Attorneys on the Brief: Peter Sacks, William H. Sorrell
VOICES FOR UTAH CHILDREN
Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
WASHINGTON
Attorneys on the Brief: Robert W. Ferguson, Peter Sacks
WELKE, BARBARA
Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
WESTERN REPUBLICANS
Attorneys on the Brief: Stacy A. Carpenter, Bennett L. Cohen, Jon R. Dedon, Sean Robert Gallagher
WILKEN, ROBERT LOUIS
Attorneys on the Brief: Frank D. Mylar
WINKLER, ADAM
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
WOLFE, CHRISTOPHER
Attorneys on the Brief: Frank D. Mylar
WOMEN OF REFORM JUDAISM
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
WOMEN‘S LAW PROJECT
Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
WOMEN‘S LEAGUE FOR CONSERVATIVE JUDAISM
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
WOOD, PETER W.
Attorneys on the Brief: Frank D. Mylar
WORTHAM, DOUGLAS
Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Roberta A. Kaplan, Joshua Kaye, Alan B. Morrison
Notes
Be that as it may, Plaintiffs correctly point out that the fourth argument was not raised in the district court. Aplee. Br. at 81 n.26. The State responds that the district court “discussed and rejected this argument in its decision,” but the court merely made an offhand comment that religious freedom would be furthered by allowing churches to perform same-gender weddings (if they so choose). Aplee. Reply Br. at 41 n.19 (citing Kitchen, 961 F. Supp. 2d at 1214). The State also argues that rational basis review is not confined to “‘explanations of the statute’s rationality that may be offered by the litigants or other courts.’” Id. (quoting Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988)). That may be, but the State as a litigant is offering an explanation that was not preserved. Finally, the State argues that appellate courts may address a waived issue in the public interest or to avoid manifest injustice. Id. We normally conduct appellate review based upon arguments raised in the district court. For those that were not, absent a full plain error argument in the opening brief, we consider such arguments waived. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal[ ]surely marks the end of the road for an argument for reversal not first presented to the district court.”).