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Thomas C. Horne
Attorney General
Robert L. Ellman (AZ Bar No. 014410)
Solicitor General
Email: [email protected]
Kathleen P. Sweeney (AZ Bar No. 011118)
Assistant Attorney General
1275 W. Washington
Phoenix, Arizona 85007-2997
Telephone: (602) 542-3333
Fax: (602) 542-8308
Email: [email protected]
Byron J. Babione (AZ Bar No. 024320)
James A. Campbell (AZ Bar No. 026737)Kenneth J. Connelly (AZ Bar
No. 025420)
J. Caleb Dalton (AZ Bar No. 030539)
Special Assistant Attorneys General
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, Arizona 85260
Telephone: (480) 444-0020
Fax: (480) 444-0028
Email:[email protected]
Email:[email protected]:
[email protected]
Email: [email protected]
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Nelda Majors, et al.,
Plaintiffs,v.
Michael K. Jeanes, in his official capacity
as Clerk of the Superior Court of
Maricopa County, Arizona, et al.,
Defendants.
Case No: 2:14-cv-00518-JWS
DEFENDANTS CROSS-MOTIONFOR SUMMARY JUDGMENT AND
MEMORANDUM OF LAW IN
SUPPORT WITH CONSOLIDATED
RESPONSE IN OPPOSITION TO
PLAINTIFFS MOTION FOR
SUMMARY JUDGMENT
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Table of Contents
Table of Authorities
............................................................................................................
ii
Introduction
........................................................................................................................
1
Argument
............................................................................................................................
2
I.
The Supreme CourtsBakerDecision Forecloses Plaintiffs Claims.
.................... 2
II.
The Fourteenth Amendment Does Not Forbid Arizona from
Maintaining its
Man-Woman Marriage Definition.
.........................................................................
4
A.
Rational-Basis Review Applies to Plaintiffs Claims.
................................. 4
1. SmithKlineDoes Not Require Heightened Scrutiny in this
Case.
..................................................................................................
4
2.
Arizonas Man-Woman Marriage Definition Does Not
Impermissibly Discriminate Based on Sex.
...................................... 8
3.
Arizonas Man-Woman Marriage Definition Does Not
Infringe Fundamental Rights.
......................................................... 10
4.
Arizonas Out-of-State-Marriage-Recognition Policy Is Not
Subject to Heightened Scrutiny.
...................................................... 14
B.
The Man-Woman Marriage Definition Satisfies Constitutional
Review.
.......................................................................................................
16
1.
Arizonas Man-Woman Marriage Definition Furthers the
States Compelling Interest in Connecting Children to Both
Their Biological Mother and Their Biological Father.
................... 17
2.
Arizonas Man-Woman Marriage Definition Avoids the
Long-Term Adverse Consequences that the State Could
Logically Project Would Accompany the Redefinition of
Marriage.
.........................................................................................
22
3.
The Challenged Marriage Laws Protect the Peoples Right to
Define Marriage for Their Community.
.......................................... 27
4.
Plaintiffs Attempts to Impugn the Purposes for Arizonas
Man-Woman Marriage Definition Are Unavailing.
....................... 28
III.
If the Court Grants Plaintiffs Motion and Enjoins the States
Man-Woman
Marriage Definition, the Court Should Stay Its Ruling Pending
Appeal. ............. 30
Conclusion
........................................................................................................................
31
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Table of Authorities
Cases:
Adoptive Couple v. Baby Girl,
133 S. Ct. 2552 (2013)
.............................................................................17,
18, 19
Andersen v. King County,
138 P.3d 963 (Wash. 2006)
.................................................................
9, 14, 20, 21
Baehr v. Lewin,
852 P.2d 44 (Haw.
1993)..................................................................................9,
13
Baker v. General Motors Corp.,
522 U.S. 222 (1998)
.............................................................................................15
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971)
.............................................................. 2,
9, 13, 21
Baker v. Nelson,
409 U.S. 810 (1972)
..........................................................................................
2, 3
Baker v. State,
744 A.2d 864 (Vt. 1999)
........................................................................................9
Bostic v. Schaefer,
No. 14-1167, 2014 WL 3702493 (4th Cir. July 28, 2014)
...................................13
Bowen v. Gilliard,
483 U.S. 587 (1987)
.......................................................................................17,
18
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006)
.................................................................
5, 7, 16, 21
City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985)
.....................................................................................7,
8, 29
City of Cuyahoga Falls, Ohio v. Buckeye Community Hope
Foundation,
538 U.S. 188 (2003)
...............................................................................................6
Coalition for Economic Equity v. Wilson,
122 F.3d 718 (9th Cir. 1997)
................................................................................30
Conaway v. Deane,
932 A.2d 571 (Md. 2007)
...........................................................................9,
13, 21
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25
26
27
28
Cook v. Cook,
104 P.3d 857 (Ariz. Ct. App. 2005)
.....................................................................15
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008)
....................................................................................5
Craig v. Boren,
429 U.S. 190 (1976)
...............................................................................................8
Dandridge v. Williams,
397 U.S. 471 (1970)
.............................................................................................16
District Attorneys Office for Third Judicial District v.
Osborne,
557 U.S. 52 (2009)
...............................................................................................11
Evans v. Utah,
No. 2:14CV55DAK, 2014 WL 2048343 (D. Utah May 19, 2014)
................30, 31
FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993)
.............................................................................................16
Forsythe v. Paschal,
271 P. 865 (Ariz. 1928)
..........................................................................................1
Frontiero v. Richardson,
411 U.S. 677 (1973)
...............................................................................................8
Goodridge v. Department of Public Health,798 N.E.2d 941 (Mass.
2003)
..................................................................10,
11, 25
Grutter v. Bollinger,
539 U.S. 306 (2003)
.............................................................................................22
Heller v. Doe,
509 U.S. 312 (1993)
.......................................................................................16,
21
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006)
.....................................................................
7, 9, 14, 21
Hicks v. Miranda,
422 U.S. 332 (1975)
...............................................................................................3
Humane Society of U.S. v. Gutierrez,
558 F.3d 896 (9th Cir. 2009)
................................................................................30
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Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012)
...........................................................20,
21
Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004)
..................................................................................5
Johnson v. Robison,
415 U.S. 361 (1974)
.................................................................................19,
20, 21
Jones v. Hallahan,
501 S.W.2d 588 (Ky. 1973)
.................................................................................13
Kahawaiolaa v. Norton,
386 F.3d 1271 (9th Cir. 2004)
................................................................................4
Lawrence v. Texas,
539 U.S. 558 (2003)
.....................................................................................3,
4, 14
Lewis v. Harris,
908 A.2d 196 (N.J. 2006)
..............................................................................
13, 23
Lofton v. Secretary of the Department of Children & Family
Services,
358 F.3d 804 (11th Cir. 2004)
..........................................................................5,
19
Loving v. Virginia,
388 U.S. 1 (1967)
................................................................................
9, 10, 13, 16
Mandel v. Bradley,432 U.S. 173 (1977).
..............................................................................................3
In re Marriage Cases,
183 P.3d 384 (Cal.
2008)........................................................................................9
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. Ct. App. 2010)
......................................................... 14 ,
21
Michael M. v. Superior Court,
450 U.S. 464 (1981)
.......................................................................................21,
22
Mississippi University for Women v. Hogan,
458 U.S. 718 (1982)
...............................................................................................8
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005)
.........................................................13, 20,
21
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Schuette v. BAMN,
134 S. Ct. 1623 (2014)
...............................................................................2,
22, 28
Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974)
.............................................................9,
21
Smith v. Organization of Foster Families for Equality &
Reform,
431 U.S. 816 (1977)
.............................................................................................17
SmithKline Beecham Corp. v. Abbott Laboratories,
740 F.3d 471 (9th Cir. 2014)
..........................................................................4,
6, 8
Soos v. Superior Court,
897 P.2d 1356 (Ariz. Ct. App. 1994)
...................................................................17
Standhardt v. Superior Court,
77 P.3d 451 (Ariz. Ct. App. 2003)
...........................................................13, 20,
21
Steffan v. Perry,
41 F.3d 677 (D.C. Cir. 1994)
.................................................................................5
Strauss v. Horton,
207 P.3d 48 (Cal.
2009)..........................................................................................9
Thomasson v. Perry,
80 F.3d 915 (4th Cir. 1996)
....................................................................................5
Troxel v. Granville,530 U.S. 57 (2000)
...............................................................................................18
Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994)
.............................................................................................22
Turner Broadcasting System, Inc. v. FCC,
520 U.S. 180 (1997)
.............................................................................................22
Turner v. Safley,
482 U.S. 78 (1987)
...............................................................................................13
United States v. Tenney,
11 P. 472 (1886)
.....................................................................................................1
United States v. Virginia,
518 U.S. 515 (1996)
..............................................................................
8, 9, 10, 16
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United States v. Windsor,
133 S. Ct. 2675 (2013)
.................................................................................passim
Vacco v. Quill,
521 U.S. 793 (1997)
.............................................................................................20
Vance v. Bradley,
440 U.S. 93 (1979)
.........................................................................................20,
21
Washington v. Glucksberg,
521 U.S. 702 (1997)
.................................................................................10,
11, 14
Washington v. Seattle School District No. 1,
458 U.S. 457 (1982)
...............................................................................................6
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989)
..............................................................................5
Wright v. Lane County District Court,
647 F.2d 940 (9th Cir. 1981)
..................................................................................3
Zablocki v. Redhail,
434 U.S. 374 (1978)
.......................................................................................12,
13
Constitutional Provisions:
Arizona Constitutional Article XXX, 1
..........................................................................5
Statutes:
Arizona Revised Statute 25-101
...................................................................................15
Arizona Revised Statute 25-102
...................................................................................15
Arizona Revised Statute 25-112
...................................................................................15
Rules:
Federal Rule of Civil Procedure 56
...................................................................................1
Local Rule 56.1
.................................................................................................................1
Orders:
Herbert v. Kitchen,
134 S. Ct. 893 (2014)
..........................................................................................30
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Latta v. Otter,
No. 14-35420 (9th Cir. May 20, 2014)
................................................................30
McQuigg v. Bostic,
No. 14A196, 2014 WL 4096232 (U.S. Aug. 20, 2014)
.......................................30
Other Authorities:
1 William Blackstone, Commentaries *435
..............................................................18,
19
52 American Jurisprudence 2dMarriage 66 (2014)
....................................................14
Jessica Bennett, Polyamory: The Next Sexual Revolution?,
Newsweek,
Jul. 28, 2009
...........................................................................................................5
Jurisdictional Statement,Baker v. Nelson, 409 U.S. 810 (1972)
(No. 71-1027) ......... 2, 3
Blacks Law Dictionary (8th ed. 2004)
...........................................................................12
Robert P. George et al., What is Marriage?(2012)
..................................... 23, 24, 25, 26
Norval D. Glenn, The Struggle For Same-Sex Marriage, 41 Socy 25
(2004) .........23, 24
William J. Goode, World Changes in Divorce Patterns(1993)
.....................................27
Loren D. Marks, Same-sex Parenting and Childrens Outcomes: A
Closer
Examination of the American Psychological Associations Brief
on
Lesbian and Gay Parenting, 41 Social Science Research 735 (2012)
.................19
Joseph Raz,Ethics in the Public Domain(1994)
............................................................23
Restatement (Second) of Conflict of Laws 283 (1971)
................................................14
Julien O. Teitler et al.,Effects of Welfare Participation on
Marriage,
71 J. Marriage & Fam. 878 (2009)
.......................................................................25
Transcript of Oral Argument,Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) (No. 12-144)
...................................................................12
United Nations Convention on the Rights of the Child, G.A. Res.
44/25,art. 7, 1 (Nov. 20, 1989)
....................................................................................17
Judith S. Wallerstein et al., The Unexpected Legacy of Divorce:
The 25
Year Landmark Study(2000)
...............................................................................27
Noah Webster,An American Dictionary of the English Language(1st
ed. 1828) .........12
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28
Witherspoon Institute,Marriage and the Public Good: Ten
Principles(2008)
......................................................................................23,
24, 25
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Pursuant to Federal Rule of Civil Procedure 56 and Local Rule
56.1, Defendants
move the Court for an order granting summary judgment in their
favor and dismissing all
claims raised in Plaintiffs Second Amended Complaint (Doc. No.
50). Alternatively, if
the Court grants summary judgment in Plaintiffs favor,
Defendants request that the
Court stay its judgment pending appeal.
Introduction
By history and tradition the definition and regulation of
marriage . . . has been
treated as being within the authority and realm of the separate
States. United States v.
Windsor, 133 S. Ct. 2675, 268990 (2013). Since its days as a
territory, Arizona (together
with the rest of Western Civilization) has defined marriage as a
relationship between a
man and woman. United States v. Tenney, 11 P. 472, 477 (1886);
see alsoForsythe v.
Paschal, 271 P. 865, 866 (Ariz. 1928) (Marriage differs from
ordinary contracts, in that
it can only exist where one man and one woman are legally united
for life, whereas
ordinary civil contracts may exist between two or more of either
or both sexes for any
stipulated time.). Indeed, in Arizona, marriage between a man
and a woman has been
essential to the very definition of that term and to its role
and function throughout . . .
history.Windsor, 133 S. Ct. at 2689.
As a public institution of utmost importance in Arizona,
marriages role and
function is to channel the presumptive procreative potential of
man-woman relationships
into committed unions in order to link children to both their
mother and their father.
Arizonas principal interest in the marriage status is the
protection of . . . minor children.
The whole history of our legislation in Arizona, as well as
elsewhere, shows this to be
true. Forsythe, 271 P. at 867. Thus, this State regulates
man-woman relationships
through the institution of marriage because those relationships
are biologically and
sociologically unique and because they implicate state interests
that no other relationships
do.
Recently, the People throughout the various States have begun an
earnest public
discussion about the meaning, purpose, and future of marriage.
Some now seek to
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redefine marriage from a gendered to a genderless institution,
while many others,
including the People of Arizona, legitimately believe that such
a change would obscure
marriages animating purpose and undermine its social
utility.
So far, the States have reached differing decisions on this
important question. Yet
Plaintiffs, discontented with the policy decision of Arizonans,
argue that the public
debate about the meaning, purpose, and future of marriage was
and is meaningless. They
claim that the issue was taken out of the Peoples hands when the
Fourteenth Amendment
was ratified, that the Constitution itself defines marriage as a
genderless institution, and
that the People have no say in deciding the weighty social,
philosophical, political, and
legal issues that this public debate implicates.
But Plaintiffs are mistaken. The Constitution has not removed
this question from
the People. It has not settled this critical social-policy issue
entrusted to the States. And
[i]t is demeaning to the democratic process to presume, as
Plaintiffs do, that the voters
are not capable of deciding an issue of this sensitivity on
decent and rational grounds.
Schuette v. BAMN, 134 S. Ct. 1623, 1637 (2014). This Court
should thus uphold the
Peoples decision to preserve marriage as a man-woman union.
Argument
I.
The Supreme CourtsBakerDecision Forecloses Plaintiffs
Claims.
InBaker v. Nelson, 409 U.S. 810 (1972), the Supreme Court
decided the precise
legal claims presented here. The petitioners inBakerappealed the
Minnesota Supreme
Courts decision holding that its States marriage laws, which
understood marriage as a
man-woman union, did not violate the Fourteenth Amendments Due
Process or Equal
Protection Clause.Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn.
1971). In the
jurisdictional statement that they filed with the United States
Supreme Court, theBaker
petitioners contended that Minnesotas man-woman marriage
definition deprive[d]
[them] of their liberty to marry and of their property without
due process of law under the
Fourteenth Amendment and that those laws violate[d] their rights
under the equal
protection clause of the Fourteenth Amendment. Jurisdictional
Statement at 3,Baker v.
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Nelson, 409 U.S. 810 (1972) (No. 71-1027) (Dfs. Ex. 66). The
Supreme Court dismissed
the appeal for want of a substantial federal question.Baker, 409
U.S. at 810.
Bakerestablishes that neither the Due Process Clause nor the
Equal Protection
Clause bars States from maintaining marriage as a man-woman
union because a Supreme
Court summary dismissal is a ruling on the merits and lower
courts are not free to
disregard [it].Hicks v. Miranda, 422 U.S. 332, 344 (1975).
Summary dismissals thus
prevent lower courts from coming to opposite conclusions on the
precise issues
presented in those cases.Mandel v. Bradley, 432 U.S. 173, 176
(1977) (per curiam). The
precedential value of a dismissal for want of a substantial
federal question extends
beyond the facts of the particular case to all similar cases.
Wright v. Lane Cnty. Dist.
Court, 647 F.2d 940, 941 (9th Cir. 1981) (per curiam).
Plaintiffs fail to even mention, much less distinguish, this
controlling precedent.
Although some courts (notincluding the Ninth Circuit) have
wrongly concluded that
Bakers binding force has been displaced by doctrinal
developments, whatever might
be the proper interpretation of the doctrinal developments
dicta, which the Supreme
Court stated (though did not apply) only once, seeHicks, 422
U.S. at 344, it cannot mean
that a lower court is free to depart from directly on-point
precedent that has never been
questioned by the Supreme Court itself. As the Supreme Court has
made clear, [i]f a
precedent of th[e] Court has direct application in a case, yet
appears to rest on reasons
rejected in some other line of decisions, the [lower court]
should follow the case which
directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own
decisions.Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484
(1989).
In its opinion granting a temporary restraining order in this
case, this Court
indicated thatRomer v. Evans, 517 U.S. 620 (1996),Lawrence v.
Texas, 539 U.S. 558
(2003), and Windsorhave shown thatBakerwas wrongly decided.
SeeOrder Granting
Temporary Restraining Order at 4 (ECF No. 75). But those three
cases cannot bear the
weight of overrulingBaker. First,Romerinvolved a law that was
unprecedented in our
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man-woman definition of marriage does not. That definition
distinguishes between man-
woman couples and all other relationships (including same-sex
couples and polyamorous
relationships). It does not explicitly classify persons based on
their sexual orientation.1
Plaintiffs baldly allege sexual-orientation discrimination
without pointing to any
actual language or classification within the challenged laws.
Pls. Mem. at 27.2This is not
surprising because Arizonas marriage laws are facially neutral
with respect to sexual
orientation. Moreover, Plaintiffs claim that the States
man-woman marriage laws do[]
not reach anyone other than same-sex couples, Pls. Mem. at 28,
is also misplaced. For
when the marriage laws recognize only the union of one man and
one woman as a
marriage, Ariz. Const. Art. XXX, 1, they surely exclude all
polyamorous relationships
throughout the State.3
1Plaintiffs assertion that federal courts en masse have declared
sexual orientation a
suspect or quasi-suspect classification for all purposes is
misleading. SeePls. Mem. at 28
n.11. The majority of federal appellate courts to address that
issue have concluded that
sexual orientation is not a suspect classification. See, e.g.,
Cook v. Gates, 528 F.3d 42, 61(1st Cir. 2008); Thomasson v. Perry,
80 F.3d 915, 928 (4th Cir. 1996) (en banc);Johnson
v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Scarbrough v.
Morgan Cnty. Bd. of Educ.,
470 F.3d 250, 261 (6th Cir. 2006); Citizens for Equal Prot. v.
Bruning, 455 F.3d 859,
866-67 (8th Cir. 2006); Price-Cornelison v. Brooks, 524 F.3d
1103, 1114 (10th Cir.
2008);Lofton v. Secy of the Dept of Children & Family
Servs., 358 F.3d 804, 818 (11th
Cir. 2004); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir.
1994) (en banc); Woodward
v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); see also
Romer, 517 U.S. at 631-
35 (applying rational-basis review to classification based on
sexual orientation).2This Court seemingly adopted Plaintiffs
argument when it stated that the reason why
couples such as [Plaintiffs] may not marry is precisely because
of their sexualorientation. Order Granting Temporary Restraining
Order at 6. For the reasons
explained above, this Courts preliminary assessment of this
argument was erroneous.3Polygamy, a social arrangement where one
man may marry multiple wives, is not the
concept referred to here. Instead, the reference is to
polyamory, a romantic group
relationship involving whatever gender composition the
participants find agreeable.
Researchers . . . estimate that openly polyamorous families in
the United States number
more than half a million[.] Jessica Bennett, Polyamory: The Next
Sexual Revolution?,
Newsweek, Jul. 28, 2009, available
athttp://www.newsweek.com/polyamory-next-
sexual-revolution-82053.
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Second, the state action at issue in SmithKlineintended to
discriminate against
gays and lesbians. 740 F.3d at 477-78 (finding intentional
discrimination). Here,
however, Arizonas man-woman definition of marriage, which
predates the States
inception, seeDSOF 5, is not born of any intent to discriminate
against gays and
lesbians. Not a shred of evidence suggests that Arizonans
recognized man-woman
marriage more than a hundred years ago for the purpose of
disadvantaging gays and
lesbians. By focusing their attention only on individual
statements relating to the laws
enacted in the last two decades (which did not change the States
definition of marriage),
Plaintiffs miss the mark, for even if the State had not approved
any of those enactments,
marriage in this State would nevertheless be a man-woman union.
SeeDSOF 5-6.
Moreover, Plaintiffs argument ignores, as mentioned above, that
the States man-woman
marriage definition excludes polyamorous relationships just as
it excludes same-sex
relationships.
When issuing the temporary-restraining order in this case, this
Court indicated that
so long as the challenged laws do discriminate, inten[t] to
discriminate is not a
relevant consideration. SeeOrder Granting Temporary Restraining
Order at 6. Yet intent
to discriminate is an essential element of Plaintiffs
equal-protection claim. [P]urposeful
discriminationnot disparate impactis the condition that offends
the Constitution.
Pers. Admr of Mass. v. Feeney, 442 U.S. 256, 274 (1979)
(quotation marks omitted).
Absent a showing of purposeful discrimination, uneven effects
upon particular groups
within a class are ordinarily of no constitutional concern.Id.at
272; see alsoCity of
Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188,
194 (2003) (We
have made clear that proof of . . . discriminatory intent or
purpose is required to show a
violation of the Equal Protection Clause. (internal quotation
marks and alterations
omitted)); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457,
484-85 (1982) ([W]hen
facially neutral legislation is subjected toequal protection
attack, an inquiry into intent is
necessary.).
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Third, because same-sex couples have distinguishing
characteristics relevant to
interests the State has the authority to implement,
constitutional analysis requires only
a rational means to serve a legitimate end. City of Cleburne v.
Cleburne Living Ctr.,
Inc., 473 U.S. 432, 441-42 (1985). Arizonas marital definition
is based on an undeniable
biological difference between man-woman couples and same-sex
couplesnamely, the
natural capacity to create children and to provide those
children with both biological
parents. Because this biological difference relates directly to
societys interests in
regulating marriage, seeDSOF 1-4, the States definition of
marriage is subject only to
rational-basis review. Cleburne, 473 U.S. at 441-42. Using this
analysis, New Yorks
highest court conclude[d] that rational basis scrutiny is
appropriate when review[ing]
legislation governing marriage and family relationships because
[a] persons preference
for the sort of sexual activity that cannot lead to the birth of
children is relevant to the
States interest in fostering relationships that will serve
children best.Hernandez v.
Robles, 855 N.E.2d 1, 11 (N.Y. 2006); see alsoBruning, 455 F.3d
at 866-67. That court
applied rational-basis review to the man-woman marriage laws
while acknowledging that
sexual-orientation discrimination might require heightened
scrutiny outside the context
of marriage and family relationships.Hernandez, 855 N.E.2d at
11.4
This Court previously rejected this argument as circular.
SeeOrder Granting
Temporary Restraining Order at 7. Notwithstanding that belief,
Supreme Court precedent
compels this analysis. As the Court has stated:
[W]here individuals in the group affected by a law have
distinguishing
characteristics relevant to interests the State has the
authority to implement,
the courts have been very reluctant, as they should be in our
federal system
and with our respect for the separation of powers, to closely
scrutinizelegislative choices as to whether, how, and to what
extent those interests
4Plaintiffs claim that they are similarly situated to man-woman
married couples for
all legally relevant purposes, Pls. Mem. at 27, is not
supportable. In making that claim,
Plaintiffs ignore the States overriding purpose of marriageto
channel the procreative
potential of man-woman couples into state-regulated
relationships in order to increase the
chances that children will be raised by both their mother and
their father. See infra
Section (II)(B)(1)(a).
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should be pursued. In such cases, the Equal Protection Clause
requires only
a rational means to serve a legitimate end.
Cleburne, 473 U.S. at 441-42. Because same-sex couples have
distinguishing
characteristics relevant to interests the State has the
authority to implement, and because
those distinguishing characteristics relate directly to the
States overriding interest in
marriage, governing precedent requires this Court to apply
rational-basis review.
Fourth, SmithKlinepremised its new equal-protection standard
entirely on
Windsor. See740 F.3d at 480 (noting that Windsoris dispositive
of the question of the
appropriate level of scrutiny). Thus, SmithKlinecan reach no
further than Windsorin
demanding heightened scrutiny. Windsor, however, did not
categorically establish that all
laws that disparately impact same-sex couples warrant heightened
scrutiny. Rather, it
premised its careful consideration analysis on its conclusion
that the federal
government had unusually depart[ed] from [its] history and
tradition of reliance on state
law to define marriage. 133 S. Ct. at 2692. Because Arizonas
man-woman marital
definition neither departs from history nor exhibits any other
unusual characteristic,
Windsors predicate for applying careful consideration analysis
is absent here.
2. Arizonas Man-Woman Marriage Definition Does Not
Impermissibly Discriminate Based on Sex.
The Supreme Courts equal-protection cases have found
impermissible sex
discrimination only when a law treats members of one sex more
favorably than members
of the other sex. See, e.g., United States v. Virginia, 518 U.S.
515, 519 (1996) (excluding
women from military college);Miss. Univ. for Women v. Hogan, 458
U.S. 718, 733
(1982) (excluding men from attending nursing school); Craig v.
Boren, 429 U.S. 190,
191-92 (1976) (allowing women to buy beer at a younger age than
men); Frontiero v.
Richardson, 411 U.S. 677, 678-79 (1973) (imposing a higher
burden on women than men
to establish spousal dependency);Reed v. Reed, 404 U.S. 71,
71-74 (1971) (affording an
automatic preference for men over women when administering
estates). Thus, the proper
question when assessing a constitutional sex-discrimination
claim is whether men and
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women are treated differently or subject to special denigration
because of their sex. See
Virginia, 518 U.S. at 532-34. If the rule were otherwise, the
government would create a
constitutional crisis each time it offered sex-specific
restrooms, locker rooms, living
facilities, schools, or sports teams. But acknowledging the
biological distinction between
men and women is not discrimination when both men and women have
the same benefits
and restrictions.Id.
Because man-woman marriage laws do not disadvantage either sex,
Plaintiffs
sex-discrimination argument falls short.5Even though Plaintiffs
sex-discrimination
argument has been raised in the many similar cases litigated
throughout the country, no
appellate court, state or federal, except for a two-justice
plurality inBaehr v. Lewin, 852
P.2d 44, 59-63 (Haw. 1993), has adopted it. See, e.g.,In re
Marriage Cases, 183 P.3d
384, 439 (Cal. 2008), superseded by constitutional amendment as
noted inStrauss v.
Horton, 207 P.3d 48, 59 (Cal. 2009); Conaway v. Deane, 932 A.2d
571, 598-99 (Md.
2007);Baker, 191 N.W.2d at 187;Hernandez, 855 N.E.2d at
10-11;Baker v. State, 744
A.2d 864, 880 n.13 (Vt. 1999);Andersen v. King Cnty., 138 P.3d
963, 988 (Wash. 2006)
(plurality); Singer v. Hara, 522 P.2d 1187, 1192 (Wash. Ct. App.
1974).
Plaintiffs reliance onLoving v. Virginia, 388 U.S. 1 (1967), a
race-discrimination
case, is misplaced. SeePls. Mem. at 30 n.12. Contrary to
Plaintiffs claim, theLoving
Court concluded that Virginias miscegenation law was motivated
by racial
discriminationthe invidious desire, as the Court said, to
maintain White Supremacy.
388 U.S. at 7, 11. Here, however, Plaintiffs have cited no
evidence, nor could they,
establishing that Arizonas man-woman marriage definition was
adopted to degrade men
or to disadvantage women. WhileLovingobserved that equal
application does not
immunize a racially discriminatory law from strict scrutiny,
id.at 9, the Supreme Court
has never extended that principle to sex discrimination. Rather,
the Court has declined to
5The State has not, for example, permitted men to marry men
while forbidding women to
marry women. That would constitute sex discrimination.
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equat[e] gender classifications . . . to classifications based
on race and has carefully
inspected under heightened scrutiny only official action that
closes a dooror denies
opportunityto women (or to men). Virginia, 518 U.S. at 532
(emphasis added). So for
this Court to find sex discrimination here would be an
unprecedented expansion of the
Supreme Courts jurisprudence on that issue.
Moreover, Plaintiffs discussion of sex stereotypes is wholly
unsupported. See
Pls. Mem. at 30. By seeking to channel the procreative potential
of man-woman
relationships into state-regulated marital unions, Arizona
regulates based on biologynot
based on overbroad generalizations about the different talents,
capacities, or
preferences of males and females. Pls. Mem. at 30 (quoting
Virginia, 518 U.S. at 533).
The Constitution does not prohibit States from recognizing
gender-based biological
differences. SeeVirginia, 518 U.S. at 533 (acknowledging that
[t]he two sexes are not
fungible (citations and quotation marks omitted)).
3.
Arizonas Man-Woman Marriage Definition Does Not Infringe
Fundamental Rights.
In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme
Court outlined
the analysis for ascertaining whether an asserted right is
fundamental.Id.at 720-21. The
Court requires a careful description of the asserted fundamental
liberty interest, id. at
721, and demands that the carefully described right must be
objectively, deeply rooted
in this Nations history and tradition, id. at 720-21.
The carefully described right at issue here is the purported
right to marry a person
of the same sex. The Nations history and tradition belie any
assertion that such a right is
deeply rooted. As the Supreme Court recognized in Windsor, until
recent years, many
citizens had not even considered the possibility that two
persons of the same sex might
[enter] . . . [a] lawful marriage. For marriage between a man
and a woman no doubt had
been . . . essential to the very definition of that term and to
its role and function
throughout the history of civilization. 133 S. Ct. at 2689.
Indeed, marriage between two
people of the same sex was unknown in this country before 2004,
seeGoodridge v. Dept
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Yet inZablocki v. Redhail, 434 U.S. 374, 386 (1978), the Supreme
Court disclaimed the
notion that the fundamental right to marry subject[s] to
rigorous scrutiny every state
regulation which relates in any way to the incidents of or
prerequisites for marriage.Id.
Expanding the fundamental right to marry beyond its historical
scope would thus threaten
to turn on its head the plenary authority that States have
exercised in the area of domestic
regulations since the Nations beginning. Windsor, 133 S. Ct. at
2691. Indeed, under
Plaintiffs theory, unless a State can satisfy the stringent
requirements of strict scrutiny, it
must recognize all committed relationships (including
polygamous, polyamorous, and
incestuous) as marriages. SeeTranscript of Oral Argument at
46-47,Hollingsworth v.
Perry,
133 S. Ct. 2652 (2013) (No. 12-144) (Sotomayor, J.) (wondering
what State
restrictions could ever exist on marriage if courts adopt a
broad fundamental right to
marry). But if States must recognize all relationships as
marriages, their purpose for
having a marriage policy in the first placeto recognize and
subsidize particular
relationships because of the societal interests that they
servewould be eradicated. These
far-reaching effects of Plaintiffs fundamental-rights argument
illustrate its foundational
flaws.
Third, the established right to marry has a discernible meaning,
and Plaintiffs
cannot credibly claim that the word marry as used by the Supreme
Court in its right-to-
marry cases referred to any relationship other than the union of
a man and a woman.
Until a short decade ago, the word marry exclusively meant the
union . . . of one man
and one woman.Murphy v. Ramsey, 114 U.S. 15, 45 (1885); see
alsoNoah Webster,An
American Dictionary of the English Language(1st ed. 1828)
(defining marriage as the
union of a man and woman); Blacks Law Dictionary 992 (8th ed.
2004) (defining
marriage as [t]he legal union of a couple as husband and wife).
While Plaintiffs argue
that the constitutional right to marry must be defined by the
attributes of the right itself,
Pls. Mem. at 20, they overlook that an essential attribute of
the right has always included
its man-woman feature because the word itself was a gendered
term. Indeed, as Windsor
recognized, marriage between a man and a woman no doubt had been
thought of . . . as
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essential to the very definition of that term . . . throughout
the history of civilization. 133
S. Ct. at 2689.
Moreover, the Supreme Courts right-to-marry
casesLoving,Zablocki, and
Turner v. Safley, 482 U.S. 78 (1987)all involved one person
marrying another person
of the opposite sex. And the Supreme Courts discussion of
marriage in those cases
specifically, the repeated references to procreation (both
implicit and explicit)plainly
demonstrates that the right to marry is the right to enter into
a gendered relationship (the
only type of relationship capable of producing children).
SeeLoving, 388 U.S. at 12
(discussing the link between marriage and our very existence and
survival);Zablocki,
434 U.S. at 383-84 (same); id.at 384 (discussing the right to
marry, establish a home
and bring up children (internal quotation marks omitted)); id.at
386 (discussing the
plaintiffs decision to marry and raise the child in a
traditional family setting); Turner,
482 U.S. at 96 (discussing the link between marriage and
consummat[ion] and the link
between marriage and the legitimation of children). It thus
cannot be doubted that the
Courts right-to-marry cases understood the word marriage as
referring to a man-
woman union. Plaintiffs, therefore, attempt to make the word
marry mean something
that it could not have meant when the Supreme Court used it in
the right-to-marry cases;
they, in short, engage in linguistic manipulation.Bostic v.
Schaefer, No. 14-1167, 2014
WL 3702493, at *18 (4th Cir. July 28, 2014) (Niemeyer, J.,
dissenting); see also
Robicheaux v. Caldwell, Nos. 13-5090, 14-97, 14-327, 2014 WL
4347099, at *9-10 (E.D.
La. Sept. 3, 2014).
In light of the foregoing, it is not surprising that the
majority of appellate courts
that have faced this fundamental-right question, under a state
constitution or the Federal
Constitution, have concluded that there is no fundamental right
to marry a person of the
same sex. See, e.g., Standhardt v. Superior Court, 77 P.3d 451,
460 (Ariz. Ct. App.
2003);Baehr, 852 P.2d at 57;Morrison v. Sadler, 821 N.E.2d 15,
32-34 (Ind. Ct. App.
2005);Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973);
Conaway, 932 A.2d at 624-
29;Baker, 191 N.W.2d at 186;Lewis v. Harris, 908 A.2d 196, 211
(N.J. 2006);
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Hernandez, 855 N.E.2d at 9-10;In re Marriage of J.B. & H.B.,
326 S.W.3d 654, 675-76
(Tex. Ct. App. 2010);Andersen, 138 P.3d at 976-79.6
4.
Arizonas Out-of-State-Marriage-Recognition Policy Is Not
Subject to Heightened Scrutiny.
In attacking Plaintiffs out-of-state-marriage-recognition
policy, Plaintiffs attempt
to invoke heightened scrutiny by arguing that they have a
fundamental right to remain
married. Pls. Mem. at 22-24. Yet that argument lacks merit for
all the reasons that
Plaintiffs fundamental-right-to-marry argument does.
SeesupraSection (II)(A)(3).
Plaintiffs attempt to portray the States marriage recognition
policy as inconsistent
with history and tradition; they specifically reference [t]he
expectation that a marriage,
once entered into, will be respected throughout the land. Pls.
Mem. at 22 n.8. But
Plaintiffs overlook the well-established rule that permits a
State to decline to recognize an
out-of-state marriage if recognizing that marriage would be
contrary to the public policy
of that state. 52 Am. Jur. 2d Marriage 66; see alsoRestatement
(Second) of Conflict of
Laws 283 (1971) (A marriage which satisfies the requirements of
the state where the
marriage was contracted will everywhere be recognized as valid
unless it violates the
strong public policy of another state.).
It is thus not unusual or ahistorical for a State to decline to
recognize a couples
out-of-state marriage. Comity and full-faith-and-credit
principles have always permitted
Arizona, like other States, to decline to recognize [m]arriages
performed outside the
6Plaintiffs vaguely assert that Arizonas man-woman marriage
definition violates
protected liberty interests in association, integrity, autonomy,
and self-definition. Pls.Mem. at 24-25 (capitalization and bolding
omitted). Plaintiffs rely principally on
Lawrencefor this claim. ButLawrencewhich struck down a criminal
statute that
prohibited the most private human conduct, sexual behavior, . .
. in the most private of
places, the home, 539 U.S. at 567explicitly stated that it did
not involve, and thus
did not decide, whether the government must give formal
recognition to any relationship
that homosexual persons seek to enter, id.at 578. Moreover, the
Supreme Court has
rejected the idea that constitutional rights may be simply
deduced from abstract concepts
of personal autonomy. Glucksberg, 521 U.S. at 725. Rather, those
rights must be
grounded in this Nations history and constitutional
traditions.Id.
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state which offend [its] strong public policy.In re Mortensons
Estate, 316 P.2d 1106,
1108 (Ariz. 1957); see alsoCook v. Cook, 104 P.3d 857, 860
(Ariz. Ct. App. 2005) (Just
as enduring as the general rule, however, has been Arizonas
exception to that rule;
namely, that thepowerto define a valid marriage is vested in
this states legislature and
not in the legislature (or judiciary) of another state nor in
the judiciary of this state.);
Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998) (The Full
Faith and Credit
Clause does not compel a state to substitute the statutes of
other states for its own statutes
dealing with a subject matter concerning which it is competent
to legislate. (internal
quotation marks omitted)).
Moreover, by declining to recognize Plaintiffs out-of-state
marriage licenses, the
State has not treated them differently than any man-woman couple
who sought to evade
Arizonas marriage law by marrying in another State. The State
prohibits allpersons
residing in this state from evad[ing] the laws of this state
relating to marriage by going
to another state or country for solemnization of the marriage.
Ariz. Rev. Stat. 25-
112(C); see also DSOF 11. Yet Plaintiffs declarations indicate
that they violated this
statutory provision. DSOF 12. Plaintiffs are thus treated no
differently than underage,
seeAriz. Rev. Stat. 25-102(A), or closely related man-woman
couples, seeAriz. Rev.
Stat. 25-101(A), who reside in Arizona and similarly seek to
evade the States marriage
laws.
Finally, the implications of Plaintiffs right to remain married
arguments are
untenable. Requiring a State to recognize a relationship as a
marriage simply because
another State does would effectively nationalize the
domestic-relations policy of the most
inventive State. That would not only contravene the
well-established comity and full-
faith-and-credit principles discussed above, it would also
conflict with Windsors
acknowledgment that the Constitution permits variation between
States domestic-
relations policies concerning which couples may marry. See133 S.
Ct. at 2691 (noting
that States may differ on permissible degree[s] of consanguinity
and minimum age[s]
for marriage).
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B.
The Man-Woman Marriage Definition Satisfies Constitutional
Review.
Arizonas man-woman marriage definition satisfies rational-basis
review. That
level of review constitutes a paradigm of judicial restraint,
under which courts have no
license . . . to judge the wisdom, fairness, or logic of
legislative choices. FCC v. Beach
Commcns, Inc., 508 U.S. 307, 313-14 (1993). A statutory
classification fails rational-
basis review only when it rests on grounds wholly irrelevant to
the achievement of the
States objective.Heller v. Doe, 509 U.S. 312, 324 (1993)
(internal quotation marks
omitted); see alsoDandridge v. Williams, 397 U.S. 471, 485
(1970) (noting that the
challenged classification need not be made with mathematical
nicety). Thus, the man-
woman marriage definition must be upheld . . . if there is any
reasonably conceivable
state of facts that could provide a rational basis for
it.Heller, 509 U.S. at 320. And
because marriage has always been, in our federal system, the
predominant concern of
state government . . . rational-basis review must be
particularly deferential in this
context.Bruning, 455 F.3d at 867; see also Windsor, 133 S. Ct.
at 2691 (stating that
marriage is an area that has long been regarded as a virtually
exclusive province of the
States).
The States definition of marriage also withstands heightened
scrutiny. To satisfy
that standard, the State must show that the challenged
classification serves important
governmental objectives and that the . . . means employed are
substantially related to the
achievement of those objectives. Virginia, 518 U.S. at 533
(internal quotation marks and
alterations omitted). Arizonas man-woman marriage definition and
the laws reaffirming
it are substantially related to at least three compelling
objectives: (1) connecting children
to both their biological mother and their biological father; (2)
avoiding the adverse
consequences likely to accompany the redefinition of marriage;
and (3) protecting the
Peoples fundamental right to define marriage for their own
community. These interests
are addressed in turn.
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1.
Arizonas Man-Woman Marriage Definition Furthers the
States Compelling Interest in Connecting Children to Both
Their Biological Mother and Their Biological Father.
a.
The State Has a Compelling Interest in Connecting
Children to Both of Their Biological Parents.
The historical record leaves no doubt that the State recognizes
marriage for the
purpose of providing stability to the types of relationships
that are presumptively capable
of naturally producing children and affording them both of their
biological parents. See
DSOF 1-4. Every person has a mother and father, and the State
has a compelling
interest in encouraging arrangements where children are more
likely to be raised by both
of those parents. This interest is among the purposes for
Arizonas man-woman marriage
definition. SeeDSOF 8-9, 28.
Underscoring the strength of this interest, the Supreme Court
has recognized a
constitutional liberty interest in the natural family, a
paramount interest having its
source . . . in intrinsic human rights. Smith v. Org. of Foster
Families for Equal. &
Reform, 431 U.S. 816, 845 (1977). That right belongs not only to
biological parents, id.at
846, it also vests in each child, seeAdoptive Couple v. Baby
Girl, 133 S. Ct. 2552, 2582
(2013) (Sotomayor, J., dissenting) ([C]hildren have a reciprocal
interest in knowing their
biological parents.);Bowen v. Gilliard, 483 U.S. 587, 614 (1987)
(Brennan, J.,
dissenting) (acknowledging that children have a fundamental
interest in sustaining a
relationship with their mother and father); United Nations
Convention on the Rights
of the Child, G.A. Res. 44/25, art. 7, 1 (Nov. 20, 1989),
available athttp://www.ohchr.
org/en/professionalinterest/pages/crc.aspx (The child . . .
shall have . . . , as far as
possible, the right to know and be cared for by his or her
parents.). Arizona law
additionally acknowledges that the biological connection between
parent and child is
itself a relationship that creates a protected [legal] interest.
Soos v. Superior Court, 897
P.2d 1356, 1361 (Ariz. Ct. App. 1994).
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[T]he biological bond between a parent and a child is a strong
foundation for a
stable and caring relationship.Adoptive Couple, 133 S. Ct. at
2582 (Sotomayor, J.,
dissenting). The law thus reasonably presumes that these natural
bonds of affection lead
parents to act in the best interests of their children. Parham
v. J.R., 442 U.S. 584, 602
(1979); accordTroxel v. Granville, 530 U.S. 57, 68 (2000); see
also1 William
Blackstone, Commentaries*435 (Dfs. Ex. 1) (recognizing the
insuperable degree of
affection for ones natural children implant[ed] in the breast of
every parent).
Social science has shown this presumption to be well founded.
Indeed, the most
reliable studies on alternative family structures show that, in
general, the optimal
childrearing environment is a home headed by a married
biological mother and biological
father. DSOF 33. Further confirming the primacy of the
biological home is the body of
scholarship demonstrating that, in general, children raised in
stepfamilies do not fare as
well as children raised by their biological parents in an intact
family. DSOF 34.
Moreover, every set of biological parents provides their
children with a parent of each
sex, and much social science indicates that
gender-differentiated parenting is important
for human development. DSOF at 35-36; see alsoBowen, 483 U.S. at
614 (Brennan,
J., dissenting) ([T]he optimal situation for the child is to
have both an involved mother
and an involved father).
In addition to tangible deficiencies in development, children
deprived of their
substantial interest in know[ing] [their] natural parents, as
the Supreme Court has
recognized, experience a loss[] [that] cannot be measured, one
that may well be far-
reaching. Santosky v. Kramer, 455 U.S. 745, 760 n.11 (1982).
This observation is
supported by studies showing that [y]oung adults conceived
through sperm donation
(who thus lack a connection to their biological father)
experience profound struggles
with their origins and identities. DSOF 37.
The States interest in encouraging biological parents to stay
together and jointly
raise their children is particularly weighty when the parents
did not intend to create the
children in the first place. That situation is quite typical,
given that unplanned
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pregnancies account for nearly half of all births in the United
States. DSOF 40. Yet
unintended births out of wedlock are associated with negative
outcomes for children
because those children are often raised outside stable family
units headed by both their
mother and their father. DSOF 41-42.
Children thus have weighty tangible and intangible interests in
being raised by
their own mother and father in a stable home. But they, as a
class of citizens unable to
advocate for themselves, must depend on the State to protect
those interests for them.
And Arizonas man-woman marriage definition does just that.
Plaintiffs miss the mark when they claim that children raised by
same-sex
couples are just as well-adjusted as those raised by
heterosexual couples. Pls. Mem. at
36. Even if that contested point were true,7that does not
undermine the research
indicating that, on average, children develop best when raised
by their biologicalmothers
and fathers in a stable family unit, seeDSOF 33, and it does not
displace the centuries-
old legal presumption in favor of natural parents, see, e.g.,
Parham, 442 U.S. at 602; 1
William Blackstone, Commentaries *435 (Dfs. Ex. 1). Nor does it
refute the importance
of protecting childrens intangible interests in knowing their
biological parents.
Santosky, 455 U.S. at 760 n.11;Adoptive Couple, 133 S. Ct. at
2582 (Sotomayor, J.,
dissenting); see alsoDSOF 37.
b.
The Man-Woman Marriage Definition Is Substantially
Related to the States Compelling Interest in Connecting
Children to Both of Their Biological Parents.
The State establishes the requisite relationship between its
interests and the means
chosen to achieve those interests when the inclusion of one
group promotes a legitimate
7It is reasonable to question, as many have, Plaintiffs claims
about same-sex parenting.
SeeLofton, 358 F.3d at 825; Amicus Brief of Professors of Social
Science at 2-3, Kitchen
v. Herbert, No. 13-4178 (10th Cir. Feb. 10, 2014) (Dfs. Ex. 22).
Most notably, the studies
that allegedly support Plaintiffs parenting claims exhibit
significant analytical
shortcomings, such as the use of small, non-random,
non-representative samples. See
Lofton, 358 F.3d at 825; Loren D. Marks, Same-sex Parenting and
Childrens Outcomes:
A Closer Examination of the American Psychological Associations
Brief on Lesbian and
Gay Parenting, 41 Social Science Research 735 (2012) (Dfs. Ex.
65).
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governmental purpose, and the addition of other groups would
not[.]Johnson v.
Robison, 415 U.S. 361, 383 (1974). Therefore, the relevant
inquiry here is not, as
Plaintiffs allege, whether excluding same-sex couples from
marriage furthers the States
interest in encouraging biological mothers and fathers to
jointly raise their children. See
Pls. Mem. at 35. Rather, the relevant question is whether an
opposite-sex definition of
marriage furthers legitimate interests that would not be
furthered, or furthered to the same
degree, by allowing same-sex couples to marry.Jackson v.
Abercrombie, 884 F. Supp.
2d 1065, 1107 (D. Haw. 2012); accordStandhardt, 77 P.3d at
463;Morrison, 821 N.E.2d
at 23, 29;Andersen, 138 P.3d at 984 (plurality). The propriety
of this analysis is
supported by the general principle that [t]he Constitution does
not require things which
are different in fact or opinion to be treated in law as though
they were the same. Vacco
v. Quill, 521 U.S. 793, 799 (1997) (internal quotation marks and
citation omitted).
Under this analysis, Arizonas man-woman marriage definition
plainly satisfies
constitutional review. Sexual relationships between men and
womenand only such
relationshipsnaturally produce children, and they often do so
unintentionally. See
DSOF 40. By granting recognition and support to man-woman
couples, marriage
generally makes those potentially procreative relationships more
stable and enduring, and
thus increases the likelihood that each child will be raised by
the man and woman whose
sexual union brought her into the world. DSOF 39.
Sexual relationships between individuals of the same sex, by
contrast, do not
provide children with both their mother and their father. Nor do
they risk unintentionally
creating children as the natural byproduct of their sexual
relationship. Same-sex couples
thus do not further societys compelling interest in connecting
children to both their
mother and their father like sexual relationships between men
and women do.
It is therefore constitutional for Arizona to maintain an
institution to address the
unique opportunities that the procreative potential of sexual
relationships between men
and women presents. See, e.g., Vance v. Bradley, 440 U.S. 93,
109 (1979) (stating that a
law may dr[aw] a line around those groups . . . thought most
generally pertinent to its
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objective);Johnson, 415 U.S. at 378 (stating that a
classification will be upheld if
characteristics peculiar to only one group rationally explain
the statutes different
treatment of the two groups). Consequently, the commonsense
distinction,Heller, 509
U.S. at 326, that Arizona law has always drawn between man-woman
couples and all
other relationships is neither surprising nor troublesome from a
constitutional
perspective.Nguyen v. INS, 533 U.S. 53, 63 (2001). That is why a
host of judicial
decisions, including a federal decision issued earlier this
month, have concluded that
laws defining marriage as the union of one man and one woman and
extending a variety
of benefits to married couples are rationally related to the
government interest[s] in
steering procreation into marriage and connecting children to
their biological parents.
Bruning, 455 F.3d at 867-68; see, e.g.,Robicheaux, 2014 WL
4347099, at *6
(Louisianas [man-woman marriage laws] are directly related to
achieving marriages
historically preeminent purpose of linking children to their
biological parents.);Jackson,
884 F. Supp. 2d at 1112-14; Standhardt, 77 P.3d at
461-64;Morrison, 821 N.E.2d at 23-
31; Conaway, 932 A.2d at 630-34;Baker, 191 N.W.2d at
186-87;Hernandez, 855 N.E.2d
at 7-8;In re Marriage of J.B. & H.B., 326 S.W.3d at
677-78;Andersen, 138 P.3d at 982-
85 (plurality); Singer, 522 P.2d at 1197.
Additionally, the man-woman definition of marriage satisfies
heightened scrutiny
because even under that more demanding standard, [t]he
Constitution requires that [a
State] treat similarly situated persons similarly, not that it
engage in gestures of
superficial equality.Rostker v. Goldberg, 453 U.S. 57, 79
(1981). To fail to
acknowledge even our most basic biological differences, like
those between same-sex
couples and man-woman couples, risks making the guarantee of
equal protection
superficial, and so disserving it.Nguyen, 533 U.S. at 73;
accordid.at 63 (upholding a
proof-of-citizenship law under heightened scrutiny because the
two classes at issue
[f]athers and motherswere not similarly situated with regard to
the proof of
biological parenthood);Michael M. v. Superior Court, 450 U.S.
464, 471 (1981)
(plurality) (upholding a statutory-rape law under heightened
scrutiny because young
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men and young women are not similarly situated with respect to
the problems and the
risks of sexual intercourse since [o]nly women may become
pregnant). Because man-
woman couples and same-sex couples are not similarly situated
with regard to the States
interest in connecting children to both biological parents, the
challenged marriage laws
withstand heightened scrutiny.
2. Arizonas Man-Woman Marriage Definition Avoids the Long-
Term Adverse Consequences that the State Could Logically
Project Would Accompany the Redefinition of Marriage.
The State may logically project that redefining marriage poses a
significant risk of
bringing about adverse social consequences over time. Recently,
when reviewing the
constitutionality of a voter-enacted measure, a plurality of the
Supreme Court, in an
opinion that Justice Kennedy authored, assume[d] the voters
concerns about the
potential adverse results that might result from failing to
enact the challenged law.
Schuette, 134 S. Ct. at 1638. The Court did not require the
State to prove that those
projected consequences would occur, but affirmed that [w]hether
those adverse results
would follow is, and should be, the subject of [ongoing
political] debate. Id.
Even under heightened scrutiny, courts must accord substantial
deference to the
[governments] predictive judgments. Turner Broad. Sys., Inc. v.
FCC, 520 U.S. 180,
195 (1997) (internal quotation marks omitted); see alsoGrutter
v. Bollinger, 539 U.S.
306, 328 (2003) (deferring to a public universitys judgment that
[racial] diversity [was]
essential to its educational mission). Sound policymaking often
requires [democratic
decisionmakers] to forecast future events and to anticipate the
likely impact of [those]
events based on deductions and inferences for which complete
empirical support may be
unavailable. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665
(1994) (plurality).
No one seriously disputes that legally redefining marriage as a
genderless
institution will have real-world consequences. Complex social
institutions like marriage
comprise a set of norms, rules, patterns, and expectations that
powerfully (albeit often
unconsciously) affect peoples choices, actions, and
perspectives. DSOF 43. Marriage
in particular is a pervasive and influential social institution
that entails a complex set of
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the socialization, development, and well being of children that
accompanies legal
advocacy for genderless marriage).
It is logical to project that conveying these messages would
adversely affect
fathers involvement in their childrens lives. Researchers have
observed that the culture
of fatherhood and the conduct of fathers change from decade to
decade as social and
political conditions change. DSOF 51. This has led many scholars
to surmise that
fathering is more sensitive than mothering to contextual
forces.Id.
Thus, as the State undermines the importance of fathers, it
would likely over time
weaken[] the societal norm that men should take responsibility
for the children they
beget, Witherspoon Institute, supra, at 18-19 (Dfs. Ex. 31), and
soften the social
pressures and lower the incentives . . . for husbands to stay
with their wives and
children, George, supra, at 8 (Dfs. Ex. 60). It would also
likely encourage mothers to
create or raise children apart from their fathers. In these
ways, genderless marriage would
directly undermine marriages purpose of encouraging fathers and
mothers to jointly raise
the children that they create, with the anticipated outcome that
more children would be
raised without their fathers.
The States concern is that those children would suffer. For
those who never know
their father, they will experience a loss[] [that] cannot be
measured, one that, as the
Supreme Court has recognized, may well be far-reaching.
Santosky, 455 U.S. at 760
n.11; see alsoDSOF 37 (discussing profound struggles with
[childrens] origins and
identities). And for those children who know their fathers but
are not raised by them,
they will experience increased hardships. As President Obama has
explained:
We know the statisticsthat children who grow up without a father
are fivetimes more likely to live in poverty and commit crime; nine
times more
likely to drop out of schools and twenty times more likely to
end up in
prison. They are more likely to have behavioral problems, or run
away from
home, or become teenage parents themselves. And the foundations
of our
community are weaker because of it.
DSOF 36; see alsoid.(citing many studies supporting President
Obamas statement).
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2. It is Logical to Project that Marriage Between Man-Woman
Couples
Having or Raising Children Will Decrease.Because procreation
necessarily requires the
involvement of two persons of different sexes, transforming
marriage into a genderless
(or same-sex) institution would undermine the intrinsic link
between marriage and
procreation. Witherspoon Institute, supra, at 18 (Dfs. Ex. 31).
That change would thus
promote the mistaken view that civil marriage has little to do
with procreation[.]
Goodridge, 798 N.E.2d at 1002 (Cordy, J., dissenting).
Because genderless marriage would undermine the link between
marriage and
procreation, the social connection between marriage and
procreation would wane over
time. As this occurs, the social expectation and pressure to
marry for man-woman
couples having or raising children would likely decrease
further. SeeGeorge, supra, at 62
(Dfs. Ex. 60) (noting that it might be more socially acceptable
. . . for unmarried parents
to put off firmer public commitment). These developments, over
time, would lodge in
the public mind the idea that marriage is merely an option
(rather than a social
expectation) for man-woman couples raising children.
That, in turn, would likely result in fewer fathers and mothers
marrying each other
particularly in lower-income communities where the immediate
(though not the long-
term) impact of marriage would be financially disadvantageous to
the parents. SeeJulien
O. Teitler et al.,Effects of Welfare Participation on Marriage,
71 J. Marriage & Fam.
878, 878 (2009) (Dfs. Ex. 67) (concluding that the negative
association between welfare
participation and subsequent marriage reflects temporary
economic disincentives).
Available data support these projections of a decreasing
marriage rate under a genderless-
marriage regime. SeeDSOF 48. Without the stability that marriage
provides, more
man-woman couples would end their relationships before their
children are grown, see
DSOF 39, and more children would be raised outside a stable
family unit led by their
married mother and father.
The adverse anticipated effects would not be confined to
children whose parents
separate. The costs would run throughout society. As fewer
man-woman couples marry
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Decades later, scholars observed that no-fault divorce laws
changed the social
norms and expectations associated with marriage. SeeWilliam J.
Goode, World Changes
in Divorce Patterns144 (1993) (Dfs. Ex. 68) (stating that
no-fault divorce laws helped
to create a set of social understandings as to how easy it is to
become divorced if married
life seems irksome). Those laws, at bottom, have created new
kinds of families in
which relationships are fragile and often unreliable. Judith S.
Wallerstein et al., The
Unexpected Legacy of Divorce: The 25 Year Landmark Study297
(2000) (Dfs. Ex. 69).
Empirical studies have confirmed that these changes in norms and
expectations led to a
change in marital behavior. Indeed, studies have shown that
no-fault divorce laws
increased divorce rates above their historical trends. DSOF 52.
Arizonans may thus
reasonably fear that redefining marriage would lead to similar
adverse social trends.
3.
The Challenged Marriage Laws Protect the Peoples Right to
Define Marriage for Their Community.
The People and their elected officials enacted the challenged
marriage laws to
protect the electorates right to define marriage for their
community. SeeDSOF 18, 27
30. The States marriage-recognition policy furthers this purpose
by ensuring that
marriage will not be indirectly redefined in Arizona through the
recognition of unions
solemnized elsewhere. SeeDSOF 18, 19. And the challenged
marriage amendment
furthers this purpose by ensuring that state-court judges cannot
interpret the Arizona
Constitution to change the definition of marriage. SeeDSOF 27,
30. Because the
challenged laws do not violate Plaintiffs fundamental rights,
the States important
interest in protecting the Peoples collective right to
democratically decide this vital
social question amply sustains the challenged laws.
Windsordirectly supports this important interest. Indeed, a
central focus of that
decision is the right of States to define the marital relation.
See, e.g., 133 S. Ct. at 2691
(The definition of marriage is the foundation of the States
broader authority to regulate
the subject of domestic relations[.]); id.at 2692 (discussing
the States essential
authority to define the marital relation). More specifically,
Windsoracknowledges that
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the Constitution permits States to define marriage through the
political process, extolling
the importance of allow[ing] the formation of consensus when
States shap[e] the
destiny of their own times on critical questions like the
definition of marriage:
In acting first to recognize and then to allow same-sex
marriages, New
York was responding to the initiative of those who sought a
voice in
shaping the destiny of their own times. These actions were
without doubt a
proper exercise of its sovereign authority within our federal
system, all in
the way that the Framers of the Constitution intended. The
dynamics of
state government in the federal system are to allow the
formation of
consensus respecting the way the members of a discrete community
treat
each other in their daily contact and constant interaction with
each other.
Id. (internal quotation marks, alterations, and citation
omitted).
The Schuetteplurality further affirms the Peoples right to
shap[e] the destiny of
their own times on sensitive policy matters. 134 S. Ct. at 1636.
[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[.]Id.at
1636-37. That a particular
question of public policy is sensitive, complex, delicate,
arcane, difficult,
divisive, or profound does not disable the People from prudently
addressing it.Id.
at 1637-38. Concluding otherwise would demean[] . . . the
democratic process and
impermissibly restrict the exercise of a fundamental right held
not just by one person but
by all in commonnamely, the right to speak and debate and learn
and then, as a
matter of political will, to act through a lawful electoral
process. Id.at 1637. When they
enacted the marriage laws challenged here, Arizonans
legitimately exercised this
collective right to decide one of the most profound and divisive
questions of our daythe
definition of the marital relation. The Fourteenth Amendment
does not prohibit this.
4. Plaintiffs Attempts to Impugn the Purposes for Arizonas
Man-
Woman Marriage Definition Are Unavailing.
Plaintiffs baselessly assert that the challenged marriage laws
primary purpose is
to disparage and demean same-sex couples, Pls. Mem. at 38, and
that such alleged
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