*2 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. Utah Code § 30-1-4.1. These laws were *3 also intended to assure non-recognition irrespective of how such a domestic union might be denominated, or where it may have been performed. Id. Plaintiffs challenged the constitutionality of these laws and the district court agreed with their position. Under 28 U.S.C. § 1291, we entertain the appeal of that ruling.
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,
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,
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.
I
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 *5 policies. Partridge states that she and Wood face “risks and stigmas that none of [her] heterosexual married friends and family ever have to face.” She points to the example of her parents, who were married for fifty-five years, observing that her father never had to worry about his ability to be present or make medical decisions when his wife became terminally ill. Wood hopes that marriage to Partridge will allow “both society and our families [to] recognize the life commitment and love we feel for each other.”
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 *6 relating to same-sex marriage. Utah Code § 30-1-2(5) includes among the marriages that are “prohibited and declared void” those “between persons of the same sex.” Id. In 2004, the Utah Legislature passed § 30-1-4.1, which provides:
(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.
Id. The Legislature also referred a proposed constitutional amendment, known as Amendment 3, to Utah’s voters. It states:
(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. Utah Const. art. I, § 29; see Laws 2004, H.J.R. 25 § 1.
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 *7 morality, the justified preference for heterosexual marriage with its capacity to perpetuate the human race and the importance of raising children in that preferred relationship.” Opponents of the amendment argued that it “singles out one specific group—people who are our relatives, neighbors, and co-workers—to deny them hundreds of rights and protections that other Utahns enjoy.” Amendment 3 passed with approximately 66% of the vote and became § 29 of Article I of the Utah Constitution. This opinion will refer to both of the foregoing statutes, along with the constitutional amendment, collectively as “Amendment 3.”
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 42 U.S.C. § 1983, seeking both a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement.
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 *8 unconstitutional and permanently enjoined enforcement of the challenged provisions. Id. at 1216.
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,
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,
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,
The Salt Lake County Clerk, however, has not appealed from the district court’s
order. We must therefore consider whether the Governor and Attorney General are
proper appellants absent the County Clerk. See Hollingsworth v. Perry,
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,
In Utah, marriage licenses are issued not by court clerks but by county clerks. See Utah Code §§ 17-20-4 (listing duties of county clerks) & 17-53-101 (providing for election of county clerks). The Governor and Attorney General have explicitly taken the *11 position in this litigation that they “have ample authority to ensure that” the Salt Lake County Clerk “return[s] to her former practice of limiting marriage licenses to man- woman couples in compliance with Utah law.” This assertion is supported by the Utah Code. The Governor is statutorily charged with “supervis[ing] the official conduct of all executive and ministerial officers” [1] and “see[ing] that all offices are filled and the duties thereof performed.” § 67-1-1(1) & (2). In addition, he “may require the attorney general to aid any county attorney or district attorney in the discharge of his duties.” § 67-1-1(7). Utah law allows an action for the removal of a county officer for “malfeasance in office” to be brought by a “county attorney, or district attorney for the county in which the officer was elected or appointed, or by the attorney general.” §§ 77-6-1 & -2.
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.” § 67-5-1(6) & (8). A clerk who “knowingly issues a license for any prohibited marriage is guilty of a class A misdemeanor.” § 30-1-16. Such charges would be filed by a county or district attorney under the supervision of the Attorney General. See § 17-18a-201 (district and county attorneys act as public prosecutors). And the Governor could order the Attorney General to assist in such prosecution. § 67-1-1(7).
The Governor and Attorney General have also demonstrated a “willingness to
exercise” their duty to ensure clerks and other state officials enforce Amendment 3.
Chamber of Commerce,
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,” Utah Code § 59-1-
210(5), the Attorney General in his constitutional role as “the legal adviser of the State
officers,” Utah Const. art. VII, § 16, is required by statute to offer his “opinion in writing
. . . to any state officer, board, or commission,” Utah Code § 67-5-1(7). The Attorney
General considers his opinions to the Utah State Tax Commission, even informal ones, to
be “authoritative for the purposes” of the Commission “with respect to the specific
questions presented.” Applicability of Sales & Use Tax to Transfer of Motor Vehicle
*13
from a Partner to a P’ship, Op. Utah Att’y Gen. 86-13 (1987), 1987 Utah AG LEXIS 15,
at *22. The Attorney General is empowered to direct the Tax Commission to recognize
Archer and Call’s Iowa wedding, and the Commission would be legally obligated to
follow that instruction and accept a joint tax return. Accordingly, Archer and Call had
standing to sue the Attorney General for the injuries caused by Amendment 3’s non-
recognition provisions. See generally Coll v. First Am. Title Ins. Co.,
(10th Cir. 2011) (“Plaintiffs must have standing to seek each form of relief in each claim.” (quotation omitted)).
The same is true with respect to the Governor. Utah’s “executive power” is “vested in the Governor.” Utah Const. art. VII, § 5. In the exercise of that power, the Governor appoints the state’s tax commissioners and has the power to initiate proceedings to remove them from office. Utah Code § 59-1-201. Shortly after the Governor sent the above-quoted message to state agencies, the Tax Commission issued a Tax Notice stating that “[s]ame-sex couples who are eligible to file a joint federal income tax return and who elect to file jointly, may also file a joint 2013 Utah Individual Income Tax return.” Utah State Tax Commission, Individual Income Tax Returns for Same-Sex Couples for Tax Year 2013 (Jan. 15, 2014) (available at http://tax.utah.gov/notice/2014- 01-15.pdf). The Tax Notice refers to the district court’s injunction, noting that a stay of that order had not been granted as of December 31, 2013. Id. Thus, one of the injuries explicitly cited by plaintiffs Archer and Call has been at least temporarily redressed by the district court’s decision and actions taken in response to it by the Governor after consultation with the Attorney General.
We conclude that the Governor’s and the Attorney General’s actual exercise of
supervisory power and their authority to compel compliance from county clerks and other
officials provide the requisite nexus between them and Amendment 3. Although “it does
not suffice if the injury complained of is the result of the independent action of some
third party not before the court, that does not exclude injury produced by determinative or
coercive effect upon the action of someone else.” Bennett v. Spear,
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,
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)).
*15
Both the Governor and the Attorney General are subject to the district court’s injunction
prohibiting them from enforcing Amendment 3. See Kitchen,
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,
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,
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,
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,
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 *20 Windsor would later reaffirm” require us to adhere to the Court’s summary affirmance in Baker.
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
*21
conferred by the States in the exercise of their sovereign power, was more than an
incidental effect of the federal statute. It was its essence.” Id. at 2693. DOMA
“impose[d] a disadvantage, a separate status, and so a stigma upon all who enter into
same-sex marriages . . . .” Id. The statute “undermine[d] both the public and private
significance of state-sanctioned same-sex marriages” by telling “those couples, and all
the world, that their otherwise valid marriages are unworthy of federal recognition.” Id.
at 2694. And it “humiliate[d] tens of thousands of children now being raised by same-sex
couples” by making “it even more difficult for the children to understand the integrity
and closeness of their own family and its concord with other families in their community
and in their daily lives.” Id. Because DOMA’s “differentiation demeans [same-sex]
couple[s], whose moral and sexual choices the Constitution protects, see Lawrence, 539
U.S. 558, and whose relationship[s] the State has sought to dignify,” the Court held that
the statute violated the Fifth Amendment. Windsor,
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 *22 doctrinal developments foreclose the conclusion that the issue is, as Baker determined, wholly insubstantial. [3]
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 Fed. R. Civ. P. 56(a).
“We review the decision to grant a permanent injunction for abuse of discretion.”
FTC v. Accusearch Inc.,
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,
1
There can be little doubt that the right to marry is a fundamental liberty. The marital relationship is
older than the Bill of Rights—older than our political parties, older than our
school system. Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial or social projects.
Griswold v. Connecticut,
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,
But “the right to marry is of fundamental importance for all individuals.”
Zablocki v. Redhail,
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,
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,
2
It is true that both Loving and Zablocki involved opposite-sex couples. Such
pairings, appellants remind us, may be naturally procreative—a potentially meaningful
consideration given that the Court has previously discussed marriage and procreation
together. See Skinner v. Oklahoma ex rel. Williamson,
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,
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 *28 not procreated from marrying. The Court began its analysis of the marriage restriction by dismissing the argument that “the rule does not deprive prisoners of a constitutionally protected right” even though “the decision to marry is a fundamental right” because “a different rule should obtain in a prison forum.” Id. at 94-95 (quotation and ellipses omitted). Despite the “substantial restrictions [imposed] as a result of incarceration,” the Court concluded, inmates could not be denied the fundamental right of marriage simply because of their imprisonment. Id. at 95. The right at issue was never framed as “inmate marriage”; the Court simply asked whether the fact of incarceration made it impossible for inmates to benefit from the “important attributes of marriage.” Id.; see Latta, 2014 U.S. Dist. LEXIS 66417, at *37 (“Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the
‘dead-beat dad’s right to marry.’ Even in cases with such vastly different facts, the
Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied
to the facts of the case.”); Obergefell v. Wymyslo,
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]
As the Turner opinion highlights, the importance of marriage is based in great
measure on “personal aspects” including the “expression[] of emotional support and
public commitment.” Id. at 95-96. This conclusion is consistent with the Court’s other
pronouncements on the freedom to marry, which focus on the freedom to choose one’s
spouse. See Cleveland Bd. of Educ. v. LaFleur,
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
*31
interests the State pursues by regulating marriage.” Rather than being “[m]utually
exclusive” of the procreative potential of marriage, these freedoms—to choose one’s
spouse, to decide whether to conceive or adopt a child, to publicly proclaim an enduring
commitment to remain together through thick and thin—reinforce the childrearing family
structure. Further, such freedoms support the dignity of each person, a factor emphasized
by the Windsor Court. See
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. *32 Id. at 2694.
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,
And although we acknowledge that state recognition serves to “enhance[]” the
interests at stake, Windsor,
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,
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.,
Congress cannot authorize a state to violate the Fourteenth Amendment. See Graham v.
Richardson,
Carey,
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,
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.”
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,
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,
(“[E]ven the most familiar and generally accepted of social practices and traditions often
mask an unfairness and inequality that frequently is not recognized or appreciated by
those not directly harmed by those practices or traditions.”), superseded by constitutional
amendment as stated in Strauss v. Horton,
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,
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,
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.
*40
Hardwick,
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 *41 in homosexual sex, we do not ask whether there is a right to participate in same-sex marriage. [8]
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,
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
*42
district court eloquently explained, “it is not the Constitution that has changed, but the
knowledge of what it means to be gay or lesbian.” Kitchen,
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,
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,
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.”
The challenged restrictions on the right to marry and on recognition of otherwise valid marriages, however, do not differentiate between procreative and non-procreative couples. Instead, Utah citizens may choose a spouse of the opposite sex regardless of the pairing’s procreative capacity. The elderly, those medically unable to conceive, and those who exercise their fundamental right not to have biological children are free to marry and have their out-of-state marriages recognized in Utah, apparently without breaking the “conceptual link between marriage and procreation.” The only explicit reference to reproduction in Utah’s marriage law is a provision that allows first cousins to marry if “both parties are 65 years of age or older; or . . . if both parties are 55 years of age or older, upon a finding by the district court . . . that either party is unable to reproduce.” Utah Code § 30-1-1(2). This statute thus extends marriage rights to certain couples based on a showing of inability to reproduce. [9]
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,
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 Utah
Const. art. III (“[P]olygamous or plural marriages are forever prohibited.”); see also
Potter v. Murray City,
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 *46 cannot be allowed, appellants assert, because it is better for children to be raised by biological parents. Yet adoptive parents, who have the full panoply of rights and duties of biological parents, are free to marry. See Utah Code § 78B-6-139 (adoptive parents have same rights and duties). As are opposite-sex couples who choose assisted reproduction. See §§ 78B-15-701 to 707 (providing rules for parental rights in cases of assisted reproduction); §§ 78B-15-801 to 809 (providing rules governing gestational agreements).
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,
The Supreme Court has similarly eschewed such means-ends mismatches. For
example, in Bernal v. Fainter,
[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.”
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,
A hypothetical state law restricting the institution of marriage to only those who are able and willing to procreate would plainly raise its own constitutional concerns. See id. at 453 (“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.” (emphasis omitted)). That question is not before us, and we do not address it. We merely observe that a state may not satisfy the narrow tailoring requirement by pointing to a trait shared by those on both sides of a challenged classification.
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,
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 *50 can discern no meaningful distinction with respect to appellants’ interest in fostering biological reproduction within marriages.
The Equal Protection Clause “is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
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,
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,
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,
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,
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
*54
which recognizing same-sex marriages would affect the decision of a member of an
opposite-sex couple to have a child, to marry or stay married to a partner, or to make
personal sacrifices for a child. We agree with the district court that such decisions,
among “the most intimate and personal . . . a person may make in a lifetime, choices
central to personal dignity and autonomy,” Casey,
government’s treatment of same-sex marriage. See Kitchen,
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,
The state’s child custody regime also belies adherence to a rigidly gendered view of parents’ abilities. See § 30-3-10(1)(a) (“In determining any form of custody, including a change in custody, the court shall consider the best interests of the child without preference for either the mother or father solely because of the biological sex of the parent . . . .”). As with appellants’ asserted procreation rationale, we are offered no coherent explanation for the state’s decision to impose disabilities upon only one sub- class of those sharing a claimed deficiency.
The Supreme Court has previously rejected state attempts to classify parents with
such a broad brush. In Stanley v. Illinois,
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,
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.”
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
*58
benefit society. But regardless of the signals the law sends to adults, Amendment 3, like
DOMA, conveys a harmful message to the children of same-sex couples. These
collateral consequences further suggest that the fit between the means and the end is
insufficient to survive strict scrutiny. See Latta,
4
Appellants’ fourth and final justification for Amendment 3, “accommodating religious freedom and reducing the potential for civic strife,” fails for reasons independent of the foregoing. Appellants contend that a prohibition on same-sex marriage “is essential to preserving social harmony in the State” and that allowing same- sex couples to marry “would create the potential for religion-related strife.”
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,
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 *60 qualifies as legitimate because a fundamental right is not at issue in this case. Because we have rejected appellants’ contention on this point, their fourth justification necessarily fails.
We also emphasize, as did the district court, that today’s decision relates solely to
civil marriage. See Kitchen,
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.”
*62
Pierson v. Ray,
Appellants also suggest that today’s ruling will place courts on a slippery slope
towards recognizing other forms of currently prohibited marriages. Although we have no
occasion to weigh in on the validity of laws not challenged in this case, same-sex
marriage prohibitions differ in at least one key respect from the types of marriages the
appellants identify: Unlike polygamous or incestuous marriages, the Supreme Court has
explicitly extended constitutional protection to intimate same-sex relationships, see
Lawrence,
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.
*64
Although a majority’s “traditional[] view[ of] a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice,” Lawrence, 539 U.S. at
577 (quoting Bowers,
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
*65
mandate pending the disposition of any subsequently filed petition for writ of certiorari.
[14]
See Fed. R. App. P. 41(d)(2) (allowing circuit courts to stay their mandates pending the
completion of certiorari proceedings); Massachusetts v. U.S. Dep’t of Health & Human
Servs.,
Cir. May 20, 2014) (unpublished) (relying on the Supreme Court’s Kitchen order to stay a district court injunction against a same-sex marriage ban); DeBoer v. Snyder, No. 14- 1341, Order, at 1 (6th Cir. Mar. 25, 2014) (unpublished) (same). [15]
It is so ordered. *66 No. 13-4178, Kitchen, et al. v. Herbert, et al.
KELLY , Circuit Judge, concurring in part and dissenting in part.
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,
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.; Utah Code. §§ 30-1-1, -2. And given the
recent advent of same-gender marriage, Windsor,
remarkable that a state might codify what was once implicit. For the following reasons, I respectfully dissent.
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 2
asking whether the Constitution forces a state to recognize same-gender marriage “for
want of a substantial federal question.”
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,
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.
3
The rule is clear: if a Supreme Court case is directly on point, a lower federal court
should rely on it so the Supreme Court may exercise “the prerogative of overruling its
own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
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.
4
They further argue that Utah’s non-recognition of Plaintiffs Archer and Call’s Iowa
marriage distinguishes this case from Baker . Neither reason is persuasive. The fact
remains that the Minnesota Supreme Court interpreted the state statute (at the time) to not
require same-gender marriage and decided largely the same federal constitutional
questions presented here. To the extent there is no right to same-gender marriage
emanating from the Fourteenth Amendment, a state should not be compelled to recognize
it. See Utah Code § 30-1-4(1) (declining to recognize foreign same-gender marriages).
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,
Kitchen v. Herbert,
5
issue of whether a state is required to extend marriage to same-gender couples. At best,
the developments relied upon are ambiguous and certainly do not compel the conclusion
that the Supreme Court will interpret the Fourteenth Amendment to require every state to
extend marriage to same-gender couples, regardless of contrary state law. See
Massachusetts. v. U.S. Dep’t of Health & Human Servs.,
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,
Disparate treatment of men and women as a class is an essential element of an
6
equal protection, gender discrimination claim. See United States v. Virginia, 518 U.S.
515, 519-20 (1996) (women excluded from attending VMI); Miss. Univ for Women v.
Hogan,
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,
(10th Cir. 2008); Walmer v. U.S. Dep’t of Defense,
7
occurred here.
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 Utah Const. art. III; see also Utah Code §§ 30-1-2(1) (bigamy), 30-
1-4(1) (non-recognition of such marriages solemnized elsewhere), 76-7-101
(criminalizing bigamy), 76-7-101.5 (criminalizing child bigamy). That proposition has
been soundly rejected. Reynolds,
As noted, the Court has recognized a fundamental right to marriage protected by
substantive due process. Turner ,
8
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,
Much of this court’s opinion is dedicated to finding otherwise by separating
9
marriage from procreation and expounding on how other substantive due process and privacy concepts, including personal autonomy, dignity, family relationships, reproductive rights, and the like, are the antecedents and complements of same-gender marriage. But we should be reluctant to announce a fundamental right by implication. Not only is that beyond our power, it is completely arbitrary and impractical; as in this case, a state should be allowed to adopt change if desired and implement it. As these proceedings demonstrate, the State has a much better handle on what statutory and administrative provisions are involved, and what is necessary to implement change, than we do.
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,
10
concurring); Seegmiller v. LaVerkin City,
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,
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. 28 U.S.C. § 1738C. Windsor protected valid same-gender, state law marriages based on federalism concerns, as well as Fifth Amendment due process and implied equal protection concerns. Id. at 2695. As in Lawrence, the Court employed an equal protection construct in determining that “no legitimate purpose” could justify
11
DOMA’s unequal treatment of same-gender marriages already authorized by state law. Id. at 2693, 2696. Given an unusual federal intrusion into state authority, the Court analyzed the nature, purpose, and effect of the federal law, alert for discrimination of “unusual character.” Id. at 2693.
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
12
ignores the obvious and real concern that this issue generates both on the merits and
procedurally. Nearly everyone is or has been affected from birth by the presence or
absence of marriage. In any event, this record hardly reflects “a bare . . . desire to harm a
politically unpopular group.” U.S. Dep’t of Agric. v. Moreno ,
(1973). In addition to statements for and against, the Utah legislature’s impartial analysis discussed federal constitutional implications. Aplt. App. at 34-48. The power of judicial review is strong medicine, and we should be reluctant to invalidate state constitutional or legislative enactments based upon motive. Rather, it is only an evident and “inevitable unconstitutional effect” that warrants such treatment. United States v. O’Brien, 391 U.S. 367, 385 (1968).
E. Equal Protection–Rational Basis
Plaintiffs contend and the district court so found that the provisions cannot be
sustained under rational basis review. Kitchen,
13
from marriage and the asserted justification. [2]
Equal protection “is essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc. ,
To the extent the district court thought that the State had any obligation to produce
*80
evidence, surely it was incorrect. Vance v. Bradley,
Whether a reason actually motivated the electorate or the legislature is irrelevant;
neither is required to state its reason for a choice. See Fritz,
Judged against these standards, Utah should prevail on a rational basis analysis.
15
Plaintiffs have not overcome their “heavy burden” of demonstrating that the provisions
are “arbitrary and irrational,” that no electorate or legislature could reasonably believe the
underlying legislative facts to be true. See Kadrmas v. Dickinson Pub. Schs., 487 U.S.
450, 463, 465 (1988). It is biologically undeniable that opposite-gender marriage has a
procreative potential that same-gender marriage lacks. The inherent differences between
the biological sexes are permissible legislative considerations, and indeed distinguish
gender from those classifications that warrant strict scrutiny. See United States v.
Virginia,
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
16
suggest that the link between marriage and procreation may not be considered when the
State regulates marriage. The Court’s listing of various rights from time to time is
intended to be illustrative of cases upholding a right of privacy, ensuring that certain
personal decisions might be made “without unjustified government interference.” Carey
v. Population Servs. Int’l,
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- *83 gender couples completely apart from history and tradition. Far more opposite-gender couples will produce and care for children than same-gender couples and perpetuation of the species depends upon procreation. Consistent with the greatest good for the greatest number, the State could rationally and sincerely believe that children are best raised by two parents of opposite gender (including their biological parents) and that the present arrangement provides the best incentive for that outcome. Accordingly, the State could seek to preserve the clarity of what marriage represents and not extend it.
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,
No matter how many times we are reminded that (1) procreative ability and
18
effective parenting are not prerequisites to opposite-gender marriage (exclusion of same- gender couples is under-inclusive), (2) it is doubtful that the behavior of opposite-gender couples is affected by same-gender marriage (lack of evidence), (3) the evidence is equivocal concerning the effects of gender diversity on parenting (lack of evidence) and (4) the present scheme disadvantages the children of same-gender couples (exclusion is over-inclusive), [4] the State’s classification does not need to be perfect. It can be under- inclusive and over-inclusive and need only arguably serve the justifications urged by the State. It arguably does.
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,
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,
20
(plurality opinion). We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.
21 *87 APPENDIX A 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
APPENDIX A
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
- 2 - *89 APPENDIX A 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
- 3 - *90 APPENDIX A 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
- 4 - *91 APPENDIX A 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
- 5 - *92 APPENDIX A 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
- 6 - *93 APPENDIX A 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 - 7 -
APPENDIX A 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
- 8 - *95 APPENDIX A 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
- 9 - *96 APPENDIX A 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
- 10 - *97 APPENDIX A 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
- 11 - *98 APPENDIX A 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 - 12 -
APPENDIX A 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
- 13 - *100 APPENDIX A 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 - 14 -
APPENDIX A 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
- 15 - *102 APPENDIX A 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
- 16 - *103 APPENDIX A 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
- 17 - *104 APPENDIX A 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 - 18 -
APPENDIX A 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
- 19 - *106 APPENDIX A 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
- 20 - *107 APPENDIX A 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
- 21 - *108 APPENDIX A 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
- 22 -
Notes
[*] The names of all amicus curiae parties are contained in Appendix A to this Opinion.
[1] In her answer, the Salt Lake County Clerk stated that her duties are “purely ministerial,” and that the “State of Utah controls the content of the form application to be completed by those seeking marriage licenses in the State of Utah.”
[2] Utah argues that “doctrinal developments” are insufficient to undermine a
summary disposition, asserting that the Court overruled Hicks in Rodriguez de Quijas v.
Shearson/Am. Express, Inc.,
[3] Some have suggested that Baker implicates a court’s subject matter jurisdiction.
See, e.g., Bostic,
[4] The Court distinguished its prior summary affirmance of Johnson v. Rockefeller,
[5] Hodgson was a splintered decision. Justice Stevens delivered the opinion of the Court as to certain portions of his writing, but the quotation that follows is from a section joined only by Justice Brennan.
[6] Appellants contend that § 2 of DOMA forecloses any challenge to the non-
recognition provisions of Amendment 3. However, they raise this issue only in a
footnote and in conclusory fashion. See In re C.W. Mining Co.,
[7] Utah also permits adoption by unmarried, non-cohabitating individuals if “it is in the best interests of the child to place the child with a single person.” Utah Code § 78B-6-117(4)(e). But any person who is cohabitating “in a relationship that is not a legally valid and binding marriage under the laws of this state,” § 78B-6-117(3), may not adopt a child, with no explicit exception for the child’s best interest.
[8] In Seegmiller v. Laverkin City,
[9] We do not express any view on the constitutionality of this provision. Instead, we note the inconsistency between the message sent by this statute and the message appellants claim the same-sex marriage ban conveys.
[10] It appears that the only cases in which the Supreme Court has deferred to the
predictions of legislators in evaluating the constitutionality of their enactments have
involved, at most, intermediate scrutiny. See City of Erie v. Pap’s A.M.,
[11] Because we conclude that marriage is a fundamental right, we do not consider whether Amendment 3 passes muster under rational basis review. Similarly, we do not address whether Amendment 3 might be subject to heightened scrutiny on any alternative basis.
[12] We also note, with respect to the first three rationales asserted by appellants,
that the same arguments were submitted to the Court in Windsor and rejected. The initial
brief filed by the Bipartisan Legal Advisory Group (“BLAG”) in that case argued that
DOMA was justified based on the “link between procreation and marriage.” Initial Br.
for BLAG at 44, Windsor,
[13] Although appellants suggest that religious institutions might be subject to hypothetical lawsuits under various scenarios, such lawsuits would be a function of anti- discrimination law, not legal recognition of same-sex marriage.
[14] If no petition for certiorari is filed, we would lift the stay and issue our mandate
when the deadline for filing the petition lapses. See Perry v. Brown,
[15] The Supreme Court recently denied without explanation a motion to stay a
district court’s order enjoining the enforcement of a state’s same-sex marriage ban. See
Nat’l Org. for Marriage v. Geiger, No. 13A1173,
[1] Utah Const. art. I, § 29 and Utah Code §§ 30-1-2(5) (enacted in 1977), 30-1-4.1.
[2] On appeal, the State offers a different formulation: (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 by parents willing and able to provide a high-quality home environment for
their children,” and (4) accommodating religious freedom and reducing the potential for
civic strife.” Aplt. Br. at iii. Notwithstanding its endorsement of many similar (though
more general) values in the substantive due process discussion, this court is only willing
to assume (apparently without deciding) that the first three are compelling.
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,
[3] These permissible considerations easily distinguish this case from Loving v. Virginia, upon which Plaintiffs rely. As opposed to the Court-approved interests furthered by the regulations here, the miscegenation law invalidated in Loving was based “upon distinctions drawn according to race,” and the law furthered only the patently impermissible pursuit of invidious discrimination (maintaining White Supremacy). 388 U.S. at 11-12. The Court has always considered racial classifications as different than those based upon gender, or any other consideration. 17
[4] The Court’s conclusion that children raised by same-gender couples are
somehow stigmatized, see Windsor,