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LAWRENCE G. WASDEN ATTORNEY GENERAL STEVEN L. OLSEN Chief of Civil Litigation Division W. SCOTT ZANZIG, ISB # 9361 CLAY R. SMITH, ISB # 6385 Deputy Attorneys General Civil Litigation Division Office of the Attorney General 954 W. Jefferson Street, 2nd Floor P. O. Box 83720 Boise, ID 83720-0010 Telephone: (208) 334-2400 Fax: (208) 854-8073 scott.zanzig@ag.idaho.gov clay.smith@ag.idaho.gov Attorneys for Defendant Rich and Defendant-Intervenor

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

SUSAN LATTA et al., Plaintiffs, vs. C.L. BUTCH OTTER, as Governor of the State of Idaho, in hisofficial capacity, and CHRISTOPHER RICH, as Recorder of Ada County, Idaho, in his official capacity, Defendants, and STATE OF IDAHO, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:13-cv-00482-CWD

DEFENDANT RICH AND DEFENDANT-INTERVENOR IDAHOS COMBINED RESPONSE TO MOTION FOR SUMMARY JUDGMENT (DKT. 45) AND REPLY IN SUPPORT OF MOTIONS TO DISMISS

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I. INTRODUCTION Defendant Christopher Rich and Defendant-Intervenor State of Idaho

(collectively, Idaho or State) submit this memorandum in opposition to plaintiffs motion for summary judgment (Dkt. 45), and in reply in support of their motions to dismiss (Dkt. 30 and 41). II. ARGUMENT A. BAKER v. NELSON REQUIRES DISMISSAL OF PLAINTIFFS CLAIMS Baker v. Nelson, 409 U.S. 810 (1972), is the only case in which the Supreme Court has addressed the question whether the United States Constitution requires a state to provide civil marriage benefits to same-sex couples. Baker establishes that neither

substantive due process nor equal protection principles require a state to do so. Thus, the only Supreme Court authority directly on point requires dismissal of plaintiffs claims. Plaintiffs ask this Court to reject Baker. The Court should decline plaintiffs invitation to implicitly overrule Supreme Court precedent. As the Supreme Court has instructed: We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that [i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (quoting Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). Even a summary disposition such as Baker remains controlling precedent unless and until re-examined by [the Supreme] Court. Tully v. Griffin, 429 U.S. 68, 74 (1976).
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Plaintiffs suggestion that United States v. Windsor, 133 S. Ct. 2675 (2013), somehow overruled Baker lacks merit. The Windsor opinion does not mention Baker and specifically limits its holding to a federal statute that impermissibly interfered with state marriage laws. Id. at 2696; see also id. at 2696-97 (Roberts, C.J., dissenting). Windsor instead reiterated the States primacy in determining the contours of civil marriage and rebuffed Congress attempt to interfere with that primacy. As such, nothing in its holding or attendant analysis undermines Bakerwhich leaves state authority to restrict marriage to opposite-sex couples unembarrassed by the Due Process or Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs also contend that Baker is distinguishable. This argument too lacks merit. Baker rejected the very same arguments that plaintiffs assert here, i.e., that the Due Process and Equal Protection Clauses require a state to redefine its marriage laws to include same-sex partners. The Court should reject plaintiffs suggestion that Idahos marriage laws are different from Minnesotas and were established for the purpose of intentionally discriminating against same-sex couples. Indeed, Idahos marriage statutes, including Idaho Code 32-202 (which plaintiffs do not challenge), have defined marriage as a contract between a man and a woman since the first Territorial Code. 1864 Idaho Terr. Sess. L. 613 (any unmarried male 18 years of age or older and any unmarried woman 16 years of age or older capable of consenting to and consummating marriage); 1889 Idaho Terr. Sess. L. 40 (age of consent for women increased to 18 years or older); 1901 Civ. Code Ann. 1990 (same); see also Idaho Atty Gen. Op. No. 93-11, 1993 WL 482224, at *10 (Nov. 3, 1993) (citing 32-202 for the principle that [t]he State of Idaho does not legally recognize either homosexual marriages or homosexual domestic partnerships. By statute, marriage is limited in Idaho to the union between a man and a woman).

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There is, as well, no credible evidence that this longstanding definition was the product of intentional discrimination or animus against same-sex couples. It instead reflected millennia of human experience that tethered the overriding purpose of marriage to procreation and the resulting family unit. Plainly enough, plaintiffs believe that

experience has no role in this cases outcome. Baker no less plainly holds the contrary. Plaintiffs have every right to advance their belief in this regard, but the only forum that, consistent with Baker, can resolve the issue is the Supreme Court. Any doubt about Bakers binding effect must be resolved against plaintiffs.
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Earlier this year, the Supreme Court sent another signal indicating that Baker remains good law. The Court granted the application filed by Utahs governor and attorney general to stay enforcement of a district courts injunction determining that Utahs marriage laws are unconstitutional. Herbert v. Kitchen, 134 S. Ct. 893 (2014) (mem.). The stay request had been denied by the district court (Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6834634 (D. Utah Dec. 23, 2013)) and by the Tenth Circuit Court of Appeals (Kitchen v. Herbert, No. 13-4178 (10th Cir. Dec. 24, 2013)). The grant of a stay by the Supreme Court after denial by the lower courts strongly indicates that eventual certiorari review is likely. E.g., Packwood v. Select Comm. on Ethics, 510 U.S. 1319 (1994) (Rehnquist, C.J., in chambers) (The criteria for deciding whether to grant a stay are well established. An applicant must demonstrate: (1) a reasonable probability that four Justices would vote to grant certiorari; (2) a significant possibility that the Court would reverse the judgment below; and (3) a likelihood of irreparable harm, assuming the correctness of the applicant's position, if the judgment is not stayed. . . . Because this matter is pending before the Court of Appeals, and because the Court of Appeals denied his motion for a stay, applicant has an especially heavy burden.) (citation omitted). The Supreme Courts extraordinary determination to issue a staywhich several district courts subsequently invalidating or preliminarily enjoining opposite-sex only marriage laws have entered sua sponteindicates that the Court recognizes the need for it to resolve the issues in this and related litigation and to maintain the status quo until it speaks. The Courts action renders largely academic the exercise many district courts are currently engaging in, since they cannot afford effective relief and since it appears probable that the Tenth Circuit appeals in the Utah and Oklahoma litigation (Nos. 13-4178, 14-5003 & 14-5006) will be the first appellate proceeding concerning the issues here to be decided and thereafter brought before the Supreme Court on certiorari. More importantly for substantive purposes, the stay also counsels against lower courts concluding that the judgment in Baker has been superseded by subsequent precedent. The Baker judgments continuing validity is instead a question that must be answered by the Supreme Court, not this Court.
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B.

IDAHOS MARRIAGE LAWS SATISFY THE RATIONAL BASIS STANDARD OF REVIEW 1. The Rational Basis Standard of Review Applies to Plaintiffs Claims

Even if Baker were not dispositive, the rational basis standard would apply to plaintiffs substantive due process and equal protection challenges to Idahos marriage laws. Under the doctrine of substantive due process, state laws that do not implicate a fundamental right are subject to rational basis review. Washington v. Glucksberg, 521 U.S. 702, 722 (1997). Similarly, the rational basis test applies to equal protection

challenges unless the challenged law burdens a fundamental right or targets a suspect class. Romer v. Evans, 517 U.S. 620, 630 (1996). Idahos marriage laws neither deny plaintiffs a fundamental right nor target a suspect class. a. There is no fundamental right to same-sex civil marriage

Neither the Supreme Court nor the Ninth Circuit has ever held that same-sex couples have a constitutionally protected fundamental right to state civil marriage. Indeed, to declare same-sex marriage a fundamental right would require a court to overrule or ignore well-established Supreme Court authority requiring that the right at issue be objectively, deeply rooted in this Nations history and tradition. Glucksberg, 521 U.S. at 720-21 (internal quotation omitted). Plaintiffs contend that they do not seek to establish a new right, but rather seek to extend to same-sex partners the right to marry the Supreme Court has found to exist between opposite-sex partners. The flaw in plaintiffs argument is that it ignores a basic tenet of Supreme Court substantive due process jurisprudence. The alleged fundamental interest at stake must be subject to a careful description. Glucksberg, 521 U.S. at 721. In view of the Supreme Courts direction that courts should be reluctant to expand the concept of substantive due process (id. at 721), this Court should reject plaintiffs request to expand the right to marry. It additionally bears emphasis that nothing

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precludes States from eliminating civil marriage, and it makes no sense to argue that a right whose very existence is subject to legislative grace is fundamental. Cf. Windsor, 133 S. Ct. at 2691 (The definition of marriage is the foundation of the States broader authority to regulate the subject of domestic relations with respect to the [p]rotection of offspring, property interests, and the enforcement of marital responsibilities. . . . [T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.) (citation omitted).
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b.

SmithKlines heightened scrutiny does not apply to Idahos marriage laws

Plaintiffs contend that the Ninth Circuits decision in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), requires the Court to apply heightened scrutiny to Idahos marriage laws. The ill-defined heightened scrutiny
Plaintiffs reliance on, most importantly, Turner v. Safely, 482 U.S. 75 (1987), and Zablocki v. Redhail, 434 U.S. 374 (1978), for the proposition that civil marriage is a fundamental right misses the point. Dkt. 61 at 45-47. In each of those cases, as well as in Loving v. Virginia, 388 U.S. 1 (1967), the challenged statute or regulation conditioned access to civil marriage for persons otherwise entitled to marry because of a specific status. Turner, 482 U.S. at 82 (prison warden approval required for inmates to marry non-inmates); Zablocki, 434 U.S. at 375 (judicial approval to marry required for non-custodial parents with child support obligations). The lesson of these decisions is not that civil marriage itself is a fundamental right but that the decision to enter into an otherwise lawful civil marriage cannot be encumbered by an individuals status, at least in a non-prison context, unless [the encumberance] is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Id. at 388; see Turner, 482 U.S. at 97-98 (although [n]o doubt legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry, and may justify requiring approval of the superintendent[,] . . . the Missouri regulation . . . represents an exaggerated response to such security objectives). However, neither of these decisions affects a States right to determine what constitutes civil marriage or gives credence to the argument that any such determination is subject to heightened scrutiny. Plaintiffs, in other words, have no fundamental right under the Due Process Clause to redefine marriage to their liking. They can, and do, challenge their exclusion from Idahos definition, but that exclusion raises potential equal protection concerns that are entirely discrete from substantive due process-based privacy rights.
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announced in SmithKline does not apply here. SmithKline held that heightened scrutiny applied to an act of intentional discrimination: a peremptory challenge of a prospective juror because he was gay. Abbotts counsel provided no valid justification for his strike (id. at 477), and the evidence of discriminatory motive was unrefuted (id. at 479). In the absence of any valid explanation for the strike, the Court concluded that it was the result of a false stereotype: a discriminatory assumption that the juror could not impartially evaluate the case because of his sexual orientation. Id. at 478. Idahos marriage laws present a completely different case. Idaho has defined marriage as a union between a man and a woman not based on a false stereotype or discriminatory assumption, but on irrefutable biological facts. Unlike Abbott, Idaho has come forward with valid justifications for its legislative definition of marriage. It confers the benefits of civil marriage on opposite-sex couples because they are biologically able to procreate and responsible for nearly all the children being raised in Idaho households. Idaho has chosen to focus its resources here, and not to extend civil marriage benefits to other couples or groups of people. Idahos marriage laws are based on legitimate

legislative choices, not the irrational stereotypes or animus decried in SmithKline. Accordingly, plaintiffs equal protection challenge of Idahos marriage laws should be reviewed under the rational basis standard, not SmithKlines heightened scrutiny. As the Supreme Court has explained: [W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.

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City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 441-42 (1985). See also Nguyen v. INS, 533 U.S. 53, 73 (2001) (To fail to acknowledge even our most basic biological differences . . . risks making the guarantee of equal protection superficial, and so disserving it.). c. Idahos decision not to recognize foreign same-sex and evasive marriages is rationally related to the legitimate purpose of protecting the States laws and public policy

Plaintiffs suggest that heightened scrutiny should apply to Idaho Code 32-209, which renders invalid marriages contracted outside Idaho in violation of the States public policy. The statute identifies same-sex marriages and marriages entered into with the intent to evade Idahos marriage laws to be against public policy. Plaintiffs argue that 32-209 is an unusual deviation from the place of celebration rule, but concede that the law has long-recognized a public policy exception to the place of celebration rule. Dkt. 59 at 50. The Supreme Court has held that the Full Faith and Credit Clause does not require a State to apply another States law in violation of its own legitimate public policy. Nevada v. Hall, 440 U.S. 410, 422 (1979). Plaintiffs make no showing that Idaho has ever recognized the marriage of samesex couples married elsewhere in the United States. The absence of such a showing is hardly surprising; such marriages were not lawful in any other State prior to enactment of 32-209even in Hawaii where a state constitutional amendment eventually resulted in dismissal of the Baehr litigation. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)

(remanding for trial on compelling governmental interest issue), on remand, Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996) (finding no compelling state interest), aff'd, 950 P.2d 1234 (Haw. 1997), revd and remanded, 994 P.2d 544 (Haw. 1999); see generally Dean A. Sorna, Civil Unions in HawaiiA One-Year Retrospective, 17-JUL Haw. B.J. 4, 5-6 (2013) (discussing history of Baehr

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litigation). The public policy exception has even greater strength where, as in this case, the couples who wish to have their out-of-state marriages recognized were Idaho residents who traveled to other jurisdictions to be married to avoid the restrictions of Idahos marriage laws. See, e.g., Restatement (Second) of Conflict of Laws 283 (out-of-state marriages not valid if they violate strong public policy of a state with most significant relationship to parties). Four plaintiffs fall into that category because, although Idaho residents, they traveled to California and New York to marry. Needless to say, to allow this form of evasion effectively negates the fundamental policy choice made by not only the state legislature but also Idahos electorate. See Dkt. 48 9-12; Dkt. 50 8, 13-15. The same conclusion applies to individualsnone of whom is presently before this Courtwho may have married in another State where they resided and thereafter moved to Idaho. Only by uniformly enforcing the non-recognition provision in 32-209 can Idaho vindicate its policy choice to limit marriage to opposite-sex couples. Idahos prohibition of plaintiffs evasive marriages is consistent with settled law and satisfies the rational basis test. 2. The Rational Basis Test

When properly applied, the rational basis test is a relaxed standard under which courts defer to legislative judgments, so long as there is a plausible basis on which the legislature could have based its statutory classification. See, e.g., Heller v. Doe, 509 U.S. 312, 319-21 (1993). Courts have repeatedly held that rational bases validly support marriage laws that limit marriage to opposite-sex couples. See, e.g., Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1014-18 (D. Nev. 2012); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1111-16 (D. Haw. 2012); Andersen v. King County, 138 P.3d 963, 982-83 (Wash. 2006);

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Hernandez v. Robles, 855 N.E.2d 1, 6-9 (N.Y. App. Div. 2006); Morrison v. Sadler, 821 N.E.2d 15, 22-31 (Ind. Ct. App. 2005). The Court of Appeals for the Eighth Circuit summarized some of the valid rational bases for opposite-sex marriage laws in Bruning: By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws encourage procreation to take place within the socially recognized unit that is best situated for raising children. . . . The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children . . . . But it is also based on a responsible procreation theory that justifies conferring the inducements of marital recognition and benefits on oppositesex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. ... [U]nder rational-basis review, Even if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule that . . . perfection is by no means required. . . . Legislatures are permitted to use generalizations so long as the question is at least debatable. . . . The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature-or the people through the initiative process-may rationally choose not to expand in wholesale fashion the groups entitled to those benefits. We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience. 455 F.3d at 867-68 (citations omitted). As discussed below, moreover, [t]he package of government benefits are not cost-free, and States therefore may rationally elect to direct their resources to those relationships that account for virtually all children in their jurisdiction. C. PLAINTIFFS MISCHARACTERIZE IDAHOS ASSERTED RATIONAL BASIS WHICH RESTS ON THE PROPOSITION THAT A STATE RATIONALLY MAY DETERMINE TO FOCUS ITS LIMITED RESOURCES ON FOSTERING THE STABILITY OF THOSE

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RELATIONSHIPS RESPONSIBLE FOR THE PROCREATION OF CHILDREN Plaintiffs crystallize Idahos asserted rational basis for 32-201 as fostering stability in opposite-sex relationships since only those relationships have biological procreative capacity. Dkt. 61 at 28. To be sure, this biological fact-of-life is integral to the asserted state interest but is merely one component of the States rationale for limiting marriage to opposite-sex couples. It is true that Idaho has a substantial interest in the well-being of children and that the institution of civil marriage provides one mechanism for creating home environments in which they may thrive. However, as plaintiffs

themselves recognize, that policy choice imposes governmental costs on Idahothe rationales final and ultimately dispositive component. See Dkt. 42 37. So, for example, married couples have the ability to elect between joint and single tax income return filing and, as such, to employ that filing route that results in the lesser tax liability. See generally Saby Ghoshray, Dual Rationality of Same-Sex Marriage: Creation of New Rights in the Shadow of Incomplete Contract Paradigm, 28 New Eng. Roundtable Symp. L.J. 59, 82 (2007) (When two individuals get married, the total tax payment, in general is less than the sum of the taxes paid as individuals. This

redistribution of tax is seen as an economic benefit to the marriage and can be seen as a cost to society.). They also have access to the judicial system for the purpose of dissolving their marriageaccess that has economic costs to the system. That access and the related costs will necessarily expand if civil marriage is extended to same-sex couples. See generally Ellen Shapiro, Til Death Do Us Part: The Difficulties of

Obtaining a Same-Sex Divorce, 8 NW J. L. & Soc. Poly 208, 226 (2013) (Although few advocates for same-sex marriage want to talk about divorce, with such a high divorce rate, same-sex marriage advocates should be thinking about divorce, especially if samesex marriage continues to be acknowledged in some states and not others. The right to
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marry typically carries with it the right to divorce.). Plaintiffs give at most a passing nod to Idahos interest formulation. Instead, they make an elaborate factual showing in Dr. Michael E. Lambs declaration (Dkt. 47) that actually militates against their position. Plaintiffs also rely on six post-Windsor district court decisionsthree of which are discussed in defendants earlier memorandums (Dkt. 30-1 at 17 n.8; Dkt. 41-1 at 6-8)that have found no rational basis for differential treatment of opposite-sex and same-sex couples. As developed below, none of these decisions addresses Idahos asserted interest. 1. Dr. Lambs Declaration
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Plaintiffs rest on Dr. Lambs declaration as the foundation for their contention that no rational basis exists for limiting marriage to opposite-sex couples. The declarations basic thesis is uncomplicated: Current social science research has reached a consensus that several factors predict healthy development and adjustment of children and adolescents. Dkt. 47 18. The factors include the quality of the childrens relationship with their parents or parent figures[,] the quality of the relationships between parents or

Plaintiffs criticize Defendants [for] never articulat[ing] what they mean by the States limited resources. Dkt. 61 at 28 n.8. They add that even if Defendants could demonstrate that allowing same-sex couples to marry would negatively affect state expenditures or resources in other wayssomething they have not even attempted to dothat still would not justify conserving resources by singling out a disfavored set of citizens for unequal treatment. Id. However, the rational basis standard does not require Defendants to demonstrate the precise extent of the fiscal impact of extending marital status eligibility to same-sex couples; it is enough that such an impact is plausibleas Plaintiffs effectively concede in their amended complaint. That standard also does not require Idaho to justify the differential treatment accorded opposite-sex and same-sex couples; it imposes on Plaintiffs the burden to negate every conceivable rational basis for the discriminatory treatment. Here, however, demographic data reflecting the statistically insignificant number of same-sex households with children affected by the unavailability of marital status more than adequately justify Idahos determination to cabin its expenditure or loss of governmental resources by addressing those relationships between individuals whose differing sexes are prerequisites to procreation. See Dkt. 30-1 at 12-13 & n.5; Dkt. 34.
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significant adults, and the availability of adequate economic and social resources. Id. The research demonstrate[s] that the correlates of childrens or adolescents adjustment . . . are important regardless of whether children and adolescents are raised in traditional family settings or nontraditional families and that it has been well established that children and adolescents can adjust just as well in nontraditional settings as in traditional settings. Dkt. 47 23. This research further demonstrate[s] that the adjustment of children and adolescents of same-sex parents is determined by the quality of the youths relationships with parents, the quality of the relationship between the parents, and resources available to the families. Dkt. 47 33. Dr. Lamb completes his basic analysis with the conclusion that the presence or absence of the adjustment correlates is unaffected by same-sex status of the parent or parent figures. Dkt. 47 14. He further states that [t]he children and adolescents of same-sex parents are as emotionally healthy, and as educationally and socially successful, as children raised by different-sex parents. Dkt. 47 34; see also id. 13 ([c]hildren and adolescents raised by same-sex parents are as likely to be well-adjusted as children raised by different same-sex parents, including biological parents). No optimal gender mix of parents[,] in short, exists. These conclusions derive from approximately
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30 years of scholarship and . . . more than 50 peer-reviewed reports. Dkt. 47 32. Dr. Lamb completes the declaration by opining that even if children in same-sex parent families had poorer outcomes on average (which, as discussed above, they do not), that would be a reason to encouragenot barmarriage by same-sex couples given the fact that marriage offers families important resources and support. Dkt. 47 49. In essence, therefore, Dr. Lamb sees no credible social science support for the
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The traditional family setting consists of a middle-class family with a bread-winning father and a stay-at-home mother, married to each other and raising their biological children. Dkt. 47 21. A nontraditional family is any kind of variation from this pattern. Id.

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proposition that children or adolescents in traditional or nontraditional opposite-sex families with married parents adjust better than their counterparts in same-sex families with unmarried partners. Marital status may have certain benefitsresources and

supportbut absence of those benefits, according to Dr. Lambs analysis, has not affected the comparable adolescent-adjustment found in same-sex families whose parents have not had, until quite recently, the option of civil marriage in a minority of States. This conclusion is double-edged because, on one hand, it discredits the contention that opposite-sex households represent the model for optimal childrearing but, on the other, is incompatible with the contention that a legislative determination not to spend additional governmental resources by expanding civil marriage to same-sex couples is unreasonable. Simply put, same-sex households are doing as well as opposite-sex

households without access to civil marriage. Plaintiffs ignore the double-edged quality of Dr. Lambs declaration, choosing instead to focus on the outcome-comparability of same-sex households. Dkt. 61 at 30-35. Idaho, however, has not argued the contrary; i.e., it has never suggested that children in same-sex households have a lessened likelihood of successful adjustment. Plaintiffs silence cannot be attributed to the lack of notice as to the double-sided nature of their position, since Idaho explicitly made the point in its opening memorandum. Dkt. 30-1 at 18-19 (if same-sex household children in fact do thrive equally well without marriage, less need to incentivize those households stability exists than in the opposite-sex context where the correlation of marital status to improved outcomes is plainly plausible). Idaho also has never contended, contrary to Plaintiffs suggestion, that limiting civil marriage to opposite-sex couples somehow affect[s] opposite-sex couples incentives to raise their biological children within a marital relationship. Dkt. 61 at 30-31. Plaintiffs silence has only one explanation. They have no response that solves the dilemma posed by Dr.

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Lambs declaration. 2. Recent District Court Decisions

Three decisions addressing the issues raised in this matter have issued subsequent to Idahos submission of its motion to dismiss. Bostic v. Rainey, No. 2:13cv395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) (summary judgment as prohibition and nonrecognition of out-of-state same-sex marriages); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 14, 2014) (summary judgment as to non-recognition of out-of-state same-sex marriages); DeLeon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) (preliminary injunction issued as to nonrecognition of out-of-state same-sex marriages, but order stayed pending appeal). Each of these cases discusses the grounds asserted in support of the challenged law, but none of the defendants advanced the rationale involved here. In Bostic, the district court rejected reliance on what it characterized as the
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tradition, appropriate balance regarding federalism and for-the-children rationales for Virginias restriction of marital status to opposite-sex couples. 2014 WL 561978, at *14-*20. The court deemed the last of these rationales as comprising

responsible procreation and optimal child-rearing considerations. Id., at *17. It accepted as beyond serious debate that [g]ay and lesbian couples are as capable as other couples of raising well-adjusted children. Id., at *18; see also id., at *19 (the for-the-children rationale rests upon an unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents). The court further found no
Two other decisionsTanco v. Haslam, No. 3:13-cv-0115, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) (memorandum granting preliminary injunction against enforcement of Tennessee non-recognition statute), and Lee v. Orr, No. 13-cv-8719, 2014 WL 638680 (E.D. Ill. Feb. 21, 2014) (declaring opposite-sex marriage statute repealed as of June 1, 2014 unconstitutional)do not warrant separate treatment. Neither decision discussed substantively the rational basis issue. A third decision, McGee v. Cole, Civ. Action No. 3:13-24068, 2014 WL 321122 (S.D.W. Va. Jan. 29, 2014), falls into the same category. See id., at *10
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impact from extending eligibility for marital status to same-sex couples on whether other individuals will marry, or how other individuals will raise families (id., at *18) and instead held that the for-the-child ground, if credited, would threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating (id., at *19). The Bourke court similarly rejected the tradition basis offered by the

governmental defendants (2014 WL 556729, at *7) and various other rationales offered by an amicus curiae that included responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the optimal childrearing environment, and proceeding with caution when considering changes in how the state defines marriage (id., at *8). As to the latter, the district court cited with approval the post-Windsor decisions in Bishop, Kitchen and Obergefell. Id. It added that [t]he exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds and that no one has offered evidence that same-sex couples would be any less capable of raising children or any less faithful in their marriage vows. Id. The opinion in DeLeon considered and found insufficient childbearing, 2014 WL 715741, at *14-*17. As to

procreation and tradition rationales.

childbearing, the court agree[d] with other district courts . . . that there is no rational connection between Defendants assertion [that denying marriage to same-sex couples positively affects childbearing] and the legitimate interest of successful childbearing. Id., at *14; see also id., at *16 ([s]ame-sex marriage does not make it more or less likely that heterosexuals will marry and engage in activities that can lead to procreation). It additionally could find no effect of recognizing same-sex marriages on opposite-sex couple childrearing. Id., at *15. As to the procreation rationale, the district court

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observed that procreation is not and has never been a qualification for marriage. Id. The only aspect of these decisions arguably relevant here is the availability of civil marriage to individuals who are incapable of having children or choose not to have them. However, as discussed in Idahos opening memorandum (Dkt. 30-1 at 16 n.7), the rational basis standard does not require legislative classifications to be drawn with mathematical nicety (Dandridge v. Williams, 397 U.S. 471, 485 (1970)). See, e.g., Doe v. United States, 419 F.3d 1058, 1063 (9th Cir. 2005) (A statute does not fail rationalbasis review because it is not made with mathematical nicety or because in practice it results in some inequality. . . Rather, the constitutional test requires only that the statute, as a general matter, serve a legitimate governmental purpose.) (citation omitted). Attempting to restrict civil marriage to couples who intend to have children would demand governmental inquiry into sensitive matters of personal privacy and raise insuperable, or at a minimum very significant, privacy-based constitutional concerns. E.g., Carey v. Population Servs., Inc., 431 U.S. 678, 685 (1977) ([t]he decision whether or not to beget or bear a child is at the very heart of [a] cluster of constitutionally protected choices); Marsh v. County of San Diego, 680 F.3d 1148, 1153 (9th Cir. 2012) ([t]he Supreme Court has recognized that one aspect of the liberty protected by the Due Process Clause of the Fourteenth Amendment is a right of personal privacy, or a guarantee of certain areas or zones of privacy) (some internal quotation marks omitted); Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1208 (2005) (In its earliest formulation, the right to privacy was used essentially to protect the family structure. . . . Courts have since found, however, that the right to privacy also protects important parental decisions such as whether to bear children, who has control over children, and other decisions related to procreative autonomy.) (citations omitted), amended and reaffirmed, 447 F.3d 1187 (9th Cir. 2006) (per curiam). None of the recent decisions or the earlier post-

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Windsor opinions has addressed this element of rational basis analysis. III. CONCLUSION For the foregoing reasons, Idaho respectfully requests that the Court grant the motions to dismiss and deny plaintiffs summary judgment motion. DATED this 20th day of March 2014. STATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL

By:

/s/ W. SCOTT ZANZIG CLAY R. SMITH Deputy Attorneys General

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 20th day of March 2014, I electronically filed the foregoing DEFENDANT RICH AND DEFENDANT-INTERVENOR IDAHOS COMBINED RESPONSE TO MOTION FOR SUMMARY JUDGMENT (DKT. 45) AND REPLY IN SUPPORT OF MOTION TO DISMISS with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following Persons: Deborah A. Ferguson d@fergusonlawmediation.com Craig Harrison Durham craig@chdlawoffice.com Shannon P. Minter sminter@nclrights.org Christopher F. Stoll cstoll@nclrights.org Thomas Perry tom.perry@gov.idaho.gov Cally Ann Younger cally.younger@gov.idaho.gov

/s/ W. Scott Zanzig

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LAWRENCE G. WASDEN ATTORNEY GENERAL STEVEN L. OLSEN Chief of Civil Litigation Division W. SCOTT ZANZIG, ISB # 9361 CLAY R. SMITH, ISB # 6385 Deputy Attorneys General Civil Litigation Division Office of the Attorney General 954 W. Jefferson Street, 2nd Floor P. O. Box 83720 Boise, ID 83720-0010 Telephone: (208) 334-2400 Fax: (208) 854-8073 scott.zanzig@ag.idaho.gov clay.smith@ag.idaho.gov Attorneys for Defendant Rich and Defendant-Intervenor

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

SUSAN LATTA et al., Plaintiffs, vs. C.L. BUTCH OTTER, as Governor of the State of Idaho, in his official capacity, and CHRISTOPHER RICH, as Recorder of Ada County, Idaho, in his official capacity, Defendants, and STATE OF IDAHO, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:13-cv-00482-CWD

DEFENDANT RICH AND DEFENDANT-INTERVENORS STATEMENT OF MATERIAL FACTS RE PLAINTIFFS MOTION FOR SUMMARY JUDGMENT (DKT. 45)

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Defendant Christopher Rich and Defendant-Intervenor State of Idaho submit a statement of material facts pursuant to Idaho Dist. Loc. Civ. R. 7.1(b)(1). 1. Civil marriage between members of the same sex has never been authorized

under Idaho territorial or state law. E.g., 1864 Idaho Terr. Sess. L. 613; 1889 Idaho Terr. Sess. L. 40; 1901 Civ. Code Ann. 1990; Idaho Code 32-202. 2. Plaintiffs Susan Latta and Traci Ehlers were Idaho residents at the time of

their marriage in the State of California. Dkt. 46 1-6. Plaintiffs Lori and Sharene Watsen were Idaho residents at the time of their marriage in the State of New York. Dkt. 46 1-18; Dkt. 51 9-13. 3. The demographic facts identified on pages 12 and 13 in Dkt. 30-1, as

corrected in Dkt. 34, are accurate and derived from the sources identified on such pages. 4. The documents appended as Docket 30-2 through Docket 30-10 are

accurate copies of what they purport to be. DATED this 20th day of March 2014. STATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL

By:

/s/ W. SCOTT ZANZIG CLAY R. SMITH Deputy Attorneys General

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 20th day of March 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following Persons: Deborah A. Ferguson d@fergusonlawmediation.com Craig Harrison Durham craig@chdlawoffice.com Shannon P. Minter sminter@nclrights.org Christopher F. Stoll cstoll@nclrights.org Thomas Perry tom.perry@gov.idaho.gov Cally Ann Younger cally.younger@gov.idaho.gov

/s/ W. Scott Zanzig

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