15-1022 Opening Brief

8/9/2019 15-1022 Opening Brief

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SUMMARY OF THE CASE AND ORAL ARGUMENT REQUEST

The Plaintiffs-Appellees filed suit to challenge the constitutionality of

Arkansas’s constitutional amendment and statutes that define marriage as the union

of one man and one woman and decline to recognize same-sex marriages of other

jurisdictions. The district court granted partial summary judgment to the

Appellees, concluding that the Appellees enjoy a fundamental due process right to

same-sex marriage; that strict scrutiny applies to this fundamental right; and that

the Arkansas marriage laws fail to satisfy strict scrutiny. The district court also

determined that the Arkansas marriage laws discriminate on the basis of gender

and fail to satisfy intermediate scrutiny. The district court further determined that

the Arkansas marriage laws discriminate on the basis of sexual orientation; that

sexual orientation is not a suspect class; and that Arkansas’s marriage definition

satisfies the rational-basis test as a matter of law.

The State of Arkansas asks this Court to reverse the district court’s

permanent injunction and hold that Arkansas’s marriage laws are constitutional.

Oral argument should be heard because this case presents significant questions

about the institution of marriage, federal due process and equal protection rights,

and federalism. The State respectfully requests oral argument of thirty (30)

minutes per side.

Appellate Case: 15-1022 Page: 2 Date Filed: 02/17/2015 Entry ID: 4244983


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TABLE OF CONTENTS

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT ..... i

TABLE OF CONTENTS ....................................................................................... ii

TABLE OF AUTHORITIES ................................................................................ iii

JURISDICTIONAL STATEMENT .................................................................... vii

STATEMENT OF ISSUES ................................................................................. viii

STATEMENT OF THE CASE ............................................................................... 1

SUMMARY OF THE ARGUMENT ..................................................................... 6

ARGUMENT ............................................................................................................ 7

CONCLUSION ...................................................................................................... 35

CERTIFICATE OF COMPLIANCE .................................................................. 38

CERTIFICATE OF SERVICE ............................................................................ 39

ADDENDUM .................................................................................................. Add. 1

Opinion and Order, November 25, 2014 .......................................................... Add. 1

Judgment, November 25, 2014 ....................................................................... Add. 46



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Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ........................................ 28 [FN 3]

Hicks v. Miranda, 422 U.S. 332 (1975) ............................................................. 17, 18

In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) .............................. 28 [FN 3]

In re Marriage Cases, 183 P.3d 384, 440 (Cal. 2008), superseded

by constitutional amendment as stated in Perry v. Brown,

671 F.3d 1052 (9th Cir. 2012) .................................................................. 27-28

Jackson v. Abercrombie, 884 F.Supp.2d 1065 (Haw. 2012) ................................... 17

Kennedy Bldg. Assocs. v. CBS Corp., 476 F.3d 530 (8th Cir. 2007) ......................... 9

Kitchen v. Herbert , 755 F.3d 1193 (10th Cir. 2014) ............................................... 25

Latta v. Otter , 19 F.Supp.3d 1054 (D. Idaho 2014) ..................................... 30 [FN 4]

Lawrence v. Texas, 539 U.S. 558 (2003) ....................................................... 3, 20, 21

Loving v. Virginia, 388 U.S. 1 (1967) ............................................................... 21-23

Mandel v. Bradley, 432 U.S. 173 (1977) ................................................................. 17

Mass. v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ........... 19

McGowan v. Md., 366 U.S. 420 (1961) ................................................................... 10

Nat'l R.R. Passenger Corp. v. A.T.& S.F.R. Co., 470 U.S. 451 (1985) ................... 10

Nevada v. Hall, 440 U.S. 410 (1979) ....................................................................... 34

Nordlinger v. Hahn, 505 U.S. 1 (1992) ................................................................... 10

Pennoyer v. Neff , 95 U.S. 714 (1878) ...................................................................... 11

Perry v. Schwarzenegger , 628 F.3d 1091 (9th Cir. 2011)

(vacated by the Supreme Court) .................................................................... 17

Perry v. Schwarzenegger , 704 F.Supp.2d 921 (N.D. Cal. 2010) ................ 29 [FN 3]



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Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151 (8th Cir. 2008) ............... 8

Roach v. Stouffer , 560 F.3d 860 (8th Cir. 2009) ........................................................ 9

Rodriguez de Quijas v. Shearson/AMEX, Inc., 490 U.S. 477 (1989) ...................... 18

Romer v. Evans, 517 U.S. 620 (1996) ............................................................... 30-31

Sailors v. Bd. of Ed. of County of Kent , 387 U.S. 105 (1967) ................................. 35

Schuette v. Coalition to Defend Affirmative Action,

134 S. Ct. 1623 (2014) ......................................................................... 9-10, 35

Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) ......................... 28-29 [FN 3]

Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D. Cal. 2006) ........ 27, 28 [FN 3]

Smith v. Huckabee, 154 F. App’x 552 (8th Cir. 2005) ............................................ 36

Tully v. Griffin, Inc., 429 U.S. 68 (1976) ................................................................. 18

U.S. v. Windsor , 133 S. Ct. 2675 (2013) .......................................................... passim

Whitewood v. Wolf , 992 F.Supp.2d 410 (M.D. Penn. 2014) ................. 29-30 [FN 4]

Williamson v. Lee Optical of Okla., 348 U.S. 483 (1955) ....................................... 10

Wilson v. Ake, 354 F.Supp.2d 1298 (M.D. Fla. 2005) ........................... 17, 28 [FN 3]

STATUTES PAGE

U.S. Const. Amend. 14 ..................................................................................... passim

28 U.S.C. § 1738 .......................................................................................... 13 [FN 2]

Ark. Const. Amend. 83 ..................................................................................... passim

Ark. Code Ann. § 9-11-105 ........................................................................... 8 [FN 1]



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Ark. Code Ann. § 9-11-106 ........................................................................... 8 [FN 1]

Ark. Code Ann. § 9-11-107 ........................................................................... 1, 5, 7-8

Ark. Code Ann. § 9-11-109 ............................................................................... 1, 5, 7

Ark. Code Ann. § 9-11-208 ............................................................................... 1, 5, 8

Cal. Fam. Code § 300................................................................................... 36 [FN 6]

Conn. Gen. Stat. Ann. § 46b-20a ................................................................. 36 [FN 6]

Del. Code Ann. tit. 13, § 129 ....................................................................... 36 [FN 6]

Haw. Rev. Stat. § 572-1 ............................................................................... 36 [FN 6]

750 Ill. Comp. Stat. Ann. 5/212 ................................................................... 36 [FN 6]

Md. Code Ann., Fam. Law § 2-201 ............................................................. 36 [FN 6]

Minn. Stat. Ann. § 517.01 ............................................................................ 36 [FN 6]

N.H. Rev. Stat. Ann. § 5-C:42 ..................................................................... 36 [FN 6]

N.Y. Dom. Rel. Law § 10 ............................................................................ 36 [FN 6]

R.I. Gen. Laws Ann. § 15-1-1 ...................................................................... 36 [FN 6]

V.T. Stat. Ann. tit. 15, § 8 ............................................................................ 36 [FN 6]

Wash. Rev. Code Ann. § 26.04.010 ............................................................. 36 [FN 6]

OTHER AUTHORITIES PAGE

Op. Ark. Att’y Gen. No. 2013-114 .............................................................. 36 [FN 7]

Op. Ark. Att’y Gen. No. 2013-135 .............................................................. 36 [FN 7]



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JURISDICTIONAL STATEMENT

The United States District Court for the Eastern District of Arkansas had

federal question jurisdiction of this civil action pursuant to 28 U.S.C. § 1331. On

November 25, 2014, the district court issued an Opinion and Order (App. 124;

Add. 1) and Judgment (App. 169; Add. 46) in which the district court declared

Amendment 83 to the Arkansas Constitution and Ark. Code Ann. §§ 9-11-107, 9-

11-109, and 9-11-208 unconstitutional. The district court granted a permanent

injunction against enforcement of Amendment 83 and the Arkansas marriage

statutes, but it stayed execution of the injunctive relief pending final disposition of

this appeal. (App. 170; Add. 47). The State Appellants filed a timely Notice of

Appeal on December 23, 2014. (App. 172). This Court has jurisdiction over final

decisions of district courts pursuant to 28 U.S.C. § 1291.



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STATEMENT OF ISSUES

I. The District Court Erred by Concluding that the Fourteenth

Amendment’s Due Process Clause Provides a Fundamental Rightto Same-Sex Marriage that Requires the State of Arkansas to

Change its Definition of Marriage.

Baker v. Nelson, 409 U.S. 810 (1972)

United States v. Windsor , 133 S. Ct. 2675 (2013)

Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006) DeBoer v. Snyder , 772 F.3d 388 (6th Cir. 2014)

II. The District Court Erred by Concluding that the Traditional

Definition of Marriage Constitutes Gender Discrimination under

the Fourteenth Amendment’s Equal Protection Clause.

Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006)

Geiger v. Kitzhaber , 994 F.Supp.2d 1128 (D. Or. May 19, 2014) Latta v. Otter , 19 F.Supp.3d 1054 (D. Idaho May 13, 2014)

Bishop v. U.S. ex rel. Holder , 962 F.Supp.2d 1252 (N.D. Okla. Jan. 14, 2014)

III. The District Court Erred by Concluding that the Fourteenth

Amendment Requires the State of Arkansas to Recognize Same-

Sex Marriages of other Jurisdictions.

DeBoer v. Snyder , 772 F.3d 388 (6th Cir. 2014)

Nevada v. Hall, 440 U.S. 410 (1979)

Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014)



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STATEMENT OF THE CASE

Plaintiffs-Appellees (“Appellees”) challenge the constitutionality of

Amendment 83 to the Arkansas Constitution (“Amendment 83”) and provisions of

Ark. Code Ann. §§ 9-11-107, 9-11-109, and 9-11-208. Amendment 83 and the

Arkansas marriage statutes codify the traditional man-woman definition of

marriage, and they prohibit the recognition of same-sex marriages of other

jurisdictions under Arkansas law.

Appellees filed their original complaint on July 15, 2013 (App. 8) and an

amended complaint on January 17, 2014 (App. 33), against the Arkansas Attorney

General, the Director of the Arkansas Department of Finance and Administration,

and the Executive Director of the Arkansas Teacher Retirement System

(“Appellants” or the “State”), as well as the Pulaski County Circuit Clerk (not a

party to this appeal). Appellees challenged Arkansas’s marriage laws under the

United States Constitution, asserting the following claims: (1) deprivation of the

fundamental right to marry (App. 44-46); (2) deprivation of Appellees’ liberty

interest in state recognition of same-sex marriages recognized as valid in other

jurisdictions (App. 46-47); (3) deprivation of autonomy, family privacy, and

association rights (App. 47-48); (4) deprivation of the fundamental right to travel

(App. 48-50); (5) discrimination on the basis of sexual orientation (App. 50-54);

and (6) discrimination on the basis of gender (App. 54-56). Appellees requested an



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allegations were not disputed by the defendants below. The district court next

addressed and disposed of non-merits arguments raised in the defendants’ motions

to dismiss. (App. 129-140; Add. 6-17). The State does not challenge the district

court’s rulings on service, abstention, and sovereign immunity in this appeal.

After considering the non-merits arguments, the district court analyzed two

cases that the State contends control the outcome of this case: Baker v. Nelson,

409 U.S. 810 (1972), and Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d

859 (8th Cir. 2006). The district court concluded that the U.S. Supreme Court’s

summary dismissal of an appeal from a state supreme court’s decision upholding a

ban on same-sex marriage in Baker did not require dismissal of this case. The

district court reasoned that doctrinal developments in two other Supreme Court

cases – Lawrence v. Texas, 539 U.S. 558 (2003), and U.S. v. Windsor , 133 S. Ct.

2675 (2013) – undermine the Supreme Court’s summary dismissal of a

constitutional challenge against the traditional definition of marriage in Baker .

(App. 144-147; Add. 21-24). The district court concluded that Bruning controls

Appellees’ sexual-orientation discrimination claim, but nothing more. (App. 147-

149; Add. 24-26).

Turning to Appellees’ constitutional claims, the district court concluded that

marriage is a fundamental right; that Arkansas’s marriage laws restrict Appellees’

fundamental right to marry; and that strict scrutiny applies to Arkansas’s marriage



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laws. (App. 150-154; Add. 27-31). Although the district court noted that it “does

not take lightly a request to declare that a state law is unconstitutional” (App. 154;

Add. 31), and that “[i]t is not on a whim that the Court supplants the will of the

voters[,]” (id .), the district court rejected each of the State’s proffered reasons for

upholding Arkansas’s marriage laws and concluded that Arkansas’s marriage laws

deny same-sex couples their fundamental right to marry in violation of the

Fourteenth Amendment. (App. 154-159; Add. 31-36).

The district court declined to reach and dismissed Appellees’ claim alleging

a Fourteenth Amendment liberty interest in state recognition of same-sex

marriages recognized as valid in other jurisdictions, along with Appellees’ claim

alleging a right to autonomy, family privacy, and association under the Fourteenth

Amendment. (App. 159-160; Add. 36-37). The district court analyzed Appellees’

right-to-travel claim and concluded that Arkansas’s marriage laws do not

impermissibly penalize Appellees’ right to travel and, therefore, granted the State’s

motion to dismiss the right-to-travel claim. (App. 160-161; Add. 37-38). In

addition, the district court concluded that sexual orientation is not a suspect class;

that rational-basis review applies to Appellees’ sexual-orientation discrimination

claim; and that Arkansas’s marriage laws satisfy the rational-basis test. The

district court therefore granted the State’s motion to dismiss Appellees’ sexual-

orientation discrimination claim. (App. 161-162; Add. 38-39). Appellees have not



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cross-appealed the district court’s dismissal of four of Appellees’ six claims.

Finally, the district court concluded that Arkansas’s marriage laws discriminate on

the basis of gender; that intermediate scrutiny applies to Appellees’ gender

discrimination claim; and that Arkansas’s marriage laws fail to satisfy intermediate

scrutiny. (App. 162-164; Add. 39-41).

The State appeals the district court’s conclusion that Amendment 83 and

Arkansas’s marriage laws impermissibly burden the fundamental right to marriage

and the district court’s conclusion that Amendment 83 and Arkansas’s marriage

laws impermissibly discriminate on the basis of gender. The State asks this Court

to reverse the district court’s permanent injunction and hold that Amendment 83

and Ark. Code Ann. §§ 9-11-107, 9-11-109, and 9-11-208 are constitutional.



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ARGUMENT

At the general election held on November 2, 2004, Arkansas voters

approved a constitutional amendment by a vote of 753,770 (74.95%) for, to

251,914 (25.05%) against, which became Amendment 83 to the Arkansas

Constitution. Amendment 83 provides in full:

§ 1. Marriage

Marriage consists only of the union of one man and one

woman.

§ 2. Marital Status

Legal status for unmarried persons which is identical or

substantially similar to marital status shall not be valid or

recognized in Arkansas, except that the legislature may

recognize a common law marriage from another state

between a man and a woman.

§ 3. Capacity, rights, obligations, privileges and

immunities

The Legislature has the power to determine the capacity

of persons to marry, subject to this amendment, and the

legal rights, obligations, privileges, and immunities of

marriage.

Id .

The Arkansas General Assembly had previously adopted Act 144 of 1997,

which declares that “[m]arriage shall only be between a man and a woman” and

that a “marriage between persons of the same sex is void.” Ark. Code Ann. § 9-

11-109. See also Ark. Code Ann. § 9-11-107(b) (stating that Arkansas’s



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recognition of certain foreign marriages “shall not apply to a marriage between

persons of the same sex”). Arkansas law provides further:

(a)(1)(A) It is the public policy of the State of Arkansas

to recognize the marital union only of man and woman.

(B) A license shall not be issued to a person to

marry another person of the same sex, and no

same-sex marriage shall be recognized as entitled

to the benefits of marriage.

(2) Marriages between persons of the same sex are

prohibited in this state. Any marriage entered into by a

person of the same sex, when a marriage license is issued by another state or by a foreign jurisdiction, shall be void

in Arkansas, and any contractual or other rights granted

by virtue of that license, including its termination, shall

be unenforceable in the Arkansas courts.

(3) However, nothing in this section shall prevent an

employer from extending benefits to a person who is a

domestic partner of an employee.

Ark. Code Ann. § 9-11-208.1

Standard of Review

This Court reviews a district court’s ruling on summary judgment de novo.

Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151, 1156 (8th Cir. 2008).

The standard of review of a district court’s entry of a permanent injunction is abuse

1 Arkansas law also expressly prohibits incestuous marriages, declaring them

to be “absolutely void.” Ark. Code Ann. § 9-11-106(a). A violation of the

prohibition of incestuous marriages is a misdemeanor criminal offense. Ark. Code

Ann. § 9-11-106(b). Arkansas law also prohibits marriages of any male under the

age of 17, and any female under the age of 16. Ark. Code Ann. § 9-11-105.



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of discretion. See Roach v. Stouffer , 560 F.3d 860, 863 (8th Cir. 2009). “A district

court abuses its discretion when it bases its decision on a legal error or a clearly

erroneous finding of fact.” Roach, 560 F.3d at 863 (quoting Kennedy Bldg.

Assocs. v. CBS Corp., 476 F.3d 530, 534 (8th Cir. 2007)).

By approving Amendment 83 and thereby adding it to their State

Constitution, the Arkansas voters “exercised their privilege to enact laws as a basic

exercise of their democratic power.” Schuette v. Coalition to Defend Affirmative

Action, 134 S. Ct. 1623, 1636 (2014) (plurality opinion). “[F]reedom does not stop

with individual rights. Our constitutional system embraces, too, the right of

citizens to debate so they can learn and decide and then, through the political

process, act in concert to try to shape the course of their own times[.]” 134 S. Ct.

at 1636-37. The Supreme Court explained:

Were the Court to rule that the question addressed by []

voters is too sensitive or complex to be within the grasp

of the electorate; or that the policies at issue remain too

delicate to be resolved [by the people]; or that these

matters are so arcane that the electorate’s power must be

limited because the people cannot prudently exercise that

power even after a full debate, that holding would be an

unprecedented restriction on the exercise of a

fundamental right held not just by one person but by all

in common. It is the right to speak and debate and learnand then, as a matter of political will, to act through a

lawful electoral process.

Id . at 1637. The voters of Arkansas have a “fundamental right . . . to act through a

lawful electoral process[,]” and they exercised that right by enacting Amendment



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83. Id . As Justice Kennedy properly recognized, any judicial intrusion into the

voters’ exercise of that fundamental right is inconsistent with the underlying

premises of a responsible, functioning democracy. Id .

In enacting Amendment 83, the citizens of Arkansas had “absolutely no

obligation to select the scheme” that a court might later conclude was best. Nat'l

R.R. Passenger Corp. v. A.T.& S.F.R. Co., 470 U.S. 451, 477 (1985). “It is enough

that there is an evil at hand for correction, and that it might be thought that the

particular legislative measure was a rational way to correct it.” Williamson v. Lee

Optical of Okla., 348 U.S. 483, 487-88 (1955). Amendment 83 does not have to be

perfect in order to be constitutional. See McGowan v. Md., 366 U.S. 420, 425-26

(1961) (“State legislatures are presumed to have acted within their constitutional

power despite the fact that in practice, their laws result in some inequality.”). The

presumption that a law is constitutional even though it may be imperfect is even

stronger with regard to laws passed by the citizens themselves at the ballot box.

See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (upholding an initiated act

approved by California voters); Gregory v. Ashcroft , 501 U.S. 452, 470-71 (1991)

(applying rational-basis review and noting that the Court was “dealing not merely

with government action, but with a state constitutional provision approved by the

people of Missouri as a whole” and therefore the “constitutional provision reflects .

. . the considered judgment . . . of the citizens of Missouri who voted for it”).



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As explained below, the State contends that the proper standard for analysis

of Amendment 83 and Arkansas’s marriage laws under the U.S. Constitution is the

rational-basis test. Under rational-basis review, a law is presumed constitutional

and “[t]he burden is on the one attacking the legislative arrangement to negative

every conceivable basis which might support it.” Heller v. Doe, 509 U.S. 312, 320

(1993) (internal quotations omitted). A court conducting rational-basis review

does not sit “as a superlegislature to judge the wisdom or desirability of legislative

policy determinations” but, instead, only asks whether there is some conceivable,

rational basis for the challenged statute. Id ., 509 U.S. at 319.

I. The District Court Erred by Concluding that the Fourteenth

Amendment’s Due Process Clause Provides a Fundamental Right

to Same-Sex Marriage that Requires the State of Arkansas to

Change its Definition of Marriage.

A. Windsor is a federalism case, not a fundamental-right-to-marry

case.

“By history and tradition the definition and regulation of marriage . . . has

been treated as being within the authority and realm of the separate States.”

Windsor , 133 S. Ct. at 2689-90. The Supreme Court has long maintained that a

State “has absolute right to prescribe the conditions upon which the marriage

relation between its own citizens shall be created, and the causes for which it may

be dissolved.” Pennoyer v. Neff , 95 U.S. 714, 734-35 (1878). The Supreme Court

reaffirmed its deeply rooted deference to state regulation of marriage at the outset,



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and at length, in Windsor . 133 S. Ct. at 2691-92. The Court explained that

domestic relations has always been regarded as an exclusive province of the states;

that civil marriage is central to state domestic relations law; that the definition of

marriage is the foundation of the State’s broader authority to protect offspring,

protect property rights, and enforce marital responsibilities; that the federal

government has always deferred to state-law policy decisions respecting domestic

relations and there is no federal law of domestic relations; and that when the

Constitution was adopted, domestic relations of husband and wife and parent and

child were matters reserved to the States. Id .

Thus, in Windsor , the Supreme Court struck down Section 3 of the federal

Defense of Marriage Act (DOMA) not because the recognition of same-sex

marriages is required by the federal Constitution (the Court disavowed any such

principle that same-sex marriages must be recognized), but because the Court

concluded that the federal government lacks authority to discriminate among

opposite-sex and same-sex marriages where both are recognized under state law.

The federal government’s refusal to respect the State’s authority to define marriage

represented a significant – and in the Court’s view, unwarranted – “federal

intrusion on state power” to define marriage. 133 S. Ct. at 2692. The Court

declined to recognize same-sex marriage as a fundamental right under the federal

Constitution, and it declined to recognize homosexuality as a suspect classification



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for purposes of equal protection analysis. Rather, the Court concluded that

federalism concerns undermined the rationality of a federal law that imposed a

definition of marriage contrary to the definition in state law and which did not treat

all marriages authorized under state law as equal. Id . The Windsor majority did

not hold that states are constitutionally required to allow same-sex marriage or

recognize same-sex marriages performed under the laws of other jurisdictions.2

The Windsor majority affirmed the traditional view that it is the province of

individual states to choose which marriages will be recognized under state law.

Indeed, none of the Supreme Court Justices in Windsor – whether in the majority

or in dissent – opined that states are constitutionally required to recognize same-

sex marriage. The four dissenting Justices filed three opinions. Chief Justice

Roberts, Justice Alito, Justice Scalia, and Justice Thomas would have upheld

DOMA. Three of the dissenting Justices clearly indicated a belief that states may

constitutionally retain the traditional definition of marriage. See 133 S. Ct. at

2707-08 (Scalia, J., dissenting, joined in relevant part by Thomas, J.); id . at 2715-

16 (Alito, J., dissenting, joined in relevant part by Thomas, J.). And, Chief Justice

Roberts pointedly emphasized that “while ‘[t]he State’s power in defining the

2 Section 2 of DOMA, which was not at issue in Windsor , explicitly allows

States to decline to recognize same-sex marriages performed under the laws of

other States. See 28 U.S.C. § 1738C (“No State . . . shall be required to give effect

to any public act, record, or judicial proceeding of any other State . . . respecting a

relationship between persons of the same sex that is treated as a marriage under the

laws of such other State . . . or a right or claim arising from such relationship.”).



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marital relation is of central relevance’ to the majority’s decision to strike down

DOMA here, . . . that power will come into play on the other side of the board in

future cases about the constitutionality of state marriage definitions. So too will

the concerns for state diversity and sovereignty that weigh against DOMA’s

constitutionality in this case.” Id . at 2697 (Roberts, C.J., dissenting) (quoting

majority opinion). The views expressed by these four Justices – without any

contrary expression from the Court’s other Justices – strongly suggest that the

Supreme Court would uphold Amendment 83 under the U.S. Constitution.

The question Appellees cannot answer is this: If the majority opinion in

Windsor requires the invalidation of a state law codifying the traditional definition

of marriage, then why did the Windsor majority go to such great length to affirm

state sovereignty over domestic relations and the definition of marriage in a case

where that issue was not even presented? The answer is that DOMA was

invalidated because of state sovereignty over domestic relations, because some

states exercised that authority to limit marriage to opposite-sex couples and other

states exercised that authority to allow same-sex marriage, and because the federal

government has no legitimate interest in regulating marriage in any way that

interferes with state sovereignty over marriage. Windsor affirms the validity of

state laws codifying the traditional definition of marriage and state laws allowing

same-sex marriage. The Court’s invalidation of a federal law limiting marriage to



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opposite-sex couples where some states allow same-sex couples to marry is

entirely consistent with Arkansas’s position that a state law limiting marriage to

opposite-sex couples is constitutional. The State’s position in this case is perfectly

consistent with the entire majority opinion in Windsor .

The federal law at issue in Windsor was unconstitutional because it

interfered with the right of New York citizens to define marriage for their

community. Likewise, Arkansas citizens have the right to define marriage for their

community. Precisely because the “unusual character” of the federal law at issue

in Windsor “depart[ed] from th[e] history and tradition of [federal] reliance on

state law to define marriage[,]” the federal law carried an improper purpose and

effect. 133 S. Ct. at 2692-93. The logic of Windsor does not apply to a state law

defining marriage, because a state law defining marriage is perfectly consistent

with state sovereignty over domestic relations and the definition of marriage.

Appellees’ interpretation of Windsor conflicts with the majority opinion in

Windsor , and it begs the question why the Court included a lengthy discussion of

state sovereignty over domestic relations and the definition of marriage if the Court

would strike down a state constitutional provision where the voters of Arkansas

have exercised the precise authority embraced by the majority in Windsor .



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B. Baker is binding precedent.

Consistent with Windsor , Appellees’ federal due process and equal

protection claims fail on the merits under established federal law. In Baker v.

Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of a substantial

federal question, 409 U.S. 810 (1972), the Minnesota Supreme Court held that a

state statute defining marriage as a union between persons of the opposite sex did

not violate the First, Eighth, Ninth, or Fourteenth Amendments of the U.S.

Constitution. The state supreme court rejected the plaintiffs’ claims, concluding

that same-sex marriage is not a fundamental right. 191 N.W.2d at 186-87. The

court further determined that “[t]he equal protection clause of the Fourteenth

Amendment, like the due process clause, is not offended by the state’s

classification of persons authorized to marry[.]” Id . at 187.

The U.S. Supreme Court summarily dismissed the plaintiffs’ appeal in Baker

“for want of a substantial federal question,” Baker , 409 U.S. 810, where the Court

was presented with the following three questions:

(1) Whether [Minnesota’s] refusal to sanctify appellants’

marriage deprives appellants of their liberty to marry and

of their property without due process of law under the

Fourteenth Amendment.

(2) Whether [Minnesota’s] refusal, pursuant to Minnesota

marriage statutes, to sanctify appellants’ marriage

because both are of the male sex violates their rights

under the equal protection clause of the Fourteenth

Amendment.



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(3) Whether [Minnesota’s] refusal to sanctify appellants’

marriage deprives appellants of their right to privacy

under the Ninth and Fourteenth Amendments.

“The Supreme Court has not explicitly or implicitly overturned its holding in

Baker or provided the lower courts with any reason to believe that the holding is

invalid.” Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1085 (Haw. 2012) (citing

Perry v. Schwarzenegger , 628 F.3d 1091, 1099 n.1 (9th Cir. 2011) (N. R. Smith, J.,

concurring in part and dissenting in part) (vacated by the Supreme Court)

(concluding that the Supreme Court cases following Baker do not suggest any

doctrinal developments indicating Baker is no longer good law); Wilson v. Ake,

354 F.Supp.2d 1298, 1305-06 (M.D. Fla. 2005) (same)).

Therefore, Baker constitutes binding precedent as far as lower courts are

concerned. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (summary dismissals

by the Court “prevent lower courts from coming to opposite conclusions on the

precise issues presented and necessarily decided by those actions.”); Hicks v.

Miranda, 422 U.S. 332, 344 & 345 n.14 (1975) (summary dismissals by the Court

constitute a ruling on the merits by the Court; “unless and until the Supreme Court

should instruct otherwise, inferior federal courts had best adhere to the view that if

the Court has branded a question as unsubstantial, it remains so except when

doctrinal developments indicate otherwise[.]”).



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The Supreme Court’s dismissal of the appeal in Baker was a decision on the

merits that constitutes “controlling precedent, unless and until re-examined by [the

Supreme] Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976). This Court has an

obligation to “adhere to the view that if the [Supreme] Court has branded a

question as unsubstantial, it remains so except when doctrinal developments

indicate otherwise[.]” Hicks, 422 U.S. at 344-45. “The lower courts are bound by

summary decisions by [the Supreme] Court until such time as the Court informs

[them] that [they] are not.” Id . Indeed, when “a precedent of [the Supreme] Court

has direct application in a case,” this Court must follow it even if it “appears to rest

on reasons rejected in some other line of decisions.” Rodriguez de Quijas v.

Shearson/AMEX, Inc., 490 U.S. 477, 484 (1989). “[T]he Court of Appeals should

follow the case which directly controls, leaving to [the Supreme] Court the

prerogative of overruling its own decisions.” Id .

Baker is a precedential disposition on the merits which Hicks and Rodriguez

de Quijas make clear this Court is not at liberty to disregard. The Baker Court

confirmed that the Constitution commits questions of marriage policy to the

citizens of each state and that, absent exceptional circumstances, federal courts

should resist the temptation to interfere with state marriage regulation. Appellees

and the district court attempt to turn the command of Baker on its head. Baker is

binding precedent that requires dismissal of due process, equal protection, and



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privacy claims brought against any state law codifying the traditional definition of

marriage. Appellees’ federal claims fail under Baker alone. See DeBoer v. Snyder ,

772 F.3d 388, 399-402 (6th Cir. 2014) (concluding that Baker is binding precedent

in analogous case); Mass. v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8

(1st Cir. 2012) (same), cited in Windsor , 133 S. Ct. at 2688, 2693; Conde-Vidal v.

Garcia-Padilla, No. 14-1253 PG, 2014 WL 5361987, at *6 (D.P.R. Oct. 21, 2014)

(same).

Appellees have argued in this case, and the district court concluded, that

“doctrinal developments” since Baker have rendered Baker irrelevant, and have

overridden the precedential effect of Baker . Of course, there is no discussion of

Baker in the Windsor opinion, despite the fact that Baker was squarely presented to

the Court. Rather than overruling Baker , or noting any significant doctrinal

development that would call Baker into question, the Court affirmed its deeply

rooted deference to state regulation of marriage. Windsor , 133 S. Ct. at 2691-92.

Nothing in the Court’s Windsor opinion remotely questions the Court’s decision in

Baker . Baker is not even cited in the Court’s majority opinion in Windsor , which

indicates that doctrinal developments have not overridden the precedential effect of

Baker . If anything, Windsor ’s emphasis on the unprecedented federal intrusion

into the states’ authority over domestic relations reaffirms Baker ’s conclusion that

a state’s definition of marriage presents no “substantial federal question.” Baker ,



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409 U.S. at 810. The Windsor opinion expressly “confined [itself] to . . . lawful

marriages” recognized by other states and disavowed having any effect on state

laws which themselves regulate marriage. Windsor , 133 S. Ct. at 2696.

Lawrence v. Texas, 539 U.S. 558 (2003), was not a doctrinal development of

the sort that would undermine Baker . In Lawrence, the Supreme Court invalidated

a state law criminalizing sodomy, but the Court was careful to note that the Texas

statute at issue did “not involve whether the government must give formal

recognition to any relationship that homosexual persons seek to enter.” 539 U.S. at

578. This is not a case like Lawrence, where the right to engage in private,

consensual sexual activity in one’s home was burdened by a law criminalizing

homosexual conduct. Id . Lawrence may have represented a significant doctrinal

development in the Court’s recognition of privacy rights in the bedroom, but it

does not represent a significant doctrinal development relevant to this case in

which Appellees seek to require formal governmental recognition of their

relationships. The Supreme Court has consistently and repeatedly declined to

recognize a fundamental constitutional due process, equal protection, or privacy

right of the type advocated by Appellees in this case.

The Supreme Court has never held that there is a fundamental right to same-

sex marriage warranting heightened scrutiny, nor has the Supreme Court ever held

that sexual orientation constitutes a suspect classification, including in Lawrence



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and Windsor . See Bourke v. Beshear , 996 F.Supp.2d 542, 549 (W.D. Ky. 2014)

(“Despite this comforting language [in Windsor ], neither the Supreme Court nor

the Sixth Circuit has stated that the fundamental right to marry includes a

fundamental right to marry someone of the same sex.”). Indeed, in the most recent

pre-Windsor Supreme Court case cited by Appellees for their argument that

heightened scrutiny should apply to their federal claims, the Court was careful to

note that the sodomy statute at issue in that case did “not involve whether the

government must give formal recognition to any relationship that homosexual

persons seek to enter.” Lawrence, 539 U.S. at 578. See also id. at 585 (O’Connor,

J., concurring) (“Texas cannot assert any legitimate state interest here, such as

national security or preserving the traditional institution of marriage. Unlike the

moral disapproval of same-sex relations – the asserted interest in this case – other

reasons exist to promote the institution of marriage beyond mere moral

disapproval of an excluded group.”) (emphasis added).

C. Loving does not give rise to a fundamental right to same-sex

marriage.

Appellees have also argued that they enjoy a fundamental constitutional

right to same-sex marriage under Loving v. Virginia, 388 U.S. 1 (1967). It is

correct that Loving recognized exceptional circumstances in which judicial

interference with state regulation of marriage is needed – such as when a husband

and wife face criminal sanctions for marrying when they happen to be of different



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restrictions on the right to enter marriage, and that the Constitution is not offended

by a state’s choice to define marriage as an opposite-sex relationship.

D. This Court should follow the Sixth Circuit’s decision in

DeBoer .

The State is not tilting at windmills in this case. To the contrary, the State

seeks to affirm and preserve bedrock authority that supports constitutional

democracy. In DeBoer v. Snyder , the Sixth Circuit Court of Appeals affirmed the

constitutional validity of the essentially identical marriage laws of Michigan, Ohio,

Kentucky, and Tennessee (also essentially identical to Arkansas’s marriage

definition codified in Amendment 83). 772 F.3d 388. In DeBoer , Judge Sutton

began by noting that, “[f]or better, for worse, or for more of the same, marriage has

long been a social institution defined by relationships between men and women.

So long defined, the tradition is measured in millennia, not centuries or decades.

So widely shared, the tradition until recently had been adopted by all governments

and major religions of the world.” Id ., 772 F.3d at 395-96.

The Sixth Circuit directly addressed a question presented in this case: “Does

the Due Process Clause or the Equal Protection Clause of the Fourteenth

Amendment require states to expand the definition of marriage to include same-sex

couples?” 772 F.3d at 399. The Sixth Circuit began by discussing Baker and

noting that “[t]he [Supreme] Court has yet to inform us that we are not [bound by

Baker ], and we have no license to engage in a guessing game about whether the



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Court will change its mind or, more aggressively, to assume authority to overrule

Baker ourselves.” Id . at 400. Regarding the argument that Baker was implicitly

overruled by Windsor , the Sixth Circuit noted that:

Windsor does not answer today’s question. The decision

never mentions Baker , much less overrules it. And the

outcomes of the cases do not clash. Windsor invalidated

a federal law that refused to respect state laws permitting

gay marriage, while Baker upheld the right of the people

of a state to define marriage as they see it. To respect

one decision does not slight the other.

Id . Regarding the argument that doctrinal developments have rendered Baker no

longer controlling, the Sixth Circuit explained that no case – including Windsor ,

Lawrence, or any other Supreme Court decision – has overruled Baker by name or

by outcome. To read doctrinal developments to overrule a Supreme Court decision

under such circumstances “returns us to a world in which the lower courts may

anticipatorily overrule all manner of Supreme Court decisions based on counting-

to-five predictions, perceived trajectories in the caselaw, or, worst of all, new

appointments to the Court.” Id . at 401.

Next, the Sixth Circuit exhaustively analyzed at least six theories offered by

the various plaintiffs from the four states, including original meaning ( DeBoer , 772

F.3d at 403-04), rational basis review (id . at 404-08), animus (id . at 408-10), the

fundamental right to marry (id . at 410-13), homosexuality as a suspect class (id . at

413-16), and evolving meaning (id . at 416-18), and concluded that “[n]ot one of



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legislation on the subject in accordance with their political processes. The U.S.

Constitution does not, in my judgment, restrict the States’ policy choices on this

issue. If given the choice, some States will surely recognize same-sex marriage

and some will surely not. But that is, to be sure, the beauty of federalism.”).

E. Conclusion

Appellees’ federal constitutional claims are barred nationwide by Baker .

This Court should follow the Supreme Court’s precedential command that federal

courts must avoid substituting their own definition of marriage for that adopted by

a state’s citizenry. Even without Baker , the federal due process claims fail under

Windsor and the reasoning of DeBoer . The district court erred by granting partial

summary judgment to Appellees on their claim of a fundamental right to same-sex

marriage. This Court should reverse the decision below and uphold the validity of

Amendment 83 and Arkansas’s marriage laws under the U.S. Constitution.

II. The District Court Erred by Concluding that the Traditional

Definition of Marriage Constitutes Gender Discrimination under

the Fourteenth Amendment’s Equal Protection Clause.

The district court’s conclusion that Amendment 83 and Arkansas’s marriage

laws treat individuals differently on the basis of their gender is incorrect. In fact,

Amendment 83 treats all persons exactly the same without regard to gender.

Under Arkansas law, no person, male or female, may marry a person of the same

gender. Appellees are not classified or treated differently on the basis of their



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embodied in the marriage statutes is not subject to strict scrutiny on that

ground.”).3

3 See also, Conaway v. Deane, 932 A.2d 571, 598 (Md. 2007) (“[T]he

marriage statute does not discriminate on the basis of sex in violation of [equal

protection]. The limitations on marriage effected by [the marriage statute] do not

separate men and women into discrete classes for the purpose of granting to one

class of persons benefits at the expense of the other class. Nor does the statute,

facially or in its application, place men and women on an uneven playing field.

Rather, the statute prohibits equally both men and women from the same

conduct.”); Anderson v. King County, 138 P.3d 963, 988 (Wash. 2006) (“Men and

women are treated identically under DOMA; neither may marry a person of the

same sex. DOMA therefore does not make any ‘classification by sex,’ and it doesnot discriminate on account of sex.”) (citations omitted); Hernandez v. Robles, 855

N.E.2d 1, 10-11 (N.Y. 2006) (“By limiting marriage to opposite-sex couples, New

York is not engaging in sex discrimination. The limitation does not put men and

women in different classes, and give one class a benefit not given to the other.

Women and men are treated alike – they are permitted to marry people of the

opposite sex, but not people of their own sex.”); Smelt v. County of Orange, supra,

374 F.Supp.2d at 876-77; Wilson v. Ake, supra, 354 F.Supp.2d at 1307-08

(“DOMA does not discriminate on the basis of sex because it treats women and

men equally.”); In re Kandu, 315 B.R. 123, 143 (Bankr. W.D. Wash. 2004)(“DOMA . . . does not single out men or women as a discrete class for unequal

treatment. Rather, a marriage law such as DOMA prohibits men and women

equally from marrying a person of the same sex. Women, as members of one

class, are not being treated differently from men, as members of a different class . .

. Accordingly, the marriage definition contained in DOMA does not classify

according to gender[.]”) (internal quotations and citations omitted); Baker v.

Vermont , 744 A.2d 864, 880 n.13 (Vt. 1999) (“[T]he marriage laws are facially

neutral; they do not single out men or women as a class for disparate treatment, but

rather prohibit men and women equally from marrying a person of the same sex . .

. Here, there is no discrete class subject to differential treatment solely on the basisof sex; each sex is equally prohibited from precisely the same conduct.”); Dean v.

District of Columbia, 653 A.2d 307, 363 n.2 (D.C. 1995) (Steadman, J.,

concurring) (concluding that it “stretch[es] the concept of gender discrimination to

assert that it applies to treatment of same-sex couples differently from opposite-sex

couples”); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974) (“[I]t is

apparent that the state’s refusal to grant a license allowing the appellants to marry



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In Windsor , the Supreme Court did not consider a gender discrimination

claim against the traditional definition of marriage set forth in DOMA. In the

wake of Windsor , although many district courts have ruled in favor of plaintiffs

under a variety of theories, most of the district courts to reach the issue have

concluded that the traditional definition of marriage does not amount to

impermissible gender discrimination. See, e.g., Geiger v. Kitzhaber , 994

F.Supp.2d 1128, 1139-40 (D. Or. 2014) (“The state’s marriage laws discriminate

based on sexual orientation, not gender. In fact, the ban does not treat genders

differently at all. Men and women are prohibited from doing the exact same thing:

marrying an individual of the same gender. The ban does not impact males and

females differently”).4

one another is not based upon appellants’ status as males . . . appellants are not being discriminated against because of their status as males per se.”); but see Perry

v. Schwarzenegger , 704 F.Supp.2d 921, 996 (N.D. Cal. 2010) (“Proposition 8

targets gays and lesbians in a manner specific to their sexual orientation and,

because of their relationship to one another, Proposition 8 targets them specifically

due to sex.”).

4 See also, Baskin v. Bogan, 12 F.Supp.3d 1144, 1159 (S.D. Ind. 2014)

(“Unlike Loving, where the court found evidence of invidious racial

discrimination, the court finds no evidence of an invidious gender-based

discrimination here. Moreover, there is no evidence that the purpose of themarriage laws is to ratify a stereotype about the relative abilities of men and

women or to impose traditional gender roles on individuals.”) (internal citation

omitted); Whitewood v. Wolf , 992 F.Supp.2d 410, 425 n.9 (M.D. Penn. 2014) (“As

an additional, alternative argument, Plaintiffs also contend that the Marriage Laws

impose sex-based classifications and, on this ground, are subject to intermediate

scrutiny. We find this characterization less compelling, observing, as a practical



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The district court correctly upheld Amendment 83 and Arkansas’s marriage

laws and properly rejected Appellees’ sexual-orientation discrimination claim

based upon this Court’s decision in Citizens for Equal Protection, Inc. v. Bruning,

455 F.3d 859 (8th Cir. 2006). In Bruning, this Court squarely addressed the

constitutionality of a substantively identical state constitutional amendment, and it

specifically held that the plaintiffs’ “equal protection argument fails on the merits.”

455 F.3d at 864-69. This Court noted that sexual orientation is not a suspect

classification for purposes of equal protection analysis, and rational-basis review

applies to a state law defining marriage. Id . (citing Romer v. Evans, 517 U.S. 620

matter, that the intentional discrimination occurring in this case has nothing to do

with gender-based prejudice or stereotypes.”) (internal quotation and citation

omitted); Latta v. Otter , 19 F.Supp.3d 1054, 1074 (D. Idaho 2014) (“Idaho’s

Marriage Laws allow heterosexuals, but not homosexuals, to marry and thus

clearly discriminate on the basis of sexual orientation. This distinction does not prefer one gender over the other – two men have no more right to marry under

Idaho law than two women. In other words, Idaho’s Marriage Laws are facially

gender neutral and there is no evidence that they were motivated by a gender

discriminatory purpose.”); Bishop v. U.S. ex rel. Holder , 962 F.Supp.2d 1252,

1286 (N.D. Okla. 2014) (“[T]he Court’s defined class is same-sex couples desiring

an Oklahoma marriage license. This class of individuals is excluded from

marriage regardless of their gender, i.e., regardless of whether they are two men or

two women. Part A does not draw any distinction between same-sex male couples

and same-sex female couples, does not place any disproportionate burdens on men

and women, and does not draw upon stereotypes applicable only to male or femalecouples. The female couples in this case could readily be substituted for male

couples, and the male couples would be forced to make precisely the same ‘sex

discrimination’ arguments. Common sense dictates that the intentional

discrimination occurring in this case has nothing to do with gender-based prejudice

or stereotypes, and the law cannot be subject to heightened scrutiny on that

basis.”).



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(1996)). This Court emphasized that “[w]hatever our personal views regarding this

political and sociological debate, we cannot conclude that the State’s justification

‘lacks a rational relationship to legitimate state interests.’” Id . at 868 (citing

Romer , 517 U.S. at 632). In conclusion, the Court noted: “In the nearly one

hundred and fifty years since the Fourteenth Amendment was adopted, to our

knowledge no Justice of the Supreme Court has suggested that a state statute or

constitutional provision codifying the traditional definition of marriage violates the

Equal Protection Clause or any other provision of the United States Constitution.”

Id . at 870.

The district court properly applied the rational-basis test, concluded that

Amendment 83 and Arkansas’s marriage laws satisfy the rational-basis test, and

granted the State’s motion to dismiss Appellees’ sexual-orientation discrimination

claim under Bruning. But the district court went astray when it distinguished

Bruning and concluded that Bruning has no bearing on Appellees’ due process and

gender discrimination claims. While this Court did not directly address a due

process or gender discrimination claim in Bruning, this Court broadly upheld a

substantively identical state constitutional provision and concluded that the

traditional definition of marriage is constitutional. Appellees’ additional claims

raised against an essentially identical state definition of marriage in this case

likewise “fail on the merits” as a matter of law.



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It should be noted that although the Supreme Court has characterized the

questions presented in its Sixth Circuit certiorari grant broadly enough to

encompass a gender discrimination claim (or any equal protection discrimination

claim),5 the Sixth Circuit’s expansive opinion contains no discussion of any gender

discrimination claim. Although it is impossible to reliably predict how the

Supreme Court will reason among the myriad claims and underlying standards

encompassed by the questions the Court will review in DeBoer , or even from

among the six theories asserted by the plaintiffs and considered by the Sixth

Circuit ( DeBoer , 772 F.3d at 403-18), it appears likely that the Supreme Court will

decide the constitutionality of traditional state marriage definitions without even

considering any gender discrimination claim. This makes perfect sense, of course,

because Amendment 83 and similar laws do not plausibly discriminate on the basis

of gender. The Appellees and the district court, bound by Bruning, devised a

workaround based upon a novel but illogical and unsupported gender

discrimination theory. This Court should hold that Amendment 83 does not

discriminate on the basis of gender.

In summary, Amendment 83 and the Arkansas marriage laws treat men and

women exactly the same. Because Amendment 83 and the marriage laws do not

5 See Order List, 574 U.S. ___ (Jan. 16, 2015), Obergefell, James, et al. v.

Hodges, Richard, et al. (No. 14-556), Tanco, Valeria, et al. v. Haslem, Gov. of TN,

et al. (No. 14-562), DeBoer, April, et al. v. Snyder, Gov. of MI, et al. (No. 14-571),

and Bourke, Gregory, et al. v. Beshear, Gov. of KY, et al. (No. 14-574).



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discriminate on the basis of gender, but in fact treat men and women equally, the

district court improperly applied intermediate scrutiny and improperly granted

partial summary judgment to Appellees on their gender discrimination claim. The

district court’s gender discrimination ruling should be reversed, and this Court

should hold that Amendment 83 and Arkansas’s marriage laws do not discriminate

on the basis of gender.

III. The District Court Erred by Concluding that the Fourteenth

Amendment Requires the State of Arkansas to Recognize Same-

Sex Marriages of other Jurisdictions.

As the Sixth Circuit explained in DeBoer , if it is constitutional for Arkansas

to adhere to the traditional man-woman definition of marriage, then it is

constitutional for Arkansas to decline to recognize same-sex marriages authorized

by other jurisdictions:

Does the Constitution prohibit a State from denying

recognition to same-sex marriages conducted in other

States? . . . Our answer to the first question goes a long

way toward answering this one. If it is constitutional for

a State to define marriage as a relationship between a

man and a woman, it is also constitutional for the State to

stand by that definition with respect to couples married in

other States or countries.

DeBoer , 772 F.3d at 418. Although the plaintiffs in DeBoer did not contend that

the refusal to recognize foreign same-sex marriages violates the Full Faith and

Credit Clause (and neither do Appellees in this case), the Sixth Circuit noted that

the Full Faith and Credit Clause “does not require a State to apply another State’s



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law in violation of its own legitimate public policy.” Id . (citing Nevada v. Hall,

440 U.S. 410, 422 (1979)). The DeBoer plaintiffs instead argued that the failure to

recognize gay marriages celebrated in other jurisdictions violates the Due Process

and Equal Protection Clauses. Id . However, as the Sixth Circuit explained earlier

in the opinion, compliance with due process and equal protection “in this setting

requires only a rational relationship between the legislation and a legitimate public

purpose.” Id . at 418-19. “[A] State does not behave irrationally by insisting upon

its own definition of marriage rather than deferring to the definition adopted by

another State. Preservation of a State’s authority to recognize, or opt not to

recognize, an out-of-state marriage preserves a State’s sovereign interest in

deciding for itself how to define the marital relationship.” Id . at 419.

In their operative complaint below, Appellees raised only one claim that

challenged the provisions of Amendment 83 and Arkansas law declining to

recognize same-sex marriages of other jurisdictions – the liberty interest claim in

which Appellees challenged “Arkansas’s refusal to recognize [Appellees’] valid

out-of-state marriage[.]” (App. 46). The district court declined to reach and

dismissed Appellees’ liberty interest claim. (App. 159-160; Add. 36-37).

Appellees have not cross-appealed. It is unclear what basis the district court had

for ordering injunctive relief requiring the State to recognize valid same-sex

marriages of other jurisdictions (App. 170; Add. 47), given that the district court



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dismissed Appellees’ only claim connected to that injunctive relief. In any event,

the definition and recognition provisions of Amendment 83 and Arkansas’s

marriage laws stand or fall together. Because Arkansas’s definition of marriage is

constitutional, so too is Arkansas’s decision to decline recognition of same-sex

marriages of other jurisdictions. The district court’s injunction requiring Arkansas

to recognize same-sex marriages of other jurisdictions should be reversed.

CONCLUSION

“This case is not about how the debate about [marriage] should be resolved.

It is about who may resolve it.” Schuette, 134 S. Ct. at 1638. “There is no

authority in the Constitution of the United States or in [the United States Supreme

Court’s] precedents for the Judiciary to set aside [Arkansas] laws that commit this

policy determination to the voters.” Id . (citing Sailors v. Bd. of Ed. of County of

Kent , 387 U.S. 105, 109 (1967)). As the Sixth Circuit explained in DeBoer , it is

“[b]etter in this instance . . . to allow change through the customary political

processes, in which the people, gay and straight alike, become the heroes of their

own stories by meeting each other not as adversaries in a court system but as

fellow citizens seeking to resolve a new social issue in a fair-minded way.” Id .,

772 F.3d at 421. Thoughtful, dedicated jurists who strive to reach the correct

outcome have considered this issue and arrived at contrary results. This Court

should take a cautious approach, with appropriate deference to the democratic



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process and domestic relations law of the State of Arkansas. See, e.g., Smith v.

Huckabee, 154 F. App’x 552, 555 (8th Cir. 2005) (declining to exercise

jurisdiction over questions implicating state domestic relations law), citing Elk

Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17 (2004).

Both before and after Windsor and the subsequent eruption of marriage

litigation, state citizens have considered the issue of same-sex marriage and,

through legislation, popular referendum, or constitutional amendment, voiced their

views on this question of immense public importance.6 Many other states,

including Arkansas, have used their democratic process to retain the traditional

definition of marriage. The relief requested by Appellees in this case lies in the

democratic process,7 not the judicial branch.

6 At least 12 states and the District of Columbia have extended the

traditional definition of marriage to include same-sex couples by statute or ballot

initiative. See Cal. Fam. Code § 300 (permitting same-sex marriage); Conn. Gen.

Stat. Ann. § 46b-20a (same); Del. Code Ann. tit. 13, § 129 (same); Haw. Rev. Stat.

§ 572-1 (same); 750 Ill. Comp. Stat. Ann. 5/212 (same); Md. Code Ann., Fam.

Law § 2-201 (same); Minn. Stat. Ann. § 517.01 (same); N.H. Rev. Stat. Ann. § 5-

C:42 (same); N.Y. Dom. Rel. Law § 10 (same); R.I. Gen. Laws Ann. § 15-1-1

(same); V.T. Stat. Ann. tit. 15, § 8 (same); Wash. Rev. Code Ann. § 26.04.010

(same).

7 To that end, two ballot measures that would repeal Amendment 83 have

been certified by the Arkansas Attorney General to appear on the Arkansas ballot.

See Op. Ark. Att’y Gen. No. 2013-114 (certifying proposed constitutional

amendment to repeal Amendment 83); Op. Ark. Att’y Gen. No. 2013-135

(certifying proposed constitutional amendment to repeal Amendment 83 and

authorize same-sex marriage in Arkansas).



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CERTIFICATE OF SERVICE

I, Colin R. Jorgensen, Assistant Attorney General, do hereby certify that on

February 17, 2015, I electronically submitted for filing the foregoing brief with the

Clerk of the Court for the United States Court of Appeals for the Eighth Circuit

via the CM/ECF system. Participants in the case who are registered CM/ECF

users will be served by the CM/ECF system.

/s/ Colin R. Jorgensen

Colin R. Jorgensen, Ark. Bar No. 2004078

Assistant Attorney General

323 Center Street, Suite 200

Little Rock, AR 72202(501) 682-3997

[email protected]

Documents

15-1022 Opening Brief