Bourke/De Leon

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Motion for summary judgment and immediate injunction in Kentucky same-sex marriage case.

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

ELECTRONICALLY FILED

GREGORY BOURKE, ET AL. )
)
PLAINTIFFS )
) CIVIL ACTION NO.
v. )
) 3:13-CV-750-JGH
STEVE BESHEAR, ET AL. )
)
DEFENDANTS )

MOTION FOR SUMMARY JUDGMENT AND IMMEDIATE INJUNCTIVE RELIEF

Plaintiffs move the Court, pursuant to Fed. R. Civ. P. 56 for judgment as a matter of
law and immediate injunctive relief. In support of this Motion, Plaintiffs rely on the attached
Memorandum of Law.

Respectfully submitted,



/s/ Laura E. Landenwich
Laura E. Landenwich
Daniel J. Canon
L. Joe Dunman
Louis P. Winner
CLAY DANIEL WALTON & ADAMS PLC
101 Meidinger Tower
462 South Fourth Street
Louisville, KY 40202
(502) 561-2005 – phone
(502) 415-7505 - fax
[email protected]
[email protected]
[email protected]
Co-Counsel for Plaintiffs


Case 3:13-cv-00750-JGH Document 38 Filed 12/16/13 Page 1 of 2 PageID #: 330

Shannon Fauver
Dawn Elliott
FAUVER LAW OFFICE PLLC
1752 Frankfort Avenue
Louisville, KY 40206
(502) 569-7710
Co-counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on December 16, 2013, I electronically filed the foregoing with
the clerk of the court by using the CM/ECF system, which will send a notice of electronic
filing to the following:

Clay A. Barkley
Brian Judy
Assistant Attorney Generals
Office of the Attorney General
Suite 118
700 Capital Avenue
Frankfort, KY 40601
Counsel for Defendant Steve Beshear and
Jack Conway


/s/ Laura E. Landenwich

Case 3:13-cv-00750-JGH Document 38 Filed 12/16/13 Page 2 of 2 PageID #: 331
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

ELECTRONICALLY FILED

GREGORY BOURKE, ET AL. )
)
PLAINTIFFS )
) CIVIL ACTION NO.
v. )
) 3:13-CV-750-JGH
STEVE BESHEAR, ET AL. )
)
DEFENDANTS )


PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR
SUMMARY JUDGMENT


This Court is presented with the opportunity to restore constitutional rights to
Kentuckians who are the target of state-sanctioned discrimination. Moreover, this case
presents the Court with an opportunity to join an increasing number of courts – including
those within the Sixth Circuit – which have refused to end up on the wrong side of
history.
1

Plaintiffs are ordinary married couples. They go to work, attend school, raise their
children, go to church, pay taxes, and in most respects live as any other married couple in
Kentucky. Like many married couples in the Commonwealth, Plaintiffs were wed in
other jurisdictions. Their marriages were in all respects valid under the laws of the
jurisdictions in which they were solemnized and registered. The federal government

!
See Obergefell v. Kasich, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio July 22, 2013) (attached hereto as
Exhibit 1).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 1 of 31 PageID #: 332
recognizes Plaintiffs' marriages, and extends certain benefits to them as a result.
2
And
yet, the Commonwealth of Kentucky refuses to acknowledge the commitments made by
these couples because their spouses are of the same sex.
The laws challenged in this case, KRS 402.040, KRS 402.045 and Ky. Const. §
233A, enable and enshrine Kentucky's ongoing discrimination against Plaintiffs. As a
result, Plaintiffs have taken extraordinary measures to achieve the legal protections
automatically afforded to opposite-sex couples by operation of law. Even though these
measures have been taken, Plaintiffs are still deprived of critical privileges, benefits,
rights and responsibilities afforded to opposite-sex couples. Perhaps more importantly,
Plaintiffs' families have been humiliated and degraded by Kentucky's ongoing refusal to
recognize the validity of their unions.
The decision in this case, and others like it, will affect the lives of Kentuckians for
generations to come. And while the issues in this case may be mired in controversy, the
discrete questions of law facing this Court are not difficult. Kentucky's discriminatory
laws violate numerous provisions of the U.S. Constitution, and in numerous ways. These
Plaintiffs, along with their minor children, seek to have their marriages recognized and
legitimized by Kentucky. This Court can look to any one of the Constitutional protections
discussed below to provide a basis for temporary and permanent injunctive relief.
FACTS

Plaintiffs are four same-sex couples who are legally married in other jurisdictions,
and currently live in the Commonwealth of Kentucky. Plaintiffs Bourke-De Leon were
married in Ontario, Canada in March, 2004. (Bourke-De Leon Affidavit, Exhibit 2).

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Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 2 of 31 PageID #: 333
Plaintiffs Franklin-Boyd were married in Stratford, Connecticut in July, 2010. (Franklin-
Boyd Affidavit, Exhibit 3). Plaintiffs Johnson-Campion were married in Riverside,
California in July, 2008 (Johnson-Campion Affidavit, Exhibit 4). Plaintiffs Meade-
Barlowe were married in Davenport, Iowa in July, 2009. (Meade-Barlowe Affidavit,
Exhibit 5).
On March 11, 2004, the Kentucky Senate passed Senate Bill 245, which proposed
the following amendment to the Kentucky Constitution:
Only a marriage between one man and one woman shall be valid or
recognized as a marriage in Kentucky. A legal status identical or
substantially similar to that of marriage for unmarried individuals shall not
be valid or recognized.

The amendment was sponsored by Sen. Vernie McGaha, who gave the following
justification for the bill on the Senate floor:
Marriage is a divine institution designed to form a permanent union
between man and woman. According to the principles that have been laid
down, marriage is not merely a civil contract; the scriptures make it the
most sacred relationship of life, and nothing could be more contrary to the
spirit than the notion that a personal agreement ratified in a human court
satisfies the obligation of this ordinance. Mr. President, I’m a firm believer
in the Bible. And Genesis 1, it tells us that God created man in his own
image, and the image of God created he him; male and female created he
them. And I love the passage in Genesis 2 where Adam says ‘this is now a
bone of my bones and flesh of my flesh. She shall be called woman
because she was taken out of man. Therefore shall a man leave his father
and his mother and cleave to his wife and they shall be one flesh.’ The
first marriage, Mr. President. And in First Corinthians 7:2, if you notice
the pronouns that are used in this scripture, it says, ‘Let every man have
his own wife, and let every woman have her own husband.’

**** **** ****

We in the legislature, I think, have no other choice but to protect our
communities from the desecration of these traditional values. We must
stand strong and against arbitrary court decisions, endless lawsuits, the
local officials who would disregard these laws, and we must protect our
neighbors and our families and our children. Decisive action is needed and
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 3 of 31 PageID #: 334
that’s why I have sponsored Senate Bill 245, which is a constitutional
amendment that defines marriage as being between one man and one
woman. Once this amendment passes, no activist judge, no legislature or
county clerk whether in the Commonwealth or outside of it will be able to
change this fundamental fact: The sacred institution of marriage joins
together a man and a woman for the stability of society and for the greater
glory of God.

(Senate Chambers March 11, 2004, Exhibit 6 at 1:00:30—1:05:15).
Sen. Gary Tapp, the bill’s Co-Sponsor, then declared, “Mr. President when the
citizens of Kentucky accept this amendment, no one, no judge, no mayor, no county clerk
will be able to question their beliefs in the traditions of stable marriages and strong
families.” (Id. at 1:07:45). The only other senator to speak in favor of the bill, Sen. Ed
Worley, described marriage as a “cherished” institution (Id. at 1:25:55). He bemoaned
that “liberal judges” changed the law so that “children can’t say the Lord’s Prayer in
school.” (Id. at 1:27:19). Soon, he concluded, we will all be prohibited from saying “the
Pledge to the Legiance[sic] in public places because it has the words ‘in God we trust.’”
(Id. at 1:27:46). In support of the amendment, he cited to the Bible’s “constant” reference
to men and women being married. (Id. at 1:29:55). By way of example, he quoted a
passage from Proverbs 21:19, “Better to live in the desert than with a quarrelsome, ill-
tempered wife.” (Id. at 1:30:15). The Senate passed the bill, and the amendment was
placed on the ballot. It was ratified on November 2, 2004, and is codified as Kentucky
Constitution § 233A.
This discriminatory provision of the Kentucky Constitution is not all that stands
between Plaintiffs and marriage equality in their home state. In addition, KRS 402.040(2)
states, “A marriage between members of the same sex is against Kentucky public policy.
. . .” KRS 402.045 declares, “A marriage between members of the same sex which occurs
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 4 of 31 PageID #: 335
in another jurisdiction shall be void in Kentucky.” Finally, 28 U.S.C. §1738C, commonly
known as the Defense of Marriage Act (DOMA) § 2, purports to give Kentucky safe
harbor for its state-sanctioned discrimination by stating that “No State...shall be required
to give effect to any public act, record, or judicial proceeding of any other
State...respecting a relationship between persons of the same sex treated as a marriage
under the laws of such other State...or a right or claim arising from such relationship.”
Plaintiffs have suffered a variety of harms as a result of Kentucky’s refusal to
recognize their marriages. They are subjected to higher income and estate taxes. They are
unable to benefit from leave under the Family Medical Leave Act, or from family
insurance coverage. They do not have the burden and privilege of making medical or
legal decisions for the other without the creation and expense of contractual relationships.
Should they desire to divorce, they are unable to do so. (See Exhibits 2-5). The Plaintiffs
with minor children have the additional burden of disproportionate parental rights to
those children. Same-sex couples cannot adopt children in the Commonwealth of
Kentucky, and the non-adoptive spouse is thus not afforded the parental rights inherent in
the parent-child relationship. (Exhibits 2 & 4).
In addition to these legal and financial harms, it is well recognized that the
intangible benefits of marriage form a significant underpinning to the social fabric of our
society. In their amicus brief to the United States Supreme Court in Hollingsworth v.
Perry,
3
the American Psychological Association, American Medical Association,
American Academy of Pediatrics, and several other healthcare organizations argued that
marriage provides a “positive sense of identity, self-worth, and mastery.” (Amicus Brief,
Exhibit 7, p. 14 (citation omitted)). They argued that scientific studies show that marriage

3
133 S. Ct. 2652 (2013).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 5 of 31 PageID #: 336
results in greater physical and mental well-being when compared to cohabiting couples.
(Id. at 15-16). With respect to the children of same-sex couples, the American Academy
of Pediatrics takes the position that “If a child has 2 living and capable parents who
choose to create a permanent bond by way of civil marriage, it is in the best interests of
their child(ren) that legal and social institutions allow and support them to do so,
irrespective of their sexual orientation.” (Id. at p. 29, quoting Am. Acad. Of Pediatrics,
Committee of Psychosocial Aspects of Child and Family Health, Policy Statement:
Promoting the Well-Being of Children Whose Parents are Gay or Lesbian.). Finally, the
medical associations assert that failing to recognize same-sex couples’ marriages results
in a stigma that devalues and delegitimizes their familial relationships. (Id. p. 34-36).
ARGUMENT
The regulation of marriage occupies “an area that has long been regarded as a
virtually exclusive province of the States.”
4
However, “state laws defining and regulating
marriage, of course, must respect the constitutional rights of persons,”
5
which brings
Kentucky in conflict with the rights and freedoms guaranteed by the United States
Constitution. The laws at issue in this case contravene a number of rights guaranteed to
Plaintiffs by the federal Constitution. These include the rights to due process and equal
protection articulated in the Fifth and Fourteenth Amendments, which protect individual
life, liberty, and property from unjustified restriction by the federal and state governments
and require equality for all citizens under the law. By rejecting the Plaintiffs’ marriages,
the laws at issue here infringe the fundamental rights of marriage and travel. As such,
these laws are subject to heightened judicial scrutiny, but fail under any standard of

4
Sosna v. Iowa, 419 U.S. 393, 404 (1975).
5
United States v. Windsor, 133 S. Ct. 2675, 2691 (2013), citing Loving v. Virginia, 388
U.S. 1, 87 (1967).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 6 of 31 PageID #: 337
review. Furthermore, the legislative history of Ky. Const. § 233A unquestionably
demonstrates that it was created with the express purpose of advancing a very narrow
view of Christianity, thereby violating the Establishment Clause of the First Amendment.
In addition, these laws violate the First Amendment's guarantee of freedom of intimate
association, the full faith and credit guarantee in the U.S. Constitution, as well as the
Supremacy Clause.

I. KENTUCKY’S REFUSAL TO RECOGNIZE PLAINTIFFS’ MARRIAGES
VIOLATES THE DUE PROCESS AND EQUAL PROTECTION
GUARANTEES OF THE FEDERAL CONSTITUTION


Though due process and equal protection are discrete legal concepts, courts often
apply similar analyses and standards of review for both. “Equality of treatment and the
due process right [to protect] the substantive guarantee of liberty are linked in important
respects, and a decision on the latter point advances both interests.”
6
There is significant
interplay between the Constitution’s Amendments and the rights they protect. The
Kentucky and federal laws challenged by the Plaintiffs in this case implicate both Due
Process and Equal Protection.
The Constitutional promise of equal protection is violated when a law creates “an
indiscriminate imposition of inequalities.”
7
“The guaranty of equal protection of the laws
is a pledge of the protection of equal laws.”
8
While both federal and state governments
are given some discretion to enact laws and regulations based upon classifications of
citizens, this discretion is not without bounds. As a baseline, there must be “a rational

6
Lawrence v. Texas, 539 U.S. 558, 575 (2003).
7
Sweatt v. Painter, 339 U.S. 629, 635 (1950).
8
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (internal quotations
omitted).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 7 of 31 PageID #: 338
relationship between the disparity of treatment and some legitimate governmental
purpose.”
9
Where a classification implicates a fundamental right such as marriage or
otherwise targets a suspect classification such as race, courts must apply a very strict
form of judicial scrutiny.
The Fifth Amendment to the U.S. Constitution limits the power of the federal
government to regulate the lives of individuals. “No person shall be ... deprived of life,
liberty, or property, without due process of law...”
10
This Due Process Clause also
appears in the Fourteenth Amendment, which provides due process for state actions: “No
state shall...deprive any person of life, liberty, or property, without due process of
law...”
11

Because the laws at issue here infringe Plaintiffs’ fundamental rights to marry and
to travel by denying recognition of their valid marriages, they violate the due process
protections of the Fifth and Fourteenth Amendments. And since Plaintiffs are
homosexuals, these laws also infringe equal protection (discussed below). These laws can
withstand constitutional scrutiny only if this Court finds they are narrowly tailored to
serve a compelling state interest.
A. Marriage and Travel Are Fundamental Rights

The right to marry is a liberty interest for which individuals are entitled to due
process under both the Fifth and Fourteenth Amendments.
12
Because “[t]he freedom to
marry has long been recognized as one of the vital personal rights essential to the orderly

9
Heller v. Doe, 509 U.S. 312, 320 (1993).
10
U.S. Const. amend. XIV.
11
U.S. Const. amend. XIV § 1.
12
Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Cleveland Bd. of Educ. v. LaFleur, 414
U.S. 632, 639 (U.S. 1974).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 8 of 31 PageID #: 339
pursuit of happiness by free men,”
13
the Supreme Court has declared, “the decision to
marry is a fundamental right.”
14

Marriage as a fundamental right implicates numerous liberty interests, including
the right to privacy,
15
the right to intimate choice,
16
and the right to free association.
17

Marriage involves “the most intimate and personal choices a person may make in a
lifetime, choices central to dignity and autonomy...”
18
As such, the Constitution demands
respect “for the autonomy of the person in making these choices.”
19
And there is no
constitutional basis to deny homosexuals the autonomy in familial decisions that
heterosexuals enjoy.
20
The right to marriage is “of fundamental importance to all
individuals.”
21

Similarly, the United States Supreme Court has long recognized a fundamental
constitutional right to travel.
22
The right to unfettered interstate travel “occupies a
fundamental concept of our Federal Union. It is a right that has been firmly established
and repeatedly recognized.”
23
As such, it has been zealously guarded by the judiciary for
decades. The “virtually unconditional personal right, guaranteed by the Constitution to us
all,”
24
to “be free to travel throughout the length and breadth of our land uninhibited by

13
Loving v. Virginia, 388 U.S. 1, 12 (1967).
14
Turner v. Safley, 482 U.S. 78, 95 (1987).
15
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
16
Lawrence, 539 U.S. 574.
17
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996).
18
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).
19
Lawrence, 539 U.S. at 574.
20
Id.
21
Zablocki v.Redhail, 434 U.S. 374, at 384 (1978).
22
Shapiro v. Thompson, 394 U.S. 618 (1969).
23
United States v. Guest, 383 U.S. 745, 757 (1966).
24
Saenz v. Roe, 426 U.S. 489, 499 (1999)(emphasis added and quotation marks omitted).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 9 of 31 PageID #: 340
statutes, rules, or regulations which unreasonably burden or restrict this movement,”
25

“has repeatedly been recognized as a basic constitutional freedom.”
26
This right is firmly
embedded in our country’s jurisprudence, and is one which is essential to our federal
system of government.
27

“A state law implicates the right to travel when it actually deters such travel,
when impeding travel is its primary objective, or when,” as here, “it uses any
classification which serves to penalize the exercise of that right.”
28
In cases where state
legislation impedes the right to travel, the state must justify the law only with “a
compelling state interest.”
29

B. The Appropriate Level of Scrutiny

1. Strict Scrutiny

Because marriage is a fundamental right, laws that affect or interfere with an
individual’s right to marry are subject to very close judicial consideration. “Equal
protection analysis requires strict scrutiny of a legislative classification...when the
classification impermissibly interferes with the exercise of a fundamental right or
operates to the peculiar disadvantage of a suspect class.”
30
And “[w]hen the government
intrudes on choices concerning family living arrangements, this Court must examine
carefully the importance of the governmental interests advanced and the extent to which

25
Id. at 498 (internal quotation marks omitted).
26
Memorial Hospital v. Maricopa County, 415 U.S. 250, 254 (1974).
27
Saenz, 426 U.S. at 498, 503–04.
28
Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 903, 106 (1986)(internal
quotation marks and citations omitted).
29
Maricopa County, 415 U.S. at 258; see also Shapiro, 394 U.S. at 634.
30
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (U.S. 1976), citing Rodriguez, 411 U.S.
at 16.
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 10 of 31 PageID #: 341
they are served by the challenged regulation.”
31
Personal decisions about marriage and
family relationships must be made “without unjustified government interference.”
32

Strict scrutiny also applies whenever a law discriminates on the basis of a suspect
classification. “Prejudice against discrete and insular minorities” calls for “a
correspondingly more searching judicial inquiry.”
33
“[T]he traditional indicia of
suspectness” include when a class is “subjected to such a history of purposeful unequal
treatment, or relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process.”
34
Additionally, a
“discrete and insular minority” can be determined by the immutable characteristics which
its members share.
35

Undeniably, gay men and lesbians as a group have experienced a “history of
purposeful unequal treatment or been subjected to unique disabilities on the basis of
stereotyped characteristics not truly indicative of their abilities.”
36
Across the United
States, particularly in recent years, laws have been enacted at both the state and federal
level targeting homosexuals for unequal treatment. Some of those laws have subsequently
been declared unconstitutional precisely for that reason.
37
Plaintiffs and other
homosexuals are a minority of our population and are “politically powerless” to prevent

31
Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977).
32
Carey v. Population Services International, 431 U.S. 678, 684-85 (1977).
33
United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); see, e.g.,
Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995) (strict scrutiny applied to a
racial classification).
34
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
35
Lyng v. Castillo, 477 U.S. 635, 638 (1986); see, e.g., Frontiero v. Richardson, 411 U.S.
677, 686 (1973) (“sex, like race and national origin, is an immutable characteristic.”).
36
Murgia, 427 U.S. at 313; and see Lawrence v. Texas, 539 U.S. 558, 571 (2003).
37
See, e.g., Romer, 517 U.S. 620; Lawrence, 539 U.S. 558; and Windsor, 133 S. Ct.
2675.
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 11 of 31 PageID #: 342
discrimination by the majority.
38
They have had to rely largely on litigation and the
judicial system’s eventual recognition of their constitutional rights to defeat
discriminatory legislation enacted by majorities of voters and state legislators.
Additionally, the laws at issue in this case classify people on the basis of sexual
orientation. Such classifications trigger heightened scrutiny because sexual orientation is
one of a person’s defining characteristics and is beyond a person’s control. (See Exhibit
7, pp.7-10: “Homosexuality Is a Normal Expression of Human Sexuality, Is Generally
Not Chosen, and Is Highly Resistant to Change.”). Among medical scholars, sexual
orientation is now widely recognized as “immutable.” Quite recently, a District Court
within the Sixth Circuit declared that gays and lesbians, “exhibit obvious, immutable, or
distinguishing characteristics that define them as a discreet group” because sexual
orientation is an integral part of personal identity and cannot be changed through
conscious decision or any other method.
39
And even if some individuals’ sexual
orientation were to change over time, the state cannot produce any evidence that it would
be the result of a conscious choice.
40

The laws challenged here must be subject to strict scrutiny both because they
discriminate against a suspect group and because they infringe fundamental rights. Once
strict scrutiny is chosen as the appropriate standard of review, the proponent of the law in

38
Bowen v. Gilliard, 483 U.S. 587, 602 (1987).
39
Bassett v. Snyder, 2013 U.S. Dist. LEXIS 93345 ( E.D. Mich. 2013), quoting Lyng, 477
U.S. at 638. (Exhibit 8).
40
Courts have even ruled that the conscious ability to change certain characteristics
doesn’t make them any less immutable. Zavaleta-Lopez v. AG of the United States, 360
Fed. Appx. 331, 333 (3d Cir. 2010) (“[W]e focus on whether putative group members
possess common, immutable characteristics such as race, gender, or a prior position,
status, or condition, or characteristics that are capable of being changed but are of such
fundamental importance that persons should not be required to change them, such as
religious beliefs.”) (Emphasis added)).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 12 of 31 PageID #: 343
question must prove that “it is the least restrictive means of achieving some compelling
state interest.”
41
Or, stated somewhat differently, a challenged law must demonstrate that
it is narrowly tailored to further a compelling state interest.
42

The types of compelling state interests recognized by the U.S. Supreme Court
include the prohibition and regulation of drugs,
43
remedying past and present racial
discrimination,
44
and protecting the interests of minor children.
45
To date, the
Commonwealth of Kentucky has not identified a compelling interest for its refusal to
recognize same-sex marriages lawfully performed in other states. Even if it could, a
blanket prohibition on the recognition of any foreign same-sex marriage is not going to
be “the least restrictive means” for furthering that interest. Extending all the rights and
benefits of marriage to all opposite-sex couples while denying them to all same-sex
couples solely upon distinctions drawn according to sexual orientation is exceptionally
broad and restrictive, regardless of any possible compelling state interest for doing so.
Therefore, should this honorable Court apply the appropriate standard review of
strict scrutiny, each of the laws at issue here must be ruled unconstitutional under the
Fifth and Fourteenth Amendments of the United States Constitution.

2. Rational Basis

Even if this Court were to apply the more lenient, “rational basis” level of
scrutiny, the laws at issue in this case still fail to pass constitutional muster. Where
fundamental rights and suspect classes are not affected by challenged laws, courts apply

41
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981); see,
e.g., Palmore v. Sidoti, 466 U.S. 429, 432 (1984).
42
See, e.g., Harper, 383 U.S. at 670; and Kramer, 395 U.S. at 632-33.
43
Employment Div. v. Smith, 494 U.S. 872, 905-906 (1990).
44
United States v. Paradise, 480 U.S. 149, 167 (1987).
45
Palmore, 466 U.S. at 433.
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 13 of 31 PageID #: 344
the more permissive “rational basis” standard of review. Unlike strict scrutiny, rational
basis review is deferential to legislative discretion. Even facially discriminatory
classifications can be “upheld against equal protection challenge if there is any
reasonable conceivable state of facts that could provide a rational basis for the
classification.”
46
“Such a classification cannot run afoul of the Equal Protection Clause if
there is a rational relationship between the disparity of treatment and some legitimate
governmental purpose.”
47
Further, “courts are compelled under rational-basis review to
accept a legislature’s generalizations even when there is an imperfect fit between means
and ends.”
48

As deferential as rational basis review may be, it is still the government’s burden
to articulate a legitimate governmental purpose to justify the challenged legislation or
regulations. In other words, while the means may be given wide latitude, the ends must
still make sense. And in this case, Kentucky cannot articulate any legitimate purpose for
its blatant discrimination against the Plaintiffs, and the legislators who promulgated this
legislation certainly did not.
The preservation of tradition is one of the most common justifications for laws
which discriminate against gay and lesbian citizens. It is true that opposite-sex marriage
has been the only legally-recognized form of marriage in most U.S. states for a very long
time. However, the “ancient lineage of a legal concept does not give it immunity from
attack for lacking a rational basis.”
49
“[N]either the antiquity of a practice nor the fact of
steadfast legislative and judicial adherence to it through the centuries” can insulate a

46
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
47
Heller v. Doe, 509 U.S. 312, 320 (1993).
48
Id. at 321.
49
Id. at 326.
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 14 of 31 PageID #: 345
discriminatory law from “constitutional attack.”
50
Thus, tradition alone cannot form a
rational basis for discriminatory government action.
More pertinent to the matter before this Court, “[a]rbitrary and invidious
discrimination” cannot be a legitimate purpose.
51
And the government “may not rely on a
classification whose relationship to an asserted goal is so attenuated as to render the
distinction arbitrary or irrational.”
52
“[T]he governmental objective must be a legitimate
and neutral one.”
53
Classifications driven by animus against a minority are particularly
prone to constitutional attack because “bare congressional desire to harm a politically
unpopular group cannot constitute a legitimate governmental interest.”
54
The Virginia
statutes in Loving rested “solely upon distinctions drawn according to race,” for which
there was “patently no legitimate overriding purpose independent of invidious racial
discrimination which justifies the classification.”
55

In this case, the analogy should be obvious. The Court need only substitute one
minority group for another to see that the Kentucky and federal statutes at issue here rest
solely upon distinctions drawn according to sexual orientation, for which there is patently
no legitimate overriding purpose independent of invidious discrimination, and were
motivated by animus against homosexuals.
But the Court need not analogize; the question of laws which classify and exclude
homosexuals or otherwise single them out for unequal treatment has been addressed by

50
Williams v. Illinois, 399 U.S. 235, 239 (1970).
51
Loving, 388 U.S. 1, 10 (1967).
52
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985); see, e.g., Turner v.
Safley, 482 U.S. 78, 89-90 (1987).
53
Turner, 482 U.S. at 90.
54
United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (emphasis in
original).
55
388 U.S. at 11.
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the Supreme Court on several occasions. This Court should note that on every occasion
this issue has been presented to the high Court, no proponent has ever been able to
articulate or prove a single legitimate purpose for which such laws are a reasonable
means to achieve. Unable to survive even rational basis review, the Court has
consistently held such laws unconstitutional and declined to even consider whether strict
scrutiny is appropriate. For example, In Romer, the Supreme Court concluded that
Colorado’s constitutional amendment to exclude homosexuals from the protection of
anti-discrimination laws “failed, indeed defied, even the conventional inquiry” of rational
basis review.
56
Having considered numerous possible justifications for Colorado’s law,
the court dismissed all of them and concluded that it “classified homosexuals not to
further a proper legislative end but to make them unequal to everyone else.”
57
The Court
in Romer went on, quoting Moreno: “[A] bare desire to harm a politically unpopular
group cannot constitute a legitimate government interest.”
58

In Lawrence v. Texas, the Court considered a state law which criminalized
specific, private sexual behaviors common among consenting homosexual couples.
59

None of the state’s proposed justifications for the law convinced the Court, which even
proposed some possible legitimate purposes of its own (such as the protection of minors,
the prevention of coercion or injury, the regulation of public conduct, or the prohibition
of prostitution) but found none of these present in the language, purpose, or application of
the Texas law.
60
Applying rational basis review, the Court ruled that “[t]he Texas statute
furthers no legitimate state interest which can justify its intrusion into the personal and

56
517 U.S. at 631-32.
57
Id. at 635.
58
Id. at 634.
59
539 U.S. 558 (2003).
60
Id. at 578.
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private life of the individual” and was therefore unconstitutional.
61
Even in his dissent,
Justice Scalia acknowledged the obvious constitutional conflict presented by laws such as
those at issue here:
If moral disapprobation of homosexual conduct is “no legitimate state
interest" for purposes of proscribing that conduct; and if ... “[w]hen
sexuality finds overt expression in intimate conduct with another person,
the conduct can be but one element in a personal bond that is more
enduring;” what justification could there possibly be for denying the
benefits of marriage to homosexual couples exercising “[t]he liberty
protected by the Constitution?”
62


More recently, in the case of United States v. Windsor, the Supreme Court
considered the constitutionality of DOMA § 3, which defined marriage at the federal
level as an institution exclusive to opposite-sex couples.
63
The Court considered each
possible justification for the law but disregarded them all, instead finding that DOMA § 3
operated only to “demean those persons who are in a lawful same-sex marriage.”
64
In so
doing, “it violate[d] basic due process and equal protection principles...”
65
Relying on
language from cases that applied rational basis review such as Moreno and Romer
(though not mentioning the standard explicitly), the Court found the law
unconstitutional.
66
Further, “[w]hile the Fifth Amendment withdraws from the
Government the power to degrade or demean in the way this law does, the equal

61
Id.
62
Id. at 604-05 (SCALIA, J. dissenting; citations omitted).
63
133 S. Ct. 2675 (U.S. 2013).
64
Id. at 2695.
65
Id. at 2693.
66
Id. at 2695.
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protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all
the more specific and all the better understood and preserved.”
67

The analysis in this case should be no different from that in Romer, Lawrence, or
Windsor. Kentucky has not articulated, and cannot articulate, any basis for its laws other
than: 1) the supposed “antiquity of a practice,” i.e., the “traditional,” “biblical” marriage
envisioned by Senators McGaha and Worley; 2) a “bare desire” to do harm to
homosexuals; or 3) an excuse which is excessively and inextricably entangled with a
particular religion, as discussed below. None of these bases are permissible or “rational”
within the meaning of Supreme Court jurisprudence.

II. SECTION 233A VIOLATES THE ESTABLISHMENT CLAUSE

The First Amendment provides that “Congress shall make no law respecting an
establishment of religion . . .”
68
The First Amendment’s religion clauses both protect the
individual’s ability to exercise his or her own conscience, and also “guard against the
civic divisiveness that follows when the government weighs in on one side of religious
debate[.]”
69

“The touchstone for our analysis is the principle that the ‘First Amendment
mandates governmental neutrality between religion and religion, and between religion
and nonreligion.’”
70


Section 233A of the Kentucky Constitution violates these principles.
There has been substantial scholarly debate over the analytical framework for
assessing Establishment Clause cases since a conflicting pair of 2005 cases challenging

67
Id.
68
Like all other amendments contained in the Bill of Rights, the First Amendment is
made applicable to the states through the Fourteenth Amendment. Santa Fe Independent
School Dist. v. Doe, 530 U.S. 290 (2000).
69
McCreary Co. Ky. v. ACLU, 545 U.S. 844, 876 (2005).
70
Id. at 860 (quoting Epperson v. Arkansas, 393 U.S. 97 (1968)).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 18 of 31 PageID #: 349
Ten Commandments displays, ACLU v. McCreary County, Ky.
71
and Van Orden v.
Perry.
72

73

Any conflict in these two cases, however, is not implicated in this particular
challenge. The Court in McCreary Co. declined an invitation to abandon the
Establishment Clause test outlined in Lemon v. Kurtsman.
74
Although the Van Orden
plurality declined to apply the Lemon test, it did not abandon the test. Instead, its holding
was that “passive” government actions did not require the Lemon analysis.
75

Under Lemon, the first requirement to pass constitutional muster under the
Establishment Clause is that the government action must have a genuine secular purpose.
Second, the primary effect of the legislation must neither advance nor inhibit religion.
Third, the act must not foster an excessive government entanglement with religion.
76
On
at least five occasions (two of which involve Kentucky legislation), our highest Court has
found an impermissible religious purpose is enough to invalidate challenged legislation
under Lemon.
77
Indeed, the Court in McCreary Co. thoroughly rejected the government’s
request to remove purpose from the Establishment Clause analysis, calling purpose a
“staple of statutory interpretation . . . [.]”
78

This clear pronouncement alleviates any need to parse the many cases dealing
with a legislature that has articulated a secular purpose in order to conceal a religious

71
545 U.S. 844 (2005).
72
545 U.S. 677 (2005).
73
When weighting the precedential value of these two cases, it should be noted that Van
Orden was a plurality decision, while McCreary Co. had a majority.
74
403 U.S. 602 (1971).
75
See Van Orden, 454 U.S. 844.
76
Lemon, 403 U.S. at 612-613.
77
Stone v. Graham, 449 U.S. 39, 41, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per
curiam); Wallace v. Jaffree, 472 U.S. 38, 56-61, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985);
Edwards v. Aguillard, 482 U.S. 578, 586-593, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987);
Santa Fe, 530 U.S., at 308-309, 147 L. Ed. 2d 295, 120 S. Ct. 2266; McCreary Co. Ky v.
ACLU, 545 U.S. 844 (2005).
78
545 U.S. at 861.
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 19 of 31 PageID #: 350
motive. That is not the case here. It may be that other states enacting marriage restrictions
between same-sex couples expressed a secular desire to promote a narrow view of stable
family structure. That cannot be said for Kentucky’s constitutional amendment. The three
senators who spoke in favor of the amendment each offered particularized Biblical,
Judeo-Christian justifications for the bill. Indeed, the bill’s sponsor identified marriage as
an institution designed to promote “the greater glory of God.” In Edwards v. Aguillard,
the Court used a bill sponsor’s public comments as a basis for discerning the
impermissible religious purpose of a bill requiring creationism be taught in public
schools.
79
There is no need for conjecture when it comes to the purpose underlying
Section 233A. The only argument offered in favor of the bill was the furtherance of the
religious beliefs of the majority in the legislature.
The Court in McCreary Co. acknowledged the permissibility of Sunday closing
laws because of the minimal advancement of religion and the historical distance between
the religious motive of Sunday closing laws and the practical, secular purpose of a day
off.
80
But, the Court went on to say, “if the government justified its decision with a stated
desire for all Americans to honor Christ, the divisive thrust of the official action would be
inescapable.”
81
It may be that Christian marriages are viewed by Christians as furthering
God’s divine plan. However, marriage is not simply a religious institution in this country.
The state long ago determined that certain burdens and benefits granted and enforced by
the state would accompany this traditionally religious relationship. Since the state has
determined to grant married couples a secular social status, the institution itself cannot be
said to be an inherently religious one. When the government acts with the purpose of

79
482 U.S. 578, 586-588 (1987).
80
545 U.S. at 861.
81
Id.
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favoring religious preferences, it sends a clear message that the religious adherents are a
favored political class, and outsiders are “not full members of the political community.”
82

Since the stated purpose of the bill is to further the religious beliefs of the majority, the
amendment must be invalidated.

III. THE FIRST AMENDMENT'S GUARANTEE OF FREEDOM OF
ASSOCIATION INVALIDATES AND PROHIBITS ENFORCEMENT OF
THE LAWS AT ISSUE IN THIS CASE

Roberts v. United States Jaycees,
83
explicitly recognizes that the right to marry
and to enter into intimate relationships may be protected not only by the Fifth and
Fourteenth amendments, but also by the First Amendment's guarantee of freedom of
association. The right to intimate association primarily protects the right to marry and
other familial relationships, or, in the words of the Supreme Court, "those that attend the
creation and sustenance of a family—marriage, childbirth, the raising and education of
children, and cohabitation with one's relatives."
84

Courts that have considered the First Amendment issue have concluded that the
same level of scrutiny applied under a Due Process analysis should also apply to the First
Amendment.
85
Therefore, Plaintiff again urges the Court to apply the strict scrutiny
standard advocated above, but in any event recognize that the laws fail even rational basis

82
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (quoting Lynch v.
Donnelly, 465 U.S. 668, 688 (1984)(O’Connor, J., concurring)).
83
468 U.S. 609, 617-19 (1984).
84
Roberts, 468 U.S. at 619 (Internal citations omitted).
85
Cross v. Balt. City Police Dep't, 213 Md. App. 294, 308 (Md. Ct. Spec. App.
2013)(citing Windsor); Wolford v. Angelone, 38 F. Supp. 2d 452 (W.D. Va. 1999); Parks
v. City of Warner Robins, 43 F.3d 609, 615 (11th Cir. 1995).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 21 of 31 PageID #: 352
review.
86
“[A] regulation cannot be sustained where the logical connection between the
regulation and the asserted goal is so remote as to render the policy arbitrary or
irrational.”
87

Of particular interest is the analysis set forth by the Michigan District Court in
Briggs v. North Muskegon Police Dep't.
88
Decades before Romer, Lawrence, and
Windsor, the court identified bedrock constitutional principles that operate with no less
force today. Briggs involved the privacy and association interests of non-married couples.
The Court expressed suspicion of any attempt to regulate “choices concerning family
living arrangements.”
89

As Justice Powell stated in Moore, extending constitutional protection beyond
the traditional family, "unless we close our eyes to the basic reasons why
certain rights associated with the family have been accorded shelter under the
Fourteenth Amendment's Due Process Clause, we cannot avoid applying the
force and rationale of these precedents to the family choice involved in this
case." 431 U.S. at 501.
90

The Court went on to apply strict scrutiny to the statute, and rejected the state’s
justification:
This Court rejects the notion that an infringement of an important
constitutionally protected right is justified simply because of general
community disapproval of the protected conduct. The very purpose of
constitutional protection of individual liberties is to prevent such

86
See, e.g., Via v. Taylor, 224 F. Supp. 2d 753 (D. Del. 2002) (applying both
intermediate and rational basis scrutiny and concluding that the state's infringement upon
a prison guard's right to marry a former inmate could withstand neither).
87
Id. at 764, citing Turner v. Safley, 482 U.S. 78 (U.S. 1987). See also Wolford, 38 F.
Supp. 2d at 463 ("[W]here a policy does not order individuals not to marry, nor . . .
directly and substantially interfere with the right to marry, the plaintiff has failed to show
that the regulation infringes on either the right to marry or the First Amendment right of
intimate association.") (Internal quotations omitted)).
88
563 F. Supp. 585 (W.D. Mich. 1983), affirmed by the Sixth Circuit, 746 F.2d 1475 (6th
Cir. 1984), cert. denied 473 U.S. 909 (1985).
89
Id. at 588 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977)).
90
Id. at 589.
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 22 of 31 PageID #: 353
majoritarian coercion.
91

On the basis of these longstanding, long-recognized constitutional principles, the
Briggs court found that a public employee's right to freedom of association protected him
from discipline based upon an intimate relationship, even though he was unmarried. Even
if one does not take into account the concept of “evolving standards of decency that mark
the progress of a maturing society,” which has been a central idea in the Supreme Court's
jurisprudence,
92
there is ample support in case law that is now thirty years old suggesting
that even a “non-traditional” relationship cannot be impeded by the state without
adequate justification. The obstinate refusal to recognize Plaintiffs' lawful marriages
“directly and substantially interferes” with Plaintiffs' right to intimately associate with
whomever they choose.
93
The state can offer no justification for its intrusion.
IV. THE PROVISIONS OF KENTUCKY LAW AND SECTION 2 OF DOMA
VIOLATE THE FULL FAITH AND CREDIT CLAUSE
The Full Faith and Credit Clause of the federal Constitution states:
Full Faith and Credit shall be given in each State to the public Acts,
Records, and Judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such
Acts, Records and Proceedings shall be provided, and the Effect
thereof.
94


Pursuant to this Clause, Congress enacted 28 U.S.C. § 1738 which states, in pertinent
part:
The records and judicial proceedings of any court of any such State,
Territory or Possession, or copies thereof . . . shall have the same full
faith and credit in every court within the United States and its
Territories and Possessions as they have by law or usage in the courts
of such State, Territory or Possession from which they are taken.

91
Id. at 590.
92
See, e.g., Trop v. Dulles, 356 U.S. 86, 101 (1958).
93
Wolford, 38 F. Supp. 2d at 463
94
U.S. Const. art. IV, § 1.
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Further, Article IV, § 2 provides: “The citizens of each state shall be entitled to all
privileges and immunities of citizens in the several states.”
95

The “animating purpose of the full faith and credit command,” was “to make [the
several states] integral parts of a single nation throughout which a remedy upon a just
obligation might be demanded as of right, irrespective of the state of its origin.”
96
In
effect, the Full Faith and Credit Clause imposes a constitutional “rule of decision” on
state courts; that is, “a rule by which courts ... are to be guided when a question arises in
the progress of a pending suit as to the faith and credit to be given by the court to the
public acts, records, and judicial proceedings of a State other than that in which the court
is sitting.”
97
The “rule of decision” is that the forum state shall give full faith and credit
to those acts, records, and proceedings of the sister state.
Few U.S. Supreme Court decisions address the Full Faith and Credit Clause. It is
therefore useful to reexamine the original intent and actual text of the constitutional
provision. James Madison's early draft read: “Full faith shall be given in each State to the
acts of the Legislatures, and to the records and judicial proceedings of the Courts and
Magistrates of every other State.”
98
And another version was proposed: “Whensoever the
act of any State, whether legislative [,] executive[,] or judiciary[,] shall be attested and
exemplified under the seal thereof, such attestation and exemplification shall be deemed
in other State[s] as full proof of the existence of that act -- and its operation shall be

95
U.S. Const. art. IV, §§ 1-2.
96
Baker by Thomas v. General Motors Corp., 522 U.S. 222, 232 (1998); see also Estin v.
Estin, 334 US 541, 546 (1948) (the Full Faith and Credit Clause “substituted a command
for the earlier principles of comity and thus basically altered the status of the States as
independent sovereigns”).
97
Thompson v. Thompson, 484 U.S. 174, 182-183 (1988).
98
The Records of the Federal Convention of 1787 Vol.4 Art.4 Sec.l Doc.4 (Max Farrand
ed., Yale University Press 1937).
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binding in every other State.”
99
Thus, the Full Faith and Credit Clause was originally
intended to be quite expansive in its requirement that each state honor the laws and
actions of other states.
At the Philadelphia Convention, a draft was submitted based on Madison's
version, which read: “Full faith and credit ought to be given in each state to the public
acts, records, and judicial proceedings, of every other state; and the legislature shall, by
general laws, prescribe the manner in which such acts, records, and proceedings, shall be
proved, and the effect which judgments, obtained in one state, shall have in another.”
100

Gouverneur Morris proposed amending this draft, to replace all the wording after “effect”
with “thereof.”
101
There was concern that this might authorize Congress to modify the
effect of legislative acts. Critically, support for Morris's amendment was offered only
with the understanding that Congress's power was limited to prescribing the effect of
judgments.
102
The provision was further amended to change “ought to” to “shall,” in the
first clause, making “full faith and credit” mandatory; and “shall” was replaced with
“may” in the second clause-making Congress's ability to “prescribe” merely
permissive.
103
In other words, the Founders' intent was still to require each state to give
“full faith and credit” to the operative effect of the laws – particularly the legislation –
of other states, and to diminish Congress's ability to alter this obligation.

99
Id.
100
James Madison, Debates on the Adoption of the Federal Constitution 503-504 (J.B.
Lippincott & Co. 1861) (1787), available at http://bit.ly/pH8R6J. (The creation of the
links to the secondary sources cited herein, and much of the argument in this section, are
to be credited to able counsel for the Petitioner in In re Marriage of J.B. & H.B., 326
S.W.3d 654 (Tex. App. Dallas 2010) (petition for review granted by the Texas Supreme
Court, In re Marriage of J.B., 2013 Tex. LEXIS 608 (Tex., Aug. 23, 2013))).
101
Id.
102
Id.
103
Id. see U.S. Const. art. IV, § 1.
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Thus, by parsing the intent of the Founders and the plain language of the
Constitution, a number of conclusions relevant to the instant case may be reached. First, a
state legislature cannot pass a law with the express purpose of ignoring the laws and
records of a sister state. By allowing the Commonwealth to give no recognition
whatsoever to Plaintiffs' out-of-state marriages, KRS 405.040(2), KRS 405.045, and Ky.
Const. §233A violate the Full Faith and Credit Clause. Moreover, insofar as these
provisions deny access to Kentucky courts for divorce or other proceeding premised upon
a valid marriage, they violate the Privileges and Immunities Clause as well. Refusing
access to the benefits enjoyed by other lawfully married couples, including divorce,
creates conflict and confusion between the states and violates Full Faith and Credit by
discriminating against the laws of other states “under the guise of merely affecting the
remedy.”
104

Additionally, it must be concluded that DOMA's limitation on a state's obligation
to give full faith and credit to a marriage legally created in another state should be
invalidated. Section 2 of DOMA (28 U.S.C. 1738C) purports to enable states to escape
their obligations under Full Faith and Credit when it comes to same-sex marriage. But the
plain text of the enforcement provision of the Constitution itself states that Congress may
only prescribe (a) “the manner in which” the acts, records, and proceedings of other states
“shall be proved,” which plainly refers to evidentiary matters, and (b) “the effect
thereof.”
105
DOMA appears to have nothing to say about (a) and instead focuses on (b),
purporting to relieve the states of any obligation “to give effect” to an act, record, or

104
See Broderick v. Rosner, 294 U.S. 629, 642-643 (1935).
105
U.S. Const. art. IV, § 1.
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proceeding that creates or recognizes a same-sex marriage.
106
Thus, on its face, DOMA
would allow states to give no effect whatsoever to the marriage laws and records of a
sister state. Such action flies in the face of both the plain language and the original intent
of the Full Faith and Credit Clause (to say nothing of the plain language of 28 U.S.C. §
1738). Section 2 of DOMA, like the Kentucky provisions considered herein, must be
declared unconstitutional.

V. THE SUPREMACY CLAUSE BARS KENTUCKY FROM
INTERPRETING LAWS AFFECTING SAME-SEX MARRIAGE IN A
MANNER CONTRARY TO THE DECISIONS OF THE U.S. SUPREME
COURT

The U.S. Constitution, art. VI, Cl 2 states: “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.” As such, “[t]he Constitution of the
United States and all laws enacted pursuant to the powers conferred by it on the Congress
are the supreme law of the land (U. S. Const., art. VI, sec. 2) to the same extent as though
expressly written into every state law.”
107
State constitutions and amendments thereto are
no less subject to the applicable prohibitions and limitations of the Federal
Constitution.
108
The proper interpretation of the U.S. Constitution is, of course, set forth

106
28 U.S.C. § 1738C.
107
People ex rel. Happell v. Sischo, 23 Cal. 2d 478, 491 (Cal. 1943) (citing Hauenstein v.
Lynham, 100 U.S. 483, 490 (1880); Florida v. Mellon, 273 U.S. 12, 17 (1927).)
108
See, e.g., Harbert v County Court, 39 S.E.2d 177 (W.Va. 1946); Gray v Moss, 156 So.
262 (Fla. 1934); Gray v Winthrop, 156 So. 270 (Fla. 1934).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 27 of 31 PageID #: 358
by the United States Supreme Court. The decisions of the nation's high court are thus
conclusive and binding on state courts.
109

With these basic principles in mind, the Supreme Court's opinion in Windsor sets
forth the constitutional standard by which laws which hinder same-sex marriage should
be evaluated. Justice Kennedy writes:
The power the Constitution grants it also restrains. And though Congress has
great authority to design laws to fit its own conception of sound national
policy, it cannot deny the liberty protected by the Due Process Clause of the
Fifth Amendment.
What has been explained to this point should more than suffice to establish
that the principal purpose and the necessary effect of this law are to demean
those persons who are in a lawful same-sex marriage. This requires the Court
to hold, as it now does, that DOMA is unconstitutional as a deprivation of the
liberty of the person protected by the Fifth Amendment of the Constitution.
The liberty protected by the Fifth Amendment’s Due Process Clause contains
within it the prohibition against denying to any person the equal protection of
the laws. . . . While the Fifth Amendment itself withdraws from Government
the power to degrade or demean in the way this law does, the equal protection
guarantee of the Fourteenth Amendment makes that Fifth Amendment right
all the more specific and all the better understood and preserved.
110

There is much back and forth between the majority and the dissents in Windsor
about whether the opinion is about federalism, due process, equal protection, or
something else. For these purposes, it is important to note that Justice Kennedy clearly
articulates two separate constitutional grounds for the majority opinion (i.e., the Fifth and
Fourteenth amendments), and that these constitutional grounds are implicated by the
government's infringement upon individual rights.

109
See Thompson v. Atlantic C. L. R. Co., 38 SE2d 774 (Ga. 1946), aff'd 332 U.S. 168
(1947); Walker v. Gilman, 171 P2d 797 (Wash. 1946); Chicago, R. I. & P. R. Co. v S. L.
Robinson & Co., 298 SW 873 (Ark. 1927); Weber Showcase & Fixture Co. v. Co-Ed
Shop, 56 P.2d 667 (Ariz. 1936); Pennsylvania Rubber Co. v. Brown, 143 A. 703 (N.H.
1928); Lawyers' Coop. Publishing Co. v Bauer, 244 NW 327 (S.D. 1932).
!!?
Windsor, 133 S. Ct. at 2695 (2013) (internal citations omitted).
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Finally, it is worth pointing out that the handful of lower-court opinions that have
analyzed Windsor have interpreted its holding as one of basic individual rights under the
Constitution.
111
This conclusion is shared by other district courts within the Sixth
Circuit.
112
And finally, legal scholars agree with this view as well.
113
For this reason, it
matters little whether Windsor is characterized as a federalism case, an equal protection
case, or a substantive due process case. The obvious point of the decision is that those
individual rights are protected by the Federal Constitution, and therefore cannot be
circumvented by any statute or state constitution. Quite simply, regardless of the proper
amendment or analysis to be applied, Windsor stands for the proposition that a lawful
same-sex marriage must be recognized by the government. It is beyond cavil that the
Supreme Court is the final arbiter of the scope of such individual rights under the U.S.
Constitution. Therefore, a state may not impose its own interpretation of the Constitution
to exclude recognition of same-sex marriage without ignoring the holding in Windsor,
and thereby violating the Supremacy Clause.
Nonetheless, this is precisely what Kentucky continues to do by enforcing its
discriminatory statutes and Ky. Const. § 233A. The “principal purpose and necessary

111
See, e.g., Jenkins v. Miller, 2013 U.S. Dist. LEXIS 152846, 6-78 (D. Vt. Oct. 24,
2013); Cross v. Balt. City Police Dep't, 213 Md. App. 294, 308-309 (Md. Ct. Spec. App.
2013).
112
See Obergefell v. Kasich, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio July 22, 2013)
(Exhibit 1) (“Under Supreme Court jurisprudence, states are free to determine conditions
for valid marriages, but these restrictions must be supported by legitimate state purposes
because they infringe on important liberty interests around marriage and intimate
relations.”).
113
See, e.g., Douglas NeJaime, Windsor's Right to Marry, 123 YALE L.J. ONLINE 219
(2013), http://yalelawjournal.org/2013/9/15/nejaime.html (“Reading Windsor as a right-
to-marry case has important implications for fundamental rights jurisprudence. The view
of marriage that Justice Kennedy embraces suggests that the fundamental right to marry
as presently understood safeguards a right that applies with equal force to same-sex
couples.”).
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 29 of 31 PageID #: 360
effect” of Kentucky's laws, no less than DOMA, is to “demean those persons who are in a
lawful same-sex marriage.” All plaintiffs in this case (save the minor children) have
entered into lawful same-sex marriages. Because of the Supremacy Clause, Kentucky is
not allowed to tell these plaintiffs that the scope of their rights as married persons is
anything less than what the U.S. Constitution provides. For now, Windsor is the final
word as to what the Constitution provides, and clearly prohibits Kentucky's enforcement
of its discriminatory laws.

CONCLUSION
Plaintiffs are entitled to immediate and permanent injunctive relief. Kentucky’s
discriminatory laws violate multiple Constitutional protections, any one of which can
serve as a basis for the Court granting Plaintiffs’ Motion.




Respectfully submitted,



/s/ Laura E. Landenwich
Laura E. Landenwich
Daniel J. Canon
L. Joe Dunman
Louis P. Winner
CLAY DANIELWALTON & ADAMS PLC
101 Meidinger Tower
462 South Fourth Street
Louisville, KY 40202
(502) 561-2005 – phone
(502) 415-7505 - fax
[email protected]
[email protected]
Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 30 of 31 PageID #: 361
[email protected]
Co-Counsel for Plaintiffs

and

Shannon Fauver
Dawn Elliott
FAUVER LAW OFFICE PLLC
1752 Frankfort Avenue
Louisville, KY 40206
(502) 569-7710
Co-counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on December 16, 2013 I electronically filed the foregoing
with the clerk of the court by using the CM/ECF system, which will send a notice of
electronic filing to the following:

Clay A. Barkley
Brian Judy
Assistant Attorney Generals
Office of the Attorney General
Suite 118
700 Capital Avenue
Frankfort, KY 40601
Counsel for Defendant Steve Beshear and
Jack Conway


/s/ Laura E. Landenwich











Case 3:13-cv-00750-JGH Document 38-1 Filed 12/16/13 Page 31 of 31 PageID #: 362


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JAMES OBERGEFELL, et al. : Case No. 1:13-cv-501
:
Plaintiffs, :
: Judge Timothy S. Black
vs. :
:
JOHN KASICH, et al. :
:
Defendants. :


ORDER GRANTING PLAINTIFFS’ MOTION FOR
A TEMPORARY RESTRAINING ORDER

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.
Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized
outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example,
under Ohio law, out-of-state marriages between first cousins are recognized by Ohio,
even though Ohio law does not authorize marriages between first cousins. Likewise,
under Ohio law, out of state marriages of minors are recognized by Ohio, even though
Ohio law does not authorize marriages of minors.
How then can Ohio, especially given the historical status of Ohio law, single out
same sex marriages as ones it will not recognize? The short answer is that Ohio cannot ...
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at least not under the circumstances here.
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."
The end result here and now is that the local Ohio Registrar of death certificates is
hereby ORDERED not to accept for recording a death certificate for John Arthur that
does not record Mr. Arthur’s status at death as "married" and James Obergefell as his
"surviving spouse."
I. AGREED FACTS AND CIRCUMSTANCES
Less than a month ago, on June 26, 2013, the United States Supreme Court issued
its historic decision in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013). The
Supreme Court held that the federal Defense of Marriage Act (“DOMA”), which denied
recognition to same-sex marriages for purposes of federal law, was unconstitutional, as it
denied fundamental fairness and equal protection of the law to gay citizens. While the
holding in Windsor is ostensibly limited to a finding that the federal government cannot
refuse to recognize state laws authorizing same sex marriage, the issue whether States can
refuse to recognize out-of-state same sex marriages is now surely headed to the fore.
Indeed, just as Justice Scalia predicted in his animated dissent, by virtue of the present
lawsuit, “the state-law shoe” has now dropped in Ohio. Windsor, 133 S.Ct. at 77-78.
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Plaintiffs James Obergefell and John Arthur are male Cincinnati residents who
have been living together in a committed and intimate relationship for more than twenty
years, and they were very recently legally married in the state of Maryland pursuant to
the laws of Maryland recognizing same sex marriage.
Mr. Arthur is currently a hospice patient. He is dying of amyotrophic lateral
sclerosis (“ALS”). ALS is a progressive disease that has caused Mr. Arthur severe and
worsening muscle deterioration, has no known cure, and is fatal.
On July 11, 2013, Plaintiffs traveled to Maryland in a special jet equipped with
medical equipment and a medical staff necessary to serve Mr. Arthur’s needs, whereupon
Plaintiffs were married in the jet as it sat on the tarmac in Anne Arundel County,
Maryland. They returned to Cincinnati that same day.
Plaintiffs’ marriage is legally recognized in Maryland and by the federal
government by virtue of the very recent and historic decision of the United States
Supreme Court in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013).
Plaintiffs’ marriage is not recognized in Ohio, as legal recognition of same-sex marriages
is prohibited by Ohio law enacted in 2004. See Ohio Rev. Code. § 3101.01(C )(2)&(3)
and Ohio Constitution Art. XV, §11.
Mr. Arthur is certain to die soon. Consistent with Ohio law, his death record will
list his “marital status at time of death” as “unmarried” and will not record Mr.
Obergefell as the “surviving spouse.”

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II. PLAINTIFFS’ MOTION
Plaintiffs seek an order of this Court declaring unconstitutional the Ohio laws
forbidding recognition of legal same sex marriages from other states and requiring the
Registrar of Ohio death certificates to record John Arthur as "married" and to record
James Obergefell as his "surviving spouse" at the time of Mr. Arthur’s death, which is
imminent.
III. STANDARD OF REVIEW
In determining whether to grant injunctive relief, this Court must weigh four
factors: (1) whether the moving party has shown a strong likelihood of success on the
merits; (2) whether the moving party will suffer irreparable harm if the injunction is not
issued; (3) whether the issuance of the injunction would cause substantial harm to others;
and (4) whether the public interest would be served by issuing the injunction. Overstreet
v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). These four
considerations are factors to be balanced, not prerequisites that must be met. McPherson
v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir. 1997), and there is
no “rigid and comprehensive test for determining the appropriateness of preliminary
injunctive relief.” Tate v. Frey, 735 F.2d 986, 990 (6th Cir. 1984).
Plaintiffs bear the burden of demonstrating their entitlement to a preliminary
injunction, and an “injunction is an extraordinary remedy which should be granted only if
the movant carries his or her burden of proving that the circumstances clearly demand it.”
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Overstreet, 305 F.3d at 513. In the Sixth Circuit, “[t]he standard for issuing a temporary
restraining order is logically the same as for a preliminary injunction with emphasis,
however, on irreparable harm[.]” Reid v. Hood, No. 1:10 CV 2842, 2011 U.S. Dist.
LEXIS 7631, at *2 (N.D. Ohio Jan 26, 2011) (citing Motor Vehicle Bd. of Calif. v. Fox,
434 U.S. 1345, 1347 n.2 (1977)). Moreover, “[a]lthough no one factor is controlling, a
finding that there is simply no likelihood of success on the merits is usually fatal.”
Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
Even if the court is not certain that a plaintiff is likely to succeed on the merits, a
preliminary injunction is still appropriate where the plaintiff shows “‘serious questions
going to the merits and irreparable harm which decidedly outweighs any potential harm
to the defendant’” or if “the merits present a sufficiently serious question to justify further
investigation.” In re DeLorean Motor Co., 755 F.2d 1223, 1229-30 (6th Cir. 1985)
(quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.
1982)).
IV. ANALYSIS
The Fourteenth Amendment to the Constitution of the United States provides that
“No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. Amend. XIV.

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Plaintiffs, a same-sex couple, are legally married in Maryland. They reside in
Ohio where their marriage is not recognized as valid. They are treated differently than
they would be if they were in a comparable opposite-sex marriage. By treating lawful
same sex marriages differently than it treats lawful opposite sex marriages (e.g.,
marriages of first cousins and marriages of minors), Plaintiffs assert that the Ohio laws
barring recognition of out-of-state same sex marriages, enacted in 2004, violate equal
protection.
Although the law has long recognized that marriage and domestic relations are
matters generally left to the states, see Ex parte Burrus, 136 U.S. 586, 593-94 (1890), the
restrictions imposed on marriage by states, however, must nonetheless comply with the
Constitution. Loving v. Virginia, 388 U.S. 1, 12 (1967) (statute limiting marriage to
same-race couples violated equal protection and due process); Zablocki v. Redhail, 434
U.S. 374, 383 (1978) (statute restricting from marriage persons owing child support
violated equal protection).
In Windsor, the Supreme Court again applied the principle of equal protection to a
statute restricting marriage when it reviewed the constitutionality of the federal Defense
of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for
purposes of federal law. This included marriages from the twelve states and District of
Columbia in which same-sex couples could legally marry. The Supreme Court held that
the federal law was unconstitutional because it violated equal protection and due process
principles guaranteed by the Fifth Amendment. Windsor, 133 S. Ct. at 2675.
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In reality, the decision of the United States Supreme Court in Windsor was not
unprecedented as the Supreme Court relied upon its equal protection analysis from an
earlier case, where, in 1996, the Court held that an amendment to a state constitution,
ostensibly just prohibiting any special protections for gay people, in truth violated the
Equal Protection Clause, under even a rational basis analysis. Romer v. Evans, 517 U.S.
620 (1996).
In Romer, the Supreme Court struck down Colorado’s Amendment 2 because, the
Court held, “[w]e cannot say that Amendment 2 is directed to any identifiable legitimate
purpose or discrete objective. It is a status-based enactment divorced from any factual
context from which we could discern a relationship to legitimate state interests; it is a
classification of persons undertaken for its own sake, something the Equal Protection
Clause does not permit.” Id. at 635. The Supreme Court deemed this “class legislation ...
obnoxious to the prohibitions of the Fourteenth Amendment.” Id. (quoting Civil Rights
Cases, 109 U.S. 3, 24 (1883)).
As the Supreme Court in Romer held so succinctly: [Colorado law] “classifies
homosexuals not to further a proper legislative end but to make them unequal to everyone
else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to
its laws. Amendment 2 violates the Equal Protection Clause[.]” 517 U.S. at 635-36.
As the Supreme Court explained in striking down DOMA, “[t]he avowed purpose
and practical effect of the law here in question are to impose a disadvantage, a separate
status, and so a stigma upon all who enter into same-sex marriages made lawful by the
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unquestioned authority of the States.” Windsor, 133 S. Ct. at 2693.
Similarly, in Windsor, the Supreme Court cited U. S. Dept. of Agriculture v.
Moreno, 413 U.S. 528 (1973), for the proposition that a legislative desire to harm a
politically unpopular group of people cannot justify disparate treatment of that group.
Windsor, 133 S. Ct. at 2693. In Moreno, a federal statute prohibiting households
containing “unrelated persons” from qualifying for food stamps was held to be in
violation of the Equal Protection Clause under a rational basis analysis. The legislative
purpose of the statute was to prohibit “hippies” from taking advantage of food stamps.
The Supreme Court held that “the classification here … is wholly without any rational
basis.” Moreno, 413 U.S. at 538. Likewise, in Windsor, the Supreme Court held that the
purpose of the federal DOMA was “to impose inequality, not for other reasons like
governmental efficiency.” 133 S. Ct. at 2694.
Under Supreme Court jurisprudence, states are free to determine conditions for
valid marriages, but these restrictions must be supported by legitimate state purposes
because they infringe on important liberty interests around marriage and intimate
relations.
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.

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As a threshold matter, it is absolutely clear that under Ohio law, from the founding
of the State through at least 2004, the validity of an opposite-sex marriage is to be
determined by whether it complies with the law of the jurisdiction where it was
celebrated. That is, a marriage solemnized outside of Ohio is valid in Ohio if it is valid
where solemnized. Thus the leading compendium of Ohio law states:
“Generally, a marriage solemnized outside of Ohio is valid in Ohio if it is valid
where solemnized. Thus, the validity of a common-law marriage is determined by the
law of the state where it was consummated, and that of a solemnized marriage by the law
of the state where it was contracted. Likewise, a marriage created in a foreign nation is
valid according to that nation's laws. […] The fact that the parties to a marriage left the
state to marry in order to evade Ohio's marriage laws is immaterial to the marriage’s
validity in Ohio.” See 45 Ohio Jur. 3d Family Law § 11.
Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is
valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the
longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the
contracting controls. Ohio has adopted this legal approach from its inception as a State.
Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in
1958, out-of-state marriages between first cousins are recognized by Ohio, even though
Ohio law does not authorize marriages between first cousins. Mazzolini v. Mazzolini, 155
N.E.2d 206, 208 (Ohio Sup. Ct. 1958) (marriage of first cousins was legal in Mass-
achusetts and therefore is legal in Ohio regardless of the Ohio statute to the contrary).
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Likewise, under Ohio law, out-of-state marriages of minors are recognized by
Ohio, even though Ohio law does not authorize marriages of minors. See Hardin v.
Davis, 16 Ohio Supp. 19, at *22 (Com. Pl. Hamilton Co. May 18, 1945) (“But, although
first cousins cannot marry in Ohio, it has been held that if they go to another state where
such marriages are allowed, marry, and return to Ohio, the marriage is legal in Ohio”);
see also Slovenian Mut. Ben. Ass’n v. Knafelj, 173 N.E. 630, 631 (Ohio App. 1930) (“It is
true that, under the laws of Ohio, if she were his first cousin he could not marry her; but
they could go to the state of Michigan, or the state of Georgia, and perhaps many other
states in the United States, and intermarry, and then come right back into Ohio and the
marriage would be legal”); see also Peefer v. State, 182 N.E. 117, 121 (Ohio App. 1931)
(where underage couples leave the state to marry in a state in which their marriage is
valid and return to Ohio, the marriage cannot be set aside based on Ohio’s law against
marriage of underage people); see also Courtright v. Courtright, 1891 Ohio Misc. LEXIS
161, at *7, aff’d without opinion, 53 Ohio 685 (Ohio 1895) (marriage between persons
considered underage in Ohio married in a state where their marriage is legal “cannot be
set aside, either because it was not contracted in accordance with the law of this state, or
because the parties went out of the state for the purpose of evading the laws of this
state”).
Quintessentially, Plaintiffs have established a substantial likelihood that they will
prevail at trial on their claim that by treating lawful same sex marriages differently than it
treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of
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11

minors), Ohio law, as applied here, 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."
Moreover, as the United States Supreme Court found in Windsor, there is no
legitimate state purpose served by refusing to recognize same-sex marriages celebrated in
states where they are legal. Instead, as in Windsor, and at least on this early record here,
the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a
separate status, and so a stigma upon all who enter into same-sex marriages made lawful
by the unquestioned authority of the States.” Windsor, 133 S.Ct. at 2639. The 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. See Windsor, 133 S.Ct. at
2694; see Romer, 517 U.S. at 635-36. It is beyond cavil that it is constitutionally
prohibited to single out and disadvantage an unpopular group.
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:

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“Marriage is a coming together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political faiths;
a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.”

Zablocki v. Redhail, 434 U.S. 374, 384, (1978) (citing Griswold v. Connecticut, 381 U.S.
479, 486 (1965)). Even if the classification of same-sex couples legally married in other
states is reviewed under the least demanding rational basis test, this Court on this record
cannot find a rational basis for the Ohio provisions discriminating against lawful, out-of-
state same sex marriages that is not related to the impermissible expression of
disapproval of same-sex married couples.
Consequently, Plaintiffs have demonstrated a strong likelihood of success on the
merits.
Moreover, denying Plaintiffs their associational rights under the circumstances
presented here imposes irreparable harm. Constitutional violations are routinely
recognized as triggering irreparable harm unless they are promptly remedied. See, e.g.,
Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of constitutional “freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury”). As stated, rights
associated with marriage are fundamental. Zablocki, 434 U.S. at 374. Thus, this Court
has routinely concluded that “Plaintiffs will suffer irreparable harm if the Court does not
issue the injunction because of the threatened infringement of the Plaintiffs' fundamental
rights.” See, e.g., Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 838 F.
Supp. 1235, 1242-43 (S.D. Ohio 1993) rev’d and vacated, 54 F.3d 261 (6th Cir. 1995)
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cert. granted, judgment vacated, 518 U.S. 1001 (1996). In fact, “when an alleged
deprivation of a constitutional right is involved, most courts hold that no further showing
of irreparable injury is necessary.” § 11A Fed. Prac. & Proc. Civ. § 2948.1 (2d ed.).
1

In addition to the alleged denial of Plaintiffs’ constitutional rights, the Court must
also consider the fact that Mr. Arthur is in hospice care and death is imminent. Without a
temporary restraining order, the official record of Mr. Arthur’s death, and the last official
document recording his existence on earth, will incorrectly classify him as unmarried,
despite his legal marriage to Mr. Obergefell. The death certificate will also incorrectly
fail to record Mr. Obergefell as the “surviving spouse,” which status he lawfully enjoys.
Furthermore, Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery.
He also wants Mr. Obergefell to be buried next to him someday. The family plot
directive limits those who may be interred in the plot to descendants and married spouses.
Thus, without a temporary restraining order, Mr. Arthur’s burial may be delayed or his

1
See, e.g., Overstreet, 305 F.3d at 578 (6th Cir. 2002) (a plaintiff can demonstrate that a denial
of an injunction will cause irreparable harm if the claim is based upon a violation of plaintiff’s
constitutional rights); ACLU of KY v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir.
2003) (if it is found that a constitutional right is being threatened or impaired, a finding of
irreparable injury is mandated); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.
1998) (recognizing that the loss of First Amendment rights, for even a minimal period of time,
constitutes irreparable harm) (citations omitted); Council of Alternative Political Parties v.
Hooks, 121 F.3d 876 (3rd Cir. 1997) (denial of preliminary injunctive relief was irreparable harm
to plaintiffs’ voting and associational rights); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992)
(holding that plaintiffs may establish irreparable harm based on an alleged violation of their
Fourth Amendment rights); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) (finding that
a violation of privacy constitutes an irreparable harm); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d
Cir. 1984) (holding allegation of violation of Eighth Amendment rights sufficient showing of
irreparable harm); Doe v. Mundy, 514 F.2d 1179 (7th Cir 1975) (denial of constitutional privacy
right was irreparable harm); Beerheide v. Zavaras, 997 F.Supp. 1405 (D.C. Colo. 1998)
(irreparable harm satisfied by allegation of deprivation of free exercise of religion).
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remains may have to be exhumed when this case is finally decided. See Yankton Sioux
Tribe v. U.S. Army Corps of Engineers, 209 F. Supp. 2d 1008, 1022 (D.S.D. 2002)
(disruption of human remains can be irreparable harm).
Finally, the uncertainty around this issue during Mr. Arthur’s final illness is the
cause of extreme emotional hardship to the couple. Dying with an incorrect death
certificate that prohibits Mr. Arthur from being buried with dignity constitutes irreparable
harm. Furthermore, Mr. Arthur’s harm is irreparable because his injury is present now,
while he is alive. A later decision allowing an amendment to the death certificate cannot
remediate the harm to Mr. Arthur, as he will have passed away.
Moreover, there is absolutely no evidence that the State of Ohio or its citizens will
be harmed by the issuance of an order temporarily restraining the enforcement of these
provisions against the Plaintiffs in this case. No one beyond Plaintiffs themselves will be
affected by such a limited order at all. Without an injunction, however, the harm to
Plaintiffs is severe. Plaintiffs are not currently accorded the same dignity and recognition
as similarly situated opposite-sex couples. Moreover, upon Mr. Arthur’s death,
Plaintiffs’ legally valid marriage will be incorrectly recorded in Ohio as not existing.
Balanced against this severe and irreparable harm to Plaintiffs is the truth that there is no
evidence in the record that the issuance of a preliminary injunction would cause
substantial harm to the public.
And, as a final consideration, “the public interest is promoted by the robust
enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban 15
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Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir. 2012).
Weighing all factors applicable to analyzing whether injunctive relief should issue,
the Court finds that each factor supports the granting of a temporary restraining order.
V. CONCLUSION
This Court finds that Plaintiffs have established by clear and convincing evidence
their entitlement to injunctive relief. Accordingly, Plaintiffs’ motion for a temporary
restraining order (Doc. 3) is GRANTED, and a temporary restraining order shall issue by
separate order, directing, inter alia, that the local Ohio Registrar of death certificates is
hereby ORDERED not to accept for recording a death certificate for John Arthur which
does not record his status as "married" and/or does not record James Obergefell as Mr.
Arthur’s "surviving spouse” at the time of Mr. Obergefell’s death, which is imminent.
IT IS SO ORDERED.
Date: July 22, 2013 /s/ Timothy S. Black
Timothy S. Black
United States District Judge
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EXHIBIT 6

****************

Video footage of Kentucky State Senate proceedings, March 11, 2004 filed with this Court
on DVD.



Case 3:13-cv-00750-JGH Document 38-7 Filed 12/16/13 Page 1 of 1 PageID #: 401


No. 12-144
In The
Supreme Court of the United States
DENNIS HOLLINGSWORTH, ET AL., Petitioners,
v.
KRISTIN M. PERRY, ET AL., Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF OF THE AMERICAN PSYCHOLOGICAL
ASSOCIATION, THE AMERICAN MEDICAL
ASSOCIATION, THE AMERICAN ACADEMY OF
PEDIATRICS, THE CALIFORNIA MEDICAL
ASSOCIATION, THE AMERICAN PSYCHIATRIC
ASSOCIATION, THE AMERICAN PSYCHOANALYTIC
ASSOCIATION, THE AMERICAN ASSOCIATION FOR
MARRIAGE AND FAMILY THERAPY, THE NATIONAL
ASSOCIATION OF SOCIAL WORKERS AND ITS
CALIFORNIA CHAPTER, AND THE CALIFORNIA
PSYCHOLOGICAL ASSOCIATION AS AMICI CURIAE
ON THE MERITS IN SUPPORT OF AFFIRMANCE
NATHALIE F.P. GILFOYLE
AMERICAN PSYCHOLOGICAL
ASSOCIATION
750 First Street, N.E.
Washington, DC 20002

PAUL M. SMITH
Counsel of Record
JENNER & BLOCK LLP
1099 New York Ave., N.W.
Washington, DC 20001
(202) 639-6000
[email protected]
WILLIAM F. SHEEHAN
ANDREW HUDSON
GOODWIN | PROCTER LLP
901 New York Avenue, N.W.
Washington, D.C. 20001
Counsel for Amici Curiae
Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 1 of 62 PageID #: 402




i

TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................... iii
INTEREST OF AMICI CURIAE ............................. 1
INTRODUCTION AND SUMMARY ....................... 4
ARGUMENT ............................................................ 5
I. The Scientific Evidence Presented
in This Brief. .................................................. 5
II. Homosexuality Is a Normal
Expression of Human Sexuality,
Is Generally Not Chosen, and Is
Highly Resistant to Change .......................... 7
III. Sexual Orientation and
Relationships ............................................... 11
A. Gay Men and Lesbian
Women Form Stable,
Committed Relationships
That Are Equivalent to
Heterosexual Relationships
in Essential Respects. ....................... 11
B. The Institution of Marriage
Offers Social, Psychological,
and Health Benefits That
Are Denied to Same-Sex
Couples. ............................................. 14
IV. The Children of Same-Sex Couples ............ 18
A. Many Same-Sex Couples
Are Raising Children. ....................... 18
B. The Factors That Affect the
Adjustment of Children Are
Not Dependent on Parental
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ii

Gender or Sexual
Orientation ........................................ 18
C. There Is No Scientific Basis
for Concluding That Gay
and Lesbian Parents Are
Any Less Fit or Capable
Than Heterosexual Parents,
or That Their Children Are
Any Less Psychologically
Healthy and Well Adjusted. ............. 22
V. Challenges to the Evidence on
Same-Sex Parents by Other Amici
Are Unfounded ............................................. 31
A. The Methodological
Criticisms Fail to Recognize
the Cumulative Nature of
Scientific Research ............................ 31
B. The Regnerus Study Does
Not Provide Evidence That
Parental Sexual Orientation
Affects Child Development
Outcomes ........................................... 33
VI. Denying the Status of Marriage to
Same-Sex Couples Stigmatizes
Them. ........................................................... 34
CONCLUSION ....................................................... 37
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iii

TABLE OF AUTHORITIES

CASES: PAGE(S)

Baker v. Wade, 106 F.R.D. 526
(N.D. Tex. 1985) ............................................ 28

Heckler v. Mathews, 465 U.S. 728
(1984) ............................................................. 36

Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012) ....................... 4, 36


OTHER AUTHORITIES:

J.M. Adams & W.H. Jones, The
Conceptualization of Marital
Commitment: An Integrative
Analysis, 72 J. Personality & Soc.
Psychol. 1177 (1997) ..................................... 17

Am. Acad. of Pediatrics, Committee on
Psychosocial Aspects of Child and
Family Health, Policy Statement:
Promoting the Well-Being of
Children Whose Parents are Gay
or Lesbian, 131 Pediatrics
(forthcoming 2013) ........................................ 29

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iv

Am Ass’n for Marriage & Fam.
Therapy, AAMFT Position on
Couples and Families (2005),
available at http://www.
aamft.org/imis15/Content/About_A
AMFT/Position_On_Couples.aspx ................ 3

Am. Ass’n for Marriage & Fam.
Therapy, Reparative/Conversion
Therapy (2009), available at
http://www.aamft.org/iMIS15/AAM
FT/MFT_Resources/Content/Resou
rces/Position_On_Couples.aspx .................... 10

Am. Med. Ass’n, Policy H-60.940,
Partner Co-Adoption, available at
http://www.ama-
assn.org/ama/pub/about-ama/our-
people/member-groups-
sections/glbt-advisory-
committee/ama-policy-regarding-
sexual-orientation.page ................................ 30-31

Am. Med. Ass’n, Policy H-65.973,
Health Care Disparities in Same-
Sex Partner Households, available
at http://www.ama-
assn.org/ama/pub/about-ama/our-
people/member-groups-
sections/glbt-advisory-
committee/ama-policy-regarding-
sexual-orientation.page ................................ 35

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v

Am. Med. Ass’n, Policy H-160.991,
Health Care Needs of the
Homosexual Population, available
at http://www.ama-
assn.org/ama/pub/about-ama/our-
people/member-groups-
sections/glbt-advisory-
committee/ama-policy-regarding-
sexual-orientation.page ................................ 10

Am. Psychiatric Ass’n, Position
Statement: Homosexuality and
Civil Rights (1973), in 131 Am. J.
Psychiatry 497 (1974) ................................... 8

Am. Psychiatric Ass’n, Position
Statement: Psychiatric Treatment
and Sexual Orientation (1998),
available at
http://www.psych.org/Departments
/EDU/Library/APAOfficialDocume
ntsandRelated/PositionStatements
/199820.aspx .................................................. 10

Am. Psychiatric Ass’n, Position
Statement: Support of Legal
Recognition of Same-Sex Civil
Marriage (2005), available at
http://www.psych.org/Departments
/EDU/Library/APAOfficialDocume
ntsandRelated/PositionStatements
/200502.aspx. ................................................. 2, 30

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vi

Am. Psychoanalytic Ass’n, Position
Statement: Attempts to Change
Sexual Orientation, Gender
Identity, or Gender Expression
(2012), available at
http://www.apsa.org/about_apsaa/p
osition_statements/attempts_to_
change_sexual_orientation.aspx .................. 10

Am. Psychoanalytic Ass’n, Position
Statement: Parenting (2012),
available at
http://www.apsa.org/about_apsaa/p
osition_statements/parenting.aspx .............. 30

Am. Psychol. Ass’n, Minutes of the
Annual Meeting of the Council of
Representatives, 30 Am.
Psychologist 620 (1975) ................................ 8

Am. Psychol. Ass’n, Report of the
American Psychological
Association Task Force on
Appropriate Therapeutic
Responses to Sexual Orientation
(2009), available at
http://www.apa.org/pi/lgbt/resource
s/sexual-orientation.aspx .............................. 10

Am. Psychol. Ass’n, Resolution on
Appropriate Affirmative Responses
to Sexual Orientation Distress and
Change Efforts (2009), available at
http://www.apa.org/pi/lgbt/resource
s/sexual-orientation.aspx .............................. 10
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vii

Am. Psychol. Ass’n, Resolution on
Marriage Equality For Same-Sex
Couples (2011), available at
http://www.apa.org/about/governan
ce/council/policy/same-sex.pdf ...................... 1

Am. Psychol. Ass’n, Resolution on
Sexual Orientation, Parents, and
Children (2004), available at
http://www.apa.org/about/governan
ce/council/policy/parenting.pdf ..................... 29

P.R. Amato, Children of Divorce in the
1990s: An Update of the Amato
and Keith (1991) Meta-Analysis,
15 J. Fam. Psychol. 355 (2001) ..................... 21, 28

N. Anderssen et al., Outcomes for
Children with Lesbian or Gay
Parents: A Review of Studies from
1978 to 2000, 43 Scand. J. Psychol.
335 (2002) ...................................................... 23

M.V.L. Badgett, Money, Myths, and
Change: The Economic Lives of
Lesbians and Gay Men (2001) ...................... 36

K.F. Balsam et al., Three-Year Follow-
Up of Same-Sex Couples Who Had
Civil Unions in Vermont, Same-
Sex Couples Not in Civil Unions,
and Heterosexual Married
Couples, 44 Developmental
Psychol. 102 (2008) ....................................... 13-14

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viii

P. Berger & H. Kellner, Marriage and
the Construction of Reality: An
Exercise In the Microsociology of
Knowledge, 12 Diogenes 1 (1964) ................. 14

T.J. Biblarz & J. Stacey, How Does
the Gender of Parents Matter?, 72
J. Marriage & Fam. 3 (2010) ........................ 23, 25

H. Bos & T.G.M. Sandfort, Children’s
Gender Identity in Lesbian and
Heterosexual Two-Parent
Families, 62 Sex Roles 114 (2010) ................ 23, 26

S.L. Brown, The Effect of Union Type
on Psychological Well-Being:
Depression Among Cohabitors
Versus Marrieds, 41 J. Health &
Soc. Behav. 241 (2000) .................................. 16

R.P.D. Burton, Global Integrative
Meaning as a Mediating Factor in
the Relationship Between Social
Roles and Psychological Distress,
39 J. Health & Soc. Behav. 201
(1998) ............................................................. 14

R.W. Chan et al., Psychosocial
Adjustment Among Children
Conceived Via Donor Insemination
By Lesbian and Heterosexual
Mothers, 69 Child Dev. 443 (1998) ............... 21, 22

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ix

S.D. Cochran et al., Prevalence of
Mental Disorders, Psychological
Distress, and Mental Services Use
Among Lesbian, Gay, and Bisexual
Adults in the United States, 71 J.
Consulting & Clinical Psychol. 53
(2003) ............................................................. 12

Consequences of Growing Up Poor
(G.J. Duncan & J. Brooks-Gunn
eds., 1997) ...................................................... 22

J. Crocker et al., Social Stigma, in 2
The Handbook of Social Psychology
504 (D.T. Gilbert et al. eds., 4th ed.
1998) .............................................................. 35

E.M. Cummings et al., Children’s
Responses to Everyday Marital
Conflict Tactics in the Home, 74
Child Dev. 1918 (2003) ................................. 21

E.M. Cummings et al., Everyday
Marital Conflict and Child
Aggression, 32 J. Abnormal Child
Psychol. 191 (2004) ....................................... 21

A.R. D’Augelli et al., Lesbian and Gay
Youth’s Aspirations for Marriage
and Raising Children, 1 J. LGBT
Issues Counseling 77 (2007) ......................... 12

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x

A.R. D’Augelli, Sexual Orientation, in
7 Am. Psychol. Ass’n, Encyclopedia
of Psychology 260 (A.E. Kazdin ed.,
2000) .............................................................. 7

E. Durkheim, Suicide: A Study in
Sociology 259 (J.A. Spaulding & G.
Simpson trans., Glencoe, Ill.: Free
Press 1951) ................................................... 14

S. Erich et al., A Comparative
Analysis of Adoptive Family
Functioning with Gay, Lesbian,
and Heterosexual Parents and
Their Children,
1 J. GLBT Fam. Stud. 43 (2005)................... 24

S. Erich et al., Gay and Lesbian
Adoptive Families: An Exploratory
Study of Family Functioning,
Adoptive Child’s Behavior, and
Familial Support Networks, 9 J.
Fam. Soc. Work 17 (2005) ............................. 24

R.H. Farr et al., Parenting and Child
Development in Adoptive Families:
Does Parental Sexual Orientation
Matter?, 14 Applied
Developmental Sci. 164 (2010) ................ 23, 24, 27



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xi

A.W. Fingerhut & L.A. Peplau, Same-
Sex Romantic Relationships, in
Handbook of Psychology and
Sexual Orientation 165
(C.J. Patterson & A.R. D’Augelli
eds., 2013) ...................................................... 12

B.L. Frankowski, Sexual Orientation
and Adolescents, 113 Pediatrics
1827 (2004) .................................................... 10

M. Fulcher et al., Individual
Differences in Gender
Development: Associations with
Parental Sexual Orientation,
Attitudes, and Division of Labor,
58 Sex Roles 330 (2008) ................................ 27

G.J. Gates et al., Letter to the editors
and advisory editors of Social
Science Research, 41 Soc. Sci. Res.
1350 (2012) .................................................... 34

E. Goffman, Stigma: Notes on the
Management of Spoiled Identity
(1963) ............................................................. 35

A.E. Goldberg et al., Gender-Typed
Play Behavior in Early Childhood:
Adopted Children with Lesbian,
Gay, and Heterosexual Parents, 67
Sex Roles 503 (2012) ..................................... 27

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xii

A.E. Goldberg, Lesbian and Gay
Parents and Their Children:
Research on the Family Life Cycle
(2010) .................................................. 23, 26, 27, 28

S. Golombok, Parenting: What Really
Counts? (2000) ............................................... 19, 21

S. Golombok et al., Children with
Lesbian Parents: A Community
Study, 39 Developmental Psychol.
20 (2003) ........................................................ 23, 28

S. Golombok & F. Tasker, Do Parents
Influence the Sexual Orientation of
Their Children? Findings from a
Longitudinal Study of Lesbian
Families, 32 Developmental
Psychol. 3 (1996) ........................................... 28

J.C. Gonsiorek, The Empirical Basis
for the Demise of the Illness Model
of Homosexuality, in
Homosexuality: Research
Implications for Public Policy 115
(J.C. Gonsiorek & J.D. Weinrich
eds., 1991) ...................................................... 8

W.R. Gove et al., The Effect of
Marriage on the Well-Being of
Adults: A Theoretical Analysis, 11
J. Fam. Issues 4, 16 (1990) ........................... 14, 15

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xiii

W.R. Gove et al., Does Marriage Have
Positive Effects on the
Psychological Well-Being of the
Individual?, 24 J. Health & Soc.
Behav. 122 (1983).......................................... 16

R. Green et al., Lesbian Mothers and
Their Children: A Comparison
with Solo Parent Heterosexual
Mothers and Their Children, 15
Archives Sexual Behav. 167 (1986) .............. 27

T.B. Heaton & S.L. Albrecht, Stable
Unhappy Marriages, 53 J.
Marriage & Fam. 747 (1991) ........................ 17

Henry J. Kaiser Fam. Found., Inside-
OUT: A Report on the Experiences
of Lesbians, Gays and Bisexuals in
America and the Public’s Views on
Issues and Policies Related to
Sexual Orientation 31 (2001)
available at http://www.kff.org
/kaiserpolls/upload/New-Surveys-
on-Experiences-of-Lesbians-Gays-
and-Bisexuals-and-the-Public-s-
Views-Related-to-Sexual-
Orientation-Report.pdf. ................................ 12

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xiv

G. Herek et al., Demographic,
Psychological, and Social
Characteristics of Self-Identified
Lesbian, Gay, and Bisexual Adults
in a US Probability Sample, 7
Sexuality Res. & Soc. Policy 176
(2010) .......................................................... 9, 11, 12

G. Herek et al., Internalized Stigma
Among Sexual Minority Adults:
Insights From a Social
Psychological Perspective, 56 J.
Counseling Psychol. 32 (2009) ...................... 9

G.M. Herek, Bad Science in the
Service of Stigma: A Critique of the
Cameron Group’s Survey Studies,
in Stigma and Sexual Orientation:
Understanding Prejudice Against
Lesbians, Gay Men, and Bisexuals
223 (G.M. Herek ed., 1998) ........................... 28

G.M. Herek, Hate Crimes and Stigma-
Related Experiences Among
Sexual Minority Adults in the
United States: Prevalence
Estimates from a National
Probability Sample, 24 J.
Interpersonal Violence 54 (2009) ................. 35-36

G.M. Herek, Homosexuality, in 2 The
Corsini Encyclopedia of Psychology
774-76 (I.B. Weiner & W.E.
Craighead eds., 4th ed. 2010). ...................... 7

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xv

G.M. Herek et al., Psychological
Sequelae of Hate-Crime
Victimization Among Lesbian,
Gay, and Bisexual Adults, 67 J.
Consulting & Clinical Psychol. 945
(1999) ............................................................. 36

E. Hooker, The Adjustment of the
Male Overt Homosexual, 21 J.
Projective Techs. 18 (1957) ........................... 8

M.E. Hotvedt & J.B. Mandel, Children
of Lesbian Mothers, in
Homosexuality: Social,
Psychological, and Biological
Issues 275 (W. Paul et al. eds.,
1982) .............................................................. 27

Institute of Medicine, The Health of
Lesbian, Gay, Bisexual, and
Transgender People: Building a
Foundation for Better
Understanding (2011) ................................... 7, 25

N.J. Johnson et al., Marital Status
and Mortality: The National
Longitudinal Mortality Study, 10
Annals Epidemiology 224 (2000) .................. 15

J.K. Kiecolt-Glaser & T.L. Newton,
Marriage and Health: His and
Hers, 127 Psychol. Bull. 472 (2001) ............. 16

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xvi

L.A. Kurdek, Are Gay and Lesbian
Cohabiting Couples Really
Different from Heterosexual
Married Couples?, 66 J. Marriage
& Fam. 880 (2004)......................................... 13

L.A. Kurdek, Change in Relationship
Quality for Partners from Lesbian,
Gay Male, and Heterosexual
Couples, 22 J. Fam. Psychol. 701
(2008) ............................................................. 13, 14

L.A. Kurdek, Relationship Outcomes
and Their Predictors: Longitudinal
Evidence from Heterosexual
Married, Gay Cohabiting, and
Lesbian Cohabiting Couples, 60 J.
Marriage & Fam. 553 (1998) ........................ 17-18

L.A. Kurdek, What Do We Know
About Gay and Lesbian Couples?,
14 Current Directions Psychol. Sci.
251 (2005) ...................................................... 13

M.E. Lamb, Mothers, Fathers,
Families, and Circumstances:
Factors Affecting Children’s
Adjustment, 16 Applied
Developmental Sci. 98 (2012) ....................... 20

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xvii

M.E. Lamb & C. Lewis, The Role of
Parent-Child Relationships in
Child Development, in
Developmental Science: An
Advanced Textbook 429-68 (M.H.
Bornstein & M.E. Lamb eds., 5th
ed. 2005) ........................................................ 19, 20

G. Levinger, Marital Cohesiveness
and Dissolution: An Integrative
Review, 27 J. Marriage & Fam. 19
(1965) ............................................................. 17

B.G. Link & J.C. Phelan,
Conceptualizing Stigma, 27 Ann.
Rev. Soc. 363 (2001) ...................................... 35

L. Marks, Same-Sex Parenting and
Children’s Outcomes: A Closer
Examination of the American
Psychological Association’s Brief
on Lesbian and Gay Parenting, 41
Soc. Sci. Res. 735 (2012) ............................... 32-33

S. McLanahan & G. Sandefur,
Growing Up With a Single Parent:
What Hurts, What Helps (1994) .................. 21

T.C. Mills et al., Health-Related
Characteristics of Men Who Have
Sex with Men: A Comparison of
Those Living in “Gay Ghettos”
with Those Living Elsewhere, 91
Am. J. Pub. Health 980 (2001) ..................... 12

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xviii

J.E. Murray, Marital Protection and
Marital Selection: Evidence from a
Historical-Prospective Sample of
American Men, 37 Demography
511 (2000) ...................................................... 15

Nat’l Ass’n of Soc. Workers, Policy
Statement: Family Planning and
Reproductive Choice, in Social
Work Speaks 129 (9th ed. 2012) ................... 30

Nat’l Ass’n of Soc. Workers, Policy
Statement: Lesbian, Gay, and
Bisexual Issues, in Social Work
Speaks 193 (4th ed. 1997) ............................. 30

Nat’l Ass’n of Soc. Workers, Position
Statement: “Reparative” and
“Conversion” Therapies for
Lesbians and Gay Men (2000),
available at
http://www.naswdc.org/diversity/lg
b/reparative.asp ............................................ 10

Neighborhood Poverty: Context and
Consequences for Children
(J. Brooks-Gunn et al. eds., 1997) ................ 22

C.J. Patterson, Children of Lesbian
and Gay Parents: Psychology, Law,
and Policy, 64 Am. Psychologist
727 (2009) ...................................................... 23

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xix

C.J. Patterson, Family Lives of
Lesbian and Gay Adults, in
Handbook of Marriage and the
Family 659 (G.W. Peterson & K.R.
Bush eds., 3d ed. 2013) ...................... 23, 26, 27, 28

C.J. Patterson, Family Relationships
of Lesbians and Gay Men,
62 J. Marriage & Fam. 1052 (2000) ............. 23

C.J. Patterson, Gay Fathers, in The
Role of the Father in Child
Development 397 (M.E. Lamb ed.,
4th ed. 2004) .................................................. 24

C.J. Patterson, Lesbian and Gay
Parents and Their Children: A
Social Science Perspective, in
Contemporary Perspectives on
Lesbian, Gay, and Bisexual
Identities, Nebraska Symposium
on Motivation 141
(D.A. Hope ed., 2009) .................................... 22

C.J. Patterson, & P.D. Hastings,
Socialization in the Context of
Family Diversity, in Handbook of
Socialization: Theory and Research
328-51 (J.E. Grusec & P.D.
Hastings eds., 2007) ................................ 19, 20, 22

L.A. Peplau & A.W. Fingerhut, The
Close Relationships of Lesbians
and Gay Men, 58 Ann. Rev.
Psychol. 405 (2007) ....................................... 12, 13
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xx

L.A. Peplau & K.P. Beals, The Family
Lives of Lesbians and Gay Men, in
Handbook of Family
Communication 233 (A.L.
Vangelisti ed., 2004) ..................................... 14

L.A. Peplau & N. Ghavami, Gay,
Lesbian, and Bisexual
Relationships, in Enclyclopedia of
Human Relationships
(H.T. Reis & S. Sprecher eds.,
2009) .............................................................. 12, 13

E.C. Perrin & Comm. on Psychosocial
Aspects of Child & Fam. Health,
Technical Report: Coparent or
Second-Parent Adoption by Same-
Sex Parents, 109 Pediatrics 341
(2002) ............................................................. 23, 26

D. Potter, Same-Sex Parent Families
and Children’s Academic
Achievement, 74 J. Marriage &
Fam. 556 (2012) ........................................... passim

D. Previti & P.R. Amato, Why Stay
Married? Rewards, Barriers, and
Marital Stability, 65 J. Marriage &
Fam. 561 (2003) ............................................ 17

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xxi

M. Regnerus, How Different are the
Adult Children of Parents Who
Have Same-Sex Relationships?
Findings from the New Family
Structures Study, 41 Soc. Sci. Res.
752 (2012) ...................................................... 33

B.F. Riess, Psychological Tests in
Homosexuality, in Homosexual
Behavior: A Modern Reappraisal
296 (J. Marmor ed., 1980) ............................. 8

I. Rivers et al., Victimization, Social
Support, and Psychosocial
Functioning Among Children of
Same-Sex and Opposite-Sex
Couples in the United Kingdom, 44
Developmental Psychol. 127 (2008) ............. 23-24

G.I. Roisman et al., Adult Romantic
Relationships as Contexts for
Human Development: A
Multimethod Comparison of Same-
Sex Couples with Opposite-Sex
Dating, Engaged, and Married
Dyads, 44 Developmental Psychol.
91 (2008) ........................................................ 13

M.J. Rosenfeld, Nontraditional
Families and Childhood Progress
through School, 47 Demography
755 (2010) ...................................................... passim

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xxii

C.E. Ross et al., The Impact of the
Family on Health: The Decade in
Review, 52 J. Marriage & Fam.
1059 (1990) .................................................... 15

C.E. Ross, Reconceptualizing Marital
Status as a Continuum of Social
Attachment, 57 J. Marriage &
Fam. 129 (1995) ............................................ 15-16

S. Stack & J.R. Eshleman, Marital
Status and Happiness: A 17-
Nation Study, 60 J. Marriage &
Fam. 527 (1998) ............................................ 14

Same-Sex Unmarried Partner or
Spouse Households by Sex of
Householder by Presence of Own
Children: 2010 Census and 2010
American Community Survey,
available at
http://www.census.gov/hhes/sames
ex/files/supp-table-AFF.xls. .......................... 13, 18

S. Sarantakos, Children in Three
Contexts: Family, Education, and
Social Development, 21 Child.
Australia 23 (1996) ....................................... 28

D.E. Sherkat, The Editorial Process
and Politicized Scholarship:
Monday Morning Editorial
Quarterbacking and a Call for
Scientific Vigilance, 41 Soc. Sci.
Res. 1346 (2012) ............................................ 34
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xxiii

R.W. Simon, Revisiting the
Relationships Among Gender,
Marital Status, and Mental
Health, 107 Am. J. Soc. 1065
(2002) ............................................................. 15

J. Stacey & T.J. Biblarz, (How) Does
the Sexual Orientation of Parents
Matter?, 66 Am. Soc. Rev. 159
(2001) ............................................................. 22, 24

E.L. Sutfin et al., How Lesbian and
Heterosexual Parents Convey
Attitudes about Gender to their
Children: The Role of Gendered
Environments, 58 Sex Roles 501
(2008) ............................................................. 25, 27

C.J. Telingator & C.J. Patterson,
Children and Adolescents of
Lesbian and Gay Parents, 47 J.
Am. Acad. Child & Adolescent
Psychiatry 1364 (2008) ................................. 22

The Family Context of Parenting in
Children’s Adaptation to
Elementary School (P.A. Cowan et
al. eds., 2005) ................................................. 21

J.L. Wainright et al., Psychosocial
Adjustment, School Outcomes, and
Romantic Relationships of
Adolescents With Same-Sex
Parents, 75 Child Dev. 1886 (2009) ........ 22, 25, 32

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xxiv

J.L. Wainright & C.J. Patterson,
Delinquency, Victimization, and
Substance Use Among Adolescents
With Female Same-Sex Parents,
20 J. Fam. Psychol. 526 (2006) ............... 24, 31, 32

J.L. Wainright & C.J. Patterson, Peer
Relations Among Adolescents With
Female Same-Sex Parents, 44
Developmental Psychol. 117 (2008) ....... 25, 31, 32

L.K. White & A. Booth, Divorce Over
the Life Course: The Role of
Marital Happiness, 12 J. Fam.
Issues 5 (1991) ............................................... 17

K. Williams, Has the Future of
Marriage Arrived? A
Contemporary Examination of
Gender, Marriage, and
Psychological Well-Being, 44 J.
Health & Soc. Behav. 470 (2003) .................. 16



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1


INTEREST OF AMICI CURIAE
1

The American Psychological Association, the
world’s largest professional association of
psychologists, is a scientific and educational
organization dedicated to increasing and
disseminating psychological knowledge. The
Association has adopted multiple research-based
policy statements supporting the rights of gay and
lesbian people, including a 2011 policy statement
supporting full marriage equality and recognizing
that according gay and lesbian people only a “civil
union” status “perpetuates the stigma historically
attached to homosexuality, and reinforces prejudice
against lesbian, gay, and bisexual people.” Am.
Psychol. Ass’n, Resolution on Marriage Equality For
Same-Sex Couples (2011), available at http://www.
apa.org/about/policy/same-sex.pdf.
The American Medical Association (AMA) is the
largest professional association of physicians,
residents, and medical students in the United
States, substantially all of whom are represented in
the AMA’s policy making process. The objectives of
the AMA are to promote the science and art of
medicine and the betterment of public health. Its
policies regarding gay and lesbian issues promote
those objectives.
The American Academy of Pediatrics (AAP) is the
largest professional association of pediatricians in

1
No party’s counsel authored this brief in whole or in part, and
no party or a party’s counsel nor any other person other than
the Amici contributed money that was intended to fund
preparing or submitting the brief.
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2


the world, with over 62,000 members. Through
education, research, advocacy, and the provision of
expert advice, AAP seeks the optimal physical,
mental, and social health and well-being for infants,
children, adolescents, and young adults. The AAP
supports marriage equality for all capable and
consenting couples, including those who are of the
same gender.
The American Psychiatric Association is the
Nation’s largest organization of physicians
specializing in psychiatry. It joins this brief for the
reasons expressed in its 2005 position statement,
Support of Legal Recognition of Same-Sex Civil
Marriage, available at http://www.psych.org/
Departments /EDU/Library/APAOfficialDocumentsan
dRelated/PositionStatements/200502.aspx (“In the
interest of maintaining and promoting mental
health, the American Psychiatric Association
supports the legal recognition of same-sex marriage
with all rights, benefits, and responsibilities
conferred by civil marriage, and opposes restrictions
to those same rights, benefits, and responsibilities.”).
The American Psychoanalytic Association is the
oldest and largest national psychoanalytic
membership organization, with more than 3,500
members and associates. It believes that marriage is
a basic human right and that same gender couples
should be able to share equally in the rights and
responsibilities of civil marriage.
The California Medical Association (CMA) is a non-
profit association of approximately 37,000 California
physicians working to promote the science and art of
medicine, the care and well-being of patients, the
protection of public health, and the betterment of the
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3


medical profession. The CMA recognizes that
denying civil marriage contributes to poorer health
outcomes for gay and lesbian individuals, couples
and their families.
The American Association for Marriage and Family
Therapy (AAMFT), founded in 1942, is a national
professional association representing the field of
marriage and family therapy and the professional
interests of over 50,000 marriage and family
therapists in the United States. AAMFT joins this
brief for the reasons expressed in its 2005 Position on
Couples and Families. Am Ass’n for Marriage &
Fam. Therapy, AAMFT Position on Couples and
Families (2005), available at http://www.
aamft.org/imis15/Content/About_AAMFT/Position_O
n_Couples.aspx.
The National Association of Social Workers
(NASW) is the largest association of professional
social workers in the world, with nearly 140,000
members. NASW develops policy statements on
issues of importance to the social work profession
and, consistent with those statements, NASW and
the NASW California Chapter (also an Amicus
herein) support full social and legal acceptance of
lesbian, gay, and bisexual people.
With more than 2500 members, the California
Psychological Association seeks to advance the
science and practice of psychology as a means of
promoting human welfare by supporting excellence
in education, training, research, advocacy, and
service.
All parties have consented to the filing of this brief.
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4


INTRODUCTION AND SUMMARY
As the Ninth Circuit noted, “Proposition 8 had one
effect,” to “strip[] same-sex couples” of “the right to
obtain and use the designation of ‘marriage.’” Perry
v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012). By so
doing, the initiative withholds from gay men and
lesbian women an important symbol of “state
legitimization and societal recognition.” Id. Some
proponents of the initiative claim that this exclusion
merely reflects meaningful differences between
same-sex and heterosexual relationships, or between
the parenting abilities of same-sex and heterosexual
couples. The scientific research does not justify
those claims.
Rather, scientific 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 official recognition of marriage
for same-sex couples undermines the institution of
marriage and harms their children is inconsistent
with the scientific evidence.
The body of research presented below demonstrates
that the discrimination effected by Proposition 8
unfairly stigmatizes same-sex couples. The research
also contravenes the stereotype-based rationales that
some advance to support Proposition 8 and that the
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5


Equal Protection Clause of the Fourteenth
Amendment was designed to prohibit.
ARGUMENT
I. The Scientific Evidence Presented in This Brief.
Representing the leading associations of
psychological, psychiatric, medical, and social work
professionals, Amici have sought in this brief to
present an accurate and responsible summary of the
current state of scientific and professional knowledge
concerning sexual orientation and families relevant
to this case.
In drawing conclusions, Amici rely on the best
empirical research available, focusing on general
patterns rather than any single study. Before citing
a study herein, Amici have critically evaluated its
methodology, including the reliability and validity of
the measures and tests it employed, and the quality
of its data-collection procedures and statistical
analyses.
Scientific research is a cumulative process and no
empirical study is perfect in its design and execution.
Even well-executed studies may be limited in their
implications and the generalizability of their
findings.
2
Accordingly, Amici base their conclusions

2
For example, to confidently describe the prevalence or
frequency with which a phenomenon occurs in the population at
large, it is necessary to collect data from a “probability” or
“representative” sample. A probability sample consists of
individuals selected from the study population through a
process that gives each member of the population a calculable
chance of being included. Nonprobability samples do not give
all members of the study population a chance of being

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6


as much as possible on general patterns rather than
any single study.
All scientific studies can be constructively
criticized, and scientists continually try to identify
ways to improve and refine their own work and that
of their colleagues. Thus, many studies cited herein
discuss their limitations and provide suggestions for
further research. This is consistent with the
scientific method and does not impeach the overall
conclusions.
Most of the studies and literature reviews cited
herein have been peer-reviewed and published in
reputable academic journals. In addition, other
academic books, book chapters, and technical
reports, which typically are not subject to the same
peer-review standards as journal articles, are
included when they report research employing
rigorous methods, are authored by well-established

included—such as, for example, a study of voters that relies on
volunteers who phone in to a telephone number advertised in a
newspaper. Case studies and nonprobability samples can be
used to document the existence of a phenomenon in the study
population. For studies of groups that constitute a relatively
small proportion of the population, obtaining a probability
sample can be extremely expensive or otherwise not feasible.
Consequently, researchers studying such groups may rely on
nonprobability samples. If they wish to compare members of
the smaller group with members of the majority group (e.g.,
lesbian mothers with heterosexual mothers), they may recruit
nonprobability samples of both groups that are matched on
relevant characteristics (e.g., educational level, age, income).
Regardless of the sampling method used, greater confidence can
be placed in findings that have been replicated by others using
different samples.
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7


researchers, and accurately reflect professional
consensus about the current state of knowledge.
Amici have made a good faith effort to include all
relevant studies and have not excluded any study
because of its findings.
II. Homosexuality Is a Normal Expression of
Human Sexuality, Is Generally Not Chosen, and
Is Highly Resistant to Change.
Sexual orientation refers to an enduring disposition
to experience sexual, affectional, and/or romantic
attractions to one or both sexes. It also encompasses
an individual’s sense of personal and social identity
based on those attractions, on behaviors expressing
those attractions, and on membership in a
community of others who share those attractions and
behaviors.
3
Although sexual orientation ranges
along a continuum from exclusively heterosexual to
exclusively homosexual, it is usually discussed in
three categories: heterosexual (having sexual and
romantic attraction primarily or exclusively to
members of the other sex), homosexual (having
sexual and romantic attraction primarily or
exclusively to members of one’s own sex), and
bisexual (having a significant degree of sexual and
romantic attraction to both sexes).

3
See A.R. D’Augelli, Sexual Orientation, in 7 Am. Psychol.
Ass’n, Encyclopedia of Psychology 260 (A.E. Kazdin ed., 2000);
G.M. Herek, Homosexuality, in 2 The Corsini Encyclopedia of
Psychology 774-76 (I.B. Weiner & W.E. Craighead eds., 4th ed.
2010); Institute of Medicine, The Health of Lesbian, Gay,
Bisexual, and Transgender People: Building a Foundation for
Better Understanding (2011).
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8


Although homosexuality was classified as a mental
disorder when the American Psychiatric Association
published the first Diagnostic and Statistical Manual
of Mental Disorders in 1952, only five years later a
study sponsored by the National Institute of Mental
Health found no evidence to support the
classification.
4
On the basis of that study and others
demonstrating that the original classification
reflected social stigma rather than science,
5
the
American Psychiatric Association declassified
homosexuality as a mental disorder in 1973. In
1974, the American Psychological Association
adopted a policy reflecting the same conclusion. For
decades, then, the consensus of mental health
professionals and researchers has been that
homosexuality and bisexuality are normal
expressions of human sexuality and pose no inherent
obstacle to leading a happy, healthy, and productive
life, and that gay and lesbian people function well in
the full array of social institutions and interpersonal
relationships.
6


4
E. Hooker, The Adjustment of the Male Overt Homosexual, 21
J. Projective Techs. 18 (1957).
5 B.F. Riess, Psychological Tests in Homosexuality, in
Homosexual Behavior: A Modern Reappraisal 296 (J. Marmor
ed., 1980); J.C. Gonsiorek, The Empirical Basis for the Demise
of the Illness Model of Homosexuality, in Homosexuality:
Research Implications for Public Policy 115 (J.C. Gonsiorek &
J.D. Weinrich eds., 1991).
6
See, e.g., Am. Psychiatric Ass’n, Position Statement:
Homosexuality and Civil Rights (1973), in 131 Am. J.
Psychiatry 497 (1974); Am. Psychol. Ass’n, Minutes of the
Annual Meeting of the Council of Representatives, 30 Am.
Psychologist 620, 633 (1975).
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9


Most gay men and lesbians do not experience their
sexual orientation as resulting from a voluntary
choice. In a U.S. national probability sample of 662
self-identified lesbian, gay, and bisexual adults, 88%
of gay men and 68% of lesbians reported feeling they
had no choice at all about their sexual orientation,
while another 7% of gay men and 15% of lesbians
reported only a small amount of choice. Only 5% of
gay men and 16% of lesbians felt they had a fair
amount or a great deal of choice.
7

Several amici supporting Proposition 8 challenge
the conclusion that for most people sexual
orientation is not a matter of choice, but they offer no
credible scientific support for their position.
8

Moreover, although some groups and individuals
have offered clinical interventions that purport to
change sexual orientation from homosexual to
heterosexual—sometimes called “conversion”
therapies— these interventions have not been shown
to be effective or safe. A review of the scientific
literature by an American Psychological Association
task force concluded that sexual orientation change

7
G. Herek et al., Demographic, Psychological, and Social
Characteristics of Self-Identified Lesbian, Gay, and Bisexual
Adults in a US Probability Sample, 7 Sexuality Res. & Soc.
Pol’y 176 (2010). See also G. Herek et al., Internalized Stigma
Among Sexual Minority Adults: Insights From a Social
Psychological Perspective, 56 J. Counseling Psychol. 32 (2009).
8
See Amicus Br. of Liberty Counsel, at 35; Amicus Br. of
Parents and Friends of Ex-Gays and Gays, passim; Amicus Br.
of Family Research Council, at 27-28; Amicus Br. of Dr. Paul
McHugh, at 14-28.
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10


efforts are unlikely to succeed and indeed can be
harmful.
9

All major national mental health organizations—
including Amici—have adopted policy statements
cautioning the profession and the public about
treatments that purport to change sexual
orientation.
10


9
Am. Psychol. Ass’n, Report of the American Psychological
Association Task Force on Appropriate Therapeutic Responses
to Sexual Orientation (2009); see also Am. Psychol. Ass’n,
Resolution on Appropriate Affirmative Responses to Sexual
Orientation Distress and Change Efforts (2009), both available
at http://www.apa.org/pi/lgbt/resources/sexual-orientation.aspx.
10
See Am. Psychol. Ass’n, Resolution, supra note 9; Am.
Psychiatric Ass’n, Position Statement: Psychiatric Treatment
and Sexual Orientation (1998), available at http://www.
psych.org/Departments/EDU/Library/APAOfficialDocuments
andRelated/PositionStatements/199820.aspx; Am. Ass’n for
Marriage & Fam. Therapy, Reparative/Conversion Therapy
(2009), available at http://www.aamft.org/iMIS15/AAMFT/
MFT_Resources/Content/Resources/Position_On_Couples.aspx;
Am. Med. Ass’n, Policy H-160.991, Health Care Needs of the
Homosexual Population, available at http://www.ama-
assn.org/ama/pub/about-ama/our-people/member-groups-
sections/glbt-advisory-committee/ama-policy-regarding-sexual-
orientation.page; Nat’l Ass’n of Soc. Workers, Position
Statement: “Reparative” and “Conversion” Therapies for
Lesbians and Gay Men (2000), available at http://www.naswdc.
org/diversity/lgb/ reparative.asp; Am. Psychoanalytic Ass’n,
Position Statement: Attempts to Change Sexual Orientation,
Gender Identity, or Gender Expression (2012), available at
http://www.apsa.org/about_apsaa/position_statements/attempts
_to_change_sexual_orientation.aspx; B.L. Frankowski, Sexual
Orientation and Adolescents, 113 Pediatrics 1827 (2004).
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11


III. Sexual Orientation and Relationships.
Sexual orientation is commonly discussed as a
characteristic of the individual, like biological sex or
age. This perspective is incomplete because sexual
orientation necessarily involves relationships with
other people. Sexual acts and romantic attractions
are categorized as homosexual or heterosexual
according to the biological sex of the individuals
involved in them, relative to each other. Indeed, it is
only by acting with another person—or desiring to
act—that individuals express their heterosexuality,
homosexuality, or bisexuality. Thus, sexual
orientation is integrally linked to the intimate
personal relationships that human beings form with
others to meet their deeply felt needs for love,
attachment, and intimacy. One’s sexual orientation
defines the universe of persons with whom one is
likely to find the satisfying and fulfilling
relationships that, for many individuals, comprise an
essential component of personal identity.
A. Gay Men and Lesbian Women Form Stable,
Committed Relationships That Are Equivalent
to Heterosexual Relationships in Essential
Respects.
Like heterosexuals, most gay and lesbian people
want to form stable, long-lasting relationships,
11
and

11
In a 2005 U.S. national probability sample of 662 self-
identified lesbian, gay, and bisexual adults, of those who were
currently in a relationship, 78% of the gay men and 87% of the
lesbian women said they would marry their partner if it was
legal, and, of those not currently in a relationship, 34% of gay
men and 46% of lesbian women said that they would like to
marry someday. Herek et al., Demographic, supra note 7. See

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12


many of them do: numerous studies using
nonprobability samples of gay and lesbian people
have found that the vast majority of participants
have been in a committed relationship at some point
in their lives, that large proportions are currently in
such a relationship (40-70% of gay men and 45-80%
of lesbian women), and that many of those couples
have been together 10 or more years.
12
Survey data
from probability samples support these findings.
13

Data from the 2010 US Census show that same-sex

also Henry J. Kaiser Fam. Found., Inside-OUT: A Report on
the Experiences of Lesbians, Gays and Bisexuals in America
and the Public’s Views on Issues and Policies Related to Sexual
Orientation 31 (2001), available at http://www.kff.org
/kaiserpolls/upload/New-Surveys-on-Experiences-of-Lesbians-
Gays-and-Bisexuals-and-the-Public-s-Views-Related-to-Sexual-
Orientation-Report.pdf; A.R. D’Augelli et al., Lesbian and Gay
Youth’s Aspirations for Marriage and Raising Children, 1 J.
LGBT Issues Counseling 77 (2007).
12
See A.W. Fingerhut & L.A. Peplau, Same-Sex Romantic
Relationships, in Handbook of Psychology and Sexual
Orientation 165 (C.J. Patterson & A.R. D’Augelli eds., 2013);
L.A. Peplau & A.W. Fingerhut, The Close Relationships of
Lesbians and Gay Men, 58 Ann. Rev. Psychol. 405 (2007); L.A.
Peplau & N. Ghavami, Gay, Lesbian, and Bisexual
Relationships, in Enclyclopedia of Human Relationships (H.T.
Reis & S. Sprecher eds., 2009).
13
Herek et al., Demographic, supra note 7; T.C. Mills et al.,
Health-Related Characteristics of Men Who Have Sex with
Men: A Comparison of Those Living in “Gay Ghettos” with
Those Living Elsewhere, 91 Am. J. Pub. Health 980, 982 (Table
1) (2001); S.D. Cochran et al., Prevalence of Mental Disorders,
Psychological Distress, and Mental Services Use Among
Lesbian, Gay, and Bisexual Adults in the United States, 71 J.
Consulting & Clinical Psychol. 53, 56 (2003); Henry J. Kaiser
Fam. Found., supra note 11.
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13


couples headed more than 600,000 US households
and more than 90,000 in California.
14

Empirical research demonstrates that the
psychological and social aspects of committed
relationships between same-sex partners largely
resemble those of heterosexual partnerships. Like
heterosexual couples, same-sex couples form deep
emotional attachments and commitments.
Heterosexual and same-sex couples alike face similar
issues concerning intimacy, love, equity, loyalty, and
stability, and they go through similar processes to
address those issues.
15
Empirical research also
shows that gay and lesbian couples have levels of
relationship satisfaction similar to or higher than
those of heterosexual couples.
16


14
Same-Sex Unmarried Partner or Spouse Households by Sex
of Householder by Presence of Own Children: 2010 Census and
2010 American Community Survey, available at http://www.
census.gov/hhes/samesex/files/supp-table-AFF.xls.
15
L.A. Kurdek, Change in Relationship Quality for Partners
from Lesbian, Gay Male, and Heterosexual Couples, 22 J. Fam.
Psychol. 701 (2008); L.A. Kurdek, Are Gay and Lesbian
Cohabiting Couples Really Different from Heterosexual
Married Couples?, 66 J. Marriage & Fam. 880 (2004); G.I.
Roisman et al., Adult Romantic Relationships as Contexts for
Human Development: A Multimethod Comparison of Same-Sex
Couples with Opposite-Sex Dating, Engaged, and Married
Dyads, 44 Developmental Psychol. 91 (2008); see generally L.A.
Kurdek, What Do We Know About Gay and Lesbian Couples?,
14 Current Directions Psychol. Sci. 251 (2005); Peplau &
Fingerhut, supra note 12; Peplau & Ghavami, supra note 12.
16
K.F. Balsam et al., Three-Year Follow-Up of Same-Sex
Couples Who Had Civil Unions in Vermont, Same-Sex Couples
Not in Civil Unions, and Heterosexual Married Couples, 44

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14


B. The Institution of Marriage Offers Social,
Psychological, and Health Benefits That Are
Denied to Same-Sex Couples.
Marriage as a social institution has a profound
effect on the lives of the individuals who inhabit it.
The sociologist Emile Durkheim observed that
marriage helps to protect the individual from
“anomy,” or social disruption and breakdowns of
norms.
17
Twentieth-century sociologists advised that
marriage creates order
18
and “provides a strong
positive sense of identity, self-worth, and mastery.”
19

Empirical research demonstrates that marriage has
distinct benefits that extend beyond the material
necessities of life.
20
These intangible elements of the
marital relationship have important implications for

Developmental Psychol. 102 (2008); Kurdek, Change in
Relationship Quality, supra note 15; L.A. Peplau & K.P. Beals,
The Family Lives of Lesbians and Gay Men, in Handbook of
Family Communication 233, 236 (A.L. Vangelisti ed., 2004).
17
E. Durkheim, Suicide: A Study in Sociology 259 (J.A.
Spaulding & G. Simpson trans., Glencoe, Ill.: Free Press 1951)
(original work published 1897).
18
P. Berger & H. Kellner, Marriage and the Construction of
Reality: An Exercise In the Microsociology of Knowledge, 12
Diogenes 1 (1964).
19
W.R. Gove et al., The Effect of Marriage on the Well-Being of
Adults: A Theoretical Analysis, 11 J. Fam. Issues 4, 16 (1990).
20
See S. Stack & J.R. Eshleman, Marital Status and
Happiness: A 17-Nation Study, 60 J. Marriage & Fam. 527
(1998); R.P.D. Burton, Global Integrative Meaning as a
Mediating Factor in the Relationship Between Social Roles and
Psychological Distress, 39 J. Health & Soc. Behav. 201 (1998);
Gove et al., supra note 19, at 5.
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15


the physical and psychological health of married
individuals and for the relationship itself.
Because marriage rights have been granted to
same-sex couples only recently and only in a few
jurisdictions, no empirical studies have yet been
published that compare married same-sex couples to
unmarried same-sex couples, or those in civil unions.
Based on their scientific and clinical expertise, Amici
believe it is appropriate to extrapolate from the
empirical research literature for heterosexual
couples—with qualifications as necessary—to
anticipate the likely effects of marriage for same-sex
couples.
21

Married men and women generally experience
better physical and mental health than their
unmarried counterparts.
22
These health benefits do

21
Researchers recognize that comparisons between married
and unmarried heterosexual couples are complicated by the
possibility that observed differences might be due to self-
selection. After extensive study, however, researchers have
concluded that benefits associated with marriage result largely
from the institution itself rather than self-selection. See, e.g.,
Gove et al., supra note 19, at 10; J.E. Murray, Marital
Protection and Marital Selection: Evidence from a Historical-
Prospective Sample of American Men, 37 Demography 511
(2000). It is reasonable to expect that same-sex couples who
choose to marry, like their heterosexual counterparts, will
benefit from the institution of marriage itself.
22
See N.J. Johnson et al., Marital Status and Mortality: The
National Longitudinal Mortality Study, 10 Annals
Epidemiology 224 (2000); C.E. Ross et al., The Impact of the
Family on Health: The Decade in Review, 52 J. Marriage &
Fam. 1059 (1990); R.W. Simon, Revisiting the Relationships
Among Gender, Marital Status, and Mental Health, 107 Am. J.
Soc. 1065 (2002).
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16


not appear to result simply from being in an intimate
relationship, for most studies have found that
married heterosexual individuals generally manifest
greater well-being than those of comparable
cohabiting couples.
23
Of course, marital status alone
does not guarantee greater health or happiness.
People who are unhappy in marriage often manifest
lower levels of well-being than the unmarried, and
marital discord and dissatisfaction is often
associated with negative health effects.
24

Nevertheless, satisfied married couples consistently
manifest higher levels of happiness, psychological
well-being, and physical health than the unmarried.
Being married also is a source of stability and
commitment. Marital commitment is a function not
only of attractive forces (i.e., rewarding features of
the partner or relationship) but also of external
forces that serve as constraints on dissolving the
relationship. Barriers to terminating a marriage

23
See supra note 20; see also S.L. Brown, The Effect of Union
Type on Psychological Well-Being: Depression Among
Cohabitors Versus Marrieds, 41 J. Health & Soc. Behav. 241
(2000). But see, e.g., C.E. Ross, Reconceptualizing Marital
Status as a Continuum of Social Attachment, 57 J. Marriage &
Fam. 129 (1995) (failing to detect significant differences in
depression between married heterosexuals and comparable
cohabiting heterosexual couples).
24
See W.R. Gove et al., Does Marriage Have Positive Effects on
the Psychological Well-Being of the Individual?, 24 J. Health &
Soc. Behav. 122 (1983); K. Williams, Has the Future of
Marriage Arrived? A Contemporary Examination of Gender,
Marriage, and Psychological Well-Being, 44 J. Health & Soc.
Behav. 470 (2003); J.K. Kiecolt-Glaser & T.L. Newton, Marriage
and Health: His and Hers, 127 Psychol. Bull. 472 (2001).
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17


include feelings of obligation to one’s family
members; moral and religious values; legal
restrictions; financial concerns; and the anticipated
disapproval of others.
25
In the absence of adequate
rewards, the existence of barriers alone is not
sufficient to sustain a marriage in the long term.
Perceiving one’s intimate relationship primarily in
terms of rewards, rather than barriers to dissolution,
is likely to be associated with greater relationship
satisfaction.
26
Nonetheless, perceived barriers are
negatively correlated with divorce and thus the
presence of barriers may increase partners’
motivation to seek solutions for problems, rather
than rushing to dissolve a salvageable relationship.
27

Lacking access to legal marriage, the primary
motivation for same-sex couples to remain together
derives mainly from the rewards associated with the
relationship rather than from formal barriers to
separation.
28
Given this fact, and the legal and

25
See G. Levinger, Marital Cohesiveness and Dissolution: An
Integrative Review, 27 J. Marriage & Fam. 19 (1965); J.M.
Adams & W.H. Jones, The Conceptualization of Marital
Commitment: An Integrative Analysis, 72 J. Personality & Soc.
Psychol. 1177 (1997).
26
See, e.g., D. Previti & P.R. Amato, Why Stay Married?
Rewards, Barriers, and Marital Stability, 65 J. Marriage &
Fam. 561 (2003).
27
See T.B. Heaton & S.L. Albrecht, Stable Unhappy Marriages,
53 J. Marriage & Fam. 747 (1991); L.K. White & A. Booth,
Divorce Over the Life Course: The Role of Marital Happiness,
12 J. Fam. Issues 5 (1991).
28
L.A. Kurdek, Relationship Outcomes and Their Predictors:
Longitudinal Evidence from Heterosexual Married, Gay

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18


prejudicial obstacles that same-sex partners face, the
prevalence and durability of same-sex relationships
are striking.
IV. The Children of Same-Sex Couples.
A. Many Same-Sex Couples Are Raising
Children.
The 2010 Census reported 111,033 households
headed by same-sex couples with their own children
under 18 years. Among the more than 90,000
California household heads who reported cohabiting
with a same-sex partner, 15,698 had their own
children under 18 living at home.
29
The number of
same-sex couple households reported by the Census
is not an estimate of the total number of gay and
lesbian parents.
30

B. The Factors That Affect the Adjustment of
Children Are Not Dependent on Parental
Gender or Sexual Orientation.
Hundreds of studies over the past 30 years have
elucidated the factors that are associated with
healthy adjustment among children and

Cohabiting, and Lesbian Cohabiting Couples, 60 J. Marriage &
Fam. 553 (1998).
29
2010 Census and 2010 American Community Survey, supra
note 14.
30
The Census does not directly assess participants’ sexual
orientation. Thus, the Census data only include gay and
lesbian parents who were co-habiting with a same sex partner
and who were willing to report their relationship status to the
Census. 2010 Census and 2010 American Community Survey,
supra note 14.
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19


adolescents—i.e., the influences that allow children
and adolescents to function well in their daily lives.
31

The three most important are (1) the qualities of
parent-child relationships, (2) the qualities of
relationships among significant adults (e.g., parents)
in children’s or adolescents’ lives, and (3) available
economic and other resources. As one noted
authority in developmental psychology explained:
Many studies have shown that adjustment
is largely affected by differences in the
quality of parenting and parent-child
relationships, the quality of the
relationships between the parents, and the
richness of the economic and social
resources available to the family; more
recent research signals the importance of
congenital differences as well. Dimensions
of family structure – including such factors
as divorce, single parenthood, and the
parents’ sexual orientation – and biological
relatedness between parents and children
are of little or no predictive importance once
the process variables are taken into account,

31
S. Golombok, Parenting: What Really Counts? (2000); M.E.
Lamb & C. Lewis, The Role of Parent-Child Relationships in
Child Development, in Developmental Science: An Advanced
Textbook 429-68 (M.H. Bornstein & M.E. Lamb eds., 5th ed.
2005); C.J. Patterson, & P.D. Hastings, Socialization in the
Context of Family Diversity, in Handbook of Socialization:
Theory and Research 328-51 (J.E. Grusec & P.D. Hastings eds.,
2007).
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20


because the same factors explain child
adjustment regardless of family structure.
32

In short, many years of research have shown that,
when parent-child and parent-adolescent
relationships are characterized by warmth, love and
affection, emotional commitment, reliability, and
consistency, as well as by appropriate guidance and
limit-setting, children and adolescents are likely to
show more positive adjustment than when these
qualities are absent. Children whose parents
provide loving guidance in the context of secure
home environments are more likely to flourish,
regardless of their parents’ sexual orientation.
33

Research also shows that the quality of
relationships among significant adults in a child’s
life is associated with adjustment. When parental
relationships are characterized by love, warmth,
cooperation, security, and mutual support, children
are more likely to show positive adjustment. In
contrast, when parental relationships are conflict-
ridden and acrimonious, adjustment is likely to be
less favorable. Family instability, household
disruption, and parental divorce are often associated
with poorer adjustment and problems that can last

32
M.E. Lamb, Mothers, Fathers, Families, and Circumstances:
Factors Affecting Children’s Adjustment, 16 Applied
Developmental Sci. 98 (2012).
33
Lamb & Lewis, supra note 31; Patterson & Hastings, supra
note 31.
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21


into adulthood.
34
These correlations are just as true
for children reared by same-sex couples as for
children reared by heterosexual couples.
35

Research with children reared by heterosexual
parents indicates that they do better with two
parenting figures than with one.
36
This finding,
however, has not been tested directly with children
reared by same-sex couples versus a single lesbian,
gay, or bisexual parent.
Finally, researchers acknowledge the association
between child adjustment and access to economic
and other resources. Children with access to
sufficient economic resources are likely to live in
safer neighborhoods, breathe cleaner air, and eat
more nutritious food. They are also more likely to
have opportunities to participate in positive after-

34
See, e.g., P.R. Amato, Children of Divorce in the 1990s: An
Update of the Amato and Keith (1991) Meta-Analysis, 15 J.
Fam. Psychol. 355 (2001).
35
The Family Context of Parenting in Children’s Adaptation to
Elementary School (P.A. Cowan et al. eds., 2005); R.W. Chan et
al., Psychosocial Adjustment Among Children Conceived Via
Donor Insemination By Lesbian and Heterosexual Mothers, 69
Child Dev. 443 (1998); E.M. Cummings et al., Children’s
Responses to Everyday Marital Conflict Tactics in the Home, 74
Child Dev. 1918 (2003); E.M. Cummings et al., Everyday
Marital Conflict and Child Aggression, 32 J. Abnormal Child
Psychol. 191 (2004); Golombok, supra note 31; D. Potter, Same-
Sex Parent Families and Children’s Academic Achievement, 74
J. Marriage & Fam. 556 (2012); M.J. Rosenfeld, Nontraditional
Families and Childhood Progress Through School, 47
Demography 755 (2010).
36
See, e.g., S. McLanahan & G. Sandefur, Growing Up With a
Single Parent: What Hurts, What Helps 39 (1994).
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22


school activities and hence to have access to social
and emotional resources from teammates, coaches,
youth leaders, and others. These children are more
likely to show positive adjustment, regardless of
their parents’ sexual orientation.
37

In short, the very same factors that are linked to
positive development of children with heterosexual
parents are also linked to positive development of
children with lesbian and gay parents.
38

C. There Is No Scientific Basis for Concluding
That Gay and Lesbian Parents Are Any Less
Fit or Capable Than Heterosexual Parents, or
That Their Children Are Any Less
Psychologically Healthy and Well Adjusted.
Assertions that heterosexual couples are better
parents than same-sex couples, or that the children
of lesbian or gay parents fare worse than children of
heterosexual parents, are not supported by the

37
Neighborhood Poverty: Context and Consequences for
Children (J. Brooks-Gunn et al. eds., 1997); Consequences of
Growing Up Poor (G.J. Duncan & J. Brooks-Gunn eds., 1997);
Patterson & Hastings, supra note 31; Potter, supra note 35;
Rosenfeld, supra note 35.
38
See Chan et al., supra note 35; C.J. Patterson, Lesbian and
Gay Parents and Their Children: A Social Science Perspective,
in Contemporary Perspectives on Lesbian, Gay, and Bisexual
Identities, Nebraska Symposium on Motivation 141 (D.A. Hope
ed., 2009); J. Stacey & T.J. Biblarz, (How) Does the Sexual
Orientation of Parents Matter?, 66 Am. Soc. Rev. 159 (2001);
C.J. Telingator & C.J. Patterson, Children and Adolescents of
Lesbian and Gay Parents, 47 J. Am. Acad. Child & Adolescent
Psychiatry 1364 (2008); J.L. Wainright et al., Psychosocial
Adjustment, School Outcomes, and Romantic Relationships of
Adolescents With Same-Sex Parents, 75 Child Dev. 1886 (2004).
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23


cumulative scientific research in this area.
39
Rather,
the vast majority of scientific studies that have
directly compared gay and lesbian parents with
heterosexual parents has consistently shown that the
former are as fit and capable parents as the latter
and that their children are as psychologically healthy
and well adjusted. More research has focused on
lesbian mothers than on gay fathers,
40
but the

39
The research on gay, lesbian, and bisexual parents includes
dozens of empirical studies. Their findings are summarized in
reviews of empirical literature published in respected, peer-
reviewed journals and academic books. Recent reviews include
T.J. Biblarz & J. Stacey, How Does the Gender of Parents
Matter?, 72 J. Marriage & Fam. 3 (2010); A.E. Goldberg,
Lesbian and Gay Parents and Their Children: Research on the
Family Life Cycle (2010); C.J. Patterson, Family Lives of
Lesbian and Gay Adults, in Handbook of Marriage and the
Family 659, 668-71 (G.W. Peterson & K.R. Bush eds., 3d ed.
2013); C.J. Patterson, Children of Lesbian and Gay Parents:
Psychology, Law, and Policy, 64 Am. Psychologist 727 (2009).
For earlier reviews, see, e.g., Stacey & Biblarz, supra note 38;
E.C. Perrin & Comm. on Psychosocial Aspects of Child & Fam.
Health, Technical Report: Coparent or Second-Parent Adoption
by Same-Sex Parents, 109 Pediatrics 341 (2002); C.J. Patterson,
Family Relationships of Lesbians and Gay Men, 62 J. Marriage
& Fam. 1052 (2000); N. Anderssen et al., Outcomes for Children
with Lesbian or Gay Parents: A Review of Studies from 1978 to
2000, 43 Scand. J. Psychol. 335 (2002).
40
See, e.g., H. Bos & T.G.M. Sandfort, Children’s Gender
Identity in Lesbian and Heterosexual Two-Parent Families, 62
Sex Roles 114 (2010); R.H. Farr et al., Parenting and Child
Development in Adoptive Families: Does Parental Sexual
Orientation Matter?, 14 Applied Developmental Sci. 164, 176
(2010); S. Golombok et al., Children with Lesbian Parents: A
Community Study, 39 Developmental Psychol. 20 (2003); I.
Rivers et al., Victimization, Social Support, and Psychosocial
Functioning Among Children of Same-Sex and Opposite-Sex
Couples in the United Kingdom, 44 Developmental Psychol.

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24


published studies that have included gay fathers also
find that they are as fit and able parents as
heterosexual fathers.
41

A 2001 comprehensive survey of peer-reviewed
scientific studies concluded that the evidence from
empirical research “shows that parental sexual
orientation per se has no measurable effect on the
quality of parent-child relationships or on children’s
mental health or social adjustment.”
42
A more recent
review by the same authors noted “the ubiquitous
findings of no differences” in comparisons of the
families of heterosexual couples to those of lesbian or
gay couples, but focused on the relatively small
number of differences that have been reported,
concluding that overall the differences were positive
for the families of same-sex couples at least as often

127 (2008); J.L. Wainright & C.J. Patterson, Delinquency,
Victimization, and Substance Use Among Adolescents With
Female Same-Sex Parents, 20 J. Fam. Psychol. 526 (2006).
41
Farr et al., supra note 40, at 176; see also S. Erich et al., Gay
and Lesbian Adoptive Families: An Exploratory Study of
Family Functioning, Adoptive Child’s Behavior, and Familial
Support Networks, 9 J. Fam. Soc. Work 17 (2005); S. Erich et
al., A Comparative Analysis of Adoptive Family Functioning
with Gay, Lesbian, and Heterosexual Parents and Their
Children, 1 J. GLBT Fam. Stud. 43 (2005). For a review of
earlier research, see C.J. Patterson, Gay Fathers, in The Role of
the Father in Child Development 397, 413 (M.E. Lamb ed., 4th
ed. 2004).
42
Stacey & Biblarz, supra note 38, at 176.
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25


as they were for the families of heterosexual
couples.
43

These conclusions are bolstered by three recent
studies using national probability (i.e.,
representative) samples. One used data from the
National Longitudinal Study of Adolescent Health to
compare adolescents parented by a female couple
with adolescents parented by a heterosexual couple.
The researchers found no differences between the
two groups of adolescents on measures of a large
number of key variables, including psychosocial
adjustment, school outcomes, substance use,
delinquency, victimization experiences, and
relationships with peers.
44

Another study used data from the Early Childhood
Longitudinal Study – Kindergarten cohort (ECLS-K) to
compare the academic achievement of children
growing up in various family structures. When the
effects of significant family transitions (e.g., related

43
Biblarz & Stacey, supra note 39, at 13; see also E.L. Sutfin et
al., How Lesbian and Heterosexual Parents Convey Attitudes
about Gender to their Children: The Role of Gendered
Environments, 58 Sex Roles 501 (2008) (finding that the
children of lesbian mothers were more tolerant of other children
engaging in behaviors that violate traditional gender norms).
Similarly, a recent report by the National Academy of Sciences’
Institute of Medicine concluded that “[s]tudies show that [the
children of lesbian and gay parents] are well adjusted and
developmentally similar to the children of different-sex
parents.” Institute of Medicine, supra note 3, at 234.
44
J.L. Wainright & C.J. Patterson, Peer Relations Among
Adolescents With Female Same-Sex Parents, 44 Developmental
Psychol. 117 (2008); Wainright & Patterson, supra note 40;
Wainright et al., supra note 38.
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26


to parental divorce, separation, or death) were taken
into account, children in same-sex family structures
showed slightly higher achievement levels than
children living with their biological mother and
father (although this difference was not statistically
significant).
45

In the third study, US Census data were used to
compare educational outcomes among children
residing in homes with various types of family
structure. When differences in household income
and parental educational levels (SES) were
statistically controlled, the differences in school
progress between children of married heterosexual
couples and same-sex cohabiting couples were not
statistically significant. As the study’s author
concluded, “[t]he analysis in this article, the first to
use large-sample nationally representative data,
shows that children raised by same-sex couples have
no fundamental deficits in making normal progress
through school.”
46

Studies also show that children with gay or lesbian
parents do not differ from the children of
heterosexual parents in their gender identity (one’s
psychological sense of being male or female).
47


45
Potter, supra note 35. Data about parents’ sexual orientation
were not collected in the study. Consequently, parental sexual
orientation and relationship were inferred from a series of
questions about the household composition and caretakers.
46
Rosenfeld, supra note 35.
47
E.g., Bos & Sandfort, supra note 40. For literature reviews,
see Goldberg, supra note 39; Patterson, Family Lives, supra
note 39; Perrin & Comm., supra note 39, at 342.
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27


Similarly, although some studies have found that
children of lesbian mothers or children raised in
same-sex parent families were more accepting of
gender nonconformity in others
48
and less gender-
stereotyped or more flexible in their patterns of
gender-role behaviors (e.g., during play
49
) than those
of children in heterosexual parent families, most
published studies have found no reliable differences
between the children of lesbian and heterosexual
mothers in social gender role conformity (adherence
to cultural norms defining feminine and masculine
behavior).
50
A recent study also found that adoptive
children of gay fathers showed typical gender role
development, as did those of lesbian mothers and
those of heterosexual mothers and fathers.
51

The available evidence also suggests that parental
sexual orientation has no effect on child sexual

48
Sutfin et al., supra note 43; M. Fulcher et al., Individual
Differences in Gender Development: Associations with Parental
Sexual Orientation, Attitudes, and Division of Labor, 58 Sex
Roles 330 (2008).
49
A.E. Goldberg et al., Gender-Typed Play Behavior in Early
Childhood: Adopted Children with Lesbian, Gay, and
Heterosexual Parents, 67 Sex Roles 503 (2012); R. Green et al.,
Lesbian Mothers and Their Children: A Comparison with Solo
Parent Heterosexual Mothers and Their Children, 15 Archives
Sexual Behav. 167 (1986). An earlier paper (M.E. Hotvedt &
J.B. Mandel, Children of Lesbian Mothers, in Homosexuality:
Social, Psychological, and Biological Issues 275 (W. Paul et al.
eds., 1982)) reported data from the same study.
50
Farr et al., supra note 40. For reviews of the literature, see
Goldberg, supra note 39; Patterson, Family Lives, supra note
39.
51
See Farr et al., supra note 40.
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28


orientation
52
and that the vast majority of gay and
lesbian adults were raised by heterosexual parents
and the vast majority of children raised by gay and
lesbian parents grow up to be heterosexual.
53

Amici emphasize that the abilities of gay and
lesbian persons as parents and the positive outcomes
for their children are not areas where credible
scientific researchers disagree.
54
Thus, after careful
scrutiny of decades of research, the American
Psychological Association concluded in 2004 that (a)
“there is no scientific evidence that parenting
effectiveness is related to parental sexual

52
Golombok et al., supra note 40; S. Golombok & F. Tasker, Do
Parents Influence the Sexual Orientation of Their Children?
Findings from a Longitudinal Study of Lesbian Families, 32
Developmental Psychol. 3 (1996).
53
Goldberg, supra note 39; Patterson, Family Lives, supra note
39.
54
One unreplicated 1996 Australian study purports to show
deficits in lesbian and gay parents and their children. See S.
Sarantakos, Children in Three Contexts: Family, Education
and Social Development, 21 Child. Australia 23 (1996). But the
anomalous Sarantakos results are likely the result of multiple
methodological problems, especially confounding the effects of
parental sexual orientation with the effects of parental divorce,
which is known to correlate with poor adjustment and academic
performance. See, e.g., Amato, supra note 34. Some
commentators have cited publications by Paul Cameron, but his
work has been repeatedly discredited for bias and
inaccuracy. See G.M. Herek, Bad Science in the Service of
Stigma: A Critique of the Cameron Group’s Survey Studies, in
Stigma and Sexual Orientation: Understanding Prejudice
Against Lesbians, Gay Men, and Bisexuals 223 (G.M. Herek
ed., 1998); Baker v. Wade, 106 F.R.D. 526, 536 (N.D. Tex. 1985)
(ruling that Cameron made “misrepresentations” to the court).
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29


orientation: Lesbian and gay parents are as likely as
heterosexual parents to provide supportive and
healthy environments for their children” and (b) that
“research has shown that the adjustment,
development, and psychological well-being of
children are unrelated to parental sexual orientation
and that the children of lesbian and gay parents are
as likely as those of heterosexual parents to
flourish.” Am. Psychol. Ass’n, Resolution on Sexual
Orientation, Parents, and Children (2004), available
at http://www.apa.org/about/governance/council/
policy /parenting.pdf.
Similarly, the American Academy of Pediatrics has
recently adopted a policy statement which states:
“Scientific evidence affirms that children have
similar developmental and emotional needs, and
receive similar parenting, whether they are raised by
parents of the same or different genders. If a child
has 2 living and capable parents who choose to
create a permanent bond by way of civil marriage, it
is in the best interests of their child(ren) that legal
and social institutions allow and support them to do
so, irrespective of their sexual orientation.” Am.
Acad. of Pediatrics, Committee on Psychosocial
Aspects of Child and Family Health, Policy
Statement: Promoting the Well-Being of Children
Whose Parents are Gay or Lesbian, 131 Pediatrics
(forthcoming 2013).
NASW has similarly determined that “[t]he most
striking feature of the research on lesbian mothers,
gay fathers, and their children is the absence of
pathological findings. The second most striking
feature is how similar the groups of gay and lesbian
parents and their children are to heterosexual
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30


parents and their children that were included in the
studies.” Nat’l Ass’n of Soc. Workers, Policy
Statement: Lesbian, Gay, and Bisexual Issues, in
Social Work Speaks 193, 194 (4th ed. 1997). See also
Nat’l Ass’n of Soc. Workers, Policy Statement:
Family Planning and Reproductive Choice, in Social
Work Speaks 129, 132 (9th ed. 2012).
The American Psychoanalytic Association has
likewise determined that “[t]here is no credible
evidence that shows that a parent’s sexual
orientation or gender identity will adversely affect
the development of the child.” Am. Psychoanalytic
Ass’n, Position Statement: Parenting (2012),
available at http://www.apsa.org/about_apsaa/
position_statements/parenting.aspx.
In adopting an official Position Statement in
support of legal recognition of same-sex civil
marriage, the American Psychiatric Association
observed that “no research has shown that the
children raised by lesbians and gay men are less well
adjusted than those reared within heterosexual
relationships.” Am. Psychiatric Ass’n, Position
Statement: Support of Legal Recognition of Same-
Sex Civil Marriage (2005), available at
http://www.psych.org/Departments/EDU/
Library/APAOfficialDocumentsandRelated/PositionS
tatements/200502.aspx.
Finally, the American Medical Association likewise
has adopted a policy supporting legislative and other
reforms to allow adoption by same sex partners.
55


55
See Am. Med. Ass’n, Policy H-60.940, Partner Co-Adoption,
available at http://www.ama-assn.org/ama/pub/about-ama/our-

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V. Challenges to the Evidence on Same-Sex
Parents by Other Amici Are Unfounded.
A. The Methodological Criticisms Fail to
Recognize the Cumulative Nature of Scientific
Research.
Scientific research is a cumulative process.
Empirical studies inevitably have limitations.
Simply because a particular study’s methodology has
imperfections or its results warrant qualifications
does not mean that the entire study should be
dismissed. Rather, it should be evaluated within the
context of the cumulative relevant research,
recognizing that some studies’ strengths can offset
other studies’ corresponding limitations.
Amici who challenge all empirical findings in this
area because some studies used small nonprobability
samples
56
ignore the fact that many findings from
those studies have been replicated in national
probability samples.
57
They also fail to acknowledge
that studies with nonprobability samples can answer

people/member-groups-sections/glbt-advisory-committee/ama-
policy-regarding-sexual-orientation.page.
56
E.g., Amicus Br. of Social Science Professors, at 13-21.
57
Wainright & Patterson, Delinquency, supra note 40 (finding
no differences due to parent sexual orientation between 44
adolescents raised by same-sex couples and 44 by heterosexual
couples, all drawn from a national representative sample);
Wainright & Patterson, Peer Relations, supra note 44 (same);
Potter, supra note 35; Rosenfeld, supra note 35 (using US
Census data).
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32


important scientific questions, especially when they
include appropriate comparison groups.
58

Moreover, amici do not claim the studies are
invalid, only that their implications are limited to
“children raised by highly educated and affluent
middle to upper class white women.”
59
Even in those
studies that are so limited, appropriate comparison
across sexual orientation groups can test the claim
that sexual orientation affects parenting, and the
recent research on national probability samples
reinforces these studies. Amici herein do not claim
that all same-sex couples will be equally effective in
raising children,
60
but rather that sexual orientation
is irrelevant to parenting outcomes.
61


58
See supra note 2. One amicus disparages “nearly all
previous studies” because they failed to include “a married
biological family control group.” Amicus Br. of Social Science
Professors, at 25. But many studies have appropriately
included such a group, and their findings are largely consistent
with the overall patterns described herein. See, e.g., Potter,
supra note 35; Rosenfeld, supra note 35; Wainright &
Patterson, Peer Relations, supra note 44; Wainright &
Patterson, Delinquency, supra note 40; Wainright et al., supra
note 38. Moreover, the correct comparison group depends on
the nature of the study. For example, comparing children of
married heterosexual couples to children of single lesbian
mothers would conflate parent sexual orientation with number
of parents. The appropriate comparison group in such studies
is the children of single heterosexual mothers.
59
E.g., Amicus Br. of Social Science Professors, at 20.
60
E.g., factors such as access to economic resources affect child
development outcomes (note 26 above).
61
Several amici criticizing studies cited here rely on L. Marks,
Same-Sex Parenting and Children’s Outcomes: A Closer

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33


B. The Regnerus Study Does Not Provide
Evidence That Parental Sexual Orientation
Affects Child Development Outcomes.
Several amici base their challenge on a recent
study (“the Regnerus study”) that compared child
development outcomes across a range of family
types, including two types that were characterized as
“lesbian mother” and “gay father” families.
62
But the
study’s design precludes any meaningful conclusions
because of its overbroad definition of children raised
by gay or lesbian parents and its conflation of family
instability with any potential effects of parental
sexual orientation.
The methodological flaws in the study are
examined in greater detail in the Brief of The
American Psychological Association et al. filed on
March 1, 2013 in United States v. Windsor, et al.,
No. 12-307, at pages 29 to 34. Those flaws led an
independent auditor appointed by the journal that
published the study to describe it as “a non-scientific
study” and conclude it should not have been

Examination of the American Psychological Association’s Brief
on Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735 (2012).
Marks opined that studies cited in an APA 2005 pamphlet (not
a brief) allow no conclusions regarding lesbian and gay
parenting. This wholesale rejection of an entire body of
research fails to recognize the realities of the nature of scientific
knowledge as discussed above. Moreover, Amici’s conclusions
drawn from those earlier studies are borne out by the research
subsequent to 2005.
62
M. Regnerus, How Different are the Adult Children of
Parents Who Have Same-Sex Relationships? Findings from the
New Family Structures Study, 41 Soc. Sci. Res. 752 (2012).
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34


published.
63
Moreover, over 200 scientists, clinicians,
and academics signed a letter to the journal's
editorial board commenting on the study’s scientific
deficiencies.
64

VI. Denying the Status of Marriage to Same-Sex
Couples Stigmatizes Them.
The foregoing shows that the beliefs about gay men
and lesbian women advanced to support Proposition
8—about their capacity for committed, long lasting
relationships, and their ability to raise healthy well-
adjusted children—are contradicted by the scientific
evidence and instead reflect an unreasoned
antipathy towards an identifiable minority. In
depriving gay men and lesbian women of
membership in an important social institution,
Proposition 8 conveys the state’s judgment that
committed intimate relationships between people of
the same sex are inferior to heterosexual
relationships. This is the essence of stigma.
A stigmatized condition or status is negatively
valued by society, defines a person’s social identity,

63

D.E. Sherkat, The Editorial Process and Politicized
Scholarship: Monday Morning Editorial Quarterbacking and a
Call for Scientific Vigilance, 41 Soc. Sci. Res. 1346 (2012).
64
G.J. Gates et al., Letter to the editors and advisory editors of
Social Science Research, 41 Soc. Sci. Res. 1350, 1351 (2012)
(noting that the study “could not actually directly examine the
impact of having a gay or lesbian parent” because of the
“unusual method” of defining those groups, and that it “fails to
distinguish family structure and family instability,” and
concluding that “[t]he methodologies used in this paper and the
interpretation of the findings are inappropriate”).
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35


and thus disadvantages that person.
65
A classic work
in this area characterized stigma as “an undesired
differentness.”
66
It can be manifested both in social
institutions, such as the law, and in individual
behaviors. Laws that accord majority and minority
groups differing status highlight the perceived
“differentness” of the minority and thereby tend to
legitimize prejudicial attitudes and individual acts
against the disfavored group, including ostracism,
harassment, discrimination, and violence. Large
numbers of lesbian, gay, and bisexual people
experience such acts of prejudice because of their
sexual orientation.
67



65
See E. Goffman, Stigma: Notes on the Management of Spoiled
Identity (1963); B.G. Link & J.C. Phelan, Conceptualizing
Stigma, 27 Ann. Rev. Soc. 363 (2001); J. Crocker et al., Social
Stigma, in 2 The Handbook of Social Psychology 504 (D.T.
Gilbert et al. eds., 4th ed. 1998); Am. Med. Ass’n, Policy H-
65.973, Health Care Disparities in Same-Sex Partner
Households, available at http://www.ama-assn.org/ama/pub/
about-ama/our-people/member-groups-sections/glbt-advisory-
committee/ama-policy-regarding-sexual-orientation.page
(recognizing that “exclusion from civil marriage contributes to
health care disparities affecting same-sex households”).
66
Goffman, supra note 65, at 5.
67
A national survey of a representative sample of gay, lesbian,
and bisexual adults found that 21% of them had been the target
of a physical assault or property crime since age 18 because of
their sexual orientation. Thirty-eight percent of gay men had
been the target of assault or property crime because of their
sexual orientation. Eighteen percent of gay men and 16% of
lesbians reported they had experienced discrimination in
housing or employment. G.M. Herek, Hate Crimes and Stigma-
Related Experiences Among Sexual Minority Adults in the
United States: Prevalence Estimates from a National

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36


Proposition 8 is an instance of institutional stigma.
It conveys the government’s judgment that, in the
realm of intimate relationships, a legally united
same-sex couple is inherently less deserving of
society’s full recognition than are heterosexual
couples. As the Ninth Circuit correctly recognized,
Proposition 8 “lessen[s] the status and human
dignity of gays and lesbians in California.” Perry,
671 F.3d at 1063. By devaluing and delegitimizing
the relationships that constitute the very core of a
homosexual orientation, Proposition 8 compounds
and perpetuates the stigma historically attached to
homosexuality. This Court has repeatedly
recognized the unconstitutional nature of
stigmatizing legislation based on stereotypic
classifications. See Heckler v. Mathews, 465 U.S.
728, 739-40 (1984) (“[A]s we have repeatedly
emphasized, discrimination itself, by perpetuating
‘archaic and stereotypic notions’ or by stigmatizing
members of the disfavored group as ‘innately inferior’
and therefore as less worthy participants in the
political community* * * can cause serious non-
economic injuries to those persons who are
personally denied equal treatment solely because of
their membership in a disfavored group.”) (footnote
and citations omitted).

Probability Sample, 24 J. Interpersonal Violence 54 (2009); see
also G.M. Herek et al., Psychological Sequelae of Hate-Crime
Victimization Among Lesbian, Gay, and Bisexual Adults, 67 J.
Consulting & Clinical Psychol. 945, 948 (1999); M.V.L. Badgett,
Money, Myths, and Change: The Economic Lives of Lesbians
and Gay Men (2001).
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37


CONCLUSION
The judgment below should be affirmed.
Respectfully submitted,

NATHALIE F.P. GILFOYLE
AMERICAN PSYCHOLOGICAL
ASSOCIATION
750 First Street, N.E.
Washington, DC 20002
(202) 336-6186
PAUL M. SMITH
Counsel of Record
JENNER & BLOCK LLP
1099 New York Avenue,
NW
Washington, DC 20001
(202) 639-6000
[email protected]

WILLIAM F. SHEEHAN
ANDREW HUDSON
GOODWIN | PROCTER LLP
901 New York Avenue, NW
Washington, D.C. 20001
(202) 346-4000

Counsel for Amici Curiae

February 28, 2013
Case 3:13-cv-00750-JGH Document 38-8 Filed 12/16/13 Page 62 of 62 PageID #: 463
THERESA BASSETT, CAROL KENNEDY, PETER WAYS, JOE BREAKEY,
JOLINDA JACH, BARBARA RAMBER, DOAK BLOSS, GERARDO ASCHERI,
MICHELLE JOHNSON, and DENISE MILLER, Plaintiffs, v. GOVERNOR
RICHARD SNYDER, Defendant.
Case Number 12-10038
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
MICHIGAN, SOUTHERN DIVISION
2013 U.S. Dist. LEXIS 93345
June 28, 2013, Decided
June 28, 2013, Filed
COUNSEL: [*1] For Theresa Bassett, Carol Kennedy,
Peter Ways, Joe Breakey, Jolinda Jach, Barbara Ramber,
Doak Bloss, Gerardo Ascheri, Plaintiffs: Amanda C.
Goad, American Civil Liberties Union Foundation, New
York, NY; Amy E. Crawford, Bradley H.
Weidenhammer - NOT SWORN, Donna M. Welch,
Kirkland & Ellis LLP, Chicago, IL; Jay Kaplan,
American Civil Liberties of Michigan, Detroit, MI; John
A. Knight, American Civil Liberties Union Foundation,
LGBT & AIDS Project, Chicago, IL; Michael J.
Steinberg, American Civil Liberties Union Fund of
Michigan, Detroit, MI.
For Michelle Johnson, Denise Miller, Plaintiffs: Amanda
C. Goad, American Civil Liberties Union Foundation,
New York, NY; Amy E. Crawford, Bradley H.
Weidenhammer - NOT SWORN, Donna M. Welch,
Kirkland & Ellis LLP, Chicago, IL; Jay Kaplan,
American Civil Liberties of Michigan, Detroit, MI;
Michael J. Steinberg, American Civil Liberties Union
Fund of Michigan, Detroit, MI.
For Governor Richard Snyder, Defendant: Margaret A.
Nelson, Michigan Department of Attorney General,
Public Employment, Elections and Tort, Lansing, MI;
Mark E. Donnelly, Michigan Department of Attorney
General, Tort Defense Division, Lansing, MI.
For Louis Padnos Iron and Metal [*2] Company,
Cengage Learning Holdings II, L.P. Amicus: Andrea E.
Hayden, Pepper Hamilton, Southfield, MI.
JUDGES: Honorable DAVID M. LAWSON, United
States District Judge.
OPINION BY: DAVID M. LAWSON
OPINION
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO
DISMISS AND GRANTING PLAINTIFFS'
MOTION FOR PRELIMINARY INJUNCTION
The plaintiffs in this case are five same-sex couples
who allege that Michigan Public Act 297 (2011) is
unconstitutional because it violates their rights under the
Equal Protection and Due Process Clauses. Public Act
297 prohibits public employers from providing medical
and other fringe benefits to any person cohabitating with
a public employee unless that person is legally married to
the employee, or is a legal dependent, or eligible to
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Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 1 of 22 PageID #: 464
inherit under the State's intestacy laws. The plaintiffs
allege that the primary purpose of the law is to prohibit
public employers from furnishing benefits to the
same-sex partners of their employees, and therefore the
Act denies their right to equal protection because it
contains a discriminatory classification on the basis of
sex and sexual orientation and is not rationally related to
a legitimate state interest. The plaintiffs also argue [*3]
that the act impermissibly burdens their fundamental
right to intimate association and therefore violates their
substantive due process rights. Many of the plaintiffs who
are in relationships with public employees but not so
employed themselves have lost their medical benefits,
and the rest will do so shortly. They have moved for a
preliminary injunction to prevent enforcement of the law.
The defendant -- Michigan's Governor -- opposes the
preliminary injunction and has filed a motion to dismiss,
arguing that the Court should abstain from exercising
jurisdiction, the plaintiffs lack standing, the plaintiffs'
claims are not ripe, and the plaintiffs have failed to plead
either an equal protection or a substantive due process
claim upon which relief can be granted. The Court heard
oral argument on both motions on August 7, 2012.
Thereafter, the Court allowed the parties to file
supplemental briefs concerning the scope of the remedies
available. The Court now finds that the plaintiffs have
standing to assert their constitutional claims, the claims
are ripe, and abstention is not appropriate. The Court also
finds that the plaintiffs have not stated a viable
substantive due process claim.
The [*4] equal protection claim is another matter.
The plaintiffs argue that although Public Act 297 does
not mention same-sex unions or describe same-sex
partner benefits by name, the intended purpose of the law
is to discriminate against same-sex couples on the basis
of their sexual orientation without actually saying so. The
defendant contends that the Act has no such purpose;
instead, the intention behind passage of the law was to
save money by restricting the scope of public employee
benefits. The Court finds that the plaintiffs have stated a
plausible claim that the law violates the Equal Protection
Clause when the rational basis for the benefits limitations
is fairly analyzed, and they have shown a likelihood of
succeeding on that claim. The other relevant factors
plainly militate in favor of a preliminary injunction
barring enforcement of the law. Therefore, the Court will
grant in part and deny in part the defendant's motion to
dismiss, and grant the plaintiffs' motion for a preliminary
injunction.
I.
A.
The plaintiffs in this case are five same-sex couples
who have lived together in long-term relationships,
residing in various Michigan communities. One domestic
partner of each of the [*5] couples works for a public
employer, such as a county, city, or school district. Those
public employers provide fringe benefits, such as medical
coverage, and historically have extended coverage to the
domestic partners of the plaintiff-couples under the
various collective bargaining agreements between the
governmental units and their employees. Each of the
public-employee plaintiffs is a skilled employee whose
job duties are equivalent to the duties of their
heterosexual colleagues. They each have enjoyed a
long-term, committed, and financially interdependent
relationship with their respective domestic partner and
would marry if Michigan law permitted same-sex couples
to marry.
According to the complaint, before 2004, a number
of Michigan public employers voluntarily provided health
insurance benefits to same-sex domestic partners. In
2004, the Michigan constitution was amended to include
article I, section 25, which states: "To secure and
preserve the benefits of marriage for our society and for
future generations of children, the union of one man and
one woman in marriage shall be the only agreement
recognized as a marriage or similar union for any
purpose." Mich. Const. Art. 1, § 25 [*6] [hereinafter "the
marriage amendment"]. In 2005, then-Michigan attorney
general Michael Cox issued an opinion on the City of
Kalamazoo's domestic partner benefits allowance. Cox
opined that although the provision of benefits to same-sex
domestic partners was not itself unlawful, state and local
governments could not provide those benefits on the basis
of a relationship "characterized by reference to the
attributes of a marriage." Constitutionality of City
Providing Same-Sex Domestic Partnership Benefits,
Mich. Att'y Gen. Op. 7171 (Mar. 16, 2005), available at
http://www.ag.state.mi.us/opinion/datafi
les/2000s/op10247.htm (last visited May 31, 2013).
In 2006, a union group, various public employees,
and their domestic partners filed a lawsuit seeking a
declaratory ruling that the marriage amendment did not
prohibit public employers from offering benefits to
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2013 U.S. Dist. LEXIS 93345, *2
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same-sex domestic partners. The Michigan Court of
Appeals found that the plans instituted by government
agencies offering same-sex domestic partner benefits
established eligibility criteria similar to marriage.
National Pride At Work, Inc. v. Governor of Michigan,
274 Mich. App. 147, 164, 732 N.W.2d 139, 151 (2007).
The court held [*7] that extending benefits to same-sex
domestic partners on that basis violated the marriage
amendment's ban on recognizing a "similar union," but
that "[t]he amendment as written does not preclude the
extension of employment benefits to unmarried partners
on a basis unrelated to recognition of their agreed-upon
relationship." Id. at 165, 172, 732 N.W.2d at 151, 155.
The Michigan Supreme Court affirmed the court of
appeals' decision. National Pride At Work, Inc. v.
Governor of Michigan, 481 Mich. 56, 748 N.W.2d 524
(2008). The court reasoned that the requirements of the
benefit plans at issue that partners be of a certain sex --
the same sex as their partner -- and not be closely related
by blood were so similar to the requirements for marriage
as to constitute a "similar union" that could not be
recognized by public employers. Id. at 86-87, 748
N.W.2d at 543.
As a result of those holdings, some public
employers, including the publicly-employed plaintiffs'
employers, revised their employee benefits plans. The
City of Kalamazoo, the Ann Arbor Public Schools, and
Ingham County all adopted benefit plans that permit
employees to designate a person with whom he or she
lives and, with the exception [*8] of the City of
Kalamazoo, shares finances as an "Other Qualified
Adult" (OQA), entitled to receive benefits. Those plans
also require that the OQA not be eligible to inherit from
the employee, be related to the employee by blood in a
degree of closeness that would prohibit marriage in
Michigan, and not otherwise be eligible for benefits from
the public employer. The OQA could be of either sex.
Other public employers that do not have employees
involved in this suit but provide a similar program
include the City of Ann Arbor, Washtenaw and Eaton
Counties, the school districts of Birmingham and
Farmington, and Kalamazoo Valley and Lansing
Community Colleges.
In January 2011, the Michigan Civil Service
Commission, which is granted plenary power to regulate
compensation for state employees by the Michigan
constitution, announced that it had decided to extend
health care benefits to certain adult co-residents of state
employees. Some state legislators issued press releases
condemning that decision, characterizing it as an
extension of health benefits to same-sex partners of state
employees. On June 16, 2011, Representatives David
Agema and Peter Lund, among others, introduced House
Bill No. [*9] 4770, the Public Employee Domestic
Partner Benefit Restriction Act. HB-4770, As Passed
House, September 15, 2011, available at
http://www.legislature.mi.gov/documents/
2011-2012/billengrossed/House/htm/2011-H
EBH-4770.htm (last visited May 31, 2013). The Bill
passed both houses of the Michigan Legislature and was
signed by the defendant on December 22, 2011. It
became effective on the same date. The governor's
signing statement states that the law does not extend to
university employees or state employees under civil
service. The Act reads, in relevant part:
Sec. 3. (1) A public employer shall not
provide medical benefits or other fringe
benefits for an individual currently
residing in the same residence as a public
employee, if the individual is not 1 or
more of the following:
(a) Married to the
employee.
(b) A dependent of the
employee, as defined in the
internal revenue code of
1986.
(c) Otherwise eligible to
inherit from the employee
under the laws of intestate
succession in this state.
(2) A provision in a contract entered
into after the effective date of this act that
conflicts with the requirements of this act
is void.
Sec. 4. If a collective bargaining
agreement or other contract that [*10] is
inconsistent with section 3 is in effect for a
public employee on the effective date of
this act, section 3 does not apply to that
group of employees until the collective
bargaining agreement or other contract
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2013 U.S. Dist. LEXIS 93345, *6
Case 3:13-cv-00750-JGH Document 38-9 Filed 12/16/13 Page 3 of 22 PageID #: 466
expires or is amended, extended, or
renewed.
2011 Mich. Pub. Acts 297; Mich. Comp. Laws §§
15.583-.584.
B.
According to the complaint and the affidavits filed in
support of the motion for preliminary injunction, the five
same-sex couples who are the plaintiffs in this case have
been involved in longstanding, committed relationships.
Theresa Bassett and Carol Kennedy celebrated their
twenty-sixth anniversary in November 2012. They had a
commitment ceremony in Michigan in 1990, registered as
domestic partners in Ann Arbor the same year, and were
legally married in California in 2008. They are raising six
children between the ages of six and twenty. Bassett is a
middle school teacher at Slauson Middle School in Ann
Arbor with duties similar to heterosexual teachers;
Kennedy is self-employed and runs a day care from the
couple's home. Kennedy does not have access to an
employer-provided health care plan; she is currently
covered under Bassett's insurance as an "Other Eligible
Adult."
Peter [*11] Ways and Joe Breaky have been partners
for twenty-one years. They held a commitment ceremony
in 1998 and affirm that they would marry if Michigan law
permitted it. The couple is raising a nine-year-old
daughter. Ways has worked as a teacher in the Ann Arbor
Public Schools for eleven years and has duties similar to
heterosexual teachers; Breaky is a social worker who
operates his private practice from the couple's home.
Breaky does not have access to employer-provided health
care; he is currently covered under Ways's insurance as
an "Other Eligible Adult."
JoLinda Jach and Barbara Ramber have been
partners for seventeen years. They held a commitment
ceremony in 1997 and aver that they would marry if
Michigan law permitted it. The couple is raising two
children. Jach has worked as a systems analyst for the
City of Kalamazoo for twenty-four years and has duties
similar to heterosexual senior systems analysts; Ramber
works part-time in the food service division of
Kalamazoo Public Schools. Ramber does not have access
to health insurance as a part-time employee, and she lost
coverage under Jach's insurance on December 31, 2012.
Doak Bloss and Gerardo Ascheri have been partners
for eighteen [*12] years and state that they would marry
if Michigan law permitted it. Bloss is the Health Equity
and Social Justice Coordinator for Ingham County and
has responsibilities similar to the heterosexual
Environmental Justice Coordinator for the county;
Ascheri teaches piano from the couple's home. Ascheri
does not have access to employer-provided health
insurance; he lost coverage under Bloss's insurance on
December 31, 2012.
Denise Miller and Michelle Johnson have been
partners for eight years. They held a commitment
ceremony in 2004. Miller teaches at Kalamazoo Valley
Community College and has duties similar to
heterosexual teachers; Johnson is the Executive Director
of a nonprofit organization. Johnson does not have access
to employer-provided health insurance. She was
previously covered by Miller's plan but lost her benefits
after Public Act 297 passed.
C.
The plaintiffs filed their initial complaint on January
5, 2012. The complaint contained three counts: an equal
protection claim based on sexual orientation and sex, a
substantive due process claim, and a "claim" for
declaratory and injunctive relief. The plaintiffs filed an
amended complaint on February 17, 2012 with the same
claims [*13] and additional plaintiffs.
The defendant did not file an answer to the amended
complaint initially; instead, the defendant filed a motion
to dismiss, followed a few days later by an amended
motion to dismiss. The defendant filed an answer to the
amended complaint on March 22, 2012.
The plaintiffs filed a motion for a preliminary
injunction, which the defendant opposes. The motion and
response are supported by factual affidavits. The Court
held a hearing at which some of the plaintiffs testified on
August 7, 2012. Both parties filed supplemental briefs
addressing appropriate remedies on August 21, 2012.
II.
The motion to dismiss and the motion for
preliminary injunction raise many overlapping legal
issues. The motion to dismiss, however, includes a
challenge to subject matter jurisdiction, which, of course,
the Court must address at the outset.
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2013 U.S. Dist. LEXIS 93345, *10
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A.
The defendant contends that the plaintiffs lack
standing to assert their claims, and therefore the Court
does not have subject matter jurisdiction over a live
controversy. Standing is required in order to confer
subject matter jurisdiction upon federal courts under
Article III of the Constitution. It is "the [*14] threshold
question in every federal case." Warth v. Seldin, 422 U.S.
490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). The
Supreme Court has stated that the standing requirement
"limits federal court jurisdiction to actual controversies so
that the judicial process is not transformed into 'a vehicle
for the vindication of the value interests of concerned
bystanders.'" Coal Operators & Assocs., Inc. v. Babbitt,
291 F.3d 912, 915-16 (6th Cir. 2002) (quoting Valley
Forge Christian College v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 473, 102 S. Ct. 752,
70 L. Ed. 2d 700 (1982)).
There are three constitutional requirements for
standing. See Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167,
180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000); City of
Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir. 2007).
"To establish Article III standing, a litigant must show (1)
an injury in fact; (2) a causal connection between the
injury and the conduct complained of; and (3) that the
injury will likely be redressed by a favorable decision."
Barnes v. City of Cincinnati, 401 F.3d 729, 739 (6th Cir.
2005) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).
In addition, a plaintiff must also satisfy three prudential
standing requirements. [*15] See City of Cleveland, 508
F.3d at 835. First, a plaintiff must "assert his own legal
rights and interests, and cannot rest his claim to relief on
the legal rights or interests of third parties." Warth, 422
U.S. at 499 (citations omitted). Second, "a plaintiff's
claim must be more than a 'generalized grievance' that is
pervasively shared by a large class of citizens." Coal
Operators, 291 F.3d at 916 (quoting Valley Forge, 454
U.S. at 474-75). Third, in statutory cases, the plaintiff's
claim must fall within the "zone of interests" regulated by
the statute in question. Ibid. "These additional restrictions
enforce the principle that, 'as a prudential matter, the
plaintiff must be a proper proponent, and the action a
proper vehicle, to vindicate the rights asserted.'" Ibid.
(quoting Pestrak v. Ohio Elections Comm'n, 926 F.2d
573, 576 (6th Cir. 1991)).
The defendant argues that the plaintiffs do not satisfy
the constitutional standing requirements because, except
for plaintiffs Miller and Johnson, none of them have lost
medical benefits and they have not pleaded facts
establishing an injury that is concrete, objective, and
palpable. The defendant also contends that the plaintiffs
cannot [*16] show a causal relationship between Public
Act 297 and any harm they have suffered. Because the
plaintiffs cannot show an injury or causation, the
defendant reasons, they also cannot demonstrate that a
favorable decision is likely to redress their injury. The
defendant argues that the plaintiffs cannot satisfy the
prudential requirement because they are attempting to
assert claims on behalf of their respective partners. The
Court will discuss each of these arguments.
1.
It is the plaintiffs' obligation to allege an injury that
he or she has suffered that is "(a) concrete and
particularized and (b) actual or imminent, as opposed to
conjectural or hypothetical." Ailor v. City of
Maynardville, 368 F.3d 587, 596 (6th Cir. 2004). "At the
pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice, for on
a motion to dismiss, [the Court] 'presumes that general
allegations embrace those specific facts that are necessary
to support the claim.'" Lujan v. Defenders of Wildlife, 504
U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)
(quoting Lujan v. National Wildlife Federation, 497 U.S.
871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)). In
Lujan v. Defenders of Wildlife, the Supreme Court
explained that such an [*17] injury, if it had not already
occurred, must be "imminent," that is, likely to occur
immediately. Id. at 564.
The plaintiffs among them have shown both actual
and imminent injuries. Carol Kennedy has alleged that
she does not have access to an employer-provided health
care plan except through her partner, Theresa Bassett.
She will lose her health insurance when Bassett's union
contract with the Ann Arbor Public Schools ends if
Public Act 297 remains in effect. Kennedy has a family
history of breast cancer and finding replacement
insurance will be expensive. Likewise, Joe Breaky does
not have access to employer-provided health care, and he
will lose insurance when Peter Ways's contract with Ann
Arbor Public Schools expires if Public Act 297 remains
in effect. Breaky says that replacement insurance for him
will cost between $8,000 and $10,000 per year. Barbara
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Ramber does not have access to health insurance as a
part-time employee. She lost health care coverage
through her partner, JoLinda Jach, on December 31, 2012
because of Public Act 297. Ramber has serious problems
with her left eye that require daily medication and has
been diagnosed with rheumatoid arthritis and
gastroesophageal [*18] reflux disease, which requires
medication and may require a series of endoscopy
procedures; alternative health coverage would be difficult
to obtain and purchasing coverage from her employer
would cost more than half of Ramber's monthly
take-home pay. Gerardo Ascheri does not have access to
employer-provided health insurance; he lost his health
care coverage through Doak Bloss on December 31, 2012
because of Public Act 297. Ascheri alleges that he has
high blood pressure and high cholesterol, for which he
takes medication. Michelle Johnson previously was
covered by Denise Miller's health care plan, but she lost
her benefits after Public Act 297 passed. Johnson has
non-malignant uterine fibroid tumors that may require
surgery, fibrous breast tissue that requires yearly
monitoring, and a family history of aneurysm that
requires that she have regular scans.
In addition to establishing a present actual injury, the
plaintiffs have shown imminent injury -- "that the
threatened injury is certainly impending." Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 190, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)
(internal quotation omitted). Although some of the
plaintiffs have not yet lost their health care [*19]
coverage, that fate is inevitable, as illustrated by some of
the co-plaintiffs. As the Sixth Circuit has noted,
"[i]mminence is a function of probability," and the
relevant inquiry is whether a future injury is likely to
occur, not when it will occur. Thomas More Law Center
v. Obama, 651 F.3d 529, 536 (6th Cir. 2011), abrogated
with respect to other principles by National Federation of
Independent Business v. Sebelius, U.S. , 132 S. Ct.
2566, 183 L. Ed. 2d 450 (2012).
In Thomas More Law Center, the Sixth Circuit
considered a challenge to the standing of plaintiffs
seeking to overturn the Affordable Care Act. In that case,
the Court determined that the plaintiffs had alleged an
imminent future injury because they would be required to
purchase health care coverage as of the effective date of
the Act, which was three and a half years after the
complaint was filed. Id. at 538. A similar rationale
applies here. The plaintiffs have alleged that they will
lose health coverage when their partners' contracts expire
or are renegotiated; Public Act 297 states as much. "The
Act itself proves they will [lose health coverage] when
the time comes," ibid., that is, when the
publicly-employed partners' contracts [*20] expire or are
renegotiated. As to the publicly-employed partner
plaintiffs, the complaint alleges that family health
insurance coverage is part of the compensation extended
to public employees, including the publicly-employed
plaintiffs, and that the publicly-employed plaintiffs have
lost or will lose family health insurance coverage for their
domestic partners. Am. Compl. ¶¶ 1, 2, 9. A reduction in
compensation is sufficient to establish an injury for the
purpose of standing. See Williams v. Boeing Co., 517
F.3d 1120, 1127 (9th Cir. 2008) (finding allegations that
discrimination had led to reduced pay for
African-Americans sufficient to establish an injury for
standing purposes); American Federation of Government
Employees, Local 2119 v. Cohen, 171 F.3d 460, 466 (7th
Cir. 1999) (finding that a loss of job benefits, including
lower pay and retirement benefits, was a concrete and
particularized injury for constitutional standing
purposes). The plaintiffs have plausibly alleged that they
are the "objects" of Public Act 297, which prohibits local
governments from offering them domestic partner health
insurance, and that they have suffered a concrete and
particularized injury.
2.
The defendant's [*21] argument that the plaintiffs
cannot show a causal relationship is based on the notion
that they have not pleaded facts suggesting that their
impending loss of benefits is related to Public Act 297.
The defendant points out, for instance, that the plaintiffs
cannot say when they might lose benefits, and that they
could lose benefits because the publicly-employed
partners lose their jobs or the partners separate.
The first argument has no traction. The plaintiffs'
complaint alleges that Public Act 297 prohibits local
governments from providing the domestic partner
benefits that the plaintiffs have obtained, that under the
terms of the Act coverage is terminated when the
contracts or collective bargaining agreements in place
when the Act took effect expire, and that the non-publicly
employed plaintiffs will lose their benefits if the Act
remains effective. Am. Compl. ¶¶ 9, 82. It is difficult to
imagine what other facts the plaintiffs might plead to
demonstrate that the termination of their benefits is
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related to the enforcement of Public Act 297. The
defendant's argument that the plaintiffs have not pleaded
facts demonstrating that Public Act 297 is related to the
termination of their [*22] benefits is perplexing, as it is
admittedly the purpose of the Act to terminate the
benefits that the plaintiffs currently receive. Moreover,
the amended complaint alleges that one plaintiff has lost
benefits; the plaintiffs have presented affidavits from two
other plaintiffs stating that they would lose their benefits
on December 31, 2012, which date has passed.
As for the second argument, although it is certainly
possible that the plaintiff couples could separate or the
publicly-employed plaintiffs could lose their jobs before
losing health insurance benefits, those
anything-can-happen scenarios do not undermine the
alleged causal relationship between the defendant's
conduct and the harm alleged. In Thomas More Law
Center, the Sixth Circuit considered arguments that the
plaintiffs did not have standing to challenge the
Affordable Care Act's mandatory insurance provision,
which does not come into effect until 2014, because the
plaintiffs might die, their incomes might fall, or "a
disaster could befall them" that would make them eligible
for a hardship exception. Thomas More Law Center, 651
F.3d at 537. The Sixth Circuit, noting that the Supreme
Court has allowed plaintiffs to challenge [*23] laws prior
to their effective dates, found that these events were
"hardly probable and not the kind of future developments
that enter into the imminence inquiry." Ibid. Similarly,
here, it is "hardly probable" that the plaintiffs will end
their long-term relationships or lose their jobs before
losing benefits -- especially those plaintiffs who have
already lost benefits. The defendant has presented no
reason to believe that those contingencies are likely to
occur; the invocation of remote possibilities is
insufficient to strip the plaintiffs of standing.
3.
Finally, the defendant argues that, to the extent that
any individual plaintiff has standing, that plaintiff cannot
assert claims on behalf of his or her partner. The
defendant argues that the plaintiffs do not meet the
prudential standing requirement that plaintiffs must assert
their own legal rights and interests, rather than the rights
of third parties. Those general propositions certainly are
true, but the authorities the defendant cites to apply them
to the plaintiffs in this case are readily distinguished.
The defendant mainly relies on Kowalski v. Tesmer,
543 U.S. 125, 125 S. Ct. 564, 160 L. Ed. 2d 519 (2004),
in which the Supreme Court held that attorneys could
[*24] not bring claims on behalf of hypothetical future
clients who might be denied appellate counsel. Id. at 134.
The Court held that the lawyers did not satisfy the first
prudential standing requirement because, unlike the
plaintiffs here, they explicitly sought to enforce the rights
of third parties. In other cases in which this concern has
been implicated, the plaintiffs have either explicitly
sought to assert the rights of third parties or identified
injuries that were not caused by the alleged violation. See
Boland v. Holder, 682 F.3d 531, 536-37 (6th Cir. 2012)
(finding that attorney could not advance a claim based on
the rights of hypothetical future defendants to a fair trial);
Smith v. Jefferson Cnty Bd. of Sch. Comm'rs, 641 F.3d
197, 208-09 (6th Cir. 2011) (en banc) (finding that
teachers could not assert students' rights under the
Establishment Clause, that the plaintiffs' injuries were not
caused by the Establishment Clause violation, but that
plaintiffs had municipal taxpayer standing to challenge
the violation); Alliance for Children, Inc. v. City of
Detroit Public Schools, 475 F. Supp. 2d 655, 662-63
(E.D. Mich. 2007) (finding that a corporation providing
supplemental educational [*25] services could not assert
rights of students). Here, in contrast, the plaintiffs are
asserting their own Fourteenth Amendment rights to
equal protection and due process, and the injuries they
have identified are directly tied to the alleged violation of
these rights by Public Act 297. They are asserting a
violation of their own rights.
The plaintiffs have standing to bring the claims set
forth in the amended complaint.
B.
The defendant also argues that the plaintiffs' claims
are not ripe, reprising his standing argument that the
plaintiffs' claims based on Public Act 297 depend on the
cessation of benefits, and because no concrete injury
occurs before that time, any claimed injury is speculative
or uncertain. The same result obtains. See Thomas More
Law Center, 651 F.3d at 537 (observing that "where the
only Article III question concerns the imminence of the
plaintiffs' injury, standing analysis parallels ripeness
analysis" (citing Duke Power Co. v. Carolina Envtl.
Study Grp., Inc., 438 U.S. 59, 81, 98 S. Ct. 2620, 57 L.
Ed. 2d 595 (1978))). "Indeed if a defendant's 'ripeness
arguments concern only' the 'requirement that the injury
be imminent rather than conjectural or hypothetical' then
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'it follows that our analysis [*26] of [the defendant's]
standing challenge applies equally and interchangeably to
its ripeness challenge.'" Id. at 537-38 (quoting Brooklyn
Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219,
225 (2d Cir. 2006)).
In this case, the plaintiffs whose benefits have not
been terminated already will lose them when the
publicly-employed plaintiffs' contracts expire or are
renegotiated. See Thomas More Law Center, 651 F.3d at
538 (stating that plaintiffs had standing in part because
"the plaintiffs need not do anything to become subject to
the Act"). The defendant's ripeness argument, like his
standing argument, fails. The claims in the amended
complaint are ripe for adjudication.
C.
The defendant believes that the Court should abstain
from exercising jurisdiction over the plaintiffs' claims
under the rule in Burford v. Sun Oil Co., 319 U.S. 315, 63
S. Ct. 1098, 87 L. Ed. 1424 (1943), insisting that a
decision in this case would enmesh the federal court in
difficult questions of state law and disrupt a coherent
state policy. The Court disagrees.
Abstention is "an extraordinary and narrow
exception to the duty of a District Court to adjudicate a
controversy properly before it." Answers in Genesis of
Ky., Inc. v. Creation Ministries Int'l., Ltd., 556 F.3d 459,
467 (6th Cir. 2009) [*27] (quoting Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800,
813, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976)). As the
Supreme Court taught in Burford, abstention may be
appropriate in some cases as a matter of comity,
especially in cases where equitable relief is sought. See
Ada-Cascade Watch Co., Inc. v. Cascade Resource
Recovery, Inc., 720 F.2d 897, 903 (6th Cir. 1983). And
the Court later explained that the purpose of Burford
abstention is to "protect[] complex state administrative
processes from undue federal interference." New Orleans
Public Serv., Inc. [NOPSI] v. Council of City of New
Orleans, 491 U.S. 350, 362, 109 S. Ct. 2506, 105 L. Ed.
2d 298 (1989). But Burford abstention is appropriate only
if (1) timely and adequate state court review is available
and (2) the case involves difficult questions of state law
or federal court resolution disrupts state efforts to
establish a comprehensive policy. Id. at 361. The
"adequate state review" must be centralized in a forum
with special competence in the particular subject matter.
Ada-Cascade Watch, 720 F.2d at 903.
When faced with a request to abstain under Burford,
a district court must "weigh the federal interests in
retaining jurisdiction over the dispute against the state's
interests [*28] in independent action to uniformly
address a matter of state concern, and . . . abstain when
the balance tips in favor of the latter." Webb v. B.C.
Rogers Poultry, Inc., 174 F.3d 697, 700 (5th Cir. 1999).
That balance "only rarely favors abstention." Id. (quoting
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116
S. Ct. 1712, 135 L. Ed. 2d 1 (1996)). Abstention is not
required merely because a "potential for conflict with
state regulatory law or policy" exists; instead, it is
appropriate only where there is "undue federal
interference" with "complex state administrative
processes." NOPSI, 491 U.S. at 362 (internal quotes
omitted).
For several reasons, Burford abstention is manifestly
improper in this case. First, acting on the plaintiffs'
Fourteenth Amendment claims would in no way interfere
with "complex state administrative processes." NOPSI,
491 U.S. at 362. The defendant does not even address this
requirement in his brief and does not identify any state
administrative agency with particular competence over
the subject matter. See Rouse v. DaimlerChrysler Corp.,
300 F.3d 711, 716 (6th Cir. 2002) (finding Buford
abstention inapplicable where there was "no state
administrative agency involved in the dispute"); [*29]
see also Saginaw Housing Comm'n v. Bannum, Inc., 576
F.3d 620, 626-27 (6th Cir. 2009).
Second, the plaintiffs have presented only federal
law questions and do not raise any questions of state law,
let alone any "difficult questions of state law." NOPSI,
491 U.S. at 361 (quoting Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 814,
96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976)). Where plaintiffs
raise federal constitutional claims, Burford abstention is
discouraged. Habich v. City of Dearborn, 331 F.3d 524,
533 (6th Cir. 2003) (stating that "the case against Burford
is even stronger" where the question is "whether a state
action violated constitutional limits").
Third, the defendant has identified no "policy
problems of substantial public import whose importance
transcends the result in the case at bar." NOPSI, 491 U.S.
at 361 (quoting Colorado River Water Conservation
Dist., 424 U.S. at 814). The only policy issue that the
defendant has identified is the desire to save money. But
a desire to save money cannot possibly be sufficiently
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important to require the Court to abstain from deciding
the constitutional issues raised by the plaintiffs. If it were,
states could effectively insulate themselves from [*30]
constitutional review by the federal courts of virtually
any law by citing budgetary concerns. The defendant also
argues that the plaintiffs are seeking to use a decision of
this Court as a "sword . . . to impose limitations on
Michigan's marriage amendment . . . [and] to impact the
broader public by requiring all public employers to
provide domestic partner benefits." Def.'s Am. Mot. to
Dismiss at 9. Accepting that argument requires the Court
to speculate as to the plaintiffs' future litigation strategy,
which serves no useful purpose here. It is enough to
observe that nothing in the present complaint challenges
Michigan's marriage amendment or suggests that all
public employers are required to provide domestic
partner benefits. Although it is true that domestic
relations law generally is a matter of state concern, the
plaintiffs' suit does not seek to overturn any aspect of
Michigan's domestic relations law. See Rouse, 300 F.3d
at 716 (finding that abstention was inappropriate where
plaintiff brought suit to determine whether a domestic
relations order created obligations under ERISA).
Fourth, federal review in this case would not be
significantly "disruptive of state efforts to establish [*31]
a coherent policy with respect to a matter of substantial
public concern." Colorado River, 424 U.S at 814. It is
true that a finding that invalidates Public Act 297 could
result in local governments addressing domestic partner
benefits inconsistently, as they did before Public Act 297
was enacted. However, Burford does not concern itself
with that sort of disruption. See NOPSI, 491 U.S. at
362-63. "[T]here is . . . no doctrine requiring abstention
merely because resolution of a federal question may
result in the overturning of a state policy." Id. at 363
(quoting Zablocki v. Redhail, 434 U.S. 374, 380 n.5, 98 S.
Ct. 673, 54 L. Ed. 2d 618 (1978)). The plaintiffs are
requesting that this Court determine whether Public Act
297 violates the Constitution, an inquiry that does not
"unduly intrude into the processes of state government or
undermine the State's ability to maintain desired
uniformity." Ibid. Abstention from adjudicating these
questions is not appropriate.
III.
The defendant argues, correctly the Court believes,
that the plaintiffs have not pleaded a substantive due
process violation in their amended complaint. The
defendant insists that the plaintiff's due process claim
fails because there is no fundamental [*32] right to
public-employer-provided health insurance for domestic
partners of public employees and the failure to provide
such health insurance does not burden the plaintiffs'
fundamental right to form and sustain intimate family
relationships.
The right to substantive due process prohibits the
government from infringing on "fundamental rights"
without sufficient justification. Washington v.
Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 117 S.
Ct. 2302, 138 L. Ed. 2d 772 (1997). "To state a
cognizable substantive due process claim, the plaintiff
must allege 'conduct intended to injure in some way
unjustifiable by any government interest' and that is
'conscience-shocking' in nature." Mitchell v. McNeil, 487
F.3d 374, 377 (6th Cir. 2007) (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 849, 118 S. Ct. 1708,
140 L. Ed. 2d 1043 (1998)). "What seems to be required
is an intentional infliction of injury . . . or some other
governmental action that is 'arbitrary in the constitutional
sense.'" Stemler v. City of Florence, 126 F.3d 856, 869
(6th Cir. 1997) (quoting Lewellen v. Metro. Gov't of
Nashville & Davidson County, 34 F.3d 345, 351 (6th Cir.
1994)). However, substantive due process protects only
against state action that is not otherwise proscribed by the
plain text of [*33] other constitutional amendments. See
Ciminillo v. Streicher, 434 F.3d 461, 465 (6th Cir. 2006)
(reasoning that "[a]lleged conduct that does not implicate
a constitutional right protected by another amendment
will be analyzed under the substantive due process
component of the Fourteenth Amendment"). Where a
plaintiff has recourse to an "explicit textual source of
constitutional protection," Graham v. Connor, 490 U.S.
386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), a
more general claim of substantive due process is not
available. See Lewis, 523 U.S. at 842.
It is certainly the case that there is no fundamental
right to public-employer-provided health insurance for
the domestic partners of public employees. As the
defendant notes, there is no fundamental right to public
employment; accordingly, there cannot be a fundamental
right to fringe benefits granted as compensation for
public employees. See Board of Regents v. Roth, 408 U.S.
564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). No
substantive due process violation can be predicated on the
denial of such benefits. The defendant also accurately
states that although a property interest in a benefit may
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give rise to a procedural due process claim, the plaintiffs
have not pleaded such a claim in their [*34] complaint.
Ibid.
However, the plaintiffs respond that their substantive
due process claim is not focused on that fundamental
right; instead, they contend that Public Act 297
impermissibly burdens their fundamental right to intimate
association.
"The Constitution protects . . . [the] freedom of
intimate association, a privacy interest derived from the
Due Process Clause of the Fourteenth Amendment but
also related to the First Amendment." Anderson v. City of
LaVergne, 371 F.3d 879, 881 (6th Cir. 2004) (citing
Roberts v. United States Jaycees, 468 U.S. 609, 617-18,
104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)). What qualifies
as protected "intimate association" is very broad, and
certainly covers the plaintiffs' relationships. As the Sixth
Circuit has explained, "the right to 'intimate association'
is not limited to familial relationships but includes
relationships characterized by 'relative smallness, a high
degree of selectivity in decisions to begin and maintain
the affiliation, and seclusion from others in critical
aspects of the relationship.'" Beecham v. Henderson
County, Tennessee, 422 F.3d 372, 375 (6th Cir. 2005)
(quoting Roberts, 468 U.S. at 620). "Intimate
associations" have been found in dating relationships,
Anderson, 371 F.3d at 881-82, [*35] and personal
friendships, Akers v. McGinnis, 352 F.3d 1030, 1039-40
(6th Cir. 2003).
The state must offer heightened justification for laws
interfering with intimate associations. "A 'direct and
substantial interference' with intimate associations is
subject to strict scrutiny, while lesser interferences are
subject to rational basis review." Anderson, 371 F.3d at
882 (quoting Akers, 352 F.3d at 1035).
There can be no doubt that the plaintiffs'
relationships, which are long-term, committed
partnerships, certainly fall into the category of intimate
associations protected by the Due Process Clause.
Beecham, 422 F.3d at 376. The defendant does not
contest that point, recognizing that the plaintiffs have a
"fundamental right to form and sustain intimate family
relationships." Def.'s Mot. to Dismiss at 17. But the
defendant argues that Public Act 297 does not
impermissibly burden that fundamental right. The Court
agrees.
First, Public Act 297 does not present a direct and
substantial interference with the plaintiffs' right to
intimate family relationships because it does not prohibit
the plaintiffs from forming those relationships or
criminalize them. See Lawrence v. Texas, 539 U.S. 558,
578, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) [*36]
(finding that a Texas statute criminalizing consensual
sodomy violated the right to intimate association under
the Due Process Clause). The plaintiffs argue that
governmental action need not require the dissolution of
the plaintiffs' relationship in order to burden their
constitutional rights. They cite Adkins v. Bd. of Educ. of
Magoffin Cnty., 982 F.2d 952, 956 (6th Cir. 1993), in
which the Sixth Circuit held that "it is not necessary that
the governmental act require the abandonment or
dissolution of a marriage relationship as the price for
retaining public employment. The right of association is
violated if the action constitutes an undue intrusion by the
state into the marriage relationship." Ibid. (internal
quotation omitted). They also argue that once a local
government has freely chosen to offer partner benefits to
unmarried employees, the State cannot withhold those
benefits based on the plaintiffs' exercise of their
fundamental right to intimate association and family
integrity. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.
Ct. 2694, 33 L. Ed. 2d 570 (1972). However, Public Act
297 does not interfere with the plaintiffs' ability to form
intimate relationships. They were in committed
relationships before the [*37] public employers extended
the medical benefits, and there is no reason to believe that
the plaintiffs' relationships are likely to dissolve now that
those benefits have been withdrawn. Put simply, although
Public Act 297 may create a financial and psychological
burden on the plaintiffs, it does not place a
constitutionally impermissible burden on their
relationships as such. See Collins v. Brewer, 727 F. Supp.
2d 797, 808 (D. Ariz. 2010).
The plaintiffs' citation to Adkins does not help their
case. That case and the cases following it involved
plaintiffs who were terminated from public employment
because of their marriages. Adkins, 982 F.2d at 954;
Gaspers v. Ohio Dept. of Youth Services, 648 F.3d 400,
413 (6th Cir. 2011); Souwards v. Loudon Cnty., Tenn.,
203 F.3d 426, 432 (6th Cir. 2000). In those cases, the
Sixth Circuit found that the plaintiffs' fundamental right
to marry would be burdened if the plaintiffs' allegations
were proven, because had the plaintiffs not been married,
they would not have lost their jobs. Adkins, 982 F.2d at
956; Gaspers, 648 F.3d at 413-14; Souwards, 203 F.3d at
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433. In contrast, here, the plaintiffs' committed
relationships can hardly be said to have caused [*38]
their loss of benefits -- the plaintiffs would not have been
extended other qualified adult benefits in the first place
had the plaintiffs not been involved in their relationships,
and were the plaintiffs no longer to be in their
relationships, they would not have been permitted to
retain those benefits. The plaintiffs' citation to Perry is
also inapposite for a similar reason: in that case, a
plaintiff was terminated, allegedly in retaliation for
exercising his First Amendment rights. No similar
retaliation is involved here. Perry, 408 U.S. at 597-98.
Second, as the defendant argues, the state does not
have an obligation to affirmatively assist the plaintiffs in
pursuing their liberty interest in intimate association, and
therefore the failure to do so does not constitute
interference with that interest. Ysursa v. Pocatello Educ.
Ass'n, 555 U.S. 353, 358, 129 S. Ct. 1093, 172 L. Ed. 2d
770 (2009) (holding that "a legislature's decision not to
subsidize the exercise of a fundamental right does not
infringe the right" (internal quotation marks omitted)).
Although Ysursa is a First Amendment case, the principle
is not limited to the First Amendment context. See Regan
v. Taxation with Representation of Washington, 461 U.S.
540, 549, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) [*39]
(citing cases involving First Amendment claims and
claims involving failure to subsidize abortions); see also
Collins, 727 F. Supp. 2d at 808. The plaintiffs argue that
Ysursa is inapposite because it is premised in part on the
fact that the state's ban on payroll deductions applied to
all organizations regardless of viewpoint. However, that
argument is better addressed to the plaintiffs' equal
protection claim, discussed below.
The plaintiffs have failed to plead a substantive due
process claim upon which relief can be granted. The
Court will grant the defendant's motion to dismiss that
claim.
IV.
The plaintiffs allege in their amended complaint that
Public Act 297 violates the Equal Protection Clause
because it denies them employment benefits that their
public employers confer on similarly-situated spouses
and blood relatives. The defendant argues that the
plaintiffs have failed to state an equal protection claim for
three reasons. First, the defendant argues that the
plaintiffs are not similarly situated to married couples.
Second, the defendant argues that Public Act 297 is
rationally related to the state's interest in reducing
government costs and therefore that the plaintiffs' claim
[*40] must be dismissed. Third, the defendant argues that
the plaintiffs have failed to establish that Public Act 297
is based on discriminatory animus. Before addressing
these arguments, the Court first must determine the
appropriate standard of review to apply to the plaintiffs'
equal protection claim.
A.
The plaintiffs present two arguments for heightened
scrutiny of Public Act 297 under the Equal Protection
Clause of the Fourteenth Amendment. First, the plaintiffs
argue that gays and lesbians are a suspect or
quasi-suspect class that is entitled to heightened scrutiny.
Second, the plaintiffs argue that Public Act 297
discriminates on the basis of sex and therefore
intermediate scrutiny applies. Based on current Sixth
Circuit law, the plaintiffs swim upstream with these
arguments. The cultural views of same-sex relationships
-- indeed, same-sex marriage -- are evolving rapidly, see
United States v. Windsor, U.S. , 133 S. Ct. 2675, 186
L. Ed. 2d 808, 2013 U.S. LEXIS 4921, 2013 WL 3196928,
at *11 (June 26, 2013) (observing that "New York, in
common with, as of this writing, 11 other States and the
District of Columbia, decided that same-sex couples
should have the right to marry and so live with pride in
themselves and their union and in a [*41] status of
equality with all other married persons"), trending toward
acceptance of the plaintiffs' position. However, current
Sixth Circuit law stands as an obstacle to both of the
grounds the plaintiffs offer as a rationale for examining
the state law against a standard other than its rational
basis. See Davis v. Prison Health Services, 679 F.3d 433,
438 (6th Cir. 2012) (stating that "this court has not
recognized sexual orientation as a suspect classification"
and applying rational basis review); Scarbrough v.
Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir.
2006) (stating that "homosexuality is not a suspect class
in this circuit").
Both sides accept the general proposition that the
Equal Protection Clause of the Fourteenth Amendment
"'prohibits discrimination by government which either
burdens a fundamental right, targets a suspect class, or
intentionally treats one differently than others similarly
situated without any rational basis for the difference.'"
Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974,
986 (6th Cir. 2012) (quoting TriHealth, Inc. v. Bd. of
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Comm'rs, 430 F.3d 783, 788 (6th Cir. 2005)). This
analysis begins with defining an "identifiable group."
Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 601,
128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008) [*42] (stating
that typical plaintiffs "generally allege that they have
been arbitrarily classified as members of an 'identifiable
group'" (quoting Pers. Adm'r of Mass. v. Feeney, 442
U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979))).
"When the identifiable group has been recognized as a
suspect or quasi-suspect class, courts examine the
classification under a heightened level of scrutiny."
Davis, 679 F.3d at 438 (citing Regents of Univ. of
California v. Bakke, 438 U.S. 265, 290-91, 98 S. Ct.
2733, 57 L. Ed. 2d 750 (1978) (opinion of Powell, J.)
(treating race as a suspect classification)); Craig v. Boren,
429 U.S. 190, 197, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976)
(treating gender as a quasi-suspect classification)). But
"[w]hen the identifiable group has not been recognized as
a suspect or quasi-suspect class, courts examine the
classification under rational basis review." Ibid. (citing
Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312,
96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (addressing
discrimination based on age)).
1.
In determining whether a class is suspect or
quasi-suspect, courts examine whether the class
historically has been subjected to discrimination, whether
members of the group "exhibit obvious, immutable, or
distinguishing characteristics that define them as a
discrete group," and whether the group [*43] is "a
minority or politically powerless." Lyng v. Castillo, 477
U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986).
Courts also consider whether the characteristic that
defines the class "bears [any] relation to ability to
perform or contribute to society." City of Cleburne, Texas
v. Cleburne Living Center, 473 U.S. 432, 441, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985) (quoting Frontiero v.
Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 36 L. Ed.
2d 583 (1973) (plurality opinion)).
Gays and lesbians as a group would seem to satisfy
each of these factors. First, gays and lesbians have
suffered, and continue to suffer, widespread
discrimination, not only in the private sector, but also by
all levels of government. The State of Michigan has
constitutionalized discrimination against gays and
lesbians in its marriage amendment. Mich. Const. Art. 1 §
25. In addition, the State of Michigan provides no
protection against harassment or employment
discrimination on the basis of sexual orientation. Barbour
v. Dep't of Soc. Services, 198 Mich. App. 183, 185, 497
N.W.2d 216, 217-18 (1993)). The plaintiffs have
presented evidence that gay men and lesbians face
discrimination in Michigan, that crimes targeting gays
and lesbians constituted 14% of all reported hate crimes
in Michigan in 2010, and that [*44] gays and lesbians
have a 27% chance of experiencing discrimination in
obtaining housing in Michigan. Pls.' Mot. for Prelim. Inj.
Ex. Q at 2-4, Ex. R, Ex. S at 9.
Second, gays and lesbians "exhibit obvious,
immutable, or distinguishing characteristics that define
them as a discrete group." Lyng, 477 U.S. at 638.
Homosexual persons constitute a discrete, socially visible
group defined by the distinguishing characteristic of their
sexual orientation. Kerrigan v. Comm'r of Pub. Health,
289 Conn. 135, 175, 957 A.2d 407, 432 (2008). Further,
the great weight of medical and scientific authority
demonstrates that sexual orientation is an immutable
characteristic. Perry v. Schwarzenegger, 704 F. Supp. 2d
921, 966 (N.D. Cal. 2010) ("No credible evidence
supports a finding that an individual may, through
conscious decision, therapeutic intervention or any other
method, change his or her sexual orientation."); Golinski
v. Office of Personnel Management, 824 F. Supp. 2d 968,
986 (N.D. Cal. 2012) ("[T]he consensus in the scientific
community is that sexual orientation is an immutable
characteristic"). Even if sexual orientation were not
immutable, sexual orientation is an integral part of
personal [*45] identity. Kerrigan, 289 Conn. at 185-86,
957 A.2d at 438.
Third, gays and lesbians constitute a minority that
lacks significant political power. There can be no dispute
that gays and lesbians constitute a minority of the
population in the United States. The fact that gays and
lesbians lack significant political power in Michigan is
amply demonstrated by the fact that there are no laws
prohibiting discrimination on the basis of sexual
orientation and that a voter referendum recently resulted
in the enactment of a constitutional amendment that bars
all recognition of same-sex marriage. On a national level,
gays and lesbians make up only a tiny minority of state
lawmakers; thirty states have passed constitutional
amendments barring same sex marriage; and federal law
-- until June 26, 2013 -- barred the recognition of
same-sex marriage. See Golinski, 824 F. Supp. 2d at 988;
1 U.S.C. § 7; Crary, David, Associated Press, Gay
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Legislators Having Impact in Marriage Debates,
available at www.huffingtonpost.com/2011/03/06/gay-le
gislators-having-im_n_832117.html (last visited June 27,
2013) ("Of America's 7,382 state legislators, only 85 are
openly gay or lesbian.").
Fourth, there can be no doubt [*46] that one's sexual
orientation bears no relationship to one's ability to
perform or contribute to society. Numerous courts have
so found, and the defendant has not attempted to argue
otherwise. See Golinski, 824 F. Supp. 2d at 986;
Kerrigan, 289 Conn. at 181, 957 A.2d at 435; Varnum v.
Brien, 763 N.W.2d 862, 890-92 (Iowa 2009) (collecting
cases).
The Sixth Circuit's pronouncements on the question
are worthy of reexamination. The latest case, Davis v.
Prison Health Services, relies on Scarbrough v. Morgan
County as the authority for the idea that sexual
orientation is not a recognized suspect classification.
Davis, 679 F.3d at 438. Scarbrough, in turn, cited
Equality Foundation of Greater Cincinnati, Inc. v. City of
Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997), for its
holding that "homosexuality is not a suspect class in this
circuit." Scarbrough, 470 F.3d at 261. And the Equality
Foundation court based its holding squarely on Bowers v.
Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d
140 (1986). Equality Foundation, 128 F.3d at 292-93.
Bowers, of course, was overruled by Lawrence v. Texas,
539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).
The tarnished provenance of Davis and the cases upon
which it relies provides ample reasons to revisit [*47] the
question of whether sexual orientation is a suspect
classification under equal protection jurisprudence. At
present, however, that is not the law of the circuit, and it
cannot govern the decision here.
2.
The plaintiffs also argue that intermediate scrutiny
applies because Public Act 297 discriminates on the basis
of the plaintiffs' sex in relation to that of their partners.
The plaintiffs have not cited any case adopting that
rational in the context of a federal equal protection claim.
The cases that the plaintiffs cite are distinguishable. In In
re Levenson, 560 F.3d 1145 (9th Cir. 2009), the court
suggested that denying benefits to a federal employee's
same-sex spouse was a violation of the benefit plan's bar
on sex discrimination because the benefits would not
have been denied had the couple been of opposite sexes.
Id. at 1147. That pronouncement was dictum, however,
because the court ultimately found that because the plan
also prohibited discrimination on the basis of sexual
orientation, it was not necessary to determine whether the
plaintiff had experienced sex or sexual orientation
discrimination in order to find a violation of the benefits
plan. Ibid. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44
(1993), [*48] the Hawaii Supreme Court found that the
state's civil marriage laws, which barred same-sex
marriage, regulated access to marriage on the basis of
sex. Baehr, 74 Haw. at 572, 852 P.2d at 64. That case,
however, was decided on the basis of the Hawaiian
constitution, which the court distinguished from the
United States Constitution. Id. at 562, 852 P.2d at 59-60.
Further, the rationale for considering sex a
quasi-suspect classification does not support extending
heightened scrutiny based on sexual orientation. In
finding that classifications based upon sex are inherently
suspect, the Supreme Court relied on the history and
pervasiveness of discrimination against women and
women's relative lack of political power. Frontiero, 411
U.S. at 684-86. Sex is considered a quasi-suspect
classification, in large part, because "[r]ather than resting
on meaningful considerations, statutes distributing
benefits and burdens between the sexes in different ways
very likely reflect outmoded notions of the relative
capabilities of men and women." City of Cleburne, 473
U.S. at 441. This stereotyping concern does not come into
play when the relevant classification is based on one's sex
compared to the sex [*49] of one's partner.
Sixth Circuit precedents require that the standard
against which Public Act 297 must be measured in the
plaintiffs' equal protection challenge is rational basis
review.
B.
Generally speaking, "[l]aws that do not involve
suspect classifications and do not implicate fundamental
rights or liberty interests . . . will be upheld if they are
'rationally related to a legitimate state interest.'" Moore v.
Detroit Sch. Reform Bd., 293 F.3d 352, 368 (6th Cir.
2002) (quoting Seal v. Morgan, 229 F.3d 567, 575 (6th
Cir. 2000)). "On rational basis review, a classification
bears a strong presumption of validity and a legislative
choice is not subject to courtroom factfinding and may be
based on rational speculation unsupported by evidence or
empirical data." Alexander v. Merit Sys. Prot. Bd. 165
F.3d 474, 484 (6th Cir. 1999) (internal quotation marks
and citation omitted). In the words of the Supreme Court,
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the classification "must be upheld against equal
protection challenge if there is any reasonably
conceivable state of facts that could provide a rational
basis for the classification." FCC v. Beach Commc'ns,
Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d
211 (1993). The State may make classifications, provided
[*50] they are "not unreasonable, arbitrary or capricious."
Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d
651, 659 (6th Cir. 2008) (quoting Gilday v. Bd. of
Elections of Hamilton Cnty., Ohio 472 F.2d 214, 217 (6th
Cir. 1972)). A plaintiff may also show that a government
action lacks a rational basis "by demonstrating that the
challenged government action was motivated by animus
or ill-will." Scarbrough, 470 F.3d at 261 (quoting
Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir.
2005)). In United States v. Windsor, the Supreme Court
held that the Defense of Marriage Act (DOMA) violated
equal protection guarantees found in the Fifth
Amendment. In invalidating the law, the Court held that
"[t]he Constitution's guarantee of equality 'must at the
very least mean that a bare congressional desire to harm a
politically unpopular group cannot' justify disparate
treatment of that group." Windsor, 2013 U.S. LEXIS
4921, 2013 WL 3196928, at *14 (quoting Department of
Agriculture v. Moreno, 413 U.S. 528, 534-35, 93 S. Ct.
2821, 37 L. Ed. 2d 782 (1973)). Similarly, 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 [*51] animus alone violates the Equal
Protection Clause.'" Davis, 679 F.3d at 438 (quoting
Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th
Cir. 1997)).
The defendant offer three reasons why the plaintiffs
have not pleaded a valid equal protection claim.
1.
The defendant's first argument posits that the
plaintiffs have not identified a valid comparitor class
because they are not similarly situated to married
couples, who are eligible for benefits under Public Act
297. In support of this argument, the defendant cites
United States v. Green, 654 F.3d 637, 651 (6th Cir.
2011), but that case is inapposite. As Green makes clear,
the "similarly-situated" requirement applies to
"class-of-one" equal protection claims, in which a
plaintiff does not assert that he or she is a member of a
class. Ibid.; see also Paeth v. Worth Tp., 705 F. Supp. 2d
753, 768 (E.D. Mich. 2010). However, the plaintiffs in
this case are not asserting a class-of-one claim. Instead,
the plaintiffs are asserting a class-based sexual
orientation claim. The Sixth Circuit has held that "[a]
claim alleging discrimination on the basis of sexual
orientation . . . should not be characterized as a
class-of-one claim," but rather [*52] as a "traditional,
class-based discrimination claim." Davis, 679 F.3d at
441-42. Because the plaintiffs' claims must be
characterized as a "traditional, class-based discrimination
claim," the similarly-situated requirement simply does
not apply.
Moreover, Public Act 297 creates a classification
based on sexual orientation. Although the act does not
use the term "sexual orientation," it both explicitly
incorporates statutes that draw classifications based on
sexual orientation and renders access to benefits legally
impossible only for gay and lesbian couples. The Act
incorporates the definitions in the Michigan marriage
amendment and the intestacy statute. Both of those laws
distinguish between opposite-sex couples, who are
permitted to marry and can inherit under intestacy, and
same-sex couples, who cannot. In Johnson v. New York,
49 F.3d 75 (2d Cir. 1995), and Erie Cnty. Retirees Ass'n
v. Cnty. of Erie, Pa., 220 F.3d 193 (3d Cir. 2000), the
Second and Third Circuits found that employment
policies facially discriminated on the basis of age, even
where the policies themselves did not mention age,
because they incorporated other policies with explicit age
restrictions. Johnson, 49 F.3d at 79; [*53] Erie, 220 F.3d
at 211. The same can be said for Public Act 297
concerning sexual orientation.
The defendant's attempt to distinguish those cases by
noting that they dealt with federal antidiscrimination
statutes rather than the Equal Protection Clause is
unpersuasive. He has not presented any argument as to
why the basic reasoning undergirding those decisions
does not apply in the constitutional context. The
defendant also asserts that unlike the policies at issue in
those cases, the marriage amendment and intestacy
statute are not facially discriminatory. That assertion
cannot be reconciled with the text of the marriage
amendment, which specifically defines marriage to
exclude same-sex couples. That provision obviously
distinguishes between opposite-sex couples, who may
marry, and same-sex couples, who may not. And
although it is true, as the defendant argues, that
Michigan's intestacy statutes do not prevent gay and
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lesbian persons from inheriting, they do prevent gay and
lesbian persons from inheriting from their partners, as
only spouses, descendants, and paternal and maternal
relatives are covered by intestacy. See Mich. Comp. Laws
§§ 700.2102, .2103.
Several courts have found that [*54] statutes
restricting benefits on the basis of marriage intentionally
classify on the basis of sexual orientation where gays and
lesbians cannot legally marry. Dragovich v. United States
Dep't of the Treasury, 848 F. Supp. 2d 1091, 1100 (N.D.
Cal. 2012); Collins v. Brewer, 727 F. Supp. 2d 797, 803
(D. Ariz. 2010), aff'd sub nom Diaz v. Brewer, 656 F.3d
1008 (9th Cir. 2011); Alaska Civil Liberties Union v.
State, 122 P.3d 781, 788 (Alaska 2005); Bedford v. N.H.
Cmty. Technical Coll. Sys., Nos. 04-E-229, 04-E-230,
2006 N.H. Super. LEXIS 6, 2006 WL 1217283, at *6
(N.H. Super. Ct. May 3, 2006). The Arizona law
invalidated in Collins is illustrative. Arizona does not
recognize same-sex marriage, but Arizona state law
permitted spouses and domestic partners of state
employees to obtain heath insurance benefits. In 2009,
Arizona passed a law limiting state employee health
insurance benefits to the employee's spouse and children.
The Collins court reasoned that in contrast to unmarried
heterosexual employees, who could marry to take
advantage of state health care benefits, unmarried
homosexual employees effectively were barred
completely from obtaining benefits. Similarly, Public Act
297 makes health benefits available [*55] only "on terms
that are a legal impossibility for gay and lesbian couples."
Collins, 727 F. Supp. 2d at 803.
The defendant responds that because under Michigan
constitutional law, the benefits previously provided to the
plaintiffs were not furnished on the basis of a relationship
similar to marriage, Public Act 297 cannot implicate
same-sex or opposite-sex relationships. That argument
misses the mark. The question is not whether the benefit
schemes of the local governments that employed the
plaintiff turned on the nature of the plaintiff's
relationship. The question is whether, in permitting
benefits to be extended only to married couples while
barring same-sex couples from marrying, Public Act 297
creates a classification on the basis of sexual orientation.
The details of local government benefit schemes prior to
the enactment of Public Act 297 have no relevance to that
question.
The defendant also argues that the plaintiffs' position
would require state and local governments to provide
benefits on the basis of a relationship similar to marriage
in contravention of Michigan's constitution. That, too, is
incorrect. Invalidation of Public Act 297 causes the
statutory landscape simply [*56] to revert to its
pre-Public Act 297 condition. As the defendant himself
recognizes, those benefit schemes did not depend on the
existence of a marriage-like relationship. Therefore, it is
not only possible for local governments to provide
domestic partner benefits in a manner consistent with the
Michigan constitution (and for some local governments
to choose not to do so), it is eminently likely that is
precisely what would occur.
Next, the defendant argues that because domestic
relations is an area of traditional state concern, the Court
should not interfere. But the national government may
enact and interpret laws "that bear on marital rights."
Windsor, 2013 U.S. LEXIS 4921, 2013 WL 3196928, at
*13 (citing Hillman v. Maretta, 569 U.S. , 133 S. Ct.
1943, 186 L. Ed. 2d 43 (2013); Ridgway v. Ridgway, 454
U.S. 46, 102 S. Ct. 49, 70 L. Ed. 2d 39 (1981); and
Wissner v. Wissner, 338 U.S. 655, 70 S. Ct. 398, 94 L.
Ed. 424 (1950)). Moreover, domestic relations laws are
not insulated from federal constitutional scrutiny merely
because they are the traditional province of the states. See
Loving v. Virginia, 388 U.S. 1, 7, 87 S. Ct. 1817, 18 L.
Ed. 2d 1010 (1967) (observing that the State of Virginia
could not argue "that its powers to regulate marriage are
unlimited notwithstanding the commands of the
Fourteenth Amendment"). [*57] And the injunction the
plaintiffs seek affects only Public Act 297, which is not a
part of Michigan's domestic relations law. The defendant
also suggests that federal law, including the Defense of
Marriage Act, has less influence in Michigan because
Michigan does not recognize same-sex marriage. That
argument is ill-founded, as this case does not involve the
Defense of Marriage Act or any other federal statute and
there is no law supporting the suggestion that federal
constitutional requirements apply with less force in states
that do not recognize same-sex marriage.
Finally, the defendant argues that the Court should
reject the plaintiffs' arguments based on the canon of
constitutional avoidance. "If a statute is susceptible of
'two . . . plausible constructions,' one of which 'would
raise a multitude of constitutional problems, the other
should prevail.'" United States v. Erpenbeck, 682 F.3d
472, 475 (6th Cir. 2012) (quoting Clark v. Martinez, 543
U.S. 371, 380-81, 125 S. Ct. 716, 160 L. Ed. 2d 734
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(2005)). However, the defendant has not suggested any
viable interpretation of Public Act 297 that would permit
the Court to avoid a constitutional decision. Moreover, to
the extent that the defendant is suggesting that [*58] the
Court must avoid interpreting or ruling on Public Act 297
to avoid creating a substantial conflict with Michigan's
constitution, the argument is inapposite. No state
constitutional issues have been presented.
The unavoidable conclusion is that Public Act 297
contains a discriminatory classification on the basis of
sexual orientation.
2.
The State may discriminate among non-suspect
classes if has a rational basis to do so. Moore v. Detroit
Sch. Reform Bd., 293 F.3d 352, 368 (6th Cir. 2002)
(stating that "[l]aws that do not involve suspect
classifications and do not implicate fundamental rights or
liberty interests . . . will be upheld if they are 'rationally
related to a legitimate state interest'" (quoting Seal v.
Morgan, 229 F.3d 567, 575 (6th Cir. 2000))). "On
rational basis review, a classification bears a strong
presumption of validity and a legislative choice is not
subject to courtroom factfinding and may be based on
rational speculation unsupported by evidence or empirical
data." Alexander v. Merit Sys. Prot. Bd. 165 F.3d 474,
484 (6th Cir. 1999) (internal quotation marks and citation
omitted). The State need "only [show] that the regulation
bear[s] some rational relation to [*59] a legitimate state
interest." Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir.
2002) (citing Romer v. Evans, 517 U.S. 620, 632, 116 S.
Ct. 1620, 134 L. Ed. 2d 855 (1996)).
The defendant presents two state interests that he
argues Public Act 297 advances. First, the defendant
argues that Public Act 297 promotes the policy goal of
furthering "traditional marriage." But the defendant
himself has written off serious consideration of that
argument, stating that "it strains credulity to believe that a
couple would marry simply to obtain health benefits, or
would acquiesce to participation in a relationship they
might not otherwise choose in order to qualify for the
benefit." Def.'s Am. Mot. to Dismiss at 24. Nor has the
defendant presented any argument how Public Act 297
actually furthers "traditional marriage." Assuming that
the state has a legitimate interest in furthering "traditional
marriage," Public Act 297 is not rationally related to that
policy goal.
The second argument is that Public Act 297 is
rationally related to the State's legitimate interest in
reducing the costs of employee benefits that
municipalities must pay, and therefore no equal
protection violation can be derived from the amended
complaint. However, the [*60] plaintiffs have pleaded
facts that plausibly demonstrate that cannot be true. The
amended complaint alleges that Public Act 297 will result
in only negligible cost savings to the state, which will be
offset by a loss of tax revenue and increased healthcare
costs, including increased use of publicly-funded health
care. Am. Compl. ¶¶ 86, 90, 93, 94. Similar allegations
have been found to be sufficient to survive a motion to
dismiss. Collins, 727 F. Supp. 2d at 805.
The plaintiffs also contend that the cost justification
is a sham, and they have offered evidence that establishes
a likelihood of success on that point. First, the plaintiffs
have presented evidence that the State did not have any
accurate information about the costs savings that would
result from Public Act 297. Similar evidence has been
found sufficient both to survive a motion to dismiss and
to demonstrate a likelihood of success on the merits of a
nearly identical equal protection claim. Collins, 727 F.
Supp. 2d at 811-12. In affirming that decision, the Ninth
Circuit highlighted the fact that the district court was
provided with an expert analysis of the law on the state's
finances but did not have any evidence as to the [*61]
number of same-sex domestic partners participating in
the health plan or as to the costs of such participation.
Diaz, 656 F.3d at 1013.
In this case, there were several legislative analyses
that analyzed the fiscal impact of the bill, but each
discussed the potential cost savings that would result
from no longer providing other eligible adult benefits to
State employees; none analyze the fiscal impact in terms
of local government employees, to which Public Act 297
is directed. Def.'s Mot. to Dismiss Ex. 1A-D. Early
estimates by the Office of the State Employer placed the
potential yearly cost savings (based on coverage of state
employees only) at $8 million, but that figure is suspect.
It later was revised downwards by the Senate Fiscal
Agency to $893,000. Def.'s Mot. to Dismiss Ex. 1A, 1B.
Second, there is evidence that the type of benefits
furnished by local governments will not impact the
amount of funding that the state provides those
governments. In Michigan, state funds are allocated to
local governments on the basis of formulas set by the
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Michigan constitution and by statute. Mich. Const. Art.
IX, sec. 30 (1963); Mich. Comp. Laws §§ 18.1115(5),
18.1349. Local receive funds based [*62] on a formula
that depends heavily on population; school districts
receive funds on a per-pupil basis. Mich. Const. Art. IX,
sec. 10 (1963); Mich. Comp. Laws §§ 141.913, 141.911;
Pl.'s Mot. for Prelim. Inj. Ex. M. Although local
governments are generally unrestricted in the use of state
funds, the state legislature has placed limitations on how
much local entities can pay for employee health insurance
benefits. Mich. Comp. Laws §§ 141.917, 15.561 et seq..
Local governments must either keep their health
insurance benefits payments under a hard cap set by a
formula in the statute or pay 80% or less of the total costs
of the medical benefits they offer; failure to do so results
in a reduction in state funds. Mich. Comp. Laws §§
15.563, .564, .569. However, local governments may
exempt themselves from the Act by a two-thirds vote of
their governing bodies. Mich. Comp. Laws § 15.568. In
responses to interrogatories, the defendant admitted that
the amount of funding Michigan provides to local
government units does not depend on whether the unit
provides benefits to other insured adults or on the number
of individuals to whom the units provide insurance. Pls.'
Mot. for Leave to File [dkt. [*63] #47] Ex. 3.C.
The plaintiff also has offered evidence that in 2010,
the City of Kalamazoo spent approximately 15% of its
budget on benefits for its employees; the estimated cost
of providing insurance for one domestic partner in 2012
was $6,104.76. Pl.'s Mot. for Prelim. Inj. Ex. O at 5, 7;
Pls.' Mot. for Prelim. Inj. Ex. V-1, Collard Aff. at ¶ 13.
Ann Arbor Public Schools spent 9.84% of its 2009
general fund budget on employee health care benefits.
Pls.' Mot. for Prelim. Inj. Ex. N. Approximately 1.2% of
Ann Arbor Public Schools' heath insurance costs in the
2011-2012 plan year, or $204,336, were due to coverage
of other eligible adults. Pls.' Mot. for Prelim. Inj. Ex. V-2,
Comsa Aff. at ¶ 11. In Ingham county, the total projected
cost for providing other eligible adult benefits in 2012 is
$16,157, or .002% of total expenditures on health care.
Pls.' Mot. for Leave to File [dkt. #47] Ex. 1, Lannoye Aff.
at ¶ 13. Officials from the City of Kalamazoo, the Ann
Arbor Public Schools, Ingham County, and Kalamazoo
Valley Community College have stated that any cost
savings resulting from Public Act 297 would remain with
their local government unit. Pls.' Mot. for Prelim. Inj. Ex.
V-1, Collard [*64] Aff. at ¶ 26, Ex. V-2, Comsa Aff. at ¶
23, Pls.' Mot. for Leave [dkt. #47] Ex. 1, Lannoye Aff. at
¶ 28, Ex. 2.A, Schlack Dep. at 36.
Third, the plaintiffs have offered evidence that cost
savings to local governments will be de minimus, and that
the failure to provide such benefits actually may impose
additional costs on local governments. For instance, of
the 194 employees of the City of Kalamazoo eligible, six
added an OQA to their plan. Pl.s' Mot. for Prelim. Inj. Ex.
V-1, Collard Aff. at ¶ 6. Of approximately 1,800 full-time
Ann Arbor Public Schools employees, thirty-three
employees enrolled OQAs. Pl.'s Mot. for Prelim. Inj.
Ex.V-2, Cosma Aff. at ¶¶ 2, 5. Of the 832 Ingham
County employees eligible to participate, three had
enrolled OQAs as on January 1, 2012. Pl.'s Mot. for
Leave [dkt. #47] Ex. 1, Lannoye Aff. at ¶ 7. Only one
individual signed up for household member benefits at
Kalamazoo Valley Community College. Pl.'s Mot. for
Leave [dkt. #47] Ex. 2.A, Schlack Dep. at 41.
The plaintiffs have presented an affidavit from an
economist, Dr. M.V. Lee Badgett at the University of
Massachusetts, predicting the economic and fiscal effects
of Public Act 297. He states that between .3% [*65] and
1.5% of employees eligible to enroll an OQA actually did
so and that the resulting increase in health care costs
ranged from .3% to .7%. Pl.'s Mot. for Prelim. Inj. Ex. U,
Badgett Aff. ¶ 15. He also states that the administrative
costs associated with providing other qualifying adult
benefits are small, one-time costs. Id. ¶¶ 10-12. The
increases in health care costs are small and proportionate.
Id. ¶¶ 15-16. Dr. Badgett predicts that any state savings
resulting from Public Act 297 will be small, and observes
that some of those benefits are paid out of local funds. Id.
¶¶ 17-23. He also averred that the State will lose revenue
from offsetting income tax payments, not all qualified
adults will be prevented from receiving benefits under the
act, and eliminating insurance coverage for other
qualified adults could lead to additional costs to Medicaid
and other government-sponsored health programs and to
an increase in uncompensated care. Id. ¶¶ 17-22. Finally,
Dr. Badgett posits that Public Act 297 could increase
employment costs to local governments by preventing
them from competing effectively with other employers
for the best-qualified employees. Id. ¶ 24.
The defendant argues that [*66] the plaintiffs'
evidence does not demonstrate a likelihood of success on
the merits, because to determine that the economic
benefits of the Act are too minimal to demonstrate that its
classifications are rationally related to a legitimate state
interest would be to engage in judicial line-drawing that
oversteps highly deferential rational basis review. The
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2013 U.S. Dist. LEXIS 93345, *61
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Court disagrees. Aside from saying so, the defendant has
offered little to support its cost-savings rationale. The
weakness of the defendant's proffered explanations
indicates that Public Act 297 was nothing more than an
attempt to bar same-sex couples from receiving partner
benefits from public employers. The defendant's
justifications "come close to striking [the Court] with 'the
force of a five-week-old, unrefrigerated dead fish.'"
Craigmiles, 312 F.3d at 225 (quoting United States v.
Searan, 259 F.3d 434, 447 (6th Cir.2001)). That evidence
does not satisfy rational basis review. Ibid.
Moreover, although "a state has a valid interest in
preserving the fiscal integrity of its programs" and "may
legitimately attempt to limit its expenditures . . . a state
may not accomplish such a purpose by invidious
distinctions between classes [*67] of its citizens."
Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322,
22 L. Ed. 2d 600 (1969), overruled in part on other
grounds by Edelman v. Jordan, 415 U.S. 651, 94 S. Ct.
1347, 39 L. Ed. 2d 662 (1974). "[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). The
Supreme Court has held that although "a State has a valid
interest in preserving the fiscal integrity of its programs,"
the State may not attempt to "limit its expenditures . . . by
invidious distinctions between classes of its citizens."
Graham v. Richardson , 403 U.S. 365, 374, 91 S. Ct.
1848, 29 L. Ed. 2d 534 (1971) (quoting Shapiro, 394 U.S.
at 633). Legislation curtailing benefits that is aimed at an
unpopular group calls for closer examination. U.S. Dept.
of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S. Ct.
2821, 37 L. Ed. 2d 782 (1973) (stating that "a bare . . .
desire to harm a politically unpopular group" is not a
legitimate state interest). And although the Sixth Circuit
has not addressed the issue, the First and Ninth Circuits
have held that cost savings alone are insufficient to
justify an otherwise discriminatory statute. Massachusetts
v. United States Dep't of Health and Human Servs., 682
F.3d 1, 11, 14 (1st Cir. 2012); [*68] Diaz, 656 F.3d at
1013-14. The plaintiffs have shown that the defendant's
justifications for the discrimination wrought by Public
Act 297 are so insubstantial that animus against same-sex
couples remains as the only genuine justification.
3.
A plaintiff may also show that a government action
lacks a rational basis "by demonstrating that the
challenged government action was motivated by animus
or ill-will." Scarbrough, 470 F.3d at 261. 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, 873-74 (6th Cir. 1997)). The
defendant argues that the plaintiffs have failed to
establish that Public Act 297 is based on discriminatory
animus. The record suggests otherwise.
The historical background and legislative history of
the Act demonstrate that it was motivated by animus
against gay men and lesbians. The history of debate over
domestic partner benefits illustrates the tension between
some local governments' desire to provide benefits to
[*69] same-sex couples in a manner consistent with the
Michigan constitution and a desire by opponents of
same-sex benefits to block them. Local governments
began to offer the other-eligible-adult benefit in their
present form -- that is, open to partners who are of either
the same or opposite sex -- after the Michigan Supreme
Court held that conditioning benefits on the sex of the
employee's partner violated the Michigan constitution.
See National Pride at Work, Inc. v. Granholm, 481 Mich.
56, 71-75, 748 N.W.2d 524, 535-37 (2008). It is therefore
apparent that eligible adult benefits represent local
governments' attempt to provide health insurance benefits
to same-sex couples on a basis that is consistent with the
Michigan constitution. Public Act 297 seeks to block
further attempts by local governments to provide benefits
to same-sex couples in a manner consistent with the
Michigan constitution by setting up requirements that
same-sex couples cannot meet. That history demonstrates
a concerted attempt to block same-sex partners from
accessing benefits that is consistent with a desire to
effectuate animus against gay men and lesbians.
The plaintiffs fortify their position with statements
from [*70] the sponsors of the legislation suggesting that
Public Act 297 targets same-sex partners and was
motivated by animus. Representative Peter Lund, a
sponsor of Public Act 297, stated in reaction to the
Michigan Civil Service Commission's decision to offer
other eligible adult benefits that "[i]t is an absolute
abomination to hear a state agency has the gall to make
such a costly and polarizing political move while people
and their government are pinching pennies just to make
Page 18
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ends meet . . . this [is a] clearly political move that shifts
people's hard earned dollars into the pockets of same-sex
partners." Pls.' Mot. for Prelim. Inj. Ex. G-2. The lead
sponsor of the act, Representative David Agema, stated
that "[t]he people of this state, the Attorney General and
the Michigan Supreme Court have all decided in recent
years that marriage is between one man and one woman
and to extend health benefits to unions that do not fall
into that category is disrespectful to the people. For a
state organization such as the CSC to blithely ignore
these mandates is reprehensible." Pls.' Mot. for Prelim.
Inj. Ex. G-1. After the Michigan legislature attempted,
and failed, to overturn the commission's decision [*71]
in March and April 2011, further press releases were
issued by Republican lawmakers. See Pls.' Mot. for
Prelim. Inj. Ex. G-4, Press Release by Representative
Ken Yonker ("This is a strike in the face to the people of
Michigan. . . . To disregard what the people have decided
at the ballot box, and to disregard the boundaries of
marriage makes a mockery of the moral fabric that has
made America what it is today. . . . This was the worst
thing to happen since we've been here and it's
disgusting."); Ex. G-5, Press Release by Representative
Tom Hooker ("I think Michigan residents have made it
pretty clear time and again what they want with regard to
benefits for unmarried and same sex partners . . . For the
Democrats to uphold the CSC decision today goes
exactly contrary to what the people in this state have
voted for, and even what our state Supreme Court has
said on the issue and I'm shocked.").
Citing Isle Royale Boaters Assoc. v. Norton, 330
F.3d 777, 784 (6th Cir. 2003), the defendant argues that
statements by Michigan's legislators are not a reliable
indication of their true motivation. However true that
caution might be, the defendant's argument on this point
is not quite correct. [*72] In Isle Royale, the Sixth
Circuit observed that it is "wary of relying on individual
legislator's statements" to divine legislative intent and
declined to rely on them in that case. Isle Royale Boaters
Assoc. 330 F.3d at 784-85. This is not precisely the same
thing as stating that statements of legislators are
insufficient as a matter of law to support a finding of
discriminatory animus. The former is a question of
statutory construction; the second is a question of
legislative purpose.
Instead, the Court takes guidance from the Supreme
Court's decision invalidating DOMA, which determined
legislative purpose by looking to the "history of . . .
enactment" and the statute's "own text." Windsor, 2013
U.S. LEXIS 4921, 2013 WL 3196928, at *15 ("The
history of DOMA's enactment and its own text
demonstrate that interference with the equal dignity of
same-sex marriages, a dignity conferred by the States in
the exercise of their sovereign power, was more than an
incidental effect of the federal statute. It was its
essence."). Looking to the history and text of Public Act
297, it is hard to argue with a straight face that the
primary purpose -- indeed, perhaps the sole purpose -- of
the statute is other than to deny [*73] health benefits to
the same-sex partners of public employees. But that "can
never be a legitimate governmental purpose." Davis, 679
F.3d at 438 (quoting Stemler, 126 F.3d at 873-74).
The plaintiffs have stated a viable and likely
successful equal protection claim. They have provided
strong evidence that the discriminatory classification
established by Public Act 297 is not rationally related to a
legitimate governmental purpose.
V.
When deciding a motion for preliminary injunction
under Federal Rule of Civil Procedure 65, the Court must
consider four factors: (1) the likelihood of the party's
success on the merits of the claim; (2) whether the
injunction will save the party from irreparable injury; (3)
the probability that granting the injunction will
substantially harm others; and (4) whether the public
interest will be served by the injunction. Summit County
Democratic Central and Executive Committee v.
Blackwell, 388 F.3d 547, 550 (6th Cir. 2004). "[T]he four
factors are not prerequisites to be met, but rather must be
balanced as part of a decision to grant or deny injunctive
relief." Performance Unlimited v. Questar Publishers,
Inc., 52 F.3d 1373, 1381 (6th Cir. 1995). The Court need
[*74] not make specific findings regarding each of the
four factors if fewer factors are dispositive of the issue.
See Six Clinics Holding Corp., II v. Cafcomp Sys., Inc.,
119 F.3d 393, 399 (6th Cir. 1997). "Although no one
factor is controlling, a finding that there is simply no
likelihood of success on the merits is usually fatal."
Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625
(6th Cir. 2000). The plaintiff has the burden of proof, and
that burden is the same irrespective of whether the relief
sought is mandatory or prohibitive. United Food &
Commercial Workers Union, Local 1099 v. Southwest
Ohio Regional Transit Auth., 163 F.3d 341, 348 (6th Cir.
1998).
Page 19
2013 U.S. Dist. LEXIS 93345, *70
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A.
For the reasons stated above, the Court finds that the
plaintiffs have demonstrated a likelihood of success on
the merits of their equal protection claim.
B.
The second factor also favors the plaintiffs. The
plaintiffs probably will be able to prove that Public Act
297 denies them the equal protection of the laws.
"[W]hen reviewing a motion for a preliminary injunction,
if it is found that a constitutional right is being threatened
or impaired, a finding of irreparable injury is mandated."
Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001)
[*75] (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct.
2673, 49 L. Ed. 2d 547 (1976)).
Moreover, the potential risk to the plaintiffs' health
resulting from the loss of medical insurance qualifies as
irreparable harm. Although a plaintiff's harm is not
irreparable if it is fully compensable by money damages,
Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.
1992), the plaintiffs have presented facts suggesting that
plaintiffs Ramber and Ascheri have chronic conditions
that could lead to serious complications if left untreated
and that these plaintiffs are unable to afford insurance
coverage that would permit them to continue treatment.
Plaintiff Ramber has serious problems with her left eye
that require daily medication and has been diagnosed
with rheumatoid arthritis and gastroesophageal reflux
disease, which requires medication and may require a
series of endoscopy procedures; alternative health
coverage would be difficult to obtain and purchasing
coverage from her employer would cost more than half of
Ramber's monthly take-home pay. Pls.' Mot. for Prelim.
Inj. Ex. T-5, Jach Dec. ¶¶ 9, 11; Ex. T-6, Ramber Dec. ¶¶
7, 9; Amend. Ex. [Dkt. #70]. Plaintiffs Ascheri and
Johnson also have conditions that require regular [*76]
medication or monitoring, and plaintiff Johnson has
stated that she and her partner cannot afford replacement
insurance. Pls.' Mot. for Prelim. Inj. Ex. T-7, Bloss Dec. ¶
8; Ex. T-8, Ascheri Dec. ¶ 7; Ex. T-9, Miller Dec. ¶¶
8-10; Ex. T-10, Johnson Dec. ¶¶ 7-9. The potential
medical consequences and the financial uncertainty
caused by Public Act 297 are sufficient to demonstrate
irreparable harm. Schalk v. Teledyne, Inc., 751 F. Supp.
1261, 1268 (W.D. Mich. 1990). This factor favors
granting the preliminary injunction.
C.
The balance of equities clearly favors the plaintiffs.
Because "there is a likelihood that [the statute] will be
found unconstitutional . . ., [it is] questionable whether
[the state] has any 'valid' interest in enforcing" it. Planned
Parenthood Assoc. of Cincinnati, Inc. v. City of
Cincinatti, 822 F.2d 1390, 1400 (6th Cir. 1982).
Meanwhile, Public Act 297 places significant financial,
emotional, and medical burdens on the plaintiffs that
outweigh any slight increase in cost to the State. Schalk,
751 F. Supp. at 1268 ("I am unconvinced that this harm
[increased monthly costs] outweighs that of a retiree
forced to go without medical care, or forced to choose
between [*77] the basic necessities of life in order to pay
his or her medical deductibles and co-pays or life
insurance.").
D.
The public interest also favors granting an
injunction. The public has an interest in ensuring that
only constitutional laws are enforced. Planned
Parenthood, 822 F.2d at 1400. In addition, the public has
an interest "in the preservation of a healthy population."
Schalk, 751 F. Supp. at 1268. That interest is furthered
when public employers are permitted to extend health
insurance benefits and harmed when individuals are
abruptly terminated from health insurance coverage. As
the plaintiffs observe, the public interest is also served by
giving local authorities the autonomy to structure their
benefit plans to attract and retain the most qualified
possible workforce.
VI.
There remains a question as to the scope of the
remedy at this stage of the proceedings. The defendant
has raised two concerns over breadth of an injunction, the
first of which need not detain the Court. The defendant
appears to be concerned that the Court might issue an
injunction ordering local governments to provide benefits
to other eligible adults. But the Court does not read either
the plaintiffs' amended [*78] complaint or their motion
for a preliminary injunction to request such relief.
Instead, the plaintiffs seek a declaration that the Act
violates the Fourteenth Amendment and preliminary and
permanent injunctions enjoining the defendant from
enforcing the Act. The defendant appears to be laboring
under a misapprehension as to the relief requested by the
plaintiffs; the plaintiffs do not seek to require local
governments to provide benefits, instead, they seek to
enjoin the state from prohibiting public employers from
Page 20
2013 U.S. Dist. LEXIS 93345, *74
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offering benefits. The significant difference between
these two propositions seems to have escaped the
defendant, which in turn renders the defendant's
argument slightly confused. Indeed, the parties appear to
agree on the main point: if the Court finds that the statute
is facially unconstitutional, the Court may issue a
judgment so stating and enter a permanent injunction
barring the defendant from enforcing the statute.
The second question is whether preliminary
injunctive relief should be confined to the plaintiffs in
this case. The defendant argues that a preliminary
injunction should benefit only the named plaintiffs
because enjoining enforcement of the statute itself [*79]
would effectively grant the relief sought in the complaint
and would involve enjoining third parties.
The defendant relies mainly on Sharpe v. Cureton,
319 F.3d 259 (6th Cir. 2003). In that case, the named
plaintiffs were firefighters who proved at trial that the
mayor of Knoxville unlawfully discriminated against
them for supporting an opponent in a political election.
The trial court permanently enjoined the mayor not only
from discriminating against the plaintiffs, but also against
any city employee. The court of appeals held that the
scope of the injunction was too broad and "unnecessary
to provide the named plaintiffs the relief to which they
[were] entitled as prevailing parties." Id. at 273. The
court explained that "[w]hile district courts are not
categorically prohibited from granting injunctive relief
benefitting an entire class in an individual suit, such
broad relief is rarely justified because injunctive relief
should be no more burdensome to the defendant than
necessary to provide complete relief to the plaintiffs."
Ibid. (emphasis in original); see also Warshak v. United
States, 532 F.3d 521, 531 (6th Cir. 2008) (citing Sharpe
for this principle).
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994),
[*80] suggests that the test for determining whether to
apply class-wide relief in a case involving individual
plaintiffs is the same regardless of whether the injunction
is preliminary or permanent. That case involved the
federal Bureau of Prisons' use of the proceeds of the
Commissary Fund, a trust of which federal inmates are
the sole beneficiaries, to install and operate a direct dial
system in place of a collect call system. The plaintiffs
were individual federal prison inmates. The district court
issued a preliminary injunction enjoining, among other
things, the use of proceeds from the Commissary Fund to
pay for the implementation of a direct dial system. The
injunction was nationwide in scope rather than limited to
the individual plaintiffs. The Sixth Circuit acknowledged
that "'injunctive relief should be no more burdensome to
the defendant than necessary to provide complete relief to
the plaintiffs.'" Id. at 1103 (citing Califano v. Yamasaki,
442 U.S. 682, 702 (1979)), 99 S. Ct. 2545, 61 L. Ed. 2d
176. Nevertheless, the court upheld a nationwide
injunction because it found that "the appropriate relief to
be granted to the plaintiffs on their Commissary Fund
claim necessarily implicate[d] nationwide relief." Id. at
1104. [*81] The court reasoned that "[t]he named
plaintiffs' gains in obtaining an injunction prohibiting
further invasions of the trust for the primary purpose of
installing security equipment would be illusory indeed if
the defendants were banned from funding security
measures through the Commissary Fund at the Lexington
facility only, but could finance those same measures at
other institutions through invasions of Fund accounts."
Ibid.
The Court believes that it is necessary to enjoin the
wholesale enforcement of the Act in order to provide
complete relief to the plaintiffs. The nature of the relief
sought does not impact any conduct by the defendant
directed specifically toward the plaintiffs. Rather, the
plaintiffs seek to prevent the defendant from interfering
with their employers' voluntary action. Public Act 297
itself bars public employers from paying partner benefits;
it is not enforced against the individual plaintiffs. An
injunction, therefore, will necessarily bar the defendant
from enforcing the Act against public employers, rather
than against the individual plaintiffs. These
circumstances parallel those in Bresgal v. Brock, 843
F.2d 1163 (9th Cir. 1987), where the district court [*82]
imposed an injunction directing the Secretary of Labor to
integrate forestry workers into its enforcement of the
Migrant and Seasonal Agricultural Workers Protection
Act. That Act required registration of labor contractors
with the Department of Labor and disclosure of
employment conditions to workers; it also imposed health
and safety standards. Bresgal, 843 F.2d at 1165, 1169.
The Secretary appealed, arguing that the injunction was
overbroad, would affect more than the named plaintiffs,
and would "require the national adoption of the court's
interpretation of the Act." Id. at 1169. The court observed
that "[c]lass-wide relief may be appropriate even in an
individual action." Id. at 1171 (citations omitted). It was
appropriate in that case, the court held, because "it is
labor contractors," not the individual plaintiffs, "who are
Page 21
2013 U.S. Dist. LEXIS 93345, *78
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most directly affected by the injunction against the
Secretary." Ibid. Because the plaintiffs' harm was the
result of the statute's effect on third-party conduct, it was
impractical to attempt to isolate only those contractors
who dealt with the plaintiffs and limit the injunction's
application. The court held that the district court properly
ordered what [*83] turned out to be nationwide relief.
Ibid.
The plaintiffs here are similarly situated to the
plaintiffs in Bresgal. To provide effective relief, the
injunction must prohibit the defendant from enforcing
Public Act 297, which applies to public employers. An
injunction applicable only to the named plaintiffs would
be impractical and difficult to enforce. The injunction
will not mandate any public employer to do anything; it
simply returns the employer-employee relationship to its
status before Public Act 297 was enacted.
VII.
The Court concludes that the plaintiffs have standing
to bring their challenge to the state statute, their claims
are ripe, and abstention is not appropriate. The Court also
finds that the plaintiffs have not stated a claim for which
relief can be granted based on the deprivation of their
right to substantive due process. However, they have
stated a viable claim based on the Equal Protection
Clause on which they are likely to succeed. Other factors
favor issuance of a preliminary injunction.
Accordingly, it is ORDERED that the defendant's
motion to dismiss and amended motion to dismiss [dkt. #
15, 18] are GRANTED IN PART AND DENIED IN
PART.
It is further ORDERED that [*84] the Second
Claim for Relief in the amended complaint is
DISMISSED WITH PREJUDICE.
It is further ORDERED that the plaintiffs' motion
for preliminary injunction [dkt #18] is GRANTED.
It is further ORDERED that the defendant, his
officers, agents, servants, employees, and attorneys, and
all those in active concert and participation with him who
receive actual notice of this order are RESTRAINED
AND ENJOINED from enforcing Michigan Public Act
297 (2011) during the pendency of this action or until
further order of the Court. The Court finds that no
security is required because no costs or damages that
could result from the defendant being wrongfully
enjoined have been shown.
/s/ David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: June 28, 2013
Page 22
2013 U.S. Dist. LEXIS 93345, *82
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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

ELECTRONICALLY FILED

GREGORY BOURKE, ET AL. )
)
PLAINTIFFS )
) CIVIL ACTION NO.
v. )
) 3:13-CV-750-JGH
STEVE BESHEAR, ET AL. )
)
DEFENDANTS )


ORDER

****************

Motions having been made, and this Court being otherwise sufficient advised,

The Court finds that Plaintiffs have and will suffer immediate and reparable harm
caused by Kentucky Constitution, Section 233A; Ky. Rev. Stat. § 402.040(2); Ky. Rev. Stat.
§ 402.045; and 28 U.S.C. 1738C § 2 (2000).
Wherefore, IT IS HEREBY ORDERED that the Plaintiffs’ Motion for Summary
Judgment and Immediate and Permanent Injunctive Relief is GRANTED.


Case 3:13-cv-00750-JGH Document 38-10 Filed 12/16/13 Page 1 of 1 PageID #: 486

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