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Arkansas Bar Annual Meeting LGBT Legal Issues Panel Arkansas’s Same-Sex Marriage Case June 11, 2014.

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Presentation on theme: "Arkansas Bar Annual Meeting LGBT Legal Issues Panel Arkansas’s Same-Sex Marriage Case June 11, 2014."— Presentation transcript:

1 Arkansas Bar Annual Meeting LGBT Legal Issues Panel Arkansas’s Same-Sex Marriage Case June 11, 2014

2 At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history. Tanco v. Haslam, 2014 WL (M.D. Tenn. Mar. 14, 2014) 2

3 U.S. v. WINDSOR

4 It Started With This Woman Edith Windsor 4

5 “[s]cientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that most gay, lesbian, and bisexual adults do not experience their sexual orientation as a choice; that gay and lesbian people form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; and that same-sex couples are no less fit than heterosexual parents to raise children and their children are no less psychologically healthy and well-adjusted than children of heterosexual parents. In short, the claim that legal recognition of marriage for same-sex couples undermines the institution of marriage and harms their children is inconsistent with scientific evidence.” Windsor, Case No , Brief of American Psychological Association, at 4–5 (Mar. 1, 2013) 5

6 U.S. v. WINDSOR “marriage is more than a routine classification for purposes of certain statutory benefits” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013) 6

7 U.S. v. WINDSOR “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” U.S. v. Windsor, 133 S.Ct. 2675, 2691 (2013) 7

8 U.S. v. WINDSOR “Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” U.S. v. Windsor, 133 S.Ct. 2675, 2692 (2013) 8

9 U.S. v. WINDSOR “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and... it humiliates tens of thousands of children now being raised by same sex couples. The law in question makes it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in the community and their daily lives.” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013) 9

10 U.S. v. WINDSOR “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013) 10

11 U.S. v. WINDSOR “Private consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form ‘but one element in a personal bond that is more enduring.’” U.S. v. Windsor, 133 S.Ct. 2675, 2692 (2013) (citing Lawrence) 11

12 Just as Justice Scalia predicted in his animated dissent, “the state-law shoe” has dropped. Windsor, 133 S.Ct. at

13 Unbroken String of Victories For Same-sex Marriage Since Windsor Garden State Equality v. Dow, 82 AJd 336 (N.J. Super. Ct. Law Div. 2013) Griego v. Oliver, 316 P.3d 865 (N.M. 2013) Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) Bishop v. us. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL (W.D. Ky. Feb. 12, 2014) Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) Lee v. Orr, No. 13-CV-8719, 2014 WL (N.D. Ill. Feb. 21, 2014) De Leon v. Perry, No. SA-13-CA LG, 2014 WL (W.D. Tex. Feb. 26, 2014) Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL (M.D. Tenn. Mar. 14, 2014) DeBoer v. Snyder, No. 12-CV-10285, 2014 WL (E.D. Mich. Mar. 21, 2014) Henry v. Himes, No. 1:14-CV-129, 2014 WL (S.D. Ohio Apr. 14, 2014) Latta v. Otter, No. 1:13-CV CWD, 2014 WL (D. Idaho May 13, 2014) Baskin v. Bogan, No. 1:14-CV RLY, 2014 WL (S.D. Ind. May 8, 2014) Geiger v. Kitzhaber, No. 6:13-CV MC, 2014 WL (D. Oregon May 19, 2014) Whitewood v. Wolf, No. 1:13-CV JEJ, 2014 WL (M.D. Penn. May 20, 2014) 13

14 The Right To Marry 14

15 FUNDAMENTAL RIGHT TO MARRY “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967) 15

16 FUNDAMENTAL RIGHT TO MARRY “Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978) 16

17 FUNDAMENTAL RIGHT TO MARRY “a right so basic and fundamental and so deeply rooted in our society as the right of privacy in marriage” Griswold v. Connecticut, 381 U.S. 479, 491 (1965) 17

18 FUNDAMENTAL RIGHT TO MARRY “marriage involves interests of basic importance in our society.” Boddie v. Connecticut, 401 U.S. 371, 376 (1971) 18

19 … Defendants argue the right to marry does not include the right to same-sex marriage. That is, Defendants claim this is a “definitional” issue, in that Plaintiffs are seeking recognition of a “new right to same-sex marriage” as opposed to the existing “right to marry.” This Court finds this argument fails, as the Supreme Court did not adopt this line of reasoning in the analogous case of Loving v. Virginia. De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 19

20 The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff’s asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Court consistently describes a general “fundamental right to marry” rather than “the right to interracial marriage,” “the right to inmate marriage,” or “the right of people owing child support to marry.” Henry v. Himes, Case No. 1:14-cv (S.D. Ohio April 14, 2014) 20

21 Marriage is a fundamental right There can be no serious doubt that in America the right to marry is a rigorously protected fundamental right. Bostic v. Rainey, 2014 WL (E.D. Va. Feb. 14, 2014) 21

22 Because marriage is a fundamental right, therefore, Virginia’s Marriage Laws cannot be upheld unless they are justified by “compelling state interests” and are “narrowly drawn to express only those interests.” Carey, 431 U.S. at 686, 97 S.Ct. 2010; accord Zablocki, 434 U.S. at 388, 98 S.Ct. 673 … Bostic v. Rainey, 2014 WL (E.D. Va. Feb. 14, 2014) 22

23 Proposed Justifications for Discrimination 23

24 CLAIMED LEGITIMATE STATE INTERESTS (1)the basic premise of the referendum process, which is that political power flows from the people to their government on issues of vital importance to the public; (2)advancement of procreation by encouraging the development of biologically procreative relationships; (3)ensuring the best interests of children through laws where children born as a result of a union between a man and a woman are cared for by their biological parents in a stable family environment; (4)stability, uniformity, and continuity of laws in the face of an ongoing public and political debate about the nature and role of marriage; (5)preservation of the public purposes and social norms linked to the historical and deeply-rooted meaning of marriage; (6)a cautious, historical approach to governmental social experimentation as democratic, cultural and scientific discussions proceed. 24

25 Where have we heard these interests before? 25

26 In 1966, attorneys for the State of Virginia made the following arguments to the Supreme Court in support of Virginia’s law prohibiting interracial marriage: (1) “The Virginia statutes here under attack reflects [sic] a policy which has obtained in this Commonwealth for over two centuries and which still obtains in seventeen states”; (2) “Inasmuch as we have already noted the higher rate of divorce among the intermarried, is it not proper to ask, ‘Shall we then add to the number of children who become the victims of their intermarried parents?’ “; (3) “[I]ntermarriage constitutes a threat to society”; and (4) “[U]nder the Constitution the regulation and control of marital and family relationships are reserved to the States.” Brief for Respondents at 47– 52, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), 1967 WL These contentions are almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage. For the reasons discussed above, the court finds these arguments as unpersuasive as the Supreme Court found them fifty years ago. Anti-miscegenation laws in Virginia and elsewhere were designed to, and did, deprive a targeted minority of the full measure of human dignity and liberty by denying them the freedom to marry the partner of their choice. Utah’s Amendment 3 achieves the same result. Kitchen v. Herbert, 2013 WL (D. Utah Dec. 20, 2013) 26

27 What has each of the cases since Windsor said about these state interests? 27

28 BASIC PREMISE OF REFERENDUM PROCESS 28

29 When government is alleged to have threatened any of these rights, it is the responsibility of the courts to interpret and apply the protections of the Constitution. The United States Supreme Court explained the courts’ responsibility as follows: The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed (1943). Griego v. Oliver, 316 P.3d 865 (N.M. 2013) 29

30 Because same-gender couples (whether lesbian, gay, bisexual, or transgender, hereinafter “LGBT”) are a discrete group which has been subjected to a history of discrimination and violence, and which has inadequate political power to protect itself from such treatment, the classification at issue must withstand intermediate scrutiny to be constitutional. Griego v. Oliver, 316 P.3d 865 (N.M. 2013) 30

31 The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights “may not be submitted to vote; they depend on the outcome of no elections.” Kitchen v. Herbert, 2013 WL (D. Utah Dec. 20, 2013) 31

32 Regardless of the justifications provided by an enactment’s proponents, the Supreme Court has clearly stated that if such an enactment violates the U.S. Constitution—whether passed by the people or their representatives—judicial intervention is necessary to preserve the rule of law. Obergefell v. Wymyslo, 2013 WL (S.D. Ohio Dec. 23, 2013) 32

33 Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 33

34 … the Constitution, including its equal protection and due process clauses, protects all of us from government action at any level, whether in the form of an act by a high official, a state employee, a legislature, or a vote of the people adopting a constitutional amendment. Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 34

35 The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person whom the Constitution protects and, because they are so important, an individual’s fundamental rights may not be submitted to vote and may not depend on the outcome of elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed (1943) (emphasis added). De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 35

36 Given the importance of marriage as a fundamental right and its relation to an individual’s rights to liberty, privacy, and association, the Supreme Court has not hesitated to invalidate state marriage laws whenever such laws intrude on an individual’s protected realm of liberty. De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 36

37 This position, which the state defendants advance again in the present case, is just as ineffectual now as it was in Loving. Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. DeBoer v. Snyder, 2014 WL (E.D. Mich. Mar. 21, 2014) 37

38 The Court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question. DeBoer v. Snyder, 2014 WL (E.D. Mich. Mar. 21, 2014) 38

39 … the state’s domestic relations authority cannot trump federal constitutional limitations. DeBoer v. Snyder, 2014 WL (E.D. Mich. Mar. 21, 2014) 39

40 In attempting to define this case as a challenge to “the will of the people,” Tr. 2/25/14 p. 40, state defendants lost sight of what this case is truly about: people. DeBoer v. Snyder, 2014 WL (E.D. Mich. Mar. 21, 2014) 40

41 … given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious. Henry v. Himes, Case No. 1:14-cv (S.D. Ohio April 14, 2014) 41

42 ADVANCEMENT OF PROCREATION 42

43 The opponents of same-gender marriage assert that defining marriage to prohibit same-gender marriages is related to the important, overriding governmental interests of “responsible procreation and childrearing” and preventing the deinstitutionalization of marriage. However, the purported governmental interest of “responsible procreation and childrearing” is not reflected in the history of the development of New Mexico’s marriage laws. Procreation has never been a condition of marriage under New Mexico law, as evidenced by the fact that the aged, the infertile, and those who choose not to have children are not precluded from marrying. In addition, New Mexico law recognizes the right of same-gender couples to raise children. NMSA 1978, § 32A-5-11 (1993) (recognizing parties who are eligible to adopt children) … Griego v. Oliver, 316 P.3d 865 (N.M. 2013) 43

44 The court does not find the State’s argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children. Under the State’s reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate. This proposition is irreconcilable with the right to liberty that the Constitution guarantees to all citizens. Kitchen v. Herbert, 2013 WL (D. Utah Dec. 20, 2013) 44

45 … any relationship between Amendment 3 and the State’s interest in responsible procreation “is so attenuated as to render the distinction arbitrary or irrational.” Kitchen v. Herbert, 2013 WL (D. Utah Dec. 20, 2013) 45

46 The “for-the-children” rationale also fails because it would threaten the legitimacy of marriages involving post- menopausal women, infertile individuals, and individuals who choose to refrain from procreating. See Bishop, 2014 WL , at *30. Bostic v. Rainey, 2014 WL (E.D. Va. Feb. 14, 2014) 46

47 Same-sex couples can be just as responsible for a child’s existence as the countless couples across the nation who choose, or are compelled to rely upon, enhanced or alternative reproduction methods for procreation. Bostic v. Rainey, 2014 WL (E.D. Va. Feb. 14, 2014) 47

48 The procreation argument raised by Defendants also fails. De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 48

49 The Family Trust Foundation of Kentucky, Inc. submitted a brief as amicus curiae which cast a broader net in search of reasons to justify Kentucky’s laws. It offered additional purported legitimate interests including: responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the optimal childrearing environment, and proceeding with caution when considering changes in how the state defines marriage. These reasons comprise all those of which the Court might possibly conceive. The State, not surprisingly, declined to offer these justifications, as each has failed rational basis review in every court to consider them post- Windsor, and most courts pre-Windsor. Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 49

50 BEST INTERESTS OF CHILDREN BEST UNION BETWEEN MAN AND WOMAN 50

51 Defendants have not provided any evidentiary support for their assertion that denying marriage to same-sex couples positively affects childrearing. Accordingly, this Court agrees with other district courts that have recently reviewed this issue and concludes that there is no rational connection between Defendants’ assertion and the legitimate interest of successful childrearing. To the contrary, this Court finds that far from encouraging a stable environment for childrearing, Section 32 denies children of same-sex parents the protections and stability they would enjoy if their parents could marry. De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 51

52 The supposed justifications for the discriminatory legal classification are categorically at odds with the comprehensive legislative scheme that is intended to promote stable families and protect the best interests of children. Denying same-gender couples the right to marry and thus depriving them and their families of the rights, protections, and responsibilities of civil marriage violates the equality demanded by the Equal Protection Clause. Griego v. Oliver, 316 P.3d 865 (N.M. 2013) 52

53 Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the “ideal” child- rearing environment). It is more likely that any potential or existing child will be raised by the same-sex couple without any state-provided marital benefits and without being able to “understand the integrity and closeness of their own family and its concord with other families in their community.” Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 53

54 Indeed, Justice Kennedy explained that it was the government’s failure to recognize same-sex marriages that harmed children, not having married parents who happened to be of the same sex: [I]t humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Windsor, 133 S.Ct. at Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 54

55 The “for-the-children” rationale This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples … Bostic v. Rainey, 2014 WL (E.D. Va. Feb. 14, 2014) 55

56 The “for-the-children” rationale rests upon an unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents. Forty years ago a similarly unfortunate presumption was proffered to defend a law in Illinois that removed children from the custody of unwed fathers upon the death of the mother. Stanley v. Illinois, 405 U.S. 645, 653, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Bostic v. Rainey, 2014 WL (E.D. Va. Feb. 14, 2014) 56

57 Taking the state defendants’ position to its logical conclusion, the empirical evidence at hand should require that only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other heterosexual couples. Obviously the state has not adopted this policy and with good reason. The absurdity of such a requirement is self-evident. Optimal academic outcomes for children cannot logically dictate which groups may marry. DeBoer v. Snyder, 2014 WL (E.D. Mich. Mar. 21, 2014) 57

58 STABILITY, UNIFORMITY, AND CONTINUITY OF LAWS 58

59 This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated. Obergefell v. Kasich, 2013 WL (S.D. Ohio July 22, 2013) 59

60 By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that “No State shall make or enforce any law which shall … deny to any person within its jurisdiction equal protection of the laws.” Obergefell v. Kasich, 2013 WL (S.D. Ohio July 22, 2013) 60

61 … “ ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601 (Scalia, J., dissenting). Kitchen v. Herbert, 2013 WL (D. Utah Dec. 20, 2013) 61

62 … the idea of being married in one state and unmarried in another is one of “the most perplexing and distressing complication[s] in the domestic relations of... citizens.” Williams v. North Carolina, 317 U.S. 287, 299, 63 S.Ct. 207, 87 L.Ed. 279 (1942). The right to remain married is therefore properly recognized as one that is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution. Here, Ohio’s marriage recognition bans violate this fundamental right without rational justification. Obergefell v. Wymyslo, 2013 WL (S.D. Ohio Dec. 23, 2013) 62

63 When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. After Lawrence, same-sex relationships fall squarely within this sphere … Obergefell v. Wymyslo, 2013 WL (S.D. Ohio Dec. 23, 2013) 63

64 … in derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal. Obergefell v. Wymyslo, 2013 WL (S.D. Ohio Dec. 23, 2013) 64

65 Today’s decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail. DeBoer v. Snyder, 2014 WL (E.D. Mich. Mar. 21, 2014) 65

66 Ohio’s marriage recognition ban embodies an unequivocal, purposeful, and explicitly discriminatory classification, singling out same-sex couples alone, for disrespect of their out-of-state marriages and denial of their fundamental liberties. This classification, relegating lesbian and gay married couples to a second-class status in which only their marriages are deemed void in Ohio, is the core constitutional violation all of the Plaintiffs challenge. Henry v. Himes, Case No. 1:14-cv (S.D. Ohio April 14, 2014) 66

67 When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction by refusing to recognize the marriage, that state unlawfully intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. Henry v. Himes, Case No. 1:14-cv (S.D. Ohio April 14, 2014) 67

68 PRESERVATION OF TRADITION HISTORICAL AND DEEPLY- ROOTED MEANING OF MARRIAGE 68

69 Justice Kennedy restated the principle most clearly: “ ‘[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice....’ ” Lawrence, 539 U.S. at 577, 123 S.Ct (quoting Bowers, 478 U.S. at 216, 106 S.Ct (Stevens, J., dissenting)). Justice Scalia was more blunt, stating that “ ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Id. at 601, 123 S.Ct (Scalia, J., dissenting) (emphasis in original). Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 69

70 Although this question arouses sincerely-felt religious beliefs both in favor of and against same-gender marriages, our analysis does not and cannot depend on religious doctrine without violating the Constitution. See N.M. Const. art. II, § 11, Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (“[O]ne religious denomination cannot be officially preferred over another.”). Instead we must depend upon legal principles to analyze the statutory and constitutional bases for depriving same-gender couples from entering into a purely secular civil marriage and securing the accompanying rights, protections, and responsibilities of New Mexico laws. Our holding will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs. Griego v. Oliver, 316 P.3d 865 (N.M. 2013) 70

71 It is not appropriate to define the State’s interest as maintaining the tradition of marriage only between opposite-gender couples, any more than it was appropriate to define the State’s interest in Loving, 388 U.S. at 12, 87 S.Ct. 1817, as only maintaining same-race marriages. Griego v. Oliver, 316 P.3d 865 (N.M. 2013) 71

72 … the fact that a form of discrimination has been “traditional” is a reason to be more skeptical of its rationality. “The Court must be especially vigilant in evaluating the rationality of any classification involving a group that has been subjected to a tradition of disfavor for a traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification.” Obergefell v. Wymyslo, 2013 WL (S.D. Ohio Dec. 23, 2013) 72

73 … courts reviewing marriage regulations, by either the state or federal government, must be wary of whether “defending” traditional marriage is a guise for impermissible discrimination against same-sex couples. Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 73

74 Traditional exclusion of the disadvantaged group from state-sanctioned marriage does not itself evidence a rational link to the identified goal of promoting responsible procreation within marriage. Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 74

75 … the mere fact that an exclusion has occurred in the past (without constitutional problem) does not mean that such exclusion is constitutional when challenged at a particular moment in history. This Court has an obligation to consider whether an exclusion, although historical, violates the constitutional rights of Oklahoma citizens. Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 75

76 (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack....”). Over the past forty years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties. Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 76

77 Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons. Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 77

78 The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it. Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 78

79 While Defendants do not expressly advance “tradition” as a rational basis for Section 32, they refer to the “traditional definition of marriage” and appeal to how it is “traditionally understood.” However, tradition, alone, cannot form a rational basis for a law. See Lawrence, 539 U.S. at 602, 123 S.Ct (Scalia, J., dissenting) (‘ “Preserving the traditional institution of marriage... is just a kinder way of describing the State’s moral disapproval of same-sex couples,” which, in turn, is not a legitimate reason) … De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 79

80 The same Constitution that protects the free exercise of one’s faith in deciding whether to solemnize certain marriages rather than others, is the same Constitution that prevents the state from either mandating adherence to an established religion, U.S. Const. amend I, or “enforcing private moral or religious beliefs without an accompanying secular purpose.” Perry, 704 F.Supp.2d at 930–931 (citing Lawrence v. Texas, 539 U.S. 558, 571, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)). As a result, tradition and morality are not rational bases for the MMA. DeBoer v. Snyder, 2014 WL (E.D. Mich. Mar. 21, 2014) 80

81 … the fundamental right to marry is “deeply rooted in this Nation’s history and tradition” for purposes of constitutional protection even though same-sex couples have not historically been allowed to exercise that right. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Id. at 572 (citation omitted). While courts use history and tradition to identify the interests that due process protects, they do not carry forward historical limitations, either traditional or arising by operation of prior law, on which Americans may exercise a right, once that right is recognized as one that due process protects. “Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.” Henry v. Himes, Case No. 1:14-cv (S.D. Ohio April 14, 2014) 81

82 A CAUTIOUS, HISTORICAL APPROACH 82

83 The jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since The Supreme Court has decided several cases since Baker which demonstrate that it no longer views constitutional challenges based on sex or sexual identity classifications as unsubstantial. For example, when Baker was decided, ‘“intermediate scrutiny’ was not yet in the Court’s vernacular” and “classifications based on illegitimacy and sex were not yet deemed quasi-suspect.” Windsor v. United States, 699 F.3d 169, 179 (2d Cir. 2012) (citing Craig v. Boren, 429 U.S. 190, 218 (1976) (Rehnquist, J., dissenting) (coining “intermediate level scrutiny”); Lalli v. Lalli, 439 U.S. 259, (1978) (applying intermediate scrutiny to a classification based on illegitimacy, and describing how heightened scrutiny had been used for such classifications since 1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality) (identifying sex as a suspect class)). The Supreme Court had also not yet ruled that “a classification [based on sexuality] undertaken for its own sake” lacked a rational basis. Romer v. Evans, 517 U.S. 620, 635 (1996). Further, in 1972, governments could lawfully “demean [homosexual persons’] existence or control their destiny by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003). Finally, in June of this year, the Supreme Court held that a federal statute defining marriage as only between heterosexual couples violated the equal protection and due process rights of same-sex couples who had married in states where same-sex marriage is legally recognized. See United States v. Windsor, 570 U.S. – (2013). Whitewood v. Wolf, 1:13-CV JEJ (M.D. Pa. Nov. 15, 2013) 83

84 Gradually, the United States Supreme Court has invalidated laws that single out gay and lesbian individuals for disparate treatment. See Windsor v. United States, 133 S.Ct. 2675, (2013) (holding the Defense of Marriage Act’s restrictions on same-sex couples unconstitutional as a deprivation of liberty); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 (1986), and finding the criminal anti-sodomy law an unconstitutional government intrusion on the personal and private life of consenting adult individuals); Romer v. Evans, 517 U.S. 620 (1996) (invalidating a state law prohibiting local ordinances banning discrimination against gays and lesbians). Lee v. Orr, 2013 WL (N.D. Ill. Dec. 10, 2013) 84

85 … several doctrinal developments in the Court’s analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbians demonstrate that the Court’s summary dismissal in Baker has little if any precedential effect today. Kitchen v. Herbert, 2013 WL (D. Utah Dec. 20, 2013) 85

86 The State points out that, despite the doctrinal developments in these cases and others, a number of courts have found that Baker survives as controlling precedent and therefore precludes consideration of the issues in this lawsuit. … all of these cases were decided before the Supreme Court issued its opinion in Windsor. Kitchen v. Herbert, 2013 WL (D. Utah Dec. 20, 2013) 86

87 The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals. All citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual’s ability to marry and the intimate choices a person makes about marriage and family. Kitchen v. Herbert, 2013 WL (D. Utah Dec. 20, 2013) 87

88 … what was once deemed an “unsubstantial” question in 1972 would now be deemed “substantial” based on intervening developments in Supreme Court law. Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 88

89 … although the Supreme Court’s decision in Windsor was silent as to Baker’s impact, statements made by the Justices indicate that lower courts should be applying Windsor (and not Baker) to the logical “next issue” of state prohibitions of same-sex marriage. Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 89

90 … there is nothing sudden about this result. The body of constitutional jurisprudence that serves as its foundation has evolved gradually over the past forty- seven years. The Supreme Court took its first step on this journey in 1967 when it decided the landmark case Loving v. Virginia, which declared that Virginia’s refusal to marry mixed-race couples violated equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the states, are subject to constitutional scrutiny and “must respect the constitutional rights of persons.” Windsor, 133 S.Ct. at 2691 (citing Loving ). Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 90

91 Years later, in 1996, Justice Kennedy first emerged as the Court’s swing vote and leading explicator of these issues in Romer v. Evans. Romer, 517 U.S. at 635, 116 S.Ct (holding that Colorado’s constitutional amendment prohibiting all legislative, executive, or judicial action designed to protect homosexual persons violated the Equal Protection Clause). He explained that if the “ ‘constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’ ” Id. at 634–35, 116 S.Ct (emphasis in original) (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). These two cases were the virtual roadmaps for the cases to come next. Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 91

92 In 2003, Justice Kennedy, again writing for the majority, addressed another facet of the same issue in Lawrence v. Texas, explaining that sexual relations are “but one element in a personal bond that is more enduring” and holding that a Texas statute criminalizing certain sexual conduct between persons of the same sex violated the Constitution. 539 U.S. at 567, 123 S.Ct Ten years later came Windsor. And, sometime in the next few years at least one other Supreme Court opinion will likely complete this judicial journey. Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) 92

93 This Court concludes that doctrinal developments since 1971 compel the conclusion that Baker is no longer binding. The Second Circuit recognized this explicitly, holding that “[e]ven if Baker might have had resonance... in 1971, it does not today.” Windsor v. United States, 699 F.3d 169, 178 (2d Cir.2012), aff’d, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (holding that Baker did not foreclose jurisdiction over review of the federal Defense of Marriage Act (“DOMA”)). Bostic v. Rainey, 2014 WL (E.D. Va. Feb. 14, 2014) 93

94 Baker was decided more than forty years ago. This Court finds that subsequent doctrinal and societal developments since 1972 compel this Court to conclude that the summary dismissal in Baker is no longer binding, and that the issue of same-sex marriage now presents a substantial federal question. De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 94

95 The Real Purpose – To Impose Inequality – Is Not A Legitimate State Interest 95

96 … as an Ohio district court recently found when confronted with the same question, the only “purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: ‘to impose inequality’ and to make gay citizens unequal under the law.” Obergefell, 2013 WL , at *6. De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 96

97 “[R]ational basis review is not a rubber stamp of all legislative action, as discrimination that can only be viewed as arbitrary and irrational will violate the Equal Protection Clause.” Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir.2000). Bassett v. Snyder, 2013 WL (E.D. Mich. June 28, 2013) 97

98 The Sixth Circuit repeatedly has held that “ ‘the desire to effectuate one’s animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause.’ ” Davis, 679 F.3d at 438 (quoting Stemler v. City of Florence, 126 F.3d 856, (6th Cir.1997)). Bassett v. Snyder, 2013 WL (E.D. Mich. June 28, 2013) 98

99 Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association: Obergefell v. Kasich, 2013 WL (S.D. Ohio July 22, 2013) 99

100 … moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 100

101 Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. Bishop v. Holder, 2014 WL (N.D. Okla. Jan. 14, 2014) 101

102 As described so well by substituting our particular circumstances within Justice Kennedy’s own words, that principle applies quite aptly here: Bourke v. Beshear, 2014 WL (W.D. Ky. Feb. 12, 2014) [Kentucky’s laws’] principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. 102

103 Accordingly, the Court finds Defendants have failed to show—and the Court has been unable to find—some rational relationship between Section 32 and a legitimate governmental purpose. De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 103

104 Defendants have failed to identify any rational, much less a compelling, reason that is served by denying same-sex couples the fundamental right to marry. De Leon v. Perry, 2014 WL (W.D. Tex. Feb. 26, 2014) 104

105 The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State’s ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances. Henry v. Himes, Case No. 1:14-cv (S.D. Ohio April 14, 2014) 105

106 … marriage confers “a dignity and status of immense import.” Windsor, 133 U.S. at … Defendants have again failed to provide evidence of any state interest compelling enough to counteract the harm Plaintiffs suffer when they lose this immensely important dignity, status, recognition, and protection, as such a state interest does not exist. Henry v. Himes, Case No. 1:14-cv (S.D. Ohio April 14, 2014) 106

107 Arkansas 107

108 Waiting for their rights… 108

109 The ruling affected real people 109

110 110

111 111

112 112

113 It affected children and families 113

114 Arkansas Marriage Licenses 114

115 40 Years After Loving 115

116 We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?... I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person ” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others.... I support the freedom to marry for all. That’s what Loving, and loving, are all about. Mildred Loving, “Loving for All” June 12, 2007 – 40 th Anniversary of Loving v. Virginia 116

117 “It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.“ Judge Piazza 117

118 END 118


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